Added: Davonna Allard - Date: 29.08.2021 03:41 - Views: 27308 - Clicks: 1279
The shadow minister for Aboriginal affairs, Mr Daryl Melham, said in the House of Representatives quite correctly that the bill is wrongly named. This is a piece of hairy-chested political nonsense that this parliament should not be proceeding with. The fact is that nothing now will prevent the construction of this bridge. The bill is not only unnecessary and it is not only obnoxious, it is also a massive vote of no confidence in the Minister for Aboriginal and Torres Strait Islander Affairs on the way through.
Clearly, the cabinet, when it determined that this measure was required, did not have enough confidence in the Minister for Aboriginal and Torres Strait Islander Affairs to properly discharge his duties under process. The fact is there is no protection order in existence to prevent the construction of this bridge. There is also no way in which the minister can be legally compelled to issue one. I am testing my memory here. I am going back a lot of years and I have not bothered looking it up.
If I am wrong, I am wrong, but I have a clear recollection of what I believe was the first occasion that this legislation was ever used. I stand to be corrected on it. I have not had time to look it up in the Hansard. I think it was in relation to a dam in Western Australia.
It was an acting minister for Aboriginal affairs, from memory, who was responsible—I think it was the then Senator Susan Ryan—the minister, I think it was Mr Holding then, being absent. The processes were implemented under the heritage protec tion act in relation to claims that the dam had in fact damaged a sacred site in its Do you need an ass Hindmarsh Island.
An inquiry was conducted. The inquiry found that indeed the dam had damaged the site. There was no argument about that but, because the construction of the dam was at that stage ificantly advanced and because a ificant public purpose was served to the local communities in the water supplies that came from that dam, the acting minister declined to halt the construction. That action, of course, is completely open to the minister under this act.
It is not an act that requires the minister to stop everything at the end of the day. That discretion is available. As a result of the Boobera Lagoon case, if it was not clear before, it has been clear since that the minister cannot be compelled to issue a protection order.
This, of course, has all been canvassed in a Senate committee, but I would be delighted to hear the Minister for Aboriginal and Torres Strait Islander Affairs Senator Herron make out his case here today. The fact is, as I have stated, there is no protection order stopping the construction of this bridge now that all that has happened in the past has happened. There is no way that the minister can be compelled to issue such an order.
So far as the heritage protection act is concerned, there is nothing stopping the construction of the Hindmarsh Island bridge. We are moving an amendment to this legislation to correct the most obnoxious potential effects of it as far as we are concerned. That is, the provisions of this act will override the provisions of the Racial Discrimination Act.
This is a backdoor attempt to do so, and not a particularly edifying one. I was interested to see—and I know that all honourable senators will be interested to note, and those who were in fact in attendance at the committee will already know—that alternative proposals to address this issue, should the government feel that such clarification is necessary, are available to the government.
When those legislative proposals were put to the committee, the department of the Attorney-General in evidence to the committee confirmed that those legislative proposals would in fact do the job. Senator Harradine —Did you say you had an amendment?
If it has not been circulated, I will simply read it out. Can I say, Senator Harradine, that it is an amendment you will have heard before. This is not a unique amendment. It was successfully moved—. It was not only moved in relation to the Social Security Act but also happily accepted by the government with no problem at all.
I think it was Parliamentary Secretary Tambling who accepted it on behalf of the government. I foreshadow the amendment, which is clear in its terms, and I will provide a copy of it to the clerks. It re:. An amendment in like terms, as senators in here know, was moved in relation to the social security legislation. We don't intend these provisions under the Social Security Act to infringe on the provisions of the Racial Discrimination Act. We don't think it's necessary to accept this amendment, but because we don't intend to infringe on the Racial Discrimination Act anyway, we'll accept it quite happily,' and reference to the Hansard will show that.
I wonder—and I look forward to hearing this from the minister this morning—if it is a matter of no consequence for the government to accept such an amendment in respect of recipients of certain social security payments in Australia, why should Aborigines be denied precisely the same amendment?
That is precisely what the case comes down to here today if the government wants this legislation passed. The situation is this: if this amendment is carried, we will support the amended bill. It will satisfy our concerns that there will be no transgression of the Racial Discrimination Act and that the parliament will have made this intention crystal clear to a court.
If the amendment is opposed, then we will oppose the bill. But there is a job for the government here in the Senate this morning.
I have copies of the Hansard if honourable senators want me to read out what Senator Tambling said. It is here. I know Senator Harradine was here when it was said. I was here, along with Senator Bolkus. He does not need to read it out. Senator Tambling said, and I repeat it, that the government had no difficulty accepting this precise amendment at all—it was not necessary and the government did not intend to circumvent the RDA by the back door; therefore, they had no problem accepting it. The job for the government here in the Senate during this debate, if it wants this legislation passed, is to explain to the Senate and to Australia why people in receipt of certain social security benefits can have this protection inserted in law but Aborigines cannot.
I have to say that I have tried to construct the thinnest of arguments to explain that, and I cannot. So I will be fascinated to hear what the minister says about it. I repeat again for the benefit of the minister: should the amendment that I foreshadowed be carried by the Senate, we will support the amended bill. But, if it fails, then we will oppose this particular piece of legislation. I said earlier that proposals were put to the Senate committee that considered this issue of an alternative form of legislation should the government feel it necessary.
It was Frank Brennan who put those proposals. I do not Do you need an ass Hindmarsh Island with everything Frank Brennan says or does, but even his worst enemies would concede that he is acknowledged as being one of the more competent legal specialists in this area of law in Australia today.
Even his worst enemies would concede that. I was interested in the response of the Attorney-General's Department to those proposals that he put. It is indeed a policy issue for the government as to whether such an approach would be preferred. I must say, for what it is worth, which is nothing at all, that as a non-lawyer I simply agree with the commonsense position that Frank Brennan put to the committee in respect of whether the Aboriginal and Torres Strait Islander Heritage Protection Act itself is a special measure or not. For what it is worth, which is nothing, I think the position of the Attorney-General's Department is wrong, particularly in respect of recent judgments.
I would be happy to put a substantial wager on the High Court having that view as well, certainly as the High Court is currently constituted. But whether or not you accept that it is a special measure, I certainly agree with Frank Brennan that it is not relevant to this debate. Again, as a non-lawyer, and I know this does not always work in law, in terms of simple English, commonsense and a fair outcome, how could you possibly accept this bill as a special measure for the Ngarrindjeri people?
Leave aside all other Aborigines in Australia: how could you possibly do that? Have a look in the international treaty at the definition of what a special measure is. The bottom line of that, unsurprisingly, is that special measures are for the benefit of minority groups, not to their detriment. A-G's has constructed a very creative argument—almost as creative as the High Court has been in recent times in certain respects—that, providing an act did not provide for an outcome which was a lesser outcome than all of the people in a community enjoyed, it could be claimed to be a special measure.
I think that is a piece of nonsense.
It is impossible in my view to seriously argue, in non-legal terms at least, for a measure which removes rights and opportunities that people have who are characterised as a group, and that is the Ngarrindjeri people. This bill without question discriminates or purports to discriminate against their interests as against the interests of all other Aborigines in Australia. What this bill does is say, yes, all other Aboriginal people in Australia can utilise the heritage protection act to protect particular parts of their heritage but the parliament says that the Ngarrindjeri people, the women particularly, in respect of this particular part of their heritage, cannot have the benefit of that act.
How insidious. Forget the law, because the law is often an ass, as we know. In terms of simple justice, how can you seriously, with a straight face, as minister for Aboriginal affairs, argue that the people who are the subject of this act are not adversely discriminated against? Of course they are. The terms of the bill lay that out only too clearly. It is not a special measure for their benefit.
I am not having a go at lawyers. They are doing their job. The lawyers in Attorney-General's have a brief to put the best possible construction on the policy direction in which the government wants to go; they have done their job, and, in law, they may be right. In terms of the purpose for which special measures are intended by their simple definition—that is, for the benefit of a group—how could the minister for Aboriginal affairs, who is not a lawyer but the minister for Aboriginal affairs, argue with a straight face?
He can put a legal argument on behalf of the Attorney-General's Department. He can repeat those words that were uttered to the Senate committee, but how could he with a straight face as the Minister for Aboriginal Affairs say this is a special measure for the benefit of the Ngarrindjeri people, for whom it is intended?Do you need an ass Hindmarsh Island
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