The Manner Of Enactment Of The Native Title Act 1993
From Part 2 of 'The High Court In Mabo ' by LJM Cooray (1995)

The Native Title Act 1993 (henceforth the Act) is a long, complex, and detailed piece of legislation. It contains 253 sections covering 127 pages, and is accompanied by two Explanatory Memoranda constituting another 119 pages. There are a number of criticisms which can be made of the Bill which are summarised below.

Indecent Haste

Complexity

Uncertainty

Ambiguity

Consequences

Indecent Haste
The Act is potentially one of the most profound, even revolutionary, pieces of legislation ever passed in the Australian Parliament. Indeed, it is hardly possible to exaggerate the implications of the Bill for Australia's future. Therefore, there is no possible realistic justification for the absurd haste with which the legislation was drafted and with which the Government demanded that it be considered by the Parliament.

Complexity
It bears eloquent testimony to the complexity of the Act that the government was compelled to issue Explanatory Memoranda of greater length than the Act itself! It is axiomatic that a Act which seeks to introduce such extensive change should be as clear and precise as possible.

Uncertainty
Perhaps one of the greatest criticisms of the Act is the extreme uncertainty which it creates. For example, it is not clear:

1. What types of land might be subject to a native title claim?
2. What sort of evidence will be required to establish a native title claim?
3. How strict or otherwise will the Native Title Tribunals be in considering evidence of native title?
4. on what indicia will the tribunals decide on the issue of compensation, particularly quantum?
5. What assurance is there that the future development of Australia's agricultural and mineral wealth will not be severely disrupted?

The Chief Executives of sixteen of Australia's largest mining companies were so concerned about these and other issues that they placed a full page advertisement in national newspapers:

The Commonwealth's Native Title Bill will make land management very difficult and leave open many questions which will require resort to the courts. This will lead to considerable delay, expense and uncertainty. The continuing uncertainty will jeopardise development, diminish and delay investment, and reduce economic growth and employment opportunities. It will cause investment to be diverted away from Australia. All Australians, including Aboriginal Australians, will bear the ultimate cost." (Sydney Morning Herald, 11-12-93, p.16) Native Title and the Common Law

The Act purports to adopt the common law definition of native title. It is difficult to understand how such a definition was reached as the concept of native title is quite unknown to the common law. It is a concept which has no meaning in the Australian legal system.

In the absence of any precedent whatsoever about the meaning of native title, one is left to wonder how the Native Title Tribunals will grapple with the concept.

Ambiguity
A cursory reading of the Act reveals that it was drafted in extreme haste. This has resulted in some sections being very unclear and susceptible to a variety of interpretations For example, section 225 purports to define the meaning of the term "determination of native title". This section is crucial to the operation of the entire Bill:

A determination of native titles is a determination of the following:

• Whether native title exists in relation to a particular area of land or waters;
• if it exists:
  1. Who holds it; and
  2. whether the native title rights and interests confer possession, occupational use and enjoyment of the land or waters on its holders to the exclusion of all others; and
  3. if not, the nature and extent of the native title rights and interests; and
  4. in any case — the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

The lack of clarity and the extent of the ambiguity implicit in section 225 is staggering:

1. Is native title proved by:
   • possession;
   • occupation;
   • use;
   • enjoyment;
   • all of the above?
2. What is the difference between possession, occupation, use and enjoyment and how are these terms defined?
3. What other possible native title right or interest could there be other than possession, occupation, use or enjoyment?

The Bill does not define "native title".

This sort of ambiguity is exacerbated by the failure of the Act to provide guidance on so many issues — a responsibility which it flagrantly abrogates to the courts and tribunals.

Consequences
There can be no doubt that the passage of the Bill has been adverse for the future of Australia. The ownership of thousands of square kilometres of Australia will depend upon drawn out and utterly uncertain legal process. People who have owned land for generations — and invested everything to improve it —will be dispossessed by other people because of the colour of their skin.

The Act effectively replicates some of worst aspects of Apartheid. It says all Australians will have the same system of land ownership — unless they call themselves Aboriginal, in which case they can have the benefit of a separate system of land ownership. This virtually guarantees the separate development of Aboriginal Australians and everyone else. Does Mr. Keating really want Apartheid in Australia?

How any MP could have voted in favour of this Bill is beyond my comprehension.

A letter was circulated by the Secretary of the Senate Standing Committee on Legal and Constitutional Affairs, Parliament House asking for views on the provisions of the Native Title Bill 1993.

The letter said

"the Committee is interested to obtain views on the various legal and constitutional issues, the impact of the legislation upon the aboriginal and highlander community, or its effect upon primary and secondary industry. Any other issues which you feel should be considered may also be addressed in your submission".

The letter was dated 26 November 1993 and it reached me on 30 November 1993. This means there is barely a week within which to write a submission. Given the wide ranging nature of the issues on which submission may be presented and the importance of the subject, the time provided for submissions is woefully inadequate (to put it mildly). Choosing my words carefully as a lawyer, I venture to say that it is ridiculous to request submissions within this time frame.

It is significant that the Committee is to report to Senate by 9 December 1993. Submissions may be forwarded up to 6 December 1993. The Committee has to prepare its report and submit it by 9 December 1993. It appears obvious that the Committee will not have time to peruse most of the submissions within the time frame. It is therefore an insult to the people to request submissions most of which in all eventuality will not be read.

The Native Title Bill has enormous implications for the future of Australia. If our politicians have a commitment to democratic processes and traditions a minimum period of six months was required for public debate, submissions on the Bill and examination of such submissions.

Time for debate was not provided by Parliament. The Bill was rushed through. This is one more indication that Australia is on the road to totalitarianism and serfdom.

Electors generally have short memories. But by the time of the next election the people will see the havoc which will be caused by the implementation of the Native Title Bill, in the context of the Mabo decision. Mabo is in my opinion the worst decision in the history of the jurisprudence of the High Court.

The people of Australia at the next federal election have an opportunity to pass judgment on those who voted for the Native Title Bill and on the Coalition for its weak and token opposition. Their problem is that they wish a plague on the ALP, the Coalition, the Australian Democrats and the Greens but where is the alternative?