E&OE..........................................................................................................................
O’BRIEN:
John Howard, the Aboriginal negotiating group on Wik has described your statement last night as an ingenious engineering of social disharmony. An attempt to confuse the nation rather than a leadership speech. Does that response suprise you?
PRIME MINISTER:
No, I don't think they agree with me on this. It’s obvious but it is not that. It was a balanced, honest attempt to try and put the thing in perspective and to point out that it is a middle course. There is no way that my plan is a sell out of the Aborigines to the benefit of the farmers but it equally it is a determined attempt to give effect to the principles of the Wik and Mabo decisions, whilst removing the uncertainty that was created by the way in which the Wik decision changed the law.
O’BRIEN:
The Aboriginal negotiating group has criticised you for using the term farmers throughout your statement last night rather than graziers or pastoralists which they say would be much more accurate. They say that most farmers have freehold land that is not subject to native title. They see your reference to farmers as quote: "a seemingly deliberate attempt to further confuse the issue".
PRIME MINISTER:
Well look that’s not right. It’s not right at all. A lot of farmers don’t have freehold. There are a lot of things called agricultural leases. There are other forms of leases in the rural area of Australia. There are a lot of generic terms that one can use in this situation and I was very careful last night to describe the segment of rural leaseholds, if I can use another generic expression that were subject to native title claims as a result of the Wik decision, as pastoral leaseholds.
O’BRIEN:
Are you comfortable with the Deputy Prime Minister, Tim Fischer and your Special Minister of State, Nick Minchin, throwing freehold land back into the native title equation?
PRIME MINISTER:
Well they haven’t done that. All they have done is to defend against a Labor amendment. Something that confirms what we all say is the law and it is always wise you know, for the sake of more abundant caution - to use an old legal expression - to confirm what you think the law is. And I want to know why it is that the Labor Party wants to take out of our bill a clause that says you cannot make a native title claim on freehold or other kinds of tenure that grant exclusive possession. If Mr Beazley is so satisfied that that is the law, why does he object to a clause confirming that it is the law.
O’BRIEN:
Don’t you think that the High Court has made it clear that native title has no chance of affecting suburban backyards?
PRIME MINISTER:
I think that is the law.
O’BRIEN:
Well isn’t it?
PRIME MINISTER:
Well I am not certain because there has been no specific test case on that proposition.
O’BRIEN:
And you accept that the Native Title Tribunal has said that it will not even accept a native title claim over freehold land?
PRIME MINISTER:
I do but I also recall Kerry, that prior to the Wik case that involves the Waanyi people, the Native Title Tribunal refused to accept an application in relation to a pastoral leasehold, only to be later told that it had to, as a result of the proceedings taken in the Federal Court. We are not trying to run a scare campaign on suburban freehold. I don’t think that suburban freehold is any way affected.
O’BRIEN:
Then why did the Deputy Prime Minister write a letter to a woman in a suburb of a country town and say your backyard could be affected by native title claims?
PRIME MINISTER:
Kerry, what is happening is that we are putting a clause in the Bill to make it beyond any argument that freehold is not subject to a native title claim and the Labor Party wants to take that out.
O’BRIEN:
Well why not have that as an absolutely separate stand-alone clause rather than having other things with it that might make it more difficult for the Opposition to do that?
PRIME MINISTER:
I tell you why, because the High Court, in the Wik case, said that any tenure that granted exclusive possession ruled out the possibility of native title. So it is not only freehold but it is also commercial leases, residential leases, I mean the sort of leases that people have here in Canberra, for example, fall into the category of exclusive possession tenures but they are not freehold. Now the High Court in the Wik case said that they are all in the same category.
O’BRIEN:
And are you suggesting that if somebody took out a native title claim on a suburban backyard in Canberra, that it has a genuine chance of success in the High Court?
PRIME MINISTER:
Kerry, I don’t think it has, I don’t believe it has, but why not go the extra step and make certain that it doesn’t happen.
O’BRIEN:
If you don’t believe it does, isn’t it inflammatory, given the mood that is around at the moment, to even throw it into the equation?
PRIME MINISTER:
No, I do not believe it is inflammatory, at all, because I think what you need to do is adopt an approach of more abundant caution.
O’BRIEN:
Independent Senator, Brian Harradine is looking for change from you on the sunset clause of six years to lodge all native title claims, are you prepared to give ground on that?
PRIME MINISTER:
I have said all along that we are not prepared to entertain amendments which alter the main principles of the Bill. Senator Harradine, I understand is still presenting amendments, and he is to have further discussions with Senator Minchin and at some stage there may be discussions involving myself. There haven’t been any yet. That obviously is one of the things that was in the 10-Point Plan. That remains our position but I don’t want to get into a situation where I am...you have got a moveable feast in the Senate while I am bit-by-bit ruling this in or that out.
O’BRIEN:
Apart from the sunset clause Senator Harradine also feels the registration test for native title claims is too harsh, under your plan, would you regard that, as well as the Sunset Clause, as being peripheral or at the core of your plan?
PRIME MINISTER:
I think the registration test needs to be stronger than it is now, I don’t know precisely.
O’BRIEN:
As strong as you have got in your legislation now?
PRIME MINISTER:
Well obviously yes.
O’BRIEN:
So you are not prepared to give ground on that?
PRIME MINISTER:
Well I don’t know precisely what he is proposing on that.
O’BRIEN:
The legal advice that you have had when you talk about certainty, you have said that you are certain that this will pass any constitutional test but your own Chief General Council has warned you that your plan might breach the Racial Discrimination Act on at least three key points, many other prominent lawyers say the same thing. How can you guarantee certainty?
PRIME MINISTER:
Well as far as the constitutionality of it is concerned we have published some opinions, one from the Solicitor-General and one from a private council, I think, Mr Jackson, saying that the Bill is perfectly constitutional.
O’BRIEN:
But you won’t also publish the advice from your Chief General Council who says, and he has stipulated three clear points on which he believes it might breach the Racial Discrimination Act.
PRIME MINISTER:
In adopting the attitude we are to that we are adopting the same practice that the former Government did and I can only repeat what Senator Minchin and the Attorney-General have said. And that is, on the balance of the advice available to us, satisfies us that the legislation is not racially discriminatory.
O’BRIEN:
The Solicitor General, who you do quote, said to a Senate Committee recently "Why ask me for an opinion. My opinion is not worth anything. You are going to get it from the court. That is the one that matters." That’s hardly an expression of self confidence of how the High Court may or may not rule on your legislation?
PRIME MINISTER:
Lawyers always say thing like that.
O’BRIEN:
Well then how can you be sure?
PRIME MINISTER:
He is the Solicitor-General and we have also had advice from private counsel but Kerry, there is no law of the Australian Parliament that is ever immune from challenge.
O’BRIEN:
You talked about your fulsome commitment to the reconciliation process, how can you hope to convert that fulsome commitment to reality, when Australia’s entire mainstream Aboriginal leadership, it seems, has not only rejected but condemned your Wik plan as it stands.
PRIME MINISTER:
I am an optimist about the reconciliation process. I believe reconciliation involves things other than the argument about native title. It involves lifting the health, education, employment and other opportunities available to indigenous people. There is a strong commitment on the part of my Government to the process of reconciliation. I know that the way that we are proposing to go about native title they don’t agree with. I believe that it does strike a fair balance and my fear is, that if another approach were adopted which was less fair to other sections of the community, then that would do more damage to the reconciliation process than what they claim my approach is doing.
O’BRIEN:
Very briefly, if this Senate debate does collapse, if your plan is not passed to your satisfaction by the Senate, what else do you have in your leadership kit bag to lead Australia out of this divisive mess?
PRIME MINISTER:
I think the extent of the division that this would ultimately cause if it went to a double dissolution has been greatly exaggerated. Let us suppose for a moment that the legislation is rejected by the Senate twice or amended in an unacceptable form. We shouldn’t assume from that that any subsequent double dissolution election would only be fought on the issue of native title. I don’t believe this country will ever have in my lifetime a race election. I think, you said a moment ago about using, doing inflammatory things.
Can I say the references that many have made to a race election - and I am sorry to say many in your profession have done that too easily and too glibly - they have really done this whole thing a great disservice. If the thing does go to a double dissolution, there will be other issues which I believe will assume a far greater importance in the ensuing election campaign. I don’t believe we will have an unmanageable race election if there is a double dissolution based inter alia on the Senate’s rejection of the Native Title legislation, and I think the use of that term, the intrusion of the very idea of a race election, is designed in a sense by some who bully the Government out of the course that it is resolved upon.
Now I want the Senate to pass the legislation. I hope it does. And it would be in the interests of the country to get it out of the way but if they don’t pass it in an acceptable form, then the Government will not alter its position and it will contemplate sending it back in three months’ time. But if there were to be a double dissolution I don’t believe it would be a race election. I believe other issues would dominate that campaign, particularly the state of economy which according to the latest ACCI survey is absolutely booming. I think those issues would shoulder out the native title debate. It would be important that it would not be the dominant issue.
O’BRIEN:
John Howard, thanks for talking with us.
[ENDS]