PRIME MINISTIER
TRANSCRIPT OF THE PRIME MINISTER, THE HON P J KEATING, MP
PRESS CONFERENCE, PARLIAMENT HOUSE, 14 OCTOBER 1993
E& OE PROOF COPY
This morning I met with Aboriginal leaders and oul: lined the Government's
position on the core principles which are informing the Government's
proposed legislation on Mabo and its response to the High Court decision.
Over the past few days I have also discussed in general terms the
Governments approach with other major groups, including mining interests
and the States. And as a consequence I will be taking the proposals to
Cabinet on Monday. The central requirement in thi-i is as always, as it has
always been, and that is to find a balance, not a compromise of the spirit and
substance of the High Court judgement, which was lo recognise Native Title
and address the historic and continuing injustice experienced by Aboriginal
Australians, yet equally not a compromise which ignores contemporary
realities and the rights, interest and attachment to this land shared by all
Australians. We need legislation which strikes a balance, which takes account of
Australia's past and Australia's potential. When the Commonwealth
Government entered the Mabo discussions it was with a conviction that the
vast majority of Australians want a country which is both prosperous and just.
A year later I am all the more convinced and I am confident that we are about
to deliver legislation consistent with that ambition.
The principles I will be taking to the Cabinet on Monday will largely mirror the
detailed outline the Government made available on 2 September. Following
Cabinet the drafting of the Bill will then proceed. I am not in a position to
provide details now, but on the key issues let me say this, the processes of
the Bill will be consistent with the Racial Discrimination Act, existing grants of
interest will be validated and be secure, and the States and Territories will
continue to have the capacity to manage the land if they meet the standards
of the Commonwealth Bill. In other words, not only a just outcome for
Aboriginal interests, but one which recognises the role of the States in land
management and economic certainty. All major interest groups in the course
of these discussions made concessions, all have ultimately recognised the
great significance of the issues involved and that they demand a national
response. We are looking for solutions to the problems which have beset
them for 200 years, that is the Aboriginal people of Ihis country, and continue
to beset them. No legislation will alone be the solution, nor will any one
interest be completely happy. This of course, none of us believed was ever
possible. But the proposed legislation will lay the basis for solutions to be
developed and above all for creating the essential environment of
cooperation and good will on which progress towards all our goals will
ultimately depend.
I am happy to take questions from you.
J: Prime Minister, to what extent will Native Title be extinguished under
this new arrangement?
PM: No more or less extent than under the outline of the Bill.
J . of where all titles, except mining titles, would have extinguished
Native Title, will that situation prevail?
PM: You will have to wait until you see the outline again. But the thing is
no more or less than was outlined in the outline.
J: Prime Minister, how would you characterise your discussions with the
Aborigines today?
PM: Well I thought they were very fruitful, that is fruitful in terms of the
attitude of the Aboriginal representatives to the points, they had sent
me a collation of their points of agreement or disagreement on some of
the measures. I had been over those in the last couple of days and
was able to then handle those points off one at a time through a fairly
substantial checklist. Now, we are going back tomorrow to have a
further discussion, tomorrow morning some time I think, just to finalise
some of the points we really didn.' t have time to finalise today.
J the situation on Friday, and the situation now?
PMVI Well in terms of the substance I think the Racial Discrimination Act,
that is the Government's clarity about the fact that we can have, if you
like, even greater certainty of titles down the route we are heading,
while embracing the Racial Discrimination Act rather than overriding it,
that is the key point. The other points of substance, there are other
points of substance, one is that we are going to give them the right to
select jurisdictions between the Federal Court and the State Courts for
the hearing of Native Title, but not for the economic use of Native Title
land, that will remain exclusively with the States. And beyond that
there are changes, but the general thrust of the Bill is as of last week,
beyond those couple of core issues. Now, it depends what you call
core, obviously Aboriginal people might have a different view of some
of these points, but I think what I call core issues they are probably two
of the three or four main points, and there are other points. But there
is a very clear intention on the part of the Government in the Bill that
questions of economic land use and the efficiency of decision making
in this area be that which is left to the primacy of the States as they are
now, as it is now with land management. But Aboriginal people want
protections in respect of Native Title and the preservation of Native
Title and they don't want to see any opportunities for any State to
override Native Title and hence their con.: ern about the Racial
Discrimination Act, a concern which we have rret.
J: ( inaudible)
PM: No, only cooperating States. So, if a State doesn't establish the
mechanisms in this Bill and reflect that in the State, then the
designated tribunals to operate in a non-cooperating State will be
exclusively the Commonwealth Tribunals for the land, that is for Native
Title and land use. But if a State is a complying State and they fashion
their processes instrumentalities, their tribunals in accordance with the
law as drafted in this Bill, well then they will have the prerogative over
land management. Now, Western Australia, in my view, would be
advised to become a cooperating State, in which case their tribunals
will determine the economic use questions, ' 3ut only in terms of the
outline laid down in this Commonwealth Bill.
J: Mr Keating, explain how you have been able to reach the Aboriginal
negotiators, that you can deal with their concens about the RDA. How
have you been able to give greater certainty to title without overriding
the RDA?
PM: Well that's our advice, that the title is entirely certain under the
methodology which the Government has now proposed. What the
Racial Discrimination Act is, is an act against discrimination against
peoples of a class or race. But it has a provision in it where one can
discriminate in favour of peoples in a class or race so as to bring them
up to a level of equality of opportunity with the rest of the population or
community. These are called the special measure provisions. Now, I
told the Cabinet two weeks ago that we were in the course of
examining the special measure provisions and we have been, but of
course we are also in discussion at the same time with the States
trying to agree words on the Racial Discrimination Act. Now, we came
to the view late last week that the words the States wished us to agree
were too broad, that they not only would hava permitted the validation
of past grants but may also have opened up Ihe option of States being
able to do things prospectively without the sanction of the Racial
Discrimination Act. Now, as a consequence of that it was a matter of
us deciding how we could embrace the RDA, how we could embrace it,
and at the same time validate. No doubt you will have heard some
views about advices and things about the special measures and how
they might work. Well they are not the special measures and the
approach is not, as many people have spoken about it, it is the special
measure provisions of the Racial Discrimination Act but cast in a
different way, but in a way which would work.
J: ( inaudible)
PM: Look, Tom ( Burton) 1 don't want to go through the whole Bill. Look, I
don't want to obfuscate about it, but I am not here either to be
shadowing the Parliamentary draftsman. There has to be a group of
measures which are in fact special in their variety which undoubtedly
taken as a group advance the interest of persons within a class or
race.
J: Can you describe some of them?
PM. Well I can. They are basically the access to tribunals to hear and
award native title and by the facilitation of that process, the nonextinguishment
of native title, the extinguishment of native title which
would otherwise go on with land grants in the interim. In other words,
if these matters were heard in the courts then States would just go on
routinely issuing grants of interests over native title and extinguishing
hand over fist.
So the tribunals, the choice of jurisdictions between the Federal court
and the State Supreme court streams for the hearing of native title; the
iright to negotiate over land; that is a real right of negotiation followed
by a tribunal arbitral process which the Bill provides; the condition of
just terms for extinguishment of native title, that is a Commonwealth
Constitutional requirement which we will require the States to meet,
even though they are not required to meet it; protections beyond the
common law; the designation and funding of particular Aboriginal
organisations which have been the empowerment through which the
empowerment of Aboriginal people has generally come and a package
of measures which also deal with extending opportunity to those
Aboriginal people unable or unlikely to be advantaged by the Mabo
decision as a result of their dispossession. I am talking of such things
as a major land fund which would go on to a revolving fund which
would go on buying land for time in memoriam.
All of those things amount to and can I say many other elements to
that, but I mean this is in the broad, all of these things amount to a
series of special measures which are no doubt there for the
advancement of Aboriginal people.
J: When you talk about the rights to negotiate in relation to land under
those special measures, are you talking about negotiating over land on
which there are other grants already issued and are you going to allow
at the end of it that that's the retrospective procedure of fairness?
PM Look, I'm not into
J, You said on Friday..
PM: I know what I said to you and you asked ma a whole lot Of legal
questions at the last press conference.
J: But, you said on Friday that there would be..
PM: I am not going to oblige you now any more than I was then.
J: Prime Minister, does this mean that native Aile will coexist with all
other forms of title except freehold title that is, not be extinguished?
PM: You will have to wait until you see the Bill again, but the general thread
of the legislation as you saw it in the presentation, this is the point I
make to you and the presentation will still be there,
J: Prime Minister, do you stand by your statement of 17 June, where you
said " where freehold or leasehold has been dispensed in the past the
High Court has held that the native title has been extinguished". Do
you stand by that statement now?
PM. No, what do you mean stand by the statemente
J: Well, you made the statement.
PM: It is not a statement, it is a description of what : he High Court said.
J: Do you still agree with that description, you gave it?
PM: That is the extremity of the High Court's power. The High Court's
judgement said to take these principles to their logical end point, a
valid grant of these varieties extinguishes niative title. But we are
saying in our Bill, we give the Aboriginal people if you like, a legislative
advantage over that over the common law position by protecting
native title where it would otherwise be extinguished.
J1 So it is not going to be extinguished?
PM: Again, Peter ( Gill) please don't try on me tricky questions and tricky
points. Please. Do me at least the favour of understanding exactly..
me understanding exactly what you are about
J ( inaudible)
PM: Please don't be any certainty will come with the Bill not with your
column, dear fellow. Now, I know you are all entitled to have a big
head about your columns but, the fact is arid no doubt you are well
read. But, you may not be as well informed a~ s you are well read. Let
me just make this point to you. The High Court has said in its decision
that the valid issue of a grant or interest in land over freehold or
leasehold title can extinguish native title. The question is, should it
extinguish native title? Do you understanci? That is point I made.
Should it extinguish native title? And we are saying in some cases.
yes, and in some cases, no. And that is in the outline on 2
September.
J: ( inaudible) on Friday you talked about setting up a system of
tribunals around the country to determine these issues.
PM. Sorry Amanda ( Buckley) I wasn't quite with you.
J: I was just trying to work out what part these tribunals you mentioned
just before in your list of points, what part they play?
PMV: Let me explain to you. The Aboriginal community can trot along to the
High Court and mount land claims. Now, this will be a cumbersome,
time consuming process and while it is happening States will be
issuing land grants and extinguishing native title. So we want a
process which is fair, expeditious, and where there is certainty. So we
will set up a tribunal to hear and award native title. That will be a
branch of the courts of the States the Supreme Courts most likely or
the Federal Court of Australia. This will obviate the need to trot land
claims along to the High Court or to the Federal Court.
J: So you are calling these tribunals, but they are in fact of the court
system?
PMV. They are courts. But then parallel to that there is a tribunal. This was
all revealed in the outline of 2 September. What the tribunal says, the
tribunals are there for having had native title awarded and someone
wants an economic use over it, be it mining or pasture or tourism or
what have you, those tribunals then will sit in an arbitral judgement
upon them in the event that the proponent of the economic use doesn't
get to a point of agreement with the native title holder. So, there is a
process of notification, a process of consultation; 2 process of
negotiation:, and in the event that fails a process of arbitration. That
will happen in the economic use tribunals which will be set up only in
the states not in the Commonwealth jurisdiction. But there will be a
Commonwealth tribunal for Commonwealth lands that is the ACT and
Jervis Bay etc. But that same tribunal will apply in a State that doesn't
comply
J: Western Australia.
PM-Well, any State.
J-Prime Minister, what is going to be the cut off date for validating
leases?'
PMV: That is a matter for negotiation. It is more likely to be the end of the
year, end of this year.
I Prime Minister, are you telling us that you aire finally arrived at a
position that you believe settles, as far as possible, the concerns of the
Aborigines and your concerns the concerns of the Commonwealth
Government?
PM: I What I have done here today is to meet the Aboriginal people, to take
on board their comments on the draft and their points of objection to
see whether we could meet them and where wi) could meet them, say
so, where not say so, say why and indicate to them that we will be
presenting a Bill that has the following featues outlined to them
saying we hope you can support this Bill. We believe that this Bill
covers off the twin objectives of equity and justice for Aboriginal people
and provides a workable system of land management for the economy
and society. That draft outline which I will now take to Cabinet,
Cabinet will consider and when Cabinet has completed its
consideration, we'll then go to drafting. We will then introduce it.
J: Are you confident the Aborigines..
PM. I am confident that the Bill is everything I say it is and that it can pass
through both Houses of this Parliament.
J: Do you think you might introduce the Bill this waek in Parliament, next
week in Parliament?
PM: No, the Bill is weeks and weeks away. The Elill is weeks away, the
drafting of it it is a huge, mammoth drafting. Trhis is a major piece of
law, this is a major drafting task and because even if one changes
some of these obviously for some of the sections they will remain
largely unchanged and drafted as of now. But because many of things
are changing and will have then consequential impacts upon other
sections of the Bill it really requires each time you change this Bill in
anything other than a marginal way, it means that the whole outline is
essentially re-drafted.
J: Where are the States now in terms of the changes that you have made
to this legislation?
PM: I have spoken to State Premiers over the last couple of days and last
week about this. I think they want in the end to be able to sensibly
manage land. I think they want a national system and when we get
down to a finer drafting and they can see that draft I think they will be
convinced of the fact that this is a fair and de.-ent piece of law from
which ever direction it is viewed. This may not be the view of some
States who have now not been in the process of negotiations to date,
but that I hope, is where they will end up.
J* Prime Minister, in the broad can you just tell us what form of
entitlement will and wont be extinguished by nalive title?
PM: I'd just send you back to the outline Glenn ( Milne). I told you before
and you will have to wait to see in which way the outline has changed.
But by and large it will be pretty much as the outline.
J: So Prime Minister, this is the Government's final word on this package
that you taking to Cabinet on Monday, there is no hope for any of the
PM. Once it goes through the Cabinet it will be into drafting.
J: Would it be right to say that up until last week you thought you would
get the Federal Opposition on side eventually and then realising that
they weren't going to come on side you made these changes?
P M: I think Mr Reith's appointment was there to spike the passage of the
Bill. And he has made that pretty clear hasn't he.
J: So that is the reason for the change is it?
PM: No, the fact is we have the amenity within the Commonwealth
Parliament in terms of its Constitutional power to establish all of these
procedures. We want to do this co-operatively with the States, we
need them to make land management work. But we also need their
support for it I think. We would like their support for it. That didn't shift
the West Australian Premiers position I might add and it hasn't shifted
the Federal Opposition's position as far as I understand.
J. Would you recall Parliament if necessary to ensure the legislation is
passed?
PM: I don't think there is any need to..
J: In your advice, is there any question that the Commonwealth's
constitutional powers to deal with laws affecting race override the
States constitutional powers on land management?
PM. I I am not here to be giving you legal opinions, but we have a clear
power under the race power of 1967 and we have also powers in
relation to the external affairs and the convention. The Commonwealth
has got adequate constitutional power here.
J: You don't think this could be challenged?
PM. That's up to you you ring around the Premiers and their advisers and
see what they say,