E&OE.........................................................................................................................
O’BRIEN:
John Howard, Paul Keating has labelled your proposed native title laws as savage, mean and racist. You in return say he is a hypocrite, why?
PRIME MINISTER:
Because in 1993 he declared to everybody that the grant of a pastoral lease extinguished native title and our legislation falls short of that. In fact our legislation is a non-discriminatory response to the Wik decision which delivers certainty to pastoralists but does not provide blanket extinguishment of native title. And worst still, his successor as Leader of the Labor Party, through his admission today has known for 18 months that the Labor Party’s native title response in 1993 was failed yet he has allowed members of his own party to brand me as racist. And he has allowed an argument to develop that our fair, balanced response is racist.
O’BRIEN:
Mr Keating argues that everything his government did on native title at the time, including the passing of the Native Title Act was done in the knowledge and with the acknowledgment that the High Court was still to rule on the rights of Aborigines in the Wik case.
PRIME MINISTER:
Well that is wrong. Because the recital of the Native Title Act was unequivocal and so were the declarations that he made in the Parliament, so were the statements he made to State Premiers. And his own former colleague, Graham Richardson has exposed that in The Bulletin today. Graham Richardson made it perfectly clear today that they all operated on a particular basis and that really validates our claims that Mr Keating told everybody who bothered to ask, and some who didn’t in 1993, that the grant of a pastoral lease extinguished native title.
O’BRIEN:
The question today is, is it legitimate for your Government to extinguish a Common Law right, in this case for Aborigines, ratified by the High Court?
PRIME MINISTER:
I don’t accept that that is what our legislation does. What our legislation does is to confirm the right of indigenous people to make native title claims over something like 79 per cent of the land mass of Australia. The only areas where they are absolutely prohibited are freehold title and grants of exclusive tenure. What people will not accept deliberately is that our legislation is an attempt to work within the Common Law as laid down in the Wik decision. The whole argument that I had with some members of my own party was about that very thing. I would not agree to blanket extinguishment. And that is why some member of my own side were critical of the Ten-Point Plan. And I think the Australian public, particularly in the light of these revelations from Graham Richardson, will see that our plan is a fair balance. I don’t want to discriminate against anybody in Australia, but we have got to clean up the mess of native title left to us by our predecessors.
O’BRIEN:
You say that your laws will not enforce blanket extinguishment of native title and yet your Deputy Prime Minister, Tim Fischer, is going from one end of the country to the other telling people that it will provide bucket loads of extinguishment.
PRIME MINISTER:
Well everybody had their own way of describing it, but can I just make the point to you again, Kerry that our legislation does not provide for blanket extinguishment of native title on pastoral leases. What it does do is to confirm the decision of the High Court in the Wik decision that the grant of exclusive possession extinguishes native title. And we set out in a schedule to the legislation those titles all around Australia which we have been advised by lawyers confer exclusive possession and the rest of Australia can be the subject of native title claims. Now those claims have got to be proved, and many of them, of course, are completely facetious and will fail. But the principle is nonetheless there. And what I have tried to do, with considerable difficulty on occasions on my own side, and in the face of fierce opposition from some of my critics on my own side, I have tried to strike a fair balance. And it is a balance that gives certainty to pastoralists but does not embrace the blanket extinguishment that Paul Keating told the world was constituted by the grant of a pastoral lease in 1993.
O’BRIEN:
Prior to the Wik case.
PRIME MINISTER:
Yes, but that doesn’t alter the fact, Kerry, that what we are doing is not discriminatory.
O’BRIEN:
And what is the difference between, you say it is a choice of words, but what is the real difference between the intent of Tim Fischer’s word when he says it will deliver bucket loads of extinguishment and you saying that it won’t embrace blanket extinguishment?
PRIME MINISTER:
Well it is what is in the legislation. If a piece of legislation allows a native title claim to made on 79 per cent of the land mass of Australia you can’t, on any reasonable basis, call that discriminatory. If a piece of legislation attempts faithfully to implement the Common Law principals laid down in the Wik decision you can’t call that discriminatory either.
O’BRIEN:
Well let me put it to you another way. What do you interpret Tim Fischer’s comments when he says bucket loads of extinguishment, what do you think he means?
PRIME MINISTER:
Everybody has their own way of describing it, but I can only repeat the facts. And the facts are that the Wik decision said that the Common Law of Australia provided a certain way and we have endeavoured to ensure that our legislation is consistent with the Common Law as laid down in that position.
O’BRIEN:
Kim Beazley’s point today is that people want certainty after the Wik judgement and that your Bill won’t provide certainty because in essence it is discriminatory and subject to challenge in the High Court.
PRIME MINISTER:
I would like to know what the serious alternative is. You can’t leave the law as it is. Kim Beazley has admitted it is a mess, Graham Richardson has said it is a mess. I am not arguing for, and Beazley is surely not arguing for, blanket extinguishment and what I have presented is a fair, middle course. And my fair, middle course gives certainty to pastoralists. It confirms their rights to carry on their pastoral activities and it guarantees compensation if there is any acquisition of property, and I remind you that under the existing Native Title Act the States have got the right to acquire property, but we insist that it must be on just terms. Now you can’t have a fairer response. You guarantee pastoralists certainty, you don’t have blanket extinguishment and you provide for compensation for indigenous people if there is acquisition.
O’BRIEN:
You keep saying certainty for pastoralists, and you might say that your legal advice says that you won’t lose in the High Court, but there is plenty of other credible legal advice outside of what the Opposition is saying, that you will strike problems with the High Court, that the High Court will find your Bill invalid. And that is where the uncertainty lies.
PRIME MINISTER:
Well, Kerry, we have been advised by the Solicitor-General and we have been advised by others that our Bill is perfectly constitutional. Now we can’t do more than that. Governments are always passing legislation based on constitutional advice. And our constitutional advice from the Solicitor-General, appointed by the Keating Government and from other sources, is to the effect that our legislation is constitutional. Now we have followed the normal procedures, we have done that in good faith and that is why I hope the Senate will pass this legislation. But above all I hope that people stop using this terrible rhetoric about it being a piece of racist legislation. I would have thought that Graham Richardson’s exposure of Kim Beazley today, in his own declaration that even if you disagree with what John Howard is doing you can’t call this legislation racist. I hope that injunction is heeded by all members of the Labor Party and by some of the more careless spokesmen for the indigenous community. There have been to many descriptions of racism carelessly flung around in this debate and I think the Australian public is heartily sick of it.
O’BRIEN:
You say that you are advised by the Solicitor-General that it is constitutional, you are well aware of the advice also from the Head of the Law Reform Commission, who was the Head of the Attorney-General’s Department, that in fact it almost certainly will be found to be invalid and discriminatory by the High Court?
PRIME MINISTER:
Well I don’t think his advice, that is of Rose, was quite in those categorical terms. But, Kerry, there is nothing unusual about people having different legal opinions on contentious issues. I mean we have had some celebrated court cases where the court of first instance will find in one direction, the appeal court in another and then the High Court will revert to the court of first instance.
I mean all you can do is operate in good faith in accordance with the normal procedures and that is what we have done. We haven’t tried to pull any swifties. We haven’t got any sleeve options regarding legal advice. We went to the Solicitor-General. We got other advice. We believe in good faith the legislation is constitutional. Now no government, no prime minister, can do more than that.
O’BRIEN:
And what will you do if the High Court does find your laws invalid?
PRIME MINISTER:
Well that is entirely hypothetical.
O’BRIEN:
But possible
PRIME MINISTER:
My advice is that it won’t and I’m an optimist.
O’BRIEN:
The Aboriginal Working Group on Native Title says that the Wik decision did provide pastoralists with certainty, that it found that native title rights and pastoral interests could co-exist, but where there was conflict of interest, the pastoralists rights prevail. They say how much more certainty than that do you want?
PRIME MINISTER:
Well there were many things left unexplained in the Wik decision: the very dimension of native title, what makes up native title, what bundle of rights constitutes native title. There were many things left unresolved and what we have endeavoured to do with our Bill is to try and resolve some of the things left unresolved to provide certainty but to stop short and very decidedly short of any kind of blanket extinguishment and I just go back to that fundamental point. That is you leave a situation where 79 percent would still be subject to native title claim you can hardly be accused of acting in a racist or a discriminatory fashion.
O’BRIEN:
You made much of that map that you showed on this programme in September. You made quite an impact. The 78 or 79 percent that you talk about. The Aborigines negotiating groups say in response to that again that in reality much of that land is not subject to, and will not be subject to, native title - a great deal of it.
PRIME MINISTER:
Well I don’t think anybody can be certain as to what areas of Australia would be subject to native title claims. The point I make tonight, Kerry, is that, as we propose in our legislation, it will be possible for native title claims to be made over 79 percent of the land mass of Australia. Now, in the fullness of time and the operation of the law will determine whether any of those claims either materialise or are successful, but it doesn’t alter the unassailable fact that people are free, subject to the law, to make those claims. And that totally refutes the proposition that the legislation is discriminatory.
O’BRIEN:
Let me read to you what the Indigenous Working Group says: "In reality, the pastoral land potentially subject to claim is around 40 percent of the Australian land mass. In these areas a substantial proportion of these claims actually exclude pastoral leases and are focused primarily on pockets of vacant Crown land in between the pastoral leases." My question is, how responsible is it to show a map like that which shows the most dramatic picture possible when we are dealing with such an emotive issue, such a sensitive issue?
PRIME MINISTER:
Well, it’s certainly a lot more responsible than some of the smearing rhetoric that has been thrown around about me and about my colleagues and whose credibility has been totally blasted away today about what Graham Richardson has said and Kim Beazley has admitted. I think it is entirely proper in a vigorous debate to point out the extent of the area of Australia that could, under the law, be subject to native title claims. Now the question of whether the claims are made will only be dealt with in the fullness of time and in accordance with the law and sometimes one has to state it in those terms to get the point across, the reality across. This is not unfair legislation. This is fair, balanced, decent legislation which I have fought very hard to achieve against considerable opposition.
O’BRIEN:
How do you read the concern, the depth of concern being expressed by the most moderate of Aboriginal leaders about the actions of your Government today?
PRIME MINISTER:
Well I think there has been a deliberate attempt to knock my Government off course with this legislation by turning up the heat and claiming that I’m trying to run a racist proposition. That attempt has been seriously derailed today by Graham Richardson and Kim Beazley and I don’t intend to back off my Wik legislation. Let me say to all members of the indigenous community of Australia, my Government remains deeply committed to the process of reconciliation. I do not want our differences over the Wik legislation to be interpreted as opposition by either myself personally or any of my colleagues towards reconciliation.
Last night you had a wonderful success story on your programme about the activities of the Australian Army in an Aboriginal settlement, a proposition of ours that was condemned as a cynical exercise a year ago by some Aboriginal leaders, now seen as a decent practical exercise in reconciliation. Now I believe passionately in that kind of reconciliation. I believe we must lift the standards of health and education and employment of our indigenous people. But I also believe that the farmers of Australia are entitled to greater certainty than was given to them by the High Court in the Wik decision and that is why I will pursue our legislation.
O’BRIEN:
But the loss of Pat Dodson as the Chair of the Reconciliation Council relates directly to your native title legislation. There is also the fact that earlier this year you also upset a number of Aboriginal leaders by refusing to apologise for the Stolen Generation and now we see in the last few days Gatjil Djerkurra your own appointee as the Chair of ATSIC and again the most moderate of moderates being heard to contemplate seeking international help on this issue. Talking about Olympic boycotts. Does that set up a question mark in your mind as to why somebody like him would be provoked into that kind of comment?
PRIME MINISTER:
Well, Kerry, I think no matter who it’s come from or may have come from, the call for an Olympic boycott has been almost universally condemned and it is quite wrong of anybody to try and put pressure on a person like Cathy Freeman to pull out of the Olympic Games. I notice even an international sporting figure such as Carl Lewis today has urged Cathy to compete and so do all Australians.
O’BRIEN:
And I don’t think there will be any doubt that she will compete and I don’t think that Gatjil Djerkurra wouldn’t be asking for that either.
PRIME MINISTER:
No well I thought your question implied that and I didn’t think Gatjil had and I thought you were perhaps being a little unfair to Gatjil.
O’BRIEN:
No. No. He raised...no I said Olympic boycott. I didn’t mention Cathy Freeman.
PRIME MINISTER:
No, no, well that’s everybody and that’s even worse.
O’BRIEN:
Well, but what I’m saying to you is what does it say to you that this man who is known as a very moderate, conservative individual, responsible head of an Aboriginal community, appointed to the head of ATSIC by your Government, would be pushed or moved to that point? Doesn’t that suggest that he feels a level of desperation and emotion about this?
PRIME MINISTER:
Kerry, I don’t believe that anybody seriously entertains either the desirability or the prospect of an Olympic boycott and all one can ever do in these situations is to look at the merits of what is being proposed. Extreme language is often used and often colours a debate. Now I’ve been careful in the language that I’ve used and I call on Mr Beazley to curb the tongues of people like Darryl Melham, who have likened our activities to the Ku Klux Klan. I call on him to curb the tongues of all of those in his own Party who have recklessly embraced this racist smear against me and against my Party. This is not racist legislation. On its merits, it stands as balanced, fair, non-discriminatory legislation and that it is why it deserves the support of the Senate.
O’BRIEN:
Aborigines say that they have no culture without the land, that they need access to the land to be able to teach that culture to their children and to keep that culture alive. That it’s about the spiritual connections to the land. How deeply do you feel and understand that concept?
PRIME MINISTER:
I understand that. I respect it and so does this legislation. I mean if I didn’t respect that, if I didn’t respect the finding of the existence of native title in the Mabo decision, I would have behaved in a completely different fashion. You can trawl through all of the remarks that I have made in public life and you will find no enunciation of the fundamental principles of the Mabo decision. I supported the spirit of that decision which overturned the doctrine of Terra Nullius. That’s an entirely different proposition and that is fully respected in this legislation. Let me go back to the... I mean what this debate is all about is the motive behind our legislation and the motive behind that is to strike a fair balance in a difficult situation called a mess by Kim Beazley and Graham Richardson and to strike a decent and fair balance between different sections of the Australian community. I believe we have done that. I believe this disgraceful attempt to smear it as a racist, race-based emotive exercise has been exposed very dramatically today.
O’BRIEN:
You may feel you have done that but you must also acknowledge that a quite respectable body of legal opinion in this country argues otherwise.
PRIME MINISTER:
Kerry, I can only say again, that as any prime minister does with any serious piece of legislation, he or she consults the Solicitor-General, gets advice and acts in good faith on that advice. Now, I’ve done that as all my predecessors have done in relation to contentious legislation. We live under the rule of law. We seek advice. We act in good faith and that is what I’ve done.
O’BRIEN:
With your comments in the last few days again you have heightened an expectation I suppose that there may well be a double dissolution election as a result of your legislation being rejected twice by the Senate. If that does happen, then one assumes there would be an election around May of next year. Now that the same time, you are also embarked on a course of tax reform and you have said that you will get a blueprint on tax reform in place before the next election. If we face a double dissolution election, will you have time to get your tax reform blueprint in place beforehand.
PRIME MINISTER:
Kerry, I’m not going to speculate about the timing of the next election. I deal in things in the order in which they occur. The next big event is for the Senate to decide on our legislation. I would have thought that after today there will be overwhelming community pressure for the Senate to pass this legislation in essentially the form it has been presented. That is what I’m focusing on and that is what I’ll try and do.
O’BRIEN:
But you do acknowledge that, if there were to be a double dissolution election in that kind of time frame, it would not give you much time at all within which to prepare it, I assume, a quite complex blueprint of major tax reform.
PRIME MINISTER:
Kerry, I’m simply not going to in any way speculate about the timing of the next election. I’m not going to answer hypothetical questions, based on it, but I will repeat what I’ve had said before and that is that before the next election the Australian public will have a very clear idea of our vision and our plan for a reformed, modern taxation system for the 21st Century.
O’BRIEN:
Given the, just coming back to native title, given the heat and the emotion that has been stirred up at Aboriginal communities on this, do you see value in you as Prime Minister going to a significant number of Aboriginal communities to talk to them and explain your position to them as much as you have to pass the pastoralists?
PRIME MINISTER:
Kerry, I had one specific meeting in a pastoral area and that was at Longreach where some of the people objecting certainly were wanting a different Bill than the one I’ve produced, and I think that ought to be acknowledged. Of course the answer to your question is yes in the right circumstances and at the right time, of course. I want to visit all parts of the Australian community. I’ve had a lot of discussions with leaders of the Aboriginal community on this legislation, a lot. Now they may disagree with it. I accept that they do. But I ask them to separate it out from the reconciliation process. There is no reason why people who disagreed with us on the Wik legislation shouldn’t work with us to achieve reconciliation.
O’BRIEN:
John Howard, thanks very much for talking to us.
[Ends]