CHAPTER 5
5.1 Minority Recommendation 1 is that the following be inserted in the
Native Title Amendment Bill 1996:
(1) Without limiting the general operation of the Racial Discrimination
Act 1975 in relation to the provisions of the Native Title Act
1993, the provisions of the Racial Discrimination Act 1975 are
intended to prevail over the provisions of this Act.
(2) The provisions of this Act do not authorise conduct that is inconsistent
with the provisions of the Racial Discrimination Act 1975.
5.2 The apparent intention of this provision is to reverse the usual
rule that where there is a conflict between general and specific provisions,
the specific provisions prevail. [1]
By contrast, s.7 of the Native Title Act [2]
(which was inserted with the agreement of the Keating Government) [3]
does yield to other provisions of the Native Title Act in the event of
conflict. [4] The minority recommendation therefore seeks
to hold the Howard Government to a more strict standard than that to which
the Keating Government's legislation was held in relation to the RDA.
5.3 While the amendments to the Native Title Act should be consistent
with the principles of non-discrimination in the RDA, it is difficult
to see any need for the provision given advice by the Attorney-General's
Department that the amendments are consistent with the RDA. [5]
Even if there were a discrepancy between the amendment bill and the RDA,
there are significant concerns about the means chosen to resolve it in
the minority report. There is an important principle relating to the proper
role of parliament at stake. The proposed clause sounds high-minded, but
its very generality means that its operation would be unpredictable in
the event of a conflict between the amendments and the RDA. In particular,
doubt could arise over those sections only partly amended by the amendment
bill. [6] This makes for bad legislation.
Would it invalidate specific provisions in the Native Title Amendment
Bill 1996? Or would it merely modify their operation in particular factual
situations? To what extent would the Registrar be required to consider
difficult issues of statutory interpretation in performing her (essentially
administrative) duties?
5.4 In proposing this kind of amendment, there is an implied admission
in the minority report that it is uncertain how the RDA clause would apply
in particular situations. If the minority members were certain, then in
the interests of responsible statute-making they would have dealt with
the issue by suggesting specific, and more predictable, amendments to
achieve the desired end.
5.5 The RDA clause would result in the courts having to piece together
a legislative jigsaw puzzle. While it is proper for the courts to play
a role in interpreting legislation, it is wrong for parliament to pass
legislation that is manifestly unpredictable in the hope that the courts
will make sense of it. This would abdicate responsibility to unelected
judges. It would also prove to be a recipe for litigation and confirm
the impression that lawyers are the prime beneficiaries of the Native
Title Act. When asked about this matter on 27 November 1996 the Deputy
General Counsel of the Attorney-General's Department advised the Committee:
The Racial Discrimination Act states what parliament's intention
is with regard to racial discrimination matters in Australia. It is
a legislative act which is spelling out parliament's intention. The
Native Title Act spells out parliament's intention with regard to native
title. An amendment of this kind is an acknowledgment, in my view, that
parliament does not know what the Racial Discrimination Act or the Native
Title Act means. It is saying that the Native Title Act might be inconsistent
with the Racial Discrimination Act or it might not be inconsistent with
the Racial Discrimination Act. ... In my submission, it is for parliament
to say. If parliament thinks that provisions in the amendment bill are
inconsistent with the Racial Discrimination Act, it should not make
them. If it thinks they are consistent, it should make them. [7]
The Committee accepts this view and the parliament's obligation to legislate.
Subject to its sixth report, the Committee endorses the Native Title Amendment
Bill 1996 and the Exposure Draft amendments.
Senator Eric Abetz
Chair
Footnotes
[1] (Generalia specialibus non derogant:): Pearce
D.C. and Geddes R.S., Statutory Interpretation in Australia, (Third
Edition), p.83.
[2] Section 7(1) provides that nothing in the
Native Title Act affects the operation of the Racial Discrimination
Act 1975. Subsection (2) provides that this does not affect the validation
of past acts by or in accordance with the Native Title Act.
[3] Senate Hansard 17 December 1993, p.5029.
[4] Western Australia v. the Commonwealth
183 CLR 375 at 483-484.
[5] Evidence, pp.3206 to 3214 (18 October 1996).
[6] Evidence, p.3606.
[7] Evidence, p.3602.
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