Legislative Council
STATUTES AMENDMENT (MINING ADMINISTRATION) BILL
(edited)
The Hon. SANDRA KANCK: I move:
Page 2, lines 31 to 36, page 3, lines 1 to 20—Leave out subsections (4), (5), (6) and (7). I indicated in my second reading speech that I would be opposing this part of the new section, and in the Attorney's summing up yesterday he asked whether I would also be opposing clauses 10 and 11, and I nodded to him that that would be the case. I will divide on this amendment because I feel so strongly about it. I heard what the Attorney-General had to say in relation to this secrecy provision. It may sound okay on the surface but I think that it allows the opportunity for underhand deals to be done. If there is any hint that there will not be openness, that opportunity is there. I indicate that I will divide on this amendment but not on the other two. I will use this amendment as the test case.The Hon. K.T. GRIFFIN: The Government strenuously opposes the amendment. I have already outlined the reasons for the Government's Opposition, but if I do it again that might help the Committee. The amendment proposed by the Hon. Sandra Kanck will completely remove the confidential provisions that all parties consulted had agreed to. In particular, it should be noted that the Aboriginal Legal Rights Movement had no objections. It recognises that there may be occasions where native title claimants may wish to keep confidential information on Aboriginal sites and heritage issues as well as details of their financial arrangements. These details should not be of concern to third parties on the understanding that they can only be kept confidential in the first place if all parties to the arrangements are in agreement.
508 I think we ought to respect the confidentiality arrangements which they make, particularly if they agree to that course of conduct.
The Hon. P. HOLLOWAY: I indicate that the Opposition, as was indicated in the second reading speech, will support the Government on this matter. It has been the subject of some considerable discussion whether or not this particular clause relating to confidentiality should be agreed to. Certainly, the Opposition has been very critical of the use by this Government of confidentiality provisions when it relates to contracts made between the Government and other parties, but it needs to be pointed out in this case that we are not talking about contracts involving public money. These are essentially agreements between non-government parties.
As I understand the legislation, for confidentiality provisions to apply, it must be agreed by all parties that the agreements are to be kept confidential. Also, I understand that some of the basic information in relation to these agreements is made available, anyway, under the register. For those reasons, we do not oppose this clause— The Hon. K.T. Griffin: But you do oppose the amendment? The Hon. P. HOLLOWAY: Yes, we will be opposing the amendment. The Hon. A.J. Redford interjecting: The Hon. P. HOLLOWAY: It is not so much an amendment. The Hon. Sandra Kanck is opposing this clause with the aim of leaving it out. We support the original provision for the reasons that I have given. The only other point I wish to make is to repeat that the Opposition has received no indication from any of the stakeholders involved that they disagree with these measures.The Hon. A.J. REDFORD: I wonder whom the Hon. Sandra Kanck has consulted in relation to this amendment and what level of support she has had for this proposal not to enable these agreements to be kept confidential.
The Hon. SANDRA KANCK: I suspect that this is a sort of leading question. Certainly, I recognise what the Hon. Trevor Griffin has said, namely, that the ALRM does not oppose it, but simply because that is so does not mean that there are not Aboriginal groups who oppose it. I did speak with people in the Conservation Council and a representative of one Aboriginal group who was quite scathing of the ALRM's position on this and felt quite let down.I actually think one needs to see what happens when agreements are made in secret, and what has happened in the last couple of years with the Jabiluka deposit is an indication of that, where things were not open and the Aboriginal people themselves found that one part of their tribal grouping had negotiated with the mining companies. Because it was not an open process, those people did not know what was happening and ultimately were disfranchised. I believe it is really important that this stays as open as it can possibly be.
The Hon. T.G. ROBERTS: I think the honourable member is indicating more a process than a final position. Negotiations, if they are open, can be inclusive, and can allow Aboriginal people to be involved and have an outcome negotiated on their behalf. The legislation actually indicates that the confidentiality clause remains in place in relation to outcomes. I am not sure that the legislation will achieve what it sets out to do. I am not quite sure whether a penalty is included for people who take away and make public the results of the negotiations, but I am sure that those involved in the negotiations who have a vested interest in the outcome will try to make sure—
The Hon. A.J. Redford: There is a penalty: it is a $10 000 fine. The Hon. T.G. ROBERTS: It is very difficult to track down. How many prosecutions are there for breaches of any confidentiality clause? For instance, there are penalties for Cabinet leaks, and I am saying both sides. It does not matter how secure negotiations are and what legislation is written in relation to the security of information around confidentiality: if there is a reason and purpose for that confidentiality to be broken, and an advancement of an individual's or a group's position can be made by breaching that agreement, the agreement will be breached. The Hon. A.J. Redford: Such as a medical report in a criminal case. The Hon. T.G. ROBERTS: It could be anything. The honourable member interjects and puts forward a case with which he is familiar! We are supporting the Government's position on it, but I would note that there will be cases where confidentiality will not be maintained and it will be difficult for the legislation to be policed.The Hon. NICK XENOPHON: I indicate that I support the Democrats' amendment, albeit with some reservations. It seems to me that I could see greater problems if the register is not open. I am concerned about the penalty provisions and, given the nature of the mining industry and the public interest factors that ought to be considered, I support with some reservations the Democrats' amendments.
The Hon. T.G. CAMERON: I support the amendment moved by the Hon. Sandra Kanck on behalf of the Australian Democrats. I think we need to have openness in relation to matters like this. It is all very well for Governments, whether Labor or Liberal, and companies to argue the often quoted phrase, `It is commercially confidential' or `It is a commercially confidential matter that would be detrimental to the organisation/Government, if details of the contract were open.'
I think we had some experience of the secrecy that surrounds contracts between Governments and private companies when we saw the length to which the Government went to ensure that a full copy of the water contract was not made available to members of this Chamber or members of Parliament in particular.510 AYES (5)
Cameron, T. G. Elliott, M. J.
Gilfillan, I. Kanck, S. M. (teller)
Xenophon, N.
NOES (14)
Crothers, T. Davis, L. H.
Dawkins, J. S. L. Griffin, K. T. (teller)
Holloway, P. Lawson, R. D.
Lucas, R. I. Pickles, C. A.
Redford, A. J. Roberts, T. G.
Schaefer, C. V. Stefani, J. F.
Weatherill, G. Zollo, C.
Majority of 9 for the Noes. Amendment thus negatived; clause passed. Remaining clauses (9 to 11) and title passed. Bill read a third time and passed.See Sandra Kanck's Second reading speech on this topic: 11 February 1999