PETROLEUM AND GEOTHERMAL ENERGY (TRANSITIONAL LICENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 September 2012.)

The Hon. S.G. WADE (18:09): I rise to support the Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill. At the outset, I express my acute disquiet at being advised yesterday morning that the government was demanding that this bill be jammed through both houses by tomorrow. My party had made decisions on the basis of the routine and orderly consideration of the bill in the normal course of events, and we were anticipating that the bill would be debated in this house in the sitting week commencing 16 October. The normal processes of consultation and due diligence and legislative review are not possible in this time frame. I am not confident that my party and I have identified and understood all the relevant issues. This council has been put in a very difficult position.

The foundational case for native title, in the common law of Australia, is the High Court decision of Mabo v Queensland (No. 2) in 1992. This bill is one in a long list of commonwealth, state and territory statutes enacted to manage the implementation of native title. A year after the High Court decision, the Native Title Act 1993 was enacted to legislatively recognise native title, to clarify the legal position of landholders, and to lay down the processes that must be followed for native title to be claimed, protected and recognised through the courts.

The Wik decision in relation to the impact of pastoral leases to native title led to amendments to the Native Title Act through the Native Title Amendment Act in 1998. The act streamlined the claim system and provided security of tenure to holders of pastoral leases and other land titles. In other words, by the turn of the century there had been two major legislative reviews introduced in the short eight years since the High Court's recognition of native title.

For such a young area of Australian common law, the legislative activity and the resultant complexity was unprecedented. By 2000, the Native Title Act 1993 was published in two volumes and already contained 496 pages. The law was complex and its interaction with other state and commonwealth acts was evolving. In this legislative environment the Parliament of South Australia enacted the Petroleum and Geothermal Energy Act 2000. The act has fallen foul of the complexity of the law. According to the title of the act it is to:

...regulate exploration for, and the recovery or commercial utilisation of, petroleum and certain other resources; and for other purposes.

Fundamentally, the bill did not create new licences: it reframed them. Before the 2000 bill, under earlier petroleum legislation, petroleum production licences were granted for 21 years, or sometimes 31 years, with the unlimited right to renew those licences for 21 years at a time. After 2000 the new act provided for petroleum production licences to be granted for an unlimited term subject to two-yearly review.

The nature of the licence has not changed. There were still ongoing petroleum production licences, but whereas in the past the licence had been for a defined term with unlimited renewal, now the licence is for an undefined term with a prospect of termination. The basic approach of the Native Title Act is that if an act is authorised by earlier legislation or legal agreement it can proceed without going through the so-called right to negotiate process. The right to negotiate does not and was not intended to apply to renewal or re-grant of earlier licences such as those under the Petroleum and Geothermal Energy Act 2000. However, by providing the petroleum licences were to be granted for an unlimited term, this parliament inadvertently invoked the right to negotiate provisions of the Native Title Act.

The consequences are twofold. First, the validity of licences is put under a cloud. There are concerns that if the proposed amendments are not made many petroleum production licences could be found to be flawed on the basis of the unintended legal legislative effect. Second, the right to negotiate would arise every time transitional licences were renewed, consolidated or divided, which would create uncertainty. The risk was not immediately apparent for 10 years. I understand 50 licences were renewed and no right to negotiate was given and no right to negotiate was asserted. All parties had assumed that licences created under the legislation could be renewed without the right to negotiate applying and that the specific part of the Native Title Act that allows for renewals applied. More recently, concern has arisen that the right to negotiate had been invoked and was not being honoured. I am advised that the government was first made aware of the possible unintended consequences two to three years ago. In relation to the Santos licences specifically, I understand the issue was raised in July 2011.

There was a general lack of response by the government, and in March 2012 the YY people instituted proceedings in the federal court. The YY people are seeking a declaration that when Santos' Cooper Basin production licences were consolidated in 2009 under section 82 of the Petroleum and Geothermal Energy Act 2000 the YY people should have been afforded the right to negotiate pursuant to section 26 of the Native Title Act.

The Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill, the bill that is being discussed tonight, introduces amendments to the Petroleum and Geothermal Energy Act to address two issues. First, to ensure the validity of certain past grants consolidations of renewals of petroleum production licences and, secondly, to ensure that existing transitional licences will be renewed, consolidated or divided consistently with subdivision I of the Native Title Act and therefore did not attract the right to negotiate. The bill is not seeking to avoid the operation of the Native Title Act: it seeks to clarify which part of the Native Title Act will apply to the licenses in question.

I stress that this problem has arisen completely independently of Santos. Santos did not create the problem: the law and this parliament did. Santos did not choose the remedy: this government did. Even if Santos did not need this clarification, other licence holders would need it. There are up to 200 licenses which, I understand, will need to be renewed in the new future, and the amendment bill will stop the right to negotiate from applying to these renewals.

I will be very disappointed if the mismanagement of this issue by the government negatively impacts on Santos's ongoing relationship with Aboriginal people and their involvement in this state. The government has clearly failed to effectively engage the Aboriginal community on this bill. On 7 September Khatija Thomas, the Commissioner for Aboriginal Engagement, released a press release headed 'Minister introduces bill to remove native title rights from Aboriginal people.' The release stated:

This bill flies in the face of government rhetoric supporting the engagement of all South Australians including traditional owners,' she said.

First, the process adopted by the Government to introduce the Bill without notice to Aboriginal people is contrary to international law requiring that only free, prior and informed consent be given by Aboriginal people to decisions such as the one to remove a native title right. Second, the Bill undermines our democratic processes.

A range of other Aboriginal leaders have expressed concern, particularly at the lack of consultation. I think the government's case is a credible one, but its failure to consult with the Aboriginal community is highly disrespectful. Ironically, a news report about Aboriginal outrage was published in The Transcontinental newspaper on 12 September 2012. It was placed immediately above a state government advertisement for the consultation on Indigenous recognition in the state constitution. The heading was 'Time for respect'; indeed, it is.

The arrogance of this government and the disregard for Aboriginal people was highlighted by the vicious attack in the other place by the Minister for Mineral Resources on the member for Stuart. The member is an excellent member who strongly advocates for his constituents, many of whom are Indigenous South Australians.

The member for Stuart made clear that he supports the bill. He said that the bill was 'put forward for the right reasons; that is, to try to close an unintended loophole and get things on track to where we want them to be'. However, he rightly conveyed the concerns of Aboriginal leaders, quoting comments in The Transcontinental newspaper that refer to this bill as 'administrative racism'. The member specifically said that:

The quotes are very important. It does not make them right; that is their opinion. It does not make them right, but it does mean that it is very important for us to pursue a deeper understanding of their views, of their positions, and to try to find out exactly why they hold those views and why they chose to make those very public comments.

I commend the member for his ongoing commitment to engaging the Aboriginal community. On the other hand, the minister personalised the quote and launched a personal attack on the member, calling him a 'political coward'. Personally, I think the response highlighted the sensitivity of a minister who has badly mishandled a sensitive issue.

One of the key issues this bill raises is the issue of retrospectivity. This parliament is not prevented from enacting laws with retrospective effect; however, this parliament should maintain strong respect for the rule of law and should be reluctant to enact retrospective legislation. The great legal commentator William Blackstone stated 'All laws should be made to commence in [the] future, and [the people should] be notified of their commencement.' However, Australian parliaments do regularly enact retrospective legislation, particularly to close loopholes and to fix unintended consequences.

This bill does indeed have retrospective effect, but the opposition will nonetheless support it. Key to our considerations is the fact that this bill neither confers additional rights on licensees nor detracts from the existing rights of the native title claimants or holders. In our understanding it will basically reconfirm what was thought to be the status quo. We accept that from time to time parliament has to correct legislation, but we do think that the government's response to this issue has been tardy. For what we understand is more than two years this government has had this issue before it. Frustrated by being ignored, Aboriginal people filed legal proceedings.

The bill may well be an appropriate clarification of the established parliamentary intent, but the way the government has handled this issue falls well short of what is expected of the government as a model citizen. Given the complexity of native title law and the legal issues of inconsistency of laws, this bill may also face challenge. On 4 September, the South Australian Native Title Services wrote an extensive letter to members of the lower house, and I will quote one section which addresses the issue of the robustness of the law, if you like. It stated:

We are of the opinion that the proposed bill raises some extremely technical legal issues that ought to be properly addressed to ensure the validity of any amendments to the state's petroleum legislation which will impact whether or not the rights under the Native Title Act will be afforded to traditional owners in South Australia.

The government assures the parliament that this bill does not conflict with the native title law, but what if they are wrong? Native title holders and claimants could challenge the legislation. The opposition expects that all stakeholders will be treated fairly as we continue to explore these issues.

In conclusion, I want to express my frustration at the way the government has managed the parliamentary progress of this bill. It was only on Monday night that the government informally advised the opposition that it wanted the legislation through by the end of this sitting week. The government is not on top of its brief. A range of issues that the Liberal party room had wanted explored had to be inadequately considered in one day.

I understand the crossbench MLCs were allowed even less time. At the insistence of the opposition, briefings were offered to the crossbench members of this house and parliamentary consideration has been delayed. Whether it was the Aboriginal people, the opposition or this council, the progress of this bill has yet again shown the arrogance of this government.

Debate adjourned on motion of Hon. J.M. Gazzola.