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NSW Liberals asked to consider end to new native title claims

Samantha HutchinsonNational reporter

NSW Liberals will be asked to vote on a divisive motion proposing to put an end to new native title claims within five years and to change the constitution at the party’s state council meeting in early August.

A year after the High Court ruled that anyone with Australian Indigenous heritage could not be deported, even if they didn’t have Australian citizenship or permanent residency, a group of NSW Liberals is calling for a referendum and constitutional change to supersede the decision.

Philip Ruddock: former prime minister Tony Abbott has been flagged as a potential candidate to replace him as NSW Liberal president. James Brickwood

In an agenda circulated ahead of a state council annual general meeting scheduled for August 6, the party’s Tweed River branch has filed a policy motion proposing to insert a new paragraph into the constitution that stops federal parliament from differentiating between Australian citizens or non-citizens on the basis of race, colour or ethnic origin.

The new paragraph also includes a subsection that calls for the Native Title Act to end within five years and for all land granted under the act so far to switch to a freehold title. Under the plan, a person living on the land will be given the title if they have lived on it continuously for three years, or five years not continuously.

“This arises out of the recent decision by the High Court in relation to the non-deportability of persons who can claim some vestige of Aboriginal ancestry, and who are not Australian citizens,” a briefing note accompanying the motion stated.

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“The proposal firstly removes the power of the parliament to legislate to differentiate between Australian citizens or non-citizens on the basis of race, colour or ethnic origin, and renders all such laws void.

“Finally, it amends Section 75 to clarify that the High Court have no jurisdiction in matters of race, colour or ethnic consideration, and voids the recent decision.”

Tweed River branch president Dudley Horscroft did not respond to requests for comment on the proposal, which is understood to have touched on the Native Title Act on the basis that it differentiates between Indigenous and non-Indigenous Australians. It also proposes to limit the size of the High Court bench to a chief justice and six members to avoid political “stacking”.

Several Liberals on the party’s state executive declined to comment publicly on the proposal. More quietly, they conceded that there was widespread support in the party to see the High Court decision, known as Love v Commonwealth overturned, even if the question of changes to the Native Title Act was an obscure and unpopular inclusion.

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One senior ranking member, who spoke on the condition of anonymity given party rules prevent them from discussing party matters, said the motion was unlikely to find support. “These aren’t serious propositions, it’s just absolute kookery. It won’t get anywhere,” the member said. “Besides, policy isn’t set by the organisation wing. It’s up to the MPs.”

Constitutional law expert George Williams said there was still a lot of scepticism throughout the community regarding the High Court decision on Love. Experts were waiting to see the outcome of another similar case, Montgomery v Minister for Immigration, that was currently before the High Court and had the potential to overturn the Love decision.

“We’re still waiting for a decision on Montgomery and that may well change the landscape regarding these issues again,” he said.

The policy is one of six that have been put up for debate at the party meeting, where members will also be asked to vote on a new executive body for the state division.

Former prime minister Tony Abbott has been flagged as a potential candidate to replace current state president Philip Ruddock, while long-serving party treasurer Michael Hughes, who is the brother of former Sydney Lord Mayor Lucy Turnbull, is also being eyed as a candidate.

Samantha Hutchinson is the AFR's National Reporter. Most recently, she was CBD columnist for The Sydney Morning Herald and The Age. Before that, she covered Victorian and NSW politics and business for The Australian, the AFR and BRW Magazine. Connect with Samantha on Twitter. Email Samantha at samantha.hutchinson@afr.com.au

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