Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Bills Digest 226 1997-98)

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Bills Digest No. 226 1997-98
Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Date Introduced: 2 April 1998

House: House of Representatives

Portfolio: Prime Minister

Commencement: On Proclamation, or otherwise within six months after Royal Assent

Purpose

To provide for procedures which may be used to protect indigenous areas and objects, and to provide for accreditation procedures for State and Territory heritage protection regimes.

Background

History

Despite the fact that there has been cross-party support for the principle of heritage protection legislation for Australia's indigenous heritage, the actual legislative implementation of this principle has not had enormous success.(1) The support for heritage protection is summarised in the vision statement of the Council for Aboriginal Reconciliation, a statutory body set up with unanimous cross-party support, which states its hope to build:

A united Australia which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity for all.(2)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the current Act') was introduced in 1984 as a temporary measure, however when the promised permanent measure did not eventuate the original sunset clause was removed two years later.

In the wake of the Mabo decision in 1992(3) the need for 'immediate Federal legislation ... to ensure total security for Aboriginal sacred sites and heritage' was once again raised.(4) As part of a negotiated settlement with indigenous negotiators the Commonwealth agreed to the planned Native Title Social Justice Package. The proposals developed by the Council for Aboriginal Reconciliation, the Aboriginal and Torres Strait Islander Commission ('ATSIC'), and the Aboriginal and Torres Strait Islander Social Justice Commissioner included suggestions for comprehensive heritage protection.(5)

In 1995 the Hon Elizabeth Evatt AC was commissioned by the then Minister for Aboriginal and Torres Strait Islander Affairs to review the Act. Her report, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ('the Evatt Review') was presented to the subsequent Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, in August of 1996.

In December the Minister announced an 'overhaul' of the Act, and ATSIC subsequently initiated consultations on the issue of heritage protection. The Evatt Review was also the subject of an inquiry by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund ('the Joint Committee') during mid-1997, whose Report, containing numerous recommendations regarding the drafting of Commonwealth heritage protection legislation, was tabled on the same day as the current Bill.(6) This Report was called The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and was the Joint Committee's Eleventh Report ('the 11^th Report'). The Joint Committee has subsequently issued a twelfth report into the Bill ('the 12^th Report').(7)

While there is broad-based support for the principle that the current Act is in need of reform,(8) there has been no consensus on the substance of this reform. The current Bill implements neither the bulk of the Evatt Review's recommendations, nor the recommendations of the 11^th Report.

Commonwealth Responsibility

The Commonwealth has constitutional powers and responsibilities for indigenous heritage protection under a number of provisions, most notably section 51(xxvi) of the Constitution (the race power).

The Evatt Review comments that despite a 'plethora' of Commonwealth legislation and administrative programmes there is no 'comprehensive or integrated Aboriginal cultural heritage protection regime.'(9) The Review concluded that:

[t]he Commonwealth has international, moral and legislative obligations to ensure that Aboriginal heritage in its broadest sense is nurtured and protected in a comprehensive and consistent way.(10)

Thus, while one of the stated policy goals of the Review was '[t]o retain the basic principles of the Act, as an Act of last resort'(11) it envisaged a broader role for the Commonwealth than simply having it function as a legislative mechanism of appeal. While the Joint Committee did not develop this theme of overall Commonwealth responsibility in either the 11^th or 12^th Report, it has given implicit endorsement to the principle in its recommendation that an independent administrative agency be created which would play a broader role than simply determining applications for protection, and in the recommendations regarding the Commonwealth's role in establishing Minimum Standards.(12)

The majority reports of the Joint Committee also recommended that a Commonwealth-enforced minimum standard for State or Territory accreditation should include 'a blanket protection approach.'(13) The 'blanket protection approach' involves presumptive protection of all significant sites, with the possibility for the protection to be removed, rather than requiring registration before any protection is given. By putting a basic level of responsibility on people who want to work or use the land to make enquiries regarding the existence of significant sites (other than the owners of the land in question), this approach gives greater protection to indigenous heritage than if the onus is on indigenous people to apply for protection. One of the difficulties with the current Commonwealth regime is that the current Act is only ever used when a potential conflict has already arisen. This difficulty remains pronounced in the provisions of this Bill because one of the requirements for a protection order is that a significant site be already under threat of desecration. The Joint Committee commented in its 12^th Report that:

Most States and Territories already provide blanket protection... Importantly, the Committee has received no evidence arguing against blanket, or presumptive, protection of indigenous heritage.(14)

The Commonwealth also has constitutional power to legislate with respect to indigenous heritage protection under the external affairs power (section 51(xxix) of the Constitution). The international obligations which the Commonwealth is subject to include provisions of:

the International Covenant on Civil and Political Rights(15) ('ICCPR'), which provides that persons belonging to religious or linguistic minorities:
... shall not be denied the right, in community with other members of their group, to enjoy their culture, to profess and practice their own religion, or to use his or her own language. (art 27)
the International Covenant on Economic, Social and Cultural Rights(16) ('ECOSOC') which provides that:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

ECOSOC also requires that all State parties to the Covenant 'promote the realisation of the right of self-determination ...'(17)

the International Convention on the Elimination of all Forms of Racial Discrimination(18)
the Declaration Of The Principles of International Cultural Co-operation, UNESCO, 1966, which includes the principles that:
Each culture has a dignity and a value which must be respected and preserved;
Every people has the right and the duty to develop its culture;
In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.(19)
the Convention For The Protection Of The World Cultural and Natural Heritage(20) which imposes a duty on Australia to ensure that its cultural and natural heritage of outstanding universal value is identified, protected, conserved, presented and transmitted to future generations, which in turn includes a need to integrate the protection of heritage into comprehensive planning programmes, set up services for protecting and conserving heritage, conduct research into the dangers that threaten heritage, do what is necessary to identify, protect and restore heritage and foster centres for training and research on heritage.(21)

Significant Divergences between the Bill and the Evatt Review's Recommendations

In a sense the Evatt Review is the defining document regarding the legal regimes for protection of indigenous heritage protection in Australia today. Its 370 page overview of the various heritage regimes in operation included 117 recommendations which were the product of national consultations and 69 written submissions. Despite some gentle and not-so-gentle criticisms,(22) the Review has found broad-based acceptance and formed the back-drop against which suggestions for reform have been evaluated. So, for instance, the reference to the Joint Committee asked for the inquiry to consider 'the urgent need for amendments...consistent with the report of the Review of [the] Act by Justice Elizabeth Evatt,'(23) while Senator Herron advised that the Government's proposals for reform were partly based on the recommendations in the Evatt Review.(24) The table prepared by ATSIC which compares the Government's proposals for amendments with the recommendations of the Review is informative (the Table forms an Appendix to the 11^th Report).(25) Furthermore the Review's recommendations have been widely endorsed by the submissions to the Joint Committee's various inquiries into the proposed Bill.(26)

The three primary areas where the Bill differs from the Review's recommendations are in its treatment of the concept of 'national interest,' its decision not to include any provisions which ensure the involvement of indigenous people in the decision-making processes of the scheme, and its treatment of the plans for State and Territory accreditation.

The National Interest

The Bill's treatment of applications from States and Territories with an accredited heritage regime differs to those without such a regime. If an application for protection is received from a State or Territory with an accredited heritage regime, then the only way the Commonwealth can intervene is if the Minister considers that intervention would be in the national interest. The second reading speech explained that the Government was including this provision because:

[t]he incentive for States and Territories to achieve accreditation will come from the Commonwealth absenting itself from involvement in State or Territory decision-making once a State or Territory is accredited.(27)

ATSIC commented that this provision 'fundamentally changes the nature of Commonwealth involvement in indigenous heritage protection and the relationship between Commonwealth, State and Territory regimes.'(28) Ms Evatt commented that 'this is incompatible with maintaining the Commonwealth procedure as a last resort mechanism' and went on to say:

an important national interest in itself

in all cases

Ms Evatt argued that the concern of Aboriginal people in a particular region or locality, however deeply felt, would not necessarily equate with a national interest.

The majority report of the Joint Committee suggests that the Bill should be amended to ensure that the definition of national interest itself includes the protection of indigenous heritage.(30)

The Bill's use of the concept of the national interest attracted emphatic opposition from ATSIC. In a press release released the day the Bill was introduced, the Commission commented that the Bill:

effectively allows the Commonwealth Minister...to hand over heritage protection to the states and territories, despite the clear constitutional responsibility that the Australian people gave to the Commonwealth Government in 1967.(31)

Mr Djerrkura, the head of ATSIC, also commented that the interaction of the Prime Minister's 10 Point Plan on Native Title and the Bill would place sacred and significant sites in 'double jeopardy.'(32) He said:

[The] Bill significantly erodes this sole remaining option under the Howard Government's own agenda by withdrawing Commonwealth involvement in indigenous heritage, except in cases involving the "national interest."(33)

Accreditation procedures for State and Territory regimes

The minimum standards for accreditation are set out in proposed section 26 of the Bill. They are fairly general in nature and do not contain several of the recommended standards included in either or both the majority Joint Committee's reports or the Evatt Review. Most notably the majority of the Committee recommended that a 'blanket protection' scheme should be required as a minimum standard for State or Territory legislative regimes. This would follow the Northern Territory's legislative approach, which has been cited as the 'best practice' model.(34) Other differences identified by ATSIC include the need for minimum standards to specify:

Indigenous control over assessments
Access rights
Review rights
Provision for emergency and interim protection
Provision for early consideration of heritage issues in planning processes and
Resources to ensure effective access to State and Territory remedies.(35)

Indigenous involvement in the decision making processes governing heritage protection

There are three levels at which the Evatt Review's recommendation of indigenous involvement have not been taken up. At the level of the implementing agency, which was to have had indigenous members, at the level of the advisory council, which was to give overall policy advice to the implementing agency and the Minister, and at the State and Territory level, where it was recommended that local indigenous heritage bodies be established.

The establishment of an Aboriginal Cultural Heritage Advisory Council was recommended so that it could give advice on issues arising under the Act to the Minister and the independent national body with implementation responsibilities. The recommendation was that the Advisory Council could give particular advice 'on the procedures to be followed and the persons to be consulted in making assessments for the purposes of the Act.'(36) The Advisory Council was to have been constituted by Aboriginal people, 'in such a way as to strengthen links with local Aboriginal communities which have responsibility for heritage issues.'(37)

The Bill has not established an independent agency to function as the implementing body or a national co-ordinating body, although the proposed Director of Indigenous Heritage Protection would perform some of the same functions. Further commentary on the position of the Director is provided in the Concluding Comments of this Digest.

At the State and Territory level it was recommended that minimum standards should include the establishment of Aboriginal cultural heritage bodies with responsibility for site evaluation and for the administration of the legislation. It was recommended that they should:

be independent
be controlled by Aboriginal members representative of Aboriginal communities
have gender balance
have adequate staffing, expertise and resources
have access to independent advisers, e.g. anthropologists, archaeologists.(38)

ATSIC have commented that there is a:

[f]ailure to adequately involve indigenous people in the processes and procedures established under the Bill for accreditation and assessment of significance and threat,(39)

while Ms Evatt refers to the 'glaring omission' regarding the recognition of Aboriginal responsibility in this area.(40)

The majority report of the 12^th Report was 'strongly supportive of the principle of meaningful indigenous involvement in relevant decisionmaking.'(41) Senator Herron has given an explanation of the decision not to specify that the Director of Indigenous Heritage should be indigenous (see the Concluding Comments of this Digest), but apart from this comment, the Government has yet to respond to the comments regarding indigenous involvement in the Report of the Joint Committee.

Native Title and Heritage Protection

ATSIC has identified this Bill as part of an attack by Government on indigenous rights, and commented that:

[t]he proposal to remove the Right to Negotiate from the Native Title Act is now reinforced by an effective Commonwealth withdrawal from Aboriginal and Torres Strait Islander heritage protection.(42)

During the debate on the Native Title Amendment Bill 1997 there were several amendments moved regarding the protection of indigenous heritage by both the ALP and the minor parties. These were rejected by the Government, which commented in the debate that:

The proper place to deal with heritage issues is in heritage legislation. The proper place to deal with native title issues is in the Native Title Act.(43)

The Evatt Review commented with respect to the Government's plans in the area of native title:

Towards a more workable Native Title Act: Outline of proposed amendments

The minority report of the 11^th Report also put the Bill in the context of the Government's approach to native title, saying that the issue of heritage protection could only be considered in the political, social and legislative context of the time, including the 'lengthy and divisive debate' on the native title amendments. The minority said that:

In concert with the extinguishment of native title and the erosion of indigenous rights central to the Native Title Amendment Bill, the majority recommendations [regarding heritage protection amendments] represent a retrograde step in reconciliation between indigenous and non indigenous Australians.(45)

The Human Rights and Equal Opportunity Commission have made similar comments, saying that the Bill:

cannot be seen in isolation from proposed amendments to the Native Title Act 1993 (Cth), particularly those affecting the right to negotiate. The proposed amendments to the Native Title Act significantly detract from the already very limited ability of Aboriginal people to protect their cultural heritage. By weakening heritage protection processes even further, this Bill leaves the protection of Aboriginal and Torres Strait Islander cultural heritage in extreme jeopardy.(46)

Main Provisions

A brief summary of the Bill's basic schema is provided here for the utility of Members:

The Bill sets up provisions for dealing with applications for protection of sacred sites or objects. A distinction between accredited and unaccredited State and Territory regimes is created, and this impacts on how applications for protection are dealt with. There are minimum standards which must be complied with in order for the Minister to declare a legislative regime accredited. In an unaccredited regime when an application for protection is received the Minister and Director of Indigenous Heritage Protection deal with the application on its merits. There are various procedural provisions, including the separation of determinations regarding the issue of a site or object's significance, the threat against it, and the final decision as to whether protection is appropriate. In the case of an accredited regime the Minister may only grant a long-term protection order if s/he is satisfied that to do so would be in the national interest. In all cases there are provisions made for attempts to be made at arriving at a negotiated outcome.

Part 1 - Preliminary

Proposed section 4 sets out the main objects of the legislation. These are to establish procedures which may be used to preserve or protect significant indigenous areas or objects, and to provide procedures which may be used to accredit State and Territory heritage protection regimes.(47) Unlike the current Act which this Bill would replace, the objects are framed in terms of providing procedures to achieve the aims, rather than focussing on the aims themselves. The object of the current Act is to, itself, preserve and protect significant areas or objects, whereas this Bill's object is to provide for procedures to preserve and protect significant areas of objects.

Proposed section 5 provides for various definitions. The definitions of 'Aboriginal peoples' and 'Torres Strait Islander' combine to give the definition of an 'indigenous person', a term which is central to the rest of the proposed Act.

The definition of 'indigenous human remains' has various exclusions, including those bodies, or remains of a body, which are buried in accordance with the law of a State or Territory, or which are buried in land that is, in accordance with indigenous tradition, used or recognised as a burial ground. It also excludes objects made from bodily material 'that is not readily recognisable as being bodily material' and bodies or remains of a body which fall within the laws of a State or Territory 'relating to medical treatment or post-mortem examinations.'

Proposed section 5 defines an 'accredited heritage protection regime' as a State or Territory regime which the Minister has declared as accredited under proposed section 25. The status of an accredited heritage protection regime is important in determining the role for the Commonwealth in heritage protection.

The acronyms used in the definition of an 'AR application' and a 'UR application' are not explicitly spelt out, however they are important as mnemonics to understanding the scheme of the legislation. An application for a long-term protection order originating in a State or Territory with an accredited regime is an 'AR application' and an application originating in a State or Territory without an accredited regime (an 'un-accredited regime') is a 'UR application.' There are other acronyms which it is helpful to keep in mind. There are LPOs, IPOs and EPOs, which are 'long-term protection orders,' 'interim protection orders' and 'emergency protection orders' respectively.

'Indigenous tradition' is another significant definition, and it is given as 'the body of traditions, observances, customs and beliefs of indigenous persons generally or of a particular community or group of indigenous persons.' It includes traditions specifically relating to 'particular persons, areas, objects or relationships.' The definition of indigenous tradition is also used in the definitions of 'significant indigenous area' and 'significant indigenous object', both of which are defined as significant if they are significant to indigenous persons, in accordance with indigenous tradition.

Proposed sub-section 5(5) defines an 'overlapping area' as an area which falls within, or that includes, an area to which an original application relates.

Proposed sub-section 5(6) defines what constitutes injury or desecration of an area or object, and includes things done which are inconsistent with indigenous tradition. In the case of an indigenous area this may include things done in 'or near the area.'

Proposed section 6 extends the scope of the legislation to encompass any waters claimed by Australia under the Seas and Submerged Lands Act 1973, while proposed section 8 extends the proposed Act to have an extra-territorial operation.

Part 2-The Director of Indigenous Heritage Protection and the Register

Proposed section 9 establishes a Director of Indigenous Heritage Protection ('the Director'). Under proposed section 10 the functions of the Director would include:

advising the Minister with respect to the accreditation of State and Territory regimes
receiving, and accepting or rejecting, applications for protection
responsibility for the register of applications
taking appropriate action under the legislation when indigenous human remains are reported or delivered
facilitating negotiation or mediation between applicants and other affected persons
assessing the significance of, or threat to, areas and objects which indigenous people are seeking to protect, and to report to the Minister on these assessments, as well as the effect of making a protection order on 'other interests.'

Proposed sections 11-21 deal with the appointment of the Director and the terms and conditions of his or her appointment. The Director is to be appointed by the Minister. There are no conditions laid down for the Minister's choice of appointment and the Director may be appointed on a full-time or part-time basis.(48) The maximum term of appointment is 5 years, with reappointment being possible.(49) Standard conditions apply with respect to the Director's conditions of employment, resignation or termination of appointment. Proposed section 16 provides for the Director to make a disclosure to the Minister of the Director's financial interests and the financial interests of the Director's immediate family. Proposed section 21 would allow the Director to employ consultants 'having suitable qualifications and experience.'

Proposed section 22 & 23 provide for the establishment of a Register of Claims for Protection, which must be made reasonably accessible to the public.

Part 3-Accreditation Procedures

Proposed section 24 provides for the relevant Minister of a State or Territory to write to the Commonwealth Minister asking for accreditation under the proposed Act. There are three distinct areas of accreditation, one for areas, one for objects and one regarding the reporting of indigenous human remains. Proposed section 25 provides that if the Minister is satisfied the State or Territory laws comply with the minimum standards for accreditation then the Minister must declare those laws to be an accredited heritage protection regime with respect to whichever of the three areas have been met. The Minister may seek further particulars and may seek advice from the Director or anyone else s/he considers appropriate.

Proposed section 26 sets out the minimum standards for accreditation. These standards are very general in nature but are crucial because the structure of the Bill places a high degree of significance on whether there is an accredited regime in place. The standards variously relevant to the three areas open for accreditation include the need for the laws in force in a State or Territory to:

provide for the protection of areas and objects that are significant to indigenous persons in terms of their indigenous traditions
recognise that indigenous persons are the primary source of information about the significance to indigenous persons of areas and objects
provide an option for advance approval for an activity in an area to be obtained
promote negotiated outcomes
provide protection for culturally sensitive information disclosed in the course of administering heritage protection legislation
ensure that interested parties are treated fairly, including being given an opportunity to put their views and being able to obtain reasons for decisions
provide effective deterrents to injury or desecration of areas or objects through appropriate offences and penalties
provide for the reporting of findings of indigenous human remains.

If the Minister decides that a heritage protection regime ceases to meet the minimum standards in one of the three areas the Minister must notify the relevant State or Territory Minister and if no response is received or no adequate action taken within 90 days (or longer, as the Minister allows) the Minister can revoke the accreditation (proposed section 28).

Part 4-Applications for Protection

Division 1-The receipt and registration of applications

The first issue dealt with in proposed part 4 is receiving and dealing with applications at a preliminary level. Proposed section 29 would require that, in order for a long-term protection order (LPO) to be made over an area or object, an application must be made in writing to the Director by an indigenous person or their agent. The application must contain various pieces of information, including a description of the significance of the area or object to the applicant, a description of the activity that threatens it and a description of the form of protection sought. The Director is required to enter an application on the Register and notify the Minister (proposed section 30). The Register entry should include the information contained in the application, although there is a capacity to make it more general than in the application, and to protect the identity of the applicant. If there is confidential information included in the application the Director may withhold the information and must state that this has been done and the reasons for it.

An application can be rejected on a number of grounds:

if the applicant has not exhausted the remedies available within the relevant State or Territory (proposed subsection 31(1))
if the applicant fails to supply further information as requested by the Director (and within the time frame specified by the Director) (proposed subsections 31(2) & (3))
if the Minister or the Director are satisfied that the application is vexatious or frivolous (proposed section 32).

If an application is rejected, the Minister or Director must notify the applicant and enter the reasons on the Register.

If an application is not rejected the Director must publish a notice in a newspaper circulating in the region informing the public of the application and inviting any other indigenous person with an interest in the area to lodge an application. If an application is not lodged within 30 days, then any potential applicant is permanently barred from making an application for protection for that area or an overlapping area under the Act (proposed section 33).

Division 2-Dealing with UR applications

The next issue dealt with in this Part deals with UR applications (i.e. applications originating from an un-accredited State or Territory). There is a central requirement that the Director works with the parties concerned in an application to reach 'an agreed outcome' (proposed section 34). This is to be done through the use of negotiation or mediation processes. If the Director decides that negotiation and mediation process have become unworkable the Director must then make a report to the Minister which contains a finding as to whether a site is a significant indigenous area or object for the applicant and whether it is in danger of injury or desecration. It must also explain the proprietary and pecuniary effects (on anyone other than the applicant) of making a protection order and must contain an account of how the information in the Report was collected (proposed section 35). The Report may include any other matter that the Director considers relevant. Proposed section 36 enables the Minister to appoint an independent reviewer to make another report if the Minister is not satisfied the process was adequate or if new information has become available. While the Minister is bound to accept the findings in the Director's report or the independent reviewer's report regarding the question of whether an area or object is significant and under threat of injury or desecration (proposed section 37), the Minister has an unfettered discretion as to whether to make a protection order and can take into account any matter that s/he thinks relevant (proposed section 38).

Division 3-Dealing with AR applications

In the case of applications from an accredited State or Territory (an 'AR application') the Director must refer the application to the Minister who must decide whether to make a protection order on the basis of the 'national interest.' The Minister may be satisfied that the area or object is a significant indigenous area or object under threat of injury or desecration but that, on the face of the application, there is no indication that such an order would be in the national interest. In this case the application would be rejected (proposed subsection 39(2)). The Minister may not make a protection order unless s/he has consulted with the relevant State or Territory Minister regarding the finding of whether an object is significant, whether it is under threat and how these findings were arrived at, as well as information regarding the proprietary or pecuniary interests likely to be affected and the views of the State or Territory on the consequences of a protection order. Once these consultations have occurred it is open for the Minister to treat the findings of the State or Territory regarding the existence of an object or area significant to indigenous persons and under threat of injury or desecration as binding (proposed section 40). Alternatively the Minister may require the Director to make a report concerning one or more of the questions of:

the significance of an area or object to an indigenous applicant
whether or not the area or object is threatened by injury or desecration
the effect of a protection order on any proprietary or pecuniary interests in the area or object concerned.

Under proposed subsection 41(2) the Minister must request such a report unless s/he has opted to be bound by the State or Territory finding on the issue of significance and threat.

Once again the Director may attempt to facilitate an agreed outcome if the Minister asks him or her to do so (proposed section 42), and the Minister may seek a further report from an independent reviewer. The Minister is then bound by either the Director's report or the report of the independent reviewer (proposed section 44).

If the Minister is bound by a report that an object is significant to indigenous persons and that it is under threat of injury or desecration the Ministers can make a long-term protection order provided 'the Minister is satisfied that the making of such an order is in the national interest' (proposed section 45). In making such an order the Minister may take into account the views of the State or Territory, the report of the Director or the report of the independent reviewer and any other matters that the Minister considers relevant.

Division 4-Content, notification and effect of long-term protection orders

The length of a long-term protection order ('an LPO') is not specified in the Bill, rather it 'has effect for such period as is specified in the order.' Proposed section 46 specifies that an LPO must describe the area or object with enough detail to enable identification and must contain provisions relating to the protection and preservation of the area or object. If an LPO is made about indigenous human remains it can include provisions requiring their delivery to appropriate indigenous persons who can accept possession, custody or control or who can give directions about how the remains should be dealt with. If there is no appropriate indigenous person or persons they should be transferred to a 'prescribed authority' for safekeeping (proposed subsection 46(4)). Once a decision about an LPO has been made the Minister must notify the Director, who must enter the details of the decision on the Register and ensure interested parties are notified. An LPO must also be published in the Gazette and in a local newspaper (although failure to do so does not make the order invalid).

Division 5-Negotiation and mediation

The negotiation and mediation processes are important for the operation of the Bill's scheme. The overall scheme provides that agreements arrived at between 'core parties' can be registered and attain the status of a binding contract, thereby excluding further applications under the proposed Act, unless a new threat arises, or a signatory to the agreement breaches it (proposed section 52). If a new application is allowed because of a breach of the agreement the proposed Act would allow the applicant to sue for a breach of contract. Core parties are identified by the Director and include the applicant and any other persons with a direct proprietary or pecuniary interest in the area or object (proposed section 48). When attempting a negotiation or mediation the Director may also involve other parties in the processes as s/he sees fit. The actual process of negotiation and mediation is left for the Director to determine, including the possible appointment of a mediator and the possible need to ensure confidential information is not disclosed inappropriately (proposed subsection 49). If the parties come to an agreement outside of the formal negotiation or mediation process this can be registered too, as long as the Director is satisfied that the core parties s/he would have identified have entered into the agreement (proposed section 54).

The time frame for negotiation or mediation is limited to three months, with the possibility for an extension of another month (the period of time runs from the end of the thirty day period set aside to advertise the initial existence of the application and allow additional applications to be made). In the case of an AR application the Minister can determine a time period for negotiations of less than 3 months (proposed section 50).

During the negotiating period any of the core parties can declare that they will not participate, or alternatively the Director can come to the conclusion that the processes of negotiation and mediation have no prospect of success. In either case the process of negotiation and mediation can be brought to a halt short of the three month period. (In the case of an AR application the Minister makes this decision, and in the case of a UR application the Director makes the decision; proposed section 53).

Division 6-The making of reports

The procedures to be followed by the Director or independent reviewer in preparing reports are laid out in some detail. The Director may choose to adopt a report, or parts of a report, prepared at the State or Territory level when there is an un-accredited regime in place. The Director may accept either the finding regarding the existence of a significant area or object and/or the existence of a threat against it. The Director must then advertise the existence of the application and the likely impact of a protection order, and can ask for input from the community on one of the two issues (of whether there is a significant area or object and the existence of a threat against it), depending on whether the State or Territory report was adopted, and in all cases should ask for representations on the effect of making a long-term protection order on the proprietary or pecuniary interests of people other than the applicants. The Director has a discretion not to advertise the application if s/he thinks it would not be appropriate (proposed subsection 55(3)). In the case of an accredited regime the Director has no discretion regarding advertising the application. An independent reviewer can also advertise inviting representations, or can ask a specified person to put in a submission. The independent reviewer has access to the information collected by the Director and when soliciting submissions should make this clear to people who might make a submission (proposed section 58).

Proposed section 57 recognises that indigenous persons are the primary source of information regarding the significance of areas or objects in terms of indigenous traditions. When making a representation regarding an application people are not entitled to see the application or other representations regarding the application (proposed section 59). The reports by either the Director or the independent reviewer need to include not just information regarding the significance of an area or object and the potential threat, but also the process followed in, and general reasons for, reaching the conclusions. Similarly a finding regarding the proprietary and pecuniary interests of people potentially affected by a protection order needs to have background documentation (proposed section 61).

There are time limits set on the preparation of reports by the Director or the independent reviewer. In the case of reports on UR applications by the Director the period is three months, otherwise the time frame is in the discretion of the Minister (including a capacity to extend the reporting period). Late reports are not rendered invalid (proposed section 60).

Division 7-Emergency protection orders and interim protection orders

The Minister has the capacity to issue emergency protection or interim protection orders ('EPOs' and 'IPOs' respectively). EPOs can be issued on the Minister's initiative or if an application for a long-term protection order has been refused because the applicant has not exhausted the State or Territory remedies (proposed section 62). Before issuing an EPO the Minister must be satisfied that there is a significant indigenous area or object concerned and that it is 'under serious and immediate threat of injury or desecration.' In the case of a State or Territory with an accredited regime there is an additional requirement that the Minister considers that protection of the area may be in the 'national interest.' Similarly the Minister can issue an IPO if an application for a long-term protection order has been made but proceedings have not been completed. Similarly the Minister must be satisfied that the application establishes that there is a significant indigenous area or object concerned and it is under serious threat of injury or desecration, and, in the case of an accredited regime, it must be in the national interest.

If the Minister has given notice that the State or Territory regime no longer satisfy the minimum requirements for an accredited regime then, in the case of an EPO or an IPO, the restriction on granting the orders to cases where the national interest might be at stake is lifted (proposed subsections 62(4) & 63(3)).

An EPO can be issued for 7 days, a period which can be renewed for another 7 days as often as the Minister thinks appropriate. In the case of an EPO where the State or Territory remedies have not been exhausted, the Minister can make a determination as to how long the EPO is to function for, and can extend this period if s/he is satisfied that the remedies have still not been exhausted.

An IPO can be issued for an initial period specified in the order, although there is a limit of four months. This can be extended first for an additional three months, and after that for on-going periods of one month at a time.

Both an EPO and an IPO must specify the area or object sufficiently for identification purposes and must have provisions relating to the protection and preservation of the area or object.

Proposed section 64 requires the Minister to give notice of the order to people affected by it, including publishing an IPO in the Gazette and in a local newspaper.

Division 8-Multiple applications

There are provisions made for dealing with a number of applications over a particular area or object. In the case of negotiation and mediation processes the applications are treated as one application, and all applicants become core parties (proposed section 65). If the applications are for overlapping areas, the areas are amalgamated and considered as one.

If a negotiated outcome fails and the Minister must consider making an order then, when there is more than one application, s/he is required to make one single order over the area or object, despite the fact that different reports are to be prepared in relation to each application.

Part 5-Miscellaneous provisions

Division 1-Indigenous human remains

When there is no accredited regime in place regarding indigenous human remains proposed section 67 imposes a strict liability offence for a failure to report the discovery of such remains. There is an exception if it would be contrary to a person's indigenous traditions to report the remains. When indigenous human remains are delivered to the Director, s/he must give them to appropriate indigenous persons, or a 'prescribed authority' (proposed section 68).

Division 2-Offences

There is a penalty of up to five years for violating a protection order over an area, and two years for an object. In the case of these penalties there is no liability if there is evidence the person violating the protection order did not know there was a protection order in force. This is an unusual provision in that, generally speaking, ignorance of the law is not accepted as a defence to a criminal charge.

Division 3-Administrative review of certain decisions

There is provision made for the administrative review of decisions to reject applications on the grounds that they are vexatious or frivolous.

Division 4-Power of courts and of the Administrative Appeals Tribunal etc

There are various provisions designed to give some measure of protection to the confidentiality of indigenous information in court proceedings under the proposed Act. In making decisions on confidentiality the court or Tribunal must take into account not only the interests of indigenous traditions but also 'any relevant commercial interests' (proposed section 73). An immunity from a requirement to disclose information can be granted to the person holding the information, although if, on balance, there is a public interest in the 'administration of justice' favouring disclosure which outweighs the public interest in protecting the information, disclosure can still be ordered. The Commonwealth Minister can apply for an injunction if there is a danger that a protection order may be violated (proposed section 75).

Division 5-Other matters

Long-term protection orders and declarations about the status of a State or Territory as an accredited regime (or not) are disallowable instruments under proposed section 77. There are also provisions which will prevent them from being treated as legislative instruments.

Proposed section 78 would prevent the proposed Act from breaching the Constitutional requirement for just terms for an acquisition of property. A person who has had, in effect, their property acquired can apply to the Federal Court for the recovery of compensation.

Provision is also made for applicants, or for anyone affected by a decision under the proposed Act, including anyone who may be the subject of an injunction to prevent them from violating a protection order, to apply to the Attorney-General for legal or financial assistance.

Schedule 1-Repeal of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and related saving and transitional provisions

Rather than simply repealing the whole of the current Act, in item 2 the Bill saves the provisions regarding Victoria, which has a particular Part of the current Act devoted to it. (The Commonwealth passed this Victorian-specific addition to its own legislation when the then State Opposition blocked the Victorian Government's legislation in the upper house in 1984.)

Items 3 & 4 in this schedule deal with declarations or applications that may have already been made under the current Act. These will continue to function as if the current Act continued in force unless convenience dictates otherwise in the case of recent applications.

Schedule 2-Amendment of the Archives Act 1983 and the Freedom of Information Act 1982

This schedule is designed to ensure the confidentiality of documents generated under the proposed Act. Items 1 & 2 make amendments to the Archives Act 1983 ('the Archives Act') which would ensure that such documents which may be archived are exempt from various requirements in the Archives Act, such as the right of public access to Commonwealth records in Part V. Items 3-9 are consequential amendments. Similarly, item 10 would exempt documents generated under the proposed Act from the operation of the Freedom of Information Act 1982 and items 11-19 are consequential amendments.

Concluding Comments

Apart from the general differences between the recommendations of the Evatt Review and the provisions of the Bill mentioned in the Background of this Digest there are a few other specific issues which have been commented upon.

The decision to give the Minister an unfettered discretion when appointing the Director of Indigenous Heritage Protection is likely to be the subject of some controversy. Similar appointments in comparable legislation are usually made through the Governor-General, giving the appointments a degree of significance, and possibly a degree of distance from the immediacy of appointment through the Minister. Thus the Aboriginal and Torres Strait Islander Social Justice Commissioner and other human rights commissioners are appointed by the Governor-General, as are appointments to comparable positions under the:

Australian Law Reform Commission Act 1973(50)
Australian War Memorial Act 1980(51)
War Graves Act 1980(52)
Australian National Maritime Museum Act 1990(53)
National Gallery Act 1975(54)
National Parks and Wildlife Conservation Act 1975(55) and
the National Museum of Australia Act 1980(56)

The decision to give no legislative indication regarding the desirable qualifications or experience of a potential Director has been the subject of some criticism. The Director of the Indigenous Law Centre, Mr Mick Dodson, has already suggested that the position should be made subject to the same sort of considerations that the Aboriginal and Torres Strait Islander Social Justice Commissioner's appointment was subject to. While that position did not require the occupant to be indigenous, it did require that:

[a] person is not qualified to be appointed unless the Governor-General is satisfied that the person has significant experience in community life of Aboriginal persons or Torres Strait Islanders.(57)

In evidence to the Joint Committee Senator Herron said that:

we did not think the bill should specify narrow, mandatory qualifications, because it remains to be seen who is available and what their expertise is, et cetera. It is in everyone's interests for the government to appoint an appropriately qualified person as director, but we do not know who is available. We feel that, because of that, we should not specify mandatory requirements-whether they should have a degree in anthropology, for example, or whether they should be indigenous or not. It may well be that they are not indigenous but, of course, the director will need to have an appropriate understanding of the cultural requirements and be culturally sensitive in relation to indigenous affairs.(58)

The majority report of the Joint Committee endorsed Mr Dodson's suggestion.(59)

The question of what constitutes 'tradition' has also been the subject of some comment. Indigenous organisations have pointed out that the definition used in the Bill (in part indigenous tradition is defined as 'the body of traditions, observances, customs and beliefs of indigenous persons generally or of a particular community or group of indigenous persons...')(60) does not conform fully with the Evatt Review's recommendations. The Review says that:

[the] definition should extend to areas and objects of significance to Aboriginal people in accordance with tradition, including traditions which have evolved from past traditions. It should also extend expressly to historic and archaeological sites.

The Bill does not make explicit reference to historic or archaeological sites, and the Indigenous Land Corporation have commented that:

There is no requirement for the accredited regimes to recognise the evolution of tradition. ... There is clearly a need for this in the light of the narrow interpretations that have been given to "tradition" in the recent past.(61)

The National Aboriginal and Torres Strait Islander Catholic Council picked up the same point, commenting that the Bill does not allow 'for the continuing evolving nature of our culture.'(62) ATSIC recommend that the definition of indigenous tradition be extended to explicitly state that tradition is dynamic and evolves over time.(63)

A procedural issue that has been raised regarding the Bill is that it would only allow applications for protection orders to be made orally in the case of emergency protection orders.(64) In other instances the application must be in writing. This contravenes the Evatt Review's recommendation that:

Applications should be able to be made easily. A valid application is one that is 'made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration'.(65)

Another procedural issue regards reasons for decisions. Both Ms Evatt's submission to the Joint Committee and its 12^th Report make the point that the Bill does not clearly require written reasons to be given by the Minister when s/he makes a decision under the proposed Act regarding protection orders. Given that proposed section 77 would make these declarations disallowable instruments it is important that reasons be supplied in order for the Parliament to be able to give the issues appropriate consideration. This principle is outlined in the 11^th Report, which recommended that:

Where the Commonwealth Minister takes decisions under the last resort function, the reasons for the decision be required to be published at the same time that the actual determination is tabled.(66)

Endnotes

During the debate on the Native Title Amendment Bill 1997 Senator Minchin, the Minister Assisting the Prime Minister, commented that: 'We obviously support heritage protection. Many Liberal governments have enacted heritage legislation.' Hansard, 3 December 1997, p. 10222. Members of the ALP, minority parties, and independents have made numerous statements in support of heritage protection, both during the Native Title debates and, for instance, in the dissenting reports of the Joint Committee on Native Title.

See, for instance, the Council for Aboriginal Reconciliation's home page at
http://www.austlii.edu.au/car/

Mabo v State of Queensland [No 2] (1992) 175 CLR 1.

The Aboriginal Peace Plan presented to Prime Minister Keating on 27 April 1993

See Recognition, Rights and Reform, Aboriginal and Torres Strait Islander Commission, Going Forward, Council for Aboriginal Reconciliation and Towards Social Justice? From the Council for Aboriginal Reconciliation, the Aboriginal and Torres Strait Islander Commission and the Office of the Aboriginal and Torres Strait Islander Social Justice Commission, 1994. See generally Noble Salvage: Aboriginal Heritage Protection and the Evatt Review, by Russell Goldflam, Aboriginal Law Bulletin vol 3, No 88, January 1997.

Eleventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, April 1998 (hereafter the 11^th Report).

Twelfth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, May 1998 (hereafter the 12^th Report).

As the second reading speech puts it: 'There is common agreement on the need for reform.' House of Representatives, Official Hansard, 2 April 1998, 2416.

Evatt, E, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, 1996, p. 36 (hereafter 'the Evatt Review'). The legislative framework includes both the State and Territory legislation in the area and, to varying degrees, The Australian Heritage Commission Act 1975 (Cth), The World Heritage Properties Conservation Act 1983 (Cth), The Native Title Act 1993 (Cth), The Protection of Movable Cultural Heritage Act 1986 (Cth), The Environment Protection (Impact of Proposals) Act 1974 (Cth) and The National Parks and Wildlife Conservation Act, 1975 (Cth).

Evatt Review, 42.

Evatt Review, xv.

Recommendation 5 and Recommendations 2 and 9, respectively.

11^th Report, Recommendation 9, pp. X and 104 and 12^th Report, p. 16 and 17, and p. 24.

12^th Report, 16 and 17.

UN General Assembly 16 December 1966, ratified by Australia on 13 August 1980.

UN General Assembly 16 December 1966, ratified by Australia in 1975.
Articles 1(1) and (3). See also ICCPR article 1.

UN General Assembly, 19 December 1966; ratified by Australia on 30 September 1975.

Article 1.

Ratified by Australia in 1974.

Another international document which could be relevant is the Working Group on Indigenous Peoples' Rights Draft Declaration on the Rights of Indigenous People (UN E/CN.4/Sub.2/1994/2/Add.1 (1994).

See for example Goldflam, R. Noble Salvage: Aboriginal Heritage Protection and the Evatt Review, Aboriginal Law Bulletin vol 3, No 88, January 1997, p. 4, and the Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund by Mr Steve Palyga, the solicitor for the developer in the Hindmarsh Island affair, Submission No HA1.

11^th Report, 5.

In correspondence to the Joint Committee, 11^th Report, 3.

Appendix 7 of the 11^th Report.

See for instance...ATSIC Submission No HA11(a), Indigenous Law Centre oral advice to the Committee from Prof Garth Nettheim and Mr Mick Dodson, Indigenous Land Corporation, South Australia, Mr David Ross, Submission No HA6(a).

House of Representatives, Official Hansard, 2 April 1998, 2419.

ATSIC submission to the Joint Committee, No HA11(a), 15.

Submission No HA38 to the Joint Committee, 5.

12^th Report, 18.

'Heritage Protection Bill another attack on existing rights,' Media Release, 2 April 1998.

Reported in the Sydney Morning Herald, 7^th May, 1998.

ibid.

12^th Report, p. 104.

ATSIC Submission No HA11(a), 21.

Evatt Review, Recommendation 11.16.

ibid.

Evatt Review, Recommendation 6.3.

ATSIC Submission No HA11(a), 15.

Submission to the Joint Committee, No HA38, 10.

12^th Report, p. 19.

ATSIC 'Heritage Protection Bill another attack on existing rights,' Media Release, 2 April 1998.

Senator Nick Minchin, Senate, Official Hansard, 3 December 1997, 10221.

Evatt Review, 26 and 27.

11^th Report, Minority Report, 1.

Submission No. HA25(a), by Ms Zita Antonios, Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, 8.

It should be noted that the Bill confines itself to self-governing Territories when referring to a Territory. For ease of reference this Bills Digest refers to self-governing Territories simply as a Territory. Jervis Bay Territory and external Territories are not to be regarded as having an accredited protection regime according to proposed section 28.

Proposed section 11.

Proposed section 12.

Section 7.

Sections 10 and 20.

Section 5.

Section 30.

Section 24.

Section 22.

Section 13. It should be noted that not all legislative schemes are comparable and certainly not all comparable appointments are made through the Governor-General. The Australian Trade Commission Act 1985 has the Minister appoint the Managing Director (on the recommendation of the Board), the Australian Institute of Health and Welfare's Director is also appointed by the relevant Minister on the recommendation of the Institute, while the Endangered Species Protection Act 1992 has an advisory committee, the Chairperson of which is appointed by the Minister.
man Rights and Equal Opportunity Commission Act 1986, section 46B.

Evidence, NT134.

12^th Report, 20.

Proposed section 5.

Submission to the Joint Committee, No. HA6(a) by Mr David Ross, Chairman, Indigenous Land Corporation, 6.

Submission No. HA37, 1.

ATSIC Submission No HA11(a), 33.

Mr Mick Dodson, oral evidence to the Joint Committee, NT202.

Recommendation 10.23.

11^th Report, x.

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