CHAPTER 1
Introduction
Legislative Background
The Act
1.1 Pursuant to s. 4, the purposes of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (hereafter the Act) are the
preservation and protection of areas and objects that are of particular
significance to Aborigines in accordance with Aboriginal tradition. Protection
is conferred through successful application to the Commonwealth Minister
[ss.9, 10 and 12]. The Minister must consider all applications, and declarations
are issued at the Minister's discretion [ss.9(1), 10(1) and 12(1)]. Further,
an officer authorised under the Act may also issue an emergency declaration
for a limited duration of 48 hours pursuant to s.18.
1.2 Importantly, the Act is an act of last resort, and is intended to
operate only where there is inadequate protection under State or Territory
law [s.7]. The Act applies to all Australian land and waters; any breach
of a protection declaration can incur criminal penalties [ss7(3) and Part
III].
1.3 Section 33 of the original Aboriginal and Torres Strait Islander
Heritage (Interim Protection) Act 1984 provided that the Act
would cease to have effect after two years. In 1986 an Amendment Act repealed
Section 33 and removed (Interim Protection) from the title. In addition,
Part IIA was added; that Part applies only in Victoria. In 1987 the State
Government had requested the Commonwealth to introduce a new Part to make
specific provision for Victoria. [1]
The Hindmarsh Island Bridge Bill
1.4 The Hindmarsh Island Bridge Bill 1996 was introduced into the House
of Representatives on 17 October 1996. The purpose of the Bill was to
enable the construction of the Hindmarsh Island Bridge without any further
action being taken pursuant to the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984. The Bill sought to achieve this by
excluding from the operation of the Act those areas of land and water
that are required for the construction and use of the bridge.
1.5 On 31 October 1996 the Bill was referred to the Senate Legal and
Constitutional Legislation Committee. The Bill was passed by the House
of Representatives on 7 November and the Senate Committee reported on
5 December 1996, recommending that the Senate pass the Bill.
Government Review of the Act
1.6 On 17 December 1996 Senator the Hon John Herron, Minister for Aboriginal
and Torres Strait Islander Affairs, announced an 'overhaul' of the Act.
In a media release Senator Herron advised that consultation would begin
with State and Territory governments, indigenous groups and other interested
parties. Senator Herron stated that the basic elements of the 'revamp'
would be as follows:
- the decision on whether an area or object is significant to Aborigines
and Torres Strait Islander people and under threat will be separated
from the decision on whether to grant a protection order, which will
be made by the Minister;
- appropriate protection will be provided to confidential indigenous
information;
- an advance site clearance process will be included;
- mediation will be promoted by requiring that an initial offer of mediation
to applicants and affected parties be made;
- the content of procedural fairness, including time limits on heritage
protection processes, will be defined in the Act so as to avoid the
type of litigation that has undermined the operation of the existing
Act; and
- provision will be made for assessment and accreditation of State and
Territory legislation and processes for heritage protection where they
meet the national minimum standards.
1.7 In a letter dated 14 July 1997 Senator Herron confirmed that ATSIC
would hold a number of workshops to provide detailed information about
the proposed changes and to seek feedback. Senator Herron advised that
the proposals for reform were partly based on the recommendations in Ms
Elizabeth Evatt's report on her review of the Act. (That report, hereafter
the Evatt Report, had been provided to the Minister on 22 August 1996.)
1.8 The Minister also released two discussion papers:
- National Standards for Protecting Indigenous Heritage was a
revised version of the discussion paper on Proposed Minimum Standards
Framework for the Accreditation of State and Territory Aboriginal and
Torres Strait Islander Heritage Protection Regimes which was initially
distributed by ATSIC in March/April 1997; and
- Reforming the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984.
From 28 July to 12 August 1997 ATSIC completed a round of workshops that
considered these documents. ATSIC has advised the Committee that it briefed
the Minister on the outcome of the workshops in September 1997; ATSIC's
report on the workshops is reproduced at Appendix 1 of this report.
The Parliamentary Inquiry
1.9 The Senate considered the Hindmarsh Island Bridge
Bill 1996 in committee during March 1997. On 26 March 1997 the Senate
passed amendments moved by Senator the Hon Bob Collins; they
provided that the terms of the Racial Discrimination Act would prevail:
(1) Page 1 (after line 8), after clause 2, insert:
(1) For the avoidance of doubt, it is expressly declared to be
the intention of the Parliament that the terms of the Racial Discrimination
Act shall prevail over the provisions of this Act.
(2) Nothing in this Act shall be taken to authorise any conduct,
whether legislative, executive or judicial, that is inconsistent
with the operation of the Racial Discrimination Act.
(2) Clause 3, page 2 (after line 7), after the definition of pit
area, insert:
1.10 The House of Representatives advised the Senate on 27 March that
it disagreed with the amendments. The Senate subsequently did not insist
on the amendments and passed the Bill on 12 May; it was assented to on
22 May 1997.
1.11 In adopting the report of the Senate Legal and Constitutional Legislation
Committee and prior to the Third Reading, on 26 March 1997 the Senate
agreed to a motion referring the following matter to the Parliamentary
Joint Committee on Native Title:
the urgent need for amendments to the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, consistent with the report of
the Review of that Act by Justice Elizabeth Evatt, in order to avoid
or minimise the repetition of any further incidents, such as the Hindmarsh
Island Bridge situation, in which the spiritual and cultural beliefs
of the Aboriginal and Torres Strait Islander people are not able to
be properly considered under existing legislative arrangements.
The Senate resolved that the Committee should report about this inquiry
on or before the last day of sitting in 1997.
Public Hearings
1.12 The Committee advertised this inquiry on 17 May and subsequently
on 19 and 21 May. On 4 June the Committee agreed to the following program
of public hearings:
| Adelaide |
1 August |
| Cairns |
15 August |
| Canberra |
29 August |
| Sydney |
5 September |
| Perth |
12 September |
| Darwin |
17 October |
| Melbourne |
24 October |
1.13 The Committee's program was interrupted by its inquiry into the
Native Title Amendment Bill 1997, about which it reported on 27 October
1997. Consequently, on 19 November 1997 the Senate resolved to extend
the reporting date for the Heritage Act inquiry until the end of the first
sitting week in April 1998.
1.14 Accordingly, the public hearing scheduled for Darwin on 17 October
1997 was deferred until 17 February, and an additional hearing was held
in Alice Springs on 18 February 1998. This program of hearings was completed
and the Committee also received 35 written submissions. The public hearing
program is detailed at Appendix 2 of this report, and the list of submissions
is provided at Appendix 3. The Committee is grateful to all witnesses
at the public hearings and to those who provided written submissions.
Not all evidence could be referred to in this report; however, it was
carefully considered and informed the views that were ultimately formed.
Private Meeting with Ms Evatt
1.15 Before commencing its program of public hearings, the Committee
considered that it would benefit from the advice of the Hon Elizabeth
Evatt AC concerning the August 1996 report for which she was responsible.
The Committee is most grateful that Ms Evatt agreed to attend a private
meeting on Monday 16 June 1997 (pursuant to Senate Standing Order 36).
The initial briefing provided by Ms Evatt was of assistance in reviewing
the issues involved and in advising the Committee of matters on which
it could concentrate.
Matters to be Addressed
1.16 The Senate resolution of 26 March 1997 provides the following matters
to be addressed:
- with the benefit of the Evatt Report, whether, (and if so what) amendments
to the Act are needed;
- the criteria for desirability being
1.17 There were numerous aspects to 'the Hindmarsh Island Bridge situation'.
The Committee interprets the Senate motion to be referring to the complete
range of difficulties experienced by all parties to that matter, and the
desirability of reducing or eliminating them. Those parties included indigenous
people, individuals with commercial interests, community groups, State
government and the Commonwealth Minister. A chronology setting out developments
in the Hindmarsh Island Bridge matter is provided at Appendix 4 to this
report.
The Parliamentary and Government Inquiries
1.18 The Committee considered it desirable to know when the Commonwealth
Government envisaged finalising its review of the Act, and introducing
amending legislation into the Parliament. Clearly, the Committee's report
would have less effect were the Government's amending legislation already
finalised. The Committee wrote to the Minister's office on 2 February
1998 about this matter. On 4 March the Minister's Chief of Staff replied,
advising only that amending legislation would be introduced `as soon as
possible'; that letter is provided as Appendix 5 to this report. It is
the Committee's expectation that its report will inform the Government's
approach to the amending legislation that the Government announced as
a commitment in the March 1996 election. Further, the Committee refers
to the Government the suggestion by the Central Land Council that draft
legislation be released for public comment. [2]
1.19 The Committee's report was adopted at private meetings on Monday 30
and Tuesday 31 March 1998.
Footnotes
[1] Evidence, p.NT 848.
[2] Submission No HA35.
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