CHAPTER 2
The Act
Constitutional Power
2.1 In the Second Reading speech concerning the Act, the Minister stated
that the Commonwealth Government was seeking a legislative framework in
which to exercise the constitutional power and responsibility given in
the 1967 referendum. Section 51(xxvi) of the Constitution empowers the
Commonwealth Parliament to make laws with respect to the people of any
race for whom it is deemed necessary to make special laws; the words `other
than the aboriginal race in any State' which originally appeared in the
section, were removed pursuant to the referendum.
Purpose
2.2 Section 4 provides that the purposes of the Act are:
...the preservation and protection from injury or desecration of areas
and objects in Australia and in Australian waters, being areas and objects
that are of particular significance to Aboriginals in accordance with
Aboriginal tradition.
In introducing the Bill on 6 June 1984, Senator the Hon Susan Ryan stated
that the legislation would fill a gap in the law which allowed sites of
significance to be damaged, destroyed or desecrated, and could allow objects
of significance, including Aboriginal human remains to be traded, displayed
or otherwise used in ways which were anathema to Aborigines and their
traditions:
The need for legislation to enable direct, immediate action by the
Commonwealth has been highlighted by such events as Noonkanbah and a
number of situations which have arisen during the life of this Government.
Time and again the Commonwealth has been powerless to take legal action
where state or territory laws were inadequate, not enforced or non-existent,
despite its clear constitutional responsibility. [1]
2.3 The Minister provided examples of the circumstances where it was
envisaged that the legislation would come into effect. These were:
For example, the construction of a road through or near a significant
Aboriginal area, entry by tourists to such an area in a way inconsistent
with the entry restrictions of local Aboriginal tradition, or the construction
of a dam near to such an area... [2]
Effect
2.4 Essentially the Act empowers the Commonwealth Minister to make declarations
(ss.12, 13, 14). Pursuant to s.18(2), such declarations:
...
(d) shall contain provisions for and in relation to the protection
and preservation of the area, object or objects from injury or desecration,
including, in the case of Aboriginal remains, provisions for their custody.
2.5 The Second Reading speech envisages that the Act would be used as
a last resort. On 6 June 1984 the then Minister confirmed that the Commonwealth
was not attempting to cover the legislative field in this area of heritage
protection. The Minister was referring to what became s.7(1) and which
now provides:
This Act, except Part IIA, is not intended to exclude or limit the
operation of a law of a State or Territory that is capable of operating
concurrently with this Act.
Part IIA (s.21B) provides that the Commonwealth Minister may delegate
all or any powers conferred by that Part to a State Minister.
Declarations Made
2.6 Pursuant to the Act, s.9 declarations are made by the Minister (about
sites) in emergencies; they are for periods up to 30 days or up to 60
days. Section 10 declarations can be made by the Minister (about sites)
for periods specified in the declarations. Under s.18 emergency declarations
can be made by an authorised officer for up to 48 hours duration.
2.7 As stated in the Evatt report, ATSIC files disclosed a minimum of
131 applications had been lodged under the Act in respect of 99 areas.
Of those ss.9, 10 and 18 applications, 16 resulted in declarations:
s.9: 11 declarations (in 5 cases);
s.10: 4 declarations; and
s.18: 1 declaration.
This is a very low rate of declarations from the applications lodged.
Notably, the Hindmarsh Island Bridge declaration was made pursuant to
s.10.
Judicial Consideration
2.8 Of the four s.10 declarations, three have been challenged successfully,
including that for Hindmarsh Island. In 1992 the then Minister requested
a s.10 report for the Old Swan Brewery site in Perth. The Minister made
a s.10 declaration which was subsequently revoked. Although further applications
were made to the Commonwealth Minister, he declined to make declarations
under either ss.9 or 10. Subsequently Wilcox J of the Federal Court ordered
the Minister to reconsider the issuing of a s.10 declaration. The then
Minister, however, maintained his original decision and the development
proceeded without any declaration under the Act.
2.9
So far only one s.10 declaration has been successful in protecting Aboriginal
heritage. In May 1992 the Minister made a s.10 declaration to halt for
twenty years the construction of a dam on the Todd River (Junction Waterhole).
Although the Northern Territory Government sought unsuccessfully to secure
compensation from the Commonwealth, no litigation followed. [3]
2.10
It is most important to note that to date no s.10 declaration has withstood
judicial review. Obversely, judicial review has not ensured the issuing
of a determination where the court considered that a reconsideration of
the Minister's refusal was desirable. The only extant s.10 declaration
is one that has not been challenged at law. Crucially, where there has
been determined opposition from a State or Territory government, no site
has ever been protected pursuant to the Act. This fact appears to run
counter to the Minister's Second Reading speech on 6 June 1984: while
the Act would be used as a measure of last resort, it was expected to
be employed to ensure site protection against State or Territory wishes.
2.11 While the protection of sites has not been secured under the Act
in the face of government opposition in the courts, the Act may nevertheless
have had an effect by encouraging negotiated agreements concerning site
use; potential resort to the use of the Act may in numerous instances
have encouraged a government decision tolerable to indigenous interests.
By its nature this is a matter on which it is difficult to find evidence,
but the possibility of the persuasive power of the Act's potential invocation
cannot be dismissed.
2.12 Of course, this is not to suggest that indigenous concern
is a determining factor in most cases where it is one of the issues. At
Annex 7, the Evatt report has detailed case studies some of which demonstrate
that that is clearly not so.
Summary
2.13 Only one s.10 declaration continues; it has not been exposed to
judicial review. Whenever s.10 declarations have been opposed at law,
they have not survived.
Footnotes
[1] Reproduced as Annex II of the Evatt Report,
p.241.
[2] ibid.
[3] Evatt Report, p.306.
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