CHAPTER 2
The Bill
Second Reading Speech
2.1 The Second Reading speech on 2 April 1998 advised that the Bill comes
as a response to 'common agreement on the need for reform'. According
to the Second Reading speech the Bill would achieve a balancing of the
interests of indigenous people and other parties in relation to the protection
of indigenous heritage:
Indigenous people require that, where the integrity of such an area
is under threat, there is a means available by which they can seek protection
of that area. For the parties who are proposing to undertake an activity
that may disturb a heritage area or object, it is necessary that any
claims for protection are dealt with in a fair, transparent and timely
manner. [1]
2.2 Other objects mentioned by the Second Reading speech include clarification
of the roles of the Commonwealth, States and Territories; attempts to
resolve cases through mediation and negotiation if possible; and improving
the current system for the protection of culturally sensitive information.
[2]
2.3 The Bill also is intended as a response to the recommendation in
the Hon Elizabeth Evatt's 1996 report that the assessment of significance
and the final decision regarding protection be separated. [3]
To this end the Bill establishes a statutory office, Director of Indigenous
Heritage Protection (the Director), to advise the Minister, especially
in relation to the issue of significance. It is intended that the Director:
... will be the primary administrator of the act, and will undertake
a wide range of tasks in support of the minister who will be the final
decision maker in relation to long-term protection of areas or objects.
[4]
2.4 The Second Reading speech emphasises that one of the Bill's objectives
is to strengthen the heritage protection regimes in the States and Territories,
and to reduce the potential for confusion between the current roles and
responsibilities. The Bill provides for the accreditation of State and
Territory schemes by the Commonwealth where those schemes meet minimum
standards.
2.5 In an unaccredited State or Territory, claimants would first exhaust
all possible avenues in the State or Territory. Then an application to
the Commonwealth would be available (with the possibility of interim or
emergency protection). After an attempt to encourage negotiated settlement,
the Director of Indigenous Heritage Protection would prepare a report
on the significance of the heritage area or object in question. The Commonwealth
Minister would have the final say, but could appoint an independent review
of the report.
2.6 In an accredited regime, primary responsibility for protection would
fall to the State or Territory, but an application for Commonwealth protection
could be made where it is in the national interest. Accreditation may
be revoked by the Minister or disallowed by Parliament.
2.7 Where the Commonwealth is involved, the Bill aims to ensure 'appropriate
handling' of indigenous remains under the supervision of the Director,
and the protection of confidential indigenous information through exempting
release of such information under the Freedom of Information and Archives
legislation.
2.8 Further matters covered in the Second Reading speech include the
recognition of indigenous people as the 'main source of information' about
significance, and that States and Territories receive an incentive to
participate:
The 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,
except in cases when protection may be in the national interest. [5]
Contents of the Bill
Part 1
2.9 Part 1 of the Bill (clause 4) sets out as the main object the establishment
of procedures relating to:
- the preservation and protection of indigenous areas and objects; and
- the accreditation of State and Territory laws as accredited heritage
protection regimes.
Key definitions are outlined which generally reflect the definitions
in the current legislation (clause 5). Important terms include 'indigenous
person', 'indigenous tradition' and `significant indigenous area'.
Part 2
2.10 Part 2 establishes the position of Director of Indigenous Heritage
Protection (clause 9), describes the function of the Director (clause
10) and sets out the responsibilities and nature of the position. This
Part deals with such matters as the appointment of the Director (clause
11) and procedures for termination (clause 18). Other key matters include
the establishment of a Register of Claims for Protection by the Director
(clause 22).
Part 3
2.11 Part 3 establishes the accreditation procedures. Following application
by a State or Territory, the Minister may make a declaration to accredit
the scheme in question (clauses 24, 25). Such a declaration is disallowable
by the Parliament and the Minister must be satisfied that the scheme meets
the minimum standards for protection (clause 25).
2.12 Clause 26 sets out the minimum standards which must be met, such
as recognising indigenous persons as the primary source of information
about significance (clause 26(b)), providing protection for culturally
sensitive information (clause 26(e)) and ensuring fair treatment and effective
penalties (clause 26 (f), (g)). Clause 26 also allows for partial accreditation.
Under clause 27 the Minister is able to revoke or amend accreditation,
but only after notification of the relevant State or Territory Minister
and consideration of their response.
Part 4
2.13 This is a substantial Part of the Bill and outlines the procedures
to be followed with regards to applications for protection in both accredited
(AR) and unaccredited (UR) regimes for protection. Clauses 29 to 33 deal
with the initial processes involved in receiving and registering applications.
Applications for a long-term protection order (LPO) must be in writing
and lodged with the Director (clause 29). Clause 29 also sets out the
requirements for applications. Once the requirements were fulfilled, the
application would be registered and the Minister notified (clause 30).
Applications could be rejected if, for example, all relevant State or
Territory remedies were not pursued or if the application is considered
vexatious (clauses 31, 32).
2.14 Division 2 of Part 4 sets out the procedures and requirements regarding
UR applications. Mediation must be attempted, but if this fails the Bill
allows for a report to be made by the Director as to significance and
threat (clauses 34, 35 and 37). The Bill also allows for the report to
be independently reviewed (clause 36). Clause 38 deals with the circumstances
in which a Minister may make an LPO.
2.15 Division 3 of Part 4 sets out the procedures relating to an AR application.
For the Commonwealth to intervene here it must be in the national interest
(clause 39) and this Part foresees consultations occurring between the
relevant Ministers at Commonwealth and State or Territory levels. Clause
40 allows for the Minister to adopt State or Territory findings regarding
significance or threat. If this does not occur the Bill provides for the
Minister to commission a report from the Director on these issues and
also the potential impact of an LPO on pecuniary and proprietary interests
(clause 41). As with UR applications, mediation and negotiation are to
be facilitated at an early stage (clause 42). Equally, an independent
review of the Director's report may be required (clause 43) and the Minister
is empowered to make an LPO in circumstances envisaged in clause 45.
2.16 Division 4 of Part 4 deals with the content, notification and effect
of LPOs. Of particular note is that the order must set out the period
of its duration and the subject of protection (clause 46). Clause 47 outlines
the requirement that all relevant parties are notified of the Minister's
decision, and states when an LPO will come into effect.
2.17 Division 5 of Part 4 deals with mediation and negotiation under
the Bill. 'Core parties' are to be encouraged to negotiate (clause 48);
the participation of the relevant State or Territory may be appropriate
according to the Explanatory Memorandum. Negotiation is voluntary (clause
53). Clause 49 gives the Director a central role in facilitating negotiation
and mediation, but also allows for the appointment of a mediator. Negotiation
must be conducted within three months, but this period may be extended
(clause 50). If an agreement is reached it should be registered by the
Director, if such an agreement is consistent with the aims of the Bill
(clauses 51, 54). A registered agreement will be enforceable in contract
(clause 52).
2.18 Division 6 of Part 4 is concerned with the making of reports under
the Bill. Reports of the Director are covered by clause 55 and the independent
reviewer's guidelines are set out in clause 56. A Director must give notice
prior to the making of a report and invite relevant representations to
be made; the findings of a State or Territory as to significance and threat
may be adopted by the Director (clause 55). In making reports indigenous
people are to be the primary source of information concerning significance
(clause 57) and reasons are to be given (clause 61). Affected parties
will be unable to view claims made by others (clause 59). A Director has
three months to present a report and the Minister must give an independent
reviewer a time limit (clause 60).
2.19 Division 7 of Part 4 concerns emergency and interim protection orders
(EPO and IPO). Pursuant to clause 62 the Minister (or delegate) will be
able to make an emergency protection order in relation to an area or object
for a period of up to seven days; this may be extended by the Minister
for a period up to seven more days. Applications will not be required
for EPOs, effectively allowing oral applications. Clause 63 sets out the
circumstances for the making and revoking of IPOs. And clause 64 is concerned
with the notification provisions for EPOs and IPOs.
2.20 Division 8 of Part 4 is concerned with the negotiation and mediation
processes should multiple applications arise.
Part 5
2.21 Part 5 of the Bill contains miscellaneous provisions concerning
discovery and disposal of human remains, offences concerning protection
orders, the administrative review of certain decisions, the power of courts,
and the granting of injunctions. Part 5 also covers compensation for the
acquisition of property, legal or financial assistance, delegation of
the Minister's powers and the making of regulations.
Schedules 1 and 2
2.22 The Bill concludes with two schedules. Schedule 1 provides for the
repeal of the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984. It also sets out transitional provisions in regard to Part IIA
of the Act (applying to Victoria).
2.23 Schedule 2 would amend the Archives Act 1983 and the Freedom of
Information Act 1982.
Footnotes
[1] House of Representatives Daily Hansard,
2 April 1998, p.P1697.
[2] ibid.
[3] Review of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 Report by Hon Elizabeth Evatt
AC, Recommendation 8.5, p.xxvii.
[4] House of Representatives Daily Hansard,
2 April 1998, p.P1697.
[5] House of Representatives Daily Hansard,
2 April 1998, p.P1698.
Top
|