Chapter 3
Proposed Amendments to the Bill
The Committee's Eleventh Report
Recommendations
3.1 Notwithstanding the Committee's expectation expressed in its eleventh
report, it was not possible for the recommendations of the eleventh report
to be taken into account in the Bill tabled on the same day as the report.
3.2 Importantly, having received an additional 28 written submissions,
and following two days of public hearings about the Bill, the Committee
was persuaded of the soundness of its original recommendations for the
reform of national legislation concerning indigenous heritage. (Those
recommendations are reproduced at Appendix 3 of this report.) The Committee's
original recommendations are endorsed as the basis of this report.
3.3 The Committee's inquiry into the Bill, however, disclosed a number
of additional matters that need to be addressed in the Bill. The Committee
would commend these issues to the Government for consideration, and makes
recommendations concerning them for amendment of the Bill.
Continuing Issues
Legislation of Last Resort
3.4 The Committee draws attention to the fact that the Bill does not
present a comprehensive last resort function. Rather, in many significant
aspects it devolves authority to the States and Territories for indigenous
heritage protection. The Minister advised the Committee that where States
and Territories do not meet the minimum standards (and are not accredited),
access to the Commonwealth regime will be available. However:
Where the states are accredited, on the other hand, there will be a
clear delineation of responsibilities. The Commonwealth will only be
involved if national interest considerations exist and, as I
say, only where state processes have been exhausted. (emphasis added)
[1]
3.5 Mr Dodson expressed concern that indigenous heritage protection would
not be granted on this basis because judgements about the national interest
were political decisions. [2] That is, unless
indigenous people can argue for the protection of indigenous heritage
as a matter of national interest under State and Territory accredited
regimes, the Commonwealth role is not to provide a last resort function
pursuant to the Bill.
3.6 The Hon Elizabeth Evatt advised the Committee that the 1984 Act and
most recommendations for its reform have proceeded on the basis that the
Commonwealth should provide a remedy of last resort as a national responsibility.
[3] On several grounds the Committee accepts
that there is an attraction in retaining the last resort function with
the Commonwealth. This was demonstrated by evidence on 11 May 1998 from
the Indigenous Law Centre of the University of New South Wales. The Director
of the Centre, Mr Mick Dodson, expressed concern that the Commonwealth
needed to honour its constitutional obligations to indigenous people:
The bill certainly seems to be going in the opposite direction. The
approach of the present federal government, and its attitude to indigenous
affairs, is a matter of constant puzzlement for me. When you see bills
like this one come forward, which so blatantly repudiate Commonwealth
obligations to indigenous peoples of this country, it seems that the
overwhelming voice of the people in 1967 has amounted to nought. [4]
Professor Garth Nettheim from the Centre supported this view:
Likewise, the other thing which I initially needed some persuading
of, but was eventually persuaded by, was the idea of retaining the Commonwealth's
role as a backstop. That is important ... [5]
3.7 Notably, on 6 June 1984, in her Second Reading speech concerning
the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(the Act), the Minister advised that the Act would be used as a last resort.
This Committee's eleventh report was premised on the proposition that
legislation of last resort was desirable for indigenous heritage protection
(paras 4.9 to 4.12 and 4.45; and recommendations 1 and 2 refer).
3.8 In evidence to the Committee on 11 May, the Minister for Aboriginal
and Torres Strait Islander Affairs (Senator the Hon John Herron) suggested
that the Bill was consistent with the 1984 Act in this regard:
We believe the bill will bring about significant improvement in the
processes because, first of all, we are establishing a regime which
is consistent with the original intention of the 1984 act, which was
that the Commonwealth should be a forum of last resort. [6]
Blanket Protection
3.9 In its eleventh report, the Committee endorsed the concept of blanket
(or presumptive) protection. It recommended that, in order to qualify
for accreditation, State and Territory legislation would provide such
protection (see recommendation 9).
3.10 The Committee heard that the Minister, Senator the Hon John Herron,
considers that the Bill is intended to provide blanket protection. In
evidence on 11 May the following exchange took place:
CHAIR - So if anybody has concerns with regard to the effectiveness
of that minimum standard of blanket protection, it is unfounded?
Senator Herron - Yes. That does not rule out an application.
Mr Van Beurden - It is intended to apply blanket protection.
Senator Herron - Blanket protection, yes. [7]
3.11 Notably, the Minister's view is confined to the fact that the Bill
presumes that indigenous people can apply for protection of their heritage
in particular circumstances. The Committee considers that this does not
express an adequate sense of blanket protection. Most States and Territories
already provide blanket protection (eleventh report, chapter 4 refers),
and it was advocated by the Victorian Government at the Committee's public
hearing in Melbourne on 8 May 1998. Mr Stewart Simmons, acting Manager,
Planning and Development Branch of Aboriginal Affairs Victoria confirmed:
One issue which we would have liked to see included in minimum standards
[for accreditation] ... and which was certainly subject to considerable
discussion over the past several months, was the issue of blanket protection,
rather than protection on application. [8]
3.12 Mr Simmons emphasised that Victoria would have liked to see a criterion
in the minimum standards proposing that blanket protection of all Aboriginal
heritage places or objects, which fall within the definitions of the relevant
Act, should be afforded automatic protection. In Mr Simmons' submission,
without such automatic protection, legislation at State and Territory
level could provide for the nomination of individual places for registration
before they are afforded protection. [9]
3.13 Importantly, the Committee has received no evidence arguing against
blanket, or presumptive, protection of indigenous heritage.
National Interest
3.14 As has already been noted, the Committee understands that indigenous
Australians would have only limited access to the provisions of the Bill
in order to achieve Commonwealth reviews of State and Territory heritage
protection decisions.
3.15 While this issue bears on the question of legislation of last resort,
it also confirms the difficulties inherent in the Bill as a consequence
of the need to invoke `national interest' in any AR application pursuant
to clause 39. (AR applications may be made for a long term protection
order concerning areas or objects where there is an accredited heritage
protection regime in force; Bill p.3 refers.)
3.16 The Hon Elizabeth Evatt advised the Committee that:
To say that each individual order sought has to be a matter of national
interest is to misunderstand the nature of Aboriginal heritage and its
importance to individual communities, because much heritage that is
sought to be protected is heritage that is of vital significance to
local communities in different parts of Australia - matters of extreme
significance to them. [10]
3.17 In consideration of the evidence before it, the Committee accepts
that the concept of `national interest' needs to be defined in the Bill
so as to include the protection of indigenous heritage.
Accreditation
3.18 The Committee's eleventh report accepted in principle the Government's
proposal for accreditation of State and Territory arrangements (paras
4.42 and 4.45). Further, however, the Committee notes that, for an accreditation
regime to have integrity, it must entail credible standards. The Committee
has been advised that the `minimum standards' for accreditation (Bill,
p.16) are not credible. The Hon Elizabeth Evatt argued:
Yet, if you go through the accreditation standards set out in the bill,
you could say fairly confidently that, with very minimal action on the
part of the states, they will achieve accreditation or could achieve
it under this bill. Not only that, but the minimum standards for accreditation
set out in this bill, with which states and territories have to comply,
do not even match up to the standards that are set down for the procedures
to be followed if you apply to the Commonwealth for protection. [11]
3.19 The Committee accepts these views. The scheme of accreditation under
the Bill requires revision to achieve integrity for accredited regimes
and uniformity with the heritage protection criteria that would apply
to the Commonwealth.
Indigenous Involvement
3.20 The Committee is strongly supportive of the principle of meaningful
indigenous involvement in relevant decisionmaking. Recommendations 6 and
7 of the Committee's eleventh report endorsed indigenous involvement in
the registration and management of heritage sites.
3.21 The Hon Elizabeth Evatt advised the Committee that the Bill did
not provide sufficiently for indigenous involvement:
... despite recommendations that have been made in many quarters, the
bill does not provide for Aboriginal people themselves to play a role,
to have control, to be responsible for decisions concerning the protection
of their significant heritage. ... I just feel that the bill has not got
to grips with the realities of 1998, with the expectations of Aboriginal
people and, indeed, the wider community concerning the protection of significant
Aboriginal heritage. [12]
3.22 While understanding and accepting the generality of Ms Evatt's concerns,
the Committee is not convinced of the need to make indigenous appointment
to the office of Director of Indigenous Heritage Protection a statutory
requirement (Bill, p.9). As the Minister explained in evidence on 11 May,
there appears to be a number of indigenous persons suitable for appointment
but it could be unwise to restrict the appointment possibilities:
... 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 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. [13]
3.23 Further, while advocating appropriate qualifications and experience
for the Director, Mr Dodson advised the Committee that it should not be
a statutory requirement that the appointee be indigenous:
... it would be preferable that it be an Aboriginal person. The more
important point is that the position is not about the person.
...
You do not try and find the person and then tailor the position. You
do not have to do it in a great deal of detail, but use the legislation
to lock in some fundamental qualifications that a director must possess.
[14]
The Committee accepts this view.
State Committees
3.24 The Committee's recommendation 5 of its eleventh report supported
the concept of an independent administrative agency for decisions about
the significance of indigenous heritage. This was a matter to which Ms
Evatt made reference in her 1996 report, and which she reiterated in evidence
to the Committee:
There is no Aboriginal cultural heritage advisory council, as I earlier
recommended. [15]
3.25 The Committee accepts this view. It is clear that the role of the
Director of Indigenous Heritage Protection envisaged by the Bill would
be enhanced by properly resourced State and Territory committees with
adequate indigenous expertise. This should be one of the minimum standards
for accreditation.
Footnotes
[1] Evidence, p.NT137.
[2] Evidence, p.NT206.
[3] Evidence, p.NT183.
[4] Evidence, p.NT196.
[5] Evidence, p.NT199.
[6] Evidence, p.NT137.
[7] Evidence, p.NT138.
[8] Evidence, p.NT26.
[9] Evidence, p.NT26.
[10] Evidence, p.NT183.
[11] Evidence, p.NT183.
[12] Evidence, p.NT184.
[13] Evidence, p.NT134.
[14] Evidence, p.NT197.
[15] Evidence, p.NT184.
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