Minority Report

Minority Report

Chapter 1

Introduction

1.1 Indigenous heritage protection is a matter of profound significance for all indigenous people. And government has a clear responsibility to provide adequate protection.Regrettably, and as a consequence of varying factors from case to case, indigenous heritage in Australia has not always received the protection that it deserves.

1.2 1.3 Of similar concern is the fact that indigenous people have been inconvenienced, if not alienated, by the statutory processes that have prevailed. For these reasons, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 requires amendment, if not repeal and replacement.

1.4 While the existing legislation is in need of reform, indigenous people are concerned that the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 may not protect their interests even as well as the (defective) 1984 Act. In its submission, ATSIC [1] has expressed the concern that the Bill must not represent a diminution of the effective level of protection afforded indigenous heritage under the existing framework of State and Commonwealth legislation.This is the dominating principle of this Minority report to the Committee's twelfth report. Crucially, if the standard of protection for indigenous heritage is to be maintained at least to the standard of the 1984 Act, indigenous people need to retain the right to make applications to the Commonwealth pursuant to legislation of last resort. Despite the Minister's assurances to the Committee at a public hearing on 11 May, this is not the case.

1.5 1.6 In his evidence the Minister (Senator the Hon John Herron) suggested that the Bill was consistent with the 1984 Act in regard to legislation of last resort:

    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. [2]

1.7 The Bill, however, 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. For whatever reasons, where States and Territories are not accredited under the Bill, access to the Commonwealth would be available. Nevertheless, and as the Minister confirmed:

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. [3]

1.8 Now, it would be expected that the States and Territories will achieve accreditation. The Hon Elizabeth Evatt advised the Committee that, with very minimal action on the part of the States, they will achieve accreditation. [4] In such circumstances, and as the Minister has confirmed, the regime that would be put in place by the Bill would not provide legislation of last resort except upon a `national interest' criterion. And on that issue, the Committee has been advised by Mr Dodson, Director of the Indigenous Law Centre of the University of New South Wales:

    ... if the onus is upon the applicant to prove the national interest, that is going to be impossible unless the national government says the national interest is the protection of areas and objects ... how the hell are you going to get in the door? [5]

1.9 The Minority emphasises the point entailed jointly by evidence from Ms Elizabeth Evatt, Professor Garth Nettheim [6] and Mr Mick Dodson, that:

  • the combination of an inadequate accreditation regime;
  • together with a `national interest' criterion for submitting heritage protection applications to the Commonwealth for accredited jurisdictions; entails
  • that, in practice, the Bill would establish a heritage protection regime that could not be used as a last resort in the overwhelming majority of cases.

1.10 The Minority notes that this argument refutes any suggestion that the Bill represents legislation of last resort. On these grounds alone, the Bill is unacceptable. Further, and as this report argues, the Committee's eleventh and twelfth reports are in contradiction on this matter.

Footnotes

[1] Submission HA11(a) p.24.

[2] Evidence, p.NT137.

[3] Evidence, p.NT137.

[4] Evidence, p.NT183.

[5] Evidence, pp.NT206, 207.

[6] Evidence, p.NT200.