Minority Report
Chapter 2
Legislation of Last Resort
The Committee's Eleventh Report
Basis of the Report
2.1 This Committee conducted an inquiry into the current legislation
concerning indigenous heritage protection and reported to Parliament on
2 April 1998.
2.2 In examining the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984, the Committee noted that the Act was intended as legislation
of last resort. This had been confirmed by the Minister, Senator the Hon
Susan Ryan, in her Second Reading speech when introducing the Bill on
6 June 1984.
2.3 It is imperative to note that in its eleventh report, which inquired
into this legislation, the Committee accepted that it was desirable to
retain legislation of last resort for indigenous heritage protection.
Paragraphs 4.9 to 4.12, paragraph 4.45 and recommendations 1 and 2 confirm
that position. At paragraph 4.45 the Committee expressed this very clearly:
The Committee accepts the need both for legislation of last resort, and
an accreditation regime. (emphasis added)
2.4 Unmistakably, then, the Committee's eleventh report was premised
on the proposition that legislation of last resort was desirable. The
Chair of the Committee even emphasised this fact in his tabling speech
for the eleventh report in the House of Representatives on 2 April 1998:
... there continues to be a need for Commonwealth legislation concerning
indigenous heritage protection and such legislation should be provided
as a statute of last resort. [1] (emphasis added)
The Committee's Recommendations
2.5 The recommendations of the Committee's eleventh report relied on
an acceptance of the notion of legislation of last resort. The first two
recommendations are expressed in that way, each using the term `legislation
of last resort'.
The Minority Report
2.6 Non-Government members of the Committee issued a Minority Report
concerning the inquiry into the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984. The Minority Report concluded that the Committee
report's recommendations would substantially weaken protection of indigenous
heritage, reflecting insensitivity to the laws, culture and beliefs of
Australia's indigenous peoples.
2.7 Accordingly, the Minority Report made nine recommendations. Importantly,
however, the Minority Report also advocated legislation of last resort
for the protection of indigenous heritage. The first recommendation supported
that judgement:
That the Commonwealth should retain a direct role in ensuring the ongoing
protection of indigenous heritage under this Act. (emphasis added)
The Committee's Twelfth Report
2.8 Subsequent to its eleventh report, the Committee examined the Government's
proposed legislation, the Aboriginal and Torres Strait Islander Heritage
Protection Bill 1998, for its twelfth report.
Rationale
2.9 The Committee itself has explained that the rationale for this report
was whether the Committee should depart from its eleventh report's recommendations.
Its judgement (para 4.3) is:
... the Committee has not received advice that would encourage it to
abandon its previous conclusions and recommendations. (emphasis added)
Submissions
2.10 Indeed, far from receiving advice contrary to its eleventh report
recommendations, the Committee received evidence in support of them in
regard to legislation of last resort. 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. [2]
Further, Professor Garth Nettheim of the University of New South Wales
confirmed:
... 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. [3] (emphasis
added )
2.11 Significantly, the Victorian Government presented evidence in favour
of legislation of last resort. Mr Stewart Simmons, acting Manager, Planning
and Development Branch of Aboriginal Affairs Victoria, confirmed:
... If things failed here at state level, from the point of view of Aboriginal
people, there was always recourse to the Commonwealth. ... I think that
is certainly a model that has been successful here in Victoria. Had the
state heritage protection regime been less effective, the Aboriginal people
of Victoria would still have had that clear avenue of resort to the Commonwealth.
... I do not think that we found any great difficulty in the existence
of that avenue of last resort to the Commonwealth if things were perceived
to be failing to operate successfully to protect the Aboriginal heritage
of Victoria. [4]
2.12 ATSIC has also commented on the last resort character of the Act.
In its submission [5] to this inquiry ATSIC
noted that the Act was intended to provide a mechanism of last resort
to allow the Commonwealth Minister to intervene where State and Territory
laws did not provide effective protection:
From an indigenous perspective, the Act provided an appeal mechanism
where applications for protection had been rejected, or where applications
to review decisions to remove existing protection had been unsuccessful.
Either way, it was understood that, while states and territories would
retain primary responsibility for indigenous heritage, the Commonwealth
Government had an ongoing role in the field of indigenous heritage protection,
consistent with its international obligations and `constitutional responsibility'.
[6]
2.13 In its submission, ATSIC concluded that the Government's proposed
accreditation process, the minimum standards and `national interest' limitation
would substantially reduce Commonwealth involvement in the protection
of indigenous heritage:
The result is that, despite its professed commitment to maintaining the
Act as a mechanism of last resort, the Commonwealth Government is undermining
the role of the Heritage Protection Act in fulfilling its constitutional
and international responsibilities. [7]
2.14 The Minority accepts this view.
Footnotes
[1] House of Representatives Hansard, 2 April
1998, p.P1645.
[2] Evidence, p.NT183.
[3] Evidence, p.NT199.
[4] Evidence, p.NT30.
[5] Submission HA11(a), p.11.
[6] Submission HA11(a), p.11.
[7] Submission HA11(a), p.17.
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