Monday, 27 November 2006
Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005
The proposed amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act contained in the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 are useful and important in shoring up the legislative arrangements concerning the import and export of protected cultural material. These amendments will ensure that such valuable exchange of cultural artefacts as currently takes place between Australia and the rest of the world can continue without fear of conflict such as that which arose in 2004 between Museum Victoria and the Dja Dja Wurrung people over the importation of artefacts which the Dja Dja Wurrung subsequently claimed ownership of. As we know, the court rejected the Djadja Wurrung people’s claim to these objects, establishing a legal precedent which these amendments will further solidify by exempting artefacts imported under a section 12 certificate from claim under the Aboriginal and Torres Strait Islander Heritage Protection Act.
The removal of part IIA from the act is also a useful step, as it will bring cohesiveness of legislation throughout the country, with Victoria falling into line with the rest of the states and the Commonwealth then being able to better fulfil its designated role as a body of last resort, to be called upon only when state and territory laws are not deemed adequate to protect important sites and artefacts. However, these amendments represent only cosmetic changes to an act which is deeply flawed in many ways and which is in need of far greater revision if we are truly to take seriously the conservation and preservation of our Indigenous heritage.
The blueprint for how we could best go about this has been in existence for as long as this government has been in power. In 1996 Justice Elizabeth Evatt’s report laid bare this act’s flaws and provided an extensive list of recommendations which, had they been implemented, would have led to more comprehensive protection for Indigenous lands and artefacts today. It would have removed many of the obstacles which currently face the Indigenous community when they seek protection under this act. Predictably, however, the government has chosen not to act on these recommendations. The Evatt report lists four primary areas of concern, not one of which is in any way addressed by these amendments. These are:
- The uncertainty and delays caused by a system where the interaction between Commonwealth and State/Territory processes are not clearly defined—a situation which creates confusion over how applications for protection are to be handled without infringing on the rights and powers of the States;
- A lack of transparency and openness which gives no assurance that all parties are given fair and equal treatment, leaving the Minister’s supposedly binding decisions open to legal challenge;
- The order of the protection application process, which means that Indigenous communities can only apply for protection for lands after development or planning proposals have been already approved, not while they are still being considered; and
- A most regrettable lack of Indigenous involvement in the entire decision-making process.
As well as identifying the act’s central weaknesses, the Evatt report provides practical and pertinent recommendations as to how these can be addressed. It is simply beyond belief that the government should have in its possession viable solutions to these important problems and yet still do nothing to address them.
In the first instance, the Evatt report calls for the setting up of a national body to monitor the management and conservation of our Indigenous heritage at all levels—local, state and federal. While the Commonwealth would continue to occupy its role as a body of final appeal, this national body would ensure better understanding and cooperation between the different legislative bodies, thus doing away with much of the confusion and uncertainty which currently characterises relations between the states and the Commonwealth on these issues.
The second recommendation, and one which is particularly relevant to the current subsections 16 and 24 amendments, concerns disclosure of information. At present, Indigenous people can be required to provide information which is considered sensitive within their communities, and for which there may be penalties for disclosure, in order to obtain the protection of the act. While Labor supports the removal of sections requiring the disclosure of sensitive information for the purposes of part IIA of the act, the fact remains that the act will still require Indigenous people to disclose a range of information concerning the location, significance and purpose of sites and artefacts which are considered sacred and not for public disclosure in order to gain any measure of protection from the act.
The third recommendation in the report calls for a range of reforms to broaden the various state legislation to bring it into line with Commonwealth standards, including the accreditation of more Indigenous bodies to represent their communities on these issues, and minimum standards of protection to be offered by the states. I will not waste the House’s time by listing each of these specific reforms in detail, as the report is publicly available for anyone who seeks to become better informed on this issue. Let me state, however, that at present there is often a wide gulf between the protections afforded by the states and those deemed appropriate by the Commonwealth, and bridging this gulf would go a long way to ensuring that the states can effectively deal with these issues without needing the Commonwealth’s final judgement. Finally, Justice Evatt’s report states:
The question whether an area or site should be considered an area or site of particular significance according to Aboriginal tradition should be regarded as a subjective issue to be determined on the basis of an assessment of the degree of intensity of belief and feeling of Aboriginal people about that area or site and its significance.
The requirement that Indigenous communities justify their request for protection of their heritage under the act by proving some kind of ‘national interest’ is simply ridiculous. It is true that many of these sites and cultural objects will not necessarily have great significance to the non-Indigenous community, but why should this mean that they are not worthy of protection? The preservation of our Indigenous heritage and the traditions of our Indigenous people should always be in our national interest, whether or not the specific sites or objects mean anything to us individually. It should be enough for Indigenous communities to establish the significance of the site or artefact to their own communities.
Such a requirement that the Indigenous community account for themselves and their beliefs according to standards imposed by a government out of touch with Indigenous communities and interest is emblematic of its disgraceful attitude towards Australia’s Aboriginal and Torres Strait Islander populations. We are all familiar with the statistics which testify to the disadvantage of Indigenous people at every level—education, health, life span and employment. How are we to even begin to rectify these things when the government has such a fundamental lack of understanding about how best to work with Indigenous communities?
How are we to genuinely engage with this key section of our society if we insist on perpetuating a culture of exclusivity which forces Aboriginal people to speak our narrow political language or to be left out entirely? Protecting our Indigenous heritage is just part of a larger process of engagement with this country’s Indigenous peoples. By demonstrating that we too value what is sacred to Indigenous people, that we too value the preservation of our nation’s history, we would show that our commitment to involving the Indigenous community in this country’s future is much more than empty rhetoric.
Of course, this government has demonstrated neither a commitment to protecting our past nor much interest in building a viable future through the fostering of strong links between Indigenous and non-Indigenous communities. This is evident from its refusal to address the root causes of the inequality which still exists everywhere in our society—from its total lack of concern for the destruction of culturally significant sites and land, as is evident by the minute number of protection orders which have actually been issued under this act, and, of course, from its refusal to apologise to those individuals and communities who were disadvantaged in the past by the ignorant and racist policies of former governments. It is also blindingly obvious from the ludicrously outdated and paternalistic proposals which members on the other side of the House continue to come up with, including Minister Brough’s recent statement on the issue of access permits for Aboriginal lands.
It may seem that this act is concerned only with a specific, tangible aspect of Commonwealth legislation, but there is a broader issue at stake here: whether, by acknowledging the importance of our Indigenous history through the preservation of its sites and artefacts, we send a strong message to Indigenous communities that we are keen to work with them and acknowledge the central place their history and beliefs should hold in our society; or whether, as this government has consistently done in the past, we display a complete lack of concern for either the people themselves or their history by failing to protect that which is sacred to them.
In short, I see little to oppose in the present bill. As has been stated by others on this side of the House, it does away with some niggling legislative problems and simplifies the system greatly by bringing Victoria in line with the rest of the country. However, these changes are simply inadequate in addressing the real problems of this act which, as I have just outlined, are pervasive and impact upon its implementation at all levels. While I recognise the government’s initiative in taking steps to modify the act, I call upon it to be more proactive and to address the real issues here rather than simply to fiddle at the edges as it is currently doing and has been doing for a very long time now. In conclusion, having that as a basis, I urge the government to support the member for Grayndler’s amendment, which would provide for a more comprehensive set of changes to the Aboriginal and Torres Strait Islander Heritage Protection Act.