House debates

Monday, 27 November 2006

Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005

Second Reading

6:52 pm

Photo of Daryl MelhamDaryl Melham (Banks, Australian Labor Party) Share this | Hansard source

The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 is to amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987. When the bill was introduced, the second reading speech went through a number of matters. I do not seek to repeat those, but the general outline in the explanatory memorandum covers it. It says:

The purpose of this Bill is to amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ... in order to:

provide greater certainty to international cultural loan arrangements by ensuring that declarations made under the Act cannot act to prevent the return of objects imported temporarily to Australia with a certificate of exemption under the Protection of Movable Cultural Heritage Act 1986;
provide for the repeal of Part IIA and other provisions in the Act that only apply to places in Victoria to enable the Victorian Government to administer Aboriginal heritage protection in Victoria directly through its own legislation; and
bring the Act into line with the Legislative Instruments Act 2003 by making amendments to clarify which class of instruments contained in the Act are non-exempt legislative instruments for the purposes of the Legislative Instruments Act 2003 and, accordingly, subject to its provisions.

It is a limited amendment bill. I suppose that is where some of the general criticism arises, because the government still has not acted on its undertakings. Indeed, when I was the shadow minister in 1998 there was some toing and froing, with a new bill introduced and a number of substantive changes to the current act proposed. Some amendments in relation to heritage protection were insisted upon by the opposition. At the time, I had some things to say about the Labor Party’s approach. I will come back to that shortly. In my view, the approach that I outlined then is the approach that still should apply.

Subsequent to that, on 20 August 2003 the then Leader of the Government in the Senate, Senator Robert Hill, stated that the government recognised the shortcomings in the existing system in respect of heritage protection, that reform was long overdue and that the government was anxious to put a new and better piece of legislation in place as quickly as possible. I think that arose out of the Liberal Party policy on Aboriginal and Torres Strait Islander affairs, which was released on 14 February 1996. It is worthwhile quoting from that document, because the then opposition certainly made a lot of noise and jumped up and down about Indigenous heritage. The relevant page of the Liberal Party’s policy, in terms of background, said:

Although the Aboriginal and Torres Strait Islander Heritage Protection Act was introduced as a temporary measure over a decade ago, Labor has failed to review it.

The Labor Minister for Aboriginal and Torres Strait Islander Affairs has refused to adhere to his own responsibilities under the Act. As a consequence, the Federal Court has overturned his decisions on both the Broome Crocodile Farm and the Hindmarsh Island Bridge.

Taxpayers have paid a high cost for the Minister’s disregard of his own Act, and Indigenous heritage has suffered because of the mistrust and controversy that has surrounded his decisions, particularly in the case of Hindmarsh Island.

In criticising the Labor Minister’s failure to administer the Act correctly, the Courts have found that he failed to uphold his obligation to ensure natural justice.

In a panic response during the run up to the election in October 1995 the Minister belatedly announced his intention to review the Act.

That was the Evatt review, which subsequently reported on 21 June 1996. The coalition policy said:

In Government the Coalition will:

review the Heritage Act;
ensure that mechanisms are in place to guarantee natural justice, thereby avoiding ministerial decisions like those recently overturned by the Federal Court;
seek a meeting of State and Territory Ministers for Aboriginal Affairs to:
determine ways to ensure that traditional culture and religious beliefs are properly protected.

That is a pretty keynote commitment and goes to the heart of it. It continued:

seek a better integration of Commonwealth and States/Territories Acts so that the Commonwealth Heritage Act takes into account State/Territory processes while retaining its role as a forum of last resort; and
encourage States/Territories to review their own Acts to bring about greater consistency across Australia.

The current act is deficient. This government gave commitments before it was elected, and it gave commitments after it was elected, that it would review and upgrade the act to bring about those principles. It has not done that.

The amendment bill before us in a lot of respects is not objectionable, because it overcomes the situation of Victoria not having legislation and the Commonwealth covering the field. The Victorian government wrote to the Australian government this year to explore how the obstacle could be removed to allow proposed new Victorian cultural heritage legislation to be put in place. And that is fair enough. In relation to the other matters, it is interesting because, in effect, there have been a number of court cases about the items on loan from other institutions. On this legislation, the Bills Digest gives quite a good history and summary of the difficult and sensitive issue that arose in Victoria after the staging of an exhibition by Museum Victoria entitled Etched on Bark 1854. The amendments in schedule 1 are the result. They ensure that a section 12 certificate cannot be overridden by a declaration under the heritage protection act. The exhibition ran from 18 March 2004 to 27 June 2004. The exhibition notice stated:

The earliest surviving Aboriginal bark etchings in Australia, they are the only remaining examples of artistic work done by Kulin men from the Loddon and Murray Rivers during the nineteenth century. Two bark etchings have also been borrowed from the British Museum and the Royal Botanic Gardens, Kew.

The Bills Digest says:

The items on loan from these institutions became the subject of temporary declarations—

and I note they were temporary declarations—

under the Heritage Protection Act. The Dja Dja Wurrung Group claimed traditional ownership of the items and their return was prevented by the operation of the declarations. Museum Victoria had contractual obligations to return the items to the institutions concerned as soon as the exhibition had finished but was unable to do so. Legal proceedings were then instituted in the Federal Court by Museum Victoria and elders of the Dja Dja Wurrung People.

There was a court case. The Bills Digest continues:

The items which were the subject of the court proceeding were, as stated by Justice Ryan in his judgement, two bark etchings originating in Dja Dja Wurrung country around Boort dating to about 1954. Another bark etching dating from the 1970s in Jupagalk Country in the Lake Tyrell area and a ceremonial emu figure made from river redgum and decorated with red and white ochres. The objects were due to be returned to the British Museum and the Royal Botanic Gardens, Kew, by 30 September 2004. A number of successive emergency declarations were obtained under the Heritage Protection Act by the Dja Dja Wurrung Native Title Group. Museum Victoria took action in the Federal Court to review the decisions to make successive emergency declarations. Eight emergency declarations were made in all.

The case involved whether the inspector under the Heritage Protection Act had the power to make subsequent declarations after the first declaration in respect of the same objects after the first emergency declaration was made. The judge took the view that the inspector lacked the power to make the second and subsequent declarations. The case had the effect of removing the protective declarations that had operated on the objects.

All the legislation is doing is confirming the result of the court case. The matter was litigated, and the result determined that the second and subsequent declarations should not have been made. The legislation is unnecessary in a lot of respects. It is a decision by a single judge; it is not binding. So it would not stop subsequent applications being made. The bill before the House is designed for that instance. When museums and others are bringing in these objects, litigation cannot be commenced to stop them from going back.

The truth is that confirming what the courts have decided and not allowing anyone to bring declarations is hardly protection of Aboriginal culture and heritage; it is the reverse. It is in effect denying Aboriginal people the opportunity to go to court; it is taking away their standing to claim these cultural objects. That is a policy decision but it certainly goes against the grain of what the heritage protection act should be all about.

The then Labor government in its dying days did seek a review of the heritage protection act, which, as has been said, was supposed to be only a temporary measure. The purpose of the act was to preserve and protect from injury or desecration areas and objects that were of particular significance to Aboriginals in accordance with Aboriginal tradition. Indeed, coalition policy in 1996 recognised that. I repeat: they wanted to seek a meeting to determine ways to ensure that traditional culture and religious beliefs were properly protected. I suppose this is the criticism: the government has not acted on its pre-election and post-election commitments. The interesting thing is that not a lot of declarations have been made. I doubt that there would be many declarations made under this government or this minister, because I do not think there is a sensitivity for or an appreciation of the area of Aboriginal culture and religious beliefs for them to be properly protected.

Justice Evatt, in her report, said:

Aboriginal people consider that the Act has not protected their heritage. Few declarations have been made—

this is in 1996—

and only one is now in force. They say that the administration of the Act has given too much deference to ineffective State and Territory processes which do not recognise their role in the identification, management and protection of heritage. In some situations negotiations by the Commonwealth with the State/Territory government have resulted in arrangements being made without adequate consultation with Aboriginal people. In addition, the Act does not recognise that there are Aboriginal restrictions on information which play an important role in the protection and maintenance of their cultural heritage. The Act does not protect confidential information or respect Aboriginal spirituality and beliefs which require that confidentiality to be maintained. Its failure to deal with all aspects of heritage, including intellectual property was another subject of concern, though the Review has been unable to deal with this issue in detail ... Nor does the Act adequately recognise or provide for the involvement of Aboriginal people in negotiation and decision-making about their cultural heritage. Aboriginal people want the Act to be maintained and strengthened.

The opposition’s second reading amendment seeks to highlight that. Those are my criticisms of the minimal scope of the legislation currently before the House. It is important in this area and, indeed, in the Indigenous area as a whole that the politicisation of Aboriginal affairs ceases. It is mainly the conservative elements of our society that seek to politicise and demonise people and to play to the fear and prejudice in the general community. We are seeing that in the migration area with the fear that is being generated about people who practise the Muslim religion within our community.

When I was shadow minister in charge of Indigenous affairs for the Labor Party, I had something to say. In 1998 it was busy in relation to the heritage protection act because there was then a move by the government to bring in a new heritage act, which has not eventuated. I said that for me there were three fundamental principles that guided the Labor Party. I said:

The first was the aim of protecting indigenous heritage. We were about effective protection and transmission of what we regard as a living cultural heritage. It is fundamental to the survival of indigenous people as a distinct social group. It is an integral aspect of the way in which indigenous people’s identity is continued in the context of non-indigenous economic and social development that is often ignorant of or hostile to indigenous culture and its relationship to the land.

This was a speech I made in consideration of a Senate message and unrelated matters on 9 December 1999. I continued:

The second principle we relied upon was the Evatt report as the appropriate compromise between indigenous and development interests. We believe the Evatt report on the review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is the appropriate benchmark for the reform of Commonwealth, state and territory heritage laws. The report is the result of extensive consultations throughout Australia with indigenous and non-indigenous interests. It represents a careful compromise between development concerns and indigenous heritage protection.

I then said that the proposed amendments that we put up were based on the detailed recommendations of the Evatt report. I continued:

The third principle was the relationship between the Commonwealth, state and territory responsibilities to heritage protection. The Commonwealth government has moral, constitutional and international responsibilities to provide heritage protection. Given the reality of the states’ responsibility for land management and planning processes, we acknowledge that the states and territories have a role in relation to heritage protection; however, primary responsibility for the scope and operation of heritage laws must remain with the Commonwealth and the Commonwealth must remain a real option of last resort.

I do not make any apologies for saying that, because in my opinion the results of the 1967 referendum, which had the support of 90 per cent of the people who voted in it, gave the Commonwealth the moral and legal responsibility to protect Aboriginal people; in most instances, to protect them from the states, which for two-thirds of the last century—and this has continued—have not in many instances acted in their best interests.

I think on the face of it, from an opposition point of view, a lot of this amendment bill before the House today, as I said, is non-contentious. The irony of what I said in relation to a section of the amendment bill is that it is basically denying Aboriginal people their right to go to court and test their ability to obtain certain objects that have come to Australia. The argument rightly is that if you do not have something with certainty like that then you will not have these objects being brought to Australia for exhibition and show. I understand the policy consideration in relation to that, but the point I am making is that it would cause Aboriginal people some concern, in that this hardly comes under the banner of protecting our Aboriginal heritage if you are denying them the right to litigate.

It has been 10 years since the Evatt report was released. In effect, in this debate, I am saying that the government should not put their heads in the sand. They should come forward with a comprehensive bill—not just these amendments but at some time in the future—and act on their promises. They should act on the commitments they gave and the commitments Senator Hill gave when this legislation was being debated in the Senate. One of the reasons I do not think that will happen is that, quite frankly, I think Senator Hill was a little different to other ministers and other senior ministers in this government because he did have a level of sympathy. When you talk to Aboriginal people you hear that, in this area, he was quite sympathetic. I think the truth is that he got rolled within the Prime Minister’s office or within policy offices. (Time expired)


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