House debates

Monday, 27 November 2006

Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005

Second Reading

Debate resumed from 2 November, on motion by Mr Hunt:

That this bill be now read a second time.

upon which Mr Albanese moved by way of amendment:

That all words after “That” be omitted with a view to substituting the following words: “while not declining to give the bill a second reading, the House:

notes that on 20 August 2003, then Leader of the Government in the Senate, Senator Robert Hill, stated in relation to Indigenous heritage protection that the Government recognised the shortcomings in the existing system, that reform was long overdue and that the Government was anxious to have a new and better piece of legislation put in place as quickly as possible;
registers its concern that the Howard Government has failed to address the shortcomings in indigenous heritage protection;
expresses its concern that the Howard Government has failed to act on the recommendations of the 1996 Evatt Inquiry into the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
notes that it is now 10 years since the Evatt Inquiry reported, and calls for a comprehensive review of Indigenous heritage protection; and
calls on the Government to support the inclusion of a sunset exemption provision in the bill”.

6:17 pm

Photo of Peter GarrettPeter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | | Hansard source

I rise to support the second reading amendment moved by the member for Grayndler and to note in relation to this Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 that there seems to be very little legislation that comes through the House on Indigenous matters that is not tainted by extreme ideology or narrow wedge politics. This legislation is as good an example as any that we have seen recently.

This bill has been too long in coming. It has arrived in an incomplete form, which is a very great pity considering the importance of securing adequate and consistent recognition of Aboriginal and Torres Strait Islander heritage and its recognition henceforth. Notwithstanding the deficiencies in the legislation, Labor does support the general principles of the bill. Labor does support efforts to improve existing legislation, including to give more certainty to cultural loan arrangements and to provide for the Victorian government to administer its own Aboriginal heritage protection register. But it is clear that the government has not adequately addressed all the shortcomings that were a part of the Aboriginal and Torres Strait Islander Heritage Protection Act.

Minister Hill originally stated that reform was long overdue—and it was—but this bill fails to deliver reform which significantly improves and enhances the protection of Indigenous heritage. That is of real concern to us on this side of the House. In August 2003, Minister Hill stated:

We are anxious to have a new and better piece of legislation put in place as quickly as possible.

Three years later, judging by the bill in front of us, the government has not fulfilled its commitment to a ‘better piece of legislation’.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was originally intended as a stopgap measure. The Evatt inquiry reported on the act in 1996. I will come to that in a moment, but it has been noted that the legislation was inadequate to deal with the national approach required for the Commonwealth’s heritage obligations. In fact, this act has been described as the ‘act of last resort’. A Senate minority report also considered the bill and pointed out that, of the 200 applications since 1984, only 22 have been declared for recognition and inclusion on the list and only one during the term of the Howard government. So, just as reconciliation lies dead in the water under this government, so, regrettably, does a genuine commitment to recognising and applying the appropriate legislative protective and recognition framework that Indigenous heritage deserves.

The failure by the government to ensure practical implementation of the provisions via listing means that the protection act is virtually defunct legislation. If there are so few sites that come into province and are applied for by this government, then the heritage protection act has become virtually defunct in the life of the Howard government. The Senate minority report on the legislation and its record actually argued that it appears to have been the intention of the Commonwealth to confine its statutory involvement in Indigenous issues to the EPBC Act while ignoring the ATSIHP Act.

The effect of this is that two implications apply for Indigenous heritage. The first is that, at the time when the Senate minority report was brought down, the EPBC Act was clearly much narrower in its scope, and the proposed amended act that subsequently came into the parliament is even narrower as a consequence. It is confined, for example, to matters of international significance, of national significance and of places located in Commonwealth areas. There will be many instances of places of Indigenous heritage that do not fall within that narrow purview. Those limitations that I have just described do not apply to the ATSIHP Act.

The second is that, as has been noted in the House previously, the Howard government has administered the national and Commonwealth heritage lists in a way that, in fact, makes it difficult for Indigenous sites to be included. The stringent criteria that seem to have been applied by the Howard government preclude identifying and including an Indigenous site as worthy unless it also has significance to the wider community. This way of reading the principle of inclusion under this legislation has meant that Aboriginal sites which are significant and important for their Aboriginal context, history and meaning have not come onto the list.

In July 2004, the Minister for the Environment and Heritage, Senator Ian Campbell, flagged a number of sites for priority consideration for inclusion on the National Heritage List. Those sites he listed included Castlemaine Diggings, the South Australian old and new parliament houses, the Port Arthur Historic Site, Mawson’s Huts, Point Cook, Point Nepean—all of those sites worthy of inclusion—the Dampier Archipelago art site, the Brewarrina fish traps and the Wave Hill walk-off site. At present the list contains all of the abovementioned sites—in other words, those items that I have just identified—with the exception of the Wave Hill walk-off site, the Damper Archipelago art site on the Burrup Peninsula in Western Australia and Point Cook.

Three months ago, on 22 August, was the 40th anniversary of the noted Wave Hill walk-off. This is a historic event with great significance for the Indigenous population as well as for the wider community. The Wave Hill walk-off site was identified by the minister previously. In 1966 Vincent Lingiari and others in that community had protested against the unfair treatment and conditions faced by Aboriginal workers on the Vestey cattle station in the Northern Territory. They were not satisfied with the conditions at the time, and they walked off the land and camped in Wattie Creek. Parliament noted the Wave Hill walk-off earlier this year and, of course, the member for Lingiari’s electorate is named after Vincent Lingiari.

The events at Wave Hill changed the face of Australia—there is no question about that—and were instrumental in the ensuing historic campaign that saw the introduction of land rights laws in the Northern Territory. These were land rights laws which were vehemently opposed by conservative political forces and conservative political parties both at the federal level and at the territory level. Notwithstanding that, the events at Wave Hill were of significant historic occasion; they were of real historic importance. So it was particularly disappointing that, earlier this year, the environment minister failed to mark the important anniversary of the Wave Hill walk-off by, in fact, listing Wave Hill and the site on the National Heritage List—even though two years earlier he had announced that its inclusion would be given priority consideration. It could be argued that, whatever political viewpoint one brings to assessing history, the Wave Hill site in and of itself is a site deserving of recognition. Indeed, it is hard to think of a place in the Top End with a more extraordinary history.

In his speech in the Senate on 11 May 2006, my colleague Senator Carr posed the question to the government:

Will the 40th anniversary of the actual walk-off itself, coming up on 22 August, come and go without any acknowledgement by the government?

Senator Carr was correct. He and many of us on this side of the House constantly identify and unfortunately have to remind the public that, no, when it comes to matters of genuine Indigenous significance in the Aboriginal history of this country, this government simply does not want to pay any attention at all.

The government does itself no credit by playing politics in this way. The Prime Minister is on the record as decrying what he calls the ‘black armband view of history’. That is a very strongly contested assertion here. But what we have is actually worse—that is, a government using its legislative authority on the basis of its ideological prejudice to simply pretend that history does not exist, to deny that something has any Aboriginal significance and to not provide it with the recognition that it ought to have under Commonwealth legislation. The Northern Territory government has provided for appropriate recognition of the Wave Hill site. It is a site that is visited by tourists. It is a site that has significant and ongoing history. But it is a site that involved unions and Aboriginal people fighting for their rights and, as a consequence, the government does not see fit to give it recognition.

The other site flagged for priority consideration is the Dampier Archipelago art site, which is on the Burrup Peninsula in Western Australia. I know that some speakers have made reference to this site. It is an extraordinary site in that it houses an estimated one million petroglyphs, including Australia’s biggest collection of standing stones and the largest example of rock carvings in the world. There are some genuine planning challenges afoot regarding this site because it is intended that there be significant industrial activity on Burrup. But a number of significant concerns have been raised by Indigenous groups who are seeking the guarantee of protection of these petroglyphs. The archaeological and heritage community and I think the wider community, as it becomes aware of the significance of the Dampier Archipelago art collection, are also concerned about the possibility of further destruction or removal of rock art from the site.

I do note calls by the member for Fremantle and the member for Pearce, amongst others, to call upon Woodside, the proponent for the development on the site, to reconsider its plans to build a pipeline and processing plant on two sites on the Burrup Peninsula. I also note that the joint North West Shelf partners—that is, BP, Shell, BHP Billiton, Chevron and Japan Australia LNG—have all indicated a willingness to work together to consider whether there may be a location for the proposed development by Woodside which does not significantly impact on the heritage and the rock art on the site. I certainly would encourage discussions between Woodside and the joint partners, because I think that, in actual fact, this particular area of rock art is of immense national and international significance and is a great heritage for the nation. It is important for Indigenous people that we recognise the worth of their narrative drawings and their rock art but also, given the scope and expanse of the rock art on the Burrup Peninsula, recognise that it has international significance. It would be important in that context—given that the Dampier art located on the Burrup Peninsula could be identified by the minister as necessary to be recognised in this way and placed on the National Heritage List—that he would actually look to do that.

Regrettably, the Minister for the Environment and Heritage is not fulfilling his responsibilities under the existing legislation. Two or three days ago he announced that he now intends to delay consideration of the inclusion of this site on the list for a year or more—and the proposed amendments that have travelled through this House on the EPBC Act actually give him even greater scope to ignore the heritage significance of the rock art on the Burrup Peninsula. I think subsequent generations will look extremely poorly at a minister exercising his responsibilities in such a deficient way.

Just to reinforce how important the Dampier Archipelago is in terms of the rock engravings and rock art there, there has been an Australian Heritage Commission assessment process that has looked in some detail at the natural and cultural values of the art and the work that is on the Burrup Peninsula. That assessment is in the hands of the minister for the environment, and it does identify the Dampier Archipelago as one of the richest and most exciting, as well as densest, concentrations of rock engravings in the world. That is a very significant identification by the Australian Heritage Commission. I note that former Minister Barnett in Western Australia has also said that we need to look again at the importance of conserving a rock art precinct of this kind.

There are three nominations identified by the Australian Heritage Commission. The first is for the Dampier rock art precinct, which comprises the largest concentration of petroglyphs, or rock carvings, in the world and the largest number of megaliths, or stone arrangements, in Australia. It says that ‘this quintessentially Australian and entirely unique cultural property is an utterly sacred place and should be to all Australians’. The second nomination notes the precinct has ‘significance for the whole Australian nation because it is the largest Indigenous cultural property within Australia’. The third nomination is of the Burrup Peninsula and associated islands and coastal strip, which comprise unique landscapes of granite and granitosite rocks with the world’s largest and prolific collections of Aboriginal engravings and artefacts. The stakes are terribly high that we as a nation ensure the best possible protection of an area of significance such as this.

I note in passing that the minister, whilst delaying any decision to consider the nomination that I have just described from the Australian Heritage Commission, has also in effect ruled out considering the listing for the Aboriginal tent embassy in the front of this parliament, despite its crucial historical role in the land rights campaigns of the past and its ongoing role as a meeting place and, hopefully, in the future, a possible cultural centre for Aboriginal people from Australia and worldwide.

What is needed is for legislation that seeks to identify and adequately protect places of Indigenous significance to be brought through by this government, and this legislation does not fulfill this task. Heritage protection is too important to become hostage to culture wars or short-term political reactions that are challenging for the government. In the case of the Burrup Peninsula there is a powerful argument that its important heritage and cultural values need to be adequately and resolutely protected. We note the failure of the government to fulfil its earlier commitments to consult with Aboriginal and Torres Strait Islander communities on the broad amendments in this legislation. I support the member for Grayndler’s second reading amendment, and I call on the government to ensure the adequate protection of the Dampier rock art site already identified by the Australian Heritage Commission assessment processes. (Time expired)

6:34 pm

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

I am particularly pleased to have the opportunity of speaking on the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005. As a nation we must from time to time remind ourselves of the unique heritage we have here through the culture of our Indigenous people. In a world that, through the advances of technology, communication, travel and the like, seems to be becoming smaller, it is not difficult to lose track of the wonderful things that we have right here at home, and Indigenous objects that have cultural and artistic significance are among them.

I have to say that I do enjoy collecting Indigenous art. I cannot pretend that I have any particularly expensive art in my collection, some of which hangs in my electorate office and some of which hangs at home. I have one friend—Ken Hinds, who happens to be the Fisher FEC chairman—who is a dedicated collector of Indigenous art. Some of the works by Possum and others that he has in his collection are most incredible. By collecting Indigenous art in this way, Mr Hinds not only recognises the uniqueness of this art to Australia but also protects this art for the enjoyment of future generations. Mr Hinds often allows his art to be placed on public display so that others are able to enjoy the beauty of Indigenous art of a very high quality. I might add that Mr Hinds has a most impressive art collection—not merely an Indigenous art collection. He has collected for many years and has possibly one of the most significant collections anywhere in Australia.

Indigenous art is a form of art that is not only beautiful but historical, meaningful and spiritual. The Australian government is committed to the protection of Australia’s Indigenous heritage and the many artefacts, sacred sites and traditions that it encompasses. By adopting these principles, we are also able to spread the word of our Indigenous history and help to educate our future generations. In fact, legislative protections for Indigenous art and artefacts will also directly aid and promote the protection of Indigenous culture, heritage and tradition, which of course are part of Australia’s history and part of Australia today.

The Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 being debated today aims to update the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which was introduced predominantly as a legislative means of safeguarding places and objects that have significance to our Indigenous people, and for various related purposes. This bill, for example, further strengthens protections for Indigenous artefacts, in that it specifically provides for improving the safeguards for those artefacts which are legitimately held by overseas entities but which are lent back to Australia for display or exhibition. This bill allows them in due course to be able to leave the country to return to their owners hassle free. The absence of adequate safeguards for the safe return of these items has in the past been a stumbling block to having the overseas owners of Indigenous artefacts allow them to come to Australia so that they can be admired by Australians and those living here. This change being made to the legislation will mean that overseas owners of Indigenous art will be confident in lending these beautiful objects for display in Australia knowing that they will not have any problem in having them returned.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 sets out in detail the strict guidelines for dealings with Aboriginal artefacts, sacred sites, Aboriginal remains and so on. It outlines the definitions by which we can determine, for example, whether a sacred site has been desecrated, as well as definitions for sacred sites, Indigenous traditions and customs, and artefacts. The aid organisation World Vision, through its website, noted:

Contemporary Indigenous painting has emerged as one of the most significant international art movements of the late 20th century. Interest in Australian Indigenous art continues to rise, with demands from major museums and galleries across the globe.

It goes on to note that earlier this year—that is, in June—the work of eight artists of Indigenous heritage featured in the major installation in the spectacular new national museum in Paris, France and that significant sale price records have been set recently for Indigenous art. The same can be said for Indigenous artefacts such as spears and boomerangs. They are uniquely Australian and therefore command attention the world over. It is only fitting that we here in Australia be given reasonable and sensible access to those items housed overseas.

This situation has arisen as a consequence of the growing importance of Australia’s Indigenous artefacts and art overseas as well as here at home. It is in fact an encouraging development because it has come about only because of the ever-increasing international interest in Australian Indigenous art and culture. The bill also removes a portion of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 that had the unintended consequence of restricting the Victorian government’s ability to make its own changes to Indigenous protections in its state. The Victorian government had requested that change and, in the interest of sensible and effective legislative management of Indigenous heritage, those sections have been removed. This means that Victoria will be treated the same as other jurisdictions in Australia. This bill supports improvements to the protection and promotion of Indigenous heritage, and I am particularly pleased to commend it to the House.

6:41 pm

Photo of Kelly HoareKelly Hoare (Charlton, Australian Labor Party) Share this | | Hansard source

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.

Photo of Mrs Bronwyn BishopMrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | | Hansard source

I remind the House that this is a wide-ranging debate and I think I have been reasonably tolerant in the latitude that I have permitted, but I remind speakers that their speeches should at least have some connection to the bill and to the subject matter of the bill. I call the honourable member for Banks.

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)

7:12 pm

Photo of Jennie GeorgeJennie George (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Environment and Heritage) Share this | | Hansard source

I will begin by saying that the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 is very disappointing because it is very narrow in its scope and does not address the very important broader Indigenous heritage issues that this nation so desperately needs to come to terms with. The government had promised to better protect Indigenous heritage, but if the bill before us today is the end result of that commitment then it really fails the test because it proposes only very limited—albeit uncontroversial—changes. It certainly does not uphold the commitments made by Senator Robert Hill, which my colleague has referred to, when back in 2003 Senator Hill told the Senate:

We recognise the shortcomings in the existing system. Reform of that is long overdue ... We are anxious to have a new and better piece of legislation put in place as quickly as possible.

We certainly concurred with the words of the Senate leader at that time, yet we see a very limited response to the claims that were made about the inadequacy of Indigenous heritage protection and the need to get new legislation into parliament as quickly as possible.

The legislation before us was referred to a Senate committee. It was asked to address three specific issues: firstly, whether the amendments were adequate to protect Indigenous heritage; secondly, whether the amendments addressed concerns of Indigenous Australians; and, thirdly, whether the amendments reflected changes recommended by the Evatt report. Again, my colleague the member for Banks has made extensive reference to the recommendations made by Justice Elizabeth Evatt in that very important inquiry. But what we have seen since 1996 is the government’s failure to properly meet its obligations to protect and conserve Indigenous heritage. In fact, this government has drastically reduced its engagement in Indigenous heritage issues, passing the buck, as it so often does, to the state governments.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was only ever a temporary stopgap measure. It was described in Justice Evatt’s report as an act of ‘last resort’, intended to fill the gaps in state and territory heritage protection. In fact, the act, with all its limitations, has been little used. With the advent of the Environment Protection and Biodiversity Conservation Act, it appears that it is the intention of the Commonwealth to confine its statutory involvement in Indigenous heritage issues to the EPBC Act while ignoring the broader scope that could potentially be offered by the Aboriginal and Torres Strait Islander Heritage Protection Act.

If properly administered and implemented, the Aboriginal and Torres Strait Islander Heritage Protection Act has a far greater capacity to protect significant Indigenous heritage, as the EPBC Act confines the statutory role of the Commonwealth to matters of national and international significance. The EPBC Act, in my view, is totally ineffective in dealing with the protection of Indigenous heritage values at a local level. I will show this to be the case as I outline in more detail some of the difficulties that we have had in preserving a significant site of Indigenous heritage value in my electorate.

When the heritage amendments to the EPBC Act were debated in 2003, Senator Hill gave repeated assurances that the government was carrying out a consultation process with Indigenous communities on an amendment bill to the Aboriginal and Torres Strait Islander Heritage Protection Act. He said that this would ensure that the Commonwealth continued to play an active role in the protection of Indigenous heritage sites that did not fall within the scope of the EPBC Act. It seems to me that it is the case that no such consultations of any substance ever took place. In relation to the National Heritage List—or what will remain of it following debate on the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 that was introduced recently into this chamber—it appears that a place of significance to a particular Indigenous community will never be eligible for inclusion on the list unless it can establish that the place is important to the broader Australian community and very stringent criteria will apply. In my view, the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill fails the first test that the Senate was asked to consider: do the amendments proposed in the bill protect Indigenous heritage in its broader sense? I think they fail to do that.

In terms of the second reference, which was to address the concerns of Indigenous Australians, the minority Senate report states:

We are concerned that the timing of the ... inquiry ... was such that we were unable to illicit [sic] substantive Indigenous community submissions or enable adequate community consultation to properly ascertain the level and substance of community concern regarding this Bill.

It does not bode very well for meeting the second test—does it address the concerns of Indigenous Australians?—when the time limits were so short and there was never adequate or extensive consultation with the people most affected and most interested in the outcome of this legislation.

The third thing the Senate was asked to consider was whether the amendments reflect the changes recommended in the report of Justice Evatt. I again quote the minority Senate report and its conclusions:

... it is fairly clear that these amendments as a whole do not address the report’s recommendations in a substantive fashion and that there is no evidence of any other efforts on behalf of government to address the report’s major recommendations.

I guess that extensive report, dating back to 1996, is just gathering dust on the bookshelf. The people who were involved in the preparation of the most comprehensive recommendations going to the heart of Indigenous heritage protection would be extremely disappointed to see the lack of commitment by this government on many—if not all—of the proposals recommended by Justice Evatt. Within the scope of Evatt’s recommendations were the following suggestions:

  • The integration of cultural heritage assessment into the planning and development process at the earliest possible stage.

…            …            …

  • That decisions on a site are an issue for Indigenous people to determine on the basis of an assessment of the intensity of belief and feeling of significance.
  • Decisions should be made on the basis of information provided by relevant Indigenous communities or individuals and that any anthropological information be provided with their consent
  • That a voluntary mediation procedure should be developed to encourage agreement making, within an adequate timeframe to allow proper consultation and negotiation with the site protected during the process.

Even if those proposals arising out of the Evatt report had been implemented—and there has been a long time for this government to make a commitment to the implementation of those recommendations—I believe a lot of very important historical and cultural sites of significance would have been preserved in perpetuity for the benefit of this nation. Had Justice Evatt’s recommendations been accepted, we could have taken some pride as a nation in our efforts to collectively preserve our unique and special heritage. Instead we inflict continuing trauma on many Indigenous communities by our lack of respect for and protection of our very valuable heritage.

I recently had an email from a woman a long way away—from Esperance—whom I had not met, but she put this argument to me very eloquently. She wrote specifically about the possible destruction of ancient rock art at the Burrup Peninsula:

I remember being appalled when I heard of the Taliban’s destruction of the great statues to Buddha in Afghanistan. Although I had never heard of the statues before and probably would never have travelled to Afghanistan to see them had they not been destroyed, I felt their loss as one of humanity’s great treasures: something that belongs to the heritage of all of us as human beings, like the Pyramids of Giza, Stonehenge, Angkor Wat, Great Zimbabwe, the Lascaux and Altamira cave paintings.

I felt a similar shock at the loss of human heritage when it appeared that looters had stolen the archaeological treasures of the ancient Sumerians, Babylonians and Assyrians during the 2003 invasion of Iraq, and was immensely relieved to discover that the museum staff had simply taken the treasures home to protect them from destruction and looting. The ancient heritage of Iraq is the heritage of all civilisations. We in Australia have been bequeathed an important site of ancient human art on the Burrup Peninsula far far older than anything from ancient Sumer, Greece or Egypt.

She concludes:

It is our duty as custodians of this part of the world to ensure that such a treasure is preserved for all humanity, for it is the heritage of all humanity.

I thought she expressed that particularly well and poignantly.

I thought I would use the time I have in discussion of the limitations of this bill to outline a recent issue that has arisen in my local community and one which has finally ended in a successful outcome. But I want, for the record, to include details of some of the correspondence I have had with different ministers about this piece of land, just to show the limitations and inadequacies of the current approach to the protection of Indigenous heritage that is local and site specific.

That decision relates to land that was up for sale—Defence land which adjoins Hill 60 in Port Kembla, in my electorate of Throsby. The decision to put that land up for sale has been reversed but it is important, as I said earlier, to record in Hansard the arguments that were advanced by this government initially for the sale of the land. Hill 60 has a particular significance for the Illawarra’s Indigenous community. They all united in their condemnation of the proposed sale of the parcel of land adjoining Hill 60, which I should note had already been granted heritage listing by the New South Wales government.

It seems to me—and I think I will convince you in what I have to say—that the government’s final position outlined to me in a letter of 2 November is totally at odds with the earlier justification for disposal of the land. It is clear to me that the community campaign forced this government into making a political decision rather the one that should have been based on the intrinsic merit of the Indigenous heritage properties of the land in question. The original decision to dispose of the land in question shows the obvious limitations and weaknesses in the protection of Indigenous heritage.

At the ‘Save Our Hill’ rally on Sunday, 6 August this year, Uncle Reuben Brown, one of our esteemed local elders, referred to the community’s longstanding connection with this land when he said:

On this land here is where my wife’s mother and my great grandmother’s little sister lived in a tin shed. This is where they lived until about 1942 when the army moved them out, but that doesn’t change the fact that over there is where our ancestors have been buried. They want to sell the land from under us. We’ve got to do something to make sure that it doesn’t happen.

As their local federal member and as a person with a longstanding interest in and involvement with Indigenous communities, I agreed wholeheartedly with the justice of their case and pursued their claims with several government ministers and, I have to acknowledge, with the support of the local Liberal senator based in Wollongong. I urged the Minister for the Environment and Heritage to intervene in terms of his authority—or what I thought his authority was—under federal legislation. I also called on the Minister for Families, Community Services and Indigenous Affairs, in a genuine act of practical reconciliation, to have the Defence land incorporated into the current Hill 60 heritage listing by the New South Wales government. Let me, for the record, indicate the responses I received. The first one I had was from Senator Sandy Macdonald, in his capacity as Parliamentary Secretary to the Minister for Defence. First of all, he apologised for the fact that he had not notified me, as the local member, that it was their intention to sell surplus Defence property on the open market. He said:

... due to an administrative oversight, this property was included with the sale of another in an adjoining electorate and the letter was inadvertently sent to the wrong Federal Member.

That caused me some consternation from the beginning. But what was of particularly great concern to me was this claim. He said:

I note your request that I intervene and stop the sale of the land and undertake further discussions with community representatives. I also note your view that the Defence site should remain in public ownership and be used as a focal point in commemoration of the region’s Indigenous history. The defence site is adjacent to the much larger Hill 60 site, which is owned by Council and includes a lookout and picnic area.

I emphasise the next part of his letter:

I am advised the due diligence studies conducted on the Defence site identified no significant heritage, environmental or Indigenous values. Therefore, recognition of Indigenous values would seem to rest more appropriately at the Hill 60 site.

I was amazed that the government had failed to properly understand the significance of this site not just to our Indigenous peoples but to our local community. The due diligence studies referred to were never made publicly available.

On 7 September the environment minister also responded to me in much the same way. I cannot quote it all but let me just say that, in one paragraph of his letter, he says:

In order to determine what values are present at the site, the Department of Defence engaged a consultant to undertake heritage and environmental assessments of the land. The assessments found that, despite the State heritage listing, the area adjacent to Hill 60 contained no significant heritage or environmental values, although some low-level Indigenous values of only limited significance were reported.

So there you are. I took the matter up with two ministers who I thought would have authority to do something about this matter. But, lo and behold, finally we got the decision that should have been the response in the first place. In a letter of 2 November from Sandy Macdonald, parliamentary secretary, suddenly environmental and heritage values are found to exist. The letter said:

I write further to my letter dated 9 August 2006 regarding surplus Defence land ... As you are aware, no compliant tenders were received when the property was placed on the open market ...

Throughout the marketing campaign it became apparent that the local community perceives the Defence site as having similar environmental and heritage values to that of the adjacent Hill 60 Park and lookout area.

He goes on to outline a very sensible proposal, which has been accepted by the community, that the site be offered to the Wollongong City Council under concessional priority sale arrangements.

I have to ask: what would have happened had our local community not risen in revolt against this proposal to sell the surplus Defence land? If there had not been the community concern, would that land now be in the hands of developers? Is this the way that this government treats intrinsic Indigenous heritage values? Is this the way they are to be assessed and determined—that is, the political pressure that you wield determines whether or not the government finally accepts the merit of Indigenous heritage values? The whole process is very ad hoc. The final decision, although welcomed by the community, is, in my view, a political one that was made in order to pacify community opposition rather than a decision that should have been made on the merits of the case for the retention of the land in public ownership from the start of this campaign in our local community.

So that, just as a little cameo, shows the total inadequacy of the processes that pertain to the preservation of important Indigenous heritage in our country. We cannot allow the process to be determined purely on the basis of political response and counter-response. If the community had not rallied so wonderfully behind the Indigenous community that land might well have ended up in developer hands and been sold, and with it another part of our Indigenous heritage and history would have been lost forever.

It is for those reasons I support the second reading amendment moved by my colleague, the member for Grayndler, which registers our concern at this government’s failure to address many shortcomings in Indigenous heritage protection, as my local case study highlights. We note that it is now 10 years since the Evatt inquiry report and that the government has failed to act on many of its significant recommendations. We believe it is time for a comprehensive review of Indigenous heritage protection along the lines promised by Senator Robert Hill on behalf of this government back in August 2003.

Photo of Mrs Bronwyn BishopMrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | | Hansard source

I remind members that I have allowed a fairly free-ranging debate, taking full advantage of the extent of the second reading amendment moved as well, but there is a need to connect speeches to the bill.

7:32 pm

Photo of Martin FergusonMartin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | | Hansard source

In rising this evening to address the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 I note, as I have said on many occasions over the last 12 months, that this debate has been a long time coming. It draws further attention to the fact that now more than ever we have a government that is tardy when it comes to legislation, lacks a commitment to the legislative process and has no respect for the parliament or the people of Australia, whom we represent. It is a very strong statement about the arrogance of this government. I say that because it is now more than three years since then Senator Hill, who was also a minister, gave undertakings that the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill would be ‘brought into the Senate as quickly as possible’.

Senator Hill has long departed the Senate and I must say that, if they were in a hurry with this bill, I would hate to see them if they were not in a hurry. It is three years since the minister gave that undertaking. By any reasonable person’s definition three years is hardly as quickly as possible, especially as these amendments before the chair this evening do not make any great drafting demands. They are simply about giving greater certainty to international cultural loan arrangements, and so they should be. They bring administration of heritage protection in Victoria in line with other states, which is an appropriate decision. They also provide consistency and clarity with respect to the Legislative Instruments Act 2003.

This bill does absolutely nothing to more properly protect the Indigenous heritage of our country. That is why there is significant criticism by the opposition of the bill before the chair this evening. I note that the bill does nothing to address the broad weaknesses in Indigenous heritage protection under the Howard government. The bill certainly falls short of addressing the issues canvassed by the 1996 Evatt inquiry into the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Many of my colleagues on the opposition side of the House have already addressed the range of issues in their contributions to this debate. Those that particularly interest and concern me relate to the establishment of independent Indigenous cultural heritage bodies run by Indigenous people as representatives of their communities. I am a longstanding and great believer in promoting self-determination for Indigenous communities. On many occasions in this House I have talked about the need for economic empowerment to replace the cycle of welfare dependency and despair that permeates many of our remote Aboriginal communities. I have talked about the need for real investment by both the government and the private sector in Indigenous communities so as to ensure we do something substantial about the creation of real jobs and real education and training opportunities.

I remind the House yet again this evening that one in two Australians living in Northern Australia will be of Indigenous descent by 2020. These people are the future workforce for Northern Australia. Just think about it: the pastoral industry, agriculture, forest plantation, mining and tourism, just to refer to a few key employment opportunities for our Indigenous communities between now and 2020.

I am, therefore, pleased to report to the House that I now see many companies recognising this and appropriately embracing the potential of Australia’s Indigenous citizens. Just as economic self-determination is important for Indigenous communities, so too is self-determination when it comes to the protection of Indigenous heritage. I intend to address a few of these issues this evening because it is about challenging some people who like to make speeches about these issues but, when it comes down to giving the Indigenous communities some real power, they like to run away from their responsibilities. It is all about all talk and no action.

Therefore, I remind the House that I have said on a number of occasions that for far too long special interest groups—antinuclear campaigners, antimining campaigners, antiforestry campaigners—have used Indigenous communities to peddle their own short-term political gains based on ideology. That poses a very serious question which is central to this debate: what have Indigenous communities got in return? Certainly not jobs, certainly not better education for Indigenous kids, certainly not better health, certainly not better training and certainly not better resources for cultural knowledge systems or cultural heritage protection. The simple fact is that Indigenous empowerment is not in the interest of some of these so-called special interest groups—they are about paternalism. Predictably, when I raised this issue in September this year in another debate in the House, Friends of the Earth wrote to the Australian Financial Review and have since written many letters to many newspapers attacking my position. I say ‘predictably’ because the fact is that Indigenous communities are awake to the Friends of the Earth and their green colleagues. This is a threat to their political base. It is about time we nailed this debate for what it is. It is not about Indigenous empowerment and self-determination; it is about the political base and the political future of some environmental NGOs and the Greens.

In that context, I simply refer to the debate about this bill in the Senate. The House needs to look no further than the Greens amendment to this bill, which interestingly proposes an independent review of the repeal of part IIA of the Aboriginal heritage act. The Greens in that debate have nominated one member of a four-member committee to represent the Indigenous community—one member! The other three are so-called experts in various aspects of Indigenous heritage. They know better than the Indigenous community! The fact is that the Greens want left-wing ideologues in control, not Indigenous people, clearly flying in the face of the Evatt recommendations for Indigenous control of their own heritage.

So on the one hand you have the coalition, which does not care about Indigenous heritage at all. This is evident, I believe, from the tardiness in introducing this bill and its failure to admit any serious shortcomings in Indigenous heritage protection today. We also have to be concerned about the other extreme of this debate. There is the government on the one hand, but let us talk about the other extreme. You have the Greens and some environmental NGOs who care about Indigenous heritage only if they can use it for their own short-term political gain to stop mining or forestry or to shut down industry and take away people’s jobs and Indigenous opportunities of the future.

The green movement never let the facts stand in the way of a good story that they like to peddle from time to time. I go to the letter from the Friends of the Earth to the Financial Review, which talks about:

... the indefensible and racist situation where the Roxby Downs uranium mine in South Australia is exempt from the Aboriginal Heritage Protection Act.

Let us deal with a few facts. That statement is simply not true. As I said, never let the truth or honesty come between the Greens and their friends, the environmental NGOs, and a good story. The truth is that Roxby Downs, or Olympic Dam, is subject to indenture legislation put in place in 1982 to clarify the rights, responsibilities and obligations of both the operators and the government. That is about sovereign risk and security of investment, which is about making sure that Australia remains a place that is attractive for investment because of security and safety for investors. Except as specifically provided for in this indenture, and this is the key to it—it is a very transparent indenture—the operations are subject to all the requirements of all the laws of South Australia. At the time of the finalisation of the Roxby Downs (Indenture Ratification) Act, the Aboriginal Heritage Act 1979 had recently been enacted by the parliament, but a different act was already in the process of formulation. This act did not come into force for another six years. It became the Aboriginal Heritage Act 1988. It was therefore logical for the government and the operators to agree that, in order to provide the project with a reasonable level of regulatory certainty to ensure the investments, the 1979 act would apply to the original project area defined in the indenture as the Stuart Shelf area.

Let us go on and deal with a few other facts. The fact is that Olympic Dam is subject to not one but two state Aboriginal heritage acts. One covers the mine lease and the wider Stuart Shelf area. The other covers areas beyond that on which there is infrastructure, such as powerlines and water pipelines. The fact that Olympic Dam is covered under the two acts makes no practical difference to how Aboriginal heritage is managed but it is protected in all areas of operation and, more importantly, BHP, which now owns Olympic Dam, is absolutely committed to this process.

Before the last expansion of Olympic Dam in the mid-1990s, the mine operator, then Western Mining, signed an agreement with native title claimants to deal with both native title and heritage issues. As a result, Aboriginal heritage has been managed in a manner supported by the claimants. It might not have the support of Friends of the Earth and its fellow travellers, but it has enjoyed the support of the Indigenous communities.

I go to the current proposed expansion process. To facilitate the current proposed expansion, I am sure that BHP will negotiate in good faith towards a new agreement with the claimant groups, and so they ought to, because that is what they are seeking to do as a company Australia-wide. I simply say that in my opinion BHP Billiton has a good track record in this area. One of the recent projects it was involved in which went to heritage work was work undertaken near Onslow, Western Australia, for the Pilbara liquefied natural gas project—something very important to Australia, given its export potential.

The work undertaken provided local Indigenous people with archaeological field skills and it also recorded valuable information for the Western Australian heritage database. It also created a new opportunity for the Indigenous community, which they grabbed with both hands. Only a few of the Indigenous people had been involved in something like this before—I suppose we are not surprised at that. So this opportunity was a worthwhile learning exchange between them and archaeologists, as well as an opportunity to establish a strong relationship between the LNG project team and the local Indigenous community.

So what is the result? Previously, the Aboriginal community had not been exposed to these opportunities, but as a result of this some of the younger Aboriginal people got new opportunities in life. It was also an opportunity for the elders through this process to teach the younger generation about their history. A film crew accompanied a team for part of this time so that the Pilbara experience can be used for future induction and cultural awareness training of construction crews—a win-win for everyone.

While we are talking about the Pilbara, I note the comments by my colleague the member for Kingsford Smith about Woodside’s proposed Pluto project on the Burrup Peninsula. Like BHP, which is in fact one of the North West Shelf venture partners, Woodside has a longstanding record of heritage protection on the Burrup Peninsula, where it has operated LNG and domestic gas facilities for some 22 years on behalf of the North West Shelf venture. The Pluto project will be Woodside’s first attempt at going it alone in the LNG business—a mammoth undertaking for a home-grown Australian company distributing profits to predominantly Australian owners. This project, if it proceeds, will provide employment for thousands of people and boost the Australian economy by some $18 billion. It will bring in $8 billion in taxes for schools, hospitals, roads, public services and infrastructure. But it is also a very important project in itself.

Interestingly, this is another project that, broadly speaking, has the support of Indigenous communities but not the support of their white cousins in Sydney, Perth and Melbourne. Certainly, the traditional owners have signed an agreement with Western Australia that supports the industrial zoning of the Pluto sites. It is important to remember that 27,000 hectares of the Burrup rock art precinct is already set aside for conservation. The Pluto development will occupy just a tiny fraction—one per cent—of this area. There are about one million engravings and thousands of cultural heritage sites in the whole precinct, yet only 115 engravings fall within the Pluto development area.

Let us deal with a few facts yet again. It is the intention of Woodside to avoid or relocate all of them. It is my view that the competition between industry and cultural heritage should not be addressed through an argument over whether to list or not to list. The real issue is to recognise that we can have multiple land use values of listed places that should be properly managed through the use of regulation, statutory management plans and conditions on developments. There is no doubt in my mind that these places with really special environmental and heritage values—and in my view the Burrup Peninsula is one of these—should be properly listed and recognised for those values. Any fair-minded person would support such a proposition. But there is also no doubt in my mind that, if those places have other very important values—for example, nationally significant economic and strategic values; and, again, that is my view when it comes to the Burrup Peninsula—there is a need to find a way to protect those values as well.

We as a community can have multiple land use values and we can manage them properly so that heritage is protected but sustainable economic growth that underpins our national wealth can still occur. It is time to stop the scaremongering and tell the truth. It is time for industry and environmental stakeholders to move closer to the middle, to accept listing but also development, and to concentrate on management practice that best protects heritage values and allows sustainable development to occur in the interests of the nation’s continuing wealth.

Indigenous communities need heritage protection but they also need wealth creation and the opportunities that flow from such wealth creation so as to overcome the huge social problems that confront them as communities—something that we like to talk about in the inner city suburbs of Sydney, Melbourne, Brisbane and every other capital city of Australia, but something most of those people who make the speeches do very little to actually progress.

At a time when Australia faces a severe skill shortage and desperately needs more people participating in the workforce, it is an indictment of this government that Indigenous employment lags so far behind mainstream levels of participation. Indigenous employment, education and training, and business and community development opportunities should be key considerations in all mining approval and management plans. It is also a responsibility of industry itself and of all levels of government in Australia to progress this objective.

Today some estimates put the cost to government of Indigenous unemployment at $1 billion per annum. The cost to the Australian economy in lost productive output associated with Indigenous unemployment is estimated at another $3 billion and related social welfare expenditure and forgone tax revenue is a further $3 billion. It is, therefore, smart from a government point of view to work out this partnership with the private sector, because it involves serious revenue issues confronting the current government.

As I have said in this House before, not only is it shameful in the 21st century that a modern developed and wealthy society tolerates the level of Indigenous unemployment and social disadvantage that this country tolerates but also it is costing Australia $7 billion a year. What a challenge—to actually do something on the ground and to do something for revenue so that we have more money to spend on other priorities.

Notwithstanding the unforgivable human cost, imagine the financial cost to Australia of Indigenous unemployment by 2020 if we fail to properly address the incredible social disadvantage faced by these people. Aboriginal heritage protection is a vital part of the framework for rebuilding self-reliant and proud Indigenous communities, but it must go hand in hand with greater action to provide education, training and jobs for the future. Sadly, this bill does very little for the advancement of Indigenous people or the protection of their heritage. In that context I simply say that not only is the government to be chastised but some of the environmental NGOs and the Greens should be chastised for their lack of understanding of the real issues confronting the Australian community with respect to these challenges. I commend the second reading amendment to the House.

7:52 pm

Photo of Peter AndrenPeter Andren (Calare, Independent) Share this | | Hansard source

I recognise the political imperatives of the former speaker, the member for Batman, but I strongly disagree with his assessment of the multiple land use options—for Burrup Peninsula in particular. It is an invidious thing to have to pass heritage protection legislation that ensures that rare and important artefacts originally expropriated from Indigenous Australians be returned to those overseas galleries and museums that claim ownership of them. The Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 says more about the value we give to museums and exhibitions than it does about our regard for in situ sites of Indigenous significance across this country.

As is the case the world over, so many objects from ancient worlds and cultures have been swindled and stolen from peoples who did not have the power to stop that swindling and stealing. We now have sites that are stolen with little or no regard for Indigenous heritage. Over time, these precious items that we are talking about in this specific legislation—these records of cultures—have become the legal property of overseas institutions, often by dint of those institutions belonging to the countries from which the plunderers and collectors came or by those institutions having more money than the descendants of the original owners could ever dream of having. The famous nonreturn of the Elgin Marbles is but one case in point.

However, the sad reality is that, unless those lending institutions have a legal guarantee that such lent objects will be returned, those countries of origin, including Australia, will lose any opportunity to see those items again. This was clearly demonstrated two years ago when descendants of the Dja Dja Wurrung people in Victoria sought the preservation and compulsory acquisition of bark etchings and a ceremonial carving made by their forebears. These rare and important objects were lent by British institutions to Museum Victoria. While the resulting court case dissolved the section 10 emergency declarations and the items were subsequently returned to Britain, this case was used overseas as an example of why art galleries and museums throughout the world should consider the risks involved in lending art overseas, notwithstanding the lack of moral claim to that art. In fact, the cultural and historical significance of these artefacts to the traditional owners is far beyond the Western value attached to their rarity and history, and this should be recognised and acted upon.

However, the sad consequence is that an estimated 40,000 other Indigenous objects and human remains held in overseas institutions may never be seen in Australia again should Australia refuse to guarantee the return of such lent objects. Consequently, many collectors, museums and art galleries would be reluctant to lend objects and artefacts to other countries of origin also.

This bill then provides for a certificate under section 12 of the Aboriginal and Torres Strait Islander Heritage Act allowing a person to import Australian protected objects for temporary purposes and, subsequently, to export those objects, even where an emergency declaration seeking to protect or preserve areas or objects is issued. It would seem in this scenario that we have no choice but to entrust the protection of these precious objects to those overseas institutions and to continue to strongly support efforts to repatriate rare and sacred items. I also sincerely hope that the Victorian heritage legislation that will replace the protections of part IIA of the current act—the section repealed in this bill—will offer effective and responsive protection of places and objects of an Indigenous cultural significance in that state. Certainly, the enactment of its own Indigenous heritage protection laws in Victoria is consistent with other states’ enactment of protection laws.

While the issue of nationally consistent and effective protection for Australian heritage—both Indigenous and, more recently, non-Indigenous heritage—is a moot point, we do have a very real ability to ensure the protection of places and objects that are in Australia, some of which are ancient indeed. It all boils down to political will. Indeed, our Prime Minister was determined to save the Kokoda Trail—some 60 years old—in Papua New Guinea from the ravages of gold mining that is said to be worth over $1 billion to the PNG economy. This is certainly a show of commitment to our very recent history.

But consider this: 60,000 years ago, people had already migrated thousands of kilometres from the north of what was then greater Australia and were living in New South Wales, leaving their footprints in the mud of Willandra Lakes over tens of thousands of years. Rightly, Willandra Lakes is a declared world heritage area and it cannot be lifted up and exported for the edification of museum visitors around the world. By comparison, 60,000 years ago, man had not even reached northern America and in Europe they were just starting to live alongside Neanderthals. The world was in the middle of an unstable series of ice ages that had started a thaw and rising sea levels, which took another 40,000-odd years to stabilise. It was 30,000 years ago that the last Neanderthals died out. It was 10,000 to 15,000 years ago that the slow melt of the ice age saw the extinction of sabre tooth cats and mammoths, the rise of settled communities with agriculture and recorded story telling and myth. It was only in the last several thousand years that those great ancient civilisations appeared. In this context, those objects and places that record those very first peoples in Australia are very ancient and very precious indeed.

Most people in this parliament would agree with the imperative to protect the pyramids and ancient objects of Egypt and with the value of preserving the remains of antiquity thousands of years old. Most people would have recoiled in horror at the Taliban’s destruction of the centuries-old Buddhas of Afghanistan. Some may be aware that the trade in antiquities, both legal and often illegal, is estimated to be worth many billions every year. Yet, at Burrup Peninsula in the Dampier Archipelago in Western Australia, part of the world’s largest and most important concentration of ancient rock carvings face deliberate destruction or removal because of the refusal to relocate further development of an ill-conceived industrial complex to a nearby site. This is a place where the very first people most probably reached Australia and where they have inscribed in the rocks hundreds of thousands of images that record the extraordinary history of this amazing continent and the continuity of human use over at least 20,000 to 30,000 years. I say at least 20,000 years; it is likely far more, because 60,000 years ago people were already leaving their traces in New South Wales thousands of kilometres away.

So, at the Dampier Archipelago, strewn amongst the rock outcrops, rock piles and boulder slopes of the whole landscape, are ancient campsites, quarries, shell middens, the world’s largest collection of standing stones, artefacts and a bewildering array of rock art that has been estimated to contain up to a million images—areas so crowded with them that images merely the age of the pyramids or the great Etruscan or Maya civilisations have been superimposed over more ancient ones, some of them estimated to be the oldest images in Australia. This is a place of extraordinary testimony to long extinct fauna, to the changing landscape as the ice age thawed and oceans slowly rose and to the continuous use by people over tens of thousands of years.

You would think this place is worthy of absolutely irrefutable preservation. But here we had in this parliament recently changes to the EPBC Act that can make the protection of that in the short term highly dubious because of the delays built into that process and the fact that it relies on one minister, after all these tens of thousands of years, to make a decision on this process. And that is the cynicism with which the EPBC Act was amended at the very time that Woodside were in this parliament lobbying. I listened to them with great interest when they spoke about their commitment. I listened to the member for Batman speak about the many jobs, the need for the export earnings and the fact that we have to look at ways of employing Indigenous communities—all of that. But we are, after all, talking about an item of absolutely irreplaceable World Heritage value. And yet we have not had a state government, for almost 40 years now, or a federal government prepared to begin the process of listening on a proper state and national level to preserve those inestimable values that are on that peninsula.

A few days ago I learnt that there has been an offer made by the North West Shelf Venture partners. BHP Billiton, to their credit, have moved their operations further to the south to avoid the damage that would inevitably be caused to this ancient site. An offer has been made to move the Pluto operations to a site to the north of their presently planned area. But does the Western Australian government seem impressed? I think not. The hysterical utterings that are coming out of their minister and the government in general show no will at all to offer the sort of protection that is desperately needed to protect this World Heritage site. The former speaker, the member for Batman, has left the chamber, but this is not about metropolitan Australians promoting a cafe latte cause, as the member for Batman might suggest; it is about serious neglect over many years that is only now being addressed through the actions of concerned people.

In a 2000 Four Corners program Woodside confirmed that when it developed its massive North West Shelf gas plant those ‘sites and engravings’ that could not be removed were ‘recorded and then destroyed’, with ‘a company spokesperson saying some carvings were probably used as base for the plant’. The Department of the Environment and Heritage’s own Australian heritage database claims ‘survey, salvage and relocation’ of the images constituted adoption of ‘world’s best practice’. Well, let others be the judge of that.

By comparison, think about the Palaeolithic Lascaux Cave paintings in France, where French governments have invested millions to protect the site, building replicas of two cave halls to ensure carbon dioxide from the collective breath of the visitors does not further degrade these precious paintings. Compare that with the Burrup Peninsula and the Dampier Archipelago, where the emissions of industry are causing acidic rain that is eating away at the surface of these very sites. We cannot lift up these sites and move them to a gallery on the other side of the world where they may be protected and looked after and not claimed back, perhaps, as the intent of this bill suggests. We cannot do that.

We have in situ perhaps the greatest gallery on the face of this planet, and here we have a debate over the worth of that vis-a-vis the undoubted worth of exports, jobs and everything else that come from the North West Shelf. But, hey, we have options; we have alternatives; we have another way. What we do not have is the will of short-term governments that do not think beyond the election cycle of the next three years. We think only of the process that will minimise the disturbance to the industrial complex, not maximise the protection of this world important site.

It is absolutely imperative that the federal minister looks at the nomination of this internationally recognised place. He has had it since 2004. For him to wait months before listing it allows industry to buy from the government time that allows further destruction of this site. This Indigenous heritage site I believe is an exemplar of the extent to which we have devalued Indigenous heritage in this country.

This federal act will still apply as a last resort when significant places or objects cannot be adequately protected by state or territory laws, but the sad Lake Condah and Framlingham Forest affair in Victoria, where that state’s upper house in the 1980s shamefully supported non-Indigenous landholder interests over Indigenous people’s legitimate heritage claims, could well be repeated elsewhere in Australia. Burrup is at the absolute extreme of that argument.

There is a huge gap in the recording and protection of Indigenous sites across Australia, with local government particularly remiss in its care and consideration of significant sites, which are often regarded as substantially less significant than development priorities. While we have opportunities in the areas of Australia with traditional occupation—even those fractured by, as in the Burrup case, the noncontinuity of people’s occupation of that area—to intervene before it is too late, in the southern and south-eastern portion of the continent Aboriginal people’s identity and their connection to that land has been, as was quoted in the Yorta Yorta case, washed away by the tide of colonialisation.

Sites have been discovered recently in my own electorate—modern Indigenous sites of camps made during the Depression years. The member for Batman mentioned the employment disadvantage of Indigenous people. The 50 per cent unemployment rates were tenfold then—if you can have 500 per cent unemployment. I am talking about the period when Indigenous peoples were living in camps built around the central west. It seems that has absolutely no significance to non-Indigenous peoples. It has huge significance to more recent families—to the mobs that have resettled and to other language groups that have moved into the more settled areas—and yet we have a total disregard for it. At one site in recent days—wait for it—the gravelling of walkways through a former campsite was done with gravel extracted from a quarry that itself contained artefacts that were not recognised and not known about until they were discovered by the land council in the area. This is the sort of disregard, almost contempt by negligence, that I am talking about—probably not towards the sorts of artefacts that we are talking about in this bill, but I am talking about a state of mind, an attitude, that can be traced right through to the Burrup example. I doubt that this federal legislation, despite its claims that it will apply as a last resort, will afford any protection to those areas of Indigenous heritage regarded as less significant than development priorities in the more settled areas of south-east Australia.

I note the second reading amendment, and I particularly support paragraphs (4) and (5), which calls on the government to support the inclusion of a sunset exemption provision in this bill, because the bill as it stands is inadequate. It does not address those areas that were drawn to the attention of the government of the day in the 1996 Evatt inquiry.

8:11 pm

Photo of Brendan O'ConnorBrendan O'Connor (Gorton, Australian Labor Party) Share this | | Hansard source

I rise to support the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 and the second reading amendment moved by the member for Grayndler. I say at the outset that there are some significant problems with this bill that the amendment seeks to rectify. As the member for Fraser on 10 October in this debate said:

It is a piece of legislation with a gestation period that has been sufficiently long to have produced several elephants, but it does not produce even a mouse.

I think that metaphorically sums up the problem with the bill. It is not comprehensive, it does not fulfil the undertakings given by then senator Robert Hill to the opposition in 2003 and it fails, therefore, to properly protect in a comprehensive manner the Indigenous heritage of this nation.

This bill to amend the Aboriginal and Torres Strait Islander Heritage Protection Act emerges out of a tangled mess of inaction and half-hearted attempts to deal with long recognised problems associated with heritage protection in this country. Unfortunately, rather than definitively cleaning up this mess, it goes halfway and leaves the rest of the work undone.

One of the principal purposes of this legislation is to reform the Aboriginal and Torres Strait Islander Heritage Protection Act to provide greater certainty to cultural institutions when arranging loans by ensuring that declarations made under the act cannot prevent the return of objects transported temporarily to Australia with a certificate of exemption. This legislation enables a person who wants to import a protected article for an exhibition, for example, to apply to the Minister for the Environment and Heritage for a certificate authorising the object’s exportation. The provisions allow museums and other cultural institutions in Australia to obtain objects under contractual and other loan arrangements for temporary exhibition in Australia. Such arrangements are difficult to negotiate unless overseas lending institutions have the protection of a certificate authorising the return of the objects.

This difficult and sensitive issue arose recently in Victoria after the staging of an exhibition of 19th century bark paintings by Museum Victoria. The works were extraordinarily rare and belonged to the British Museum and to the Royal Botanic Gardens, Kew. The items on loan from these institutions became the subject of temporary declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act. Indigenous groups claimed traditional ownership of the items, whose 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 it was unable to do so. Legal proceedings were then instituted in the Federal Court.

The broader cultural implications of this impasse were immense. Ms Dawn Casey, formerly National Museum of Australia director, said in an advice to the Victorian government:

In my opinion, the impact of such a decision would include no further loans to any Australian museums.

She warned that for the sake of three disputed artefacts, 40,000 other Indigenous objects and human remains held in overseas institutions:

… would most probably never be seen in Australia again ... Museums in Europe ... would cease to lend other indigenous people’s cultural material to their countries of origin ...

The Institute of Arts and Law in London uses this particular example as a case study of the dangers of lending art overseas.

This is obviously a very sensitive area of legislation, dealing as it does with the profound grief many Aboriginal people feel over the injustices of their past treatment by government and official authorities that saw them treated in many ways as simply exotic fauna to be studied, categorised and placed in an anthropological context, an approach which took no account whatsoever of cultural standards, taboos or cherished beliefs. Many Aboriginal people feel these are wrongs which need to be put right by returning cultural artefacts, or in some cases actual human remains, to their place of rest.

We as a nation must be alive to these sensitivities. However, I hope that custodians of culture are not overly restrictive. Archaeology has its place in teaching the rest of the world the wonder of Aboriginal culture. Science has much to tell Aboriginal people themselves of their own history. Witness the sense of pride and self-worth in the faces of many Indigenous people when they convey that they are members of the longest continuous culture on earth, a realisation the scientific community came to through the properly conducted study of human remains from a past so deep that it challenges the human imagination. We saw a very recent example of the power of Aboriginal culture on the international stage when a museum located beside the Eiffel Tower was opened with many very large-scale commissions by Indigenous Australian artists embedded in its walls, ceilings and glass frontages.

Despite former promises by the government to comprehensively improve Indigenous heritage legislation, unfortunately this bill does not address broader Indigenous heritage issues such as those canvassed by the 1996 Evatt inquiry into the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984. At least the former minister Robert Hill was aware of the pressing need to deal with the problems highlighted by the Evatt report. As I said earlier in my contribution, he gave undertakings to see that Aboriginal heritage protection was improved along the lines identified in the report. However, as a number of speakers in this debate have indicated, including the member for Fraser, whilst those undertakings were provided to the opposition in good faith by then Senator Hill, they were not ultimately forthcoming.

This bill does not come close to recognising the need to do that work which remains undone. Amongst other things, this bill fails to respect customary restrictions on information, including gender restricted information; guarantee access rights to sites of recognised significance for those allowed to do so under customary law; establish independent Indigenous cultural heritage bodies; and legislate for protection of all aspects of Indigenous heritage, including intellectual property.

The National Heritage List has failed to live up to the promises of the government. Not a single place has been listed for its natural heritage values. Only one site on UNESCO’s list of 16 World Heritage sites in Australia is on our own National Heritage List. Giving some indication of the government’s seriousness on the issue, not even the Great Barrier Reef is on the National Heritage List. All I can say is that the government had better hurry because, if the scientists’ warnings on how well the reef is coping with climate change are even half right, it does not have too much longer to get serious about listing this extraordinary and wondrous place.

Other sites have an urgent call on the government’s attention and will be a test of the minister’s commitment to the value of cultural and heritage protection—like the controversial Burrup Peninsula in Western Australia, which experts claim has the biggest concentration of ancient rock art in the world, some of which is 30,000 years old, or seven times older than Stonehenge. A preliminary Australian Heritage Council report sent to Senator Ian Campbell in May last year said the entire peninsula qualified for National Heritage and World Heritage listing, even under the government’s extremely exacting standards. The department’s own report said the peninsula ‘contains one of the densest concentrations of rock engravings in Australia, with some sites containing thousands or tens of thousands of images’. Later in the same report it stated:

Estimates of the number of rock motifs range from 300,000 to well over one million images. They are thought to be at least 10,000 years old and the place constitutes the greatest cultural site in Australia.

Australia’s Indigenous communities hold their breath for the minister’s decision in this case.

We support this bill, such as it is—and, indeed, the second reading amendment moved by the member for Grayndler—but call on the government to remember its 2003 commitment to introduce a ‘new and better piece of legislation’. Unfortunately, this is not it. There is still more work to be done.

8:21 pm

Photo of Carmen LawrenceCarmen Lawrence (Fremantle, Australian Labor Party) Share this | | Hansard source

Despite some early promises and following the recommendations of the Evatt review, commissioned by the previous Labor government to better protect Indigenous heritage, sadly the government has delivered almost nothing. The ‘new and better legislation’ that it promised has not been delivered, certainly not in this Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005, nor have Indigenous people been properly engaged and consulted in the process. The Evatt report appears pretty much to have been shelved. It is fair to say that in this country Indigenous heritage of national significance is still not well protected. I want to speak tonight, as did the member for Calare—and I assure you we did not talk about this before we made our speeches—about one of the most spectacular failures to value and protect Indigenous heritage and, indeed, a globally significant heritage site.

Most Australians know the Dampier Peninsula, if they know it at all, through stories of the ‘miracle’ resources boom. They may have seen the television footage, the photographs and the images of the gas tankers powering through the apparently pristine channels of the Dampier Archipelago, delivering gas to an energy hungry world from the processing plants of the remote north-west coast of my state, Western Australia, to China, Japan and Korea, but they almost certainly know little or nothing about Woodside and the North-West Shelf operations beyond those images. Most of them probably do not appreciate—and I had the honour of giving a speech about this matter at the recent ICOMOS conference in Fremantle—that in the background of those images of the tankers is the most significant heritage site in Australia and, sadly, the only one on the World Monuments Fund list of the 100 most endangered places.

ICOMOS, for those who do not know, is the International Council on Monuments and Sites. It has an Australian branch, and it takes responsibility through its actions for the protection of heritage. I will return in a moment to the resolution carried at its conference. In giving a speech to the ICOMOS conference, I was able to draw attention to the Burrup Peninsula or, to give it its Indigenous name, Murujuga, and to indicate that it has the densest concentration of rock art in the world, with perhaps as many as a million petroglyphs. Some have described it as ‘the world’s largest gallery of engraved prehistoric art’, yet most members of parliament know nothing of this.

Rock carvings are scattered through the barren rocky ridges and steep-sided valleys of the peninsula and the surrounding islands. The oldest of the artwork is believed to date from the period when the Burrup Peninsula was an inland range, before the seas rose—before the inundation which drowned much of the surrounding landscape at least 9,000 years ago. Estimates of the age of the rocks vary, but they are ancient rocks. Amongst the most distinctive images are geometric designs, tracks of humans, animals and birds and a huge variety of both naturalistic and figurative representations of humans and animals, some so detailed apparently that you can identify the particular species. The rock art includes, for instance, depictions of Tasmanian tigers, which have been extinct on the mainland for over 3,000 years—I know there is debate about whether it is true in Tasmania but, on the mainland, it has certainly been that long. Some of the rocks form panels and composite images of daily activities, such as hunting, and clearly have been added to over very long periods of time. They form a continuous story.

Quite a number of different styles of engraving are represented—scored lines made with a very fine pointed rock, pecked marks, abraded lines and indents in the dark red-black glossy patina that covers the rocks. It is worth having a look at the images. The ‘fine execution’, the ‘dynamic nature’ of the images and the high degree of creativity have often been admired by those fortunate enough to have visited the site. For some, of course, it has been a revelatory experience.

Anthropologist Pat Vinnicombe—now, sadly, deceased—studied the area for over 15 years. Before her untimely death, she told Nicholas Rothwell:

I have the sense these carvings were bound up with instruction, initiation (that) the entire peninsula was a place of revelations, a teaching site linked to myths. There’s a sequence of images that leads from the ground level to the heights. I’m convinced this is what the Burrup is all about—all the sites are associated with stories, songs.

She said:

We tend, of course, to dissociate these things and see it as an art gallery—

a description that I mentioned earlier was used. She said:

You might as well tear a chapter from a book and hope to catch its plot as understand this place piece by piece—

or, for that matter, to dismantle it piece by piece, which is what is happening now. The site has rightly been described as ‘the richest and most exciting region of rock engravings in Australia’, providing an ‘unusual and outstanding visual record of the Aboriginal responses to the rise of sea levels at the end of the last ice age’, which has been well described by the member for Calare.

The site tells the story of the long history of contact and the shared visual narratives between the Aboriginal societies in the region, now close to the coast, and much further inland in Australia. The song lines and contacts are there to be seen. With European settlement, as was so often the case in our history—despite the Prime Minister’s trying to expunge it—came devastation for the original inhabitants of the peninsula, the Yaburara people, from disease and, most notoriously, from so many being killed in the 1868 Flying Foam Massacre—something the Prime Minister would have us believe never occurred.

All who have seen even part of this extensive precinct, which covers 42 islands over a 45-kilometre radius, marvel at the range and diversity of the artwork which, together with camp sites, middens, quarries and standing stones, forms an irreplaceable record of the lives of the Indigenous people from the first arrivals to the recent past. Yet we know little of it and, it would appear, care even less.

It retains great cultural and religious significance for the Aboriginal people of the area. Caroline Bird and Sylvia Hallam have described it in their report to the National Trust. They said:

... the entire Archipelago is a continuous cultural landscape providing a detailed record of both sacred and secular life.

We are privileged, if we have the privilege to go there, to glimpse the minds and identities of individual artists and communities. The National Trust has described the Dampier rock art precinct as ‘one of the world’s pre-eminent sites of recorded human evolution and a prehistoric university’. Surely we do not want to destroy our history in this way.

It should be obvious to anyone who has read about it, who has been there or who has thought about it that such a site is a very precious part of our heritage—of the world’s heritage, importantly—deserving of careful study, which has not ever been completed, and preservation. Instead of the care and reverence which we would expect to be shown to a site with the significance of Stonehenge, the painted caves of Lascaux in France or the structures of Machu Picchu, the rock art precinct on the Burrup Peninsula has been—and I underline this—scandalously abused, taking second place over more than 40 years to resource exploitation.

An unknown number of petroglyphs were turned to rubble when the Hamersley Iron port and rail infrastructure, the town of Dampier and the Dampier Salt facilities were constructed in the 1960s and 1970s, perhaps partly out of ignorance but there were warnings even at the time about the significance of this site. Without a thorough heritage assessment—and, frankly, one still has not been done—thousands more were destroyed when Woodside’s North-West Shelf LNG plant and the associated port were constructed in the 1980s, whereas others were shifted from their original sites and placed in a temporary compound, recently discovered to have been left undocumented and without proper conservation for 20 years.

Despite what is now becoming a persistent pressure on the state and federal governments to properly assess the cumulative effects of the sulphur and nitrogen emissions from the LNG plant, this research has only just begun and has already been criticised for failing to deal explicitly with the question of the effects of the emissions on the rock surfaces. It is one thing to say that the air is cleaner there than it is in the capital cities but what is its effect on the rock surfaces, since it is the colour contrast between the patina and the engraving which gives the carvings their distinctive character?

The most recent assault on the rock art—it does not stop—occurred during the construction by one of the Western Australian departments of an infrastructure corridor to facilitate further industrial development on the Burrup Peninsula. It goes ahead every day, sadly. Every day many of the petroglyphs are exposed to possible theft and to vandalism, because there is still no proper management at the site: access to the site is not managed and there is no surveillance to prevent further desecration of the site. The local chamber of commerce and industry is deeply disturbed by these facts.

There have been a number of partial surveys of this matchless site. In fact, a lot of them were undertaken as part of the development approval process—so with the interests of the companies rather than heritage protection in mind. The site has never been the subject of a comprehensive inventory or analysis; it is long overdue. As a result, there is no generally accepted framework for understanding the various locations and cultural elements within the site. We know bits and pieces about it because of the work of some very dedicated people. Nor has a heritage management plan of any kind been devised; indeed the site is now plagued by a proliferation of plans and a lack of overall coordination between local, state and national governments, between industry and Indigenous interests and between tourism and heritage protection.

To add insult to injury, the recently released Western Australian Department of Conservation and Land management plan for tourism and visitor facilities on the Burrup Peninsula Conservation Reserve shows what I have to describe as a truly astounding disregard for even the most basic cultural heritage management principles. It is not as if we do not have those principles. The plan contains no reference, for example, to either the Burra Charter or the ICOMOS code of ethics, which should govern such plans if we are serious about heritage protection in Australia. The proposal would allow camping on previously inaccessible sites; the construction of visitor facilities, which would ruin the integrity and ambience of the site; and uncontrolled visitation to areas which should be protected. All of these things point to a failure to understand the responsibilities of heritage protection, let alone the significance of the site.

These omissions are not unique. The numerous government reports and management strategies all share a surprising lack of understanding of, and concern about, the heritage and scientific value of the area and the question of cultural resource management more generally. Successive governments—and I was Premier for a time so I include my own—have failed to appreciate the global significance of the site. Indeed, I am sad to say that the current government opposes heritage listing of ‘all or any part’ of the Burrup Peninsula because of ‘potentially grave consequences’ for the resources sector—not to mention the potentially grave consequences for our heritage, for Indigenous heritage and for global heritage.

This evening I have heard of a report—which I hope is correct, but I am not sure of its significance—that Woodside is now prepared to endorse the heritage listing of this site. I will wait with interest to see whether there is some trade-off expected by the corporation. Perhaps I should not be so cynical, but 40 years of neglect tends to breed that. Although lip-service is sometimes paid in government documents to the site’s heritage significance, it has not been matched by any serious attempts to reconcile the conflicts between industrial development and this priceless site. It is really a matter of carving out increasingly large segments of it. Cultural resource management seems to be a foreign country both to the bureaucrats and to their ministers.

As if these problems were not grave enough in the history of the site, Woodside, as I have indicated, now propose further destruction of the site to accommodate a new LNG plant, a wharf and storage facilities—Pluto A and B. They have promised—and I was briefed by them recently—not to destroy more than 10 per cent of the rock art on top of the probably 30 per cent or so that may have already been destroyed or set aside for industrial development. It is as if this is a series of unrelated elements and you can just pull bits of it out. But much more of the rock art will be stranded, even with their proposition in the moonscape that is an LNG plant. It is not a friendly place to heritage of this kind. Tragically, the state minister for Indigenous affairs has already given her approval for the company to destroy or move the ancient rock art, which will affect up to 150 rock art panels.

While it is probable that any further concentration of industrial activity in the area will pose a serious pollution threat, there is already a cleared site—where there has been destruction—adjacent to the existing plant that state and federal governments could insist be used by Woodside, instead of allowing them to undertake further destruction and removal of petroglyphs. Woodside have claimed that the other joint venture partners are refusing to allow access to the site, which is jointly managed. In letters to the National Trust, however, Shell, Chevron, BHP Billiton and the others all indicate—almost in the same language—that they are willing to negotiate. Should they fail to show good faith in these discussions—and perhaps they might because Woodside is now on a tight timetable and these are all competitors—the state, in my view, can easily intervene to force an outcome; they have the power. It is not clear to me, in any case, why Onslow, which seems to be a far superior location and which has already been selected by BHP Billiton for similar activity, should not be fully evaluated and costed before the Burrup Peninsula is sacrificed yet again to the great god mammon.

There is no limit to the ways in which money can be made. We are in the midst of an unprecedented boom, especially in my state. But every petroglyph that is destroyed on the Burrup Peninsula is destroyed forever. Woodside could, and still can—and, with the assistance of the state government, maybe it is signalling that it is prepared to—put all its considerable financial and intellectual resources into building an adequate LNG processing plant somewhere else. But, if you wanted to re-create even a single petroglyph, you would need at the very least a time machine; you would need to become the appropriate custodian of the cultural meaning of these rock engravings; then you would need to learn how to make them; and, finally, with the hard work finished, you would only have to wait 10,000 years or more.

Former Liberal resources minister Colin Barnett has come to a similar understanding. I have had recent conversations with him about this. He said in a recent parliamentary speech: ‘What was regarded as acceptable in the 1960s and 1970s and perhaps even in the 1980s is now unacceptable. We cannot tolerate that type of approach for the future. We have a responsibility to protect this most significant and impressive asset.’ Hear, hear!

Local Aboriginal people too have clearly stated in meetings with government officials that they do not want any further development on the Burrup Peninsula, although they feel constrained from publicly stating their objections because they believe that an agreement they have with the state government precludes them from doing so. I hope the state government will tell them that that is not so. They fear that they will incur severe financial penalties if they object—and they do object.

There is a glimmer of hope in the placing of this site on the National Heritage List following the recent, very strongly argued recommendation from the Australian Heritage Council, in that that may well force a belated heritage management plan. The assessor described the Dampier Archipelago site as ‘exceptional’, ‘outstanding’ and ‘the richest and most exciting region of rock engravings in Australia’—probably in the world, in fact.

But the Burrup Peninsula, sadly, may again be sacrificed to industrial imperatives. The minister has delayed his decision—for as much as a year, he said a couple of days ago—to allow for ‘greater public consultation’, saying that of course some rock art will have to be destroyed. Why? At the same time, as we know, he has rushed through amendments to the relevant Commonwealth legislation to allow him to overrule the council’s recommendations if he or the government so chooses and to delay it indefinitely. Meanwhile, Flemington Racecourse has been listed with alacrity, and the Prime Minster has demanded that the PNG government not allow a mining proposal on the Kokoda Trail because of its value to Australia’s heritage. At the same time, of course, the Burrup Peninsula is squarely in the firing line. In the end, it is all about what you value.

Anyone who has been paying attention to the debate in Australian politics over the last few years cannot have failed to notice that there is a lot of talk about values: Australian values, lists of values on classroom walls together with the flags and functioning flagpoles—a condition for receiving Commonwealth funding—and values required to be recited as a condition of receiving a visa. The tragedy with a lot of this talk is that the actions of those reciting the values are often at odds with their prescriptions. I will not say anything more about that except that, as my mother used to tell me, actions speak louder than words. And so it is with heritage.

Heritage, of course, is about values—or, more precisely, what we value from our past and what we are prepared to protect, conserve and pass on to future generations. Knowledge and experience of our heritage gives meaning to our lives, inspires us and contributes to our collective sense of identity. The sites, landscapes and places which we are galvanised to protect are, in some ways, an indication of what matters to us and what we think of ourselves. Our actions do speak louder than words, as they do on the Dampier Peninsula.

I think it is no accident that successive generations of Western Australians and their governments, state and federal, have not seen fit to protect the precious heritage that is the Burrup rock art precinct. It is not that voices have not been raised in its defence, but they have been overwhelmed by the siren call of development, louder and more seductive in Western Australia than in any other part of the nation and far more important to most people than our Indigenous heritage. As one commentator put it: ‘Indigenous significance isn’t significant enough’ to galvanise us into action. But what is at stake here is even greater than the value of the site to Aboriginal Australians, great though that is. This is a unique site whose value is to all of us—indeed, to humankind. Its desecration and neglect constitute a measurable impoverishment of our world. Surely, in the light of all the previous mistakes we have made, it is possible to avoid repeating them. Ignorance certainly cannot any longer be an excuse.

8:41 pm

Photo of Bob BaldwinBob Baldwin (Paterson, Liberal Party, Parliamentary Secretary to the Minister for Industry, Tourism and Resources) Share this | | Hansard source

In summing up the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005, I say that it reflects the Australian government’s commitment to protecting heritage and ensuring that Australians benefit from appropriate international cultural exchanges. The amendments to the act will ensure that Australians continue to have opportunities to see in Australia significant Indigenous cultural heritage objects that are owned by institutions overseas. The amendments will encourage international cultural exchanges. They will remove an uncertainty that would discourage overseas institutions from ever allowing items from their collection to be exhibited in Australia. The amendments to the act will also provide for the repeal of the Victoria-specific provisions of the act, including the scheme for Victoria alone that is set out in part IIA of the act.

In 1987 the act was extended to include provisions that that would apply only in Victoria, at the request of the Victorian government of the day. These provisions now prevent new Victorian legislation for Aboriginal heritage protection from coming into effect. The Victorian government wrote to the Australian government in 2005 to explore how this obstacle could be removed. All other states and territories have legislation to protect this heritage. The amendments remove the obstacle to Victorian legislation and allow a sensible sharing of roles and responsibilities for the protection of cultural heritage in Victoria. The proposal is sensible for the Australian government and for Victoria and for more comprehensive and coordinated administration of Aboriginal cultural heritage in Australia. Following repeal of the Victoria-specific provisions, the Australian government legislation will provide the same level of protection in Victoria that it provides for Aboriginal and Torres Strait Islander heritage in other parts of Australia.

We do commend the bill to the House, but having noted the proposed amendments provided by the opposition I have to say that the government cannot support those amendments. There are various reasons. One is that the Australian government stands by its commitment, as stated by Senator Hill in 2003, to reform the legislation. The Minister for the Environment and Heritage has written to his state and territory colleagues commencing a consultative process to reform the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. This act will be reformed.

Following former Senator Hill’s 2003 commitment on behalf of the government to comprehensive reform of this legislation, the government has not been idle in pursuing reform, as is evidenced by the fact that, firstly, in January 2004 the government transferred responsibility for the reform from ATSIC to the Department of the Environment and Heritage; secondly, in March 2004 the department consulted Indigenous representatives on the reforms, but it postponed consultations during the implementation of the government’s new arrangements in Indigenous affairs; and, thirdly, in October 2005 the government introduced the current amendments to the Senate.

The Australian government’s heritage reforms under the Environment Protection and Biodiversity Conservation Act 1999 provide protection for places on the National Heritage List, the Commonwealth Heritage List and the World Heritage List, including places of Indigenous heritage value. This protection is on top of protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and can apply to a broad range of Indigenous heritage. Both acts acknowledge the importance of a national approach that recognises the responsibilities of states and territories in protecting Indigenous heritage places and other heritage.

Not all of the recommendations of the Evatt report will be applicable in 2006. The government will consult Indigenous people and other stakeholders to hear their views on issues, including issues identified in the Evatt report. The government concurs with the member for Fraser, Mr McMullan, on this point. A further public review will delay reforms and is not needed to identify the issues. The Evatt report remains valuable as a source of information and proposals for reform. Additionally, in 1998 there was a report from the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the reform of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Department of the Environment and Heritage has already sought an exemption to the Legislative Instruments Act 2003, the effect of which would be that declarations made under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 would not be subject to the sunset provisions of the Legislative Instruments Act 2003. We urge all members to support the bill, but we cannot accept the second reading amendment moved by the opposition.

Question put:

That the words proposed to be omitted (Mr Albanese’s amendment) stand part of the question.