Brendan 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.

See this speech in context