Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | Link to this | Hansard source

The Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] relates to heritage protection. It seeks to amend the existing act 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.

The second element goes to the issue of repeal of part IIA and other provisions in the act that apply only to places in Victoria to enable the Victorian government to administer Aboriginal heritage protection in Victoria directly through its own legislation. The third element brings 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.

Having said that, I think that this bill provides an opportunity to evaluate the government’s performance with regard to Indigenous heritage. I must say that Labor is extremely disappointed with this bill, not so much because of what it does but because of the failure of this government to respond to the opportunities that this legislation presents.

Labor supports moves to give greater certainty to international cultural loan arrangements and believes that the Victorian government should administer its own Aboriginal heritage protection regime. However, Labor is concerned that this bill reflects the broader problem of this government’s complacency on environmental and heritage protection issues: the Commonwealth government only takes an interest in matters where it sees there is political advantage to be gained. The development of the bill also reflects the government’s attitude to consultation with Indigenous Australians, which I think we can now say confidently has been neglected at every turn.

On 20 August 2003, former senator Robert Hill made a statement to the Senate which highlighted the government’s views on these questions. He said:

We gave undertakings a couple of days ago that the—

Aboriginal and Torres Strait Islander Heritage Protection Bill—

would be brought to the Senate as quickly as possible. The minister has since reaffirmed to me that negotiations and consultations are continuing to take place … 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.

Yet three years after that statement was made on a question of urgency, no ‘new and better piece of legislation’ has actually emerged. In fact, there is no evidence that there was any consultation taking place with Indigenous communities at the time Senator Hill made those statements, and we have seen no evidence that the government has consulted Indigenous communities on the broader program contained within this legislation.

Indeed, just over a year ago I was contacted by a constituent, a Yorta Yorta man, who had been very surprised to hear that Dr Sharman Stone MP, who is now of course Minister for Workforce Participation, indicated on ABC local radio that the government was planning to change this act once it had control of the Senate after 1 July last year. My constituent was surprised to hear this because, although he was a very active member of his community, especially with regard to heritage issues, he had not heard about the government’s proposed changes and his community had not been consulted. So in Victoria it is quite apparent that the community was not directly involved in the preparation of this legislation.

The point here is not what effect the bill will have. I have every faith that the Bracks Labor government will administer Indigenous heritage protection properly. I am, however, concerned that the Howard government appears to have developed this particular bill in secret, knowing full well that it will be able to use its Senate majority to pass this legislation, no matter how inadequate its proposals are. So, while we are not opposing this bill, I would like to indicate that I believe this bill to be grossly inadequate.

The minority report of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry stated that the bill continues to ignore many of the substantive recommendations of the 1996 Evatt inquiry into this act, such as: respecting customary restrictions of information, including gender-restricted information; protection from disclosure contrary to customary law restrictions, including guidelines on the kind of information courts can seek and exemptions from freedom of information laws; guaranteed access rights to sites of recognised significance for those recognised as being allowed to do so under customary law; minimum standards for state and territory cultural heritage laws, including automatic blanket protection for sites clearly falling within these standards; the establishment of an Aboriginal cultural heritage agency and of Indigenous cultural heritage bodies controlled by Aboriginal members representative of Aboriginal communities with responsibility for site evaluation and administration; and, finally, protection of all aspects of Indigenous heritage, including intellectual property. None of these issues have been dealt with by this legislation.

So Labor calls on the government to fulfil its previous commitment to consult with Aboriginal and Torres Strait Islander communities on the broad range of amendments to the act, including addressing the recommendations that were contained in the 1996 Evatt report. It is clear that the Commonwealth has responsibility for these issues, but the Howard government has made its attitude to Indigenous heritage protection abundantly clear. That is, the government is essentially indifferent—it could not care less. The legislation committee minority report on this bill found:

… the Howard Government has failed to meet its obligations to protect and conserve Indigenous heritage and has drastically reduced its engagement in Indigenous heritage issues.

It said that the government has been reluctant to actually use the Aboriginal and Torres Strait Islander Heritage Protection Act—under which only one declaration has been made since 1996—and has instead limited its involvement in Indigenous heritage issues to the administration of the heritage provisions in the Environment Protection and Biodiversity Conservation Act 1999. This is despite the fact that the Aboriginal and Torres Strait Islander Heritage Protection Act has a far greater capacity to protect Indigenous heritage than the EPBC Act.

Under the environment protection and biodiversity act places considered to be of national significance can be listed on the National Heritage List. However, the way the Howard government has administered these provisions means that a place of significance to a particular Indigenous community is not eligible to be listed unless it can be established that it is also a matter of significance to the broader Australian community. What that means is that there are many sites of extreme importance to Indigenous communities which are ineligible for listing on the National Heritage List. And, of course, we know that those sites that are eligible will be subject to the political whims of the minister and, as far as I can see—the overwhelming evidence suggests that this is the case—to the incompetent management of the National Heritage List.

Under this incompetent regime only one of Australia’s 16 magnificent World Heritage sites has actually made it onto the National Heritage List so far. The listing process, as I think was predicted by Labor, has become highly politicised. The minister, Senator Ian Campbell, has consistently been unwilling to list places that are politically contentious. This is a very, very important question when it comes to these matters of cultural heritage. If we are only going to list things that every single person agrees upon then very little will, in fact, be listed in this country. This was clearly demonstrated by the fiasco surrounding the use of Victoria’s Alpine National Park for cattle grazing.

Specifically in relation to Indigenous heritage sites, the sagas of Wave Hill and the Aboriginal tent embassy provide pertinent examples of the way in which the government has essentially neglected these questions and has made these issues subject to its own view of political advantage. In July 2004 Minister Campbell said that the Wave Hill walk-off site would be given priority consideration for listing on the National Heritage List. Since then the minister has not said another word about the listing of Wave Hill. This is despite the fact that we saw, I think it was just last year, the 30th anniversary of the famous hand-back of land to the Gurindji people by Gough Whitlam.

If you want a site of national significance in terms of land rights, surely Wave Hill would meet that criterion. In terms of political and cultural significance surely that site would meet all reasonable criteria. But what you have is a political decision made by the government to not act on this because it finds it to be symbolically embarrassing. It is a symbol it does not want to face up to because it goes to those fundamental questions about the rights of Indigenous people. There are some issues that this government wants to turn its back on. It does not want to address these matters because its version of the cultural wars is prosecuted to the exclusion of those who disagree with it, and this is one very good example.

Will the 40th anniversary of the actual walk-off itself, which is coming up on 22 August this year, come and go without any acknowledgment by the government? From what we have seen to date, I would have to suggest that that is exactly what will happen because there are some things in our history that this government does not want to engage with, does not want to talk about. Minister Campbell has recently refused to list the Aboriginal tent embassy on the Commonwealth Heritage List—which is designed to include places of cultural significance located on Commonwealth land—on the basis that the listing itself would be divisive. This decision was made despite the fact that the Australian Heritage Council has found that the embassy meets the listing criteria.

These are matters of national significance and the government ought to encourage public debate about what it is that we are doing as a country, what we have done and what we are as a people. Whatever you think of the tent embassy itself, there can be no doubt about its historical significance, not only in relation to Indigenous land rights but also to the development of Australian democracy and the capacity of Indigenous people to participate within the political culture. And, of course, the infamous case of the orange-bellied parrot debacle shows just how relaxed and comfortable the minister now is with making environmental and heritage protection decisions that are motivated by politics rather than based on any empirical evidence.

So what we have then is an issue in the context of the particular detail of the bill and those two recommendations of the legislation committee which just have not been covered. The first recommendation of the minority report was that enabling legislation to provide certainty for international loans for Indigenous Australian artefacts should be accompanied by a clear policy on the investigation and repatriation of objects of cultural significance that have been removed from Australia without the consent of their custodians.

This is an extremely important matter given our somewhat sorry history in regard to the expropriation of cultural artefacts by imperial policy and by a whole series of others that essentially stole the cultural artefacts of Indigenous people. I think it should be noted that Labor supports these moves to provide a greater lending certainty to overseas museums and collections which will enable artefacts to be brought to Australia for exhibition, and I do think there needs to be some security about these things given that these questions are so often controversial. However, we need to consider that the government should also take a stronger role in pursuing the return from overseas of artefacts of great cultural significance that were taken without consent. We are yet to see any clear policy from the government on those matters.

The second recommendation of the minority report relates to exempting heritage protection declarations from the 10-year sunset clause. I understand the Greens will be moving an amendment to give effect to this recommendation and Labor will be supporting that amendment.

In conclusion, Labor is extremely disappointed at the failure of this government to address these very important issues. It has missed yet again an opportunity, through this legislation, to face up to our national responsibilities on these questions. Some three years after the commitment made by Senator Hill that the government would bring forward a new and better piece of legislation, Indigenous Australians will be left waiting. They will be left waiting as a result of this government’s indifference to these matters. Three years after Senator Hill said that consultations were to take place, Indigenous communities, yet again, are still waiting.

Labor will support the bill, but it is grossly inadequate. We acknowledge—and this parliament ought to acknowledge—that the critical issues of Indigenous heritage have not been faced up to by this parliament under the control of this government. There needs to be some meaningful action to improve what is in international terms an appalling situation.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The Democrats likewise support the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] but recognise that it is grossly inadequate to meet what is required to ensure proper protection of Indigenous heritage throughout Australia. I associate myself with the minority report of the Environment, Communications, Information Technology and the Arts Legislation Committee. Although I am not a full member of that committee, I certainly concur with the comments contained in the minority report.

It is worth re-emphasising an aspect of what Senator Carr said, which is that it is nearly three years since Senator Hill, as the then environment and heritage minister, gave undertakings that the bill to improve the Aboriginal and Torres Strait Island heritage protection legislation would be brought to the Senate as quickly as possible. The minister said that negotiations and consultations were continuing to take place, that the government recognised the shortcomings in the existing systems and that reform of that was long overdue. If it was long overdue in 2003, it is more than long overdue in 2006. It is hard to see the lack of action in this area as anything other than, at best, an inability to get this area out of the too-hard basket and, at worst, a clear indication of continuing contempt for the heritage of the Indigenous people of this nation.

There is a new politically correct sort of approach to Aboriginal and Torres Strait Islander matters in Australia, in which if you mention at all the history of what Aboriginal and Torres Strait Island people have gone through, you are immediately playing up to the guilt industry, adopting a black armband view or keeping Indigenous people mired in a victim mentality. We get all of those sorts of comments from the new politically correct culture warriors. I acknowledge that it can be unhelpful to do nothing other than continually point to past injustices without looking at what needs to be done in the here and now and into the future, but that simple and undeniable piece of commonsense should not be blown out into a blanket refusal to acknowledge the reality of the history and the damage of the consequences of that history.

There is no doubt that one of the aspects that continues to cause significant trauma to many Indigenous Australians is the destruction of their heritage: not just the dispossession but the destruction of and total lack of recognition and contempt shown towards areas of significance and areas that have great value to Indigenous Australians. The fact that we still have an inadequate process in place for protecting that even today just compounds those errors and those wounds of history. That is not to apportion blame, point fingers, smear the history of our nation or any of those things; it is simply to state the fact that everybody cannot deny that actions done to the Indigenous people of this country over the course of the last couple of hundred years have been mentally harmful and have created immense wounds for those Indigenous people, who have nonetheless survived the colonisation of this country.

As part of that we should also recognise that a failure to do anything now to at least ensure that further damage is not done maintains and continues to keep that harm alive. It is not completely unlinked from the comments and the policy approach of this government about practical outcomes for Indigenous people. I fully support any approach that will improve the practical day-to-day lives of Indigenous people. As I have said publicly a number of times, all parties in this place from across the political spectrum have failed the Indigenous peoples of this country, so none of us have a great deal to be proud about. It is not a matter of political positioning or point scoring. It is not a matter of trumpeting an ideology.

I am fully in favour of anything that will have practical, positive results, and I am quite prepared to park ideologies at the door to achieve that. But, as part of that, it has to be acknowledged that linked to practical, positive improvements for Indigenous people is clearly demonstrating that the harm from the past will not continue to be done. The harm that has been caused and is clearly there for anybody who engages with many Indigenous communities around Australia will continue the feeling of injustice and the sense of dispossession that link to some of the problems of despair that many people reflect on. Some of that—not all of it—links back to our refusal as a parliament and as a country to at least acknowledge, and at least take action to ensure that we will not continue to compound, the harms of the past. We have collectively failed to do that, and this government has clearly failed to do that.

The fact that the then minister, Senator Hill, acknowledged three years ago to this chamber that reform was long overdue and that the existing system has shortcomings yet there has been a failure to act on that is a disgrace. I recall some of those negotiations at the time, because there were ongoing negotiations regarding other environment legislation, and I recall the then minister speaking on the Environment and Heritage Legislation Amendment Bill. The attitude towards this issue was always: ‘We’ll get around to that one. We haven’t quite finished the consultations yet. Let’s put this one through and we will fix that one up later.’ I now feel frustrated for having enabled that at the time and for having accepted the minister’s word that action was being taken and something would be done, and we let that go through on the promise that something else would be done. In that sense, I have to accept some responsibility for not doing more to insist at the time that more concrete things be done.

With regard to this area of the legislation, it is clearly a monumental failure on the part of the federal government. Part of why this is needed is that there is not a guarantee of adequate protection at the state level for some of these areas. I point to the current push from the Western Australian government to deny heritage protection for the world’s biggest collection of rock carvings. According to today’s Australian, the Western Australian government has called for the carvings on the Burrup Peninsula and the Dampier Archipelago to be left off the national protection register. The Western Australian National Trust director likened this to England moving Stonehenge for a mine or Egypt selling its pyramids for oil. As Mr Perrigo from the National Trust says, we have something here in Australia older than both of those sites and we are planning to destroy them or damage them.

One of the comments the Prime Minister made a little while ago that I gave public support to, whilst being a bit dubious about what his underlying intent was, related to the fact that we in Australia do not have a good enough understanding of our history. We do not teach our history well enough in schools. We do not have the fabric of our nation’s history adequately represented through many of the other activities of our society. There is a lack of awareness and a lack of knowledge about many aspects of our nation’s history, which I admit to having myself. A clear and undeniable part of that ignorance and lack of knowledge is our nation’s Indigenous history. When we have something that is so rich, so ancient and so unique but our country—purely through lack of awareness or interest—refuses to become aware of it and make it part of the fabric of our nation into the future, that is horrendously inadequate for us, let alone what it says about our attitudes towards Indigenous people. The positive benefits for our nation of appreciating these sites—let alone what it means for Indigenous Australians—means we should be embracing and magnifying so many aspects of our nation’s Indigenous heritage and history. Of course it has some terrible aspects to it, and they have to be part of that narrative for it to be a genuine one, but the negative parts of that narrative are not the only parts of it; the enormous richness and the continuing survival of many aspects of Indigenous culture and heritage are a plus that our whole nation can share in. Sure, it is first and foremost for Indigenous Australians, but it is for our whole nation as we continue to develop and evolve as a nation into the future. It is just insane that we are not grasping this issue, putting maximum protection over these things and promoting them to the world.

Last year I was fortunate enough to visit Ireland as part of a parliamentary delegation. We went to a very old circle grave there called Newgrange. From memory, it is about 6,500 years old. I think it is the oldest continuing stone structure in the world. We have things in Australia—Indigenous sites—that are way older than that and put that in the shade, yet we have so little awareness of them. On top of that, we have inadequate protection of those sites. The Newgrange site is a World Heritage site. Can you imagine that being bulldozed for oil or being picked up or dug up and put somewhere else? Of course not! Yet we as a country, which in its modern form is so young, have this amazing ancient heritage that we do not acknowledge and, worse than that, do not protect. That is a failure at the state level as well as at the federal level. As I said before, it is a failure by all of us.

While this legislation does some small things to upgrade some aspects and bring Victoria into the same mix as other states, it clearly falls short of what is needed. To be left to one-off decisions on the part of the federal minister on the basis of his views is clearly not adequate. There is no doubt that the heritage aspects of the Environment Protection and Biodiversity Conservation Act give very significant powers to the federal minister. It does give powers to others to undertake court action, which they could not do before. The problem is that that is only if the minister chooses to exercise it. Of course, as Senator Carr said, he has famously exercised it with regard to the orange-bellied parrot. I hope the orange-bellied parrot survives as well, although I wonder why he has not done things about some of the other threats to the orange-bellied parrot, such as land clearing in its habitat. I do not know. Perhaps the Indigenous people, amongst all this rock art in Western Australia, have a painting of an orange-bellied parrot and maybe that will make the minister more keen to act to protect it, but it should not be up to the political currents and movements of the day—whether it is a Labor minister, a Liberal minister or a state Labor government in Western Australia making the decisions.

Part of what adds to people’s cynicism is that the Liberal opposition in Western Australia are saying that this is a magnificent site and that it would be a national shame if it were not protected but, when their former leader, Mr Barnett, was resources minister he did not realise the significance of this art, so he did not do enough to protect it either. But he now says, ‘I would have if I had known.’ It is no wonder people like us get cynical and it is certainly no wonder that Indigenous people get cynical when they have cast-iron promises from the minister of the day in this chamber saying, ‘This is long overdue; it’s urgent; we’re doing something about it,’ and nothing happens. Then you get the federal and state people pointing fingers at each other all the time and whenever they are in opposition saying, ‘This is outrageous’; however, when they are in government somehow or other nothing seems to happen.

It is a consistent story and it is obviously not just in this area. But particularly given some of the enormous continued barriers to ongoing advancement of Indigenous Australians that come as a direct result of many of the atrocities and offences committed against them and offensiveness towards them, this is a small part but a part in our continual refusal to do more. I might say that it not only continues the injustices of the past but also in a quite genuine way constitutes one of a number of barriers to the practical advancement that this government talks so much of.

Even from that purely pragmatic, purely economic point of view and to get value for money from the dollars that are being put into this area—such as some of the new programs in the last budget—action on these sorts of things plays a key part. A failure to act on these sorts of things actually makes it less likely that some of these other programs will succeed. It is in all of our interests—not only purely fiscal interests but also the broader, perhaps more intangible, things that we all recognise as part of why we need to protect the heritage aspects of our nation. When we can value heritage sites in Australia that are buildings that are 100 years old, it is beyond me how we can fail to protect structures, paintings or other areas that indicate the presence of the original peoples of this nation, going back thousands and thousands of years. This is an urgent matter, and I would really like to hear a commitment from the government and this current minister to say that they are going to make this priority No. 1. As I said, it was long overdue in 2003—as even the then minister said. It is well and truly past that now.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

While the Australian Greens have some concerns about the detail of the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] and there have been amendments circulated in the chamber, there is a bigger issue of concern that I want to raise—and Senator Carr touched on this issue, as did Senator Bartlett—and that is what this bill does not seek to do and the issues it fails to address.

We are concerned that the government has failed to deliver on its promises to revisit the Aboriginal and Torres Strait Islander Heritage Protection Act in order to better protect Indigenous heritage, as was stated in this chamber by Senator Carr. On 20 August 2003 during the debate on the environment and heritage protection legislation, Senator Hill told the Senate:

We gave undertakings a couple of days ago that the sites bill—

the ATSIHP bill—

would be brought to the Senate as quickly as possible. The minister has since reaffirmed to me that negotiations and consultations are continuing to take place. 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.

Three years down the track we still do not have those amendments, the new and better piece of legislation has never materialised and Indigenous groups have not been properly consulted.

These are some of the main reasons that the bill was referred to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee. I am concerned and disappointed that the majority report that came out of that committee did not address the reasons for the referral. I remind the Senate about the reasons for the referral, which were stated in Hansard and are contained in the Selection of Bills Committee report. They were listed as:

The adequacy of amendments to protect Indigenous heritage.

Do the amendments address concerns of indigenous Australians?

Do the amendments reflect the changes recommended by the Evatt Report?

During the limited time available for community consultation on this issue, there were a number of concerns about the bill raised by Indigenous communities, particularly in Victoria. The majority report considered how it met its stated objectives but it failed to consider how it relates to the three criteria listed for the inquiry. It did not consider how the bill as a whole addressed these issues.

The bill does not address adequately the protection of Indigenous heritage. Since coming to power in 1996 the Howard government, I believe, has failed to meet its obligations to protect and conserve Indigenous heritage and has dramatically reduced its engagement on Indigenous heritage issues. This has been illustrated in both the government’s reluctance to use the ATSIHP Act and its administration of the heritage provisions in the Environment Protection and Biodiversity Conservation Act 1999.

In 1984 the ATSIHP Act was initially enacted as a temporary stop-gap measure while the government of the day developed more comprehensive national land rights legislation. When it became apparent in 1986 that such legislation would not be forthcoming, its sunset clause was repealed. The point is that it was not at the time considered to provide an appropriate national approach to the Commonwealth’s heritage obligations. The ATSIHP Act was described in the Evatt report as ‘an act of last resort, intended to fill the gaps in state and territory heritage protection’. It is fair to say that the ATSIHP Act has seen very little use. Of the 200 applications lodged since its commencement in 1984 only 22 declarations have been made. Since the coalition government came to power in 1996 only one declaration has been made. At the same time there has been an apparent reluctance to prosecute breaches of the act.

With the advent of the EPBC Act, it appears the intention of the government is to confine its statutory involvement on Indigenous issues to the Environmental Protection and Biodiversity Conservation Act and ignore the ATSIHP Act. This has led critics of the ATSIHP Act to describe it as a dead parrot. For instance, Wilkinson and McIntosh in 2006 from the Australia Institute—and this paper is in press—said:

...in so far as practical implementation, the ATSIHP Act is ostensibly a piece of dead legislation, at least in terms of the life of the Howard Government.

This creates a problem, for two reasons. Firstly, the ATSIHP Act has a far greater capacity to protect Indigenous heritage than the EPBC Act. The EPBC Act confines the statutory role of the Commonwealth to matters of international significance—that is, World Heritage areas—or national significance such as the National Heritage places and places located on Commonwealth land; that is, Commonwealth heritage places.

The ATSIHP Act, however, contains no such limitations. In the intergovernmental agreement on the environment in 1992 and in the COAG agreement on Commonwealth and state roles and responsibilities for the environment in 1997, the Commonwealth expressed a desire to limit its involvement in environmental issues largely to Commonwealth areas and matters of international and national significance. The COAG agreement explicitly excludes heritage issues from this agreement. In relation to Indigenous heritage, the COAG agreement notes in clause 6 that ‘Indigenous heritage issues are being addressed in a separate process and are not covered by this Agreement’. To date, the cooperative national heritage places strategy has not been prepared and the Indigenous heritage process appears to have been terminated by the federal government in the late 1990s. Consequently, it appears the Commonwealth’s decision to confine its involvement in Indigenous heritage issues in the manner described is a unilateral decision made with little or no consultation with Indigenous communities or the states and territories.

When the heritage amendments to the EPBC Act were debated in 2003, Senator Robert Hill gave repeated assurances that the government was carrying out a consultation process with Indigenous communities on an amendment to the ATSIHP bill that 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. Senator Hill also assured the Senate that this amendment bill would be debated in the parliament as soon as the consultation process was completed. From the information that is currently available, it appears there was no such consultation process at the time that statement was made and there has been no consultation on a broad ATSIHP amendment bill carried out with Indigenous communities since then. I believe this is outrageous.

The second reason why limiting the Commonwealth’s involvement in Indigenous heritage protection to the EPBC Act regime is problematic is the way in which the national and Commonwealth heritage lists are being administered. As far as the National Heritage List is concerned, it appears that a place of significance to a particular Indigenous community will not be eligible for inclusion on the Heritage List unless it can be established that the place is important to the broader Australian community—for example, because it is of archaeological, anthropological or scientific interest or because it marks a significant event in colonial or post-Federation history. By establishing these stringent criteria, the government has ensured that the vast majority of culturally significant Indigenous heritage places will not be and cannot be included on the National Heritage List, and those few that are will not be sites that are of the greatest value to Indigenous Australians.

Let me put it clearly and simply: sites that are of the greatest traditional cultural significance to Aboriginal people are by definition significant to local and regional groups—the people whose land it is and whose dreaming stories and trails are woven through these sites. Traditional cultural heritage is about a connection to the land and to the stories that give a sense of a place’s meaning. There is no way that a sacred site can be of national significance. It cannot be of significance to all Aboriginal and Torres Strait Islander peoples when there is clearly no way that the majority of them have ever visited a site on the other side of the continent or have a spiritual connection to it. It still means this site is important to the local group, however.

There may be a case for some few modern sites of cultural significance to arguably have significance to all Indigenous Australians nationwide because of their involvement in the national political struggle for citizenship, recognition and land rights—for example, the tent embassy in Canberra. But we have seen very clear signals from the government that they are not the least bit interested in recognising this type of cultural heritage—probably, I would say, because it underlines their ongoing failure to address these issues of recognition, representation rights and equality. This highlights a further problem that applies to both the national and the Commonwealth heritage lists, and that is the manner in which the Minister for the Environment and Heritage can exercise statutory discretion to stall or block the listing of Indigenous sites that meet the listing criteria.

As the Greens predicted in the debate concerning the heritage amendments to the EPBC Act, the listing processes have become highly politicised and the minister has demonstrated an unwillingness to list places that are politically contentious. The decision-making process under the EPBC Act in relation to Indigenous heritage protection in this way ultimately reflects another example of white people making decisions about black issues and values. The apparent priority that is being given to places that relate to colonial and post-Federation history suggests that the government is not concerned about Indigenous heritage or at the very least sees it as a low-order issue.

I am concerned that the timing of the ECITA committee inquiry into this bill was such that we were unable to obtain substantive Indigenous community submissions or to enable adequate community consultation to properly assess the level and substance of community concern about the bill. This issue has been particularly acute during this inquiry due to the reduced capacity within Indigenous communities in recent times to be able to participate in these processes, consultation fatigue and the requirement for submissions to be turned around quickly so late in the year last year. One of the fundamental principles of Indigenous community consultation is allowing sufficient time for discussion and decision making to take place. Unfortunately, due to the time constraints of this committee they were not able to have this level of consultation.

The Evatt report undertook a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 10 years ago, in 1996. It is unfortunate that a decade has passed without significant action being taken. Elizabeth Evatt clearly indicated that the legislation was inadequate in the protection it provided for Aboriginal and Torres Strait Islander heritage as well as in the extent to which it involved Aboriginal people in the decisions that are made under the act. I am concerned that what was a very comprehensive report that made some very sensible and extremely valuable recommendations relating directly to the title of this bill has not been addressed. It is clear this bill as a whole does not address the Evatt report’s recommendations in any real way, and there is no evidence that any other efforts on behalf of the government are being made to address these major recommendations.

The main recommendations of the Evatt report included: respecting customary restrictions on information, including gender; protection from disclosure contrary to customary law restrictions; guaranteed access rights to sites of significance; minimum standards for state and territory cultural heritage laws—which is particularly relevant to the bill that we are discussing now; protection of all aspects of Indigenous heritage, including intellectual property; and ensuring decisions on a site are determined by Indigenous people based on the intensity of their beliefs and feelings of significance. They are just some of the recommendations.

The federal government should fulfil its previous commitment to consultation with Aboriginal and Torres Strait Islander communities on the recommendations of the Evatt report. It should fulfil its previous commitment to review the ATSIHP Act with a view to introducing a broader ATSIHP amendment bill within the current term of parliament.

While the Greens agree that this bill may deliver greater certainty for the exhibition of artefacts held in overseas collections, it is entirely understandable that many Indigenous communities would not consider the ability to view behind glass in a museum what they see as stolen items as any substitute for the loss of this heritage. It is important to note that there is increasing international activity around the return of cultural artefacts. Recently, we heard media reports about how the government of Italy is now suing what is arguably the wealthiest museum in the US. Within this changing international environment, it would be an opportune time for the government to revisit this issue. We believe more must be done to pursue the return of these precious and sacred artefacts from overseas.

Concerns were raised with me and with the committee inquiry by the Central Land Council regarding the impact of the sunset clause in this act. Senator Carr also alluded to that. This would effectively see heritage protection declarations made by the minister under sections 10 and 12 automatically cease after 10 years. While these concerns were raised in the majority report of the committee, it is our opinion that bringing them to the attention of the minister is not sufficient, as it will not guarantee in law an effective response and leaves the door open for future ministers to ignore or abuse this oversight. We do not believe the minister wants to be involved in this level of administrative trivia. I am proposing a simple amendment to this bill to exempt it from the sunset clause in the Legislative Instruments Act, which is in line with what has been done for many other pieces of legislation. This would ensure that existing declarations do not have to be remade.

I am also concerned about the enabling of state administration of Aboriginal heritage protection in Victoria. Serious concerns were raised by Indigenous communities in Victoria about the substance of the proposed state legislation and the impact that handing this legislative power back to the state will have on Aboriginal communities in Victoria. These concerns included the lack of appropriate and adequate consultation that was involved in the drafting of the Victorian legislation. It also included the manner in which it excludes some traditional owners and existing Aboriginal organisations from the decision-making processes, which seems likely to have the effect of overriding their ongoing role as traditional custodians of their heritage.

The Yorta Yorta submission raised serious concerns that the draft Victorian legislation imposes an Aboriginal heritage council which is appointed by the minister. It also imposes a system of registered Aboriginal parties that do not necessarily reflect existing community structures, decision-making processes or recognised traditional elders. This undermines existing community structures, agreements and decision-making processes and could create conflict between community leaders who are included in and those excluded from the council. The state heritage protection legislation effectively sidelines Indigenous involvement in decisions about cultural heritage to a purely advisory role and increases the ability for Indigenous people to be played off against each other.

Existing community-appointed Aboriginal heritage inspectors and cultural officers who have invaluable knowledge, experience and expertise in the threats confronting their cultural protection are losing their jobs. Concerns were raised at a community meeting I attended about the way in which the proposed structure of the Aboriginal heritage agreements and cultural heritage permits takes away any right of veto over development proposals and creates potential conflicts of interest for the state government on proposed developments.

I appreciate that I am discussing the impacts of proposed state legislation, and that is, prima facie, a case for uniformity for all states and territories having equal control over their heritage issues. However, I am concerned that handing over responsibility to Victoria effectively means that the Commonwealth is failing to meet its heritage obligations to the Indigenous peoples of Victoria. The Commonwealth has an obligation to ensure that Indigenous heritage will be adequately protected before it devolves responsibilities to Victoria. The Commonwealth has both legal and moral obligations to protect Indigenous heritage that arise from international agreements, the Australian Constitution and the future nature of the Australian political system.

The ATSIHP Act was intended to act as a fall-back statement for situations in which states and territories were not ensuring their protection. I am concerned that the ultimate effect of enacting this bill without ensuring that the proposed Victorian legislation meets Commonwealth and community expectations would be a diminution of the protection of Aboriginal heritage in Victoria. I have therefore proposed another amendment that will ensure a review of that legislation to ensure that the Victorian legislation is meeting its obligations and the Commonwealth’s expectations. I will be pursuing these two amendments in the committee stage.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

We have, I think, about 45 seconds left in this debate. In the time available can I thank honourable senators for their contribution. I will commence the summing-up speech. The Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] reflects the Australian government’s commitment to protecting Australia’s heritage and ensuring that Australians benefit from appropriate international cultural exchanges.

Debate interrupted.