Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

This is an important bill and it brings to light again the responsibility we have for protecting the Indigenous art of this great nation. Amongst other things, the bill moves to ensure a certificate can be issued to owners of Australian Indigenous art pieces overseas, if that art is brought to Australia to be put on show, to have the artwork returned overseas because the owners are concerned that it would be confiscated in Australia and returned to Indigenous owners. This will simply mean that the artworks are available for Australians to see.

With my colleague Senator Siewert I have recently been to the Burrup Peninsula near Karratha in north-west Western Australia. It brought home to me the extraordinary richness of the Aboriginal art heritage in Australia. One thing I was not prepared for, though, was to find myself, as an Australian who thought he had a fairly good awareness of that richness, in what is arguably the world’s greatest rock art site. I had no idea that on this peninsula, which is some 22 kilometres long, and on the 40 or so islands which are next to it—in fact, the peninsula was an island until the bridge was put across in 1962—there are some 500,000 to one million rock art depictions, or petroglyphs. When you get onto the hilltops, which are strewn with boulders, and accustom yourself to looking for the magnificent, creative human heritage that is there, these rock artworks seem to be everywhere. I cannot describe them with anything like the justice they deserve but, helped by experts from the local communities as well as the National Trust of Western Australia, I was able to at least understand the magnificence of the complicated depictions of human faces, which I would have thought had some relationship to the Mayan or Aztec periods, except that they came thousands of years later. These Aboriginal artworks preceded them by millennia. These artworks may be 20,000 to 40,000 years old, and they are still sitting on the Burrup Peninsula.

Other works which span the era of these Aboriginal depictions in the rock—again, I am talking about hundreds of thousands of them in one confined area of this nation—include a number of Tasmanian tigers, or thylacines, which have been extinct on the mainland for thousands of years but were part of the world of the people living on the Burrup Peninsula during the last ice age when, far from being on the coastline, it was probably 80 kilometres inland, because the sea had receded as the ice built up at the poles. There are depictions of plains-wanderer birds just as I have seen them wandering on the Australian plains with their heads up—the statuesque walk that they have—and depictions of kangaroos and smaller marsupials. My host pointed out a kangaroo with spots on it and said, ‘We think this may be an extinct kangaroo which had spots on it like the thylacine.’ Of course, when you collect skeletons of extinct kangaroos, you do not see the coat, but here it is depicted on the rock by the people who lived with these creatures thousands of years ago.

There are pictures of men, women and children and a magnificent depiction a couple of metres high of maybe a dozen men climbing on both sides of what looks to be a pole or a tree. There are depictions of whales and of nets catching what may be dugongs. You can see, as the seas came in and this piece of Australian geography moved from being inland to being closer to the shore—and now it is surrounded; what were the inland mountain tops are now the islands—that the rock art went from being of marsupials and inland birds to sea creatures: turtles, whales, fish and crabs. They are fantastic drawings by people who were representing their world on the rocks. We are told that they were made maybe thousands of years before the ancient drawings at Lascaux in France, which are World Heritage listed and draw so many visitors that they have had to re-create the cave next door so that the very presence of people breathing does not deteriorate the artworks.

Here comes the killer punch: since 1962, Burrup Peninsula, or Dampier Island as it was, has been ‘developed’ for the export of iron ore by Hammersley and, more recently, to bring gas onshore from under the ocean for processing into liquid petroleum gas for export. This has entailed an industrial implant on the Burrup Peninsula, and it is my sorry duty to report to this parliament—unless I am wrong, it has never heard this before—that that has entailed the destruction of thousands of the rock artworks of millennia ago which ought to be World Heritage listed.

I am told—I have spoken with Woodside, which proposes a large development further on the peninsula which cannot be had without the further mass destruction of these petroglyphs—that this is a process that is encouraged by the Western Australian government. In fact, because the Carpenter government in Western Australia and its antecedents have invested millions of dollars in infrastructure on the peninsula, work has to go ahead there.

Here is the extraordinary thing: just down the way from Karratha, which is the town built for these developments—mercifully not on the Burrup Peninsula but a little way across on the mainland—is the Maitland industrial site where industry could be developed. There is some argument about gas coming ashore and whether it would involve the West Intercourse Island, which has rock art on it. I am told that it does not have to. The Maitland industrial site on the open plains where there are no rock art sites at all is empty. I am told that BHP has gone up the coast to Onslow for its new development and that this is not going to impact on what is the world’s greatest rock art site.

In speaking with Mr Gary Gray from Woodside a couple of months ago after the Burrup Peninsula had been drawn to my attention, I asked about Woodside’s proposals and pointed to the alternatives. I have gained no response from Woodside which would indicate that they are going to take up the alternatives. In fact, I got the indication that the Western Australian government was so intent on making good its investment that it wanted Woodside to go onto the Burrup Peninsula and further desecrate this astonishing part of global human heritage. Gary Gray asked me if I would like to speak to Woodside’s board. I said, ‘Let me first go with Senator Siewert to see the place and then I would like to do so.’ Having come back, I have asked to see the board and suddenly their time is taken up at all their board meetings now until the end of this year and they cannot see me. I will appeal to them again to change their mind on that.

It is incumbent on this parliament and the Minister for the Environment and Heritage, Senator Ian Campbell, to make sure that the Western Australian government’s dereliction of its duty to its state, to this nation and most of all to first Australians, which entails it promoting the further destruction of this World Heritage, is not allowed to proceed. The Howard government will have to make this decision if the Western Australian government is not good enough to do so. I am hoping to talk with Minister Campbell about this later in the week. Any modicum of commonsense, of pride in our nation or of respect for global human heritage would say that there is no way you can put in a liquid petroleum gas processing factory that would erode this astonishing repository of human heritage—all the more because there are good alternative sites which do not involve that destruction.

This is destined to become not just a local issue but a national and an international issue. What would we say if we heard that the Blair government in Britain was to say of Stonehenge, which is a much younger and newer site than Burrup, ‘We will keep 60 per cent of it; you can knock off the right-hand 40 per cent’? This is what the Carpenter government is saying about Burrup. They are going to protect 60 per cent—that is, they are going to allow 40 per cent to be destroyed. What would we say about that applying to Stonehenge? The world would be in turmoil about it. What indeed would we say if the Mubarak government in Egypt suddenly declared that there were three big pyramids so one of them could go because they needed rock for building highways or dams? Of course, there would be huge international outcry about it. But in Western Australia, the world’s greatest rock art site—unless my attention is drawn to something better—is being treated in that fashion. The government says that 40 per cent can go and we can keep 60 per cent. I appeal to all senators and to the government, through the minister, to act urgently to acquaint themselves and ourselves with this extraordinary national heirloom so that we do not allow it to become an industrial site but rather protect it for this nation and for the world for all time.

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

I would like to express a view on behalf of the Labor Party on this amendment, which has been moved by the Australian Greens and seeks to have a review—

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Carr, the amendment has not as yet been moved.

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

Then what are we doing in the committee stage?

The Temporary Chairman:

Senator Brown took the call and he has been speaking. I am sure that Senator Siewert will be seeking to move that amendment.

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

I will be seeking to move that amendment but there are some points within the legislation, particularly relating to Senator Abetz’s comments just previously, that I would like to clarify before doing so.

The Temporary Chairman:

Senator Carr, you can speak to the foreshadowed amendments and to the bill generally.

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

I will indicate the opposition’s position on this foreshadowed amendment, which seeks to establish a review in two years time of the operations and the effectiveness of the proposed transfer of administration of Aboriginal heritage in the state of Victoria to the Victorian government. I put that in the context in which the opposition has already expressed its profound disappointment at the inadequacy of this legislation. I put it in the context of a minister, Senator Ian Campbell, who again and again has demonstrated his incompetence, his dereliction of duty and his obsession with playing political games with these heritage questions. The biggest argument in favour of having this matter transferred to the Victorian government is the current minister, because of his fundamental failure to carry out his responsibilities. I have got no doubt that a great deal more will be said about that question.

We were told three years ago that this piece of legislation was critical and urgent, that it was going to contain some new forms of a higher level of administrative instruments and that it would be put before the parliament. Yet it is only now being considered in this chamber. Three years to get to this stage! You have got to ask yourself: what is the level of political incompetence? How low will they go on that side of the chamber in dealing with so-called urgent matters? It is so urgent that it has taken three years to get to this point.

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The Victorian government sought this.

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

The Victorian government sought the return of this regime, and it has taken you how long to get there? How long does it take you to do these basic tasks? You do not know what you are doing. You see political advantage in playing with these questions of Indigenous affairs. You believe there are votes in winding up opposition in the community and playing base political games with the fundamental questions about the cultural heritage of this country—heritage that belongs to all of us and should not be appropriated for the political interests of the government of the day.

The legislation seeks to do some basic things about providing greater certainty for international cultural loan arrangements, which clearly we all support. It also seeks to transfer back to Victoria responsibility for the heritage administration for that state, which, given the request from the Victorian government, of course the opposition supports. But, equally, a review was undertaken 10 years ago and no action followed from this government, to the point now where the government has acted by putting forward a bill without proper consultation with Indigenous communities and without a proper process of involving people. It has organised it behind closed doors, seeking to extract maximum political advantage for its own direct, narrow interests.

We have recommendations from the Senate committee which highlight the gross inadequacy of this bill and the failure of the government to fulfil its previous commitments to have consultation and to address all the recommendations of the Evatt report. What have you got? You have a situation where there is a partial examination of those recommendations, but a situation that will allow the sorry record of this government to be continued. There are opportunities here for the government to seek to continue to take political advantage of Indigenous people at the political whim of Senator Campbell to pursue his incompetent management of the National Heritage List. We heard time and time again what actions he was going to take. He is one of the greatest ‘gonna’ ministers that we have in the Commonwealth. He is always ‘gonna’ do something. If it is not parrots it is some other device, like mountain cattlemen, that he wishes to pursue for what he sees as his narrow political objectives. Is it any wonder that everyone now is awake to him?

What we see here are the basic questions. For instance, think about Wave Hill. It is 31 years since the historic events at Wave Hill. It was the first example of the way the land rights movement developed in this country. It has been 31 years, and the minister says he will do lots of things but nothing happens. Think about the tent embassy site. No matter what you think about the specifics of the tent embassy, no-one can dispute its historic significance. I think I said 31 years; it is probably closer to 40 years now since the Wave Hill walk-off. And what is the government doing? Nothing; a lot of talk. But it will not act. You can think about 16 other sites on the World Heritage List where a similar pattern emerges. The government says it will do certain things, but nothing actually happens.

We are being asked to consider the government’s attitude in a context where it is in fact returning the heritage administration to the government of Victoria. I know the minister, Mr Gavin Jennings. I have discussed this matter with him. In fact, I know how long ago the request was put in and how long it takes for this government to respond to these matters. I know the capabilities of that minister, and I know the attitudes of the Victorian government. Given those circumstances, I find it extraordinary that the Greens would seek to have a review in two years time of the operations of that new regime. I think it creates a historic anomaly. The Victorian government wants the matter fixed; it deserves an opportunity to have it fixed, and in my view the amendment is unnecessary. It is apparent to me that there is some confusion within the Greens, having regard to the arguments that I have seen relating to the amendment to review it in two years time. Given how long it has taken to get to this stage, I think that is inappropriate.

It strikes me that there are many other substantive matters that were canvassed in the Evatt inquiry and that it would be timely for the Commonwealth to look again at having a comprehensive national review of the administration of Indigenous heritage protection, but it would not be appropriate to examine just one state. If we are going to look at the operation of the national Indigenous heritage program then it should occur right across the country. We should get a truly national picture, not the inappropriate, partial review which is suggested by this proposed amendment.

I come back to the fundamental problem, and that is the gross inadequacy of this government when it comes to the question of national heritage, the appalling record of this minister and his blatant and repeated efforts to intervene in a politically partisan way to seek short-term partisan advantage at the expense of the national estate. He is doing this country a huge disservice. I might even suggest he is probably doing his own government a disservice —not that he would take advice from me on that score. Frankly, it is an extraordinary situation where the authority, the credibility and the integrity of the administration of national heritage in this country are put into such disrepute by such an incompetent, partisan and gullible minister.

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

I would like to clarify a number of points before I move my amendments, if that is acceptable.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Go for it.

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

I will. Senator Abetz referred to a review of the act. I also draw attention to the government’s Environment budget overview 2006-07, where the government has apparently allocated funds and committed to a review of the act. I am seeking some further information as to the extent of that review, when it is going to start, the amount of resources that have been allocated, what the terms of reference are, how long it will take, what form it will take, who will be carrying it out, who will be consulted, how extensive the consultation process will be and whether it is intended to be a public review. I would very much appreciate those clarifications.

As Senator Carr pointed out, the Evatt report looking into this matter is 10 years old. Former Senator Hill, when the changes were made to the Environment Protection and Biodiversity Conservation Act in 2003, committed to a review and to comprehensive amendments to the act. Bear in mind that when this act was first brought in it was always seen as a stopgap act. In fact, it had a sunset clause which was removed when the act was not significantly amended previously. I am wondering if it is possible to get some outline of the extent of the review.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Siewert, do you wish to move your amendment now or are you seeking clarification?

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

I was hoping that somebody from the government could outline the provisions of the review, seeing as it has been committed to in the budget papers and Senator Abetz made reference to it in his statement previously.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I will be able to provide some information on that, but before I do so I would like to respond to the very provocative comments by Senator Carr on a bill on which I have been advised there is a general consensus. There is a view that the Victorian government is pretty supportive of this, so Senator Carr decided to get up and launch—I would have to say, not without precedent in Senator Carr’s role—a pretty nasty attack on my colleague Senator Ian Campbell. I would make two points. The first is that I think Senator Campbell is an excellent minister for the environment and a great activist minister.

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

What about your brother?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I will not say he is the best minister for the environment we have had because of course my brother, unlikely though it may be, may well be tuned in to this broadcast. Let me make the point that Senator Ian Campbell is doing a superb job in that portfolio and I think the activism of Senator Campbell is not always but generally welcomed by a significant number of people.

The second point I would make is that the Victorian government spends a lot of time thinking about how it can spin an issue but one thing it is unable to do is actually get out and sell this concept of wind farms to local communities. As an observer of the scene, I would have to say that the Victorian government has had great trouble in selling the wind farm message. My lesson is that in politics it is always a big help to try to take the community with you—not try to impose things the way the Victorian government so often tries to do. I would urge the Victorian government, rather than indulging in abuse and getting Senator Carr in this chamber to launch an unprovoked attack—

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

Unprovoked?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Quite unprovoked. The debate on the bill, as I understand it, was going pretty smoothly, but we had an unprovoked attack from Senator Carr. It would be well worth the Victorian government thinking about how it can more effectively sell its message to local communities. The Bracks government is a government which, to my mind, is losing touch with the community. In fact, it lost touch a long time ago, but I think the wind farms issue has highlighted that.

Senator Siewert, returning to your question, the information I have received from my advisers is that the government made a commitment to progress legislative reform of this act and remains committed to that. This bill is a step towards that reform. I am further advised—and this refers to one of the matters Senator Siewert raised—that consultation with respect to these reforms will continue with the Indigenous industry and governments. I think that should give Senator Siewert some comfort. I am further advised that the department has allocated resources to progress reform and consultation in the coming year.

This is a consultative government. We have always been a government which has been prepared to get out and to talk to people. I think even Labor senators would concede that I have a reputation for being a consultative minister and one who listens. I hope, Senator Siewert, that that deals with your issues.

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

I am sorry to disappoint you but no, it does not. There was specific reference to a review of the act in the budget papers, and Senator Abetz made specific reference to it. You could be mistaken, and maybe I am mistaken, in reading this particular budget document to imply that in fact there were specific plans to have a specific review of the act. I quote:

The Australian Government will engage in further consultation with Indigenous groups on reforming this legislation to provide a new national scheme that will ensure protection of Indigenous areas and objects to the best contemporary standards.

It goes on to state:

The primary role of state and territory laws and the views of Indigenous people and other stakeholders will be central to this reform.

Maybe I am mistaken but I think anybody interested in heritage and heritage protection would read that to mean that the government had specific plans to review this act—a review that is desperately needed. So I ask again: what process has the government put in place to carry out this review, since it does appear that there have been resources allocated for such a review?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, I am not sure that raising your voice adds to the strength of your argument. The government indicated that it is reviewing the act. This is an internal government review but in the process of doing this my understanding is—and I am looking at my advisers to see whether the information I have given is correct—the government will of course be consulting, as I have attempted to underline to you, Senator Siewert. One of the reasons that this government has been able to get itself re-elected is that it does have a reputation for being a consultative government. It is a government that gets out and it listens. You may have given a different order to that sentence you have read. I think you may have had in mind a major, formal review or a major inquiry. I think that was not the intention, Senator. I hope I have clarified that for you.

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

You have, and hopefully the government will bear in mind its own words when we come to the land rights act, which is the next bill we will be considering, when it talks about listening to the community and consultative processes. Can I clarify what you have said, and that is that this is proposed to be an internal review—have I understood this correctly?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Let me add further clarity to that. I have had reconfirmed that, at this stage, this is an internal review.

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

You also said that there have been resources allocated in the budget. Could you tell me what those resources are?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Yes, I said that the department has allocated resources to progress reform and consultation in the coming year, and I am seeking some advice to see whether I can be more specific. Senator, there will be an additional staff position put on and that is being progressed at present.

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

Is it possible for you to outline what the internal review procedure will be and how you intend to consult stakeholders, states, territories et cetera ?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I do not think there is any secret or any rocket science in this. When you wish to consult you contact the relevant people and those contacts will be made, Senator. I do not know how much more specific you would like us to be, but there are a number of stakeholders—there are governments and there is the Indigenous sector involved—and I am assured by my advisers that the department will be contacting the relevant people to seek their input.

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

Could I ask, Mr Temporary Chairman, at what point are we actually going to have an amendment moved? This is entertaining and I appreciate that the government has such a poor record to defend here that its defences should be so weak. The minister says that he is a consultative minister. I note in the paper this morning that he said he personally was a consultative minister. I noticed this article in the paper this morning:

Two peak visual arts bodies have attacked federal arts minister Rod Kemp for giving a $2 million artist training contract to the Australia Business Arts Foundation without a tender.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

How much?

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

A $2 million contract without a tender to the Australia Business Arts Foundation. The article continues:

So when the minister tells us he is going to have an internal review by one officer, a secret review by one officer after the fact, you would think that there is reason to be a little concerned. I do think there is a need for a national, comprehensive assessment of the administration of the Indigenous Heritage Program in this country, but not a secret, grubby, behind-closed-doors little arrangement which Senator Ian Campbell can manipulate to suit his particular, personal, Liberal Party vote-buying exercises.

That is the real question that I think needs to be addressed here. The officers have taken a bit of a while to convey that information to the minister. He obviously has a hearing problem. Clearly, the message is that the plan here is a secret, behind-closed-doors review where you talk to people who you have determined in advance will give you the answers you want to hear. ‘Appropriate’ people does not mean everybody; it means the ones you want to get the answers from and who will give you the answers that you want to hear. We have a circumstance here where I think it would be appropriate that the amendment was either moved or withdrawn and we moved on. I think that, given the circumstances that the government has tried to put to the chamber, at the moment there is really no point in spending any more time on this because the government’s position is so pitiful.

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

I am trying to get the detail of the review that is proposed, because I think it is so important. But I think Senator Carr has done quite a nice little summing up of the poor state of the review that will be undertaken. I seek the guidance of the chair, because Senator Abetz specifically addressed and made comments about one of my amendments. Before moving that amendment I would like further clarification of the government’s proposals to deal with the sunset clause. It is in fact my second amendment. Should I proceed with my first amendment and then seek clarification on my second amendment or should I seek that clarification first?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

It is nice of you to seek the guidance of the government on whether or not you wish to move your amendments. I have to say that I have been in this chamber for a long time and you are the first senator who has ever asked for government guidance on this.

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

Can I clarify? I said ‘the guidance of the chair’.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Yes. The minister has the call.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, the Greens like to adopt a more consultative, less hectoring approach. I was trying to be helpful. The advice that I have received in relation to the sunset clause is that sunsetting, as it is referred to, will only become a question in relation to those instruments that are still in effect in 10 years time. If still needed, an instrument’s effect can be extended. You look confused, Senator Siewert. I hope this is helping to clarify it for you. Also, instruments made under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act have been identified by the Department of the Environment and Heritage as requiring an exemption from the sunsetting provisions. A request has been made to the Attorney-General’s Department to include those instruments in exemption regulations made for the purposes of section 54 of the LIA.

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

What I am seeking is an assurance. My understanding, from what you have just said—although it was slightly different from what Senator Abetz said—is that that will be dealt with. You did not clarify whether that will be dealt with by regulation. I understand that there will be a regulation when you are seeking advice from the Attorney-General. Senator Abetz said that that would be done by regulation. What I am seeking is an assurance that that regulation can override provisions in the Legislative Instruments Act to ensure that sections 10 and 12 of the heritage act will not automatically cease.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

There is a request in to the Attorney-General’s to exempt those particular declarations by regulation. If that request is accepted it will proceed along those lines.

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

I am sorry, but that does not allay my concerns about this provision, because I think it needs to be done by legislation. However, my understanding is that therefore it would have to come back after 10 years for re-clarification—or does the decision made by the minister in the first instance stand?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

If it were exempted by regulation it would not have to come back. Does that clarify your position?

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

That clarifies that particular angle of it.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am glad we have scored at least a minor point.

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

I move Greens amendment (1) on sheet 4860:

(1)    Page 2 (after line 11), after clause 3, insert:

4 Public and independent review of the repeal of Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984

I highlighted during my speech in the second reading debate a number of concerns received from Aboriginal community members in Victoria about the adequacy of Indigenous consultation, the involvement of Indigenous communities in the drafting of the Victorian legislation and the manner in which it excludes some traditional owners and some Aboriginal organisations from decision making. It may in fact override their ongoing role as traditional custodians of their heritage.

The Greens do believe that there should be uniformity of legislation across states and territories. However, we are concerned about the manner in which the Victorian legislation will meet expected standards. Bearing in mind the comments made by Senator Carr about the inadequacies of the federal act, I accept those, but I do not think two wrongs make a right. I am not confused about the Victorian legislation. There are strong community concerns about the adequacy of this legislation. We believe that, even though the federal legislation is in no way adequate, the federal government and the Commonwealth have a responsibility to ensure that adequate standards are met for heritage protection.

We believe that if the Commonwealth is not prepared to hold off this legislation in order to check to see if the Victorian legislation is adequate, there should be a review of the legislation in two years. Therefore, we are proposing this amendment to have a look at whether the legislation does in fact meet minimum heritage protection standards. The amendment puts in place a requirement for a review. It also puts in place a review committee which includes people with expertise in Indigenous heritage, representatives from Aboriginal and Torres Strait Islander communities, and people with knowledge of Indigenous cultural systems. We believe that such a review would be useful in developing better heritage legislation at both state level and national level.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I will speak now, unless Senator Carr wants to speak on this amendment.

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

No. I will make my points on the next amendment. We are voting against this one.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Okay. In that case, this is a pleasant occasion when Senator Carr and I will be voting together against this particular amendment.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Marshall interjecting—

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

We voted together on a number of very important things—the privatisation of the Commonwealth Bank and the privatisation of Qantas. It was good to have Senator Carr’s very strong support for those privatisations. In fact, I actually supported Senator Carr; they were, of course, privatised by the Labor government. The point I am making is that this is not without precedent. But I can see why Senator Carr is not going to support Senator Siewert on this amendment. My advice is that this seeks to provide for review of part IIA of the act. This would, in effect, amount to a review of the Victorian government legislation. We do not think that a review of the effectiveness of the repeal would serve a substantial purpose. On repeal of the Victorian provisions, the act would apply in the same way to Victoria as it does to other states and territories.

Senators may recall that Justice Elizabeth Evatt reported on a broader review of Indigenous heritage protection in August 1996, and the government sees this as a more sensible approach. I know that this was stressed in Senator Siewert’s general comments, and I can assure you that we will continue to consult with Indigenous groups and other stakeholders about Indigenous heritage protection. I urge senators to support the bill and not to amend the bill in the way that Senator Siewert is proposing.

Question negatived.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That is amendment (1). Is amendment (2) proceeding, Senator Siewert?

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

Yes, it is. I seek one further answer to a question before I move the amendment. What happens if the Attorney-General does not exempt sections 10 and 12?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

That really is a matter for the Attorney-General. It would limit the power to make a declaration if those proposals were not accepted by the Attorney-General. If they are not accepted, I am sure that the Attorney-General will give very cogent and sensible reasons. The intention is to seek the assistance of the Attorney-General in this matter.

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

Thank you for the answer. I will be proceeding with this amendment, because that answer does not provide sufficient guarantee that declarations made under sections 12 and 13 will not be subject to the sunset clause. I therefore move Greens amendment (2) on sheet 4860:

(2)   Schedule 3, page 6 (after line 22), at the end of the Schedule, add:

Legislative Instruments Act 2003

This amendment would amend section 54, which provides that instruments made under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act be exempt from the sunset clause.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I should clarify that if exemption is not granted, as we approach 10 years it is, of course, always open to people to seek an extension of the act. Happily, I do not think I will be here; I am not sure you will be here, Senator Siewert. Senator Carr will certainly have been finished off by Senator Conroy by that time. Nonetheless, I am sure that senators at that time will, if it is needed, very closely scrutinise the debate and look at the very wise advice that has been given to this chamber.

Senator Siewert’s amendment seeks to exempt some instruments from the sunsetting provisions of the Legislative Instruments Act by amending the Legislative Instruments Act. This amendment is not needed. I am advised that the exemption that Senator Siewert is referring to has been sought through regulations to the Legislative Instruments Act. As I mentioned, the Department of the Environment and Heritage has already asked the Attorney-General’s Department to include declarations under sections 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in regulations to the Legislative Instruments Act. So these will be exempted from the sunsetting provisions, which is the preferred approach to exempting instruments under the Legislative Instruments Act. We will not be supporting the amendment.

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

The opposition will be supporting this amendment, because we believe that there are legitimate concerns, which were raised first by the Central Land Council, regarding the impact of a sunset clause, which would effectively see an automatic ceasing of those declarations after 10 years. The minister says, ‘We are going to seek to change these things by regulation.’ He has already told us that this legislation is one step on a journey which appears to be of some 1,000 miles—a process which has now been some 10 years in the development. So it is a very tiny step that he is speaking of. It is more like a crawl than a step, I would suggest. We had the Evatt Foundation saying some 10 years ago that there needed to be certain action taken. We heard from the minister—I think it was Senator Hill at the time—that urgent action would be taken.

Three years later we have this pretty inadequate, pretty miserable, piece of legislation before us which effectively leaves out a whole series of matters—and I will come back to that in a moment. It is clearly identified, and agreed, that if no action is taken there are declarations that will automatically cease after 10 years. We are supposed to rely upon the good word of this government and an incompetent minister who is obsessed with his own political fortunes and who seeks to use heritage legislation in such a way as to advance the political interests of the Liberal Party. We are supposed to accept assurances from the government that in these circumstances some other administrative actions will be taken. I think it is straightforward. There is an opportunity here for the government to put its money—and, more importantly, its votes—where its mouth is and to support this amendment.

The Evatt inquiry in 1996 made some recommendations—for instance, respecting customary restrictions on information, including gender restricted information. There is nothing in these amendments dealing with that. Other recommendations included protection from disclosure contrary to customary law, restrictions including guidelines on the kind of information that courts can seek and exemptions from freedom of information laws. There is nothing in this legislation about that. Another recommendation was for guaranteed access rights to sites of recognised significance for those recognised as being allowed to do so under customary law. There is no action on that. There was a recommendation concerning minimum standards for state and territory cultural heritage laws, including automatic blanket protection for sites which clearly fall within those arrangements. There is no action on that. The establishment of an Aboriginal cultural heritage agency of Indigenous cultural heritage bodies controlled by Aboriginal members representative of Aboriginal communities with responsibility for site evaluation and administration was also recommended. There is no action on that. Of course there was an inclusion for the protection of aspects of Indigenous heritage, including intellectual property. That is something that this government is not interested in. There have been calls for the government to fulfil its previous commitment to consultation with Aboriginal and Torres Strait Islander communities on a broad range of amendments to the act. We have already heard from the minister—they are going to consult after they have passed the legislation.

It is clear that where the Commonwealth has direct responsibility in these matters no action is to be taken. This government has had tremendous opportunities through the Aboriginal and Torres Strait Islander Heritage Protection Act but we have only seen one declaration in 10 years. There has been limited involvement in Indigenous heritage issues with regard to the administration of heritage provisions of the other important legislative instrument available to the government, the Environment Protection and Biodiversity Conservation Act. This is despite the fact that the Aboriginal and Torres Strait Islander Heritage Protection Act has much greater capacity to protect Indigenous heritage than the EPBC Act. Under the EPBC Act the government places considerable emphasis on the national significance of any particular site. This government has interpreted that to mean that a particular Indigenous community is not eligible to have its views taken seriously unless it can be established that there is general agreement within the community that there should be protection of those Indigenous communities and their heritage sites. So there are areas of extreme importance which are not given any protection in terms of the National Heritage List until such time as the local powers that be agree. That puts a veto power into the hands of people who have demonstrated time and time again their hostility to the protection of national heritage. We are told that the answer to this problem is to rely on a secret review and the government’s goodwill to change this situation by way of regulation.

If you had a decent minister or a government with a decent program actually committed to national heritage, you might be a little more tempted to take them at their word. But, given the appalling record of this minister—his incompetence; his blatant and repeated examples of taking partisan political views to protect the powers that be, particularly in the more remote parts of this country; working behind closed doors to stitch people up—you would have to say that those assurances are not worth a dob of glue. The government’s word on national heritage is not worth a dob of glue and we are told that we should rely upon them to come up with some shifty arrangement behind closed doors, some sneaky little deal, to protect this situation. Frankly, the Central Land Council has put its collective finger right on this. If nothing is done then there is an automatic cessation of declarations in 10 years. That exposes Indigenous people to the will, whims and chicanery of some of the worst shysters in this country, who are protected by the ministers on that front bench.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Again, that was a somewhat unfortunate rant by Senator Carr.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

Never! He’s never unfortunate.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I beg to differ. He is not Senator Faulkner—he is far brighter and more intelligent than Senator Faulkner, but that is not saying much, I have to say, from where we come from. I had to speak to Senator Siewert about this: the strength of the argument is not a function of the strength of the voice and the shouting that continues, nor is it a function of the abuse that can be levelled at a political opponent. I will say one thing about Senator Ian Campbell and Senator Carr: I know who my money would be on in a head-to-head debate. I have to say that Senator Campbell is more than capable of defending himself. He does it so well and so effectively. If I were in Senator Carr’s position, I would probably look around the chamber to see if Senator Campbell were here or not and then get up and abuse him. I think that is probably a bit of a tactic on your part, Senator Carr.

It was a bit hard to distinguish whether in among all those comments there was anything of substance which a conscientious minister at the table should respond to. I will make a couple of points, which may have been made before but are worth stating in case someone was deluded by the rantings of Senator Carr. The government stands by its commitment to introduce improved legislation in this area in line with many of the Evatt report recommendations. The basic principle remains—and this is worth noting—that states and territories have the primary role in the protection of Indigenous cultural heritage and the implementation of standards for accreditation of state and territory laws.

The government has consulted Indigenous stakeholders over the larger changes to the ATSIHP Act. I remind Senator Carr that Indigenous representatives were briefed on the proposed replacement in March 2004. In April 2004, the Prime Minister announced the new arrangements in Indigenous affairs. These were introduced on 1 July 2004 and implemented progressively over 2004-05. During this period, the government has progressed legislative reform through the current Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] to repeal the Victorian specific provisions, so the implication by Senator Carr that people were not bothering about this is not correct. After these amendments are finalised, consultations with Indigenous parties and other stakeholders will resume on the broader legislative change.

Senator Carr was worried that there were so few declarations under this act. I remind Senator Carr that the primary responsibility belongs to the states and the territories. In a sense, the fact that few declarations have had to be made rather suggests to me that the states and the territories are accepting their primary role in the protection of Indigenous heritage. It is worth recording, Senator Carr, that the fact that few declarations have had to be made would indicate that the states are doing their jobs more effectively. The federal act is the fallback position. I would have to closely read the Hansard but I suspect that a fundamental misunderstanding of the act was apparent in Senator Carr’s comments. Let me leave it there. The government, I am sorry to inform you, Senator Siewert, will not be supporting your amendment.

Question put:

That the amendment (Senator Siewert’s) be agreed to.