Reconciliation and Social Justice Library

1. The Bill is fundamentally flawed, and weakens considerably the protection available from the Commonwealth for areas and objects of significance to Aboriginal people. The principal defects are these:

An applicant for protection has to show that it is in the "national interest" to make a protection order, even an interim or emergency order, where accreditation has been given to a State or Territory system; this is incompatible with maintaining the Commonwealth procedure as a last resort mechanism.

The Bill provides for the accreditation of State and Territory heritage protection regimes, without ensuring that those regimes meet the strict minimum standards set out in the 1996 Report, or those established for Commonwealth procedures by the Bill.

There is no provision for Aboriginal people to exercise any control over the process or to have responsibility for decisions relating to the protection of their significant heritage, nor any provision for an Aboriginal Cultural Heritage Advisory Council as recommended.

Key issues covered in the 1996 Evatt Report[1]

2. Important problems identified in the 1996 Report were these:

The lack of clear definition of the respective roles and responsibilities of the Commonwealth and the States/Territories in regard to heritage protection leads to uncertainty and delays;

The procedures under the Commonwealth Act are poorly defined, leaving the Minister's decisions open to challenge in the Courts;

Aboriginal people have no control over and no recognised involvement in the protection of their heritage;

Confidential information relating to significant areas and objects is not protected from unauthorised disclosure contrary to tradition.

3. The principles on which the Report was based are these:

to acknowledge that the protection of Aboriginal heritage is a major national responsibility;

to maintain the main principles of the current Commonwealth Heritage Protection Act, namely,

to provide a protection mechanism of last resort, accessible to Aboriginal people in all cases where State /Territory laws do not provide adequate protection; and
to provide an effective process for the protection of areas and objects significant to Aboriginal people when they are threatened by development, including early consideration of heritage issues, effective consultation with Aboriginal people and genuine mediation or other processes whose purpose is to avoid injury to or desecration of sites;

to respect Aboriginal culture and to recognise that Aboriginal people should have adequate control over the protection of heritage, major responsibility to determine the significance of an area or object and the right to participate in decisions about the protection of their significant sites ;

to encourage States and Territories to adopt minimum standards for the protection of Aboriginal cultural heritage and to recognise and accredit their processes to avoid costly delays arising from duplication of functions.

to protect confidential information about significant areas and sites;

provide a clear decision making process under the Commonwealth Act, which will avoid court proceedings.

While some of these principles have been met, the defects in the Bill which have been mentioned will allow the Commonwealth to withdraw from its responsibilities to protect Aboriginal heritage without ensuring that States and Territories have adequate protection regimes.

Protection of Aboriginal heritage - a national responsibility

4. The 1996 Evatt Report emphasised that "Protecting Aboriginal heritage is a significant national responsibility" (para 3.2, 3.49). This responsibility is part of the ultimate responsibility of the Commonwealth for the protection and advancement of Aboriginal people under the Constitution and under Australia's international obligations to protect the human rights and the culture of its indigenous people. A further factor is that when Australia uses the heritage of the indigenous people of Australia to promote our image in the world, it should accept that it is a national responsibility to protect that heritage. The 1996 Report called for a national policy for the protection of Aboriginal cultural heritage (recommendation 3.1).

5. A basic principle underlying the 1996 Report is that the Commonwealth should provide a remedy of last resort for the protection of Aboriginal heritage where State/Territory regimes do not provide an adequate level of protection, as sought by Aboriginal people. Resort to the Commonwealth could be reduced if the primary protection available under State and Territory legislation were more effective. The Commonwealth should encourage States and Territories to adopt uniform minimum standards for heritage protection by providing for the accreditation of procedures which meet those standards. The adoption of minimum standards would improve the standard of protection at State and Territory level and reduce the need to apply to the Commonwealth for protection. Accreditation would make it possible for the Commonwealth to accept and adopt the procedures and findings of the State/Territory agencies, so that applications to the Commonwealth could be dealt with more speedily, with less duplication of function. This would avoid the costly delays now occurring in dealing with heritage matters.

6. The Bill, however, while superficially accepting the idea of accreditation, misuses it in order to limit drastically the role of the Commonwealth as a last resort mechanism, without ensuring effective protection at State/Territory level. The Bill does this by restricting the power of the Commonwealth to make protection orders to cases where national interest is established, if the application is made from a State/Territory which has accredited procedures. The explanatory memorandum makes it clear that the intention behind the system of accreditation in the Bill is to allow States and Territories

to design laws to meet their own conditions and for the Commonwealth to protect sites of national interest. Minimum standards provide a basis for improving State/Territory laws and withdrawal by the Commonwealth provides an incentive to the States to seek accreditation.

7. The Bill thus allows the Commonwealth to avoid its national responsibility to protect Aboriginal heritage as a last resort mechanism by putting new obstacles in the way of applications for protection, especially where there is an accredited State/Territory regime. It provides for the accreditation of State/Territory laws and procedures which fall well short of the minimum standards recommended in the Report and those stipulated in the Bill for the Commonwealth procedures. By adopting a superficial approach to the recommendations in the Report, the Bill undermines even the flawed protection available from the existing legislation.

A last resort mechanism: Ensuring unrestricted access to the Commonwealth

8. The Bill as it stands has completely abandoned the main principle upon which the present Act is based, and which underlies all the recommendations in the Report. That principle is that the protection of Aboriginal heritage is an important national interest in itself, and that the protection procedure under the Act should be available as a mechanism of last resort in all cases. The Bill limits severely the possibilities for seeking protection from the Commonwealth and narrows the circumstances in which the Minister may consider whether to protect Aboriginal heritage. In cases where there is an accredited State/Territory procedure, there is an onus on the applicant to show that it would be in the national interest to make a protection order, clause 39. If the applicant fails to show this, the application may be rejected. Further, the Minister may make an order only if satisfied that such an order is in the national interest, clause 45 (f).

9. The Bill thus places a new and significant barrier in the way of heritage protection. This completely undermines the role of the Commonwealth legislation as a last resort mechanism and limits the protection of areas and objects significant to Aboriginal people.

10. The insertion of a condition that protection be shown to be in the national interest is a betrayal of the object of the original 1984 Act, which was to provide protection to areas and objects which are of significance to Aboriginal people according to their traditions. It is inherent in the nature of Aboriginal society that areas and objects are significant to particular groups in particular areas. Many of the concerns about Aboriginal heritage are of local or regional concern to particular communities, for whom the issue may be of enormous significance. But the concern of Aboriginal people in a particular region or locality, though deeply felt, does not necessarily equate with a national interest. The national interest at stake is the establishment of an appropriate regime for the effective protection of Aboriginal heritage. The current Act allows for protection in all cases where the State/Territory has not provided adequate protection, without any extra condition of this kind.

11. Where the protection of a particular area or object is in itself of national or international significance, there are other legislative provisions which come into play. (This is explained in chapter 3 of the 1996 Report, paras 3.6 - 3.11). Under the Australian Heritage Commission Act 1975 (Cth) a place may be listed as part of the National Estate if its significance is because of "its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons".[2] The AHC has listed in the Register places that have symbolic and religious significance to Aboriginal people. Large cultural landscapes, such as the Arafura Wetlands, have been listed for their social and cultural values. Dreaming tracks have also been listed.

12. Where heritage has international significance, it may fall under the World Heritage Properties Conservation Act 1983 (Cth), which implements the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (WHC). These provisions aims to protect cultural and natural heritage of "outstanding universal value". Kakadu National Park, Uluru-Kata Tjuta National Park and the Willandra Lakes are on the World Heritage List. The Commonwealth Act has specific provisions protecting "Aboriginal sites" which are, or are located on, an identified property and which are of particular significance to Aboriginal people.

13. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984was intended to cover all sites and objects of significance to Aboriginal people, not just those which may also have national or international significance. It needs to be stressed that it is a matter of national importance to provide an adequate protection regime for all Aboriginal heritage, because of Australia's constitutional and international responsibilities towards the indigenous people of this country. There should be no unnecessary or artificial barriers to the ability of Aboriginal people to have recourse to Commonwealth protection where State/Territory regimes prove inadequate.

14. The realities of heritage protection under the current law are that the Commonwealth Minister is called on to intervene to protect Aboriginal sites or objects in situations where the State/Territory Minister has decided in favour of development, often in the face of independent opinion that the site is significant. As the Report pointed out (para 5.13):

The impact of the Commonwealth Act on Commonwealth/State relationships has given rise to a number of political differences. Since, in practice, applicants are expected to go through the State process before applying to the Commonwealth, most applicants seeking action at Commonwealth level have not been satisfied by the State or Territory process. The Commonwealth is asked to take a view different from that taken by the State or Territory government and, in effect, to override State law. The potential for both legal and political clash is obvious. State and Territory Governments have expressed concern that their decisions are subject to 'appeal' to the Commonwealth Minister. As the Federal Court said:

it was intended by the legislation to allow the Commonwealth Minister to intervene to protect a site in a case in which he or she takes a view of the relevant public and private interests different from that taken by the State Minister.[3]

The Broome Crocodile Farm case and the Hindmarsh Island (Kumarangk) case are examples of open political conflict between the Commonwealth and the States on heritage issues. The case of the Old Swan Brewery was marked not only by Commonwealth/State conflict but also by political conflict within the State. The existence of the Commonwealth last resort safety net and the political nature of the exercise of discretion make conflict of this kind inevitable. Reforms should aim to reduce the potential for such conflict.

15. It is necessary to distinguish between these propositions:

The protection of Aboriginal heritage is an important national interest.

This recognises the importance of Aboriginal heritage to all Australians and requires effective Commonwealth protection regimes.

A development (eg a mining project) may be approved, despite its effect on Aboriginal heritage, if the national interest outweighs the heritage interests.

This would make Aboriginal heritage a primary consideration in the development process, even though other factors may be established which are found to outweigh it in particular cases.

Aboriginal heritage will be protected only if factors are established which satisfy the Minister that it is in the national interest to do so in a particular case.

This formula, which is the basis of the Bill, gives the least protection to Aboriginal heritage and does not acknowledge that its protection is in itself a national interest.

The most appropriate reform path is not the withdrawal of the Commonwealth, but the improvement of State/Territory and local protection mechanisms, thereby reducing resort to the Commonwealth and minimising the duplication of procedures.

[The PJC[4] recommended that "in so far as is consistent with legislation of last resort, the Commonwealth statute be amended to provide for an accreditation regime to ensure uniformity of practice" recommendation2.]

Ensuring that State and Territory laws meet minimum standards, the Accreditation procedures

16. The 1996 Report considered it of great importance to increase the level of protection under State and Territory laws. The policy goals put forward by the Report included these (p xv, and recommendations 5.2 and 5.3):

• To ensure that the Act can fulfil its role as a measure of last resort by encouraging States and Territories to adopt minimum standards for the protection of Aboriginal cultural heritage as part of their primary protection regimes.
• To encourage greater co-operation between the Commonwealth and the States and Territories, and to avoid duplication and overlap with State and Territory jurisdictions by recognition and accreditation of their processes.

18. The 1996 Report suggested that the Northern Territory was closest to an effective State/Territory regime. But the minimum standards as set out in the Bill would allow for accreditation of the regimes of several States even though they fall well below the minimum standards required for protection of Aboriginal heritage. Few demands are made on States to make any changes in their current laws and procedures. The Minister must accredit a State/Territory regime if he is satisfied that these weak requirements are met. This is nothing less than an abdication of Commonwealth responsibility.

19. The purpose of accreditation should be to ensure that State/Territory regimes are effective and to avoid duplication and overlap with State and Territory jurisdictions by limiting the issues which need be considered at Commonwealth level to those not already dealt with at State level. Clauses 39 (3) and 40 achieve this by avoiding the need for a Director's report in some cases. Clause 40 would operate when resort to the Commonwealth was necessary. However, the Bill gives considerable advantages to development interests by allowing States/Territories to obtain accreditation with minimal requirements and by limiting the recourse of Aboriginal people to protection by the Commonwealth in those States/Territories to cases where they can show that protection is in the national interest. This requirement applies, even where it is clear that the State processes are not adequate (clause 45). This benefit to development is far outweighed by the disadvantage to Aboriginal people in reducing the possibility of protection and in taking away a recourse of last resort. The approach, as explained in the Explanatory Memorandum, is that the Commonwealth would withdraw from the field.

20. In addition to being wrong in principle, it is not necessary to insert a "national interest" requirement in the Bill as an incentive to States/Territories. A State/Territory could gain benefit from accreditation even without such a provision. The Commonwealth Minister would have an obligation to consult the State/Territory Minister only in those States/Territories which have accredited regimes, clause 39 (3). A State/Territory meeting appropriate standards would be more likely to have its findings accepted should there be an application to the Commonwealth. In this regard, however, the Bill allows the Minister to accept findings even from non-accredited regimes, cl 55 (1)(c). This makes accreditation seem even more a device to impose an additional condition on protection by the Commonwealth, namely, that it be shown to be in the national interest. As drafted, the accreditation regime appears to be little more than a sham. It imposes no strict conditions for determining significance and threat, and does not require Aboriginal people to have a responsible role in the protection of their heritage (clause 40).

21. The minimum standards set out in the Bill do not even require the States/Territories to meet the standards of protection and procedures laid down for the Commonwealth (see later discussion of clause 26).

22. In addition to the issues discussed elsewhere in this draft, the minimum standards proposed in the Report which are not covered by the Bill include these issues:

Provisions to ensure the right of access of Aboriginal people to significant sites on Crown land for the purposes of their protection and preservation and for traditional purposes.
(Recommendation 6.8)

Protection of historic areas; blanket protection of significant areas and objects; Aboriginal responsibility for heritage protection.

Further regulation

23. The Bill should cover all the standards outlined in the Report in sufficient detail to ensure that States/Territories must take action to comply. The States should in respect of each issue at least meet the standards set by the Commonwealth for its own procedures. The Bill should empower the Minister to make further regulations to specify the minimum standards for State/Territory legislation in even more detail.

Must exhaust remedies in State or Territory

24. The Bill also limits recourse to the Commonwealth by providing for the application to be rejected on the ground that the applicant has not exhausted the remedies available under State/Territory laws, even where those laws have not been accredited. This is quite unreasonable, and would elevate non-accredited laws to the level of accredited laws (not a very high level under the Bill in any event). It would put another barrier in the way of seeking Commonwealth protection. There is no equivalent provision in the present Act. There should be no obstacles to access to Commonwealth protection where State/Territory laws are not accredited. Such restrictions should no apply in urgent or interim cases.

25. Even where the State/Territory laws are accredited, applications should not be rejected where State/Territory procedures are prolonged or place unreasonable obstacles to the granting of protection.

Minister to consult State/Territory Minister

26. Clause 39 (3) requires the Minister to consult the views of the State or Territory Minister in accredited regime jurisdictions concerning the consequences of making the order sought. This is a benefit to those States/Territories which have accredited regimes and would presumably be an incentive to secure accreditation, as differences could arise in future between the Commonwealth and State Ministers as to the desirability of protection, even where State/Territory procedures are accredited. The purpose of the current law is to put the final responsibility for the decision where it belongs, that is with the Commonwealth. This should not be changed by the Bill.

State/Territory findings can be accepted

27. The Minister/Director may accept or not accept the findings made under the State/Territory system, whether or not it is accredited, clause 55 (1). Nor does the Minister have to accept the report of the Director (clause 43), but can appoint another person to make a further report.

Aboriginal control, responsibility and participation

28. The 1996 Report made one of its goals for reform that of ensuring that Aboriginal people participate in decisions about the protection of their significant sites and that their wishes are taken fully into account (para 2.42). Among the most important standards recommended in the Report for State and Territory regimes are these:

Minimum standards for State and Territory legislation should include the establishment of Aboriginal cultural heritage bodies with responsibility for site evaluation and for the administration of the legislation. They should:

• be independent;
• be controlled by Aboriginal members representative
• of Aboriginal communities;
• have gender balance;
• have adequate staffing, expertise and resources; and
• have access to independent advisers, eg anthropologists, archaeologists. (Recommendation 6.3)

Minimum standards for State and Territory laws should provide for assessments relating to the significance of sites and areas to be separated from decisions concerning land use. The former should be the responsibility of Aboriginal heritage bodies; the latter the responsibility of the executive. (Recommendation 6.4)

29. The Bill does not give any degree of control or responsibility to Aboriginal people and does not require that the minimum standards for accreditation of State/Territory regimes include the establishment of Aboriginal heritage bodies. Although it requires that State/Territory laws recognise that indigenous people are the primary source of information about the significance of areas and objects (clause 26 (1) (b)), this does not meet the recommendations in the Report and the aspirations of Aboriginal people for the protection of their heritage. The failure to recognise Aboriginal responsibility in this area, or in the accreditation process itself, is a glaring omission and will leave Aboriginal people with no confidence at all in the proposed legislation. There is no guarantee that the regimes now in force in the Northern Territory and Victoria would continue in their present form.

30. The system of accreditation established by the Bill should ensure that Aboriginal people are consulted about accreditation. It should also ensure that State and Territory regimes confer on Aboriginal people a responsible role in the institutions which administer those laws. It should require that bodies be established composed of Aboriginal people for the purpose of determining significance, etc. Reference should be made to the recent proposals in the NSW Green Paper on the Future Management of Aboriginal Heritage in NSW which would recognise the principle of Aboriginal self-determination in the management and protection of Aboriginal cultural heritage by establishing an Aboriginal Heritage Commission consisting of male and female traditional owners, representing regional groups.

31. Reference should also be made to Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which is specific to Victoria and was passed by the Commonwealth in 1987 in response to a request from the Victorian Government.[5] The principles on which the Act is based were developed by the Koori Heritage Working Group after extensive consultation with Aboriginal people.[6] Part IIA gives local Aboriginal communities an extensive role in the protection of heritage. The preamble to the amending Act which added Part IIA to the Commonwealth Act states the acknowledgment by the Government of Victoria of the occupation of Victoria by the Aboriginal people before the arrival of Europeans, the importance to the Aboriginal people and to the wider community of the Aboriginal cultural and heritage and acknowledges that the Aboriginal people of Victoria are the rightful owners of their heritage and should be given responsibility for its future control and management. These principles should guide the Commonwealth in exercising its national responsibility.

32. The responsibility of Aboriginal people is not only ignored in the accreditation procedures. Aboriginal people are given no role in relation to the Commonwealth procedures under the Act. The Director, or other reviewer, must have regard to the principle that indigenous people are the primary source of information about the significance of particular areas and objects (clause 57). This falls well short of recommendation 8.1 of the 1996 Report which states that the question whether an area or site should be considered an area or site of particular significance according to Aboriginal tradition should be regarded as a subjective issue to be determined on the basis of an assessment of the degree of intensity of belief and feeling of Aboriginal people about that area or site and its significance.

Providing a clear decision making process, which will avoid court proceedings

33. The recommendations in the Report aimed at achieving a better decision making process partly by separating the question of significance from that of protection The Bill appears to achieve this to some extent, though the decision as to significance is not required to be made by a body constituted by Aboriginal people. That is a significant flaw in both the accreditation provisions and the Commonwealth procedures.

[PJC supports separation, recommendation 5.]

34. The procedures need careful study to see if there may be problems. On the face of it they appear to avoid some of the worst pitfalls of the present Act. An LPO is a disallowable instrument. But is there a requirement for reasons?

[The PJC considered that reasons should be required to be published at the same time as the determination, recommendation 8.]

Further notes on the Bill

Clause 4: Main object of Act

The erosion of the principles on which the current Act is based is obvious from the stated objects of the Bill. The purposes of the current Act are to preserve and to protect significant Aboriginal areas and objects (s 4). The objectives of the Bill are limited to estblishing procedures for protection, clause 4 Only "certain" significant areas and objects are to be protected. Furthermore, the accreditation of State and Territory regimes is advanced to a main object of the Act.

Clause 5: Definitions

"Significant indigenous areas" are not defined to include historic areas, and "significant indigenous objects" do not include records and photographs of significant areas and objects. (Report, recommendation 12.3)

Pt 2, Division 1, The Director of Indigenous Heritage,

Cause 9 ff

The appointment of a Director falls short of the agency recommended in the Report, which would have had responsibility to administer the Act in all matters leading to the exercise of discretion by the Minister. (recommendation 11.2)

The independence of the Director appears to be based on the five year term of appointment. However, there is no provision for the Director to have any particular qualifications. Compare what the Report said about the qualities needed for members of the proposed agency in these recommendations.

The qualities necessary for appointment as a Member should include knowledge and understanding of Aboriginal cultural heritage issues and/or of Aboriginal customs and traditions and/or of the archaeological or anthropological significance of areas and objects in accordance with Aboriginal tradition. recommendation 11.5
The membership of the agency should include a majority of Aboriginal and Torres Strait Islander people, and should have gender balance. Anthropologists, archaeologists and others with appropriate experience and expertise should be considered for appointment. recommendation 11.6
The Principal Member should have legal experience. recommendation 11.8

The functions of mediation and reporting are to be carried out not by members of the agency (who would be paid on an ad hoc basis under the recommendations) but by separately commissioned persons. This is not a great advance on the present system.

Clause 21: Consultants

It is assumed that the power of the Director to engage consultants would include the mediators mentioned in clause 49.

Clause 23: Inspection of the Register

Confidential material should be protected, see clause 30 (4).

Part 3: Accreditation procedures, clause 24 ff.

Discussed above.

Clause 26

The weakness of the accreditation regime is clear when clause 26 is considered. No clear picture emerges of what kind of regime is necessary in the States/Territories, nor of who has responsibility for the administration of the regime.

(a) protection of significant areas and objects

The test of significance is not specified, and no process is laid down for determining that issue or who should make the assessment. There is no requirement that Aboriginal people are to have any role in the administration of State/Territory laws.

(c) advance approval

The 1996 Report recommended that consideration of heritage issues be included in the planning and development process, that Aboriginal people be involved in that process and that there should be provision for early consultation, mediation and agreements (recommendation 6.5). Clause 26 (1) (c) and (d) go some way towards this goal, but more detail should be specified.

(d) negotiated outcomes

There is no provision for a process of mediation in State/Territory regimes such as that prescribed for Commonwealth procedures by clauses 48 - 54. There is no requirement to make provision for registered agreements.

(e) protection of culturally sensitive information

The 1996 Report recommended that there should be legal protection of information provided in the course of administering State and Territory heritage protection laws from disclosure contrary to Aboriginal tradition, (without specific authorisation) (Recommendation 6.7). This is partly covered by clause 26 (1) (e). So far as the Commonwealth is concerned there are a number of provisions protecting such information. See, eg, clauses 30 (4), 49 (2) (a), 59: no right to see representation of others, 61 (3): no disclosure of confidential information, clauses 73, 74, But the States are not required to meet these specific standards for accreditation.

[The PJC also recommended that there be limited protection of culturally sensitive information, recommendation 4, cap 5, in a different context.]

(g) effective deterrents

The 1996 Report recommended criminal sanctions for damaging significant areas or objects, with adequate penalties and limited defences; provision to ensure that criminal sanctions are effectively enforced; and provision to enable Aboriginal people to act as inspectors, to monitor compliance and to launch prosecutions. (Recommendation 6.9). This is partly covered by clause 26 (1)(g), but it is not clear whether the same standard as that of clauses 69 - 70 is required in respect of State/Territory regimes.

[The PJC supports blanket protection, p 105, recommendation 9.]

Clause 29: the application

The Bill will require applications to be in writing. This is contrary to the recommendations in the Report, which aimed at keeping the procedure simple. (recommendations 10.23 10.24, pp 182, 183). The recommendations were that the application should be reduced to writing for the purposes of registration, and the written form should be acknowledged or confirmed, but there could be provision for oral applications.

Clause 31: Rejection of application in certain circumstances

Discussed above.

This clause, together with clause 62 (2), could be used to restrict applications for an EPO to situations where an application for protection has been rejected on the ground of non-exhaustion of State/Territory remedies. See notes on clause 62 (2).

As to clause 31 (3): The Report recommended that, even if information requested from an applicant was not provided, the application could be rejected only where the information already provided would not satisfy the legal requirements specified in the Act and the applicant fails to respond to reasonable requests to provide additional information. (Recommendation 10.21)

Clause 36: Minister may seek a further report

This provision, empowering the Minister to appoint an independent reviewer to make a further report, seems to be unnecessary. What is the point of having a Director appointed for this purpose, if the Minister can second guess that person? The explanatory memorandum says it would be rarely used. It should be limited to cases of new information. See note above on clause 9.

Clause 38: Minister may make LPO in certain circumstances

Clause 38 is welcome in that it limits the issues for judicial review.

Clause 39: Director to refer AR applications to Minister

See discussion above of unrestricted access to Commonwealth procedures.

Clause 40: Minister may adopt State or Territory findings as to significance or threat

Even where the State/Territory procedure has been accredited, the Minister can decide whether to accept the findings. The fact that the Minister has to consider separately whether the procedures followed by the State/Territory were sufficient underlines the inadequacy of the accreditation regime. It is in fact little more than a sham; its real effect is to bring into play the national interest condition. It does not give any particular weight to the State process unless the Minister so chooses.

The Minister may reject the State/Territory findings, inwhich case a completely new process may be initiated. Even when this occurs, the Minister still has to be satisfied that an order is in the national interest (clause 45), solely because the State/Territory regime had been found to meet the minimal standards of clause 26 and declared accredited unde clause 25.

Clause 41: Minister may require report from director

If the Minister does not elect to treat as conclusive a finding of significance or threat made under the State/Territory regime, he must seek a report from the Director on that issue. He may also ask for a report on the effect of an LPO on proprietary or pecuniary interests.

Clause 43: Minister may seek further report from independent reviewer

It is not clear why there is provision for the Minister to seek a report in addition to the Director's report. (See also clauses 36 and 56).

Clause 45: Minister may make LPOs . . .

This provision requires the Minister to have regard to the views of the State/Territory or authority thereof concerning the effect of any order on any proprietary or pecuniary interests. Under the current Act, it is the level of protection of Aboriginal heritage under State/Territory law which is important (section 13 (5)). The Minister must also be satisfied that the making of the order is in the national interest. As pointed out earlier, this is an unwarranted condition which destroys the purpose of the legislation.

Division 5 - Negotiation and Mediation, clause 48 ff

(Compare with Report Recommendations 9.1 to 9.8)

These provisions are welcome, but they do not provide for an applicant to request a mediation procedure (recommendation 9.2), or to agree to the mediator appointed (recommendation 9.3). There is no specific provision for interim protection during mediation or negotiation. Nor is there any reference to the possible use of State/Territory negotiation procedures (recommendation 9.8)

There is provision for time limits, and the parties have the right to indicate that they are not prepared to enter or to continue a mediation process, clause 53. It is not clear why the Minister retains control over the continuation of the procedure when the parties are unwilling to continue negotiations (clause 53 (4)).

Clause 51, Registration of negotiated or mediated agreement

(Compare Recommendation 9.7)

Division 6 - the making of reports, clause 55 ff

Even where a State/Territory regime has not been accredited, clause 55 (1) empowers the Director to adopt the findings under that regime for the purposes of the Report. This would allow the adoption of findings made by State/Territory bodies which do not even meet minimum standards. (See Report paragraph 8.21) One of the worst failings of the Report is that it does not impose adequate standards for State/Territory regimes.

Clause 59: No right to see representations of others

This is welcome, in that it protects confidential information and supports the provisions clause 26 (1)(b). See Report recommendation 10.29

Clause 60 : Time limits for reports

Cf recommendation 10.15.

Clause 62 Making of EPOs

Clause 62 (1) and (2) limit the making of EPOs to situations where the Minister acts on his own initiative or where the Director has rejected an application on the ground of non-exhaustion of State/Territory remedies. An application for an EPO can be made only in the latter case. This could be a serious limitation on protection. The explanatory memorandum says that "Applications will not be required for an EPO. This will effectively allow oral applications whereby applicants may seek emergency protection whil a written application is prepared." This should be expressed in the Bill.

An even worse aspect of the Bill is that even in respect of a seven day emergency protection order, the Minister must be satisfied that the protection of the area or object may be in the national interest, clause 62 (3)(c). This is not appropriate or necessary. It is far too onerous a requirement for protection at the interim stage.

Clause 62 (3)(b) requires that the Minister must be satisfied that the area or object "appears to be" significant and under serious or immediate threat. By way of contrast, the Report recommended that the standard of satisfaction for the purposes of emergency and interim declarations should be lower than that currently applying in relation to s 10 (and other) declarations. It should be based on the decision-maker having `reasonable grounds to believe' that an area or object is significant and that there is a `serious and immediate' threat to it. (Recommendation 10.11).

The Report considered that the power to make emergency orders should be vested in the agency, rather than delegated by the Minister.

Clause 63: Making of IPOs

Similar considerations apply as in the case of clause 62. The Minister must be satisfied that the application has on the face of it established, in the case where an accredited regime applies, that protection of the area or object is in the national interest. This test should not apply. It is wrong in principle, for the reasons given. It is also an impossible requirement at the interim stage for the applicant to have material ready for this purpose and is likely to frustrate the whole purpose of the Act.

Division 8 - Multiple applications, clause 65 ff

This needs further consideration. Compare with the problem outlined in the Report, para 8.35 ff and recommendation 8.8. It may be that a particular kind of mediation is needed in this case.

Clause 73: Exclusion of public or persons from certain proceedings

(Compare section 27)

This provision extends the circumstances where disclosure of information may be limited, or persons may be excluded from proceedings to those where commercial interests are at issue.

Clause 74 Public Interest Immunity in relation to certain information

Appears to implement recommendation 4.4 of the Report.

Schedule 1, Victoria

The new scheme envisages that Victoria will enact new legislation which will, in effect, substitute for Part IIA of the Act. But there is no requirement that the new legislation should provide at least the minimum standards of protection in the present Part IIA. This is a serious defect. Part IIA was the result of extensive negotiations with the Aboriginal community in Victoria. No changes should be made without a similar process of consultation, Report page 363 ff.

At present the specific powers of the Commonwealth Minister in respect of Victoria, under this Part of the Act, are exercised by the State Minister under a delegation. (This is explained in para 13.01 of the Report). Note, however, that the right to apply to the Commonwealth Minister under the general provisions of the current Act is preserved by s 8A of that Act. The threshold test for an application to the Commonwealth Minister is that an application under Part IIA has been rejected, or that such an application would not be appropriate or could not be made. The Report proposed that there be a time limit for the decision under Part IIA. If no decision were made within that time, an application to the Commonwealth Minister under the Act would not be barred.

[The PJC recommended that the Commonwealth Act not make specific provision for particular States, recommendation 1.]

It would be a serious breach of faith to remove Part IIA if there were not adequate Victorian legislation meeting minimum standards and agreed to in consultation with Aboriginal communities. Torres Strait Islanders

NOTE: There is no separate legislation for TSI, though it is understood that this is wanted.

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PROTECTING ABORIGINAL HERITAGE

Aboriginal heritage: a national responsibility

The laws protecting Aboriginal heritage are now under review. It is important to ensure that the need for reform is not used as an excuse for the Commonwealth to withdraw from the field of heritage protection. We use the heritage of the indigenous people of Australia to promote our image in the world, and should accept that it is and must remain a national responsibility to protect that heritage. Our national and international obligations make this a necessity.

This paper presents a brief summary of key issues which may arise in the forthcoming proposals to reform the Aboriginal Heritage Protection Act.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (an Act of the Commonwealth Parliament)

The Heritage Protection Act can be used to protect areas and objects which are significant to Aboriginal people according to their tradition. It can apply to any such area or object in Australia, whoever owns it and whether it is on public or private land. [Note: It does not apply to intellectual property, which is the subject of a separate study by ATSIC]

The Act does not create a right to protection

The Act works by giving the Commonwealth Minister for Aboriginal Affairs power to protect particular areas and objects significant to Aboriginal people when they are threatened by injury or desecration. The Minister can make a declaration to protect an area or object, but does not have to do so.

The Commonwealth Act is a back-up to State and Territory laws

The Commonwealth Minister will consider action only if he/she considers that State or Territory laws do not provide adequate protection for the area or object. However, State and Territory laws are diverse, and most are not considered effective by Aboriginal people. The most effective model is that of the Northern Territory where heritage protection is required to be in accordance with the Northern Territory Land Rights legislation. That legislation is also under review.

If the State or Territory laws were effective, there would be less need to use the Commonwealth Act. Where State laws are ineffective, as in Queensland, for example, Aboriginal people make greater use of the Commonwealth Act.

What sort of threats are covered by the Act?

The Act applies to threats of all kinds, including construction work such as the building of roads, bridges or dams, the entry of persons into places contrary to customary laws or traditions and the sale or exhibition of sacred objects. When an area or object is threatened in this way, Aboriginal people can apply to the Minister to protect the site or object.

The benefits of the Act

At its best, the Commonwealth Heritage Protection Act can be used by the Minister to set up a genuine process of consultation and conciliation. The Minister can make temporary protection orders to encourage further dialogue and negotiation, which may result in improved protection for the area or object.

Problems with the Act

At its worst, the Act has led to delays, confusion, litigation and expense for Aboriginal people, developers and State and Territory governments. This is partly because the Act lacks a proper procedural framework. The Minister can allow the problem to remain with the State and delay any protective action. until it is too late. Most cases where the Minister has made a declaration to protect an area have resulted in lengthy litigation in the Federal Court. The worst example is the Hindmarsh Island Bridge case, but there are other cases of this kind.

Another deficiency of the Act is that it does not give Aboriginal people any role or responsibility in assessing the significance of area or object.

Report on the Act, 1996'

A Report on the operation of the Heritage Protection Act (the Evatt Report) was presented to the Minister in 1996 after extensive consultations. It made recommendations to make the Act more effective and to overcome some of the problems mentioned above. Key points in the recommendations are these:

Encourage States and Territories to implement minimum standards of protection, while maintaining the Commonwealth Heritage Protection Act as a remedy of last resort in all cases.

Commonwealth, State and Territory laws should provide for effective consultation, mediation and dispute resolution at the earliest possible stage of any planning and development which may threaten heritage.

Ensure that Aboriginal people have responsibility for assessing the significance of an area or object, and encourage State and Territory processes which provide for independent Aboriginal heritage bodies with responsibility for such assessments.

Accredit State and Territory procedures which meet minimum standards for assessing significance of areas.

Protect confidential information about areas and objects from improper disclosure.

The significance of an area or object should be determined by Aboriginal people. The question whether the area or object should be protected should be left to the Minister.

Establish clear procedures under the Act to ensure that the decision making process is not subject to delays and does not lead to wasteful litigation.

Establish an independent Aboriginal Heritage Protection Agency.

Follow up to the Evatt Report

There is as yet no detailed response to the Evatt Report.

In December 1996 the Minister for Aboriginal Affairs announced that there would be consolation on certain principles proposed by the Evatt Report. ATSIC has been undertaking these consultations.

In March 1997, the Senate referred the Report to the Parliamentary Joint Select Committee on Native Title and The ATSI Land Fund (Chair is Warren Entsch MP). A Report from this Committee is due in April 1998.

It is expected that a Bill to implement changes to the Heritage Protection Act will be introduced in the Commonwealth Parliament in April 1998. It is likely to be referred to the Entsch Committee.

Key issues to watch for

Will the Government proposals:

acknowledge that the protection of Aboriginal heritage is a major national responsibility?

provide for unrestricted access to the Commonwealth under the Heritage Protection Act?

ensure that State and Territory laws meet minimum standards?

give Aboriginal people the major responsibility to determine the significance of an area or object?

ensure that Aboriginal people are entitled to be consulted when heritage is threatened by development?

ensure that protection of Aboriginal heritage is the first priority?

ensure that heritage issues are built into the planning and development process?

ensure the participation of Aboriginal people in that process?

protect confidential information about significant areas and sites?

provide a clear decision making process, which will avoid court proceedings?

What can be done?

Educate the community about Aboriginal heritage, its significance to all Australians and its special significance for Aboriginal people.

Make submissions to the Entsch Committee and other relevant bodies.

Press for laws which:

empower Aboriginal people in the protection of their heritage,

protect culturally sensitive information,

maintain the Commonwealth role in heritage protection and

encourage States and Territories to adopt and enforce minimum standards of protection.

Support the maintenance of the right to negotiate under the Native Title Act, which provides an important protection for Aboriginal heritage. Loss of that right would leave Aboriginal people with inadequate protection of heritage under existing State and Territory laws.

Oppose any changes to the Northern Territory Land Rights Act which undermine the regime for heritage protection now established in that State.

Press for the inclusion of heritage protection in regional land use agreements.

Consider what action could be taken to ensure that Australia meets its obligations under the ICCPR and other human rights instruments to ensure to indigenous people the right to enjoy their own culture and religion without discrimination.

Some current concerns

A challenge to the Hindmarsh Island Bridge Act (which exempts the Bridge from the 1984 Act) is now before the High Court.

An application under the Heritage Protection Act to protect fish traps in the Hinchinbrook channel is pending. The area is listed as World Heritage, but the protection of the traps depends on State law.

An application under the Heritage Protection Act in respect of Lake Victoria is pending. The Minister has requested that a report be prepared on the issues.

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Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth)

This summary describes the application of the Act to Aboriginal people.

The Act applies in the same way to Torres Strait Islander people.

Who is responsible for the Act?

The Act is administered by the Federal Minister for Aboriginal and Torres Strait Islander Affairs.

The Minister is assisted by the Heritage and Environment Section of ATSIC.

What can the Act protect?

The Act can be used to protect areas and objects, which are of particular significance to Aboriginal people in accordance with Aboriginal tradition. It can apply to any such area or object in Australia, whoever owns it and whether it is on public or private land.

How does the Act work?

The Act gives the Minister power to protect particular areas and objects which are significant to Aboriginal people and which are threatened by injury or desecration.

The Act does not provide for registration of sites, areas or objects, and does not provide any protection for sites or objects which are not under threat. Those matters may be covered by State or Territory laws.

When can the Act be used?

The Act can be used whenever there is a threat that a significant area or object will be injured or desecrated. The Minister can protect the area or object by making a declaration.

Generally, Aboriginal people should first use the protection that is available under their own State or Territory laws, before applying to the Federal Minister. The Commonwealth Act is intended to cover situations where the State or Territory laws do not give effective protection to an area or object which is under threat.

What sort of threats are covered by the Act?

The Act applies to threats of all kinds, including construction work such as the building of roads, bridges or dams, or the entry of persons into places contrary to customary laws or traditions.

How can the Act be used by Aboriginal people?

An Aboriginal person or group of Aboriginal people can write to the Federal Minister to ask for the protection of an area or object which is under threat of injury or desecration. The application should describe the area or object and explain, as far as possible,

why it is significant, and
how it is threatened.

How is the application dealt with?

In some cases, the Minister appoints a person to mediate, to discuss the issues with the Aboriginal applicants and also with the people who threaten the area. In some cases this discussion may lead to an agreement about how the area or object should be protected or how it can be used. But not all cases are dealt with in this way.

In other cases the Minister asks for a report to be prepared about the area or object. He has to consider the report and other matters before deciding whether to protect the area or object by making a declaration. In cases which cannot be settled by mediation, the Minister also proceeds by asking for a report.

How is the report prepared?

The Act sets out the matters which have to be dealt with in the report. The person appointed by the Minister to make the report will call for written submissions and will usually speak to the Aboriginal applicants and to the persons who are threatening the area or object. The reporter may have the assistance of an anthropologist or an archaeologist and may also look at material prepared under State and Territory laws.

Must the Minister protect all significant areas?

No. The Minister has to consider what is in the report and take into account the interests of Aboriginal people and others who may be affected. Even if the area or object is significant, the Minister has to consider all interests before deciding whether or not to make a declaration to protect the site or object.

How does the declaration work?

The declaration can give complete protection to an area or object, or it may limit access to the area or the use of an object in a way that respects Aboriginal traditions.

The declaration has legal effect. Failure to respect it is a criminal offence.

What if the threat is serious and urgent?

If an area or object is about to be injured or desecrated in the immediate future, the Minister can be asked to make an urgent declaration to protect the area or object for 30 days. This can be extended, but not for more than another 30 days, making 60 days in all. The Minister does not need a report to make an urgent declaration. But he or she must ask for a report about the area or object before deciding whether to make a long term or permanent order.

Some problems

Aboriginal interests may be inconsistent

How to decide what is significant

[1] Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Report by Hon Elizabeth EvattAC 1996 (ATSIC), referred to as "1996 Report" or (the Report".

[2] Australian Heritage Commission Act 1975 (Cth) s 4(1A)(g).

[3] Tickner v Bropho (1993) 40 FCR 183 at 224; (1993) 114 ALR 409 at 450, per French J.

[4] Eleventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, April 1998.

[5] The amending Act is the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987; HR Debates 25 March 1987, 1512. See Atkinson 51 ff.

[6] A Discussion Paper was published in 1985, and was the catalyst for further work on draft legislation.