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3.1 A national policy should be adopted as the basis for laws and programmes relating to Aboriginal cultural heritage at all levels of government. That policy should cover all aspects of Aboriginal cultural heritage, and should include such matters as positive support for Aboriginal culture and heritage, education of non-Aboriginal people, Aboriginal control of cultural heritage, recognition of Aboriginal customary law and tradition, and effective legal protection of cultural heritage.
3.2 There should be a body with specific responsibility for monitoring Aboriginal cultural heritage protection nationally, to coordinate laws and programs that have an impact on Aboriginal heritage and to develop and promote the national heritage protection policy at all levels of government. It should consist entirely or largely of Aboriginal people, or act on the advice of an Aboriginal-controlled body.
3.3 The body responsible for co-ordinating Aboriginal heritage protection nationally (see recommendation 3.2) should investigate whether Aboriginal heritage can be assessed on a similar basis under all Commonwealth legislation (whether general or specific) under which it is currently assessed with a view to working out how duplication in significance assessment can be eliminated.
State, Territory and Commonwealth heritage protection laws should meet standards for protecting restricted information:
4.1 Heritage protection laws should respect Aboriginal customary law restrictions on the disclosure and use of information about Aboriginal heritage.
4.2 Procedures under heritage protection laws should minimise the amount of information Aboriginal people need to give about significant areas or sites to ensure protection and avoid injury or desecration.
4.3 The laws and related procedures must ensure that customary law restrictions on information received for the purpose of administering heritage protection laws or received in related legal proceedings are respected and observed.
4.4 Heritage protection legislation should specifically provide that a claim for public interest immunity may be made for restricted information.
5.1 A goal of Commonwealth heritage protection law and policy should be the reform of State and Territory laws. This goal should be pursued by legal and political means.
5.2 The Commonwealth Government should support and encourage the process of developing, in consultation with State and Territory governments, the Aboriginal community, and other interested parties, agreed minimum standards as the basis for uniform or model laws on Aboriginal cultural heritage protection, for adoption by the States and Territories and by the Commonwealth, where relevant. Resources should be allocated to support this process.
5.3 The Commonwealth should accredit for the purposes of the Act determinations and procedures under State/Territory laws which comply with minimum standards. It should provide, where appropriate, for the referral of matters to State/Territory agencies or bodies which meet minimum standards.
5.4 The Commonwealth should accredit or recognise for the purposes of the Act decisions concerning the significance of a site by State/Territory Aboriginal cultural heritage bodies that meet the required standards and which apply definitions comparable with the Commonwealth definition.
6.1 Minimum standards for State and Territory Aboriginal cultural heritage laws should include a definition of Aboriginal cultural heritage which is at least as broad as that of the Commonwealth law. That definition should extend to areas and objects of significance to Aboriginal people in accordance with tradition, including traditions which have evolved from past traditions. It should also extend expressly to historic and archaeological sites.
6.2 A minimum standard for State and Territory heritage protection legislation is that it provide automatic/blanket protection to areas and sites falling within the definitions outlined above, through appropriate and effective criminal sanctions.
6.3 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:
6.4 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.
6.5 Minimum standards for State and Territory planning and development processes should include these elements: integration of Aboriginal cultural heritage issues with the planning and development process from the earliest stage; an effective consultation/negotiation process for reaching agreement between developers and the Aboriginal community facilitated by a responsible Aboriginal heritage body; the objective of negotiation should be to reach agreement on work clearance or site protection; legislative recognition of agreements between land users/developers and relevant Aboriginal groups; minimum disclosure of confidential or gender specific information through the use of a work area clearance approach; separate consultation of Aboriginal women; an independent Aboriginal heritage body should determine whether a site is significant and should make recommendations concerning its protection; decisions overriding protection should have regard to the wishes of Aboriginal people, should be supported by compelling reasons of public interest and be subject to accountability; procedures should be carried out expeditiously and within reasonable time frames.
6.6 The Commonwealth Government should actively encourage the adoption of the Guidelines for the Protection, Management and Use of Aboriginal and Torres Strait Islander Cultural Heritage Places, developed by Department of Communication and the Arts (Cth) by all relevant Commonwealth, State and Territory agencies and by local authorities involved in land management and decisions concerning cultural heritage.
6.7 Minimum standards for the States and Territories should include confidentiality provisions to protect information provided in the course of administering State and Territory heritage protection laws from disclosure contrary to Aboriginal tradition, (without specific authorisation). Such laws should prohibit any requirement to provide information where to do so would be contrary to Aboriginal tradition. Such laws should provide for the protection of information which must not, according to Aboriginal tradition, be disclosed to persons of one particular sex.
6.8 Minimum standards should include 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.
6.9 Minimum standards for State and Territory laws should include: criminal sanctions with adequate penalties, and limited defences; provision to ensure that criminal sanctions are effectively enforced; provision to enable Aboriginal people to act as inspectors, to monitor compliance and to launch prosecutions.
7.1 (a) The Commonwealth Act should be amended to include a provision which protects information provided for the purposes of the Act from unauthorised disclosure contrary to customary law restrictions. The Act should require the Minister to respect gender restrictions on information to which he or she seeks access.
7.1 (b) Section 20 (1) of the Act should be amended to ensure that it does not operate to interfere with the cultural and spiritual beliefs of Aboriginal people.
7.2 There should be protocols for s 10 reporters and mediators covering how they should receive and handle information subject to customary law restrictions.
7.3 The Freedom of Information Act 1982 (Cth) should be amended to provide that information about Aboriginal heritage provided for the purposes of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and that is subject to customary law restrictions should be exempt from disclosure.
7.4 The protection offered by s 27 of the Act should be extended to any court proceedings in relation to the Act or in which access is sought to information collected or provided for the purposes of the Act. The Act should also require the Federal Court in conducting proceedings in relation to the Act to take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders.
7.5 The circumstances in which a court can require an Aboriginal person or an agency holding restricted information about Aboriginal heritage to produce that information should be limited by the provision of a claim to a public interest immunity. The Commonwealth provisions should extend to proceedings under State and Territory law in relation to matters arising under the Commonwealth Act.
7.6 Section 11 should be amended to clarify that a declaration may include provisions concerning access to a site for the purposes of inspection, protection and preservation of an area and for traditional purposes.
REPEAL S 24 (3) 7.7 That subsection 24 (3) be repealed.
7.8 Penalties under the Commonwealth Act should be reviewed to bring them into line with current values.
The agency recommended by the Review to administer the Commonwealth Act should have power to initiate prosecutions for breach of declarations under the Act.
8.1 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.
8.2 Where an assessment has been made of substantially the same issue [concerning the particular significance of an area] in the State/Territory process, it should be possible to rely on that assessment in the Commonwealth process.
8.3 If a State or Territory Aboriginal Cultural Heritage Committee is constituted according to minimum standards and has the function of assessing the significance of an area according to Aboriginal tradition, there should be an accreditation process to allow that issue to be referred by the Commonwealth to the State/Territory body for consideration.
8.4 If the States and Territories do not consider establishing appropriate bodies to deal with heritage issues, the Commonwealth should establish an appropriately constituted Aboriginal Cultural Heritage Committee, to ensure that Aboriginal people are given a major responsibility in establishing the significance of a site.
8.5 The issue of significance should be considered separately from the question of site protection.
8.6 Where an assessment of significance of an area or site has to be made, it should be based on information provided by and consultations with the relevant Aboriginal community, communities or individuals and on any anthropological reports or information provided with their consent.
8.7 The opinion or conclusions of the agency recommended in Chapter 11 as to the significance of a site should be binding on the Minister.
8.8 (a) The agency recommended in Chapter 11 should develop, with the advice of the recommended advisory council, procedures to be used, if necessary, to deal with situations where there are differences of opinion between Aboriginal people as to who has responsibility for an area.
8.8 ( b) The agency recommended in Chapter 11 should report on whether there is a group to whom the area is an area of particular significance, and the degree and intensity of the belief about that place. If there are differing opinions among Aboriginal people on that question, these opinions should be included in the agency's report.
8.9 The assessment of the way in which the threatened action is inconsistent with Aboriginal tradition or adversely affects the significance of the area in accordance with tradition should be dealt with in the same manner as the question of significance.
9.1 The Act should provide for a specific mediation procedure, which should be offered to parties before a reporting procedure leading to a declaration is considered.
9.2 Mediation under the Act should be voluntary. Applicants should have the option of asking for a mediator to be appointed when they make their initial application. AN AGREED MEDIATOR 9.3 A mediator should be nominated only with the agreement of the parties. A mediator should not be the reporter unless the parties accept this.
9.4 The Act should allow flexibility in mediation and negotiation procedures and those procedures should be capable of adaptation to minimise disclosure of restricted information, and in particular, gender restricted information.
9.5 Time frames should ensure that the parties have adequate time to prepare a negotiating position but not so as to allow the procedure to result in undue delay in resolving the issue.
9.6 Significant areas should be protected from continuing injury or desecration while mediation takes place. The protection should last until mediation is successful or the time limit is reached, though a party may choose to end the process at any time.
9.7 The Act should provide for the registration of agreements reached under its negotiation or mediation processes. To be registered, the agreement must be consistent with the purposes of the Act. The effect of registration will be to give the agreement the force of a contract. Breach of the agreement would give rise to civil liabilities.
9.8 State and Territory mediation procedures that meet minimum standards should be accredited and recognised by the Commonwealth heritage protection procedure. The Commonwealth mediation process should be available if there is no accredited State or Territory process.
10.1 A modified version of the existing, relatively informal process whereby the Minister ultimately determines whether and on what terms Aboriginal heritage should be protected should be retained in preference to a more formal quasi-judicial process.
10.2 References in the Act to effective protection under State or Territory law should be consistent in language and policy.
10.3 The Act should specify that effective protection of an area or object under the law of a State or Territory means actual and legal protection of indefinite duration.
10.4 The Act should define 'threat of injury or desecration' to include active consideration by the relevant government of removal of what might otherwise constitute effective protection under the law of a State or Territory.
10.5 The agency should seek up to date information when it is considering refusing to make a declaration under s 9 on the basis that there is no 'serious and immediate threat'.
10.6 The Act should require the Minister to consult interested persons before exercising any power to vary or revoke a declaration.
10.7 The capacity for authorised officers to make emergency declarations under s 18 should be retained.
10.8 Emergency declarations under s 18 should be able to be made immediately, if necessary, where the authorised officer is satisfied as to significance and threat and without reference to whether the agency is considering or may be able to make another form of declaration.
10.9 Where an authorised officer is asked to make, or does make, an emergency declaration, he or she should be obliged to inform the agency of that fact as soon as possible.
10.10 Emergency declarations under s 18 should be able to be made for a period of up to four days (96 hours).
10.11 The standard of satisfaction as to significance and threat applying to decision-makers for the purposes of s 18 and s 9 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.
10.12 The Act should provide that the purpose of short-term (30-day) declarations under s 9 where an application has also been made for a s 10 declaration in relation to the same area (interim protection) is to maintain the status quo in relation to the area pending determination of the s 10 application.
10.13 Section 9 declarations in the form of interim protection should be capable of extension for periods of up to 60 days at a time pending determination of the s 10 application.
10.14 The agency should be required to determine an application for protection of an area under s 9 as soon as is practicable and in any event, within 28 days.
10.15 The agency should be required to report to the Minister as soon as is practicable after instigating a reporting process under s 10. A notional outer time limit of six months may be appropriate, but this should not be set in legislation. The Minister should be required to determine an application under s 10 as soon as is practicable after receiving a report under that section.
10.16 The agency should be obliged to instigate a reporting process in response to an application under s 10 unless there is a specific justification for postponing such action.
10.17 The agency should be able to defer instigating a reporting process in response to an application for protection under s 10 where there is no immediate threat to the area in question and where there is a prospect that other processes, whether under State or Territory laws or under other Commonwealth laws, will resolve an application within a reasonable time. Once a threat becomes serious and immediate, the agency should instigate a reporting process promptly.
10.18 The agency should be obliged to prepare a report to assist the Minister to determine each valid application for protection under s 10 unless the application is determined beforehand in one of the ways specifically provided for in the Act.
10.19 The agency should have power to decline an application that is frivolous or vexatious.
10.20 The agency should formally decline an application that is resolved to the satisfaction of the applicants and withdrawn.
10.21 The agency should have power to dismiss an application where it considers that the information provided to it by applicants would not satisfy the legal requirements specified in the Act and the applicants fail to respond to reasonable requests by the agency to provide additional information.
10.22 Delay in raising heritage interests, provided that there are mechanisms in place that respect those interests, should be a factor in the exercise of discretion whether to make a declaration by the agency or Minister (as the case may be).
10.23 Applications should be able to be made easily. A valid application is one that is 'made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration'.
10.24 The agency should be required to maintain a register of applications in written form: where applications are made orally, the agency should record what it is told and seek acknowledgment from the applicants of its record of the application.
10.25 Where a new basis of significance or other new information is provided to the agency in relation to an area for which there is already an application registered, the agency should clarify whether the new information is part of the previous application or is provided in support of a new application, and deal with it accordingly.
10.26 The agency should be required to take reasonable steps to identify persons with an interest (in procedural fairness terms) in whether a declaration should be made before deciding whether to make a declaration under s 9 or providing a report to the Minister under s 10.
10.27 The Act should require the agency to provide interested persons with an opportunity to make representations in response to specified notification requirements before deciding whether to make a declaration under s 9 or providing a report to the Minister under s 10.
10.28 The Act should reflect the principle that, unless expressly provided by the Act, the opportunity for interested persons to make representations in response to specified notification requirements is the only means by which they may comment on whether a declaration should be made. Any further processes should be entirely within the discretion of the agency.
10.29 The Act should reflect the principle that, unless expressly provided by the Act, there is no obligation (and none shall be implied) on the agency or the Minister to provide interested persons, or members of the public who make representations in response to a notice under s 10, with information provided in support of an application under the Act.
10.30 The Act should continue to require publication of a notice so as to allow members of the public to provide written representations as to whether a declaration under s 10 should be made.
10.31 In the context of applications for protection under s 10, the opportunity for interested persons to make representations should be provided at the same time and in the same form as the reporting process (in writing).
10.32 The Act should define the specified notification requirements as follows:
10.33 The Act should specify that the public notice contain the following information:
10.34 In order to avoid any uncertainty, the Act should provide that States and Territories are interested persons for the purpose of the obligation to notify interested persons.
10.35 The Act should provide that failure to comply with the obligation to provide interested persons with an opportunity to provide representations in response to specified notification requirements does not, of itself, result in a declaration being invalid.
10.36 The Act should provide for particular Aboriginal community groups in each State/Territory to be prescribed for the purpose of the obligation to notify interested persons.
10.37 The agency should be obliged to provide interested persons with an opportunity to make representations in response to new specified notification requirements where a new basis of significance or other new information is provided to the agency beyond the scope of the specified notification requirements already provided. In these circumstances, the Act should also provide a capacity for a new public notice to be issued.
10.38 On receiving an application for protection under s 10, the agency should consult with the relevant State or Territory agency to ascertain whether there is effective protection of the area in question and to seek any further comments the State or Territory might wish to make in relation to the application. This should be done by requesting a report within a specified period.
10.39 On receiving an application, the agency should investigate the prospects of resolving the application without the need for a reporting process, through agreement between the applicants and interested persons whose agreement the agency considers would be required in order to resolve the application (such as those whose activities pose the threat to the area in question).
10.40 The agency should inform the applicants and other interested persons of its decision to instigate a reporting process and the point at which that decision was taken.
10.41 The agency should consider the possibility of adopting other procedures to assist the decision-making process where it considers that to be appropriate. Other procedures that might be followed include: providing access to representations (subject to any confidentiality claimed) generally or as between interested persons or otherwise and providing access to a draft report to interested persons for comment.
10.42 The Act should make it clear that written records of information provided orally to the agency do not constitute representations in writing to be attached to the report.
10.43 The Act should make it clear that the role of the reporter in relation to written representations is to summarise them as they are relevant to the criteria upon which the report is to be based: the reporter should have no role in recommending or suggesting whether a declaration should be made.
10.44 The Minister should be entitled to rely on the summary of written representations prepared by the agency without being required to consider them. The written representations should continue to be forwarded with the report.
10.45 All existing avenues of judicial review should remain available in relation to decisions made under the Act.
10.46 The Act should include a provision drawing attention to the fact that reasons for decisions under the Act may be sought under s 13 of the Administrative Decisions (Judicial Review) Act 1977.
10.47 Where the Minister is called upon to determine an application by exercising his or her discretion whether to make a declaration, reasons sufficient to comply with s 13 of the ADJR Act should be provided to the applicants and other interested persons and tabled in Parliament.
10.48 Responsibility for the receipt and processing of applications for protection under the Act should be removed from the Minister's office so that it is clear that the Ombudsman may investigate and report on issues of administration arising in relation to those functions.
11.1 The decision whether or not to make a declaration to protect a site or object from injury or desecration should remain as a discretion of the Minister.
11.2 A new permanent independent agency 'The Aboriginal Cultural Heritage Agency' should be established to administer the Act in all matters leading to the exercise of discretion by the Minister.
11.3 ATSIC's current functions under the Act should be vested in the new agency.
11.4 The new agency should be comprised of a full-time Principal Member; a number of part-time Members; and a small administrative staff.
11.5 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.
11.6 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.
11.7 Members of existing tribunals should be considered as eligible for appointment as members of the agency.
11.8 The Principal Member should have legal experience.
11.9 Members of the agency, other than the Principal Member, would be remunerated on a fixed scale.
11.10 Members of the agency should be protected against liability for acts done in good faith in the same way as members of tribunals.
11.11 The mediation and reporting processes under the Act should be carried out by the Members of the agency.
11.12 The functions of the agency should include:
11.13 Members who have conducted a mediation should not take part in the reporting process, unless the interested parties agree to this.
11.14 A wide range of Aboriginal people including custodians, inspectors, wardens, agency members and others should be appointed as authorised officers for the purposes of s 18.
11.15 The agency should issue guidelines concerning procedures for the assistance of applicants and interested persons.
11.16 An Aboriginal Cultural Heritage Advisory Council should be established to advise the proposed agency and the Minister on issues arising under the Act, and in particular on the procedures to be followed and the persons to be consulted in making assessments for the purposes of the Act. This council should be constituted by Aboriginal people, in such a way as to strengthen links with local Aboriginal communities which have responsibility for heritage issues.
11.17 The agency recommended to take responsibility for the administration of the Act should deal with applications relating to objects and determine the issue of significance before referring the matter for the Minister's decision whether to make a declaration.
12.1 The Commonwealth should actively encourage the States and Territories to enact uniform national laws to prevent [regulate?] the sale and exhibition of significant Aboriginal objects. The wishes of Aboriginal people should be taken into account as the principal factor in deciding whether to consent to sale. Failing the introduction of uniform laws, the Commonwealth should enact legislation to apply where there is no relevant State or Territory law.
12.2 The Act should provide for the recognition of agreements about the protection of significant Aboriginal objects which are or were under threat, and covering their preservation, maintenance, exhibition, sale or use, and the rights, needs and wishes of the owner and of the Aboriginal and general communities.
12.3 The definition of objects which can be protected under the Act should be extended to include objects which are of significance to Aboriginal people because they record, describe or portray an aspect of Aboriginal tradition.
12.4 To fulfill its overall national responsibility for Aboriginal cultural heritage, and to underline the national importance of protecting that heritage, the Commonwealth Government should include the repatriation of Aboriginal cultural material on the agenda of its bilateral discussions with relevant countries.
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