Bills Digest no. 67 2005–06
Aboriginal and Torres Strait
Islander Heritage Protection Amendment Bill
2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Aboriginal
and Torres Strait Islander
Heritage Protection Amendment Bill 2005
Date Introduced: 12 October 2005
House: Senate
Portfolio: Environment and Heritage
Commencement:
Sections 1-3 and schedule 3 commence on Royal Assent, and schedule
1 on the day after Royal Assent. Schedule 2 commences on a day
fixed by proclamation. However, if no proclamation has been made
within a 12 month period after Royal Assent those provisions are
repealed
Schedule 1 amends the
Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 (Heritage Protection Act) so that
the export of objects will not be prevented if there is a
certificate in force under s.12 of the Protection of Movable
Cultural Heritage Act 1986.
Schedule 2 repeals Part IIA of the Act relating to Victorian
Aboriginal cultural heritage and makes consequential amendments to
the Act and to the Aboriginal Land
(Lake Condah and
Framlingham Forest) Act 1987. This
allows Victoria to legislate directly in the area of Victorian
Aboriginal cultural heritage.
Schedule 3 indicates which declarations under the Heritage
Protection Act are legislative instruments.
Aboriginal and Torres Strait
Islander Heritage Protection Act 1984
The purpose of the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984
is to preserve and protect places and objects of cultural
significance to Aboriginal and Torres Strait Islander peoples.
Currently the legislation provides this protection at the national
level for all states with the exception of Victoria. In respect of
Victoria the legislation operates at the state level. This means
that currently the Commonwealth delegates its powers to the State
Minister to administer the provisions under Part IIA of the Act
relating to matters of preservation of Aboriginal places or objects
in Victoria.
Part IIA effectively prevents Victoria passing its own
Indigenous heritage protection laws and makes it the only
jurisdiction not to have its own Indigenous heritage protection
laws.
The Aboriginal and Torres Strait Islander
Heritage Protection Amendment Act 1987 inserted Part IIA into
the Heritage Protection Act. Part IIA replicated the provisions of
an unsuccessful Victorian Aboriginal Cultural Heritage Protection
Bill. The second reading speech by Mr Clyde Holding then Minister
for Aboriginal Affairs explained the context of these
provisions:
These bills represent a unique and important step
on the part of this Parliament to recognise the legitimate and
traditional interests of the Aboriginal people of Victoria. It is
an opportunity for this Parliament to exercise its constitutional
power to enact legislation for the benefit of the Aboriginal people
in Victoria. Those powers are being exercised at the specific
request of the elected Government of the State of Victoria. Such a
request, in the face of an intransient, irrational and
unjustifiable stand taken by the Opposition parties in the
Victorian Parliament, necessitates the Commonwealth Parliament
taking a stand in support of the Aboriginal people who are the
subject of these Bills.(1)
The Victorian Government requesting the changes at the time was
the Cain Labor Government.
The Amendment Act of 1987 set up mechanisms under which
Victorian Aboriginal people could apply to the Minister for an
emergency, temporary or other declaration if they considered that
Aboriginal objects or places were under threat. The Minister is
also empowered to compulsorily acquire any Aboriginal cultural
property if the Minister is satisfied that it is of such
significance that it is irreplaceable and no other arrangements can
be made for its preservation. Such acquisition would carry with it
a right to compensation from the Commonwealth.
To summarise the situation once the 1987 Act was passed:
There is a Commonwealth Act [the Heritage
Protection Act] which applies to all of Australia yet the amendment
inserts a new Part, applicable only in Victoria, which provides
stronger protection for Aboriginal cultural heritage than the rest
of the Act. In fact the Australia-wide part of the Act does not
apply in Victoria unless the Victoria only Part cannot be used. It
is difficult to imagine such an instance. Secondly the Act has a
roll back clause, designed to overcome the operation of s.109 of
the Commonwealth Constitution, which seeks to preserve the
operation of protective measures taken under a pre-existing
Victorian law, the Archaeological and Aboriginal Relics
Preservation Act 1972.(2)
On 20 October 1995, the then Minister for Aboriginal and Torres
Strait Islander Affairs, Hon Robert Tickner announced that Hon
Elizabeth Evatt had been invited to undertake a comprehensive and
independent review of the Heritage Protection Act. The report was
submitted to Senator Herron in August 1996.
Part IIA of the Act was not dealt with in any detail in the
report as the terms of reference did not directly cover this part
of the Act. However, the report mentions the Victorian Government
as well as submissions from Aboriginal people in Victoria raised a
number of issues relating to the problems arising from the
operation of Part IIA.(3) The administration of the Act
under Part IIA is delegated to the Victorian Minister for
Aboriginal Affairs. Section 8A of the Commonwealth Act stipulates
that Part IIA is be used before any declaration by the Commonwealth
Minister will be considered. Evatt stated that this situation was
unsatisfactory because Victoria has no control over Part IIA and
the Commonwealth may not have an interest in revising what is a
purely a local law. (4) The view of the Victorian
Government in 1996 was that the present dual regime is both
administratively cumbersome and fraught with problems of
interpretation. Their approach is to replace Part IIA.
(5) The Victorian Government submission to the Evatt
Review also made the following comments:
The enactment of new Aboriginal cultural heritage
legislation at State level would enable the eventual abolition of
Part IIA of the Commonwealth Heritage Protection Act. This would be
consistent with the Federal Coalition policy that State legislation
should be the primary source of statutory protection for Aboriginal
cultural heritage, with Commonwealth legislation being used only as
a last resort. In principle, Victorian legislation would need to
consider mirroring many of the existing provisions of Part IIA, but
would also update and incorporate those sections of the existing
Archaeological and Aboriginal Relics Preservation Act 1972 which
are considered necessary for the effective protection of Victorian
Aboriginal cultural heritage.
It is anticipated that such legislative changes
should generally be favoured by the Commonwealth, as the enactment
of effective Victorian legislation followed by the repeal of Part
IIA would promote the role of the Commonwealth Heritage Protection
Act as a nation-wide backstop for protection of Aboriginal cultural
heritage, to be called upon as a last resort when significant
places or objects cannot be adequately protected by State or
Territory laws.(6) (7)
In 2005, the Victorian Government requested that the provisions
relating directly to Victoria be removed from the Commonwealth
legislation to enable the Victorian Government to implement its own
Aboriginal cultural heritage legislation.(8) The current
Bill will remove specific references to Victoria and the
Commonwealth Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 will then operate in
a uniform manner for all Australian states and territories. The
provisions of the 2005 Bill allow for a 12 month period before the
provisions removing the Victorian references come into force, which
allows the Victorian Government time to implement its own
legislation. If Victorian legislation is not enacted in this
timeframe, the relevant Commonwealth provisions which repeal Part
IIA are themselves repealed leaving Part IIA in tact.
The 2005 bill also provides that declarations made under the
Heritage Protection Act 1984 will not prevent the export
of objects for which there is a certificate in force under section
12 of the Protection of Movable Cultural Property Act
1986. Section 12 enables a person who wants to import an
Australian protected object (9) for a temporary purpose
or in circumstances where the person may want to subsequently
export the object, to apply to the Minister for a certificate
authorising the object s exportation. The provisions allow museums
and other cultural institutions in Australia to obtain objects
under contractual and other loan arrangements for temporary
exhibition in Australia. (10) Such arrangements are
difficult to negotiate unless the overseas lending institutions
have the protection of a section 12 certificate.
A difficult and sensitive issue arose recently in Victoria after
the staging of an exhibition by Museum Victoria entitled
Etched on Bark 1854. The amendments in Schedule 1
are the result and ensure that a s.12 certificate cannot be
overridden by a declaration under the Heritage Protection Act.
The exhibition ran from 18 March 2004 to 27 June 2004. The
exhibition notice stated that:
The earliest surviving Aboriginal bark etchings in
Australia, they are the only remaining examples of artistic work
done by Kulin men from the Loddon and Murray Rivers during the
nineteenth century. Two bark etchings have also been borrowed from
the British Museum and the Royal Botanic Gardens, Kew.
The items on loan from these
institutions became the subject of temporary declarations under the
Heritage Protection Act. The Dja Dja Wurrung Group claimed
traditional ownership of the items and their return was prevented
by the operation of the declarations. Museum Victoria had
contractual obligations to return the items to the institutions
concerned as soon as the exhibition had finished but was unable to
do so. Legal proceedings were then instituted in the Federal Court
by Museum Victoria and elders of the Dja Dja Wurrung People.
Museum
Boards of Victoria v. Carter [2005] FCA 645 20 May 2005
The items which were the subject of the court proceedings were
as stated by Justice Ryan in his judgment, two bark etchings
originating in Dja Dja Wurrung Country around Boort dating to about
1854, another bark etching dating from the 1870 s in Jupagalk
Country in the Lake Tyrell area and a ceremonial emu figure made
from river redgum and decorated with red and white ochres. The
objects were due to be returned to the British Museum and the Royal
Botanic Gardens, Kew by 30 September 2004. A number of successive
emergency declarations were obtained under the Heritage
Protection Act by the Dja Dja Wurrung Native Title Group.
Museum Victoria took action in the Federal Court to review the
decisions to make successive emergency declarations. Eight
emergency declarations were made in all.
The case involved whether the inspector under the Heritage
Protection Act had the power to make subsequent declarations after
the first declaration in respect of the same objects after the
first emergency declaration was made. The Judge took the view that
the inspector lacked the power to make the second and subsequent
declarations. The case had the effect of removing the protective
declarations that had operated on the objects.
Carter
v. Minister for Aboriginal Affairs [2005] FCA 667 923 May 2005
The applicants applied to the Minister on 12 July 2004 for a
permanent declaration of preservation under s.21E of the
Heritage Protection Act and also asked the Minister to
compulsorily acquire the objects under s.21L of the Act. Among
other things in this case, the Indigenous applicants sought a
review of the Minister s failure to make a decision about a s.21E
declaration and sought to compel him to make a decision. The
applicants were unsuccessful.
The Court also dissolved the injunction which restrained the
Museum from removing or permitting to remove the objects in
question from Victoria. It was then possible for the Museum to
return the objects to the lending institution.
Ms Dawn Casey, formerly National Museum of Australia director
and currently Chair of the Community and Industry Advisory
Committee of the Centre for Cultural Materials Conservation at the
University of Melbourne, has said in an advice to the Victorian
Government in relation to these artefacts, that in my opinion, the
impacts of such a decision would include no further loans to any
Australian museums including art galleries notwithstanding the
rarity and cultural and historical significance of the artefacts ,
the consequences of keeping them in Australia would far outweigh
the benefits. She warned that for the sake of the three disputed
artefacts, 40,000 other indigenous objects and human remains held
in overseas institutions would most probably never be seen in
Australia again Museums in Europe would cease to lend other
indigenous people s cultural material to their countries of origin,
she says. (11) Matters concerning the objects on loan
were used in a case study at a seminar run by the Institute of Arts
and Law in London. The seminar, called Art Loans: Appraising
the Loan Environment draws attention to the risks
involved in lending art overseas and singles out the bark paintings
as a case study. (12)
Aboriginal Land (Lake Condah and Framlingham
Forest) Act 1987
In 1986, the Victorian Legislative Council rejected two Bills
that would have granted land at Lake Condah and Framlingham Forest
to their traditional owners. The Victorian Government then asked
the Commonwealth to pass the necessary legislation the
Aboriginal Land (Lake
Condah and Framlingham
Forest) Act 1987 is the result.
Under Part III which deals with the management of Condah land,
the Kerrup-Jmara Elders Aboriginal Corporation is responsible for
compiling a register of sacred and significant sites on Condah
land. Subsection 16(2) requires that the register be kept in a
manner that would prevent the disclosure of its contents other than
in accordance with the purposes of Part IIA of the Aboriginal
and Torres Strait Islander Heritage
Protection Act 1984 without the permission of the governing
committee. The current Bill removes this exception. This amendment
is consequential on the proposed repeal of Part IIA.
In relation to Framlingham Forest, the Kirrae Whurrong
Aboriginal Corporation is required to compile a register of sacred
or significant sites and a similar exception also applies in
subsection 24(2). That exception is removed.
The Bill has been referred by the Senate Selection of Bills
Committee to the Senate Committee for Environment, Communications,
Information Technology and the Arts for inquiry and report by 8
February 2006. The reasons for its referral are as follows:
-
Adequacy of amendments to protect indigenous heritage
-
Do the amendments address concerns of indigenous
Australians?
-
Do the amendments reflect the changes recommended by the Evatt
Report?(13)
Aboriginal
and Torres Strait Islander Heritage Protection Act 1984
Schedule 1 item 1 inserts a new
subsection 12(3A) into the Heritage Protection Act which
provides that declarations issued under subsection (1) of the Act
seeking to preserve or protect objects will not apply to objects
where there is a certificate in force under s. 12 of the
Protection of Movable Cultural Heritage Act 1986. A
certificate enables a person to import Australian protected objects
for temporary purposes and subsequently to export those
objects.
Schedule 1 item 2 inserts a
new subsection 18(2A) which
provides that where emergency declarations are issued under
subsection (1) seeking to protect or preserve areas or objects,
those declarations will not prevent the export of objects where a
certificate is in force under s.12 of the Protection of Movable
Cultural Heritage Act 1986. The certificate authorises a
person to import Australian protected objects and subsequently to
export them again.
Schedule 1 item 3 introduces new
subsection 21EA which provides that all declarations made
under ss. 21C, 21D or 21E will be subject to any certificates made
under s.12 of the Protection of Movable Cultural
Property Act 1986 authorising the export of objects.
Schedule 2 item 6 repeals Part IIA of the Act
which contains the Victorian Aboriginal cultural heritage
provisions. Other amendments in schedule 2 remove references to
Part IIA and Victoria.
Schedule 2 item 13 repeals the schedule in the
Act that refers to Local Aboriginal communities.
Aboriginal Land (Lake Condah and Framlingham
Forest) Act 1987
Schedule 2 item 14 amends subsection 16(2) of
the Lake Condah and Framlingham Forest Act to remove the reference
to Part IIA in the Act that also removes the exception that the
contents of the Sacred and Significant sites register recorded by
the Kerrup-Jmara Elders Aboriginal Corporation will not be
disclosed other than for the purposes of Part IIA under the
Aboriginal and Torres Strait Islander Heritage Protection Act
1984. That exception will no longer exist.
Schedule 2 item 15 amends subsection 24(2) to
remove the reference to Part IIA in the Act that removes the
exception that the contents of the Sacred and Significant sites
register recorded by the Kirrae Whurrong Aboriginal Corporation
will not be disclosed other than for the purposes of Part IIA under
the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984. That exception will no longer exist. These
amendments are consequential on the proposed repeal of Part IIA of
the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984.
Schedule 3 contains technical amendments
relating to legislative instruments. Legislative instruments under
the Legislative Instruments Act 2003 are subject to the
provisions of that Act. This means that legislative instruments are
registered on the Federal Register of Legislative Instruments,
tabled in Parliament and subject to scrutiny and disallowance
procedures of Parliament.
When the bill becomes an Act, the Aboriginal and
Torres Strait Islander Heritage Protection Act
1984 will still apply to Victoria, but it will apply in the
same manner as it applies to the other states and territories.
Removal of the specific references to Victoria will place Victoria
on the same footing in relation to protection of Aboriginal
cultural property as the other states and territories under the
Act. It will allow Victoria to pass its own Aboriginal cultural
heritage legislation and the Commonwealth act will continue to act
as a nation-wide back-stop as it does for the other states and
territories for the protection of Aboriginal cultural heritage, to
be called upon as a last resort when significant places or objects
are not adequately protected by State or Territory laws.
(14)
The amendments to the Act in relation to declarations for
objects which are the subject of a certificate under s.12 of the
Protection of Moveable Cultural Property Act 1986 will
allow international institutions to lend objects to Australian
cultural institutions and ensure they are returned to the lending
institutions overseas.
-
Aboriginal And Torres Strait Islander Heritage Protection
Amendment Bill 1987, second reading speech by Minister for
Aboriginal Affairs, 25 March 1987, House of Representatives
Debates, p. 1517.
-
Neil Rees, Commonwealth Acts for Victorian Aborigines,
Aboriginal Law Bulletin No.29 December 1987 at p. 11.
-
Hon Elizabeth Evatt, Review of the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, 1996 at p. 235.
-
ibid., at p. 234.
-
ibid., at p. 235.
-
ibid., at p. 235 236.
-
In any event, the recommendations of the Evatt report were not
implemented as part of the Aboriginal and Torres
Strait Islander Heritage Protection Bill
1998.
-
Aboriginal and Torres Strait Islander Heritage Protection
Amendment Bill 2005 second reading speech Senate 12 October 2005,
Senate Hansard p. 2.
-
An Australian protected object is an object that forms part of
Australia s movable cultural heritage.
-
ibid.
-
Georgina Safe, Artefact stoush risks future loans , The
Australian, 22 October 2004.
-
ibid.
-
Senator Eggleston, Senate Selection of Bills Committee
Report, Senate Hansard, 9 November 2005.
-
Hon Elizabeth Evatt, Review of the Aboriginal and
Torres Strait Islander Heritage Protection Act
1984, 1996 at p. 236.
Moira Coombs
30 November 2005
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ISSN 1328-8091
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