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Aboriginal and Torres Strait Islander Heritage
Protection Amendment Bill 2005
Referral and conduct of the inquiry
1.1
On 9 November
2005, on the recommendation of the Selection of Bills Committee,
the Senate referred the Aboriginal and Torres Strait Islander Heritage
Protection Amendment Bill 2005 (‘the Bill’) to
the Committee for inquiry and report by 8 February
2006.
1.2
The Committee contacted state and territory
governments, national heritage bodies, legal centres and other interested
organisations and individuals to invite submissions and has received seven
submissions, which are listed in Appendix 1.
1.3
The Committee thanks all those who assisted in its
inquiry.
The Bill
1.4
The Bill was introduced into the Senate on 12 October
2005 and proposes amendments to the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (‘the Act’) which,
as the Minister for Family and Community Services and Minister Assisting the
Prime Minister for Women's Issues, Senator the Hon Kay Patterson, noted in the
Second Reading speech:
...preserves and protects places, areas and objects of particular
significance to Aboriginal and Torres Strait
Island people.[1]
1.5
The purpose of this Bill
is to amend the Act in order to:
(a)
provide greater certainty to international cultural
loan arrangements by ensuring that declarations made under the Act cannot act
to prevent the return of objects imported temporarily to Australia with a
certificate of exemption under the Protection
of Movable Cultural Heritage Act 1986 (Schedule 1);
(b)
provide for the repeal of Part IIA and other provisions
in the Act that only apply to places in Victoria to enable the Victorian
Government to administer Aboriginal heritage protection in Victoria directly
through its own legislation (Schedule 2); and
(c)
bring the Act into line with the Legislative
Instruments Act 2003 by making amendments to clarify which class of instruments
contained in the Act are non-exempt legislative instruments for the purposes of
the Legislative Instruments Act 2003
and, accordingly, subject to its provisions (Schedule 3).[2]
1.6
The Bill also proposes
to make consequential amendments to the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987.
1.7
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 "backstop"'[3] 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'.[4]
Proposed amendments
Schedule 1 – Effect of declarations
1.8
The proposed amendments in Schedule 1 will 'help to
secure the framework for future international cultural exchanges of benefit to Australia'.[5]
1.9
Schedule 1 amends the Act as follows:
-
item 1
inserts a new subs.12(3A)
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 s.12 certificate enables a person to import
Australian protected objects for temporary purposes and subsequently to export
those objects;
-
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; and
-
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.
1.10
The provisions will allow museums and other cultural
institutions in Australia
to obtain significant Aboriginal cultural heritage objects that are owned by
institutions outside of Australia
under contractual and other loan arrangements for temporary exhibition in Australia.
Such arrangements are difficult to negotiate unless the overseas lending
institutions have the protection of a s.12 certificate.
1.11
The amendments in Schedule 1 will ensure that a s.12
certificate cannot be overridden by a declaration under the Heritage Protection
Act, as was the case in Victoria
after the staging of an exhibition by Museum Victoria.
1.12
In 2004 an exhibition entitled Etched on Bark 1854 included items on loan from the British
Museum and the Royal
Botanic Gardens, Kew. The items 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.[6]
1.13
At the conclusion of the Federal Court proceedings,[7] the injunction which restrained the
Museum from removing or permitting to remove the objects in question from Victoria
was dissolved and the Museum was able to return the objects to the lending
institution.
1.14
The proposed amendments 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.
1.15
In his submission to the inquiry, the Director of The
Australian Museum confirmed that:
The Australian Museum
fully supports these proposed changes to the legislation, as it would bring
certainty to the process of acquiring Aboriginal cultural material for loan,
exhibitions, research and Aboriginal community access from overseas cultural
organisation[s] to Australia.[8]
1.16
The Director continued:
It would place this material within a straightforward and secure
legal framework thus increasing the likelihood of successful requests for
collections to be loaned to Australian cultural organisations.[9]
Schedule 2 – Repeal of Part IIA
1.17
Part
IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 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. Under the current Act, 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. This arrangement was the result of a
request from the then Victorian Government in 1987 as it was seen to provide
stronger protection for Aboriginal cultural heritage in that state.
1.18
However, by
1996 the Victorian Government highlighted the need to revisit Aboriginal
cultural legislation. In a submission to the independent review of the
Heritage Protection Act undertaken by the Hon Elizabeth Evatt (the Evatt
Report),[10] the Victorian Government
argued that the dual regime, under Part IIA of the Heritage Protection Act and
the Victorian Archaeological and
Aboriginal Relics Preservation Act 1972, was both administratively
cumbersome and fraught with problems of interpretation:
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. [11]
1.19
The
Minister, in her Second Reading speech on the Bill, noted that in 2005 the Victorian
Government:
...wrote to the
Australian Government...to explore how this obstacle could be removed to allow
proposed new Victorian cultural heritage legislation to be put in place.[12]
1.20
Schedule 2 repeals
Part IIA of the Act which contains the Victorian Aboriginal cultural heritage
provisions and also proposes consequential amendments to the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 as a result of the repeal of Part IIA of the Heritage
Protection Act.
1.21
In relation to these proposed amendments the Bills Digest[13] records that 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 [of the Aboriginal
Land (Lake
Condah and Framlingham
Forest) Act] 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.[14]
1.22
The repeal of Part IIA will enable the Victorian
Government to administer Aboriginal heritage protection directly through its
own new legislation.
1.23
Schedule
2 Item 6 of the Aboriginal and Torres Strait Islander Heritage
Protection Amendment Bill 2005 not
only repeals Part IIA of the Act but also allows for a 12 month period before
the provisions removing the Victorian references come into force. This is to allow
the Victorian Government time to implement its own legislation. If Victorian
legislation is not enacted within this timeframe, the relevant Commonwealth
provisions which repeal Part IIA are themselves repealed leaving Part IIA
of the Act intact.
1.24
However, in his submission, the Hon Gavin Jennings MLC,
Minister for Aboriginal Affairs (Victoria)
advised that:
An exposure draft of the proposed Victorian legislation has
recently been subject to comment by Aboriginal communities and other interested
parties...Following consideration of comments and submissions received on the
exposure draft, I intend to introduce the Aboriginal Heritage Bill to the
Victorian Parliament during the Autumn 2006 sittings. However, that legislation
cannot come into effect while the existing Victoria-specific provisions of the
Commonwealth Aboriginal and Torres Strait Islander heritage Protection Act 1984
remain in force.[15]
1.25
Further, the Minister indicates that the existing
arrangements are administratively cumbersome, are not readily understood by
organisations, groups and individuals whose activities may have an impact on
Aboriginal heritage and:
... do not cater for the aspiration of those Victorian Aboriginal
people (particularly native title claimants and traditional owners) who do not
consider that their interests are represented by the organisations listed in
the existing schedule.[16]
1.26
This was a concern that was raised in other
submissions.[17] Dr
Sharman Stone,
Federal Member for Murray,
has observed that:
Unfortunately while the Victorian section of the Act (IIA) was
presumably well intended, it was very poorly conceived and drafted. It created
opportunity for vexatious claims and misuse, as well as considerable distress
as some indigenous groups, for example the Bangerang, found themselves left off
the schedule as spokespeople for the area they saw as their traditional lands.
There has been no process for such groups to challenge the schedules or to be
included.[18]
1.27
The Yorta Yorta Nation Aboriginal Corporation also
raised the question of how Indigenous people were recognised for the purposes
of heritage protection. They argued that the Commonwealth regime was preferable
to the proposed Victorian arrangements which they claimed would create ‘a
complicated system of Aboriginal Registered Parties and an ambiguous process
for determining applications for development’.[19]
Schedule 3 – Technical amendments relating to legislative instruments
1.28
The Explanatory
Memorandum states that the proposed Schedule 3 will 'bring
the Act into line with the Legislative
Instruments Act 2003 by making amendments to clarify which class of
instruments contained in the Act are non-exempt legislative instruments for the
purposes of the Legislative Instruments
Act 2003 and, accordingly, subject to its provisions'.[20] 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.
1.29
The Central Land Council raised some concerns about the
effects on certain declarations[21] made
under the Heritage Protection Act should those declarations become legislative
instruments and therefore subject to the provisions of the Legislative Instruments Act 2003 which establishes a regime for the
registration, tabling, Parliamentary scrutiny and sunsetting of legislative
instruments.
1.30
The Council notes that under sections 9, 10 and 12 of
the Heritage Protection Act, the Minister may make declarations for the
protection of significant areas or objects, after consideration of various
matters. Should such declarations become legislative instruments, under the
sunsetting provisions of Part 6 of the Legislative
Instruments Act 2003, they will automatically cease to have effect 10 years
after registration, unless Parliament resolves to keep them in operation.
1.31
The Land Council points out that:
While emergency declarations made under section 9 of the
Heritage Protection Act may only have effect for a maximum period of 30 days,
declarations made under sections 10 and 12 may have effect for any period of time determined by the
Minister. Accordingly, in 1992, pursuant to section 10 of the Heritage
Protection Act, the Minister for Aboriginal Affairs made a 10 year declaration
to protect Junction Waterhole, near Alice Springs in the
Northern Territory.
Therefore, one of the consequences of making Ministerial
declarations "legislative instruments" is that there is the potential
for declarations to cease to have effect after only 10 years, even if the
Minister has determined that the declaration should be in effect for a longer
period. Whether or not declarations will continue to have effect after 10 years
will be at the Parliament's discretion.[22]
1.32
Accordingly, the Land Council submits that ministerial
declarations made under sections 10 and 12 of the Heritage Protection Act be
exempt from the sunsetting provisions and that:
...provision be made in Schedule 3 of the Bill
for the Legislative Instruments
Regulations 2004 to be amended to include Ministerial declarations made
under sections 10 and 12 of the Heritage Protection Act in the list of
legislative instruments which are exempt from the sunsetting provisions.[23]
1.33
The Committee notes the concerns raised in the evidence
with regard to the sunset provisions and draws this matter to the Minister's
attention.
Other issues
1.34
The Committee received a number of submissions which
raised a range of related issues. Mr Ernst Willheim, ANU Research School of
Social Sciences, raised a number of concerns he has with what he considers are
'serious deficiencies' in the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984, including that:
-
the Act provides insufficient recognition or
protection of those Aboriginal traditional or spiritual knowledge or beliefs
which restrict disclosure which severely inhibits the protection of areas and
objects of particular significance to Aboriginal people;
-
the requirement for the appointment of a
reporter and the full reporting procedure whenever an application is made under
s 10 of the Act should be amended to provide that such an appointment is
discretionary;
-
the threshold test required for the making of
declarations under sections 9 and 10 of the Act, currently the same,
should be much lower when seeking a s.9 'emergency' declaration than that
required for a s.10 'permanent' declaration.[24]
1.35
The Committee notes the concerns raised by Mr
Willheim and other submitters.
1.36
The Committee
recommends:
That the Aboriginal and Torres Strait
Islander Heritage Protection Amendment Bill 2005 be agreed to without
amendment.
Senator
Alan Eggleston
Chairman
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