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Royal Assent those provisions are repealed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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