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CHAPTER 3
The Evatt Report
Origin
3.1 On 20 October 1995 the then Minister for Aboriginal and Torres Strait
Islander Affairs, Hon Robert Tickner, announced that he had invited a
retired judge, the Hon Elizabeth Evatt AC, to undertake a comprehensive
review of the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984. In June 1996 a draft report was provided to the Minister in
the following government, Senator the Hon John Herron; and on 22 August
1996 Elizabeth Evatt submitted the final text.
Terms of Reference
3.2 Ms Evatt had been asked to respond to terms of reference [1]
in fifteen parts:
The Aboriginal and Torres Strait Islander Heritage Protection Act
was passed in 1984 under the power given to the Commonwealth Parliament
by the 1967 referendum to enact legislation in relation to indigenous
affairs. The review will examine and report on the operation of the
Act in the 11 years since its passage. In particular the review will
consider:
(i) the effectiveness of the provisions of the Act in providing protection
for areas and objects of significance to Aboriginal and Torres Strait
Islander people;
(ii) application of procedural fairness to inquiries in light of
the judgments of the Federal Court arising from the appeals currently
before it;
(iii) the effectiveness of interaction between Commonwealth and State
and Territory indigenous heritage protection legislation;
(iv) the processes to be followed by the Minister after receiving
an application for protection under the Act;
(v) the minimum requirements for information which must be included
in the applications;
(vi) how secret/sacred information should be dealt with under the
Act;
(vii) the efficacy of the reporting process under section 10(4) of
the Act and alternative processes and/or structures which could be
established to provide advice to the Minister;
(viii) the efficacy of the procedures for the making of declarations
under the Act, including the Minister's role in making declarations;
(ix) the efficacy of the time limits currently included in the Act
and the desirability of placing additional time limits on processes
under the Act;
(x) whether the Act makes appropriate provision for the protection
of areas and objects while mediation or reporting processes are underway;
(xi) whether there is adequate scope under the Act for applications
to be successfully resolved through mediation;
(xii) whether the Act gives the Minister appropriate discretion to
decide not to deal with or to defer consideration of applications;
(xiii) the development of administrative guidelines under the Act;
(xiv) the establishment of an authority, tribunal or commission and
the resources required to administer the Act;
(xv) any other matters relevant to the operation of the Act.
The review was required to report six months after it commenced.
Policy Goals of the Review
3.3 Ms Evatt has detailed the policy goals adopted by her review (pp.xv, xvi);
they were as follows:
- To respect and support the living culture, traditions and beliefs
of Aboriginal people and to recognise their role and interest in the
protection and control of their cultural heritage.
- To retain the basic principles of the Act, as an Act of last resort.
- To ensure that the Act can fulfill 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.
- To provide access to an effective process for the protection of areas
and objects significant to Aboriginal people.
- To provide a process which operates in a consistent manner, according
to clear procedures, in order to avoid unnecessary duplication, delays
and costs.
- To ensure that Aboriginal people participate in decisions about the
protection of their significant sites and that their wishes are taken
fully into account.
- To ensure that heritage protection laws benefit all Aboriginal people,
whether or not they live in traditional life style, whether they are
urban, rural or remote. The objective should be to protect living culture/tradition
as Aboriginal people see it now.
- To resolve some of the difficulties of developers by better procedures
which ensure early consideration of heritage issues in the planning
process, effective consultation with Aboriginal people and genuine mediation
or other processes whose purpose is to avoid injury to or desecration
of sites.
Problems with the Act
3.4 Ms Evatt conducted the first review of the Act in ten years. She
found a range of problems that formed the basis of her proposals to reform
the Act. The following problems can be identified from the Summary of
the Report (pp.xiii, xiv) under four headings:
Uncertainty and delays
- Procedures for making declarations under the Act are not provided
in detail.
- The interaction between Commonwealth and State/Territory processes
is not clearly established in the Act.
- It is unclear how much consultation there should be with State and
Territory Governments.
Fair procedures not spelled out
- The Act establishes a reporting process (to the Minister), but it
does not specify how the reporter should ensure that interested parties
are treated fairly.
- Procedures laid down by the Minister in some cases have not been simple.
- Procedures have also exposed Aboriginal religious beliefs to intensive
scrutiny.
Impeding development
- Intervention under the Act in development projects can cause delays
and costs following the completion of the planning processes.
Lack of Aboriginal involvement and respect for custom
- In the opinion of Aboriginal people, the Act has not protected their
heritage and their role in heritage protection is not recognised by
State and Territory processes. In some circumstances adequate consultation
has not occurred.
- The Act does not recognise that there are Aboriginal restrictions
on information important for the protection of heritage; confidentiality
is not protected.
- All aspects of heritage, including intellectual property, need to
be protected by the Act.
- The Act does not adequately recognise or provide for the involvement
of Aboriginal people in negotiation and decisionmaking about their cultural
heritage.
- Aboriginal people want the Act to be maintained and strengthened.
3.5 This Committee report considers each of these four problems identified
in the Evatt Report.
Recommendations
3.6 The Evatt Report contained some 58 recommendations; they are reproduced
at Appendix 6 to this report.
Government Response
3.7 The Commonwealth Government has commented as follows at the conclusion
of the Second Reading speech on the Hindmarsh Island Bridge Bill:
Given the general recommendations in the [Evatt] Report which suggest
that an overhaul of the legislation is overdue, the Government has placed
a high priority on addressing the findings of the report. [2]
3.8 ATSIC has drawn up a list of the major differences between the Evatt
Report and the Government's proposals for modifying the Act; the list
is reproduced as Appendix 7 to this report.
Footnotes
[1] Evatt Report, p.iii.
[2] Senate Hansard, 18 November 1996, p.5423.
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