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Friday, 15 June 1984
Page: 3193


Senator MESSNER(8.05) —Mr Temporary Chairman, I address myself to the definitions incorporated in clause 3 of the Bill, in particular, to the definitions of 'Aboriginal tradition' and 'significant Aboriginal area'. First and foremost, I note that the definition of 'Aboriginal tradition' is extremely wide as it is set down in this Bill. I am at a loss to know how that definition interlocks with the definition of 'significant Aboriginal area', insofar as those areas are supposed to be declared by the Minister in accordance with what he deems or decides to be in accordance with Aboriginal tradition. It seems to me that one of the main criticisms of this legislation is that there is very little specific detail as to how the Minister for Aboriginal Affairs might go about deciding what is Aboriginal tradition. I think we can see the significance of that problem if we read that definition alongside other clauses of the Bill which give, if you like, almost total power to the Minister to decide how and what kind of tradition ought to be taken into account. This is added to by the fact that anybody, be he an Aborigine or any other person, can make an application to the Minister to seek a declaration by the Minister in this circumstance. Yet, there is absolutely no premise that I can see in the Bill that gives us any guide as to what is an Aboriginal tradition. Those two things, as we have drawn out during the course of the second reading debate, are very closely intertwined.

Of course, the broad question that has to be addressed is the difference between this legislation and the Aboriginal Land Rights (Northern Territory) Act 1976 which attached some spiritual connection to sacred sites and this kind of declaration. In that respect, it seems to me that the Bill is terribly deficient in terms of guidelines. I would like to hear the Minister for Social Security ( Senator Grimes) tell the Committee how he expects that kind of association can be more closely identified. Perhaps he could give us some kind of reference to a body of Aboriginal tradition to which the ordinary person could refer in order to determine whether or not actions conflicted with Aboriginal practices of the past.

The last point I would like to make in respect of this clause is that the wide definition that is set down in respect of Aboriginal tradition, quite apart from guidelines, needs some sort of closer definition in law. Therefore, I believe that this clause has not been given proper thought insofar as the Minister might leave himself open to the charge that he is adopting a view given to him orally- not necessarily in writing-as the Bill already defines, by a person who is not necessarily an Aborigine. The Minister can then make a decision in favour of a particular activity without reference to any kind of background at all in Aboriginal lore or tradition. I would like to relate clause 4, which we have not dealt with yet and which contains the words 'particular significance', to the clause before the Committee which contains the words 'significant Aboriginal area'.