Senator COONEY (6:07 PM) —The legislation before the chamber is entitled the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 . It purports to replace the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. It is aimed, as many acts are—not only here but in other parliaments as well—at preserving those symbols, those actualities and those substances of life which are important to us all. I recently went to Tasmania, a great state of Australia, for the 150th anniversary of one of our predecessors, who arrived in 1849. Quite a lot of people turned up from a number of generations.

When we got there, we felt a great sense of history, a great sense of identity and a great sense of importance. We went from Burnie to Waratah, to houses in which people had lived. We went to the graves of our ancestors, who are now buried there, and to places where there had been family farms and so on. So the idea of protecting our heritage is something that is within us all. To everybody who has been anywhere near Australian life over the last few years, it is quite clear that Aboriginals and Torres Strait Islanders have a deep and abiding connection with their past, as we all have, and that there are places and objects that bring back and symbolise the proud history of the Australian Aborigines and the Torres Strait Islanders.

That was recognised in 1984 when this parliament passed the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. If you look at the table of provisions, it gives an idea of what that act now does. Section 4 talks about the purposes of the act:

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

That act went about laying down how that was to be done. Under part II, `The protection of significant Aboriginal areas and objects', there is division 1, `Declarations by minister', and division 2, `Declarations by Authorized Officers'. There have been instances in which those powers have been used by the relevant minister of the time—Mr Robert Tickner and Mr Gerry Hand are ministers who come to mind.

Part IIA of the act talks about Victorian Aboriginal cultural heritage. Being from Victoria, I am particularly anxious to see that the intent of the provisions of that particular part is preserved. I think of Framlingham, where Mr Geoff Clark has done so much work. I do not want to pick out other people from down there, but Victoria has had a proud history of indigenous people struggling for their rights. It is sometimes thought that, Mr Acting Deputy President Bartlett, people from your state and from the Northern Territory and Western Australia are the people who drive this, but the people from Victoria are most important in this particular area.

There is no doubt that everybody in this chamber wants to preserve the heritage of Aboriginals and Torres Strait Islanders. The issue is: how far does each of us want to go in carrying out that purpose? I remember being in Boston and going to a cemetery in the middle of the town. That cemetery has been preserved because it contains the bodies of great people in American history. It contains the graves of people who have made outstanding contributions not only to America but to the world in general and who have been identified with the struggle of the founding fathers going to America. So this idea of preservation is universal. In that case, the people of Boston have gone to a lot of trouble to preserve that history.

The issue arises as to whether or not the new bill demonstrates a commitment to the preservation of indigenous heritage that passes the test. I agree with those who spoke before me who said that this bill does not pass the test. First of all, it takes away the minister's ability to make a declaration in the way that this is currently expressed in the 1984 act and disperses it among the states and territories so that—and this has been spoken about here before—they now become the primary source of protection for these great areas of heritage, for symbols of the indigenous people and even for the human remains that may be found. It is disappointing to find us going back to a concept of the states and territories preserving something when, by their record, we know that they are unlikely to do so. This bill tries to settle the tension between the indigenous people who want to preserve a glorious heritage and the people who want to develop—and I am not against developers—in a way that is not suitable given the history of a place or the thing that they want to develop.

This bill is a most insecure instrument in that it allows the states to make decisions, and the states are much more subject to pressure in this area than the Commonwealth. The Commonwealth is fragile enough, but to go any further should, in my view, not be allowed. That is why there are many amendments to be made to this legislation. If you look, for example, at clause 26—which talks about the standard for the accreditation of the laws in force in a state—it deals with the provision that will enable the Commonwealth to give accreditation to the laws that a state might develop to control what happens to indigenous land. If you look at clause 26(1)(c), it bears out the problems that this legislation produces. It states:

Subject to subsection (2), the following are standards for the accreditation of the laws in force in a State or self-governing Territory in relation to the matters referred to in paragraphs 24(a), (b) and (c).

These matters talk about the application by states and self-governing territories for accreditation. It goes on to state:

. . . that those laws provide for decisions in relation to the significance of areas or objects to be made in consultation with indigenous persons and sepa rately from any decisions in relation to the protection of those areas or objects.

Simply to require that there be consultation with indigenous people is clearly not sufficient. If decisions about our own heritage—be it the graves of our fathers, mothers, grandfathers and grandmothers and so on, or be it some property that we may have owned or been attached to—were to be made after consultation with us and that is all, we would feel very upset about that.

What we would prefer and what we should be entitled to, I would have thought, is an ability to have an effect on the decision being made—either by being part of the group that makes the decision or by having our statements taken on board. But simply to say that there has to be consultation is not giving protection to the concepts, thoughts and aspirations of the indigenous people whom this act will affect. To simply say that there has to be a process whereby they are consulted but in no other way taken notice of is not going to the point, particularly when this is replacing stronger provisions on this matter in the existing act. It is true that there are situations where the relevant minister can come in and take action directly but they are very limited, and that is not a sufficient provision to enable this bill to work fairly.

An issue that has been raised is: what is in the national interest? The expression `national interest' simply means that people can make any such decision they want, as long as it looks reasonable. And anything can be made reasonable, depending on how you put the facts and what facts you care to choose.

There have been reports on matters related to this legislation, including one from the Legal and Constitutional Legislation Committee, on which I have the honour of serving as a member. A report dissenting from the main committee report was produced by a group of senators: Senator Margetts, whose going from this chamber has been to its great loss; Senator McKiernan; Senator Woodley; and me. That dissenting report made a dozen recommendations which were very sensible; they were recommendations which I thought could be taken on board. For example, recommendation No. 8 says `that the state and territory accredited regimes should be subject to ongoing monitoring and review as well as periodic formal review'. That sounds like a reasonable recommendation. It is saying that, if you are going to have this system of accreditation, it should be kept constantly under review.

One thing that happens with a lot of the legislation that is passed in this chamber is that it is put out into the public arena but there is never any attempt to ensure that its provisions are complied with, either by setting up a system of review or by setting up a number of inspectors to go out and look at whether the provisions are being taken on board and so on. It will be very difficult, given the frequency with which elections take place in various states—and at the Commonwealth level too, for that matter—to ensure that the accreditation standards are kept up to date. If they fall away, then you could have grave sites, areas of land or particular objects desecrated. Once they are desecrated, that is the end of it and they are not protected. So it is important to ensure that whatever legislation is passed is complied with by the states and territories to which it applies.

Recommendation No. 1 says `that the Commonwealth should retain a direct role in ensuring the ongoing protection of indigenous heritage under this act', and I have dealt with that. I want to talk a little about recommendation No. 4, which says `that an Aboriginal heritage advisory council be established under the proposed act consistent with the recommendations of the Evatt report'. Justice Elizabeth Evatt, a person of profound learning, great experience and deep wisdom, is someone whom we as a legislature should take note of. The recommendations that she made in her report are ones that this chamber should, as far as possible, given its political make-up, put into operation.

Recommendation No. 11 of the dissenting report says `that this legislation provide for the protection of non-contemporary indigenous art and other instances of indigenous culture from expropriation and exploitation, whether for commercial gain or for other purposes'. That goes to the issue of indigen ous people being in control of their own objects of tradition and their own areas.

This bill recognises that there must be protection for the heritage of Aboriginal and Torres Strait Islanders. Its objectives are good and should be supported, but the mechanism by which those objectives are to be realised is faulty. Hopefully the amendments to be pressed by the opposition, together with the Democrats and, no doubt, Senator Brown, will be accepted by the government.