Senator CROWLEY (7:40 PM) —I rise to speak on the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 . Senator Brown has just about taken my speech away from me because I came in here with the letter from the Pitjantjatjara Council's legal service. I will certainly make reference to it. I think the points that Senator Brown has raised in going through that letter are some of the points it is so important and so necessary to raise in relation to this piece of legislation.

It has been an interesting exercise to go through the history that has led up to the introduction of this legislation into this parliament. It is important to remember that an Aboriginal heritage bill was introduced by Labor in 1984. That legislation at that time was, we need to remember, pre-Mabo. It particularly focused on the protection of static heritage rather than what I think people are now realising is an important thing, that is, having a piece of legislation that takes into account heritage that is part of a living culture, not just things and places. Subsequently, the introduction of the Mabo legislation, the recognition of native title and the recognition that native title and the rights that go with it actually can survive all sorts of steps, laws and decisions taken by governments in this country for nearly 200 years were also important things to deliberate prior to this piece of legislation.

Following the Heritage Protection Act 1984 and post-Mabo the Labor government asked Justice Elizabeth Evatt to review the heritage act and make recommendations as to how it could be improved if it was necessary to improve it, and so on. As Senator Brown has just read out, some of the points that Justice Evatt made by way of suggestions to improve the act included:

. the separation of the question of significance from that of protection.

It is an interesting point to make that a clear mind helped a whole lot in sorting out that distinction. It is clearly a point that has been confused in the past, and here is the clear recommendation of Justice Evatt.

. the establishment of a permanent Aboriginal Cultural Heritage Agency to administer the Act

. a broad definition of "heritage" as exists in the current Act, for State and Territory regimes

. minimum standards for State and Territory legislation which would include independent, Aboriginal-controlled and adequately staffed and resourced Aboriginal cultural heritage bodies, and blanket protection for areas and sites that come within the broad definition

. guaranteed access to significant sites for Aboriginal people.

I was interested to read in Senator Bolkus's speech in the second reading debate on this matter an important point about blanket protection. Protection was a point that both government and opposition members of the Joint Committee on Aboriginal and Torres Strait Islander Affairs agreed to. This was not something that the opposition has arrived at; this is something that has enjoyed support from across the parties. Yet it is not something that has been offered by way of protection under this legislation. As Senator Bolkus says, every member of committees that have considered this legislation, irrespective of party political differences, has shared the view expressed in the Evatt report that indigenous heritage sites, objects and human remains should be the subject of blanket presumptive protection.

It is an important consideration that you should start off presuming that there is that kind of protection. As Senator Bolkus said, we would not doubt for a moment that someone seeking to excavate land in Rome, London or Cairo—or any other site within what we would like to call the `cradles of civilisation'—should be guided by certain unquestioned principles. It is very interesting that this legislation has not guaranteed that presumptive protection, despite the fact, as I have said, that it has enjoyed cross-party support, despite the fact that it was a strong recommendation from the Evatt report. That is one of the points of significant disappointment for me.

Secondly, particularly with recent discussions about referendums, we have been reminded of successful referendums in this country. One was a referendum in 1967 about allowing the Commonwealth to make laws regarding Aboriginal people. The community of Australia were very clear that it would be right and proper for the Commonwealth to be able to make laws and decisions regarding Aboriginal people. Yet here is a bill going to something as important as Aboriginal heritage—and, indeed, as I have said, more than static heritage; trying to take into account living heritage, part of an ongoing culture—actually palming responsibility for this protection back to the states.

There is any number of examples we can find of where the states' idea of protection for Aboriginal culture and Aboriginal heritage—to say nothing of Aboriginal people—is no longer acceptable. It is recent decisions and actions by states that give us concern. I am not talking about decisions by the states 100 years ago. I am talking about very recent decisions to challenge Commonwealth legislation in this area by suggesting that the states ought be able to do it in their own way, and their own way has invariably meant watering down the protection provided to Aboriginal heritage and culture. I do find it quite astounding that the Commonwealth government would legislate away a significant part of responsibility for protection of Aboriginal heritage. I have no idea what was in the minds of the government when they drew that conclusion and put it into law.

The other point that I find extremely contradictory too is the removal of last resort protection by appeal to the Commonwealth. Again, I think that has to be a backward step. I do not know this, and I have absolutely no capacity to say it, but I will say it nevertheless: I wonder how long that would survive. Given the international covenants and constitutional rights, why would it be that in this piece of legislation we could remove that last resort protection?

What does Aboriginal heritage mean, and how do we actually talk about protection of a living culture? It is an extremely difficult and challenging task at the best of times. We can actually think about how we protect our own culture—`our' culture here meaning `non-Aboriginal' culture in Australia. How do we actually decide what will be protected and how it is to be protected? Everybody in this place—senator or not—would have any number of examples about the brawls that go on about what is heritage and how it should be protected, all the way from cutting down trees to protecting certain houses to finding things bulldozed in the middle of the night and there goes the heritage, and so on.

We know how difficult this area is. That actually highlights why it is all the more important that we have a tough protective legislation for Aboriginal culture and Aboriginal heritage, which have in fact been tossed aside and completely ignored and disregarded for so much of the time of white settlement in this country. In some ways we need to be even more thoughtful, considerate and thorough in legislating protection for Aboriginal heritage and culture.

Some time ago on a different inquiry—it was an environmental inquiry—I was in Broome with a committee. It was really very interesting to be driven around that township and listen to the local council telling us the benefits of Broome and what was proposed, including the proposed development of a large hotel on a piece of land overlooking a glorious piece of water. `But, of course,' said the councillor through gritted teeth, `you would know—wouldn't you—out of the blue come claims for Aboriginal sacred sites.'

It just so happened that on the bus was a person who was informed about things Aboriginal. That person said, `Isn't it interesting. These are not recently discovered Aboriginal sacred sites; indeed, they were documented and registered in Perth under the appropriate legislation eight years ago. If there is an error, it has been because one state department has failed to inform another state department that these sites were there and claims had been made for their protection.' I might say that the first councillor was right annoyed to discover that this kind of story was being given to a Senate committee. But I must say this senator, as part of a Senate committee, was really very interested to get both sides of that story.

I can certainly imagine that, as Broome is a fair way from Perth, it might not be easy to determine which department covers building rights and approvals for construction and development. You might not necessarily remember to ring up and check with the department that covers Aboriginal sacred sites and pieces of heritage. You might forget to do that. Maybe it is one of those consequences of the tyranny of distance and if the legislature were in Broome, this would be less likely to happen. But Western Australia is not going to change in the near future. People or departments need to have flags or reminders on legislation to say, `Hey, don't forget to check if there are any other things going down here.'

But it also illustrated to me how readily we find the argument `Oh well, you'd expect that there will be an Aboriginal sacred site found here' used very often in an entirely derogatory way to suggest that there are no serious Aboriginal sacred sites or Aboriginal heritage. It is just something troublemakers pull out of the bottom drawer when they want to agitate. I think it is terribly important that we acknowledge that is not the story, that is not the case and that in very large part Aboriginal heritage has been walked over, trampled over, ignored and beaten into nothing or into the dust. That accounts not only for the things, the places and the sites but also very much for the people too. We should take no comfort in past practices. We do know of the many stories that illustrate the point I have just been making: that you can pull out the sneering line `Well, we'd expect an Aboriginal claim here' as a straight piece of pejorative abuse.

So I do believe it is critical that, in legislation for Aboriginal protection and for Aboriginal heritage, we make sure that there is no watering down of that protection, particularly when we can find example after example around Australia where you would not hold your breath on the protection that states offer or provide even now, though I have to say that my state of South Australia can hold its head fairly high in terms of Aboriginal land rights and heritage protection. Even so, we are a Commonwealth parliament and we are talking about legislation that covers the whole of Australia. It seems to me entirely proper that we should have some minimum standards that are uniform across the country. The idea, for example, that heritage protection in South Australia is vastly superior to what happens just across the border in any direction, I suppose we could say, seems to me to be a very insufficient state of affairs. I believe it is very important that we actually have the benefit of some kind of consistent, uniform, decent and reliable protection legislation across the whole country. I think it is unacceptable that the standards of protection from one state to another and from one territory to another be significantly different. I find that very unacceptable.

We have an opportunity at the end of the millennium to pass heritage protection legislation for Aboriginal and Torres Strait Islanders that is something we can be proud of. We have the opportunity in this legislation to either reject the legislation or adopt the significant amendments that the Labor opposition intends to put forward. Many of those pick up on the important points raised by the Evatt inquiry and highlighted in the letter from the Pitjantjatjara council that, as I mentioned, Senator Bob Brown has taken us through in such detail. I am pleased to pick up on this letter too because, of course, the Pitjantjatjara lands are a very large part of the state of South Australia. It is interesting that the Pitjantjatjara council legal service is not satisfied with the protection that has been offered for its lands in South Australia. It is concerned to see that protection strengthened and provided uniformly and equally across all the states of its territory—but for all Aboriginal people.

In closing, the other important thing that we should remember is that Aboriginal heritage protection is not only about something that is good for Aboriginal people. It is something that is good for Australia. It is something that Aboriginal and non-Aboriginal people should be proud to know about and to be contribut ing to the protection of. It is extremely important to ask ourselves questions about how much tolerance we demand of Aboriginal people in supporting non-Aboriginal cultural heritage, much of which has been built on their lands and certainly in the past without a thought of asking them about what they thought. We ask Aboriginal Australians to participate in and to walk along with non-Aboriginal culture in this country. We have the opportunity here to ask non-Aboriginals to walk with Aboriginal people in the protection of their culture and their heritage.

It is quite interesting to think back to 1967 and to just what has happened in the years since. For some of us that is pretty recent history and there have been some extraordinary and significant changes over that time. There has also been over that time continual damage to, desecration of and walking over both places and people. I believe this legislation should be defeated or very significantly amended if we are to honour our commitment to Aboriginal people and their heritage.