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Wednesday, 25 March 1987
Page: 1516


Mr HOLDING (Minister for Aboriginal Affairs)(6.02) —I move:

That the Bill be now read a second time.

It is proposed to amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to create a new Part to provide for the provisions which were contained in the Aboriginal Cultural Heritage Bill of Victoria. The amendment Bill will provide that any person may apply for an emergency declaration which may be granted by the Minister, an inspector or a magistrate, providing that an Aboriginal place or object is under threat of injury or interference. The emergency declaration is designed to cover the situation where for example the bulldozer is coming down the road or the significant object is advertised for auction. Such declarations would remain in force for 30 days. There is a power given to the person making the declaration to vary or revoke it. There will be a duty to notify the local Aboriginal community concerned and any such persons who are likely to be affected by such a declaration.

A local Aboriginal community may decide that an Aboriginal place or object in its community is under threat of injury or interference. Provision will be made for such a community to apply to the Minister for a temporary declaration. The Minister will be required to give notice of such application to those likely to be affected and give such persons an opportunity to be heard. If, after consulting with appropriate State Ministers, the Minister is satisfied in all the circumstances that a declaration ought to be made, he must make that declaration setting out the terms of the declaration and the manner of preservation of the Aboriginal place or object. The Minister will have power to vary or revoke such a declaration.

There will be provision for a person affected by a temporary declaration to apply to the Minister for the Minister to appoint an arbitrator to review the Minister's decision. Similarly, if the Minister refused to make such declaration or varies that declaration the local Aboriginal community may apply to the arbitrator for review. Temporary declarations remain in force for 60 days or such longer period not exceeding 120 days as the Minister, on the advice of the local Aboriginal community, determines. If a local Aboriginal community decides that an Aboriginal place or object is of such significance the community may request the Minister to make a declaration of preservation. The Minister must give notice of such an application and give any person who might be affected the opportunity to be heard. If the Minister, after hearing all objections and consulting with appropriate State Ministers, is satisfied that in all the circumstances it is appropriate the Minister must make the declaration. The Minister may vary or revoke such declarations. He must also give notice of any making, variation or revocation of a declaration and there are similar rights to apply to the Minister for the appointment of an arbitrator to review the decision.

A local Aboriginal community may cause notices to be placed on or near Aboriginal places or objects that are the subject of a declaration. Damaging or removing such a sign would be an offence. The legislation will make it an offence to contravene the terms of a declaration. Separate penalties will be provided for individuals and corporations. A defence is provided for a person who did not know or could not reasonably have known of a declaration of the place or object. Provision will be made to enable a local Aboriginal community to enter into an Aboriginal cultural heritage agreement with a person who owns or possesses any Aboriginal cultural property. Such agreements would provide for preservation, maintenance, sale, et cetera, in accordance with the needs and wishes of the Aboriginal and general communities. The local Aboriginal community may lodge such an agreement with the Victorian Registrar of Titles.

The Bill will empower the Minister to acquire compulsorily any Aboriginal cultural property if he 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. Persons whose property is effectively acquired when a declaration of preservation ends their rights to deal with it as owners are also entitled to compensation. The Minister also has a discretion to compensate any person affected by, or likely to be affected by, a long term declaration of preservation. After consultation with the local Aboriginal community, the Minister may appoint as inspectors persons with knowledge and expertise in the identification and preservation of Aboriginal cultural property.

If a magistrate is satisfied by evidence given on oath or affirmation that magistrate may issue a warrant authorising any member of the police force and an inspector to enter premises, to search those premises, and to take possession of any Aboriginal objects under threat. Any object seized must be returned to the owner within 60 days unless compulsorily acquired or otherwise becomes the property of the local Aboriginal community. A local Aboriginal community may, in writing, appoint honorary keepers or wardens whose functions will be to keep or record and maintain Aboriginal cultural property of that community.

It will be an offence to wilfully deface, damage, or otherwise interfere with Aboriginal objects or places. It will be a defence to such a charge that the local Aboriginal community consented in writing to the act done by the person. The Minister will cause to be kept a register of all declarations of preservation. The information upon that register would be protected from access except as prescribed. The Minister responsible for this Act will be empowered to delegate his authority, including delegation to appropriate Ministers of the Victorian Government. These delegated powers will in themselves be capable of further delegation by those Ministers. The Governor-General would have appropriate regulation-making powers.

Commonwealth legislation cannot directly amend the Archaelogical and Aboriginal Relics Preservation Act 1972 of Victoria as the Victorian Government had proposed. The existing Victorian statute will continue to apply to Aboriginal relics except to the extent that it is inconsistent with overriding Commonwealth legislation. Declarations for protection under the State statute which were made prior to the commencement of this Bill will continue to apply.

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. There is no question that the Hawke Labor Government is prepared to take that stand.

I commend the Bill to honourable members and present the explanatory memorandum.

Debate (on motion by Mr Porter) adjourned.