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Thursday, 12 November 1998
Page: 256

Mr McGAURAN (Arts and the Centenary of Federation) (10:32 AM) —I move:

That the bill be now read a second time.

The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was debated and passed by the House of Representatives on 4 June 1998. However, the bill lapsed on the prorogation of parliament and is now being reintroduced. This has given the government an opportunity to consider the second report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, and to make some changes to the bill.

The key features of the bill remain the same and include:

. the establishment of a Director of Indigenous Heritage Protection to assist the Minister in the administration of the bill;

. encouragement of the resolution of issues by negotiation and mediation;

. a requirement that heritage significance be assessed according to indigenous traditions, observances, customs and beliefs;

. the provision of protection for culturally sensitive information; and

. provision for accreditation of state and territory heritage protection regimes that meet specified standards.

In reintroducing the bill the government has redrafted portions of the earlier bill to clarify some of the existing clauses and to add some new provisions. A number of the changes arise from consideration of the joint committee's report.

The bill now includes a requirement for the Director of Indigenous Heritage Protection to have an understanding of indigenous culture and heritage and an ability to deal with indigenous people in a culturally sensitive manner. This will ensure that the person who fills this pivotal role will have the understanding and expertise to deal with what will often be sensitive and difficult issues.

During the parliamentary joint committee hearings it became evident that the term `minimum standards' was creating a significant misunderstanding. The term `minimum' was intended to indicate that the standards represented the essentials of a sound heritage protection regime, not that only a low or minimal level of protection was required. We have therefore decided to clear up this misunderstanding by deleting the word `minimum' and instead referring to `the standards for accreditation of State and Territory heritage protection regimes.'

The committee recommended that the standards for accreditation be amended to require `blanket' protection of heritage areas and objects. Blanket protection implies that all significant areas and objects, whether they have been previously identified or not, are protected and can only be disturbed if permission is granted to do so. This puts the onus on a developer to ensure that no heritage sites are at risk before work goes ahead. In response to this recommendation standard (a) has been redrafted to clarify its intent and ensure that all accredited state and territory regimes do provide blanket protection.

The parliamentary joint committee recommended greater indigenous involvement in decision making on the significance of heritage sites and objects. In order to implement this, standard (c) now requires explicit indigenous involvement in advance work approval processes. This will ensure that indigenous people can be involved at the earliest possible point in any heritage protection issues.

The committee, following the recommendations in the Evatt report, recommended that in order to ensure indigenous involvement in heritage protection processes, that decisions on the significance of areas and objects should be separated from the decisions on protection. In response to this recommendation a new standard has been drafted that mirrors the requirement in the Commonwealth regime for a separation of decisions on significance from decisions on protection. This standard also requires decisions on significance to be made in consultation with indigenous people. This is a significant additional requirement for a state or territory heritage protection regime and it implements one of the key recommendations in the Evatt report. This will provide for increased indigenous involvement in the administration of any accredited State or Territory heritage protection regime.

I am aware that the issue of `national interest' was raised in the debate on this bill in June. It was suggested that national interest be defined in such a way that it is the very act of protecting indigenous heritage that is in the national interest. Amending the bill in this way would potentially involve the Commonwealth in all indigenous heritage protection cases. This is contrary to the government's policy of providing a clear delineation of responsibilities between the Commonwealth and accredited states. Indeed, if the Common wealth were in a position to review all state decisions, there would be no incentive for states or territories to seek accreditation.

The standards for accreditation will ensure that accredited state and territory regimes offer comprehensive and fair heritage protection processes. There should be no need for recourse to the Commonwealth in an accredited regime, except where it can be argued that a site has some special qualities that suggest that its protection may be in the national interest. It should be remembered that, where a state or territory does not meet the standards for accreditation, the Commonwealth regime will always be available as an avenue of last resort.

A number of the minor suggestions made by the committee have not been included in the revised legislation. For example, the Commonwealth is requiring a high level of protection but not uniformity of practice between state and territory regimes. States and territories have unique social, cultural and legislative environments, and the standards need to allow flexibility for states and territories to have regimes that can meet the prescribed standards but in a locally appropriate way.

Some minor changes have been made to the saving provisions in the bill to ensure a smooth changeover in Victoria from part IIA of the 1984 act to new state heritage protection legislation.

In conclusion I would note that reform of indigenous heritage protection legislation is long overdue. The 1984 act was introduced as a temporary measure by Labor and has presented many difficulties for both indigenous people and other interests, and for governments administering the Act. I am pleased that we will be able to address these problems through this bill. The bill will ensure that a fair and transparent process is established for the protection of indigenous heritage at both the Commonwealth and state levels.

I commend the bill to the House and present the explanatory memorandum.

Debate (on motion by Mr Martin) adjourned.