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Wednesday, 6 June 1984
Page: 2586


Senator RYAN (Minister for Education and Youth Affairs)(10.25) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

This Bill has two main purposes:

1. To preserve and protect areas in Australia and Australian waters which are of particular significance to Aboriginals or Islanders in accordance with their traditions; and

2. To preserve and protect objects, including Aboriginal and Islander human remains, which are of particular significance to Aboriginals or Islanders in accordance with their traditions.

It will fill a gap in the law of Australia which can allow sites of significance to be damaged, destroyed or desecrated, and can allow objects of significance, including Aboriginal human remains, to be traded, displayed and otherwise used in ways which are anathema to Aboriginals and their traditions.

The need for legislation to enable direct, immediate action by the Commonwealth has been highlighted by such events as Noonkanbah and a number of situations which have arisen during the life of this Government. Time and again the Commonwealth has been powerless to take legal action where state or territory laws were inadequate, not enforced or non-existent, despite its clear constitutional responsibility.

Occasionally there has been enough goodwill to deter people from proceeding in ways inconsistent with Aboriginal traditions and wishes. But goodwill is not always sufficient. The time for legislative action by the Commonwealth has come. In the eyes of Aboriginals such action is long overdue.

They have stressed to the Minister for Aboriginal Affairs the need for priority to be given to enacting legislation which can counter the real, and at times sudden, threats which are made to significant sites and objects. They have asked the Government to provide a means for arriving at solutions to important and often emotionally charged problems. Mr President, this Bill is an answer to those requests. It will give the Minister for Aboriginal Affairs power to protect and preserve areas and objects from injury or desecration. Such injury or desecration encompasses a range of activity.

For example, the construction of a road through or near a significant Aboriginal area, entry by tourists to such an area in a way inconsistent with the entry restrictions of local Aboriginal tradition, or the construction of a dam near to such an area which will result in the inundation of that area, may each constitute injury or desecration of a particular significant Aboriginal area. In the case of a significant Aboriginal object, physical mutilation as well as public display of or commercial dealing with the object may constitute injury or desecration.

This Bill is the first part of a legislative scheme which this Government intends to enact to ensure the preservation and protection of the cultural heritage of Aboriginal and Torres Strait Islander Australians. That scheme will give the Commonwealth Government a legislative framework in which to exercise the constitutional power and responsibility clearly given to the Commonwealth by the overwhelming majority of Australians in the 1967 referendum. This Government has shown itself willing to take on that responsibility and to act seriously in exercising it. The Bill before the Senate is further evidence of the Government' s acceptance of that responsibility.

As the Minister for Aboriginal Affairs has stated publicly on a number of occasions, model land rights legislation is being prepared in consultation with Aboriginals throughout Australia. In the same way, the Bill before the Senate today has been prepared in response to requests from Aboriginal people and following consultation with them.

State governments and the mining and pastoral industries have also been given an opportunity to comment on the Bill. I acknowledge that there has been criticism of the time period in which comments were sought. It did nevertheless provide an opportunity which certain States have not been prepared to give the Commonwealth in relation to legislation prepared by those States impinging on matters for which the Commonwealth has a clear responsibility.

Some amendments were made to this Bill as a direct result of consultation with State governments. It is an interim measure which will be replaced by more comprehensive legislation dealing with Aboriginal land rights and heritage protection. As evidence of the Government's intention to legislate more comprehensively, the Bill before the Senate is expressed to have effect for no more than 2 years from the date of its commencement.

I must make it clear from the outset that this is not interim land rights legislation nor is it intended to be an alternative to land claim procedures. The Minister will not be making declarations with respect to vast areas of land in de facto recognition of a claim which Aboriginals may wish to make later under another law.

The Bill speaks of significant Aboriginal areas, and defines 'area' to include a site. The use of the word 'area' rather than site will allow flexibility in recognising what Aboriginals believe to be significant. It will save a narrow and artificial approach being taken to sites, for example, to discrete geological formations. Where a site is particularly secret and sacred there may be an area immediately adjacent to it where people ought not to go. Transgression of that space may be as offensive as entry to the site. It may also be thought to place people going there in physical danger. This Bill is worded to enable those situations to be accommodated. It is not meant to close off huge areas. It will not be administered in that way.

Scheme of Protection

Mr President, the scheme of this Bill is a simple one, aimed at granting effective protection to areas and objects under threat of injury or desecration. Its key features are as follows:

1. Action will be taken only when the Minister has received an application by or on behalf of Aboriginals or Torres Strait Islander people.

2. The Minister will need to be satisfied that the area or object for which protection is sought is significant in accordance with Aboriginal tradition.

3. When deciding whether to make a declaration in respect of an area or object the Minister will take into account such other matters as he considers relevant. This will allow the weighing of competing interests in each case. Honourable senators should note that cabinet will be consulted, where practicable, before each declaration is made.

4. Where a declaration may be made in respect of an area for a period of more than 30 days, the Minister will be obliged to receive and consider a report prepared by an independent person dealing with the range of issues that such an application may raise. These include the type and extent of any protection which should be granted and the effects which the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal applicants.

5. Declarations will set out particulars of the area or object to be protected. They will also contain provisions for and in relation to the protection or preservation of the area or object from injury or desecration. The Bill recognises that because areas vary in physical form and significance and size, different conditions may need to be applied to each. Because the types of activities which may be permitted on such areas will vary in accordance with local Aboriginal traditions, the activities governed by the declarations may also vary. For example, entry to an area may be unrestricted in one case and closely prescribed in another, depending on traditional rules governing access.

Similar comments can be made with respect to significant Aboriginal objects. As I mentioned earlier, while physical mutilation will clearly constitute injury or desecration of an object, the public display of or an attempt to sell such an object may be equally offensive in some cases. The provisions of declarations will be drafted bearing these things in mind.

6. Where Aboriginal human remains are involved, the Minister will be empowered to order the delivery of those remains to himself or to Aboriginal people entitled to them, and willing to accept responsibility for them, in accordance with Aboriginal tradition. This provision will enable the satisfactory disposal of remains held contrary to expressed Aboriginal wishes.

Consistent with the requirements of the Constitution, where this, or any other action under the Act, involves the acquisition of property, compensation will be payable to the person whose property is acquired.

7. Before making a declaration, the Minister for Aboriginal Affairs will be obliged to consult with his State or Territory counterpart to ascertain whether the law of that State or Territory offers effective protection. If it does, a declaration will not be necessary. I will refer to the relationship between this legislation and State and Territory laws in more detail later in this speech.

8. A declaration will be published in the Gazette and in local newspapers. It will take effect from the date of publication in the Gazette or a later date specified in the declaration. Reasonable steps will be taken to give written notice of a declaration to persons likely to be substantially affected by it. This will include advice to the relevant State or Territory Government.

9. Declarations will be treated in many respects like regulations. For example, a declaration will be laid before each House of this Parliament within 15 sitting days after it has been made. Either House may disallow the declaration within the statutory period. Review by the Houses of Parliament will, in effect, be the only review of the merits of a Minister's decision to make a declaration. Of course, other administrative law remedies will still be available to people affected by the declaration.

10. In some emergency situations, where the Minister is unavailable to make a declaration according to the formal requirements of the Bill, an authorised officer will be able to make an urgent declaration which will remain in effect for no more than 48 hours.

State and Territory Laws

As I have already said, Mr President, this Bill provides the legal basis upon which the Commonwealth can act where the law of a State or Territory does not provide the necessary protection. The lack of protection may arise from either an absence of effective legislation or an unwillingness to enforce the provisions of legislation capable of meeting the goals of this Bill.

The Commonwealth is not attempting to cover the legislative field in this area of heritage protection. The Bill expresses an intention not to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with it. In practice the Commonwealth sees this as legislation to be used as a last resort.

The processes for the making and continuation of declarations will ensure that full recognition will be given to relevant State and Territory laws, and co- operation will be sought from State and Territory governments.

Where the Minister is considering whether to make a declaration in relation to an area, an object or a class of objects, he will be obliged to consult with the relevant State or Territory Minister to ascertain whether there is effective protection of the area, object or objects. In the case of Norfolk Island he will consult with the relevant executive member.

By reference to long standing convention, he will consult with the Minister for Territories and Local Government where the Australian Capital Territory or an external territory, other than Norfolk Island, is concerned.

Although the Minister will be obliged to consult in this way, the mere failure to consult will not invalidate any declaration he may make.

Let me assure the House that all reasonable attempts will be made to consult with State and Territory colleagues. On occasions the relevant Minister may be unavailable to discuss the matter, and the urgency of the threat to the area or object may be such that the Minister for Aboriginal Affairs must take a decision without the benefit of such consultation. There may be occasions when a State or Territory Minister will refuse to consult. This Bill is framed to ensure that such refusal will not frustrate its proper operation.

Where a State or Territory has no law capable of providing effective protection , or no action is being taken to give effect to that law, the Commonwealth will act in appropriate cases. It is open to the States to ensure that effective heritage protection is offered by their legislation.

It is possible that State or Territory law may be capable of providing protection, but not with the same speed as Commonwealth law. The Bill provides that, in such a case, the Minister may make a declaration. Where, in that or other circumstances, the Minister is later satisfied that a State or Territory law does effectively provide protection to the subject matter of a declaration, he must revoke that declaration.

The rights of individuals under concurrently operating laws will also be preserved. Where a person may be prosecuted and convicted under this Act or a law of a State or Territory, nothing in this Act will render that person liable to be punished more than once in respect of the same act or omission. Nothing in this Bill will derogate from rights which a person may have to any remedy apart from this Act.

Mr President, it will be clear from this summary that the Commonwealth wants to encourage States and Territories to use such legislation as they have in the interests of the Aboriginal and Islander people for whose benefit it was passed. Where that legislation is inadequate the Commonwealth will, through this legislation, encourage changes to be made.

Already some States have indicated a willingness to co-operate in the implementation of this legislation. Where the administrative functions are already being performed effectively by a State body willing to accept extra responsibility, the Bill provides a delegation power which will enable formal endorsement of those arrangements.

There are other matters, such as the notification of people who might be affected by a declaration, which could usefully be delegated to Commonwealth officials.

Mr President, there is no suggestion that the decisions which must be taken by a Minister, and for which he will be held responsible, will be delegated. The Bill specifically excludes from delegation: The Minister's power to make declarations, the Minister's obligation to consult with his State or Territory counterpart, and the Minister's power to seek injunctions from the Federal Court .

The Bill before the House is intended to meet those situations where, for whatever reason, local law is inadequate. The Commonwealth has a clear constitutional responsibility to act. This Bill will give it a legislative base on which to act.

Enforcement and Penalties

The major offences which this Bill creates are breaches of the provisions of declarations. For example, it will not be an offence under this legislation to desecrate a significant Aboriginal area unless there has been a declaration in respect of it and the activity complained of is in breach of that declaration.

Thus, where the Minister has made a declaration containing provisions for the protection of an area from injury or desecration, and an individual person or a corporation contravenes a provision, that person or corporation will be guilty of an offence. A similar scheme will have effect in respect of significant Aboriginal objects.

In summary, the Bill provides that a person contravening a provision of a declaration will be guilty of an offence. The defendant may adduce his own evidence that he neither knew, nor had reasonable grounds for knowing, of the existence of the declaration. Such evidence may also be drawn out in the cross- examination of prosecution witnesses. Where there is that evidence, the prosecution will bear the onus of proving beyond reasonable doubt that, at the relevant time, the defendant knew, or ought reasonably to have known of the existence of the declaration. Unless the prosecution can discharge that onus, a person cannot be committed for trial or convicted of an offence.

Let me assure honourable senators: Innocent picknickers, bushwalkers and campers will not be prosecuted. Where appropriate, fences and signs will be erected to mark areas which are the subject of a declaration. This will be in addition to Gazette and newspaper notices, and notices to persons likely to be substantially affected by the declaration. There will be nothing secret about a declaration. However, where a person genuinely does not know, and could not reasonably have known, of such a declaration that person will not be in any danger of being convicted.

Mr President, the high penalties which this Bill sets out for breaches of declarations are an indication of the seriousness with which this Government views the need for heritage protection. The desecration of a site or object can strike at the very roots of Aboriginal beliefs and observances.

We would hope that, as declarations are made, those whose activities may be impeded or whose interests may be affected will respect the interests of the relevant Aboriginals or Islanders and observe the terms of the declarations. At the very least, the possibility of substantial financial penalties and imprisonment should act as a deterrent to those contemplating acting contrary to a declaration. No longer will it be a cheap option to destroy a site or sell an object.

Where people are willing to proceed in defiance of a provision of a declaration , injunctions and interim injunctions can be sought from the federal court by the minister. The range of conduct which may be subject to an injunction is widely drawn, as is the power of the court to restrain a person from engaging in certain conduct or require him to do something.

Company directors and employees will need to look closely at their position under this Bill. The intention of a member of the governing body, a director, servant or agent of a body corporate, or the knowledge of that person, will be deemed to be the intention or knowledge of the body corporate. Conduct engaged in by an individual on behalf of a body corporate shall be deemed to have been engaged in also by the body corporate.

I reiterate the hope that this legislation will promote genuine attempts to resolve conflicts which may occur in this area.

The Bill recognises that, in judicial proceedings arising under it, there may be occasions when it will be necessary for evidence to be given concerning a secret or sacred aspect of Aboriginal tradition. Where this is the case, people may be reluctant to give such evidence in proceedings which are open to the public and which may be reported.

Experience in Aboriginal land claim hearings in the Northern Territory has shown the benefit to the Aboriginal Land Commissioner and parties appearing before him of enabling Aboriginal people to give some evidence on a restricted basis. This Bill will enable courts to adopt a similar approach. It is a further measure to ensure that the secrecy attaching to matters of particular significance to Aboriginals and Islanders is respected.

Conciliation and Compensation

To encourage attempts at the resolution of conflict, the Bill provides that, where the Minister has received an application for a declaration, he may request such people as he considers appropriate to consult, either with him or his nominee. This consultation could precede or follow the making of a declaration.

Where a declaration has been made, the resolution of the matter to the satisfaction of the applicant and the Minister may result in the revocation or variation of the declaration. Where there is resolution of the matter before the Minister has made a declaration there may be no need for a declaration, or a declaration may contain different provisions from those it might otherwise have contained.

Furthermore, the Bill provides for the Attorney-General to authorise grants of legal or financial assistance to people who wish to apply for a declaration, whose proprietary or pecuniary interests have been or may be adversely affected by a declaration, or against whom legal proceedings have been instituted.

In considering an application, the Attorney-General, or an officer authorised by him, will need to be satisfied that it would involve hardship to the person to refuse the application, and that all the circumstances make it reasonable for a grant to be made.

Mr President, the Minister for Aboriginal Affairs has consulted members of the Australian Democrats, in respect of this Bill. Those consultations have proved to be beneficial and specific matters have been raised upon which comment should be made.

Reservations have been expressed about the provisions of clauses 16 and 28 of the Bill. Clause 16 provides that where the Minister refuses to make a declaration in respect of an area or object he shall take reasonable steps to notify the applicant or applicants of his decision. The Bill has no express requirement for the Minister to give reasons for that decision. It may be that reasons could be required of the Minister by an aggrieved applicant pursuant to the Administrative Decisions (Judicial Review) Act. In any case, the Minister has agreed that where he refuses an application for a declaration he will provide reasons for that decision. That refusal will not prevent the applicant making a fresh application, perhaps providing more material in support of it.

The second matter involves the compensation provision in clause 28. That clause provides that, where there is an acquisition of property from a person by virtue of this legislation or a declaration made under it, the Commonwealth will pay a reasonable amount of compensation. Honourable senators will be aware that the constitution requires the Commonwealth to pay just terms where property is acquired. Where property is not acquired, that obligation does not exist. The Minister has agreed, however, that where the interests of a person or a company are significantly affected by the making of a declaration the Government will determine what compensation payment, if any, is appropriate according to the merits of that case.

Conclusion

Mr President, this will be beneficial legislation, as other legislation remedying social disadvantage has been. Aboriginals and Islanders will be secure in the knowledge that areas and objects of particular significance to them can be preserved and protected. Where the remains of ancestors were stolen from graves and shamefully abused, this Bill will allow those remains to be returned to them.

As Mr Justice Murphy recently observed as part of the High Court's judgment in the Tasmanian dams case: ''The history of the Aboriginal people of Australia since European settlement, is that they have been the subject of unprovoked aggression, conquest, pillage, rape, brutalization, attempted genocide and systematic and unsystematic destruction of their culture.''

This Bill is an exercise of a Commonwealth constitutional power aimed at preserving what has survived that process. It falls within the kinds of benefit which such laws may properly confer.

But the benefit will not be confined to those local Aboriginals and Islanders whose areas and objects receive the direct protection of the law. In a wider and very real sense, the benefit will be felt by the whole community. The preservation and protection of this ancient and significant culture from the destructive processes which have been operating at different rates across this country can only enrich the heritage of all Australians.

I commend this Bill to the Senate.

Debate (on motion by Senator Reid) adjourned.