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Thursday, 14 June 1984
Page: 3064


Senator MESSNER(8.07) —The Opposition will oppose the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill. Our major objection is that this ill-considered and dangerous legislation does not primarily relate to sacred site protection but has much broader application. We believe that land rights are being pushed in this Bill at the expense of civil liberties and to the detriment of the individual rights of all Australians, both Aboriginal and non-Aboriginal. Not only will this Bill erode the goodwill built up by the positive initiatives of the previous Government but also it will erode the broad bipartisan approach favoured by all Australians towards the justifiable needs of Australia's Aboriginal people. The Government is antagonising otherwise sympathetic Australians with the production of this confrontationist Bill. As my colleague the shadow Minister for Aboriginal Affairs, James Porter, has put it, Australia's future unity is being jeopardised for the sake of political expediency.

The truth is that this is the only legislative move that the Minister for Aboriginal Affairs (Mr Holding) has made in an attempt to fulfil just one of the extravagant and ill-considered promises he has made over the last 18 months. It is the Minister's own political future that he is worrying about in rushing through this Bill now, not the future of the Aboriginal people or of the nation as a whole. Someone has mentioned to the Minister that there will be an election at the end of the year and has woken him up to the fact that he desperately needs to get something through the Parliament at least to get a run on the board . The Minister's late haste reflects this. This was evident to all of us last Friday week when the debate in the House of Representatives was brutally suppressed and the legislation rammed through.

Important implications of the Bill have not been discussed. This Government has proved once again that consensus and consultation will involve only those who enjoy the Hawke Government's favour. Much less has there been consultation with the many Aboriginal groups. Quite extensive groups, contracts and concerns have been flowing into honourable senators' offices in the last few days. In fact, it can be confidently stated that the Minister has misled the Parliament as to the extent of his consultations with the Aboriginal community. In a letter to the Prime Minister (Mr Hawke), concerning other consultations that the Minister has claimed he has made and obviously has not, the National Farmers Federation Executive Director, Mr John Whitelaw, said:

The introduction of the Bill to Parliament has been conducted in an atmosphere of urgency.

The NFF can see no reason for this great haste.

I urge your support for deferral of any resolution of this Bill in the House until at least the Budget session of Parliament, to allow more time for the Government to consider the views of all interested parties.


Senator Cook —When are you going to talk about what really is in it?


Senator MESSNER —I will talk about the Bill if the honourable senator promises not to talk about economics and show us his rubbish from time to time. Similarly , although the Bill is of legitimate and vital importance to, for example, the mining industry and the thousands of Australians that that industry employs, we have the Australian Mining Industry Council saying:

There has been no effective consultation with the mining industry despite the Minister's statements to the contrary. Not one comment by the mining industry on an earlier draft of the Bill has been recognised by the Bill now before the Parliament.

That letter, which was sent to members of Parliament and senators, is dated 23 May. So far opposition to the Bill has come not only from the Australian mining industry but also from the Primary Industry Association of Western Australia Inc ., the National Farmers Federation, the Australian Petroleum Exploration Association Ltd, Aboriginal communities, the Australian Archaeological Association and many others. Moreover, the State governments, regardless of their political colours, have expressed deep concern about this legislation. The Liberal Government in Tasmania, the National Party Government in Queensland, and the Australian Labor Party governments of both New South Wales and Western Australia have all expressed grave concerns about this Bill, and well they might . Although clause 13 of the Bill obliges the Minister to consult with the States , sub-clause (4) guarantees that any failure to consult will not invalidate a ministerial declaration, thereby making the State consultation clause almost meaningless. I hope that Government senators are listening to that particular aspect. It is a total denial-


Senator Elstob —Read it again.


Senator MESSNER —I thank the honourable senator very much for his invitation. I will. Sub-clause (4) of clause 13 guarantees that any failure to consult with the States will not invalidate a ministerial declaration as a result. That is absolutely absurd. Mr Wilson, the Labor Minister for Aboriginal Affairs and a member of the Burke Government in Western Australia, said in Parliament on 8 May :

The State Government was not convinced, and it remains unconvinced of the need for the legislation. It continues to have doubts and concerns about the lack of consultation between the State Government and the Commonwealth with respect to this matter.


Senator Hill —Who said that?


Senator MESSNER —This was the Western Australian Labor Minister for Aboriginal Affairs. That Minister is not alone on that issue.


Senator Hill —That is Senator Cook's State.


Senator MESSNER —That is Senator Cook's State. I see that he has left the chamber; he cannot take the heat. Since that Minister made that statement the Western Australian State Labor Caucus has voted for the withdrawal of the legislation. A Labor government caucus has voted against the legislation in the State of Western Australia. Indeed from the West Australian of 8 May we know that the Western Australian Premier, the Hon. Brian Burke, has sent a telegram to Mr Hawke complaining about the lack of consultation over the legislation and appealing to the Prime Minister to delay the Bill. If the Minister cannot convince his political mates in the Labor States of the need for the Bill, why is he introducing this ludicrous piece of legislative lunacy in this chamber right now? The original legislation introduced into the Federal Cabinet by the Minister was rejected as being totally inappropriate and the Minister was sent away to have another go at it. Obviously when he came back the second time he had not done much better. What is more, this item was sneaked into the Cabinet room not as part of the Cabinet agenda but as an unlisted item. It is obvious that the silver haired saviour gave him a tip-off that he had to get something before the Cabinet before the forthcoming election and this was his big chance.

Other departments had no prior opportunity to consider the contents of the Bill and its wide ramifications for all Australians. If they had, it is clear that this Bill would have been sent back for more rational consideration. Already, as a result of this, the Minister has had to tag on to the Bill amendments to clauses 22 and 24 to ensure that the legislation would even include the very basic convention that a person is innocent until proven guilty-a very basic premise of Australian and British law. I find it extremely objectionable that this Bill can be drafted with such disregard to begin with. That is but one example of the irresponsible haste that has led to the production of this ill- considered legislation. As I said earlier the Bill does not relate to sacred sites, as the Minister tries to imply. In fact the Bill offers no definition for sacred sites even though the Aboriginal Land Rights (Northern Territory) Act of 1976 does offer such a definition. That was an Act which I remind honourable senators was introduced by the Fraser Liberal Government.


Senator Chaney —And the Western Australian heritage legislation.


Senator MESSNER —Indeed, as my colleague Senator Chaney says. It is important to note that the Land Rights (Northern Territory) Act of 1976 specifically relates sacred sites to a spiritual association between Aboriginal people and the land in question. The closest this Bill comes to anything approaching a sacred site is in the phrase 'significant Aboriginal area'. What does that mean? There are several definitions of that in the Act. The following definition is set out in the Bill:

(a) an area of land in Australia or in or beneath Australian waters;

(b) an area of water in Australia; or

(c) an area of Australian waters,

being an area of particular significance to Aboriginals in accordance with Aboriginal tradition . . .

Obviously that significance is broader than just the question of spiritual significance which was set out in the Aboriginal Land Rights (Northern Territory ) Act. Clearly the looseness of the definition broadens the application of the Bill far beyond the preservation of sacred sites and objects. We are going far beyond the question of Government action to preserve endangered sacred sites. Indeed the proposed legislation does not even confine itself to the protection of Aboriginal sites but has application specifically to areas, any area, which the Minister believes is of particular significance to Aborigines in accordance with their traditions. This means that a traditional land area could be the subject of a declaration under the Bill regardless of whether it is private or public land. Further, of course, there is no limitation on the size of the area which may be declared under this legislation.

Even if this Bill were limited to sacred sites, which it is not, enormous difficulties remain unresolved in determining where the sacred sites are. Aborigines are loath to point them out until these sites are actually threatened believing it important to maintain the secrecy of their locations. Nothwithstanding this, in a submission to the Seaman inquiry into Aboriginal land rights in Western Australia the State Museum in Western Australia proposed that more than 750,000 areas within that State alone could be registered as Aboriginal sites. The Acting Director of the Museum, Mr Peter Randolph, said that the equivalent of 20 sacred sites could be registered for each Aboriginal. Under this Bill we can add to that Lord knows how many significant areas that the Minister may choose to designate.

Worse yet, there is no requirement for an applicant under this legislation to establish any relationship with the area or the site. As bizarre and inequitable as it sounds, under this legislation a person with no relationship with an area in question, a person who is not in any sense a traditional owner, may seek a declaration from the Minister which may openly conflict with the interests and wishes of the area's traditional Aboriginal owners. I am told that there is to be some amendment to the Bill in that respect and I look forward to the Government saying something about that in the course of the debate. We would like to hear the Government's remarks on that matter in particular.

Not only has this Bill raised enormous concerns amongst non-Aboriginal Australians but also it could allow control to slip from traditional Aboriginal owners and land councils. There is no requirement for the Minister to bring interested parties together to resolve conflict regarding the threat of desecration of an Aboriginal area. There is no requirement under this Bill for the Minister even to consider the national interest. I remind the Senate that that is a key element of the Aboriginal Land Rights (Northern Territory) Act 1976. The thrust of the emergency declarations in the Bill as a whole is toward confrontation rather than the resolution of conflict. To demonstrate this, my colleague in the House of Representatives, Mr Porter, has already outlined a dispute that occurred last year in our home State of South Australia regarding an access road planned to cross the Cane grass swamp to service the Roxby Downs mine. The Minister was quoted at the time in the Sydney Morning Herald as stating that he would introduce legislation to cope with that kind of situation.

Let us briefly compare what happened in that dispute under the existing laws with what may have happened had this legislation been in force. Let us not forget that the Minister said that he was hampered at the time from active Commonwealth intervention because there was no relevant Commonwealth law protecting Aboriginal sites. What actually happened was that negotiations were commenced under existing State legislation with the participation of the Roxby Downs management and the affected Aboriginal community. Through that consultation the issue was resolved. I repeat that the issue was resolved under the existing State legislation. The dispute was resolved to the satisfaction of all parties through consultation.

Under clause 9 of this Bill an application could be made to the Minister claiming that an area was a significant Aboriginal area which was under serious threat of injury. Undoubtedly, given the Minister's public statements on the issue he would then have made a declaration prohibiting entry into the area which could have lasted for up to 60 days. The Minister could have then sought a report from a person nominated by him and that person could have been one of the people seeking the declaration in the first place. He could have then prohibited entry to that area for up to two years. Those are the very wide powers, the almost dictatorial powers, given to one man-the Minister-under this Bill. If this legislation had been in force at the time of the Roxby Downs problem the dispute could very easily be still going on right now.

This confrontationist piece of legislation ignores one very important point: In essence it is unnecessary because the States have legislation to protect sacred sites, as my colleague Senator Chaney has pointed out, and some are in the process already of reviewing their legislation. It is one of the ironies of Australian political life that this Government, which crows about its readiness to negotiate and consult, has failed to do so in a critical area such as this, and has resorted to the shotgun and overkill of this Bill.

It is not just access roads to mines, or mines themselves that would be affected under this Bill; all land in Australia is subject to claim under this Bill. It could be Crown land, private land, urban land or rural land. It might not just be land; it could be lakes, creeks, rivers and waterways within the country and all Australian waters in toto-everything from the Coral Sea and the Great Barrier Reef to the Murray, from the central Australian deserts to the city suburbs. Indeed, because the Bill covers all land and water, whether occupied or not, all existing mines, farms, homes and so on are subject to this Bill, which could be rightly called retrospective.

Under this legislation the Minister can not only make a declaration prohibiting people from entering their own land, but he could also demand that the owner of the land fence the area in question to stop others going on to it. Property owners and persons or groups with major investments in land improvements can be, by declaration, deprived of access to their land; all this without any compensation being payable unless the courts consider the Minister's declaration amounted to an acquisition. But then the problem arises that the courts could not decide that since it is not an acquisition in the true sense of the word. The Commonwealth would merely be limiting the use of the area. As a result it is highly likely that compensation would not be payable in such a case. Companies could face losses due to existing contractual obligations, farmers stock or crop losses and employees wages or job losses, because compensation is payable only when there is acquisition, not deprivation of the use of the land, which is one of the key elements of this Bill. This Bill seizes a level of power and control and places it in the hands of one man in a way unprecedented in our country's history. I believe we have to make that point very clear. It is the central point of the legislation. As I have pointed out, this is not necessarily for the benefit of Aborigines or the traditional owners of the land.

The discretionary powers that it is proposed to confer on the Minister under this legislation are extraordinary. The Bill proposes that the Minister should have virtually unfettered discretion in determining which areas or objects are significant and the restrictions or conditions that will be applied under any declaration. The Minister says that the Bill is 'not meant to close off huge areas' but the fact remains that this Bill would allow just that to happen. Regardless of what the Minister says he means by this Bill, the truth is that its passage would place tremendous powers in that single man. That is the central question for the Senate in this debate.

The Bill as it stands betrays not only an unbounded and naive faith in human nature, particularly of politicians, but more sinisterly it also betrays the Minister's apparent belief in his own infallibility. Maybe he has been infected by his great Leader in that. Lest this seem too hyperbolic a statement, let us examine some of the mitigating factors. The review provisions in the Bill are hopelessly inadequate. It is a gross understatement when the Senate Standing Committee for the Scrutiny of Bills says of the so-called review provisions in this Bill:

The Senate may wish to consider whether parliamentary scrutiny is the most effective means of reviewing the merits of what may be highly complex and contentious decisions.

It went on in another part of its report to state:

The Committee draws these clauses to the attention of senators in that they might be considered to make rights, liberties and/or obligations unduly dependent upon non-reviewable decisions.

I think that makes the point very clearly. The Scrutiny of Bills Committee, a joint committee of this Parliament, makes the point that the review mechanism as set down in this proposed law, that is, the review of that decision by the Minister and the Parliament, is totally inadequate, ill-thought out and inappropriate in those circumstances.


Senator Macklin —Why is that?


Senator MESSNER —I have just quoted the report of the Scrutiny of Bills Committee. This clearly is the signal that such a mechanism is totally inappropriate and needs rethinking. On that ground alone the Government should withdraw the Bill and have another go.

If the legislation were to be passed by the Senate this week-and let us just quote a hypothetical case-how would such a mechanism work? Let us say that the Minister makes his first declaration tomorrow. That decision would not be reviewable until Parliament resumed sitting on 21 August. As the Minister said in his second reading speech:

Review by the Houses of Parliament will, in effect, be the only review of the merits of the Minister's decision to make a declaration.

A declaration could be in force, then, up to three months before it was subject to review. In that time individuals could be subject to the draconian penalties of $10,000 or five years imprisonment or both. For companies, the fine is $50, 000. Even at the end of three months the Parliament would have to come to terms with how to review a Minister's declaration based on an application that may never have been in written form. Consider the further complication under this legislation that the original application need only be filed orally. Clearly the discretionary powers available to the Minister are too wide and the opportunity to review is absolutely meaningless.

The Bill is an exercise in omnipotence that will give the Minister such powers of intervention that he could dictate the future of virtually any land or waterway in Australia. The Minister's declaration could prevent the occupation, use and development of any area for up to two years. I must remind the Senate that this can be done without giving any compensation. Although, as the title of the Bill states, the legislation is intended as an interim measure, there are so many fundamental flaws of this nature that the Opposition has no other responsible alternative but to oppose the Bill. That is what we will be doing when the Bill comes to a vote.