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Thursday, 14 June 1984
Page: 3072


Senator MACKLIN(8.50) — The Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill has caused an enormous amount of discussion and debate within the wider Australian community. It is unfortunate indeed that much of that debate has not concerned itself with the legislation that is before us. It is reasonable to expect that when one seeks to right a wrong, to remedy an injustice which has lasted for over 200 years, undoubtedly there will be concerns. Undoubtedly, many people will be fearful. At such times it is important to provide to the community information which is clear, accurate and based upon the legislation before us, not upon legislation that people think might be there or upon legislation they think that the Government might wish to put in place.

A document given to me by the National Aboriginal Conference states:

The National Aboriginal Conference has watched in amazement as the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill 1984 has been attacked from all sides. The Aboriginal people of Australia, represented through the National Aboriginal Conference, support this legislation but only for what it is-a limited scheme for the protection of sacred and significant sites and objects.

This legislation does not go far enough to protect the inherent and legitimate interests of Aboriginals and Torres Strait Islanders. It does not restore ownership of sacred and significant sites and objects to Aboriginals and Torres Strait Islander communities.

Yet we do support this urgent legislation. It provides crucial protection for indigenous cultural heritage where existing State and Territory legislation is inadequate or non-existent.

The Australian Government is obligated to provide that protection, both in the interests of justice to the original inhabitants of this continent and by its own commitments to international standards.

We compromised our position to ensure that the legislation would be adopted by the Australian Parliament. We anticipated opposition from mining industry and large landowners, but not the extent of their influence with certain members of the Australian Parliament.

Our message is clear. Our support for the legislation, and the reasons for that support, are clear. We, the National Aboriginal Conference, call for the immediate passage of this legislation.

I think that that letter ought be contrasted with the hysteria that has gone on in many places throughout Australia. The National Aboriginal Conference is to be commended for the way in which it has attempted over the last few weeks to bring some sanity to this debate. It is a pity in 1984 that the hysteria and the racism that have been spread about in relation to this Bill have been supported by so many people who ought to know better.

I turn now to the Bill itself. We see that what it does it does in only a very limited way. We are talking about objects which are of extreme importance to the Aboriginals of Australia. I say to the non-Aboriginal communities and people who might be listening that if there were a desecration of a church in the Australian Capital Territory, the penalty would be life imprisonment. For an offence under this Bill, it is a fine of $10,000. It is not penal servitude, as is the penalty required under the New South Wales penal code which applies here. So let us have some respect for other people's heritage, other people's understandings and other people's beliefs. If we had some of that in this country and could show some of that respect now, we might be able to understand the deep feelings of so many Aboriginal people about what has happened to them and to those things that are sacred to them.

I turn to the Bill and look at what is required under it. If there is a site which is significant to Aboriginal people or an object which is sacred to them they can go to the Minister and seek a declaration that it is, indeed, of significance. At that point the Minister is required to undertake action which one cannot but accept, if one reads the Bill carefully, is fair. Upon this type of request being made by an independent person, clause 10 (3) states:

Before a person submits a report to the Minister for the purposes of paragraph (1) (c), he shall-

(a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice-

(i) stating the purpose of the application . . .

It goes on in technical language and then says:

inviting interested persons to furnish representations in connection with the report.

Then it says that after due consideration of any representations so furnished and then submitting the report, the person shall attach to it these representations. In other words, these representations will not be put aside; they will be attached to the report. Where does that report go? That report goes to Parliament. A lot has been spread around that this gives the Minister dictatorial powers. This Bill is controlled by this House. Every declaration is a regulation and can be disallowed by this House. This House is the appropriate House in this country to engage in that activity. This is the appropriate House to review those declarations. Indeed, if this Bill had come in without that in it we would not have supported it. We would not have accepted a review by any other organisation except this House, and I will say why. It is because of the nature of the item that we are dealing with.

It is not possible to define a term such as sacredness. Many people in the community are waving their arms around and saying 'Define this'. I do not know if anybody else here has bothered to undertake any studies in order to try to understand the nature of sacredness, but I can inform those people here who may not have done so that it is an extremely complex matter. One would need to draw on volumes, indeed libraries, to understand the nature of sacredness as it is applied in cultures throughout the world.

Hence it is not appropriate for the Administrative Review Council or some other organisation to be involved in that. It is a discretionary judgment, but not a judgment that the Minister should make. There is only one other body in this country that can make discretionary judgments, and that is this Parliament. This Parliament ought to be the body which makes that discretionary judgment as to whether or not a matter is significant or sacred to Aboriginal people. It is not enough. If one has listened to the debate that has gone on in Australia over the last few weeks one knows that it is not enough for the Aboriginal people themselves to exert their own sacredness. It is not enough for so many non- Aboriginal people around Australia to say: 'If you say something is sacred, we will not accept that but you must accept that if we say something is sacred, it is'. Since that is not acceptable to so many people in Australia somebody must be given that unenviable task of deciding whether something is sacred to another person.

I believe it is important for me to state on behalf of the Australian Democrats what our view will be when we are called upon to make those judgments. I turn now to Clause 10 (4) of the Bill which relates to the report that will be before us when we are asked to make that judgment. Clause 10 (4) defines the matters that must be contained in the report. Clause 10 (4) (a) relates to:

the particular significance of the area to Aboriginals;

On this point we expect that the report would cover the significance not only to the person or persons making the application but also to the traditional owners of the objects or areas. This is a point that was raised by Senator Messner. Indeed, it is a point that has been made by a number of Aboriginal people. In some ways it is a point which belittles the intelligence of Aboriginal people and calls into question whether they would be senseless enough to take into their hands or possession objects sacred to other Aboriginal tribes or people. Anybody who understands anything about Aboriginal people would realise that to suggest that they would do that is an insult to their intelligence.

Because that problem exists we have gone to the Minister for Aboriginal Affairs and sought from him an assurance in relation to this matter. The Minister has responded by saying that he is willing to make an amendment to the Bill in the Budget session to require that where traditional owners are connected with those sites or objects then those traditional owners will be consulted. We will require that consultation to be stated in the report. We will require an explanation of seeking out those traditional owners. Clause 10 (4) (b) refers to :

the nature and extent of the threat of injury to, or desecration of, the area;

We believe that under this heading it is necessary that the report state quite clearly what the threat is and whether that will affect the area in any signifcant way. In some instances mere trespassing may be desecration. I simply ask again, as a result of the things that have been said in this debate, that people may have at least some respect for other people's traditions and sacredness. I am quite sure that people understand that in many of the churches belonging to our Western tradition there are areas that they may not walk in unless they are consecrated persons. To do so would be a desecration. If people try to take their own religious traditions and transpose them they might come to some understanding of these types of matters. They are not too difficult to understand. They simply require people to look at their own traditions and accept that other people have traditions which, although they might differ in material ways, in essence are identical. As I have said, in some instances mere trespass may be desecration and this will have to be indicated. In other areas this may not be so. Hence, obviously the report will have to detail the nature of the threat and the possible desecration that could occur in those areas.

Clause 10 (4) (c) states that the report would deal with 'the extent of the area that should be protected'. This is of concern. It is a concern which unfortunately has been magnified out of all proportions. But a concern does exist about the extent of some of these areas. I believe that is certainly a legitimate concern for many people in rural areas. At the moment most places which might be able to be identified as sacred sites in areas likely to be populated are already known. In many areas-certainly, from my experience, it is the case in Queensland-there is a working relationship between those people who hold pastoral leases, or freehold leases, and the Aboriginal groups. So those sites have already been protected. Those sites are already treated in the proper way. It is fairly obvious that we are not talking about those. So we are not talking about a large number of areas. We are talking about areas which may come under threat from some new activity. That is much more likely to be the instance that is covered by this Bill, not the continuing activity. Where there is new activity, obviously that must be addressed.

We believe that the extent of the area also involves the issue of compensation. I am sure that Senator Messner read the Minister's second reading speech which was incorporated in the Senate Hansard and which differs in some respect from that which was incorporated in the House of Representatives Hansard. In the Senate Hansard there is a more detailed discussion of compensation, which was inserted in that speech at our request. It does not add anything new. It merely explicates what was always the Government's intention with this aspect, and I think it is an important point. In paragraph (c) which deals with the report we would require that any move the Government intends to make in relation to compensation should be rehearsed. It may not be possible at that stage actually to detail it but the compensation moves can be rehearsed. Therefore, the Senate would have them before it. If it did not accept them, it then would have a case for disallowing that regulation or declaration which would then return the situation to the status quo. The protection is there and I am quite sure that every member of this chamber will take that as a serious consideration. The only way much of this argument can get a foothold in the community is by suggesting ill-will and maliciousness on the part of so many people. I do not believe that that would be the case with honourable senators in this chamber. Therefore, they have the possibility in all good will to address themselves to the compensation issues in that report. On behalf of the Australian Democrats I say that we would require rehearsing of those compensation details.

Clause 10 (4) (d) states that the report would deal with 'the prohibitions and restrictions to be made with respect to the area'. Again, we believe these must be set down clearly so that there is no possibility of misunderstanding or misinterpretation. This may sometimes be difficult. Although the Bill does not require a report to be made on sacred objects, we believe such a report should be made on sacred objects in almost identical terms as it will be made on areas, with necessary changes made. In regard to some sacred objects, it is not appropriate to rehearse before the non-initiated, who sometimes may be women and sometimes men, the exact nature of those objects. I hope that members of the Senate can respect that tradition. There may have to be a certain amount of acceptance on the part of members of the Senate with particular regard to sacred objects. I think that as far as is possible the report should set down clearly the prohibitions and restrictions to be made.

Clause 10 (4) (e) states that the report shall deal with 'the effects of the making of a declaration may have on the proprietary or pecuniary interests'-that section was amended in the House of Representatives-'of persons other than the Aboriginal or Aboriginals referred to in paragraph (1) (a)'. For many people in this chamber, and indeed probably for most people who object to this legislation , this is the most important point of all.

I will spell out in a little more detail what the Democrats expect of the report. Firstly, we believe that it should set down the traditional use of the land or the object by non-Aboriginal people or Aboriginals other than those making the application. It is an interesting part of this debate that Aboriginals are never seen as being the owners of the mining company or companies. Let us get it very clear: Many of these applications may very well be made by Aboriginals and the people who are currently in possession of such companies may be Aboriginals. I think that the implied racism that has gone on during some of the debate I have heard-that is, that it is whites on one side and Aboriginals on the other-has not accepted the current and new situation which is that Aboriginals now have many flourishing and productive businesses in Australia and own considerable amounts of land in their own right. Where an object is being used, the use by Aboriginals or non-Aboriginal people other than those making the application, including the amount of expenditure made and profit derived from the land or object, should be set down in the report.

Secondly, the report should set down any special use of the land, including such things as mining exploration by non-Aboriginals or Aboriginals other than those making the application, corporate bodies and the like, and the expenditure involved in such special use and the expected profits. Thirdly, the report should set down the broader community interests in the land or objects, including any expected government involvement or any other expenditure. Fourthly , the report should set down any possible future use of the land or object, including mining and the merits thereof. Fifthly, the report should set down submissions from all interested people, as is required by the Bill in relation to land but not required in relation to objects. We do not believe that such distinctions ought to be made. Where objects present a more significant problem, to the extent that they are able to be included we believe that they should be included.

Clause 10 (4) (f) states that the report shall deal with the duration of any declaration. We believe that the majority of these declarations, by their very nature, will be indefinite. But where they are not to be indefinite, we expect that there should be clear reasons as to why a declaration would need to be made for a short period and the implications of that declaration being made for a short period. However, I do not see that as being likely to be the case very often. One would imagine that any declaration made under this paragraph would be of an indefinite nature. One can see, of course, that where State law is sufficient this may in itself be a reason why the duration of such a declaration is limited.

Clause 10 (4) (g) states that the report shall deal with the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law. That is spelt out very clearly in the legislation. I simply say in addition that we would require and would believe that the Minister should include the discussions that have taken place with the relevant States in regard to the application of their laws and the problems that the Commonwealth Minister sees in the actions which the States have taken or have not taken in that regard. This Bill states quite clearly that if there is a law of sufficient extension in a particular State to cover a particular area or object, that law ought apply unless there are special circumstances. So we believe that it is incumbent on the Minister in reporting to this chamber that those special circumstances be spelt out.

It is a pity that the debate in the community has gone on the way it has. It seems to the Australian Democrats a pity that in 1984 Aboriginal people should be called upon yet again to defend their legitimate interests in seeking to remedy what they see as a wrong that has extended over such an enormous period. I say to those people who cannot feel personally such concern: Can they merely accept that if they travel around Australia and talk to Aboriginal people they will meet time and again Aboriginal people whose parents have been shot and whose parents have been murdered? These are things which have happened in the living generation of Aboriginals in Australia. I believe, and I am quite confident, that this is not something that anyone in this chamber would in any way believe we should be proud of or should look up to; indeed, it is something which we must all be ashamed has occurred in this country. If that is the case, could not people find it in their understanding of this issue at least to say: ' Yes, this has occurred to a group of people and we must give something'. It will be a sacrifice on the part of some people, but that sacrifice ought to be borne by the entire Australian nation; hence I have spoken at length about our requirements for the report. It should not be borne by individuals, and I believe it is up to this chamber to make sure that that cost and sacrifice, which will have to be made on behalf of the wider Australian community, is borne by the wider Australian community in the interests of restoring to Australia what I believe we all want; that is, harmony between the original inhabitants of this land and those who have settled here since then.