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Friday, 15 June 1984
Page: 3149


Senator KILGARIFF(3.42) —I say, in speaking to the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill 1984, that I was sorry to hear Senator Jones say, with regard to Queenslanders and Torres Strait Islanders, that in a visit to that area he found that the culture of those people had been lost. All he found, I think he said, was one old man making a comb. He seemed to find that the Government of that area was responsible for this. I point out to the Senate that the Aboriginal people retain considerable culture, particularly in the outback of Australia. But there is no doubt that their culture is under attack. I am speaking of the culture of the traditional owners, the tribes that live in the remote areas today. But it seems to me that the attack on their culture comes particularly from Aboriginal people who live in the towns and who are without Aboriginal culture.

It absolutely amazes me that we have heard no voice from the Aboriginal people in the towns regarding this legislation; yet the poor, unfortunate traditional owner in the outback has not seen the legislation and is only now coming forward to ask: 'Can the Bill be adjourned until I have a better understanding of it?'. The Bill is a remarkable piece of legislation because it gives the Minister for Aboriginal Affairs (Mr Holding) almost unlimited discretionary powers. It is also remarkable, as I have indicated, that the people to whom it is directed, or who it is supposedly protecting-the traditional owners, the people with culture- have not been consulted. They had not even heard of the legislation until the matter was raised in the Australian media in the last two weeks. I find this amazing because the Aboriginal people, who are involved in organisations-and, as I say, who are not traditional people-who have been aware of this legislation and who, on other occasions have been the first to voice what they say is what the traditional people are thinking, in this particular case are silent. They are silent because this legislation originated from a proposal first made by the National Aboriginal Conference. The Minister for Aboriginal Affairs (Mr Holding) then picked up that proposal. Aboriginal people in remote areas say that the NAC in its present form does not relate to them. It does not represent the traditional owners. Any honourable senator who does not believe me can sit down with these people and be told the same thing. Dr Coombs, following the review- with which I think the Government had some involvement-of the role of the NAC, has recommended that the form of the NAC be changed. Thus I think there has been indecent haste with this legislation.

There has to be legislation to protect sacred sites and sacred objects, but there also has to be an understanding of what that is all about. The people themselves have to be consulted. Fancy having legislation brought in and pushed through with indecent haste with the people to whom it relates hardly having heard of it nor having been consulted about it. Many people in this Senate today have had approaches from these people asking that before we pass this legislation we consult with them to ensure that the legislation does what it is supposed to do. Of course, the legislation does not do that. The frame of the legislation is such that sacred sites can be abused. It is said that governments and everyone else must heed Aboriginal law and work in with it. Judge Else- Mitchell and various other people working on law reform say that we must work in with Aboriginal law. Honourable senators need not heed my words; if they wish and if they are interested they may talk to the Aboriginal people. They will then find that this legislation, as it is now framed, is against Aboriginal law. The clause headed 'Declarations in relation to objects' is against Aboriginal law. Under that clause a person, not necessarily Aboriginal, can orally make application regarding a specific object or class of objects. The person does not have to be Aboriginal; as is often the case, that person can be a non-Aboriginal claiming to speak on behalf of Aboriginal people.

If one sits down with the people, as I did two Saturdays ago with the Aranda people, one discovers that they disagree with this legislation with respect to access to sacred objects. They themselves cannot speak of their ceremonial things, the churingas and the like, nor can anybody else handle their ceremonial things. They are not in a position to be able to do so, yet by this provision anybody can say: 'Look at this churinga from the eastern MacDonnells. I think we ought to do this or that about it'. I tell the Senate quite truthfully that the Aboriginal people are absolutely horrified. If the Minister has good intentions in regard to this matter I ask him not to act with this indecent haste, to go back to the people first an then come back here in August, September, October or whatever and report to the Parliament. He should consult with the people first. I can assure you, Madam Acting Deputy President, that if this were done, the legislation that is before us today would be in a much different form.

Many organisations such as the Mbantarinya, a traditional group of Aranda people, and the Choritja of the eastern MacDonnells who had a big meeting recently at Alcoota, say that not hundreds but absolutely thousands of people who still retain their culture and their traditional ways are against and horrified by what we are doing here in the Senate today. I am absolutely amazed that we see fit to carry on in the way we are today. As I say, it was not I who approached the Aboriginal people some two Saturdays ago. It was not I who sought them out and nor have I done so since. However, I have known them for very many years and they are in despair about what they can do to stop this business of opening up their ceremonial objects to the world. I am speaking about only one aspect of this legislation. Please understand that the churinga and other sacred things are not just valuable to them, they are their whole life. As I have said before, no one can speak on their behalf regarding their sacred things nor can they speak to other people about their sacred things. Yet, this legislation does exactly the opposite-it opens up the situation.

What can one say and what can one do about this problem? I could go on for ages just on that point.


Senator Cook —You have not said anything yet.


Senator KILGARIFF —I am sorry if the honourable senator feels that way. Can I just get on to one particular point? I ask honourable senators not to think I am being dramatic when I say that this legislation as it is framed now is seen by the traditional people as dabbling in their sacred things and Aboriginal law-as I say, I am not being dramatic so I just say this quietly-and can bring about what is called pay-back. Do honourable senators think that pay-back is a thing of the past? It is not a thing of the past. In the remote areas of Australia where much of the traditional way of life is still carried on, very few white people would recognise an act of pay-back. Neither would I. I would not be able to recognise it. I have been assured by the Aranda people that legislation of this sort will bring about such a confused situation that, getting down to the nitty-gritty of the tribal situation, interference with churingas will lead to a situation in which someone in amongst the Aboriginal people will, perhaps deliberately, do something that contravenes Aborignal law. Whatever form it takes, there will be pay-back.

Where do we go now regarding this legislation? I can speak, as many honourable senators have, about the various approaches that have been made by various people-not only Aboriginal organisations but also the Australian Mining Industry Council, the National Farmers Federation, the Australian Petroleum Exploration Association Ltd and the Australian Archaeological Association. Those people and organisations have tried to have their voices heard. They have said many things, but basically what it really adds up to is that they want something that will do the work that this legislation is supposedly trying to do, but which it will not do. I repeat that the Aboriginal people have asked me-at least those in central Australia-why they cannot be heard. Why has the legislation not been referred to them? No one has spoken to them about the legislation. They know nothing about it other than what they have gained themselves.

They did gain the knowledge that under clause 12, which relates to declarations in regard to objects, that the Minister has a wide-open go. The legislation gives him incredible powers. The most incredible thing, when one considers this matter, is that a person-as I have said, he may not necessarily be an Aboriginal person-can make an oral application. I can well imagine that in many cases an application could come from a white person. These days there are many white people who see their way, whether with good intentions or not, to speak on behalf of the Aboriginal people. The Aboriginal people are quite capable of speaking for themselves regardless of the people who attach themselves to them. I make the point that a person who attaches himself to the Aboriginal people can speak as if he represents them when he does not represent them. That is one of the biggest faults that I see.

Let us consider the Australian Petroleum Exploration Association. We must admit that over the last few weeks endeavours have been made to solve the problems which have occurred. I will not get on to the topic of Aboriginal land except to say that there have been problems regarding licences. Negotiations never seem to get to the point where something is accomplished. The APEA has voiced its concerns under the following headings: 'The Broader Community Interest', 'Land Tenure Subject to Declaration', 'Existing Rights to Land', 'Compensation for Loss', 'Status of Applicants' and 'Areas of Significance'. Why is time not taken to understand the difference between a sacred site and an area or site of significance? It is not explained in this legislation. If people want to dabble in such legislation why on earth are proper definitions not provided so that people can clearly understand what is a sacred site and what is something of significance? For God's sake, we know that our church is a sacred site.


Senator Withers —Oh, now! It may be consecrated but that does not make it sacred .


Senator KILGARIFF —It depends on whether one is a Christian. I presume that a church is a sacred site, but we have other things which are of significance. There is clearly a lot of misunderstanding about the whole situation. I would like to say a lot more about this matter but I will just read to the Senate one media report which was in the Northern Territory News of 6 June. It is headed ' Aborigines seek delay in Heritage Bill', and says:

Northern Territory Aborigines are mobilising against a controversial Aboriginal and Islander heritage legislation.

Representatives of Central Australia's 5,000 strong Aranda and Choritja communities have telexed their concern to Federal Aboriginal Affairs Minister, Clyde Holding, and the Australian Democrats, asking them to delay the passage of the Bill until amendments are made.

Spokesman Alderman Bob Liddle-

the first Aboriginal alderman in Alice Springs, who is a member of the Aranda people and whose ties are with that group-

said the legislation could cause death among Aborigines and divisiveness among the general Australian community.

Mr Liddle, the first Aboriginal alderman elected in Alice Springs, accused Mr Holding of bullying traditional Aborigines, many of whom he claimed had no knowledge of the legislation.

'It is a potentially dangerous piece of legislation, particularly the clause which stipulates that any outsider can advise the Minister of areas which are sacred sites', he said.

'It goes against the traditional decision-making process.

Traditionally no Aborigine can speak on behalf of owners.

Even present day people can be killed because of talking about other people's sacred sites.'

That is another reference to Aboriginal law. The report continues:

Many traditional people in rural areas don't know about the Bill.

It gives the Minister immense power and we can't have a white Minister in Parliament deciding what's sacred and what's not.'

That is a rather pertinent point. It goes on:

He is being regarded as a bully.

I've been out to many rural communities and they're saying this man's a bully.

He is being influenced by the NAC and the National Aboriginal and Island Heritage Organisation who have nothing to do with tribal people.

We have called on the Minister to withdraw the Bill until proper consultation has taken place with rural people.

I suppose even Aboriginal people should be consulted, particularly in regard to legislation such as this.


Senator Messner —But he claims he has consulted with them.


Senator KILGARIFF —The Minister for Aboriginal Affairs is misleading Parliament if he has said that. If he did not say it in the Federal Parliament but said it in other places, he is misleading the people of Australia. The report in the Northern Territory News continues:

'We would like to see clauses giving the Minister power to receive information from organisations and white people amended or omitted.'

That is very interesting. The article goes on even further:

Mr Liddle said a representative of the Hermannsberg community, Mr Helmut Parourltja-

He has an outstation near Gosse Bluff, about 200 miles west of Alice Springs.


Senator Cook —What's his address?


Senator KILGARIFF —I have to acknowledge that foolish interjection of the honourable senator opposite. His address is out in the remote areas of South Australia where Aboriginal people and their law and culture still abound despite , as I have indicated, attacks on their way of life. I return to the article:

had also telexed Canberra, stating the consequences to Aborigines if the Bill stands as it is.

Mr Liddle said he did not trust Mr Holding not to override the NT Sacred Sites Act if he felt like it.

'It is only his word that he won't and he can turn around and just do it.'

Mr Liddle and the prominent central Australian Aboriginal, Mrs Rosie Kunoth- Monks, will be meeting with other Aborigines . . .

My understanding is that because sufficient information could not be obtained and no communication was had with these people, nothing has really occurred even though these people wanted to come to Canberra in strength to meet the Federal parliamentarians who had received a communication from them saying that they would like to come here. Who acknowledged that and who encouraged them to come to Canberra? That is a very interesting point. I do not think the Aboriginal people would have got much encouragement. Finally, I have a copy of a telex dated 29 May 1984 which was sent to Mr Holding, the Minister for Aboriginal Affairs, by Paul Everingham regarding the proposed national Aboriginal heritage legislation. It reads:

In your telex of 30 April you asked for my comments on the draft Bill which had been separately dispatched to my Department on the same day.

I suppose all other governments and everyone else who actually received a copy of the legislation might have had it for four or five weeks; the Aboriginal people did not. The telex continues:

You sought my reaction by May 4.

It is extraordinary that after discussing such legislation for months with Aboriginal groups--

as I understand it, the Aboriginal group was the National Aboriginal Conference-

without any reference at all to the relevant State and Territory authorities you should suddenly produce the Bill and seek my considered opinion on it in less than a week. I gather that you placed my State counterparts in the same position . Apparently, you have forgotten the assurances you gave at the last AAAC meeting in Melbourne when the subject of national sacred sites legislation was raised that you would give all governments ample opportunity to consider the legislation and comment on it.

So far as the protection of significant or sacred sites and areas is concerned, the Territory Government sees no need for Commonwealth legislation in this field . I might remind you that Judge Toohey also felt that the matter was best covered by Territory Legislation. I agree that there is a need to empower either the sacred sites authority or the relevant Territory Minister (and my preference is for the Minister) to take immediate action when sites are threatened. I am quite prepared to amend the Territory Act to provide the kind of rapid protection you envisaged in your Bill. Nonetheless, it should remain Territory legislation.

So far as significant objects and remains are concerned, this is quite a different matter. Our native and historical objects and Areas Preservation Act is little changed since it was passed in 1955, and is out of date. Completely new legislation has been under consideration by my Government for over two years . However, unlike sacred sites and areas of land, sacred objects and human remains are easily movable, and I am aware of the problems which have arisen with the removal and sale of objects across State borders. In this field, I believe that complementary Commonwealth legislation is justified.

To summarise, therefore, the Territory Government reaction is that your Bill should not proceed. Protection of sacred sites should be left to the appropriate State and Territory authorities. Commonwealth legislation should be introduced to protect sacred objects and remains.

In closing, one can only be cynical about the way in which this legislation has been introduced. I, like many other senators here, do not support it. I note that there are many government advisers in the Senate chamber. Their advice could not have been heeded, considering the way in which the Bill has been framed. I ask the Government to take the legislation back from where it came and to produce it again in a way that will help the Aboriginal people and not hurt them.