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Friday, 15 June 1984
Page: 3161


Senator MacGIBBON(5.06) —The Senate is debating the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill 1984. Let me say at the outset that we in the Liberal Party and the National Party have no quarrel with the purposes of the Bill. The purposes are defined on page 3, clause 4. For the benefit of the Senate I will read the clause which states:

Purposes of Act

The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

We support, and have always supported, the preservation and protection from injury of all aspects of Aboriginal society and culture. Aboriginal objects, their remains and relics, and places of spiritual significance, have all been looked after by the Liberal-National parties at a federal level, because it is inherent in our philosophy and in our practice. We believe in the importance in society of both the individual and minority groups. We believe in the importance of minority groups and the individual over the State and over the agents of the State. We believe in their personal freedoms and the right to their individual religious and cultural practices. That is why Australia is a free society today. It is a consequence of the 62-odd years that the Liberal Party has governed Australia since Federation, as against the 21-odd years that the Australian Labor Party has been in government. Our record of government attests to our concern for minority groups and for all that is associated with their cultural values.

That is why we would be very happy to support this Bill if it were drafted in such a way that it could fulfil the noble purposes that are enshrined in clause 4. Alas, it falls very far short of those ideals. It falls short in a dangerous way, and in a way that we simply cannot support. What is more, we cannot even see a way of modifying it by way of amendments to make it workable.

Earlier speakers on this side of the Senate have drawn attention to some of the principal defects of the Bill. Since time is short, I will not go through all the problems of the Bill, but I wish to draw attention to a few things that concern me, a few things that, in the pursuit of the protection of Aboriginal culture, worry me more than a little. I think the principal point is that this Bill gives very great powers to the Minister for Aboriginal Affairs to intercede in the attaining of the goals contained in the legislation. The legislation does not clearly define where those great powers to intercede will be used. The Bill provides very great penalties for breaches of the Act and, just as it does not clearly define where the Minister can act, it does not clearly define on what grounds those great penalties can be levied.

Beyond that, we have an emergency clause in the Bill. It is rather hard to see the need for emergency powers. They really give not only the Minister but also any of his designated agents the right of enormous immediate action. The powers that are granted there are without restraint. It is most unusual for such powers to prevail in the legislative pattern that has existed in Australia since Federation.

I mention the offences and penalties clause, clause 22 of the Bill. The Bill is concerned with two divisions, Aboriginal areas or sites and Aboriginal objects. There is a $10,000 fine or a five year period of imprisonment for offences committed by individuals against Aboriginal areas. The penalty for bodies corporate is $50,000. The penalty for an offence against Aboriginal objects committed by a person is $5,000 or two years imprisonment. If the offence has been committed by a body corporate, the penalty is $25,000. I believe that laws must have penalties that deter. If we have minor penalties, we are wasting our time because people will breach them at will. But I just wonder whether these penalties are not draconian if we consider the rest of Australia.


Senator Cook —They are maximums.


Senator MacGIBBON —That is true; they are maximums, but by the same token if somebody desecrates a grave in a city in some States, the penalty is only $40 or three months gaol. I am conscious of a very great disparity between other penalties and the penalties provided for in this Bill.

The Bill is concerned with both areas and relics. A couple of specific points in relation to areas or territorial claims concern me greatly. The Bill fails to relate how we are to define an Aboriginal area. It does not outline what methods will be used to define the significance of a nominated site. The Bill gives no consideration at all to the vast difference between areas which are of religious significance-that is, genuine sacred sites-and those that are of traditional significance. The Bill has no method of consultation with the traditional owners of the area. In the absence of that, one is entitled to ask to what authority the Minister will refer. We know full well the incompleteness of the ethnic history of this country. In fact, most of that history is undiscoverable at this point. Conversely, the civil rights of property owners at present are not protected in any way. They can be denied access to or use of their own land. In that sense, the Minister is given extraordinary powers over the property rights of all Australian citizens.

In short, this Bill is totally confused as a consequence of its very bad drafting. It has draconian powers and powers that are at such a level that they are more compatible with the martial law powers of a banana republic than with Australia. Our argument is that there is an infinitely more fair, just and more effective way to legislate for the Aboriginal culture than what is embodied in this Bill.

Over and above everything else, this is bad legislation because it is sectional legislation. It sets one section of the Australian community against another. There is no question at all that the section of the community most desperately in need is frequently the Aboriginal community. We all want to help that community. There is no question at all of the corporate will in Australia to help, but most of us want to help on the grounds of humanity. The basis of help should be on the basis of need, not on the basis of race or religion. We want to help Aboriginals because they are fellow Australians. This Bill does not do that . It is a sectional Bill. It is ill-conceived, ill-drafted and totally unworkable.