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Wednesday, 22 August 1984
Page: 138


Senator CHANEY (Leader of the Opposition)(3.06) —I move:

That, in the opinion of the Senate, the following is a matter of urgency:

The need for the government to repeal the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act because it is the wrong way to protect Aboriginal sacred sites and because of the conflict it is causing between Aboriginals and governments and between State and Federal governments.

When the Senate rose on 15 June, it left behind it as a final debate the debate on the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill. On the final Friday's sitting, there was a quite lengthy debate, in which the Opposition made it clear that it was opposed to this legislation for a range of reasons. It is important that I should immediately again place on the record the fact that the opposition to the legislation was not based on any failure to realise the importance of protecting sites of particular significance to Aboriginal people. As I said in my speech at that time, one of the welcome features of the debate was the universal affirmation by honourable senators from both sides of the chamber that they were in favour of the protection of sites which are sacred to Aboriginal people. I mentioned that I and those other Opposition speakers who had spoken before me-Senator Messner, who led for the Opposition, Senator Crichton-Browne and Senator Boswell-were at one in asserting the importance of that objective. But our concern was that the form of legislation which had been put before us was, for a range of reasons, the wrong legislation, inappropriate legislation and legislation which should not be passed.

As I said in that debate, the Opposition is opposed to the legislation because we think that it is bad for Australia, bad for the Aboriginal people, and, in particular, potentially bad for the relations between Aboriginals and other Australians. I think that the events of the recent two months have really borne out the accuracy of our concerns about the legislation. As is said in the motion we have brought before the Senate today as a matter of urgency, it is not only the problem of causing difficulties for Australia and for Aboriginal people; it is not only a matter of creating bad relationships between Aboriginals and other Australians; there has even been clear evidence of additional conflict between governments, and in particular between the State Government of Western Australia and this Federal Government, a conflict which, I hasten to point out, occurred notwithstanding the fact that both of those governments are Labor governments.

We were concerned about this legislation because, in our view, it was clearly defective. Again I refer to something that I said in that earlier debate. We were concerned that the breadth of definitions in the Bill would put the Minister in a totally impossible position in terms of denying or acceding to particular claims. I said:

Unless the Bill is meant to protect the generality of land which is of significance to living Aboriginals, there is no way one can spell out from it the particular thing that gives land significance which would demand attention.

Again, the events of the last few months indicate very clearly that the fears that we expressed then in that regard have been amply borne out.

In the course of this debate I want to describe some of the things which have occurred with respect to this legislation over recent months, things which I think clearly indicate that the legislation has been counterproductive in the ways that we suggested it would be. I intend in this debate to quote mainly from Aboriginal and Labor spokesmen. I understand that there are some political divisions on this but I think the significant fact is that out of the mouths of Labor spokesmen themselves and senior Aboriginal spokesmen is the proof of the concerns which we expressed some months ago. I believe that in this delicate area the Government, rather than pursuing this interim legislation for two years , ought to be prepared to admit that on the basis of early experience it was wrong to pass the legislation and it should remove it. The general concern that I and the Opposition expressed about the width of the definitions is in a sense borne out by Mr Holding's remark when he was commenting on the fact that the Government had refused the first three applications for protection brought under the Act. The three applications lodged involved firstly the Harding River Dam project in Western Australia-that is a matter which would be very familiar to you, Madam Acting Deputy President-and the others involved road construction through the Daintree rainforest in Queensland and sand mining on Stradbroke Island. In each case the Minister-in one case it was the Minister for Education and Youth Affairs (Senator Ryan) who may have been involved in others, but I know that Senator Ryan was concerned in the Western Australian decision-and the Government rejected the applications. I quote from a newspaper report of what Mr Holding said and I have not seen any denials of it. He said:

. . . the legislation would not be used to achieve the wider objectives of the conservation movement. ''We are not in the business of misapplying legislation to suit the needs of an applicant, just because he or she happens to be an Aborigine.''

That statement from Mr Holding really encapsulates the difficulty that I was trying to indicate and which led me to say in the previous debate that this legislation is bad not only for Aboriginal people and for this country but even for the Government. The legislation is so widely drawn that applications can be brought legitimately before the Government across a range, which really means that the Minister is always faced with what is fundamentally a political choice, a political decisions because the Act itself is not specific. I think it is quite clear from the reactions there have been from the Aboriginal community quite apart from anyone else, over the attitude which has been adopted by the Government, that what the Government has done is to put itself in an impossible position and it ought to be prepared to withdraw gracefully.

I have referred to the earlier debate because it is the easiest thing in the world for this sort of debate to get off course. I assert very strongly that it is totally consistent with the desire to preserve Aboriginal items and places of particular Aboriginal interest that this legislation should go. It is quite clear that there are senior Labor Ministers who agree with that proposition. It is not a partisan proposition; it is a proposition which I think can be asserted on the basis of the reality of the facts and the reality of the system of government that we have in Australia. I do not believe that it is good enough to do as Senator Ryan did in the previous debate, to hide behind the fact that this is two-year legislation with a sunset clause and that there is an opportunity for review at the end of that period. I believe that two years is a long time in Aboriginal affairs in the mid-1980s. I do not believe that the sort of performance that we have had over recent months should be allowed to go on for two years.

The matters that I want to refer to, as I have said, are particularly concerned with the statements of people who are not from my Party. I do that because I wish to demonstrate that this is a matter which goes beyond the sorts of basic fundamental federalist policies of the Party of which I am part, which have always led us to oppose the idea of national legislation. It goes beyond any question of its being a simply partisan dispute between governments of the day and oppositions of the day. It goes in fact, as I said before, to the realities of this matter. As I have said before in this place, the Australian Labor Party approach at both the State and Federal level is having an effect on Aboriginal expectations and indeed has already raised those expectations beyond the point at which they can hope to be realised. That, of course, has raised the level of demands which are made by Aboriginal people. That in turn has turned off many of the public from sympathy for the Aboriginal cause and now, when Aboriginal expectations raised by the Labor Party are not being met, we see a dashing of Aboriginal hopes and a new element of bitterness in the public debate and discussion.

I think the Government recognised very early that it had bitten off a very difficult issue. I think the Prime Minister (Mr Hawke) intervened and gave assurances to some of those who made representations that the Minister would have the assistance or the surveillance-I am not sure which-of some of his colleagues in dealing with these difficult matters. But I say that as long as this legislation remains on the books with its very broad form we have a formula for further difficulty which I believe the Aboriginal issue can do without.

Madam Acting Deputy President, many of the people that I will be quoting in this debate are well known to you and I believe that none of those that I quote would be regarded by you as people of malice, ill-will or bad faith. The fact is that they have responded very strongly against measures which have been taken under this legislation. Let me, in looking at the application which was brought in Western Australia to protect sites which were said to be affected by the Harding Dam construction, turn to a statement made by the Acting Premier of Western Australia, Mal Bryce, which he made on 2 August. Mr Bryce issued a news release. I will table it but I will quote part of it. It stated:

The State Government's worst predictions of the Federal Governments Aboriginal and Torres Strait Islander heritage legislation were substantiated by an absurd and ill-advised attempt by an Aboriginal group in Roebourne to stop work on the Harding River Dam . . .

Mr Bryce said the Minister with Special responsibility for Aboriginal Affairs had been advised by a lawyer form the Aboriginal Legal Service that an application under the Aboriginal and Torres Strait Islander Act 1984 was to be made to stop the work.

Mr Bryce said the application made a mockery of the Seaman Land Inquiry and undermined genuine efforts to develop a land policy which took into account conflicting interests.

At the end it stated:

. . . it was particularly regrettable that the Aboriginal Legal Service had chosen to act in such an irresponsible fashion and that such action only gave credence to critics of the service.

That statement was made by a senior Labor politician from our State of Western Australia. His worst predictions were realised. The claim brought on behalf of those Roebourne Aboriginals was described as 'absurd and ill-advised'. The facts of the matter may be, Madam Acting Deputy President, that to bring the claim at that time had an element of absurdity about it given the advanced nature of the work, but you would know how strongly Aboriginal people have reacted against that description of what was done. As an ex-supporter of the Aboriginal Legal Service, and as one who was on the board of that body for many years, I find it a sad thing that when a service acting in a legal capacity for a client seeks to assert rights given under Commonwealth legislation it is described as acting in an irresponsible fashion. It may be that Mr Bryce has evidence that the Aboriginal Legal Service of Western Australia set out to create this difficulty, that it did not act on the instructions of its clients but rather incited its clients to bring this action, but unless Mr Bryce has evidence of that, that is an attack on a body which simply puts it into disrepute. I think that if Mr Bryce was going to make that sort of statement he should either give the foundation for it or withdraw it.

The next step we find was publicity about a flurry of phone calls between the angry Mr Burke and Mr Hawke and the Acting Federal Aboriginal Affairs Minister, Senator Susan Ryan, with a complete rethink promised about the way in which Aborigines can apply to have sacred sites protected under the heritage legislation. There are to be changes which, it is suggested, should require applications to be made to the State authority. Nothing much seems to have come of that but it was all part of the public flurry of concern and publicity which occurred following this application. We find the Western Australian Aboriginal Affairs Minister, Mr Wilson, urging the Federal Government not to proceed any further with the claims, which he says should be referred to the State's own heritage legislation. Yesterday Mr Wilson-I now quote from a Western Australian report-said:

. . . that the matter should not have been referred to a Federal Minister.

'If the Minister seeks to appease these applicants then we could have a whole spate of similar applications . . .'This would have severe implications for other projects . . .

. . . . . . . . .

The Western Australia Labor Party initially opposed the dam . . . but it announced last year that the project would go ahead because work had gone too far to be stopped.

We find that the Minister for Aboriginal Affairs (Mr Holding) is opposed to the fact that this matter was, and could be, referred to the Federal Government. Yet under this legislation these people, of course, had a perfect right to come to the Federal Government, even though that was perhaps most unwise in a political sense. The situation is complicated because at the same time we have reports that the elders involved had no complaints about the position that had been reached. Again a day or so later we find further reports to the effect that the State Government had challenged the Prime Minister to reject the claims and promised open confrontation if those claims were not rejected. In a sense that again illustrates perfectly why we objected to the form of this legislation. The Minister has been given the responsibility for determining whether there should be protection in making his decisions in the face of warnings that the State Government is:

. . . 'prepared to man the barricades' rather than face defeat by Canberra . . .

On what basis can we say that this is the appropriate context of debate within which one should determine these delicate matters? In the limited time I have I do not believe that I can deal with very many more of the references which I wish to put before the Senate. However, the Western Australian Government has made it quite clear that what it wants is for its legislation to take precedence and effectively for the Commonwealth legislation not to apply. I think if we look at the reaction of Aboriginal people to the Government's refusal to act under the Commonwealth legislation it becomes even clearer that the Commonwealth should extricate itself from the mess it has got itself into. Madam Acting Deputy President, it can have given you no pleasure to read in the papers statements by National Aboriginal Conference representatives to the effect that there had been a betrayal of Aboriginal trust and a demonstration that the Government's posturing on sacred sites is a sham. I refer to the statements of Mr Peter Yu who is reported to have said:

'Federal posturing on the protection of sacred sites has been revealed for the sham it is.'

The decision compromised the heritage legislation merely to accommodate the anti-Aboriginal philosophies of a renegade Labor State Government . . .

'What possible faith can we have in Federal legislation now that sacred sites have been ruled expendable?'

The reality is that this is a matter in which the politics of Aboriginal affairs and the politics of confrontation will assert themselves over and over again if we maintain the wide and undefined framework of this legislation. I say to the Government that I believe that it is serving no interest at all. It is not serving the interests of Aboriginals; it is not serving the interests of the Government itself; it is certainly not serving the interests of Australia to maintain the position that it is now in. I now refer the Senate to statements made by members of the Labor Government of Western Australia in the extensive Assembly debate on this matter. I think it becomes quite clear that the Government has got itself in a position where there is no support even from its own bodies and organs. The Acting Premier, Mr Bryce, was quoted in the Daily News as saying:

Before the Federal Government can implement Aboriginal land rights throughout Australia they need the co-operation of State governments and there is a maze of formulae we could use to frustrate national aspirations in this area.

Madam Acting Deputy President, I know that you and your colleagues would have been on your feet complaining bitterly if that statement had been made by a Liberal, by me or any of my colleagues. In fact, the statement reflects the legal opinion published in one of the Senate committee reports years ago about the difficulties of national land rights legislation. However, the reality of what we are saddled with now is the sort of division evident in the statements which I have been quoting. I will quickly refer further to the Hansard of the Western Australian Assembly where Mr Wilson stated:

. . . I stress the point that the Government is of the opinion . . . that mirror legislation is probably a reasonable aspiration on the part of the State and Federal Governments. However, this Government will continue to oppose strongly the thought that any Federal legislation should override existing State legislation. We have continually advanced our opposition to the Federal Government in this regard.

Later he said:

When I spoke about mirror legislation, I was making the point that we would be prepared to accept mirror legislation, but only on the basis that any complementary or mirror Commonwealth legislation respected the pre-eminence of State legislation.

There are other statements. Perhaps the last I will quote is a statement of Mr Peter Dowding whose views are well known to you, Madam Acting Deputy President. On this matter he said in the Legislative Council:

The Government takes the view that the issues of Aboriginal heritage and the protection of sacred sites are State matters. That is the position we have taken all along. The Government has accepted that responsibility and sees no point in supporting a motion of this kind.

The motion was one that sought the repeal of the legislation. I ask the Government to consider this matter with care. In terms of the great national issues which face Australia this is but one and some would say a minor issue. I say with very strong personal conviction that the Government is heading down some dangerous paths in this area. It is causing concern and resentment and it is not achieving its objectives. I believe the Government should be prepared to repeal this legislation and to accept the offer which is so readily available outside to approach this matter through the State organs which are available but also to deal with all of the bodies that have indicated their support for the protection of the sites and have indicated their absolute and irrevocable opposition to this way of doing it. Madam Acting Deputy President, I thought in fairness I would table the first Press release I quoted from. There are a couple of paragraphs I thought irrelevant but other senators might think them relevant. I seek leave to table the Press release of 2 August 1984 of the Acting Premier, Mr Bryce.

Leave granted.