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Wednesday, 22 August 1984
Page: 142


Senator RYAN (Minister for Education and Youth Affairs)(3.26) —Senator Chaney in bringing forward this urgency motion on behalf of the Opposition has over the last 20 minutes with apparent moderation and apparent concern put forward something which on the face of it appears to be a reasonable and moderate approach to a complex and delicate issue. In fact, I think Senator Chaney used the phrase 'delicate area' to describe the matter under discussion. Unfortunately, Senator Chaney's real intent and the real intent of the Opposition in bringing this matter forward as an urgency motion today is neither moderate nor sincere. In fact I think that what we have just heard is a rather deplorable exercise in hypocrisy. Let us look at the terms of the urgency motion before us today. We have been told that there is an urgent 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.

That urgency motion is phrased in a way which suggests to me that it was drawn up some time before the first application under the legislation was made because it certainly does not relate in any way to what has happened since the first application was made under the legislation. I remind you, Madam Acting Deputy President, and other honourable senators of what has happened. In fact, three applications under the Act have been processed by the Federal Government. None of them have been proceeded with. There are two other applications, one from Victoria and one from South Australia, currently being considered. In the case of the first application, the application to stop the Harding River Dam, as it happened by a matter of coincidence I was the Acting Minister who had to deal with the application on behalf of the Government.

I can assure honourable senators that there was no frenzy of angry phone calls between the Premier of Western Australia, Mr Burke, my Prime Minister (Mr Hawke) and me. Indeed, there were telephone conversations of course from the Premier of Western Australia and his deputy, Mr Bryce, who were concerned about the possible hazard to a major resources project in the Pilbara area. Of course, they were concerned. No one would expect them not to be concerned. Of course, they made their concerns known to us. Of course, we had conversations with them because in fact the Act requires the Minister to seek information from the State government in question-in this case Western Australia-and to seek assurances and an account of what steps that government has taken under its own legislation to deal with the sacred sites in question. Therefore, of course, there were telephone conversations and other communications. They were carried out in a most proper and decorous fashion. In fact, for what it is worth, I record here that the Premier of Western Australia, Mr Brian Burke, expressed to me his appreciation of the way in which the matter was handled between the two governments. As it turned out, of course, the matter was resolved in a way that was acceptable to the State Government and acceptable and proper as regards our Federal responsibilities. Of course, it was a way which caused disappointment to some Aboriginal groups-inevitable but inescapable disappointment given the nature of the application that was made. How this proper procedure can be described as bringing Federal and State governments into some sort of intolerable conflict is perfectly incomprehensible.


Senator Chaney —Do you understand the front page stories day after day and the impact they have?


Senator RYAN —If Senator Chaney likes to inform himself by the more melodramatic exercises in the daily Press rather than address himself to what really happens and what is on the record as having taken place between governments, that is his concern. Two other applications have not been proceeded with. They have both been from Queensland, one in respect of the Daintree River area and one in respect of Stradbroke Island. In neither case did the Minister find that those applications could be accepted. Has there been any complaint from the Queensland Government about the way in which those applications were dealt with by the Federal Government? There has been no complaint. Yet again there were proper applications under the Act, the matters were considered by the Minister and by the Government, and communications took place between the Queensland State Government and the Federal Government in a most proper and amicable fashion. The Queensland Government has expressed no criticism of those decisions.

So Senator Chaney, despite his moderate tone and demeanour during this debate, is actually trying to stir up trouble, perhaps trying to give the Queensland Government the message that the Opposition wants a bit of a fuss, that it wants acrimony between the two governments over this delicate issue. We do not want acrimony. We want co-operation. The legislation provides for co-operation and in the three cases in which applications have been dealt with there has been full and harmonious co-operation between the Federal Government and the two State governments involved, one of which, of course, is not a State government of our political complexion. So it is a spurious charge that Senator Chaney brings before us today, a disappointingly spurious charge, given his previously good record in regard to the matter of the rights of the Aboriginal people in this country.

Senator Chaney also expressed, with, I believe, a less than sincere motive, his concern that the existence of this legislation-


Senator Chaney —Madam Acting Deputy President, I take a point of order. That is a clear breach of the Standing Orders. I will not have my motive questioned in that way. It is disorderly. It should be withdrawn.


The ACTING DEPUTY PRESIDENT (Senator Coleman) —I was listening very carefully to what the Minister was saying-


Senator Chaney —I am sorry, Madam Acting Deputy President, but the Standing Orders specifically say that imputations of improper motives are disorderly.


The ACTING DEPUTY PRESIDENT —Under those circumstances, Senator Ryan, I ask you to withdraw that statement.


Senator RYAN —Madam Acting Deputy President, I comply with your request. I can understand Senator Chaney's super-sensitivity on this issue-


Senator Chaney —I want no words between me and the Minister. I want a simple withdrawal in accordance with the Standing Orders. I mean that, Madam Acting Deputy President.


The ACTING DEPUTY PRESIDENT —Senator Ryan, I ask you to make a simple withdrawal of the statement that you made and continue with the debate.


Senator RYAN —I comply with your request, Madam Acting Deputy President. Let us look at what Senator Chaney said. Senator Chaney said something to the effect that he was concerned or he believed that the existence of this legislation was causing public sympathy for the Aboriginal cause to decline. Let me comment on that. It seems to me, and I think to any fair observer of the public debate over this issue during the last 12 months, that if there has been a falling away of public sympathy for the Aboriginal cause-and if there has, that is something which we on our side of the chamber regret very much-it is not because we have enacted and proceeded to implement emergency legislation which could protect sacred sites under some circumstances from desecration. It is because of the vile, anti-Aboriginal campaigns being waged in this country and, in particular, being waged in Western Australia by Senator Chaney's political colleagues. I bring forward and I will shortly table a pamphlet officially published by the Liberal Party of Western Australia headed 'Land Rights: The Frightening Facts', which makes all kinds of melodramatic and exaggerated claims about what the implementation of land rights in Western Australia will mean to Western Australians. I table the pamphlet. So there has been a concerted campaign, an exaggerated and dishonest campaign, by the Liberal Party in Western Australia to stir up public concern on this issue and to undermine public support for the Aboriginal cause. If there has been a falling away of public sympathy for the Aboriginal cause, as Senator Chaney claims, then it is to his own Party colleagues that he needs to look for the reason, and not to our legislation.

Madam Acting Deputy President, Senator Chaney quoted a Press release from one of our political colleagues, Mr Mal Bryce. He quoted a statement which Mr Bryce made on 2 August, made in prospect of an application with regard to the Harding River Dam, I might say and not as a criticism of what actually ensued. Mr Bryce did make a statement in which he expressed concern that a major resources project might be jeopardised by the application of this Act, but he made that statement prior to the application being considered by our Government. Since that application was considered and since the matter was resolved to the satisfaction of the Western Australian Government, it is rather misleading to bring before the Senate a statement made by Mr Bryce long before matters were properly dealt with.

Senator Chaney also referred to the fact that there has been Aboriginal criticism of the legislation. Of course there has been Aboriginal criticism of the legislation. We understand that. Aboriginal disappointment has been expressed because the legislation was not able to do what three groups of Aboriginals wished it to do. We were not able to protect the sacred sites in the Harding River Dam area under the legislation, nor were we able to protect the areas under question in the Daintree River or Stradbroke Island areas. Naturally there is disappointment from those Aboriginals who had hoped, perhaps a little too optimistically, to achieve a result. They did not achieve that result, so they are disappointed and so there is criticism. But it is entirely wrong to infer from those criticisms that the Aboriginal communities themselves do not support Commonwealth legislation to protect sacred sites. Of course they support it. They just want it to be stronger and perhaps even more wide-reaching than it is. We do not believe that at this stage it would be proper to have the legislation more wide-reaching than it is, although, as Senator Chaney has acknowledged, the legislation has a two-year sunset clause and there is opportunity for review of its operation.

Let me remind honourable senators what the heritage legislation is there to do. It is not there to provide land rights by stealth, as some of Senator Chaney's political colleagues have claimed. It is not there to protect all sacred sites under all circumstances. It is there to give an emergency power to the Federal Minister based on proper constitutional authority to protect sacred sites against a sudden threat of desecration. The particular example used so often when we were debating this legislation and, indeed, the most appropriate example because it was indeed an example of why we needed Commonwealth emergency legislation was the example of Noonkanbah. It was said many times in the course of that debate and, indeed, many times by you, Madam Acting Deputy President, that there should not be and there would not be under this legislation another Noonkanbah.

It is not legislation which gives unfettered ministerial discretion. The Minister has an obligation to consult with the relevant State governments. He has an obligation to investigate to what extent the relevant State legislation is effective in protecting the sacred sites and to what extent the State governments have taken steps to protect the sacred sites. The Minister has to take other issues into account, as I had to take into account the importance of the Harding River Dam project for the people, black and white, of the Pilbara. Even when the Minister does make a declaration, that decision is not his alone to make on a permanent basis. That decision comes before both Houses of Parliament and can be disallowed by either House of Parliament if the Parliament is not in agreement with the decision that the Minister has taken. Of course, the application can be varied by the Minister or withdrawn if circumstances change or new information comes to light. So it is minimal emergency protective legislation. Perhaps because it is legislation of that character there has been some disappointment in some parts of the Aboriginal community in Australia. Nonetheless the legislation is none of the things that the Opposition has claimed it to be, it has caused none of the trouble that Senator Chaney today claimed it had caused. In my view it certainly has not contributed to any less of an understanding of or sympathy for the need to provide protection for Aboriginal sacred sites.

If the Opposition were prepared to be honest and objective about what has happened it would admit that all of the fears and anxieties it expressed during the second reading debate on the legislation, all of the predictions that it made about conflicts, problems and resources projects being destroyed by this legislation, have proven to be unfounded. As I have said, there have been three applications processed by the Federal Government. None of them has succeeded because none of them has met the particular terms of the legislation. There has been no interruption of any resources project or any other project. The very fact that inappropriate applications have not been successful ought to have caused any fears of a frivolous or vexatious use of the legislation to dissipate .

Of course it does not suit the Opposition to admit that it was wrong. It does not suit the Opposition to admit that the Federal Government has behaved responsibly, that it has carried out its responsibility to all of the interested parties in each case when an application has been processed. It does not suit the Opposition to admit that the relationship between the Federal Government and the State Government of Western Australia in the case of the first application, and the relationship between the Federal Government and the State Government in Queensland in the case of the next two applications, have been entirely harmonious. There has been no State government to Federal Government conflict. There has been no unexpected or immoderate criticism, generally speaking, by Aboriginal communities. There has been disappointment. We admit that and we understand it.

I suggest that the Opposition should get off this train. The Government will not repeal this legislation. We do not accept the criticisms, stated and implied , in today's urgency motion. We believe that we, as a Commonwealth, given our special constitutional responsibility for Aboriginal citizens of this country, do have a responsibility to have Commonwealth legislation which can fill the gaps in any existing State legislation and be a backstop for ineffective State legislation. We were right to legislate in the terms in which we did. That legislation, I remind the Senate, was the product of lengthy and thorough consultation between the Federal Government and State governments and between the Federal Government and Aboriginal communities. We will not accept these spurious and inaccurate criticisms of the legislation. The Canberra Times editorialist on 9 August wrote:

The Federal Government has made a difficult but correct decision in rejecting an appeal from the Western Australian Aboriginal Legal Service to declare as significant the sacred sites threatened by the State Government's Harding River Dam project in the Pilbara region.

The editorial went on to state:

There is little scope for the Act to reassess projects under way, but importantly the Federal Government must continue to give consideration to wider community issues, such as a water supply, that are important to the health and comfort of entire populations. While most Australians can sympathise with the strong spiritual attachment of Aborigines to specific areas, there must be times when other aspects have to be considered.

The Canberra Times editorial further stated:

. . . the Act remains a valuable piece of legislation to protect sacred sites under threat from potential development.

That is a conclusion that any fair-minded observer of the use of the Torres Strait Islander Heritage (Interim Protection) Act over the last few weeks must come to. It is there; it remains. I believe that in all probability it will be used to protect a sacred site, to stop damage to a sacred site. That is what it is there for. It has not achieved that particular objective yet but no doubt it will and when it does I believe the confidence of Aboriginal communities in the legislation will be greatly increased. On the other hand, if we take into account the misleading, trouble-making criticism of the legislation, both prior to its enactment and since, nothing has occurred since its enactment which in the slightest way gives any basis to the claims that Senator Chaney has made before us today.

It is of great concern to the Government and I believe to the people of Australia generally that the Opposition has chosen, both here in the Federal Parliament and in Western Australia, to use the issue of Aboriginal justice, including the issue of land rights, as a way in which it can stir up community discontent and get votes. I believe its strategy is not only immoral; it is wrong. The Opposition will not attract political support as a result of this mischievous behaviour. All of the evidence of which I am aware is to the effect that over the last 10 or 15 years the Australian community has become progressively more sympathetic to the Aboriginal cause. There are pockets of backlash here and there but overall I believe that the Australian community has a much better understanding now than it did, say, prior to the election of the Whitlam Government, of the nature of Aboriginal culture, of the nature of the relationship between Aboriginal people and their land and of the historic injustices that we must take some steps at least to try to remedy. For that reason the Aboriginal heritage legislation which we enacted so recently and which we will continue to keep in place is an important and historic piece of legislation. It will do good; it will not do evil. The only mischief that can come from its existence is the mischief which Senator Chaney is trying to cause today.