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Wednesday, 22 August 1984
Page: 146


Senator MACKLIN(3.47) — The matter of urgency moved by the Leader of the Opposition (Senator Chaney) is in the following terms:

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.

I assume that this motion was meant seriously and in that case I presume that what we are talking about is the operation of the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act since it was enacted by this Parliament. It is therefore pertinent, I think, to look at what has happened with respect to the Act to see whether it is the wrong or the right way to protect Aboriginal sacred sites. I must admit, I am rather confused by the stand of the Opposition. I am confused on the basis that I thought it would probably move an urgency motion congratulating the Government and suggesting that the Opposition had been wrong all along. If one reads the record of the debate that took place when this Act was passing through this place one could be forgiven for thinking that the following day the sun would not come up and indeed the end of the world was nigh. One member of the Opposition claimed that an extraordinary number of sacred site claims would be made in the first week after this legislation was passed. What have we had over the months that have passed? Three Aboriginal sites have been declared by the Government and two claims are still outstanding-one in Victoria and the other in Queensland.


Senator Ryan —South Australia.


Senator MACKLIN —I thought it was Wallaroo station, the gas pipeline in Queensland.


Senator Ryan —No.


Senator MACKLIN —The Hattan Lakes in Victoria--


Senator Ryan —And South Australia.


Senator MACKLIN —And South Australia. Of the three claims that have been moved through so far-the Harding River Dam in Western Australia, Stradbroke Island in Queensland and Daintree in north Queensland-the first came as an oral submission which was later changed to a written submission. Provision for that to be done was one of the points raised during the debate. Since that claim was dealt with in the way in which it was-allowing first an oral claim and translating it into a written claim-that procedure seems to have worked well. Indeed, the Opposition has not levelled any criticism at that aspect of the Act.

The second major criticism put forward by the Opposition was the enormous delays that would occur in relation to these claims. On the Harding River Dam claim there were 12 to 13 days between the date of the submission of the claim on 24 July and the date of decision on 6 August; on the Stradbroke Island claim there were 25 days, between 20 July and 15 August; and on the Daintree claim there were 12 days, between 3 August and 15 August. Again this is not what one would call an excessive claim. There was no statement from Senator Chaney, on behalf of the Opposition, that he thought that that part of the Act, which he roundly criticised during the debate, has not worked. The Opposition presumably does not see that as wrong.

Let us look at the results. The Harding River Dam, Stradbroke Island and Daintree claims were rejected. I would have thought that the Opposition would be very glad about those results. I would have thought that the Opposition was thinking that the Act was working perfectly well as none of the claims had been accepted. That is the position that the Opposition has been taking and took during the debate. It seems to be that the Opposition's urgency motion is not based on substantive operations of the Act since that time but is merely a reiteration of its previous opposition to that Act. That hardly seems to me to be a matter of urgency for this place. I do not mind if the Opposition continues its opposition to that Act but it can hardly be said to be a matter of urgency. I submit that it can become a matter of urgency only if we are dealing with the operation of that Act since it passed this place.

Let us look at the reasons given. We are talking about conflicts between Aboriginals and governments and State and Federal governments. I believe that there has been conflict. But one asks whether or not that conflict becomes a reason for a repeal of an Act. Surely there must be more substance to a claim about the nature of a conflict which arises and whether or not that conflict goes to the very heart of the Act itself. The conflict that has arisen between the Aboriginals and the Government is over the fact that the Government has not seen fit to acknowledge any of the claims made concerning sacred sites. One would imagine that such conflict would be inevitable. Indeed, the very nature of a claim that is made means that there will be disappointment either on behalf of the Aboriginal people or the people who are opposing a claim. A claim cannot be accepted or rejected without somebody losing. If anybody thinks that will not be the case I do not know what type of world he is living in.

We in Australia are 200 years down the track in relation to this matter. It will not be overturned in six months, two years or 10 years without a great deal of pain and sacrifice. We have to acknowledge that. Unfortunately we have to accept that. There will be difficulties in the operation of this Act. Conflicts will arise. All that we can urge, I would hope that all anyone in this place would urge, is that we seek to resolve those conflicts within the community in such a way as not to give support to the types of racist comments which are currently being made in the community on this issue and on the immigration issue . I go back to 1976 in this very place and refer to a motion which was passed unanimously in the following terms:

That the Senate accepts the fact that the indigenous people of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of this entire nation prior to the 1788 First Fleet landing at Botany Bay, urges the Australian Government to admit prior ownership by the said indigenous people and introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for dispossession of their land.

That motion was passed unanimously. On 7 December 1976 Senator Chaney said:

It would be my personal hope that we in the Government Parties would direct our attention in the future to further steps we might take to live up to Senator Bonner's resolution.

I emphasise that Senator Chaney said that the coalition might take further steps . He further said:

My personal view-I stress that it is a personal view-is that we ought to try to get Government assistance to Aborigines on to the basis that it is regarded as something received as compensation for the dispossession of the Aboriginal People.

Unfortunately that was said in 1976. Times have certainly changed. On 6 August, prior to the decision being made on the Harding River Dam-it was made late in the afternoon-I sent a telegram to the Acting Premier of Western Australia in the following terms:

Your reported comments today do a grave disservice to Aboriginal advancement in Australia. The Heritage Protection Act which you criticise allows any Aboriginal to lodge a claim.

You have been badly advised in attacking this Act on the basis of claims currently presented. The Act may only be tested when the claims have run the full gambut of tests provided for by the Federal Parliament. Until the Western Australian claim has been so processed any criticism, let alone that of a State Government, is premature.

Traditional owners may allow the dam to go ahead.

If not, your State legislation may suffice. If not, the report provided for under the Act may be against the claim. If not, the Federal Cabinet may decide not to act. If not, the Senate may disagree with the determination.

Please allow the Act to be tested in the interests of racial harmony and Aboriginal advancement in Australia in 1984.

It seems to me that we have the Opposition piggy-backing on what was a disgraceful exercise by the Australian Labor Party's Acting Premier of Western Australia at that time. He obviously had no idea of what was in the Act or he could not have made the types of claims that he made publicly.

I would be interested to have clarified some points that may be made in relation to the urgency motion, since the claim has been made that this is the wrong way to do it, on how to stop claims being made, even under the current State Acts that the Opposition has supported.

If the Opposition wished to review those Acts it would discover that Aboriginals can make those claims in an identical fashion to those provisions contained in the Federal legislation. There is no other way. We have to allow the process to get started. Somebody has to be allowed to make a claim. Surely the Opposition is not claiming that claims should not be allowed to be made on Aboriginal sacred sites. Aboriginals have to make the claim. Then we have to be able to test whether or not they are bona fide claims. But somehow or other we have to start the operation. That is all that had happened when the Acting Premier of Western Australia got into the act; that is all that had occurred to that point. A claim had been made. It seems to me that that is an extraordinary admission of ignorance on the part of somebody who ought to know how legislation operates. The Act has operated in the way which was predicted.


Senator Messner —The way you predicted.


Senator MACKLIN —The way I predicted, yes. It has operated in that fashion. The only thing I am concerned about is the rejection of those claims. I have not had a chance to read the detailed reasons for the rejection of those claims. I hope that those reasons will be provided to us in a short time. It seems to me that members of this Parliament are entitled to read the reasons for rejection so that they can understand how the Minister is administering this Act. I predicted that there would be very few claims. Indeed there have been very few. Not like the absurd propositions put forward by some members of the Opposition, there have been very few claims. If honourable senators knew the Aboriginal people and were to talk to them they would say: 'We just do not have the basis for this wholesale number of claims that people keep talking about'. The enormous time lags we projected did not occur. The enormous disruptions we have been talking about did not occur. The types of doomsday prophecies have not yet occurred. If one is saying that it has gone wrong, I think it is encumbent on the people who are saying that it has gone wrong to point where precisely it has gone wrong since the enactment of that Act.

Undoubtedly State governments are going to conflict with the Federal Government . I understand Senator Messner will be speaking in this debate. As a former Minister, if he did not have any conflicts with State governments I would be very pleased. I am sure that he was dealing in an area where he did not even talk to State governments which would be the only way that the Federal Government Minister could not have a dispute with State governments. It is the very nature of the federation that such disputes take place, but it is also the nature of the federation that these disputes are resolved in an amicable fashion . It is interesting that two of the claims occurred in my own State of Queensland and there was absolutely no noise. The disgraceful part of this whole exercise is that the only noise came from a misinformed and mischievous intervention on behalf of the Acting Premier of the Labor Government of Western Australia.