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Wednesday, 22 August 1984
Page: 151

Senator KILGARIFF(4.25) —I shall speak to the motion, which states:

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.

It has been said that it is only eight weeks since the passing of the heritage legislation. That legislation passed through the Parliament in considerable haste during the last hours of the autumn sitting, despite the Opposition's request that more time be given to enable some consultation with the governments of the States and the Northern Territory and-this is of considerable importance- consultation with the Aboriginal people. When I refer to the 'Aboriginal people' , I particularly mean the traditional people, the tribal people who still relate very much to their own culture, traditions and law.

The reason for bringing back this matter so soon for further debate-as a move to repeal legislation-is that the legislation has heightened the degree of fear, anxiety and confrontation. It has done nothing to bring about amicable agreement and understanding. Indeed, Federal intervention has brought about ill will and suspicion. The Opposition still believes that, to safeguard sacred sites properly, the process should be carried out at the grass roots level-in the State and Territory legislatures.

The Minister for Education and Youth Affairs, Senator Ryan, has once again in her address to the Senate talked about the consultation that took place prior to the introduction of the legislation. We have gone through all that discussion before, and I have repeated the strong statements of Mr Bob Little who is an Aboriginal alderman on the Alice Springs council. Mr Little represents many people, and has sent many telexes and made statements to the effect that the Aboriginal people did not understand the legislation at the time it was debated in the Senate. In fact, some Aboriginal people did not know that there was such a Bill, although some Aboriginal organisations did know of it. I suggest that those Aboriginal organisations may have been closer to the Minister for Aboriginal Affairs (Mr Holding) than others and that they may have been situated in towns.

As I said in the previous debate, it is strange to note that on other occasions when such matters came up the Aboriginal people spoke out very loudly in the community; yet on this occasion there was not one word from some of those organisations. I know that they had copies of the legislation, but the traditional people, who were very much affected by the legislation, knew nothing about it.

Today I again received comments from Bob Little about consultation. He says that he has received a hundred or more complaints from people in the western Macdonnell ranges. He feels that that number could be multiplied by 10 to allow for people in other areas. He says that the people are still dissatisfied; there has been no consultation with the traditional people. The Bill was not taken around and discussed with those people. He says that anyone can now approach the Minister for Aboriginal Affairs and declare a sacred site. If one looks carefully at the legislation, one finds that that is the case.

Mr Little continues to make the point that, according to Aboriginal custom, only traditional owners can talk about sacred sites and objects. That appears to be a situation that many people do not realise. I will not go over what I discussed in the second reading debate. I am talking about sacred sites and objects and, as I mentioned before, they are subject to forms of tribal retribution. Mr Little feels that the legislation was motivated by people wishing to retrieve the Strehlow collection and similar items; but that is another matter.

Because Senator Ryan has brought up the matter of consultation with the States, I must make my point again, and I shall do so as quickly as possible. On 29 May 1984, a telex was sent to the Minister for Aboriginal Affairs by the Chief Minister of the Northern Territory, Paul Everingham. That telex discussed the proposed national Aboriginal heritage legislation.

He said:

In your telex of 30 April you asked for my comments on the draft Bill which had been separately despatched to my Department on the same day. You sought my reaction by May 4.

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

who was made responsible for an inquiry-

also felt that the matter was best covered by Territory legislation.

And of course in the States by State legislation. To continue:

I agree that there is a need to empower either the sacred sites authority or the relevant Territory 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.

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.

Let us have no more of this talk of consultation. There was no consultation. The problem that the Opposition has with the legislation was clearly stated in the original debate by the Leader of the Opposition in the Senate, Senator Chaney, when he said:

The difficulty that the Opposition has with the legislation is that, like many Acts of Parliament, it could be used to do good, but, like many other Acts of Parliament, it could also be used for purposes which would not achieve good. It is the view of the Opposition that the legislation in this form at this time is not in the interests of the Aboriginal people of Australia, nor is it in the interests of the broader community.

Indeed, also of some considerable importance is Senator Chaney's further point. This is interesting. He said:

The Opposition would be most reluctant to rely upon the limitations which the Minister has laid down for himself in his second reading speech when in fact the Bill would permit him to go further than that speech indicates.

In effect, when one examines clauses 9 and 10 relating to the declaration of areas, one sees that the Minister has taken unto himself extremely wide powers which are obviously unacceptable to all those who find themselves interested in the realms of sacred sites, objects and so on, for in the brief few weeks the legislation has been in force, we have witnessed confrontation between the Federal Minister and State Governments, particularly Western Australia, Aboriginal organisations and the factions of his own Party. In a few brief moments I would like to go over some of the comments made in the media in the last eight weeks to indicate just how wide the feeling in this matter is. First of all, I will quote from a letter written by Clyde Holding, the Minister for Aboriginal Affairs, and published in a newspaper under the heading: 'Land rights explained'. In part, the Minister said:

In the Harding Dam case, there was no possibility that a declaration would be made without consultation with the State Government. In fact, the legislation requires it and I made my commitment quite clear during the debate in the Parliament.

He did that, but when it comes down to the nitty gritty it is quite easy to refute the assertion that there is a requirement for him to consult State governments.

Senator Coleman —It is in the Act, Senator. You have not even read it.

Senator KILGARIFF —The honourable senator should look at it herself. Perhaps she is like Mrs Child whose public comments on this matter were reported in the ' Comment' column of the Australian under the heading: 'The risk in making Minister Good Fellow's word law'. That article stated, in part:

Under this bill, the Minister for Aboriginal Affairs need not be limited to, but can receive an oral application on behalf of an Aborigine, and after receiving and considering a report from a person nominated by the minister concerning an area orally nominated by the applicant, can make a declaration concerning the area.

That is well and good. To continue:

Any person who contravenes a provision of a declaration which can prohibit anything the minister wishes to prohibit, is guilty of an offence punishable on conviction by a fine of $10,000 or five years' imprisonment . . .

That is a quite hefty penalty. The article goes on, referring to the Minister:

His word is law and he can vary or revoke a declaration at any time under Section 13 (6).

There is no part of the Australian land mass or waters which is exempt from his authority.

A minister vested with such discretionary powers, where the law is the minister 's discretion, will be subject to unprecedented pressures--

we have seen this--

from interest groups and he will be unable to plead lack of authority.

Perhaps we have seen that too. The columnist takes issue with what he calls ' Joan Child's essay', and continues:

She tells us:

The minister must consult the relevant State or territory minister. This provision is set out in section 13 (2) of the bill.

However, section 13 (4) states baldly in direct contradiction that ''any failure to comply with sub-section (2) does not invalidate the making of a declaration''.

Mrs Child tells us:

The minister must call for, and consider, the report of an independent person.

But the bill states in section 10 (1) c:

''Where the Minister has received a report from a person nominated by him. . .' '

She says:

''He (the minister) must also consult with his Cabinet colleagues before making any declaration.''

There is no such provision in the bill.

She tells us:

The legislation has been drafted in consultation with the Aborigines.

No such boast can be made of other non-Aboriginal Australian groups. . .

I think I have dealt with this situation of consultation, consultation that has not come about with State governments, with the Territory Government or with the Aboriginal people whom this legislation is all about. Let me continue with one or two quotations. In the Australian Financial Review of 10 May 1984 there was an article which stated, in part:

The substantial powers of interpretation placed in the hands of the Federal Minister for Aboriginal Affairs under the Government's Aboriginal Heritage legislation will open the way to intense lobbying over controversial heritage declarations.

In the Age of 17 August, under the heading 'Talks collapse so blacks will lobby Caucus on Holding', there appeared an article which stated, in part:

The NAC has stepped up its attack on Mr Holding's handling of the portfolio accusing him of ignoring the ALP platform on Aboriginal Affairs.

The NAC is angered also by the Government's hard-line interpretation of new legislation to protect Aboriginal sacred sites. The first three applications by Aboriginal groups have all been rejected.

We know all about that. We have been told many times this afternoon. In the Australian of 8 August, under the heading 'Prompt action is needed on land laws' , the editorial stated, in part:

Nonetheless, it is evident that the Commonwealth Government has been induced to act so decisively because of its fear that it could become involved in a dangerous dispute with the West Australian Labor Government. Despite assurances that the Acting Minister has exercised her own discretion, it seems highly unlikely that she has not been subject to the prompting of her Cabinet colleagues.

I could go on at length. If we want to get the viewpoint of the nation, of the media and of the people in the country, I suggest the Senate need only open its ears and heed the advice. We are saying that, for the benefit of the sacred sites, the legislation must be repealed. The onus, the responsibility, for such legislation is a State responsibility. I do not believe that a Federal Act, as if from a god living up in the clouds, can decree what the little people will or will not have to do. It is quite obvious that this legislation is controversial. It is quite obvious that it is causing considerable pains within the community. It is causing considerable pains among the Aboriginal people. I request the Government to review the matter.