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Thursday, 7 May 1987
Page: 2451

Senator TATE (Special Minister of State)(10.07) —I move:

That the Bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-


This Bill, and the related Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill which I shall be introducing shortly, arises from the failure of the Victorian Parliament to pass legislation put before it by the State Government, and a subsequent request by the Victorian Government for Commonwealth assistance. I propose in this speech to describe both Bills and the reasons for our action in putting them before the Parliament. The Bills provide for the vesting of land, in the State of Victoria at Lake Condah and Framlingham Forest, in the relevant Aboriginal communities; and a revised regime for the protection of Aboriginal culture within that State. The introduction of the Bills into the Senate is the direct consequence of a request from the Victorian Government.

The general intentions contained in these two Bills have been the subject of negotiation between the Victorian Government and the Victorian Aboriginal community for some three years. After much discussion and consultation, three Bills were tabled in the Victorian Parliament during 1985 and 1986. They were the Aboriginal Land (Lake Condah) Bill, the Aboriginal Land (Framlingham Forest) Bill and the Aboriginal Culture Heritage Bill. The Victorian Aboriginal Land (Framlingham Forest) Bill intended to grant inalienable freehold title to an area of approximately 11 square kilometres of State Forest immediately adjacent to an area at Framlingham, which had previously been granted to the Kirrae-Whurrong people in 1970. The Victorian Aboriginal Land (Lake Condah) Bill intended to grant inalienable freehold title to an area of a square kilometre of land, on which the historic Lake Condah Mission Station is situated, to the Kerrup-Jmara people. This area is a site of considerable social, architectural and historic interest, particularly for the Kerrup-Jmara for whom the area was a permanent home. It was also a traditional meeting place and a hunting area before white settlement.

Both Bills also provided for the management of the land, including co-operation with local authorities for bush fire protection, for vermin and noxious plant control, for the protection of significant sites, for the control of mining or exploration activities and for the preservation of traditional law. The proposed Victorian Aboriginal Cultural Heritage Bill provided for the involvement of the local Aboriginal community in the protection of their cultural heritage-in particular the protection of sites of significance, the protection of objects of religious, cultural or historical significance and for the return of such objects to Aboriginal control.

The Victorian Opposition's reaction to these Bills was nothing short of extraordinary. The Opposition put forward Upper House amendments that intended to convert the title to the Framlingham and Condah land to alienable freehold and indicated its intention to remove basic provisions relating to mining which the Aboriginal community considered fundamental to its control of its traditional land. The Opposition wanted the Cultural Bill withdrawn in toto. The Opposition claimed it was not objecting to the grants of the Framlingham and Lake Condah areas to their traditional owners. It did not dispute that the Kirrae-Whurrong and Kerrup-Jmara people are the traditional owners of these areas. It did not dispute the size of the area being granted-11 square kilometres and 1/2 square kilometre-it simply demanded that the areas in question be held under freehold title which could be sold or mortgaged. That position would indicate a fundamental misunderstanding of the place of land in Aboriginal society.

The Opposition totally ignored the stand on Aboriginal land rights issues taken by the Bolte Government, which was not a Government generally considered to be socially progressive. However, the Bolte Government saw fit to grant what amounted to inalienable freehold to the Lake Tyers and Framlingham communities in 1970. At that time the Victorian Parliament enacted the Aboriginal Land Act which transferred title to the two Aboriginal communities at Framlingham and Lake Tyers. These communities were living on the remnants of the Aboriginal reserves declared in the nineteenth century but which had been gradually reduced by way of revocation to enable the land to be put to other uses. Yet the Victorian Opposition, 16 years later, now repudiates the actions of their Conservative predecessors and will not compromise on their stand against inalienable title, regardless of what the Aboriginal traditional owners or the broader community thinks.

Several prominent members of the Aboriginal communities in question have stressed the need for inalienable title to preserve the special relationship that Aboriginal people have with their land. The acceptance of this relationship is shared by Aboriginal communities throughout Australia and it is both recognised and supported by most State Governments, past Coalition Federal Governments and the current Hawke Government. The relevant Victorian Aboriginal communities never claimed this land, for the purpose of disposing of it. They do not accept that this generation of Aboriginal leaders have the right to dispose of the heritage of future generations. That is their view. That position is totally accepted by the Victorian Government and this Government. It is regrettable that the Aboriginal recipients' views were not seriously discussed or considered by the Victorian Opposition.

It might be noted that during the whistle stop tour of Western Victoria, the Leader of the Victorian Opposition, the Hon. Mr Kennett, failed to ask the people directly concerned what they wanted, but spent a lot of time saying what he thought would be best for them.

Surely it is ironic that there are prominent Liberal State Parliamentarians who voted for inalienable title for the land at Lake Tyers and Framlingham, yet cannot countenance it now. Is the Victorian Opposition saying what was right in 1970 is now wrong and if so why? The answer is, of course, that the Conservative forces in Australia today consistently oppose the granting of Aboriginal land rights, and they now seek to ensure the grant of a form of title that can and, no doubt they hope, will be removed from Aboriginal ownership by way of sale or through default.

In the case of the heritage legislation there was no possibility of compromise. The Opposition simply would not entertain the legislation. Given these circumstances, the Victorian Government, quite properly, sought Commonwealth assistance to enable these limited measures to become law. Before taking the matter to Cabinet, I publicly indicated that I wished to discuss the matter with the Leader of the Opposition. Mr Kennett paid me the courtesy of discussing the matter only after he had held a press conference to state the Opposition's refusal to compromise. Given this attitude on the part of the Victorian Opposition parties, there was nothing to be gained by the Cain Government taking the Bills back to the Victorian Parliament.

The Commonwealth right to legislate in the Aboriginal Affairs area is undisputed. The Commonwealth has a clear Constitutional power to legislate on behalf of Aboriginal Australians as conferred on it by the 1967 Referendum and the subsequent amendment of our Constitution. Moreover, the High Court has, in the Tasmanian Dam Case, confirmed beyond doubt the Commonwealth's authority to legislate in this area. The Commonwealth therefore proposes to legislate to give effect to the spirit of the Victorian Bills. These actions are consistent with the Hawke Government's stated policy of addressing the question of land rights and heritage protection on a State by State basis to ensure that the legitimate aspirations of the Aboriginal citizens of each State are fulfilled.

In proceeding with the request of the Victorian Government to enact this legislation, the Commonwealth Government is satisfied that the principles and policies agreed between the Victorian Government and the relevant Aboriginal Communities have been faithfully embodied in the Bills now before the Senate. It should be said, however, that the Commonwealth was not privy to the consultations which led to the agreements between the Aboriginal Communities and the Victorian Government. Therefore, this legislation should not be construed to imply that the Commonwealth necessarily endorses in every particular, the agreements arrived at and should not be regarded as a precedent for Commonwealth legislative action elsewhere in Australia. It is sufficient for the Commonwealth, having been satisfied that the principles endorsed by the Victorian Government and the Aboriginal Communities are embodied in the proposed legislation, and having regard to the political situation in the Victorian Parliament, to use the due process of the Commonwealth Parliament to give legislative effect to those agreements.

Obviously, certain provisions contained in the Victorian Bills and certain administrative processes proposed by them could not be enacted by any Commonwealth Parliament. For example, the Commonwealth would not seek to compel State Ministers or officials to carry out tasks, or to bind State review tribunals to review decisions. However, with the agreement of the Victorian Government, the administration of the legislation will, as far as is possible, be delegated to a Minister of the Victorian Government. Together with such obvious changes any other alterations have been agreed with the Victorian Government. The general provisions of the Bills now being considered by the Senate are discussed below.

The land Bill before the Senate provides for the acquisition of the land from the State of Victoria by its own force and the vesting of that land in the Kerrup-Jmara and Kirrae-Whurrong Communities. The acquisition will not include the minerals which will remain vested in the State of Victoria.

The vesting will provide for the extinguishment of easements and privileges including the closure of the roads identified on the plans scheduled to the Bill.

The Communities will be granted full power of management and control of the land subject to the laws of the Commonwealth and Victoria. The Minister will have to approve the giving of a lease or licence in excess of three years. The power of control and management will include the power to transfer land to another Aboriginal group within Victoria. The Kerrup-Jmara and Kirrae-Whurrong Communities will both be incorporated under the Aboriginal Councils and Associations Act 1976 and will provide for a Community Corporation and a Committee of Elders for each group. The Communities will have general local government type by-law making powers. Such by-laws will be gazetted and be subject to disallowance by the Commonwealth Parliament.

The Committee of Elders of the Communities will have specific powers relating to membership of the Community and a determinative function with respect to traditional matters within the Community. The Communities will be obliged to compile a register of sacred or significant sites on community land. The register would be kept so as to prevent disclosure of its contents without the permission of the Committee of Elders or for certain purposes under the Aboriginal and Torres Strait Islander Heritage Amendment Bill 1987. There will be provision for the register to be made available to the Minister when the Minister is considering making a declaration that a sacred or significant site has been appropriately protected in relation to the granting of permission for a mining operation.

Upon a winding up of either Community the land will be vested in the Commonwealth on behalf of the Aboriginal people of Victoria. The Minister would then have power to approve any transfer of that land to any other incorporated Aboriginal group whose members are the descendants of the respective clan or, in the case of the Kerrup-Jmara clan, failing the existence of such a group, to one other incorporated group within Victoria. The Community will have the power to transfer its interest in the land to another Aboriginal group within Victoria. That transfer would not be able to proceed if one or more of the Committee of Elders object. There would be no requirement for ministerial approval to such a transfer. Community land will be declared exempt from Victorian land tax.

The Bill provides that full care and control of flora and fauna by the Community will be subject to the endangered species provisions of the Wildlife Act of Victoria and the proclaimed plants provisions of the Wildflowers and Native Plants Protection Act of Victoria.

With regard to exploration and mining on the land concerned, a person may not carry out a mining operation without the permission of the Community, excepting those operations which are undertaken in compliance with pre-existing mining interests. Mining operations will be defined to cover operations for the recovery of all minerals, petroleum and stone as defined in the relevant Victorian Statutes.

Permission to carry out mining operations can be obtained only if a person has applied for a mining tenement in relation to community land. Any grant of a mining tenement by the Victorian Minister of Mines will be rendered of no effect until permission has been obtained from the Community to carry out the mining operation. The Community may give its permission subject to terms and conditions. If those conditions are agreed to by the applicant they may provide for a payment to the Community. If the Community refuses its permission, or gives permission with conditions that the applicant rejects, or does not provide a response within 120 days, the applicant may notify the Minister who will then call for a meeting of the parties to attempt conciliation.

If conciliation is unsuccessful, the applicant and the corporation may within 60 days appoint an arbitrator and, if unable to agree, may request that the Minister appoint an arbitrator. The arbitrator who would be required to review the decision of the Community both as to approval and as to terms and conditions for the giving of such approval. The arbitrator is required to consider a number of issues such as the effect of mining on the preservation and protection of the lifestyle, culture and traditions of the traditional owners of the land, before making a final determination. If compensation cannot be agreed, the arbitrator is required to make an appropriate determination.

The legislation provides that compensation payments are not to exceed those payable for disturbance under the Mines Act, Petroleum Act or Extractive Industries Act of Victoria at the exploration stage. However, they may exceed such payments at the mining stage. In the event that the arbitrator confirms a community decision not to approve a mining operation, any grant by the Victorian Minister for Mines of a mining tenement will be of no legal effect. Mining operations to be carried out in accordance with a renewal, extension, or variation of a pre-existing interest will require the permission of the community.

Where an application is made for a mining tenement on Community land and the Minister is satisfied that the application relates to an area which is, in whole or part, a sacred or significant site, and that site is recorded in the register the Community is required to keep of such sites, the Minister, if he is satisfied that it is appropriate, must provide for the protection and preservation of that site.

Such protection would be in the form of a declaration in accordance with the provisions of the Victorian Aboriginal and Cultural Heritage Bill as enacted by the Commonwealth as an amendment to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The legislation will make it an offence to offer a gift or consideration so as to obtain Community permission to carry out mining operations. If permission is granted by the Community to a person to carry out mining operations, that permission will include permission to enter and be on Community land for the purposes of the mining operation.

Importantly, the Bill provides for an allocation from the Commonwealth Consolidated Revenue Fund of an amount, determined by regulation, for the purposes of payment of a mining royalty equivalent. Such amounts will be paid into a Trust fund. One half of that amount will go to the relevant Community and the other to a separate fund for the advancement of the Aboriginal people of Victoria. The trusts will be administered by the State of Victoria under delegation from the Minister. The Senate should note that the Commonwealth Minister responsible for this Act will be empowered to delegate his authority to appropriate Ministers of the Victorian Government. These delegated powers will in themselves be capable of further delegation by those Ministers.

I commend the Bill to honourable senators and present the explanatory memorandum.


It is proposed to amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to create a new part to provide for the provisions which were contained in the Aboriginal Cultural Heritage Bill of Victoria. The amendment Bill will provide that any person may apply for an emergency declaration which may be granted by the Minister, an inspector or a magistrate, providing that an Aboriginal place or object is under threat of injury or interference. The emergency declaration is designed to cover the situation where, for example, the bulldozer is coming down the road or the significant object is advertised for auction. Such declarations would remain in force for 30 days. There is a power given to the person making the declaration to vary or revoke it. There will be a duty to notify any local Aboriginal community concerned and any such persons who are likely to be affected by such a declaration.

A local Aboriginal community may decide that an Aboriginal place or object in its Community is under threat of injury or interference. Provision will be made for such a community to apply to the Minister for a temporary declaration. The Minister will be required to give notice of such application to those likely to be affected and give such persons an opportunity to be heard. If after consulting with appropriate State Ministers the Minister is satisfied in all the circumstances that a declaration ought to be made, he would make that declaration setting out the terms of the declaration and the manner of preservation of the Aboriginal place or object. The Minister will have power to vary or revoke such a declaration.

There will be provision for a person affected by a temporary declaration to apply to the Minister for the Minister to appoint an arbitrator to review the Minister's decision. Similarly, if the Minister refuses to make such declaration or varies that declaration the local Aboriginal community may apply to the arbitrator for review. Temporary declarations remain in force for 60 days or such longer period not exceeding 120 days as the Minister, on the advice of the local Aboriginal Community, determines. If a local Aboriginal Community decides that an Aboriginal place or object is of such significance the community may request the Minister to make a declaration of preservation. The Minister must give notice of such an application and give any person who might be affected the opportunity to be heard. If the Minister, after hearing all objections and consulting with appropriate State Ministers, is satisfied that in all the circumstances it is appropriate the Minister must make the declaration. The Minister may vary or revoke such declarations. He must also give notice of any making, variation or revocation of a declaration and there are similar rights to apply to the Minister for the appointment of an arbitrator to review the decision.

A local Aboriginal community may cause notices to be placed on or near Aboriginal places or objects that are the subject of a declaration. Damaging or removing such a sign would be an offence. The legislation will make it an offence to contravene the terms of a declaration. Separate penalties will be provided for individuals and corporations. A defence is provided for a person who did not know or could not reasonably have known of a declaration of the place or object. Provision will be made to enable a local Aboriginal community to enter into an Aboriginal Cultural Heritage Agreement with a person who owns or possesses any Aboriginal cultural property. Such agreements would provide for preservation, maintenance, sale, etc., in accordance with the needs and wishes of the Aboriginal and general communities. The local Aboriginal community may lodge such an agreement with the Victorian Registrar of Titles.

The Bill will empower the Minister to acquire compulsorily, any Aboriginal cultural property if he is satisfied that it is of such significance that it is irreplaceable and no other arrangements can be made for its preservation. Such acquisition would carry with it a right to compensation from the Commonwealth. Persons whose property is effectively acquired when a declaration of preservation ends their rights to deal with it as owner, are also entitled to compensation. The Minister also has a discretion to compensate any person affected by, or likely to be affected by, a long term declaration of preservation. After consultation with the local Aboriginal community, the Minister may appoint as inspectors persons with knowledge and expertise in the identification and preservation of Aboriginal cultural property.

If a Magistrate is satisfied by evidence given on oath or affirmation, that Magistrate may issue a warrant authorising any member of the police force and an inspector, to enter premises, to search those premises, and to take possession of any Aboriginal objects under threat. Any object seized must be returned to the owner within 60 days unless compulsorily acquired, or otherwise becomes the property of the local Aboriginal community. A local Aboriginal community may, in writing, appoint honorary keepers or wardens whose functions will be to keep or record and maintain Aboriginal cultural property of that community.

It will be an offence to wilfully deface, damage, or otherwise interfere with Aboriginal objects or places. It will be a defence to such a charge that the local Aboriginal community consented in writing to the act done by the person. The Minister will cause to be kept a register of all declarations of preservation. The information upon that register would be protected from access except as prescribed.

The Minister responsible for this Act will be empowered to delegate his authority, including delegation to appropriate Ministers of the Victorian Government. These delegated powers will in themselves be capable of further delegation by those Ministers. The Governor-General would have appropriate regulation making powers.

Commonwealth legislation cannot directly amend the Archeological and Aboriginal Relics Preservation Act 1972 of Victoria as the Victorian Government had proposed. The existing Victorian statute will continue to apply to Aboriginal relics except to the extent that it is inconsistent with overriding Commonwealth legislation. Declarations for protection under the State statute which were made prior to the commencement of this Bill will continue to apply.

These Bills represent a unique and important step on the part of this Parliament to recognise the legitimate and traditional interests of the Aboriginal people of Victoria. It is an opportunity for this Parliament to exercise its Constitutional power to enact legislation for the benefit of the Aboriginal people in Victoria. Those powers are being exercised at the specific request of the elected Government of the State of Victoria. Such a request, in the face of an intransigent, irrational and unjustifiable stand taken by the Opposition parties in the Victorian Parliament necessitates the Commonwealth Parliament taking a stand in support of the Aboriginal people who are the subject of these Bills. There is no question that the Hawke Labor Government is prepared to take that stand.

I commend the Bill to honourable senators.

Debate (on motion by Senator Kilgariff) adjourned.