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Thursday, 11 May 2006
Page: 39

Senator CARR (11:50 AM) —The Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] relates to heritage protection. It seeks to amend the existing act to provide greater certainty to international cultural loan arrangements by ensuring that declarations made under the act cannot act to prevent the return of objects imported temporarily to Australia with a certificate of exemption under the Protection of Movable Cultural Heritage Act 1986.

The second element goes to the issue of repeal of part IIA and other provisions in the act that apply only to places in Victoria to enable the Victorian government to administer Aboriginal heritage protection in Victoria directly through its own legislation. The third element brings the act into line with the Legislative Instruments Act 2003 by making amendments to clarify which class of instruments contained in the act are non-exempt legislative instruments for the purposes of the Legislative Instruments Act 2003.

Having said that, I think that this bill provides an opportunity to evaluate the government’s performance with regard to Indigenous heritage. I must say that Labor is extremely disappointed with this bill, not so much because of what it does but because of the failure of this government to respond to the opportunities that this legislation presents.

Labor supports moves to give greater certainty to international cultural loan arrangements and believes that the Victorian government should administer its own Aboriginal heritage protection regime. However, Labor is concerned that this bill reflects the broader problem of this government’s complacency on environmental and heritage protection issues: the Commonwealth government only takes an interest in matters where it sees there is political advantage to be gained. The development of the bill also reflects the government’s attitude to consultation with Indigenous Australians, which I think we can now say confidently has been neglected at every turn.

On 20 August 2003, former senator Robert Hill made a statement to the Senate which highlighted the government’s views on these questions. He said:

We gave undertakings a couple of days ago that the—

Aboriginal and Torres Strait Islander Heritage Protection Bill—

would be brought to the Senate as quickly as possible. The minister has since reaffirmed to me that negotiations and consultations are continuing to take place … We recognise the shortcomings in the existing system. Reform of that is long overdue … We are anxious to have a new and better piece of legislation put in place as quickly as possible.

Yet three years after that statement was made on a question of urgency, no ‘new and better piece of legislation’ has actually emerged. In fact, there is no evidence that there was any consultation taking place with Indigenous communities at the time Senator Hill made those statements, and we have seen no evidence that the government has consulted Indigenous communities on the broader program contained within this legislation.

Indeed, just over a year ago I was contacted by a constituent, a Yorta Yorta man, who had been very surprised to hear that Dr Sharman Stone MP, who is now of course Minister for Workforce Participation, indicated on ABC local radio that the government was planning to change this act once it had control of the Senate after 1 July last year. My constituent was surprised to hear this because, although he was a very active member of his community, especially with regard to heritage issues, he had not heard about the government’s proposed changes and his community had not been consulted. So in Victoria it is quite apparent that the community was not directly involved in the preparation of this legislation.

The point here is not what effect the bill will have. I have every faith that the Bracks Labor government will administer Indigenous heritage protection properly. I am, however, concerned that the Howard government appears to have developed this particular bill in secret, knowing full well that it will be able to use its Senate majority to pass this legislation, no matter how inadequate its proposals are. So, while we are not opposing this bill, I would like to indicate that I believe this bill to be grossly inadequate.

The minority report of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee inquiry stated that the bill continues to ignore many of the substantive recommendations of the 1996 Evatt inquiry into this act, such as: respecting customary restrictions of information, including gender-restricted information; protection from disclosure contrary to customary law restrictions, including guidelines on the kind of information courts can seek and exemptions from freedom of information laws; guaranteed access rights to sites of recognised significance for those recognised as being allowed to do so under customary law; minimum standards for state and territory cultural heritage laws, including automatic blanket protection for sites clearly falling within these standards; the establishment of an Aboriginal cultural heritage agency and of Indigenous cultural heritage bodies controlled by Aboriginal members representative of Aboriginal communities with responsibility for site evaluation and administration; and, finally, protection of all aspects of Indigenous heritage, including intellectual property. None of these issues have been dealt with by this legislation.

So Labor calls on the government to fulfil its previous commitment to consult with Aboriginal and Torres Strait Islander communities on the broad range of amendments to the act, including addressing the recommendations that were contained in the 1996 Evatt report. It is clear that the Commonwealth has responsibility for these issues, but the Howard government has made its attitude to Indigenous heritage protection abundantly clear. That is, the government is essentially indifferent—it could not care less. The legislation committee minority report on this bill found:

… the Howard Government has failed to meet its obligations to protect and conserve Indigenous heritage and has drastically reduced its engagement in Indigenous heritage issues.

It said that the government has been reluctant to actually use the Aboriginal and Torres Strait Islander Heritage Protection Act—under which only one declaration has been made since 1996—and has instead limited its involvement in Indigenous heritage issues to the administration of the heritage provisions in the Environment Protection and Biodiversity Conservation Act 1999. This is despite the fact that the Aboriginal and Torres Strait Islander Heritage Protection Act has a far greater capacity to protect Indigenous heritage than the EPBC Act.

Under the environment protection and biodiversity act places considered to be of national significance can be listed on the National Heritage List. However, the way the Howard government has administered these provisions means that a place of significance to a particular Indigenous community is not eligible to be listed unless it can be established that it is also a matter of significance to the broader Australian community. What that means is that there are many sites of extreme importance to Indigenous communities which are ineligible for listing on the National Heritage List. And, of course, we know that those sites that are eligible will be subject to the political whims of the minister and, as far as I can see—the overwhelming evidence suggests that this is the case—to the incompetent management of the National Heritage List.

Under this incompetent regime only one of Australia’s 16 magnificent World Heritage sites has actually made it onto the National Heritage List so far. The listing process, as I think was predicted by Labor, has become highly politicised. The minister, Senator Ian Campbell, has consistently been unwilling to list places that are politically contentious. This is a very, very important question when it comes to these matters of cultural heritage. If we are only going to list things that every single person agrees upon then very little will, in fact, be listed in this country. This was clearly demonstrated by the fiasco surrounding the use of Victoria’s Alpine National Park for cattle grazing.

Specifically in relation to Indigenous heritage sites, the sagas of Wave Hill and the Aboriginal tent embassy provide pertinent examples of the way in which the government has essentially neglected these questions and has made these issues subject to its own view of political advantage. In July 2004 Minister Campbell said that the Wave Hill walk-off site would be given priority consideration for listing on the National Heritage List. Since then the minister has not said another word about the listing of Wave Hill. This is despite the fact that we saw, I think it was just last year, the 30th anniversary of the famous hand-back of land to the Gurindji people by Gough Whitlam.

If you want a site of national significance in terms of land rights, surely Wave Hill would meet that criterion. In terms of political and cultural significance surely that site would meet all reasonable criteria. But what you have is a political decision made by the government to not act on this because it finds it to be symbolically embarrassing. It is a symbol it does not want to face up to because it goes to those fundamental questions about the rights of Indigenous people. There are some issues that this government wants to turn its back on. It does not want to address these matters because its version of the cultural wars is prosecuted to the exclusion of those who disagree with it, and this is one very good example.

Will the 40th anniversary of the actual walk-off itself, which is coming up on 22 August this year, come and go without any acknowledgment by the government? From what we have seen to date, I would have to suggest that that is exactly what will happen because there are some things in our history that this government does not want to engage with, does not want to talk about. Minister Campbell has recently refused to list the Aboriginal tent embassy on the Commonwealth Heritage List—which is designed to include places of cultural significance located on Commonwealth land—on the basis that the listing itself would be divisive. This decision was made despite the fact that the Australian Heritage Council has found that the embassy meets the listing criteria.

These are matters of national significance and the government ought to encourage public debate about what it is that we are doing as a country, what we have done and what we are as a people. Whatever you think of the tent embassy itself, there can be no doubt about its historical significance, not only in relation to Indigenous land rights but also to the development of Australian democracy and the capacity of Indigenous people to participate within the political culture. And, of course, the infamous case of the orange-bellied parrot debacle shows just how relaxed and comfortable the minister now is with making environmental and heritage protection decisions that are motivated by politics rather than based on any empirical evidence.

So what we have then is an issue in the context of the particular detail of the bill and those two recommendations of the legislation committee which just have not been covered. The first recommendation of the minority report was that enabling legislation to provide certainty for international loans for Indigenous Australian artefacts should be accompanied by a clear policy on the investigation and repatriation of objects of cultural significance that have been removed from Australia without the consent of their custodians.

This is an extremely important matter given our somewhat sorry history in regard to the expropriation of cultural artefacts by imperial policy and by a whole series of others that essentially stole the cultural artefacts of Indigenous people. I think it should be noted that Labor supports these moves to provide a greater lending certainty to overseas museums and collections which will enable artefacts to be brought to Australia for exhibition, and I do think there needs to be some security about these things given that these questions are so often controversial. However, we need to consider that the government should also take a stronger role in pursuing the return from overseas of artefacts of great cultural significance that were taken without consent. We are yet to see any clear policy from the government on those matters.

The second recommendation of the minority report relates to exempting heritage protection declarations from the 10-year sunset clause. I understand the Greens will be moving an amendment to give effect to this recommendation and Labor will be supporting that amendment.

In conclusion, Labor is extremely disappointed at the failure of this government to address these very important issues. It has missed yet again an opportunity, through this legislation, to face up to our national responsibilities on these questions. Some three years after the commitment made by Senator Hill that the government would bring forward a new and better piece of legislation, Indigenous Australians will be left waiting. They will be left waiting as a result of this government’s indifference to these matters. Three years after Senator Hill said that consultations were to take place, Indigenous communities, yet again, are still waiting.

Labor will support the bill, but it is grossly inadequate. We acknowledge—and this parliament ought to acknowledge—that the critical issues of Indigenous heritage have not been faced up to by this parliament under the control of this government. There needs to be some meaningful action to improve what is in international terms an appalling situation.