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Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

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1998-99

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

Aboriginal and Torres Strait Island Heritage Protection Bill 1998

 

 

Schedule of Amendments made by the Senate to which the House of Representatives has disagreed

 

 

 

(1)     Clause 4, page 2 (lines 17 to 20), omit “certain” (wherever occurring).

(2)     Clause 4, page 2 (after line 20), after paragraph (a), insert:

                    (aa)  the regulation of the purchase, sale and exhibition of significant indigenous objects; and

                   (ab)  the promotion of the development of indigenous culture and heritage; and

(3)     Clause 5, page 2 (line 24) to page 6 (line 19), insert:

Agency means the Indigenous Heritage Protection Agency.

ATSIC means the Aboriginal and Torres Strait Islander Commission established by the Aboriginal and Torres Strait Islander Commission Act 1989 .

Council means the Indigenous Cultural Heritage Advisory Council.

Heritage Registrar means the Heritage Registrar appointed under section 20.

Indigenous Cultural Heritage Advisory Council means the Indigenous Cultural Heritage Advisory Council established under section 83 of this Act.

Indigenous Heritage Protection Agency means the Indigenous Heritage Protection Agency established under Division 1 of Part 2.

national interest includes but is not limited to Australia’s compliance with its obligations to protect indigenous heritage as a signatory to international agreements, conventions and covenants.

native title representative body means a representative Aboriginal/Torres Strait Islander body that is the subject of a determination under subsection 202(1) or that is recognised under section 203AD of the Native Title Act 1993 .

Registrar means the Heritage Registrar.

(7)     Clause 5, page 5 (lines 19 and 20), omit the definition of Register , substitute:

Register means the Register of Claims for Protection or the Register of Agreements established under Part 2A.

(8)     Clause 5, page 6 (lines 4 to 10), omit the definition of significant indigenous area , substitute:

significant indigenous area means:

                     (a)  an area of land situated in Australia or situated in or beneath water in Australia or Australian waters; or

                     (b)  an area of water in Australia; or

                     (c)  an area of Australian waters;

being an area:

                     (d)  of particular significance to indigenous persons in accordance with indigenous tradition; or

                     (e)  that is of particular significance to indigenous archaeology, anthropology or history.

(9)     Clause 5, page 6 (lines 11 to 14), omit the definition of significant indigenous object , substitute:

significant indigenous object means an object (including indigenous human remains), situated in Australia or in Australian waters, that is:

                     (a)  of particular significance to indigenous persons in accordance with indigenous tradition; or

                     (b)  that is of particular significance to indigenous archaeology, anthropology or history.

(10)   Clause 5, page 6 (line 23), omit “or”.

(11)   Clause 5, page 6 (line 24), after “waters”, insert “or an area of water beneath land in Australia”.

(12)   Heading to Part 2, page 9 (lines 2 and 3), omit the heading, substitute:

Part 2—Indigenous Heritage Protection Agency

(13)   Heading to Division 1, page 9 (lines 4 and 5), omit the heading, substitute:

Division 1—Establishment, purpose and way of operating

(14)   Clause 9, page 9 (lines 6 to 8), omit the clause, substitute:

9  Indigenous Heritage Protection Agency

                   There is established by this Act an Indigenous Heritage Protection Agency.

(15)   Clause 10, page 9 (line 9) to page 10 (line 5), omit “Director” (wherever occurring), substitute “Agency”.

(16)   Clause 10, page 9 (line 11), omit “advise”, substitute “make submissions to”.

(17)   Clause 10, page 9 (line 26), omit “or”, substitute “and”.

(18)   Clause 10, page 10 (after line 3), after paragraph (g), insert:

                    (ga)  to initiate prosecutions for offences arising under this Act;

                   (gb)  to seek injunctive relief under this Act;

                    (gc)  to carry out research for the purpose of performing its functions;

                   (gd)  to act in the interests of indigenous people in recovering and repatriating significant indigenous objects (including indigenous human remains) to the appropriate indigenous persons;

(19)   Page 10 (after line 5), after clause 10, insert:

10A  Agency’s way of operating

Objectives

             (1)  The Agency must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

Concerns of indigenous people

             (2)  The Agency, in carrying out its functions, must take account of the cultural and customary concerns of indigenous people.

Agency not bound by technicalities etc.

             (3)  The Agency, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.

(20)   Clause 11, page 10 (lines 6 to 17), omit the clause, substitute:

Division 1A—Membership of the Agency

11  Membership of the Agency

                   The membership of the Agency is as set out in the following table:

 

Membership of the Heritage Protection Agency

Member

Number to be appointed

Class of member

Persons who may be appointed

Principal member

One

Principal

A person who satisfies subsection 11A(2) and who is: A person who has been for at least 5 years enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory

Deputy Principal member

Any number or none

Principal

Other member

Any number

Non-principal

A person who satisfies subsection 11A(2) and has, in the opinion of the Governor-General, special knowledge in relation to:

(a) the archaeological or anthropological significance of areas or objects; or

(b) dispute resolution; or

(c)  any other class of matters considered by the Governor-General to have substantial relevance to the duties of such a member.

11A Appointment of members of Agency

             (1)  The members are to be appointed by the Governor-General on such terms and conditions, subject to this Act, as are specified in the instrument of appointment. The Principal member must be appointed on a full-time basis and the members may be appointed on a full-time basis or a part-time basis.

             (2)  A person is not qualified to be appointed unless the Governor-General is satisfied that the person has an understanding of indigenous culture and heritage and an ability to deal with indigenous persons in a culturally sensitive manner.

             (3)  If a member is appointed on a part-time basis, he or she may not engage in any paid employment that, in the opinion of the Governor-General, conflicts with the proper performance of the member’s functions.

(21)   Clause 12, page 10 (lines 18 to 21), omit the clause, substitute:

12  Terms of appointment

Period for which office held

             (1)  A member is appointed for the period (not longer than 5 years) specified in the instrument of appointment, but is eligible for reappointment.

Terms and conditions

             (2)  A member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are prescribed.

(22)   Clause 13, page 10 (line 22) to page 11 (line 5), omit the clause, substitute:

13  Remuneration and allowances

             (1)  A member is to be paid such remuneration as is determined by the Remuneration Tribunal.

             (2)  If no determination of that remuneration by the Remuneration Tribunal is in operation, a member is to be paid such remuneration as is prescribed.

             (3)  A member is to be paid such allowances as are prescribed.

             (4)  This section has effect subject to the Remuneration Tribunal Act 1973 .

(23)   Clause 14, page 11 (line 7), omit “the Director”, substitute “a full-time member”.

(24)   Clause 14, page 11 (line 10), omit “the Director”, substitute “a full-time member”.

(25)   Clause 15, page 11 (lines 13 to 27), omit “Director” (wherever occurring), substitute “Principal member”.

(26)   Clause 15, page 11 (line 14), omit “Minister”, substitute “Governor-General”.

(27)   Clause 16, page 11 (line 28) to page 12 (line 11), omit “The Director” (wherever occurring), substitute “A member”.

(28)   Clause 16, page 11 (line 28) to page 12 (line 11), omit “Minister” (wherever occurring), substitute “Governor-General”.

(29)   Clause 16, page 11 (line 28) to page 12 (line 11), omit “Director’s” (wherever occurring), substitute “member’s”.

(30)   Clause 16, page 12 (line 7), omit “Director”, substitute “a member”.

(31)   Clause 16, page 12 (line 10), omit “Director”, substitute “member”.

(32)   Page 12 (after line 11), after clause 16, insert:

16A  Conflict of interest

Member to disclose conflict of interest

             (1)  A member who has a conflict of interest in relation to an application under Part 4 must disclose the matters giving rise to that conflict:

                     (a)  if the member is the Principal member—to the Commonwealth Minister and the parties; or

                     (b)  in any other case—to the Principal member and the parties.

Requirement for consent

             (2)  The member must not take part in the inquiry or exercise any powers in relation to the application or the inquiry unless:

                     (a)  if the member is the Principal member—the Commonwealth Minister and the parties consent; or

                     (b)  in any other case—the Principal member and the parties consent.

Meaning of conflict of interest

             (3)  For the purposes of this section, a member has a conflict of interest in relation to an application under Part 4 if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that application or inquiry.

             (4)  Without limiting subsection (3), a person has a conflict of interest at a particular time in relation to an application under Part 4 if:

                     (a)  at that time, the person is employed by, or engaged as a consultant or a lawyer to, an organisation or a person that has an interest in the subject matter of the application; or

                     (b)  at any time in the 12 months immediately before that time, the person was so employed or engaged.

(33)   Clause 17, page 12 (lines 12 to 14), omit the clause, substitute:

17  Resignation

                   A member may resign by writing signed by him or her and sent to the Governor-General.

(34)   Clause 18, page 12 (lines 15 to 31), omit the clause, substitute:

18   Termination of appointment

Misbehaviour or incapacity

             (1)  The Governor-General may terminate the appointment of a member if an address praying for the termination of the member’s appointment on the ground of proved misbehaviour or of physical or mental incapacity is presented to the Governor-General by each House of the Parliament in the same session of the Parliament.

Termination for other reasons

             (2)  The Governor-General must terminate the appointment of a member, if the member:

                     (a)  becomes bankrupt; or

                     (b)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (c)  compounds with his or her creditors; or

                     (d)  makes an assignment of his or her remuneration for the benefit of his or her creditors.

Retirement—incapacity

             (3)  The Governor-General may, with the consent of a member who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976 ; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990 ;

retire the member from office on the ground of incapacity.

Retirement—invalidity—Superannuation Act 1976

             (4)  In spite of anything contained in this Act, a member who:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976 ; and

                     (b)  has not reached his or her retiring age within the meaning of that Act;

is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

Retirement—invalidity—Superannuation Act 1990

             (5)  In spite of anything contained in this Act, a member who:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

18A   Suspension of members—misbehaviour or incapacity

Misbehaviour or incapacity

             (1)  The Governor-General may suspend a member from office on the ground of misbehaviour or of physical or mental incapacity.

Statement of grounds

             (2)  If the Governor-General suspends a member from office, the Commonwealth Minister must cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

Resolution by a House of Parliament

             (3)  If such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member’s appointment should be terminated.

Member’s appointment to be terminated

             (4)  If each House of the Parliament passes the resolution, the Governor-General must terminate the member’s appointment.

Termination of suspension

             (5)  If, at the end of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed the resolution, the suspension terminates.

Suspension not to affect entitlements

             (6)  The suspension of a member from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.

18B   Outside employment

Consent of Commonwealth Minister required

             (1)  Except with the consent of the Commonwealth Minister, a full-time member must not engage in paid employment outside the duties of his or her office.

Service in Defence Force

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

18C  Member not personally liable

                   A member is not personally liable in an action or other proceeding for damages in relation to anything done or omitted to be done in good faith by the member in the capacity of member.

(35)   Page 12 (after line 31), after clause 18, insert:

Division 1B—Organisation of Agency

(36)   Clause 19, page 13 (lines 1 to 4), omit the clause, substitute:

19   Arrangement of business

Principal member may give directions

             (1)  The Agency must be constituted by a member for the purposes of the conduct of a particular inquiry, the conduct of mediation in a particular proceeding, or to provide assistance in making or negotiating agreements under this Act.

             (2)  Where the Agency has been constituted by a particular member for the conduct of mediation in a particular proceeding, or to provide assistance in making or negotiating agreements under this Act, the Agency must be constituted by a different member for the conduct of an inquiry for the purposes of making findings and preparing a report under this Act.

             (3)  Subject to subsections (1) and (2), the Principal member may give directions as to any of the following:

                     (a)  the arrangement of the business of the Agency;

                     (b)  the member who is to conduct mediation in a particular proceeding or to provide assistance in making or negotiating agreements under this Act;

                     (c)  the member who is to prepare a report for the Minister, to conduct mediation in a particular proceeding or to provide assistance in making or negotiating agreements under this Act;

                     (d)  the places at which the Agency is to conduct a particular inquiry;

                     (e)  the procedure of the Agency generally;

                      (f)  the procedure of the Agency at a particular place;

                     (g)  the procedure of the Agency in the receiving and considering of representations by a member in preparing a report for the Minister;

                     (h)  procedures relating to the protection from disclosure of culturally sensitive information.

Factors to be considered

             (4)  In giving a direction as to the member who is to conduct a particular inquiry, the Principal member must have regard to the degree of public importance or complexity of the matters to which that inquiry relates.

19A   Replacement of a member

When section applies

             (1)  This section applies if a member (the unavailable member ) who has responsibility to conduct a particular inquiry, to conduct mediation in a particular proceeding or to provide assistance in making or negotiating agreements under this Act:

                     (a)  stops being a member; or

                     (b)  for any reason is not available for the purpose of the inquiry, mediation or negotiation.

Where unavailable member constituted Agency

             (2)  In the event there is an unavailable member, the Principal member must direct another member to conduct a particular inquiry, to conduct mediation in a particular proceeding or to provide assistance in making or negotiating agreements under this Act.

Member who is reappointed

             (3)  For the purposes of subsection (2), a member who stops being a member and at a later time becomes a member again is taken, from that later time, to be another member.

Agency may have regard to previous proceedings

             (4)  The Agency, as constituted in accordance with a direction under subsection (2), must continue and finish a particular reporting process or mediation in a particular proceeding or continue to provide assistance in making or negotiating agreements under this Act and may, for that purpose, have regard to any record of the proceedings of the reporting process, mediation or negotiation made by the Agency as previously constituted.

19B   Places of sitting

                   Sittings of the Agency are to be held from time to time as required at the places at which the registries of the Agency are established, but the Agency may sit at any place in Australia or to which this Act extends.

(37)   Clause 20, page 13 (lines 5 to 8), omit the clause, substitute:

Division 1C —Heritage Registrar

20  Appointment of Registrar

Registrar

             (1)  There is to be a Heritage Registrar.

Appointment by Governor-General

             (2)  The Heritage Registrar is to be appointed by the Governor-General.

Qualifications

             (3)  A person is not to be appointed as Heritage Registrar unless:

                     (a)  the person is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; and

                     (b)  the Governor-General is satisfied that the person has an understanding of indigenous culture and heritage and an ability to deal with indigenous persons in a culturally sensitive manner.

20A   Powers of Registrar—assisting the Pr incipal member

Powers, when assisting Principal member

             (1)  The Registrar may do all things necessary or convenient to be done for the purpose of assisting the Principal member under section 21A.

Acting for Principal member—administrative affairs

             (2)  In particular, the Registrar may act for the Principal member in relation to the administrative affairs of the Agency.

Principal member may give directions

             (3)  The Principal member may give the Registrar directions regarding the exercise of the Registrar’s powers under this Part.

20B   Powers of Registrar—applications

                   The Registrar has the powers set out in Part 4 in relation to applications.

20C   Powers of Registrar—registers

                   The Registrar has the powers set out in Part 2A.

20D  Delegation by Registrar

                   The Registrar may by signed instrument delegate to one or more of the Deputy Registrars or of the members of the staff of the Agency all or any of the Registrar’s powers under this Act.

20E   Remuneration and allowances

Determination by Remuneration Tribunal

             (1)  The Registrar is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the Registrar is to be paid such remuneration as is prescribed.

Prescribed allowances

             (2)  The Registrar is to be paid such other allowances as are prescribed.

Appropriation

             (3)  Remuneration and allowances payable to the Registrar under this section are to be paid out of money appropriated by the Parliament for the purposes of the Agency.

Subject to Remuneration Tribunal Act 1973

             (4)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973 .

20F   Terms and conditions of appointment

Period for which office held

             (1)  The Registrar holds office for the period (not longer than 5 years) specified in the instrument of appointment, but is eligible for reappointment.

Terms and conditions

             (2)  The Registrar holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Principal member.

20G   Leave of absence

Recreation leave

             (1)  The Registrar has the recreation leave entitlements determined by the Remuneration Tribunal.

Other leave

             (2)  The Principal member may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as are determined by the Principal member with the approval of the Commonwealth Minister.

             (3)  For the purposes of subsection (2), the Principal member may make written determinations granting leave of absence, other than recreation leave, to the Registrar on such terms and conditions as the Principal member, with the approval of the Commonwealth Minister, considers appropriate.

20H   Resignation

                   The Registrar may resign by giving a signed notice of resignation to the Governor-General.

20J   Termination of appointment

Misbehaviour or incapacity

             (1)  The Governor-General may terminate the appointment of the Registrar for misbehaviour or physical or mental incapacity.

Termination for other reasons

             (2)  The Governor-General must terminate the appointment of the Registrar if:

                     (a)  the Registrar:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Registrar is absent from duty, except on leave of absence granted by the Principal member, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Registrar engages in paid employment contrary to section 20K; or

                     (d)  the Registrar fails, without reasonable excuse, to comply with section 20L.

Retirement—incapacity

             (3)  If the Registrar is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976 ; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990 ;

the Governor-General may, with the Registrar’s consent, retire the Registrar from office on the ground of incapacity.

Retirement—invalidity—Superannuation Act 1976

             (4)  In spite of anything contained in this Act, a Registrar who:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976 ; and

                     (b)  has not reached his or her retiring age within the meaning of that Act;

is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

Retirement—invalidity—Superannuation Act 1990

             (5)  In spite of anything contained in this Act, a Registrar who:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

20K   Outside employment

Consent of Principal member required

             (1)  Except with the consent of the Principal member, the Registrar must not engage in paid employment outside the duties of his or her office.

Service in Defence Force

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

20L   Disclosure of interests by Registrar

                   The Registrar must give written notice to the Principal member of all direct or indirect pecuniary interests that the Registrar has or acquires in any business or in any body corporate carrying on a business.

20M   Appointment of acting Registrar

Principal member may appoint acting Registrar

             (1)  The Principal member may appoint a person to act as the Registrar:

                     (a)  if there is a vacancy in the office of Registrar; or

                     (b)  during any period, or during all periods, when the Registrar is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.

A person appointed to act during a vacancy is not to continue so to act for more than 12 months.

Qualifications

             (2)  A person is not to be appointed to act as Registrar unless:

                     (a)  the person is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory; and

(b)   the Principal member is satisfied that the person has an understanding of indigenous culture and heritage and an ability to deal with indigenous persons in a culturally sensitive manner.

Validation

             (3)  Anything done by a person purporting to act under an appointment under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in, or in connection with, the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          Section 33A of the Acts Interpretation Act 1901 has additional rules that apply to acting appointments.

(38)   Clause 21, page 13 (lines 9 to 21), omit the clause, substitute:

Division 1D Management of the Agency

Subdivision A—Management responsibilities of Principal Member and Registrar

21   Management of administrative affairs of Agency

Principal member responsible for administrative affairs

             (1)  The Principal member is responsible for managing the administrative affairs of the Agency.

Powers of Principal member

             (2)  For that purpose, the Principal member may do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

                     (a)  entering into contracts; and

                     (b)  acquiring or disposing of personal property.

Powers are additional to other powers

             (3)  The powers given to the Principal member by subsection (2) are in addition to any powers given to the Principal member by any other provision of this Act or by any other Act.

Limits on powers

             (4)  Subsection (2) does not authorise the Principal member to:

                     (a)  acquire any interest or right that would constitute an interest in land for the purposes of the Lands Acquisition Act 1989 ; or

                     (b)  except with the approval of the Commonwealth Minister—enter into a contract under which the Commonwealth is to pay or receive an amount over $250,000 or, if a higher amount is prescribed, that higher amount.

21A   Heritage Registrar

                   In the management of the administrative affairs of the Agency, the Principal member is to be assisted by the Heritage Registrar.

Subdivision B Other officers, Agency staff and consultants

21B   Deputy Registrars and staff of the Agency

Deputy Registrars and staff

             (1)  In addition to the Registrar, there are to be such Deputy Registrars and staff of the Agency as are necessary.

Appointment of Deputy Registrars and staff

             (2)  The Deputy Registrars are to be appointed by the Principal member and the staff are to be appointed by the Registrar.

Employment etc. under Public Service Act 1999

             (3)  The Deputy Registrars and the staff of the Agency are to be persons appointed or employed under the Public Service Act 1999 .

Secondment

             (4)  The Registrar may, on behalf of the Principal member, arrange with the Secretary of a Department of the Australian Public Service, or with an authority of the Commonwealth, for the services of officers or employees of the Department or of the authority to be made available for the purposes of the Agency.

Understanding of indigenous culture

             (5)  The Registrar must not appoint a member of staff unless he or she is satisfied that the person has an understanding of indigenous culture and heritage and an ability to deal with indigenous persons in a culturally sensitive manner.

Powers etc.

             (6)  The Deputy Registrars and the staff of the Agency have such duties, powers and functions as are given by this Act or by the Principal member.

21C   Powers of Registrar regarding Deputy Registrars and Agency staff

                   In relation to the branch of the Australian Public Service consisting of the Deputy Registrars and the staff of the Agency, the Registrar has the same powers as if that branch were a Department of the Australian Public Service and the Registrar were the Secretary of that Department.

21D   Principal member may engage consultants

             (1)  The Principal member may engage a person as a consultant in relation to any assistance or mediation that the Agency provides under any provision of this Act.

Consultants to have relevant skills or knowledge

             (2)  The Principal member may only engage a person under subsection (1) if:

                     (a)  the person has, in the opinion of the Principal member, particular skills or knowledge in relation to matters of substantial relevance to the assistance or mediation; and

                     (b)  the Principal member is satisfied that the person has an understanding of indigenous culture and heritage and an ability to deal with indigenous persons in a culturally sensitive manner.

Engagements to be in writing

             (3)  An engagement under subsection (1) must be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.

Consultant subject to Principal member’s direction

             (4)  A consultant engaged under subsection (1) is subject to directions given by the Principal member under subsection 19(3).

Liability

             (5)  If:

                     (a)  a person is engaged as a consultant under subsection (1); and

                     (b)  the Principal member determines, as part of the terms and conditions of the engagement of that person, that this subsection applies to the person;

the person is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done in good faith by the person in the capacity of such a consultant.

21E   Disclosure and conflict of interests

Consultant to disclose conflict of interest

             (1)  A person engaged under subsection 21D(1) as a consultant in relation to any assistance or mediation being provided by the Agency who has a conflict of interest in relation to the assistance or mediation must disclose the matters giving rise to that conflict to:

                     (a)  the Principal member of the Agency; and

                     (b)  the persons to whom the Agency is providing the assistance or mediation.

Requirement for consent

             (2)  The person must not perform his or her duties as a consultant in relation to the assistance or mediation unless the Principal member and the persons to whom the Agency is providing the assistance or mediation consent.

Meaning of conflict of interest

             (3)  For the purposes of this section, a person engaged under subsection 21D(1) as a consultant in relation to any assistance or mediation being provided by the Agency has a conflict of interest in relation to the assistance or mediation if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties as a consultant in relation to the assistance or mediation.

Conflict of interest at a particular time

             (4)  Without limiting subsection (3), a person engaged under subsection 21D(1) as a consultant in relation to any assistance or mediation being provided by the Agency has a conflict of interest at a particular time in relation to the assistance or mediation if:

                     (a)  at that time, the person is employed by, or engaged as a consultant or a lawyer to, an organisation or a person that has an interest in the matter in relation to which the assistance or mediation is being provided; or

                     (b)  at any time in the 12 months immediately before that time, the person was so employed or engaged.

21F   Registrar may engage consultants

             (1)  The Registrar may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Registrar.

Services include research

             (2)  Without limiting subsection (1), the services that a consultant may be engaged to perform include carrying out research under subsection 10(gc).

How engagement to be made

             (3)  An engagement under subsection (1) must be made:

                     (a)  on behalf of the Commonwealth; and

(b)    by written agreement.

Liability

             (4)  If:

                     (a)  a person is engaged as a consultant under subsection (1); and

                     (b)  the Registrar determines, as part of the terms and conditions of the engagement of that person, that this subsection applies to the person;

the person is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done in good faith by the person in the capacity of such a consultant.

Subdivision C—Miscellaneous administrative matters

21G   Annual report

             (1)  As soon as practicable after 30 June in each year, the Principal member must prepare and give to the Commonwealth Minister a report of the management of the administrative affairs of the Agency during the year.

             (2)  The report must include:

                     (a)  the financial statements required by section 49 of the Financial Management and Accountability Act 1997 ; and

                     (b)  an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997 .

             (3)  The Commonwealth Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

21H   Proceedings arising out of administration of Agency

                   Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Agency under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.

(39)   Heading to Division 2, page 14 (line 2), omit the heading, substitute:

Part 2A—The Registers of Claims for Protection and Agreements

(40)   Clause 22, page 14 (line 6), omit “Director”, substitute “Registrar”.

(41)   Page 14 (after line 7), after clause 22, insert:

22A  The Register of Agreements

             (1)  There is established by this section a register to be known as the Register of Agreements.

             (2)  The Register is to be maintained by the Registrar.

             (3)  The Register may be kept by the use of a computer.

(42)   Clause 23, page 14 (line 9), omit “Director”, substitute “Registrar”.

(44)   Clause 25, page 16 (lines 5 to 8), omit subclause (3), substitute:

             (3)  Before making the declaration under subsection (1), the Commonwealth Minister must:

                     (a)  notify:

                              (i)  all native title representative bodies for the State or Territory concerned; and

                             (ii)  ATSIC; and

                            (iii)  any other indigenous body with responsibilities in the State or Territory concerned in relation to indigenous cultural heritage;

                            of the proposed determination; and

                     (b)  invite submissions from them about the proposed determination; and

                     (c)  consider any submissions made in response to the invitation.

(46)   Clause 26, page 16 (lines 14 to 18), omit paragraph (a), substitute:

                     (a)  that those laws protect from injury or desecration all significant indigenous areas and significant indigenous objects;

(48)   Clause 26, page 16 (after line 25), after paragraph (c), insert:

                    (ca)  that, upon finding that an area or object is a significant indigenous area or significant indigenous object and that area or object is under threat of injury or desecration, the decision to protect must be made unless it is not in the interest of the State or Territory;

                   (cb)  that those laws require the integration of processes for the protection of significant indigenous areas into planning and development laws and processes and contain appropriate procedures for notifying:

                              (i)  indigenous persons who may be affected; and

                             (ii)  the relevant native title representative body for the area; and

                            (iii)  the independent heritage body;

                            of a development, mining or other proposal;

(49)   Clause 26, page 16 (lines 26 to 29), omit paragraph (d), substitute:

                     (d)  that those laws provide for persons to obtain the advance approval of indigenous persons to an activity in relation to significant indigenous areas;

(51)   Clause 26, page 16 (line 33), at the end of paragraph (e), add “and include, in respect of agreements covering significant indigenous areas, provision for the registration of agreements upon State and Territory land titles”.

(52)   Clause 26, page 17 (lines 1 to 3), omit paragraph (f), substitute:

                      (f)  that those laws protect culturally sensitive information from disclosure and do not require indigenous people to provide information where to do so would be contrary to indigenous tradition;

(53)   Clause 26, page 17 (line 9), after “deterrents to”, insert “, and remedies for,”.

(54)   Clause 26, page 17 (line 12), omit “and penalties”, substitute “, penalties which equate with the penalties provided under this Act and include the revocation or suspension of grants, licences or permits and compensation to affected indigenous persons”.

(56)   Clause 26, page 17 (line 14), at the end of subclause (1), add:

                   ; (k)  that those laws create an independent heritage protection body:

                              (i)  controlled by indigenous members representative of indigenous communities with provision for gender balance, adequate and suitable staffing, expertise and resources ; and

                             (ii)  that includes persons enrolled for at least 5 years as legal practitioners of the High Court, another federal court or the Supreme Court of a State or Territory; and

                            (iii)  responsible for the determination of the significance of areas and objects, and the threat of injury or desecration to those areas or objects in accordance with paragraph (c); and

                            (iv)  with responsibilities, powers and functions in relation to the matters contained in paragraphs (d) to (j) (inclusive) and (m);

                      (l)  that those laws must provide for the provision of reasons for a decision and judicial review, equivalent to that provided by the Administrative Decisions (Judicial Review) Act 1977 , of a decision not to provide heritage protection;

                    (m)  that those laws protect areas and objects that are significant to indigenous persons in terms of their indigenous traditions whilst an application for protection is being determined;

                     (n)  that those laws must provide access to indigenous people in relation to areas that are significant to those persons in terms of their indigenous traditions.

(57)   Clause 26, page 17 (line 18), omit “(h)”, substitute “(n)”.

(58)   Clause 26, page 17 (line 23), omit “and (h)”, substitute “, (h), (j), (k), (l) and (m)”.

(59)   Clause 27, page 17 (line 31) to page 19 (line 2), omit the clause, substitute:

27   Minister may revoke or vary accreditation

             (1)  Where the laws in force in a State or Territory have been declared to be an accredited heritage protection regime (the original declaration ) in relation to one or more of the following matters (the accredited matter or accredited matters ) :

                     (a)  the protection of areas situated within the jurisdictional limits of that State or Territory; or

                     (b)  the protection of objects (including indigenous human remains) situated within those jurisdictional limits; or

                     (c)  the reporting of findings of indigenous human remains situated within those jurisdictional limits;

those laws may be amended by a State or Territory and, subject to subsection (3), become accredited under this Act.

             (2)  A State or Territory must notify the Commonwealth Minister of all amendments to an accredited heritage protection regime it proposes to make.

             (3)  If the Commonwealth Minister is satisfied that the proposed amended accredited heritage protection regime complies with the requirements in subsection 26(2), he or she must make a declaration in writing to that effect.

             (4)  Before making a declaration under subsection (3), the Commonwealth Minister must:

                     (a)  notify:

                              (i)  all native title representative bodies for the State or Territory concerned; and

                             (ii)  ATSIC; and

                            (iii)  any other indigenous body with responsibilities in the State or Territory concerned in relation to indigenous cultural heritage;

                            of the proposed determination; and

                     (b)  invite submissions from them about the proposed declaration; and

                     (c)  consider any submissions made in response to the invitation.

             (5)  The Commonwealth Minister must revoke the original declaration in writing if a State or Territory amends its laws in relation to an accredited heritage protection regime without complying with this section.

(60)   Clause 29, page 20 (line 17), omit “Director”, substitute “Registrar”.

(63)   Heading to clause 30, page 21 (line 1), omit “ Director ”, substitute “ Registrar ”.

(64)   Clause 30, page 21 (line 2), omit “Director”, substitute “Registrar”.

(65)   Clause 30, page 21 (line 3), after “application”, insert “or an amended application”.

(66)   Clause 30, page 21 (line 6), omit “Director”, substitute “Registrar”.

(67)   Clause 30, page 21 (line 26), omit “Director”, substitute “applicant”.

(68)   Clause 30, page 21 (line 29), omit “Director”, substitute “Registrar”.

(69)   Clause 30, page 22 (line 1), omit “Director’s decision not to disclose”, substitute “non-disclosure of”.

(70)   Clause 31, page 22 (lines 3 to 19), omit “Director” (wherever occurring), substitute “Registrar”.

(71)   Clause 31, page 22 (line 5), after “laws”, insert “of an accredited heritage protection regime”.

(72)   Clause 31, page 22 (line 11), at the end of subclause (2), add “, or such further period permitted by the Registrar”.

(73)   Clause 31, page 22 (after line 19), at the end of the clause, add:

             (5)  All remedies are exhausted for the purpose of subsection (1) if all administrative processes available to applicants for protection under the laws of an accredited heritage protection regime of the State or Territory are exhausted.

(74)   Clause 32, page 22 (line 21) to page 23 (line 2), omit “Minister” (wherever occurring), substitute “Registrar”.

(75)   Clause 32, page 23 (lines 3 to 8), omit subclause (4), substitute:

             (4)  If it appears to the Registrar that an application has been dismissed in error, the Registrar may, on the application of the applicant, or on the Registrar’s own initiative, reinstate the application.

(76)   Clause 33, page 23 (line 9) to page 24 (line 15), omit “Director” (wherever occurring), substitute “Registrar”.

(77)   Clause 33, page 23 (line 20), omit “by notice published in a newspaper circulating in the region”, substitute “by notice in writing to the appropriate native title representative body and by notice published in a newspaper circulating in the region and in indigenous media outlets in the region”.

(78)   Clause 33, page 23 (line 31), omit “30”, substitute “60”.

(79)   Clause 33, page 24 (line 17), omit “Director”, substitute “applicant”.

(80)   Clause 33, page 24 (line 20), omit “Director”, substitute “Registrar”.

(81)   Clause 33, page 24 (line 23), omit “Director’s decision not to disclose”, substitute “non-disclosure of”.

(82)   Heading to clause 34, page 25 (line 3), omit “ Director ”, substitute “ Agency ”.

(83)   Clause 34, page 25 (line 5), omit “Director”, substitute “Registrar”.

(84)   Clause 34, page 25 (line 6), omit “Director”, substitute “Agency”.

(85)   Heading to clause 35, page 25 (line 10), omit “ Director ”, substitute “ Agency ”.

(86)   Clause 35, page 25 (line 12), omit “Director”, substitute “presiding member”.

(87)   Clause 35, page 25 (line 15), omit “Director”, substitute “Agency”.

(88)   Clause 35, page 25 (line 18), omit “Director’s”, substitute “Agency’s”.

(90)   Clause 35, page 25 (line 31), omit “Director”, substitute “presiding member”.

(91)   Clause 36, page 26 (lines 1 to 13), omit the clause.

(92)   Clause 37, page 26 (lines 14 to 22), omit the clause, substitute:

37  Binding nature of reports

             (1)  The Minister is bound by the finding of the Agency as to the matters referred to in paragraphs 35(3)(a), (b) and (d) as set out in the Agency’s report.

             (2)  If the Minister is satisfied that fresh evidence that would affect the outcome of the application has not been considered by the Agency, the Minister may remit the Agency’s report to the Agency with directions that the Agency assess and make findings in relation to such representations as the Minister considers constitute fresh evidence.

             (3)  For the purpose of subsection (1) and section 38, the Agency’s report constitutes its findings under subsection 35(3) and subsection 37(2).

(93)   Clause 38, page 26 (line 30) to page 27 (line 2), omit all words from and including “the Minister may” to the end of the clause (but not including the note), substitute “the Minister must, after having regard to the report of the Agency, make such an order in respect of the area or object unless it is in the national interest not to make the order”.

(94)   Clause 39, page 28 (line 3) to page 29 (line 5), omit the clause.

(95)   Clause 40, page 29 (lines 6 to 20), omit the clause.

(96)   Clause 41, page 29 (line 21) to page 30 (line 15), omit the clause, substitute:

41  Minister may require report from Agency

                   In relation to an AR application, the Minister must, subject to section 42, require the Agency to make a report, in accordance with Division 6, which must:

                     (a)  contain a finding as to whether or not the area, or part of the area, or object concerned is a significant indigenous area or a significant indigenous object in relation to the applicant; and

                     (b)  contain a finding as to whether or not the area or object concerned is subject to the threat of injury or desecration; and

                     (c)  outline the processes involved in reaching the findings referred to in paragraphs (a) and (b); and

                     (d)  advise the Minister on the effect that the making of an LPO would have on the proprietary and pecuniary interests of persons other than the applicant and provide a summary of the representations made in respect of that matter; and

                     (e)  advise the Minister of any other matters considered by the presiding member to be relevant to the claim for protection.

(97)   Heading to clause 42, page 30 (line 16), omit “ Director ”, substitute “ Agency ”.

(98)   Clause 42, page 30 (line 19), omit “Director”, substitute “Agency”.

(99)   Clause 43, page 30 (line 23) to page 31 (line 6), omit the clause.

(100) Clause 44, page 31 (lines 7 to 15), omit the clause, substitute:

44  Binding nature of reports

             (1)  The Minister is bound by the findings of the Agency as to the matters referred to in paragraphs 41(1)(a), (b) and (d) as set out in the Agency’s report.

             (2)  If the Minister is satisfied that fresh evidence that would affect the outcome of the application has not been considered by the Agency, the Minister may remit the Agency’s report to the Agency with directions that the Agency assess and make findings in relation to such representations as the Minister considers constitute fresh evidence.

(3)   For the purpose of subsection (1) and paragraph 45(e), the Agency’s report constitutes its findings under subsections (2) and 41(1).

(101) Heading to clause 45, page 31 (line 16), omit “ may ”, substitute “ must ”.

(103) Clause 45, page 31 (line 23), omit “may”, substitute “must”.

(104) Clause 45, page 31 (line 29), omit “Director”, substitute “Agency”.

(105) Clause 45, page 31 (lines 31 and 32), omit paragraph (e), substitute:

                     (e)  the views of the applicant in relation to any representations made to the Minister under paragraph (c), which representations must be provided to the applicant on a confidential basis; and

(107) Clause 45, page 32 (lines 2 and 3), omit “if the Minister is satisfied that the making of such an order is in the national interest”, substitute “unless it is in the national interest not to make the order”.

(108) Clause 46, page 33 (line 5), after “period”, insert “, being a period of not less than 10 years,”.

(109) Clause 46, page 33 (line 9), omit “in relation to”, substitute “that ensure”.

(110) Clause 46, page 33 (line 10), at the end of subclause (1), add:

             ; and (c)  provide for access to the area by indigenous persons to whom the area is of particular significance in accordance with indigenous tradition.

(111) Clause 46, page 33 (line 15), omit “in relation to”, substitute “that ensure”.

(112) Clause 47, page 33 (line 30), omit “Director”, substitute “Registrar”.

(113) Clause 47, page 34 (line 1), omit “Director”, substitute “Registrar”.

(115) Clause 48, page 35 (lines 3 to 21), omit the clause, substitute:

Subdivision A Mediation conferences and negotiation

48   Mediation conferences

Presiding member to direct conference to be held

             (1)  Where mediation is provided under this Act, the Agency may hold such conferences of the parties or their representatives as the Agency considers will help in resolving the matter.

Member must preside

             (2)  A conference must be presided over by a member of the Agency.

Assistance for presiding member

             (3)  The member presiding at a conference may be assisted by another member of the Agency or by a member of the staff of the Agency.

Statements etc. at conference are without prejudice

             (4)  In a proceeding before a Court, or any other proceeding, including the making of reports to the Minister, under this Act relating to the proceeding subject to mediation, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken, act done or document produced at a conference.

Assistance includes procedures for non-disclosure

             (5)  Assistance provided by the presiding member may include assisting the parties to agree on the procedures to be followed in the course of negotiation, including procedures that will restrict the disclosure of:

                     (a)  information that, under indigenous tradition, is confidential or subject to particular disclosure restrictions; or

                     (b)  commercial information that is provided in confidence for the purposes of the negotiation.

Member not to take further part in relation to a proceeding

             (6)  Unless the parties otherwise agree, a member who presides over, or assists at, a conference in relation to a proceeding may not, in any other capacity, take any further part in the proceeding.

Participation by telephone etc.

             (7)  The presiding member may allow a person to participate by:

                     (a)  telephone; or

                     (b)  closed-circuit television; or

                     (c)  any other means of communication.

Division applies as if consultant were a member

             (8)  If a consultant is engaged under subsection 21D(1) to conduct mediation in relation to a particular matter under this Division, this Division applies in relation to that matter as if the consultant were a member of the Agency.

48A   Parties to negotiation and mediation processes

             (1)  If the Agency is required under Division 2 or 3 to attempt, by the use of negotiation or mediation processes in accordance with this Division, to facilitate an agreed outcome in relation to the area or object to which an application relates, the Agency must use its best endeavours to identify the parties appropriate to participate in those processes.

             (2)  For the purposes of this section, the parties appropriate to participate in negotiation or mediation processes:

                     (a)  must include the applicant and any other persons identified by the Agency as having a direct proprietary or pecuniary interest in the area or object concerned (the core parties ); and

                     (b)  may include any other person who has an interest in the area or object concerned and who the Agency identifies as a party appropriate to participate in those processes.

             (3)  A failure by the Agency to identify a person as a party appropriate to participate in negotiation or mediation processes does not prevent the registration of an agreement reached between the parties who are so identified.

Limiting parties at conferences

             (4)  The presiding member may direct that only one or some of the parties appropriate to participate in the negotiation or mediation processes may attend, and be represented, at a conference.

Parties may be represented

             (5)  A party may be represented by a barrister, a solicitor or another person.

48B  Conferences to be held in private

                   A conference must be held in private, unless the member presiding directs otherwise and no party objects.

48C  Presiding member may permit disclosure of information

If the parties agree, the presiding member may direct that:

                     (a)  any information given, or statements made, at a conference; or

                     (b)  the contents of any document produced at a conference;

may be disclosed.

(116) Page 35 (after line 21), before clause 49, insert:

Subdivision B—How assistance or mediation is to be provided

(117) Clause 49, page 35 (line 22) to page 36 (line 10), omit the clause, substitute:

49   Regulations about assistance or mediation

             (1)  The regulations may make provision in relation to the way in which:

                     (a)  any assistance is to be provided by the Agency under any provision of this Act; or

                     (b)  any mediation, that the Agency is requested to provide, is to be provided under any provision of this Act.

Regulations must be consistent with this Act

             (2)  Such regulations must not be inconsistent with any provision of this Act.

(118) Clause 50, page 36 (line 14), omit “30”, substitute “60”.

(119) Clause 50, page 36 (line 18), omit “30”, substitute “60”.

(120) Clause 50, page 36 (line 26), omit “Director”, substitute “Principal member”.

(122) Clause 51, page 37 (line 2), omit “Director”, substitute “presiding member”.

(123) Clause 51, page 37 (line 2), after “register”, insert “particulars of”.

(124) Clause 51, page 37 (lines 3 to 5), omit subclause (2), substitute:

             (2)  If the presiding member is satisfied that the agreement is consistent with the purposes of this Act, he or she must direct the Registrar to enter particulars of the agreement on the Register.

(127) Clause 53, page 37 (line 22) to page 38 (line 26), omit the clause, substitute:

53   Termination of formal negotiation and mediation processes

Presiding member may order mediation to cease

             (1)  The presiding member may, of his or her own motion, at any time in a proceeding, order that mediation is to cease in relation to the whole or a part of the proceeding if the presiding member considers that:

                     (a)  any further mediation will be unnecessary in relation to the whole or that part; or

                     (b)  there is no likelihood of the parties being able to reach agreement and neither the negotiation nor mediation processes between the core parties have any prospect of success within a reasonable time.

Party may seek cessation of mediation

             (2)  Paragraph (1)(a) or (1)(b) is satisfied if one or more of the core parties to a proceeding, at any time after the expiration of 3 months after the start of mediation, notifies the presiding member that that party or those parties do not wish to proceed with mediation in relation to the whole of the proceeding or a part of the proceeding.

Where presiding member must order mediation to cease

             (3)  If paragraph (1)(a) or (1)(b) is satisfied, the presiding member must, by notice in writing to all of the parties concerned, inform them:

                     (a)  that he or she is so satisfied; and

                     (b)  that formal negotiation and mediation processes are no longer available.

             (4)  The cessation of mediation under this section does not prevent core parties from entering into an agreement under this Subdivision or the Agency from continuing to provide mediation or negotiation assistance to those core parties.

(128) Clause 54, page 38 (line 29) to page 39 (line 6), omit “Director” (wherever occurring), substitute “Registrar”.

(129) Clause 54, page 39 (lines 7 to 13), omit subclause (2), substitute:

             (2)  The Registrar must not register an agreement to which subsection (1) relates unless the presiding member or, if there is no presiding member, the Principal member, is satisfied:

                     (a)  that the parties to the agreement included, or if negotiation or mediation processes had been undertaken would have included, the core parties within the meaning of section 49; and

                     (b)  the agreement is consistent with the purposes of this Act.

(130) Clause 54, page 39 (line 14), omit “Director”, substitute “Registrar”.

(131) Clause 54, page 39 (line 16), omit “Director”, substitute “Agency”.

(132) Clause 54, page 39 (lines 18 to 20), omit paragraph (3)(b).

(133) Clause 54, page 39 (line 23), omit “Director”, substitute “Registrar”.

(134) Clause 55, page 40 (line 3) to page 41 (line 27), omit the clause, substitute:

55  Procedures to be followed by Agency in preparing report

             (1)  The Agency must, in respect of an application for which a report is required under Division 2 or 3, by notice in writing to the appropriate native title representative body and by notice published in a newspaper circulating in the region and in indigenous media outlets in the region in which the area or object concerned is situated:

                     (a)  inform persons of particulars of the application in the same terms, and subject to the same limitations, as apply for the purposes of subsections 33(3) and (4); and

                     (b)  invite persons to make, within a period specified in the notice, representations concerning:

                              (i)  the significance of the area or object concerned to the applicant; and

                             (ii)  the threat to the area or object concerned posed by any proposed activity; and

                            (iii)  the effect that the making of an LPO in respect of that area or object would have on the proprietary and pecuniary interests of persons other than the applicant.

             (2)  If, in relation to a UR or AR application relating to an object, the Agency is satisfied that public comment on the application would not be necessary or appropriate, the Agency may prepare a report without giving public notice as required by subsection (1).

             (3)  The Agency must, at the request of the applicant, receive representations made in accordance with, and the manner provided by, indigenous tradition.

             (4)  A notice under subsection (1) must also be accompanied by a statement of the kinds of matters that might be dealt with if an LPO is made in relation to the area or object concerned.

(135) Clause 56, page 41 (line 28) to page 42 (line 17), omit the clause, substitute:

56   Agency may adopt State or Territory findings

                   In relation to an AR, if after:

                     (a)  examining the procedures followed by the independent body established under an accredited heritage protection regime of a State or Territory; and

                     (b)  hearing submissions of the parties who gave evidence or made representations to the independent body in relation to the evidence given or representations made by those parties;

the presiding member is satisfied that the procedures followed and the evidence and representations considered by the independent body were sufficient to provide a reliable basis for the finding, the presiding member may adopt one or more of the independent body’s findings for the production of the Agency’s report.

(136) Clause 57, page 42 (lines 21 and 22), omit “Director, and, where appropriate, an independent reviewer,”, substitute “Agency”.

(137) Clause 57, page 42 (line 24), at the end of the clause, add “and the Agency must make an assessment of the significance, and the threat to this significance, based on the degree of intensity of the belief and feeling of indigenous people in relation to the area or object”.

(138) Clause 58, page 42 (line 25) to page 43 (line 20), omit the clause.

(139) Clause 59, page 43 (lines 22 and 23), omit “Director or to an independent reviewer”, substitute “Agency”.

(140) Clause 59, page 43 (line 26), omit “Director or independent reviewer”, substitute “Agency”.

(141) Clause 59, page 43 (lines 27 to 31), omit subclause (2).

(142) Clause 60, page 44 (lines 2 to 9), omit “Director” (wherever occurring), substitute “Agency”.

(143) Clause 60, page 44 (lines 10 to 14), omit subclause (2).

(144) Clause 60, page 44 (line 16), omit “or (2)”.

(145) Clause 60, page 44 (line 17), omit “Director or independent reviewer”, substitute “Agency”.

(146) Clause 60, page 44 (line 21), omit “or (2)”.

(147) Clause 61, page 44 (line 24), omit “Director or of an independent reviewer”, substitute “Agency”.

(148) Clause 61, page 44 (line 30) to page 45 (line 3), omit subclause (2).

(149) Clause 62, page 46 (line 5), omit “Minister”, substitute “Principal member”.

(150) Clause 62, page 46 (line 6), omit “subsection”, substitute “section”.

(151) Clause 62, page 46 (line 6), omit “the Minister’s”, substitute “his or her”.

(152) Clause 62, page 46 (line 9) to page 47 (line 9), omit subclauses (2), (3) and (4), substitute:

             (2)  A person may apply to the Principal member in writing or orally for an EPO.

             (3)  If an EPO will affect an area in a State or Territory where there is no accredited State or Territory regime, the Principal member must make an EPO if he or she has reasonable grounds to believe that:

                     (a)  the area or object concerned appears to be a significant indigenous area or a significant indigenous object; and

                     (b)  the area or object appears to be under immediate threat of injury or desecration.

             (4)  I f:

                     (a)  an application for emergency or interim protection has been rejected, or is not available, under an accredited State or Territory regime; or

                     (b)  an application for an LPO has been rejected under subsection 31(1);

the Principal member may make an EPO if he or she has reasonable grounds to believe that:

                     (c)  the area or object concerned appears to be a significant indigenous area or a significant indigenous object; and

                     (d)  the area or object appears to be under immediate threat of injury or desecration; and

                     (e)  the protection under the EPO should be available at that time.

(153) Clause 62, page 47 (lines 16 to 26), omit “Minister” (wherever occurring), substitute “Principal member”.

(154) Clause 63, page 48 (lines 2 to 18), omit “Minister” (wherever occurring), substitute “Principal member”.

(155) Clause 63, page 48 (line 5), omit “may”, substitute “must”.

(156) Clause 63, page 48 (line 9), omit “is satisfied”, substitute “has reasonable grounds to believe”.

(157) Clause 63, page 48 (line 14), omit “; and”.

(158) Clause 63, page 48 (lines 15 to 18), omit subparagraph (iii).

(159) Clause 63, page 48 (lines 19 to 32), omit subclause (3).

(161) Clause 63, page 49 (line 3), omit “Minister”, substitute “Principal member”.

(162) Clause 64, page 49 (line 17) to page 50 (line 2), omit “Minister” (wherever occurring), substitute “Principal member”.

(163) Clause 65, page 51 (line 8), omit “Director”, substitute “Registrar”.

(164) Clause 65, page 51 (line 10), omit “Director”, substitute “Agency”.

(165) Clause 65, page 51 (after line 29), at the end of the clause, add:

             (3)  No agreement may be registered under Subdivision 5B which relates to multiple applicants and applications, deemed to be joined pursuant to subsection (1) and negotiated pursuant to subsection (2), unless the agreement is entered into, executed and lodged for registration by each of the individual applicants so joined.

(166) Clause 66, page 51 (line 30) to page 53 (line 3), omit the clause.

(167) Clause 67, page 54 (line 4) to page 55 (line 4), omit “Director” (wherever occurring), substitute “Agency”.

(168) Clause 68, page 55 (lines 5 to 29), omit “Director” (wherever occurring), substitute “Agency”.

(169) Clause 69, page 56 (line 6), at the end of the penalty, add “and a fine of $200,000”.

(170) Clause 69, page 56 (line 9), at the end of the penalty, add “and a fine of $100,000”.

(171) Clause 70, page 56 (line 23), omit “did not know of”, substitute “had no reasonable grounds for suspecting”.

(172) Clause 75, page 62 (line 2), omit “Commonwealth Minister’s”, substitute “Agency’s”.

(174) Clause 77, page 64 (line 10), omit “subsection 27(2)”, substitute “subsection 27(3)”.

(175) Clause 77, page 64 (line 10), omit “or revoking”.

(176) Clause 77, page 64 (line 13), omit “an LPO under Part 4 or”.

(177) Clause 80, page 67 (lines 3 to 21), omit the clause, substitute:

80   Delegation

             (1)  The Principal member may, by written instrument, delegate to a Deputy Principal member any of his or her powers under this Act.

             (2)  The Principal member may also, by written instrument, delegate to the Registrar, a Deputy Registrar or an SES employee or acting SES employee of the Agency the Principal member’s powers in relation to an EPO (other than the Principal member’s power to make an EPO under subsection 62(4)).

             (3)  The Minister must not delegate his or her powers in relation to the following matters:

                     (a)  the Minister’s powers in relation to the accreditation of the laws of a State or Territory as an accredited heritage protection regime under Part 3;

                     (b)  the Minister’s powers in relation to an LPO.

(179) Page 67 (after line 26), at the end of the bill, add:

83  Indigenous Cultural Heritage Advisory Council

             (1)  There is established by this Act an Indigenous Cultural Heritage Advisory Council.

             (2)  The functions of the Council are:

                     (a)  to advise the Agency and the Commonwealth Minister on:

                              (i)  issues arising under the Act; and

                             (ii)  appropriate procedures for dealing with indigenous people in the performance of functions under this Act; and

                            (iii)  the making of regulations under this Act; and

                     (b)  to liaise with, and promote the views of, indigenous people in relation to heritage protection issues; and

                     (c)  to carry out research for the purpose of carrying out its functions.

             (3)  The members of the Council will consist of indigenous people from each of the States and Territories of Australia who will appoint a chairperson and deputy chairperson.

             (4)  The Council will employ staff to assist it in carrying out its functions.

             (5)  The Governor-General may make regulations in relation to the Council.

             (6)  The Commonwealth Minister must confer with all native title representative bodies and ATSIC and take account of their submissions for the purpose of drafting regulations in relation to the Council.

 

 

 

House of Representatives reasons for disagreeing to Senate amendments

 

Senate Amendments 1-3 and 7-11

 

These amendments propose changes to key definitions and the objects of the Bill.  They include creating extra objects for the Bill involving regulation of the purchase, sale and exhibition of all indigenous objects and promotion of the development of indigenous culture and heritage.

 

The additional objects amendment is misleading as to the contents of the rest of the amendments, given the absence of any further reference to those objects in the balance of the proposed amended Bill. The alteration to the objects of the Bill to regulate the purchase, sale and exhibition of all indigenous objects is inappropriate, given the existence of Commonwealth and State legislation in this field. Amendments to the key definitions would significantly change the scope and outcome of the Bill. For example, the proposed ‘national interest’ definition would potentially allow all applications to raise legitimate national interest considerations and would potentially result in the Commonwealth being involved in nearly all heritage protection applications, which is inconsistent with the scheme of the Bill.

 

Accordingly, the House of Representatives does not accept these amendments.

 

Senate Amendments 12-42

 

These amendments would establish a new statutory authority, the Indigenous Heritage Protection Agency, to undertake the work envisaged in the Bill for the Director of Indigenous Heritage Protection. A Heritage Registrar is also proposed to undertake the day-to-day functions of the Agency. The Agency and Registrar would handle the current workload of about 10 cases a year administered by less than 2 staff. As such, the structures proposed in the amendments are unnecessarily elaborate and needlessly expensive. The proposed establishment of the Agency also suggests an inappropriate expansion of Commonwealth activity in this field.

 

Accordingly, the House of Representatives rejects these amendments.

 

Senate Amendments 44, 46, 48-49, 51-54 and 56-59

 

These amendments propose significant additions to and modifications of the standards in the Bill for accreditation of State/Territory regimes.  They include a provision for protection to be removed only if it is in the State/Territory interest, the establishment of independent heritage bodies and a requirement that States/Territories provide indigenous people with access to areas of significance. They would also require States/Territories to seek the approval of the Commonwealth Minister for all proposed amendments to their accredited regimes.

 

The proposals are highly prescriptive and therefore difficult to apply across all States/Territories. Certain proposals, such as requiring States/Territories to provide access, would be impractical to implement and would complicate land administration in the States/Territories. Some of the changes proposed would require relatively subjective decisions about whether the standards are met, increasing the potential for litigation about accreditation processes. Commonwealth approval of every change to State/Territory legislation would be inefficient and is unnecessary as the Commonwealth Minister is required to revoke accreditation where changes to a regime mean that it no longer meets the standards. 

 

Therefore, the House of Representatives does not accept these amendments.

 

Senate Amendments 60, 63-88, 90-101, 103-105, 107-113

 

These amendments involve the making of significant modifications to the system of application for Commonwealth protection and the making of protection orders.  They include removing the ‘national interest’ test for Commonwealth consideration of cases from accredited State/Territory regimes, and requiring the Commonwealth Minister to make a protection order unless it is in the national interest not to do so. They would require that long-term protection orders be made for a minimum of 10 years. The amendments also propose to remove the requirement that applicants exhaust State/Territory processes in unaccredited regimes.

 

The proposals would result in potentially all applications for protection being considered under the Commonwealth regime. They would also significantly reduce the discretion available to the Commonwealth Minister under the existing legislation in relation to deciding whether to make a protection order and reduce flexibility in the content of such protection orders.  The amendments would also reduce the prospect of matters being dealt with at the State level without the need for Commonwealth involvement.

 

Accordingly, the House of Representatives rejects these amendments.

 

 

Senate Amendments 115-120, 122-124, 127-159 and 161-66

 

These amendments cover mediation, the making of reports, emergency and interim protection orders and multiple applications.

 

While many of the amendments concerning mediation are minor in scope, they do little to enhance the operation of those provisions. In particular, effectively compelling the parties to participate in mediation for 3 months and removing the Minister’s discretion to terminate mediation will needlessly lengthen the process.

 

The proposed amendments to the reporting process would impede the making of reports in a timely manner, thereby prolonging the uncertainty for all parties involved. For example, as the amendments delete provision for the adoption of an unaccredited regime’s findings, the Commonwealth reporting body would be required to duplicate the work of a State/Territory body in relation to every case emanating from an unaccredited regime. Applications from accredited regimes are also likely to experience delays as a result of a proposed amendment which would enable parties who have given evidence to a State body to make submissions to the Commonwealth before it decides whether the State/Territory findings should be adopted.

 

The powers of the Commonwealth Minister are also significantly impaired by these amendments. This diminished role is evidenced in those provisions binding the Minister to the findings of the proposed Agency on the effects of a protection order upon the pecuniary and proprietary interest of other parties, removing the Minister from the Interim Protection Order and Emergency Protection Order determination process, and eliminating the Minister’s power to make one order covering multiple applications. These amendments would establish an inefficient process that unnecessarily fetters government decision making.

 

Accordingly, these amendments are rejected by the House of Representatives. 

 

Senate Amendments 167-172, 174-177 and 179

 

These amendments cover a range of miscellaneous issues.

 

Amendments 167-168 replace the Director with the Indigenous Heritage Protection Agency in relation to the discovery and disposal of indigenous human remains. These amendments are dependent upon the establishment of an unnecessary body.

 

Amendments 169-171 propose increasing maximum fines and changing defences for protection order offences. Fines are not prescribed in the Bill because there are automatic penalty guidelines laid down in the Crimes Act . Supporting these amendments would promote inconsistency in sentencing. The proposed amendment changing defences for protection order offences would actually make it harder to bring a successful prosecution for contravention. The defendant would only need to prove they could not reasonably have known of the protection order for the defence to be successfully raised.

 

Amendment 172 replaces the Minister with the Indigenous Heritage Protection Agency as the applicant to the Federal Court for an injunction. This amendment is opposed as it is consequential to the establishment of an unnecessary body.

 

Amendments 174-175 would make any amendment of a State/Territory regime following accreditation disallowable. To make every proposed amendment of a State/Territory regime a disallowable instrument is burdensome as even minor changes will require approval. As amendments are required to be consistent with the standards there is no need for such a cumbersome mechanism.

 

Amendment 176 would remove the making of a protection order as a disallowable instrument but retain the revocation of a protection order as a disallowable instrument. The reasons for this are unclear - under the current Act the making of protection orders is a disallowable instrument, as is revocation. The amendment appears to establish an unbalanced scheme of parliamentary review in this area.

 

Amendment 177 prescribes those persons to whom the Principal Member of the Indigenous Heritage Protection Agency may delegate powers and those powers that cannot be delegated by the Minister. This amendment is opposed as it is consequential to the establishment of an unnecessary body.

 

Amendment 179 would establish an Indigenous Cultural Heritage Advisory Council. Such a Council would cause delays in decision-making and be cumbersome and expensive to maintain given the small number of cases dealt with by the Commonwealth.

 

Accordingly, the House of Representatives rejects these amendments.

 

 

______________________________

 

 

SCHEDULE OF THE UNRELATED AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES

 

 

(1)        Clause 36, page 26 (after line 13), at the end of the clause, add:

(2)                The independent reviewer is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done in good faith by the independent reviewer in the capacity of independent reviewer.



 

(2)                Clause 43, page 31 (after line 6), at the end of the clause, add:

(2)        The independent reviewer is not personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done in good faith by the independent reviewer in the capacity of independent reviewer.

 

 

 

 

 

                                              I C HARRIS

Clerk of the House of Representatives

 

 

House of Representatives

9 December 1999