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Heritage protection

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The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides a means for Aboriginal and Torres Strait Islander people to gain protection for areas and objects of significance in accordance with their tradition.

Under the Act, the Minister for Aboriginal and Torres Strait Islander Affairs can make a declaration protecting significant objects or areas anywhere within Australia or Australian waters. The Act also encourages heritage protection through mediated negotiation and agreement between land users,

developers and Indigenous people.

The Heritage Protection Act was legislated to provide an avenue of last resort - that is, to allow the Commonwealth Minister to protect Indigenous heritage where State and Territory heritage laws or processes had failed.

The Commonwealth's Heritage Protection Act is important because it: • reminds State and Territoiy governments that the protection of Indigenous heritage is a matter of national importance; • provides Indigenous people with some bargaining power in negotiations

over areas and objects of significance with State and Territory governments as well as developers; and • enables areas and objects to be protected on the basis of their significance to Indigenous people rather than to the scientific or wider


Review of the Heritage Protection Act In 1995-96 the Act was reviewed by Elizabeth Evatt QC. The Review examined the terms and operation of the Heritage Protection Act because there had been litigation and adverse publicity associated with a number of decisions made under the Act.


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In her 1996 report, Evatt made wide-ranging recommendations which would both improve the processes established by the Act and strengthen the capacity for State, Territory and Commonwealth governments to protect Indigenous heritage. The Evatt Report has been widely supported by Indigenous people.

Government Amendment BiU Following the review, the Government drafted a Bill to amend the Heritage Protection Act. The Bill was passed in the House of Representatives on 4 June, and is now awaiting debate in the Senate.

This Bill largely ignores Evatt’s recommendations, and would allow the Commonwealth to withdraw from protecting Indigenous heritage. Instead, State/Territory heritage legislation would be accredited after certain ‘minimum standards’ are met, and the Commonwealth’s involvement limited to cases involving the ‘national interest'.

The Bill has been criticised by Justice Evatt and, significantly, by the Government-dominated Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. This committee has reported both on the Evatt review and on the draft BiU.

While many changes could be made to improve the BiU, ATSIC’s top two priorities for amendment are; • retention of Commonwealth legislation as a last resort; and • prescription of more detailed comprehensive minimum standards for the

accreditation of State and Territory regimes.

ATSIC would also like to ensure that the Bill includes; • a fair and transparent process to accredit State and Territory heritage protection regimes; • greater Indigenous participation in the processes developed to protect

their heritage; and • clear direction to the courts on the weight which should be placed on the public interest in protecting culturally sensitive information.

The current role of ATSIC The current Heritage Protection Act is administered by the Minister for Aboriginal and Torres Strait Islander Affairs, with advice and assistance from the Heritage Protection Section in ATSIC.

Only the Minister has the power to make declarations of protection and decisions on the nomination of mediators and reporters, though there are a number of authorised officers given power by the Minister to act in limited circumstances.


ATSIC’s role involves some of the following:

• dealing with all aspects of applications - investigating applications made under the Act; consulting with relevant agencies including indigenous organisations and groups, State/Territory government agencies; obtaining legal advice; managing consultants; • preparing advice on all aspects of the administration of the Act and

correspondence and documents for the Minister.

Rationale for continuing ATSIC involvement It has been suggested that there is a potential conflict of interest for ATSIC in administering the Act - that is, it must advise the Minister on applications while at the same time providing assistance to Indigenous groups applying for protection.

Evatt suggested that an independent agency could be created to deal with heritage matters, although she stated that ATSIC had carried out its duties with “integrity and concern”.

The Coalition Bill proposes the establishment of an Office of Indigenous Heritage Protection.

ATSIC has pointed out that if the Heritage Protection Act is amended along the lines suggested by Evatt - i.e. separating decisions on significance from decisions on protection - then an independent statutory office within ATSIC could perform the same functions as Evatt’s proposed Heritage Protection Agency.

ATSIC has considerable expertise and experience in dealing with Indigenous issues. It has its own elected arm of Indigenous representatives from around the country, and wide-ranging links with other Indigenous organisations and with State/Territory agencies.

The involvement of ATSIC ensures Indigenous participation in matters of concern to Indigenous people.