Oct 10, 2006

Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005

Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005

Second Reading

10 October 2006

Mr ALBANESE (Grayndler) (7.50 p.m.)—On behalf of the Australian Labor Party, as shadow minister for heritage I rise to make a contribution to the debate, which is important, on the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 which is before the House. There is an ongoing debate about Australia’s national identity and about what it is that makes us Australian. People talk about mateship, our love of sport and our sense of fair play. They are all important. But the truth is that the starting point of Australian identity is our Aboriginal and Torres Strait Islander heritage. It is a heritage that is too often ignored in public debate. It is certainly ignored for the most part by the Howard government. But it remains an inconvenient truth for that government.

The last 10 years has seen a complacent attitude towards our Indigenous heritage. For 10 years now there has been an obvious need for reform of Indigenous heritage protection, but that reform has not been delivered. I will come back to that. I think it is important to first get a sense of what we are talking about when we refer to Indigenous heritage. The excellent Australian Heritage Commission publication Ask First: A guide to respecting Indigenous heritage places and values states:

Indigenous heritage is a unique, irreplaceable part of Australia’s national cultural heritage that requires greater recognition and protection …

Indigenous heritage is dynamic. It includes tangible and intangible expressions of culture that link generations of Indigenous people over time. Indigenous people express their cultural heritage through ‘the person’, their relationships with country, people, beliefs, knowledge, law, language, symbols, ways of living, sea, land and objects all of which arise from Indigenous spirituality.

Ask First defines Indigenous heritage places as:

… landscapes, sites and areas that are particularly important to Indigenous people as part of their customary law, developing traditions, history and current practices.

Indigenous heritage values include spirituality, law, knowledge, practices, traditional resources or other beliefs and attachments.

That is a very powerful way of looking at heritage and, it seems to me, a very different way to how we often approach our heritage. The two main pieces of legislation that provide for the protection of Indigenous heritage are the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the EPBC, the Environment Protection and Biodiversity Conservation Act 1999.

In looking at the bill before us it is important to first consider the historical context in which the legislation was put in place. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was introduced by the Hawke Labor government. In introducing the original bill, on 6 June 1984, Senator Susan Ryan stated that it would:

… fill a gap in the law of Australia which can allow sites of significance to be damaged, destroyed or desecrated, and can allow objects of significance, including Aboriginal human remains, to be traded, displayed and otherwise used in ways which are anathema to Aboriginals and their traditions.

The preservation and protection of this ancient and significant culture from the destructive processes which have been operating at different rates across this country can only enrich the heritage of all Australians.

This was an important piece of legislation, produced at a significant time in Australian history and a significant time in the relationship between Indigenous and non-Indigenous Australians. I pay tribute to the work of the Hawke Labor government in this regard. Although the legislation was significant, it was always intended as a stopgap measure while the then Labor government developed more comprehensive national land rights legislation. When it became apparent in 1986 that such legislation would not be forthcoming at that time, its sunset clause was repealed. The stopgap measure in the end became a permanent measure.

In 1995, the then Aboriginal affairs minister, my friend Robert Tickner, announced a review of the act by Justice Elizabeth Evatt. The Evatt inquiry, which reported on 21 June 1996, outlined a number of concerns with the implementation of the act. Its report noted that the act was intended to operate as a last resort after the application of state and territory laws, but expressed concern, saying:

… the interaction between Commonwealth and State/Territory processes is not clearly established.

The Evatt inquiry starkly warned:

.. Aboriginal people consider that the Act has not protected their heritage.

The Evatt inquiry went on to make some major recommendations. Included in those was one which said that we needed to:

… provide a straightforward and simple procedure at Commonwealth level where State or Territory legislation does not provide effective protection for an area or site, or where that protection is withdrawn by the State or Territory Minister.

I mention this because it was very clear in 1996 that there was a need for reform to further strengthen Indigenous heritage protection. The previous Labor government had established this inquiry. The inquiry had reported. But, unfortunately, it has taken 10 long years for this government to respond to that inquiry—to have this legislation and see some level of reform.

In fact, over the last 10 years, the Howard government has tried on many occasions to wind back Indigenous heritage protection, consistent with its general attitude towards Indigenous Australians. In 1998, the government tried to amend the Aboriginal and Torres Strait Islander Heritage Protection Act to narrow the responsibilities of the federal government. The then shadow minister for Aboriginal affairs, my colleague the member for Banks, described that proposal as:

… the withdrawal of the Commonwealth from Aboriginal heritage protection in all but a few narrowly defined instances of a so-called ‘national interest’. In seeking to do so the government is walking away from its constitutional and international responsibilities.

These measures were opposed by Indigenous groups and by the Australian Labor Party. Because of this pressure, the 1998 bill was withdrawn. However, in 2003 the Howard government was able to push through the Senate a new heritage regime in the form of amendments to the Environment Protection and Biodiversity Conservation Act. The new regime essentially limited Commonwealth responsibility to those places on the National Heritage List and the Commonwealth Heritage List, and gutted the independence of the Australian Heritage Commission. That automatically changed the way that Indigenous heritage was protected.

Labor opposed the 2003 heritage bills, and history has shown we were right to do so. I pay tribute to my predecessor as shadow minister for environment and heritage, the member for Wills, Kelvin Thomson, who played an important role at that time in ensuring that a principled decision was taken by the Australian Labor Party with regard to that legislation. During debate on the 2003 heritage bills, the government actually acknowledged they had failed to adequately address Indigenous heritage protection. On 20 August 2003, the then Leader of the Government in the Senate, Robert Hill, stated:

We recognise the shortcomings in the existing system—

he was talking about Indigenous heritage protection—

Reform of that is long overdue.

He then went on to say that the government was:

… anxious to have a new and better piece of legislation put in place as quickly as possible.

That new and better piece of legislation never materialised, and the bill before us certainly does not complete the job. As I said before, Labor opposed the heritage bills of 2003, and we were right to do so. We were sceptical about the promise of further legislation, and this scepticism was justified. In particular, we were concerned about the impact of the new heritage regime on Indigenous heritage. On the very same day that Senator Hill made his comments, Senator Lundy said:

Labor have expressed our concern and asked direct questions of the minister about the Aboriginal and Torres Strait Islander Heritage Protection Bill and the proposals that are supposed to be forthcoming … We are particularly concerned about the impact of this legislation on Aboriginal heritage …

Senator Lundy went on to say that the new heritage regime would:

… have the effect of making Indigenous heritage a very poor cousin of what Labor believe will be an already very weakened heritage regime.

ATSIC shared Labor’s concerns. In a letter to the Minister for the Environment and Heritage in August 2003, the then ATSIC Commissioner Rodney Dillon stated:

For ATSIC to support this bill—

the Environment and Heritage Legislation Amendment Bill—

it would need to be satisfied that:

• the government will commit in Parliament to immediately invigorate the negotiations with the ATSIHP Bill;

• ensure that the Register of the National Estate becomes a part of the matters of national environmental significance under the EPBC Act; and

• the emergency listing provisions are strengthened …

Needless to say, the conditions were not met. The bill before us is not the reform that Senator Hill promised in 2003. It is not the reform ATSIC sought in 2003. It is not the reform that Justice Evatt recommended in her inquiry, which reported back in 1996. What we have before us instead is a very limited piece of legislation. It represents a lost opportunity.

We should not be surprised that the bill is a lost opportunity, because the Howard years have been characterised by a lack of respect for our heritage and a lack of due respect for Indigenous Australians. The Commonwealth Radioactive Waste Management Act 2005 demonstrates the government’s complacency towards our Indigenous heritage. Among other things, this draconian act overrides existing environment protection and Indigenous heritage laws in establishing a site for a nuclear waste dump in the Northern Territory. The government has made it very clear that Indigenous heritage protection will not get in the way of finding a site for a nuclear waste dump. The Howard government will always put its political interests ahead of the national interest.

If you want another example of the lack of respect for our heritage, look at the Howard government’s attitude towards Anzac Cove. In 2003, the Prime Minister promised to protect Anzac Cove forever. He promised to make it the first listing on the new National Heritage List. In fact, on 18 December 2003 the Prime Minister said:

It seems to me … entirely appropriate that the Anzac site at Gallipoli should represent the first nomination for inclusion on the National Heritage List. And, although it’s not on Australian territory, anyone who has visited the place will know that once you go there you feel it is as Australian as the piece of land on which your home is built.

We all know that, instead of protecting Anzac Cove, the Howard government requested roadworks which damaged the geography of the site which had remained with its integrity in place for some 90 years. If the Prime Minister had been serious about protecting our heritage, he would have made sure that there was a heritage management plan for Anzac Cove and made sure that heritage experts and archaeologists monitored all the roadworks.

The fact is that the National Heritage List has failed up to this point. It was much vaunted by the government. It was to be the linchpin of the government’s heritage regime, but it has failed to live up to the rhetoric. It certainly is not protecting our Indigenous heritage and it is not protecting our precious natural heritage. Simon Molesworth, the head of the National Trust, has described the National Heritage List as ‘abysmal’—a view Labor would share.

When I first raised concerns about the National Heritage List in March last year, only seven places were on the list—seven places in 15 months. In the last 18 months, some 26 places have been added to the National Heritage List. I am pleased that the pressure from the Australian Labor Party and from the community has increased the number of places on the list, but there is still only one site listed in the Northern Territory and South Australia. It is outrageous that only one of our 16 World Heritage sites is protected through the National Heritage List. Imagine a National Heritage List without the Great Barrier Reef or Kakadu. That is what we have right now. A National Heritage List without the Great Barrier Reef is like a rugby league hall of fame without Clive Churchill.

When the Secretary of the Department of the Environment and Heritage was asked in Senate estimates in May 2005 why our World Heritage sites were not on the National Heritage List, even though there was a six-month grace period under the act—a specific clause to allow this to happen smoothly—he said:

… there was clearly a misunderstanding in the department as to the act’s meaning. That, quite frankly, is a problem. Our understanding of the legislation is that the legislation was not what we thought it was.

That is from the Secretary of the Department of the Environment and Heritage. If he does not know what the legislation is about, how can it be expected that the public would know what the legislation is about? It is extremely disturbing that neither the Minister for the Environment and Heritage nor his department understands the main environmental and heritage legislation that they administer.

It is also disturbing when the Howard government misrepresents our cultural heritage. On Australia Day this year, Queensland’s historic Tree of Knowledge in Barcaldine was deservedly added to the National Heritage List. However, the Parliamentary Secretary to the Minister for the Environment and Heritage—who spoke for a few minutes on this bill in introducing it to the parliament—issued a press release about the adding of the Tree of Knowledge to the National Heritage List without mentioning the historic connection of the Tree of Knowledge with trade unions and the formation of the Australian Labor Party. This refusal to acknowledge the history of this nation was quite extraordinary behaviour from the government. Tragically, that tree in Barcaldine has been attacked.

Fran Bailey—It’s diseased, isn’t it?

Mr ALBANESE—The minister opposite, the Minister for Small Business and Tourism, said that the tree was diseased. No, the tree was poisoned and attacked in an act of exceptional vandalism to one of the sites which her government put on the National Heritage List. That may be a laugh for the government, but I think that it is a tragedy. It is particularly important for Australia’s history. It may well be that the tories opposite want to take us back to the industrial conditions which presided prior to 1891 when the Australian Labor Party was formed, but the fact is that this is an important part of our history—which is what this bill is about in acknowledging our heritage as a nation. For the government, who are quite happy to lecture people about history and people taking stuff out of history, to actually list the Tree of Knowledge at Barcaldine and not mention trade unions and the Australian Labor Party defies belief with regard to how petty they are prepared to be. We of course on this side of the House are very proud of our history and our associations with the labour movement.

The Howard government’s failure to respect our heritage extends to Indigenous heritage. Just look at Wave Hill. As the member for Kingsford Smith said recently, the events at Wave Hill, where Vincent Lingiari led a walk-off 40 years ago, changed the face of Australia. In the words of those great Australian singer-songwriters, Paul Kelly and Kev Carmody, ‘From little things big things grow’. I want to read into the Hansard a few of the lines that I think are so powerful from what can essentially be regarded as a poem but is certainly a great song. The song begins:

Gather round people let me tell you’re a story

An eight year long story of power and pride

British Lord Vestey and Vincent Lingiarri

Were opposite men on opposite sides

Vestey was fat with money and muscle

Beef was his business, broad was his door

Vincent was lean and spoke very little

He had no bank balance, hard dirt was his floor

From little things big things grow

From little things big things grow

Gurindji were working for nothing but rations

Where once they had gathered the wealth of the land

Daily the pressure got tighter and tighter

Gurindju decided they must make a stand

They picked up their swags and started off walking

At Wattie Creek they sat themselves down

Now it don’t sound like much but it sure got tongues talking

Back at the homestead and then in the town

From little things big things grow

From little things big things grow

Vestey man said I’ll double your wages

Seven quid a week you’ll have in your hand

Vincent said uhuh we’re not talking about wages

We’re sitting right here till we get our land

Vestey man roared and Vestey man thundered

You don’t stand the chance of a cinder in snow

Vince said if we fall others are rising

From little things big things grow

From little things big things grow

It concludes:

That was the story of Vincent Lingairri

But this is the story of something much more

How power and privilege can not move a people

Who know where they stand and stand in the law.

That is a very strong evocation of the events at Wave Hill that were absolutely instrumental in the historic campaign to introduce land rights laws in the Northern Territory and for this nation.

In July 2004 the Minister for the Environment and Heritage announced that the Wave Hill walk-off site would be given priority consideration for inclusion on the National Heritage List. More than two years later, we are still waiting. Protecting our Indigenous heritage, it would seem, is not a priority for the Howard government. Just look at the Burrup Peninsula. The Aboriginal rock art on the Burrup Peninsula is of national significance. It is believed to have some of the largest concentrations of rock art in the world and some rock art may be up to 10,000 years old. There is no excuse for the destruction of rock art. We must make sure that it is protected.

The Howard government’s approach shows a real complacency towards our heritage, which is not substantially improved by the bill before us. Labor welcomes and supports the intention of the intention that is in the bill to give greater certainty to international cultural loan arrangements. That certainly is important. The submission to the Senate Environment, Communications, Information Technology and the Arts References Committee inquiry into this bill from the Australian Museum outlines the argument clearly:

… these proposed changes to the legislation … would bring certainty to the process of acquiring Aboriginal cultural material for loan, exhibitions, research and Aboriginal community access from overseas cultural organization to Australia. It would place this material within a straightforward and secure legal framework …

Labor also supports the provisions to enable the Victorian government to administer their own Indigenous heritage protection regime. It is right that the government should seek to amend that anomaly.

We support these provisions in the bill but, as I noted earlier, this was a missed opportunity to further strengthen the Indigenous heritage protection available in this nation. Given that it is now 10 years since the Evatt inquiry reported, it is timely for the government to look again at a comprehensive review of Indigenous heritage protection, and I will be moving an amendment to that effect. Labor’s amendment also seeks to ensure that heritage protection declarations made by the minister under the act do not automatically cease after 10 years. Legitimate concerns were raised by the Central Land Council in their submission to the Senate inquiry regarding the impact of the sunset clause in this act. This amendment would ensure that existing declarations do not have to be remade.

Given existing circumstances, Labor will support the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005. Labor supports moves to give greater certainty to international cultural loan arrangements and of course believes the Victorian government should administer its own Aboriginal heritage protection regime. But we remind the government of the promise made by Senator Hill in 2003 that there would be a ‘new and better piece of legislation’. Given that it is now 10 years since the Evatt inquiry reported, and given the government’s complacent attitude towards Indigenous heritage protection, it really is time for a fresh start. A comprehensive review of Indigenous heritage protection would be a useful starting point. I therefore move:

That all words after “That” be omitted with a view to substituting the following words:

“while not declining to give the bill a second reading, the House:

(1) notes that on 20 August 2003, then Leader of the Government in the Senate Senator Robert Hill stated in relation to Indigenous heritage protection that the Government recognised the shortcomings in the existing system, that reform was long overdue and that the government was anxious to have a new and better piece of legislation put in place as quickly as possible;

(2) registers its concern that the Howard Government has failed to address the shortcomings in indigenous heritage protection;

(3) expresses its concern that the Howard Government has failed to act on the recommendations of the 1996 Evatt Inquiry into the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984;

(4) notes that it is now 10 years since the Evatt Inquiry reported, and calls for a comprehensive review of Indigenous heritage protection, and

(5) calls on the Government to support the inclusion of a sunset exemption provision in the bill”.

I ask for the support of the House.