Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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June, 1996
On 20 October 1995, the then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, announced the appointment of the Hon Elizabeth Evatt AC to carry out a comprehensive review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). In June 1996 Evatt presented a draft report to the current Minister, Senator Herron, and the final report in August 1996.
The need for such a review gradually had become clear as the States had sought greater co-operation between the Commonwealth and State/Territory governments in providing Indigenous heritage protection. The Council for Aboriginal Reconciliation had recommended that the Commonwealth establish national standards to ensure consistent and efficient processes in heritage protection legislation and the Aboriginal and Torres Strait Islander Commission in its social justice report to Government Recognition, Rights and Reform also recommended reform of the legislation. Moreover, two recent Federal Court decisions, though still subject to appeal at that stage, had overturned declarations made by the Minister, making clear that the Act needed amendment if it was to provide effective protection of Australia's Indigenous heritage. The Summary of the Report and the List of Recommendations are reproduced.
The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is to preserve and protect from injury or desecration areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
The Act was introduced in 1984 to enable the Commonwealth to protect significant Aboriginal areas and sites when State or Territory law does not provide effective protection. Aboriginals and Torres Strait Islanders can ask the Minister to make a declaration to protect an area or object which is under threat of injury or desecration. Declarations can be short term or long term; they are backed up by criminal sanctions. Since 1984 four long-term declarations have been made to protect areas. One remains in place. Three groups of objects have been protected by declarations.
The Act was introduced as a temporary measure, pending the introduction of national land rights legislation. The sunset clause was removed in 1986, when it appeared that land rights legislation would not be introduced. The Act has not been reviewed since 1986.
The procedures for making declarations under the Act are not spelled out in detail. The Act is intended to operate as a last resort, after the application of State and Territory laws. However the interaction between Commonwealth and State/Territory processes is not clearly established. This has led to delay and uncertainty in dealing with applications. For example, it is unclear how much consultation there should be with State and Territory governments about the level of protection available in the jurisdiction concerned, or how far those consultations should extend before an application under the Commonwealth Act proceeds to a determination. Emergency or interim protection has been granted by the Commonwealth Minister in very few situations, despite the long periods involved in consultations and in determining applications.
The Act establishes a reporting process as a guide to the exercise of the Minister's discretion, but it does not specify how the reporter should ensure that interested parties are treated fairly. This has left the Minister's discretion open to legal challenges. Two declarations have been overturned by the Federal Court and other decisions of the Minister have also been set aside. The most recent cases of this kind involve Hindmarsh Island (Kumarangk) and the Broome Crocodile Farm. The procedures laid down for the Minister and the section 10 reporter by those cases have made the process burdensome and taken it away from the relatively simple procedures which were envisaged when the Act was introduced. They also expose Aboriginal people seeking the protection of the Act to intensive scrutiny of their religious beliefs.
The main threat to significant Aboriginal areas comes from construction and development of all kinds. State and Territory governments and developers are concerned about the delays and costs caused by the fact that intervention under the Commonwealth Act often comes after their planning processes have been completed and a project has been approved. Developers see this as yet another obstacle to be negotiated to get their project under way.
Aboriginal people consider that the Act has not protected their heritage. Few declarations have been made and only one is now in force. They say that the administration of the Act has given too much deference to ineffective State and Territory processes which do not recognise their role in the identification, management and protection of heritage. In some situations negotiations by the Commonwealth with the State/Territory government have resulted in arrangements being made without adequate consultation with Aboriginal people. In addition, the Act does not recognise that there are Aboriginal restrictions on information which play an important role in the protection and maintenance of their cultural heritage. The Act does not protect confidential information or respect Aboriginal spirituality and beliefs which require that confidentiality to be maintained. Its failure to deal with all aspects of heritage, including intellectual property was another subject of concern, though the Review has been unable to deal with this issue in detail (see Chapter 3). Nor does the Act adequately recognise or provide for the involvement of Aboriginal people in negotiation and decision-making about their cultural heritage. Aboriginal people want the Act to be maintained and strengthened.
The Review received nearly 70 submissions and carried out wide consultations. Submissions covered a broad spectrum of views, from those who thought the Commonwealth should leave Aboriginal heritage protection entirely to the States and Territories, to those who thought the Commonwealth should take over the field completely. Others wanted the role of Aboriginal customary law to be fully recognised. Most submissions either supported or recognised the need to retain the basic principles of the Act as an effective safety net. They want it to fulfil its purposes of protecting Aboriginal heritage in a practical and effective manner. That is the position taken by the Review.
The policy goals of the Review have been these:
* To respect and support the living culture, traditions and beliefs of Aboriginal people and to recognise their role and interest in the protection and control of their cultural heritage.
* To retain the basic principles of the Act as an Act of last resort.
* To ensure that the Act can fulfil its role as a measure of last resort by encouraging States and Territories to adopt minimum standards for the protection of Aboriginal cultural heritage as part of their primary protection regimes.
* To encourage greater co-operation between the Commonwealth and the States and Territories, and to avoid duplication and overlap with State and Territory jurisdictions by recognition and accreditation of their processes.
* To provide access to an effective process for the protection of areas and objects significant to Aboriginal people.
* To provide a process which operates in a consistent manner, according to clear procedures, in order to avoid unnecessary duplication, delays and costs.
* To ensure that Aboriginal people participate in decisions about the protection of their significant sites and that their wishes are taken fully into account.
* To ensure that heritage protection laws benefit all Aboriginal people, whether or not they live in traditional life style, whether they are urban, rural or remote. The objective should be to protect living culture/ tradition as Aboriginal people see it now. [1]
* To resolve some of the difficulties of developers by better procedures which ensure early consideration of heritage issues in the planning process, effective consultation with Aboriginal people and genuine mediation or other processes whose purpose is to avoid injury to or desecration of sites.
The recommendations in this report will help to restore the original intention of the Commonwealth Act 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. The recommendations would help to overcome many of the current frustrations and could contribute in a positive way to the goals of Aboriginal reconciliation.
The Act applies to any area or object anywhere in Australia which is of significance to Aboriginal people, whether or not they live in traditional life style, whether they are urban, rural or remote. These principles should be retained. The protection of cultural heritage should continue to recognise the changing nature of culture, and aim to protect living culture/ tradition as Aboriginal people see it now. (Chapter 6)
The Act should recognise and respect Aboriginal customary law restrictions on holding, disclosing and using information about significant areas and objects. It should minimise the amount of information that Aboriginal people need to give about significant areas or objects to secure their protection. Standards are recommended for dealing with restricted information at each stage of the process. The wishes of Aboriginal people concerning the protection of a significant area or object should not be overridden unless there have been adequate consultations and inquiries and there is a compelling public interest in proceeding. (Chapters 4, 6 and 7)
The procedures under the Commonwealth Act should ensure interim protection for areas which are threatened, basic principles of natural justice for persons affected and effective time lines. An outline of these procedures is set out below. The recommended procedures follow the existing statutory model, by keeping an informal inquiry process leading to the exercise of the Minister's discretion. This keeps the process relatively simple and inexpensive. However, there must be clear statutory guidelines for that process, setting out a clear procedural path with set time lines. Persons interested would have a proper opportunity to make representations on the issues affecting them. (Chapter 10)
The Act should provide for a specific voluntary mediation procedure which is offered to parties before a reporting procedure leading to declaration is considered. There should be appropriate time limits. Significant areas should be protected from continuing injury or desecration while mediation takes place. The Act should provide for registration of agreements reached during mediation or negotiations. Registration would give the agreement the force of a contract. (Chapter 9)
A principal recommendation is to separate the question whether an area is a significant area from the question whether it should be protected from a proposed use of land which poses a threat. The reporter will form an opinion about significance in the reporting process, based on information given by Aboriginal people about its significance to them. The reporter should be concerned with the existence of confidential information supporting the claim of significance rather than with its details. Confidential information given by Aboriginal people would be protected from disclosure contrary to Aboriginal tradition. Third party intervention in the question of significance would be minimised. This would bring the Commonwealth in line with States in assessing significance. It would help to reduce the avenues for challenging the Minister's decision, and increase recognition of Aboriginal customs, traditions and beliefs. (Chapter 8)
Protection should not attach as of right to every site falling within the definition of the Act. The decision whether to protect an area would remain, as now, a matter for the Minister's discretion. In exercising that discretion, which has a `political' quality, the Minister should weigh the competing interests of Aboriginal heritage protection with the interests of those affected and the public interest in the issues. The Minister would rely on the opinion of the reporter about the question of significance. The wishes of Aboriginal people would be taken into account. (Chapter 10)
A new permanent independent agency should be established to administer the Act in all matters leading to the exercise of discretion by the Minister. The agency would relieve the Minister of procedural responsibilities, including those related to interim protection and the nomination of mediators and reporters. It would act in accordance with established principles and procedures, away from the political process. It should be a small expert agency, with a panel of mediators and reporters available to be called upon when needed. Its members should include a high proportion of Aboriginal people. The agency should be supported by an Aboriginal heritage advisory committee, composed of Aboriginal people, to advise on such matters as identifying Aboriginal people to consult about areas of significance. The cost and resource implications of the recommendation are considered. (Chapter 11)
The Commonwealth should work for greater co-operation with States and Territories, and actively encourage them to revise and update their Aboriginal heritage protection laws in accordance with agreed standards, so that they can fulfil their primary role in protecting Aboriginal cultural heritage more effectively. Duplication of functions and improved protection could be achieved if the Commonwealth were to recognise and accredit State processes meeting set standards. For example, if consideration of heritage issues were properly incorporated into the State planning process, with an independent means of determining the existence of significant areas or objects in consultation with Aboriginal people, the Commonwealth process could avoid revisiting the question of significance. If an application were made for protection under the Commonwealth Act, the question for the Minister would be limited to the balancing of competing interests in the exercise of an essentially political discretion. That is the proper role for a last resort mechanism. (Chapter 5)
The Commonwealth should support the development of national minimum standards for Aboriginal heritage protection, building on work that has already begun at inter-governmental level. These standards should be reflected so far as possible in Commonwealth law (given its role is that of last resort) and form the basis for accreditation agreements. An important element of minimum standards would be effective procedures to ensure that relevant Aboriginal people are entitled to be consulted in regard to development proposals which may pose a threat to significant sites, to participate effectively in the decision-making process through mediation or other means and to have their wishes taken fully into account. Mediation should be encouraged. (Chapter 5)
The Commonwealth should develop a national policy for all aspects of indigenous heritage protection. Such policy should form the basis of standards for cultural heritage protection, and for programmes at all levels of government which affect Aboriginal heritage. An Aboriginal-controlled body such as an Aboriginal Cultural Heritage Advisory Council should have responsibility to oversee the implementation of this proposal, and should also have a role in monitoring Aboriginal heritage protection nationally and in co-ordinating laws and programmes that have an impact on Aboriginal heritage. (Chapter 3)
The primary goals of cultural heritage protection laws and policies should extend beyond the provision of effective legal protection of areas, sites and objects. They should ensure that programmes for the management of cultural heritage provide for Aboriginal and Torres Strait Islander people to have, to the greatest extent possible, effective control over the protection, preservation and promotion of places, areas and objects which are culturally significant to them. Programmes to advance these aims would include restoration and preservation programmes for significant sites, training and employing indigenous people as inspectors and as rangers and custodians of national parks, and education of Aboriginal people and of the wider community about Aboriginal cultural heritage. (Chapter 3)
(For further details see Chapters 10 and 11)
The Review considers that, failing an agreed resolution of an application for long-term protection under the Act, a modified version of the existing process should be followed. The essential nature of the process would be retained: it would be a relatively informal process, involving both an assessment of significance and a decision as to whether and, if so, on what terms to protect or preserve the relevant area by reference to competing interests.
The agency recommended in Chapter 11 to administer the Act up to the point where an exercise of ministerial discretion is called for would make interim protection declarations. It would also determine applications where agreements resolving applications are made and found to be consistent with the purposes of the Act. The following process is broadly consistent with State and Territory best practice and the direction of inter-governmental reform, and would permit the `last resort' role of the Commonwealth to mesh with that of States and Territories to produce maximum uniformity.
The proposed process should include the following broad features:
Applications
* Applications should remain easy to make, either orally or in writing.
* The agency should maintain a written record of applications and information provided in support of them.
Procedural fairness
* The legislation should specify the information required to be provided in support of an application (specified information requirements).
* Procedural fairness requirements would be satisfied if the agency notifies interested persons about specified information and they have a fair opportunity to comment on that information before a decision is made.
* The agency may provide for other procedures solely at its discretion.
* The agency or Minister would not have to provide details or copies of information provided in support of an application unless express provision is made for this.
In the context of long-term declarations:
* Interested persons will have an opportunity to comment on the information provided to them by making written representations to the agency through a reporting process.
* The legislation should specify the information which must be included in the notice inviting representations from interested members of the public who should make written representations through the same reporting process.
* Where there are changes to the information provided in support of an application during a reporting process, the agency must inform interested persons and issue a new public notice.
Effective protection
* `Effective protection' under State/Territory laws should be defined to mean actual protection.
Interim protection available
* Interim protection should be available pending determination of an application for long-term protection: there should be a lower standard of satisfaction in relation to the area and the threat than is required for long-term declarations.
Reporting process
* The agency must start a reporting process to determine valid applications for long-term protection unless the matter is either resolved beforehand to the satisfaction of the applicants or:
- the agency dismisses the application as frivolous or vexatious; or
- the agency refuses an application on the basis that the specified
information requirements or notice requirements
have not been met and the
applicants have failed to provide further information reasonably requested.
* The agency should have discretion to delay the reporting process if there is another process under way that holds out a prospect of removing the threat or resolving the application to the satisfaction of the applicants. However, a reporting process should be started promptly once there is a `serious and immediate' threat.
* The agency must form an opinion as to whether the area or object in question is a `significant Aboriginal area' within the meaning of the Act. It must report to the Minister on that issue and also on the representations received from interested persons who may be affected by a declaration and other members of the public.
* The opinion of the agency on the issue of whether the area or object in question is a `significant Aboriginal' area or object will bind the Minister.
* The reporter must provide a fair summary of the representations in the report, but should not recommend whether or not the Minister should make the declaration sought.
* The Minister should be entitled to base his or her decision on the report without having to consider the representations made in response to a public notice, although these should continue to be provided with the report.
Time limits
* All applications for protection must be determined as soon as is practicable: time limits for decisions on emergency and temporary protection and for the reporting process (once commenced) should be specified in the legislation.
Reasons for decisions
* The Minister should, after making a decision, provide to all interested persons a statement of reasons: the statement should satisfy the requirements of s. 13 of the Administrative Decisions (Judicial Review) Act 1977 and should be tabled in Parliament. Reasons for decisions relating to emergency and interim protection should remain available on request under the AD(JR) Act.
3.1 A national policy should be adopted as the basis for laws and programmes relating to Aboriginal cultural heritage at all levels of government. That policy should cover all aspects of Aboriginal cultural heritage, and should include such matters as positive support for Aboriginal culture and heritage, education of non-Aboriginal people, Aboriginal control of cultural heritage, recognition of Aboriginal customary law and tradition, and effective legal protection of cultural heritage.
3.2 There should be a body with specific responsibility for monitoring Aboriginal cultural heritage protection nationally, to coordinate laws and programs that have an impact on Aboriginal heritage and to develop and promote the national heritage protection policy at all levels of government. It should consist entirely or largely of Aboriginal people, or act on the advice of an Aboriginal-controlled body.
3.3 The body responsible for coordinating Aboriginal heritage protection nationally (see recommendation 3.2) should investigate whether Aboriginal heritage can be assessed on a similar basis under all Commonwealth legislation (whether general or specific) under which it is currently assessed with a view to working out how duplication in significance assessment can be eliminated.
State, Territory and Commonwealth heritage protection laws should meet standards for protecting restricted information:
4.1 Heritage protection laws should respect Aboriginal customary law restrictions on the disclosure and use of information about Aboriginal heritage.
4.2 Procedures under heritage protection laws should minimise the amount of information Aboriginal people need to give about significant areas or sites to ensure protection and avoid injury or desecration.
4.3 The laws and related procedures must ensure that customary law restrictions on information received for the purpose of administering heritage protection laws or received in related legal proceedings are respected and observed.
4.4 Heritage protection legislation should specifically provide that a claim for public interest immunity may be made for restricted information.
5.1 A goal of Commonwealth heritage protection law and policy should be the reform of State and Territory laws. This goal should be pursued by legal and political means.
5.2 The Commonwealth Government should support and encourage the process of developing, in consultation with State and Territory governments, the Aboriginal community, and other interested parties, agreed minimum standards as the basis for uniform or model laws on Aboriginal cultural heritage protection, for adoption by the States and Territories and by the Commonwealth, where relevant. Resources should be allocated to support this process.
5.3 The Commonwealth should accredit for the purposes of the Act determinations and procedures under State /Territory laws which comply with minimum standards. It should provide, where appropriate, for the referral of matters to State/Territory agencies or bodies which meet minimum standards.
5.4 The Commonwealth should accredit or recognise for the purposes of the Act decisions concerning the significance of a site by State/Territory Aboriginal cultural heritage bodies that meet the required standards and which apply definitions comparable with the Commonwealth definition.
6.1 Minimum standards for State and Territory Aboriginal cultural heritage laws should include a definition of Aboriginal cultural heritage which is at least as broad as that of the Commonwealth law. That definition should extend to areas and objects of significance to Aboriginal people in accordance with tradition, including traditions which have evolved from past traditions. It should also extend expressly to historic and archaeological sites.
6.2 A minium standard for State and Territory heritage protection legislation is that it provide automatic/blanket protection to areas and sites falling within the definitions outlined above, through appropriate and effective criminal sanctions.
6.3 Minimum standards for State and Territory legislation should include the establishment of Aboriginal cultural heritage bodies with responsibility for site evaluation and for the administration of the legislation. They should:
* be independent;
* be controlled by Aboriginal members representative of Aboriginal communities;
* have gender balance;
* have adequate staffing, expertise and resources; and have access to independent advisers eg, anthropologists, archaeologists.
6.4 Minimum standards for State and Territory laws should provide for assessments relating to the significance of sites and areas to be separated from decisions concerning land use. The former should be the responsibility of Aboriginal heritage bodies; the latter the responsibility of the executive.
6.5 Minimum standards for State and Territory planning and development processes should include these elements:
* integration of Aboriginal cultural heritage issues with the planning and development process from the earliest stage;
* an effective consultation/negotiation process for reaching agreement between developers and the Aboriginal community facilitated by a responsible Aboriginal heritage body;
* the objective of negotiation should be to reach agreement on work clearance or site protection; legislative recognition of agreements between land users/developers and relevant Aboriginal groups;
* minimum disclosure of confidential or gender specific information through the use of a work area clearance approach;
* separate consultation of Aboriginal women;
* an independent Aboriginal heritage body should determine whether a site is significant and should make recommendations concerning its protection;
* decisions overriding protection should have regard to the wishes of Aboriginal people, should be supported by compelling reasons of public interest and be subject to accountability;
* procedures should be carried out expeditiously and within reasonable time frames.
6.6 The Commonwealth Government should actively encourage the adoption of the Guidelines for the Protection, Management and Use of Aboriginal and Torres Strait Islander Cultural Heritage Places, developed by Department of Communication and the Arts (Cth) by all relevant Commonwealth, State and Territory agencies and by local authorities involved in land management and decisions concerning cultural heritage.
6.7 Minimum standards for the States and Territories should include confidentiality provisions to protect information provided in the course of administering State and Territory heritage protection laws from disclosure contrary to Aboriginal tradition, (without specific authorisation).
Such laws should prohibit any requirement to provide information where to do so would be contrary to Aboriginal tradition.
Such laws should provide for the protection of information which must not, according to Aboriginal tradition, be disclosed to persons of one particular sex.
6.8 Minimum standards should include provisions to ensure the right of access of Aboriginal people to significant sites on Crown land for the purposes of their protection and preservation and for traditional purposes.
6.9 Minimum standards for State and Territory laws should include: criminal sanctions with adequate penalties, and limited defences; provision to ensure that criminal sanctions are effectively enforced; provision to enable Aboriginal people to act as inspectors, to monitor compliance and to launch prosecutions.
7.1 (a) The Commonwealth Act should be amended to include a provision which protects information provided for the purposes of the Act from unauthorised disclosure contrary to customary law restrictions. The Act should require the restrictions on information to which he or she seeks access.
7.1 (b) Section 20 (1) of the Act should be amended to ensure that it does not operate to interfere with the cultural and spiritual beliefs of Aboriginal people.
7.2 There should be protocols for s. 10 reporters and mediators covering how they should receive and handle information subject to customary law restrictions.
7.3 The Freedom of Information Act 1982 (Cth) should be amended to provide that information about Aboriginal heritage provided for the purposes of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and that is subject to customary law restrictions should be exempt from disclosure.
7.4 The protection offered by s. 27 of the Act should be extended to any court proceedings in relation to the Act or in which access is sought to information collected or provided for the purposes of the Act. The Act should also require the Federal Court in conducting proceedings in relation to the Act to take account of the cultural and customary concerns of Aboriginal people and Torres Strait Islanders.
7.5 The circumstances in which a court can require an Aboriginal person or an agency holding restricted information about Aboriginal heritage to produce that information about Aboriginal information should be limited by the provision of a claim to a public interest immunity. The Commonwealth provisions should extend to proceedings under State and Territory law in relation to matters arising under the Commonwealth Act.
7.6 Section 11 should be amended to clarify that a declaration may include provisions concerning access to a site for the purposes of inspection, protection and preservation of an area and for traditional purposes.
Repeal s. 24 (3)
7.7 That subs. 24 (3) be repealed.
7.8 Penalties under the Commonwealth Act should be reviewed to bring them into line with current values.
7.9 The agency recommended by the Review to administer the Commonwealth Act should have power to initiate prosecutions for breach of declarations under the Act.
8.1 The question whether an area or site should be considered an area or site of particular significance according to Aboriginal tradition should be regarded as a subjective issue to be determined on the basis of an assessment of the degree of intensity of belief and feeling of Aboriginal people about that area or site and its significance.
8.2 Where an assessment has been made of substantially the same issue [concerning the particular significance of an area] in the State/Territory process, it should be possible to rely on that assessment in the Commonwealth process.
8.3 If a State or Territory Aboriginal Cultural Heritage Committee is constituted according to minimum standards and has the function of assessing the significance of an area according to Aboriginal tradition, there should be an accreditation process to allow that issue to be referred by the Commonwealth to consideration.
8.4 If the States and Territories do not consider establishing appropriate bodies to deal with heritage issues, the Commonwealth should establish an appropriately constituted Aboriginal Cultural Heritage Committee, to ensure that Aboriginal people are given a major responsibility in establishing the significance of a site.
8.5 The issue of significance should be considered separately from the question of site protection.
8.6 Where an assessment of significance of an area or site has to be made, it should be based on information provided by and consultations with the relevant Aboriginal community, communities or individuals and on any anthropological reports or information provided with their consent.
8.7 The opinion or conclusions of the agency recommended in Chapter 11 as to the significance of a site should be binding on the Minister.
8.8 (a) The agency recommended in Chapter 11 should develop, with the advice of the recommended advisory council, procedures to be used, if necessary, to deal with situations where there are differences of opinion between Aboriginal people as to who has responsibility for an area.
8.8 (b) The agency recommended in Chapter 11 should report on whether there is a group to whom the area is an area of particular significance, and the degree and intensity of the belief about that place. If there are differing opinions among Aboriginal people on that question, these opinions should be included in the agency's report.
8.9 The assessment of the way in which the threatened action is inconsistent with Aboriginal tradition or adversely affects the significance of the area in accordance with tradition should be dealt with in the same manner as the question of significance.
9.1 The Act should provide for a specific mediation procedure, which should be offered to parties before a reporting procedure leading to a declaration is considered.
9.2 Mediation under the Act should be voluntary. Applicants should have the option of asking for a mediator to be appointed when they make their initial application.
9.3 A mediator should be nominated only with the agreement of the parties. A mediator should not be the reporter unless the parties accept this.
9.4 The Act should allow flexibility in mediation and negotiation procedures and those procedures should be capable of adaptation to minimise disclosure of restricted information, and in particular, gender restricted information.
9.5 Time frames should ensure that the parties have adequate time to prepare a negotiating position but not so as to allow the procedure to result in undue delay in resolving the issue.
9.6 Significant areas should be protected from continuing injury or desecration while mediation takes place. The protection should last until mediation is successful or the time limit is reached, though a party may choose to end the process at any time.
9.7 The Act should provide for the registration of agreements reached under its negotiation or mediation processes. To be registered, the agreement must be consistent with the purposes of the Act. The effect of registration will be to give the agreement the force of a contract. Breach of the agreement would give rise to civil liabilities.
9.8 State and Territory mediation procedures that meet minimum standards should be accredited and recognised by the Commonwealth heritage protection procedure. The Commonwealth mediation process should be available if there is no accredited State or Territory process.
10.1 A modified version of the existing, relatively informal process whereby the Minister ultimately determines whether and on what terms Aboriginal heritage should be protected should be retained in preference to a more formal quasi-judicial process.
10.2 References in the Act to effective protection under State or Territory law should be consistent in language and policy.
10.3 The Act should specify that effective protection of an area or object under the law of a State or Territory means actual and legal protection of indefinite duration.
10.4 The Act should define `threat of injury or desecration' to include active consideration by the relevant government of removal of what might otherwise constitute effective protection under the law of a State or Territory.
10.5 The agency should seek up to date information when it is considering refusing to make a declaration under s. 9 on the basis that there is no `serious and immediate threat'.
10.6 The Act should require the Minister to consult interested persons before exercising any power to or revoke a declaration.
10.7 The capacity for authorised officers to make emergency declarations under s. 18 should be retained.
10.8 Emergency declarations under s. 18 should be able to be made immediately, if necessary, where the authorised officer is satisfied as to significance and threat and without reference to whether the agency is considering or may be able to make another form of declaration.
10.9 Where an authorised officer is asked to make, or does make, an emergency declaration, he or she should be obliged to inform the agency of that fact as soon as possible.
10.10 Emergency declarations under s. 18 should be able to be made for a period of up to four days (96 hours).
10.11 The standard of satisfaction as to significance and threat applying to decision-makers for the purposes of s. 18 and s. 9 declarations should be lower than that currently applying in relation to s. 10 (and other) declarations. It should be based on the decision-maker having `reasonable grounds to believe' that an area or object is significant and that there is a `serious and immediate' threat to it.
10.12 The Act should provide that the purpose of short-term (30-day) declarations under s. 9 where an application has also been made for a s. 10 declaration in relation to the same area (interim protection) is to maintain the status quo in relation to the area pending determination of the s. 10 application.
10.13 Section 9 declarations in the form of interim protection should be capable of extension for periods of up to 60 days at a time pending determination of the s. 10 application.
10.14 The agency should be required to determine an application for protection of an area under s. 9 as soon as is practicable and in any agent, within 28 days.
10.15 The agency should be required to report to the Minister as soon as is practicable after instigating a reporting process under s. 10. A notional outer time limit of six months may be appropriate, but this should not be set in legislation. The Minister should be required to determine an application under s. 10 as soon as is practicable after receiving a report under that section.
10.16 The agency should be obliged to instigate a reporting process in response to an application under s. 10 unless there is a specific justification for postponing such action.
10.17 The agency should be obliged to defer instigating a reporting process in response to an application under s. 10 where there is no immediate threat to the area in question and where there is a prospect that other processes, whether under State or Territory laws or under other Commonwealth laws, will resolve an application within a reasonable time. Once a threat becomes serious and immediate, the agency should instigate a reporting process promptly.
10.18 The agency should be obliged to prepare a report to assist the Minister to determine each valid application for protection under s. 10 unless the application is determined beforehand in one of the ways specifically provided for in the Act.
10.19 The agency should have power to decline an application that is frivolous or vexatious.
10.20 The agency should formally decline an application that is resolved to the satisfaction of the applicants and withdrawn.
10.21 The agency should have power to dismiss an application where it considers that the information provided to it by applicants would not satisfy the legal requirements specified in the Act and the applicants fail to respond to reasonable requests by the agency to provide additional information.
10.22 Delay in raising heritage interests, provided that there are mechanisms in place that respect those interests, should be a factor in the exercise of discretion whether to make a declaration by the agency or Minister (as the case may be).
10.23 Applications should be able to be made easily. A valid application is one that is `made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration.'
10.24 The agency should be required to maintain a register of applications in written form: where applications are made orally, the agency should record what it is told and seek acknowledgment from the applicants of its record of the application.
10.25 Where a new basis of significance or other new information is provided to the agency in relation to an area for which there is already an application registered, the agency should clarify whether the new information is part of the previous application or is provided in support of a new application, and deal with it accordingly.
10.26 The agency should be required to take reasonable steps to identify persons with an interest (in procedural fairness terms) in whether a declaration should be made before deciding whether to make a declaration under s. 9 or providing a report to the Minister under s. 10.
10.27 The Act should require the agency to provide interested persons with an opportunity to make representations in response to specified notification requirements before deciding whether to make a declaration under s. 9 or providing a report to the Minister under s. 10.
10.28 The Act should reflect the principle that, unless expressly provided by the Act, the opportunity for interested persons to make representations in response to specified notification requirements is the only means by which they may comment on whether a declaration should be made. Any further processes should be entirely within the discretion of the agency.
10.29 The Act should reflect the principle that, unless expressly provided by the Act, there is no obligation (and none shall be implied) on the agency or the Minister to provide interested persons, or members of the public who make representations in response to a notice under s. 10, with information provided in support of an application under the Act.
10.30 The Act should continue to require publication of a notice so as to allow members of the public to provide written representations as to whether a declaration under s. 10 should be made.
10.31 In the context of applications for protection under s. 10, the opportunity for interested persons to make representations should be provided at the same time and in the same form as the reporting process (in writing).
10.32 The Act should define the specified notification requirements as follows:
* the identity of the applicants;
* an identification of the area sought to be protected;
* a description, in general terms, of the significance of the area to the applicants;
* a description of the threatening activity and a description, in general terms, of the injury or desecration that would result if that activity were to occur; and
* a description of the form of protection and preservation sought.
10.33 The Act should specify that the public notice contain the following information:
* the identity of the applicants (which might be in general terms only, in which case the notice should indicate a means of obtaining more detailed information in this regard);
* a reasonable identification of the area for which protection is sought;
* a description, in general terms, of the significance of the area to the applicants;
* a description of the threatening activity and a description, in general terms, of the injury or desecration that would result if that activity were to occur or a description of the form of protection and preservation sought (noting the sorts of orders that might be made);
* the matters required to be dealt with in the report, being a list of the statutory requirements (this should suffice, since the above information should give enough case-specific detail to enable interested people to make meaningful submissions); and
* an invitation to provide written representations within 30 days after the date of publication of the notice and an address where representations can be sent.
10.34 In order to avoid any uncertainty, the Act should provide that States and Territories are interested persons for the purpose of the obligation to notify interested persons.
10.35 The Act should provide that failure to comply with the obligation to provide interested persons with an opportunity to provide representations in response to specified notification requirements does not, of itself, result in a declaration being invalid.
10.36 The Act should provide for particular Aboriginal community groups in each State/Territory to be prescribed for the purpose of the obligation to notify interested persons.
10.37 The agency should be obliged to provide interested persons with an opportunity to make representations in response to new specified notification requirements where a new basis of significance or other new information is provided to the agency beyond the scope of the specified notification requirements already provided. In these circumstances, the Act should also provide a capacity for a new public notice to be issued.
10.38 On receiving an application for protection under s. 10, the agency should consult with the relevant State or Territory agency to ascertain whether there is effective protection of the area in question and to seek any further comments the State or Territory might wish to make in relation to the application. This should be done by requesting a report within a specified period.
10.39 On receiving an application, the agency should investigate the prospects of resolving the application without the need for a reporting process, through agreement between the applicants and interested persons whose agreement the agency considers would be required in order to resolve the application (such as those whose activities pose the threat to the area in question).
10.40 The agency should inform the applicants and other interested persons of its decision to instigate a reporting process and the point at which that decision was taken.
10.41 The agency should consider the possibility of adopting other procedures to assist the decision-making process where it considers that to be appropriate. Other procedures that might be followed include: providing access to representations (subject to any confidentiality claimed) generally or as between interested persons or otherwise and providing access to a draft report to interested persons for comment.
10.42 The Act should make it clear that written records of information provided orally to the agency do not constitute representations in writing to be attached to the report.
10.43 The Act should make it clear that the role of the reporter in relation to written representations is to summarise them as they are relevant to the criteria upon which the report is to be based: the reporter should have no role in recommending or suggesting whether a declaration should be made.
10.44 The Minister should be entitled to rely on the summary of written representations prepared by the agency without being required to consider them. The written representations should continue to be forwarded with the report.
10.45 All existing avenues of judicial review should remain available in relation to decisions made under the Act.
10.46 The Act should include a provision drawing attention to the fact that reasons for decisions under the Act may be sought under s. 13 of the AD(JR)Act.
10.47 Where the Minister is called upon to determine an application by exercising his or her discretion whether to make a declaration, reasons sufficient to comply with s. 13 of the AD(JR) Act should be provided to the applicants and other interested persons and tabled in Parliament.
10.48 Responsibility for the receipt and processing of applications for protection under the Act should be removed from the Minister's office so that it is clear that the Ombudsman may investigate and report on issues of administration arising in relation to those functions.
11.1 The decision whether or not to make a declaration to protect a site or object from injury or desecration should remain as a discretion of the Minister.
11.2 A new permanent independent agency `The Aboriginal Cultural Heritage Agency' should be established to administer the Act in all matters leading to the exercise of discretion by the Minister.
11.3 ATSIC's current functions under the Act should be vested in the new agency.
11.4 The new agency should be comprised of a full-time Principal Member; a number of part-time Members; and a small administrative staff.
11.5 The qualities necessary for appointment as a Member should include knowledge and understanding of Aboriginal cultural heritage issues and/or of Aboriginal customs and traditions and/or of the archaeological or anthropological significance of areas and objects in accordance with Aboriginal tradition.
11.6 The membership of the agency should include a majority of Aboriginal and Torres Strait Islander people, and should have gender balance. Anthropologists, archaeologists and others with appropriate experience and expertise should be considered for appointment.
11.7 Members of existing tribunals should be considered as eligible for appointment as members of the agency.
11.8 The Principal Member should have legal experience.
11.9 Members of the agency, other than the Principal Member, would be remunerated on a fixed scale.
11.10 Members of the agency should be protected against liability for acts done in good faith in the same way as members of tribunals.
11.11 The mediation and reporting processes under the Act should be carried out by the Members of the agency.
11.12 The functions of the agency should include:
* registration and preliminary inquiries;
* acceptance or rejection of an application;
* making emergency and temporary declarations;
* inquiring into State/Territory protection and procedures; and
* conducting mediation and reporting processes.
11.13 Members who have conducted a mediation should not take part in the reporting process, unless the interested parties agree to this.
11.14 A wide range of Aboriginal people including custodians, inspectors, wardens, agency members and others should be appointed as authorised officers for the purposes of s. 18.
11.15 The agency should issue guidelines concerning procedures for the assistance of applicants and interested persons.
11.16 An Aboriginal Cultural Heritage Advisory Council should be established to advise the proposed agency and the Minister on issues arising under the Act, and in particular on the procedures to be followed and the persons to be consulted in making assessments for the purposes of the Act. This council should be constituted by Aboriginal people, in such a way as to strengthen links with local Aboriginal communities which have responsibility for heritage issues.
11.17 The agency recommended to take responsibility for the administration of the Act should deal with applications relating to objects and determine the issue of significance before referring the matter for the Minister's decision whether to make a declaration.
12.1 The Commonwealth should actively encourage the States and Territories to enact uniform national laws to prevent [regulate?] the sale and exhibition of significant Aboriginal objects. The wishes of Aboriginal people should be taken into account as the principal factor in deciding whether to consent to sale. Failing the introduction of uniform laws, the Commonwealth should enact legislation to apply where there is no relevant State or Territory law.
12.2 The Act should provide for the recognition of agreements about the protection of significant Aboriginal objects which are or were under threat, and covering their preservation, maintenance, exhibition, sale or use, and the rights, needs and wishes of the owner and of the Aboriginal and general communities.
12.3 The definition of objects which can be protected under the Act should be extended to include objects which are of significance to Aboriginal people because they record, describe or portray an aspect of Aboriginal tradition.
12.4 To fulfil its overall national responsibility for Aboriginal cultural heritage, and to underline the national importance of protecting that heritage, the Commonwealth Government should include the repatriation of Aboriginal cultural material on the agenda of its bilateral discussions with relevant countries.
[1] National Aboriginal and Torres Strait Islander Survey: Australia's Indigenous Youth, 1996, ABS. This study shows that 83 per cent of young Aboriginal people believe in the importance of tribal elders. These young people have strong links to their culture, language and ancestral homelands 70 per cent recognise their homeland, Sydney Morning Herald, 23 February 1996.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/38.html