1996-97-98

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by Authority of the Minister for Aboriginal and

Torres Strait Islander Affairs, Senator the Hon John Herron)

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

OUTLINE

 

The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 replaces the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (‘the 1984 Act’).  As in the 1984 Act, the Bill provides a discretion for the Minister to protect areas and objects of particular significance to Aboriginal peoples and Torres Strait Islanders.  The Bill reforms the processes for dealing with applications for protection under the Act.  It also seeks to engage the States and Territories in protecting indigenous heritage.

 

The key features of the Bill are that it:

 

·      establishes a Director of Indigenous Heritage Protection (‘the Director’) to assist the Minister in the administration of the Bill;

 

·      encourages applications to be resolved by negotiation and/or mediation facilitated by the Director;

 

·      provides for the separation of assessments of significance (undertaken by the Director) from the Minister’s decision about whether or not to grant protection;

 

·      requires that significance be assessed according to indigenous traditions, observances, customs and beliefs and that primacy be given to the views of indigenous people in making assessments of significance;

 

·      provides protection for culturally sensitive information disclosed in the course of administering the Bill;

 

·      provides for accreditation by the Commonwealth Minister of State/Territory heritage protection regimes which meet certain minimum standards; and

 

·      requires applicants to exhaust State/Territory processes before seeking protection under the Commonwealth Act and, where State/Territory regimes are accredited, limits applications to cases where protection may be in the national interest.

 

FINANCIAL IMPACT

 

There will be a minor financial impact arising from the establishment of a new statutory office of Director of Indigenous Heritage Protection.  Resources currently devoted to administration of the 1984 Act will be available to administer the scheme established under the Bill. 

 

REGULATION IMPACT ON BUSINESS

 

Medium Impact

 

·      Applications for protection may relate to any significant area of land or significant object in Australia regardless of ownership and the Minister may make long-term protection orders which can include conditions which preclude business activity. 

 

·      The Bill provides for interim protection for areas and objects while applications are resolved and although time limits apply, this has the potential to delay business activity. 

 

·      If the relevant State or Territory indigenous heritage protection regime is not accredited, businesses may be subjected to both a State/Territory process and a Commonwealth process. 

 

·      Parties with a direct proprietary or pecuniary interest will have an opportunity to negotiate with applicants, and where negotiation fails they will be entitled to make representations concerning the effect of any protection decision on their interests. 

 

·      The Bill does not increase the administrative burden on business. 

 

REGULATION IMPACT STATEMENT

 

Problem and Background

 

The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (‘the 1984 Act’) is the preservation and protection from injury or desecration of areas and objects in Australia that are of particular significance to indigenous people in terms of their traditions, observances, customs and beliefs.  It was envisaged that the 1984 Act would operate only where State and Territory laws did not provide adequate protection for indigenous heritage or did not exist.  The 1984 Act was an interim measure pending more comprehensive legislation dealing with indigenous land rights and heritage protection and included a sunset clause of 2 years.  When this did not eventuate, the sunset clause was removed from the Act in 1986.  However, the 1984 Act has not operated as a forum of last resort as envisaged and business is potentially subject to both a State/Territory process and a Commonwealth process.  Further, Ministerial decisions have been the subject of several high profile court challenges. 

 

In December 1995, the Hon Elizabeth Evatt AC commenced a comprehensive independent review of the 1984 Act.  The review consulted with Aboriginal and Torres Strait Islander communities, State and Territory governments, business and industry, and received 68 written submissions.  The report of the review (‘the Evatt report’) was provided to the government in late 1996.  The Evatt report contained a number of recommendations for reform. 

 

Objective

 

The principal objective is that the laws of Australia provide for protection of indigenous heritage.  As both the Commonwealth and States/Territories have laws relating to heritage protection, there is a need to clarify the respective roles of the Commonwealth and the States and Territories. 

 

Options

 

Possible options for achieving the objective are set out below.

 

1  Blanket protection under a Commonwealth Scheme

 

The Evatt review identified that most State/Territory regimes include legislation that provides automatic or ‘blanket’ protection for some aspects of indigenous heritage.  Accordingly, governmental action (typically following an application by a developer) is required in order to remove or diminish the protection offered by those laws.  This is in contrast to the protection offered by the Commonwealth under the 1984 Act which is based on the making of applications for protection. 

 

An option for clarifying the respective roles of the Commonwealth and the States would be for the Commonwealth to ‘cover the field’ by enacting blanket protection for all significant indigenous sites and objects. 

 

2(a)  Complete Commonwealth withdrawal from indigenous heritage protection based on uniform standards for State and Territory heritage protection regimes.

 

Another option for clarifying the respective roles of the Commonwealth and the States would be for the Commonwealth to withdraw from heritage protection on the condition that the States and Territories enacted uniform indigenous heritage protection legislation.

 

2(b)  Commonwealth withdrawal from indigenous heritage protection by accrediting State and Territory regimes which meet certain minimum standards, except in national interest cases.

 

A further option to clarify the respective roles of the Commonwealth and the States would be the accreditation of State and Territory heritage protection regimes that meet certain minimum standards. 

 

This option would provide for the Commonwealth to consider applications for protection until States/Territories became accredited.  Business would not be subject to multiple applications under the Commonwealth regime in relation to a single activity.  Once an application was received in relation to an activity, further applications would be invited so that they may be considered at the same time.  Later applications in relation to the same area or object and the same activity would be barred. 

 

Initially, there would be an attempt to resolve applications through negotiation.  Parties with a direct proprietary or pecuniary interest would have an opportunity to negotiate with applicants.  Negotiation may lead to an agreement which may be registered, and such agreements would be enforceable as a contract between the parties to the agreement.

 

Where negotiation failed, this option would provide the Minister with a discretion to protect significant areas and objects.  The Minister’s decision making process could be based on the 1984 Act, but modified to address flaws which have been highlighted by the courts.  In reaching a decision, the Minister would be required to consider the effect of making a long-term protection order on the proprietary and pecuniary interests of other parties.  Parties with a proprietary or pecuniary interest would be entitled to make representations concerning the effect protection would have on their interests.  Both confidential commercial information and culturally sensitive information would be protected from disclosure under freedom of information and archives legislation.

 

Impact Analysis

 

Groups affected

 

All options have the potential to impact on indigenous people, business and State and Territory governments. 

 

Costs and Benefits

 

All options would clarify the respective roles of the Commonwealth and the States/Territories and as such would reduce duplication and compliance costs for business.

 

Option 1 would mean the Commonwealth regime would provide comprehensive protection of indigenous heritage.  However, this would ignore the fact that some jurisdictions already have comprehensive legislation to protect indigenous heritage.  This option would also involve the Commonwealth more closely in issues associated with planning and land management which is recognised as a State/Territory responsibility. 

 

Option 2(a) would mean the States/Territories dealt exclusively with indigenous heritage protection.  However, this option would not allow the States/Territories to design laws to meet their own conditions; nor would it allow the Commonwealth to provide protection for sites in the national interest, for example where a site is of significance to parties other than a particular group of indigenous people. 

 

Option 2(b) would allow both the States and the Commonwealth to have a role in protection of indigenous heritage.  States would have the flexibility to design laws which meet both the minimum standards and their own conditions, and the Commonwealth would retain a role only in relation to unaccredited regimes or, in cases where the protection of an area or an object might be in the national interest. 

 

Consultation

 

The Evatt report recommended accreditation of State and Territory indigenous heritage protection regimes on the basis of minimum national standards, ie option 2(b).  Following the review, an initial round of consultation was held with State and Territory governments, relevant Commonwealth agencies, indigenous representatives and other interested parties. 

 

In July 1997, further consultation occurred following release by the Minister for Aboriginal and Torres Strait Islander Affairs of two discussion papers outlining proposals for reform of the Act based on option 2(b).  The papers were forwarded to State and Territory governments, relevant Commonwealth agencies, indigenous and other interests for consideration.  Since that time, there has been further consultation with the States/Territories and other parties in relation to the minimum standards for accreditation.  The States and Territories support the recommended approach.  Indigenous people are concerned about whether the operation of the minimum standards will confer a lower level of protection than under the Commonwealth regime.  However, the Commonwealth believes the minimum standards are sufficient to ensure that accredited States/Territories will provide an adequate level of protection for indigenous heritage. 

 

Conclusion

 

The preferred option is option 2(b) - accreditation of State/Territory regimes which meet minimum standards.  This option provides an appropriate balance in terms of clarifying roles in relation to decisions about indigenous heritage protection and allowing flexibility.  It has the advantage of allowing for States/Territories to design laws to meet their own conditions and for the Commonwealth to protect sites of national interest.  Minimum standards provide a basis for improving State/Territory laws and withdrawal by the Commonwealth provides an incentive for States/Territories to seek accreditation.  Accreditation and application based protection by the Commonwealth will allow the Commonwealth regime to operate as a forum of last resort.  The Commonwealth will only retain a role in indigenous heritage protection where State/Territory laws are not accredited and do not provide appropriate protection or where clear national interest considerations are involved. 

 

While option 2(b) would have a medium impact on business, it is considered to be the most appropriate means to implement the Commonwealth’s objectives.  As the process by which the views of business are taken into account mirrors the provisions of the 1984 Act, this option does not increase the administrative burden on business. 

 

Implementation, Administration and Review

 

The Director of Indigenous Heritage Protection will assist the Minister in the administration of the Act.  The Director will be required to maintain a public register of applications.  States and Territories will be required to apply to the Commonwealth Minister in order to seek accreditation. 

 

 

 

 

 

NOTES ON CLAUSES

 

PART ONE — PRELIMINARY

 

Clause 1 and Clause 2:  Short title and Commencement

 

The first two clauses provide for the short title and commencement of the legislation.  These clauses will commence on the day on which the Bill receives Royal Assent.  The other provisions are to commence on Proclamation but will commence automatically if not proclaimed within 6 months. 

 

Clause 3:  Schedule(s)

 

This clause provides that each Act specified in a Schedule to the Bill is amended or repealed as set out in the items in the Schedule concerned, and any other item in a Schedule to the Bill has effect according to its terms.

 

Clause 4:  Main object of Act

 

The main object of the Bill is to establish procedures relating to:

·      the preservation and protection from injury or desecration of certain significant indigenous areas and objects that are situated in Australia or Australian waters; and

·      the accreditation of heritage protection regimes in force in States and Territories.

 

Clause 5:  Definitions

 

Clause 5 sets out definitions of terms contained in the Bill.  Aboriginal peoples and Torres Strait Islander are defined in a manner consistent with the Constitution.  Indigenous person is defined to mean a person who is a member of one of the Aboriginal peoples of Australia or a Torres Strait Islander. 

 

Other key definitions include: indigenous tradition; significant indigenous area; significant indigenous object and indigenous human remains (which are classed as an object except where they are part of a recognised burial ground).  These definitions reflect the definitions in the 1984 Act. 

 

Sub-clauses (2) - (5) explain the meanings of references to various terms used in the Bill.  Sub-clause (6) sets out the circumstances in which an area or object is taken to be injured or desecrated and sub-clause (7) sets out the circumstances in which an area or object is taken to be under threat of injury or desecration.

 

Clause 6:  Extension to external Territories, coastal sea and other waters

 

The Bill is expressed to extend to the external Territories, the coastal sea of Australia and of each external Territory and to any other waters over which Australia asserts sovereignty.

 

Clause 7:  Act binds the Crown

 

The Bill is expressed to bind the Crown in every capacity.

 

Clause 8:  Extraterritorial operation of Act

 

Where appropriate, the Bill applies to all persons and all vessels whether or not they are within Australia or Australian waters.

 

PART 2 — THE DIRECTOR OF INDIGENOUS HERITAGE PROTECTION AND THE REGISTER

 

Division 1—The Director of Indigenous Heritage Protection

 

Clause 9:  Director of Indigenous Heritage Protection

 

The Bill establishes a statutory office the holder of which would be known as the Director of Indigenous Heritage Protection.

 

Clause 10:  Functions of Director

 

The Director will provide advice and perform a wide range of functions to support the Minister in the administration of the scheme established in the Bill.  A principal function of the Director will be to make assessments of significance and threat as required.

 

Clause 11:  Director’s appointment

 

The Director is to be appointed on the terms and conditions provided for in the Bill and on such other terms that are set by the Minister.  The Director may be appointed on a full-time or part-time basis.  If the Director is employed on a part-time basis, he or she may only engage in other paid employment if, in the opinion of the Minister, it does not conflict with the performance of the functions set out in the Bill.

 

Clause 12:  Director’s term of office

 

The Director is to hold office for a period not exceeding 5 years, but is eligible for reappointment.

 

Clause 13:  Director’s remuneration and allowances

 

The Director will be paid allowances and remuneration as determined by the Remuneration Tribunal.  In the absence of a determination, the Minister may determine the remuneration and allowances to be paid to the Director. 

 

Clause 14:  Leave of absence

 

The Remuneration Tribunal will determine the Director’s recreation leave entitlements.  The Minister may grant additional leave of absence other than recreation leave.

 

Clause 15:  Acting Director

 

This clause provides for appointment by the Minister of an Acting Director for up to 12 months if the position of Director is vacant or the Director is absent from duty or from Australia, or is unable to perform the duties of the office. 

 

Sub-clause (2) protects anything done by the Acting Director from being invalid merely because of certain defects or irregularities in connection with his/her appointment. 

 

Clause 16:  Disclosure of interests

 

The Director and any Acting Director must provide the Minister with a written disclosure of his/her financial interests and those of his/her immediate family.  This must be provided within one month of appointment, and is to be kept up to date. 

 

Clause 17:  Resignation

 

The Director’s resignation must be in writing, must be signed by the Director and must be sent to the Minister.

 

Clause 18:  Termination of appointment

 

This clause sets out a number of grounds on which the Minister may terminate the Director’s appointment, including if the Director is absent from duty for an extended period (except on approved leave); becomes bankrupt; or engages in paid employment without consent.

 

Clause 19:  Director not personally liable

 

The Director will not be personally liable for acts or omissions done in good faith.

 

Clause 20:  Staff

 

This clause provides for the Director to be assisted by staff employed under the Public Service Act 1922.

 

Clause 21:  Consultants

 

This clause allows the Director to engage persons with suitable qualifications and experience as consultants.  For example, the Director could use consultants to perform the functions of the office in a manner which is sensitive to indigenous culture, such as gathering gender specific information.  The Director may determine the terms and conditions on which consultants are to be engaged.  Consultants engaged by the Director may be indemnified against liability for acts done in good faith.

 

Division 2—The Register of Claims for Protection

 

Clause 22:  The Register of Claims for Protection

 

The Director is to establish and maintain a Register of applications for protection.  The Register may be maintained as a computerised system.

 

Clause  23:  Inspection of the Register

 

The Director must ensure that the public has reasonable access to the Register. 

 

PART THREE — ACCREDITATION PROCEDURES

 

Clause 24:  States and self-governing Territories may apply for accreditation

 

It will be open to the relevant State or Territory Minister to write to the Commonwealth Minister seeking accreditation, under the Bill, of the laws of that State or Territory and outlining how the laws of that State or Territory meet the minimum standards set out in Clause 26. 

 

Clause 25:  Processing applications for accreditation

 

If the Minister is satisfied that the laws of a State or Territory meet the minimum standards for protection of areas and/or objects and/or the reporting of findings of indigenous human remains, he or she must declare so in writing.  In deciding whether or not to accredit those laws, the Minister may seek further information from the State or Territory.  The Minister may also seek the advice of the Director, or any other person or body.  Declarations accrediting a State or Territory indigenous heritage protection regime will be subject to disallowance by the Commonwealth Parliament (see notes on clause 77). 

 

Clause 26:  Minimum standards for accreditation

 

The minimum standards for accreditation are that a State or Territory must have in place laws which:

 

a)  provide for protection of areas and objects that are significant to indigenous persons in terms of their indigenous traditions;

b)  recognise that indigenous persons are the primary source of information about the significance of areas and objects referred to in paragraph (a);

c)  provide an option for persons to obtain advance approval of an activity in relation to an area taking into account indigenous heritage issues;

d)  promote negotiated outcomes between indigenous persons and others whose activities might threaten areas or objects significant to those indigenous persons;

e)  provide protection for culturally sensitive information disclosed in the course of administering heritage protection legislation;

f)  ensure that, subject to paragraph (e), interested parties are treated fairly and are given an opportunity to put their views and to obtain reasons for decisions on the grant or removal of protection;

g)  provide effective deterrents to the injury or desecration of areas referred to in paragraph (a) or injury, desecration or illegal removal of objects so referred to through appropriate offences and penalties; and

h)  provide for the reporting of findings of indigenous human remains.

 

The standards represent the minimum for accreditation and do not prevent States/Territories providing additional measures.  The standards are not intended to require States/Territories to take a uniform approach to indigenous heritage protection. 

 

Partial accreditation may be conferred where, for example, a State or Territory provides for protection of areas but not objects (including indigenous human remains), or does not provide for the reporting of findings of indigenous human remains.  Sub-clause (2) clarifies which standards apply in the case of partial accreditation. 

Clause 27:  Minister may revoke or vary accreditation

 

This clause provides for the Minister to revoke or vary accreditation.  If the Minister considers that the laws of a State/Territory no longer meet the minimum standards, the Minister must notify the relevant State/Territory Minister.  The Minister must allow at least 90 days for the State/Territory Minister to respond.  After the end of this period and after considering any response, the Minister must revoke (or, in the case of partial accreditation, vary) the accreditation if satisfied that the laws of the State/Territory do not meet the minimum standards.  Declarations revoking or varying accreditation will be subject to disallowance by the Commonwealth Parliament (see notes on clause 77). 

 

Clause 28:  Application of laws not relevant to accreditation

 

This clause provides that Commonwealth territories such as the Jervis Bay Territory and the Indian Ocean Territories will not be treated as part of an accredited heritage protection regime, even if the law of a State or Territory that is applied in that Commonwealth territory is accredited.  This will mean that applications relating to those Commonwealth territories will be treated as UR applications (see notes on clauses 34 -38).

 

PART 4 — APPLICATIONS FOR PROTECTION

 

Division 1—The receipt and registration of applications

 

Clause 29:  The application

 

An indigenous person, or a person or body acting on behalf of, and with the authority of, an indigenous person may apply to the Minister for a long-term protection order (‘LPO’) in relation to a significant area or object.  Applications must be in writing, and must be lodged with the Director.

 

Sub-clause (3) requires applications to include the identity of the applicant, the date of the application, an identification of the area or object for which protection is sought; a description of the significance of the area or object to the applicant; a description of the activity that threatens the area or object, including a description of the kind of injury or desecration that would occur if the activity took place; and a description of the form of protection sought. 

 

Clause 30:  Director to enter applications on Register

 

The Director must enter the particulars of an application on the Register and notify the Minister that the application has been received.  The Register will contain particulars of the application but general terms may be used so that the Register does not contain any confidential information.  The Register will note whether the Director has decided that some information should not be included on the Register and the reasons for the Director’s decision. 

 

Clause 31:  Rejection of applications in certain circumstances

 

The Director must reject an application if the applicant has not exhausted the remedies available under the laws of the relevant State/Territory.  This would not normally extend to requiring an applicant to pursue a court challenge to a decision of a State/Territory Minister or authority. 

 

The Director will be able to seek further information from the applicant in support of the application.  If the applicant refuses to provide the information or fails to do so within the time limit set by the Director, then the Director may reject the application.  The Director must notify both the Minister and applicant of a rejection and the reasons for rejection.  Reasons must also be entered on the Register.

 

Clause 32:  Rejection of vexatious or frivolous applications

 

The Minister may at any time reject an application which is vexatious or frivolous.  The Minister must notify the applicant of the reasons for the rejection, and place this information on the Register.  Where this power is delegated to the Director, he or she must notify both the Minister and applicant of any rejection and the reasons for the decision, and enter these details on the Register.  Decisions under this clause will be subject to review by the Administrative Appeals Tribunal (see notes on clause 72). 

 

Clause 33:  Director to invite other applications

 

Where an application is accepted, the Director must publish a notice in a newspaper circulating in the region where the area or object is situated, containing the particulars of the application and inviting other applicants to lodge an application with the Director within 30 days of the publication of the notice.  Indigenous persons who do not come forward within this time limit will cease to be entitled to lodge an application which relates to the same area, or an overlapping area, or the same object and the same activity which constitutes the threat in relation to the original application. 

 

Division 2—Dealing with UR applications

 

UR (‘unaccredited regime’) applications relate to areas or objects situated in a State/Territory which is not accredited by the Commonwealth in relation to protection of areas or objects. 

 

Clause 34:  Director to facilitate negotiation and mediation processes in relation to UR application

 

The Director must attempt to facilitate an agreed outcome through negotiation or mediation between the parties, in accordance with Division 5.  However, negotiation and/or mediation is voluntary. 

 

Clause 35:  The Director must make a report to the Minister in relation to a UR application in certain circumstances

 

Where negotiation fails, the Director must prepare a report for the Minister which contains a finding as to whether or not the area or object is significant in accordance with indigenous tradition and whether or not it is subject to threat of injury or desecration.  The report must outline the processes involved in reaching these findings, and advise on the effects of the protection order on the proprietary or pecuniary interests of other parties.  The report must also give the general reasons for the findings (see notes on clause 61) and may contain advice to the Minister on any other matters the Director considers relevant to the claim for protection. 

 

Clause 36:  Minister may seek a further report from an independent reviewer

 

If the Minister is not satisfied that the process outlined in the Director’s report for reaching the findings as to significance and threat is adequate, or if new information emerges which was not available to the Director and which the Minister considers makes it desirable to have a further report, the Minister may appoint an independent reviewer to examine and report on the issues of significance and/or threat.  However, it is envisaged that the Minister will only rarely exercise the power to appoint an independent reviewer.  The power exists as a safeguard for the Minister, who is, in the normal course of events, bound by the findings of the Director as to significance and threat (see notes on clause 37). 

 

Clause 37:  Binding nature of reports

 

If the Minister does not appoint an independent reviewer, the Minister is bound by the findings of the Director as to significance and threat.  If the Minister appoints an independent reviewer, the Minister will be bound by the findings of the independent reviewer as to significance and/or threat. 

 

Clause 38:  Minister may make LPO in certain circumstances

 

This clause provides the Minister with a discretion to grant a long-term protection order or LPO in certain circumstances.  The conditions precedent to the making of an LPO are that the Minister is bound by a finding that an area or object is significant and a finding that it is under threat of injury or desecration.  Accordingly, any judicial review of this aspect of the Minister’s decision would not inquire into whether the area or object is significant and subject to threat, but simply whether the Minister was bound by a finding that the area or object is significant and by a finding that it is subject to threat. 

 

Apart from being bound by the above findings, the Minister must have regard to the remainder of the report of the Director (or any report of an independent reviewer).  That report will include all matters the Director considers relevant to the claim for protection.  The report will also provide the general reasons for the findings that an area is significant and is subject to threat (see notes on clause 61).  These reasons, along with the particulars of the application, will allow the Minister to appreciate the nature of the significance and to whom it is significant and will give the Minister a broad understanding of the nature and extent of the threat of injury or desecration.  The report will also contain advice in relation to the effect of making an LPO on the proprietary and pecuniary interests of other parties and a summary of representations on this issue.  After having regard to these matters and any other matters the Minister considers relevant, the Minister may grant or refuse to grant an LPO. 

 

Division 3—Dealing with AR applications

 

AR (‘accredited regime’) applications relate to areas or objects situated in a State/Territory that is accredited by the Commonwealth in relation to protection of that area or object. 

 

Clause 39:  Director to refer AR applications to Minister

 

The Director will refer an AR application to the Minister unless it is rejected on grounds that State and Territory processes have not been exhausted. 

 

Sub-clause (2) provides a power for the Minister to reject an application at an early stage if the Minister considers that the application does not make a prima facie case that protection is in the national interest.

 

Sub-clause (3) requires the Minister to consult with the relevant State or Territory Minister before making an LPO.  The consultation must canvass: any findings of that State or Territory concerning significance and threat; the procedures followed in reaching those findings; any information in the possession of that jurisdiction concerning any proprietary or pecuniary interests likely to be affected by the grant of an LPO; and any views of the State/Territory concerning the consequences of making an LPO.  The Minister may also take into account any other relevant information.

 

Clause 40:  Minister may adopt State or Territory findings as to significance and threat

 

After an AR application has been made, the Minister may elect to adopt the findings by a State or Territory that an area or object is or is not significant or is or is not subject to threat of injury or desecration.  However, the Minister must be satisfied that the procedures followed by the State or Territory provide a reliable basis for that finding.  This offers the potential to avoid additional costs and delays for all interested parties. 

 

Sub-clause (2) provides that where the Minister elects to adopt a State/Territory finding as to significance and/or threat, the Minister is bound by that finding. 

 

Clause 41:  Minister may require report from Director

 

The Minister may ask the Director to make a report in relation to any or all of the following: significance; threat; and, the effect of the grant of an LPO on proprietary or pecuniary interests. 

 

Sub-clause (2) requires the Minister to seek a report from the Director if the Minister has not adopted a finding by the State/Territory in relation to significance and/or threat.

 

Sub-clause (3) requires a report by the Director which contains any findings to specify the procedures followed in reaching those findings and, if the report advises on the effect of making an LPO on proprietary and pecuniary interests, requires inclusion of a summary of any representations on this issue.

 

Clause 42:  Minister may request Director to facilitate negotiation and mediation processes before making report

 

The Minister may ask the Director to attempt to facilitate an agreed outcome by the use of negotiation and/or mediation.

 

Clause 43:  Minister may seek a further report from an independent reviewer

 

If the Minister receives a report of the Director, this clause provides the Minister with an option to appoint an independent reviewer on the same basis as Clause 36.  However, as noted above, it is envisaged that circumstances warranting appointment of an independent reviewer are likely to be rare. 

 

Clause 44:  Binding nature of reports

 

If the Minister seeks a report from the Director, this clause provides for the Minister to be bound by the findings of the Director as to significance and threat.  However, if an independent reviewer has been appointed, the Minister is bound by the findings of the reviewer. 

 

Clause 45:  Minister may make LPO in certain circumstances

 

This Clause provides the Minister with a discretion to grant a long-term protection order or LPO in similar circumstances to those set out in clause 38.  Once again the conditions precedent to the making of an LPO are that the Minister is bound by a finding that an area or object is significant and a finding that it is under threat of injury or desecration.  The findings may be State/Territory findings which the Minister has adopted in accordance with clause 40, or may be the findings of the Director in accordance with clause 41, or may be the findings of an independent reviewer appointed in accordance with clause 43.  It is envisaged that any judicial review would take the same approach as outlined in the notes on clause 38. 

 

Once bound by these findings, the Minister’s decision making process mirrors that in relation to clause 38.  The Minister considers the nature of the significance, the nature and extent of the threat of injury or desecration, and the effect of making an LPO on the proprietary and pecuniary interests of other parties (including any views of the relevant State/Territory and any advice and/or summary of representations provided by the Director).  After having regard to these matters and any other matters the Minister considers relevant, the Minister may grant or refuse to grant an LPO provided that the Minister is satisfied that the making of such an order is in the national interest.  However, the circumstances in which protection would be in the national interest are likely to be quite rare. 

 

Division 4—Content, notification and effect of long-term protection orders

 

Clause 46:  Content of LPOs

 

An LPO must specify the period of the order and contain a description of the area, object or human remains that are to be protected.  LPOs may contain provisions in relation to protection and preservation of that area, object or human remains from injury or desecration.  Where an LPO relates to indigenous human remains it may include provisions for the return of the remains to the appropriate custodians or the storage of remains.  An LPO will be subject to disallowance by the Commonwealth Parliament (see notes on clause 77). 

 

Clause 47:  Notification and effect of LPOs

 

The Minister must notify the Director of a decision to make a long-term protection order as soon as practicable.  The Director must enter the details of the decision on the Register, and notify the applicants and any other affected parties of the decision.  LPOs will be published in the Gazette and in any relevant local newspaper.  An LPO comes into effect on the date in which it is published in the Gazette.

 

Sub-clause (4) provides that failure to do any of the above (except Gazettal) does not affect the validity of a long-term protection order.

 

Division 5—Negotiation and mediation

 

Clause 48:  Parties to negotiation and mediation processes

 

Where negotiation or mediation is required, the Director must attempt to identify all parties appropriate to participate.  In particular cases, it may be appropriate for State/Territory governments or authorities to be involved in negotiation. 

 

The parties appropriate to participate in negotiation or mediation processes must include the applicant and any other party that has a direct proprietary or pecuniary interest in the area or object concerned (‘core parties’).  It is anticipated that the latter will generally be the proponent of the activity which constitutes the threat claimed in the application.  However, sub-clause (3) provides that any failure to identify non-core parties does not prevent the core parties from reaching an agreement that can be registered.

 

Clause 49:  Director may facilitate negotiation or mediation or both

 

The Director must take all reasonable steps to encourage effective negotiation between parties, and engage a mediator if appropriate.  The Director may assist the parties to agree on procedures that would restrict the disclosure of confidential information provided by indigenous people or commercially sensitive information provided by other interested parties.  A mediator may be engaged while the parties continue to negotiate.

 

Clause 50:  Time limits for negotiation/mediation processes

 

The process of negotiation/mediation must be concluded within 3 months from the time that the public notice period calling for any further applications (see notes on clause 33) comes to an end.  The Minister may extend the negotiation/mediation period for one month at a time. 

 

Clause 51:  Registration of negotiated or mediated agreement

 

The core parties will be able to request the Director to register their agreement.  However, the Director must be satisfied that the agreement is broadly consistent with the purposes of the Bill. 

 

Clause 52:  Effect of registration

 

Registration will avoid any doubt that such agreements are enforceable as a contract between the parties to the agreement.  Registration of an agreement disposes of the original application, but does not prevent a new application for protection being made if a new threat emerges either because of the activities of persons who are not parties to the agreement, or because the agreement has been breached. 

 

In the absence of any new threat, this clause and clause 33 ensure that only one process is undertaken in relation to the same area or object and the same activity claimed to constitute a threat. 

 

Clause 53:  Termination of formal negotiation and mediation processes

 

This clause ensures that negotiation/mediation is voluntary by allowing core parties to terminate the process. 

 

If negotiations between the core parties do not have any prospect of success within a reasonable time period, the Director or the Minister may terminate the process.  If the process relates to a UR application, the Director has the power to terminate it, after taking account of any views of the Minister.  If the process relates to an AR application, the Minister, on advice from the Director, may terminate the process. 

 

Termination of the process can take place at any time and results in an application proceeding to the reporting stage. 

 

Clause 54:  Registration of agreements not concluded under the formal negotiation or mediation processes

 

This clause allows for the possibility that the core parties may reach an agreement despite the termination of the formal negotiation or mediation process.  This clause allows the Director to register such an agreement provided it is broadly consistent with the purposes of the Act, and that it includes all the core parties.  The decision to register an agreement can be made at any time before the Minister has decided to grant or refuse an LPO.  Registration of an agreement will dispose of the application.

 

Division 6—The making of reports

 

Clause 55:  Procedures to be followed by Director in preparing report

 

Where the Director is required to make a report in relation to a UR application, the Director may adopt the finding of a State or Territory in relation to the significance of an area or object or the threat posed by a proposed activity.  However, the Director must be satisfied that the procedures adopted by the State/Territory provide a reliable basis for the finding.  This clause provides scope for the Director to recognise an appropriate process for the assessment of significance and/or threat and avoids subjecting the applicants and other parties to a duplicate process. 

 

Before making a report, the Director must publish a notice in a newspaper circulated in the region where the area or object is situated informing people about the application and inviting representations on threat and significance (unless State or Territory findings have been adopted) and on the effect that making an LPO would have on proprietary or pecuniary interests.

 

Sub-clause (3) provides that in certain circumstances, the Director may prepare a report in relation to an object without giving a public notice and seeking submissions.  The Director must be satisfied that public comment on an application to protect an object would not be necessary or appropriate.  This provision reflects the option available under the 1984 Act for the Minister to make a declaration in relation to objects without appointing a person to make a report. 

 

Where the Minister has sought a report from the Director in relation to a particular matter in an AR application, the Director will follow the same notification procedures in relation to that matter.

 

Clause 56:  Procedures to be followed by independent reviewer in preparing a further report

 

If the Minister has decided to appoint an independent reviewer (see notes on clauses 36 and 43), the reviewer may write to a person and request a submission or an additional submission in relation to the matter.  In addition, the reviewer may publish a notice in a newspaper circulated in the region informing people of the particulars of the application and inviting anyone to make representations in relation to the application.

 

Clause 57:  Recognition of indigenous persons as the primary source of certain information

 

In preparing a report, the Director or independent reviewer must have regard to the principle that indigenous people are the primary source of information about the significance of particular areas or objects in terms of indigenous traditions.

 

Clause 58:  Independent reviewer has access to all correspondence with, and representations to, Director

 

To assist the reviewer in preparing his or her report, the Director must provide the independent reviewer with all information and documents in the Director’s possession including a copy of the application, any additional information provided by the applicants and all correspondence and representations in relation to the application.  In seeking any further submissions the reviewer must inform the public that all previous submissions will be treated as if they were made to the independent reviewer.

 

Clause 59:  No right to see representations of others

 

In the interests of a streamlined decision making process, this clause expressly limits the entitlements of affected parties to see the claims made by others.  However, it does not prevent parties giving permission to make their representations available to others. 

 

Sub-clause (1) provides that a person who makes a representation either to the Director or an independent reviewer is not entitled to see the application or any additional information provided by the applicant, or any other representation made to the Director or the independent reviewer. 

 

Sub-clause (2) provides that a person who makes a representation only to an independent reviewer, is not entitled to see the application, any additional information provided by the applicant, or any other representations whether they were made to Director or the independent reviewer. 

 

Clause 60:  Time limits for reports

 

If the Director is required to prepare a report under Part 4, Division 2 (in relation to a UR application), the Director must present that report to the Minister within three months.  If a report is required under Part 4, Division 3 (in relation to an AR application), it must be provided within the period specified by the Minister.

 

An independent reviewer’s report must be provided to the Minister within the period specified by the Minister.

 

A reporting period may be extended by the Minister and the failure to submit a report within the specified time does not invalidate the report.

 

Clause 61:  Additional matters to be dealt with in reports

 

If the report prepared by the Director or independent reviewer contains a finding of significance or threat, the report must set out the process followed and general reasons

for reaching that finding.  Those general reasons will allow the Minister to gain an understanding of the nature of significance and the nature and extent of the threat without going behind the findings, or examining any confidential indigenous information on which the findings may be based.  Further, if the report examines the effect of making a long-term protection order on proprietary or pecuniary interests, the report must contain a summary of all representations made in relation to that matter.

 

Division 7—Emergency protection orders and interim protection orders

 

Clause 62:  Making of EPOs

 

This clause sets out the circumstances for the making and revoking of emergency protection orders (‘EPO’).  The Minister or his delegate will be able to make an EPO in relation to an area or object for a period of up to 7 days, and it may be extended by the Minister for a period not exceeding 7 days.  Applications will not be required for an EPO.  This will effectively allow oral applications whereby applicants may seek emergency protection while a written application is prepared.  The use of delegates to make EPOs mirrors the ‘authorised officer’ process in the 1984 Act.  However, as a safeguard, only the Minister may extend an EPO and the Minister may revoke an EPO at any time. 

 

To make an EPO, the Minister must be satisfied that the area or object in question appears to be significant in terms of indigenous tradition and that there appears to be a threat posed to that area or object.  In relation to an AR application, the Minister must also be satisfied that protection may be in the national interest.  An EPO may also be made in relation to an area or object in an accredited jurisdiction without the national interest criterion being satisfied, if the Minister has given notice to revoke accreditation under sub-clause 27(1) and is waiting for any response from the State/Territory. 

 

Where an application has been rejected by the Director on the grounds that State/Territory processes have not been exhausted, a person may apply in writing to the Minister for an EPO.  The Minister may make an EPO for an extended period if the State/Territory does not provide interim protection while those processes are pursued. 

 

Clause 63:  Making of IPOs

 

This clause sets out the circumstances for the making and revoking of interim protection orders (‘IPO’).  The Minister will be able to make an IPO in relation to an area or object for a period not exceeding 4 months, which may initially be extended for a period not exceeding 3 months, and then extended for further periods of 1 month. 

 

To make an IPO the Minister must have received an application for a long-term protection order.  Further, the Minister must be satisfied, on the face of the application, that the area or object appears to be significant and subject to threat. 

 

An IPO in relation to an area or object in an accredited jurisdiction may only be made if the Minister is satisfied that protection may be in the national interest, or if the Minister has given notice to revoke accreditation under sub-clause 27(1) and is waiting for any response from the State/Territory.  It is envisaged that the Director will be delegated the power to make IPOs in relation to UR applications. 

 

Clause 64:  Notification of EPOs and IPOs

 

The Minister or his/her delegate must try to notify persons likely to be substantially affected that an EPO or IPO has been made.  If a delegate makes an EPO or IPO, the delegate must also notify the Minister that the order has been made, and the reasons for making the order.

 

Division 8—Multiple Applications

 

Clause 65:  Negotiation and mediation processes if more than one application

 

If there are two or more applications relating to the same area, overlapping areas, or the same object, the Director must treat the applications as a single application for the purposes of negotiation and/or mediation.

 

Clause 66:  Making of an order if more than one application

 

The Minister will only be able to make one order in relation to one or more applications for protection of an area, overlapping areas, or the same object.  This will ensure that only one process need be undertaken in relation to the same activity. 

 

PART 5 — MISCELLANEOUS PROVISIONS

 

Division 1—Indigenous human remains

 

Clause 67:  Discovery of indigenous human remains

 

Accreditation in respect of reporting of findings of indigenous human remains will remove the obligations under this clause.  Where a regime is not accredited for this purpose, a person who discovers objects which are indigenous human remains will be guilty of an offence if he or she fails to report the discovery to the Director.  An indigenous person is not required to make a report where that would be contrary to his or her indigenous tradition.  If indigenous human remains are reported to the Director, the Director must undertake consultation with any relevant indigenous people about the appropriate action to be taken.

 

Clause 68:  Disposal of indigenous human remains

 

Where indigenous human remains are discovered and delivered to the Director, he or she will be obliged to return the remains to an appropriate indigenous person.  Otherwise the remains must be dealt with in accordance with reasonable directions of an appropriate indigenous person, or if there are no such persons they must be transferred for safekeeping to an authority prescribed by regulation.

 

Division 2—Offences

 

Clause 69:  Offences in relation to protection orders

 

Contravention of a protection order carries a penalty of up to 5 years imprisonment.  Currently the Criminal Code provides that the equivalent fine for an individual is up to $33,000 and up to $165,000 for a corporation.  Over time, these fines will be updated as provided for in the Criminal Code. 

 

Clause 70:  Evidence

 

This clause relates to an offence under clause 69, and provides that a person will not be committed for trial or convicted in proceedings in relation to such an offence if there is evidence that the person concerned did not know of the existence of a protection order.

 

Clause 71:  Conduct by directors, employees and agents

 

This clause sets out the circumstances in which a corporation may be liable for the conduct of a director, employee or agent. 

 

Division 3—Administrative review of certain decisions

 

Clause 72:  Review by the Administrative Appeals Tribunal of decisions to reject vexatious applications etc

 

This clause provides for review by the Administrative Appeals Tribunal (AAT) of the merits of decisions by the Minister to reject an application on the grounds that it is vexatious or frivolous. 

 

Division 4—Power of courts and of the Administrative Appeals Tribunal etc.

 

Clause 73:  Exclusion of the public or persons from certain proceedings etc.

 

In proceedings relating to the Bill (including proceedings arising under the Administrative Decisions (Judicial Review) Act 1977), a court or the AAT will be able to order the exclusion of the public or a specified person from sittings of the court or of the AAT and prohibit or restrict the disclosure of particular information in relation to the proceedings.  This includes information pertaining to indigenous traditions or sensitive commercial information.  In making such an order, the court or the AAT must have regard to the interests of justice and, where appropriate, the interests of either indigenous traditions and any relevant commercial interests. 

 

Clause 74:  Public interest immunity in relation to certain information

 

A person holding information pertaining to indigenous traditions may claim immunity from disclosing that information on the grounds that the disclosure will not be in the public interest.

 

Clause 75:  Injunctions

 

The Minister may apply to the Federal Court of Australia for the grant of an injunction where a person has engaged, or is proposing to engage, in conduct that contravenes a provision of a declaration made under Part 4, or is in any way knowingly concerned in, or a party to, such contravention.  The Court may grant an interim injunction, pending the determination of an injunction application.  An injunction may be granted to either restrain a person from engaging in conduct or to require a person to do something.  The Court may rescind or vary an injunction.

 

Clause 76:  Powers of courts and the Administrative Appeals Tribunal not limited

 

Nothing in the Bill limits or restricts any powers conferred on a court, or on the AAT, by any other law.

 

Division 5—Other matters

 

Clause 77:  Disallowable instruments

 

Accreditation declarations and LPOs will be subject to disallowance by the Commonwealth Parliament.  However, they will not be treated as legislative instruments. 

 

Clause 78:  Compensation for acquisition of property

 

This clause is an express recognition of the Commonwealth’s Constitutional obligation to provide just terms compensation if property is compulsorily acquired.  A substantially similar provision was included in the 1984 Act.  However, in most if not all circumstances it is envisaged that actions and decisions taken under the Bill, including the making of long-term protection orders will not result in acquisition of property.

 

Clause 79:  Legal or financial assistance

 

This clause allows the Attorney-General or a delegate to grant legal or financial assistance to a person who has applied for a protection order or whose proprietary or pecuniary interests are likely to be adversely affected by a proposed protection order.  Assistance may be granted if it would involve hardship to the person if assistance was refused and in all the circumstances it is reasonable that assistance should be granted. 

 

Clause 80:  Delegation

 

The majority of the Minister’s powers under the Bill may be delegated to the Director.  However, the following are exclusive to the Minister: decisions on accreditation of a State or Territory heritage protection regime; decisions in relation to LPOs; decisions to make extended EPOs where State/Territory processes are being pursued; decisions to reject an AR application because it does not make a prima facie case for protection in the national interest; and the power to appoint an independent reviewer. 

 

Clause 81:  Regulations

 

The Governor-General will have the usual powers to make regulations for the purpose of the Bill eg to prescribe authorities for the keeping of indigenous human remains that are delivered to the Director and are unable to be returned to indigenous people. 

 

Schedule 1—Repeal of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and related saving and transitional provisions.

 

This Schedule provides for repeal of the 1984 Act.  Victoria has sought repeal of Part IIA of the 1984 Act which only applies to that State.  The saving provisions ensure that Part IIA and any other necessary provisions of the 1984 Act continue to operate until Victoria enacts its proposed replacement legislation.  The Schedule also saves any declarations made under the 1984 Act. 

 

The transitional provisions also allow the Minister flexibility to consider any applications lodged under the 1984 Act, but not yet considered by the Minister, to be treated as applications lodged under the Bill and resolved in accordance with the procedures laid down in the Bill. 

 

Schedule 2—Amendment of other Acts.

 

This Schedule amends the Freedom of Information and Archives Acts to provide a new category of exemption relating to confidential indigenous information collected in the course of administering the Bill.  Sensitive commercial information is already protected from disclosure under those Acts. 

 

This Schedule also amends the Hindmarsh Island Bridge Act 1997 (the Bridge Act) to remove any doubt that the Bridge Act applies to the Bill in the same way that it applies to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (which is repealed by Schedule 1 of the Bill).  The definition of “Heritage Protection Act” in the Bridge Act is changed to mean the Bill (once enacted) and the words “protection orders” are added as these replace “declarations” under the 1984 Act.  Accordingly, the Bridge Act will preclude the making of any protection orders under the Bill (once enacted) which relate to the areas referred to in the Bridge Act associated with the Hindmarsh Island bridge.