2016-03-22
Mr BARBER (Northern Metropolitan) — I am delighted to be here supporting this bill that is going to make a number of important changes to the Aboriginal heritage legislation in Victoria. Why is it important that we protect Aboriginal heritage? I cannot speak for Aboriginal people. I cannot begin to describe why it might be important to them that they maintain the connections, the stories, the sense of community pride and identity. As a non-Aboriginal person, I would just say that we live in a state or on a piece of country where for tens of thousands of years tens of thousands of people carried on their livelihoods. That that has been the only society that so far in human history has managed to continue in a sustainable way for such a long period means that we all have a lot to learn from that story. That is what cultural heritage is. Ms Crozier talked about a number of the components that could go into Aboriginal cultural heritage, but at the end of the day cultural heritage is important because it tells a story. It is a story that is important for us to learn more about and to remember.
We now live in a highly modernised society, in a world of technological triumphalism, but we still struggle to learn how to live together harmoniously and peacefully on this small planet of ours. Therefore the perspectives, the knowledge and the unique culture and way of life that were those of the Aboriginal nations that we now know as the state of Victoria provide an enormously important series of life lessons that we should be doing everything we can to hang onto.
Having met with some members of the Victorian Aboriginal Heritage Council (VAHC) and talked to them about this, I have to say I learnt even more from them about why cultural heritage is important to them. I have had the great privilege of meeting with Aboriginal people on their land in many, many parts of Australia over many, many years. Yet I have to say yet again that meeting with the members of the Victorian Aboriginal Heritage Council I learnt even more. That of course is why we would want to have that kind of cultural exchange between people like me, who represent the nation of the Victorian state, and people whose identity is still very much with the Aboriginal nations and who in many cases have been living on the same piece of country as their ancestors and can trace their heritage back tens of thousands of years. Many of us like to learn more about our own ancestry. We can trace it back a few hundred years, perhaps, depending on the records — and that is a different experience for all of us. It is staggering to imagine a heritage that actually would take you back 10 000 years or more, with people living on the one place. No wonder the members of the Victorian Aboriginal Heritage Council put such an enormous value on the work that they are doing.
The original bill was subject to an extensive consultation process, although there was a bit of a gap in the middle there between the original consultations, the inquiry that was mentioned, the exposure draft of the bill and submissions and the more recent iteration of the bill that has come forward. We have of course read all that material, sought to understand what was in the original submissions, received some further correspondence on the matter and had a meeting, as I said, with the Aboriginal heritage council, and there might be one or two bits of further discussion here today.
While the bill does not do everything that every person we have consulted with would like it to do, nevertheless the overwhelming view is that this bill should receive support and pass today without delay. There are one or two aspects which I will go into in a moment where the bill has fallen short of some people's ambition. However, the clear view is that we should pass this bill as quickly as possible and leave those matters for another day. Therefore the Greens will not be proposing any amendments to the bill to pick up some matters that were referred to in various submissions and correspondence. However, I do want to note for the record what some of those matters that have been raised with us were, because I think it is important that I demonstrate today that we have been reading some of the material and listening to some of the submissions that have been put forward to us.
To save time in the Parliament's proceedings, I have one or two questions to put on the record. I have given this information to some of the minister's advisers. If the minister who is at the table is able to answer these questions either at the third-reading stage or possibly at the beginning of consideration of clause 1, that would save us all a bit of time and I will not need to raise matters under various clauses.
What we are trying to achieve here today is to meet the standard set by new section 1(b), which is a new purpose of the act:
to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other peoples …
We regularly acknowledge traditional owners with those exact words — that they are the custodians of the cultural heritage of this land and will continue to be so into the future. This bill is the place where we make those words carry some legal force.
In no particular order I want to raise a few matters that have been raised with me. It has been put to me that the Victorian Aboriginal Heritage Council needs a full-time chair. The current workload expected of the chair is already a significant part-time workload. We calculate that the proposed provisions would require at the least a full-time chairperson position. That is in fact what has been put to us by the Aboriginal heritage council. I can tell all members, having met with the council, that its members take their work incredibly seriously. They understand the heavy responsibilities that are put on them, not just in terms of cultural protection but also in terms of the many, many different duties that are given under this bill. It is for that reason that I would ask the minister to respond to the questions whether the government intends to create a full-time position for the chair, whether the government has done any comparison with other similar bodies with such weighty, extensive and complex duties and whether it might be just a matter of equity that someone with both the expertise and the level of responsibility of the chair of the VAHC ought to be in a full-time position.
A matter that appears in later clauses of the bill — that is, clauses 26 and 58 — relates to the circumstances in which it is not an offence to harm Aboriginal cultural heritage. Clause 26 amends section 29 so it is not an offence for holders of an Aboriginal cultural heritage land management agreement (ACHLMA) to harm Aboriginal cultural heritage. These agreements are intended to manage and protect Aboriginal cultural heritage on public land. Following on from the matters that were put into various submissions in various iterations of the bill and with a copy of the bill in front of us today we are not 100 per cent clear on whether the existence of one of those agreements, an Aboriginal cultural heritage land management agreement, affects the requirement for a land manager to seek a permit. My question for the minister is: will the existence of an ACHLMA affect the requirement for a land manager to seek a permit for prescribed activities?
In relation to surveys for Aboriginal cultural heritage, a person who intends to carry out such a survey must give written notice of the person's intention to the registered Aboriginal party, the secretary and the owner or occupier of any land. Going back to the heritage council's submission in 2014, the question arose as to where there was no registered Aboriginal party, would the council be notified instead? My question for the minister is: has the minister considered how to give appropriate notification to traditional owners where there is no registered Aboriginal party as the responsible body, and if the answer is that the government believes this is an issue, does it intend to amend this provision?
In clause 42 there is a test to determine if someone who intends to carry out an activity needs a cultural heritage management plan. The submission from Native Title Services Victoria suggests that this gives the secretary almost total discretion about whether to accept or refuse an application and therefore, if you like, any constraints — positive or negative — on the secretary's powers and therefore what would or would not cause the secretary to accept or refuse an application. Again, our reading of the bill is that the secretary is given a lot of discretion there with no requirement to consult with traditional owners. There are some who argue that registered Aboriginal parties should be given that function. This is possibly the strongest example in the bill of a measure which goes against the new principles of the act as I read at the beginning: 'to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other peoples'. This is a clear example of where the secretary is in fact is taking on that responsibility rather than Aboriginal people themselves. I accept that that is the nature of the legislative system we have in front of us.
The Victorian government, I was pleased to note, has been having more wideranging discussions in Victoria about the possibility of a treaty, something that we in the Greens have advocated for for a long time. We think that could be the beginning of a new and much more equal relationship between the Victorian state and Victoria's Aboriginal nations. Until such time as we have a legal framework such as the one there is in New Zealand, which Ms Crozier referred to, or in Canada or even in certain other parts of the world where indigenous people have in past times or in current times sat down and negotiated a treaty, then it will be a situation where predominantly whitefellas come into this Parliament and make laws for Aborigines. We make the decisions about their cultural property in this case, and right here in clause 42 we have a pretty good example of it. The Parliament, in the absence of a broader political compact, finds itself putting a secretary of the department in charge in place of — standing in the shoes of — Aboriginal traditional owners. That just shows that there are limits to what we can do within the existing legal frameworks.
As I said, this matter was raised in the Native Title Services Victoria submission to the 2014 process, and without further dialogue that matter has appeared in this bill in the form to which that particular Aboriginal group previously objected. That is why I have sought to raise that particular matter.
In clause 50 of the bill we have something called activity advisory groups (AAGs) — that is, advisory groups for the preparation of a cultural heritage management plan in areas where there is no registered Aboriginal party. There is strong agreement that these groups are a good idea, but again it is the secretary of the department who appoints the representatives from any relevant traditional owners, and therefore the question has been raised that there is some ambiguity as to whether everyone on an AAG must be a traditional owner. I would like, if it is possible, the minister to clear up that particular ambiguity that arises predominantly out of clause 50. It may be possible that this is a piece of unfinished business that a further bill could address.
We have the question of intangible Aboriginal heritage, and there is strong support for the inclusion of this and also for higher penalties for using intangible heritage for commercial purposes. We all want to make sure that this provision works. It is good that the definition is broad, but it also needs to be clear. The minister could explain to us a little bit about how the various elements of this issue will come together, particularly how the government would consult with traditional owners to create the criteria. Will guidelines be drawn up? I think this is quite an important issue.
There is a history of injustice, as we know, and there would be many Aboriginal people who would take the right step forward and talk about what has been taken away from them over the period of European colonisation. I would have to say, though, that it is possible for those sorts of losses to continue without Aboriginal people having some control over their own heritage and the way in which it is used, and that is a very important consideration for those of us who want to not just correct historical injustices but find a new and better way of living together where we all get maximum benefit.
Finally — or perhaps not finally — clause 70 addresses 24-hour stop orders that stop people harming Aboriginal cultural heritage. It appears that there would be a necessity for authorised officers to enter land, and I just want to get some assurance from the government about whether or not there should be concern about the limitation in section 166 of the act, which could perhaps be brought into line with other Victorian statutes where authorised officers are given the ability to enter land for the purpose of preventing, in this case, an ongoing offence.
In clause 78 there is an expanded function for the Victorian Aboriginal Heritage Council, welcomed by all stakeholders as far as we are aware, and that includes promoting public awareness and understanding of Aboriginal cultural heritage in Victoria. I think that that is a welcome provision. There is also in this bill a provision in relation to the Victorian Aboriginal Heritage Register. The VAHC submitted in 2014 that it should be maintained by the council instead of the secretary. Certainly this bill would have been an opportunity to do that, and the VAHC argued persuasively that the traditional owners are uniquely expert in the management of Aboriginal cultural heritage and that the act should be amended consistent with this principle. It would be good if the government could clarify whether it is still committed to supporting the transfer of the register to the Victorian Aboriginal Heritage Council over time.
I think I will just leave it there. This is a piece of legislation that I was part of bringing into law. At the time, the most important question, I think, that we had to raise was the sustainability of this model. If the Victorian Aboriginal Heritage Council and its related parties are given the responsibility — the enormously important responsibility — of protecting this cultural heritage, not just for all of them but for all of us, for we would think many, many thousands of years into the future, then is the model sustainable? Are the various groups being given sufficient resources to carry out their jobs properly, which I know they are enormously desirous to do?
In closing I would say that that still remains the most important question that the Aboriginal heritage council put forward to me: is this a sustainable model? However, it was very clear that it welcomes these new changes and that it is keen to see the changes put in place as quickly as possible, and I am pleased that with the cooperation of all members we will be able to do that here today.
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