ABORIGINAL HERITAGE (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 March 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:27): I thank the shadow minister for his contribution and consideration and advice to the opposition on this matter, and confirm his indication to support the bill. However, I will have a number of questions in committee, and I also place on the record my support for and appreciation of the shadow minister's moving of three amendments. I am not quite sure of the third, frankly. No cost orders is not usually something I support; nevertheless, I think the first two, comprehensively, will help support the new structure that is to be in place.

I have heard a lot of talk about why this act was originally set in place nearly 30 years ago. It had a meritorious beginning and was universally acclaimed. It had a very specific purpose. I will not repeat it but, in 2008, the government decided that it would conduct a review of the act. Other legislation had come into place around the country and it was reasonable that there be a review.

The two key objectives of the review were to enable traditional owners to deal directly with land use proponents about the impact of their activities on Aboriginal heritage and, secondly, the accommodation of native title holders and complainants within this structure, and I will have a bit to say about that in committee.

I should also perhaps just highlight that under the present act already traditional owners have a powerful tool to be actively at the forefront of decision-making about activities impacting on Aboriginal sites, and that is section 6(2), which is an obligatory provision requiring ministerial delegation of certain powers to traditional owners. The government told us in the second reading that, in addition to the review process which has been outlined by the shadow minister, and in relation to the agreements that were reached:

Agreements of this kind do not have to be made with a RARB but because they are made according to the requirements of other legislation and the Minister is required to approve them if of the view that an additional regulatory burden is not required. Since consultation commenced in 2008, there has also been litigation about the meaning and effect of section 6(2) of the current Act. Section 6(2) —

and it goes on to explain, as I have indicated, what it does. The second reading explanation continues:

The impact of judicial decisions about the interplay between section 23 and section 6(2) has led to difficulties with the administration of the Act. The current wording of section 6(2) where the Minister must at the request of Traditional Owners delegate his powers has proved to be impossible to determine since the Act was introduced in 1988. There have only been a handful of section 6(2) requests and no section 6(2) requested has ever been successfully granted.

That, I suggest, is a far cry from what has actually happened. In fact, in 2011 the government was found to have acted unlawfully and to be in breach of the provisions by the Full Court of the Supreme Court of South Australia in the case of Starkey v State of South Australia (2011) SASCFC 164. That is the reality, not the colourful, minimalist description as outlined in the second reading contribution. The government have not been doing the right thing. They had a means by which they needed to deal with it and one of them was, as is in this bill, to abolish section 6(2) of the act.

Do I think that is the best model? I do not, actually. Do I think that will better protect Aboriginal contribution and consultation in this area? No, I do not. Will it improve it at all? I am hopeful, as is the shadow minister, that there will still be some improvement in the model that is otherwise outlined. Am I confident that I can trust the government to do the right thing? Certainly not. With those words, I indicate my scepticism as to what is happening, and I will be asking the minister, who can deliberate on this while pending going into committee, why in fact section 6(2) has even to be removed at all or at least why the initial protections under that are not preserved.

I think this is more about the accommodation of other interests, including proposed developments which the government are keen to approve. Perhaps that is an indication of why the Minister for State Development and Treasury and various other important things on behalf of the state actually has carriage of this bill. Aboriginal Affairs, of course, is now under State Development, so it is reasonable that he is here to deal with it, but he has some other fairly powerful interests and responsibilities on behalf of the government. He can rest assured that I do not give the same ringing endorsement of what is actually happening here; nevertheless, we will try to work with the government. The fact of their bona fides could have easily been promoted, if they were really genuine, by allowing us to view the guidelines and be consulted in the course of the deliberation of what the guidelines were going to incorporate.

The second aspect which I am very concerned about relates to the assertion by the government that a native title body corporate will automatically become a registered Aboriginal representative body unless it opts out or the heritage committee does not approve it. In fact, when one reads the bill, it is a prerequisite for a native title body corporate actually being approved by the committee.

Sure, it could opt out, and it could not apply at all of course, but be under no illusion: this does not automatically become a RARB, because that is not something where you simply put your hand up and there is no bar to that occurring. In fact, you lodge an application and, subject to the heritage committee allowing that, it can progress.

I think again that the government have been disingenuous in their approach, and in the language in the second reading contribution, because it is clear that under section 19B(5) the heritage committee's approval is a necessary precursor to the native title body corporate becoming an RARB—and it is a very important difference. I will raise some questions about the matter, and I also will have some questions about the $7.6 million funding that had been allocated in the budget for securing the implementation of the new act over four years, so the Treasurer will not be caught like a possum in the spotlight.