Summary of DAA-AACAI-AASWA meeting, 4 July 2014, DAA Head Office

DAA: Aaron Rayner, Kathryn Przywolnik, Ian Moffat

AACAI: Fiona Hook, Joe Dortch

AASWA: Eddie McDonald

Meeting went from 1:00 – 2:30 pm

DAA had invited AACAI and AASWA representatives to discuss the proposed amendments to the Aboriginal Heritage Act. After a short briefing by Kathryn and Aaron we had a long discussion. Sections referred to below are as per the Amendment Bill. Below are the major points discussed:

·  As this is now a green paper Bill the Government is only looking for comment on whether we can see any unforeseen consequences resulting out of the amendments. They stated that this is not an opportunity to provide additional changes or new directions.

·  New regulations have not been introduced at this stage because Parliament must approve resources to develop them following tabling of the Bill. It appears that they exist at concept stage at present. All agreed that formulation and understanding of regulations is key to most of the proposed workings of the AHA. Regulations would be subjected to a consultation process as well – this needs to be monitored. A general theme running through the discussion was that regulations were designed to specify procedures; as it could not be changed frequently the Act would only set up a broad framework, allowing long-term flexibility.

·  We said one major issue is that it is unclear how the Amendment Bill will meet the rhetoric produced on the AHA website (improved protection, certainty, fairness, transparency, empowerment). In fact many people including ourselves felt that the opposite might be true in every case. The DAA staff were adamant there would be improvements under the amended Act and new regulations. The CEO’s role for example is a standard public service device to ensure accountability, since the CEO would be in the future liable for all decisions. Currently the liability for decisions by Minister acting on ACMC advice is unclear. DAA indicated that it would be in the best interests of the CEO to be transparent and accountable and higher penalties would cause proponents to be more careful.

·  We noted the government was missing an opportunity to define significance or offer better definitions of sites under s5. The response was that DA was satisfied with s5 and had published criteria. They would prefer to see the outcomes of current Supreme Court litigation (re Port Hedland Harbour mythological site) before further advice or making revisions to s5. At which point Aaron said that the case would determine if the AHA could protect a mythical being? – which would seem to be a strange interpretation of s5(b) of the AHA .

·  He was asked if the DAA in their assessments as to whether places met the criteria of s5, if primacy was been given to 5(c) and whether this was in contradiction to the AHA, which even in the amended Bill still apparently treated all of subsections as equal. He did not answer the question.

·  We asked what would happen to Other Heritage Places (OHP) and future Heritage Information Submissions (HIS). The response was that owing to the Public Records Act this site information would still be available. However, it appears that all assessments of OHPs and HIS forms would be publicly recorded under the new s50 and s68. We commented that more resources and expertise need to be granted to DAA to offer expert advice to the CEO, since by now we all had experiences of inexpert decisions about sites by DAA officers. It is crucial that DAA maintains proper records of all assessments and that the rationale for assessments is clear and acceptable to experts and non-experts.

·  We asked if archaeologists would be granted s16 permits to investigate places that are not registered sites to such an extent that the investigation disturbs the place, e.g. through excavation or collecting artefacts. All agreed that none of the past solutions offered by DAA, such as area research permits, are actually legal. The bottom line is that s16 permits have to be considered by the ACMC, not by the CEO. Surprisingly Aaron and Ian appeared not to have considered the commercial and research implications of this issue and asked that we submit some ideas on draft clauses that might indemnify or permit archaeologists to excavate places that are not known to be sites but might become listed as sites once cultural material has been revealed through excavation.

·  We asked why the CEO did not seem to be required to refer to the Native Title Act 1993 when the ACMC did (s.30). The response was that the CEO would be obliged under s.68 to refer to all rep bodies and the like (although this is not specified at present). The reason for specifying the relationship between the NT Rep Bodies and the ACMC was that the relationship is currently unclear.

·  We asked if the Amendment was designed to work with any other Acts eg State/Federal EPBC Acts, but the answer was that it was only intended to work with the ATSIHP Act (Commonwealth).

·  We suggested that the DAA develop local and regional expertise to enable more accurate assessment, and suggested strengthening regional offices or assessment teams, but there was reluctance on this issue. DAA head office staff may be unwilling to devolve responsibility; they insisted they had good enough relationships and capacity to address regional issues from head office.

·  Aaron suggested that heritage consultants who adapted to the changes would be in a good position commercially because they would be able to explain them to clients. This seems obvious but contradicts claims that consultants won’t be needed in future (DAA publicity – need to locate).

In summary the changes were presented as inevitable and not easily modified (ie we might only look forward to offering tweaks). We expressed our disappointment with not being consulted on this process earlier; the DAA position is that the government did not see these as extensive changes so limited consultation was required. We noted that other interest groups had been consulted, e.g. miners, but not heritage professionals or Aboriginal corporations, at least not formally. DAA staff did not dispute this view. Whether or not we should have been consulted earlier, it is also disappointing that no-one has taken advantage of the opportunity to improve the parts of the Act that we have consistently criticised, e.g. s5. There may be some improvements in processes, but seeing the new regulations, and ensuring better resources and expertise, are key.

Joe Dortch, Fiona Hook, Eddie McDonald

7 July 2014