Legislating away Indigenous Rights

Abstract

In January 1998, after two years of implementing the Howard government’s agenda in relation to various national and highly controversial issues, such as the granting of consent under the then World Heritage Properties Conservation Act 1984 (Cth) for the development of Hinchinbrook marina and resort, I was promoted to a senior policy position within the Office of Indigenous Affairs. This was the branch of the Department of the Prime Minister and Cabinet responsible for advising the Prime Minister and Cabinet on Indigenous affairs. It was a particularly contentious period for Indigenous affairs. The Office of Indigenous Affairs was conducting a review of policy development functions, and administration of the Aboriginal and Torres Strait Islander Commission (ATSIC); drafting the Native Title Amendment Bill 1998 in response to the High Court Wik decision; drafting the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 in response to the Hindmarsh Island Bridge affair; and managing matters relating to the Howard government’s decision to approve the construction of a uranium mine at Jabiluka within the World Heritage-listed Kakadu National Park. It also housed the Council for Aboriginal Reconciliation. I was assigned to a small legal policy team responsible for the preparation of the Aboriginal and Torres Islander Heritage Protection Bill 1998 that would repeal and replace the existing Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Our small team of three people was responsible for working with the Office of Parliamentary Counsel within the federal Attorney-General’s Department in preparing the clauses and content of the Aboriginal and Torres Strait Islander Heritage Protection Bill (‘the Bill’) and the Explanatory Memorandum. We were also charged with responsibility for liaising with the states and territories about specific sections of the Bill. The team prepared all parliamentary speeches, includingthe second reading speech that introduced the Bill into Parliament. While we were responsible for these tasks, we received our directions from the Prime Minister and Cabinet, including specific details about the objectives and intent of the legislation. Official and confidential Cabinet documents detailed this information. At the direction of the Prime Minister and Cabinet, bureaucrats designed the Bill to take a broader focus than simply Indigenous heritage protection. The Bill focused on balancing competing interests.