Submission to the Aboriginal Heritage Amendment Bill 2014

DR ELIZABETH GIBSON, General Manager of CMPA provides a report on the exposure draft submission for the Aboriginal Heritage Amendment Bill 2014 (the Bill).

THE CMPA recognises and respects the State’s Aboriginal Heritage and Culture and the need to preserve significant and important sites. The CMPA also supports responsible, balanced legislation which is in the best interests of the State. However, the CMPA has a number of major concerns concerning the Bill, some of which are detailed here:

Introduction of the Optional Preliminary Aboriginal Heritage Test (PAHT)

A person who prepares a PAHT must apply to the Secretary for certification of the test. The PAHT is to provide certainty to the proponent that a Cultural Heritage Management Plan (CHMP) is not required. However, whilst this test may provide certainty to CMPA members there is the concern Councils and DSDBI will require the test on every application thus adding to additional costs (in addition to the prescribed fee) to the proponents. CMPA recommendation:

1.This process should be tested by Sponsors, councils and technical heritage officers prior to finalisation of the legislation.

2.The Bill must contain appeal rights on the Secretary’s decision and address the concern that the test will effectively become mandatory for all applications.

3.Once implemented the process should also be audited.

4.If subsequent to a sponsor operating without a CHMP dueto a PAHT not requiring it, then the decision of the PAHT should stand.

Proposed Activity Advisory Group (AAG)

An AAG may be appointed by the Secretary where there is no Registered Aboriginal Party (RAP). Whilst this may lead to a reduction in time and costs, a clear line of accountability for the AAG needs to be established.
CMPA recommendation:

5.The Bill should contain clear lines of accountability to the Secretary for an AAG and adherence to the same statutory timeframes as applicable to RAPs.

Introduction of prescribed fees

The Bill is proposing the introduction of prescribed fees for example for RAP evaluation of a CHMP. CMPA does not support the need for cost recovery for what is an already very costly process. Care should be taken to ensure RAPs do not excessively depend on fees for evaluating CHMPs. CMPA recommendation:

6.The activity of evaluating CHMPs should be funded by the State Government.

Additional range of penalties

Additional range of penalties have been inserted including: failure to prepare a CHMP and failure to not comply with an approved CHMP. The criminal liability of officers of bodies corporate – failure to exercise due diligence. Where a body corporate commits an offence under the Act, an officer of the body corporate also commits the offence. The CMPA understands the need to have a robust enforcement framework, however, this is an excessively punitive approach which, if results in more convictions, would be completely
counter-productive. CMPA recommendation:

7.The CMPA does not support an expanded range of offences – a more facilitative and educational approach is warranted to ensure protection of Aboriginal heritage.

Aboriginal Heritage Officer (AHO)

CMPA does not support the appointment of AHOs. CMPA recommendation:

8.If AHOs are introduced there must be a clear line of accountability to the Minister and procedures for ensuring ethical conduct, training in administering legislation and so on in addition to a time limit on their appointment.

24 hour stop work orders

Introduces 24 hour stop work orders which can be issued by an AHO (and an Authorised Officer – replaces inspector) including heavy penalties and indictable offence. Previously, these stop work orders could only be issued by government inspectors. A potential conflict of interest can occur in which the AHO (that is RAP officer) is both the assessor and regulator. CMPA recommendation:

9.CMPA does not support the concept of AHOs issuing 24 hour stop work notices.

Improvement notices

Introduces improvement notices can be issued by an AHO (or Authorised Officer) including heavy penalties and indictable offence. Amendments to improvement notices can also be made. CMPA recommendation:

10.CMPA does not support the concept of AHOs issuing improvement notices.

In the Victorian Government Response to the Parliamentary Inquiry into the establishment of and effectiveness of RAP May 2013, the Victorian Government states the Victorian system is widely recognised in Australia as being best practice. It goes on to say there is certainty for industry with an efficient and effective best practice system. The CMPA is of the opinion this is not the case. There are a number of issues which have not been addressed by the Bill, including:

• Costs and delays in the CHMP process – the average time for a CHMP approval is 9.5 months;
• Lack of a prompt and binding arbitration mechanism;
• RAPs delay the process;
• Triggers for CHMPs – inaccurate or excessive mapping of cultural heritage sensitivity;
• Excessive penalties and enforcement;
• Mandatory public reporting of the total cost for each approved CHMP with a breakdown between the RAP fees and consultants’ fees and the time taken for the conduct and approval of the CHMP;
• An economic impact statement needs to be conducted.

  The full submission will be available on the CMPA website www.cmpavic.asn.au shortly.

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