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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-03-23 Daily Xml
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Aboriginal Heritage Act

The Hon. S.G. WADE (14:20): I seek leave to make a brief explanation before asking a question of the Minister for Aboriginal Affairs and Reconciliation about Aboriginal heritage.

Leave granted.

The Hon. S.G. WADE: On Monday 21 March, the President of the Law Society, Mr David Caruso, wrote to the minister to express the society's concerns in relation to the Aboriginal Heritage (Miscellaneous) Amendment Bill 2016 and to seek clarification on certain matters. The letter states in part:

The Society is concerned about the reported lack of consultation with the Aboriginal community in the drafting of the Bill. The Society also notes the absence of consultation with us on the Bill as presented to the Legislative Council.

At the end of the letter Mr Caruso refers to a particular matter, to a decision of the Full Court of the Supreme Court in Starkey & Ors v State of South Australia, and it concludes with the following statements:

We seek clarification as to the impact of the Bill on the order of mandamus directed to the Minister made in Starkey.

The transitional provisions of the Bill (Schedule, 1 clause 1) render a request for delegation void where a delegation has not been made. So the issues [stet] to which we refer is not addressed.

The bill passed the parliament yesterday. My question is: can the minister advise whether the government continues to have any existing and unfulfilled obligations arising from the 2011 decision of the Full Court of the Supreme Court of South Australia in the case of Starkey & Ors v State of South Australia and, if so, what effect the transitional provisions contained in the recent bill to amend the Aboriginal Heritage Act might have on those obligations?

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (14:22): I thank the honourable member for his question in relation to a bill that passed this chamber in the last few weeks. I note that the honourable member is interested in these matters, and I thank him for his contribution and some of the suggestions he made when debating that bill that I have taken up.

In particular, one of the suggestions from the honourable member was to meet with the Aboriginal Legal Rights Movement as the bill progressed from this place to another place—which I did take up; it was a very sensible suggestion. I met with the Aboriginal Legal Rights Movement last week before the bill was debated in the other chamber, and I have given a commitment to the Aboriginal Legal Rights Movement that I will continue to consult with them as we develop guidelines and regulations under the bill. I thank the honourable member for that very good suggestion in relation to that.

In terms of the matters that need a very specific legal answer, I will take them on notice. In terms of the absolute specific effect on a particular case, I do not want to give an answer that is not as complete as it should be. I will take that on notice, but if I can come back even before we meet again I undertake to inform the honourable member of the answer to that question. It is one that I suspect I know what the answer might be; however, in a matter that has a very specific legal answer I do not want to give an answer that may be incorrect. As soon as I am able I will come back either to this chamber or to the honourable member with an answer to that.

I note in the Starkey matter (and I do not have the quote in front of me) that this has been an ongoing piece of litigation over many years. The court has said a number of things but I do not have the particular quote—I think it was from Justice Sulan at one stage in the matter—in front of me. It was about the difficulties in the interpretation of section 6(2) and the commentary in effect suggesting that it is a matter for parliament to consider the wording in that section.

I think the words were 'because it is almost impossible to interpret what the parliament meant when it passed that'. I think section 6(2) was inserted as an amendment when the bill originally passed in 1988. That might be the reason why, in practical terms, it has been so difficult to work. With regard to the specific legal point of the interplay between the passing of that bill and that very specific case, I will find out the technical legal answer and bring it back to the honourable member.

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