Home›Questions on Notice›QoN 1254

❓ A parliamentary question regarding the consistency of WA's Aboriginal Heritage Act 1972 with federal legislation (Native Title Act 1993 and Racial Discrimination Act 1975), particularly concerning appeal rights and potential discrimination. The Minister's response largely deflects, stating no legal challenges have been raised and referring to pending amendments.

AnsweredQoN 1254Legislative Council

Asked

17 June 2014

Member

Hon Robin Chapple

Portfolio

Aboriginal Affairs

QuestionView source ↗

I refer to the Minister's media response to ABC Kimberley journalist, Erin Parke on 31 March 2014 and to an academic paper by lawyer, David Ritter titled 'Trashing Heritage' and published in Studies in Western Australian History in 2003 regarding proposed amendments to the Aboriginal Heritage Act 1972 (AHA) , and I ask: (a) is the Minister aware of the legal opinion that asserts that the AHA is inconsistent with the Federal Native Title Act 1993 (NTA) and the Federal Racial Discrimination Act 1975 (RDA) : (i) if no to (a), why not; and (ii) if yes to (a), how does the Minister intend to address the situation; (b) has the State Solicitor's office provided the Minister with advice on the matter: (i) if no to (b), why not; and (ii) if yes to (b), what was that advice; (c) if yes to (b), will the Minister table the advice: (i) if no to (c), why not; (d) do the current provisions of section 18 of the AHA breach the RDA by permitting a developer the right of appeal but not the Aboriginal custodian of the site in question: (i) if no to (d), why not; (e) has the Minister sought legal advice on this matter: (i) if no to (e), why not; (ii) if no to (e), will the Minister now do so: (A) if no to (e)(ii), why not; (iii) if yes to (e), what was that legal advice and will the Minister table it: (A) if no to (e)(iii), why not; (f) will the Minister introduce amendments to section 18 of the AHA allowing Aboriginal parties the same rights of appeal as those enjoyed by developers: (i) if no to (f), why not; and (ii) if yes to (f), when will this occur; and (g) will the Minister introduce amendments to the AHA to make it consistent with the NTA : (i) if no to (g), why not; and (ii) if yes to (g), when will this occur?

AnswerView source ↗

Answered

12 August 2014

Responded by

Minister for Aboriginal Affairs

Response time

56 days

a) The Honourable Member does not make it clear which legal opinion he is referring to. Mr David Ritter's 2003 article, to which the Honourable Member refers, does not appear to offer an opinion on whether the Act is invalid by being inconsistent with Commonwealth legislation.
(i) Not applicable.
(ii) Not applicable.
(b) I have not been provided with any advice from the State Solicitor's Office on this matter.
(i) Legal advice has not be sought on the issue as no aggrieved party has ever raised this issue in a legal challenge.
(ii) Not applicable.
(c) Not applicable.
(i) Not applicable.
(d) - (e) Legal advice has not been sought on this issue as no aggrieved party has ever raised this issue in a legal challenge.
(f)- (g) The proposed amendments to the
Aboriginal Heritage Act 1972
are contained in the
Aboriginal Heritage Amendment Bill 2014
which is currently available for public comment.

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