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The amendments relate to Aboriginal cultural heritage regulation, the management of Aboriginal-owned parks, reserve management, wildlife licensing and improvements to the enforceability of this legislation. The Aboriginal cultural heritage amendments are the more significant amendments in the bill. These amendments offer the first steps in the reform and modernisation of Aboriginal cultural heritage regulation in New South Wales, which has remained largely unchanged for more than 30 years.The Government has announced a broad reform process and consideration of new standalone legislation in New South Wales to protect Aboriginal cultural heritage. The proposal for new standalone legislation will be developed within a two-year period by a working party comprised of representatives from both government and community groups. In the meantime, the bill's amendments are an important first step to address enforceability issues and bring the offences and penalties relating to Aboriginal cultural heritage in line with other environment protection legislation.The bill introduces a new two-tiered system for Aboriginal cultural heritage penalties. The first tier of penalties is for the two most serious offences, where a person knowingly harms or desecrates an Aboriginal object or harms or desecrates an Aboriginal place. The new increased penalties for tier one offences will address instances such as occurred during a recent prosecution in the Land and Environment Court. The defendants pleaded guilty to deliberately damaging a significant Aboriginal midden on their property. Prior to damaging the midden the defendants rang the local national parks office to find out the maximum fine for knowingly damaging Aboriginal objects. When they found out how low it was they decided to blatantly break the law by relocating the midden and they then commenced development work on the site. While the defendants pleaded guilty and were convicted and fined, each defendant was fined only $400. In sentencing, the Land and Environment Court noted that the maximum fine for the offence was only $5,500 for an individual, which was much lower than for other environmental offences, which can attract fines of up to $5 million. The court took this as a signal that Aboriginal cultural heritage offences are considered by Parliament to be less serious than other environmental offences. This legislation redresses this historic anomaly in our laws and brings them more in line with other States, such as Queensland and Victoria, where the maximum penalties for harming Aboriginal cultural heritage can be up to $1 million for corporations. The second tier of offences, which attracts a lower penalty, imposes strict liability. For these offences, the prosecutor is required only to prove the act of harmthere is no requirement to prove knowledge or intent. The main defence for the strict liability harm Aboriginal object offence is due diligence. Due diligence involves the taking of reasonable and practicable measures to determine whether an activity will harm Aboriginal objects and whether an application for a permit should be sought. Maximum penalties apply for offences by individuals where the offence is committed in aggravated circumstances. This is defined as a second or subsequent offence or where a person has acted for financial gain. Lower penaltiesfor individuals onlywill apply where there are no aggravating circumstances.The Department of Environment, Climate Change and Water, together with an interagency working group, has developed a due diligence code of practice in order to provide detailed guidance on the steps that people should take in the due diligence process. Industry-specific codes of practice that deal with due diligence for Aboriginal cultural heritage can be considered for adoption under the regulation and will also confer a due diligence defence. The due diligence defence does not apply to the strict liability offence of harm to an Aboriginal place, as Aboriginal places are culturally significant sites that are publicly notified through the Government Gazette, the Department of Environment, Climate Change and Water website, and signage at the location. In New South Wales there are presently 70 declared Aboriginal places, which are assessed for their special cultural significance to Aboriginal people before declaration by the Minister and protected under the National Parks and Wildlife Act 1974. Appropriate exemptions and defences for emergencies, bushfire hazard reduction work, the carrying out of Aboriginal cultural activities and low-impact activities have also been included in the bill and proposed regulations.In addition to the offences and penalties amendments, the bill contains amendments to provide greater clarity and certainty to applicants for Aboriginal cultural heritage impact permits. A single more flexible Aboriginal heritage impact permit will replace the current dual permit system. There will no longer be a requirement to obtain a permit when surveying for Aboriginal objects if the activity is undertaken in accordance with an archaeological code to be prescribed by the regulations. These new procedures will reduce the red tape associated with the management of Aboriginal cultural heritage. There will now be clear and definite heads of consideration for the processing of Aboriginal heritage impact permit applications. This will provide applicants with more certainty as to how their application will be assessed. Provisions for the transfer, variation, suspension, revocation and surrender of permits have also been included. Consultation requirements with Aboriginal people relating to permit applications will now be statutory requirements prescribed by the regulation. This will give certainty to both applicants for permits and Aboriginal communities about the consultation process. The existing policy guideline has recently been updated and it further explains these regulation requirements.The proposed Aboriginal heritage amendments in this bill will deliver important wins for business in red tape reduction through a streamlined and flexible permit process that will reduce costs and save time. Amendments are proposed to assist the operational efficiency and effectiveness of Aboriginal-owned parks. In New South Wales, about one-third of the parks estate is subject to formal joint management arrangements with Aboriginal people. One very innovative type of joint management are the nine parks that have been handed back to Aboriginal owners and leased to the Government for management as a reserve under part 4A of the National Parks and Wildlife Act 1974. In order to continue the success of these Aboriginal-owned parks, machinery amendments are required to provide clarity around issues relating to constitution and procedure of boards of management, lease variation, exclusion from liability for board members acting in good faith and the application of plans of management for the reserve.Another important amendment relating to part 4A reserves will be changes that allow for a park of a different reserve category to be added to an existing part 4A park. This will ensure that the most appropriate reserve category can be designated for the additional land. The bill also contains a number of provisions relating to the administration of wildlife management and licensing under the National Parks and Wildlife Act 1974. Amendments have been included to clarify directions that can be given in relation to protected fauna. There is a proposed new offence for the sale of untagged protected native plants. The bill also allows the Department of Environment, Climate Change and Water to recover costs incurred in providing public health and building services in national parks such as Kosciuszko National Park. Such charges will be at similar levels to local government charges. Charges will be levied on commercial operators within the park only in order to recover the department's costs for municipal and associated services. The charges will not affect park entry fees. The bill also includes minor amendments relating to the adjustment of road boundaries in parks. These amendments are required to improve the management and administrative arrangements relating to roads and boundary adjustments in national parks and to remove ambiguity in the current legislation. The bill provides for the adjustment of park boundaries that adjoin public roads so as to align the boundary on paper with the actual roads as surveyed on the ground. These amendments will enable the Minister for Climate Change and the Environment to use gazettal notices to include within the park the land removed from the road corridor on paper and then exclude from the park the land that becomes part of the road corridor. These road adjustments will be vested with the same road authority that currently manages the road. The bill also makes minor amendments to the wildlife management provisions including streamlining the licensing requirements for kangaroo chillers, removal of defunct aviary registration certificates, extending the duration of directions relating to protected fauna from 24 hours to 28 days, and requiring tags for protected flora to stay with the plant throughout the supply chain.The National Parks and Wildlife Act 1974 contains a wide range of provisions for the management of national parks and other reserves, and for wildlife management and the conservation of threatened species and Aboriginal heritage. The proposals in the bill bring the compliance and enforcement of these provisions into line with existing and more modern provisions, such as those contained in the Protection of the Environment Operations Act 1997. The bill also introduces remediation directions to repair damage to reserved lands, threatened species, endangered ecological communities or their habitats, Aboriginal objects and Aboriginal places. It strengthens the effectiveness of interim protection orders and extends the statute of limitations period to two years from when an offence came to the attention of an authorised officer. This is consistent with other compliance regimes. The remediation direction power will allow measures to be taken soon after an offence occurs, rather than under a court order as part of a prosecution. This will allow for quicker remediation that will allow habitats to regenerate and prevent further degradation such as weed infestation. The bill will streamline the administration of legislation, reduce red tape, provide consistency with similar environmental legislation and improve regulatory effectiveness.I will now focus on the issues that have emerged since debate on this bill in the other place. As a result of the continuing consultations with Aboriginal and other stakeholders, the Government will propose six further amendments to the bill in this place. The Government will propose a further amendment to the bill relating to requirements for consultation on any proposed regulations that seek to include or exclude certain matters from the definition of "harm" to Aboriginal objects and places. The Government has agreed to this amendment now also requiring the notification and public exhibition of any such regulations, and consultation on them with the Aboriginal Cultural Heritage Advisory Committee prior to their being made. The Government also will propose a further amendment to clarify the reference in the current bill to "financial gain" as part of the "circumstances of aggravation" relating to Aboriginal heritage offences. This amendment replaces the term "financial gain" with that of "commercial activity" to distinguish commercial activities and their consequences from the non-commercial activities of individuals.In consultation on the bill since it was debated in the other place, the Government has also responded to concerns from some stakeholders that the power in the bill to provide additional defences to Aboriginal heritage offences is seen by them as being too wide. While the Government considers that flexibility is needed to enable workable solutions to be found to any issues that may arise during implementation of the new Aboriginal heritage offence provisions, it now proposes an amendment that limits the power to prescribe additional defences by regulation. The Government agrees to limit any such additional defences to only low-impact acts or omissions, and to retain the requirement for consultation on any changes by regulation to those activities with the Aboriginal Cultural Heritage Advisory Committee.The Government also will propose a further amendment relating to the minimum standards proposed for codes of practice that may be prepared for certain activities or industries. The Government has now agreed that minimum standards should be in place before new codes of practice are adopted by the regulations. This is subject to a further amendment proposed by the Government for a savings provision that allows that the minimum standards do not apply to two existing codes that have been developed for private forestry operations. This is so the current codes relating to private native forestry and to the establishment of plantations can continue for the time being in their current form. These codes have taken considerable time to negotiate with the forest industries sector. It is important to note here that these codes will then be subject to the new minimum standards requirements when they are revised as part of their respective statutory reviews. The Government is committed to the further upgrading of these codes over time so that that due diligence standards as now provided for in the bill can be progressively maintained. Finally, the Government also will propose an amendment to the bill to allow the removal of unnecessary regulation-making powers in the Lord Howe Island Act. This was an issue raised in debate on the bill in the other place, and is rectified by this further proposed amendment. I commend the bill to the House.The Hon. CATHERINE CUSACK [8.37 p.m.]: The Government has presented the National Parks and Wildlife Amendment Bill 2010 to Parliament as an omnibus bill. That is a puzzling approach. Many of the minor reforms dealing with reserve management, wildlife licensing and the enforceability of the legislation could have been accommodated in a statute law revision bill. However, the Liberal Party and The Nationals certainly do not oppose the legislation. The major initiatives in the bill relate to the protection of Aboriginal heritage items. These comprise Aboriginal objects and Aboriginal places on both public and private land. In contrast with European heritage, which is neatly divided into two partsnatural and builtAboriginal heritage sees everything as connected. An item such as cave art has cultural value not merely in its own right but also in terms of its location and connection to the landscape. A midden is of significance not because of the shell remains contained within it but because of the accumulation of the remains, where it is located and its placement in the wider landscape, its connection to the ocean and the spirituality of the past activities that are evidenced by the existence of the midden.It is actually a far higher and more complex approach to heritage and culture than the European appreciation of past design and accomplishments. It is also an approach to heritage that we cannot mesh into other legislative actions or goals but which we can only try to respect and do justice to with our modern system of law by allowing for a separate framework that stands in its own right.In this regard the bill is an acute embarrassment not only to the Keneally Labor Government but also to Parliament as a whole, because the main purpose of the principle Act we are amending, the National Parks and Wildlife Act 1974, is the protection of native flora and fauna. This means the Government is asking Parliament to continue to regulate Aboriginal cultural heritage under an Act that was made to protect plants and animals. Understandably, this approach is grossly offensive to Aboriginal people. Indeed, the New South Wales Aboriginal Land Council's 2009 submission to the review of the Act is titled "More than Flora and Fauna". The submission, which is outstanding in its research and presentation, calls for new legislation that recognises the need to separate laws protecting Aboriginal culture. The Liberal and National parties certainly recognise the indignity of the current situation; we are dismayed the Government has failed to act on this modest request. We pledge our support for this aspiration. To this end, a future O'Farrell Government would remove all references to Aboriginal heritage in the National Parks and Wildlife Act and relocate these laws and regulations into a new Aboriginal Heritage Act. The Act would not be administered by the director general of the environment department, but rather by the new Heritage portfolio relocated out of planning, and reporting newly created position of Minister for Heritage. In seeking to minimise its embarrassment, the Government makes the lame claim that what we have before us tonight is the first step of a larger reform process, which will culminate in a separate Act for Aboriginal Heritage. Given that we appear to be experiencing the death throes of a 16-year Labor Government, the idea that the Minister is suddenly commencing a reform process that should have been undertaken a decade ago rings hollow. There is nothing in the bill and little in the Minister's speech to substantiate the bland assertion that a reform process is underway at all. Rather than heralding the beginning of wider reforms, the bill tries to repair defects in the 2001 amendments which have resulted in key provisions concerning Aboriginal heritage being so deeply flawed that they have been left comatose in the ministerial in-tray for most of the past decade. This has meant fines remained stuck at $5,500 for individuals and $22,000 for corporationshardly a deterrent for those who steal or destroy Aboriginal heritage items. Indeed, the business case for going ahead in a deliberate and wanton way to destroy Aboriginal heritage items is very strong given such measly penalties. The New South Wales scheme of regulation has been a farce in terms of outcomes. It has left Aboriginal heritage virtually unprotectedeasily the weakest in Australiain spite of the fact we have the largest population of Aboriginal people, who populated the entirety of the State prior to European settlement. We have arguably the greatest obligation and unarguably the weakest response. My colleague in another place the member for Castle Hill has worked hard for many years to highlight the problems and focus attention on the pressing need to proclaim the 2001 legislation. On the other hand, those hundreds of thousands of responsible landowners who want to do the right thing have been hog-tied with red tape that is ineffective in stopping the rogues and fails to provide clear guidance as to how to do the right thing. This is the worst of all worlds. This is quintessential New South Wales State Labor governance. We have consulted extensively with all stakeholders. The vast majority of landholders and, indeed, their representatives in property development, agriculture and mining have indicated they do not wish in any way to destroy or inadvertently harm Aboriginal heritage. The Urban Development Task Force, New South Wales Farmers and the New South Wales Minerals Council have all indicated support for a separate Aboriginal Heritage Act. The removal of Aboriginal heritage responsibilities from the Department of Environment, Climate Change and Water was viewed positively. The department appears to dislike its own responsibilities in this matter and thus administers them poorly. The National Parks and Wildlife Service specialises in natural heritage and is focussed on managing public reserves. Aboriginal heritage on private property sits oddly with this focus. Our landholders request is for a manageable process for identifying and protecting items located on their properties. The system of determining protection costs far more than the protection itself. It is a ludicrous situation. Landholders want to improve the system with greater certainty in terms of the definition of an item, who needs to be consulted and determinations that make the process finitea process that never ends, where decisions are never final, can destroy the security of the asset such that banks, for example, will not lend money and all productive activity is blocked. If the answer is "No you can't touch that item or that part of your land," it is much better to arrive at that answer in a timely process. The worst of all worlds is a prolonged and expensive system of investigations and disputes that ends with a "Maybe yes". These people are large and small businessmen or professional investors who are simply seeking clarity as to what land or bits of land are encumbered and what is unencumbered. The current system does not understand their needs. These are not people to be feared in terms of destruction of Aboriginal heritagethey are simply frustrated by the cost of not knowing where and how to preserve items on their properties. The rogues who ought be despised by every thinking Australian are those who exploit Aboriginal heritage for personal profit; who know they are stealing or destroying items and shamelessly do the maths on the likelihood of getting caught and the flimsy penalties that apply and then just proceed on a course of illegal destruction of Aboriginal items. These people have been able to do virtually what they like because of the flawed 2001 legislation. In addition, Aboriginal people have had to put up with their artefacts being stolen from their proper place and sold in Australia and overseas on the internet. Again the National Parks and Wildlife Service has seemed impotent to stop this shameful practice. We also have the problem of Aboriginal artefacts, including the remains of their ancestors, being exhibited or stored in museums and private collections overseas, and we as a society have defaulted on the strongest imaginable moral obligation to retrieve these items and return them to their rightful owners. How can fine speeches about reconciliation, respect and dignity be taken seriously when such Aboriginal heritage is treated with such indecency and disregard? The Government has been well aware of the problems and at least four environment Ministers have presided over reviews of the relevant part 6 of the principal Act. The latest one ended mid last year. The New South Wales Aboriginal Land Council made its submission, "More than Flora than Fauna", and I acknowledge the authors, particularly Sylvie Ellsmore, for an outstanding and measured contribution to this difficult discussion. There was a painful clarity in the factual way the submission explained we do not have in place a system of Aboriginal heritage protection in this State, but rather a system of regulating its destruction. Part 6 is all about the issue of permits to destroy and the defences and penalties associated with the destruction where a permit has not been issued. It is noted all Aboriginal heritage is categorised as being the property of the Crown, and this is a matter of profound sadness to Aboriginal people, who understandably want to lay claim to their own culture. The current position sees the director general of the Department of Environment, Climate Change and Water as effectively the custodian, with responsibility to issue permits known as Aboriginal Heritage Impact Permits and authorise prosecutions for unauthorised desecration or destruction. The department is a poor keeper of records. The Aboriginal Land Council has pulled together what is known. I acknowledge some of this information has been obtained from parliamentary questions asked by Michael Richardson MP and Mr Ian Cohen. Between 2003 and 2008 there were only seven prosecutions for illegal destruction of Aboriginal heritage. In the 12 months prior to October 2008 no stop-work orders or interim protection orders had been issued. Between 1990 and July 2007 approximately 800 section 90 permits authorising destruction were issued by the director general, Between 2004 and May 2009, 958 section 87 permits to damage and section 90 permits to destroy were issued. A quarter of the permits issued between 2007 and 2009 were issued to the State Government itself. The largest number were issued to the Roads and Traffic Authority and the second-largest to the Department of Environment, Climate Change and Water. This highlights the conflict of interest the director general has, as the person responsible for protecting Aboriginal heritage, while at the same time being responsible for issuing permits for its destructionand many of these permits are issued to the director general's own department. On behalf of the Liberal and National parties I express our strong support for the Aboriginal Land Council recommendation: NSWALC calls for the urgent collection and release of comprehensive data on the approval of AHIPs, including how many are issued and who they are issued to. Proper record keeping and data collection needs to be instituted by the department to rectify the remarkable lack of accountability to the Aboriginal community. I find it sickening that the Aboriginal community have to plead such a request. Any doubts I had concerning criticisms of the Department of Environment, Climate Change and Water and its fitness to carry such important responsibilities are resolved by this appalling situation. I do not care what excuses the department finds for failing to inform the Aboriginal community of its decisions. It is simply reprehensible, unacceptable and indefensible that this has happened. <31>The submission also made very clear, on page 11, in the highlighted text: NSWALC opposes the introduction of culture and heritage law and policy where it has been developed without proper consultation with the Aboriginal community. NSWALC calls on the NSW Minister for Environment and Climate Change to commit that no new laws or regulations relating to Aboriginal culture and heritage will be introduced or implemented without proper consultation with NSWALC and other relevant bodies. It is unimaginable that such a request would be ignored, but that is exactly what happened with this bill, which was introduced to Parliament without prior consultation with or the support of the Aboriginal community. I do not understand and I cannot comprehend how this State Labor Government came to authorise legislation about Aboriginal heritage that did not have the support of the Aboriginal community, but that is exactly what happened. This bill was not supported by any of the other stakeholders either. With nobody supporting the bill and a large number of legitimate grievances about adverse and contradictory impacts arising, the Opposition resolved to oppose all sections of this bill concerning Aboriginal heritage. This was a big step but the Government's approach was so amazingly ham-fisted and controversial that we felt that we had no alternative.The bill then stalled in the Legislative Assembly for more than a month and in the days before it was due to be debated the Government started suddenly negotiating and amending its own legislation. Ultimately Minister Sartor moved 16 wide-ranging amendments to his own bill, which stakeholders agreed on balance improved the legislation. Some amendments cleared up typographical errors; one created appropriate exemptions and defences to allow firefighters to conduct hazard reduction; another limited the proposed power of the Director General to unilaterally rewrite permits. This change was sought by all parties, particularly landowners who want certainty in the permit system. Clarification of the register and how it will work was also welcome. I take the opportunity to note that the register is still not ready and is not expected to be operational until September or October. Unimpressive. This allows a six-month delay between the passage of the bill and its ability to become fully operational. I hope this period of limbo is not abused. The Aboriginal community sought the deletion of a proposed new section 90S, which would have read: Certain Aboriginal objects lawfully destroyed taken to no longer exist (1) If: (a) an activity to which an Aboriginal heritage impact permit relates has been, or is being, carried out, and (b) the permit authorised an Aboriginal object to be destroyed, the Aboriginal object is taken not to be an Aboriginal object for the purposes of this Act. The example that was provided in proposed section 90S itself provides an excellent reason why proposed section 90S is necessary. It states: For example, if an Aboriginal shell midden is lawfully broken up or dispersed in accordance with an Aboriginal heritage impact permit that authorised its destruction and there remains debris leftover, the debris is taken not to be Aboriginal objects for the purposes of the Act. Therefore, further Aboriginal heritage impact permits are not required in order to later deal with that debris. This provision was strongly opposed by the Aboriginal community and has been removed. The Opposition would have preferred it remain, however since it was a new provision and not an existing one, and it facilitated overall improvements to the legislation, we resolved not to oppose. The most contentious provisions in the bill are the creation of a two-tier system of offences. The second tier is strict liability where the destruction is proved, and there were virtually no defenceseven honest and reasonable mistake had been excluded. We received strong representations from farmers and developers that this amounted to absolute liability and would result in manifestly unfair actions against landholders and/or have the effect of sterilising large tracts of land. We could not have supported this change. The Minister rather unexpectedly amended his own bill to restore the common law defence of honest and reasonable mistake of fact. This was a vast improvement on the previous position and I believe rectifies a key problem in the earlier version of the bill. The first tier offence is more serious where intent can be proved. The member for Coogee outlined the case of Histollo Pty Ltd v Director of National Parks and Wildlife where what seemed to be a clear-cut case of intent was overturned in the Court of Criminal Appeal. The court ruled that reckless indifference causing damage is insufficient. The prosecution also had to prove the defendant had knowledge of the artefacts. The effect of this ruling has been to create an incentive for people to stay deliberately ignorant, to refuse to undertake the necessary studies and to evade responsibility for their actions. I do understand the need to close this loophole. However, I must point out that the case quoted by the Government was a 1992 case and the existence of the loophole has been known for the entire term of the Labor Government. We do not want to ever see a repeat of the notorious Histollo case and we support the closure of this loophole. We just wish it had been done a lot earlier.For landholders key provisions in the bill exempt land that has been disturbed by previous activity including ploughing, urban development, and rural infrastructure such as dams and fences, roads, trails and walking tracks. While the bill toughens liability and penalties, these provisions spelling out commonsense exemptions including virtually all existing-use farming activities will protect farmers from virtually all the impacts of the bill. A very small number of farmers who may be impacted are those undertaking land clearing operations, which are high impact and involve change of use. It is not unreasonable to expect due diligence to be undertaken in relation to Aboriginal heritage on such land. A very important measure in the bill relates to Aboriginal management of national parks, and these are supported. These provisions are supported by the National Parks Association. Carmel Flint introduced me to Stephen Ross and we discussed arrangements for co-management in national parks. Carmel and Stephen subsequently organised for me to visit Wattleridge farm north of Guyra, which is a 480-hectare Indigenous Protected Area owned and operated by the Baanbai traditional owners. Tanya Cutmore and her team at Wattleridge generously took me on a tour of the property and I was deeply impressed by their organisation, training, care and pride in country and the wonderful results of their important conservation work. There was a huge sense of fun and accomplishment. In fact, it was without doubt the most inspiring visit I have undertaken in seven years in Parliament. Not many have had the opportunity to visit Wattleridge and I commend it as a method of enriching both local indigenous communities and the environment. On behalf of the Liberal and National parties I thank all stakeholders for their time and patience in the complex discussions concerning this legislation, including Aaron Gadiel of the Urban Task Force, Charles Armstrong of the New South Wales Farmers Association and Sue-Ern Tan of the New South Wales Minerals Council. I particularly thank them for responding almost overnight when the Minister suddenly released 16 unexpected amendments. Their efforts facilitated a consultative and responsible position, which was ultimately to not oppose the package of amendments and not oppose the bill. I note with considerable unhappiness that there are now six more Government amendments, of which I was unaware. In terms of the whole spirit in which this matter has been conducted I can only express my disappointment that this has occurred. I note that the Government amendments were only circulated in this Chamber after the second reading speech had commenced. It is an appropriate finale perhaps to the way in which this whole matter has been conducted.I believe the position we took initially in opposing the Aboriginal heritage provisions in the flawed earlier version of the bill contributed to the pressure to improve the legislation and there is some measure of satisfaction that the bill has been improved as a result of those efforts. I have received advice from Danielle Bevins at the Native Title Corporation and Sylvie Ellsmore of the New South Wales Aboriginal Land Council that with the changes the bill on balance improves the situation and is now supported by the Aboriginal community. No doubt that has been a great relief to the Minister. It is certainly of significance to us. The passage of this bill has been an embarrassment to the Parliament and a great deal of work and reform lies ahead to get the framework right for all the stakeholders. I am optimistic that there is goodwill to improve the situation. Landholders' main concern is fairness in the compliance process. The Aboriginal community have said that they are less interested in compliance and more interested in protection and celebration by all Australians of their cultural heritage. At the very least the provisions we are dealing with tonight must all be removed from the National Parks and Wildlife Service Act and re-enacted in separate Aboriginal heritage legislation. One positive outcome of this awkward legislation is that the will to do this has been strengthened and hopefully an outcome will be achieved within a reasonable time frame. Before I conclude my remarks I seek the Government's advice on one more issue that has arisen since the bill was introduced. It relates to the part of the bill that gives the Government the power to levy leaseholders in Kosciuszko National Park in order to fund the provision of municipal services. I note that last month, in a fairly extraordinary case, the Department of Environment, Climate Change and Water prosecuted itself in relation to a breach of its own licensing conditions and environmental rules in Kosciuszko National Park.<32>There was an incident in which a worker, for some reason, decided to pump 151 kilolitres of partially treated effluent into Perisher Creek. Justice Pain of the Land and Environment Court accepted the guilty plea of the Department of Environment, Climate Change and Water, which prosecuted itself under the National Parks and Wildlife Service Act and funded both sides of the court case ultimately. The department was fined $80,000 plus $65,000 in costs.I note that Justice Pain directed that the $80,000 go to the Southern Rivers Catchment Management Authority for riparian rehabilitation and exotic tree removal along Thredbo River. She ordered also that the funds not be removed from the annual funding of the catchment management authority received from the department but, rather, be an additional amount. I seek an assurance from the Minister that the payment of the $80,000 fine, the $65,000 costs, and the considerable costs of running their own court case on the losing side of the debate will not be imposed on leaseholders in Kosciuszko National Park, who are obviously as much innocent victims as everybody else in this sorry episode.Mr IAN COHEN [9.01 p.m.]: First, I pay my respects to the traditional custodians of the land on which we meet, the Gadigal people of the Eora nation. On behalf of the Greens I debate the National Parks and Wildlife Amendment Bill 2010. I state at the outset that the Greens will not oppose the bill if Government amendments are successful. The Minister has already made substantial improvements to the original bill in the Legislative Assembly and further amendments will tighten up the remaining areas of concern. The Minister has come some way to accommodate the concerns of the New South Wales Land Council and Native Title Service Corporation. While not amending the bill to the full satisfaction of the Greens, the New South Wales Land Council and the Native Title Service Corporation, we should recognise that Minister Sartor has made some important concessions.Unfortunately, points of disagreement have been irreconcilable between what the Greens expected in terms of amendments and the boundaries of the Cabinet minute tainted by none other than Minister Ian Macdonald. As such, we are not in a position to actively support this bill. The National Parks and Wildlife Amendment Bill 2010, known as the omnibus bill due to the range of provisions it amends within the National Parks and Wildlife Act, makes changes to protection of Aboriginal objects and places, refines management of Aboriginal lands reserved under part 4A of the Act, enhances stop work order powers and establishes stronger penalties for offences.More broadly, it places the National Parks and Wildlife Act on a similar regulatory footing to the Protection of the Environment Operations Act in terms of prosecutorial powers. We should note that the Aboriginal heritage provisions of this bill are only interim measures. The provisions are a stopgap measure while we prepare to transition to an Aboriginal Heritage Commission whereby Aboriginal communities have control of their history and heritage. I would ask the Parliamentary Secretary to confirm that the Director General of the National Parks and Wildlife Service division, Ms Sally Barnes, has been travelling across New South Wales meeting Aboriginal communities over the last few weeks and advising them that the next two years are about establishing such a framework. There is no mention of this new interim bill in Ms Barnes' presentation. If Ms Barnes is doing this, we should expect strong commitment from the Government in this House in relation to its desire to establish an Aboriginal Heritage Commission.This bill is in large part a response to the escalating destruction of Aboriginal heritage in New South Wales. Joel Gibson's article in the Sydney Morning Herald on 2 April 2009 about the theft and subsequent sale of Aboriginal objects on eBay highlighted the most insidious element of not allowing Aboriginal people to protect their heritage. It is appropriate that we as members reflect on how we would feel if our family photo album or family heirlooms were stolen from our home and sold on eBay. We would be hurt and outraged. For many Aboriginal people, heritage items are one of the only connections with past generations. Destruction and harm of Aboriginal heritage erases that important link to family lineages and the past.Before I address the provisions of the bill, I want to discuss the historical context of Aboriginal heritage reform and examine the procedural processes involved in protecting and managing Aboriginal cultural heritage. In 1974 with the introduction of the National Parks and Wildlife Act the New South Wales Crown assumed, or some may say retained, ownership rights over Aboriginal heritage. By what mechanism, legal instrument or principle of law the New South Wales Crown appropriated elements of Aboriginal heritage is a mystery. Some may suggest that New South Wales Crown ownership rights over Aboriginal heritage objects and places flow from dispossession of land under the process of colonial conquest. Fortunately, we have a body of native title case law that would directly contradict such an interpretation and our jurisprudence has evolved to conceive a multiplicity or bundle of rights within a parcel of land.Again we ask the question: How did the New South Wales State obtain ownership rights over New South Wales Aboriginal heritage? More importantly, why has the director general not returned Aboriginal heritage items to Aboriginal owners as provided for under section 85A of the Act? We have created legal fictions that allow for the separation of real property rights from other elements of land such as minerals and harvestable crops. We give producers and miners the right to take away something from the soil of a landowner. We are sensitive to the rights of third parties to access the economic fruits of crops or minerals residing on private land. Our agricultural industries have expanded through the use of covenants and profit prendre rights. We see the use of such legal instruments as facilitating the most economic use of land. Our legal system does not take the same approach to Aboriginal objects and places on private land embodying Aboriginal identity, history, spirituality and personhood.Through our legal system and our inability to reform laws pertaining to Aboriginal heritage we are perpetuating a continuing dispossession of Aboriginal heritage, identity and knowledge. Our system and laws are impregnated with the concept of terra nullius. Instead of ascribing the real legal protections and rights to Aboriginal heritage, an affirmation of Aboriginal cultural identity and history, we simply allow communities to express their concern through an administrative process about how landholders can treat their heritage. It is important that we reflect upon this point. The lack of logic or natural justice inherent in the New South Wales Crown's alleged ownership of Aboriginal heritage undeniably compromises the integrity of legislation that perpetuates this fallacious concept.While the normative laws of this State may say otherwise, the New South Wales Government does not own Aboriginal cultural heritage. Aboriginal communities and nations are the only true guardians and stewards of their history, knowledge, culture and heritage. In 1980 there were efforts to correct this egregious dispossession of Aboriginal identity and culture. The first report of the Select Committee of the Legislative Assembly upon Aborigines, also identified as the Keane report, recommended that a statutory body, the Aboriginal Heritage Commission, with elected Aboriginal representatives, be established to protect, maintain and manage sites and objects of cultural heritage significance.The inquiry recommended, in paragraph 14 (6) of its report, the creation of legislation to establish an Aboriginal Heritage Commission to manage sacred Aboriginal sites and the vesting of title of sacred sites in what are now identified as local Aboriginal land councils. It was the same inquiry that recommended the need to develop an Aboriginal land rights Act to facilitate the transfer of land as restitution for dispossession. What we should take away from this inquiry was that even 30 years ago, in a time when Aboriginal rights were still systematically denied, members of this inquiry found an appreciation of the connection between maintaining Aboriginal heritage and the moral demands of restitution for the dispossession of land.The committee understood that the path to reconciliation could not simply be a glorified land transfer. Reparations for infliction of great injustices on Aboriginal peoples required the embrace of a reconciliation process marrying reinvigoration of cultural identity and economic development, a protection of the roots of knowledge. As history shows and as Reverend the Hon. Fred Nile witnessed first-hand, the landmark legislation contained in the Aboriginal Land Rights Act 1983 was not accompanied by similar landmark reforms in protection of Aboriginal heritage. I would be interested to hear from Reverend the Hon. Fred Nile, who voted for the Aboriginal Land Rights Actand I appreciate his position in those early daysas to whether the lack of political maturity and bipartisanship shown by opponents of land rights contributed to reform on cultural heritage that has been left behind. Much more holistic land and cultural heritage rights reform may have been achieved had certain people truly appreciated the significance of the 1980 inquiry report and broader advocacy for civil and human rights by Aboriginal peoples.<33>Almost a decade after the Keane reports the New South Wales Ministerial Taskforce on Aboriginal Heritage and Culture reinforced the desire of Aboriginal peoples in New South Wales to reclaim and exercise ownership over their heritage and culture. Unfortunately, the report did not impress upon the Greiner Government the critical importance of establishing an Aboriginal Heritage Commission, or maybe Greiner chose not to listen. The failure of the Greiner and Fahey governments to address the need for reform continued through to the Carr Government. In 1995 the New South Wales Government started to reconsider the omission of cultural heritage reform from the original land rights legislation. A discussion paper produced by the Aboriginal Cultural Heritage Working Group for the then Minister for the Environment, the Hon. Pam Allan, reiterated the recommendation for an Aboriginal Heritage Commission. The green paper that preceded the discussion paper gave the Government of the day an unmistakable mandate to complete the original reform package. On page 4 the green paper states: Aboriginal People continue to be denied the right to manage their own heritage values, and as such, the expression of Aboriginal identity and self worth is governed by persons and systems which are not of that culture. In 2001 attempts were made to improve the way in which Aboriginal heritage was protected in New South Wales with the passage of the National Parks and Wildlife Amendment Bill. A provision in that bill made an amendment to section 90 of the National Parks and Wildlife Act to transform the offence of destroying an Aboriginal object into a strict liability offence by removing the word "knowingly". Even though the bill had the support of the New South Wales Parliament, successive Labor environment Ministers chose not to proclaim the amendment relating to section 90.In answer to a question asked last year, the Hon. Carmel Tebbutt explained that the amendment had not yet been proclaimed "due to concerns raised about the proposed strict liability offence of destroying, defacing or damaging an Aboriginal object or an Aboriginal place, and the need to provide guidance material as to the relevant defence of due diligence". The real reason for the Labor Party not enacting the will of the New South Wales Parliament is revealed in a ministerial briefing note written by the Department of the Environment and obtained in a freedom of information application that I made last year. One ministerial briefing note states: Since 1980, there have been a number of unsuccessful attempts at Aboriginal heritage reform, none proceeding beyond the draft Cabinet Minute stage. A number of minor Aboriginal heritage amendments were made in 2001. The most substantive of these, an amendment to section 90 of the National Parks and Wildlife Act to create a strict liability offence, has not yet commenced primarily due to concerns from the Cabinet office (TCO) and the NSW Minerals Council. A second ministerial briefing note further elaborates: Some of the 2001 amendments to Section 90 of the National Parks and Wildlife Act 1974 have note yet commenced, in part due to the concerns from the NSW Minerals Council that a new strict liability offence and due diligence provisions would adversely constrain the industry's exploration activities and management of mine buffer zones. The second ministerial briefing note goes on to recite the lament of the New South Wales Minerals Council in relation to the archaeological costs associated with the Warkworth Hunter Valley mine extension. The ministerial briefing note, which was signed off by the Minister of the day, showed a paranoid sensitivity to affecting the magnitude of profitability of mineral exploration in New South Wales, yet an unyielding failure to protect adequately Aboriginal heritage. There was no policy balance, just the demands of the New South Wales Minerals Council. The lack of policy balance in protecting Aboriginal heritage is evident when we tackle the thorny questions of probity and integrity in relation to the issuing of Aboriginal heritage impact permits.As one is accustomed to finding, the same nexus between part 3A applications and political donations permeates the Aboriginal heritage permit approval process. I do not want necessarily to deal with that in great detail as I think we have all reached our collective threshold in the quagmire of political donations and the attempted perversion of Executive power. My office has compared permit application data and donations returns, and I will say that I find the timing of political donations, which directly correlates with Aboriginal heritage impact permits, as highly disappointing. The notion that certain development proponents think they can buy a right to destroy Aboriginal people's history and culture is repulsive and abhorrent.Companies like Abigroup, Australand Corporation, Buildev Properties, BHP, Coal and Allied Operations, the Cornish Group, Hunter Land Pty Ltd, the Johnson Property Group, Multiplex Constructions and Stocklands Development Pty Ltd, all gave substantial political donations concurrent with the applications for Aboriginal heritage impact permits. I think that these companies should consider whether they are acting consistently with their charters for social corporate responsibility and ethics by pumping significant funds into a political party to achieve some perceived favourable planning outcomes. I think they should most certainly advise their shareholders that they provide political donations concurrently with applications for permits to destroy Aboriginal heritage. These companies should be ashamed of themselves.The last 30 years have shown our State as unable to match its rhetoric on Aboriginal rights with its conviction for legislative reform on Aboriginal heritage. Certainly there has been progressor should we say inroad to progressin protecting Aboriginal heritage. However, it has not stacked up to the expectations in the community. After an Australian Prime Minister apologised for more than two centuries of discrimination against Aboriginal and Torres Strait Islander people how can we tolerate laws that carry on the flame of foregone colonial aspirations? The commitment from the Minister and the Opposition to remove Aboriginal heritage management from the National Parks and Wildlife Act and place it in standalone legislation that provides Aboriginal owners with the right to manage their own heritage is encouraging. I congratulate both major parties for making this commitment and I look forward to the development of an Aboriginal Heritage Commission.The bill before us attempts to improve the protection of Aboriginal heritage. There are members of the Cabinet who do want to protect Aboriginal heritage. I support their efforts. The general approach of this bill is to introduce a strict liability offence and to significantly increase penalties. The Greens strongly support that approach. However, with strict liability offences come new defences and regulatory determination of due diligence in managing Aboriginal objects. Our concernand I think the concern of manyis that poor due diligence standards that do not accord with the judicial concepts of due diligence and defences that go beyond the concept of honest mistake of fact will dilute the strict liability gains made by the bill. Depending on the exercise of Executive power under this bill, it may end up representing one step forward and two steps back. At this point the bill, with amendments, will represent an improvement. We will have to wait to see how Ministers use their power to evaluate this reform.Turning to the substantive contents of the bill, I will deal, first, with the provisions that relate to the management and protection of Aboriginal heritage. Proposed section 86 reproduces the offence of harming, damaging or desecrating Aboriginal objects, or places partially addressed in current section 90 of the Act. The proposed section creates three offences in relation to Aboriginal objects and places. Subsection (1) creates an offence of knowingly harming or desecrating an Aboriginal object with a maximum penalty of $250,000 and/or one year's imprisonment, and $1.1 million for a corporation. Subsection (2) creates a strict liability offence of harming an Aboriginal object with a maximum penalty of $50,000 for individuals and $200,000 for corporations. Subsection (4) creates an offence of harming or desecrating an Aboriginal place with a maximum penalty of $500,000 and/or two years imprisonment, and $1.1 million for a corporation.Subsection (3) provides for higher maximum penalties in relation to Aboriginal objects, and where it can be demonstrated there are circumstances of aggravated maximum penalties the penalties are generally doubled. In order for an alleged offender to be charged with an offence in circumstances of aggravation, the prosecution will have to demonstrate that the offender committed the offence for financial gain, or the offence was a second or subsequent offence under section 86. Subsections (6) and (7) provide for prosecutorial flexibility, allowing an accused to be prosecuted for an offence under subsections (1) or (2) in relation to one Aboriginal object or a group of Aboriginal objects and the variation of proceedings if the evidence is insufficient to make out the offence under subsection (1).This element of the bill is a significant improvement on the current legislation. We need adequate penalties to act as a deterrent to destroying Aboriginal objects. It is important to note that there have not been many prosecutions under the current section 90 (1) of the National Parks and Wildlife Act.<34>According to the department, between 2005 and January 2009 there had been only seven successful prosecutions under section 90. If this were the only indicator of maintenance and protection of Aboriginal heritage one could be misled into believing we are doing a good job. The reality is that we should interpret prosecutions with a degree of sadness and failurefailure in the sense that Aboriginal history, knowledge and culture containing ties to families and generations past have been destroyed and lost. Certainly, high penalties and appropriately designed offences enhance the deterrent effect.The Minister should be congratulated on this aspect of the bill, especially in light of the attitude of Minister Macdonald with regard to protecting Aboriginal heritage and his desire to derail this bill. However, the improvement in this aspect of the legislation should not distract us from the importance of the permit application process and the relevant due diligence framework. I say this because I do not want us to put undue reliance or emphasis on the prosecution of offences under the Act as the mechanism to protect Aboriginal heritage. It is an important element, but not the be all and end all of protecting Aboriginal heritage in New South Wales.It is important that we note that the principal maximum penalties in the consultation draft were double what we now have in the bill. I have no doubt that stakeholders such as the New South Wales Minerals Council and the Urban Taskforce expressed concerns about the penalty regime in the consultation draft. I suspect that these groups feel that potential exposure to these original penalties was excessive and unnecessary. In setting appropriate penalties we need to consider two aspects: the penalties need to be proportionate to the gravity of harm inflicted on Aboriginal heritage; additionally, we need to have penalties that, in the economic calculus of a developer or land user, do not represent a least-cost alternativein other words, destruction and invocation of a penalty is not a cheaper option than adapting land use and development around the continued maintenance of Aboriginal objects or places. The current maximum penalty under section 90 of $5,500 is outrageously inadequate.While the Greens would have supported the original maximum penalties in the consultation draft, the Government has taken account of opposition to such high penalties and introduced the concept of circumstances of aggravation, under which the original penalties of the consultation draft are maintained. The compromise, represented in subsection (3) of proposed section 86, creates some inconsistencies in the proposed section. The most obvious issue is that in proving circumstances of aggravation the prosecution will need to show that the offender destroyed an Aboriginal object for the purpose of financial gain. If an offender is destroying Aboriginal objects for financial gain it is logically consistent that there is an intention or knowledge behind the harm or damage. More precisely, can we have circumstances of aggravation for a strict liability offence whereby a form of intent is an element of aggravation? If a person destroys an Aboriginal object with the intent to financially gain then it logically follows that the offender knows they are destroying Aboriginal objects.I note that particular factual scenarios in the drafting of this provision have influenced the department. Situations whereby an offender has demonstrated a degree of wilful negligence or wanton disregard for whether they were destroying Aboriginal objects with the intention of financial benefit have to a degree driven the provision. The inconsistency is twofold. First, it confuses the essential nature of a strict liability offence and the reversal of evidentiary onuses with mixing in the idea of intent to financially gain. Secondly, it almost makes a subsection (2) strict liability offence in circumstances of aggravation identical to an offence under subsection (1). I note that after discussion the Minister has agreed to move an amendment that addresses this inconsistency.I turn to the defences contained in proposed section 87. It is necessary to understand the critical relevance of defences to destroying, harming or desecrating Aboriginal objects and places. Reflecting on the magnitude of such an offence, it is appropriate to acknowledge the spectrum of culpability that may be present in such circumstances. However, it is equally important to not set the standard of due diligence so low as to encourage land users to avoid the permit application process, commit an offence, and then seek to raise a due diligence defence. A due diligence defence is a necessary component of strict liability offences, and we should strive to set a regulatory standard that requires the utmost good faith and care in considering Aboriginal heritage objects and places. Anything less should be rejected and disallowed by this House. The Greens will most certainly ask the House to disallow regulations adopting codes of practice for due diligence standards that do not meet this basic standard.Subsection (1) of proposed section 87 provides a defence to prosecution where a defendant demonstrates that the harm or desecration was authorised by an Aboriginal heritage impact statement. Naturally flowing from this is the requirement that conditions of the permit are not contravened. In the 2005 New South Wales Court of Appeal case of Williams v The Director-General National Parks and Wildlife the court had to consider whether a permit under section 90 was valid in relation to a proposal by Country Energy to construct an electricity transmission line to facilitate the supply of electricity to the Lake Cowal goldmine and processing plant. Although not of direct consequence in the outcome of the case and strictly obiter, Justice Basten did make comments on the concept of authorising desecration. At paragraph 37 Justice Basten states in relation to a permit issued by Director General Lisa Corbyn authorising desecration of an Aboriginal object: This is slightly curious because the application for the permit did not seek permission to "deface" (although that term is used in s 90(1)), nor did it seek permission to "desecrate", a term not to be found in s 90. The term "desecrate" is defined by the Concise Australian Oxford Dictionary to mean "violate (a sacred place or thing) with violence, profanity etc". Alternatively, it is defined to mean "deprive (a church, a sacred object, etc) of sanctity; deconsecrate". That the officer given statutory authority for the protection of Aboriginal objects and places in New South Wales should, uninvited and apparently without power, design a "special and specific condition" to such effect is troubling. The last sentence of that quote is what I want us to consider. Is it possible for this Parliament to give a statutory officer of the department the power to authorise an individual to damage, harm or destroy an Aboriginal object or place with malicious intent to degrade something of spiritual or sacred significance? If we agree on the meaning of "desecration" how can we give the director general a power to authorise desecration? Would not the issuance of power to authorise intentional violence towards Aboriginal objects and places be contrary to the Racial Discrimination Act 1975 and Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples? One response would be that establishing a statutory power to authorise desecration and establishing such authorisation as a valid statutory defence is inconsistent with the objects of the National Parks and Wildlife Act in a most obvious way, and would most likely be read down. The Greens would have preferred that this word "desecration" was omitted from legislation, but we are confident that international conventions and covenants, our Constitution and existing Federal and State laws would render this particular provision as inoperable.In addition to the defence of having a valid permit that authorises an act of harm or destruction, defendants can also demonstrate to the court that they exercised due diligence in determining whether they would harm or destroy Aboriginal objects or places and that they reasonably determined no Aboriginal object would be harmed. Subsection (3) provides that compliance with requirements issued in the form of codes of practice by the Minister can be used to demonstrate due diligence for the purpose of a defence to an offence under section 86 (2). Subsection (4) also gives the Minister regulation-making power to create additional defences.The Greens are concerned that the provisions for expanding defences to destruction of Aboriginal heritage and the creation of codes of practice may be used to significantly undermine the protections afforded in this bill. Without speaking for the peak groups, I am aware that the New South Wales Aboriginal Land Council and the Native Title Services Corporation share these concerns, especially in relation to the determination of due diligence standards via codes of practice. This is the key element that greatly compromises the effectiveness of the bill to protect Aboriginal heritage. What needs to be remembered is that giving the executive rather than the judiciary the power to define due diligence at an industry level rather than on a case-by-case basis is a significant shift.There are certainly benefits in terms of certainty and development of best practice by allowing the executive to define what constitutes due diligence rather than the courts defining it through precedent on a case-by-case basis. With this transferral of responsibility to the executive comes an obligation to ensure that codes of practice strictly adhere to the objects of the Act and to the expectations of Aboriginal people in New South Wales. Already we have two industry codes of practice for plantation and reforestation developments and private native forestry operating in New South Wales, and these codes simply do not represent best practice due diligence.<35>They are far below the standard set by judicial precedent on due diligence. They should be reviewed immediately. More broadly, the exercise of ministerial power under these provisions will make or break protection of Aboriginal heritage in New South Wales.The draft regulation gives some insight into why there is such concern about this provision. Proposed clause 80B in the draft regulation shows what the Government has in mind for additional defences. The additional defences outlined in proposed clause 80B (1) would literally provide a wholesale defence to any destruction of Aboriginal objects or places in New South Wales. This is no exaggeration. If this regulation were to be enacted we would be taking a massive step backwards in the protection of Aboriginal heritage protection. The regulation proposes a defence for an activity that comprises exempt or complying development whereby the land has already been disturbed by a previous activity. In other words, if the land is already impacted or disturbed in some way by urban development or soil ploughing, for example, then any action on such land consistent with a complying development certificate or exempt development would be a defence to destroying or harming Aboriginal objects. This is simply not consistent with the objects of the Act and represents a political fantasy of the Urban Taskforce and the NSW Minerals Council. The proposed regulations are an embarrassment to this State. New South Wales could not stand up in national and international forums and defend such a position: it is heretical to both national and international laws protecting Aboriginal heritage. As much as we all want to focus on penalties for offences and the prosecutorial power of the Department of Environment, Climate Change and Water [DECCW], the reality is that the Aboriginal heritage impact permit process is the principal mechanism for protecting and maintaining or damaging and destroying Aboriginal heritage, depending on what paradigm you subscribe to. Certainly the evidence suggests that the permit system has become increasing geared to facilitating destruction rather than preservation. In response to a question on notice I placed on the record in October 2008, the then Minister indicated that the Department of Environment and Climate Change [DECC] approved 92 per cent of all permit applications in 2007 and 100 per cent of applications in 2008. While we would need to see the conditions of consent to take a more informed position, the percentage of approvals and the anecdotal advice from both local and peak Aboriginal groups indicate that the permit system is more calibrated and sensitive to land user concerns and demands. The Government's amendment to proposed section 90K, which is reflected in paragraph (g), ensures that an applicant or proponent materially complies with community consultation guidelines. This amendment is a vast improvement to ensure communities have a degree of protection from proponent-managed consultations. Poor consultation and non-compliance with community consultation guidelines are most certainly considerations a director general should be taking account of. Where an applicant has materially failed in implementing consultation standards the director general should refuse the application. The Opposition in the other place appeared to suggest that the list of factors contained in proposed section 90K were too extensive and complicated. When we consider such cases as Anderson v Director-General of the Department of Environmental and Climate Change at first instance and on appeal, Country Energy v Williams and Roy Kennedy v Director-General of the Department of Environment and Conservation, which have tested the considerations of the director general in determining issuance or rejection of permits, it is clear that outlining the decision-making process in legislation will enhance decision-making consistency and accountability. The amendment to proposed section 90K by the Government in the Legislative Assembly inserted paragraph (g) requiring the director general to consider compliance of the applicant with consultation guidelines before issuing a permit. This amendment is particularly important because in so many cases proponent-led consultations result in corners being cut, people being ignored and objections being silenced. Proponent-led consultation has its inherent pitfalls with many companies unable to separate their interest in developing or using land at the lowest cost from their obligation to provide a forum for consultation. Many Australian companies do not abide by the Akw:Kon Voluntary Guidelines for the Conduct of Cultural, Environmental, and Social Impact Assessment as part of their corporate social responsibility program. Companies see the process as red tape to development. This is a sad indictment of the corporate psyche. The other important aspect of the bill relates to the changes to joint management of national parks under part 4A of the Act. National parks or nature reserves can be jointly managed by listing a particular area on schedule 14 and a lease back agreement signed between the Aboriginal owners and the New South Wales Government. Items [17] to [29] of schedule 1 make changes to governance and management changes to joint management parks. These changes include statutory indemnity for board of management members acting in good faith, new powers of delegation for board of management members, increased reporting requirements in the form of annual budgets and increased flexibility to allow a single plan of management to extend to more than one part 4A park. The insertion of part 15 provides additional guidance to the courts in relation to sentencing for offences under the National Park and Wildlife Act. These provisions in a general sense attempt to harmonise the prosecutorial power the department has under the Protection of the Environment Operations Act with the National Parks and Wildlife Act. This certainly is a positive step forward and should ensure stronger protection for our national parks. Powers to make orders for restoration and obtain cost recovery will place the Department of Environment, Climate Change and Water in a strong prosecutorial position to pursue those who damage or destroy Aboriginal places and objects, and national park flora and fauna. Orders contained in proposed sections 204 and 205 should provide a major disincentive for people to destroy Aboriginal heritage and national park flora and fauna. In concluding my contribution I acknowledge the hard work and commitment of both the NSW Aboriginal Land Council and Native Title Services Corporation in trying to improve this bill. They have articulated their concerns and knowledge about protecting Aboriginal heritage in New South Wales with a high degree of clarity and critical reflection. I acknowledge the Minister for Climate Change and the Environment, the Hon. Frank Sartor, who has made an honest attempt to improve this bill. While the bill could be improved further, he listened to those with concerns and responded with alternatives that go some way to allay the fears that this bill may do more harm than good. I thank also the Minister's office and the department for their time in discussing the bill with my office. I urge the Government and the Opposition to commit to giving Aboriginal people in New South Wales the right to control their heritage, their history and their culture. We need to establish an Aboriginal Heritage Commission, as recommended 30 years ago, as a matter of urgency. Reverend the Hon. FRED NILE [9.37 p.m.]: The Christian Democratic Party is pleased to support the National Parks and Wildlife Amendment Bill 2010. This is an important but long-overdue bill because the provisions being updated were last considered 30 years ago. It has taken a long time for both sides of politics to focus attention on the whole issue of Aboriginal cultural heritage. These amendments will bring up to date the reform and modernisation of Aboriginal cultural heritage regulation in New South Wales. I am pleased the Government is doing that. I note that the Opposition stated as an election commitment that it will introduce stand-alone legislation in New South Wales to protect Aboriginal cultural heritage. I note also that the Government supports that proposal and within a two-year period will develop a working party comprising representatives from government and community groups. Perhaps that is a bit slow off the mark and could be moved a bit faster than that time frame.I do not know whether members heard the news only yesterday and today of discoveries of Aboriginal cave art in Arnhem land near Kakadu park. This particular cave art depicts birds and animals that no longer exist. People know about them from fossils but they are extinct. The art portrayal of these birds and animals on television was quite distinguishable; they were not just smears but perhaps were done by an Aboriginal craftsman.<36>The big question is how old they are. Carbon dating will be performed on these Aboriginal paintings. It is believed they are in excess of 10,000 years but they could be older. If that is the case it will be the oldest cave art ever found in Australia and perhaps is even getting close to the oldest cave art ever found in the worldnamely, in the Alps near Spain.Reverend the Hon. Dr Gordon Moyes: Glasgow.Reverend the Hon. FRED NILE: Reverend the Hon. Dr Gordon Moyes says it is Glasgow. I remember that from my time at university. That cave art makes this bill even more important than some members might have realised. Aboriginals are the original custodians of Australia and it is important that their heritagewhich is our heritageis treated with respect and is protected. It is difficult for non-Aboriginals not to appear patronising, but we must not be patronising. We should respect Aboriginal peoplesomething I have endeavoured to do all my lifeand their ability to make their own decisions. I am pleased with the number of parks that are now being administered in cooperation with Aboriginal people. In New South Wales around one-third of the parks estate is subject to formal joint management arrangements with Aboriginal people. One of those joint managements involves the nine parks that have been handed back to their Aboriginal owners and leased to the Government for management as a reserve under part 4A of the National Parks and Wildlife Act 1974. But even there we are keeping the white man's hand on the lever. I would like to see greater independence for the Aboriginal owners in administering those nine parks, and other parks in due course. That is important because sometimes we say we will do something on the one hand but then we do the opposite. The proclamation by the Queensland Government of the Wild Rivers area of that State has caused anger among Aboriginal people. The Bligh Government could have said, "We want to protect the environment" but instead it denied Aboriginal people access. Access to that area could have enabled Aboriginal people to be involved in pursuits to help their economic situation. Mr Pearson has been very critical of Labor governments that say one thing but do the oppositethat could apply equally to a Coalition government. It is important to have consistency in the way Aboriginal issues are dealt with. As I have said, I have endeavoured to do that all my life.The bill dramatically increases the penalties for people who harm or desecrate an Aboriginal object or harm or desecrate an Aboriginal place. This arose from a case in which some cynical individuals, who I assume were undertaking development on a site, found an Aboriginal midden. They rang the local National Parks office to find out the maximum fine for knowingly damaging Aboriginal objects. When they found out how low the fine was they decided to blatantly break the law by relocating the midden and commencing development work at the site. That attitude highlights the need to make these penalties more consistent with penalties in other areas. In that case each defendant was fined only $400. In sentencing, the Land and Environment Court noted that the maximum fine should have been higher for individuals who were callous in their attitude to that Aboriginal heritage material. The bill also deals with some minor amendments, which are non-controversial so far as I am aware. The Government has supplied a large number of amendments in an endeavour to clarify some aspects of the legislation. For example, the meaning of the definition of "harm" is clarified. It does not appear that those amendments, some of which are very important, are to be opposed. I am pleased to support the bill. The Hon. CHRISTINE ROBERTSON [9.45 p.m.]: I am really pleased to support the National Parks and Wildlife Amendment Bill 2010. This legislation marks the first step in the very important review of how Aboriginal cultural heritage is regulated in New South Wales. The Government has announced a broad reform process, which will take place over two years and will develop options for new stand-alone legislation for the protection of Aboriginal cultural heritage. In the meantime, these amendments are a necessary first step to update the legislation, which has remained largely unchanged since its enactment in the 1970s. The development of this bill has been a long and involved process and one of extensive consultation, which we have heard a lot about tonight.Drafting of the bill commenced in November 2006 and it took some time to work the detail of the proposal through government agency processes. Public consultation on the draft bill occurred between August and December 2009. The draft bill, a summary of the proposed amendments and the related draft Aboriginal Cultural Heritage Due Diligence Code of Practice to be adopted by the regulations were placed on the website of the Department of Environment, Climate Change and Water. General public comments on those aspects were invited via the key stakeholders or via email. Departmental representatives also met with a number of key stakeholders, including Aboriginal organisations, industry representative bodies and environmental organisations. Twenty-eight written submissions were received from key stakeholders and other interested parties. The department is now also consulting with these parties on the development of the regulation and associated codes of practice. Consultation with other government agencies on stakeholder issues, and the details of the bill and regulations has been conducted through an interagency committee that comprises representatives from relevant government agencies. Stakeholder support for the bill and the Due Diligence Code of Practice has been varied. However, most submissions received were comprehensive and well considered, and raised many useful operational and policy issues. Most submissions focussed understandably on the proposed Aboriginal cultural heritage amendments. Aboriginal and environmental organisations generally supported the proposed stronger Aboriginal cultural heritage offences and penalties, while at the same time they thought that some defences or exemptions might undermine the stronger Aboriginal cultural heritage protections. Property, mining and farming industries were concerned at the possible restrictions that stronger Aboriginal heritage regulation might pose for their respective sectors, and sought more clarity on aspects of due diligence and low-impact defences for the strict liability offence. As a result of the consultation process quite a number of changes were made to the bill prior to its being tabled in Parliament in February 2010. These included transferring provision for certain Aboriginal Heritage Impact Permits to new landowners without amendment; removing the gaol penalty for the strict liability Aboriginal object offence; removing desecration from the strict liability Aboriginal object offence; allowing for merit appeals against Aboriginal Heritage Impact Permit decisions to be made to the Land and Environment Court; allowing for merit appeals to the Land and Environment Court against remediation directions issued by the Director General; enabling NTSCORP to have a position on the Aboriginal Cultural Heritage Advisory Committee; establishing a public register for details relating to matters such as Aboriginal Heritage Impact Permits, remediation directions and Aboriginal places; and giving the Aboriginal Heritage Information Management System statutory recognition. Due diligence is a critical component of the new strict liability Aboriginal cultural heritage offence. A simpler and clearer draft Due Diligence Code of Practice has been developed responding to many of the issues raised by stakeholders and agencies, and work will continue on this prior to the introduction of the regulations. <37>Some issues raised in the stakeholders' submissions on the bill are matters best addressed in a broader reform process and are not included in the current bill or regulations. These issues include the scope and content of Aboriginal cultural heritage, who determines cultural significance, the statutory roles of Aboriginal people, alternative approaches to regulation, and new conservation approaches and mechanisms. As I stated in my opening comments, the Government has announced its commitment to broader reform. The Minister for Climate Change and the Environment and the Minister for Aboriginal Affairs are establishing a working party to conduct a review of the existing legislation and to recommend options for new stand-alone legislation. It is likely that this review will take up to two yearsand I agree that it should, just to make sure that plenty of time is available for people to mull over the issues. The review will formally commence following the passing of this bill by Parliament.The provisions in this bill will require everyone in New South Wales to take better care of our Aboriginal heritage. I emphasise the term "require", which does not mean just being nice about it. That is an important first step in improving the protection of our irreplaceable heritage. The broader review, which will commence when the bill is passed, will seek community input on how to further improve this protection. I recognise that I am an irritant because people want to adjourn, but I will continue to speak because I really want to.My long-term friend, Jan Wilson, is an archaeologist of very good repute in New South Wales. She carries responsibilities of identification of Aboriginal sites and artefacts. Over many years she has been responsible for the heritage classification and protection of many important Aboriginal heritage sites and artefacts. The Aboriginal people for whom she works have long deserved this important bill, and the two years of consultation that will produce the further extension of this work. I congratulate Minister Sartor on this important work. I am pleased to support the bill.The Hon. MICHAEL VEITCH (Parliamentary Secretary) [9.51 p.m.], in reply: I thank all members who contributed to debate on the National Parks and Wildlife Amendment Bill 2010. During development of the bill, it became known as the omnibus bill because it is an amalgam of a range of minor through to major amendments, all of which are necessary for the more effective regulation of our national parks, threatened species and Aboriginal cultural heritage. The total package of amendments now contained in this bill is the first step in a much-needed broader reform of Aboriginal cultural heritage regulation in New South Wales.During consultation on this bill, many stakeholders raised some very important matters that will be best addressed as part of a broader reform process. They include the scope and content of Aboriginal cultural heritage, who determines cultural significance, statutory roles for Aboriginal people, alternatives to regulation, and new conservation approaches and mechanisms. The Government agrees that these matters are very significant and that they require detailed consideration as well as consultation with Aboriginal people and other interested parties.The 2008 review of the New South Wales Heritage Act 1977 by an independent panel also recognised the need to examine the management of Aboriginal heritage by a separate process. Consequently, it is timely that New South Wales undertake its own review of Aboriginal heritage legislation and carry out consultation with the community with the intention of introducing separate legislation to recognise and manage this issue. New approaches to Aboriginal cultural heritage can advocate a broader landscape of focus and recognise the existence of intangible heritage.There is also recognition that Aboriginal people must be the primary determiners of the significance of their heritage and be actively involved in its conservation and management. While these changes are evident in academic literature, new policy frameworks and guidelines, they are not yet reflected in legislation in New South Wales. This is a significant barrier to their effective expression in practice. The New South Wales Government has announced a broad reform process and consideration of new stand-alone legislation in New South Wales to protect Aboriginal cultural heritage.In the near future the Minister for Aboriginal Affairs and the Minister for Climate Change and the Environment will release the terms of reference for a wide-ranging review. In the meantime the provisions of this bill are required now to streamline the protection of Aboriginal cultural heritage in New South Wales, to introduce tougher penalties for those who flout the law, and to make sure that everyone in New South Wales takes Aboriginal cultural heritage into account when owning, managing or using land. The bill also makes various minor improvements to the administration of national parks and wildlife management in New South Wales.During the debate, the Hon. Catherine Cusack drew attention to the municipal fees in the Kosciuszko National Park and whether they would be used to pay fines. I am advised that in many national parks the Department of Environment, Climate Change and Water plays a role that is comparable to that of local government and is entitled to recover the costs of certain services that it provides to commercial operators. The charges relate to municipal health and building services. These will be imposed on commercial operators inside a national park, not on gate entries. Therefore, there will be no increase in park entry fees. The fees charged are in line with Victorian ski entrance to a single resort area, but the entry fee to Kosciuszko National Park gives access to all New South Wales ski resorts. The park entry fee typically represents less than 1 per cent of the total cost of a ski holiday. With regard to whether the fees will be used to pay fines, I will take that on notice and provide a response to the member. I commend the bill to the House.QuestionThat this bill be now read a second timeput and resolved in the affirmative.Motion agreed to.Bill read a second time. In Committee Clauses 1 to 3 agreed to.The Hon. PENNY SHARPE (Parliamentary Secretary) [9.56 p.m.], by leave: I move Government amendments Nos 1 to 6 on sheet C2010-214F in globo: No. 1 Page 4, Schedule 1. Insert after line 30: [9] Section 5 (7) Insert after section 5 (6): (7) Before a regulation is made under paragraph (c) or (g) of the definition of harm in subsection (I), the Minister is required to ensure, as far as is reasonably practicable, that: (a) a notice is to be published in a daily newspaper circulating throughout New South Wales: (i) stating the objects of the proposed regulation, and(ii) advising where a copy of the regulation may be obtained or inspected, and(iii) inviting comments and submissions within a specified time, but not less than 28 days from publication of the notice, and(b) consultation is to take place with the Aboriginal Cultural Heritage Advisory Committee, and(c) all the comments and submissions received are to be appropriately considered. No. 2 Page 9, Schedule 1 [32], proposed section 86 (3) (a), lines 28 and 29. Omit all words on those lines. Insert instead: (a) that the offence was committed in the course of carrying out a commercial activity, or No. 3 Page 10, Schedule 1 [32], proposed section 87 (4), lines 37 and 38. Omit all words on those lines. Insert instead: (4) It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the act or omission constituting the alleged offence is prescribed by the regulations as a low impact act or omission. No. 4 Page 11, Schedule 1 [32], proposed section 87 (5) and (6), lines 1-10. Omit all words on those lines. Insert instead: (5) The Minister is not to recommend the making of a regulation under subsection (3), unless: (a) the Director-General has, under subsection (6), set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, and(b) the Minister: (i) is satisfied that the requirements specified in the recommended regulation, or in the code of practice adopted or prescribed by the recommended regulation, meet those minimum standards, and(ii) has consulted with the Aboriginal Cultural Heritage Advisory Committee. (6) The Director-General may, for the purposes of subsection (5) set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, under subsection (3). The Director-General is to publish any such minimum standards in the Gazette. No. 5 Page 56, Schedule 1 [120]. Insert after line 12: Existing codes of practice may be adopted for purposes of due diligence defence Section 87 (5) does not apply to the making of a regulation that adopts or prescribes, for the purposes of section 87 (3), the following codes of practice: (a) the PNF code of practice within the meaning of Part 5A of the Native Vegetation Regulation 2005 (as in force at the date of assent to the amending Act),(b) the Plantations and Reafforestation Code set out in the Appendix to the Plantations and Reafforestation (Code) Regulation 2001 (as in force at the date of assent to the amending Act). No. 6 Page 78, Schedule 3.7, lines 3 and 4. Omit all words on those lines. Insert instead "Omit section 38 (2.4) (i) and (j)." The current provisions of this part of the bill allow regulations to be made that can exclude or include further acts or omissions from the definition of "harm" as required. Some external stakeholders have requested that any regulations made under this power will be subject to public scrutiny. The Government has agreed that, prior to making any such regulations, they will be subject to consultation with the Aboriginal Cultural Heritage Advisory Committee. The objects of the proposed regulations are also to be notified in a statewide newspaper. The draft regulations must be placed on public exhibition for at least 28 days. Any public submissions received are to be considered prior to the regulations being made.Government amendment No. 2 relates to the inclusion of commercial activities in circumstances of aggravation. The Aboriginal heritage offences in item [32] new sections 86 (1) and 86 (2) of the bill currently provide maximum penalties for offences by individuals when the offence is committed in "circumstances of aggravation". The circumstances are defined as a second or subsequent offence, or when a person has acted for financial gain. The Government notes concerns since raised about this provision that the reference to "financial gain" in the current definition of "circumstances of aggravation" is too narrow, and that there may be difficulties in proving that a person has benefited financially. The provision has been revised to now specify that the circumstances of aggravation apply when the activity is a commercial activity.Government amendment No. 3 relates to limiting power to make new defences to low impact acts or omissions by regulation. The current provision in the bill in item [32] new section 87 (4) provides for the regulations to contain additional defences to those provided in new sections 87 (1) to (3). Some external stakeholders are concerned that this regulation-making power is too broad. This further Government amendment to the bill proposes to limit additional defences to low impact acts or omissions only. The amendment will also retain the requirement for consultation with the Aboriginal Cultural Heritage Advisory Committee on any proposed regulations.The low impact acts or omissions listed in the regulations need to provide a balanced and workable defence for things that are considered to have a lower likelihood of harming Aboriginal objects. The list will be finalised to allow many low impact routine farming and land management activities to proceed without the need for specific due diligence checks. However, should a person become aware of Aboriginal objects that may be harmed while undertaking a low impact activity, this defence does not authorise them to harm those objects. If the activity continues and harm is caused, then it would constitute a "knowing" offence, and the proposed defence would not apply. The details of the current low impact activities list, which is in the draft regulation, will be further discussed with peak Aboriginal stakeholder groups and other interested parties prior to the regulation being made.<38>Government amendment No. 4 relates to the minimum standard for codes of practice and Government amendment No. 5 deals with the existing forestry codes of practice that may be adopted for the purpose of due diligence. It was the Government's intention that the general due diligence code prepared by the Department of Environment, Climate Change and Water would be the minimum standard. In response to stakeholder concerns, the Government now proposes two further amendments to the bill to make it clear that this is the case. These two proposed amendments will require that minimum standards are in place before codes of practice can be adopted by the regulations, with the exception of existing statutory codes for forestry on private land and for the establishment of private plantations.The Government is already committed to a separate process for the further upgrading of these existing statutory codes and guidelines. This will occur when they are due for their respective statutory reviews. These two existing statutory native forest and plantation codes already contain a range of precautions to check for the presence of Aboriginal objects prior to the conduct of forestry operations. These codes have taken considerable time to negotiate with the forest industry sector and should be allowed to continue for the time being in their current form.Government amendment No. 6 relates to the Lord Howe Island regulations. In 1981 the Lord Howe Island Act was amended to include provisions about a Lord Howe Island permanent park preserve, a quasi national park. Section 38 (2A) was inserted at this time to give the same regulation-making powers in relation to this park preserve as does section 154 (2) of the National Parks and Wildlife Act for national parks. It is proposed that the bill amends the Lord Howe Island Act to remove subsections (i) and (j) of section 38 (2A), as these regulation-making powers are unnecessary. The regulation-making powers in the National Parks and Wildlife Act can be used to make regulations about Aboriginal objects taken to Lord Howe Island in the future. European heritage on the island is regulated by the Heritage Act. I commend the amendments to the Committee.Mr IAN COHEN [10.01 p.m.]: The Greens do not oppose Government amendment No. 1. The amendment aims to place procedural restrictions on the enactment of regulations that alter the concept of harm in relation to Aboriginal objects and places. The Minister will be required to undertake community consultation on any regulation that changes the definition of "harm", to consult with the Aboriginal Cultural Heritage Advisory Committee and to consider all comments and submissions. This is an improvement on the unfettered executive power that is currently contained in the definitions. The original Greens amendment totally removed the power to enact regulations that excluded certain acts or omissions from the definition of "harm". This would have been the Greens preferred option. There are multiple regulation-making powers in this bill that if used with a cavalier attitude to protecting Aboriginal heritage will greatly impede the maintenance of Aboriginal heritage.In addition to this provision, the Minister also can make regulations to create additional defences and adopt codes of practice. This gives the Minister more than necessary executive powers to define the level of protection afforded to Aboriginal objects. In some ways, I wish we could stop mincing words and affirm the commitment of this Chamber to stopping the destruction and defacement of Aboriginal cultural heritage. I hope these additional procedural mechanisms for consultation lead to the Minister thinking twice before attempting to undermine the protection of Aboriginal heritage.Government amendment No. 2 is a result of the Government responding to our concerns that the current circumstances of aggravation are inconsistent with the principle of strict liability. The circumstances of aggravation are based upon section 21A (2) (o) of the Crimes (Sentencing Procedure) Act 1999. In relation to an offence committed for financial gain, discretion can be applied to hand down a penalty in the maximum penalty range. This is applied to a range of offences, including drug trafficking and breaches of the Protection of the Environment Operations Act and the Environmental Planning and Assessment Act. In many cases the nexus between an offence and an intention to financially gain from an offence is obvious. However, even in cases of drug trafficking a question may arise as to whether the offence was for financial gain if the offender argues that the proceeds of drug trafficking were simply to support his own drug habit, as occurred in the 2009 New South Wales Court of Appeal case of Cicciarello v R.The current drafting of proposed section 86 (3) (a) requires that the offender is engaged in the destruction of an Aboriginal object with the intention of financial gain. This creates two problems. First, which the Minister has identified, that it focused on the actual harm or destruction of the Aboriginal object when in the context of a strict liability offence we are more concerned with destruction in the course of a particular activity on land. Second, the requirement of intention in the form of seeking financial gain from destruction is inconsistent with the principles of strict liability. In addition, in the context of the destruction of Aboriginal objects, the link between an offence and financial gain might not be as obvious as it is in other offences. The words "personal benefit" simply ensure that no difficulties arise in prosecuting offenders where there is an obvious or general intent to benefit from the destruction of Aboriginal objects and that demonstrating such intent or outcome is not restricted to the potentially narrow concept of financial gain.The Government amendment simply makes it clear that if an Aboriginal object is destroyed in the course of carrying out a commercial activity, without or beyond the conditions of a permit, then a circumstance of aggravation is established. Commercial operationsthat is, any activity that is undertaken for financial benefitshould be subject to a strong requirement for care and diligence and any person that does not comply with due diligence standards or permits in a commercial context should be subject to a higher level of penalties. The Greens support this amendment.Government amendment No. 3 goes some way to ensuring that this bill does not open the floodgates for the destruction of Aboriginal heritage. At present proposed section 87 (4) allows for an unconstrained creation of new defences to the destruction of Aboriginal objects under proposed section 86 (2). This is a farcical situation that can only lead to increased destruction of Aboriginal heritage. The amendment restricts the ability of the Minister to create additional defences for the offence in proposed section 86 (2). It restricts the Minister to prescribing acts or omissions that can be termed as a "low impact act or omission". The Greens version of this amendment, in a roundabout fashion, tried to define "low impact" as activities that were unlikely to result in harm to an Aboriginal object. It is a shame that the Government could not support our amendment because the creation of poorly conceived offences to the strict liability offence poses a real threat to this reform.In terms of diluting protection for Aboriginal heritage through regulation, this Government amendment hopefully will prevent some of the worst excesses, but not all. The remainder will be left to this House to disallow. The draft regulation is appalling and has the fingerprints of certain Cabinet members who are concerned about unrealistic, hypothetical situations, such as their next-door neighbour getting hit with a $100,000 fine for tripping over their dog and smashing shell middens as they hit the ground. I also am sure the incessant squawking of the Urban Task Force to make housing development cheaper is playing a role in the push for this concept of low impact. The Greens do not oppose this amendment, as it improves the current bill. However, we are disappointed that we have this concept of low impact.In relation to Government amendments Nos 4 and 5, as noted during the second reading stage, the bill creates a range of defences to the strict liability of events in proposed section 86 (2). The bill does so by a considerable referral of power to the Minister to make regulations that adopt codes of practice, with which compliance will satisfy the regulatory standard of due diligence. Government amendment No. 4 is based on a version of a Greens amendment that attempted to place controls on the adoption of codes of practice that will establish due diligence standards.Government amendment No. 4 alters proposed section 87 (5) by requiring the director general to set minimum standard requirements for codes of practice. These requirements should reflect judicial interpretations of due diligence in order to ensure that the objectives of the Act are achieved. The function of the minimum standard requirements is to ensure that the codes reflect this standard of due diligence. It is important that the director general maintains control and consistency in codes of practice and that the Aboriginal Cultural Heritage Advisory Committee has the same ability to comment on regulations establishing codes of practice as it does in relation to regulations establishing general defences.It is necessary to note that Minister Ian Macdonald demands exemption from bringing the plantations and private native forestry codes of practice up to a basic level of due diligence. This is the reason why we need Government amendment No. 5. Even though the plantations Act is currently going through its statutory review, Minister Macdonald refuses to do his bit to protect Aboriginal heritage. This is a very sad element of the bill. Every deficient element of this bill can be traced back to concessions sought in Cabinet by Minister Macdonald. In order to ensure that codes of practice relating to mining, agriculture and urban development are benchmarked at an effective standard of due diligence, Government amendment No. 4 is absolutely critical. So much damage could be done by allowing new codes of practice to fall below basic judicially defined due diligence standard.<39>The Greens will actively seek the improvement of private native forestry and plantation codes when Minister Macdonald brings forward reforms on the Plantations and Reafforestation Act. We will commit to ensuring that these codes represent a serious interpretation of due diligence. The Greens do not oppose Government amendment No. 6.The Hon. CATHERINE CUSACK [10.09 p.m.]: The Coalition does not oppose these amendments. In relation to Government amendment No. 1, sadly it is necessary to spell out the requirement for and the form of consultation that should take place. Unfortunately, the sorry history of this bill has led to a loss of trust. That is why stakeholders found it necessary to negotiate with the Government on that amendment, and we support that. In relation to Government amendment No. 2, the Opposition supports a hierarchy of offences and the concept of aggravation. Linking aggravation to the way people carry out commercial activities, as the Government has done, is a logical way of defining "aggravation".In relation to Government amendment No. 3, we strongly support exempting low-impact activities or at least providing for low-impact activities to be a legitimate defence. I point out to the Greens that low-impact activities, I understand, are occurring on land that has already been disturbed. This relates to almost all farming practices. It is important that the Government has been able to give that assurance to the agricultural industry in this legislation, and it is strongly supported by the Coalition. From a heritage perspective, low-impact activities are taking place on land that has already been disturbed, so we consider the likelihood of disturbing Aboriginal heritage inadvertently to be extremely low, if at all.In relation to codes of practice, we understand the concern of the Aboriginal community that codes of practice not be used as a back-door way to lower the standards set out in the legislation. The way this is being achieved in the regulation is clumsy. It is strange that the director general will, in a sense, on the direction of the Minister, have certain powers that are not within the purview of the Minister. However, I understand the intention and why the regulation has been crafted in this way, and we will not oppose it. We do not want a Minister in another portfolio being able to dilute the standards in this legislation by crafting a code of practice that can then be used as a legal defence to overcome what was the Parliament's obvious intentions as set out in the legislation.I strongly support Government amendment No. 6, which relates to a matter raised by Mr Michael Richardson in another place. I thank the Minister, Frank Sartor, for taking on board the member's point about the strange references to Lord Howe Island in the legislation. That highlights the incredible diligence and detail of the member, and I thank Minister Sartor for making that change.QuestionThat Government amendments Nos 1 to 6 be agreed toput and resolved in the affirmative.Government amendments Nos 1 to 6 agreed to.Schedule 1 as amended agreed to.Schedule 2 agreed to.Schedule 3 as amended agreed to.Title agreed to.Bill reported from Committee with amendments. Adoption of Report Motion by the Hon. Penny Sharpe agreed to: That the report be adopted. Report adopted. Third Reading Motion by the Hon. Penny Sharpe agreed to: That this bill be now read a third time. 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