Protecting the past for the public good: archaeology and Australian heritage law

Abstract

Archaeological remains have long been recognised as fragile evidence of the past, which require protection. Legal protection for archaeological heritage has existed in Australia for more than thirty years but there has been little analysis of the aims and effectiveness of that legislation by the archaeological profession. Much Australian heritage legislation was developed in a period where the dominant paradigm in archaeological theory and practice held that archaeology was an objective science. Australian legislative frameworks continue to strongly reflect this scientific paradigm and contemporary archaeological heritage management practice is in turn driven by these legislative requirements. This thesis examines whether archaeological heritage legislation is fulfilling its original intent. Analysis of legislative development in this thesis reveals that legislators viewed archaeological heritage as having a wide societal value, not solely or principally for the archaeological community. Archaeological heritage protection is considered within the broader philosophy of environmental conservation. As an environmental issue, it is suggested that a ‘public good’ conservation paradigm is closer to the original intent of archaeological heritage legislation, rather than the “scientific” paradigm which underlies much Australian legislation. Through investigation of the developmental history of Australian heritage legislation it is possible to observe how current practice has diverged from the original intent of the legislation, with New South Wales and Victoria serving as case studies. Further analysis is undertaken of the limited number of Australian court cases which have involved substantial archaeological issues to determine the court’s attitude to archaeological heritage protection. Situating archaeological heritage protective legislation within the field of environmental law allows the examination of alternate modes of protecting archaeological heritage and creates opportunities for ‘public good’ conservation outcomes. This shift of focus to ‘public good’ conservation as an alternative to narrowly-conceived scientific outcomes better aligns with current public policy directions including the sustainability principles, as they have developed in Australia, as well as indigenous rights of self-determination. The thesis suggests areas for legal reforms which direct future archaeological heritage management practice to consider the ‘public good’ values for archaeological heritage protection.

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