Aboriginal Heritage (Miscellaneous) Amendment Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (11:36): I move:

That the time allotted for all stages of the bill be 60 minutes.

The house divided on the motion:

Ayes 23

Noes 11

Majority 12

AYES

NOES

PAIRS

Motion thus carried.

The Hon. S.E. CLOSE: I move:

That this bill be now read a second time.

The bill I seek to introduce today is the Evidence (Aboriginal Traditional Laws and Customs) Amendment Bill 2023. In 1986, the Australian Law Reform Commission released Report 31, the Recognition of Aboriginal Customary Laws, which made recommendations about recognition of Aboriginal customary laws about a wide range of issues, including marriage, property, criminal law and traditional hunting, fishing and gathering rights.

The report also considered the ways the laws of evidence and procedure adversely affected the proof of Aboriginal customary law.

The SPEAKER: Point of order, member for Heysen.

Mr TEAGUE: There is a point of order. I suppose it is relevance. This appears to be the wrong bill.

The SPEAKER: Yes, I think that is being sorted now. Thank you for your help.

The Hon. S.E. CLOSE: I apologise to the chamber for inadvertently reading the beginning of the wrong second reading speech.

I rise to introduce the Aboriginal Heritage (Miscellaneous) Amendment Bill 2023. The bill implements the Malinauskas Labor government's election commitment to increase penalties for Aboriginal Heritage Act 1988 offences, including by introducing powers for the courts to make remedial compensation and profit forfeiture orders against offenders who have breached the act's offences of damaging Aboriginal heritage.

SA Labor's heritage election policy committed to legislate increased protection of Aboriginal heritage. Specifically, SA Labor promised to increase financial penalties for serious breaches of Aboriginal heritage laws so that penalties for destroying the past are not seen just as the cost of doing business.

Since that policy was announced, the Supreme Court judgement in Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia (2022) SASC 91, a judicial review of an authorisation granted under the Aboriginal Heritage Act, was delivered on 25 August 2022. That decision created uncertainty for government and other land use proponents that hold or seek to hold an authorisation under the act to damage, disturb or interfere with Aboriginal heritage to enable development projects.

In early 2023, the government consulted publicly on draft legislation to increase penalties in the act in line with the election commitment, as well as to address the uncertainties arising from the first instance, the Kelaray decision, by enshrining in the act clear requirements for reporting discoveries of Aboriginal heritage. Mining exploration company, Kelaray Pty Ltd, appealed the Supreme Court decision to invalidate an authorisation held by the company under section 23 of the Aboriginal Heritage Act.

On 11 May 2023, the Supreme Court of South Australia Court of Appeal allowed the appeal that held Kelaray's authorisation was valid. Importantly, the Court of Appeal confirmed that the requirement in section 20 of the act should report discoveries of Aboriginal heritage immediately to the Minister for Aboriginal Affairs and the ability for the minister to make an urgent direction under section 24 of the act to protect the discovered heritage still applied to the holder of an authorisation to affect heritage within an authorisation area.

The government's proposed reforms arising from the Kelaray case are needed to enshrine certainty into the act around the requirements for reporting discoveries of Aboriginal heritage whether within an area where impacts to Aboriginal heritage have been authorised or otherwise.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

As mentioned, discoveries of Aboriginal heritage will now also include discoveries of significant new information about known heritage.

This will help South Australia to avoid tragedies such as that which occurred in Juukan Gorge in Western Australia in 2020. There, the discovery of significant new information about an outstanding and irreplaceable Aboriginal site could not be used by the Minister to save it because the information was discovered after an authorisation to destroy it was granted.

The Bill amendments propose mandated timelines for Ministerial notification and response in relation to heritage discoveries. This is to address any potential concerns about open ended work stoppages and create greater certainty for proponents for project timelines.

The Bill will also amend the Act to make explicit the accepted principle, confirmed again by the Court of Appeal in the Kelaray appeal, that section 21 and 23 authorisations may be granted to classes of persons and cover all heritage in the area, known or unknown.

The Bill amendments provide for a mandated notification process for Aboriginal heritage discovered within an existing authorisation area (including the submitting of details, or methodologies, on how it is proposed to manage the discovered heritage). This process will allow the Minister an opportunity to consider protecting the discovery where a proposed methodology for managing the discovery is assessed as insufficient—for example, for discoveries of extraordinary importance that cannot be relocated or avoided—without the lengthy consultation or notification requirements currently in sections 13 and 24(4) of the Act.

The notification process will require the developer or other proponent to pause works near the discovery for up to 5 business days for Aboriginal sites or objects or up to 10 business days for Aboriginal remains – to allow the Minister to respond to the notification.

During this time, the Minister will assess the importance of the discovery and the proponent's proposed methodology for dealing with it, and whether any urgent action needs to be taken by the Minister to protect the discovery – as opposed to the current situation where the proponents generally decide what to do with a discovery before reporting to the Minister.

In practice, any works pauses upon heritage discoveries are likely to be for lesser times than these statutory maximums.

In concert with the State Aboriginal Heritage Committee, the Government will develop detailed guidelines for promulgation under the Act addressing what is required for a heritage management 'methodology' to be approvable. These guidelines will be made public and provided to proponents whenever seeking an authorisation. Given the discovery management methodology will apply within the context of an authorisation to impact Aboriginal heritage, in most cases, unless there is an extraordinary discovery like Juukan Gorge, proponents will be able to continue work without having to observe the full legislated pause work period. In this way, the newly legislated process will largely formalise and continue current practices under heritage discovery protocols, which are imposed as conditions to most existing authorisations.

However, to further lessen the uncertainty associated with these requirements to pause works, and in particular to encourage proponents to engage early with the Traditional Owners, the amendments in the Bill provide that this legislated pause works period need not apply to those proponents who engage with the Traditional Owners early. The new provisions encourage proponents to seek to identify Aboriginal heritage in their areas of interest, and to develop appropriate methodologies to manage them in consultation with Traditional Owners, before they apply for an authorisation. Developing heritage management methodologies before works begin is best practice and common within Cultural Heritage Management Plans. However, many proponents do not currently seek to engage with Traditional Owners or to develop such plans before applying to damage Aboriginal heritage under the Act. Now, where early engagement occurs and an appropriate discovery methodology is developed, the Minister can approve it at the same time the authorisation is granted. While discoveries would still have to be reported to the Minister so the Minister can consider taking protective action under section 24, proponents could immediately manage the discovery in accordance with their own pre-approved procedures.

Compliance with a pre-approved heritage discovery methodology will be a condition of authorisation. The Minister's urgent protective directions power under section 24 will apply in this scenario, to ensure the Minister can intervene if compliance with the condition becomes relevant.

In relation to the penalties for offences in the Act, the existing penalties in South Australia's Aboriginal Heritage Act are significantly less than those under equivalent legislation in all other Australian jurisdictions. Also, the offences have proven difficult to successfully prosecute.

The Bill will implement the Government's election commitment to increase penalties for Aboriginal Heritage Act offences by significantly increasing penalties for knowingly damaging Aboriginal heritage.

At present, the maximum penalty for destroying Aboriginal heritage in South Australia is $50,000 for body corporates and $10,000 or six months prison for individuals.

There has yet to be a successful prosecution, due to a requirement to prove that the offender intended to damage Aboriginal heritage.

Under the changes, a separate offence will be created where a defendant would need to prove that they did not know, and could not reasonably have been expected to know, the site was an Aboriginal site. This lower level offence is designed to make it easier to successfully prosecute the 'damage heritage' offence in appropriate cases.

In addition, penalties for an offence where the defendant was either reckless or intended to damage Aboriginal heritage will be increased to two million dollars for organisations and a quarter of a million dollars and/or two years prison for individuals.

The Bill will also introduce powers for the courts to make remedial, compensation and/or profit forfeiture orders against offenders who have breached the Act. These are modelled on equivalent provisions in interstate equivalent Acts and also on environmental harm offences in section 133 of the South Australian Environment Protection Act 1993.

The Bill will expressly provide that monetary penalties and/or forfeiture order amounts ordered in favour of the Crown be paid into the Aboriginal Heritage Fund established under section 19 of the Act.

Broad public consultation was undertaken on the draft Bill over five weeks from early March to early April 2023.

In addition to the Government's election commitments and the need to respond to the Kelaray case, the Bill was developed within the context of currently proposed national reforms to Aboriginal heritage legislation being considered by the Australian Government in response to the Juukan Gorge disaster. A broad Commonwealth review of Aboriginal heritage protection legislation across Australia is now underway in partnership with an alliance of peak Aboriginal representative groups. This process is expected to make recommendations for more extensive reforms to national Aboriginal heritage protection, including in respect of Aboriginal decision-making, heritage damage offences and penalties, national consistency and enhanced, early engagement and due diligence requirements for proponents seeking to impact Aboriginal heritage.

The amendments in the Bill are broadly consistent with these reforms being considered at a national level and appropriate precursors to those broader improvements to the protection of Australia's cultural heritage. Future reforms in this area will also benefit from the involvement of South Australia's First Nations Voice to Parliament.

I commend the Bill to Members and seek leave to have the Explanation of Clauses inserted into Hansard without my reading them.

Explanation of Clauses

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used in the measure.

4—Objects

This clause sets out the objects of the measure.

5—Ayers House vested in Minister

Ayers House is vested in the Minister but the clause contains restrictions on the Minister's entitlement to grant rights of interests in the property.

6—Care, control and management vested in National Trust

Care, control and management of Ayers House vests in the National Trust subject to the rights of public access and any other requirements set out in notices under the provision.

7—Liability

The National Trust will bear the liability for any claims arising in respect of Ayers House or any use of Ayers House.

8—Exemption from council rates

No council rates are payable in respect of Ayers House.

9—Regulations

This clause is a regulation making power.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of National Trust of South Australia Act 1955

1—Amendment of section 5—Objects of Trust

This clause makes a consequential amendment to the National Trust of South Australia Act 1955.

Part 2—Transitional provisions

2—No change in use of land

This clause clarifies that the resumed use of Ayers House by the National Trust will not constitute a change in use for the purposes of the Planning, Development and Infrastructure Act 2016.

3—Assignment of leases and licences to National Trust

Existing leases and licences with respect to Ayers House are to be assigned to the National Trust.

Mr TEAGUE (Heysen) (11:46): In the sort of chaotic manner in which the government has proceeded with business this morning, I was just now otherwise engaged trying to identify the provenance of a book of amendments to this bill that the government apparently filed just now. It was placed in my hand after I came to the chamber about 45 minutes ago and I am advised it was received by my office at around 19 minutes to 11 today, so it will be necessary for the house to go into committee—I will just flag that.

With that rider, because I have had a chance to have a look at the page but hardly to get to some grips with what are 15 government amendments that have been filed just now and provided to me without notice or briefing, as far as I am aware, I will need to hear what these amendments are about.

Having said that, we are yet again in territory where the government has decided to bring to this house debate on a bill that it has long known the opposition supports. I am the lead speaker for the opposition. The opposition supports the bill. There has been what I would describe as an edifying and fairly thoroughgoing process of briefing and work in relation to this bill that dates back many months.

Again, I recognise the Attorney, the Minister for Aboriginal Affairs, for his work and for his office and his advisers—his departmental advisers, ministerial advisers and others—all months ago. And yet I am presented with this bundle of 15 amendments with obviously no opportunity to form a view about them, at the same time as the government presents the house with not the first, not the second but the third guillotine within the first hour of sitting in this place, on the Tuesday morning of sitting.

It has demonstrated absolutely no reason for any one of those guillotines. We, on this side of the house, are here to participate in the debate, to add something of substance to the debate where that is relevant, and if the government has a good reason to move on a guillotine then it ought to have the decency to tell us about it, to come and explain all the reasons why there is an urgency, to highlight the importance of the legislation, and the reason why it might need to keep going all the way through. But not, at no notice, to land a guillotine on us, then another one, then another one in circumstances where at least one out of the three bills that we have found ourselves debating here this morning they have then not proceeded to pass.

We are now 50 minutes in, we are on a third guillotine and we have 60 minutes for debate on this bill. Again, we have the benefit of the explanation of clauses that the Deputy Premier has sought and obtained leave to incorporate now into our Hansard, because those explanation of clauses are available to us from the Hansard of another place, just as we have the benefit of the contribution of the Deputy Premier just now because that was a rehearsal of what took place in another place many months ago.

There are all sorts of reasons why the government wants to or needs to put on the record the matters that are orderly for the purposes of debate in each chamber, and that might involve a certain degree of rehearsal, but then that is overlaid with a combination of this bludgeoning of the house around a limitation on debate, a certain sort of grandiosity on the part of the government in delivering this wonderful beneficence to the house, all of which we know about, all of which there has been a whole lot of work done on. We have members of the minister's staff who are here present and have been closely involved in the development of this bill, and we have heard it all.

The combination of circumstances that we have been presented with this morning by the government just beggars belief. South Australians hearing about this approach to legislating on what are described as important matters will be dismayed. So I am not going to reflect on debate in relation to other bills, but that is there for all to see, for anyone who might be willing to put themselves through an analysis of the last 50 minutes of Hansard, and there will be more to say about that.

This is a bill that addresses what I will describe are a number of core matters, essentially about increasing penalties applicable to those circumstances in which Aboriginal heritage is damaged, desecrated, interfered with and so on. It updates the 1988 act. It is a range of amendments to penalties which apply the relevant necessary seriousness to those actions.

We have seen that, perhaps in the most infamous way, the desecration of Aboriginal heritage can occur in the most devastating of ways. It is well known that precious and ancient Aboriginal heritage was destroyed at Juukan Gorge. I might add that those circumstances are not entirely analogous to what this bill would cover. There is work to do in terms of the scope and nature of the permission for works of the kind that saw the destruction of the sites at Juukan Gorge, but we are in that territory. Thankfully, we are not in this bill traversing the kind of territory that we saw briefly aired in the subject of the ill-fated proposal of the Western Australian government. I just want to be clear that there has been perhaps a range of different endeavours in this regard. This bill, as I have indicated, is focused on the penalties side and their increase.

There has been some cause for reflection in this place this morning about proper process. I do acknowledge that this was a government election commitment; that is something that is an important matter to reflect on in the course of debate. The government has brought this legislation to the house. It is in line with, or pursuant to, what it has described as its election commitment. Interestingly, the government's election commitment finds its voice in the heritage section of the government's election commitments, alongside a Labor commitment to protect Adelaide's Parklands. We have seen a bit about what became of aspects of that commitment; I will just mark that along the way.

The election commitment that the Malinauskas Labor government described in its heritage election commitments document contains a commitment headed 'Aboriginal heritage protection' and it there describes the nature of the election commitment. If it perhaps does not rise as high as a sole triggering event, it is certainly an event of significance that has precipitated serious consideration in this area—that being what happened at Juukan Gorge—so it is unsurprising that the election commitment is described as follows:

The destruction of Juukan Gorge in Western Australia was a wake-up call to all Australians that our unique heritage can be wiped out in an instant. In South Australia, nuclear fuel dump proposals and drilling approval for Lake Torrens show the risks to Aboriginal heritage and the need to better include Aboriginal people in decision making.

I just pause there to indicate that we see examples cited in this part of the description of the election commitment. There is nothing more specifically about addressing particular matters of controversy.

I will come back to the case of Dare, Bilney and Ors v Kelaray Pty Ltd and the Premier of South Australia, the decision of the South Australian Court of Appeal and of the Supreme Court prior to that in the beginning of 2022. There is some reference to Dare, but here we see a reference to the relevant penalties being increased across the board, for which future actions and examples have been cited but we do not see that there is some clear, specific legislative objective to deal with a particular approval or a particular decision that the election commitment is said to remedy. Bear in mind the election commitment by definition comes along prior to March 2022. It has to. We see the decisions in Dare proceeding through 2022, and so there is context, time and subject matter. The words of the election commitment document then continued as follows:

Labor will ensure local Aboriginal communities and traditional owners are fully consulted on any proposal that would risk damaging Aboriginal heritage.

So there is an undertaking for consultation in relation to heritage. Let's be clear, this bill is fulfilling—and the government only asserts that this bill is fulfilling its election commitment, insofar as it increases penalties, including powers for the courts to make remedial compensation and profit forfeiture orders against offenders who have damaged Aboriginal heritage.

I do not see the government asserting that this bill fulfils the entirety of the election commitment that is the subject of these four paragraphs in the heritage section of the election commitment document, but we see that anyway up-front and centre as the undertaking of the government to ensure that local Aboriginal communities and traditional owners are fully consulted on any proposal that would risk damaging Aboriginal heritage.

Here we have a bill that is dealing with penalties, but I think I am given to understand that the government will need to do more should it wish to progress on that part of the election commitment. It goes on to say:

In consultation with local communities, Labor will increase financial penalties for serious breaches of Aboriginal heritage laws so penalties for destroying the past are not just seen as the cost of doing business.

That is the bit that is the subject of the bill. We have long known that. I will just complete the reference to the election commitment that moving penalties into a space where serious breaches of heritage law are not just seen as a cost of doing business.

By the way I do not think anyone, right up to including Rio Tinto that, I stress, in the circumstances of Juukan Gorge, were dealing with circumstances not analogous to this in a direct sense at all because my understanding is there is a different problem at play in those circumstances. There are actions and activities that are being undertaken with the benefit of approval, and it is the approval process in that case that needs closer review and consideration. There is no doubt that that is part of the picture.

So we have a whole chunk, if you like, of the election commitment which is still out there, to put it that way—this point about legislation for consultation on any proposal, this provision for local Aboriginal communities and traditional owners to be fully consulted. Here we are, dealing with the financial penalties part of it only, and it is well to understand that that is the context in which this is occurring. The election commitment then goes on to say that:

Labor will establish a mechanism to ensure a company cannot benefit from breaching Aboriginal heritage protection laws.

Whatever that means, I guess. If it starts with a proposition that the penalties will no longer be able to be described as a cost of doing business, well that is one way of indicating that the company cannot benefit. The question of the proper processes for approval so that everybody can have confidence that what is occurring is occurring in the light of the best knowledge and then with a view to benefits in all direction has got to be the goal and surely is the objective of all participants. I am not sure that it is necessary to couch the commitment in terms that there is some kind of mala fides at play and that actors in the space will be out there looking to get away with whatever they can get away with, to put it bluntly.

What is true is that we have seen that there can be serious consequences of actions occurring with or without approvals in place. So we need to have a high-quality application and approval process, one that is reliable, and, where there are breaches of that high-quality and reliable process, then, sure, we need to be in a space where such breaches are not regarded as a cost of doing business. I just suggest that the mutual interests of all concerned ought to be really put to the fore in terms of the way that that is described. Hence, here in the house today, talking about the increasing of penalties is a kind of asinine aspect of the process in a way.

It is always the simplest resort, in a whole variety of ways—you increase penalties, then you create a kind of signal of intent or something but you do everybody a favour if the substantial work is done to ensure that there can be confidence in the processes that we have for the consideration, appreciation and understanding of heritage that is in everybody's interest, and then, in turn, that proposals are undertaken for the benefit of all South Australians and particularly the benefit of relevant local Aboriginal communities. Just so as not to do a disservice to the election commitment, it concludes by stating the following:

Better protection will preserve priceless heritage and, where culturally appropriate, ensure that it can continue to be shared with visitors from home and overseas.

So, again, that is the commitment. It is there, and in its own words, the government has described its objectives in this regard. If there is something that I stress and, indeed, stress to the point of repetition, it is that penalties alone will not do the necessary work. We need to ensure that there is a quality of decision-making and that there is confidence in that process for the benefit of all concerned. In that regard, the jury will remain very much out in terms of how this matter proceeds.

It is perhaps also timely to note in the context of all of this the work of the now defunct Aboriginal Lands Parliamentary Standing Committee, working as it did in the early part of this Fifty-Fifth Parliament to complete its inquiry into Aboriginal heritage. Already well documented is my dismay at the government's decision to disband the standing committee to the extent that that has been the subject of a bill before the house. I will not reflect on it in that way.

To the extent that it is the subject of a bill in my name before the house to reinstate the committee, I will not reflect on that either, but a matter of dismay and the dismantling of productivity of this place it remains, in my view. But I do reflect, perhaps to advertise the work that a standing committee working in the interests of Aboriginal lands and other matters of particular interest to Aboriginal people can do, that this work which the eventual final report of the committee's inquiry into Aboriginal heritage was—and I just want to do the right thing by our former presiding member, the Hon. Tung Ngo, in this regard, and be accurate about this.

The work of the committee spanned over both this parliament and the previous parliament. As the presiding member observed, the inquiry was originally advertised in February 2021, it commenced receiving oral evidence in October 2021, and then it was not progressing too much further due to the March 2022 election. So it was for the newly established committee, at the commencement of this parliament, to determine what to do about that, and the committee on its re-establishment decided to proceed with the inquiry and to complete the inquiry.

So, somewhat unusually, it was work done over two parliaments, and I was pleased to contribute in some small way to participate in the committee at the time that this work was done. I highlight it because it is a useful point of reference, I think, for members to consider a wrap-up of a number of different aspects of reforms in Aboriginal heritage that are relevantly in play.

I have spent some moments focusing on the government's election commitment. This has also been an area of considerable focus of the parliament—by the standing committee, as it then was—in terms of the consideration of reform to Aboriginal heritage legislation, which primarily focused on the Aboriginal Heritage Act 1988.

The six recommendations of the committee are there for all to reflect on, and, perhaps for reasons that might be obvious, they go wider than what this bill is addressing. They include recommendations for the Aboriginal Heritage Act to increase financial penalty provisions. I might just set out what that is. It is the subject of recommendation 1(b). For context, recommendation 1 provides as follows:

The Committee recommends a comprehensive reform of the Aboriginal Heritage Act 1988 (SA)…be undertaken by the Minister for Aboriginal Affairs…taking into account the evidence received in this Inquiry to date and the Commonwealth review of Aboriginal Heritage legislation. The Committee supports a modernisation of the State's current Aboriginal heritage protection regime in accordance with community expectations, the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation—

that 'standards' reference is further particularised in the report, and I commend it—

and recent reforms made to heritage protection legislation in other jurisdictions. The Committee recommends that the Minister for Aboriginal Affairs introduces the following amendments to the [Aboriginal Heritage] Act…

I will get to (b), but (a) provides:

The Committee recommends that the current definitions of Aboriginal heritage protection in the [Aboriginal Heritage] Act be expanded. The Committee supports the inclusion of intangible heritage and expanding the definition of Aboriginal remains to include all bodily remains, instead of limiting it to skeletal remains. This has been recently reformed in the Western Australian Aboriginal Cultural Heritage Act 2021…

Moving to (b), and this is the subject of the narrow focus of this bill:

The Committee recommends that the [Aboriginal Heritage] Act financial penalty provisions be increased, to reflect community expectations in relation to the protection of Aboriginal cultural heritage. The Committee also recommends that civil penalties and expiation notices be introduced for harm to Aboriginal heritage (rather than solely criminal offences), similar to that which have been introduced in other Australian jurisdictions such as the ACT and Victoria.

The report in its recommendations goes on to deal with reforms to registered native title bodies corporate and it recognises Aboriginal representative bodies. I will not pause to reflect on the balance of those recommendations, but we see it there, the subject of the work of the standing committee as it then was, in the course of this parliament a bit over a year ago recommending that penalties be in the mix of reforms.

It is no surprise, therefore, against the background of the government election commitment that I have endeavoured to articulate and put in some sort of context, and the work of the standing committee, as well as the broader debate of course, that we see this piece of legislation coming to the parliament. As I indicated at the outset, the opposition has made clear its support for the bill, and the bill has been around the place now for the better part of the year, or more now. It was introduced after the work done in the early part of 2023, and the minister in another place moved and addressed the second reading back in May 2023.

Support has long been well known, so in those circumstances to have a bundle of amendments now here at the last minute is something that I think would be better dealt with by other means. If the house is of that view, I foreshadow that it may well be practicable to deal with the content of these amendments, other than by means of a sudden committee process. It may well be that these are entirely uncontroversial and that the house can be unanimous in its approach to this aspect of the debate. It is with those sentiments that I would for the time being seek leave to continue my remarks.

Leave granted; debate adjourned.