Aboriginal Heritage (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:26): Obtained leave and introduced a bill for an act to amend the Aboriginal Heritage Act 1988. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:27): I move:

That this bill be now read a second time.

This bill implements the Malinauskas government's election commitment to increase penalties under the Aboriginal Heritage Act 1988 for 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.

The now government's heritage policy committed to legislate to increase protection of Aboriginal heritage. Specifically, it committed to increase financial penalties for serious breaches of Aboriginal heritage laws so that penalties for destroying the past are not just seen 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 [2002] SASC 91, a judicial review of an authorisation granted under the Aboriginal Heritage Act, was delivered on 25 August 2022.

That decision created significant uncertainty not just for government but for other land use proponents that hold or seek to hold an authorisation under that act to damage, disturb or interfere with Aboriginal heritage to enable development projects. Early in 2023, the government consulted publicly on draft legislation not just to increase the penalties in the act in line with our election commitment but also to address the uncertainties arising from the first instance Kelaray decision by enshrining in the act clear requirements for reporting discoveries of Aboriginal heritage, which includes discoveries of new information about heritage.

Mining exploration company Kelaray Pty Ltd appealed that Supreme Court decision that invalidated the authorisation under section 23 of the Aboriginal Heritage Act. On 11 May 2023, the Supreme Court of South Australia Court of Appeal in this matter allowed the appeal and held that the authorisation was valid. Importantly, the Court of Appeal confirmed that the requirement in section 20 of the act to report discoveries of Aboriginal heritage immediately to the Minister for Aboriginal Affairs and the ability of 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 impact heritage within an authorisation area.

The government's proposed reforms that arose from considerations in the Kelaray case are needed to enshrine certainty into the act around the requirements of reporting a discovery of Aboriginal heritage, whether it is in an area where the impacts of heritage have been authorised or otherwise.

As mentioned, discoveries of Aboriginal heritage will now also include discoveries of significant new information about known heritage. This will help South Australia avoid tragedies such as we saw in Juukan Gorge in Western Australia in 2020. There, the discovery of significant new information about an outstanding and irreplaceable Aboriginal heritage site could not be used by the minister to save it because the information was discovered after an authorisation had already been granted.

This bill amends the proposed mandated time lines for ministerial notification and response in relation to heritage discoveries. This is to address any potential concern about open-ended work stoppages and create greater certainty for all users. The bill will also amend the act to make explicit the accepted principle, confirmed again in the Court of Appeal in Kelaray, that section 21 and 23 authorisations may be granted to classes of persons and cover all heritage in the area.

The bill amendments provide for mandated notification processes for Aboriginal heritage that is 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 lengthy consultation notifications currently required under sections 13 and 24(4) of the act.

The notification processes will require the developer or other proponents to pause work near the discovery for up to five business days for Aboriginal sites or objects or up to 10 business days for Aboriginal remains to allow the minister to respond to such notification. During this time the minister will assess the importance of the discovery and the proponents' proposed methods for dealing with it and whether any urgent action needs to be taken to protect the discovery, as opposed to the current situation where proponents generally decide what to do with a discovery before reporting it to the minister.

In practice, any works pauses upon heritage discoveries are likely to be for a lesser time than the statutory maximums. In concert with the State Aboriginal Heritage Committee, the government intends to 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 I mentioned before in the case of Juukan Gorge in Western Australia, 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 help to formalise and continue some of the current practices under heritage discovery protocols which are often imposed as conditions in authorisations.

However, to further lessen the uncertainty associated with these requirements to pause work, and in particular to encourage proponents to engage early with traditional owners, the amendments in this bill provide that this legislated pause works period need not apply to those proponents who engage with traditional owners early. The new provisions encourage proponents 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 is common within Cultural Heritage Management Plans. However, in cases where 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 as the authorisation is granted.

While discoveries would still have to be reported to the minister so that the minister can consider taking protective action under section 24, proponents could manage the discovery in accordance with the pre-approved procedures. Compliance with the 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 those conditions becomes relevant.

In relation to the penalties for offences against the act, the existing penalties in South Australia's Aboriginal Heritage Act are significantly less than those under equivalent legislation in other Australian jurisdictions. Also, the offences have been difficult to successfully prosecute. The bill will implement the government's election commitment to increase penalties for Aboriginal heritage 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 a body corporate and $10,000 or six months' imprisonment for individuals.

There has yet in South Australia to be a successful prosecution, due in large part to the 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 they did not know and could not reasonably have been expected to know the site was an Aboriginal site. This low-level offence is designed to make it easier to successfully prosecute the damage heritage offence in appropriate cases.

In addition, penalties for the offence where the defendant was either reckless or intended to damage Aboriginal heritage will be increased to $2 million for organisations and $250,000 and/or two years' imprisonment for individuals. The bill will also introduce powers for the court to make remedial compensation and/or profit forfeiture orders against offenders who have breached the act. These are modelled on similar provisions in interstate-equivalent acts and on the 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 court, be paid into the Aboriginal Heritage Fund established under section 19 of the act. Broad public consultation was undertaken on a draft bill earlier this year, from early March to April 2023. In addition to the government's election commitments, and these responses to the Kelaray case, the bill was developed within the context of the currently proposed national reforms to Aboriginal heritage legislation being considered by the Australian government that were particularly in response to the Juukan Gorge disaster.

The 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 later this year, including in respect of Aboriginal decision-making, heritage damage offences and penalties, national consistency, enhanced early management and due diligence requirements for proponents seeking to impact Aboriginal heritage.

The amendments in this bill are broadly consistent with those reforms being considered at the national level, and are appropriate precursors to those broader improvements, the protection of Australia's cultural heritage. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Aboriginal Heritage Act 1988

3—Amendment of section 3—Interpretation

This clause updates a reference to the Petroleum and Geothermal Energy Act 2000.

4—Amendment of section 6—Delegation

This clause makes a consequential amendment.

5—Amendment of section 10—Confidentiality of archives

This clause increases the maximum penalty for an offence against section 10 of the principal Act.

6—Amendment of section 13—Consultation on determinations, authorisations and regulations

This adds exceptions to the need to consult on certain decisions etc under the Act, where the decision either contains its own requirements, or is consequential on decisions for which consultation had already occurred.

7—Amendment of section 14—Authorisations subject to conditions

This clause increases the maximum penalties for an offence against section 14 of the principal Act.

8—Amendment of section 18—Offences

This clause increases the maximum penalty for an offence against section 18 of the principal Act.

9—Amendment of section 19—The Fund

This clause makes a consequential amendment to section 19 to allow certain monies payable under new section 37DA to be paid into the Fund.

10—Amendment of section 19L—Interaction of Division with other provisions

This clause clarifies that the Division in which section 19L of the principal Act sits does not limit the operation of section 20.

11—Amendment of heading to Part 3 Division 1

This clause makes a consequential amendment to the heading of Part 3 Division 1 of the principal Act.

12—Amendment of section 20—Discovery of sites, objects or remains

This clause increases the maximum penalties for offences against section 20 of the principal Act, and makes consequential amendments reflecting the inclusion of new sections 20A and 20B.

13—Insertion of sections 20A and 20B

This clause inserts new sections 20A and 20B as follows:

20A—Activity occurring under authorisation to cease on discovery of certain sites, objects and remains

This section requires persons acting pursuant to a Ministerial authority given under section 21 or 23 who discover certain Aboriginal heritage to cease work until the earlier of the matters stated in subsection (1)(c) to (e) occurs. The section sets out Aboriginal heritage to which that obligation does not apply, including where a person has, in consultation with traditional owners and in accordance with the section, prepared a management methodology to deal with Aboriginal heritage discovered while so acting.

20B—Reporting discovery of sites, objects or remains discovered while acting under authorisation

This section requires persons acting pursuant to a Ministerial authority given under section 21 or 23 who discover certain Aboriginal heritage while doing so to report the discovery to the Minister. Similarly, employees etc of the person (including traditional owners) are required to report discoveries to the person.

14—Amendment of section 21—Excavating sites, objects or remains

This clause increases the maximum penalty for an offence against section 21 of the principal Act, clarifies that an authorisation under the section can be class-based, and makes consequential amendments reflecting the inclusion of new sections 20A and 20B.

15—Amendment of section 22—Access to and excavation of land by authorised persons

This clause increases the maximum penalty for an offence against section 22 of the principal Act.

16—Repeal of heading to Part 3 Division 2

This clause deletes the heading to Part 3 Division 2 of the principal Act.

17—Substitution of section 23

This clause substitutes a new section 23, increasing the maximum penalty for an offence against the section, clarifies that an authorisation under the section can be class-based, and makes consequential amendments reflecting the inclusion of new sections 20A and 20B.

18—Amendment of section 24—Directions by Minister restricting access to sites, objects or remains

This clause modernises section 24 of the principal Act, reflecting the new provisions inserted by this measure and clarifying the relationship between directions under the section and other authorisations or instruments.

19—Amendment of section 25—Directions by inspector restricting access to sites, objects or remains

This clause amends section 25 of the principal Act to retain consistency with amended section 24.

20—Amendment of section 26—Failure to comply with directions of Minister or inspector

This clause increases the maximum penalty for an offence against section 26 of the principal Act.

21—Amendment of section 28—Care of Aboriginal objects

This clause increases the maximum penalty for an offence against section 28 of the principal Act.

22—Amendment of section 29—Control of sale of and other dealings with objects

This clause increases the maximum penalty for an offence against section 29 of the principal Act and provides that authorisations under the section can be class-based.

23—Amendment of section 32—Surrender of objects and records

This clause increases the maximum penalty for an offence against section 32 of the principal Act.

24—Amendment of section 35—Divulging information contrary to Aboriginal tradition

This clause increases the maximum penalty for an offence against section 35 of the principal Act.

25—Amendment of section 36—Access to land by Aboriginal people

This clause increases the maximum penalty for an offence against section 36 of the principal Act.

26—Insertion of Part 3A

This clause inserts a new Part 3A into the principal Act. New section 37DA allows a court that has found a person guilty of a contravention of the Act to order the person to pay compensation or take other action, or to account for profits, in relation to the contravention.

27—Amendment of section 38—Interference with signs

This clause increases the maximum penalty for an offence against section 38 of the principal Act.

28—Repeal of section 44

This clause deletes section 44 from the principal Act.

29—Amendment of section 45—Commencement of prosecutions

This clause makes a consequential amendment following the increases in maximum penalties under the measure.

Debate adjourned on motion of Hon. L.A. Henderson.