Legislative Council: Tuesday, February 06, 2024


Aboriginal Heritage (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 May 2023.)

The Hon. J.M.A. LENSINK (16:17): I rise to place remarks on the record in relation to this legislation, which is part of the government's election commitments to increase penalties under the Aboriginal Heritage Act for offences against Aboriginal heritage items, to make reparations (compensation, etc.) and a range of important things to protect Aboriginal heritage in this state.

There are a range of penalty increases, which I will not go into in detail, but I understand that these bring these more into line with other jurisdictions. Since the promulgation of this policy, a significant court case was delivered by the Supreme Court in Dare, Bilney and Ors v Kelaray Pty Ltd, Premier of South Australia, so that has had an impact on the ambiguity, if you like, of the current laws in relation to acts which might have an impact on Aboriginal heritage.

The government has consulted on the draft legislation and also is attempting to address that through this particular legislation. There are quite a number of technical matters that are dealt with in this legislation, and we support the intent and the actions in the bill and look forward to the committee stage of debate.

The Hon. T.A. FRANKS (16:19): I rise today to speak on behalf of the Greens in support of this legislation, a step in the right direction and I hope the first of many changes to come for Aboriginal heritage in this state. Every time we speak in this place we are, of course, speaking on the unceded lands of the Kaurna people—in this building. I want to acknowledge elders past and present and recognise all First Nations people right across our state who have fought and who continue to fight for the rights of their people to protect their culture, practise their law and fight for their voices to be heard.

We are privileged to have in this nation the oldest continuous living culture in the world. They have cared for this land, preserved the waters and ecosystems, and navigated by the stars in the sky for tens of thousands of years. Since colonisation, our First Nations people have been fighting to survive. The frontier wars saw them chained and massacred, raped and tortured, their lands stolen and their children stolen.

Today, they continue to fight governments and fossil fuel billionaires who are destroying their sacred places, meeting places for ceremony and cultural business, and ancestral songlines. Unfortunately, too much of this has already been destroyed. We have seen this at Koonalda Cave, Lake Hart West, Lake Torrens and Kimba, and now, more recently, we have developments at Nilpena Ediacara National Park and Buckland Park, aka Riverlea. The list goes on and on and time and time again we have seen the cultural heritage of traditional owners tossed aside in the name of corporate interest—or I will call it what it is: corporate greed.

These sites are important not only to traditional owners but to all of us in this country. First Nations people or not, this is our collective history, it is our culture and we should all be proud of this. We should be eager to protect Aboriginal heritage. It is unacceptable that time and time again First Nations people are being forced to give up and, in fact, made to stand by and watch as people rip the soul out of their country—our country.

Plain and simple, our laws do not do enough to provide protection, not even enough to get any kind of conviction under the very legislation that was supposed to protect Aboriginal heritage. Fines are weak and fail to act as a deterrent to damaging Aboriginal heritage. We have seen interstate that weak Aboriginal heritage laws can cause significant harm. The Greens do not want to see yet another instance of billion-dollar companies damaging sacred sites over 10,000 years old, so this bill is most welcome.

The bill promises change in three key areas. Firstly, this legislation seeks to implement significant increases to penalties for offences under the Aboriginal Heritage Act. It proposes to increase fines by as much as 25 times and also either double or quadruple maximum prison sentences. This is welcome. Under the current act, a person may face either a fine or imprisonment for committing an offence. This bill will now propose that both fines and prison sentences could be imposed. These amendments would mean that South Australia would have some of the most significant penalties for causing harm to cultural heritage in Australia. Finally, an appropriate step in the right direction, and it is not lost on me that in this state we do actually have some of the weakest Aboriginal heritage protections in the country.

In addition to any penalties for offences under the current act, this bill proposes that a court may also order an individual or company to pay money towards the repair, restoration or reinterment of Aboriginal heritage or any other costs incurred to make good any other harm; pay an Aboriginal party a sum determined by the court for reasonable costs, or compensation for harm suffered; pay an amount estimated by the court as 'economic benefit' that was received as a result of that contravention; or take specified action to publicise the contravention and its consequences—a name and shame provision.

The bill also clarifies reporting obligations for Aboriginal cultural heritage discoveries where, if there are any discoveries of Aboriginal heritage, work must immediately be stopped and the discovery must be reported to the minister, even where the person making the discovery holds an authorisation under the act. Authorisations may be granted to classes of persons and cover all Aboriginal heritage in an area, whether known or unknown.

As explained by the Minister for Aboriginal Affairs, these amendments are in response to the decision from the 2022 South Australian Supreme Court in Dare, Bilney and Ors v Kelaray. In that case, Chief Justice Kourakis set aside a decision of the previous Premier, who was also the then minister for Aboriginal affairs, to grant an authorisation to Kelaray under the Aboriginal Heritage Act in connection with exploration activity at Lake Torrens, ruling the authorisation was invalid on the basis its terms were inconsistent with another Aboriginal heritage protection in the act. In making his determination, the minister had relied on Kelaray's chance find procedures, which was part of its cultural heritage management plan to protect Aboriginal sites, objects and remains.

The chance find procedures allowed interference with an object or site in accordance with the advice of expert anthropologists or Aboriginal representatives of its choice before the minister was notified. Unfortunately, this decision has since been overturned by the Court of Appeal. Time and time again, we have heard that cultural heritage laws in this country are too weak and they must be strengthened. This is our opportunity to walk the talk and finally hold a higher standard, a standard that we so desperately need in this state. We know that we must do it right and with the support of First Nations people.

Successive government legacies have taken advantage of our too-weak clause at the expense of traditional owners in this country and at the expense of First Nations cultural heritage in this country. You may ask what the solution to that is. The solution is actually quite simple: it is to adopt all three elements of the Uluru Statement from the Heart, plus stronger cultural heritage laws and other legislative changes that promote the UN Declaration on the Rights of Indigenous Peoples.

These all play a pivotal and important role in protecting our cultural heritage, and the Greens will keep fighting for all of them to be included in our legislation, one way or another. I again reiterate the Greens' support for the bill and we look forward to more changes to our Aboriginal Heritage Act, along with the informed decision-making that we will benefit from once we have a State Voice to Parliament.

The Hon. C. BONAROS (16:26): I rise to speak very briefly in support of the Aboriginal Heritage (Miscellaneous) Amendment Bill 2023. The bill, as we know, seeks to advance a Labor election commitment by increasing financial penalties for breaches of the Aboriginal Heritage Act 1988, something the Hon. Ms Tammy Franks has just spoken to at length, and also canvass the issue of how our penalties here fare compared to other jurisdictions. It has also been drafted in response to the recent Court of Appeal decision in Kelaray Pty Ltd v Dare and Ors 2023 to clarify reporting requirements following the discovery of Aboriginal heritage.

I do not propose to go over the technical aspects of the bill again, which the Attorney has made an exemplary job of doing previously. We have been told that the bill is the subject of broad consultation and no major issues have arisen. That said, I do note the very sensible comments of the Hon. Tammy Franks and echo many of the sentiments she has just expressed. She probably has a greater depth of knowledge in this area than most of us, so I thank her for that contribution today.

I do know that there is a commonwealth review of the Aboriginal heritage protection legislation underway, which is supposed to complement our state laws, and I think we all look forward to the recommendations for more extensive reforms as they become available, particularly given the issues that have been highlighted today in this place by the Hon. Ms Tammy Franks. With those very few words, I indicate my support for the bill.

The Hon. T.T. NGO (16:28): I am honoured to stand and speak in support of a bill that protects and updates this state's Aboriginal heritage protection legislation. As the former presiding member of the Aboriginal Lands Parliamentary Standing Committee, South Australian government regulation and policy around Aboriginal heritage protection is especially important to me personally.

We all know our Aboriginal culture dates back some 60,000 years and is the oldest living culture in the world. Aboriginal heritage such as rock art, ancient caves, burial sites, waterways and ceremonial sites hold significant value. The social, spiritual, historical, artistic and scientific importance of Aboriginal traditions are precious and essential links to Aboriginal peoples past, present and future.

This bill implements the Malinauskas government's election commitment to increase penalties under the Aboriginal Heritage Act 1988 for offences, including 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 destruction of Indigenous heritage sites at the Juukan Gorge in Western Australia sparked outrage in Australia and around the world and instigated a review of Aboriginal cultural heritage protection throughout Australia. We know that on 24 May 2020, as part of Rio Tinto's expansion of the Western Australian Brockman 4 mine, the Juukan Gorge cave was tragically destroyed by explosives, along with another Aboriginal sacred site. This was despite the Puutu Kunti Kurrama people (PKKP) urgently requesting the blasting be stopped five days beforehand.

At this time in WA, the Aboriginal Heritage Act 1972 did not allow for mining consent to be renegotiated on the basis of new information. The PKKP's significant new information could not be used by the minister to save it and the blasting at Juukan Gorge went ahead legally under a section 18 exemption in the act because an authorisation had already been granted.

To help South Australia avoid such a tragedy, discoveries of Aboriginal heritage will now also include discoveries of significant new information about known heritage. Early in 2023, the Malinauskas 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 that arose from the mining company Kelaray Pty Ltd and that company's decision in connection with its exploration activity on and around Lake Torrens in SA, which connects to section 20 of the act.

Under section 20 of the act, discovery of Aboriginal sites, objects or remains must be reported 'as soon as practicable' to the minister. In this case, SA's Chief Justice Kourakis found that Kelaray's cultural heritage management plan did not comply with that requirement. The Supreme Court found that the company's cultural protection measures were not sufficient under the Aboriginal Heritage Act. This outcome resulted in making very clear requirements in the act for reporting discoveries of Aboriginal heritage, which include discoveries of new information about heritage.

In collaboration with the State Aboriginal Heritage Committee, the Labor Malinauskas government intends to develop detailed guidelines for dissemination under the act that specify the requirements for a heritage management methodology to be approvable. These guidelines will encourage the identification of Aboriginal heritage in a proponent's area of interest, so that appropriate methodologies are developed to manage them in consultation with traditional owners before they apply for an authorisation.

It is a requirement to prove that the offender intended to damage Aboriginal heritage and due to this there has not been a successful prosecution in South Australia. This bill aims to fix this shortfall by creating a separate offence 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 lower level offence proposes to make it easier to successfully prosecute damage to Aboriginal heritage in appropriate cases. Currently, 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.

This bill proposes that penalties for the offence, where the defendant was either reckless or intended to damage Aboriginal heritage, will increase to $2 million for organisations and $250,000 and/or two years' imprisonment for individuals. These increases will more effectively discourage serious breaches of Aboriginal heritage laws from being viewed as just an additional business cost. The bill will also propose that monetary penalties ordered in favour of the court be paid into the Aboriginal Heritage Fund established under section 19 of the act.

In addition to the Labor Malinauskas election commitment, this bill evolves within the context of the currently proposed national reform to Aboriginal heritage legislation that addressed the Juukan Gorge tragedy. As I have already acknowledged, this bill gave consideration to responses from the Kelaray case in South Australia, as well as recommendations from the Aboriginal Lands Parliamentary Standing Committee's heritage inquiry report presented in this chamber recently. On behalf of the government, I commend the bill to the house.

Debate adjourned on motion of Hon. D.G.E. Hood.