Juukan gorge

Cultural Heritage Reform Update: The South Australian Aboriginal Heritage Act Amendment Bill and the Commonwealth response to the Juukan Gorge Inquiry

Cultural Heritage Reform Update

The South Australian Aboriginal Heritage Act Amendment Bill and the Commonwealth response to the Juukan Gorge inquiry

In 2023 we saw the legislative response to the destruction of sacred caves at Juukan Gorge twist, turn and backflip in Western Australia. Now, in 2024 the Commonwealth government and the South Australian government (along with other jurisdictions across Australia) continue to wrestle with their own legislative reform agendas on cultural heritage.

In the long shadow of the Voice referendum it remains unclear when and how the Commonwealth reform agenda will progress, although the Commonwealth continues its commitment to selecting an option for legislative reform following its initial options paper. The year ahead promises some movement with the South Australian Aboriginal Heritage Act Amendment Bill passing the Legislative Council on 8 February 2024 and now awaiting debate in the House of Assembly in State parliament.

Read on below for a brief summary of the two reform agendas.

Reform of the South Australian Aboriginal Heritage Act 1988

In May 2023 the South Australian government introduced the Aboriginal Heritage (Miscellaneous) Amendment Bill 2023 (Amendment Bill) to amend the Aboriginal Heritage Act 1988 (Act). On 8 February 2024 the Bill passed the Legislative Council without amendment and with the apparent support of both major parties and the Greens. It now sits in the House of Assembly awaiting second reading and debate.

The Bill honours an election commitment by the Government to increase penalties and additionally clarifies and strengthens the obligations on anyone (including an authorisation holder) who discovers protected items, sites or remains.

If passed, the Bill will amend the Aboriginal Heritage Act to:

  • Clarify that the obligation to stop work and report a heritage discovery is applicable to discoveries made whilst undertaking activities pursuant to an authorisation from the Minister under the Act (consistent with the decisions of the Supreme Court in the recent decisions of Dare, Bilney & others v Kelaray Pty Ltd & Premier of South Australia[1] and Kelaray Pty Ltd v Dare & others[2]), unless the discovered object, site or remains was specified in the relevant authorisation, is already known to the Minister, or is the subject of a management methodology approved by the Minister at the time the relevant authorisation was given.
  • Create new offences for:
    • failing to report a heritage discovery to the Minister,
    • failing to stop work being undertaken under an authorisation upon suspecting or knowing a heritage discovery has been made (noting the above exemptions); and
    • intentionally or recklessly damaging, disturbing or interfering with a heritage object, site or remains without authorisation.
    • Increase penalties for existing offences under the Act to between $10,000 – $2 million or 2 years imprisonment (increased from between $2000 – $50,000 or 6 months’ imprisonment currently).

Commonwealth reform

Separately, the Federal Government is continuing consideration of its legislative response to the Parliamentary Inquiry into the destruction of culturally sacred rock shelters in Juukan Gorge by Rio Tinto in May 2020.

Following the conclusion of the Inquiry and publication of recommendations by the Senate Joint Standing Committee on Northern Australia in October 2021, the Federal Government tabled its response to the Inquiry on 24 November 2022. It agreed in principle to seven of the eight recommendations of the Senate Inquiry and set out an overarching approach of co-design and partnership with First Nations peoples to reform heritage protections, by partnering with First Nations Heritage Protection Alliance (FNHPA).

Who are the First Nations Heritage Protection Alliance?

The FNHPA is a coalition of member organisations representing First Nations Peoples from across Australia who came together in June 2020 following the destruction of the Juukan Gorge Caves. Its mandate is to strengthen and modernise cultural heritage laws and to create industry reforms that ensure Indigenous Cultural Heritage is valued and protection for the future. More detail about its membership and activities can be found here.

Legislative Reform Options

The initial Options Paper published by FNHPA stated that “the overwhelming message from the first stage of national engagements is that reform of the First Nations cultural heritage protections is urgent and necessary, in the context of the ongoing destruction of First Nations heritage…. Doing nothing is not a viable option.” The Paper specified three legislative reform options for further consultation:

  1. Overarching federal standalone legislation which would repeal the existing Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act)
  2. Federal accreditation of State and Territory legislation where mandatory national standards are met, and the repeal of the ATSIHP Act
  3. ‘Model’ legislation, and exemption from the ATSIHP Act once enacted.

Other options considered, but ultimately rejected in that initial Options Paper, included the reform of the existing federal laws including the ATSIHP Act and the Environment Protection and Biodiversity Conservation Act 2003 (EPBC Act) to strengthen heritage protection.

The FNHPA was to consult on the three recommended options in early 2023 and to prepare a second paper on those options with recommendations to the Government. However, statements from Federal Minister for the Environment and Water, Tanya Plibersek, and the FNHPA confirmed in the lead up to the Voice referendum that further recommendations were not expected prior to the referendum and likely not until early 2024.

Further, there are now clear suggestions from the FNHPA and the Government that the initial Options Paper was too hasty in narrowing the options and that they may revisit the range of legislative reform options. The potential for reform through the Federal Government’s broader Nature Positive reform agenda (including reform and/or potential replacement of the EPBC Act) now appears possible, although the Government has given nothing away at this point.

Minister Plibersek has always been clear that there is no commitment to a timeline for legislative reform, indicating that the process will take as long as is needed to consult and get it right.

Other than the suggestion that further recommendations might be put to the Minister by the FNHPA early this year, there is no indication as to when this next round of consultation will conclude or the timing of  any further decision made on legislative reform options.

In the meantime, each State in Australia has conducted, or is in the process of conducting its own review of its State based cultural heritage protection legislation, and reforms have either been made or foreshadowed in each State.

If you’d like to know about the legislative reform to cultural heritage in South Australia or across the nation you can contact Ali Field at asf@bllawyers.com.au, James Levinson at jal@bllawyers.com.au or Lydia Hart at lrh@bllawyers.com.au or on 08 8212 9777.

[1] [2022] SASC 91 (25 August 2022)
[2] [2023] SASCA 46 (11 May 2023)