The South Australian government has recently released the Aboriginal Heritage (Miscellaneous) Amendment Bill 2023 (Amendment Bill) to amend the Aboriginal Heritage Act 1988 (SA) (Act). The Amendment Bill is in part a direct response to the 2022 decision of the Supreme Court in Dare v Premier of SA & Kelaray Pty Ltd¹ and can be seen as a clear reinforcement of the findings of the Court in respect of the operation of the Act. It also meets an election commitment to increase penalties for offences under the Act and signals the commitment of the State Government to the national movement to strengthen Aboriginal heritage protection laws in response to the Juukan Gorge inquiry.
The Amendment Bill re-frames reporting and stop work obligations, substantially increases penalties for offences, and provides the Court with additional powers to remedy contraventions and compensate affected parties.
New reporting and stop work obligations
The Amendment Bill introduces a new section 20A, which imposes an obligation directly on holders of an authorisation under the Act to report any discovery of Aboriginal heritage made while acting under the authorisation to the Minister. The obligation cannot be amended by conditions of an authorisation.
A new section 20B introduces an immediate obligation on holders of authorisations under section 21 or 23 of the Act to stop work within 3 metres (or 5 metres for aboriginal remains) where Aboriginal heritage is discovered (including where suspected Aboriginal heritage is discovered). The obligation expressly applies where the authorisation holder does not know but suspects, or ought to reasonably suspect, a discovery is an Aboriginal heritage site, object or remains. Activity is not permitted to resume until either (a) the Minister has authorised resumption, (b) issued a direction for protection or preservation, or (c) a proposed methodology for avoiding or managing the Aboriginal heritage site, object or remains has been provided to the Minister in accordance with any requirements determined by the Minister and 5 days have passed since it was provided (or 10 days in the case of aboriginal remains).
Increased Penalty Provisions
The Amendment Bill proposes significant increases to maximum penalties for existing offences under the Act and establishes offences for breaching new sections 20A and 20B.
Previously the maximum penalties under the Act ranged from $2,000 – $10,000 or imprisonment for 6 months for individuals and up to a maximum of $50,000 for a body corporate. Those maximum penalties now range from $10,000 – $250,000 or imprisonment for 2 years for individuals, or up to a maximum of $2 million for a body corporate. Maximum penalties applicable to authorisation holders who fail to report a discovery to the Minister, and who fail to stop work upon discovering a site, object or remains they suspect or know to be Aboriginal heritage are $500,000 in the case of a company authorisation holder and $250,000 or 2 years’ imprisonment in the case of an individual authorisation holder.
The Amendment Bill also creates a new more serious offence for intentionally or recklessly damaging, disturbing or interfering with Aboriginal heritage sites, objects of remains without authorisation (Section 23). A company faces a maximum penalty of $2 million, and an individual $250,000 and/or 2 years imprisonment. The existing strict liability (ie. not intentional or reckless) offence is retained as the second category of offence with no increase to maximum penalties.
The Amendment Bill also introduces a defence for the strict liability offence if the defendant can prove that they did not know, and could not reasonably have been expected to have known, that the site, object or remains to which the alleged offence relates was an Aboriginal site, object or remains.
Additional powers of the court to remedy contraventions of the Act
In addition to imposing fines and imprisonment for breaches of the Act, section 37DA of the Amendment Bill proposes a raft of additional orders that a court may impose on a company or person who commits an offence under the Act including:
- Paying money for or towards reparation, restoration or reinternment of a site, object or remains;
- making good any harm or damage caused by the contravention;
- publicising the contravention and consequences;
- paying an Aboriginal party’s reasonable costs and expenses incurred, or compensation for harm suffered, as a result of the contravention; and
- paying an amount equal to the ‘economic benefit’ acquired by the offender as a result of the contravention.
Validity of Existing Authorisations
In response to the decision of the Supreme Court in Dare v Premier of SA & Kelaray Pty Ltd, where it was held that Kelaray’s section 23 authorisation was invalid because it was inconsistent with the reporting obligation under section 20, the Amendment Bill protects other existing section 23 authorisations vulnerable to challenge on the same basis. It provides that those existing Ministerial authorisations remain valid despite any inconsistency with section 20 of the Act.
You can learn more about the Supreme Court’s decision in Dare v Kelaray in a previous article here.
More amendments foreshadowed
The State Government has explicitly stated that it is not seeking to introduce major changes to the South Australian legislation until the national reform process for the protection of Aboriginal heritage being conducted by the Federal Government is complete.
Clearly major reform in this area is on the horizon. The federal reform process is ongoing and is currently in its second stage of preliminary engagement. While several options are being considered, which may include the State Government adopting ‘model’ legislation, no timeframe for these changes has been set at this stage.
You can learn more about the reform options being considered Options Paper: First Nations cultural heritage protection reform here.
What this means looking forward…
The new provisions are likely to change the way in which Aboriginal heritage is managed in projects in SA, and there is a clear potential for project timelines to be impacted. Now is the time to consider what the Amendment Bill will mean for the system for protection of Aboriginal heritage and correspondingly for your operations. Feedback can be provided to the State Government up until 10:00 am on 6 April 2023.²
If you have any questions about these amendments you can contact Ali Field on 0418 568 954 or at firstname.lastname@example.org.
¹ Dare, Bilney & Barngarla Determination Aboriginal Corporation v Premier of South Australia & Kelaray Pty Ltd  SASC 91.