Yesterday, the South Australian Government released the proposed Aboriginal Heritage (Miscellaneous) Amendment Bill 2023 (the Bill), to be introduced into Parliament this week to amend the Aboriginal Heritage Act 1988 (SA) (AHA).
The Bill has been drafted in response to the view that “South Australia’s current Aboriginal protection laws fail to deliver the protections that our ancient cultural heritage deserves” (The Hon Kyam Maher, MLC, 17 May 2023).
The Bill, once passed, will strengthen Aboriginal heritage protection in South Australia through increased and enhanced reporting and penalty provisions under the AHA. It will also clarify the scope to which authorisations may be granted in respect of classes of persons, and in respect of Aboriginal heritage in an area, whether the heritage is known or unknown.
What the Bill proposes
In essence, the Bill proposes to:
- remove the prohibition on the Minister delegating the Minister’s power to authorise the commencement of proceedings for an offence under the AHA;
- increase the penalties for all offences set out in the AHA, including a new penalty for reckless or intentional damage by a body corporate of an Aboriginal site, object or remains of $2,000,000;
- clarify the circumstances in which a person must report the discovery of sites, objects and remains to the Minister;
- deal with what a person acting under an authorisation given by the Minister under sections 21 or 23 must do upon discovering an Aboriginal site, object or remain which:
- is not the subject of the authorisation
- has not been previously reported under the AHA
- is not the subject of a local heritage agreement
- otherwise of a kind of Aboriginal site, object or remains prescribed by the regulations,
and introduces an approval mechanism for a management methodology;
- deal with reporting the discovery of an Aboriginal site, object or remains whilst acting under an authorisation given by the Minister under sections 21 or 23;
- create an additional offence of intentional or reckless damage, disturbance or interference with an Aboriginal site, object or remains;
- permits parts of an authorisation, a local heritage agreement or approved agreement, or an approved management methodology to be overridden by directions given by the Minister or Inspector (in certain circumstances);
- permits a court to make additional orders where there is a contravention of the AHA, for example, a make-good order for any damage caused by the contravention;
- set the outer bounds of the time within which a prosecution for a summary offence under the AHA may be commenced, being within 10 years after the date of the alleged commission of the offence (with authorisation of the Minister).
If you would like to discuss how the proposed changes to the Aboriginal Heritage Act may impact on your business or project, please do not hesitate to reach out to us.
This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.
