Amendments to the Aboriginal Heritage Act 1988 (SA) (AHA) pursuant to the Aboriginal Heritage (Miscellaneous) Amendment Act 2024, are, as of 1 January 2025, in force.
The amendments aim to recognise the importance of protecting Aboriginal heritage, particularly by increasing financial penalties for serious breaches of Aboriginal heritage laws.
Those undertaking projects which may have the potential to affect Aboriginal heritage will need to be cognizant of these changes prior to proceeding with any ground-disturbing work.
How the proposed changes to the Aboriginal Heritage Act may impact your business or project
Section 20 has been amended to apply to the reporting of discovery of sites, objects or remains where a person is not acting under a Ministerial authorisation given under the AHA. The amendments also provide that a licence or permit holder under the Hydrogen and Renewable Energy Act 2023 is an “owner” of private land for the purposes of reporting requirements.
A new section (section 20A) has been inserted in the AHA which deals with requirements for the cessation of activity and reporting to the Minister on discovery of certain sites, objects or remains by a person while acting under an authorisation given by the Minister under sections 21 and/or 23. The requirements under section 20A differ depending on whether the Ministerial authorisation was given before 1 January 2025 or, given on or after 1 January 2025. A person becoming aware of new information relating to a known Aboriginal site or remains is also reportable under section 20A.
There are exceptions to the requirements to cease activity and report to the Minister which are set out in section 20A(5), and include where the Aboriginal sites, objects or remains are the subject of a management methodology approved by the Minister for the purposes of section 20A, and also, where such Aboriginal sites, objects or remains are the subject of a local heritage agreement.
Amendments to the AHA have clarified that, without limiting any other provision of the AHA, authorisations given under section 21 or section 23 may be given to a specified class of persons, and may be given in relation to specified Aboriginal sites, objects or remains, or to all Aboriginal sites, object or remains within a specified area (whether or not those sites, object or remains are registered or reported). This has codified some of the recent judicial determination on the permitted scope of an authorisation.
Penalties for existing offences under the AHA have been increased significantly. Further, the amended AHA introduces a new penalty of $2,000,000 for ‘reckless or intentional damage’ of an Aboriginal site, object or remains by a body corporate, or $250,000 or imprisonment for 2 years in any other case.
If you would like to discuss how the new requirements in the AHA may impact 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.