Indigenous Law Bulletin
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by Anthony Seiver
In New South Wales, it is a crime to destroy, damage or deface an Aboriginal place or object without consent.[1] Other crimes are excavating, disturbing, moving or possessing an Aboriginal object without a permit, and not informing the Department of Environment and Conservation (‘DEC’) of an Aboriginal object’s location within a reasonable time.[2] The offence should prevent serious wrongful conduct, whose avoidance the community considers to be important, and is a necessary, effective and efficient means of prevention.[3] It should also be enforced fairly and proportionately, provide adequate protections to the defendant, and punishment should be proportional to the seriousness of the offence. The current offence provisions will be examined and compared with the yet-to-commence 2001 amendments[4] and recent law reforms in Queensland.[5]
Criminal law, however, may not be the most effective way to prevent the wrong or remedy the harm caused. Sanctions should reflect the seriousness of the offence, deter future wrongdoing, prevent further harm, denounce the wrongful conduct, and satisfy the community that the offender received the appropriate retribution.[6] In reality, criminal law offers few remedies (mostly fines and imprisonment) and its effect as a deterrent is overstated.[7] This is true for this offence: a maximum $5500 fine and/or six months gaol. Fines ignore the offence’s objectives, the effectiveness of deterrence, and assume destruction of Aboriginal heritage is ‘a purchasable commodity which can be discounted as an additional licensing fee.’[8] Despite its limitations, criminal law remains an effective means of regulating Aboriginal heritage destruction because other laws (such as environmental law) are too fragmented.[9]
Conceptualising what is Aboriginal heritage is the first step to defining the wrong and appropriate responses to the wrongdoing. Aboriginal people define their heritage as the tangible and intangible things that tell a story about the land, the environment, people, family, kin, history, community and the universe, and include religious and spiritual places, objects, stories, cultural identity, and connection to place.[10] The sheer range of an Aboriginal perspective of heritage would have definitional and enforcement difficulties if all harmful acts were criminalised. The solution was to limit the offence to destroying Aboriginal objects and places. An Aboriginal object (previously a ‘relic’) is a physical manifestation of Aboriginal existence on the land: a deposit, object or material evidence relating to Aboriginal habitation, before and after invasion, and includes Aboriginal remains.[11] Aboriginal places are declared by the Minister for the Environment to be of cultural significance to Aboriginal people.[12] That means prior recognition by either an archaeologist or government minister is required for the Aboriginal heritage destruction to be a crime. This narrow definition of Aboriginal heritage dissociates Aboriginal people from their heritage. Aboriginal peoples’ dissociation is made complete by vesting ownership of all Aboriginal objects in the Crown.[13] In certain circumstances, statutory Aboriginal ownership[14] and native title limits Crown ownership, but destroying all other recognised Aboriginal heritage remains a crime against the Crown.
In 1967, archaeologists were so concerned about the unregulated exploitation of Aboriginal heritage that Parliament enacted the current offence to protect their scientific and economic interests. Courts, though, have taken a more inclusive approach to Aboriginal interests.[15] Aboriginal heritage is now recognised as Australian heritage,[16] part of Australia’s culture, identity and history, and its loss concerns all Australians.
The current offence is defined as:
A person who, without first obtaining the consent of the Director-General, knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an Aboriginal object or Aboriginal place is guilty of an offence against this Act.
A ‘person’ includes a corporation. A corporation’s criminal liability requires attributing to it the conduct of its human agents, either through its directors or through its employees.[17]
Successful prosecutions require proving that the defendant: (i) knew it was Aboriginal heritage and (ii) knew that their act or omission would destroy that heritage object or place.[18] They must have known the precise nature and location of the objects; reckless indifference or wilful blindness to impute actual knowledge is not enough.[19] It seems the lesser the defendant’s awareness of Aboriginal culture, the greater their immunity from prosecution. A defendant who knew it was Aboriginal heritage must also have known ‘that the likely or probable result of [their activity]... would be to cause damage to the relics on and in the land.’[20] Compared to other Aboriginal heritage laws,
there have been few prosecutions [under the current provisions]... because they are difficult to enforce, because they do not provide Aboriginal people with adequate authority to enforce them and because it is difficult to prove the necessary intention contained in the offences.[21]
No prosecutions have been brought in the last two years.[22]
The criminal acts are distinguished by their varying degrees of physical impact. Destruction implies total irreparable physical alteration to the object or place. Damage includes ‘temporary functional derangement’ and does not have to derive the owner of use of the property.[23] Defacing implies minor or superficial impact, such as affixing posters and wilfully marking with chalk, paint or other material.[24] Aside from direct physical impacts, a defendant’s act or omission can indirectly cause or permit the requisite physical impact, such as by accident,[25] deliberate act of a third party,[26] or through the agency of others.[27] Spigelman CJ has commented that to ‘cause’ or to ‘permit’ damage are two different offences.[28]
The offence’s objective is better conceived by replacing physical impact with the concept of harm contained in environmental and heritage laws. Environmental law recognises that harm to the environment[29] cannot be remedied by a fine or prison sentence alone.[30] The appropriate penalty for an environmental offence must consider: the extent of the harm caused; practical measures available to prevent, control, abate or mitigate that harm, the foreseeability of the harm caused, the extent of control exercised by the defendant, and whether the offence was committed on an employer’s instructions.[31] The Heritage Act 1977 (NSW) makes it an offence to harm a heritage item[32] where ‘harm’ is defined as damaging, despoiling, moving or altering an object, land, or vegetation.[33] While protecting substantially the same things, the Heritage Act respects ownership rights,[34] aims to prevent harm being caused, and has more severe and appropriate penalties.[35] Harm to Aboriginal heritage could cause harm to the Aboriginal community with cultural connection to it. At sentencing, the court must ‘recognise the harm done to the victim of the crime and the community.’[36] Harm caused to an Aboriginal community could be considered if the court’s attention was directed beyond the immediate impact.
An absolute defence is consent from the Director General, DEC (‘consent to destroy’). Consent can be granted, subject to conditions, expressly limited to certain Aboriginal objects, have a fixed geographical extent, and cannot be transferred or amended.[37] Focusing on consent disempowers Aboriginal people and reduces harm prevention to compliance with a bureaucratic process. Departmental resources that could otherwise be allocated to enforcing and prosecuting breaches are instead wasted processing applications for consents.
The current offence does not consider the harm to the community, deter wrongdoing, or have flexible penalties. An offence formulation is required that is flexible, focuses on harm prevention, and responds to the harm caused.
The NSW Government recognised that the ‘necessity to establish intent... has caused major problems in bringing successful prosecutions’[38] and reformulated the offence:
(1) A person must not destroy, deface, damage or desecrate, or cause or permit the destruction, defacement, damage or desecration of, an Aboriginal object or Aboriginal place
...
(1B) Subsection (1) does not apply with respect to an Aboriginal object or Aboriginal place that is dealt with in accordance with a heritage impact permit ...
(1C) It is a defence ... if the defendant shows that:
(a) he or she took reasonable precautions and exercised due diligence to determine whether the action constituting the alleged offence would, or would be likely to, impact on the Aboriginal object or Aboriginal place concerned, and
(b) the person reasonably believed that the action would not destroy, deface, damage or desecrate the Aboriginal object or Aboriginal place.[39]
Adding ‘desecration’ finally recognises non-physical harm, ‘nuisance or any offensive or indecent act in or on [the item]’.[40]
Strict liability will make it easier to educate landholders, enforcement officers and Aboriginal people about their rights and obligations. Prosecutions can also be brought swiftly and effectively because only the criminal act has to be proven and any properly raised defence rebutted. Weighted against strict liability offences is the lack of punishment for varying levels of intent.
The statutory defences reverse the onus of proof. A defendant must show that they took reasonable precautions and exercised due diligence, and possessed a reasonable belief. The due diligence defence is available only once the person shows they contemplated and identified the likely risk, and they took reasonable precautions to prevent the contravention.[41] The defence could be rebutted with evidence of recklessness and criminal negligence, where a defendant’s subjective defence could be distinguished from what a reasonable person should have known in the defendant’s circumstances.[42]
Heritage impact permits seem like consents to destroy by another name. The environmental planning bias of the terminology means ‘impact’ is defined as ‘all matters affecting or likely to affect the environment by reason of the activity’, and a threshold to requiring a permit, ‘likely to significantly affect’, is readily imported.[43]
Deficiencies in the penalty regime were addressed by providing ‘in addition to or in substitution for any [fine] ... [the court can] direct the person to take any action to mitigate the damage to, or to restore, the [heritage item] or to take such other action ... as the court considers appropriate in the circumstances.’[44]
If the 2001 amendments demonstrate progression away from intention-based offences, recent changes in Queensland indicate a more flexible approach.
The Aboriginal Cultural Heritage Act 2003 (Qld) recognises that Aboriginal people own,[45] have cultural responsibility for, and determine the cultural significance of their heritage.[46] A broad definition of Aboriginal cultural heritage (including the surrounding area) is provided.[47] The Act contains four main offences: the Aboriginal cultural heritage duty of care; knowingly destroying Aboriginal heritage; moving or disturbing Aboriginal heritage and possessing Aboriginal heritage.[48] The penalty regime[49] also better punishes culpability and harm caused.
The ‘cultural heritage duty of care’ means: ‘A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.’[50] Harm is defined as damage or injury to, or desecration or destruction of, the cultural heritage[51] which could draw in the harm caused beyond the immediate physical damage to the community connected to that heritage item.
Considerations are prescribed as to whether the duty of care has been discharged based on: the nature of the activity, and the likelihood of its causing harm to Aboriginal cultural heritage and the nature of the Aboriginal cultural heritage likely to be harmed by the activity; and the actions a person should have taken in the circumstances.[52] Measures considered to comply with the duty of care, include cultural heritage management plans and cultural heritage agreements.[53] Mandatory publication of guidelines informs people of their legal rights and obligations.[54] The offence shifts considerable burden onto the defendant but this is balanced by the reasonable and practicable defences contained in the legislation and ‘duty of care’ guidelines.
This is a preferable approach because the person doing the activity must consider the harm caused to Aboriginal heritage by reason of that activity and take reasonable and practicable measures to avoid that harm. Those measures are not overly burdensome and tilt the power balance back in favour of Aboriginal communities.
Criminalising Aboriginal heritage destruction is necessary because of Crown ownership and its harm to the whole community. Current punishments provide little deterrence and more practical sanctions are needed. The offence definition requires balancing of the competing public interests protecting the community from harm and guaranteeing defendant rights. The Queensland regime is the preferred and more principled approach because it recognises Aboriginal ownership rights and cultural responsibilities, punishes according to culpability and its defences are reasonable and practical, and its simple language and concepts (‘harm’ and ‘duty of care’) make education and prosecution easier.
Anthony Seiver is a Senior Policy Officer, NSW Department of Aboriginal Affairs and an LLB student at UNSW. Anthony acknowledges the assistance of Lisa Braid, Anne Harrison, Peter Thompson, Ross Pearson, A/Prof David Brown and Tony McAvoy. This article is dedicated to the Aboriginal staff in NSW land management and conservation agencies for protecting Aboriginal heritage against enormous internal and external pressures. The views expressed in the article are the author’s own and do not necessarily reflect the views of the NSW Department of Aboriginal Affairs.
[1] National Parks and Wildlife Act 1974 (NSW) s 90 (‘NPWA’).
[3] A Ashworth, ‘Is Criminal Law a Lost Cause’ (2000) 119 Law Quarterly Review, 254.
[4] National Parks and Wildlife Amendment Act 2001 (NSW) Schedule 3 (‘NPWAA’).
[5] Aboriginal Cultural Heritage Act 2003 (Qld) (‘ACHA’).
[6] Section 3A Crimes (Sentencing Procedure) Act 1999 (NSW).
[7] Ashworth above n3, 254.
[8] Z Lipman & L Roots, ‘Protecting the Environment through Criminal Sanctions: The Environmental Offences and Penalties Act 1989 (NSW)’ (1995) Environmental Planning Law Journal 16, 31.
[9] J Behrendt & P Thompson, The Recognition and Protection of Aboriginal Interests in NSW Rivers (2003) NSW Healthy Rivers Commission, OCP 1008, 23.
[10] A English, The Sea and the Rock Gives us a Feed: Mapping and Managing Gumbaingirr Wild Resource Use Places (2002) NSW National Parks and Wildlife Service.
[12] S 84 NPWA.
[13] S 83 NPWA.
[14] S 83A NPWA.
[15] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27.
[16] Ss 4 & 4A, Heritage Act 1977 (NSW) (‘HA’); Environment Protection and Biodiversity Conservation (National Heritage) Amendment Act 2002 (Cth).
[17] P Redmond, Companies and Securities Law, Commentary and Materials, (2000, 3rd ed), 198-211.
[18] Histollo Pty Ltd v Director General, National Parks and Wildlife Service (1998) 45 NSWLR 661 (‘Histollo’).
[19] Ibid; Carriage v Stockland Development Pty Limited (No 4) [2004] NSWLEC 553 (30 September 2004) (‘Carriage No 4’).
[20] Histollo.
[21] E Evatt, ‘Overview of State and Territory Aboriginal Heritage Legislation’ [1998] IndigLawB 82; (1998) 4(16) Indigenous Law Bulletin 4.
[22] NPWS, Annual Report 2002-2003, 94 and Annual Report 2001-2002, 113.
[23] Samuels v Stubbs [1972] 4 SASR 200.
[24] Ss 9 & 10A Summary Offences Act 1988 (NSW).
[25] Majury v Sunbeam Corp [1974] 1 NSWLR 659.
[26] Empress Car Company (Abertillery) Ltd [1998] UKHL 5.
[27] Tiger Nominees v SPCC (1992) 25 NSWLR 715.
[28] Histollo, above n18.
[29] S 4 Protection of the Environment (Operations) Act 1997 (NSW) (‘POEO Act’).
[30] S 245-250 POEO Act.
[31] S 241 POEO Act.
[32] S 25 HA.
[33] S 4 HA.
[34] Ss 28(1)(b) & 33(1)(a) HA.
[35] Ss 157 & 161 HA.
[36] S 3A Crimes (Sentencing Procedure) Act 1999 (NSW).
[37] Carriage No 4, above n19.
[38] NSW, Hansard, NSW Legislative Council, 6 December 2001, 19770 (Hon Ian McDonald).
[39] Sch 3, cl 2-3 NPAA.
[40] S 155, Summary Offences Act 1988 (NSW).
[41] SPCC v RV Kelly (1991) 5 ACSR 607.
[42] D Brown et al, Criminal Laws, Materials and Commentary on Criminal Law and Process in New South Wales, (3rd ed, 2001) 381-382.
[43] Ss 111 & 112 Environmental Planning and Assessment Act 1979 (NSW).
[44] Sch 3, cl 9, NPWAA.
[45] S 20 ACHA.
[46] S 5 ACHA.
[51] Sch 2, ACHA.
[54] Qld Department of Natural Resources and Mines, Aboriginal Cultural Heritage Act 2003, Section 28 – Duty of Care Guidelines, 2004 <http://www.nrm.qld.gov.au/cultural_heritage/pdf/duty_of_care_guidelines.pdf> at 17 March 2005.
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