Background

On 20 February 2023, Toodyay farmer Tony Maddox was charged with one count of an offence contrary to s. 17(a) of the Aboriginal Heritage Act 1972 by altering Avon River Aboriginal Heritage Site ID 15979, without either the authorisation of the Registrar of Aboriginal Heritage Sites under s 16 or the consent of the Minister under s 18 of the Aboriginal Heritage Act 1972.

There was no dispute that Tony did not have consent or approval for repairing his culvert (creek crossing).

Tony entered a plea of not guilty at his second appearance on 17 April 2023 in the Magistrates Court at Northam. There were three further appearances in the Magistrate at Perth for trial allocation.

A two day trial was held on 22 and 23 February 2024 before Magistrate Matthews in the Magistrates Court in Perth.

Following six adjournments for the delivery of the Magistrate’s Reserved Decision (6 March 2024, 16 April 2024, 15 May 2024, 24 June 2024, 19 August 2024, 31 October 2024), on 17 February 2025, Tony was found guilty.

At the trial

The Prosecution ran their case on the existence of a site as defined by section 5(b) of the Act being the semi-permanent brook on Tony’s property because it was a tributary of the Avon River.

The Prosecution contended that all tributaries of the Avon River were sites because of a decision of the Aboriginal Cultural Material Committee (ACMC) on 11 August 2020, seven years after Tony had bought the farm.

The Department’s witness admitted it did not notify the hundreds of landowners affected by the new addition to the maps in its Aboriginal Cultural Heritage Inquiry System (ACHIS), and relied on property owners firstly, knowing there is an online map and secondly, checking it regularly to ensure it hasn’t changed to include parts of their land.

The Judge said the Department

don’t have access to all the resources to ensure that they can advertise.

The Department’s own witness conceded that its maps in the Aboriginal Cultural Heritage Inquiry System were inaccurate.

Even more fundamentally, the Department’s witness conceded that there had been long debate about whether s5(b) status applied to each and every tributary of the Avon River and the Prosecution failed to prove it did.

The Prosecution’s only Aboriginal Elder expert witness, gave evidence as to the impact that changes to the River and its tributaries might have upon his family, conceding his view was purely hypothetical because he had never been to Tony’s property or even seen a picture of the crossing works in question.

The Judge found that Tony

did undertake activities on that site, which, on my finding, did not damage the site.

The Judge found Tony guilty of breaching the Act and sentenced Tony to a fine of $2,000, costs of $5,000 and a spent conviction.

Supreme Court Appeal

Although the sentence was relatively light, Tony knows that his guilty verdict will stand as a precedent and put thousands of other Western Australian land owners at risk so he has decided to fight the outcome in the Supreme Court.

The appeal has been listed for one day at 10am on Friday 20 February 2026 in Perth.

He needs your help and support to ensure he can get the expert legal representation required to overturn this dangerous precedent.