The primary law in this case is the The Aboriginal Heritage Act 1972 (Act) and the subsidiary legislation, the Aboriginal Heritage Regulations 1974 (Regs).
The sections below are particularly pertinent to Tony’s case. Click the plus symbol [+] for more information. Words in italics are verbatim from the law.
The prosecution relied only on section 5(b) of the Act to define the type of site that has been drawn on Tony Maddox’s farm:
- This Act applies to —…
(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;…
There is no suggestion of any current or historical artifacts or objects on Tony’s property.
Section 10 of the Regulations says:
a person shall not, without the written consent of the Minister or the Registrar… —
(a) alter, damage, or destroy any notice, boundary, fence, shelter, grille, cutting, drain, protective work or other thing which the Registrar or any officer of the Department has, or has caused to be, erected, constructed, made or placed thereon or therein;
(b) dig any hole or otherwise disturb the surface of the ground, or remove or disturb any stone, soil, sand, rock or gravel, or any other natural object;
(c) cut, pick, pull, break, remove, take, injure, poison, strip or destroy any tree, shrub, herb, grass or other plant or part thereof whether living or dead;
(d) post, stick, stamp, stencil, paint, draw or otherwise affix or make any mark, symbol, lettering, notice, advertisement poster, sign or document of any description;
(e) except in a place approved or provided for the purpose —
(i) drive, tow, operate or park any vehicle;
(ii) camp, erect tents or shelters, light fires or make fireplaces;
(iii) deposit or leave any refuse, rubbish or litter; or
(iv) take, ride or drive, graze or agist any horse, cattle, sheep, goat, camel, donkey or pig, or allow any such animal to remain;
(f) sell any food, beverage or other article;
(g) unlock, unfasten or leave open any gate unless duly authorised to do so; or
(h) except with the prior written approval of the Minister, or the Registrar, and in accordance with such requirements as they may impose, take any photograph or make any recording for the purpose of commercial reproduction or publication.
Section 17(a) of the Act says:
A person who —
(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site;…
commits an offence unless he is acting with the authorisation of the Registrar under section 16 or under a consent given under section 18(3)(a).
28. Aboriginal Cultural Heritage Committee established
(1) A body called the Aboriginal Cultural Heritage Committee is established.
(2) The Committee is an agent of the State and has the status, immunities and privileges of the State.
Section 38 explains that the department must establish a database of sites and objects:
The Registrar shall, so far as practicable, maintain, in such manner and form as the Minister may determine, a register of —
(a) all protected areas;
(b) all Aboriginal cultural material; and
(c) all other places and objects to which this Act applies,
whether within the State or elsewhere.
39. Functions of the Committee
(1) The functions of the Committee are —
(a) to evaluate on behalf of the community the importance of places and objects alleged to be associated with Aboriginal persons;
(b) where appropriate, to record and preserve the traditional Aboriginal lore related to such places and objects;
(c) to recommend to the Minister places and objects which, in the opinion of the Committee, are, or have been, of special significance to persons of Aboriginal descent and should be preserved, acquired and managed by the Minister;
[(d) deleted]
(e) to advise the Minister on any question referred to the Committee, and generally on any matter related to the objects and purposes of this Act;
(ea) to perform the functions allocated to the Committee by this Act; and
(f) to advise the Minister when requested to do so as to the apportionment and application of moneys available for the administration of this Act.
(2) In evaluating the importance of places and objects the Committee shall have regard to —
(a) any existing use or significance attributed under relevant Aboriginal custom;
(b) any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;
(c) any potential anthropological, archaeological or ethnographical interest; and
(d) aesthetic values.
(3) Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place or object for the purposes of this Act.
Section 62 of the Act states:
In proceedings for an offence against this Act it is a defence for the person charged to prove that he did not know and could not reasonably be expected to have known, that the place or object to which the charge relates was a place or object to which this Act applies.
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