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Speech: Aboriginal Heritage (Miscellaneous) Amendment Bill

The Hon. T.A. FRANKS: I rise today to speak on behalf of the Greens in support of this legislation, a step in the right direction and I hope the first of many changes to come for Aboriginal heritage in this state. Every time we speak in this place we are, of course, speaking on the unceded lands of the Kaurna people—in this building. I want to acknowledge elders past and present and recognise all First Nations people right across our state who have fought and who continue to fight for the rights of their people to protect their culture, practise their law and fight for their voices to be heard.

We are privileged to have in this nation the oldest continuous living culture in the world. They have cared for this land, preserved the waters and ecosystems, and navigated by the stars in the sky for tens of thousands of years. Since colonisation, our First Nations people have been fighting to survive. The frontier wars saw them chained and massacred, raped and tortured, their lands stolen and their children stolen.

Today, they continue to fight governments and fossil fuel billionaires who are destroying their sacred places, meeting places for ceremony and cultural business, and ancestral songlines. Unfortunately, too much of this has already been destroyed. We have seen this at Koonalda Cave, Lake Hart West, Lake Torrens and Kimba, and now, more recently, we have developments at Nilpena Ediacara National Park and Buckland Park, aka Riverlea. The list goes on and on and time and time again we have seen the cultural heritage of traditional owners tossed aside in the name of corporate interest—or I will call it what it is: corporate greed.

These sites are important not only to traditional owners but to all of us in this country. First Nations people or not, this is our collective history, it is our culture and we should all be proud of this. We should be eager to protect Aboriginal heritage. It is unacceptable that time and time again First Nations people are being forced to give up and, in fact, made to stand by and watch as people rip the soul out of their country—our country.

Plain and simple, our laws do not do enough to provide protection, not even enough to get any kind of conviction under the very legislation that was supposed to protect Aboriginal heritage. Fines are weak and fail to act as a deterrent to damaging Aboriginal heritage. We have seen interstate that weak Aboriginal heritage laws can cause significant harm. The Greens do not want to see yet another instance of billion-dollar companies damaging sacred sites over 10,000 years old, so this bill is most welcome.

The bill promises change in three key areas. Firstly, this legislation seeks to implement significant increases to penalties for offences under the Aboriginal Heritage Act. It proposes to increase fines by as much as 25 times and also either double or quadruple maximum prison sentences. This is welcome. Under the current act, a person may face either a fine or imprisonment for committing an offence. This bill will now propose that both fines and prison sentences could be imposed. These amendments would mean that South Australia would have some of the most significant penalties for causing harm to cultural heritage in Australia. Finally, an appropriate step in the right direction, and it is not lost on me that in this state we do actually have some of the weakest Aboriginal heritage protections in the country.

In addition to any penalties for offences under the current act, this bill proposes that a court may also order an individual or company to pay money towards the repair, restoration or reinterment of Aboriginal heritage or any other costs incurred to make good any other harm; pay an Aboriginal party a sum determined by the court for reasonable costs, or compensation for harm suffered; pay an amount estimated by the court as 'economic benefit' that was received as a result of that contravention; or take specified action to publicise the contravention and its consequences—a name and shame provision.

The bill also clarifies reporting obligations for Aboriginal cultural heritage discoveries where, if there are any discoveries of Aboriginal heritage, work must immediately be stopped and the discovery must be reported to the minister, even where the person making the discovery holds an authorisation under the act. Authorisations may be granted to classes of persons and cover all Aboriginal heritage in an area, whether known or unknown.

As explained by the Minister for Aboriginal Affairs, these amendments are in response to the decision from the 2022 South Australian Supreme Court in Dare, Bilney and Ors v Kelaray. In that case, Chief Justice Kourakis set aside a decision of the previous Premier, who was also the then minister for Aboriginal affairs, to grant an authorisation to Kelaray under the Aboriginal Heritage Act in connection with exploration activity at Lake Torrens, ruling the authorisation was invalid on the basis its terms were inconsistent with another Aboriginal heritage protection in the act. In making his determination, the minister had relied on Kelaray's chance find procedures, which was part of its cultural heritage management plan to protect Aboriginal sites, objects and remains.

The chance find procedures allowed interference with an object or site in accordance with the advice of expert anthropologists or Aboriginal representatives of its choice before the minister was notified. Unfortunately, this decision has since been overturned by the Court of Appeal. Time and time again, we have heard that cultural heritage laws in this country are too weak and they must be strengthened. This is our opportunity to walk the talk and finally hold a higher standard, a standard that we so desperately need in this state. We know that we must do it right and with the support of First Nations people.

Successive government legacies have taken advantage of our too-weak clause at the expense of traditional owners in this country and at the expense of First Nations cultural heritage in this country. You may ask what the solution to that is. The solution is actually quite simple: it is to adopt all three elements of the Uluru Statement from the Heart, plus stronger cultural heritage laws and other legislative changes that promote the UN Declaration on the Rights of Indigenous Peoples.

These all play a pivotal and important role in protecting our cultural heritage, and the Greens will keep fighting for all of them to be included in our legislation, one way or another. I again reiterate the Greens' support for the bill and we look forward to more changes to our Aboriginal Heritage Act, along with the informed decision-making that we will benefit from once we have a State Voice to Parliament.

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