Indigenous Law Bulletin
by Marianne Jago & Nathan Hancock
The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 ('the Bill') proposes to reduce significantly the Commonwealth government's involvement in the protection of indigenous heritage. State and Territory heritage protection regimes will be accredited where they meet certain minimum standards. Upon accreditation, the Commonwealth will effectively withdraw from active involvement in the protection of the States' and Territories' indigenous cultural heritage. Commonwealth government intervention will be limited to heritage applications involving the `national interest'.
In this article we focus on the need for, and scope of, automatic or blanket protection of sites and areas. Blanket protection ostensibly imposes `a "duty of care" on all those whose actions may threaten damage or desecration to a site or area to make reasonable inquiries'. Despite recommendations to the contrary by Elizabeth Evatt and by a State and Territory Ministerial Council convened by the Federal Government, there is no provision for blanket protection in the minimum standards required under the accreditation scheme proposed by the Bill. Since the Bill's introduction, blanket protection has also been recommended by a parliamentary committee and has been the subject of an undertaking by the Minister for Aboriginal Affairs. Clearly, the States and Territories consider blanket protection something of a panacea for heritage protection.
However, blanket protection is already a feature of Australia's weakest heritage protection regimes. To assess the efficacy of blanket protection as a mechanism for preserving indigenous heritage, we examine its use and effectiveness in Queensland's heritage protection legislation. Several distressing incidents have occurred within the North Queensland Land Council's representative region which have highlighted the deficiencies in the blanket protection provisions of Queensland’s heritage protection legislation.. One of these incidents, the bulldozing of Koombal Park in February 1998, provides a case study through which we examine the operation of Queensland’s heritage protection legislation.
It is generally agreed that the best way for States and Territories to protect sacred sites is to impose blanket protection on all sites and objects which conform with statutory definitions of heritage value and significance. Indeed, most States and Territories provide for both blanket protection and for the registration and/or declaration of relics and specific areas identified as possessing heritage significance. In this way, it is thought, States and Territories cover all bases and provide a comprehensive regime for the protection of relics and areas of particular significance.
Evatt’s interpretation of the meaning of blanket protection, cited above, is based on the assumption that offences under the blanket protection provisions of heritage legislation are strict liability offences. Where statutory offences incur absolute liability, it is unnecessary to demonstrate the element of intent usually necessary to establish criminal liability. This means that no defences are available for absolute liability. By contrast, liability for offences incurring strict liability may be avoided on the basis of the common law defence of mistake.
Evatt’s evocation of a ‘duty of care’ in her analysis of blanket protection arises in recognition of the fact that the Courts tend to mitigate the rigours of strict liability by making available the defence of mistake, so the accused may claim that he or she honestly, if mistakenly, believed in a set of circumstances that would excuse his or her conduct. If the prosecution can show that the defendant’s belief was unreasonable in all the circumstances, including the defendant’s actual and constructive knowledge, then the burden of proof is reversed and the defendant must demonstrate that there were reasonable grounds for his or her belief.
Two decisions of the New South Wales Court of Appeal shed light on the standard of care required to discharge the reversed onus of proof in the second part of the common law test for mistake. In State Rail Authority v Hunter District Water Board, it was found that in the absence of any inquiries to verify its accuracy, a positive belief in a mistaken set of facts was, of itself, inadequate grounds on which to raise the defence of mistake. In Australian Iron & Steel Pty Ltd v Environment Protection Authority, the Court decided that, in order to discharge the onus of proof, the accused must exercise due diligence and take reasonable steps to determine the veracity of his or her belief. In the common law defence of mistake, the civil standard operates to reduce the burden on the prosecution in establishing liability for strict liability offences.
Koombal Park is an Aboriginal story place situated just to the North of Yarrabah in Far North Queensland. It was a major tourist attraction in the sixties and seventies when it became known that there were Aboriginal skeletal remains at the site. Paintings are visible on a large rock at the site.
Koombal Park was bulldozed in early February 1998 by a neighbouring land owner who claims to have been unaware of the significance of the place. The neighbour admitted to removing a peg marking the boundary between his property and Koombal Park, and that he knew he was clearing ground beyond his own boundary. As a result of the bulldozing, the site was razed up to the rock housing the paintings. A midden was exposed and an axe-grinding stone was destroyed.
The Department of Cultural Heritage and Environment Protection advised that the site was not a Designated Landscape Area, but was listed on what it described as an ‘inventory’ kept by the Department. Traditional owners of the area had understood that the site's being listed with the Department would be sufficient to ensure that the area would be protected.
Cairns City Council was given warning that the site was under threat before the damage occurred but failed to prevent the damage or to inform the land-owner of the site’s significance. The Council did not inform the Park’s traditional owners of the proposed development.
Queensland’s heritage protection regime is established by at least two pieces of legislation. The Cultural Records (Landscapes Queensland and Queensland Estate) Act 1987 (‘the Cultural Records Act’) is the State’s primary legislation for the protection of heritage. The Cultural Records Act is supplemented by the Queensland Heritage Act 1992 (‘the Heritage Act’). The Cultural Records Act specifically excludes from its ambit areas that are of significance only to Indigenous people. Together, these Acts create a regime for the protection of indigenous heritage encompassing:
The Queensland legislation ostensibly provides a comprehensive regime for the protection of indigenous heritage. Blanket protection under the provisions of the Cultural Records Act applies whether or not a site is registered. However, the defences available for offences against this provision differ according to whether or not the site is formally registered. An examination of the defences available to the defendant in the Koombal Park incident reveals that these defences weaken the effectiveness of the protection afforded by the regime, particularly the so-called blanket protection provisions.
The Cultural Records Act contains a statutory version of the common law defence of mistake in its blanket protection provisions. The statutory defence states that the element of reasonableness required to establish the defence of mistake is discharged if the defendant(s) can show that they `did not suspect and could not be reasonably expected to suspect' the heritage value and status of a damaged site or object. For the purpose of determining which standard of proof applies to the statutory defence, it must be asked whether `suspicion is a kind of knowledge or a type of intent. Whichever standard does apply - and it would appear to lie somewhere below the civil standard - the statutory construction of the defence of mistake may be contrasted with Evatt's `duty of care', and the New South Wales Appeal Court's, `due diligence' approaches to the common law test for mistake.
Liability for contravention of declarations made under the Heritage Act may be avoided on the basis of `reasonable excuse', which is more open to a due diligence or duty of care interpretation. No statutory defences are available for contravention of declarations made under the Cultural Records Act.
A hypothetical application of the defence provisions of the heritage protection legislation to the neighbouring land-owner in the Koombal Park incident demonstrates that the deficiencies in the legislation stem largely, but not only, from its enforcement provisions.
Because the blanket protection contained in the Cultural Records Act applies whether or not a site is registered, the defendant is liable under the penalty provisions of the Act. In order to demonstrate the unreasonableness of the defendant's belief, the prosecution would have to show that a reasonable person would have `suspected' the site's indigenous heritage significance on the basis of the landscape features and evidence of human occupation at the site (the paintings, the midden and grinding stone), and evidence of indigenous interest in the region (a native title claim).
Alternatively, if the site had been registered, the prosecution would have to prove that the land owner possessed actual knowledge of the existence of the sites and proceeded to raze the area in spite of this knowledge and without reasonable excuse. The prosecution might be able to rely on the consultation process provided for in the legislation to show that the defendant did possess knowledge of the site's significance. However, if the defendant was not involved in the consultation processes in some way, the force of this evidence for the imputation of actual or constructive knowledge might be considered tenuous.
If the site had been declared a 'Designated Landscape Area' under the Cultural Records Act, there would be a case for trespass against the defendant, but not for compensation or damages for the act of destruction.
If, under the Heritage Act the Park had been registered as an 'Archaeological Area' then the defendant would have to provide a reasonable excuse for trespassing on or destroying the site.
The Koombal Park incident highlights the flaws in blanket protection regimes, particularly where defences include a test for the reasonableness of a mistaken belief. In the absence of some demonstrable evidence or sign, the Courts may or may not have imputed knowledge of the significance of Koombal Park to the neighbouring landowner. It is likely that even if a reasonable person were expected to know that the paintings existed, under the current regime they might succeed in arguing that they did not know the area contained artefacts or other physical evidence of prior occupation. Accordingly, it would be difficult to argue that the exercise of due diligence was required to discharge the onus, as is required in the common law test.
The statutory defence of mistake blurs the critical distinctions arising between civil and criminal standards of proof, between different forms of knowledge (actual and constructive) and between the different forms of criminal intent (intent, recklessness and negligence). The statutory defences available under the Queensland heritage protection regime render the blanket protection provisions they are designed to enforce much weaker than they first appear.
Federal, State and Territory legislators bandy around the promise of blanket protection for indigenous cultural heritage, but it needs to be emphasised that this is no panacea. The efficacy of blanket protection for preserving Indigenous heritage varies according to the way in which it is formulated under particular legislative regimes.
It was suggested earlier that to be effective, `blanket protection' must extend to areas threatened or damaged by acts which, though not intentional or reckless, are negligent. Some Acts create offences requiring knowledge, while others refer to reasonable excuse, and to negligence. Rather than relying on speculation about what the mythically `reasonable person' may or may not be expected to know about the existence of sites, the `due diligence' model would impose an obligation on the general public to consider heritage issues before they act. In other words, there must be some clear statutory indication that liability may be imputed on the basis of negligence rather than from actual or constructive knowledge. The question is whether, considering the scope, purpose and object of the legislation, public policy requires that guilt be measured by the reasonableness of the excuse and the action taken to verify the relevant `belief' rather than actual or constructive knowledge. This would increase the prospect of preventing the kind of situation illustrated by the case study: the land owner, having removed the surveying peg, having (presumably) known about the rock art and considering the fact that there are significant indigenous interests in land in the region (especially in relation to native title), could be considered to have been negligent in proceeding with the land clearance.
Clearly there is a need to educate the public on the nature of indigenous heritage, including the archaeological features of prior ownership. A bigger picture approach to heritage issues needs to be taken, so that they are effectively integrated into land planning and development processes. But, most importantly, there must be a careful examination of the meaning of blanket protection, so that legislators do not escape their responsibilities to their indigenous constituents by implementing a regime which is useless on the ground. If blanket protection were to contain a 'reasonable excuse' requirement, a Court could consider all the circumstances surrounding the destruction of significant sites and objects, as well as the defendant's subjective intent. Without it, the man on the Clapham omnibus (or bulldozer, as it were) will be left to determine the fate of indigenous cultural heritage.
Marianne Jago is a lawyer at the Northern Queensland Land Council Nathan Hancock is a lawyer at ATSIC’s Canberra office.
 Marianne Jago thanks her Mum, Darryl Murgha and Sean Brennan. Nathan Hancock thanks his Mum.
 We emphasise also the need for early consideration of heritage issues in land planning processes. This was a major element of guidelines agreed by State and Territory agencies (Ministerial Council on Aboriginal and Torres Strait Islander Affairs Working Party Report on Item 4.1: Aboriginal Heritage Interaction between States, Territories and Commonwealth, 1995, p 35, guideline 6.6.) and the model put forward by Elizabeth Evatt (Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth.), recommendation 6.5, p 89). It is, however, beyond the scope of this paper to consider this issue in any greater detail.
 Elizabeth Evatt AC, id, p 81.
 Ministerial Council on Aboriginal and Torres Strait Islander Affairs Working Party Report on Item 4.1: Aboriginal Heritage Interaction between States, Territories and Commonwealth, 1995, p 35, guideline 6.2.
 Eleventh Report of the Parliamentary Joint Committee on Native Title and the Indigenous Land Fund: The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, recommendation 9, p 108.
 Twelfth Report of the Parliamentary Joint Committee on Native Title and the Indigenous Land Fund: The Aboriginal and Torres Strait Islander Heritage Protection Act 1984, p 16.
 Blanket protection regimes apply to relics in Victoria, Western Australia and Tasmania: Archaeological and Aboriginal and Torres Strait Islander Heritage Protection Act 1984, p 16.
 See, for example, above n. 4, 5 & 6.
 Blanket protection regimes apply to relics in Victoria, Western Australia and Tasmania: Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.); Aboriginal Heritage Act 1972-1980 (WA); Aboriginal Relics Act 1972 (Tas.). They apply to sacred sites in Northern Territory and South Australia: Northern Territory Aboriginal Sacred Sites Act 1989 (NT) and Aboriginal Heritage Act 1988 (SA).
 Thomas v R  HCA 83; (1937) 59 CLR 279; Proudman v Dayman  HCA 28; (1941) 67 CLR 536; He Kaw Teh v R  HCA 43; (1985) 60 ALR 449 per Gibbs CJ and Mason, Brennan & Dawson JJ.
 For a detailed analysis of strict liability and mens rea, see Waller, L. & Williams, C.R. (eds), Criminal Law: Text and Cases, (Butterworths, Sydney, 1989).
 A Court will consider the language and subject matter of the legislation when imputing the element of mens rea into statutory offences based on strict liability: in Sherras v De Rutzen (1895) 1 QB 918; Proudman v Dayman  HCA 28; (1941) 67 CLR 536; He Kaw Teh v R  HCA 43; (1985) 60 ALR 449.
 (1992) 65 ACR 101.
 (1992) 29 NSWLR 497.
 . In other words the prosecution need not prove mens rea but that the defendant acted negligently: Waller, L. & Williams, C.R., id, p 701. The prosecution bears the legal burden: He Kaw Teh v. R  HCA 43; (1985) 60 ALR 449.
 Heritage Act 1992, s.62.
 Cultural Records Act, s56(4).
 See above, n 2.
 It is an offence 'without reasonable excuse [to] knowingly destroy, [etc]' a registered site: Heritage Act 1992, s47.
 Heritage Act 1992, s24 & ss26-3 1.
 This would be highly unlikely given the explicit omission of areas significant only to Indigenous people from the Act. It also raises some issues regarding the ability of State and Territory laws to protect significant sites where there is no conclusive registration or declaration regime and inadequate supporting administrative processes. It is beyond the scope of this paper to consider these further, however they are issues which do need attention.
 It also raises some issues regarding the ability of State and Territory laws to protect significant sites where there is no conclusive registration or declaration regime and inadequate supporting administrative processes. It is beyond the scope of this paper to consider these further, however they are issues which do need attention.
 In Victoria it is an offence to wilfully or negligently deface, damage or interfere with, or endanger a relic (Archaeological and Aboriginal Relics Preservation Act 1972, (Vic) s21). In Western Australia and Tasmania it is a defence if the person 'did not know and could not reasonably be expected to have known' that the area was protected (Aboriginal Heritage Act 1972-1980 (WA), s.62; Aboriginal Relics Act 1972 (WA), s21(3)). In the Northern Territory it is a defence if the person 'had no reasonable grounds for suspecting that the sacred site was a sacred site' (Northern Territory Aboriginal Sacred Sites Act 1989 (NT), s36(1)) and there is a duty to inquire about the location and extent of sacred sites on Aboriginal land (s36(2)). There is nothing in the South Australian legislation to suggest that knowledge is required and there are no statutory defences (Aboriginal Heritage Act 1988 (SA)).