: Retrospective abolition of rights under the Aboriginal Heritage Act 1988 (SA)

Retrospective abolition of rights under the Aboriginal Heritage Act 1988 (SA)

Sue Tilley
South Australia

The Aboriginal Heritage Act 1988 (SA) was established to protect Aboriginal heritage, sites, ancestral remains and objects. 

The all-important section 6(2) gave traditional owners a potentially powerful tool to determine the protection of their heritage, because it provided that the Minister for Aboriginal Affairs and Reconciliation must, at the request of the traditional owners of an Aboriginal site or object, delegate to them the Minister’s powers for granting or withholding of authorisation to damage, disturb or interfere with Aboriginal sites, remains or objects.

However, the Act was amended in March 2016 by the Aboriginal Heritage (Miscellaneous) Amendment Bill 2016, and s 6(2) was deleted and its abolition applied retrospectively.

The Schedule 1 Transitional Provisions make clear that under the new Heritage regime any request for delegation made under s 6(2) is now ‘void and of no effect’; any right to make a request under s 6(2) is ‘extinguished’; and any delegations made under s 6(2) either before or after the passing of the amending Act will be ‘taken to be revoked.’

These retrospective changes have implications for the case of Starkey & Ors v State of South Australia [2011] SASCFC 164. In this case, two members of the Kokatha and Adnyamathanha peoples, Robert John Starkey and Vince Coulthard, sought an order from the Supreme Court to quash the Minister’s authorisation for Straits Exploration (Australia) Pty Ltd to damage, disturb or interfere with Aboriginal heritage in the area of Lake Torrens and a portion of Andamooka Island, and requested delegation under s 6(2). Justice Sulan declined to interfere with the Minister’s decision, but the Full Court determined that the government had acted in breach of the s 6(2) imperative that the Minister delegate her powers to the traditional owners. The Court directed an order of mandamus to the Minister, who was required to confer with the applicants concerning the delegation request. South Australia and the Minister for Aboriginal Affairs unsuccessfully sought special leave to appeal to the High Court ((A3/2012) ([2012] HCA Trans 106) (11 May 2012). 

The repeal of s 6(2) is of interest because the order of mandamus was not fulfilled by the Minister, and a right that was provided by the legislation and was the subject of a determination by the Full Court of the Supreme Court, was not realised. The delay in complying with the s 6(2) request, resulting in the right of delegation not being afforded to Starkey and others, and the subsequent repeal of s 6(2), is compounded by the fact that the government that amended the Heritage legislation was a party to these actions before the courts and failed to comply with the Supreme Court’s determination in a timely manner. This retroactive denial of a legal right cannot be said to accord with the rule of law, procedural fairness or equitable access to justice. 

SUE TILLEY is the Manager of the Anangu Lands Paper Tracker Project of Uniting Communities.

(2016) 41(3) AltLJ 213
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