Proposal Fourteen

“If someone has our Old People in the shed and they know they’re not supposed to, of course they’re not going to let one of our mob in to check the shed. The thing that keeps me awake at night is the vision that they can just say ‘no, you can’t come in here’ and our Old People can just stay there, on a concrete shed floor under a blanket forever. And there’s nothing we can do about it.”

Issue

AOs and AHOs are inhibited from carrying out their functions, to protect Aboriginal Cultural Heritage, as they are unable to enter land or premises without the consent of the occupier.

Background

Under the Act, AOs and AHOs are appointed by the Minister to carry out the Act’s enforcement functions. Those functions include monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders under Part 6 of the Act. Under section 166 of the Act, both AOs and AHOs have a general power to enter land or premises to carry out these functions.

Section 166(2) specifi cally stipulates that “an authorised officer or Aboriginal heritage officer must not enter any land or premises under this section without the consent of the occupier of the land or premises; and unless the occupier is present; or has consented in writing to the authorised officer or Aboriginal heritage officer entering the land or premises without the occupier being present.”

Proposal

That the Act be amended to allow AOs and AHOs to enter land or premises without the consent of the occupier.

The current legislation restricts AOs’ and AHOs’ powers to the point where they are inhibited from carrying out their functions. In the likely event that an individual who is suspected of an offence against the Act does not give an Offi cer consent to enter their premises, the Officer is stopped from carrying out their duty to protect Aboriginal Cultural Heritage.

Although this amendment may seem like a curtailment of the occupier’s rights, it is necessary for striking the balance between those rights and the rights of Traditional Owners under the Act. Namely, the rights to the protection and management of their own Cultural Heritage.

Consideration

Currently, AOs and AHOs have powers limited to monitoring compliance with the Act, investigating suspected offences against the Act, and issuing and delivering stop orders - under Part 6 of the Act. These functions cannot be effectively undertaken if the suspected wrongdoer is allowed time to consent and provide access to various places. As such, there are instances that warrant entry to land or premises without the consent of the occupier.

With the primary aim of this proposal being to ensure the recognition, protection and conservation of Aboriginal Cultural Heritage – amending the power of entry for AOs and AHOs would lead to better compliance with archaeological investigations, subsequent management plans, and many other functions.

Submissions from the Building and Development sector erroneously noted there are limited laws that support entry without authority. However, making these amendments would be in accordance with similar provisions for Authorised Offi cers under 55 of the Victorian Environment Protection Act (1970) and part 7.4 of the NSW Protection of the Environment Operations Act (1997).

The submissions from this sector also considered that there are current laws that support the use of a warrant to access various places, thus invalidating the need to have the authority to enter places without consent. While this argument has merit – giving AOs and AHOs this power would enable them to adequately and efficiently carry out their functions. Council underscores that Traditional Owners have a general tenant to uphold the legislation, not try and overextend their rights.

Submission to the response to the proposal

“The Board believes that changes proposed are an important step in meeting the purposes stated in Section 1 of the Act, and by promoting these changes into law they will strengthen the protection of Aboriginal cultural heritage and further empower traditional owners in supporting their culture.”

The Dja Dja Wurrung Clans Aboriginal Corporation represents the Dja Dja Wurrung Peoples of central Victoria. As our Country’s fi rst people, Dja Dja Wurrung have an established place in society and are empowered to manage our own affairs. Our Recognition and Settlement Agreement (Native Title) is an important milestone for Dja Dja Wurrung people and the Victorian Government now recognises us as the Traditional Owners of this Country and acknowledges the history of dispersement and dispossession that has affected our people. Our Agreement allows for continued recognition, through protocols and acknowledgements and Welcomes to Country, and signage on Dja Dja Wurrung Country.

Community support for the proposal

This proposal received some support, with many holding the view that it would bring a necessary balance between occupier’s rights and the rights of Traditional Owners. However, the general view was that powers of entry should be measured, and that consideration could be made to allow for written notice (or reasonable attempt to contact the owners) to be provided prior to entry – which would maintain the occupiers rights, while still allowing AOs to attend site.

An LGA sector submission noted that:

“the standard of proof in this instance should be beyond reasonable doubt.”

They further noted that:

“…it is far preferable that the Power of Entry be used with occupiers present and with their consent. [We] would therefore support wording that balanced that preference with the need to provide AOs with the practical ability to monitor and enforce compliance with the Act.”

There were a number of negative submissions received around Traditional Owner capacity to undertake this responsibility and appropriate entry to sites with specific HO&S requirements.

There was very strong opposition from one Building and Development sector submission, that noted that they ‘vigorously oppose this legislative change.’ Further (incorrectly) adding:

“There are very few acts or legal instruments allowing authorised off icers to enter land without consent… it would be a disproportionate abuse of power to almost all conceivable breaches of the Act to allow an AO or AHO to enter land without consent. It would also be a breach of the right to privacy under the Charter.”