Recommendation Ten: Amending the prosecution powers

"There’s no punishment, no comeuppance for destroying our sacred places. So, if making money’s your only interest, why would you bother to work with us?"

Issue

There is no prosecution and so no disincentive for the destruction of Aboriginal Cultural Heritage.

Background

The Act states that "proceedings for an offence against this Act may only be taken by the Secretary or a police officer" and that "the Secretary may, in writing, delegate any of his or her powers, functions, or duties under this Act, other than this power of delegation, to a person employed in the Department [of Premier and Cabinet]."

Read together, these provisions mean that the power to prosecute a person for an offence against the Act may only be taken by an employee of DPC, as delegated to by the Secretary. As it stands, these rights and responsibilities of prosecution lie with FPSR.

Recommendation

That the rights and responsibilities of prosecution be moved from DPC (as delegated by the Secretary) to the Council so that it can prosecute as a statutory authority on its own behalf. Other statutory authorities, such as the Environment Protection Authority and the Royal Society for the Prevention of Cruelty to Animals, have prosecution powers. Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners. To award increased powers to Traditional Owners in the oversight and management of prosecuting and actioning regulatory responses to offences, would be in keeping with principles of self-determination, and specifically with the Act’s purpose of empowering Traditional Owners as protectors of their Cultural Heritage.

To this end, it is further proposed that Aboriginal Heritage Officers (AHOs) and Authorised Officers (AOs) should be empowered to issue infringement notices in relation to minor offences. Infringement notices enable offences to be handled without a court’s intervention. Provision of powers to AHOs and AOs to issue such notices would relieve some of the workload from the state and transferring the powers to Council could also ensure that there is increased action taken against offences. FPSR has often taken a cautious approach to prosecution. RAPs often expend large amounts of time and resources on gathering evidence for potential offences yet are not closely involved in FPSR’s investigation process. However, if the powers were moved to Council and increased powers were provided to AOs and AHOs, breaches of the Act could be acted upon more often and more thoroughly. In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Empowering the Council to prosecute offences could also build stronger relationships between RAPs and Council. The prospect of Council’s full engagement with RAPs throughout the investigation and prosecution procedures would provide for both increased transparency in the process and stronger links between the parties.

Consideration

Shifting responsibility will lead to increased protection for Aboriginal Cultural Heritage

Legislation is only as effective as it is enforceable. Since the introduction of prosecutorial rights and responsibilities in 2016, there has been a negligible number of prosecutions.

As stated by a Traditional Owner organisation:

"Infringement notices should be issued when: Harm to Cultural Heritage has been caused outside what is permissible in an approved CHMP/CHP; the Sponsor has not adhered to a condition or contingency; and a CHMP/CHP has not been prepared when one is required."

In turn, this would have a denunciating and deterrent effect to encourage increased compliance with the Act.

Shifting responsibility from the Secretary to the Council aligns with self-determination and the intended purpose of the Act

To award increased powers to Traditional Owners, in the oversight and management of prosecuting and actioning regulatory responses to offences, would be in keeping with principles of self-determination, and specfically with the Act’s purpose of empowering Traditional Owners as protectors of their Cultural Heritage.

Notably, a Heritage – Policy submission also supported the proposal and proposed further transfer of powers to the Council stating:

"although not one of the proposals in the Discussion Paper, the Victorian Aboriginal Heritage Council should also be given the power to make protection declarations under Part 7 of the Act."

Infringement notices provide sanction for harm to Cultural Heritage without burdening the courts

Offences against the Act result in harm to Aboriginal Cultural Heritage, which is harm against the interests of RAPs and Traditional Owners and the general public.

One Heritage – Business sector submission identified that:

"an infringement notice could be issued where there has been a contravention of the Act that requires a more formal sanction but where the matter may be resolved without legal proceedings."

Notably, this would create required protections swiftly and expediate the level to which offences under the Act are taken seriously as well as alleviating the burden that the current system places on RAPs, the Director of Public Prosecutions (DPP) and the court system.

Submission response to the recommendation

Increasing powers to the Aboriginal Heritage Council by transferring some of the Secretary functions will increase and strengthen their autonomy to align with RAPs and Victorian Aboriginal community views and aspirations.

Gunaikurnai Land and Waters Aboriginal Corporation

Gunaikurnai Land and Waters Aboriginal Corporation represents Traditional Owners from the Brataualung, Brayakaulung, Brabralung, Krauatungalung and Tatungalung family clans, who were recognised in the Native Title Consent Determination, made under the new Traditional Owner Settlement Act 2010, the first such agreement under that Act. It is the Registered Aboriginal Party for the Gunaikurnai claim area under the Aboriginal Heritage Act, 2006 and has a membership of more than 600 Traditional Owners.

Community support for the recommendation　

Whilst one Building and Development sector submission called for more evidence that existing powers to prosecute were not being used appropriately, the recommendation was widely supported by submissions. Overwhelmingly, Traditional Owner organisations expressed views aligning with this one, that this recommendation:

"Allows the interests of the Traditional Owners to be held higher and specifically than those of potentially politicised industry. Traditional Owners can now enforce or prosecute actions and actively protect Heritage and customs as necessary."

Industry bodies, local government authorities and Traditional Owner organisations supported the recommendation in principle though some submissions also expressed that adequate training and resourcing would be necessary. For example, one Traditional Owner organisation said:

"for this responsibility to be successful, it needs to be properly resourced";

and a LGA sector submission stated that:

"Changing the responsibility of prosecution should only be done with clear parameters and policies around how these powers will be enacted. Due consideration of what sort of enforcement will be undertaken should be made to ensure that the application of any prosecution powers is done in a balanced and consistent manner."

UNDRIP and Best Practice Standards