The great divergence of cultural heritage laws in Australia

Gunlom Falls is in Jawoyn People’s country. It is a beautiful place to many. It is sacred to the Jawoyn People, a constituent and fundamental part of their spiritual connection to their lands and waters, and held on trust for them by the Gunlom Aboriginal Land Trust. The area of the Falls and surrounds was leased by the Trust to the Director of National Parks (‘DNP’), a Commonwealth corporation sole continued in existence under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), and the leased area is therefore part of Kakadu National Park.

AAPA v Director of National Parks

In Chief Executive Officer, Aboriginal Areas Protection Authorty v Director of National Parks HCA [2024] HCA 16, the DNP, through a contractor, realigned a steep national park walking track near the Falls. The works involved earthmoving, vegetation clearing and building concrete steps in places. The DNP knew its works were taking place on a sacred site but did not obtain the necessary approval certificate under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (‘SSA’). The body with authority under the SSA, the Aboriginal Areas Protection Authority (‘AAPA’), prosecuted the DNP with a criminal offence under section 34 of the SSA. The Full Court of the Supreme Court of the NT found the DNP was not criminally liable under section 34 (see generally the facts set out in Edelman J’s judgment at [127]-[135]). The High Court unanimously found otherwise. Subsequently the DNP pleaded guilty to the offence in a NT Local Court and was fined.

The AAPA framed its submission to the High Court as an attempt to obtain a review of the principle the Crown is immune from criminal liability, under the general presumption at common law that the Crown is not generally bound by a statute unless express words to that effect were contained in it. The judgments of their Honours ranged from the short and simple (Steward J), to the incisive (Gaegeler CJ and Beach-Jones J, Gordon and Gleeson JJ), to the weighty (Jagot J) and to the, at times, almost dismissive (Edelman J, particularly of the minority judgment of Dixon and Rich JJ in Cain v Doyle (1946) 72 CLR 409 at 424) with an expressly Australian-minded jurisprudence. Edelman J states (at [120]): ‘More fundamentally, every consideration cited by Dixon J in support of the presumption, and the ultimate foundation claimed for the presumption, was, or is now, based on an incorrect premise or English constitutional notions that were displaced upon Federation in 1901’.

The ratio decidendi of the case is that the Crown qua body politic is presumed to be immune from criminal liability but the Crown qua statutory corporate entity or competitive commercial enterprise is not necessarily ipso facto immune. The DNP as a corporation sole is therefore a ‘person’, for the purposes of the NT interpretation legislation, and could not escape liability by virtue of a presumption it could hide behind its relationship to the Crown as a body politic. The case should be seen, like Bropho v Western Australia (1990) 171 CLR 1 (‘Bropho’), as a further departure from the common law rule about statutes not binding the Crown without express provision. Instead, modern rules of statutory construction require that all the relevant circumstances must be examined to determine whether or not the Crown is bound or criminally liable: those circumstances include ‘the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute and the nature of the activities of the Executive Government which would be affected if the Crown is bound’ (Bropho, per Brennan J, at [5]).

Obviously, this has implications for all Crown instrumentalities operating on and developing land. First Nations cultural heritage can be found on freehold as well as unallocated or allocated state land. However, the Northern Territory has laws which are a ‘gold standard’ for the protection of First Nations heritage. The AAPA is a body which is required to consult with and obtain the consent of First Nations people when considering applications for development on First Nations traditional lands. That engagement is of course entirely independent of the developer, which cannot influence the decision of the AAPA to issue (or not issue) a certificate authorising work. The powerful Central and Northern Land Councils have powers to assist First Nations peoples in their areas to protect their cultural heritage (section 23(1)(ba) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA’), see also below).