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aboriginalheritagecouncil.vic.gov.au

Proposal Sixteen

Introducing civil damages provisions.

“Juukan Gorge is one awful, soul destroying example of destruction. Here, in Victoria, ask any RAP and they’ll give you others that were destroyed on their Country and in the last few years. Something has to change because this system is well and truly broken.”

Issue

The destruction of Aboriginal Cultural Heritage is considered an acceptable risk as there are very few prosecutions.

Background

Currently, all offences capable of being committed under the Act are criminal offences.

Proposal

That civil damages be introduced for offences against the Act. Introducing civil damages provisions will result in greater compliance for the following key reasons:

  1. Introducing civil damages will urge higher rates of compliance amongst corporations, for whom the possibility of criminal prosecution may be less of a threat than that of civil liability and the ensuing damages.
  2. The DPP has the ultimate discretion to prosecute criminal offences under the Act. The DPP has strict evidentiary requirements for pursuing legal action, meaning that many suspected offences are not prosecuted. In comparison, the decision to prosecute civil offences would not lie with the DPP. This would potentially result in more offenders being held liable.
  3. For civil offences, the relevant threshold for establishing liability is if a party is found to have committed an offence on the ‘balance of probabilities.’ This is lower than the threshold for criminal offences, which dictates that it must be ‘beyond reasonable doubt’ that a party offended. Introducing civil damages provisions would therefore result in a lower standard of proof for parties being held liable for offences against the Act.
  4. The capacity for prohibition of use or development of land for a period of up to 10 years on a site where unlawful destruction has occurred would be introduced. This is to align the Act with the provisions introduced to the Planning and Environment Act 1987 in 2021, that give similar protections for non-Aboriginal heritage. This would also be in line with other provisions of the same Act, that allow for the protection of areas and landscapes with heritage and cultural significance – both Aboriginal and non-Aboriginal. 

Consideration

Key proposal for ensuring compliance

The criticism that civil damages will not encourage higher rates of compliance is made on an erroneous basis. Currently, very few compliance breaches are prosecuted as the threshold ‘beyond reasonable doubt’ is considered too challenging to prove in relation to many offences that harm Cultural Heritage. The implementation of Proposal 16 and the subsequent use of the ‘balance of probabilities’ liability threshold would result in increased liability for breaches of the Act. In turn, this would encourage greater compliance amongst all parties.

Council acknowledges that businesses are deterred by both criminal prosecution and civil liability. For the purposes of this proposal, it is not important to conclude definitively whether criminal or civil liability is a stronger deterrent for corporations who may be liable for harming Cultural Heritage. Proposal 16 is simply aimed at maximising compliance with the Act by ensuring that there are multiple layers of legal responsibility for certain offences. It does this by ensuring that parties will be held liable for civil damages and may also attract the threat of criminal prosecution for certain breaches of the Act.

Nuanced implementation

Council affirms that it will introduce any civil damages provisions with nuance, taking into account the severity and harm of each offence. Although the introduction of civil damages for every offence in the Act would ensure the highest rates of compliance, such a blanket approach will not necessarily be adopted. Council will consider each individual offence and decide whether civil liability is applicable to that offence.

Council confi rms that civil damages would co-exist with potential criminal responsibility for certain offences. Council also confirms that the introduction of civil liability for offences against the Act will not preclude the DPP’s discretion to prosecute potential incidences of criminal liability. The responsibility to pursue legal action for criminal offences will still ultimately lie with the DPP.

Submission to the response to the proposal

“I fully support the proposal to introduce liability for civil damages. I believe we are losing so much significant cultural heritage due to the punishment being worth the risk or cheaper/easier than doing the right thing.”

Helen Kalajdzic, Secretary of the Stanley Park Committee of Management

Helen Kalajdzic is Secretary of the Stanley Park Committee of Management. The land that became Stanley Park was purchased by the community in 1919 and now belongs to the Macedon Ranges Shire Council. The 1983 Ash Wednesday bush fires caused significant damage, leading to massive regrowth of blackberry and broom. Our volunteers meet eight times a year for on-ground works with mainly weed control and revegetation. Additionally, we have a number of partnerships that attend at other times of the year to work on projects. The restoration works have brought back indigenous grasses, shrubs, wildfl owers and maidenhair fern. The park forms a wildlife corridor close to the Macedon Regional Park.

Community support for the proposal

This proposal received widespread support, with several parties noting the importance of ensuring high levels of compliance with the Act. The Traditional Owner organisations sector particularly welcomed the introduction of civil damages provisions as a key priority for reform.

However, one submission from the Traditional Owner organisation sector was critical of the idea that civil damages should be introduced at all whilst some minor concerns relating to the procedural implementation of the amendments were also raised:

“In developing this proposal, it would need to be clarified whether civil damages would coexist in the system with potential criminal charges (with the option of criminal prosecution in particular instances) or whether it would be a change entirely to civil damages with this the only option.”

UNDRIP This issue should be considered in relation to Article 11:
“States shall provide redress through eff ective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”
Best practice standards in Indigenous cultural heritage management and legislation

This recommendation should be considered in relation to Best Practice Standard 8 – Resourcing compliance and enforcement:
“Wherever possible, affected Indigenous communities should be adequately empowered and resourced to undertake necessary compliance and enforcement functions.”

Reviewed 19 April 2021

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