“If a TO knows that the Object is Sacred, and is an AHO, they should be able to take it on the spot. Not for one moment longer should it be away from the TO’s care and not for one moment at all, should their knowledge about its status be able to be interrogated.”
The limitation of search and seizure powers of Authorised Officers and Aboriginal Heritage Officers is actively enabling the commission, repetition, and continuation of offences regarding Secret or Sacred Objects and Aboriginal Ancestral Remains.
Currently, the Act provides very limited powers in relation to the ability of Authorised Officers or Aboriginal Heritage Officers to:
- to enter and search land or premises, and
- seize Secret or Sacred Objects or Aboriginal Ancestral Remains.
Whilst officers are provided a right of entry onto premises open to the public or with the consent of the owner/occupier, it is unlikely that someone in contravention of the Act will consent to the entry of Authorised Officers or Aboriginal Heritage Officers.
Having gained entry, the seizure of Secret or Sacred Objects or Aboriginal Ancestral Remains is only lawful if there is a subsequent positive determination as to the Secret or Sacred status of the Objects or identity of the Aboriginal Ancestral Remains. As the determination can currently only be made by a Court, this places an extraordinary interpretive burden on Authorised Officers or Aboriginal Heritage Officers in undertaking duties in the field. It also increases the likelihood of subsequent litigation to determine the legitimacy of their actions.
The Act should be amended to introduce search and seizure powers when Authorised Officers or Aboriginal Heritage Officers reasonably believe that there is a need for such an action around Secret or Sacred Objects Aboriginal Ancestral Remains. The power would be limited to being for the purposes of preventing the commission, repetition, or continuation of an offence against the Act.
The powers of Authorised Officers under the Fisheries Act 1995 (Vic) provide an example:
“Search, inspect, measure, test, photograph or .lm any part of the place and seize anything that is being used by, or that is in the possession of, a party who has just committed or is reasonably suspected of having committed, or is committing or otherwise appears to be just about to commit, an offence against the Act – pertaining to Secret and Sacred Objects.
This should extend to any case where a person is found behaving or acting in such a manner or under such circumstances that Council believes on reasonable grounds, without having observed the commission of an offence against the Act, that the person found has committed such an offence.”
The above is in line with powers available under the Aboriginal Heritage Acts of other jurisdictions i.e., Aboriginal Cultural Heritage Act 2003 (QLD).
UNDRIP and Best Practice Standards
This issue should be considered in relation to Article 8:
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:
Reviewed 03 October 2021