Proposed amendments to the Aboriginal Heritage Act 2006 (Vic) (Act) are set to increase the number of successful prosecutions for harming Aboriginal cultural heritage offences under sections 27 and 28.
The Aboriginal Heritage Amendment Bill 2015, which was introduced into the Legislative Council on 11 March, removes a key impediment to successful prosecutions, namely the requirement to assess mental culpability twice.
The proposed amendments to sections 27 and 28 of the Act remove the word ‘knowingly’, which removes the burden of proof on the prosecution to establish that an offender knowingly did an act that harms Aboriginal cultural heritage.
Under the proposed changes, an offender will be found guilty under section 27 if, at the time of an act, it was known that it was likely to harm Aboriginal cultural heritage.
Proposed changes to section 28 will have similar effect, creating a strict liability offence. The new provision is designed to apply to cases of less harmful actions than intended in section 27, and will cover actions that are likely to harm Aboriginal cultural heritage (whether knowingly or not).
We note that changes also clarify that corporate criminal liability will be attracted for offences under these sections.
- Readers should be aware that liability for a breach of these provisions will be attracted irrespective of whether the act was done knowingly, recklessly or negligently; and
- Developers should be aware that works that do not require a Cultural Heritage Permit or other approvals may result in the committing of an offence under sections 27 and 28 if they are likely to harm Aboriginal cultural heritage.