The Supreme Court is expected to hand down its decision mid-year in the appeal brought by Toodyay farmer Tony Maddox – a case that has become a test of how Western Australia’s Aboriginal Heritage laws are applied to ordinary landholders.
Last Friday the Supreme Court heard that the Department of Planning, Lands and Heritage did not notify anyone that all the tributaries of the Avon River were being considered for inclusion on the government’s Register of Aboriginal Sites, nor did it tell anyone after the decision was made.
It simply drew a red line around the Avon River and some of its tributaries on a government map and expected property owners to find it.
The current laws make it an offence to do a number of very ordinary things on a registered Aboriginal heritage site, including walk your dog, swear or “annoy” any person.
Somewhat ironically, the Aboriginal Heritage Regulations 1974 even make it an offence to “take part in any disturbance” in Forrest Place.
They also force property owners and land users to seek ministerial permission before they can “disturb the surface of the ground … or cut … remove … or destroy any tree … grass or other plant or part thereof whether living or dead“.
The law as it stands, if strictly enforced, is effectively unworkable, but it has been allowed to stand because the responsible department has been highly selective in who it decides to prosecute.
Mr Maddox isn’t the only one who has been charged under this law, but he is one of a very select few.
It is a law that has been questionably applied and risks, if he loses his appeal, being used much more often against innocent property owners in what sometimes seems more to make an ideological point than protecting any genuine heritage.
In court, it was argued that because Mr Maddox didn’t know a red line had been drawn around his property, the conviction should be overturned.
Section 62 clearly says it is a defence if a person “did not know and could not reasonably be expected to have known” the Act applied.
In light of all the evidence that the department did not notify any of the affected property owners, the Supreme Court has now adjourned to consider this as one of the grounds of appeal.
Whatever the outcome, the Act, its regulations and the way the department chooses to apply them all need to change.
WAFarmers has been supporting Mr Maddox and is actively working with politicians, the Pastoralists and Graziers Association of WA and other parties to make things better for everyone – including those who want to protect genuine Australian heritage.
Visit Tony’s website for more information and to donate to help cover his legal costs: www.TonyMaddox.info
