THE Government will introduce fines of up to $1.1 million and a "strict liability" offence to prevent developers and others from damaging Aboriginal artefacts and claiming they were unaware they were committing an offence.
The decision, made in cabinet this week, came from proposals by the Environment Minister, Carmel Tebbutt, and after the Herald this month revealed a lack of action under laws which were supposed to protect items and places of Aboriginal heritage.
In the past, the Department of the Environment and Climate Change failed to secure prosecutions because it was a defence for companies and individuals to claim they had "no knowledge" they were desecrating Aboriginal artefacts.
Changes, passed by cabinet yesterday and to be included in a draft bill include:
* The maximum fine for a breach rising from $22,000 for corporations to $1.1 million.
* Maximum penalty for individuals involved in damaging artefacts or sites rising from $11,000 fine and six months' jail to a $550,000 fine and two years.
* A "strict liability" offence of harm to Aboriginal objects or breaching a permit condition for working on the sites will incur a penalty of up to $220,000 for corporations, $110,000 and/or six months jail for individuals. The "strict liability" offence will mean that even if people did not know they had committed an offence, they can still be tried.
Since 2005 the NSW Government has approved permits to destroy or disturb sites at the rate of about three a week. In the first 10 months of 2008, the department did not reject a single application.
Ms Tebbutt said she expected the laws to be proclaimed before the end of the year and promised the new regime would mean Aboriginal artefacts and heritage sites would be better protected.
"I think the difficulty with enforcement to date has been that the requirement to prove knowledge has been very very difficult and the courts have taken a very narrow interpretation of that," Ms Tebbutt said.
"[Under the new laws] you don't have to actually prove the person knew it was an Aboriginal object they were damaging."
She said under the new laws Aboriginal communities would be consulted more before permission being given to work on an Aboriginal heritage site.
The minister said "in the order of 30" prosecutions had been successful per year under the act but it needed to be tightened. Ms Tebbutt said she would introduce a draft bill at first because the Aboriginal community had made it clear it wanted to consulted.
Aboriginal leaders are still sceptical at how much emphasis the department will place on protecting sites and communicating with them, even with the law changes. "I don't think it's addressing the fundamentals," Danny Chapman, the chief executive of Cobowra Land Council in Moruya, said.
The department issues permits "without even talking to people who know the country", he said.
But Mr Chapman said the move to create a "strict liability" offence was an important one.
In one recent case, the Government failed to secure a prosecution after earthworks were performed on a site at Schofields. The prosecution failed even though National Parks officers had ordered the company to stop because there were stones of significance on the land. The Court of Criminal Appeal found the prosecution needed to show the defendant knew the precise nature and location of actual objects.
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