Cook Government rejects claims Aboriginal Cultural Heritage Act ‘erodes private property rights’

The WA Government has rubbished claims by a former Nationals MP that “untrained and unqualified” inspectors will have “near-unfettered powers of search and seizure” on private property under the new Aboriginal Cultural Heritage Act. Former Agricultural Region MLC Paul Brown has labelled the laws, which took effect on July 1, “a fundamental erosion of private property rights”. While the Act’s regulations have been widely criticised, Mr Brown — owner of Hedland Export Depot and a prominent figure in WA’s northern cattle industry — said the real “devil in the detail” was in the Act itself. “Everyone is being sidetracked by the discussions around what’s in the regulations, but most people actually haven’t read the Act (in its entirety),” he said. “They’ve got to Section 100 where it talks about activity tiers, then they’ve screamed bloody murder at the cost. “That’s fair enough, because it’s a massive impost on us, and everything that’s been said has been warranted. . . but the Act is where the power lays, not in the regulations.” Section 231 of the Act outlines certain powers appointed to inspectors, stating they may “enter a place in accordance with an entry warrant” for inspection purposes. While an inspector cannot enter a dwelling without the “informed consent of an occupier”, they can at any time enter a place that is “not a dwelling” — the definition of which is not clearly stated. Inspectors also have the power to “stop and enter” any vehicle “other than a mobile home”, at any time, for inspection purposes; to “detain the vehicle for a reasonable period”; and “move the vehicle to another place suitable for carrying out an inspection”. When stopping a vehicle, “the inspector may use any means that are reasonably necessary in the circumstances to do so” — as long as it is unlikely to “cause death or grievous bodily harm”. They can also “make reasonable use of any equipment, facilities or services on or in a place or vehicle in order to carry out an inspection and for that purpose operate the equipment or facilities”. Inspectors — who are appointed by the CEO of the newly established Aboriginal Cultural Heritage Council — are authorised to carry out inspections to ascertain whether the Act “has been or is being contravened”, or to inspect any relevant records. “My concern is that a non-government person. . . can be appointed to a position, as an Aboriginal inspector, where they have the power to roam all over your property without question,” Mr Brown said. “They have the power to enter buildings — the only building they can’t enter (without the occupier’s permission) is a dwelling, but they can go into offices, workshops, sheds, buildings, vehicles. “They can stop and search vehicles, they can commandeer equipment and machinery, including vehicles, and they can also co-opt other people to assist them. “This is someone that’s not a government employee, not covered by the Public Service Act, not a police officer or a Fisheries officer. “They have the right to go onto your property, to enter your buildings, to search and seize items, using force if necessary, as long as it’s not deadly or likely to cause grievous bodily harm. “If this is not the biggest fundamental change to civil rights in our State, I don’t know what is.” In an emailed statement to Countryman, Aboriginal Affairs Minister Tony Buti vehemently refuted Mr Brown’s claims, saying they were “all incorrect”. “The Act provides for the role of qualified inspectors to undertake investigations where there’s a reasonable suspicion of an offence under the Act, such as harm to Aboriginal cultural heritage,” Dr Buti said. “The new laws clearly sets out what an inspector can and can’t do. They are employed for their legislative compliance and investigation skills. “An inspector will need the consent of the occupier to enter a private residence. If the person refuses, the inspector will require a warrant to enter the property and conduct a search. “While inspectors have the powers to search a vehicle, they cannot seize a vehicle. “The Department of Planning, Lands and Heritage has employed inspectors, as part of their investigation team, for the past 10 years to help enforce the 1972 Act. “The powers are consistent with other Western Australian laws.”