Tony Maddox: Defence barrister Christian Porter fails to get Aboriginal heritage case thrown out

Christian Porter has failed to have a case alleging a Toodyay real estate agent breached WA’s Aboriginal Heritage Act thrown out of court, with the magistrate saying a verdict could be reached even on “inherently weak, tenuous or vague” evidence. The barrister and former attorney-general made the bid on day two of the Perth Magistrates Court trial of Tony Maddox, who gave emotional testimony after Magistrate Andrew Matthews decided to press on. “Ultimately, there will be no early stumps,” Mr Matthews said. Mr Maddox, 71, was charged by the Department of Planning, Lands and Heritage last year, accused of damaging or altering a part of the Avon River — Boyagerring Brook — which runs through his rural residence north-east of Perth, without first seeking ministerial consent. Mr Maddox bolstered an existing creek crossing on his farm that provides access to his house, concreting the top surface, pumping in bore water and removing silt to create a large artificial lake. He argues the work was necessary as the previous crossing, which was comprised of sand and rocks when he bought the land in 2014, kept eroding during the rainy season. Mr Porter has questioned whether the Aboriginal heritage-registered Avon River site extends to tributaries and is using a special defence — a lack of knowledge — having already established in evidence that an online database showing the boundaries of significant sites could sometimes be inaccurate. Mr Maddox testified on Friday that he didn’t seek approval because he had no idea the Act applied to the creek and called for sites of Aboriginal cultural significance to be declared on property title deeds. “I’ve always tried to do the right thing. I’ve always sought advice,” he told the magistrate directly, fighting back tears. “I said to the investigators: ‘Had I known you existed, I would have called you and sought your advice’.” Mr Maddox claimed that when he suggested notifications on title deeds, one of the investigators said he had wanted that implemented for more than a decade. Mr Maddox added that DPLH was “absolutely the worst run department I’ve ever seen in my life”. During a fractious exchange, prosecutor Lorraine Allen, representing the department and the Aboriginal Affairs Minister’s office, questioned how the real estate veteran and former councillor could claim ignorance of the law. “Aboriginal heritage is important, very important,” he said. “That’s why it should be on my title.” Mr Maddox added that the now aerated creek had become a “complete sanctuary” for birds, turtles, fish, ducks and “even a kangaroo”. It had previously gone dry in summer but “that water is now there all year ‘round”. Closing addresses are scheduled for March 6. A colossal update of the 52-year-old Act was repealed last year, shortly after coming into force, after it sparked outrage from landowners, particularly farmers and pastoralists, who struggled to understand the complex and onerous new requirements. The laws, rewritten following Rio Tinto’s destruction of Juukan Gorge caves in the Pilbara, were reverted to the original 1972 Act, with traditional owners empowered to appeal decisions. If convicted, Mr Maddox faces up to nine months in jail and a $20,000 fine.