Discovery of Aboriginal heritage

An owner or occupier of private land who discovers an Aboriginal site, object or remains on their land must report it to the Minister for Aboriginal Affairs as soon as practicable [Aboriginal Heritage Act 1988 (SA) s 20]. From 1 January 2025, the maximum penalty for failing to report is a fine of $500,000 for a corporation, and $250,000 or imprisonment for 2 years or both for an individual.

The Minister may direct the owner or occupier or the land or the person who made the report to take immediate action to protect or preserve the Aboriginal site, object or remains [s 20(3)]. Failure to comply with such a direction is an offence with significant penalties [s 20(4)].

Both the Minister and an inspector appointed under the Act may give directions prohibiting or restricting access or activities affecting a site, object or remains, if satisfied that action is necessary for protection or preservation purposes [see ss 24 and 25 for the details of these powers]. From 1 January 2025, the maximum penalty for failing to comply with a direction of the Minister or an inspector under s 24 or s 25 is a fine of $500,000 for a corporation, and $250,000 or imprisonment for 2 years or both for an individual [s 26].

Special rules apply to the excavation of land where it may impact an Aboriginal site, object or remains. See ss 20A, 21 and 22 as in force from 1 January 2025 for more information.

Damage to Aboriginal heritage

From 1 January 2025, it is an offence to damage, disturb or interfere with any Aboriginal site, object or remains without Ministerial authorisation [s 23]. If done intentionally or recklessly, the maximum penalty is a fine of $2 million for a corporation and $250,000 or imprisonment for 2 years or both for an individual [s 23(1)]. In any other case, the maximum penalty is a fine of $50,000 for a corporation and $10,000 or imprisonment for 6 months or both for an individual [s 23(2)]. It is a defence to a charge against s 23(2) if a defendant can show they did not know and could not have been expected to know that the site, object or remains was an Aboriginal site, object or remains [s 23(4)].

Court powers

From 1 January 2025, a court that finds a person guilty of an offence under the Aboriginal Heritage Act 1988 (SA) may, in addition to imposing an appropriate penalty, order the person to [s 37DA]:

Penalties and amounts paid to the Crown under s 37DA are to be paid into the South Australian Aboriginal Heritage Fund established under the Act [s 19(2)].