❓ The WA parliamentary question investigates prosecutions for Aboriginal heritage site damage, revealing several instances of reported damage, prosecution outcomes, and reasons for not prosecuting in certain cases. A conviction was obtained in one case, resulting in a fine and costs.
AnsweredQoN 3202Legislative Council
QuestionView source ↗
(1) Has the Department of Aboriginal Affairs (DAA) submitted any prosecution briefs to the State Solicitor's Office (SSO) relating to prosecution for site damage in the period of the current Government? (2) If yes to (1), please names the sites in question, in which areas and by which companies or individuals the damage was recorded and the dates that site damage was recorded? (3) Did DAA recommend that the SSO prosecute in any of these cases and, if so, which ones? (4) Did the SSO prosecute any of these cases? (5) If SSO did not prosecute in any of these cases, what grounds were given for not prosecuting? (6) When was the last time a case under the Aboriginal Heritage Act 1972 was prosecuted and in relation to what case? (7) If there were prosecutions, what was the result of these prosecutions? (8) If successful, what penalty was imposed on the person or company prosecuted?
AnswerView source ↗
Answered
11 August 2015
Response time
56 days
(1) Yes.
(2) (a) Kearney Aboriginal Reserve 26399 - David Colin ARCHIBALD - 17.04.2009 and between 27.05.2009 and the 28.05.2009.
(b) Mining Tenements 47/306; 47/309 and 47/255 and Temporary Reserve 70/461 - Cemex Australia Pty Limited - Between September 2008 and 26.11.2008.
(c) Mining Tenement 47/389 Port Samson - Gregory John SMITH, Timothy Knowles, Beau Matjuszenko - 04.02.2009.
(d) Mt Leonora DIA 1737 - Landgate - Between 23.06.2009 and 15.08.2009.
(e) Yandagudji Creek in the vicinity of Telfer WA - Cameco Australia Pty Ltd - On or about 05.10.2009.
(f) Yantikurji DIA 11786 - Cameco Australia Pty Ltd - On or about 28.01.2010
(g) Lake Jingee - Farm Break Developments Pty Ltd - 26.05.2010.
(h) Mining Tenements 47/1409; 47/1413 and 47/1431 (Firetail area of Solomon Iron Ore Project) - Fortescue Metals Group Ltd - Between November 2010 and November 2011.
(3) The State Solicitor's Office receives prosecution briefs from a range of Departments and agencies including the DAA. Normally, those Departments and agencies do not "recommend" that prosecution action be taken. Instead, the brief is forwarded to the State Solicitor's Office for assessment and advice. The assessment by the State Solicitor's Office is aimed at determining whether the evidence contained in the brief discloses a prima facie case (ie: evidence which if believed would establish the elements of the offence beyond reasonable doubt). In addition, the brief is assessed to determine whether it is in the public interest to proceed with prosecution action. This involves consideration of a range of factors - including whether (on the available evidence) there are reasonable prospects of obtaining a conviction. After assessing the brief, the State Solicitor's Office provides advice as to whether or not prosecution action is possible and/or advised. Ultimately, where the evidence on the brief discloses a prima facie case it is for the Department or agency to consider whether to exercise its prosecutorial discretion in relation to the matter.
(4) Yes
(5) In respect to (2)(a) and (b) above, prosecution action was not commenced because the limitation period for doing so had expired.
In respect to (2)(c) to (h) above, prosecution action was considered to be not in the public interest.
(6) Instructions to initiate possible action against Gregory John Smith for alleged damage to Mining Tenement 47/389, Port Samson were received by the State Solicitor's Office in February 2010.
(7) A conviction was obtained against Gregory John Smith.
(8) A fine of $3,500 was imposed and the accused was also ordered to pay $879.70 costs.
(2) (a) Kearney Aboriginal Reserve 26399 - David Colin ARCHIBALD - 17.04.2009 and between 27.05.2009 and the 28.05.2009.
(b) Mining Tenements 47/306; 47/309 and 47/255 and Temporary Reserve 70/461 - Cemex Australia Pty Limited - Between September 2008 and 26.11.2008.
(c) Mining Tenement 47/389 Port Samson - Gregory John SMITH, Timothy Knowles, Beau Matjuszenko - 04.02.2009.
(d) Mt Leonora DIA 1737 - Landgate - Between 23.06.2009 and 15.08.2009.
(e) Yandagudji Creek in the vicinity of Telfer WA - Cameco Australia Pty Ltd - On or about 05.10.2009.
(f) Yantikurji DIA 11786 - Cameco Australia Pty Ltd - On or about 28.01.2010
(g) Lake Jingee - Farm Break Developments Pty Ltd - 26.05.2010.
(h) Mining Tenements 47/1409; 47/1413 and 47/1431 (Firetail area of Solomon Iron Ore Project) - Fortescue Metals Group Ltd - Between November 2010 and November 2011.
(3) The State Solicitor's Office receives prosecution briefs from a range of Departments and agencies including the DAA. Normally, those Departments and agencies do not "recommend" that prosecution action be taken. Instead, the brief is forwarded to the State Solicitor's Office for assessment and advice. The assessment by the State Solicitor's Office is aimed at determining whether the evidence contained in the brief discloses a prima facie case (ie: evidence which if believed would establish the elements of the offence beyond reasonable doubt). In addition, the brief is assessed to determine whether it is in the public interest to proceed with prosecution action. This involves consideration of a range of factors - including whether (on the available evidence) there are reasonable prospects of obtaining a conviction. After assessing the brief, the State Solicitor's Office provides advice as to whether or not prosecution action is possible and/or advised. Ultimately, where the evidence on the brief discloses a prima facie case it is for the Department or agency to consider whether to exercise its prosecutorial discretion in relation to the matter.
(4) Yes
(5) In respect to (2)(a) and (b) above, prosecution action was not commenced because the limitation period for doing so had expired.
In respect to (2)(c) to (h) above, prosecution action was considered to be not in the public interest.
(6) Instructions to initiate possible action against Gregory John Smith for alleged damage to Mining Tenement 47/389, Port Samson were received by the State Solicitor's Office in February 2010.
(7) A conviction was obtained against Gregory John Smith.
(8) A fine of $3,500 was imposed and the accused was also ordered to pay $879.70 costs.
Explore WA Government Data
Search the full archive in the free dashboard, or query programmatically via API.
Explore more
Government Gazette
Appointments, regulatory notices, planning changes.
Hansard
Debates, questions, speeches and sentiment.
Tabled Papers
Reports and documents tabled in Parliament.
Committees
Committee profiles and recent reports.
Regulations
Subsidiary legislation with filters and summaries.
Bills
Proposed laws and parliamentary progress.
Acts
Current WA legislation and summaries.
Explanatory Memoranda
Bills with EMs (text/PDF) available.
Members
MP profiles, party breakdown and rankings.
Pollie Rankings
Data-driven rankings across 19 categories.
Amendment Chains
Track how schemes and regulations evolve over time.