High Court rules parks director not immune to prosecution over Kakadu sacred site damage

Australia’s highest court has handed down its definitive ruling on a long-running legal battle over damage to a sacred site through construction of a walking track at Gunlom Falls.

The popular tourist attraction has been closed to visitors while the court battle played out.

The High Court has ruled Australia’s national parks authority can be criminally prosecuted for damaging sacred sites in the NT following a dispute over a walking track in Gunlom Falls.

The Director of National Parks was charged with carrying out works on a sacred site without Traditional Owners’ permission in 2019 but pleaded not guilty on the basis that the Sacred Sites Act did not impose criminal liability on the Crown.

The NT Supreme Court subsequently sided with the DNP, ruling the common law presumption known as Cain v Doyle applied to it as a government-owned statutory corporation.

But in unanimously allowing an appeal against that decision on Wednesday, the High Court found while the principle applied to a “body politic”, it did not apply to a “body corporate such as the DNP”.

“Having regard to the Cain v Doyle presumption, s 34(1) of the Sacred Sites Act is properly construed to exclude the imposition of criminal liability on the Commonwealth but not to exclude the imposition of criminal liability on the DNP or on any officer of the Commonwealth,” the decision reads.

The Board of the Aboriginal Areas Protection Authority and custodians of Gunlom Falls, Kakadu, at the High Court in Canberra in December 2023. Picture: AAPA

In 2021, incoming director Jody Swirepik said the DNP’s not guilty plea came at the request of then commonwealth Attorney-General Michaelia Cash “to allow the constitutional law issues to be addressed”.

“It does not diminish my commitment to working with Kakadu’s traditional owners to protect sacred sites and preserve the natural and cultural heritage of Kakadu National Park now and into the future,” she said at the time.

Following the ruling, the Aboriginal Areas Protection Authority vowed to press on with the prosecution in the Darwin Local Court.

AAPA chief executive Benedict Scambary said for Parks Australia to “argue they are above the Sacred Sites Act” was “an insult to everyone who values our national heritage”.

“The former Attorney-General of Australia should be ashamed to have directed National Parks to claim the right to freely damage Aboriginal sacred sites,” he said.

The Board of the Aboriginal Areas Protection Authority at the High Court in Canberra in December 2023. Picture: AAPA

“This successful High Court appeal makes very clear that National Parks can be held to account under the NT Sacred Sites Act for damaging Aboriginal sacred sites.

“Going forward, Commonwealth corporations and officers in the NT cannot assume that Territory criminal laws, including the Sacred Sites Act, do not apply to them.”

AAPA chairman Mr Bobby Nunggumajbarr said the dispute had caused a lot of concern among custodians.

“Kakadu is an important place for the whole nation,” he said.

“Aboriginal people want to be able to share it with everyone but they must have confidence that its sacred places will be respected”.

“Now we can all work together to keep our sacred places safe.”

Senator Cash has been contacted for comment.