Western Australia's 2023 heritage amendment let the Premier take a tribunal review of a ministerial consent to damage an Aboriginal site and decide it in place of the tribunal

What is happening?

In Western Australia, consent to use land in a way that damages or destroys a registered Aboriginal heritage site is given by a Minister under Section 18 of the Aboriginal Heritage Act 1972 (WA). Since a 2023 amendment, a party can ask the State Administrative Tribunal to review that consent decision, and the Premier can take the review application and decide it in place of the tribunal.

The path to that arrangement ran through a reform and its reversal. On 2020-05-24, two rock shelters at Juukan Gorge that sources describe as in use for more than 46,000 years were destroyed during mining operations carried out under a consent the state had issued under Section 18 as the Act then stood. The mining operator has published its own account of the event, including an apology and the remedial steps it describes.

Western Australia then legislated a replacement, the Aboriginal Cultural Heritage Act 2021, which received royal assent on 2021-12-22 and commenced in full on 2023-07-01. It included a statutory Aboriginal Cultural Heritage Council with a majority of Aboriginal members, empowered to make recommendations on heritage-impact applications. On 2023-08-08, 38 days after full commencement, the state government announced that it would repeal the 2021 Act and return to the 1972 Act.

The Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) received royal assent on 2023-10-24, and the restored and amended 1972 Act commenced on 2023-11-15. That amendment did two things to the consent regime at once:

• According to a law firm analysis of the legislation, it gave native title parties a right to apply to the State Administrative Tribunal for review of a Section 18 consent decision, where the original 1972 Act had given that right only to the project proponent.
• It inserted Section 18A. Under s 18A(2), where an application is made to the tribunal under section 18(5) for review of a Minister decision under section 18(3) or (6A), the Premier may determine the application if the Premier considers that it raises issues of such State or regional importance that it would be appropriate for the Premier to determine it. Under s 18A(4), the Premier has a 14-day window after the tribunal application is made in which to act.

On the enacted text, a consent decision made by a Minister of the state government can go to a tribunal for review, and the head of that same government can take the review and decide it in place of the tribunal.

Whose problem is this?

The review right and the power to take it over were enacted in the same amending Act, and they apply to the same applications. The words of Section 18A read here do not limit the power by who made the review application, so a proponent seeking review is inside the same wording as a native title party.

Where does this problem end?

The boundary is drawn around a single state statute and the path a consent decision travels once someone asks for it to be reviewed. Everything outside that path, including the national debate that the same destruction set off, is context rather than the object of this document.

What is the state now, and what should it be?

Now

Needs a new measurementthe target state: no source opened sets an official standard for when the Section 18A power should be used, how its use should be recorded, or what share of review applications should reach a tribunal determination. The state government did state what it wanted from the 2023 repeal — to reset, end confusion and strike the right balance — but that statement concerns the repeal of the 2021 Act and does not describe a target for the review mechanism.

How big is it?

The size of this problem cannot be expressed as a count of affected people from the sources opened. The quantity that would measure it is the number of Section 18 consents, tribunal review applications and Premier determinations since 2023-11-15. The Western Australian government publishes named registers of ministerial decisions under s 18(3), s 18(6A) and s 18B(3), year by year, but none of the sources used here reports counts drawn from them.

Two whole-state anchors describe the reach of the regime rather than its use. At the 2021 Census about 89,000 people in Western Australia identified as Aboriginal and/or Torres Strait Islander, 3.3 percent of the state population. A Western Australian government page states that about 86 percent of the state land mass is covered by a registered or determined native title claim, a figure dated to around 2018 and 2019 on that page.

Neither figure counts people affected by any single decision, and the two figures describe different things measured in different years. They are not multiplied or combined here, and the affected population is recorded as not derivable.

Under what conditions does it arise?

1. Consent to damage a site is an executive decision. Under Section 18 a Minister decides whether land may be used in a way that damages or destroys a registered Aboriginal site. The Juukan Gorge destruction in 2020 took place under a consent issued under that section as it then stood.

2. Review exists, but its forum depends on a discretion. The 2023 amendment connects a tribunal review under section 18(5) to a Premier power under Section 18A. The test in s 18A(2) is framed around what the Premier considers to be issues of State or regional importance. The sources opened set out no further criteria for that judgement.

3. The window is short and runs from the application. The Premier has 14 days after the tribunal application is made. A party that files for review therefore learns within about two weeks whether the tribunal or the Premier will decide it.

4. Use of the power is not visible in the sources opened. Decision registers exist for ministerial consents, but no source opened reports whether any review application has been determined by the Premier. Without that record, the practical reach of the provision cannot be read from the statute alone.

5. The alternative structure was withdrawn after a short period in force. The 2021 Act placed a statutory council with a majority of Aboriginal members into the application process, and the government announced its repeal 38 days after it commenced in full. The Premier said the 2021 Act had unintentionally caused stress, confusion and division, that its requirements went too far, were too complicated and placed unnecessary burdens on property owners, and that reverting to the original legislation would allow a reset. The Minister for Aboriginal Affairs told Parliament on 2023-08-09 that the 2021 Act had not delivered the clarity and security the government desired.

A review provision and a power to take that review over were written into the consent regime by one amending Act and took effect on the same day.

What has been tried?

Two structures were tried in Western Australia within two years, one built around a statutory council and one built around the restored Minister consent with a new review right. The second structure contains both the review right and the power that can move that review away from the tribunal.

What was found?

Why is it still unsolved?

Institutional gap — the review right added to the consent regime in 2023 reaches the tribunal only where the head of the government whose Minister made the decision does not take the application within 14 days.

The first part of the gap is structural. A Minister makes the Section 18 consent decision, a party applies to the State Administrative Tribunal for review, and under Section 18A the Premier may determine that application instead. The original decision and its review can therefore both sit inside the same executive government. The test for moving the application is the Premier's own view that it raises issues of State or regional importance, and no source opened describes further criteria, a requirement to give reasons, or a report to Parliament attached to that step.

The second part is visibility. The government publishes registers of ministerial consent decisions, yet no source opened reports how many review applications have been filed or how many the Premier has determined. A power that has never been used and a power used in every large project look the same when only the statute can be read. That means the existence of the review right cannot, on the available record, be translated into how often a tribunal actually decides a review.

The third part is that the other available structure was removed rather than adjusted. The 2021 Act had placed a statutory council with a majority of Aboriginal members into the process, and it was repealed after 38 days of full operation. The government gave public reasons for that repeal, and this document does not weigh them. Those reasons concern the 2021 Act; no source opened gives a stated reason for adding the Section 18A power.

What observation would mean it is solved?

Candidates — (a) Section 18A is repealed or amended so that a tribunal review of a Section 18 consent is decided by the tribunal (b) every use of the Section 18A power is published, with the matter, the date and the reasons given (c) the decision registers show, year by year, how many Section 18 review applications were filed and how many were determined by the tribunal rather than by the Premier.

(a) alone is weaker than it looks. Removing one discretion does not settle who makes the original consent decision, which remains with a Minister, and a later amendment could reinsert a similar power. A change to the text also says nothing about how many review applications are made in the first place.

(b) alone makes the power visible without changing it. A published list of call-ins with reasons would show whether the power is used rarely or routinely, but the review would still move out of the tribunal whenever the Premier chose to act.

(c) alone counts filings, not outcomes. A high share of reviews reaching the tribunal could reflect that few matters were judged to be of State or regional importance, or that few parties applied for review at all. The three have to be read together, and (c) needs a count of consents issued to be interpreted.

What is it connected to?

What these sources do not say

• Whether the Section 18A power has ever been exercised. No source opened reports a single determination by the Premier under that section, nor the matters, dates or outcomes of any. The absence of a report is not evidence that the power is unused.
• How many Section 18 consents and tribunal review applications there have been since 2023-11-15. The government publishes decision registers under s 18(3), s 18(6A) and s 18B(3), but no count drawn from them appears in the sources used here.
• Why Section 18A was added. The government stated reasons for repealing the 2021 Act. No source opened carries a stated reason for giving the Premier the power to determine tribunal review applications. Those are different propositions.
• Whether the Premier must give reasons, report to Parliament, or face further review when determining an application. No source opened addresses any of these.
• The enacted wording of section 18(5). The statement that native title parties may now apply for review, where the original 1972 Act gave that right only to proponents, rests on a law firm analysis written when the repeal was announced. The sources opened do not reproduce the enacted wording of that subsection.
• Whether Section 18A has been amended since 2023. The enacted text of the 2023 amending Act supports the description here; no source opened states whether the provision has changed since.
• How Western Australian native title parties have responded to Section 18A specifically. No such response was found in the sources opened, as distinct from reactions to the repeal of the 2021 Act in general.
• The position of the Western Australian government on Section 18A itself. Its published reasons concern the repeal; no statement defending or explaining the call-in power was found.
• What happened to the Commonwealth partnership after June 2026. The latest source opened is a 2025 status review; no 2026 source reports on it.
• How much land is currently under native title claim or determination. The 86 percent figure is dated to around 2018 and 2019 on the page that gives it.

See the evidence

The only primary legal text among the opened sources is the 2023 amending Act on the official Western Australian legislation site, and it supports the Section 18A power, the 14-day window and the assent date. The standing of native title parties to seek review and the commencement date of the restored Act rest on a law firm analysis; the consolidated 1972 Act that would confirm both could not be read as text. The reasons for the repeal come from a news report of statements by the Premier and the Minister for Aboriginal Affairs, not from the parliamentary record itself. Commonwealth material comes from a news report, a law firm review and the reform page of the partner alliance, because the government response document returned HTTP 403. The decision registers that would give counts of consents, review applications and Premier determinations were located but not readable as text, so no count from them is used anywhere in this document. This is a Path A output (research-based definition), so observation_refs is empty and provenance_mode: press-derived.

People affected

Estimated range Not derivable

The reason and what is missing are listed under “What is missing” below