Section 18 Minister Override & Site Destruction Failures

1. The Mechanics of the Section 18 Destruction Permit

Section 18 of the Aboriginal Heritage Act 1972 (WA) is the single most infamous statutory provision in Australian cultural heritage law.¹ While section 17 nominally makes it an offense to excavate, destroy, damage, or alter an Aboriginal site, section 18 creates a statutory bypass mechanism: any landholder, mining corporation, or government developer wishing to destroy a sacred site can submit a formal section 18 notice to the Aboriginal Cultural Material Committee (ACMC) requesting ministerial consent to proceed.² Once the Minister signs the section 18 notice, the developer receives absolute statutory immunity from criminal prosecution for the complete destruction of the site.³

2. Total Asymmetry: The Lack of Indigenous Appeal Rights

The structural injustice of section 18 was cemented by a profound legal asymmetry in rights of appeal.⁴ Under section 18(5), if the Minister refused a developer's application or imposed restrictive conditions, the developer had an automatic right of administrative appeal to the State Administrative Tribunal (SAT).⁵ Conversely, if the Minister approved the destruction of a sacred site—even over the vehement objections of traditional custodians—Aboriginal people possessed zero statutory right of appeal under the Act.⁶ Custodians could not appeal to the SAT; their only recourse was expensive, complex judicial review in the Supreme Court on narrow procedural grounds, which almost never overturned ministerial discretion.⁷

3. The Rubber-Stamp Machine: Thousands of Consents Granted

Between 1972 and 2020, section 18 operated as a corporate rubber-stamp machine.⁸ Parliamentary inquiries revealed that over forty-eight years, Western Australian Ministers for Aboriginal Affairs granted more than 3,500 section 18 consents to mining companies, property developers, and state infrastructure agencies, while rejecting fewer than a dozen applications—representing an approval rate exceeding 99.5%.⁹ This relentless destruction obliterated thousands of ancient rock shelters, burial grounds, sacred waterholes, and ceremonial stone alignments across the state, including the catastrophic blasting of the Juukan Gorge rock shelters by Rio Tinto in May 2020.¹⁰

4. The Legislative Collapse and Sovereign Self-Determination

The international outrage over Juukan Gorge forced the Western Australian Parliament to pass the Aboriginal Cultural Heritage Act 2021, intended to replace the 1972 Act.¹¹ However, following a furious backlash from pastoralists and mining corporations, the Cook Labor government sensationally repealed the new 2021 Act in August 2023 after just five weeks in operation, reverting back to the amended 1972 statute with section 18 ministerial consent still intact.¹² This capitulation demonstrated once again that settler-state parliaments will always prioritise corporate extraction over First Nations sacred heritage, reinforcing the sovereign necessity of unceded custodial jurisdiction.¹³