Aboriginal Affairs Planning Authority Act 1972

The Act’s primary beneficiaries and subjects are “persons of Aboriginal descent” – defined in s.4 as any person living in Western Australia who is wholly or partly descended from the original inhabitants of Australia, claims to be Aboriginal, and is accepted as such in the community in which they live. This self‑identification plus community acceptance test (derived from pre-Mabo jurisprudence but retained) determines eligibility for land use rights, Council membership, Trust membership, and access to services and financial assistance.

All Western Australian government departments and agencies are affected through the coordination obligations of the Committee (s.19(3)) and the duty on the Minister to consult the four statutory bodies (s.7). The CEO of the Department principally assisting the Minister (currently within the Department of Planning, Lands and Heritage) exercises significant delegated powers and controls prosecutions (s.31(2)). The Trust, Authority, Council, and Committee members – all required to be persons of Aboriginal descent in the case of the Trust and Council – bear governance responsibilities.

Private parties are affected in several ways. Non‑Aboriginal persons face strict trespass liability on reserved lands (s.31), subject only to narrow exceptions. Miners and petroleum operators are partially insulated by s.30(2), which preserves the operation of the Mining Act 1978, Petroleum and Geothermal Energy Resources Act 1967, and other resources legislation. Persons seeking to acquire interests in reserved land must obtain Authority consent and have that consent recorded (s.30(1)). Businesses, universities, and contractors may be engaged by the Authority under s.15(2) or collaborate under s.14(3).

The broader Aboriginal community is affected through the representative functions of the Council and the requirement that the Authority and Trust act consistently with the wishes of Aboriginal inhabitants of particular areas “so far as that can be ascertained and is practicable” (s.23(c)). Descendants of persons who died before the 2012 commencement day have their estates still governed by the repealed Part IV rules (s.52).

Public sector employees, officers of the Department, and delegates (including Trust members under s.21A) exercise statutory powers and enjoy presumptions of regularity (ss.9(4), 24(3)). Courts and judicial officers must take judicial notice of the seals of the Authority and Trust (ss.8(3), 22(2)) and apply the evidentiary presumptions in s.47.

The Authority owes a statutory duty to promote well‑being and account for Aboriginal views (s.12). Its functions in s.13 are expressed as duties (“are to”) rather than mere powers. The Minister may give general or specific directions to any of the four bodies, which must comply (s.7(2)). The Trust must manage land in accordance with Aboriginal wishes where practicable (s.23(c)) and act as the corporate representative of Aboriginal inhabitants (s.23(e)).

Rights conferred include the right of the Council to advise (s.18(1)), the right of the Committee to coordinate (s.19(3)), and the right of Aboriginal inhabitants to have their customary tenure recognised by proclamation (s.32). Persons of Aboriginal descent enjoy a defence to trespass (s.31(1)(a)) and presumptive standing in prosecutions (s.47(a)). The Act creates a right to equal access to public facilities and services (s.42), which operates as an anti‑discrimination overlay on general government service delivery.

Delegations are tightly controlled. The Authority may delegate most powers except the delegation power itself (s.9(1)), and the CEO’s delegation must be in the prescribed manner (s.11(1)). The Trust’s delegation of consultation functions regarding entry authorities is limited to Gazette publication and specific conditions (s.21A). Delegates step into the shoes of the delegator, including subjective states of mind (ss.9(2), 21A(7)).

Financial rights include the Authority’s ability to receive rentals, royalties, and profits for the benefit of Aboriginal people (s.28(a)) and to lend on mortgage for land improvement (s.41(3)). The Trust may grant, sell, or mortgage real property only with ministerial approval (s.20(3)(c)). Members of the Council and Trust are entitled to remuneration and allowances determined by the Minister (ss.18(6), 21(12)).

Evidentiary and procedural rights are significant: authorised representatives may appear for Aboriginal parties notwithstanding the Legal Profession Uniform Law (WA) s.10 (s.48), and presumptions operate in favour of the prosecution on descent, authority to prosecute, and boundaries (s.47). Good‑faith protection from personal liability extends to the Minister, CEO, and anyone exercising statutory functions (s.17).

The Act contains relatively few specific offences. The centrepiece is the trespass offence in s.31(1), which carries the default penalties in s.50: $1,000 or 9 months’ imprisonment for a first offence; $5,000 or 12 months for subsequent offences (as substituted by the Sentencing Legislation Amendment and Repeal Act 2003). Prosecutions require CEO authority (s.31(2)), reflecting a policy of centralised control.

Regulations made under s.51 may create additional offences with identical penalty ceilings (s.51(3)). No other specific offences are created in the body of the Act; s.50 therefore operates as a general penalty provision for any unpenalised contravention.

Enforcement mechanisms are largely administrative. The Authority’s consent is a precondition to granting interests over reserved land (s.30(1)(a)), giving it a veto power. Proclamations altering reserved land boundaries or creating customary tenure are executive acts (ss.25, 32) but subject to parliamentary disallowance procedures (s.25(2)). The Minister may direct the statutory bodies (s.7(2)) and approve or withhold approval for land dealings (s.20(3)(c)).

Civil enforcement is indirect. The Authority and Trust may sue and be sued (ss.8(2), 20(3)(a)). Breach of statutory duty is not expressly created, but the protective purpose of the land provisions may ground equitable or administrative law remedies. The Financial Management Act 2006 and Auditor General Act 2006 apply to financial accountability (s.45), providing audit and reporting oversight.

Presumptions in s.47 ease evidentiary burdens in prosecutions. Delegation presumptions (ss.9(4), 24(3)) protect the validity of acts by delegates. Judicial notice of seals (ss.8(3), 22(2)) streamlines proof of corporate acts.

The Act is expressly subject to resources legislation: s.30(2) provides that nothing in the section affects the Mining Act 1978, Petroleum and Geothermal Energy Resources Act 1967, or any other Act relating to minerals or petroleum. This carves out a significant practical limitation on land control.

Financial provisions are integrated with the Financial Management Act 2006. The Aboriginal Trading Account and Aboriginal Affairs Planning Authority Account are agency special purpose accounts established under s.16 of that Act (ss.39(1), 43(2)). Investment powers are frozen to the law as it stood before the Trustees Amendment Act 1997 (ss.40, 44). The Auditor General Act 2006 applies fully (s.45).

Land administration intersects with the Land Administration Act 1997. Reserved lands are those proclaimed under Part 4 of that Act and s.25(1)(a) of this Act (s.26(b)). Section 41(4) permits regulations to apply provisions of the Land Administration Act 1997 with or without modification for sales to Aboriginal persons.

Public sector employment is governed by the Public Sector Management Act 1994 (s.15(1)). The Children and Community Services Act 2004, Health Legislation Administration Act 1984, School Education Act 1999, and Treasury department are all represented on the Committee (s.19(1)(c)).

The 2012 deletion of Part IV (estates) and insertion of s.52 means that pre‑2013 estates continue under the former provisions, creating a temporal split in succession law. Section 48 interacts with the Legal Profession Uniform Law (WA) by creating a statutory exception to the prohibition on unqualified representation.

Cross‑border modifications apply under the Cross-border Justice Act 2008 and regulations, altering procedural provisions in the Act’s application to certain jurisdictions (endnote 1M).

The Act repealed the Native Welfare Act 1963 (long title) and must be read with the Aboriginal Heritage Act 1972 (not directly referenced but operating in the same policy space) and native title legislation. Post-Mabo and Native Title Act 1993 (Cth) developments have layered native title claims over reserved lands without direct amendment to this Act.

The most significant recent structural change was effected by the Aboriginal Affairs Planning Authority Amendment Act 2012 (No. 38 of 2012), which deleted former Part IV (ss.33–38) dealing with the administration of estates of deceased Aboriginal persons and inserted Part VII (s.52). The savings provision ensures that estates of persons dying before the 7 August 2013 commencement day continue to be administered under the repealed rules. This change reflected a policy decision to transfer estate administration to general succession law and the Public Trustee, reducing the Authority’s workload and aligning with mainstreaming.

In 2010, the Aboriginal Housing Legislation Amendment Act 2010 (No. 6 of 2010) inserted s.33A, declaring that the Authority has always had power to grant leases over land vested under s.27 and that delegations to the Trust include that power unless expressly excluded. The provision was “to avoid doubt” and responded to conveyancing and title concerns arising from historical practice.

The Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006) replaced references to the Commissioner for Aboriginal Planning with the CEO, abolished the office of Commissioner, and made transitional arrangements (Sch. 350). It also updated financial and departmental references to reflect the Financial Management Act 2006.

The Approvals and Related Reforms (No. 3) (Crown Land) Act 2010 and Standardisation of Formatting Act 2010 made minor updates to proclamation and cross‑referencing language. The Legal Profession Uniform Law Application Act 2022 updated the representation provision in s.48 to refer to the new uniform law.

These changes reflect three policy drivers: (1) modernisation and alignment with contemporary public sector and financial legislation; (2) clarification of long‑standing land powers to facilitate leasing and housing projects; and (3) progressive transfer of functions to mainstream agencies while retaining core land protection and coordination roles. The uncommenced Petroleum Legislation Amendment Act 2024 s.433(2) will further update resources carve‑outs once proclaimed.

The Act has generated relatively little reported litigation, consistent with its administrative character and the policy of centralised control over prosecutions (s.31(2)). However, several themes emerge from related jurisprudence and administrative decisions.

First, the definition of “person of Aboriginal descent” in s.4 has been criticised for embedding a community acceptance test that can be exclusionary or difficult to prove. While not directly litigated under this Act, analogous debates in native title and heritage cases (e.g. Western Australia v Ward (2002) 213 CLR 1) illustrate the fragility of descent‑based rights when community politics or historical dislocation are involved.

Second, the trespass offence in s.31 has been controversial. Aboriginal communities have used it to exclude unwanted visitors, including journalists and researchers, while civil libertarians have questioned the breadth of the strict liability regime and the reverse onus (“unless he establishes to the satisfaction of the court”). The requirement for CEO consent to prosecute adds a layer of executive discretion that could be challenged on Wednesbury unreasonableness grounds, although no reported case has succeeded.

Third, the interaction with native title has produced practical controversy. Reserved lands vested in the Authority under s.27 are Crown land for native title purposes unless extinguished. The Act’s failure to expressly address native title has led to overlapping claim processes and negotiation burdens on the Trust. The preservation of mining and petroleum rights (s.30(2)) has been criticised by Aboriginal groups as undermining the land control purpose.

The deletion of Part IV in 2012 generated concern among families with long‑running estate matters administered under the old regime. The savings provision in s.52 was a direct legislative response to avoid disruption, but it creates a dual‑track succession system that practitioners find cumbersome.

Administrative law challenges have occasionally arisen around delegation validity and ministerial directions under s.7. The presumptions in s.47 have been relied upon in summary prosecutions but have not been constitutionally tested against Kable or Chapter III principles.

No High Court or Court of Appeal decision has comprehensively examined the Act’s validity or core provisions. Its longevity (now over 50 years) without major constitutional attack suggests it is viewed as a settled, if imperfect, part of the Western Australian Aboriginal governance landscape.

Most practitioners assume the Trust can freely deal with reserved land. In fact, s.20(3)(c) requires prior ministerial approval for any real property mortgage, charge, or demise, and proclamations under s.24 may limit delegated powers. The 2010 insertion of s.33A was necessary precisely because historical delegations were ambiguous; title insurers still routinely require statutory declarations or ministerial confirmation.

The community acceptance limb of the s.4 definition is not a mere formality. In contested probate, land claim, or membership disputes, courts have required anthropological and oral history evidence. A person accepted in one community may not be accepted in another, creating forum‑shopping risks.

Section 30(1) is wider than many realise. It applies to any application for an interest “under any Act” that would operate on reserved land. This catches tourism licences, grazing permits, and even some environmental approvals. Failure to record the Authority’s approval and conditions on the face of the document renders the grant ineffective.

The evidentiary presumptions in s.47 apply only “in the absence of proof to the contrary.” Once an accused adduces some evidence on descent or boundaries, the presumption evaporates and the prosecution must prove the element beyond reasonable doubt. This is often overlooked in plea negotiations.

Financial “mainstreaming” under s.42 is more powerful than it appears. It operates as a statutory non‑discrimination rule binding on any body funded principally from the Consolidated Account. Service providers have been successfully challenged for ring‑fencing Aboriginal‑specific programs in ways that reduce overall access.

The good‑faith immunity in s.17 extends to “purported” exercise of power. However, it does not protect against deliberate illegality or bad faith, and the onus of proving good faith rests on the defendant once the plaintiff establishes the act and damage. In practice, discovery of internal minutes showing disregard of Council advice can defeat the defence.

Finally, the Act’s regulation‑making power (s.51) has been used sparingly. Many detailed land management rules that practitioners expect to find in subordinate legislation remain in soft‑law policies or Trust resolutions. This creates uncertainty about enforceability and procedural fairness.

Compliance begins with mapping the land in question against the current schedule of reserved lands (maintained by the Department and published via proclamations in the Government Gazette). Title searches should expressly check for s.27 vesting and any customary tenure proclamations under s.32.

Any proposed dealing with reserved land requires early written consultation with the Authority (s.30(1)(b)). Written consent and all conditions must appear on the face of the granting instrument. Where the Trust has been delegated management under s.24, correspondence should be addressed to both entities and the instrument of delegation examined.

Organisations providing government‑funded services must maintain equality of access policies compliant with s.42. This requires auditing eligibility criteria that might indirectly exclude Aboriginal applicants and documenting decision‑making to demonstrate compliance.

Public authorities and contractors should establish memoranda of understanding with the Committee to satisfy coordination obligations (s.19(3)). Delegations under s.9 or s.11 must be in writing, identify the power precisely, and be revocable. Delegates should maintain separate file notes recording the basis of any opinion, belief, or state of mind required by the delegated provision.

Trust and Council members must observe the procedural rules in the First Schedule and s.18, particularly pecuniary interest disclosure. Minutes must record determinations of interest and the member’s non‑voting status (s.18(8)–(9)).

Financial compliance requires separate accounting for the two special purpose accounts, adherence to Treasurer’s directions, and annual reporting under the Financial Management Act 2006 (s.45). Investments must remain within the pre‑1997 trustee framework (ss.40, 44).

For estate practitioners, the critical compliance step is determining the date of death. If before 7 August 2013, the former Part IV rules (as saved by s.52) continue to apply, requiring consultation with the Authority even though the substantive provisions have been repealed.

In contentious matters, early engagement with the Aboriginal Advisory Council is both good practice and, for the Authority, statutorily required (s.13(2)). Where trespass enforcement is contemplated, obtain CEO written authority before commencing prosecution.

Organisations should maintain a register of all statutory bodies created under the Act and review it whenever new proclamations or delegations are published in the Gazette. Training for field staff on the four exceptions to s.31 trespass is essential to avoid wrongful arrest claims.

Finally, because the Act has been amended over five decades with deletions, insertions, and transitional provisions, always work from the latest consolidated version on the WA legislation website and cross‑check the compilation table and uncommenced provisions table. Where doubt exists about historical vesting or delegation validity, seek a certificate from the CEO under the presumption provisions or apply for declaratory relief. Compliance is not merely procedural; it requires ongoing relationship management with the four statutory bodies and recognition that the Act embodies a partnership model rather than a purely regulatory one.