Aboriginal Heritage (Fees) Regulations 2023

The Regulations directly affect anyone who needs to engage with the Aboriginal Heritage Act’s s 16 or s 18 procedures. That includes developers, miners, farmers, local councils, state government agencies, researchers, and traditional owner corporations. However, the fee burden falls disproportionately on two classes: commercial proponents and government proponents. A developer carrying on a business and proposing to investigate multiple locations for Aboriginal heritage can face fees in the tens of thousands of dollars. For example, a request covering ten proposed investigation sites would attract a fee of $256 plus 10 × $5,096 = $50,960, payable within 14 days. A government department conducting infrastructure works would pay the same. By contrast, an individual landowner acting not in the course of a business would pay only the base fee of $256, regardless of the number of sites. Small businesses and non-profit organisations also pay only the base fee. The Regulations therefore create a steeply regressive cost structure relative to business size,not based on annual turnover or profit, but on the binary classification of “carrying on a business”. A one-person consultancy could be a commercial proponent if it carries on a business, while a small mining company with 15 employees would be exempt as a small business. The demarcation between small business and commercial proponent will be critical; a mistaken classification could lead to underpayment of fees and subsequent interest and recovery action. Government proponents are also hit with per-site fees, albeit as a transfer within the public sector. The CEO’s discretion to waive or reduce fees is available to all, but is not automatic and creates uncertainty. Aboriginal and Torres Strait Islander corporations are exempt unless they are acting for profit, which adds a further layer of analysis for those bodies. All persons liable must pay within 14 days,a short window given the sums involved for multi-site proposals.

The primary duty is to pay the prescribed fee within 14 days after making the s 16 request or giving the s 18 notice. This is a strict liability obligation: there is no grace period and no de minimis exception. The amount depends on the proponent classification and the number of sites or places involved. The person liable must self-assess their category correctly. The Regulations do not require the CEO to verify the classification before payment; the duty arises automatically upon the request or notice. A person has the right to apply to the CEO for an extension of the payment period. The application must be in writing and made before the end of the 14-day payment period (reg 7(2)). However, the CEO may grant an extension after the period has expired, and if they do, the regulations are deemed to have effect as if the extension had been granted before the deadline (reg 7(3)). That deeming provision protects the applicant from late payment interest if the extension is later approved. The CEO also has a broad discretionary power to waive, reduce or refund a fee, in whole or in part, if considered appropriate on a case-by-case basis (reg 6). There is no statutory criterion for when the CEO must exercise that power; it is entirely at discretion. If a fee is reduced or waived, or an extension granted, the CEO must give written notice of the new amount or new payment period (reg 8). This ensures the person has formal documentation of the changed obligation. A person who pays late is liable for interest on the outstanding amount from the day after the payment period ends until payment, at a rate equal to the RBA cash rate target plus 3% (reg 9). Interest does not compound on interest. The CEO has the right to recover overdue fees and interest as a debt in a competent court. Crucially, the CEO may produce a certificate that specifies the amount, the person liable, and that the amount is unpaid. That certificate is, without proof of the CEO’s appointment or signature, sufficient evidence of those matters (reg 10(3)). This shifts the evidentiary burden: the defendant must rebut the certificate’s assertions, not the CEO prove them from scratch.

The Regulations do not create criminal offences for fee non-payment. Instead, the enforcement mechanism is civil: overdue fees attract interest, and the CEO may sue to recover the outstanding amount as a debt. The interest rate is set at the Reserve Bank of Australia cash rate target plus 3 percentage points, calculated from the day after the payment period ends. As at mid-2025 the cash rate is around 4.35%, making the interest rate roughly 7.35% per annum. That is not a punitive rate; it likely reflects the government’s cost of funds rather than a deterrent. Interest does not accrue on interest, so there is no compounding. The CEO’s power to issue certificates that are prima facie evidence of liability is the most potent enforcement tool. In practice, a certificate will be difficult to challenge unless the defendant can show the classification was wrong, the number of sites or places was overstated, or payment was made. The certificate system reduces the CEO’s evidentiary burden in court: no need to call witnesses to prove the CEO’s appointment or the authenticity of the signature. The debt can be recovered in any court of competent jurisdiction, which for smaller amounts could be the Magistrates Court. There is no provision for administrative penalties, infringement notices, or additional late payment fees beyond interest. The Act itself (outside these Regulations) carries criminal penalties for unauthorised harm to Aboriginal sites, but those are not dealt with here. The Regulations’ enforcement focus is purely financial: to recover the fee and interest. The CEO’s discretion to waive, reduce or refund a fee could be used to settle disputes before court action, but there is no formal review or appeal mechanism for a refusal to waive. A person aggrieved by a CEO decision would need to seek judicial review on administrative law grounds. The 14-day payment period is short, so late payment is easy to trigger inadvertently.

The Regulations sit within the broader Aboriginal Heritage Act 1972 framework. They prescribe fees for processes under s 16 and s 18 of that Act, but do not alter the substantive heritage protection provisions. The Act itself governs the circumstances in which authorisation or notice is required, and non-compliance with the Act carries its own penalties. The Regulations also incorporate definitions from other statutes. The term “business” takes its meaning from the Income Tax Assessment Act 1997 (Cth). That is a Commonwealth tax law definition, which may be interpreted differently by the Commissioner of Taxation than by a WA heritage officer. For example, a hobby or a one-off venture may or may not be a business under that definition. The incorporation of a federal definition creates potential for inconsistency and reliance on non-WA case law. “Small business” is defined by reference to the Small Business Development Corporation Act 1983 s 3(1). That provision generally defines a small business as having fewer than 20 full-time equivalent employees and meeting certain turnover thresholds, but the exact test may vary with amendments to that Act. “Aboriginal and Torres Strait Islander corporation” imports the Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006, including the “indigeneity requirement” under its s 29-5. The Regulations also interact with the Public Sector Management Act 1994 for the definition of “government proponent”. The fees themselves are payable to the Department, and the CEO’s powers of waiver and extension are administrative decisions that could be subject to review under the state’s administrative law. There is no explicit interaction with local government planning approvals, but in practice a proponent may need s 18 consent before a development can proceed, so the fee becomes a precondition. The Regulations also potentially interact with the state’s native title regime, as Aboriginal heritage approvals are often required alongside native title agreements. However, the Regulations do not create any offset or credit for fees already paid under other regimes.

The Aboriginal Heritage (Fees) Regulations 2023 originally commenced on 15 November 2023. They were made under the Aboriginal Heritage Act 1972 and came into operation on the same day as the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 section 20. The original regulations set the fee structure at $256 base fee and $5,096 per site for commercial and government proponents. The Regulations were amended by the Aboriginal Heritage (Fees) Amendment Regulations 2025 (SL 2025/107), published 25 June 2025. The amendment’s operative provisions commenced on 1 July 2025. The amending instrument amended regulations 4 and 5, which govern the fee amounts and categories. The compilation table indicates that only regulations 4 and 5 were amended; the remainder of the Regulations were not altered. The exact nature of the amendment is not specified in the provided source text, but from the structure it likely involved adjusting the fee amounts, adding the “government proponent” category to the per-site fee, or clarifying the application of the per-site multiplier. The fact that an amendment occurred within 18 months of the original commencement suggests the government found the initial fee design needed refinement, possibly in response to stakeholder feedback or to address unintended consequences. The amendment was fully in force by 1 July 2025. Anyone relying on the Regulations must check whether their fee liability arose before or after 1 July 2025, as the earlier version may have different amounts or classifications. The compilation table confirms that both the original and amending instruments are published and in force as at the compilation date.

The source text of the Regulations includes no reference to any litigation. There are no court cases mentioned, no appeal provisions, and no judicial interpretation of the fee provisions. This is not surprising for a set of regulations less than two years old at the time of compilation. However, the structure of the Regulations contains several provisions likely to generate disputes. The most obvious area is the classification of a person as a “commercial proponent” versus a “small business” or “non-profit organisation”. The definitions rely on external statutory tests, and a proponent may disagree with the Department’s characterisation. The CEO’s waiver and extension powers are discretionary and not subject to a statutory merits review; a refusal could be challenged by judicial review on grounds such as unreasonableness or procedural fairness. The evidentiary certificate under reg 10(3) may be tested in debt recovery proceedings, particularly regarding whether the certificate is conclusive or merely prima facie, and what avenues exist to challenge its accuracy. The interest calculation method (cash rate plus 3%) could also be disputed if the RBA rate changes during the period. Furthermore, the application of the per-site fee to “proposed investigation sites” under s 16 and “identified places” under s 18 may lead to arguments about what constitutes a single site or place. For example, if a s 16 request covers a large area with multiple potential locations, the Registrar or the proponent may disagree on the number of sites. The Act’s own definition of “Aboriginal site” and the s 38 register will be relevant. While no litigation history exists yet, the Regulations are likely to generate cases as the fee amounts are substantial enough to warrant legal challenge, especially for multi-site commercial projects.

Several provisions in the Regulations can trap the unwary. The most critical is the 14-day payment period. It runs from the day the s 16 request is made or the s 18 notice is given, not from the date of an invoice or notification. A proponent who submits a request on day 1 and pays on day 15 is late, even if they receive no reminder. Interest starts accruing immediately. The extension of time application must be made before the payment period ends, but the CEO can grant it after; a prudent proponent should apply early to avoid the risk of late payment if the CEO takes time to decide. The classification traps are numerous. A person carrying on a part-time consulting business could be a commercial proponent even if their project is a one-off. “Business” is defined by Commonwealth tax law, which can catch occasional profit-making activities. Conversely, a company with 19 employees and moderate turnover may qualify as a small business and pay only the base fee, but the employer must be able to prove that status. Non-profit organisations must have a constitutional prohibition on distributions; a social enterprise with a surplus that reinvests but does not distribute may not qualify. Aboriginal and Torres Strait Islander corporations must determine whether their undertaking is for profit or commercial gain; this may not be clear-cut for joint ventures or community development projects. The per-site fee applies to each “proposed investigation site” or “identified place”. At the s 16 stage, the proponent specifies the sites. There is an incentive to minimise the number of sites in the request to reduce fees, but that risks later needing to make additional requests (and paying more fees) or breaching the Act if unauthorised investigation occurs elsewhere. At the s 18 stage, the notice must specify the “identified places”. If the notice fails to list places that later turn out to be Aboriginal sites, the proponent may face enforcement under the Act. The CEO’s waiver power is completely discretionary: no criteria, no right of review. A proponent cannot rely on it as a safety valve. The interest rate is not capped, so if the cash rate rises, the interest rate rises. The certificate procedure in debt recovery means a proponent who disputes the fee must produce evidence to rebut the certificate; mere denial is insufficient.

The first step is to determine your proponent classification accurately before making any s 16 request or s 18 notice. Ask whether you are carrying on a business (as defined by Commonwealth tax law). If you are an individual landowner, a small business (meeting the Small Business Development Corporation Act thresholds), or a non-profit organisation, you pay only the base fee of $256. If you are a commercial proponent or a government proponent, you must calculate the full fee: $256 plus $5,096 for each proposed investigation site or each identified place. If you are an Aboriginal and Torres Strait Islander corporation, you need to assess whether the undertaking is for profit or commercial gain; if not, you are exempt from the fee. Once classification is clear, tally the number of sites or places. Be precise; an overly broad description could inflate the count and the fee, while an artificially narrow description could cause regulatory problems later. Pay the fee within 14 days of the request or notice. Make payment by the due date; consider electronic transfer with a reference number. If the fee is large or if the classification is uncertain, consider applying to the CEO in writing for an extension of time before the 14-day period ends. Attach supporting reasons. If the CEO grants an extension after the period, the late period is deemed not to have occurred. Alternatively, seek a waiver or reduction under reg 6. There is no prescribed form, but a written request explaining why it is appropriate (financial hardship, public benefit, etc.) should be made. Record the CEO’s written response specifying the new amount or payment period. Keep a copy of the fee payment receipt and any correspondence with the CEO. If a dispute arises about classification or the number of sites, do not simply withhold payment; pay under protest and seek a refund or judicial review. Withholding payment triggers interest and potential debt recovery with a certificate that is difficult to challenge. Monitor the cash rate if payment is late, to calculate interest. If the CEO issues a certificate for recovery, respond promptly with evidence of payment or of incorrect classification, as the certificate shifts the burden of proof. Regularly check for amendments to the Regulations; the 2025 amendment shows the government may adjust fee amounts or categories.