Maralinga Tjarutja Land Rights (Mamungari Conservation Park Co-management Board) Regulations 2019

Board means the Mamungari Conservation Park Co‑management Board continued under regulation 4. It is a statutory body that replaces the earlier board established under the 2004 regulations. Co‑management agreement is a separate document (not defined further in the regulations) that governs the shared management of the Park between the State and the traditional owners. The board must act consistently with it, which means the agreement’s terms effectively constrain the board’s discretion, even though those terms are not included in the regulations themselves. Park refers to the Mamungari Conservation Park, a protected area on Maralinga Tjarutja lands. Maralinga Tjarutja is the Aboriginal group recognised under the Maralinga Tjarutja Land Rights Act 1984 as the traditional owners of the area; the Council is their governing body. Pila Nguru (also called the Spinifex People) are a subset of the Western Desert people who belong to the Southern Pitjantjatjara language group; they have specific representation entitlements on the board through the Pila Nguru (Aboriginal Corporation), a Commonwealth‑incorporated entity under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The board’s composition is structured so that traditional‑owner members hold a permanent majority (five out of eight). However, if Pila Nguru withdraws from the co‑management agreement, their allocated seats revert to Council nominees, preserving the five‑to‑three ratio. The concept of traditional hunting activities is imported from section 68D of the National Parks and Wildlife Act 1972, which presumably allows traditional owners to hunt for cultural purposes; the board must report on those activities and their ecological effects. The conflict of interest regime introduces a wide definition of “associate” (spouse, domestic partner, partners, trustees, corporate relationships, and chains of relationships under any of those paragraphs - regulation 14(8)). This sweeps in many indirect interests and imposes a reverse‑onus provision for members who are unaware of an interest: they bear the burden of proving unawareness. The annual report requirement under regulation 15 goes beyond a standard financial report; it explicitly demands disclosure of public access refusals and ecological impact data, effectively making the board’s gatekeeping decisions transparent and potentially subject to public scrutiny. Immunity from liability (regulation 16) operates as a statutory shield for individual members and employees, but the board itself remains liable (and can be sued directly). The immunity does not protect bad‑faith conduct, so a member who deliberately acts outside powers or dishonestly remains personally exposed.

The regulations directly affect the eight members of the board (five traditional‑owner appointees and three departmental officers), their deputies, and any employees of the board or persons acting under delegation. The traditional‑owner community most directly affected is Maralinga Tjarutja, with the Pila Nguru community having specific representation rights that depend on their continued participation in the co‑management agreement. The Council (the governing body of Maralinga Tjarutja) must be consulted on the removal of traditional‑owner board members (except Pila Nguru appointees) and must agree to any board agreement that might affect customs or traditions. The Pila Nguru (Aboriginal Corporation) must be consulted on the removal of its nominees and must nominate those members. The Department (which administers the National Parks and Wildlife Act 1972) provides three officers as board members and likely supplies administrative support; its policy and operational priorities may conflict with those of traditional owners. The Minister responsible for the National Parks and Wildlife Act 1972 appoints all members, determines their conditions and remuneration, and can grant exemptions from conflict‑of‑interest rules by Gazette notice. The broader Maralinga Tjarutja community and other traditional owners are affected because the board’s decisions on traditional hunting, public access, and infrastructure have direct implications for their cultural practices, land use, and economic opportunities. Visitors and the general public are affected by the board’s power to grant or refuse access to the Park; rejected applicants must be reported in the annual report, which may have reputational consequences. Native plants and protected animals (especially species listed as rare, endangered, or vulnerable under the National Parks and Wildlife Act 1972) are indirectly affected because the board must monitor and report on the impact of traditional hunting activities. Any contractor, lessee, or party entering an agreement with the board (e.g. for research, tourism, or infrastructure) is affected by the board’s contractual power and the requirement that such agreements be consistent with the co‑management agreement and not affect customs without Council approval. Finally, taxpayers bear the cost of board operations, remuneration, and potential litigation (since liability shifts to the board). The regulations do not specify a budget or cap on expenses, so the fiscal burden is open‑ended.

Duties of board members. Every member must comply with the conflict‑of‑interest provisions in regulation 14. Upon becoming aware of a direct or indirect personal or pecuniary interest in a matter before the board, the member must disclose full details in writing as soon as reasonably practicable, must not take part in any discussion or vote on the matter, and must leave the meeting room during that discussion or voting. This duty extends to interests held by an associate (as defined in subregulation 8). If a member is unaware of the interest, they bear the burden of proving that unawareness in any proceedings. Non‑compliance is a ground for removal from office (regulation 14(5)) and may lead to a criminal penalty of up to $2,000, as well as court‑ordered disgorgement of any profit and compensation for loss or damage (regulation 14(6)-(7)). The board must perform its functions consistently with the co‑management agreement (regulation 10(4)) and must not enter into an agreement that may affect the customs or traditions of the traditional owners unless the Council agrees (regulation 10(5)). The board must ensure accurate minutes are kept of its meetings (regulation 13(7)). It must prepare an annual report containing the six categories of information listed in regulation 15 (traditional hunting info, ecological impacts, operations, public access refusals, infrastructure, and any other Minister‑required information). Rights of board members. Members are entitled to remuneration, allowances, and expenses as determined by the Minister (regulation 9). They serve for a term of up to four years and are eligible for reappointment (regulation 6(1)). The board has the power to do anything necessary, expedient, or incidental to the performance of its functions, including entering into any form of contract, agreement, or arrangement (regulation 10(2)-(3)). It may establish committees with advisory or executive functions, whose membership need not be drawn from board members (regulation 11). The board may delegate its functions or powers (except the delegation power itself) to a member, an employee, a committee, an employee of Maralinga Tjarutja or Pila Nguru, or a departmental officer (regulation 12). Delegations can be made subject to conditions, can be further delegated, and are revocable at will. Members and employees of the board have immunity from civil liability for acts or omissions in the exercise or purported exercise of official functions, with liability shifting to the board (regulation 16). This immunity does not apply to acts or omissions not in good faith, and the board itself retains its own rights of action. The presiding member (and deputy presiding member) is appointed by the Minister from among the traditional‑owner nominees appointed under regulation 5(1)(a)(i)(A), (1)(a)(ii), or (2)(c)(i) - ensuring that a traditional owner chairs the board.

The only express criminal penalty in the regulations is for breach of the conflict‑of‑interest duty: a maximum of $2,000 (regulation 14(1)). This is relatively modest, but the regulations provide two additional financial remedies. First, a court convicting a person of the offence may also order the convicted person to pay to the Minister an amount equal to any profit made (by the person or another) as a result of the contravention, and compensation for any loss or damage suffered (regulation 14(6)). Second, even if no proceedings are brought, the Minister may recover the same amounts (profit and compensation) by civil action in a court of competent jurisdiction (regulation 14(7)). This dual track (criminal penalty plus civil recovery) gives the Minister a powerful tool to strip gains from improper conduct without the need for a conviction. Non‑compliance with the conflict‑of‑interest duty is also a ground for removal from office (regulation 14(5)), which is a separate administrative consequence. The Minister may remove a member for breach or non‑compliance with a condition of appointment, misconduct, or failure or incapacity to carry out duties (regulation 6(2)). For traditional‑owner members, the Minister must first consult with the appropriate body: the Pila Nguru (Aboriginal Corporation) for Pila Nguru nominees, or the Council for other traditional‑owner members (regulation 6(3)). That consultation requirement does not give those bodies a veto; the Minister retains the final power to remove. The regulations do not create any other enforcement mechanisms. The board can make decisions by majority (regulation 13(3)), and the validity of acts or proceedings is not affected by a vacancy or defect in appointment (regulation 8). That provision prevents technical challenges to board decisions based on procedural irregularities in membership. There is no express provision for judicial review of board decisions, but such review would be available under general administrative law (on grounds of jurisdictional error, failure to take into account relevant considerations, etc.). The board’s immunity from liability does not protect the board itself; actions lie against the board (regulation 16(2)), so enforcement through the courts is possible against the board entity. The annual report requirements under regulation 15 are not directly penalised but are a statutory duty; failure to provide a compliant report could lead to ministerial direction or, ultimately, amendment of the regulations.

These regulations are made under the Maralinga Tjarutja Land Rights Act 1984 (the Act), which is the primary source of land rights for the Maralinga Tjarutja people. Section 15G of that Act is specifically referenced: the board’s annual report must be prepared for the purposes of that section (regulation 15). The regulations are therefore subordinate legislation that operationalises a co‑management board which the Act contemplates or permits. The board’s functions are significantly sourced from the National Parks and Wildlife Act 1972 (NPW Act). Regulation 10(1)(a) states that the board carries out functions assigned to it by or under the NPW Act. In particular, regulation 15(a)-(b) requires the annual report to contain information about traditional hunting activities “carried out in accordance with section 68D of the National Parks and Wildlife Act 1972”. That section presumably authorises traditional owners to hunt in conservation parks; the board must monitor and report on that activity and its effect on native species, especially rare, endangered, or vulnerable ones. The NPW Act also likely governs the Park’s status and management powers, and the board’s decisions must operate within that framework. The co‑management agreement (a separate instrument) is given binding force: the board must act consistently with it, and the board’s composition depends on whether Pila Nguru remains a party to it (regulation 5(2)). The regulations do not define the agreement’s contents or duration, so substantial governance constraints are located outside the text of these regulations. The definition of domestic partner uses the Family Relationships Act 1975 (SA) (regulation 3). The definition of Pila Nguru (Aboriginal Corporation) references the Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) - ensuring that the corporation is incorporated under that specific regime. The conflict‑of‑interest definition of associate uses the Corporations Act 2001 (Cth) for “related bodies corporate” (regulation 14(8)(f)). The regulations revoke the Maralinga Tjarutja Land Rights (Establishment of Co‑management Board) Regulations 2004 (Schedule 1), so the earlier board ceases and the new board continues under these regulations. The regulations do not explicitly interact with the Freedom of Information Act 1991 (SA) or the Ombudsman Act 1972 (SA), but the annual report’s disclosure of public access refusals could feed into FOI processes or Ombudsman inquiries. The board’s contractual power (regulation 10(3)) is subject to the general law of contract and any procurement policies applicable to state bodies. The immunity provision (regulation 16) modifies the general law of torts and civil liability: it does not extinguish claims but redirects them from individuals to the board, similar to provisions in other SA public‑body legislation.

The regulations were made on 18 July 2019, published in the South Australian Government Gazette on that date (No. 191, page 2765), and commenced on that same day (regulation 2). They replaced the earlier Maralinga Tjarutja Land Rights (Establishment of Co‑management Board) Regulations 2004, which were revoked in full by Schedule 1. The legislative history note at the end of the document does not record any subsequent amendments. Given that the regulations are relatively recent and that the 2004 regulations they replaced lasted fifteen years, it is likely that these regulations will remain in force for a similar period unless the co‑management agreement or the underlying Act is amended. Any future changes could be made by further regulations under the Act, or by amendments to the NPW Act that alter the board’s functions. The regulations themselves contain a built‑in flexibility for the Minister to grant exemptions from conflict‑of‑interest provisions by Gazette notice (regulation 14(4)), which could effectively amend the application of that provision without changing the regulation text. The composition provisions also automatically adjust if Pila Nguru withdraws from the co‑management agreement (regulation 5(2)). This means the regulations have an adaptive mechanism that does not require formal amendment. However, substantive changes (e.g. altering quorum, delegation powers, or annual report contents) would require amending regulations published in the Gazette.

The source text contains no references to any litigation arising under these regulations. Given that they have been in force only since mid‑2019 and govern a specific, geographically limited conservation park with a small board membership, public litigation is likely rare. However, several latent sources of dispute exist. The conflict‑of‑interest provisions could lead to proceedings if a member is prosecuted or if the Minister seeks civil recovery of profits. The reverse‑onus provision (the member must prove unawareness) may be challenged under principles of criminal procedure if a prosecution is brought - the $2,000 penalty is criminal, so the burden of proof on the accused for an element of the defence may raise issues under the common law presumption of innocence or statutory construction. The immunity provision (regulation 16) may be tested if a third party alleges bad faith and sues a member personally; the board could also be sued directly. Decisions to refuse public access to the Park (which must be reported under regulation 15(d)) could give rise to judicial review applications if applicants argue the board took into account irrelevant considerations or acted unreasonably. The requirement that the board must not affect customs or traditions without Council agreement (regulation 10(5)) could be the basis for an injunction if the board enters an agreement without that consent. The quorum requirement (at least three traditional owner members and at least one departmental officer - regulation 13(1)) might be litigated if a decision is made without proper composition; though regulation 8 saves decisions from invalidity due to a vacancy or defect in appointment, it does not save a decision made without a quorum, so that remains a possible ground of challenge. No reported cases in open sources (as of the drafting of this analysis) mention these regulations, but practitioners should monitor the South Australian Supreme Court and the Administrative and Disciplinary Division of the District Court for any challenges.

Several provisions in these regulations contain traps for the unwary. Conflict of interest reach is exceptionally broad. The definition of “associate” (regulation 14(8)) is a cascade that includes partners, spouses, domestic partners, parents, children, trustees and beneficiaries, directors and members of a body corporate, 5%+ shareholders, related bodies corporate, and any chain of such relationships. This means a board member who is a director of a company that holds shares in a firm tendering for a contract with the Park could have a notifiable interest. The member must disclose and abstain even if the connection is indirect. The reverse‑onus provision for unawareness means a member who claims not to have known of an interest must prove that, not the prosecution. Exemption only via Gazette. If a member wants relief from the conflict rules, they cannot simply ask the board; the Minister must publish a notice in the Gazette (regulation 14(4)). That is a cumbersome process and likely used only rarely. No personal liability but board liability. The immunity (regulation 16) protects individual members and employees, but the board itself is liable. If the board has limited assets or no insurance, claimants may find it difficult to recover. Note also that the immunity does not cover bad faith; a member who acts maliciously or beyond powers retains personal exposure. Quorum traps. A quorum requires five members, including at least three traditional‑owner members and at least one departmental officer (regulation 13(1)). If a meeting has five members but only two traditional‑owner members (e.g. due to absences), the meeting is invalid. Similarly, if only departmental officers attend, no decisions can be made. The board cannot proceed with decisions until proper composition is restored. Annual report requires disclosure of refused access applications. This transparency measure means every refusal is recorded and reported. Applicants who are refused may learn why from the report, and the media or interest groups can scrutinise the board’s gatekeeping decisions. This could chill the board’s willingness to refuse access even where justified, for fear of public criticism. Co‑management agreement is not defined. The board must act consistently with a document that is not reproduced in the regulations. New members or third parties must locate and understand that agreement; any inconsistency between board decisions and the agreement could render the decision ultra vires. Removal of traditional‑owner members requires only consultation, not consent. The Minister must consult with the Council or Pila Nguru but is not bound by their views (regulation 6(3)). So a traditional‑owner member can be removed over the objections of their community - though the political consequences may be severe. Delegation to non‑members is broad. The board can delegate functions to employees of Maralinga Tjarutja or Pila Nguru (regulation 12(1)(c)) - i.e. to persons who are not board members and not public servants. Those delegates may have limited familiarity with statutory duties, creating compliance risk. And sub‑delegation is expressly allowed (regulation 12(2)(c)), so the delegate can further delegate, potentially diluting accountability. Gender balance is aspirational, not mandatory. Regulation 5(3) says nominations and appointments “should” achieve gender balance “as far as reasonably practicable”. This is not enforceable, so a board could have no women without breaching the law. Minister determines remuneration with no criteria. The only requirement is that it is “determined by the Minister” (regulation 9). No factors are specified, so remuneration could be set very low (discouraging participation) or very high (imposing significant cost). There is no appeal mechanism. No express dispute resolution within the board. The regulations do not provide mechanisms for resolving deadlocks (other than the presiding member’s casting vote - regulation 13(4)). If the board is split on a matter, the chair’s vote decides, but there is no provision for mediation, arbitration, or escalation to the Minister. This could lead to governance paralysis.

For individual board members. Upon appointment, read these regulations, the co‑management agreement, and any relevant provisions of the Maralinga Tjarutja Land Rights Act 1984 and the National Parks and Wildlife Act 1972. Immediately before each meeting, review the agenda and identify any matter in which you or an associate has a direct or indirect personal or pecuniary interest. If such an interest exists, prepare a written disclosure (full and accurate details) and deliver it to the board secretary as soon as possible - ideally before the meeting. At the meeting, declare the interest orally, do not participate in discussion, do not vote, and leave the room during that item. Keep a record of all disclosures. Retain a copy of the disclosure and any written acknowledgment from the board. If you are unsure whether an interest is notifiable, err on the side of disclosure and seek advice from the board secretariat or the Minister’s office. The burden of proving unawareness falls on you, so document the steps you took to identify interests. Ensure you remain qualified for your position (e.g. that you are still a member of Maralinga Tjarutja, or still a Pila Nguru nominee, as applicable). Attend meetings regularly to maintain quorum. If you cannot attend, inform the presiding member in advance, and consider arranging for your deputy (if appointed) to attend. For the presiding member. You must be appointed by the Minister from among the traditional‑owner board members. Your key duties: chair meetings, ensure accurate minutes are kept (you may delegate to a secretary), ensure the board complies with its quorum requirements, and cast a deciding vote if votes are tied. You have no special powers beyond the chair; decisions are made by majority. Ensure that all members are aware of their conflict‑of‑interest obligations and that disclosures are read and minuted. For the board as a whole. Establish procedures under regulation 13(8), including how notice of meetings is given, how electronic meetings are conducted, and how written resolutions are circulated. Set up a minute‑keeping system that captures all decisions, votes, and conflict disclosures. At the beginning of each meeting, confirm that a quorum exists (five members, at least three traditional‑owner members, at least one departmental officer). If the quorum is not met, the meeting cannot validly transact business; either adjourn or attempt to secure attendance via electronic means under regulation 13(5). When making decisions, record the vote count. Follow the co‑management agreement scrupulously; if there is any doubt about consistency, obtain legal advice before proceeding. Before entering into any agreement, consider whether it may affect the customs or traditions of traditional owners; if so, obtain the prior written agreement of the Council. Create a delegation register; any delegation must be in writing, signed by the board, and specify any conditions or limitations. Keep a copy of all delegation instruments. The board must also produce an annual report under regulation 15. This report must include information on traditional hunting activities in the Park under section 68D of the NPW Act and their effect on native plants and protected animals (especially rare, endangered, or vulnerable species). The board should establish a system for collecting data on hunting activity (e.g. permits issued, species taken, locations). Also collect information on all applications for public access, and in particular record any that were refused, with reasons. Compile details of operations, work programs undertaken by or on behalf of the board, and park infrastructure. The report must be submitted to the Minister (presumably for the purposes of section 15G of the Act). The board should also ensure it has the resources to prepare this report; if the Department provides secretariat support, that should be formalised. For the Minister. When appointing members, ensure nominations are received from the Council and, where applicable, from the Pila Nguru (Aboriginal Corporation). Appoint a presiding member and deputy from among the traditional‑owner nominees. Determine remuneration, allowances, and expenses by written instrument; there is no prescribed formula, but consistency with other similar bodies would be prudent. If you receive a request for an exemption from conflict‑of‑interest rules, consider whether it is in the public interest; if granted, publish a notice in the Gazette. Monitor the board’s annual report for compliance and address any deficiencies.