The Commonwealth is immune from criminal prosecution after allegedly illegally disturbing an Aboriginal sacred site at a former movie set in Kakadu National Park, a court has determined.
The Northern Territory’s Aboriginal Areas Protection Authority filed a criminal charge against the director of Parks Australia in 2020 for carrying out uncertified work at Gunlom - a cascading waterfall that appeared in the movie Crocodile Dundee.
It alleges Parks built a walking track in 2019 to Gunlom’s top pools without permission from the Indigenous custodians.
Parks agreed to remove the offending section of track and apologised to traditional owners for the distress the work caused but pleaded not guilty to the charge.
It told a full bench of the NT Supreme Court in March it cannot be prosecuted for carrying out the unauthorised work because it’s a corporate entity, and the criminal offence and penalty in section 34 of the NT’s Aboriginal Sacred Sites Act does not apply.
On Friday, the court agreed, saying the director of Parks has “the same legal status as the executive government of the Commonwealth in relation to the imposition of criminal liability” and is generally immune from prosecution.
The case was never about the walking track but rather to find out if the Parks director could be prosecuted under NT law.
Director of National Parks Jody Swirepik referred to them as “constitutional issues” saying “the case did not turn on the particular facts of the Gunlom walking track matter”.
“Irrespective of the outcome of the court case, I will continue to work with all parties in the future to ensure that there is a robust framework for protecting sacred sites,” she said in a statement.
AAPA previously alleged the track was constructed close to a restricted ceremonial feature against the wishes of the World Heritage-listed park’s traditional owners and without an authority certificate, which is issued after consultation.
Parks has since obtained a certificate and negotiated with traditional owners about the realignment of the track.
Swirepik said that remedial work was well underway with two Indigenous cultural advisers representing the Gunlom Land Trust onsite to supervise work.
“Part of the track has now been removed, and work commenced this week on the new segment of track,” she said.
“I take the concerns raised by traditional owners about the Gunlom matter very seriously, and Parks Australia has taken steps to ensure (they) are properly consulted on infrastructure work in Kakadu.”
Swirepik previously said Parks was ordered to plead not guilty by the commonwealth attorney-general so the constitutional issues could be addressed.
The maximum penalty under NT law for carrying out work on a sacred site without a certificate is $314,000.
AAPA has been contacted for comment.
