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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Aboriginal and Torres
Strait Islander Heritage Protection Bill
1998
No. ,
1998
(Prime Minister)
A
Bill for an Act for the protection of areas and objects of particular
significance to Aboriginal Peoples and Torres Strait Islanders, and for related
purposes
9804920—1,197/1.4.1998—(49/98)
Cat. No. 97 2897 X ISBN 0644 519622
Contents
Archives Act
1983 0644519622.html
Freedom of Information Act 1982 0644519622.html
A Bill for an Act for the protection of areas and objects
of particular significance to Aboriginal Peoples and Torres Strait Islanders,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Aboriginal and Torres Strait Islander
Heritage Protection Act 1998.
(1) Sections 1 and 2 commence on the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), the other provisions of this Act commence
on a day or days to be fixed by Proclamation.
(3) If a provision of this Act referred to in subsection (2) does not
commence within 6 months after the day on which this Act receives the Royal
Assent, it commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
The main object of this Act is to establish procedures relating
to:
(a) the preservation and protection from injury or desecration of certain
significant indigenous areas, and of certain significant indigenous objects,
that are situated in Australia or Australian waters; and
(b) the accreditation of the laws in force in States and self-governing
Territories as accredited heritage protection regimes in respect of a particular
matter or matters.
(1) In this Act, unless the contrary intention appears:
Aboriginal peoples means peoples of the Aboriginal race of
Australia.
accredited heritage protection regime, in relation to a State
or self-governing Territory and in relation to a particular matter or matters,
means the laws in force in that State or Territory in respect of which a
declaration by the Minister under section 25 is in force in relation to the
matter or matters.
applicant means an indigenous person, or a group of such
persons, by whom, or on whose behalf, an application is made.
application means an application made under section 29 for an
LPO.
AR application means an application for an LPO made in
respect of an area, or an object, in relation to the protection of which there
is an accredited heritage protection regime in force.
area means an area of land, an area of water, an area of land
beneath an area of water or any combination of such areas.
Australia includes the external Territories.
Australian waters means:
(a) the coastal sea of Australia; and
(b) the coastal sea of each external Territory; and
(c) any waters over which Australia asserts sovereignty under the Seas
and Submerged Lands Act 1973.
coastal sea has the meaning given by subsection 15B(4) of the
Acts Interpretation Act 1901.
Commonwealth Minister means the Minister responsible for the
administration of this Act.
core parties or core party has the meaning
given by subsection 48(2).
Director means the person holding office from time to time as
Director of Indigenous Heritage Protection and includes any person acting in
that office.
emergency protection order or EPO means an
order made under section 62.
finding, in relation to a State or Territory, or to an
authority of a State or Territory, has the meaning given by subsection
(3).
indigenous human remains means the whole or part of the
bodily remains of an indigenous person, but does not include:
(a) a body or the remains of a body:
(i) buried in accordance with the law of a State or Territory;
or
(ii) buried in land that is, in accordance with indigenous tradition, used
or recognised as a burial ground; or
(b) an object made from human hair or from any other bodily material that
is not readily recognisable as being bodily material; or
(c) a body or the remains of a body dealt with or to be dealt with in
accordance with a law of a State or Territory relating to medical treatment or
post-mortem examinations.
indigenous person means a person who is a member of one of
the Aboriginal peoples of Australia or a Torres Strait Islander.
indigenous tradition means the body of traditions,
observances, customs and beliefs of indigenous persons generally or of a
particular community or group of indigenous persons, and includes any such
traditions, observances, customs or beliefs relating to particular persons,
areas, objects or relationships.
interim protection order or IPO means an order
made under section 63.
jurisdictional limits means:
(a) in relation to a State—the area within:
(i) the limits of the State; or
(ii) the coastal waters of the State (within the meaning of the Coastal
Waters (State Powers) Act 1980); or
(b) in relation to the Australian Capital Territory—the areas within
the limits of that Territory; or
(c) in relation to the Northern Territory—the area within:
(i) the limits of the Territory; or
(ii) the coastal waters of the Territory (within the meaning of the
Coastal Waters (Northern Territory Powers) Act 1980); or
(d) in relation to Norfolk Island—the area within the limits of the
Territory.
long-term protection order or LPO means an
order made by the Minister under section 38 or 45.
overlapping area, in relation to an area that is the subject
of an original application, has the meaning given by subsection (5).
protection order means:
(a) an emergency protection order; or
(b) an interim protection order; or
(c) a long-term protection order;
made under this Act.
Register means the Register of Claims for Protection
established under section 22.
responsible Minister means:
(a) in relation to a State:
(i) if there is no nomination under subparagraph (ii)—the Premier of
the State; or
(ii) the Minister of the Crown of the State nominated in writing to the
Commonwealth Minister by the Premier of that State for the purposes of this
definition; and
(b) in relation to the Australian Capital Territory, the Northern
Territory or Norfolk Island:
(i) if there is no nomination under subparagraph (ii)—the Chief
Minister of the Territory; or
(ii) a Minister of the Territory nominated in writing to the Commonwealth
Minister by the Chief Minister of that Territory for the purposes of this
definition.
significant indigenous area means:
(a) an area of land situated in Australia or situated in or beneath water
in Australia or Australian waters; or
(b) an area of water in Australia; or
(c) an area of Australian waters;
being an area of particular significance to indigenous persons in
accordance with indigenous tradition.
significant indigenous object means an object (including
indigenous human remains), situated in Australia or in Australian waters, that
is of particular significance to indigenous persons in accordance with
indigenous tradition.
Torres Strait Islander means a descendant of an indigenous
inhabitant of the Torres Strait Islands.
UR application means an application for an LPO made in
respect of an area, or an object, in relation to the protection of which there
is no accredited heritage protection regime in force.
(2) In this Act:
(a) a reference to an area or place situated in Australia or Australian
waters includes a reference to an area of water in Australia, an area of
Australian waters, or an area of land situated in or beneath water in Australia
or Australian waters; and
(b) a reference to an area situated within the jurisdictional limits of a
State or Territory includes a reference to an area of water inside those limits,
an area of Australian waters inside those limits or an area of land situated in
or beneath water in Australia, or Australian waters, inside those
limits.
(3) In this Act, a reference to a finding of a State or Territory, or of
an authority of a State or Territory, as to a particular matter includes a
reference to an acceptance, or a rejection, by that State or Territory or by
that authority, of an assertion as to that matter.
(4) In this Act:
(a) a reference to an object (whether or not comprising indigenous human
remains) situated in Australia or Australian waters includes a reference to an
object beneath water in Australia or beneath Australian waters; and
(b) a reference to an object (whether or not comprising indigenous human
remains) situated within the jurisdictional limits of a State or Territory
includes a reference to an object beneath water in Australia, or beneath
Australian waters, inside those limits.
(5) In this Act, a reference to an overlapping area, in relation to an
area that is the subject of an original application, means an area that is
included within, or that includes, or that partially overlaps, the area to which
the original application relates.
(6) For the purposes of this Act, an area or object is taken to be injured
or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with indigenous
tradition; or
(ii) by reason of anything done in, on or near the area, the use or
significance of the area in accordance with indigenous tradition is adversely
affected; or
(iii) passage through or over, or entry upon, the area by any person
occurs in a manner inconsistent with indigenous tradition; or
(b) in the case of an object—it is used or treated in a manner
inconsistent with indigenous tradition;
and references in this Act to injury or desecration shall be construed
accordingly.
(7) For the purposes of this Act, an area or object is taken to be under
threat of injury or desecration if it is, or is likely to be, injured or
desecrated.
This Act extends to each external Territory, to the coastal sea of
Australia and of each external Territory and to any waters over which Australia
asserts sovereign right under the Seas and Submerged Lands Act
1973.
This Act binds the Crown in each capacity.
This Act applies, according to its tenor, to all persons, and to all
vessels, whether or not they are within Australia or Australian
waters.
There is established by this Act a Director of Indigenous Heritage
Protection.
The Director has the following functions:
(a) to advise the Minister in relation to the accreditation of the laws of
a State or self-governing Territory as an accredited heritage protection regime
in relation to a particular matter or matters;
(b) to receive, and accept or reject, applications for protection of areas
or objects in Australia or in Australian waters;
(c) to establish and maintain a register in which applications for
protection, and the outcomes of those applications, are recorded;
(d) to take appropriate action, as required under this Act, in relation to
indigenous human remains that are reported or delivered to the
Director;
(e) as required under this Act, to facilitate negotiation or mediation
between applicants for protection and other affected persons;
(f) as required under this Act, to assess the significance of, or threat
to, areas and objects in respect of which an application for protection has been
received;
(g) as required under this Act, to report to the Minister on the
assessments referred to in paragraph (f) and on the effect that the making of a
protection order may have on other interests;
(h) to do any other thing for which this Act or any other Act
provides.
(1) The Director is to be appointed by the Minister on such terms and
conditions, subject to this Act, as are specified in the instrument of
appointment. The Director may be appointed on a full-time basis or a part-time
basis.
(2) If the Director is appointed on a part-time basis, he or she may not
engage in any paid employment that, in the opinion of the Minister, conflicts
with the proper performance of the Director’s functions.
Subject to sections 17 and 18, the Director holds office for such period,
not exceeding 5 years, as is specified in the instrument of appointment, but is
eligible for re-appointment.
(1) The Director is to be paid such remuneration as is determined by the
Remuneration Tribunal.
(2) If no determination of that remuneration by the Remuneration Tribunal
is in operation, the Director is to be paid such remuneration as is determined,
in writing, by the Minister.
(3) The Director is to be paid such allowances as are determined, in
writing, by the Minister.
(4) A determination by the Minister for the purposes of subsection (2) or
(3) is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(5) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) Subject to section 87E of the Public Service Act 1922, the
Director is to have such recreation leave entitlements as are determined by the
Remuneration Tribunal.
(2) The Minister may grant the Director leave of absence (other than
recreation leave) on such terms and conditions, as to remuneration or otherwise,
as the Minister determines in writing.
(1) The Minister may appoint a person to act as the Director:
(a) during a vacancy in the office of Director; or
(b) during any period, or during all periods, when the Director is absent
from duty or from Australia or is, for any reason, unable to perform the duties
of the office;
but a person appointed to act during a vacancy must not continue so to act
for more than 12 months.
(2) Anything done by or in relation to a person purporting to act under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The Director must make a written disclosure to the Minister
of:
(a) the Director’s financial interests; and
(b) the financial interests of the Director’s immediate
family;
equivalent to the disclosure of financial interests required to be made by
officers of the Australian Public Service who are members of the Senior
Executive Service.
(2) The Director must make a disclosure under subsection (1) within one
month after being appointed as Director.
(3) The Director must from time to time make such further disclosures as
are necessary to ensure that the information available to the Minister about the
financial interests of the Director, and of the members of the Director’s
immediate family, is up-to-date.
The Director may resign by writing signed by him or her and sent to the
Minister.
The Minister may terminate the appointment of the Director because of
incompetence, misbehaviour or physical or mental incapacity, or if the
Director:
(a) is absent from duty, except on leave granted under section 14, for 14
consecutive days or for 28 days in any period of 12 months; or
(b) becomes bankrupt; or
(c) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(d) compounds with his or her creditors; or
(e) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(f) fails, without reasonable excuse, to comply with section 16;
or
(g) engages in paid employment outside the duties of the office of
Director without the written consent of the Minister.
The Director is not personally liable to an action or other proceeding
for damages in relation to anything done or omitted to be done in good faith by
the Director in the capacity of Director.
The staff required to assist the Director in the performance of his or
her functions are to be appointed or employed under the Public Service Act
1922.
(1) The Director may engage persons having suitable qualifications and
experience as consultants.
(2) The terms and conditions of engagement are to be determined by the
Director.
(3) If:
(a) a person is engaged as a consultant under subsection (1);
and
(b) the Director determines, as part of the terms and conditions of the
engagement of that person, that this subsection applies to the person;
the person is not personally liable to an action or other proceeding for
damages in relation to anything done or omitted to be done in good faith by the
person in the capacity of such a consultant.
(1) There is established by this section a register to be known as the
Register of Claims for Protection.
(2) The Register is to be maintained by the Director.
(3) The Register may be kept by the use of a computer.
The Director must ensure that the public has reasonable access to the
Register for the purpose of inspection.
The responsible Minister of a State or self-governing Territory may apply
in writing to the Commonwealth Minister for the accreditation of the laws of
that State or Territory as an accredited heritage protection regime in relation
to one or more of the following matters:
(a) the protection of areas situated within the jurisdictional limits of
that State or Territory;
(b) the protection of objects (including indigenous human remains)
situated within those jurisdictional limits;
(c) the reporting of indigenous human remains situated within those
jurisdictional limits.
(1) If the Commonwealth Minister, on receiving an application for
accreditation, is satisfied that the laws of the State or self-governing
Territory to which the application relates meet the minimum standards for one or
more of the following matters:
(a) the protection of areas situated within the jurisdictional limits of
that State or Territory;
(b) the protection of objects (including indigenous human remains)
situated within those jurisdictional limits;
(c) the reporting of indigenous human remains situated within those
jurisdictional limits;
the Minister must, by notice in writing, declare those laws to constitute
an accredited heritage protection regime in relation to the matter or
matters.
(2) Before making a declaration under subsection (1), the Minister may, if
the Minister thinks it necessary, seek further particulars from the responsible
Minister as to the nature of the laws in respect of which accreditation has been
sought.
(3) In determining whether the laws of a State or self-governing Territory
meet the minimum standards required for accreditation, the Minister may seek the
advice of the Director and of any other person or body that the Minister
considers appropriate.
(1) Subject to subsection (2), the following are minimum standards for the
accreditation of the laws in force in a State or self-governing Territory in
relation to the matters referred to in paragraphs 24(a), (b) and (c):
(a) that those laws provide for the protection of areas and objects that
are significant to indigenous persons in terms of their indigenous
traditions;
(b) that those laws recognise that indigenous persons are the primary
source of information about the significance of areas and objects referred to in
paragraph (a);
(c) that those laws provide an option for persons to obtain advance
approval of an activity in relation to an area taking into account indigenous
heritage issues;
(d) that those laws promote negotiated outcomes between indigenous persons
and others whose activities might threaten areas or objects significant to those
indigenous persons;
(e) that those laws provide protection for culturally sensitive
information disclosed in the course of administering heritage protection
legislation;
(f) that those laws ensure that, subject to paragraph (e), interested
parties are treated fairly and given an opportunity to put their views and
obtain reasons for decisions on the grant or removal of protection referred to
in paragraph (a);
(g) that those laws provide effective deterrents to injury or desecration
of areas referred to in paragraph (a) or injury, desecration or illegal removal
of objects so referred to through appropriate offences and penalties;
(h) that those laws provide for the reporting of findings of
indigenous human remains.
Note: The minimum standards include a number of terms
defined, and concepts explained, in section 5.
(2) To avoid doubt, and for the purposes of this Part:
(a) the minimum standards as described in paragraphs (1)(a) to (g)
(inclusive) are the minimum standards for accreditation in relation to the
protection of areas situated within the jurisdictional limits of the State or
Territory concerned; and
(b) the minimum standards as described in paragraphs (1)(a), (b), (d),
(e), (f) and (g) are the minimum standards for accreditation in relation to the
protection of objects (including indigenous human remains) situated within the
jurisdictional limits of the State or Territory concerned; and
(c) the minimum standard described in paragraph (1)(h) is the minimum
standard for accreditation in relation to the reporting of findings of
indigenous human remains situated within the jurisdictional limits of the State
or Territory concerned.
Notification of failure to meet minimum standards
(1) If:
(a) the laws in force in a State or Territory have been declared to be an
accredited heritage protection regime in relation to one or more of the
following matters (the accredited matter or accredited
matters):
(i) the protection of areas situated within the jurisdictional limits of
that State or Territory; or
(ii) the protection of objects (including indigenous human remains)
situated within those jurisdictional limits; or
(iii) the reporting of findings of indigenous human remains situated
within those jurisdictional limits; and
(b) the Commonwealth Minister is of the view that the laws as in force in
that State or Territory cease to meet the minimum standards in their application
to the accredited matter or one or more of the accredited matters;
the Commonwealth Minister must, by notice in writing, advise the
responsible Minister for that State or Territory that he or she is of that
view.
Revoking and varying accreditation
(2) If:
(a) a notice has been given under subsection (1) in respect of a matter or
matters (notified matter or notified matters);
and
(b) at the end of 90 days after the giving of the notice, or such longer
period as the Commonwealth Minister allows, the Commonwealth Minister:
(i) has considered any response provided by the responsible Minister of
the relevant State or Territory; and
(ii) is satisfied that the laws in force in that State or Territory do not
meet the minimum standards in their application to the notified matter or one or
more of the notified matters;
the Commonwealth Minister must, in writing, revoke or vary (as the case
requires) the accreditation so that it ceases to have effect in relation to the
notified matter or matters in relation to which the Minister is so
satisfied.
Despite the application of the laws of a State or self-governing
Territory in the Jervis Bay Territory or in an external Territory as laws of the
Commonwealth, the Jervis Bay Territory or that external Territory is not to be
treated, for the purposes of this Act, as a part of Australia in which an
accredited protection regime is in force in respect of any matter or
matters.
(1) The Commonwealth Minister may grant a long-term protection order
(LPO) in respect of an area or object situated in Australia or in
Australian waters on the application of:
(a) an indigenous person; or
(b) a person or body acting on behalf of, and with the authority of, an
indigenous person;
who claims that the area or object:
(c) is a significant indigenous area or a significant indigenous object in
relation to the indigenous person; and
(d) is under threat of injury or desecration.
(2) An application:
(a) must be in writing; and
(b) must be lodged with the Director.
(3) Without limiting the matters to be dealt with by an application, it
must contain the following particulars:
(a) the identity of the applicant;
(b) the date of the application;
(c) an identification of the area or object for which protection is
sought;
(d) a description of the significance of the area or object to the
applicant;
(e) a description of the activity that threatens the area or object,
including a description of the kind of injury or desecration that would occur if
the activity took place;
(f) a description of the form of protection sought.
(4) An application may be withdrawn at any time.
(1) The Director must, as soon as practicable after receipt of an
application:
(a) enter particulars of the application on the Register; and
(b) notify the Minister of its receipt.
(2) The Director must ensure that, in relation to any application
received, the particulars of the application entered on the Register
include:
(a) the identity of the applicant, either specifically or in general
terms; and
(b) the date of the application; and
(c) a reasonable identification of the area or object for which protection
is sought; and
(d) a description, in general terms, of the significance of the area or
object to the applicant; and
(e) a description, in general terms, of the activity that threatens the
area or object, including a description of the kind of injury or desecration
that would occur if the activity took place; and
(f) a description of the form of protection that is sought.
(3) For the purpose of subsection (2), if the identity of the applicant is
specified only in general terms, the Register should indicate a means by which
more detailed information concerning the identity of the applicant may be
obtained.
(4) Despite subsection (2), the Register must not contain any information
that the Director considers to be of a confidential nature.
(5) If information is not included in the Register because of subsection
(4), the Director must, without disclosing the information, state in the
Register:
(a) the fact that the information is not included; and
(b) the reasons for the Director’s decision not to disclose the
information.
(1) If the Director is satisfied that an applicant has not exhausted the
remedies available under the laws of the State or Territory within whose
jurisdictional limits the area or object is situated, the Director must reject
the application.
(2) The Director may, by notice in writing, request an applicant to supply
further information in relation to the application concerned before the end of
the period specified by the Director in the request.
(3) If an applicant refuses or fails to comply with a request under
subsection (2), the application may be rejected at the end of the period for
supply of that further information.
(4) If the Director rejects an application, the Director must:
(a) state the fact of the rejection and the reasons for the rejection in
the Register; and
(b) notify the applicant and the Minister that the application has been
rejected and of the reasons for its rejection.
(1) The Minister may, at any time after an application has been received
and before it is finally disposed of, reject the application if the Minister is
satisfied that the application is vexatious or frivolous.
(2) The rejection has the effect of terminating all proceedings in
relation to that application under this Act.
(3) The Minister must:
(a) state the fact of the rejection and the reasons for the rejection in
the Register; and
(b) notify the applicant that the application has been rejected and the
reasons for its rejection.
(4) If the Minister delegates the power under subsection (1) to the
Director, the Director must, on rejecting an application as vexatious or
frivolous:
(a) comply with subsection (3); and
(b) notify the Minister that the application has been rejected and of the
reasons for its rejection.
(1) If:
(a) the Director receives an application (the original
application) relating to an area or object that is claimed to be under
threat of injury or desecration because of a particular activity; and
(b) the Director decides not to reject the original application under
section 31; and
(c) before the making of that decision, the original application has not
been rejected under section 32 as vexatious or frivolous;
the Director must, by notice published in a newspaper circulating in the
region where the area or object is situated:
(d) inform persons of particulars of the application in accordance with
subsection (3); and
(e) invite any other indigenous person who claims that the area (or an
overlapping area) or object:
(i) is a significant indigenous area or a significant indigenous object in
relation to that other indigenous person; and
(ii) is under threat of injury or desecration from the same
activity;
to lodge an application with the Director within 30 days after
publication of that notice.
(2) If an application is not lodged by or on behalf of an indigenous
person with the Director in relation to the area or object to which the original
application relates, or an area that overlaps with that area, within the period
referred to in subsection (1), an application by or on behalf of that person in
relation to that area, overlapping area, or object and that threat cannot be
made under this Act.
(3) A notice published in accordance with subsection (1) should contain
the same particulars in relation to the original application as are required,
under subsection 30(2), to be entered in the Register.
(4) For the purposes of subsection (3), if the identity of the applicant
in the original application is specified in the notice only in general terms,
the notice should indicate a means by which more detailed information concerning
the identity of the applicant may be obtained.
(5) Despite subsection (3), the notice must not contain any information
relating to the original application that the Director considers to be of a
confidential nature.
(6) If information is not included in the notice because of subsection
(5), the Director must, without disclosing the information, state in the
notice:
(a) the fact that the information is not so included; and
(b) the reasons for the Director’s decision not to disclose the
information.
If the Director decides not to reject a UR application under section 31,
the Director must attempt, by the use of negotiation or mediation processes in
accordance with Division 5, to facilitate an agreed outcome in relation to the
area or object to which the application relates.
(1) This section applies if the Director has given a notification under
section 53, in relation to a UR application, to the effect that formal
negotiation and mediation processes are no longer available.
(2) If this section applies, the Director must make a report to the
Minister, in accordance with Division 6, in respect of that
application.
(3) The Director’s report must:
(a) contain a finding as to whether or not the area or object concerned is
a significant indigenous area or a significant indigenous object in relation to
the applicant; and
(b) contain a finding as to whether or not the area or object concerned is
subject to the threat of injury or desecration; and
(c) outline the processes involved in reaching the findings referred to in
paragraphs (a) and (b); and
(d) advise the Minister on the effect that the making of an LPO would have
on the proprietary and pecuniary interests of persons other than the applicant
and provide a summary of the representations made in respect of that matter;
and
(e) advise the Minister of any other matters considered by the Director to
be relevant to the claim for protection.
If:
(a) the Minister is not satisfied that the process outlined in the
Director’s report for reaching a finding as to a matter referred to in
paragraph 35(3)(a) or (b) in relation to the area or object concerned is
adequate; or
(b) the Minister becomes aware that, subsequent to the making of the
report, new information has emerged in relation to a matter so referred to that
was not available to the Director;
the Minister may appoint an independent reviewer to make a further report,
in accordance with Division 6, in relation to that matter.
(1) If the Minister does not appoint an independent reviewer to make a
further report as to a matter referred to in paragraph 35(3)(a) or (b), the
Minister is bound by the finding of the Director as to that matter as set out in
the Director’s report.
(2) If the Minister does appoint an independent reviewer to make a further
report as to a matter referred to in paragraph 35(3)(a) or (b), the Minister is
bound by the findings of the reviewer as to that matter as set out in the
reviewer’s report.
If, in relation to a UR application, the Minister is bound:
(a) by a finding that the area or object concerned is a significant
indigenous area or a significant indigenous object in relation to the applicant;
and
(b) by a finding that the area or object is under threat of injury or
desecration;
the Minister may, after having regard to the report of the Director, the
report (if any) of an independent reviewer and any other matters that the
Minister considers relevant, make such an order in respect of the area or
object.
Note: Division 4 deals with the matters to be covered by an
LPO and the provisions for notification and effect of such an
order.
(1) If the Director decides not to reject an AR application under section
31, the Director must forthwith refer that application to the Minister for
decision whether or not to make an LPO on the basis of national interest in the
circumstances set out in section 45.
(2) If, on receipt of an application from the Director, the Minister is
satisfied that, even were it to be established that the area or object concerned
is a significant indigenous area or object and is under threat of injury or
desecration, there is, on the face of the application, no indication that making
an LPO would be in the national interest, the Minister may reject the
application and notify the applicant accordingly.
(3) The Minister must not make an LPO in respect of the area or object to
which an AR application relates before the Minister has consulted with the
responsible Minister of the State or Territory within whose jurisdictional
limits that area or object is situated in relation to:
(a) any finding by the State or Territory or by an authority of the State
or Territory as to whether or not the area or object is, in accordance with
indigenous tradition, significant to the applicant and the procedures followed
in reaching that finding; and
(b) any finding by the State or Territory or by an authority of the State
or Territory as to whether or not the area or object is under threat of injury
or desecration and the procedures followed in reaching that finding;
and
(c) any information in the possession of the State or Territory, or of any
authority of the State or Territory, concerning any proprietary or pecuniary
interests in the area or object that are likely to be affected by the grant of
such an order; and
(d) any views of the State or Territory concerning the consequences of
making the order sought.
(4) Subsection (3) does not imply that the Minister may not have regard to
any other information from any source that is likely to be relevant to the
Minister’s consideration of the application.
(1) If the Minister, after examining, on the basis of the consultation
referred to in subsection 39(3), the procedures followed by the State or
Territory, or an authority of the State or Territory, in making a
finding:
(a) that the area or object concerned is, or is not, in accordance with
indigenous tradition, significant to the applicant; or
(b) that the area or object concerned is, or is not, under threat of
injury or desecration;
is satisfied that the procedures followed were sufficient to provide a
reliable basis for the finding, the Minister may elect, in writing, to treat
that finding as being conclusive.
(2) If the Minister elects, under this section, to treat a finding as
being conclusive of a matter, the Minister is bound by that finding.
(1) If, in relation to an AR application, the Minister thinks it
appropriate, the Minister may, subject to section 42, require the Director to
make a report, in accordance with Division 6, concerning all or any of the
following issues, namely:
(a) whether or not the area or object to which the application relates is
a significant indigenous area or a significant indigenous object in relation to
the applicant;
(b) whether or not the area or object concerned is subject to the threat
of injury or desecration;
(c) the effect of the grant of an LPO on any proprietary or pecuniary
interests in the area or object concerned.
(2) The Minister must require a report in relation to a matter referred to
in paragraph (1)(a) or (b) if the Minister has not elected, under section 40, to
treat the finding of a State or Territory, or of an authority of a State or
Territory, in relation to that matter, as being conclusive of the
matter.
(3) The Director’s report in relation to an AR application
must:
(a) if it contains a finding on a matter referred to in paragraph (1)(a)
or (b)—outline the processes involved in reaching that finding;
and
(b) if it advises the Minister on the effect that the making of an LPO
would have on the proprietary and pecuniary interests of persons other than the
applicant—include a summary of the representations made concerning that
matter.
The Minister may, before seeking such a report in relation to an AR
application, ask the Director to attempt, by the use of negotiation or mediation
processes in accordance with Division 5, to facilitate an agreed outcome in
relation to the area or object concerned.
If:
(a) the Minister is not satisfied that the process outlined in the
Director’s report for reaching a finding as to a matter referred to in
paragraph 41(1)(a) or (b) in relation to the area or object concerned is
adequate; or
(b) the Minister becomes aware that, subsequent to the making of the
report, new information has emerged in relation to a matter so referred to that
was not available to the Director;
the Minister may appoint an independent reviewer to make a further report,
in accordance with Division 6, in relation to that matter.
(1) If the Minister does not appoint an independent reviewer to make a
further report as to a matter referred to in paragraph 41(1)(a) or (b), the
Minister is bound by the finding of the Director as to that matter as set out in
the Director’s report.
(2) If the Minister does appoint an independent reviewer to make a further
report as to a matter referred to in paragraph 41(1)(a) or (b), the Minister is
bound by the findings of the reviewer as to that matter as set out in the
reviewer’s report.
If, in relation to an AR application, the Minister is bound:
(a) by a finding that the area or object concerned is a significant
indigenous area or a significant indigenous object in relation to the applicant;
and
(b) by a finding that the area or object is under threat of injury or
desecration;
the Minister may, having regard to:
(c) the views of the State or Territory concerned or of any authority of
the State or Territory, concerning the likely effect of the making of an LPO on
any proprietary or pecuniary interests in the area or object or concerning any
other consequences of the making of such an order; and
(d) if the Minister has required the Director to make a report under
section 41—that report; and
(e) if the Minister has required an independent reviewer to make a further
report under section 43—that further report; and
(f) any other matters that the Minister considers relevant;
make an LPO in respect of the area or object if the Minister is satisfied
that the making of such an order is in the national interest.
Note: Division 4 deals with the matters to be covered by an
LPO and the provisions for notification and effect of such an
order.
(1) An LPO has effect for such period as is specified in the
order.
(2) If an LPO is made in relation to an area, it must:
(a) describe the area with sufficient particulars to enable the area to be
identified; and
(b) contain provisions in relation to the protection and preservation of
the area from injury or desecration.
(3) If an LPO is made in relation to an object (including indigenous human
remains), it must:
(a) describe the object with sufficient particulars to enable the object
to be identified; and
(b) contain provisions in relation to the protection and preservation of
the object from injury or desecration.
(4) If an LPO is made in relation to indigenous human remains, it may
include provisions:
(a) requiring the delivery of the remains to an indigenous person or
indigenous persons who are entitled to, and willing to accept, possession,
custody or control of the remains in accordance with indigenous tradition;
or
(b) otherwise dealing with the remains in accordance with any reasonable
directions of an indigenous person or indigenous persons referred to in
paragraph (a); or
(c) if there is or are no such person or persons—transferring the
remains to a prescribed authority for safekeeping.
(1) As soon as practicable after deciding whether or not to make an LPO,
the Minister must notify the Director of that decision.
(2) The Director must enter particulars of the Minister’s decision
on the Register and ensure that the applicant and any other persons considered
by the Minister to be substantially affected by the Minister’s decision
are notified in writing of the decision.
(3) An LPO:
(a) must also be published in the Gazette and in a local newspaper
circulating in the region concerned; and
(b) comes into operation on the date of its publication in the
Gazette or such later date as is specified in the order.
(4) A failure to comply with subsection (2) or to publish an LPO in a
newspaper in accordance with subsection (3) does not affect the validity of the
order.
(1) If the Director is required under Division 2 or 3 to attempt, by the
use of negotiation or mediation processes in accordance with this Division, to
facilitate an agreed outcome in relation to the area or object to which an
application relates, the Director must use his or her best endeavours to
identify the parties appropriate to participate in those processes.
(2) For the purposes of subsection (1), the parties appropriate to
participate in negotiation or mediation processes:
(a) must include the applicant and any other persons identified by the
Director as having a direct proprietary or pecuniary interest in the area or
object concerned (the core parties); and
(b) may include any other person who has an interest in the area or object
concerned and who the Director identifies as a party appropriate to participate
in those processes.
(3) A failure by the Director to identify a person as a party appropriate
to participate in negotiation or mediation processes does not prevent the
registration of an agreement reached between the parties who are so
identified.
(1) If the Director is required by Division 2 or 3 to attempt, by the use
of negotiation or mediation processes in accordance with this Division, to
facilitate an agreed outcome in relation to the area or object to which an
application relates:
(a) the Director must take reasonable steps to encourage effective
negotiation between the parties; and
(b) if the Director thinks it appropriate to do so—the Director may
engage a mediator to assist the parties in reaching such an outcome.
(2) Those steps referred to in paragraph (1)(a) may include assisting the
parties to agree on the procedures to be followed in the course of negotiation,
including procedures that will restrict the disclosure of:
(a) information that, under indigenous tradition, is confidential or
subject to particular disclosure restrictions; or
(b) commercial information that is provided in confidence for the purposes
of the negotiation.
(3) Nothing in this section prevents the Director from engaging a mediator
while the parties continue to negotiate.
(1) Subject to subsection (3), all processes of negotiation or mediation,
or both, in relation to a UR application must be concluded within a period of 3
months after the 30 days specified in the public notice under section 33 comes
to an end.
(2) Subject to subsection (3), all processes of negotiation or mediation,
or both, in relation to an AR application must be concluded within such period
(not exceeding 3 months) after the 30 days specified in the public notice under
section 33 comes to an end, as is determined by the Minister.
(3) The Minister may, at any time before the end of the period fixed under
subsection (1) or (2), or before the end of that period as extended by virtue of
a previous operation of this subsection, extend that period by a further period
of one month.
(4) The extension must be effected by notice in writing given by the
Minister to the Director.
(1) If the core parties participating in negotiation or mediation
processes reach an agreement in relation to the area or object to which an
application relates, those parties and any other parties participating in the
processes who are prepared to sign the agreement may request the Director to
register that agreement.
(2) The Director must, if he or she is satisfied that the agreement is
consistent with the purposes of this Act, cause particulars of the agreement to
be entered on the Register.
(1) If an agreement is registered, it has the force of a contract binding
on the parties to the agreement.
(2) The registration of an agreement in relation to an area or object to
which an application relates is taken, for the purpose of this Act, to dispose
of the application.
(3) The applicant cannot make a new application in respect of the area or
object in respect of which an agreement has been registered unless:
(a) the area or object is under a new threat of injury or desecration;
or
(b) another signatory to the agreement has breached the
agreement.
(4) The right to make a new application in circumstances where a
registered agreement is breached does not imply that the applicant cannot sue
the party who breaches the agreement.
(1) A core party may inform the Director, in writing, that:
(a) the core party is not prepared to enter into any negotiation or
mediation process; or
(b) if any such process has been entered into—the core party is not
prepared to continue that process or to undertake any new negotiation or
mediation process.
(2) If the Director receives a notification under subsection (1) from a
core party or forms the view, without such a notification, that neither
negotiation nor mediation processes between the core parties have any prospect
of success within a reasonable time, the Director must inform the Minister that
he or she has been so notified or is of that view.
(3) If, in relation to a UR application, the Director is satisfied, after
taking account of any views of the Minister concerning the matter, that neither
negotiation nor mediation processes between the core parties have any prospect
of success within a reasonable time, the Director must, by notice in writing to
all of the parties concerned, inform them:
(a) that he or she is so satisfied; and
(b) that formal negotiation and mediation processes are no longer
available.
(4) If, in relation to an AR application, the Minister is satisfied,
having regard to the advice of the Director, that neither negotiation nor
mediation processes between the core parties have any prospect of success within
a reasonable time, the Minister must, by notice in writing to all of the parties
concerned, inform them:
(a) that he or she is so satisfied; and
(b) that formal negotiation and mediation processes are no longer
available.
(5) A notification under subsection (3) or (4) brings all negotiation and
mediation processes to an end whether or not the period for conducting those
processes as set out in section 50 has expired.
(1) Despite that fact that, in relation to an application:
(a) formal negotiation and mediation processes are no longer available (as
a result of a notice under subsection 53(3) or (4)); or
(b) such processes have never been undertaken;
the Director may, at any time, at the request of the applicant and other
parties to an agreement relating to the area or object to which the application
relates, register that agreement as if it were an agreement achieved as a result
of formal negotiation or mediation processes facilitated by the Director under
this Part.
(2) The Director must not register an agreement to which subsection (1)
relates unless:
(a) the Director is satisfied that the parties to the agreement included,
or if negotiation or mediation processes had been undertaken would have
included, the core parties within the meaning of section 49; and
(b) the agreement is consistent with the purposes of this Act.
(3) The Director may register an agreement as a result of a request under
subsection (1):
(a) during the period when the Director is preparing a report in respect
of the application concerned; or
(b) during the period when an independent reviewer is preparing a report
on any particular matter in relation to the application concerned; or
(c) at any other time before the Minister has made a decision either to
grant or refuse an LPO.
(4) If the Director decides to register an agreement obtained otherwise
than as a result of formal negotiations under this Part, the effect of
registration of that agreement is as set out in section 52.
(1) If:
(a) the Director is required, under subsection 35(2), to make a report, in
accordance with this Division, in respect of a UR application; and
(b) the application relates to an area or object that is situated within
the jurisdictional limits of a State or self-governing Territory; and
(c) the Director, on examining the procedures followed by the State or
Territory, or by an authority of the State or Territory, in making a
finding:
(i) that the area or object concerned is, or is not, in accordance with
indigenous tradition, significant to the applicant; or
(ii) the threat to the area or object concerned is, or is not under threat
of injury or desecration;
is satisfied that the procedures followed were sufficient to provide a
reliable basis for the finding;
the Director may, for the purpose of preparing his or her report, elect, in
writing, to adopt the finding.
(2) The Director must, in respect of a UR application for which a report
is required under Division 2, by notice published in a newspaper circulating in
the region in which the area or object concerned is situated:
(a) inform persons of particulars of the application in the same terms,
and subject to the same limitations, as apply for the purposes of subsections
33(3) and (4); and
(b) invite persons to make, within a period specified in the notice,
representations in writing concerning:
(i) if the Director has not elected to adopt the finding of the State or
Territory or of an authority of the State or Territory in respect of the
matter—the significance of the area or object concerned to the applicant;
and
(ii) if the Director has not elected to adopt the finding of the State or
Territory or of an authority of the State or Territory in respect of the
matter—the threat to the area or object concerned posed by any proposed
activity; and
(iii) the effect that the making of an LPO in respect of that area or
object would have on the proprietary and pecuniary interests of persons other
than the applicant.
(3) If, in relation to a UR application relating to an object, the
Director is satisfied that public comment on the application would not be
necessary or appropriate, the Director may prepare a report without giving
public notice as required by subsection (2).
(4) If the Minister, in respect of an AR application, requires the
Director to report on any matter or matters in accordance with subsection 41(1),
the Director must, by notice published in a newspaper circulating in the region
where the area or object concerned is situated:
(a) inform persons of particulars of the application in the same terms,
and subject to the same limitations, as apply for the purposes of subsections
33(3) and (4); and
(b) invite persons to make, within a period specified in the notice,
representations in writing concerning any or all of those matters.
(5) A notice under subsection (2) or (4) must also be accompanied by a
statement of the kinds of matters that might be dealt with if an LPO is made in
relation to the area or object concerned.
(1) If, under Division 2 or 3, the Minister appoints an independent
reviewer to prepare a further report in respect of a particular matter or
matters in relation to an application, that reviewer may, having regard to the
circumstances in which the further report has been required:
(a) by notice in writing, request a person to give to the independent
reviewer, within a period specified in the request, a submission, or an
additional submission, in relation to that matter or any one or more of those
matters; or
(b) by notice published in a newspaper circulating in the region in which
the area or object concerned is situated:
(i) inform persons of particulars of the application in the same terms as
are required for the purposes of subsections 33(3) and (4); and
(ii) invite persons to make, within a period specified in the notice,
representations in writing in relation to that matter or all or any of those
matters.
(2) The notice should also be accompanied by a statement of the kinds of
matters that might be dealt with if an LPO is made in relation to the area or
object concerned.
In reaching a finding as to the significance of an area or object to an
applicant, the Director, and, where appropriate, an independent reviewer, must
have regard to the principle that indigenous persons are the primary source of
information about the significance of particular areas or objects in terms of
indigenous traditions.
(1) For the purpose of assisting an independent reviewer in the
preparation of his or her further report in relation to an application, the
Director must provide the independent reviewer with:
(a) a copy of the application and of any additional information provided
by the applicant; and
(b) if the application relates to an area or object situated within the
jurisdictional limits of a State or self-governing Territory—a copy of all
correspondence entered into between the Director and any Minister, officer or
authority of that State or Territory; and
(c) a copy of all representations made to the Director, whether or not
provided as a result of a public notice in relation to the application;
and
(d) a copy of any other written information obtained, and of any
information reduced to writing, by the Director in relation to the
application.
(2) An independent reviewer must:
(a) in directly inviting any submission or additional submission from a
person; or
(b) in inviting submissions generally by public notice;
specify that all representations made to the Director will be treated by
the independent reviewer as if they had been made to the independent reviewer
but that that treatment does not prevent a person from making a further
representation to the independent reviewer in accordance with the
invitation.
(1) A person making a representation to the Director or to an independent
reviewer in response to an invitation under this Division is not entitled to see
the application, any additional information provided by the applicant, or any
other representation made to the Director or independent reviewer.
(2) A person making a representation to an independent reviewer in respect
of a particular matter in response to an invitation under this Division is not
entitled to see the application, any additional information provided by the
applicant, or any representation made to the Director in respect of that
matter.
(1) If the Director is required, under Division 2 or 3, to prepare a
report for the Minister, the Director must give the report to the Minister as
soon as practicable but:
(a) if the report was required under Division 2—within 3 months;
and
(b) if the report was required under Division 3—within a period
specified by the Minister;
after first becoming so required to prepare the report.
(2) If an independent reviewer is required, under Division 2 or 3, to
prepare a report for the Minister on any matter or matters, the independent
reviewer must give the Minister a report in relation to that matter or those
matters as soon as practicable but within a period that is specified by the
Minister.
(3) The Minister may, if, before the end of a period referred to in
subsection (1) or (2), he or she considers it necessary to do so, by notice in
writing given to the Director or independent reviewer preparing the report,
extend the period for preparation of the report by such further period as is
specified in the notice.
(4) A failure to submit a report to the Minister within the period
referred to in subsection (1) or (2), or within that period as extended under
subsection (3), does not invalidate the report.
(1) If a report of the Director or of an independent reviewer is required
to contain a finding as to:
(a) the significance of an area or object to an applicant; or
(b) the threat of injury or desecration posed to that area or
object;
the report must set out the process followed in reaching, and the general
reasons for, that finding.
(2) If a report of a Director is required to examine the effect that the
making of an LPO will have upon proprietary and pecuniary interests of persons
other than the applicant, the report must contain a summary of all
representations received by the Director in relation to that matter.
(3) The obligation under subsection (1) to set out the general reasons for
a finding is not to be taken, despite section 25D of the Acts Interpretation
Act 1901, to require the disclosure of confidential
information.
(1) The Minister may make an emergency protection order
(EPO) under this subsection on the Minister’s initiative or
on an application under subsection (2) in respect of an area or an object
situated in Australia or in Australian waters.
(2) If an application for an LPO is rejected under subsection 31(1)
because the Director is satisfied that the applicant has not exhausted the
remedies available under the laws of the State or Territory concerned, the
applicant may apply in writing to the Minister for an EPO under this
subsection.
(3) The Minister may make an EPO if the Minister is satisfied
that:
(a) the area or object concerned appears to be a significant indigenous
area or a significant indigenous object; and
(b) the area or object appears to be under serious and immediate threat of
injury or desecration; and
(c) if the area or object is covered by an accredited heritage protection
regime in force in a State or Territory in respect of the protection of the area
or object—protection of the area or object may be in the national
interest; and
(d) if a person has applied for the EPO under subsection (2)—the
protection under the EPO should be available before the person has exhausted the
remedies under the laws of the State or Territory concerned.
(4) If:
(a) apart from this subsection, paragraph (3)(c) would apply in relation
to an area or object because of an accredited heritage protection regime that is
in force in respect of the protection of the area or object; but
(b) the Minister has given a notice under subsection 27(1) in respect of
the regime and in respect of a matter that covers the protection of the
particular area or object; and
(c) the period of 90 days after the giving of the notice, or that period
as extended under subsection 27(2), has not expired;
then, for the purpose of subsection (3), the accredited heritage protection
regime is taken not to be in force in respect of the protection of that area or
object and paragraph (3)(c) does not apply in relation to that area or
object.
(5) An EPO (other than an EPO made on an application under subsection (2))
has effect for such period (not exceeding 7 days) as is specified in the order,
commencing at the time the order is made.
(6) An EPO made on an application under subsection (2) has effect for such
period as is specified in the order, commencing at the time the order is
made.
(7) The Minister may, before the expiration of an EPO other than an EPO
made on an application under subsection (2) (including such an EPO that has been
extended because of an operation of this subsection), extend it for a period not
exceeding 7 days.
(8) The Minister may, before the expiration of an EPO made on an
application under subsection (2) (including such an EPO that has been extended
because of an operation of this subsection), extend it for a specified period if
the Minister is satisfied that the remedies under the laws of the State or
Territory concerned still have not been exhausted and that it is appropriate
that the EPO should continue to be in force.
(9) An EPO must:
(a) describe the area or object with sufficient particulars to enable it
to be identified; and
(b) contain provisions in relation to the protection of the area or object
and the preservation of the area or object from injury or desecration.
(1) The Minister may make an interim protection order (IPO)
under this subsection in respect of an area or an object situated in Australia
or in Australian waters.
(2) The Minister may make an IPO if:
(a) a person or persons have made an application for an LPO in respect of
an area or object but proceedings in relation to that application have not been
completed; and
(b) the Minister is satisfied that the application has, on its face,
established that:
(i) the area or object concerned is a significant indigenous area or a
significant indigenous object; and
(ii) the area or object is under serious threat of injury or desecration;
and
(iii) if the area or object is subject to an accredited heritage
protection regime in force in a State or Territory in respect of the protection
of the area or object—protection of the area or object is in the national
interest.
(3) If:
(a) apart from this subsection, subparagraph (2)(b)(iii) would apply in
relation to an area or object because of an accredited heritage protection
regime that is in force in respect of the protection of the area or object;
but
(b) the Minister has given a notice under subsection 27(1) in respect of
the regime and in respect of a matter that covers the protection of the
particular area or object; and
(c) the period of 90 days after the giving of the notice, or that period
as extended under subsection 27(2), has not expired;
then, for the purpose of subsection (2), the accredited heritage protection
regime is taken not to be in force in respect of the protection of that area or
object and subparagraph (2)(b)(iii) does not apply in relation to that area or
object.
(4) An IPO has effect for such period (not exceeding 4 months) as is
specified in the order, commencing at the time the order is made.
(5) The Minister may:
(a) before the expiration of an IPO (other than an IPO that has been
extended because of an operation of this subsection), extend it for a period not
exceeding 3 months; and
(b) before the expiration of an IPO that has been extended because of an
operation of paragraph (a) or a previous operation of this paragraph, extend it
for a further period not exceeding one month.
(6) An IPO must:
(a) describe the area or object with sufficient particulars to enable it
to be identified; and
(b) contain provision in relation to the protection of the area or object
and the preservation of the area or object from injury or desecration.
(1) The Minister must, as soon as practicable after making an EPO or IPO,
take reasonable steps to give notice of the order to persons likely to be
substantially affected by the order.
(2) An IPO must be published in the Gazette and in a local
newspaper circulating in the region concerned.
(3) If an EPO or IPO is made by a person who has been delegated the power
by the Minister to make the order, the person must, as soon as practicable after
making the order, notify the Minister of:
(a) the making of the order; and
(b) the terms of the order; and
(c) the reasons for which the order is made;
in such manner as the person thinks appropriate in the
circumstances.
(4) Any failure to comply with subsection (1), (2) or (3) does not
invalidate the order concerned.
(1) If:
(a) 2 or more applications are received in relation to the same area, or
in relation to overlapping areas, or in relation to the same object, because of
threat from the same activity; and
(b) the Director decides not to reject those applications under section
31;
the Director must, for the purposes of facilitating negotiation and
mediation processes in respect of those applications, treat the applications as
if they were a single application covering the area, or the total area, or the
object, to which they relate with the objective of assisting the core parties to
achieve an agreed outcome.
(2) For the purposes of conducting such negotiation or mediation processes
under Division 5:
(a) a reference in this Part to the application is a reference to all of
the applications considered together; and
(b) a reference in this Part to a core party includes a reference to all
of the applicants; and
(c) a reference in this Part to the area concerned, or to
the area to which the application relates, is a reference to the area to which
all of the applications relate and includes, if the applications relate to
overlapping areas, a reference to the area comprising all of those overlapping
areas; and
(d) a reference in this Part to the object concerned, or to
the object to which the application relates, is a reference to the
object to which all the applications relate.
(1) If:
(a) 2 or more applications are received in respect of the same area, or
overlapping areas, or the same object, because of threat from the same activity;
and
(b) the Director decides not to reject those applications under section
31; and
(c) those applications are not disposed of through the registration of an
agreement under Division 5;
the Minister must make, or refuse to make, a single order in respect of the
area (which may be an area comprising overlapping areas), or the object, to
which all of the applications relate.
(2) For the purposes of assisting the Minister in determining whether or
not to make an order under subsection (1), if the applications are UR
applications:
(a) sections 35, 36 and 37 apply separately in relation to each such
application; and
(b) if the Minister is bound by findings of the kind referred to in
paragraphs 38(a) and (b) in relation to an area or object to which more than one
of the applications relate (the relevant applications)—the
Minister may, under section 38, having regard to the matters referred to in that
section in respect of each of the relevant applications, ensure that the order
contains provision for the protection and preservation of the area, or the total
area, or the object, to which the relevant applications relate.
(3) For the purposes of deciding whether or not to make an order in the
circumstances referred to in subsection (1), if the applications are AR
applications:
(a) sections 39, 40, 41, 43 and 44 apply in relation to each such
application; and
(b) if the Minister is bound by findings of the kind referred to in
paragraphs 45(a) and (b) in relation to an area or object to which more than one
of the applications relate (the relevant applications)—the
Minister may, under that section, having regard to the matters referred to in
section 45 in respect of each of the relevant applications, ensure that the
order contains provision for the protection and preservation of the area, or the
total area, or the object, to which the relevant applications
relate.
(1) A person is guilty of an offence if:
(a) the person discovers, in a place situated in Australia or Australian
waters, objects that are indigenous human remains; and
(b) at the time of the discovery there is no accredited heritage
protection regime in relation to the reporting of indigenous human remains in
force at the place where the remains are discovered; and
(c) the person fails to report the discovery, or to give particulars of
the remains and of their location, to the Director as soon as practicable after
the discovery.
Penalty: 10 penalty units.
(2) An offence against subsection (1) is a strict liability
offence.
(3) Chapter 2 of the Criminal Code applies to an offence against
subsection (1).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) Subsection (1) does not apply to a person if:
(a) the person is an indigenous person; and
(b) the person’s compliance with subsection (1) would be contrary to
his or her indigenous traditions.
(5) If the Director:
(a) receives a report referred to in subsection (1); and
(b) is satisfied that the report relates to indigenous human
remains;
the Director must take reasonable steps to consult with any indigenous
persons whom the Director considers may have an interest in the remains, with a
view to determining the proper action to be taken in relation to them.
(1) This section applies to indigenous human remains:
(a) discovered at a place situated in Australia or Australian waters where
there is no accredited heritage protection regime in relation to the protection
of indigenous human remains; and
(b) delivered to the Director.
(2) The Director must:
(a) return the remains to an indigenous person or indigenous persons who
are entitled to, and willing to accept, possession, custody or control of the
remains in accordance with indigenous tradition; or
(b) otherwise deal with the remains in accordance with any reasonable
directions of an indigenous person or indigenous persons referred to in
paragraph (a); or
(c) if there is or are no such person or persons—transfer the
remains to a prescribed authority for safekeeping.
(3) Nothing in this section is to be taken to derogate from the right of
any indigenous person or indigenous persons accepting possession, custody or
control of any indigenous human remains under this section to deal with the
remains in accordance with indigenous tradition.
Note: The Minister may also make provisions in relation to
indigenous human remains in an LPO under Part 4. See in particular subsection
46(4).
(1) A person is guilty of an offence if the person contravenes a provision
of a protection order in respect of an area.
Penalty: Imprisonment for 5 years.
(2) A person is guilty of an offence if the person contravenes a provision
of a protection order in respect of an object.
Penalty: Imprisonment for 2 years.
(3) Chapter 2 of the Criminal Code applies to an offence against
subsection (1) or (2).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) This section applies in relation to proceedings for:
(a) an offence against subsection 69(1) or (2); or
(b) an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to an offence referred to in paragraph
(a).
(2) A defendant must not be committed for trial or convicted in
proceedings to which this section applies if there is evidence that, at the time
the offence is alleged to have been committed, the defendant did not know of the
existence of the protection order alleged to have been contravened.
(1) This section applies for the purposes of a prosecution for:
(a) an offence created by a provision in this Act or the regulations;
or
(b) an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 that relates to an offence referred to in paragraph
(a).
(2) If it is necessary to prove the state of mind of a body corporate in
relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, employee or agent had the state of mind.
(3) If:
(a) conduct is engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
against this Act, to have been engaged in by the body corporate unless the body
corporate establishes that it took reasonable precautions and exercised due
diligence to avoid the conduct.
(4) If it is necessary to establish the state of mind of an individual in
relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by an employee or agent of the
individual within the scope of his or her actual or apparent authority;
and
(b) that the employee or agent had the state of mind.
(5) If:
(a) conduct is engaged in on behalf of an individual by an employee or
agent of the individual; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of the prosecution of an offence
referred to in subsection (1), to have been engaged in also by the individual,
unless the individual establishes that he or she took reasonable precautions and
exercised due diligence to avoid the conduct.
(6) If:
(a) an individual is convicted of an offence referred to in subsection
(1); and
(b) the individual would not have been convicted of the offence if
subsections (4) and (5) had not been enacted;
the individual is not liable to be punished by imprisonment for that
offence.
(7) In this section:
director, in relation to a body that:
(a) is incorporated for a public purpose by a law of the Commonwealth, a
State or a Territory; and
(b) is constituted by one or more members;
means the member, or any of the members, constituting the body.
engage in conduct includes fail or refuse to engage in
conduct.
state of mind, in relation to a person, includes:
(a) the person’s knowledge, intention, opinion, belief or purpose;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(1) Application may be made to the Administrative Appeals Tribunal for
review of a decision under subsection 32(1) to reject an application.
(2) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
(1) In this section:
proceedings means:
(a) any proceedings in a court:
(i) arising under or in relation to this Act; or
(ii) in which information collected or provided for the purposes of this
Act is being sought or
(b) any proceedings before the Administrative Appeals Tribunal under
section 72.
(2) In any proceedings conducted by a court or the Tribunal, the court or
the Tribunal may, on application by a party to the proceedings:
(a) order the exclusion of the public, or specified persons, from a
sitting of the court or Tribunal; or
(b) make any other order;
for the purposes of preventing or limiting the disclosure of information
with respect to the proceedings.
(3) Without limiting subsection (2), a reference to information in that
subsection includes a reference to:
(a) information pertaining to indigenous traditions; or
(b) information pertaining to particular commercial interests.
(4) When making an order under subsection (2), the court or the Tribunal
must have regard to:
(a) the interests of justice; and
(b) where appropriate—the interests of indigenous traditions and any
relevant commercial interests.
(5) This section does not affect the power of a court or the Tribunal, in
conducting any proceedings, to admit or refuse to admit particular evidence for
the purposes of the proceedings. In particular, this section does not limit the
operation of section 74.
(1) In this section, proceedings has the same meaning as in
section 73.
(2) If, during any proceedings, a party to the proceedings seeks the
disclosure of information:
(a) that pertains to indigenous traditions; and
(b) the disclosure of which will be contrary to indigenous
traditions;
the person holding the information may, by application to the court or the
Tribunal conducting the proceedings, claim an immunity from the obligation to
disclose the information on the ground that the disclosure will not be in the
public interest.
(3) If immunity from the obligation to disclose information is claimed in
proceedings before a court or the Tribunal—the court or the Tribunal may
require the information to be disclosed for the purposes of the proceedings only
if it has been shown to the satisfaction of the court or Tribunal that, on
balance, the public interest in the administration of justice to disclose the
information outweighs the public interest to protect the information.
(4) Nothing in this section prevents a court or the Tribunal, in
conducting proceedings:
(a) if the information in respect of which immunity is claimed is
contained in a document—from inspecting the document; and
(b) if the information in respect of which immunity is claimed is not in a
document—from hearing, in the presence only of the party claiming
immunity, particulars of the oral evidence relating to that
information;
before deciding whether the information should be disclosed for the
purposes of the proceeding.
(1) If, on the Commonwealth Minister’s application, the Federal
Court is satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute:
(a) a contravention of a provision of a protection order; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such
a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to
be appropriate.
(2) The Court may grant an interim injunction pending determination of an
application under subsection (1) if the Court is of the opinion that it is
desirable to do so.
(3) The Court may rescind or vary an injunction under subsection (1) or
(2).
(4) The Court’s power to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is a serious and immediate threat of injury to,
or desecration of, the relevant area or object if the person engages in conduct
of that kind.
(5) The Court’s power to grant an injunction requiring a person to
do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing; and
(c) whether or not there is a serious and immediate threat of injury to,
or desecration of, the relevant area or object if the person refuses or fails to
do that act or thing.
Nothing in this Act limits or restricts any powers conferred on a court,
or on the Administrative Appeals Tribunal, by any other law.
(1) Subject to subsections (2) and (3), the following are disallowable
instruments for the purposes of section 46A of the Acts Interpretation Act
1901:
(a) a written notice under subsection 25(1) in respect of the
accreditation of the laws of a State or Territory in respect of a particular
matter or matters;
(b) a written notice under subsection 27(2) varying or revoking the
accreditation of the laws of a State or Territory in respect of a particular
matter or matters;
(c) an LPO under Part 4 or a variation or revocation of an LPO under Part
4.
(2) If the Legislative Instruments Bill 1996 has become an Act and
commenced before the commencement day in relation to an instrument referred to
in paragraph (1)(a), (b) or (c), then, in spite of subsection (1), that
instrument is declared to be a disallowable non-legislative instrument for the
purposes of section 46B of the Acts Interpretation Act 1901.
(3) If the Legislative Instruments Bill 1996, having become an Act,
commences after the commencement day in relation to an instrument referred to in
paragraph (1)(a), (b) or (c), then, with effect from the commencement of that
Act:
(a) despite the operation of that Act, the instrument does not become a
legislative instrument; and
(b) the instrument is declared to be a disallowable non-legislative
instrument for the purposes of section 46B of the Acts Interpretation Act
1901; and
(c) if the instrument was laid before either House of the Parliament in
accordance with the requirements of section 46A of the Acts Interpretation
Act 1901—the instrument is taken to have been so laid for the purposes
of section 46B of the Acts Interpretation Act 1901; and
(d) section 46B of the Acts Interpretation Act 1901 applies in
relation to the instrument as if it had been in force at the time when the
instrument was made and as if any action taken in the Parliament in relation to
the instrument had been so taken in relation to the instrument as a disallowable
non-legislative instrument.
(4) In this section:
commencement day means:
(a) in relation to an instrument referred to in paragraph (1)(a) or
(b)—the day fixed by Proclamation for the commencement of Part 3;
and
(b) in relation to an instrument referred to in paragraph (1)(c)—the
day fixed by Proclamation for the commencement of Part 4.
(1) If:
(a) apart from this section, the operation of a part of this Act would
result in the acquisition of property from a person otherwise than on just
terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the Court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
(1) This section applies to a person:
(a) who wishes to apply for a protection order; or
(b) who considers that his or her proprietary or pecuniary
interests:
(i) are likely to be adversely affected by a proposed protection order;
or
(ii) are adversely affected by a protection order; or
(c) against whom proceedings have been instituted:
(i) for an offence referred to in subsection 71(1); or
(ii) under section 75.
(2) A person to whom this section applies may apply to the
Attorney-General for assistance under this section.
(3) An authorised person may, subject to any conditions as the authorised
person determines, authorise the Commonwealth’s grant to a person applying
under subsection (2) of such legal or financial assistance as the authorised
person determines.
(4) An authorised person must not authorise the grant of assistance unless
he or she is satisfied that:
(a) it would involve hardship to the applicant if the application is
refused; and
(b) in all the circumstances, it is reasonable that the application should
be granted.
(5) In this section:
authorised person means:
(a) the Attorney-General; or
(b) an officer of the Australian Public Service authorised in writing by
the Attorney-General under this section.
(1) Subject to subsection (3), the Minister may, by written instrument,
delegate to the Director any of his or her powers under this Act.
(2) The Minister may also, by written instrument, delegate to a person who
holds or performs the duties of a Senior Executive Service office under the
Public Service Act 1922 the Minister’s powers in relation to an EPO
(other than the Minister’s power to make an EPO under subsection
62(2)).
(3) The Minister must not delegate to the Director his or her powers in
relation to the following matters:
(a) the Minister’s powers in relation to the accreditation of the
laws of a State or Territory as an accredited heritage protection regime under
Part 3;
(b) the Minister’s power to appoint an independent reviewer under
section 36 or 43;
(c) the Minister’s power to reject an application under subsection
39(2);
(d) the Minister’s powers in relation to an LPO;
(e) the Minister’s powers under subsection 62(2).
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
1 The whole of the Act
Repeal the Act.
2 Saving provision concerning operation of the
Act in relation to areas and objects in Victoria
(1) If item 1 comes into force before the commencement of the Victorian
protection legislation, then, despite that item, the repealed Act continues to
apply, and the new Act does not apply:
(a) in relation to all areas and objects in Victoria—until the
commencement of the Victorian protection legislation; and
(b) in relation to any particular area or object in Victoria in relation
to which a process has been commenced, but not completed, under Part IIA of the
repealed Act before the commencement of the Victorian protection
legislation—until the completion of that process.
(2) In this item:
new Act means the Aboriginal and Torres Strait Islander
Heritage Protection Act 1998.
repealed Act means the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984.
Victorian protection legislation means legislation of the
Victorian Parliament that is enacted, in whole or in part, to replace Part IIA
of the repealed Act.
3 Saving provision concerning
declarations
(1) A declaration:
(a) made by the Minister under the repealed Act; or
(b) made by a Minister of the Crown of Victoria as a delegate of the
Minister referred to in paragraph (a) under the repealed Act or under the
repealed Act as continued in force by item 2;
continues to have effect, according to its terms, as if the repealed Act
had not been repealed.
(2) In this item:
repealed Act has the same meaning as in item 2.
4 Transitional provisions
(1) If:
(a) an application for a declaration under the repealed Act in respect of
an area or object in Australia (other than an application that relates to an
area or object in Victoria) has been lodged; but
(b) the Minister has not begun to consider whether the area or object is
of significance to Aboriginals or whether it is under threat of injury or
desecration;
that application is to be treated as if it had been made under the new
Act.
(2) If:
(a) an application for a declaration under the repealed Act in respect of
an area or object in Australia (other than an application under Part IIA of that
Act that relates to an area or object in Victoria) has been lodged;
and
(b) the Minister has begun to consider whether the area or object is of
significance to Aboriginals and whether it is under threat of injury or
desecration;
the Minister may, having regard to the desirability of dealing with the
application as promptly as possible and with as little extra cost to the parties
involved, determine, in writing, whether the application should be dealt with
under the repealed Act or under the new Act.
(3) If the Minister determines that the application should be dealt with
under the repealed Act, that Act is to be treated, for the purposes of that
application, as continuing to have effect despite its repeal.
(4) If the Minister determines that the application should be dealt with
under the new Act, the application must be referred to the Director of
Indigenous Heritage Protection to be dealt with as if it had been lodged under
the new Act as an application for an LPO.
(5) In this item:
Aboriginal has the same meaning as in the repealed
Act.
new Act has the same meaning as in item 2.
repealed Act has the same meaning as in item 2.
1 After subsection 33(3)
Insert:
(3A) For the purposes of this Act, a Commonwealth record is an exempt
record if it:
(a) is, or is a copy of, or of a part of, or contains an extract from, a
document that is supplied, or created, for the purposes of the Aboriginal and
Torres Strait Islander Heritage Protection Act 1998; and
(b) contains information that, under indigenous tradition (within the
meaning of that Act), is confidential or subject to particular disclosure
restrictions.
(3B) Nothing in subsection (3A) affects the scope or operation of any
other provision in this section.
2 After subsection 34(1)
Insert:
(1A) If a Minister is satisfied that a record is an exempt record for a
reason referred to in subsection 33(3A), whether or not the record has been
examined in accordance with section 35 and whether or not a decision has been
given in respect of the record under that section, the Minister may sign a
certificate to that effect, specifying that reason.
(1B) Subject to the operation of this Part, a certificate under subsection
(1A), while it remains in force, establishes conclusively that the record is an
exempt record referred to in subsection 33(3A).
3 Subsection 34(2)
After “(1)”, insert “or (1A)”.
4 Subsection 34(4)
Omit “(1) or (3)”, substitute “(1), (1A) or
(3)”.
5 Subsection 44(5)
After “33(1)(a) or (b)”, insert “, or subsection
33(3A),”.
6 Subsection 44(5)
After “34(1)”, insert “or (1A) (as the case
requires)”.
7 Paragraph 45(2)(a)
After “(1)”, insert “or (1A)”.
8 Subparagraph 47(2)(a)(iv)
After “(1)”, insert “or (1A)”.
9 Paragraph 53(3)(a)
After “(1)”, insert “or (1A)”.
Freedom
of Information Act 1982
10 At the end of Part IV
Add:
(1) In this section:
ATSIHP Act means the Aboriginal and Torres Strait Islander
Heritage Protection Act 1998 and includes the regulations made under that
Act.
indigenous tradition has the same meaning as in the ATSIHP
Act.
(2) A document is an exempt document if it:
(a) is, or is a copy of, or of a part of, or contains an extract from, a
document that is supplied, or created, for the purposes of the ATSIHP Act;
and
(b) contains information that, under indigenous tradition, is confidential
or subject to particular disclosure restrictions.
(3) If a Minister is satisfied that a document is an exempt document for a
reason referred to in subsection (2), the Minister may sign a certificate to
that effect, specifying that reason.
(4) Subject to the operation of Part VI, a certificate under subsection
(3), while it remains in force, establishes conclusively that the document is an
exempt document referred to in subsection (2).
(5) If a Minister is satisfied as mentioned in subsection (3) by reason
only of information or a matter contained in a particular part or particular
parts of a document, a certificate under that subsection in respect of the
document must identify that part or those parts of the document as containing
the information or matter by reason of which the certificate is given.
(6) The responsible Minister of an agency may, either generally or as
otherwise provided by the instrument of delegation, by writing signed by the
Minister, delegate to the principal officer of the agency the Minister’s
power under this section in respect of documents of the agency.
(7) A power delegated under subsection (6), when exercised by the
delegate, is taken to have been exercised by the responsible Minister for the
purposes of this Act.
(8) A delegation under subsection (6) does not prevent the exercise of a
power by the responsible Minister.
11 Section 36A
Omit “and 36(3)”, substitute “, 36(3) and
47B(3)”.
12 Subsection 58(3)
Omit “or 36”, substitute “, 36 or 47B”.
13 Subsection 58(4)
Omit “or 35”, substitute “, 35 or 47B”.
14 Subsections 58A(5), (8) and
(9)
Omit “or 36”, substitute “, 36 or 47B”.
15 Subparagraph
58C(2)(a)(iv)
After “35”, insert “or subsection
47B(3)”.
16 Subsection 58E(1)
Omit “or 36”, substitute “, 36 or 47B”.
17 Paragraph 64(3)(a)
Omit “or 36”, substitute “, 36 or 47B”.
18 Subsection 64(4)
Omit “or 36(4)”, substitute “, 36(4) or
47B(5)”.
19 Section 65
Omit “or 36”, substitute “, 36 or 47B”.