Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
UNDERWATER CULTURAL HERITAGE BILL 2018
UNDERWATER CULTURAL HERITAGE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2018
ADDENDUM TO THE EXPLANATORY MEMORANDUM
This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest No. 6 of 2018, dated 20 June 2018.
(Circulated by authority of the Assistant Minister for the Environment,
the Honourable Melissa Price MP)
UNDERWATER CULTURAL HERITAGE BILL 2018
UNDERWATER CULTURAL HERITAGE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2018
The purpose of this addendum is to provide additional material to the Explanatory
Memorandum to the Underwater Cultural Heritage Bill 2018 (the Bill) and the Underwater
Cultural Heritage (Consequential and Transitional Provisions) Bill 2018.
KEY CONCEPTS - STRICT LIABILITY
The inclusion of strict liability for the offences in the Bill , which is detailed in the table
below, is consistent with the principles outlined in the Attorney-General's Department's
'Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers', because:
The offences are not punishable by imprisonment, and the offences are punishable by a
fine of up to 60 penalty units for an individual, or 300 penalty units for a body corporate.
This means that persons who contravene a strict liability offence provision of the Bill,
once enacted, will not be subject to unduly harsh or unfair penalties.
The punishment of contraventions through the application of strict liability offences will
enhance the effectiveness of the compliance and enforcement regime established by the
Bill and deter prohibited conduct by providing a cost effective option for regulating non-
compliance.
There are legitimate grounds for penalising non-compliance with a regulatory scheme
when the person should be, or is, aware of their obligations under that scheme. In
practice, the Bill regulates a specific community, which includes scuba divers; private
persons in legal possession of shipwreck relics; dealers in antiques or second hand goods;
numismatists and companies involved with commercial marine activities. Due to their
exposure to the regulation of protected underwater cultural heritage, these individuals and
companies could reasonably identify whether their conduct would constitute an offence.
Clause 44 of the Bill allows for infringement notices to be issued for contraventions of
the strict liability provisions of the Bill to help ensure that individuals are not punished
disproportionately to the seriousness of an offence, and provide an alternative where a
criminal conviction may have significant impact on their career or business.
The defence of mistake of fact is available for strict liability offences (sections 6.1 and 9.2 of
the Criminal Code) and the existence of strict liability does not make any other defence
unavailable (subsection 6.1(3) of the Criminal Code).
UCH Bill Clause Justification for applying strict liability
Subclause27(6) - Failure to A permit places the person on notice to guard against the possibility of
notify Minister of transfer of any contravention. Permits will contain information on statutory
permit requirements and impose conditions that must be met.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 28(3) - Breach of A permit places the person on notice to guard against the possibility of
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permit condition any contravention. Permits will contain information on statutory
requirements and impose conditions that must be met.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 29(5) - Prohibited Strict control over incursions into protected zones by vessels and persons
conduct within protected zone is necessary to ensure the integrity of the regulatory regime and
without a permit protection of underwater cultural heritage. Protected zones may prohibit
entry without a permit and this fact is clearly communicated on
hydrographic charts used for marine navigation in Australia. There are
also public safety concerns as some protected zones contain unexploded
ordinance.
The existence of protected zones has been made aware to both the
general public and specific stakeholders through the application of the
existing Historic Shipwrecks Act 1976 (Shipwrecks Act), so there is a
reasonable expectation that persons operating in the marine environment
should have knowledge of these regulations.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 30(5) - Conduct with The control of adverse impacts by vessels and persons is necessary to
an adverse impact on protected ensure the integrity of the regulatory regime and protection of
UCH without a permit underwater cultural heritage. The type and severity of impacts can vary
greatly and could involve low level but cumulative impacts that may be
ignored by the public. Therefore, the ability to enforce the requirement
in a simple manner will enhance regulatory effectiveness.
The principle of enjoying but not damaging, destroying or interfering
with underwater cultural heritage has been widely communicated to both
the general public and specific stakeholders through the application of
the existing Shipwrecks Act, so there is a reasonable expectation that
persons interacting with underwater cultural heritage should have
knowledge of its regulation.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 31(5) - Possession of The offence of illegal possession of shipwrecks has been widely
protected UCH without a permit communicated to both the general public and specific stakeholders
through the application of the existing Shipwrecks Act, so there is a
reasonable expectation that persons interacting with underwater cultural
heritage should have knowledge of this regulation.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 32(4) - Supply and Regulatory control over the movement and location of protected
offers to supply protected UCH underwater cultural heritage is necessary to ensure the integrity of the
without a permit regulatory regime and protection of underwater cultural heritage. The
severity of this statutory requirement is low and may be ignored by the
public. Therefore, the ability to enforce the requirement in a simple
manner will enhance regulatory effectiveness.
This regulation has been widely communicated to both the general
public and specific stakeholders through the application of the existing
Shipwrecks Act, so there is a reasonable expectation that persons
interacting with underwater cultural heritage should have knowledge of
this regulation.
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The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 33(4) - Advertising to A permit places a person on notice to guard against the possibility of any
sell UCH without including contravention.
permit number
The punishment of the offences not involving fault is likely to
significantly enhance the effectiveness of the enforcement regime in
deterring this conduct. The severity of this statutory requirement is low
and may tend to be ignored by the public. Therefore, the ability to
enforce the requirement in a simple manner will enhance regulatory
effectiveness.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 34(4) - Importing It is a well-established practice that the transfer of cultural heritage
protected UCH without a permit objects between countries is subject to regulations, conventions,
restrictions and importation requirements. It is therefore reasonable to
expect that persons wishing to export and import cultural objects should
have or seek knowledge about its regulation and be aware of the
penalties for non-compliance.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 35(4) - Exporting It is a well-established practice that the transfer of cultural heritage
UCH without a permit objects between countries is subject to regulations, conventions,
restrictions and importation requirements. It is therefore reasonable to
expect that persons wishing to export and import cultural objects should
have or seek knowledge about its regulation and be aware of the
penalties for non-compliance.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 36(4) - Importing It is a well-established practice that the transfer of cultural heritage
UCH of a foreign country objects between countries is subject to regulations, conventions,
without a permit restrictions and importation requirements. It is therefore reasonable to
expect that persons wishing to export and import cultural objects should
have or seek knowledge about its regulation and be aware of the
penalties for non-compliance.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 37(5) - Failing to A permit places a person on notice to guard against the possibility of any
produce a permit contravention. Permits will contain information on statutory
requirements and impose conditions that must be met.
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 38(6) - Failure to The failure of a person to respond to a notice is a pre-condition of the
respond to a notice from offence.
Minister
The penalty does not include imprisonment and the fine does not exceed
60 penalty units for an individual.
Subclause 39(7) - Failure to The failure of a person to comply with directions in the notice is a pre-
comply with Ministerial condition of the offence.
direction
The penalty does not include imprisonment and the fine does not exceed
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60 penalty units for an individual.
CRITERIA RELATING TO HERITAGE SIGNIFICANCE - PART 2, DIVISION 3,
CLAUSE 22
Clause 22 of the Bill provides for the criteria relating to the assessment of heritage
significance is included in the Underwater Cultural Heritage Rules (the Rules). This is
because of the subjective nature of heritage values assessment and its connection with
evolving cultural attitudes in the community, and the need to provide flexibility for
amendments to the criteria to be made if required.
The degree to which the community places value on particular heritage fluctuates over time.
These changes in community attitudes can necessitate changes to the detailed heritage
assessment guidance that in turn may also impact the effectiveness of the criteria, which may
require modification.
Similar to the heritage criteria, the purpose of providing for the Rules to guide the granting or
varying permits is to allow more detailed guidance to be provided that deals effectively with
the varying circumstances of permit applications. Like the assessment of heritage values,
there is a degree of subjectivity in the decisions, such as a decision about what constitutes an
adverse impact in a particular case.
Including the heritage assessment criteria and permit guidance in the Rules provide flexibility
to revise them to reflect policy needs. For example, it may be appropriate to amend the
criteria or guidance from time to time to align with Commonwealth, State or Territory
planning and heritage policies or changing environmental conditions. This is especially
important where underwater cultural heritage regulated by the Bill is located in areas that are
solely within the jurisdiction of State or Territory planning processes.
Additionally, the Rules which will contain the heritage assessment criteria and the
specification of matters relating to the granting and variation of permits will be subject and
would be disallowable under the Legislation Act 2003 (the Legislation Act). As such, the
Rules, including any amendments, will be subject to public and Parliamentary scrutiny,
including scrutiny by the Senate Standing Committee on Regulations and Ordinances.
Consequently, there will be sufficient political and practical oversight of the heritage criteria
and matters relating to permits.
NOTIFICATION OF DISCOVERY OF PROTECTED UNDERWATER CULTURAL
HERITAGE - PART 3, DIVISION 2, CLAUSE 40
The requirement to report the discovery of shipwrecks or other under types of underwater
cultural heritage is an essential component of the regulatory regime established by the Bill.
The obligation to report the discovery of articles of underwater cultural heritage in clause 40
of the Bill helps persons recognise that in-situ cultural heritage in the marine environment has
the potential to be protected underwater cultural heritage. Without the obligation to report,
discoveries of underwater cultural heritage may not be reported and underwater cultural
heritage could be subject to adverse impact.
In practice, a limited community of people with technical expertise in diving or marine
survey are likely to discover and report discovery of in-situ cultural material in the marine
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environment. Generally, these individuals and companies have sufficient training and
education to identify cultural heritage. In shallower waters, people who find underwater
cultural heritage, such as a wrecked vessel or aircraft, would be able to recognise that it is of
an archaeological character based on the level of deterioration or the extent that it has become
part of the marine environment, for instance, the amount of coral cover and deposition of
sand. In other cases, the underwater cultural heritage may be detected as anomalies by
electronic remote sensing devices. A person in this case may not be aware of the specific
nature of the material but would have a clear understanding that it is cultural in nature and
should be reported. This is the case with commercial marine surveying and study where the
report of the discovery is provided through the supply of remote sensing data that can be
subsequently interpreted.
The public will be provided with detailed guidelines to help identify discoveries that may
require notification under the Bill. This guidance will be prepared and published following
enactment of the Bill. Detailed public information will also continue to be provided via the
Australian Government Department of the Environment and Energy website.
INCORPORATION OF DOCUMENTS - PART 5, CLAUSE 61
The protection of underwater cultural heritage is a matter of international concern.
Consequently, there may be international guidelines and conventions that will need to be
incorporated into the Rules in the future, such as the Annex rules to the UNESCO 2001
Convention on the Protection of the Underwater Cultural Heritage.
It is practically necessary for there to be the option to incorporate material in the Rules as in
force or existing from time to time. The types of documents that may be incorporated in the
Rules would be authoritative conventions and international guidelines. Any changes to these
documents would need to be incorporated from time to time to ensure regulated persons
clearly understand their obligations under the Rules, and that the Rules are consistent with
current international law or international best practice. It is intended that any external
material incorporated into the Rules will be made freely available. For this reason, the Bill
must include a contrary intention to section 14(2) of the Legislation Act, in order for there to
be sufficient flexibility to incorporate external material as in force or existing from time to
time into the Rules if necessary.
As the Rules, which will incorporate the external documents, will be a disallowable
instrument, there will be appropriate opportunities for the Parliament to scrutinise the
substance of incorporated documents and the manner of their incorporation. Additionally,
under section 41 of the Legislation Act, a House of the Parliament may, at any time while the
rules are subject to disallowance, require any document incorporated by reference in the
Rules to be made available for inspection by that House. Accordingly, there will be an
appropriate level of Parliamentary oversight and scrutiny of any documents incorporated in
the Rules in future.
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