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Queensland
TORRES STRAIT ISLANDER
CULTURAL HERITAGE
BILL 2003
Queensland
TORRES STRAIT ISLANDER CULTURAL
HERITAGE BILL 2003
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Division 2--Purpose of Act
4 Main purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 Principles underlying Act's main purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6 How main purpose of Act is to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . 11
Division 3--Interpretation
7 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8 Meaning of "Torres Strait Islander cultural heritage" . . . . . . . . . . . . . . . . . . 12
9 Meaning of "significant Torres Strait Islander area" . . . . . . . . . . . . . . . . . . . 12
10 Meaning of "significant Torres Strait Islander object" . . . . . . . . . . . . . . . . . 13
11 Extension of evidence of occupation to surroundings. . . . . . . . . . . . . . . . . . 13
12 Identifying significant Torres Strait Islander areas . . . . . . . . . . . . . . . . . . . . 13
13 Interpretation to support existing rights and interests . . . . . . . . . . . . . . . . . . 14
PART 2--OWNERSHIP, CUSTODIANSHIP AND POSSESSION OF
TORRES STRAIT ISLANDER CULTURAL HERITAGE
Division 1--Preliminary
14 Object and intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--Torres Strait Islander human remains
15 Ownership of Torres Strait Islander human remains . . . . . . . . . . . . . . . . . . . 15
16 Torres Strait Islander human remains in custody of State. . . . . . . . . . . . . . . 15
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Torres Strait Islander Cultural Heritage Bill 2003
17 Possession of Torres Strait Islander human remains . . . . . . . . . . . . . . . . . . . 16
18 Knowledge of Torres Strait Islander human remains . . . . . . . . . . . . . . . . . . 16
Division 3--Secret and sacred objects
19 Ownership and custody of secret or sacred object . . . . . . . . . . . . . . . . . . . . 17
Division 4--Other Torres Strait Islander cultural heritage
20 Ownership of Torres Strait Islander cultural heritage . . . . . . . . . . . . . . . . . . 18
21 Continued use of surface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Division 5--Role of Queensland Museum
22 Care of Torres Strait Islander cultural heritage . . . . . . . . . . . . . . . . . . . . . . . 19
PART 3--PROTECTION OF TORRES STRAIT ISLANDER
CULTURAL HERITAGE
Division 1--Key cultural heritage protection provisions
23 Cultural heritage duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Unlawful harm to Torres Strait Islander cultural heritage . . . . . . . . . . . . . . . 21
25 Prohibited excavation, relocation and taking away . . . . . . . . . . . . . . . . . . . . 22
26 Unlawful possession of Torres Strait Islander cultural heritage . . . . . . . . . . 23
27 Court may order costs of rehabilitation or restoration . . . . . . . . . . . . . . . . . 24
Division 2--Duty of care guidelines
28 Cultural heritage duty of care guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 3--Information about cultural heritage
29 Information protection provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
30 Putting cultural heritage management plan into effect . . . . . . . . . . . . . . . . . 26
31 Other activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 4--Protection of cultural heritage under action of Minister
32 Stop orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
33 Particular steps to preserve cultural heritage. . . . . . . . . . . . . . . . . . . . . . . . . 28
PART 4--NATIVE TITLE PARTIES, TORRES STRAIT ISLANDER
PARTIES AND TORRES STRAIT ISLANDER
CULTURAL HERITAGE BODIES
34 Native title party for an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
35 Torres Strait Islander party for an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
36 Registration as Torres Strait Islander cultural heritage body . . . . . . . . . . . . 30
37 Function of Torres Strait Islander cultural heritage body . . . . . . . . . . . . . . . 32
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Torres Strait Islander Cultural Heritage Bill 2003
PART 5--COLLECTION AND MANAGEMENT OF TORRES
STRAIT ISLANDER CULTURAL HERITAGE INFORMATION
Division 1--Torres Strait Islander Cultural Heritage Database
38 Establishment of database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
39 Purpose of establishing database. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
40 Placing information on database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
41 Taking information off database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
42 Availability of database to public generally . . . . . . . . . . . . . . . . . . . . . . . . . 33
43 Availability of database to Torres Strait Islander party . . . . . . . . . . . . . . . . . 33
44 Availability of database for cultural heritage duty of care purposes . . . . . . . 34
45 Availability of database to researcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 2--Torres Strait Islander Cultural Heritage Register
46 Establishment of register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
47 Purpose of establishing register. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
48 Recording information from cultural heritage study. . . . . . . . . . . . . . . . . . . 35
49 Information about cultural heritage management plans . . . . . . . . . . . . . . . . 36
50 Keeping register up-to-date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
51 Availability of register to public generally . . . . . . . . . . . . . . . . . . . . . . . . . . 37
PART 6--CULTURAL HERITAGE STUDIES
Division 1--Introduction
52 Requirements for carrying out cultural heritage study and
recording findings ................................... 37
53 Roles and responsibilities for carrying out cultural heritage study . . . . . . . . 37
54 Cultural heritage study guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Division 2--Preparing to carry out cultural heritage study
55 Reference to part of study area may be taken to include reference to whole 38
56 Giving of written notice (proposed study). . . . . . . . . . . . . . . . . . . . . . . . . . . 38
57 Basic information requirements for written notice (proposed study) . . . . . . 39
58 Additional requirements for notice to Torres Strait Islander
cultural heritage body ...................................... 40
59 Additional requirements for notice to Torres Strait Islander party . . . . . . . . 40
60 Additional requirements for notice to representative body . . . . . . . . . . . . . . 41
61 Giving of public notice (proposed study) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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Torres Strait Islander Cultural Heritage Bill 2003
62 Torres Strait Islander cultural heritage body response to written
notice and endorsement for study ............................ 42
63 Torres Strait Islander party response to written notice
and endorsement for study ................................. 43
64 Torres Strait Islander party response to public notice
and endorsement for study ................................. 43
65 Endorsement for study in absence of response . . . . . . . . . . . . . . . . . . . . . . . 43
Division 3--Carrying out cultural heritage study
66 Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
67 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
68 Engagement of cultural heritage assessors . . . . . . . . . . . . . . . . . . . . . . . . . . 44
69 Role of cultural heritage assessors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
70 Consultation supporting cultural heritage study . . . . . . . . . . . . . . . . . . . . . . 45
Division 4--Recording by chief executive
71 Giving of cultural heritage study to chief executive for recording . . . . . . . . 46
72 Consideration of cultural heritage study before recording . . . . . . . . . . . . . . 47
73 Requirements for recording cultural heritage study . . . . . . . . . . . . . . . . . . . 47
74 Recording or refusing to record findings of cultural heritage study . . . . . . . 48
Division 5--Objections, hearing and recommendation
75 Definitions for div 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
76 Objection to refusal to record findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
77 Tribunal's hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
78 Tribunal's recommendation to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 6--Recording by Minister
79 Recording or refusing to record findings of cultural heritage study . . . . . . . 52
PART 7--CULTURAL HERITAGE MANAGEMENT PLANS
Division 1--Introduction
80 When cultural heritage management plan is or may be required--div 2 . . . 53
81 Requirements for developing cultural heritage management plan
and having it approved--divs 3 to 7 .......................... 53
82 Responsibility for developing cultural heritage management plan . . . . . . . . 53
83 Voluntary development of cultural heritage management plan . . . . . . . . . . . 53
84 Approved cultural heritage management plan may not
require particular action .................................. 54
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Torres Strait Islander Cultural Heritage Bill 2003
85 Cultural heritage management plan guidelines . . . . . . . . . . . . . . . . . . . . . . . 54
Division 2--Protection of cultural heritage under
cultural heritage management plans
86 Application of div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
87 Cultural heritage management plan needed if EIS needed . . . . . . . . . . . . . . 54
88 Cultural heritage management plan may be needed if other
environmental authority needed ............................ 55
89 Cultural heritage management plan needed under IPA . . . . . . . . . . . . . . . . . 56
Division 3--Preparing to develop cultural heritage management plan
90 Reference to part of plan area may be taken to include reference to whole . 57
91 Giving of written notice (proposed plan) . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
92 Basic information requirements for written notice (proposed plan) . . . . . . . 58
93 Additional requirements for notice to Torres Strait Islander
cultural heritage body ..................................... 58
94 Additional requirements for notice to Torres Strait Islander party . . . . . . . . 59
95 Additional requirements for notice to representative body . . . . . . . . . . . . . . 59
96 Giving of public notice (proposed plan) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
97 Torres Strait Islander cultural heritage body response to written
notice and endorsement for plan ........................... 61
98 Torres Strait Islander party response to written notice
and endorsement for plan .................................. 61
99 Torres Strait Islander party response to public notice
and endorsement for plan ................................... 62
100 Becoming Torres Strait Islander party after written notice (proposed
plan) is given ............................................ 62
101 Endorsement for plan in absence of response . . . . . . . . . . . . . . . . . . . . . . . . 63
Division 4--Development of cultural heritage management plan
102 Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
103 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
104 Consultation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
105 Reaching agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
106 Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 5--Approval by chief executive
107 Chief executive approval of plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
108 Consideration of plan before approval if no endorsed party . . . . . . . . . . . . . 67
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Torres Strait Islander Cultural Heritage Bill 2003
109 Approving or refusing to approve plan if no endorsed party . . . . . . . . . . . . 67
Division 6--Objection or referral, hearing and recommendation
110 Definitions for div 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
111 Objection to tribunal to refusal to approve agreed plan . . . . . . . . . . . . . . . . 68
112 Sponsor may refer plan to tribunal after unsuccessful mediation . . . . . . . . . 68
113 Sponsor may refer plan to tribunal after failure to agree. . . . . . . . . . . . . . . . 69
114 Administrative details for objection or referral . . . . . . . . . . . . . . . . . . . . . . . 69
115 Substantive requirements for objection or referral . . . . . . . . . . . . . . . . . . . . 69
116 Tribunal's hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
117 Tribunal's recommendation to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
118 Reaching the recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
119 General time requirement for making recommendation . . . . . . . . . . . . . . . . 72
Division 7--Approval by Minister
120 Approving or refusing to approve plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
PART 8--INVESTIGATION AND ENFORCEMENT
Division 1--Authorised officers
121 Appointment and qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
122 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . . . . . . . . . 73
123 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
124 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
125 When authorised officer ceases to hold office . . . . . . . . . . . . . . . . . . . . . . . . 75
126 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
127 Return of identity card. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Division 2--Powers of authorised officers
Subdivision 1--Entry of places
128 Power to enter places. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Subdivision 2--Procedure for entry
129 Entry with consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
130 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
131 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
132 Special warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
133 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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Torres Strait Islander Cultural Heritage Bill 2003
Subdivision 3--Powers after entry
134 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
135 Failure to help authorised officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
136 Failure to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Subdivision 4--Power to seize evidence
137 Seizing evidence at a place that may be entered without consent
or warrant ......................................... 81
138 Seizing evidence at a place that may only be entered with consent
or warrant .............................................. 82
139 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
140 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
141 Power to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
142 Receipts for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
143 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
144 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Subdivision 5--Power to obtain information
145 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
146 Failure to give name or address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Division 3--General enforcement matters
147 Notice of damage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
148 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
149 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
150 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
151 Obstructing authorised officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
PART 9--MISCELLANEOUS PROVISIONS
152 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
153 Access to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
154 Advisory committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
155 Purchase or compulsory acquisition to protect cultural heritage . . . . . . . . . 89
156 Proceedings for an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
157 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
158 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
159 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
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Torres Strait Islander Cultural Heritage Bill 2003
PART 10--TRANSITIONAL PROVISIONS
160 Confirmation of ownership of Torres Strait Islander
cultural heritage before commencement ....................... 92
161 Foundation material for database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
162 Existing agreement for carrying out activity . . . . . . . . . . . . . . . . . . . . . . . . . 92
163 Permit under repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
164 Authority obtained before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . 93
165 Cultural heritage arrangements for project authorised
before commencement .................................... 93
166 Cultural heritage arrangements for project not authorised
before commencement .................................... 94
167 References to repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 96
DICTIONARY
2003
A BILL
FOR
An Act to make provision for Torres Strait Islander cultural heritage
s1 10 s5
Torres Strait Islander Cultural Heritage Bill 2003
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
Division 1--Introduction 3
1 Short title 4
This Act may be cited as the Torres Strait Islander Cultural Heritage 5
Act 2003. 6
2 Commencement 7
This Act commences on a day to be fixed by proclamation. 8
3 Act binds all persons 9
(1) This Act binds all persons including the State and, to the extent the 10
legislative power of the Parliament permits, the Commonwealth and the 11
other States. 12
(2) Nothing in this Act makes the State liable to be prosecuted for an 13
offence. 14
Division 2--Purpose of Act 15
4 Main purpose of Act 16
The main purpose of this Act is to provide effective recognition, 17
protection and conservation of Torres Strait Islander cultural heritage. 18
5 Principles underlying Act's main purpose 19
The following fundamental principles underlie this Act's main 20
purpose-- 21
s6 11 s6
Torres Strait Islander Cultural Heritage Bill 2003
(a) the recognition, protection and conservation of Torres Strait 1
Islander cultural heritage should be based on respect for Torres 2
Strait Islander knowledge, culture and customary practices; 3
(b) Torres Strait Islanders should be recognised as the primary 4
guardians, keepers and knowledge holders of Torres Strait 5
Islander cultural heritage; 6
(c) it is important to respect, preserve and maintain knowledge, 7
innovations and practices of Torres Strait Islander communities 8
and to promote understanding of Torres Strait Islander cultural 9
heritage; 10
(d) activities involved in recognition, protection and conservation of 11
Torres Strait Islander cultural heritage are important because they 12
allow Torres Strait Islanders to reaffirm their obligations to Island 13
custom; 14
(e) there is a need to establish timely and efficient processes for the 15
management of activities that may harm Torres Strait Islander 16
cultural heritage. 17
6 How main purpose of Act is to be achieved 18
For achieving effective recognition, protection and conservation of 19
Torres Strait Islander cultural heritage, this Act provides for the 20
following-- 21
(a) recognising Torres Strait Islander ownership of Torres Strait 22
Islander human remains wherever held; 23
(b) recognising Torres Strait Islander ownership of Torres Strait 24
Islander cultural heritage of a secret or sacred nature held in State 25
collections; 26
(c) recognising Torres Strait Islander ownership of Torres Strait 27
Islander cultural heritage that is lawfully taken away from an 28
area by a Torres Strait Islander party for the area; 29
(d) establishing a duty of care for activities that may harm Torres 30
Strait Islander cultural heritage; 31
(e) establishing powers of protection, investigation and enforcement; 32
(f) establishing a database and a register for recording Torres Strait 33
Islander cultural heritage; 34
s7 12 s9
Torres Strait Islander Cultural Heritage Bill 2003
(g) ensuring Torres Strait Islanders are involved in processes for 1
managing the recognition, protection and conservation of Torres 2
Strait Islander cultural heritage; 3
(h) establishing a process for the comprehensive study of Torres 4
Strait Islander cultural heritage; 5
(i) establishing processes for the timely and efficient management of 6
activities to avoid or minimise harm to Torres Strait Islander 7
cultural heritage. 8
Division 3--Interpretation 9
7 Definitions 10
The dictionary in the schedule defines particular words used in this Act. 11
8 Meaning of "Torres Strait Islander cultural heritage" 12
"Torres Strait Islander cultural heritage" is anything that is-- 13
(a) a significant Torres Strait Islander area in Queensland; or 14
(b) a significant Torres Strait Islander object; or 15
(c) evidence, of archaeological or historic significance, of Torres 16
Strait Islander occupation of an area of Queensland. 17
9 Meaning of "significant Torres Strait Islander area" 18
A "significant Torres Strait Islander area" is an area of particular 19
significance to Torres Strait Islanders because of either or both of the 20
following-- 21
(a) Island custom;1 22
1 Under the Acts Interpretation Act 1954, section 36 (Meaning of commonly used
words and expressions), "Island custom", known in the Torres Strait as Ailan
Kustom, means the body of customs, traditions, observances and beliefs of Torres
Strait Islanders generally or of a particular community or group of Torres Strait
Islanders, and includes any such customs, traditions, observances and beliefs
relating to particular persons, areas, objects or relationships
s 10 13 s 12
Torres Strait Islander Cultural Heritage Bill 2003
(b) the history, including contemporary history, of any Torres Strait 1
Islander party for the area. 2
10 Meaning of "significant Torres Strait Islander object" 3
A "significant Torres Strait Islander object" is an object of particular 4
significance to Torres Strait Islanders because of either or both of the 5
following-- 6
(a) Island custom; 7
(b) the history, including contemporary history, of a Torres Strait 8
Islander party for an area. 9
11 Extension of evidence of occupation to surroundings 10
If a particular object or structure is evidence of Torres Strait Islander 11
occupation, the area immediately surrounding the object or structure is also 12
evidence of Torres Strait Islander occupation to the extent the area can not 13
be separated from the object or structure without destroying or diminishing 14
the object or structure's significance as evidence of Torres Strait Islander 15
occupation. 16
12 Identifying significant Torres Strait Islander areas 17
(1) This section gives more information about identifying significant 18
Torres Strait Islander areas. 19
(2) For an area to be a significant Torres Strait Islander area, it is not 20
necessary for the area to contain markings or other physical evidence 21
indicating Torres Strait Islander occupation or otherwise denoting the 22
area's significance. 23
(3) For example, the area might be a ceremonial place, a burial place or 24
the site of a massacre. 25
(4) Also, if significant Torres Strait Islander objects exist in an area and 26
the significance of the objects is intrinsically linked with their location in 27
the area-- 28
(a) the existence of the objects in the area is enough on its own to 29
make the area a significant Torres Strait Islander area; and 30
s 13 14 s 14
Torres Strait Islander Cultural Heritage Bill 2003
(b) if it is reasonably appropriate under this Act, the immediate area 1
and the objects in it may be taken to be, collectively, a significant 2
Torres Strait Islander area. 3
(5) For identifying a significant Torres Strait Islander area, regard may 4
be had to authoritative anthropological, biogeographical, historical and 5
archaeological information. 6
13 Interpretation to support existing rights and interests 7
A provision of this Act must not be interpreted in a way that would allow 8
the provision to operate in a way that prejudices-- 9
(a) a right of ownership of a traditional group of Torres Strait 10
Islanders, or of a member of a traditional group of Torres Strait 11
Islanders, in Torres Strait Islander cultural heritage used or held 12
for traditional purposes under Island custom; or 13
(b) a person's enjoyment or use of, or free access to, Torres Strait 14
Islander cultural heritage, if-- 15
(i) the person usually lives according to Island custom as it 16
relates to a particular group of Torres Strait Islanders; and 17
(ii) the access, enjoyment or use is sanctioned by the Island 18
custom; or 19
(c) native title rights and interests. 20
PART 2--OWNERSHIP, CUSTODIANSHIP AND 21
POSSESSION OF TORRES STRAIT ISLANDER 22
CULTURAL HERITAGE 23
Division 1--Preliminary 24
14 Object and intent 25
(1) The object of this part is to make rules about ownership, 26
custodianship and possession of Torres Strait Islander cultural heritage. 27
s 15 15 s 16
Torres Strait Islander Cultural Heritage Bill 2003
(2) The basic intent underlying the rules stated in this part is that Torres 1
Strait Islander cultural heritage should be protected. 2
(3) A supporting intent is that, as far as practicable, Torres Strait Islander 3
cultural heritage should be owned and protected by Torres Strait Islanders 4
with traditional or familial links to the cultural heritage if it is comprised of 5
any of the following-- 6
(a) Torres Strait Islander human remains; 7
(b) secret or sacred objects; 8
(c) Torres Strait Islander cultural heritage lawfully taken away from 9
an area. 10
(4) Another supporting intent is that Torres Strait Islander cultural 11
heritage of the type mentioned in subsection (3)(a) or (b) that is in the 12
custody of the State, including the Queensland Museum, should continue 13
to be protected by the State until it can be transferred into the protection of 14
its Torres Strait Islander owners. 15
Division 2--Torres Strait Islander human remains 16
15 Ownership of Torres Strait Islander human remains 17
(1) On the commencement of this section, Torres Strait Islanders who 18
have a traditional or familial link with Torres Strait Islander human remains 19
in existence immediately before the commencement become the owners of 20
the human remains if they are not already the owners. 21
(2) Subsection (1) applies regardless of who may have owned the Torres 22
Strait Islander human remains before the commencement of this section. 23
16 Torres Strait Islander human remains in custody of State 24
(1) This section applies to Torres Strait Islander human remains if the 25
human remains are in the custody of an entity that represents or is the State. 26
(2) The persons who own the human remains may at any time ask the 27
entity-- 28
(a) to continue to be the custodian of the human remains; or 29
(b) to return the human remains to them. 30
s 17 16 s 18
Torres Strait Islander Cultural Heritage Bill 2003
(3) If the entity is satisfied the persons making the request under 1
subsection (2) are the owners of the human remains, the entity must 2
comply with the request to the greatest practicable extent. 3
(4) The persons who own the human remains are not limited to making 4
only 1 request under subsection (2). 5
6
Example--
7
The owners could ask for the Queensland Museum to continue its custody of the human
8
remains while they make suitable arrangements for dealing with the human remains, at
9
which time they could ask for the human remains to be returned to them.
17 Possession of Torres Strait Islander human remains 10
(1) This section applies to a person, other than the State, if the person has 11
in the person's possession Torres Strait Islander human remains that were 12
in existence immediately before the commencement of this section and the 13
person does not have the necessary traditional or familial links with the 14
human remains to be the owner of the human remains. 15
(2) The person must take all reasonable steps to ensure that the human 16
remains are taken into the custody of the chief executive as soon as 17
practicable. 18
Maximum penalty for subsection (2)--200 penalty units. 19
18 Knowledge of Torres Strait Islander human remains 20
(1) This section applies to a person if the person-- 21
(a) knows of the existence and location of Torres Strait Islander 22
human remains, but does not own the human remains or have 23
possession of them; and 24
(b) knows, or ought reasonably to know, the human remains are, or 25
are reasonably likely to be, Torres Strait Islander human remains; 26
and 27
(c) knows or suspects-- 28
(i) that the chief executive does not know of the existence of 29
the human remains; or 30
(ii) that the chief executive knows of the existence of the human 31
remains, but does not know the human remains are, or are 32
s 19 17 s 19
Torres Strait Islander Cultural Heritage Bill 2003
reasonably likely to be, Torres Strait Islander human 1
remains. 2
(2) The person must-- 3
(a) as soon as practicable, advise the chief executive of the existence 4
and location of the human remains; and 5
(b) give the chief executive all details about the nature and location 6
of the human remains the chief executive reasonably requires. 7
Maximum penalty--100 penalty units. 8
(3) For subsection (2), the obligation to advise the chief executive and to 9
give the chief executive details must be complied with-- 10
(a) if all the circumstances giving rise to the obligation arose before 11
the commencement of this section--as soon as practicable after 12
the commencement; or 13
(b) if all the circumstances giving rise to the obligation arise after the 14
commencement, or if the circumstances arose partly before the 15
commencement and arise partly after the commencement--as 16
soon as practicable after all the circumstances apply. 17
(4) For subsection (1)(c), the chief executive is taken to be in possession 18
of any knowledge that was ever in the possession of the Minister mentioned 19
in section 352 of the repealed Act. 20
Division 3--Secret and sacred objects 21
19 Ownership and custody of secret or sacred object 22
(1) This section applies to an object that is Torres Strait Islander cultural 23
heritage if-- 24
(a) the object is a secret or sacred object; and 25
26
Example of secret or sacred object--
27
a ceremonial item
(b) the object is, immediately before the commencement of this 28
section, in the custody of an entity that represents or is the State, 29
2 Section 35 (Duties respecting burial remains) of the repealed Act
s 20 18 s 20
Torres Strait Islander Cultural Heritage Bill 2003
or after the commencement comes into the custody of an entity 1
that represents or is the State. 2
(2) The Torres Strait Islanders who have a traditional or familial link 3
with the object, if they are not already the owners, become the owners of 4
the object-- 5
(a) if the object was in the custody of the entity immediately before 6
the commencement of this section--on the commencement; or 7
(b) otherwise--when the object comes into the custody of the entity. 8
(3) The persons who own the object may at any time ask the entity-- 9
(a) to continue to be the custodian of the object; or 10
(b) to return the object to them. 11
(4) If the entity is satisfied the persons making the request under 12
subsection (3) are the owners of the object, the entity must comply with the 13
request to the greatest practicable extent. 14
(5) The persons who own the object are not limited to making only 15
1 request under subsection (3). 16
17
Example--
18
The owners could ask for the Queensland Museum to continue its custody of an object
19
while they make suitable arrangements for dealing with the object, at which time they
20
could ask for the object to be returned to them.
Division 4--Other Torres Strait Islander cultural heritage 21
20 Ownership of Torres Strait Islander cultural heritage 22
(1) The following Torres Strait Islander cultural heritage is not in the 23
ownership of the State-- 24
(a) human remains and secret or sacred objects owned by Torres 25
Strait Islanders under division 2 or 3; 26
(b) Torres Strait Islander cultural heritage passing into the ownership 27
of a Torres Strait Islander party under this Act; 28
(c) Torres Strait Islander cultural heritage owned by a person whose 29
ownership is confirmed under a provision of this Act; 30
(d) Torres Strait Islander cultural heritage owned by a person to 31
whom ownership is lawfully transferred. 32
s 21 19 s 22
Torres Strait Islander Cultural Heritage Bill 2003
(2) Otherwise, the State owns Torres Strait Islander cultural heritage. 1
(3) Subsection (2) applies to an object or evidence that is Torres Strait 2
Islander cultural heritage even if the object or evidence-- 3
(a) forms, or has previously formed, part of land; or 4
(b) is located, or has previously been located, in, on or under land. 5
(4) Subsections (2) and (3) do not operate to give the State ownership 6
of-- 7
(a) land in which is situated an object or evidence that becomes 8
owned by the State under subsection (2); or 9
(b) any other land. 10
21 Continued use of surface 11
(1) This section applies if Torres Strait Islander cultural heritage is 12
located on the surface of land, and-- 13
(a) under the tenure on which the land is held, the owner or occupier 14
of the land is entitled to the use and enjoyment of the surface of 15
the land; or 16
(b) a person is otherwise entitled to the use and enjoyment of the 17
surface of the land. 18
(2) Despite the existence of the Torres Strait Islander cultural heritage, 19
the owner or occupier or other person is entitled to the use and enjoyment 20
of the land to the extent that the person does not unlawfully harm the 21
cultural heritage. 22
Division 5--Role of Queensland Museum 23
22 Care of Torres Strait Islander cultural heritage 24
(1) The Queensland Museum may act under the Queensland Museum 25
Act 1970 in relation to all Torres Strait Islander cultural heritage in its 26
custody. 27
(2) Subsection (1) applies subject to the particular requirements of this 28
Act about the ownership, custody or protection of Torres Strait Islander 29
cultural heritage. 30
s 23 20 s 23
Torres Strait Islander Cultural Heritage Bill 2003
(3) The Queensland Museum may at any time accept custody of Torres 1
Strait Islander cultural heritage. 2
PART 3--PROTECTION OF TORRES STRAIT 3
ISLANDER CULTURAL HERITAGE 4
Division 1--Key cultural heritage protection provisions 5
23 Cultural heritage duty of care 6
(1) A person who carries out an activity must take all reasonable and 7
practicable measures to ensure the activity does not harm Torres Strait 8
Islander cultural heritage (the "cultural heritage duty of care"). 9
Maximum penalty-- 10
(a) for an individual--1 000 penalty units; 11
(b) for a corporation--10 000 penalty units. 12
(2) Without limiting the matters that may be considered by a court 13
required to decide whether a person has complied with the cultural heritage 14
duty of care in carrying out an activity, the court may consider the 15
following-- 16
(a) the nature of the activity, and the likelihood of its causing harm 17
to Torres Strait Islander cultural heritage; 18
(b) the nature of the Torres Strait Islander cultural heritage likely to 19
be harmed by the activity; 20
(c) the extent to which the person consulted with Torres Strait 21
Islander parties about the carrying out of the activity, and the 22
results of the consultation; 23
(d) whether the person carried out a study or survey, of any type, of 24
the area affected by the activity to find out the location and extent 25
of Torres Strait Islander cultural heritage, and the extent of the 26
study or survey; 27
(e) whether the person searched the database and register for 28
information about the area affected by the activity; 29
s 24 21 s 24
Torres Strait Islander Cultural Heritage Bill 2003
(f) the extent to which the person has complied with cultural 1
heritage duty of care guidelines; 2
(g) the nature and extent of past uses in the area affected by the 3
activity. 4
(3) A person who carries out an activity is taken to have complied with 5
the cultural heritage duty of care in relation to Torres Strait Islander 6
cultural heritage if-- 7
(a) the person is acting-- 8
(i) under the authority of another provision of this Act that 9
applies to the Torres Strait Islander cultural heritage; or 10
(ii) under an approved cultural heritage management plan that 11
applies to the Torres Strait Islander cultural heritage; or 12
(iii) under a native title agreement or another agreement with a 13
Torres Strait Islander party, unless the Torres Strait Islander 14
cultural heritage is expressly excluded from being subject to 15
the agreement; or 16
(iv) in compliance with cultural heritage duty of care guidelines; 17
or 18
(v) in compliance with native title protection conditions, but 19
only if the cultural heritage is expressly or impliedly the 20
subject of the conditions; or 21
(b) the person owns the Torres Strait Islander cultural heritage, or is 22
acting with the owner's agreement; or 23
(c) the activity is necessary because of an emergency, including for 24
example, a bushfire or other natural disaster. 25
24 Unlawful harm to Torres Strait Islander cultural heritage 26
(1) A person must not harm Torres Strait Islander cultural heritage if the 27
person knows or ought reasonably to know that it is Torres Strait Islander 28
cultural heritage. 29
Maximum penalty-- 30
(a) for an individual-- 31
(i) if the Torres Strait Islander cultural heritage is a registered 32
significant area or registered significant 33
object--1 000 penalty units or 2 years imprisonment; or 34
s 25 22 s 25
Torres Strait Islander Cultural Heritage Bill 2003
(ii) otherwise--1 000 penalty units; 1
(b) for a corporation--10 000 penalty units. 2
(2) A person who harms Torres Strait Islander cultural heritage does not 3
commit an offence under subsection (1) if-- 4
(a) the person is acting-- 5
(i) under the authority of another provision of this Act that 6
applies to the Torres Strait Islander cultural heritage; or 7
(ii) under an approved cultural heritage management plan that 8
applies to the Torres Strait Islander cultural heritage; or 9
(iii) under a native title agreement or another agreement with a 10
Torres Strait Islander party, unless the Torres Strait Islander 11
cultural heritage is expressly excluded from being subject to 12
the agreement; or 13
(iv) in compliance with cultural heritage duty of care guidelines; 14
or 15
(v) in compliance with the cultural heritage duty of care; or 16
(vi) in compliance with native title protection conditions, but 17
only if the Torres Strait Islander cultural heritage is 18
expressly or impliedly the subject of the conditions; or 19
(b) the person owns the Torres Strait Islander cultural heritage, or is 20
acting with the owner's agreement; or 21
(c) the harm is the result of doing an act that is necessary because of 22
an emergency, including for example, a bushfire or other natural 23
disaster. 24
(3) For subsection (1), it does not matter whether the circumstances of 25
the person's knowledge arose before the commencement of this section, or 26
arise after the commencement, or arose partly before the commencement 27
and arise partly after the commencement. 28
25 Prohibited excavation, relocation and taking away 29
(1) A person must not excavate, relocate or take away Torres Strait 30
Islander cultural heritage if the person knows or ought reasonably to know 31
that it is Torres Strait Islander cultural heritage. 32
Maximum penalty-- 33
s 26 23 s 26
Torres Strait Islander Cultural Heritage Bill 2003
(a) for an individual--1 000 penalty units; 1
(b) for a corporation--10 000 penalty units. 2
(2) A person who excavates, relocates or takes away Torres Strait 3
Islander cultural heritage does not commit an offence under subsection (1) 4
if-- 5
(a) the person is acting-- 6
(i) under the authority of another provision of this Act that 7
applies to the Torres Strait Islander cultural heritage; or 8
(ii) under an approved cultural heritage management plan that 9
applies to the Torres Strait Islander cultural heritage; or 10
(iii) under a native title agreement or another agreement with a 11
Torres Strait Islander party, unless the Torres Strait Islander 12
cultural heritage is expressly excluded from being subject to 13
the agreement; or 14
(iv) in compliance with cultural heritage duty of care guidelines; 15
or 16
(v) in compliance with the cultural heritage duty of care; or 17
(vi) in compliance with native title protection conditions, but 18
only if the Torres Strait Islander cultural heritage is 19
expressly or impliedly the subject of the conditions; or 20
(b) the person owns the Torres Strait Islander cultural heritage, or is 21
acting with the owner's agreement; or 22
(c) the excavation, relocation or taking away is necessary because of 23
an emergency, including for example, a bushfire or other natural 24
disaster. 25
(3) For subsection (1), it does not matter whether the circumstances of 26
the person's knowledge arose before the commencement of this section, or 27
arise after the commencement, or arose partly before the commencement 28
and arise partly after the commencement. 29
26 Unlawful possession of Torres Strait Islander cultural heritage 30
(1) A person must not have in the person's possession an object that is 31
Torres Strait Islander cultural heritage if the person knows or ought 32
reasonably to know that the object is Torres Strait Islander cultural 33
heritage. 34
s 27 24 s 27
Torres Strait Islander Cultural Heritage Bill 2003
Maximum penalty-- 1
(a) for an individual--1 000 penalty units; 2
(b) for a corporation--10 000 penalty units. 3
(2) A person who has in the person's possession an object that is Torres 4
Strait Islander cultural heritage does not commit an offence under 5
subsection (1) if-- 6
(a) the person is acting-- 7
(i) under the authority of another provision of this Act that 8
applies to the object; or 9
(ii) under an approved cultural heritage management plan that 10
applies to the object; or 11
(iii) under a native title agreement or another agreement with a 12
Torres Strait Islander party, unless the object is expressly 13
excluded from being subject to the agreement; or 14
(iv) in compliance with cultural heritage duty of care guidelines; 15
or 16
(v) in compliance with the cultural heritage duty of care; or 17
(vi) in compliance with native title protection conditions, but 18
only if the object is expressly or impliedly the subject of the 19
conditions; or 20
(b) the person owns the object, or is acting with the owner's 21
agreement; or 22
(c) the person's possession of the object is necessary because of an 23
emergency, including for example, a bushfire or other natural 24
disaster. 25
(3) For subsection (1), it does not matter whether the circumstances of 26
the person's knowledge arose before the commencement of this section, or 27
arise after the commencement, or arose partly before the commencement 28
and arise partly after the commencement. 29
(4) This section does not apply to Torres Strait Islander human remains. 30
27 Court may order costs of rehabilitation or restoration 31
(1) On a conviction of a person for an offence under this division 32
involving the unlawful harming or possessing of Torres Strait Islander 33
s 28 25 s 29
Torres Strait Islander Cultural Heritage Bill 2003
cultural heritage, the court may, if considered appropriate, order the person 1
to pay to the State or another appropriate entity an amount for or towards-- 2
(a) the cost of any repair or restoration of the Torres Strait Islander 3
cultural heritage needing to be carried out; and 4
(b) the cost of any repair or restoration of anything else that is not 5
itself the Torres Strait Islander cultural heritage, but that is 6
associated with the Torres Strait Islander cultural heritage and 7
also needs to be repaired or restored because of the offence. 8
(2) In this section-- 9
"conviction" includes a plea of guilty or a finding of guilt by a court, even 10
though a conviction is not recorded. 11
Division 2--Duty of care guidelines 12
28 Cultural heritage duty of care guidelines 13
(1) The Minister may by gazette notice notify guidelines ("cultural 14
heritage duty of care guidelines") identifying reasonable and practicable 15
measures for ensuring activities are managed to avoid or minimise harm to 16
Torres Strait Islander cultural heritage. 17
(2) In formulating cultural heritage duty of care guidelines, the Minister 18
may consult with the following-- 19
(a) Torres Strait Islander groups; 20
(b) industry groups; 21
(c) local governments; 22
(d) other persons the Minister considers appropriate. 23
Division 3--Information about cultural heritage 24
29 Information protection provision 25
(1) This section applies to a person who, under this Act, submits to the 26
chief executive or the Minister a report or other document about Torres 27
Strait Islander cultural heritage matters. 28
s 30 26 s 31
Torres Strait Islander Cultural Heritage Bill 2003
(2) The person must not include in the report or other document 1
knowledge or information given to or otherwise acquired by the person 2
if-- 3
(a) the person knows the knowledge or information is of a secret or 4
sacred nature; and 5
(b) the Torres Strait Islanders in whose understanding the knowledge 6
or information is of a secret or sacred nature have not agreed to 7
its inclusion in the report or other document. 8
Maximum penalty-- 9
(a) for an individual--100 penalty units; 10
(b) for a corporation--1 000 penalty units. 11
30 Putting cultural heritage management plan into effect 12
(1) A person who is involved in putting an approved cultural heritage 13
management plan into effect must take all reasonable steps to ensure the 14
chief executive is advised about all Torres Strait Islander cultural heritage 15
revealed to exist because of any activity carried out under the plan. 16
Maximum penalty-- 17
(a) for an individual--100 penalty units; 18
(b) for a corporation--1 000 penalty units. 19
(2) Subsection (1) does not require the giving of advice to the chief 20
executive if giving the advice would be a contravention of the information 21
protection provision. 22
31 Other activities 23
(1) A person who is involved in carrying out an activity, other than an 24
activity under an approved cultural heritage management plan, may advise 25
the chief executive of Torres Strait Islander cultural heritage revealed to 26
exist because of the activity. 27
(2) Subsection (1) does not authorise the giving of advice to the chief 28
executive if giving the advice would be a contravention of the information 29
protection provision. 30
s 32 27 s 32
Torres Strait Islander Cultural Heritage Bill 2003
Division 4--Protection of cultural heritage under action of Minister 1
32 Stop orders 2
(1) This section applies if the Minister is satisfied there are reasonable 3
grounds for concluding-- 4
(a) a person is carrying out or is about to carry out an activity; and 5
(b) either or both of the following apply-- 6
(i) in carrying out the activity, the person is or will be harming 7
Torres Strait Islander cultural heritage; 8
(ii) the carrying out of the activity is having or will have a 9
significant adverse impact on the cultural heritage value of 10
Torres Strait Islander cultural heritage. 11
(2) The Minister may give the person a stop order for the activity. 12
(3) The stop order must be given to the person-- 13
(a) by giving it to the person personally; or 14
(b) if it is not reasonably practicable to give it to the person 15
personally--by fixing it in a prominent position at the place 16
where the activity is being carried out or is about to be carried 17
out. 18
(4) The stop order-- 19
(a) operates from when it is given to the person under subsection (3); 20
and 21
(b) unless it is revoked sooner, continues in force for 30 days from 22
when it is given to the person, or for a shorter period stated in the 23
order. 24
(5) The Minister may give 1 further stop order of not more than 30 days 25
under this section for the person's activity. 26
(6) A person must not knowingly contravene a stop order given to a 27
person under this section. 28
Maximum penalty--17 000 penalty units. 29
(7) The penalty amount mentioned in subsection (6) is the maximum 30
penalty amount that may be imposed for an offence under the subsection, 31
even if the offence is committed by a corporation. 32
s 33 28 s 34
Torres Strait Islander Cultural Heritage Bill 2003
(8) A stop order under this section is ineffective in its application to an 1
activity if the activity is the subject of an injunction granted in the exercise 2
of the exclusive jurisdiction the tribunal has for cultural heritage matters 3
under the Land and Resources Tribunal Act 1999, section 53.3 4
33 Particular steps to preserve cultural heritage 5
The Minister may-- 6
(a) for the State, acquire by purchase or gift Torres Strait Islander 7
cultural heritage for the purpose of its preservation; and 8
(b) cause structures to be erected, and other steps to be taken, that 9
are necessary or desirable to preserve the Torres Strait Islander 10
cultural heritage. 11
PART 4--NATIVE TITLE PARTIES, TORRES STRAIT 12
ISLANDER PARTIES AND TORRES STRAIT ISLANDER 13
CULTURAL HERITAGE BODIES 14
34 Native title party for an area 15
(1) Each of the following is a "native title party" for an area-- 16
(a) a registered native title claimant for the area; 17
(b) a person who, at any time after the commencement of this 18
section, was a registered native title claimant for the area, but 19
only if-- 20
(i) the person's claim has failed, but there is no other registered 21
native title claimant for the area, and there is not, and never 22
has been, a native title holder for the area; or 23
(ii) the person has surrendered the person's native title under an 24
indigenous land use agreement registered on the Register of 25
Indigenous Land Use Agreements; or 26
3 Land and Resources Tribunal Act 1999, section 53 (Exclusive jurisdiction for certain
cultural heritage matters)
s 35 29 s 35
Torres Strait Islander Cultural Heritage Bill 2003
(iii) the person's native title has been compulsorily acquired or 1
has otherwise been extinguished; 2
(c) a registered native title holder for the area; 3
(d) a person who was a registered native title holder for the area, but 4
only if-- 5
(i) the person has surrendered the person's native title under an 6
indigenous land use agreement registered on the Register of 7
Indigenous Land Use Agreements; or 8
(ii) the person's native title has been compulsorily acquired or 9
has otherwise been extinguished. 10
(2) If a person would be a native title party under subsection (1)(b) but 11
the person is no longer alive, the native title party is instead taken to be the 12
native title claim group who, under the Commonwealth Native Title Act, 13
authorised the person to make the relevant native title determination 14
application. 15
35 Torres Strait Islander party for an area 16
(1) A native title party for an area is a "Torres Strait Islander party" 17
for the area. 18
(2) Subsection (3) applies to a native title party for an area who-- 19
(a) is or was a registered native title claimant; or 20
(b) is the native title claim group who authorised a person who is no 21
longer alive, but who was a registered native title claimant, to 22
make a native title determination application. 23
(3) The native title party is a "Torres Strait Islander party" for the 24
whole area included within the outer boundaries of the area in relation to 25
which the application was made under the Commonwealth Native Title Act 26
for a determination of native title, regardless of the nature and extent of the 27
claimant's claims in relation to any particular part of the whole area. 28
(4) Subsection (5) applies to a native title party for an area who is or was 29
a registered native title holder the subject of a determination of native title 30
under the Commonwealth Native Title Act. 31
(5) The native title party is a "Torres Strait Islander party" for the 32
whole area included within the outer boundaries of the area in relation to 33
which the application for the determination was made, regardless of the 34
s 36 30 s 36
Torres Strait Islander Cultural Heritage Bill 2003
extent to which native title was found to exist in relation to any particular 1
part of the whole area. 2
(6) However, a native title party to whom subsection (5) applies is not 3
a "Torres Strait Islander party" for a part of the area if-- 4
(a) native title was not found to exist in relation to the part; and 5
(b) there is a registered native title claimant for the part. 6
(7) If there is no native title party for an area, a person is a "Torres 7
Strait Islander party" for the area if-- 8
(a) the person is a Torres Strait Islander with particular knowledge 9
about traditions, observances, customs or beliefs associated with 10
the area; and 11
(b) the person-- 12
(i) has responsibility under Island custom for some or all of the 13
area, or for significant Torres Strait Islander objects located 14
or originating in the area; or 15
(ii) is a member of a family or clan group that is recognised as 16
having responsibility under Island custom for some or all of 17
the area, or for significant Torres Strait Islander objects 18
located or originating in the area. 19
36 Registration as Torres Strait Islander cultural heritage body 20
(1) The Minister may, on the application of a corporation, register the 21
corporation as a Torres Strait Islander cultural heritage body for an area. 22
(2) The Minister must not register a corporation as a Torres Strait 23
Islander cultural heritage body for an area if there is currently another 24
corporation registered as a Torres Strait Islander cultural heritage body for 25
the area or any part of the area. 26
(3) However, the Minister may register a corporation (the "new 27
corporation") as a Torres Strait Islander cultural heritage body for an area 28
even though there is currently another corporation (the "registered 29
corporation") registered as a Torres Strait Islander cultural heritage body 30
for the area or any part of the area if-- 31
(a) the new corporation's registration is only for the purposes of a 32
particular project; and 33
s 36 31 s 36
Torres Strait Islander Cultural Heritage Bill 2003
(b) the registered corporation has given written agreement to the new 1
corporation's registration for the purposes of the project; and 2
(c) the registration provides that the registration is effective only 3
until the project finishes. 4
(4) The Minister may register a corporation as a Torres Strait Islander 5
cultural heritage body for an area only if the Minister is satisfied that-- 6
(a) the corporation-- 7
(i) is an appropriate body to identify Torres Strait Islander 8
parties for the area; and 9
(ii) has the capacity to identify Torres Strait Islander parties for 10
the area; and 11
(b) either-- 12
(i) Torres Strait Islander parties for the area that are native title 13
parties for the area agree the corporation should be 14
registered; or 15
(ii) if there is no Torres Strait Islander party for the area that is a 16
native title party for the area--there is substantial agreement 17
among the Torres Strait Islander parties for the area that the 18
corporation should be registered. 19
20
Examples of corporations that may be appropriate to be registered--
21
a registered native title body corporate, a representative body that is a corporation, a
22
Torres Strait Islander body incorporated for furthering the interests of Torres Strait
23
Islanders in relation to land or cultural matters
(5) In deciding whether to register a corporation as the Torres Strait 24
Islander cultural heritage body for an area, the Minister may do any of the 25
following-- 26
(a) consult with Torres Strait Islander parties for the area or parts of 27
the area; 28
(b) advertise for submissions about the proposed registration of the 29
corporation; 30
(c) anything else the Minister considers necessary to inform himself 31
or herself. 32
(6) The Minister may cancel the registration of a corporation as the 33
Torres Strait Islander cultural heritage body for an area if the Minister is no 34
longer satisfied about the matters mentioned in subsection (4) in relation to 35
the corporation. 36
s 37 32 s 39
Torres Strait Islander Cultural Heritage Bill 2003
(7) In this section-- 1
"register", a corporation, means record the corporation in the register. 2
37 Function of Torres Strait Islander cultural heritage body 3
(1) The function of a Torres Strait Islander cultural heritage body for an 4
area is to identify, for the benefit of a person who needs to know under this 5
Act, the Torres Strait Islander parties for the area or for a particular part of 6
the area. 7
(2) The Minister may give a Torres Strait Islander cultural heritage body 8
for an area the financial or other help the body needs to carry out its 9
function. 10
PART 5--COLLECTION AND MANAGEMENT OF 11
TORRES STRAIT ISLANDER CULTURAL HERITAGE 12
INFORMATION 13
Division 1--Torres Strait Islander Cultural Heritage Database 14
38 Establishment of database 15
(1) The chief executive must establish and keep the Torres Strait Islander 16
Cultural Heritage Database. 17
(2) The chief executive may keep the database in the form or forms the 18
chief executive considers to be the most appropriate in the circumstances 19
for achieving the purpose of establishing the database. 20
39 Purpose of establishing database 21
(1) The purpose of establishing the database is to assemble, in a central 22
and accessible location, information about Torres Strait Islander cultural 23
heritage. 24
(2) The database is intended to be a research and planning tool to help 25
Torres Strait Islander parties, researchers and other persons in their 26
s 40 33 s 43
Torres Strait Islander Cultural Heritage Bill 2003
consideration of the Torres Strait Islander cultural heritage values of 1
particular areas. 2
(3) The placing of information on the database is not intended to be 3
conclusive about whether the information is up-to-date, comprehensive or 4
otherwise accurate. 5
40 Placing information on database 6
(1) The chief executive may place information on the database to the 7
extent the chief executive considers appropriate, having regard especially 8
to the consistency of the information with existing anthropological, 9
biogeographical, historical and archaeological information. 10
(2) Information the chief executive places on the database may be either 11
information another person asks the chief executive to place on the 12
database or information the chief executive already holds. 13
41 Taking information off database 14
(1) The chief executive may take information off the database if the chief 15
executive is satisfied the information has been recorded in error. 16
(2) However, before acting under subsection (1) to take information 17
about Torres Strait Islander cultural heritage for a particular area off the 18
database, the chief executive must, to the extent it is reasonably practicable 19
to do so, consult with any Torres Strait Islander party for the area. 20
42 Availability of database to public generally 21
The chief executive must not give access to the database generally. 22
43 Availability of database to Torres Strait Islander party 23
(1) This section applies if a Torres Strait Islander party for an area seeks 24
information from the database. 25
(2) The chief executive must give the Torres Strait Islander party 26
information from the database to the extent that, in the chief executive's 27
opinion, the information on the database relates to the area. 28
s 44 34 s 46
Torres Strait Islander Cultural Heritage Bill 2003
44 Availability of database for cultural heritage duty of care 1
purposes 2
(1) This section applies if a person carrying out an activity, including for 3
example a land user, seeks information from the database. 4
(2) The chief executive must give the person information from the 5
database if, in the chief executive's opinion, the person has a particular 6
need to be aware of the information for satisfying the person's cultural 7
heritage duty of care. 8
(3) However, the person does not necessarily comply with the person's 9
cultural heritage duty of care only because the person has consulted the 10
database. 11
(4) If information is to be given to the person under subsection (2), the 12
information may be given to a nominee or professional advisor acting for 13
the person. 14
45 Availability of database to researcher 15
(1) This section applies if a researcher into Torres Strait Islander cultural 16
heritage seeks information from the database. 17
(2) The chief executive may give the researcher information from the 18
database to the extent that, in the chief executive's opinion, the information 19
on the database relates to the research. 20
Division 2--Torres Strait Islander Cultural Heritage Register 21
46 Establishment of register 22
(1) The chief executive must establish and keep the Torres Strait Islander 23
Cultural Heritage Register. 24
(2) The chief executive may keep the register in the form or forms the 25
chief executive considers to be the most appropriate in the circumstances 26
for-- 27
(a) achieving the purpose of establishing the register; and 28
(b) ensuring the register otherwise complies with the requirements of 29
this division. 30
s 47 35 s 48
Torres Strait Islander Cultural Heritage Bill 2003
47 Purpose of establishing register 1
(1) The purpose of establishing the register is to assemble in a central 2
and accessible location-- 3
(a) information contained in cultural heritage studies; and 4
(b) information about whether particular areas have been the subject 5
of cultural heritage management plans; and 6
(c) information about Torres Strait Islander cultural heritage bodies; 7
and 8
(d) other information necessary to help the consideration of Torres 9
Strait Islander cultural heritage, including for example addresses 10
for service of Torres Strait Islander parties. 11
(2) The register is intended to be-- 12
(a) a depository for information for consideration for land use and 13
land use planning, including, for example, for local government 14
planning schemes and for regional planning strategies; and 15
(b) a research and planning tool to help people in their consideration 16
of the Torres Strait Islander cultural heritage values of particular 17
objects and areas. 18
48 Recording information from cultural heritage study 19
(1) This section applies if, under part 6, the chief executive or Minister 20
records in the register the findings of a cultural heritage study. 21
(2) The chief executive or Minister must record-- 22
(a) a description of the cultural heritage study adequate to 23
distinguish it from other cultural heritage studies; and 24
(b) a description of the study area, including, if necessary for 25
accurately locating the study area, a plan of the area and a 26
detailed description of its boundaries; and 27
(c) a description of all Torres Strait Islander cultural heritage that has 28
been identified in the study area and a description of its location; 29
and 30
(d) in general terms, the reasons anything identified as Torres Strait 31
Islander cultural heritage has been so identified; and 32
s 49 36 s 49
Torres Strait Islander Cultural Heritage Bill 2003
(e) if the study makes recommendations for the management of 1
Torres Strait Islander cultural heritage identified in the 2
study--the recommendations; and 3
(f) for each area or object assessed as a significant Torres Strait 4
Islander area or significant Torres Strait Islander object--the 5
name of each Torres Strait Islander party that assessed the area or 6
object as a significant Torres Strait Islander area or significant 7
Torres Strait Islander object; and 8
(g) the name and contact details of each endorsed party for the study; 9
and 10
(h) the name of each endorsed party for the study who did not take 11
part in the carrying out of the study; and 12
(i) the name and contact details of each Torres Strait Islander 13
cultural heritage body for the study area; and 14
(j) the name and contact details of each cultural heritage assessor for 15
the study; and 16
(k) when the study was completed. 17
49 Information about cultural heritage management plans 18
(1) The chief executive must record in the register identifying details for 19
each cultural heritage management plan approved, or in the process of 20
being developed, under this Act. 21
(2) The chief executive must arrange the register in a way giving the 22
persons searching the register reasonable access to information about-- 23
(a) whether any particular area of the State is the subject of-- 24
(i) an approved cultural heritage management plan; or 25
(ii) a cultural heritage management plan in the process of being 26
developed under this Act; and 27
(b) the contact details for the sponsor and endorsed parties for each 28
approved plan and plan being developed. 29
s 50 37 s 53
Torres Strait Islander Cultural Heritage Bill 2003
50 Keeping register up-to-date 1
(1) The Minister may add information to, or take information off, the 2
register if the Minister is satisfied the adding or taking off is a necessary 3
adjustment for keeping the register up-to-date. 4
(2) However, before acting under subsection (1) to take information off 5
the register, the Minister must, to the extent it is reasonably practicable to 6
do so, consult with any Torres Strait Islander party for the area to which the 7
information relates. 8
(3) Information added to the register under subsection (1) is taken to be 9
information recorded in the register. 10
(4) Information taken off the register under subsection (1) is taken to be 11
information no longer recorded in the register. 12
51 Availability of register to public generally 13
(1) The chief executive must give access to the register generally. 14
(2) The chief executive may require a person seeking to obtain 15
information from the register to pay the fee prescribed under a regulation. 16
PART 6--CULTURAL HERITAGE STUDIES 17
Division 1--Introduction 18
52 Requirements for carrying out cultural heritage study and 19
recording findings 20
Divisions 2 to 6 state the requirements for carrying out a cultural 21
heritage study and for having its findings recorded in the register. 22
53 Roles and responsibilities for carrying out cultural heritage study 23
(1) Any person, including the Minister, may be the sponsor for a cultural 24
heritage study. 25
(2) However-- 26
s 54 38 s 56
Torres Strait Islander Cultural Heritage Bill 2003
(a) Torres Strait Islander parties are responsible for assessing the 1
level of significance of areas and objects included in the study 2
area that are or appear to be significant Torres Strait Islander 3
areas and significant Torres Strait Islander objects; and 4
(b) if the findings of a cultural heritage study are to be included in 5
the register, the study must be carried out, and its findings put in 6
written form, in the way this part requires. 7
54 Cultural heritage study guidelines 8
(1) The Minister may by gazette notice notify guidelines to help people 9
in choosing suitable methodologies for carrying out cultural heritage 10
studies. 11
(2) However, a failure to conform to the guidelines is not a ground for 12
refusing to record a cultural heritage study's findings in the register. 13
(3) Before notifying the guidelines, the Minister may consult with the 14
following-- 15
(a) Torres Strait Islander groups; 16
(b) industry groups; 17
(c) local governments; 18
(d) other persons the Minister considers appropriate. 19
Division 2--Preparing to carry out cultural heritage study 20
55 Reference to part of study area may be taken to include reference 21
to whole 22
For this division, a reference relating to a part of a study area may, if it is 23
convenient to do so, be taken to include a reference to the whole of the 24
study area. 25
56 Giving of written notice (proposed study) 26
(1) The sponsor for a cultural heritage study must give a written notice 27
("written notice (proposed study)") to-- 28
(a) the chief executive; and 29
s 57 39 s 57
Torres Strait Islander Cultural Heritage Bill 2003
(b) each person who is an owner or occupier of a part of the study 1
area; and 2
(c) if, for a part of the study area, there is no Torres Strait Islander 3
cultural heritage body--each Torres Strait Islander party that is a 4
native title party for the part of the study area; and 5
(d) each entity that is a Torres Strait Islander cultural heritage body 6
for a part of the study area; and 7
(e) if, for a part of the study area, there is no Torres Strait Islander 8
cultural heritage body and there is also no Torres Strait Islander 9
party that is a native title party--each entity that is a 10
representative body for the part of the study area; and 11
(f) each local government whose local government area includes a 12
part of the study area. 13
(2) The written notice (proposed study) must, to the greatest practicable 14
extent, be given simultaneously to each person to whom it is required to be 15
given. 16
(3) If, under subsection (1)(c), the written notice is required to be given 17
to a native title party for a part of the study area, the written notice may be 18
sent to the address for service entered for the party in-- 19
(a) the register; or 20
(b) if no address for service is entered in the register, but an address 21
for service is entered in the National Native Title Register or the 22
Register of Native Title Claims--the National Native Title 23
Register or the Register of Native Title Claims. 24
57 Basic information requirements for written notice (proposed 25
study) 26
The written notice (proposed study) must comply with the following 27
requirements (the "basic information requirements" for the notice)-- 28
(a) it must advise the sponsor's name and contact details, including 29
the sponsor's address for service; 30
(b) it must advise that the sponsor intends to carry out the cultural 31
heritage study; 32
(c) it must describe the study area for the study and identify its 33
location, including, to the extent appropriate and practicable in 34
the circumstances, by describing the study area's location in 35
s 58 40 s 59
Torres Strait Islander Cultural Heritage Bill 2003
relation to the nearest town, using bearings and approximate 1
distances. 2
58 Additional requirements for notice to Torres Strait Islander 3
cultural heritage body 4
(1) If the written notice (proposed study) is given to a Torres Strait 5
Islander cultural heritage body, the notice must, as well as complying with 6
the basic information requirements for the notice-- 7
(a) advise the body that if it wishes to identify a Torres Strait 8
Islander party to take part in the cultural heritage study, it must 9
give a written notice to the sponsor identifying the party and 10
giving the party's contact details; and 11
(b) state the notice day (proposed study) for the study, and advise the 12
body of the time by which the sponsor must be given the written 13
notice identifying a Torres Strait Islander party to take part in the 14
cultural heritage study; and 15
(c) advise the body that a Torres Strait Islander party identified by 16
the body might not be endorsed to take part in the study if the 17
body does not give the sponsor the written notice within the 18
required time. 19
(2) For subsection (1)(b), the time the sponsor advises as being the time 20
by which the sponsor must be given the written notice identifying a Torres 21
Strait Islander party to take part in the cultural heritage study must be-- 22
(a) the end of 30 days after the notice day (proposed study) for the 23
study; or 24
(b) a later time decided by the sponsor. 25
59 Additional requirements for notice to Torres Strait Islander party 26
(1) If the written notice (proposed study) is given to a Torres Strait 27
Islander party, the notice must, as well as complying with the basic 28
information requirements for the notice-- 29
(a) advise the party that if it wishes to take part in the cultural 30
heritage study, it must give a written notice to the sponsor that 31
the party wishes to take part in the study; and 32
s 60 41 s 61
Torres Strait Islander Cultural Heritage Bill 2003
(b) state the notice day (proposed study) for the study, and advise the 1
party of the time by which the sponsor must be given the written 2
notice that the party wishes to take part in the study; and 3
(c) advise the party that it might not be endorsed to take part in the 4
study if it does not give the sponsor the written notice within the 5
required time. 6
(2) For subsection (1)(b), the time the sponsor advises as being the time 7
by which the sponsor must be given the written notice that the party wishes 8
to take part in the study must be-- 9
(a) the end of 30 days after the notice day (proposed study) for the 10
study; or 11
(b) a later time decided by the sponsor. 12
60 Additional requirements for notice to representative body 13
If the written notice (proposed study) is given to a representative body, 14
the notice must, as well as complying with the basic information 15
requirements for the notice, draw the attention of the representative body to 16
the public notice (proposed study) published or to be published under this 17
division. 18
61 Giving of public notice (proposed study) 19
(1) This section applies if, for a part of the study area (the "relevant 20
part")-- 21
(a) there is no Torres Strait Islander cultural heritage body; and 22
(b) there is no Torres Strait Islander party that is a native title party 23
for the part. 24
(2) The sponsor must ensure that a public notice ("public notice 25
(proposed study)") is published in a newspaper circulating generally in 26
the relevant part. 27
(3) If there is an approved form for the public notice (proposed study), 28
the notice must be in the approved form. 29
(4) The public notice (proposed study) must be published as close as 30
practicable to the time the written notice (proposed study) is given. 31
(5) The public notice (proposed study) must-- 32
s 62 42 s 62
Torres Strait Islander Cultural Heritage Bill 2003
(a) be directed to Torres Strait Islander parties for the relevant part; 1
and 2
(b) advise the sponsor's name and contact details, including the 3
sponsor's address for service; and 4
(c) advise that the sponsor intends to carry out the cultural heritage 5
study; and 6
(d) describe the study area for the study and identify its location, 7
including, to the extent appropriate and practicable in the 8
circumstances, by describing the study area's location in relation 9
to the nearest town, using bearings and approximate distances; 10
and 11
(e) describe the relevant part, if it is less extensive than the study 12
area; and 13
(f) advise that if a Torres Strait Islander party for the relevant part 14
wishes to take part in the study, it must give a written notice to 15
the sponsor that the party wishes to take part in the study; and 16
(g) state the notice day (proposed study) for the study, and advise the 17
time by which the sponsor must be given the written notice that 18
the party wishes to take part in the study; and 19
(h) advise that a Torres Strait Islander party might not be endorsed to 20
take part in the study if it does not give the sponsor the written 21
notice within the required time. 22
(6) For subsection (5)(g), the time the sponsor advises as being the time 23
by which the sponsor must be given the written notice that the party wishes 24
to take part in the study must be-- 25
(a) the end of 30 days after the notice day (proposed study) for the 26
study; or 27
(b) a later time decided by the sponsor. 28
62 Torres Strait Islander cultural heritage body response to written 29
notice and endorsement for study 30
(1) A Torres Strait Islander cultural heritage body given the written 31
notice (proposed study) relating to a part of the study area may respond by 32
giving a written notice to the sponsor, within the time required under the 33
written notice (proposed study), advising the sponsor of the name and 34
s 63 43 s 65
Torres Strait Islander Cultural Heritage Bill 2003
contact details of each Torres Strait Islander party for the part of the area, 1
including the party's address for service. 2
(2) If the sponsor receives a response from a Torres Strait Islander 3
cultural heritage body under subsection (1) within the time required under 4
the written notice (proposed study), the sponsor must endorse each Torres 5
Strait Islander party identified in the response to take part in the cultural 6
heritage study. 7
63 Torres Strait Islander party response to written notice 8
and endorsement for study 9
(1) A Torres Strait Islander party given the written notice (proposed 10
study) relating to a part of the study area may respond by giving a written 11
notice to the sponsor, within the time required under the written notice 12
(proposed study), that the Torres Strait Islander party wishes to take part in 13
the cultural heritage study. 14
(2) If the sponsor receives a response from a Torres Strait Islander party 15
under subsection (1) within the time required under the written notice 16
(proposed study), the sponsor must endorse the Torres Strait Islander party 17
to take part in the cultural heritage study. 18
64 Torres Strait Islander party response to public notice 19
and endorsement for study 20
(1) A Torres Strait Islander party to which a public notice (proposed 21
study) is directed may respond by giving a written notice to the sponsor, 22
within the time required under the public notice (proposed study), that the 23
Torres Strait Islander party wishes to take part in the cultural heritage 24
study. 25
(2) If the sponsor receives a response from a Torres Strait Islander party 26
under subsection (1) within the time required under the public notice 27
(proposed study), the sponsor must endorse the Torres Strait Islander party 28
to take part in the cultural heritage study. 29
65 Endorsement for study in absence of response 30
(1) The sponsor is not required to endorse a Torres Strait Islander party 31
for the study area to take part in the cultural heritage study if a response 32
provided for under this part has not been given to the sponsor, or has not 33
been given to the sponsor within the required time. 34
s 66 44 s 68
Torres Strait Islander Cultural Heritage Bill 2003
(2) However, the sponsor may endorse a Torres Strait Islander party for 1
the study area to take part in the cultural heritage study even though the 2
sponsor is not required to endorse the party. 3
Division 3--Carrying out cultural heritage study 4
66 Role of endorsed party 5
(1) An endorsed party for the cultural heritage study has the role of-- 6
(a) in particular, assessing the level of significance of areas and 7
objects included in the study area that are or appear to be 8
significant Torres Strait Islander areas significant and Torres 9
Strait Islander objects; and 10
(b) generally, consulting with the sponsor about the carrying out of 11
the cultural heritage study, and giving help and advice directed at 12
maximising the quality and authority of the study. 13
(2) The endorsed party's role under subsection (1)(b) may be performed 14
on the party's behalf by a nominee. 15
67 Role of sponsor 16
The role of the sponsor for the cultural heritage study is to carry out the 17
study-- 18
(a) in consultation with the endorsed parties for the study; and 19
(b) in a way directed at maximising the quality and authority of the 20
study. 21
68 Engagement of cultural heritage assessors 22
(1) The sponsor may engage persons as cultural heritage assessors for 23
the cultural heritage study. 24
(2) An endorsed party for the cultural heritage study may ask the sponsor 25
to engage a cultural heritage assessor for the study for a particular purpose. 26
(3) The sponsor must comply with any reasonable request of an endorsed 27
party under subsection (2). 28
s 69 45 s 70
Torres Strait Islander Cultural Heritage Bill 2003
(4) However, the sponsor may engage a person as a cultural heritage 1
assessor for the cultural heritage study only if the sponsor is satisfied the 2
person is-- 3
(a) a Torres Strait Islander for the study area; or 4
(b) an appropriately qualified person in a discipline directly relevant 5
to the study; or 6
7
Examples of disciplines that would ordinarily be expected to be directly
8
relevant--
9
anthropology, archaeology, history
(c) another person who has particular knowledge or experience 10
making the person suitable for engagement as a cultural heritage 11
assessor. 12
(5) In this section-- 13
"Torres Strait Islander for the study area" means a Torres Strait Islander 14
who has particular knowledge about traditions, observances, customs 15
or beliefs associated with the study area, and who-- 16
(a) has responsibility under Island custom for some or all of the 17
study area, or for significant Torres Strait Islander objects located 18
or originating in the study area; or 19
(b) is a member of a family or clan group recognised as having 20
responsibility under Island custom for some or all of the study 21
area, or for significant Torres Strait Islander objects located or 22
originating in the study area. 23
69 Role of cultural heritage assessors 24
(1) A cultural heritage assessor for the cultural heritage study has the 25
role of giving help and advice directed at maximising the quality and 26
authority of the cultural heritage study. 27
(2) The cultural heritage assessor may give the help and advice only to 28
the extent agreed to by the sponsor. 29
70 Consultation supporting cultural heritage study 30
(1) The sponsor and each endorsed party for the cultural heritage study 31
must take reasonable steps to consult with each other about carrying out the 32
study. 33
s 71 46 s 71
Torres Strait Islander Cultural Heritage Bill 2003
(2) Without limiting subsection (1), the sponsor and an endorsed party 1
must consult with each other on any of the following if the sponsor or 2
endorsed party asks for the consultation-- 3
(a) timing of the cultural heritage study generally and of particular 4
stages of the study; 5
(b) access to particular areas; 6
(c) particular methods of assessment activity; 7
(d) choosing persons to be engaged as cultural heritage assessors; 8
(e) the reasonable requirements the sponsor may have of the 9
endorsed party, or the endorsed party may have of the sponsor, 10
for the carrying out of the study. 11
(3) The sponsor must also consult with the owner or occupier of land 12
about obtaining access to the land if the access is reasonably required for 13
carrying out the study. 14
Division 4--Recording by chief executive 15
71 Giving of cultural heritage study to chief executive for recording 16
(1) The sponsor may give the cultural heritage study to the chief 17
executive to record its findings in the register when the sponsor is satisfied 18
that-- 19
(a) the study has been completed to the extent that is reasonably 20
practicable in the circumstances; and 21
(b) the study's findings are in order for recording in the register. 22
(2) The chief executive may, under this part-- 23
(a) record the findings of the study in the register; or 24
(b) refuse to record the findings of the study in the register. 25
(3) Subsection (2) does not authorise the chief executive to assume the 26
role of an endorsed party for the study for assessing the level of 27
significance of areas and objects included in the study area that are or 28
appear to be significant Torres Strait Islander areas and significant Torres 29
Strait Islander objects. 30
s 72 47 s 73
Torres Strait Islander Cultural Heritage Bill 2003
72 Consideration of cultural heritage study before recording 1
(1) In considering whether to record the findings of the cultural heritage 2
study, the chief executive-- 3
(a) must have regard to the results and nature of consultation that has 4
happened for the purposes of the study between the sponsor and 5
endorsed parties; and 6
(b) may seek expert advice about the study from any appropriate 7
source; and 8
(c) may consult with any of the following about the study-- 9
(i) endorsed parties for the study; 10
(ii) cultural heritage assessors for the study; 11
(iii) owners and occupiers of land included in the study area; 12
(iv) land users of land included in the study area; 13
(v) local governments whose local government areas include a 14
part of the study area. 15
(2) Without limiting subsection (1)(b) and (c), expert advice and 16
consultation may be about the soundness and viability of recommendations 17
included in the cultural heritage study. 18
73 Requirements for recording cultural heritage study 19
(1) To record the findings of the cultural heritage study in the register, 20
the chief executive must be satisfied that-- 21
(a) the sponsor has complied with the procedures and other 22
requirements stated in this part for the carrying out of the cultural 23
heritage study; and 24
(b) the findings and other information included in the cultural 25
heritage study, including the study's recommendations, are 26
consistent with authoritative anthropological, biogeographical, 27
historical and archaeological information about the study area; 28
and 29
(c) the cultural heritage study includes the information and other 30
material needed for recording the study's findings under part 5, 31
division 2; and 32
(d) the cultural heritage study also includes the following-- 33
s 74 48 s 74
Torres Strait Islander Cultural Heritage Bill 2003
(i) an explanation of how lawful access to the study area was 1
achieved for carrying out the study, including details of any 2
law, or of any oral or written authority given by an owner or 3
occupier of land in the study area, authorising access to the 4
land; 5
(ii) a summarising statement about the existence of Torres Strait 6
Islander cultural heritage in the study area; 7
(iii) documented evidence about whether recommendations 8
included in the study for future management of Torres Strait 9
Islander cultural heritage have been agreed with affected 10
land owners and occupiers; 11
(iv) a description of assessment activities carried out for the 12
study; 13
(v) the signature of each endorsed party for the study, or the 14
party's nominee, who is stated in the study to be in support 15
of information and other matters in the study, and of the 16
recording of some or all of the study's findings in the 17
register; 18
(vi) the extent to which any endorsed party for the study does 19
not agree with the recording of the study's findings in the 20
register; 21
(vii) details of each endorsed party for the study who did not in 22
fact take part in the study. 23
(2) If the chief executive is satisfied under subsection (1), the chief 24
executive must record the findings of the cultural heritage study in the 25
register. 26
74 Recording or refusing to record findings of cultural heritage study 27
(1) When the chief executive records, or refuses to record, the findings of 28
the cultural heritage study in the register, the chief executive must give 29
written notice of the recording, or refusal to record, to-- 30
(a) the sponsor; and 31
(b) each person who is an owner or occupier of a part of the study 32
area; and 33
(c) each local government whose local government area includes a 34
part of the study area; and 35
s 75 49 s 76
Torres Strait Islander Cultural Heritage Bill 2003
(d) each endorsed party for the study; and 1
(e) each Torres Strait Islander cultural heritage body for a part of the 2
study area. 3
(2) The recording of findings in the register is not ineffective only 4
because-- 5
(a) it is open to a person under division 5 to object to the recording 6
of the findings; or 7
(b) a person entitled to a written notice under subsection (1) does not 8
receive the notice. 9
(3) If the chief executive refuses to record the findings of the cultural 10
heritage study in the register, the chief executive must include in each 11
written notice given under subsection (1) a statement of the chief 12
executive's reasons for refusing to record the findings. 13
Division 5--Objections, hearing and recommendation 14
75 Definitions for div 5 15
In this division-- 16
"appeal period", for a recording of the findings of the cultural heritage 17
study in the register, or for a refusal to record the findings of the 18
cultural heritage study in the register, means the 30 days immediately 19
after the day the chief executive gives the written notice notifying the 20
recording or the refusal to record. 21
"party", to an objection to a recording of the findings of the cultural 22
heritage study in the register, or a refusal to record the findings of the 23
cultural heritage study in the register, means each of the following-- 24
(a) the person who filed the objection with the tribunal; 25
(b) each other person who would have been entitled to object to the 26
tribunal to the recording or the refusal; 27
(c) the chief executive. 28
76 Objection to refusal to record findings 29
(1) A person may object to the tribunal to-- 30
s 77 50 s 77
Torres Strait Islander Cultural Heritage Bill 2003
(a) the chief executive's recording in the register of the findings of 1
the cultural heritage study; or 2
(b) the chief executive's refusal to record in the register the findings 3
of the cultural heritage study. 4
(2) However, to object, the person (the "objector") must be-- 5
(a) the sponsor for the study; or 6
(b) an endorsed party for the study; or 7
(c) a person who is an owner or occupier of a part of the study area; 8
or 9
(d) a local government whose local government area includes a part 10
of the study area. 11
(3) The objector must file the objection with the tribunal within the 12
appeal period. 13
(4) The objector must, in filing the objection with the tribunal, identify 14
for the tribunal the names and contact details of all other persons who the 15
objector understands to be parties to the objection. 16
(5) As soon as practicable after receiving the objection from the objector, 17
the tribunal must-- 18
(a) take all reasonable steps to identify all other parties to the 19
objection; and 20
(b) advise them of the objection. 21
(6) The chief executive must give the tribunal all the help the chief 22
executive can reasonably give to identify the parties to the objection. 23
(7) The tribunal must take all reasonable steps to keep all parties to the 24
objection informed about when the hearing of the objection is to be held. 25
77 Tribunal's hearing 26
(1) The tribunal must hold a hearing of the objection. 27
(2) Despite anything in the Land and Resources Tribunal Act 1999, the 28
tribunal must be constituted for the hearing, as directed by the president of 29
the tribunal, by-- 30
(a) a presiding member of the tribunal; or 31
s 78 51 s 78
Torres Strait Islander Cultural Heritage Bill 2003
(b) a presiding member of the tribunal assisted by a single non- 1
presiding member of the tribunal; or 2
(c) a referee non-presiding member of the tribunal who has been 3
appointed as an indigenous issues referee. 4
(3) All parties to the objection have the right to be heard at the hearing. 5
78 Tribunal's recommendation to Minister 6
(1) After the hearing has been completed, the tribunal must recommend 7
to the Minister-- 8
(a) if the objection was to a recording of the findings of the cultural 9
heritage study in the register-- 10
(i) that the Minister confirm the recording of the findings of the 11
study in the register; or 12
(ii) that the Minister take the findings of the study out of the 13
register; or 14
(iii) that the Minister amend the findings recorded in the register 15
in accordance with details included in the recommendation; 16
or 17
(b) if the objection was to a refusal to record the findings of the 18
cultural heritage study in the register-- 19
(i) that the Minister confirm the refusal to record the findings 20
of the study in the register; or 21
(ii) that the Minister record the findings of the study in the 22
register; or 23
(iii) that the Minister record the findings of the study in the 24
register after amendment of the findings in accordance with 25
details included in the recommendation. 26
(2) Subsection (1) does not stop the tribunal, before making its 27
recommendation to the Minister, from helping the parties to negotiate 28
changes to the cultural heritage study. 29
(3) For making a recommendation to the Minister about the cultural 30
heritage study, the tribunal-- 31
(a) must have regard to the matters about which the chief executive 32
was required to be satisfied before recording the findings of the 33
study; and 34
s 79 52 s 79
Torres Strait Islander Cultural Heritage Bill 2003
(b) may include in its considerations the nature and extent of 1
consultation held in carrying out the study. 2
(4) Subsection (1) does not authorise the tribunal to assume the role of 3
an endorsed party for the study for assessing the level of significance of 4
areas and objects included in the study area that are or appear to be 5
significant Torres Strait Islander areas and significant Torres Strait Islander 6
objects. 7
Division 6--Recording by Minister 8
79 Recording or refusing to record findings of cultural heritage study 9
(1) On receiving a recommendation from the tribunal under division 5, 10
the Minister may-- 11
(a) if the objection was to a recording of the findings of the cultural 12
heritage study in the register-- 13
(i) confirm the recording of the findings; or 14
(ii) take the findings of the study out of the register; or 15
(iii) amend the findings recorded in the register in the way the 16
Minister considers appropriate; or 17
(b) if the objection was to a refusal to record the findings of the 18
cultural heritage study in the register-- 19
(i) confirm the refusal to record the findings; or 20
(ii) record the findings; or 21
(iii) record the findings after amendment in the way the Minister 22
considers appropriate. 23
(2) However, in deciding what action to take, the Minister must have 24
regard to-- 25
(a) the tribunal's recommendation; and 26
(b) the matters about which the chief executive was required to be 27
satisfied before recording the findings of the study. 28
(3) Subsection (1) does not authorise the Minister to assume the role of 29
an endorsed party for the study for assessing the level of significance of 30
areas and objects included in the study area that are or appear to be 31
s 80 53 s 83
Torres Strait Islander Cultural Heritage Bill 2003
significant Torres Strait Islander areas and significant Torres Strait Islander 1
objects. 2
PART 7--CULTURAL HERITAGE MANAGEMENT 3
PLANS 4
Division 1--Introduction 5
80 When cultural heritage management plan is or may be 6
required--div 2 7
Division 2 provides for when a cultural heritage management plan is or 8
may be required to be developed and approved for a project. 9
81 Requirements for developing cultural heritage management plan 10
and having it approved--divs 3 to 7 11
Divisions 3 to 7 state the requirements for developing a cultural heritage 12
management plan for a project and for having the plan approved for the 13
project. 14
82 Responsibility for developing cultural heritage management plan 15
Any person, including the Minister, may be the sponsor for a cultural 16
heritage management plan. 17
83 Voluntary development of cultural heritage management plan 18
A person may, under this Act, develop and gain approval of a cultural 19
heritage management plan even though there is no legal requirement for the 20
plan. 21
22
Example--
23
A person may seek to have an approved cultural heritage management plan in place to
24
help the person avoid breaching the cultural heritage duty of care.
s 84 54 s 87
Torres Strait Islander Cultural Heritage Bill 2003
84 Approved cultural heritage management plan may not 1
require particular action 2
In appropriate circumstances, a cultural heritage management plan 3
developed and approved under this Act for a project may be to the effect 4
that there are, for the project, no particular requirements for managing the 5
impact of activities on Torres Strait Islander cultural heritage. 6
85 Cultural heritage management plan guidelines 7
(1) The Minister may by gazette notice notify guidelines to help people 8
in choosing suitable methodologies for developing cultural heritage 9
management plans. 10
(2) However, a failure to conform to the guidelines is not a ground for 11
refusing to approve a cultural heritage management plan. 12
(3) Before notifying the guidelines, the Minister may consult with the 13
following-- 14
(a) Torres Strait Islander groups; 15
(b) industry groups; 16
(c) local governments; 17
(d) other persons the Minister considers appropriate. 18
Division 2--Protection of cultural heritage under 19
cultural heritage management plans 20
86 Application of div 2 21
This division does not apply to a project to the extent the project is the 22
subject of-- 23
(a) an existing agreement; or 24
(b) a native title agreement, whenever entered into, unless Torres 25
Strait Islander cultural heritage is expressly excluded from being 26
subject to the agreement. 27
87 Cultural heritage management plan needed if EIS needed 28
(1) This section applies to a project if-- 29
s 88 55 s 88
Torres Strait Islander Cultural Heritage Bill 2003
(a) under an Act other than this Act, a lease, licence, permit, 1
approval or other authority is required for the project; and 2
(b) under the operation of the Act under which the authority is 3
required, or under the operation of another Act, an EIS is 4
required for the project. 5
(2) The entity authorised to give the authority must not give it unless-- 6
(a) a cultural heritage management plan for the project has been 7
developed and approved under this Act; or 8
(b) the authority is given subject to conditions to ensure that no 9
excavation, construction or other activity that may cause harm to 10
Torres Strait Islander cultural heritage takes place for the project 11
without the development and approval of a cultural heritage 12
management plan for the project. 13
(3) The entity authorised to give the authority has power to impose 14
conditions mentioned in subsection (2)(b). 15
(4) The plan area for a cultural heritage management plan developed and 16
approved for subsection (2) may be limited to the part of the project area 17
that is the subject of the EIS. 18
88 Cultural heritage management plan may be needed if other 19
environmental authority needed 20
(1) This section applies to a project if-- 21
(a) under an Act other than this Act-- 22
(i) a lease, licence, permit, approval or other authority is 23
required for the project; and 24
(ii) under the operation of the Act under which the authority is 25
required, or under the operation of another Act, an 26
environmental assessment is required for the project; and 27
(b) the project is a project, or a project of a type, prescribed under a 28
regulation for this section. 29
(2) The entity authorised to give the authority must not give the authority 30
unless-- 31
(a) a cultural heritage management plan for the project has been 32
developed and approved under this Act; or 33
s 89 56 s 89
Torres Strait Islander Cultural Heritage Bill 2003
(b) the authority is given subject to conditions to ensure that no 1
excavation or construction takes place for the project without the 2
development and approval of a cultural heritage management 3
plan for the project. 4
(3) The entity authorised to give the authority has power to impose 5
conditions mentioned in subsection (2)(b). 6
(4) The plan area for a cultural heritage management plan approved for 7
subsection (2) may be limited to the part of the project area that is the 8
subject of the environmental assessment. 9
(5) The Minister may recommend the making of a regulation under 10
subsection (1)(b) only if the Minister is satisfied the project or type of 11
project will have a significant impact on Torres Strait Islander cultural 12
heritage. 13
(6) In this section-- 14
"environmental assessment" means a form of environmental assessment 15
or planning, not including an EIS but including, for example, an EMP 16
submission under the Environmental Protection Act 1994. 17
89 Cultural heritage management plan needed under IPA 18
(1) This section applies to a project if, under IPA-- 19
(a) a development application is made relating to the project; and 20
(b) the chief executive is a concurrence agency for the application. 21
(2) Without limiting IPA, the chief executive may-- 22
(a) require, as part of an information request under IPA, that the 23
applicant ensure a cultural heritage management plan for the 24
project is developed and approved under this Act; or 25
(b) require to be imposed, as a condition of approval of the 26
development application, a condition that a cultural heritage 27
management plan for the project be developed and approved 28
under this Act. 29
s 90 57 s 91
Torres Strait Islander Cultural Heritage Bill 2003
Division 3--Preparing to develop cultural heritage management plan 1
90 Reference to part of plan area may be taken to include reference 2
to whole 3
For this division, a reference relating to a part of a plan area may, if it is 4
convenient to do so, be taken to include a reference to the whole of the plan 5
area. 6
91 Giving of written notice (proposed plan) 7
(1) The sponsor for a cultural heritage management plan must give a 8
written notice ("written notice (proposed plan)") to-- 9
(a) the chief executive; and 10
(b) each person who is an owner or occupier of a part of the plan 11
area; and 12
(c) if, for a part of the plan area, there is no Torres Strait Islander 13
cultural heritage body--each Torres Strait Islander party that is a 14
native title party for the part of the plan area; and 15
(d) each entity that is a Torres Strait Islander cultural heritage body 16
for a part of the plan area; and 17
(e) if, for a part of the plan area, there is no Torres Strait Islander 18
party that is a native title party, and there is also no Torres Strait 19
Islander cultural heritage body--each entity that is a 20
representative body for the part of the plan area. 21
(2) The written notice (proposed plan) must, to the greatest practicable 22
extent, be given simultaneously to each person to whom it is required to be 23
given. 24
(3) However, the person required to be notified under subsection (1)(b) 25
may be given the notice simultaneously with another notice given to the 26
person in relation to the project under another Act. 27
(4) If, under subsection (1)(c), the written notice is required to be given 28
to a native title party for a part of the plan area, the written notice may be 29
sent to the address for service entered for the native title party in-- 30
(a) the register; or 31
(b) if no address for service is entered in the register, but an address 32
for service is entered in the National Native Title Register or the 33
s 92 58 s 93
Torres Strait Islander Cultural Heritage Bill 2003
Register of Native Title Claims--the National Native Title 1
Register or the Register of Native Title Claims. 2
92 Basic information requirements for written notice (proposed 3
plan) 4
The written notice (proposed plan) must comply with the following 5
requirements (the "basic information requirements" for the notice)-- 6
(a) it must advise the sponsor's name and contact details, including 7
the sponsor's address for service; 8
(b) it must identify the project; 9
(c) it must advise that the sponsor intends to develop the cultural 10
heritage management plan for the project; 11
(d) it must describe the plan area for the plan and identify its 12
location, including, to the extent appropriate and practicable in 13
the circumstances, by describing the plan area's location in 14
relation to the nearest town, using bearings and approximate 15
distances. 16
93 Additional requirements for notice to Torres Strait Islander 17
cultural heritage body 18
(1) If the written notice (proposed plan) is given to a Torres Strait 19
Islander cultural heritage body, the notice must, as well as complying with 20
the basic information requirements for the notice-- 21
(a) advise the body that if it wishes to identify a Torres Strait 22
Islander party to take part in developing the cultural heritage 23
management plan, it must give a written notice to the sponsor 24
identifying the party and giving the party's contact details; and 25
(b) state the notice day (proposed plan) for the plan, and advise the 26
body of the time by which the sponsor must be given the written 27
notice identifying a Torres Strait Islander party to take part in 28
developing the plan; and 29
(c) advise the body that a Torres Strait Islander party identified by 30
the body might not be endorsed to take part in developing the 31
plan if the body does not give the sponsor the written notice 32
within the required time. 33
s 94 59 s 95
Torres Strait Islander Cultural Heritage Bill 2003
(2) For subsection (1)(b), the time the sponsor advises as being the time 1
by which the sponsor must be given the written notice identifying a Torres 2
Strait Islander party to take part in developing the plan must be-- 3
(a) the end of 30 days after the notice day (proposed plan) for the 4
plan; or 5
(b) a later time decided by the sponsor. 6
94 Additional requirements for notice to Torres Strait Islander party 7
(1) If the written notice (proposed plan) is given to a Torres Strait 8
Islander party, the notice must, as well as complying with the basic 9
information requirements for the notice-- 10
(a) advise the party that if it wishes to take part in developing the 11
cultural heritage management plan, it must give a written notice 12
to the sponsor that the party wishes to take part in developing the 13
plan; and 14
(b) state the notice day (proposed plan) for the plan, and advise the 15
party of the time by which the sponsor must be given the written 16
notice that the party wishes to take part in developing the plan; 17
and 18
(c) advise the party that it might not be endorsed to take part in 19
developing the plan if it does not give the sponsor the written 20
notice within the required time. 21
(2) For subsection (1)(b), the time the sponsor advises as being the time 22
by which the sponsor must be given the written notice that the party wishes 23
to take part in developing the plan must be-- 24
(a) the end of 30 days after the notice day (proposed plan) for the 25
plan; or 26
(b) a later time decided by the sponsor. 27
95 Additional requirements for notice to representative body 28
If the written notice (proposed plan) is given to a representative body, the 29
notice must, as well as complying with the basic information requirements 30
for the notice, draw the attention of the representative body to the public 31
notice (proposed plan) published or to be published under this division. 32
s 96 60 s 96
Torres Strait Islander Cultural Heritage Bill 2003
96 Giving of public notice (proposed plan) 1
(1) This section applies if, for a part of the plan area (the "relevant 2
part")-- 3
(a) there is no Torres Strait Islander cultural heritage body; and 4
(b) there is no Torres Strait Islander party that is a native title party. 5
(2) The sponsor must ensure that a public notice ("public notice 6
(proposed plan)") is published in a newspaper circulating generally in the 7
relevant part. 8
(3) If there is an approved form for the public notice (proposed plan), the 9
notice must be in the approved form. 10
(4) The public notice (proposed plan) must be published as close as 11
practicable to the time the written notice (proposed plan) is given. 12
(5) The public notice (proposed plan) must-- 13
(a) be directed to Torres Strait Islander parties for the relevant part; 14
and 15
(b) advise the sponsor's name and contact details, including the 16
sponsor's address for service; and 17
(c) identify the project; and 18
(d) advise that the sponsor intends to develop the cultural heritage 19
management plan for the project; and 20
(e) describe the plan area for the plan and identify its location, 21
including, to the extent appropriate and practicable in the 22
circumstances, by describing the plan area's location in relation 23
to the nearest town, using bearings and approximate distances; 24
and 25
(f) describe the relevant part, if it is less extensive than the plan area; 26
and 27
(g) advise that if a Torres Strait Islander party for the relevant part 28
wishes to take part in developing the plan, it must give a written 29
notice to the sponsor that the party wishes to take part in 30
developing the plan; and 31
(h) state the notice day (proposed plan) for the plan, and advise the 32
time by which the sponsor must be given the written notice that 33
the party wishes to take part in developing the plan; and 34
s 97 61 s 98
Torres Strait Islander Cultural Heritage Bill 2003
(i) advise that a Torres Strait Islander party might not be endorsed to 1
take part in developing the plan if it does not give the sponsor the 2
written notice within the required time. 3
(6) For subsection (5)(h), the time the sponsor advises as being the time 4
by which the sponsor must be given the written notice that the party wishes 5
to take part in developing the plan must be-- 6
(a) the end of 30 days after the notice day (proposed plan) for the 7
plan; or 8
(b) a later time decided by the sponsor. 9
97 Torres Strait Islander cultural heritage body response to written 10
notice and endorsement for plan 11
(1) A Torres Strait Islander cultural heritage body given the written 12
notice (proposed plan) relating to a part of the plan area may respond by 13
giving a written notice to the sponsor, within the time required under the 14
written notice (proposed plan), advising the sponsor of the name and 15
contact details of each Torres Strait Islander party for the part, including 16
the party's address for service. 17
(2) If the sponsor receives a response under subsection (1) within the 18
time required under the written notice (proposed plan), the sponsor must 19
endorse each Torres Strait Islander party identified in the response to take 20
part in developing the cultural heritage management plan. 21
98 Torres Strait Islander party response to written notice 22
and endorsement for plan 23
(1) A Torres Strait Islander party given the written notice (proposed plan) 24
relating to a part of the plan area may respond by giving a written notice to 25
the sponsor, within the time required under the written notice (proposed 26
plan), that the Torres Strait Islander party wishes to take part in developing 27
the cultural heritage management plan. 28
(2) If the sponsor receives a response from a Torres Strait Islander party 29
under subsection (1) within the time required under the written notice 30
(proposed plan), the sponsor must endorse the Torres Strait Islander party 31
to take part in developing the plan. 32
s 99 62 s 100
Torres Strait Islander Cultural Heritage Bill 2003
99 Torres Strait Islander party response to public notice 1
and endorsement for plan 2
(1) A Torres Strait Islander party to which a public notice (proposed 3
plan) is directed may respond by giving a written notice to the sponsor, 4
within the time required under the public notice (proposed plan), that the 5
Torres Strait Islander party wishes to take part in developing the cultural 6
heritage management plan. 7
(2) If the sponsor receives a response from a Torres Strait Islander party 8
under subsection (1) within the time required under the public notice 9
(proposed plan), the sponsor must endorse the Torres Strait Islander party 10
to take part in developing the plan. 11
100 Becoming Torres Strait Islander party after written notice 12
(proposed plan) is given 13
(1) This section applies if, after the giving of the written notice 14
(proposed plan), but before the notice day (proposed plan) for the cultural 15
heritage management plan, an entity becomes a Torres Strait Islander party 16
for a part of the plan area because it becomes a native title party for the part 17
of the plan area. 18
(2) The sponsor must give the Torres Strait Islander party a written 19
notice that-- 20
(a) includes a copy of the written notice (proposed plan) it would 21
have been given if it had been a Torres Strait Islander party when 22
the written notice (proposed plan) was first given under this 23
division; and 24
(b) advises the time by which, despite anything in the written notice 25
(proposed plan), the sponsor must be given the written notice that 26
the party wishes to take part in developing the plan. 27
(3) For subsection (2)(b), the time the sponsor advises as being the time 28
by which the sponsor must be given the written notice that the party wishes 29
to take part in developing the plan must be-- 30
(a) the end of 37 days after the notice day (proposed plan) for the 31
plan; or 32
(b) a later time decided by the sponsor. 33
(4) A Torres Strait Islander party given a written notice under 34
subsection (2) may respond by giving a written notice to the sponsor, 35
s 101 63 s 102
Torres Strait Islander Cultural Heritage Bill 2003
within the time advised under subsection (2)(b), that the party wishes to 1
take part in developing the plan. 2
(5) If the sponsor receives a notice from a Torres Strait Islander party 3
under subsection (4) within the time required under subsection (2)(b), the 4
sponsor must endorse the Torres Strait Islander party to take part in 5
developing the plan. 6
(6) This section applies whether or not a public notice (proposed plan) 7
was published. 8
101 Endorsement for plan in absence of response 9
(1) The sponsor is not required to endorse a Torres Strait Islander party 10
for the plan area to take part in developing the cultural heritage 11
management plan if a response provided for under this part has not been 12
given to the sponsor, or has not been given to the sponsor within the 13
required time. 14
(2) However, the sponsor may endorse a Torres Strait Islander party for 15
the plan area to take part in developing the cultural heritage management 16
plan even though the sponsor is not required to endorse the party. 17
Division 4--Development of cultural heritage management plan 18
102 Role of endorsed party 19
(1) An endorsed party for the cultural heritage management plan has the 20
role of-- 21
(a) seeking agreement with the sponsor for the plan about how the 22
project is to be managed-- 23
(i) to avoid harm to Torres Strait Islander cultural heritage; and 24
(ii) to the extent that harm can not reasonably be avoided, to 25
minimise harm to Torres Strait Islander cultural heritage; 26
and 27
(b) consulting and negotiating with the sponsor, and with other 28
endorsed parties for the plan, about issues needing to be 29
addressed in the development of the plan, and about the final 30
content of the plan; and 31
s 103 64 s 104
Torres Strait Islander Cultural Heritage Bill 2003
(c) generally, giving help and advice in a way directed at 1
maximising the suitability of the plan for the effective protection 2
and conservation of Torres Strait Islander cultural heritage. 3
(2) The endorsed party's role may be performed on the party's behalf by 4
a nominee. 5
103 Role of sponsor 6
The sponsor for the cultural heritage management plan has the role of-- 7
(a) seeking agreement with the endorsed parties for the plan about 8
how the project is to be managed-- 9
(i) to avoid harm to Torres Strait Islander cultural heritage; and 10
(ii) to the extent that harm can not reasonably be avoided, to 11
minimise harm to Torres Strait Islander cultural heritage; 12
and 13
(b) developing the plan-- 14
(i) in consultation and negotiation with the endorsed parties for 15
the plan; and 16
(ii) in a way directed at maximising the suitability of the plan 17
for the effective protection and conservation of Torres Strait 18
Islander cultural heritage. 19
104 Consultation 20
(1) Subjects for consultation may include, but are not limited to, the 21
following-- 22
(a) the nature and extent of known Torres Strait Islander cultural 23
heritage in the plan area; 24
(b) the reasonable requirements for the carrying out of a site survey 25
of Torres Strait Islander cultural heritage in the plan area, and the 26
results of the survey if it is carried out; 27
(c) reasonable travel and accommodation requirements for endorsed 28
parties; 29
(d) workplace health and safety issues arising out of any site survey 30
or investigation carried out in developing the plan; 31
s 105 65 s 105
Torres Strait Islander Cultural Heritage Bill 2003
(e) the number of endorsed parties, or nominees of endorsed parties, 1
who can reasonably be involved in any site survey. 2
(2) Consultation may include reasonable use of any of the following 3
ways of consulting-- 4
(a) face to face meetings; 5
(b) telephone conferences; 6
(c) use of the internet; 7
(d) exchanges of correspondence. 8
(3) This division does not require a survey of Torres Strait Islander 9
cultural heritage carried out for the purposes of consultation to be carried 10
out as a cultural heritage study under part 6. 11
105 Reaching agreement 12
(1) The sponsor and each endorsed party for the cultural heritage 13
management plan must negotiate, and make every reasonable effort to 14
reach agreement, about the provisions of the plan. 15
(2) Without limiting how the plan may provide for the managing of 16
project activities in relation to their impact on Torres Strait Islander cultural 17
heritage, the plan may provide for the following-- 18
(a) when particular project activities are to happen; 19
(b) when particular activities under the plan are to happen; 20
(c) arrangements for access to land for carrying out activities under 21
the plan, including details of arrangements entered into with 22
owners or occupiers of land; 23
(d) identification of known Torres Strait Islander cultural heritage, 24
noting, if appropriate, any reference to the cultural heritage in the 25
database or register; 26
(e) the way Torres Strait Islander cultural heritage is to be assessed; 27
(f) whether Torres Strait Islander cultural heritage is to be damaged, 28
relocated or taken away, and how this is to be managed; 29
(g) contingency planning for disputes, unforeseen delays and other 30
foreseeable and unforeseeable obstacles to carrying out activities 31
under the plan; 32
s 106 66 s 107
Torres Strait Islander Cultural Heritage Bill 2003
(h) other matters reasonably necessary for successfully carrying out 1
activities under the plan. 2
106 Mediation 3
(1) This section applies if at least 28 days of the consultation period for 4
the cultural heritage management plan have elapsed, and it appears to a 5
consultation party for the plan that-- 6
(a) a dispute has arisen between 2 or more consultation parties for 7
the plan; and 8
(b) the dispute is substantially delaying the development of the plan. 9
(2) The consultation party may ask the tribunal to provide mediation of 10
the dispute. 11
(3) If in the opinion of a presiding member of the tribunal the dispute is 12
suitable for mediation the tribunal may provide the mediation. 13
(4) Referral of the dispute to mediation may extend the consultation 14
period only to the extent agreed to in writing by all the consultation parties. 15
Division 5--Approval by chief executive 16
107 Chief executive approval of plan 17
(1) Whether or not the consultation period for the cultural heritage 18
management plan has ended, the sponsor may give the plan, as developed 19
under this part, to the chief executive for the chief executive's approval if-- 20
(a) there is no endorsed party for the plan; or 21
(b) there is at least 1 endorsed party for the plan, and all consultation 22
parties for the plan agree that the chief executive may approve 23
the plan. 24
(2) If the circumstance mentioned in subsection (1)(a) applies, the chief 25
executive must, under this part-- 26
(a) approve the plan; or 27
(b) refuse to approve the plan. 28
(3) If the circumstances mentioned in subsection (1)(b) apply, the chief 29
executive must approve the plan. 30
s 108 67 s 110
Torres Strait Islander Cultural Heritage Bill 2003
108 Consideration of plan before approval if no endorsed party 1
(1) This section applies if there is no endorsed party for the cultural 2
heritage management plan. 3
(2) To approve the plan, the chief executive must be satisfied the plan 4
makes enough provision for how the project is to be managed-- 5
(a) to avoid harm to Torres Strait Islander cultural heritage; and 6
(b) to the extent that harm can not reasonably be avoided, to 7
minimise harm to Torres Strait Islander cultural heritage. 8
(3) If the plan is not a cultural heritage management plan developed 9
voluntarily, the chief executive must also be satisfied the plan includes 10
agreement for effective alternate dispute resolution arrangements to deal 11
with issues that may arise in the operation of the plan. 12
109 Approving or refusing to approve plan if no endorsed party 13
(1) This section also applies if there is no endorsed party for the cultural 14
heritage management plan. 15
(2) When the chief executive approves, or refuses to approve, the plan, 16
the chief executive must give written notice of the approval, or refusal to 17
approve, to the sponsor for the plan. 18
(3) The approval or refusal to approve is not ineffective only because the 19
sponsor does not receive the notice under subsection (2). 20
(4) If the chief executive refuses to approve the plan, the chief executive 21
must include in the written notice given under subsection (2) a written 22
statement of the chief executive's reasons for refusing to approve the plan. 23
(5) The chief executive is not required to accept, but may accept, for the 24
chief executive's further consideration, the plan in a form amended to take 25
account of the matters mentioned in the chief executive's statement of 26
reasons. 27
Division 6--Objection or referral, hearing and recommendation 28
110 Definitions for div 6 29
In this division-- 30
s 111 68 s 112
Torres Strait Islander Cultural Heritage Bill 2003
"appeal period", for a refusal to approve a cultural heritage management 1
plan for which there is no endorsed party, means the 30 days 2
immediately after the chief executive gives the sponsor the written 3
notice notifying the refusal. 4
"party"-- 5
(a) to an objection to a refusal to approve a cultural heritage 6
management plan for which there is no endorsed party--means 7
each of the following-- 8
(i) the sponsor; 9
(ii) the chief executive; or 10
(b) to a referral of a cultural heritage management plan to the 11
tribunal for approval--means each of the following-- 12
(i) each consultation party for the plan; 13
(ii) the chief executive. 14
111 Objection to tribunal to refusal to approve agreed plan 15
(1) If there is no endorsed party for the cultural heritage management 16
plan, the sponsor for the plan may object, to the tribunal, to the chief 17
executive's refusal to approve the plan. 18
(2) The sponsor must file the objection with the tribunal within the 19
appeal period for the refusal. 20
112 Sponsor may refer plan to tribunal after unsuccessful mediation 21
(1) This section applies if-- 22
(a) under division 4, a consultation party asks the tribunal to provide 23
mediation of a dispute; and 24
(b) the mediation is not successful in resolving the dispute; and 25
(c) the mediator considers that resolution is unlikely before the end 26
of the consultation period. 27
(2) The mediator may authorise the sponsor to refer the plan to the 28
tribunal and ask the tribunal to approve the cultural heritage management 29
plan, even though the consultation period has not ended. 30
s 113 69 s 115
Torres Strait Islander Cultural Heritage Bill 2003
(3) If the sponsor does not refer the plan on the mediator's authority, the 1
sponsor is not prevented from acting under this division to refer the plan to 2
the tribunal. 3
113 Sponsor may refer plan to tribunal after failure to agree 4
(1) This section applies if-- 5
(a) there is at least 1 endorsed party for the cultural heritage 6
management plan; and 7
(b) the consultation period for the plan has ended; and 8
(c) all consultation parties have not agreed that the chief executive 9
may approve the plan. 10
(2) The sponsor for the plan may refer the plan to the tribunal and ask the 11
tribunal to approve the plan. 12
(3) The sponsor must ensure that a referral of the plan to the tribunal 13
happens within a reasonable time after the end of the consultation period 14
for the plan. 15
114 Administrative details for objection or referral 16
(1) The sponsor must, in filing an objection or referral with the tribunal, 17
identify for the tribunal the names and contact details of all other parties to 18
the objection or referral. 19
(2) As soon as practicable after receiving the objection or referral from 20
the sponsor, the tribunal must advise all other parties of the objection or 21
referral. 22
(3) The tribunal must take all reasonable steps to keep all parties to the 23
objection or referral informed about when any hearing of the objection or 24
referral is to be held. 25
115 Substantive requirements for objection or referral 26
(1) The sponsor must, in filing an objection or referral with the tribunal, 27
give the tribunal a document that-- 28
(a) unless there is no endorsed party for the cultural heritage 29
management plan--outlines the nature and extent of the 30
s 116 70 s 117
Torres Strait Islander Cultural Heritage Bill 2003
consultation that happened in the consultation period for the 1
plan; and 2
(b) states why the sponsor believes the plan makes enough provision 3
for how the project is to be managed-- 4
(i) to avoid harm to Torres Strait Islander cultural heritage; and 5
(ii) to the extent that harm can not reasonably be avoided, to 6
minimise harm to Torres Strait Islander cultural heritage. 7
(2) The tribunal must-- 8
(a) give each other party to the objection or referral a copy of the 9
document given to the tribunal under subsection (1); and 10
(b) for a referral--invite each other party to the referral to make a 11
written submission to the tribunal about the plan and the 12
sponsor's submission on the plan. 13
(3) The tribunal is required to take account of a party's written 14
submission given on an invitation under subsection (2)(b) only if the 15
tribunal receives the submission within 30 days after the tribunal gives the 16
copy of the document to the party under subsection (2)(a). 17
116 Tribunal's hearing 18
(1) The tribunal may hold, but is not required to hold, a hearing of an 19
objection or referral. 20
(2) If, for the hearing, the tribunal is constituted by a referee non- 21
presiding member of the tribunal who has been appointed as an indigenous 22
issues referee, the referee must not be a referee who provided mediation 23
under division 4. 24
(3) All parties to the objection or referral have the right to be heard at the 25
hearing. 26
(4) The tribunal may order mediation before the hearing if the tribunal 27
considers mediation may successfully resolve any dispute about the 28
cultural heritage management plan. 29
117 Tribunal's recommendation to Minister 30
(1) After the hearing has been completed, or, if no hearing is held, after 31
the tribunal has considered the sponsor's document and any submission 32
properly received by the tribunal, the tribunal must give its 33
s 118 71 s 118
Torres Strait Islander Cultural Heritage Bill 2003
recommendation about the cultural heritage management plan to the 1
Minister. 2
(2) The tribunal's recommendation must be-- 3
(a) that the Minister-- 4
(i) for an objection--confirm the chief executive's refusal to 5
approve the plan; or 6
(ii) for a referral--refuse to approve the plan; or 7
(b) that the Minister approve the plan; or 8
(c) that the Minister approve the plan after amendment of the plan in 9
accordance with details included in the recommendation. 10
(3) Subsection (2) does not stop the tribunal, before making its 11
recommendation to the Minister, from helping the parties to negotiate 12
changes to the plan. 13
(4) Subsections (5) and (6) apply only if there is at least 1 endorsed party 14
for the plan. 15
(5) If, before the tribunal makes a recommendation to the Minister, all 16
the consultation parties agree that the plan should be approved, the sponsor 17
may give the plan, as agreed to, to the chief executive. 18
(6) The giving of the plan to the chief executive under subsection (4) is 19
taken to be a giving of the plan to the chief executive under division 5, in 20
the circumstances that there is at least 1 endorsed party for the plan, and all 21
consultation parties for the plan agree that the chief executive may approve 22
the plan. 23
118 Reaching the recommendation 24
(1) To recommend that the Minister approve the cultural heritage 25
management plan, or that the Minister approve the plan after amendment, 26
the tribunal must be satisfied the plan makes, or after suitable amendment 27
will make, enough provision for how the project is to be managed-- 28
(a) to avoid damage to Torres Strait Islander cultural heritage; and 29
(b) to the extent that damage can not reasonably be avoided, to 30
minimise damage to Torres Strait Islander cultural heritage. 31
(2) If the plan is not a cultural heritage management plan developed 32
voluntarily, the tribunal must also be satisfied the plan provides for 33
s 119 72 s 119
Torres Strait Islander Cultural Heritage Bill 2003
effective alternate dispute resolution arrangements to deal with issues that 1
may arise in the operation of the plan. 2
(3) The tribunal must also be satisfied that, for Torres Strait Islander 3
cultural heritage that is to be or may be taken away when the plan is put 4
into effect, the plan makes enough provision about-- 5
(a) who is to become the owner of it; and 6
(b) who is to have the custody of it. 7
(4) For making its recommendation to the Minister about the plan, the 8
tribunal must include the following in its considerations-- 9
(a) the availability and quality of documented information about the 10
Torres Strait Islander cultural heritage significance of the plan 11
area; 12
(b) the nature of the impacts of the project; 13
(c) submissions made by the parties to the objection or referral, 14
including, if a hearing is held, oral submissions made at the 15
hearing; 16
(d) the nature and extent of past uses of the project area. 17
119 General time requirement for making recommendation 18
(1) The tribunal must take all reasonable steps to make sure that its 19
recommendation about the cultural heritage management plan is given to 20
the Minister within 4 months after the objection or referral is filed with the 21
tribunal. 22
(2) If the recommendation is not made within the 4 months, the tribunal 23
must, as soon as practicable after the 4 months ends, give a written notice 24
to the Minister-- 25
(a) advising why the recommendation has not yet been made; and 26
(b) giving an estimate of when the recommendation is likely to be 27
made. 28
s 120 73 s 122
Torres Strait Islander Cultural Heritage Bill 2003
Division 7--Approval by Minister 1
120 Approving or refusing to approve plan 2
(1) On receiving a recommendation from the tribunal under division 6, 3
the Minister may-- 4
(a) for an objection--confirm the chief executive's refusal to 5
approve the cultural heritage management plan; or 6
(b) for a referral--refuse to approve the plan; or 7
(c) approve the plan; or 8
(d) approve the plan after amendment of the plan in accordance with 9
the Minister's direction. 10
(2) However, in deciding what action to take, the Minister must have 11
regard to-- 12
(a) the tribunal's recommendation; and 13
(b) the matters about which the chief executive was or would have 14
been required to be satisfied before approving the plan. 15
PART 8--INVESTIGATION AND ENFORCEMENT 16
Division 1--Authorised officers 17
121 Appointment and qualifications 18
(1) The chief executive may appoint a public service employee as an 19
authorised officer. 20
(2) However, the chief executive may appoint a person as an authorised 21
officer only if the chief executive is satisfied the person is qualified for 22
appointment because the person has the necessary expertise or experience. 23
122 Appointment conditions and limit on powers 24
(1) An authorised officer holds office on any conditions stated in-- 25
s 123 74 s 124
Torres Strait Islander Cultural Heritage Bill 2003
(a) the authorised officer's instrument of appointment; or 1
(b) a signed notice given to the authorised officer; or 2
(c) a regulation. 3
(2) The instrument of appointment, a signed notice given to the 4
authorised officer or a regulation may limit the authorised officer's powers 5
under this Act. 6
(3) In this section-- 7
"signed notice" means a notice signed by the chief executive. 8
123 Issue of identity card 9
(1) The chief executive must issue an identity card to each authorised 10
officer. 11
(2) The identity card must-- 12
(a) contain a recent photo of the authorised officer; and 13
(b) contain a copy of the authorised officer's signature; and 14
(c) identify the person as an authorised officer under this Act; and 15
(d) state an expiry date for the card. 16
(3) This section does not prevent the issue of a single identity card to a 17
person for this Act and other purposes. 18
124 Production or display of identity card 19
(1) In exercising a power under this Act in relation to a person, an 20
authorised officer must-- 21
(a) produce the authorised officer's identity card for the person's 22
inspection before exercising the power; or 23
(b) have the identity card displayed so it is clearly visible to the 24
person when exercising the power. 25
(2) However, if it is not practicable to comply with subsection (1), the 26
authorised officer must produce the identity card for the person's 27
inspection at the first reasonable opportunity. 28
(3) For subsection (1), an authorised officer does not exercise a power in 29
relation to a person only because the authorised officer, as authorised under 30
this Act, enters-- 31
s 125 75 s 127
Torres Strait Islander Cultural Heritage Bill 2003
(a) a public place when it is open to the public; or 1
(b) a place for the purpose of asking the occupier of the place for 2
consent to enter. 3
125 When authorised officer ceases to hold office 4
(1) An authorised officer ceases to hold office if any of the following 5
happens-- 6
(a) the term of office stated in a condition of office ends; 7
(b) under another condition of office, the authorised officer ceases to 8
hold office; 9
(c) the authorised officer's resignation takes effect. 10
(2) Subsection (1) does not limit the ways an authorised officer may 11
cease to hold office. 12
(3) In this section-- 13
"condition of office" means a condition on which the authorised officer 14
holds office. 15
126 Resignation 16
An authorised officer may resign by signed notice given to the chief 17
executive. 18
127 Return of identity card 19
A person who ceases to be an authorised officer must return the person's 20
identity card to the chief executive within 21 days after ceasing to be an 21
authorised officer unless the person has a reasonable excuse. 22
Maximum penalty--50 penalty units. 23
s 128 76 s 129
Torres Strait Islander Cultural Heritage Bill 2003
Division 2--Powers of authorised officers 1
Subdivision 1--Entry of places 2
128 Power to enter places 3
(1) An authorised officer may enter a place if-- 4
(a) its occupier consents to the entry; or 5
(b) it is a public place and the entry is made when the place is open 6
to the public; or 7
(c) the entry is authorised by a warrant. 8
(2) For the purpose of asking the occupier of a place for consent to enter, 9
an authorised officer may, without the occupier's consent or a warrant-- 10
(a) enter land around premises at the place to an extent that is 11
reasonable to contact the occupier; or 12
(b) enter part of the place the authorised officer reasonably considers 13
members of the public ordinarily are allowed to enter when they 14
wish to contact the occupier. 15
Subdivision 2--Procedure for entry 16
129 Entry with consent 17
(1) This section applies if an authorised officer intends to ask an 18
occupier of a place to consent to the authorised officer or another 19
authorised officer entering the place. 20
(2) Before asking for the consent, the authorised officer must tell the 21
occupier-- 22
(a) the purpose of the entry; and 23
(b) that the occupier is not required to consent. 24
(3) If the consent is given, the authorised officer may ask the occupier to 25
sign an acknowledgment of the consent. 26
(4) The acknowledgment must state-- 27
(a) the occupier has been told-- 28
s 130 77 s 131
Torres Strait Islander Cultural Heritage Bill 2003
(i) the purpose of the entry; and 1
(ii) that the occupier is not required to consent; and 2
(b) the purpose of the entry; and 3
(c) the occupier gives the authorised officer consent to enter the 4
place and exercise powers under this Act; and 5
(d) the time and date the consent was given. 6
(5) If the occupier signs the acknowledgment, the authorised officer 7
must immediately give a copy to the occupier. 8
(6) If-- 9
(a) an issue arises in a proceeding about whether the occupier 10
consented to the entry; and 11
(b) an acknowledgement complying with subsection (4) for the entry 12
is not produced in evidence; 13
the onus of proof is on the person relying on the lawfulness of the entry to 14
prove the occupier consented. 15
130 Application for warrant 16
(1) An authorised officer may apply to a magistrate for a warrant for a 17
place. 18
(2) The application must be sworn and state the grounds on which the 19
warrant is sought. 20
(3) The magistrate may refuse to consider the application until the 21
authorised officer gives the magistrate all the information the magistrate 22
requires about the application in the way the magistrate requires. 23
24
Example--
25
The magistrate may require additional information supporting the application to be
26
given by statutory declaration.
131 Issue of warrant 27
(1) The magistrate may issue a warrant only if the magistrate is satisfied 28
there are reasonable grounds for suspecting-- 29
(a) there is a particular thing or activity (the "evidence") that may 30
provide evidence of an offence against this Act; and 31
s 132 78 s 132
Torres Strait Islander Cultural Heritage Bill 2003
(b) the evidence is at the place, or may be at the place within the next 1
7 days. 2
(2) The warrant must state-- 3
(a) that a stated authorised officer may, with necessary and 4
reasonable help and force-- 5
(i) enter the place and any other place necessary for entry; and 6
(ii) exercise the authorised officer's powers under this Act; and 7
(b) the offence for which the warrant is sought; and 8
(c) the evidence that may be seized under the warrant; and 9
(d) the hours of the day or night when the place may be entered; and 10
(e) the date, within 14 days after the warrant's issue, the warrant 11
ends. 12
132 Special warrants 13
(1) An authorised officer may apply for a warrant (a "special warrant") 14
by phone, fax, radio or another form of communication if the authorised 15
officer considers it necessary because of-- 16
(a) urgent circumstances; or 17
(b) other special circumstances, including, for example, the 18
authorised officer's remote location. 19
(2) Before applying for the special warrant, the authorised officer must 20
prepare an application stating the grounds on which the warrant is sought. 21
(3) The authorised officer may apply for the special warrant before the 22
application is sworn. 23
(4) After issuing the special warrant, the magistrate must immediately 24
fax a copy (the "facsimile warrant") to the authorised officer if it is 25
reasonably practicable to fax the copy. 26
(5) If it is not reasonably practicable to fax a copy to the authorised 27
officer-- 28
(a) the magistrate must tell the authorised officer-- 29
(i) what the terms of the special warrant are; and 30
(ii) the date and time the special warrant was issued; and 31
s 133 79 s 133
Torres Strait Islander Cultural Heritage Bill 2003
(b) the authorised officer must complete a form of warrant 1
(a "warrant form") and write on it-- 2
(i) the magistrate's name; and 3
(ii) the date and time the magistrate issued the special warrant; 4
and 5
(iii) the terms of the special warrant. 6
(6) The facsimile warrant, or the warrant form properly completed by the 7
authorised officer, authorises the entry and the exercise of the other powers 8
stated in the special warrant issued. 9
(7) The authorised officer must, at the first reasonable opportunity, send 10
to the magistrate-- 11
(a) the sworn application; and 12
(b) if the authorised officer completed a warrant form--the 13
completed warrant form. 14
(8) On receiving the documents, the magistrate must attach them to the 15
special warrant. 16
(9) If-- 17
(a) an issue arises in a proceeding about whether an exercise of a 18
power was authorised by a special warrant; and 19
(b) the warrant is not produced in evidence; 20
the onus of proof is on the person relying on the lawfulness of the exercise 21
of the power to prove a special warrant authorised the exercise of the 22
power. 23
133 Warrants--procedure before entry 24
(1) This section applies if an authorised officer named in a warrant 25
issued under this Act for a place is intending to enter the place under the 26
warrant. 27
(2) Before entering the place, the authorised officer must do or make a 28
reasonable attempt to do the following things-- 29
(a) identify himself or herself to a person present at the place who is 30
an occupier of the place by producing a copy of the authorised 31
officer's identity card or other document evidencing the 32
authorised officer's appointment; 33
s 134 80 s 134
Torres Strait Islander Cultural Heritage Bill 2003
(b) give the person a copy of the warrant or, if the entry is authorised 1
by a facsimile warrant or warrant form, a copy of the facsimile 2
warrant or warrant form; 3
(c) tell the person the authorised officer is permitted by the warrant 4
to enter the place; 5
(d) give the person an opportunity to allow the authorised officer 6
immediate entry to the place without using force. 7
(3) However, the authorised officer need not comply with subsection (2) 8
if the authorised officer believes on reasonable grounds that immediate 9
entry to the place is required to ensure the effective execution of the 10
warrant is not frustrated. 11
Subdivision 3--Powers after entry 12
134 General powers after entering places 13
(1) This section applies to an authorised officer who enters a place. 14
(2) However, if an authorised officer enters a place to get the occupier's 15
consent to enter premises, this section applies to the authorised officer only 16
if the consent is given or the entry is otherwise authorised. 17
(3) For enforcing compliance with this Act, the authorised officer may-- 18
(a) search any part of the place; or 19
(b) inspect, measure, test, photograph or film any part of the place or 20
anything at the place; or 21
(c) take a thing, or a sample of or from a thing, for analysis or 22
testing; or 23
(d) take an extract from, or copy, a document at the place; or 24
(e) take into or onto the place any person, including a Torres Strait 25
Islander party or representative of a Torres Strait Islander party, 26
the authorised officer reasonably requires for exercising a power 27
under this Act; or 28
(f) take into or onto the place any equipment and materials the 29
authorised officer reasonably requires for exercising a power 30
under this Act; or 31
s 135 81 s 137
Torres Strait Islander Cultural Heritage Bill 2003
(g) require the occupier of the place, or a person at the place, to give 1
the authorised officer reasonable help to exercise the authorised 2
officer's powers under paragraphs (a) to (f); or 3
(h) require the occupier of the place, or a person at the place, to give 4
the authorised officer information to help the authorised officer 5
ascertain whether this Act is being complied with. 6
(4) When making a requirement mentioned in subsection (3)(g) or (h), 7
the authorised officer must warn the person it is an offence to fail to 8
comply with the requirement unless the person has a reasonable excuse. 9
135 Failure to help authorised officer 10
(1) A person required to give reasonable help under section 134(3)(g) 11
must comply with the requirement unless the person has a reasonable 12
excuse. 13
Maximum penalty--50 penalty units. 14
(2) If an individual is required under section 134(3)(g) to give 15
information, or produce a document, it is a reasonable excuse for the 16
individual not to comply with the requirement that complying with the 17
requirement might tend to incriminate the individual. 18
136 Failure to give information 19
(1) A person of whom a requirement is made under section 134(3)(h) 20
must comply with the requirement unless the person has a reasonable 21
excuse. 22
Maximum penalty--50 penalty units. 23
(2) It is a reasonable excuse for an individual not to comply with the 24
requirement that complying with the requirement might tend to incriminate 25
the individual. 26
Subdivision 4--Power to seize evidence 27
137 Seizing evidence at a place that may be entered without consent 28
or warrant 29
An authorised officer who enters a place that may be entered under 30
division 2, subdivision 1 without the consent of the occupier and without a 31
s 138 82 s 139
Torres Strait Islander Cultural Heritage Bill 2003
warrant, may seize a thing at the place if the authorised officer reasonably 1
believes the thing is evidence of an offence against this Act. 2
138 Seizing evidence at a place that may only be entered with consent 3
or warrant 4
(1) This section applies if-- 5
(a) an authorised officer is authorised to enter a place under 6
division 2, subdivision 1 only with the consent of the occupier of 7
the place or a warrant; and 8
(b) the authorised officer enters the place after obtaining the 9
necessary consent or warrant. 10
(2) If the authorised officer enters the place with the occupier's consent, 11
the authorised officer may seize a thing at the place if-- 12
(a) the authorised officer reasonably believes the thing is evidence of 13
an offence against this Act; and 14
(b) seizure of the thing is consistent with the purpose of entry as told 15
to the occupier when asking for the occupier's consent. 16
(3) If the authorised officer enters the place with a warrant, the 17
authorised officer may seize the evidence for which the warrant was issued. 18
(4) The authorised officer also may seize anything else at the place if the 19
authorised officer reasonably believes-- 20
(a) the thing is evidence of an offence against this Act; and 21
(b) the seizure is necessary to prevent the thing being-- 22
(i) hidden, lost or destroyed; or 23
(ii) used to continue, or repeat, the offence. 24
(5) Also, the authorised officer may seize a thing at the place if the 25
authorised officer reasonably believes it has just been used in committing 26
an offence against this Act. 27
139 Securing seized things 28
Having seized a thing, an authorised officer may-- 29
(a) move the thing from the place where it was seized (the "place of 30
seizure"); or 31
s 140 83 s 141
Torres Strait Islander Cultural Heritage Bill 2003
(b) leave the thing at the place of seizure but take reasonable action 1
to restrict access to it. 2
3
Examples of restricting access to a thing--
4
1. Sealing a thing and marking it to show access to it is restricted.
5
2. Sealing the entrance to a room where the seized thing is situated and
6
marking the entrance to show access to the room is restricted.
140 Tampering with seized things 7
If an authorised officer restricts access to a seized thing, a person must 8
not tamper, or attempt to tamper, with the thing, or something restricting 9
access to the thing, without an authorised officer's approval. 10
Maximum penalty--50 penalty units. 11
141 Power to support seizure 12
(1) To enable a thing to be seized, an authorised officer may require the 13
person in control of it-- 14
(a) to take it to a stated reasonable place by a stated reasonable time; 15
and 16
(b) if necessary, to remain in control of it at the stated place for a 17
reasonable time. 18
(2) The requirement-- 19
(a) must be made by notice in the approved form; or 20
(b) if for any reason it is not practicable to give the notice, may be 21
made orally and confirmed by notice in the approved form as 22
soon as practicable. 23
(3) A further requirement may be made under this section about the 24
same thing if it is necessary and reasonable to make the further 25
requirement. 26
(4) A person of whom a requirement is made under subsection (1) or (3) 27
must comply with the requirement unless the person has a reasonable 28
excuse. 29
Maximum penalty for subsection (4)--50 penalty units. 30
s 142 84 s 144
Torres Strait Islander Cultural Heritage Bill 2003
142 Receipts for seized things 1
(1) As soon as practicable after an authorised officer seizes a thing, the 2
authorised officer must give a receipt for it to the person from whom it was 3
seized. 4
(2) However, if for any reason it is not practicable to comply with 5
subsection (1), the authorised officer must leave the receipt at the place of 6
seizure in a conspicuous position and in a reasonably secure way. 7
(3) The receipt must describe generally each thing seized and its 8
condition. 9
(4) This section does not apply to a thing if it is impracticable or would 10
be unreasonable to give the receipt, given the thing's nature, condition and 11
value. 12
143 Return of seized things 13
(1) If a seized thing has not been forfeited, the authorised officer must 14
return it to its owner-- 15
(a) at the end of 6 months; or 16
(b) if a proceeding for an offence involving the thing is started within 17
6 months--at the end of the proceeding and any appeal from the 18
proceeding. 19
(2) Despite subsection (1), unless the thing has been forfeited, the 20
authorised officer must immediately return a thing seized as evidence to its 21
owner if the authorised officer stops being satisfied its continued retention 22
as evidence is necessary. 23
144 Access to seized things 24
(1) Until a seized thing is forfeited or returned, an authorised officer 25
must allow its owner to inspect it and, if it is a document, to copy it. 26
(2) Subsection (1) does not apply if it is impracticable or would be 27
unreasonable to allow the inspection or copying. 28
s 145 85 s 146
Torres Strait Islander Cultural Heritage Bill 2003
Subdivision 5--Power to obtain information 1
145 Power to require name and address 2
(1) This section applies if-- 3
(a) an authorised officer finds a person committing an offence 4
against this Act; or 5
(b) an authorised officer finds a person in circumstances that lead, or 6
has information that leads, the authorised officer to reasonably 7
suspect the person has just committed an offence against this Act. 8
(2) The authorised officer may require the person to state the person's 9
name and residential address. 10
(3) When making the requirement, the authorised officer must warn the 11
person it is an offence to fail to state the person's name or residential 12
address unless the person has a reasonable excuse. 13
(4) The authorised officer may require the person to give evidence of the 14
correctness of the stated name or residential address if the authorised 15
officer reasonably suspects the stated name or address is false. 16
(5) A requirement under subsection (2) or (4) is called a "personal 17
details requirement". 18
146 Failure to give name or address 19
(1) A person of whom a personal details requirement is made must 20
comply with the requirement unless the person has a reasonable excuse. 21
Maximum penalty--20 penalty units. 22
(2) A person does not commit an offence against subsection (1) if-- 23
(a) the person was required to state the person's name and residential 24
address by an authorised officer who suspected the person had 25
committed an offence against this Act; and 26
(b) the person is not proved to have committed the offence. 27
s 147 86 s 148
Torres Strait Islander Cultural Heritage Bill 2003
Division 3--General enforcement matters 1
147 Notice of damage 2
(1) This section applies if-- 3
(a) an authorised officer damages property when exercising or 4
purporting to exercise a power; or 5
(b) a person (the "other person") acting under the direction of an 6
authorised officer damages property. 7
(2) The authorised officer must immediately give notice of particulars of 8
the damage to the person who appears to the authorised officer to be the 9
owner of the property. 10
(3) If the authorised officer believes the damage was caused by a latent 11
defect in the property or circumstances beyond the authorised officer's or 12
other person's control, the authorised officer may state the belief in the 13
notice. 14
(4) If, for any reason, it is impracticable to comply with subsection (2), 15
the authorised officer must leave the notice in a conspicuous position and 16
in a reasonably secure way where the damage happened. 17
(5) This section does not apply to damage the authorised officer 18
reasonably believes is trivial. 19
(6) In this section-- 20
"owner", of property, includes the person in possession or control of it. 21
148 Compensation 22
(1) A person may claim from the chief executive the cost of repairing or 23
replacing property damaged because of the exercise or purported exercise 24
of a power under a declared provision. 25
(2) Without limiting subsection (1), compensation may be claimed for 26
loss or expense incurred in complying with a requirement made of the 27
person under the declared provisions. 28
(3) Compensation may be claimed and ordered to be paid in a 29
proceeding-- 30
(a) brought in a court with jurisdiction for the recovery of the 31
amount of compensation claimed; or 32
s 149 87 s 151
Torres Strait Islander Cultural Heritage Bill 2003
(b) for an offence against this Act brought against the person 1
claiming compensation. 2
(4) A court may order compensation to be paid only if it is satisfied it is 3
just to make the order in the circumstances of the particular case. 4
149 False or misleading information 5
A person must not give information to an authorised officer the person 6
knows is false or misleading in a material particular. 7
Maximum penalty--50 penalty units. 8
150 False or misleading documents 9
(1) A person must not give an authorised officer a document containing 10
information the person knows is false or misleading in a material 11
particular. 12
Maximum penalty--50 penalty units. 13
(2) Subsection (1) does not apply to a person if the person, when giving 14
the document-- 15
(a) tells the authorised officer, to the best of the person's ability, how 16
it is false or misleading; and 17
(b) if the person has, or can reasonably obtain, the correct 18
information--gives the correct information. 19
151 Obstructing authorised officers 20
(1) A person must not obstruct an authorised officer in the exercise of a 21
power unless the person has a reasonable excuse. 22
Maximum penalty--50 penalty units. 23
(2) If a person has obstructed an authorised officer and the authorised 24
officer decides to proceed with the exercise of the power, the authorised 25
officer must warn the person that-- 26
(a) it is an offence to obstruct the authorised officer unless the person 27
has a reasonable excuse; and 28
(b) the authorised officer considers the person's conduct is an 29
obstruction. 30
s 152 88 s 153
Torres Strait Islander Cultural Heritage Bill 2003
(3) In this section-- 1
"obstruct" includes hinder and attempt to obstruct. 2
PART 9--MISCELLANEOUS PROVISIONS 3
152 Delegations 4
(1) The Minister may delegate the Minister's powers under this Act to-- 5
(a) another Minister; or 6
(b) an appropriately qualified public service officer. 7
(2) The chief executive may delegate the chief executive's powers under 8
this Act to an appropriately qualified public service officer. 9
(3) In this section-- 10
"appropriately qualified" includes having the qualifications, experience 11
or standing appropriate to the exercise of the power. 12
13
Example of standing--
14
a person's classification level in the public service
153 Access to land 15
(1) A person who wishes to enter land to perform an activity 16
(the "cultural heritage activity") under this Act must consult with the 17
owner or occupier of the land about obtaining the necessary access. 18
19
Example--
20
The sponsor for a cultural heritage management plan would need to consult with the
21
owner or occupier of land to obtain access required to properly assess Torres Strait
22
Islander cultural heritage values for developing the plan.
(2) However, if the person is authorised under another Act to enter the 23
land to carry out activities for a project, and the cultural heritage activity is 24
a necessary complementary or ancillary activity to the project-- 25
(a) the person is also authorised to enter the land to perform the 26
cultural heritage activity; and 27
s 154 89 s 155
Torres Strait Islander Cultural Heritage Bill 2003
(b) unless otherwise agreed between the person and the owner or 1
occupier, the conditions of access that apply are the same 2
conditions of access that apply under the other Act. 3
(3) The authority given to the person under subsection (2) extends to 4
agents and employees of the person acting under the authority of the 5
person. 6
(4) If the person is the sponsor for a cultural heritage management plan, 7
the authority also extends to endorsed parties for the plan and their 8
representatives, if their access to the land is-- 9
(a) reasonably required to properly assess Torres Strait Islander 10
cultural heritage values for developing the plan; and 11
(b) approved by the sponsor. 12
154 Advisory committees 13
(1) The Minister may establish advisory committees as the Minister 14
considers appropriate. 15
(2) An advisory committee has the function of advising the Minister in 16
relation to the particular issues the Minister refers to it. 17
(3) A member of an advisory committee holds the member's 18
appointment on the conditions decided by the Minister. 19
(4) The Minister may at any time end the appointment of a member of an 20
advisory committee. 21
155 Purchase or compulsory acquisition to protect cultural heritage 22
(1) The Minister may issue a certificate (an "acquisition certificate") 23
for land if the Minister is satisfied that the State's purchase or compulsory 24
acquisition of the land is necessary to manage, preserve or protect Torres 25
Strait Islander cultural heritage. 26
(2) If the acquisition certificate relates to a lease or easement under the 27
Land Act 1994, the lease or easement may be resumed under that Act. 28
(3) If the acquisition certificate relates to private land, the management, 29
preservation or protection of Torres Strait Islander cultural heritage is a 30
purpose for which the land may be taken under the Acquisition of Land Act 31
1967. 32
s 156 90 s 156
Torres Strait Islander Cultural Heritage Bill 2003
156 Proceedings for an offence 1
(1) A proceeding for an offence against this Act, other than an indictable 2
offence, must be taken in a summary way under the Justices Act 1886 3
within-- 4
(a) 1 year after the offence is committed; or 5
(b) 6 months after the commission of the offence comes to the 6
complainant's knowledge, but within 2 years after the 7
commission of the offence. 8
(2) A proceeding for an offence against this Act that is an indictable 9
offence may be taken, at the prosecution's election-- 10
(a) by way of summary proceedings under the Justices Act 1886; or 11
(b) on indictment. 12
(3) A proceeding against a person for an indictable offence must be 13
before a magistrate if it is a proceeding-- 14
(a) for the summary conviction of the person; or 15
(b) for an examination of witnesses in relation to the charge. 16
(4) If a proceeding for an indictable offence is brought before a justice 17
who is not a magistrate, jurisdiction is limited to taking or making a 18
procedural action or order within the meaning of the Justices of the Peace 19
and Commissioners for Declarations Act 1991. 20
(5) If-- 21
(a) a person charged with an indictable offence asks at the start of a 22
summary proceeding for the offence that the charge be 23
prosecuted on indictment; or 24
(b) the magistrate hearing a charge of an indictable offence considers 25
the charge should be prosecuted on indictment; 26
the magistrate-- 27
(c) must not decide the charge as a summary offence; and 28
(d) must proceed by way of a committal proceeding. 29
(6) If a magistrate acts under subsection (5)-- 30
(a) any plea of the person charged, made at the start of the 31
proceeding, must be disregarded; and 32
s 157 91 s 159
Torres Strait Islander Cultural Heritage Bill 2003
(b) any evidence brought in the proceeding before the magistrate 1
decided to act under subsection (5) is taken to be evidence in the 2
proceeding for the committal of the person for trial or sentence; 3
and 4
(c) before committing the person for trial or sentence, the magistrate 5
must make a statement to the person under the Justices Act 1886, 6
section 104(2)(b). 7
(7) The maximum penalty that may be imposed on a summary 8
conviction of an individual of an indictable offence is as follows-- 9
(a) to the extent the penalty imposed is a number of penalty 10
units--200 penalty units; 11
(b) to the extent the penalty imposed is imprisonment--1 year's 12
imprisonment. 13
(8) The maximum penalty that may be imposed on a summary 14
conviction of a corporation of an indictable offence is 2 000 penalty units. 15
(9) An indictable offence under this Act is a misdemeanour. 16
(10) In this section-- 17
"indictable offence" means an offence against this Act for which the 18
maximum penalty for an individual is-- 19
(a) 1 000 or more penalty units; or 20
(b) at least 2 years imprisonment, whether or not the penalty also 21
includes a number of penalty units. 22
157 Review of Act 23
The Minister must review the efficacy and efficiency of this Act within 24
5 years of its commencement. 25
158 Approval of forms 26
The chief executive may approve forms for use under this Act. 27
159 Regulation-making power 28
(1) The Governor in Council may make regulations under this Act. 29
(2) A regulation may be made about fees payable under this Act. 30
s 160 92 s 162
Torres Strait Islander Cultural Heritage Bill 2003
(3) A regulation may provide for a maximum penalty of not more than 1
20 penalty units for a contravention of a regulation. 2
PART 10--TRANSITIONAL PROVISIONS 3
160 Confirmation of ownership of Torres Strait Islander 4
cultural heritage before commencement 5
(1) This Act is not generally intended to interfere with ownership of 6
Torres Strait Islander cultural heritage established before the Act's 7
commencement. 8
(2) A person's ownership of Torres Strait Islander cultural heritage is 9
confirmed under this Act if, immediately before the commencement of this 10
section, the person was the owner of the cultural heritage. 11
(3) Subsection (2) does not apply to Torres Strait Islander cultural 12
heritage if, under part 2, division 2 or 3, it becomes owned by Torres Strait 13
Islanders who have a traditional or familial link with it. 14
161 Foundation material for database 15
As soon as practicable after the commencement of this section, the chief 16
executive must take all reasonable steps to place on the database, as its 17
foundation information, all information about Torres Strait Islander cultural 18
heritage accumulated by the State before the commencement of this 19
section. 20
162 Existing agreement for carrying out activity 21
A person who carries out an activity under the requirements for carrying 22
out the activity that are included in an existing agreement to which the 23
person is a party does not commit an offence against a cultural heritage 24
protection provision in relation to Torres Strait Islander cultural heritage 25
expressly or impliedly the subject of the agreement. 26
s 163 93 s 165
Torres Strait Islander Cultural Heritage Bill 2003
163 Permit under repealed Act 1
A permit issued under section 284 of the repealed Act and in force 2
immediately before the commencement of this section, to the extent it 3
relates to Torres Strait Islander cultural heritage-- 4
(a) continues in force according to its terms; and 5
(b) may be dealt with under the provisions of the repealed Act 6
relating to it, other than section 295 of the repealed Act, as if the 7
provisions had not been repealed. 8
164 Authority obtained before commencement 9
(1) This section applies if-- 10
(a) under an Act other than this Act, an authority is required for an 11
activity; and 12
(b) the authority was obtained before the commencement of this 13
section. 14
(2) The holder of the authority may apply to the Minister for the 15
Minister's approval of measures ("transitional measures") identifying 16
reasonable and practicable measures for ensuring the activity under the 17
authority avoids or minimises harm to Torres Strait Islander cultural 18
heritage. 19
(3) The transitional measures have effect, in relation to the carrying out 20
of the activity under the authority, as cultural heritage duty of care 21
guidelines. 22
(4) In this section-- 23
"authority" includes a lease, licence, permit or approval. 24
165 Cultural heritage arrangements for project authorised 25
before commencement 26
(1) This section applies to a project if-- 27
4 Section 28 (Permit to explore etc. Landscapes Queensland and Queensland Estate)
of the repealed Act
5 Section 29 (Renewal of permit) of the repealed Act
s 166 94 s 166
Torres Strait Islander Cultural Heritage Bill 2003
(a) under an Act other than this Act, an authority is required for the 1
project; and 2
(b) the authority was obtained before the commencement of this 3
section; and 4
(c) for the purposes of obtaining the authority, arrangements were 5
put in place, whether by placing conditions on the authority or in 6
some other way, directed at ensuring that the project would avoid 7
or minimise harm to Torres Strait Islander cultural heritage. 8
(2) Until the project is finished, a person who, under the authority, 9
carries out an activity for the project under the arrangements does not 10
commit an offence against a cultural heritage protection provision in 11
relation to Torres Strait Islander cultural heritage expressly or impliedly the 12
subject of the arrangements. 13
(3) In this section-- 14
"authority" includes a lease, licence, permit or approval. 15
166 Cultural heritage arrangements for project not authorised 16
before commencement 17
(1) This section applies to a project if-- 18
(a) under an Act other than this Act, an authority is required for the 19
project; and 20
(b) the authority was applied for, but not obtained, before the 21
commencement of this section; and 22
(c) the applicant was notified before the commencement of this 23
section that an EIS was required for the project; and 24
(d) for the purposes of obtaining the authority, arrangements were 25
put in place, whether by placing conditions on the authority or in 26
some other way, directed at ensuring that the project would avoid 27
or minimise harm to Torres Strait Islander cultural heritage. 28
(2) Part 7, division 2 does not apply to the project. 29
(3) Until the project is finished, a person who, under the authority, 30
carries out an activity for the project under the arrangements does not 31
commit an offence against a cultural heritage protection provision in 32
relation to Torres Strait Islander cultural heritage expressly or impliedly the 33
subject of the arrangements. 34
s 167 95 s 167
Torres Strait Islander Cultural Heritage Bill 2003
(4) In this section-- 1
"authority" includes a lease, licence, permit or approval. 2
167 References to repealed Act 3
In an Act or document, a reference to the Cultural Record (Landscapes 4
Queensland and Queensland Estate) Act 1987 may, if the context permits, 5
be taken to be a reference to this Act. 6
96
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE 1
DICTIONARY 2
section 7 3
"alternate dispute resolution arrangements" means arrangements that, 4
to the greatest practicable extent, provide for the handling of disputes 5
other than before a court. 6
"appeal period"-- 7
(a) for part 6, division 5--see section 75; or 8
(b) for part 7, division 6--see section 110. 9
"approved cultural heritage management plan" means a cultural 10
heritage management plan that has been approved by the chief 11
executive or the Minister under part 7. 12
"approved form" means a form approved by the chief executive under 13
section 158. 14
"area" means-- 15
(a) an area of land; or 16
(b) an expanse of water; or 17
(c) an area of land under water; or 18
(d) any combination of 2 or more of paragraphs (a) to (c). 19
"authorised officer" means a person appointed as an authorised officer 20
under section 121. 21
"basic information requirement"-- 22
(a) for a written notice (proposed study)--see section 57; or 23
(b) for a written notice (proposed plan)--see section 92. 24
"Commonwealth Native Title Act" means the Native Title Act 1993 25
(Cwlth). 26
"consultation party", for a cultural heritage management plan, means-- 27
(a) the sponsor for the plan; or 28
97
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
(b) an endorsed party for the plan. 1
"consultation period", for a cultural heritage management plan, means 2
the period of 84 days starting immediately after the period of 30 days 3
after the notice day (proposed plan). 4
"cultural heritage assessor", for a cultural heritage study, means a person 5
engaged under section 68 as a cultural heritage assessor for the study. 6
"cultural heritage duty of care" see section 23. 7
"cultural heritage duty of care guidelines" see section 28. 8
"cultural heritage management plan" means a document providing for 9
how activities for a project are to be managed for their impact on 10
Torres Strait Islander cultural heritage. 11
"cultural heritage protection provision" means section 23, 24, 25 or 26.6 12
"cultural heritage study" means a comprehensive study of Torres Strait 13
Islander cultural heritage in an area conducted under part 6 for the 14
purpose of recording the findings of the study on the register. 15
"database" means the Torres Strait Islander Cultural Heritage Database 16
established under section 38. 17
"declared provision" means any of the following provisions-- 18
· section 128 19
· section 134 20
· sections 137 to 139 21
· section 141. 22
"EIS" means an environmental impact statement. 23
"endorsed party" means-- 24
(a) for a cultural heritage study--a Torres Strait Islander party 25
endorsed under section 62, 63, 64 or 65 to take part in the study; 26
or 27
6 Section 23 (Cultural heritage duty of care), 24 (Unlawful harm to Torres Strait
Islander cultural heritage), 25 (Prohibited excavation, relocation and taking away) or
26 (Unlawful possession of Torres Strait Islander cultural heritage)
98
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
(b) for a cultural heritage management plan--a Torres Strait Islander 1
party endorsed under section 97, 98, 99, 100 or 101 to take part 2
in developing the plan. 3
"existing agreement" means an agreement-- 4
(a) that was entered into before the commencement of this schedule, 5
and that is still in force, with an entity that becomes, on the 6
commencement of this schedule, a Torres Strait Islander party; 7
and 8
(b) that expressly or impliedly deals with Torres Strait Islander 9
cultural heritage. 10
"facsimile warrant" see section 132(4). 11
"harm", to Torres Strait Islander cultural heritage, means damage or injury 12
to, or desecration or destruction of, the cultural heritage. 13
"information protection provision" means section 29. 14
"IPA" means the Integrated Planning Act 1997. 15
"land user" means a person carrying out, or proposing to carry out, 16
activities on land likely to materially affect the land. 17
18
Example of activities--
19
farming activities, construction activities
"National Native Title Register" means the National Native Title Register 20
under the Commonwealth Native Title Act. 21
"native title agreement" means-- 22
(a) an indigenous land use agreement registered on the Register of 23
Indigenous Land Use Agreements; or 24
(b) any of the following under part 2, division 3, subdivision P of the 25
Commonwealth Native Title Act-- 26
(i) an agreement mentioned in section 31(1)(b); 27
(ii) a determination of the relevant Minister under section 36A; 28
(iii) a determination of the arbitral body under section 38; or 29
(c) an access agreement or negotiated agreement under the native 30
title mining provisions. 31
99
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
"native title mining provisions" means the Mineral Resources Act 1989, 1
parts 12 to 18, and part 19, divisions 2 and 5. 2
"native title party", for an area, see section 34. 3
"native title protection conditions" means native title protection 4
conditions under the Mineral Resources Act 1989, section 25AA, 5
141AA or 194AAA. 6
"native title rights and interests" see the Commonwealth Native Title 7
Act, section 223. 8
"notice day (proposed plan)", for a cultural heritage management plan, 9
means the day nominated by the sponsor for the plan as the day that 10
may reasonably be assumed to be the day by which-- 11
(a) the written notice (proposed plan) for the plan will have been 12
received by each person to whom it is required to be given; and 13
(b) each public notice (proposed plan) required to be given will have 14
come to the attention of the persons to whom it is directed. 15
"notice day (proposed study)", for a cultural heritage study, means the 16
day nominated by the sponsor for the study as the day that may 17
reasonably be assumed to be the day by which-- 18
(a) the written notice (proposed study) for the study will have been 19
received by each person to whom it is required to be given; and 20
(b) each public notice (proposed study) required to be given will 21
have come to the attention of the persons to whom it is directed. 22
"owner", of an area, means the person for the time being entitled to receive 23
the rent for the area or who would be entitled to receive the rent for it 24
if it were let to a tenant for rent. 25
"party"-- 26
(a) for part 6, division 5--see section 75; or 27
(b) for part 7, division 6--see section 110. 28
"personal details requirement" see section 145(5). 29
"plan area", in relation to a cultural heritage management plan, means the 30
area the subject of the plan. 31
"private land" means land forming part of Queensland that is not State 32
land. 33
100
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
"project" includes-- 1
(a) a development or proposed development; and 2
(b) an action or proposed action; and 3
(c) a use or proposed use of land. 4
"project area", in relation to a project, means the area the subject of the 5
project, whether in construction or operational phases. 6
"public notice (proposed plan)" see section 96(2). 7
"public notice (proposed study)" see section 61(2). 8
"Queensland Museum" means the Board of the Queensland Museum 9
under the under the Queensland Museum Act 1970. 10
"register" means the Torres Strait Islander Cultural Heritage Register 11
established under section 46. 12
"registered native title body corporate" see the Commonwealth Native 13
Title Act, section 253. 14
"registered native title claimant" see the Commonwealth Native Title 15
Act, section 253. 16
"registered native title holder" means-- 17
(a) a registered native title body corporate; or 18
(b) an entity, other than a registered native title body corporate, that 19
is the subject of a determination of native title under the 20
Commonwealth Native Title Act and is registered on the National 21
Native Title Register as holding native title rights and interests. 22
"registered significant area" means an area recorded in the register as a 23
significant Torres Strait Islander area. 24
"registered significant object" means an object recorded in the register as 25
a significant Torres Strait Islander object. 26
"Register of Indigenous Land Use Agreements" means the Register of 27
Indigenous Land Use Agreements under the Commonwealth Native 28
Title Act. 29
"Register of Native Title Claims" means the Register of Native Title 30
Claims under the Commonwealth Native Title Act. 31
101
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
"repealed Act" means the Cultural Record (Landscapes Queensland and 1
Queensland Estate) Act 1987. 2
"representative body" see the Commonwealth Native Title Act, 3
section 253. 4
"sacred" means sacred according to Island custom. 5
"secret" means secret according to Island custom. 6
"significant Torres Strait Islander area" see section 9. 7
"significant Torres Strait Islander object" see section 10. 8
"sponsor" means-- 9
(a) for a cultural heritage study--the person who accepts 10
responsibility for the study; or 11
(b) for a cultural heritage management plan--means the person who 12
accepts responsibility for the plan. 13
"State land" means all land forming part of Queensland that is not 14
freehold land, or land contracted to be granted in fee-simple by the 15
State. 16
"stop order", for a person's activity, means an order of the Minister-- 17
(a) requiring the person to stop the activity; or 18
(b) prohibiting the person from starting the activity. 19
"study area", for a cultural heritage study, means the area the subject of 20
the study. 21
"Torres Strait Islander cultural heritage" see section 8. 22
"Torres Strait Islander cultural heritage body", for an area, means an 23
entity registered under part 4 as a Torres Strait Islander cultural 24
heritage body for the area. 25
"Torres Strait Islander human remains"-- 26
(a) includes burial objects and associated material; but 27
(b) does not include human remains-- 28
(i) buried under the authority of the law of Queensland or 29
another State; or 30
102
Torres Strait Islander Cultural Heritage Bill 2003
SCHEDULE (continued)
(ii) in or from a place recognised as a burial ground for 1
interment of human remains buried under the authority of 2
the law of Queensland or another State. 3
"Torres Strait Islander party", for an area, see section 35. 4
"tribunal" means the Land and Resources Tribunal. 5
"warrant form" see section 132(5). 6
"written notice (proposed plan)" see section 91(1). 7
"written notice (proposed study)" see section 56(1). 8
© State of Queensland 2003
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