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1
Torres Strait Islander Cultural Heritage Bill 2003
TORRES STRAIT ISLANDER CULTURAL
HERITAGE BILL 2003
EXPLANATORY NOTES
Short Title
The Act will be known as the Torres Strait Islander Cultural Heritage
Bill 2003
Policy Objectives of the Bill
The policy objectives of the Bill are:
· To recognise Torres Strait Islander ownership of certain human
remains; secret and sacred material in State collections; and
items of cultural heritage removed from an area under the
authority of the legislation. In other circumstances the State
retains a residual ownership of cultural heritage generally to
ensure effective protection and regulation.
· To recognise the fundamental right of Torres Strait Islander
people to be involved in the process of assessment and
management of activities that may harm their cultural heritage.
· To provide certainty of process and timeframes for the
assessment of cultural heritage and the management of possible
impacts upon it.
· To establish a duty of care for all persons to take reasonable and
practicable steps to prevent harming cultural heritage. The
legislation sets out key indicia as to how the duty of care may be
met. The duty of care is key to ensuring the legislation is flexible
and workable and not unduly prescriptive.
· To establish mandatory triggers, as well as set timeframes and
procedures, for the assessment of cultural heritage where high
impact activities are proposed (ie. those activities requiring an
Environmental Impact Statement or where a material change in
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Torres Strait Islander Cultural Heritage Bill 2003
land use is proposed over an area entered on the Torres Strait
Islander cultural heritage register).
· To create penalties intended to act as a deterrent and to reflect the
importance attached to safeguarding the cultural heritage values
of Queensland.
· To establish a register of Torres Strait Islander cultural heritage.
Information may be placed on the register following a cultural
heritage study to assess the significance of an area, as well as
other information necessary to help the consideration of Torres
Strait Islander cultural heritage - maximum penalties apply to
protect heritage entered on the register.
· To establish a database of Torres Strait Islander cultural heritage.
The database will contain information about cultural heritage
values collated by the Environmental Protection Agency since
the 1930s. Information may be added to the database without
undertaking a formal cultural heritage study. Information may be
provided from the database on an "as needs basis" to ensure the
sensitivity and integrity of the information is respected.
· To ensure that cultural heritage activities undertaken in
accordance with the terms of a native title agreement, or
otherwise pursuant to an agreement with the appropriate Torres
Strait Islander parties, will remain valid under the new
legislation.
Reasons for the Bill
On 24 December 1998, the Government announced a review of the
Cultural Record (Landscapes Queensland and Queensland Estate) Act
1987 to address inadequacies in the current legislative framework. The
Cultural Record (Landscapes Queensland and Queensland Estate) Act
1987 fails to provide adequate protection to Indigenous cultural heritage by
focusing on the protection of archaeological evidence of human occupation
of Queensland. It fails to protect areas of Queensland, significant solely
because of their significance under Torres Strait Islander custom or the
history of traditional owners of country. The Cultural Record (Landscapes
Queensland and Queensland Estate) Act 1987 also provides little guidance
about how proponents may address cultural heritage matters with certainty,
in a timely and cost efficient manner.
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Torres Strait Islander Cultural Heritage Bill 2003
The Bill addresses these issues by providing proper protection for
significant Torres Strait Islander cultural heritage and creating flexible and
workable processes for addressing land use impacts with certainty.
Achieving the Policy Objectives of the Legislation
Where there is a traditional or familial link, the legislation recognises
Torres Strait Islander people's ownership of burial remains not otherwise
lawfully interred; ownership of secret and sacred material in State
collections; and items of cultural heritage removed from an area under the
authority of the legislation.
In other circumstances, the State will retain a residual ownership of
cultural heritage generally in order to ensure effective protection and
regulation and to maintain the integrity of the land tenure system (such as
where Torres Strait Islander cultural heritage is in situ on freehold land).
The legislation makes it clear that the State does not claim title to the land
upon which the cultural heritage is located.
Importantly, the legislation recognises the fundamental right of Torres
Strait Islander people to be involved in the process of assessment and
management of activities that may harm their cultural heritage. At the
same time, the legislation provides certainty of process and timeframes for
the assessment of cultural heritage and the management of possible
impacts upon it.
The legislation facilitates the identification of the Torres Strait Islander
people who should be involved in the cultural heritage assessment and
management process. This is done by linking into the procedures under
native title legislation or, where no native title claim has been registered
over an area, by using a process of public notification. At present, disputes
can arise between traditional owner groups because, in the absence of any
legislative guidance, developers can favour one traditional owner group
over another in situations where there may be more than one registered
native title claim to an area. This practice may be contrary to the
provisions of native title legislation. It is also inappropriate for any
registered native title claimant group to be excluded from the consideration
of cultural heritage issues within the area of their claim. Each registered
native title claimant group has established a prima facie case in the Federal
Court that they may hold native title and, consequently, until the native title
claims are resolved it is appropriate that each set of registered claimants be
involved in the process. (Approximately 58% of the State of Queensland is
currently subject to registered native title claims.)
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Torres Strait Islander Cultural Heritage Bill 2003
The creation of a duty of care underpins the legislation. The duty of care
will require persons to take all reasonable and practicable steps to prevent
harming cultural heritage. The legislation sets out key indicia as to how the
duty of care may be met. Factors relevant to whether the duty of care has
been met can relate to the nature of the proposed activity; the likelihood of
damage to Torres Strait Islander cultural heritage; and the nature and extent
of any consultation with the traditional owners. Duty of care guidelines
will be gazetted under the legislation stating ways in which the duty of care
can be met.
Additionally, the legislation establishes certain mandatory triggers for
the assessment and management of cultural heritage where high impact
activities are proposed, ie., those requiring an Environmental Impact
Statement or a material change of use over a registered cultural heritage
area under the Integrated Planning Act 1997. Importantly, this trigger can
be extended by regulation to cover additional activities. Other mandatory
triggers for the cultural heritage management planning process occur
where it is proposed to excavate, relocate or remove cultural heritage or
where a material change of use is proposed over an area entered on the
register of cultural heritage.
To achieve certainty of timeframe and process, the legislation establishes
a four month period, which can be extended by agreement, to develop a
cultural heritage management plan about the assessment of cultural
heritage and the management of impacts upon it.
The cultural heritage management planning process established by the
legislation reflects existing best practice. The process requires notification
and consultation with Torres Strait Islander parties. Consultation must
relate to how an activity may be managed in order to avoid or minimise
harm to cultural heritage.
Where agreement cannot be reached between the parties, the Land and
Resources Tribunal can assist with the provision of mediation or a
recommendation about the terms of the cultural heritage management plan.
Importantly, in light of the need to protect cultural heritage at both a State
and national level, the final decision on the terms of a cultural heritage
management plan rests with the State.
The legislation allows a cultural heritage management plan to be
developed voluntarily. This is an important feature of the legislation
intended to encourage industry to adopt best practice in circumstances
where the legislation does not automatically require a mandatory cultural
heritage management plan. The incentive for industry to do so is that any
activity undertaken in accordance with a cultural heritage management
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Torres Strait Islander Cultural Heritage Bill 2003
plan approved under the legislation satisfies the duty of care under the
legislation.
The duty of care (coupled with the ability to initiate voluntary cultural
heritage management plans) is key to ensuring the legislation is flexible
and workable without being unduly prescriptive in relation to particular
activities unlikely to affect cultural heritage values. The duty of care
removes the need for an excessive number of mandatory triggers for certain
activities such as small mining, most mineral exploration and prospecting.
At the same time, the legislation enables guidelines for complying with
the duty of care to be gazetted. Guidelines will be gazetted following
appropriate consultation with relevant stakeholders and industry groups.
The legislation has been drafted to ensure that it dovetails into the
procedures and timeframes set up under native title legislation. The new
legislation will link into existing processes under State and federal native
title legislation to ensure that all proper authorities are obtained from native
title parties and that they are directly involved in the assessment and
management planning process.
Penalties under the legislation are intended to act as a deterrent and to
reflect the importance attached to safeguarding the cultural heritage values
of Queensland. To reflect this, the most serious offences have been made
indictable. Given that some offences may not come to light for some time,
this will also enable more serious offences to be brought before the court
more than twelve months after they have been committed.
The legislation will establish a register of Torres Strait Islander cultural
heritage. Information may be placed on the register following a
comprehensive cultural heritage study to assess the significance of an area -
maximum penalties apply to protect heritage entered on the register.
Responsibility for assessing the levels of significance of cultural heritage is
a matter for the Torres Strait Islander party for the area although such an
assessment must be consistent with authoritative anthropological,
biogeographical, historical and archaeological information. The legislation
also establishes a cultural heritage database. The database will contain
information about the 14,000 or so places of cultural heritage value
collated by the Environmental Protection Agency since the 1930s.
Information may be added to the database without the necessity of
undertaking a formal cultural heritage study. Information may be provided
from the database on an "as needs basis" to ensure the sensitivity and
integrity of the information is respected.
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Torres Strait Islander Cultural Heritage Bill 2003
Transitional provisions ensure that activities undertaken in accordance
with the terms of a native title agreement, or otherwise pursuant to an
agreement with the appropriate Torres Strait Islander parties or where,
before the legislation commences, arrangements have been put in place to
address cultural heritage as part of an Environmental Impact Statement
approval obtained after the commencement of the legislation will be valid
under the new legislation.
Alternative ways of achieving the objective
The Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987 is inadequate in both the protection it provides to Torres Strait
Islander cultural heritage as well as the guidance it provides to proponents
to assist in addressing cultural heritage matters with certainty, in a timely
and cost efficient manner. In these circumstances, the Cultural Record
(Landscapes Queensland and Queensland Estate) Act 1987 must be
repealed.
Administrative cost to government of implementation
The Government has allocated $3.5M over the next four years to
implement the legislation. Costs are associated with the establishment of
the Torres Strait Islander Cultural Heritage Register, Torres Strait Islander
Cultural Heritage Database, funding to assist Torres Strait Islander Cultural
Heritage Bodies meet their responsibility under the legislation to identify
traditional owners for country and the placement of a Regional Cultural
Heritage Officer to assist in effective implementation in the Torres Strait.
Costs associated with legislative compliance will be accommodated by ex-
isting functions and activities.
Compliance with fundamental legislative principles
The Bill has been drafted with due regard to the fundamental legislative
principles outlined in section 4 of the Legislative Standards Act 1992.
Aspects of the Bill that raise possible breaches of fundamental legislative
principles are outlined below.
Section 15 - Ownership of Torres Strait Islander human remains
The Bill provides that Torres Strait Islander people own Torres Strait
Islander human remains to which they have a traditional or familial link
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Torres Strait Islander Cultural Heritage Bill 2003
(other than those lawfully buried) regardless of who may have owned the
human remains before the commencement of the section. The Bill does not
make it an offence to possess the Torres Strait Islander human remains but
does make it an offence for a person not to take all reasonable steps to
ensure the human remains are taken into the custody of the State as soon as
practicable. This will enable repatriation to occur in a culturally
appropriate manner in accordance with Torres Strait Islander custom.
Torres Strait Islander cultural heritage legislation must strike a balance
between the rights of individuals to hold other cultural heritage objects
lawfully obtained before the commencement of the legislation with the
right of Torres Strait Islander people to have their responsibilities in
relation to their human remains respected.
Section 32 - Stop Orders
The Bill enables the Minister to grant a stop order for an activity if there
are reasonable grounds for concluding that the activity will harm or have a
significant adverse impact on Torres Strait Islander cultural heritage. A stop
order may be granted for an initial period of 30 days and renewed once for
a further period of 30 days. For legislation to be effective in protecting
significant Torres Strait Islander cultural heritage values it is important that
a balance be struck between the rights of the individual and the need for the
community to be able to provide an effective deterrent to ensure land users
take proactive measures to meet their duty of care obligations to take all
reasonable and practicable measures not to harm Torres Strait Islander
cultural heritage. Given the complexities of the issues relating to the
protection and management of Torres Strait Islander cultural heritage,
including remoteness, an initial 30 day period, followed by a possible 30
day extension, is appropriate to resolve issues relating to the likelihood of
harm. The stop order is a necessary power to ensure protection and is
limited. At the end of the period, and in the absence of any resolution, the
State would need to seek a permanent in the Land and Resources Tribunal
and/or initiate a prosecution under the legislation.
Section 36 - Registration of a Torres Strait Islander Cultural Heritage
Body
The Bill enables the Minister to register an incorporated body as a Torres
Strait Islander cultural heritage body providing it meets certain criteria
under the legislation. The sole function of a Torres Strait Islander cultural
heritage body is to identify the right Torres Strait Islander party for an area
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Torres Strait Islander Cultural Heritage Bill 2003
for a person, such as a land user, who needs to know under the legislation.
The Minister may cancel the registration of a Torres Strait Islander cultural
heritage body if the Minister is satisfied that the entity is no longer the
appropriate body to identify the right Torres Strait Islander party for the
area. The cancellation of the registration of the Torres Strait Islander
cultural heritage body does not adversely affect the rights and liberties of
the individuals affected by the decision as under the legislation, in the
absence of a Torres Strait Islander cultural heritage body, notices must be
sent directly to the Torres Strait Islander parties for the area as defined in
sections 34 and 35 of the Bills.
Consultation
The following State agencies were consulted during the preparation of
the Bill:
· Department of Aboriginal and Torres Strait Islander Policy;
· Department of the Premier and Cabinet
· Department of Natural Resources and Mines;
· Department of Main Roads;
· Environmental Protection Agency;
· Department of Education;
· Arts Queensland;
· Treasury Department;
· Department of Local Government and Planning;
· Department of Primary Industries;
· Department of Justice; and
· Department of State Development.
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Torres Strait Islander Cultural Heritage Bill 2003
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 of the Bill sets out the short title of the proposed Act.
Clause 2 of the Bill provides for the commencement of the proposed Act
on a date to be fixed by proclamation.
Clause 3 of the Bill provides that the proposed Act will bind the State, as
well as the Commonwealth and other States to the extent the power of
Parliament permits, but makes it clear that the State will not be liable to be
prosecuted for an offence under the proposed Act.
Clause 4 of the Bill sets out the main purpose of the proposed Act as
being to provide effective recognition, protection and conservation of
Torres Strait Islander cultural heritage.
Clause 5 of the Bill sets out the fundamental principles underlying the
main purpose of the proposed Act. The principles are aimed at
acknowledging the importance of Torres Strait Islander people in assessing
and managing their cultural heritage and the need to establish timely and
efficient processes to enable this to occur. The intent of this clause is to
give fundamental guidance to people dealing with Torres Strait Islander
cultural heritage.
Clause 6 of the Bill sets out how the main purpose of the proposed Act is
to be achieved. The intent of this clause is to set out the major features in
the proposed Act that seek to achieve the effective recognition, protection
and conservation of Torres Strait Islander cultural heritage.
Clause 7 of the Bill refers to the dictionary in schedule 2 that defines
particular words used in the proposed Act.
Clause 8 of the Bill defines the meaning of "Torres Strait Islander
cultural heritage".
Clause 9 of the Bill defines the meaning of "significant Torres Strait
Islander area".
Clause 10 of the Bill defines the meaning of "significant Torres Strait
Islander object".
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 11 of the Bill includes as evidence of occupation, the area
immediately surrounding the object or structure, to the extent that the
surrounds cannot be separated. The intent in this clause, which is currently
in the Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987, is to recognise that often the area surrounding an object or
structure will need protection in order to effectively protect the object or
structure.
Clause 12 of the Bill provides that it is not necessary for an area to
contain markings or other physical evidence indicating Torres Strait
Islander occupation for the area to be a significant Torres Strait Islander
area. The clause gives examples including a ceremonial place, a burial
place or the site of a massacre.
Clause 13 of the Bill provides that the Act is not to be interpreted in a
way that would prejudice rights of ownership of Torres Strait Islander
people in their cultural heritage held for traditional purposes or native title.
The intent of this clause is to continue the protection of customary rights
provided under the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987 and ensure that the Bill is consistent with the
Native Title Act 1993 (Cth).
PART 2--OWNERSHIP, CUSTODIANSHIP AND
POSSESSION OF TORRES STRAIT ISLANDER
CULTURAL HERITAGE
Clause 14 of the Bill sets out the object and intent of part 2.
Clause 15 of the Bill provides that Torres Strait Islander human remains
are owned by the Torres Strait Islander people who have a traditional or
familial link with the human remains. The intent of this clause is to confer
legal ownership of Torres Strait Islander human remains in the appropriate
Torres Strait Islander people regardless of who claims ownership before the
Bill commences.
Clause 16 of the Bill deals with Torres Strait Islander human remains in
the custody of the State. The clause makes provision for the Torres Strait
Islander owner of the human remains to ask the State entity with custody of
the remains to continue to be the custodian of the remains or, alternatively
the person can ask to have the human remains returned. The intent of this
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Torres Strait Islander Cultural Heritage Bill 2003
clause is to enable Torres Strait Islander people to have a level of control in
relation to the repatriation process for Torres Strait Islander human remains
in the custody of the State.
Clause 17 of the Bill provides that a person who possesses Torres Strait
Islander human remains but does not have a traditional or familial link with
the human remains must take all reasonable steps to ensure that the human
remains are taken into the custody of the chief executive. This section does
not apply to Torres Strait Islander human remains in the custody of the
State because the chief executive is already aware of the existence of these
Torres Strait Islander human remains. The intent of this clause is to
promote the return of Torres Strait Islander human remains to their rightful
owners in accordance with Torres Strait Islander custom.
Clause 18 of the Bill provides that a person who knows of the existence
and location of Torres Strait Islander human remains must advise the chief
executive as soon as it is practicable to do so. The intent of this clause is to
promote the reporting of locations of Torres Strait Islander human remains
so they may be dealt with in accordance with Torres Strait Islander custom.
Clause 19 of the Bill provides that Torres Strait Islander cultural
heritage of a secret or sacred nature in the custody of the State becomes
owned by the Torres Strait Islander people who have a traditional or
familial link with the object on commencement of the legislation. The
intent of this clause is to confer legal ownership of secret and sacred
cultural heritage in the custody of the State on the appropriate Torres Strait
Islander people. The clause also makes provision for the Torres Strait
Islander owner of the object to ask the State entity with custody of the
secret or sacred object to continue to be the custodian or to have the object
returned.
Clause 20 of the Bill provides that, except in certain circumstances, the
State retains a residual ownership of Torres Strait Islander cultural heritage.
The clause clarifies that the State does not own the title to land where the
cultural heritage is located. This allows the State to best protect the Torres
Strait Islander cultural heritage regardless of where is it found. The intent
of this clause is to ensure that Torres Strait Islander people with a
traditional or familial link to certain Torres Strait Islander cultural heritage,
and not the State, own Torres Strait Islander cultural heritage that is human
remains, or secret and sacred material in the custody of the State or Torres
Strait Islander cultural heritage lawfully taken away from an area. The
clause confirms, and does not interfere with, the rights of ownership in
Torres Strait Islander cultural heritage, not comprising Torres Strait
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Torres Strait Islander Cultural Heritage Bill 2003
Islander human remains, lawfully obtained by other people before the
proposed Act commences.
Clause 21 of the Bill provides that the owner or occupier is entitled to
continued use and enjoyment of land despite the existence of Torres Strait
Islander cultural heritage to the extent that the use and enjoyment does not
harm the cultural heritage. The intent of this clause is to continue the
positions existing under the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987.
Clause 22 of the Bill makes provision for the Queensland Museum to act
in relation to Torres Strait Islander cultural heritage.
PART 3--PROTECTION OF TORRES STRAIT
ISLANDER CULTURAL HERITAGE
Clause 23 of the Bill sets out the cultural heritage duty of care. People
must take all reasonable and practicable measures to avoid harming Torres
Strait Islander cultural heritage. This is a cornerstone of the protection
afforded under the proposed Act. The clause gives detailed guidance about
what the court is to consider when examining an alleged breach of the duty
of care. A person does not breach the duty of care if the person is acting
under the Act or in accordance with a native title agreement, or other
agreement, with the Torres Strait Islander party or an approved cultural
heritage management plan, or in compliance with the duty of care or duty
of care guidelines, or in accordance with native title protection conditions;
or the person owns the cultural heritage or is acting with the owner's
consent; or the act is necessary because of an emergency. The intent in this
clause is to prevent harm to Torres Strait Islander cultural heritage.
Clause 24 of the Bill makes it an offence to harm Torres Strait Islander
cultural heritage if the person knows or ought reasonably to know it is
Torres Strait Islander cultural heritage. An offence is not committed if the
person is acting under the Act or in accordance with a native title
agreement, or other agreement, with the Torres Strait Islander party or an
approved cultural heritage management plan, or in compliance with the
duty of care or duty of care guidelines, or in accordance with native title
protection conditions; or the person owns the cultural heritage or is acting
with the owner's consent; or the act is necessary because of an emergency.
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Torres Strait Islander Cultural Heritage Bill 2003
The intent of this clause is to prevent harm to Torres Strait Islander cultural
heritage.
Clause 25 of the Bill makes it an offence to excavate, relocate or take
away Torres Strait Islander cultural heritage. An offence is not committed if
the person is acting under the Act or in accordance with a native title
agreement, or other agreement, with the Torres Strait Islander party or an
approved cultural heritage management plan, or in compliance with the
duty of care or duty of care guidelines, or in accordance with native title
protection conditions; or the person owns the cultural heritage or is acting
with the owner's consent; or the act is necessary because of an emergency.
The intent of this clause is to specifically target activities that affect Torres
Strait Islander cultural heritage.
Clause 26 of the Bill makes it an offence to possess an object that is
Torres Strait Islander cultural heritage if the person knows or ought
reasonably to know it is Torres Strait Islander cultural heritage. An offence
is not committed if the person is acting under the Act or in accordance with
a native title agreement, or other agreement, with the Torres Strait Islander
party or an approved cultural heritage management plan, or in compliance
with the duty of care or duty of care guidelines, or in accordance with
native title protection conditions; or the person owns the cultural heritage
or is acting with the owner's consent; or the act is necessary because of an
emergency. The intent of this clause is to encourage Torres Strait Islander
cultural heritage to be appropriately dealt with.
Clause 27 of the Bill allows a court, where a person is convicted of an
offence involving harming or possessing Torres Strait Islander cultural
heritage, to make orders about the cost of any repair or restoration of things
that need to be repaired because of the offence. The intent of this clause is
to allow a court to make provision for repairing damage to cultural
heritage.
Clause 28 of the Bill allows the Minister to gazette guidelines about
complying with the cultural heritage duty of care. The intent in this clause
is to enable reasonable and practical guidelines to be drawn up, following
appropriate consultation, to assist people meet their cultural heritage duty
of care.
Clause 29 of the Bill makes it an offence in certain circumstances for a
person to include secret or sacred information in a report or other document
submitted to the chief executive or the Minister. The intent of this clause is
to give a level of protection to secret and sacred information.
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 30 of the Bill requires a person who puts an approved cultural
heritage management plan into effect to advise the chief executive about all
Torres Strait Islander cultural heritage revealed because of activity carried
out under the plan. The intent of this clause is to enable Torres Strait
Islander cultural heritage to be identified for future planning purposes.
Clause 31 allows a person carrying out an activity, other than an activity
under an approved cultural heritage management plan, to advise the chief
executive about Torres Strait Islander cultural heritage revealed because of
the activity. The intent of this clause is to enable Torres Strait Islander
cultural heritage to be identified for future planning purposes.
Clause 32 allows the Minister to give a stop order for an activity in
certain circumstances. The stop order continues in force for no more than
30 days. The Minister may give one further stop order for no more than 30
days. It is an offence to contravene a stop order given under this clause.
The intent of this clause is to enable the Minister to take appropriate steps
to protect cultural heritage from unlawful harm.
Clause 33 allows the Minister to acquire Torres Strait Islander cultural
heritage, erect structures and do other things for the purpose of
preservation.
PART 4--TORRES STRAIT ISLANDER PARTIES AND
TORRES STRAIT ISLANDER CULTURAL HERITAGE
BODIES
Clause 34 defines the term "native title party" for an area as being the
registered native title claimants, or a person who was a registered native
title claimant for an area where their claim has failed and there is no other
registered native title party for the area, or where the registered native title
claimant has surrendered their native title or their native title has been
compulsorily or otherwise extinguished; or the registered native title
holder for an area, or a person who was a registered native title holder for
an area where their native title has been surrendered, compulsorily acquired
or otherwise extinguished. This clause takes advantage of the native title
claims process established under the Commonwealth Native Title Act 1993
and recognises that Torres Strait Islander people who are the traditional
owners of an area, are the appropriate people to be involved in the
assessment and management of their cultural heritage whether or not their
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Torres Strait Islander Cultural Heritage Bill 2003
native title continues to exist. The intent of this clause is to provide
certainty to all persons in the identification of the appropriate Torres Strait
Islander people to be involved in the assessment and management of
cultural heritage.
Clause 35 defines the term "Torres Strait Islander party" for an area as
being the registered native title claimant or registered native title holder for
the whole area of their claim regardless of the extent to which native title
was found to exist in relation to the area unless someone else has been
registered over an area where their native title has been determined not to
exist. This clause also defines the term "Torres Strait Islander party" where
there is no registered native title party.
Clause 36 allows the Minister to register a corporation as a Torres Strait
Islander cultural heritage body for an area. The Minister must be satisfied
that the corporation is an appropriate body, has the capacity to represent
Torres Strait Islander parties for the area and either that the native title
parties agree to the application or where there are no native title parties that
there is substantial agreement amongst the Torres Strait Islander parties for
the area that the corporation should be registered. The clause also allows
the Minister to cancel the registration if the Minister is satisfied the
corporation is no longer the appropriate body to identify Torres Strait
Islander parties for the area. Torres Strait Islander parties for an area will
continue to be notified under the legislation despite the cancellation.
Clause 37 gives the function of a Torres Strait Islander cultural heritage
body for an area as that of identifying Torres Strait Islander parties for the
area for the benefit of a person who needs to know under the Act. The
Minister may give a Torres Strait Islander cultural heritage body financial
or other help the body needs to carry out its function.
PART 5--COLLECTION AND MANAGEMENT OF
ABORIGINAL CULTURAL HERITAGE INFORMATION
Clause 38 requires the chief executive to establish and keep aTorres
Strait Islander Cultural Heritage Database.
Clause 39 sets out the purpose of the database as a research and planning
tool for Torres Strait Islander parties, researchers and others in their
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Torres Strait Islander Cultural Heritage Bill 2003
consideration of the Torres Strait Islander cultural heritage values of
particular areas.
Clause 40 allows the chief executive to place information on the
database to the extent the chief executive considers appropriate.
Information may be added to the database without the necessity of
undertaking a formal cultural heritage study.
Clause 41 allows the chief executive to remove information from the
database where the chief executive is satisfied the information has been
recorded in error.
Clause 42 prevents access to the database generally. The intent of this
clause is that information may be provided from the database on an "as
needs basis" only as set out in clauses 43 to 45 to ensure the sensitivity and
integrity of the information is respected.
Clause 43 allows access to the database for Torres Strait Islander parties.
Clause 44 allows access to the database for land users or their nominee.
Clause 45 allows access to the database for researchers.
Clause 46 requires the chief executive to establish and keep a Torres
Strait Islander Cultural Heritage Register.
Clause 47 sets out the purpose of the register as a research and planning
tool for people in their consideration of the Torres Strait Islander cultural
heritage values of particular areas.
Clause 48 sets out what the chief executive or Minister must record in
the register if registering a cultural heritage study conducted under part 6.
Clause 49 sets out what the chief executive must record in the register in
relation to cultural heritage management plans under the Act.
Clause 50 allows the Minister to keep the register up to date.
Clause 51 allows access to the register generally.
PART 6--CULTURAL HERITAGE STUDIES
Clause 52 describes the layout of part 6.
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 53 allows any person to sponsor a cultural heritage study
however Torres Strait Islander parties are generally responsible for
assessing the Torres Strait Islander cultural heritage significance of areas
and objects covered by a study.
Clause 54 allows the Minister to gazette guidelines to help people
choose suitable study methodologies for undertaking a cultural heritage
study.
Clause 55 provides that a reference to part of a cultural heritage study
area may be taken as a reference to the whole of the cultural heritage study
area.
Clause 56 requires the sponsor of a cultural heritage study to give a
written notice to certain people, including owners and occupiers within the
study area.
Clause 57 sets out what is required in the written notice required under
clause 55.
Clause 58 sets out additional requirements for the written notice where
the notice is given to a Torres Strait Islander cultural heritage body.
Clause 59 sets out additional requirements for the written notice where
the notice is given to a Torres Strait Islander party.
Clause 60 sets out additional requirements for the written notice where
the notice is given to a native title representative body.
Clause 61 sets out the procedure for giving a public notice where there is
no Torres Strait Islander cultural heritage body or Torres Strait Islander
party that is a registered native title claimant or registered native title body
corporate.
Clause 62 details the obligation of the Torres Strait Islander cultural
heritage body in responding to a written notice and the responsibility of the
sponsor in relation to any response.
Clause 63 details the obligation of the Torres Strait Islander party in
responding to a written notice and the responsibility of the sponsor in
relation to any response.
Clause 64 details the obligation of the Torres Strait Islander party in
responding to a public notice and the responsibility of the sponsor in
relation to any response.
Clause 65 provides that the sponsor of a study is not required to endorse
a Torres Strait Islander party who has not responded to the notice within
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the time required. The clause also allows the sponsor to endorse a party
even though the sponsor is not required to.
Clause 66 sets out the role of the endorsed party for the cultural heritage
study. This role may be performed by a nominee.
Clause 67 sets out the role of the sponsor for the cultural heritage study.
Clause 68 allows the sponsor to engage appropriate persons as cultural
heritage assessors for the study.
Clause 69 sets out the role of the cultural heritage assessor in the cultural
heritage study.
Clause 70 requires the sponsor and each endorsed party for a cultural
heritage study to take reasonable steps to consult with each other about the
study. The clause sets out subject areas that must be consulted about if one
of the parties asks for the consultation. The clause also requires the
sponsor to consult with the owner or occupier of land about obtaining
access if the access is required for carrying out the study.
Clause 71 allows the chief executive to record the findings of the study
in the register.
Clause 72 gives the chief executive guidance when deciding whether to
record the findings of the study.
Clause 73 sets out what the chief executive must be satisfied about
before recording a study in the register.
Clause 74 requires the chief executive to give a written notice of the
decision to record or refusal to record the findings of the cultural heritage
study in the register. The chief executive must give the reasons for refusing
to record the findings together with the written notice of the decision.
Clause 75 sets out definitions for division 5.
Clause 76 allows a person to object to the Land and Resources Tribunal
about the chief executive's decision to record or refusal to record the
findings of the cultural heritage study.
Clause 77 sets out how the Land and Resources Tribunal must be
constituted for the hearing. The clause states that all parties to the
objection have the right to be heard at the hearing.
Clause 78 sets out what the Land and Resources Tribunal must
recommend to the Minister after hearing an objection.
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 79 requires the Minister to have regard to the Land and
Resources Tribunal's recommendation and the matters about which the
chief executive was required to be satisfied under clause 72.
PART 7--CULTURAL HERITAGE MANAGEMENT
PLANS
Clause 80 provides that division 2 sets out when a cultural heritage
management plan is or may be required to be developed for a project.
Clause 81 describes the layout of part 7.
Clause 82 provides that anyone can initiate, or be the sponsor for, a
cultural heritage management plan.
Clause 83 allows a person to develop and gain approval of a voluntary
cultural heritage management plan. This is an important feature of the
legislation intended to encourage industry to adopt best practice in
circumstances where the legislation does not automatically require a
mandatory cultural heritage management plan. The incentive for industry
to do so is that any activity undertaken in accordance with a cultural
heritage management plan approved under the legislation satisfies the duty
of care under the legislation.
Clause 84 recognises that in some circumstances a cultural heritage
management plan may contain no particular requirements for the
management of Torres Strait Islander cultural heritage.
Clause 85 allows the Minister to gazette guidelines to help people in
choosing suitable methodologies for developing cultural heritage
management plans.
Clause 86 makes it clear that the sections that compulsorily require
cultural heritage management plans do not apply if a project is authorised
under an existing agreement or a native title agreement. A native title
agreement means an indigenous land use agreement; an agreement or
determination under part 2, division 3 subdivision P of the Commonwealth
Native Title Act 1993 or an agreement under the Native Title Mining
Provisions of the Mineral Resources Act 1989. This is designed to ensure
that the cultural heritage issues for a project will not be required to be dealt
with twice.
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Clause 87 requires a cultural heritage management plan for a project
where an Environmental Impact Statement is also required for the project.
The intent in this clause is to catch the projects that are most likely to have
an impact on Torres Strait Islander cultural heritage. This reflects existing
best practice.
Clause 88 allows the extension of the mandatory trigger for a cultural
heritage management plan to cover projects that require an environmental
assessment short of an EIS and that are prescribed under a regulation. A
project can only be prescribed under the clause if the Minister is satisfied
the project will have a significant impact on Torres Strait Islander cultural
heritage.
Clause 89 allows the chief executive to require the development of a
cultural heritage management plan under the processes in the Integrated
Planning Act 1997.
Clause 90 provides that a reference to part of a cultural heritage
management plan may be taken as a reference to the whole of the cultural
heritage management plan area.
Clause 91 requires the sponsor of a cultural heritage management plan to
give a written notice to the interested parties set out in the clause.
Clause 92 sets out the requirements for the written notice.
Clause 93 sets out additional requirements if the notice is to be given to a
Torres Strait Islander cultural heritage body.
Clause 94 sets out additional requirements if the notice is to be given to a
Torres Strait Islander party.
Clause 95 sets out additional requirements if the notice is to be given to a
representative body.
Clause 96 sets out the requirements where there is no Torres Strait
Islander cultural heritage body and no Torres Strait Islander party that is a
registered native title claimant or registered native title body corporate. In
this case the sponsor must place a public notice in a newspaper. The intent
of this clause is to ensure the appropriate Torres Strait Islander people are
identified for the cultural heritage management plan process.
Clause 97 sets out the requirements for the cultural heritage body to
respond to a written notice from the sponsor of a cultural heritage
management plan and the responsibility of the sponsor in relation to any
response.
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Clause 98 sets out the requirements for the Torres Strait Islander party to
respond to a written notice from the sponsor of a cultural heritage
management plan and the responsibility of the sponsor in relation to any
response.
Clause 99 sets out the requirements for the Torres Strait Islander party to
respond to a public notice from the sponsor of a cultural heritage
management plan and the responsibility of the sponsor in relation to any
response.
Clause 100 sets out the requirements for notifying an entity that
becomes a Torres Strait Islander party before the notice period ends and the
responsibility of the sponsor in relation to any response.
Clause101 provides that the sponsor is not required to endorse a Torres
Strait Islander party who has failed to respond within the notice period.
This clause also allows the sponsor to endorse other Torres Strait Islander
parties even though the sponsor is not required to.
Clause 102 sets out the role of an endorsed party and allows the role to
be performed by a nominee.
Clause 103 sets out the role of the sponsor for the cultural heritage
management plan.
Clause 104 requires the sponsor to consult with each endorsed party
about the development of the cultural heritage management plan. The
clause gives guidance on subjects for consultation and methods of
consulting.
Clause 105 requires the sponsor and each endorsed party to use every
reasonable effort to reach agreement about the cultural heritage
management plan. The clause also sets out matters the plan may contain.
Clause 106 allows a party to ask the Land and Resources Tribunal to
provide mediation of a dispute between parties that is substantially
delaying the plan.
Clause 107 allows a cultural heritage management plan to be submitted
to the chief executive for approval by the sponsor where all the consultation
parties are agreed. The chief executive must approve the cultural heritage
management plan where all the parties have agreed.
Clause 108 sets out what the chief executive must be satisfied about
before approving a cultural heritage management plan where no Torres
Strait Islander party has become endorsed for the plan by responding to the
sponsor's written notice.
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Clause 109 requires the chief executive to give written notice of the
decision about the cultural heritage management plan where no Torres
Strait Islander party has become endorsed for the plan by responding to the
sponsor's written notice.
Clause 110 sets out definitions for the division.
Clause 111 allows the sponsor to object to the Land and Resources
Tribunal if no Torres Strait Islander parties responded to the sponsors
notice of intention to develop the cultural heritage management plan and
the chief executive has refused to approve the cultural heritage
management plan. The sponsor must object within 30 days after receiving
notice from the chief executive.
Clause 112 allows the sponsor to refer a plan to the Land and Resources
Tribunal where, following meditation, the mediator believes that resolution
of the dispute is unlikely and has authorised the sponsor to refer the
cultural heritage management plan to the Land and Resources Tribunal for
consideration.
Clause 113 allows the sponsor to refer a plan to the Land and Resources
Tribunal asking for approval where the consultation parties are not in
agreement. The referral must happen within a reasonable time after the end
of the consultation period for the plan.
Clause 114 sets out the administrative steps involved in an objection or
referral.
Clause 115 requires the sponsor to file a document with the Land and
Resources Tribunal setting out the nature and extent of the consultation and
why the plan is sufficient in its proposed protection and management of
Torres Strait Islander cultural heritage. The Land and Resources Tribunal
must give the other parties a copy and invite submissions from them.
Clause 116 gives the Land and Resources Tribunal the power to hold a
hearing of an objection or referral. All parties to the objection or referral
have the right to be heard.
Clause 117 requires the Land and Resources Tribunal to make a
recommendation to the Minister about the cultural heritage management
plan.
Clause 118 sets out what the Land and Resources Tribunal must be
satisfied about in making a recommendation to the Minister, in particular
about how the project is to managed to avoid or, to the extent to which
damage cannot reasonably be avoided, minimise harm to Torres Strait
Islander cultural heritage.
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 119 requires the Land and Resources Tribunal to take all
reasonable and practicable steps to make a recommendation to the Minister
within 4 months or provide the Minister with written notice as to why a
recommendation has not been made within that time together with an
estimate of when one is likely to be made.
Clause 120 sets out the action the Minister may take upon receiving a
recommendation from the Land and Resources Tribunal.
PART 8--INVESTIGATION AND ENFORCEMENT
Clause 121 allows the appointment of public service employees as
authorised officers.
Clause 122 allows the setting of appointment conditions and powers of
authorised officers.
Clause 123 requires each authorised officer to be issued an identity card.
Clause 124 requires the authorised officer to produce and display the
identity card when exercising their powers.
Clause 125 sets out when an authorised officer ceases to hold office.
Clause 126 allows an authorised officer to resign from office.
Clause 127 requires a person who ceases to be an authorised officer to
return the identity card.
Clause 128 gives an authorised officer power to enter places with
consent or, where consent has not been given, with a warrant.
Clause 129 sets out the procedures to be followed where an authorised
officer enters a place with consent.
Clause 130 allows the authorised officer to apply for a warrant from a
magistrate.
Clause 131 sets out the ground for issuing a warrant and the
requirements of the warrant.
Clause 132 makes provision for a special warrant where necessary due
to urgent circumstances or other special circumstances.
Clause 133 sets out procedures to be followed in executing a warrant.
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Torres Strait Islander Cultural Heritage Bill 2003
Clause 134 sets out the powers of an authorised officer upon entry under
a warrant.
Clause 135 makes it an offence not to comply with a request under
clause 134(3)(g).
Clause 136 makes it an offence not to comply with a request under
clause 134(3)(h).
Clause 137 gives an authorised officer power to seize evidence from a
public place.
Clause 138 gives an authorised officer power to seize an item that may
be evidence from another place when acting with consent of the occupier or
under a warrant.
Clause 139 gives an authorised officer the power to secure something
seized.
Clause 140 makes it an offence to tamper with something seized by an
authorised officer.
Clause 141 allows an authorised officer to require a person in control of
a thing to take action in order to enable a thing to be seized, and provides
an offence for failure to comply with the requirement.
Clause 142 provides for the issue of a receipt for anything seized by an
authorised officer.
Clause 143 requires an authorised officer to return seized things which
have not been forfeited within 6 months of seizure, or from the end of any
proceeding for an offence or appeal from the proceeding, or when the thing
is no longer required as evidence.
Clause 144 allows an owner to obtain access to a seized thing that has
not been forfeited or returned.
Clause 145 allows an authorised officer to require a person to state their
name and address in certain circumstances.
Clause 146 provides an offence for the failure by a person to provide an
authorised officer with the person's name and address.
Clause 147 requires an authorised officer to notify an owner whose
property has been damaged by the authorised officer in the exercise of the
authorised officer's powers.
Clause 148 allows a person to claim compensation from the State for
damage caused, or cost incurred, in the exercise or purported exercise of an
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authorised officer's powers and it outlines the manner and extent to which
compensation may be sought.
Clause 149 makes it an offence to knowingly give false or misleading
information to an authorised officer.
Clause 150 makes it an offence to knowingly give a false or misleading
document to an authorised officer.
Clause 151 makes it an offence to obstruct an authorised officer in the
exercise of a power.
PART 9--MISCELLANEOUS PROVISIONS
Clause 152 allows the Minister to delegate the Minister's powers to
another Minister or an appropriately qualified public service officer. This
clause also allows the chief executive to delegate the chief executive's
powers to an appropriately qualified public service officer.
Clause 153 authorises a person who is already authorised to enter land to
perform an activity under another Act to also enter the land to perform
cultural heritage work. In any other circumstances, if no other authority
exists under another Act to enter the land, the consent of the owner or
occupier is required.
Clause 154 allows the Minister to establish advisory committees.
Clause 155 allows the Minister to acquire land by purchase or
compulsory acquisition where the Minister is satisfied that it is necessary to
manage, preserve or protect Torres Strait Islander cultural heritage.
Clause 156 sets out the requirements for proceedings for an offence
against the proposed Act which may be taken summarily or on indictment.
Clause 157 requires the Minister to review the proposed Act within 5
years of commencement. The intent in this clause is to ensure the proposed
Act is examined in detail during its implementation.
Clause 158 allows the chief executive to approve forms for use under the
Act.
Clause 159 allows the Governor in Council to make regulations under
the proposed Act.
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Torres Strait Islander Cultural Heritage Bill 2003
PART 10--TRANSITIONAL PROVISIONS
Clause 160 is a transitional clause confirming that the proposed Act is
not generally intended to interfere with ownership of Torres Strait Islander
cultural heritage as it existed before the commencement of the proposed
Act.
Clause 161 is a transitional clause that requires the State to place all
information about Torres Strait Islander cultural heritage accumulated by
the State on the database.
Clause 162 is a transitional clause that allows a person to carry out
activities in accordance with existing agreements. In these circumstances,
a person will be taken to comply with their duty of care. The intent of this
clause is to ensure people can operate with confidence on the basis of
existing agreements.
Clause 163 is a transitional clause that continues in force permits issued
under section 28 of the Cultural Record (Landscapes Queensland and
Queensland Estate) Act 1987. The intent of this clause is to allow people
operating under existing permits to continue to operate under those
permits.
Clause 164 is a transitional clause that allows the holder of an authority
obtained before the commencement of the proposed Act to apply to the
Minister to have transitional measures approved to ensure the duty of care
is met under the proposed Act. This is important to enable compliance
where Torres Strait Islander cultural heritage has not previously been
addressed.
Clause 165 is a transitional clause ensuring where cultural heritage
arrangements were put in place in order to obtain an authority before the
commencement of the proposed Act that a person acting in accordance
with those arrangements does not commit an offence under the Act.
Clause 166 is a transitional clause to ensure that activities undertaken in
accordance with arrangements put in place before the commencement of
the proposed Act to address cultural heritage as part of an Environmental
Impact Statement approval obtained after the commencement of the
proposed Act do not offend against the Act.
167 is a transitional clause allowing a reference to the Cultural Record
(Landscapes Queensland and Queensland Estate) Act 1987 to be taken as a
reference to the proposed Act. This is standard drafting practice when an
Act is replaced with new legislation.
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SCHEDULE--DICTIONARY
Schedule 2 contains the dictionary that defines words and phrases used
in the Bill.
© State of Queensland 2003