Commonwealth Numbered Acts

ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION AMENDMENT ACT 1987 No. 39 of 1987 - SECT 7

7. After section 21 of the Principal Act the following Part is inserted:
               "PART IIA - VICTORIAN ABORIGINAL CULTURAL HERITAGE


"Division 1 - Preliminary Interpretation

"21A. (1) In this Part:
'Aboriginal cultural heritage agreement' means an agreement made in accordance
with section 21K;
'Aboriginal cultural property' means Aboriginal places, Aboriginal objects and
Aboriginal folklore;
'Aboriginal folklore' means traditions or oral histories that are or have been
part of, or connected with, the cultural life of Aboriginals (including songs,
rituals, ceremonies, dances, art, customs and spiritual beliefs) and that are
of particular significance to Aboriginals in accordance with Aboriginal
tradition;
'Aboriginal object' means an object (including Aboriginal remains) that is in
Victoria and is of particular significance to Aboriginals in accordance with
Aboriginal tradition;
'Aboriginal place' means an area in Victoria that is of particular
significance to Aboriginals in accordance with Aboriginal tradition;
'community area', in relation to a local Aborigial community, means the area
in Victoria declared by the regulations to be the area of that community for
the purposes of this Part;
'local Aboriginal community' means an organisation that is specified in the
Schedule;
'magistrate' means a magistrate of the State of Victoria;
'police officer' means:

   (a)  a member or special member of the Australian Federal Police; or

   (b)  a member of the Police Force of the State of Victoria;
'State Minister' means a Minister of the Crown of the State of Victoria.

"(2) The regulations may amend the Schedule by adding, omitting or varying the
name of an organisation that is incorporated in, or carries on business in,
Victoria. Delegation

"21B. (1) The Minister may, either generally or as otherwise provided by the
instrument of delegation, by writing signed by the Minister, delegate to a
State Minister or an officer of the Department all or any powers that are
conferred on the Minister by or under this Part.

"(2) A State Minister to whom a power has been delegated under subsection (1)
may, by writing signed by that Minister, authorise another person to exercise
the power so delegated.

"(3) An authority under subsection (2) may be given to:

   (a)  a specified person; or

   (b)  the person for the time being occupying or performing the duties of a
        position in the public service of the State of Victoria, being a
        position specified in the instrument by which the authority is given.

"(4) Any act or thing done in the exercise of a power by a person to whom that
power has been delegated by the Minister under subsection (1) or by a person
authorised by a delegate of the Minister under subsection (2) to exercise that
power has the same force and effect as if it had been done by the Minister.

"(5) Where the exercise of a power by the Minister is dependent upon the
opinion, belief or state of mind of the Minister in relation to a matter and
that power has been delegated under subsection (1), that power may be
performed or exercised by the delegate or by a person authorised by the
delegate under subsection (2) upon the opinion, belief or state of mind of the
delegate or of the authorised person, as the case may be, in relation to that
matter.

"(6) A delegation under subsection (1) does not prevent the exercise of a
power by the Minister.

"(7) The giving of an authority under subsection (2) does not prevent the
exercise of a power by the person by whom the authority was given.

"(8) Where a person purports to exercise a power conferred or expressed to be
conferred on the Minister by this Act, it shall be presumed, unless the
contrary is established, that the person is duly authorised by a delegation
under subsection (1), or by an authority under subsection (2) given pursuant
to such a delegation, to exercise the power.

"Division 2 - Preservation of Victorian Aboriginal Cultural Property Emergency
declaration of preservation

"21C. (1) An emergency declaration in the prescribed form may be made in
relation to an Aboriginal place or Aboriginal object:

   (a)  by:

        (i)    an inspector appointed under section 21R; or

        (ii)   the Minister; whether after an application is made to him or
               her by a local Aboriginal community or any person or on his or
               her own motion; or

   (b)  by a magistrate on an application by a local Aboriginal community; if
        the inspector, Minister or magistrate has reasonable grounds for
        believing that the place or object is under threat of injury or
        desecration of such a nature that it could not properly be protected
        unless an emergency declaration is made.

"(2) An emergency declaration ceases to be in force at the end of 30 days
after it is made or such longer period, not exceeding 44 days, after it is
made as the Minister fixes in any case unless it is sooner revoked or replaced
by a temporary declaration under section 21D or a declaration under section
21E.

"(3) An emergency declaration may be varied or revoked:

   (a)  if made by an inspector - by the inspector;

   (b)  if made by the Minister - by the Minister; or

   (c)  if made by a magistrate - by the magistrate on the application of the
        local Aboriginal community.

"(4) If an emergency declaration is made, varied or revoked by an inspector or
the Minister, the inspector or Minister shall, without delay, notify:

   (a)  the local Aboriginal community (if any) of the area where the
        Aboriginal place or Aboriginal object is found; and

   (b)  in the case of an emergency declaration made by an inspector - the
        Minister; and shall take all reasonable steps to notify any person who
        is likely to be affected.

"(5) If an emergency declaration is made by a magistrate on the application of
a local Aboriginal community, the community shall, without delay, take all
reasonable steps to notify any person who is likely to be affected. Temporary
declaration of preservation

"21D. (1) If a local Aboriginal community decides, whether after an
application is made to it or on its own motion, that:

   (a)  a place or object in the community area is an Aboriginal place or
        Aboriginal object; and

   (b)  that place or object is under threat of injury or desecration; the
        community may advise the Minister that it considers a temporary
        declaration of preservation should be made.

"(2) On receiving advice under subsection (1) or determining on his or her own
motion that a temporary declaration of preservation should be made, the
Minister:

   (a)  shall, within 14 days, cause notice of the advice or determination to
        be given to any person who is likely to be affected by the making of a
        declaration; and

   (b)  shall give any such person an opportunity to be heard.

"(3) After notice is given under subsection (2) and any objections are heard
and the Minister has consulted with any State Minister whose responsibility
may be affected by the making of a declaration, the Minister shall:

   (a)  if the Minister considers that, in all the circumstances of the case,
        it is reasonable and appropriate that a temporary declaration be made
        for the preservation of the place or object - make the declaration in
        writing, and, in the declaration, specify the terms of the declaration
        and the manner of preservation to be adopted in relation to the place
        or object, including prohibition of access to, or interference with,
        the place or object; or

   (b)  refuse to make the declaration.

"(4) The Minister may, at any time, on the application of the local Aboriginal
community or on his or her own motion, vary or revoke a temporary declaration
or any matters specified in it.

"(5) The Minister shall cause appropriate notice to be given of the making,
variation or revocation of a temporary declaration.

"(6) A person affected or likely to be affected by the making, variation or
revocation of a temporary declaration of preservation may request the Minister
to appoint an arbitrator to review the Minister's decision.

"(7) If the Minister refuses to make, or revokes, a temporary declaration of
preservation or makes or varies a declaration, the local Aboriginal community
may request the Minister to appoint an arbitrator to review the Minister's
decision.

"(8) The Minister shall, after receiving a request under subsection (6) or
(7), appoint an arbitrator, being a person whom the Minister considers to be
in a position to deal with the matter impartially.

"(9) Subject to section 21F, a temporary declaration of preservation ceases to
be in force at the end of 60 days after it is made, or such longer period, not
exceeding 120 days, after it is made as the Minister, on the advice of the
local Aboriginal community, fixes unless it is sooner revoked or replaced by a
declaration under section 21E. Declaration of preservation

"21E. (1) If a local Aboriginal community decides, whether after an
application is made to it or on its own motion, that:

   (a)  a place or object in the community area is an Aboriginal place or
        Aboriginal object; and

   (b)  it is appropriate, having regard to the importance of maintaining the
        relationship between Aboriginals and that place or object, that a
        declaration of preservation should be made in relation to that place
        or object; the community may advise the Minister that it considers a
        declaration of preservation should be made.

"(2) On receiving advice under subsection (1) or determining on his or her own
motion that a declaration of preservation should be made, the Minister:

   (a)  shall within 14 days cause notice of the advice or determination to be
        given to any person who is likely to be affected by the making of a
        declaration; and

   (b)  shall give any such person an opportunity to be heard.

"(3) After notice is given under subsection (2) and any objections are heard
and the Minister has consulted with any State Minister whose responsibility
may be affected by the making of a declaration, the Minister shall:

   (a)  if the Minister considers that, in all the circumstances of the case,
        it is reasonable and appropriate that a declaration be made for the
        preservation of the place or object - make the declaration and, in the
        declaration, specify the terms of the declaration and the manner of
        preservation to be adopted in relation to the place or object,
        including prohibition of access to, or interference with, the place or
        object; or

   (b)  refuse to make the declaration.

"(4) The Minister may, at any time, on the application of the local Aboriginal
community or on his or her own motion, vary or revoke a declaration or any
matters specified in it.

"(5) A person likely to be affected by the making, variation or revocation of
a declaration of preservation may request the Minister to appoint an
arbitrator to review the Minister's decision.

"(6) If the Minister refuses to make, or revokes, a declaration of
preservation or makes or varies a declaration, the local Aboriginal community
may request the Minister to appoint an arbitrator to review the Minister's
decision.

"(7) The Minister shall, after receiving a request under subsection (5) or
(6), appoint an arbitrator, being a person whom the Minister considers to be
in a position to deal with the matter impartially.

"(8) The making, variation or revocation of a declaration under this section:

   (a)  shall be done by notice published in the Gazette; and

   (b)  comes into operation on the date of publication or such later date as
        is specified in the notice. Arbitration

"21F. (1) An arbitrator appointed under section 21D or 21E to review a
decision of the Minister shall make a decision:

   (a)  confirming the decision of the Minister;

   (b)  varying the decision of the Minister; or

   (c)  setting aside the decision of the Minister and making a decision
        (being a decision that the Minister could have made under section 21D
        or 21E, as the case requires) in substitution for the decision of the
        Minister.

"(2) Subject to subsection (3), a decision of the Minister as varied by an
arbitrator, or a decision made by an arbitrator in substitution for a decision
of the Minister, shall, except for the purposes of subsection 21D (7) or 21E
(6), be deemed to be a decision of the Minister and has effect, unless the
arbitrator otherwise determines, on and from the day on which the decision of
the Minister had effect.

"(3) Where the decision of an arbitrator results in the making of a
declaration under section 21D or 21E, or the variation of a declaration made
by the Minister under one of those sections, the declaration or variation, as
the case may be, has effect on and from the day on which the decision of the
arbitrator is made. Notices

"21G. (1) A local Aboriginal community may cause notices to be placed on or
near an Aboriginal place or Aboriginal object in the community area that is
the subject of a declaration indicating that the place or object is subject to
a declaration of preservation.

"(2) A person authorised in writing by the relevant Aboriginal community may
at all reasonable times enter upon any land for the purpose of placing a
notice under subsection (1).

"(3) A person shall not destroy, damage, remove or interfere with a notice
placed under this section. Penalty:

   (a)  if the person is a natural person - $500; or

   (b)  if the person is a body corporate - $2,500. Offence to contravene
        declaration

"21H. (1) A person who contravenes the terms of a declaration under this Part
relating to an Aboriginal place is guilty of an offence punishable, on
conviction:

   (a)  if the person is a natural person - by a fine not exceeding $10,000 or
        imprisonment for a period not exceeding 5 years, or both; or

   (b)  if the person is a body corporate - by a fine not exceeding $50,000.

"(2) A person who contravenes the terms of a declaration under this Part
relating to an Aboriginal object is guilty of an offence punishable, on
conviction:

   (a)  if the person is a natural person - by a fine not exceeding $5,000, or
        imprisonment for a period not exceeding 2 years, or both; or

   (b)  if the person is a body corporate - by a fine not exceeding $25,000.
        Obligation to protect land

"21J. The making of a declaration relating to an Aboriginal place does not
affect any obligation under any Act or law relating to the protection or
conservation of land unless the obligation is inconsistent with the
declaration. Aboriginal Cultural Heritage Agreements

"21K. (1) A local Aboriginal community may enter into an Aboriginal Cultural
Heritage Agreement with a person who owns or possesses any Aboriginal cultural
property in Victoria.

"(2) An agreement may cover the preservation, maintenance, exhibition, sale or
use of the property and the rights, needs and wishes of the person and of the
Aboriginal and general communities.

"(3) Subsection (1) does not apply to any Aboriginal cultural property in the
possession of an Aboriginal if the property has been handed down from
generation to generation to that person unless that person expressly agrees
that the property should be the subject of an agreement under this section.

"(4) If an agreement under this section relating to land contains a provision
requiring its registration under this section, the local Aboriginal community
shall without delay:

   (a)  if the land is under the operation of the Transfer of Land Act 1958 of
        Victoria - lodge with the Registrar of Titles under that Act a notice
        of the agreement in the prescribed form; or

   (b)  in the case of other land - lodge with the Registrar-General under the
        Property Law Act 1958 of Victoria a notice of the agreement in the
        prescribed form.

"(5) If the Registrar of Titles receives a notice of an agreement, the
Registrar may make such entries in the Register Book as the Registrar thinks
appropriate for the purposes of this section. Compulsory acquisition

"21L. (1) The Minister may, in accordance with the regulations, compulsorily
acquire any Aboriginal cultural property if the Minister is satisfied, whether
on the advice of a local Aboriginal community or otherwise, that:

   (a)  the property is of such religious, historical or cultural significance
        that it is irreplaceable; and

   (b)  no other arrangements can be made to ensure its proper continuing
        preservation and maintenance.

"(2) Property acquired under this section is, upon acquisition, vested in the
local Aboriginal community of the area where the property is found to be held
on trust for it or, if there is no such community, in the Minister on trust
for Aboriginals in Victoria. Compensation for acquisition of property

"21M. (1) Where, but for this section, the operation of this Part would result
in the acquisition of property from a person otherwise than on just terms,
there is payable to the person by the Commonwealth such reasonable amount of
compensation as is agreed upon between the person and the Commonwealth or,
failing agreement, as is determined by the Federal Court.

"(2) In subsection (1), 'acquisition of property' and 'just terms' have the
same respective meanings as in paragraph 51 (xxxi) of the Constitution.
Compensation may be paid in certain circumstances

"21N. (1) The Minister may, from moneys appropriated by the Parliament for the
purpose, pay compensation to a person who is or is likely to be affected by a
declaration of preservation under section 21E.

"(2) The amount of compensation payable is such amount as is agreed upon
between the Minister and the person or, failing agreement, as is determined by
an arbitrator appointed by the Minister.

"Division 3 - Discovery and Disposal of Aboriginal Remains Discovery of
Aboriginal remains

"21P. (1) A person who, in Victoria, discovers anything that he or she has
reasonable grounds to suspect to be Aboriginal remains shall report the
discovery to the Minister, giving particulars of the remains and of their
location. Penalty: $500.

"(2) Where the Minister receives a report made under subsection (1) and is
satisfied that the report relates to Aboriginal remains, the Minister shall
take reasonable steps to consult with any local Aboriginal community that he
or she considers may have an interest in the remains, with a view to
determining the proper action to be taken in relation to the remains. Disposal
of Aboriginal remains

"21Q. (1) Where Aboriginal remains discovered in Victoria are delivered to the
Minister, he or she shall:

   (a)  return the remains to a local Aboriginal community entitled to, and
        willing to accept, possession, custody or control of the remains in
        accordance with Aboriginal tradition;

   (b)  otherwise deal with the remains in accordance with any reasonable
        directions of a local Aboriginal community referred to in paragraph
        (a); or

   (c)  if there is or are no such community or communities - transfer the
        remains to a prescribed authority for safekeeping.

"(2) Nothing in this section shall be taken to derogate from the right of any
local Aboriginal community, Aboriginal or Aboriginals accepting possession,
custody or control of any Aboriginal remains pursuant to this section to deal
with the remains in accordance with Aboriginal tradition.
                          "Division 4 - Miscellaneous
Inspectors

"21R. (1) The Minister may, in writing, appoint any person after consultation
with a local Aboriginal community to be an inspector for the purposes of this
Part if the Minister is satisfied that the person has knowledge and expertise
in the identification and preservation of Aboriginal cultural property and is
able to undertake the duties of an inspector under this Part.

"(2) The Minister shall cause to be issued to each inspector an identity card
in the form prescribed, containing a photograph of the inspector.

"(3) An inspector who notifies a person of a declaration made by the inspector
under section 21C shall:

   (a)  if it is reasonably practicable to do so - produce his or her identity
        card for inspection by that person; or

   (b)  in any other case - give that person such particulars of his or her
        identity card as are prescribed.

"(4) A person who ceases to be an inspector shall forthwith return his or her
identity card to the Minister. Penalty: $100. Power to enter, search etc.

"21S. (1) If a Magistrate is satisfied, on information on oath by a police
officer, that there are reasonable grounds for suspecting that any Aboriginal
objects on or in any land, premises or vehicle are under threat of injury or
desecration, the Magistrate may issue a warrant authorising any police officer
together with the inspector named in the warrant, by such force as is
necessary and reasonable:

   (a)  to enter the land, premises or vehicle;

   (b)  to search the land, premises or vehicle;

   (c)  to take possession of, or secure against desecration, any Aboriginal
        objects that appear to the inspector to be under threat of injury or
        desecration; and

   (d)  to deliver any objects possession of which is so taken into the
        possession of a person authorised by the Minister to receive them.

"(2) A police officer, together with an inspector, may:

   (a)  enter upon land, or upon or into premises;

   (b)  search the land or premises for Aboriginal objects; and

   (c)  seize or secure against desecration any property found in the course
        of the search that the inspector believes, on reasonable grounds, to
        be an Aboriginal object; but only if acting:

   (d)  with the consent of the occupier of the land or premises; or

   (e)  under a warrant issued under this section.

"(3) There shall be stated in a warrant issued under this section:

   (a)  a statement of the purpose for which the warrant is issued;

   (b)  a description of the kind of property authorised to be seized; and

   (c)  a date (not being later than 7 days after the issue of the warrant)
        upon which the warrant ceases to have effect.

"(4) It shall also be stated in a warrant issued under this section whether
entry is authorised to be made at any time of the day or night or during
specified hours of the day or night.

"(5) If possession is taken of an object under this section:

   (a)  the inspector shall forthwith inform the local Aboriginal community
        (if any) of the area where the object is found; and

   (b)  the object shall be returned to the owner within 60 days after the
        possession was taken (or such longer period, not exceeding 120 days,
        after possession was taken as the Minister authorises) unless it is
        compulsorily acquired under section 21M or otherwise becomes the
        property of the local Aboriginal community.

"(6) If:

   (a)  an object is taken into possession under this section;

   (b)  the object is required to be returned to the owner under paragraph (5)
        (b); and

   (c)  the whereabouts of the owner cannot be ascertained after careful
        inquiry; the object is vested in the Minister on trust for Aboriginals
        in Victoria.

"(7) The powers conferred by this section are in addition to any other powers
conferred by law. Honorary keepers or wardens

"21T. (1) A local Aboriginal community may, in writing, appoint honorary
keepers or wardens for that community.

"(2) The function of an honorary keeper or warden is to record and maintain
Aboriginal cultural property, either generally or as specified by the local
Aboriginal community from time to time.

"(3) If an honorary keeper or warden is an Aboriginal who has the
responsibility of being custodian for any Aboriginal cultural property, the
local Aboriginal community shall not require the honorary keeper or warden to
carry out any function that is inconsistent with the duties of the keeper or
warden as the custodian. Defacing property

"21U. (1) A person shall not wilfully deface, damage, otherwise interfere with
or do any act likely to endanger an Aboriginal object or Aboriginal place.
Penalty:

   (a)  if the person is a natural person - $10,000 or imprisonment for 5
        years, or both; or

   (b)  if the person is a body corporate - $50,000.

"(2) Subsection (1) does not prevent an Aboriginal from entering on or
interfering with an Aboriginal place or Aboriginal object in accordance with
Aboriginal tradition.

"(3) A person may apply to a local Aboriginal community for consent for the
excavation of any Aboriginal place or Aboriginal object in a community area of
that community or for the carrying out of scientific research on Aboriginal
objects in that area.

"(4) A local Aboriginal community may consent, in writing, to the doing of an
act referred to in subsection (1) or (3) in its community area and may, in the
consent, specify terms and conditions subject to which the consent is given.

"(5) If:

   (a)  a local Aboriginal community does not, within 30 days after receiving
        an application for consent under subsection (4), either grant consent
        or refuse consent; or

   (b)  an application is made to the Minister for consent to the doing of an
        act referred to in subsection (1) in an area in relation to which
        there is no local Aboriginal community; the Minister may consent, in
        writing, to the doing of an act referred to in subsection (1) in the
        community area or other area, as the case may be, and may, in the
        consent, specify terms and conditions subject to which the consent is
        given.

"(6) The Minister shall not grant consent under subsection (5) unless:

   (a)  the Minister has sought a recommendation on the matter from any person
        or body that in the Minister's opinion should consider the matter; and

   (b)  the Minister has considered any recommendations made and is of the
        opinion that, in all the circumstances of the case, consent should be
        granted.

"(7) A person is not guilty of an offence if the person does an act referred
to in subsection (1) in accordance with consent given under subsection (4) or
(5). Register

"21V. (1) The Minister shall cause to be kept a register containing a summary
of particulars of declarations of preservation made under this Part.

"(2) The register shall not be open for inspection except by prescribed
persons or in prescribed circumstances. General meetings of local Aboriginal
communities

"21W. There may be convened, in accordance with the regulations, general
meetings of representatives of each local Aboriginal community and of
prescribed Aboriginal organisations in Victoria for the purpose of:

   (a)  providing advice to the Minister on issues relating to Aboriginal
        cultural property in Victoria; or

   (b)  making recommendations to the Minister on the operation of this Part,
        including recommendations for its review or amendment. Negotiation for
        return of Aboriginal remains

"21X. If a local Aboriginal community has reason to believe that any
Aboriginal remains held by a university, museum or other institution were
found or came from its community area, the local Aboriginal community may
request the Minister to negotiate with the university, museum or institution
for the return of the remains to the community. Indictable offences

"21Y. (1) Subject to subsection (2), the following offences are indictable
offences:

   (a)  an offence against section 21H or 21U; or

   (b)  an offence against:

        (i)    section 6, 7 or 7A of the Crimes Act 1914; or

        (ii)   subsection 86 (1) of that Act by virtue of paragraph (a) of
               that subsection; in relation to an offence referred to in
               paragraph (a) of this subsection.

"(2) A court of summary jurisdiction may hear and determine proceedings in
respect of an offence referred to in subsection (1) if the court is satisfied
that it is proper to do so and the defendant and the prosecutor consent.

"(3) Where, in accordance with subsection (2), a court of summary jurisdiction
convicts a person of an offence referred to in that subsection, the penalty
that the court may impose is:

   (a)  if the person is a natural person - a fine not exceeding $2,000 or
        imprisonment for a period not exceeding 12 months, or both; or

   (b)  if the person is a body corporate - a fine not exceeding $10,000.
        Evidence

"21Z. (1) In any proceedings for an offence against section 21H in relation to
a declaration under this Part, the proof of the declaration is prima facie
evidence that the place or object concerned is an Aboriginal place or
Aboriginal object, as the case may be.

"(2) For the purposes of subsection (1), a declaration made under section 21E
may be proved by the production of the Gazette purporting to contain it.

"(3) In proceedings for an offence against section 21H or 21U, where there is
evidence that, at the relevant time, the defendant neither knew, nor had
reasonable grounds for knowing:

   (a)  in the case of an offence against section 21H - of the existence of
        the declaration alleged to have been contravened; or

   (b)  in the case of an offence against section 21U - that the object or
        place concerned was an Aboriginal object or an Aboriginal place, as
        the case may be; the defendant shall not be committed for trial or
        convicted unless the prosecution proves that, at the time, the
        defendant knew, or ought reasonably to have known, of that fact. Alcoa
        smelter site exempted

"21ZA. This Part does not apply to any site, land, act or activity to which
section 13 of the Alcoa (Portland Aluminium Smelter) Act 1980 of Victoria
applies.".