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Queensland
ABORIGINAL CULTURAL
HERITAGE BILL 2003
Queensland
ABORIGINAL 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 "Aboriginal cultural heritage" . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 Meaning of "significant Aboriginal area" . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10 Meaning of "significant Aboriginal object" . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 Extension of evidence of occupation to surroundings. . . . . . . . . . . . . . . . . . 13
12 Identifying significant Aboriginal areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13 Interpretation to support existing rights and interests . . . . . . . . . . . . . . . . . . 14
PART 2--OWNERSHIP, CUSTODIANSHIP AND POSSESSION OF
ABORIGINAL CULTURAL HERITAGE
Division 1--Preliminary
14 Object and intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--Aboriginal human remains
15 Ownership of Aboriginal human remains . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16 Aboriginal human remains in custody of State . . . . . . . . . . . . . . . . . . . . . . . 15
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Aboriginal Cultural Heritage Bill 2003
17 Possession of Aboriginal human remains . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 Knowledge of Aboriginal human remains. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 3--Secret and sacred objects
19 Ownership and custody of secret or sacred object . . . . . . . . . . . . . . . . . . . . 17
Division 4--Other Aboriginal cultural heritage
20 Ownership of Aboriginal cultural heritage . . . . . . . . . . . . . . . . . . . . . . . . . . 18
21 Continued use of surface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Division 5--Role of Queensland Museum
22 Care of Aboriginal cultural heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
PART 3--PROTECTION OF ABORIGINAL CULTURAL
HERITAGE
Division 1--Key cultural heritage protection provisions
23 Cultural heritage duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
24 Unlawful harm to Aboriginal cultural heritage . . . . . . . . . . . . . . . . . . . . . . . 21
25 Prohibited excavation, relocation and taking away . . . . . . . . . . . . . . . . . . . . 22
26 Unlawful possession of Aboriginal 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Division 3--Information about cultural heritage
29 Information protection provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
30 Putting cultural heritage management plan into effect . . . . . . . . . . . . . . . . . 25
31 Other activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Division 4--Protection of cultural heritage under action of Minister
32 Stop orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
33 Particular steps to preserve cultural heritage. . . . . . . . . . . . . . . . . . . . . . . . . 27
PART 4--NATIVE TITLE PARTIES, ABORIGINAL PARTIES AND
ABORIGINAL CULTURAL HERITAGE BODIES
34 Native title party for an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
35 Aboriginal party for an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
36 Registration as Aboriginal cultural heritage body . . . . . . . . . . . . . . . . . . . . . 30
37 Function of Aboriginal cultural heritage body . . . . . . . . . . . . . . . . . . . . . . . 31
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Aboriginal Cultural Heritage Bill 2003
PART 5--COLLECTION AND MANAGEMENT OF ABORIGINAL
CULTURAL HERITAGE INFORMATION
Division 1--Aboriginal Cultural Heritage Database
38 Establishment of database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
39 Purpose of establishing database. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
40 Placing information on database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
41 Taking information off database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
42 Availability of database to public generally . . . . . . . . . . . . . . . . . . . . . . . . . 32
43 Availability of database to Aboriginal party . . . . . . . . . . . . . . . . . . . . . . . . . 33
44 Availability of database for cultural heritage duty of care purposes . . . . . . . 33
45 Availability of database to researcher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Aboriginal Cultural Heritage Register
46 Establishment of register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
47 Purpose of establishing register. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
48 Recording information from cultural heritage study. . . . . . . . . . . . . . . . . . . 34
49 Information about cultural heritage management plans . . . . . . . . . . . . . . . . 35
50 Keeping register up-to-date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
51 Availability of register to public generally . . . . . . . . . . . . . . . . . . . . . . . . . . 36
PART 6--CULTURAL HERITAGE STUDIES
Division 1--Introduction
52 Requirements for carrying out cultural heritage study and
recording findings ....................................... 36
53 Roles and responsibilities for carrying out cultural heritage study . . . . . . . . 36
54 Cultural heritage study guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Division 2--Preparing to carry out cultural heritage study
55 Reference to part of study area may be taken to include reference to whole 37
56 Giving of written notice (proposed study). . . . . . . . . . . . . . . . . . . . . . . . . . . 37
57 Basic information requirements for written notice (proposed study) . . . . . . 38
58 Additional requirements for notice to Aboriginal cultural heritage body . . . 39
59 Additional requirements for notice to Aboriginal party . . . . . . . . . . . . . . . . 39
60 Additional requirements for notice to representative body . . . . . . . . . . . . . . 40
61 Giving of public notice (proposed study) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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Aboriginal Cultural Heritage Bill 2003
62 Aboriginal cultural heritage body response to written notice and
endorsement for study .................................... 41
63 Aboriginal party response to written notice and endorsement for study. . . . 42
64 Aboriginal party response to public notice and endorsement for study . . . . 42
65 Endorsement for study in absence of response . . . . . . . . . . . . . . . . . . . . . . . 42
Division 3--Carrying out cultural heritage study
66 Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
67 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
68 Engagement of cultural heritage assessors . . . . . . . . . . . . . . . . . . . . . . . . . . 43
69 Role of cultural heritage assessors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
70 Consultation supporting cultural heritage study . . . . . . . . . . . . . . . . . . . . . . 44
Division 4--Recording by chief executive
71 Giving of cultural heritage study to chief executive for recording . . . . . . . . 45
72 Consideration of cultural heritage study before recording . . . . . . . . . . . . . . 45
73 Requirements for recording cultural heritage study . . . . . . . . . . . . . . . . . . . 46
74 Recording or refusing to record findings of cultural heritage study . . . . . . . 47
Division 5--Objections, hearing and recommendation
75 Definitions for div 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
76 Objection to refusal to record findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
77 Tribunal's hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
78 Tribunal's recommendation to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Division 6--Recording by Minister
79 Recording or refusing to record findings of cultural heritage study . . . . . . . 51
PART 7--CULTURAL HERITAGE MANAGEMENT PLANS
Division 1--Introduction
80 When cultural heritage management plan is or may be required--div 2 . . . 52
81 Requirements for developing cultural heritage management plan and
having it approved--divs 3 to 7 ............................ 52
82 Responsibility for developing cultural heritage management plan . . . . . . . . 52
83 Voluntary development of cultural heritage management plan . . . . . . . . . . . 52
84 Approved cultural heritage management plan may not require
particular action ........................................... 52
85 Cultural heritage management plan guidelines . . . . . . . . . . . . . . . . . . . . . . . 53
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Aboriginal Cultural Heritage Bill 2003
Division 2--Protection of cultural heritage under cultural
heritage management plans
86 Application of div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
87 Cultural heritage management plan needed if EIS needed . . . . . . . . . . . . . . 53
88 Cultural heritage management plan may be needed if other
environmental authority needed ............................. 54
89 Cultural heritage management plan needed under IPA . . . . . . . . . . . . . . . . . 55
Division 3--Preparing to develop cultural heritage management plan
90 Reference to part of plan area may be taken to include reference to whole . 55
91 Giving of written notice (proposed plan) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
92 Basic information requirements for written notice (proposed plan) . . . . . . . 56
93 Additional requirements for notice to Aboriginal cultural heritage body . . . 57
94 Additional requirements for notice to Aboriginal party . . . . . . . . . . . . . . . . 58
95 Additional requirements for notice to representative body . . . . . . . . . . . . . . 58
96 Giving of public notice (proposed plan) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
97 Aboriginal cultural heritage body response to written notice
and endorsement for plan .................................. 60
98 Aboriginal party response to written notice and endorsement for plan . . . . 60
99 Aboriginal party response to public notice and endorsement for plan . . . . . 60
100 Becoming Aboriginal party after written notice (proposed plan) is given . . 61
101 Endorsement for plan in absence of response . . . . . . . . . . . . . . . . . . . . . . . . 62
Division 4--Development of cultural heritage management plan
102 Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
103 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
104 Consultation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
105 Reaching agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
106 Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Division 5--Approval by chief executive
107 Chief executive approval of plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
108 Consideration of plan before approval if no endorsed party . . . . . . . . . . . . . 65
109 Approving or refusing to approve plan if no endorsed party . . . . . . . . . . . . 66
Division 6--Objection or referral, hearing and recommendation
110 Definitions for div 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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Aboriginal Cultural Heritage Bill 2003
111 Objection to tribunal to refusal to approve agreed plan . . . . . . . . . . . . . . . . 67
112 Sponsor may refer plan to tribunal after unsuccessful mediation . . . . . . . . . 67
113 Sponsor may refer plan to tribunal after failure to agree. . . . . . . . . . . . . . . . 67
114 Administrative details for objection or referral . . . . . . . . . . . . . . . . . . . . . . . 68
115 Substantive requirements for objection or referral . . . . . . . . . . . . . . . . . . . . 68
116 Tribunal's hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
117 Tribunal's recommendation to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
118 Reaching the recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
119 General time requirement for making recommendation . . . . . . . . . . . . . . . . 71
Division 7--Approval by Minister
120 Approving or refusing to approve plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
PART 8--INVESTIGATION AND ENFORCEMENT
Division 1--Authorised officers
121 Appointment and qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
122 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . . . . . . . . . 72
123 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
124 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
125 When authorised officer ceases to hold office . . . . . . . . . . . . . . . . . . . . . . . . 73
126 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
127 Return of identity card. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Division 2--Powers of authorised officers
Subdivision 1--Entry of places
128 Power to enter places. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Subdivision 2--Procedure for entry
129 Entry with consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
130 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
131 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
132 Special warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
133 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Subdivision 3--Powers after entry
134 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
135 Failure to help authorised officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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Aboriginal Cultural Heritage Bill 2003
136 Failure to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Subdivision 4--Power to seize evidence
137 Seizing evidence at a place that may be entered without consent
or warrant .......................................... 80
138 Seizing evidence at a place that may only be entered with consent
or warrant ............................................. 80
139 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
140 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
141 Power to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
142 Receipts for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
143 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
144 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Subdivision 5--Power to obtain information
145 Power to require name and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
146 Failure to give name or address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 3--General enforcement matters
147 Notice of damage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
148 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
149 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
150 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
151 Obstructing authorised officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
PART 9--MISCELLANEOUS PROVISIONS
152 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
153 Access to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
154 Advisory committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
155 Purchase or compulsory acquisition to protect cultural heritage . . . . . . . . . 88
156 Proceedings for an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
157 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
158 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
159 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 10--REPEAL
160 Repeal of Cultural Record (Landscapes Queensland and Queensland
Estate) Act 1987 ........................................ 90
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Aboriginal Cultural Heritage Bill 2003
PART 11--TRANSITIONAL PROVISIONS
161 Confirmation of ownership of Aboriginal cultural heritage
before commencement .................................... 91
162 Recording information about designated landscape areas . . . . . . . . . . . . . . 91
163 Foundation material for database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
164 Existing agreement for carrying out activity . . . . . . . . . . . . . . . . . . . . . . . . . 92
165 Permit under repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
166 Authority obtained before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . 92
167 Cultural heritage arrangements for project authorised
before commencement .................................. 93
168 Cultural heritage arrangements for project not authorised
before commencement .................................... 93
169 References to repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
PART 12--AMENDMENT OF ACTS
170 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 95
AMENDMENT OF ACTS
COASTAL PROTECTION AND MANAGEMENT ACT 1995. . . . . . . . . . 95
FORESTRY ACT 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
FREEDOM OF INFORMATION ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . 97
LAND AND RESOURCES TRIBUNAL ACT 1999 . . . . . . . . . . . . . . . . . . 98
NATURE CONSERVATION ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
WHISTLEBLOWERS PROTECTION ACT 1994 . . . . . . . . . . . . . . . . . . . . 99
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 101
DICTIONARY
2003
A BILL
FOR
An Act to make provision for Aboriginal cultural heritage, and for
other purposes
s1 10 s5
Aboriginal 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 Aboriginal Cultural Heritage Act 2003. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
3 Act binds all persons 8
(1) This Act binds all persons including the State and, to the extent the 9
legislative power of the Parliament permits, the Commonwealth and the 10
other States. 11
(2) Nothing in this Act makes the State liable to be prosecuted for an 12
offence. 13
Division 2--Purpose of Act 14
4 Main purpose of Act 15
The main purpose of this Act is to provide effective recognition, 16
protection and conservation of Aboriginal cultural heritage. 17
5 Principles underlying Act's main purpose 18
The following fundamental principles underlie this Act's main 19
purpose-- 20
s6 11 s6
Aboriginal Cultural Heritage Bill 2003
(a) the recognition, protection and conservation of Aboriginal 1
cultural heritage should be based on respect for Aboriginal 2
knowledge, culture and traditional practices; 3
(b) Aboriginal people should be recognised as the primary 4
guardians, keepers and knowledge holders of Aboriginal cultural 5
heritage; 6
(c) it is important to respect, preserve and maintain knowledge, 7
innovations and practices of Aboriginal communities and to 8
promote understanding of Aboriginal cultural heritage; 9
(d) activities involved in recognition, protection and conservation of 10
Aboriginal cultural heritage are important because they allow 11
Aboriginal people to reaffirm their obligations to `law and 12
country'; 13
(e) there is a need to establish timely and efficient processes for the 14
management of activities that may harm Aboriginal cultural 15
heritage. 16
6 How main purpose of Act is to be achieved 17
For achieving effective recognition, protection and conservation of 18
Aboriginal cultural heritage, this Act provides for the following-- 19
(a) recognising Aboriginal ownership of Aboriginal human remains 20
wherever held; 21
(b) recognising Aboriginal ownership of Aboriginal cultural heritage 22
of a secret or sacred nature held in State collections; 23
(c) recognising Aboriginal ownership of Aboriginal cultural heritage 24
that is lawfully taken away from an area by an Aboriginal party 25
for the area; 26
(d) establishing a duty of care for activities that may harm 27
Aboriginal cultural heritage; 28
(e) establishing powers of protection, investigation and enforcement; 29
(f) establishing a database and a register for recording Aboriginal 30
cultural heritage; 31
(g) ensuring Aboriginal people are involved in processes for 32
managing the recognition, protection and conservation of 33
Aboriginal cultural heritage; 34
s7 12 s9
Aboriginal Cultural Heritage Bill 2003
(h) establishing a process for the comprehensive study of Aboriginal 1
cultural heritage; 2
(i) establishing processes for the timely and efficient management of 3
activities to avoid or minimise harm to Aboriginal cultural 4
heritage. 5
Division 3--Interpretation 6
7 Definitions 7
The dictionary in schedule 2 defines particular words used in this Act. 8
8 Meaning of "Aboriginal cultural heritage" 9
"Aboriginal cultural heritage" is anything that is-- 10
(a) a significant Aboriginal area in Queensland; or 11
(b) a significant Aboriginal object; or 12
(c) evidence, of archaeological or historic significance, of Aboriginal 13
occupation of an area of Queensland. 14
9 Meaning of "significant Aboriginal area" 15
A "significant Aboriginal area" is an area of particular significance to 16
Aboriginal people because of either or both of the following-- 17
(a) Aboriginal tradition;1 18
(b) the history, including contemporary history, of any Aboriginal 19
party for the area. 20
1 Under the Acts Interpretation Act 1954, section 36 (Meaning of commonly used
words and expressions), "Aboriginal tradition" means the body of traditions,
observances, customs and beliefs of Aboriginal people generally or of a particular
community or group of Aboriginal people, and includes any such traditions,
observances, customs and beliefs relating to particular persons, areas, objects or
relationships.
s 10 13 s 12
Aboriginal Cultural Heritage Bill 2003
10 Meaning of "significant Aboriginal object" 1
A "significant Aboriginal object" is an object of particular significance 2
to Aboriginal people because of either or both of the following-- 3
(a) Aboriginal tradition; 4
(b) the history, including contemporary history, of an Aboriginal 5
party for an area. 6
11 Extension of evidence of occupation to surroundings 7
If a particular object or structure is evidence of Aboriginal occupation, 8
the area immediately surrounding the object or structure is also evidence of 9
Aboriginal occupation to the extent the area can not be separated from the 10
object or structure without destroying or diminishing the object or 11
structure's significance as evidence of Aboriginal occupation. 12
12 Identifying significant Aboriginal areas 13
(1) This section gives more information about identifying significant 14
Aboriginal areas. 15
(2) For an area to be a significant Aboriginal area, it is not necessary for 16
the area to contain markings or other physical evidence indicating 17
Aboriginal occupation or otherwise denoting the area's significance. 18
(3) For example, the area might be a ceremonial place, a birthing place, a 19
burial place or the site of a massacre. 20
(4) Also, if significant Aboriginal objects exist in an area and the 21
significance of the objects is intrinsically linked with their location in the 22
area-- 23
(a) the existence of the objects in the area is enough on its own to 24
make the area a significant Aboriginal area; and 25
(b) if it is reasonably appropriate under this Act, the immediate area 26
and the objects in it may be taken to be, collectively, a significant 27
Aboriginal area. 28
(5) For identifying a significant Aboriginal area, regard may be had to 29
authoritative anthropological, biogeographical, historical and 30
archaeological information. 31
s 13 14 s 14
Aboriginal Cultural Heritage Bill 2003
13 Interpretation to support existing rights and interests 1
A provision of this Act must not be interpreted in a way that would allow 2
the provision to operate in a way that prejudices-- 3
(a) a right of ownership of a traditional group of Aboriginal people, 4
or of a member of a traditional group of Aboriginal people, in 5
Aboriginal cultural heritage used or held for traditional purposes 6
under Aboriginal tradition; or 7
(b) a person's enjoyment or use of, or free access to, Aboriginal 8
cultural heritage, if-- 9
(i) the person usually lives according to Aboriginal tradition as 10
it relates to a particular group of Aboriginal people; and 11
(ii) the access, enjoyment or use is sanctioned by the Aboriginal 12
tradition; or 13
(c) native title rights and interests. 14
PART 2--OWNERSHIP, CUSTODIANSHIP AND 15
POSSESSION OF ABORIGINAL CULTURAL 16
HERITAGE 17
Division 1--Preliminary 18
14 Object and intent 19
(1) The object of this part is to make rules about ownership, 20
custodianship and possession of Aboriginal cultural heritage. 21
(2) The basic intent underlying the rules stated in this part is that 22
Aboriginal cultural heritage should be protected. 23
(3) A supporting intent is that, as far as practicable, Aboriginal cultural 24
heritage should be owned and protected by Aboriginal people with 25
traditional or familial links to the cultural heritage if it is comprised of any 26
of the following-- 27
(a) Aboriginal human remains; 28
(b) secret or sacred objects; 29
s 15 15 s 16
Aboriginal Cultural Heritage Bill 2003
(c) Aboriginal cultural heritage lawfully taken away from an area. 1
(4) Another supporting intent is that Aboriginal cultural heritage of the 2
type mentioned in subsection (3)(a) or (b) that is in the custody of the State, 3
including the Queensland Museum, should continue to be protected by the 4
State until it can be transferred into the protection of its Aboriginal owners. 5
Division 2--Aboriginal human remains 6
15 Ownership of Aboriginal human remains 7
(1) On the commencement of this section, Aboriginal people who have a 8
traditional or familial link with Aboriginal human remains in existence 9
immediately before the commencement become the owners of the human 10
remains if they are not already the owners. 11
(2) Subsection (1) applies regardless of who may have owned the 12
Aboriginal human remains before the commencement of this section. 13
16 Aboriginal human remains in custody of State 14
(1) This section applies to Aboriginal human remains if the human 15
remains are in the custody of an entity that represents or is the State. 16
(2) The persons who own the human remains may at any time ask the 17
entity-- 18
(a) to continue to be the custodian of the human remains; or 19
(b) to return the human remains to them. 20
(3) If the entity is satisfied the persons making the request under 21
subsection (2) are the owners of the human remains, the entity must 22
comply with the request to the greatest practicable extent. 23
(4) The persons who own the human remains are not limited to making 24
only 1 request under subsection (2). 25
26
Example--
27
The owners could ask for the Queensland Museum to continue its custody of the human
28
remains while they make suitable arrangements for dealing with the human remains, at
29
which time they could ask for the human remains to be returned to them.
s 17 16 s 18
Aboriginal Cultural Heritage Bill 2003
17 Possession of Aboriginal human remains 1
(1) This section applies to a person, other than the State, if the person has 2
in the person's possession Aboriginal human remains that were in existence 3
immediately before the commencement of this section and the person does 4
not have the necessary traditional or familial links with the human remains 5
to be the owner of the human remains. 6
(2) The person must take all reasonable steps to ensure that the human 7
remains are taken into the custody of the chief executive as soon as 8
practicable. 9
Maximum penalty for subsection (2)--200 penalty units. 10
18 Knowledge of Aboriginal human remains 11
(1) This section applies to a person if the person-- 12
(a) knows of the existence and location of Aboriginal human 13
remains, but does not own the human remains or have possession 14
of them; and 15
(b) knows, or ought reasonably to know, the human remains are, or 16
are reasonably likely to be, Aboriginal human remains; and 17
(c) knows or suspects-- 18
(i) that the chief executive does not know of the existence of 19
the human remains; or 20
(ii) that the chief executive knows of the existence of the human 21
remains, but does not know the human remains are, or are 22
reasonably likely to be, Aboriginal human remains. 23
(2) The person must-- 24
(a) as soon as practicable, advise the chief executive of the existence 25
and location of the human remains; and 26
(b) give the chief executive all details about the nature and location 27
of the human remains the chief executive reasonably requires. 28
Maximum penalty--100 penalty units. 29
(3) For subsection (2), the obligation to advise the chief executive and to 30
give the chief executive details must be complied with-- 31
s 19 17 s 19
Aboriginal Cultural Heritage Bill 2003
(a) if all the circumstances giving rise to the obligation arose before 1
the commencement of this section--as soon as practicable after 2
the commencement; or 3
(b) if all the circumstances giving rise to the obligation arise after the 4
commencement, or if the circumstances arose partly before the 5
commencement and arise partly after the commencement--as 6
soon as practicable after all the circumstances apply. 7
(4) For subsection (1)(c), the chief executive is taken to be in possession 8
of any knowledge that was ever in the possession of the Minister mentioned 9
in section 352 of the repealed Act. 10
Division 3--Secret and sacred objects 11
19 Ownership and custody of secret or sacred object 12
(1) This section applies to an object that is Aboriginal cultural heritage 13
if-- 14
(a) the object is a secret or sacred object; and 15
16
Example of secret or sacred object--
17
a ceremonial item
(b) the object is, immediately before the commencement of this 18
section, in the custody of an entity that represents or is the State, 19
or after the commencement comes into the custody of an entity 20
that represents or is the State. 21
(2) The Aboriginal people who have a traditional or familial link with the 22
object, if they are not already the owners, become the owners of the 23
object-- 24
(a) if the object was in the custody of the entity immediately before 25
the commencement of this section--on the commencement; or 26
(b) otherwise--when the object comes into the custody of the entity. 27
(3) The persons who own the object may at any time ask the entity-- 28
(a) to continue to be the custodian of the object; or 29
(b) to return the object to them. 30
2 Section 35 (Duties respecting burial remains) of the repealed Act
s 20 18 s 20
Aboriginal Cultural Heritage Bill 2003
(4) If the entity is satisfied the persons making the request under 1
subsection (3) are the owners of the object, the entity must comply with the 2
request to the greatest practicable extent. 3
(5) The persons who own the object are not limited to making only 4
1 request under subsection (3). 5
6
Example--
7
The owners could ask for the Queensland Museum to continue its custody of an object
8
while they make suitable arrangements for dealing with the object, at which time they
9
could ask for the object to be returned to them.
Division 4--Other Aboriginal cultural heritage 10
20 Ownership of Aboriginal cultural heritage 11
(1) The following Aboriginal cultural heritage is not in the ownership of 12
the State-- 13
(a) human remains and secret or sacred objects owned by Aboriginal 14
people under division 2 or 3; 15
(b) Aboriginal cultural heritage passing into the ownership of an 16
Aboriginal party under this Act; 17
(c) Aboriginal cultural heritage owned by a person whose ownership 18
is confirmed under a provision of this Act; 19
(d) Aboriginal cultural heritage owned by a person to whom 20
ownership is lawfully transferred. 21
(2) Otherwise, the State owns Aboriginal cultural heritage. 22
(3) Subsection (2) applies to an object or evidence that is Aboriginal 23
cultural heritage even if the object or evidence-- 24
(a) forms, or has previously formed, part of land; or 25
(b) is located, or has previously been located, in, on or under land. 26
(4) Subsections (2) and (3) do not operate to give the State ownership 27
of-- 28
(a) land in which is situated an object or evidence that becomes 29
owned by the State under subsection (2); or 30
(b) any other land. 31
s 21 19 s 23
Aboriginal Cultural Heritage Bill 2003
21 Continued use of surface 1
(1) This section applies if Aboriginal cultural heritage is located on the 2
surface of land, and-- 3
(a) under the tenure on which the land is held, the owner or occupier 4
of the land is entitled to the use and enjoyment of the surface of 5
the land; or 6
(b) a person is otherwise entitled to the use and enjoyment of the 7
surface of the land. 8
(2) Despite the existence of the Aboriginal cultural heritage, the owner 9
or occupier or other person is entitled to the use and enjoyment of the land 10
to the extent that the person does not unlawfully harm the cultural heritage. 11
Division 5--Role of Queensland Museum 12
22 Care of Aboriginal cultural heritage 13
(1) The Queensland Museum may act under the Queensland Museum 14
Act 1970 in relation to all Aboriginal cultural heritage in its custody. 15
(2) Subsection (1) applies subject to the particular requirements of this 16
Act about the ownership, custody or protection of Aboriginal cultural 17
heritage. 18
(3) The Queensland Museum may at any time accept custody of 19
Aboriginal cultural heritage. 20
PART 3--PROTECTION OF ABORIGINAL CULTURAL 21
HERITAGE 22
Division 1--Key cultural heritage protection provisions 23
23 Cultural heritage duty of care 24
(1) A person who carries out an activity must take all reasonable and 25
practicable measures to ensure the activity does not harm Aboriginal 26
cultural heritage (the "cultural heritage duty of care"). 27
s 23 20 s 23
Aboriginal 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) Without limiting the matters that may be considered by a court 4
required to decide whether a person has complied with the cultural heritage 5
duty of care in carrying out an activity, the court may consider the 6
following-- 7
(a) the nature of the activity, and the likelihood of its causing harm 8
to Aboriginal cultural heritage; 9
(b) the nature of the Aboriginal cultural heritage likely to be harmed 10
by the activity; 11
(c) the extent to which the person consulted with Aboriginal parties 12
about the carrying out of the activity, and the results of the 13
consultation; 14
(d) whether the person carried out a study or survey, of any type, of 15
the area affected by the activity to find out the location and extent 16
of Aboriginal cultural heritage, and the extent of the study or 17
survey; 18
(e) whether the person searched the database and register for 19
information about the area affected by the activity; 20
(f) the extent to which the person has complied with cultural 21
heritage duty of care guidelines; 22
(g) the nature and extent of past uses in the area affected by the 23
activity. 24
(3) A person who carries out an activity is taken to have complied with 25
the cultural heritage duty of care in relation to Aboriginal cultural heritage 26
if-- 27
(a) the person is acting-- 28
(i) under the authority of another provision of this Act that 29
applies to the Aboriginal cultural heritage; or 30
(ii) under an approved cultural heritage management plan that 31
applies to the Aboriginal cultural heritage; or 32
(iii) under a native title agreement or another agreement with an 33
Aboriginal party, unless the Aboriginal cultural heritage is 34
expressly excluded from being subject to the agreement; or 35
s 24 21 s 24
Aboriginal Cultural Heritage Bill 2003
(iv) in compliance with cultural heritage duty of care guidelines; 1
or 2
(v) in compliance with native title protection conditions, but 3
only if the cultural heritage is expressly or impliedly the 4
subject of the conditions; or 5
(b) the person owns the Aboriginal cultural heritage, or is acting with 6
the owner's agreement; or 7
(c) the activity is necessary because of an emergency, including for 8
example, a bushfire or other natural disaster. 9
24 Unlawful harm to Aboriginal cultural heritage 10
(1) A person must not harm Aboriginal cultural heritage if the person 11
knows or ought reasonably to know that it is Aboriginal cultural heritage. 12
Maximum penalty-- 13
(a) for an individual-- 14
(i) if the Aboriginal cultural heritage is a registered significant 15
area or registered significant object--1 000 penalty units or 16
2 years imprisonment; or 17
(ii) otherwise--1 000 penalty units; 18
(b) for a corporation--10 000 penalty units. 19
(2) A person who harms Aboriginal cultural heritage does not commit an 20
offence under subsection (1) if-- 21
(a) the person is acting-- 22
(i) under the authority of another provision of this Act that 23
applies to the Aboriginal cultural heritage; or 24
(ii) under an approved cultural heritage management plan that 25
applies to the Aboriginal cultural heritage; or 26
(iii) under a native title agreement or another agreement with an 27
Aboriginal party, unless the Aboriginal cultural heritage is 28
expressly excluded from being subject to the agreement; or 29
(iv) in compliance with cultural heritage duty of care guidelines; 30
or 31
(v) in compliance with the cultural heritage duty of care; or 32
s 25 22 s 25
Aboriginal Cultural Heritage Bill 2003
(vi) in compliance with native title protection conditions, but 1
only if the Aboriginal cultural heritage is expressly or 2
impliedly the subject of the conditions; or 3
(b) the person owns the Aboriginal cultural heritage, or is acting with 4
the owner's agreement; or 5
(c) the harm is the result of doing an act that is necessary because of 6
an emergency, including for example, a bushfire or other natural 7
disaster. 8
(3) For subsection (1), it does not matter whether the circumstances of 9
the person's knowledge arose before the commencement of this section, or 10
arise after the commencement, or arose partly before the commencement 11
and arise partly after the commencement. 12
25 Prohibited excavation, relocation and taking away 13
(1) A person must not excavate, relocate or take away Aboriginal cultural 14
heritage if the person knows or ought reasonably to know that it is 15
Aboriginal cultural heritage. 16
Maximum penalty-- 17
(a) for an individual--1 000 penalty units; 18
(b) for a corporation--10 000 penalty units. 19
(2) A person who excavates, relocates or takes away Aboriginal cultural 20
heritage does not commit an offence under subsection (1) if-- 21
(a) the person is acting-- 22
(i) under the authority of another provision of this Act that 23
applies to the Aboriginal cultural heritage; or 24
(ii) under an approved cultural heritage management plan that 25
applies to the Aboriginal cultural heritage; or 26
(iii) under a native title agreement or another agreement with an 27
Aboriginal party, unless the Aboriginal cultural heritage is 28
expressly excluded from being subject to the agreement; or 29
(iv) in compliance with cultural heritage duty of care guidelines; 30
or 31
(v) in compliance with the cultural heritage duty of care; or 32
s 26 23 s 26
Aboriginal Cultural Heritage Bill 2003
(vi) in compliance with native title protection conditions, but 1
only if the Aboriginal cultural heritage is expressly or 2
impliedly the subject of the conditions; or 3
(b) the person owns the Aboriginal cultural heritage, or is acting with 4
the owner's agreement; or 5
(c) the excavation, relocation or taking away is necessary because of 6
an emergency, including for example, a bushfire or other natural 7
disaster. 8
(3) For subsection (1), it does not matter whether the circumstances of 9
the person's knowledge arose before the commencement of this section, or 10
arise after the commencement, or arose partly before the commencement 11
and arise partly after the commencement. 12
26 Unlawful possession of Aboriginal cultural heritage 13
(1) A person must not have in the person's possession an object that is 14
Aboriginal cultural heritage if the person knows or ought reasonably to 15
know that the object is Aboriginal cultural heritage 16
Maximum penalty-- 17
(a) for an individual--1 000 penalty units; 18
(b) for a corporation--10 000 penalty units. 19
(2) A person who has in the person's possession an object that is 20
Aboriginal cultural heritage does not commit an offence under 21
subsection (1) if-- 22
(a) the person is acting-- 23
(i) under the authority of another provision of this Act that 24
applies to the object; or 25
(ii) under an approved cultural heritage management plan that 26
applies to the object; or 27
(iii) under a native title agreement or another agreement with an 28
Aboriginal party, unless the object is expressly excluded 29
from being subject to the agreement; or 30
(iv) in compliance with cultural heritage duty of care guidelines; 31
or 32
(v) in compliance with the cultural heritage duty of care; or 33
s 27 24 s 28
Aboriginal Cultural Heritage Bill 2003
(vi) in compliance with native title protection conditions, but 1
only if the object is expressly or impliedly the subject of the 2
conditions; or 3
(b) the person owns the object, or is acting with the owner's 4
agreement; or 5
(c) the person's possession of the object is necessary because of an 6
emergency, including for example, a bushfire or other natural 7
disaster. 8
(3) For subsection (1), it does not matter whether the circumstances of 9
the person's knowledge arose before the commencement of this section, or 10
arise after the commencement, or arose partly before the commencement 11
and arise partly after the commencement. 12
(4) This section does not apply to Aboriginal human remains. 13
27 Court may order costs of rehabilitation or restoration 14
(1) On a conviction of a person for an offence under this division 15
involving the unlawful harming or possessing of Aboriginal cultural 16
heritage, the court may, if considered appropriate, order the person to pay 17
to the State or another appropriate entity an amount for or towards-- 18
(a) the cost of any repair or restoration of the Aboriginal cultural 19
heritage needing to be carried out; and 20
(b) the cost of any repair or restoration of anything else that is not 21
itself the Aboriginal cultural heritage, but that is associated with 22
the Aboriginal cultural heritage and also needs to be repaired or 23
restored because of the offence. 24
(2) In this section-- 25
"conviction" includes a plea of guilty or a finding of guilt by a court, even 26
though a conviction is not recorded. 27
Division 2--Duty of care guidelines 28
28 Cultural heritage duty of care guidelines 29
(1) The Minister may by gazette notice notify guidelines ("cultural 30
heritage duty of care guidelines") identifying reasonable and practicable 31
s 29 25 s 30
Aboriginal Cultural Heritage Bill 2003
measures for ensuring activities are managed to avoid or minimise harm to 1
Aboriginal cultural heritage. 2
(2) In formulating cultural heritage duty of care guidelines, the Minister 3
may consult with the following-- 4
(a) Aboriginal groups; 5
(b) industry groups; 6
(c) local governments; 7
(d) other persons the Minister considers appropriate. 8
Division 3--Information about cultural heritage 9
29 Information protection provision 10
(1) This section applies to a person who, under this Act, submits to the 11
chief executive or the Minister a report or other document about Aboriginal 12
cultural heritage matters. 13
(2) The person must not include in the report or other document 14
knowledge or information given to or otherwise acquired by the person 15
if-- 16
(a) the person knows the knowledge or information is of a secret or 17
sacred nature; and 18
(b) the Aboriginal people in whose understanding the knowledge or 19
information is of a secret or sacred nature have not agreed to its 20
inclusion in the report or other document. 21
Maximum penalty-- 22
(a) for an individual--100 penalty units; 23
(b) for a corporation--1 000 penalty units. 24
30 Putting cultural heritage management plan into effect 25
(1) A person who is involved in putting an approved cultural heritage 26
management plan into effect must take all reasonable steps to ensure the 27
chief executive is advised about all Aboriginal cultural heritage revealed to 28
exist because of any activity carried out under the plan. 29
Maximum penalty-- 30
s 31 26 s 32
Aboriginal Cultural Heritage Bill 2003
(a) for an individual--100 penalty units; 1
(b) for a corporation--1 000 penalty units. 2
(2) Subsection (1) does not require the giving of advice to the chief 3
executive if giving the advice would be a contravention of the information 4
protection provision. 5
31 Other activities 6
(1) A person who is involved in carrying out an activity, other than an 7
activity under an approved cultural heritage management plan, may advise 8
the chief executive of Aboriginal cultural heritage revealed to exist because 9
of the activity. 10
(2) Subsection (1) does not authorise the giving of advice to the chief 11
executive if giving the advice would be a contravention of the information 12
protection provision. 13
Division 4--Protection of cultural heritage under action of Minister 14
32 Stop orders 15
(1) This section applies if the Minister is satisfied there are reasonable 16
grounds for concluding-- 17
(a) a person is carrying out or is about to carry out an activity; and 18
(b) either or both of the following apply-- 19
(i) in carrying out the activity, the person is or will be harming 20
Aboriginal cultural heritage; 21
(ii) the carrying out of the activity is having or will have a 22
significant adverse impact on the cultural heritage value of 23
Aboriginal cultural heritage. 24
(2) The Minister may give the person a stop order for the activity. 25
(3) The stop order must be given to the person-- 26
(a) by giving it to the person personally; or 27
(b) if it is not reasonably practicable to give it to the person 28
personally--by fixing it in a prominent position at the place 29
where the activity is being carried out or is about to be carried 30
out. 31
s 33 27 s 33
Aboriginal Cultural Heritage Bill 2003
(4) The stop order-- 1
(a) operates from when it is given to the person under subsection (3); 2
and 3
(b) unless it is revoked sooner, continues in force for 30 days from 4
when it is given to the person, or for a shorter period stated in the 5
order. 6
(5) The Minister may give 1 further stop order of not more than 30 days 7
under this section for the person's activity. 8
(6) A person must not knowingly contravene a stop order given to a 9
person under this section. 10
Maximum penalty--17 000 penalty units. 11
(7) The penalty amount mentioned in subsection (6) is the maximum 12
penalty amount that may be imposed for an offence under the subsection, 13
even if the offence is committed by a corporation. 14
(8) A stop order under this section is ineffective in its application to an 15
activity if the activity is the subject of an injunction granted in the exercise 16
of the exclusive jurisdiction the tribunal has for cultural heritage matters 17
under the Land and Resources Tribunal Act 1999, section 53.3 18
33 Particular steps to preserve cultural heritage 19
The Minister may-- 20
(a) for the State, acquire by purchase or gift Aboriginal cultural 21
heritage for the purpose of its preservation; and 22
(b) cause structures to be erected, and other steps to be taken, that 23
are necessary or desirable to preserve the Aboriginal cultural 24
heritage. 25
3 Land and Resources Tribunal Act 1999, section 53 (Exclusive jurisdiction for certain
cultural heritage matters)
s 34 28 s 35
Aboriginal Cultural Heritage Bill 2003
PART 4--NATIVE TITLE PARTIES, ABORIGINAL 1
PARTIES AND ABORIGINAL CULTURAL HERITAGE 2
BODIES 3
34 Native title party for an area 4
(1) Each of the following is a "native title party" for an area-- 5
(a) a registered native title claimant for the area; 6
(b) a person who, at any time after the commencement of this 7
section, was a registered native title claimant for the area, but 8
only if-- 9
(i) the person's claim has failed, but there is no other registered 10
native title claimant for the area, and there is not, and never 11
has been, a native title holder for the area; or 12
(ii) the person has surrendered the person's native title under an 13
indigenous land use agreement registered on the Register of 14
Indigenous Land Use Agreements; or 15
(iii) the person's native title has been compulsorily acquired or 16
has otherwise been extinguished; 17
(c) a registered native title holder for the area; 18
(d) a person who was a registered native title holder for the area, but 19
only if-- 20
(i) the person has surrendered the person's native title under an 21
indigenous land use agreement registered on the Register of 22
Indigenous Land Use Agreements; or 23
(ii) the person's native title has been compulsorily acquired or 24
has otherwise been extinguished. 25
(2) If a person would be a native title party under subsection (1)(b) but 26
the person is no longer alive, the native title party is instead taken to be the 27
native title claim group who, under the Commonwealth Native Title Act, 28
authorised the person to make the relevant native title determination 29
application. 30
35 Aboriginal party for an area 31
(1) A native title party for an area is an "Aboriginal party" for the area. 32
s 35 29 s 35
Aboriginal Cultural Heritage Bill 2003
(2) Subsection (3) applies to a native title party for an area who-- 1
(a) is or was a registered native title claimant; or 2
(b) is the native title claim group who authorised a person who is no 3
longer alive, but who was a registered native title claimant, to 4
make a native title determination application. 5
(3) The native title party is an "Aboriginal party" for the whole area 6
included within the outer boundaries of the area in relation to which the 7
application was made under the Commonwealth Native Title Act for a 8
determination of native title, regardless of the nature and extent of the 9
claimant's claims in relation to any particular part of the whole area. 10
(4) Subsection (5) applies to a native title party for an area who is or was 11
a registered native title holder the subject of a determination of native title 12
under the Commonwealth Native Title Act. 13
(5) The native title party is an "Aboriginal party" for the whole area 14
included within the outer boundaries of the area in relation to which the 15
application for the determination was made, regardless of the extent to 16
which native title was found to exist in relation to any particular part of the 17
whole area. 18
(6) However, a native title party to whom subsection (5) applies is not an 19
"Aboriginal party" for a part of the area if-- 20
(a) native title was not found to exist in relation to the part; and 21
(b) there is a registered native title claimant for the part. 22
(7) If there is no native title party for an area, a person is an "Aboriginal 23
party" for the area if-- 24
(a) the person is an Aboriginal person with particular knowledge 25
about traditions, observances, customs or beliefs associated with 26
the area; and 27
(b) the person-- 28
(i) has responsibility under Aboriginal tradition for some or all 29
of the area, or for significant Aboriginal objects located or 30
originating in the area; or 31
(ii) is a member of a family or clan group that is recognised as 32
having responsibility under Aboriginal tradition for some or 33
all of the area, or for significant Aboriginal objects located 34
or originating in the area. 35
s 36 30 s 36
Aboriginal Cultural Heritage Bill 2003
36 Registration as Aboriginal cultural heritage body 1
(1) The Minister may, on the application of a corporation, register the 2
corporation as an Aboriginal cultural heritage body for an area. 3
(2) The Minister must not register a corporation as an Aboriginal cultural 4
heritage body for an area if there is currently another corporation registered 5
as an Aboriginal cultural heritage body for the area or any part of the area. 6
(3) However, the Minister may register a corporation (the "new 7
corporation") as an Aboriginal cultural heritage body for an area even 8
though there is currently another corporation (the "registered 9
corporation") registered as an Aboriginal cultural heritage body for the 10
area or any part of the area if-- 11
(a) the new corporation's registration is only for the purposes of a 12
particular project; and 13
(b) the registered corporation has given written agreement to the new 14
corporation's registration for the purposes of the project; and 15
(c) the registration provides that the registration is effective only 16
until the project finishes. 17
(4) The Minister may register a corporation as an Aboriginal cultural 18
heritage body for an area only if the Minister is satisfied that-- 19
(a) the corporation-- 20
(i) is an appropriate body to identify Aboriginal parties for the 21
area; and 22
(ii) has the capacity to identify Aboriginal parties for the area; 23
and 24
(b) either-- 25
(i) Aboriginal parties for the area that are native title parties for 26
the area agree the corporation should be registered; or 27
(ii) if there is no Aboriginal party for the area that is a native 28
title party for the area--there is substantial agreement 29
among the Aboriginal parties for the area that the 30
corporation should be registered. 31
32
Examples of corporations that may be appropriate to be registered--
33
a registered native title body corporate, a representative body that is a corporation, an
34
Aboriginal body incorporated for furthering the interests of Aboriginal people in
35
relation to land or cultural matters
s 37 31 s 38
Aboriginal Cultural Heritage Bill 2003
(5) In deciding whether to register a corporation as the Aboriginal 1
cultural heritage body for an area, the Minister may do any of the 2
following-- 3
(a) consult with Aboriginal parties for the area or parts of the area; 4
(b) advertise for submissions about the proposed registration of the 5
corporation; 6
(c) anything else the Minister considers necessary to inform himself 7
or herself. 8
(6) The Minister may cancel the registration of a corporation as the 9
Aboriginal cultural heritage body for an area if the Minister is no longer 10
satisfied about the matters mentioned in subsection (4) in relation to the 11
corporation. 12
(7) In this section-- 13
"register", a corporation, means record the corporation in the register. 14
37 Function of Aboriginal cultural heritage body 15
(1) The function of an Aboriginal cultural heritage body for an area is to 16
identify, for the benefit of a person who needs to know under this Act, the 17
Aboriginal parties for the area or for a particular part of the area. 18
(2) The Minister may give an Aboriginal cultural heritage body for an 19
area the financial or other help the body needs to carry out its function. 20
PART 5--COLLECTION AND MANAGEMENT OF 21
ABORIGINAL CULTURAL HERITAGE INFORMATION 22
Division 1--Aboriginal Cultural Heritage Database 23
38 Establishment of database 24
(1) The chief executive must establish and keep the Aboriginal Cultural 25
Heritage Database. 26
s 39 32 s 42
Aboriginal Cultural Heritage Bill 2003
(2) The chief executive may keep the database in the form or forms the 1
chief executive considers to be the most appropriate in the circumstances 2
for achieving the purpose of establishing the database. 3
39 Purpose of establishing database 4
(1) The purpose of establishing the database is to assemble, in a central 5
and accessible location, information about Aboriginal cultural heritage. 6
(2) The database is intended to be a research and planning tool to help 7
Aboriginal parties, researchers and other persons in their consideration of 8
the Aboriginal cultural heritage values of particular areas. 9
(3) The placing of information on the database is not intended to be 10
conclusive about whether the information is up-to-date, comprehensive or 11
otherwise accurate. 12
40 Placing information on database 13
(1) The chief executive may place information on the database to the 14
extent the chief executive considers appropriate, having regard especially 15
to the consistency of the information with existing anthropological, 16
biogeographical, historical and archaeological information. 17
(2) Information the chief executive places on the database may be either 18
information another person asks the chief executive to place on the 19
database or information the chief executive already holds. 20
41 Taking information off database 21
(1) The chief executive may take information off the database if the chief 22
executive is satisfied the information has been recorded in error. 23
(2) However, before acting under subsection (1) to take information 24
about Aboriginal cultural heritage for a particular area off the database, the 25
chief executive must, to the extent it is reasonably practicable to do so, 26
consult with any Aboriginal party for the area. 27
42 Availability of database to public generally 28
The chief executive must not give access to the database generally. 29
s 43 33 s 46
Aboriginal Cultural Heritage Bill 2003
43 Availability of database to Aboriginal party 1
(1) This section applies if an Aboriginal party for an area seeks 2
information from the database. 3
(2) The chief executive must give the Aboriginal party information from 4
the database to the extent that, in the chief executive's opinion, the 5
information on the database relates to the area. 6
44 Availability of database for cultural heritage duty of care 7
purposes 8
(1) This section applies if a person carrying out an activity, including for 9
example a land user, seeks information from the database. 10
(2) The chief executive must give the person information from the 11
database if, in the chief executive's opinion, the person has a particular 12
need to be aware of the information for satisfying the person's cultural 13
heritage duty of care. 14
(3) However, the person does not necessarily comply with the person's 15
cultural heritage duty of care only because the person has consulted the 16
database. 17
(4) If information is to be given to the person under subsection (2), the 18
information may be given to a nominee or professional advisor acting for 19
the person. 20
45 Availability of database to researcher 21
(1) This section applies if a researcher into Aboriginal cultural heritage 22
seeks information from the database. 23
(2) The chief executive may give the researcher information from the 24
database to the extent that, in the chief executive's opinion, the information 25
on the database relates to the research. 26
Division 2--Aboriginal Cultural Heritage Register 27
46 Establishment of register 28
(1) The chief executive must establish and keep the Aboriginal Cultural 29
Heritage Register. 30
s 47 34 s 48
Aboriginal Cultural Heritage Bill 2003
(2) The chief executive may keep the register in the form or forms the 1
chief executive considers to be the most appropriate in the circumstances 2
for-- 3
(a) achieving the purpose of establishing the register; and 4
(b) ensuring the register otherwise complies with the requirements of 5
this division. 6
47 Purpose of establishing register 7
(1) The purpose of establishing the register is to assemble in a central 8
and accessible location-- 9
(a) information contained in cultural heritage studies; and 10
(b) information about whether particular areas have been the subject 11
of cultural heritage management plans; and 12
(c) information about Aboriginal cultural heritage bodies; and 13
(d) other information necessary to help the consideration of 14
Aboriginal cultural heritage, including for example addresses for 15
service of Aboriginal parties. 16
(2) The register is intended to be-- 17
(a) a depository for information for consideration for land use and 18
land use planning, including, for example, for local government 19
planning schemes and for regional planning strategies; and 20
(b) a research and planning tool to help people in their consideration 21
of the Aboriginal cultural heritage values of particular objects 22
and areas. 23
48 Recording information from cultural heritage study 24
(1) This section applies if, under part 6, the chief executive or Minister 25
records in the register the findings of a cultural heritage study. 26
(2) The chief executive or Minister must record-- 27
(a) a description of the cultural heritage study adequate to 28
distinguish it from other cultural heritage studies; and 29
(b) a description of the study area, including, if necessary for 30
accurately locating the study area, a plan of the area and a 31
detailed description of its boundaries; and 32
s 49 35 s 49
Aboriginal Cultural Heritage Bill 2003
(c) a description of all Aboriginal cultural heritage that has been 1
identified in the study area and a description of its location; and 2
(d) in general terms, the reasons anything identified as Aboriginal 3
cultural heritage has been so identified, including, if appropriate, 4
whether it relates to men's or women's business; and 5
(e) if the study makes recommendations for the management of 6
Aboriginal cultural heritage identified in the study--the 7
recommendations; and 8
(f) for each area or object assessed as a significant Aboriginal area 9
or significant Aboriginal object--the name of each Aboriginal 10
party that assessed the area or object as a significant Aboriginal 11
area or significant Aboriginal object; and 12
(g) the name and contact details of each endorsed party for the study; 13
and 14
(h) the name of each endorsed party for the study who did not take 15
part in the carrying out of the study; and 16
(i) the name and contact details of each Aboriginal cultural heritage 17
body for the study area; and 18
(j) the name and contact details of each cultural heritage assessor for 19
the study; and 20
(k) when the study was completed. 21
49 Information about cultural heritage management plans 22
(1) The chief executive must record in the register identifying details for 23
each cultural heritage management plan approved, or in the process of 24
being developed, under this Act. 25
(2) The chief executive must arrange the register in a way giving the 26
persons searching the register reasonable access to information about-- 27
(a) whether any particular area of the State is the subject of-- 28
(i) an approved cultural heritage management plan; or 29
(ii) a cultural heritage management plan in the process of being 30
developed under this Act; and 31
(b) the contact details for the sponsor and endorsed parties for each 32
approved plan and plan being developed. 33
s 50 36 s 53
Aboriginal 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 Aboriginal 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 37 s 56
Aboriginal Cultural Heritage Bill 2003
(a) Aboriginal parties are responsible for assessing the level of 1
significance of areas and objects included in the study area that 2
are or appear to be significant Aboriginal areas and significant 3
Aboriginal 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) Aboriginal 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 38 s 57
Aboriginal 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 Aboriginal cultural 3
heritage body--each Aboriginal party that is a native title party 4
for the part of the study area; and 5
(d) each entity that is an Aboriginal cultural heritage body for a part 6
of the study area; and 7
(e) if, for a part of the study area, there is no Aboriginal cultural 8
heritage body and there is also no Aboriginal party that is a native 9
title party--each entity that is a representative body for the part 10
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 39 s 59
Aboriginal Cultural Heritage Bill 2003
relation to the nearest town, using bearings and approximate 1
distances. 2
58 Additional requirements for notice to Aboriginal cultural heritage 3
body 4
(1) If the written notice (proposed study) is given to an Aboriginal 5
cultural heritage body, the notice must, as well as complying with the basic 6
information requirements for the notice-- 7
(a) advise the body that if it wishes to identify an Aboriginal party to 8
take part in the cultural heritage study, it must give a written 9
notice to the sponsor identifying the party and giving the party's 10
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 an Aboriginal party to take part in the cultural 14
heritage study; and 15
(c) advise the body that an Aboriginal party identified by the body 16
might not be endorsed to take part in the study if the body does 17
not give the sponsor the written notice within the required time. 18
(2) For subsection (1)(b), the time the sponsor advises as being the time 19
by which the sponsor must be given the written notice identifying an 20
Aboriginal party to take part in the cultural heritage study must be-- 21
(a) the end of 30 days after the notice day (proposed study) for the 22
study; or 23
(b) a later time decided by the sponsor. 24
59 Additional requirements for notice to Aboriginal party 25
(1) If the written notice (proposed study) is given to an Aboriginal party, 26
the notice must, as well as complying with the basic information 27
requirements for the notice-- 28
(a) advise the party that if it wishes to take part in the cultural 29
heritage study, it must give a written notice to the sponsor that 30
the party wishes to take part in the study; and 31
(b) state the notice day (proposed study) for the study, and advise the 32
party of the time by which the sponsor must be given the written 33
notice that the party wishes to take part in the study; and 34
s 60 40 s 61
Aboriginal Cultural Heritage Bill 2003
(c) advise the party that it might not be endorsed to take part in the 1
study if it does not give the sponsor the written notice within the 2
required time. 3
(2) For subsection (1)(b), 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 the study must be-- 6
(a) the end of 30 days after the notice day (proposed study) for the 7
study; or 8
(b) a later time decided by the sponsor. 9
60 Additional requirements for notice to representative body 10
If the written notice (proposed study) is given to a representative body, 11
the notice must, as well as complying with the basic information 12
requirements for the notice, draw the attention of the representative body to 13
the public notice (proposed study) published or to be published under this 14
division. 15
61 Giving of public notice (proposed study) 16
(1) This section applies if, for a part of the study area (the "relevant 17
part")-- 18
(a) there is no Aboriginal cultural heritage body; and 19
(b) there is no Aboriginal party that is a native title party for the part. 20
(2) The sponsor must ensure that a public notice ("public notice 21
(proposed study)") is published in a newspaper circulating generally in 22
the relevant part. 23
(3) If there is an approved form for the public notice (proposed study), 24
the notice must be in the approved form. 25
(4) The public notice (proposed study) must be published as close as 26
practicable to the time the written notice (proposed study) is given. 27
(5) The public notice (proposed study) must-- 28
(a) be directed to Aboriginal parties for the relevant part; and 29
(b) advise the sponsor's name and contact details, including the 30
sponsor's address for service; and 31
s 62 41 s 62
Aboriginal Cultural Heritage Bill 2003
(c) advise that the sponsor intends to carry out the cultural heritage 1
study; and 2
(d) describe the study area for the study and identify its location, 3
including, to the extent appropriate and practicable in the 4
circumstances, by describing the study area's location in relation 5
to the nearest town, using bearings and approximate distances; 6
and 7
(e) describe the relevant part, if it is less extensive than the study 8
area; and 9
(f) advise that if an Aboriginal party for the relevant part wishes to 10
take part in the study, it must give a written notice to the sponsor 11
that the party wishes to take part in the study; and 12
(g) state the notice day (proposed study) for the study, and advise the 13
time by which the sponsor must be given the written notice that 14
the party wishes to take part in the study; and 15
(h) advise that an Aboriginal party might not be endorsed to take part 16
in the study if it does not give the sponsor the written notice 17
within the required time. 18
(6) For subsection (5)(g), the time the sponsor advises as being the time 19
by which the sponsor must be given the written notice that the party wishes 20
to take part in the study must be-- 21
(a) the end of 30 days after the notice day (proposed study) for the 22
study; or 23
(b) a later time decided by the sponsor. 24
62 Aboriginal cultural heritage body response to written notice and 25
endorsement for study 26
(1) An Aboriginal cultural heritage body given the written notice 27
(proposed study) relating to a part of the study area may respond by giving 28
a written notice to the sponsor, within the time required under the written 29
notice (proposed study), advising the sponsor of the name and contact 30
details of each Aboriginal party for the part of the area, including the 31
party's address for service. 32
(2) If the sponsor receives a response from an Aboriginal cultural 33
heritage body under subsection (1) within the time required under the 34
written notice (proposed study), the sponsor must endorse each Aboriginal 35
party identified in the response to take part in the cultural heritage study. 36
s 63 42 s 65
Aboriginal Cultural Heritage Bill 2003
63 Aboriginal party response to written notice and endorsement for 1
study 2
(1) An Aboriginal party given the written notice (proposed study) 3
relating to a part of the study area may respond by giving a written notice 4
to the sponsor, within the time required under the written notice (proposed 5
study), that the Aboriginal party wishes to take part in the cultural heritage 6
study. 7
(2) If the sponsor receives a response from an Aboriginal party under 8
subsection (1) within the time required under the written notice (proposed 9
study), the sponsor must endorse the Aboriginal party to take part in the 10
cultural heritage study. 11
64 Aboriginal party response to public notice and endorsement for 12
study 13
(1) An Aboriginal party to which a public notice (proposed study) is 14
directed may respond by giving a written notice to the sponsor, within the 15
time required under the public notice (proposed study), that the Aboriginal 16
party wishes to take part in the cultural heritage study. 17
(2) If the sponsor receives a response from an Aboriginal party under 18
subsection (1) within the time required under the public notice (proposed 19
study), the sponsor must endorse the Aboriginal party to take part in the 20
cultural heritage study. 21
65 Endorsement for study in absence of response 22
(1) The sponsor is not required to endorse an Aboriginal party for the 23
study area to take part in the cultural heritage study if a response provided 24
for under this part has not been given to the sponsor, or has not been given 25
to the sponsor within the required time. 26
(2) However, the sponsor may endorse an Aboriginal party for the study 27
area to take part in the cultural heritage study even though the sponsor is 28
not required to endorse the party. 29
s 66 43 s 68
Aboriginal Cultural Heritage Bill 2003
Division 3--Carrying out cultural heritage study 1
66 Role of endorsed party 2
(1) An endorsed party for the cultural heritage study has the role of-- 3
(a) in particular, assessing the level of significance of areas and 4
objects included in the study area that are or appear to be 5
significant Aboriginal areas and significant Aboriginal objects; 6
and 7
(b) generally, consulting with the sponsor about the carrying out of 8
the cultural heritage study, and giving help and advice directed at 9
maximising the quality and authority of the study. 10
(2) The endorsed party's role under subsection (1)(b) may be performed 11
on the party's behalf by a nominee. 12
67 Role of sponsor 13
The role of the sponsor for the cultural heritage study is to carry out the 14
study-- 15
(a) in consultation with the endorsed parties for the study; and 16
(b) in a way directed at maximising the quality and authority of the 17
study. 18
68 Engagement of cultural heritage assessors 19
(1) The sponsor may engage persons as cultural heritage assessors for 20
the cultural heritage study. 21
(2) An endorsed party for the cultural heritage study may ask the sponsor 22
to engage a cultural heritage assessor for the study for a particular purpose. 23
(3) The sponsor must comply with any reasonable request of an endorsed 24
party under subsection (2). 25
(4) However, the sponsor may engage a person as a cultural heritage 26
assessor for the cultural heritage study only if the sponsor is satisfied the 27
person is-- 28
(a) an Aboriginal person for the study area; or 29
(b) an appropriately qualified person in a discipline directly relevant 30
to the study; or 31
s 69 44 s 70
Aboriginal Cultural Heritage Bill 2003
1
Examples of disciplines that would ordinarily be expected to be directly
2
relevant--
3
anthropology, archaeology, history
(c) another person who has particular knowledge or experience 4
making the person suitable for engagement as a cultural heritage 5
assessor. 6
(5) In this section-- 7
"Aboriginal person for the study area" means an Aboriginal person who 8
has particular knowledge about traditions, observances, customs or 9
beliefs associated with the study area, and who-- 10
(a) has responsibility under Aboriginal tradition for some or all of 11
the study area, or for significant Aboriginal objects located or 12
originating in the study area; or 13
(b) is a member of a family or clan group recognised as having 14
responsibility under Aboriginal tradition for some or all of the 15
study area, or for significant Aboriginal objects located or 16
originating in the study area. 17
69 Role of cultural heritage assessors 18
(1) A cultural heritage assessor for the cultural heritage study has the 19
role of giving help and advice directed at maximising the quality and 20
authority of the cultural heritage study. 21
(2) The cultural heritage assessor may give the help and advice only to 22
the extent agreed to by the sponsor. 23
70 Consultation supporting cultural heritage study 24
(1) The sponsor and each endorsed party for the cultural heritage study 25
must take reasonable steps to consult with each other about carrying out the 26
study. 27
(2) Without limiting subsection (1), the sponsor and an endorsed party 28
must consult with each other on any of the following if the sponsor or 29
endorsed party asks for the consultation-- 30
(a) timing of the cultural heritage study generally and of particular 31
stages of the study; 32
(b) access to particular areas; 33
s 71 45 s 72
Aboriginal Cultural Heritage Bill 2003
(c) particular methods of assessment activity; 1
(d) choosing persons to be engaged as cultural heritage assessors; 2
(e) the reasonable requirements the sponsor may have of the 3
endorsed party, or the endorsed party may have of the sponsor, 4
for the carrying out of the study. 5
(3) The sponsor must also consult with the owner or occupier of land 6
about obtaining access to the land if the access is reasonably required for 7
carrying out the study. 8
Division 4--Recording by chief executive 9
71 Giving of cultural heritage study to chief executive for recording 10
(1) The sponsor may give the cultural heritage study to the chief 11
executive to record its findings in the register when the sponsor is satisfied 12
that-- 13
(a) the study has been completed to the extent that is reasonably 14
practicable in the circumstances; and 15
(b) the study's findings are in order for recording in the register. 16
(2) The chief executive may, under this part-- 17
(a) record the findings of the study in the register; or 18
(b) refuse to record the findings of the study in the register. 19
(3) Subsection (2) does not authorise the chief executive to assume the 20
role of an endorsed party for the study for assessing the level of 21
significance of areas and objects included in the study area that are or 22
appear to be significant Aboriginal areas and significant Aboriginal objects. 23
72 Consideration of cultural heritage study before recording 24
(1) In considering whether to record the findings of the cultural heritage 25
study, the chief executive-- 26
(a) must have regard to the results and nature of consultation that has 27
happened for the purposes of the study between the sponsor and 28
endorsed parties; and 29
(b) may seek expert advice about the study from any appropriate 30
source; and 31
s 73 46 s 73
Aboriginal Cultural Heritage Bill 2003
(c) may consult with any of the following about the study-- 1
(i) endorsed parties for the study; 2
(ii) cultural heritage assessors for the study; 3
(iii) owners and occupiers of land included in the study area; 4
(iv) land users of land included in the study area; 5
(v) local governments whose local government areas include a 6
part of the study area. 7
(2) Without limiting subsection (1)(b) and (c), expert advice and 8
consultation may be about the soundness and viability of recommendations 9
included in the cultural heritage study. 10
73 Requirements for recording cultural heritage study 11
(1) To record the findings of the cultural heritage study in the register, 12
the chief executive must be satisfied that-- 13
(a) the sponsor has complied with the procedures and other 14
requirements stated in this part for the carrying out of the cultural 15
heritage study; and 16
(b) the findings and other information included in the cultural 17
heritage study, including the study's recommendations, are 18
consistent with authoritative anthropological, biogeographical, 19
historical and archaeological information about the study area; 20
and 21
(c) the cultural heritage study includes the information and other 22
material needed for recording the study's findings under part 5, 23
division 2; and 24
(d) the cultural heritage study also includes the following-- 25
(i) an explanation of how lawful access to the study area was 26
achieved for carrying out the study, including details of any 27
law, or of any oral or written authority given by an owner or 28
occupier of land in the study area, authorising access to the 29
land; 30
(ii) a summarising statement about the existence of Aboriginal 31
cultural heritage in the study area; 32
(iii) documented evidence about whether recommendations 33
included in the study for future management of Aboriginal 34
s 74 47 s 74
Aboriginal Cultural Heritage Bill 2003
cultural heritage have been agreed with affected land 1
owners and occupiers; 2
(iv) a description of assessment activities carried out for the 3
study; 4
(v) the signature of each endorsed party for the study, or the 5
party's nominee, who is stated in the study to be in support 6
of information and other matters in the study, and of the 7
recording of some or all of the study's findings in the 8
register; 9
(vi) the extent to which any endorsed party for the study does 10
not agree with the recording of the study's findings in the 11
register; 12
(vii) details of each endorsed party for the study who did not in 13
fact take part in the study. 14
(2) If the chief executive is satisfied under subsection (1), the chief 15
executive must record the findings of the cultural heritage study in the 16
register. 17
74 Recording or refusing to record findings of cultural heritage study 18
(1) When the chief executive records, or refuses to record, the findings of 19
the cultural heritage study in the register, the chief executive must give 20
written notice of the recording, or refusal to record, to-- 21
(a) the sponsor; and 22
(b) each person who is an owner or occupier of a part of the study 23
area; and 24
(c) each local government whose local government area includes a 25
part of the study area; and 26
(d) each endorsed party for the study; and 27
(e) each Aboriginal cultural heritage body for a part of the study 28
area. 29
(2) The recording of findings in the register is not ineffective only 30
because-- 31
(a) it is open to a person under division 5 to object to the recording 32
of the findings; or 33
s 75 48 s 76
Aboriginal Cultural Heritage Bill 2003
(b) a person entitled to a written notice under subsection (1) does not 1
receive the notice. 2
(3) If the chief executive refuses to record the findings of the cultural 3
heritage study in the register, the chief executive must include in each 4
written notice given under subsection (1) a statement of the chief 5
executive's reasons for refusing to record the findings. 6
Division 5--Objections, hearing and recommendation 7
75 Definitions for div 5 8
In this division-- 9
"appeal period", for a recording of the findings of the cultural heritage 10
study in the register, or for a refusal to record the findings of the 11
cultural heritage study in the register, means the 30 days immediately 12
after the day the chief executive gives the written notice notifying the 13
recording or the refusal to record. 14
"party", to an objection to a recording of the findings of the cultural 15
heritage study in the register, or a refusal to record the findings of the 16
cultural heritage study in the register, means each of the following-- 17
(a) the person who filed the objection with the tribunal; 18
(b) each other person who would have been entitled to object to the 19
tribunal to the recording or the refusal; 20
(c) the chief executive. 21
76 Objection to refusal to record findings 22
(1) A person may object to the tribunal to-- 23
(a) the chief executive's recording in the register of the findings of 24
the cultural heritage study; or 25
(b) the chief executive's refusal to record in the register the findings 26
of the cultural heritage study. 27
(2) However, to object, the person (the "objector") must be-- 28
(a) the sponsor for the study; or 29
(b) an endorsed party for the study; or 30
s 77 49 s 77
Aboriginal Cultural Heritage Bill 2003
(c) a person who is an owner or occupier of a part of the study area; 1
or 2
(d) a local government whose local government area includes a part 3
of the study area. 4
(3) The objector must file the objection with the tribunal within the 5
appeal period. 6
(4) The objector must, in filing the objection with the tribunal, identify 7
for the tribunal the names and contact details of all other persons who the 8
objector understands to be parties to the objection. 9
(5) As soon as practicable after receiving the objection from the objector, 10
the tribunal must-- 11
(a) take all reasonable steps to identify all other parties to the 12
objection; and 13
(b) advise them of the objection. 14
(6) The chief executive must give the tribunal all the help the chief 15
executive can reasonably give to identify the parties to the objection. 16
(7) The tribunal must take all reasonable steps to keep all parties to the 17
objection informed about when the hearing of the objection is to be held. 18
77 Tribunal's hearing 19
(1) The tribunal must hold a hearing of the objection. 20
(2) Despite anything in the Land and Resources Tribunal Act 1999, the 21
tribunal must be constituted for the hearing, as directed by the president of 22
the tribunal, by-- 23
(a) a presiding member of the tribunal; or 24
(b) a presiding member of the tribunal assisted by a single 25
non-presiding member of the tribunal; or 26
(c) a referee non-presiding member of the tribunal who has been 27
appointed as an indigenous issues referee. 28
(3) All parties to the objection have the right to be heard at the hearing. 29
s 78 50 s 78
Aboriginal Cultural Heritage Bill 2003
78 Tribunal's recommendation to Minister 1
(1) After the hearing has been completed, the tribunal must recommend 2
to the Minister-- 3
(a) if the objection was to a recording of the findings of the cultural 4
heritage study in the register-- 5
(i) that the Minister confirm the recording of the findings of the 6
study in the register; or 7
(ii) that the Minister take the findings of the study out of the 8
register; or 9
(iii) that the Minister amend the findings recorded in the register 10
in accordance with details included in the recommendation; 11
or 12
(b) if the objection was to a refusal to record the findings of the 13
cultural heritage study in the register-- 14
(i) that the Minister confirm the refusal to record the findings 15
of the study in the register; or 16
(ii) that the Minister record the findings of the study in the 17
register; or 18
(iii) that the Minister record the findings of the study in the 19
register after amendment of the findings in accordance with 20
details included in the recommendation. 21
(2) Subsection (1) does not stop the tribunal, before making its 22
recommendation to the Minister, from helping the parties to negotiate 23
changes to the cultural heritage study. 24
(3) For making a recommendation to the Minister about the cultural 25
heritage study, the tribunal-- 26
(a) must have regard to the matters about which the chief executive 27
was required to be satisfied before recording the findings of the 28
study; and 29
(b) may include in its considerations the nature and extent of 30
consultation held in carrying out the study. 31
(4) Subsection (1) does not authorise the tribunal to assume the role of 32
an endorsed party for the study for assessing the level of significance of 33
areas and objects included in the study area that are or appear to be 34
significant Aboriginal areas and significant Aboriginal objects. 35
s 79 51 s 79
Aboriginal Cultural Heritage Bill 2003
Division 6--Recording by Minister 1
79 Recording or refusing to record findings of cultural heritage study 2
(1) On receiving a recommendation from the tribunal under division 5, 3
the Minister may-- 4
(a) if the objection was to a recording of the findings of the cultural 5
heritage study in the register-- 6
(i) confirm the recording of the findings; or 7
(ii) take the findings of the study out of the register; or 8
(iii) amend the findings recorded in the register in the way the 9
Minister considers appropriate; or 10
(b) if the objection was to a refusal to record the findings of the 11
cultural heritage study in the register-- 12
(i) confirm the refusal to record the findings; or 13
(ii) record the findings; or 14
(iii) record the findings after amendment in the way the Minister 15
considers appropriate. 16
(2) However, in deciding what action to take, the Minister must have 17
regard to-- 18
(a) the tribunal's recommendation; and 19
(b) the matters about which the chief executive was required to be 20
satisfied before recording the findings of the study. 21
(3) Subsection (1) does not authorise the Minister to assume the role of 22
an endorsed party for the study for assessing the level of significance of 23
areas and objects included in the study area that are or appear to be 24
significant Aboriginal areas and significant Aboriginal objects. 25
s 80 52 s 84
Aboriginal Cultural Heritage Bill 2003
PART 7--CULTURAL HERITAGE MANAGEMENT 1
PLANS 2
Division 1--Introduction 3
80 When cultural heritage management plan is or may be 4
required--div 2 5
Division 2 provides for when a cultural heritage management plan is or 6
may be required to be developed and approved for a project. 7
81 Requirements for developing cultural heritage management plan 8
and having it approved--divs 3 to 7 9
Divisions 3 to 7 state the requirements for developing a cultural heritage 10
management plan for a project and for having the plan approved for the 11
project. 12
82 Responsibility for developing cultural heritage management plan 13
Any person, including the Minister, may be the sponsor for a cultural 14
heritage management plan. 15
83 Voluntary development of cultural heritage management plan 16
A person may, under this Act, develop and gain approval of a cultural 17
heritage management plan even though there is no legal requirement for the 18
plan. 19
20
Example--
21
A person may seek to have an approved cultural heritage management plan in place to
22
help the person avoid breaching the cultural heritage duty of care.
84 Approved cultural heritage management plan may not require 23
particular action 24
In appropriate circumstances, a cultural heritage management plan 25
developed and approved under this Act for a project may be to the effect 26
that there are, for the project, no particular requirements for managing the 27
impact of activities on Aboriginal cultural heritage. 28
s 85 53 s 87
Aboriginal Cultural Heritage Bill 2003
85 Cultural heritage management plan guidelines 1
(1) The Minister may by gazette notice notify guidelines to help people 2
in choosing suitable methodologies for developing cultural heritage 3
management plans. 4
(2) However, a failure to conform to the guidelines is not a ground for 5
refusing to approve a cultural heritage management plan. 6
(3) Before notifying the guidelines, the Minister may consult with the 7
following-- 8
(a) Aboriginal groups; 9
(b) industry groups; 10
(c) local governments; 11
(d) other persons the Minister considers appropriate. 12
Division 2--Protection of cultural heritage under cultural 13
heritage management plans 14
86 Application of div 2 15
This division does not apply to a project to the extent the project is the 16
subject of-- 17
(a) an existing agreement; or 18
(b) a native title agreement, whenever entered into, unless Aboriginal 19
cultural heritage is expressly excluded from being subject to the 20
agreement. 21
87 Cultural heritage management plan needed if EIS needed 22
(1) This section applies to a project if-- 23
(a) under an Act other than this Act, a lease, licence, permit, 24
approval or other authority is required for the project; and 25
(b) under the operation of the Act under which the authority is 26
required, or under the operation of another Act, an EIS is 27
required for the project. 28
(2) The entity authorised to give the authority must not give it unless-- 29
s 88 54 s 88
Aboriginal Cultural Heritage Bill 2003
(a) a cultural heritage management plan for the project has been 1
developed and approved under this Act; or 2
(b) the authority is given subject to conditions to ensure that no 3
excavation, construction or other activity that may cause harm to 4
Aboriginal cultural heritage takes place for the project without 5
the development and approval of a cultural heritage management 6
plan for the project. 7
(3) The entity authorised to give the authority has power to impose 8
conditions mentioned in subsection (2)(b). 9
(4) The plan area for a cultural heritage management plan developed and 10
approved for subsection (2) may be limited to the part of the project area 11
that is the subject of the EIS. 12
88 Cultural heritage management plan may be needed if other 13
environmental authority needed 14
(1) This section applies to a project if-- 15
(a) under an Act other than this Act-- 16
(i) a lease, licence, permit, approval or other authority is 17
required for the project; and 18
(ii) under the operation of the Act under which the authority is 19
required, or under the operation of another Act, an 20
environmental assessment is required for the project; and 21
(b) the project is a project, or a project of a type, prescribed under a 22
regulation for this section. 23
(2) The entity authorised to give the authority must not give the authority 24
unless-- 25
(a) a cultural heritage management plan for the project has been 26
developed and approved under this Act; or 27
(b) the authority is given subject to conditions to ensure that no 28
excavation or construction takes place for the project without the 29
development and approval of a cultural heritage management 30
plan for the project. 31
(3) The entity authorised to give the authority has power to impose 32
conditions mentioned in subsection (2)(b). 33
s 89 55 s 90
Aboriginal Cultural Heritage Bill 2003
(4) The plan area for a cultural heritage management plan approved for 1
subsection (2) may be limited to the part of the project area that is the 2
subject of the environmental assessment. 3
(5) The Minister may recommend the making of a regulation under 4
subsection (1)(b) only if the Minister is satisfied the project or type of 5
project will have a significant impact on Aboriginal cultural heritage. 6
(6) In this section-- 7
"environmental assessment" means a form of environmental assessment 8
or planning, not including an EIS but including, for example, an EMP 9
submission under the Environmental Protection Act 1994. 10
89 Cultural heritage management plan needed under IPA 11
(1) This section applies to a project if, under IPA-- 12
(a) a development application is made relating to the project; and 13
(b) the chief executive is a concurrence agency for the application. 14
(2) Without limiting IPA, the chief executive may-- 15
(a) require, as part of an information request under IPA, that the 16
applicant ensure a cultural heritage management plan for the 17
project is developed and approved under this Act; or 18
(b) require to be imposed, as a condition of approval of the 19
development application, a condition that a cultural heritage 20
management plan for the project be developed and approved 21
under this Act. 22
Division 3--Preparing to develop cultural heritage management plan 23
90 Reference to part of plan area may be taken to include reference 24
to whole 25
For this division, a reference relating to a part of a plan area may, if it is 26
convenient to do so, be taken to include a reference to the whole of the plan 27
area. 28
s 91 56 s 92
Aboriginal Cultural Heritage Bill 2003
91 Giving of written notice (proposed plan) 1
(1) The sponsor for a cultural heritage management plan must give a 2
written notice ("written notice (proposed plan)") to-- 3
(a) the chief executive; and 4
(b) each person who is an owner or occupier of a part of the plan 5
area; and 6
(c) if, for a part of the plan area, there is no Aboriginal cultural 7
heritage body--each Aboriginal party that is a native title party 8
for the part of the plan area; and 9
(d) each entity that is an Aboriginal cultural heritage body for a part 10
of the plan area; and 11
(e) if, for a part of the plan area, there is no Aboriginal party that is a 12
native title party, and there is also no Aboriginal cultural heritage 13
body--each entity that is a representative body for the part of the 14
plan area. 15
(2) The written notice (proposed plan) must, to the greatest practicable 16
extent, be given simultaneously to each person to whom it is required to be 17
given. 18
(3) However, the person required to be notified under subsection (1)(b) 19
may be given the notice simultaneously with another notice given to the 20
person in relation to the project under another Act. 21
(4) If, under subsection (1)(c), the written notice is required to be given 22
to a native title party for a part of the plan area, the written notice may be 23
sent to the address for service entered for the native title party in-- 24
(a) the register; or 25
(b) if no address for service is entered in the register, but an address 26
for service is entered in the National Native Title Register or the 27
Register of Native Title Claims--the National Native Title 28
Register or the Register of Native Title Claims. 29
92 Basic information requirements for written notice (proposed 30
plan) 31
The written notice (proposed plan) must comply with the following 32
requirements (the "basic information requirements" for the notice)-- 33
s 93 57 s 93
Aboriginal Cultural Heritage Bill 2003
(a) it must advise the sponsor's name and contact details, including 1
the sponsor's address for service; 2
(b) it must identify the project; 3
(c) it must advise that the sponsor intends to develop the cultural 4
heritage management plan for the project; 5
(d) it must describe the plan area for the plan and identify its 6
location, including, to the extent appropriate and practicable in 7
the circumstances, by describing the plan area's location in 8
relation to the nearest town, using bearings and approximate 9
distances. 10
93 Additional requirements for notice to Aboriginal cultural heritage 11
body 12
(1) If the written notice (proposed plan) is given to an Aboriginal cultural 13
heritage body, the notice must, as well as complying with the basic 14
information requirements for the notice-- 15
(a) advise the body that if it wishes to identify an Aboriginal party to 16
take part in developing the cultural heritage management plan, it 17
must give a written notice to the sponsor identifying the party 18
and giving the party's contact details; and 19
(b) state the notice day (proposed plan) for the plan, and advise the 20
body of the time by which the sponsor must be given the written 21
notice identifying an Aboriginal party to take part in developing 22
the plan; and 23
(c) advise the body that an Aboriginal party identified by the body 24
might not be endorsed to take part in developing the plan if the 25
body does not give the sponsor the written notice within the 26
required time. 27
(2) For subsection (1)(b), the time the sponsor advises as being the time 28
by which the sponsor must be given the written notice identifying an 29
Aboriginal party to take part in developing the plan must be-- 30
(a) the end of 30 days after the notice day (proposed plan) for the 31
plan; or 32
(b) a later time decided by the sponsor. 33
s 94 58 s 96
Aboriginal Cultural Heritage Bill 2003
94 Additional requirements for notice to Aboriginal party 1
(1) If the written notice (proposed plan) is given to an Aboriginal party, 2
the notice must, as well as complying with the basic information 3
requirements for the notice-- 4
(a) advise the party that if it wishes to take part in developing the 5
cultural heritage management plan, it must give a written notice 6
to the sponsor that the party wishes to take part in developing the 7
plan; and 8
(b) state the notice day (proposed plan) for the plan, and advise the 9
party of the time by which the sponsor must be given the written 10
notice that the party wishes to take part in developing the plan; 11
and 12
(c) advise the party that it might not be endorsed to take part in 13
developing the plan if it does not give the sponsor the written 14
notice within the required time. 15
(2) For subsection (1)(b), the time the sponsor advises as being the time 16
by which the sponsor must be given the written notice that the party wishes 17
to take part in developing the plan must be-- 18
(a) the end of 30 days after the notice day (proposed plan) for the 19
plan; or 20
(b) a later time decided by the sponsor. 21
95 Additional requirements for notice to representative body 22
If the written notice (proposed plan) is given to a representative body, the 23
notice must, as well as complying with the basic information requirements 24
for the notice, draw the attention of the representative body to the public 25
notice (proposed plan) published or to be published under this division. 26
96 Giving of public notice (proposed plan) 27
(1) This section applies if, for a part of the plan area (the "relevant 28
part")-- 29
(a) there is no Aboriginal cultural heritage body; and 30
(b) there is no Aboriginal party that is a native title party. 31
s 96 59 s 96
Aboriginal Cultural Heritage Bill 2003
(2) The sponsor must ensure that a public notice ("public notice 1
(proposed plan)") is published in a newspaper circulating generally in the 2
relevant part. 3
(3) If there is an approved form for the public notice (proposed plan), the 4
notice must be in the approved form. 5
(4) The public notice (proposed plan) must be published as close as 6
practicable to the time the written notice (proposed plan) is given. 7
(5) The public notice (proposed plan) must-- 8
(a) be directed to Aboriginal parties for the relevant part; and 9
(b) advise the sponsor's name and contact details, including the 10
sponsor's address for service; and 11
(c) identify the project; and 12
(d) advise that the sponsor intends to develop the cultural heritage 13
management plan for the project; and 14
(e) describe the plan area for the plan and identify its location, 15
including, to the extent appropriate and practicable in the 16
circumstances, by describing the plan area's location in relation 17
to the nearest town, using bearings and approximate distances; 18
and 19
(f) describe the relevant part, if it is less extensive than the plan area; 20
and 21
(g) advise that if an Aboriginal party for the relevant part wishes to 22
take part in developing the plan, it must give a written notice to 23
the sponsor that the party wishes to take part in developing the 24
plan; and 25
(h) state the notice day (proposed plan) for the plan, and advise the 26
time by which the sponsor must be given the written notice that 27
the party wishes to take part in developing the plan; and 28
(i) advise that an Aboriginal party might not be endorsed to take part 29
in developing the plan if it does not give the sponsor the written 30
notice within the required time. 31
(6) For subsection (5)(h), the time the sponsor advises as being the time 32
by which the sponsor must be given the written notice that the party wishes 33
to take part in developing the plan must be-- 34
s 97 60 s 99
Aboriginal Cultural Heritage Bill 2003
(a) the end of 30 days after the notice day (proposed plan) for the 1
plan; or 2
(b) a later time decided by the sponsor. 3
97 Aboriginal cultural heritage body response to written notice 4
and endorsement for plan 5
(1) An Aboriginal cultural heritage body given the written notice 6
(proposed plan) relating to a part of the plan area may respond by giving a 7
written notice to the sponsor, within the time required under the written 8
notice (proposed plan), advising the sponsor of the name and contact 9
details of each Aboriginal party for the part, including the party's address 10
for service. 11
(2) If the sponsor receives a response under subsection (1) within the 12
time required under the written notice (proposed plan), the sponsor must 13
endorse each Aboriginal party identified in the response to take part in 14
developing the cultural heritage management plan. 15
98 Aboriginal party response to written notice and endorsement for 16
plan 17
(1) An Aboriginal party given the written notice (proposed plan) relating 18
to a part of the plan area may respond by giving a written notice to the 19
sponsor, within the time required under the written notice (proposed plan), 20
that the Aboriginal party wishes to take part in developing the cultural 21
heritage management plan. 22
(2) If the sponsor receives a response from an Aboriginal party under 23
subsection (1) within the time required under the written notice (proposed 24
plan), the sponsor must endorse the Aboriginal party to take part in 25
developing the plan. 26
99 Aboriginal party response to public notice and endorsement for 27
plan 28
(1) An Aboriginal party to which a public notice (proposed plan) is 29
directed may respond by giving a written notice to the sponsor, within the 30
time required under the public notice (proposed plan), that the Aboriginal 31
party wishes to take part in developing the cultural heritage management 32
plan. 33
s 100 61 s 100
Aboriginal Cultural Heritage Bill 2003
(2) If the sponsor receives a response from an Aboriginal party under 1
subsection (1) within the time required under the public notice (proposed 2
plan), the sponsor must endorse the Aboriginal party to take part in 3
developing the plan. 4
100 Becoming Aboriginal party after written notice (proposed plan) is 5
given 6
(1) This section applies if, after the giving of the written notice 7
(proposed plan), but before the notice day (proposed plan) for the cultural 8
heritage management plan, an entity becomes an Aboriginal party for a part 9
of the plan area because it becomes a native title party for the part of the 10
plan area. 11
(2) The sponsor must give the Aboriginal party a written notice that-- 12
(a) includes a copy of the written notice (proposed plan) it would 13
have been given if it had been an Aboriginal party when the 14
written notice (proposed plan) was first given under this division; 15
and 16
(b) advises the time by which, despite anything in the written notice 17
(proposed plan), the sponsor must be given the written notice that 18
the party wishes to take part in developing the plan. 19
(3) For subsection (2)(b), the time the sponsor advises as being the time 20
by which the sponsor must be given the written notice that the party wishes 21
to take part in developing the plan must be-- 22
(a) the end of 37 days after the notice day (proposed plan) for the 23
plan; or 24
(b) a later time decided by the sponsor. 25
(4) An Aboriginal party given a written notice under subsection (2) may 26
respond by giving a written notice to the sponsor, within the time advised 27
under subsection (2)(b), that the party wishes to take part in developing the 28
plan. 29
(5) If the sponsor receives a notice from an Aboriginal party under 30
subsection (4) within the time required under subsection (2)(b), the sponsor 31
must endorse the Aboriginal party to take part in developing the plan. 32
(6) This section applies whether or not a public notice (proposed plan) 33
was published. 34
s 101 62 s 103
Aboriginal Cultural Heritage Bill 2003
101 Endorsement for plan in absence of response 1
(1) The sponsor is not required to endorse an Aboriginal party for the 2
plan area to take part in developing the cultural heritage management plan 3
if a response provided for under this part has not been given to the sponsor, 4
or has not been given to the sponsor within the required time. 5
(2) However, the sponsor may endorse an Aboriginal party for the plan 6
area to take part in developing the cultural heritage management plan even 7
though the sponsor is not required to endorse the party. 8
Division 4--Development of cultural heritage management plan 9
102 Role of endorsed party 10
(1) An endorsed party for the cultural heritage management plan has the 11
role of-- 12
(a) seeking agreement with the sponsor for the plan about how the 13
project is to be managed-- 14
(i) to avoid harm to Aboriginal cultural heritage; and 15
(ii) to the extent that harm can not reasonably be avoided, to 16
minimise harm to Aboriginal cultural heritage; and 17
(b) consulting and negotiating with the sponsor, and with other 18
endorsed parties for the plan, about issues needing to be 19
addressed in the development of the plan, and about the final 20
content of the plan; and 21
(c) generally, giving help and advice in a way directed at 22
maximising the suitability of the plan for the effective protection 23
and conservation of Aboriginal cultural heritage. 24
(2) The endorsed party's role may be performed on the party's behalf by 25
a nominee. 26
103 Role of sponsor 27
The sponsor for the cultural heritage management plan has the role of-- 28
(a) seeking agreement with the endorsed parties for the plan about 29
how the project is to be managed-- 30
(i) to avoid harm to Aboriginal cultural heritage; and 31
s 104 63 s 104
Aboriginal Cultural Heritage Bill 2003
(ii) to the extent that harm can not reasonably be avoided, to 1
minimise harm to Aboriginal cultural heritage; and 2
(b) developing the plan-- 3
(i) in consultation and negotiation with the endorsed parties for 4
the plan; and 5
(ii) in a way directed at maximising the suitability of the plan 6
for the effective protection and conservation of Aboriginal 7
cultural heritage. 8
104 Consultation 9
(1) Subjects for consultation may include, but are not limited to, the 10
following-- 11
(a) the nature and extent of known Aboriginal cultural heritage in the 12
plan area; 13
(b) the reasonable requirements for the carrying out of a site survey 14
of Aboriginal cultural heritage in the plan area, and the results of 15
the survey if it is carried out; 16
(c) reasonable travel and accommodation requirements for endorsed 17
parties; 18
(d) workplace health and safety issues arising out of any site survey 19
or investigation carried out in developing the plan; 20
(e) the number of endorsed parties, or nominees of endorsed parties, 21
who can reasonably be involved in any site survey. 22
(2) Consultation may include reasonable use of any of the following 23
ways of consulting-- 24
(a) face to face meetings; 25
(b) telephone conferences; 26
(c) use of the internet; 27
(d) exchanges of correspondence. 28
(3) This division does not require a survey of Aboriginal cultural 29
heritage carried out for the purposes of consultation to be carried out as a 30
cultural heritage study under part 6. 31
s 105 64 s 106
Aboriginal Cultural Heritage Bill 2003
105 Reaching agreement 1
(1) The sponsor and each endorsed party for the cultural heritage 2
management plan must negotiate, and make every reasonable effort to 3
reach agreement, about the provisions of the plan. 4
(2) Without limiting how the plan may provide for the managing of 5
project activities in relation to their impact on Aboriginal cultural heritage, 6
the plan may provide for the following-- 7
(a) when particular project activities are to happen; 8
(b) when particular activities under the plan are to happen; 9
(c) arrangements for access to land for carrying out activities under 10
the plan, including details of arrangements entered into with 11
owners or occupiers of land; 12
(d) identification of known Aboriginal cultural heritage, noting, if 13
appropriate, any reference to the cultural heritage in the database 14
or register; 15
(e) the way Aboriginal cultural heritage is to be assessed; 16
(f) whether Aboriginal cultural heritage is to be damaged, relocated 17
or taken away, and how this is to be managed; 18
(g) contingency planning for disputes, unforeseen delays and other 19
foreseeable and unforeseeable obstacles to carrying out activities 20
under the plan; 21
(h) other matters reasonably necessary for successfully carrying out 22
activities under the plan. 23
106 Mediation 24
(1) This section applies if at least 28 days of the consultation period for 25
the cultural heritage management plan have elapsed, and it appears to a 26
consultation party for the plan that-- 27
(a) a dispute has arisen between 2 or more consultation parties for 28
the plan; and 29
(b) the dispute is substantially delaying the development of the plan. 30
(2) The consultation party may ask the tribunal to provide mediation of 31
the dispute. 32
s 107 65 s 108
Aboriginal Cultural Heritage Bill 2003
(3) If in the opinion of a presiding member of the tribunal the dispute is 1
suitable for mediation the tribunal may provide the mediation. 2
(4) Referral of the dispute to mediation may extend the consultation 3
period only to the extent agreed to in writing by all the consultation parties. 4
Division 5--Approval by chief executive 5
107 Chief executive approval of plan 6
(1) Whether or not the consultation period for the cultural heritage 7
management plan has ended, the sponsor may give the plan, as developed 8
under this part, to the chief executive for the chief executive's approval if-- 9
(a) there is no endorsed party for the plan; or 10
(b) there is at least 1 endorsed party for the plan, and all consultation 11
parties for the plan agree that the chief executive may approve 12
the plan. 13
(2) If the circumstance mentioned in subsection (1)(a) applies, the chief 14
executive must, under this part-- 15
(a) approve the plan; or 16
(b) refuse to approve the plan. 17
(3) If the circumstances mentioned in subsection (1)(b) apply, the chief 18
executive must approve the plan. 19
108 Consideration of plan before approval if no endorsed party 20
(1) This section applies if there is no endorsed party for the cultural 21
heritage management plan. 22
(2) To approve the plan, the chief executive must be satisfied the plan 23
makes enough provision for how the project is to be managed-- 24
(a) to avoid harm to Aboriginal cultural heritage; and 25
(b) to the extent that harm can not reasonably be avoided, to 26
minimise harm to Aboriginal cultural heritage. 27
(3) If the plan is not a cultural heritage management plan developed 28
voluntarily, the chief executive must also be satisfied the plan includes 29
agreement for effective alternate dispute resolution arrangements to deal 30
with issues that may arise in the operation of the plan. 31
s 109 66 s 110
Aboriginal Cultural Heritage Bill 2003
109 Approving or refusing to approve plan if no endorsed party 1
(1) This section also applies if there is no endorsed party for the cultural 2
heritage management plan. 3
(2) When the chief executive approves, or refuses to approve, the plan, 4
the chief executive must give written notice of the approval, or refusal to 5
approve, to the sponsor for the plan. 6
(3) The approval or refusal to approve is not ineffective only because the 7
sponsor does not receive the notice under subsection (2). 8
(4) If the chief executive refuses to approve the plan, the chief executive 9
must include in the written notice given under subsection (2) a written 10
statement of the chief executive's reasons for refusing to approve the plan. 11
(5) The chief executive is not required to accept, but may accept, for the 12
chief executive's further consideration, the plan in a form amended to take 13
account of the matters mentioned in the chief executive's statement of 14
reasons. 15
Division 6--Objection or referral, hearing and recommendation 16
110 Definitions for div 6 17
In this division-- 18
"appeal period", for a refusal to approve a cultural heritage management 19
plan for which there is no endorsed party, means the 30 days 20
immediately after the chief executive gives the sponsor the written 21
notice notifying the refusal. 22
"party"-- 23
(a) to an objection to a refusal to approve a cultural heritage 24
management plan for which there is no endorsed party--means 25
each of the following-- 26
(i) the sponsor; 27
(ii) the chief executive; or 28
(b) to a referral of a cultural heritage management plan to the 29
tribunal for approval--means each of the following-- 30
(i) each consultation party for the plan; 31
(ii) the chief executive. 32
s 111 67 s 113
Aboriginal Cultural Heritage Bill 2003
111 Objection to tribunal to refusal to approve agreed plan 1
(1) If there is no endorsed party for the cultural heritage management 2
plan, the sponsor for the plan may object, to the tribunal, to the chief 3
executive's refusal to approve the plan. 4
(2) The sponsor must file the objection with the tribunal within the 5
appeal period for the refusal. 6
112 Sponsor may refer plan to tribunal after unsuccessful mediation 7
(1) This section applies if-- 8
(a) under division 4, a consultation party asks the tribunal to provide 9
mediation of a dispute; and 10
(b) the mediation is not successful in resolving the dispute; and 11
(c) the mediator considers that resolution is unlikely before the end 12
of the consultation period. 13
(2) The mediator may authorise the sponsor to refer the plan to the 14
tribunal and ask the tribunal to approve the cultural heritage management 15
plan, even though the consultation period has not ended. 16
(3) If the sponsor does not refer the plan on the mediator's authority, the 17
sponsor is not prevented from acting under this division to refer the plan to 18
the tribunal. 19
113 Sponsor may refer plan to tribunal after failure to agree 20
(1) This section applies if-- 21
(a) there is at least 1 endorsed party for the cultural heritage 22
management plan; and 23
(b) the consultation period for the plan has ended; and 24
(c) all consultation parties have not agreed that the chief executive 25
may approve the plan. 26
(2) The sponsor for the plan may refer the plan to the tribunal and ask the 27
tribunal to approve the plan. 28
(3) The sponsor must ensure that a referral of the plan to the tribunal 29
happens within a reasonable time after the end of the consultation period 30
for the plan. 31
s 114 68 s 115
Aboriginal Cultural Heritage Bill 2003
114 Administrative details for objection or referral 1
(1) The sponsor must, in filing an objection or referral with the tribunal, 2
identify for the tribunal the names and contact details of all other parties to 3
the objection or referral. 4
(2) As soon as practicable after receiving the objection or referral from 5
the sponsor, the tribunal must advise all other parties of the objection or 6
referral. 7
(3) The tribunal must take all reasonable steps to keep all parties to the 8
objection or referral informed about when any hearing of the objection or 9
referral is to be held. 10
115 Substantive requirements for objection or referral 11
(1) The sponsor must, in filing an objection or referral with the tribunal, 12
give the tribunal a document that-- 13
(a) unless there is no endorsed party for the cultural heritage 14
management plan--outlines the nature and extent of the 15
consultation that happened in the consultation period for the 16
plan; and 17
(b) states why the sponsor believes the plan makes enough provision 18
for how the project is to be managed-- 19
(i) to avoid harm to Aboriginal cultural heritage; and 20
(ii) to the extent that harm can not reasonably be avoided, to 21
minimise harm to Aboriginal cultural heritage. 22
(2) The tribunal must-- 23
(a) give each other party to the objection or referral a copy of the 24
document given to the tribunal under subsection (1); and 25
(b) for a referral--invite each other party to the referral to make a 26
written submission to the tribunal about the plan and the 27
sponsor's submission on the plan. 28
(3) The tribunal is required to take account of a party's written 29
submission given on an invitation under subsection (2)(b) only if the 30
tribunal receives the submission within 30 days after the tribunal gives the 31
copy of the document to the party under subsection (2)(a). 32
s 116 69 s 117
Aboriginal Cultural Heritage Bill 2003
116 Tribunal's hearing 1
(1) The tribunal may hold, but is not required to hold, a hearing of an 2
objection or referral. 3
(2) If, for the hearing, the tribunal is constituted by a referee 4
non-presiding member of the tribunal who has been appointed as an 5
indigenous issues referee, the referee must not be a referee who provided 6
mediation under division 4. 7
(3) All parties to the objection or referral have the right to be heard at the 8
hearing. 9
(4) The tribunal may order mediation before the hearing if the tribunal 10
considers mediation may successfully resolve any dispute about the 11
cultural heritage management plan. 12
117 Tribunal's recommendation to Minister 13
(1) After the hearing has been completed, or, if no hearing is held, after 14
the tribunal has considered the sponsor's document and any submission 15
properly received by the tribunal, the tribunal must give its 16
recommendation about the cultural heritage management plan to the 17
Minister. 18
(2) The tribunal's recommendation must be-- 19
(a) that the Minister-- 20
(i) for an objection--confirm the chief executive's refusal to 21
approve the plan; or 22
(ii) for a referral--refuse to approve the plan; or 23
(b) that the Minister approve the plan; or 24
(c) that the Minister approve the plan after amendment of the plan in 25
accordance with details included in the recommendation. 26
(3) Subsection (2) does not stop the tribunal, before making its 27
recommendation to the Minister, from helping the parties to negotiate 28
changes to the plan. 29
(4) Subsections (5) and (6) apply only if there is at least 1 endorsed party 30
for the plan. 31
(5) If, before the tribunal makes a recommendation to the Minister, all 32
the consultation parties agree that the plan should be approved, the sponsor 33
may give the plan, as agreed to, to the chief executive. 34
s 118 70 s 118
Aboriginal Cultural Heritage Bill 2003
(6) The giving of the plan to the chief executive under subsection (4) is 1
taken to be a giving of the plan to the chief executive under division 5, in 2
the circumstances that there is at least 1 endorsed party for the plan, and all 3
consultation parties for the plan agree that the chief executive may approve 4
the plan. 5
118 Reaching the recommendation 6
(1) To recommend that the Minister approve the cultural heritage 7
management plan, or that the Minister approve the plan after amendment, 8
the tribunal must be satisfied the plan makes, or after suitable amendment 9
will make, enough provision for how the project is to be managed-- 10
(a) to avoid damage to Aboriginal cultural heritage; and 11
(b) to the extent that damage can not reasonably be avoided, to 12
minimise damage to Aboriginal cultural heritage. 13
(2) If the plan is not a cultural heritage management plan developed 14
voluntarily, the tribunal must also be satisfied the plan provides for 15
effective alternate dispute resolution arrangements to deal with issues that 16
may arise in the operation of the plan. 17
(3) The tribunal must also be satisfied that, for Aboriginal cultural 18
heritage that is to be or may be taken away when the plan is put into effect, 19
the plan makes enough provision about-- 20
(a) who is to become the owner of it; and 21
(b) who is to have the custody of it. 22
(4) For making its recommendation to the Minister about the plan, the 23
tribunal must include the following in its considerations-- 24
(a) the availability and quality of documented information about the 25
Aboriginal cultural heritage significance of the plan area; 26
(b) the nature of the impacts of the project; 27
(c) submissions made by the parties to the objection or referral, 28
including, if a hearing is held, oral submissions made at the 29
hearing; 30
(d) the nature and extent of past uses of the project area. 31
s 119 71 s 120
Aboriginal Cultural Heritage Bill 2003
119 General time requirement for making recommendation 1
(1) The tribunal must take all reasonable steps to make sure that its 2
recommendation about the cultural heritage management plan is given to 3
the Minister within 4 months after the objection or referral is filed with the 4
tribunal. 5
(2) If the recommendation is not made within the 4 months, the tribunal 6
must, as soon as practicable after the 4 months ends, give a written notice 7
to the Minister-- 8
(a) advising why the recommendation has not yet been made; and 9
(b) giving an estimate of when the recommendation is likely to be 10
made. 11
Division 7--Approval by Minister 12
120 Approving or refusing to approve plan 13
(1) On receiving a recommendation from the tribunal under division 6, 14
the Minister may-- 15
(a) for an objection--confirm the chief executive's refusal to 16
approve the cultural heritage management plan; or 17
(b) for a referral--refuse to approve the plan; or 18
(c) approve the plan; or 19
(d) approve the plan after amendment of the plan in accordance with 20
the Minister's direction. 21
(2) However, in deciding what action to take, the Minister must have 22
regard to-- 23
(a) the tribunal's recommendation; and 24
(b) the matters about which the chief executive was or would have 25
been required to be satisfied before approving the plan. 26
s 121 72 s 123
Aboriginal Cultural Heritage Bill 2003
PART 8--INVESTIGATION AND ENFORCEMENT 1
Division 1--Authorised officers 2
121 Appointment and qualifications 3
(1) The chief executive may appoint a public service employee as an 4
authorised officer. 5
(2) However, the chief executive may appoint a person as an authorised 6
officer only if the chief executive is satisfied the person is qualified for 7
appointment because the person has the necessary expertise or experience. 8
122 Appointment conditions and limit on powers 9
(1) An authorised officer holds office on any conditions stated in-- 10
(a) the authorised officer's instrument of appointment; or 11
(b) a signed notice given to the authorised officer; or 12
(c) a regulation. 13
(2) The instrument of appointment, a signed notice given to the 14
authorised officer or a regulation may limit the authorised officer's powers 15
under this Act. 16
(3) In this section-- 17
"signed notice" means a notice signed by the chief executive. 18
123 Issue of identity card 19
(1) The chief executive must issue an identity card to each authorised 20
officer. 21
(2) The identity card must-- 22
(a) contain a recent photo of the authorised officer; and 23
(b) contain a copy of the authorised officer's signature; and 24
(c) identify the person as an authorised officer under this Act; and 25
(d) state an expiry date for the card. 26
s 124 73 s 125
Aboriginal Cultural Heritage Bill 2003
(3) This section does not prevent the issue of a single identity card to a 1
person for this Act and other purposes. 2
124 Production or display of identity card 3
(1) In exercising a power under this Act in relation to a person, an 4
authorised officer must-- 5
(a) produce the authorised officer's identity card for the person's 6
inspection before exercising the power; or 7
(b) have the identity card displayed so it is clearly visible to the 8
person when exercising the power. 9
(2) However, if it is not practicable to comply with subsection (1), the 10
authorised officer must produce the identity card for the person's 11
inspection at the first reasonable opportunity. 12
(3) For subsection (1), an authorised officer does not exercise a power in 13
relation to a person only because the authorised officer, as authorised under 14
this Act, enters-- 15
(a) a public place when it is open to the public; or 16
(b) a place for the purpose of asking the occupier of the place for 17
consent to enter. 18
125 When authorised officer ceases to hold office 19
(1) An authorised officer ceases to hold office if any of the following 20
happens-- 21
(a) the term of office stated in a condition of office ends; 22
(b) under another condition of office, the authorised officer ceases to 23
hold office; 24
(c) the authorised officer's resignation takes effect. 25
(2) Subsection (1) does not limit the ways an authorised officer may 26
cease to hold office. 27
(3) In this section-- 28
"condition of office" means a condition on which the authorised officer 29
holds office. 30
s 126 74 s 128
Aboriginal Cultural Heritage Bill 2003
126 Resignation 1
An authorised officer may resign by signed notice given to the chief 2
executive. 3
127 Return of identity card 4
A person who ceases to be an authorised officer must return the person's 5
identity card to the chief executive within 21 days after ceasing to be an 6
authorised officer unless the person has a reasonable excuse. 7
Maximum penalty--50 penalty units. 8
Division 2--Powers of authorised officers 9
Subdivision 1--Entry of places 10
128 Power to enter places 11
(1) An authorised officer may enter a place if-- 12
(a) its occupier consents to the entry; or 13
(b) it is a public place and the entry is made when the place is open 14
to the public; or 15
(c) the entry is authorised by a warrant. 16
(2) For the purpose of asking the occupier of a place for consent to enter, 17
an authorised officer may, without the occupier's consent or a warrant-- 18
(a) enter land around premises at the place to an extent that is 19
reasonable to contact the occupier; or 20
(b) enter part of the place the authorised officer reasonably considers 21
members of the public ordinarily are allowed to enter when they 22
wish to contact the occupier. 23
s 129 75 s 129
Aboriginal Cultural Heritage Bill 2003
Subdivision 2--Procedure for entry 1
129 Entry with consent 2
(1) This section applies if an authorised officer intends to ask an 3
occupier of a place to consent to the authorised officer or another 4
authorised officer entering the place. 5
(2) Before asking for the consent, the authorised officer must tell the 6
occupier-- 7
(a) the purpose of the entry; and 8
(b) that the occupier is not required to consent. 9
(3) If the consent is given, the authorised officer may ask the occupier to 10
sign an acknowledgment of the consent. 11
(4) The acknowledgment must state-- 12
(a) the occupier has been told-- 13
(i) the purpose of the entry; and 14
(ii) that the occupier is not required to consent; and 15
(b) the purpose of the entry; and 16
(c) the occupier gives the authorised officer consent to enter the 17
place and exercise powers under this Act; and 18
(d) the time and date the consent was given. 19
(5) If the occupier signs the acknowledgment, the authorised officer 20
must immediately give a copy to the occupier. 21
(6) If-- 22
(a) an issue arises in a proceeding about whether the occupier 23
consented to the entry; and 24
(b) an acknowledgement complying with subsection (4) for the entry 25
is not produced in evidence; 26
the onus of proof is on the person relying on the lawfulness of the entry to 27
prove the occupier consented. 28
s 130 76 s 131
Aboriginal Cultural Heritage Bill 2003
130 Application for warrant 1
(1) An authorised officer may apply to a magistrate for a warrant for a 2
place. 3
(2) The application must be sworn and state the grounds on which the 4
warrant is sought. 5
(3) The magistrate may refuse to consider the application until the 6
authorised officer gives the magistrate all the information the magistrate 7
requires about the application in the way the magistrate requires. 8
9
Example--
10
The magistrate may require additional information supporting the application to be
11
given by statutory declaration.
131 Issue of warrant 12
(1) The magistrate may issue a warrant only if the magistrate is satisfied 13
there are reasonable grounds for suspecting-- 14
(a) there is a particular thing or activity (the "evidence") that may 15
provide evidence of an offence against this Act; and 16
(b) the evidence is at the place, or may be at the place within the next 17
7 days. 18
(2) The warrant must state-- 19
(a) that a stated authorised officer may, with necessary and 20
reasonable help and force-- 21
(i) enter the place and any other place necessary for entry; and 22
(ii) exercise the authorised officer's powers under this Act; and 23
(b) the offence for which the warrant is sought; and 24
(c) the evidence that may be seized under the warrant; and 25
(d) the hours of the day or night when the place may be entered; and 26
(e) the date, within 14 days after the warrant's issue, the warrant 27
ends. 28
s 132 77 s 132
Aboriginal Cultural Heritage Bill 2003
132 Special warrants 1
(1) An authorised officer may apply for a warrant (a "special warrant") 2
by phone, fax, radio or another form of communication if the authorised 3
officer considers it necessary because of-- 4
(a) urgent circumstances; or 5
(b) other special circumstances, including, for example, the 6
authorised officer's remote location. 7
(2) Before applying for the special warrant, the authorised officer must 8
prepare an application stating the grounds on which the warrant is sought. 9
(3) The authorised officer may apply for the special warrant before the 10
application is sworn. 11
(4) After issuing the special warrant, the magistrate must immediately 12
fax a copy (the "facsimile warrant") to the authorised officer if it is 13
reasonably practicable to fax the copy. 14
(5) If it is not reasonably practicable to fax a copy to the authorised 15
officer-- 16
(a) the magistrate must tell the authorised officer-- 17
(i) what the terms of the special warrant are; and 18
(ii) the date and time the special warrant was issued; and 19
(b) the authorised officer must complete a form of warrant 20
(a "warrant form") and write on it-- 21
(i) the magistrate's name; and 22
(ii) the date and time the magistrate issued the special warrant; 23
and 24
(iii) the terms of the special warrant. 25
(6) The facsimile warrant, or the warrant form properly completed by the 26
authorised officer, authorises the entry and the exercise of the other powers 27
stated in the special warrant issued. 28
(7) The authorised officer must, at the first reasonable opportunity, send 29
to the magistrate-- 30
(a) the sworn application; and 31
(b) if the authorised officer completed a warrant form--the 32
completed warrant form. 33
s 133 78 s 133
Aboriginal Cultural Heritage Bill 2003
(8) On receiving the documents, the magistrate must attach them to the 1
special warrant. 2
(9) If-- 3
(a) an issue arises in a proceeding about whether an exercise of a 4
power was authorised by a special warrant; and 5
(b) the warrant is not produced in evidence; 6
the onus of proof is on the person relying on the lawfulness of the exercise 7
of the power to prove a special warrant authorised the exercise of the 8
power. 9
133 Warrants--procedure before entry 10
(1) This section applies if an authorised officer named in a warrant 11
issued under this Act for a place is intending to enter the place under the 12
warrant. 13
(2) Before entering the place, the authorised officer must do or make a 14
reasonable attempt to do the following things-- 15
(a) identify himself or herself to a person present at the place who is 16
an occupier of the place by producing a copy of the authorised 17
officer's identity card or other document evidencing the 18
authorised officer's appointment; 19
(b) give the person a copy of the warrant or, if the entry is authorised 20
by a facsimile warrant or warrant form, a copy of the facsimile 21
warrant or warrant form; 22
(c) tell the person the authorised officer is permitted by the warrant 23
to enter the place; 24
(d) give the person an opportunity to allow the authorised officer 25
immediate entry to the place without using force. 26
(3) However, the authorised officer need not comply with subsection (2) 27
if the authorised officer believes on reasonable grounds that immediate 28
entry to the place is required to ensure the effective execution of the 29
warrant is not frustrated. 30
s 134 79 s 134
Aboriginal Cultural Heritage Bill 2003
Subdivision 3--Powers after entry 1
134 General powers after entering places 2
(1) This section applies to an authorised officer who enters a place. 3
(2) However, if an authorised officer enters a place to get the occupier's 4
consent to enter premises, this section applies to the authorised officer only 5
if the consent is given or the entry is otherwise authorised. 6
(3) For enforcing compliance with this Act, the authorised officer may-- 7
(a) search any part of the place; or 8
(b) inspect, measure, test, photograph or film any part of the place or 9
anything at the place; or 10
(c) take a thing, or a sample of or from a thing, for analysis or 11
testing; or 12
(d) take an extract from, or copy, a document at the place; or 13
(e) take into or onto the place any person, including an Aboriginal 14
party or representative of an Aboriginal party, the authorised 15
officer reasonably requires for exercising a power under this Act; 16
or 17
(f) take into or onto the place any equipment and materials the 18
authorised officer reasonably requires for exercising a power 19
under this Act; or 20
(g) require the occupier of the place, or a person at the place, to give 21
the authorised officer reasonable help to exercise the authorised 22
officer's powers under paragraphs (a) to (f); or 23
(h) require the occupier of the place, or a person at the place, to give 24
the authorised officer information to help the authorised officer 25
ascertain whether this Act is being complied with. 26
(4) When making a requirement mentioned in subsection (3)(g) or (h), 27
the authorised officer must warn the person it is an offence to fail to 28
comply with the requirement unless the person has a reasonable excuse. 29
s 135 80 s 138
Aboriginal Cultural Heritage Bill 2003
135 Failure to help authorised officer 1
(1) A person required to give reasonable help under section 134(3)(g) 2
must comply with the requirement unless the person has a reasonable 3
excuse. 4
Maximum penalty--50 penalty units. 5
(2) If an individual is required under section 134(3)(g) to give 6
information, or produce a document, it is a reasonable excuse for the 7
individual not to comply with the requirement that complying with the 8
requirement might tend to incriminate the individual. 9
136 Failure to give information 10
(1) A person of whom a requirement is made under section 134(3)(h) 11
must comply with the requirement unless the person has a reasonable 12
excuse. 13
Maximum penalty--50 penalty units. 14
(2) It is a reasonable excuse for an individual not to comply with the 15
requirement that complying with the requirement might tend to incriminate 16
the individual. 17
Subdivision 4--Power to seize evidence 18
137 Seizing evidence at a place that may be entered without consent 19
or warrant 20
An authorised officer who enters a place that may be entered under 21
division 2, subdivision 1 without the consent of the occupier and without a 22
warrant, may seize a thing at the place if the authorised officer reasonably 23
believes the thing is evidence of an offence against this Act. 24
138 Seizing evidence at a place that may only be entered with consent 25
or warrant 26
(1) This section applies if-- 27
(a) an authorised officer is authorised to enter a place under 28
division 2, subdivision 1 only with the consent of the occupier of 29
the place or a warrant; and 30
s 139 81 s 139
Aboriginal Cultural Heritage Bill 2003
(b) the authorised officer enters the place after obtaining the 1
necessary consent or warrant. 2
(2) If the authorised officer enters the place with the occupier's consent, 3
the authorised officer may seize a thing at the place if-- 4
(a) the authorised officer reasonably believes the thing is evidence of 5
an offence against this Act; and 6
(b) seizure of the thing is consistent with the purpose of entry as told 7
to the occupier when asking for the occupier's consent. 8
(3) If the authorised officer enters the place with a warrant, the 9
authorised officer may seize the evidence for which the warrant was issued. 10
(4) The authorised officer also may seize anything else at the place if the 11
authorised officer reasonably believes-- 12
(a) the thing is evidence of an offence against this Act; and 13
(b) the seizure is necessary to prevent the thing being-- 14
(i) hidden, lost or destroyed; or 15
(ii) used to continue, or repeat, the offence. 16
(5) Also, the authorised officer may seize a thing at the place if the 17
authorised officer reasonably believes it has just been used in committing 18
an offence against this Act. 19
139 Securing seized things 20
Having seized a thing, an authorised officer may-- 21
(a) move the thing from the place where it was seized (the "place of 22
seizure"); or 23
(b) leave the thing at the place of seizure but take reasonable action 24
to restrict access to it. 25
26
Examples of restricting access to a thing--
27
1. Sealing a thing and marking it to show access to it is restricted.
28
2. Sealing the entrance to a room where the seized thing is situated and
29
marking the entrance to show access to the room is restricted.
s 140 82 s 142
Aboriginal Cultural Heritage Bill 2003
140 Tampering with seized things 1
If an authorised officer restricts access to a seized thing, a person must 2
not tamper, or attempt to tamper, with the thing, or something restricting 3
access to the thing, without an authorised officer's approval. 4
Maximum penalty--50 penalty units. 5
141 Power to support seizure 6
(1) To enable a thing to be seized, an authorised officer may require the 7
person in control of it-- 8
(a) to take it to a stated reasonable place by a stated reasonable time; 9
and 10
(b) if necessary, to remain in control of it at the stated place for a 11
reasonable time. 12
(2) The requirement-- 13
(a) must be made by notice in the approved form; or 14
(b) if for any reason it is not practicable to give the notice, may be 15
made orally and confirmed by notice in the approved form as 16
soon as practicable. 17
(3) A further requirement may be made under this section about the 18
same thing if it is necessary and reasonable to make the further 19
requirement. 20
(4) A person of whom a requirement is made under subsection (1) or (3) 21
must comply with the requirement unless the person has a reasonable 22
excuse. 23
Maximum penalty for subsection (4)--50 penalty units. 24
142 Receipts for seized things 25
(1) As soon as practicable after an authorised officer seizes a thing, the 26
authorised officer must give a receipt for it to the person from whom it was 27
seized. 28
(2) However, if for any reason it is not practicable to comply with 29
subsection (1), the authorised officer must leave the receipt at the place of 30
seizure in a conspicuous position and in a reasonably secure way. 31
s 143 83 s 145
Aboriginal Cultural Heritage Bill 2003
(3) The receipt must describe generally each thing seized and its 1
condition. 2
(4) This section does not apply to a thing if it is impracticable or would 3
be unreasonable to give the receipt, given the thing's nature, condition and 4
value. 5
143 Return of seized things 6
(1) If a seized thing has not been forfeited, the authorised officer must 7
return it to its owner-- 8
(a) at the end of 6 months; or 9
(b) if a proceeding for an offence involving the thing is started within 10
6 months--at the end of the proceeding and any appeal from the 11
proceeding. 12
(2) Despite subsection (1), unless the thing has been forfeited, the 13
authorised officer must immediately return a thing seized as evidence to its 14
owner if the authorised officer stops being satisfied its continued retention 15
as evidence is necessary. 16
144 Access to seized things 17
(1) Until a seized thing is forfeited or returned, an authorised officer 18
must allow its owner to inspect it and, if it is a document, to copy it. 19
(2) Subsection (1) does not apply if it is impracticable or would be 20
unreasonable to allow the inspection or copying. 21
Subdivision 5--Power to obtain information 22
145 Power to require name and address 23
(1) This section applies if-- 24
(a) an authorised officer finds a person committing an offence 25
against this Act; or 26
(b) an authorised officer finds a person in circumstances that lead, or 27
has information that leads, the authorised officer to reasonably 28
suspect the person has just committed an offence against this Act. 29
s 146 84 s 147
Aboriginal Cultural Heritage Bill 2003
(2) The authorised officer may require the person to state the person's 1
name and residential address. 2
(3) When making the requirement, the authorised officer must warn the 3
person it is an offence to fail to state the person's name or residential 4
address unless the person has a reasonable excuse. 5
(4) The authorised officer may require the person to give evidence of the 6
correctness of the stated name or residential address if the authorised 7
officer reasonably suspects the stated name or address is false. 8
(5) A requirement under subsection (2) or (4) is called a "personal 9
details requirement". 10
146 Failure to give name or address 11
(1) A person of whom a personal details requirement is made must 12
comply with the requirement unless the person has a reasonable excuse. 13
Maximum penalty--20 penalty units. 14
(2) A person does not commit an offence against subsection (1) if-- 15
(a) the person was required to state the person's name and residential 16
address by an authorised officer who suspected the person had 17
committed an offence against this Act; and 18
(b) the person is not proved to have committed the offence. 19
Division 3--General enforcement matters 20
147 Notice of damage 21
(1) This section applies if-- 22
(a) an authorised officer damages property when exercising or 23
purporting to exercise a power; or 24
(b) a person (the "other person") acting under the direction of an 25
authorised officer damages property. 26
(2) The authorised officer must immediately give notice of particulars of 27
the damage to the person who appears to the authorised officer to be the 28
owner of the property. 29
(3) If the authorised officer believes the damage was caused by a latent 30
defect in the property or circumstances beyond the authorised officer's or 31
s 148 85 s 149
Aboriginal Cultural Heritage Bill 2003
other person's control, the authorised officer may state the belief in the 1
notice. 2
(4) If, for any reason, it is impracticable to comply with subsection (2), 3
the authorised officer must leave the notice in a conspicuous position and 4
in a reasonably secure way where the damage happened. 5
(5) This section does not apply to damage the authorised officer 6
reasonably believes is trivial. 7
(6) In this section-- 8
"owner", of property, includes the person in possession or control of it. 9
148 Compensation 10
(1) A person may claim from the chief executive the cost of repairing or 11
replacing property damaged because of the exercise or purported exercise 12
of a power under a declared provision. 13
(2) Without limiting subsection (1), compensation may be claimed for 14
loss or expense incurred in complying with a requirement made of the 15
person under the declared provisions. 16
(3) Compensation may be claimed and ordered to be paid in a 17
proceeding-- 18
(a) brought in a court with jurisdiction for the recovery of the 19
amount of compensation claimed; or 20
(b) for an offence against this Act brought against the person 21
claiming compensation. 22
(4) A court may order compensation to be paid only if it is satisfied it is 23
just to make the order in the circumstances of the particular case. 24
149 False or misleading information 25
A person must not give information to an authorised officer the person 26
knows is false or misleading in a material particular. 27
Maximum penalty--50 penalty units. 28
s 150 86 s 152
Aboriginal Cultural Heritage Bill 2003
150 False or misleading documents 1
(1) A person must not give an authorised officer a document containing 2
information the person knows is false or misleading in a material 3
particular. 4
Maximum penalty--50 penalty units. 5
(2) Subsection (1) does not apply to a person if the person, when giving 6
the document-- 7
(a) tells the authorised officer, to the best of the person's ability, how 8
it is false or misleading; and 9
(b) if the person has, or can reasonably obtain, the correct 10
information--gives the correct information. 11
151 Obstructing authorised officers 12
(1) A person must not obstruct an authorised officer in the exercise of a 13
power unless the person has a reasonable excuse. 14
Maximum penalty--50 penalty units. 15
(2) If a person has obstructed an authorised officer and the authorised 16
officer decides to proceed with the exercise of the power, the authorised 17
officer must warn the person that-- 18
(a) it is an offence to obstruct the authorised officer unless the person 19
has a reasonable excuse; and 20
(b) the authorised officer considers the person's conduct is an 21
obstruction. 22
(3) In this section-- 23
"obstruct" includes hinder and attempt to obstruct. 24
PART 9--MISCELLANEOUS PROVISIONS 25
152 Delegations 26
(1) The Minister may delegate the Minister's powers under this Act to-- 27
(a) another Minister; or 28
s 153 87 s 153
Aboriginal Cultural Heritage Bill 2003
(b) an appropriately qualified public service officer. 1
(2) The chief executive may delegate the chief executive's powers under 2
this Act to an appropriately qualified public service officer. 3
(3) In this section-- 4
"appropriately qualified" includes having the qualifications, experience 5
or standing appropriate to the exercise of the power. 6
7
Example of standing--
8
a person's classification level in the public service
153 Access to land 9
(1) A person who wishes to enter land to perform an activity 10
(the "cultural heritage activity") under this Act must consult with the 11
owner or occupier of the land about obtaining the necessary access. 12
13
Example--
14
The sponsor for a cultural heritage management plan would need to consult with the
15
owner or occupier of land to obtain access required to properly assess Aboriginal
16
cultural heritage values for developing the plan.
(2) However, if the person is authorised under another Act to enter the 17
land to carry out activities for a project, and the cultural heritage activity is 18
a necessary complementary or ancillary activity to the project-- 19
(a) the person is also authorised to enter the land to perform the 20
cultural heritage activity; and 21
(b) unless otherwise agreed between the person and the owner or 22
occupier, the conditions of access that apply are the same 23
conditions of access that apply under the other Act. 24
(3) The authority given to the person under subsection (2) extends to 25
agents and employees of the person acting under the authority of the 26
person. 27
(4) If the person is the sponsor for a cultural heritage management plan, 28
the authority also extends to endorsed parties for the plan and their 29
representatives, if their access to the land is-- 30
(a) reasonably required to properly assess Aboriginal cultural 31
heritage values for developing the plan; and 32
(b) approved by the sponsor. 33
s 154 88 s 156
Aboriginal Cultural Heritage Bill 2003
154 Advisory committees 1
(1) The Minister may establish advisory committees as the Minister 2
considers appropriate. 3
(2) An advisory committee has the function of advising the Minister in 4
relation to the particular issues the Minister refers to it. 5
(3) A member of an advisory committee holds the member's 6
appointment on the conditions decided by the Minister. 7
(4) The Minister may at any time end the appointment of a member of an 8
advisory committee. 9
155 Purchase or compulsory acquisition to protect cultural heritage 10
(1) The Minister may issue a certificate (an "acquisition certificate") 11
for land if the Minister is satisfied that the State's purchase or compulsory 12
acquisition of the land is necessary to manage, preserve or protect 13
Aboriginal cultural heritage. 14
(2) If the acquisition certificate relates to a lease or easement under the 15
Land Act 1994, the lease or easement may be resumed under that Act. 16
(3) If the acquisition certificate relates to private land, the management, 17
preservation or protection of Aboriginal cultural heritage is a purpose for 18
which the land may be taken under the Acquisition of Land Act 1967. 19
156 Proceedings for an offence 20
(1) A proceeding for an offence against this Act, other than an indictable 21
offence, must be taken in a summary way under the Justices Act 1886 22
within-- 23
(a) 1 year after the offence is committed; or 24
(b) 6 months after the commission of the offence comes to the 25
complainant's knowledge, but within 2 years after the 26
commission of the offence. 27
(2) A proceeding for an offence against this Act that is an indictable 28
offence may be taken, at the prosecution's election-- 29
(a) by way of summary proceedings under the Justices Act 1886; or 30
(b) on indictment. 31
s 156 89 s 156
Aboriginal Cultural Heritage Bill 2003
(3) A proceeding against a person for an indictable offence must be 1
before a magistrate if it is a proceeding-- 2
(a) for the summary conviction of the person; or 3
(b) for an examination of witnesses in relation to the charge. 4
(4) If a proceeding for an indictable offence is brought before a justice 5
who is not a magistrate, jurisdiction is limited to taking or making a 6
procedural action or order within the meaning of the Justices of the Peace 7
and Commissioners for Declarations Act 1991. 8
(5) If-- 9
(a) a person charged with an indictable offence asks at the start of a 10
summary proceeding for the offence that the charge be 11
prosecuted on indictment; or 12
(b) the magistrate hearing a charge of an indictable offence considers 13
the charge should be prosecuted on indictment; 14
the magistrate-- 15
(c) must not decide the charge as a summary offence; and 16
(d) must proceed by way of a committal proceeding. 17
(6) If a magistrate acts under subsection (5)-- 18
(a) any plea of the person charged, made at the start of the 19
proceeding, must be disregarded; and 20
(b) any evidence brought in the proceeding before the magistrate 21
decided to act under subsection (5) is taken to be evidence in the 22
proceeding for the committal of the person for trial or sentence; 23
and 24
(c) before committing the person for trial or sentence, the magistrate 25
must make a statement to the person under the Justices Act 1886, 26
section 104(2)(b). 27
(7) The maximum penalty that may be imposed on a summary 28
conviction of an individual of an indictable offence is as follows-- 29
(a) to the extent the penalty imposed is a number of penalty 30
units--200 penalty units; 31
(b) to the extent the penalty imposed is imprisonment--1 year's 32
imprisonment. 33
s 157 90 s 160
Aboriginal Cultural Heritage Bill 2003
(8) The maximum penalty that may be imposed on a summary 1
conviction of a corporation of an indictable offence is 2 000 penalty units. 2
(9) An indictable offence under this Act is a misdemeanour. 3
(10) In this section-- 4
"indictable offence" means an offence against this Act for which the 5
maximum penalty for an individual is-- 6
(a) 1 000 or more penalty units; or 7
(b) at least 2 years imprisonment, whether or not the penalty also 8
includes a number of penalty units. 9
157 Review of Act 10
The Minister must review the efficacy and efficiency of this Act within 11
5 years of its commencement. 12
158 Approval of forms 13
The chief executive may approve forms for use under this Act. 14
159 Regulation-making power 15
(1) The Governor in Council may make regulations under this Act. 16
(2) A regulation may be made about fees payable under this Act. 17
(3) A regulation may provide for a maximum penalty of not more than 18
20 penalty units for a contravention of a regulation. 19
PART 10--REPEAL 20
160 Repeal of Cultural Record (Landscapes Queensland and 21
Queensland Estate) Act 1987 22
The Cultural Record (Landscapes Queensland and Queensland Estate) 23
Act 1987 No. 90 is repealed. 24
s 161 91 s 163
Aboriginal Cultural Heritage Bill 2003
PART 11--TRANSITIONAL PROVISIONS 1
161 Confirmation of ownership of Aboriginal cultural heritage 2
before commencement 3
(1) This Act is not generally intended to interfere with ownership of 4
Aboriginal cultural heritage established before the Act's commencement. 5
(2) A person's ownership of Aboriginal cultural heritage is confirmed 6
under this Act if, immediately before the commencement of this section, 7
the person was the owner of the cultural heritage. 8
(3) Subsection (2) does not apply to Aboriginal cultural heritage if, under 9
part 2, division 2 or 3, it becomes owned by Aboriginal people who have a 10
traditional or familial link with it. 11
162 Recording information about designated landscape areas 12
(1) The chief executive must, as soon as practicable after the 13
commencement of this section, record on the register the following 14
information about each area that, immediately before the commencement 15
of this section, was a designated landscape area under the repealed Act-- 16
(a) a description of the area, including, if necessary for accurately 17
locating the area, a plan of the area and a detailed description of 18
its boundaries; 19
(b) in general terms, a description of the Aboriginal cultural heritage 20
in the area; 21
(c) information the chief executive has about the cultural heritage 22
values of the area. 23
(2) The information recorded under subsection (1) about any part of an 24
area (the "relevant part") must be taken off the register if-- 25
(a) the findings of a cultural heritage study are recorded in the 26
register; and 27
(b) the study area for the study includes the relevant part. 28
163 Foundation material for database 29
(1) As soon as practicable after the commencement of this section, the 30
chief executive must take all reasonable steps to place on the database, as 31
s 164 92 s 166
Aboriginal Cultural Heritage Bill 2003
its foundation information, all information about Aboriginal cultural 1
heritage accumulated by the State before the commencement of this 2
section. 3
(2) The information required to be placed on the database under 4
subsection (1) includes information held about designated landscape areas 5
under the repealed Act, even if the information is also required to be 6
recorded in the register. 7
164 Existing agreement for carrying out activity 8
A person who carries out an activity under the requirements for carrying 9
out the activity that are included in an existing agreement to which the 10
person is a party does not commit an offence against a cultural heritage 11
protection provision in relation to Aboriginal cultural heritage expressly or 12
impliedly the subject of the agreement. 13
165 Permit under repealed Act 14
A permit issued under section 284 of the repealed Act and in force 15
immediately before the commencement of this section, to the extent it 16
relates to Aboriginal cultural heritage-- 17
(a) continues in force according to its terms; and 18
(b) may be dealt with under the provisions of the repealed Act 19
relating to it, other than section 295 of the repealed Act, as if the 20
provisions had not been repealed. 21
166 Authority obtained before commencement 22
(1) This section applies if-- 23
(a) under an Act other than this Act, an authority is required for an 24
activity; and 25
(b) the authority was obtained before the commencement of this 26
section. 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 167 93 s 168
Aboriginal Cultural Heritage Bill 2003
(2) The holder of the authority may apply to the Minister for the 1
Minister's approval of measures ("transitional measures") identifying 2
reasonable and practicable measures for ensuring the activity under the 3
authority avoids or minimises harm to Aboriginal cultural heritage. 4
(3) The transitional measures have effect, in relation to the carrying out 5
of the activity under the authority, as cultural heritage duty of care 6
guidelines. 7
(4) In this section-- 8
"authority" includes a lease, licence, permit or approval. 9
167 Cultural heritage arrangements for project authorised 10
before commencement 11
(1) This section applies to a project if-- 12
(a) under an Act other than this Act, an authority is required for the 13
project; and 14
(b) the authority was obtained before the commencement of this 15
section; and 16
(c) for the purposes of obtaining the authority, arrangements were 17
put in place, whether by placing conditions on the authority or in 18
some other way, directed at ensuring that the project would avoid 19
or minimise harm to Aboriginal cultural heritage. 20
(2) Until the project is finished, a person who, under the authority, 21
carries out an activity for the project under the arrangements does not 22
commit an offence against a cultural heritage protection provision in 23
relation to Aboriginal cultural heritage expressly or impliedly the subject of 24
the arrangements. 25
(3) In this section-- 26
"authority" includes a lease, licence, permit or approval. 27
168 Cultural heritage arrangements for project not authorised 28
before commencement 29
(1) This section applies to a project if-- 30
(a) under an Act other than this Act, an authority is required for the 31
project; and 32
s 169 94 s 170
Aboriginal Cultural Heritage Bill 2003
(b) the authority was applied for, but not obtained, before the 1
commencement of this section; and 2
(c) the applicant was notified before the commencement of this 3
section that an EIS was required for the project; and 4
(d) 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 Aboriginal cultural heritage. 8
(2) Part 7, division 2 does not apply to the project. 9
(3) Until the project is finished, a person who, under the authority, 10
carries out an activity for the project under the arrangements does not 11
commit an offence against a cultural heritage protection provision in 12
relation to Aboriginal cultural heritage expressly or impliedly the subject of 13
the arrangements. 14
(4) In this section-- 15
"authority" includes a lease, licence, permit or approval. 16
169 References to repealed Act 17
In an Act or document, a reference to the Cultural Record (Landscapes 18
Queensland and Queensland Estate) Act 1987 may, if the context permits, 19
be taken to be a reference to this Act. 20
PART 12--AMENDMENT OF ACTS 21
170 Acts amended 22
Schedule 1 amends the Acts mentioned in it. 23
95
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 1
AMENDMENT OF ACTS 2
section 170 3
COASTAL PROTECTION AND MANAGEMENT ACT 4
1995 5
1 Section 61G-- 6
insert-- 7
`(4) In this section-- 8
"coastal management" does not include coastal management in relation 9
to Aboriginal cultural heritage or Torres Strait Islander cultural 10
heritage.'. 11
2 Section 61N-- 12
insert-- 13
`(7) In this section-- 14
"coastal management" does not include coastal management in relation 15
to Aboriginal cultural heritage or Torres Strait Islander cultural 16
heritage.'. 17
3 Section 61O-- 18
insert-- 19
`(7) In this section-- 20
"coastal management" does not include coastal management in relation 21
to Aboriginal cultural heritage or Torres Strait Islander cultural 22
heritage.'. 23
96
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 (continued)
4 Section 61Y-- 1
insert-- 2
`(5) In this section-- 3
"coastal management" does not include coastal management in relation 4
to Aboriginal cultural heritage or Torres Strait Islander cultural 5
heritage.'. 6
5 Section 61ZB-- 7
insert-- 8
`(6) In this section-- 9
"coastal management" does not include coastal management in relation 10
to Aboriginal cultural heritage or Torres Strait Islander cultural 11
heritage.'. 12
6 Section 61ZJ(2)(d), from `value,'-- 13
omit, insert-- 14
`value;'. 15
7 Section 61ZJ-- 16
insert-- 17
`(5) In this section-- 18
"coastal management" does not include coastal management in relation 19
to Aboriginal cultural heritage or Torres Strait Islander cultural 20
heritage.'. 21
8 Schedule 2-- 22
insert-- 23
` "Aboriginal cultural heritage" see the Aboriginal Cultural Heritage Act 24
2003. 25
97
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 (continued)
"Torres Strait Islander cultural heritage" see the Torres Strait Islander 1
Cultural Heritage Act 2003.'. 2
FORESTRY ACT 1959 3
1 Section 5, definition "forest products", paragraph (e)-- 4
omit. 5
2 Section 5, definition "forest products", paragraphs (f) and (g)-- 6
renumber as paragraphs (e) and (f). 7
3 Section 61A-- 8
omit. 9
FREEDOM OF INFORMATION ACT 1992 10
1 Schedule 1, `Cultural Record (Landscapes Queensland and 11
Queensland Estate) Act 1987, section 31(1)'-- 12
omit. 13
2 Schedule 1-- 14
insert-- 15
`Aboriginal Cultural Heritage Act 2003, section 29(2) 16
Torres Strait Islander Cultural Heritage Act 2003, section 29(2)'. 17
98
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 (continued)
LAND AND RESOURCES TRIBUNAL ACT 1999 1
1 Section 53(3)(a) and (b)-- 2
omit, insert-- 3
`(a) if the relevant act is a contravention of an Aboriginal cultural 4
heritage protection provision--the Aboriginal cultural heritage to 5
which the contravention relates; or 6
(b) if the relevant act is a contravention of a Torres Strait Islander 7
cultural heritage protection provision--the Torres Strait Islander 8
cultural heritage to which the contravention relates; or 9
(c) if neither paragraph (a) nor paragraph (b) applies--an item, place 10
or area of cultural significance that may be adversely affected by 11
the doing of the act the subject of the application.'. 12
2 Section 53(5)-- 13
omit, insert-- 14
`(5) In this section-- 15
"Aboriginal cultural heritage protection provision" means the 16
Aboriginal Cultural Heritage Act 2003, section 24(1), 25(1) or 26(1).6 17
"group" means a group of Aboriginal people or Torres Strait Islanders. 18
"relevant act" means an act that is a contravention of-- 19
(a) an Aboriginal cultural heritage protection provision; or 20
(b) a Torres Strait Islander cultural heritage protection provision; or 21
(c) a provision of another Act providing for the protection, 22
preservation of, or access to items, places or areas of cultural 23
significance to Aboriginal people or Torres Strait Islanders. 24
6 Aboriginal Cultural Heritage Act 2003, section 24 (Unlawful harm to Aboriginal
cultural heritage), 25 (Prohibited excavation, relocation and taking away) or 26
(Unlawful possession of Aboriginal cultural heritage)
99
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 (continued)
"Torres Strait Islander cultural heritage protection provision" means 1
the Torres Strait Islander Cultural Heritage Act 2003, section 24(1), 2
25(1) or 26(1).7'. 3
NATURE CONSERVATION ACT 1992 4
1 Section 61-- 5
insert-- 6
`(3) Also, subsection (1) has effect subject to-- 7
(a) the Aboriginal Cultural Heritage Act 2003 to the extent it 8
provides for the ownership of Aboriginal cultural heritage other 9
than by the State; and 10
(b) the Torres Strait Islander Cultural Heritage Act 2003 to the 11
extent it provides for the ownership of Torres Strait Islander 12
cultural heritage other than by the State.'. 13
WHISTLEBLOWERS PROTECTION ACT 1994 14
1 Schedule 2, entry for Cultural Record (Landscapes Queensland 15
and Queensland Estate) Act 1987-- 16
omit. 17
2 Schedule 2-- 18
insert-- 19
7 Torres Strait Islander Cultural Heritage Act 2003, section 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)
100
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 1 (continued)
`Aboriginal Cultural Heritage Act 2003 1
· section 24(1) (Unlawful harm to Aboriginal cultural heritage) 2
· section 25(1) (Prohibited excavation, relocation and taking away) 3
· section 26(1) (Unlawful possession of Aboriginal cultural 4
heritage) 5
Torres Strait Islander Cultural Heritage Act 2003 6
· section 24(1) (Unlawful harm to Torres Strait Islander cultural 7
heritage) 8
· section 25(1) (Prohibited excavation, relocation and taking away) 9
· section 26(1) (Unlawful possession of Torres Strait Islander 10
cultural heritage)'. 11
101
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 1
DICTIONARY 2
section 7 3
"Aboriginal cultural heritage" see section 8. 4
"Aboriginal cultural heritage body", for an area, means an entity 5
registered under part 4 as an Aboriginal cultural heritage body for the 6
area. 7
"Aboriginal human remains"-- 8
(a) includes burial objects and associated material; but 9
(b) does not include human remains-- 10
(i) buried under the authority of the law of Queensland or 11
another State; or 12
(ii) in or from a place recognised as a burial ground for 13
interment of human remains buried under the authority of 14
the law of Queensland or another State. 15
"Aboriginal party", for an area, see section 35. 16
"alternate dispute resolution arrangements" means arrangements that, 17
to the greatest practicable extent, provide for the handling of disputes 18
other than before a court. 19
"appeal period"-- 20
(a) for part 6, division 5--see section 75; or 21
(b) for part 7, division 6--see section 110. 22
"approved cultural heritage management plan" means a cultural 23
heritage management plan that has been approved by the chief 24
executive or the Minister under part 7. 25
"approved form" means a form approved by the chief executive under 26
section 158. 27
"area" means-- 28
(a) an area of land; or 29
102
Aboriginal Cultural Heritage Bill 2003
(b) an expanse of water; or 1
(c) an area of land under water; or 2
(d) any combination of 2 or more of paragraphs (a) to (c). 3
"authorised officer" means a person appointed as an authorised officer 4
under section 121. 5
"basic information requirement"-- 6
(a) for a written notice (proposed study)--see section 57; or 7
(b) for a written notice (proposed plan)--see section 92. 8
"Commonwealth Native Title Act" means the Native Title Act 1993 9
(Cwlth). 10
"consultation party", for a cultural heritage management plan, means-- 11
(a) the sponsor for the plan; or 12
(b) an endorsed party for the plan. 13
"consultation period", for a cultural heritage management plan, means 14
the period of 84 days starting immediately after the period of 30 days 15
after the notice day (proposed plan). 16
"cultural heritage assessor", for a cultural heritage study, means a person 17
engaged under section 68 as a cultural heritage assessor for the study. 18
"cultural heritage duty of care" see section 23. 19
"cultural heritage duty of care guidelines" see section 28. 20
"cultural heritage management plan" means a document providing for 21
how activities for a project are to be managed for their impact on 22
Aboriginal cultural heritage. 23
"cultural heritage protection provision" means section 23, 24, 25 or 26.8 24
"cultural heritage study" means a comprehensive study of Aboriginal 25
cultural heritage in an area conducted under part 6 for the purpose of 26
recording the findings of the study on the register. 27
"database" means the Aboriginal Cultural Heritage Database established 28
under section 38. 29
8 Section 23 (Cultural heritage duty of care), 24 (Unlawful harm to Aboriginal
cultural heritage), 25 (Prohibited excavation, relocation and taking away) or 26
(Unlawful possession of Aboriginal cultural heritage)
103
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 (continued)
"declared provision" means any of the following provisions-- 1
· section 128 2
· section 134 3
· sections 137 to 139 4
· section 141. 5
"EIS" means an environmental impact statement. 6
"endorsed party" means-- 7
(a) for a cultural heritage study--an Aboriginal party endorsed 8
under section 62, 63, 64 or 65 to take part in the study; or 9
(b) for a cultural heritage management plan--an Aboriginal party 10
endorsed under section 97, 98, 99, 100 or 101 to take part in 11
developing the plan. 12
"existing agreement" means an agreement-- 13
(a) that was entered into before the commencement of this schedule, 14
and that is still in force, with an entity that becomes, on the 15
commencement of this schedule, an Aboriginal party; and 16
(b) that expressly or impliedly deals with Aboriginal cultural 17
heritage. 18
"facsimile warrant" see section 132(4). 19
"harm", to Aboriginal cultural heritage, means damage or injury to, or 20
desecration or destruction of, the cultural heritage. 21
"information protection provision" means section 29. 22
"IPA" means the Integrated Planning Act 1997. 23
"land user" means a person carrying out, or proposing to carry out, 24
activities on land likely to materially affect the land. 25
26
Example of activities--
27
farming activities, construction activities
"National Native Title Register" means the National Native Title Register 28
under the Commonwealth Native Title Act. 29
"native title agreement" means-- 30
104
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 (continued)
(a) an indigenous land use agreement registered on the Register of 1
Indigenous Land Use Agreements; or 2
(b) any of the following under part 2, division 3, subdivision P of the 3
Commonwealth Native Title Act-- 4
(i) an agreement mentioned in section 31(1)(b); 5
(ii) a determination of the relevant Minister under section 36A; 6
(iii) a determination of the arbitral body under section 38; or 7
(c) an access agreement or negotiated agreement under the native 8
title mining provisions. 9
"native title mining provisions" means the Mineral Resources Act 1989, 10
parts 12 to 18, and part 19, divisions 2 and 5. 11
"native title party", for an area, see section 34. 12
"native title protection conditions" means native title protection 13
conditions under the Mineral Resources Act 1989, section 25AA, 14
141AA or 194AAA. 15
"native title rights and interests" see the Commonwealth Native Title 16
Act, section 223. 17
"notice day (proposed plan)", for a cultural heritage management plan, 18
means the day nominated by the sponsor for the plan as the day that 19
may reasonably be assumed to be the day by which-- 20
(a) the written notice (proposed plan) for the plan will have been 21
received by each person to whom it is required to be given; and 22
(b) each public notice (proposed plan) required to be given will have 23
come to the attention of the persons to whom it is directed. 24
"notice day (proposed study)", for a cultural heritage study, means the 25
day nominated by the sponsor for the study as the day that may 26
reasonably be assumed to be the day by which-- 27
(a) the written notice (proposed study) for the study will have been 28
received by each person to whom it is required to be given; and 29
(b) each public notice (proposed study) required to be given will 30
have come to the attention of the persons to whom it is directed. 31
105
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 (continued)
"owner", of an area, means the person for the time being entitled to receive 1
the rent for the area or who would be entitled to receive the rent for it 2
if it were let to a tenant for rent. 3
"party"-- 4
(a) for part 6, division 5--see section 75; or 5
(b) for part 7, division 6--see section 110. 6
"personal details requirement" see section 145(5). 7
"plan area", in relation to a cultural heritage management plan, means the 8
area the subject of the plan. 9
"private land" means land forming part of Queensland that is not State 10
land. 11
"project" includes-- 12
(a) a development or proposed development; and 13
(b) an action or proposed action; and 14
(c) a use or proposed use of land. 15
"project area", in relation to a project, means the area the subject of the 16
project, whether in construction or operational phases. 17
"public notice (proposed plan)" see section 96(2). 18
"public notice (proposed study)" see section 61(2). 19
"Queensland Museum" means the Board of the Queensland Museum 20
under the under the Queensland Museum Act 1970. 21
"register" means the Aboriginal Cultural Heritage Register established 22
under section 46. 23
"registered native title body corporate" see the Commonwealth Native 24
Title Act, section 253. 25
"registered native title claimant" see the Commonwealth Native Title 26
Act, section 253. 27
"registered native title holder" means-- 28
(a) a registered native title body corporate; or 29
(b) an entity, other than a registered native title body corporate, that 30
is the subject of a determination of native title under the 31
106
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 (continued)
Commonwealth Native Title Act and is registered on the National 1
Native Title Register as holding native title rights and interests. 2
"registered significant area" means an area recorded in the register as a 3
significant Aboriginal area. 4
"registered significant object" means an object recorded in the register as 5
a significant Aboriginal object. 6
"Register of Indigenous Land Use Agreements" means the Register of 7
Indigenous Land Use Agreements under the Commonwealth Native 8
Title Act. 9
"Register of Native Title Claims" means the Register of Native Title 10
Claims under the Commonwealth Native Title Act. 11
"repealed Act" means the Cultural Record (Landscapes Queensland and 12
Queensland Estate) Act 1987. 13
"representative body" see the Commonwealth Native Title Act, 14
section 253. 15
"sacred" means sacred according to Aboriginal tradition. 16
"secret" means secret according to Aboriginal tradition. 17
"significant Aboriginal area" see section 9. 18
"significant Aboriginal object" see section 10. 19
"sponsor" means-- 20
(a) for a cultural heritage study--the person who accepts 21
responsibility for the study; or 22
(b) for a cultural heritage management plan--means the person who 23
accepts responsibility for the plan. 24
"State land" means all land forming part of Queensland that is not 25
freehold land, or land contracted to be granted in fee-simple by the 26
State. 27
"stop order", for a person's activity, means an order of the Minister-- 28
(a) requiring the person to stop the activity; or 29
(b) prohibiting the person from starting the activity. 30
"study area", for a cultural heritage study, means the area the subject of 31
the study. 32
107
Aboriginal Cultural Heritage Bill 2003
SCHEDULE 2 (continued)
"tribunal" means the Land and Resources Tribunal. 1
"warrant form" see section 132(5). 2
"written notice (proposed plan)" see section 91(1). 3
"written notice (proposed study)" see section 56(1). 4
© State of Queensland 2003
AMENDMENTS TO BILL
1
Aboriginal Cultural Heritage Bill 2003
ABORIGINAL CULTURAL HERITAGE
BILL 2003
AMENDMENTS AGREED TO IN COMMITTEE
1 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 1--
At page 95, line 6, `61G'--
omit, insert--
`75'.
2 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 2--
At page 95, line 12, `61N'--
omit, insert--
`82'.
3 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 3--
At page 95, line 18, `61O'--
omit, insert--
`83'.
4 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 4--
At page 96, line 1, `61Y'--
omit, insert--
`93'.
2
Aboriginal Cultural Heritage Bill 2003
5 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 5--
At page 96, line 7, `61ZB'--
omit, insert--
`96'.
6 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 6--
At page 96, line 13, `61ZJ'--
omit, insert--
`104'.
7 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 7--
At page 96, line 16, `61ZJ'--
omit, insert--
`104'.
8 Schedule 1, amendment of Coastal Protection and Management
Act 1995, amendment 8--
At page 96, line 22, `Schedule 2'--
omit, insert--
`Schedule'.
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