(1) A person who carries out an activity must take all reasonable and
practicable measures to ensure the activity does not harm
Torres Strait Islander cultural heritage (the
"cultural heritage duty of care" ).
Penalty—
Maximum penalty—
(a) for
an individual—1,000 penalty units;
(b) for a corporation—10,000 penalty
units.
(2) Without limiting the matters that may be considered by a court
required to decide whether a person has complied with the
cultural heritage duty of care in carrying out an activity, the court may
consider the following—
(c) the extent to which the person consulted with Torres Strait
Islander parties about the carrying out of the activity, and the results of
the consultation;
(d) whether the person carried out a study or survey, of
any type, of the area affected by the activity to find out the location and
extent of Torres Strait Islander cultural heritage, and the extent of the
study or survey;
(e) whether the person searched the database and register
for information about the area affected by the activity;
(iii) under a native title
agreement or another agreement with a Torres Strait Islander party, unless the
Torres Strait Islander cultural heritage is expressly excluded from being
subject to the agreement; or
(v) in compliance with native
title protection conditions, but only if the cultural heritage is expressly or
impliedly the subject of the conditions; or