ABORIGINAL HERITAGE ACT 2006

Victorian Consolidated Legislation

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ABORIGINAL HERITAGE ACT 2006

No. 16 of 2006
Version incorporating amendments as at 28 May 2007

TABLE OF PROVISIONS

Section Page

PART 1-PRELIMINARY

1. Purpose
2. Commencement
3. Objectives
4. Definitions
5. What is an Aboriginal place?
6. Who is a native title party for an area?
7. Traditional or familial links
8. Heritage significance not affected by damage
9. Act does not affect operation of Coroners Act 1985.
10. Native title rights and interests
11. Act binds the Crown

PART 2-OWNERSHIP AND CUSTODY OF ABORIGINAL CULTURAL HERITAGE

Division 1-Underlying principles

12. Principles

Division 2-Aboriginal human remains

13. Ownership of Aboriginal human remains
14. Aboriginal human remains in custody of State
15. Return and custody of Aboriginal human remains by Museums Board
16. Return of Aboriginal human remains by other entities
17. Reporting Aboriginal human remains
18. Secretary must determine how to act on report
19. Transfer of Aboriginal human remains to Secretary
20. What must the Secretary do with transferred remains?

Division 3-Secret or sacred Aboriginal objects

21. Ownership of secret or sacred objects
22. Return of secret or sacred objects by State entity
23. Return of secret or sacred objects by other entities

Division 4-Aboriginal places and objects

24. Reporting discovery of Aboriginal places and objects
25. Continued use of surface of land

Division 5-Role of the Museums Board of Victoria

26. Role of Museums Board of Victoria

PART 3-PROTECTION OF ABORIGINAL CULTURAL HERITAGE

Division 1-Protection from harm

27. Harming Aboriginal cultural heritage unlawful
28. Doing an act likely to harm Aboriginal cultural heritage
unlawful
29. When is harm permitted?
30. Order to repair or restore Aboriginal cultural heritage

Division 2-Acquisition and grant of land

31. Acquisition of Aboriginal place
32. Grant of land

Division 3-Control of activities

33. Possession of Aboriginal object
34. Control of activities
35. Forfeiture of Aboriginal object to Crown

Division 4-Cultural heritage permits

36. Application for cultural heritage permit
37. Restrictions on grant of permit
38. Referral of application to registered Aboriginal party
39. Action by registered Aboriginal party on application
40. Determination of application
41. Conditions on cultural heritage permits

PART 4-CULTURAL HERITAGE MANAGEMENT PLANS

Division 1-What is a cultural heritage management plan?

42. What is a cultural heritage management plan?
43. Procedure for assessment
44. Who may prepare a plan?
45. Voluntary cultural heritage management plan

Division 2-When is a cultural heritage management plan required?

46. Mandatory cultural heritage management plans
47. Regulations may require plan
48. Minister may require plan
49. Plan required if Environment Effects Statement required

Division 3-Other authorisations suspended until plan prepared

50. Definitions
51. Application of Division
52. Plan must be prepared before authorisation given

Division 4-Preparation of cultural heritage management plans

53. Cultural heritage management plan to be prepared in accordance with prescribed standards
54. Notice of intention to prepare cultural heritage management
plan
55. Registered Aboriginal parties may elect to evaluate plan
56. Sponsor to notify Secretary of intention of registered Aboriginal party
57. Newly registered Aboriginal parties
58. Engagement of cultural heritage advisor
59. Obligations of sponsor and registered Aboriginal party
60. Registered Aboriginal party may also advise

Division 5-Approval of cultural heritage management plans

61. Matters to be considered in relation to a plan
62. Application to registered Aboriginal party for approval
63. Decision by registered Aboriginal party
64. When does a plan approved by a registered Aboriginal party take effect?
65. Approval by Secretary
66. Approval by Council

Division 6-General

67. Sponsor must give assessment documentation to Secretary

PART 5-CULTURAL HERITAGE AGREEMENTS

Division 1-Making and amendment of agreements

68. What is a cultural heritage agreement?
69. Parties to a cultural heritage agreement
70. Form of cultural heritage agreement
71. Amendment of cultural heritage agreement
72. Agreement of no effect without consent of registered Aboriginal parties
73. When does a cultural heritage agreement begin?
74. When does a cultural heritage agreement end?

Division 2-Lodgement and registration of agreements

75. Cultural heritage agreements to be lodged with Secretary
76. Registration of cultural heritage agreements
77. Effect of registration
78. Governor in Council may release covenant
79. Cancellation or amendment of registration

PART 6-CULTURAL HERITAGE AUDITS AND STOP
ORDERS

Division 1-Cultural heritage audits

80. What is a cultural heritage audit?
81. When can a cultural heritage audit be ordered?
82. Requirement of cultural heritage audit
83. Conduct of cultural heritage audit
84. Report of cultural heritage audit
85. Approval of report of audit
86. Notification and effect of approval

Division 2-Stop orders

87. When can a stop order be issued?
88. Stop order required for cultural heritage audit
89. What can a stop order do?
90. How is a stop order delivered?
91. How long does a stop order operate?
92. Extension of stop order
93. Revocation of stop order
94. Further stop order
95. Offence to fail to comply with stop order

PART 7-PROTECTION DECLARATIONS

Division 1-Interim protection declarations

96. Interim protection declarations
97. What must an interim protection declaration provide for?
98. Period of interim protection declaration
99. Amendment or revocation of interim protection declaration
100. Minister to consult
101. Publication of declaration
102. Offence to contravene interim protection declaration

Division 2-Ongoing protection declarations

103. Ongoing protection declarations
104. What must an ongoing protection declaration provide for?
105. Amendment or revocation of ongoing protection declaration
106. Minister to consult
107. Publication of declaration
108. Offence to contravene ongoing protection declaration

Division 3-General

109. Declaration has effect
110. Notices relating to declarations

PART 8-DISPUTES REGARDING ABORIGINAL CULTURAL HERITAGE

Division 1-Disputes regarding cultural heritage management plans
Subdivision 1-Alternative dispute resolution

111. Meaning of dispute
112. What alternative dispute resolution includes
113. Referral of disputes for alternative dispute resolution
114. Costs of alternative dispute resolution
115. Statements made during alternative dispute resolution not admissible
Subdivision 2-Dispute resolution in VCAT
116. Sponsor may apply to VCAT
117. Parties to proceeding
118. Decision of VCAT
119. VCAT to consider certain matters
120. VCAT to be satisfied of certain matters

Division 2-Disputes regarding cultural heritage permits

121. Applicant for cultural heritage permit may apply to VCAT
122. Parties to proceeding
123. Decision of VCAT
124. VCAT to be satisfied of certain matters

Division 3-Disputes regarding protection declaration decisions

125. What is a protection declaration decision?
126. Review of protection declaration decisions
127. Parties to proceeding
128. Decision of VCAT
129. VCAT to have regard to certain matters

PART 9-ADMINISTRATION

Division 1-Aboriginal Heritage Council

130. Establishment of Council
131. Membership
132. Functions of the Council
133. Functions of the Chairperson
134. Payment of members
135. Resignation and removal
136. Acting members
137. Co-opted members
138. Election of Chairperson and Deputy Chairperson
139. Procedure of the Council
140. Effect of a vacancy or defect
141. Immunity from liability
142. Conflict of interest

Division 2-The Secretary

143. Functions of the Secretary

Division 3-Victorian Aboriginal Heritage Register

144. Victorian Aboriginal Heritage Register
145. What is in the Register?
146. Who may access the Register?
147. Secretary may provide advice to persons or bodies seeking access to Register

PART 10-REGISTERED ABORIGINAL PARTIES

Division 1-Functions of registered Aboriginal parties

148. Functions of a registered Aboriginal party
149. Registered Aboriginal party must act in good faith

Division 2-Application and registration

150. Application for registration
151. Determination of application for registration
152. Effect of determination
153. Parties for area
154. Notice of determination
155. Variation of registration
156. Suspension and revocation of registration
157. Procedure for suspension or revocation of registration
158. Review of decisions of the Council

PART 11-ENFORCEMENT

Division 1-Inspectors

159. Functions of inspectors
160. Appointment of inspectors
161. Re-appointment of inspectors
162. Suspension and revocation of appointment
163. Cessation of appointment
164. Identity cards
165. Inspector to produce identity card

Division 2-Powers of inspectors

166. General power to enter land or premises
167. Obtaining the consent of the occupier
168. Power to enter land or premises open to public
169. Power to enter land or premises for audit
170. Search powers upon entry
171. Seizure powers on entry without search warrant
172. Seizure power without consent
173. Search warrants
174. Announcement before entry
175. Copy of search warrant to be given to occupier
176. Receipt for seized things
177. Security of seized things
178. Seizure of Aboriginal human remains or object
179. Return of seized things
180. Inspector may require giving of name and address
181. Inspector may require information
182. Inspector may take affidavits
183. Person must not give false information etc.

Division 3-General

184. Report to be given about entry
185. Person must not impersonate, obstruct or hinder inspector
186. Who may prosecute?
187. Evidence

PART 12-GENERAL

188. Delegation
189. Cultural heritage advisor
190. Approval of forms
191. Tax and rate remissions
192. Report on operation of Act
193. Review of operation of Act
194. Regulations

PART 13-REPEAL, SAVING AND TRANSITIONAL PROVISIONS AND AMENDMENT OF ACTS

195. Repeal
196. Saving and transitional provisions
197. Amendment of the Victorian Civil and Administrative Tribunal Act 1998.

PART 1A-ABORIGINAL HERITAGE ACT 2006.

198. Consequential amendments
__________________
SCHEDULE 1-Saving and Transitional Provisions
1. Definitions
2. Application of Interpretation of Legislation Act 1984.
3. Continuation of old Act and regulations
4. Superseded references
5. Reports of discovery of Aboriginal human remains
6. Permits and consents
7. Cultural heritage agreements
8. Interim protection declarations
9. Ongoing protection declarations
10. Seizure of things
11. Savings and transitional regulations
SCHEDULE 2-Consequential Amendments
1. Alcoa (Portland Aluminium Smelter) Act 1980.
2. Confiscation Act 1997.
3. Extractive Industries Development Act 1995.
4. Geothermal Energy Resources Act 2005.
5. Mineral Resources (Sustainable Development) Act 1990.
6. Petroleum Act 1998.
7. Very Fast Train (Route Investigation) Act 1989.
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details

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