{"id":"C2004A02943","name":"Aboriginal and Torres Strait Islander Heritage Protection Act 1984","slug":"aboriginal-and-torres-strait-islander-heritage-protection-act-1984","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"79 of 1984","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":25935,"registerId":"commonwealth-C2004A02943-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part I","sectionType":"part","heading":"Preliminary","content":"## Part I—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n  This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n  This Act shall come into operation on the day on which it receives the Royal Assent.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Interpretation","content":"#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.\n\n> Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:\n\n    (a) a body or the remains of a body:\n    (i) buried in accordance with the law of a State or Territory; or\n    (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;\n    (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or\n    (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.\n\n> Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.\n\n> area includes a site.\n\n> Australian waters means:\n\n    (a) the territorial sea of Australia and any sea on the landward side of that territorial sea;\n    (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or\n    (c) the sea over the continental shelf of Australia.\n\n> Federal Court means the Federal Court of Australia.\n\n> significant Aboriginal area means:\n\n    (a) an area of land in Australia or in or beneath Australian waters;\n    (b) an area of water in Australia; or\n    (c) an area of Australian waters;\n  being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n> significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n  (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:\n    (a) in the case of an area:\n    (i) it is used or treated in a manner inconsistent with Aboriginal tradition;\n    (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or\n    (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or\n    (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;\n  and references in this Act to injury or desecration shall be construed accordingly.\n  (3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.","sortOrder":3},{"sectionNumber":"4","sectionType":"section","heading":"Purposes of Act","content":"#### 4 Purposes of Act\n\n  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.","sortOrder":4},{"sectionNumber":"5","sectionType":"section","heading":"Extension to Territories","content":"#### 5 Extension to Territories\n\n  This Act extends to every external Territory.","sortOrder":5},{"sectionNumber":"6","sectionType":"section","heading":"Act binds the Crown","content":"#### 6 Act binds the Crown\n\n  This Act binds the Crown in each of its capacities.","sortOrder":6},{"sectionNumber":"6A","sectionType":"section","heading":"Application of the Criminal Code","content":"#### 6A Application of the Criminal Code\n\n  Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.","sortOrder":7},{"sectionNumber":"7","sectionType":"section","heading":"Application of other laws","content":"#### 7 Application of other laws\n\n  (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.\n  (2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.\n  (3) Where:\n    (a) a law of a State or Territory deals with a matter dealt with in this Act; and\n    (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);\n  the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.\n  (4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.","sortOrder":8},{"sectionNumber":"8","sectionType":"section","heading":"Application of Act","content":"#### 8 Application of Act\n\n  (1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.\n  (2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.","sortOrder":9},{"sectionNumber":"Part II","sectionType":"part","heading":"Protection of significant Aboriginal areas and objects","content":"An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.\n\n#### 2 Commencement\n\n  This Act shall come into operation on the day on which it receives the Royal Assent.\n\n#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.\n\n> Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:\n\n    (a) a body or the remains of a body:\n    (i) buried in accordance with the law of a State or Territory; or\n    (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;\n    (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or\n    (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.\n\n> Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.\n\n> area includes a site.\n\n> Australian waters means:\n\n    (a) the territorial sea of Australia and any sea on the landward side of that territorial sea;\n    (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or\n    (c) the sea over the continental shelf of Australia.\n\n> Federal Court means the Federal Court of Australia.\n\n> significant Aboriginal area means:\n\n    (a) an area of land in Australia or in or beneath Australian waters;\n    (b) an area of water in Australia; or\n    (c) an area of Australian waters;\n  being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n> significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n  (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:\n    (a) in the case of an area:\n    (i) it is used or treated in a manner inconsistent with Aboriginal tradition;\n    (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or\n    (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or\n    (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;\n  and references in this Act to injury or desecration shall be construed accordingly.\n  (3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.\n\n#### 4 Purposes of Act\n\n  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n#### 5 Extension to Territories\n\n  This Act extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n  This Act binds the Crown in each of its capacities.\n\n#### 6A Application of the Criminal Code\n\n  Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n#### 7 Application of other laws\n\n  (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.\n  (2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.\n  (3) Where:\n    (a) a law of a State or Territory deals with a matter dealt with in this Act; and\n    (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);\n  the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.\n  (4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.\n\n#### 8 Application of Act\n\n  (1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.\n  (2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.\n\n## Part II—Protection of significant Aboriginal areas and objects\n\n### Division 1—Declarations by Minister\n\n#### 9 Emergency declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under serious and immediate threat of injury or desecration;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.\n  (3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.\n\n#### 10 Other declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under threat of injury or desecration;\n    (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:\n    (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:\n    (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;\n    (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and\n    (iii) specifying an address to which such representations may be furnished; and\n    (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.\n  (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:\n    (a) the particular significance of the area to Aboriginals;\n    (b) the nature and extent of the threat of injury to, or desecration of, the area;\n    (c) the extent of the area that should be protected;\n    (d) the prohibitions and restrictions to be made with respect to the area;\n    (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);\n    (f) the duration of any declaration;\n    (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;\n    (h) such other matters (if any) as are prescribed.\n\n#### 11 Contents of declarations under section 9 or 10\n\n  A declaration under subsection 9(1) or 10(1) in relation to an area shall:\n    (a) describe the area with sufficient particulars to enable the area to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.\n\n#### 12 Declarations in relation to objects\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;\n    (b) is satisfied:\n    (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and\n    (ii) that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;\n    (c) has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) A declaration under subsection (1) in relation to an object or objects shall:\n    (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.\n  (3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:\n    (a) the Minister; or\n    (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.\n\n#### 13 Making of declarations\n\n  (1) In this section:\n\n> declaration means a declaration under this Division.\n\n  (2) The Minister shall not make a declaration in relation to an area, object or objects located in a State or the Northern Territory unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.\n  (3) The Minister may, at any time after receiving an application for a declaration, whether or not he or she has made a declaration pursuant to the application, request such persons as he or she considers appropriate to consult with him or her, or with a person nominated by him or her, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.\n  (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration.\n  (5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area, object or objects.\n  (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.\n\n#### 14 Publication and commencement of declarations\n\n  (1) A declaration under this Division:\n    (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and\n    (b) comes into operation on the day after the day of its registration under the Legislation Act 2003 or such later date as is specified in the declaration.\n  (2) As soon as practicable after making a declaration under this Division, the Minister shall:\n    (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and\n    (b) in the case of a declaration in relation to an area—serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it shall enter the area in the register.\n  (3) Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.\n\n#### 16 Refusal to make declaration\n\n  Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.\n\n### Division 2—Declarations by authorized officers\n\n#### 17 Authorised officers\n\n  (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.\n  (2) The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.\n  (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:\n    (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or\n    (b) in any other case—give that person such particulars of his or her identity card as are prescribed.\n  (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.\n\n#### 18 Emergency declarations in relation to areas or objects\n\n  (1) Where:\n    (a) at any time, an authorized officer is satisfied that:\n    (i) an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;\n    (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and\n    (iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and\n    (b) no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);\n  the officer may make a declaration for the purposes of this section.\n  (2) A declaration under subsection (1):\n    (a) shall be in writing;\n    (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect;\n    (c) shall:\n    (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or\n    (ii) where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (d) shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.\n  (2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (2B) A declaration under subsection (1) is not a legislative instrument.\n  (3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.\n\n#### 19 Notification of declarations\n\n  (1) An authorized officer shall, as soon as practicable after making a declaration under section 18:\n    (a) in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and\n    (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.\n  (2) Any failure to comply with subsection (1) does not invalidate a declaration.\n\n### Division 3—Discovery and disposal of Aboriginal remains\n\n#### 20 Discovery of Aboriginal remains\n\n  (1) A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.\n  (2) Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.\n\n#### 21 Disposal of Aboriginal remains\n\n  (1) Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:\n    (a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;\n    (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or\n    (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.\n  (2) Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.\n\n## Part III—Offences, penalties and legal proceedings\n\n#### 22 Offences and penalties\n\n  (1) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or\n    (b) if the person is a body corporate—500 penalty units.\n  (2) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or\n    (b) if the person is a body corporate—250 penalty units.\n  (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units.\n  (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit.\n  (5) In this section:\n\n> engage in conduct means:\n\n    (a) do an act; or\n    (b) omit to perform an act.\n\n#### 23 Indictable offences\n\n  (1) Subject to subsection (2), the following offences are indictable offences:\n    (a) an offence referred to in subsection 22(1) or (2);\n    (b) an offence against:\n    (i) section 6 of the Crimes Act 1914; or\n    (ii) section 11.1, 11.4 or 11.5 of the Criminal Code;\n    in relation to an offence referred to in paragraph (a) of this subsection.\n  (2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.\n  (3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:\n    (a) if the person is a natural person—imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both; or\n    (b) if the person is a body corporate—a fine not exceeding 100 penalty units.\n\n#### 24 Evidence\n\n  (1) In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.\n  (2) For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.\n  (3) In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.\n\n#### 25 Body corporate responsible for acts of employees and agents\n\n  (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate:\n    (a) intends to do, or not to do, a particular act; or\n    (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II;\n  paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.\n  (2) Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, employee or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first‑mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.\n  (3) In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.\n  (4) In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.\n\n#### 26 Injunctions\n\n  (1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n    (a) a contravention of a provision of a declaration made under Part II;\n    (b) attempting to contravene such a provision;\n    (c) aiding, abetting, counselling or procuring a person to contravene such a provision;\n    (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;\n    (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n    (f) conspiring with others to contravene such a provision;\n  the Court may grant an injunction in such terms as the Court determines to be appropriate.\n  (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n  (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n  (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n    (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n    (b) whether or not the person has previously engaged in conduct of that kind; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person engages in conduct of that kind.\n  (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n    (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n    (b) whether or not the person has previously refused or failed to do that act or thing; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.\n\n#### 27 Proceedings in camera\n\n  In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:\n    (a) the interests of justice; and\n    (b) the interests of Aboriginal tradition;\n  order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.\n\n#### 28 Compensation for acquisition of property\n\n  (1) Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.\n  (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.\n\n#### 29 Powers of courts not limited\n\n  Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.\n\n#### 30 Legal assistance\n\n  (1) A person:\n    (a) who wishes to apply for a declaration under section 9, 10 or 12;\n    (b) who considers that his or her proprietary or pecuniary interests:\n    (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or\n    (ii) are adversely affected by a declaration so made; or\n    (c) against whom proceedings have been instituted:\n    (i) for an offence referred to in subsection 23(1); or\n    (ii) under section 26;\n  may apply to the Attorney‑General for a grant of assistance under subsection (2).\n  (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance as the Attorney‑General or public servant determines.\n\n## Part IV—Miscellaneous\n\n#### 31 Delegation\n\n  (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.\n  (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.\n  (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.\n  (4) In this section, declaration means a declaration made under Part II.\n\n#### 32 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":10},{"sectionNumber":"Division 1","sectionType":"division","heading":"Declarations by Minister","content":"An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.\n\n#### 2 Commencement\n\n  This Act shall come into operation on the day on which it receives the Royal Assent.\n\n#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.\n\n> Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:\n\n    (a) a body or the remains of a body:\n    (i) buried in accordance with the law of a State or Territory; or\n    (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;\n    (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or\n    (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.\n\n> Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.\n\n> area includes a site.\n\n> Australian waters means:\n\n    (a) the territorial sea of Australia and any sea on the landward side of that territorial sea;\n    (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or\n    (c) the sea over the continental shelf of Australia.\n\n> Federal Court means the Federal Court of Australia.\n\n> significant Aboriginal area means:\n\n    (a) an area of land in Australia or in or beneath Australian waters;\n    (b) an area of water in Australia; or\n    (c) an area of Australian waters;\n  being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n> significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n  (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:\n    (a) in the case of an area:\n    (i) it is used or treated in a manner inconsistent with Aboriginal tradition;\n    (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or\n    (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or\n    (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;\n  and references in this Act to injury or desecration shall be construed accordingly.\n  (3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.\n\n#### 4 Purposes of Act\n\n  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n#### 5 Extension to Territories\n\n  This Act extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n  This Act binds the Crown in each of its capacities.\n\n#### 6A Application of the Criminal Code\n\n  Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n#### 7 Application of other laws\n\n  (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.\n  (2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.\n  (3) Where:\n    (a) a law of a State or Territory deals with a matter dealt with in this Act; and\n    (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);\n  the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.\n  (4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.\n\n#### 8 Application of Act\n\n  (1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.\n  (2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.\n\n## Part II—Protection of significant Aboriginal areas and objects\n\n### Division 1—Declarations by Minister\n\n#### 9 Emergency declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under serious and immediate threat of injury or desecration;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.\n  (3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.\n\n#### 10 Other declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under threat of injury or desecration;\n    (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:\n    (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:\n    (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;\n    (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and\n    (iii) specifying an address to which such representations may be furnished; and\n    (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.\n  (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:\n    (a) the particular significance of the area to Aboriginals;\n    (b) the nature and extent of the threat of injury to, or desecration of, the area;\n    (c) the extent of the area that should be protected;\n    (d) the prohibitions and restrictions to be made with respect to the area;\n    (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);\n    (f) the duration of any declaration;\n    (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;\n    (h) such other matters (if any) as are prescribed.\n\n#### 11 Contents of declarations under section 9 or 10\n\n  A declaration under subsection 9(1) or 10(1) in relation to an area shall:\n    (a) describe the area with sufficient particulars to enable the area to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.\n\n#### 12 Declarations in relation to objects\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;\n    (b) is satisfied:\n    (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and\n    (ii) that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;\n    (c) has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) A declaration under subsection (1) in relation to an object or objects shall:\n    (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.\n  (3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:\n    (a) the Minister; or\n    (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.\n\n#### 13 Making of declarations\n\n  (1) In this section:\n\n> declaration means a declaration under this Division.\n\n  (2) The Minister shall not make a declaration in relation to an area, object or objects located in a State or the Northern Territory unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.\n  (3) The Minister may, at any time after receiving an application for a declaration, whether or not he or she has made a declaration pursuant to the application, request such persons as he or she considers appropriate to consult with him or her, or with a person nominated by him or her, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.\n  (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration.\n  (5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area, object or objects.\n  (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.\n\n#### 14 Publication and commencement of declarations\n\n  (1) A declaration under this Division:\n    (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and\n    (b) comes into operation on the day after the day of its registration under the Legislation Act 2003 or such later date as is specified in the declaration.\n  (2) As soon as practicable after making a declaration under this Division, the Minister shall:\n    (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and\n    (b) in the case of a declaration in relation to an area—serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it shall enter the area in the register.\n  (3) Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.\n\n#### 16 Refusal to make declaration\n\n  Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.\n\n### Division 2—Declarations by authorized officers\n\n#### 17 Authorised officers\n\n  (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.\n  (2) The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.\n  (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:\n    (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or\n    (b) in any other case—give that person such particulars of his or her identity card as are prescribed.\n  (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.\n\n#### 18 Emergency declarations in relation to areas or objects\n\n  (1) Where:\n    (a) at any time, an authorized officer is satisfied that:\n    (i) an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;\n    (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and\n    (iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and\n    (b) no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);\n  the officer may make a declaration for the purposes of this section.\n  (2) A declaration under subsection (1):\n    (a) shall be in writing;\n    (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect;\n    (c) shall:\n    (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or\n    (ii) where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (d) shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.\n  (2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (2B) A declaration under subsection (1) is not a legislative instrument.\n  (3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.\n\n#### 19 Notification of declarations\n\n  (1) An authorized officer shall, as soon as practicable after making a declaration under section 18:\n    (a) in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and\n    (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.\n  (2) Any failure to comply with subsection (1) does not invalidate a declaration.\n\n### Division 3—Discovery and disposal of Aboriginal remains\n\n#### 20 Discovery of Aboriginal remains\n\n  (1) A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.\n  (2) Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.\n\n#### 21 Disposal of Aboriginal remains\n\n  (1) Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:\n    (a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;\n    (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or\n    (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.\n  (2) Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.\n\n## Part III—Offences, penalties and legal proceedings\n\n#### 22 Offences and penalties\n\n  (1) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or\n    (b) if the person is a body corporate—500 penalty units.\n  (2) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or\n    (b) if the person is a body corporate—250 penalty units.\n  (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units.\n  (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit.\n  (5) In this section:\n\n> engage in conduct means:\n\n    (a) do an act; or\n    (b) omit to perform an act.\n\n#### 23 Indictable offences\n\n  (1) Subject to subsection (2), the following offences are indictable offences:\n    (a) an offence referred to in subsection 22(1) or (2);\n    (b) an offence against:\n    (i) section 6 of the Crimes Act 1914; or\n    (ii) section 11.1, 11.4 or 11.5 of the Criminal Code;\n    in relation to an offence referred to in paragraph (a) of this subsection.\n  (2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.\n  (3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:\n    (a) if the person is a natural person—imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both; or\n    (b) if the person is a body corporate—a fine not exceeding 100 penalty units.\n\n#### 24 Evidence\n\n  (1) In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.\n  (2) For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.\n  (3) In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.\n\n#### 25 Body corporate responsible for acts of employees and agents\n\n  (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate:\n    (a) intends to do, or not to do, a particular act; or\n    (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II;\n  paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.\n  (2) Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, employee or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first‑mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.\n  (3) In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.\n  (4) In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.\n\n#### 26 Injunctions\n\n  (1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n    (a) a contravention of a provision of a declaration made under Part II;\n    (b) attempting to contravene such a provision;\n    (c) aiding, abetting, counselling or procuring a person to contravene such a provision;\n    (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;\n    (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n    (f) conspiring with others to contravene such a provision;\n  the Court may grant an injunction in such terms as the Court determines to be appropriate.\n  (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n  (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n  (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n    (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n    (b) whether or not the person has previously engaged in conduct of that kind; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person engages in conduct of that kind.\n  (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n    (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n    (b) whether or not the person has previously refused or failed to do that act or thing; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.\n\n#### 27 Proceedings in camera\n\n  In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:\n    (a) the interests of justice; and\n    (b) the interests of Aboriginal tradition;\n  order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.\n\n#### 28 Compensation for acquisition of property\n\n  (1) Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.\n  (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.\n\n#### 29 Powers of courts not limited\n\n  Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.\n\n#### 30 Legal assistance\n\n  (1) A person:\n    (a) who wishes to apply for a declaration under section 9, 10 or 12;\n    (b) who considers that his or her proprietary or pecuniary interests:\n    (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or\n    (ii) are adversely affected by a declaration so made; or\n    (c) against whom proceedings have been instituted:\n    (i) for an offence referred to in subsection 23(1); or\n    (ii) under section 26;\n  may apply to the Attorney‑General for a grant of assistance under subsection (2).\n  (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance as the Attorney‑General or public servant determines.\n\n## Part IV—Miscellaneous\n\n#### 31 Delegation\n\n  (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.\n  (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.\n  (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.\n  (4) In this section, declaration means a declaration made under Part II.\n\n#### 32 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":11},{"sectionNumber":"9","sectionType":"section","heading":"Emergency declarations in relation to areas","content":"#### 9 Emergency declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under serious and immediate threat of injury or desecration;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.\n  (3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.","sortOrder":12},{"sectionNumber":"10","sectionType":"section","heading":"Other declarations in relation to areas","content":"#### 10 Other declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under threat of injury or desecration;\n    (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:\n    (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:\n    (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;\n    (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and\n    (iii) specifying an address to which such representations may be furnished; and\n    (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.\n  (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:\n    (a) the particular significance of the area to Aboriginals;\n    (b) the nature and extent of the threat of injury to, or desecration of, the area;\n    (c) the extent of the area that should be protected;\n    (d) the prohibitions and restrictions to be made with respect to the area;\n    (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);\n    (f) the duration of any declaration;\n    (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;\n    (h) such other matters (if any) as are prescribed.","sortOrder":13},{"sectionNumber":"11","sectionType":"section","heading":"Contents of declarations under section 9 or 10","content":"#### 11 Contents of declarations under section 9 or 10\n\n  A declaration under subsection 9(1) or 10(1) in relation to an area shall:\n    (a) describe the area with sufficient particulars to enable the area to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.","sortOrder":14},{"sectionNumber":"12","sectionType":"section","heading":"Declarations in relation to objects","content":"#### 12 Declarations in relation to objects\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;\n    (b) is satisfied:\n    (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and\n    (ii) that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;\n    (c) has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) A declaration under subsection (1) in relation to an object or objects shall:\n    (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.\n  (3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:\n    (a) the Minister; or\n    (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.","sortOrder":15},{"sectionNumber":"13","sectionType":"section","heading":"Making of declarations","content":"#### 13 Making of declarations\n\n  (1) In this section:\n\n> declaration means a declaration under this Division.\n\n  (2) The Minister shall not make a declaration in relation to an area, object or objects located in a State or the Northern Territory unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.\n  (3) The Minister may, at any time after receiving an application for a declaration, whether or not he or she has made a declaration pursuant to the application, request such persons as he or she considers appropriate to consult with him or her, or with a person nominated by him or her, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.\n  (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration.\n  (5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area, object or objects.\n  (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.","sortOrder":16},{"sectionNumber":"14","sectionType":"section","heading":"Publication and commencement of declarations","content":"#### 14 Publication and commencement of declarations\n\n  (1) A declaration under this Division:\n    (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and\n    (b) comes into operation on the day after the day of its registration under the Legislation Act 2003 or such later date as is specified in the declaration.\n  (2) As soon as practicable after making a declaration under this Division, the Minister shall:\n    (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and\n    (b) in the case of a declaration in relation to an area—serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it shall enter the area in the register.\n  (3) Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.","sortOrder":17},{"sectionNumber":"16","sectionType":"section","heading":"Refusal to make declaration","content":"#### 16 Refusal to make declaration\n\n  Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.","sortOrder":18},{"sectionNumber":"Division 2","sectionType":"division","heading":"Declarations by authorized officers","content":"An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.\n\n#### 2 Commencement\n\n  This Act shall come into operation on the day on which it receives the Royal Assent.\n\n#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.\n\n> Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:\n\n    (a) a body or the remains of a body:\n    (i) buried in accordance with the law of a State or Territory; or\n    (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;\n    (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or\n    (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.\n\n> Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.\n\n> area includes a site.\n\n> Australian waters means:\n\n    (a) the territorial sea of Australia and any sea on the landward side of that territorial sea;\n    (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or\n    (c) the sea over the continental shelf of Australia.\n\n> Federal Court means the Federal Court of Australia.\n\n> significant Aboriginal area means:\n\n    (a) an area of land in Australia or in or beneath Australian waters;\n    (b) an area of water in Australia; or\n    (c) an area of Australian waters;\n  being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n> significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n  (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:\n    (a) in the case of an area:\n    (i) it is used or treated in a manner inconsistent with Aboriginal tradition;\n    (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or\n    (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or\n    (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;\n  and references in this Act to injury or desecration shall be construed accordingly.\n  (3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.\n\n#### 4 Purposes of Act\n\n  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n#### 5 Extension to Territories\n\n  This Act extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n  This Act binds the Crown in each of its capacities.\n\n#### 6A Application of the Criminal Code\n\n  Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n#### 7 Application of other laws\n\n  (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.\n  (2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.\n  (3) Where:\n    (a) a law of a State or Territory deals with a matter dealt with in this Act; and\n    (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);\n  the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.\n  (4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.\n\n#### 8 Application of Act\n\n  (1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.\n  (2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.\n\n## Part II—Protection of significant Aboriginal areas and objects\n\n### Division 1—Declarations by Minister\n\n#### 9 Emergency declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under serious and immediate threat of injury or desecration;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.\n  (3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.\n\n#### 10 Other declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under threat of injury or desecration;\n    (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:\n    (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:\n    (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;\n    (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and\n    (iii) specifying an address to which such representations may be furnished; and\n    (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.\n  (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:\n    (a) the particular significance of the area to Aboriginals;\n    (b) the nature and extent of the threat of injury to, or desecration of, the area;\n    (c) the extent of the area that should be protected;\n    (d) the prohibitions and restrictions to be made with respect to the area;\n    (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);\n    (f) the duration of any declaration;\n    (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;\n    (h) such other matters (if any) as are prescribed.\n\n#### 11 Contents of declarations under section 9 or 10\n\n  A declaration under subsection 9(1) or 10(1) in relation to an area shall:\n    (a) describe the area with sufficient particulars to enable the area to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.\n\n#### 12 Declarations in relation to objects\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;\n    (b) is satisfied:\n    (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and\n    (ii) that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;\n    (c) has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) A declaration under subsection (1) in relation to an object or objects shall:\n    (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.\n  (3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:\n    (a) the Minister; or\n    (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.\n\n#### 13 Making of declarations\n\n  (1) In this section:\n\n> declaration means a declaration under this Division.\n\n  (2) The Minister shall not make a declaration in relation to an area, object or objects located in a State or the Northern Territory unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.\n  (3) The Minister may, at any time after receiving an application for a declaration, whether or not he or she has made a declaration pursuant to the application, request such persons as he or she considers appropriate to consult with him or her, or with a person nominated by him or her, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.\n  (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration.\n  (5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area, object or objects.\n  (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.\n\n#### 14 Publication and commencement of declarations\n\n  (1) A declaration under this Division:\n    (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and\n    (b) comes into operation on the day after the day of its registration under the Legislation Act 2003 or such later date as is specified in the declaration.\n  (2) As soon as practicable after making a declaration under this Division, the Minister shall:\n    (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and\n    (b) in the case of a declaration in relation to an area—serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it shall enter the area in the register.\n  (3) Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.\n\n#### 16 Refusal to make declaration\n\n  Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.\n\n### Division 2—Declarations by authorized officers\n\n#### 17 Authorised officers\n\n  (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.\n  (2) The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.\n  (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:\n    (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or\n    (b) in any other case—give that person such particulars of his or her identity card as are prescribed.\n  (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.\n\n#### 18 Emergency declarations in relation to areas or objects\n\n  (1) Where:\n    (a) at any time, an authorized officer is satisfied that:\n    (i) an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;\n    (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and\n    (iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and\n    (b) no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);\n  the officer may make a declaration for the purposes of this section.\n  (2) A declaration under subsection (1):\n    (a) shall be in writing;\n    (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect;\n    (c) shall:\n    (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or\n    (ii) where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (d) shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.\n  (2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (2B) A declaration under subsection (1) is not a legislative instrument.\n  (3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.\n\n#### 19 Notification of declarations\n\n  (1) An authorized officer shall, as soon as practicable after making a declaration under section 18:\n    (a) in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and\n    (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.\n  (2) Any failure to comply with subsection (1) does not invalidate a declaration.\n\n### Division 3—Discovery and disposal of Aboriginal remains\n\n#### 20 Discovery of Aboriginal remains\n\n  (1) A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.\n  (2) Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.\n\n#### 21 Disposal of Aboriginal remains\n\n  (1) Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:\n    (a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;\n    (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or\n    (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.\n  (2) Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.\n\n## Part III—Offences, penalties and legal proceedings\n\n#### 22 Offences and penalties\n\n  (1) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or\n    (b) if the person is a body corporate—500 penalty units.\n  (2) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or\n    (b) if the person is a body corporate—250 penalty units.\n  (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units.\n  (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit.\n  (5) In this section:\n\n> engage in conduct means:\n\n    (a) do an act; or\n    (b) omit to perform an act.\n\n#### 23 Indictable offences\n\n  (1) Subject to subsection (2), the following offences are indictable offences:\n    (a) an offence referred to in subsection 22(1) or (2);\n    (b) an offence against:\n    (i) section 6 of the Crimes Act 1914; or\n    (ii) section 11.1, 11.4 or 11.5 of the Criminal Code;\n    in relation to an offence referred to in paragraph (a) of this subsection.\n  (2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.\n  (3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:\n    (a) if the person is a natural person—imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both; or\n    (b) if the person is a body corporate—a fine not exceeding 100 penalty units.\n\n#### 24 Evidence\n\n  (1) In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.\n  (2) For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.\n  (3) In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.\n\n#### 25 Body corporate responsible for acts of employees and agents\n\n  (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate:\n    (a) intends to do, or not to do, a particular act; or\n    (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II;\n  paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.\n  (2) Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, employee or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first‑mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.\n  (3) In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.\n  (4) In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.\n\n#### 26 Injunctions\n\n  (1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n    (a) a contravention of a provision of a declaration made under Part II;\n    (b) attempting to contravene such a provision;\n    (c) aiding, abetting, counselling or procuring a person to contravene such a provision;\n    (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;\n    (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n    (f) conspiring with others to contravene such a provision;\n  the Court may grant an injunction in such terms as the Court determines to be appropriate.\n  (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n  (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n  (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n    (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n    (b) whether or not the person has previously engaged in conduct of that kind; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person engages in conduct of that kind.\n  (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n    (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n    (b) whether or not the person has previously refused or failed to do that act or thing; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.\n\n#### 27 Proceedings in camera\n\n  In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:\n    (a) the interests of justice; and\n    (b) the interests of Aboriginal tradition;\n  order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.\n\n#### 28 Compensation for acquisition of property\n\n  (1) Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.\n  (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.\n\n#### 29 Powers of courts not limited\n\n  Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.\n\n#### 30 Legal assistance\n\n  (1) A person:\n    (a) who wishes to apply for a declaration under section 9, 10 or 12;\n    (b) who considers that his or her proprietary or pecuniary interests:\n    (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or\n    (ii) are adversely affected by a declaration so made; or\n    (c) against whom proceedings have been instituted:\n    (i) for an offence referred to in subsection 23(1); or\n    (ii) under section 26;\n  may apply to the Attorney‑General for a grant of assistance under subsection (2).\n  (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance as the Attorney‑General or public servant determines.\n\n## Part IV—Miscellaneous\n\n#### 31 Delegation\n\n  (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.\n  (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.\n  (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.\n  (4) In this section, declaration means a declaration made under Part II.\n\n#### 32 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":19},{"sectionNumber":"17","sectionType":"section","heading":"Authorised officers","content":"#### 17 Authorised officers\n\n  (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.\n  (2) The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.\n  (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:\n    (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or\n    (b) in any other case—give that person such particulars of his or her identity card as are prescribed.\n  (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.","sortOrder":20},{"sectionNumber":"18","sectionType":"section","heading":"Emergency declarations in relation to areas or objects","content":"#### 18 Emergency declarations in relation to areas or objects\n\n  (1) Where:\n    (a) at any time, an authorized officer is satisfied that:\n    (i) an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;\n    (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and\n    (iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and\n    (b) no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);\n  the officer may make a declaration for the purposes of this section.\n  (2) A declaration under subsection (1):\n    (a) shall be in writing;\n    (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect;\n    (c) shall:\n    (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or\n    (ii) where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (d) shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.\n  (2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (2B) A declaration under subsection (1) is not a legislative instrument.\n  (3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.","sortOrder":21},{"sectionNumber":"19","sectionType":"section","heading":"Notification of declarations","content":"#### 19 Notification of declarations\n\n  (1) An authorized officer shall, as soon as practicable after making a declaration under section 18:\n    (a) in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and\n    (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.\n  (2) Any failure to comply with subsection (1) does not invalidate a declaration.","sortOrder":22},{"sectionNumber":"Division 3","sectionType":"division","heading":"Discovery and disposal of Aboriginal remains","content":"An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes\n\n## Part I—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.\n\n#### 2 Commencement\n\n  This Act shall come into operation on the day on which it receives the Royal Assent.\n\n#### 3 Interpretation\n\n  (1) In this Act, unless the contrary intention appears:\n\n> Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.\n\n> Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:\n\n    (a) a body or the remains of a body:\n    (i) buried in accordance with the law of a State or Territory; or\n    (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;\n    (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or\n    (c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.\n\n> Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.\n\n> area includes a site.\n\n> Australian waters means:\n\n    (a) the territorial sea of Australia and any sea on the landward side of that territorial sea;\n    (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or\n    (c) the sea over the continental shelf of Australia.\n\n> Federal Court means the Federal Court of Australia.\n\n> significant Aboriginal area means:\n\n    (a) an area of land in Australia or in or beneath Australian waters;\n    (b) an area of water in Australia; or\n    (c) an area of Australian waters;\n  being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n> significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n  (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:\n    (a) in the case of an area:\n    (i) it is used or treated in a manner inconsistent with Aboriginal tradition;\n    (ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or\n    (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or\n    (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;\n  and references in this Act to injury or desecration shall be construed accordingly.\n  (3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.\n\n#### 4 Purposes of Act\n\n  The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.\n\n#### 5 Extension to Territories\n\n  This Act extends to every external Territory.\n\n#### 6 Act binds the Crown\n\n  This Act binds the Crown in each of its capacities.\n\n#### 6A Application of the Criminal Code\n\n  Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.\n\n> Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.\n\n#### 7 Application of other laws\n\n  (1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.\n  (2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.\n  (3) Where:\n    (a) a law of a State or Territory deals with a matter dealt with in this Act; and\n    (b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);\n  the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.\n  (4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.\n\n#### 8 Application of Act\n\n  (1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.\n  (2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.\n\n## Part II—Protection of significant Aboriginal areas and objects\n\n### Division 1—Declarations by Minister\n\n#### 9 Emergency declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under serious and immediate threat of injury or desecration;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.\n  (3) The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.\n\n#### 10 Other declarations in relation to areas\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;\n    (b) is satisfied:\n    (i) that the area is a significant Aboriginal area; and\n    (ii) that it is under threat of injury or desecration;\n    (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the area.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:\n    (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:\n    (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;\n    (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and\n    (iii) specifying an address to which such representations may be furnished; and\n    (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report.\n  (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:\n    (a) the particular significance of the area to Aboriginals;\n    (b) the nature and extent of the threat of injury to, or desecration of, the area;\n    (c) the extent of the area that should be protected;\n    (d) the prohibitions and restrictions to be made with respect to the area;\n    (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);\n    (f) the duration of any declaration;\n    (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;\n    (h) such other matters (if any) as are prescribed.\n\n#### 11 Contents of declarations under section 9 or 10\n\n  A declaration under subsection 9(1) or 10(1) in relation to an area shall:\n    (a) describe the area with sufficient particulars to enable the area to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration.\n\n#### 12 Declarations in relation to objects\n\n  (1) Where the Minister:\n    (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;\n    (b) is satisfied:\n    (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and\n    (ii) that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;\n    (c) has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and\n    (d) has considered such other matters as he or she thinks relevant;\n  he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.\n  (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.\n  (3) A declaration under subsection (1) in relation to an object or objects shall:\n    (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.\n  (3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:\n    (a) the Minister; or\n    (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition.\n\n#### 13 Making of declarations\n\n  (1) In this section:\n\n> declaration means a declaration under this Division.\n\n  (2) The Minister shall not make a declaration in relation to an area, object or objects located in a State or the Northern Territory unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.\n  (3) The Minister may, at any time after receiving an application for a declaration, whether or not he or she has made a declaration pursuant to the application, request such persons as he or she considers appropriate to consult with him or her, or with a person nominated by him or her, with a view to resolving, to the satisfaction of the applicant or applicants and the Minister, any matter to which the application relates.\n  (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration.\n  (5) Where the Minister is satisfied that the law of a State or of any Territory makes effective provision for the protection of an area, object or objects to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area, object or objects.\n  (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time.\n\n#### 14 Publication and commencement of declarations\n\n  (1) A declaration under this Division:\n    (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and\n    (b) comes into operation on the day after the day of its registration under the Legislation Act 2003 or such later date as is specified in the declaration.\n  (2) As soon as practicable after making a declaration under this Division, the Minister shall:\n    (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and\n    (b) in the case of a declaration in relation to an area—serve a copy of the declaration on the Australian Institute of Aboriginal Studies and, if the Institute maintains a register of significant Aboriginal areas, it shall enter the area in the register.\n  (3) Any failure to publish a declaration in a newspaper or failure to comply with subsection (2) does not affect the validity of a declaration.\n\n#### 16 Refusal to make declaration\n\n  Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.\n\n### Division 2—Declarations by authorized officers\n\n#### 17 Authorised officers\n\n  (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.\n  (2) The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.\n  (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:\n    (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or\n    (b) in any other case—give that person such particulars of his or her identity card as are prescribed.\n  (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.\n\n#### 18 Emergency declarations in relation to areas or objects\n\n  (1) Where:\n    (a) at any time, an authorized officer is satisfied that:\n    (i) an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;\n    (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and\n    (iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and\n    (b) no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);\n  the officer may make a declaration for the purposes of this section.\n  (2) A declaration under subsection (1):\n    (a) shall be in writing;\n    (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect;\n    (c) shall:\n    (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or\n    (ii) where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and\n    (d) shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.\n  (2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.\n  (2B) A declaration under subsection (1) is not a legislative instrument.\n  (3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.\n\n#### 19 Notification of declarations\n\n  (1) An authorized officer shall, as soon as practicable after making a declaration under section 18:\n    (a) in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and\n    (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.\n  (2) Any failure to comply with subsection (1) does not invalidate a declaration.\n\n### Division 3—Discovery and disposal of Aboriginal remains\n\n#### 20 Discovery of Aboriginal remains\n\n  (1) A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.\n  (2) Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.\n\n#### 21 Disposal of Aboriginal remains\n\n  (1) Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:\n    (a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;\n    (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or\n    (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.\n  (2) Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.\n\n## Part III—Offences, penalties and legal proceedings\n\n#### 22 Offences and penalties\n\n  (1) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or\n    (b) if the person is a body corporate—500 penalty units.\n  (2) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or\n    (b) if the person is a body corporate—250 penalty units.\n  (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units.\n  (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit.\n  (5) In this section:\n\n> engage in conduct means:\n\n    (a) do an act; or\n    (b) omit to perform an act.\n\n#### 23 Indictable offences\n\n  (1) Subject to subsection (2), the following offences are indictable offences:\n    (a) an offence referred to in subsection 22(1) or (2);\n    (b) an offence against:\n    (i) section 6 of the Crimes Act 1914; or\n    (ii) section 11.1, 11.4 or 11.5 of the Criminal Code;\n    in relation to an offence referred to in paragraph (a) of this subsection.\n  (2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.\n  (3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:\n    (a) if the person is a natural person—imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both; or\n    (b) if the person is a body corporate—a fine not exceeding 100 penalty units.\n\n#### 24 Evidence\n\n  (1) In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.\n  (2) For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.\n  (3) In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.\n\n#### 25 Body corporate responsible for acts of employees and agents\n\n  (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate:\n    (a) intends to do, or not to do, a particular act; or\n    (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II;\n  paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.\n  (2) Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, employee or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first‑mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.\n  (3) In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.\n  (4) In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.\n\n#### 26 Injunctions\n\n  (1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n    (a) a contravention of a provision of a declaration made under Part II;\n    (b) attempting to contravene such a provision;\n    (c) aiding, abetting, counselling or procuring a person to contravene such a provision;\n    (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;\n    (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n    (f) conspiring with others to contravene such a provision;\n  the Court may grant an injunction in such terms as the Court determines to be appropriate.\n  (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n  (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n  (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n    (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n    (b) whether or not the person has previously engaged in conduct of that kind; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person engages in conduct of that kind.\n  (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n    (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n    (b) whether or not the person has previously refused or failed to do that act or thing; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.\n\n#### 27 Proceedings in camera\n\n  In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:\n    (a) the interests of justice; and\n    (b) the interests of Aboriginal tradition;\n  order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.\n\n#### 28 Compensation for acquisition of property\n\n  (1) Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.\n  (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.\n\n#### 29 Powers of courts not limited\n\n  Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.\n\n#### 30 Legal assistance\n\n  (1) A person:\n    (a) who wishes to apply for a declaration under section 9, 10 or 12;\n    (b) who considers that his or her proprietary or pecuniary interests:\n    (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or\n    (ii) are adversely affected by a declaration so made; or\n    (c) against whom proceedings have been instituted:\n    (i) for an offence referred to in subsection 23(1); or\n    (ii) under section 26;\n  may apply to the Attorney‑General for a grant of assistance under subsection (2).\n  (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance as the Attorney‑General or public servant determines.\n\n## Part IV—Miscellaneous\n\n#### 31 Delegation\n\n  (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.\n  (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.\n  (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.\n  (4) In this section, declaration means a declaration made under Part II.\n\n#### 32 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":23},{"sectionNumber":"20","sectionType":"section","heading":"Discovery of Aboriginal remains","content":"#### 20 Discovery of Aboriginal remains\n\n  (1) A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.\n  (2) Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.","sortOrder":24},{"sectionNumber":"21","sectionType":"section","heading":"Disposal of Aboriginal remains","content":"#### 21 Disposal of Aboriginal remains\n\n  (1) Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:\n    (a) return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;\n    (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or\n    (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.\n  (2) Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.","sortOrder":25},{"sectionNumber":"Part III","sectionType":"part","heading":"Offences, penalties and legal proceedings","content":"## Part III—Offences, penalties and legal proceedings","sortOrder":26},{"sectionNumber":"22","sectionType":"section","heading":"Offences and penalties","content":"#### 22 Offences and penalties\n\n  (1) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or\n    (b) if the person is a body corporate—500 penalty units.\n  (2) A person commits an offence if:\n    (a) the person engages in conduct; and\n    (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.\n\nPenalty:\n\n    (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or\n    (b) if the person is a body corporate—250 penalty units.\n  (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units.\n  (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit.\n  (5) In this section:\n\n> engage in conduct means:\n\n    (a) do an act; or\n    (b) omit to perform an act.","sortOrder":27},{"sectionNumber":"23","sectionType":"section","heading":"Indictable offences","content":"#### 23 Indictable offences\n\n  (1) Subject to subsection (2), the following offences are indictable offences:\n    (a) an offence referred to in subsection 22(1) or (2);\n    (b) an offence against:\n    (i) section 6 of the Crimes Act 1914; or\n    (ii) section 11.1, 11.4 or 11.5 of the Criminal Code;\n    in relation to an offence referred to in paragraph (a) of this subsection.\n  (2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.\n  (3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:\n    (a) if the person is a natural person—imprisonment for a period not exceeding 12 months or a fine not exceeding 20 penalty units, or both; or\n    (b) if the person is a body corporate—a fine not exceeding 100 penalty units.","sortOrder":28},{"sectionNumber":"24","sectionType":"section","heading":"Evidence","content":"#### 24 Evidence\n\n  (1) In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.\n  (2) For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.\n  (3) In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.","sortOrder":29},{"sectionNumber":"25","sectionType":"section","heading":"Body corporate responsible for acts of employees and agents","content":"#### 25 Body corporate responsible for acts of employees and agents\n\n  (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate:\n    (a) intends to do, or not to do, a particular act; or\n    (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II;\n  paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.\n  (2) Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, employee or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first‑mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.\n  (3) In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.\n  (4) In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.","sortOrder":30},{"sectionNumber":"26","sectionType":"section","heading":"Injunctions","content":"#### 26 Injunctions\n\n  (1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:\n    (a) a contravention of a provision of a declaration made under Part II;\n    (b) attempting to contravene such a provision;\n    (c) aiding, abetting, counselling or procuring a person to contravene such a provision;\n    (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;\n    (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or\n    (f) conspiring with others to contravene such a provision;\n  the Court may grant an injunction in such terms as the Court determines to be appropriate.\n  (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).\n  (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).\n  (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:\n    (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;\n    (b) whether or not the person has previously engaged in conduct of that kind; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person engages in conduct of that kind.\n  (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:\n    (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;\n    (b) whether or not the person has previously refused or failed to do that act or thing; and\n    (c) whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.","sortOrder":31},{"sectionNumber":"27","sectionType":"section","heading":"Proceedings in camera","content":"#### 27 Proceedings in camera\n\n  In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:\n    (a) the interests of justice; and\n    (b) the interests of Aboriginal tradition;\n  order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.","sortOrder":32},{"sectionNumber":"28","sectionType":"section","heading":"Compensation for acquisition of property","content":"#### 28 Compensation for acquisition of property\n\n  (1) Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.\n  (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.","sortOrder":33},{"sectionNumber":"29","sectionType":"section","heading":"Powers of courts not limited","content":"#### 29 Powers of courts not limited\n\n  Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.","sortOrder":34},{"sectionNumber":"30","sectionType":"section","heading":"Legal assistance","content":"#### 30 Legal assistance\n\n  (1) A person:\n    (a) who wishes to apply for a declaration under section 9, 10 or 12;\n    (b) who considers that his or her proprietary or pecuniary interests:\n    (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or\n    (ii) are adversely affected by a declaration so made; or\n    (c) against whom proceedings have been instituted:\n    (i) for an offence referred to in subsection 23(1); or\n    (ii) under section 26;\n  may apply to the Attorney‑General for a grant of assistance under subsection (2).\n  (2) Where an application is made by a person under subsection (1), the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney‑General or public servant determines, of such legal or financial assistance as the Attorney‑General or public servant determines.","sortOrder":35},{"sectionNumber":"Part IV","sectionType":"part","heading":"Miscellaneous","content":"## Part IV—Miscellaneous","sortOrder":36},{"sectionNumber":"31","sectionType":"section","heading":"Delegation","content":"#### 31 Delegation\n\n  (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.\n  (2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.\n  (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.\n  (4) In this section, declaration means a declaration made under Part II.","sortOrder":37},{"sectionNumber":"32","sectionType":"section","heading":"Regulations","content":"#### 32 Regulations\n\n  The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":38}],"analysis":{"summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Act remains tightly focused on its stated purpose: preserving and protecting areas and objects of particular significance to Aboriginal and Torres Strait Islander peoples from injury or desecration. There is no evidence of material scope creep. The inclusion of ancestral remains, underwater areas, and objects is consistent with a broad but coherent reading of 'heritage protection'. The interaction with export controls and the Protection of Movable Cultural Heritage Act 1986 reflects logical cross-referencing rather than expansion beyond original intent."},"complexity_factors":["Multiple overlapping declaration mechanisms (Ministerial emergency declarations, standard Ministerial declarations, and authorised officer emergency declarations) with different time limits and procedural requirements","Intricate interaction between federal, State and Territory laws — the Act operates as a safety net but must give way to effective State/Territory protections, requiring ongoing assessment","Culturally subjective key concepts — 'significant Aboriginal area/object' and 'injury or desecration' are defined by reference to Aboriginal tradition, which varies by community and is not reducible to fixed legal criteria","Layered procedural requirements for standard declarations (public notice, independent reports, consultation with State/Territory Ministers, representation periods) that must be satisfied before protection is granted","Constitutional property rights overlay — the compensation mechanism under s.28 references the Australian Constitution's 'just terms' requirement, adding a constitutional law dimension","Corporate liability provisions that attribute knowledge and conduct of employees and agents to the company, creating complex organisational liability questions","Interplay with the Protection of Movable Cultural Heritage Act 1986 regarding export certificates, requiring cross-legislation analysis","Evidence rules favouring defendants who lack knowledge of a declaration, creating fact-specific knowledge inquiries in prosecutions","Ministerial discretion is broad and largely unreviewable — failure to consult does not invalidate a declaration, which raises administrative law questions","Application to Australian waters including continental shelf areas adds a geographic and maritime law dimension"],"plain_english_summary":"## Aboriginal and Torres Strait Islander Heritage Protection Act 1984 — Plain English Summary\n\n### What does this law do?\n\nThis Act gives the Australian federal government (specifically the Minister for Indigenous Affairs) the power to **protect sacred sites, culturally significant land, water, and objects belonging to Aboriginal and Torres Strait Islander peoples** — including ancestral remains (human bones and body parts) — from damage, desecration, or misuse.\n\n### Who does it affect?\n\n- **Aboriginal and Torres Strait Islander people**: Can apply (orally or in writing) to have areas or objects protected. They are the primary beneficiaries of the law.\n- **Landowners, developers, miners, and businesses**: Can be legally stopped from using land or objects in ways that violate Aboriginal tradition — even if they own the land.\n- **Everyone in Australia (and on Australian waters)**: The law applies to all people and vessels, including foreigners.\n- **Government agencies**: The Crown (i.e., government bodies at all levels) is bound by this law.\n\n### What can the Minister do?\n\nThe Minister can issue **declarations** (formal legal orders) that:\n- **Protect specific areas** (sacred sites, burial grounds, land or underwater areas) from damage — either urgently (within 30–60 days) or on a longer-term basis after investigation.\n- **Protect specific objects** (cultural artefacts, sacred items, ancestral remains) from misuse or export.\n- **Order the return of ancestral remains** to Aboriginal communities.\n\nIn genuine emergencies, specially appointed **authorised officers** can issue short-term protection orders lasting up to **48 hours** — useful when destruction is about to happen right now and there's no time to wait for the Minister.\n\n### What's an 'injury or desecration'?\n\nUnder this law, an area or object is 'injured or desecrated' if it is:\n- Used in a way that goes against Aboriginal tradition;\n- Damaged or diminished in cultural significance by nearby activity; or\n- Entered or passed through in a way that Aboriginal tradition prohibits.\n\n### What are the penalties for breaking the rules?\n\nViolating a declaration (protection order) is a **serious criminal offence**:\n- **For individuals**: Up to **5 years in prison** and/or heavy fines for violating area protections; up to **2 years** for object protections.\n- **For companies**: Fines up to **500 penalty units** (approximately $165,000+ depending on the current rate) for area violations.\n- Courts can also issue **injunctions** (court orders stopping harmful activity before it happens).\n\nIf you stumble across what you think might be Aboriginal remains, **you must report it to the Minister** — failure to do so is also an offence (though a minor one).\n\n### What about property rights?\n\nIf a declaration effectively **takes away someone's property rights**, the Commonwealth must pay **fair compensation**. The Act tries to balance Indigenous heritage protection with the property rights of landowners and businesses.\n\n### How does it relate to State and Territory laws?\n\nThis is a **federal safety net**. It works alongside (not instead of) State and Territory heritage laws. If a State or Territory already has effective protection in place, the Minister should (and must) withdraw the federal declaration. If State protections fail or don't exist, the federal law can step in.\n\n### Legal assistance\n\nBoth Aboriginal applicants AND people whose financial interests are affected can apply to the Attorney-General for **legal or financial assistance** — acknowledging that these cases can be complex and costly.\n\n### Court proceedings\n\nCourts can hold **closed hearings** (excluding the public) to protect sensitive cultural information from being publicly disclosed during legal proceedings."},"issue_detection":{"absurdities":[{"type":"circular_definition","section":"s.3(1) - definition of 'Aboriginal remains' vs s.3(1) - definition of 'significant Aboriginal object'","severity":"medium","reasoning":"The exclusion in the 'Aboriginal remains' definition for traditionally buried remains removes protection precisely for remains that are most deeply embedded in Aboriginal tradition, undermining the Act's own stated purposes. The inclusion of remains in the 'significant Aboriginal object' definition only partially remedies this, creating definitional incoherence.","confidence":0.78,"description":"Aboriginal remains are expressly included within the definition of 'significant Aboriginal object', yet the definition of 'Aboriginal remains' specifically excludes remains buried in accordance with Aboriginal tradition (s.3(1)(a)(ii)). This creates a paradox: remains buried in an Aboriginal traditional burial ground are excluded from being 'Aboriginal remains', yet if they somehow qualify as a 'significant Aboriginal object', they receive protection. The most culturally significant remains — those interred according to tradition — are stripped of the most direct definitional protection."},{"type":"self_contradicting","section":"s.13(2) and s.13(4)","severity":"high","reasoning":"A mandatory prohibition with no legal consequence for breach is a logical nullity. The consultation requirement in s.13(2) is framed in imperative terms ('shall not') yet s.13(4) expressly removes the only meaningful sanction — invalidity. This creates an unenforceable obligation that exists in form only.","confidence":0.95,"description":"Section 13(2) imposes a mandatory obligation on the Minister ('shall not make a declaration') unless prior consultation with the relevant State or Territory Minister has occurred. Section 13(4) then immediately nullifies this obligation by stating that any failure to comply with s.13(2) does not invalidate the declaration. The 'shall not' obligation is rendered entirely hollow — it is simultaneously mandatory and consequence-free."},{"type":"other","section":"s.9(2) and s.9(3)","severity":"low","reasoning":"The temporal interaction between the 30-day cap and the 60-day outer limit creates uncertainty. If the Minister delays, the extension window shrinks unpredictably. More significantly, the provision does not cap the extension period itself — only the outer date — meaning a very short initial declaration could theoretically be extended for nearly 60 days, far exceeding the 'emergency' justification.","confidence":0.65,"description":"Section 9(2) limits an emergency declaration to a maximum of 30 days. Section 9(3) then permits an extension 'not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.' However, if the initial declaration ran for the full 30 days before the extension was made, the extension period available could be as little as 30 days (or zero if extension is sought at the end). The drafting does not clearly address whether the 60-day outer limit runs from commencement of the original declaration or from the grant of the extension, creating potential ambiguity about whether a late extension application is permissible at all."},{"type":"impossible_compliance","section":"s.18(1)(b)","severity":"medium","reasoning":"The legislative intent is to prevent abuse of emergency powers through repetitive declarations. However, the mechanism chosen — requiring officers to make a substantive legal judgment about threat similarity under time pressure in a genuine emergency — creates conditions where the precondition cannot be meaningfully satisfied before the threat materialises.","confidence":0.72,"description":"The 3-month bar on repeat authorised officer emergency declarations applies where a prior declaration was made 'by reason of a threat that is substantially the same.' An authorised officer must assess whether a current threat is 'substantially the same' as a prior threat to determine whether they have power to act at all. In a genuine emergency requiring immediate action within hours, requiring an officer to make a retrospective comparative legal assessment of threat similarity as a precondition to exercising emergency powers is a practical impossibility."},{"type":"other","section":"s.22(2)","severity":"high","reasoning":"This appears to be a drafting error — s.22(1) correctly refers to 'a declaration made under Part II' for areas, but s.22(2) refers to 'a declaration under this Part' (Part III) for objects. Since Part III contains no declaration-making power, the offence provision for objects may be unenforceable as drafted, as there can never be a 'declaration under this Part' to contravene.","confidence":0.88,"description":"Section 22(2) creates an offence for conduct contravening a declaration 'under this Part' (Part III — Offences) relating to significant Aboriginal objects. However, declarations in relation to objects are made under Part II (specifically s.12), not Part III. No declarations are made under Part III at all. The cross-reference is to a non-existent category of instrument."},{"type":"impossible_compliance","section":"s.14(1)(b) — emergency declarations under s.9","severity":"medium","reasoning":"If a site faces imminent destruction within hours, a declaration that cannot legally operate until the following day at earliest provides no practical protection. The emergency provisions of s.9 are rendered ineffective by the commencement rule in s.14(1)(b), which does not distinguish between emergency and non-emergency declarations.","confidence":0.82,"description":"Section 14(1)(b) provides that declarations under Division 1 commence 'on the day after the day of its registration under the Legislation Act 2003.' Section 9 is expressly designed to address 'serious and immediate threat of injury or desecration.' A mandatory minimum one-day delay before an emergency declaration takes legal effect is structurally incompatible with the emergency purpose the declaration is designed to serve."},{"type":"impossible_compliance","section":"s.8(1)","severity":"medium","reasoning":"Whilst s.8(2) subjects the Act to international law obligations, s.8(1) on its face purports jurisdiction over a vessel flagged in, say, Japan, crewed by non-Australians, in the middle of the Pacific Ocean, carrying a significant Aboriginal object. Enforcement is impossible and the claim to jurisdiction would not be recognised internationally.","confidence":0.75,"description":"Section 8(1) purports to apply the Act to 'all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.' This asserts extraterritorial jurisdiction over foreign vessels in foreign waters with respect to Aboriginal heritage protection — a claim that is both practically unenforceable and of highly questionable international legal validity, particularly for vessels that have no connection whatsoever to Australia."},{"type":"other","section":"s.3(2)(a)(ii)","severity":"medium","reasoning":"The combination of potentially vast area definitions, an undefined proximity standard ('near'), and criminal liability creates a situation where persons cannot determine with reasonable certainty whether their conduct falls within the prohibition. This raises both practical and rule-of-law concerns.","confidence":0.7,"description":"An area is 'injured or desecrated' if 'by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected.' The phrase 'near the area' is entirely undefined. Since a significant Aboriginal area can itself be of unlimited geographic extent, 'near' an already potentially vast area could encompass an enormous surrounding zone. Activities many kilometres distant from any identifiable boundary could theoretically constitute desecration, making the scope of criminal liability indeterminate."},{"type":"circular_definition","section":"s.21(1)(a) and s.21(1)(b)","severity":"low","reasoning":"The drafting of s.21(1)(a) and (b) creates a logical loop: (b) can only apply if there is an Aboriginal meeting the description in (a), but if such a person exists, (a) already applies. The provision appears intended to allow the Aboriginal to direct alternative handling rather than direct return, but the drafting does not clearly achieve this.","confidence":0.6,"description":"Section 21(1) requires the Minister to return remains to an Aboriginal 'entitled to, and willing to accept' possession in accordance with Aboriginal tradition (paragraph (a)), OR 'otherwise deal with the remains in accordance with any reasonable directions' of such a person (paragraph (b)). These are presented as sequential alternatives with 'or', but paragraph (b) only makes sense if paragraph (a) has not been satisfied — yet paragraph (b) also references an Aboriginal 'referred to in paragraph (a)'. If paragraph (a) is satisfied, paragraph (b) is redundant. If paragraph (a) is not satisfied, paragraph (b) has no operative subject."}],"contradictions":[{"severity":"high","section_a":"s.13(2) — mandatory consultation before declaration","section_b":"s.13(4) — failure to consult does not invalidate declaration","confidence":0.96,"description":"Section 13(2) imposes a mandatory prohibition: the Minister 'shall not' make a declaration without prior consultation with the relevant State or Territory Minister. Section 13(4) provides that any failure to comply with s.13(2) does not invalidate the declaration. These provisions directly contradict each other: one makes consultation a legal precondition to validity, the other removes invalidity as a consequence of failing that precondition."},{"severity":"medium","section_a":"s.7(1) — Act not intended to exclude concurrent State/Territory laws","section_b":"s.7(2) — Territory laws inconsistent with regulations or declarations have no effect","confidence":0.82,"description":"Section 7(1) states the Act is not intended to exclude or limit concurrent State or Territory laws. Section 7(2) then provides that Territory laws (notably not State laws) have effect only to the extent they are not inconsistent with regulations or declarations under the Act. This creates a direct contradiction: Territory laws are simultaneously preserved (s.7(1)) and subordinated (s.7(2)). States are treated differently from Territories without apparent justification, and Territory laws are both protected and overridden by the same Act."},{"severity":"high","section_a":"s.9(1) — Minister may make emergency declaration for 'serious and immediate threat'","section_b":"s.14(1)(b) — declaration commences day after registration","confidence":0.85,"description":"Section 9 authorises emergency declarations specifically premised on a 'serious and immediate threat' that justifies bypassing the ordinary s.10 process. Section 14(1)(b) then requires all Division 1 declarations to commence no earlier than the day after registration. An emergency declaration that cannot operate for at least one day — and potentially longer if registration is delayed — directly contradicts the emergency rationale that justifies the s.9 power in the first place."},{"severity":"high","section_a":"s.22(1) — offence references 'declaration made under Part II'","section_b":"s.22(2) — offence references 'declaration under this Part' (Part III)","confidence":0.88,"description":"Section 22(1) correctly grounds the area-protection offence in a 'declaration made under Part II.' Section 22(2) grounds the object-protection offence in 'a declaration under this Part' — i.e., Part III. Declarations are only made under Part II; Part III contains no declaration-making power. The two offence provisions apply inconsistent and irreconcilable cross-references to source instruments, with s.22(2)'s reference being to a legally non-existent category."},{"severity":"medium","section_a":"s.12(3A) — declaration cannot prevent export if export certificate exists","section_b":"s.4 — purposes include preservation and protection of objects of particular significance","confidence":0.78,"description":"Section 12(3A) (and identically s.18(2A)) provides that a declaration protecting a significant Aboriginal object cannot prevent its export if a certificate exists under the Protection of Movable Cultural Heritage Act 1986. This means the export certification regime of a separate Act can defeat the protective declaration regime of this Act, potentially allowing the permanent export and loss of a declared significant Aboriginal object. This directly contradicts the Act's stated purpose of preservation and protection of significant objects."},{"severity":"low","section_a":"s.13(5) — Minister shall revoke declaration where State/Territory law provides effective protection","section_b":"s.13(6) — nothing limits Minister's power to revoke or vary at any time","confidence":0.62,"description":"Section 13(5) creates a mandatory obligation to revoke a declaration upon satisfaction that State or Territory law provides effective protection. Section 13(6) then provides that nothing in s.13 limits the Minister's power to revoke at any time — implying revocation is always discretionary. The mandatory revocation obligation in s.13(5) is potentially undermined by the general discretionary revocation power affirmed in s.13(6), creating ambiguity about whether revocation in the s.13(5) scenario is truly mandatory or merely one available option."},{"severity":"medium","section_a":"s.8(1) — Act applies to all persons and vessels whether or not within Australia or Australian waters","section_b":"s.8(2) — Act has effect subject to obligations under international law","confidence":0.73,"description":"Section 8(1) asserts universal extraterritorial application of the Act. Section 8(2) subjects this to Australia's international law obligations, which include the principle that states generally cannot exercise jurisdiction over foreign vessels on the high seas. These provisions contradict each other: s.8(1) asserts a jurisdiction that s.8(2) simultaneously acknowledges may be prohibited under international law, making the actual scope of application of the Act indeterminate."},{"severity":"medium","section_a":"s.24(2) — Ministerial declarations proved by Gazette production","section_b":"s.24(1) — proof of declaration is prima facie evidence for proceedings including authorised officer declarations","confidence":0.8,"description":"Section 24(1) applies to 'proceedings for an offence referred to in subsection 23(1)', which encompasses contraventions of all Part II declarations including those made by authorised officers under s.18. Section 24(2) provides that Ministerial declarations may be proved by Gazette production. However, s.18(2B) expressly provides that authorised officer declarations are not legislative instruments and are therefore not registered or published in the Gazette. No evidentiary mechanism is provided to prove authorised officer declarations in criminal proceedings, leaving a gap in the prosecution framework for a significant category of declarations."}]},"kimi_summary":{"_metrics":{"provider":"moonshot","completionTokens":2275},"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The legislation remains focused on its original purpose of preserving and protecting areas and objects of particular significance to Aboriginal peoples according to Aboriginal tradition. While procedural mechanisms have been refined (such as the addition of references to the Protection of Movable Cultural Heritage Act 1986 and updated legislative instrument registration requirements), the core scope—providing federal declarations to protect threatened heritage and repatriate remains—has not expanded beyond this original intent. The Act continues to function as a 'last resort' mechanism when state and territory laws are inadequate, as evidenced by the consultation and revocation provisions in section 13."},"complexity_factors":["9 core defined terms in section 3(1), plus local definitions of 'declaration' (s 13(1)) and 'engage in conduct' (s 22(5))","Extensive cross-referencing to other legislation: Criminal Code (Chapter 2), Crimes Act 1914, Protection of Movable Cultural Heritage Act 1986, Legislation Act 2003, Public Service Act 1999, and Constitutional section 51(xxxi)","Nested conditional logic for declarations: sections 9, 10, 12 and 18 each require multiple cumulative conditions to be satisfied (e.g., 'serious and immediate threat' plus satisfaction of significance)","Complex concurrency provisions (s 7) determining how federal, state and territory laws interact, including 'capable of operating concurrently' tests","Attribution rules for body corporate liability (s 25) that deem the knowledge and intentions of directors, employees and agents to be those of the corporation","Multiple exceptions to invalidity: non-compliance with procedural steps (consultation, notification, publication) does not invalidate declarations (ss 13(4), 14(3), 19(2))","Tiered offence structure distinguishing between indictable offences (serious) and summary offences, with different penalties for natural persons versus body corporates, and provisions for consent to summary jurisdiction (s 23)","Evidentiary presumptions: a Gazette notice is prima facie evidence of significance (s 24), but there is a reverse burden regarding knowledge of declarations (s 24(3))"],"plain_english_summary":"**What this law does**\n\nThis Act protects Aboriginal and Torres Strait Islander cultural heritage—specifically sacred sites, significant areas, and culturally important objects (including human remains). It gives the federal government power to step in when these places or items are under threat of damage or desecration.\n\n**Who it affects**\n- **Aboriginal and Torres Strait Islander peoples**: Can apply to the Minister for protection of significant areas or objects.\n- **Landowners and developers**: May face restrictions if their land is declared protected.\n- **Everyone in Australia**: Including foreigners and companies. Breaking the rules is a criminal offence.\n- **State and Territory governments**: The Act works alongside their heritage laws but can override them if they don’t provide effective protection.\n\n**How it works**\n- **Declarations**: The Minister can make emergency declarations (up to 60 days) for immediate threats, or longer-term declarations for ongoing protection.\n- **Authorized officers**: Can issue short-term (48-hour) emergency protections on the spot.\n- **What’s protected**: “Significant Aboriginal areas” (land or water) and “significant Aboriginal objects” (including remains) that have particular importance according to **Aboriginal tradition** (the body of customs, beliefs and observances of Aboriginal communities).\n- **Injury or desecration**: Defined as using or treating an area or object in a way that goes against Aboriginal tradition, or entering a site inappropriately.\n- **Penalties**: Serious breaches attract up to 5 years imprisonment or heavy fines. Companies can be fined up to 500 penalty units.\n- **Remains**: Anyone discovering Aboriginal remains must report them to the Minister, who must arrange for their return to the appropriate community or safekeeping.\n- **Legal safeguards**: \n  - Courts can issue injunctions to stop damage.\n  - People can apply for legal assistance if they can’t afford lawyers.\n  - If the government effectively takes property through a declaration, compensation must be paid (“just terms”).\n  - Proceedings can be held **in camera** (in private) to protect sensitive cultural information.\n\n**Why it matters**\nThis Act provides a federal safety net to stop the destruction of irreplaceable cultural heritage when state or territory laws fail. It balances cultural protection with property rights, requiring consultation and offering compensation, while imposing serious criminal penalties for deliberate destruction."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The Act's operative scope aligns with its stated purpose (s4): preservation and protection of areas and objects of particular Aboriginal significance in Australia and Australian waters. The text grants the Commonwealth executive concrete protective powers (declarations, emergency officer powers, criminal penalties, injunctions) and builds procedural steps (publication, reports, consultation) and limits (export certificate exception s12(3A)/s18(2A), delegation carve‑outs s31, compensation s28). Those enforcement and remedial mechanisms expand the means by which the purpose is achieved but do not alter the Act's declared substantive aim; they extend operational reach (extraterritorial application to Australian waters and external Territories—s5, s8) and add enforcement and compensation layers that are consistent with, not contrary to, the Act's original purpose."},"complexity_factors":["High executive discretion: multiple \"satisfaction\" thresholds for the Minister and authorised officers to act (s9(1)(b), s10(1)(b), s12(1)(b), s18(1)(a)).","Multiple declaration types and timeframes: emergency Ministerial (s9: up to 30 days, extendable to 60), non‑emergency Ministerial (s10: unspecified duration), and authorised officer emergency declarations (s18: up to 48 hours).","Interplay with State/Territory laws: concurrent operation, consultation requirements, and non‑invalidating failure to consult create coordination complexity (s7, s13(2),(4)).","Criminal and civil enforcement mix: substantial criminal penalties (s22), indictable offences (s23), injunctive powers (s26) and prima facie evidentiary rules (s24).","Property and compensation regime: constitutionally‑sourced compensation for acquisitions (s28) introduces legal and valuation complexity.","Delegation and authorised officers: delegation permitted but with explicit carve‑outs (s31), and special identity and procedural rules for authorised officers (s17).","Export exception and interaction with other federal Acts (Protection of Movable Cultural Heritage Act 1986) (s12(3A), s18(2A)).","Administrative notice requirements and publication rules with non‑validation clauses (s14(1)–(3)), which affect procedural fairness and legal certainty.","Legal assistance discretion by the Attorney‑General introduces case‑by‑case variability (s30)."],"plain_english_summary":"What this law does (mechanics first)\n\n- Gives the Commonwealth Minister power to protect places and objects that are \"of particular significance to Aboriginals in accordance with Aboriginal tradition\" by making formal declarations (s9, s10, s12). Declarations are legislative instruments that describe the area/object and set prohibitions and protections (s11, s12(3)).\n- Provides two fast-response tools: an emergency Ministerial declaration for areas (up to 30 days, extendable to a 60‑day limit) (s9) and emergency declarations by authorised officers for areas or objects (up to 48 hours) where immediate action is needed (s18).\n- Requires publication and notice of declarations (Gazette and local newspaper) and steps to notify people likely to be substantially affected (s14(1)–(2)). Failure to publish or give notice does not invalidate a declaration (s14(3)).\n- Sets criminal offences and penalties for contravening declarations: for areas up to 5 years' imprisonment or fines for individuals and larger fines for corporations; for objects shorter terms and smaller fines (s22). Some offences are indictable (s23). Proof of a declaration is prima facie evidence of significance in proceedings (s24).\n- Enables the Federal Court to grant injunctions on the Minister's application to prevent or stop conduct that would or does contravene a declaration (s26).\n- Provides rules on discovery, custody and disposal of Aboriginal remains, including reporting obligations (s20) and directions for return or safekeeping (s21).\n- Preserves concurrent operation with State/Territory laws, requires the Minister to consult State/Territory Ministers before making a declaration about things in States/NT (s7, s13) but makes non‑compliance with the consultation requirement non‑invalidating (s13(4)).\n- Provides compensation by the Commonwealth where an operation of the Act or a declaration would otherwise acquire property other than on just terms (s28).\n- Authorises the Minister to delegate most powers (but not sections 9, 10, 12, s13(2) or s26) and allows designation of authorised officers (s31, s17).\n- Limits: a declaration cannot prevent export of an object when an export certificate under the Protection of Movable Cultural Heritage Act 1986 is in force (s12(3A), s18(2A)). The Act extends to external Territories and Australian waters (s5, definition of Australian waters).\n\nWho this affects\n\n- Aboriginal people and groups who can apply for protection and whose traditions determine what is \"significant\" (definitions in s3 and purpose in s4).\n- Landowners, occupiers, businesses and others who use or propose to use land, waters or objects that might be declared — they must comply with declaration conditions or face criminal penalties (s11, s12, s22).\n- Commonwealth officials: the Minister (decision‑maker for declarations), authorised officers (short emergency powers), the Attorney‑General (legal assistance discretion) and the Federal Court (injunctions and compensation disputes) (s9, s17, s30, s26, s28).\n- States and Territories, via consultation duties and concurrent law operation (s7, s13).\n\nWhy it matters (official rationale and practical tests)\n\n- The Act states its purpose as preserving and protecting areas and objects of particular Aboriginal significance from injury or desecration (s4). Mechanically, it achieves that by creating binding declarations that restrict or prohibit conduct affecting those areas/objects (s9–s12, s11).\n\nTesting that purpose against costs, incentives and trade‑offs in the text:\n\n- Who pays: the Commonwealth may pay compensation where a declaration (or Act operation) results in acquisition of property otherwise than on just terms (s28). Criminal penalties and fines are imposed on private parties who breach declarations (s22). The Attorney‑General may fund legal or financial assistance in hardship cases (s30).\n- Who decides and discretion: the Minister decides whether to make non‑emergency declarations (s10, s12) and must be \"satisfied\" of several facts (e.g. significance and threat) before acting; authorised officers have limited emergency discretion (s18). The Act leaves broad subjective assessments to the Minister/authorised officers (s9(1)(b), s10(1)(b), s12(1)(b), s18(1)(a)). Delegation is permitted for many powers, concentrating administrative discretion within the executive branch (s31).\n- Compliance burden on private parties: affected persons must observe prohibitions in declarations (s11, s12); persons who discover suspected Aboriginal remains must report to the Minister (s20). Failure to follow reporting or identification duties carries small fines (s22(3), s22(4)). Businesses and land users face criminal exposure (including imprisonment for individuals for serious breaches) if they contravene declarations (s22).\n- Interaction with other laws and double prosecutions: the Act permits concurrent operation with State/Territory laws (s7(1)) and provides that a person may be prosecuted under either regime but not punished more than once for the same act (s7(3)). The Minister must consult State/Territory Ministers about existing protections before declaring (s13(2)), but failure to consult does not invalidate a declaration (s13(4)). That creates both a coordination requirement and a residual Commonwealth power.\n- Market and property effects: declarations can restrict use of land/objects and may reduce or change proprietary value; the Act recognises this and provides for compensation by the Commonwealth where constitutionally required (s28). The Act also leaves open injunctive remedies and criminal sanctions (s26, s22), so potential regulatory cost to projects or owners can be immediate.\n- Limits and exceptions: declarations cannot stop export when an export certificate under the Protection of Movable Cultural Heritage Act 1986 exists (s12(3A), s18(2A)). The Act applies extraterritorially to Australian waters and external Territories (definition of Australian waters; s5; s8 on application), which widens operational reach consistent with the stated geographic scope.\n- Implementation and legal risk: the Act relies on executive satisfaction and short emergency windows (48 hours for officer declarations (s18), up to 30–60 days for Ministerial emergency declarations (s9)), which can create operational pressure and potential for legal challenges. The Act provides evidentiary rules (prima facie proof of a declaration (s24)) that ease enforcement in prosecutions but also requires the prosecution to prove knowledge in some circumstances (s24(3)).\n\nNet effect in practical terms\n\n- The Act centralises a power in the Commonwealth executive to protect places/objects of Aboriginal traditional significance on relatively short notice, with criminal sanctions and injunction remedies to enforce compliance. It balances that power with (a) procedural steps (publication, reports, consultation), (b) an express compensation mechanism where property acquisition otherwise occurs (s14, s10(3)(a)–(g), s13, s28), and (c) limited exceptions like the export certificate rule (s12(3A))."}},"importantCases":[],"_links":{"self":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984","history":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984/history","analysis":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984/analysis","conflicts":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984/conflicts","importantCases":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984/important-cases","documents":"/api/acts/aboriginal-and-torres-strait-islander-heritage-protection-act-1984/documents"}}