What it does
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 establishes a federal framework for the identification and protection of areas, objects and remains of particular significance to Aboriginal and Torres Strait Islander peoples where that significance arises under Aboriginal tradition. Section 4 states the purposes squarely: the preservation and protection from injury or desecration of such areas and objects in Australia and in Australian waters.
The Act operates primarily through a declaration mechanism set out in Part II. Under s 9 the Minister may issue an emergency declaration where an application is received from an Aboriginal or group of Aboriginals, the area is a significant Aboriginal area, and it faces a serious and immediate threat of injury or desecration. Such a declaration lasts no longer than 30 days and may be extended once for a further period that does not take the total beyond 60 days from the original commencement (s 9(3)). A more considered process is available under s 10. The Minister must be satisfied that the area is significant and under threat, must obtain a report from a nominated person that addresses the eight enumerated matters in s 10(4) (including the significance of the area, the nature of the threat, the extent of protection required, effects on third-party proprietary or pecuniary interests, and the adequacy of State or Territory remedies), and must consider public representations invited through Gazette and local newspaper notices giving at least 14 days for submissions.
Declarations under either s 9 or s 10 must describe the area with sufficient particularity and contain protective provisions (s 11). Parallel powers exist for objects. Section 12 permits declarations over significant Aboriginal objects or classes of objects, including Aboriginal remains. Such declarations may require delivery of remains to the Minister or to Aboriginal people entitled to them under tradition (s 12(4)). A declaration cannot, however, override an export certificate issued under s 12 of the Protection of Movable Cultural Heritage Act 1986 (s 12(3A)).