Division 3Discovery and disposal of Aboriginal remains

An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes ## Part I—Preliminary #### 1 Short title This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. #### 2 Commencement This Act shall come into operation on the day on which it receives the Royal Assent. #### 3 Interpretation (1) In this Act, unless the contrary intention appears: > Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands. > Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include: (a) a body or the remains of a body: (i) buried in accordance with the law of a State or Territory; or (ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground; (b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or (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. > 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. > area includes a site. > Australian waters means: (a) the territorial sea of Australia and any sea on the landward side of that territorial sea; (b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or (c) the sea over the continental shelf of Australia. > Federal Court means the Federal Court of Australia. > significant Aboriginal area means: (a) an area of land in Australia or in or beneath Australian waters; (b) an area of water in Australia; or (c) an area of Australian waters; being an area of particular significance to Aboriginals in accordance with Aboriginal tradition. > significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition. (2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if: (a) in the case of an area: (i) it is used or treated in a manner inconsistent with Aboriginal tradition; (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 (iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or (b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition; and references in this Act to injury or desecration shall be construed accordingly. (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. #### 4 Purposes of Act 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. #### 5 Extension to Territories This Act extends to every external Territory. #### 6 Act binds the Crown This Act binds the Crown in each of its capacities. #### 6A Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. #### 7 Application of other laws (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. (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. (3) Where: (a) a law of a State or Territory deals with a matter dealt with in this Act; and (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); 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. (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. #### 8 Application of Act (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. (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. ## Part II—Protection of significant Aboriginal areas and objects ### Division 1—Declarations by Minister #### 9 Emergency declarations in relation to areas (1) Where the Minister: (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 (b) is satisfied: (i) that the area is a significant Aboriginal area; and (ii) that it is under serious and immediate threat of injury or desecration; he or she may, by legislative instrument, make a declaration in relation to the area. (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. (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. #### 10 Other declarations in relation to areas (1) Where the Minister: (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; (b) is satisfied: (i) that the area is a significant Aboriginal area; and (ii) that it is under threat of injury or desecration; (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 (d) has considered such other matters as he or she thinks relevant; he or she may, by legislative instrument, make a declaration in relation to the area. (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration. (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall: (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice: (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report; (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 (iii) specifying an address to which such representations may be furnished; and (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report. (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters: (a) the particular significance of the area to Aboriginals; (b) the nature and extent of the threat of injury to, or desecration of, the area; (c) the extent of the area that should be protected; (d) the prohibitions and restrictions to be made with respect to the area; (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); (f) the duration of any declaration; (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; (h) such other matters (if any) as are prescribed. #### 11 Contents of declarations under section 9 or 10 A declaration under subsection 9(1) or 10(1) in relation to an area shall: (a) describe the area with sufficient particulars to enable the area to be identified; and (b) contain provisions for and in relation to the protection and preservation of the area from injury or desecration. #### 12 Declarations in relation to objects (1) Where the Minister: (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; (b) is satisfied: (i) that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and (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; (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 (d) has considered such other matters as he or she thinks relevant; 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. (2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration. (3) A declaration under subsection (1) in relation to an object or objects shall: (a) describe the object or objects with sufficient particulars to enable the object or objects to be identified; and (b) contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration. (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. (4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to: (a) the Minister; or (b) an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition. #### 13 Making of declarations (1) In this section: > declaration means a declaration under this Division. (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. (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. (4) Any failure to comply with subsection (2) does not invalidate the making of a declaration. (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. (6) Nothing in this section limits the power of the Minister to revoke or vary a declaration at any time. #### 14 Publication and commencement of declarations (1) A declaration under this Division: (a) shall be published in the Gazette and in a local newspaper, if any, circulating in any region concerned; and (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. (2) As soon as practicable after making a declaration under this Division, the Minister shall: (a) take reasonable steps to give notice, in writing, of the declaration to persons likely to be substantially affected by the declaration; and (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. (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. #### 16 Refusal to make declaration 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. ### Division 2—Declarations by authorized officers #### 17 Authorised officers (1) The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division. (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. (3) Where an authorized officer notifies a person of a declaration made under section 18, he or she shall: (a) if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or (b) in any other case—give that person such particulars of his or her identity card as are prescribed. (4) A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister. #### 18 Emergency declarations in relation to areas or objects (1) Where: (a) at any time, an authorized officer is satisfied that: (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; (ii) the area or object is, or objects are, under serious and immediate threat of injury or desecration; and (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 (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); the officer may make a declaration for the purposes of this section. (2) A declaration under subsection (1): (a) shall be in writing; (b) shall specify the period, not exceeding 48 hours, for which it is to remain in effect; (c) shall: (i) where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or (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 (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. (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. (2B) A declaration under subsection (1) is not a legislative instrument. (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. #### 19 Notification of declarations (1) An authorized officer shall, as soon as practicable after making a declaration under section 18: (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 (b) take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration. (2) Any failure to comply with subsection (1) does not invalidate a declaration. ### Division 3—Discovery and disposal of Aboriginal remains #### 20 Discovery of Aboriginal remains (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. (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. #### 21 Disposal of Aboriginal remains (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: (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; (b) otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or (c) if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping. (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. ## Part III—Offences, penalties and legal proceedings #### 22 Offences and penalties (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area. Penalty: (a) if the person is a natural person—imprisonment for 5 years or 100 penalty units, or both; or (b) if the person is a body corporate—500 penalty units. (2) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects. Penalty: (a) if the person is a natural person—imprisonment for 2 years or 50 penalty units, or both; or (b) if the person is a body corporate—250 penalty units. (3) A person who contravenes subsection 20(1) commits an offence punishable, on conviction, by a fine not exceeding 5 penalty units. (4) A person who contravenes subsection 17(4) commits an offence punishable, on conviction, by a fine not exceeding 1 penalty unit. (5) In this section: > engage in conduct means: (a) do an act; or (b) omit to perform an act. #### 23 Indictable offences (1) Subject to subsection (2), the following offences are indictable offences: (a) an offence referred to in subsection 22(1) or (2); (b) an offence against: (i) section 6 of the Crimes Act 1914; or (ii) section 11.1, 11.4 or 11.5 of the Criminal Code; in relation to an offence referred to in paragraph (a) of this subsection. (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. (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: (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 (b) if the person is a body corporate—a fine not exceeding 100 penalty units. #### 24 Evidence (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. (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. (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. #### 25 Body corporate responsible for acts of employees and agents (1) Where, at a particular time, a member of the governing body, director, employee or agent of a body corporate: (a) intends to do, or not to do, a particular act; or (b) knows, or ought reasonably to know, of the existence of a declaration made under Part II; paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time. (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. (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. (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. #### 26 Injunctions (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: (a) a contravention of a provision of a declaration made under Part II; (b) attempting to contravene such a provision; (c) aiding, abetting, counselling or procuring a person to contravene such a provision; (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision; the Court may grant an injunction in such terms as the Court determines to be appropriate. (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). (3) The Court may rescind or vary an injunction granted under subsection (1) or (2). (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: (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; (b) whether or not the person has previously engaged in conduct of that kind; and (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. (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised: (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; (b) whether or not the person has previously refused or failed to do that act or thing; and (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. #### 27 Proceedings in camera 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: (a) the interests of justice; and (b) the interests of Aboriginal tradition; 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. #### 28 Compensation for acquisition of property (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. (2) In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution. #### 29 Powers of courts not limited Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law. #### 30 Legal assistance (1) A person: (a) who wishes to apply for a declaration under section 9, 10 or 12; (b) who considers that his or her proprietary or pecuniary interests: (i) are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or (ii) are adversely affected by a declaration so made; or (c) against whom proceedings have been instituted: (i) for an offence referred to in subsection 23(1); or (ii) under section 26; may apply to the Attorney‑General for a grant of assistance under subsection (2). (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. ## Part IV—Miscellaneous #### 31 Delegation (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. (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. (3) A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister. (4) In this section, declaration means a declaration made under Part II. #### 32 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.