Div 1Discovery, protection and management of Aboriginal sites, objects and remains

Division 1—Discovery, protection and management of Aboriginal sites, objects and remains 20—Reporting discovery of sites, objects or remains where person not acting under Ministerial authorisation (1) An owner or occupier of private land, or an employee or agent of such an owner or occupier, who discovers on the land— (a) an Aboriginal site; or (b) an Aboriginal object or remains, must, as soon as practicable, report the discovery to the Minister giving particulars of the nature and location of the site, object or remains. (2) This section does not apply to the traditional owner of the site or object or to an employee or agent of the traditional owner (other than where the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, persons engaged in commercial activities on the land where the discovery is made). (3) The Minister may direct a person making a report, or the owner or occupier of the land to which the report relates, (or both) to take such immediate action for the protection or preservation of the Aboriginal site, object or remains as the Minister considers appropriate. (4) A person must not, without reasonable excuse, fail to comply with a direction of the Minister under this section. (5) This section does not apply in relation to— (a) Aboriginal sites, objects or remains discovered by a person acting pursuant to a Ministerial authorisation given under section 21 or 23 (being a discovery that must be reported in accordance with section 20A); or (b) Aboriginal sites, objects or remains the discovery of which has previously been reported under this Act. 20A—Cessation of activity and reporting to Minister on discovery etc of certain sites, objects or remains while acting under authorisation (1) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both after the commencement of this section (the relevant authorisation)— (a) discovers an Aboriginal site, object or remains; or (b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or (c) becomes aware of new information relating to an Aboriginal site or remains, must, in accordance with the requirements set out in the relevant authorisation— (d) in the case of an Aboriginal site or remains—cease undertaking activity within the prescribed distance of the site or remains; and (e) in any case—report the discovery or new information to the Minister. (2) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both before the commencement of this section (the relevant authorisation)— (a) discovers an Aboriginal site, object or remains; or (b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or (c) becomes aware of new information relating to an Aboriginal site or remains, must— (d) in the case of an Aboriginal site or remains— (i) cease undertaking activity within the prescribed distance of the site or remains for such period as may be reasonably necessary to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains; and (ii) as soon as is reasonably practicable after the discovery, or after becoming aware of the new information, report the discovery or new information to the Minister; or (e) in the case of an Aboriginal object—manage the object, and report the discovery of the object to the Minister, in accordance with the requirements set out in the relevant authorisation. (3) To avoid doubt, subsection (2)(d) applies despite a provision of an authorisation to the contrary. (4) A prescribed person who contravenes subsection (1) or (2) is guilty of an offence. (5) Except as is contemplated by subsection (6), subsections (1) and (2) do not apply in relation to the following Aboriginal sites, objects or remains: (a) Aboriginal sites, objects or remains that are known to the Minister and disclosed to the applicant in the course of their application for the relevant authorisation (whether or not the discovery of the sites, objects or remains has previously been reported under this Act); (b) Aboriginal sites, objects or remains the discovery of which is reported under section 20; (c) Aboriginal sites, objects or remains that are the subject of a management methodology approved by the Minister for the purposes of this section; (d) Aboriginal sites, objects or remains that are the subject of a local heritage agreement; (e) any other Aboriginal site, objects or remains, or Aboriginal sites, objects or remains of a kind, prescribed by the regulations. (6) Despite subsection (5), subsections (1) and (2) continue to apply in relation to new information relating to an Aboriginal site or remains of which a prescribed person becomes aware (whether or not the site or remains themselves are referred to in subsection (5)). (7) Before approving a management methodology for the purposes of this section, the Minister must be satisfied that— (a) consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, was carried out in accordance with any requirements set out in the regulations or guidelines in the development of the management methodology; and (b) the management methodology includes provisions requiring consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, in relation to sites, objects or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation; and (c) the management methodology includes provisions that provide the Minister with a reasonable opportunity to take action under this Act in respect of sites or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation, or where new information relating to a site or remains becomes known; and (d) a condition is imposed on the relevant authorisation requiring the person to whom the authorisation is given to comply with the management methodology in relation to sites, objects and remains discovered in the course of undertaking an activity pursuant to the authorisation; and (e) the management methodology complies with any other requirements set out in the regulations or guidelines. (8) Nothing in this section limits a direction that may be given by the Minister or an inspector under this Act (and, in particular, nothing in this section authorises a person to contravene such a direction). (9) In this section— prescribed distance, in relation to a site or remains, means— (a) if the regulations prescribe a distance for the purposes of this section—that distance; or (b) if the site or remains are discovered in the course of undertaking an activity pursuant to an authorisation of the Minister under section 21 or 23, and that authorisation specifies a distance for the purposes of this section—that distance; or (c) in any other case— (i) in the case of a site—3 metres; or (ii) in the case of remains—5 metres; prescribed person, in relation to a relevant authorisation, means— (a) the person to whom the relevant authorisation is given; and (b) a traditional owner of the site or remains to the extent that the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, a person to whom the relevant authorisation is given; and (c) an employee or agent of, or a person otherwise acting for or on behalf of, a person referred to in a preceding paragraph; and (d) any other person prescribed by the regulations. 21—Excavating sites, objects or remains (1) A person must not, without authorisation by the Minister, excavate land for the purpose of uncovering any Aboriginal site, object or remains. (2) Without limiting any other condition that may be imposed on an authorisation, the Minister must not give an authorisation for the purposes of this section unless the authorisation contains the following conditions: (a) a condition requiring that where— (i) a site or remains are discovered in the course of undertaking activities pursuant to the authorisation; or (ii) new information relating to a site or remains becomes known to a person undertaking activities pursuant to the authorisation, such activity must immediately cease within a specified distance of the site or remains (which must not be less than the prescribed distance within the meaning of section 20A); and (b) a condition requiring that a specified person or body must, as soon as is reasonably practicable, report a discovery or new information referred to in paragraph (a) to the Minister; and (c) a condition that prevents the resumption of activities pursuant to the authorisation during the period specified in the condition (being a period that is sufficient to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains); and (d) any other condition required by the regulations. (3) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section to a specified class of persons. (4) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section in relation to specified Aboriginal sites, objects or remains, or to all Aboriginal sites, objects or remains within a specified area (whether or not those Aboriginal sites, objects or remains are entered in archives kept under Part 2 or have otherwise been reported under this Act). (5) Section 20 does not apply in relation to Aboriginal sites, objects or remains discovered in the course of excavations carried out with an authorisation given by the Minister for the purposes of this section. Such discoveries may be required to be reported to the Minister in accordance with section 20A. (6) This section does not apply to an excavation of land occurring in the course of complying with a direction of the Minister under this Act. 22—Access to and excavation of land by authorised persons (1) Where the Minister has reason to believe that any Aboriginal site, object or remains have been or may be found on or under any land (including private land), the Minister may authorise a person— (a) to enter the land; and (b) to search for the site, object or remains; and (c) to excavate the land. (2) Before entering any land pursuant to an authorisation under this section, the authorised person must give reasonable notice in writing to the owner and occupier (if any) of the land identifying the land affected. (3) Where any Aboriginal object or remains, or any object or remains that may be an Aboriginal object or Aboriginal remains, is or are found on the land, the Minister, if satisfied that it is necessary to do so for the protection or preservation of the object or remains, may take possession of the object or remains. (4) The Minister must make good any damage done to land by a person acting in pursuance of this section. (5) A person must not, without reasonable excuse, hinder or obstruct a person acting pursuant to an authorisation under this section. 23—Damaging, disturbing or interfering with sites, objects or remains (1) A person who, without authorisation by the Minister, intentionally or recklessly damages, disturbs or interferes with an Aboriginal site, object or remains is guilty of an offence. (a) in the case of a body corporate—$2 000 000; (2) A person who, without authorisation by the Minister, damages, disturbs or interferes with an Aboriginal site, object or remains is guilty of an offence. (a) in the case of a body corporate—$50 000; (b) in any other case—$10 000 or imprisonment for 6 months or both. (3) Without limiting any other condition that may be imposed on an authorisation, the Minister must not give an authorisation for the purposes of this section unless the authorisation contains the following conditions: (a) a condition requiring that where— (i) a site or remains are discovered in the course of undertaking activities pursuant to the authorisation; or (ii) new information relating to a site or remains becomes known to a person undertaking activities pursuant to the authorisation, such activities must immediately cease within a specified distance of the site or remains (which must not be less than the prescribed distance within the meaning of section 20A); and (b) a condition requiring that a specified person or body must, as soon as is reasonably practicable, report a discovery or new information referred to in paragraph (a) to the Minister; and (c) a condition that prevents the resumption of activities pursuant to the authorisation during the period specified in the condition (being a period that is sufficient to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains); and (d) any other condition required by the regulations. (4) In proceedings for an offence against subsection (2), it is a defence for the defendant to prove that they did not know, and could not reasonably have been expected to have known, that the site, object or remains to which the alleged offence relates was an Aboriginal site, object or remains (as the case requires). (5) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section to a specified class of persons. (6) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section in relation to specified Aboriginal sites, objects or remains, or to all Aboriginal sites, objects or remains within a specified area (whether or not those Aboriginal sites, objects or remains are entered in archives kept under Part 2 or have otherwise been reported under this Act). (7) Section 20 does not apply in relation to Aboriginal sites, objects or remains discovered in the course of activities carried out with an authorisation given by the Minister for the purposes of this section. Such discoveries may be required to be reported to the Minister in accordance with section 20A. (8) This section does not apply to damage to, disturbance of or interference with Aboriginal sites, objects or remains occurring in the course of complying with a direction of the Minister under this Act. 24—Directions by Minister for protection and preservation of sites, objects or remains (1) Subject to this section, where the Minister is satisfied that it is necessary for the protection or preservation of— (b) a site, object or remains that the Minister has reason to believe may be an Aboriginal site, object or remains, the Minister may give 1 or more of the following directions: (c) a direction prohibiting or restricting access to the site or an area surrounding the site or to the object or remains; (d) a direction prohibiting or restricting activities on or in relation to the site or an area surrounding the site or in relation to the object or remains; (e) any other directions the Minister considers necessary or appropriate for the protection or preservation of the site, object or remains. (1a) In the case of Aboriginal sites, objects or remains on land to which an authorisation given by the Minister under section 21 or 23 or both relates, this section will be taken only to apply to— (a) a new site, object or remains discovered after the authorisation is given; or (b) a site, object or remains discovered before the authorisation is given but that should, due to the receipt of new information about the site, object or remains, in the opinion of the Minister, be the subject of a direction under this section. (1b) To the extent that a direction is inconsistent with a provision of— (a) an authorisation given by the Minister under section 21 or 23; or (b) a management methodology approved for the purposes of section 20A; or (c) a local heritage agreement; or the provision will, while the direction is in force and to the extent of the inconsistency, be taken to be of no effect. (2) The Minister must not give directions (other than a direction given in the circumstances contemplated by subsection (1a)) under subsection (1)(c) that have the effect of prohibiting or restricting access for a period of more than 3 months except with the approval of the Governor. (2a) Before giving a direction under this section, the Minister must have regard to such of the following as may be relevant to the Aboriginal site, object or remains: (a) an authorisation given by the Minister under section 21 or 23; (b) a management methodology approved for the purposes of section 20A; (c) a local heritage agreement; however nothing in this subsection prevents the Minister from giving a direction in relation to sites, objects or remains that are the subject of such an instrument. (3) Directions may be given under this section— (a) if limited in their application to a particular person or persons—by notice in writing to that person or those persons; or (b) if of general application— (i) by notice published in the Gazette; or (ii) by notice published in a newspaper circulating generally throughout the State; or (iii) by the erection of signs in the vicinity of the site, area, object or remains; or (iv) by a combination of methods referred to in this paragraph, as the Minister considers appropriate in the circumstances. (4) Subject to subsection (5), the Minister must, before giving any directions under this section, take reasonable steps to give not less than eight weeks notice of the proposed directions to— (a) the owner and occupier (if any) of land in relation to which the directions apply; and (ab) if there is a Recognised Aboriginal Representative Body in respect of the area in which the Aboriginal site, object or remains are located, or in respect of the Aboriginal site, object or remains—the Recognised Aboriginal Representative Body; and (b) the Committee; and (c) any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and (d) a representative of— (i) any traditional owners; and (ii) any other Aboriginal persons, (5) The Minister may give a direction under this section without the notice required by subsection (4)— (a) if satisfied that urgent action is necessary; or (b) in relation to an Aboriginal site, object or remains discovered in the course of acting pursuant to an authorisation given by the Minister under section 21 or 23, but must, in that event, take reasonable steps to give the notice as soon as practicable after giving the direction. (5a) To avoid doubt, nothing in this section limits, or is limited by, any directions the Minister may give under section 20. (6) A notice must— (a) set out the directions; and (b) give the reasons for the directions; and (c) state that any interested person or body may make representations to the Minister with respect to the directions; and (d) if given under subsection (3)(a), set out the penalty for contravening or failing to comply with a direction. (7) Where directions are given under this section in relation to a site or object that is not entered in the Register of Aboriginal Sites and Objects, the Minister must, as soon as practicable— (a) determine whether the site or object should be entered in the Register; and (b) if the Minister determines that the site or object should not be entered in the Register—revoke the directions. (8) Where directions are given under this section in relation to remains not known to be Aboriginal remains, the Minister must, as soon as practicable— (a) determine whether the remains are Aboriginal remains; and (b) if the Minister determines that the remains are not Aboriginal remains—revoke the directions. (9) The Minister must— (a) give due consideration to any representations made with respect to the directions; and (b) if satisfied (whether on the basis of such representations or otherwise) that the directions should be revoked or modified, revoke or modify the directions accordingly. (10) Within 30 days after the sale of land in relation to which directions under this section apply, the vendor must provide the Minister with the following information in writing— (a) the date of the sale; and (b) the name and address of the purchaser. Maximum penalty: $10 000. (11) This section does not apply to Aboriginal objects or remains that are in a public or private collection. 25—Directions by inspector for protection and preservation of sites, objects or remains (1) Where an inspector is satisfied that urgent action is necessary for the protection or preservation of— (b) a site, object or remains that the inspector has reason to believe may be an Aboriginal site, object or remains, the inspector may give 1 or more of the following directions: (c) a direction prohibiting or restricting access to the site, or an area surrounding the site, or to the object or remains; (d) a direction prohibiting or restricting activities on or in relation to the site or an area surrounding the site or in relation to the object or remains; (e) any other directions the inspector considers necessary or appropriate for the protection or preservation of the site, object or remains. (1aa) In the case of Aboriginal sites, objects or remains on land to which an authorisation given by the Minister under section 21 or 23 or both relates, this section will be taken only to apply to— (a) a new site, object or remains discovered after the authorisation is given; or (b) a site, object or remains discovered before the authorisation is given but that should, due to the receipt of new information about the site, object or remains, in the opinion of the inspector, be the subject of a direction under this section. (1ab) To the extent that a direction is inconsistent with a provision of— (a) an authorisation given by the Minister under section 21 or 23; or (b) a management methodology approved for the purposes of section 20A; or (c) a local heritage agreement; or the provision will, while the direction is in force and to the extent of the inconsistency, be taken to be of no effect. (1a) An inspector must, before giving directions under this section, have regard to— (a) any local heritage agreement in respect of the site, object or remains; and (b) any agreement to which Part 3 Division A2 applies that relates to the site, object or remains. (2) Directions may be given under this section— (a) if limited in their application to a particular person or persons—by notice in writing to that person or those persons; or (b) if of general application—by the erection of signs in the vicinity of the site, area, object or remains to which the directions relate. (3) A notice under subsection (2)(a) must set out the penalty for contravening or failing to comply with a direction. (4) Where an inspector gives any directions under this section, the inspector must forthwith report the matter to the Minister. (5) Any directions given under this section cease to have effect on revocation by the Minister, or, in any event, on the expiration of 10 working days after the day on which they were given. (6) This section does not apply to Aboriginal objects or remains that are in a public or private collection. 26—Failure to comply with directions of Minister or inspector A person must not, without reasonable excuse, contravene, or fail to comply with, a direction given under section 24 or 25. 27—Entry by officials (1) Directions under section 24 or 25 do not apply to— (a) an inspector acting in the course of official duties; (b) a member of the police force acting in the course of official duties; (c) a person acting with the authority of the Minister, who enters a restricted area for the purpose of carrying out functions that have been assigned to a Minister, statutory office holder or instrumentality of the Crown; (d) a person acting in response to an emergency. (2) Where a person proposes to enter an area in pursuance of subsection (1)(c), reasonable notice of the time, place and purpose of the proposed entry must be given to the Minister. 28—Care of Aboriginal objects A person must take reasonable measures to protect an Aboriginal object that is in that person's ownership or possession as part of a public or private collection.