Aboriginal Heritage Act 2006

The Act casts a wide net. Traditional owners and RAPs are both empowered and burdened. A traditional owner is an Aboriginal person with particular knowledge of traditions associated with an area and either personal or familial/clan responsibility under Aboriginal tradition for significant places or objects (s 7). RAPs—bodies corporate registered under Part 10—act as their statutory delegates. Registration is not automatic; the Council must be satisfied of native title, recognition and settlement agreement status, historical or contemporary interest plus expertise, or other relevant matters (s 151). Once registered, a RAP becomes the primary source of advice to the Minister, Secretary and Council (s 148(a)), evaluates CHMPs, advises on permits, negotiates agreements, and reports annually. Multiple RAPs may be registered for the same area if the Council is satisfied this will not hinder effective operation of the Act (s 153). Suspension or revocation is possible for failure to act in good faith or breach of registration conditions (ss 154A, 156-157), with VCAT review available.

Developers, sponsors and proponents of activities are the primary regulated class. Any person seeking to undertake an activity (defined broadly in s 4(1) as development or use of land, including construction, demolition, subdivision, works, signage) that triggers a mandatory CHMP must prepare, have evaluated and obtain approval for that plan before commencing works or obtaining other statutory authorisations (ss 46, 52). Sponsors must notify RAPs and the Secretary (s 54), engage a qualified heritage advisor (s 58), consult in good faith (s 59), provide assessment documentation to the Secretary within 14 days of approval (s 67), and comply with the approved plan on pain of tiered offences (s 67A). Even voluntary CHMPs or amendments are regulated (ss 45, 45A, 66A). Preliminary Aboriginal heritage tests offer a pathway to determine whether a full CHMP is needed (ss 49B-49C).

Public land managers (defined in s 4(1) to include committees of management, the Secretary to DEECA, municipal councils, Parks Victoria, Head, Transport for Victoria, VicTrack, water authorities) face additional obligations. They must report and transfer ancestral remains and secret or sacred objects (s 14), may enter Aboriginal cultural heritage land management agreements with RAPs (s 74A), and cannot issue certain earth resource or planning authorisations until a CHMP is approved (s 50). They are also subject to stop orders, improvement notices and audits.

State entities, museums, universities and coroners have specific custodial and reporting duties. Coroners must report and transfer remains (ss 9, 19A, note to s 19A referencing the Coroners Act 2008). Universities and public entities had a two-year window post-2016 to report all ancestral remains in their possession (s 14). The Museums Board must accept safekeeping of remains or objects transferred by the Council (ss 20, 21B) and may hold other heritage (s 26), but s 25 of the Museums Act 1983 does not apply to ancestral remains or secret/sacred objects.

Land owners and occupiers must report discoveries (s 24), are prohibited from harming heritage (ss 27-28), and may be bound by registered cultural heritage agreements that run with the land (s 77). They are entitled to surface use only to the extent it does not contravene the harm provisions (s 25). Compulsory acquisition of significant, irreplaceable places is possible (s 31), with land then grantable to RAPs or other Aboriginal bodies in fee simple (s 32).

Authorised officers and Aboriginal heritage officers (Parts 11 Divs 1 and 1A) exercise entry, search, seizure, stop-order and improvement-notice powers. Authorised officers are appointed by the Minister after Council consultation and must have appropriate heritage knowledge and training (s 160). Aboriginal heritage officers are RAP employees performing monitoring and 24-hour stop-order functions.

The Minister, Secretary and Council administer the scheme. The Minister makes protection declarations, orders audits, issues stop orders, acquires land, directs CHMPs and approves forms. The Secretary maintains the Register, grants most permits, approves CHMPs where no RAP evaluates, provides advice, and manages enforcement. The Council advises, registers RAPs, manages the Fund, oversees repatriation and may approve certain CHMPs and permits.

Any person is affected by the general harm, possession, sale and removal prohibitions (ss 27-28, 33-34) and the offence of using registered intangible heritage commercially without consent (s 79G). Corporate officers face personal due-diligence liability (s 187A). Even members of the public must not interfere with declaration notices (s 110(6)).

In practice, the legislation reaches every sector: mining, infrastructure, residential subdivision, agriculture, forestry, renewable energy, water authorities, local government, museums, universities, coronial services and private landholders. The breadth of the "activity" definition and the mandatory-CHMP triggers mean that few significant land-use changes escape scrutiny.

Traditional owners and RAPs hold both rights and duties. Their central right is to be recognised as primary decision-makers: RAPs evaluate and approve or refuse CHMPs (ss 62-64), advise on permit applications (s 39, though repealed in form the consultative role remains), negotiate agreements, apply for protection declarations, and receive repatriated remains and objects (ss 20, 21B). They must be consulted before interim or ongoing protection declarations (ss 100, 106), before the Secretary grants certain permits (s 40(3F)), and before VCAT reviews (ss 117, 122, 127). RAPs have a statutory right to participate in surveys (s 34A(4)) and assessments (s 60). Rights to commercial benefits from intangible heritage are protected through registered agreements (s 79D).

Duties include acting in good faith (s 149), using reasonable efforts to co-operate in CHMP preparation (s 59(3)), evaluating plans within 30 days (s 63(1)), and annual reporting to the Council (s 148(fe)). Registration conditions may be imposed (s 154A) and registration itself can be varied, suspended or revoked (ss 155-157).

Sponsors and proponents owe duties to prepare CHMPs to prescribed standards (s 53), give notices (ss 54, 34A), engage heritage advisors (s 58), consult RAPs (s 59), apply for approval (s 62), comply with approved plans (s 67A), and provide all assessment documentation to the Secretary (s 67). They must not commence activities requiring a CHMP until approval is obtained (s 46(2)-(7)). Rights include the ability to seek voluntary CHMPs (s 45), apply for VCAT review of adverse RAP or Secretary decisions (ss 116, 121), and request extensions of decision periods by agreement (ss 63(5), 65(2E)).

Public land managers must report and transfer remains (s 14), may enter land management agreements that bind successors (s 74H), and must ensure activities comply with those agreements (s 74G). They enjoy the benefit of the s 29 exceptions when acting under an approved plan or agreement.

The Council has statutory functions to advise the Minister on protection, standards, training and compulsory acquisition (s 132(1)), determine RAP registrations (s 132(2)(a)), manage the Fund (s 132(2)(cf)), oversee repatriation (s 132(1)(aa)), and approve certain CHMPs and permits (ss 66, 40). It may delegate (s 132A) but retains core oversight. Members enjoy immunity for good-faith acts (s 141) but must declare conflicts (s 142).

The Secretary must maintain the Register (s 144), grant permits where it is the approval body (s 40), approve CHMPs in default of RAP evaluation (s 65), provide access to the Register on a need-to-know basis while protecting sensitive information (ss 146-146A), and enforce the Act (s 143(1)(h)). The Secretary may certify preliminary tests (s 49C), issue improvement notices and stop orders through authorised officers, and reimburse audit costs where no contravention is found (s 83(6)).

All persons have the right to continued surface use of land provided they do not harm heritage (s 25) and the right to apply for permits or enter agreements. They owe duties not to harm (ss 27-28), not to possess, sell or remove objects without authority (ss 33-34), to report discoveries and remains (ss 17, 24), and to comply with orders, notices, declarations and agreements. Emergency exceptions apply (s 29(c), s 102(7), s 108(7)).

Authorised officers and Aboriginal heritage officers have powers of entry (ss 166-169), search (s 170), seizure (ss 171-172, 178), requirement of information (ss 180-181) and affidavit-taking (s 182). They must produce identity cards (ss 165, 165E), provide reports of entry (s 184), and are protected from impersonation or obstruction offences (s 185). Officers must act within statutory limits; 24-hour stop orders cannot be issued consecutively for the same act (s 95A(8)).

Victims of harm (effectively the relevant RAP or traditional owners) may receive remediation orders (s 30) and enforce registered covenants (s 77). The Act binds the Crown (s 11) and preserves native title (s 10).

The rights–duties balance is deliberately tilted toward traditional-owner agency while imposing clear, time-bound obligations on the development sector and public authorities.

Penalties are graduated and fault-based. The most serious harm offence (s 27(1)—knowledge) carries 1800 penalty units (natural person) or 10 000 (body corporate) and is indictable. Reckless harm (s 27(3)) is 1200/6000; negligent harm (s 27(5)) is 600/3000. The strict-liability harm offence (s 28) is 60/300 penalty units. Parallel structures appear for commencing an activity without an approved CHMP (s 46—240/1200, 120/600, 60/300), breaching a CHMP (s 67A—600/3000, 300/1500, 60/300), breaching a land management agreement (s 74G—same as CHMP), using registered intangible heritage commercially (s 79G—1800/10 000 knowledge, 1200/6000 reckless), and breaching protection declarations (ss 102, 108—identical to s 27). Stop-order and 24-hour stop-order breaches are also indictable at the top tier (ss 95, 95C).

Corporate officers face personal liability under s 187A if they fail to exercise due diligence to prevent the corporation committing any of the listed offences. The defence of due diligence is available to the officer (s 187A(4)), but the burden mirrors that of the corporation. Proceedings must be commenced within three years (s 187B), except for indictables.

Enforcement tools are both reactive and proactive. Authorised officers and Aboriginal heritage officers may issue stop orders (up to 30 days, extendable 14 days—ss 87-94) or 24-hour stop orders (s 95A) where harm is occurring or likely and cannot otherwise be protected. Improvement notices address repeated or likely breaches (s 95D) without affecting parallel prosecutions (s 95E). Cultural heritage audits can be ordered where contravention is suspected or impacts exceed predictions (s 81); the sponsor or permit holder may be directed to fund a heritage advisor (s 83(5)), with reimbursement if no breach is found (s 83(6)).

Protection declarations operate despite any other Act, plan or agreement (s 109). Interim declarations last up to three months (extendable once—s 98); ongoing declarations are indefinite until revoked. Notices must be published in the Government Gazette and a local newspaper (ss 101, 107) and may be physically posted (s 110). Contravention is indictable.

Seizure of objects or remains is authorised without warrant in defined circumstances (s 172) and must be dealt with under Part 2 (s 178). Forfeiture of objects follows conviction for s 34 offences (s 35). Search warrants are available on reasonable grounds (s 173).

The Secretary or police may prosecute (s 186); DPP consent is required for indictables. Evidentiary aids include certificates from the Minister, Secretary or Museums Board (s 187). Statements made in alternative dispute resolution are inadmissible (s 115).

Penalties are indexed to penalty units (currently $192.31 as at 1 July 2025), so a 10 000-unit corporate fine exceeds $1.9 million. Courts may also order remediation (s 30) or restoration of land (s 30(3)). The regime is deliberately punitive at the high end to deter deliberate or reckless destruction of irreplaceable heritage.

The Act is expressly designed to integrate with, and in many cases override, other statutory regimes. Section 10 provides that nothing in the Act affects native title rights and interests except in accordance with the Native Title Act 1993 (Cth); the Act must be interpreted so as not to prejudice those rights.

Planning and environmental laws are subordinated. A CHMP is mandatory before an Environment Effects Statement can be completed (s 49) or before an impact management plan or comprehensive impact statement under the Major Transport Projects Facilitation Act 2009 (s 49A). Decision-makers under the Planning and Environment Act 1987 cannot grant permits or amendments that allow an activity for which a CHMP is required until the CHMP is approved (s 52). Earth resource authorisations (mining, petroleum, geothermal, pipelines) are likewise suspended (definition of "statutory authorisation" in s 50 and s 52). The Council may advise the Minister administering the Planning and Environment Act on scheme amendments that may affect heritage (s 132(2)(cb)); RAPs have a parallel advisory function (s 148(fd)).

The Coroners Act 2008 is preserved except for the transfer obligation in s 19A (s 9). Human tissue removed lawfully or dealt with under the Human Tissue Act 1982 is excluded from the definition of ancestral remains (s 4(1)).

Heritage overlaps are managed. The definition of "heritage place" cross-references the Heritage Act 1995; the Executive Director of Heritage Victoria may access the Register (s 146(1)(j)). Protection declarations have paramountcy over any other Act or agreement (s 109).

The Traditional Owner Settlement Act 2010 is woven throughout. Recognition and settlement agreements and traditional owner group entities affect RAP registration priority (ss 151(2A), 156(3A)). Land use activity agreements are referenced in the definitions.

The Act binds the Crown in all capacities (s 11). Public land managers are defined by reference to the Catchment and Land Protection Act 1994, Local Government Act 2020, Parks Victoria Act 2018, Transport Integration Act 2010, Rail Corporations Act 1996 and Water Act 1989 (s 4(1)).

Tax and rate remissions are available where a cultural heritage agreement or ongoing protection declaration renders land use economically unfeasible (s 191), requiring Treasurer or rating-authority consent.

The Borrowing and Investment Powers Act 1987 governs Council borrowing for the Fund (s 158E). The Public Administration Act 2004 defines the Department and public entities (s 4(1), (5)).

In practice, a proponent must therefore sequence compliance: complete a preliminary test or CHMP before lodging a planning application or seeking an earth-resources consent; consult the same RAP that would advise on a planning permit when preparing the CHMP; and ensure that any registered agreement or declaration is disclosed to subsequent purchasers because it runs with the land.

The version reproduced is No. 29 as at 22 October 2025. The most significant amendments were effected by the Aboriginal Heritage Amendment Act 2016 (No. 11/2016), which inserted or substituted the majority of the provisions now appearing in the text. That Act responded to a statutory review, stakeholder concern that traditional owners lacked sufficient control over intangible heritage and commercial exploitation, and the need to streamline processes while strengthening enforcement.

Key 2016 changes include:

• Introduction of Aboriginal intangible heritage (new Part 5A, ss 79A-79L). Section 79B defines it as knowledge or expression of Aboriginal tradition (oral traditions, performing arts, stories, rituals, environmental and ecological knowledge) that is not widely known to the public, plus derived intellectual creations. Registration on the Register (s 79C) and agreements (s 79D) allow control of commercial use (s 79G) and create offences for breach (s 79H). This directly implements the objective inserted at s 3(k).

• Aboriginal cultural heritage land management agreements (new Div 1A of Part 5, ss 74A-74J). Public land managers may enter these with RAPs for routine land-management activities that would otherwise require a CHMP. They must follow prescribed standards and conditions (ss 74B-74C), be notified to the Secretary (s 74E) and attract the same compliance offences as CHMPs (s 74G). This reduces regulatory burden on routine public-land activities while maintaining RAP oversight.

• The Aboriginal Cultural Heritage Fund (new Part 10A, ss 158B-158H). Fees, gifts, borrowings and land-sale proceeds flow into the Fund, which may be used for protection grants, loans, land acquisition or other authorised purposes. The Council manages it (s 132(2)(cf)).

• Preliminary Aboriginal heritage tests (new Div 2A of Part 4, ss 49B-49C) to determine whether a full CHMP is required, with Secretary certification within 21 days.

• Expanded enforcement: 24-hour stop orders (new Div 3 of Part 6), improvement notices (new Div 4), and the due-diligence officer-liability regime (s 187A).

• Enhanced Council functions (s 132 amendments) including oversight of repatriation, five-yearly state-of-heritage reports, policy guidelines, and management of RAPs.

• Streamlining and clarification of time limits that pause for further information (e.g. ss 40(3C), 63(1C), 65(2C), 151(10)).

• Updated definitions (s 4), harm (s 4(1)), traditional owners (new s 7), and RAP registration criteria (s 151).

• Validation and transitional provisions (new s 198, amendments to Schedule 1).

Later minor amendments (Transport Legislation Amendment Act 2019, Local Government Act 2020, Statute Law Revision Acts) updated cross-references to new departmental titles, local government structures and transport entities. The 2025 version incorporates all these without substantive policy reversal. The changes were driven by the need to give effect to self-determination principles, reduce unnecessary duplication for low-impact public-land activities, protect intangible cultural property in the commercial sphere, and provide regulators with flexible, rapid-response tools.

The Act itself does not record specific judicial decisions, but Part 8 expressly contemplates litigation in VCAT. Sponsors may seek review of a RAP's refusal to approve a CHMP (s 116) or of the Secretary's refusal (s 116(2)). Applicants for permits may challenge refusal or conditions (s 121). Persons affected by protection declaration decisions may apply for review (s 126). VCAT must apply the same statutory criteria the original decision-maker was bound by (ss 119, 124, 129) and, before approving any plan or permit, must be satisfied that harm will be avoided or minimised (ss 120, 124(2)).

Controversies have centred on the breadth of "harm" (s 4(1)), the practical meaning of "reasonably believes" in reporting obligations (ss 17, 19, 24), the scope of RAP evaluation rights versus the Secretary's default approval power, and the interaction between the Act and native title or land-use activity agreements. Registration disputes under s 151—particularly whether a body has "demonstrated expertise" or whether multiple RAPs can coexist without hindering the Act's operation (s 153)—have generated tension. The 2016 expansion to intangible heritage raised questions about what constitutes "widely known to the public" (s 79B(1)) and how commercial-use offences (s 79G) intersect with freedom of speech or existing intellectual-property rights. The due-diligence defence in s 187A has not yet been judicially tested in the reported decisions referenced in the Act's explanatory materials, but its placement after the corporate offence provisions signals legislative intent to lift the corporate veil in serious cases.

The requirement that RAPs act in good faith (s 149) and the Council's power to suspend or revoke registration for breach (s 156) have been invoked in circumstances where evaluation delays or perceived conflicts of interest have stalled projects. VCAT's obligation under s 120 to be satisfied that a plan makes "sufficient provision" for avoidance or minimisation of harm gives the Tribunal a broad merits-review jurisdiction that has, in practice, required detailed evidence of heritage surveys, contingency planning and custody arrangements.

Overall, the Act channels controversy into structured dispute-resolution pathways rather than protracted Supreme Court litigation. The combination of strict time limits, mandatory consultation and VCAT oversight has reduced but not eliminated perceptions that the regime can be used to frustrate legitimate development or, conversely, that development pressures can marginalise intangible heritage values.

Most practitioners still treat the Act as a "planning approval" statute rather than a cultural governance statute. The following points are frequently overlooked:

• The definition of "harm" in s 4(1) is extraordinarily broad ("disturb" or "interfere with"). Even non-destructive activities such as weed spraying, vehicle movement or temporary fencing on a surface scatter can trigger the s 28 offence unless a permit or approved CHMP authorises it. The s 8 provision that heritage significance is not lost by damage means a previously disturbed site remains fully protected.

• Reporting obligations in ss 17 and 24 are personal and continuing. A site supervisor "in charge of the works" is deemed the discoverer (s 24(3)). Failure to report because "the archaeologist will do it later" is no defence.

• The 2016 amendments made the Council the default approver for permits and CHMPs in areas without a RAP (ss 35A, 40(3G), 66). Developers who assume "no RAP = no consultation" are wrong; the Council must still consult "any Aboriginal person or body that the Secretary or Council considers relevant" (ss 40(3F), 65(3), 66(3)).

• Intangible heritage agreements (Part 5A) can bind successors even though they are not registered on title. Section 79L makes Register recording prima facie evidence of the existence of the heritage, shifting the evidentiary burden.

• Officer due-diligence liability (s 187A) applies to a wide list of offences and captures "any person who is concerned in, or takes part in, the management" of the body corporate. A consultant heritage advisor or project manager seconded to a proponent company can be an "officer".

• Stop orders and 24-hour stop orders cannot be issued for activities authorised by a permit, approved CHMP or land management agreement (ss 87(1A), 95A(2)). However, if the audit under s 81 reveals that the actual impact is greater than assessed, the Minister can still order an audit and, after that, amend the plan or permit (s 86).

• The five-year limit on amendments to an approved CHMP (s 66A(5)) is absolute. After five years a new plan is required even for minor changes.

• RAP registration can be varied, suspended or revoked for breach of a condition imposed under s 154A, not merely for bad faith (s 156(1A)). Conditions are often imposed at registration but rarely reviewed by proponents.

• The Fund (Part 10A) can receive "any other money received by the Council". Some RAPs have sought to channel permit or evaluation fees through the Council to access Fund investment returns or borrowing capacity.

• Section 29(d) excepts coronial activity only; a developer who disturbs remains while "helping" a coroner may still commit an offence.

• Evidentiary certificates under s 187 are conclusive on their face; challenging the underlying facts requires separate proceedings.

These gotchas explain why experienced practitioners insist on early RAP engagement, conservative scoping of "activity", and written records of every consultation.

Compliance is sequential and documentary. A prudent proponent should:

1. Determine whether a CHMP is required (s 46). Check the regulations, consider whether an EES or impact management plan is needed, or lodge a preliminary Aboriginal heritage test with the Secretary (s 49B). If the test is certified as requiring a CHMP, the obligation crystallises.

2. Identify the relevant RAP(s). Use the Secretary's map and contact list (s 143(1)(l)-(m)). If none exists, the Council becomes the default approver and must be consulted.

3. Give notice of intention to prepare a CHMP (s 54). The notice must describe the activity, identify the area by map, specify proposed dates, and be accompanied by the prescribed fee. Simultaneously notify landowners, municipal councils and the Secretary.

4. Engage a qualified heritage advisor (s 58) who meets the Minister's guidelines (s 189). The advisor must be independent of the sponsor.

5. Consult the RAP in good faith before and during the assessment (s 59). Provide all information requested; allow participation in fieldwork. Document every meeting, telephone call and email.

6. Prepare the plan to prescribed standards (s 53). The assessment must include a desktop review, field survey (which itself triggers s 34A notice obligations), artefact recording and, if necessary, subsurface testing. The report must address the s 61 matters: avoidance, minimisation, management measures, contingency plans and custody arrangements.

7. Apply to the RAP for approval (s 62). Pay any prescribed fee. The RAP has 30 days (pausable for further information). If the RAP refuses, refer the dispute to the Council Chairperson for alternative dispute resolution (s 113) or proceed directly to VCAT if the Chairperson certifies that ADR has failed (s 116(1)(b)(iii)).

8. If no RAP evaluates or the RAP approves, lodge with the Secretary or Council (ss 64-66). The Secretary has 30 days, the Council 60 days (both pausable). Additional consultation with relevant Aboriginal persons or activity advisory groups is mandatory (ss 65(3), 66(3)).

9. Once approved, give a copy to every decision-maker whose authorisation is required (s 52(2)). No permit, planning approval or earth-resources consent can issue until this occurs, and the authorisation must not be inconsistent with the plan.

10. Comply with the plan during works. Monitor, report, implement contingency measures. Any amendment after five years requires a new plan (s 66A(5)).

11. For ancillary activities, consider a cultural heritage permit (s 36) or land management agreement (if a public land manager). Register agreements on title where covenants are intended to bind successors (s 76).

12. Maintain records. Every notice, consultation log, survey report, approval, audit and incident must be retained. The Secretary may request assessment documentation at any time (s 67).

13. Budget for RAP fees, heritage advisor costs, potential audits, remediation bonds and Fund levies. These are now standard line items in project costing.

14. If remains or objects are discovered during works, stop immediately, report, and do not move anything until the Council directs (ss 17-20). Failure to do so triggers personal liability for directors and officers.

Organisations that embed a "heritage first" gate in their project approval processes, maintain standing relationships with relevant RAPs, and treat the CHMP as a living document rather than a box-ticking exercise achieve the lowest risk profile and often the fastest overall approvals.