Aboriginal Heritage Act 2006

Schedule 1—Saving and transitional provisions 197

Endnotes 201

1 General information 201

2 Table of Amendments 203

3 Explanatory details 206

Version No. 029

Aboriginal Heritage Act 2006

No. 16 of 2006

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

S. 1 substituted by No. 11/2016 s. 3.

1 Purposes

The main purposes of this Act are—

(a) to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria; and

(b) to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other peoples; and

(c) to strengthen the ongoing right to maintain the distinctive spiritual, cultural, material and economic relationship of traditional owners with the land and waters and other resources with which they have a connection under traditional laws and customs; and

(d) to promote respect for Aboriginal cultural heritage, contributing to its protection as part of the common heritage of all peoples and to the sustainable development and management of land and of the environment.

2 Commencement

This Act comes into operation on a day or days to be proclaimed.

3 Objectives

The objectives of this Act are—

(a) to recognise, protect and conserve Aboriginal cultural heritage in Victoria in ways that are based on respect for Aboriginal knowledge and cultural and traditional practices;

(b) to recognise Aboriginal people as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage;

S. 3(c) substituted by No. 11/2016 s. 4(1).

(c) to accord appropriate status to traditional owners, including a preference to appoint traditional owner bodies corporate as registered Aboriginal parties;

(d) to promote the management of Aboriginal cultural heritage as an integral part of land and natural resource management;

(e) to promote public awareness and understanding of Aboriginal cultural heritage in Victoria;

(f) to establish an Aboriginal cultural heritage register to record Aboriginal cultural heritage;

(g) to establish processes for the timely and efficient assessment of activities that have the potential to harm Aboriginal cultural heritage;

(h) to promote the use of agreements that provide for the management and protection of Aboriginal cultural heritage;

(i) to establish mechanisms that enable the resolution of disputes relating to the protection of Aboriginal cultural heritage;

S. 3(j) amended by No. 11/2016 s. 4(2).

(j) to provide appropriate sanctions and penalties to prevent harm to Aboriginal cultural heritage;

S. 3(k) inserted by No. 11/2016 s. 4(3).

(k) to recognise, protect and conserve Aboriginal intangible heritage by recording it on the Victorian Aboriginal Heritage Register.

4 Definitions

(1) In this Act—

S. 4(1) def. of Aboriginal ancestral remains inserted by No. 11/2016 s. 5(1).

Aboriginal ancestral remains means the whole or part of the bodily remains of an Aboriginal person but does not include—

(a) a body, or the remains of a body, buried in a public cemetery that is still used for the interment of human remains; or

(b) an object made from human hair or from any other bodily material that is not readily recognisable as being bodily material; or

(c) any human tissue—

(i) dealt with or to be dealt with in accordance with the Human Tissue Act 1982 or any other law of a State, a Territory or the Commonwealth relating to medical treatment or the use of human tissue; or

(ii) otherwise lawfully removed from an Aboriginal person;

S. 4(1) def. of Aboriginal cultural heritage amendedby No. 11/2016 s. 5(2).

Aboriginal cultural heritage means Aboriginal places, Aboriginal objects and Aboriginal ancestral remains;

S. 4(1) def. of Aboriginal Cultural Heritage Fund inserted by No. 11/2016 s. 5(1).

Aboriginal Cultural Heritage Fund means the fund established under Part 10A;

S. 4(1) def. of Aboriginal cultural heritage land management agreement inserted by No. 11/2016 s. 5(1).

Aboriginal cultural heritage land management agreement means an agreement entered into under Division 1A of Part 5;

S. 4(1) def. of Aboriginal heritage officer inserted by No. 11/2016 s. 5(1).

Aboriginal heritage officer means a person appointed as an Aboriginal heritage officer under Division 1A of Part 11;

S. 4(1) def. of Aboriginal human remains repealed by No. 11/2016 s. 5(9).

S. 4(1) def. of Aboriginal intangible heritage inserted by No. 11/2016 s. 5(1).

Aboriginal intangible heritage has the meaning given by section 79B;

S. 4(1) def. of Aboriginal intangible heritage agreement inserted by No. 11/2016 s. 5(1).

Aboriginal intangible heritage agreement means an agreement entered into under Part 5A;

S. 4(1) def. of Aboriginal object amended by No. 11/2016 s. 5(3).

Aboriginal object means—

(a) an object in Victoria or the coastal waters of Victoria that—

(i) relates to the Aboriginal occupation of any part of Australia, whether or not the object existed prior to the occupation of that part of Australia by people of non-Aboriginal descent; and

(ii) is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria; or

(b) an object, material or thing in Victoria or the coastal waters of Victoria—

(i) that is removed or excavated from an Aboriginal place; and

(ii) is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria—

but does not include—

(c) an object that has been made, or is likely to have been made, for the purpose of sale (other than an object made for barter or exchange in accordance with Aboriginal tradition); or

(d) Aboriginal ancestral remains;

S. 4(1) def. of Aboriginal person repealed by No. 11/2016 s. 5(9), new def. of Aboriginal person inserted by No. 11/2016 s. 5(1).

Aboriginal person means a person belonging to the indigenous peoples of Australia;

Aboriginal place has the meaning given by section 5;

S. 4(1) def. of Aboriginal tradition amended by No. 11/2016 s. 5(4).

Aboriginal tradition means—

(a) the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and

(b) any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships;

activity means the development or use of land;

approved cultural heritage management plan means a cultural heritage management plan approved under this Act;

approved form means a form approved by the Secretary under section 190;

S. 4(1) def. of authorised officer inserted by No. 11/2016 s. 5(1).

authorised officer means a person appointed as anauthorised officer under Division 1 of Part11;

S. 4(1) def. of buy repealed by No. 11/2016 s. 5(9).

S. 4(1) def. of Catchment Management Authority inserted by No. 11/2016 s. 5(1).

Catchment Management Authority means an Authority within the meaning of the Catchment and Land Protection Act 1994;

coastal waters of Victoria has the same meaning as the expression "coastal waters of the State" has in relation to Victoria under the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

S. 4(1) def. of committee of management inserted by No. 11/2016 s. 5(1).

committee of management means a committee of management appointed under the Crown Land (Reserves) Act 1978;

contravene includes fail to comply with;

S. 4(1) def. of coroner inserted by No. 11/2016 s. 5(1).

coroner has the same meaning as in the Coroners Act 2008;

Council means the Aboriginal Heritage Council established under Part 9;

S. 4(1) def. of cultural heritage advisor repealed by No. 11/2016 s. 5(9).

cultural heritage agreement has the meaning given by section 68;

cultural heritage audit has the meaning given by section 80;

cultural heritage management plan has the meaning given by section 42;

cultural heritage permit means a cultural heritage permit granted under this Act;

cultural heritage significance includes—

(a) archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and

(b) significance in accordance with Aboriginal tradition;

S. 4(1) def. of Department repealed by No. 11/2016 s. 5(9), new def. of Department inserted by No. 11/2016 s. 5(1).

Department means the Department of Premier and Cabinet;

development, in relation to land, includes the following kinds of development—

(a) the construction or exterior alteration or exterior decoration of a building;

(b) the demolition or removal of a building or works;

(c) the construction or carrying out of works;

(d) the subdivision or consolidation of land, including buildings and airspace;

(e) the placing or relocation of a building or works on land;

(f) the construction or putting up for display of signs or hoardings;

S. 4(1) def. of environmental and ecological knowledge inserted by No. 11/2016 s. 5(1).

environmental and ecological knowledge, in relation to Aboriginal tradition, includes knowledge of medicinal and other properties of flora and fauna, minerals and other elements of the environment;

S. 4(1) def. of Executive Director of Heritage Victoria inserted by No. 11/2016 s. 5(1).

Executive Director of Heritage Victoria means the Executive Director within the meaning of the Heritage Act 1995;

S. 4(1) def. of harm substituted by No. 11/2016 s. 5(5).

harm, in relation to Aboriginal cultural heritage, includes damage, deface, desecrate, destroy, disturb, injure or interfere with;

S. 4(1) def. of Head, Transport for Victoria inserted by No. 49/2019 s. 186(Sch. 4 item 1.1(a)).

Head, Transport for Victoria has the same meaning as in section 3 of the Transport Integration Act 2010;

S. 4(1) def. of heritage advisor inserted by No. 11/2016 s. 5(1).

heritage advisor means a person who has the qualifications and experience, or experience or knowledge, required under section 189;

S. 4(1) def. of heritage place inserted by No. 11/2016 s. 5(1).

heritage place has the same meaning as in the Heritage Act 1995;

human tissue includes an organ, or part, of a human body or a substance extracted from, or from a part of, a human body;

S. 4(1) def. of inspector repealed by No. 11/2016 s. 5(9).

interim protection declaration means an interim protection declaration made under this Act;

S. 4(1) def. of land use activity agreement inserted by No. 11/2016 s. 5(1).

land use activity agreement has the same meaning as in the Traditional Owner Settlement Act 2010;

S. 4(1) def. of municipal council inserted by No. 11/2016 s. 5(1), amended by No. 9/2020 s. 390(Sch. 1 item 1.1).

municipal council means a Council within the meaning of the Local Government Act 2020;

Museum of Victoria means the premises from time to time used by the Museums Board for its activities under the Museums Act 1983;

Museums Board means the Museums Board of Victoria established by section 10 of the Museums Act 1983;

Native Title Act means the Native Title Act 1993 of the Commonwealth;

S. 4(1) def. of native title agreement amended by No. 11/2016 s. 5(6).

native title agreement means an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements under the Native Title Act that is made between a group of Aboriginal persons and the Minister on behalf of the State;

native title party has the meaning given by section 6;

ongoing protection declaration means an ongoing protection declaration made under this Act;

S. 4(1) def. of Parks Victoria inserted by No. 11/2016 s. 5(1), amended by No. 19/2018 s. 244.

Parks Victoria has the same meaning as in the Parks Victoria Act 2018;

S. 4(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 1.1).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 4(1) def. of preliminary Aboriginal heritage test inserted by No. 11/2016 s. 5(1).

preliminary Aboriginal heritage test means a test prepared under Division 2A of Part 4;

S. 4(1) def. of public cemetery inserted by No. 11/2016 s. 5(1).

public cemetery has the same meaning as in the Cemeteries and Crematoria Act 2003;

S. 4(1) def. of public land manager inserted by No. 11/2016 s. 5(1), amended by Nos 49/2019 s. 186(Sch. 4 item 1.1(b)), 25/2025 s. 106(Sch. 1 item 1).

public land manager means any of the following—

(a) a committee of management;

(b) the Secretary to the Department of Energy, Environment and Climate Action;

(c) a municipal council;

(d) Parks Victoria;

(e) the Head, Transport for Victoria;

(f) VicTrack;

(g) a water authority;

S. 4(1) def. of recognition and settlement agreement inserted by No. 62/2010 s. 92.

recognition and settlement agreement has the same meaning as in the Traditional Owner Settlement Act 2010;

Register means the Victorian Aboriginal Heritage Register established under section 144;

S. 4(1) def. of registered Aboriginal intangible heritage inserted by No. 11/2016 s. 5(1).

registered Aboriginal intangible heritage means Aboriginal intangible heritage recorded by the Secretary in the Register;

S. 4(1) def. of registered Aboriginal intangible heritage agreement inserted by No. 11/2016 s. 5(1).

registered Aboriginal intangible heritage agreement means an Aboriginal intangible heritage agreement recorded by the Secretary in the Register;

registered Aboriginal party means a body that is registered under Part 10;

registered native title body corporate has the same meaning as in the Native Title Act;

registered native title claimant has the same meaning as in the Native Title Act;

registered native title holder means—

(a) a registered native title body corporate; or

(b) an entity, other than a registered native title body corporate, that is the subject of a determination of native title under the Native Title Act and is registered on the National Native Title Register established under that Act as holding native title rights and interests;

S. 4(1) def. of rehabilitate inserted by No. 11/2016 s. 5(1).

rehabilitate, in relation to land, means works using hand tools—

(a) to improve the condition of the land; or

(b) to prevent degradation or erosion of the land; or

(c) to revegetate the land;

relevant registered Aboriginal party means—

(a) in relation to a cultural heritage management plan, a registered Aboriginal party that is registered for the area to which the plan relates;

(b) in relation to a cultural heritage agreement, a registered Aboriginal party that is a party to the agreement;

(c) in relation to a cultural heritage permit, a registered Aboriginal party that, under section 39, provides advice to the Secretary on the application for the permit;

(d) in relation to an interim or ongoing protection declaration or an application for that declaration, a registered Aboriginal party for the area—

(i) in which the Aboriginal place to which the declaration or application relates is located; or

(ii) from which the Aboriginal object to which the declaration or application relates originated;

(e) in any other case, a registered Aboriginal party that the Secretary is satisfied is a relevant registered Aboriginal party in the circumstances of that case;

sacred means sacred according to Aboriginal tradition;

secret means secret according to Aboriginal tradition;

S. 4(1) def. of secret or sacred object inserted by No. 11/2016 s. 5(1).

secret or sacred object includes an Aboriginal object directly associated with a traditional Aboriginal burial;

Secretary means the Secretary to the Department;

S. 4(1) def. of sell amendedby No. 11/2016 s. 5(7).

sell, in relation to an Aboriginal object, means—

(a) dispose of by sale, barter or exchange; or

(b) agree, or offer, to dispose of by sale, barter or exchange; or

(c) advertise or expose for the purpose of sale, barter or exchange; or

(d) consign, or have possession of on consignment, for the purpose of sale, barter or exchange; or

(e) do anything referred to in paragraphs(a) to (d) through an onlineauction house;

sponsor, in relation to a cultural heritage management plan, means—

(a) if the plan is required under this Act in relation to an activity, the person who is seeking to undertake that activity; and

(b) in any other case, the person seeking the preparation of the plan;

State entity means a person or body that represents the State;

S. 4(1) def. of stop order amendedby No. 11/2016 s. 5(8).

stop order means a stop order issued under Division 2 of Part 6;

S. 4(1) def. of survey for Aboriginal cultural heritage inserted by No. 11/2016 s. 5(1).

survey for Aboriginal cultural heritage means—

(a) a survey of land, other than by disturbing or excavating the land, to discover Aboriginal cultural heritage; or

(b) a survey of land for the purposes of a preliminary Aboriginal heritage test;

S. 4(1) def. of traditional or familial links repealed by No. 11/2016 s. 5(9).

S. 4(1) def. of traditional owner inserted by No. 11/2016 s. 5(1).

traditional owner has the meaning given by section 7;

S. 4(1) def. of traditional owner group entity inserted by No. 62/2010 s. 92.

traditional owner group entity has the same meaning as in the Traditional Owner Settlement Act 2010;

S. 4(1) def. of 24-hour stop order inserted by No. 11/2016 s. 5(1).

24-hour stop order means a 24-hour stop order issued under Division 3 of Part 6;

S. 4(1) def. of university inserted by No. 11/2016 s. 5(1).

university means any of the following—

(a) Australian Catholic University;

(b) Deakin University;

(c) Federation University Australia;

(d) La Trobe University;

(e) Monash University;

(f) Royal Melbourne Institute of Technology;

(g) Swinburne University of Technology;

(h) The University of Melbourne;

(i) Victoria University;

use, in relation to land, includes use or proposed use for the purpose for which the land has been, is being or may be developed;

S. 4(1) def. of VicRoads inserted by No. 11/2016 s. 5(1), repealed by No. 49/2019 s. 186(Sch. 4 item 1.1(c)).

S. 4(1) def. of VicTrack inserted by No. 11/2016 s. 5(1).

VicTrack means Victorian Rail Track established by section 8 of the Rail Corporations Act 1996 and continued under section 116 of the Transport Integration Act 2010;

S. 4(1) def. of water authority inserted by No. 11/2016 s. 5(1).

water authority means an Authority within the meaning of the Water Act 1989;

works includes—

(a) any physical intervention, excavation or action that may result in a change to the structure, appearance or physical nature of a place; and

(b) any change to the natural or existing condition or topography of land; and

(c) the removal or destruction of trees; and

(d) the removal of vegetation or topsoil.

S. 4(2) amended by No. 11/2016 s. 5(10).

(2) If under the Public Administration Act 2004 the name of the Department of Premier and Cabinet is changed, a reference in the definition of "Department" in subsection (1) to that Department must, from the date when the name is changed, be treated as a reference to that Department by its new name.

(3) For the purposes of this Act, an object originates from an area whether it is still in its original location in that area or has been removed from that location.

5 What is an Aboriginal place?

S. 5(1) amended by No. 11/2016 s. 6(1).

(1) For the purposes of this Act, an Aboriginal place is an area in Victoria or the coastal waters of Victoria that is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria.

(2) For the purposes of subsection (1), area includes any one or more of the following—

(a) an area of land;

(b) an expanse of water;

(c) a natural feature, formation or landscape;

(d) an archaeological site, feature or deposit;

(e) the area immediately surrounding any thing referred to in paragraphs (c) and (d), to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people;

S. 5(2)(f) amended by No. 11/2016 s. 6(2).

(f) land set aside for the purpose of enabling Aboriginal ancestral remains to be re‑interred or otherwise deposited on a permanent basis;

(g) a building or structure.

6 Who is a native title party for an area?

(1) For the purposes of this Act, a body is a native title party for an area if it is any of the following—

(a) a registered native title claimant for the area;

(b) a person who was a registered native title claimant for the area, but only if—

(i) the person's claim has failed, but there is no other registered native title claimant for the area, and there is not, and never has been, a native title holder for the area; or

(ii) the person has surrendered the person's native title in respect of the area under a native title agreement; or

(iii) the person's native title has been compulsorily acquired or has otherwise been extinguished;

(c) a registered native title holder for the area;

(d) a person who was a registered native title holder for the area, but only if—

(i) the person has surrendered the person's native title in respect of the area under a native title agreement; or

(ii) the person's native title has been compulsorily acquired or has otherwise been extinguished.

(2) A registered native title claimant or a person referred to in subsection (1)(b) is a native title party for the whole area included within the outer boundaries of the area in relation to which the application was made under the Native Title Act for a determination of native title, regardless of the nature and extent of the claimant's claims in relation to any particular part of the whole area.

(3) A registered native title holder or a person referred to in subsection (1)(d) is a native title party for the whole area included within the outer boundaries of the area in relation to which the application was made under the Native Title Act for a determination of native title, regardless of the extent to which native title was found to exist in relation to any particular part of the whole area.

S. 7 substituted by No. 11/2016 s. 7.

7 Traditional owners

(1) For the purposes of this Act, a person is a traditional owner of an area if—

(a) the person is an Aboriginal person with particular knowledge about traditions, observances, customs or beliefs associated with the area; and

(b) the person—

(i) has responsibility under Aboriginal tradition for significant Aboriginal places located in, or significant Aboriginal objects originating from, the area; or

(ii) is a member of a family or clan group that is recognised as having responsibility under Aboriginal tradition for significant Aboriginal places located in, or significant Aboriginal objects originating from, the area.

(2) For the purposes of this Act, a person is a traditional owner of Aboriginal ancestral remains if the person is an Aboriginal person who—

(a) has responsibility under Aboriginal tradition for the remains; and

(b) is a member of a family or clan group that is recognised as having responsibility under Aboriginal tradition for the remains.

(3) For the purposes of this Act, a person is a traditional owner of a secret or sacred object if the person is an Aboriginal person who—

(a) has responsibility under Aboriginal tradition for the object; and

(b) is a member of a family or clan group that is recognised as having responsibility under Aboriginal tradition for the object.

8 Heritage significance not affected by damage

For the purposes of this Act, Aboriginal cultural heritage does not cease to be Aboriginal cultural heritage if it is damaged or modified.

S. 9 (Heading) amended by No. 77/2008 s. 129(Sch. 2 item 1.1).

S. 9 amended by Nos 77/2008 s. 129(Sch. 2 item 1.2), 11/2016 s. 8.

9 Act does not affect operation of Coroners Act 2008

Subject to section 19A, nothing in this Act affects the operation of the Coroners Act 2008.

10 Native title rights and interests

(1) Nothing in this Act is intended to affect native title rights and interests otherwise than in accordance with the Native Title Act.

(2) The provisions of this Act must be interpreted in a way that does not prejudice native title rights and interests to the extent that those rights and interests are recognised and protected by the Native Title Act.

(3) In this section, affect and native title rights and interests have the same meanings as in the Native Title Act.

11 Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2—Ownership and custody of Aboriginal cultural heritage

Division 1—Underlying principles

S. 12 amended by No. 11/2016 s. 9(4) (ILA s. 39B(1)).

12 Principles

(1) The following principles underlie this Part—

S. 12(1)(a) amended by No. 11/2016 s. 9(1).

(a) as far as practicable, Aboriginal cultural heritage should be owned by and returned to traditional owners of the area from which the Aboriginal cultural heritage is reasonably believed to have originated if it is any of the following—

S. 12(1)(a)(i) amended by No. 11/2016 s. 9(2).

(i) Aboriginal ancestral remains;

(ii) secret or sacred Aboriginal objects;

S. 12(1)(aa) inserted by No. 11/2016 s. 9(3).

(aa) as far as practicable, registered Aboriginal intangible heritage should be owned by any registered Aboriginal party, registered native title holder or traditional owner group entity applying to register that heritage on behalf of traditional owners of the area from which the Aboriginal intangible heritage is reasonably believed to have originated;

(b) Aboriginal cultural heritage of the kind referred to in paragraph (a) that is in the custody of the State should continue to be protected by the State until it can be transferred into the protection of its Aboriginal owners.

S. 12(2) inserted by No. 11/2016 s. 9(4).

(2) In this section—

own includes collective ownership and custodianship as understood by traditional owners in accordance with Aboriginal tradition.

Pt 2 Div. 2 (Heading) substituted by No. 11/2016 s. 10.

Division 2—Aboriginal ancestral remains

Note to Pt 2 Div. 2 inserted by No. 11/2016 s. 10.

Section 13 of this Act, as in force before its repeal by section 11 of the Aboriginal Heritage Amendment Act 2016, made certain Aboriginal people the owners of Aboriginal ancestral remains.

S. 13 repealed by No. 11/2016 s. 11.

S. 14 substituted by No. 11/2016 s. 12.

14 Reporting and transfer of Aboriginal ancestral remains in custody of public entities and universities

(1) Within 2 years of the commencement of section 12 of the Aboriginal Heritage Amendment Act 2016, a public entity or a university must—

(a) notify the Council in writing of any Aboriginal ancestral remains that are in its possession on the commencement of that section; and

(b) give a report in the prescribed form to the Council, including a list and details of the Aboriginal ancestral remains.

Penalty: 3000 penalty units.

(2) The Council must, within 90 days of receiving a report under subsection (1), give notice of the report—

(a) to any relevant traditional owner of the Aboriginal ancestral remains referred to in the report; and

(b) to any relevant registered Aboriginal party.

(3) A public entity or a university must take all reasonable steps to transfer the Aboriginal ancestral remains into the custody of the Council as soon as practicable after giving a report to the Council under subsection (1).

(4) This section applies in addition to any other provision of this Act relating to the reporting and transfer of Aboriginal ancestral remains to the Council.

(5) In this section—

public entity has the same meaning as in the Public Administration Act 2004.

Ss 15, 16 repealed by No. 11/2016 s. 13.

S. 17 (Heading) amended by No. 11/2016 s. 14(1).

17 Reporting Aboriginal ancestral remains by persons other than coroner

(1) This section applies to a person if the person—

(a) knows of the existence and location of human remains; and

S. 17(1)(b) amended by No. 11/2016 s. 14(2).

(b) knows that the human remains are, or are reasonably likely to be, Aboriginal ancestral remains.

S. 17(2) substituted by No. 11/2016 s. 14(3).

(2) This section does not apply to an Aboriginal person—

(a) who is the rightful owner of the Aboriginal ancestral remains; or

(b) who reasonably believes that transferring the remains would be contrary to Aboriginal tradition.

(3) A person to whom this section applies must—

S. 17(3)(a) amended by No. 11/2016 s. 14(4).

(a) as soon as practicable, report the existence of the human remains to the Council; and

S. 17(3)(b) amended by No. 11/2016 s. 14(5).

(b) give the Council all details about the location and nature of the human remains that the Council reasonably requires.

Note to s. 17(3) inserted by No. 11/2016 s. 14(6).

S. 17(4) amended by No. 11/2016 s. 14(7).

(4) It is a defence to proceedings under subsection (3) if the person had reasonable cause to believe that the Council was aware of the existence and location of the human remains.

S. 18 (Heading) amended by No. 11/2016 s. 15(1).

18 Council must determine how to act on report

S. 18(1) amended by No. 11/2016 s. 15(2).

(1) This section applies if the Council—

(a) receives a report under section 17; and

S. 18(1)(b) amended by No. 11/2016 s. 15(3).

(b) is satisfied that the report relates to Aboriginal ancestral remains.

S. 18(2) amended by No. 11/2016 s. 15(4).

(2) The Council must—

(a) inform the person who gave the report of the person's obligations under section 19 (if applicable); and

S. 18(2)(b) amended by No. 11/2016 s. 15(5).

(b) after taking reasonable steps to consult with any Aboriginal person or body the Council believes may have an interest in the Aboriginal ancestral remains, determine the appropriate course of action to be taken in relation to the Aboriginal ancestral remains.

S. 19 (Heading) amended by No. 11/2016 s. 16(1).

19 Transfer of Aboriginal ancestral remains to Council

(1) This section applies to a person who—

S. 19(1)(a) amended by No. 11/2016 s. 16(2).

(a) is in possession of Aboriginal ancestral remains that are not presently part of, or contained within, an Aboriginal place; and

S. 19(1)(b) amended by No. 11/2016 s. 16(3).

(b) knows or ought reasonably to know, or is reckless as to whether, the Aboriginal ancestral remains are Aboriginal ancestral remains—

but does not apply—

(c) to the State; or

S. 19(1)(d) amended by No. 11/2016 s. 16(4).

(d) to an Aboriginal person who is the rightful owner of the Aboriginal ancestral remains; or

S. 19(1)(e) inserted by No. 11/2016 s. 16(5).

(e) to an Aboriginal person who reasonably believes that transferring the Aboriginal ancestral remains would be contrary to Aboriginal tradition; or

S. 19(1)(f) inserted by No. 11/2016 s. 16(5).

(f) to a coroner.

S. 19(2) amended by No. 11/2016 s. 16(6).

(2) The person must, as soon as practicable, take all reasonable steps to transfer the Aboriginal ancestral remains into the custody of the Council.

Note to s. 19(2) inserted by No. 11/2016 s. 16(7).

S. 19A inserted by No. 11/2016 s. 17.

19A Transfer of Aboriginal ancestral remains to Council by coroner

A coroner who has reported to the Council that a body is, or is likely to be, Aboriginal ancestral remains must, as soon as practicable, transfer the remains into the custody of the Council.

A coroner is required under sections 16A and 23(4) of the Coroners Act 2008 to report to the Council if, in investigating a death, the coroner believes that the body is, or is likely to be, Aboriginal ancestral remains, or if a preliminary examination performed by a medical investigator determines that the body is, or is likely to be, Aboriginal ancestral remains.

S. 20 substituted by No. 11/2016 s. 18.

20 What must the Council do with transferred Aboriginal ancestral remains?

(1) If Aboriginal ancestral remains are transferred to the Council under sections 14, 19, 19A or 178, the Council must—

(a) transfer the remains to any relevant traditional owner of the remains, or to any relevant registered Aboriginal party that the Council is satisfied is entitled to and willing to take possession, custody or control of the remains; or

(b) transfer the remains to the Museums Board for safekeeping; or

(c) otherwise deal with the remains as the Council thinks appropriate.

(2) The Museums Board must accept for safekeeping any Aboriginal ancestral remains transferred to the Board under subsection (1).

S. 20A inserted by No. 11/2016 s. 18.

20A Reporting of interment of Aboriginal ancestral remains outside of an Aboriginal place

A person who inters Aboriginal ancestral remains outside of an Aboriginal place must, as soon as practicable, report the location of the interment to the Secretary.

Division 3—Secret or sacred Aboriginal objects

S. 21 (Heading) amended by No. 11/2016 s. 19(1).

21 Ownership of secret or sacred objects before the Aboriginal Heritage Amendment Act 2016

(1) This section applies to an Aboriginal object that—

(a) is a secret or sacred object; and

S. 21(1)(b) amended by No. 11/2016 s. 19(2).

(b) is, immediately before the commencement of this section, in the custody of a State entity, or, on or after that commencement but before the commencement of section 20 of the Aboriginal Heritage Amendment Act 2016, comes into the custody of a State entity.

(2) Aboriginal people who have a traditional or familial link with the object, if they are not already the owners of the object, become the owners—

(a) if the object was in the custody of a State entity immediately before the commencement of this section, on that commencement; or

(b) in any other case, when the object comes into the custody of a State entity.

S. 21A inserted by No. 11/2016 s. 20.

21A Ownership of secret or sacred objects after the Aboriginal Heritage Amendment Act 2016

(1) This section applies to an Aboriginal object that is a secret or sacred object that—

(a) is, on the commencement of this section, in the custody of a person (other than an Aboriginal person who is the rightful owner of the object) or, after that commencement, comes into the custody of that person; or

(b) on or after the commencement of this section, comes into the custody of a State entity.

(2) The traditional owners of an area in which the object is reasonably believed to have originated, if they are not already the owners of the object, become the owners—

(a) if the object was in the custody of a person (other than an Aboriginal person who is the rightful owner of the object) on the commencement of this section, on that commencement; or

(b) if the object was in the custody of a State entity on the commencement of this section, on that commencement; or

(c) in any other case, when the object comes into the custody of the person or the State entity.

(3) A person who has custody of an Aboriginal object that is a secret or sacred object but who is not the owner of the object must, as soon as practicable, take all reasonable steps to transfer the object into the custody of the Council.

Penalty: In the case of a natural person, 120 penalty units;

S. 21B inserted by No. 11/2016 s. 20.

21B What must the Council do with transferred secret or sacred objects?

(1) If an Aboriginal object that is a secret or sacred object is transferred to the Council under section 21A, the Council must—

(a) transfer the object to an Aboriginal person or a registered Aboriginal party that the Council is satisfied is entitled to and willing to take possession, custody or control of the object; or

(b) transfer the object to the Museums Board for safekeeping; or

(c) otherwise deal with the object as the Council thinks appropriate.

(2) The Museums Board must accept for safekeeping any object transferred to the Board under subsection (1).

22 Return of secret or sacred objects by State entity

(1) An Aboriginal person who, whether by virtue of this Act or otherwise, owns a secret or sacred Aboriginal object that is in the custody of a State entity may ask that entity—

(a) to return the object to him or her; or

(b) to continue to be the custodian of the object.

(2) If the State entity is satisfied that the person who makes a request under subsection (1) is the owner of the Aboriginal object, the entity must comply with the request to the greatest extent practicable.

(3) The State entity may seek the advice of the Council in relation to a request under subsection (1).

(4) A person who owns an Aboriginal object is not limited to making only one request under subsection (1).

S. 23 amended by No. 11/2016 s. 21(1).

23 Return of secret or sacred objects by other entities

Atraditional owner of a secret or sacred Aboriginal object held or controlled by a university, museum or other institution may—

S. 23(a) amended by No. 11/2016 s. 21(2).

(a) on the initiative of the traditional owner, or in conjunction with one or more other Aboriginal persons, negotiate directly with the university, museum or other institution; or

S. 23(b) amended by No. 11/2016 s. 21(3).

(b) ask the Minister to negotiate with the university, museum or other institution on behalf of the traditional owner—

for the return of the secret or sacred Aboriginal object.

Division 4—Aboriginal places and objects

24 Reporting discovery of Aboriginal places and objects

(1) This section applies if—

(a) a person discovers an Aboriginal place or object; and

(b) the person knows that the place or object is an Aboriginal place or object.

(2) The person must report the discovery to the Secretary as soon as practicable unless, at the time of making the discovery, the person had reasonable cause to believe that the Register contained a record of the place or object.

Note to s. 24(2) inserted by No. 11/2016 s. 134(1).

(3) If a discovery of an Aboriginal place or object is made in the course of works being carried out on any land, the person in charge of the works is deemed for the purposes of this section to be the person who discovered the place or object.

25 Continued use of surface of land

(1) This section applies if an Aboriginal place or object is located on the surface of land and—

(a) under the tenure on which the land is held, the owner or occupier of the land is entitled to the use and enjoyment of the surface of the land; or

(b) a person is otherwise entitled to the use and enjoyment of the surface of the land.

(2) Despite the existence of the Aboriginal place or object, the owner, occupier or other person is entitled to the use and enjoyment of the land to the extent that the person does not contravene section 27 or 28.

Pt 2 Div. 5 (Heading) amended by No. 11/2016 s. 22.

Division 5—Role of the Museums Board

S. 26 (Heading) amended by No. 11/2016 s. 23(1).

26 Role of Museums Board

(1) The Museums Board may accept the custody of Aboriginal cultural heritage.

(2) While the Museums Board has custody of any Aboriginal cultural heritage transferred to it under this Act, the Museums Board must ensure that the heritage is lodged at the Museum of Victoria.

S. 26(2A) inserted by No. 11/2016 s. 23(2).

(2A) Subsection (1) does not apply to any Aboriginal ancestral remains or secret or sacred Aboriginal objects transferred to the Museums Board for safekeeping under this Act.

S. 26(3) amended by No. 11/2016 s. 23(3).

(3) Section 25 of the Museums Act 1983 does not apply to Aboriginal ancestral remains or secret or sacred Aboriginal objects.

Part 3—Protection of Aboriginal cultural heritage

Division 1—Protection from harm

27 Harming Aboriginal cultural heritage unlawful

S. 27(1) substituted by No. 11/2016 s. 24(1).

(b) at the time of the act or omission the person knew that the act or omission was likely to harm Aboriginal cultural heritage.

S. 27(3) substituted by No. 11/2016 s. 24(2).

(b) at the time of the act or omission the person was reckless as to whether the act or omission was likely to harm Aboriginal cultural heritage.

S. 27(5) substituted by No. 11/2016 s. 24(3).

(5) A person is guilty of an offence if—

(b) at the time of the act or omission the person was negligent as to whether the act or omission was likely to harm Aboriginal cultural heritage.

(6) A person who is guilty of an offence under subsection (5) is liable to a penalty not exceeding—

(7) An offence under this section is an indictable offence.

Note to s. 27 substituted as Notes by No. 11/2016 s. 24(4).

Notes

1. The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

2. Section 187A applies to an offence against subsection (1), (3) or (5).

S. 28 substituted by No. 11/2016 s. 25.

28 A person must not harm Aboriginal cultural heritage

A person must not do an act that harms or is likely to harm Aboriginal cultural heritage.

Penalty: In the case of a natural person, 60 penalty units;

Section 187A applies to an offence against this section.

29 When is harm permitted?

A person who does an act that harms or is likely to harm Aboriginal cultural heritage does not commit an offence under section 27 or 28 if—

(a) the person is acting—

(i) in accordance with a cultural heritage permit or approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or

S. 29(a)(ia) inserted by No. 11/2016 s. 26(1).

(ia) in accordance with an Aboriginal cultural heritage land management agreement; or

(ii) in accordance with Aboriginal tradition as it relates to the Aboriginal cultural heritage; or

S. 29(b) amended by No. 11/2016 s. 26(2).

(b) the person does the act in the course of preparing a cultural heritage management plan or an Aboriginal cultural heritage land management agreement in accordance with this Act; or

S. 29(c) amended by No. 11/2016 s. 26(3).

(c) the harm is the result of doing an act that is necessary because of an emergency; or

S. 29(d) inserted by No. 11/2016 s. 26(4).

(d) the person is a coroner or a person assisting the coroner who does the act in the course of determining whether human remains are Aboriginal ancestral remains.

30 Order to repair or restore Aboriginal cultural heritage

(1) This section applies if a court accepts a plea of guilty from a person in relation to, or finds a person guilty of, or convicts a person of, an offence under this Division in relation to Aboriginal cultural heritage.

S. 30(2) amended by No. 68/2009 s. 97(Sch. item 1.1).

(2) In addition to any other sentence imposed in respect of the offence, the court may order the person to pay to the State or the Council or a relevant registered Aboriginal party, an amount of money for or towards—

(a) the cost of any repair or restoration of the Aboriginal cultural heritage needing to be carried out; and

(b) the cost of any repair or restoration of anything else that is not the Aboriginal cultural heritage, but that is associated with the Aboriginal cultural heritage and also needs to be repaired or restored because of the offence.

S. 30(3) amended by No. 11/2016 s. 27.

(3) The court may also order the person to take any reasonable steps that the court thinks appropriate for any restoration of land that needs to be done because of the offence.

Division 2—Acquisition and grant of land

31 Acquisition of Aboriginal place

(1) The Minister may acquire, by agreement or compulsory acquisition, any land that contains an Aboriginal place if the Minister is satisfied that—

(a) the Aboriginal place is of such cultural heritage significance to Aboriginal people that it is irreplaceable; and

(b) no other practicable arrangements can be made to ensure the proper protection and maintenance of the Aboriginal place.

(2) Subject to subsections (3) and (4), the Land Acquisition and Compensation Act 1986 applies to a compulsory acquisition by the Minister under this section and for that purpose—

S. 31(2)(a) amended by No. 41/2025 s. 3(Sch. 1 item 1).

(a) the Aboriginal Heritage Act 2006 is the special Act; and

(b) the Minister is the Authority.

(3) Despite anything to the contrary in the Land Acquisition and Compensation Act 1986, land acquired by the Minister under this section vests in the Crown.

S. 31(4) amended by No. 11/2016 s. 28.

(4) A person is not entitled to compensation under the Land Acquisition and Compensation Act 1986 or this Act for the value of an Aboriginal object or Aboriginal ancestral remains on or under the surface of the land acquired under this section.

32 Grant of land

(1) The Governor in Council, on behalf of the Crown, may grant to any registered Aboriginal party or other Aboriginal person or body for an estate in fee simple any land acquired under section 31.

(2) A Crown grant under this section is subject to any terms, conditions, covenants, exceptions, reservations and limitations that the Governor in Council may determine.

(3) This section applies despite anything to the contrary in the Land Act 1958.

Division 3—Control of activities

33 Possession of Aboriginal object

(1) A person must not have in the person's possession an Aboriginal object if the person knows, or ought reasonably to know, that the object is an Aboriginal object.

Note to s. 33(1) inserted by No. 11/2016 s. 134(1).

(2) A person who has an Aboriginal object in the person's possession does not commit an offence under subsection (1) if—

(a) the person is acting—

(i) under the authority of another provision of this Act that applies to the Aboriginal cultural heritage; or

(ii) in accordance with a cultural heritage permit, approved cultural heritage management plan or cultural heritage agreement that applies to the Aboriginal cultural heritage; or

(b) the person is the owner of the Aboriginal cultural heritage; or

(c) the person is acting with the consent of the owner of the Aboriginal cultural heritage; or

(d) the person's possession of the object is necessary because of an emergency.

34 Control of activities

(1) Subject to this section, a person must not—

(a) disturb or excavate any land for the purpose of uncovering or discovering Aboriginal cultural heritage; or

(b) carry out scientific research on an Aboriginal place or remove an Aboriginal object from that place for the purpose of that research; or

S. 34(1)(c) amended by No. 11/2016 s. 29(1).

(c) sell an Aboriginal object; or

(d) remove an Aboriginal object from Victoria—

other than in accordance with the terms of a cultural heritage permit if the person knows, or ought reasonably to know, or is reckless as to whether, the cultural heritage is Aboriginal cultural heritage.

Note to s. 34(1) substituted as Notes by No. 11/2016 s. 29(2).

Notes

1. Certain permits cannot be obtained in relation to Aboriginal ancestral remains or secret or sacred Aboriginal objects: see section 37(1). The protection of Aboriginal ancestral remains and secret or sacred Aboriginal objects is dealt with in Part 2.

2. Section 187A applies to an offence against this subsection.

(2) Subsection (1) does not apply—

S. 34(2)(a) amended by No. 11/2016 s. 29(3).

(a) to anything done in the course of preparing a cultural heritage management plan in accordance with Part 4 or an Aboriginal cultural heritage land management agreement; or

S. 34(2)(b) amended by No. 11/2016 s. 29(4).

(b) to anything done in accordance with an approved cultural heritage management plan or an Aboriginal cultural heritage land management agreement; or

(c) to a public entity in respect of an Aboriginal object or a collection of Aboriginal objects that the public entity removes from Victoria for the purpose of—

(i) lending the object or collection to a person or body located outside Victoria; or

(ii) returning the object or collection to a person or body outside Victoria that had lent the object or collection to the public entity.

(3) In this section, public entity means—

(a) the Museums Board; or

(b) the Council of Trustees of the National Gallery of Victoria (within the meaning of the National Gallery of Victoria Act 1966); or

(c) a university; or

(d) a gallery or museum conducted by a body established for a public purpose.

S. 34A inserted by No. 11/2016 s. 30.

34A Surveys for Aboriginal cultural heritage

(1) A person intending to carry out a survey for Aboriginal cultural heritage must give written notice of the person's intention to carry out the survey—

(a) to each relevant registered Aboriginal party; and

(b) to the Secretary (unless the Secretary is the person intending to carry out the survey); and

(c) to the owner or occupier of any land within the area to which the survey relates.

(2) A notice under subsection (1) must—

(a) contain the name and contact details of the person intending to carry out the survey for Aboriginal cultural heritage; and

(b) contain a description of the proposed activity to which the survey relates; and

(c) clearly identify the area in respect of which the survey is to be prepared; and

(d) specify the dates within which the survey is proposed to be undertaken.

(3) On receiving a notice under subsection (1), a registered Aboriginal party may, within 14 days, notify the person intending to carry out the survey whether the party wishes to participate in the survey.

(4) A registered Aboriginal party that notifies the person under subsection (3) may participate in the conduct of the survey.

(5) A person who carries out a survey for Aboriginal cultural heritage must give a copy of any relevant documentation to the Secretary for recording on the Register by the earlier of—

(a) 30 days after producing the final report relating to the survey; or

(b) within 12 months after giving notice under subsection (1).

Penalty: In the case of a natural person, 10 penalty units;

(6) If a person intending to carry out a survey for Aboriginal cultural heritage gives a notice under subsection (1) but does not carry out the survey, the person must notify the Secretary that the survey was not carried out.

(7) This section does not apply to a person intending to carry out—

(a) a survey for Aboriginal cultural heritage within an area to which an Aboriginal cultural heritage land management agreement applies; or

(b) a survey for the purposes of a cultural heritage management plan.

(8) In this section—

relevant documentation means any site records, photographs, maps and plans relating to the survey for Aboriginal cultural heritage, and a copy of any final report.

35 Forfeiture of Aboriginal object to Crown

S. 35(1) amended by No. 68/2009 s. 97(Sch. item 1.2).

(1) On conviction for an offence against section 34 involving an Aboriginal object, in addition to any other sentence imposed in respect of the offence, the court by which the person was convicted—

(a) must, if the object is owned by the person; and

(b) may in all other cases—

order that the object be forfeited to the Crown.

(2) In this section, conviction includes a plea of guilty or a finding of guilt by a court, even if a conviction is not recorded.

Division 4—Cultural heritage permits

S. 35A inserted by No. 11/2016 s. 31.

35A Definition

In this Division—

approval body, in relation to an application for a cultural heritage permit, means—

(a) a relevant registered Aboriginal party; or

(b) if there is no relevant registered Aboriginal party—the Secretary; or

(c) if the applicant is a registered Aboriginal party or the Secretary—the Council.

36 Application for cultural heritage permit

S. 36(1) amended by No. 11/2016 s. 32(1).

(1) A person may apply to an approval body for a cultural heritage permit authorising the person to do one or more of the following—

(a) disturb or excavate any land for the purpose of uncovering or discovering Aboriginal cultural heritage;

S. 36(1)(b) substituted by No. 11/2016 s. 32(2).

(b) carry out research on an Aboriginal place or Aboriginal object, including the removal of an Aboriginal object from Victoria for the purposes of that research;

(c) carry out an activity that will, or is likely to, harm Aboriginal cultural heritage;

S. 36(1)(d) amended by No. 11/2016 s. 32(3).

(d) sell an Aboriginal object;

S. 36(1)(e) amended by No. 11/2016 s. 32(4).

(e) remove an Aboriginal object from Victoria;

S. 36(1)(f) inserted by No. 11/2016 s. 32(5).

(f) rehabilitate land at an Aboriginal place, including land containing burial grounds for Aboriginal ancestral remains;

S. 36(1)(g) inserted by No. 11/2016 s. 32(5).

(g) inter Aboriginal ancestral remains at an Aboriginal place.

(2) An application must—

(a) be made in the approved form; and

(b) be accompanied by the relevant prescribed fee (if any).

37 Restrictions on grant of permit

S. 37(1) substituted by No. 11/2016 s. 33(1).

(1) A cultural heritage permit authorising the applicant to do anything referred to in section 36(1)(c) to (e) must not be granted in respect of Aboriginal ancestral remains or an Aboriginal object that is a secret or sacred Aboriginal object.

S. 37(1A) inserted by No. 11/2016 s. 33(1).

(1A) The Secretary must consult with the Council before issuing a cultural heritage permit if the Secretary is the approval body and the application is for a permit to do anything referred to in section 36(1)(a) and (b) in respect of Aboriginal ancestral remains.

(2) A cultural heritage permit must not be granted for an activity for which a cultural heritage management plan is required under this Act.

S. 37(3) inserted by No. 11/2016 s. 33(2).

(3) A cultural heritage permit must not be granted in respect of Aboriginal intangible heritage.

Ss 38, 39 repealed by No. 11/2016 s. 34.

40 Determination of application

S. 40(1) substituted by No. 11/2016 s. 35(1).

(1) An approval body must consider every application for a cultural heritage permit to that body.

S. 40(2) amended by No. 11/2016 s. 35(2).

(2) After considering an application, theapproval body may decide—

(a) to grant the cultural heritage permit; or

(b) to refuse to grant the cultural heritage permit.

S. 40(3) substituted by No. 11/2016 s. 35(3).

(3) An approval body must decide to grant or refuse to grant a cultural heritage permit within 30 days of receiving an application.

S. 40(3A) inserted by No. 11/2016 s. 35(3).

(3A) An approval body may request the applicant to provide any additional information that the body reasonably considers necessary to assist the body's decision.

S. 40(3B) inserted by No. 11/2016 s. 35(3).

(3B) A request under subsection (3A) must be made in writing and include the following information—

S. 40(3C) inserted by No. 11/2016 s. 35(3).

(3C) The period referred to in subsection (3)—

(a) ceases to run when the approval body requests the additional information; and

(b) recommences to run when the information is provided to the approval body.

S. 40(3D) inserted by No. 11/2016 s. 35(3).

(3D) The period referred to in subsection (3)—

(a) ceases to run when the Secretary consults with the Council under subsection (3G); and

(b) recommences to run when the Council gives written advice to the Secretary or after 30 days, whichever is earlier.

S. 40(3E) inserted by No. 11/2016 s. 35(3).

(3E) If the approval body fails to decide to grant or refuse to grant a cultural heritage permit in accordance with this section, the approval body is taken to have refused to grant the permit.

S. 40(3F) inserted by No. 11/2016 s. 35(3).

(3F) If the approval body is the Secretary, the Secretary must consult with, and consider the views of, any Aboriginal person or Aboriginal body that the Secretary considers relevant when considering the application.

S. 40(3G) inserted by No. 11/2016 s. 35(3).

(3G) If the application is to rehabilitate land containing burials of Aboriginal ancestral remains or to inter Aboriginal ancestral remains, and there is no relevant registered Aboriginal party, the Secretary must consult with the Council when considering the application.

S. 40(4) amended by No. 11/2016 s. 35(4).

(4) If the grant of a cultural heritage permit would authorise an activity that would, or would be likely to, harm Aboriginal cultural heritage, the approvalbody must, before granting the permit, consider—

(a) the nature of the Aboriginal cultural heritage; and

(b) the impact, or the likely impact, of the activity on the Aboriginal cultural heritage; and

(c) the extent to which the harm to the Aboriginal cultural heritage could be minimised.

S. 41 substituted by No. 11/2016 s. 36.

41 Conditions on cultural heritage permits

(1) The approval body may include in the cultural heritage permit any conditions that the body reasonably considers appropriate, including—

(a) a condition that the activity authorised by the cultural heritage permit be supervised by a heritage advisor; or

(b) a condition that any Aboriginal cultural heritage found in the course of the activity authorised by the cultural heritage permit be conserved in a way specified in the permit; or

(c) a condition that specified things are to be done to the satisfaction of the approval body.

(2) The approval body must not include in the cultural heritage permit a condition that the applicant pay or give money or money's worth to the registered Aboriginal party.

S. 41A inserted by No. 11/2016 s. 36.

41A Offence to fail to comply with cultural heritage permit

The holder of a cultural heritage permit must comply with the conditions of the permit.

Penalty: In the case of a natural person, 60penalty units;

In the case of a body corporate, 150 penalty units.

Section 187A applies to an offence against this section.

S. 41B inserted by No. 11/2016 s. 36.

41B Transfer of cultural heritage permits

(1) The holder of a cultural heritage permit may transfer the permit to another person with the written approval of the approval body.

(2) If the approval body is the Secretary, the Secretary must consult with, and consider the views of, any Aboriginal person or Aboriginal body that the Secretary considers relevant before approving the transfer of a cultural heritage permit.

S. 41C inserted by No. 11/2016 s. 36.

41C Amendments to cultural heritage permits

This Division applies to a proposed amendment to a cultural heritage permit as if the proposed amendment were an application for a cultural heritage permit.

S. 41D inserted by No. 11/2016 s. 36.

41D Taking effect of cultural heritage permits

A cultural heritage permit takes effect when a copy of the permit is lodged with the Secretary after being approved by the approval body.

Part 4—Cultural heritage management plans

Division 1—What is a cultural heritage management plan?

42 What is a cultural heritage management plan?

(1) For the purposes of this Act, the preparation of a cultural heritage management plan for an area involves—

(a) an assessment of the area to determine the nature of any Aboriginal cultural heritage present in the area; and

(b) a written report setting out—

(i) the results of the assessment; and

S. 42(1)(b)(ii) amended by No. 11/2016 s. 37.

(ii) conditions to be complied with before, during and after an activity to manage and protect the Aboriginal cultural heritage identified in the assessment.

(2) The written report is the cultural heritage management plan.

43 Procedure for assessment

(1) An assessment for the purposes of a cultural heritage management plan must comply with the prescribed standards.

(2) Without limiting the range of activities that may be undertaken during an assessment of an area for the purposes of a cultural heritage management plan, the assessment may include—

(a) research into information relating to Aboriginal cultural heritage; and

S. 43(2)(b) substituted by No. 11/2016 s. 38.

(b) a survey for Aboriginal cultural heritage; and

(c) the disturbance or excavation of land to uncover or discover Aboriginal cultural heritage.

44 Who may prepare a plan?

(1) Any person, other than the Minister, may be the sponsor of a cultural heritage management plan.

(2) Without limiting subsection (1), the following may sponsor a cultural heritage management plan—

(a) the Secretary;

(b) a municipal council;

(c) a registered Aboriginal party;

(d) a representative of a registered Aboriginal party appointed for that purpose by the party and acting on behalf of the party;

(e) the proponent of an activity;

(f) a representative of a proponent of an activity appointed for that purpose by the proponent and acting on behalf of the proponent.

45 Voluntary cultural heritage management plan

A person may prepare a cultural heritage management plan even if the plan is not required under this Act.

S. 45A inserted by No. 11/2016 s. 39.

45A Amendments to approved cultural heritage management plans

(1) Subject to subsection (2), this Division applies to a proposed amendment to an approved cultural heritage management plan as if the proposed amendment were a new cultural heritage management plan.

(2) An assessment of an area under section 42(1)(a) is not required for a proposed amendment to an approved cultural heritage management plan if the assessment for the purposes of the cultural heritage management plan before it was approved included the matters specified in the proposed amendment.

Division 2—When is a cultural heritage management plan required?

S. 46 amended by No. 11/2016 s. 40(3) (ILA s. 39B(1)).

46 Mandatory cultural heritage management plans

(1) A cultural heritage management plan is required under this Part for a proposed activity if—

(a) the regulations require the preparation of the plan for the activity; or

(b) the Minister directs the preparation of a plan for the activity under section 48; or

S. 46(1)(c) amended by No. 56/2009 s. 264(Sch. 2 item 1.1).

(c) a plan is required for the activity under section 49; or

S. 46(1)(d) inserted by No. 56/2009 s. 264(Sch. 2 item 1.2), amended by No. 11/2016 s. 40(1).

(d) a plan is required for the activity under section 49A; or

S. 46(1)(e) inserted by No. 11/2016 s. 40(2).

(e) the Secretary receives an application for the certification of a preliminary Aboriginal heritage test determining that a proposed activity requires the preparation of a cultural heritage management plan, and the Secretary certifies that the test is correct.

S. 46(2) inserted by No. 11/2016 s. 40(3).

(2) A person is guilty of an offence if—

(c) at the time of commencing the activity, the person knew the activity required a cultural heritage management plan.

S. 46(3) inserted by No. 11/2016 s. 40(3).

(3) A person who is guilty of an offence under subsection (2) is liable to a penalty not exceeding—

240 penalty units;

1200 penalty units.

S. 46(4) inserted by No. 11/2016 s. 40(3).

(4) A person is guilty of an offence if—

(c) at the time of commencing the activity, the person was reckless as to whether the activity required a cultural heritage management plan.

S. 46(5) inserted by No. 11/2016 s. 40(3).

(5) A person who is guilty of an offence under subsection (4) is liable to a penalty not exceeding—

120 penalty units;

600 penalty units.

S. 46(6) inserted by No. 11/2016 s. 40(3).

(6) A person is guilty of an offence if—

(c) at the time of commencing the activity, the person was negligent as to whether the activity required a cultural heritage management plan.

S. 46(7) inserted by No. 11/2016 s. 40(3).

(7) A person who is guilty of an offence under subsection (6) is liable to a penalty not exceeding—

Note to s. 46 inserted by No. 11/2016 s. 40(3).

Section 187A applies to an offence against subsection (2), (4) or (6).

47 Regulations may require plan

The regulations may specify the circumstances in which a cultural heritage management plan is required for an activity or class of activity.

48 Minister may require plan

(1) The Minister may direct a person who proposes to carry out an activity to prepare a cultural heritage management plan before commencing the activity.

S. 48(2) repealed by No. 11/2016 s. 41.

(3) If the Minister gives a direction to a person under this section, the Minister must, within 14 days after giving the direction, give notice of the direction to the responsible authority for the land on which the proposed activity is to be carried out.

(4) In this section, responsible authority has the same meaning as in the Planning and Environment Act 1987.

49 Plan required if Environment Effects Statement required

(1) This section applies if a proponent or other person is required to prepare an Environment Effects Statement under the Environment Effects Act 1978 in respect of any works.

(2) The proponent or other person must, before commencing the works, also prepare a cultural heritage management plan for the area in which the works are to be carried out.

(3) In this section—

Environment Effects Statement and proponent have the same meanings as in the Environment Effects Act 1978;

works includes public works within the meaning of the Environment Effects Act 1978.

S. 49A inserted by No. 56/2009 s. 264(Sch. 2 item 1.3).

49A Plan required if impact management plan or comprehensive impact statement is required

(1) This section applies if a project proponent is required to prepare an impact management plan or comprehensive impact statement in relation to a declared project.

(2) The project proponent must not commence works until a cultural heritage management plan for the area in which the works are to be carried out has been approved.

(3) In this section, declared project, comprehensive impact statement, impact management plan, project proponent and works have the same meaning as in the Major Transport Projects Facilitation Act 2009.

Pt 4 Div. 2A (Heading and ss 49B, 49C) inserted by No. 11/2016 s. 42.

Division 2A—Preliminary Aboriginal heritage tests

S. 49B inserted by No. 11/2016 s. 42.

49B Application for certification of preliminary Aboriginal heritage test

(1) A person proposing an activity may prepare a preliminary Aboriginal heritage test for the purposes of determining whether the proposed activity requires the person to prepare a cultural heritage management plan.

(2) A person who prepares a preliminary Aboriginal heritage test may apply to the Secretary for certification of the test.

(3) An application under subsection (2) must be made in the prescribed form and be accompanied by the prescribed fee (if any).

S. 49C inserted by No. 11/2016 s. 42.

49C Certification of preliminary Aboriginal heritage test

(1) After receiving an application for the certification of a preliminary Aboriginal heritage test under section 49B, the Secretary must certify that the test is correct or refuse to certify the test.

(2) The Secretary must certify a preliminary Aboriginal heritage test or refuse to certify the test within 21 days of receiving the application.

(3) The Secretary may request the applicant to provide any additional information that the Secretary reasonably considers necessary to assist the Secretary's decision.

(4) A request under subsection (3) must be made in writing and include the following information—

(5) The period referred to in subsection (2)—

Division 3—Other authorisations suspended until plan prepared

50 Definitions

In this Division—

decision maker, in relation to statutory authorisation, means a person or body empowered under an Act or regulations to grant that authorisation;

S. 50 def. of earth resource authorisation amended by Nos 63/2006 s. 61(Sch. item 1.1), 6/2009 s. 42(1), 10/2010 s. 800(Sch. 6 item 1(a)), 11/2016 s. 43(1).

earth resource authorisation means any of the following—

(a) an approval given under section 40 of the Mineral Resources (Sustainable Development) Act 1990;

(b) an extractive industry work authority granted under section 77I of the Mineral Resources (Sustainable Development) Act 1990;

(c) a written consent given under section 138 of the Petroleum Act 1998;

(d) the acceptance under Division 3 of Part 9 of the Pipelines Act 2005 of an Environment Management Plan;

(e) a written consent given under section 193 of the Greenhouse Gas Geological Sequestration Act 2008;

(f) a written consent given under section 80 of the Geothermal Energy Resources Act 2005;

(g) the acceptance by the Minister under the regulations made under the Offshore Petroleum and Greenhouse Gas Storage Act 2010 of an environment plan;

S. 50 def. of earth resource law amended by Nos 63/2006 s. 61(Sch. item 1.2), 6/2009 s. 42(2), 10/2010 s. 800(Sch. 6 item 1(b)), 11/2016 s. 43(2).

earth resource law means any of the following—

(a) the Mineral Resources (Sustainable Development) Act 1990;

(c) the Petroleum Act 1998;

(d) the Pipelines Act 2005;

(e) the Greenhouse Gas Geological Sequestration Act 2008;

(f) the Geothermal Energy Resources Act 2005;

(g) the Offshore Petroleum and Greenhouse Gas Storage Act 2010 and any regulations made under that Act;

S. 50 def. of statutory authorisation amended by Nos 57/2009 s. 42, 55/2010 s. 89.

statutory authorisation means any of the following—

(a) a permit under the Planning and Environment Act 1987 to use or develop land for all or part of an activity;

(b) an amendment to a permit referred in paragraph (a) if the amendment allows a change to the use or development of the land for all or part of the activity;

(c) an earth resource authorisation other than an authorisation approving an area work plan within the meaning of section 41AD(4) of the Mineral Resources (Sustainable Development) Act 1990;

(d) an amendment to an earth resource authorisation (other than an amendment to an authorisation that approves a variation to an area work plan within the meaning of section 41AD(4) of the Mineral Resources (Sustainable Development) Act 1990) if the amendment allows a change to the activity authorised by that authorisation;

(e) an approval under any Act or regulations to develop land for all or part of an activity, other than an approval—

(i) under the Planning and Environment Act 1987; or

(ii) under an earth resource law; or

(iii) that is required for a purpose that relates to a purpose for which an earth resource authorisation is also required;

(f) the amendment to an approval included in this definition by paragraph (e) that allows a change to the development of the land for all or part of an activity.

51 Application of Division

This Division applies if a sponsor proposes to carry out an activity—

(a) for which a cultural heritage management plan is required under this Part; and

(b) for which the sponsor must also obtain a statutory authorisation before the sponsor can carry out the activity.

52 Plan must be prepared before authorisation given

(1) The decision maker must not grant a statutory authorisation for the activity unless a cultural heritage management plan is approved under this Part in respect of the activity.

This section does not prevent a sponsor from lodging an application for a statutory authorisation before a cultural heritage management plan is approved.

(2) The sponsor must give a copy of the approved cultural heritage management plan to the decision maker.

(3) The decision maker must not grant a statutory authorisation for the activity if the activity would be inconsistent with the approved cultural heritage management plan.

(4) If the decision maker is required to decide whether to grant the statutory authorisation within a certain period, that period is deemed not to commence until the decision maker receives a copy of the approved cultural heritage management plan.

(5) Subsection (4) does not affect any period for making a decision that is preliminary to the decision whether to grant the statutory authorisation.

S. 52(5A) inserted by No. 11/2016 s. 44.

(5A) This section applies to a proposed amendment to an approved cultural heritage management plan as if the proposed amendment were a new cultural heritage management plan.

(6) This section applies despite anything to the contrary in any other Act.

Division 4—Preparation of cultural heritage management plans

53 Cultural heritage management plan to be prepared in accordance with prescribed standards

(1) The sponsor of a cultural heritage management plan must ensure that the plan is prepared in accordance with the prescribed standards.

(2) The sponsor of a cultural heritage management plan must ensure that all activities undertaken during the assessment of an area for the purposes of a cultural heritage management plan comply with the regulations.

54 Notice of intention to prepare cultural heritage management plan

(1) The sponsor of a cultural heritage management plan must give written notice of the sponsor's intention to prepare the plan—

(a) to each relevant registered Aboriginal party; and

(b) to the Secretary (unless the Secretary is the sponsor); and

S. 54(1)(c) amended by No. 11/2016 s. 45(1).

(c) to the owner or occupier of any land within the area to which the plan relates; and

S. 54(1)(d) inserted by No. 11/2016 s. 45(2).

(d) to any municipal council whose municipal district includes an area to which the plan relates.

(2) The sponsor must give the notice referred to in subsection (1) before commencing the preparation of the plan.

(3) A notice under this section must—

(a) contain the name and contact details of the sponsor; and

(b) contain a description of the proposed activity to which the plan relates; and

(c) clearly identify the area in respect of which the plan is to be prepared; and

S. 54(3)(d) amended by No. 11/2016 s. 45(3).

(d) specify the dates within which the plan is proposed to be prepared; and

S. 54(3)(e) inserted by No. 11/2016 s. 45(4).

(e) be accompanied by the prescribed fee (if any).

S. 54(4) inserted by No. 11/2016 s. 45(5).

(4) If the proposed activity in the plan is to be carried out in an area for which there is no registered Aboriginal party, a notice under this section may include details of Aboriginal people or Aboriginal groups with whom the sponsor intends to consult.

55 Registered Aboriginal parties may elect to evaluate plan

(1) This section applies if a registered Aboriginal party receives notice under this Division of an intention to prepare a cultural heritage management plan.

(2) Within 14 days of receiving the notice, the registered Aboriginal party must give written notice to the sponsor specifying whether or not it intends to evaluate the plan.

S. 55(3) inserted by No. 11/2016 s. 46.

(3) If the sponsor of a cultural heritage management plan is a registered Aboriginal party, the party cannot evaluate the plan.

S. 55(4) inserted by No. 11/2016 s. 46.

(4) Despite subsection (3), any other registered Aboriginal party that receives notice of an intention to prepare a cultural heritage management plan may evaluate the plan.

56 Sponsor to notify Secretary of intention of registered Aboriginal party

(1) If the sponsor of a cultural heritage management plan gives notice to a registered Aboriginal party under section 54, the sponsor must notify the Secretary if the registered Aboriginal party—

(a) declines under section 55 to evaluate the plan; or

(b) fails to respond to the notice from the sponsor within 14 days after receiving the notice.

(2) This section does not apply if the sponsor is the Secretary.

57 Newly registered Aboriginal parties

(1) This section applies if a body becomes a registered Aboriginal party for the area to which a proposed cultural heritage management plan relates—

(a) after the date on which—

(i) the relevant sponsor gave notice to the Secretary under section 54; or

(ii) if the Secretary is the sponsor, the Secretary gave notice under section 54; and

S. 57(1)(b) substituted by No. 11/2016 s. 47.

(b) before the commencement of an assessment of the area for the purposes of the cultural heritage management plan.

(2) As soon as possible, the Secretary must give the sponsor the contact details of the registered Aboriginal party.

(3) Subsection (2) does not apply if the Secretary is the sponsor.

(4) Sections 54, 55 and 56 apply as if the registered Aboriginal party had been registered for the area to which the plan relates at the time—

(a) the sponsor gave notice to the Secretary under section 54; or

(b) if the Secretary is the sponsor, the Secretary gave notice under section 54.

S. 58 (Heading) amended by No. 11/2016 s. 48(1).

S. 58 amended by No. 11/2016 s. 48(2).

58 Engagement of heritage advisor

The sponsor of a cultural heritage management plan must engage a heritage advisor to assist in the preparation of the plan.

59 Obligations of sponsor and registered Aboriginal party

(1) This section applies if a registered Aboriginal party gives notice under section 55 of its intention to evaluate a cultural heritage management plan.

(2) The sponsor must make reasonable efforts to consult with the registered Aboriginal party before beginning the assessment and during the preparation of the plan.

(3) The registered Aboriginal party must use reasonable efforts to co-operate with the sponsor in the preparation of the plan.

60 Registered Aboriginal party may also advise

A registered Aboriginal party that gives notice under section 55 of its intention to evaluate a cultural heritage management plan may also do all or any of the following—

(a) consult with the sponsor in relation to the assessment of the area for the purposes of the plan;

S. 60(b) amended by No. 11/2016 s. 49.

(b) consult with the sponsor in relation to the conditions to be included in the plan;

(c) participate in the conduct of the assessment.

S. 60A inserted by No. 11/2016 s. 50.

60A Activity advisory groups

(1) The Secretary may appoint an activity advisory group for a proposed activity if—

(a) the Secretary receives a notice of intention to prepare a cultural heritage management plan under section 54; and

(b) the proposed activity in the plan is to be carried out in an area for which there is no registered Aboriginal party.

(2) If the Secretary appoints an activity advisory group under subsection (1), the Secretary must do so within 21 days of receiving a notice of intention to prepare a cultural heritage management plan.

(3) The Secretary must notify the sponsor of a cultural heritage management plan of the appointment of an activity advisory group for the proposed activity in the plan as soon as practicable after appointing the group.

(4) The function of an activity advisory group is to advise the Secretary on the proposed activity and its impact on Aboriginal cultural heritage.

(5) For the purposes of performing its function, an activity advisory group may do any of the following—

(a) consult with the sponsor and the heritage advisor in relation to the assessment of the area for the purposes of the plan;

(b) consult with the sponsor and the heritage advisor in relation to the conditions to be included in the plan;

(c) participate in the conduct of the assessment.

(6) The sponsor of a cultural heritage management plan and the heritage advisor must make reasonable efforts to consult with the activity advisory group before beginning the assessment and during the preparation of the plan.

(7) The Secretary may appoint representatives of any relevant traditional owners to an activity advisory group.

(8) A member of an activity advisory group is appointed on the terms and conditions (including remuneration and allowances) that are specified in the instrument of appointment.

Division 5—Approval of cultural heritage management plans

61 Matters to be considered in relation to a plan

The following matters are to be considered in assessing whether a cultural heritage management plan relating to an activity is to be approved—

(a) whether the activity will be conducted in a way that avoids harm to Aboriginal cultural heritage;

(b) if it does not appear to be possible to conduct the activity in a way that avoids harm to Aboriginal cultural heritage, whether the activity will be conducted in a way that minimises harm to Aboriginal cultural heritage;

(c) any specific measures required for the management of Aboriginal cultural heritage likely to be affected by the activity, both during and after the activity;

(d) any contingency plans required in relation to disputes, delays and other obstacles that may affect the conduct of the activity;

(e) requirements relating to the custody and management of Aboriginal cultural heritage during the course of the activity.

62 Application to registered Aboriginal party for approval

(1) This section applies if one or more registered Aboriginal parties have given notice under section 55 of their intention to evaluate a cultural heritage management plan.

(2) The sponsor must apply to each of those registered Aboriginal parties for approval of the plan.

(3) An application under subsection (2) must be accompanied by the relevant prescribed fee (if any).

S. 62(3A) inserted by No. 11/2016 s. 51.

(3A) An application under subsection (2) to more than one registered Aboriginal party is taken to be received by each of the parties on the date on which all of the parties have received the prescribed fee, or if there is no prescribed fee, the application.

(4) The sponsor and each registered Aboriginal party referred to in subsection (1) must make every reasonable effort to reach agreement on the matters set out in section 61.

63 Decision by registered Aboriginal party

(1) A registered Aboriginal party must, within 30 days after receiving an application under section 62—

(a) decide—

(i) to approve the plan; or

(ii) to refuse to approve the plan; and

(b) give written notice of the decision to the sponsor and each other registered Aboriginal party referred to in section 62.

S. 63(1A) inserted by No. 11/2016 s. 52(1).

(1A) A registered Aboriginal party may request the sponsor to provide any additional information that the party reasonably considers necessary to assist the party's decision.

S. 63(1B) inserted by No. 11/2016 s. 52(1).

(1B) A request under subsection (1A) must be made in writing and include the following information—

S. 63(1C) inserted by No. 11/2016 s. 52(1).

(1C) The period referred to in subsection (1)—

(a) ceases to run when the registered Aboriginal party requests the additional information; and

(b) recommences to run when the information is provided to the registered Aboriginal party.

(2) If a dispute in relation to the cultural heritage management plan is referred to the Chairperson of the Council under Subdivision 1 of Division 1 of Part 8, the period referred to in subsection (1) ceases to run until the Chairperson certifies in writing that the dispute has been resolved or that alternative dispute resolution has failed, or is unlikely, to resolve the dispute.

(3) A registered Aboriginal party must refuse to approve the plan if it has not been prepared in accordance with the standards prescribed for the purposes of section 53.

(4) A registered Aboriginal party may otherwise only refuse to approve the plan if the registered Aboriginal party is not satisfied that the plan adequately addresses the matters set out in section 61.

S. 63(5) inserted by No. 11/2016 s. 52(2).

(5) The sponsor may agree to accept the decision of a registered Aboriginal party to approve the plan or refuse the plan after the period referred to in subsection (1), but only if the sponsor has not already made an application to the Secretary under section 65(1)(b)(iv).

64 When does a plan approved by a registered Aboriginal party take effect?

(1) Subject to subsection (2), a cultural heritage management plan takes effect as an approved cultural heritage management plan when—

(a) it is approved by each registered Aboriginal party to which an application is required to be made under section 62; and

(b) the sponsor lodges the following with the Secretary—

(i) a copy of the plan; and

(ii) a copy of each notice of approval received by the sponsor under section 63(1)(b).

(2) If the approval of more than one registered Aboriginal party is required in relation to a cultural heritage management plan and one or more of those parties fails to comply with section 63(1) within the required time and each of the other registered Aboriginal parties has approved the plan, the plan takes effect as an approved cultural heritage management plan when the sponsor lodges the following with the Secretary—

(a) a copy of the plan; and

(b) a copy of each notice of approval received by the sponsor under section 63(1)(b).

65 Approval by Secretary

(1) A sponsor may apply to the Secretary for approval of a cultural heritage management plan if—

(a) the sponsor is not the Secretary; and

(b) one of the following applies—

(i) there is no relevant registered Aboriginal party in relation to the plan;

(ii) no relevant registered Aboriginal party has given notice to the sponsor under section 55 within the time required by that section;

(iii) all of the relevant registered Aboriginal parties have given the sponsor notice under section 55 that they do not wish to evaluate the plan;

(iv) no relevant registered Aboriginal party has given notice to the sponsor under section 63(1) within the time required by that section.

S. 65(1A) inserted by No. 11/2016 s. 53(1).

(1A) An application under this section must be accompanied by the prescribed fee (if any).

(2) Within 30 days after receiving the application, the Secretary must decide whether to approve the plan or to refuse to approve the plan.

S. 65(2A) inserted by No. 11/2016 s. 53(2).

(2A) The Secretary may request the sponsor to provide any additional information that the Secretary reasonably considers necessary to assist the Secretary's decision.

S. 65(2B) inserted by No. 11/2016 s. 53(2).

(2B) A request under subsection (2A) must be made in writing and include the following information—

S. 65(2C) inserted by No. 11/2016 s. 53(2).

(2C) The period referred to in subsection (2)—

S. 65(2D) inserted by No. 11/2016 s. 53(2), amended by No. 6/2023 s. 3(Sch. 1 item 1).

(2D) Subject to subsection (2E), the Secretary is taken to have refused to approve the plan if the Secretary fails to decide whether to approve the plan or to refuse to approve the plan within the period referred to in subsection (2).

S. 65(2E) inserted by No. 11/2016 s. 53(2), amended by No. 6/2023 s. 3(Sch. 1 item 1).

(2E) The Secretary may decide to approve the plan or to refuse the plan after the period referred to in subsection (2) with the agreement of the sponsor.

S. 65(3) substituted by No. 11/2016 s. 53(3).

(3) In considering the application, the Secretary must consult with, and consider the views of—

(a) any Aboriginal person or Aboriginal body that the Secretary considers relevant to the application; or

(b) any activity advisory group appointed by the Secretary under section 60A.

(4) The Secretary must refuse to approve the plan if it has not been prepared in accordance with the standards prescribed for the purposes of section 53.

(5) The Secretary may otherwise only refuse to approve the plan if the Secretary is not satisfied that the plan adequately addresses the matters set out in section 61.

(6) A cultural heritage management plan approved by the Secretary takes effect on that approval.

66 Approval by Council

(1) If the Secretary is the sponsor of a cultural heritage management plan, the Secretary may apply to the Council for approval of the plan if—

(a) there is no relevant registered Aboriginal party in relation to the plan; or

(b) no relevant registered Aboriginal party has given notice to the Secretary under section 55 within the time required by that section; or

(c) all of the relevant registered Aboriginal parties have given the Secretary notice under section 55 that they do not wish to evaluate the plan; or

(d) no relevant registered Aboriginal party has given notice to the Secretary under section 63(1) within the time required by that section.

S. 66(1A) inserted by No. 11/2016 s. 54(1).

(1A) An application under this section must be accompanied by the prescribed fee (if any).

S. 66(1B) inserted by No. 11/2016 s. 54(1).

(1B) If a registered Aboriginal party is the sponsor of a cultural heritage management plan, the party may apply to the Council for approval of the plan.

If a registered Aboriginal party is the sponsor of a cultural heritage management plan and there is more than one registered Aboriginal party for the area to which the plan relates, an application must also be made under section 62.

(2) Within 60 days after receiving the application, the Council must decide whether to approve or to refuse to approve the plan.

S. 66(2A) inserted by No. 11/2016 s. 54(2).

(2A) The Council may request the sponsor to provide any additional information that the Council reasonably considers necessary to assist the Council's decision.

S. 66(2B) inserted by No. 11/2016 s. 54(2).

(2B) A request under subsection (2A) must be made in writing and include the following information—

S. 66(2C) inserted by No. 11/2016 s. 54(2).

(2C) The period referred to in subsection (2)—

(a) ceases to run when the Council requests the additional information; and

(b) recommences to run when the information is provided to the Council.

(3) In considering the application, the Council must consult with, and consider the views of, any Aboriginal person or Aboriginal body that the Council considers relevant to the application.

(4) The Council must refuse to approve the plan if it has not been prepared in accordance with the standards prescribed for the purposes of section 53.

(5) The Council may otherwise only refuse to approve the plan if the Council is not satisfied that the plan adequately addresses the matters set out in section 61.

(6) A cultural heritage plan approved by the Council takes effect on that approval.

S. 66A inserted by No. 11/2016 s. 55.

66A Amendments to approved cultural heritage management plans

(1) Subject to this section, Division 4 and this Division apply to a proposed amendment to an approved cultural heritage management plan as if the proposed amendment were a cultural heritage management plan.

(2) A proposed amendment to an approved cultural heritage management plan that is, in the opinion of the relevant authority, a minor amendment to the plan, may be approved by the relevant authority within 14 days of receiving the proposed amendment.

(3) The relevant authority must give written notice of its decision to approve or refuse to approve a proposed amendment to an approved cultural heritage management plan to the sponsor, and any relevant registered Aboriginal party.

(4) An application to amend an approved cultural heritage management plan must be made in the prescribed form and accompanied by the prescribed fee (if any).

(5) An approved cultural heritage management plan cannot be amended 5 years or more after first being approved under this Division.

(6) In this section—

relevant authority, in relation to an application for a proposed amendment to an approved cultural heritage management plan, means—

(a) a relevant registered Aboriginal party; or

(b) if there is no relevant registered Aboriginal party—the Secretary; or

(c) if the applicant is a registered Aboriginal party or the Secretary—the Council.

Division 6—General

67 Sponsor must give assessment documentation to Secretary

(1) The sponsor of an approved cultural heritage management plan (other than the Secretary) must, within 14 days after the approval of the plan, give to the Secretary in the approved form (if any) all assessment documentation relating to Aboriginal cultural heritage prepared or obtained in the course of the conduct of the assessment for the plan.

(2) If the sponsor of a cultural heritage management plan (other than the Secretary) decides to discontinue the preparation of the plan, or the activity to which the plan relates, at any time before the plan or activity is completed, the sponsor must give the following to the Secretary within 14 days after deciding to discontinue the plan or activity—

(a) notice of the decision to discontinue;

(b) in the approved form (if any), all assessment documentation relating to Aboriginal cultural heritage prepared or obtained in the course of the preparation of the plan.

(3) In this section, assessment documentation includes site records, photographs, maps, plans and any prescribed documentation relating to the assessment for the cultural heritage management plan or the plan itself.

S. 67A inserted by No. 11/2016 s. 56.

67A Sponsor must comply with approved cultural heritage management plan

(1) The sponsor of an approved cultural heritage management plan is guilty of an offence if—

(a) the sponsor by an act or omission fails to comply with the conditions of the approved cultural heritage management plan; and

(b) at the time of the act or omission the sponsor knew that the act or omission failed to comply with the conditions of the plan.

(2) A sponsor of an approved cultural heritage management plan who is guilty of an offence under subsection (1) is liable to a penalty not exceeding—

(3) The sponsor of an approved cultural heritage management plan is guilty of an offence if—

(a) the sponsor by an act or omission fails to comply with the conditions of the approved cultural heritage management plan; and

(b) at the time of the act or omission the sponsor was reckless as to whether the act or omission failed to comply with the conditions of the plan.

(4) A sponsor of an approved cultural heritage management plan who is guilty of an offence under subsection (3) is liable to a penalty not exceeding—

(5) The sponsor of an approved cultural heritage management plan is guilty of an offence if—

(a) the sponsor by an act or omission fails to comply with the conditions of the approved cultural heritage management plan; and

(b) at the time of the act or omission the sponsor was negligent as to whether the act or omission failed to comply with the conditions of the plan.

(6) A sponsor of an approved cultural heritage management plan who is guilty of an offence under subsection (5) is liable to a penalty not exceeding—

Part 5—Cultural heritage agreements

Division 1—Making and amendment of agreements

68 What is a cultural heritage agreement?

(1) For the purposes of this Act, a cultural heritage agreement is an agreement between 2 or more persons relating to the management or protection of Aboriginal cultural heritage.

(2) Without limiting the matters that may be dealt with by a cultural heritage agreement, a cultural heritage agreement may deal with any of the following—

(a) the protection, maintenance or use of land containing an Aboriginal place;

(b) the protection, maintenance or use of Aboriginal objects;

(c) rights of access to, or use of, Aboriginal places or objects by Aboriginal people;

S. 68(2)(d) amended by No. 11/2016 s. 57.

(d) the restoration and preservation of Aboriginal places or objects.

(3) Despite subsections (1) and (2), a cultural heritage agreement may not deal with any activity for which a cultural heritage permit or a cultural heritage management plan is required under this Act.

(4) A cultural heritage agreement has effect as an agreement under seal.

69 Parties to a cultural heritage agreement

(1) Any person may be a party to a cultural heritage agreement, including—

(a) the Secretary; and

(b) if the agreement relates to Crown land, any person responsible for the management of that land; and

(c) if the agreement relates to other land, the owner of that land.

(2) At least one of the parties to a cultural heritage agreement must be a registered Aboriginal party.

70 Form of cultural heritage agreement

(1) A cultural heritage agreement must be in the approved form.

(2) A cultural heritage agreement may provide for the person who owns or possesses the Aboriginal cultural heritage the subject of the agreement to be bound by the covenants specified in the agreement.

(3) If a cultural heritage agreement relates to an Aboriginal place, the agreement must include a map, plan or description of the boundaries of the land affected by the agreement.

(4) A map included in a cultural heritage agreement under subsection (3) must comply with the prescribed standards (if any).

71 Amendment of cultural heritage agreement

A cultural heritage agreement may be amended by agreement between the parties (an amending agreement).

72 Agreement of no effect without consent of registered Aboriginal parties

(1) A cultural heritage agreement or amending agreement that relates to an Aboriginal place does not take effect until each registered Aboriginal party for the area in which the Aboriginal place is located consents in writing to the making of the agreement or amending agreement.

(2) A cultural heritage agreement or an amending agreement that relates to an Aboriginal object does not take effect until each registered Aboriginal party for the area from which the Aboriginal object is reasonably believed to have originated consents in writing to the making of the agreement or amending agreement.

73 When does a cultural heritage agreement begin?

Subject to section 72, a cultural heritage agreement may provide that it comes into effect—

74 When does a cultural heritage agreement end?

A cultural heritage agreement may provide that it ends wholly or in part or as to any part of any land—

Pt 5 Div. 1A (Heading and ss 74A–74J) inserted by No. 11/2016 s. 58.

Division 1A—Aboriginal cultural heritage land management agreements

S. 74A inserted by No. 11/2016 s. 58.

74A What is an Aboriginal cultural heritage land management agreement?

(1) A public land manager may enter into an Aboriginal cultural heritage land management agreement with a registered Aboriginal party for the purposes of managing or protecting Aboriginal cultural heritage in a specified area in the conduct of land management activities.

(2) An Aboriginal cultural heritage land management agreement must not deal with any activity for which a cultural heritage management plan is required under this Act.

S. 74B inserted by No. 11/2016 s. 58.

74B Aboriginal cultural heritage land management agreement to be prepared in accordance with prescribed standards

Each party to an Aboriginal cultural heritage land management agreement must ensure that the agreement is prepared in accordance with the prescribed standards.

S. 74C inserted by No. 11/2016 s. 58.

74C Conditions of Aboriginal cultural heritage land management agreement

An Aboriginal cultural heritage land management agreement must include the prescribed conditions (if any).

S. 74D inserted by No. 11/2016 s. 58.

74D Notice of intention to enter into an Aboriginal cultural heritage land management agreement

(1) Before entering into an Aboriginal cultural heritage land management agreement, the registered Aboriginal party that is a party to the proposed agreement must give written notice to the Secretary of the party's intention to enter into the agreement.

(2) A notice under subsection (1) must include the following—

(a) the date by which the agreement is to be prepared;

(b) the parties to the agreement;

(c) any assessment to be undertaken as part of the agreement's preparation, including an assessment of an area to determine the nature of any Aboriginal cultural heritage in the area.

S. 74E inserted by No. 11/2016 s. 58.

74E Copy of Aboriginal cultural heritage land management agreement must be given to Secretary

(1) A public land manager that has entered into an Aboriginal cultural heritage land management agreement must, within 14 days of entering into the agreement, give a copy of the relevant documentation to the Secretary.

(2) In this section—

relevant documentation means any site records, photographs, maps and plans relating to an Aboriginal cultural heritage land management agreement and a copy of the agreement.

S. 74F inserted by No. 11/2016 s. 58.

74F Amendments to Aboriginal cultural heritage land management agreements

Sections 74D and 74E apply to a proposed amendment to an Aboriginal cultural heritage land management agreement as if the proposed amendment were a notice of intention to enter into an Aboriginal cultural heritage land management agreement.

S. 74G inserted by No. 11/2016 s. 58.

74G Offence to fail to comply with Aboriginal cultural heritage land management agreement

(1) A party to an Aboriginal cultural heritage land management agreement is guilty of an offence if—

(a) the party by an act or omission fails to comply with the conditions of the Aboriginal cultural heritage land management agreement; and

(b) at the time of the act or omission the party knew that the act or omission failed to comply with the conditions of the agreement.

(2) A party to an Aboriginal cultural heritage land management agreement who is guilty of an offence under subsection (1) is liable to a penalty not exceeding—

(3) A party to an Aboriginal cultural heritage land management agreement is guilty of an offence if—

(a) the party by an act or omission fails to comply with the conditions of the Aboriginal cultural heritage land management agreement; and

(b) at the time of the act or omission the party was reckless as to whether the act or omission failed to comply with the conditions of the agreement.

(4) A party to an Aboriginal cultural heritage land management agreement who is guilty of an offence under subsection (3) is liable to a penalty not exceeding—

(5) A party to an Aboriginal cultural heritage land management agreement is guilty of an offence if—

(a) the party by an act or omission fails to comply with the conditions of the Aboriginal cultural heritage land management agreement; and

(b) at the time of the act or omission the party was negligent as to whether the act or omission failed to comply with the conditions of the agreement.

(6) A party to an Aboriginal cultural heritage land management agreement who is guilty of an offence under subsection (5) is liable to a penalty not exceeding—

S. 74H inserted by No. 11/2016 s. 58.

74H Application of Aboriginal cultural heritage land management agreement if registration of registered Aboriginal party revoked or suspended

(1) An Aboriginal cultural heritage land management agreement is terminated if the registration of a registered Aboriginal party that is a party to the agreement is revoked under Division 2 of Part 10.

(2) If the registration of a registered Aboriginal party that is a party to an Aboriginal cultural heritage land management agreement is suspended, the registered Aboriginal party is taken not to be a party to the agreement during the period of suspension.

S. 74I inserted by No. 11/2016 s. 58.

74I When does an Aboriginal cultural heritage land management agreement begin?

An Aboriginal cultural heritage land management agreement may provide that it comes into effect—

S. 74J inserted by No. 11/2016 s. 58.

74J When does an Aboriginal cultural heritage land management agreement end?

An Aboriginal cultural heritage land management agreement may provide that it ends wholly or in part or as to any part of any land—

Division 2—Lodgement and registration of agreements

75 Cultural heritage agreements to be lodged with Secretary

(1) The relevant registered Aboriginal party must lodge a copy of a cultural heritage agreement with the Secretary without delay after the agreement is made.

(2) The relevant registered Aboriginal party must notify the Secretary in writing without delay of any amendment to or ending of a cultural heritage agreement.

(3) This section does not apply in relation to a cultural heritage agreement to which the Secretary is a party.

76 Registration of cultural heritage agreements

(1) This section applies if a cultural heritage agreement relating to land contains a provision requiring its registration under this section.

(2) The Secretary must apply to the Registrar of Titles for the registration of any cultural heritage agreement that relates to an activity on land other than Crown land and to which the owner of the land is a party.

(3) An application under this section must be in a form approved by the Registrar of Titles and include a copy of the cultural heritage agreement to which it relates.

(4) The Registrar of Titles must make a recording of the cultural heritage agreement in the Register kept under the Transfer of Land Act 1958.

77 Effect of registration

After the making of a recording in the Register kept under the Transfer of Land Act 1958—

(a) the burden of any covenant in the cultural heritage agreement runs with the land affected; and

(b) the Secretary or the relevant registered Aboriginal party may enforce the covenant against any person deriving title from any person who entered into the covenant as if it were a restrictive covenant despite the fact that it may be positive in nature or that it is not for the benefit of any land of the Secretary or the relevant registered Aboriginal party.

78 Governor in Council may release covenant

(1) If the owner of any land who is bound by a covenant in a cultural heritage agreement is unable to reach agreement with the Secretary or the relevant registered Aboriginal party for the release of the covenant, the Governor in Council may determine the matter.

(2) The Secretary, the relevant registered Aboriginal party or the owner (as the case requires) must give effect to a determination under subsection (1) of the Governor in Council.

79 Cancellation or amendment of registration

(1) This section applies to a cultural heritage agreement that is recorded in the Register kept under the Transfer of Land Act 1958.

(2) The Secretary must advise the Registrar of Titles without delay of—

(a) the ending of the agreement relating wholly or in part or as to any part of the land; or

(b) an amendment to the agreement.

(3) The Registrar of Titles must, as appropriate, cancel in whole or in part or alter the recording of the cultural heritage agreement in the Register kept under the Transfer of Land Act 1958.

Pt 5A (Heading and ss 79A–79L) inserted by No. 11/2016 s. 59.

Part 5A—Aboriginal intangible heritage

S. 79A inserted by No. 11/2016 s. 59.

79A Application of Part

Nothing in this Part applies to anything done by an Aboriginal person in accordance with Aboriginal tradition.

S. 79B inserted by No. 11/2016 s. 59.

79B What is Aboriginal intangible heritage?

(1) For the purposes of this Act, Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.

(2) Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).

S. 79C inserted by No. 11/2016 s. 59.

79C Registration of Aboriginal intangible heritage

(1) A registered Aboriginal party, registered native title holder or a traditional owner group entity may apply to the Secretary for details of any Aboriginal intangible heritage to be recorded on the Register.

(2) An application under subsection (1) must be made in the prescribed form and include details of any consultation undertaken by the applicant with any relevant traditional owners.

(3) The Secretary must decide to approve or refuse to approve an application within 90 days of receiving the application.

(4) In considering the application, the Secretary must consult with, and consider the views of, the applicant and any Aboriginal person or Aboriginal body that the Secretary considers relevant to the application.

(5) The Secretary may request the applicant to provide any additional information that the Secretary reasonably considers necessary to assist the Secretary's decision.

(6) A request under subsection (5) must be made in writing and include the following information—

(7) The period referred to in subsection (3)—

S. 79D inserted by No. 11/2016 s. 59.

79D Aboriginal intangible heritage agreements

(1) For the purposes of this Act, an Aboriginal intangible heritage agreement is an agreement relating to registered Aboriginal intangible heritage made between any person or body and—

(a) a registered Aboriginal party; or

(b) a registered native title holder; or

(c) a traditional owner group entity.

(2) An Aboriginal intangible heritage agreement may deal with any of the following—

(a) the management, protection or conservation of Aboriginal intangible heritage;

(b) the research or publication of Aboriginal intangible heritage;

(c) the development or commercial use of Aboriginal intangible heritage;

(d) the rights of traditional owners to use and commercially exploit Aboriginal intangible heritage, including anything produced from the research and development of Aboriginal intangible heritage;

(e) the compensation to be paid to traditional owners for the research, development and commercial use of Aboriginal intangible heritage.

(3) An Aboriginal intangible heritage agreement cannot deal with any activity for which a cultural heritage permit or cultural heritage management plan is required under this Act.

(4) An Aboriginal intangible heritage agreement has effect as an agreement under seal.

S. 79E inserted by No. 11/2016 s. 59.

79E Form of Aboriginal intangible heritage agreement

An Aboriginal intangible heritage agreement must be in the prescribed form and include the following information—

(a) the parties to the Aboriginal intangible heritage agreement and the period for which the agreement applies;

(b) a description of the Aboriginal intangible heritage to which the agreement relates;

(c) any other information the registered Aboriginal party, registered native title holder or traditional owner group entity reasonably considers necessary.

S. 79F inserted by No. 11/2016 s. 59.

79F Registration of Aboriginal intangible heritage agreements

(1) After entering into an Aboriginal intangible heritage agreement, the parties to the agreement must, without delay, give a copy of the agreement to the Secretary for recording on the Register

(2) The parties to an Aboriginal intangible heritage agreement must, without delay, notify the Secretary in writing of any amendment to or termination of the agreement.

S. 79G inserted by No. 11/2016 s. 59.

79G Offence to use registered Aboriginal intangible heritage for commercial purposes

(1) A person must not knowingly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.

Penalty: In the case of a natural person, 1800 penalty units;

In the case of a body corporate, 10 000 penalty units.

(2) A person must not recklessly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.

Penalty: In the case of a natural person, 1200 penalty units;

In the case of a body corporate, 6000 penalty units.

(3) This section does not apply to any Aboriginal intangible heritage that is the subject of a registered Aboriginal intangible heritage agreement.

Section 187A applies to an offence against subsection (1) or (2).

S. 79H inserted by No. 11/2016 s. 59.

79H Offence to fail to comply with a registered Aboriginal intangible heritage agreement

(1) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if—

(b) at the time of doing the act the party knew that the act failed to comply with the conditions of the agreement.

(2) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (1) is liable to a penalty not exceeding—

(a) in the case of a natural person, 600 penalty units;

(b) in the case of a body corporate, 3000 penalty units.

(3) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if—

(b) at the time of doing the act the party was reckless as to whether the act failed to comply with the conditions of the agreement.

(4) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (3) is liable to a penalty not exceeding—

(5) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if—

(b) at the time of doing the act the party was negligent as to whether the act failed to comply with the conditions of the agreement.

(6) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (5) is liable to a penalty not exceeding—

S. 79I inserted by No. 11/2016 s. 59.

79I Application of Aboriginal intangible heritage agreement if registration of certain parties revoked or suspended

(1) An Aboriginal intangible heritage agreement is terminated if a party to the agreement is a registered Aboriginal party, registered native title holder or traditional owner group entity, and the registration of that registered Aboriginal party is revoked under Division 2 of Part 10, or that registered native title holder or traditional owner group entity ceases to be a body corporate.

(2) If the registration of a registered Aboriginal party that is a party to an Aboriginal cultural heritage land management agreement is suspended, the registered Aboriginal party is taken not to be a party to the agreement during the period of suspension.

S. 79J inserted by No. 11/2016 s. 59.

79J When does an Aboriginal intangible agreement begin?

An Aboriginal intangible heritage agreement may provide that it comes into effect—

S. 79K inserted by No. 11/2016 s. 59.

79K When does an Aboriginal intangible heritage agreement end?

An Aboriginal intangible heritage agreement may provide that it ends wholly or in part—

S. 79L inserted by No. 11/2016 s. 59.

79L Evidentiary provision regarding Aboriginal intangible heritage

In any proceedings under this Act, the recording of details of Aboriginal intangible heritage in the Register, or the recording of details of an Aboriginal intangible heritage agreement in the Register, is evidence of the existence of that Aboriginal intangible heritage.

Pt 6 (Heading) substituted by No. 11/2016 s. 60.

Part 6—Cultural heritage audits, stop orders and improvement notices

Division 1—Cultural heritage audits

80 What is a cultural heritage audit?

For the purposes of this Act, a cultural heritage audit is an assessment of the impact of an activity on Aboriginal cultural heritage.

81 When can a cultural heritage audit be ordered?

S. 81(1) amended by No. 11/2016 s. 61(1).

(1) The Minister may order a cultural heritage audit to be carried out if, on the advice of the Secretary, the Council or an authorisedofficer, the Minister reasonably believes that—

S. 81(1)(a) amended by No. 11/2016 s. 61(2).

(a) the sponsor of an approved cultural heritage management plan has contravened, or is likely to contravene, the conditions in the plan; or

(b) the holder of a cultural heritage permit has contravened, or is likely to contravene a condition of the permit; or

(c) the impact on Aboriginal cultural heritage of an activity to which an approved cultural heritage management plan or a cultural heritage permit applies will be greater than that determined at the time the plan was approved or the permit was granted.

(2) The Minister must give notice of a decision to order a cultural heritage audit—

(a) if the audit relates to an approved cultural heritage management plan, to the sponsor of the plan and each registered Aboriginal party that evaluated the plan; or

(b) if the audit relates to a cultural heritage permit, to the holder of the permit and each relevant registered Aboriginal party.

82 Requirement of cultural heritage audit

In ordering a cultural heritage audit under section 81, the Minister must specify—

(a) the matters to be addressed by the audit; and

(b) the period within which the audit is to be completed.

83 Conduct of cultural heritage audit

S. 83(1) amended by No. 11/2016 s. 62(1).

(1) A cultural heritage audit must be conducted by or under the direction of an authorisedofficer.

S. 83(2) amended by No. 11/2016 s. 62(2).

(2) The Secretary may direct the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit to which a cultural heritage audit relates to engage a heritage advisor to conduct the audit.

S. 83(3) amended by No. 11/2016 s. 62(3).

(3) If the Secretary directs a sponsor or the holder of a cultural heritage permit to engage a heritage advisor to conduct a cultural heritage audit, the sponsor must comply with the direction.

Note to s. 83(3) inserted by No. 11/2016 s. 62(4).

S. 83(4) amended by No. 11/2016 s. 62(5)(a).

(4) A person engaged as a heritage advisor to conduct a cultural heritage audit must comply with—

S. 83(4)(a) amended by No. 11/2016 s. 62(5)(b).

(a) a direction of an authorised officer requiring the person to give the authorised officer a written report of the findings of the audit; and

S. 83(4)(b) amended by No. 11/2016 s. 62(5)(c).

(b) any other reasonable direction of the authorised officer.

S. 83(5) substituted by No. 11/2016 s. 62(6).

(5) If the Secretary directs the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit to engage a heritage advisor to conduct a cultural heritage audit, the sponsor or holder must pay the fees and reasonable expenses of the heritage advisor in conducting the audit.

S. 83(6) inserted by No. 11/2016 s. 62(6).

(6) The Secretary must reimburse any fees or expenses incurred by the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit under subsection (5) if the cultural heritage audit finds that the sponsor or holder has not contravened the plan or permit.

84 Report of cultural heritage audit

S. 84(1) amended by No. 11/2016 s. 63(1).

(1) An authorisedofficer who conducts, or directs the conduct of, a cultural heritage audit must give a written report of the findings of the audit to the Minister.

(2) The report may—

(a) identify any apparent contravention of an approved cultural heritage management plan or cultural heritage permit;

S. 84(2)(b) amended by No. 11/2016 s. 63(2).

(b) recommend amendments to the conditions of the approved cultural heritage management plan or the conditions of the cultural heritage permit applying to the activity to which the audit relates;

S. 84(2)(c) amended by No. 11/2016 s. 63(3).

(c) recommend arrangements for the access of authorisedofficers to the location at which the activity is being carried out;

(d) recommend other measures in relation to the conduct of the activity to avoid or minimise harm to Aboriginal cultural heritage.

85 Approval of report of audit

(1) The Minister may approve the report of a cultural heritage audit.

(2) The Minister must not approve the report of a cultural heritage audit on an approved cultural heritage management plan unless the Minister is satisfied that the recommendations included in the report are consistent with the standards prescribed for the purposes of section 53.

86 Notification and effect of approval

(1) This section applies if the Minister approves the report of a cultural heritage audit.

(2) The Minister must give notice of the approval—

(a) to any registered Aboriginal party for the area in which the activity to which the audit relates is being carried out; and

(b) if the audit relates to an approved cultural heritage management plan, to the sponsor of the plan; and

(c) if the audit relates to a cultural heritage permit, to the holder of the permit.

S. 86(3) amended by No. 11/2016 s. 64.

(3) If the audit relates to an approved cultural heritage management plan and the report of the audit recommends amendments to the conditions of the plan—

(a) the Minister may amend the plan in accordance with the recommendations; and

(b) the plan, as amended, becomes the approved cultural heritage management plan for the purposes of this Act.

(4) If the audit relates to a cultural heritage permit and the report of the audit recommends amendments to the conditions of the permit—

(a) the Secretary must amend the conditions of the permit in accordance with the recommendations; and

(b) the permit, as amended, becomes the cultural heritage permit for the purposes of this Act.

Division 2—Stop orders

87 When can a stop order be issued?

S. 87(1) substituted by No. 11/2016 s. 65.

(1) Subject to section 95A, the Minister or an authorised officer may issue a stop order to a person if—

(a) the person is carrying out, or proposes to carry out, any act; and

(b) the Minister or authorised officer is satisfied that there are reasonable grounds for believing that the carrying out of the act is harming, or is likely to harm, Aboriginal cultural heritage; and

(c) the Minister or authorised officer is satisfied that there are reasonable grounds for believing that the Aboriginal cultural heritage could not be properly protected unless a stop order is issued.

S. 87(1A) inserted by No. 11/2016 s. 65.

(1A) The Minister or an authorised officer must not issue a stop order to a person in relation to an act that is being carried out or is proposed to be carried out in accordance with any of the following—

(a) a cultural heritage permit; or

(b) an approved cultural heritage management plan; or

(c) an Aboriginal cultural heritage land management agreement.

(2) A stop order must be in the approved form.

88 Stop order required for cultural heritage audit

If the Minister orders a cultural heritage audit, the Minister must issue a stop order to the person carrying out the activity to which the audit relates requiring the person to stop the activity immediately.

89 What can a stop order do?

(1) A stop order issued to a person may—

S. 89(1)(a) amended by No. 11/2016 s. 66(1).

(a) require the person to stop immediately the act specified in the order; or

S. 89(1)(b) amended by No. 11/2016 s. 66(2).

(b) prohibit the person from doing the act specified in the order.

(2) Nothing in a stop order prevents action being taken to give effect to recommendations in the report of a cultural heritage audit conducted while the stop order is in force.

90 How is a stop order delivered?

(1) A stop order must be delivered to the person to whom it applies—

(a) in person; or

S. 90(1)(b) amended by No. 11/2016 s. 67(1).

(b) if it is not reasonably practicable to deliver it in person, by affixing it to a prominent position at the place where the act is being carried out or is to be carried out; or

S. 90(1)(c) amended by No. 11/2016 s. 67(2).

(c) if the person is a body corporate, by giving it to the person apparently supervising or in charge of the act to which the stop order relates.

S. 90(2) amended by No. 11/2016 s. 67(3).

(2) The Minister (or a person authorised by the Minister) or an authorisedofficer may enter any land or premises at any time for the purpose of delivering a stop order in accordance with this section.

91 How long does a stop order operate?

(1) Subject to subsection (2), unless it is sooner revoked, a stop order operates from the time it is issued until the end of the earlier of—

(a) 30 days; or

(b) the period specified in the order.

(2) A stop order issued in relation to a cultural heritage audit operates until the Minister revokes the order under section 93.

92 Extension of stop order

Before a stop order ceases to operate, the Minister may extend the stop order once only for a further period of up to 14 days.

93 Revocation of stop order

(1) A stop order may be revoked—

(a) if issued by the Minister—by the Minister; or

S. 93(1)(b) amended by No. 11/2016 s. 68.

(b) if issued by an authorised officer—by the Minister or the authorised officer.

(2) The Minister must revoke a stop order issued in relation to a cultural heritage audit after the report of the audit is approved under section 85.

S. 94 amended by No. 11/2016 s. 69.

94 Further stop order

If a stop order has been issued in respect of an act, the Minister or an authorised officer may only issue a further stop order to a person in respect of that act if the circumstances relating to that act have substantially changed.

95 Offence to fail to comply with stop order

(1) A person issued with a stop order must not engage in any conduct that the person knows is conduct that contravenes the stop order.

1. In the case of a natural person, 1800 penalty units;

In the case of a body corporate, 10 000 penalty units.

Note to s. 95(1) inserted by No. 11/2016 s. 134(1).

The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

Pt 6 Div. 3 (Heading and ss 95A–95C) inserted by No. 11/2016 s. 70.

Division 3—24-hour stop orders

S. 95A inserted by No. 11/2016 s. 70.

95A 24-hour stop orders

(1) An authorised officer or an Aboriginal heritage officer may issue a 24-hour stop order to a person if—

(a) the person is carrying out, or proposes to carry out, an act; and

(b) the authorised officer or Aboriginal heritage officer is satisfied that there are reasonable grounds for believing that the carrying out of the act is harming, or is likely to harm, Aboriginal cultural heritage; and

(c) the authorised officer or Aboriginal heritage officer is satisfied that there are reasonable grounds for believing that the Aboriginal cultural heritage could not be properly protected unless a 24-hour stop order is issued.

(2) An authorised officer or an Aboriginal heritage officer must not issue a 24-hour stop order to a person in relation to an act that is being carried out or is proposed to be carried out in accordance with any of the following—

(a) a cultural heritage permit; or

(b) an approved cultural heritage management plan; or

(c) an Aboriginal cultural heritage land management agreement.

(3) A 24-hour stop order must be in the approved form.

(4) A 24-hour stop order issued to a person may—

(a) require the person to stop immediately the act specified in the order; or

(b) prohibit the person from doing the act specified in the order.

(5) A 24-hour stop order must be delivered to the person to whom it applies—

(a) in person; or

(b) if it is not reasonably practicable to deliver it in person, by affixing it to a prominent position at the place where the act is being carried out or is to be carried out; or

(c) if the person is a body corporate, by giving it to the person apparently supervising or in charge of the act to which the order relates.

(6) An authorised officer or an Aboriginal heritage officer may enter any land or premises at any time for the purpose of delivering a 24-hour stop order in accordance with this section.

(7) A 24-hour stop order operates from the time it is issued for a period of 24 hours.

(8) An authorised officer or an Aboriginal heritage officer must not issue consecutive 24-hour stop orders to a person in relation to the same act.

S. 95B inserted by No. 11/2016 s. 70.

95B Cancellation of 24-hour stop order

(1) An authorised officer or an Aboriginal heritage officer who issues a 24-hour stop order may cancel the 24-hour stop order.

(2) Notice of cancellation of a 24-hour stop order must be served on the person affected.

(3) A 24-hour stop order that has been issued to a person by an authorised officer or an Aboriginal heritage officer and that is in operation is cancelled if the Minister or an authorised officer issues a stop order to the person under section 87 in relation to the same act.

S. 95C inserted by No. 11/2016 s. 70.

95C Offence to fail to comply with 24-hour stop order

(1) A person issued with a 24-hour stop order must not engage in any conduct that the person knows is conduct that contravenes the stop order.

Penalty: In the case of a natural person,

10 000 penalty units.

The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

Pt 6 Div. 4 (Heading and ss 95D–95H) inserted by No. 11/2016 s. 71.

Division 4—Improvement notices

S. 95D inserted by No. 11/2016 s. 71.

95D Improvement notices

(1) This Division applies if an authorised officer or an Aboriginal heritage officer believes on reasonable grounds that the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit has contravened this Act and that the contravention is likely to be repeated.

(2) The authorised officer or the Aboriginal heritage officer may serve on the sponsor or holder an improvement notice requiring the sponsor or holder to remedy the contravention or likely contravention, or the matters or acts causing the contravention or likely contravention.

(3) An improvement notice must—

(a) state the basis for the authorised officer's or Aboriginal heritage officer's service of the notice; and

(b) specify the provision of the Act in respect of which that belief is held; and

(c) specify a date within which the sponsor or holder is required to remedy the contravention or likely contravention or the matters or acts causing the contravention or likely contravention; and

(d) set out the penalty for contravening the notice.

(4) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention or the matters or acts causing the contravention or likely contravention to which the notice relates.

S. 95E inserted by No. 11/2016 s. 71.

95E Proceedings for offences not affected by improvement notices

The service of an improvement notice does not affect any proceedings for an offence against this Act in connection with any matter in respect of which the improvement notice was served.

S. 95F inserted by No. 11/2016 s. 71.

95F Offence to fail to comply with improvement notice

(1) The sponsor of a cultural heritage management plan or the holder of a cultural heritage permit issued with an improvement notice must not engage in any conduct that the sponsor or holder knows is conduct that contravenes the improvement notice.

Penalty: In the case of a natural person,
500 penalty units;

2500 penalty units.

The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

S. 95G inserted by No. 11/2016 s. 71.

95G Amendment of improvement notices

(1) An authorised officer or an Aboriginal heritage officer who serves an improvement notice on the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit may amend the improvement notice by serving on the sponsor or holder a notice setting out the terms of the amendment.

(2) A notice of an amendment of an improvement notice must—

(a) state the name of the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit or holder on whom the notice is served; and

(b) state the reasons for the amendment; and

(c) state that it is served under this section.

S. 95H inserted by No. 11/2016 s. 71.

95H Cancellation of improvement notices

(1) An authorised officer or an Aboriginal heritage officer who serves an improvement notice on the sponsor of a cultural heritage management plan or the holder of a cultural heritage permit may cancel the improvement notice.

(2) Notice of cancellation of an improvement notice must be served on the sponsor or holder affected.

Part 7—Protection declarations

Division 1—Interim protection declarations

96 Interim protection declarations

(1) The Minister may make an interim protection declaration in relation to a place or object if the Minister is satisfied that—

(a) the place or object is an Aboriginal place or object; and

(b) it is appropriate, having regard to the importance of maintaining the relationship between Aboriginal people and the place or object, that an interim protection declaration be made in relation to the place or object.

(2) An interim protection declaration may be made—

97 What must an interim protection declaration provide for?

An interim protection declaration must—

(b) clearly identify the Aboriginal place or object to which it relates; and

(c) specify the measures to be taken for the protection of the Aboriginal place or object; and

(d) if appropriate, specify the person responsible for taking the measures specified under paragraph (c); and

(e) contain the prescribed information (if any).

Example

An interim protection declaration could specify measures that restrict or prohibit access to, or interference with, an Aboriginal place or object.

98 Period of interim protection declaration

(1) Subject to subsection (2), an interim protection declaration operates from the time it is made until the end of the earlier of—

(a) 3 months after the day on which it is made; or

(b) the period specified in the declaration.

(2) Before an interim protection declaration ceases to operate, the Minister may extend the declaration once only for a further period of up to 3 months on his or her own initiative, or at the request of the Council or a registered Aboriginal party for the area to which the Aboriginal place or object the subject of the declaration relates.

99 Amendment or revocation of interim protection declaration

The Minister may, at any time, amend or revoke an interim protection declaration—

100 Minister to consult

Before making, amending, extending or revoking an interim protection declaration, the Minister must—

(a) consult with the Council about the proposal; and

(b) give any person who the Minister reasonably considers is likely to be affected by the proposal 14 days' written notice of the proposal; and

(c) give each person to whom notice is given under paragraph (b) the opportunity to be heard with respect to the proposal.

101 Publication of declaration

(1) The Minister must publish in the Government Gazette and in a newspaper circulating generally in the area to which an interim protection declaration relates—

(a) the interim protection declaration; or

(b) an amendment to the interim protection declaration; or

(c) notice of the extension or revocation of the interim protection declaration.

(2) A declaration, amendment, extension or revocation does not take effect until the declaration or amendment or the notice of extension or revocation is published in the Government Gazette.

102 Offence to contravene interim protection declaration

(a) the person engages in conduct that contravenes an interim protection declaration; and

(b) at the time of engaging in the conduct, the person knew of the existence of the declaration.

(a) the person engages in conduct that contravenes an interim protection declaration; and

(b) at the time of engaging in the conduct, the person was reckless as to the existence of the declaration.

(5) In this section, engage in conduct means—

(a) to do an act; or

(b) omit to do an act.

(6) An offence under this section is an indictable offence.

The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

(7) A person who engages in conduct that contravenes an interim protection declaration does not commit an offence under this section if the conduct in which the person engaged was necessary because of an emergency.

Note to s. 102 inserted by No. 11/2016 s. 134(2).

Section 187A applies to an offence against subsection (1) or (3).

Division 2—Ongoing protection declarations

103 Ongoing protection declarations

(1) The Minister may make an ongoing protection declaration in relation to a place or object if the Minister is satisfied that—

(a) the place or object is an Aboriginal place or object; and

(b) it is appropriate, having regard to the importance of maintaining the relationship between Aboriginal people and the place or object, that an ongoing protection declaration be made in relation to the place or object.

(2) An ongoing protection declaration may be made—

104 What must an ongoing protection declaration provide for?

An ongoing protection declaration must—

(b) clearly identify the Aboriginal place or object to which it relates; and

(c) specify the measures to be taken for the protection of the Aboriginal place or object; and

(d) if appropriate, specify the person responsible for taking the measures specified under paragraph (c); and

(e) contain the prescribed information (if any).

Example

An ongoing protection declaration could specify measures that restrict or prohibit access to, or interference with, an Aboriginal place or object.

105 Amendment or revocation of ongoing protection declaration

The Minister may, at any time, amend or revoke an ongoing protection declaration—

106 Minister to consult

Before making, amending or revoking an ongoing protection declaration, the Minister must—

(a) consult with the Council about the proposal; and

(b) give any person who the Minister reasonably considers is likely to be affected by the proposal 14 days' written notice of the proposal; and

(c) give each person to whom notice is given under paragraph (b) the opportunity to be heard with respect to the proposal to make, amend or revoke the declaration.

107 Publication of declaration

(1) The Minister must publish in the Government Gazette and in a newspaper circulating generally in the area to which an ongoing protection declaration relates—

(a) the ongoing protection declaration; or

(b) an amendment to the ongoing protection declaration; or

(c) notice of the revocation of the ongoing protection declaration.

(2) A declaration, amendment or revocation does not take effect until the declaration, amendment or notice of the revocation is published in the Government Gazette.

108 Offence to contravene ongoing protection declaration

(a) the person engages in conduct that contravenes an ongoing protection declaration; and

(b) at the time of engaging in the conduct, the person knew of the existence of the declaration.

(a) the person engages in conduct that contravenes an ongoing protection declaration; and

(b) at the time of engaging in the conduct, the person was reckless as to the existence of the declaration.

(5) In this section, engage in conduct means—

(a) to do an act; or

(b) omit to do an act.

(6) An offence under this section is an indictable offence.

The provisions of Division 12 of Part I of the Crimes Act 1958 (which deal with attempts) apply to indictable offences against this Act.

(7) A person who engages in conduct that contravenes an ongoing protection declaration does not commit an offence under this section if the conduct in which the person engaged was necessary because of an emergency.

Note to s. 108 inserted by No. 11/2016 s. 134(2).

Section 187A applies to an offence against subsection (1) or (3).

Division 3—General

109 Declaration has effect

An interim protection declaration, or an ongoing protection declaration, that relates to an Aboriginal place or object has effect despite anything to the contrary in any of the following—

(a) any other Act or law;

(b) an approved cultural heritage management plan;

(c) a cultural heritage agreement;

(d) any other agreement.

110 Notices relating to declarations

(1) This section applies to an Aboriginal place that is subject to an interim protection declaration or an ongoing protection declaration.

(2) A relevant registered Aboriginal party may cause notices to be placed on or near the Aboriginal place which indicate that the place is subject to the interim protection declaration or ongoing protection declaration.

(3) If there is no relevant registered Aboriginal party, the Secretary may cause notices to be placed on or near the Aboriginal place which indicate that the place is subject to the interim protection declaration or ongoing protection declaration.

(4) A relevant registered Aboriginal party or the Secretary (as the case requires) may authorise any person to enter the Aboriginal place for the purpose of placing a notice under this section or repairing, replacing or removing a notice placed under this section.

(5) A person authorised under subsection (4) may enter the Aboriginal place for the purpose of placing a notice under this section or repairing, replacing or removing a notice placed under this section.

(6) A person must not destroy, damage, remove or interfere with a notice fixed under this section without the authorisation of the relevant registered Aboriginal party or the Secretary.

Note to s. 110(6) inserted by No. 11/2016 s. 134(1).

Part 8—Disputes regarding Aboriginal cultural heritage

Division 1—Disputes regarding cultural heritage management plans

Subdivision 1—Alternative dispute resolution

S. 111 substituted by No. 11/2016 s. 72.

111 Meaning of *dispute*

In this Subdivision, dispute means a dispute between 2 or more registered Aboriginal parties, or between the sponsor of a cultural heritage management plan and a registered Aboriginal party, arising in relation to the evaluation of a plan for which approval is sought under section 62, but does not include a dispute arising in relation to the evaluation of a plan for which approval is sought under section 65 or 66.

112 What alternative dispute resolution includes

(1) Alternative dispute resolution under this Subdivision includes preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that—

(a) the parties are fully aware of their rights and obligations; and

(b) there is full and open communication between the parties concerning the dispute.

(2) In this Subdivision—

(a) a reference to alternative dispute resolution includes a reference to mediation; and

(b) a reference to a person conducting alternative dispute resolution includes a reference to a mediator conducting mediation.

113 Referral of disputes for alternative dispute resolution

(1) A registered Aboriginal party or a sponsor of a cultural heritage management plan (or both) may refer a dispute to the Chairperson of the Council for alternative dispute resolution.

S. 113(2) amended by No. 11/2016 s. 73(1).

(2) The Chairperson may (within 30 days after the date on which a dispute is referred under subsection (1)) arrange for the dispute to be the subject of—

(a) mediation by a mediator; or

(b) another appropriate form of alternative dispute resolution by a suitably qualified person.

S. 113(2A) inserted by No. 11/2016 s. 73(2).

(2A) The Chairperson may not arrange for the dispute to be the subject of alternative dispute resolution if the Chairperson reasonably believes that the dispute is unlikely to be resolved by alternative dispute resolution.

(3) A mediation or other alternative dispute resolution must take place within 30 days after the date on which the dispute is referred under subsection (1).

114 Costs of alternative dispute resolution

(1) The costs of alternative dispute resolution under this Subdivision are to be paid by the parties as follows—

(a) in the proportions that the parties agree among themselves; or

(b) if the parties cannot agree, in equal shares.

(2) In this section, costs of alternative dispute resolution means the fees and expenses of the person conducting the alternative dispute resolution.

115 Statements made during alternative dispute resolution not admissible

A statement or admission made in the course of alternative dispute resolution under this Subdivision is not admissible in any legal proceedings.

Subdivision 2—Dispute resolution in VCAT

116 Sponsor may apply to VCAT

(1) The sponsor of a cultural heritage management plan may apply to VCAT for review of a decision of a registered Aboriginal party under section 63 to refuse to approve the plan—

(a) if each relevant registered Aboriginal party has refused to approve the plan under section 63; or

(b) if—

(i) a relevant registered Aboriginal party has decided to refuse to approve the plan under section 63; and

(ii) the dispute arising from that decision has been referred to the Chairperson of the Council for alternative dispute resolution under Subdivision 1; and

(iii) the Chairperson has certified in writing that alternative dispute resolution under Subdivision 1 has failed, or is unlikely, to resolve the dispute.

(2) The sponsor of a cultural heritage management plan may apply to VCAT for review of a decision of the Secretary under section 65 to refuse to approve the plan.

(3) An application for a review must be made within 28 days after the later of—

(a) the day on which the applicant is notified of the decision;

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the applicant requests a statement of reasons for the decision, the day on which the statement of reasons is given to the applicant or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

117 Parties to proceeding

(1) The parties to a proceeding under section 116(1) are the sponsor and any relevant registered Aboriginal party.

(2) The parties to a proceeding under section 116(2) are the sponsor and the Secretary.

118 Decision of VCAT

On an application under this Division, VCAT may—

(a) approve the cultural heritage management plan; or

S. 118(b) amended by No. 11/2016 s. 74.

(b) approve the cultural heritage management plan with amendments to the conditions of the plan; or

(c) refuse to approve the cultural heritage management plan.

119 VCAT to consider certain matters

(1) Before reaching a decision on an application under section 116(1), VCAT must consider any matter that the registered Aboriginal party was required to consider when making the decision in respect of which the application was made.

(2) Before reaching a decision on an application under section 116(2), VCAT must consider any matter that the Secretary was required to consider when making the decision in respect of which the application was made.

120 VCAT to be satisfied of certain matters

Before deciding to approve a cultural heritage management plan under this Division, VCAT must be satisfied that the plan makes sufficient provision for the activity to which it relates to be managed so as—

(a) to avoid harm to Aboriginal cultural heritage in the area to which the plan applies; and

(b) to the extent that harm cannot be reasonably avoided, to minimise harm to Aboriginal cultural heritage.

Division 2—Disputes regarding cultural heritage permits

121 Applicant for cultural heritage permit may apply to VCAT

S. 121(1) amended by No. 11/2016 s. 75.

(1) An applicant for a cultural heritage permit under section 36(1)(c) may apply to VCAT for review of a decision of anapproval body—

(a) to refuse to grant the cultural heritage permit; or

(b) to impose a condition on the cultural heritage permit.

1. An application for a review must be made within 28 days after the later of—

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the applicant requests a statement of reasons for the decision, the day on which the statement of reasons is given to the applicant or the applicant is informed under section 46(5) of that Act that a statement of reasons will not be given.

S. 122 amended by No. 11/2016 s. 76.

122 Parties to proceeding

The applicant, any relevant registered Aboriginal party and the approvalbody are parties to a proceeding under this Division.

123 Decision of VCAT

On an application under this Division, VCAT may make an order that—

(a) the cultural heritage permit must be granted; or

(b) the cultural heritage permit must not be granted; or

(c) the cultural heritage permit must or must not include a specified condition.