Aboriginal Heritage (Transitional Provisions) Regulations 2023 (Western Australia)

These Regulations create a comprehensive transitional framework for the repeal of the Aboriginal Cultural Heritage Act 2021 (the 2021 Act) and the re‑application, amendment or continuation of relevant measures under the Aboriginal Heritage Act 1972 (the Act). The Regulations commence in two stages (r 2): Part 1 (except reg 4) on publication, and the remainder on the day the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 s 3 comes into operation (defined as repeal day, r 4). The stated purpose is to give effect to s 71(2) of the Act (r 3).

Mechanically, the Regulations do the following (selected, source‑grounded list):

Preserve and allow recovery or refund of fees charged or payable to local Aboriginal cultural heritage services under the 2021 Act (rr 5-6). Unpaid fees may be recovered as debts (r 5(2)); paid but unrendered services must be refunded within 14 days after repeal day (r 6(2)).
Ensure certain human remains and culturally restricted objects transferred to the Committee remain governed by specific 2021 Act provisions after repeal day: Aboriginal ancestral remains (r 7 continuing s 55 of the 2021 Act) and secret or sacred objects (r 9 continuing s 63) where custody transferred under the Act (see r 7(1), r 9(1)).
Remove duties that would otherwise continue: organisations’ duties to return ancestral remains and prescribed public authorities’ duties to return secret or sacred objects cease at the beginning of repeal day (rr 8(3), 10(3)).
Terminate pending protected‑area applications immediately on repeal day (r 11(2)), while preserving s 73 of the Act (r 11(3)). Registrar‑made endorsements or notations under the 2021 Act must be removed on repeal day and consequential land‑title updates made (r 12).
Preserve some offence‑related remedies and evidence rules: determinations under s 99(3) of the 2021 Act survive (r 13(1)); section 104(5) of the 2021 Act may be used in evidence in continuing or commenced proceedings (r 14).

CrestWestern Australia

Aboriginal Heritage Act 1972

Aboriginal Heritage (Transitional Provisions) Regulations 2023

Western Australia

Aboriginal Heritage (Transitional Provisions) Regulations 2023

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Purpose 1
Terms used 1

Part 2 — Local Aboriginal cultural heritage services

Recovery of fees by local Aboriginal cultural heritage service for services provided before repeal day 3
Refund of fees charged by local Aboriginal cultural heritage service before repeal day for services not provided 4

Part 3 — Remains and objects

Aboriginal ancestral remains transferred to Committee 5
Duty of organisations to return Aboriginal ancestral remains 5
Secret or sacred objects transferred to Committee 5
Duty of prescribed public authorities to return secret or sacred objects 6

Part 4 — Protected areas

Application for area to be declared as protected area 7
Endorsements and notations 7

Part 5 — Matters relating to offences under Part 5 of 2021 Act

Compensation for harm 8
Letter of advice may be used in evidence 9

Part 6 — Section 18 consents and other authorisations, approvals and consents

Division 1 — ACH permits

ACH permits transitioned as s. 18 consents 10
Applications for ACH permits transitioned as s. 18 notices 12

Division 2 — ACH management plans

Term used: proponent 13
Approvals of ACH management plans transitioned as s. 18 consents 13
Authorisations of ACH management plans transitioned as s. 18 consents 15
Applications for approval of ACH management plans transitioned as s. 18 notices 17
Applications for authorisation of ACH management plans transitioned as s. 18 notices 18

Division 3 — Other matters

Previous consents under s. 18 of Act 19
Marandoo Act area 20
Previous other authorisations, approvals and consents 20
Conditions under s. 18(6) of Act 21
Application of s. 18B of Act 22
Outstanding notices under s. 18(2) of Act 22

Part 7 — Defences to certain charges

Application of Part 24
Defence based on s. 96 and 98(a) of 2021 Act 24
Defence based on s. 98(d) of 2021 Act 27

Part 8 — Remediation

Authorisations to carry out remediation if remediation order contravened 29
Recovery of remediation costs 30
Recovery of costs by person given remediation order 30

Part 9 — ACH Directory

Transfer of information and documents included on ACH Directory 31

Part 10 — Securing compliance

Division 1 — Preliminary

Terms used 32

Division 2 — Application of Criminal Investigation Act 2006

Authorised officers 32
Authorised officers to be public officers under CI Act 32
Entering Aboriginal places 33
Dealing with Aboriginal ancestral remains 33
Forensic examination of Aboriginal objects 34

Division 3 — Seized things

Security of seized things 34
Dealing with, and forfeiture of, seized things 35
Dealing with seized Aboriginal objects 35
Application of Criminal and Found Property Disposal Act 2006 36

Part 11 — Other matters

Revival of things that ceased to have effect before repeal day 37
Things previously done by or in relation to Aboriginal Cultural Material Committee 38
Disclosure of information under s. 303 of 2021 Act 38
Protection from liability for wrongdoing 38
Records of ACH Council 39
Confidentiality 39
Use of information 41
References to Aboriginal Cultural Heritage Act 2021 42
Delegations by Minister 42
Delegations by chief executive officer 42

Notes

Compilation table 43

Defined terms

Aboriginal Heritage Act 1972

Aboriginal Heritage (Transitional Provisions) Regulations 2023

Part 1 — Preliminary

1. Citation

	These regulations are the *Aboriginal Heritage (Transitional Provisions) Regulations 2023*.

2. Commencement

These regulations come into operation as follows —

(a) Part 1 (other than regulation 4) — on the day on which these regulations are published on the WA legislation website;

(b) the rest of the regulations — on the day on which the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 section 3 comes into operation.

3. Purpose

These regulations are made for the purposes of section 71(2) of the Act.

4. Terms used

In these regulations —

2021 Act —

(a) means the Aboriginal Cultural Heritage Act 2021; and

(b) unless otherwise indicated, includes regulations made under that Act;

Aboriginal ancestral remains has the meaning that was given in section 11 of the 2021 Act;

Aboriginal object has the meaning that was given in section 11 of the 2021 Act;

ACH Council means the body referred to in section 72(2)(a) of the Act;

ACH management plan has the meaning that was given in section 137(1) of the 2021 Act;

ACH permit has the meaning that was given in section 100 of the 2021 Act;

owner, in relation to land, has a meaning affected by section 18(1) and (1a) of the Act;

repeal day means the day on which the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 section 3 comes into operation;

secret or sacred object has the meaning that was given in section 11 of the 2021 Act.

Part 2 — Local Aboriginal cultural heritage services

5. Recovery of fees by local Aboriginal cultural heritage service for services provided before repeal day

(1) Subregulation (2) applies to a person if, before repeal day —

(a) the person is designated under section 37(1) of the 2021 Act; and

(b) the person provides services for which the person may charge a fee under section 49 of the 2021 Act; and

(d) the fee is not paid or is not paid in full.

(2) Despite the repeal of the 2021 Act, the person may, on or after repeal day, recover the unpaid amount as a debt due in a court of competent jurisdiction.

(3) Subregulation (4) applies if, before repeal day —

(a) a person is designated under section 37(1) of the 2021 Act; and

(b) the person provides services for which the person may charge a fee under section 49 of the 2021 Act; and

(4) On and after repeal day, section 49 of the 2021 Act continues to apply in relation to the services as if the 2021 Act had not been repealed.

(5) Section 80(2)(d) of the Act applies subject to this regulation.

6. Refund of fees charged by local Aboriginal cultural heritage service before repeal day for services not provided

(1) This regulation applies to a person if, before repeal day —

(a) the person is designated under section 37(1) of the 2021 Act; and

(b) the person charges a fee for services under section 49 of the 2021 Act; and

(d) the person does not provide some or all of the services.

(2) Despite the repeal of the 2021 Act, the person must, within 14 days after repeal day, refund, as the case requires —

(a) the whole of the fee; or

(b) so much of the fee as is attributable to the services that were not provided.

(3) Subregulation (2) does not apply to the amount referred to in subregulation (2)(a) or (b) to the extent that the amount was refunded before repeal day.

(4) If the person does not comply with subregulation (2), the person who was charged the fee may recover the unrefunded amount as a debt due in a court of competent jurisdiction.

(5) Section 80(2)(d) of the Act applies subject to this regulation.

Part 3 — Remains and objects

7. Aboriginal ancestral remains transferred to Committee

(1) This regulation applies to Aboriginal ancestral remains that are transferred into the custody of the Committee under section 82(3) of the Act.

(2) On and after repeal day, section 55 of the 2021 Act continues to apply in relation to the ancestral remains as if the 2021 Act had not been repealed.

8. Duty of organisations to return Aboriginal ancestral remains

(1) In this regulation —

organisation has the meaning that was given in section 53 of the 2021 Act.

(2) This regulation applies to an organisation that was in possession of Aboriginal ancestral remains before repeal day.

(3) Any duty of the organisation under section 57 of the 2021 Act in relation to the ancestral remains ceases at the beginning of repeal day.

9. Secret or sacred objects transferred to Committee

(1) This regulation applies to a secret or sacred object that is transferred into the custody of the Committee under section 83(3) of the Act.

(2) On and after repeal day, section 63 of the 2021 Act continues to apply in relation to the object as if the 2021 Act had not been repealed.

10. Duty of prescribed public authorities to return secret or sacred objects

(1) In this regulation —

prescribed public authority has the meaning that was given in section 62 of the 2021 Act.

(2) This regulation applies to a prescribed public authority that was in possession of a secret or sacred object before repeal day.

(3) Any duty of the prescribed public authority under section 65 of the 2021 Act in relation to the object ceases at the beginning of repeal day.

Part 4 — Protected areas

11. Application for area to be declared as protected area

(1) This regulation applies to an application made under section 72(1) or 83(1) of the 2021 Act that, immediately before repeal day, is on foot or otherwise has any effect.

(2) At the beginning of repeal day, the application is terminated and otherwise ceases to have any effect (and, accordingly, on and after repeal day, nothing further can be done, or is to be done, on or in relation to the application).

(3) This regulation does not affect the application of section 73 of the Act.

12. Endorsements and notations

(1) In this regulation —

endorsement or notation means an endorsement or notation that was referred to in section 87(5) of the 2021 Act;

Registrar has the meaning that was given in section 87(1) of the 2021 Act.

(2) No endorsement or notation can be made on or after repeal day.

(3) If an endorsement or notation was made before repeal day, the Registrar must —

(a) remove the endorsement or notation; and

(b) make any other amendment to the certificate of title or other register or record that the Registrar considers necessary as a consequence of, or to give effect to, the removal.

Part 5 — Matters relating to offences under Part 5 of 2021 Act

13. Compensation for harm

(1) The repeal of the 2021 Act does not affect a determination made under section 99(3) of the 2021 Act before repeal day and, accordingly, compensation is payable on and after repeal day in accordance with the determination (to the extent not paid before repeal day).

(2) On and after repeal day, section 99 of the 2021 Act continues to apply, as if the 2021 Act had not been repealed, in relation to an offence under Part 5 Division 2 of the 2021 Act —

(a) that is committed before repeal day; and

(b) in relation to which no determination is made under section 99(3) of the 2021 Act before repeal day.

(3) For the purposes of subregulation (2) —

(a) the functions of the CEO under section 99(1), (3) and (5) of the 2021 Act are functions of the chief executive officer of the Department; and

(b) the function of the Minister in relation to the 2021 Act under section 99(1) of the 2021 Act is a function of the Minister; and

(4) Compensation payable on or after repeal day in accordance with a determination referred to in subregulation (1), or a determination made by virtue of subregulation (2), is payable by the chief executive officer of the Department.

(5) The maximum amount that can be set as the compensation sum in a determination made by virtue of subregulation (2) is the amount of any fine imposed as a penalty for the offence.

14. Letter of advice may be used in evidence

Without limiting section 84(1) of the Act, section 104(5) of the 2021 Act applies, as if the 2021 Act had not been repealed, in relation to any proceedings for an offence under Part 5 Division 2 of the 2021 Act that are continued or commenced as referred to in section 84(1) of the Act.

Part 6 — Section 18 consents and other authorisations, approvals and consents

Division 1 — ACH permits

15. ACH permits transitioned as s. 18 consents

(1) This regulation applies in relation to an ACH permit that, under section 76(2) of the Act, is a consent given under section 18(3)(a) of the Act.

(2) The following apply to the consent —

(a) the land that is the subject of the consent is the area that, immediately before repeal day, is detailed in the ACH permit under section 120(3)(c) of the 2021 Act;

(b) the purpose for which that land may be used under the consent is the carrying out of the activity that, immediately before repeal day, is detailed in the ACH permit under section 120(3)(b) of the 2021 Act.

(3) The person who holds the ACH permit immediately before repeal day is, for the purposes of the consent, an owner of the land the subject of the consent (whether or not the person is actually an owner of that land).

(4) A condition under section 128(1) of the 2021 Act has no effect on and after repeal day in relation to the consent (subject to subregulation (5)).

(5) If any reporting requirements are specified in the ACH permit immediately before repeal day —

(a) the consent is subject to a condition that an owner of the land the subject of the consent must comply with the reporting requirements; and

(b) for the purposes of paragraph (a) —

(i) any references in the reporting requirements to the ACH Council are taken to be references to the Committee; and

(ii) the reporting requirements apply with any other necessary modifications.

Note for this subregulation:

The condition under this subregulation is based on the condition that was under section 128(1)(b) of the 2021 Act.

(6) If a condition, other than a condition referred to in subregulation (4), applies to the ACH permit immediately before repeal day —

(a) the consent is subject to the condition; and

(b) for the purposes of paragraph (a) —

(i) any references in the condition to the ACH Council are taken to be references to the Committee; and

(ii) the condition applies with any other necessary modifications.

(7) For the purpose of determining under subregulation (6) whether a condition applies to the ACH permit immediately before repeal day, it does not matter if the ACH permit did not take effect before repeal day.

(8) A condition under subregulation (5) or (6) is taken to be a condition imposed by the Minister under section 18(3)(a) of the Act, and can be amended under section 18(6A), 18A(9) or 18B(3) of the Act accordingly.

(9) Nothing in this regulation affects the application of section 84 of the Act in relation to a contravention of a condition before repeal day.

(10) If the ACH permit did not take effect before repeal day, the consent takes effect on the day that was specified in the ACH permit as was referred to in section 121(a)(ii) of the 2021 Act.

(11) The consent expires at the end of the period of 4 years after —

(a) if the ACH permit took effect before repeal day — the day on which the ACH permit took effect; or

(b) otherwise — the day on which the consent takes effect under subregulation (10).

Note for this subregulation:

The 4‑year period is based on the 4‑year period that was referred to in section 121(b) of the 2021 Act.

16. Applications for ACH permits transitioned as s. 18 notices

(1) This regulation applies in relation to an application for an ACH permit that, under section 76(7) of the Act, is taken to be a notice given to the Committee under section 18(2) of the Act.

(2) The following apply to the notice —

(a) the land that is the subject of the notice is the area that, immediately before repeal day, is detailed in the application under section 115(2)(b) of the 2021 Act;

(b) the purpose for which that land is required to be used is the carrying out of the activity that, immediately before repeal day, is detailed in the application under section 115(2)(b) of the 2021 Act;

(c) the Aboriginal Heritage Regulations 1974 regulation 14(2) to (7) apply as if the notice were given to the Committee on repeal day by the person who made the application for the ACH permit.

(3) The person who made the application for the ACH permit —

(a) is, for the purposes of the notice, an owner of the land the subject of the notice (whether or not the person is actually an owner of that land); and

(b) if a consent is given under section 18(3)(a) of the Act in relation to the notice — is, for the purposes of the consent, an owner of the land the subject of the consent (whether or not the person is actually an owner of that land).

Division 2 — ACH management plans

17. Term used: proponent

In this Division —

proponent, for an ACH management plan, means the person who, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(i) of the 2021 Act.

18. Approvals of ACH management plans transitioned as s. 18 consents

(1) This regulation applies in relation to an approval of an ACH management plan that, under section 77(2) of the Act, is a consent given under section 18(3)(a) of the Act.

(2) The following apply to the consent —

(a) the land that is the subject of the consent is the area that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iii) of the 2021 Act;

(b) the purpose for which that land may be used under the consent is the carrying out of the activity that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iv) of the 2021 Act.

(3) The proponent for the ACH management plan is, for the purposes of the consent, an owner of the land the subject of the consent (whether or not the proponent is actually an owner of that land).

(4) A condition under section 153 of the 2021 Act has no effect on and after repeal day in relation to the consent (subject to subregulation (5)).

(5) If any reporting requirements are specified in the ACH management plan immediately before repeal day —

(a) the consent is subject to a condition that an owner of the land the subject of the consent must comply with the reporting requirements; and

(b) for the purposes of paragraph (a) —

(i) any references in the reporting requirements to the ACH Council are taken to be references to the Committee; and

(ii) the reporting requirements apply with any other necessary modifications.

Note for this subregulation:

The condition under this subregulation is based on the condition that was under section 153(b) of the 2021 Act.

(6) A condition under subregulation (5) is taken to be a condition imposed by the Minister under section 18(3)(a) of the Act, and can be amended under section 18(6A), 18A(9) or 18B(3) of the Act accordingly.

(7) Nothing in this regulation affects the application of section 84 of the Act in relation to a contravention of a condition before repeal day.

(8) If the approval of the ACH management plan did not take effect before repeal day, the consent takes effect on the day that was specified in the notice given under section 150(7) of the 2021 Act as was referred to in section 152(a) of the 2021 Act.

19. Authorisations of ACH management plans transitioned as s. 18 consents

(1) This regulation applies in relation to an authorisation of an ACH management plan that, under section 77(2) of the Act, is a consent given under section 18(3)(a) of the Act.

(2) The following apply to the consent —

(a) the land that is the subject of the consent is the area that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iii) of the 2021 Act;

(3) The proponent for the ACH management plan is, for the purposes of the consent, an owner of the land the subject of the consent (whether or not the proponent is actually an owner of that land).

(4) A condition under section 167(1) of the 2021 Act has no effect on and after repeal day in relation to the consent (subject to subregulation (5)).

(5) If any reporting requirements are specified in the ACH management plan immediately before repeal day —

(a) the consent is subject to a condition that an owner of the land the subject of the consent must comply with the reporting requirements; and

(b) for the purposes of paragraph (a) —

(i) any references in the reporting requirements to the ACH Council are taken to be references to the Committee; and

(ii) the reporting requirements apply with any other necessary modifications.

Note for this subregulation:

The condition under this subregulation is based on the condition that was under section 167(1)(b) of the 2021 Act.

(6) If a condition, other than a condition referred to in subregulation (4), applies to the authorisation immediately before repeal day —

(a) the consent is subject to the condition; and

(b) for the purposes of paragraph (a) —

(i) any references in the condition to the ACH Council are taken to be references to the Committee; and

(ii) the condition applies with any other necessary modifications.

(7) For the purpose of determining under subregulation (6) whether a condition applies to the authorisation immediately before repeal day, it does not matter if the authorisation did not take effect before repeal day.

(9) Nothing in this regulation affects the application of section 84 of the Act in relation to a contravention of a condition before repeal day.

(10) If the authorisation of the ACH management plan did not take effect before repeal day, the consent takes effect on the day that was specified in the authorisation as was referred to in section 166(a)(ii) of the 2021 Act.

20. Applications for approval of ACH management plans transitioned as s. 18 notices

(1) This regulation applies in relation to an application for approval of an ACH management plan that, under section 77(8) of the Act, is taken to be a notice given to the Committee under section 18(2) of the Act.

(2) The following apply to the notice —

(a) the land that is the subject of the notice is the area that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iii) of the 2021 Act;

(b) the purpose for which that land is required to be used is the carrying out of the activity that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iv) of the 2021 Act;

(c) the Aboriginal Heritage Regulations 1974 regulation 14(2) to (7) apply as if the notice were given to the Committee on repeal day by the person who made the application for approval of the ACH management plan.

(3) The person who made the application for approval of the ACH management plan —

(a) is, for the purposes of the notice, an owner of the land the subject of the notice (whether or not the person is actually an owner of that land); and

21. Applications for authorisation of ACH management plans transitioned as s. 18 notices

(1) This regulation applies in relation to an application for authorisation of an ACH management plan that, under section 77(11) of the Act, is taken to be a notice given to the Committee under section 18(2) of the Act.

(2) The following apply to the notice —

(a) the land that is the subject of the notice is the area that, immediately before repeal day, is identified in the ACH management plan under section 137(2)(a)(iii) of the 2021 Act;

(c) the Aboriginal Heritage Regulations 1974 regulation 14(2) to (7) apply as if the notice were given to the Committee on repeal day by the person who made the application for authorisation of the ACH management plan.

(3) The person who made the application for authorisation of the ACH management plan —

(a) is, for the purposes of the notice, an owner of the land the subject of the notice (whether or not the person is actually an owner of that land); and

Division 3 — Other matters

22. Previous consents under s. 18 of Act

(1) This regulation applies to a consent under section 18 of the Act to which section 74(1) or (2) of the Act applies.

(2) If section 325(1) of the 2021 Act applied to the consent immediately before repeal day, on and after repeal day that provision must be disregarded for the purpose of determining the duration of the consent.

(3) If the consent was given under section 18(3)(a) of the Act subject to a condition, on and after repeal day the consent is subject to the condition as a condition under section 18(3)(a) of the Act.

(4) If, immediately before repeal day, the consent is subject to a condition under section 18(6) of the Act as was inserted by section 340 of the 2021 Act, the condition ceases to have effect at the beginning of repeal day.

(5) If, immediately before repeal day, the consent is subject to a condition under section 167(1) of the 2021 Act, the condition ceases to have effect at the beginning of repeal day.

(6) Despite subregulation (3), if the consent was given under section 18(3)(a) of the Act subject to a condition that the consent is of effect only for 5 years, or any shorter period that is specified in the consent, beginning on the day on which the consent takes effect, the condition has no effect on and after repeal day.

(7) Despite subregulation (3), if the consent was given under section 18(3)(a) of the Act subject to a condition that the consent holder must notify the Minister for Aboriginal Affairs if they become aware of any new information about Aboriginal cultural heritage in relation to the land that is the subject of the consent, the condition has no effect on and after repeal day.

(8) Nothing in this regulation affects the application of section 74(5) of the Act to the consent.

(9) Nothing in this regulation affects the application of section 84 of the Act in relation to a contravention of a condition before repeal day.

23. Marandoo Act area

(1) A person to whom a consent is taken to have been given under section 78(2) of the Act is, for the purposes of the consent, an owner of the land the subject of the consent (whether or not the person is actually an owner of that land).

(2) A consent that a person was taken to hold under section 328(1) of the 2021 Act has no effect on and after repeal day.

24. Previous other authorisations, approvals and consents

(1) Subregulation (2) applies to an authorisation to which section 75(1) or (2) of the Act applies.

(2) If the authorisation was given under section 16(2) of the Act subject to a condition, on and after repeal day the authorisation is subject to the condition as a condition under section 16(2) of the Act.

(3) Subregulation (4) applies to an approval to which section 75(3) or (4) of the Act applies.

(4) If the approval was given under the Aboriginal Heritage Regulations 1974 regulation 7 subject to a condition, on and after repeal day the approval is subject to the condition as a condition imposed under that regulation.

(5) Subregulation (6) applies to a consent to which section 75(5) or (6) of the Act applies.

(6) If the consent was given under the Aboriginal Heritage Regulations 1974 regulation 10 subject to a condition, on and after repeal day the consent is subject to the condition as a condition imposed under that regulation.

25. Conditions under s. 18(6) of Act

(1) In this regulation —

relevant authority means any of the following —

(a) the Minister;

(b) the Minister in relation to the 2021 Act;

transitioned consent means any of the following —

(a) a consent under section 18 of the Act to which section 74(1) or (2) of the Act applies;

(b) an ACH permit that, under section 76(2) of the Act, is a consent given under section 18(3)(a) of the Act;

(c) an approval of an ACH management plan that, under section 77(2) of the Act, is a consent given under section 18(3)(a) of the Act;

(d) an authorisation of an ACH management plan that, under section 77(2) of the Act, is a consent given under section 18(3)(a) of the Act.

(2) This regulation applies if —

(a) before repeal day, a person gave a notification (the original notification) to a relevant authority in accordance with a condition that applied to a transitioned consent; and

(b) the person is required to give the same notification, in substance, to the Minister in accordance with a condition under section 18(6) of the Act as in force on repeal day.

(3) The original notification is taken —

(a) to be the notification that the person is required to give as referred to in subregulation (2)(b); and

(b) to have been given to the Minister on repeal day.

26. Application of s. 18B of Act

(1) This regulation applies in relation to a consent given under section 18(3)(a) of the Act if —

(a) a person —

(i) is, for the purposes of the consent, an owner of the land the subject of the consent by virtue of regulation 15(3), 16(3)(b), 18(3), 19(3), 20(3)(b), 21(3)(b) or 23(1); but

(ii) is not actually an owner of that land;

and

(b) the person ceases to use that land for the purpose for which the land may be used under the consent (the consented purpose), other than because of the consented purpose having been achieved.

(2) Section 18B of the Act applies as if references in that section to a change in ownership of land the subject of a consent under section 18(3)(a) of the Act also referred to the person ceasing to use the land for the consented purpose.

27. Outstanding notices under s. 18(2) of Act

(1) Subregulation (2) applies to a notice given under section 18(2) of the Act before repeal day by the owner of any land if the notice is not submitted under section 18(2) of the Act to the Minister before repeal day.

(2) The Aboriginal Heritage Regulations 1974 regulation 14(2) to (7) apply in relation to the notice as if the notice were given to the Committee on repeal day.

(3) Subregulation (4) applies to a notice given under section 18(2) of the Act before repeal day by the owner of any land if, before repeal day —

(a) the notice is submitted to the Minister under section 18(2) of the Act; but

(b) the Minister does not make a decision under section 18(3) of the Act in relation to the notice.

(4) The Aboriginal Heritage Regulations 1974 regulation 14(7) applies in relation to the notice as if the notice were submitted to the Minister on repeal day.

Part 7 — Defences to certain charges

28. Application of Part

(1) This Part applies to the following offences —

(a) an offence under section 17 of the Act;

(b) an offence under the Aboriginal Heritage Regulations 1974 regulation 7 or 10.

(2) The provisions referred to in subregulation (1)(a) and (b) apply subject to this Part.

29. Defence based on s. 96 and 98(a) of 2021 Act

(1) It is a defence to a charge of an offence to prove —

(a) that the act constituting the offence —

(i) is done during the period of 1 year beginning on repeal day; and

(ii) is, or is part of, an authorised activity;

and

(b) that the substantial commencement condition is met.

(2) The substantial commencement condition is met if the authorised activity referred to in subregulation (1)(a)(ii) was substantially commenced before repeal day.

(3) The substantial commencement condition is also met if —

(a) the authorised activity referred to in subregulation (1)(a)(ii) can reasonably be regarded as part of a single project that consists only of —

(i) the authorised activity; and

(ii) 1 or more other authorised activities;

and

(b) the project was substantially commenced before repeal day.

(4) An activity is authorised if —

(a) to the extent that the activity was carried out before repeal day — the carrying out of the activity was authorised under section 109 or 110 of the 2021 Act; and

(b) to the extent that the activity is carried out on or after repeal day — the carrying out of the activity would have been authorised under section 109 or 110 of the 2021 Act had the 2021 Act not been repealed.

(5) For the purposes of subregulation (4)(b) —

(a) in applying sections 109(a) and 110(a) of the 2021 Act, in the Aboriginal Cultural Heritage Regulations 2022 Schedule 1 —

(i) references to the ACH Directory are to the ACH Directory as it stood immediately before repeal day; and

(ii) references to an approved or authorised ACH management plan are to such a plan that was approved or authorised before repeal day; and

(iii) references to a written approval are to a written approval given before repeal day;

and

(b) in applying sections 109(b) and 110(b) of the 2021 Act, references to a protected area are to an area that was a protected area under the 2021 Act immediately before repeal day; and

(i) any due diligence assessment undertaken on or after repeal day as provided for in section 102 of the 2021 Act must be in accordance with the ACH Management Code referred to in section 102 of the 2021 Act as that Code was in effect immediately before repeal day; and

(ii) the reference in section 102(a) of the 2021 Act to a protected area is to an area that was a protected area under the 2021 Act immediately before repeal day; and

(iii) the modifications of the Aboriginal Cultural Heritage Regulations 2022 Schedule 1 in paragraph (a) apply.

(6) An activity is also authorised if it is carried out by a person and —

(a) before the person commenced the activity, the person made an assessment, in undertaking a due diligence assessment in relation to the carrying out of the activity, that there was no risk of harm being caused to Aboriginal cultural heritage by the activity; and

(b) in carrying out the activity, the person took all reasonable steps possible to avoid, or minimise, the risk of harm being caused to Aboriginal cultural heritage by the activity.

Note for this subregulation:

This subregulation is based on section 98(a) of the 2021 Act.

(7) In subregulation (6) —

Aboriginal cultural heritage has the meaning that was given in section 12 of the 2021 Act;

due diligence assessment has the meaning that was given in section 102 of the 2021 Act;

harm has a meaning affected by section 90 of the 2021 Act.

(8) In applying the definition of due diligence assessment in subregulation (7) —

(a) any due diligence assessment undertaken on or after repeal day as provided for in section 102 of the 2021 Act must be in accordance with the ACH Management Code referred to in section 102 of the 2021 Act as that Code was in effect immediately before repeal day; and

(b) the reference in section 102(a) of the 2021 Act to a protected area is to an area that was a protected area under the 2021 Act immediately before repeal day; and

30. Defence based on s. 98(d) of 2021 Act

(1) It is a defence to a charge of an offence to prove —

(a) that the act constituting the offence —

(i) is done during the period of 1 year beginning on repeal day; and

(ii) is, or is part of, an emergency activity;

and

(b) that the substantial commencement condition is met.

(2) The substantial commencement condition is met if the emergency activity referred to in subregulation (1)(a)(ii) was substantially commenced before repeal day.

(3) The substantial commencement condition is also met if —

(a) the emergency activity referred to in subregulation (1)(a)(ii) can reasonably be regarded as part of a response to an emergency situation that consists only of —

(i) the emergency activity; and

(ii) 1 or more other emergency activities;

and

(b) the response to the emergency situation was substantially commenced before repeal day.

(4) An activity is an emergency activity if it is carried out in an emergency situation for the purpose of preventing or minimising 1 or more of the following —

(a) loss of life of people;

(b) prejudice to the safety of people;

Note for this subregulation:

This subregulation is based on section 98(d) of the 2021 Act.

Part 8 — Remediation

31. Authorisations to carry out remediation if remediation order contravened

(1) In this regulation —

remediation order has the meaning that was given in section 11 of the 2021 Act.

(2) An authorisation under section 197(1) of the 2021 Act that is in effect immediately before repeal day continues in effect on and after repeal day as if the 2021 Act had not been repealed.

(3) Subregulation (4) applies to a contravention of a remediation order —

(a) that occurs before repeal day; but

(b) in relation to which no authorisation is given under section 197(1) of the 2021 Act before repeal day.

(4) On and after repeal day, section 197(1) of the 2021 Act continues to apply in relation to the contravention as if the 2021 Act had not been repealed, and an authorisation may be given in relation to the contravention accordingly.

(5) For the purposes of subregulation (4), an authorisation may be given by the Minister.

(6) Nothing done that is authorised by an authorisation to which subregulation (2) applies, or an authorisation given by virtue of subregulation (4), constitutes an offence against the Act.

(7) The provisions of the Act creating, or otherwise relating to, offences apply subject to subregulation (6).

(8) Section 80(2)(b) of the Act applies subject to this regulation.

32. Recovery of remediation costs

(1) Section 197(2) of the 2021 Act continues to apply on and after repeal day in relation to the following costs of remediation as if the 2021 Act had not been repealed —

(a) costs incurred before repeal day;

(b) costs incurred on or after repeal day by virtue of an authorisation to which regulation 31(2) applies;

(2) For the purposes of subregulation (1), proceedings under section 197(2) of the 2021 Act may be continued or commenced by the Minister.

(3) Section 80(2)(b) of the Act applies subject to this regulation.

33. Recovery of costs by person given remediation order

(1) Section 199 of the 2021 Act continues to apply on and after repeal day in relation to costs of compliance incurred before repeal day as if the 2021 Act had not been repealed.

(2) Section 80(2)(b) of the Act applies subject to this regulation.

Part 9 — ACH Directory

34. Transfer of information and documents included on ACH Directory

(1) In this regulation —

ACH Directory means the directory established under section 211 of the 2021 Act.

(2) Subregulation (3) applies to the information and documents included on the ACH Directory immediately before repeal day to the extent that the information and documents —

(a) are not those to which section 81 of the Act applies; and

(b) are of a kind that can be recorded in a register maintained under section 38 of the Act.

(3) On repeal day, the information and documents must be transferred to, and recorded in, a register under section 38 of the Act.

Part 10 — Securing compliance

Division 1 — Preliminary

35. Terms used

In this Part —

authorised officer means an officer of the Department authorised under regulation 36(1);

CI Act means the Criminal Investigation Act 2006.

Division 2 — Application of Criminal Investigation Act 2006

36. Authorised officers

(1) The chief executive officer of the Department may authorise officers of the Department for the purposes of this Division.

(2) An authorised officer is authorised to investigate offences under the 2021 Act committed before repeal day.

Note for this subregulation:

These are offences to which section 84(1) of the Act applies.

37. Authorised officers to be public officers under CI Act

(1) For the purposes of section 9(1) of the CI Act, the authorisation of an officer of the Department under regulation 36(1) is taken to be an appointment to an office.

(2) For the purposes of the CI Act —

(a) the office of authorised officer is taken to be prescribed by the Act under section 9(1)(a) of the CI Act; and

(b) the following powers in the CI Act are taken to be prescribed by the Act under section 9(1)(b) of the CI Act in respect of that office —

(i) the powers in Part 2;

(ii) the powers in Part 5 Division 1;

(iii) the powers in section 33;

(iv) the powers in section 39, except subsection (1)(f);

(v) the powers in Part 5 Division 3, except sections 43(8)(b)(ii) and 44(2)(f) and (g)(iv);

(vi) the powers in Part 6;

(vii) the powers in Part 7;

(viii) the powers in Part 13.

38. Entering Aboriginal places

(1) In relation to the investigation of an offence by an authorised officer, section 232 of the 2021 Act applies as if the 2021 Act had not been repealed.

(2) For the purposes of subregulation (1), in section 232 of the 2021 Act —

(a) the reference to section 231(1)(a) of the 2021 Act is to any provision of the CI Act that gives a power to enter a place without a warrant; and

(b) references to an inspector are to an authorised officer.

39. Dealing with Aboriginal ancestral remains

(1) This Division does not authorise the seizure of Aboriginal ancestral remains.

(2) In relation to the investigation of an offence by an authorised officer, section 242 of the 2021 Act applies as if the 2021 Act had not been repealed.

(3) For the purposes of subregulation (2) —

(a) in section 242 of the 2021 Act —

(i) references to an inspector are to an authorised officer; and

(ii) the reference to Part 10 Division 3 of the 2021 Act is to the CI Act; and

(iii) the reference to the ACH Council is to the Committee;

and

(b) if human remains are transferred into the custody of the Committee under section 242(b) of the 2021 Act — section 82(4) of the Act applies as if the human remains had been transferred into the custody of the Committee under section 82(3) of the Act (whether or not the human remains are Aboriginal ancestral remains).

(4) If human remains transferred into the custody of the Committee under section 242(b) of the 2021 Act are Aboriginal ancestral remains, regulation 7 applies accordingly.

40. Forensic examination of Aboriginal objects

In conducting a forensic examination of an Aboriginal object under section 21 of the CI Act, an authorised officer must not dismantle, damage or destroy the object.

Division 3 — Seized things

41. Security of seized things

(1) Section 240(1) of the 2021 Act continues to apply on and after repeal day in relation to things seized before repeal day as if the 2021 Act had not been repealed.

(2) Section 240(1) of the 2021 Act applies in relation to things seized in the exercise of powers under the CI Act by virtue of Division 2 as if —

(a) the 2021 Act had not been repealed; and

(b) the reference to an inspector seizing a thing were to an authorised officer seizing a thing.

(3) For the purposes of subregulations (1) and (2), the function of an inspector under section 240(1) of the 2021 Act is a function of the chief executive officer of the Department.

(4) A person must not move, tamper or otherwise interfere with a seized thing without the approval of the chief executive officer of the Department.

Penalty for this subregulation: a fine of $1 000.

(5) In subregulation (4) —

seized thing means —

(a) a seized thing (as was defined in section 221 of the 2021 Act) that was seized before repeal day; or

(b) a thing seized in the exercise of powers under the CI Act by virtue of Division 2.

42. Dealing with, and forfeiture of, seized things

(1) Section 85 of the Act, and section 241 of the 2021 Act as it continues to apply under section 85 of the Act, apply with any necessary modifications in relation to things seized in the exercise of powers under the CI Act by virtue of Division 2 as those sections apply in relation to things seized before repeal day.

(2) In section 258(1) of the 2021 Act, as it continues to apply under section 84 of the Act, references to a seized thing include a thing seized in the exercise of powers under the CI Act by virtue of Division 2.

43. Dealing with seized Aboriginal objects

(1) This regulation applies to an Aboriginal object that is transferred into the custody of the Committee in accordance with —

(a) an order under section 84(5)(a) of the Act; or

(b) a direction under section 85(4)(a) of the Act.

(2) If the object is a secret or sacred object, section 63 of the 2021 Act applies in relation to the object as if the 2021 Act had not been repealed.

44. Application of Criminal and Found Property Disposal Act 2006

Section 86 of the Act, and section 259(1) of the 2021 Act as it continues to apply under section 86 of the Act, apply with any necessary modifications in relation to things seized in the exercise of powers under the CI Act by virtue of Division 2 as those sections apply in relation to things referred to in section 86(1)(a) of the Act.

Part 11 — Other matters

45. Revival of things that ceased to have effect before repeal day

(1) This regulation applies to anything that, before repeal day, ceased to have effect under the Act by virtue of the operation of sections 4A and 4B of the Act as in force before repeal day.

(2) On and after repeal day, the thing has the same effect under the Act as it would have had if sections 4A and 4B of the Act had never been inserted.

(3) This regulation does not apply to the following —

(a) a spent protected area order, as defined in section 73(1) of the Act;

(b) a consent under section 18 of the Act to which section 74(1) or (2) of the Act applies or a consent referred to in section 74(3) of the Act;

(c) an authorisation, approval or consent to which any of section 75(1) to (6) of the Act applies or an authorisation, approval or consent referred to in section 75(7) of the Act;

(d) a thing that, under Part 9 of the Act or another provision of these regulations, is stated to cease to have effect at the beginning of repeal day or to have no effect on and after repeal day.

Note for this subregulation:

The things listed in this subregulation include things that are excluded from the application of this regulation because their effect on and after repeal day is specifically dealt with in Part 9 of the Act or another provision of these regulations.

46. Things previously done by or in relation to Aboriginal Cultural Material Committee

(1) In this regulation —

former Committee means the Committee referred to in section 72(1) of the Act.

(2) Anything done by, or in relation to, the former Committee before repeal day is, to the extent necessary or convenient for the purpose of continuing its effect on and after repeal day (including by virtue of regulation 45(2)), taken to have been done by, or in relation to, the Committee.

Examples for this subregulation:

An opinion formed before repeal day by the former Committee for the purposes of section 5(c) of the Act.
The giving of a notice under section 18(2) of the Act to the former Committee before repeal day.

47. Disclosure of information under s. 303 of 2021 Act

Section 303(5) of the 2021 Act continues to apply on and after repeal day in relation to disclosures of information made before repeal day as if the 2021 Act had not been repealed.

48. Protection from liability for wrongdoing

Despite the repeal of the 2021 Act, section 305 of the 2021 Act continues to apply, on and after repeal day, in relation to the following —

(a) the performance or purported performance, before repeal day, of a function under the 2021 Act;

(b) the performance or purported performance, on or after repeal day, of a function under the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

49. Records of ACH Council

At the beginning of repeal day, the records of the ACH Council become the records of the Committee and, on and after repeal day, the Committee may hold, record, use or disclose the records for the purpose of, or in connection with, performing its functions.

50. Confidentiality

(1) A person must not, directly or indirectly, record, disclose or make use of any confidential information except —

(a) for the purpose of, or in connection with, performing a relevant function; or

(b) as required or allowed under a relevant provision; or

(d) with the written consent of the person to whom the information relates.

Penalty for this subregulation: a fine of $1 000.

(2) For the purposes of subregulation (1) —

(a) confidential information is information obtained by reason of a function that the person has, or at any time had, in the administration of —

(i) the 2021 Act as in force before repeal day; or

(ii) the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise;

and

(b) a relevant function is a function under —

(i) the Act; or

(ii) the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise;

and

(i) the Act or another written law; or

(ii) the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise;

and

(d) relevant legal proceedings are legal proceedings —

(i) arising under the Act; or

(ii) arising under the 2021 Act as in force before repeal day or as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

(3) Information relating to trade processes, financial information or culturally sensitive information that has been disclosed for a particular purpose under subregulation (1), or under section 306(1) of the 2021 Act before repeal day, must not be used for any other purpose by —

(a) the person to whom the information is disclosed; or

(b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.

Penalty for this subregulation: a fine of $1 000.

(4) In subregulation (3) —

culturally sensitive information has the meaning that was given in section 11 of the 2021 Act.

(5) Subregulation (1) does not extend to the recording, disclosure or use of —

(a) statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates; or

(b) information that is already in the public domain.

51. Use of information

(1) On and after repeal day, 2021 Act information may be held, recorded, disclosed or made use of in, or otherwise for the purposes of, the administration of the Act.

(2) In subregulation (1) —

2021 Act information means information —

(a) obtained before repeal day in, or otherwise for the purposes of, the administration of the 2021 Act; or

(b) obtained on or after repeal day in, or otherwise for the purposes of, the administration of the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

(3) On and after repeal day, 1972 Act information may be held, recorded, disclosed or made use of in, or otherwise for the purposes of, the administration of the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

(4) In subregulation (3) —

1972 Act information means information obtained before, on or after repeal day in, or otherwise for the purposes of, the administration of the Act.

52. References to Aboriginal Cultural Heritage Act 2021

If, on or after repeal day, a written law or document refers to the Aboriginal Cultural Heritage Act 2021 the reference is taken, if the context permits, to be a reference to the Aboriginal Heritage Act 1972.

53. Delegations by Minister

On and after repeal day, section 13 of the Act applies to any functions of the Minister under the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

54. Delegations by chief executive officer

(1) Subject to subregulation (2), the chief executive officer of the Department may delegate to an officer of the Department any functions of the chief executive officer under the 2021 Act as the 2021 Act continues to apply under Part 9 of the Act, these regulations or otherwise.

(2) The chief executive officer of the Department cannot delegate the function that the chief executive officer has under section 99(1) of the 2021 Act as that section continues to apply under regulation 13.

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Notes

This is a compilation of the Aboriginal Heritage (Transitional Provisions) Regulations 2023. For provisions that have come into operation see the compilation table.

Compilation table

Citation	Published	Commencement
Aboriginal Heritage (Transitional Provisions) Regulations 2023	SL 2023/167 1 Nov 2023	Pt. 1 (other than r. 4): 1 Nov 2023 (see r. 2(a)); r. 4 and Pt. 2‑11: 15 Nov 2023 (see r. 2(b) and SL 2023/161 cl. 2)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

1972 Act information 51(4)

2021 Act 4

2021 Act information 51(2)

Aboriginal ancestral remains 4

Aboriginal cultural heritage 29(7)

Aboriginal object 4

ACH Council 4

ACH Directory 34(1)

ACH management plan 4

ACH permit 4

authorised 29(4), (6)

authorised officer 35

CI Act 35

confidential information 50(2)

consented purpose 26(1)

culturally sensitive information 50(4)

due diligence assessment 29(7)

emergency activity 30(4)

endorsement or notation 12(1)

former Committee 46(1)

harm 29(7)

organisation 8(1)

original notification 25(2)

owner 4

prescribed public authority 10(1)

proponent 17

Registrar 12(1)

relevant authority 25(1)

relevant function 50(2)

relevant legal proceedings 50(2)

relevant provision 50(2)

remediation order 31(1)

repeal day 4

secret or sacred object 4

seized thing 41(5)

substantial commencement condition 29(2), (3), 30(2), (3)

transitioned consent 25(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Aboriginal Heritage Act 1972

Aboriginal Heritage (Transitional Provisions) Regulations 2023

Western Australia

Aboriginal Heritage (Transitional Provisions) Regulations 2023

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Purpose 1
Terms used 1

Part 2 — Local Aboriginal cultural heritage services

Recovery of fees by local Aboriginal cultural heritage service for services provided before repeal day 3
Refund of fees charged by local Aboriginal cultural heritage service before repeal day for services not provided 4

Part 3 — Remains and objects

Aboriginal ancestral remains transferred to Committee 5
Duty of organisations to return Aboriginal ancestral remains 5
Secret or sacred objects transferred to Committee 5
Duty of prescribed public authorities to return secret or sacred objects 6

Part 4 — Protected areas

Application for area to be declared as protected area 7
Endorsements and notations 7

Part 5 — Matters relating to offences under Part 5 of 2021 Act

Compensation for harm 8
Letter of advice may be used in evidence 9

Part 6 — Section 18 consents and other authorisations, approvals and consents

Division 1 — ACH permits

ACH permits transitioned as s. 18 consents 10
Applications for ACH permits transitioned as s. 18 notices 12

Division 2 — ACH management plans

Term used: proponent 13
Approvals of ACH management plans transitioned as s. 18 consents 13
Authorisations of ACH management plans transitioned as s. 18 consents 15
Applications for approval of ACH management plans transitioned as s. 18 notices 17

The Regulations rely on a small set of recurring legal concepts and mappings. These operate as the mechanics by which rights and obligations under the repealed 2021 Act are continued, modified or extinguished under the Act. Key concepts, and the legal mechanics associated with each, are:

Repeal day (r 4): the pivot. Many transitional rules take effect at the beginning of repeal day or treat that day as the date on which notices, transfers and other conversions occur. The definition explicitly ties repeal day to the commencement of s 3 of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023.
ACH permits, ACH management plans and s 18 consents/ notices (Part 6): the Regulations systematically convert ACH permits, approvals and authorisations under the 2021 Act into consents under s 18(3)(a) of the Act (e.g. r 15, r 18-19). Each conversion specifies: the land area that is the subject of the consent (mapped from specific subsections of the 2021 Act, e.g. r 15(2)(a)); the purpose/activity permitted (r 15(2)(b)); who is to be treated as an owner for the consent’s purpose (r 15(3), r 18(3) etc.); which 2021 Act conditions continue, which cease, and how reporting requirements are preserved as Ministerial conditions under s 18 of the Act (r 15(4)-(8); r 18(4)-(6)). This is a recurring pattern: conversion, mapping of scope, and treatment of conditions and reporting as conditions enforceable under s 18(3)(a).
Deemed ownership for consenting purposes (r 15(3), 16(3)(a), 18(3), 19(3)): persons who held ACH permits or were proponents/applicants immediately before repeal day are, for the purposes of the transitioned s 18 consent/notice, treated as owners of the land even if they are not the actual legal owner. That legal fiction allows consents to remain effective and enforceable under the Act’s s 18 scheme while preserving the identity of permit‑holders.
Preservation and cessation of duties and powers: the Regulations specify which duties under the 2021 Act continue after repeal day (for example, custody and treatment of remains/objects transferred to the Committee: rr 7 and 9 preserve s 55 and s 63 respectively) and which duties cease (organisations’ duties under s 57 to return remains, r 8(3); prescribed public authorities’ duties under s 65 to return objects, r 10(3); certain conditions under the 2021 Act cease, e.g. r 15(4), 18(4), 19(4), 22(4), 22(5)).
Evidence and offence continuity: determinations and compensation under s 99 of the 2021 Act continue in specific ways (r 13); section 104(5) of the 2021 Act (letter of advice admissibility) remains available in relevant proceedings (r 14); authorised officers are empowered to investigate pre‑repeal offences using powers under the CI Act (rr 36-37), with specific limits (for example, no authority to seize Aboriginal ancestral remains, r 39(1)).
Confidentiality and information use: the Regulations set confidentiality obligations on persons holding "confidential information" obtained through administration of either Act, restrict use to relevant functions or legal proceedings and criminalise improper use or misuse (r 50; penalties specified). They also create affirmative rules for transfer and use of 2021 Act and 1972 Act information for administration under either Act (r 51).
ACH Directory transfer (r 34): information and documents on the ACH Directory that are not subject to s 81 of the Act and that can be recorded in a register under s 38 must be transferred on repeal day. This is an explicit data‑migration mechanism.
Defences tied to substantial commencement and emergency activities (Part 7, rr 28-30): the Regulations replicate key 2021 Act defences for a one‑year post‑repeal window, defining substantial commencement and treating due diligence assessments by reference to the ACH Management Code as it stood immediately before repeal day (r 29(5) and r 29(8)).
Enforcement and custody rules for seized items (Part 10, Div 3): the security of seized things (r 41), dealing with and forfeiture (r 42), and specific treatment for Aboriginal objects transferred to the Committee (r 43) are all maintained, with cross‑references to relevant Parts and Acts (including CI Act and the Criminal and Found Property Disposal Act 2006, r 44).

These concepts operate in concert: they provide legal continuity for rights (consents, permits), obligations (reporting, remediation), enforcement (authorised officers, seized items, evidence), and data/records management (ACH Directory transfer, confidentiality). Each mapped rule is explicit as to which parts of the 2021 Act continue to apply "as if the 2021 Act had not been repealed" (for example, rr 7(2), 9(2), 13(2), 31(2)). The instrument therefore functions as a detailed instruction set converting the pre‑repeal statutory environment into the post‑repeal legal framework while identifying discrete exceptions and expiries.

The Regulations touch a broad set of parties. The primary actors, and how the Regulations affect them, are:

Holders of ACH permits, proponents of ACH management plans, and applicants under the 2021 Act: these persons have their permits, approvals, authorisations or applications converted into consents or notices under s 18 of the Act (Part 6, Divs 1-3, notably rr 15-21). They are deemed "owners" for consent purposes (e.g. r 15(3), r 18(3)), which changes the legal status for consent compliance and enforcement even if their underlying property title does not change.
Owners of land, including persons who are not actual owners but are treated as owners under the transitional rules: persons who had submitted notices or applications under the 2021 Act are treated as owners for s 18 consent mechanics (e.g. r 16(3)(a), r 20(3)(a)). This affects who must comply with consent conditions and who can be held responsible for contraventions.
Local Aboriginal cultural heritage services designated under s 37(1) of the 2021 Act: these services can recover unpaid fees charged before repeal day as debts (r 5(2)); where fees were paid but services not provided before repeal day, those services must refund within 14 days after repeal day (r 6).
Organisations and prescribed public authorities that were in possession of Aboriginal ancestral remains or secret or sacred objects immediately before repeal day: where remains or objects were transferred into the Committee’s custody (under s 82(3) or s 83(3) of the Act) specific 2021 Act provisions continue to govern those remains/objects (rr 7-9). However, duties to return remains or objects imposed on organisations or prescribed public authorities by ss 57 and 65 of the 2021 Act cease at the beginning of repeal day (rr 8(3), 10(3)).
The Committee and ACH Council: the Regulations treat prior acts of the former Committee and the ACH Council as having continuing effect (r 46) and explicitly map references to ACH Council into Committee references (for reporting requirements and conditions, e.g. r 15(5)(b)(i), r 18(5)(b)(i)). The records of the ACH Council become the Committee’s records at the beginning of repeal day (r 49).
The Department, its chief executive officer and authorised officers: the chief executive may authorise departmental officers as authorised officers to investigate offences under the 2021 Act committed before repeal day, with CI Act powers prescribed (rr 36-37). The chief executive is also accountable for certain payments: compensation payable under s 99 determinations is payable by the chief executive officer of the Department (r 13(4)), and the chief executive officer’s functions may be delegated to officers subject to limits (r 54).
The Minister and the Registrar: the Minister retains delegation capacity for functions under the 2021 Act as it continues to apply (r 53). The Registrar must remove endorsements or notations made under the 2021 Act on titles and make consequential amendments (r 12(3)).
Persons subject to remediation orders and persons directed to carry out remediation: authorisations under s 197(1) of the 2021 Act continue (r 31(2)), authorisations may be given for contraventions that occurred before repeal day (r 31(4)), and recovery mechanisms for remediation costs survive with the Minister able to commence proceedings (r 32).
Persons charged with offences under the Act or specified regulations: the Regulations create or preserve defences for specified offences where activities were substantially commenced or were emergency activities and were carried out within one year from repeal day (Part 7, rr 28-30). Evidentiary rules, such as the use of letters of advice (r 14), also affect prosecution/defence strategy.
Users or custodians of ACH Directory information: documents and information on the ACH Directory must be migrated to a register under s 38 of the Act where they are transferable (r 34). Confidentiality rules (r 50) apply to information obtained under administration of either Act and limit secondary uses (r 51 provides permitted uses in administration).

The Regulations therefore reassign legal roles, extend or limit duties, and reallocate compliance responsibilities. Practically, persons who had regulatory relationships with the 2021 Act , developers, landowners, local cultural heritage bodies, government agencies and the Department , will face new compliance framings, such as being treated as an "owner" for consent compliance, continuing reporting requirements converted into s 18 conditions, and a one‑year window for particular defences. The Department and Minister are positioned to make delegations, authorise officers with CI Act powers for investigations and manage records and registers that will carry forward the 2021 Act material.

The Regulations create, preserve or extinguish specific duties and rights. The principal statutory responsibilities and entitlements are:

Recovery and refund duties (rr 5-6): local Aboriginal cultural heritage services designated before repeal day may recover unpaid fees charged under s 49 of the 2021 Act as a debt in court (r 5(2)). Conversely, if fees were paid but services were not provided before repeal day, the designated person must refund the whole or the attributable part of the fee within 14 days after repeal day (r 6(2)). Failure to refund enables the payor to recover the unrefunded amount as a debt (r 6(4)).
Custody and retention of remains and objects (rr 7-10): ancestral remains and secret or sacred objects transferred to the Committee remain subject to specified 2021 Act provisions after repeal day (r 7(2) continuing s 55; r 9(2) continuing s 63). Conversely, duties of organisations under s 57 and prescribed public authorities under s 65 to return remains/objects cease at the beginning of repeal day (rr 8(3), 10(3)).
Title endorsements and protected area applications: pending applications under ss 72(1) or 83(1) of the 2021 Act are terminated at the beginning of repeal day and cease to have effect (r 11(2)), though s 73 of the Act is preserved (r 11(3)). Endorsements or notations under the 2021 Act may not be made on or after repeal day (r 12(2)); existing endorsements must be removed by the Registrar with necessary title amendments (r 12(3)).
Continuation of compensation and evidence regimes (Part 5): determinations under s 99(3) of the 2021 Act remain enforceable and compensation payable (r 13(1)); s 99 continues to apply for offences committed before repeal day where no determination was made before repeal day (r 13(2)). Letters of advice admissibility under s 104(5) of the 2021 Act may be used in evidence in proceedings continued or commenced under s 84(1) of the Act (r 14).
Conversion of ACH permits and management plans to s 18 consents and notices (Part 6): ACH permits that become s 18 consents are mapped by land area and permitted activity (r 15(2)), and holders are treated as owners for consent purposes (r 15(3)). Reporting requirements in ACH permits/management plans become conditions enforceable under s 18(3)(a) of the Act, with references to the ACH Council read as references to the Committee (r 15(5); r 18(5); r 19(5)). Certain conditions under the 2021 Act lose effect (for instance, specific sections listed at r 15(4), r 18(4), r 19(4), r 22(4)-(5)).
Duration of consents: for transitioned ACH permits converted to consents, the consent expires at the end of the period of 4 years after the effective date of the permit/consent (r 15(11)), a temporal rule modelled on s 121(b) of the 2021 Act.
Defences to charges (Part 7): for offences under s 17 of the Act and specified regulations, the Regulations provide that the defined defences (based on s 96 and s 98(a)/(d) of the 2021 Act) are available for acts done during the one‑year period beginning on repeal day, subject to the substantial commencement condition (r 29(1)-(3); r 30(1)-(3)). The defences require that activities were authorised under the 2021 Act before repeal day or meet due diligence or emergency definitions as specified (r 29(4)-(8)).
Remediation authorisations and cost recovery (Part 8): authorisations given under s 197(1) of the 2021 Act continue (r 31(2)); for contraventions before repeal day where no authorisation was given then, s 197(1) continues to apply and an authorisation may be given on or after repeal day (r 31(4)). Section 197(2) cost recovery and the Minister’s capacity to commence proceedings are preserved (r 32).
Enforcement and investigatory powers (Part 10): departmental authorised officers (as appointed by the chief executive) may investigate offences under the 2021 Act committed before repeal day (r 36(2)). They are treated as public officers for CI Act purposes (r 37), and the Regulations prescribe substantial CI Act powers for those officers (r 37(2)). However, the Regulations explicitly prohibit seizure of Aboriginal ancestral remains as an authorised power (r 39(1)) and impose constraints on forensic examination (r 40).
Security of seized things and tampering penalties (r 41): section 240(1) of the 2021 Act continues to apply to seized things; a person must not move, tamper with or otherwise interfere with a seized thing without chief executive approval (r 41(4)) , penalty $1 000.
Confidentiality and restricted use of information (r 50-51): persons must not record, disclose or use confidential information unless for a relevant function, required/allowed by a relevant provision, for legal proceedings, or with written consent (r 50(1)). A separate prohibition prevents use of disclosed trade, financial or culturally sensitive information for other purposes (r 50(3)) , penalty $1 000. The Regulations also provide that 2021 Act information and 1972 Act information can be used for administration of either Act where consistent with the rules in r 51.
Delegations and administrative actions (rr 52-54): references to the 2021 Act in documents may be read as references to the 1972 Act where context permits (r 52); the Minister and chief executive officer retain and may exercise delegation powers for functions continued under the Regulations (rr 53-54), subject to specified non‑delegable functions (r 54(2)).

These duties and rights redistribute obligations from the 2021 Act to the Act, the Department and the Committee. They specify who is liable to comply, who is entitled to compensation or authorisation, and how investigatory and enforcement functions will operate after repeal day.

The Regulations set out an enforcement architecture that combines civil recovery, criminal penalty provisions retained elsewhere, administrative authorisations for investigations and limited direct monetary fines in the instrument itself. Enforcement mechanics and specific penalties are:

Criminal investigation powers through the CI Act (Part 10, Divs 1-2): the chief executive may authorise officers of the Department as authorised officers to investigate offences under the 2021 Act committed before repeal day (r 36(1)-(2)). By r 37, for CI Act purposes these authorised officers are treated as public officers and prescribed powers from the CI Act are taken to be prescribed in respect of that office. The Regulations list the CI Act Parts and sections whose powers apply (r 37(2)(b)(i)-(viii)), thereby enabling search, seizure (subject to limits), evidence collection and related investigatory powers for pre‑repeal offences.
Limits on seizure and treatment of remains and objects: the Regulations explicitly disallow seizure of Aboriginal ancestral remains by authorised officers (r 39(1)). Section 242 of the 2021 Act (continued application for investigative purposes) applies with modifications (r 39(2)-(3)), and section 63 of the 2021 Act governing secret or sacred objects continues if objects are transferred into Committee custody (r 43(2)). For forensic examinations under s 21 of the CI Act, authorised officers must not dismantle, damage or destroy Aboriginal objects (r 40).
Security of seized things and penalties for tampering: section 240(1) of the 2021 Act continues to apply to things seized before repeal day and to things seized under the CI Act by authorised officers (r 41(1)-(2)). A person must not move, tamper or interfere with a seized thing without chief executive approval; the penalty for contravention is a fine of $1 000 (r 41(4)).
Confidentiality penalties: improperly recording, disclosing or using confidential information is a punishable offence with a fine of $1 000 (r 50(1)). Additionally, unauthorised secondary use of trade, financial or culturally sensitive information disclosed for a particular purpose is separately penalised with a fine of $1 000 (r 50(3)).
Remediation and cost recovery enforcement: authorisations to carry out remediation given under s 197(1) of the 2021 Act continue to be available (r 31(2)-(4)), and section 197(2) cost recovery continues to apply (r 32). The Minister may commence or continue proceedings under s 197(2) to recover costs (r 32(2)). Section 199 (recovery of compliance costs by a person given a remediation order) continues (r 33(1)).
Compensation for harm: determinations under s 99(3) of the 2021 Act continue to give rise to compensation payable on and after repeal day (r 13(1)), and where s 99 applies for offences committed before repeal day but without a prior determination, the CEO of the Department, the Minister and the Committee have defined roles as substitutes for the 2021 Act offices (r 13(3)). Compensation payable under such determinations is payable by the chief executive officer of the Department (r 13(4)). The maximum compensation set under a determination made by virtue of r 13(2) is capped at the amount of any fine imposed for the offence (r 13(5)).
Evidentiary preservation: the Regulations preserve particular evidentiary mechanisms from the 2021 Act, such as letters of advice admissible under s 104(5) (r 14), and provide for continuation of proceedings for offences under Part 5 Division 2 of the 2021 Act (r 14).
Forfeiture and disposal: provisions for dealing with seized things (s 85 of the Act and s 241 of the 2021 Act) and for applying the Criminal and Found Property Disposal Act 2006 are continued and applied as necessary to things seized by authorised officers under CI Act powers (rr 42-44). The Regulations therefore preserve forfeiture and disposal pathways.

Enforcement is therefore a mixture of administrative enforcement (chief executive decisions, authorisations, remediation orders), civil recovery (debt recovery for unpaid fees, cost recovery under s 197 and s 199), criminal penalties under the Act and associated regulations (preserved and applied as relevant) and limited monetary fines embedded in the transitional instrument for tampering and confidentiality breaches ($1 000 each as specified). The instrument centralises investigatory responsibility in authorised departmental officers operating under CI Act powers but imposes explicit limits concerning the seizure and treatment of ancestral remains.

The Regulations are explicitly integrative and cross‑reference multiple statutory instruments. The principal interactions are as follows:

The Act and the 2021 Act: the Regulations are a transition bridge between the Aboriginal Cultural Heritage Act 2021 and the Aboriginal Heritage Act 1972. They frequently apply 2021 Act provisions "as if the 2021 Act had not been repealed" for specific categories of matters, creating continuity for certain rights, liabilities and processes (see multiple examples: rr 7(2), 9(2), 13(2), 31(2), 32(1)). Regulation 52 provides that references to the 2021 Act in written laws or documents may be read as references to the 1972 Act where context permits.
Aboriginal Heritage Regulations 1974 and Aboriginal Cultural Heritage Regulations 2022: the Regulations refer directly to the existing regulations. For instance, notices converted into s 18 notices are treated as if the Aboriginal Heritage Regulations 1974 reg 14(2)-(7) applied (r 16(2)(c), r 20(2)(c), r 21(2)(c)). Also references to the ACH Directory and approved ACH management plans in the Aboriginal Cultural Heritage Regulations 2022 Schedule 1 are preserved for the purposes of certain defences (r 29(5)).
Criminal Investigation Act 2006 (CI Act): the Regulations make authorised officers public officers for the purposes of the CI Act and prescribe CI Act powers that apply to them (rr 36-37). The Regulations also adapt the 2021 Act’s investigative provisions to operate alongside the CI Act (r 38-39), directing that references to an inspector in the 2021 Act are to be read as references to an authorised officer when investigating pre‑repeal offences.
Criminal and Found Property Disposal Act 2006: the Regulations apply the disposal regime to things seized under CI Act powers by authorised officers where necessary (r 44), using s 86 of the Act and s 259(1) of the 2021 Act as continued.
Land registry and title legislation via Registrar actions: the Regulations require removal of endorsements or notations made under the 2021 Act and consequential amendments to certificates of title or other registers (r 12(3)). This interacts with land title registers and the Registrar’s statutory functions.
Remediation and compensation regimes: the Regulations continue s 197 (authorisations and cost recovery) and s 199 (recovery of compliance costs) and preserve s 99 determinations for compensation. The Minister and CEO are given procedural authority to act under these provisions (rr 31-33, 13).
Data and confidentiality laws: while the Regulations set confidentiality obligations specific to information obtained under the Acts (r 50), they also provide express permissions for the use of 2021 Act information and 1972 Act information for administration of each Act (r 51). The ACH Directory migration (r 34) requires data transfer to the register under s 38 of the Act, implicating recordkeeping, privacy and data integrity obligations.
Delegation and administrative law frameworks: the Regulations preserve delegation abilities under the Act (r 53 for Minister delegations under s 13 of the Act; r 54 for CEO delegations), but limit delegation of the chief executive’s s 99(1) function (r 54(2)). Those provisions interact with general administrative law principles (delegation, exercise of statutory power) and departmental governance frameworks.

These interactions are largely preservationist: the Regulations do not create a new statutory regime but instead map, continue or suspend aspects of the 2021 Act into the Act and existing statutes. Where powers of other statutes are used (for example CI Act investigatory powers or property disposal laws), the Regulations specify necessary modifications and exclusions (for example, limits on seizure of ancestral remains, r 39(1)). The instrument therefore functions as a statutory conversion kit for multiple interlocking laws.

The instrument itself is a 2023 regulation and its compilation table records publication and commencement particulars. Key compilation facts are:

Citation and publication: Aboriginal Heritage (Transitional Provisions) Regulations 2023, SL 2023/167 (r 1 and compilation table).
Commencement staging (r 2): Part 1 (except reg 4) commenced on publication on the WA legislation website, 1 November 2023 per the compilation table; reg 4 and Parts 2-11 commenced on the day s 3 of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 came into operation, recorded as 15 November 2023 in the compilation table.
Purpose clause (r 3) declares the Regulations are made for s 71(2) of the Act, evidencing their transitional purpose.
The Regulations are presented as a complete transitional package; the instrument’s text itself contains numerous “continuation” provisions that make specified sections of the 2021 Act continue to have effect in defined situations. These are not amendments to the 2021 Act but transitional continuations effected by regulation under the Act.
There are no amendment entries or subsequent variation clauses within the instrument. The compilation table at the end of the instrument is the formal record of the version and commencement dates. The instrument includes defined terms and a list of defined terms (the "Defined terms" appendix) and a Notes section that identifies the compilation status and commencement details.
The Regulations also implement time‑limited measures: defences under Part 7 apply for acts done within the period of one year beginning on repeal day (rr 29(1), 30(1)), and some transitioned consents have a specified expiry period (for example ACH permits transitioned to s 18 consents expire at the end of the period of 4 years after taking effect, r 15(11)). Those temporal rules are part of the substantive transitional architecture rather than later amendments.

Because the Regulations operate as transitional preservation, their “amendment history” is essentially their publication and staged commencement dates and the internal conversion mappings they implement. The Regulations do not include subsequent amending schedules or tracked amendments within the compiled text provided here. Any future changes to these transitional provisions would appear as subsequent regulations or amendments filed against SL 2023/167 and recorded in the WA legislation compilation records.

The Regulations themselves do not refer to any judicial decisions or litigation. The instrument names no cases and makes no express reference to court decisions. The only court‑facing procedural content is to facilitate litigation and enforcement that may arise, for example:

recovery of unpaid fees or unrefunded fees as a debt in a court of competent jurisdiction (rr 5(2), 6(4));
enforcement and continuation of proceedings for offences committed before repeal day under the Act and 2021 Act provisions continued by the Regulations (see r 14, r 13, and r 36(2) referencing investigatory powers for offences to which s 84(1) of the Act applies);
provisions for dealing with seized things and forfeiture that preserve existing court‑facing disposal and forfeiture processes (rr 41-44, including cross‑references to the Criminal and Found Property Disposal Act 2006).

Because the Regulations preserve evidentiary rules (r 14) and create statutory defences (Part 7) that will be relevant in prosecutions, litigation arising from offences committed before or during the transitional periods is contemplated, yet the instrument contains no adjudicated cases or judicial interpretation guidance. Practitioners should expect litigation to arise under the preserved and continued provisions , for example, in disputes over whether an activity was "substantially commenced" before repeal day (Part 7) or whether reporting requirements and conditions converted under Part 6 apply in a given form , but the Regulations themselves do not provide case law.

If users require authoritative judicial interpretations of the transitional measures, they will need to monitor subsequent litigation and rulings in courts or tribunals that address these Regulations and the manner in which the 2021 Act provisions have been continued or modified.

Several concrete traps and practical surprises are embedded in the transitional machinery. These "gotchas" arise from legal fictions, time limits, the mapping of conditions, and the tightness of some remedies:

Deemed ownership for consenting purposes irrespective of actual title (r 15(3), r 16(3)(a), r 18(3), r 19(3)): permit‑holders, applicants and proponents are for transitional purposes treated as "owners" of land the subject of consents and notices, whether or not they are actual legal owners. This transfers legal responsibility for compliance with consent conditions and may expose non‑owners to obligations and enforcement actions that are commonly associated with titleholders.
Reporting requirements converted into Ministerial conditions (r 15(5), r 18(5), r 19(5)): where ACH permits or management plans included reporting obligations, those reporting requirements are converted into conditions under s 18(3)(a) of the Act. They are therefore enforceable as conditions imposed by the Minister and can be amended under s 18(6A), 18A(9) or 18B(3) (r 15(8)). Holders need to check the precise wording of reporting obligations post‑conversion and be alert to the Minister’s power to amend those conditions.
Automatic expiry and duration effects: ACH permits transitioned to consents expire four years from their effective date (r 15(11)), a fixed period derived from s 121(b) of the 2021 Act. Practitioners must not assume indefinite continuity; some consents will lapse and require fresh application pathways under the Act.
Termination of pending protected‑area applications (r 11(2)): any application under ss 72(1) or 83(1) of the 2021 Act that was on foot immediately before repeal day is terminated at repeal day. Stakeholders should not expect previously pending protected‑area applications to survive unless saved by some separate provision; r 11(3) preserves the operation of s 73 but termination is otherwise automatic.
Certain conditions cease to have effect (r 15(4), r 18(4), r 19(4), r 22(4)-(5)): some 2021 Act conditions are expressly nullified on repeal day. For example, section 128(1) conditions under the 2021 Act for ACH permits have no effect after repeal day (r 15(4)), subject to reporting condition carve‑ins. Rights or obligations that practitioners assume will survive may, in fact, cease.
One‑year limited defences (Part 7): the defences that mirror s 96 and s 98 of the 2021 Act apply only for acts done during the 12 months beginning on repeal day (r 29(1), r 30(1)). Activities commencing after this window lose the benefit of those transitional defences. Moreover, the "substantial commencement" test requires fact‑specific proof (r 29(2)-(3)).
Due diligence assessments must follow the ACH Management Code as it stood immediately before repeal day (r 29(5)(a)(iii), r 29(8)(a)): parties relying on post‑repeal due diligence must ensure assessments conform to the pre‑repeal Code, not any amended or replacement code.
Refund timing is tight (r 6(2)): designated local services must refund paid but unrendered services within 14 days after repeal day. Failure to do so exposes them to debt recovery.
Small pecuniary penalties within the Regulations may be low deterrents: the fines for tampering with seized things and for confidentiality breaches are set at $1 000 (rr 41(4), 50(1), 50(3)). Those amounts may be modest relative to the potential value or sensitivity of cultural materials and data.
Data migration obligations and exclusions (r 34): the ACH Directory transfer is subject to exclusions (r 34(2)(a) and (b)): information to which s 81 of the Act applies or information not capable of being recorded in a s 38 register is excluded. Records owners must ensure correct categorisation and technical compatibility for register recording.
Delegation limits on CEO functions (r 54(2)): the chief executive officer may delegate many functions under the 2021 Act as continued, but the CEO cannot delegate the function under s 99(1) of the 2021 Act as it continues to apply (r 54(2)). This non‑delegable status concentrates accountability for s 99 decisions.
Disappearance of endorsements or notations (r 12): land titles with endorsements or notations made under the 2021 Act will be altered on repeal day,the Registrar must remove them and make consequential amendments. Titleholders and their advisers must check for unexpected changes in title records.
Conflicted duties of former bodies: prior functions of the ACH Council and former Committee are transferred to the Committee (r 46), and ACH Council records become Committee records (r 49). Parties that relied on ACH Council processes must map their interactions to the Committee’s processes.

Each of these is a concrete legal effect, grounded in the cited regulations. The practical consequence is that clients, applicants and regulatory bodies must audit all outstanding permits, applications, notices, reporting obligations, data holdings and remediation orders against the transitional rules to identify exposures, time limits and changed addressees of duties.

Practical compliance requires a set of discrete actions tied to the transitional mappings in the Regulations. The following checklist maps key steps to the corresponding regulatory provisions:

Audit permits, applications and ACH management plans: identify any ACH permits, approvals, authorisations, or applications under the 2021 Act that were in effect or on foot immediately before repeal day (Part 6). For each, record the land area and carrying‑out activity as detailed immediately before repeal day (see r 15(2)(a)-(b), r 18(2)(a)-(b), r 19(2)(a)-(b), r 20(2)(a)-(b), r 21(2)(a)-(b)). Determine whether the ACH permit or plan took effect before repeal day; if not, identify the date the consent will take effect under the transitional rules (r 15(10), r 18(8), r 19(10)).
Verify owner status and responsibilities: if you are a permit holder, applicant or proponent, note that you are treated as the "owner" for consent purposes (r 15(3), r 16(3)(a), r 18(3), r 19(3)). Assess compliance obligations (conditions, reporting) and amend governance and contracts as necessary to reflect this legal fiction.
Review consent conditions and reporting requirements: extract any reporting requirements from ACH permits and ACH management plans that were specified immediately before repeal day. These reporting requirements become enforceable conditions under s 18(3)(a) of the Act and may be amended under s 18 amendment powers (r 15(5)-(8); r 18(5)-(6); r 19(5)-(8)). Prepare to submit required reports and preserve records of submissions.
Check temporal limits and plan renewals: for consents transitioned from ACH permits, note the 4‑year expiry rule (r 15(11)). Plan for renewal, fresh application or alternative compliance strategies ahead of expiry.
Refund and debt compliance for local cultural heritage services: if you are a designated local service with unpaid fees charged under s 49 of the 2021 Act, you may pursue the unpaid amount as a debt in court after repeal day (r 5(2)). If you collected fees but did not supply all services before repeal day, ensure refunds are issued within 14 days after repeal day (r 6(2)). Maintain precise service delivery records and payment ledgers to support claims or refunds.
Custody and handling of ancestral remains and secret/sacred objects: if remains or objects were transferred to the Committee before repeal day, the 2021 Act provisions continue to apply to those items (rr 7(2), 9(2)). If you are an organisation or prescribed public authority that had been in possession of such items but did not transfer them, note that duties to return cease at the beginning of repeal day (rr 8(3), 10(3)), so confirm custody and compliance actions taken before repeal day.
Handle pending protected‑area applications and title notations: if you have protected‑area applications that were on foot under ss 72(1) or 83(1), the application is terminated on repeal day (r 11(2)); consult the Act and Committee processes regarding whether new applications are available under the Act. For land with endorsements/notations, check with the Registrar about removal and any title changes (r 12).
Prepare for investigations of pre‑repeal offences: if subject to an investigation for offences committed before repeal day, expect departmental authorised officers to investigate using CI Act powers (rr 36-37). Ensure preservation of evidence, restrict disclosure of confidential information consistent with r 50, and engage counsel where necessary. Note explicitly that authorised officers cannot seize Aboriginal ancestral remains (r 39(1)) and forensic examiners must not dismantle, damage or destroy Aboriginal objects (r 40).
Maintain confidentiality and restrict secondary use: if you hold confidential information obtained under the 2021 Act or the Act, do not record, disclose or use it except as permitted by r 50(1). Do not repurpose disclosed trade, financial or culturally sensitive information for unrelated purposes (r 50(3)). Implement access controls, audit trails and written consents where appropriate.
Migrate ACH Directory information: if you hold ACH Directory information that is transferable under r 34(3), ensure it is recorded in a register maintained under s 38 of the Act on repeal day. Confirm with the Department which items are excluded under r 34(2)(a)-(b) (information to which s 81 of the Act applies or cannot be recorded in the register).
For remediation orders and cost recovery: if you are a person subject to remediation authorisation (s 197(1)) or have incurred remediation costs before repeal day, check whether the authorisation continues (r 31(2)) and whether cost recovery options remain available (r 32). If you are the Minister or Department, be prepared to commence or continue proceedings to recover costs (r 32(2)).
Evidence and letters of advice: preserve letters of advice and related documentation because section 104(5) of the 2021 Act (continued by r 14) may be used in evidence in proceedings relating to offences under Part 5 Division 2.
Time‑sensitive defences: if relying on the transitional defences in Part 7 (substantial commencement, emergency activities), collect contemporaneous project records demonstrating substantial commencement before repeal day and any due diligence assessments prepared in accordance with the ACH Management Code as it stood immediately before repeal day (r 29(5)(a)(iii), r 29(8)).
Delegation and decision‑making: government decision‑makers should confirm necessary delegations and non‑delegable functions. The Minister may delegate functions (r 53); the chief executive may delegate many functions but not the s 99(1) function (r 54(2)). Ensure governance documents reflect these limits.

These steps are concrete measures drawn directly from the Regulations. Compliance requires both a legal audit (to map each instrument or obligation captured by the transitional rules) and operational actions (record transfers, refunds, reporting, data migration, confidentiality controls, evidence preservation). Timeframes in the Regulations (for example, 14 days for refunds, one year for defences, four years for consent expiry) make scheduling essential.

Deep Dive

What it does

Current sections