Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018

The Act directly affects four categories of persons and entities. First, anyone who held a permit or was subject to a declaration under the Historic Shipwrecks Act 1976, including holders of exploration or recovery permits (section 15), persons who gave notices about possession of articles (section 9), persons who received notices about location of articles (section 10), and persons who received directions about custody of articles (section 11). Their rights and obligations are automatically carried into the new Act, but with potentially different terms: the permit is non transferable, and the Minister gains new powers to vary, suspend or revoke permits under sections 25 and 26 of the new Act. Second, applicants who had a pending permit application under the old Act at commencement: their application is deemed refused (item 9), forcing them to reapply under the new Act, which may have different criteria, fees and conditions. Third, officers and employees of the Commonwealth, particularly the Minister and departmental officials, who must manage the transitioned register, issue new permits, and handle the transitioned notices and directions. The Minister may make changes to the register (item 11(2)) and has powers to vary or revoke permits. Fourth, the maritime industry: the consequential amendments affect ship operators under the Navigation Act (the definition of “historic wreck” now cross references the new Act), operators of sea installations (the definition of “excluded wreckage” replaces “excluded wreck”), and entities dealing with the Protection of the Sea Act (a savings provision prevents the new Act from affecting intervention powers). The Australian Heritage Council Act amendment changes the terminology in its functions, but does not impose direct obligations. The costs fall disproportionately on those who relied on the old Act: they must familiarise themselves with the new Act’s provisions, determine whether their permits have been varied by the transition, and comply with any new conditions or reporting requirements. Permit holders also face uncertainty: the new Act gives the Minister broader powers to impose conditions and to suspend or revoke permits. The deemed refusal of pending applications (item 9) imposes a direct cost on those who had invested time and resources in applications that are now void.

The Act creates few substantive duties of its own; most duties flow from the new Act. However, the transitional provisions impose specific obligations. Under item 6, a person who had given a notice under section 9 of the old Act (about possession of an article) is now deemed to hold a permit under section 23 of the new Act with conditions including that it is non transferable and that the permit number is the unique identifier from the old Register. The person must comply with the new Act’s provisions, including the power of the Minister to vary, suspend or revoke the permit under sections 25 and 26. Under item 7, a person who had received a notice under section 10(1) of the old Act (about location of articles) must comply with that notice as if it were given under section 38(2) of the new Act. If the original compliance period was less than 21 days, it is automatically extended to 21 days from the date the notice was given. This is a direct obligation that may require the person to provide information or take action. The Minister has the right to give a notice under section 38 of the new Act regardless of when the person obtained possession of the article (item 7(4)). Similarly, under item 8, a person subject to a direction under section 11(1) of the old Act remains subject to that direction as if given under section 39(1) of the new Act, and the Minister may give new directions regardless of when possession began. Holders of transitioned permits under item 10 have the right to continue the authorised conduct until the permit would have expired, but they also bear the risk that the Minister may impose additional conditions or revoke the permit. The register continuation (item 11) preserves the public record but gives the Minister the right to make changes to the register as considered appropriate. This is a unilateral power that could affect the status of listed items without the holder’s consent. The evidentiary certificate savings (item 12) ensures that certificates issued under the old Act remain admissible and effective. Overall, the Act imposes few new duties but preserves existing ones while shifting the legal basis and granting the Minister additional discretion. The cost of monitoring these changes falls on the affected persons, particularly those with multiple permits or articles.

The Act itself creates no new penalties or enforcement powers. It is a transitional instrument; penalties and enforcement are found in the Underwater Cultural Heritage Act 2018. However, the transitional provisions have indirect enforcement effects. If a person fails to comply with a transitioned notice (item 7) or direction (item 8), they are now subject to the penalty provisions in the new Act (sections 38 and 39) rather than the old Act. The new Act may have different penalty amounts, defences and procedures. The deemed refusal of pending applications (item 9) is a form of administrative penalty: the applicant loses any pending rights and must start again, incurring time and cost. The Minister’s power to vary or revoke permits (item 6(3)(d)(i) and (ii)) is a compliance tool: non compliance with the new Act can lead to revocation, which would make continued possession or activity unlawful and expose the person to penalties under the new Act. The non transferability condition (item 6(3)(e)) is an enforced restriction on property rights; a breach (attempting to transfer) may have consequences under the new Act. The continuation of the register (item 11) does not by itself carry penalties, but incorrect entries or failure to update information could create liability. The savings for evidentiary certificates (item 12) means that certificates from the old Act can be used in proceedings under the new Act, which may reduce evidentiary costs for the prosecution but also for defendants who can rely on them. The Protection of the Sea Act amendment (item 4) ensures that the new Act does not override intervention powers, so enforcement actions under that Act are unaffected. The Sea Installations Act amendments (items 5-7) exclude certain wrecks from the definition of “sea installation”, which has enforcement implications for offshore infrastructure. In summary, the Act shifts enforcement from the old Act’s framework to the new Act, with potentially different penalty scales, defences and procedures. Persons subject to transitioned obligations should review the new Act’s penalty provisions to assess their exposure.

The Act makes four specific consequential amendments. The Australian Heritage Council Act 2003 is amended by substituting “underwater cultural heritage” for “historic shipwrecks” in subparagraph 5(d)(v). This is purely terminological: it ensures the Council’s functions refer to the new Act’s terminology. The Navigation Act 2012 definition of “historic wreck” is repealed and replaced with a cross reference to the new Act: it now means remains or articles covered by section 16(1)(a) or (b) of the Underwater Cultural Heritage Act 2018, or declarations under sections 17 or 19 of that Act. This ensures that the Navigation Act’s provisions dealing with historic wrecks (such as obligations on ship operators) align with the new Act. The Protection of the Sea (Powers of Intervention) Act 1981 subsection 5(2) is repealed and replaced with a provision stating that the Underwater Cultural Heritage Act 2018 does not affect the operation of that Act. This is a savings provision that prevents any argument that the new Act impliedly limits the Commonwealth’s intervention powers at sea. The Sea Installations Act 1987 is amended by repealing the definition of “excluded wreck” and inserting a definition of “excluded wreckage” that cross references the new Act’s sections 16, 17, 18 and 19, as well as a wreck described in paragraph 238(1)(b) of the Navigation Act. This ensures that certain underwater cultural heritage items are excluded from the definition of “sea installation” in that Act, which affects regulatory requirements for offshore structures. In addition to these direct amendments, the Act interacts with the old Historic Shipwrecks Act 1976 by repealing it entirely (Schedule 1, Part 1). This removes a layer of legislation, reducing the total statute book. However, transitional provisions in Schedule 2 ensure that rights and obligations under the old Act continue under the new Act, so there is no gap. The Act also interacts with the new Underwater Cultural Heritage Act 2018 by being the vehicle that enables its commencement: the schedules commence at the same time as section 3 of the new Act. The transitional provisions in Schedule 2 are directly tied to definitions in the new Act (item 1(2)). The Act does not interact with state or territory laws, nor with international agreements, except indirectly through the new Act. Practitioners need to be aware that the old Act is no longer in force, and that all references to it in other instruments or contracts should be reviewed.

The Act has no amendment history of its own. It is an original enactment that received Royal Assent on 24 August 2018 and commenced on 1 July 2019 (sections 1 and 2, plus the commencement table). It has not been amended by any subsequent Act. The source text does not disclose any amending legislation, and none should be assumed. The Act’s provisions are therefore as originally enacted. However, the transitional provisions in Schedule 2 are designed to be temporary: they operate from the commencement day onward and will cease to have practical effect once all rights and obligations are fully transitioned. The deemed refusal of pending applications (item 9) is a one time event on commencement. The continuation of permits (item 10) means those permits will expire according to their original terms unless revoked earlier. The register continuation (item 11) is indefinite, but the Minister may make changes. The evidentiary certificate savings (item 12) is permanent in effect but limited to certificates given before commencement. The Act does not have a sunset clause. Repeals of the old Act and consequential amendments are permanent structural changes to the statute book. The Act interacts with the new Act, but the new Act has its own amendment history. For practical purposes, the significant amendment history to monitor is the new Act, not this transitional Act. However, if the new Act is later amended, the cross references in this Act (in the consequential amendments to other Acts) may need updating. For example, if the new Act changes its section numbers, the definitions in the Navigation Act and Sea Installations Act would become incorrect. No such amendments have occurred as of the date of the source.

The source text does not refer to any litigation history, and none can be inferred. The Act is procedural and transitional in nature; it is unlikely to be litigated directly. Disputes are more likely to arise under the new Act, such as challenges to permit conditions, revocations, or enforcement actions. The transitional provisions could be litigated in specific circumstances: for example, a person whose pending application was deemed refused (item 9) might challenge whether the refusal was valid or seek judicial review. The conditions of deemed permits, especially the non transferability condition (item 6(3)(e)), could be challenged if a permit holder argues it affects property rights. The Minister’s power to change the register (item 11(2)) could be challenged if changes affect the status of an article or a person’s rights. The extended notice compliance period in item 7(3) could be contested if a person argues it imposes a longer obligation than under the old Act. The continuation of evidentiary certificates (item 12) could be litigated in proceedings where the reliability of an old certificate is questioned. The interaction between the Protection of the Sea Act amendment (item 4) and the new Act could be relevant in litigation about intervention powers. None of these scenarios are reported in the source. Practitioners should be aware that any legal challenge would likely involve interpreting both the old and new Acts, as the transitional provisions depend on both. The absence of reported litigation does not mean it will not occur; the Act has been in force since 2019, and some time may be needed for disputes to reach court. Counsel should search for any cases involving the new Act that also cite this transitional Act.

Several provisions create traps for the unwary. First, pending permit applications under the old Act are deemed refused on commencement (item 9). Anyone who had lodged an application before 1 July 2019 without receiving a decision lost their application automatically. This is a harsh outcome that imposes the costs of refiling under the new Act, which may have different fees, criteria and processing times. There is no savings provision for pending applications; the deemed refusal is absolute. Second, the non transferability condition on deemed permits (item 6(3)(e)) restricts the ability to transfer rights. Someone who held a notice about possession of an article (which was not a permit under the old Act) now holds a non transferable permit under the new Act. This could affect commercial arrangements, such as selling a collection of artefacts. Third, the Minister may vary or revoke deemed permits under the new Act (item 6(3)(d)(i) and (ii)), including permits that were previously indefinite under the old Act. This introduces uncertainty for long standing holders. Fourth, compliance periods for location notices that were under 21 days are automatically extended to 21 days (item 7(3)). A person who received a notice with a 14 day period under the old Act now has a longer period, but they may not realise this and could inadvertently fail to comply if they relied on the old deadline. Fifth, the register continuation (item 11) gives the Minister power to make changes to the register “as the Minister considers appropriate”. This is a unilateral power that could be used to alter entries without the holder’s consent or notice. Sixth, the definition of “historic wreck” in the Navigation Act is now tied to the new Act (item 3), which may have a broader or different scope than the old definition. Ship operators need to verify what articles fall within the new definition. Seventh, the Sea Installations Act change (items 5-7) replaces “excluded wreck” with “excluded wreckage”. The new term may cover different items, affecting operators of sea installations who rely on exclusions. Eighth, the Protection of the Sea Act amendment (item 4) is a savings provision that says the new Act does not affect that Act. This could be used to argue that the new Act’s protections do not limit intervention powers, which may be a surprise to those who assume the new Act provides blanket protection. Ninth, evidentiary certificates under the old Act continue to apply (item 12), but practitioners may overlook them and fail to tender them in proceedings under the new Act. Tenth, the Act does not provide for transitional relief from penalties if a person inadvertently fails to comply due to confusion between the old and new regimes. The burden of understanding the new Act is on the individual.

Compliance with this Act is largely passive: most transitional provisions operate automatically without requiring any action from affected persons. However, there are several steps that prudent persons should take. First, identify whether you hold any rights or obligations under the old Historic Shipwrecks Act 1976: permits, declarations, notices, directions, or pending applications. If you had a pending permit application on 1 July 2019, it is deemed refused (item 9); you must lodge a fresh application under the new Act if you wish to proceed. Second, if you had a permit under section 15 of the old Act, it is automatically transitioned (item 10). You should obtain a copy of the new permit from the Minister and verify that the authorised conduct, conditions and expiry date are correctly recorded. Note that the Minister may impose additional conditions under the new Act (section 24). Third, if you had given a notice about possession of an article under section 9 of the old Act, you are now deemed to hold a permit (item 6). Review the deemed terms: it is non transferable, the permit number is your unique identifier from the old Register, and the permit is indefinite unless varied or revoked. Ensure you can locate the unique identifier. Fourth, if you received a notice about location of an article under section 10 of the old Act, check the compliance period. If it was less than 21 days, it is automatically extended (item 7(3)). Comply within the new 21 day period. Fifth, if you received a direction about custody under section 11 of the old Act, it continues as a direction under the new Act (item 8). Comply accordingly. Sixth, monitor any variations or revocations by the Minister under sections 25 and 26 of the new Act. The Minister can vary or revoke permits without your consent. Seventh, check the register if you have articles listed. The Minister may make changes to the register (item 11(2)). If an entry is incorrect, you should request correction. Eighth, if you operate a ship subject to the Navigation Act, review the definition of “historic wreck” as now cross referenced to the new Act, which may cover a broader range of articles. Ensure your crew are aware of the applicable obligations. Ninth, if you operate a sea installation, review the definition of “excluded wreckage” which may exclude certain items from installation regulation. Tenth, keep records of all old Act documentation, as evidentiary certificates remain valid (item 12). In summary, the key compliance action is to understand that the old Act is repealed and that all rights and obligations now derive from the new Act. Read the new Act carefully; this transitional Act only bridges the gap. Seek legal advice if you hold a permit or notice that is now subject to Ministerial variation or revocation powers.