Underwater Cultural Heritage Rules 2018

The Rules introduce or operationalise several concepts from the Act. “Heritage significance” is the central qualitative threshold, defined by eight criteria in section 5: (a) significance in the course, evolution or pattern of history; (b) potential to yield information about history, technology or social developments; (c) potential to yield information about composition and history of cultural remains and associated natural phenomena through physical, chemical or biological processes; (d) technical or creative accomplishments of a period; (e) association with a community in contemporary Australia for social, cultural or spiritual reasons; (f) potential for public education; (g) rarity or endangered or uncommon aspects of history; (h) characteristics of a class of cultural articles. These criteria are broad and qualitative. A second major concept is the “fit and proper person” test applied to permit applicants and any person who will participate in the authorised conduct (section 6(2)). The Rules do not define “fit and proper” exhaustively but require the Minister to consider criminal convictions under listed Commonwealth laws, state or territory laws relating to underwater cultural heritage, foreign laws relating to underwater cultural heritage, and reasonable suspicion of engaging in supply of unlawfully obtained underwater cultural heritage (section 6(3)). This list is non‑exhaustive, leaving the Minister free to consider other factors. The concept “protected underwater cultural heritage” and “protected zone” are defined by the Act and used in the Rules without redefinition. “Underwater Cultural Heritage Convention” means the UNESCO 2001 Convention as amended from time to time, with a note that it could be viewed on the UNESCO website. The concept of “relevant government guidelines” appears repeatedly in sections 6 and 8 as a factor the Minister must consider, but the Rules do not specify which guidelines, nor do they require the guidelines to be published or subject to parliamentary scrutiny. This introduces uncertainty: applicants cannot know with precision what standards will be applied. The concept of “shared heritage interests” and “issues of ownership or sovereignty” arises in consultation requirements under sections 6(4)(d), 6(5)(d), 6(6)(d), 6(7)(d) and 8(2)(c), but the Rules do not define who counts as a relevant stakeholder, what constitutes appropriate consultation, or how disagreements about sovereignty are to be resolved. The effect is to give the Minister a very wide remit.

The Rules directly affect any person or entity that needs a permit under the Underwater Cultural Heritage Act 2018 to conduct activities involving protected underwater cultural heritage. This includes marine archaeologists, salvors, treasure hunters, commercial salvage operators, museums, research institutions, universities, private collectors, importers and exporters of heritage items, and any person who wishes to possess, control or supply such items. The Rules do not exempt recreational divers or hobbyists who do not interfere with protected heritage, but anyone who might inadvertently come across a declared site and wish to conduct any form of intervention will need to engage with the permit system. The Minister for the Environment and departmental officers are the decision‑makers who must apply the criteria, and the Rules constrain their discretion only by requiring them to “have regard to” listed matters - a relatively weak legal obligation. The compliance burden falls on applicants who must gather evidence of their fitness and properness, consult stakeholders, document consistency with the UNESCO Annex and government guidelines, and provide ownership details. There is no cost‑recovery mechanism in these Rules, so the administrative cost of assessing applications is absorbed by the department (and ultimately taxpayers) while applicants bear their own legal and consulting costs. The Rules also affect foreign governments and entities indirectly through the requirement to consider obligations under international conventions and “shared heritage interests” when the proposed conduct involves import/export or occurs in a protected zone. The requirement to consult on sovereignty issues may draw in state and territory governments in Australia’s maritime areas as well as foreign states with claims over shipwrecks. Private enterprises engaged in commercial salvage or deep‑sea exploration face the most significant compliance risk because the “fit and proper person” test and consultation requirements are open‑ended; a single adverse criminal conviction overseas or a reasonable suspicion of dealing in unlawfully obtained heritage can disqualify the applicant at the Minister’s discretion. The Rules do not set time limits for the Minister’s decision, so applicants may face long delays.

The Rules impose duties primarily on the Minister, not on private parties directly. The Minister must have regard to the matters listed in section 6 when deciding a permit application, and to section 8 matters when deciding a variation. These duties are procedural rather than substantive: “have regard to” means the Minister must consider those matters, but is not bound to give them any particular weight and can still grant or refuse the permit after considering them. No duty is imposed on the Minister to give reasons for decisions under these Rules, though the Act may contain such a requirement (not quoted in these Rules). The applicant has a right to apply for a permit under the Act, but the Rules give no right to a hearing, a decision within a set timeframe, or reasons if refused. The Rules impose no obligation on the Minister to publish decisions, guidelines, or lists of fit and proper persons. For permit holders, section 7 requires that a permit authorising possession, custody or control must specify the registration number from the section 48 register, a description sufficient to identify the heritage, and ownership details if known. This is a mandatory content requirement: a permit that fails to include these details would be incomplete, but the Rules do not say whether such a permit is void or merely voidable. The variation provision in section 8 gives no right to the permit holder to request a variation; it only tells the Minister what to consider when varying. The upshot is that the Rules create few enforceable rights for applicants or permit holders, and instead structure the Minister’s decision‑making discretion. The fit and proper person criteria in section 6(3) give the applicant a degree of certainty: if they have no relevant criminal history and are not suspected of dealing in unlawfully obtained heritage, they can argue they should be considered fit and proper, but the Minister can still consider other matters not listed. The consultation requirements impose a duty only on the Minister to have regard to whether appropriate consultation has been undertaken, not a duty on the applicant to consult; in practice, an applicant who does not consult may find their application rejected.

The Rules themselves do not create any penalties, offences or enforcement mechanisms. They are a procedural instrument that channels decision‑making under the Act. Any penalties for non‑compliance would be found in the Underwater Cultural Heritage Act 2018, which is not reproduced here. The only reference to penalties in these Rules is in section 6(3), which lists offences that can be considered when assessing whether a person is “fit and proper”. These include offences against the Act, the repealed Historic Shipwrecks Act 1976, the Protection of Movable Cultural Heritage Act 1986, the Customs Act 1901, the Criminal Code and the Crimes Act 1914 (where relating to the former Acts), as well as state/territory and foreign laws relating to underwater cultural heritage. A conviction for any of these does not automatically disqualify a person from obtaining a permit; it is merely a matter the Minister may consider. The same applies to being “suspected on reasonable grounds” of engaging in supply of unlawfully obtained underwater cultural heritage - a very low threshold that could be based on intelligence or third‑party allegations without a conviction. The absence of any penalty provisions in these Rules means they cannot be directly enforced; they are advisory criteria for the Minister. However, if a permit is granted under these Rules and the holder breaches the Act, penalties under the Act apply. The Rules also do not provide for any audit, inspection, or reporting requirements; once a permit is granted, the permit holder’s obligations are whatever the Act and the specific permit conditions impose. The Rules do not mention what happens if a permit application is refused - no review mechanism is specified. Judicial review under the Administrative Decisions (Judicial Review) Act 1977 would likely be available for a Ministerial decision, but the Rules do not signal that. The practical enforcement risk for an applicant is that an adverse fit‑and‑proper finding can permanently bar them from the permit system without any sunset or review mechanism in these Rules.

The Rules explicitly interact with several Commonwealth statutes. Section 6(3)(a) lists the Act, the repealed Historic Shipwrecks Act 1976, the Protection of Movable Cultural Heritage Act 1986, the Customs Act 1901, the Criminal Code, and the Crimes Act 1914. A conviction under any of these, to the extent they relate to underwater cultural heritage, is relevant to the fit and proper person test. This means that a person convicted under the Customs Act for dealing in smuggled cultural goods could be excluded from a permit under this regime. The reference to state and territory laws (section 6(3)(b)) and foreign laws (section 6(3)(c)) about underwater cultural heritage means the permit system is not confined to federal offences; it reaches into jurisdictions that may have very different standards of proof or concepts of heritage. The Rules also interact with the UNESCO Convention on the Protection of the Underwater Cultural Heritage through the requirement in sections 6(4)(c), 6(6)(c), 6(7)(c) and 8(2)(a)(ii) that the Minister consider whether proposed conduct is consistent with the relevant requirements of the Annex to the Convention. This imports an international soft‑law instrument into domestic decision‑making without enacting it as Australian law. The Annex contains detailed rules on archaeological methodologies, project design, reporting and curation. For an applicant, demonstrating consistency with the Annex may require preparation of a full project design document, which is a significant compliance cost. The Rules also require the Minister to consider “obligations under any relevant international conventions, agreements or treaties” (sections 6(4)(d)(iii), 6(5)(d)(iii), 6(6)(d)(iii), 6(7)(d)(iii), 8(2)(c)(iii)). This opens the door to considering a wide range of international instruments not listed, including the UN Convention on the Law of the Sea, bilateral treaties on shipwrecks, or even non‑binding agreements. The interaction with state and territory heritage laws is not explicitly addressed; the Rules only require consideration of convictions under such laws, not compliance with them. This could create dual regulation for activities in coastal waters where state and federal heritage regimes overlap. The reference to “shared heritage interests” and “ownership or sovereignty” in consultation requirements means the Rules potentially interact with native title rights, international law on sunken state vessels, and maritime boundary disputes, but no guidance is given.

The instrument as provided is the original version, made on 18 December 2018 by Minister Melissa Price. No amendments are recorded in the text supplied. The commencement table shows it took effect on the later of the day after registration and the commencement of the Act, which was 1 July 2019. The table states that information in column 3 is not part of the instrument and may be edited in any published version, implying that subsequent amendments could be reflected in column 3 but are not shown here. A search of the Federal Register of Legislation would be required to determine whether any amendments have been made between 2019 and the present. The instrument does not contain a note referencing any amending instruments, nor does it list amending rules. It is possible that no substantive amendments have been made to date, or that amendments exist but are not included in the user‑supplied text. Because the user has provided only the original instrument, we must assume for the purposes of this analysis that the Rules remain as originally enacted. The authority section (section 3) states the instrument is made under the Act, so any future amendments would require a new legislative instrument under the same enabling power. The Rules themselves do not contain a sunset clause or automatic review date.

The instrument itself does not cite any cases, and the user‑provided text contains no references to litigation. The Rules are a procedural instrument that channels ministerial discretion, so they are unlikely to be directly challenged except as part of an application for judicial review of a specific permit decision. No cases are named in the instrument, and a general knowledge search (which we must not rely on per instructions) is not permissible here. The only possible source of litigation would be if an applicant challenged a refusal under administrative law grounds - such a challenge would not be recorded in these Rules. The instrument’s broad discretion and vague language (“fit and proper person”, “suspected on reasonable grounds”, “appropriate consultation”) are fertile ground for legal challenge, but no such challenges are mentioned. Because the Rules came into force only in July 2019, and underwater cultural heritage permits are relatively rare, it is plausible that no significant litigation has yet occurred. The instrument does not create any private cause of action or civil penalties, so litigation is likely limited to judicial review. The user is warned that the absence of cited litigation in the instrument does not mean no litigation exists; it simply means the instrument records none.

Several provisions in the Rules create risks for unwary applicants or permit holders. First, the “fit and proper person” test in section 6(2) applies not only to the applicant but also to “each person who will participate in, or otherwise be involved in, the conduct proposed to be authorised”. This means a company applying for a permit must also ensure that every employee, contractor, volunteer or sub‑contractor who will be on site or involved in the activity is individually fit and proper. A criminal conviction of a junior team member from a decade ago could derail the entire application. Second, the Minister can consider “whether the person is suspected on reasonable grounds of engaging in the supply of unlawfully obtained underwater cultural heritage” under section 6(3)(d). This is a suspicion‑based test, not a conviction. A person may be excluded based on unsubstantiated allegations, with no opportunity to challenge the suspicion before the decision. Third, the consultation requirements in sections 6(4)(d), 6(5)(d), 6(6)(d) and 6(7)(d) are open‑ended. There is no definition of “relevant stakeholders” - they could include foreign governments, indigenous groups, state agencies, local councils, or descendants of shipwreck crews. An applicant who fails to consult one group the Minister later considers relevant risks refusal. Fourth, the Rules do not specify a maximum time for the Minister to decide an application. This creates uncertainty: an applicant may incur holding costs for vessels, personnel and equipment while waiting months or years. Fifth, “relevant government guidelines” mentioned throughout are not identified, and the Rules do not require them to be publicly available. An applicant cannot be sure what guidelines will apply on the day of decision. Sixth, the requirement under section 7 that a permit for possession, custody or control must specify ownership details “(if known)” creates ambiguity. If ownership is disputed or unknown, the permit may be incomplete. Seventh, the variation criteria in section 8 are similar to the original application criteria, meaning a permit variation is almost as onerous as a fresh application. Eighth, the Rules do not address what happens if the Minister’s regard to these matters is inadequate - no consequence is stated.

Compliance with the Underwater Cultural Heritage Rules 2018 is relevant only for persons seeking a permit under the Act. There are no general compliance obligations for the public. For an applicant, the practical steps involve addressing each of the mandatory considerations in section 6 as they apply to the specific proposed conduct. First, the applicant must establish that they and all participants are fit and proper persons. This requires gathering criminal history checks for all individuals from Commonwealth, state, territory and relevant foreign jurisdictions, covering the Acts listed in section 6(3). Any past convictions must be disclosed and explained. If any person has been suspected of dealing in unlawfully obtained heritage, that suspicion should be addressed with evidence to rebut it. Second, if the conduct will have an adverse impact on protected underwater cultural heritage, the applicant must show consistency with the objects of the Act (which are set out in the Act, not in these Rules), with government guidelines (which the applicant must locate, possibly by requesting them from the department), and with the Annex to the UNESCO Convention. This typically requires preparing a research design, methodology statement, curation plan and reporting framework that mirrors the Annex’s rules. Third, the applicant must demonstrate that appropriate consultation has taken place with relevant stakeholders on shared heritage interests, ownership or sovereignty issues, and obligations under international instruments. The applicant should identify likely stakeholders (foreign governments, indigenous communities, state heritage agencies, other researchers) and document the consultation process, including responses and agreements reached. Fourth, if the conduct will occur in a protected zone, the applicant must also address the matters in section 20(3) of the Act (not quoted in the Rules) and show consistency with the objects and guidelines. Fifth, if the conduct involves import or export, additional consideration of guidelines and consultation is required. Sixth, if the conduct involves possession, custody or control, the applicant must similarly address those factors. For permit holders under section 7, the permit must include a registration number, a sufficient description, and ownership details. The permit holder should ensure these details are accurate and kept updated - if ownership changes, the permit may need variation. For permit variations under section 8, the applicant must essentially re‑run the compliance analysis for the proposed variation, addressing consistency with objects, the Annex, guidelines, and consultation. Throughout, applicants should keep detailed records of all steps taken, as the Minister may request evidence. Legal advice is strongly recommended given the breadth of the discretion.