Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Aboriginal Cultural Heritage Bill 2021
Contents
Part 1 -- Preliminary
Division 1 -- Introduction
1. Short title 2
2. Commencement 2
Division 2 -- Overview of Act
3. Overview of Act 2
4. What Act is about 3
5. Main topics dealt with in Act and where to find
them 3
6. Other things dealt with in Act and where to find
them 7
7. Overview is a guide 8
Division 3 -- Objects and principles
8. Objects of Act 9
9. Principles relating to Aboriginal cultural heritage 10
10. Principles relating to management of activities that
may harm Aboriginal cultural heritage 11
Division 4 -- Interpretation
Subdivision 1 -- Terms used
11. Terms used 11
Subdivision 2 -- Other key terms
12. Meaning of Aboriginal cultural heritage and
related terms 21
13. Meaning of located in relation to Aboriginal
cultural heritage 22
Division 5 -- Other provisions of general
application
14. Act binds Crown 22
56--1 page i
Aboriginal Cultural Heritage Bill 2021
Contents
15. Act does not apply to certain objects 22
16. Native title rights and interests 22
17. Coroners Act 1996 not affected 23
18. Freedom of Information Act 1992 does not apply to
culturally sensitive information 23
Part 2 -- Aboriginal Cultural
Heritage Council and local
Aboriginal cultural heritage
services
Division 1 -- Interpretation
19. Terms used 24
Division 2 -- Aboriginal Cultural Heritage
Council
Subdivision 1 -- ACH Council established
20. ACH Council established 24
21. Composition of ACH Council 25
Subdivision 2 -- Functions and powers
22. Functions of ACH Council 25
23. Powers of ACH Council 27
24. Delegation by ACH Council 27
Subdivision 3 -- Staff and assistance
25. Facilities and services 28
26. Assistance 28
Subdivision 4 -- Accountability and financial
arrangements
27. Minister may give directions 29
28. Minister to have access to information 30
Subdivision 5 -- Other matters
29. Annual report of ACH Council 31
30. Committees 31
31. Procedures 32
32. Remuneration of members of ACH Council or
committee 32
33. Impersonating member of ACH Council 33
page ii
Aboriginal Cultural Heritage Bill 2021
Contents
Division 3 -- Local Aboriginal cultural heritage
services
Subdivision 1 -- Purpose and nature of local ACH
services
34. Purpose of local ACH service 33
35. Nature of local ACH service 33
Subdivision 2 -- Designation as local ACH service
36. ACH Council must designate local ACH service 34
37. Designation of local ACH service 34
38. Application to be designated as local ACH service 34
39. Requirements for designation as local ACH service 35
40. Order of priority of designation 36
41. ACH Council must give public notice of
designation 37
42. Duration of designation as local ACH service for
area 38
43. Suspension or cancellation of designation as local
ACH service for area or part of area 38
44. Change to area for local ACH service 40
45. Change to local ACH service 41
46. Objection to decision of ACH Council 41
47. Notice of decision must be given 43
Subdivision 3 -- Local ACH service functions and
related provisions
48. Local ACH service functions 43
49. Fee for services provided by local ACH service 45
50. Variation of fee structure for services provided by
local ACH service 45
Subdivision 4 -- Funding for local ACH services
51. Funding for local ACH services 46
52. Contravention of funding conditions 48
Part 3 -- Rights and duties in
relation to Aboriginal cultural
heritage
Division 1 -- Preliminary
53. Terms used 49
54. No compensation under this Part 49
page iii
Aboriginal Cultural Heritage Bill 2021
Contents
Division 2 -- Aboriginal ancestral remains
55. Rights of Aboriginal people in relation to
Aboriginal ancestral remains 49
56. ACH Council must be notified about Aboriginal
ancestral remains 50
57. Duty of organisations to return Aboriginal
ancestral remains 51
58. Duty of individuals to transfer Aboriginal ancestral
remains to custody of ACH Council 52
59. Transfer of Aboriginal ancestral remains by
coroner 52
60. Aboriginal ancestral remains transferred to custody
of ACH Council 52
61. Aboriginal ancestral remains must not be disturbed
or removed 53
Division 3 -- Secret or sacred objects
62. Term used: prescribed public authority 54
63. Rights of Aboriginal people in relation to secret or
sacred objects 54
64. ACH Council must be notified about secret or
sacred objects 55
65. Duty of prescribed public authorities to return
secret or sacred objects 55
66. Secret or sacred objects transferred to custody of
ACH Council 56
67. Secret or sacred objects must not be sold or
removed from the State 57
Division 4 -- Duty to report Aboriginal cultural
heritage to ACH Council
68. Reporting Aboriginal cultural heritage 57
Part 4 -- Protected areas
Division 1 -- Preliminary
69. Terms used 59
70. Purpose of protected area order 59
71. Protected area order guidelines must be considered 59
page iv
Aboriginal Cultural Heritage Bill 2021
Contents
Division 2 -- Application for area to be
declared as protected area
72. Application for area to be declared as protected
area 60
73. Further information in support of application 61
74. ACH Council may refuse to consider some
applications 61
75. ACH Council must notify certain persons about
application 62
76. Preliminary assessment by ACH Council 62
77. Giving public notice of intention to seek that area
be declared as protected area 63
78. Review of preliminary assessment of ACH Council
that area not be declared as protected area 64
Division 3 -- Recommendation of ACH Council
79. Recommendation of ACH Council 66
Division 4 -- Decision of Minister
80. Minister may request further information 68
81. Decision of Minister 68
Division 5 -- Declaration of protected area
82. Protected area orders 70
83. Amending and repealing orders 70
84. Order to correct error 72
85. Repeal of protected area order, or amendment to
reduce area declared as protected area 72
86. Provisions about protected area orders 72
87. Lodgment of notification with Registrar and
modification and withdrawal of notification 73
Division 6 -- Contravention of conditions on
protected area orders
88. Contravention of conditions on protected area
order 74
page v
Aboriginal Cultural Heritage Bill 2021
Contents
Part 5 -- Offences about harming
Aboriginal cultural heritage and
compensation for harm to
Aboriginal cultural heritage
Division 1 -- Preliminary
89. Application of Part 75
90. Meaning of harm to Aboriginal cultural heritage 75
91. Meaning of serious harm and material harm to
Aboriginal cultural heritage 75
Division 2 -- Offences: harm to Aboriginal
cultural heritage
92. Serious harm to Aboriginal cultural heritage 76
93. Serious harm to Aboriginal cultural heritage,
including by accident 77
94. Material harm to Aboriginal cultural heritage 77
95. Harm to Aboriginal cultural heritage 78
Division 3 -- Defences: harm to Aboriginal
cultural heritage
96. Defence of authority under Part 6 Division 4 78
97. Defences that apply in relation to protected areas 79
98. Other defences 79
Division 4 -- Compensation for harm to
Aboriginal cultural heritage
99. Compensation for harm to Aboriginal cultural
heritage 80
Part 6 -- Managing activities that
may harm Aboriginal cultural
heritage
Division 1 -- Preliminary
100. Terms used 82
101. Consultation about proposed activities 85
Division 2 -- Due diligence assessment
102. Due diligence assessment 85
103. Due diligence assessment not required for exempt
activity 86
page vi
Aboriginal Cultural Heritage Bill 2021
Contents
104. Proponent may seek confirmation about proposed
activity 86
105. Responsibility for undertaking due diligence
assessment 88
106. Related agreement may be used to satisfy some
due diligence requirements 88
Division 3 -- Persons to be notified or persons
to be consulted about activities or
proposed activities
107. Persons to be notified or persons to be consulted
about activities or proposed activities 88
108. Assistance to identify persons to be notified or
persons to be consulted 89
Division 4 -- Authority to carry out activity
that may harm Aboriginal cultural
heritage
109. Authority to carry out exempt activity 89
110. Authority to carry out tier 1 activity that may harm
Aboriginal cultural heritage 90
111. Authority to carry out tier 2 activity that may harm
Aboriginal cultural heritage 90
112. Authority to carry out tier 3 activity that may harm
Aboriginal cultural heritage 91
Division 5 -- ACH permits
Subdivision 1 -- Notice of intention to carry out
tier 2 activity
113. Notice of intention to carry out tier 2 activity 91
114. Notification carried out under related agreement 92
Subdivision 2 -- Grant of ACH permit
115. Application for ACH permit 92
116. Further information in support of application 93
117. ACH Council may refuse to consider some
applications 93
118. ACH Council to give notice of application 94
119. Decision of ACH Council on application for ACH
permit 94
120. Grant of ACH permit 95
121. Duration of ACH permit 96
page vii
Aboriginal Cultural Heritage Bill 2021
Contents
Subdivision 3 -- Extension of ACH permit
122. Application for extension of ACH permit 97
123. Further information in support of application 97
124. ACH Council may refuse to consider some
applications 98
125. ACH Council to give notice of application for
extension of ACH permit 98
126. Decision on application for extension of ACH
permit 98
Subdivision 4 -- Other matters
127. ACH Council must be notified of transfer of
ACH permit 100
128. Conditions 100
129. Amendment of ACH permit area 102
130. Suspension or cancellation of ACH permit 102
131. Objection to decision of ACH Council 104
132. Notice of decision must be given 105
133. Contravention of conditions on ACH permit 106
Division 6 -- ACH management plans
Subdivision 1 -- Preliminary
134. When ACH management plan required 106
135. Meaning of interested Aboriginal party for ACH
management plan 107
136. Assistance to identify each interested Aboriginal
party 107
137. ACH management plan 108
138. Provisions in related agreement 109
139. Obligation to consult on ACH management plan 110
140. Consultation carried out under related agreement 110
141. Proponent must take steps to identify and
understand characteristics of Aboriginal cultural
heritage in area 110
142. Notice about proposed ACH management plan to
each interested Aboriginal party 110
143. Reaching agreement about ACH management plan 111
144. Application for approval of ACH management
plan if agreement reached 112
145. Application for authorisation of ACH management
if agreement not reached 112
page viii
Aboriginal Cultural Heritage Bill 2021
Contents
Subdivision 2 -- Approval of ACH management
plan
146. Informed consent 112
147. Application for approval of ACH management
plan 113
148. Further information in support of application 114
149. ACH Council may refuse to consider some
applications 115
150. Decision of ACH Council 115
151. Approval of ACH management plan 117
152. Duration of ACH management plan approval 117
153. Conditions 118
154. Suspension or cancellation of ACH management
plan approval 118
155. Objection to decision of ACH Council 119
156. Notice of decision must be given 120
Subdivision 3 -- Authorisation of ACH management
plan by Minister
157. Application for authorisation of ACH management
plan 121
158. Further information in support of application 122
159. ACH Council may refuse to consider some
applications 122
160. Assistance to reach agreement on ACH
management plan 123
161. ACH Council may approve ACH management
plan if agreement reached 124
162. Recommendation of ACH Council 125
163. Recommendation of ACH management plan 126
164. Minister may request further information 127
165. Decision of Minister 128
166. Duration of ACH management plan authorisation 129
167. Conditions 129
168. Suspension or cancellation of authorisation of
ACH management plan 131
Subdivision 4 -- Other provisions about
ACH management plans
169. Approval of amended ACH management plan 132
170. Authorisation of amended ACH management plan 133
page ix
Aboriginal Cultural Heritage Bill 2021
Contents
171. Change to identity of parties to ACH management
plan 134
172. Approved or authorised ACH management plan
continues to have effect despite change to identity
of party 135
173. Contravention of conditions on approved or
authorised ACH management plan 136
Subdivision 5 -- Aboriginal cultural heritage of
State significance
174. State significance guidelines must be considered 136
175. Notice must be given if ACH Council forms view
that Aboriginal cultural heritage may be of State
significance 136
176. Determination about Aboriginal cultural heritage
of State significance 138
177. Continuation of applications 139
Part 7 -- Stop activity orders,
prohibition orders and
remediation orders
Division 1 -- Preliminary
178. Terms used 141
179. Application of Part 142
Division 2 -- Stop activity orders
180. Stop activity order may be given by Minister in
certain circumstances 142
181. Contents of stop activity order 144
182. Extension of duration of stop activity order 145
183. Compliance with stop activity order 146
Division 3 -- Prohibition orders
184. Recommendations by ACH Council about
prohibition orders under section 185(1)
or 186(1)(b) 146
185. ACH Council may make recommendation about
prohibition orders in certain circumstances 146
186. ACH Council must make recommendation about
prohibition order while stop activity order of effect 148
page x
Aboriginal Cultural Heritage Bill 2021
Contents
187. ACH Council must give notice before making
recommendation about prohibition order 149
188. Prohibition order may be given by Minister 151
189. Contents of prohibition order 152
190. Compliance with prohibition order 153
191. Extension of duration of prohibition order 153
192. Notice by Minister before extension of duration of
prohibition order 154
Division 4 -- Remediation orders
193. ACH Council may recommend remediation order 154
194. Remediation order may be given by Minister 155
195. Contents of remediation order 155
196. Compliance with remediation order 156
197. Other persons may carry out remediation if order
contravened 156
198. Entry to carry out remediation 156
199. Recovery by person given remediation order 157
Division 5 -- Other provisions about orders
under this Part
200. General matters about orders under this Part 157
201. Directions in orders under this Part 157
202. Duration of orders under this Part 158
203. Amendment or cancellation of certain orders under
this Part 158
204. Notification by Minister before amending or
cancelling prohibition order 159
205. Display of order under this Part 159
Part 8 -- Aboriginal cultural heritage
protection agreements
206. ACH protection agreement 160
207. Endorsement of ACH protection agreement 161
208. Further information in support of submission 161
209. ACH Council may refuse to consider some
submissions 161
210. Decision of ACH Council 162
page xi
Aboriginal Cultural Heritage Bill 2021
Contents
Part 9 -- Aboriginal Cultural
Heritage Directory
Division 1 -- ACH Directory
211. ACH Directory 163
212. Purposes of ACH Directory 163
213. Information and documents on ACH Directory 163
214. Accuracy of ACH Directory 165
215. Removing information and documents from ACH
Directory 166
Division 2 -- Access to ACH Directory
216. Access to ACH Directory 166
217. Access for Aboriginal people 167
218. Access to information about protected areas and
management of activities 167
219. Access for proponents of activities 168
220. Access for research 169
Part 10 -- Securing compliance
Division 1 -- Preliminary
221. Terms used 170
222. Reasonably suspects 170
223. Thing relevant to an offence 171
Division 2 -- Inspectors
224. Inspectors 171
225. Aboriginal inspectors 172
226. Identity cards 172
227. Production or display of identity card 173
228. Police officers have powers of inspectors 174
229. Impersonating an inspector or an Aboriginal
inspector 174
Division 3 -- Inspection and related powers
230. Purposes for which inspection may be carried out 174
231. Power to enter places 174
232. Entering Aboriginal places 175
233. Power to enter includes power to enter some other
places 176
234. Power to stop and enter vehicles, and ancillary
powers 176
page xii
Aboriginal Cultural Heritage Bill 2021
Contents
235. Application of CI Act s. 31 176
236. Other powers related to inspection 177
237. Obtaining records 178
238. Directions 179
239. Seizure of thing relevant to an offence 180
240. Security of seized things 181
241. Dealing with seized things 182
242. Dealing with Aboriginal ancestral remains 183
243. Forensic examination 183
Division 4 -- Entry warrants
244. Applying for entry warrant 184
245. Making application for entry warrant 184
246. Further provisions relating to application for entry
warrant 186
247. Issuing entry warrant 187
248. Effect of entry warrant 187
249. Execution of entry warrant 188
Division 5 -- Other provisions
250. Direction may be given orally or in writing 188
251. Time and place for compliance with direction 188
252. Contravention of directions 188
253. Exercise of power may be recorded 188
254. Assistance to exercise powers 189
255. Application of CI Act s. 154 and 155 189
256. Obstruction of inspector 189
257. Self-incrimination not an excuse 190
258. Orders for forfeiture or disposal of seized things 190
259. Application of Criminal and Found Property
Disposal Act 2006 190
Part 11 -- Legal proceedings
Division 1 -- General provisions relating to
offences
260. Who may commence proceedings 192
261. Time limit for prosecution of simple offence 192
Division 2 -- Court may order costs and
expenses
262. Court may order costs and expenses 193
page xiii
Aboriginal Cultural Heritage Bill 2021
Contents
Division 3 -- Criminal liability of body
corporate officers, employees and others
263. Term used: officer 193
264. Liability of officers for offence by body corporate 193
265. Further provisions relating to liability of officers of
body corporate 194
266. Liability of partners 195
267. Liability of principals for offence by agent 195
268. Liability of employer for offences by employee 196
269. Liability of employees and agents 197
Division 4 -- Evidentiary provisions
270. Application of Division 197
271. Certain matters taken to be proved if alleged in
prosecution notice or indictment 198
272. Evidence of certain matters if stated in certificate 198
273. Evidence in relation to documents 202
274. Onus of proving certain matters 203
Part 12 -- Review by State
Administrative Tribunal
Division 1 -- Preliminary
275. Application of Part 204
276. Terms used 204
Division 2 -- Review by State Administrative
Tribunal
277. Review of certain decisions 204
278. Notice of reviewable decisions must be given 206
Part 13 -- Miscellaneous
Division 1 -- Aboriginal Cultural Heritage
Account and Aboriginal Cultural
Heritage Compensation Fund
Subdivision 1 -- Aboriginal Cultural Heritage
Account
279. Aboriginal Cultural Heritage Account 207
Subdivision 2 -- Aboriginal Cultural Heritage
Compensation Fund
280. Aboriginal Cultural Heritage Compensation Fund 208
page xiv
Aboriginal Cultural Heritage Bill 2021
Contents
Subdivision 3 -- Provisions relating to accounts
established under this Division
281. Application of Financial Management Act 2006
and Auditor General Act 2006 209
Division 2 -- Giving notice
282. Public notice 210
283. Giving notice generally 210
284. Giving notice to landholder or occupier of land 211
285. Giving certain notices 212
286. Defects in notice 213
Division 3 -- Regulations and guidelines
Subdivision 1 -- Regulations
287. Regulations 213
288. Regulations about ACH Council and local ACH
services 213
289. Regulations about protected areas 214
290. Regulations about ACH Directory 215
291. Regulations about determining whether
information is culturally sensitive information 215
292. Regulations about fees and charges 215
293. Other regulations 217
Subdivision 2 -- Guidelines
294. Guidelines 218
295. Preparation of guidelines 218
296. Consultation on proposed guidelines 219
297. Approval of Minister 220
298. Provisions about guidelines 220
299. Amending or repealing guidelines 220
Division 4 -- General provisions
300. No circumventing or contracting out 221
301. Delegation by Minister 221
302. Delegation by CEO 222
303. CEO may disclose information 223
304. Giving false or misleading information 225
305. Protection from liability for wrongdoing 225
306. Confidentiality 226
307. CEO may approve forms 227
page xv
Aboriginal Cultural Heritage Bill 2021
Contents
308. Laying documents before House of Parliament not
sitting 227
309. Review of Act 228
Part 14 -- Repeals and transitional
matters
Division 1 -- Repeals
310. Aboriginal Heritage Act 1972 repealed 229
311. Aboriginal Heritage Regulations 1974 repealed 229
312. Aboriginal Heritage (Marandoo) Act 1992
repealed 229
Division 2 -- Transitional provisions arising
from the enactment of the Aboriginal
Cultural Heritage Act 2021
Subdivision 1 -- Interpretation
313. Terms used 229
Subdivision 2 -- Protected areas
314. Terms used 230
315. Historical protected area orders 230
316. Continuation of former protected area orders 231
317. Conditions on former protected area orders 232
Subdivision 3 -- AH Act section 18 consents and
AH Act approvals
318. Terms used 232
319. AH Act section 18 consents no longer in force 233
320. AH Act approvals no longer in force 233
321. AH Act section 18 consents taken to be authorised
ACH management plans in some circumstances 234
322. AH Act section 18 consents taken to be
authorisation under Part 6 Division 4 in some
circumstances 236
323. AH Act approvals taken to be ACH permits in
some circumstances 236
324. AH Act approvals taken to be authorisation under
Part 6 Division 4 in some circumstances 237
325. Expiry of historical AH Act section 18 consents 238
326. Extension of duration of transitional AH Act
section 18 consents 239
page xvi
Aboriginal Cultural Heritage Bill 2021
Contents
Subdivision 4 -- Marandoo Act area
327. Terms used 240
328. Historical AH Act section 18 consent taken to be
held 241
329. Minister may approve reduced area 242
330. Purported section 18 consents are of no effect 243
Subdivision 5 -- Other matters
331. Information and documents on former register
transferred to ACH Directory 243
332. Unfinished business 243
333. ACMC abolished 244
334. Completion of things commenced 244
335. References to Aboriginal Heritage Act 1972 244
336. Transitional regulations 244
337. Interpretation Act 1984 not affected 246
Part 15 -- Aboriginal Heritage
Act 1972 amended
Division 1 -- Act amended
338. Aboriginal Heritage Act 1972 amended 247
Division 2 -- Amendments commencing on day
after assent day
339. Section 4 amended 247
340. Section 18 amended 247
Division 3 -- Amendments commencing on
transition day
341. Long title replaced 249
342. Sections 4A and 4B inserted 249
4A. Application of Act limited 249
4B. Act continues to apply for certain
purposes only 249
Part 16 -- Other Acts amended
343. Conservation and Land Management Act 1984
amended 251
344. Constitution Acts Amendment Act 1899 amended 251
345. Control of Vehicles (Off-road Areas) Act 1978
amended 252
page xvii
Aboriginal Cultural Heritage Bill 2021
Contents
346. Coroners Act 1996 amended 252
19B. Investigations and Aboriginal ancestral
remains 252
347. COVID-19 Response and Economic Recovery
Omnibus Act 2020 amended 253
348. Environmental Protection Act 1986 amended 253
349. Heritage Act 2018 amended 253
350. Planning and Development Act 2005 amended 254
351. Railway (Tilley to Karara) Act 2010 amended 254
352. Sentencing Act 1995 amended 254
353. State Records Act 2000 amended 255
Defined terms
page xviii
Western Australia
LEGISLATIVE ASSEMBLY
Aboriginal Cultural Heritage Bill 2021
A Bill for
An Act --
• about Aboriginal cultural heritage; and
• to repeal the Aboriginal Heritage Act 1972 and the Aboriginal
Heritage (Marandoo) Act 1992; and
• to make consequential and other amendments to various Acts;
and
• for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 1 Introduction
s. 1
1 Part 1 -- Preliminary
2 Division 1 -- Introduction
3 1. Short title
4 This is the Aboriginal Cultural Heritage Act 2021.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent (assent day);
9 (b) Part 15 (other than Division 3) -- on the day after assent
10 day;
11 (c) Part 14 Division 1 (other than sections 310 and 311) --
12 on the day on which Part 15 Division 3 comes into
13 operation (transition day);
14 (d) sections 310 and 311 -- at the end of the period of
15 6 months beginning on transition day (repeal day);
16 (e) the rest of the Act -- on a day fixed by proclamation,
17 and different days may be fixed for different provisions.
18 Division 2 -- Overview of Act
19 3. Overview of Act
20 This Division is intended --
21 (a) to give a general indication of what this Act is about;
22 and
23 (b) to assist readers to identify the provisions of this Act
24 that are relevant to them; and
25 (c) to indicate how this Act is arranged.
page 2
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Overview of Act Division 2
s. 4
1 4. What Act is about
2 (1) This Act is about valuing and protecting Aboriginal cultural
3 heritage and managing activities that may harm that heritage.
4 (2) Through its terms, this Act recognises the special interest
5 Aboriginal people have in protecting, conserving, preserving
6 and managing Aboriginal cultural heritage.
7 5. Main topics dealt with in Act and where to find them
8 (1) Part 2 provides for the following bodies to assist in the
9 administration of this Act --
10 (a) the Aboriginal Cultural Heritage Council -- see Part 2
11 Division 2;
12 (b) local Aboriginal cultural heritage services -- see Part 2
13 Division 3.
14 (2) Rights and duties in relation to Aboriginal cultural heritage are
15 dealt with in Part 3, which includes the following --
16 (a) providing that Aboriginal people are the custodians of
17 Aboriginal ancestral remains and are entitled to the
18 possession and control of those remains -- see Part 3
19 Division 2;
20 (b) providing that Aboriginal people are the custodians of
21 secret or sacred objects and in some circumstances are
22 the rightful owners of secret or sacred objects and
23 entitled to the possession and control of those objects --
24 see Part 3 Division 3;
25 (c) providing a process for the return to Aboriginal people
26 of Aboriginal ancestral remains and some secret or
27 sacred objects -- see Part 3 Divisions 2 and 3;
28 (d) imposing a duty to report Aboriginal cultural heritage to
29 the ACH Council -- see Part 3 Division 4.
page 3
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 2 Overview of Act
s. 5
1 (3) The protection of areas in which Aboriginal cultural heritage of
2 outstanding significance is located is provided for in Part 4,
3 which includes the following --
4 (a) enabling knowledge holders to apply for those areas to
5 be declared as protected areas -- see Part 4 Division 2;
6 (b) providing special protection from activities that may
7 harm that Aboriginal cultural heritage -- see Part 4
8 Divisions 5 and 6;
9 (c) providing that protected area orders cannot be repealed
10 or amended to reduce the size of the protected area
11 without a resolution passed by both Houses of
12 Parliament -- see section 85.
13 (4) Offences, penalties and compensation for harm to Aboriginal
14 cultural heritage are provided for in Part 5, which includes the
15 following --
16 (a) 3 levels of offences for harming Aboriginal cultural
17 heritage --
18 (i) the crime of serious harm to Aboriginal cultural
19 heritage -- see sections 92 and 93;
20 (ii) the offence of material harm to Aboriginal
21 cultural heritage -- see section 94;
22 (iii) the offence of harm to Aboriginal cultural
23 heritage -- see section 95;
24 (b) defences for those offences -- see Part 5 Division 3;
25 (c) compensation for harm to Aboriginal cultural heritage
26 caused as a direct or indirect consequence of the
27 commission of an offence under Part 5 Division 2 -- see
28 Part 5 Division 4.
29 Note for this subsection:
30 For the purposes of paragraph (b), authorisation under Part 6
31 Division 4 to carry out an activity that harms Aboriginal cultural heritage
32 is a defence to a charge of an offence of harming Aboriginal cultural
33 heritage under Part 5 Division 2. This may include that the activity was
34 carried out in accordance with an ACH permit or an approved or
page 4
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Overview of Act Division 2
s. 5
1 authorised ACH management plan. Part 6 Divisions 5 and 6 set out the
2 procedure for getting an ACH permit or an approval or authorisation for
3 an ACH management plan.
4 (5) The management of activities that may harm Aboriginal cultural
5 heritage is dealt with in Part 6, which includes the following --
6 (a) providing that proponents must undertake due diligence
7 assessments under Part 6 Division 2 in relation to
8 proposed activities (unless the activities are exempt
9 activities), to assess --
10 (i) whether areas where it is intended to carry out
11 proposed activities include any area that is part
12 of a protected area; and
13 (ii) based on the level of ground disturbance,
14 whether proposed activities are tier 1 activities,
15 tier 2 activities or tier 3 activities; and
16 (iii) whether Aboriginal cultural heritage is located in
17 areas where the proponent intends to carry out
18 proposed activities; and
19 (iv) whether there is a risk of harm being caused to
20 Aboriginal cultural heritage by proposed
21 activities;
22 (b) the persons to be notified and the persons to be
23 consulted about proposed activities -- see Part 6
24 Division 3;
25 (c) the circumstances in which persons are authorised to
26 carry out activities that may harm Aboriginal cultural
27 heritage -- see Part 6 Division 4;
28 (d) other matters relating to the management of activities
29 that may harm Aboriginal cultural heritage, including
30 the following --
31 (i) specifying activities that are exempt from
32 requiring due diligence assessments -- see
33 section 103 and the definition of exempt activity
34 in section 100;
page 5
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 2 Overview of Act
s. 5
1 (ii) obtaining ACH permits authorising tier 2
2 activities -- see Part 6 Division 5;
3 (iii) entering into ACH management plans
4 authorising activities that may harm Aboriginal
5 cultural heritage (including tier 3 activities and
6 activities that may harm Aboriginal cultural
7 heritage determined to be of State significance
8 for the purposes of this Act) -- see Part 6
9 Division 6;
10 (iv) determining whether Aboriginal cultural heritage
11 is of State significance for the purposes of this
12 Act -- see Part 6 Division 6 Subdivision 5.
13 Note for this subsection:
14 For the purposes of paragraph (c), authorisation under Part 6
15 Division 4 to carry out an activity that harms Aboriginal cultural heritage
16 is a defence to a charge of an offence of harming Aboriginal cultural
17 heritage under Part 5 Division 2.
18 (6) Part 7 provides for the Minister to give the following orders in
19 certain circumstances --
20 (a) stop activity orders (that expire after 60 days, unless
21 extended) specifying measures to be taken to protect
22 Aboriginal cultural heritage from harm or an imminent
23 risk of harm -- see Part 7 Division 2;
24 (b) prohibition orders (that may be of unlimited duration)
25 specifying measures to be taken to protect Aboriginal
26 cultural heritage from harm or an imminent risk of
27 harm -- see Part 7 Division 3;
28 (c) remediation orders specifying measures to be taken to
29 remediate Aboriginal cultural heritage that has been
30 harmed in contravention of this Act -- see Part 7
31 Division 4.
page 6
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Overview of Act Division 2
s. 6
1 6. Other things dealt with in Act and where to find them
2 (1) This Act also --
3 (a) sets out the objects of this Act and provides that, in
4 pursuit of those objects, the principles set out in
5 sections 9 and 10 must be observed -- see Division 3 of
6 this Part; and
7 (b) gives defined meanings to key words and phrases used
8 in this Act -- see Division 4 of this Part; and
9 (c) sets out some general matters, including, importantly,
10 how this Act applies in relation to native title rights and
11 interests -- see Division 5 of this Part; and
12 (d) provides for the endorsement of ACH protection
13 agreements -- see Part 8; and
14 (e) establishes an ACH Directory of information and
15 documents relevant to Aboriginal cultural heritage,
16 (including information about protected areas,
17 ACH permits, ACH management plans and Aboriginal
18 cultural heritage) and provides for access to the
19 information and documents -- see Part 9; and
20 (f) provides mechanisms aimed at ensuring compliance
21 with this Act, including the designation and appointment
22 of inspectors and Aboriginal inspectors, and powers of
23 inspection, entry and seizure -- see Part 10;
24 (g) provides for miscellaneous matters, including the
25 following --
26 (i) the role of the State Administrative Tribunal in
27 reviewing certain decisions -- see Part 12;
28 (ii) the making of regulations and guidelines -- see
29 Part 13 Division 3;
30 (iii) that the Act cannot be circumvented or
31 contracted out of -- see section 300.
page 7
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 2 Overview of Act
s. 7
1 (2) In relation to the transition from the Aboriginal Heritage
2 Act 1972 to this Act, this Act --
3 (a) on the day after assent day -- amends the Aboriginal
4 Heritage Act 1972 to provide that a consent given under
5 section 18 of that Act in relation to a notice given on or
6 after assent day under section 18(2) of that Act is limited
7 in duration to a maximum period of 5 years and that the
8 Minister must be notified about new information about
9 Aboriginal cultural heritage -- see Part 15 Division 2;
10 and
11 (b) on transition day -- amends the Aboriginal Heritage
12 Act 1972 to allow for a period of 6 months for decisions
13 to be made on notices given under section 18(2) of that
14 Act, and on applications for other approvals made under
15 that Act, before that day -- see Part 15 Division 3; and
16 (c) on repeal day (at the end of that 6-month period) --
17 repeals the Aboriginal Heritage Act 1972 and provides
18 arrangements to assist in completing the transition from
19 the Aboriginal Heritage Act 1972 to this Act, including
20 arrangements relating to consents given under section 18
21 of the repealed Act -- see Part 14.
22 (3) This Act makes provision in relation to the transition from the
23 Aboriginal Heritage (Marandoo) Act 1992 to this Act, and
24 provides for the repeal of that Act -- see section 312 and
25 Part 14 Division 2 Subdivision 4.
26 (4) This Act also consequentially amends various other Acts -- see
27 Part 16.
28 7. Overview is a guide
29 The overview in this Division is intended only as a guide to the
30 general scheme and effect of this Act, and does not limit or
31 otherwise affect the other provisions of this Act.
page 8
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Objects and principles Division 3
s. 8
1 Division 3 -- Objects and principles
2 8. Objects of Act
3 (1) The objects of this Act are as follows --
4 (a) to recognise --
5 (i) the fundamental importance to Aboriginal people
6 of Aboriginal cultural heritage and the central
7 role of Aboriginal cultural heritage in Aboriginal
8 communities past, present and future; and
9 (ii) that Aboriginal people have custodianship over
10 Aboriginal cultural heritage; and
11 (iii) the value of Aboriginal cultural heritage to
12 Aboriginal people and the wider Western
13 Australian community; and
14 (iv) the living, historical and traditional nature of
15 Aboriginal cultural heritage;
16 (b) to recognise, protect, conserve and preserve Aboriginal
17 cultural heritage;
18 (c) to manage activities that may harm Aboriginal cultural
19 heritage in a manner that provides --
20 (i) clarity, confidence and certainty; and
21 (ii) balanced and beneficial outcomes for Aboriginal
22 people and the wider Western Australian
23 community;
24 (d) to promote an appreciation of Aboriginal cultural
25 heritage.
26 (2) In the pursuit of the objects of this Act, the following principles
27 must be observed --
28 (a) the principles set out in section 9 relating to Aboriginal
29 cultural heritage;
page 9
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 3 Objects and principles
s. 9
1 (b) the principles set out in section 10 relating to the
2 management of activities that may harm Aboriginal
3 cultural heritage.
4 9. Principles relating to Aboriginal cultural heritage
5 The principles relating to Aboriginal cultural heritage are as
6 follows --
7 (a) Aboriginal people should be recognised as having a
8 living relationship with, and as being the primary
9 custodians of, Aboriginal cultural heritage;
10 (b) Aboriginal people should, as far as practicable, be
11 involved in --
12 (i) the recognition, protection, conservation and
13 preservation of Aboriginal cultural heritage; and
14 (ii) the management of activities that may harm
15 Aboriginal cultural heritage;
16 (c) as far as practicable --
17 (i) Aboriginal ancestral remains should be in the
18 possession, and under the custodianship and
19 control, of Aboriginal people;
20 (ii) secret or sacred objects should be in the
21 possession, and under the custodianship,
22 ownership, and control, of Aboriginal people;
23 (iii) Aboriginal ancestral remains and secret or sacred
24 objects that are not in the possession, and under
25 the custodianship and control, of Aboriginal
26 people should be returned to Aboriginal people.
page 10
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 10
1 10. Principles relating to management of activities that may
2 harm Aboriginal cultural heritage
3 The principles relating to the management of activities that may
4 harm Aboriginal cultural heritage are as follows --
5 (a) it should be recognised that --
6 (i) places, objects and landscapes have a range of
7 different values for different individuals, groups
8 or communities, and those values may change for
9 an individual, group or community over time;
10 and
11 (ii) those values includes social, spiritual, historical,
12 scientific, economic and aesthetic values;
13 (b) the range of different values for places, objects and
14 landscapes held by different individuals, groups or
15 communities, at particular times and over time, should
16 be recognised and respected;
17 (c) places and objects exist within landscapes and should be
18 considered in that context;
19 (d) as far as practicable, in order to utilise land for the
20 optimum benefit of the people of Western Australia, the
21 values held by Aboriginal people in relation to
22 Aboriginal cultural heritage should be prioritised when
23 managing activities that may harm Aboriginal cultural
24 heritage.
25 Division 4 -- Interpretation
26 Subdivision 1 -- Terms used
27 11. Terms used
28 In this Act --
29 Aboriginal ancestral remains has the meaning given in
30 paragraph (b)(iv) of the definition of Aboriginal cultural
31 heritage in section 12;
page 11
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 4 Interpretation
s. 11
1 Aboriginal cultural heritage has the meaning given in
2 section 12;
3 Aboriginal inspector means a person appointed under
4 section 225(1);
5 Aboriginal object has the meaning given in paragraph (b)(ii) of
6 the definition of Aboriginal cultural heritage in section 12;
7 Aboriginal person means a person who --
8 (a) is wholly or partly descended from the original
9 inhabitants of Australia; and
10 (b) identifies as an Aboriginal person; and
11 (c) is accepted as an Aboriginal person by an Aboriginal
12 community in which the person lives, or with which the
13 person identifies;
14 Aboriginal place has the meaning given in paragraph (b)(i) of
15 the definition of Aboriginal cultural heritage in section 12;
16 Aboriginal tradition --
17 (a) means the living, historical and traditional observances,
18 practices, customs, beliefs, values, knowledge and skills
19 of the Aboriginal people of the State generally, or of a
20 particular group or community of Aboriginal people of
21 the State; and
22 (b) includes any such observances, practices, customs,
23 beliefs, values, knowledge and skills relating to
24 particular persons, areas, objects or relationships;
25 ACH Council means the Aboriginal Cultural Heritage Council
26 established under section 20(1);
27 ACH Directory means the Aboriginal Cultural Heritage
28 Directory established and maintained under section 211(1);
29 ACH impact statement has the meaning given in section 100;
30 ACH management plan has the meaning given in section 100;
31 ACH permit has the meaning given in section 100;
page 12
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 11
1 ACH protection agreement has the meaning given in
2 section 206(1);
3 approved form means a form approved under section 307;
4 approved or authorised ACH management plan means an
5 ACH management plan --
6 (a) approved under section 150(1)(b)(i); or
7 (b) authorised under section 165(1)(b)(i);
8 area means an area of land;
9 assent day has the meaning given in section 2(a);
10 CATSI Act corporation has the meaning given in section 19;
11 CEO means the chief executive officer of the Department;
12 consult has the meaning given in section 100;
13 consultation guidelines has the meaning given in
14 section 294(b);
15 Corporations Act corporation has the meaning given in
16 section 19;
17 Crown land has the meaning given in the Land Administration
18 Act 1997 section 3(1);
19 cultural landscape has the meaning given in paragraph (b)(iii)
20 of the definition of Aboriginal cultural heritage in section 12;
21 culturally sensitive information means information that, in
22 accordance with Aboriginal tradition, is information that is not
23 to be shared with people who are not the knowledge holders for
24 the Aboriginal cultural heritage to which the information
25 relates;
26 Department means the department of the Public Service
27 principally assisting in the administration of this Act;
28 due diligence assessment has the meaning given in section 102;
29 electronic means includes --
30 (a) an electronic database or document management system;
31 and
page 13
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 4 Interpretation
s. 11
1 (b) any other means by which a document can be accessed
2 electronically;
3 guidelines means guidelines made under Part 13 Division 3
4 Subdivision 2;
5 harm, in relation to Aboriginal cultural heritage, has the
6 meaning given in section 90;
7 ILUA means an indigenous land use agreement registered on
8 the Register of Indigenous Land Use Agreements established
9 and maintained under the Native Title Act Part 8A;
10 inspector means a person designated as an inspector under
11 section 224(1);
12 instrument means any of the following --
13 (a) an ACH permit;
14 (b) an approved or authorised ACH management plan;
15 (c) a protected area order;
16 (d) a Part 7 order;
17 in the interests of the State includes --
18 (a) for the social or economic benefit of the State, including
19 for the social or economic benefit of Aboriginal people;
20 and
21 (b) the interests of future generations;
22 knowledge holder --
23 (a) in relation to an area, means an Aboriginal person
24 who --
25 (i) in accordance with Aboriginal tradition, holds
26 particular knowledge about the Aboriginal
27 cultural heritage of the area; and
28 (ii) has traditional rights, interests and
29 responsibilities in respect of Aboriginal places
30 located in, or Aboriginal objects or Aboriginal
page 14
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 11
1 ancestral remains located in or reasonably
2 believed to have originated from, the area;
3 and
4 (b) in relation to Aboriginal cultural heritage, means an
5 Aboriginal person who --
6 (i) in accordance with Aboriginal tradition, holds
7 particular knowledge about the Aboriginal
8 cultural heritage; and
9 (ii) has traditional rights, interests and
10 responsibilities in respect of the Aboriginal
11 cultural heritage;
12 knowledge holder guidelines has the meaning given in
13 section 294(c);
14 land has the meaning given in the Land Administration
15 Act 1997 section 3(1);
16 landholder --
17 (a) in relation to Crown land, means --
18 (i) if the land is in a managed reserve as defined in
19 the Land Administration Act 1997
20 section 3(1) -- the management body of that
21 reserve under that Act; or
22 (ii) if the land is vested in a person under a written
23 law other than the Land Administration
24 Act 1997 -- that person; or
25 (iii) if the land is a road as defined in the Land
26 Administration Act 1997 section 3(1) --
27 whichever of the following has the control and
28 management of the road under a written law, the
29 local government in whose district the road is
30 situated, the Commissioner of Main Roads or the
31 Minister to whom the administration of the
32 Public Works Act 1902 is committed; or
page 15
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 4 Interpretation
s. 11
1 (iv) if the land is held under a lease lawfully granted
2 by the Crown, and does not have a landholder
3 under subparagraph (i), (ii) or (iii) -- each of the
4 lessee and the Minister as defined in the Land
5 Administration Act 1997 section 3(1); or
6 (v) if the land does not otherwise have a landholder
7 under this paragraph -- the Minister as defined
8 in the Land Administration Act 1997
9 section 3(1);
10 and
11 (b) in relation to land that is not Crown land, means --
12 (i) a person who is registered under the Transfer of
13 Land Act 1893 as proprietor of an estate in fee
14 simple in the land; or
15 (ii) a person who is the holder of the freehold in the
16 land as evidenced by a memorial that is
17 registered under the Registration of Deeds
18 Act 1856; or
19 (iii) an executor or administrator of, or a person
20 appointed under a written law to act on behalf of,
21 a person referred to in subparagraph (i) or (ii); or
22 (iv) an agent or attorney of a person referred to in
23 subparagraph (i) or (ii); or
24 (v) a mortgagee in possession of the land;
25 and
26 (c) in relation to any land, means a person who --
27 (i) holds rights conferred under the Dampier to
28 Bunbury Pipeline Act 1997 section 34 in respect
29 of the land or is approved under section 34(3) of
30 that Act as the nominee of a person who holds
31 such rights; or
page 16
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 11
1 (ii) holds a distribution licence under the Energy
2 Coordination Act 1994 Part 2A as a result of
3 which the person has rights or powers in respect
4 of the land; or
5 (iii) holds, or has made an application for, a mining
6 tenement under the Mining Act 1978 in respect of
7 the land; or
8 (iv) in accordance with the Mining Act 1978, holds,
9 occupies, uses, or enjoys in respect of the land a
10 mining tenement within the meaning of the
11 Mining Act 1904; or
12 (v) holds, or has made an application for, a permit,
13 drilling reservation, lease or licence under the
14 Petroleum and Geothermal Energy Resources
15 Act 1967 in respect of the land; or
16 (vi) holds a licence under the Petroleum Pipelines
17 Act 1969 section 10 in respect of the land or has
18 authority under section 7 of that Act to enter
19 upon the land; or
20 (vii) holds a licence under the Water Services
21 Act 2012 as a result of which the person has
22 rights or powers in respect of the land;
23 local ACH service, for an area, means the person designated
24 under section 37(1) as the local Aboriginal cultural heritage
25 service to provide local Aboriginal cultural heritage service
26 functions for the area under Part 2 Division 3;
27 local ACH service (fees) guidelines has the meaning given in
28 section 294(d);
29 local ACH service functions has the meaning given in
30 section 19;
31 located has the meaning given in section 13;
32 material, in relation to harm to Aboriginal cultural heritage, has
33 the meaning given in section 91(2);
page 17
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 4 Interpretation
s. 11
1 Native Title Act means the Native Title Act 1993
2 (Commonwealth);
3 native title party, in relation to an area, means --
4 (a) a registered native title body corporate for the area; or
5 (b) a registered native title claimant for the area; or
6 (c) a person who was a registered native title body
7 corporate for the area or a registered native title claimant
8 for the area but --
9 (i) under an ILUA, has surrendered their native title
10 rights and interests in respect of the area; or
11 (ii) whose native title rights and interests in respect
12 of the area have been compulsorily acquired or
13 otherwise been extinguished;
14 or
15 (d) if the area is the subject of a settlement ILUA -- a
16 regional corporation in relation to that area;
17 native title representative body means --
18 (a) a body that is recognised as a representative body under
19 the Native Title Act section 203AD; or
20 (b) a person or body funded under the Native Title Act
21 section 203FE to perform all, or specified, functions of a
22 body referred to in paragraph (a);
23 native title rights and interests has the meaning given in the
24 Native Title Act section 223;
25 new information about Aboriginal cultural heritage has the
26 meaning given in section 178;
27 occupier --
28 (a) in relation to land, means a person who is, or is entitled
29 to be, in occupation or control of the land, whether or
30 not the person is a landholder of the land; and
page 18
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 11
1 (b) in relation to a place, means a person who has, or
2 appears to have, control or management of the place;
3 and
4 (c) in relation to a vehicle, means a person who is, or
5 appears to be, in charge of the vehicle;
6 outstanding significance has the meaning given in section 69;
7 Part 7 order means --
8 (a) a stop activity order; or
9 (b) a prohibition order; or
10 (c) a remediation order;
11 parties has the meaning given in section 100;
12 persons to be consulted has the meaning given in section 100;
13 persons to be notified has the meaning given in section 100;
14 prescribed means prescribed by the regulations;
15 prohibition order means an order given under Part 7 Division 3;
16 proponent has the meaning given in section 100;
17 proposed activity has the meaning given in section 100;
18 protected area means an area declared as a protected area by an
19 order under section 82(1);
20 protected area order means an order made under Part 4
21 Division 5;
22 protected area order guidelines has the meaning given in
23 section 294(e);
24 public authority means --
25 (a) a Minister of the State; or
26 (b) a department or an organisation as those terms are
27 defined in the Public Sector Management Act 1994
28 section 3(1); or
29 (c) an entity listed in the Public Sector Management
30 Act 1994 Schedule 1;
31 public notice means a notice published under section 282;
page 19
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 4 Interpretation
s. 11
1 regional corporation has the meaning given in section 40(2);
2 registered native title body corporate has the meaning given in
3 the Native Title Act section 253;
4 registered native title claimant has the meaning given in the
5 Native Title Act section 253;
6 related agreement has the meaning given in section 100;
7 remediation order means an order given under Part 7
8 Division 4;
9 repeal day has the meaning given in section 2(d);
10 secret or sacred object means an Aboriginal object that is secret
11 or sacred to an Aboriginal person, group or community in
12 accordance with Aboriginal tradition;
13 serious, in relation to harm to Aboriginal cultural heritage, has
14 the meaning given in section 91(1);
15 settlement ILUA has the meaning given in section 40(2);
16 specified, in relation to an instrument or another document,
17 means specified in the instrument or document, as is relevant;
18 State significance has the meaning given in section 100;
19 State significance guidelines has the meaning given in
20 section 294(f);
21 stop activity order means an order given under Part 7
22 Division 2;
23 tier 1 activity has the meaning given in section 100;
24 tier 2 activity has the meaning given in section 100;
25 tier 3 activity has the meaning given in section 100;
26 traditional rights, interests and responsibilities, in relation to
27 an Aboriginal person, group or community, means the rights,
28 interests and responsibilities that the person, group or
29 community has in accordance with Aboriginal tradition;
30 transition day has the meaning given in section 2(c);
page 20
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Interpretation Division 4
s. 12
1 vehicle means any thing capable of transporting people or things
2 by air, road, rail or water, and it does not matter how the thing is
3 moved or propelled;
4 WA Museum means The Western Australian Museum
5 constituted under the Museum Act 1969.
6 Subdivision 2 -- Other key terms
7 12. Meaning of Aboriginal cultural heritage and related terms
8 In this Act --
9 Aboriginal cultural heritage --
10 (a) means the tangible and intangible elements that are
11 important to the Aboriginal people of the State, and are
12 recognised through social, spiritual, historical, scientific
13 or aesthetic values, as part of Aboriginal tradition; and
14 (b) includes the following --
15 (i) an area (an Aboriginal place) in which tangible
16 elements of Aboriginal cultural heritage are
17 present;
18 (ii) an object (an Aboriginal object) that is a tangible
19 element of Aboriginal cultural heritage;
20 (iii) a group of areas (a cultural landscape)
21 interconnected through tangible or intangible
22 elements of Aboriginal cultural heritage;
23 (iv) the bodily remains of a deceased Aboriginal
24 person (Aboriginal ancestral remains), other
25 than remains that are buried in a cemetery where
26 non-Aboriginal persons are also buried or
27 remains that have been dealt with or are to be
28 dealt with under a law of the State relating to the
29 burial of the bodies of deceased persons.
page 21
Aboriginal Cultural Heritage Bill 2021
Part 1 Preliminary
Division 5 Other provisions of general application
s. 13
1 13. Meaning of located in relation to Aboriginal cultural
2 heritage
3 Aboriginal cultural heritage is located in an area if --
4 (a) the area is, or is part of, an Aboriginal place or a cultural
5 landscape; or
6 (b) there are Aboriginal ancestral remains or an Aboriginal
7 object in the area.
8 Division 5 -- Other provisions of general application
9 14. Act binds Crown
10 This Act binds the Crown in right of Western Australia and, so
11 far as the legislative power of the Parliament permits, the Crown
12 in all its other capacities.
13 15. Act does not apply to certain objects
14 This Act does not apply to or in relation to an object that --
15 (a) is part of a collection made and preserved by the WA
16 Museum under the Museum Act 1969 section 9; or
17 (b) was made for the purpose of sale, unless the object is, or
18 has been, a secret or sacred object.
19 16. Native title rights and interests
20 (1) In this section --
21 affect has the meaning given in the Native Title Act
22 section 227.
23 (2) This Act is not intended to affect native title rights and interests
24 otherwise than in accordance with the Native Title Act.
25 (3) This Act must be interpreted in a way that does not prejudice
26 native title rights and interests to the extent that those rights and
27 interests are recognised and protected by the Native Title Act.
page 22
Aboriginal Cultural Heritage Bill 2021
Preliminary Part 1
Other provisions of general application Division 5
s. 17
1 17. Coroners Act 1996 not affected
2 Subject to section 59, nothing in this Act affects the operation of
3 the Coroners Act 1996.
4 18. Freedom of Information Act 1992 does not apply to
5 culturally sensitive information
6 The Freedom of Information Act 1992 (FOI Act) does not apply
7 to information, documents or other records under this Act
8 (whether or not on the ACH Directory) to the extent that the
9 FOI Act would otherwise enable or require the disclosure of
10 culturally sensitive information.
page 23
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 1 Interpretation
s. 19
1 Part 2 -- Aboriginal Cultural Heritage Council and
2 local Aboriginal cultural heritage services
3 Division 1 -- Interpretation
4 19. Terms used
5 In this Part --
6 CATSI Act means the Corporations (Aboriginal and Torres
7 Strait Islander) Act 2006 (Commonwealth);
8 CATSI Act corporation means a corporation registered under
9 the CATSI Act;
10 committee means a committee of the ACH Council established
11 under section 30(1);
12 Corporations Act corporation means a corporation that --
13 (a) is registered under the Corporations Act 2001
14 (Commonwealth); and
15 (b) satisfies the Indigeneity requirement under the CATSI
16 Act section 29-5;
17 local ACH service functions, in relation to a local ACH service,
18 means the functions set out in section 48;
19 member means a member of the ACH Council.
20 Division 2 -- Aboriginal Cultural Heritage Council
21 Subdivision 1 -- ACH Council established
22 20. ACH Council established
23 (1) A body called the Aboriginal Cultural Heritage Council is
24 established.
25 (2) The ACH Council is an agent of the State and has the status,
26 immunities and privileges of the State.
page 24
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Aboriginal Cultural Heritage Council Division 2
s. 21
1 21. Composition of ACH Council
2 (1) The ACH Council is comprised of the following members --
3 (a) 2 persons appointed by the Minister to be chairpersons,
4 each of whom is an Aboriginal person --
5 (i) 1 of whom has traditional rights, interests and
6 responsibilities in respect of women's business;
7 and
8 (ii) 1 of whom has traditional rights, interests and
9 responsibilities in respect of men's business;
10 and
11 (b) between 4 and 9 other persons appointed by the
12 Minister.
13 (2) The Minister must seek nominations, in accordance with the
14 regulations, of persons for appointment as members.
15 (3) The Minister must ensure that --
16 (a) the members have, between them, such knowledge,
17 skills and experience as the Minister considers
18 appropriate to enable them to effectively perform the
19 functions of the ACH Council under this Act; and
20 (b) as far as practicable --
21 (i) the majority of the members are Aboriginal
22 people; and
23 (ii) the gender composition of the ACH Council is
24 balanced.
25 Subdivision 2 -- Functions and powers
26 22. Functions of ACH Council
27 (1) The ACH Council has the following functions --
28 (a) promoting public awareness, understanding and
29 appreciation of Aboriginal cultural heritage in the State;
page 25
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 2 Aboriginal Cultural Heritage Council
s. 22
1 (b) promoting the role of Aboriginal people in --
2 (i) the recognition, protection, conservation and
3 preservation of Aboriginal cultural heritage; and
4 (ii) the management of activities that may harm
5 Aboriginal cultural heritage; and
6 (iii) the administration of this Act;
7 (c) proactively assisting in the recognition, protection,
8 conservation, preservation and management of
9 Aboriginal cultural heritage, including, if relevant, by
10 developing guidance materials;
11 (d) functions under Division 3 Subdivision 2 in relation to
12 the designation of persons as local ACH services for
13 different areas of the State;
14 (e) providing advice, and taking appropriate action, under
15 Part 3 in relation to Aboriginal ancestral remains and
16 secret or sacred objects;
17 (f) making decisions under Part 6 in relation to ACH
18 permits and ACH management plans;
19 (g) making recommendations relating to prohibition orders
20 and remediation orders under Part 7;
21 (h) making decisions relating to the endorsement of ACH
22 protection agreements under Part 8;
23 (i) establishing and maintaining the ACH Directory under
24 Part 9;
25 (j) providing advice to the Minister as described in
26 subsection (2);
27 (k) other functions conferred on the ACH Council under
28 this Act;
29 (l) other functions, if any, prescribed for the purposes of
30 this paragraph.
page 26
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Aboriginal Cultural Heritage Council Division 2
s. 23
1 (2) The ACH Council must provide advice to the Minister, at the
2 Minister's request or on its own initiative --
3 (a) generally in relation to the recognition, protection,
4 conservation, preservation and management of
5 Aboriginal cultural heritage; and
6 (b) on any other matter relating to the exercise of the
7 powers of the Minister under this Act.
8 23. Powers of ACH Council
9 The ACH Council has all the powers it needs to perform its
10 functions.
11 24. Delegation by ACH Council
12 (1) The ACH Council may delegate a power or duty of the Council
13 under another provision of this Act, other than a power or duty
14 under a provision listed in the Table, to any of the following --
15 (a) a member;
16 (b) a member of staff provided to the Council under
17 section 25;
18 (c) a committee.
19 Table
s. 36(1) s. 43(2)
s. 44(1) s. 50(2)
s. 76 s. 79(1), (2) or (3)
s. 150(1) s. 161(1)
s. 162(1) s. 169
s. 176(1)(b)
20 (2) A delegation must be in writing executed by the ACH Council.
page 27
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 2 Aboriginal Cultural Heritage Council
s. 25
1 (3) A person to whom, or a committee to which, a power or duty is
2 delegated under this section cannot delegate that power or duty.
3 (4) A person or committee exercising or performing a power or
4 duty that has been delegated to the person or committee under
5 this section is taken to do so in accordance with the terms of the
6 delegation unless the contrary is shown.
7 (5) This section does not limit the ability of the ACH Council to
8 perform a function through --
9 (a) a member of staff provided to the Council under
10 section 25; or
11 (b) an agent of the Council.
12 Subdivision 3 -- Staff and assistance
13 25. Facilities and services
14 (1) The Minister must ensure that the ACH Council is provided
15 with the facilities and services, and other resources and support,
16 that are reasonably necessary to enable the Council to perform
17 its functions.
18 (2) Without limiting subsection (1), the Minister may, by
19 arrangement with the Department, and on such terms and
20 conditions as may be mutually arranged with the ACH Council,
21 allow the Council to make use, either full-time or part-time,
22 of --
23 (a) the services of any officer or employee employed in the
24 Department; and
25 (b) any facilities or services of the Department.
26 26. Assistance
27 (1) The ACH Council may, with the approval of the Minister,
28 co-opt any person with specialist knowledge, skills or
29 experience to assist the Council in a particular matter.
page 28
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Aboriginal Cultural Heritage Council Division 2
s. 27
1 (2) A person co-opted to assist the ACH Council may attend
2 meetings of the Council and participate in its deliberations but
3 cannot vote at a meeting of the Council.
4 (3) A person co-opted to assist the ACH Council is entitled to be
5 paid the remuneration and allowances determined by the
6 Minister on the recommendation of the Public Sector
7 Commissioner unless the person is a public service officer.
8 Subdivision 4 -- Accountability and financial arrangements
9 27. Minister may give directions
10 (1) The Minister may give a written direction to the ACH Council
11 in respect of the performance of its functions, and the Council
12 must give effect to the direction.
13 (2) However, a direction under subsection (1) cannot be given in
14 respect of the performance of a function in relation to any of the
15 following --
16 (a) a particular person or matter;
17 (b) a particular ACH permit or approved or authorised ACH
18 management plan;
19 (c) a particular application for an ACH permit or for the
20 approval or authorisation of an ACH management plan;
21 (d) the evaluation of the characteristics or significance of
22 Aboriginal cultural heritage;
23 (e) the giving of advice, or making of a recommendation, to
24 the Minister under this Act.
25 (3) Subsection (2) does not apply to a direction of the Minister
26 referred to in a provision listed in the Table.
27 Table
s. 46(3) s. 78(3) or (4)(b)
s. 81(3) s. 119(5)
page 29
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 2 Aboriginal Cultural Heritage Council
s. 28
s. 126(5) s. 131(3)
s. 150(5) s. 155(2)
s. 162(6)
1 (4) The Minister must cause a direction given under subsection (1)
2 to be laid before each House of Parliament, or dealt with under
3 section 308, within 14 days after the direction is given.
4 (5) Subsection (4) does not apply to a direction of the Minister --
5 (a) referred to in a provision listed in the Table to
6 subsection (3); or
7 (b) given under section 295 or 299(1) or (3)(b)(i).
8 (6) The text of a direction given under subsection (1) during a
9 financial year must be included in the annual report submitted
10 by the ACH Council for that financial year under section 29.
11 28. Minister to have access to information
12 (1) In this section --
13 document includes any tape, disk or other device or medium on
14 which information is recorded or stored;
15 information means information specified, or of a description
16 specified, by the Minister that relates to the functions of the
17 ACH Council.
18 (2) The Minister is entitled --
19 (a) to have access to information in the possession of the
20 ACH Council; and
21 (b) if the information is in or on a document -- to have
22 access to, and make and retain copies of, that document.
23 (3) For the purposes of subsection (2), the Minister may --
24 (a) request the ACH Council to give information or a
25 document to the Minister; and
page 30
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Aboriginal Cultural Heritage Council Division 2
s. 29
1 (b) request the Council to give the Minister access to
2 information or a document; and
3 (c) for the purposes of paragraph (b), make use of staff and
4 facilities provided to the Council under section 25 to
5 obtain information or a document and give it to the
6 Minister.
7 (4) The ACH Council must comply with a request under
8 subsection (3) and make staff and facilities provided to the
9 Council available to the Minister for the purposes of
10 subsection (3)(c).
11 Subdivision 5 -- Other matters
12 29. Annual report of ACH Council
13 (1) As soon as practicable after each 1 July, and not later than
14 28 September, the ACH Council must prepare and submit to the
15 Minister an annual report on activities, operations and
16 proceedings carried out by the Council during the previous
17 financial year.
18 (2) The report required under this section must be prepared and
19 dealt with in conjunction with the annual report for the relevant
20 financial year prepared under the Financial Management
21 Act 2006 section 61 by the accountable authority of the
22 Department.
23 30. Committees
24 (1) The ACH Council may establish committees to assist it in
25 performing its functions.
26 (2) The ACH Council may discharge, alter or reconstitute a
27 committee.
28 (3) The ACH Council may --
29 (a) determine the functions, membership and constitution of
30 a committee; and
page 31
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 2 Aboriginal Cultural Heritage Council
s. 31
1 (b) appoint members of the Council or other persons as it
2 thinks fit to be members of a committee.
3 (4) The ACH Council may give directions to a committee on the
4 following matters --
5 (a) the functions to be performed by the committee;
6 (b) the committee's procedures;
7 (c) reporting by the committee on the performance of its
8 functions.
9 (5) A committee must comply with a direction of the ACH Council.
10 (6) A committee may determine its own procedures but the
11 procedures must be consistent with any directions of the ACH
12 Council and the terms of any delegation under which the
13 committee is acting.
14 (7) A committee must --
15 (a) keep minutes of its meetings to a standard approved by
16 the ACH Council; and
17 (b) provide the Council with a copy of the minutes of each
18 meeting.
19 31. Procedures
20 Subject to the regulations, the ACH Council may determine its
21 own procedures.
22 32. Remuneration of members of ACH Council or committee
23 A member of the ACH Council, or of a committee, is entitled to
24 be paid the remuneration and allowances determined by the
25 Minister on the recommendation of the Public Sector
26 Commissioner unless the member is a public service officer.
page 32
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 33
1 33. Impersonating member of ACH Council
2 A person must not falsely represent, by words or conduct, that
3 the person is a member of the ACH Council.
4 Penalty: a fine of $5 000.
5 Division 3 -- Local Aboriginal cultural heritage services
6 Subdivision 1 -- Purpose and nature of local ACH services
7 34. Purpose of local ACH service
8 A person designated as a local ACH service for an area of the
9 State --
10 (a) must, as far as practicable, provide local ACH service
11 functions for that area; and
12 (b) may charge a fee for services that it provides in
13 connection with the provision of local ACH service
14 functions in accordance with Subdivision 3.
15 35. Nature of local ACH service
16 (1) A person designated as a local ACH service is not an
17 organisation for the purposes of the Public Sector Management
18 Act 1994.
19 (2) The Public Sector Management Act 1994 does not apply to, or
20 in relation to, the designation of a person as a local ACH service
21 and a local ACH service is not subject to that Act.
22 (3) A person designated as a local ACH service is not an agent of
23 the State and does not have the status, immunities and privileges
24 of the State.
page 33
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 36
1 Subdivision 2 -- Designation as local ACH service
2 36. ACH Council must designate local ACH service
3 (1) The ACH Council must, as far as practicable, designate persons
4 as local ACH services for different areas of the State.
5 (2) A person may be designated by the ACH Council as a local
6 ACH service for more than 1 area.
7 (3) The ACH Council can designate only 1 local ACH service for
8 an area.
9 37. Designation of local ACH service
10 (1) The ACH Council may designate a person as the local
11 Aboriginal cultural heritage service for an area if --
12 (a) the person --
13 (i) has applied under section 38 to be designated as
14 the local ACH service for the area; and
15 (ii) meets the requirements set out in section 39;
16 and
17 (b) the Council determines that the person has priority for
18 designation for the area as set out in section 40(1).
19 (2) If the ACH Council decides not to designate a person who has
20 applied under section 38 to be designated as the local
21 ACH service for an area, the Council must advise the Minister
22 in writing of the decision and the reasons for the decision.
23 38. Application to be designated as local ACH service
24 A person described in section 40(1) may apply, in the approved
25 form, to the ACH Council to be designated as the local
26 ACH service for an area.
page 34
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 39
1 39. Requirements for designation as local ACH service
2 The requirements for a person to be designated as the local
3 ACH service for an area are that, in the opinion of the
4 ACH Council, the person --
5 (a) has comprehensive knowledge of the local Aboriginal
6 community in the area; and
7 (b) has the endorsement of any registered native title body
8 corporate, or registered native title claimant, for the area
9 or a part of the area; and
10 (c) has sufficient support of the local Aboriginal community
11 in the area to enable it to provide local ACH service
12 functions for the area; and
13 (d) for the purpose of the management of activities that may
14 harm Aboriginal cultural heritage located in the area
15 under Part 6 -- has the necessary knowledge and skills
16 to engage and negotiate, as is appropriate, with --
17 (i) proponents carrying out, or intending to carry
18 out, activities in the area; and
19 (ii) native title parties and knowledge holders for the
20 area, or a part of the area;
21 and
22 (e) has sufficient knowledge, skills and resources to provide
23 local ACH service functions for the area; and
24 (f) has in place a fee structure for the fees to be charged for
25 services provided in connection with the provision of
26 local ACH service functions for the area that --
27 (i) is reasonable; and
28 (ii) complies with the local ACH service (fees)
29 guidelines;
30 and
31 (g) satisfies the other requirements, if any, prescribed for
32 the purposes of this paragraph.
page 35
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 40
1 40. Order of priority of designation
2 (1) The order of priority for designation as a local ACH service for
3 an area is as follows --
4 (a) if the area is the subject of a settlement ILUA -- a
5 regional corporation in relation to the area or a part of
6 the area;
7 (b) a registered native title body corporate for the area or a
8 part of the area;
9 (c) a person who was a registered native title body
10 corporate for the area or a part of the area but --
11 (i) under an ILUA, has surrendered their native title
12 rights and interests in respect of the area or the
13 part of the area; or
14 (ii) the person's native title rights and interests in
15 respect of the area or the part of the area have
16 been compulsorily acquired or otherwise been
17 extinguished;
18 (d) a CATSI Act corporation or a Corporations Act
19 corporation that --
20 (i) represents the local Aboriginal community in the
21 area; or
22 (ii) has members that are knowledge holders for the
23 area;
24 (e) a native title representative body for the area.
25 (2) In subsection (1)(a) --
26 regional corporation means --
27 (a) in relation to an area the subject of a settlement ILUA
28 referred to in paragraph (a) of the definition of
29 settlement ILUA -- a Regional Corporation, as defined
30 in the Land Administration (South West Native Title
31 Settlement) Act 2016 section 3, appointed in respect of
32 that area; or
page 36
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 41
1 (b) in relation to the area the subject of the settlement ILUA
2 referred to in paragraph (b) of the definition of
3 settlement ILUA -- the Regional Entity, as defined in
4 that ILUA; or
5 (c) in relation to an area the subject of a settlement ILUA
6 referred to in paragraph (c) of the definition of
7 settlement ILUA -- a prescribed corporation that has
8 functions in respect of the area under, or for the
9 purposes of, the settlement ILUA;
10 settlement ILUA means --
11 (a) a settlement ILUA within the meaning of the Land
12 Administration (South West Native Title Settlement)
13 Act 2016 section 3; or
14 (b) the ILUA named the Yamatji Nation Indigenous Land
15 Use Agreement registered on 30 July 2020; or
16 (c) another prescribed ILUA under which native title rights
17 and interests have been surrendered.
18 (3) For the purposes of subsection (1)(d)(i), a CATSI Act
19 corporation or a Corporations Act corporation represents the
20 local Aboriginal community in an area in the circumstances
21 prescribed.
22 41. ACH Council must give public notice of designation
23 (1) The ACH Council must give public notice of the designation of
24 a person as the local ACH service for an area.
25 (2) The notice must include the following --
26 (a) a description of the area for which the person is
27 designated as the local ACH service sufficient to
28 identify it;
29 (b) the name of the person designated;
30 (c) details of how the person may be contacted;
31 (d) the other information, if any, prescribed for the purposes
32 of this paragraph.
page 37
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 42
1 42. Duration of designation as local ACH service for area
2 (1) The designation of a person as the local ACH service for an
3 area --
4 (a) takes effect on the day on which the ACH Council gives
5 public notice under section 41(1) or on a later day, if
6 any, specified in the notice; and
7 (b) is of effect, other than during any period when the
8 designation is suspended under section 43(2)(a), until
9 whichever of the following occurs first --
10 (i) if the person is a CATSI Act corporation -- the
11 person is deregistered under the CATSI Act;
12 (ii) if the person is a Corporations Act
13 corporation -- the person is deregistered under
14 the Corporations Act 2001 (Commonwealth);
15 (iii) the designation is cancelled under section 43(1)
16 or (2)(b).
17 (2) The designation of a person as the local ACH service for an area
18 is not affected by the amendment of the area under section 44
19 and the person is taken to be designated as the local ACH
20 service for the area as amended.
21 43. Suspension or cancellation of designation as local
22 ACH service for area or part of area
23 (1) The ACH Council may, on the written request of a person who
24 is designated as the local ACH service for an area, cancel the
25 designation in relation to the area or a part of the area.
26 (2) The Minister or the ACH Council may, by written notice given
27 to a person who is designated as the local ACH service for an
28 area, take either of the following actions --
29 (a) suspend the designation in relation to the area or a part
30 of the area for a specified period;
31 (b) cancel the designation in relation to the area or a part of
32 the area.
page 38
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 43
1 (3) A notice under subsection (2) may be given only if the Minister
2 or the ACH Council --
3 (a) is satisfied that the person --
4 (i) no longer meets the requirements to be
5 designated as the local ACH service for the area
6 as set out in section 39; or
7 (ii) is no longer highest in the order of priority as set
8 out in section 40(1) of those persons that have
9 applied to be designated as the local ACH
10 service for the area;
11 or
12 (b) determines that the person designated as the local
13 ACH service for the area is not, as far as practicable,
14 providing local ACH service functions for the area or a
15 part of the area, as required under section 34(a).
16 (4) A notice given under subsection (2) --
17 (a) must set out the grounds on which the action is taken;
18 and
19 (b) takes effect on the day on which the notice is given
20 under that subsection or on a later day, if any, specified
21 in the notice.
22 (5) Before taking action under subsection (2), the Minister or the
23 ACH Council must give the person designated as the local
24 ACH service for the area --
25 (a) written notice of --
26 (i) the action that the Minister or the Council
27 proposes to take; and
28 (ii) the grounds on which the Minister or the Council
29 proposes to take that action;
30 and
31 (b) a reasonable opportunity to be heard on the matter.
page 39
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 44
1 (6) If the designation of a person as the local ACH service for an
2 area or a part of an area is suspended, the designation is of no
3 effect during the period of the suspension.
4 (7) If the Minister or the ACH Council suspends or cancels the
5 designation of a person as the local ACH service for an area or a
6 part of an area under this section the Council must give public
7 notice of the suspension or cancellation.
8 44. Change to area for local ACH service
9 (1) The ACH Council may amend the area for which a person is
10 designated as the local ACH service.
11 (2) An amendment of the area may be --
12 (a) made at the request of the person designated as the local
13 ACH service; or
14 (b) initiated by the ACH Council.
15 (3) If the proposed amendment is not at the request of the person
16 designated as the local ACH service, the ACH Council must
17 give that person --
18 (a) written notice of --
19 (i) its intention to amend the area for which the
20 person is designated; and
21 (ii) the reasons for the proposed amendment;
22 and
23 (b) a reasonable opportunity to be heard on the matter.
24 (4) The ACH Council may amend the area for which a person is
25 designated as the local ACH service only if the Council is
26 satisfied that --
27 (a) the person --
28 (i) is in the order of priority for designation for the
29 amended area as set out in section 40(1); and
page 40
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 45
1 (ii) meets the requirements to be designated as the
2 local ACH service for the amended area as set
3 out in section 39;
4 and
5 (b) there is no other person designated as a local
6 ACH service for any part of the amended area.
7 (5) If the ACH Council amends the area for which a person is
8 designated as the local ACH service, the Council must give
9 public notice of the amended area.
10 45. Change to local ACH service
11 (1) The ACH Council may, on its own initiative or at the request of
12 a person designated as a local ACH service for an area, amend
13 any of the following referred to in the public notice of the
14 designation given under section 41(1) --
15 (a) the name of the person;
16 (b) any other detail or information described in
17 section 41(2)(c) or (d).
18 (2) If the ACH Council amends details or information under
19 subsection (1), the Council must give public notice of the
20 amended details or information.
21 46. Objection to decision of ACH Council
22 (1) A person who applies under section 38 to be designated as the
23 local ACH service for an area may, within the prescribed
24 period, object in writing to the Minister if the ACH Council
25 refuses to designate the person as the local ACH service for the
26 area.
27 (2) A person designated as a local ACH service for an area may,
28 within the prescribed period, object in writing to the Minister if
29 the ACH Council --
30 (a) refuses to cancel the designation in relation to the area
31 or a part of an area under section 43(1); or
page 41
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 46
1 (b) suspends or cancels the designation in relation to the
2 area or a part of the area under section 43(2); or
3 (c) refuses to amend the area for which the person is
4 designated in response to a request under
5 section 44(2)(a); or
6 (d) amends the area for which the person is designated on
7 the initiative of the Council under section 44(2)(b); or
8 (e) refuses to approve a variation of the fee structure for
9 services provided by the person in response to a request
10 under section 50(1).
11 (3) On receipt of an objection under this section, the Minister must
12 give a written direction to the ACH Council to provide to the
13 Minister --
14 (a) the information, if any, that was provided to the Council
15 at the time when the decision to which the objection
16 relates was made; and
17 (b) the reasons of the Council for the decision, and any
18 other information that, in the opinion of the Council, is
19 relevant to the decision.
20 (4) The Minister may make a written request to a person who has
21 objected under this section to do any of the following --
22 (a) provide the Minister with any further information
23 relevant to the objection that the Minister requires to
24 assess the objection;
25 (b) verify any further information by statutory declaration.
26 (5) Having considered the information provided by the
27 ACH Council under subsection (3) and any further information
28 provided in response to a request under subsection (4) the
29 Minister may --
30 (a) confirm the decision made by the Council; or
31 (b) make another decision and substitute it for the decision
32 made by the Council.
page 42
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 47
1 (6) The Minister must ensure that written notice of a decision of the
2 Minister under this section is given to the person who made the
3 objection.
4 47. Notice of decision must be given
5 (1) The ACH Council must give to a person written notice of a
6 decision of the Council if the person has a right under
7 section 46(1) or (2) to object to the Minister about the decision.
8 (2) The notice must be given within 14 days after the decision is
9 made.
10 (3) The notice must contain the following --
11 (a) a description of the decision;
12 (b) short particulars of the reasons for the decision;
13 (c) a statement that the person has a right to object to the
14 Minister about the decision.
15 Subdivision 3 -- Local ACH service functions and related provisions
16 48. Local ACH service functions
17 (1) Local ACH service functions that are, as far as practicable, to be
18 provided in relation to an area by the person designated as the
19 local ACH service for that area are as follows--
20 (a) for the purpose of the management of activities that may
21 harm Aboriginal cultural heritage located in the area
22 under Part 6 -- to engage and negotiate, as is
23 appropriate, with --
24 (i) proponents carrying out, or intending to carry
25 out, activities in the area; and
26 (ii) native title parties and knowledge holders for the
27 area, or a part of the area;
28 (b) to make, or to facilitate the making of,
29 ACH management plans in respect of the area;
page 43
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 48
1 (c) to provide advice to proponents carrying out, or
2 intending to carry out, activities in the area about
3 whether Aboriginal cultural heritage is located in the
4 area and the characteristics of Aboriginal cultural
5 heritage located in the area;
6 (d) to provide information to the ACH Council about
7 Aboriginal cultural heritage located in the area to assist
8 the Council to perform its functions under this Act, and
9 to improve the accuracy of the ACH Directory;
10 (e) to make submissions, and provide information, to the
11 Council about proposals for activities to be carried out
12 in the area and the management of those activities so as
13 to avoid, or minimise, the risk of harm being caused to
14 Aboriginal cultural heritage by the activities;
15 (f) to engage, as appropriate, with other local
16 ACH services, native title parties and knowledge holders
17 about Aboriginal cultural heritage that extends beyond
18 the geographic boundaries of the area;
19 (g) to undertake, either directly or indirectly, on-ground
20 identification, maintenance, conservation and
21 preservation of Aboriginal cultural heritage located in
22 the area;
23 (h) to report to the Council about matters related to the
24 provision of local ACH service functions as required by
25 the regulations;
26 (i) to undertake, either directly or indirectly, any activity in
27 relation to protecting, preserving, conserving or
28 managing Aboriginal cultural heritage, agreed under an
29 approved or authorised ACH management plan to be a
30 function of the person designated as the local ACH
31 service for the purposes of this paragraph;
32 (j) other functions, if any, prescribed for the purposes of
33 this paragraph.
page 44
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 49
1 (2) A person designated as a local ACH service must use its best
2 endeavours to provide the functions set out in subsection (1) in a
3 timely manner.
4 49. Fee for services provided by local ACH service
5 (1) Subject to subsection (3), a person designated as a local ACH
6 service may charge a fee for services that it provides in
7 connection with any local ACH service functions that it
8 provides in relation to the area for which it is designated.
9 (2) A fee charged must be in accordance with --
10 (a) the fee structure that the person designated as a local
11 ACH service had in place at the time it was designated;
12 or
13 (b) if a variation of the fee structure is later approved by the
14 ACH Council under section 50(2) -- the fee structure as
15 varied.
16 (3) However, a person designated as a local ACH service cannot
17 charge a fee for services that it provides to the Department or
18 the ACH Council in connection with any local ACH service
19 functions.
20 (4) If a fee for services charged by a person designated as a local
21 ACH service under subsection (1) is not paid, the person may
22 recover the fee as a debt due in a court of competent
23 jurisdiction.
24 50. Variation of fee structure for services provided by local
25 ACH service
26 (1) A person designated as a local ACH service may request the
27 ACH Council to approve a variation of the fee structure for
28 services that it provides in connection with the provision of any
29 local ACH service functions.
page 45
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 51
1 (2) In response to a request under subsection (1), the ACH Council
2 may approve the variation of the fee structure if the Council is
3 satisfied that the fee structure as so varied --
4 (a) is reasonable; and
5 (b) complies with the local ACH service (fees) guidelines.
6 Subdivision 4 -- Funding for local ACH services
7 51. Funding for local ACH services
8 (1) The CEO may, with the prior written approval of the Minister,
9 decide that funding is to be paid to a person designated as the
10 local ACH service for an area for the purpose of enabling the
11 person to provide local ACH service functions for the area.
12 (2) If the CEO decides that funding is to be paid under
13 subsection (1) to a person designated as the local ACH service
14 for an area, the CEO must make a written determination setting
15 out --
16 (a) the amount of money to be paid as funding to the person
17 (the funding sum); and
18 (b) the manner in which the funding sum must be paid to
19 the person, including whether the funding sum must be
20 paid --
21 (i) in a lump sum or in periodic payments; and
22 (ii) in relation to all or part of a financial year, or
23 another period not exceeding 3 years (the
24 funding period);
25 and
26 (c) the conditions, if any, to which the payment of the
27 funding sum is subject, including, but not limited to the
28 following --
29 (i) the purpose for which the funding sum, or a part
30 of it, must be spent;
page 46
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Council and local Aboriginal Part 2
cultural heritage services
Local Aboriginal cultural heritage services Division 3
s. 51
1 (ii) the provision of information relating to the
2 expenditure of the funding sum, including the
3 production and publication of financial
4 statements;
5 (iii) the continuing satisfactory performance by the
6 person in providing local ACH service functions
7 for the area.
8 (3) A determination under subsection (2) must be made in
9 accordance with the criteria, if any, prescribed.
10 (4) In addition to any condition imposed under subsection (2)(c),
11 the payment of a funding sum is subject to the condition that if
12 the designation of the person to whom the funding sum was paid
13 is cancelled under section 43 during the funding period then an
14 amount equal to any uncommitted amount of the funding sum at
15 the time when the designation is cancelled must be paid to the
16 ACH Council.
17 (5) In subsection (4) --
18 uncommitted amount, in relation to a funding sum paid to a
19 person designated as a local ACH service for an area, means the
20 difference, if any, between --
21 (a) the amount of the funding sum that has been paid to the
22 person at the time when the designation is cancelled;
23 and
24 (b) the amount of the funding sum that, at the time when the
25 designation is cancelled --
26 (i) has already been spent for the purpose of
27 enabling the person to provide local ACH service
28 functions for the area; or
29 (ii) for which liability has already been incurred for
30 the purpose of enabling the person to provide
31 local ACH service functions for the area.
32 (6) The CEO must ensure that a person designated as a local ACH
33 service who is paid a funding sum under this section is given
page 47
Aboriginal Cultural Heritage Bill 2021
Part 2 Aboriginal Cultural Heritage Council and local Aboriginal
cultural heritage services
Division 3 Local Aboriginal cultural heritage services
s. 52
1 written notice of the conditions to which the payment of the
2 funding sum to the person is subject under subsections (2)(c)
3 and (4).
4 (7) Funding under this section is payable in accordance with a
5 determination of the CEO under subsection (2).
6 52. Contravention of funding conditions
7 (1) A person designated, or formerly designated, as a local
8 ACH service must not contravene a condition to which the
9 payment of a funding sum to the person is subject under
10 section 51(2)(c) or (4).
11 Penalty for this subsection: a fine of $10 000.
12 (2) In subsection (1) --
13 funding sum has the meaning given in section 51(2)(a).
page 48
Aboriginal Cultural Heritage Bill 2021
Rights and duties in relation to Aboriginal cultural heritage Part 3
Preliminary Division 1
s. 53
1 Part 3 -- Rights and duties in relation to Aboriginal
2 cultural heritage
3 Division 1 -- Preliminary
4 53. Terms used
5 In this Part --
6 custodian --
7 (a) in relation to Aboriginal ancestral remains -- has the
8 meaning given in section 55(1)(a); or
9 (b) in relation to a secret or sacred object -- has the
10 meaning given in section 63(1)(a);
11 organisation means any person other than the following --
12 (a) an individual;
13 (b) the WA Museum.
14 54. No compensation under this Part
15 A person is not entitled to any compensation for loss resulting
16 from the operation of this Part.
17 Division 2 -- Aboriginal ancestral remains
18 55. Rights of Aboriginal people in relation to Aboriginal
19 ancestral remains
20 (1) An Aboriginal person, group or community that has traditional
21 rights, interests and responsibilities in respect of an area in
22 which Aboriginal ancestral remains are located, or are
23 reasonably believed to have originated from, is --
24 (a) a custodian of the ancestral remains; and
25 (b) entitled to possession and control of the ancestral
26 remains.
page 49
Aboriginal Cultural Heritage Bill 2021
Part 3 Rights and duties in relation to Aboriginal cultural heritage
Division 2 Aboriginal ancestral remains
s. 56
1 (2) Subsection (1) applies to Aboriginal ancestral remains
2 regardless of who may have had possession or control of the
3 ancestral remains before the commencement of this section.
4 56. ACH Council must be notified about Aboriginal ancestral
5 remains
6 (1) An organisation or individual that is in possession of Aboriginal
7 ancestral remains must, within the prescribed period, give
8 written notice to the ACH Council --
9 (a) stating that they are in possession of the ancestral
10 remains; and
11 (b) describing the ancestral remains; and
12 (c) containing any other information in their possession
13 about the ancestral remains, including information about
14 how they came to be in possession of the ancestral
15 remains.
16 Penalty for this subsection: a fine of $10 000.
17 (2) However, subsection (1) does not apply to --
18 (a) an Aboriginal person acting in accordance with the
19 person's traditional rights, interests and responsibilities
20 in respect of the Aboriginal ancestral remains; or
21 (b) an organisation or individual acting at the written
22 request of an Aboriginal person described in
23 paragraph (a); or
24 (c) an organisation that, or individual who, reasonably
25 believes that the ACH Council is already aware that the
26 organisation or individual is in possession of the
27 Aboriginal ancestral remains.
page 50
Aboriginal Cultural Heritage Bill 2021
Rights and duties in relation to Aboriginal cultural heritage Part 3
Aboriginal ancestral remains Division 2
s. 57
1 57. Duty of organisations to return Aboriginal ancestral
2 remains
3 (1) An organisation that is in possession of Aboriginal ancestral
4 remains and has given notice under section 56(1) must, within
5 the prescribed period --
6 (a) identify a custodian of the ancestral remains; and
7 (b) either --
8 (i) return the ancestral remains to a custodian of the
9 ancestral remains; or
10 (ii) at the request of a custodian of the ancestral
11 remains, agree to continue to hold the ancestral
12 remains on behalf of the custodians of the
13 ancestral remains until a custodian of the
14 ancestral remains requests otherwise.
15 Penalty for this subsection: a fine of $20 000.
16 (2) An organisation must seek the advice of the ACH Council as to
17 compliance with subsection (1).
18 (3) It is a defence to a charge of an offence under subsection (1) to
19 prove that the organisation --
20 (a) could not, after taking reasonable steps to do so, identify
21 a custodian of Aboriginal ancestral remains that are in
22 its possession; and
23 (b) has transferred the ancestral remains into the custody of
24 the ACH Council.
25 (4) An organisation must give written notice to the ACH Council
26 within the prescribed period after the organisation, in
27 accordance with subsection (1)(b), has either --
28 (a) returned Aboriginal ancestral remains to a custodian of
29 the ancestral remains; or
30 (b) been requested by a custodian of Aboriginal ancestral
31 remains to continue to hold the ancestral remains on
page 51
Aboriginal Cultural Heritage Bill 2021
Part 3 Rights and duties in relation to Aboriginal cultural heritage
Division 2 Aboriginal ancestral remains
s. 58
1 behalf of the custodians of the ancestral remains until a
2 custodian of the ancestral remains requests otherwise.
3 Penalty for this subsection: a fine of $10 000.
4 58. Duty of individuals to transfer Aboriginal ancestral remains
5 to custody of ACH Council
6 (1) An individual who is in possession of Aboriginal ancestral
7 remains and has given notice under section 56(1) must, within
8 the prescribed period, take reasonable steps to transfer the
9 ancestral remains into the custody of the ACH Council.
10 Penalty for this subsection: a fine of $20 000.
11 (2) An individual must seek the advice of the ACH Council as to
12 compliance with subsection (1).
13 59. Transfer of Aboriginal ancestral remains by coroner
14 A coroner who has notified the ACH Council under the
15 Coroners Act 1996 section 19B that a body is, or is likely to be,
16 Aboriginal ancestral remains must, as soon as practicable,
17 transfer any ancestral remains the subject of the notice into the
18 custody of the ACH Council.
19 60. Aboriginal ancestral remains transferred to custody of ACH
20 Council
21 The ACH Council may arrange for Aboriginal ancestral remains
22 transferred into its custody under this Act to, as appropriate in
23 relation to particular ancestral remains --
24 (a) be returned to a custodian of the ancestral remains; or
25 (b) at the request of a custodian of the ancestral remains --
26 be held by the Council in safekeeping on behalf of the
27 custodians of the ancestral remains; or
28 (c) if the Council cannot identify a custodian of the
29 ancestral remains -- be dealt with in a manner that the
30 Council considers appropriate.
page 52
Aboriginal Cultural Heritage Bill 2021
Rights and duties in relation to Aboriginal cultural heritage Part 3
Aboriginal ancestral remains Division 2
s. 61
1 61. Aboriginal ancestral remains must not be disturbed or
2 removed
3 (1) A person must not --
4 (a) disturb or remove Aboriginal ancestral remains on any
5 land; or
6 (b) sell, exchange or otherwise dispose of Aboriginal
7 ancestral remains; or
8 (c) remove Aboriginal ancestral remains from the State; or
9 (d) cause or permit Aboriginal ancestral remains to be
10 removed from the State; or
11 (e) conceal Aboriginal ancestral remains.
12 Penalty for this subsection: a fine of $20 000.
13 (2) However, subsection (1) does not apply to Aboriginal ancestral
14 remains being dealt with --
15 (a) by an Aboriginal person acting in accordance with the
16 person's traditional rights, interests and responsibilities
17 in respect of the ancestral remains; or
18 (b) in accordance with this Part.
19 (3) It is a defence to a charge of an offence under subsection (1)(a)
20 to prove that --
21 (a) the person charged --
22 (i) was carrying out an activity that was authorised
23 under Part 6 Division 4; or
24 (ii) was performing a function under this Act or
25 another written law; or
26 (iii) was lawfully on the land where the Aboriginal
27 ancestral remains were present and did not
28 reasonably suspect that ancestral remains were
29 present on the land or that the person's actions
30 would disturb or remove Aboriginal ancestral
31 remains present on the land;
page 53
Aboriginal Cultural Heritage Bill 2021
Part 3 Rights and duties in relation to Aboriginal cultural heritage
Division 3 Secret or sacred objects
s. 62
1 and
2 (b) the person ceased carrying out the activity, performing
3 the function or taking the action that caused the
4 disturbance or removal of the ancestral remains as soon
5 as practicable after the person became aware of the
6 presence of the ancestral remains.
7 Division 3 -- Secret or sacred objects
8 62. Term used: prescribed public authority
9 In this Division --
10 prescribed public authority means any public authority other
11 than the following --
12 (a) the WA Museum;
13 (b) a university listed in the Public Sector Management
14 Act 1994 Schedule 1.
15 63. Rights of Aboriginal people in relation to secret or sacred
16 objects
17 (1) An Aboriginal person, group or community that has traditional
18 rights, interests and responsibilities in respect of a secret or
19 sacred object is --
20 (a) a custodian of the object; and
21 (b) a rightful owner of, and entitled to possession and
22 control of, the object --
23 (i) if the object is in the possession of a prescribed
24 public authority immediately before the
25 commencement of this section -- on the
26 commencement of this section; or
27 (ii) otherwise -- when the object comes into the
28 possession of a prescribed public authority on or
29 after the commencement of this section.
page 54
Aboriginal Cultural Heritage Bill 2021
Rights and duties in relation to Aboriginal cultural heritage Part 3
Secret or sacred objects Division 3
s. 64
1 (2) Subsection (1) applies to a secret or sacred object regardless of
2 who may have owned, or had possession or control of, the
3 object before the commencement of this section or before the
4 object came into the possession of a prescribed public authority.
5 64. ACH Council must be notified about secret or sacred objects
6 (1) A person, other than the WA Museum, that is in possession of a
7 secret or sacred object must, within the prescribed period, give
8 written notice to the ACH Council --
9 (a) stating that the person is in possession of the object; and
10 (b) describing the object; and
11 (c) containing any other information in their possession
12 about the object, including information about how they
13 came to be in possession of the object.
14 Penalty for this subsection: a fine of $5 000.
15 (2) However, subsection (1) does not apply to --
16 (a) an Aboriginal person acting in accordance with the
17 person's traditional rights, interests and responsibilities
18 in respect of the secret or sacred object; or
19 (b) a person acting at the written request of an Aboriginal
20 person described in paragraph (a); or
21 (c) a person who reasonably believes that the ACH Council
22 is already aware that they are in possession of the secret
23 or sacred object.
24 65. Duty of prescribed public authorities to return secret or
25 sacred objects
26 (1) A prescribed public authority that is in possession of a secret or
27 sacred object and has given notice under section 64(1) must,
28 within the prescribed period --
29 (a) identify a custodian of the object; and
30 (b) either --
31 (i) return the object to a custodian of the object; or
page 55
Aboriginal Cultural Heritage Bill 2021
Part 3 Rights and duties in relation to Aboriginal cultural heritage
Division 3 Secret or sacred objects
s. 66
1 (ii) at the request of a custodian of the object, agree
2 to continue to hold the object on behalf of the
3 custodians of the object until a custodian of the
4 object requests otherwise.
5 Penalty for this subsection: a fine of $20 000.
6 (2) A prescribed public authority must seek the advice of the
7 ACH Council as to compliance with subsection (1).
8 (3) It is a defence to a charge of an offence under subsection (1) to
9 prove that the prescribed public authority --
10 (a) could not, after taking reasonable steps to do so, identify
11 a custodian of a secret or sacred object in its possession;
12 and
13 (b) has transferred the object into the custody of the
14 ACH Council.
15 (4) A prescribed public authority must give written notice to the
16 ACH Council within the prescribed period after the authority, in
17 accordance with subsection (1)(b), has --
18 (a) returned a secret or sacred object to a custodian of the
19 object; or
20 (b) been requested by a custodian of the object to continue
21 to hold the object on behalf of the custodians of the
22 object until a custodian of the object requests otherwise.
23 Penalty for this subsection: a fine of $10 000.
24 66. Secret or sacred objects transferred to custody of ACH
25 Council
26 The ACH Council may arrange for a secret or sacred object
27 transferred into its custody under this Act to, as appropriate in
28 relation to the particular object --
29 (a) be returned to a custodian of the object; or
page 56
Aboriginal Cultural Heritage Bill 2021
Rights and duties in relation to Aboriginal cultural heritage Part 3
Duty to report Aboriginal cultural heritage to ACH Council Division 4
s. 67
1 (b) at the request of a custodian of the object -- be held by
2 the Council in safekeeping on behalf of the custodians
3 of the object; or
4 (c) if the Council cannot identify a custodian of the
5 object -- be dealt with in a manner that the Council
6 considers appropriate.
7 67. Secret or sacred objects must not be sold or removed from
8 the State
9 (1) A person must not --
10 (a) sell, exchange or otherwise dispose of a secret or sacred
11 object; or
12 (b) remove a secret or sacred object from the State; or
13 (c) cause or permit a secret or sacred object to be removed
14 from the State; or
15 (d) conceal a secret or sacred object.
16 Penalty for this subsection: a fine of $20 000.
17 (2) However, subsection (1) does not apply to a secret or sacred
18 object being dealt with --
19 (a) by an Aboriginal person in accordance with the person's
20 traditional rights, interests and responsibilities in respect
21 of the object; or
22 (b) in accordance with this Part.
23 Division 4 -- Duty to report Aboriginal cultural heritage to
24 ACH Council
25 68. Reporting Aboriginal cultural heritage
26 (1) A person who knows, or becomes aware, of the existence of any
27 of the following must, within the prescribed period, report it to
28 the ACH Council --
29 (a) an Aboriginal place;
30 (b) an Aboriginal object;
page 57
Aboriginal Cultural Heritage Bill 2021
Part 3 Rights and duties in relation to Aboriginal cultural heritage
Division 4 Duty to report Aboriginal cultural heritage to ACH Council
s. 68
1 (c) Aboriginal ancestral remains.
2 Penalty for this subsection: a fine of $10 000.
3 (2) However, subsection (1) does not apply to --
4 (a) an Aboriginal person acting in accordance with the
5 person's traditional rights, interests and responsibilities
6 in respect of --
7 (i) the Aboriginal place; or
8 (ii) the Aboriginal object; or
9 (iii) the Aboriginal ancestral remains;
10 or
11 (b) a person acting at the written request of an Aboriginal
12 person described in paragraph (a); or
13 (c) a person who reasonably believes that the ACH Council
14 is already aware of the existence of --
15 (i) the Aboriginal place; or
16 (ii) the Aboriginal object; or
17 (iii) the Aboriginal ancestral remains.
18 (3) A report under subsection (1) may be given orally or in writing.
19 (4) The ACH Council may arrange for Aboriginal ancestral remains
20 or a secret or sacred object reported to it under subsection (1),
21 that are not under the possession and control of a custodian of
22 the ancestral remains or object, to be transferred into the
23 custody of the Council.
page 58
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Preliminary Division 1
s. 69
1 Part 4 -- Protected areas
2 Division 1 -- Preliminary
3 69. Terms used
4 In this Part --
5 application area means the area to which an application under
6 section 72(1) relates;
7 outstanding significance, in relation to Aboriginal cultural
8 heritage, means --
9 (a) that the Aboriginal cultural heritage is of outstanding
10 significance to --
11 (i) a knowledge holder for the Aboriginal cultural
12 heritage; or
13 (ii) a group or community, the members of which are
14 knowledge holders for the Aboriginal cultural
15 heritage;
16 and
17 (b) that the significance is recognised through social,
18 spiritual, historical, scientific or aesthetic values as part
19 of Aboriginal tradition.
20 70. Purpose of protected area order
21 The purpose of declaring an area as a protected area is --
22 (a) to recognise that Aboriginal cultural heritage of
23 outstanding significance for the purposes of this Act is
24 located in the area; and
25 (b) to provide for the area special protection from activities
26 that may harm that Aboriginal cultural heritage.
27 71. Protected area order guidelines must be considered
28 In determining under this Part whether Aboriginal cultural
29 heritage is of outstanding significance for the purposes of this
page 59
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 2 Application for area to be declared as protected area
s. 72
1 Act, the factors set out in the protected area order guidelines
2 must be considered.
3 Division 2 -- Application for area to be declared as protected
4 area
5 72. Application for area to be declared as protected area
6 (1) An application for an area to be declared as a protected area
7 may be made by a knowledge holder for the area.
8 (2) An application under subsection (1) must --
9 (a) be made to the ACH Council in the approved form; and
10 (b) describe the application area, which can comprise
11 several areas that are not contiguous; and
12 (c) describe --
13 (i) the characteristics of the Aboriginal cultural
14 heritage in the application area; and
15 (ii) the outstanding significance of the Aboriginal
16 cultural heritage to the applicant, or to a group or
17 community of which the applicant is a member;
18 and
19 (d) if the application area includes any area to which an
20 ACH permit relates -- be accompanied by evidence of
21 the agreement of the holder of the permit, as referred to
22 in subsection (3); and
23 (e) if the application area includes any area to which an
24 approved or authorised ACH management plan
25 relates -- be accompanied by evidence of the agreement
26 of the parties to the plan, as referred to in subsection (4);
27 and
28 (f) be accompanied by the other documents or information,
29 if any, prescribed for the purposes of this paragraph.
30 (3) The application area must not include any area to which an
31 ACH permit relates unless the holder of the permit agrees to the
page 60
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Application for area to be declared as protected area Division 2
s. 73
1 amendment of the area to which the permit relates to exclude
2 any area that is included in the application area.
3 (4) The application area must not include any area to which an
4 approved or authorised ACH management plan relates unless
5 the parties to the plan agree to the amendment of the area to
6 which the plan relates to exclude any area that is included in the
7 application area.
8 73. Further information in support of application
9 (1) The ACH Council may make a written request to an applicant
10 under section 72(1) to do any of the following --
11 (a) provide the Council with any further information
12 relevant to the application that the Council requires to
13 assess the application;
14 (b) verify any further information by statutory declaration.
15 (2) The ACH Council must specify the period within which the
16 request is to be complied with.
17 74. ACH Council may refuse to consider some applications
18 The ACH Council may refuse to consider, or consider further,
19 an application under section 72(1) if --
20 (a) the application is not made in accordance with this Act;
21 or
22 (b) the applicant has not complied with a request under
23 section 73; or
24 (c) the Council is of the opinion that the application is
25 substantially the same as an application that --
26 (i) was made within the previous 2 years; and
27 (ii) was refused.
page 61
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 2 Application for area to be declared as protected area
s. 75
1 75. ACH Council must notify certain persons about application
2 (1) The ACH Council must give written notice of an application
3 under section 72(1) to the following persons --
4 (a) each local ACH service for the application area or a part
5 of the application area;
6 (b) each native title party for the application area or a part of
7 the application area;
8 (c) each knowledge holder for the application area or a part
9 of the application area.
10 (2) In subsection (1)(c) --
11 each knowledge holder, in relation to an application area or a
12 part of an application area, means each person who is identified
13 as a knowledge holder for the application area or a part of the
14 application area, after reasonable steps have been taken to do so
15 in accordance with the knowledge holder guidelines.
16 (3) The notice must give --
17 (a) details of the application area; and
18 (b) details about the Aboriginal cultural heritage to which
19 the application relates to the extent that the details do
20 not disclose culturally sensitive information; and
21 (c) an opportunity to make submissions to the ACH Council
22 within the prescribed period about whether the
23 application area, or a part of the application area, should
24 be declared as a protected area.
25 76. Preliminary assessment by ACH Council
26 (1) At the end of the period for submissions referred to in a notice
27 given under section 75(1) in respect of an application under
page 62
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Application for area to be declared as protected area Division 2
s. 77
1 section 72(1), the ACH Council must, within the prescribed
2 period --
3 (a) consider the application, and any further information
4 provided in response to a request under section 73(1);
5 and
6 (b) consider any submissions made to the Council in
7 response to the notice; and
8 (c) consider the characteristics of the Aboriginal cultural
9 heritage and the significance of it to the knowledge
10 holders for the Aboriginal cultural heritage; and
11 (d) form a preliminary view about whether or not the
12 application area, or a part of the application area, should
13 be declared as a protected area.
14 (2) The ACH Council may form a preliminary view that the
15 application area, or a part of the application area, should be
16 declared as a protected area only if the Council is satisfied that
17 Aboriginal cultural heritage of outstanding significance for the
18 purposes of this Act is located in the area.
19 77. Giving public notice of intention to seek that area be
20 declared as protected area
21 (1) If, on an application under section 72(1) for an area to be
22 declared as a protected area, the ACH Council forms a
23 preliminary view that an area should be declared as a protected
24 area, the Council must --
25 (a) give public notice as described in subsection (3); and
26 (b) notify the following persons that the public notice has
27 been given --
28 (i) each local ACH service for the area or a part of
29 the area;
30 (ii) each native title party for the area or a part of the
31 area;
page 63
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 2 Application for area to be declared as protected area
s. 78
1 (iii) each knowledge holder for the area or a part of
2 the area;
3 (iv) each landholder of land within the area;
4 (v) each public authority that the Council considers
5 has an interest in the area or a part of the area;
6 (vi) any other person the Council considers has an
7 interest in the area or a part of the area.
8 (2) In subsection (1)(b)(iii) --
9 each knowledge holder, in relation to an area or a part of an
10 area, means each person who is identified as a knowledge
11 holder for the area or a part of the area, after reasonable steps
12 have been taken to do so in accordance with the knowledge
13 holder guidelines.
14 (3) The public notice must include the following --
15 (a) details of the area that the ACH Council has formed the
16 preliminary view should be declared as a protected area;
17 (b) provision of an opportunity to make submissions to the
18 Council within the prescribed period about the
19 preliminary view of the Council that the area should be
20 declared as a protected area.
21 78. Review of preliminary assessment of ACH Council that area
22 not be declared as protected area
23 (1) If, on an application under section 72(1), the ACH Council
24 forms a preliminary view that no part of the application area
25 should be declared as a protected area, the Council must give to
26 the applicant and each person notified under section 75(1)
27 written notice --
28 (a) setting out the Council's preliminary view; and
29 (b) setting out the reasons why the Council has formed that
30 view; and
31 (c) containing a statement that the person may request the
32 Minister to consider the matter.
page 64
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Application for area to be declared as protected area Division 2
s. 78
1 (2) A person who is given notice under subsection (1) may, within
2 the prescribed period, make a written request to the Minister to
3 consider the matter.
4 (3) On receipt of a request under subsection (2), the Minister must
5 give a written direction to the ACH Council to provide to the
6 Minister --
7 (a) the application for the area to be declared as a protected
8 area, and any further information provided in response
9 to a request under section 73(1); and
10 (b) any submissions made to the Council in response to a
11 notice given under section 75(1); and
12 (c) information about the basis on which the preliminary
13 view of the Council was formed.
14 (4) Having considered the information provided by the
15 ACH Council under subsection (3), the Minister may --
16 (a) confirm the preliminary view formed by the Council that
17 no part of the application area should be declared as a
18 protected area; or
19 (b) if the Minister is satisfied that Aboriginal cultural
20 heritage of outstanding significance for the purposes of
21 this Act is located in the application area, or a part of the
22 application area -- give a written direction to the
23 Council to give public notice under section 77(1)(a) and
24 for that purpose the Council is taken to have formed a
25 preliminary view that the application area, or the part of
26 the application area, should be declared as a protected
27 area.
28 (5) If the Minister confirms the preliminary view formed by the
29 ACH Council that no part of the application area should be
30 declared as a protected area, the Minister must ensure that
31 written notice of the Minister's decision is given to --
32 (a) the applicant; and
33 (b) each person notified under section 75(1).
page 65
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 3 Recommendation of ACH Council
s. 79
1 Division 3 -- Recommendation of ACH Council
2 79. Recommendation of ACH Council
3 (1) At the end of the period for making submissions referred to in
4 the public notice given under section 77(1)(a) in relation to a
5 preliminary view formed, or taken to be formed under
6 section 78(4)(b), by the ACH Council that an area should be
7 declared as a protected area the Council must, within the
8 prescribed period --
9 (a) consider --
10 (i) the matters set out in section 76(1)(a), (b) and (c)
11 and the preliminary view formed, or taken to be
12 formed, by the Council; and
13 (ii) any submissions made to the Council in response
14 to the public notice;
15 and
16 (b) make a recommendation to the Minister under
17 subsection (2).
18 (2) The ACH Council may recommend to the Minister --
19 (a) that the application area, or a part of the application
20 area, be declared as a protected area; or
21 (b) that no part of the application area be declared as a
22 protected area.
23 (3) If the ACH Council makes a recommendation that an area be
24 declared as a protected area, the Council may also recommend
25 that an order declaring the area as a protected area should be
26 made subject to conditions relating to any of the following --
27 (a) the management of the area;
28 (b) access to the area;
29 (c) the other matters, if any, prescribed for the purposes of
30 this paragraph.
page 66
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Recommendation of ACH Council Division 3
s. 79
1 (4) The ACH Council may make a recommendation under
2 subsection (2)(a) in respect of an area only if satisfied --
3 (a) that Aboriginal cultural heritage of outstanding
4 significance for the purposes of this Act is located in the
5 area; and
6 (b) that the area needs to be provided with special
7 protection from activities that may harm that Aboriginal
8 cultural heritage; and
9 (c) if the area overlaps with an area to which an
10 ACH permit or approved or authorised ACH
11 management plan relates -- that there are measures in
12 place to ensure that the permit or plan is amended to
13 exclude from the area to which the permit or plan relates
14 any area that is part of the area to be declared as a
15 protected area; and
16 (d) in relation to the other matters, if any, prescribed for the
17 purposes of this paragraph.
18 (5) A recommendation to the Minister under subsection (2) must be
19 accompanied by --
20 (a) the reasons for the recommendation; and
21 (b) the application under section 72(1), and any further
22 information provided in response to a request under
23 section 73(1); and
24 (c) any submissions made to the ACH Council following --
25 (i) notice given under section 75(1); and
26 (ii) public notice given under section 77(1)(a).
27 (6) The ACH Council must give public notice of a recommendation
28 made to the Minister under subsection (2).
page 67
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 4 Decision of Minister
s. 80
1 Division 4 -- Decision of Minister
2 80. Minister may request further information
3 If the ACH Council makes a recommendation to the Minister
4 under section 79(2), the Minister may make a written request to
5 the Council or any other person to provide the Minister with any
6 further information the Minister requires to assist in making a
7 decision about whether an area should be declared as a
8 protected area.
9 81. Decision of Minister
10 (1) If the ACH Council makes a recommendation to the Minister
11 under section 79(2), the Minister must consider the information
12 provided to the Minister under section 79(5), the
13 recommendation of the Council and any further information
14 provided in response to a request under section 80 and must
15 decide, within the prescribed period --
16 (a) that the application area, or a part of the application
17 area, should be declared as a protected area; or
18 (b) that no part of the application area should be declared as
19 a protected area.
20 (2) The decision of the Minister under subsection (1) must be made
21 on the grounds of --
22 (a) whether or not the Minister is satisfied as to the matters
23 set out in section 79(4); and
24 (b) what is in the interests of the State.
25 (3) If the Minister makes a decision that an area should be declared
26 as a protected area, the Minister may give any written direction
27 that the Minister considers necessary to ensure that, before a
28 protected area order comes into effect in respect of the area --
29 (a) any relevant ACH permit is amended under
30 section 129(1) to exclude from the area to which the
31 permit relates any area that is part of the area to be
page 68
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Decision of Minister Division 4
s. 81
1 declared as a protected area, as agreed by the permit
2 holder under section 72(3); and
3 (b) any relevant approved or authorised ACH management
4 plan is --
5 (i) amended to exclude from the area to which the
6 plan relates any area that is part of the area to be
7 declared as a protected area, as agreed by the
8 parties to the plan under section 72(4); and
9 (ii) approved under section 169(3) as so amended.
10 (4) If the Minister makes a decision that an area should be declared
11 as a protected area, the Minister may determine, after
12 considering the recommendation, if any, of the ACH Council
13 under section 79(3), that an order declaring the area as a
14 protected area should be made subject to a condition, or
15 conditions, relating to any of the following --
16 (a) the management of the area;
17 (b) access to the area;
18 (c) the other matters, if any, prescribed for the purposes of
19 this paragraph.
20 (5) If the Minister makes a decision that an area should be declared
21 as a protected area, the Minister must recommend to the
22 Governor that the Governor declare the area to be a protected
23 area for the purposes of this Act.
24 (6) If the Minister makes a decision that no part of an application
25 area should be declared as a protected area, the Minister must
26 ensure that public notice of that decision is given within 14 days
27 after the decision is made under subsection (1)(b).
28 (7) The notice must contain the following --
29 (a) a description of the decision;
30 (b) short particulars of the reasons for the decision.
page 69
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 5 Declaration of protected area
s. 82
1 Division 5 -- Declaration of protected area
2 82. Protected area orders
3 (1) The Governor may, by order made on a recommendation of the
4 Minister under section 81(5), declare an area as a protected area
5 for the purposes of this Act.
6 (2) An order under subsection (1) can declare that the protected
7 area comprises several areas that are not contiguous.
8 (3) An order under subsection (1) must --
9 (a) provide a name for the protected area; and
10 (b) describe the boundaries of the protected area in a
11 manner sufficient to identify it; and
12 (c) state that Aboriginal cultural heritage of outstanding
13 significance for the purposes of this Act is located in the
14 protected area; and
15 (d) state the conditions, if any, to which the declaration of
16 the area, or areas, as a protected area is subject.
17 83. Amending and repealing orders
18 (1) An application for the amendment or repeal of a protected area
19 order may be made by --
20 (a) a knowledge holder for the protected area; or
21 (b) a person who wants to carry out an activity in the
22 protected area.
23 (2) Other than as set out in this section, this Part applies, with all
24 necessary modifications, in respect of --
25 (a) an application for the amendment or repeal of a
26 protected area order; and
27 (b) the making of an order amending or repealing that order.
page 70
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Declaration of protected area Division 5
s. 83
1 (3) An application for the amendment of a protected area order may
2 provide for --
3 (a) a change to the name of the protected area; or
4 (b) a change to the description of the boundaries of the
5 protected area; or
6 (c) the removal of a condition to which the order is subject;
7 or
8 (d) the imposition of a new condition to which the order is
9 to be made subject, or a change to a condition to which
10 the order is subject, relating to any of the following --
11 (i) the management of the area;
12 (ii) access to the area;
13 (iii) the other matters, if any, prescribed for the
14 purposes of this subparagraph.
15 (4) If the amendment of a protected area order is to provide only for
16 a change to the name of the protected area then --
17 (a) sections 75 to 81 do not apply in respect of --
18 (i) the application for the amendment; or
19 (ii) the making of the amending order;
20 and
21 (b) for the purposes of section 82(1), the Minister may make
22 a recommendation to the Governor for the amendment
23 of the protected area order under this subsection; and
24 (c) before making a recommendation under paragraph (b),
25 the Minister must --
26 (i) give to the persons described in section 75(1)
27 written notice of the proposed change to the
28 name of the protected area that provides a
29 reasonable opportunity to make submissions to
30 the Minister about the proposed change to the
31 name of the protected area; and
page 71
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 5 Declaration of protected area
s. 84
1 (ii) consider any submissions made to the Minister in
2 response to the notice.
3 84. Order to correct error
4 (1) The Minister may, on the Minister's own initiative, recommend
5 to the Governor that the Governor make an order amending a
6 protected area order to correct in the order --
7 (a) a clerical mistake or unintentional error or omission; or
8 (b) a figure that has been miscalculated; or
9 (c) a misdescription of an area, activity, Aboriginal cultural
10 heritage or other thing.
11 (2) The Governor may, on a recommendation of the Minister under
12 subsection (1), make an order amending a protected area order.
13 85. Repeal of protected area order, or amendment to reduce
14 area declared as protected area
15 A protected area order must not be repealed or amended to
16 reduce the area or, if in relation to a cultural landscape, areas
17 declared as a protected area, unless the recommendation of the
18 Minister under section 81(5), as applied by section 83(2), to
19 repeal or amend the order --
20 (a) has been laid before each House of Parliament; and
21 (b) has been approved by a resolution passed by both
22 Houses of Parliament.
23 86. Provisions about protected area orders
24 (1) A protected area order must be published in the Gazette.
25 (2) A protected area order is not subsidiary legislation for the
26 purposes of the Interpretation Act 1984.
27 (3) The Interpretation Act 1984 sections 43 (other than
28 subsections (4) and (6)), 44 and 56 and Part VIII apply to a
29 protected area order as if it were subsidiary legislation.
page 72
Aboriginal Cultural Heritage Bill 2021
Protected areas Part 4
Declaration of protected area Division 5
s. 87
1 (4) The CEO must ensure that public notice is given of a protected
2 area order.
3 (5) A protected area order comes into effect --
4 (a) on the day on which it is published in the Gazette; or
5 (b) on a later day specified in the order.
6 87. Lodgment of notification with Registrar and modification
7 and withdrawal of notification
8 (1) In this section --
9 Registrar means --
10 (a) the Registrar of Titles under the Transfer of Land
11 Act 1893, in relation to land that is under the operation
12 of that Act; or
13 (b) the Registrar of Deeds and Transfers under the
14 Registration of Deeds Act 1856, in relation to land that
15 is under the operation of that Act.
16 (2) As soon as practicable after a protected area order is made under
17 section 82(1), the CEO must lodge with the Registrar a
18 notification (a section 82(1) notification) in relation to the
19 order.
20 (3) If an order is made under section 82(1), as applied by
21 section 83(2), or under section 84(2) amending or repealing an
22 order in relation to which a section 82(1) notification was
23 lodged, the CEO must lodge with the Registrar a notification for
24 the section 82(1) notification to be modified or withdrawn.
25 (4) A notification under subsection (2) or (3) must be --
26 (a) lodged in a form approved by the Registrar; and
27 (b) accompanied by any information the Registrar requires;
28 and
29 (c) accompanied by any relevant fee payable under the
30 Transfer of Land Act 1893, the Registration of Deeds
31 Act 1856 or another written law.
page 73
Aboriginal Cultural Heritage Bill 2021
Part 4 Protected areas
Division 6 Contravention of conditions on protected area orders
s. 88
1 (5) On the lodgment of a notification under subsection (2) or (3),
2 the Registrar must make any endorsement or notation the
3 Registrar considers necessary on the certificate of title or other
4 appropriate register or record in respect of the land to which the
5 notification applies.
6 Division 6 -- Contravention of conditions on protected area
7 orders
8 88. Contravention of conditions on protected area order
9 (1) A person must not contravene a condition to which a protected
10 area order is subject.
11 Penalty for this subsection: a fine of $20 000.
12 (2) It is a defence to a charge of an offence under subsection (1) to
13 prove that the person charged did not know, and could not by
14 the exercise of reasonable diligence have known, of the
15 condition to which the charge relates.
page 74
Aboriginal Cultural Heritage Bill 2021
Offences about harming Aboriginal cultural heritage and Part 5
compensation for harm to Aboriginal cultural heritage
Preliminary Division 1
s. 89
1 Part 5 -- Offences about harming Aboriginal cultural
2 heritage and compensation for harm to Aboriginal
3 cultural heritage
4 Division 1 -- Preliminary
5 89. Application of Part
6 This Part applies to the following Aboriginal cultural heritage
7 only --
8 (a) an Aboriginal place;
9 (b) an Aboriginal object;
10 (c) Aboriginal ancestral remains;
11 (d) Aboriginal cultural heritage located in a protected area.
12 90. Meaning of harm to Aboriginal cultural heritage
13 (1) To harm Aboriginal cultural heritage includes to destroy or
14 damage the Aboriginal cultural heritage.
15 (2) However, an act carried out in relation to Aboriginal cultural
16 heritage by an Aboriginal person acting in accordance with the
17 person's traditional rights, interests and responsibilities in
18 respect of the Aboriginal cultural heritage cannot harm the
19 Aboriginal cultural heritage.
20 91. Meaning of serious harm and material harm to Aboriginal
21 cultural heritage
22 (1) Harm to Aboriginal cultural heritage is serious if the harm is --
23 (a) irreversible, of a high impact or on a wide scale; or
24 (b) to Aboriginal cultural heritage located in a protected
25 area.
26 (2) Harm to Aboriginal cultural heritage is material if the harm is
27 neither trivial nor negligible.
page 75
Aboriginal Cultural Heritage Bill 2021
Part 5 Offences about harming Aboriginal cultural heritage and
compensation for harm to Aboriginal cultural heritage
Division 2 Offences: harm to Aboriginal cultural heritage
s. 92
1 Division 2 -- Offences: harm to Aboriginal cultural heritage
2 92. Serious harm to Aboriginal cultural heritage
3 A person commits a crime if --
4 (a) the person harms Aboriginal cultural heritage; and
5 (b) the harm is serious.
6 Alternative offence: s. 93(1), 94 or 95.
7 Penalty:
8 (a) for an individual --
9 (i) imprisonment for 5 years or a fine of
10 $1 000 000, or both;
11 (ii) a daily penalty of a fine of $50 000 for each
12 day or part of a day during which the offence
13 continues;
14 (b) for a body corporate --
15 (i) a fine of $10 000 000;
16 (ii) a daily penalty of a fine of $500 000 for each
17 day or part of a day during which the offence
18 continues.
19 Summary conviction penalty:
20 (a) for an individual --
21 (i) imprisonment for 2 years or a fine of
22 $700 000, or both;
23 (ii) a daily penalty of a fine of $35 000 for each
24 day or part of a day during which the offence
25 continues;
26 (b) for a body corporate --
27 (i) a fine of $7 000 000;
28 (ii) a daily penalty of a fine of $350 000 for each
29 day or part of a day during which the offence
30 continues.
page 76
Aboriginal Cultural Heritage Bill 2021
Offences about harming Aboriginal cultural heritage and Part 5
compensation for harm to Aboriginal cultural heritage
Offences: harm to Aboriginal cultural heritage Division 2
s. 93
1 93. Serious harm to Aboriginal cultural heritage, including by
2 accident
3 (1) A person commits an offence if --
4 (a) the person harms Aboriginal cultural heritage; and
5 (b) the harm is serious.
6 Alternative offence: s. 94 or 95.
7 Penalty for this subsection:
8 (a) for an individual --
9 (i) a fine of $500 000;
10 (ii) a daily penalty of a fine of $25 000 for each
11 day or part of a day during which the offence
12 continues;
13 (b) for a body corporate --
14 (i) a fine of $5 000 000;
15 (ii) a daily penalty of a fine of $250 000 for each
16 day or part of a day during which the offence
17 continues.
18 (2) Despite The Criminal Code section 23B(2), it is immaterial for
19 the purposes of subsection (1) that any event occurred by
20 accident.
21 94. Material harm to Aboriginal cultural heritage
22 A person commits an offence if --
23 (a) the person harms Aboriginal cultural heritage; and
24 (b) the harm is material.
25 Alternative offence: s. 95.
26 Penalty:
27 (a) for an individual --
28 (i) a fine of $100 000;
page 77
Aboriginal Cultural Heritage Bill 2021
Part 5 Offences about harming Aboriginal cultural heritage and
compensation for harm to Aboriginal cultural heritage
Division 3 Defences: harm to Aboriginal cultural heritage
s. 95
1 (ii) a daily penalty of a fine of $5 000 for each
2 day or part of a day during which the offence
3 continues;
4 (b) for a body corporate --
5 (i) a fine of $1 000 000;
6 (ii) a daily penalty of a fine of $50 000 for each
7 day or part of a day during which the offence
8 continues.
9 95. Harm to Aboriginal cultural heritage
10 A person commits an offence if the person harms Aboriginal
11 cultural heritage.
12 Penalty:
13 (a) for an individual --
14 (i) a fine of $25 000;
15 (ii) a daily penalty of a fine of $1 250 for each
16 day or part of a day during which the offence
17 continues;
18 (b) for a body corporate --
19 (i) a fine of $250 000;
20 (ii) a daily penalty of a fine of $12 500 for each
21 day or part of a day during which the offence
22 continues.
23 Division 3 -- Defences: harm to Aboriginal cultural heritage
24 96. Defence of authority under Part 6 Division 4
25 It is a defence to a charge of an offence under Division 2 to
26 prove that the carrying out of the activity that harmed the
27 Aboriginal cultural heritage was authorised under Part 6
28 Division 4.
page 78
Aboriginal Cultural Heritage Bill 2021
Offences about harming Aboriginal cultural heritage and Part 5
compensation for harm to Aboriginal cultural heritage
Defences: harm to Aboriginal cultural heritage Division 3
s. 97
1 97. Defences that apply in relation to protected areas
2 It is a defence to a charge of an offence under section 92
3 or 93(1) in relation to Aboriginal cultural heritage located in a
4 protected area to prove that the act that harmed the Aboriginal
5 cultural heritage was carried out in accordance with --
6 (a) the protected area order for the protected area; or
7 (b) regulations applicable to the protected area.
8 98. Other defences
9 It is a defence to a charge of an offence under Division 2 to
10 prove that the activity that harmed the Aboriginal cultural
11 heritage was carried out --
12 (a) by a person --
13 (i) after the person made an assessment, in
14 undertaking a due diligence assessment in
15 relation to the carrying out of the activity, that
16 there was no risk of harm being caused to
17 Aboriginal cultural heritage by the activity; and
18 (ii) who took all reasonable steps possible to avoid,
19 or minimise, the risk of harm being caused to
20 Aboriginal cultural heritage by the activity;
21 or
22 (b) by a person in accordance with a remediation order; or
23 (c) by a person in accordance with the Coroners Act 1996 in
24 the course of determining whether human remains are
25 Aboriginal ancestral remains; or
26 (d) by a person in an emergency situation for the purpose of
27 preventing, or minimising, loss of life, prejudice to the
28 safety, or harm to the health, of people; or
page 79
Aboriginal Cultural Heritage Bill 2021
Part 5 Offences about harming Aboriginal cultural heritage and
compensation for harm to Aboriginal cultural heritage
Division 4 Compensation for harm to Aboriginal cultural heritage
s. 99
1 (e) by a person of a prescribed class, in a prescribed
2 situation or while carrying out a prescribed activity.
3 Note for this section:
4 The duty to mitigate set out in paragraph (a)(ii) applies in relation to
5 Aboriginal cultural heritage in an area even if an assessment was
6 made, in undertaking a due diligence assessment, that Aboriginal
7 cultural heritage was not located in the area.
8 Division 4 -- Compensation for harm to Aboriginal cultural
9 heritage
10 99. Compensation for harm to Aboriginal cultural heritage
11 (1) The CEO may, with the prior written approval of the Minister,
12 decide that compensation is to be paid in respect of Aboriginal
13 cultural heritage to which harm has been caused as a direct or
14 indirect consequence of the commission of an offence under
15 Division 2.
16 (2) Compensation payable under subsection (1) must be paid to an
17 Aboriginal person, group or community with traditional rights,
18 interests and responsibilities in respect of the Aboriginal
19 cultural heritage to which the harm has been caused.
20 (3) If the CEO decides that compensation must be paid under
21 subsection (1), the CEO must make a written determination
22 setting out --
23 (a) the amount of money that must be paid as compensation
24 (the compensation sum); and
25 (b) the manner in which the compensation sum must be
26 paid; and
27 (c) the Aboriginal person, group or community to whom the
28 compensation sum must be paid in full, or the
29 Aboriginal persons, groups or communities between
30 whom the compensation sum must be shared and the
31 amount of each share.
page 80
Aboriginal Cultural Heritage Bill 2021
Offences about harming Aboriginal cultural heritage and Part 5
compensation for harm to Aboriginal cultural heritage
Compensation for harm to Aboriginal cultural heritage Division 4
s. 99
1 (4) A determination under subsection (3) must be made in
2 accordance with the criteria, if any, prescribed.
3 (5) Before making a decision under subsection (1), or a
4 determination under subsection (3), the CEO must --
5 (a) make a written request to the ACH Council to provide
6 the CEO with advice about the decision or the
7 determination; and
8 (b) consider any advice received in response to the request.
9 (6) A request made to the ACH Council under subsection (5)(a)
10 must set out details of --
11 (a) the Aboriginal cultural heritage to which harm has been
12 caused; and
13 (b) the commission of the offence, and the direct or indirect
14 consequences of the commission of the offence, that
15 caused the harm; and
16 (c) the Aboriginal person, group or community to whom the
17 compensation sum is proposed to be paid in full, or the
18 Aboriginal persons, groups or communities between
19 whom it is proposed that the compensation sum be
20 shared and the amount of each share.
21 (7) Compensation under this section is payable in accordance with a
22 determination of the CEO under subsection (3).
page 81
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 1 Preliminary
s. 100
1 Part 6 -- Managing activities that may harm
2 Aboriginal cultural heritage
3 Division 1 -- Preliminary
4 100. Terms used
5 In this Part --
6 Aboriginal party, in relation to an approved or authorised ACH
7 management plan, means each interested Aboriginal party that
8 has agreed to be a party to the plan;
9 ACH impact statement, in respect of a proposed activity that is
10 intended to be carried out in an area, means a statement,
11 prepared in accordance with the regulations, about the impact of
12 the proposed activity on Aboriginal cultural heritage in the area;
13 ACH Management Code has the meaning given in
14 section 294(a);
15 ACH management plan has the meaning given in section 137;
16 ACH permit means an Aboriginal cultural heritage permit
17 granted under section 119(1)(c)(i);
18 consult means to consult in accordance with section 101 and the
19 consultation guidelines;
20 exempt activity means any of the following activities --
21 (a) construction, renovation or demolition of a building
22 occupied, or intended for occupation, as a place of
23 residence, or a building ancillary to such a building, on a
24 lot as defined in the Planning and Development
25 Act 2005 section 4(1) that is less than 1 100 m2;
26 (b) development of a prescribed type carried out in
27 accordance with the Planning and Development
28 Act 2005;
29 (c) travel on an existing road or track;
30 (d) the taking of photographs for a recreational purpose;
page 82
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
Preliminary Division 1
s. 100
1 (e) recreational activities carried out on or in public waters
2 or in a public place;
3 (f) burning carried out --
4 (i) for fire prevention or control purposes or other
5 fire management works on Crown land; and
6 (ii) by a public authority;
7 (g) clearing of a kind set out in the Environmental
8 Protection Act 1986 Schedule 6 item 10, 10A, 11 or 12;
9 (h) other activities, if any, prescribed for the purposes of
10 this paragraph;
11 informed consent has a meaning affected by section 146;
12 interested Aboriginal party has the meaning given in
13 section 135(1);
14 parties, to an approved or authorised ACH management plan,
15 means --
16 (a) each Aboriginal party to the plan; and
17 (b) the proponent identified in the plan under
18 section 137(2)(a)(i);
19 persons to be consulted, in relation to an activity or a proposed
20 activity, means the persons to be consulted in accordance with
21 section 107(1);
22 persons to be notified, in relation to an activity or a proposed
23 activity, means the persons to be notified in accordance with
24 section 107(1);
25 proponent means a person who --
26 (a) intends to carry out an activity that may harm
27 Aboriginal cultural heritage; or
28 (b) carries out an activity authorised under Division 4;
29 proposed activity means an activity that a proponent intends to
30 carry out;
page 83
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 1 Preliminary
s. 100
1 related agreement, for an area, means an agreement that --
2 (a) contains provisions about --
3 (i) the management of Aboriginal cultural heritage
4 in the area; and
5 (ii) the carrying out of an activity in the area in
6 relation to which authorisation under Part 6
7 Division 4 is required;
8 and
9 (b) is between a proponent for an activity being, or a
10 proposed activity intended to be, carried out in the area
11 and --
12 (i) if there is an approved or authorised ACH
13 management plan for the area -- a person who is
14 an Aboriginal party to the plan; or
15 (ii) if there is, or were to be, an ACH management
16 plan for the area -- a person who is, or would be,
17 an interested Aboriginal party for the plan; or
18 (iii) otherwise -- 1 or more of the persons to be
19 notified or the persons to be consulted about
20 those activities, or proposed activities;
21 Example for this definition:
22 An ILUA or an agreement mentioned in the Native Title Act
23 section 31(1)(b) may be a related agreement.
24 State significance, in relation to Aboriginal cultural heritage,
25 means that the Aboriginal cultural heritage is of exceptional
26 importance to the cultural identity of the State;
27 tier 1 activity means an activity involving no, or a minimal level
28 of, ground disturbance that is prescribed for the purpose of this
29 definition;
30 tier 2 activity means an activity involving a low level of ground
31 disturbance that is prescribed for the purpose of this definition;
page 84
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
Due diligence assessment Division 2
s. 101
1 tier 3 activity means an activity involving a moderate to high
2 level of ground disturbance that is prescribed for the purpose of
3 this definition.
4 101. Consultation about proposed activities
5 For the purposes of this Part, the consultation that occurs in
6 relation to a proposed activity will depend on the circumstances
7 of the activity but should include the following --
8 (a) the proponent making a genuine attempt to contact and
9 consult, in a timely manner, each person to be consulted;
10 (b) the proponent providing sufficient information about the
11 proposed activity to each person to be consulted to
12 enable them to understand the proponent's reasoning
13 and intention;
14 (c) each person to be consulted having an opportunity to
15 clearly state their position on the proposed activity and
16 explain that position;
17 (d) the proponent and each person to be consulted
18 disclosing relevant and necessary information about
19 their position as reasonably requested;
20 (e) the proponent taking reasonable steps to follow up with
21 a person to be consulted if there is no response to the
22 initial contact or a reasonable request for further
23 information.
24 Division 2 -- Due diligence assessment
25 102. Due diligence assessment
26 For the purposes of this Act, a person undertakes a due
27 diligence assessment in relation to a proposed activity that is
28 intended to be carried out in an area if the person, in accordance
page 85
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 2 Due diligence assessment
s. 103
1 with the ACH Management Code, makes an assessment about
2 the following --
3 (a) whether the area where it is intended that the proposed
4 activity be carried out includes any area that is part of a
5 protected area;
6 (b) whether the proposed activity is a --
7 (i) a tier 1 activity; or
8 (ii) a tier 2 activity; or
9 (iii) a tier 3 activity;
10 (c) whether Aboriginal cultural heritage is located in the
11 area where it is intended that the proposed activity be
12 carried out;
13 (d) whether there is a risk of harm being caused to
14 Aboriginal cultural heritage by the proposed activity;
15 (e) in relation to a proposed activity that has been assessed
16 as a tier 2 activity or a tier 3 activity -- the identity of
17 the persons to be notified or the persons to be consulted
18 about the proposed activity.
19 103. Due diligence assessment not required for exempt activity
20 A due diligence assessment is not required in relation to an
21 exempt activity.
22 Note for this section:
23 However, a proponent is required to make an assessment about
24 whether the area where it is intended that the exempt activity be
25 carried out includes any area that is part of a protected area, see
26 section 109.
27 104. Proponent may seek confirmation about proposed activity
28 (1) A proponent who intends to carry out an activity in an area may
29 request the CEO to provide a letter of advice to confirm whether
30 the proposed activity is --
31 (a) an exempt activity; or
32 (b) a tier 1 activity; or
page 86
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
Due diligence assessment Division 2
s. 104
1 (c) a tier 2 activity; or
2 (d) a tier 3 activity.
3 (2) A request under subsection (1) must --
4 (a) be in writing; and
5 (b) contain details of --
6 (i) the proposed activity; and
7 (ii) the area where the proposed activity is intended
8 to be carried out.
9 (3) On receipt of a request under subsection (1), the CEO must
10 provide the proponent with the letter of advice if the CEO is
11 satisfied that --
12 (a) subsection (4) applies; and
13 (b) the proposed activity described in the letter can be
14 confirmed as --
15 (i) an exempt activity; or
16 (ii) a tier 1 activity; or
17 (iii) a tier 2 activity; or
18 (iv) a tier 3 activity.
19 (4) A letter of advice under subsection (3) must only be provided by
20 the CEO if the proposed activity described in the letter is an
21 activity in relation to which there is uncertainty as to whether or
22 not the activity is --
23 (a) an exempt activity; or
24 (b) a tier 1 activity; or
25 (c) a tier 2 activity; or
26 (d) a tier 3 activity.
27 (5) A letter of advice provided under subsection (3) may be used in
28 evidence in proceedings for an offence under Part 5 Division 2
29 in relation to the carrying out of the activity described in the
30 letter.
page 87
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 3 Persons to be notified or persons to be consulted about
activities or proposed activities
s. 105
1 (6) It is not a requirement for a proponent to request or obtain a
2 letter of advice under this section before carrying out an activity
3 in an area.
4 105. Responsibility for undertaking due diligence assessment
5 It is the responsibility of the proponent for a proposed activity to
6 undertake a due diligence assessment.
7 106. Related agreement may be used to satisfy some due diligence
8 requirements
9 Steps taken under a related agreement for an area to identify
10 whether Aboriginal cultural heritage is located in the area, or to
11 assess whether there is a risk of harm being caused to
12 Aboriginal cultural heritage located in the area by an activity,
13 may be used to satisfy the requirements of a due diligence
14 assessment referred to in section 102(c) or (d) in relation to a
15 proposed activity that the proponent intends to carry out in the
16 area.
17 Division 3 -- Persons to be notified or persons to be consulted
18 about activities or proposed activities
19 107. Persons to be notified or persons to be consulted about
20 activities or proposed activities
21 (1) The persons to be notified or the persons to be consulted about
22 an activity that a proponent is carrying out, or a proposed
23 activity that the proponent intends to carry out, in an area are the
24 following --
25 (a) each local ACH service for the area or a part of the area;
26 (b) if there is not a local ACH service for the area or a part
27 of the area --
28 (i) each native title party for the area or the part of
29 the area; and
page 88
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
Authority to carry out activity that may harm Aboriginal cultural Division 4
heritage
s. 108
1 (ii) each knowledge holder for the area or the part of
2 the area;
3 (c) if there is not a local ACH service, a native title party or
4 a knowledge holder for the area or a part of the area --
5 each native title representative body for the area or the
6 part of the area.
7 (2) In subsection (1)(b)(ii) --
8 each knowledge holder, in relation to an area or a part of an
9 area, means each person who is identified as a knowledge
10 holder for the area or a part of the area, after reasonable steps
11 have been taken to do so in accordance with the knowledge
12 holder guidelines.
13 108. Assistance to identify persons to be notified or persons to be
14 consulted
15 (1) A proponent may request the assistance of the CEO to identify
16 the persons to be notified or the persons to be consulted about
17 an activity that a proponent is carrying out, or a proposed
18 activity that the proponent intends to carry out, in an area.
19 (2) In response to a request under subsection (1), the CEO must
20 provide the proponent with reasonable assistance to identify the
21 persons.
22 Division 4 -- Authority to carry out activity that may harm
23 Aboriginal cultural heritage
24 109. Authority to carry out exempt activity
25 A person is authorised to carry out an activity that may harm
26 Aboriginal cultural heritage if --
27 (a) the activity is an exempt activity; and
28 (b) the area where the activity is carried out does not
29 include any area that is part of a protected area.
page 89
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 4 Authority to carry out activity that may harm Aboriginal cultural
heritage
s. 110
1 110. Authority to carry out tier 1 activity that may harm
2 Aboriginal cultural heritage
3 A person is authorised to carry out an activity that may harm
4 Aboriginal cultural heritage if --
5 (a) the activity is a tier 1 activity; and
6 (b) the area where the activity is carried out does not
7 include any area that is part of a protected area; and
8 (c) a due diligence assessment is undertaken in relation to
9 the carrying out of the activity; and
10 (d) the person takes all reasonable steps possible to avoid,
11 or minimise, the risk of harm being caused to Aboriginal
12 cultural heritage by the activity.
13 Note for this section:
14 The duty to mitigate set out in paragraph (d) applies in relation to
15 Aboriginal cultural heritage in an area even if an assessment was
16 made, in undertaking a due diligence assessment, that Aboriginal
17 cultural heritage was not located in the area.
18 111. Authority to carry out tier 2 activity that may harm
19 Aboriginal cultural heritage
20 A person is authorised to carry out an activity that may harm
21 Aboriginal cultural heritage if --
22 (a) the activity is a tier 2 activity; and
23 (b) the area where the activity is carried out does not
24 include any area that is part of a protected area; and
25 (c) a due diligence assessment is undertaken in relation to
26 the carrying out of the activity; and
27 (d) the person carries out the activity in accordance with --
28 (i) an ACH permit; or
29 (ii) an approved or authorised ACH management
30 plan.
page 90
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 112
1 112. Authority to carry out tier 3 activity that may harm
2 Aboriginal cultural heritage
3 A person is authorised to carry out an activity that may harm
4 Aboriginal cultural heritage if --
5 (a) the activity is a tier 3 activity; and
6 (b) the area where the activity is carried out does not
7 include any area that is part of a protected area; and
8 (c) a due diligence assessment is undertaken in relation to
9 the carrying out of the activity; and
10 (d) the person carries out the activity in accordance with an
11 approved or authorised ACH management plan.
12 Division 5 -- ACH permits
13 Subdivision 1 -- Notice of intention to carry out tier 2 activity
14 113. Notice of intention to carry out tier 2 activity
15 A proponent who intends to carry out a tier 2 activity in an area
16 that may harm Aboriginal cultural heritage must give to each of
17 the persons to be notified about the activity --
18 (a) written notice providing details of --
19 (i) the proposed activity; and
20 (ii) the area where the proponent intends to carry out
21 the activity;
22 and
23 (b) an opportunity to submit to the proponent, within the
24 prescribed period, a statement about the person's views
25 about the risk of harm being caused to Aboriginal
26 cultural heritage located in the area by the proposed
27 activity.
page 91
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 114
1 114. Notification carried out under related agreement
2 Notification carried out in an area in accordance with a related
3 agreement may be used to satisfy the notice requirements in
4 section 113 in relation to the area to the extent that the
5 notification complies with the requirements set out in that
6 section.
7 Subdivision 2 -- Grant of ACH permit
8 115. Application for ACH permit
9 (1) At the end of the period for submissions referred to in
10 section 113(b), a proponent who intends to carry out a tier 2
11 activity in an area may apply for an Aboriginal cultural heritage
12 permit (an ACH permit) to carry out the activity.
13 (2) An application for an ACH permit must --
14 (a) be made to the ACH Council in the approved form; and
15 (b) contain details of the proposed activity and the area to
16 which the permit is intended to relate; and
17 (c) identify --
18 (i) the Aboriginal cultural heritage located in the
19 area to which the permit is intended to relate, as
20 assessed in undertaking a due diligence
21 assessment in relation to the carrying out of the
22 proposed activity, or of which the proponent is
23 otherwise aware in the area; and
24 (ii) the characteristics of that Aboriginal cultural
25 heritage of which the proponent is aware;
26 and
27 (d) identify --
28 (i) whether there is a risk of harm being caused to
29 Aboriginal cultural heritage by the proposed
30 activity, as assessed in undertaking a due
page 92
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 116
1 diligence assessment in relation to the carrying
2 out of the proposed activity; and
3 (ii) if a risk of harm has been identified, that risk of
4 harm and the Aboriginal cultural heritage that is
5 at risk of harm;
6 and
7 (e) include details of the notice given under section 113(a),
8 including details of the persons who were notified; and
9 (f) set out how the proposed activity will be managed to
10 avoid, or minimise, the risk of harm being caused to
11 Aboriginal cultural heritage by the activity, including a
12 clear explanation of the steps, if any, that will be taken
13 to avoid, or minimise, that risk; and
14 (g) include any submissions made to the proponent under
15 section 113(b); and
16 (h) be accompanied by the documents or information, if
17 any, prescribed for the purposes of this paragraph.
18 116. Further information in support of application
19 (1) The ACH Council may make a written request to an applicant
20 for an ACH permit to do any of the following --
21 (a) provide the Council with any further information
22 relevant to the application that the Council requires to
23 assess the application;
24 (b) verify any further information by statutory declaration.
25 (2) A request under subsection (1) must specify the prescribed
26 period within which the request is to be complied with.
27 117. ACH Council may refuse to consider some applications
28 The ACH Council may refuse to consider, or consider further,
29 an application for an ACH permit if --
30 (a) the application is not made in accordance with this Act;
31 or
page 93
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 118
1 (b) the applicant has not complied with a request under
2 section 116.
3 118. ACH Council to give notice of application
4 (1) On receipt of an application under section 115(1), the
5 ACH Council must give written notice of the application, with
6 the application attached, to each of the persons to be notified
7 about the activity to which the application relates.
8 (2) The notice must provide that a person given the notice may
9 submit to the ACH Council, within the prescribed period, a
10 statement about the person's views on the proposal set out in the
11 application.
12 119. Decision of ACH Council on application for ACH permit
13 (1) The ACH Council must --
14 (a) assess each application for an ACH permit in
15 accordance with section 120(1); and
16 (b) have regard to --
17 (i) any submissions made to the proponent under
18 section 113(b); and
19 (ii) any further information provided in response to a
20 request under section 116(1); and
21 (iii) any submissions made to the Council under
22 section 118(2);
23 and
24 (c) make a decision --
25 (i) if it is satisfied as to the matters set out in
26 section 120(1) -- to grant an ACH permit; or
27 (ii) otherwise, to refuse to grant an ACH permit.
28 (2) A decision on an application must be made by the ACH Council
29 within the prescribed period.
page 94
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 120
1 (3) The prescribed period for making a decision on an application
2 does not include any period commencing on the day on which a
3 request is made under section 116(1) in respect of the
4 application and ending on the day on which the first of the
5 following occurs --
6 (a) the request is complied with;
7 (b) the period for complying with the request expires.
8 (4) If the ACH Council does not make a decision on an application
9 within the prescribed period, the applicant may make a written
10 request to the Minister to direct the Council to do anything that
11 the Minister considers necessary to expedite the matter.
12 (5) A direction given by the Minister in response to a request under
13 subsection (4) must --
14 (a) be in writing; and
15 (b) specify the period within which the direction must be
16 complied with.
17 (6) If the ACH Council does not comply with a direction made by
18 the Minister, the Minister may stand in the place of the Council
19 and decide the application in accordance with this Subdivision.
20 (7) The ACH Council must give written notice of the Council's
21 decision to --
22 (a) the applicant for the ACH permit; and
23 (b) each of the persons to be notified about the activity to
24 which the application relates.
25 120. Grant of ACH permit
26 (1) The ACH Council must grant an ACH permit if satisfied --
27 (a) that the proposed activity is a tier 2 activity; and
28 (b) that the area where the applicant intends to carry out the
29 activity does not include any area that is part of a
30 protected area; and
page 95
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 121
1 (c) that each of the persons to be notified about the
2 proposed activity under section 113(a) has been so
3 notified; and
4 (d) that the applicant will take all reasonable steps possible
5 to avoid, or minimise, the risk of harm being caused to
6 Aboriginal cultural heritage by the activity; and
7 (e) in relation to the other matters, if any, prescribed for the
8 purposes of this paragraph.
9 (2) The ACH Council must refuse to grant an ACH permit if it is
10 not satisfied as to the matters referred to in subsection (1).
11 (3) An ACH permit must be in an approved form and include
12 details of the following --
13 (a) the person to whom the permit is granted;
14 (b) the activity to which the permit relates;
15 (c) the area to which the permit relates;
16 (d) when the permit comes into effect;
17 (e) the conditions to which the permit is subject;
18 (f) the other matters, if any, prescribed for the purposes of
19 this paragraph.
20 121. Duration of ACH permit
21 An ACH permit --
22 (a) takes effect --
23 (i) when it is granted; or
24 (ii) on a later day, if any, specified in the permit;
25 and
26 (b) is of effect until the expiry of the period of 4 years after
27 the day on which the permit comes into effect unless the
28 permit is --
29 (i) earlier cancelled under section 130(1)(b); or
30 (ii) extended under section 126(1)(c)(i).
page 96
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 122
1 Subdivision 3 -- Extension of ACH permit
2 122. Application for extension of ACH permit
3 (1) The holder of an ACH permit may apply to the ACH Council
4 for the term of the permit to be extended.
5 (2) An application cannot be made under subsection (1) later than
6 90 days before the ACH permit is due to expire.
7 (3) Before making an application under subsection (1), the permit
8 holder must give to each of the persons to be notified about the
9 activity to which the permit relates --
10 (a) written notice including details of the proposed
11 extension; and
12 (b) an opportunity to submit to the permit holder, within the
13 prescribed period, a statement about the person's views
14 on the proposed extension.
15 (4) The application must --
16 (a) be made to the ACH Council in the approved form; and
17 (b) include details of the notice given under
18 subsection (3)(a), including details of the persons who
19 were notified; and
20 (c) include any submissions made to the permit holder
21 under subsection (3)(b).
22 123. Further information in support of application
23 (1) The ACH Council may make a written request to an applicant
24 for the extension of an ACH permit to do any of the
25 following --
26 (a) provide the Council with any further information
27 relevant to the application that the Council requires to
28 assess the application;
29 (b) verify any further information by statutory declaration.
page 97
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 124
1 (2) A request under subsection (1) must specify the prescribed
2 period within which the request is to be complied with.
3 124. ACH Council may refuse to consider some applications
4 The ACH Council may refuse to consider, or consider further,
5 an application for the extension of an ACH permit if --
6 (a) it is not made in accordance with this Act; or
7 (b) the applicant has not complied with a request under
8 section 123(1).
9 125. ACH Council to give notice of application for extension of
10 ACH permit
11 (1) On receipt of an application under section 122(1), the
12 ACH Council must give written notice of the application, with
13 the application attached, to each of the persons to be notified
14 about the activity to which the application relates.
15 (2) The notice must provide that a person given the notice may
16 submit to the ACH Council, within the prescribed period, a
17 statement about the person's views on the proposal set out in the
18 application.
19 126. Decision on application for extension of ACH permit
20 (1) The ACH Council must --
21 (a) assess each application for an extension of an
22 ACH permit in accordance with section 120(1) as if the
23 application for the extension of the permit were an
24 application for the grant of the permit; and
25 (b) have regard to --
26 (i) any submissions made to the permit holder under
27 section 122(3)(b); and
28 (ii) any further information provided in response to a
29 request under section 123(1); and
page 98
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 126
1 (iii) any submissions made to the Council under
2 section 125(2);
3 and
4 (c) make a decision --
5 (i) if it is satisfied as to the matters set out in
6 section 120(1) -- to extend the ACH permit; or
7 (ii) otherwise, to refuse to extend the ACH permit.
8 (2) A decision on the application must be made by the
9 ACH Council within the prescribed period.
10 (3) The prescribed period for making a decision on an application
11 does not include any period commencing on the day on which a
12 request is made under section 123(1) in respect of the
13 application and ending on the day on which the first of the
14 following occurs --
15 (a) the request is complied with;
16 (b) the period for complying with the request expires.
17 (4) If the ACH Council does not make a decision on an application
18 within the prescribed period the applicant may make a written
19 request to the Minister to direct the Council to do anything that
20 the Minister considers necessary to expedite the matter.
21 (5) A direction given by the Minister in response to a request under
22 subsection (4) must --
23 (a) be in writing; and
24 (b) specify the period within which the direction must be
25 complied with.
26 (6) If the ACH Council does not comply with a direction given by
27 the Minister within the period specified, the Minister may stand
28 in the place of the Council and decide the application in
29 accordance with this Subdivision.
page 99
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 127
1 (7) The ACH Council must give written notice of the Council's
2 decision to --
3 (a) the applicant for the extension of the ACH permit; and
4 (b) each of the persons to be notified about the activity to
5 which the application relates.
6 (8) An ACH permit that is extended under this section is of effect
7 until the expiry of the period of 2 years after the day on which
8 the permit is extended unless the permit is --
9 (a) earlier cancelled under section 130(1)(b); or
10 (b) further extended under this section.
11 Subdivision 4 -- Other matters
12 127. ACH Council must be notified of transfer of ACH permit
13 (1) If the holder of an ACH permit transfers the permit to another
14 person, the permit holder and the person to whom the permit is
15 transferred must, within the prescribed period, give written
16 notice of the transfer to the ACH Council.
17 Penalty for this subsection: a fine of $10 000.
18 (2) On receipt of a notice under subsection (1), the ACH Council
19 must give written notice about the identity of the person to
20 whom the permit is transferred to each of the persons to be
21 notified about the activity to which the permit relates.
22 128. Conditions
23 (1) It is a condition of an ACH permit that --
24 (a) the permit holder must notify the ACH Council if the
25 permit holder becomes aware, while the permit is of
26 effect, of any new information about Aboriginal cultural
27 heritage in the area to which the permit relates; and
28 (b) the permit holder must comply with the reporting
29 requirements, if any, specified in the permit; and
page 100
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 128
1 (c) a Part 7 order given in relation to an activity to which
2 the permit relates must be complied with.
3 (2) An ACH permit may be granted or extended subject to any
4 other conditions that the ACH Council considers appropriate to
5 ensure that the activity to which the permit relates is managed
6 so as to avoid, or minimise, the risk of harm being caused to
7 Aboriginal cultural heritage by the activity in the area to which
8 the permit relates.
9 (3) If the ACH Council becomes aware of new information about
10 Aboriginal cultural heritage in the area to which a permit relates
11 (due to being notified by the permit holder or otherwise), the
12 Council may, by written notice given to the permit holder,
13 impose or amend a condition on the permit as the Council
14 considers appropriate to ensure that the activity to which the
15 permit relates is managed so as to avoid, or minimise, the risk of
16 harm being caused to Aboriginal cultural heritage by the activity
17 in the area.
18 (4) A notice given under subsection (3) takes effect on the day
19 specified in the notice.
20 (5) The day specified in a notice given under subsection (3) cannot
21 be before the permit holder has had a reasonable opportunity
22 to --
23 (a) make submissions to the ACH Council in relation to the
24 condition or the amended condition; and
25 (b) take any action necessary to comply with the condition
26 or amended condition.
27 (6) The ACH Council may, at any time, by written notice given to
28 the holder of an ACH permit, revoke a condition, other than a
29 condition referred to in subsection (1), that is imposed on the
30 permit.
page 101
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 129
1 (7) The ACH Council may exercise a power under
2 subsection (6) --
3 (a) on the Council's own initiative; or
4 (b) on receipt of an application by the permit holder.
5 (8) The ACH Council must, within the prescribed period, give
6 written notice to each of the persons to be notified about the
7 activity to which the permit relates of the Council's decision
8 to --
9 (a) impose or amend a condition on a permit under
10 subsection (3); or
11 (b) revoke a condition imposed on a permit under
12 subsection (6).
13 129. Amendment of ACH permit area
14 (1) The ACH Council must, at the written direction of the Minister
15 under section 81(3)(a), amend the area to which an ACH permit
16 relates to exclude from that area any area that is part of the area
17 to be declared as a protected area under Part 4 Division 5.
18 (2) The ACH Council must, within the prescribed period, give
19 written notice of the amendment of the area to which an ACH
20 permit relates under subsection (1) to --
21 (a) the holder of the ACH permit; and
22 (b) each of the persons to be notified about the activity to
23 which the permit relates.
24 130. Suspension or cancellation of ACH permit
25 (1) The ACH Council may, by written notice given to the holder of
26 an ACH permit, take either of the following actions --
27 (a) suspend the permit for a specified period;
28 (b) cancel the permit.
page 102
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 130
1 (2) A notice under subsection (1) may be given only if --
2 (a) the ACH Council is no longer satisfied about the matters
3 set out in section 120(1); or
4 (b) the ACH permit holder carries out an activity in the area
5 to which the permit relates that --
6 (i) may harm Aboriginal cultural heritage; and
7 (ii) is not authorised under the permit;
8 or
9 (c) the permit holder breaches a condition imposed on the
10 permit.
11 (3) A notice given under subsection (1) --
12 (a) must set out the grounds on which the action is taken;
13 and
14 (b) takes effect on the day specified in the notice.
15 (4) Before taking action under subsection (1), the ACH Council
16 must give the permit holder --
17 (a) written notice of --
18 (i) the action that the Council proposes to take; and
19 (ii) the grounds on which it proposes to take that
20 action;
21 and
22 (b) a reasonable opportunity to be heard on the matter.
23 (5) If an ACH permit is suspended, it is of no effect during the
24 period of the suspension.
25 (6) The ACH Council must give written notice to each of the
26 persons to whom notice was given in relation to the grant of the
27 permit under section 113(a) of the Council's decision to take
28 action under subsection (1).
page 103
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 5 ACH permits
s. 131
1 131. Objection to decision of ACH Council
2 (1) The applicant for an ACH permit may, within the prescribed
3 period, object in writing to the Minister if the ACH Council
4 refuses to grant the permit under section 119(1)(c)(ii).
5 (2) The holder of an ACH permit may, within the prescribed period,
6 object in writing to the Minister if the ACH Council --
7 (a) refuses to extend the permit under section 126(1)(c)(ii);
8 or
9 (b) grants or extends the permit subject to conditions under
10 section 128(2); or
11 (c) imposes or amends a condition on the permit under
12 section 128(3); or
13 (d) revokes a condition on the permit under section 128(6);
14 or
15 (e) suspends or cancels the permit under section 130(1).
16 (3) On receipt of an objection under this section, the Minister must
17 give a written direction to the ACH Council to provide to the
18 Minister --
19 (a) the information that was provided to the Council at the
20 time when the decision to which the objection relates
21 was made; and
22 (b) the reasons of the Council for the decision, and any
23 other information that, in the opinion of the Council, is
24 relevant to the decision.
25 (4) A person who objects under this section must, within the
26 prescribed period, give notice of the objection to each of the
27 persons to be notified about the activity to which the
28 application, or permit, relates, as the case requires.
page 104
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH permits Division 5
s. 132
1 (5) The Minister may make a written request to a person who
2 objects under this section to do any of the following --
3 (a) provide the Minister with any further information
4 relevant to the objection that the Minister requires to
5 assess the objection;
6 (b) verify any further information by statutory declaration.
7 (6) Having considered the information provided by the
8 ACH Council under subsection (3) and any further information
9 provided in response to a request under subsection (5) the
10 Minister must --
11 (a) confirm the decision made by the ACH Council; or
12 (b) make another decision.
13 (7) The decision of the Minister under subsection (6) must be made
14 on the grounds of --
15 (a) whether or not the Minister is satisfied as to the matters
16 set out in section 120(1); and
17 (b) what is in the interests of the State.
18 (8) The Minister must ensure that written notice of the decision is
19 given within 14 days after the decision is made under
20 subsection (6) to --
21 (a) the person making the objection; and
22 (b) each of the persons to be notified about the activity to
23 which the application or the ACH permit relates.
24 (9) The notice must contain the following --
25 (a) a description of the decision;
26 (b) short particulars of the reasons for the decision.
27 132. Notice of decision must be given
28 (1) The ACH Council must give to a person who has a right under
29 section 131(1) or (2) to object to the Minister about a decision
30 written notice in accordance with this section.
page 105
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 133
1 (2) The notice must be given within 14 days after the decision is
2 made.
3 (3) The notice must contain the following --
4 (a) a description of the decision;
5 (b) short particulars of the reasons for the decision;
6 (c) a statement that the person has a right to object, within
7 the prescribed period under section 131(1), to the
8 Minister about the decision within the period specified
9 in the notice.
10 133. Contravention of conditions on ACH permit
11 A person who holds an ACH permit must not contravene a
12 condition to which the permit is subject.
13 Penalty: a fine of $20 000.
14 Division 6 -- ACH management plans
15 Subdivision 1 -- Preliminary
16 134. When ACH management plan required
17 (1) An approved or authorised ACH management plan is required
18 before the commencement of a tier 3 activity that may harm
19 Aboriginal cultural heritage.
20 (2) An ACH management plan that has been authorised under
21 section 165(1)(b)(i) is required before the commencement of a
22 tier 3 activity --
23 (a) that may harm Aboriginal cultural heritage determined
24 under section 176(1)(b)(i) to be of State significance for
25 the purposes of this Act; or
26 (b) if the proponent and each interested Aboriginal party for
27 the plan do not agree about the terms of an
28 ACH management plan.
page 106
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 135
1 (3) An approved or authorised ACH management plan may also be
2 in relation to a tier 2 activity.
3 135. Meaning of interested Aboriginal party for ACH
4 management plan
5 (1) Each of the following persons is an interested Aboriginal party
6 for an ACH management plan that relates to the carrying out of
7 a proposed activity in an area --
8 (a) each person designated as a local ACH service for the
9 area or a part of the area;
10 (b) if there is not a person designated as a local ACH
11 service for the area or a part of the area --
12 (i) each native title party for the area or the part of
13 the area; or
14 (ii) if there is not a native title party for the area or
15 the part of the area -- each native title
16 representative body for the area or the part of the
17 area.
18 (2) An interested Aboriginal party for an ACH management plan
19 that relates to the carrying out of a proposed activity in an area
20 may agree to be an Aboriginal party to the plan.
21 136. Assistance to identify each interested Aboriginal party
22 (1) A proponent may request the assistance of the CEO to identify
23 each person that is an interested Aboriginal party for an ACH
24 management plan.
25 (2) In response to a request under subsection (1), the CEO must
26 provide the proponent with reasonable assistance to identify
27 each person that is an interested Aboriginal party for the plan.
page 107
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 137
1 137. ACH management plan
2 (1) An Aboriginal cultural heritage management plan (an
3 ACH management plan) is a plan for the management of an
4 activity that may harm Aboriginal cultural heritage.
5 (2) An ACH management plan must --
6 (a) identify --
7 (i) the proponent for the activity to which the plan
8 relates; and
9 (ii) each Aboriginal party, if any, to the plan; and
10 (iii) the area to which the plan relates (which must
11 not include any area that is part of a protected
12 area); and
13 (iv) the activity to which the plan relates;
14 and
15 (b) identify --
16 (i) the Aboriginal cultural heritage located in the
17 area to which the plan relates, as assessed in
18 undertaking a due diligence assessment in
19 relation to the carrying out of the proposed
20 activity, or of which the proponent is otherwise
21 aware in the area; and
22 (ii) the characteristics of that Aboriginal cultural
23 heritage of which the proponent is aware;
24 and
25 (c) include an ACH impact statement in respect of the
26 proposed activity; and
27 (d) set out the processes to be followed if, while approval or
28 authorisation of the plan is of effect, a party to the plan
29 becomes aware of new information about Aboriginal
30 cultural heritage in the area to which the plan relates;
31 and
page 108
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 138
1 (e) set out how the proposed activity will be managed,
2 where possible, to avoid, or minimise, the risk of harm
3 being caused to Aboriginal cultural heritage by the
4 activity, including a clear explanation of the steps, if
5 any, that will be taken to avoid, or minimise, that risk;
6 and
7 (f) set out the extent to which harm to Aboriginal cultural
8 heritage is authorised; and
9 (g) set out any conditions that must be complied with
10 before, during and after the proposed activity is carried
11 out; and
12 (h) specify the period for which the plan is to have effect;
13 and
14 (i) include or set out the other matters, if any, prescribed for
15 the purposes of this paragraph.
16 Note for this subsection:
17 There may not be an Aboriginal party to an ACH management plan to
18 identify under paragraph (a)(ii) in relation to the area to which the plan
19 relates, or a part of that area. This may be because an interested
20 Aboriginal party for an ACH management plan has not agreed to be an
21 Aboriginal party to the plan.
22 (3) An ACH management plan must not include any details of
23 commercial arrangements between a proponent and an
24 Aboriginal party.
25 138. Provisions in related agreement
26 A provision that is included in a related agreement for an area
27 may be incorporated into, and form part of, an
28 ACH management plan to the extent that the provision relates to
29 any matter specified in section 137(2) in relation to the area to
30 which the plan relates.
page 109
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 139
1 139. Obligation to consult on ACH management plan
2 (1) A proponent who intends to carry out an activity under an
3 ACH management plan must consult with each of the persons to
4 be consulted about the proposed activity.
5 (2) Consultation must be carried out within a reasonable time and in
6 accordance with the consultation guidelines.
7 140. Consultation carried out under related agreement
8 Consultation carried out in accordance with a related agreement
9 for an area may be used to satisfy the requirements set out in
10 section 139 in relation to the area to which the
11 ACH management plan relates to the extent that the consultation
12 complies with the requirements in that section.
13 141. Proponent must take steps to identify and understand
14 characteristics of Aboriginal cultural heritage in area
15 A proponent who intends to carry out an activity under an
16 ACH management plan must take reasonable steps to identify,
17 and obtain an understanding of the characteristics of, the
18 Aboriginal cultural heritage located in the area to which the plan
19 is to relate.
20 142. Notice about proposed ACH management plan to each
21 interested Aboriginal party
22 (1) A proponent who intends to carry out an activity in an area
23 under an ACH management plan must give written notice about
24 the plan to --
25 (a) each interested Aboriginal party; and
26 (b) the ACH Council.
page 110
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 143
1 (2) Notice under subsection (1) must state the proponent's intention
2 to --
3 (a) use its best endeavours to reach agreement with each
4 interested Aboriginal party about the terms of an
5 ACH management plan; and
6 (b) enter into an ACH management plan.
7 (3) Notice under subsection (1) cannot be given until after the
8 proponent has satisfied the requirements set out --
9 (a) in section 139, in relation to consultation about the
10 proposed activity; and
11 (b) in section 141, in relation to identifying, and obtaining
12 an understanding of the characteristics of, the Aboriginal
13 cultural heritage located in the area to which the plan is
14 to relate.
15 143. Reaching agreement about ACH management plan
16 (1) The proponent and each interested Aboriginal party must use
17 their best endeavours to reach agreement about the terms of an
18 ACH management plan.
19 (2) The period for reaching agreement is --
20 (a) the prescribed period commencing on the day that is
21 5 days after the day on which the proponent gives
22 written notice under section 142(1); or
23 (b) a longer period --
24 (i) agreed by the proponent and each interested
25 Aboriginal party; or
26 (ii) imposed by the ACH Council, by written notice
27 given to the proponent and each interested
28 Aboriginal party.
page 111
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 144
1 144. Application for approval of ACH management plan if
2 agreement reached
3 An application for the approval of an ACH management plan
4 may be made under Subdivision 2 if the proponent and each
5 interested Aboriginal party agree on the plan.
6 145. Application for authorisation of ACH management if
7 agreement not reached
8 An application for the authorisation of an ACH management
9 plan may be made under Subdivision 3 if the proponent and
10 each interested Aboriginal party do not agree on a plan within
11 the period specified under section 143(2).
12 Subdivision 2 -- Approval of ACH management plan
13 146. Informed consent
14 (1) For the purposes of this Subdivision, the consent of an
15 interested Aboriginal party for an ACH management plan
16 cannot be informed consent unless --
17 (a) the proponent has given to the interested Aboriginal
18 party full and proper disclosure of information about the
19 activity that the proponent intends to carry out under the
20 plan; and
21 (b) the consent is given voluntarily and without coercion,
22 intimidation or manipulation.
23 (2) In subsection (1)(a) --
24 information, about an activity, includes a clear explanation
25 about --
26 (a) what the activity will involve, including --
27 (i) the method the proponent intends to use to carry
28 out the activity (the preferred method); and
page 112
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 147
1 (ii) if applicable, each other feasible method
2 available to the proponent to carry out the
3 activity (a feasible alternative method);
4 and
5 (b) in relation to the preferred method, and each feasible
6 alternative method available to the proponent --
7 (i) a clear explanation of the risk of reasonably
8 foreseeable harm being caused to Aboriginal
9 cultural heritage by the activity using that
10 method; and
11 (ii) the nature of the harm to Aboriginal cultural
12 heritage that is risked by the carrying out of the
13 activity using that method;
14 and
15 (c) in relation to the preferred method -- a clear
16 explanation of how the activity will be managed to
17 avoid, or minimise, the risk of harm being caused to
18 Aboriginal cultural heritage by the activity using that
19 method, including a clear explanation of the steps, if
20 any, that will be taken to avoid or minimise that risk.
21 147. Application for approval of ACH management plan
22 (1) A proponent may apply to the ACH Council for approval of an
23 ACH management plan that relates to the carrying out of an
24 activity in an area if the proponent and each interested
25 Aboriginal party for the plan has agreed the terms of the plan.
26 (2) An application for the approval of an ACH management plan
27 must --
28 (a) be made to the ACH Council in the approved form; and
29 (b) include the plan agreed to by the proponent and each
30 interested Aboriginal party for the plan; and
31 (c) include evidence that each interested Aboriginal party
32 for the plan has given informed consent to the plan; and
page 113
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 148
1 (d) include a summary of the information, about the activity
2 that the proponent intends to carry out under the plan,
3 that was disclosed to each interested Aboriginal party
4 for the plan in accordance with section 146(1)(a); and
5 (e) include details of the consultation about the carrying out
6 of the activity that has been conducted with each of the
7 persons to be consulted; and
8 (f) include any responses to the proposal to carry out the
9 activity that were provided to the proponent by a person
10 who was consulted; and
11 (g) be accompanied by the other documents and
12 information, if any, prescribed for the purposes of this
13 paragraph.
14 Note for this section:
15 If the ACH Council makes a determination under section 176(1)(b)(i)
16 that Aboriginal cultural heritage is of State significance for the
17 purposes of this Act, section 177(1)(a) provides that an application for
18 the approval of the ACH management plan must be considered as if it
19 were an application under section 157(1) for the authorisation of the
20 plan.
21 148. Further information in support of application
22 (1) The ACH Council may make a written request to an applicant
23 for approval of an ACH management plan or an interested
24 Aboriginal party for the plan to do any of the following --
25 (a) provide the Council with any further information
26 relevant to the application that the Council requires to
27 assess the application;
28 (b) verify any further information by statutory declaration.
29 (2) A request under subsection (1) must specify the prescribed
30 period within which the request must be complied with.
page 114
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 149
1 149. ACH Council may refuse to consider some applications
2 The ACH Council may refuse to consider, or consider further,
3 an application for the approval of an ACH management plan
4 if --
5 (a) the application is not made in accordance with this Act;
6 or
7 (b) the applicant does not comply with a request under
8 section 148.
9 150. Decision of ACH Council
10 (1) The ACH Council must --
11 (a) assess each application under section 147(1), including
12 any further information provided in response to a
13 request under section 148(1); and
14 (b) make a decision to --
15 (i) approve the ACH management plan to which the
16 application relates; or
17 (ii) refuse to approve the ACH management plan to
18 which the application relates.
19 (2) A decision on an application must be made by the ACH Council
20 within the prescribed period.
21 (3) The prescribed period for making a decision on an application
22 does not include --
23 (a) any period commencing on the day on which a request is
24 made under section 148(1) in respect of the application
25 and ending on the day on which the first of the
26 following occurs --
27 (i) the request is complied with;
28 (ii) the prescribed period for complying with the
29 request expires;
30 or
page 115
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 150
1 (b) any period --
2 (i) commencing on the day on which public notice
3 is given under section 175(2) in respect of the
4 Aboriginal cultural heritage that may be harmed
5 by the activity to which the plan relates; and
6 (ii) ending on the day on which the ACH Council
7 makes a determination under
8 section 176(1)(b)(ii) that the Aboriginal cultural
9 heritage is not of State significance for the
10 purposes of this Act.
11 Note for this subsection:
12 For paragraph (b), if the ACH Council makes a determination under
13 section 176(1)(b)(i) that the Aboriginal cultural heritage is of State
14 significance for the purposes of this Act, section 177(1)(a) provides
15 that an application for the approval of the ACH management plan must
16 be considered as if it were an application under section 157(1) for the
17 authorisation of the plan.
18 (4) If the ACH Council does not make a decision within the
19 prescribed period, the applicant may make a written request to
20 the Minister to direct the Council to do anything that the
21 Minister considers necessary to expedite the matter.
22 (5) A direction given by the Minister in response to a request under
23 subsection (4) must --
24 (a) be in writing; and
25 (b) specify the period within which the direction must be
26 complied with.
27 (6) If the ACH Council does not comply with a direction made by
28 the Minister, the Minister may stand in the place of the Council
29 and make a decision on the application in accordance with this
30 Subdivision.
31 (7) The ACH Council must ensure that written notice of a decision
32 on an application is given within 14 days after the decision is
33 made under subsection (1)(b) to the parties to the ACH
34 management plan.
page 116
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 151
1 (8) The notice must contain the following --
2 (a) a description of the decision;
3 (b) short particulars of the reasons for the decision.
4 151. Approval of ACH management plan
5 The ACH Council may approve an ACH management plan only
6 if satisfied --
7 (a) that the activity to which the plan relates is an activity
8 that may harm Aboriginal cultural heritage located in the
9 area to which the plan relates; and
10 (b) that the area to which the plan relates does not include
11 any area that is part of a protected area; and
12 (c) that the Aboriginal cultural heritage is not of State
13 significance and does not need to be dealt with under
14 Subdivision 5; and
15 (d) that there has been consultation with each person to be
16 consulted about the activity; and
17 (e) that each interested Aboriginal party for the plan has
18 given informed consent to the plan; and
19 (f) in relation to the other matters, if any, prescribed for the
20 purposes of this paragraph.
21 152. Duration of ACH management plan approval
22 The approval of an ACH management plan under
23 section 150(1)(b)(i) --
24 (a) takes effect on the day of the approval or on a later day,
25 if any, specified in the notice given under section 150(7)
26 of the decision to approve the plan; and
27 (b) is of effect, other than during any period when the
28 approval is suspended under section 154(1)(a), until
29 whichever of the following occurs first --
30 (i) the approval of the plan is cancelled under
31 section 154(1)(b);
page 117
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 153
1 (ii) the plan expires in accordance with its terms;
2 (iii) the activities to which the plan relates are
3 completed.
4 153. Conditions
5 It is a condition of an approval of an ACH management plan
6 that --
7 (a) a party to the plan must notify the ACH Council if the
8 party becomes aware, while the approval of the plan is
9 of effect, of any new information about Aboriginal
10 cultural heritage in the area to which the plan relates;
11 and
12 (b) the proponent must comply with the reporting
13 requirements, if any, specified in the plan; and
14 (c) a Part 7 order given in relation to an activity to which
15 the plan relates must be complied with.
16 154. Suspension or cancellation of ACH management plan
17 approval
18 (1) The Minister may, by written notice given to the parties to an
19 ACH management plan approved under section 150(1)(b)(i),
20 take either of the following actions --
21 (a) suspend the approval for a specified period;
22 (b) cancel the approval.
23 (2) A notice under subsection (1) may be given only if --
24 (a) the Minister is not satisfied that the matters set out in
25 section 151 still apply; or
26 (b) the proponent carries out an activity in the area to which
27 the ACH management plan relates that --
28 (i) may harm Aboriginal cultural heritage; and
29 (ii) is not in accordance with the plan;
30 or
page 118
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 155
1 (c) the proponent contravenes a condition to which the
2 approval is subject.
3 (3) A notice given under subsection (1) --
4 (a) must set out the grounds on which the action is taken;
5 and
6 (b) takes effect on the day specified in it.
7 (4) Before taking action under subsection (1), the Minister must
8 give the parties to the ACH management plan --
9 (a) written notice of --
10 (i) the action that the Minister proposes to take; and
11 (ii) the grounds on which the Minister proposes to
12 take that action;
13 and
14 (b) a reasonable opportunity to be heard on the matter.
15 (5) If approval of an ACH management plan is suspended, it is of
16 no effect during the period of the suspension.
17 155. Objection to decision of ACH Council
18 (1) A party to an ACH management plan may, within the prescribed
19 period, object in writing to the Minister if the ACH Council --
20 (a) refuses to approve the plan under section 150(1)(b)(ii);
21 or
22 (b) refuses to approve an amended ACH management plan
23 under section 169(1).
24 (2) On receipt of an objection under subsection (1), the Minister
25 must give a written direction to the ACH Council to provide to
26 the Minister --
27 (a) the information that was provided to the Council at the
28 time when the decision to which the objection relates
29 was made; and
page 119
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 156
1 (b) the reasons of the Council for the decision, and any
2 other information that, in the opinion of the Council, is
3 relevant to the decision.
4 (3) The Minister may make a written request to any of the parties to
5 the ACH management plan to do any of the following --
6 (a) provide the Minister with any further information
7 relevant to the objection that the Minister requires to
8 assess the objection;
9 (b) verify any further information by statutory declaration.
10 (4) Having considered the information provided by the
11 ACH Council under subsection (2) and any further information
12 provided in response to a request under subsection (3), the
13 Minister must --
14 (a) confirm the decision made by the Council; or
15 (b) make another decision.
16 (5) The decision of the Minister under subsection (4) must be made
17 on the grounds of --
18 (a) whether or not the Minister is satisfied as to the matters
19 set out in section 151; and
20 (b) what is in the interests of the State.
21 (6) The Minister must ensure that written notice of the decision is
22 given within 14 days after the decision is made under
23 subsection (4) to the parties to the ACH management plan.
24 (7) The notice must contain the following --
25 (a) a description of the decision;
26 (b) short particulars of the reasons for the decision.
27 156. Notice of decision must be given
28 (1) The ACH Council must give to a person written notice of a
29 decision of the Council if the person has a right under
30 section 155(1) to object to the Minister about the decision.
page 120
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 157
1 (2) The notice must be given within 14 days after the decision is
2 made.
3 (3) The notice must contain the following --
4 (a) a description of the decision;
5 (b) short particulars of the reasons for the decision;
6 (c) a statement that the person has a right to object, within
7 the prescribed period under section 155(1), to the
8 Minister about the decision.
9 Subdivision 3 -- Authorisation of ACH management plan by
10 Minister
11 157. Application for authorisation of ACH management plan
12 (1) A proponent may apply to the ACH Council for the
13 authorisation of an ACH management plan by the Minister if --
14 (a) the proponent intends to carry out an activity that may
15 harm Aboriginal cultural heritage; and
16 (b) the period specified under section 143(2) for reaching
17 agreement on a plan for the management of the
18 proposed activity has ended; and
19 (c) the proponent has not been able to reach agreement with
20 each interested Aboriginal party about the terms of a
21 plan.
22 (2) An application for the authorisation of an ACH management
23 plan by the Minister must --
24 (a) be made to the ACH Council in the approved form; and
25 (b) include the plan proposed by the proponent; and
26 (c) identify each interested Aboriginal party for the plan;
27 and
28 (d) include details of the consultation about the carrying out
29 of the activity that has been conducted with each of the
30 persons to be consulted; and
page 121
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 158
1 (e) include any responses to the proposal to carry out the
2 activity that were provided to the proponent by a person
3 who was consulted; and
4 (f) include details of the negotiation that has been carried
5 out under section 143(1) between the proponent and
6 each interested Aboriginal party, including --
7 (i) a summary of the issues that are in dispute
8 between the proponent and each interested
9 Aboriginal party; and
10 (ii) evidence that the proponent used their best
11 endeavours to reach agreement about the terms
12 of a plan;
13 and
14 (g) be accompanied by the other documents or information,
15 if any, prescribed for the purposes of this paragraph.
16 158. Further information in support of application
17 (1) The ACH Council may make a written request to the applicant
18 for authorisation of an ACH management plan or an interested
19 Aboriginal party for the plan, to do any of the following --
20 (a) provide the Council with any further information
21 relevant to the application that the Council requires to
22 assess the application;
23 (b) verify any further information by statutory declaration.
24 (2) A request under subsection (1) must specify the prescribed
25 period within which the request must be complied with.
26 159. ACH Council may refuse to consider some applications
27 The ACH Council may refuse to consider, or consider further,
28 an application if --
29 (a) the application is not made in accordance with this Act;
30 or
page 122
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 160
1 (b) the applicant has not complied with a request under
2 section 158.
3 160. Assistance to reach agreement on ACH management plan
4 (1) If an application for the authorisation of an ACH management
5 plan to carry out an activity is made under section 157(1), the
6 ACH Council may --
7 (a) assist the applicant and each interested Aboriginal party
8 (the proposed parties) to reach agreement about the
9 terms of an ACH management plan in respect of the
10 activity; and
11 (b) for that purpose, act as a mediator.
12 (2) The ACH Council must give written notice to the proposed
13 parties of an offer under subsection (1) to assist them to reach
14 agreement about the terms of an ACH management plan.
15 (3) The period during which the offer by the ACH Council to assist
16 the proposed parties to reach agreement about the terms of an
17 ACH management plan can be utilised by the proposed parties
18 ends on the day specified by the Council in written notice given
19 to the proposed parties.
20 (4) In assisting the proposed parties to reach agreement the
21 ACH Council may --
22 (a) request the applicant to submit an amended
23 ACH management plan; or
24 (b) request an interested Aboriginal party to submit an
25 ACH management plan; or
26 (c) propose an ACH management plan for the consideration
27 of the proposed parties.
28 (5) If the ACH Council is acting as a mediator under
29 subsection (1)(b), it must not use or disclose information to
page 123
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 161
1 which it has had access only because it provided assistance
2 under subsection (1) other than --
3 (a) for the purposes of --
4 (i) providing that assistance; or
5 (ii) establishing whether an interested Aboriginal
6 party has given informed consent to an
7 ACH management plan;
8 or
9 (b) with the prior written consent of the person who
10 provided the Council with the information.
11 (6) For the purposes of this section, the ACH Council may appoint
12 another person (a mediator) to perform the functions of the
13 Council under this section in relation to assisting the proposed
14 parties to reach agreement and acting as a mediator.
15 (7) Section 305 applies to a mediator in respect of the mediator's
16 performance or purported performance of a function described
17 in subsection (6).
18 161. ACH Council may approve ACH management plan if
19 agreement reached
20 (1) If, during consideration of an application for the authorisation of
21 an ACH management plan under section 157(1), the applicant
22 and each interested Aboriginal party advise the ACH Council
23 that they have reached agreement on the terms of the plan, the
24 Council may consider the application as an application made
25 under section 147(1) for approval of the agreed plan.
26 (2) This section does not apply if the ACH Council has made a
27 determination under section 176(1)(b)(i) that Aboriginal cultural
28 heritage located in the area to which the ACH management plan
29 relates is of State significance for the purposes of this Act.
page 124
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 162
1 162. Recommendation of ACH Council
2 (1) The ACH Council must --
3 (a) assess each application for the authorisation of an
4 ACH management plan in accordance with
5 section 163(1); and
6 (b) make a recommendation that the Minister --
7 (i) authorise the ACH management plan included
8 with the recommendation; or
9 (ii) refuse to authorise an ACH management plan for
10 the activity to which the application relates.
11 (2) A recommendation to the Minister under subsection (1)(b) must
12 be made by the ACH Council within the prescribed period.
13 (3) The ACH Council must give written notice of the Council's
14 recommendation to the Minister under subsection (1)(b) to the
15 applicant and to each interested Aboriginal party for the ACH
16 management plan.
17 (4) The prescribed period for making a recommendation on an
18 application does not include --
19 (a) any period commencing on the day on which a request is
20 made in respect of the application under section 158(1)
21 and ending on the day on which the first of the
22 following occurs --
23 (i) the request is complied with;
24 (ii) the prescribed period for complying with the
25 request expires;
26 or
27 (b) any period --
28 (i) commencing on the day on which the
29 ACH Council gives notice to the parties under
30 section 160(2); and
page 125
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 163
1 (ii) ending on the day specified in the notice given to
2 the parties by the ACH Council under
3 section 160(3);
4 or
5 (c) any period --
6 (i) commencing on the day on which public notice
7 is given under section 175(2) in respect of the
8 Aboriginal cultural heritage that may be harmed
9 by the activity to which the plan relates; and
10 (ii) ending on the day on which the ACH Council
11 makes a determination under section 176(1)(b)
12 about whether the Aboriginal cultural heritage is
13 of State significance for the purposes of this Act.
14 (5) If the ACH Council does not make a recommendation to the
15 Minister within the prescribed period, the applicant may make a
16 written request to the Minister to direct the Council to do
17 anything that the Minister considers necessary to expedite the
18 matter.
19 (6) A direction given by the Minister in response to a request under
20 subsection (5) must --
21 (a) be in writing; and
22 (b) specify the period within which the direction must be
23 complied with.
24 (7) If the ACH Council does not comply with a direction made by
25 the Minister, the Minister may make a decision on the
26 application under section 165(1)(b), and may request further
27 information under section 164, without having received a
28 recommendation from the Council.
29 163. Recommendation of ACH management plan
30 (1) The ACH Council may recommend to the Minister under
31 section 162(1)(b)(i) that an ACH management plan be
page 126
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 164
1 authorised in respect of an activity only if the Council is
2 satisfied --
3 (a) that the activity is an activity that may harm Aboriginal
4 cultural heritage located in the area to which the plan
5 relates; and
6 (b) that the area to which the plan relates does not include
7 any area that is part of a protected area; and
8 (c) that there has been consultation with each person to be
9 consulted about the activity; and
10 (d) that the plan provides for the activity to be managed to
11 avoid, or minimise, the risk of harm being caused to
12 Aboriginal cultural heritage by the activity; and
13 (e) in relation to the other matters, if any, prescribed for the
14 purposes of this paragraph.
15 (2) The ACH Council may recommend under section 162(1)(b)(i)
16 that the Minister authorise an ACH management plan that is any
17 of the following --
18 (a) the ACH management plan included with the
19 application under section 157(1);
20 (b) if section 177(1)(a) applies -- the ACH management
21 plan included with the application under section 147(1);
22 (c) an ACH management plan submitted or proposed under
23 section 160(4);
24 (d) another ACH management plan prepared by the
25 Council.
26 164. Minister may request further information
27 If the ACH Council makes a recommendation to the Minister
28 under section 162(1)(b) in respect of an application for the
29 authorisation of an ACH management plan, the Minister may
30 make a written request to the Council or any other person to
31 provide the Minister with any further information the Minister
32 requires to assist in making a decision under section 165(1)(b).
page 127
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 165
1 165. Decision of Minister
2 (1) If the ACH Council makes a recommendation to the Minister
3 under section 162(1)(b) in respect of an application for the
4 authorisation of an ACH management plan, the Minister
5 must --
6 (a) in accordance with subsection (3), consider the
7 application, the recommendation made by the Council
8 and any further information provided in response to a
9 request under section 164; and
10 (b) make a decision to --
11 (i) authorise the plan included with the
12 recommendation or authorise another plan; or
13 (ii) refuse to authorise a plan for the activity to
14 which the application relates.
15 (2) An ACH management plan that is authorised under
16 subsection (1)(b)(i) --
17 (a) may be in respect of all, or a part, of the area to which
18 the application relates; and
19 (b) may be in respect of all, or some, of the activities to
20 which the application relates; and
21 (c) must specify the period for which the authorisation is to
22 have effect.
23 (3) The decision of the Minister under subsection (1)(b) must be
24 made on the grounds of --
25 (a) whether or not the Minister is satisfied as to the matters
26 set out in section 163(1); and
27 (b) what is in the interests of the State.
28 (4) The Minister must ensure that written notice of the decision is
29 given within 14 days after the decision is made under
30 subsection (1)(b) to --
31 (a) the applicant for authorisation of an ACH management
32 plan; and
page 128
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 166
1 (b) each of the persons to be consulted about the activity to
2 which the application relates.
3 (5) The notice must contain the following --
4 (a) a description of the decision;
5 (b) short particulars of the reasons for the decision.
6 166. Duration of ACH management plan authorisation
7 The authorisation of an ACH management plan by the Minister
8 under section 165(1)(b)(i) --
9 (a) takes effect on --
10 (i) the day that the plan is authorised; or
11 (ii) a later day, if any, specified in the authorisation;
12 and
13 (b) is of effect until whichever of the following occurs
14 first --
15 (i) the authorisation of the plan is cancelled under
16 section 168(1)(b);
17 (ii) the period for which the authorisation of the plan
18 is to have effect expires;
19 (iii) the activities to which the plan relates are
20 completed.
21 167. Conditions
22 (1) It is a condition of an authorisation of an ACH management
23 plan that --
24 (a) a party to the plan must notify the ACH Council if the
25 party becomes aware, while the authorisation of the plan
26 is of effect, of any new information about Aboriginal
27 cultural heritage in the area to which the plan relates;
28 and
29 (b) the proponent must comply with the reporting
30 requirements, if any, specified in the plan; and
page 129
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 167
1 (c) a Part 7 order given in relation to an activity to which
2 the plan relates must be complied with.
3 (2) The authorisation of an ACH management plan may be made
4 subject to any other conditions that the Minister considers
5 appropriate to ensure that the activity to which the plan relates is
6 managed to avoid, or minimise, the risk of harm being caused to
7 Aboriginal cultural heritage by the activity in the area to which
8 the plan relates.
9 (3) If the Minister becomes aware of new information about
10 Aboriginal cultural heritage in the area to which an ACH
11 management plan authorised under section 165(1)(b)(i) relates
12 (due to being notified by a party to the plan or otherwise), the
13 Minister may, by written notice given to the parties to the plan,
14 impose or amend a condition on the authorisation of the plan
15 that the Minister considers appropriate to ensure that the activity
16 to which the plan relates is managed to avoid, or minimise, the
17 risk of harm being caused to Aboriginal cultural heritage by the
18 activity in the area to which the plan relates.
19 (4) A notice given under subsection (3) takes effect on the day
20 specified in the notice.
21 (5) The day specified in a notice given under subsection (3) cannot
22 be before the parties to the ACH management plan have a
23 reasonable opportunity to --
24 (a) make submissions to the Minister in relation to the
25 condition or amended condition; and
26 (b) take any action necessary to comply with the condition
27 or amended condition.
28 (6) The Minister may, at any time, by written notice given to the
29 parties to an ACH management plan, revoke a condition, other
30 than a condition referred to in subsection (1), that is imposed on
31 the authorisation of the plan.
page 130
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 168
1 (7) The Minister may exercise a power under subsection (6) --
2 (a) on the Minister's own initiative; or
3 (b) on receipt of an application by a party to the ACH
4 management plan.
5 168. Suspension or cancellation of authorisation of
6 ACH management plan
7 (1) The Minister may, by written notice given to the parties to an
8 ACH management plan authorised under section 165(1)(b)(i),
9 take either of the following actions --
10 (a) suspend the authorisation of the plan for a specified
11 period;
12 (b) cancel the authorisation of the plan.
13 (2) A notice under subsection (1) may be given only if --
14 (a) the Minister is no longer satisfied as to the matters set
15 out in section 163(1); or
16 (b) the proponent carries out an activity in the area to which
17 the ACH management plan relates that --
18 (i) may harm Aboriginal cultural heritage; and
19 (ii) is not in accordance with the plan;
20 or
21 (c) the proponent contravenes a condition to which the
22 authorisation is subject.
23 (3) A notice given under subsection (1) --
24 (a) must set out the grounds on which the action is taken;
25 and
26 (b) takes effect on the day specified in the notice.
page 131
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 169
1 (4) Before taking action under subsection (1), the Minister must
2 give the parties to the ACH management plan --
3 (a) written notice of the action that the Minister proposes to
4 take and the grounds on which the Minister proposes to
5 take that action; and
6 (b) a reasonable opportunity to be heard on the matter.
7 (5) If the authorisation of an ACH management plan is suspended,
8 it is of no effect during the period of the suspension.
9 Subdivision 4 -- Other provisions about ACH management plans
10 169. Approval of amended ACH management plan
11 (1) Unless section 170 applies, the ACH Council may, on the
12 application of a party to an approved or authorised
13 ACH management plan, approve, or refuse to approve, an
14 amendment to the plan agreed to by the parties to the plan.
15 (2) Subdivision 2 applies in relation to the approval of an
16 amendment to an approved or authorised ACH management
17 plan as if the amendment were a new ACH management plan
18 except that --
19 (a) the application for the approval of the amendment to the
20 plan does not need to contain the matters referred to in
21 section 147(2)(e) or (f); and
22 (b) the ACH Council does not need to be satisfied as to the
23 matter set out in section 151(d) in relation to the
24 amendment to the plan.
25 (3) The ACH Council must, at the written direction of the Minister
26 under section 81(3)(b), approve an amendment to an approved
27 or authorised ACH management plan to exclude from the area
28 to which the plan relates any area that is part of the area to be
29 declared as a protected area under Part 4 Division 5.
30 Note for this section:
31 If the ACH Council makes a determination under section 176(1)(b)(i)
32 that Aboriginal cultural heritage is of State significance for the
page 132
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 170
1 purposes of this Act, section 177(1)(c) provides that an application for
2 the approval of an amendment to an approved or authorised ACH
3 management plan must be considered as if it were an application
4 under section 170 for the authorisation of the amendment to the plan.
5 170. Authorisation of amended ACH management plan
6 (1) This section applies if --
7 (a) a party to an approved or authorised ACH management
8 plan wants to amend the plan; and
9 (b) either --
10 (i) the parties do not agree on amendments to the
11 plan; or
12 (ii) there is not an Aboriginal party to the plan; or
13 (iii) Aboriginal cultural heritage located in the area to
14 which the plan relates has been determined under
15 section 176(1)(b)(i) to be of State significance
16 for the purposes of this Act.
17 (2) If this section applies, a party to the approved or authorised
18 ACH management plan may apply under section 157(1) for an
19 amendment to the plan to be authorised by the Minister as if the
20 amendment were a new ACH management plan.
21 (3) If there is an Aboriginal party to an approved or authorised
22 ACH management plan to which an amendment is sought,
23 sections 142 and 143 and Subdivision 3 apply in relation to the
24 authorisation of the amendment to the plan as if the amendment
25 were a new ACH management plan except that --
26 (a) the application for the authorisation of the amendment
27 does not need to contain the matters referred to in
28 section 157(2)(d) or (e); and
29 (b) the ACH Council and the Minister do not need to be
30 satisfied as to the matter set out in section 163(1)(c).
31 (4) If there is not an Aboriginal party to an approved or authorised
32 ACH management plan to which an amendment is sought,
33 Subdivision 3 applies in relation to the authorisation of the
page 133
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 171
1 amendment to the plan as if the amendment were a new
2 ACH management plan except that --
3 (a) the application for the authorisation of the amendment
4 does not need to contain the matters referred to in
5 section 157(2)(d),(e) or (f); and
6 (b) the ACH Council and the Minister do not need to be
7 satisfied as to the matter set out in section 163(1)(c).
8 171. Change to identity of parties to ACH management plan
9 (1) If a person identified under section 137(2)(a)(ii) as an
10 Aboriginal party to an approved or authorised ACH
11 management plan is no longer an interested Aboriginal party for
12 the plan --
13 (a) the person is no longer an Aboriginal party to the plan;
14 and
15 (b) the person must, within the prescribed period, give
16 written notice that they are no longer an interested
17 Aboriginal party for the plan to the ACH Council; and
18 (c) the ACH Council may --
19 (i) nominate an interested Aboriginal party for the
20 plan to be an Aboriginal party to the plan; or
21 (ii) take measures to ensure that any obligations
22 undertaken by the Aboriginal party under the
23 plan are discharged.
24 Example for this subsection:
25 Situations in which an Aboriginal party to a plan is no longer an
26 interested Aboriginal party may include --
27 (a) the designation of a local ACH service being cancelled or
28 suspended under section 43; or
29 (b) a CATSI Act corporation or a Corporations Act corporation
30 being deregistered under the relevant Commonwealth Act.
31 (2) A nomination under subsection (1)(c)(i) is made by written
32 notice given by the ACH Council to the person, or persons,
33 nominated.
page 134
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 172
1 (3) A person nominated under subsection (1)(c)(i) becomes an
2 Aboriginal party to the approved or authorised
3 ACH management plan on accepting the nomination.
4 (4) If the person identified under section 137(2)(a)(i) as the
5 proponent (the former proponent) in an approved or authorised
6 ACH management plan is not the current proponent for the
7 activity to which the plan relates, the former proponent and the
8 current proponent must, within the prescribed period, give
9 written notice of the change in the identity of the proponent
10 to --
11 (a) each Aboriginal party to the plan; and
12 (b) the ACH Council.
13 Penalty for this subsection: a fine of $10 000.
14 (5) The current proponent becomes the person to be identified
15 under section 137(2)(a)(i) as the proponent in an approved or
16 authorised ACH management plan on the receipt by the
17 ACH Council of notice under subsection (4).
18 172. Approved or authorised ACH management plan continues
19 to have effect despite change to identity of party
20 An approved or authorised ACH management plan continues to
21 have effect in accordance with its terms in relation to the
22 activity to which the plan relates despite --
23 (a) a person identified under section 137(2)(a)(ii) as an
24 Aboriginal party to the plan no longer being an
25 Aboriginal party to the plan under section 171(1)(a); or
26 (b) any amendment made to the plan to change the identity
27 of a party to the plan that is in accordance with --
28 (i) a nomination accepted under section 171(3); or
29 (ii) a notice received under section 171(5).
page 135
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 173
1 173. Contravention of conditions on approved or authorised
2 ACH management plan
3 A party to an approved or authorised ACH management plan
4 must not contravene a condition to which the approval or
5 authorisation of the plan is subject.
6 Penalty: a fine of $100 000.
7 Subdivision 5 -- Aboriginal cultural heritage of State significance
8 174. State significance guidelines must be considered
9 In determining under this Subdivision whether Aboriginal
10 cultural heritage is of State significance for the purposes of this
11 Act, the factors set out in the State significance guidelines must
12 be considered.
13 175. Notice must be given if ACH Council forms view that
14 Aboriginal cultural heritage may be of State significance
15 (1) In this section --
16 application means --
17 (a) an application under section 147(1) for the approval of
18 an ACH management plan; or
19 (b) an application under section 157(1) for the authorisation
20 of an ACH management plan; or
21 (c) an application under section 169 for the approval of an
22 amendment to an approved or authorised ACH
23 management plan; or
24 (d) an application under section 170 for the authorisation of
25 an amendment to an approved or authorised ACH
26 management plan.
27 (2) If, in considering an application, the ACH Council forms the
28 view that Aboriginal cultural heritage located in the area to
29 which the application or the approved or authorised
30 ACH management plan, as is relevant, relates may be of State
page 136
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 175
1 significance for the purposes of this Act, the Council must give
2 public notice that the Council is considering making a
3 determination that the Aboriginal cultural heritage is of State
4 significance for the purposes of this Act.
5 (3) The notice must include the following --
6 (a) details of the Aboriginal cultural heritage to which the
7 notice relates;
8 (b) details of the area in which the Aboriginal cultural
9 heritage is located (the notice area);
10 (c) provision of an opportunity for a person to submit to the
11 ACH Council, within the prescribed period, a statement
12 about the person's views on whether the Aboriginal
13 cultural heritage should be recognised as being of State
14 significance for the purposes of this Act.
15 (4) The ACH Council must notify the following persons that public
16 notice has been given under subsection (2) --
17 (a) each local ACH service for the notice area or a part of
18 the notice area;
19 (b) each native title party for the notice area or a part of the
20 notice area;
21 (c) each knowledge holder for the notice area or a part of
22 the notice area;
23 (d) each landholder of land within the notice area;
24 (e) each public authority that the Council considers has an
25 interest in the notice area or a part of the notice area;
26 (f) any other person the Council considers has an interest in
27 the notice area or a part of the notice area.
28 (5) In subsection (4)(c) --
29 each knowledge holder, in relation to a notice area or a part of a
30 notice area, means each person who is identified as a knowledge
31 holder for the notice area or a part of the notice area, after
page 137
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 176
1 reasonable steps have been taken to do so in accordance with
2 the knowledge holder guidelines.
3 176. Determination about Aboriginal cultural heritage of State
4 significance
5 (1) The ACH Council must, within the prescribed period beginning
6 at the end of the period for submissions included in a public
7 notice given under section 175(3)(c) --
8 (a) consider any submissions in relation to the Aboriginal
9 cultural heritage made to the Council in response to the
10 notice; and
11 (b) make a determination that the Aboriginal cultural
12 heritage --
13 (i) is of State significance for the purposes of this
14 Act; or
15 (ii) is not of State significance for the purposes of
16 this Act.
17 (2) The ACH Council may make a determination under
18 subsection (1)(b)(i) only if the Council is satisfied, after taking
19 into consideration the factors set out in the State significance
20 guidelines, that the Aboriginal cultural heritage is of State
21 significance for the purposes of this Act.
22 (3) If the ACH Council does not make a determination under
23 subsection (1)(b) within the prescribed period, the person that
24 made the application referred to in section 175(2) in relation to
25 the area where the Aboriginal cultural heritage is located may
26 make a written request to the Minister to direct the Council to
27 do anything that the Minister considers necessary to expedite
28 the matter.
29 (4) A direction given by the Minister in response to a request under
30 subsection (3) must --
31 (a) be in writing; and
page 138
Aboriginal Cultural Heritage Bill 2021
Managing activities that may harm Aboriginal cultural heritage Part 6
ACH management plans Division 6
s. 177
1 (b) specify the period within which the direction must be
2 complied with.
3 (5) If the ACH Council does not comply with a direction given by
4 the Minister, the Minister may stand in the place of the Council
5 and make a determination under subsection (1)(b) in accordance
6 with this Subdivision.
7 177. Continuation of applications
8 (1) If the ACH Council makes a determination under
9 section 176(1)(b)(i) that Aboriginal cultural heritage is of State
10 significance for the purposes of this Act --
11 (a) an application for the approval of an ACH management
12 plan that relates to an area in which the Aboriginal
13 cultural heritage is located must be considered as if it
14 were an application under section 157(1) for the
15 authorisation of the plan; and
16 (b) an application for the authorisation of an
17 ACH management plan that relates to an area in which
18 the Aboriginal cultural heritage is located must continue
19 to be considered as an application under section 157(1)
20 for the authorisation of the plan; and
21 (c) an application for the approval of an amendment to an
22 approved or authorised ACH management plan that
23 relates to an area in which the Aboriginal cultural
24 heritage is located must be considered as if it were an
25 application under section 170 for the authorisation of the
26 amendment to the plan; and
27 (d) an application for the authorisation of an amendment to
28 an approved or authorised ACH management plan that
29 relates to an area in which the Aboriginal cultural
30 heritage is located must continue to be considered as an
31 application under section 170 for the authorisation of the
32 amendment to the plan.
page 139
Aboriginal Cultural Heritage Bill 2021
Part 6 Managing activities that may harm Aboriginal cultural heritage
Division 6 ACH management plans
s. 177
1 (2) If the ACH Council makes a determination under
2 section 176(1)(b)(ii) that Aboriginal cultural heritage is not of
3 State significance for the purposes of this Act --
4 (a) an application for the approval of an ACH management
5 plan that relates to an area in which the Aboriginal
6 cultural heritage is located must continue to be
7 considered as an application under section 147(1) for the
8 approval of the plan; and
9 (b) an application for the authorisation of an
10 ACH management plan that relates to an area in which
11 the Aboriginal cultural heritage is located must continue
12 to be considered as an application under section 157(1)
13 for the authorisation of the plan; and
14 (c) an application for the approval of an amendment to an
15 approved or authorised ACH management plan that
16 relates to an area in which the Aboriginal cultural
17 heritage is located must continue to be considered as an
18 application under section 169 for the approval of the
19 amendment; and
20 (d) an application for the authorisation of an amendment to
21 an approved or authorised ACH management plan that
22 relates to an area in which the Aboriginal cultural
23 heritage is located must continue to be considered as an
24 application under section 170 for the authorisation of the
25 amendment to the plan.
page 140
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Preliminary Division 1
s. 178
1 Part 7 -- Stop activity orders, prohibition orders and
2 remediation orders
3 Division 1 -- Preliminary
4 178. Terms used
5 In this Part --
6 new information about Aboriginal cultural heritage --
7 (a) in relation to an area to which an ACH permit relates,
8 means information not identified in the application for
9 the grant of the permit under section 115(2)(c) about --
10 (i) Aboriginal cultural heritage located in the area;
11 or
12 (ii) the characteristics of Aboriginal cultural heritage
13 located in the area;
14 and
15 (b) in relation to an area to which an approved or authorised
16 ACH management plan relates, means information not
17 identified in the plan under section 137(2)(b) (including
18 in the ACH impact statement included in the plan under
19 section 137(2)(c)) about --
20 (i) Aboriginal cultural heritage located in the area;
21 or
22 (ii) the characteristics of Aboriginal cultural heritage
23 located in the area;
24 remediate, in relation to Aboriginal cultural heritage, means to
25 carry out work to --
26 (a) control, abate or mitigate harm to the Aboriginal cultural
27 heritage; or
28 (b) maintain, remediate or restore Aboriginal cultural
29 heritage that has been harmed.
page 141
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 2 Stop activity orders
s. 179
1 179. Application of Part
2 This Part applies to the following Aboriginal cultural heritage
3 only --
4 (a) an Aboriginal place;
5 (b) an Aboriginal object;
6 (c) Aboriginal ancestral remains;
7 (d) Aboriginal cultural heritage located in a protected area.
8 Division 2 -- Stop activity orders
9 180. Stop activity order may be given by Minister in certain
10 circumstances
11 (1) The Minister may, in the circumstances set out in
12 subsection (3), give a stop activity order to a person if the
13 Minister is of the opinion that Aboriginal cultural heritage is
14 being harmed or there is an imminent risk of harm being caused
15 to Aboriginal cultural heritage.
16 (2) For the purposes of subsection (1), Aboriginal cultural heritage
17 is being harmed or there is an imminent risk of harm being
18 caused to Aboriginal cultural heritage if an activity --
19 (a) is being carried out and the activity is harming the
20 Aboriginal cultural heritage; or
21 (b) is being carried out and the activity involves an
22 imminent risk of harm being caused to the Aboriginal
23 cultural heritage; or
24 (c) will be carried out imminently and the activity will
25 involve a risk of harm being caused to the Aboriginal
26 cultural heritage.
page 142
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Stop activity orders Division 2
s. 180
1 (3) A stop activity order can only be given under subsection (1) --
2 (a) if the harm or imminent risk of harm is caused by --
3 (i) the carrying out of a tier 2 activity or a tier 3
4 activity that is not authorised under Part 6
5 Division 4; or
6 (ii) the carrying out of any activity in a protected
7 area;
8 or
9 (b) if --
10 (i) the harm or imminent risk of harm is caused by
11 the carrying out of an activity in accordance with
12 an ACH permit or an approved or authorised
13 ACH management plan; and
14 (ii) there is new information about Aboriginal
15 cultural heritage in the area where the activity is
16 being carried out.
17 (4) A stop activity order must be given to a person who, in the
18 opinion of the Minister, has control over the activity.
19 Note for this subsection:
20 The person given the order may be --
21 (a) the landholder or occupier of the land where the activity is
22 being, or will be, carried out; or
23 (b) the proponent for the activity; or
24 (c) another person who, in the opinion of the Minister, has control
25 over the activity.
26 (5) A stop activity order expires on the day that is 60 days after the
27 day on which the order is given to a person under this section,
28 unless it is cancelled earlier under section 203(1)(b) or extended
29 under section 182(1).
30 (6) Immediately after a stop activity order is given under
31 subsection (1), the Minister must give a copy of the order to the
32 ACH Council to enable the Council to consider under
33 section 186(1) whether Aboriginal cultural heritage the subject
page 143
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 2 Stop activity orders
s. 181
1 of the order requires continued protection under a prohibition
2 order.
3 (7) The Minister must ensure that public notice is given of the
4 giving of a stop activity order as soon as practicable after the
5 order is given.
6 181. Contents of stop activity order
7 A stop activity order must --
8 (a) state briefly --
9 (i) that the Minister is satisfied that grounds for
10 giving the order exist; and
11 (ii) the basis for that opinion;
12 and
13 (b) briefly describe the Aboriginal cultural heritage the
14 subject of the order; and
15 (c) specify directions on measures that must be taken to
16 protect Aboriginal cultural heritage the subject of the
17 order from harm, or the imminent risk of harm,
18 including the following --
19 (i) that the carrying out of a specified activity must
20 stop immediately;
21 (ii) that the carrying out of a specified activity is
22 prohibited;
23 (iii) that the carrying out of a specified activity in a
24 specified way or for a specified period is
25 prohibited;
26 and
27 (d) specify that the person given the order must ensure that
28 those directions are complied with, and describe briefly
29 the consequences of failing to do so; and
page 144
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Stop activity orders Division 2
s. 182
1 (e) describe briefly how, after the process set out in
2 sections 186 to 188 has been followed, a prohibition
3 order may be given; and
4 (f) specify the day (being 60 days after the day on which
5 the order is given) on which the order will expire, unless
6 cancelled earlier under section 203(1)(b) or extended
7 under section 182(1).
8 182. Extension of duration of stop activity order
9 (1) Before a stop activity order expires, the Minister may extend the
10 duration of the order by written notice given to the person who
11 was given the order.
12 (2) The decision of the Minister to extend the duration of a stop
13 activity order must be made on the grounds that the Minister is
14 satisfied that the ACH Council requires further time to consider
15 under section 186(1) whether Aboriginal cultural heritage the
16 subject of the order requires continued protection under a
17 prohibition order.
18 (3) The Minister must ensure that public notice is given of the
19 extension of the duration of the stop activity order as soon as
20 practicable after notice is given extending the duration of the
21 order.
22 (4) The Minister may extend the duration of a stop activity order
23 under subsection (1) --
24 (a) on only one occasion; and
25 (b) for --
26 (i) a period of 60 days beginning immediately after
27 the order would otherwise expire in accordance
28 with its terms; or
29 (ii) any shorter period specified in writing by the
30 Minister.
page 145
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 3 Prohibition orders
s. 183
1 183. Compliance with stop activity order
2 (1) A person who is given a stop activity order must comply with
3 the directions specified in the order.
4 Penalty for this subsection:
5 (a) a fine of $250 000;
6 (b) a daily penalty of a fine of $12 500 for each day or
7 part of a day during which the offence continues.
8 (2) A person who is given a stop activity order must, as soon as
9 reasonably practicable after complying with the directions
10 specified in the order, notify the ACH Council in writing of that
11 compliance.
12 Penalty for this subsection: a fine of $10 000.
13 Division 3 -- Prohibition orders
14 184. Recommendations by ACH Council about prohibition
15 orders under section 185(1) or 186(1)(b)
16 The ACH Council --
17 (a) under section 185(1), may make a recommendation that
18 the Minister give a prohibition order to a person; and
19 (b) under section 186(1)(b), must, while a stop activity
20 order is of effect, make a recommendation to the
21 Minister about whether or not a prohibition order should
22 be given.
23 185. ACH Council may make recommendation about prohibition
24 orders in certain circumstances
25 (1) The ACH Council may, in the circumstances set out in
26 subsection (3), make a recommendation that the Minister give a
page 146
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Prohibition orders Division 3
s. 185
1 prohibition order to a person if the Council is of the opinion
2 that --
3 (a) Aboriginal cultural heritage is being harmed or there is
4 an imminent risk of harm being caused to Aboriginal
5 cultural heritage; and
6 (b) special measures need to be taken to prohibit an activity
7 in order to protect the Aboriginal cultural heritage from
8 the harm, or the imminent risk of harm.
9 (2) For the purposes of subsection (1)(a), Aboriginal cultural
10 heritage is being harmed or there is an imminent risk of harm
11 being caused to Aboriginal cultural heritage if an activity --
12 (a) is being carried out and the activity is harming the
13 Aboriginal cultural heritage; or
14 (b) is being carried out and the activity involves an
15 imminent risk of harm being caused to the Aboriginal
16 cultural heritage; or
17 (c) will be carried out imminently and the activity will
18 involve a risk of harm being caused to the Aboriginal
19 cultural heritage.
20 (3) A recommendation can only be made under subsection (1) --
21 (a) if the harm or imminent risk of harm is caused by --
22 (i) the carrying out of a tier 2 activity or a tier 3
23 activity that is not authorised under Part 6
24 Division 4; or
25 (ii) the carrying out of any activity in a protected
26 area;
27 or
28 (b) if --
29 (i) the harm or imminent risk of harm is caused by
30 the carrying out of an activity in accordance with
31 an ACH permit or an approved or authorised
32 ACH management plan; and
page 147
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 3 Prohibition orders
s. 186
1 (ii) there is new information about Aboriginal
2 cultural heritage in the area where the activity is
3 being carried out.
4 (4) If the ACH Council makes a recommendation under
5 subsection (1), the Council may also make recommendations
6 about the following --
7 (a) the person to whom the order is to be given;
8 (b) any directions to be included in the order;
9 (c) the duration of the order;
10 (d) the other matters, if any, prescribed for the purposes of
11 this paragraph.
12 186. ACH Council must make recommendation about
13 prohibition order while stop activity order of effect
14 (1) The ACH Council must, while a stop activity order is of
15 effect --
16 (a) consider whether Aboriginal cultural heritage the subject
17 of the order requires continued protection under a
18 prohibition order; and
19 (b) make a recommendation that the Minister --
20 (i) give a prohibition order in relation to an activity
21 the subject of a direction specified in the stop
22 activity order; or
23 (ii) not give a prohibition order in relation to an
24 activity the subject of a direction specified in the
25 stop activity order.
26 (2) If the ACH Council makes a recommendation under
27 subsection (1)(b)(i), the Council may also make
28 recommendations about the following --
29 (a) the person to whom the order is to be given;
30 (b) any directions to be included in the order;
31 (c) the duration of the order;
page 148
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Prohibition orders Division 3
s. 187
1 (d) the other matters, if any, prescribed for the purposes of
2 this paragraph.
3 (3) Section 185(1), (2) and (3) apply in relation to the making of a
4 recommendation by the ACH Council under subsection (1)(b).
5 (4) A recommendation must be made by the ACH Council within
6 the prescribed period.
7 187. ACH Council must give notice before making
8 recommendation about prohibition order
9 (1) Before making a recommendation under section 185(1)
10 or 186(1)(b), the ACH Council must --
11 (a) give written notice in accordance with subsection (2)
12 that the Council is considering whether or not to
13 recommend that a prohibition order be given in relation
14 to --
15 (i) the activity specified in the notice; and
16 (ii) the Aboriginal cultural heritage specified in the
17 notice;
18 and
19 (b) following the period for submissions referred to in
20 subsection (2)(c), consider any submissions made to the
21 Council in response to the notice.
22 (2) The notice under subsection (1)(a) must be given to the persons
23 referred to in subsection (3) and provide --
24 (a) information relevant to the decision of the ACH Council
25 whether or not to recommend that a prohibition order be
26 given; and
27 (b) details about --
28 (i) the Aboriginal cultural heritage being harmed or
29 at imminent risk of harm, to the extent that the
30 details do not disclose culturally sensitive
31 information; and
page 149
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 3 Prohibition orders
s. 187
1 (ii) the activity to which the proposed prohibition
2 order is to relate; and
3 (iii) the proposed duration of the prohibition order;
4 and
5 (c) an opportunity to make submissions to the Council
6 within the prescribed period about whether or not the
7 Council should recommend that a prohibition order be
8 given.
9 (3) The notice under subsection (1)(a) must be given to the
10 following persons --
11 (a) any person who, in the opinion of the ACH Council, has
12 control over the activity specified in the notice;
13 (b) each local ACH service for the area or a part of the area
14 where the activity is being carried out or is likely to be
15 carried out;
16 (c) if there is not a local ACH service for the area or a part
17 of the area where the activity is being carried out or is
18 likely to be carried out --
19 (i) each native title party for the area or the part of
20 the area; and
21 (ii) each knowledge holder for the area or the part of
22 the area;
23 (d) if there is not a local ACH service, a native title party or
24 a knowledge holder for the area or a part of the area --
25 each native title representative body for the area or the
26 part of the area.
27 (4) In subsection (3)(c)(ii) --
28 each knowledge holder, in relation to an area or a part of an
29 area, means each person who is identified as a knowledge
30 holder for the area or a part of the area, after reasonable steps
31 have been taken to do so in accordance with the knowledge
32 holder guidelines.
page 150
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Prohibition orders Division 3
s. 188
1 188. Prohibition order may be given by Minister
2 (1) If the ACH Council makes a recommendation to the Minister
3 under section 185(1) or 186(1)(b), the Minister --
4 (a) must consider the recommendation of the Council; and
5 (b) may decide --
6 (i) to give a prohibition order to a person described
7 in subsection (3); or
8 (ii) not to give a prohibition order.
9 (2) The decision of the Minister under subsection (1) must be made
10 on the grounds of --
11 (a) whether or not the Minister is satisfied as to the matters
12 set out in section 185(1) and (3); and
13 (b) what is in the interests of the State.
14 (3) A prohibition order must be given to a person who, in the
15 opinion of the Minister, has control over the activity.
16 Note for this subsection:
17 The person given the order may be --
18 (a) the landholder or occupier of the land where the activity is
19 being, or will be, carried out; or
20 (b) the proponent for the activity; or
21 (c) another person who, in the opinion of the Minister, has control
22 over the activity.
23 (4) The Minister must ensure that public notice is given of the
24 giving of a prohibition order as soon as practicable after the
25 order is given.
26 (5) The Minister must ensure that notice is given of a decision
27 under subsection (1)(b)(ii) not to give a prohibition order to the
28 persons who were given notice under section 187(3) in relation
29 to consideration by the ACH Council whether or not to
30 recommend that a prohibition order be given.
page 151
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 3 Prohibition orders
s. 189
1 189. Contents of prohibition order
2 A prohibition order must --
3 (a) state briefly --
4 (i) that the Minister is satisfied that grounds exist
5 for the giving of the order; and
6 (ii) the basis for that opinion;
7 and
8 (b) briefly describe Aboriginal cultural heritage the subject
9 of the order; and
10 (c) specify directions on measures that must be taken to
11 protect Aboriginal cultural heritage the subject of the
12 order from harm, or the risk of harm, including any of
13 the following --
14 (i) that the carrying out of a specified activity must
15 stop immediately;
16 (ii) that the carrying out of a specified activity is
17 prohibited;
18 (iii) that the carrying out of a specified activity in a
19 specified way or for a specified period is
20 prohibited;
21 and
22 (d) specify that the person given the order must ensure that
23 those directions are complied with, and describe briefly
24 the consequences of failing to do so; and
25 (e) specify --
26 (i) that the order is of unlimited duration, unless
27 cancelled; or
28 (ii) the day on which the order will expire, unless
29 cancelled earlier under section 203(1)(a) or
30 extended under section 191(1).
page 152
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Prohibition orders Division 3
s. 190
1 190. Compliance with prohibition order
2 (1) A person who is given a prohibition order must comply with the
3 directions specified in the order.
4 Penalty for this subsection:
5 (a) a fine of $250 000;
6 (b) a daily penalty of a fine of $12 500 for each day or
7 part of a day during which the offence continues.
8 (2) A person who is given a prohibition order must, as soon as
9 reasonably practicable after complying with the directions
10 specified in the order, notify the ACH Council in writing of that
11 compliance.
12 Penalty for this subsection: a fine of $10 000.
13 191. Extension of duration of prohibition order
14 (1) Before a prohibition order expires, the Minister may extend the
15 duration of the order by written notice given to the person who
16 was given the order.
17 (2) The decision of the Minister under subsection (1) must be made
18 on the grounds that --
19 (a) the Minister is satisfied that the grounds on which the
20 prohibition order was given still exist; and
21 (b) it is in the interests of the State.
22 (3) Before making a decision under subsection (1), the Minister
23 must --
24 (a) give written notice, in accordance with section 192(1),
25 of the proposal to extend the duration of the prohibition
26 order; and
27 (b) at the end of the period for submissions referred to in
28 section 192(1)(d), consider any submissions made to the
29 Minister in response to the notice.
page 153
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 4 Remediation orders
s. 192
1 (4) The Minister must ensure that public notice is given of the
2 extension of the duration of the prohibition order as soon as
3 practicable after the duration of the order is extended.
4 192. Notice by Minister before extension of duration of
5 prohibition order
6 (1) The notice under section 191(3)(a) must be given to the persons
7 referred to in subsection (2) and provide --
8 (a) details of the proposal to extend the duration of the
9 prohibition order, including the proposed extension
10 period; and
11 (b) details about the contents of the prohibition order,
12 excluding any details that disclose culturally sensitive
13 information; and
14 (c) details about the directions specified in the prohibition
15 order; and
16 (d) an opportunity to make submissions to the Minister
17 within the prescribed period about whether the duration
18 of the prohibition order should be extended as proposed.
19 (2) The notice must be given to the following persons --
20 (a) the person who was given the prohibition order;
21 (b) any other person who, in the opinion of the Minister, has
22 control over an activity the subject of a direction
23 specified in the prohibition order;
24 (c) the persons referred to in section 187(3)(b) to (d).
25 Division 4 -- Remediation orders
26 193. ACH Council may recommend remediation order
27 The ACH Council may recommend that the Minister give a
28 remediation order to a person described in section 194(2) if the
29 Council is of the opinion that Aboriginal cultural heritage has
30 been harmed in contravention of this Act.
page 154
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Remediation orders Division 4
s. 194
1 194. Remediation order may be given by Minister
2 (1) The Minister may give a remediation order to a person
3 described in subsection (2) if --
4 (a) the ACH Council has made a recommendation to the
5 Minister under section 193; and
6 (b) the Minister is satisfied that Aboriginal cultural heritage
7 has been harmed in contravention of this Act.
8 (2) A remediation order must be given to a person who, in the
9 opinion of the Minister --
10 (a) had control over the activity that harmed the Aboriginal
11 cultural heritage; or
12 (b) is a landholder or occupier of the land where the activity
13 that harmed the Aboriginal cultural heritage was carried
14 out.
15 (3) The Minister must ensure that public notice is given of the
16 giving of a remediation order as soon as practicable after the
17 order is given.
18 195. Contents of remediation order
19 A remediation order must --
20 (a) state briefly --
21 (i) that the Minister is satisfied that grounds for
22 giving the order exist; and
23 (ii) the basis for that opinion;
24 and
25 (b) briefly describe Aboriginal cultural heritage the subject
26 of the order; and
27 (c) specify directions on measures that must be taken to
28 remediate the harm to the Aboriginal cultural heritage
29 and any period within which a measure must be carried
30 out; and
page 155
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 4 Remediation orders
s. 196
1 (d) specify that the person given the order must ensure that
2 those directions are complied with and describe briefly
3 the consequences of failing to do so.
4 196. Compliance with remediation order
5 (1) A person who is given a remediation order must comply with
6 the directions specified in the order.
7 Penalty for this subsection:
8 (a) a fine of $250 000;
9 (b) a daily penalty of a fine of $12 500 for each day or
10 part of a day during which the offence continues.
11 (2) A person who is given a remediation order must, as soon as
12 reasonably practicable after complying with the directions
13 specified in the order, notify the ACH Council in writing of that
14 compliance.
15 Penalty for this subsection: a fine of $10 000.
16 197. Other persons may carry out remediation if order
17 contravened
18 (1) If a person who is given a remediation order contravenes the
19 order, the Minister may authorise any other person to carry out
20 some or all of the directions specified in the order.
21 (2) The Minister may, in a court of competent jurisdiction, recover
22 the cost of the remediation referred to in subsection (1) as a debt
23 due from the person to whom the remediation order was given.
24 198. Entry to carry out remediation
25 (1) A person required or authorised to carry out remediation under a
26 remediation order may enter land if it is necessary to do so for
27 the purpose of carrying out the remediation.
28 (2) However, nothing in this Division authorises a person to enter
29 any part of premises used for residential purposes except with
30 the consent of the occupier of the premises.
page 156
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Other provisions about orders under this Part Division 5
s. 199
1 199. Recovery by person given remediation order
2 A person who complied with a remediation order that the person
3 was given, but who is not the person who had control over the
4 activity that harmed the Aboriginal cultural heritage the subject
5 of the remediation order, may, in a court of competent
6 jurisdiction, recover the cost of complying with the order as a
7 debt due from the person who had control over the activity that
8 harmed the Aboriginal cultural heritage.
9 Division 5 -- Other provisions about orders under this Part
10 200. General matters about orders under this Part
11 An order under this Part, and the amendment, extension or
12 cancellation of an order under this Part --
13 (a) must be given in writing; and
14 (b) may be given whether or not --
15 (i) any person has been proceeded against or
16 convicted of an offence under this Act; or
17 (ii) the person to whom the order is given has been
18 notified about the proposal to make the order.
19 201. Directions in orders under this Part
20 A direction specified in an order under this Part may do any of
21 the following --
22 (a) state that it is subject to any conditions specified in the
23 order;
24 (b) state that it is subject to the discretion of any person
25 specified in the order;
26 (c) refer to any prescribed requirements or standards or to a
27 code of practice;
28 (d) offer the person to whom it is given a choice of ways in
29 which to comply with the order.
page 157
Aboriginal Cultural Heritage Bill 2021
Part 7 Stop activity orders, prohibition orders and remediation orders
Division 5 Other provisions about orders under this Part
s. 202
1 202. Duration of orders under this Part
2 An order under this Part --
3 (a) takes effect when a person is given the order; and
4 (b) is of effect until whichever of the following occurs
5 first --
6 (i) the order is cancelled under section 203(1);
7 (ii) the order expires in accordance with its terms or
8 the terms of a notice given under section 182(1)
9 or 191(1).
10 203. Amendment or cancellation of certain orders under this
11 Part
12 (1) The Minister may, by written notice given to a person given an
13 order under this Part --
14 (a) if the order is a prohibition order -- amend or cancel the
15 order; or
16 (b) if the order is a stop activity order or a remediation
17 order -- cancel the order.
18 (2) Before making a decision under subsection (1)(a) to amend or
19 cancel a prohibition order, the Minister must --
20 (a) give written notice in accordance with section 204 of the
21 proposal to amend or cancel the prohibition order; and
22 (b) at the end of the period for submissions referred to in
23 section 204(c), consider any submissions made to the
24 Minister in response to the notice.
25 (3) The Minister must give written notice of a decision under
26 subsection (1) to amend or cancel a prohibition order to the
27 persons referred to in section 187(3)(b) to (d) as soon as
28 practicable after the decision is made.
page 158
Aboriginal Cultural Heritage Bill 2021
Stop activity orders, prohibition orders and remediation orders Part 7
Other provisions about orders under this Part Division 5
s. 204
1 204. Notification by Minister before amending or cancelling
2 prohibition order
3 The notice under section 203(2)(a) must be given to the persons
4 referred to in section 192(2) and provide --
5 (a) details of the proposal to amend or cancel the
6 prohibition order; and
7 (b) details about the contents of the prohibition order,
8 excluding any details that disclose culturally sensitive
9 information; and
10 (c) an opportunity to make submissions to the Minister
11 within the prescribed period about whether the
12 prohibition order should be amended or cancelled as
13 proposed.
14 205. Display of order under this Part
15 (1) A person who is given an order under this Part must, as soon as
16 practicable, display a copy of the order in a prominent place at
17 or near the area where any activity the subject of a direction
18 specified in the order is, or was, being carried out.
19 Penalty for this subsection:
20 (a) a fine of $10 000;
21 (b) a daily penalty of a fine of $500 for each day or part
22 of a day during which the offence continues.
23 (2) A person must not intentionally remove, destroy, damage or
24 deface an order displayed under subsection (1) while the order
25 is of effect.
26 Penalty for this subsection: a fine of $10 000.
page 159
Aboriginal Cultural Heritage Bill 2021
Part 8 Aboriginal cultural heritage protection agreements
s. 206
1 Part 8 -- Aboriginal cultural heritage protection
2 agreements
3 206. ACH protection agreement
4 (1) An Aboriginal cultural heritage protection agreement (an
5 ACH protection agreement) is an agreement that --
6 (a) deals with 1 or more of the matters described in
7 subsection (3); and
8 (b) does not deal with any activity for which an ACH permit
9 or an ACH management plan is required under this Act;
10 and
11 (c) is not a related agreement.
12 (2) The parties to an ACH protection agreement must include at
13 least 1 Aboriginal person, group or community.
14 (3) Without limiting the matters that may be dealt with by an
15 ACH protection agreement, an agreement may deal with any of
16 the following --
17 (a) the recognition, protection, conservation, preservation or
18 management of Aboriginal cultural heritage in relation
19 to an area, or areas;
20 (b) the protection, maintenance or use of an Aboriginal
21 place;
22 (c) the protection, maintenance or use of a cultural
23 landscape, or a part of a cultural landscape;
24 (d) the protection, maintenance or use of Aboriginal objects;
25 (e) rights of access to, or to use, Aboriginal places or
26 Aboriginal objects by Aboriginal people;
27 (f) the restoration and preservation of Aboriginal places,
28 cultural landscapes and Aboriginal objects;
29 (g) any other matter prescribed for the purposes of this
30 paragraph.
page 160
Aboriginal Cultural Heritage Bill 2021
Aboriginal cultural heritage protection agreements Part 8
s. 207
1 207. Endorsement of ACH protection agreement
2 (1) A party to an ACH protection agreement may submit the
3 agreement to the ACH Council for endorsement.
4 (2) An ACH protection agreement submitted to the ACH Council
5 for endorsement must --
6 (a) be made in the approved form; and
7 (b) be accompanied by the other documents and
8 information, if any, prescribed for the purposes of this
9 paragraph.
10 208. Further information in support of submission
11 (1) The ACH Council may make a written request to a person who
12 has submitted an ACH protection agreement for endorsement to
13 do any of the following --
14 (a) provide the Council with any further information
15 relevant to the submission that the Council requires to
16 assess the submission;
17 (b) verify any further information by statutory declaration.
18 (2) A request under subsection (1) must specify the prescribed
19 period within which the request must be complied with.
20 209. ACH Council may refuse to consider some submissions
21 The ACH Council may refuse to consider, or consider further, a
22 submission for the endorsement of an ACH protection
23 agreement if --
24 (a) the submission is not made in accordance with this Act;
25 or
26 (b) the person who submitted the agreement for
27 endorsement has not complied with a request under
28 section 208.
page 161
Aboriginal Cultural Heritage Bill 2021
Part 8 Aboriginal cultural heritage protection agreements
s. 210
1 210. Decision of ACH Council
2 (1) The ACH Council must assess each submission for the
3 endorsement of an ACH protection agreement under
4 section 207(1) and make a decision to --
5 (a) endorse the agreement; or
6 (b) refuse to endorse the agreement.
7 (2) A decision on a submission must be made by the ACH Council
8 within the prescribed period.
9 (3) The prescribed period for making a decision on a submission
10 does not include any period commencing on the day on which a
11 request is made under section 208(1) in respect of the
12 submission and ending on the day on which the first of the
13 following occurs --
14 (a) the request is complied with;
15 (b) the prescribed period for complying with the request
16 expires.
page 162
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Directory Part 9
ACH Directory Division 1
s. 211
1 Part 9 -- Aboriginal Cultural Heritage Directory
2 Division 1 -- ACH Directory
3 211. ACH Directory
4 (1) The ACH Council must establish and maintain a directory
5 called the Aboriginal Cultural Heritage Directory.
6 (2) The ACH Directory must be established and maintained in the
7 manner and form determined by the ACH Council as
8 appropriate for achieving the purposes set out in section 212.
9 212. Purposes of ACH Directory
10 The purposes of establishing and maintaining the
11 ACH Directory are as follows --
12 (a) to assemble, organise and maintain the information and
13 documents about Aboriginal cultural heritage described
14 in section 213;
15 (b) for information and documents in the Directory to be
16 accessible, in accordance with Division 2, as a research
17 and planning tool to assist --
18 (i) Aboriginal people, groups and communities, and
19 other people, in their consideration of Aboriginal
20 cultural heritage; and
21 (ii) persons proposing to carry out activities that may
22 harm Aboriginal cultural heritage; and
23 (iii) in the administration of this Act.
24 213. Information and documents on ACH Directory
25 (1) The ACH Directory must contain the prescribed information
26 about the following --
27 (a) a protected area;
28 (b) a local ACH service for an area;
29 (c) a native title party for an area;
page 163
Aboriginal Cultural Heritage Bill 2021
Part 9 Aboriginal Cultural Heritage Directory
Division 1 ACH Directory
s. 213
1 (d) the knowledge holders for the following --
2 (i) a particular area;
3 (ii) particular Aboriginal cultural heritage;
4 (e) an ACH protection agreement endorsed under Part 8;
5 (f) an ACH permit;
6 (g) an ACH management plan approved under
7 section 150(1)(b)(i);
8 (h) an ACH management plan authorised under
9 section 165(1)(b)(i);
10 (i) a determination under section 176(1)(b)(i) that
11 Aboriginal cultural heritage is of State significance for
12 the purposes of this Act;
13 (j) a Part 7 order.
14 (2) The ACH Directory must also contain --
15 (a) information about Aboriginal cultural heritage of the
16 State, including, where relevant --
17 (i) a description of the characteristics of the
18 Aboriginal cultural heritage; and
19 (ii) a description of the location of the Aboriginal
20 cultural heritage; and
21 (iii) in relation to an Aboriginal object, a description
22 of where it is reasonably believed to have
23 originated from; and
24 (iv) particularly in relation to intangible Aboriginal
25 cultural heritage -- recordings (including
26 photographs, films, audio, video, digital and
27 other recordings);
28 and
page 164
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Directory Part 9
ACH Directory Division 1
s. 214
1 (b) any other information and documents, including
2 historical information and documents, relevant to
3 Aboriginal cultural heritage that --
4 (i) are prescribed for the purposes of this paragraph;
5 or
6 (ii) the ACH Council considers appropriate to
7 include in the Directory.
8 (3) In subsection (2)(a)(iv) --
9 intangible Aboriginal cultural heritage means the intangible
10 elements of Aboriginal cultural heritage, including knowledge,
11 or oral expression, of Aboriginal tradition.
12 (4) Information and documents may be placed on the
13 ACH Directory, in accordance with the regulations --
14 (a) on the initiative of the ACH Council; or
15 (b) at the request of a local ACH service or another person.
16 214. Accuracy of ACH Directory
17 (1) The ACH Council must ensure that the ACH Directory is as
18 accurate and up-to-date as practicable, and may, as it considers
19 necessary, do any of the following --
20 (a) modify the Directory;
21 (b) add to the Directory;
22 (c) correct the Directory.
23 (2) However, information or a document can only be removed from
24 the ACH Directory in accordance with section 215.
25 (3) The placing of information or a document on the ACH
26 Directory, or its removal from the Directory, is not conclusive
27 as to whether the information is up-to-date, comprehensive or
28 otherwise accurate.
page 165
Aboriginal Cultural Heritage Bill 2021
Part 9 Aboriginal Cultural Heritage Directory
Division 2 Access to ACH Directory
s. 215
1 215. Removing information and documents from ACH Directory
2 (1) The ACH Council may remove information or a document from
3 the ACH Directory if the Council is satisfied that the
4 information or document has been placed on the Directory in
5 error or is factually incorrect.
6 (2) Before removing information or a document about Aboriginal
7 cultural heritage from the ACH Directory, other than under
8 subsection (1), the ACH Council must, to the extent that it is
9 reasonably practicable to do so, consult --
10 (a) a knowledge holder for the Aboriginal cultural heritage
11 to which the information or document relates; or
12 (b) if it is not possible to identify or consult with a
13 knowledge holder for the Aboriginal cultural heritage --
14 (i) each local ACH service for the area or a part of
15 the area to which the Aboriginal cultural heritage
16 relates; or
17 (ii) if there is not a local ACH service for the area or
18 a part of the area to which the Aboriginal cultural
19 heritage relates -- each native title party for the
20 area or the part of the area; or
21 (iii) if there is not a local ACH service or native title
22 party for the area or a part of the area to which
23 the Aboriginal cultural heritage relates -- each
24 native title representative body for the area or the
25 part of the area.
26 Division 2 -- Access to ACH Directory
27 216. Access to ACH Directory
28 (1) The ACH Council must ensure that the information and
29 documents on the ACH Directory are made available only --
30 (a) as set out in this Division; or
page 166
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Directory Part 9
Access to ACH Directory Division 2
s. 217
1 (b) in the circumstances, to the persons, and to the extent,
2 that the Council considers appropriate; or
3 (c) if the regulations so provide, in accordance with the
4 regulations.
5 (2) However, information that is, or documents that contain,
6 culturally sensitive information about Aboriginal cultural
7 heritage must not be made available to a person unless a
8 knowledge holder for the Aboriginal cultural heritage has
9 explicitly consented to the disclosure of the information to the
10 person.
11 217. Access for Aboriginal people
12 The ACH Council must ensure that the information and
13 documents on the ACH Directory are available to an Aboriginal
14 person, group or community that has traditional rights, interests
15 and responsibilities in respect of --
16 (a) the Aboriginal cultural heritage to which the information
17 or documents relate; or
18 (b) Aboriginal places located in, or Aboriginal objects
19 located in or reasonably believed to have originated
20 from, the area to which the information or documents
21 relate.
22 218. Access to information about protected areas and
23 management of activities
24 The ACH Council must ensure that the information and
25 documents on the ACH Directory are available to the general
26 public to the extent necessary to enable the following to be
27 ascertained --
28 (a) whether or not a particular area includes any area that is
29 part of a protected area;
30 (b) the conditions, if any, to which a protected area order,
31 declaring a particular area as a protected area, is subject;
page 167
Aboriginal Cultural Heritage Bill 2021
Part 9 Aboriginal Cultural Heritage Directory
Division 2 Access to ACH Directory
s. 219
1 (c) the Aboriginal cultural heritage that has been
2 determined by the ACH Council under
3 section 176(1)(b)(i) to be of State significance for the
4 purposes of this Act;
5 (d) whether or not a particular area is the subject of --
6 (i) an ACH permit; or
7 (ii) an approved or authorised ACH management
8 plan;
9 (e) a local ACH service for an area;
10 (f) a native title party for an area;
11 (g) if a particular area is the subject of an ACH permit --
12 the contact details of the holder of the permit;
13 (h) if a particular area is the subject of an approved or
14 authorised ACH management plan -- the contact details
15 of the parties to the plan;
16 (i) whether or not a particular area is the subject of a Part 7
17 order.
18 219. Access for proponents of activities
19 (1) The ACH Council must ensure that the information and
20 documents on the ACH Directory are available to a proponent
21 who intends to carry out an activity that may harm Aboriginal
22 cultural heritage --
23 (a) to the extent that the information and documents relate
24 to the proposed activity or the Aboriginal cultural
25 heritage at risk of harm; and
26 (b) to the extent that the Council considers that a proponent
27 requires the information and documents to enable them
28 to comply with the requirements of this Act.
29 (2) However, information or documents prescribed as excluded
30 from the operation of this section cannot be made available to a
31 proponent under this section.
page 168
Aboriginal Cultural Heritage Bill 2021
Aboriginal Cultural Heritage Directory Part 9
Access to ACH Directory Division 2
s. 220
1 220. Access for research
2 The ACH Council must ensure that the information and
3 documents on the ACH Directory are available to a person
4 carrying out research on, or that relates to, Aboriginal cultural
5 heritage to the extent that, in the Council's opinion --
6 (a) the information and documents on the Directory relate to
7 the research being carried out by the person; and
8 (b) it is appropriate to make the information and documents
9 available for the research.
page 169
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 1 Preliminary
s. 221
1 Part 10 -- Securing compliance
2 Division 1 -- Preliminary
3 221. Terms used
4 In this Part --
5 CI Act means the Criminal Investigation Act 2006;
6 dwelling means a place, or a part of a place, that is ordinarily
7 used for human habitation, whether or not it is from time to time
8 uninhabited;
9 entry warrant means an entry warrant issued under Division 4;
10 inspection purposes means the purposes referred to in
11 section 230;
12 photograph includes to make a digital image or a video
13 recording;
14 reasonably suspects has the meaning given in section 222;
15 seized thing means a thing seized --
16 (a) under section 239; or
17 (b) under the CI Act in the exercise of powers in respect of
18 an offence under this Act;
19 thing relevant to an offence has the meaning given in
20 section 223.
21 222. Reasonably suspects
22 For the purposes of this Part, a person reasonably suspects
23 something at a given time if --
24 (a) the person personally has grounds at the time for
25 suspecting the thing; and
26 (b) those grounds (even if they are subsequently found to be
27 false or non-existent) when judged objectively, are
28 reasonable.
page 170
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspectors Division 2
s. 223
1 223. Thing relevant to an offence
2 (1) For the purposes of this Part, a thing is a thing relevant to an
3 offence if it is reasonably suspected that --
4 (a) the thing has been, is being, or is intended to be used for
5 the purpose of committing an offence under this Act; or
6 (b) the thing has been obtained by the commission of an
7 offence under this Act; or
8 (c) an offence under this Act has been, is being, or may be
9 committed in respect of the thing; or
10 (d) the thing is or may afford --
11 (i) evidence relevant to proving the commission of
12 an offence under this Act or who has committed
13 an offence under this Act; or
14 (ii) evidence that tends to rebut an alibi.
15 (2) For the purposes of this Part, a thing relevant to an offence may
16 be material or non-material, animate (other than human) or
17 inanimate.
18 Division 2 -- Inspectors
19 224. Inspectors
20 (1) The CEO may, in writing, designate any of the following
21 persons as an inspector for the purposes of this Act --
22 (a) a public service officer;
23 (b) a person employed or engaged under the Public Sector
24 Management Act 1994 section 100 by the employing
25 authority of the Department.
26 (2) A person may be designated as an inspector for a fixed or
27 indefinite period.
28 (3) The CEO may, in writing, revoke a designation at any time.
page 171
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 2 Inspectors
s. 225
1 225. Aboriginal inspectors
2 (1) The CEO may, in writing, appoint an Aboriginal person to be an
3 Aboriginal inspector for an area of the State.
4 (2) Before appointing an Aboriginal inspector for a specified area
5 for which a local ACH service is designated, the CEO must --
6 (a) give to the local ACH service for the area, or a part of
7 the area, for which the Aboriginal inspector is to be
8 appointed --
9 (i) written notice of the proposed appointment; and
10 (ii) a reasonable opportunity to make submissions to
11 the CEO about the proposed appointment;
12 and
13 (b) take into account any submission received in making a
14 decision about the proposed appointment.
15 (3) An Aboriginal inspector has, in respect of the area for which the
16 Aboriginal inspector is appointed, the powers conferred by or
17 under this Act on an inspector that are specified in the
18 appointment, and to that extent is taken to be an inspector.
19 (4) A person may be appointed as an Aboriginal inspector for a
20 fixed or indefinite period.
21 (5) The CEO may, in writing, revoke an appointment at any time.
22 226. Identity cards
23 (1) The CEO must cause an identity card to be given to each person
24 designated under section 224(1) or appointed under
25 section 225(1).
26 (2) An identity card must --
27 (a) identify the person as an inspector or an Aboriginal
28 inspector, as is relevant ; and
page 172
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspectors Division 2
s. 227
1 (b) if the person is an Aboriginal inspector -- specify the
2 area of the State for which the person is appointed and
3 the powers conferred on the person; and
4 (c) include a recent photograph of the person.
5 (3) A person who, without reasonable excuse, fails to return their
6 identity card to the CEO on ceasing to be an inspector or an
7 Aboriginal inspector commits an offence.
8 Penalty for this subsection: a fine of $5 000.
9 (4) A person given an identity card under subsection (1) must carry
10 the identity card at all times when exercising powers or
11 performing functions as an inspector unless it is impracticable to
12 do so.
13 227. Production or display of identity card
14 (1) An inspector or an Aboriginal inspector may exercise a power
15 conferred on them as an inspector in relation to another person
16 only if the inspector or Aboriginal inspector --
17 (a) first produces the identity card given to the person under
18 section 226(1) (the identity card) for the other person's
19 inspection; or
20 (b) has the identity card displayed so that it is clearly visible
21 to the other person.
22 (2) Subsection (1) only applies if the inspector or Aboriginal
23 inspector is in the physical presence of the person in relation to
24 whom the power is to be exercised.
25 (3) However, if it is not practicable to comply with subsection (1)
26 before exercising the power, the inspector or Aboriginal
27 inspector may exercise the power and then produce the identity
28 card for inspection by the other person at the first reasonable
29 opportunity.
page 173
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 3 Inspection and related powers
s. 228
1 228. Police officers have powers of inspectors
2 For the purposes of this Act, a police officer has the powers of
3 an inspector under this Act and is taken to be an inspector.
4 229. Impersonating an inspector or an Aboriginal inspector
5 A person must not falsely represent by words or conduct that the
6 person is an inspector or an Aboriginal inspector.
7 Penalty: imprisonment for 12 months or a fine of $12 000, or
8 both.
9 Division 3 -- Inspection and related powers
10 230. Purposes for which inspection may be carried out
11 An inspector may carry out an inspection for any of the
12 following purposes --
13 (a) to ascertain whether this Act or any instrument has been
14 or is being contravened;
15 (b) to inspect any records that are kept under or for the
16 purposes of this Act or that are relevant to determining
17 whether this Act or any instrument has been or is being
18 contravened;
19 (c) any other purpose prescribed for the purposes of this
20 paragraph.
21 231. Power to enter places
22 (1) For inspection purposes an inspector may do any of the
23 following --
24 (a) subject to section 232, at any time enter a place that is
25 not a dwelling;
26 (b) at any time enter a dwelling with the informed consent
27 of an occupier of the dwelling;
28 (c) enter a place in accordance with an entry warrant.
page 174
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspection and related powers Division 3
s. 232
1 (2) For the purposes of subsection (1)(b), an occupier gives
2 informed consent if the occupier consents after being informed
3 by the inspector --
4 (a) of the powers that the inspector wants to exercise in
5 carrying out the inspection in respect of the dwelling;
6 and
7 (b) of the reasons why the inspector wants to exercise those
8 powers; and
9 (c) that the occupier may refuse to consent to the inspector
10 entering the dwelling.
11 232. Entering Aboriginal places
12 (1) Before entering a place under section 231(1)(a), an inspector
13 must take all reasonable steps to determine --
14 (a) whether the place is an Aboriginal place; and
15 (b) if the place is an Aboriginal place -- whether in
16 accordance with Aboriginal tradition there are
17 restrictions on entry to the place.
18 (2) If the inspector determines that the place is an Aboriginal place
19 and that in accordance with Aboriginal tradition there are
20 restrictions on entry to the place, the inspector can only enter
21 the place if --
22 (a) the inspector is permitted to enter the place in
23 accordance with Aboriginal tradition; or
24 (b) the inspector is accompanied by a person who is
25 permitted to enter the place in accordance with
26 Aboriginal tradition.
27 (3) However, an inspector may enter a place without complying
28 with subsection (2) if the inspector considers on reasonable
29 grounds that the entry is necessary to prevent harm to
30 Aboriginal cultural heritage.
page 175
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 3 Inspection and related powers
s. 233
1 233. Power to enter includes power to enter some other places
2 (1) This section applies if under section 231(1) an inspector may
3 enter a place.
4 (2) If the place is 1 of 2 or more premises in a single building, then,
5 in order to enter the place, the inspector may enter, but not
6 inspect, any part of the building that the occupiers of the place
7 use exclusively but in common with each other.
8 234. Power to stop and enter vehicles, and ancillary powers
9 (1) In this section --
10 mobile home means a vehicle that is --
11 (a) ordinarily used for human habitation; and
12 (b) permanently or semi-permanently stationary in a single
13 location.
14 (2) For inspection purposes an inspector may at any time stop and
15 enter a vehicle other than a mobile home.
16 (3) If under subsection (2) an inspector may stop a vehicle, the
17 inspector may use any means that are reasonably necessary in
18 the circumstances to do so.
19 (4) Subsection (3) does not authorise the use of means that are
20 likely to cause death or grievous bodily harm to any person,
21 whether or not the person is in the vehicle.
22 (5) An inspector who under subsection (2) stops a vehicle may --
23 (a) detain the vehicle for a reasonable period; and
24 (b) move the vehicle to another place suitable for carrying
25 out an inspection.
26 235. Application of CI Act s. 31
27 The CI Act section 31 (the applied provision) applies, with all
28 necessary modifications, to and in relation to the entry of a
page 176
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspection and related powers Division 3
s. 236
1 place under section 231(1)(a) or (c) or 233, or a vehicle under
2 section 234(2), as if references in the applied provision to --
3 (a) a place included references to a vehicle; and
4 (b) an occupier included references to a person in charge of
5 a vehicle; and
6 (c) an officer were references to an inspector; and
7 (d) a search warrant were references to an entry warrant;
8 and
9 (e) a search were references to an inspection.
10 236. Other powers related to inspection
11 For inspection purposes an inspector may do any of the
12 following --
13 (a) take onto or into, and use on or in, a place or vehicle any
14 equipment or facilities that are reasonably necessary in
15 order to carry out the inspection;
16 (b) make reasonable use of any equipment, facilities or
17 services on or in a place or vehicle in order to carry out
18 an inspection and for that purpose operate the equipment
19 or facilities;
20 (c) remain on or in a place or vehicle for as long as is
21 reasonably necessary to carry out the inspection;
22 (d) inspect and open any package, compartment, cupboard
23 or container of any kind, and inspect its contents;
24 (e) inspect any enclosure or similar structure on or in a
25 place or vehicle;
26 (f) photograph or otherwise make a record of a place or
27 vehicle and any thing in or on the place or vehicle;
28 (g) take samples or specimens of, or from, water or soil;
29 (h) apply an identifier to any object;
30 (i) survey and mark out land for any purposes relevant to
31 carrying out the inspection;
page 177
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 3 Inspection and related powers
s. 237
1 (j) label any thing.
2 237. Obtaining records
3 (1) In this section --
4 relevant record means an instrument, publication or other
5 record that contains information that is relevant to compliance
6 with this Act.
7 (2) For inspection purposes an inspector may do any of the
8 following --
9 (a) direct a person who has the custody or control of a
10 relevant record to give the inspector the record or a copy
11 of the record;
12 (b) direct a person who has the custody or control of a
13 record, or of a computer or other thing on which a
14 relevant record is or may be stored to make or print a
15 copy of the record or to operate the computer or thing;
16 (c) operate a computer or other thing on which a relevant
17 record is or may be stored;
18 (d) direct a person who is or appears to be in control of a
19 record that the inspector reasonably suspects is a
20 relevant record to give the inspector a translation, code,
21 password or other information necessary to gain access
22 to or interpret and understand the record;
23 (e) take extracts from, make copies of, download, print or
24 photograph a record that the inspector reasonably
25 suspects is a relevant record;
26 (f) take reasonable measures to secure or protect a relevant
27 record, or computer or other thing on which a relevant
28 record is or may be stored, against damage or
29 unauthorised removal or interference.
30 (3) If an inspector is given a relevant record, the inspector must, if
31 practicable, allow a person who is otherwise entitled to
32 possession of the record to have reasonable access to it.
page 178
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspection and related powers Division 3
s. 238
1 238. Directions
2 For inspection purposes an inspector may do any of the
3 following --
4 (a) direct an occupier of a place or vehicle, or a person who
5 is or appears to be in possession or control of a thing, to
6 give to the inspector, orally or in writing --
7 (i) any information in the person's possession or
8 control as to the name and address of the owner
9 of the place, vehicle or thing; and
10 (ii) any other information in the person's possession
11 or control that is relevant to an inspection;
12 (b) direct an occupier of a place or vehicle to answer
13 questions;
14 (c) direct an occupier of a place or vehicle to open or unlock
15 any thing in or on the place or vehicle to which the
16 inspector requires access;
17 (d) direct an occupier of a place to give the inspector a plan,
18 or access to a plan, of the place;
19 (e) direct an occupier of a place or vehicle, or a person who
20 is or appears to be in possession or control of a thing, to
21 give the inspector any assistance that the inspector
22 reasonably requires to perform the inspector's functions
23 in relation to the place, vehicle or thing;
24 (f) direct an occupier of a vehicle to move the vehicle to a
25 place specified by the inspector for inspection of the
26 vehicle;
27 (g) direct a person who is or appears to be in control of a
28 consignment of goods to move the consignment to a
29 place specified by the inspector for inspection of the
30 consignment;
31 (h) direct a person who is or appears to be in control of an
32 object to do anything reasonably necessary to identify
33 the object;
page 179
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 3 Inspection and related powers
s. 239
1 (i) direct a person who is or appears to be in control of any
2 goods, vehicle, package or container to label the goods,
3 vehicle, package or container;
4 (j) direct a person who is or appears to be in control of an
5 object to keep possession of that object until further
6 directed by the inspector;
7 (k) direct a person who is or appears to be in control of an
8 object to leave that object at a place specified by the
9 inspector until further directed by the inspector.
10 239. Seizure of thing relevant to an offence
11 (1) This section does not authorise the seizure of Aboriginal
12 ancestral remains.
13 (2) If an inspector, when exercising a power under this Division,
14 finds a thing relevant to an offence under this Act, the inspector
15 may, subject to subsection (3), seize the thing.
16 (3) The inspector may seize a thing under subsection (2) only if the
17 inspector reasonably suspects any of the following --
18 (a) that the thing has been unlawfully obtained;
19 (b) that possession of the thing at that time and place by the
20 person in possession of it is unlawful;
21 (c) that it is necessary to seize the thing for any of the
22 following purposes --
23 (i) to prevent it from being concealed, damaged,
24 destroyed, interfered with or lost;
25 (ii) to preserve its evidentiary value;
26 (iii) to prevent it from being used in the commission
27 of another offence under this Act.
28 (4) The CI Act sections 147, 148, 149 and 151 (the applied
29 provisions) apply, with all necessary modifications, to and in
30 relation to --
31 (a) the seizure of a thing under subsection (2); and
page 180
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspection and related powers Division 3
s. 240
1 (b) a thing that may be seized under subsection (2); and
2 (c) a thing seized under subsection (2).
3 (5) The applied provisions apply as if references in those provisions
4 to an officer were references to an inspector.
5 (6) If an inspector seizes a thing under subsection (2), the inspector
6 must --
7 (a) issue a receipt for the thing in the form approved by the
8 CEO; and
9 (b) either --
10 (i) if the occupier of the place or vehicle is
11 present -- give the receipt to the occupier; or
12 (ii) in any other case -- leave the receipt at the place
13 or in or on the vehicle in an envelope addressed
14 to the occupier of the place or vehicle, or
15 otherwise give notice of the receipt.
16 (7) However, if it is not practicable to comply with
17 subsection (6)(b)(i), the person may seize the thing and at the
18 first reasonable opportunity leave, or otherwise give notice of,
19 the receipt in accordance with subsection (6)(b)(ii).
20 (8) The form prescribed for the CI Act section 147(1), as applied by
21 subsection (4), may be modified as necessary for the purposes
22 of this section.
23 240. Security of seized things
24 (1) If, under section 239(2) or in the exercise of powers under the
25 CI Act, an inspector seizes a thing, the inspector must take
26 reasonable steps to ensure that the thing is kept in a secure
27 manner.
28 (2) A person must not move, tamper or otherwise interfere with a
29 seized thing without the approval of an inspector.
30 Penalty for this subsection: a fine of $10 000.
page 181
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 3 Inspection and related powers
s. 241
1 241. Dealing with seized things
2 (1) In this section --
3 deal with includes to preserve, treat, sell, give away, use and
4 destroy.
5 (2) If, under section 239(2) or in the exercise of powers under the
6 CI Act, an inspector seizes a thing, and in the opinion of the
7 inspector, the thing is likely to deteriorate if no action is taken to
8 deal with it, the inspector may deal with the thing in accordance
9 with the directions of the CEO.
10 (3) Subsection (2) does not apply if the seized thing is an
11 Aboriginal object except to the extent that it allows the object to
12 be transferred to the ACH Council to be dealt with under
13 section 66, whether or not the object is a secret or sacred object.
14 (4) If a seized thing is sold under subsection (2), the proceeds of the
15 sale, after the deduction of expenses incidental to the sale --
16 (a) if subsection (5) applies -- are to be paid to the person
17 entitled to possession of the thing before it was seized;
18 or
19 (b) otherwise -- are to be credited to the Aboriginal
20 Cultural Heritage Account established under
21 section 279(1).
22 (5) This subsection applies if --
23 (a) under section 239(2) or in the exercise of powers under
24 the CI Act, a thing is seized in connection with an
25 offence under this Act; and
26 (b) the thing is sold under subsection (2); and
27 (c) the decision is subsequently made not to commence a
28 prosecution in respect of the offence or, after the
29 prosecution has been completed, no person is convicted
30 of the offence.
page 182
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Inspection and related powers Division 3
s. 242
1 242. Dealing with Aboriginal ancestral remains
2 If an inspector, when exercising a power under this Division,
3 finds human remains that the inspector reasonably considers
4 may be Aboriginal ancestral remains, the inspector must --
5 (a) take reasonable steps to ensure that the human remains
6 are kept in a secure manner; and
7 (b) as soon as practicable, transfer the human remains into
8 the custody of the ACH Council to be dealt with under
9 section 60.
10 243. Forensic examination
11 (1) In this section --
12 forensic examination, of a sample, specimen or other thing,
13 means any or all of the following --
14 (a) to examine or operate it;
15 (b) to photograph, measure or otherwise make a record of it;
16 (c) to take an impression of it;
17 (d) to take samples of or from it;
18 (e) to do tests on it, or on any sample taken under
19 paragraph (d), for forensic purposes.
20 (2) If an inspector takes a sample or specimen under section 236(g)
21 the inspector may do a forensic examination, or arrange for a
22 forensic examination to be done, of the sample or specimen.
23 (3) If an inspector, when exercising a power under this Division,
24 finds a thing that may be seized under section 239(2), then
25 whether or not the inspector seizes the thing, the inspector may
26 do a forensic examination, or arrange for a forensic examination
27 to be done, of the thing.
28 (4) If it is reasonably necessary to do so in order to do a forensic
29 examination, the sample, specimen or thing may, unless the
30 thing is an Aboriginal object, be dismantled, damaged or
31 destroyed.
page 183
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 4 Entry warrants
s. 244
1 (5) The power in subsection (3) cannot be exercised in relation to a
2 thing that may contain information that is privileged, as defined
3 in the CI Act section 151(1), until under that section (as applied
4 by section 239(4) of this Act) --
5 (a) a decision has been made that the information is not
6 privileged; or
7 (b) an order has been made to enable the power to be
8 exercised.
9 Division 4 -- Entry warrants
10 244. Applying for entry warrant
11 (1) An inspector may apply to a magistrate for an entry warrant
12 authorising the entry of a place or vehicle for inspection
13 purposes.
14 (2) An inspector may apply for an entry warrant for a place or
15 vehicle even if, under Division 3, an inspector may enter the
16 place or vehicle without an entry warrant.
17 (3) An application under subsection (1) must be made in
18 accordance with section 245 and include the information, if any,
19 prescribed for the purposes of this subsection.
20 245. Making application for entry warrant
21 (1) In this section --
22 application means an application under section 244(1);
23 remote communication means any way of communicating at a
24 distance, including by telephone, fax, radio, videoconferencing,
25 email and other electronic means.
26 (2) A reference in this section to making an application includes a
27 reference to giving information in support of an application.
page 184
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Entry warrants Division 4
s. 245
1 (3) An application must be made in person before a magistrate
2 unless --
3 (a) the entry warrant is needed urgently and the applicant
4 reasonably suspects that a magistrate is not available
5 within a reasonable distance of the applicant; or
6 (b) the application, were it an application under the CI Act
7 section 13, could be lodged electronically under the
8 Courts and Tribunals (Electronic Processes
9 Facilitation) Act 2013 Part 2.
10 (4) If subsection (3)(a) or (b) apply --
11 (a) the application may be made to a magistrate by remote
12 communication; and
13 (b) the magistrate may grant the application only if satisfied
14 about the matters described in subsection (3)(a) or (b).
15 (5) An application must be in writing unless --
16 (a) the application is made by remote communication; and
17 (b) it is not practicable to send the magistrate written
18 material.
19 (6) If subsection (5)(a) and (b) apply --
20 (a) the application may be made orally; and
21 (b) the magistrate must make a written record of --
22 (i) the application; and
23 (ii) any information given in support of the
24 application.
25 (7) An application must be made on oath unless --
26 (a) the application is made by remote communication; and
27 (b) it is not practicable for the magistrate to administer an
28 oath to the applicant.
29 (8) If subsection (7)(a) and (b) apply --
30 (a) the application may be made in an unsworn form; and
page 185
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 4 Entry warrants
s. 246
1 (b) if the magistrate issues an entry warrant, the applicant
2 must, as soon as practicable, send the magistrate an
3 affidavit verifying --
4 (i) the application; and
5 (ii) any information given in support of the
6 application.
7 246. Further provisions relating to application for entry warrant
8 (1) If, on an application for an entry warrant under section 244(1)
9 made by remote communication under section 245 a magistrate
10 issues an entry warrant, the magistrate must, if practicable, send
11 a copy of the original warrant to the applicant by remote
12 communication, but otherwise --
13 (a) the magistrate must send to the applicant by remote
14 communication any information that must be set out in
15 the warrant; and
16 (b) the applicant must --
17 (i) complete a form of warrant with the information
18 received; and
19 (ii) give the magistrate a copy of the form as soon as
20 practicable after completing the form;
21 and
22 (c) the magistrate must --
23 (i) attach the copy of the form to the original
24 warrant and any affidavit received from the
25 applicant; and
26 (ii) make them available for collection by the
27 applicant.
28 (2) The copy of the original warrant sent, or the form of the warrant
29 completed, as the case may be, under subsection (1) has the
30 same force as the original warrant.
page 186
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Entry warrants Division 4
s. 247
1 (3) If an applicant contravenes subsection (1)(b) or
2 section 245(8)(b), any evidence obtained under the entry
3 warrant is not admissible in proceedings in a court or the State
4 Administrative Tribunal.
5 247. Issuing entry warrant
6 (1) A magistrate may issue an entry warrant only if satisfied that,
7 for inspection purposes, it is necessary for an inspector to enter
8 a place or vehicle.
9 (2) An entry warrant must contain the following information --
10 (a) a reasonably particular description of the place or
11 vehicle to which it relates;
12 (b) a reasonably particular description of the inspection
13 purposes for which entry to the place or vehicle is
14 required;
15 (c) the period, not exceeding 30 days, during which it may
16 be executed;
17 (d) the name of the magistrate who issued it;
18 (e) the date and time when it was issued.
19 (3) If a magistrate refuses to issue an entry warrant, the magistrate
20 must record on the application the fact of, the date and time of,
21 and the reasons for, the refusal.
22 248. Effect of entry warrant
23 (1) An entry warrant has effect according to its content and this
24 section.
25 (2) An entry warrant comes into force when it is issued by the
26 magistrate.
27 (3) An entry warrant authorises the inspector executing the
28 warrant --
29 (a) to enter the place or vehicle described in the warrant;
30 and
page 187
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 5 Other provisions
s. 249
1 (b) to exercise the powers conferred by Division 3.
2 249. Execution of entry warrant
3 (1) An entry warrant may be executed by the inspector to whom it
4 is issued or by any other inspector.
5 (2) An inspector executing an entry warrant must, at the reasonable
6 request of a person apparently in charge of the place or vehicle
7 to which the warrant relates, produce the warrant.
8 Division 5 -- Other provisions
9 250. Direction may be given orally or in writing
10 (1) A direction under this Part may be given by an inspector orally
11 or in writing.
12 (2) A direction that is given orally must be confirmed in writing
13 within 5 business days after it is given, unless within that period
14 it is complied with or cancelled.
15 (3) Failure to comply with subsection (2) does not invalidate the
16 direction.
17 251. Time and place for compliance with direction
18 An inspector may specify the date and time when, and place
19 where, a direction given under this Part must be complied with.
20 252. Contravention of directions
21 A person must not, without reasonable excuse, contravene a
22 direction given to the person by an inspector under this Part .
23 Penalty: a fine of $10 000.
24 253. Exercise of power may be recorded
25 An inspector may record the exercise of a power under this Act,
26 including by making an audiovisual recording.
page 188
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Other provisions Division 5
s. 254
1 254. Assistance to exercise powers
2 (1) An inspector exercising a power under this Act may authorise as
3 many other persons to assist in exercising the power as are
4 reasonably necessary in the circumstances.
5 (2) A person who, under subsection (1), is authorised by an
6 inspector to assist in exercising a power must obey any lawful
7 and reasonable direction given to the person by the inspector
8 when assisting in exercising the power.
9 (3) For the purposes of section 305, a person who assists in
10 exercising a power under this Act, having been authorised under
11 subsection (1) by an inspector to do so, is taken to be
12 performing a function under this Act.
13 (4) The protection from liability given to a person under
14 subsection (3) does not extend to anything done or omitted to be
15 done by the person in contravention of a lawful and reasonable
16 direction referred to in subsection (2).
17 255. Application of CI Act s. 154 and 155
18 The CI Act sections 154 and 155 apply, with all necessary
19 modifications, to and in relation to a thing seized under
20 section 239(2) as if references in those provisions to --
21 (a) an authorisation under that Act were references to an
22 entry warrant; and
23 (b) a power conferred by, or a requirement of, that Act were
24 references to a power conferred by, or a requirement of,
25 this Act.
26 256. Obstruction of inspector
27 A person must not obstruct an inspector, or a person assisting an
28 inspector, in the exercise or attempted exercise of a power under
29 this Act.
30 Penalty: a fine of $20 000.
page 189
Aboriginal Cultural Heritage Bill 2021
Part 10 Securing compliance
Division 5 Other provisions
s. 257
1 257. Self-incrimination not an excuse
2 (1) An individual is not excused from complying with a direction
3 under this Part to provide information or answer a question, or
4 to produce a record or thing, on the ground that the information,
5 answer, record or thing might incriminate the individual or
6 make the individual liable to a penalty.
7 (2) However, any information or answer provided, or document or
8 thing produced, by an individual in compliance with a direction
9 under this Part is not admissible as evidence in any proceedings
10 against the individual other than proceedings for perjury or an
11 offence under section 304(1).
12 258. Orders for forfeiture or disposal of seized things
13 (1) Subject to subsection (2), a court that convicts a person of an
14 offence under this Act may make an order for the forfeiture to
15 the State, or the destruction or disposal, of a seized thing if the
16 court is satisfied that the thing was the subject of, used in, or
17 otherwise involved in, the commission of the offence.
18 (2) Subsection (1) does not apply to a seized thing that is an
19 Aboriginal object except to the extent that it allows the object to
20 be forfeited to the State and transferred to the ACH Council to
21 be dealt with under section 66, whether or not the object is a
22 secret or sacred object.
23 259. Application of Criminal and Found Property Disposal
24 Act 2006
25 (1) The Criminal and Found Property Disposal Act 2006 applies to
26 and in respect of --
27 (a) any seized thing unless the thing is dealt with under
28 section 241; and
29 (b) any thing forfeited under section 258, other than an
30 Aboriginal object.
page 190
Aboriginal Cultural Heritage Bill 2021
Securing compliance Part 10
Other provisions Division 5
s. 259
1 (2) The Department, when assisting the Minister in the
2 administration of this Act, is a prescribed agency for the
3 purposes of the Criminal and Found Property Disposal
4 Act 2006.
page 191
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 1 General provisions relating to offences
s. 260
1 Part 11 -- Legal proceedings
2 Division 1 -- General provisions relating to offences
3 260. Who may commence proceedings
4 (1) A prosecution of an offence under this Act, or proceedings in
5 respect of any other matter arising under this Act, may be
6 commenced by the CEO or by a person authorised by the CEO
7 to do so.
8 (2) Subsection (1) does not limit the ability of a person to
9 commence or conduct the prosecution of an offence under this
10 Act if the person has authority at law to do so.
11 261. Time limit for prosecution of simple offence
12 (1) A prosecution of a simple offence under this Act must be
13 commenced within 6 years after the date on which the offence
14 was allegedly committed.
15 (2) However, if a prosecution notice alleging a simple offence
16 under this Act specifies the date on which evidence of the
17 alleged offence first came to the attention of a person authorised
18 to commence the prosecution (the date specified) --
19 (a) the prosecution may be commenced within 2 years after
20 the date specified; and
21 (b) the prosecution notice need not contain particulars of the
22 date on which the offence was allegedly committed.
23 (3) The date on which evidence of the alleged offence first came to
24 the attention of a person authorised to commence a prosecution
25 is, in the absence of evidence to the contrary, the date specified.
page 192
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Court may order costs and expenses Division 2
s. 262
1 Division 2 -- Court may order costs and expenses
2 262. Court may order costs and expenses
3 (1) A court that hears proceedings for an offence under this Act has
4 power to make the orders that it thinks fit in respect of the costs
5 and expenses of, and incidental to, the examination, seizure,
6 detention, storage, analysis, destruction or other disposition of
7 anything the subject of those proceedings.
8 (2) Subsection (1) does not affect --
9 (a) any other power of a court to award costs; or
10 (b) the Criminal Procedure Act 2004 section 123.
11 Division 3 -- Criminal liability of body corporate officers,
12 employees and others
13 263. Term used: officer
14 In this Division --
15 officer, in relation to a body corporate, has the meaning given in
16 the Corporations Act 2001 (Commonwealth) section 9.
17 264. Liability of officers for offence by body corporate
18 (1) This section applies to an offence under a provision of this Act
19 listed in the Table.
20 Table
s. 52(1) s. 56(1) s. 57(1) and (4)
s. 61(1) s. 64(1) s. 67(1)
s. 68(1) s. 88(1) s. 92
s. 93(1) s. 94 s. 95
s. 127(1) s. 133 s. 171(4)
page 193
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 3 Criminal liability of body corporate officers, employees and
others
s. 265
s. 173 s. 183(1) and (2) s. 190(1) and (2)
s. 196(1) and (2) s. 205(1) and (2) s. 240(2)
s. 252 s. 256 s. 304(1)
s. 306(2)
1 (2) If a body corporate is guilty of an offence to which this section
2 applies, an officer of the body corporate is also guilty of the
3 offence if the officer failed to take all reasonable steps to
4 prevent the commission of the offence by the body corporate.
5 (3) In determining whether things done or omitted to be done by the
6 officer constitute reasonable steps, a court must have regard
7 to --
8 (a) what the officer knew, or ought to have known, about
9 the commission of the offence by the body corporate;
10 and
11 (b) whether the officer was in a position to influence the
12 conduct of the body corporate in relation to the
13 commission of the offence; and
14 (c) any other relevant matter.
15 265. Further provisions relating to liability of officers of body
16 corporate
17 (1) Section 264 does not affect the liability of a body corporate for
18 any offence under this Act.
19 (2) Section 264 does not affect the liability of an officer of a body
20 corporate, or any other persons, under The Criminal Code
21 Chapters II, LVII, LVIII and LIX.
22 (3) An officer of a body corporate may be charged with, and
23 convicted of, an offence under a provision of this Act in
24 accordance with section 264 whether or not the body corporate
25 has been proceeded against or convicted under that provision.
page 194
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Criminal liability of body corporate officers, employees and Division 3
others
s. 266
1 (4) If an officer of a body corporate who is charged with an offence
2 under this Act in accordance with section 264 claims that the
3 body corporate would have a defence if it were charged with the
4 offence --
5 (a) the onus of proving the defence is on the officer; and
6 (b) the standard of proof required is the standard that would
7 apply to the body corporate in relation to the defence.
8 (5) Subsection (4) does not limit any other defence available to the
9 officer.
10 266. Liability of partners
11 (1) If an ACH permit is granted to a partner in relation to the
12 activities of a partnership, each partner in the partnership has the
13 same rights and duties as the holder of the permit, whether or
14 not the partner is named in the permit.
15 (2) If an ACH management plan is approved under
16 section 150(1)(b)(i) or authorised under section 165(1)(b)(i) in
17 respect of the activities of a proponent that is in a partnership,
18 each partner in the partnership has the same rights and duties as
19 a party to the plan, whether or not the partner is named in the
20 plan.
21 267. Liability of principals for offence by agent
22 (1) If a person (the agent) acting, otherwise than as an employee,
23 for or on behalf of another person (the principal) contravenes
24 any provision of this Act, the principal is taken to have
25 contravened the same provision.
26 (2) For the purposes of this section, an agent and principal
27 relationship exists --
28 (a) if a person (the agent) carries out, manages or controls
29 an activity the subject of an authorisation under Part 6
30 Division 4 for or on behalf of the proponent for the
31 activity (the principal);
page 195
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 3 Criminal liability of body corporate officers, employees and
others
s. 268
1 (b) whether the agent is acting directly for the principal or
2 acting indirectly through another person, or persons,
3 including a contractor, subcontractor or consultant.
4 (3) In proceedings against a principal for such a contravention, it is
5 a defence to prove that the principal took all reasonable steps to
6 prevent the commission of the offence by the agent.
7 (4) In determining whether things done or omitted to be done by the
8 principal constituted reasonable steps, a court must have regard
9 to --
10 (a) what the principal knew, or ought to have known, about
11 the risk of the contravention occurring; and
12 (b) whether the principal could, by the exercise of due
13 diligence, have prevented the contravention; and
14 (c) any other relevant matter.
15 (5) A principal may be proceeded against and convicted under a
16 provision of this Act in accordance with this section whether or
17 not the agent has been proceeded against or convicted under that
18 provision.
19 268. Liability of employer for offences by employee
20 (1) If an employee of another person (the employer) contravenes
21 any provision of this Act while acting as an employee, the
22 employer is taken to have contravened the same provision,
23 whether or not the employee contravened the provision --
24 (a) without the employer's authority; or
25 (b) contrary to the employer's orders or instructions.
26 (2) In proceedings against an employer for such a contravention, it
27 is a defence to prove that the employer took all reasonable steps
28 to prevent the commission of the offence by the employee.
page 196
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Evidentiary provisions Division 4
s. 269
1 (3) In determining whether things done or omitted to be done by the
2 employer constituted reasonable steps, a court must have regard
3 to --
4 (a) what the employer knew, or ought to have known, about
5 the risk of the contravention occurring; and
6 (b) whether the employer could, by the exercise of due
7 diligence, have prevented the contravention; and
8 (c) any other relevant matter.
9 (4) An employer may be proceeded against and convicted under a
10 provision of this Act in accordance with this section whether or
11 not the employee has been proceeded against or convicted under
12 that provision.
13 269. Liability of employees and agents
14 It is not a defence to a charge of an offence under this Act that
15 the accused person was, at the time of the commission of the
16 offence, an employee or agent of another person.
17 Division 4 -- Evidentiary provisions
18 270. Application of Division
19 (1) This Division applies for the purposes of proceedings for an
20 offence under this Act.
21 (2) A provision of this Division that provides for a matter to be
22 taken to be proved applies only in the absence of evidence to the
23 contrary.
24 (3) This Division is in addition to and does not affect the operation
25 of the Evidence Act 1906.
page 197
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 4 Evidentiary provisions
s. 271
1 271. Certain matters taken to be proved if alleged in prosecution
2 notice or indictment
3 An allegation in a prosecution notice or indictment of any
4 matter listed in the Table is taken to be proved.
5 Table
Item Matter
1. That the person who commenced the proceeding is
authorised to do so
2. That specified land is land of a specified
description
Example for this item:
Crown land
3. That on a specified day or during a specified
period a specified person was the landholder of
specified land
4. That a document purporting to have been signed
or executed, as relevant, by the Minister, the CEO,
an inspector, an Aboriginal inspector or the ACH
Council was signed, or executed, as relevant, by a
person who at the specified time was the Minister,
the CEO, an inspector, an Aboriginal inspector or
a person authorised to sign or execute the
document on behalf of the Council, as the case
requires
6 272. Evidence of certain matters if stated in certificate
7 (1) In this section --
8 authorised person means a person designated under
9 subsection (2).
page 198
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Evidentiary provisions Division 4
s. 272
1 (2) The Minister may, by notice published in the Gazette, designate
2 a person to be an authorised person for the purposes of this
3 section.
4 (3) Production of a certificate purporting to be signed by the CEO
5 and stating any of the matters listed in the Table is, without
6 proof of the CEO's signature, taken to be evidence of the facts
7 stated in the certificate.
8 Table
Item Matter
1. That on a specified day or during a specified
period a person was or was not --
(a) the holder of an ACH permit; or
(b) a party to an approved or authorised
ACH management plan; or
(c) a person given a Part 7 order
2. That on a specified day or during a specified
period a specified instrument was or was not of
effect
3. That on a specified day or during a specified
period a specified instrument was or was not
subject to a specified condition
4. That on a specified day or during a specified
period a Part 7 order contained or did not contain
a specified direction
5. That on a specified day or during a specified
period a specified person was or was not
authorised to carry out a specified activity under a
specified instrument
page 199
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 4 Evidentiary provisions
s. 272
Item Matter
6. That on a specified day or during a specified
period a specified person was or was not
designated as a local ACH service for a specified
area
7. That on a specified day or during a specified
period a person was or was not a native title party
for a specified area
8. That on a specified day or during a specified
period a body was or was not a native title
representative body for a specified area
9. That on a specified day or during a specified
period a person was or was not an inspector, an
Aboriginal inspector or a person authorised to
assist an inspector or an Aboriginal inspector
10. That on a specified day or during a specified
period a specified area did or did not include any
area that was part of a protected area
11. That on a specified day or during a specified
period specified Aboriginal cultural heritage was
determined under section 176(1)(b) to be or not to
be of State significance for the purposes of this
Act
12. That on a specified day or during a specified
period a person held or did not hold a specified
office
1 (4) Production of a certificate purporting to be signed by an
2 authorised person and stating any of the matters listed in the
page 200
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Evidentiary provisions Division 4
s. 272
1 Table is, without proof of the authorised person's signature,
2 evidence of the facts stated in the certificate.
3 Table
Item Matter
1. That on a specified day or during a specified
period a specified place was or was not an
Aboriginal place
2. That on a specified day or during a specified
period a specified thing was or was not an
Aboriginal object
3. That on a specified day or during a specified
period a specified thing was or was not a secret or
sacred object
4. That on a specified day or during a specified
period specified human remains were or were not
Aboriginal ancestral remains
5. That on a specified day or during a specified
period a specified person was or was not a
custodian of Aboriginal ancestral remains
6. That on a specified day or during a specified
period a specified person was or was not a
custodian of a specified secret or sacred object
7. That on a specified day or during a specified
period a person was or was not a knowledge
holder for a specified area
4 (5) Subsections (3) and (4) only apply if --
5 (a) at least 28 days before the hearing at which the
6 certificate is proposed to be produced, written notice
page 201
Aboriginal Cultural Heritage Bill 2021
Part 11 Legal proceedings
Division 4 Evidentiary provisions
s. 273
1 was given to the accused of the prosecutor's intention to
2 produce the certificate; and
3 (b) the accused has not, within 14 days after receipt of the
4 notice, delivered to the prosecutor a notice requiring that
5 the evidence of the CEO or the authorised person be
6 given in person.
7 (6) The court before which proceedings are held may, in addition to
8 making any other order as to costs, make any order it thinks fit
9 as to the expenses and remuneration to be paid for the services
10 of the CEO or the authorised person.
11 273. Evidence in relation to documents
12 (1) A document certified by the CEO to be a true copy of an
13 instrument as at a specified date --
14 (a) is taken to be proved to be a copy of the original
15 document as at that date; and
16 (b) is admissible in the same way, and has the same
17 evidentiary value, as the original.
18 (2) A document certified by the CEO to be a true copy of the
19 ACH Directory, or any part of the Directory, as at a specified
20 date is taken to be proof of the contents of the Directory, or that
21 part of the Directory, as at that date.
22 (3) A document certified by the CEO to be a true copy of specified
23 guidelines as at a specified date or during a specified period is
24 taken to be proof of the contents of the guidelines as at that date
25 or during that period.
26 (4) A document purporting to have been signed by a delegate of the
27 Minister, the ACH Council or the CEO is taken to have been
28 signed by a person who at the time was such a delegate and was
29 authorised to sign it.
30 (5) A copy of a document or record obtained by an inspector or an
31 Aboriginal inspector exercising a power under Part 10
32 Division 3 is admissible in evidence if it is certified by the
page 202
Aboriginal Cultural Heritage Bill 2021
Legal proceedings Part 11
Evidentiary provisions Division 4
s. 274
1 inspector or the Aboriginal inspector, as is relevant, as having
2 been obtained in the exercise of that power.
3 274. Onus of proving certain matters
4 In any proceedings for an offence under this Act, the onus of
5 proving a matter listed in the Table lies with the person
6 asserting the matter.
7 Table
Item Matter
1. That a person has undertaken consultation in
accordance with the consultation guidelines
2 That a person has undertaken a due diligence
assessment in accordance with the ACH
Management Code
3. That conduct was engaged in with reasonable
excuse
page 203
Aboriginal Cultural Heritage Bill 2021
Part 12 Review by State Administrative Tribunal
Division 1 Preliminary
s. 275
1 Part 12 -- Review by State Administrative Tribunal
2 Division 1 -- Preliminary
3 275. Application of Part
4 This Part applies where jurisdiction is conferred on the State
5 Administrative Tribunal under Division 2 in relation to the
6 review of a decision under this Act.
7 276. Terms used
8 In this Part --
9 affected person, in relation to a reviewable decision, has the
10 meaning given in section 277(1)(b);
11 reviewable decision has the meaning given in section 277(1)(a).
12 Division 2 -- Review by State Administrative Tribunal
13 277. Review of certain decisions
14 (1) The Table sets out --
15 (a) decisions made under this Act that are reviewable in
16 accordance with this Part (reviewable decision); and
17 (b) who is eligible to apply for a review of a reviewable
18 decision (the affected person).
19 Table
Item Reviewable decision Affected person
1. A decision of the Minister A party to the
under section 154(1) to cancel ACH management
or suspend the approval of an plan
ACH management plan
page 204
Aboriginal Cultural Heritage Bill 2021
Review by State Administrative Tribunal Part 12
Review by State Administrative Tribunal Division 2
s. 277
Item Reviewable decision Affected person
2. A decision of the Minister The person who was
under section 180(1) to give a given the stop
stop activity order activity order
3. A decision of the Minister The person who was
under section 188(1)(b)(i) to given the prohibition
give a prohibition order order
4. A decision of the Minister The person who was
under section 191(1) to extend given the prohibition
the term of a prohibition order order
5. A decision of the Minister The person who was
under section 194(1) to give a given the
remediation order remediation order
6. A decision by the Minister The person who was
under section 203(1)(a) to given the prohibition
amend or cancel a prohibition order
order A person referred to
in section 187(3)(b)
to (d)
1 (2) An affected person who is aggrieved by a reviewable decision
2 may apply to the State Administrative Tribunal for a review of
3 the decision.
4 (3) The application must be made within 28 days after the day on
5 which notice of the reviewable decision is given.
6 (4) For the purposes of the State Administrative Tribunal Act 2004
7 section 45(1)(b), each other affected person in relation to the
8 reviewable decision is entitled to a copy of the application.
page 205
Aboriginal Cultural Heritage Bill 2021
Part 12 Review by State Administrative Tribunal
Division 2 Review by State Administrative Tribunal
s. 278
1 (5) Despite the State Administrative Tribunal Act 2004 section 61,
2 the State Administrative Tribunal may --
3 (a) order that the hearing of a review, or any part of the
4 hearing, be held in private; and
5 (b) specify the persons who may be present at the hearing.
6 (6) The State Administrative Tribunal's power to make an order
7 under subsection (5) is exercisable by --
8 (a) a legally qualified member; or
9 (b) if the Tribunal as constituted for a hearing does not
10 consist of or include a legally qualified member, the
11 presiding member.
12 (7) The State Administrative Tribunal may make an order under
13 subsection (5) if the Tribunal considers it necessary to do so.
14 278. Notice of reviewable decisions must be given
15 (1) The decision-maker must give written notice of a reviewable
16 decision within 14 days after the decision is made to each
17 person who is an affected person in relation to the decision.
18 (2) The notice must contain the following --
19 (a) a description of the decision;
20 (b) short particulars of the reasons for the decision;
21 (c) a statement that an affected person who is aggrieved by
22 the decision has a right to apply for a review of the
23 decision under section 277 within 28 days after the day
24 the notice is given.
page 206
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Aboriginal Cultural Heritage Account and Aboriginal Cultural Division 1
Heritage Compensation Fund
s. 279
1 Part 13 -- Miscellaneous
2 Division 1 -- Aboriginal Cultural Heritage Account and
3 Aboriginal Cultural Heritage Compensation Fund
4 Subdivision 1 -- Aboriginal Cultural Heritage Account
5 279. Aboriginal Cultural Heritage Account
6 (1) An account called the Aboriginal Cultural Heritage Account
7 (ACH Account) is established.
8 (2) The ACH Account is an agency special purpose account under
9 the Financial Management Act 2006 section 16(1).
10 (3) The ACH Account must be administered by the CEO.
11 (4) The Treasurer cannot give a direction in relation to the
12 ACH Account under the Financial Management Act 2006
13 section 20(1).
14 (5) There is to be credited to the ACH Account the following --
15 (a) fees and charges paid or recovered under this Act;
16 (b) proceeds from the sale of any seized thing under
17 section 241(4)(b);
18 (c) an amount equal to an uncommitted amount paid to the
19 ACH Council under a condition imposed under
20 section 51(4);
21 (d) any other amounts lawfully received by, or made
22 available for, the purposes of the Account.
23 (6) Money standing to the credit of the ACH Account may be
24 applied for the following purposes --
25 (a) in payment of the costs of the administration and
26 enforcement of this Act, including the remuneration and
27 allowances payable under sections 26(3) and 32;
page 207
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 1 Aboriginal Cultural Heritage Account and Aboriginal Cultural
Heritage Compensation Fund
s. 280
1 (b) in payment of funding to persons designated as a local
2 ACH service under section 51;
3 (c) to proactively assist in the recognition, protection,
4 conservation, preservation and management of
5 Aboriginal cultural heritage, including, if relevant, by
6 developing guidance materials;
7 (d) any other purpose approved by the Minister.
8 Subdivision 2 -- Aboriginal Cultural Heritage Compensation Fund
9 280. Aboriginal Cultural Heritage Compensation Fund
10 (1) An account called the Aboriginal Cultural Heritage
11 Compensation Fund (ACH Compensation Fund) is established.
12 (2) The ACH Compensation Fund is an agency special purpose
13 account under the Financial Management Act 2006
14 section 16(1).
15 (3) The ACH Compensation Fund must be administered by
16 the CEO.
17 (4) The Treasurer cannot give a direction in relation to the ACH
18 Compensation Fund under the Financial Management Act 2006
19 section 20(1).
20 (5) Fines imposed under this Act must be credited to the ACH
21 Compensation Fund.
22 (6) Money standing to the credit of the ACH Compensation fund is
23 to be applied in the payment under section 99 of compensation
24 in respect of Aboriginal cultural heritage to which harm has
25 been caused.
page 208
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Aboriginal Cultural Heritage Account and Aboriginal Cultural Division 1
Heritage Compensation Fund
s. 281
1 Subdivision 3 -- Provisions relating to accounts established under
2 this Division
3 281. Application of Financial Management Act 2006 and Auditor
4 General Act 2006
5 (1) In this section --
6 account means each of the following --
7 (a) the Aboriginal Cultural Heritage Account established
8 under section 279(1);
9 (b) the Aboriginal Cultural Heritage Compensation fund
10 established under section 280(1).
11 (2) The Financial Management Act 2006 and the Auditor General
12 Act 2006 regulating the financial administration, audit and
13 reporting of departments apply to and in relation to each
14 account, other than as provided in sections 279(4) and 280(4).
15 (3) The administration of each account is for the purposes of the
16 Financial Management Act 2006 section 52 to be regarded as a
17 service of the Department.
18 (4) Without limiting the Financial Management Act 2006
19 section 61, the annual report for a financial year prepared under
20 that section by the accountable authority of the Department (the
21 annual report) must contain information about the operation of
22 each account.
23 (5) The annual report must include details of how money standing
24 to the credit of each account was applied during the financial
25 year (if at all).
page 209
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 2 Giving notice
s. 282
1 Division 2 -- Giving notice
2 282. Public notice
3 If public notice of a matter or document is required to be given
4 under this Act, notice of the matter or document must --
5 (a) be published on a website maintained by, or on behalf
6 of, the ACH Council; and
7 (b) if the regulations so provide -- be published in
8 accordance with the regulations.
9 283. Giving notice generally
10 (1) If notice of a document is required or permitted to be given
11 under this Act to a person, the notice may be given by --
12 (a) giving it to the person personally; or
13 (b) leaving it at the person's usual, or last known, place of
14 residence or business; or
15 (c) sending it by prepaid post (including document
16 exchange) addressed to the person --
17 (i) to the address provided by the person for the
18 giving or service of notice; or
19 (ii) if no address is provided as referred to in
20 subparagraph (i) -- to the last known address of
21 the person; or
22 (iii) to an address shown in the rate record kept by a
23 local government under the Local Government
24 Act 1995 as the address for the service of rate
25 notices under that Act on that person;
26 or
27 (d) emailing it to an email address or faxing it to a fax
28 number --
29 (i) provided by the person for the giving or service
30 of notice; or
page 210
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Giving notice Division 2
s. 284
1 (ii) if no email address or fax number is provided as
2 referred to in subparagraph (i) -- to the email
3 address or fax number appearing on recent
4 correspondence addressed by or on behalf of the
5 person to the person or entity giving the notice,
6 or otherwise notified to the person or entity
7 giving the notice, or published by the person to
8 whom the notice is to be given;
9 or
10 (e) communicating it in some other agreed way with the
11 person; or
12 (f) any other manner prescribed, including by electronic
13 means or by publishing a copy of the notice, in
14 accordance with the regulations.
15 (2) The use of a particular method for giving notice to a particular
16 person does not prevent the use of a different method for giving
17 notice to the same person.
18 (3) Notice required to be given to a partnership is taken to have
19 been given to all members of the partnership if it is given to any
20 member of the partnership in accordance with subsection (1).
21 (4) Failure to properly give notice to 1 person does not affect
22 whether or not notice was properly given to another person.
23 (5) This section is in addition to the Interpretation Act 1984
24 sections 75 and 76.
25 284. Giving notice to landholder or occupier of land
26 (1) If notice of a document is required or authorised to be given
27 under this Act to a person because the person is a landholder or
28 an occupier of land, the notice may be addressed to the person
29 by the description of "the landholder" or "the occupier" of the
30 relevant land, describing the relevant land, without further name
31 or description.
page 211
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 2 Giving notice
s. 285
1 (2) If there are 2 or more landholders or occupiers, notice is
2 sufficiently given to all of them if it is given to 1 of them, and is
3 addressed to that 1 with the addition of the words "and others"
4 or "and another", as the case requires.
5 (3) If notice of a document is to be given to a person because the
6 person is a landholder, the notice may be given to the person by
7 addressing the document to the landholder and giving it in
8 accordance with section 283 to the occupier, if any, of the land.
9 (4) If notice of a document is to be given to a person because the
10 person is a landholder or occupier of land, the notice may be
11 given to the person by addressing the document to the person
12 and affixing it to a conspicuous part of the land.
13 (5) Subsections (3) and (4) only apply if it is not practicable to give
14 the notice in any of the ways provided for in section 283 and
15 this Act does not otherwise state how the notice is to be given.
16 285. Giving certain notices
17 (1) If notice of a document is required or permitted to be given
18 under this Act to a landholder, an occupier of land or a
19 knowledge holder for an area and it is not practicable to give the
20 notice in accordance with section 283, the notice may be given
21 by publishing a copy of the document in the prescribed manner.
22 (2) Notice given in accordance with subsection (1) --
23 (a) may be directed to any number of --
24 (i) landholders or occupiers of land; or
25 (ii) knowledge holders for an area;
26 and
27 (b) is taken to be given to --
28 (i) all of the landholders and occupiers of the land
29 specified in the notice; or
30 (ii) all of the knowledge holders for the area
31 specified in the notice.
page 212
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Regulations and guidelines Division 3
s. 286
1 286. Defects in notice
2 Notice of a document is not ineffective, nor is it to be regarded
3 as having been not properly given, only because of an error,
4 misdescription or irregularity in the document or the way it is
5 addressed that is not likely to mislead or does not in fact
6 mislead.
7 Division 3 -- Regulations and guidelines
8 Subdivision 1 -- Regulations
9 287. Regulations
10 (1) The Governor may make regulations prescribing matters --
11 (a) required or permitted by this Act to be prescribed; or
12 (b) necessary or convenient to be prescribed for giving
13 effect to the purposes of this Act.
14 (2) Without limiting subsection (1), the regulations may provide
15 for, prohibit, control, impose requirements in relation to, or
16 otherwise regulate all or any of the matters described in this
17 Subdivision.
18 (3) The regulations may provide that a contravention of a regulation
19 is an offence and provide for a penalty for an offence not
20 exceeding a fine of $10 000.
21 288. Regulations about ACH Council and local ACH services
22 (1) In this section --
23 financial matters includes funding provided under section 51.
24 (2) Regulations may be made about the ACH Council, including the
25 following --
26 (a) nomination, appointment, term of office, resignation and
27 removal from office of members of the Council or of a
28 committee of the Council;
page 213
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 3 Regulations and guidelines
s. 289
1 (b) alternate members of the Council, to deputise for
2 members temporarily unable or unavailable to act;
3 (c) committees of the Council;
4 (d) management of conflicts of interest of members of the
5 Council or of a committee of the Council;
6 (e) meetings and proceedings of the Council, including the
7 following --
8 (i) chairing meetings;
9 (ii) holding remote meetings;
10 (iii) making resolutions without meetings.
11 (3) Regulations may be made about local ACH services, including
12 about reports to be provided by a local ACH service about the
13 following --
14 (a) matters related to the provision of local ACH service
15 functions;
16 (b) financial matters, including the keeping, inspection and
17 auditing of financial records, in compliance with any
18 requirements prescribed.
19 289. Regulations about protected areas
20 Regulations may be made about protected areas, including the
21 following --
22 (a) activities, or classes of activities, that may be carried out
23 in a protected area;
24 (b) the regulation, control or prohibition of the carrying out
25 of an activity, or a class of activities, in a protected area;
26 (c) the erection or placement of notices or signs to identify
27 an area as a protected area and to provide information
28 about the following --
29 (i) regulations referred to in paragraph (a) or (b);
page 214
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Regulations and guidelines Division 3
s. 290
1 (ii) the conditions, if any, to which the protected area
2 order declaring the area as a protected area is
3 subject;
4 (iii) any offence under this Act, or the regulations,
5 that relates to a protected area;
6 (d) the destruction, removal or other interference with a
7 notice or sign erected or placed under paragraph (c).
8 290. Regulations about ACH Directory
9 Regulations may be made about the ACH Directory, including
10 the following --
11 (a) the form and content of the Directory;
12 (b) the placing of information and documents on the
13 Directory;
14 (c) the availability of information and documents on the
15 Directory under section 216;
16 (d) the provision of copies of, and extracts from,
17 information and documents on the Directory that have
18 been made available under this Act.
19 291. Regulations about determining whether information is
20 culturally sensitive information
21 Regulations may be made about procedures for determining
22 whether information is culturally sensitive information for the
23 purposes of this Act, including for the review of a decision
24 about whether or not information is culturally sensitive
25 information.
26 292. Regulations about fees and charges
27 (1) In this section --
28 fee includes charge.
page 215
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 3 Regulations and guidelines
s. 292
1 (2) Regulations may be made about fees to be paid in connection
2 with the following --
3 (a) services provided under this Act;
4 (b) the recovery of costs and expenses incurred in the
5 administration of this Act.
6 (3) Without limiting subsection (2), regulations to which this
7 section applies may be made about the following --
8 (a) prescribing or providing for the determination of fees;
9 (b) the time at which, or the periods for or during which,
10 fees are to be paid;
11 (c) the structure of fees;
12 (d) the basis on which a fee is to be calculated;
13 (e) the person or body who or which is liable to pay a fee;
14 (f) providing that --
15 (i) an application made under this Act is not
16 required to be dealt with until any fee to be
17 submitted in respect of the application has been
18 received; and
19 (ii) an objection made under this Act is not required
20 to be dealt with until any fee to be submitted in
21 respect of the objection has been received;
22 (g) when a fee submitted in respect of an application or
23 objection made under this Act is taken to have been
24 received for the purposes of this Act;
25 (h) interest on unpaid fees;
26 (i) penalties for, and other consequences of, failure to pay
27 fees, late payment of fees or underpayment of fees;
28 (j) recovery of fees.
29 (4) Regulations to which this section applies may prescribe or
30 provide for the determination of a fee that is more than the
page 216
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Regulations and guidelines Division 3
s. 293
1 amount, or an estimate of the amount, needed to allow recovery
2 of expenditure --
3 (a) incurred in connection with the matter in relation to
4 which the fee is charged; or
5 (b) that is relevant to --
6 (i) the scheme or system under which the action to
7 which the fee relates is taken; or
8 (ii) the performance of any function to which the fee
9 relates.
10 (5) Nothing in this section limits the operation of the Interpretation
11 Act 1984 sections 43, 45 and 45A.
12 293. Other regulations
13 Regulations may be made about the following --
14 (a) the manner in which applications under this Act are to
15 be made;
16 (b) the verification of information or documentation,
17 including a requirement for a statutory declaration to be
18 made about a matter;
19 (c) the procedure to be followed by inspectors and
20 Aboriginal inspectors in exercising their powers and
21 performing their functions under Part 10;
22 (d) the preparation of ACH impact statements;
23 (e) any publishing requirements for the giving of public
24 notice of a matter or document;
25 (f) in relation to the giving of notice of documents required
26 or permitted to be given under this Act --
27 (i) the time at which the notice is taken to have been
28 given; and
page 217
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 3 Regulations and guidelines
s. 294
1 (ii) if notice is given by electronic means -- the
2 means of satisfying a requirement under this Act
3 in relation to a document in writing (for example,
4 a requirement that the original of a document be
5 given or that a document be signed).
6 Subdivision 2 -- Guidelines
7 294. Guidelines
8 Guidelines may be made under this Subdivision about the
9 following --
10 (a) the undertaking of a due diligence assessment for a
11 proposed activity (the ACH Management Code);
12 (b) the carrying out of consultation for the purposes of this
13 Act (the consultation guidelines);
14 (c) the identification of persons who are knowledge holders
15 for an area (the knowledge holder guidelines);
16 (d) the fee structure for the fees to be charged for services
17 provided in connection with the provision of local ACH
18 service functions (the local ACH service (fees)
19 guidelines);
20 (e) the factors to be considered in determining whether
21 Aboriginal cultural heritage is of outstanding
22 significance for the purposes of this Act (the protected
23 area order guidelines);
24 (f) the factors to be considered in determining under
25 section 176(1)(b) whether Aboriginal cultural heritage is
26 of State significance for the purposes of this Act (the
27 State significance guidelines).
28 295. Preparation of guidelines
29 The ACH Council may, with the approval or on the direction of
30 the Minister, prepare proposed guidelines.
page 218
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
Regulations and guidelines Division 3
s. 296
1 296. Consultation on proposed guidelines
2 (1) The ACH Council must give public notice of proposed
3 guidelines that the Council has prepared.
4 (2) The notice must include the following --
5 (a) a brief description of the contents of the proposed
6 guidelines;
7 (b) details of where and how a copy of the proposed
8 guidelines can be obtained or viewed;
9 (c) provision of an opportunity to make submissions to the
10 ACH Council within 60 days after the notice is given
11 about any provision in the proposed guidelines.
12 (3) The ACH Council must inform the following persons that
13 public notice about proposed guidelines has been given under
14 subsection (1) --
15 (a) each local ACH service for an area in the State;
16 (b) each native title party for an area in the State;
17 (c) each native title representative body in the State;
18 (d) any public authority that the Council considers may
19 have an interest in the proposed guidelines;
20 (e) any peak industry body that the Council considers may
21 have an interest in the proposed guidelines;
22 (f) any other person the Council considers has an interest in
23 the guidelines.
24 (4) The ACH Council --
25 (a) must consider any submissions made in response to the
26 notice given under subsection (1); and
27 (b) may modify the proposed guidelines as it thinks fit.
page 219
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 3 Regulations and guidelines
s. 297
1 297. Approval of Minister
2 The Minister may approve proposed guidelines prepared by the
3 ACH Council with or without any modifications that the
4 Minister thinks fit.
5 298. Provisions about guidelines
6 (1) The ACH Council must cause a copy of any guidelines
7 approved by the Minister under section 297 to be published in
8 the Gazette.
9 (2) Guidelines come into effect --
10 (a) on the day on which they are published in the Gazette;
11 or
12 (b) on a later day specified in the guidelines.
13 (3) Guidelines are not subsidiary legislation for the purposes of the
14 Interpretation Act 1984.
15 (4) The Interpretation Act 1984 sections 43 (other than
16 subsections (4) and (6)), 44 and 56 and Part VIII apply to
17 guidelines as if they were subsidiary legislation.
18 299. Amending or repealing guidelines
19 (1) The ACH Council may, with the approval or on the direction of
20 the Minister, amend guidelines.
21 (2) Sections 296, 297 and 298 apply, with such modifications as are
22 necessary, to and in relation to an amendment as if the
23 amendment were guidelines.
24 (3) Guidelines may be repealed by --
25 (a) subsequent guidelines; or
26 (b) an instrument of repeal --
27 (i) made by the ACH Council with the approval or
28 on the direction of the Minister; and
page 220
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
General provisions Division 4
s. 300
1 (ii) approved by the Minister and published in the
2 Gazette.
3 Division 4 -- General provisions
4 300. No circumventing or contracting out
5 (1) For the purposes of this Act, a term of a contract or other
6 agreement that purports to do, or has the effect of doing, any of
7 the following is of no effect --
8 (a) exclude, limit or modify the operation of this Act;
9 (b) exclude, limit or modify any duty owed under this Act;
10 (c) transfer to another person any duty owed under this Act.
11 Note for this subsection:
12 The transfer of an ACH permit by the holder of the permit to another
13 person referred to in section 127, or a change to a party to an
14 approved or authorised ACH management plan referred to in
15 section 171, is not the transfer to another person of a duty owed under
16 this Act as described in subsection (1)(c).
17 (2) A purported waiver, limitation or modification of a right,
18 remedy or benefit conferred on a person under this Act is of no
19 effect.
20 301. Delegation by Minister
21 (1) The Minister may delegate any power or duty of the Minister
22 under another provision of this Act, other than any power or
23 duty under a provision listed in the Table, to any of the
24 following --
25 (a) the ACH Council;
26 (b) the CEO;
27 (c) a person employed or engaged in the Department.
page 221
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 4 General provisions
s. 302
1 Table
s. 21(1) s. 27(1)
s. 32 s. 43(2)
s. 78(4) and (5) s. 81(1)
s. 131(6) s. 154(1)(b)
s. 155(4) s. 165(1)
s. 168(1) s. 170
s. 180(1) s. 182(1)
s. 188(1) s. 191(1)
s. 194(1) s. 203(1)
2 (2) A delegation must be in writing signed by the Minister.
3 (3) A person or body to whom or which a power or duty is
4 delegated under this section cannot delegate that power or duty.
5 (4) A person or body exercising or performing a power or duty that
6 has been delegated to the person or body under this section is
7 taken to do so in accordance with the terms of the delegation
8 unless the contrary is shown.
9 (5) This section does not limit the ability of the Minister to perform
10 a function through an officer or agent.
11 302. Delegation by CEO
12 (1) The CEO may delegate any power or duty of the CEO under
13 another provision of this Act, other than any power or duty
14 under a provision listed in the Table, to a person employed or
15 engaged in the Department.
page 222
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
General provisions Division 4
s. 303
1 Table
s. 51(1) s. 99(1)
s. 104(3)
2 (2) A delegation must be in writing signed by the CEO.
3 (3) A person to whom a power or duty is delegated under this
4 section cannot delegate that power or duty.
5 (4) A person exercising or performing a power or duty that has been
6 delegated to the person under this section is taken to do so in
7 accordance with the terms of the delegation unless the contrary
8 is shown.
9 (5) This section does not limit the ability of the CEO to perform a
10 function through an officer or agent.
11 303. CEO may disclose information
12 (1) In this section --
13 authorised officer means an officer designated under
14 subsection (2);
15 officer, in relation to a prescribed entity, means --
16 (a) an officer or person employed by or in --
17 (i) the prescribed entity; or
18 (ii) the Public Service of the State;
19 or
20 (b) if the prescribed entity is the Police Force -- a police
21 officer;
22 Police Force means the Police Force of Western Australia
23 provided for by the Police Act 1892;
24 prescribed entity means any of the following --
25 (a) a public authority;
26 (b) a body or person prescribed;
page 223
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 4 General provisions
s. 303
1 protocol means a protocol established under subsection (3);
2 relevant information, in relation to a prescribed entity --
3 (a) means information relevant to the performance by the
4 prescribed entity of a function of the prescribed entity
5 under a written law; and
6 (b) includes culturally sensitive information.
7 (2) The CEO may designate an officer of the Department as an
8 authorised officer for the purposes of this section.
9 (3) The CEO must establish protocols for the disclosure of relevant
10 information under subsection (4).
11 (4) An authorised officer may, in accordance with the protocols,
12 and any regulations, disclose relevant information for a
13 prescribed entity to an officer of the prescribed entity.
14 (5) If relevant information is disclosed, in good faith, under
15 subsection (4) --
16 (a) no civil or criminal liability is incurred in respect of the
17 disclosure; and
18 (b) the disclosure is not to be regarded as --
19 (i) a breach of any duty of confidentiality or secrecy
20 imposed by law; or
21 (ii) a breach of professional ethics or standards or
22 any principles of conduct applicable to a
23 person's employment; or
24 (iii) unprofessional conduct.
25 (6) The regulations may make provision for and in relation to --
26 (a) the circumstances in which relevant information may be
27 disclosed under subsection (4); and
28 (b) the receipt and storage of relevant information disclosed
29 under subsection (4), including --
30 (i) the period for which the information may be
31 stored; and
page 224
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
General provisions Division 4
s. 304
1 (ii) how it is to be disposed of;
2 and
3 (c) the conditions subject to which relevant information
4 may be disclosed under subsection (4); and
5 (d) the restriction of access to relevant information
6 disclosed under subsection (4).
7 304. Giving false or misleading information
8 (1) A person must not do anything described in subsection (2) --
9 (a) in, or in connection with, an application made or a
10 notice or other document given under this Act; or
11 (b) in compliance, or purported compliance, with a
12 requirement, direction or request under this Act; or
13 (c) for any other purpose under this Act.
14 Penalty for this subsection: a fine of $20 000.
15 (2) The things to which subsection (1) applies are as follows --
16 (a) making a statement knowing it to be false or misleading
17 in a material particular;
18 (b) omitting from a statement made anything without which
19 the statement is, to the person's knowledge, misleading
20 in a material particular;
21 (c) giving information that --
22 (i) the person knows is false or misleading in a
23 material particular; or
24 (ii) omits anything without which the information is,
25 to the person's knowledge, misleading in a
26 material particular.
27 305. Protection from liability for wrongdoing
28 (1) An action in tort does not lie against a person for anything that
29 the person has done, in good faith, in the performance or
30 purported performance of a function under this Act.
page 225
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 4 General provisions
s. 306
1 (2) The State is also relieved of any liability that it might otherwise
2 have had for another person having done anything as described
3 in subsection (1).
4 (3) The protection given by this section applies even though the
5 thing done as described in subsection (1) may have been
6 capable of being done whether or not this Act had been enacted.
7 (4) In this section, a reference to the doing of anything includes a
8 reference to an omission to do anything.
9 306. Confidentiality
10 (1) A person must not, directly or indirectly, record, disclose or
11 make use of any information obtained by reason of a function
12 that the person has, or at any time had, in the administration of
13 this Act except --
14 (a) for the purpose of, or in connection with, performing a
15 function under this Act; or
16 (b) as required or allowed under this Act or another written
17 law; or
18 (c) for the purposes of any legal proceedings arising under
19 this Act; or
20 (d) with the written consent of the person to whom the
21 information relates; or
22 (e) in other circumstances, if any, prescribed for the
23 purposes of this paragraph.
24 Penalty for this subsection: a fine of $20 000.
25 (2) Information relating to trade processes or financial information,
26 or culturally sensitive information, that has been disclosed under
27 subsection (1) for a particular purpose must not be used for any
28 other purpose by --
29 (a) the person to whom the information is disclosed; or
page 226
Aboriginal Cultural Heritage Bill 2021
Miscellaneous Part 13
General provisions Division 4
s. 307
1 (b) any other person who gains access to the information
2 (whether properly or improperly and whether directly or
3 indirectly) as a result of that disclosure.
4 Penalty for this subsection: a fine of $20 000.
5 (3) Subsection (1) does not extend to the recording, disclosure or
6 use of --
7 (a) statistical or other information that could not reasonably
8 be expected to lead to the identification of any person to
9 whom it relates; or
10 (b) information that is already in the public domain.
11 307. CEO may approve forms
12 The CEO may approve forms for use under this Act.
13 308. Laying documents before House of Parliament not sitting
14 (1) This section applies if --
15 (a) a provision of this Act requires the Minister to cause a
16 document to be laid before each House of Parliament, or
17 dealt with under this section, within a specified period;
18 and
19 (b) at the beginning of the period, a House of Parliament is
20 not sitting; and
21 (c) in the Minister's opinion, the House will not sit before
22 the end of the period.
23 (2) The Minister must send the document to the Clerk of the House
24 before the end of the period.
25 (3) When the document is sent to the Clerk of the House it is taken
26 to have been laid before the House.
27 (4) The laying of the document that is taken to have occurred under
28 subsection (3) must be recorded in the Minutes, or Votes and
29 Proceedings, of the House on the first sitting day of the House
30 after the Clerk receives the document.
page 227
Aboriginal Cultural Heritage Bill 2021
Part 13 Miscellaneous
Division 4 General provisions
s. 309
1 309. Review of Act
2 (1) The Minister must review the operation and effectiveness of this
3 Act, and prepare a report based on the review as soon as
4 practicable --
5 (a) after the 5th anniversary of the day on which this section
6 comes into operation; and
7 (b) after that, at intervals of not more than 5 years.
8 (2) The Minister must cause each report to be laid before each
9 House of Parliament, or dealt with under section 308, as soon as
10 practicable after it is prepared, but not later than 12 months after
11 the requirement to carry out the review arose.
page 228
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Repeals Division 1
s. 310
1 Part 14 -- Repeals and transitional matters
2 Division 1 -- Repeals
3 310. Aboriginal Heritage Act 1972 repealed
4 The Aboriginal Heritage Act 1972 is repealed.
5 311. Aboriginal Heritage Regulations 1974 repealed
6 The Aboriginal Heritage Regulations 1974 are repealed.
7 312. Aboriginal Heritage (Marandoo) Act 1992 repealed
8 The Aboriginal Heritage (Marandoo) Act 1992 is repealed.
9 Division 2 -- Transitional provisions arising from the
10 enactment of the Aboriginal Cultural Heritage Act 2021
11 Subdivision 1 -- Interpretation
12 313. Terms used
13 In this Division --
14 ACMC means the Committee as defined in the AH Act
15 section 4;
16 AH Act means the Aboriginal Heritage Act 1972;
17 AH Act section 18 consent means a consent given under the
18 AH Act section 18;
19 historical AH Act section 18 consent means an AH Act
20 section 18 consent that is not a transitional AH Act section 18
21 consent;
22 transitional AH Act section 18 consent means an AH Act
23 section 18 consent the notice for which was given to the ACMC
24 under the AH Act section 18(2) during the transitional period;
page 229
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 314
1 transitional period means the period --
2 (a) beginning on the day on which Part 15 Division 2 comes
3 into operation; and
4 (b) ending immediately before transition day;
5 transitional regulations has the meaning given in
6 section 336(1).
7 Subdivision 2 -- Protected areas
8 314. Terms used
9 In this Subdivision --
10 Aboriginal site has the meaning given in the AH Act section 4;
11 AH Act protected area order means an order --
12 (a) made under the AH Act section 19(4) declaring an
13 Aboriginal site to be a protected area; and
14 (b) that is of effect immediately before transition day;
15 former protected area order means the following --
16 (a) an AH Act protected area order;
17 (b) an historical protected area order;
18 historical protected area order has the meaning given in
19 section 315(1).
20 315. Historical protected area orders
21 (1) The Governor may, by order published in the Gazette before
22 transition day, declare an area as a protected area (an historical
23 protected area order).
24 (2) An historical protected area order is to be made on the
25 recommendation of the Minister under subsection (3).
26 (3) The Minister may, on the Minister's own initiative, recommend
27 to the Governor that the Governor declare an area as a protected
28 area under subsection (1) if the area relates to an Aboriginal site
29 declared to be a protected area under an order made, or
page 230
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 316
1 purportedly made, under the AH Act section 19(4) before assent
2 day.
3 (4) An historical protected area order can declare that the protected
4 area comprises several areas that are not contiguous.
5 (5) An historical protected area order must --
6 (a) provide a name for the protected area; and
7 (b) describe the boundaries of the protected area in a
8 manner sufficient to identify it; and
9 (c) state that Aboriginal cultural heritage of outstanding
10 significance for the purposes of this Act is located in the
11 protected area; and
12 (d) state the conditions, if any, to which the declaration of
13 the area, or areas, as a protected area is subject.
14 (6) Section 86(2) to (4) applies in respect of an historical protected
15 area order as if it were a protected area order.
16 (7) An historical protected area order comes into effect immediately
17 before transition day.
18 316. Continuation of former protected area orders
19 (1) On and after transition day, a former protected area order has
20 effect as if it were a protected area order made under
21 section 82(1).
22 (2) Section 87 applies on and after transition day in respect of a
23 former protected area order and for that purpose --
24 (a) a former protected area order is taken to have been made
25 under section 82(1) on transition day; and
26 (b) the CEO must comply with section 87 in relation to a
27 former protected area order unless the Registrar, as
28 defined in section 87(1), confirms that adequate notice
29 for the purposes of section 87 has already been given in
30 relation to the protected area to which the order relates.
page 231
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 317
1 (3) Immediately before transition day, the exclusive right provided
2 under the AH Act section 22(1) to the occupation and use of
3 every place that is declared to be a protected area under an AH
4 Act protected area order ceases to be vested in the Minister on
5 behalf of the Crown.
6 317. Conditions on former protected area orders
7 (1) The Governor may by order made on a recommendation of the
8 Minister under subsection (2), amend a former protected area
9 order, that has effect as if it were a protected area order made
10 under section 82(1), to provide for the imposition of a condition,
11 or conditions.
12 (2) The Minister may, on the Minister's own initiative, recommend
13 to the Governor that the Governor make an order amending a
14 former protected area order to provide for the imposition of a
15 condition, or conditions, to which the order is to be subject,
16 relating to anything to which a condition may relate under
17 section 81(4).
18 (3) Sections 86 and 87 apply in relation to an order made under
19 subsection (1) as if it were a protected area order made under
20 section 82(1).
21 (4) An order under subsection (1) must be made within the period
22 of 2 years beginning on transition day.
23 Subdivision 3 -- AH Act section 18 consents and AH Act approvals
24 318. Terms used
25 In this Subdivision --
26 Aboriginal party has the meaning given in section 100;
27 AH Act approval means --
28 (a) an authorisation under the AH Act section 16(2); or
29 (b) an approval referred to in the Aboriginal Heritage
30 Regulations 1974 regulation 7; or
page 232
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 319
1 (c) a consent referred to in the Aboriginal Heritage
2 Regulations 1974 regulation 10;
3 authorised ACH management plan means an
4 ACH management plan that has been authorised under
5 section 165(1)(b)(i);
6 no longer in force --
7 (a) in relation to an AH Act section 18 consent -- has the
8 meaning given in section 319; or
9 (b) in relation to an AH Act approval -- has the meaning
10 given in section 320;
11 owner, in relation to land the subject of an AH Act section 18
12 consent, means the person to whom the consent was given under
13 the AH Act section 18.
14 319. AH Act section 18 consents no longer in force
15 An AH Act section 18 consent is no longer in force and has no
16 further effect --
17 (a) if the consent has expired in accordance with its terms,
18 the AH Act or this Act, as is relevant; or
19 (b) if the purpose specified in the consent has been
20 achieved; or
21 (c) if the owner of the land the subject of the consent cannot
22 be identified or found, or no longer exists; or
23 (d) if the owner of the land the subject of the consent has
24 voluntarily surrendered the consent to the Minister; or
25 (e) if the consent is an historical AH Act section 18 consent
26 that has expired in accordance with section 325(1).
27 320. AH Act approvals no longer in force
28 An AH Act approval is no longer in force and has no further
29 effect --
30 (a) if the approval has expired in accordance with its terms;
31 or
page 233
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 321
1 (b) if the purpose for which the approval was given has
2 been achieved or the activities to which the approval
3 relates have been completed; or
4 (c) if the person to whom the approval was given cannot be
5 identified, or found or no longer exists; or
6 (d) if the person to whom the approval was given has
7 voluntarily surrendered the approval to the Minister.
8 321. AH Act section 18 consents taken to be authorised ACH
9 management plans in some circumstances
10 (1) On and after transition day, an AH Act section 18 consent is
11 taken to be an authorised ACH management plan in the
12 following circumstances only --
13 (a) in relation to protected area orders under Part 4 -- for
14 the purposes of sections 72(2)(e) and (4), 79(4)(c),
15 81(3)(b) and 169(3);
16 (b) in relation to ACH management plans under Part 6
17 Division 6 -- for the purposes of sections 171(4)(b)
18 and (5), 172(b)(ii) and 173;
19 (c) in relation to Part 7 orders and only if the AH Act
20 section 18 consent is a transitional AH Act section 18
21 consent -- for the purposes of sections 180(3)(b)
22 and 185(3)(b);
23 (d) in relation to the ACH Directory under Part 9 -- for the
24 purposes of sections 213(1)(h) and 218(d)(ii) and (h);
25 (e) in relation to securing compliance with this Act under
26 Part 10 -- for the purposes of Part 10;
27 (f) in relation to legal proceedings under Part 11 -- for the
28 purposes of Part 11;
29 (g) in relation to miscellaneous provisions under Part 13 --
30 for the purposes of Part 13.
page 234
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 321
1 (2) For the purposes of giving effect to subsection (1) --
2 (a) the owner of land the subject of an AH Act section 18
3 consent, taken under subsection (1) to be an authorised
4 ACH management plan, is taken to be the proponent for
5 the activity to which the plan relates, subject to the
6 application of section 175(5); and
7 (b) an AH Act section 18 consent, taken under
8 subsection (1) to be an authorised ACH management
9 plan, is taken --
10 (i) not to have any Aboriginal party; and
11 (ii) to be subject to the same conditions, if any, as
12 the AH Act section 18 consent is subject.
13 (3) For the purposes of giving effect to subsection (1)(c) --
14 new information about Aboriginal cultural heritage, in
15 relation to an area of land to which a transitional AH Act
16 section 18 consent (taken under subsection (1) to be an
17 authorised ACH management plan) relates, means information
18 not identified to the Minister or the ACMC (whether in the
19 notice given to the ACMC under the AH Act section 18(2) in
20 relation to the consent or otherwise) before the consent was
21 given, about --
22 (a) Aboriginal cultural heritage located in the area; or
23 (b) the characteristics of Aboriginal cultural heritage located
24 in the area.
25 (4) If an AH Act section 18 consent --
26 (a) is no longer in force on transition day -- subsection (1)
27 does not apply in relation to the consent; or
28 (b) becomes no longer in force at any time after transition
29 day -- subsection (1) ceases to apply in relation to the
30 consent at that time.
page 235
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 322
1 322. AH Act section 18 consents taken to be authorisation under
2 Part 6 Division 4 in some circumstances
3 (1) On and after transition day, an activity being carried out in
4 accordance with an AH Act section 18 consent is taken to be an
5 activity that is authorised under Part 6 Division 4 in the
6 following circumstances only --
7 (a) in relation to providing a defence to a charge of an
8 offence under Part 3 Division 2 -- for the purposes of
9 section 61(3)(a)(i);
10 (b) in relation to a defence to a charge of an offence under
11 Part 5 Division 2 -- for the purposes of section 96;
12 (c) in relation to Part 7 orders -- for the purposes of
13 sections 180(3)(a)(i) and 185(3)(a)(i);
14 (d) in relation to liability of principals for offences under
15 this Act by agents -- for the purposes of
16 section 267(2)(a).
17 (2) If an AH Act section 18 consent --
18 (a) is no longer in force on transition day -- subsection (1)
19 does not apply in relation to the consent; or
20 (b) becomes no longer in force at any time after transition
21 day -- subsection (1) ceases to apply in relation to the
22 consent at that time.
23 323. AH Act approvals taken to be ACH permits in some
24 circumstances
25 (1) On and after transition day, an AH Act approval is taken to be
26 an ACH permit in the following circumstances only --
27 (a) in relation to a protected area order under Part 4 -- for
28 the purposes of sections 72(2)(d) and (3), 79(4)(c),
29 81(3)(a) and 129(1);
30 (b) in relation to the contravention of conditions under
31 Part 6 Division 5 -- for the purposes of section 133;
page 236
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 324
1 (c) in relation to the ACH Directory under Part 9 -- for the
2 purposes of sections 213(1)(f) and 218(d)(i) and (g);
3 (d) in relation to securing compliance with this Act under
4 Part 10 -- for the purposes of Part 10;
5 (e) in relation to legal proceedings under Part 11 -- for the
6 purposes of Part 11;
7 (f) in relation to miscellaneous provisions under Part 13 --
8 for the purposes of Part 13.
9 (2) For the purposes of giving effect to subsection (1) --
10 (a) the person who was given an AH Act approval, taken
11 under subsection (1) to be an ACH permit, is taken to be
12 the holder of the ACH permit; and
13 (b) an AH Act approval, taken under subsection (1) to be an
14 ACH permit, is taken to be subject to the same
15 conditions, if any, as the AH Act approval is subject.
16 (3) If an AH Act approval --
17 (a) is no longer in force on transition day -- subsection (1)
18 does not apply in relation to the approval; or
19 (b) becomes no longer in force at any time after transition
20 day -- subsection (1) ceases to apply in relation to the
21 approval at that time.
22 324. AH Act approvals taken to be authorisation under Part 6
23 Division 4 in some circumstances
24 (1) On and after transition day, an activity being carried out in
25 accordance with an AH Act approval is taken to be an activity
26 that is authorised under Part 6 Division 4 in the following
27 circumstances only --
28 (a) in relation to providing a defence to a charge of an
29 offence under Part 3 Division 2 -- for the purposes of
30 section 61(3)(a)(i);
31 (b) in relation to a defence to a charge of an offence under
32 Part 5 Division 2 -- for the purposes of section 96;
page 237
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 325
1 (c) in relation to Part 7 orders -- for the purposes of
2 sections 180(3)(a)(i) and 185(3)(a)(i);
3 (d) in relation to liability of principals for offences by
4 agents -- for the purposes of section 267(2)(a).
5 (2) If an AH Act approval --
6 (a) is no longer in force on transition day -- subsection (1)
7 does not apply in relation to the approval; or
8 (b) becomes no longer in force at any time after transition
9 day -- subsection (1) ceases to apply in relation to the
10 approval at that time.
11 325. Expiry of historical AH Act section 18 consents
12 (1) An historical AH Act section 18 consent expires at the end of
13 the period of 10 years beginning on transition day (expiry day)
14 unless --
15 (a) it is no longer in force on expiry day; or
16 (b) subsection (2) applies.
17 (2) An historical AH Act section 18 consent does not expire under
18 subsection (1) if --
19 (a) an application in relation to the consent has been made
20 to the Minister no later than 12 months before expiry
21 day; and
22 (b) the Minister makes a decision in accordance with
23 subsection (3) that the consent the subject of the
24 application will not expire on expiry day; and
25 (c) the Minister gives the owner of the land the subject of
26 the consent written notice of that decision before expiry
27 day.
28 (3) A decision under subsection (2)(b) can only be made if the
29 Minister forms the opinion that the purpose for which the land
30 the subject of the consent may be used, as specified in the
31 consent, has been substantially commenced.
page 238
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 326
1 (4) Transitional regulations may be made about --
2 (a) the manner in which applications referred to in
3 subsection (2)(a) may be made; and
4 (b) the criteria to apply under subsection (3) in determining
5 whether the purpose for which land the subject of an
6 historical AH Act section 18 consent may be used, as
7 specified in the consent, has been substantially
8 commenced; and
9 (c) the giving of notice, including the persons to be notified,
10 about decisions made under subsection (2)(b).
11 (5) A decision by the Minister under subsection (2)(b) can be
12 delegated under section 301 only to the ACH Council.
13 326. Extension of duration of transitional AH Act section 18
14 consents
15 (1) The duration of a transitional AH Act section 18 consent that
16 would otherwise expire in accordance with its terms or the
17 AH Act, as is relevant, may be extended as set out in
18 subsections (2) and (4).
19 (2) A transitional AH Act section 18 consent does not expire in
20 accordance with its terms or the AH Act, as is relevant, if --
21 (a) an application in relation to the consent has been made
22 to the Minister no later than 12 months before the
23 consent would otherwise expire; and
24 (b) the Minister makes a decision in accordance with
25 subsection (3) that the duration of the consent will be
26 extended in accordance with subsection (4); and
27 (c) the Minister gives written notice of that decision to the
28 owner of the land the subject of the consent before the
29 consent would otherwise expire.
30 (3) A decision under subsection (2)(b) can only be made if the
31 Minister forms the opinion that the purpose for which the land
page 239
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 327
1 the subject of the consent may be used, as specified in the
2 consent, is a State significant project.
3 (4) The duration of a transitional AH Act section 18 consent may be
4 extended --
5 (a) on only one occasion; and
6 (b) for --
7 (i) a period of 5 years beginning immediately after
8 the consent would otherwise expire; or
9 (ii) any shorter period specified in writing by the
10 Minister.
11 (5) Transitional regulations may be made as to --
12 (a) the manner in which applications referred to in
13 subsection (2)(a) may be made; and
14 (b) the criteria to apply under subsection (3) in determining
15 whether the purpose for which the land the subject of a
16 transitional AH Act section 18 consent may be used, as
17 specified in the consent, is a State significant project;
18 and
19 (c) the giving of notice, including the persons to be notified,
20 about decisions made under subsection (2)(b).
21 (6) A decision by the Minister under subsection (2)(b) cannot be
22 delegated under section 301.
23 Subdivision 4 -- Marandoo Act area
24 327. Terms used
25 In this Subdivision --
26 Marandoo Act area means the land described in the Aboriginal
27 Heritage (Marandoo) Act 1992 Schedule 1 Part 1, Schedule 2
28 Part 1 and Schedule 3 Part 1 immediately before transition day;
page 240
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 328
1 owner, in relation to the specified land, means a person who,
2 immediately before transition day, is using the specified land for
3 the specified purpose;
4 reduced area means the area of land approved by the Minister
5 by order under section 329(1);
6 specified land means --
7 (a) the reduced area; or
8 (b) the Marandoo Act area if, immediately before transition
9 day, there is no reduced area;
10 specified purpose means undertaking any activity for and
11 incidental to the exploration, mining, processing and
12 transporting of iron ore, including, but not limited to, the
13 construction, operation and maintenance of railways, power
14 lines, roads and other associated infrastructure.
15 328. Historical AH Act section 18 consent taken to be held
16 (1) The owner of specified land is taken, immediately before
17 transition day, to hold an historical AH Act section 18 consent
18 to use the specified land for the specified purpose (the historical
19 AH Act section 18 consent).
20 (2) For the purposes of the application of Subdivision 3 to the
21 historical AH Act section 18 consent --
22 (a) the historical AH Act section 18 consent is taken to have
23 been given to the owner under the AH Act section 18;
24 and
25 (b) the specified land is taken --
26 (i) to be the land the subject of the historical AH
27 Act section 18 consent; and
28 (ii) to be specified in the consent;
29 and
page 241
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 329
1 (c) the specified purpose is taken --
2 (i) to be the purpose for which the land the subject
3 of the historical AH Act section 18 consent may
4 be used; and
5 (ii) to be specified in the consent.
6 329. Minister may approve reduced area
7 (1) The Minister may, by order published in the Gazette before
8 transition day, approve an area of land that is part of the
9 Marandoo Act area as the reduced area.
10 (2) Before an order is made under subsection (1), the Minister must
11 consult as to the area that is to comprise the reduced area
12 with --
13 (a) the person who is using the Marandoo Act area for the
14 specified purpose at the time of the consultation; and
15 (b) the persons to be consulted under Part 6 were a
16 proponent intending to carry out a tier 3 activity in the
17 specified area.
18 (3) The reduced area can comprise several areas of the Marandoo
19 Act area that are not contiguous.
20 (4) An order made under subsection (1) takes effect immediately
21 before transition day.
22 (5) The Minister may, by order published in the Gazette, amend or
23 repeal an order made under subsection (1), but only --
24 (a) before transition day; and
25 (b) after the persons to be consulted under subsection (2)
26 have been consulted about the effect of the proposed
27 amendment or repeal.
page 242
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 330
1 330. Purported section 18 consents are of no effect
2 (1) On and after transition day, a purported section 18 consent is
3 not a valid AH Act section 18 consent and is of no force or
4 effect.
5 (2) In subsection (1) --
6 purported section 18 consent means a consent given, or
7 purportedly given, under the AH Act section 18 --
8 (a) before the commencement of the Aboriginal Heritage
9 (Marandoo) Act 1992; and
10 (b) to use any of the Marandoo Act area for any purpose.
11 Subdivision 5 -- Other matters
12 331. Information and documents on former register transferred
13 to ACH Directory
14 On transition day, all of the information and documents that
15 were, immediately before that day, recorded in the register
16 maintained under the AH Act section 38 must be transferred to
17 and included on the ACH Directory.
18 332. Unfinished business
19 (1) On and after transition day, the Minister under the AH Act
20 continues in existence for the purposes of dealing with and
21 finalising any proceedings commenced by or against the ACMC
22 or the Minister before that day.
23 (2) While the Minister under the AH Act continues in existence
24 under subsection (1), the Minister has the powers to do any act
25 that the Minister considers necessary or expedient to do for the
26 purpose for which the Minister is continued in existence.
27 (3) This section applies despite the amendment and repeal of the
28 AH Act by this Act.
page 243
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 333
1 333. ACMC abolished
2 On repeal day --
3 (a) the ACMC, as in existence immediately before that day,
4 is abolished; and
5 (b) a person who, immediately before that day, was a
6 member of the ACMC ceases to be a member; and
7 (c) the records of the ACMC are taken to be the records of
8 the ACH Council.
9 334. Completion of things commenced
10 Subject to section 332, anything commenced by the ACMC
11 before repeal day may be continued by the ACH Council on and
12 after that day, to the extent to which the doing of that thing is
13 within the functions of the Council.
14 335. References to Aboriginal Heritage Act 1972
15 If a written law or document refers to the Aboriginal Heritage
16 Act 1972 the reference is taken, if the context permits, to be a
17 reference to --
18 (a) on and after transition day and before repeal day -- the
19 Aboriginal Heritage Act 1972 or the Aboriginal Cultural
20 Heritage Act 2021, or both, as appropriate; and
21 (b) on and after repeal day -- the Aboriginal Cultural
22 Heritage Act 2021.
23 336. Transitional regulations
24 (1) In this regulation --
25 publication day, for transitional regulations, means the day on
26 which those regulations are published in the Gazette;
27 specified means specified or described in transitional
28 regulations;
page 244
Aboriginal Cultural Heritage Bill 2021
Repeals and transitional matters Part 14
Transitional provisions arising from the enactment of the Division 2
Aboriginal Cultural Heritage Act 2021
s. 336
1 transitional matter --
2 (a) means a matter of a transitional nature that arises as a
3 result of --
4 (i) the enactment of this Act; or
5 (ii) the repeal of a written law under Part 14
6 Division 1; or
7 (iii) the amendment of a written law under Part 15
8 or 16;
9 and
10 (b) includes a saving or application matter;
11 transitional regulations means regulations made under
12 subsection (2).
13 (2) If there is no sufficient provision in this Act for dealing with a
14 transitional matter, the Governor may make regulations
15 prescribing matters --
16 (a) required to be prescribed for the purpose of dealing with
17 the transitional matter; or
18 (b) necessary or convenient to be prescribed for the purpose
19 of dealing with the transitional matter.
20 (3) Transitional regulations may provide that specified provisions
21 of this Act or another written law --
22 (a) do not apply to, or in relation to, a specified matter or
23 thing; or
24 (b) apply with specified modifications to, or in relation to, a
25 specified matter or thing.
26 (4) If transitional regulations provide that a specified state of affairs
27 is taken to have existed, or not to have existed, on and after a
28 day that is earlier than publication day but not earlier than assent
29 day, the regulations have effect according to their terms.
page 245
Aboriginal Cultural Heritage Bill 2021
Part 14 Repeals and transitional matters
Division 2 Transitional provisions arising from the enactment of the
Aboriginal Cultural Heritage Act 2021
s. 337
1 (5) If transitional regulations contain a provision referred to in
2 subsection (4), the provision does not operate so as to --
3 (a) affect in a manner prejudicial to a person (other than the
4 State or an authority of the State) the rights of that
5 person existing before publication day for the
6 regulations; or
7 (b) impose liabilities on a person (other than the State or an
8 authority of the State) in respect of an act done or an
9 omission made before publication day for the
10 regulations.
11 337. Interpretation Act 1984 not affected
12 Except to the extent that this Part or regulations made under
13 section 336 expressly provide differently, the Interpretation
14 Act 1984 applies in relation to the repeal of a written law
15 referred to in Division 1.
page 246
Aboriginal Cultural Heritage Bill 2021
Aboriginal Heritage Act 1972 amended Part 15
Act amended Division 1
s. 338
1 Part 15 -- Aboriginal Heritage Act 1972 amended
2 Division 1 -- Act amended
3 338. Aboriginal Heritage Act 1972 amended
4 This Part amends the Aboriginal Heritage Act 1972.
5 Division 2 -- Amendments commencing on day after assent day
6 339. Section 4 amended
7 (1) In section 4 insert in alphabetical order:
8
9 transition day has the meaning given in the Aboriginal
10 Cultural Heritage Act 2021 section 11.
11
12 (2) In section 4 in the definition of traditional custodian delete
13 "section 9." and insert:
14
15 section 9;
16
17 340. Section 18 amended
18 After section 18(5) insert:
19
20 (6) If the owner of any land gives notice to the Committee
21 under subsection (2) during the transitional period and
22 the Minister gives consent under subsection (3)(a) in
23 relation to the notice, it is a condition of the consent
24 that --
25 (a) the consent --
26 (i) takes effect on the day after the day on
27 which the owner is informed of the
page 247
Aboriginal Cultural Heritage Bill 2021
Part 15 Aboriginal Heritage Act 1972 amended
Division 2 Amendments commencing on day after assent day
s. 340
1 Minister's decision under
2 subsection (3); and
3 (ii) is of effect only for the period of
4 5 years, or any shorter period that is
5 specified in the consent, beginning on
6 the day on which the consent takes
7 effect;
8 and
9 (b) the owner must notify the Minister if the owner
10 becomes aware of any new information about
11 Aboriginal cultural heritage in relation to the
12 land the subject of the consent.
13 (6A) In subsection (6) --
14 Aboriginal cultural heritage has the meaning given in
15 the Aboriginal Cultural Heritage Act 2021 section 12;
16 located has the meaning given in the Aboriginal
17 Cultural Heritage Act 2021 section 13;
18 transitional period has the meaning given in the
19 Aboriginal Cultural Heritage Act 2021 section 313;
20 new information about Aboriginal cultural heritage,
21 in relation to an area of land the subject of consent
22 given under subsection (3)(a), means information not
23 identified to the Minister or the Committee (whether in
24 the notice given to the Committee under subsection (2)
25 or otherwise) before the consent was given, about --
26 (a) Aboriginal cultural heritage located in the area;
27 or
28 (b) the characteristics of Aboriginal cultural
29 heritage located in the area.
30
page 248
Aboriginal Cultural Heritage Bill 2021
Aboriginal Heritage Act 1972 amended Part 15
Amendments commencing on transition day Division 3
s. 341
1 Division 3 -- Amendments commencing on transition day
2 341. Long title replaced
3 Delete the long title and insert:
4
5 An Act to provide for the determination of certain
6 applications made, and notices given, under this Act before
7 transition day and for related purposes.
8
9 342. Sections 4A and 4B inserted
10 At the beginning of Part II insert:
11
12 4A. Application of Act limited
13 This Act does not apply on and after transition day,
14 other than as set out in section 4B.
15 4B. Act continues to apply for certain purposes only
16 This Act continues to apply on and after transition day
17 for the following purposes only --
18 (a) the determination of applications, made before
19 transition day, for authorisations under
20 section 16(2);
21 (b) the determination of notices, given before
22 transition day, under section 18(2);
23 (c) the determination of applications, made before
24 transition day, for --
25 (i) approvals referred to in the Aboriginal
26 Heritage Regulations 1974 regulation 7;
27 or
28 (ii) consents referred to in the Aboriginal
29 Heritage Regulations 1974
30 regulation 10;
page 249
Aboriginal Cultural Heritage Bill 2021
Part 15 Aboriginal Heritage Act 1972 amended
Division 3 Amendments commencing on transition day
s. 342
1 (d) the making of applications to the State
2 Administrative Tribunal for reviews of
3 decisions under section 18(3).
4
page 250
Aboriginal Cultural Heritage Bill 2021
Other Acts amended Part 16
s. 343
1 Part 16 -- Other Acts amended
2 343. Conservation and Land Management Act 1984 amended
3 (1) This section amends the Conservation and Land Management
4 Act 1984.
5 (2) In section 3 in the definition of Minister for Indigenous Affairs
6 delete "Aboriginal Heritage Act 1972" and insert:
7
8 Aboriginal Cultural Heritage Act 2021
9
10 (3) In section 4(5)(a) delete "Aboriginal Heritage Act 1972 --" and
11 insert:
12
13 Aboriginal Cultural Heritage Act 2021 --
14
15 (4) Delete section 59(3)(c) and insert:
16
17 (c) if Aboriginal cultural heritage is located on the
18 land, to the Minister for Indigenous Affairs.
19
20 (5) After section 59(3) insert:
21
22 (3A) In subsection (3)(c) --
23 Aboriginal cultural heritage has the meaning given in
24 the Aboriginal Cultural Heritage Act 2021 section 12;
25 located has the meaning given in the Aboriginal
26 Cultural Heritage Act 2021 section 13.
27
28 344. Constitution Acts Amendment Act 1899 amended
29 (1) This section amends the Constitution Acts Amendment Act 1899.
page 251
Aboriginal Cultural Heritage Bill 2021
Part 16 Other Acts amended
s. 345
1 (2) In Schedule V Part 3:
2 (a) after the item relating to The Aboriginal Advisory
3 Council insert:
4
5 The Aboriginal Cultural Heritage Council established under the
6 Aboriginal Cultural Heritage Act 2021.
7
8 (b) delete the item relating to the Aboriginal Cultural
9 Material Committee.
10 345. Control of Vehicles (Off-road Areas) Act 1978 amended
11 (1) This section amends the Control of Vehicles (Off-road Areas)
12 Act 1978.
13 (2) Delete section 38(2)(e) and insert:
14
15 (e) an inspector or Aboriginal inspector, under the
16 Aboriginal Cultural Heritage Act 2021; or
17
18 346. Coroners Act 1996 amended
19 (1) This section amends the Coroners Act 1996.
20 (2) After section 19A insert:
21
22 19B. Investigations and Aboriginal ancestral remains
23 (1) In this section --
24 Aboriginal ancestral remains has the meaning given in
25 paragraph (b)(iv) of the definition of Aboriginal
26 cultural heritage in the Aboriginal Cultural Heritage
27 Act 2021 section 12;
28 Aboriginal Cultural Heritage Council means the body
29 established under the Aboriginal Cultural Heritage
30 Act 2021 section 20(1).
page 252
Aboriginal Cultural Heritage Bill 2021
Other Acts amended Part 16
s. 347
1 (2) If a coroner investigating a death believes that the body
2 is, or is likely to be, Aboriginal ancestral remains, the
3 coroner must notify the Aboriginal Cultural Heritage
4 Council.
5
6 347. COVID-19 Response and Economic Recovery Omnibus
7 Act 2020 amended
8 (1) This section amends the COVID-19 Response and Economic
9 Recovery Omnibus Act 2020.
10 (2) Delete section 13(4)(b).
11 348. Environmental Protection Act 1986 amended
12 (1) This section amends the Environmental Protection Act 1986.
13 (2) After section 41(4) insert:
14
15 (5) Subsections (2) and (3) do not apply to a decision in
16 relation to a proposal if the decision is made under the
17 Aboriginal Cultural Heritage Act 2021.
18
19 349. Heritage Act 2018 amended
20 (1) This section amends the Heritage Act 2018.
21 (2) In section 9(b) delete "Aboriginal tradition or culture." and
22 insert:
23
24 Aboriginal cultural heritage, as defined in the Aboriginal
25 Cultural Heritage Act 2021 section 12.
26
page 253
Aboriginal Cultural Heritage Bill 2021
Part 16 Other Acts amended
s. 350
1 (3) Delete section 10(a) and insert:
2
3 (a) the Aboriginal Cultural Heritage Act 2021; or
4
5 (4) In section 12(2)(b) delete "Aboriginal tradition or culture." and
6 insert:
7
8 Aboriginal cultural heritage, as defined in the Aboriginal
9 Cultural Heritage Act 2021 section 12.
10
11 350. Planning and Development Act 2005 amended
12 (1) This section amends the Planning and Development Act 2005.
13 (2) In section 277(6) delete example 1 and insert:
14
15 1. An ACH permit or an approved or authorised ACH
16 management plan under the Aboriginal Cultural Heritage
17 Act 2021 Part 6.
18
19 351. Railway (Tilley to Karara) Act 2010 amended
20 (1) This section amends the Railway (Tilley to Karara) Act 2010.
21 (2) Delete section 6.
22 352. Sentencing Act 1995 amended
23 (1) This section amends the Sentencing Act 1995.
24 (2) In Schedule 1 after the item relating to the Aboriginal
25 Communities Act 1979 insert:
26
Aboriginal Cultural Heritage Aboriginal Cultural Heritage
Act 2021 Compensation Fund
27
page 254
Aboriginal Cultural Heritage Bill 2021
Other Acts amended Part 16
s. 353
1 353. State Records Act 2000 amended
2 (1) This section amends the State Records Act 2000.
3 (2) Delete section 76(1)(a) and (b) and insert:
4
5 (a) Aboriginal cultural heritage, as defined in the
6 Aboriginal Cultural Heritage Act 2021
7 section 12; or
8 (b) any other matter relating to Aboriginal
9 Australians,
10
page 255
Aboriginal Cultural Heritage Bill 2021
Defined terms
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)
Aboriginal ancestral remains ........................................................................ 11, 12
Aboriginal cultural heritage .......................................................................... 11, 12
Aboriginal inspector............................................................................................ 11
Aboriginal object .......................................................................................... 11, 12
Aboriginal party ........................................................................................ 100, 318
Aboriginal person ............................................................................................... 11
Aboriginal place ............................................................................................ 11, 12
Aboriginal site................................................................................................... 314
Aboriginal tradition ............................................................................................. 11
account ......................................................................................................... 281(1)
ACH Account .............................................................................................. 279(1)
ACH Compensation Fund ............................................................................ 280(1)
ACH Council ...................................................................................................... 11
ACH Directory .................................................................................................... 11
ACH impact statement ................................................................................ 11, 100
ACH Management Code ........................................................................... 100, 294
ACH management plan .................................................................. 11, 100, 137(1)
ACH permit.................................................................................... 11, 100, 115(1)
ACH protection agreement .................................................................... 11, 206(1)
ACMC............................................................................................................... 313
affect .............................................................................................................. 16(1)
affected person ..................................................................................... 276, 277(1)
agent ................................................................................................. 267(1) and (2)
AH Act .............................................................................................................. 313
AH Act approval ............................................................................................... 318
AH Act protected area order ............................................................................. 314
AH Act section 18 consent ............................................................................... 313
annual report ................................................................................................ 281(4)
application....................................................................................... 175(1), 245(1)
application area ................................................................................................... 69
applied provision............................................................................................... 235
applied provisions ........................................................................................ 239(4)
approved form ..................................................................................................... 11
approved or authorised ACH management plan ................................................. 11
area...................................................................................................................... 11
assent day ........................................................................................................ 2, 11
authorised ACH management plan ................................................................... 318
authorised officer ......................................................................................... 303(1)
authorised person ......................................................................................... 272(1)
page 256
Aboriginal Cultural Heritage Bill 2021
Defined terms
CATSI Act .......................................................................................................... 19
CATSI Act corporation ................................................................................. 11, 19
CEO .................................................................................................................... 11
CI Act................................................................................................................ 221
committee ........................................................................................................... 19
compensation sum.......................................................................................... 99(3)
consult ......................................................................................................... 11, 100
consultation guidelines................................................................................ 11, 294
Corporations Act corporation........................................................................ 11, 19
Crown land .......................................................................................................... 11
cultural landscape ......................................................................................... 11, 12
culturally sensitive information .......................................................................... 11
custodian ....................................................................................... 53, 55(1), 63(1)
date specified ............................................................................................... 261(2)
deal with....................................................................................................... 241(1)
Department.......................................................................................................... 11
document........................................................................................................ 28(1)
due diligence assessment ............................................................................ 11, 102
dwelling ............................................................................................................ 221
each knowledge holder .................................. 75(2), 77(2), 107(2), 175(5), 187(4)
electronic means ................................................................................................. 11
employer ...................................................................................................... 268(1)
entry warrant ..................................................................................................... 221
exempt activity .................................................................................................. 100
expiry day .................................................................................................... 325(1)
feasible alternative method .......................................................................... 146(2)
fee ................................................................................................................ 292(1)
financial matters ........................................................................................... 288(1)
FOI Act ............................................................................................................... 18
forensic examination .................................................................................... 243(1)
former proponent ......................................................................................... 171(4)
former protected area order ............................................................................... 314
funding period ................................................................................................ 51(2)
funding sum ........................................................................................ 51(2), 52(2)
guidelines ............................................................................................................ 11
harm ......................................................................................................... 11, 90(1)
historical AH Act section 18 consent ................................................... 313, 328(1)
historical protected area order .............................................................. 314, 315(1)
identity card ................................................................................................. 227(1)
ILUA ................................................................................................................... 11
information........................................................................................ 28(1), 146(2)
informed consent ............................................................................................... 100
inspection purposes ........................................................................................... 221
inspector .............................................................................................................. 11
page 257
Aboriginal Cultural Heritage Bill 2021
Defined terms
instrument ........................................................................................................... 11
intangible Aboriginal cultural heritage ........................................................ 213(3)
interested Aboriginal party .................................................................. 100, 135(1)
in the interests of the State .................................................................................. 11
knowledge holder ................................................................................................ 11
knowledge holder guidelines ...................................................................... 11, 294
land ..................................................................................................................... 11
landholder ........................................................................................................... 11
local ACH service ............................................................................................... 11
local ACH service (fees) guidelines ............................................................ 11, 294
local ACH service functions ......................................................................... 11, 19
located ........................................................................................................... 11, 13
Marandoo Act area ............................................................................................ 327
material .................................................................................................... 11, 91(2)
mediator ....................................................................................................... 160(6)
member ............................................................................................................... 19
mobile home ................................................................................................ 234(1)
Native Title Act .................................................................................................. 11
native title party .................................................................................................. 11
native title representative body ........................................................................... 11
native title rights and interests ............................................................................ 11
new information about Aboriginal cultural heritage ...................... 11, 178, 321(3)
no longer in force .............................................................................. 318, 319, 320
notice area .................................................................................................... 175(3)
occupier............................................................................................................... 11
officer ................................................................................................... 263, 303(1)
organisation ......................................................................................................... 53
outstanding significance ................................................................................ 11, 69
owner ........................................................................................................ 318, 327
Part 7 order.......................................................................................................... 11
parties .......................................................................................................... 11, 100
persons to be consulted ............................................................................... 11, 100
persons to be notified .................................................................................. 11, 100
photograph ........................................................................................................ 221
Police Force ................................................................................................. 303(1)
preferred method .......................................................................................... 146(2)
prescribed ............................................................................................................ 11
prescribed entity ........................................................................................... 303(1)
prescribed public authority ................................................................................. 62
principal ........................................................................................... 267(1) and (2)
prohibition order ................................................................................................. 11
proponent .................................................................................................... 11, 100
proposed activity ......................................................................................... 11, 100
proposed parties ........................................................................................... 160(1)
page 258
Aboriginal Cultural Heritage Bill 2021
Defined terms
protected area ...................................................................................................... 11
protected area order............................................................................................. 11
protected area order guidelines ................................................................... 11, 294
protocol ........................................................................................................ 303(1)
publication day ............................................................................................. 336(1)
public authority ................................................................................................... 11
public notice ........................................................................................................ 11
purported section 18 consent........................................................................ 330(2)
reasonably suspects ................................................................................... 221, 222
reduced area ...................................................................................................... 327
regional corporation ................................................................................. 11, 40(2)
registered native title body corporate .................................................................. 11
registered native title claimant ............................................................................ 11
Registrar ......................................................................................................... 87(1)
related agreement ........................................................................................ 11, 100
relevant information ..................................................................................... 303(1)
relevant record ............................................................................................. 237(1)
remediate ........................................................................................................... 178
remediation order ................................................................................................ 11
remote communication................................................................................. 245(1)
repeal day ........................................................................................................ 2, 11
reviewable decision .............................................................................. 276, 277(1)
secret or sacred object ......................................................................................... 11
section 82(1) notification ............................................................................... 87(2)
seized thing ....................................................................................................... 221
serious ...................................................................................................... 11, 91(1)
settlement ILUA ...................................................................................... 11, 40(2)
specified ................................................................................................. 11, 336(1)
specified land .................................................................................................... 327
specified purpose .............................................................................................. 327
State significance ........................................................................................ 11, 100
State significance guidelines ....................................................................... 11, 294
stop activity order ............................................................................................... 11
thing relevant to an offence .................................................................. 221, 223(1)
tier 1 activity ............................................................................................... 11, 100
tier 2 activity ............................................................................................... 11, 100
tier 3 activity ............................................................................................... 11, 100
traditional rights, interests and responsibilities ................................................... 11
transitional AH Act section 18 consent ............................................................. 313
transitional matter ........................................................................................ 336(1)
transitional period ............................................................................................. 313
transitional regulations ......................................................................... 313, 336(1)
transition day................................................................................................... 2, 11
uncommitted amount ..................................................................................... 51(5)
page 259
Aboriginal Cultural Heritage Bill 2021
Defined terms
vehicle ................................................................................................................. 11
WA Museum ....................................................................................................... 11
[Index] [Search] [Download] [Related Items] [Help]