1Short title
This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Parliamentary material from APH and the Federal Register of Legislation. Links open the official source in a new tab.
This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
This Act shall come into operation on the day on which it receives the Royal Assent.
In this Act, unless the contrary intention appears:
Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.
Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:
a body or the remains of a body:
buried in accordance with the law of a State or Territory; or
buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;
an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or
a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
area includes a site.
Australian waters means:
the territorial sea of Australia and any sea on the landward side of that territorial sea;
the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or
the sea over the continental shelf of Australia.
Federal Court means the Federal Court of Australia.
significant Aboriginal area means:
an area of land in Australia or in or beneath Australian waters;
an area of water in Australia; or
an area of Australian waters;
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.
significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.
For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
in the case of an area:
it is used or treated in a manner inconsistent with Aboriginal tradition;
by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;
and references in this Act to injury or desecration shall be construed accordingly.
For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.
The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
This Act extends to every external Territory.
This Act binds the Crown in each of its capacities.
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.
Where:
a law of a State or Territory deals with a matter dealt with in this Act; and
an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);
the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.
Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.
This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.
Where the Minister:
receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; and
is satisfied:
that the area is a significant Aboriginal area; and
that it is under serious and immediate threat of injury or desecration;
he or she may, by legislative instrument, make a declaration in relation to the area.
Subject to this Part, a declaration under subsection (1) has effect for such period, not exceeding 30 days, as is specified in the declaration.
The Minister may, if he or she is satisfied that it is necessary to do so, declare by legislative instrument that a declaration made under subsection (1) shall remain in effect for such further period as is specified in the declaration made under this subsection, not being a period extending beyond the expiration of 60 days after the day on which the declaration under subsection (1) came into effect.
Where the Minister:
receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration;
is satisfied:
that the area is a significant Aboriginal area; and
that it is under threat of injury or desecration;
has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and
has considered such other matters as he or she thinks relevant;
he or she may, by legislative instrument, make a declaration in relation to the area.
Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.
Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall:
publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice:
stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report;
inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and
specifying an address to which such representations may be furnished; and
give due consideration to any representations so furnished and, when submitting the report, attach them to the report.
For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters:
the particular significance of the area to Aboriginals;
the nature and extent of the threat of injury to, or desecration of, the area;
the extent of the area that should be protected;
the prohibitions and restrictions to be made with respect to the area;
the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a);
the duration of any declaration;
the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
such other matters (if any) as are prescribed.
A declaration under subsection 9(1) or 10(1) in relation to an area shall:
describe the area with sufficient particulars to enable the area to be identified; and
contain provisions for and in relation to the protection and preservation of the area from injury or desecration.
Showing the first 12 of 32 provisions. See all provisions