Torres Strait Islander Cultural Heritage Act 2003

This Act may be cited as the Torres Strait Islander Cultural Heritage Act 2003.

This Act commences on a day to be fixed by proclamation.

This Act binds all persons including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

Nothing in this Act makes the State liable to be prosecuted for an offence.

The main purpose of this Act is to provide effective recognition, protection and conservation of Torres Strait Islander cultural heritage.

The following fundamental principles underlie this Act’s main purpose—

the recognition, protection and conservation of Torres Strait Islander cultural heritage should be based on respect for Torres Strait Islander knowledge, culture and customary practices;

Torres Strait Islanders should be recognised as the primary guardians, keepers and knowledge holders of Torres Strait Islander cultural heritage;

it is important to respect, preserve and maintain knowledge, innovations and practices of Torres Strait Islander communities and to promote understanding of Torres Strait Islander cultural heritage;

activities involved in recognition, protection and conservation of Torres Strait Islander cultural heritage are important because they allow Torres Strait Islanders to reaffirm their obligations to Island custom;

there is a need to establish timely and efficient processes for the management of activities that may harm Torres Strait Islander cultural heritage.

For achieving effective recognition, protection and conservation of Torres Strait Islander cultural heritage, this Act provides for the following—

recognising Torres Strait Islander ownership of Torres Strait Islander human remains wherever held;

recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage of a secret or sacred nature held in State collections;

recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage that is lawfully taken away from an area by a Torres Strait Islander party for the area;

establishing a duty of care for activities that may harm Torres Strait Islander cultural heritage;

establishing powers of protection, investigation and enforcement;

establishing a database and a register for recording Torres Strait Islander cultural heritage;

ensuring Torres Strait Islanders are involved in processes for managing the recognition, protection and conservation of Torres Strait Islander cultural heritage;

establishing a process for the comprehensive study of Torres Strait Islander cultural heritage;

establishing processes for the timely and efficient management of activities to avoid or minimise harm to Torres Strait Islander cultural heritage.

The dictionary in the schedule defines particular words used in this Act.

Torres Strait Islander cultural heritage is anything that is—

a significant Torres Strait Islander area in Queensland; or

a significant Torres Strait Islander object; or

evidence, of archaeological or historic significance, of Torres Strait Islander occupation of an area of Queensland.

A significant Torres Strait Islander area is an area of particular significance to Torres Strait Islanders because of either or both of the following—

Island custom;

Editor’s note—

Under the Acts Interpretation Act 1954, schedule 1 (Meaning of commonly used words and expressions), Island custom, known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.

the history, including contemporary history, of any Torres Strait Islander party for the area.

A significant Torres Strait Islander object is an object of particular significance to Torres Strait Islanders because of either or both of the following—

Island custom;

the history, including contemporary history, of a Torres Strait Islander party for an area.

If a particular object or structure is evidence of Torres Strait Islander occupation, the area immediately surrounding the object or structure is also evidence of Torres Strait Islander occupation to the extent the area can not be separated from the object or structure without destroying or diminishing the object or structure’s significance as evidence of Torres Strait Islander occupation.

This section gives more information about identifying significant Torres Strait Islander areas.

For an area to be a significant Torres Strait Islander area, it is not necessary for the area to contain markings or other physical evidence indicating Torres Strait Islander occupation or otherwise denoting the area’s significance.

For example, the area might be a ceremonial place, a burial place or the site of a massacre.

Also, if significant Torres Strait Islander objects exist in an area and the significance of the objects is intrinsically linked with their location in the area—

the existence of the objects in the area is enough on its own to make the area a significant Torres Strait Islander area; and

if it is reasonably appropriate under this Act, the immediate area and the objects in it may be taken to be, collectively, a significant Torres Strait Islander area.

For identifying a significant Torres Strait Islander area, regard may be had to authoritative anthropological, biogeographical, historical and archaeological information.