Torres Strait Islander Cultural Heritage Act 2003

A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Torres Strait Islander cultural heritage (the cultural heritage duty of care).

for an individual—1,000 penalty units;

for a corporation—10,000 penalty units.

Without limiting the matters that may be considered by a court required to decide whether a person has complied with the cultural heritage duty of care in carrying out an activity, the court may consider the following—

the nature of the activity, and the likelihood of its causing harm to Torres Strait Islander cultural heritage;

the nature of the Torres Strait Islander cultural heritage likely to be harmed by the activity;

the extent to which the person consulted with Torres Strait Islander parties about the carrying out of the activity, and the results of the consultation;

whether the person carried out a study or survey, of any type, of the area affected by the activity to find out the location and extent of Torres Strait Islander cultural heritage, and the extent of the study or survey;

whether the person searched the database and register for information about the area affected by the activity;

the extent to which the person has complied with cultural heritage duty of care guidelines;

the nature and extent of past uses in the area affected by the activity.

A person who carries out an activity is taken to have complied with the cultural heritage duty of care in relation to Torres Strait Islander cultural heritage if—

the person is acting—

under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or

under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or

under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or

in compliance with cultural heritage duty of care guidelines; or

in compliance with native title protection conditions, but only if the cultural heritage is expressly or impliedly the subject of the conditions; or

the person owns the Torres Strait Islander cultural heritage, or is acting with the owner’s agreement; or

the activity is necessary because of an emergency, including for example, a bushfire or other natural disaster.