Aboriginal Heritage Act 1975

Aboriginal Heritage Act 1975

This Act may be cited as the Aboriginal Heritage Act 1975.

This Act shall commence on a date to be fixed by proclamation.

In this Act, unless the contrary intention appears – authorized officer means a police officer or warden; container includes any wrapping; conveyance means any vehicle, vessel, or aircraft, or any other contrivance intended for the carriage of persons or goods over land or water or in the air; Council means the Aboriginal Heritage Council established under section 3;Crown land means any land vested in the Crown, whether or not it is subject to any private rights, but does not include any such land that is contracted to be granted in fee simple;Director means the Director of National Parks and Wildlife; guidelines means guidelines issued and in force under section 21A; honorary warden means an honorary warden appointed under section 16; land includes land covered by the sea or other waters, and part of the sea or those waters covering that land; protected object has the meaning assigned to that expression by section 7(4); protected site means an area of land declared to be a protected site under section 7; small business entity means a body corporate that is within the meaning of small business entity in section 328 – 110 of the Income Tax Assessment Act 1997 of the Commonwealth; warden means a warden appointed under section 15.

For the purposes of this Act, any person who has wholly or partly descended from the original inhabitants of Australia is a person of Aboriginal descent.

For the purposes of this Act, but subject to the following provisions of this section, a relic is – any artefact, painting, carving, engraving, arrangement of stones, midden, or other object, made or created by any of the original inhabitants of Australia or the descendants of any such inhabitants, which is of significance to the Aboriginal people of Tasmania; or any object, site, or place that bears signs of the activities of any such original inhabitants or their descendants, which is of significance to the Aboriginal people of Tasmania; or the remains of the body of such an original inhabitant or of a descendant of such an inhabitant that are not interred in– any land that is or has been held, set aside, reserved, or used for the purposes of a burial-ground or cemetery pursuant to any Act, deed, or other instrument; or a marked grave in any other land.

Despite subsection (3)(a) or (b), objects made, or likely to have been made, for the purposes of sale (otherwise than by way of barter or exchange in accordance with Aboriginal tradition) are not relics for the purposes of this Act.

In any proceedings under this Act in relation to an object alleged to be a relic, the court shall assume the object to be a relic if it is satisfied that there are reasonable grounds for believing that the object is, or may be, a relic.

References in this Act to the taking or removing of a protected object or relic shall be construed as including references to attempting to take or remove, or assisting in the taking or removing of, that object or relic.

References in any Act to a public reserve or historic reserve include references to a protected site.

In this section – Aboriginal tradition means – the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and any such tradition, knowledge, observance, custom or belief relating to particular persons, areas, objects or relationships; significance, of a relic, means significance in accordance with – the archaeological or scientific history of Aboriginal people; or the anthropological history of Aboriginal people; or the contemporary history of Aboriginal people; or Aboriginal tradition.

The Aboriginal Heritage Council is established.

The Council – shall make recommendations to the Minister on any matter in respect of which this Act provides for its making recommendations to him; shall advise, and make written recommendations to, the Minister in relation to any object, site or place alleged to be a relic under this Act; shall advise, and make recommendations to, the Minister on such other matters in relation to the administration of this Act as it thinks fit; shall make recommendations to the Director on any matter in respect of which this Act provides for its making recommendations to him; and shall, if requested by the Director, advise, and make recommendations to, him in respect of any other matter relating to the exercise of his functions under this Act.

For the purposes of providing advice, and making written recommendations, to the Minister under subsection (2)(ab), the Council is to seek information, or professional or expert advice, from any person or body the Council believes on reasonable grounds to have expertise in relation to the matters concerned.

Without prejudice to the generality of the provisions of subsection (2), where the Minister refers to the Council any matter related to the administration of this Act or the Director refers to it any matter related to the exercise of his functions under this Act, the Council shall consider that matter as soon as practicable and make a report thereon to the Minister or Director with such recommendations as it may consider appropriate in the circumstances.

Subject to this Act, the Minister may make arrangements to render available to the Council such accommodation and assistance as it may require.

The Director shall furnish the Council with such information as it may require and is reasonably available to him in connection with the exercise of his functions under this Act.

In performing its functions under this Act, the Council, where it is appropriate and practicable to do so, is to consult with the Aboriginal people of Tasmania.

Subject to subsection (2), the Council consists of not more than 10 members appointed – by the Governor on the recommendation of the Minister; and on such terms and conditions as the Minister considers appropriate.

All members of the Council are to be Aboriginal persons.

The Minister is to appoint one member of the Council as its Chairperson.

The Council has – power to do anything necessary or convenient to be done to perform its functions; and such other powers as it is given by this or any other Act.

Except as provided by this Act or the regulations, the Council may regulate its own proceedings.

Where the Minister is satisfied that there is on or in any land a relic and that steps should be taken to protect or preserve that relic, he may, on the recommendation of the Director, by order declare an area of land within which it is situated to be a protected site.

The Minister may, on the recommendation of the Director, by order revoke an order made under this section or vary it with respect to the area of land to which it relates.

An order shall not be made under this section in respect of an area of land (other than an area of Crown land), unless the owner and occupier of the land consent, in writing, to the making of the order.

An order made under subsection (1) shall specify the relic in respect of which it is made, and a relic so specified, and any part of such a relic and any object forming part of, contained within, or attached to, such a relic or object, is referred to in this Act as a protected object.

The Director is charged with the management and maintenance of every protected site and the protection and preservation of the protected objects on and in that site.

Without prejudice to the generality of subsection (1), the Director shall cause to be carried out on a protected site such work as, in his opinion, is necessary or desirable for the purpose of – protecting or preserving a protected object, or any other object, on or in the site and providing and maintaining means of access to any such object or to the site; and restoring or repairing any such object.

The work referred to in subsection (2) includes – the fencing of a protected site; the erection and maintenance of notices on the site (including notices relating to the site or any object on or in the site or any of the provisions of this Act); the erection and maintenance of cairns or other monuments to mark any object on or in the site; and the provision of such facilities and conveniences for the use or benefit of persons resorting to that site as the Director deems necessary – but nothing in that subsection authorizes the carrying out of work elsewhere than on such a site, except for the purpose of providing, improving, or maintaining means of access to the site.

The Director may impose a charge for the use of the facilities and conveniences referred to in subsection (3).

Notwithstanding subsection (4), where a protected site is not an area of Crown land, no charge may be imposed under that subsection on the owner or occupier of the land.

If the Director is satisfied that any object on or in a protected site is likely to suffer damage or be destroyed or lost unless it is removed to a place of safety, the Director may cause that object to be removed from the site and may, subject to subsection (7), make such arrangements as he considers suitable for its safe custody or for otherwise dealing with it for the purposes of this subsection.

The arrangements made by the Director with respect to human remains that are removed by him pursuant to subsection (6) shall be made – after he has caused such scientific or other investigations of those remains to be made as, having regard to the recommendations made by the Council with respect to those investigations, he considers necessary or desirable; after he has considered the recommendations made by the Council with respect to those arrangements; and subject to the Minister's approval.

The Director may cause examinations to be made of any object in a protected site and may cause explorations to be made of the site, whether by way of the carrying out of excavations or other works or otherwise.

Subject to subsections (7) and (10), the powers of the Director under subsection (6) or subsection (8), so far as they relate to the carrying out of work or the removal of or dealing with objects, shall not be exercised unless the Director has previously informed the Minister.

Where it is impracticable for the Director to inform the Minister before he exercises the powers to which subsection (9) refers, he shall be deemed to comply with that subsection if he notifies the Minister as soon as is reasonably practicable after he exercises those powers.

A person who is authorized, in writing, by the Director may, with such tools and equipment as may be necessary, enter on any land, during the hours of daylight, for the purpose of exercising the powers conferred on the Director by this section.

A person having an estate or interest in any land is entitled to compensation for any loss or injury (whether to the land or any object on the land), or for any decrease in the value of that land, arising from the exercise on that land of any of the powers conferred on the Director by this section, and that compensation shall be of such amount as may be agreed between that person and the Director.

Where there is a dispute between the Director and a person as to the amount of compensation to which that person is entitled under subsection (12), the dispute shall be referred to, and heard and determined by, a magistrate.

Compensation to which a person is entitled under subsection (12) may be recovered as a debt due to him from the Crown.

Except in accordance with the terms of a permit granted by the Director, no person – shall destroy, damage, disfigure, conceal, uncover, expose, excavate, or otherwise interfere with a protected object; shall carry out an act likely to endanger a protected object; or shall destroy, damage, or deface, or otherwise interfere with any fencing or notice erected, or any other work carried out, in or in respect of a protected site in pursuance of this Act.

Except in accordance with the terms of a permit granted by the Minister on the recommendation of the Director, no person shall remove a protected object from a protected site.

A person who – contravenes subsection (1)(a) or (b) in relation to a relic or object, knowing, at the time of the contravention, that it is a protected object; or contravenes subsection (1)(c) or subsection (2) in relation to a site, knowing, at the time of the contravention, that it is a protected site – is guilty of an offence. In the case of – a body corporate, other than a small business entity, a fine not exceeding 10 000 penalty units; or an individual or a small business entity, a fine not exceeding 5 000 penalty units.

A person who – contravenes subsection (1)(a) or (b) in relation to a relic or object and is, at the time of the contravention, reckless or negligent as to whether it is a protected object; or contravenes subsection (1)(c) or subsection (2) in relation to a site, and is, at the time of the contravention, reckless or negligent as to whether it is a protected site – is guilty of an offence. In the case of – a body corporate, other than a small business entity, a fine not exceeding 2 000 penalty units; or an individual or a small business entity, a fine not exceeding 1 000 penalty units.

Where an authorized officer has reasonable grounds for believing that a protected object has been removed from a protected site contrary to subsection (2), he may seize that protected object.

If, in any proceedings for an offence against a provision of this section, the court is not satisfied that the defendant is guilty of the offence as charged but is satisfied that the defendant is guilty of an offence under another provision of this section in relation to which a lesser maximum fine is prescribed, the court may find the defendant guilty of the other offence.

Subject to subsection (2), a person who, at the commencement of this Act – owns a relic or has a relic in his custody or under his control; or has knowledge of a relic – shall, within 6 months after that commencement, inform the Director or an authorized officer of the fact.

Without prejudice to the generality of section 25, the regulations may exempt, or may authorize the Director to exempt – any person or class of persons from complying with subsection (1); and any relic or any class or kind of relics from that subsection – either unconditionally or subject to such conditions as may be prescribed or as the Director may impose.

A person shall, as soon as practicable after finding a relic, inform the Director or an authorized officer of the find.

It is a defence in any proceedings for an offence under subsection (1) or subsection (3) for the defendant to show that he had reasonable grounds for believing that the Director was aware of the existence of the relic.

A person who has knowledge of the place where a relic is situated shall, when so requested by an authorized officer, inform that officer of the location of that place.

The Director may, by agreement with a person who owns a relic or has a relic in his custody or under his control, take such action as he considers necessary for the preservation, exhibition, study, or scientific or other investigation of the relic.

A person who contravenes, or fails to comply with, any of the provisions of this section is guilty of an offence. In the case of – a body corporate, other than a small business entity, a fine not exceeding 100 penalty units; or an individual or a small business entity, a fine not exceeding 50 penalty units.

A relic that, on or after the commencement of this Act – is found by any person; or is abandoned by any person – on any Crown land is the property of the Crown.

In subsection (1),relic means a relic that is not attached to, or otherwise part of, Crown land.

Subject to this section, on the recommendation of the Director, the Minister may acquire or accept a relic on behalf of the Crown and a relic so acquired or accepted becomes vested in the Crown.

Without prejudice to the acquisition of a relic under this section by any other means, the Minister may serve notice on the owner of the relic informing him that the relic is required by the Crown and requiring him to deliver the relic to the place specified in the notice, and on the relic being so delivered it vests in and becomes the property of the Crown.

Where a notice has been served on the owner of a relic (in this section referred to as "the previous owner") under subsection (2), and he satisfies the Minister that it is not practicable for him to deliver the relic to the place specified in the notice given to him under that subsection, he shall give possession of the relic to a person authorized in writing by the Minister to take the relic.

Where a relic becomes vested in the Crown by virtue of subsection (2), the Minister shall pay to the previous owner its value and the reasonable expenses (if any) incurred by the previous owner in delivering the relic as mentioned in that subsection.

Where there is a dispute between the Minister and the previous owner of a relic as to the value of the relic, or the amount of any such expenses as are referred to in subsection (4), the dispute shall be referred to, and heard and determined by, a magistrate.

A notice required to be served on any person under this section may be so served by delivering it to him personally or sending it by certified mail addressed to him at his usual or last known place of abode or business.

Where a notice has been served on the owner of a relic, he may apply to a magistrate within one month from the date of the service of the notice for the notice to be quashed on the grounds that – he is of Aboriginal descent; and he or his ancestors have had the possession of the relic for a period exceeding 50 years – and if upon hearing the application the magistrate is satisfied that the grounds have been made out he may quash the notice and thereupon the notice shall cease to be of further effect.

Any person who damages, destroys or disposes of a relic in respect of which a notice has been served under subsection (2) is guilty of an offence. In the case of – a body corporate, other than a small business entity, a fine not exceeding 100 penalty units; or an individual or a small business entity, a fine not exceeding 50 penalty units.

In this section, owner, in relation to a relic, includes the person in possession of the relic.

This section does not authorize the acquisition or acceptance of any land or require the severance of any relic from land.