1Short title
This Act may be cited as the Aboriginal Heritage Act 1972.
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Bill homepageThis Act may be cited as the Aboriginal Heritage Act 1972.
This Act shall come into operation on a date to be fixed by proclamation.
[3. Deleted: No. 24 of 1995 s. 4.]
In this Act, unless the context requires otherwise, —
Aboriginal means pertaining to the original inhabitants of Australia and to their descendants;
Aboriginal cultural material means an object of Aboriginal origin that has been declared to be so classified under section 40;
Aboriginal site means a place to which this Act applies by the operation of section 5;
Committee means the Aboriginal Cultural Heritage Committee established under section 28(1);
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
Museum means the body corporate constituted by that name under the Museum Act 1969;
person of Aboriginal descent means any person wholly or partly descended from the original inhabitants of Australia;
proceedings under this Act includes a proceeding commenced under this Act before the State Administrative Tribunal;
protected area means an area that has been declared to be such under section 19, and includes a temporarily protected area;
Registrar means the person appointed Registrar of Aboriginal Sites under section 37(1);
temporarily protected area means an area that has been declared to be such under section 20 and in respect of which the Order continues to have effect;
the Trustees means the Trustees of the Museum appointed under the Museum Act 1969;
traditional custodian in relation to any place or object means a person named by the Minister in consultation with the Committee in relation thereto under section 9.
[Section 4 amended: No. 24 of 1995 s. 5; No. 55 of 2004 s. 4; No. 27 of 2021 s. 339; No. 23 of 2023 s. 11.]
This Act applies to —
any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;
any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;
any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State;
any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.
[Section 5 inserted: No. 8 of 1980 s. 2; amended: No. 24 of 1995 s. 6.]
Subject to subsection (2a), this Act applies to all objects, whether natural or artificial and irrespective of where found or situated in the State, which are or have been of sacred, ritual or ceremonial significance to persons of Aboriginal descent, or which are or were used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people past or present.
Subject to subsection (2a), this Act applies to objects so nearly resembling an object of sacred significance to persons of Aboriginal descent as to be likely to deceive or be capable of being mistaken for such an object.
This Act does not apply to a collection, held by the Museum under section 9 of the Museum Act 1969, which is under the management and control of the Trustees under that Act.
The provisions of Part VI do not apply to an object made for the purpose of sale and which —
is not an object that is or has been of sacred significance to persons of Aboriginal descent, or an object so nearly resembling such an object as to be likely to deceive or be capable of being mistaken for the same; or
is an object of the kind referred to in paragraph (a) that is disposed of or dealt with by or with the consent of the Minister.
[Section 6 amended: No. 24 of 1995 s. 7.]
Subject to subsection (2), in relation to a person of Aboriginal descent who usually lives subject to Aboriginal customary law, or in relation to any group of such persons, this Act shall not be construed —
so as to take away or restrict any right or interest held or enjoyed in respect to any place or object to which this Act applies, in so far as that right or interest is exercised in a manner that has been approved by the Aboriginal possessor or custodian of that place or object and is not contrary to the usage sanctioned by the Aboriginal tradition relevant to that place or object; or
so as to require any such person to disclose information or otherwise to act contrary to any prohibition of the relevant Aboriginal customary law or tradition.
Nothing in subsection (1) authorises any person, or group of persons, to dispose of or exercise any right or interest, or any purported right or interest, in a manner which is, in the opinion of the Minister, detrimental to the purposes of this Act.
[Section 7 amended: No. 24 of 1995 s. 8.]
Where the Committee is satisfied that a representative body of persons of Aboriginal descent who usually live subject to Aboriginal customary law has an interest in a place or object to which this Act applies that is of traditional and current importance to it, and which is in the custody or control of the Minister, the Minister after consultation with the Committee shall make that place or object available to that body as and whenever required for purposes sanctioned by the Aboriginal tradition relevant to that place or object.
[Section 8 amended: No. 24 of 1995 s. 9.]
Where the Committee is satisfied that a representative body of persons of Aboriginal descent has an interest in a place or object to which this Act applies that is of traditional and current importance to it the Minister may, by notice in the Gazette, authorise a person or persons nominated by that body and named in the notice to exercise such of the powers of the Minister and to perform such of the Minister’s duties in relation to that place or object as are set out in that notice, and any such authorisation may in the like manner be varied or revoked.
For the purposes of Part VII, and in any proceedings, a reference to the Minister shall be deemed to include a reference to a person or persons lawfully acting under the authority of the Minister pursuant to subsection (1).
[Section 9 amended: No. 24 of 1995 s. 10.]
It is the duty of the Minister to ensure that so far as is reasonably practicable all places in Western Australia that are of traditional or current sacred, ritual or ceremonial significance to persons of Aboriginal descent should be recorded on behalf of the community, and their relative importance evaluated so that the resources available from time to time for the preservation and protection of such places may be coordinated and made effective.
The duty of the Minister extends to Aboriginal cultural material of traditional or current sacred, ritual or ceremonial significance whether such material is now located at or associated with any particular place, or otherwise.
[Section 10 amended: No. 24 of 1995 s. 11.]
The Minister —
shall for the purposes of this Act be a body corporate, and shall have as the Minister’s corporate name such designation as applies from time to time to the Minister while charged by the Governor with the administration of this Act;
shall have a seal incorporating that designation;
is capable of holding real and personal property as provided by this Act; and
is capable of suing and being sued in the corporate name of the Minister.
All courts, judges and persons acting judicially shall take judicial notice of the seal of the Minister affixed to any document and shall presume that it was duly affixed.
[Section 11 inserted: No. 24 of 1995 s. 12.]
The responsibility for the administration of this Act is vested in the Minister who is required to have regard to the recommendations of —
the Committee; and
the Registrar,
but, unless otherwise stated in this Act, is not bound to give effect to any such recommendation.
[Section 11A inserted: No. 24 of 1995 s. 12.]
[12. Deleted: No. 24 of 1995 s. 13.]
The Minister may delegate to an officer of the Department all or any of the powers and duties that the Minister has under this Act.
[Section 13 inserted: No. 24 of 1995 s. 14.]
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