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This Act may be cited as the Maritime Archaeology Act 1973 1.
This Act shall come into operation on a date to be fixed by proclamation 1.
In this Act unless the contrary intention appears —
Board means The Western Australian Museum Board constituted under the Museum Act 1959 2;
Director means the person appointed Director of the Museum under the Museum Act 1969;
historic ship means any ship that before the year 1900 was lost, wrecked or abandoned, or was stranded, on or off the coast of Western Australia;
Museum means the body corporate constituted under the Museum Act 1969, and known as “The Western Australian Museum”;
protected zone means an area declared to be a protected zone under section 9;
relic means any thing of historic interest that appears to have formed part of, or to have been carried by or derived from or associated with any historic ship, or to have been constructed or used by any person associated with any such ship, and any thing to which the provisions of section 6(3) apply;
section means section of this Act;
ship includes the remains of a ship, or any part of a ship;
site means a maritime archaeological site;
Trustees means the Trustees of the Museum appointed pursuant to the Museum Act 1969, and includes any person lawfully exercising the powers or performing the duties of the Trustees.
For the purposes of this Act —
any area in which the remains of a ship, which in the opinion of the Director may have been a historic ship, are known to be located;
any area in which any relic is known to be located, or where in the opinion of the Director unrecovered relics associated with a ship which may have been a historic ship are likely to be located; and
any structure, campsite, fortification or other location of historic interest that, in the opinion of the Director, is associated with, and was occupied or used by, persons presumed to have been in a historic ship,
shall be a maritime archaeological site.
A maritime archaeological site may be situated below low water mark, on or between the tide marks, or on land, or partly in one place and partly in another.
Where the Director is of the opinion that any site is not of national or local historical interest or of scientific, archaeological, educational or other special national or local interest, he shall advise the Trustees accordingly and the Trustees may recommend to the Minister that the provisions of this Act should no longer apply to that site.
If the Minister approves of a recommendation made under subsection (1), he may, by notice in the Gazette, declare that this Act no longer applies to that site.
Where the Minister declares that this Act no longer applies to any maritime archaeological site the provisions of this Act shall no longer apply to any object taken, derived or recovered from, or associated with that site or the ship the remains of which were comprised in that site.
The property in and right to possession of all historic ships and maritime archaeological sites is vested in the Museum on behalf of the Crown.
Subject to section 21, and unless the object in question —
is an object taken or recovered from a ship mentioned in the First Schedule in relation to which due notice was given to the Director under the provisions of section 20C of the Museum Act 1959 2, or of section 42 of the Museum Act 1969 3, and in respect of the disposal of which the written permission of the Trustees has been given; or
is an object taken or recovered before 18 December 1964 from a ship mentioned in the Second Schedule,
and was immediately prior to the coming into operation of this Act in the lawful possession of a person, the property in and right to possession of all relics derived from or associated with a historic ship is vested in the Museum on behalf of the Crown.
Subject to section 21, the property in and right to possession of any object which, in the opinion of the Director, was abandoned in the State before the year 1900 and derives from or was associated with any ship, whether or not a historic ship within the meaning of this Act, and which was not, immediately prior to the coming into operation of this Act, in the lawful possession of a person, is vested in the Museum on behalf of the Crown.
Where the Trustees are satisfied that relics were recovered from a historic ship before 18 December 1964, and particulars of that historic ship do not appear in the Second Schedule, the Governor, on the recommendation of the Trustees, may by Order in Council, notice of which shall be published in the Gazette, add the particulars of that historic ship to the Second Schedule and thereupon that schedule as thereby amended shall be deemed to have been so enacted in this Act.
Compensation is not payable to any person by reason that the property in and the right to possession of any site, relic, or thing is vested in the Museum on behalf of the Crown by the operation of this Act.
It is hereby declared that the property in and the right to possession of any ship or relic by operation of this Act vested in the Museum on behalf of the Crown shall be taken to have been so vested for all purposes at all material times —
in the Board, in relation to the period from the date of the coming into operation of the Museum Act Amendment Act 1964 4, to the date of the coming into operation of section 42 of the Museum Act 1969 5; and
in the Museum, in relation to the period from the date of the coming into operation of section 42 of the Museum Act 1969 5, to the date of the coming into operation of this Act 1.
A person who —
without the consent of the Trustees, in any way alters, removes, destroys, damages, or in any way deals with, or assumes the possession, custody or control of, any maritime archaeological site, ship, relic or thing vested in the Museum on behalf of the Crown pursuant to this Act; or
having the consent of the Trustees to do any of the things mentioned in paragraph (a), is in breach of any condition to which the giving of the consent was subject; or
impedes or hinders, or endeavours in any way to impede or hinder, any member of the staff or employee of the Museum or any person acting with the authority of the Trustees who is inspecting, recovering or otherwise dealing with any such site, ship, relic, or thing,
commits an offence.
Penalty: $2 000 or imprisonment for 12 months or both the fine and imprisonment.
In any proceedings for an offence against subsection (1) the fact that no notice in writing to the Director in relation to that object has been given under the provisions of —
section 20C of the Museum Act 1959 2; or
section 42 of the Museum Act 1969 3,
and that the Trustees’ authority in writing permitting the object to be sold, destroyed or otherwise disposed of has not been given is deemed to be proved in the absence of proof to the contrary.
For the purpose of preventing the plunder, damage or disturbance of maritime archaeological sites, and of the ships, relics or things vested in the Museum on behalf of the Crown, the Governor may, by an instrument published in the Gazette, declare that an area is a maritime archaeological site and that a specified area surrounding that site is a protected zone, and that zone may be declared to include the waters lying above and the land or the bed of the sea below it.
A declaration made under subsection (1) shall be laid before each House of Parliament within the 6 sitting days of such House next following the date of publication and the provisions of section 36 of the Interpretation Act 1918 6, shall thereupon apply to that declaration as if it had been a regulation so laid.
Where the site is or extends below low water mark the boundaries of that site shall be specified and the boundaries of the protected zone below low water mark in relation to that site shall not extend beyond 500 metres from the perimeter of that site.
The declaration of a protected zone shall specify the boundaries of that zone in sufficient detail to enable them to be established but it shall not be necessary that the boundaries are surveyed or demarcated, and notwithstanding that the boundaries are not demarcated a person may be convicted of an offence against this Act in relation to a protected zone where the court is satisfied that the location of that zone could have been established by a reasonable person by reference to land marks, leading marks, a buoy or other position marker specified in the declaration, but it shall be a defence to show that the location could not have been so established.
The Governor may make regulations prohibiting, or imposing conditions or restrictions upon —
the bringing into, or the use within, a protected zone of equipment constructed or adapted for any purpose of diving, salvage or recovery operations, or any explosives, instruments or tools likely adversely to affect a site, and the entry into, or the remaining within, a protected zone of any vessel carrying any such equipment or other such thing;
diving or other underwater activity; and
the mooring of vessels, or the use of those waters by vessels otherwise than for the purpose of innocent passage, recreation, or commercial fishing of a kind not likely adversely to affect a site,
in relation to protected zones generally or in relation to any zone specified in the regulations.
A person who contravenes any provision of a regulation made pursuant to subsection (5) commits an offence against this Act, and where a vessel enters or remains within a protected zone in contravention of any such regulation the person in command or in charge of the vessel and, where he can be shown to have caused or permitted the contravention, the owner or charterer of the vessel are each guilty of an offence against this Act.
Penalty: $1 000 or imprisonment for 6 months or both the fine and imprisonment.
At the hearing of any proceedings with respect to any area or thing to which this Act applies the production of a certificate purporting to be signed by the Director, or by a member of the staff of the Museum to whom the power of the Director has been delegated by notice in the Gazette either for the general purposes of this Act or in relation to a particular matter, that he is satisfied —
that a locality or thing is of historic interest;
that an area constitutes a maritime archaeological site;
that a ship was, or appears likely to have been, in the waters adjacent to the coast of Western Australia before the year 1900; or
that a relic or thing appears to have been associated with a ship, or to have been abandoned, constructed or used by persons associated with a ship therein specified,
is sufficient evidence of the matters relevant to those proceedings stated in the certificate, without proof of the signature of the person appearing to have signed the certificate or that he is the Director or a person so authorised by the Director, if —
notice of intention to adduce evidence by certificate is given not less than 3 days before the day of the trial or hearing, and that notice is served and the service proved in the same manner as notices to admit and produce may be served and proved in civil proceedings;
objection is not taken before or at the trial or hearing; and
the Director, and any person purporting to have signed the certificate as a delegate under the authority of the Director, have not been required to attend to give evidence in person,
unless the court otherwise orders, or evidence to the contrary is adduced.
In any proceedings under this Act the onus of proof that the provisions of this Act do not apply to any ship, relic or other thing lies upon the accused.
Where in a charge of an offence against this Act there is an averment that an act or omission occurred within a protected zone, courts and persons acting judicially shall, on the act or omission being proved, presume in absence of proof to the contrary that it occurred within the protected zone as averred.
[Section 10 amended: No. 84 of 2004 s. 80 and 82.]
When, on the arrest of a person on a charge of an offence under section 8 or section 9 —
the property in respect of which the offence is alleged to be committed; or
any vessel, vehicle, equipment, or other thing alleged to have been used in the commission of the offence,
is found in his possession or under his control the person arresting him may seize such property or thing.
The Criminal and Found Property Disposal Act 2006 applies to and in respect of any thing that is seized under this section and for the purposes of that Act —
the Museum is a prescribed agency; and
the Director is the chief officer of the Museum.
[Section 11 amended: No. 59 of 2006 s. 59.]
A court convicting a person of an offence against section 8 or section 9 may, in addition to imposing a penalty, order the forfeiture to the Crown of any vessel, vehicle, or other specified equipment or thing, used in the commission of the offence, and any order so made has effect according to its tenor.
The court may, before making an order under this section, require notice to be given to, and hear, such persons as the court thinks fit.
Goods in respect of which an order is made under this section shall be dealt with as the Attorney General directs and, pending his direction, may be detained in such custody as the court directs.