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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
ABORIGINAL HERITAGE PROTECTION BILL
2013
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Objects and principles of Act
4. Interpretation
5. Meaning of Aboriginal human remains
6. Meaning of Aboriginal object
7. Meaning of Aboriginal site
8. Meaning of exempt land activity
9. Declarations of exempt area and area of high sensitivity
10. Objectives to be taken into account by persons discharging
certain responsibilities under Act
11. Timing of actions and decisions
12. Act does not affect operation of certain other Acts
13. Act binds Crown
PART 2 - ADMINISTRATION
Division 1 - Aboriginal Heritage Council
14. Establishment of Aboriginal Heritage Council
15. Membership of Council
[Bill 73]-II
16. Functions of Council
17. Powers of Council
18. Committees
Division 2 - Miscellaneous
19. Delegation by Minister
20. Guidelines
PART 3 - OWNERSHIP AND PROTECTION OF ABORIGINAL
HERITAGE
Division 1 - Aboriginal human remains
21. Duty of persons having Aboriginal human remains at
commencement of this section
Division 2 - Aboriginal objects and Aboriginal sites
22. Duty of persons having Aboriginal objects at commencement of
this section
23. Duty of persons finding Aboriginal objects or Aboriginal sites
24. Disclosing locations of unregistered Aboriginal objects or
Aboriginal sites
25. Dealing with reported, &c., Aboriginal objects and Aboriginal
sites
Division 3 - Land and property matters
26. Notification of Aboriginal heritage
27. Continued enjoyment of private property rights
28. Acquisition of Aboriginal sites
Division 4 - Protection of Aboriginal heritage
29. Acts that harm Aboriginal heritage
30. Acts likely to harm Aboriginal heritage
PART 4 - ABORIGINAL HERITAGE PERMITS
31. Certain activities require Aboriginal heritage permit
32. Applications for Aboriginal heritage permits
33. Determination of applications for Aboriginal heritage permits
34. Issue and registration of Aboriginal heritage permits
35. Nature of Aboriginal heritage permits
2
36. Aboriginal heritage permit conditions
37. Variations of Aboriginal heritage permits
38. Cancellation and suspension of Aboriginal heritage permits
39. Replacement of Aboriginal heritage permits
40. Extent of issuing authority powers
41. Appeal rights
PART 5 - MANAGEMENT PLANS
42. Mandatory management plans
43. Exemption from mandatory management plan requirements
44. Voluntary management plans
45. Who may prepare management plans?
46. Notification of proposed management plans
47. Preparation requirements for management plans
48. Council to evaluate proposed management plans
49. Requirements for Council evaluations
50. Form and content of management plans
51. Applications for approval of management plans by Minister
52. Determination of applications for approval of management plans
53. Registration, &c., of management plans
54. Commencement of management plans
55. Implementation of management plans
56. Variation of management plans
57. Cessation of management plans, &c.
58. Minister to notify external regulators if management plan
required
59. Requirement for management plans to be approved ahead of
other statutory authorisations
60. Discontinuation of management plan preparations
61. Appeal rights
PART 6 - EXTERNAL REGULATORY APPROVALS
62. Application of Part
3
63. Application of Planning Act expressions
64. Application of Planning Act, &c., to regulated land activities is
subject to this Part
65. Legal status of regulated land activities for Planning Act, &c.
66. Application of section 57(3) of Planning Act
67. Regulated land activities require Aboriginal heritage approval
68. External application to be sent to and considered by Minister
69. Procedure if Minister requires additional information to consider
external application
70. Procedure if Minister has no interest in external application
under Planning Act
71. Procedure if Minister has no interest in external application
under Water Management Act
72. Procedure if Minister wishes to be involved in determining
external application
73. Amendment of external applications
74. Correction and amendment of external approvals
75. Contravention of Aboriginal heritage conditions
76. Appeals concerning external applications
77. Referral to Minister of certain planning instruments
78. Commission to invite and consider Ministerial representations
on certain dispensations
PART 7 - ABORIGINAL HERITAGE AGREEMENTS
79. Power of Council to enter into Aboriginal heritage agreements
80. Parties to agreements
81. Form of agreements
82. Duration of agreements
83. Variation of agreements
84. Lodgment and registration of agreements, &c.
PART 8 - AUDITS
85. Power of Minister to require audits of certain land activities
86. Audit orders
4
87. Conduct of audits
88. Audit reports
89. Approval or refusal of audit reports
90. Actions following approval of audit reports
91. Action following rejection of audit reports
PART 9 - STOP ORDERS
92. Power of Minister to stop certain land activities
93. Power of authorised officers to stop certain land activities
temporarily
94. Form and content of stop orders and interim stop orders
95. Duration of stop orders and interim stop orders
96. Extension of stop orders
97. Service of stop orders and interim stop orders
98. Revocation of stop orders and interim stop orders
99. Contravention of stop orders and interim stop orders
100. Effect of stop orders on audits
101. Appeal rights
PART 10 - ABORIGINAL HERITAGE PROTECTION ORDERS
102. Power of Minister to issue Aboriginal heritage protection orders
103. Form and content of protection orders
104. Publication of protection orders
105. Duration of protection orders
106. Variation or revocation of protection orders
107. Publication of extension, variation or revocation of protection
orders
108. Consultation on protection orders, &c.
109. Effect of protection orders
110. Contravention of protection orders
111. Appeal rights
5
PART 11 - ABORIGINAL HERITAGE REGISTER
112. The Aboriginal Heritage Register
113. Form of Register
114. Access to Register
115. General public access to registered information
116. General advice on entries in Register
PART 12 - ENFORCEMENT
117. Authorised officers
118. Ex-officio authorised officers
119. Identity cards
120. Power to require name and address
121. Power of seizure
122. Dealing with objects, documents or things seized
123. Power of search and entry
124. Power to require information
125. Power to require persons to leave protected places
126. Power of arrest
127. Obstruction of authorised officers
128. Infringement notices
129. False and misleading statements
130. Offences by bodies corporate
131. Liability of body corporate for offences by officers, &c.
132. Time for instituting summary proceedings
PART 13 - MISCELLANEOUS
133. Service of notices
134. Protection from liability
135. Application procedure
136. Waiver and refund of fees
137. Regulations
138. Status of delegated instruments under Act
6
139. Review of Act
140. Administration of Act
141. Savings and transitional provisions
142. Legislation repealed
143. Legislation revoked
SCHEDULE 1 - MEMBERSHIP OF COUNCIL
SCHEDULE 2 - MEETINGS OF COUNCIL
SCHEDULE 3 - COUNCIL COMMITTEES
SCHEDULE 4 - SAVINGS AND TRANSITIONAL PROVISIONS
SCHEDULE 5 - LEGISLATION REPEALED
SCHEDULE 6 - LEGISLATION REVOKED
7
8
ABORIGINAL HERITAGE PROTECTION BILL
2013
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
12 November 2013
(Brought in by the Minister for Environment, Parks and
Heritage, the Honourable Brian Neal Wightman)
A BILL FOR
An Act to provide for the recognition, protection and
management of Aboriginal heritage, to establish an
Aboriginal Heritage Council, to repeal the Aboriginal
Relics Act 1975, to consequentially amend certain other
legislation and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Aboriginal
Heritage Protection Act 2013.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 73] 9
Aboriginal Heritage Protection Act 2013
Act No. of
s. 3 Part 1 - Preliminary
3. Objects and principles of Act
The objects and principles of this Act are as
follows:
(a) that Aboriginal people are the primary
custodians and knowledge holders of
Aboriginal heritage;
(b) to recognise, provide for and further the
protection of Aboriginal heritage;
(c) to provide for the involvement of the
Aboriginal community in the
management and protection of
Aboriginal heritage;
(d) to promote the management of
Aboriginal heritage as an integral part of
the State's resource management and
planning system;
(e) to establish workable and effective
procedures for the Aboriginal heritage
assessment, conduct and oversight of
land activities and other activities with
regard to Aboriginal heritage impacts;
(f) to provide appropriate sanctions and
penalties to prevent harm to Aboriginal
heritage;
(g) to promote public awareness and
understanding of Aboriginal heritage.
10
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
4. Interpretation
(1) In this Act -
Aboriginal heritage means -
(a) Aboriginal human remains; or
(b) Aboriginal objects; or
(c) Aboriginal sites; or
(d) nominated Aboriginal heritage;
Aboriginal heritage agreement means an
agreement entered into by the Council
under section 79 providing for the
protection or management of Aboriginal
heritage;
Aboriginal heritage assessment means an
assessment to determine the nature,
extent and significance of any Aboriginal
heritage in or on specific land or a
specific area of the State;
Aboriginal heritage condition, in relation to
an external regulatory approval or other
instrument, means a condition, providing
for the protection or management of
Aboriginal heritage, imposed on the
external regulator pursuant to a
notification of the Minister under
section 72(7)(b);
Aboriginal heritage measures, in relation to a
management plan, means measures for
the protection and management of
11
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
Aboriginal heritage and for dealing with
the likely Aboriginal heritage impacts of
the relevant land activity;
Aboriginal heritage permit means an
Aboriginal heritage permit issued under
section 34(1);
Aboriginal heritage responsibility means a
power or other responsibility of an
authorised officer under this Act;
Aboriginal human remains has the meaning
given by section 5;
Aboriginal object has the meaning given by
section 6;
Aboriginal person has the same meaning as in
the Aboriginal Lands Act 1995;
Aboriginal site has the meaning given by
section 7;
affected area, in relation to a land activity,
proposed land activity or restricted
activity, means one or more areas that
are, will be or are likely to be directly
affected by the land activity, proposed
land activity or restricted activity;
appeal rights means appeal rights under
section 41, section 61, section 101 or
section 111;
application day, in relation to a regulated land
activity, means the day on which the
12
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
external regulator receives a valid
external application for an external
regulatory approval to carry out the
regulated land activity;
approved, in relation to a management plan,
means approved under Part 5;
area includes -
(a) an area of land; and
(b) an area of water; and
(c) a natural feature, formation or
landscape; and
(d) an archaeological feature or
deposit; and
(e) an area immediately surrounding
another area referred to in
paragraph (c) or (d), to the extent
that the surrounding area cannot
be separated from the other area
without harming or diminishing
its significance to Aboriginal
people of Tasmania; and
(f) land set aside for the purpose of
enabling Aboriginal human
remains to be re-interred or
otherwise permanently deposited;
and
(g) a building or structure;
13
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
audit means an audit of a controlled land
activity, by reference to Aboriginal
heritage matters, carried out under
Part 8;
auditor means the authorised officer who
carries out an audit;
audit order means an order issued under
section 85(1);
audit report means a report prepared by an
auditor, and given to the Minister, under
section 88(1);
authorised officer means an authorised officer
appointed under section 117;
chairperson means the chairperson of the
Council;
condition includes restriction;
confer includes approve, grant and issue;
controlled land activity means a land activity
carried out under an Aboriginal heritage
permit, management plan or external
regulatory approval, and includes any
part of the controlled land activity;
convict includes find guilty;
Council means the Aboriginal Heritage
Council established under section 14;
Crown land means Crown land within the
meaning of the Crown Lands Act 1976;
14
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
custody includes possession;
dam permit means a permit to undertake dam
works granted under section 157(1)(a) of
the Water Management Act;
development means development within the
meaning of paragraph (a), (b), (c), (d), (e)
or (f) of the definition of development in
section 3(1) of the Planning Act;
discretionary planning permit means a permit
granted under section 57 of the Planning
Act;
enduring protection order means an order
issued under section 102 as an Aboriginal
heritage enduring protection order;
entry means an entry in the Register;
exempt land activity has the meaning given by
section 8;
external application means an application for
an external regulatory approval to carry
out a regulated land activity;
external regulator, in relation to an external
regulatory approval, means the person
authorised to confer that approval;
external regulatory approval means -
(a) a planning permit; or
(b) a dam permit;
15
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
GDA means -
(a) the Geocentric Datum of
Australia (also known as the
"GDA" or "GDA94") as defined
in the Commonwealth Gazette
No. GN 35, 6 September 1995, as
amended from time to time; or
(b) another geodetic reference system
substituted for the Geocentric
Datum of Australia referred to in
paragraph (a) by the
Intergovernmental Committee on
Surveying and Mapping
(established in 1988), as amended
from time to time;
guidelines means guidelines issued by the
Minister under section 20;
harm includes damage, deface, destroy,
conceal and otherwise interfere with, but
does not include an act or omission that
is prescribed by the regulations not to be
included;
high-impact land activity means -
(a) a level 1 activity within the
meaning of the Environmental
Management and Pollution
Control Act 1994 in respect of
which the Director of
Environmental Management has
issued a requirement under
section 24(1) of that Act; or
16
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
(b) a level 2 activity within the
meaning of the Environmental
Management and Pollution
Control Act 1994, other than such
a level 2 activity prescribed by
the regulations as an activity to
which this paragraph does not
apply; or
(c) a major infrastructure project
within the meaning of the Major
Infrastructure Development
Approvals Act 1999; or
(d) a project of regional significance
within the meaning of Division
2A of Part 4 of the Planning Act;
or
(e) a land activity involving the
construction of a dam, within the
meaning of the Water
Management Act 1999, of a
capacity prescribed by the
regulations; or
(f) a land activity involving a
subdivision of land within the
meaning of Part 3 of the Local
Government (Building and
Miscellaneous Provisions) Act
1993, of a kind prescribed by the
regulations; or
(g) a prescribed land activity for this
definition;
17
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
in, in relation to any premises, vehicle or
container, includes on the premises,
vehicle or container;
interim protection order means an order
issued under section 102 as an interim
protection order;
interim stop order means an order issued
under section 93;
issuing authority means -
(a) in relation to an Aboriginal
heritage permit for a restricted
activity referred to in
paragraph (a), (b) or (c) of the
definition of restricted activity in
this section, the Council; and
(b) in relation to an Aboriginal
heritage permit for a particular
restricted activity referred to in
paragraph (f) of the
definition of restricted activity in
this section, the Minister or the
Council, as prescribed in the
regulations in relation to that
particular restricted activity; and
(c) in relation to any other
Aboriginal heritage permit, the
Minister;
land activity, in relation to any land, means -
18
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
(a) any development or use of the
land; or
(b) forest practices, within the
meaning of the Forest Practices
Act 1985, on the land;
magistrate has the same meaning as in the
Magistrates Court Act 1987;
management plan means a plan in respect of
a proposed land activity setting out -
(a) the results of an Aboriginal
heritage assessment of the
affected area; and
(b) the known and likely Aboriginal
heritage impacts; and
(c) the Aboriginal heritage measures,
and other measures, that will
need to be taken;
mandatory management plan means a
management plan required by this Act;
member means a member of the Council;
nominated Aboriginal heritage means an
object or site that is entered in the
Register as nominated Aboriginal
heritage;
nominated object or site means -
(a) an object or site that is the subject
of an application -
19
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
(i) that is made under the
regulations for
registration of the object
or site as nominated
Aboriginal heritage; and
(ii) that has not been finally
determined; or
(b) an object or site in relation to
which -
(i) the Council has
determined to consider,
on its own motion,
whether to recommend
that the object or site be
registered as nominated
Aboriginal heritage; and
(ii) either the Council has not
determined not to make a
recommendation to the
Secretary as to whether or
not the object or site be
registered as nominated
Aboriginal heritage, or the
Secretary has not
determined whether or not
to so register the object or
site;
notify means give notice in writing;
owner has the same meaning as in the
Planning Act;
20
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
parks ranger means -
(a) a ranger within the meaning of
the National Parks and Reserves
Management Act 2002; or
(b) a ranger within the meaning of
the Nature Conservation Act
2002;
person includes a body of persons, whether
corporate or unincorporate;
Planning Act means the Land Use Planning
and Approvals Act 1993;
planning permit means a permit under the
Planning Act;
premises includes any part of the premises;
private land means land owned by a person
other than the Crown;
proponent means -
(a) in relation to a proposed land
activity, the person proposing to
carry out the land activity; and
(b) in relation to a proposed
management plan or a recognised
management plan, the person
proposing to prepare the plan or
to carry out the relevant land
activity; and
21
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
(c) in relation to an approved
management plan, the person
specified in the plan as the
proponent;
protection order means an order issued under
section 102 as an Aboriginal heritage
enduring protection order or an
Aboriginal heritage interim protection
order;
recognised management plan, means a
management plan for which a notice of
intention has been given under
section 46(1)(a);
Register means the Aboriginal Heritage
Register established and maintained
under Part 11;
registered means entered in the Register;
registered Aboriginal object includes an
object that is registered as nominated
Aboriginal heritage;
registered Aboriginal site includes a site that
is registered as nominated Aboriginal
heritage;
regulated land activity means a land activity
that requires external regulatory
approval;
regulations means regulations made and in
force under this Act;
22
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
relevant approval, in relation to a controlled
land activity, means -
(a) for a controlled land activity
carried out under an Aboriginal
heritage permit, that permit; and
(b) for a controlled land activity
carried out under a management
plan, that plan; and
(c) for a controlled land activity
carried out under an external
regulatory approval, that
approval;
relevant decision-maker, in relation to a
statutory authorisation, means -
(a) if the statutory authorisation is an
external regulatory approval, the
external regulator; or
(b) in any other case, the person
having the statutory responsibility
for conferring the statutory
authorisation;
relevant land activity -
(a) in relation to a management plan,
means the land activity in respect
of which the plan is being or has
been prepared; and
(b) in relation to a stop order or
interim stop order, means the
23
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
land activity in respect of which
the order is issued;
relevant planning scheme, in relation to a
regulated land activity, means the
planning scheme in force in the area
where the regulated land activity is
carried out or proposed to be carried out;
relevant regulatory requirements, in relation
to a provision of this Act, means -
(a) such requirements of the
regulations as may apply to the
provision; and
(b) such guidelines as may apply to
the provision;
relevant special planning order, in relation to
a regulated land activity, means the
special planning order in force in the area
where the regulated land activity is
carried out or, if applicable, proposed to
be carried out;
responsibilities means powers, functions and
duties;
responsible person, in relation to a controlled
land activity, means -
(a) for a controlled land activity
carried out under an Aboriginal
heritage permit, the holder of that
permit; and
24
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
(b) for a controlled land activity
carried out under a management
plan, the proponent for that plan
under Part 5; and
(c) for a controlled land activity
carried out under an external
regulatory approval, the person
holding that approval.
restricted activity means -
(a) the carrying out of scientific
research at a registered
Aboriginal site or the removal of
an Aboriginal object from such a
site for the purposes of scientific
research; or
(b) the removal of a registered
Aboriginal object from Tasmania;
or
(c) the sale of a registered Aboriginal
object; or
(d) the disturbance or excavation of
any land for the purposes of
uncovering or discovering
Aboriginal heritage; or
(e) a land activity or other activity
involving, or reasonably likely to
involve, harm to an Aboriginal
object or Aboriginal site; or
25
Aboriginal Heritage Protection Act 2013
Act No. of
s. 4 Part 1 - Preliminary
(f) a land activity or other activity
prescribed by the regulations;
RMPAT means the Resource Management
and Planning Appeal Tribunal
established under the Resource
Management and Planning Appeal
Tribunal Act 1993;
Secretary means the Secretary of the
Department;
sell means -
(a) dispose of by sale, barter or
exchange; or
(b) agree or offer to dispose of by
sale, barter or exchange; or
(c) consign or have custody of on
consignment for the purposes of
sale, barter or exchange; or
(d) advertise or expose for the
purposes of sale, barter or
exchange;
serious ground disturbance means the
disturbance of the topsoil, or a waterway
or the surface rock layer of the ground, in
the course of -
(a) digging, dredging, excavating,
grading or trenching using
mechanical means; or
(b) the ploughing of soil but only if -
26
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 4
(i) the ploughing involves
deep ripping undertaken
with a ripper or subsoil
cultivation tool; or
(ii) is mound ploughing;
significance, of any area, object or other
thing, includes its archaeological,
anthropological, contemporary,
historical, scientific, social and spiritual
significance;
State servant means a State Service officer or
State Service employee;
statutory authorisation means -
(a) an external regulatory approval;
or
(b) a permit, licence, accreditation,
approval or authorisation of any
other kind under any other Act;
stop, in relation to a land activity that a person
is proposing to carry out, means -
(a) not start the proposed land
activity; and
(b) discontinue all preparations for
the proposed land activity;
stop order means an order issued under
section 92;
27
Aboriginal Heritage Protection Act 2013
Act No. of
s. 5 Part 1 - Preliminary
use has the same meaning as in the Planning
Act;
Valuer-General means the person for the time
being holding, or acting in, the office
referred to in section 5 of the Valuation
of Land Act 2001;
voluntary management plan means a
management plan referred to in
section 44;
Water Management Act means the Water
Management Act 1999.
(2) A reference to Tasmania or the State in this Act
is taken to include a reference to Tasmania's
coastal waters.
(3) A note in the text of this Act does not form part
of this Act.
5. Meaning of Aboriginal human remains
In this Act -
Aboriginal human remains means the whole
or any part of the bodily remains of an
Aboriginal person, other than -
(a) a body or bodily remains buried -
(i) in a cemetery, within the
meaning of the Burial and
Cremation Act 2002; or
28
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 6
(ii) in other land as allowed
by, and in accordance
with the permissions
required by, section 41 of
the Burial and Cremation
Act 2002; or
(b) an object made from human hair;
or
(c) an object made from bodily
material, other than human hair,
that is not readily recognisable as
being bodily material; or
(d) any human tissue dealt with in
accordance with the Human
Tissue Act 1985 or any other law
of a State or a Territory or the
Commonwealth relating to the
medical treatment of human
tissue; or
(e) any human tissue lawfully
removed from an Aboriginal
person.
6. Meaning of Aboriginal object
(1) In this Act -
Aboriginal object means -
(a) any object in Tasmania that -
(i) relates to the Aboriginal
occupation of any part of
29
Aboriginal Heritage Protection Act 2013
Act No. of
s. 7 Part 1 - Preliminary
Australia, whether or not
the object existed before
that part of Australia was
occupied by persons of
non-Aboriginal descent;
and
(ii) is of significance to the
Aboriginal people of
Tasmania; or
(b) any object, material or thing in
Tasmania that -
(i) is removed or excavated
from an Aboriginal site;
and
(ii) is of significance to the
Aboriginal people of
Tasmania.
(2) Despite subsection (1), 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
Aboriginal objects for the purposes of this Act.
(3) To avoid doubt, Aboriginal human remains are
not Aboriginal objects for the purposes of this
Act.
7. Meaning of Aboriginal site
In this Act -
Aboriginal site means -
30
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 8
(a) an area of Tasmania that is of
significance to the Aboriginal
people of Tasmania; or
(b) unless the contrary intention
appears, a part of an Aboriginal
site.
8. Meaning of exempt land activity
(1) In this Act, a land activity is an exempt land
activity if -
(a) it is carried out on, in or under an area
declared by an order made under
section 9 to be an exempt area; or
(b) it consists solely of one or more of the
following uses or developments:
(i) the construction, alteration,
maintenance, demolition or
removal of a fence or
freestanding wall;
(ii) the construction, alteration,
maintenance, demolition or
removal of a temporary seating
structure, temporary stage or
temporary platform;
(iii) the carrying out of construction
or maintenance works on, over or
under established transport
infrastructure;
31
Aboriginal Heritage Protection Act 2013
Act No. of
s. 8 Part 1 - Preliminary
(iv) the demolition or removal of
transport infrastructure;
(v) the carrying out of maintenance,
demolition or removal works
associated with a high-impact
land activity;
(vi) the construction of a building
ancillary to an existing dwelling,
or the carrying out of works
ancillary to an existing dwelling,
within an affected area that is not
larger than the maximum size
prescribed by the regulations;
(vii) the construction of a building
ancillary to an existing building
that is not a dwelling, or the
carrying out of works ancillary to
an existing building, that is not a
dwelling within an affected area
that is not larger than the
maximum size prescribed by the
regulations;
(viii) the alteration, maintenance,
subdivision, demolition or
removal of a building;
(ix) the construction of a building of a
kind, and within an affected area
that is not larger than the
maximum size, prescribed by the
regulations;
32
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 8
(x) the installation of service
infrastructure in conjunction with
the construction of a building
referred to in subparagraph (ix);
(xi) the construction of not more than
the maximum number of
dwellings prescribed by the
regulations on one discrete parcel
of land that, under a planning
scheme or special planning order
under the Planning Act, is zoned,
exclusively or otherwise, as
residential;
(xii) the construction of one or more
additional dwellings on one
discrete parcel of land that
already contains one or more
dwellings and that, under a
planning scheme or special
planning order under the
Planning Act, is zoned,
exclusively or otherwise, as
residential if the construction of
the additional dwellings would
not cause the total number of
dwellings on the land to exceed
the maximum number of
dwellings prescribed by the
regulations for the purposes of
subparagraph (xi);
(xiii) the installation of service
infrastructure in conjunction with
the construction of a dwelling
33
Aboriginal Heritage Protection Act 2013
Act No. of
s. 8 Part 1 - Preliminary
referred to in subparagraph (xi) or
(xii);
(xiv) dam works, within the meaning
of the Water Management Act, in
relation to a dam of a kind, or of
a capacity not greater than the
maximum capacity, or both,
prescribed by the regulations;
(xv) the subdivision of land, within
the meaning of Part 3 of the
Local Government (Building and
Miscellaneous Provisions) Act
1993, that comprises not more
than the maximum number of lots
prescribed by the regulations and
that is within an area not larger
than the maximum size
prescribed by the regulations;
(xvi) the construction or installation of
service infrastructure in
conjunction with a subdivision
referred to in subparagraph (xv);
(xvii) the construction, installation,
alteration, replacement,
maintenance, demolition or
removal of, or the carrying out of
such works in relation to, service
infrastructure;
(xviii) the carrying out of works of a
minor nature that are necessarily
34
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 8
ancillary to a land activity
referred to in this subsection; or
(c) it consists of moving on, over or under
land in accordance with an easement,
covenant or right of way permitting that
movement for the purpose of
constructing, installing, altering,
replacing, maintaining, demolishing or
removing, or the carrying out of such
works in relation to, service
infrastructure; or
(d) it is a land activity, or a land activity of a
class, prescribed by the regulations to be
an exempt land activity.
(2) For the purposes of subsection (1) -
maintenance includes repair and
refurbishment;
service infrastructure means -
(a) infrastructure required for -
(i) communications; or
(ii) electricity, gas or water
supplies; or
(iii) sewers or drains; or
(b) a building, structure, road, tower
or other thing prescribed by the
regulations to be infrastructure
required for communications,
35
Aboriginal Heritage Protection Act 2013
Act No. of
s. 8 Part 1 - Preliminary
electricity, gas, water supplies,
sewers or drains;
transport infrastructure means an aerodrome,
railway, road or port, together with its
associated infrastructure including, but is
not limited to -
(a) for an aerodrome - aeronautical
control and safety facilities,
fences, hangars, lighting, fuel
tanks, service infrastructure,
sheds and terminals; and
(b) for a port - cranes and gantries,
jetties and wharves, navigational
control and safety facilities,
service infrastructure, slipways
and storage facilities; and
(c) for a railway - bridges, machine
shops, service infrastructure,
sidings, stations and tunnels; and
(d) for a road - bridges, overpasses
and underpasses, safety barriers
and embankments, service
infrastructure, traffic lights and
signs and street lighting;
works ancillary to an existing dwelling or
existing building includes, but is not
limited to, the construction, alteration,
maintenance, demolition and removal of
driveways, fences, paving, landscaping,
recreational facilities, sheds, garages,
service infrastructure and water tanks.
36
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 8
(3) However -
(a) subsection (1) does not apply to a land
activity if -
(i) the affected area contains
registered Aboriginal heritage;
and
(ii) by reason of the carrying out of
the land activity, there will be, or
is likely to be, a surface
disturbance to the affected area
that has a lasting impact and, if
there was any such previous
surface disturbance to the area, is
different, and additional, to that
previous surface disturbance; and
(b) a land activity that has the status of an
exempt land activity by reason of
subsection (1) loses that status instantly
if, while it is being carried out,
Aboriginal heritage is found in the
affected area; and
(c) subsection (1)(b), (c) and (d) does not
apply to a land activity if -
(i) the affected area is an area that
has been declared by an order
made under section 9 to be an
area of high sensitivity; and
(ii) by reason of the carrying out of
the land activity, there will be, or
is likely to be, a surface
37
Aboriginal Heritage Protection Act 2013
Act No. of
s. 9 Part 1 - Preliminary
disturbance to the affected area
that has a lasting impact and, if
there was any such previous
surface disturbance to the area, is
different, and additional, to that
previous surface disturbance.
9. Declarations of exempt area and area of high
sensitivity
(1) The Governor, on the recommendation of the
Minister, by order, may declare an area to be an
exempt area or an area of high sensitivity.
(2) The Minister may make a recommendation
under subsection (1) on his or her own motion or
on the nomination of the Council or a council.
(3) Before making a recommendation under
subsection (1), the Minister -
(a) is to consult with the Council; and
(b) may consult with such other persons as
the Minister considers appropriate; and
(c) is to give to the council for the municipal
area in which is situated the area that the
Minister intends to recommend to the
Governor be declared an exempt area or
area of high sensitivity written notice
that -
(i) the Minister proposes to make the
recommendation; and
38
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 9
(ii) sets out the Minister's reasons for
proposing to make the
recommendation; and
(iii) informs the council that it may
make written submissions in
respect of the proposed
recommendation to the Minister
within 21 days after it receives
the notice; and
(iv) includes, or is accompanied by, a
draft of the proposed
recommendation; and
(d) is to consider the response to the notice
provided by the council under
subsection (4).
(4) Within 21 days after receiving a notice under
subsection (3)(c), a council must provide to the
Minister a written response that states -
(a) whether or not it supports the
recommendation; and
(b) if it does not support the
recommendations, its reason for not
doing so.
(5) The Minister may not make a recommendation
under subsection (1) until the expiration of the
period of 28 days after the council, or the last of
the councils, has received the notice under
subsection (3)(c).
39
Aboriginal Heritage Protection Act 2013
Act No. of
s. 9 Part 1 - Preliminary
(6) The Minister may not recommend to the
Governor that an area be declared an area of
high sensitivity unless satisfied that -
(a) the area contains registered Aboriginal
heritage; and
(b) is highly likely to contain other
Aboriginal heritage.
(7) An order under subsection (1) -
(a) is not a statutory rule for the purposes of
the Rules Publication Act 1953; and
(b) is to be published in the Gazette.
(8) The Minister is to cause an order under
subsection (1) to be laid before each House of
Parliament within the first 10 sitting-days of the
House after it is published in the Gazette.
(9) An order under subsection (1) is of no effect
until it has been approved by both Houses of
Parliament.
(10) For the purposes of subsection (7), a House of
Parliament is taken to have approved an order
under subsection (1) if a copy of it has been laid
on the table of that House and -
(a) it is approved by that House; or
(b) at the expiration of 15 sitting-days after it
was laid on the table of that House, there
is no notice of a motion to disallow it
before that House; or
40
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 10
(c) if a notice of a motion to disallow it is
given during that period of 15 sitting-
days, the notice is, after the expiration of
that period, withdrawn or negatived.
(11) As soon as practicable after an order under
subsection (1) has taken effect, the Minister is
to -
(a) give written notice of the taking effect of
the order to the Council, the Secretary
and the council for the municipal area in
which the exempt area or area of high
sensitivity is situated; and
(b) advertise, in a newspaper circulating in
the area within which the exempt area or
area of high sensitivity is situated, that
the order has taken effect.
(12) On receipt of a notice under subsection (11)(a),
the Secretary is to enter the order in the Register.
10. Objectives to be taken into account by persons
discharging certain responsibilities under Act
In discharging any responsibilities under this Act
in relation to Aboriginal heritage other than
Aboriginal human remains, a person must take
into account the objectives of the State's
resource management and planning system, and
the planning process, set out in Schedule 1 to the
Planning Act.
41
Aboriginal Heritage Protection Act 2013
Act No. of
s. 11 Part 1 - Preliminary
11. Timing of actions and decisions
(1) In this section -
regulatory authority means -
(a) for a matter concerning a
statutory authorisation, the
relevant decision-maker; or
(b) for any other matter, the Minister,
the Secretary or the Council.
(2) Where a provision of this Act requires or directs
a person to take an action consequent on making
a decision or another occurrence, then, unless the
contrary intention appears, the provision is to be
taken as requiring or directing the person to take
the action as soon as practicable after the making
of the decision or the other occurrence.
(3) Where a provision of this Act requires or directs
a regulatory authority to make a decision in
respect of any matter within a specified period of
time and the period of time includes any days on
which the office of the regulatory authority is
closed during normal business hours, the period
of time is extended by that number of days.
12. Act does not affect operation of certain other Acts
Nothing in this Act affects the operation of the
Burial and Cremation Act 2002, Coroners Act
1995 or Human Tissue Act 1985 in their
application to Aboriginal persons.
42
Aboriginal Heritage Protection Act 2013
Act No. of
Part 1 - Preliminary s. 13
13. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
43
Aboriginal Heritage Protection Act 2013
Act No. of
s. 14 Part 2 - Administration
PART 2 - ADMINISTRATION
Division 1 - Aboriginal Heritage Council
14. Establishment of Aboriginal Heritage Council
(1) The Aboriginal Heritage Council is established.
(2) The Council is part of the State's resource
management and planning system, the objectives
of which are set out in Schedule 1 to the
Planning Act.
(3) The Council -
(a) is a body corporate with perpetual
succession; and
(b) may have a seal; and
(c) may sue and be sued in its corporate
name.
(4) If the Council has a seal -
(a) it is to be kept and used as authorised by
the Council; and
(b) all courts and persons acting judicially
are to take judicial notice of the imprint
of the seal on a document and presume
that it was duly sealed by the Council.
44
Aboriginal Heritage Protection Act 2013
Act No. of
Part 2 - Administration s. 15
15. Membership of Council
(1) The Council consists of not more than 9
members appointed by the Governor on the
nomination of the Minister.
(2) Each nominee is to be an Aboriginal person
who -
(a) is resident in Tasmania; and
(b) has, in the Minister's opinion,
knowledge, experience or expertise
relevant to the Council's functions.
(3) In nominating the members of the Council, the
Minister is to ensure that the members
nominated are broadly representative of the
Tasmanian Aboriginal communities and
Tasmanian Aboriginal persons generally.
(4) To ensure that the Council has a reasonable
gender balance, there are to be no fewer than 2
members of each sex at any time.
(5) The Minister is to appoint a member of the
Council as its chairperson on the
recommendation of the Council.
(6) Schedule 1 has effect with respect to the
membership of the Council.
(7) Schedule 2 has effect with respect to the
meetings of the Council.
45
Aboriginal Heritage Protection Act 2013
Act No. of
s. 16 Part 2 - Administration
16. Functions of Council
The Council has the following functions:
(a) to approve certain management plans;
(b) to recommend to the Minister the
variation of management plans approved
by it;
(c) to determine certain applications for
Aboriginal heritage permits;
(d) to advise the Minister generally or act as
a Ministerial consultant on -
(i) Aboriginal heritage and its
significance; and
(ii) the Aboriginal heritage impacts
of land activities and other
activities; and
(iii) public education and awareness
regarding Aboriginal heritage;
and
(iv) certain Aboriginal heritage
permits; and
(v) certain management plans; and
(vi) the variation of certain
management plans;
(vii) audit orders; and
(viii) protection orders; and
46
Aboriginal Heritage Protection Act 2013
Act No. of
Part 2 - Administration s. 17
(ix) stop orders (including interim
stop orders); and
(x) registration criteria for nominated
Aboriginal heritage;
(e) to assess and make recommendations to
the Secretary on the registration of
objects and sites as nominated
Aboriginal heritage;
(f) to make recommendations to the
Minister on the need for audits and
protection orders;
(g) to make recommendations to the
Minister on such other matters as this
Act provides;
(h) such other functions as it is given by this
or any other Act.
17. Powers of Council
(1) The Council has -
(a) power to do anything necessary or
convenient to be done to perform its
functions; and
(b) such other powers as it is given by this or
other any other Act.
(2) However, the Council may not acquire, hold or
dispose of real property.
47
Aboriginal Heritage Protection Act 2013
Act No. of
s. 18 Part 2 - Administration
(3) Except as provided by this Act or the
regulations, the Council may not acquire, hold or
dispose of personal property.
(4) Except as provided by this Act or the
regulations, the Council may regulate its own
proceedings.
18. Committees
(1) The Council may establish such committees as it
considers necessary or expedient to assist it in
the discharge of its responsibilities or advising it
on any matter relating to this Act.
(2) Schedule 3 has effect with respect to the
membership and meetings of committees.
Division 2 - Miscellaneous
19. Delegation by Minister
The Minister may delegate any of his or her
responsibilities under this Act other than -
(a) this power of delegation; and
(b) the power to make nominations or
appointments under section 15; and
(c) the power to require, or determine
applications for the approval of,
management plans; and
(d) the power to issue protection orders; and
(e) the power to issue guidelines.
48
Aboriginal Heritage Protection Act 2013
Act No. of
Part 2 - Administration s. 20
20. Guidelines
(1) The Minister may issue guidelines in relation to
any one or more of the following:
(a) the administration of this Act;
(b) the protection or management of
Aboriginal heritage;
(c) the investigation and documentation of
Aboriginal heritage;
(d) Aboriginal heritage assessments;
(e) matters prescribed by the regulations.
(2) Without limiting the generality of
subsection (1)(d), guidelines relating to
Aboriginal heritage assessments may provide
for -
(a) differing levels of assessment of
Aboriginal heritage; and
(b) standards and methodologies for carrying
out assessments of Aboriginal heritage;
and
(c) consultation processes; and
(d) supervisory and reporting arrangements;
and
(e) the engagement and use of Aboriginal
heritage consultants, archaeologists and
other relevant experts; and
49
Aboriginal Heritage Protection Act 2013
Act No. of
s. 20 Part 2 - Administration
(f) timetables for Aboriginal heritage
assessments; and
(g) the form and content of Aboriginal
heritage assessments.
(3) The Minister may issue guidelines on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(4) Guidelines -
(a) are to be written in plain language; and
(b) are to be as brief as possible consistent
with their intended application; and
(c) are to follow a standard style and format;
and
(d) may provide for any matter to be
determined by the Minister, Council or
Secretary; and
(e) may be issued so as to apply differently
according to matters, limitations or
restrictions, whether as to time
circumstance or otherwise, specified in
the guidelines; and
(f) may not impose fines or other penalties
for failure to comply with them; and
50
Aboriginal Heritage Protection Act 2013
Act No. of
Part 2 - Administration s. 20
(g) may not contain provisions that are
repugnant to the other provisions of this
Act or the regulations.
(5) Guidelines may adopt, either wholly or in part
and with or without modification, and either
specifically or by reference, any codes,
standards, other guidelines or other documents
relevant to their subject matter, whether or not
those codes, standards, other guidelines or other
documents are published or issued before or
after the day on which this Act or any particular
provision of this Act commences.
(6) A reference in subsection (5) to codes, standards,
other guidelines or other documents includes a
reference to an amendment of those codes,
standards, other guidelines or other documents,
whether the amendment is published before or
after the day on which this Act or any particular
provision of this Act commences.
(7) The Minister may amend or revoke any
guidelines on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(8) Before issuing any guidelines, or amending or
revoking any guidelines, the Minister -
(a) is to consult with the Council, if the
Minister is proceeding on his or her own
motion; and
51
Aboriginal Heritage Protection Act 2013
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s. 20 Part 2 - Administration
(b) is to consult with such other persons as
the Minister thinks fit having regard to
the likely impact of the guidelines, the
amendment or the revocation.
(9) The Minister is to give notice in the Gazette of
the issuance, amendment or revocation of any
guidelines.
(10) The Minister -
(a) may publish guidelines as he or she
thinks fit; and
(b) is to ensure that the public has reasonable
access to guidelines; and
(c) is to ensure that a member of the public
can, on the payment of a reasonable fee
determined by the Minister, purchase a
copy of any guidelines.
(11) A guideline issued, or the amendment or
revocation of a guideline, takes effect on the day
on which notice of the issuance, amendment or
revocation is notified in the Gazette or on such
later day as may be specified in that notice.
52
Aboriginal Heritage Protection Act 2013
Act No. of
Part 3 - Ownership and Protection of Aboriginal Heritage s. 21
PART 3 - OWNERSHIP AND PROTECTION OF
ABORIGINAL HERITAGE
Division 1 - Aboriginal human remains
21. Duty of persons having Aboriginal human remains
at commencement of this section
A person who has possession of any Aboriginal
human remains immediately before the
commencement of this section must -
(a) notify the Aboriginal organisation
approved by the Attorney-General under
section 23(1) of the Coroners Act 1995
of that possession as soon as practicable
after the commencement of this section;
and
(b) hand those remains to that Aboriginal
organisation -
(i) at the time and place; and
(ii) in the manner -
determined by that Aboriginal
organisation.
Penalty: Fine not exceeding -
(a) 50 penalty units for an
individual; or
(b) 100 penalty units for a body
corporate.
53
Aboriginal Heritage Protection Act 2013
Act No. of
s. 22 Part 3 - Ownership and Protection of Aboriginal Heritage
Division 2 - Aboriginal objects and Aboriginal sites
22. Duty of persons having Aboriginal objects at
commencement of this section
(1) A person who owns or has possession of an
Aboriginal object, otherwise than as part of a
public collection, immediately before the
commencement of this section must -
(a) notify the Secretary, in writing, of that
fact within 12 months after the
commencement of this section; and
(b) take reasonable measures to protect the
Aboriginal object.
Penalty: Fine not exceeding -
(a) 50 penalty units for an
individual; or
(b) 100 penalty units for a body
corporate.
(2) On receipt of a notice under subsection (1)(a),
the Secretary is to enter the Aboriginal object in
the Register.
23. Duty of persons finding Aboriginal objects or
Aboriginal sites
(1) This section applies if a person finds a site or
object that the person knows, or reasonably
believes, to be an Aboriginal object or
Aboriginal site.
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Act No. of
Part 3 - Ownership and Protection of Aboriginal Heritage s. 24
(2) The person must report the find to the Secretary
unless the person reasonably believes that -
(a) another person is reporting, or has
reported, the find to the Secretary; or
(b) the Aboriginal object or Aboriginal site
is registered.
Penalty: Fine not exceeding -
(a) 50 penalty units for an
individual; or
(b) 100 penalty units for a body
corporate.
(3) If an Aboriginal object or Aboriginal site is
found in the course of carrying out any works at
a place, the person who is in attendance at that
place and in operational charge of the works at
the relevant time is taken, for the purposes of
this section, to have found the Aboriginal object
or Aboriginal site.
24. Disclosing locations of unregistered Aboriginal
objects or Aboriginal sites
(1) This section applies if an authorised officer
reasonably believes that -
(a) a person knows where an unregistered
Aboriginal object or unregistered
Aboriginal site is located; and
(b) unless the person discloses that
knowledge, the Aboriginal object or
55
Aboriginal Heritage Protection Act 2013
Act No. of
s. 25 Part 3 - Ownership and Protection of Aboriginal Heritage
Aboriginal site will not be able to be
registered.
(2) The authorised officer, either orally or by notice,
may require the person to disclose the location of
the Aboriginal object or Aboriginal site.
(3) The person must comply with the authorised
officer's requirement.
Penalty: Fine not exceeding 20 penalty units.
(4) It is a defence in proceedings for an offence
under subsection (3) if the defendant establishes
that, at the relevant time -
(a) he or she did not know the location of the
relevant Aboriginal object or Aboriginal
site; or
(b) the relevant Aboriginal object or
Aboriginal site was registered; or
(c) information disclosing the location of the
relevant Aboriginal object or Aboriginal
site was already in the public domain; or
(d) the relevant authorised officer already
knew the location of the relevant
Aboriginal object or Aboriginal site; or
(e) the relevant object or site was not an
Aboriginal object or Aboriginal site.
56
Aboriginal Heritage Protection Act 2013
Act No. of
Part 3 - Ownership and Protection of Aboriginal Heritage s. 25
25. Dealing with reported, &c., Aboriginal objects and
Aboriginal sites
(1) This section applies to an Aboriginal object or
Aboriginal site if its finding or location is
reported or disclosed under section 23 or 24.
(2) The Minister, after consulting the Council and
by agreement with the person in possession of
the Aboriginal object or the owner of the land
comprising or containing the Aboriginal site,
may take such action as the Minister considers
necessary or expedient for the -
(a) protection; or
(b) management; or
(c) exhibition; or
(d) scientific or other study or
investigation -
of the Aboriginal object or Aboriginal site.
(3) The Secretary is to enter the Aboriginal object or
Aboriginal site in the Register.
Division 3 - Land and property matters
26. Notification of Aboriginal heritage
(1) This section applies if -
(a) there is registered Aboriginal heritage on
any land; and
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Aboriginal Heritage Protection Act 2013
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s. 27 Part 3 - Ownership and Protection of Aboriginal Heritage
(b) the Secretary reasonably believes that
there may be similar, though
unregistered, Aboriginal heritage on any
adjoining private land.
(2) The Secretary may notify the owner of the
adjoining private land of -
(a) the presence of the Aboriginal heritage;
and
(b) the Secretary's belief that there may be
similar, though unregistered, Aboriginal
heritage on the adjoining private land.
27. Continued enjoyment of private property rights
(1) This section applies if there is an Aboriginal
object or Aboriginal site on the surface of any
land and -
(a) under the tenure on which the land is
held, the owner or occupier of the land is
entitled to the use and enjoyment of the
surface of the land; or
(b) a person is otherwise entitled to the use
and enjoyment of the surface of the land.
(2) Despite the presence of the Aboriginal object or
Aboriginal site, the owner, occupier or other
person is entitled to the use and enjoyment of the
land to the extent that the owner, occupier or
person does not contravene section 29 or 30.
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Aboriginal Heritage Protection Act 2013
Act No. of
Part 3 - Ownership and Protection of Aboriginal Heritage s. 28
28. Acquisition of Aboriginal sites
(1) The Minister may acquire a registered
Aboriginal site for the purposes of this Act if he
or she reasonably believes that -
(a) the site is of exceptional significance to
the Aboriginal people of Tasmania; and
(b) the acquisition is the only way of
protecting or managing the Aboriginal
site.
(2) The Land Acquisition Act 1993 applies to the
acquisition of the Aboriginal site.
(3) However, a person is not entitled to additional
compensation under the Land Acquisition Act
1993 -
(a) for the value of any Aboriginal heritage
on or under the surface of the Aboriginal
site acquired; or
(b) specifically relating to any additional
value of the Aboriginal site acquired
arising from the fact that it is an
Aboriginal site.
Division 4 - Protection of Aboriginal heritage
29. Acts that harm Aboriginal heritage
(1) A person must not harm any Aboriginal heritage
if the person knows that it is Aboriginal heritage.
Penalty: Fine not exceeding -
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Aboriginal Heritage Protection Act 2013
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s. 29 Part 3 - Ownership and Protection of Aboriginal Heritage
(a) 2 000 penalty units for an
individual; or
(b) 10 000 penalty units for a body
corporate.
(2) A person must not harm any Aboriginal heritage
if the person is reckless as to whether it is
Aboriginal heritage.
Penalty: Fine not exceeding -
(a) 1 300 penalty units for an
individual; or
(b) 6 600 penalty units for a body
corporate.
(3) A person must not harm any Aboriginal heritage
if the person is negligent as to whether it is
Aboriginal heritage.
Penalty: Fine not exceeding -
(a) 650 penalty units for an
individual; or
(b) 3 300 penalty units for a body
corporate.
(4) For the purposes of subsections (1), (2) and (3),
it is immaterial whether the Aboriginal heritage
is registered or unregistered.
(5) However, subsections (1), (2) and (3) do not
apply if the relevant harmful act -
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Aboriginal Heritage Protection Act 2013
Act No. of
Part 3 - Ownership and Protection of Aboriginal Heritage s. 30
(a) is sanctioned by an Aboriginal heritage
permit, approved management plan or
external regulatory approval; or
(b) is necessarily incidental to the
preparation of a recognised management
plan, including the associated Aboriginal
heritage assessment; or
(c) is carried out in an emergency under
section 55 of the Electricity Supply
Industry Act 1995; or
(d) is, otherwise, a necessary and
proportionate response to an actual or
impending emergency that threatens
human life or property or threatens to
injure any person; or
(e) is a necessary and proportionate
response, in the circumstances prescribed
by the regulations, to a threat of harm to
Aboriginal heritage; or
(f) occurs in the course of a land activity
done in accordance with the guidelines,
including -
(i) any code, standards or guidelines;
or
(ii) any part of a code, standards or
guidelines -
adopted, or adopted as modified, by the
guidelines.
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s. 30 Part 3 - Ownership and Protection of Aboriginal Heritage
30. Acts likely to harm Aboriginal heritage
(1) A person is guilty of an offence if -
(a) the person does an act that is likely to
harm any Aboriginal heritage; and
(b) the person knows, when doing the act,
that the act is likely to harm Aboriginal
heritage.
Penalty: Fine not exceeding -
(a) 1 300 penalty units for an
individual; or
(b) 6 600 penalty units for a body
corporate.
(2) It is immaterial, for the purposes of
subsection (1), whether the Aboriginal heritage
is registered or unregistered.
(3) However, subsection (1) does not apply if the
harmful act -
(a) is sanctioned by an Aboriginal heritage
permit, approved management plan or
external regulatory approval; or
(b) is necessarily incidental to the
preparation of a recognised management
plan, including the associated Aboriginal
heritage assessment; or
(c) is carried out in an emergency under
section 55 of the Electricity Supply
Industry Act 1995; or
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(d) is, otherwise, a necessary and
proportionate response to an actual or
impending emergency that threatens
human life or property or threatens to
injure any person.
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PART 4 - ABORIGINAL HERITAGE PERMITS
31. Certain activities require Aboriginal heritage
permit
(1) A person must not carry out a restricted activity
unless the person holds an Aboriginal heritage
permit authorising the person to carry out the
restricted activity.
Penalty: Fine not exceeding -
(a) 125 penalty units for an
individual; or
(b) 250 penalty units for a body
corporate.
(2) However, subsection (1) does not apply if the
restricted activity is -
(a) an exempt land activity; or
(b) necessarily incidental to the preparation
of a recognised management plan; or
(c) sanctioned by an approved management
plan or external regulatory approval; or
(d) carried out in an emergency under
section 55 of the Electricity Supply
Industry Act 1995; or
(e) otherwise, a necessary and proportionate
response to an actual or impending
emergency that threatens human life or
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property or threatens to injure any
person; or
(f) a land activity referred to in
paragraph (d), (e) or (f) of the
definition of restricted activity in
section 4(1) and the person, before
carrying out the restricted activity, has
demonstrated to the satisfaction of the
Minister, in accordance with the relevant
regulatory requirements, that -
(i) the affected area has sustained
serious ground disturbance; and
(ii) the serious ground disturbance is,
in extent, total or widespread; and
(iii) the serious ground disturbance
was sustained before the
restricted activity commenced;
and
(iv) the serious ground disturbance
was not caused to gain the benefit
of this exemption.
(3) For the purposes of determining whether or not
he or she is satisfied of the matters specified in
subsection (2)(f), the Minister may consult with
the Council.
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32. Applications for Aboriginal heritage permits
(1) An application for an Aboriginal heritage permit
is to be made to, and lodged with, the issuing
authority in accordance with section 135.
(2) In considering the application, the issuing
authority is to consult -
(a) in the case of the Council, any
Aboriginal persons known by it to have a
particular interest in or knowledge of the
relevant Aboriginal heritage and such
other persons as it thinks fit in the
circumstances; and
(b) in the case of any other issuing authority,
the Council and such other persons as the
issuing authority thinks fit in the
circumstances.
(3) In considering the application, the issuing
authority may -
(a) carry out such consultations and inquiries
as it thinks fit in the circumstances; and
(b) if the restricted activity would affect, or
be carried out on, any land -
(i) require the applicant to carry out
an Aboriginal heritage
assessment for the affected area
for the restricted activity, being
an assessment of such level as the
issuing authority, having regard
to the relevant regulatory
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requirements, thinks fit in the
circumstances; and
(ii) consult relevant land owners; and
(iii) with the permission of relevant
land owners, inspect or arrange
for the inspection of any land in
or adjoining the affected area.
33. Determination of applications for Aboriginal
heritage permits
(1) After considering an application for an
Aboriginal heritage permit made under
section 32, the issuing authority may -
(a) approve the application; or
(b) refuse to approve the application.
(2) However, the application is incapable of being
approved if it concerns -
(a) a restricted activity involving, or likely to
involve, the destruction, disturbance or
relocation of Aboriginal human remains;
or
(b) a restricted activity for which a
management plan is required under
Part 5; or
(c) a restricted activity for which a
recognised management plan that is a
voluntary management plan is being
prepared; or
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(d) a restricted activity for which an external
regulatory approval is required.
(3) In making its determination under
subsection (1), the issuing authority is to have
regard to -
(a) the nature and significance of the
relevant Aboriginal heritage; and
(b) the nature of the restricted activity and its
known and likely Aboriginal heritage
impacts; and
(c) the extent to which any harm to the
relevant Aboriginal heritage could be
minimised; and
(d) the representations made and information
obtained during any consultations
conducted pursuant to section 32(2) or
(3); and
(e) any relevant Aboriginal heritage
assessment; and
(f) the relevant regulatory requirements; and
(g) such other factors as the issuing authority
thinks fit in the circumstances.
Note By virtue of section 10, the issuing authority is also required
to take into account the objectives of the resource
management and planning system, and the planning process,
set out in Schedule 1 to the Planning Act.
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(4) Subject to section 135(3), the application is to be
determined within 42 days after the day on
which it is lodged.
(5) If the issuing authority is the Council and it fails
to determine the application within the 42-day
period referred to in subsection (4) -
(a) the applicant may request the Minister, in
writing, to determine the application; and
(b) the Minister, on receipt of that request,
may determine the application; and
(c) if the Minister proceeds to determine the
application -
(i) the Minister is to notify the
Council of that fact; and
(ii) the Minister is taken to be the
issuing authority and this section
applies to the Minister as the
issuing authority; and
(iii) the Council is not entitled to take
any further action in relation to
the application.
(6) If the issuing authority approves the
application -
(a) the issuing authority is to notify the
applicant of the approval; and
(b) the issuing authority, if it is the Minister
or a person prescribed in the regulations,
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is to notify the Council of the approval;
and
(c) the issuing authority may give such other
private and public notices in the matter as
it thinks fit in the circumstances.
(7) If the issuing authority refuses to approve the
application, the issuing authority -
(a) is to notify the applicant of the refusal,
the reasons for the refusal and the
applicant's appeal rights; and
(b) if the issuing authority is the Minister or
a person prescribed in the regulations, is
to notify the Council of the refusal.
(8) If -
(a) the issuing authority consults the Council
in relation to the application pursuant to
section 32(2); and
(b) the Council submits advice; and
(c) the issuing authority does not follow that
advice in determining the application -
the issuing authority, in the notification given to
the Council under subsection (6) or (7), is to
state the reasons for not following the advice and
is to publish the reasons.
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34. Issue and registration of Aboriginal heritage
permits
(1) If an issuing authority approves an application
for an Aboriginal heritage permit under
section 33(1)(a), the issuing authority is to issue
the Aboriginal heritage permit to the applicant.
(2) On issuing an Aboriginal heritage permit -
(a) the issuing authority is to give an
appropriate notification to the Secretary
for registration purposes; and
(b) on receipt of the notification, the
Secretary is to update the Register
accordingly.
35. Nature of Aboriginal heritage permits
An Aboriginal heritage permit -
(a) is to be in a form approved by the issuing
authority; and
(b) takes effect when it is issued or on such
later day as the issuing authority
specifies in the permit; and
(c) has effect for such period not exceeding
2 years as the issuing authority specifies
in the permit; and
(d) may, on the application of the holder of
the permit made and lodged in
accordance with section 135, be extended
in effect by the issuing authority, once,
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for a period not exceeding that for which
it was originally issued; and
(e) by notice to the issuing authority, may be
surrendered at any time; and
(f) with the consent of the issuing authority,
may be transferred to another person; and
(g) is not transferable to another restricted
activity.
36. Aboriginal heritage permit conditions
(1) An Aboriginal heritage permit may be issued on
such conditions as the issuing authority
determines.
(2) The conditions may be set out in the Aboriginal
heritage permit itself or in an attachment to the
Aboriginal heritage permit.
(3) The holder of an Aboriginal heritage permit
must not -
(a) contravene a condition of the permit; or
(b) cause or allow another person to
contravene a condition of the permit.
Penalty: Fine not exceeding -
(a) 125 penalty units for an
individual; or
(b) 250 penalty units for a body
corporate.
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37. Variations of Aboriginal heritage permits
(1) The issuing authority may vary an Aboriginal
heritage permit at any time on -
(a) the issuing authority's own motion; or
(b) the application of the holder of the
Aboriginal heritage permit made and
lodged in accordance with section 135.
(2) In considering whether to vary an Aboriginal
heritage permit, the issuing authority is to
consult -
(a) in the case of the Council, any
Aboriginal persons known by it to have a
particular interest in or knowledge of the
relevant Aboriginal heritage and such
other persons as it thinks fit in the
circumstances; and
(b) in the case of the Minister or a person
prescribed in the regulations, such
persons (including the Council) as the
issuing authority thinks fit in the
circumstances.
(3) If the issuing authority varies an Aboriginal
heritage permit on its own motion, the issuing
authority is to notify the holder of the Aboriginal
heritage permit of the variation, the reasons for
the variation, when the variation takes effect
and, if the variation makes the Aboriginal
heritage permit more restrictive, the holder's
appeal rights.
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(4) If the issuing authority varies an Aboriginal
heritage permit on the application of the holder
of the Aboriginal heritage permit, the issuing
authority is to notify the holder of the variation
and when the variation takes effect.
(5) If, on receipt of the application of the holder of
the Aboriginal heritage permit, the issuing
authority refuses to vary the Aboriginal heritage
permit, the issuing authority is to notify the
holder of the refusal, the reasons for the refusal
and the holder's appeal rights.
(6) The variation of an Aboriginal heritage permit
takes effect as soon as the holder of the permit is
notified of it or at such later time as the issuing
authority specifies in the notice.
(7) On varying an Aboriginal heritage permit, the
issuing authority may issue the holder of the
permit with fresh permit documentation
incorporating the variations.
(8) If an Aboriginal heritage permit is varied -
(a) the issuing authority is to give an
appropriate notification to the Secretary;
and
(b) on receipt of the notification, the
Secretary is to update the Register
accordingly.
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38. Cancellation and suspension of Aboriginal heritage
permits
(1) The issuing authority may cancel or suspend an
Aboriginal heritage permit if it reasonably
believes that -
(a) the holder of the Aboriginal heritage
permit no longer requires it or can no
longer demonstrate a legitimate need for
it; or
(b) the holder of the Aboriginal heritage
permit has contravened the conditions of
the permit in a material way; or
(c) the holder of the Aboriginal heritage
permit has contravened the provisions of
this Act in a material way; or
(d) the relevant restricted activity is having
unforeseen Aboriginal heritage impacts;
or
(e) the holder of the Aboriginal heritage
permit has given the issuing authority
false or misleading information in
connection with the permit; or
(f) circumstances prescribed by the
regulations exist; or
(g) the cancellation or suspension is merited
on other grounds.
(2) The cancellation or suspension takes effect as
soon as the holder of the Aboriginal heritage
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permit is notified of it by the issuing authority,
or at such later time as the issuing authority, by
the notice, specifies.
(3) The notice of cancellation or suspension is to
specify -
(a) the reasons for the cancellation or
suspension; and
(b) when the cancellation or suspension
takes effect; and
(c) in the case of a suspension, the period of
suspension; and
(d) the appeal rights of the holder of the
Aboriginal heritage permit.
(4) If an Aboriginal heritage permit is suspended -
(a) it is, except for the purposes of
conferring an extension, of no effect
during the period of suspension; but
(b) the issuing authority, by notice to the
holder of the permit, may revoke the
suspension at any time.
(5) If an Aboriginal heritage permit is cancelled or
suspended -
(a) the issuing authority is to give an
appropriate notification to the Secretary;
and
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(b) on receipt of the notification, the
Secretary is to update the Register
accordingly.
(6) A person whose Aboriginal heritage permit has
been cancelled must return it to the issuing
authority within 14 days after the day on which
the person is notified of the cancellation by the
issuing authority.
Penalty: Fine not exceeding 10 penalty units.
39. Replacement of Aboriginal heritage permits
The issuing authority, on receipt of the
prescribed fee, if any, may issue the holder of an
Aboriginal heritage permit with a replacement
Aboriginal heritage permit if satisfied that the
original has been -
(a) stolen, lost or destroyed; or
(b) damaged to a degree that renders it
unsuitable for use.
40. Extent of issuing authority powers
(1) To avoid doubt, an issuing authority is not
entitled to take any action in respect of -
(a) an Aboriginal heritage permit issued by a
different issuing authority; or
(b) an application for an Aboriginal heritage
permit required to be issued by a
different issuing authority.
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(2) An action taken by an issuing authority in
contravention of subsection (1) is void.
41. Appeal rights
(1) In this section -
adverse administrative decision means a
decision of an issuing authority to -
(a) refuse to approve an application
for an Aboriginal heritage permit;
or
(b) impose conditions or particular
conditions on an Aboriginal
heritage permit; or
(c) issue an Aboriginal heritage
permit for a term shorter than that
applied for; or
(d) refuse to extend the term of an
Aboriginal heritage permit; or
(e) refuse to approve an application
to vary an Aboriginal heritage
permit; or
(f) vary an Aboriginal heritage
permit on the issuing authority's
own motion so as to make it more
restrictive; or
(g) cancel or suspend an Aboriginal
heritage permit;
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appeal includes, in its application to the
Magistrates Court (Administrative
Appeals Division), an application for
review;
relevant tribunal means -
(a) for a decision made by the
Council, the Magistrates Court
(Administrative Appeals
Division); or
(b) for a decision made by the
Minister, RMPAT; or
(c) for a decision made by a person
prescribed by the regulations, the
prescribed tribunal.
(2) A person who is aggrieved by an adverse
administrative decision made in respect of the
person under this Part may appeal that decision.
(3) The appeal is to be -
(a) made to the relevant tribunal; and
(b) instituted within 14 days after the day on
which the decision-maker notifies the
person of the adverse administrative
decision.
(4) The relevant tribunal is to hear and determine the
appeal in accordance with -
(a) in the case of RMPAT, the Resource
Management and Planning Appeal
Tribunal Act 1993; and
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(b) in the case of the Magistrates Court
(Administrative Appeals Division), the
Magistrates Court (Civil Division) Act
1992.
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Part 5 - Management Plans s. 42
PART 5 - MANAGEMENT PLANS
42. Mandatory management plans
(1) In this section -
commence, in relation to a land activity,
means to commence, in the affected area
and in accordance with the relevant
regulatory requirements, any physical
works for the land activity other than -
(a) the erection of perimeter security
fencing; or
(b) the clearance of vegetation,
rubbish or hazards from the
surface of the affected area, with
only minimal disturbance of the
topsoil; or
(c) surveying and mapping; or
(d) soil and water testing; or
(e) works associated with the
preparation of a management
plan for the land activity.
(2) A management plan is required for a proposed
land activity if -
(a) the proposed land activity is a high-
impact land activity; or
(b) the regulations impose that requirement;
or
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(c) the Minister, by notice to the proponent,
imposes that requirement.
(3) However, subsection (2) does not apply to a
proposed land activity that -
(a) is an exempt land activity; or
(b) is carried out in an emergency under
section 55 of the Electricity Supply
Industry Act 1995; or
(c) is, otherwise, a necessary and
proportionate response to an actual or
impending emergency that threatens
human life or property or threatens to
injure any person.
(4) If a management plan is required for a proposed
land activity, a person must not commence or
carry out the land activity unless -
(a) a management plan for the land activity
has been approved by the Minister under
section 52; or
(b) a management plan for the land activity
has been approved by the Council under
section 49(8); or
(c) an exemption under section 43 applies to
the land activity.
Penalty: Fine not exceeding -
(a) 250 penalty units for an
individual; or
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(b) 500 penalty units for a body
corporate.
(5) A requirement under subsection (2)(c) may be
imposed on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
43. Exemption from mandatory management plan
requirements
(1) A proposed land activity that would otherwise
require a management plan by virtue of
section 42(2)(a) is exempt from that requirement
if the regulations provide that a management
plan is not required for the proposed land
activity.
(2) A proposed land activity that would otherwise
require a management plan by virtue of
section 42(2)(a), (b) or (c) is exempt from that
requirement if -
(a) the proponent has demonstrated to the
satisfaction of the Minister, in
accordance with the relevant regulatory
requirements, that -
(i) the affected area has sustained
serious ground disturbance; and
(ii) the serious ground disturbance is,
in extent, total or widespread; and
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(iii) the serious ground disturbance
was not caused to gain the benefit
of this exemption; or
(b) the proponent has demonstrated to the
satisfaction of the Minister, in
accordance with the relevant regulatory
requirements, that in the circumstances
there is no need for a management plan.
(3) For the purposes of determining whether or not
he or she is satisfied of the matters specified in
subsection (2)(a) and (b), the Minister may
consult with the Council.
44. Voluntary management plans
The proponent may prepare a management plan
for a proposed land activity even though there is
no requirement to do so.
45. Who may prepare management plans?
(1) A management plan may be prepared by -
(a) the proponent; or
(b) an Aboriginal heritage consultant or
other person on the proponent's behalf.
(2) However, if subsection (1)(b) applies, the
proponent remains responsible for the discharge
of the various requirements of this Part relating
to the preparation of the management plan.
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(3) If, while a management plan is being prepared,
there is a change in the identity of the proponent
for any reason but there is no change in the
nature or scale of the relevant land activity, the
new proponent -
(a) may proceed with the preparation of the
plan; and
(b) is not required, in preparing the plan, to
repeat any process completed by the
former proponent; and
(c) may lodge the plan for approval once it
has been prepared.
46. Notification of proposed management plans
(1) Before commencing the preparation of a
management plan, the proponent must notify the
following persons of the proponent's intention to
prepare the plan:
(a) the Minister;
(b) the Council;
(c) if the relevant land activity requires a
statutory authorisation, the relevant
decision-maker.
(2) The notification is to -
(a) specify the proponent's name and contact
details; and
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(b) specify whether it is a mandatory
management plan or voluntary
management plan; and
(c) describe the relevant land activity; and
(d) identify the affected area; and
(e) specify the proposed methodology for
the associated Aboriginal heritage
assessment; and
(f) specify a day by which, or a period
within which, the plan is expected to be
prepared.
(3) The Minister is to give the proponent written
acknowledgement of the notification under
subsection (1)(a) within 14 days after it is given.
47. Preparation requirements for management plans
(1) In preparing a management plan, the proponent
must carry out an Aboriginal heritage assessment
in respect of the affected area.
(2) The proponent must ensure that the management
plan is prepared, and that the Aboriginal heritage
assessment is carried out, in accordance with -
(a) the requirements of this Part; and
(b) the relevant regulatory requirements.
(3) The management plan is to be prepared within -
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(a) 12 months after the day on which the
Minister is given notification under
section 46(1)(a); or
(b) such longer period as the Minister, on
one occasion during that 12-month
period, may allow the proponent on an
application made and lodged under
section 135.
48. Council to evaluate proposed management plans
(1) The Council elects to evaluate each management
plan of which it has been given notification
under section 46(1)(b) if, within 30 days after
the day on which it is given the notification, it
does not notify the proponent and the Minister
that it has elected not to evaluate the plan.
(2) If the Council elects not to evaluate a
management plan, the proponent may proceed
with its preparation without further reference to
the Council.
49. Requirements for Council evaluations
(1) In this section -
preliminary consultation period means the
45-day period commencing on the day on
which the proponent gives the Council
notice under section 46(1)(b);
supplementary consultation period means -
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(a) the 45-day period commencing
on the day on which the
proponent gives the draft
management plan to the Council
under subsection (6)(a); or
(b) if a longer period is agreed (on
one occasion only) by the
proponent and the Council during
that 45-day period, that longer
period.
(2) This section applies if, under section 48, the
Council elects to evaluate a management plan.
(3) The proponent -
(a) is to make all reasonable efforts to
consult the Council -
(i) with regard to the management
plan during its preparation; and
(ii) with regard to the associated
Aboriginal heritage assessment
before commencing it; and
(b) in carrying out the associated Aboriginal
heritage assessment and preparing the
management plan, is to take into account
any representations made by the Council.
(4) The Council is to make all reasonable efforts to
consult and cooperate with the proponent in the
carrying out of the associated Aboriginal
heritage assessment and the preparation of the
management plan.
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(5) However, if the Council fails to make any
representations under subsection (3) within the
preliminary consultation period, the proponent
may proceed with preparation of the
management plan and the associated Aboriginal
heritage assessment.
(6) Once the proponent has a draft of the
management plan -
(a) the proponent is to give a copy of the
draft to the Council; and
(b) the proponent and Council must
negotiate, and make every reasonable
effort to reach agreement, on the matters
specified in subsection (7)(a) and (b)
within the supplementary consultation
period.
(7) In determining whether to approve the
management plan, the Council is to have regard
to -
(a) the proposed Aboriginal heritage
measures, in particular -
(i) whether the management plan
provides for the relevant land
activity to be carried out in a way
that avoids or (if that is not
possible) minimises harm to
Aboriginal heritage; and
(ii) whether the management plan
makes satisfactory provision for
the protection and management
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of any Aboriginal heritage likely
to be impacted by the relevant
land activity, both during the
carrying out and after the
cessation of the relevant land
activity; and
(b) the measures in the management plan for
managing disputes, delays or other
contingencies that may arise in respect of
the relevant land activity or the plan
itself.
(8) If the proponent and the Council reach
agreement on the matters specified in
subsection (7)(a) and (b) within the
supplementary consultation period, the Council
is to approve the management plan to that effect.
(9) Despite subsection (8), the management plan is
not capable of being approved if -
(a) it has not been prepared substantially in
accordance with the procedural
requirements of this Part and the relevant
regulatory requirements; or
(b) it contains any measures that contravene
section 50(2).
(10) The Council approval is to be put in a separate
instrument to the draft management plan and the
Council is to provide a copy of it to the
proponent.
(11) While the management plan is being prepared,
the Council, without limiting its ability to
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negotiate and reach agreement as required under
subsection (6), may do any one or more of the
following:
(a) consult the proponent about the
associated Aboriginal heritage
assessment;
(b) consult the proponent about the
Aboriginal heritage measures, and other
measures, to be included in the
management plan;
(c) consult persons having an interest in the
affected area or adjoining land or in
relevant Aboriginal heritage;
(d) consult relevant experts;
(e) consult such other persons and
organisations as the Council thinks fit in
the circumstances.
(12) If there is a dispute between the Council and
proponent that could substantially delay the
preparation of the management plan, either party
may refer the dispute to RMPAT for mediation.
(13) RMPAT may mediate a dispute referred to it
under subsection (12).
(14) The referral of a dispute to RMPAT under
subsection (12) does not extend the
supplementary consultation period unless the
Council and proponent agree, in writing, to both
the extension and the period of the extension.
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(15) If the Council and proponent fail to reach
agreement on any matter specified in
subsection (7)(a) and (b) within the
supplementary consultation period or, if
applicable, an extension of that period agreed
under subsection (14), the proponent may
proceed with the preparation of the management
plan without further reference to the Council.
50. Form and content of management plans
(1) A management plan is to -
(a) set out the results of the associated
Aboriginal heritage assessment; and
(b) set out the Aboriginal heritage measures
of the plan; and
(c) comply with the relevant regulatory
requirements.
(2) A management plan is not to contain any
provision that purports to require an owner of
land in the affected area to grant any person
permanent access to that land.
51. Applications for approval of management plans by
Minister
(1) If -
(a) the Council elects not to evaluate a
management plan; or
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(b) although the Council had elected to
evaluate a management plan, the
proponent is proceeding with preparation
of the management plan without further
reference to the Council following a
failure to reach agreement with the
Council as specified in section 49(15) -
the proponent may apply to the Minister for
approval of the management plan.
(2) The application is to be made and lodged in
accordance with section 135 and contain -
(a) a copy of the management plan; and
(b) the associated Aboriginal heritage
assessment and any documentation
prepared or obtained in or for the
purposes of that assessment.
(3) In considering the application, the Minister -
(a) is to consult the Council; and
(b) may consult such other persons as the
Minister thinks fit in the circumstances;
and
(c) with the permission of relevant owners,
may inspect or arrange for the inspection
of any land in or adjoining the affected
area.
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52. Determination of applications for approval of
management plans
(1) This section applies if the Minister receives an
application for the approval of a management
plan.
(2) After considering an application for the approval
of a management plan made under section 51,
the Minister may -
(a) approve the management plan; or
(b) refuse to approve the management plan.
(3) However, the management plan is not capable of
being approved if -
(a) it has not been prepared substantially in
accordance with the procedural
requirements of this Part and the relevant
regulatory requirements; or
(b) it contains any measures that contravene
section 50(2).
(4) In making the determination under
subsection (2), the Minister is to have regard to -
(a) the objects of this Act; and
(b) the results of the Aboriginal heritage
assessment of the affected area carried
out pursuant to section 47; and
(c) if applicable, representations made and
information obtained from consultations
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carried out pursuant to section 51(3)(a)
and (b); and
(d) if applicable, the results of inspections
carried out pursuant to section 51(3)(c);
and
(e) the proposed Aboriginal heritage
measures, in particular -
(i) whether the management plan
provides for the relevant land
activity to be carried out in a way
that avoids or (if that is not
possible) minimises harm to
Aboriginal heritage; and
(ii) whether the management plan
makes satisfactory provision for
the protection and management
of any Aboriginal heritage likely
to be impacted by the relevant
land activity, both during the
carrying out and after the
cessation of the relevant land
activity; and
(f) the measures in the management plan for
managing disputes, delays or other
contingencies that may arise in respect of
the relevant land activity or the plan
itself; and
(g) such other matters as the Minister thinks
fit in the circumstances.
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Note By virtue of section 10, the Minister is also required to take
into account the objectives of the resource management and
planning system, and the planning process, set out in Schedule
1 to the Planning Act.
(5) The Minister is to make the determination under
subsection (2) within 30 days after the day on
which the application for the approval is lodged.
(6) If the Minister approves the management plan,
the Minister is to notify the proponent and the
Council of the approval.
(7) If the Minister refuses to approve the
management plan, the Minister is to -
(a) notify the proponent of the refusal, the
reasons for the refusal and the
proponent's appeal rights; and
(b) notify the Council of the refusal.
(8) If -
(a) the Minister consults the Council
pursuant to section 51(3); and
(b) the Council submits advice; and
(c) the Minister does not follow that advice
in making a determination to approve or
refuse to approve the management plan -
the Minister, in the notification given to the
Council under subsection (6) or (7), is to state
the reasons for not following the advice and is to
publish the reasons.
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53. Registration, &c., of management plans
(1) If the Minister or the Council approves a
management plan, the Minister or Council is to -
(a) give an appropriate notification to the
Secretary for registration purposes; and
(b) give the Secretary a copy of the plan.
(2) On receipt of the notification, the Secretary is to
update the Register accordingly.
54. Commencement of management plans
A management plan takes effect when the
Minister or Council approves it or on such later
day as the Minister or Council specifies in the
approval.
55. Implementation of management plans
(1) In this section -
effective management plan means an
approved management plan that is in
effect;
take, in relation to an action, includes omitting
to take an action.
(2) The proponent for an effective management plan
must ensure that the Aboriginal heritage
measures of the plan are implemented in
accordance with the plan.
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(3) A person must not, in carrying out the relevant
land activity for a management plan -
(a) take an action that contravenes or renders
nugatory an Aboriginal heritage measure
of the plan; or
(b) cause or allow another person to take an
action that contravenes or renders
nugatory an Aboriginal heritage measure
of the plan.
56. Variation of management plans
(1) The Minister may vary a management plan at
any time.
(2) The variation may be effected on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council if the management plan was
approved by the Council under
section 49(8); or
(c) the application of the proponent made
and lodged in accordance with
section 135.
(3) Without limiting what may comprise a variation,
a variation may comprise a change of proponent.
(4) In considering whether to vary a management
plan, the Minister is to consult such persons
(including the Council) as the Minister thinks fit
in the circumstances.
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(5) If the Minister varies a management plan on his
or her own motion or on the recommendation of
the Council, the Minister is to notify -
(a) the Council of the variation; and
(b) the proponent of the variation, the
reasons for the variation, when the
variation takes effect and, if the variation
makes the management plan more
restrictive, the proponent's appeal rights.
(6) If the Minister varies a management plan on the
application of the proponent, the Minister is to
notify the Council, that proponent and, in the
case of a variation of proponent, the new
proponent of the variation and when the
variation takes effect.
(7) If, on receipt of the recommendation of the
Council, the Minister refuses to vary a
management plan, the Minister is to notify the
Council of the refusal and the reasons for the
refusal.
(8) If, on receipt of the application of the proponent,
the Minister refuses to vary a management plan,
the Minister is to notify the proponent and, in the
case of a variation of proponent, the proposed
new proponent of the refusal, the reasons for the
refusal and the first-mentioned proponent's
appeal rights.
(9) The variation of a management plan takes effect
as soon as the proponent is or, in the case of a
variation of proponent, both the proponent and
the new proponent are notified of the variation or
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on such later day as the Minister specifies in the
notice.
(10) If a management plan is varied -
(a) the Minister is to give an appropriate
notification to the Secretary for
registration purposes; and
(b) on receipt of the notification, the
Secretary is to update the Register
accordingly.
57. Cessation of management plans, &c.
(1) An approval of a management plan is valid only
for and in respect of -
(a) the proponent specified in the plan; and
(b) the relevant land activity.
(2) The approval for the management plan and the
management plan cease to have effect -
(a) when the proponent completes the
relevant land activity and all of the
Aboriginal heritage measures of the plan
are fully implemented; or
(b) if the relevant land activity is not
commenced within -
(i) the period of 3 years after the day
on which the plan is approved; or
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(ii) such further period as the
Minister, on one occasion during
that 3-year period, may allow on
the application of the proponent
made and lodged under
section 135 -
when that 3-year period or further period
expires; or
(c) if the proponent commences but for any
reason abandons or is unable to complete
the relevant land activity or fully
implement all Aboriginal heritage
measures; or
(d) if, before the relevant land activity is
completed and all Aboriginal heritage
measures are fully implemented, the
proponent (in the case of an individual) -
(i) dies; or
(ii) becomes bankrupt, applies to take
the benefit of any law for the
relief of bankrupt or insolvent
debtors, compounds with the
proponent's creditors or makes an
assignment of the proponent's
remuneration or estate for their
benefit; or
(e) if, before the relevant land activity is
completed and all Aboriginal heritage
measures are implemented, the proponent
(in the case of a corporation), becomes
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subject to external administration under
the Corporations Act; or
(f) if the Minister, under subsection (3),
revokes the approval, on the day
specified in that revocation.
(3) The Minister, by notice provided to the
proponent for a management plan, may revoke
the approval of that management plan if satisfied
that the proponent has contravened section 55(2)
or (3).
(4) Before revoking the approval for a management
plan, the Minister is to allow the proponent to
make submissions in relation to the matter in the
manner and within the time determined by the
Minister.
58. Minister to notify external regulators if
management plan required
(1) This section applies if -
(a) pursuant to section 42(2)(c), the Minister
requires a management plan for a
proposed land activity; and
(b) the proposed land activity also needs an
external regulatory approval.
(2) On notifying the proponent of the management
plan requirement, the Minister is to notify the
external regulator of -
(a) the imposition, and date, of that
requirement; and
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(b) the proposed land activity; and
(c) the location of the affected area; and
(d) the identity of the proponent; and
(e) such other particulars as the Minister
thinks fit in the circumstances.
59. Requirement for management plans to be approved
ahead of other statutory authorisations
(1) This section applies if -
(a) under section 42(2), a management plan
is required for a proposed land activity
or, under section 44, a voluntary
management plan is being prepared for a
proposed land activity; and
(b) the proposed land activity also needs a
statutory authorisation.
(2) If and when a management plan is approved for
the proposed land activity, the proponent must
give a copy of it to the relevant decision-maker
for the statutory authorisation.
(3) The relevant decision-maker must not confer the
statutory authorisation for the proposed land
activity unless a management plan has been
approved for the proposed land activity.
Note This subsection does not prevent the proponent from applying
for the statutory authorisation before, or at the same time as,
applying for approval of the management plan.
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(4) The relevant decision-maker must not confer the
statutory authorisation for the proposed land
activity if it would be inconsistent with the
approved management plan.
(5) If the relevant decision-maker is required to
make the decision on whether to confer the
statutory authorisation within a certain period,
that period does not commence until the relevant
decision-maker receives the copy of the
approved management plan.
(6) Subsection (5) does not affect any period for
making a decision that is preliminary to the
decision on whether to confer the statutory
authorisation.
(7) This section prevails over any contrary provision
of another Act.
60. Discontinuation of management plan preparations
(1) In this section -
associated documents includes photographs,
maps, site records, draft Aboriginal
heritage assessments and draft plans;
discontinue, in relation to the preparation of a
management plan, does not include the
discontinuation of the preparation of the
plan by a proponent if another person
agrees to be the proponent for the plan
and continue with its preparation.
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(2) If a proponent, for any reason, decides to
discontinue the preparation of a management
plan, the proponent must, within 14 days after
making the decision -
(a) notify the Minister of the decision; and
(b) give all of the associated documents
relating to the preparation of the plan, or
copies of those documents, to the
Minister.
Penalty: Fine not exceeding 20 penalty units.
61. Appeal rights
(1) In this section -
adverse administrative decision means -
(a) a decision of the Minister to
refuse to approve a management
plan; or
(b) a decision of the Minister to
refuse to approve an application
to vary a management plan; or
(c) a decision of the Minister to vary
a management plan so as to make
the plan more restrictive; or
(d) a decision of the Minister to
revoke the approval of a
management plan.
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(2) A person who is aggrieved by an adverse
administrative decision made in respect of the
person under this Part may appeal that decision.
(3) The appeal is to be -
(a) made to RMPAT; and
(b) lodged within 14 days after the day on
which the decision-maker notifies the
person of the adverse administrative
decision.
(4) RMPAT is to hear and determine the appeal in
accordance with the Resource Management and
Planning Appeal Tribunal Act 1993.
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PART 6 - EXTERNAL REGULATORY APPROVALS
62. Application of Part
This Part -
(a) applies if a person proposes to carry out,
or carries out, a regulated land activity
and a mandatory management plan is not
required in relation to that regulated land
activity; but
(b) does not apply if the person has an
approved voluntary management plan in
relation to that regulated land activity.
63. Application of Planning Act expressions
Unless the contrary intention appears in this Part,
expressions that are defined in the Planning Act
and used in this Part have, as they pertain to that
Act, and apart from the expression "works ", the
same meaning in this Part as they have in that
Act.
64. Application of Planning Act, &c., to regulated land
activities is subject to this Part
The provisions of this Part prevail, to the extent
of any inconsistency, over the provisions of -
(a) the Planning Act and any planning
scheme or special planning order, or
planning directive, in force under that
Act; and
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(b) the Water Management Act and any dam
permit in force under that Act.
65. Legal status of regulated land activities for
Planning Act, &c.
(1) This section applies to a regulated land activity
for which an external regulatory approval under
the Planning Act is required.
(2) For all purposes -
(a) a regulated land activity is taken to be a
development under the Planning Act; and
(b) the relevant planning scheme or relevant
special planning order, if it does not do
so, is taken to require a permit for that
development; and
(c) the relevant planning scheme or relevant
planning order, if it does not do so, is
taken to specify that development as
being of a kind which a planning
authority has a discretion to refuse or
permit.
66. Application of section 57(3) of Planning Act
(1) This section applies if an external application is
an application for a planning permit made in
relation to a regulated land activity.
(2) In the case of an application for a planning
permit that, but for section 65(2), would not be
an application for a permit to which section 57
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of the Planning Act applies, the external
regulator must not give, or require the applicant
to give, a notice under section 57(3) of the
Planning Act.
(3) In the case of an application for a planning
permit to which section 57 of the Planning Act
applies regardless of section 65(2) of this Act -
(a) the external regulator must not give, or
require the applicant to give, a notice
under section 57(3) of the Planning Act
until the first of the following occurs:
(i) the planning authority has
received notice under
section 68(4) of this Act as to
whether the Minister has no
interest in the application for a
permit or wishes to be involved
in the determination of the
application;
(ii) the period allowed under this Act
for that Minister to give that
notice to the planning authority
has elapsed; and
(b) if the Minister has so notified the
planning authority that he or she wishes
to be involved in determining the
application, the external regulator must
not give, or require the applicant to give,
a notice under section 57(3) of the
Planning Act that includes any
information that the Minister, in that
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notification, has stated must not be
included in such a notice under section
57(3) of the Planning Act.
67. Regulated land activities require Aboriginal
heritage approval
(1) A person must not carry out a regulated land
activity unless the regulated land activity has
Aboriginal heritage approval.
Penalty: Fine not exceeding -
(a) 125 penalty units for an
individual; or
(b) 250 penalty units for a body
corporate.
(2) For the purposes of subsection (1), a regulated
land activity is taken to have Aboriginal heritage
approval if, and only if -
(a) in a case of a regulated land activity that
requires a discretionary planning permit,
that discretionary planning permit has
been conferred for the regulated land
activity in accordance with the Planning
Act and this Part; or
(b) in a case of a regulated land activity that
requires a dam permit, that permit has
been conferred for the regulated land
activity in accordance with the Water
Management Act and this Part.
(3) However, subsection (1) does not apply if -
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(a) the regulated land activity is an exempt
land activity; or
(b) the regulated land activity is necessarily
incidental to the preparation of a
recognised management plan; or
(c) the regulated land activity is sanctioned
by a management plan; or
(d) the regulated land activity is carried out
in an emergency under section 55 of the
Electricity Supply Industry Act 1995; or
(e) the regulated land activity is, otherwise, a
necessary and proportionate response to
an actual or impending emergency that
threatens human life or property or
threatens to injure any person; or
(f) the person has demonstrated to the
satisfaction of the Minister, in
accordance with the relevant regulatory
requirements, that -
(i) the affected area has sustained
serious ground disturbance; and
(ii) the serious ground disturbance is,
in extent, total or widespread; and
(iii) the serious ground disturbance
was sustained before the
regulated land activity
commenced; and
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(iv) the serious ground disturbance
was not caused to gain the benefit
of this exemption.
(4) For the purposes of determining whether or not
he or she is satisfied of the matters specified in
subsection (3)(f), the Minister may consult with
the Council.
68. External application to be sent to and considered by
Minister
(1) In this section -
relevant period means -
(a) 7 days after the day on which the
Minister receives an external
application if the external
application is a planning permit;
or
(b) 14 days after the day on which
the Minister receives an external
application if the external
application is a dam permit.
(2) This section applies if a person makes an
external application.
(3) The external regulator must give a copy of the
external application to the Minister as soon as
practicable (and in any event within 5 days) after
the application day.
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(4) Within the relevant period, the Minister is to
consider the external application and notify the
external regulator that -
(a) the Minister has no interest in the
application; or
(b) the Minister wishes to be involved in
determining the application.
(5) If -
(a) the Minister notifies the external
regulator that he or she wishes to be
involved in determining the external
application; and
(b) the external application is an application
for a planning permit -
the Minister is to state in the notification that the
information contained in, or which accompanied,
the external application, and which is identified
in the notification must not be included in a
notice given by the applicant or the external
regulator under section 57(3) of the Planning
Act.
(6) If the Minister notifies the external regulator that
he or she wishes to be involved in determining
the external application, the Minister may state
in the notification that, to further consider the
external application under section 72, he or she
requires the additional information specified in
the notification.
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(7) Without limiting the additional information that
the Minister may require under subsection (6),
the Minister may require the results of an
Aboriginal heritage assessment undertaken for
the affected area.
(8) If the Minister notifies the external regulator that
he or she wishes to be involved in determining
the external application and the external
application is an application for a dam permit,
the external regulator must notify the Minister,
for the purposes of paragraph (b) of the
definition of relevant period in section 72(1), of
the day by which the Minister is to notify the
external regulator of his or her determination
under section 72(7).
69. Procedure if Minister requires additional
information to consider external application
(1) This section applies if, in respect of an external
application, the Minister gives the external
regulator a notification under section 68(4)
stating that the Minister requires the additional
information specified in the notification.
(2) As soon as practicable after receiving the
notification referred to in subsection (1), the
external regulator must require the applicant to
provide it with the additional information
required by that notification.
(3) For the purposes of subsection (2), the external
regulator -
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(a) in the case of an external application for
a discretionary planning permit, is to use
its power under section 54 of the
Planning Act; and
(b) in the case of an external application for
a dam permit, is to use its power under
section 154 of the Water Management
Act.
(4) As soon as practicable after receiving the
additional information, the external regulator
must give it to the Minister.
(5) As soon as practicable after receiving the
additional information from the external
regulator (and in any event within any period
within which the external regulator is required to
do or determine anything after receiving the
additional information), the Minister must notify
the external regulator as to whether or not he or
she is satisfied that the additional information
answers the requirement in the notification
referred to in subsection (1).
(6) For the purposes of section 54 of the Planning
Act and any provision of the Water Management
Act that requires the external regulator or
another person to be satisfied that the additional
information answers the requirement for
additional information, the external regulator or
other person is satisfied that the additional
information answers the requirement for
additional information when, and only when,
notified by the Minister that he or she is so
satisfied.
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70. Procedure if Minister has no interest in external
application under Planning Act
(1) This section applies if, in respect of an external
application for a discretionary planning permit -
(a) the Minister gives the external regulator
notification under section 68(4)(a) that
the Minister has no interest in the
application; or
(b) the Minister fails to give the external
regulator a notification of any kind under
section 68(4) within the period that
section requires.
(2) Section 65(2) ceases to apply in relation to the
regulated land activity to which the external
application relates (the relevant regulated land
activity).
(3) If, but for section 65(2), no planning permit
(discretionary or otherwise) in respect of the
relevant regulated land activity would have been
required under the Planning Act -
(a) the external application is taken to have
been withdrawn; and
(b) the external regulator is to notify the
applicant and the Minister that an
external regulatory approval is not so
required and that the external application
is taken to have been withdrawn.
(4) If, but for section 65(2), no discretionary
planning permit would have been required in
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respect of the relevant regulated land activity
under the Planning Act but another planning
permit in respect of the relevant regulated land
activity would have been so required, the
external application is taken to be an external
application made under the appropriate section
of the Planning Act for that other planning
permit and the external regulator is to -
(a) determine the external application under
the appropriate provisions of Division
2A of Part 3, or Division 2 of Part 4, of
the Planning Act; and
(b) once it has determined the external
application, notify the Minister of its
determination.
(5) If a discretionary planning permit is required
under the Planning Act in respect of the relevant
regulated land activity regardless of the
operation of section 65(2), the external regulator
is to -
(a) determine the external application under
the appropriate provision of Division 2A
of Part 3, or Division 2 of Part 4, of the
Planning Act; and
(b) once it has determined the external
application, notify the Minister of that
determination.
(6) The Minister is not entitled to -
(a) make representations under the Planning
Act in relation to the withdrawal of the
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external application by reason of
subsection (3)(a) or the determination of
the external application (whether as an
application for a discretionary planning
permit or as an application for another
planning permit) pursuant to
subsection (5)(a) or subsection (4)(a); or
(b) take any other action in relation to the
external application.
71. Procedure if Minister has no interest in external
application under Water Management Act
(1) This section applies if, in respect of an external
application for a dam permit -
(a) the Minister gives the external regulator
notification under section 68(4)(a) that
the Minister has no interest in the
application; or
(b) the Minister fails to give the external
regulator a notification of any kind under
section 68(4) within the period that
section requires.
(2) The external regulator may determine the
external application without further reference to
the Minister.
(3) The Minister is not entitled to -
(a) make representations in relation to the
external application; or
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(b) take any other action in relation to the
external application.
(4) Once it has determined the external application,
the external regulator is to notify the Minister of
its determination.
72. Procedure if Minister wishes to be involved in
determining external application
(1) In this section -
relevant period means -
(a) in relation to an external
application that is an application
for a planning permit -
(i) in a case where the
Minister has not given the
external regulator
notification under
subsection (4) that he or
she requires an extra 14
days to consider the
external application, the
period of 35 days after the
application day if the
external application is
made under the Planning
Act; or
(ii) in a case where the
Minister has given the
external regulator
notification under
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subsection (4) that he or
she requires an extra 14
days to consider the
external application, the
period of 49 days after the
application day; or
(b) in relation to an external
application that is an application
for a dam permit, the period
ending on the relevant day
specified in the notice provided to
the Minister by the external
regulator under section 68(8).
(2) This section applies if, in respect of an external
application, the Minister gives the external
regulator notification under section 68(4)(b) that
the Minister wishes to be involved in the
determination of the application.
(3) The Minister is to further consider the external
application and in so doing -
(a) is to have regard to the known and likely
Aboriginal heritage impacts of the
proposed regulated land activity; and
(b) is to have regard to the representations
made in respect of the application, if any,
that are relevant to the Minister's own
particular responsibilities; and
(c) may have regard to any other
representations made in respect of the
application; and
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(d) is to have regard to any matters
prescribed by the regulations; and
(e) is to have regard to the objects of this
Act and any relevant guidelines; and
(f) may liaise with the external regulator;
and
(g) may liaise with the Council.
Note By virtue of section 10, the Minister is also required to take
into account the objectives of the resource management and
planning system, and the planning process, set out in Schedule
1 to the Planning Act.
(4) As soon as practicable after the application day
in relation to an external application that is an
application for a planning permit, the Minister
may notify the external regulator that he or she
requires an extra 14 days to consider the external
application, in which case -
(a) the external regulator is to notify the
applicant of the Minister's requirement;
and
(b) if the Minister has liaised with the
Council under subsection (3)(g), the
Minister is to give a copy of the
notification to the Council.
(5) As soon as practicable after receiving a
representation in relation to the external
application, the external regulator must give a
copy of the representation to the Minister.
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(6) As soon as practicable after an external regulator
agrees to, or confers, an extension of the period
within which the external regulator must
determine an external application that is an
application for a planning permit, the external
regulator must notify the Minister of the
extension.
(7) Before the relevant period expires, the Minister
is to notify the external regulator that -
(a) the Minister consents to the external
regulatory approval being conferred; or
(b) the Minister consents to the external
regulatory approval being conferred
subject to the conditions specified in the
notification; or
(c) the external regulatory approval should
be refused.
(8) If the Minister has liaised with the Council under
subsection (3)(g), the Minister is to give a copy
of the notification under subsection (7) to the
Council.
(9) For the purposes of subsection (7)(b), the
Minister may, without limiting his or her
discretion, specify conditions that provide for -
(a) the regulated land activity to which the
external application relates to be carried
out in a way that avoids or (if that is not
possible) minimises harm to Aboriginal
heritage; and
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(b) the protection and management of any
Aboriginal heritage likely to be impacted
by the regulated land activity to which
the external application relates, both
during the carrying out and after the
cessation of the regulated land activity.
(10) If the Minister consents under subsection (7)(a)
to the external application being granted or the
Minister fails to give the external regulator a
notification of any kind under subsection (7)
within the relevant period -
(a) the external regulator may determine the
external application without further
reference to the Minister; and
(b) the Minister is not entitled to take any
further action in relation to the external
application.
(11) If the Minister consents under subsection (7)(b)
to the external application being granted subject
to the conditions specified in the notification
under that subsection (the Aboriginal heritage
conditions) and the external regulator confers
the external regulatory approval -
(a) the external regulator must do so subject
to (at least) the Aboriginal heritage
conditions; and
(b) the external regulator must not make the
external regulatory approval subject to a
condition that conflicts with any of the
Aboriginal heritage conditions; and
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(c) the external regulator or any other person
with responsibilities under the Planning
Act or Water Management Act for
overseeing or enforcing an external
regulatory approval is not required or
entitled to exercise any power under this
Act, the Planning Act or the Water
Management Act to enforce the
Aboriginal heritage conditions unless the
Minister and the external regulator agree
otherwise, in writing.
(12) If the Minister under subsection (7)(c) notifies
the external regulator that the external
application should be refused, the external
regulator must refuse to confer the external
regulatory approval.
(13) On determining the external application, the
external regulator must notify the Minister, in
writing, of the determination.
(14) For the purposes of subsection (13), a reference
to the determination of the external application
includes a reference to the withdrawal of the
external application.
(15) If the external regulator confers the external
regulatory approval, it must give a copy of the
approval -
(a) to the Minister; and
(b) if the Minister has liaised with the
Council under subsection (3)(g), to the
Council; and
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(c) to the Secretary.
(16) On receipt of an approval under
subsection (15)(c), the Secretary is to enter the
approval in the Register.
73. Amendment of external applications
(1) This section applies if an external regulator
receives a request pursuant to section 155B of
the Water Management Act to amend an external
application for a dam permit.
(2) If the Minister has not given the external
regulator notification under section 68(4) as to
whether he or she has no interest in the external
application or wishes to be involved in
determining the external application and the 7-
day period for giving that notification has not
ended -
(a) the external regulator may amend or
refuse to amend the external application
without reference to the Minister; and
(b) if the external regulator so amends the
external application -
(i) the external regulator is to
immediately notify the Minister,
in writing, of the amendment and
give the Minister a copy of the
amendment or the external
application as amended; and
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(ii) section 68(4) and this Part applies
to the external application, as
amended, as if the Minister had
received a copy of the external
application, with the amendment
incorporated, on the day on
which the Minister receives the
copy of the amendment or the
external application as amended
under subparagraph (i).
(3) If the Minister has given notification under
section 68(4)(a) that the Minister has no interest
in the external application or has failed to give
the external regulator any notification under
section 68(4) within the period that section
requires, the external regulator may amend or
refuse to amend the external application without
further reference to the Minister.
(4) If the Minister has given notification under
section 68(4)(b) that the Minister wishes to be
involved in the determination of the external
application, the external regulator, before
amending the external application, must -
(a) consult the Minister; and
(b) have regard to any representations made
by the Minister pursuant to that
consultation.
(5) However, the external regulator is not obliged to
comply with subsection (2) or (4) if it reasonably
determines that the amendment will have no
Aboriginal heritage impacts.
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74. Correction and amendment of external approvals
(1) This section applies if -
(a) pursuant to section 55 or 56 of the
Planning Act, an external regulator
intends to make any correction or minor
amendment of a discretionary planning
permit; or
(b) pursuant to section 161 or 162 of the
Water Management Act, an external
regulator intends to make any correction
or amendment of a dam permit -
and the Minister has given notice under
section 72(7)(a) or (b) that the Minister consents,
or consents subject to the conditions specified in
the notification, to the conferral of the
discretionary planning permit or dam permit.
(2) Before making the correction or amendment, the
external regulator must -
(a) consult the Minister; and
(b) have regard to any representations made
by the Minister pursuant to that
consultation.
(3) However, the external regulator is not obliged to
comply with subsection (2) if it reasonably
determines that the correction or amendment will
have -
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(a) no impact on any Aboriginal heritage
condition of the discretionary planning
permit or dam permit; or
(b) no other Aboriginal heritage impacts.
75. Contravention of Aboriginal heritage conditions
A person must not -
(a) contravene an Aboriginal heritage
condition of an external regulatory
approval; or
(b) cause or allow another person to
contravene an Aboriginal heritage
condition of an external regulatory
approval.
Penalty: Fine not exceeding -
(a) 125 penalty units for an
individual; or
(b) 250 penalty units for a body
corporate.
76. Appeals concerning external applications
(1) This section applies in respect of an external
application that is an application for a
discretionary planning permit or a dam permit.
(2) If, in respect of an external application, the
Minister gives the external regulator the
notification under section 68(4)(b) that the
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Minister wishes to be involved in the
determination of the external application and the
applicant consequently lodges an appeal under -
(a) section 61(3) of the Planning Act; or
(b) section 276(1) of the Water Management
Act in relation to a requirement under
section 154 of the Water Management
Act -
the Minister is joined as a respondent to the
appeal.
(3) If, in respect of an external application, the
Minister gives the external regulator the
notification under section 72(7)(a) or (b) that the
Minister consents, or consents subject to the
conditions specified in the notification, to the
conferral of the external regulatory approval, the
Minister is joined as a respondent to any appeal
under -
(a) section 61(4) or (5) of the Planning Act
in relation to the planning permit; or
(b) section 276(1) of the Water Management
Act in relation to the dam permit.
(4) If, in respect of an external application, the
Minister gives the external regulator the
notification under section 72(7)(c) that the
external regulatory approval should be refused
and the external regulatory approval is refused
partly on the grounds of that notification and
partly on other grounds, the Minister is joined as
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a respondent to any appeal in respect of the
refusal under -
(a) section 61(4) of the Planning Act; or
(b) section 276(1) of the Water Management
Act.
(5) If, in respect of an external application, the
Minister gives the external regulator the
notification under section 72(7)(c) that the
external regulatory approval should be refused
and the external regulatory approval is refused
solely because of that notification, the Minister
is the respondent to any appeal in respect of the
refusal under -
(a) section 61(4) of the Planning Act; or
(b) section 276(1) of the Water Management
Act -
and the relevant planning authority is not joined
as a respondent.
(6) If, in respect of an external application, the
Minister gives the relevant planning authority
the notification under section 72(7)(c) that the
external regulatory approval should be refused
and the applicant applies under section 59(3) of
the Planning Act to the Appeal Tribunal, within
the meaning of that Act, the Minister is, for the
purposes of that Act, joined as a respondent to
the application.
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77. Referral to Minister of certain planning
instruments
(1) In this section -
Commission means the Tasmanian Planning
Commission established under the
Tasmanian Planning Commission Act
1997;
planning authority has the same meaning as
in the Planning Act;
planning instrument means -
(a) a planning scheme within the
meaning of the Planning Act; or
(b) a special planning order within
the meaning of the Planning Act;
or
(c) an amendment to such a planning
scheme or such a special planning
order;
planning interest notice means a notification
under subsection (2).
(2) The Minister may notify a planning authority
that its municipal area is an area of planning
interest to the Minister.
(3) However, the Minister may only determine that a
municipal area is an area of planning interest to
the Minister if -
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(a) the Minister has first consulted the
Council; and
(b) the Minister is reasonably of the opinion
that development in the municipal area is
likely to have Aboriginal heritage
impacts.
(4) A planning interest notice is to specify the
requirements imposed on the planning authority
under subsection (5).
(5) Except in respect of circumstances or activities,
prescribed by the regulations, a planning
authority to which a planning interest notice is
given must, on or before the day on which the
exhibition of a draft planning instrument in
respect of land within the planning authority's
municipal area begins under the Planning Act,
notify the Minister -
(a) of the day on which the exhibition of the
draft planning instrument is to begin; and
(b) that the Minister is invited to make
representations under the Planning Act in
relation to the draft planning instrument.
(6) The Minister is to -
(a) notify the Commission and the Council if
he or she gives a planning interest notice
to a planning authority; and
(b) give the Council a copy of any
notification he or she receives under
subsection (5), and consult the Council
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before making any representations
pursuant to paragraph (b) of that
subsection.
(7) If -
(a) the Commission grants or confirms a
planning permit under section 43H of the
Planning Act; and
(b) the planning permit relates to an
application, of a kind referred to in
section 43A of the Planning Act, in
respect of land within a municipal area in
relation to which a notification has been
given to the Commission under
subsection (6)(a); and
(c) the planning permit as so granted or
confirmed is not in accordance with a
representation of the Minister made, in
relation to the application, under the
Planning Act -
the Commission must give the Minister reasons
in writing for granting or confirming a planning
permit that is not in accordance with the
representation.
78. Commission to invite and consider Ministerial
representations on certain dispensations
(1) In this section -
application for dispensation means an
application that -
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(a) is made under section 30P of the
Planning Act for a dispensation
from a local provision of an
interim planning scheme; and
(b) relates to land that is within a
municipal area in relation to
which the Commission has
received a notification under
section 77(6)(a) of a planning
interest notice, within the
meaning of section 77;
Commission means the Tasmanian Planning
Commission established under the
Tasmanian Planning Commission Act
1997.
(2) Within 7 days after receiving an application for a
dispensation, the Commission must -
(a) give the Minister a copy of the
application; and
(b) by notice, invite the Minister to make a
representation under the Planning Act in
relation to the application.
(3) Before making any representations under the
Planning Act in relation to the application for
dispensation, the Minister is to consult the
Council and give it a copy of the application.
(4) If the Minister does make representations under
the Planning Act in relation to the application for
dispensation and Commission determines the
application otherwise than in accordance those
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representations, the Commission is to notify the
Minister of its reasons for so doing.
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PART 7 - ABORIGINAL HERITAGE AGREEMENTS
79. Power of Council to enter into Aboriginal heritage
agreements
(1) The Council may enter into agreements
providing for the protection or management of
Aboriginal heritage.
(2) Without limiting its possible scope, an
Aboriginal heritage agreement may provide for
one or more of the following:
(a) the protection, maintenance or use of an
Aboriginal object;
(b) the protection, maintenance or use of an
Aboriginal site;
(c) the use of, or access to, an Aboriginal
object or Aboriginal site by Aboriginal
persons;
(d) the rehabilitation of an Aboriginal object
or Aboriginal site.
(3) An Aboriginal heritage agreement may confer
rights and obligations on any party to the
agreement.
(4) However, an Aboriginal heritage agreement may
not -
(a) regulate any activity for which an
Aboriginal heritage permit or
management plan is required under this
Act; or
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(b) regulate any activity for which an
external regulatory approval is required if
the land activity also requires Aboriginal
heritage approval under Part 6; or
(c) restrict or permit access to any land
without the consent of its owner and, if
the ownership and occupation of the land
are in separate hands, the occupier.
(5) An Aboriginal heritage agreement that purports
to do any of the things mentioned in
subsection (4) is, to that extent, void and
unenforceable.
(6) An Aboriginal heritage agreement has effect as a
contract binding on the parties to the agreement
and is enforceable accordingly.
(7) An Aboriginal heritage agreement that relates to
an Aboriginal site -
(a) is not a dealing for the purposes of the
Land Titles Act 1980; and
(b) does not attach to the land comprising or
containing the Aboriginal site so as to
bind any subsequent owner of the land.
80. Parties to agreements
(1) The Council may enter into an Aboriginal
heritage agreement with any person.
(2) However, if an Aboriginal heritage agreement
relates to an Aboriginal site, one of the parties to
the agreement must be -
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(a) if the land comprising or containing the
Aboriginal site is Crown land, the
Minister responsible for the
administration of the Crown Lands Act
1976; or
(b) in any other case, the owner of the land
comprising or containing the Aboriginal
site.
81. Form of agreements
(1) An Aboriginal heritage agreement is to be in a
form approved by the Council.
(2) If an Aboriginal heritage agreement relates to an
Aboriginal site, the agreement is to include a
description or map of the boundaries of the
Aboriginal site by reference to its GDA
coordinates.
82. Duration of agreements
(1) An Aboriginal heritage agreement may provide
that it takes effect wholly, or in part, on -
(a) its execution; or
(b) a later specified day; or
(c) the occurrence of a later specified event.
(2) An Aboriginal heritage agreement may provide
that it terminates wholly, or in part -
(a) on a specified day; or
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(b) on the occurrence of a specified event; or
(c) by agreement between the parties.
(3) However, an Aboriginal heritage agreement
relating to an Aboriginal site is taken to
terminate automatically on the sale of the land
comprising or containing that Aboriginal site.
83. Variation of agreements
(1) An Aboriginal heritage agreement may be varied
by agreement between the parties.
(2) A variation of an Aboriginal heritage agreement
is to be in a form approved by the Council.
(3) A variation of an Aboriginal heritage agreement
takes effect on the day specified in the
instrument of variation.
84. Lodgment and registration of agreements, &c.
(1) Within 14 days after entering into or varying an
Aboriginal heritage agreement, the Council is to
lodge a copy of the agreement or variation with
the Secretary.
(2) Within 14 days after becoming aware that an
Aboriginal heritage agreement has been
terminated, the Council is to notify the Secretary
of the termination.
(3) On receipt of the agreement, variation or
notification of termination, the Secretary is to
update the Register accordingly.
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PART 8 - AUDITS
85. Power of Minister to require audits of certain land
activities
(1) The Minister, by order, may require an
authorised officer to carry out an audit of a
controlled land activity if required circumstances
exist.
(2) For the purposes of subsection (1), the required
circumstances exist if the Minister reasonably
apprehends that -
(a) the conditions of the relevant approval
are being materially contravened with
respect to Aboriginal heritage; or
(b) the conditions of the relevant approval
are deficient; or
(c) Aboriginal heritage measures required to
be taken under the relevant approval are
not being taken properly or at all; or
(d) the Aboriginal heritage impacts of the
controlled land activity are greater than
was contemplated when the relevant
approval was conferred; or
(e) the Aboriginal heritage impacts of the
controlled land activity are different from
the impacts contemplated when the
relevant approval was conferred; or
(f) there has been a material change in
circumstances since the relevant approval
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was conferred, with consequent
implications for Aboriginal heritage; or
(g) the relevant approval was conferred on
erroneous premises, with consequent
Aboriginal heritage implications; or
(h) having regard to the objects of this Act, it
would be prudent to audit the controlled
land activity for some other reason.
(3) The audit order may be issued on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(4) If the Minister issues an audit order, the Minister
also must issue a stop order stopping the
controlled land activity.
86. Audit orders
(1) An audit order is to -
(a) be in writing; and
(b) be in a form approved by the Minister;
and
(c) specify the Aboriginal heritage matters
required to be audited; and
(d) specify the name of the authorised officer
who is required to carry out the audit;
and
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(e) specify the period in which, or day by
which, the audit is required to be
completed.
(2) The audit order may -
(a) specify that the services of a specified
consultant or expert be engaged for the
audit; and
(b) contain directions regarding the form and
content of the audit report; and
(c) specify such other matters and contain
such procedural and other directions as
the Minister thinks fit in the
circumstances.
(3) The audit order may not purport to direct the
auditor to make or not make a particular finding.
(4) On issuing the audit order, the Minister is to -
(a) give it to the authorised officer who is
required to carry out the audit; and
(b) give a copy of it to the responsible
person for the controlled land activity;
and
(c) give a copy of it to the Council.
(5) The Minister may give a copy of the order to
such other persons as he or she thinks fit in the
circumstances.
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87. Conduct of audits
An authorised officer who is required by an audit
order to carry out an audit must -
(a) carry out the audit; and
(b) comply with the directions set out in the
audit order.
88. Audit reports
(1) Once an audit has been completed, the auditor is
to -
(a) prepare a report on its outcome; and
(b) give the report to the Minister.
(2) The audit report is to -
(a) be in the form, if any, required by the
relevant audit order; and
(b) identify any contraventions of the
controlled land activity; and
(c) include any matter required to be
included by the relevant audit order.
(3) The audit report may contain any
recommendations the auditor, having regard to
the objects of this Act and the relevant audit
order, thinks necessary or expedient concerning
any one or more of the following matters:
(a) the variation of the relevant approval;
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(b) the continuation or termination of the
relevant approval;
(c) the monitoring of the controlled land
activity;
(d) Aboriginal heritage conditions;
(e) Aboriginal heritage measures;
(f) measures relating to the conduct of the
controlled land activity to avoid or
minimise harm to Aboriginal heritage.
89. Approval or refusal of audit reports
(1) On receipt of an audit report, the Minister is to -
(a) approve the audit report; or
(b) reject the audit report.
(2) The Minister may approve the audit report only
if satisfied that it adequately addresses the
requirements of the relevant audit order.
(3) The Minister is not entitled to reject an audit
report solely on the basis that he or she does not
agree with its findings or recommendations.
90. Actions following approval of audit reports
(1) In this section -
relevant external Act, in relation to an
external regulatory approval, means the
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Act under which that approval was
conferred.
(2) This section applies if the Minister approves an
audit report.
(3) The Minister -
(a) is to notify the auditor, the responsible
person, the Council and the Secretary of
the approval; and
(b) is to give the Secretary a copy of the
audit report; and
(c) may notify such other persons of the
approval as he or she thinks fit in the
circumstances.
(4) On receipt of the notification under
subsection (3)(a), the Secretary is to update the
Register accordingly.
(5) If the audit report recommends the variation of
the relevant approval, the Minister may -
(a) implement that recommendation in
accordance with the applicable procedure
under this Act; or
(b) request, by notice in writing, that the
relevant external regulator implement
that recommendation in accordance with
the applicable procedure under the
relevant external Act.
(6) Subject to the relevant external Act, an external
regulator is to comply with a request of the
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Minister given under subsection (5) and, for that
purpose, the request is taken to be sufficient
grounds for effecting the relevant variation.
(7) The Minister may take such other actions under
this Act consequent on the findings and
recommendations contained in the audit report as
he or she thinks fit in the circumstances.
91. Action following rejection of audit reports
(1) This section applies if the Minister rejects an
audit report.
(2) The Minister may -
(a) take no further action in the matter; or
(b) remit the matter to the auditor (with or
without directions) for remediation and
resubmission; or
(c) by a further audit order, order a fresh
audit in the matter.
(3) The power under subsection (2)(c) may only be
exercised, once, during the 3-month period
following the day of rejection and, if the power
is exercised, no subsequent audit may be ordered
in respect of the same matter in the 24-month
period following the day of the further audit
order.
(4) The Minister -
(a) is to notify the auditor, the responsible
person, the Council and the Secretary of
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the rejection and of any action taken
under subsection (2); and
(b) is to give the Secretary a copy of the
audit report; and
(c) may notify such other persons of the
rejection, and any action taken under
subsection (2), as he or she thinks fit in
the circumstances.
(5) On receipt of the notification under
subsection (4)(a), the Secretary is to update the
Register accordingly.
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PART 9 - STOP ORDERS
92. Power of Minister to stop certain land activities
(1) The Minister, by order, may require a person to
stop a land activity or proposed land activity if
the required circumstances specified in
subsection (2) or (3) exist.
(2) For the purposes of subsection (1), the required
circumstances exist if the Minister issues an
audit order or reasonably apprehends that -
(a) the person is carrying out the land
activity, or proposing to carry out the
proposed land activity, in contravention
of this Act; and
(b) the land activity or proposed land activity
is harming or is likely to harm
Aboriginal heritage; and
(c) Aboriginal heritage cannot be properly
protected unless the land activity or
proposed land activity is stopped.
(3) For the purposes of subsection (1), the required
circumstances exist if the Minister reasonably
apprehends that -
(a) the land activity or proposed land activity
is impacting on or is likely to impact on a
nominated object or site; and
(b) the land activity is harming or likely to
harm the nominated object or site; and
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(c) the nominated object or site cannot be
properly protected unless the land
activity is stopped.
(4) The stop order may be issued on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(5) If the stop order is issued, the Minister is to -
(a) notify the Council accordingly; and
(b) give a copy of the order to the Council
and to the Secretary.
(6) On receipt of the copy of the stop order, the
Secretary is to enter the stop order in the
Register.
93. Power of authorised officers to stop certain land
activities temporarily
(1) An authorised officer, by order, may require a
person to stop a land activity or proposed land
activity temporarily if the required
circumstances specified in subsection (2) or (3)
exist.
(2) For the purposes of subsection (1), the required
circumstances exist if the authorised officer
reasonably apprehends that -
(a) the person is carrying out the land
activity, or proposing to carry out the
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proposed land activity, in contravention
of this Act; and
(b) the land activity is harming or likely to
harm Aboriginal heritage; and
(c) Aboriginal heritage cannot be properly
protected unless the land activity is
stopped; and
(d) the need for the stoppage is urgent and,
in the circumstances, it is not possible or
expedient to refer the matter to the
Minister for possible action under
section 92.
(3) For the purposes of subsection (1), the required
circumstances exist if the authorised officer
reasonably apprehends that -
(a) the land activity or proposed land activity
is impacting on or is likely to impact on a
nominated object or site; and
(b) the land activity is harming or likely to
harm the nominated object or site; and
(c) the nominated object or site cannot be
properly protected unless the land
activity is stopped; and
(d) the need for the stoppage is urgent and,
in the circumstances, it is not possible or
expedient to refer the matter to the
Minister for possible action under
section 92.
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(4) If the interim stop order is issued, the authorised
officer is to -
(a) notify the Minister and the Council
accordingly; and
(b) give a copy of the order to the Minister,
the Council and the Secretary.
(5) On receipt of the copy, the Secretary is to enter
the interim stop order in the Register.
94. Form and content of stop orders and interim stop
orders
(1) A stop order is to -
(a) be in writing; and
(b) be in a form approved by the Minister;
and
(c) identify the relevant land activity and
land; and
(d) identify or describe the Aboriginal
heritage or the nominated object or site in
respect of which the order is issued; and
(e) specify the perceived harm to the
Aboriginal heritage or the nominated
object or site in respect of which the
order is issued; and
(f) state what the order requires.
(2) An interim stop order is to -
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(a) be in writing; and
(b) be in a form approved by the Minister or
the Secretary; and
(c) identify the relevant land activity and
land; and
(d) specify or describe the relevant
Aboriginal heritage or the nominated
object or site in respect of which the
order is issued; and
(e) specify the perceived harm to the
Aboriginal heritage or the nominated
object or site in respect of which the
order is issued; and
(f) state what the order requires.
95. Duration of stop orders and interim stop orders
(1) In this section -
nominated object or site (by Council motion)
means a nominated object or site in
respect of which the Council, on its own
motion, has determined to consider
whether to recommend to the Secretary
that the object or site be registered as
nominated Aboriginal heritage;
nominated object or site (on application)
means a nominated object or site in
respect of which an application has been
made for the registration of the object or
site as nominated Aboriginal heritage.
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(2) A stop order comes into force as soon as it is
served on the affected person (time of service)
and remains in force -
(a) in the case of a nominated object or site
that is a nominated object or site (on
application), until the first of the
following occurs:
(i) the application requesting
registration of the nominated
object or site as nominated
Aboriginal heritage is finally
determined;
(ii) the expiration of the period of 30
days (calculated from the precise
time of service) or such shorter
period as is specified in the order;
or
(b) in the case of a nominated object or site
that is a nominated object or site (by
Council motion), until the first of the
following occurs:
(i) the Council makes the
preliminary registration
determination in accordance with
the regulations if the order comes
into force before that
determination is made and that
determination is not to
recommend to the Secretary that
the object or site be registered as
nominated Aboriginal heritage;
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(ii) the nominated object or site is
registered as nominated
Aboriginal heritage;
(iii) it is finally determined that the
nominated object or site is not to
be registered as nominated
Aboriginal heritage;
(iv) the expiration of the period of 30
days (calculated from the precise
time of service) or such shorter
period as is specified in the order;
or
(c) in any other case, for the period of 30
days (calculated from the precise time of
service) or for such shorter period as is
specified in the order.
(3) An interim stop order -
(a) comes into force as soon as it is served;
and
(b) remains in force for 48 hours (calculated
from the precise time of service) unless
sooner revoked by the Minister.
96. Extension of stop orders
(1) The Minister, by instrument in writing before a
stop order would otherwise cease to be in force,
may extend it, once, for a further period not
exceeding 14 days.
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(2) The Minister is to serve notice of the extension
on the person who is subject to the order.
(3) An interim stop order is not capable of being
extended.
(4) If a stop order is extended -
(a) the Minister is to give an appropriate
notification to the Secretary; and
(b) on receipt of the notification, the
Secretary is to update the Register
accordingly.
97. Service of stop orders and interim stop orders
(1) In this section -
affixed as prescribed means securely affixed
in a conspicuous position (if necessary on
a pole), in a weatherproof form and with
a bright red or bright orange border;
relevant land means the land on which the
land activity, or proposed land activity,
that is the subject of the stop order or
interim stop order is being, or is proposed
to be, carried out;
stop order includes a notice extending the
order
(2) Without limiting section 133 in its application to
stop orders or interim stop orders -
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(a) such an order is also effectively served
on a person if it is affixed as prescribed
on the relevant land; and
(b) such an order is also effectively served
on a body corporate if it is given to a
person who is on the relevant land and
apparently supervising or directing the
relevant land activity or preparations for
the relevant land activity.
(3) The affixing as prescribed of a stop order or
interim stop order on any land, and the
associated entry onto that land, does not
constitute a trespass.
(4) If a stop order or interim stop order is affixed as
prescribed on any land, a person must not move,
remove, deface, destroy or obscure that order
without lawful authority.
Penalty: Fine not exceeding 10 penalty units.
98. Revocation of stop orders and interim stop orders
(1) A stop order may be revoked by the Minister at
any time on his or her own motion or on the
application of the person subject to the order.
(2) An interim stop order may be revoked by -
(a) the authorised officer who issued it; or
(b) the Minister; or
(c) the Secretary -
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at any time on his or her own motion or on the
application of the person subject to the order
(3) If a stop order or interim stop order is revoked,
the Minister or other person who revokes the
order is to -
(a) serve notice of the revocation on the
person who is subject to the order; and
(b) notify the Council.
(4) If a stop order is revoked, the Minister is to
notify the Secretary of the revocation.
(5) If an interim stop order is revoked by a person
other than the Secretary, the person is to notify
the Secretary of the revocation.
(6) On receipt of a notification under subsection (4)
or (5), or on personally revoking an interim stop
order, the Secretary is to update the Register
accordingly.
99. Contravention of stop orders and interim stop
orders
A person must not contravene a stop order or an
interim stop order.
Penalty: Fine not exceeding -
(a) 5 000 penalty units for an
individual; or
(b) 10 000 penalty units for a body
corporate.
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100. Effect of stop orders on audits
Unless it makes specific provision to the
contrary, a stop order or an interim stop order
does not prevent any person from taking any
actions that are necessary or expedient for the
purposes of -
(a) an audit being carried out under and in
accordance with an audit order; or
(b) giving effect to the recommendations of
an audit report that has been approved
under section 89.
101. Appeal rights
(1) In this section -
adverse administrative decision means -
(a) a decision by the Minister to
issue a stop order; or
(b) a decision by an authorised
officer to issue an interim stop
order; or
(c) a decision by the Minister to
extend a stop order;
notified of the relevant decision includes, in
the case of an order, served with the
order.
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(2) A person who is aggrieved by an adverse
administrative decision affecting the person
under this Part may appeal against that decision.
(3) The appeal is to be -
(a) made in writing to RMPAT; and
(b) instituted within 14 days after the person
is notified of the relevant decision.
(4) RMPAT is to hear and determine the appeal in
accordance with the Resource Management and
Planning Appeal Tribunal Act 1993.
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PART 10 - ABORIGINAL HERITAGE PROTECTION
ORDERS
102. Power of Minister to issue Aboriginal heritage
protection orders
(1) The Minister may issue an order for the
protection of a registered Aboriginal object or
registered Aboriginal site if the Minister is
satisfied that -
(a) the Aboriginal people of Tasmania have
a special relationship with the object or
site; and
(b) the protection of the object or site is
essential for the preservation of that
special relationship.
(2) The order may be issued on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(3) The order may be issued as -
(a) an Aboriginal heritage enduring
protection order if the Minister is
satisfied that the registered Aboriginal
object or registered Aboriginal site
requires ongoing protection; or
(b) an interim protection order if the
Minister is satisfied that the registered
Aboriginal object or registered
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Aboriginal site requires temporary
protection.
(4) If an order is issued -
(a) the Minister is to give a copy of it to the
Secretary; and
(b) on receipt of the copy, the Secretary is to
update the Register accordingly.
103. Form and content of protection orders
A protection order is to -
(a) be in a form approved by the Minister;
and
(b) specify whether it is an enduring
protection order or interim protection
order; and
(c) identify the registered Aboriginal object
or registered Aboriginal site in respect of
which it is issued; and
(d) state why it has been issued, including
the nature of the special relationship that
the Aboriginal people of Tasmania have
with that object or site; and
(e) specify the protective measures to be
taken in respect of that object or site; and
(f) specify, if applicable, who is responsible
for taking the protective measures; and
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(g) specify such other matters as the Minister
thinks fit in the circumstances; and
(h) contain the information, if any, required
by the regulations.
104. Publication of protection orders
(1) In this section -
affixed as prescribed means securely affixed
in a conspicuous position (if necessary on
a pole) and in a weatherproof form with a
bright red or bright orange border.
(2) The Minister is to publish a protection order in -
(a) the Gazette; and
(b) at least one daily newspaper published
and circulating generally in Tasmania.
(3) If the protection order requires a person other
than a State servant to take protective measures
in respect of the registered Aboriginal object or
registered Aboriginal site specified in the order,
the Minister must give the person an individual
copy of the order.
(4) The Minister may publish the protection order in
such other ways as the Minister thinks fit in the
circumstances including, without limiting the
Minister's discretion, by causing copies of the
order to be affixed as prescribed on any land
near, or comprising or containing, the registered
Aboriginal object or registered Aboriginal site
specified in the order.
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(5) The affixing as prescribed of a copy of the order
on any land pursuant to subsection (4), and the
associated entry onto that land, does not
constitute a trespass.
(6) If a copy of the order is affixed as prescribed on
any land pursuant to subsection (4), a person
must not move, remove, deface, destroy or
obscure that copy without lawful authority.
Penalty: Fine not exceeding 10 penalty units.
105. Duration of protection orders
(1) An enduring protection order -
(a) comes into force on the day on which it
is published in the Gazette or on such
later day as is specified in the order; and
(b) remains in force until revoked.
(2) An interim protection order -
(a) comes into force on the day on which it
is published in the Gazette or on such
later day as is specified in the order; and
(b) remains in force for a period of 3
months.
(3) The Minister, by notice before an interim
protection order would otherwise expire, may
extend it in force, once, for a further period not
exceeding 3 months.
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(4) An extension of an interim protection order may
be conferred on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council.
(5) If an interim protection order is extended -
(a) the Minister is to give an appropriate
notification to the Secretary; and
(b) on receipt of the notification, the
Secretary is to enter the extension in the
Register.
106. Variation or revocation of protection orders
(1) The Minister, by notice, may vary or revoke a
protection order for any reason the Minister
considers sufficient.
(2) The variation or revocation may be conferred
on -
(a) the Minister's own motion; or
(b) the written recommendation of the
Council; or
(c) the written application, made and lodged
in accordance with section 135, of a
person affected by the order.
(3) If a protection order is varied or revoked -
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(a) the Minister is to give a copy of the
variation or revocation to the Secretary;
and
(b) on receipt of the copy, the Secretary is to
update the Register accordingly.
107. Publication of extension, variation or revocation of
protection orders
(1) In this section -
affixed as prescribed means securely affixed
in a conspicuous position (if necessary on
a pole) and in a weatherproof form with a
bright red or bright orange border.
(2) The Minister is to publish a notice extending,
varying or revoking a protection order in -
(a) the Gazette; and
(b) at least one daily newspaper published
and circulating generally in Tasmania.
(3) If a protection order requires a person other than
a State servant to take protective measures in
respect of the registered Aboriginal object or
registered Aboriginal site specified in the order,
the Minister must give the person individual
notice of the extension, variation or revocation.
(4) The Minister may publish the notice extending,
varying or revoking a protection order in such
other ways as the Minister thinks fit in the
circumstances including, without limiting the
Minister's discretion, by causing relevant notices
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to be affixed as prescribed on any land near, or
comprising or containing, the registered
Aboriginal object or registered Aboriginal site
specified in the order.
(5) The affixing as prescribed of a notice on any
land pursuant to subsection (4), and the
associated entry onto that land, does not
constitute a trespass.
(6) If a notice is affixed as prescribed at any place
pursuant to subsection (4), a person must not
remove, deface, destroy or obscure that notice
without lawful authority.
Penalty: Fine not exceeding 10 penalty units.
108. Consultation on protection orders, &c.
(1) Before issuing, extending, varying or revoking a
protection order, the Minister is to -
(a) consult the Council and any persons
who, to the Minister's knowledge, would
be likely to be affected by the order or its
extension, variation or revocation; and
(b) consider the matters and representations,
if any, arising from those consultations.
(2) For the purposes of subsection (1), the Minister
is to allow at least 14 days for the consultations
and the making of representations.
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109. Effect of protection orders
A protection order has effect according to its
terms despite anything to the contrary in any of
the following:
(a) any other Act or law of the State;
(b) any municipal by-law;
(c) any management plan;
(d) any Aboriginal heritage agreement;
(e) any other agreement.
110. Contravention of protection orders
A person must not contravene a protection order.
Penalty: Fine not exceeding -
(a) 5 000 penalty units for an
individual; or
(b) 10 000 penalty units for a body
corporate.
111. Appeal rights
(1) In this section -
adverse administrative decision means a
decision by the Minister to -
(a) issue a protection order; or
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(b) extend an interim protection
order; or
(c) vary a protection order; or
(d) require, by means of the issue of
a protection order, a person to
take a protective measure in
respect of Aboriginal heritage.
(2) A person who is aggrieved by an adverse
administrative decision affecting the person
under this Part may appeal that decision.
(3) The appeal is to be -
(a) made to RMPAT; and
(b) instituted within -
(i) if the appeal is instituted by a
person who received individual
notice of the adverse
administrative decision under this
Part, 14 days after the person was
given that notice; or
(ii) in any other case, 14 days after
the day on which the adverse
administrative decision was
published in the Gazette.
(4) RMPAT is to hear and determine the appeal in
accordance with the Resource Management and
Planning Appeal Tribunal Act 1993.
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PART 11 - ABORIGINAL HERITAGE REGISTER
112. The Aboriginal Heritage Register
(1) The Secretary is to establish and maintain a
register (the Aboriginal Heritage Register) of
the following:
(a) Aboriginal human remains;
(b) Aboriginal objects, including collections
of Aboriginal objects;
(c) Aboriginal sites;
(d) nominated Aboriginal heritage;
(e) Aboriginal heritage permits;
(f) management plans;
(g) Aboriginal heritage agreements;
(h) stop orders (including interim stop
orders);
(i) protection orders;
(j) audit orders and audit reports under
Part 8;
(k) external regulatory approvals that are
subject to Aboriginal heritage conditions;
(l) orders declaring exempt areas and areas
of high sensitivity made under section 9;
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(m) matters or things prescribed by the
regulations, if any.
(2) The Register may include such other matters as
the Secretary considers necessary or appropriate.
(3) In maintaining the Register and in discharging
other responsibilities under this Part, the
Secretary is to have regard to -
(a) the objects of this Act; and
(b) any relevant registration criteria; and
(c) any relevant guidelines.
(4) Before entering human remains, an object or an
area of Tasmania on the Register, the Secretary
is to be satisfied that the human remains, object
or area are or is Aboriginal human remains, an
Aboriginal object or an Aboriginal site.
113. Form of Register
(1) The Register -
(a) is to be in the form or forms approved by
the Secretary; and
(b) is to contain a separate part for entries
relating to nominated Aboriginal
heritage; and
(c) may consist of more than one document;
and
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(d) is to contain, for each entry, such
identifying, descriptive and other details
as the Secretary considers necessary or
appropriate.
(2) However -
(a) an entry relating to an instrument
referred to in section 112(1)(e), (f), (g),
(h), (i), (j), (k) or (l) is to contain details
of the area in respect of which the
instrument has effect; and
(b) an entry relating to an Aboriginal object
or Aboriginal site is to contain -
(i) a general description of the
Aboriginal object or Aboriginal
site; and
(ii) details of its location by reference
to a plan in the Central Plan
Register or its GDA coordinates,
or both; and
(iii) any associated reports.
(3) The Secretary may amend the Register as he or
she considers necessary or appropriate to
maintain its accuracy and utility and, without
limiting the generality of this, may correct or
update any entry and omit any redundant entry.
(4) The power of the Secretary under subsection (3)
to amend the Register is subject to any
restrictions or prohibitions specified in the
regulations.
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114. Access to Register
(1) In this section -
infrastructure service means -
(a) the transmission, supply or
distribution of electricity; or
(b) the transmission, supply or
distribution of gas by pipeline; or
(c) the provision, supply or
distribution of water or the
provision of infrastructure
relating to the provision, supply
or distribution of water; or
(d) the provision of sewers or drains;
or
(e) the provision of a
communications network; or
(f) the provision of infrastructure
relating to road transport, rail
transport, air transport or water
transport; or
(g) a service, or a service of a class
of services, prescribed by the
regulations to be infrastructure
services.
(2) The Register is not a public register.
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(3) The Council is entitled to have access to the
Register at any time for any purpose related to
the discharge of its responsibilities.
(4) The Secretary, on application and with the
agreement of the Council, may grant any of the
following persons access to the Register but only
for the purposes respectively indicated and to
such extent as the Secretary and the Council,
jointly, consider necessary:
(a) one or more representatives of the
managing authority in relation to Crown
land, for the purposes of managing that
Crown land;
(b) the general manager or an employee of a
council, to enable the council to
discharge its responsibilities within its
municipal area;
(c) an authorised officer, to enable the
authorised officer to discharge the
responsibilities of that office;
(d) a person undertaking research (including
initial research to determine whether the
person should apply for an Aboriginal
heritage permit to undertake scientific
research), for the purpose of obtaining
information relevant to that research;
(e) the Valuer-General, for the purpose of
discharging his or her statutory
responsibilities;
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(f) a State servant, for the purpose of
discharging his or her duty to protect or
manage Aboriginal heritage;
(g) a person who provides an infrastructure
service, for the purposes of establishing
and maintaining infrastructure, and
managing land, required in relation to the
provision of that infrastructure service.
(5) The application is to be made and lodged in
accordance with section 135.
(6) To avoid doubt, subsection (4) does not prevent
the Secretary from refusing to disclose
information to a person specified in that
subsection if the Secretary considers, on the
advice of the Council, that the information is of
such special sensitivity that it ought not to be
disclosed.
(7) To avoid doubt, nothing in this section is to be
taken as preventing the Secretary from -
(a) disclosing registered information to the
Minister; or
(b) disclosing registered information
required by a court, RMPAT or other
tribunal; or
(c) disclosing registered information to the
Director of Public Prosecutions or a law
enforcement agency; or
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(d) granting State servants access to the
Register for administrative purposes
associated with maintaining the Register.
(8) The Secretary, in consultation with the Council,
may establish protocols for granting persons
access to the Register under this section.
115. General public access to registered information
(1) In this section -
management control means any of the
following:
(a) Aboriginal heritage permit;
(b) management plan;
(c) external regulatory approval;
(d) Aboriginal heritage agreement;
(e) stop order;
(f) interim stop order;
(g) protection order;
(h) order under section 9 declaring an
exempt area or an area of high
sensitivity;
synopsis, of the Register, is a version of the
Register that has been edited so as to -
(a) provide information on
Aboriginal heritage in, on or
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under particular land or a
particular area of the State,
including geographic and
mapping information derived
from the Register; and
(b) exclude or neutralise any
information that the Secretary,
after consulting the Council,
considers could be harmful to any
Aboriginal heritage if publicly
disclosed or is of such special
sensitivity that it ought not be
publicly disclosed; and
(c) exclude or neutralise any
information that the Council, by
notice, has specifically
recommended to the Minister or
Secretary not be publicly
disclosed.
(2) To further the objectives of this Act and assist
the Tasmanian public, the Secretary is to -
(a) establish and maintain a synopsis of the
Register in the form of a computer
database; and
(b) make that computer database available
for public inspection by means of the
world wide web.
(3) In the discharge of his or her responsibilities
under subsection (2), the Secretary is to ensure
that a member of the public searching the
computer database can obtain a quick, accurate
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and readily understandable indication as to
which areas of Tasmania contain Aboriginal
heritage and are subject to management controls.
116. General advice on entries in Register
(1) In this section -
representative includes any person who is
acting on behalf of another person.
(2) The Secretary, on application, may advise any
person whether the Register contains an entry in
relation to any area and indicate, in general
terms -
(a) the nature and Aboriginal heritage
significance of the entry; and
(b) what the entry means in terms of the use
or development of the area.
(3) The application is to be made and lodged in
accordance with section 135.
(4) An application made by any of the following
persons and for the purpose respectively
indicated is to be determined within 5 days after
the day on which it is lodged:
(a) an owner, mortgagee or occupier of land,
or a representative of such an owner,
mortgagee or occupier of land, for the
purpose of obtaining information
relevant to the enjoyment, use or
development of that land or dealings
concerning that land;
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(b) a prospective purchaser, mortgagee or
occupier of land, or a representative of
such a purchaser, mortgagee or occupier
of land, for the purpose of obtaining
information relevant to the prospective
enjoyment, use or development of that
land or dealings concerning that land;
(c) a person who is, or a representative of a
person who is -
(i) an applicant for an Aboriginal
heritage permit; or
(ii) a proponent for a recognised
management plan; or
(iii) an applicant for an external
regulatory approval -
for the purpose of obtaining information
relevant to the land to which the
Aboriginal heritage permit, recognised
management plan or external regulatory
approval relates.
(5) An application made -
(a) by a person not referred to in
subsection (4); or
(b) for a purpose not referred to in that
subsection -
is to be determined within 10 days after the day
on which it is lodged.
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(6) However, nothing in this section obliges the
Secretary to disclose registered information, in
full or in part, if -
(a) the Secretary, after consulting with the
Council, considers that the disclosure
could be harmful to any Aboriginal
heritage; or
(b) the Secretary, after consulting with the
Council, considers that the information is
of such special sensitivity that it ought
not be disclosed; or
(c) the Council, by notice, has recommended
to the Minister or Secretary that the
registered information not be disclosed
either -
(i) at all; or
(ii) to the specific applicant or to a
person of a class of which the
applicant is one.
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PART 12 - ENFORCEMENT
117. Authorised officers
(1) The Secretary may appoint a State servant
employed in the Department to be an authorised
officer for the purposes of this Act and the State
servant may hold that office in conjunction with
State Service employment.
(2) The Secretary, with the consent of the Head of
another State Service Agency, may appoint a
State servant employed in that Agency to be an
authorised officer for the purposes of this Act
and the State servant may hold that office in
conjunction with State Service employment.
(3) An authorised officer holds office for such
period and on such conditions as are specified in
the authorised officer's instrument of
appointment.
118. Ex-officio authorised officers
(1) A police officer is, by virtue of his or her office,
authorised to discharge any Aboriginal heritage
responsibility in respect of any part of the State.
(2) A parks ranger in respect of particular land or a
particular part of the State is, by virtue of his or
her status as a parks ranger, authorised to
discharge any Aboriginal heritage responsibility
in respect of that land or that part of the State.
(3) To avoid doubt, if a provision of this Part
provides that it is an offence for a person to do
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or omit to do something with respect to an
authorised officer who is discharging an
Aboriginal heritage responsibility, the person
also commits the offence if he or she does or
omits to do the thing with respect to a police
officer or parks ranger who is discharging that
responsibility pursuant to subsection (1) or (2).
119. Identity cards
(1) The Secretary -
(a) is to issue each authorised officer with an
identity card; and
(b) may issue a person who is a police
officer or parks ranger with an identity
card for use in connection with the
discharge of Aboriginal heritage
responsibilities.
(2) The identity card is to -
(a) specify the name of the person to whom
it is issued; and
(b) contain a photograph of the person to
whom it is issued, taken for the purpose;
and
(c) be signed by the person to whom it is
issued; and
(d) be in a form approved by the Secretary.
(3) An authorised officer must -
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(a) carry his or her identity card at all times
when discharging Aboriginal heritage
responsibilities; and
(b) if requested to do so by any person who
is or may be affected by the discharge of
those responsibilities, produce the
identity card for inspection by that
person.
(4) A police officer discharging Aboriginal heritage
responsibilities must, if practicable, comply with
a request to identify himself or herself by -
(a) producing the identity card, if any, issued
to the police officer under this section; or
(b) stating, orally or in writing, the police
officer's name, rank and place of duty, or
his or her identification number.
(5) A parks ranger discharging Aboriginal heritage
responsibilities must, if practicable, comply with
a request to identify himself or herself by -
(a) producing the identity card, if any, issued
to the parks ranger under this section; or
(b) stating, orally or in writing, the parks
ranger's name.
(6) However, a failure by an authorised officer,
police officer or parks ranger to comply with
subsection (3), (4) or (5) in any instance does not
invalidate the discharge of the relevant
Aboriginal heritage responsibilities.
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(7) The Secretary is to retrieve a person's identity
card if and when the person for any reason loses
the status that required or entitled the person to
be issued with it.
120. Power to require name and address
(1) An authorised officer who reasonably suspects
that a person has committed an offence against
this Act may require the person to state the
person's name and address.
(2) The authorised officer may further require the
person to produce evidence of the correctness of
the stated name or address if the authorised
officer reasonably believes that name and
address to be false.
(3) A person must not, without reasonable excuse,
refuse or fail to comply with a requirement made
of the person under subsection (1) or (2).
Penalty: Fine not exceeding 10 penalty units.
121. Power of seizure
(1) An authorised officer may seize an object from
any person or place if the authorised officer
reasonably believes that -
(a) the object is an Aboriginal object; and
(b) an offence has been committed under this
Act with respect to the object.
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(2) An authorised officer may seize a document
from any person or place if the authorised officer
reasonably believes that -
(a) the document is an Aboriginal heritage
permit or other document issued under
this Act; and
(b) the holder of the Aboriginal heritage
permit or other document has committed
an offence under this Act.
(3) An authorised officer may seize a thing from any
person or place if the authorised officer
reasonably believes that it -
(a) has been used in, or in connection with,
the commission of an offence under this
Act; or
(b) constitutes evidence of the commission
of an offence under this Act.
122. Dealing with objects, documents or things seized
(1) In this section -
holding period, in relation to a seized item,
means the period of 6 months after the
day on which it was seized under
section 121;
related proceedings, in relation to a seized
item, means proceedings for an offence
under this Act in relation to which the
item was seized;
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seized item means an object, document or
thing seized by an authorised officer
from a person under section 121.
(2) If an authorised officer seizes an object,
document or thing from a person under
section 121, the authorised officer must give the
person a receipt for the seized item.
(3) The receipt is to -
(a) identify the seized item; and
(b) state why the seized item was seized; and
(c) state the time and place of seizure; and
(d) identify the authorised officer; and
(e) be in a form approved by the Secretary.
(4) An authorised officer must transfer a seized item
that is an Aboriginal object seized under
section 121(1) to the custody of the Council.
(5) A seized item other than an Aboriginal object
seized under section 121(1) is in the custody of
the Secretary.
(6) The Council or Secretary must hold a seized
item in its, his or her custody in safe custody.
(7) If related proceedings are not commenced within
the holding period, the Council or Secretary
must return a seized item in its, his or her
custody to its owner at the end of that period.
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(8) If related proceedings are commenced within the
holding period, the Council or Secretary must
return a seized item in its, his or her custody to
its owner at the end of those proceedings unless
the court hearing the related proceedings, on
application by the Council or Secretary, orders
its confiscation.
(9) In addition to any other order it may make, the
court hearing related proceedings may order the
confiscation of a seized item if the court is of the
opinion that the seized item has been used for
the purpose of committing a relevant offence or
that there is some other proper reason for
ordering its confiscation.
(10) If a court orders the confiscation of a seized
item -
(a) the Council or Secretary may dispose of
it as it thinks fit; and
(b) no compensation is payable to any
person in respect of its seizure or
confiscation.
123. Power of search and entry
(1) An authorised officer may search any premises,
vehicle or container if he or she reasonably
believes that an Aboriginal object, or a document
or other thing that he or she is entitled to seize
under this Act, is in the premises, vehicle or
container.
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(2) To search a vehicle under this section, an
authorised officer may require that it be stopped
and, if he or she considers it necessary or
expedient to do so having regard to the physical
conditions, bring the vehicle to a convenient
place to enable the search to be done or cause or
require it to be brought to such a place.
(3) To discharge responsibilities under section 121
or this section, an authorised officer may do all
or any of the following things at all reasonable
times without warrant:
(a) enter any premises, vehicle or container;
(b) in any premises, vehicle or container
lawfully entered, search for, examine,
make copies of or take extracts from -
(i) any document relating to
Aboriginal heritage; or
(ii) any document that appears to
indicate that an offence under this
Act has been committed;
(c) in any premises, vehicle or container
lawfully entered, open any container.
(4) To discharge responsibilities under section 121
or this section in respect of any premises, vehicle
or container, an authorised officer may require
the person apparently in charge of the premises,
vehicle or container, or any employee or agent of
such a person, to afford the authorised officer
such assistance as he or she may reasonably
require.
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(5) Without reasonable excuse, a person must not
refuse or fail to comply with a requirement made
under this section.
Penalty: Fine not exceeding 10 penalty units.
(6) In the discharge of his or her responsibilities
under section 121 or this section, an authorised
officer is not entitled to enter any premises being
used as a principal residence except with -
(a) the permission of its occupier; or
(b) a warrant under subsection (7).
(7) If, on the application of an authorised officer, a
magistrate or justice is satisfied that there is
reasonable cause to permit entry to any premises
being used as a principal residence, the
magistrate or justice may issue a warrant
authorising an authorised officer to enter the
premises specified in the warrant to discharge
responsibilities under section 121 or this section,
or both, in those premises.
124. Power to require information
(1) An authorised officer who lawfully enters any
premises, vehicle or container may require any
person present in the premises, vehicle or
container to give the officer any information, and
produce any document, that the officer
reasonably requires to ascertain whether this Act
is being complied with.
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(2) Without reasonable excuse, a person must not
refuse or fail to comply with a requirement made
under subsection (1).
Penalty: Fine not exceeding 50 penalty units.
(3) Without limiting what might constitute a
reasonable excuse under subsection (2), it is such
an excuse if the giving of the information or
document would tend to incriminate the person.
(4) When requiring a person to give information or a
document under subsection (1), an authorised
officer must advise the person that -
(a) unless the person has a reasonable
excuse, it is an offence for the person to
refuse or fail to comply with the
requirement; and
(b) the person has such an excuse if the
giving of the information or document
would tend to incriminate the person.
125. Power to require persons to leave protected places
(1) In this section -
protected place means -
(a) a registered Aboriginal site; or
(b) a place in respect of which a stop
order is in force.
(2) An authorised officer who reasonably suspects
that a person at a protected place has committed
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an offence against this Act may require the
person to leave the protected place.
(3) Without reasonable excuse, a person must not
refuse or fail to comply with a requirement made
under subsection (2).
Penalty: Fine not exceeding 10 penalty units.
126. Power of arrest
(1) A police officer or parks ranger who is
discharging an Aboriginal heritage responsibility
pursuant to section 118 may arrest, without
warrant, any person found offending if that
person -
(a) refuses or fails, without apparent
reasonable excuse, to comply with a
requirement under section 120 to state
the person's name and address; or
(b) in response to a requirement under
section 120, states a name or address that
the authorised officer reasonably believes
to be false; or
(c) refuses or fails, without apparent
reasonable excuse, to comply with a
requirement under section 120 to produce
evidence of the correctness of a stated
name or address; or
(d) does not, on demand, deliver up to the
authorised officer anything in the
person's custody or under the person's
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control that the authorised officer is
entitled to seize under this Act; or
(e) refuses or fails, without apparent
reasonable excuse, to comply with a
requirement under section 125 to leave a
protected place.
(2) A person is taken to be found offending for the
purposes of subsection (1) if, by reason of any
act, omission or conduct, he or she causes
someone observing the person to reasonably
suspect that the person has just committed, or is
in the process of committing, an offence against
this Act.
127. Obstruction of authorised officers
(1) In this section -
authorised officer includes a police officer or
parks ranger discharging an Aboriginal
heritage responsibility pursuant to
section 118.
(2) A person must not -
(a) obstruct or hinder; or
(b) threaten; or
(c) attempt to intimidate; or
(d) attempt to improperly influence -
an authorised officer in the discharge of an
Aboriginal heritage responsibility.
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Penalty: Fine not exceeding 50 penalty units.
128. Infringement notices
(1) In this section -
infringement offence means an offence
against this Act or the regulations that is
prescribed by the regulations to be an
infringement offence.
(2) An authorised officer may issue and serve an
infringement notice on a person if he or she
reasonably believes that the person has
committed an infringement offence.
(3) An infringement notice may not be served on an
individual who has not attained 18 years of age.
(4) An infringement notice -
(a) is to be in accordance with section 14 of
the Monetary Penalties Enforcement Act
2005; and
(b) is not to relate to more than 3 offences.
(5) The regulations -
(a) may prescribe, for infringement offences,
the penalties payable under infringement
notices; and
(b) may prescribe different penalties for
bodies corporate and individuals.
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(6) The penalty prescribed for an infringement
offence is not to exceed 20% of the maximum
penalty that could be imposed on an individual
by a court in respect of the offence.
129. False and misleading statements
A person must not, in giving any information
under this Act -
(a) make a statement knowing it to be false
or misleading; or
(b) omit any matter from a statement
knowing that without that matter the
statement is false or misleading.
Penalty: Fine not exceeding 50 penalty units.
130. Offences by bodies corporate
(1) In this section -
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
executive liability offence means an offence
against a section of this Act, other than
any of the following sections:
(a) section 21;
(b) section 23(2);
(c) section 42(4)(a);
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(d) section 42(4)(b);
(e) section 104(6);
(f) section 107(6);
officer, in relation to a body corporate,
means -
(a) a person who is an officer of a
corporation (within the meaning
of section 9 of the Corporations
Act); or
(b) a person (other than a person
referred to in paragraph (a)), by
whatever name called, who is
concerned in, or takes part in, the
management of the body
corporate.
(2) If a body corporate commits an executive
liability offence, an officer of the body corporate
also commits an executive liability offence if the
officer failed to exercise due diligence to prevent
the commission of the offence by the body
corporate.
(3) In determining whether an officer of a body
corporate failed to exercise due diligence, a court
may have regard to -
(a) what the officer knew, or ought
reasonably to have known, about the
commission of the offence by the body
corporate; and
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(b) whether or not the officer was in a
position to influence the body corporate
in relation to the commission of the
offence by the body corporate; and
(c) what steps the officer took, or could
reasonably have taken, to prevent the
commission of the offence by the body
corporate; and
(d) any other relevant matter.
(4) It is a defence to a charge for an executive
liability offence for an officer of a body
corporate to prove that the body corporate would
not have been found guilty of the offence
because of a defence available to it.
(5) An officer of a body corporate may be convicted
of an executive liability offence whether or not
the body corporate has been prosecuted for, or
found guilty of, the offence.
131. Liability of body corporate for offences by officers,
&c.
(1) If a person concerned in the management of a
body corporate, or an employee or agent of the
body corporate, acting within the scope of his or
her actual or apparent authority commits an
offence against this Act, the body corporate is
taken to have also committed the offence and,
for that purpose, the conduct and state of mind of
the person, employee or agent is imputed to the
body corporate.
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(2) A body corporate referred to in subsection (1)
may be convicted of an offence against this Act
whether or not the person, employee or agent
referred to in that subsection is charged with or
convicted of the offence.
(3) A reference in subsection (1) to the state of mind
of a person, employee or agent includes a
reference -
(a) to the knowledge, intention, opinion,
belief and purpose of the person,
employee or agent; and
(b) to the reasons of the person, employee or
agent for that intention, opinion, belief
and purpose.
132. Time for instituting summary proceedings
(1) Proceedings for a summary offence against this
Act may be instituted at any time within 5 years
after the alleged offence was committed.
(2) Subsection (1) has effect notwithstanding section
26 of the Justices Act 1959 or any other law.
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PART 13 - MISCELLANEOUS
133. Service of notices
A notice or other document is effectively served,
lodged or given under this Act if -
(a) in the case of a natural person, it is -
(i) given to the person; or
(ii) left at or sent by post to the
person's postal or residential
address or place or address of
business last known to the server
of the notice or other document;
or
(iii) faxed to the person's fax number;
or
(iv) emailed to the person's email
address; and
(b) in the case of any other person, it is -
(i) left at or sent by post to the
person's principal or registered
office or principal place of
business; or
(ii) faxed to the person's fax number;
or
(iii) emailed to the person's email
address.
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134. Protection from liability
A member of the Council or other person does
not incur any personal liability for an act done or
omitted to be done by the member or person in
good faith in, or in relation to -
(a) the exercise or performance, or purported
exercise or performance, of a power or
function under this Act; or
(b) the administration or execution, or
purported administration or execution, of
this Act.
135. Application procedure
(1) In this section -
administrative application means an
application under this Act other than an
application for the review of a decision;
relevant authority means the person to whom
the application is required to be made.
(2) An administrative application in respect of any
matter under this Act is to -
(a) be lodged with the relevant authority;
and
(b) be in a form provided or approved by the
relevant authority; and
(c) be accompanied by the prescribed fee, if
any; and
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(d) be supported by such evidence or
information as the relevant authority
requires, either at the time of lodgement
or subsequently; and
(e) comply with such additional
requirements as relate, under the relevant
section of this Act, to the specific
application.
(3) The relevant authority is not obliged to consider
or determine an administrative application made
under this Act if the application -
(a) fails to comply with subsection (2) in a
material way; or
(b) is the same or substantially the same as
an unsuccessful administrative
application made by the same applicant
within the preceding 12 months and, on
its face, discloses nothing new.
136. Waiver and refund of fees
(1) In this section -
relevant authority means the person to whom
the relevant fee is required to be paid.
(2) The relevant authority may waive or refund the
whole or any part of any fee payable or paid
under this Act.
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137. Regulations
(1) In this section -
external guidelines means guidelines other
than those issued under section 20.
(2) The Governor may make regulations for the
purposes of this Act.
(3) Without limiting the generality of subsection (2),
the regulations may -
(a) require the payment of fees in respect of
any matter under or relating to this Act,
and prescribe those fees; and
(b) provide for any matter relating to -
(i) Aboriginal heritage permits; and
(ii) management plans and their
preparation; and
(iii) external regulatory approvals;
and
(iv) Aboriginal heritage assessments
and the carrying out of such
assessments; and
(v) Aboriginal heritage agreements;
and
(vi) audits; and
(vii) stop orders (including interim
stop orders); and
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(viii) protection orders; and
(ix) the mapping, recording or
documentation of Aboriginal
heritage, including the
recognition, for any purpose
related to the objects of this Act,
of any such maps, records or
documents; and
(x) nominated Aboriginal heritage
and registration of objects and
sites as nominated Aboriginal
heritage; and
(xi) registration criteria; and
(xii) appeal rights in respect of
decisions taken under regulations.
(4) The regulations may provide for the conferral of
exemptions from -
(a) the operation of this Act or any of its
provisions; or
(b) the operation of any provision of the
regulations.
(5) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(6) The regulations may authorise any matter to be
from time determined, applied or regulated by
the Minister, the Council or the Secretary.
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(7) The regulations may -
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units.
(8) The regulations may adopt, either wholly or in
part and with or without modification, and either
specifically or by reference, any codes,
standards, guidelines or other documents
relevant to the objects of this Act, whether or not
those codes, standards, guidelines or other
documents are published or issued before or
after the day on which this Act or any particular
provision of this Act commences.
(9) A reference in subsection (8) to codes, standards,
guidelines or other documents includes a
reference to an amendment of those codes,
standards, guidelines or other documents,
whether the amendment is published before or
after the day on which this Act or any particular
provision of this Act commences.
(10) The regulations may -
(a) provide for savings and transitional
matters necessary or expedient for
bringing this Act into operation; and
(b) provide for any of those savings or
transitional matters to take effect on the
day on which this Act or any particular
provision of this Act commences or on a
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later day specified in the regulations,
whether the day so specified is before, on
or after the day on which the regulations
are made.
138. Status of delegated instruments under Act
Orders, notices, directives, criteria, codes and
guidelines made, issued or adopted under this
Act are not statutory rules for the purposes of the
Rules Publication Act 1953.
139. Review of Act
(1) The Minister is to review this Act within 3 years
after the day on which this section commences.
(2) The Minister is to cause a report on the outcome
of the review to be tabled in each House of
Parliament within 6 months after the third
anniversary of the day on which this section
commences.
140. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Environment, Parks
and Heritage; and
(b) the department responsible to that
Minister in relation to the administration
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of this Act is the Department of Primary
Industries, Parks, Water and
Environment.
141. Savings and transitional provisions
The savings and transitional provisions set out in
Schedule 4 have effect.
142. Legislation repealed
The legislation specified in Schedule 5 is
repealed.
143. Legislation revoked
The legislation specified in Schedule 6 is
revoked.
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SCHEDULE 1 - MEMBERSHIP OF COUNCIL
Section 15(6)
1. Term of office
(1) A member is appointed for such period not
exceeding 3 years as is specified in the
member's instrument of appointment.
(2) A member may be reappointed for further terms
but may not serve any more than 2 terms in
succession.
2. Holding other office
The holder of an office who is required by the
terms of his or her employment to devote the
whole of his or her time to the duties of that
office is not disqualified from -
(a) holding that office and also the office of
a member; or
(b) accepting any remuneration payable to a
member.
3. State Service Act 2000
(1) The State Service Act 2000 does not apply in
relation to a member in his or her capacity as a
member.
(2) A person may hold the office of member in
conjunction with State Service employment.
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4. Remuneration and conditions of appointment
(1) A member is entitled to be paid such
remuneration and allowances as the Minister
determines.
(2) A member who is a State servant is not entitled
to remuneration or allowances under this clause
except with the approval of the Minister
administering the State Service Act 2000.
(3) A member holds office on such conditions in
relation to matters not provided for by this Act
as are specified in the member's instrument of
appointment.
5. Vacation of office
(1) A member vacates office if he or she -
(a) dies; or
(b) resigns by written notice given to the
Minister; or
(c) is removed from office under
subclause (2) or (3).
(2) The Governor may remove a member from
office if the member -
(a) is absent from 3 consecutive meetings of
the Council without the permission of the
other members; or
(b) becomes bankrupt, applies to take the
benefit of any law for the relief of
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bankrupt or insolvent debtors,
compounds with the member's creditors
or makes an assignment of the member's
remuneration or estate for their benefit;
or
(c) is convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for 12 months or longer; or
(d) has benefited from, or claimed to be
entitled to benefit from, any agreement or
arrangement made by or on behalf of the
Council (other than an agreement or
arrangement for a service ordinarily
supplied or received by the Council on
the same terms as that service is supplied
or received by other persons in the same
situation); or
(e) is convicted of an offence under this Act;
or
(f) ceases permanently to reside in
Tasmania.
(3) The Governor may remove a member from
office if satisfied that the member is unable to
perform adequately or competently the duties of
office.
(4) A member must not be removed from office
otherwise than in accordance with this clause.
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6. Filling of vacancies
(1) If the office of a member becomes vacant, the
Governor may appoint an Aboriginal person to
the vacant office for the remainder of that
member's term of office.
(2) Despite clause 5(4), the Governor may remove
from office at any time a member appointed
under subclause (1).
7. Validation of proceedings, &c.
(1) An act or proceeding of the Council or of a
person acting under a direction of the Council is
not invalidated by reason only that at the time
when the act or proceeding was done, taken or
commenced there was a vacancy in the office of
a member.
(2) All acts and proceedings of the Council or of a
person acting under a direction of the Council
are, despite the subsequent discovery of a defect
in the appointment of a member or that any
person was disqualified from acting as, or
incapable of being, a member, as valid as if the
member had been duly appointed and was
qualified to act as, or capable of being, a
member, and as if the Council had been fully
constituted.
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8. Presumptions
In any proceeding by or against the Council,
unless evidence is given to the contrary, proof is
not required of -
(a) the constitution of the Council; or
(b) the appointment of any member.
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SCHEDULE 2 - MEETINGS OF COUNCIL
Section 15(7)
1. Convening of meetings
(1) The chairperson, after giving each member
reasonable notice of a meeting -
(a) may convene a meeting at any time; and
(b) must convene a meeting when requested
to do so by 2 or more other members.
(2) If the chairperson is absent from duty or
otherwise unable to perform the duties of the
office, a meeting may be convened, after
reasonable notice of the meeting has been given,
by -
(a) two or more other members; or
(b) a person authorised by the Council to do
so.
(3) What constitutes reasonable notice for
subclauses (1) and (2) is to be determined by the
Council.
(4) Notwithstanding subclauses (1) and (2), the
Council must ensure that it meets at least once in
each month.
2. Presiding at meetings
(1) The chairperson is to preside at all meetings of
the Council at which he or she is present.
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(2) If the chairperson is not present at a meeting of
the Council, a member elected by the members
present at the meeting is to preside.
3. Quorum and voting at meetings
(1) Four members constitute a quorum at a meeting
of the Council.
(2) A meeting of the Council at which a quorum is
present is competent to transact any business of
the Council.
(3) At a meeting of the Council -
(a) the member presiding has a deliberative
vote only; and
(b) a question is decided -
(i) by a majority of votes of the
members present and voting; or
(ii) in the negative if there is an
equality of votes of the members
present and voting.
(4) At a meeting of the Council where a member is
excluded from being present and taking part in
the consideration and decision of the Council in
relation to a matter, a quorum for the purposes of
considering and making a decision in relation to
that matter is constituted by the number of
members specified as constituting a quorum in
subclause (1) less the number of appointed
members so excluded.
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4. Conduct of meetings
(1) The Council may permit members to participate
in a particular meeting or all meetings by -
(a) telephone; or
(b) video conference; or
(c) any other means of communication
approved by the Council.
(2) A member who participates in a meeting under a
permission conferred under subclause (1) is
taken to be present at the meeting.
(3) The Council may allow a person to attend a
meeting for the purpose of advising or informing
it on any matter.
5. Minutes
The Council is to keep accurate minutes of its
meetings.
6. Disclosure of interests
(1) If a member has a direct or indirect pecuniary
interest in a matter being considered, or about to
be considered, by the Council, the member must,
as soon as practicable after the relevant facts
come to the member's knowledge, disclose the
nature of the interest to the Council.
Penalty: Fine not exceeding 10 penalty units.
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(2) A disclosure under subclause (1) is to be
recorded in the minutes of the Council and,
unless the Council otherwise determines, the
member who has made the disclosure must not -
(a) be present during any deliberation of the
Council in relation to the matter; or
(b) take part in any decision of the Council
in relation to the matter.
(3) For the purpose of making a determination under
subclause (2), the member to whom the
determination relates must not -
(a) be present during any deliberation of the
Council for the purpose of making the
determination; or
(b) take part in making the determination.
(4) Subclause (1) does not apply in respect of an
interest that arises only because the member is
also a State servant.
7. Presumptions
In any proceeding by or against the Council,
unless evidence is given to the contrary, proof is
not required of -
(a) any resolution of the Council; or
(b) the presence of a quorum at any meeting
of the Council.
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SCHEDULE 3 - COUNCIL COMMITTEES
Section 18(2)
1. Membership of committees
(1) A committee consists of such number of persons
as the Council determines.
(2) A committee may be comprised, wholly or
partly, of members of the Council.
(3) The Council is to appoint a member of the
committee as chairperson of the committee.
2. Conditions of appointment
(1) A member of a committee is entitled to be paid
any remuneration and allowances the Minister
determines.
(2) A member of a committee who is a State servant
is not entitled to remuneration or allowances
under this clause except with the approval of the
Minister administering the State Service Act
2000.
(3) A member of a committee holds office for the
period, and on the conditions, determined by the
Council.
3. Meetings
(1) Meetings of a committee are to be held in
accordance with any directions given by the
Council.
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(2) A committee may obtain assistance, information
and advice from any person.
(3) A committee is to keep accurate minutes of its
meetings.
(4) Except as otherwise provided by this Schedule
or directed by the Council, a committee may
regulate the calling of, and the conduct of
business at, its meetings.
4. Disclosure of interests
(1) If -
(a) a member of a committee has a direct or
indirect pecuniary interest, in a matter
being considered, or about to be
considered, by the committee; and
(b) the interest could conflict with the proper
performance of the member's duties in
relation to consideration of the matter -
that member, as soon as practicable after the
relevant facts come to his or her knowledge,
must disclose the nature of the interest to a
meeting of the committee.
Penalty: Fine not exceeding 10 penalty units.
(2) Unless the committee otherwise determines, a
member of a committee who has made a
disclosure under subclause (1) in relation to a
matter must not -
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(a) be present during any deliberation of the
committee in relation to the matter; or
(b) take part in any decision of the
committee in relation to the matter.
(3) For the purpose of making a determination under
subclause (2), the member of the committee to
whom the determination relates must not -
(a) be present during any deliberation of the
committee for the purpose of making the
determination; or
(b) take part in making the determination.
(4) Subclause (1) does not apply in respect of an
interest that arises only because a member of the
committee is also a State servant.
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SCHEDULE 4 - SAVINGS AND TRANSITIONAL
PROVISIONS
Section 141
1. Interpretation
In this Schedule -
repeal day means the day on which the
Aboriginal Relics Act 1975 is repealed.
2. Existing statutory authorisation
(1) In this clause -
relevant decision-maker has the same
meaning as in section 59;
statutory authorisation has the same meaning
as in section 59.
(2) If -
(a) a relevant decision-maker received, but
had not determined, an application for a
statutory authorisation for a proposed
land activity before the repeal day; and
(b) section 42(2) would otherwise apply to
the proposed land activity -
the proposed land activity is exempt from the
requirement, imposed by that section, that it
have a management plan until the application is
determined or withdrawn.
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(3) If an application for a statutory authorisation
referred to in subclause (2) is granted or the
statutory authorisation is issued or conferred on
or after the repeal day, the proposed land activity
is exempt from the requirement, imposed by
section section 42(2), that it have a management
plan while that statutory authorisation is in force.
(4) If on the repeal day -
(a) a statutory authorisation is in force in
respect of a proposed land activity; and
(b) section 42(2) would otherwise apply to
the proposed land activity -
the proposed land activity is exempt from the
requirement, imposed by that section, that it
have a management plan while that statutory
authorisation is in force.
(5) If -
(a) a relevant decision-maker received, but
had not determined, an application for a
statutory authorisation for a proposed
land activity before the repeal day; and
(b) the application is granted, or the statutory
authorisation is issued or conferred, on or
after the repeal day; and
(c) section 67(1) would otherwise apply to a
person carrying out the proposed land
activity -
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section 67(1) does not apply to the carrying out
of the proposed land activity to which the
statutory authorisation relates while the statutory
authorisation is in force.
3. Permits relating to relics under Aboriginal Relics
Act 1975
(1) In this clause -
Minister means the Minister administering of
the Aboriginal Relics Act 1975, as in
force immediately before the repeal day;
permit means a permit granted under section
14(1) of the Aboriginal Relics Act 1975
as in force immediately before the repeal
day.
(2) If -
(a) the Minister received, but had not
determined under the Aboriginal Relics
Act 1975, an application for a permit for
a proposed land activity before the repeal
day; and
(b) section 42(2) would otherwise apply to
the proposed land activity, or
section 31(1) or section 67(1) would
otherwise apply to a person carrying out
the proposed land activity -
the Aboriginal Relics Act 1975 is taken to be still
in force for the purposes of dealing with, and
determining, the application.
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(3) If -
(a) the Minister received, but had not
determined, an application for a permit
for a proposed land activity before the
repeal day; and
(b) section 42(2) would otherwise apply to
the proposed land activity -
the proposed land activity is exempt from the
requirement, imposed by that section, that it
have a management plan until the application is
determined or withdrawn.
(4) If -
(a) immediately before the repeal day, a
permit in respect of a land activity is in
force and section 42(2) would otherwise
apply so as to require a management plan
in relation to the land activity were the
land activity a proposed land activity; or
(b) on or after the repeal day, an application
for a permit referred to in subclause (2)
in respect of a proposed land activity to
which section 42(2) would otherwise
apply is granted -
the land activity or proposed land activity to
which the permit relates is exempt, while that
permit is in force, from the requirement,
imposed by section 42(2), that it have a
management plan.
(5) If -
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(a) a permit referred to in subclause (4)(a) is
in force immediately before the repeal
day; or
(b) a permit referred to in subclause (4)(b) is
conferred pursuant to subclause (2) -
the permit continues or is in force according to
its terms.
(6) If on the repeal day -
(a) a permit is in force permitting a person to
do or refrain from doing any act; and
(b) the doing or refraining from doing that
act would otherwise constitute an offence
under section 29(1), (2) or (3) or
section 30(1) -
the permit is taken to be an Aboriginal heritage
permit for the purposes of section 29(5)(a) or
section 30(3)(a), as appropriate.
(7) If -
(a) on or after the repeal day, an application
for a permit referred to in subclause (2)
by a person to whom section 31(1) or
section 67(1) would otherwise apply is
granted; and
(b) that permit authorises the relevant land
activity -
that permit continues in force according to its
terms and is taken to be an Aboriginal heritage
permit for the purposes of section 31(1) or to be
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an Aboriginal heritage approval for the purposes
of section 67(1), as appropriate.
(8) If -
(a) immediately before the repeal day, a
permit is in force in respect of a proposed
land activity; and
(b) section 31(1) or section 67(1) would
otherwise apply to the person holding the
permit; and
(c) that permit authorises the relevant land
activity -
that permit continues in force according to its
terms and is taken to be an Aboriginal heritage
permit for the purposes of section 31(1) or an
Aboriginal heritage approval for the purposes of
section section 67(1), as appropriate.
(9) However, a permit that -
(a) has effect immediately before the repeal
day; or
(b) is conferred on or after the repeal day -
expires 2 years after the repeal day despite the
terms of the permit.
(10) If a permit is not, by reason of this clause, taken
to be an Aboriginal heritage permit -
(a) the Minister may cancel or suspend it
under section 38; and
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(b) that section applies as if the permit were
an Aboriginal heritage permit and the
land activity to which the permit relates
were a restricted activity.
4. Registration of relics
(1) In this clause -
authorized officer has the same meaning as in
the Aboriginal Relics Act 1975;
Director has the same meaning as in the
Aboriginal Relics Act 1975;
relic means a relic, within the meaning of
section 2(3) of the Aboriginal Relics Act
1975 -
(a) that, immediately before the
repeal day, is listed as a relic on
the Tasmanian Aboriginal Site
Index; or
(b) of which the Director or an
authorized officer has been
informed under section 10 of the
Aboriginal Relics Act 1975;
Tasmanian Aboriginal Site Index means the
database kept, immediately before the
repeal day, by the responsible
Department in relation to the Aboriginal
Relics Act 1975.
(2) A relic is to be taken to be registered Aboriginal
heritage unless and until the Secretary
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determines otherwise or, after being entered in
the Register, it is removed from the Register.
(3) As soon as practicable on or after the repeal day,
the Secretary is to enter each relic in the
appropriate part of the Register unless the
Secretary determines that the relic is not
Aboriginal heritage.
5. Guidelines
(1) In this clause -
initial guidelines means the first guidelines
issued by the Minister under section 20;
relevant period means the period -
(a) commencing on the day on which
the initial guidelines take effect;
and
(b) ending -
(i) 2 years after that day; or
(ii) on the day on which a
declaration in the
guidelines, under
subclause (3), takes
effect -
whichever first occurs.
(2) The initial guidelines are taken, for the relevant
period, to have adopted, wholly and without
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modification, the codes, standards, guidelines or
other documents prescribed by the regulations.
(3) Despite subclause (2), the guidelines may
declare at any time that any codes, standards,
guidelines or other documents referred to in that
subclause are not adopted or have ceased to be
adopted.
6. References to Aboriginal Relics Act 1975
(1) A reference in any Act or other document to the
Aboriginal Relics Act 1975 is taken, if
appropriate, to be or to include a reference to this
Act.
(2) A reference in any Act or other document to an
Aboriginal relic is taken, if appropriate, to be or
include a reference to Aboriginal heritage.
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SCHEDULE 5 - LEGISLATION REPEALED
Section 142
Aboriginal Relics Act 1975 (No. 81 of 1975)
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SCHEDULE 6 - LEGISLATION REVOKED
Section 143
Proclamation under the Aboriginal Relics Act 1975 (No. 49 of
1976)
Aboriginal Relics (West Point Aboriginal Site) Order 1979
(No. 217 of 1979)
Aboriginal Relics (Sundown Point Aboriginal Site) Order
1979 (No. 235 of 1979)
Aboriginal Relics (Trial Harbour Aboriginal Site) Order 1981
(No. 307 of 1981)
Government Printer, Tasmania 227