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TASMANIA
__________
ABORIGINAL RELICS AMENDMENT BILL 2017
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 1 amended (Short title and commencement)
5. Section 2 amended (Interpretation)
6. Part II: Heading amended
7. Section 3 amended (Establishment of Aboriginal Heritage
Council)
8. Sections 4, 5 and 6 substituted
4. Membership of Council
5. Powers of Council
9. Section 9 amended (Protection of protected sites)
10. Section 10 amended (Duties of persons owning or finding, &c.,
relics)
11. Section 12 amended (Acquisition of relics by the Crown)
12. Section 14 amended (Protection of relics)
13. Section 15 amended (Wardens)
14. Section 17 amended (Powers of authorized officers and honorary
wardens in respect of offences)
15. Section 18 amended (Additional powers of authorized officers)
16. Sections 20 and 21 substituted
20. Defence of carrying out emergency work
[Bill 10]-V
21. Defence of compliance with guidelines
21A. Guidelines
21B. Time for commencing prosecution
17. Section 24 substituted
23. Review of Act
24. Act does not affect operation of certain other Acts
18. Repeal of Act
2
ABORIGINAL RELICS AMENDMENT BILL 2017
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.
SHANE DONNELLY, Clerk of the House
6 April 2017
(Brought in by the Minister for Environment, Parks and
Heritage, the Honourable Matthew Guy Groom)
A BILL FOR
An Act to amend the Aboriginal Relics Act 1975
Be it enacted by Her 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:
1. Short title
This Act may be cited as the Aboriginal Relics
Amendment Act 2017.
2. Commencement
This Act commences on a day to be proclaimed.
3. Principal Act
In this Act, the Aboriginal Relics Act 1975* is
referred to as the Principal Act.
*No. 81 of 1975
[Bill 10] 3
Aboriginal Relics Amendment Act 2017
Act No. of
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4. Section 1 amended (Short title and commencement)
Section 1 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) This Act may be cited as the Aboriginal
Heritage Act 1975.
5. Section 2 amended (Interpretation)
Section 2 of the Principal Act is amended as
follows:
(a) by omitting the definition of Council
from subsection (1) and substituting the
following definition:
Council means the Aboriginal
Heritage Council established
under section 3;
(b) by inserting the following definition after
the definition of Director in subsection
(1):
guidelines means guidelines issued
and in force under section 21A;
(c) by inserting the following definition after
the definition of protected site in
subsection (1):
small business entity means a body
corporate that is within the
meaning of small business entity
in section 328 -110 of the Income
4
Aboriginal Relics Amendment Act 2017
Act No. of
s. 5
Tax Assessment Act 1997 of the
Commonwealth;
(d) by inserting in subsection (3)(a) "," after
"object";
(e) by omitting from subsection (3)(a)
"inhabitants;" and substituting
"inhabitants, which is of significance to
the Aboriginal people of Tasmania; or";
(f) by omitting from subsection (3)(b)
"descendants; or" and substituting
"descendants, which is of significance to
the Aboriginal people of Tasmania; or";
(g) by omitting from subsection (3)(c) "who
died before the year 1876";
(h) by omitting subsection (4) and
substituting the following subsection:
(4) Despite subsection (3)(a) or (b),
objects made, or likely to have
been made, for the purposes of
sale (otherwise than by way of
barter or exchange in accordance
with Aboriginal tradition) are not
relics for the purposes of this Act.
(i) by inserting the following subsection
after subsection (7):
(8) In this section -
Aboriginal tradition means -
5
Aboriginal Relics Amendment Act 2017
Act No. of
s. 5
(a) the body of
traditions,
knowledge,
observances,
customs and
beliefs of
Aboriginal people
generally or of a
particular
community or
group of
Aboriginal people;
and
(b) any such tradition,
knowledge,
observance,
custom or belief
relating to
particular persons,
areas, objects or
relationships;
significance, of a relic, means
significance in accordance
with -
(a) the archaeological
or scientific
history of
Aboriginal people;
or
(b) the
anthropological
history of
6
Aboriginal Relics Amendment Act 2017
Act No. of
s. 6
Aboriginal people;
or
(c) the contemporary
history of
Aboriginal people;
or
(d) Aboriginal
tradition.
6. Part II: Heading amended
Part II of the Principal Act is amended by
omitting "RELICS ADVISORY" from the
heading to that Part and substituting
"HERITAGE".
7. Section 3 amended (Establishment of Aboriginal
Heritage Council)
Section 3 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) The Aboriginal Heritage Council
is established.
(b) by inserting the following paragraph after
paragraph (a) in subsection (2):
(ab) shall advise, and make written
recommendations to, the Minister
in relation to any object, site or
7
Aboriginal Relics Amendment Act 2017
Act No. of
s. 8
place alleged to be a relic under
this Act;
(c) by inserting the following subsection
after subsection (2):
(2A) For the purposes of providing
advice, and making written
recommendations, to the Minister
under subsection (2)(ab), the
Council is to seek information, or
professional or expert advice,
from any person or body the
Council believes on reasonable
grounds to have expertise in
relation to the matters concerned.
(d) by inserting the following subsection
after subsection (5):
(6) In performing its functions under
this Act, the Council, where it is
appropriate and practicable to do
so, is to consult with the
Aboriginal people of Tasmania.
8. Sections 4, 5 and 6 substituted
Sections 4, 5 and 6 of the Principal Act are
repealed and the following sections are
substituted:
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Act No. of
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4. Membership of Council
(1) Subject to subsection (2), the Council
consists of not more than 10 members
appointed -
(a) by the Governor on the
recommendation of the Minister;
and
(b) on such terms and conditions as
the Minister considers
appropriate.
(2) All members of the Council are to be
Aboriginal persons.
(3) The Minister is to appoint one member of
the Council as its Chairperson.
5. 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 any other Act.
(2) Except as provided by this Act or the
regulations, the Council may regulate its
own proceedings.
9
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Act No. of
s. 9
9. Section 9 amended (Protection of protected sites)
Section 9 of the Principal Act is amended as
follows:
(a) by inserting the following subsections
after subsection (2):
(2A) A person who -
(a) contravenes
subsection (1)(a) or (b) in
relation to a relic or
object, knowing, at the
time of the contravention,
that it is a protected
object; or
(b) contravenes
subsection (1)(c) or
subsection (2) in relation
to a site, knowing, at the
time of the contravention,
that it is a protected site -
is guilty of an offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
10 000 penalty
units; or
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Act No. of
s. 9
(b) an individual or a
small business
entity, a fine not
exceeding 5 000
penalty units.
(2B) A person who -
(a) contravenes
subsection (1)(a) or (b) in
relation to a relic or object
and is, at the time of the
contravention, reckless or
negligent as to whether it
is a protected object; or
(b) contravenes
subsection (1)(c) or
subsection (2) in relation
to a site, and is, at the
time of the contravention,
reckless or negligent as to
whether it is a protected
site -
is guilty of an offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
2 000 penalty
units; or
11
Aboriginal Relics Amendment Act 2017
Act No. of
s. 10
(b) an individual or a
small business
entity, a fine not
exceeding 1 000
penalty units.
(b) by inserting in subsection (3) "protected"
after "seize that";
(c) by inserting the following subsection
after subsection (3):
(4) If, in any proceedings for an
offence against a provision of this
section, the court is not satisfied
that the defendant is guilty of the
offence as charged but is satisfied
that the defendant is guilty of an
offence under another provision
of this section in relation to which
a lesser maximum fine is
prescribed, the court may find the
defendant guilty of the other
offence.
10. Section 10 amended (Duties of persons owning or
finding, &c., relics)
Section 10 of the Principal Act is amended by
omitting subsection (7) and substituting the
following subsection:
(7) A person who contravenes, or fails to
comply with, any of the provisions of
this section is guilty of an offence.
12
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Act No. of
s. 11
Penalty: In the case of -
(a) a body corporate, other
than a small business
entity, a fine not
exceeding 100 penalty
units; or
(b) an individual or a small
business entity, a fine not
exceeding 50 penalty
units.
11. Section 12 amended (Acquisition of relics by the
Crown)
Section 12 of the Principal Act is amended by
omitting subsection (8) and substituting the
following subsection:
(8) Any person who damages, destroys or
disposes of a relic in respect of which a
notice has been served under subsection
(2) is guilty of an offence.
Penalty: In the case of -
(a) a body corporate, other
than a small business
entity, a fine not
exceeding 100 penalty
units; or
(b) an individual or a small
business entity, a fine not
13
Aboriginal Relics Amendment Act 2017
Act No. of
s. 12
exceeding 50 penalty
units.
12. Section 14 amended (Protection of relics)
Section 14 of the Principal Act is amended as
follows:
(a) by inserting the following subsections
after subsection (1):
(1A) A person who contravenes
subsection (1)(a), (b), (c), (d) or
(e) in relation to a relic knowing,
at the time of the contravention,
that it is a relic, is guilty of an
offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
10 000 penalty
units; or
(b) an individual or a
small business
entity, a fine not
exceeding 5 000
penalty units.
(1B) A person who contravenes
subsection (1)(a), (b), (c), (d) or
(e) in relation to a relic and who
14
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Act No. of
s. 12
is, at the time of the
contravention, reckless or
negligent as to whether it is a
relic, is guilty of an offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
2 000 penalty
units; or
(b) an individual or a
small business
entity, a fine not
exceeding 1 000
penalty units.
(1C) A person who contravenes
subsection (1)(f) is guilty of an
offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
2 000 penalty
units; or
(b) an individual or a
small business
entity, a fine not
15
Aboriginal Relics Amendment Act 2017
Act No. of
s. 13
exceeding 1 000
penalty units.
(b) by inserting the following subsection
after subsection (5):
(6) If, in any proceedings for an
offence against a provision of this
section, the court is not satisfied
that the defendant is guilty of the
offence as charged but is satisfied
that the defendant is guilty of an
offence under another provision
of this section in relation to which
a lesser maximum fine is
prescribed, the court may find the
defendant guilty of the other
offence.
13. Section 15 amended (Wardens)
Section 15 of the Principal Act is amended as
follows:
(a) by omitting subsections (1) and (1A) and
substituting the following subsections:
(1) The Secretary of the Department
may appoint to be a warden for
the purposes of this Act a State
Service officer, or State Service
employee, who is employed in
the Department, and the State
Service officer or State Service
employee may hold that office in
16
Aboriginal Relics Amendment Act 2017
Act No. of
s. 14
conjunction with State Service
employment.
(1A) The Secretary of the Department,
with the consent of the Head of
another State Service Agency,
may appoint to be a warden for
the purposes of this Act a State
Service officer, or State Service
employee, who is employed in
that Agency, and the State
Service officer or State Service
employee may hold that office in
conjunction with State Service
employment.
(b) by omitting from subsection (2)
"subsection (1)" and substituting
"subsection (1) or (1A)".
14. Section 17 amended (Powers of authorized officers
and honorary wardens in respect of offences)
Section 17 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or she"
after "he";
(b) by inserting in subsection (1) "or her"
after "state his";
(c) by inserting in subsection (1) "or her"
after "of his";
17
Aboriginal Relics Amendment Act 2017
Act No. of
s. 14
(d) by inserting in subsection (2) "or her"
after "him";
(e) by omitting subsection (3) and
substituting the following subsection:
(3) A person who, when required
under this section -
(a) to state his or her name
and the address of his or
her place of abode, fails
or refuses to give his or
her full name and that
address or gives a name
or address that is false; or
(b) to leave any protected
site, refuses to do so, or
does not do so within a
reasonable time -
is guilty of an offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
100 penalty units;
or
(b) an individual or a
small business
entity, a fine not
18
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Act No. of
s. 15
exceeding 50
penalty units.
15. Section 18 amended (Additional powers of
authorized officers)
Section 18 of the Principal Act is amended as
follows:
(a) by omitting subsection (2) and
substituting the following subsection:
(2) A person who, when required to
do so by an authorized officer,
refuses to deliver to that officer
any object that the officer is
entitled to seize under this Act is
guilty of an offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
100 penalty units;
or
(b) an individual or a
small business
entity, a fine not
exceeding 50
penalty units.
(b) by omitting subsection (6) and
substituting the following subsection:
19
Aboriginal Relics Amendment Act 2017
Act No. of
s. 16
(6) A person who, without
reasonable excuse (proof of
which lies on the person), refuses
or fails to comply with a
requirement made of the person
by an authorized officer under
this section is guilty of an
offence.
Penalty: In the case of -
(a) a body corporate,
other than a small
business entity, a
fine not exceeding
100 penalty units;
or
(b) an individual or a
small business
entity, a fine not
exceeding 50
penalty units.
16. Sections 20 and 21 substituted
Sections 20 and 21 of the Principal Act are
repealed and the following sections are
substituted:
20. Defence of carrying out emergency work
It is a defence to a prosecution for an
offence under this Act if, in relation to
the section of the Act the defendant is
alleged to have contravened, it is proved
20
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Act No. of
s. 16
that the act or omission constituting the
alleged offence was due to the act of
carrying out -
(a) emergency work in accordance
with section 55 of the Electricity
Supply Industry Act 1995; or
(b) any other work that is a necessary
and proportionate response to an
actual or impending emergency
that threatens human life or
property or threatens to injure any
person.
21. Defence of compliance with guidelines
(1) It is a defence to a prosecution for an
offence under section 9 or 14 if, in
relation to the section of the Act which
the defendant is alleged to have
contravened, it is proved -
(a) that, in so far as is practicable -
(i) the defendant complied
with the guidelines; or
(ii) it was reasonable in the
circumstances for the
defendant to rely on
another person's
compliance with the
guidelines; or
(b) that the act or omission
constituting the alleged offence
21
Aboriginal Relics Amendment Act 2017
Act No. of
s. 16
was due to an act or default of
another person; or
(c) that, in so far as it was reasonable
to do so in the circumstances, the
defendant relied on information
supplied by another person.
(2) In this section -
another person does not include a
person who was -
(a) an employee or agent of the
defendant; or
(b) in the case of a defendant that is a
body corporate - a director,
employee or agent of the
defendant.
21A. Guidelines
(1) The Minister must issue guidelines
specifying the actions to be undertaken
by a person for the purpose of
establishing a defence in accordance with
section 21.
(2) The Minister may -
(a) amend the guidelines; or
(b) revoke the guidelines and
substitute new guidelines.
(3) The guidelines -
22
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Act No. of
s. 16
(a) may be made so as to apply
differently according to such
factors as are specified in the
guidelines; and
(b) may adopt, either wholly or in
part and with or without
modification, either specifically
or by reference, any standards,
rules, codes, guidelines or other
documents (whether published or
issued before or after the
commencement of this section);
and
(c) are not statutory rules for the
purposes of the Rules Publication
Act 1953; and
(d) are not subordinate legislation for
the purposes of the Subordinate
Legislation Act 1992.
(4) A reference in subsection (3)(b) to
standards, rules, codes, guidelines or
other documents includes a reference to
an amendment of those standards, rules,
codes, guidelines or other documents,
whether the amendment is published or
issued before or after the commencement
of this section.
(5) In issuing guidelines, amending
guidelines or revoking and substituting
guidelines, the Minister may consult with
23
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Act No. of
s. 16
any person he or she considers
appropriate.
(6) The guidelines take effect on a day
specified in the guidelines as the day on
which the guidelines are to take effect.
(7) An amendment of guidelines, or a
revocation and substitution of guidelines,
takes effect on a day specified in the
guidelines as the day on which the
amendment, or the revocation and
substitution, is to take effect.
(8) The Minister must cause guidelines, an
amendment of guidelines or substituted
guidelines to be laid before each House
of Parliament within the first 5 sitting-
days of that House after the day on which
the guidelines, the amendment of
guidelines or the substituted guidelines
take effect.
(9) Either House of Parliament may pass a
resolution disallowing guidelines, an
amendment of guidelines or substituted
guidelines within 5 sitting-days after the
guidelines, the amendment of guidelines
or the substituted guidelines have been
laid before it.
(10) If a House of Parliament passes a motion
to disallow guidelines, an amendment of
guidelines or substituted guidelines under
subsection (9) -
24
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Act No. of
s. 16
(a) the guidelines, amendment of
guidelines or substituted
guidelines are void on and from
the date of the passing of the
motion of disallowance; but
(b) the passing of the motion of
disallowance does not affect the
validity of anything done under
the guidelines, the amendment of
guidelines or the substituted
guidelines before the date of the
passing of that motion.
(11) If at the expiration of 5 sitting-days after
the guidelines, an amendment of
guidelines or the substituted guidelines
are laid before either House of
Parliament, no notice has been given of a
motion to disallow the guidelines, the
amendment of guidelines or the
substituted guidelines, or, if such notice
has been given, the notice has been
withdrawn or the motion has been
negatived, the guidelines, the amendment
of guidelines or the substituted guidelines
are taken to have been confirmed by that
House.
(12) The Minister is to ensure that the
guidelines, as in force, are published on
the website of the Department and made
available to the public in any other
manner the Minister considers
appropriate.
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Act No. of
s. 17
21B. Time for commencing prosecution
(1) A prosecution under this Act must be
commenced -
(a) not later than 2 years after the
date on which the offence is
alleged to have been committed;
or
(b) not later than 2 years after the
date on which evidence of any act
or omission constituting the
offence first came to the attention
of any authorized officer.
(2) Subsection (1) has effect despite section
26 of the Justices Act 1959 or any other
law.
17. Section 24 substituted
Section 24 of the Principal Act is repealed and
the following sections are substituted:
23. 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.
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Act No. of
s. 18
24. Act does not affect operation of certain other
Acts
Nothing in this Act affects the operation
of section 139 of the Criminal Code Act
1924 or the Coroners Act 1995.
18. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 27