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CLAUSE NOTES
Aboriginal Heritage Protection Bill 2013
PART 1 PRELIMINARY
Clause 1: Short Title
Provides that the short title of the Act is the Aboriginal Heritage
Protection Act 2013.
Clause 2: Commencement
Provides that the Act commences on a day or days to be proclaimed.
Clause 3: Objects of Act
Sets out the objects of the Act.
Fundamentally, the Bill seeks to recognise, provide for and promote
the protection of Aboriginal heritage and to provide for the involvement
of the Aboriginal community in the management and protection of their
heritage.
Aboriginal heritage management is to be treated as an integral part of
the States resource management and planning system.
Clause 4: Interpretation
Governs how terms and phrases used in the Act are to be interpreted
and applied.
In particular, subclause (1) provides that:
"Aboriginal heritage" means Aboriginal human remains, Aboriginal
objects, Aboriginal sites or nominated Aboriginal heritage.
"Aboriginal heritage assessment" means an assessment to
determine the nature, extent and significance of any Aboriginal
heritage on specific land or in a specific area.
"Controlled land activity" means an activity carried out under a
permit, management plan or external regulatory approval, and
includes any part of the controlled land activity.
"Development" has the same meaning as the definition used in
section 3(1) paragraphs (a) to (f) of the Land Use Planning and
Approvals Act 1993.
"External regulatory approval" refers to a planning permit under the
Land Use Planning and Approvals Act 1993 or a dam permit under the
Water Management Act 1999.
"Harm" includes damage, deface, destroy, conceal and otherwise
interfere with, but does not include an act or omission excluded from
the definition by regulations.
1
"High-impact land activity" refers to substantial infrastructure or
resource development projects; large-scale subdivisions and dams;
and large industrial and extractive development activities that require
approval under the Environmental Management and Pollution Control
Act 1994.
"Land activity" means any development or use of the land, or forest
practices on the land within the meaning of the Forest Practices Act
1985.
"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.
"Nominated Aboriginal heritage" means an object or site entered
on the Aboriginal Heritage Register as such. It must meet public
criteria and is to be registered only after undergoing a public process
that is run by the Aboriginal Heritage Council and leads to it making a
preliminary determination to the Minister. The details of these
processes are set out in Regulations.
"Restricted activity" refers to scientific research on an Aboriginal site
(including removing Aboriginal objects for that purpose); removing an
Aboriginal object from Tasmania; selling a registered Aboriginal object
(excluding objects made for the purpose of sale); disturbing land or
excavating in order to uncover or discover an Aboriginal object; and
an activity that will, or is likely to, harm Aboriginal heritage.
"Serious ground disturbance" means disturbance of the topsoil, or
a waterway of the surface rock layer of the ground, in the course of
digging, dredging, excavating, grading or trenching using mechanical
means, or ploughing involving deep ripping undertaken with a ripper or
subsoil cultivation tool or mound ploughing. It does not include other
forms of ploughing.
"Significance" relates to the definition of Aboriginal object and
Aboriginal site, and includes Aboriginal objects or sites with
archaeological, anthropological, spiritual, contemporary, historical,
scientific or social significance.
"Use" has the same meaning as in the Land Use Planning and
Approvals Act 1993.
Clause 5: Meaning of Aboriginal human remains
The definition of "Aboriginal human remains" means the bodily
remains of an Aboriginal person. It does not include a body or remains
buried in a cemetery or in other land as allowed under section 41 of
the Burial and Cremation Act 2002. It does not include certain objects
made from bodily material, for example a bracelet or necklace made
from human hair. Lastly, it does not include human tissue lawfully
removed from an Aboriginal person or dealt with in accordance with
the Human Tissue Act 1985.
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Clause 6: Meaning of Aboriginal object
The definition of "Aboriginal object" means any object relating to the
Aboriginal occupation of Australia, which is located in Tasmania, and
which is of significance to Aboriginal people. It includes objects which
have been removed or excavated from their Aboriginal place of origin.
It does not include an object that was made for the purpose of sale,
other than an object made for exchange or barter in accordance with
Aboriginal tradition. It does not include Aboriginal human remains,
which are separately defined. Examples of Aboriginal objects include
stone artefacts, bone points and scarred trees.
Clause 7: Meaning of Aboriginal site
The definition of "Aboriginal site" recognises the significance of a site
regardless of whether it is on land which is freehold, leasehold or
Crown reserve. Examples of Aboriginal sites include burial sites, shell
middens, stone arrangements, stone quarries and fish traps.
Clause 8: Meaning of exempt land activity
Provides exemptions for certain land activities, unless there is
registered Aboriginal heritage present and the activity will cause
additional surface disturbance, or Aboriginal heritage is found.
Examples of exempt land activities include minor works, alteration and
maintenance works, demolition, one or two dwellings, works ancillary
to an existing building (such as pools, sheds, fences and driveways),
certain dam works, subdivisions of no more than four lots and other
minor development that directly impacts less than 750 square metres.
Exempt land activities do not require Aboriginal heritage approval
under the Act.
Clause 9: Declarations of exempt area and area of high sensitivity
Provides for the declaration of an exempt area or an area of high
sensitivity, by order of the Governor, on the recommendation of the
Minister. Prior to making a recommendation to the Governor, notice is
to be given to the municipal council in which the area is situated and
consultation is to occur with the Aboriginal Heritage Council and such
other persons as the Minister considers appropriate. An area of high
sensitivity may only be declared if the Minister is satisfied that the area
contains registered Aboriginal heritage and is highly likely to contain
other Aboriginal heritage. Activities carried out in an exempt area are
exempt, subject to two exceptions: if there is registered Aboriginal
heritage in the affected area and the activity will cause additional
surface disturbance, or if Aboriginal heritage is found during the
works. Activities occurring in an area of high sensitivity, if they involve
additional disturbance of the surface, are not exempt.
Clause 10: Objectives to be taken into account by persons discharging
certain responsibilities under Act
Requires the objectives of the State's resource management and
planning system, and the planning process, to be taken into account in
performing any functions under the Act, excluding in relation to
Aboriginal human remains.
Clause 11: Timing of actions and decisions
Requires any decisions or actions under the Act, if a timeframe is not
specified, to be made or taken as soon as practicable. Where a
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decision is required within a specified period of time and that time
includes days on which the relevant authority is closed during normal
business hours, allows the period of time to be extended by that
number of days.
Clause 12: Act does not affect operation of certain other Acts
Clarifies that the Burial and Cremation Act 2002, the Coroners Act
1995 and the Human Tissues Act 1985 continue to operate
notwithstanding any provision of this Act.
Clause 13: Act binds Crown
Provides that the Bill binds the Crown in right of Tasmania and, so far
as the legislative power of the Tasmanian Parliament permits, the
Crown in all its other capacities.
PART 2 ADMINISTRATION
Clause 14: Establishment of Aboriginal Heritage Council
Establishes the Aboriginal Heritage Council ("the Council") as a body
corporate with attendant rights and obligations, and confirms that it
forms part of the State's resource management and planning system.
Clause 15: Membership of Council
Provides that the Council will be comprised of up to 9 members
appointed by the Governor, on the nomination of the Minister. Each
member must be an Aboriginal person who is resident in Tasmania,
and must have, in the opinion of the Minister, knowledge, experience
or expertise relevant to the Council's functions. The Council is to be
broadly representative of the Tasmanian Aboriginal community and
Aboriginal persons generally. Requires that there must be at least two
members of each gender and provides for the appointment of a
chairperson.
Clause 16: Functions of Council
Sets out the functions of the Council in relation to a wide range of
matters relating to the protection and management of Aboriginal
heritage, including both decision-making and advisory functions.
Specific decision-making functions include:
decision on management plans, if the Council reaches agreement
with the proponent on specified matters;
decisions on permits relating to scientific research and specified
dealings with Aboriginal objects (such as removal of an object from
the State);
preliminary registration determination in relation to the registration
of objects and sites as nominated Aboriginal heritage; and
decisions on entering into Aboriginal heritage agreements with
other parties for the voluntary protection and management of
heritage.
The advisory functions of the Council include advising the Minister on:
the assessment of development activities which go through the
integrated approvals process or require a permit from the Minister;
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the variation of management plans approved by the Council;
cases requiring audits;
protection orders and stop orders;
criteria for registering nominated Aboriginal heritage; and
management plans, if agreement could not be reached with the
proponent.
The Council has an educational function, to promote Tasmanian
community awareness and understanding of Aboriginal heritage.
Clause 17: Powers of Council
Provides that the Council has all the powers necessary for the
performance of its functions under the Act.
Clause 18: Committees
Provides that the Council may establish committees to assist or advise
it on any matter relating to the Act.
Clause 19: Delegation by Minister
Specifies the Minister's delegation powers. Specifically excludes
delegation of the power to make nominations or appointments to the
Council; the power to require, or determine applications for the
approval of management plans; the power to issue protection orders
and guidelines; and the power of delegation.
Clause 20: Guidelines
Provides the Minister with the ability to issue guidelines in relation to
specified matters including the investigation and documentation of
Aboriginal heritage, and sets out mandatory consultation requirements
prior to issuance. Allows for the adoption, in whole on in part, of any
codes, standards, other guidelines or other documents relevant to
their subject matter.
PART 3 OWNERSHIP AND PROTECTION OF ABORIGINAL HERITAGE
Clause 21: Duty of persons having Aboriginal human remains at
commencement of this section
Requires a person in possession of Aboriginal human remains to
notify the Aboriginal organisation approved by the Attorney-General
under the Coroners Act 1995 of that possession and hand the remains
to that organisation. Failure to do so is an offence under this Clause.
Clause 22: Duty of persons having Aboriginal objects at commencement of
this section
Requires a person in possession of an Aboriginal object, otherwise
than as part of a public collection, to notify the Secretary of that
possession and take reasonable measures to protect the object.
Failure to do so is an offence under this Clause.
Clause 23: Duty of persons finding Aboriginal objects or Aboriginal sites
Requires a person who discovers an Aboriginal object or site to report
that discovery to the Secretary. Failure to do so is an offence if the
person knew, or had a reasonable belief, of its character as an
Aboriginal object or site. There is no obligation to report the discovery
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if the person had a reasonable belief that the object or site was
recorded in the Aboriginal Heritage Register (and therefore had been
previously discovered and reported), or that another person was
reporting the find.
Where the discovery is made during works, the person in charge of
the work site is deemed responsible for reporting the discovery, rather
than the workers employed, contracted or subcontracted on the site.
Clause 24: Disclosing locations of unregistered Aboriginal objects or
Aboriginal sites
Allows an authorised officer to require a person to disclose the
location of an Aboriginal object or Aboriginal site. Failure to do so is
an offence if the authorised officer had a reasonable belief that the
person knew where the Aboriginal object or site was located and that
object or site was unable to be registered unless the person disclosed
that knowledge. It is a defence in proceedings if the defendant
establishes specified circumstances existed at the relevant time,
including that he or she did not know the location of the Aboriginal
object or site, or that such information was already in the public
domain.
Clause 25: Dealing with reported, &c., Aboriginal objects and Aboriginal
sites
Allows the Minister, in consultation with the Council and by agreement
with the person in possession of the Aboriginal object or the owner of
the land containing the Aboriginal site, to take action in relation to the
object or site for specified purposes.
Clause 26: Notification of Aboriginal heritage
Allows the Secretary, if there is registered Aboriginal heritage on any
land and if he or she reasonably believes that there may be similar
unregistered heritage on adjoining private land, to notify the owner of
the adjoining private land of the presence of the Aboriginal heritage
and of his or her belief that there may be similar Aboriginal heritage on
the adjoining land.
Clause 27: Continued enjoyment of private property rights
Provides that a person who is otherwise entitled to the use and
enjoyment of land does not lose that right only because an Aboriginal
object or site is located on the land. However this is subject to the
condition that such use and enjoyment does not harm Aboriginal
heritage, or is not likely to harm Aboriginal heritage.
Clause 28: Acquisition of Aboriginal sites
Provides for the Minister to acquire any land containing a registered
Aboriginal site. In making a decision to acquire, the Minister must be
satisfied of two things --
firstly, that the site is of exceptional significance to the Aboriginal
people of Tasmania; and
secondly, that the acquisition is the only way or protecting or
managing the site.
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The procedures for the compulsory acquisition of land and related
compensation under this clause are set out in the Land Acquisition Act
1993, except in one specific regard. No compensation will be payable
for any Aboriginal heritage found on or in the land or for any additional
value arising from the fact it is an Aboriginal site.
Clause 29: Acts that harm Aboriginal heritage
Sets out the offence of harming Aboriginal heritage. The harming
offence has three alternative parts.
The first and most serious relates to harm done by a person who
knows that it is Aboriginal heritage.
The second relates to harm done by a person who is reckless as to
whether it is Aboriginal heritage.
The third relates to harm done by a person who is negligent as to
whether it is Aboriginal heritage.
All three constitute offences, but with different penalties depending on
mental culpability.
Subclause (2) sets out exceptions which apply to all three offences.
The first defence is that the person acted in accordance with the terms
of an applicable Aboriginal heritage permit (under Part 4) or approved
management plan (under Part 5), or in accordance with an external
regulatory approval (under Part 6).
The second defence is that the person acted in the course of
preparing a management plan (under Part 5). This refers to acts which
were reasonably necessary for the purpose of preparing the
management plan.
The third defence is that the act was carried out in an emergency
under section 55 of the Electricity Supply Industry Act 1995.
The fourth defence is that the person acted in a way which was
necessary in the circumstances of an emergency, for example a
bushfire or other natural disaster.
The fifth defence is that the person acted in way which was a
necessary response, in the circumstances prescribed by regulations,
to a threat of harm to Aboriginal heritage/
Finally, it is a defence if the act occurs in the course of undertaking an
activity in accordance with guidelines (under Part 2).
Clause 30: Acts likely to harm Aboriginal heritage
Prohibits a person from doing an act which is likely to harm Aboriginal
heritage. This offence relates to such action by a person who knew at
the time that their act was likely to harm Aboriginal heritage (even if no
harm eventuated). Such an act is an offence under this clause, unless
specified exceptions apply.
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The first defence is that the person acted in accordance with the terms
of an applicable Aboriginal heritage permit (under Part 4) or approved
management plan (under Part 5), or in accordance with an external
regulatory approval (under Part 6).
The second defence is that the person acted in the course of
preparing a management plan (under Part 5). This refers to acts which
were reasonably necessary for the purpose of preparing the
management plan.
The third defence is that the act was carried out in an emergency
under section 55 of the Electricity Supply Industry Act 1995.
The fourth defence is that the person acted in a way which was
necessary in the circumstances of an emergency, for example a
bushfire or other natural disaster.
PART 4 ABORIGINAL HERITAGE PERMITS
Clause 31: Certain activities require Aboriginal heritage permits
Prohibits specified ("restricted") activities and dealings with Aboriginal
heritage, except in compliance with an Aboriginal heritage permit.
The restricted activities (specified in Part 1, section 4) are --
· disturbing land or excavating for the purpose of uncovering or
discovering Aboriginal heritage;
· scientific research at an Aboriginal site, including removing
Aboriginal objects for that purpose;
· an activity that will, or is likely to, harm an Aboriginal object or site; o
or
· selling registered Aboriginal objects; or
· removing registered Aboriginal objects from Tasmania.
This offence does not apply if the activity is --
· an exempt land activity; or
· necessarily incidental to the preparation of a management plan; or
· done in accordance with an approved management plan; or
· carried out in an emergency under section 55 of the Electricity
Supply Industry Act 1995; or
· necessary in the circumstances of an emergency; or
· carried out in an affected area that has sustained total or
widespread serious ground disturbance before the activity
commenced.
Clause 32: Applications for Aboriginal heritage permits
Provides that a person can apply to the issuing authority for a permit
authorising the restricted activity (in the case of scientific research, the
sale or removal of objects, the Council; in all other cases, the
Minister). Sets out mandatory consultations requirements for the
issuing authority and, if the activity is to be carried out on land, allows
the issuing authority to require an Aboriginal heritage assessment of
the affected area, having regard to any relevant guidelines and any
requirements of the regulations which may apply. Includes the right to
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ask the occupier of any land on or in which the heritage is located, for
permission to inspect that land.
Clause 33: Determination of applications for Aboriginal heritage permits
Provides a general discretion for the issuing authority to make a
decision on a permit application and specifies matters to be
considering in making its determination. These include the nature of
the heritage, the impact or likely impact of the activity, and the extent
to which the harm could be minimised. While these matters must be
considered, the issuing authority may also take into account such
other factors as it thinks fit in the circumstances.
Requires an application to be determined by the issuing authority
within 42 days and makes provision for the Minister to determine
applications which would otherwise be determined by the Council
where the Council fails to determine the application within the 42-day
period.
Provides that a permit must not be granted --
· in respect of Aboriginal human remains; or
· an activity for which a management plan is required under Part 5; or
· an activity for which a voluntary management plan is being
prepared; or
· an activity for which an external regulatory approval is required.
Requires the issuing authority to provide a statement of reasons and
to notify the applicant of appeal rights where a permit application is
refused.
Clause 34: Issue and registration of Aboriginal heritage permits
Requires the issuing authority to issue the permit, where approved, to
the applicant and to notify the Secretary of the issuance to ensure the
Aboriginal Heritage Register is updated.
Clause 35: Nature of Aboriginal heritage permits
Governs the form, effect, duration (two years), extension, surrender
and transfer of permits. Permits may be extended once only for a
period no longer than that for which it was originally issued.
Clause 36: Aboriginal heritage permit conditions
Allows the issuing authority to include conditions in a permit.
Contravening a condition of a permit, or causing or allowing another
person to contravene a condition of a permit is an offence.
Clause 37: Variation of Aboriginal heritage permits
Allows the issuing authority to vary a permit on its own motion or on
the application of the permit holder. Sets out consultation
requirements when consideration is being given to whether to vary a
permit. Following a variation by the issuing authority on its own
motion, it must notify the permit holder of the reasons for the variation
and when it takes effect and if the variation makes the permit more
restrictive, the holder's appeal rights. If the permit is varied on the
application of the permit holder, the issuing authority is to notify the
holder of the variation and when it takes effect. If the issuing authority
refuses to vary a permit on the application of the permit holder, it must
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notify the holder of the reasons for the refusal and the holder's appeal
rights.
Requires the issuing authority to notify the Secretary if a permit is
varied, to ensure the Aboriginal Heritage Register is updated.
Clause 38: Cancellation and suspension of Aboriginal heritage permits
Specifies the process for cancellation and suspension of permits in
circumstances where the issuing authority reasonably believes
· the holder of the permit no longer requires the permit or can no
longer demonstrate a legitimate need for the permit; or
· the holder of the permit has contravened the conditions of the permit
in a material way; or
· the holder of the permit has contravened the provisions of the Act in
a material way; or
· the activity is having unforseen Aboriginal heritage impacts; or
· the holder of the permit has given the issuing authority false or
misleading information in connection with the permit; or
· circumstances prescribed by the regulations exist; or
· the cancellation or suspension is merited on other grounds.
Clause 39: Replacement of Aboriginal heritage permits
Governs the issuance of replacement permits by the issuing authority,
if satisfied that the original has been stolen, lost, destroyed or
damaged to extent it is unsuitable for use.
Clause 40: Extent of using authority powers
Clarifies that an issuing authority is not entitled to take action in
relation to a permit issued by a different issuing authority, or an
application for a permit required to be issued by a different issuing
authority.
Clause 41: Appeal rights
Provides that an aggrieved person, within 14 days of notification, may
appeal a decision of an issuing authority to:
refuse to approve an application for a permit; or
impose conditions or particular conditions on a permit; or
issue a permit for a term shorter than that applied for; or
refuse to extend the term of a permit; or
refuse to approve an application to vary a permit; or
vary a permit on the issuing authority's own motion so as to
make it more restrictive; or
cancel or suspend a permit.
Appeals on permit decisions made by the Aboriginal Heritage Council
are to be made to the Magistrates Court (Administrative Appeals
Division).
Appeals on permit decisions made by the Minister are to be made to
the Resource Management and Planning Appeal Tribunal (RMPAT).
PART 5 MANAGEMENT PLANS
Clause 42: Mandatory management plans
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Subclause (1) clarifies "commence" in relation to a land activity means
any physical works for the land activity other than
the erection of perimeter security fencing; or
the clearance of vegetation, rubbish or hazards from the surface of
the affected area, with only minimal disturbance of the topsoil; or
surveying and mapping; or
soil and water testing; or
works associated with the preparation of a management plan for
the area.
Subclause (2) provides that a management plan is mandatory if the
proposed land activity is a high-impact land activity (defined in Part 1,
s.4), or if the regulations or the Minister (by notice to the proponent)
impose that requirement. The Minister may direct a person to prepare
a management plan before undertaking a proposed land activity on his
or her own motion, or on the recommendation of the Council. This may
occur where the circumstances of the activity do not require a
management plan under the Act or regulations, but the Minister
believes that it is appropriate in the particular case to require such a
plan.
Subclause (3) sets out exceptions to this requirement. It provides that
a management plan is not required for a proposed land activity if:
it is an exempt land activity; or
it is carried out in an emergency under section 55 of the Electricity
Supply Industry Act 1995; or
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.
Where a management plan is required for a proposed land activity, it is
an offence under clause 42(4) to commence or carry out the activity
without an approved management plan, unless an exemption applies
to the land activity.
Clause 43: Exemption from mandatory management plan requirements
Sets out the circumstances in which a proposed land activity is
exempt from the requirement for a mandatory management plan.
Subclause (1) provides that a land activity that would otherwise
require a management plan by virtue of its status as a high-impact
land activity is exempt from that requirement if the regulations provide
so.
Subclause (2) provides that a land activity that would otherwise
require a mandatory management plan under section 42(2) is exempt
from that requirement if the proponent has demonstrated to the
satisfaction of the Minister, and in accordance with any requirements
of the regulations that may apply or any relevant guidelines, that the
affected area has been subject to total or widespread serious ground
disturbance and that the disturbance was not caused to gain the
benefit of the exemption.
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Subclause (3) provides that a land activity that would otherwise
require a mandatory management plan under section 42(2) is exempt
from that requirement if the proponent has demonstrated to the
satisfaction of the Minister, and in accordance with any requirements
of the regulations that may apply or any relevant guidelines, that in the
circumstances there is no need for a management plan. This may
occur where high-impact land activities may have little or no impact on
Aboriginal heritage, such as when occurring on reclaimed land or
offshore.
The Minister may consult the Council in determining whether or not he
or she is satisfied that serious ground disturbance has been
sustained, or that in the circumstances a management plan is not
needed.
Clause 44: Voluntary management plans
Provides that a management plan may be prepared voluntarily.
Clause 45: Who may prepare management plans?
Provides that the proponent of an activity, or an Aboriginal heritage
consultant or any other person on the proponent's behalf, may
prepare a management plan. Regardless, the proponent remains
responsible for meeting the requirements relating to the preparation of
the management plan under Part 5 of the Act.
Allows the preparation of a management plan to continue where there
is a change of proponent, provided there is no change in the nature or
scale of the land activity.
In practice it is likely that most management plans will be undertaken
by proponents of activities as a mandatory requirement under this Act.
However, it is open to other parties to undertake voluntary
management plans to assess the Aboriginal heritage values of an
area.
Clause 46: Notification of proposed management plans
Requires the proponent to provide formal prior notice to specified
people of the intention to prepare a management plan. These are the
Minister, the Council and
if the land activity requires a statutory authorisation, the relevant
decision-maker.
Notification must include specified information, including name and
contact details, a description of the proposed activity, details of the
affected area, the proposed methodology for the associated Aboriginal
heritage assessment, and its start and end dates.
Clause 46(3) requires the Minister to provide written acknowledgment
of the notification to the proponent. Any actions that occur after this
notification that are necessarily incidental to the preparation of a
management plan are in effect, for the purpose of the legislation,
authorised actions.
Clause 47: Preparation requirements for management plans
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Requires the proponent of a land activity to ensure that the
preparation of a management plan and the activities undertaken
during a heritage assessment meet the relevant regulatory
requirements (prescribed both in regulations and through relevant
guidelines).
Regulations will provide minimum standards for management plans,
including the basic sections or headings for a management plan and
conduct and reporting requirements.
A management plan is to be prepared within 12 months of a notice of
intent, or such longer period as the Minister on one occasion during
that 12-month period allows.
Clause 48: Council to evaluate proposed management plan
Provides that the Council is taken to have elected to evaluate a
management plan for which it has received a formal notice of intent
from a proponent, unless within 30 days of receiving the notice of
intent it notifies the proponent that it does not intend to evaluate the
plan. If the Council elects not to evaluate a plan, the proponent may
proceed with its preparation without further reference to the Council.
Clause 49: Requirements for Council evaluations
Outlines the general obligations of the proponent and the Council in
the evaluation of a management plan.
The proponent is obliged to make reasonable efforts to consult with
the Council before beginning the Aboriginal heritage assessment and
during the preparation of the plan.
The Council is obliged to make reasonable efforts to work co-
operatively with the proponent in relation to the carrying out of the
assessment and the preparation of the plan.
Provides for at least two formal stages of consultation between the
parties: on the methodology for assessing the Aboriginal heritage and
the preparation of the management plan (the "preliminary consultation
period"); and on the Aboriginal heritage measures in the draft
management plan (the "supplementary consultation period"). A 45-day
statutory period is set for each of the two consultation stages. If
agreed between the parties, the 45-day supplementary consultation
period on the draft management plan may be extended, on one
occasion only.
Makes provision for the proponent to proceed with the preparation of
the management plan if the Council fails to make any representations
during the preliminary consultation period.
Requires the proponent and the Council to make every reasonable
effort to negotiate and reach agreement on specified matters in
respect to the draft management plan (within the supplementary
consultation period), including:
whether the plan provides for the land activity 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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whether the plan makes satisfactory provision for the
protection and management of any Aboriginal heritage likely to
be impacted by the relevant land activity, both during and after
the cessation of the land activity; and
measures in the plan for managing disputes, delays or other
contingencies that may arise in respect of the land activity or
the plan.
Allows the Council to approve the management plan if it reaches
agreement with the proponent on the specified matters within the
supplementary consultation period.
Provides that a management plan is not capable of being approved if
it does not substantially comply with the relevant regulatory
requirements or procedural requirements of Part 5 of the Act, or if it
contains measures which require an owner of land to grant any person
permanent access to that land (clause 49(9)).
Makes provision, if there is a dispute between the Council and the
proponent which may substantially delay the preparation of the plan,
for either party to refer the dispute to RMPAT for mediation. The
referral of a dispute to RMPAT does not extend the supplementary
consultation period, unless the council and proponent agree to both
the extension and the period of the extension.
Allows the proponent to proceed with preparation of the management
plan, without further reference to the Council, if the Council and
proponent fail to reach agreement on the specified matters, either
within the supplementary consultation period or, if agreed, an
extension of that period.
Clause 50: Form and content of management plans
Explains what a management plan is to include.
A management plan is to set out the results of the Aboriginal heritage
assessment and the measures to manage and protect any Aboriginal
heritage identified in the area. It must comply with the relevant
regulatory requirements, set out in the regulations or relevant
guidelines, and is not to contain any measures which require an owner
of land to grant any person permanent access to that land.
Clause 51: Applications for approval of management plans by Minister
Provides that the proponent may apply to the Minister for approval of
the management plan, in specified circumstances only. Firstly, a
proponent may apply to the Minister for approval if the Council elects
not to evaluate a management plan, under clause 48. Secondly, a
proponent may apply to the Minister for approval if the Council is
proceeding with the preparation of the management plan after failing
to reach agreement with the Council, under clause 49.
The application is to include the associated Aboriginal heritage
assessment.
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In making a decision, the Minister is to consult the Council and may
consult such other persons as he or she thinks fit in the
circumstances.
Clause 52: Determination of applications for approval of management plans
Provides for the Minister to make a decision on approval of a
management plan in lieu of the Council, where specified
circumstances under clause 51 apply.
Specifies the matters to be considered by the Minister when
considering an application, including:
whether the plan provides for the land activity to be carried out
in a way that avoids or, if that is not possible, minimises harm
to Aboriginal heritage; and
whether the plan makes satisfactory provision for the
protection and management of any Aboriginal heritage likely to
be impacted by the relevant land activity, both during and after
the cessation of the land activity; and
measures in the plan for managing disputes, delays or other
contingencies that may arise in respect of the land activity or
the plan.
Requires the Minister to make a determination within 30 days of
receiving the application.
The Minister is to notify both the proponent and the Council of his or
her determination. If the application is refused, the notification to the
proponent is to include the proponent's appeal rights.
If the Council submits advice to the Minister and the Minister does not
follow that advice in making a determination to approve ore fuse the
management plan, the Minister is to notify the Council and state the
reasons for not following the advice.
Clause 53: Registration, &c., of management plans
Requires the Council when it approves a management plan, or the
Minister where he or she approves a plan, to notify the Secretary of
the approval and provide a copy of the plan to ensure the Aboriginal
Heritage Register is updated.
Clause 54: Commencement of management plans
Provides that a management plan takes effect when the Minister or
Council approves it or on such later date as specified in the approval.
Clause 55: Implementation of management plans
Requires the proponent to ensure that the Aboriginal heritage
measures of the management plan are implemented in accordance
with the plan. Prohibits a person, in carrying out the land activity for a
management plan, from taking an action that contravenes or renders
nugatory an Aboriginal heritage measure of the plan, or from causing
or allowing another person to do so.
Clause 56: Variation of management plans
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Allows the Minister to vary a management plan, including on the
recommendation of the Council if the plan was approved by the
Council, or on the application of the proponent. A variation may
comprise a change of proponent.
The Minister must notify both the proponent and the Council where he
or she varies or refuses to vary a management plan. If the variation
makes the management plan more restrictive, the notification is to
include the proponent's appeal rights. If the Minister refuses to vary a
management plan on either the recommendation of the Council or on
the application of the proponent, the Minister is to notify the Council or
the proponent respectively of the reasons for the refusal.
The variation takes effect on notification of the variation, or on such
later date as is specified in the notice.
Requires the Minister, if a management plan is varied, to notify the
Secretary to ensure the Aboriginal Heritage Register is updated.
Clause 57: Cessation of management plans, &c.
Provides that a management plan is valid only in respect to the
proponent specified in the plan and the relevant land activity.
Specifies the circumstances in which the management plan ceases to
have effect. This includes where the proponent completes the relevant
land activity and the Aboriginal heritage measures of the plan have
been fully implemented, or if the land activity is not commenced within
3 years after approval of the plan (or such further period as the
Minister allows, on one occasion, on application of the proponent)
when that 3-year period of further period expires.
The Minister may revoke the approval of the management plan if
satisfied that the proponent has contravened an Aboriginal heritage
measure of the plan, under clause 55. Before revoking the approval,
the Minister is to allow the proponent to make submissions in relation
to the matter.
Clause 58: Minister to notify external regulators if management plan
required
Requires the Minister, where both a management plan and an
external regulatory approval (a planning or dam permit) is required for
the activity, to notify the external regulator of the requirement for a
management plan and other specified details.
Clause 59: Requirement for management plans to be approved ahead of
other statutory authorisations
Prohibits the relevant decision maker, where a management is
required under Part 5 or is being voluntarily prepared, from granting a
statutory authorisation for the activity unless a management plan for
that activity has been approved.
While this prevents a final decision on such an authorisation prior to
approval of the management plan, it does not prevent a person
applying for an authorisation before the plan has been approved.
Equally it does not prevent a decision-maker from proceeding with the
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decision-making process, up to but not including the final decision on
the authorisation before the plan has been approved.
Clause 59(2) requires a proponent to provide the relevant decision-
maker with a copy of the approved management plan. This is to
enable the decision-maker to be able to proceed with granting any
relevant authorisations.
Clause 59(4) prohibits the decision-maker from granting an
authorisation for an activity that would be inconsistent with the
management plan.
Some statutory authorisation regimes, for example planning, require a
decision-maker to decide whether or not to grant the authorisation
within a specified period. This requirement is overridden in the case of
authorisations for activities which also require a management plan:
clause 59(5) provides that the decision period does not start until the
approved management plan is received by the relevant decision-
maker.
However, clause 59(6) clarifies that any time limits that apply to
preliminary decisions are not affected by clause 52(5) and continue to
apply. This would capture applicable time limits for processing or
considering an application, such as requesting more information from
an applicant, deciding to refer an application to a body for advice etc.
Clause 60: Discontinuation of management plan preparations
Requires the proponent, where preparation of a management plan
does not continue to completion, to provide the Minister with notice of
the decision to discontinue, as well as all assessment documentation
gathered during the preparation of the plan.
The timeline for providing such notice and documents is 14 days after
the decision to discontinue. This will ensure that information relating to
Aboriginal heritage is not lost if a plan is discontinued before
completion.
Failure to comply with this provision is an offence.
Clause 61: Appeal rights
Provides a process for review by RMPAT, where an aggrieved person,
within 14 days of notification, appeals:
a decision of the Minister to refuse to approve a management
plan; or
a decision of the Minister to refuse to approve an application to
vary a management plan;
a decision of the Minister to vary a management plan so as to
make the plan more restrictive; or
a decision of the Minister to revoke the approval of a
management plan.
PART 6 EXTERNAL REGULATORY APPROVALS
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Clause 62: Application of Part
Establishes that this Part of the Act only applies where a person
proposes to carry out a regulated land activity (that is an activity
requiring a planning permit under the Land Use Planning and
Approvals Act 1993 or a permit for dam works under section 157(1)(a)
of the Water Management Act 1999) and a mandatory management
plan is not required for that activity.
Clarifies that this Part does not apply if the person has an approved
voluntary management plan for the regulated land activity.
Clause 63: Application of Planning Act expressions
Provides that expressions defined in the Land Use Planning and
Approvals Act and used in this Part have the same meaning as in that
Act, with the exception of "works", and unless the contrary intention
appears in this Part.
Clause 64: Application of Planning Act, &c., to regulated land activities is
subject to this Part
Clarifies that this Part of the Act takes precedence over any provisions
within the Land Use Planning and Approvals Act and any planning
scheme, planning directive or special planning order, or any provisions
within the Water Management Act or any dam permit in force, should
there be any inconsistencies.
Clause 65: Legal status of regulated land activities for Planning Act, &c.
Clarifies that a regulated land activity for which an external regulatory
approval under the Land Use Planning and Approvals Act is required
is, for all purposes, taken to be a development under the Land Use
Planning and Approvals Act and that development is taken to require
a permit of a kind which the planning authority has a discretion to
refuse or permit.
Clause 66: Application of section 57(3) of Planning Act
Provides that if the external application would not, but for the activity
being a regulated land activity under this Act, be of a kind which a
planning authority has a discretion to refuse or permit under section
57 of the Land Use Planning and Approvals Act, then no notice under
section 57(3) of the Land Use Planning and Approvals Act is required.
Clarifies that if the external application is of a kind which a planning
authority has a discretion to refuse or permit under section 57 of the
Land Use Planning and Approvals Act regardless of the fact it is a
regulated land activity under this Act, then the external regulator must
not give notice under section 57(3) of the Land Use Planning and
Approvals Act until the first of the following occurs:
the Minister has given notice under clause 68(4) as to whether
he or she has an interest in the application; or
the period allowed under this Act for the Minister to give notice
has elapsed.
Provides that if the Minister notifies the planning authority that he or
she wishes to be involved in determining the application, a notice
given by the external regulator or the applicant under section 57(3) of
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the Land Use Planning and Approvals Act must not include any
information that the Minister states in that notification must not be
included in such a notice.
Clause 67: Regulated land activities require Aboriginal heritage approval
Provides that a person must not carry out a regulated land activity
unless the activity has Aboriginal heritage approval in accordance with
this Part. Failure to comply with this provision is an offence.
Subclause (3) sets out exceptions to this requirement.
The first exception is if the regulated land activity is an exempt land
activity.
The second exception is where the regulated land activity is
authorised by an applicable Aboriginal heritage management plan, or
the activity was necessarily incidental to the preparation of an
Aboriginal heritage management plan for which a notice of intention
has been given.
The third exception is if the regulated land activity is carried out in an
emergency under section 55 of the Electricity Supply Industry Act
1995.
The fourth exception is if the action taken was a necessary and
proportionate response to an emergency.
The fifth exception is if the applicant is able to demonstrate that the
affected area has been subject to serious ground disturbance.
The Minister may consult the Council in determining whether or not he
or she is satisfied that serious ground disturbance has been
sustained.
Clause 68: External application to be sent to and considered by Minister
Requires the external regulator (the local council or the Assessment
Committee for Dam Construction) to refer an application for an
external regulatory approval to the Minister, for Aboriginal heritage
consideration. The referral is to occur within 5 days after the external
regulator receives a valid application.
The Minister is to consider the application and notify the external
regulator, within 7 days if the application is a planning permit or within
14 days if the external application is a dam permit, that:
the Minister has no interest in the application, or
the Minister wishes to be involved in determining the
application.
If the application is for a planning permit and the Minister notifies the
external regulator that he or she wishes to be involved in determining
the application, the Minister is to state in the notification that the
information contained in the application and identified in the
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notification is not to be included in a notice given under section 57(3)
of the Land Use Planning and Approvals Act.
If the Minister notifies the external regulator that he or she wishes to
be involved in determining the application, the Minister may also state
in the notification that he or she requires additional specified
information to assess the application. This may include the results of
an Aboriginal heritage assessment of the affected area.
If the application is for a dam permit and the Minister notifies the
external regulator that he or she wishes to be involved in determining
the application, the external regulator must notify the Minister of the
day by which he or she is to give notification of his or her
determination under clause 72(7).
Clause 69: Procedure if Minister requires additional information to consider
external application
Outlines the process that the Minister and the external regulator are to
follow if the Minister requires additional information to make a
determination.
As soon as practicable after receiving the Minister's request for
additional information, the external regulator is to use its power under
either s54 of the Land Use Planning and Approvals Act if it is a
planning permit, or section 154 of the Water Management Act if it is a
dam permit, to ask the applicant for the information.
Once the external regulator receives the additional information, it must
give the information to the Minister.
The Minister must inform the external regulator whether or not it is
satisfied that the additional information addresses the request.
For the purposes of section 54 of the Land Use Planning and
Approvals Act and any provision of the Water Management Act, the
external regulator is satisfied that the additional information answers
the request for additional information only when notified by the
Minister that he or she is satisfied.
Clause 70: Procedure if Minister has no interest in external application
under Planning Act
Outlines the process that the Minister and the external regulator are to
follow if the Minister has no interest in an external application for a
planning permit under clause 68(4)(a), or if it fails to give the external
regulator any notification of its intention within the period required
under clause 68(4).
If, but for the activity being a regulated land activity under this Act, no
permit would have been required under the Land Use Planning and
Approvals Act, the application is taken to be withdrawn.
If, but for the activity being a regulated land activity under this Act, no
discretionary permit would have been required under the Land Use
Planning and Approvals Act, but another planning permit would have
been required for the activity, then the application is taken to be an
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application made under the appropriate section of the Land Use
Planning and Approvals Act and the external regulator is to determine
the application under the appropriate provisions.
If a discretionary permit is required for the activity under section 57 of
the Land Use Planning and Approvals Act regardless of the fact it is a
regulated land activity under this Act, then the external regulator is to
determine the application under the appropriate provisions.
In these circumstances the Minister is not entitled to make
representations or take any other action in relation to the application.
The external regulator is to notify the Minister of its determination.
Clause 71: Procedure if Minister has no interest in external application
under Water Management Act
Outlines the process that the Minister and the external regulator are to
follow if the Minister has no interest in an external application for dam
permit under clause 68(4)(a), or if it fails to give the external regulator
any notification of its intention within the period required under clause
68(4).
In these circumstances the external regulator may determine the
application without any further consultation with the Minister.
The Minister is not entitled to make representations or take any other
action in relation to the application.
The external regulator is to notify the Minister of its determination.
Clause 72: Procedure if Minister wishes to be involved in determining
external application
Outlines the process that the Minister and the external regulator are to
follow if the Minister gives the external regulator notification of its
interest in the external application under clause 68(4)(b).
Subclause (1) introduces a new definition relevant to this Part:
"relevant period" means: (a) in relation to an application for a
planning permit and where the Minister has not sought an extra 14
days to determine the application, the period of 35 days from the
application day, or where the Minister has sought an extra 14 days to
determine the application, the period of 49 days after the application
day; and (b) in relation to an application for a dam permit, within the
period specified in the notice provided to the Minister by the external
regulator under clause 68(8).
Specifies the matters to be considered by the Minister when
considering an application and includes:
the known and likely Aboriginal heritage impacts of the
regulated land activity; and
any representations made in respect of the application; and
any matters prescribed by the regulations; and
the objects of the Act and any relevant guidelines.
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In considering an application, the Minister may liaise with the Council
or the external regulator.
The Minister may notify the external regulator that he or she requires
an extra 14 days to consider the external application. The external
regulator must notify the applicant of the extension of time.
The external regulator must forward to the Minister a copy of any
representations received in relation to the external application.
The external regulator is to notify the Minister of any extension of time
that has been agreed to between the external regulator and the
applicant for a planning permit.
The Minister must notify the external regulator, before the relevant
period expires, that the external regulatory approval (planning or dam
permit):
may be issued without Aboriginal heritage conditions; or
may be issued subject to the Aboriginal heritage conditions
specified in the notification; or
must be refused.
Subclause (9) clarifies the types of conditions the Minister may set
including conditions that provide for the activity to be carried out in a
way that avoids or (if that is not possible) minimises harm to Aboriginal
heritage and for the protection and management of any Aboriginal
heritage likely to be impacted, both during the carrying out and after
the cessation of the activity.
If the Minister consents to the external application being granted and
has not provided any additional comment or conditions, or it fails to
notify the external regulator of its decision within the relevant period,
the external regulator may determine the application without any
further consultation with the Minister. The Minister is not allowed to
then take any further action in relation to the application.
If the Minister consents to the external application being granted and
has also requested Aboriginal heritage conditions be set, the external
regulator must incorporate those conditions into the approval and
cannot impose any condition that conflicts with a condition required by
the Minister. The external regulator or any other person with
responsibilities under the Land Use Planning and Approvals Act or the
Water Management Act for enforcing an external regulatory approval,
is not required or entitled to exercise any power to enforce the
Aboriginal heritage conditions unless the Minister and external
regulator agree otherwise.
The external regulator must refuse to confer the external regulatory
approval if the Minister notifies the external regulator that the external
application should be refused.
The external regulator is required to notify the Minister of its
determination in relation to the external application, including where
an application is withdrawn.
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Where an external regulatory approval is conferred, the external
regulator must also provide a copy to specified persons, including the
Secretary to ensure the Aboriginal Heritage Register is updated.
Clause 73: Amendment of external applications
Allows external applications to be amended pursuant to section 155B
of the Water Management Act.
Outlines the procedure that the Minister and the external regulator are
to follow if a request for an amendment to an external application for a
dam permit is made.
Subclause (2) provide that if the Minister has not yet notified the
external regulator under clause 68(4) as to whether he or she has no
interest or wishes to be involved in determining the application and the
7-day period for that notification to be given has not ended, the
external regulator may amend or refuse to amend the application
without reference to the Minister. The external regulator is to
immediately notify the Minister if the application is amended.
Subclause (3) provides that if the Minister has given notification under
clause 68(4) that he or she has no interest in the application or has
failed to give notice within the required period, the external regulator
may amend or refuse to amend the application without reference to
the Minister.
Subclause (4) provides that if the Minister has given notification under
clause 68(4) that he or she wishes to be involved in determining the
application, the external regulator must consult the Minister before
amending the external application and have regard to any
representations made by the Minister.
The external regulator is not obliged to comply with subclauses (2) or
(4) if it reasonably determines the amendment will have no Aboriginal
heritage impacts.
Clause 74: Correction and amendment of external approvals
Clarifies what is to occur if the external regulator receives a request to
correct or make an amendment to a discretionary planning permit, as
allowed under s55 and s56 of the Land Use Planning and Approvals
Act, or to a dam permit as allowed under sections 161 or 162 of the
Water Management Act, and the Minister has given notice that he or
she consents, or consents subject to conditions, to the conferral of the
planning or dam permit under clause 72(7).
The external regulator must consult the Minister and take into
consideration any representations made by the Minister, before
making the correction or amendment.
Allows the external regulator to undertake corrections or amendments
where that correction or amendment will have no impact on Aboriginal
heritage or any Aboriginal heritage conditions set by the Minister.
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Clause 75: Contravention of Aboriginal heritage conditions
Provides that contravening an Aboriginal heritage condition included in
an external regulatory approval is an offence.
Clause 76: Appeals concerning external applications
Outlines the process for the review of decisions by RMPAT.
Subclause (1) joins the Minister as a respondent to any appeal against
a request for additional information under section 61(3) of the Land
Use Planning and Approvals Act or under section 276(1) of the Water
Management Act, but only where the Minister has given the external
regulator notification under clause 68(4)(b) that he or she wishes to be
involved in determining the application.
Subclause (3) joins the Minister as a respondent to any appeal against
any approval or approval with conditions of the external regulatory
approval (planning or dam permit) under sections 61(4) or 61(5) of the
Land Use Planning and Approvals Act or under section 276(1) of the
Water Management Act, but only if the Minister notified the external
regulator under clause 72(7) that he or she consented to the conferral
or the external regulatory approval, or consented with conditions.
Subclause (4) joins the Minister as a respondent to any appeal against
an external regulatory approval which has been refused partly on the
grounds of the Minister's notification under clause 72(7)(c) and partly
on the grounds of the external regulator.
Subclause (5) provides that the Minister is the sole respondent to any
appeal under clause 61(4) of the Land Use Planning and Approvals
Act or under section 276(1) of the Water Management Act, where the
external regulatory approval is refused solely on the basis of the
notification of the Minister under clause 72(7)(c) that the approval
should be refused.
Subclause (6) provides that the Minister is to be a joint respondent to
any appeal under s59(3) of the Land Use Planning and Approvals Act
where a decision has not been made with the 42-day period or any
other such agreed time.
Clause 77: Referral to Minister of certain planning instruments
Allows the Minister to give a planning interest notice to a planning
authority to notify the authority that its municipal area is an area of
planning interest to the Minister, if specified circumstances exist:
if the Minister has first consulted the Council, and
if the Minister is reasonably of the opinion that development in
the municipal area is likely to have Aboriginal heritage impacts.
Requires a planning authority that has received a planning interest
notice to notify the Minister of the commencement of the exhibition of
any draft planning instrument and invite the Minister to make
representations.
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Requires the Minister to notify the Tasmanian Planning Commission
(the Commission) and the Council if he or she gives a planning notice
to a planning authority.
If the Minister makes a representation in relation to a draft planning
instrument under section 43A of the Land Use Planning and Approvals
Act and the Commission grants a planning permit that is not in
accordance with a representation of the Minister, the Commission
must give the Minister reasons in writing for its decision.
Clause 78: Commission to invite and consider Ministerial representations on
certain dispensations
Requires the Commission to give the Minister a copy of an application
made under section 30P of the Land Use Planning and Approvals Act
for a dispensation from a local provision of an interim planning
scheme, where it relates to land within a municipal area in which the
Commission has received a planning interest notice from the Minister
under clause 77(6)(a).
The Commission is to invite the Minister to make a representation in
relation to the application. Before making any representations, the
Minister is to consult the Council.
If the Minister makes representations and the Commission's
determination of the application is not in accordance with those
representations, the Commission is to notify the Minister of its reasons
for the determination.
PART 7 ABORIGINAL HERITAGE AGREEMENTS
Clause 79: Power of Council to enter into Aboriginal heritage agreements
States that the Council may enter into voluntary agreements for the
protection or management of Aboriginal heritage.
Such agreements may not deal with activities requiring permits under
Part 4 or management plans under Part 5, or activities for which an
external regulatory approval is required under Part 6, and may not
restrict or permit access to any land without the consent of its owner.
If the land is occupied by a person other than the owner, the consent
of the occupiers is required.
Specified examples of matters that such agreements may cover
include (but are not limited to):
the protection, maintenance or use of an Aboriginal object or
site;
the use of, or access to, an Aboriginal object or site by
Aboriginal persons;
the rehabilitation of an Aboriginal object or site.
An Aboriginal heritage agreement is legally binding and enforceable,
but does not attach to the land so as to bind any subsequent owner of
the land.
Clause 80: Parties to agreements
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States that the Council is to always be a party to an Aboriginal
heritage agreement. The Council may enter into an agreement with
any person. However, any agreement relating to a site must include
as one of the parties to the agreement, the owner of the land, or
where it is Crown land, the Minister responsible for the administration
of the Crown Lands Act 1976.
Clause 81: Form of agreements
Sets out the formal requirements for an Aboriginal heritage
agreement.
In the first place, an agreement must be in a form approved by the
Council. Where an agreement relates to an Aboriginal site, it must
include information which clearly identifies that site, including a
description or of the boundaries of the site by reference to its GDA
coordinates.
Clause 82: Duration of agreements
Provides when an Aboriginal heritage agreement can begin and end.
An agreement relating to an Aboriginal site terminates automatically
on the sale of the land.
Clause 83: Variation of agreements
Allows for an Aboriginal heritage agreement to be varied by
agreement between the parties.
Clause 84: Lodgment and registration of agreements, &c.
Requires the Council to lodge a copy of an Aboriginal heritage
agreement with the Secretary within 14 days of entering into or
varying an agreement. The Council must also formally notify the
Secretary of the termination of an agreement. The Secretary is to
update the Register accordingly. These provisions will assist the
Secretary to fulfil his or her obligation under clause 112(1)(g), which is
to keep records of all agreements made on the Aboriginal Heritage
Register.
PART 8 AUDITS
Clause 85: Power of Minister to require audits of certain land activities
States when an audit of a controlled land activity may be ordered.
The Minister may require an authorised officer to carry out an audit if
he or she reasonably believes certain grounds are present, namely--
the conditions of the relevant approval (Aboriginal heritage
management plan, Aboriginal heritage permit or external
regulatory approval) are being materially contravened with
respect to Aboriginal heritage; or
the conditions of the relevant approval are deficient; or
Aboriginal heritage measures required to be taken under the
relevant approval are not being taken properly or at all; or
the Aboriginal heritage impacts of the controlled land activity
are greater or different than was contemplated when the
approval was conferred; or
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there has been a material change in circumstances since the
relevant approval was granted, with consequent implications
for Aboriginal heritage; or
the relevant approval was granted on erroneous premises, with
consequent Aboriginal heritage impacts; or
having regard to the objects of the act, it would be prudent to
audit the controlled land activity.
The Minister may order an audit on his or her own initiative, or the
Council may recommend to the Minister that an audit be undertaken.
Requires that when the Minister orders an audit of an activity, he or
she must also issue a stop order to the person conducting the activity.
This is to ensure that no further activity can be carried out until the
audit is completed, both to facilitate the audit and to avoid any harm or
further harm as a result of the activity.
Clause 86: Audit orders
Requires the audit order to specify the manner in which the audit is to
be conducted, including the name of the authorised officer required to
carry out the order, and the Aboriginal heritage matters to be audited,
as well as the period for the audit's completion. The audit order may
specify that the services of a specified consultant or expert be
engaged for the audit.
Clause 87: Conduct of audits
Specifies the manner in which an audit is to be carried out by an
authorised officer.
Clause 88: Audit reports
Requires an authorised officer who conducts an audit to provide the
Minister with a written report of its findings. The report may contain
any recommendations concerning:
the variation of the relevant approval (Aboriginal heritage
management plan, Aboriginal heritage permit or external
regulatory approval);
the continuation or termination of the relevant approval;
the monitoring of the controlled land activity;
Aboriginal heritage conditions;
Aboriginal heritage measures;
measures relating to the conduct of the controlled land activity
to avoid or minimise harm to Aboriginal heritage.
Clause 89: Approval of refusal of audit reports
Provides for the Minister to approve an audit report, if satisfied that it
addresses the requirements of the audit order.
Clause 90: Actions following approval of audit reports
Requires the Minister to notify the auditor, the proponent or person
holding the approval, the Council and the Secretary if he or she
approves an audit report. If the audit report recommends the variation
of the relevant approval, the Minister may implement that
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recommendation. The Secretary is to update the Register
accordingly.
Clause 91: Action following rejection of audit reports
Provides that if the Minister rejects an audit report, he or she may:
take no further action; or
remit the matter to the auditor for remediation and
resubmission; or
order a fresh audit in the matter (once only).
The Minister is to notify the auditor, the proponent or person holding
the approval, the Council and the Secretary if he or she rejects an
audit report. The Secretary is to update the Aboriginal Heritage
Register accordingly.
PART 9 STOP ORDERS
Clause 92: Power of Minister to stop certain land activities
Provides for the issue of stop orders by the Minister in specified
circumstances. These are where the Minister issues an audit order, or
where the Minister reasonably apprehends that:
the person is carrying out, or proposing to carry out, the land
activity in contravention of the Act ; and
the land activity or proposed land activity is harming or likely
to harm Aboriginal heritage, and
the Aboriginal heritage cannot be properly protected unless
the land activity or proposed land activity is stopped.
In relation to a nominated object or site (defined in Part 1, s.4), the
specified circumstances exist where the Minister reasonably
apprehends that:
the land activity or proposed land activity is impacting on or is
likely to impact on a nominated object or site; and
the land activity is harming or is likely to harm the nominated
object or site; and
the nominated object or site cannot be properly protected
unless the land activity is stopped.
A stop order may be issued on the Minister's own initiative, or the
Council may recommend to the Minister that a stop order be issued.
The Minister is to give a copy of the stop order to the Council and the
Secretary if issued, and the Secretary is to update the Aboriginal
Heritage Register accordingly.
Clause 93: Power of authorised officers to stop certain land activities
Provides for the issue of interim stop orders by an authorised officer in
specified circumstances. These are where the authorised officer
reasonably apprehends that:
the person is carrying out, or proposing to carry out, the land
activity in contravention of the Act ; and
the land activity or proposed land activity is harming or likely
to harm Aboriginal heritage, and
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the Aboriginal heritage cannot be properly protected unless
the land activity or proposed land activity is stopped; and
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 action under clause 92.
In relation to a nominated object or site, the specified circumstances
exist where the authorised officer reasonably apprehends that:
the land activity or proposed land activity is impacting on or is
likely to impact on a nominated object or site; and
the land activity is harming or is likely to harm the nominated
object or site; and
the nominated object or site cannot be properly protected
unless the land activity is stopped; and
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 action under clause 92.
The authorised officer is to give a copy of the stop order to the
Minister, the Council and the Secretary if issued, and the Secretary is
to update the Aboriginal Heritage Register accordingly.
Clause 94: Form and content of stop orders and interim stop orders
Sets out the formal requirements for a stop order.
Requires a stop order to be in an approved form, to identify the
relevant land activity and land, specify the perceived harm to the
identified heritage and state what the order requires.
Clause 95: Duration of stop orders and interim stop orders
Specifies how long a stop order has effect.
A stop order operates for 30 days from the time it is issued, or such
shorter time as is specified in the order.
An exception to this is where a stop order is issued in relation to a
nominated object or site (that is heritage such to a public registration
process prescribed in regulations) --in this case, where an application
has been made for the registration of the object or site, the order
operates until (whichever of the following occurs first), either the
application requesting registration of the nominated object or site is
determined, or the expiration of the period of 30 days or such shorter
period as is specified in the order. Where the Council on it own
motion has determined to consider registration of the nominated
object or site, the order operates until (whichever of the following
occurs first), the Council makes its preliminary registration
determination if the order comes into force before that determination is
made and the recommendation is that the objector site not be
registered as nominated Aboriginal heritage; the object or site is
registered as nominated Aboriginal heritage; it is finally determined
that the object or site is not to be registered as nominated Aboriginal
heritage; the expiration of the period of 30 days or such shorter period
as is specified in the order.
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An interim stop order comes into force as soon as it is served and can
apply for no longer than 48 hours
Clause 96: Extension of stop orders
Provides the Minister with the power to extend (once only) a stop
order for up to 14 days after the initial expiry date.
Clause 97: Service of stop orders and interim stop orders
Specifies how a stop order or interim stop order may be served.
An order may be served on the person to whom it applies (including a
body corporate), by affixing the order in a prominent position at the
location of the activity; or if issued to a body corporate, by giving it to
the person who is on the relevant land and apparently supervising the
relevant activity by that body.
Where the person authorised to deliver an order is required to enter
land for this purpose, such entry is authorised by this Act and does not
constitute a trespass. In all cases, such entry should be limited to the
extent and time reasonably necessary for the delivery.
It is an offence to move, remove, deface, destroy or obscure an order
affixed to land.
Clause 98: Revocation of stop orders and interim stop orders
Allows the Minister to revoke a stop order at any time or on application
of the person subject to the order.
Allows an interim stop order to be revoked by the authorised officer
who issued it, the Minister or the Secretary at any time or on
application of the person subject to the order.
Requires notification of the revocation to specified parties, including
the Council and the Secretary (for the purposes of the Aboriginal
Heritage Register).
Clause 99: Contravention of stop orders and interim stop orders
Provides that it is an offence for a person issued with a stop order or
interim stop order to contravene that order.
Clause 100: Effect of stop orders on audits
Clarifies that a stop order or interim stop order does not prevent a
person from taking actions necessary or expedient for the purposes of
an audit being carried out in accordance with an audit order, or giving
effect to the recommendations of an approved audit report.
Clause 101: Appeal rights
Provides a process for review by RMPAT, where an aggrieved person,
within 14 days of notification, appeals:
a decision by the Minister to issue a stop order; or
a decision by an authorised officer to issue an interim stop
order; or
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a decision by the Minister to extend a stop order.
PART 10 ABORIGINAL HERITAGE PROTECTION ORDERS
Clause 102: Power of Minister to issue Aboriginal heritage protection orders
Specifies the circumstances in which a protection declaration for a
registered Aboriginal object or site may be issued.
Such orders may be issued by the Minister, only where he or she is
satisfied that:
the Aboriginal people of Tasmania have a special relationship
with the object or site, and
the protection of the object or site is essential for the
preservation of that special relationship.
The Minister may issue a protection order on his or her own initiative
or on the recommendation of the Council.
Allows for two types of protection orders to be issued by the Minister.
The first is an enduring protection order which is described subclause
(3)(a) and are essentially Ministerial orders specifying measures for
the protection of a particular registered Aboriginal object or site, for an
unlimited period of time. The second is an interim protection order
which is described in subclause (3)(b) and are essentially Ministerial
orders specifying measures for the protection of particular registered
Aboriginal objects or places, for a limited period of time.
The Minister is able to make an interim protection order while an
assessment is undertaken to determine if a place or object warrants
permanent protection.
If an order is issued, the Minister is to give a copy of the order to the
Secretary for the purpose of updating the Aboriginal Heritage
Register.
Clause 103: Form and content of protection orders
Sets out the formal requirements of a protection order. A protection
order must be in an approved form and it must include:
information which clearly identifies the relevant registered
Aboriginal object or site to which it relates; and
specify whether it is an enduring or interim order; and
state why it has been issued; and
specify the protective measures to be taken; and
specify an individual or body who is responsible for taking the
protective measures, if applicable; and
such as matters as the Minister thinks fit in the circumstances;
and
information required by the regulations, if any.
Clause 104: Publication of protection orders
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Requires the Minister to publish a protection order in the Government
Gazette and in a local newspaper published and circulating generally
in the State.
If a person other than a State servant is required by the protection
order to take protective measures in relation to the registered
Aboriginal object or site, the Minister is to give that person a copy of
the order.
The Minister may publish the order in such other ways as the Minister
thinks fit, including by affixing the order on the relevant land, to
indicate that the order is in force. The affixing of an order on land is
authorised by this Act and does not constitute a trespass.
It is an offence to move, remove, deface, destroy or obscure an order
affixed to land.
Clause 105: Duration of protection orders
Specifies the terms of a protection order.
An enduring protection order is permanent, unless revoked by the
Minister. It protects the site or object from activities likely to harm its
Aboriginal heritage values, and provides for any necessary protective
measures to be taken. Subclause (1) provides that an enduring
protection order takes effect once published in the Government
Gazette, or on such later day as specified in the order.
An interim protection order operates for three months and can be
extended only once, by a further period of three months, provided this
is done prior the expiry of the initial term. Such extension may be
made by the Minister either on the Minister's own initiative, or on
request from the Council. No further extension may be made, as
interim protection orders are intended to provide protection only for a
limited time. If long term protection is found to be required, the most
appropriate measure will not be an interim order, but an enduring one,
under clause 102(3)(a).
Subclause (2) provides that an interim protection order takes effect
once published in the Government Gazette, or on such later day as
specified in the order.
If an interim protection order is extended, the Minister is to notify the
Secretary for the purpose of updating the Aboriginal Heritage
Register.
Clause 106: Variation or revocation of protection orders
Allows the Minister to vary or revoke a protection declaration at any
time, on his or her own initiative, or at the request of the Council or on
application of the person affected by the order.
If a protection order is varied or revoked, the Minister is to give a copy
of the variation or revocation to the Secretary for the purpose of
updating the Aboriginal Heritage Register.
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Clause 107: Publication of extension, variation or revocation of protection
orders
Provides that where an order is varied, extended or revoked, this must
also be published in the Government Gazette and in a local
newspaper published and circulating generally in the State.
If a person other than a State servant is required by the protection
order to take protective measures in relation to the registered
Aboriginal object or site, the Minister must give that person individual
notice of the extension, variation or revocation.
The Minister may publish the notice extending, varying or revoking a
protection order in such other ways as the Minister thinks fit, including
by affixing the relevant notice on the relevant land. The affixing of
such a notice on land is authorised by this Act and does not constitute
a trespass.
It is an offence to move, remove, deface, destroy or obscure a notice
affixed to land.
Clause 108: Consultation on protection orders, &c.
Provides that before issuing, extending, varying or revoking an order,
the Minister is to consult the Council and any person who, to the
Minister's knowledge, may be affected. The Minister must allow at
least 14 days for the consultations and must consider any feedback
that is provided.
Clause 109: Effect of protection orders
Provides that a protection order has an overriding effect in relation to
any other law, or any authorisation under the Act or agreement. This
ensures protection orders are the principal means of protecting
Aboriginal objects and sites.
Clause 110: Contravention of protection orders
Provides that contravening a protection order is an offence. Penalties
for contravention are set at the highest level in the Act, as a protection
order is the strongest protective mechanism available under the Act.
Clause 111: Appeal rights
Provides a process for review by RMPAT, where an aggrieved person,
within 14 days after notification was given (if the person received
individual notice) or 14 days after publication in the Gazette in any
other case, appeals a decision by the Minister to:
issue a protection order; or
extend an interim protection order; or
vary a protection order; or
require, by the issue of a protection order, a person to take a
protective measure in relation to Aboriginal heritage.
PART 11 ABORIGINAL HERITAGE REGISTER
Clause 112: The Aboriginal Heritage Register
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Requires the Secretary to establish and maintain the Aboriginal
Heritage Register.
Sets out what information must be recorded in the Register. The two
main categories are:
details of all known Aboriginal heritage in Tasmania, in the
form of objects, sites, human remains and nominated
Aboriginal heritage; and
records of all Aboriginal heritage instruments made under the
Act (permits, management plans, external regulatory
approvals, agreements, audits, protection orders, stop orders
and orders declaring exempt areas and areas of high
sensitivity).
Subclause (2) also provide the Secretary with the discretion to
register any other matter which he or she deems necessary or
appropriate.
In maintaining the Register, the Secretary is to have regard to
specified matters, including any relevant registration criteria or
guidelines.
The Secretary must be satisfied that a site, object or human
remains constitutes Aboriginal heritage before entering it on the
Register.
Clause 113: Form of Register
Sets out the form of the Register and the information to be
recorded, including details of the location of an Aboriginal object
or site by reference to a plan in the Central Plan Register or its
GDA coordinates and details of the area in relation to which any
instrument under the Act has effect. The Register is also required
to contain a separate part for entries relating to nominated
heritage (that is heritage such to a public registration process
prescribed in regulations).
The Secretary may amend the Register, or omit an entry, to
ensure its accuracy and currency, subject to any restrictions
specified in regulations.
Clause 114: Access to Register
Specifies who can access the Register and for what purpose.
The Council is entitled to have access to the Register at any time
for any purpose related to its responsibilities.
As the Register is not a public document, only persons and bodies
expressly authorised under this clause can obtain access, on
application, and only for the purpose specified and to the extent
the Secretary and the Council jointly consider necessary.
These include:
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one or more representatives of the managing authority in
relation to Crown land, for the purposes of managing that
Crown land;
the general manager or an employee of a municipal
council, to enable the council to discharge its
responsibilities within its municipal area;
an authorised officer, to enable the authorised officer to
discharge his or her responsibilities;
a person undertaking research (including initial research to
determine whether the person should apply for a permit to
undertake scientific research), for the purpose of obtaining
information relevant to that research;
the Valuer-General, for the purposes of discharging his or
her responsibilities;
a State servant, for the purpose of discharging his or her
duty to protect or manage Aboriginal heritage;
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
the service.
"Infrastructure service" is defined in Part 11 to mean:
the transmission, supply or distribution of electricity; or
the transmission, supply or distribution of gas by pipeline;
or
the provision, supply or distribution of water or the
provision of infrastructure relating to the provision, supply
or distribution of water; or
the provision of sewers or drains; or
the provision of a communications network; or
the provision of infrastructure relating to road transport, rail
transport, air transport or water transport; or
a service, or a service of a class of services, prescribed by
the regulations to be infrastructure services.
The Secretary may refuse to disclose information to any
person or body specified if he or she considers, on the advice
of the Council, that the information is of such special sensitivity
that it should not be disclosed.
Nothing prevents the Secretary from disclosing registered
information to the Minister; or disclosing registered information
required by a court, RMPAT or other tribunal; or disclosing
registered information to the Director of Public Prosecutions or
a law enforcement agency; or granting State servants access
to the Register for administrative purposes associated with
maintaining the Register.
The Secretary may establish protocols, in consultation with the
Council, for granting persons access to the Register.
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Clause 115: General public access to registered information
Allows the Secretary to establish a "synopsis" of the Register
in the form of a computer database, to be available for public
inspection online. This will ensure members of the public can
gain quick and accurate access to the most basic information
on the presence of Aboriginal heritage on particular land.
"synopsis", of the Register, is defined in subclause (1) to
mean a version of the Register that has been edited so as to
provide information on Aboriginal heritage in, on or
under particular land or a particular area of the State,
including geographic and mapping information derived
from the Register; and
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
exclude or neutralise any information that the Council,
by notice, has specifically recommended to the Minister
or Secretary not be publicly disclosed.
The Secretary is required to ensure , that a member of the
public searching the synopsis can gain a quick and accurate
indication as to which areas of the State contain Aboriginal
heritage and are subject to management controls.
"management controls" are defined in subclause (1) to mean
permits, management plans, external regulatory approvals,
agreements, protection orders, stop orders and orders
declaring exempt areas and areas of high sensitivity.
Clause 116: General advice on entries in Register
The Secretary, on application, may provide advice to any
persons about whether a specified record exists on the
Register and indicate in general terms the nature and
significance of the entry as well as what the entry means in
regard to use or development of the area, unless:
the Secretary , after consulting the council, considers
that to do so could be harmful to any Aboriginal
heritage; or
the Secretary , after consulting the council, considers
that the information is of such sensitivity that it ought
not be disclosed; or
the Council has recommended that the information not
be disclosed (either at all or to a particular class of
which the applicant is one).
An application made by an owner, mortgagee or occupier of
land, or a representative on their behalf, or a prospective
owner, mortgagee or occupier of land for the purposes
specified, or an applicant for a permit or external regulatory
approval or a proponent for a recognised management plan, or
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a or a representative on their behalf, for the purpose specified
is to be determined within 5 days of lodgment.
Applications by all other parties are to be determined within 10
days of lodgment.
PART 12 ENFORCEMENT
Clause 117: Authorised officers
Specifies the process for appointing a State servant to be an
authorised officer. An authorised officer holds office for the
period specified in the instrument of appointment.
Clause 118: Ex-officio authorised officers
Provides that police officers and park rangers are also
authorised to exercise the powers of an authorised officer
appointed under this Act.
Clause 119: Identity cards
Requires the Secretary to issue authorised officers with identity
cards in an approved form and containing a photograph of the
officer to whom it is issued. The Secretary may also issue a
person who is a police officer or park ranger with an identity
card for use in relation to Aboriginal heritage responsibilities.
Requires an authorised officer to produce his or her identity
card at any time while exercising such a power, if requested.
Where a person ceases to be an authorised officer, or loses
that status for any reason, the Secretary must retrieve the card
immediately.
Clause 120: Power to require name and address
Authorises an authorised officer to require a person to give
their full name and usual address, if the authorised officer
reasonably suspects that the person has committed, or is
committing, an offence against the Act. The authorised officer
may require further evidence if he or she reasonably believes
the name and address to be false. Failure or refusal to comply
with an authorised officer's request under this clause, without
reasonable excuse, is an offence.
Clause 121: Power of seizure
Provides an authorised officer with a limited power to seize an
object, provided he or she reasonably believes it is an
Aboriginal object and an offence has been committed against
this Act in relation to the object.
Provides an authorised officer with a limited power to seize a
document without a search warrant, provided he or she
reasonably believes it is an Aboriginal permit or other
document issued under this Act and an offence has been
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committed by the holder of the permit or other document
against this Act.
Provides an authorised officer with a limited power to seize a
thing without a search warrant, provided he or she reasonably
believes it has been used in connect with an offence under this
Act or constitutes evidence of the commission of an offence
under this Act.
Clause 122: Dealings with objects, documents or things seized
Requires an authorised officer to provide a receipt for any
object, document or thing seized, to the person in possession
or custody of that item.
The receipt must identify the seized item, state the name of the
authorised officer, state the time and place of the seizure and
the reason for the seizure.
Provides for the transfer to the Council of seized items that are
Aboriginal objects. A seized item other than an Aboriginal
object is to be placed in the custody of the Secretary.
If proceedings in relation to an offence under this Act are not
commenced within 6 months after the day on which the item
was seized, the Council or Secretary must return the seized
item to its owner.
If proceedings in relation to an offence under this Act are
commenced within 6 months after the day on which the item
was seized, the Council or Secretary must return the seized
item to its owner at the end of those proceedings unless the
court, on application by the Council or Secretary, orders it
confiscation.
The court hearing the proceedings may order the confiscation
of the seized item if of the opinion that the item has been used
for the purpose of committing an offence, or for any other
proper reason.
If the court order the confiscation of the item, the Council or
Secretary may dispose of it as it thinks fit and no
compensation is payable.
Clause 123: Power of search and entry
Provides that 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 the
authorised officer is entitled to seized is located in the
premises, vehicle or container.
Outlines the search powers which an authorised officer may
exercise upon entering premises, a vehicle or container under
this clause.
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It is an offence to fail to comply, without reasonable excise,
with a requirement made under this clause.
Provides that an authorised officer may only enter premises
used as a principal residence with the consent of its occupier
or a warrant.
Clause 124: Power to require information
Specifies that an authorised officer who enters any premises,
vehicle or container may require any person present to give
information, or produce any document, reasonably required by
the authorised officer in order to determine whether this Act is
being complied with. Failure or refusal to comply with such
request, without a reasonable excuse, is an offence, and an
authorised officer must warn the person of this. The person
has such an excuse if the giving of the information or
document would tend to incriminate the person.
Clause 125: Power to require persons to leave protected places
Allows an authorised officer to require a person, reasonably
suspected to have committed an offence against this Act, to
leave the protected place.
"protected place" is defined in subclause (1) to mean a
registered Aboriginal site or a place in respect of which a stop
order is in force.
Failure to comply with such a request, without reasonable
excuse, is an offence.
Clause 126: Power of arrest
Provides ex-officio authorised officers with a limited power of
arrest in relation to the discharge of Aboriginal heritage
responsibilities, where a person is founding offending in
specified circumstances. These include where a person
refuses or fails to comply, without reasonable excuse, with a
request to leave a protected place.
Clause 127: Obstruction of authorised officers
Provides that it is an offence to obstruct, hinder, threaten,
attempt to intimidate or attempt to improperly influence an
authorised officer.
Clause 128: Infringement notices
Allows for the issue of infringement notices, to provide a simple
and effective way to deal with minor offences. Penalties may
not exceed 20% of the maximum penalty set in the Act.
Infringement offices will be prescribed in the regulations.
Clause 129: False and misleading statements
Provides that it is an offence for any person, in giving any
information under this Act, to make a statement knowing it to
be false or misleading, or to omit any matter from a statement
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knowing that without that matter the statement is false or
misleading.
Clause 130: Offences by bodies corporate
Provides that if a body corporate commits an offence against
this Act, other than those specified, an officer of the body
corporate also commits an offence if the officer failed to
exercise due diligence to prevent the commission of the
offence. Matters which the court must have regard to in
determining whether an officer of a body corporate exercised
due diligence are specified in subclause (3). Subclause (4)
sets out a defence to such a charge.
An officer of a body corporate may be convicted whether or not
the body corporate has been prosecuted or found guilty of the
offence.
Clause 131: Liability of body corporate for offences by officers, &c.
Provides that offences committed by a person concerned in
the management of a body corporate, or an employee or agent
of the body corporate, are also automatically deemed to be
offences by the body corporate, and the state of mind of that
person, employee or agent is imputed to the body corporate.
A body corporate may be convicted whether or not the person,
employee or agent has been prosecuted or found guilty of the
offence.
Clause 132: Time for instituting summary proceedings
Allows for a five-year period to prosecute a summary offence
against this Act following the alleged offence, notwithstanding
section 26 of the Justices Act 1959 or any other law.
PART 13 MISCELLANEOUS
Clause 133: Service of notices
Outlines the formal requirements for the service of notices or
other documents under this Act.
Clause 134: Protection from liability
Provides that a member of the Council does not incur any
personal liability for acts done or omitted in relation to the
exercise or performance of a power of function under this Act,
or in relation to the administration of this Act.
Clause 135: Application procedure
Outlines the formal requirements for an administrative
application in relation to any matter under this Act, including
lodgement in the approved form with the person to whom the
application is to be made and supported by such evidence as
is required. It includes the power to seek further information.
There is no obligation to consider or determine an
administrative application if its fails to comply in a material way
with the formal requirements for such applications, or it is the
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same or substantially the same as an unsuccessful application
made by the same applicant with the last 12 months and
disclose nothing new.
Clause 136: Waiver and refund of fees
Allows any fees payable to be waived or refunded in whole or
in part by the person to whom the application is to be made.
Clause 137: Regulations
Sets out the matters in respect of which the Governor may
make regulations. This includes a general power to regulate
for the purposes of the Act, and any matters necessary for
implementing the statutory mechanisms including exemptions
from the Act. This clause also includes a power to regulate the
registration of objects and sites as nominated Aboriginal
heritage, including registration criteria and appeals.
Provision is also made for the mapping, recording and
documentation of Aboriginal heritage, including the recognition
of such maps for the purposes of the Act.
There is also provision to set fees, although it is not intended
to commence the legislation with any fees.
Clause 138: Status of delegated instruments under Act
Provides that any 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.
Clause 139: Review of Act
Requires the Minister to conduct a review of the operation of
the Act within three years of the day on which this clause
commences. The Minister is required to table a report on the
outcome of the review in Parliament within a further 6 months.
Clause 140: Administration of Act
Assigns the administration of the Act to the Minister for
Environment, Parks and Heritage and deems the Department
of Primary, Industries, Parks, Water and Environment to be the
department responsible to the Minister in relation to
administration of the Act, until provision is made by order
under section 4 of the Administrative arrangements Act 1990.
Clause 141: Savings and transitional provisions
Specifies that Schedule 1 contains saving and transitional
provisions.
Clause 142: Legislation repealed
Repeals the legislation specified.
Clause 143: Legislation revoked
Revokes the legislation specified.
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SCHEDULE 1: MEMBERSHIP OF COUNCIL
Governs matters relevant to membership of the Council,
including the term and conditions of appointment, disclosure of
interest, termination of appointment, filling of vacancies and
validation of proceedings.
SCHEDULE 2: MEETINGS OF COUNCIL
Governs matters relating to meetings of the Council, including
who must preside, what constitutes a quorum, procedures at
meetings and conflicts of interest.
SCHEDULE 3: COUNCIL COMMITTEES
Governs matters in relation to Committees established by the
Council, including membership, conditions of appointment,
meetings and disclosure of interests.
SCHEDULE 4: SAVINGS AND TRANSITIONAL PROVISIONS
Sets out transitional provisions to ensure that the legislation
operates effectively and to allow for permits and other controls
currently in place under the Aboriginal Relics Act to remain in
place, for two years from its repeal.
Specifies that all relics currently listed on the Tasmanian
Aboriginal Site Index kept by the Department are to be entered
in the Aboriginal Heritage Register, unless the Secretary
determines that the relic is not Aboriginal heritage.
Enables any codes, standards, guidelines or other documents
prescribed in regulations to be recognised and adopted as
initial guidelines for the purposes of this the Act, for a limited
period of two years.
Provides that a reference to the Aboriginal Relics Act, and to
an Aboriginal relic, in any Act or other document is taken,
where appropriate, to be a reference to the Act and to
Aboriginal heritage registered under the Act.
SCHEDULE 5: LEGISLATION REPEALED
Repeals the Aboriginal Relics Act 1975.
SCHEDULE 6: LEGISALTION REVOKED
Revokes the following legislation:
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).
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