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Aboriginal Heritage Bill
As Sent Print
EXPLANATORY MEMORANDUM
General
The Bill establishes a scheme for the protection and management of
Aboriginal cultural heritage in Victoria.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purpose of the Bill.
Clause 2 is the commencement provision.
The provisions of the Bill will come into operation on a day or
days to be proclaimed. The commencement of this Bill is open-
ended because it is intended to come into operation at the same
time as Schedule 2 to the Aboriginal and Torres Strait Islander
Heritage Protection Amendment Bill of the Commonwealth,
which is still before the Commonwealth Parliament. Once it
comes into operation, Schedule 2 of the Commonwealth Bill will
repeal Part IIA of the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 of the Commonwealth. Part IIA
of that Act contains provisions which, together with the
Archaeological and Aboriginal Relics Preservation Act 1972,
provide the current legislative framework for the protection
and management of Aboriginal cultural heritage in Victoria.
That legislative framework is to be replaced by the one provided
for in this Bill.
Clause 3 sets out the objectives of the Bill.
Fundamentally, the Bill seeks to protect and conserve Aboriginal
cultural heritage in Victoria through recognising Aboriginal
people as the primary knowledge holders, keepers and guardians
of Aboriginal cultural heritage.
Aboriginal heritage management is to be treated as an integral
part of land and resource management.
1
551341 BILL LA AS SENT 3/5/2006
Clause 4 defines terms used in the Bill.
The definition of "Aboriginal cultural heritage" means
Aboriginal places, Aboriginal objects and 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 public cemetery. 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 1982.
The definition of "Aboriginal object" refers to any object
relating to the Aboriginal occupation of Australia, which is
located in Victoria or Victorian coastal waters, and which is of
cultural heritage 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 a stone tool, a wooden
boomerang, and a kangaroo tooth necklace.
The definition of "Aboriginal tradition" covers a body of
traditions, observances, customs and beliefs, either general
amongst Aboriginal people, or specific to a particular Aboriginal
community or group.
It forms an element of the definition of "cultural heritage
significance", which includes "significance in accordance with
Aboriginal tradition".
It forms an element of the definitions of "traditional or familial
links", which is one of the criteria for application to be a
registered Aboriginal party under Part 10 Division 2.
It forms the primary element of the definition of "sacred" and
"secret", which describe objects occupying a special traditional
status. This status attaches particular rights, which are specified
in Part 2 Division 3.
2
"Cultural heritage significance" relates to the definition of
Aboriginal object and Aboriginal place, and includes Aboriginal
objects or places with archaeological, anthropological, spiritual,
contemporary, historical, scientific or social significance, and
Aboriginal objects and Aboriginal places that are significant in
accordance with Aboriginal tradition.
The definition of "development" has the same meaning as in the
Planning and Environment Act 1987.
"Relevant registered Aboriginal party" in relation to a matter
under this Bill means a registered Aboriginal party under
Part 10, which--
· in the case of a cultural heritage management plan, is
registered for the area to which the plan relates; or
· in the case of a cultural heritage agreement under Part 5,
is a party to that agreement; or
· in the case of a cultural heritage permit under Part 3
Division 4, provides advice under clause 39; or
· in the case of a protection declaration or application for
same, is registered for the area in which the protected
Aboriginal place is located, or from which the protected
Aboriginal object originated.
A registered Aboriginal party may also have relevant
responsibilities under this Bill for Aboriginal objects and
Aboriginal human remains reasonably believed to have
originated from the area of registration, even if those objects or
remains are not presently located within that area.
The definition of "use" has the same meaning as in the Planning
and Environment Act 1987.
The definition of "works" has largely the same meaning as in the
Planning and Environment Act 1987. Works also includes
any physical intervention, excavation or action that results in a
change to the structure, appearance or physical nature of a place.
Clause 5 The definition of "Aboriginal place" recognises the cultural
heritage significance of a place regardless of whether it is on
land which is freehold, leasehold or Crown reserve. Examples
of Aboriginal places include artefact scatters, scarred trees,
middens, rock art, stone arrangements, and former mission
buildings.
3
Clause 6 The definition of "native title party" refers to one of the matters
which the Council must take account when determining an
application to be a registered Aboriginal party under clause 151.
The definition covers not only current native title holders and
claimants registered under the Native Title Act 1993 of the
Commonwealth, but also recognises certain circumstances where
a claim has failed or where native title has been surrendered,
compulsorily acquired or extinguished.
Where a native title party applies to be registered as a registered
Aboriginal party, the area for which they may seek registration is
the same as the outer boundaries of the area in relation to which
their application for a determination of native title was made
under the Native Title Act 1993.
Clause 7 states what is meant by "traditional or familial links" in relation
to an area, Aboriginal human remains and secret or sacred
objects.
Traditional or familial links to an area is one of the matters
which the Victorian Aboriginal Heritage Council must take into
account in determining an application to be a registered
Aboriginal party under clause 151.
Traditional or familial links to Aboriginal human remains or
secret or sacred objects is the basis for ownership of those
remains or objects under Part 2.
Clause 8 clarifies that where an Aboriginal place or object or human
remains has suffered damage or change, this does not extinguish
its character as Aboriginal cultural heritage.
Clause 9 clarifies that the Coroners Act 1985 continues to operate
notwithstanding any provision of this Bill.
Primarily this refers to the Coroners Act provisions regarding
treatment of human remains relating to a notifiable death, and
clarifies that where these are the remains of an Aboriginal
person, the Coroners Act prevails over any applicable provision
of this Bill.
Clause 10 Clarifies the interaction between this Bill and the Native Title
Act 1993.
Clause 11 provides that the Bill binds the Crown in right of Victoria and,
so far as the legislative power of the Victorian Parliament
permits, the Crown in all its other capacities.
4
PART 2--OWNERSHIP AND CUSTODY OF ABORIGINAL
CULTURAL HERITAGE
Division 1--Underlying Principles
Clause 12 sets out two fundamental principles underlying Aboriginal
ownership and custody of Aboriginal cultural heritage.
The first recognises that Aboriginal cultural heritage in the form
of human remains and secret or sacred objects is owned by the
Aboriginal people who have traditional and familial links to that
heritage or to the area from which that heritage originates.
This principle seeks to redress the past treatment of these forms
of heritage as curios, commodities and objects for scientific
research.
The second recognises that where Aboriginal human remains or
secret or sacred objects are in the custody of the State, the State
should continue to hold them until they can be transferred to the
protection of their Aboriginal owners.
Division 2--Aboriginal Human Remains
Clause 13 establishes the ownership, on commencement, of Aboriginal
human remains by Aboriginal people with a traditional or
familial link to those remains, regardless of who owned them
previously.
Clause 14 Obliges the Minister to ensure that Aboriginal human remains
held by the State are transferred to the custody of the Museums
Board (governing body of the Museum of Victoria) as soon as
practicable after commencement.
Clause 15 provides a right for Aboriginal owners of remains in the
Museum Board's custody to ask the Board to either return them,
or to continue as their custodian. The latter option is provided in
recognition of the fact that in some cases owners may not have
the capacity or desire to protect and preserve remains.
The Museums Board must comply with such a request as far as
practicable, provided it is satisfied that the persons making the
request are the Aboriginal owners of the remains. The Board
may seek the advice of the Aboriginal Heritage Council in
determining whether a person is the owner of particular remains.
5
Clause 16 provides a right for Aboriginal owners of remains in the
possession of an institution other than the Museums Board to
negotiate with that institution for their return.
The negotiation can be either direct or indirect, with a right
provided for the person to ask the Minister to negotiate on his or
her behalf.
Clause 17 requires persons who become aware of the existence and
location of Aboriginal human remains to report the existence
and details of this fact to the Secretary of the Department which
has administrative responsibility for Aboriginal Affairs
(currently the Department for Victorian Communities).
This requirement does not apply to the Aboriginal owners of
Aboriginal human remains.
Failure to comply with this provision is an offence.
Clause 18 requires the Secretary, after receiving a report under clause 17,
and having verified that it relates to Aboriginal human remains,
to inform the person making the report of the circumstances in
which they must transfer the remains to the Secretary's custody
under clause 19.
It further requires the Secretary to decide what to do with the
remains, following consultation with any Aboriginal person
or body the Secretary believes may have a relevant interest.
In making this decision, the Secretary is limited by the options
specified in clause 20.
Clause 19 requires a person in possession of Aboriginal human remains,
other than those in or part of an Aboriginal place, to transfer
those remains to the Secretary's custody.
The Aboriginal owners of such remains are exempted from this
requirement, as is the State.
Failure to do so is an offence if the person knows, or ought
reasonably to know, or is reckless as to whether, the remains are
Aboriginal remains.
Clause 20 requires the Secretary to take one of three specified actions with
Aboriginal human remains transferred into his or her custody.
In the first place, the Secretary may transfer the remains to an
Aboriginal person or registered Aboriginal party which in the
Secretary's view is entitled and willing to take them.
The primary entitlement in this context will belong to the
owners of the remains. If the owners are not identifiable, or are
not willing to accept the remains, the Secretary will determine
6
what other Aboriginal person or body may have an appropriate
entitlement, and establish whether they are willing to take
possession of the remains.
Alternatively, if no such person or body is found, then the
Secretary must seek the advice of the Council and deal with the
remains in accordance with its directions.
If however no such reasonable directions are made, the Secretary
must transfer the remains to the custody of the Museum of
Victoria.
Division 3--Secret or Sacred Aboriginal Objects
Clause 21 establishes the ownership, from commencement of the clause, of
secret or sacred Aboriginal objects in the custody of the State by
Aboriginal people with a traditional or familial link to those
objects.
Clause 22 requires a State entity (that is, a person or body representing the
State) to comply to the greatest extent possible, with a request
from the owner of a secret or sacred object to either return the
object or continue as custodian of the object.
The State must be satisfied that the persons making the request
are the Aboriginal owners of the object, and may seek the advice
of the Aboriginal Heritage Council.
Clause 23 provides a right for Aboriginal owners of secret or sacred objects
in the possession of an institution other than a State body, to
negotiate with that institution for their return.
The negotiation can be either direct or indirect, with a right
provided for the person to ask the Minister to negotiate on his or
her behalf.
Division 4--Aboriginal Places and Objects
Clause 24 requires a person who discovers an Aboriginal place or object to
report that discovery to the Secretary.
Failure to do so is an offence if the person knew the place or
object was an Aboriginal place or object.
There is no obligation to report the discovery if the person had
a reasonable belief that the place or object was recorded in the
Aboriginal Heritage Register (and therefore had been previously
discovered and reported).
7
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 25 provides that a person who is otherwise entitled to the use and
enjoyment of land does not lose that right only because an
Aboriginal place or object 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
harm Aboriginal heritage.
Division 5--Role of the Museums Board of Victoria
Clause 26 provides the Museums Board of Victoria with the power to
accept custody of Aboriginal cultural heritage, including that
which is transferred under Part 2.
However the Museum's power to deal with unclaimed property
(including for example, to sell, exchange, lease or dispose such
property) under section 25 of the Museums Act 1983, is
expressly excluded in relation to Aboriginal human remains and
secret or sacred objects.
PART 3--PROTECTION OF ABORIGINAL CULTURAL
HERITAGE
Division 1--Protection from Harm
Clause 27 sets out the offence of harming Aboriginal cultural heritage.
"Harm" is defined in clause 4 to include injure, damage, deface,
desecrate or destroy.
The harming offence has three alternative parts.
The first and most serious relates to harm knowingly done by a
person who knows that the thing harmed is Aboriginal cultural
heritage.
The second relates to harm knowingly done by a person who is
reckless as to whether the thing harmed is Aboriginal cultural
heritage.
The third relates to harm knowingly done by a person who is
negligent as to whether the thing harmed is Aboriginal cultural
heritage.
All three are indictable offences, but with different penalties
depending on mental culpability.
8
Clause 28 Prohibits a person from deliberately doing an act which is likely
to harm Aboriginal cultural heritage.
This offence relates to such action by a person who knew at the
time that their act was likely to harm Aboriginal cultural heritage
(even if no harm eventuated).
This is an indictable offence.
Clause 29 sets out three exceptions which apply to offences under
clauses 27 or 28.
The first defence is that the person acted in accordance with the
terms of an applicable cultural heritage permit (under Part 3
Division 4) or cultural heritage management plan (under Part 4),
or in accordance with relevant Aboriginal tradition.
The second defence is that the person acted in the course of
preparing a cultural heritage management plan (under Part 4).
This refers to acts which were reasonably necessary for the
purpose of preparing the cultural heritage management plan.
The third 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.
Clause 30 provides that a person found guilty or convicted of an offence
under Clause 27 or 28 may be ordered by the court to pay money
towards the cost of repairing or restoring Aboriginal heritage
harmed as a result of the offence.
The money may be ordered to be paid to the State or the
Aboriginal Heritage Council, or a relevant registered Aboriginal
party, depending on which body the court regards as the most
appropriate recipient in the circumstances.
The court may in addition order an offender to take any
reasonable steps to rehabilitate land as a result of the offence, for
example to order a convicted landowner to fence an area
damaged.
Division 2--Acquisition and Grant of Land
Clause 31 provides for the Minister to acquire any land containing an
Aboriginal place, either by agreement or compulsory
acquisition.
9
In making a decision to acquire, the Minister must be satisfied of
two things--
· firstly, that the place is of such cultural heritage
significance to Aboriginal people that it could not be
replaced if damaged or destroyed; and
· secondly, that no practicable arrangements other than
acquisition would ensure its protection and
maintenance.
The procedures for the compulsory acquisition of land and
related compensation under this clause are set out in the Land
Acquisition and Compensation Act 1986, except in two
specific regards.
The exceptions are firstly that all land acquired under this clause
vests in the Crown, and secondly that no compensation will be
payable for any Aboriginal object or remains found on or in the
land.
Apart from these exceptions, the Land Acquisition and
Compensation Act 1986 applies, and for that purpose the Bill is
the special Act, and the Minister is the Authority.
Clause 32 provides that any land acquired under clause 31 may be granted
to a registered Aboriginal party or other Aboriginal person or
body, by the Governor in Council for the Crown.
The grant will be for an estate in fee simple, subject to any
restrictions which the Governor in Council may determine.
Such restrictions could include, for example, a condition that the
land must be used for Aboriginal cultural or other specified
purposes.
This clause overrides any conflicting provisions in the Land Act
1958.
Division 3--Control of Activities
Clause 33 prohibits a person from possessing an Aboriginal object
(as defined in clause 4) if at any time they knew, or ought
reasonably to have known, of its character as an Aboriginal
object. Such possession is an offence under this Clause, unless
specified exceptions apply.
The first exception is where the possession is authorised, either
specifically under this Bill, or by an applicable cultural heritage
permit (under Part 3), management plan (under Part 4) or
agreement (under Part 5).
10
The second exception is where the person is the owner of the
Aboriginal object.
The third exception is where the person possesses the object in
accordance with the consent of the object's owner. In this
context consent could be either express or implied.
The fourth exception is when the person has taken and retained
possession of the object in a way which was necessary in the
circumstances of an emergency. This refers to an act which was
otherwise lawful and reasonably necessary for the purpose of
protecting the object from a threat of harm arising from an
emergency (such as a bushfire).
Clause 34 prohibits specified activities and dealings with Aboriginal
cultural heritage, except in compliance with a cultural heritage
permit (refer Part 3 Division 4).
The specified activities are--
· disturbing land or excavating for the purpose of
uncovering or discovering an Aboriginal object or
place;
· scientific research on Aboriginal places, including
removing Aboriginal objects for that purpose;
· buying or selling Aboriginal objects; or
· removing Aboriginal objects from Victoria.
To make out this offence, the prosecution must prove the person
knew, or ought reasonably to have known, or was reckless as to
whether the heritage was Aboriginal heritage.
This offence does not apply to--
· acts done in preparing a cultural heritage management
plan;
· acts done in accordance with an approved cultural
heritage management plan;
· the removal of Aboriginal objects from Victoria by a
public entity (such as the Museums Board or Council of
Trustees of the National Gallery of Victoria), for the
purpose of lending items, or returning items received on
loan.
11
The provision does not apply to Aboriginal human remains or
secret or sacred objects, which can only be dealt with in
accordance with Part 2 Divisions 2 and 3.
Clause 35 provides for the forfeiture of Aboriginal objects to the Crown
following conviction for an offence against clause 34.
Division 4--Cultural Heritage Permits
Clause 36 provides that a person can apply to the Secretary for a cultural
heritage permit authorising specified activities relating to
Aboriginal cultural heritage (other than human remains or secret
or sacred objects).
These are--
· disturbing land or excavating in order to uncover or
discover an Aboriginal object;
· scientific research on Aboriginal places, including
removal of Aboriginal objects for that purpose;
· an activity that will, or is likely to, harm Aboriginal
cultural heritage;
· buying or selling Aboriginal objects (note that the
definition of Aboriginal object excludes objects that
wee made for the purpose of sale);
· removing Aboriginal objects from Victoria.
In relation to a permit to harm, this is an exception to the general
offence of harming Aboriginal cultural heritage, as provided in
clause 29(a)(i). Such permits may be issued only in restricted
circumstances (for example, to remove a scarred tree that
otherwise may damage or fall on a property). The specific
considerations which the Secretary must take into account in
determining such applications are set out in clause 40(4).
Clause 37 A permit must not be granted--
· in respect of Aboriginal human remains or secret or
sacred object; or
· an activity for which a cultural heritage management
plan is required under Part 4.
12
Clause 38 Before making a decision to grant or refuse a cultural heritage
permit under clause 40, the Secretary must provide a copy of the
permit application to any registered Aboriginal party for the area
to which the cultural heritage relates (if a place), or from which
it is reasonably believed to have originated (if an object).
The Secretary also has discretion, in accordance with the
regulations, to provide part of the prescribed application fee for
the permit to the registered Aboriginal party or parties, as
regulations may provide.
Clause 39 Within 30 days after receiving a permit application, a registered
Aboriginal party may advise the Secretary in writing of their
views. Specifically they may notify whether or not they object
to the application, and if they do object, specify the ground of
objection.
If the party does not object, it may also specify any conditions
on which its approval is given, including that something be done
to its satisfaction.
Conditions must be reasonable to be accepted by the Secretary
(see clause 41(1)(a)), and must not include the requirement to
make any payment in money or kind to the registered Aboriginal
party.
A party which is consulted under this clause may, before giving
its advice, request further relevant information from the
applicant. This includes the right to ask the occupier of any land
on or in which the subject heritage is located, for permission to
inspect that land. The registered Aboriginal party may request
the assistance of an inspector in conducting the inspection.
Clause 40 requires the Secretary to consider every permit application, and
provides a general discretion to make a decision on such
applications.
An exception to this discretion arises where a registered
Aboriginal party objects to an application within the permitted
30 days, in which case the Secretary must refuse to grant the
permit.
In the case of an application for a permit authorising an activity
that would harm Aboriginal cultural heritage or would be likely
to do so, the Secretary must consider specified matters.
These are 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 Secretary may also
take into account any other matters he or she deems relevant.
13
Clause 41 The Secretary must include in a permit any condition reasonably
required by a registered Aboriginal party under clause 39 and
ensure no other conditions conflict with those required by the
registered Aboriginal party.
The Secretary may also include other conditions in a permit.
These may relate to any relevant matter, including but not
limited to supervision of an activity by a cultural heritage
advisor, conservation of any Aboriginal cultural heritage
discovered, and a requirement that certain things must be done
to the Secretary's satisfaction.
PART 4--CULTURAL HERITAGE MANAGEMENT PLANS
Division 1--What is a Cultural Heritage Management Plan?
Clause 42 explains what is meant by a cultural heritage management plan.
A cultural heritage management plan is a written report of the
results of an assessment of an area to determine the presence and
nature of Aboriginal cultural heritage. The report must include
recommendations for measures to manage and protect any
Aboriginal cultural heritage identified in that area.
Clause 43 outlines the procedure for an assessment, which must be in
accordance with prescribed standards.
The assessment may involve activities including but not limited
to research, field studies, archaeological survey and excavation.
Clause 44 provides that the sponsor of a cultural heritage management
plan, that is the person responsible for commissioning the plan,
may be any person other than the Minister.
Clause 44(2) provides a non-exhaustive list of such sponsors,
including: the Secretary, local government, a registered
Aboriginal party or their representative, and the proponent of an
activity or their representative.
In practice it is likely that most cultural heritage management
plans will be undertaken by proponents of activities as a
mandatory requirement under this Bill. However, it is open to
other parties to undertake voluntary management plans to assess
the Aboriginal cultural heritage values of an area.
14
Division 2--When is a Cultural Heritage Management Plan
Required?
Clause 45 provides that a cultural heritage management plan may be
prepared voluntarily by any person.
Clause 46 provides that a cultural heritage management plan is mandatory
if the regulations or the Minister so require; or if clause 49
applies, that is if the activity requires an Environment Effects
Statement under the Environment Effects Act 1978.
Clause 47 provides for regulations to prescribe the circumstances in which
a cultural heritage management plan must be prepared in relation
to an activity.
Clause 48 enables the Minister to direct a person to prepare a cultural
heritage management plan before undertaking a proposed
activity.
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.
Knowingly commencing such an activity without preparing a
management plan as directed is an offence.
The Minister is required to notify a responsible authority that a
direction under this clause has been issued, within 14 days of its
issue. A "responsible authority" has the same meaning as in the
Planning and Environment Act 1987, and refers in most cases
to the relevant local council. This notification requirement is
intended to ensure that local government authorities are aware of
such restrictions on a proposed activity, where these are relevant
to a permit application for that activity.
Clause 49 makes the preparation of a cultural heritage management plan
mandatory for proposed works which require the preparation of
an Environment Effects Statement under the Environment
Effects Act 1978.
Both the management plan and the Environmental Effects
Statement must be prepared in accordance with all the applicable
requirements under the respective Acts.
The management plan must be approved before the works are
carried out.
15
Division 3--Other Authorisations Suspended Until Plan Prepared
Clause 50 defines some terms used in this Division.
"Earth resource authorisation" refers to a list of specific statutory
permits under "earth resource laws", i.e. Acts relating primarily
to mining, pipeline construction and operation, petroleum
exploration and production, and geothermal energy exploration
and extraction. These authorisations have been identified as the
final approvals required for activities governed by "earth
resource laws".
"Statutory authorisation" can be grouped into three categories of
authorisations--
· firstly, permits to use or develop land under the
Planning and Environment Act 1987;
· secondly, approvals defined as "earth resource
authorisations";
· thirdly, approvals under any other Act or regulation
relating to land development. In relation to this third
category of statutory authorisations, land development
approvals that are required to be obtained for the same
purpose as an earth resource authority are specifically
excluded. This is relevant to clause 52 (which requires
mandatory cultural heritage management plans to be
prepared before statutory authorisations are granted) and
is intended to clarify that for the earth resource sector,
the timing of preparing management plans is to occur
prior to their final approvals process.
The definition of "statutory authorisation" also captures certain
amendments to those three categories of authorisations.
"Decision maker" refers to the person or body with the power to
grant the relevant authorisation.
Clause 51 outlines when this Division applies, namely when a sponsor
proposes to carry out an activity which requires both a cultural
heritage management plan and a statutory authorisation before
carrying out the activity.
16
Clause 52 prohibits a decision maker from granting a statutory
authorisation for an activity unless a cultural heritage
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 decision-making process, up to but not
including the final decision on the authorisation before the plan
has been approved.
Clause 52(2) requires a sponsor to provide a decision maker
with a copy of the approved cultural heritage management plan.
This is to enable the decision maker to be able to proceed with
granting any relevant authorizations.
Clause 52(3) prohibits the decision maker from granting an
authorization for an activity that would be inconsistent with the
management plan.
Some statutory authorization regimes, for example planning,
require a decision maker to decide whether or not to grant the
authorization within a specified period. This requirement is
overridden in the case of authorizations for activities which also
require a cultural heritage management plan: clause 52(4)
provides that the decision period does not start until the
approved cultural heritage management plan is received by the
decision maker.
However, clause 52(5) clarifies that any time limits that apply to
preliminary decisions are not affected by clause 52(4) 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.
Division 4--Preparation of Cultural Heritage Management Plans
Clause 53 requires a sponsor to ensure that the preparation of a cultural
heritage management plan and the activities undertaken during
a heritage assessment meet prescribed standards.
Regulations will prescribe minimum standards for the conduct
and reporting of cultural heritage management plans.
These standards will be designed to ensure that plans are
conducted with, and make recommendations for, appropriate
levels of protection and management of Aboriginal cultural
heritage.
17
A management plan will not be approved if it does not comply
with the prescribed standards (see clauses 63, 65 and 66).
Clause 54 requires a sponsor to provide formal prior notice to specified
people of the intention to prepare a management plan.
These are the registered Aboriginal parties, the Secretary and
relevant landowners and occupiers.
Notification must include specified information, including name
and contact details, a description of the proposed activity, the
relevant area, and its start and end dates.
Clause 55 requires a registered Aboriginal party to advise the sponsor
within 14 days of receiving notice under clause 54, whether or
not it intends to evaluate a cultural heritage management plan.
The registered Aboriginal party is not obliged to evaluate a
management plan, but it must notify the sponsor even if this is
the case.
Clause 56 requires a sponsor to notify the Secretary if the registered
Aboriginal party either provides notice that it has decided not
to evaluate the cultural heritage management plan, or fails to
respond within 14 days.
Such notice is required because in either of these events the
Secretary assumes responsibility for evaluating the management
plan under clause 65.
Clause 57 outlines the procedure where an Aboriginal party becomes
newly registered on a date after the sponsor makes notification
under clause 54, but prior to the commencement of the
management plan's preparation.
In this case, the Secretary must give notice to the sponsor of the
contact details of the newly registered Aboriginal party.
The sponsor must then notify the newly registered party under
clause 54, and that party has the associated rights and obligations
under clauses 55 and 56.
This is to avoid newly registered Aboriginal parties being
unreasonably excluded from the notice, consultation and
participation processes, simply because their registration date
fell after the commencement of a notification by the sponsor.
18
However once the actual preparation of a cultural heritage
management plan has commenced, no Aboriginal party
registered after that date has any rights under this Division to
notice, consultation or participation in relation to that plan or
activity. This is to avoid sponsors being unreasonably delayed
by new registrations which occur after a plan's preparation has
commenced.
Clause 58 requires that a sponsor engage a cultural heritage advisor to
assist in preparing the cultural heritage management plan.
The qualifications, experience and knowledge of cultural
heritage advisors is set out in clause 189. People can only be
engaged as cultural heritage advisors if they have appropriate
qualifications in a discipline relevant to the management of
Aboriginal cultural heritage or extensive experience or
knowledge in relation to relevant Aboriginal cultural heritage
management.
This is to ensure that appropriate heritage management
techniques and standards are employed in the conduct and
recommendations of management plans.
Clause 59 outlines the general obligations of sponsors and registered
Aboriginal parties which have notified they intend to evaluate a
management plan.
The sponsor is obliged to make reasonable efforts to consult
with the registered Aboriginal party before and during the
preparation of the plan.
The registered Aboriginal party is obliged to make reasonable
efforts to work co-operatively with the sponsor in relation to the
plan.
Clause 60 provides that a registered Aboriginal party which provides notice
of its intention to evaluate a management plan with the
discretion to do a number of related things, including to consult
with the sponsor regarding the assessment and
recommendations, and to participate in the conduct of the
assessment.
One of the functions of the Secretary is to publish guidelines
regarding fees for these activities, to assist parties in negotiating
what is reasonable in the particular case (see clause 143).
19
Division 5--Approval of Cultural Heritage Management Plans
Clause 61 outlines the matters to be considered when evaluating a cultural
heritage management plan for an activity.
Clause 62 provides the process for a sponsor to seek approval of a cultural
heritage management plan, which a registered Aboriginal party
or parties has notified they intend to evaluate.
The sponsor must apply to all such registered Aboriginal parties
for approval and include any prescribed fee. A registered
Aboriginal party cannot require any other fee or charge for
evaluating the plan.
Where any or all of the matters specified in clause 61 are at issue
during the approval process, the sponsor and the registered
Aboriginal parties are obliged make all reasonable efforts to
reach agreement so as to facilitate an approval.
Clause 63 establishes the process for the registered Aboriginal party to
make a decision regarding the approval of a cultural heritage
management plan.
Within 30 days of receiving an application from a sponsor under
clause 62, a registered Aboriginal party must make a decision to
either approve or refuse to approve a management plan. It must
notify the sponsor of its decision in writing.
In the same period, it must also notify its decision in writing to
any other registered Aboriginal party which had notified its
intention under clause 55 to evaluate the plan.
Where a dispute regarding an evaluation arises between
registered Aboriginal parties, it may be referred to the Chair of
the Council for alternative dispute resolution by any of those
parties, or the sponsor, under clause 113. In that case, any
remaining part of the 30 day period for notification of decision is
suspended from the date the dispute is referred. The period
resumes only when the Chair of the Council certifies the
outcome of the alternative dispute resolution.
There are only two specified grounds on which a registered
Aboriginal party can refuse approval of a cultural heritage
management plan.
Firstly, a registered Aboriginal party must refuse approval of a
plan if the plan's preparation did not meet the prescribed
standards referred to in clause 53.
20
Secondly, a registered Aboriginal party may refuse to approve a
plan if it is not satisfied that the plan adequately addresses one or
more of the listed matters in clause 61.
Clause 64 provides that a cultural heritage management plan takes effect
when--
· the plan has been approved by each registered
Aboriginal party to whom the sponsor is required to
apply under clause 62; and
· the sponsor lodges the plan with the Secretary, along
with a copy of each notice of approval received under
clause 63(1)(b).
The only exception to this is where multiple registered
Aboriginal parties are required to evaluate a plan, and one or
more parties fail to provide a decision within 30 days, but the
other parties have approved the plan. In these circumstances,
the plan takes effect once the sponsor lodges the plan with the
Secretary together with the approval(s) received from the
registered Aboriginal party or parties under clause 63(1)(b).
Clause 65 provides for the Secretary to make a decision on approval of a
cultural heritage management plan in lieu of a registered
Aboriginal party, in specified circumstances. (None of these
apply where the Secretary is the sponsor.)
The circumstances when a sponsor may apply to the Secretary
for approval are where--
· no registered Aboriginal party exists for the relevant
area;
· no registered Aboriginal party gave notice to evaluate
the management plan within the 14 day period allowed
under clause 55; or
· all relevant registered Aboriginal parties notified the
sponsor under clause 55 that they had decided not to
evaluate the management plan; or
· no relevant registered Aboriginal party responded
within the 30 day period under clause 63(1) to an
application for approval.
21
The Secretary has 30 days from receiving an application to make
a decision to approve, or refuse to approve, the management
plan.
In making a decision, the Secretary must consult with any
Aboriginal person or body the Secretary considers relevant to the
matter, and give their views due consideration.
There are only two specified grounds on which the Secretary can
refuse approval of a cultural heritage management plan.
Firstly, the Secretary must refuse approval of a plan if the plan's
preparation did not meet the prescribed standards referred to in
clause 53.
Secondly, the Secretary may refuse to approve a plan if he or she
is not satisfied that the plan adequately addresses one or more of
the listed matters in clause 61.
Clause 66 provides for the Council to make a decision on approval of a
cultural heritage management plan in lieu of a registered
Aboriginal party, where the Secretary is the sponsor and
specified circumstances apply.
The circumstances when the Secretary may apply to the Council
for approval are where--
· no registered Aboriginal party exists for the relevant
area; or
· no registered Aboriginal party gave notice to evaluate
the management plan within the 14 day period allowed
under clause 55; or
· all relevant registered Aboriginal parties notified the
Secretary that they had decided not to evaluate the
management plan; or
· no relevant registered Aboriginal party responded
within the 30 day period under clause 63(1) to an
application for approval.
The Secretary has 60 days from receiving an application to make
a decision to approve, or refuse to approve, the management
plan.
In making its decision, the Council must consult with any
Aboriginal person or body it deems relevant to the matter, and
give their views due consideration.
22
There are only two specified grounds on which the Council can
refuse approval of a cultural heritage management plan.
Firstly, the Council must refuse approval of a plan if the plan's
preparation did not meet the prescribed standards referred to in
clause 53.
Secondly, the Council may refuse to approve a plan if he or she
is not satisfied that the plan adequately addresses one or more of
the listed matters in clause 61.
Division 5--General
Clause 67 provides that a sponsor of a plan must, within 14 days of the
plan being approved, provide to the Secretary all "assessment
documentation". This term refers to all documented information
prepared or obtained during the conduct of the assessment for
the cultural heritage management plan.
Such documentation may include records, photographs, maps,
plans, and any other type of document prescribed in regulations.
This requirement will assist in developing comprehensive State-
wide records of Aboriginal cultural heritage in Victoria.
Where a plan, or the activity to which it relates, does not
continue to completion, the sponsor must provide the Secretary
with notice of this decision, as well as all assessment
documentation gathered during the preparation of the plan.
The timeline for providing such notice and documents in relation
to discontinued matters is 14 days after the decision to
discontinue.
This will ensure that information relating to Aboriginal places
and objects is not lost if a plan or activity is discontinued before
completion.
PART 5--CULTURAL HERITAGE AGREEMENTS
Division 1--Making and Amendment of Agreements
Clause 68 explains what is meant by a cultural heritage agreement.
Cultural heritage agreements are voluntary agreements relating
to the management or protection of Aboriginal cultural heritage,
but do not deal with activities requiring either cultural heritage
permits under Part 3 or cultural heritage management plans
under Part 4.
23
Specified examples of such matters include (but are not limited
to)--
· protecting, maintaining or using land which contains an
Aboriginal place;
· protecting, maintaining or using Aboriginal objects;
· access and use rights to Aboriginal places and objects
for Aboriginal people;
· rehabilitation of Aboriginal places and objects.
By their nature it is expected that many such agreements will
involve local Aboriginal heritage partnerships, particularly
between private landowners and members of local Aboriginal
communities.
A cultural heritage agreement is legally binding and enforceable.
Clause 69 states who may be a party to a cultural heritage agreement.
Any person may be a party to such an agreement, including the
Secretary and any person responsible for the management of
Crown land (where relevant), and the owner of any other land
(where relevant). However, in any case at least one of the
parties must be a registered Aboriginal party.
Clause 70 sets out the formal requirements for a cultural heritage
agreement.
In the first place, an agreement must be in the approved form.
This will be developed and published by the Secretary prior to
commencement of this Part.
Where an agreement relates to Aboriginal cultural heritage
owned or possessed by a party, it may contain covenants that
bind that party.
Where an agreement relates to an Aboriginal place, it must
include information which clearly identifies that place, including
a map, plan or description of the boundaries of the affected land.
Regulations may prescribe standards for such maps.
Clause 71 allows for a cultural heritage agreement to be amended by
agreement between the parties (termed an "amending
agreement").
24
Clause 72 provides a limitation on when a cultural heritage agreement or
amending agreement can become effective under clause 73.
It requires the written consent of each registered Aboriginal
party for the area in which the Aboriginal place or object which
is the subject of the agreement is located or from which it
originated. This is to ensure that those parties are informed and
consent to the making of the agreement, which could be entered
into by a registered Aboriginal party from a different area.
It also ensures consultation and consent where there is more than
one registered Aboriginal party for an area, but only one of those
bodies is a party to the agreement.
Clause 73 provides when a cultural heritage agreement can begin.
Clause 74 provides when a cultural heritage agreement can end.
Division 2--Lodgement and Registration of Agreements
Clause 75 requires a cultural heritage agreement to be lodged with the
Secretary without delay by the "relevant registered Aboriginal
party" (defined as the registered Aboriginal party that is the
party to the agreement).
The relevant registered Aboriginal party must also formally
notify the Secretary of any amendment or cessation of an
agreement.
These provisions will assist the Secretary to fulfil his or her
obligation under clause 145(1)(e), which is to keep records of all
agreements made in Victoria on the Aboriginal Heritage
Register.
Clause 76 obliges the Secretary to apply to the Registrar of Titles to have
the agreement registered on the relevant land title if required by
a provision of the agreement.
This provides a means of notifying future potential purchasers of
land about obligations or restrictions which apply to that land
through the effect of a cultural heritage agreement.
Clause 77 specifies the effect of a registration on land title under clause 76.
In brief, obligations in an agreement so registered run with the
land, that is, they continue to apply to the land regardless of any
change of ownership.
The Secretary or the relevant registered Aboriginal party are
empowered to enforce any such obligation against the current
owner, as if it were a restrictive covenant.
25
Clause 78 provides that an owner of land bound by a covenant in an
agreement may apply to be released from that obligation. If the
land owner cannot reach agreement for the release with the
Secretary or the relevant registered Aboriginal party, the
landowner may apply to the Governor in Council to decide the
matter.
Clause 79 requires the Secretary to advise the Registrar of Titles without
delay in the event that a cultural heritage agreement which is
recorded on the land title ends or is amended.
The Registrar of Titles must then alter or remove the agreement
from the land title, as the case requires.
PART 6--CULTURAL HERITAGE AUDITS AND STOP
ORDERS
Division 1--Cultural Heritage Audits
Clause 80 explains what is meant by a cultural heritage audit.
A cultural heritage audit is an assessment of an activity's impact
on Aboriginal cultural heritage, with reference to an applicable
cultural heritage management plan or permit under this Bill.
It is a means of monitoring compliance with an approved
management plan or permit, in order to ensure that actual
impacts do not exceed, or substantially vary from, the proposed
or anticipated ones.
If the audit reveals such an impact, then certain obligations
follow, in order to prevent or remedy inappropriate harm
(see clause 86).
Clause 81 states when an audit may be ordered.
The Minister may order an audit on advice if he or she
reasonably believes certain grounds are present, namely--
· a sponsor of an approved management plan has
contravened recommendations of that plan, or is likely
to do so; or
· a cultural heritage permit holder has contravened a
permit condition, or is likely to do so; or
· the impact of an activity under an approved plan or
permit will be greater than was determined at the time
the plan or permit was approved.
26
Advice that one or more of these grounds exist can be provided
by the Secretary, Council or an inspector, and the Minister has
discretion as to whether to act on such advice.
If the Minister decides to order an audit, he or she must notify all
parties involved in the respective plan or permit, specifically the
sponsor of the plan and any registered Aboriginal parties which
evaluated it, or the holder of the permit and any registered
Aboriginal parties which consented to it.
Clause 82 requires the Minister, when ordering a cultural heritage audit, to
specify the matters to be addressed, and the period for the audit's
completion.
Clause 83 specifies the manner in which a cultural heritage audit is to be
conducted.
An inspector appointed under Part 11 of this Bill must conduct,
or direct the conduct of, an audit.
The Secretary may direct the sponsor or permit holder to engage
a cultural heritage advisor to conduct the audit. It is an offence
to fail to comply with such a direction. The "cultural heritage
advisor" must have the qualifications or experience set out in
clause 189.
Where an advisor conducts an audit, he or she will do so under
the direction of an inspector, and must comply with any
reasonable requirement of the inspector, including providing a
written report of the audit findings.
If the Secretary directs a sponsor or permit holder to engage an
advisor under this clause, the Secretary must pay the advisor's
fees and reasonable expenses relating to the audit.
Clause 84 specifies that an inspector who conducts or directs an audit must
provide the Minister with a written report of the audit findings.
The report may refer to certain matters, including but not limited
to--
· reporting apparent contraventions of the relevant plan or
permit;
· proposing amendments to the plan's recommendations
or the permit conditions;
· recommending access arrangements for inspectors to the
location of the relevant activity;
· recommending other measures to avoid or minimise
harm to Aboriginal heritage.
27
Clause 85 provides for the Minister to approve an audit report.
The Minister must not approve a report unless satisfied that its
recommendations meet the relevant prescribed standards.
This refers to standards prescribed in regulations under
clause 53, which apply also for the purposes of this clause.
Clause 53 refers to prescribed standards for the conduct and
reporting of cultural heritage management plans.
Clause 86 requires the Minister to notify his or her decision to approve an
audit report to any registered Aboriginal party for the area to
which the audit relates.
This requirement applies to all registered Aboriginal parties for
the relevant area, not only those which were involved in the
relevant plan or permit process.
Where the audit report relates to an approved cultural heritage
management plan, the Minister must also notify the relevant
sponsor of his or her decision to approve the report. Similarly,
where the report relates to a cultural heritage permit, the
Minister must notify the permit holder of the decision.
The Minister may amend the plan and the Secretary must amend
the permit in accordance with the report recommendations. In
that case the amended plan or permit becomes the approved
document for the purposes of this Bill.
Division 2--Stop Orders
Clause 87 provides for the issue of stop orders.
Stop orders are described in clause 89 and are essentially orders
to a person to either stop a specified activity, or refrain from
starting the activity.
Stop orders may be issued by either the Minister or an inspector
to a person in specified circumstances. These are where the
person is carrying out an activity, or proposes to do so, and the
Minister or inspector is satisfied on reasonable grounds that--
· the activity is harming Aboriginal cultural heritage or is
likely to do so; and
· that heritage could not be properly protected otherwise.
Harm in relation to cultural heritage is defined in clause 4 to
include injuring, damaging, defacing, desecrating or destroying.
28
A stop order must be in the approved form. The Secretary will
publish the approved form prior to commencement of this
Division.
Clause 88 requires that when the Minister orders a cultural heritage audit of
an activity under clause 81, 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 89 provides for two types of stop order to be issued to a person in
relation to a specified activity.
The first is an order requiring the person to stop the activity
immediately.
The second is an order prohibiting the person from starting the
activity.
If a stop order has been issued under clause 88 in relation to a
cultural heritage audit, it does not have the effect of preventing
any recommendations of the report for that audit from being
implemented. Therefore, if a requirement in a stop order
contradicts a recommendation of a relevant audit report, the
audit report overrides the effect of the stop order to the extent of
the contradiction.
This is to avoid a stop order having the unintended effect of
obstructing protective measures recommended by an audit
report.
Clause 90 specifies how a stop order is to be delivered.
A stop order must be delivered to the person to whom it applies
(including a body corporate), in one of three ways, either--
· in person; or
· if that is not reasonably practicable, by affixing the
order in a prominent position at the location of the
relevant activity; or
· if issued to a body corporate, by giving it to the person
who is apparently supervising the relevant activity by
that body.
29
Where the person authorised to deliver a stop order is required to
enter land or premises for this purpose, such entry is authorised
by this Bill. In all cases, such entry should be limited to the
extent and time reasonably necessary for the delivery.
Clause 91 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
an audit--in this case, the order operates until the audit report is
approved, at which time the Minister must revoke it under
clause 93.
Clause 92 provides the Minister with the power to extend a current stop
order for up to 14 days after the initial expiry date.
Clause 93 allows the Minister or an inspector to revoke a stop order.
The Minister can revoke a stop order issued by the Minister or
an inspector. An inspector can only revoke a stop order issued
by the inspector.
In relation to an audit, the Minister is required to revoke a stop
order once the audit report has been approved.
Clause 94 specifies the circumstances under which a further stop order may
be issued in respect of an activity.
The Minister or an inspector may issue a further stop order in
relation to an activity only if the circumstances relating to that
activity have substantially changed.
Stop orders are intended to provide one-off short term
"emergency" protection. If further protection is required in a
particular case, the appropriate measure will usually be a
protection order under Part 7.
However in some exceptional cases, a further stop order in
respect of the activity may be the most appropriate measure.
Such a case may arise where the circumstances of an activity
have substantially changed since the issue of an initial stop
order, and these provide a ground for the issue of a further stop
order under clause 94.
A further stop order operates in exactly the same way as an
initial stop order, and for example will operate for a time period
as provided in clauses 91 and 92.
30
Clause 95 provides that it is an indictable offence for a person issued with a
stop order to engage in any conduct that the person knows is in
contravention of the order.
PART 7--PROTECTION DECLARATIONS
Division 1--Interim Protection Declarations
Clause 96 specifies the circumstances in which an interim protection
declaration may be made.
Interim protection declarations are described in clause 97, and
are essentially Ministerial orders specifying measures for the
protection of particular Aboriginal places or objects, for a
limited period of time.
Interim protection declarations may be issued by the Minister in
relation to a place or object, where the Minister is satisfied
that--
· the place or object is an Aboriginal place or object; and
· the specified temporary protective measures are
appropriate in the circumstances, having regard to the
importance of maintaining the relationship between
Aboriginal people and the place or object.
For example, if a rare shell midden was discovered on an inland
sand dune that was being used for recreational purposes, an
interim protection declaration might be appropriate to protect the
area while a full assessment was conducted. The declaration
could prohibit access to the relevant area except for the purposes
of the assessment, for a sufficient period to allow completion of
an investigation, and consultation with relevant parties.
Depending on the outcome of the assessment other measures
might then be required: if for example the midden was to be left
in situ because it revealed rare and intact evidence of past
Aboriginal life in that area and it was considered important for
Aboriginal people to have continued access to the midden, then
an ongoing declaration might be made (under Division 2) to
protect the area.
An interim declaration may also be an appropriate measure to
follow a stop order. For example, if the midden was under
imminent threat of destruction from a recreational activity
(such as a car rally etc.), it might be most effective in the first
instance to impose a stop order on that activity to provide
emergency protection. Having addressed the immediate threat,
31
an interim declaration could then follow the stop order to
provide temporary protection to enable an assessment to occur.
The Minister may make an interim protection declaration on his
own initiative, or upon request from the Council or a relevant
registered Aboriginal party.
"Relevant registered Aboriginal party" is defined as the
registered Aboriginal party for the area--
· in which the Aboriginal place to which the declaration
or application relates is located; or
· from which the Aboriginal object to which the
declaration or application relates originated.
Clause 97 sets out the formal requirements for an interim protection
declaration.
In the first place, a declaration must be in the approved form.
This will be developed and published by the Secretary prior to
commencement of this Part.
A declaration--
· must include information which clearly identifies the
relevant Aboriginal object or place to which it relates.
For example a declaration relating to an Aboriginal
place should include a map, plan or description of the
boundaries of the relevant area. A declaration regarding
an object could include a photograph (if permitted),
drawing or detailed description of the object;
· must specify the measures required for the protection of
the relevant object or place, for example, measures that
restrict or prohibit access to an Aboriginal place or
interference with an Aboriginal object;
· may specify an individual or body who is responsible
for the required measures, if this is appropriate;
· must include any information prescribed by regulation.
Clause 98 specifies the term of an interim protection declaration.
An interim protection declaration operates for 3 months from the
time it is issued, or for such shorter time as is specified in the
declaration. Clause 101 provides that a declaration takes effect
once published in the Government Gazette.
32
The Minister may extend a declaration for one further period of
up to 3 months, provided this is done prior to 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
or a relevant registered Aboriginal party.
No further extension may be made, as interim protection
declarations 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 declaration, but an
ongoing one, under Division 2.
Clause 99 allows the Minister to amend or revoke an interim protection
declaration at any time, on his or her own initiative, or at the
request of the Council or a relevant registered Aboriginal party.
Clause 100 provides that before making, amending, extending or revoking
an interim protection declaration, the Minister must do certain
things.
In the first place he or she must consult the Council about the
proposal regarding the declaration.
Secondly, he or she must notify the proposal to any person the
Minister reasonably believes is likely to be affected by it.
Such notification must be made at least 14 days before the
proposal is to take effect.
The Minister must also provide these notified persons with the
opportunity to be heard in relation to the proposal.
Clause 101 requires the Minister to publish an interim protection declaration
in the Government Gazette and in a local newspaper circulating
in the area to which the declaration relates.
Where a declaration is amended, extended or revoked, this must
also be so published.
A declaration and any amendment, extension or revocation of
a declaration does not take effect until published in the
Government Gazette. This means that the period of the
declaration referred to in clause 98 does not commence until the
date of gazettal.
Clause 102 provides that contravening an interim protection declaration is
an offence, in certain circumstances.
Firstly, this applies to conduct (whether an act or omission)
which contravenes an interim protection declaration, where the
person engaging in the conduct knew of the existence of the
declaration at the relevant time.
33
Secondly, such conduct is also an offence where the person
engaging in the conduct was reckless as to the declaration's
existence, at the relevant time.
Provisions in the Crimes Act relating to attempts to commit an
indictable offence also apply to this offence.
Division 2--Ongoing Protection Declarations
Clause 103 specifies the circumstances in which an ongoing protection
declaration may be made.
Ongoing protection declarations are described in clause 104 and
are essentially Ministerial orders specifying measures for the
protection of particular Aboriginal places or objects, for an
unlimited period of time.
Ongoing protection declarations may be issued by the Minister
in relation to a place or object, where the Minister is satisfied
that--
· the place or object is an Aboriginal place or object; and
· the specified ongoing protective measures are
appropriate in the circumstances, having regard to the
importance of maintaining the relationship between
Aboriginal people and the place or object.
A rock art site may be an example of an Aboriginal place where
an ongoing declaration of preservation may be appropriate.
Such places are rare, may be vulnerable to damage and are
particularly important in Victoria because of their cultural value
to Aboriginal people and the relationship Aboriginal people have
to these areas.
The Minister may make a declaration on his or her own initiative
or upon request from the Council or a relevant registered
Aboriginal party.
"Relevant registered Aboriginal party" is defined as the
registered Aboriginal party for the area--
· in which the Aboriginal place to which the declaration
or application relates is located; or
· from which the Aboriginal object to which the
declaration or application relates originated.
34
Clause 104 sets out the formal requirements for an ongoing protection
declaration.
In the first place, a declaration must be in the approved form.
This will be developed and published by the Secretary prior to
commencement of this Part.
A declaration--
· must include information which clearly identifies the
relevant Aboriginal object or place to which it relates;
· must specify the measures required for the protection of
the relevant object or place;
· may specify an individual or body who is responsible
for the required measures, if this is appropriate;
· must include any information prescribed by regulation.
Clause 105 allows the Minister to amend or revoke an ongoing protection
declaration at any time, on his or her own initiative, or at the
request of the Council or a relevant registered Aboriginal party.
Clause 106 provides that before making, amending, extending or revoking
an ongoing protection declaration, the Minister must do certain
things.
In the first place he or she must consult the Council about the
proposal regarding the declaration.
Secondly, he or she must notify any person the Minister
reasonably believes is likely to be affected by the proposal.
Such notification must be made at least 14 days before the
proposal is to take effect.
The Minister must also provide these notified persons with the
opportunity to be heard in relation to the proposal.
Clause 107 requires the Minister to publish an ongoing protection
declaration in the Government Gazette and in a local newspaper
circulating in the area to which the declaration relates.
Where a declaration is amended, extended or revoked, this must
also be so published.
A declaration and any amendment, extension or revocation, does
not take effect until published in the Government Gazette.
35
Clause 108 provides that contravening an ongoing protection declaration is
an offence, in certain circumstances.
Firstly, this applies to conduct (whether an act or omission)
which contravenes an ongoing protection declaration, where the
person engaging in the conduct knew of the existence of the
declaration at the relevant time.
Secondly, such conduct is also an offence where the person
engaging in the conduct was reckless as to the declaration's
existence at the relevant time.
Provisions in the Crimes Act 1958 relating to attempts to
commit an indictable offence also apply to this offence.
Clause 108(7) provides that a person does not commit an offence
under this provision if the conduct which the person engaged in
was necessary because of an emergency.
Division 3--General
Clause 109 provides that interim and ongoing protection declarations have
an overriding effect in relation to--
· any other legislation or law;
· an approved cultural heritage management plan;
· a cultural heritage agreement; or
· any other agreement.
This ensures the effectiveness of interim and ongoing protection
declarations as the paramount means of protecting Aboriginal
objects and places.
Clause 110 permits a relevant registered Aboriginal party to arrange for
notices to be fixed at or near a place or object subject to an
interim or ongoing protection declaration, to indicate that the
declaration is in force.
If there is no registered Aboriginal party for the area, the
Secretary may fix such notices.
The registered Aboriginal party or Secretary may authorise
another person to place, repair, replace or remove notices on
their behalf. Such persons may enter the area for this purpose.
It is an offence to destroy, damage, remove or interfere with a
notice placed under this section without the authorisation of the
relevant registered Aboriginal party or the Secretary.
36
PART 8--DISPUTES REGARDING ABORIGINAL
CULTURAL HERITAGE
Division 1--Disputes Regarding Cultural Heritage Management
Subdivision 1--Alternative Dispute Resolution
Clause 111 defines "dispute" as used in this Division to mean a dispute
between registered Aboriginal parties relating to the evaluation
of a cultural heritage management plan.
Clause 112 clarifies that "alternative dispute resolution" includes mediation,
and a person conducting such resolution includes a mediator.
The term includes assistance at a preliminary stage of the
alternative dispute resolution process, including related advice to
the parties.
Clause 113 sets out the process for initiating alternative dispute resolution
and its timeline.
A sponsor of a cultural heritage management plan and/or a
registered Aboriginal party involved in the conduct or evaluation
of a management plan may refer a dispute for alternative dispute
resolution to the Chairperson of the Aboriginal Heritage
Council.
Upon receiving a referral, the Chairperson must within 30 days
arrange for a mediation of the dispute, or another alternative
dispute resolution process by a suitably qualified person.
This would include for example a person with a recognised
accreditation in alternative dispute resolution from the Law
Institute of Victoria, the Victorian Bar, the Institute of
Arbitrators and Mediators Australia, or the LEADR Association
of Dispute Resolvers.
Within 30 days of the initial referral date, the alternative dispute
resolution process must commence.
Clause 114 provides that the costs of alternative dispute resolution,
specifically the fees and charges of the person conducting it,
must be paid by the parties.
The proportion paid by each party will be subject to their mutual
agreement. However if no agreement on the matter can be
reached, then the parties shall pay in equal shares.
37
Clause 115 provides that anything said or provided in writing by a party
during the course of alternative dispute resolution is protected
from production in evidence in any subsequent legal proceeding.
The purpose of this provision is to ensure that parties can
communicate frankly and informally during alternative dispute
resolution, without fear that this may prejudice them in the event
that the dispute (or any other matter) becomes the subject of
legal proceedings.
Subdivision 2--Dispute Resolution in VCAT
Clause 116 provides a process for determination of disputes in the form of
review by the Victorian Civil and Administrative Tribunal
(VCAT). For the purposes of proceedings under this Part of the
Act, VCAT must be constituted by a member or members with
sound knowledge of, and experience in, Aboriginal cultural
heritage (see clause 197).
This avenue is available to a sponsor of a cultural heritage
management plan in one of three circumstances--
· firstly, where all relevant registered Aboriginal parties
have refused to approve the management plan under
clause 63;
· secondly, where a registered Aboriginal party has
refused such approval, and a dispute arising from this
refusal has been referred for alternative dispute
resolution, and the Chairperson of the Council has
certified in writing that alternative dispute resolution
has failed or is unlikely to resolve the dispute;
· thirdly, where the Secretary has refused to approve a
management plan under clause 65.
In any of these circumstances, a sponsor may apply for review
either within 28 days of receiving notice of the decision, or--
if they have requested a statement of reasons for decision--
within 28 days after receiving that statement (whichever date is
later).
38
This refers to a statement of reasons requested under section 45
of the Victorian Civil and Administrative Tribunal Act 1998
("VCAT Act"): a person considering application to VCAT for
review of a decision can request a statement of reasons from the
decision maker, and the decision maker must provide this
(section 46 VCAT Act). Failing voluntary provision, the
applicant may ask the Tribunal to make an order that the
statement of reasons be provided (section 47 VCAT Act).
Clause 117 sets out who are the parties to each type of proceeding.
The applicant in each case will be the sponsor.
The respondent in each case will be the decision maker--that is,
a registered Aboriginal party or parties in the case of decisions
under clause 63, or the Secretary in the case of decisions under
clause 65.
Clause 118 sets out the decisions which VCAT may make in relation to
applications for review.
These are either to approve the cultural heritage management
plan, to approve the plan with amendments, or to refuse to
approve the plan.
VCAT reviews the merits of the decision under dispute, and
makes a new decision as if it were the primary decision-maker.
Clause 119 sets out the matters which VCAT must consider before making
its decision, specifically any matter which the primary decision-
maker in each case (whether the registered Aboriginal party or
the Secretary) was required to consider when making the
decision under review.
Clause 120 sets out a specific matter of which VCAT must be satisfied
before making a decision to approve a cultural heritage
management plan. This is that the management plan provides
sufficiently for the management of the relevant activity in a way
that avoids harming Aboriginal cultural heritage.
Where such harm cannot be avoided, VCAT must be satisfied
that the management plan provides sufficiently for the
minimisation of the harm.
39
Division 2--Disputes Regarding Cultural Heritage Permits
Clause 121 provides a process for review by VCAT in the case of disputes
regarding cultural heritage permits for activities that will, or are
likely to, harm Aboriginal cultural heritage (under clause
36(1)(c)). Disputes in relation to other permits applied for or
issued under Part 3 Division 4 are not subject to review by
VCAT.
For the purposes of proceedings under this Part of the Bill,
VCAT must be constituted by a member or members with sound
knowledge of, and experience in, Aboriginal cultural heritage
(see clause 197).
Review is available to an applicant for a permit under clause
36(1)(c) where that application has been refused, or approved
subject to a condition which the applicant wishes to dispute.
In either of these circumstances, a permit applicant may apply
for review either within 28 days of receiving notice of the
decision, or--if they have requested a statement of reasons for
decision--within 28 days after receiving that statement
(whichever date is the later).
Refer to the note to clause 116 above regarding statements of
reasons under the VCAT Act.
Clause 122 sets out who are the parties to each type of
proceeding.
In each case, the applicant for review will be the permit
applicant.
The respondents in each case will be the Secretary as decision
maker, and any registered Aboriginal party who provided advice
to the Secretary under clause 39.
Clause 123 sets out the decisions available to VCAT, which are to either
grant the cultural heritage permit, to refuse it, or to grant the
permit with conditions.
Clause 124 sets out the matters which VCAT must consider and those of
which it must be satisfied before making its decision.
Firstly, VCAT must consider any matter which the Secretary
was required to consider when making the decision under
review.
Secondly, VCAT must consider any matter properly considered
by the registered Aboriginal party when objecting or not
objecting to the permit application, or requiring a permit
condition.
40
Thirdly, VCAT must be satisfied that if it grants the permit or
imposes a condition on the permit, the applicant will manage the
activity in a way that minimises harm to Aboriginal cultural
heritage.
The requirements on the Secretary under section 41(1) in
relation to the conditions that can be imposed on a permit do
not apply to limit VCAT in its decision.
Division 3--Disputes Regarding Protection Declaration Decisions
Clause 125 specifies the types of decision regarding protection declarations
which can be reviewed by VCAT.
These are collectively termed "protection declaration decisions",
and comprise decisions under Part 7 to make, extend, amend or
revoke an interim protection declaration; or to make, amend or
revoke an ongoing protection declaration.
Clause 126 provides a right to apply for VCAT review in the case of
disputes regarding protection declaration decisions.
This avenue is available to a person affected, or likely to be
affected, by such a decision.
Such a person may apply to the Tribunal for review, either
within 28 days of the decision being made or--if they have
requested a statement of reasons for decision--within 28 days
after receiving that statement (whichever date is the later).
Refer to the note to clause 116 above regarding statements of
reasons under the VCAT Act.
Clause 127 sets out who are the parties to each type of proceeding.
In each case, the applicant for review will be the person affected
or likely to be so by the relevant protection declaration decision.
The respondents in each case will be the Minister as decision
maker, and any relevant registered Aboriginal party--(that is a
registered Aboriginal party for the area where the Aboriginal
place or object which is the subject of the protection declaration
is located or originated).
Clause 128 sets out the decisions which VCAT may make in reviewing
protection declaration decisions.
VCAT may confirm the relevant decision, confirm it with
amendments, or set it aside and substitute a new decision.
41
With regard to amendment, VCAT could, for example, confirm
a decision to make a protection declaration over an area but vary
the access permissions in the declaration, allowing greater access
to the area for specific purposes or by specific people.
Clause 129 sets out the matters to which VCAT must have regard before
making its decision.
Firstly, VCAT must have regard to the importance of
maintaining the relationship between Aboriginal people and the
Aboriginal places and objects which are intended to be protected
by the declaration.
Secondly, VCAT must have regard to the respective interests of
the applicant, and any of the parties to the proceeding.
It is a matter for VCAT to determine, in the circumstances of
any particular case, how much weight it gives to each of these
considerations--and to any other matters it may consider
relevant, including the objectives of this Bill.
PART 9--ADMINISTRATION
Division 1--Aboriginal Heritage Council
Clause 130 establishes the Aboriginal Heritage Council ("the Council") as a
body corporate with attendant rights and obligations.
Clause 131 provides that the Council will be comprised of up to 11 members
appointed by the Minister.
Each member must be an Aboriginal person who is resident in
Victoria, and has demonstrated traditional or familial links to an
area in the State. They must also have, in the opinion of the
Minister, relevant experience or knowledge of Victorian
Aboriginal cultural heritage.
The term of office for each member will be no longer than
3 years, but a member may be reappointed if the Minister so
decides.
Clause 132 sets out the functions of the Council.
Its primary function is to provide advice to the Minister about a
wide range of specified matters relating to the protection of
Aboriginal cultural heritage in Victoria.
This includes advice to the Minister and Secretary about the
exercise of certain of their powers under the Act.
42
The Council also has specific decision-making functions,
including--
· decisions on applications relating to registration of
Aboriginal parties under Part 10;
· decisions on applications for approval of cultural
heritage management plans for which the Secretary is
the sponsor, under clause 66.
The Council has an educational function, to develop measures to
promote Victorian community awareness and understanding of
Aboriginal cultural heritage.
The Council has all the powers necessary for the performance of
its functions under the Bill.
Clause 133 specifies the functions of the Chairperson of the Council.
The office of Chairperson is an elected office under clause 138
(apart from the inaugural appointment under clause 131(2)), and
has any other functions and powers conferred on the Chairperson
under this Bill.
The Chairperson also has the specific function of arranging for
alternative dispute resolution in accordance with clause 113(2).
This relates to disputes between registered Aboriginal parties
regarding the evaluation of a cultural heritage management plan,
which have been referred to the Chairperson for resolution under
clause 113(1).
Clause 134 provides for the payment of members' fees, travel and other
allowances at the Minister's discretion.
Clause 135 sets out the circumstances when a member's appointment may
cease prior to the end of their appointment term.
In the first place, a member may voluntarily resign by sending
the Minister a written letter to that effect.
Secondly, a member may be removed from office by the
Minister, in specified circumstances.
These relate firstly to circumstances when, in the Minister's
opinion, the member cannot or has not performed their duties or
functions to a reasonable standard, or at all. This includes a
failure to attend three consecutive Council meetings without the
approval of the chairperson.
43
Secondly, a member's appointment automatically ends if he or
she becomes insolvent as specified, or is convicted of an
indictable offence (or one which would be indictable if
committed in Victoria).
Clause 136 sets out arrangements for filling a vacancy due to temporary
inability. This need could arise, for example, if a member
suffered an extended period of illness.
The Minister may appoint an acting member to fill such a
vacancy, on any conditions he or she sees fit and for any period
up to the term of appointment of the temporarily replaced
member. The temporary appointment may be terminated at any
time, as the Minister decides.
An acting member has all the functions of the temporarily
replaced member, and is entitled to remuneration or allowances
as determined by the Minister.
Clause 137 provides that further members may be co-opted to the Council as
the Minister decides, but such members do not have voting
rights and do not form part of a meeting quorum.
Clause 138 sets out the procedures for the election of a Chairperson and
Deputy Chairperson to the Council.
The inaugural Chairperson appointed by the Minister under
Clause 131(2) holds office until the Council holds its first
meeting. At that meeting, the Council must elect a new
Chairperson, and also a Deputy Chairperson, from amongst its
members.
Both will hold office for one year, and at the end of that term
will be eligible for re-election for a further year.
The quorum for a meeting to elect these office-bearers will be at
least two-thirds of the members, and election will be by majority
vote of those present.
Clause 139 sets out the procedures for the ordinary business of the Council.
For meetings of the Council other than those to elect office-
bearers, or to suspend or revoke a registration, a quorum is a
majority of the current membership.
Meetings must be chaired by the Chairperson, or if they are
absent, the Deputy Chairperson. If neither is in attendance, then
a member elected by members present will chair the meeting.
44
Where a matter of business requires a vote, it will be determined
by a majority of votes of those present. Where a vote is equally
divided, the person chairing will have a casting vote--that is a
second vote, which only arises in the event of a tie.
Meetings of the Council must be held at least once every
2 months, and more frequently if directed by the Minister.
Subject to the above, the Council may decide on its own
procedures in the conduct of its business.
Clause 140 sets out that an act or decision is not rendered invalid only
because it was made by the Council at a time when a member
position was vacant, or when a defect or irregularity affected the
appointment of a member.
Clause 141 protects Council members from liability for acts done or omitted
to be done in good faith in carrying out their functions and
powers under the Act.
Clause 142 requires Council members to declare conflicts of interest relating
to a matter before the Council for decision, and to refrain from
taking part in the making of such a decision.
Division 2--The Secretary
Clause 143 sets out the functions of the Secretary.
In sum, these include specific functions relating to decision-
making and the development of guidelines and standards, and
broad responsibilities for the enforcement of the Act, and for the
protection and promotion of public awareness of Aboriginal
cultural heritage in Victoria.
The Secretary has all powers necessary for the performance of
these functions.
Division 3--Victorian Aboriginal Heritage Register
Clause 144 requires the Secretary to establish and maintain the Victorian
Aboriginal Heritage Register.
The Secretary may amend a record, or remove it, to ensure the
Register's accuracy and currency.
45
Clause 145 sets out what information must be recorded in the Register.
There are three main categories of such records--
· firstly, details of all known Aboriginal cultural heritage
in Victoria, in the form of Aboriginal places, human
remains and private collections of objects;
· secondly, name, contact details and area of each
registered Aboriginal party; and
· thirdly, records of all Aboriginal cultural heritage
instruments made under the Act (permits, agreements,
management plans, declarations and stop orders).
This clause also provides the Secretary with the discretion to
register any other types of information which he or she deems
necessary for the purpose of protecting or managing Aboriginal
cultural heritage.
Clause 146 specifies who can access the Register and for what purpose.
As the Register is not a public document, only persons and
bodies expressly authorised under this clause can obtain access,
and only for the purpose specified.
These include--
· registered Aboriginal parties--for purposes relating to
their area of registration;
· Council members or public servants--for managing
Aboriginal heritage or maintaining or updating the
Register;
· cultural heritage advisors--for research relating to
management plans and audits;
· land owners--relating to their land;
· Crown land managers or controllers--relating to their
duties regarding the land;
· local government staff--relating to their functions and
duties that arise from their employment; or
· cultural heritage advisors appointed by developers,
purchasers, users or owners of private land, or managers
or controllers of Crown land, or local government
employees--for the purpose of obtaining information on
heritage relating to the relevant land.
46
All other access is prohibited with two exceptions.
These are: firstly, where all registered Aboriginal parties for the
relevant area formally consent to the requested access; and
secondly, if no such party exists, where the Council provides its
formal consent.
Clause 147 The Secretary may provide advice to any persons about whether
a specified record exists on the Register, unless to do so would
be likely to endanger any Aboriginal cultural heritage.
PART 10--REGISTERED ABORIGINAL PARTIES
Division 1--Functions of Registered Aboriginal Parties
Clause 148 states the functions of a registered Aboriginal party, namely to--
· act as a primary source of advice to the Minister,
Secretary and the Council, regarding Aboriginal cultural
heritage within its area;
· provide advice to the Minister regarding the repatriation
of Aboriginal cultural heritage relating to its area;
· consider and advise the Secretary on cultural heritage
permit applications relating to its area;
· evaluate and approve, or refuse to approve, cultural
heritage management plans relating to its area;
· enter into cultural heritage agreements;
· apply to the Minister for an interim or ongoing
protection declaration to be made;
· carry out any other functions conferred on it by the Act.
Clause 149 states that a registered Aboriginal party must act in good faith.
This requirement applies to all powers and functions of a
registered Aboriginal party under this Bill.
Failure to act in good faith can form the basis for the Council to
suspend or revoke a registration under clause 156.
47
Division 2--Application and Registration
Clause 150 specifies the requirements for an application to the Aboriginal
Heritage Council for registration as an Aboriginal party.
All applicants must be bodies corporate.
A body corporate can be for example--
· a co-operative under the Co-operatives Act 1996;
· a corporation under the Corporations Act 2001;
· a corporation under the Aboriginal Councils and
Associations Act 1976.
An application for registration must be on the approved form.
The Secretary will publish the form prior to commencement of
this Division.
Along with details of the name, address and contact details of
the applicant, an application must include details of the area for
which registration is sought. These must include a map or
written description detailing the boundary of the area, sufficient
to enable clear identification of the area.
The applicant must also submit a statement outlining the nature
of their relevant association with the area, either--
· their relationship or links with the area (for example,
traditional or familial links, or details of the group's
status as a native title party); or
· their historical or contemporary interest in the
Aboriginal cultural heritage of the area as well as any
relevant expertise in managing and protecting such
heritage.
Clause 151 specifies requirements governing the determination of
applications by the Council.
The Council must determine all applications within 120 days of
receipt.
Specific requirements apply to determining applications by
registered native title holders.
A registered native title holder is defined in clause 4 as a
registered native title body corporate under the Native Title Act
1993, or another entity which is the subject of a determination of
native title under that Act, and is registered as holding native
title rights and interests on the National Native Title Register.
48
If an applicant is a registered native title holder for an area
where a determination has been made that native title exists, the
Council must register the applicant for that area and must not
register any other applicant for that area.
Otherwise, in determining applications, the Council must take
into account--
· whether the applicant is a native title party for the area
subject to the application; "Native title party" is defined
in clause 6.
· the terms of any relevant native title agreement where
provided by parties to that agreement.
"Native title agreement" is defined in clause 3 as an indigenous
land use agreement registered on the Register of Indigenous
Land Use Agreements under the Native Title Act 1993--
· whether the applicant represents Aboriginal people with
traditional or familial links to the relevant area;
"Traditional and familial links" to the area is defined in
clause 7--
· whether the applicant represents Aboriginal people with
a historical or contemporary interest (or both) in the
Aboriginal cultural heritage of the relevant area. If this
is the case, the Council must also consider whether the
body has demonstrated expertise in managing and
protecting Aboriginal cultural heritage in that area;
· any grant of freehold title to an Aboriginal body under a
specific statutory power;
· whether the applicant has entered into an agreement
with the State of Victoria in relation to land and natural
resource management in the area to which the
application relates; or
· any other matter that the Council considers relevant.
If a registered native title holder decides to apply to the Council
in respect of a broader area than that where native title was
found to exist (as is contemplated by clause 6(3) of the Act), the
Council would consider the matters listed in clause 151(3) in
determination registration for that broader area.
49
In all cases, the Council must be satisfied the applicant is a body
corporate, and may ask the applicant, or any other relevant
person, for further information to assist in determining the
application.
The Council may ask the Secretary to help the applicant to
generate a map of the application area.
Clause 152 provides that a registration is effective on the day the Council
makes a determination that a body is to be the registered
Aboriginal party for an area.
Clause 153 provides that the Council may register more than one Aboriginal
party for an area in certain circumstances. This clause does not
apply to areas for which a registered native title holder is
registered under clause 151(2) (refer to the note for that clause
in relation to exclusive registration).
In all other cases, the Council may make a multiple registration
for an area if it is satisfied that this--
· will not unreasonably hinder any of the registered
Aboriginal parties for the area from performing their
functions or exercising powers under the Act;
· will not unreasonably hinder the effective operation of
the Act in any other respect.
It is expected that the normal situation in many areas of Victoria
will be that only one applicant will seek registration for that
area. However where more than one body applies for a single
area, multiple registration may be made (where all other
registration requirements are met).
The only limits on such registration relate to efficacy of
operation for the purposes of the Act.
In this regard the Council may consider a range of relevant
factors, relating for example to the ability of the applicants to
work together, including any existing arrangements or protocols
for this purpose, any history of cooperation between applicants,
the practical implications for decision making of multiple
parties, and so on.
Clause 154 requires the Council to notify the applicant, and the Secretary, in
writing as soon as practicable after a determination is made,
including the area registered and the date of determination.
The Secretary must enter in the Aboriginal Heritage Register
specified details of a determination, namely party name, contact
details and area.
50
Clause 155 allows the Council to vary a party's registration, provided this is
consented to by that party, and by all other registered Aboriginal
parties for that area.
A variation under this clause may include a change to the
boundary of the registered area. It may also include other
amendments as the Council sees fit.
Following a variation, the Council must provide written notice
of it to the registered Aboriginal party and to the Secretary, as
soon as practicable.
If the variation relates to the boundary of an area, the Secretary
must alter the Register to reflect the change.
Clause 156 allows the Council to suspend or revoke a registration under
certain circumstances.
In the first place, the Council may take such action if it believes
on reasonable grounds that the registered Aboriginal party has
failed to act in good faith, in relation to--
· considering a cultural heritage permit application, or
providing advice in relation to it;
· evaluating a cultural heritage management plan;
· entering into, or performing, a cultural heritage
agreement; or
· discharging any of its other functions or exercising
powers under this Bill.
A party's registration is automatically revoked if that party a
ceases to be a body corporate, or is placed under administration
or goes into liquidation.
A party's registration is automatically revoked in relation to an
area (or part thereof) if--
· a registered native title holder is subsequently registered
for the area or part of it; and
· a determination has been made that native title exists in
the relevant area or part.
(Refer to the note for clause 151(2) in relation to exclusive
registration.)
51
A registered Aboriginal party may request the Council to
suspend or revoke its registration, and the Council must comply
with such a request.
The Council must formally notify the Secretary of a revocation,
and the Secretary must alter the Register accordingly.
Clause 157 specifies the process for suspension or revocation under
clause 156.
In the first place, the Council must give a registered Aboriginal
party at least 28 days' notice of a proposal to revoke or suspend
its registration.
The Council must give the party an opportunity to be heard on
the proposal, both orally and in writing.
Such notice must--
· be in writing; and
· advise the party of the proposal; and
· advise the party of their right to be heard, and to make
oral and written submissions to the Council, at a
specified time and place.
The proposed arrangements for submissions should be
reasonable, providing sufficient notice to enable the party to
attend the hearing location. The arrangements should also allow
time for submissions to be received and considered prior to the
decision being made.
A decision of the Council to revoke or suspend a registration
may only be made by a majority of the Council, at a meeting
attended by at least two-thirds of the current membership.
Clause 158 allows an Aboriginal party to seek review by VCAT of a
decision by the Council under clause 156(1) to suspend or
revoke the party's registration for failing to act in good faith.
An applicant for review must apply to VCAT within 28 days
of--
· the decision being made; or
· receiving a statement of reasons for the decision; or
· receiving a decision not to provide a statement or
reasons, whichever is the later.
52
This refers to a statement of reasons requested under section 45
of the Victorian Civil and Administrative Tribunal Act 1998
("VCAT Act"): a person considering application to VCAT for
review of a decision can request a statement of reasons from the
decision maker, and the decision maker must provide this
(section 46 VCAT Act). Failing voluntary provision, the
applicant may ask the Tribunal to make an order that the
statement of reasons be provided (section 47 VCAT Act).
PART 11--ENFORCEMENT
Division 1--Inspectors
Clause 159 sets out the functions of inspectors.
These include to--
· monitor compliance with the Act;
· investigate suspected offences against the Act;
· direct cultural heritage audits;
· issue and deliver stop orders; and
· report to the Secretary regarding the inspector's
activities under this Bill.
Clause 160 specifies the process for appointing an inspector.
The Minister, after consulting with the Council, may appoint a
person as an inspector for a term of up to 5 years, provided the
person--
· is an employee under Part 3 of the Public
Administration Act 2004; or
· is appointed under another Act as an inspector,
enforcement officer or authorised officer. This is
intended to include park rangers, for example.
The person must also--
· in the opinion of the Minister, have appropriate
knowledge and experience in identifying and protecting
Aboriginal cultural heritage; and
· have completed a course of relevant training to the
satisfaction of the Minister. The Council may make
recommendations to the Minister regarding such
training; and
53
· be capable of carrying out the functions set out in
clause 159.
All inspectors will be paid for their services, in accordance with
their employment status with a Victorian public service body.
This contrasts with previous schemes, where Aboriginal cultural
heritage inspectors were honorary. All inspectors will also have
access to resources and training appropriate to their role.
It is proposed that a significant number of inspectors will be
Aboriginal persons.
Clause 161 provides for re-appointment of an inspector.
At the end of their appointment term, an inspector may be re-
appointed by the Minister, after consulting with the Council,
provided--
· the person continues to satisfy the criteria in clause 160;
and
· the person has satisfactorily completed any relevant
training specified by the Minister.
Clause 162 specifies the process for revoking or suspending the appointment
of an inspector.
The Minister must consult with the Council before revoking an
appointment or suspending it for a specified period of time.
Notice of suspension or revocation of a person's appointment
must be provided to the person in writing.
An inspector is deemed not to be an inspector during a period of
suspension. Accordingly, for that period an inspector cannot
perform any of the functions or exercise any of the powers of an
inspector under this Bill.
Clause 163 specifies when the appointment of an inspector ceases.
These are--
· when an inspector ceases to be an employee under the
Public Administration Act 2004; or
· if appointed under clause 160(1)(b), the inspector ceases
to hold the relevant appointment under another Act; or
54
· when the Minister revokes an appointment under
clause 162; or
· when a person resigns from their appointment as an
inspector.
Clause 164 requires the Secretary to issue inspectors with identity cards in
an approved form and containing a recent photograph of the
inspector.
A person who ceases to be an inspector, or who has their
appointment suspended, must return their card to the Secretary
immediately. A penalty of 5 penalty unit applies for non-
compliance.
Clause 165 requires an inspector to produce his or her identity card--
· before exercising any powers under the Act (except a
requirement made by post); or
· at any time while exercising such a power, if requested.
Division 2--Powers of Inspectors
Clause 166 confers on inspectors a general power to enter land or premises
during normal business hours, in order to carry out functions
under the Act.
An inspector may only make such entry if the occupier of the
land or premises consents to this, and the occupier is either
present or has provided prior written consent for the inspector
to enter in his or her absence.
Clause 167 provides that an inspector may enter land or premises for the
purpose of seeking the occupier's consent under clause 166(2),
if the inspector--
· enters only to an extent reasonably necessary to contact
the occupier; or
· enters an area which the inspector believes would
normally be open for entry by the public, in order to
contact the occupier.
When seeking the occupier's consent, an inspector must inform
the occupier of the matters listed in clause 167(2) and obtain a
signed acknowledgment from the occupier confirming they have
been informed of these matters before entering the land or
premises (see clause 167(3)). Where an occupier consents to
entry and search or to the seizure or taking of a thing, this must
55
be stated in the acknowledgement (including the date and time
the occupier consented). If an occupier signs any
acknowledgment under this clause, they must be given a copy
before the inspector leaves the land or premises. Failure to
produce an acknowledgement of specific consent during any
proceedings gives rise to a rebuttable presumption that the
occupier did not make such a consent.
Clause 168 provides that an inspector may enter and inspect any part of land
or premises already open to the public, at the time of entry and
inspection.
Clause 169 provides that an inspector may enter any land or premises other
than a private residence, for the purpose of directing a cultural
heritage audit or complying with an audit recommendation.
At least 2 days' notice must be given to the occupier, and entry
must be within normal business hours.
Clause 170 outlines the search powers which an inspector may exercise
upon entering land or premises under clauses 166 or 168.
For the purpose of monitoring compliance with the Bill, an
inspector may--
· search the land or premises;
· inspect, measure, test, photograph or film any part of the
land or premises or anything there present;
· take an extract or copy of any documents found;
· bring onto the land or premises any person reasonably
required to assist the inspector in his or her functions
under the Act;
· bring in any equipment reasonably required by the
inspector to perform his or her functions.
Clause 171 provides an inspector with a limited power to seize a thing found
without a search warrant, provided the occupier consents to the
seizure.
With such consent, an inspector who enters land or premises
under clauses 166 or 168 may seize any thing found, if he or she
reasonably believes it is evidence of an offence committed
against this Bill.
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Clause 172 provides an inspector who enters land or premises under
clauses 166, 168 or 169 with a limited power to seize a thing
found, without the occupier's consent and without a search
warrant.
This power is only provided where it is needed to prevent the
commission of specified offences of a particularly serious
nature.
An inspector may make such seizure without consent or warrant
only if--
· an Aboriginal object, which the inspector reasonably
believes is being offered for sale, or has been sold, or is
being removed, or is at immediate risk of removal, from
Victoria-- in contravention of clause 34; and
· Aboriginal human remains, which the inspector
reasonably believes are being held in breach of
clause 19.
Clause 173 provides inspectors with the power to apply to a magistrate for a
search warrant.
A warrant may be issued if the magistrate is satisfied that there
are reasonable grounds for believing that an offence against this
Bill has occurred or is likely to occur.
The warrant may authorise an inspector, together with a member
of the police or any other person whose assistance is necessary,
to--
· enter the place named or described in the warrant; and
· search for or seize things named or described in the
warrant.
"Place" is defined as including land, premises and a vehicle.
A limited power exists for an inspector to seize a thing which is
not named or described in the warrant, if the inspector
reasonably believes that the thing is evidence of the commission
of an offence against the Bill, and that its seizure is necessary to
prevent its concealment, loss or destruction.
Search warrants issued must be in accordance with the
Magistrates' Court Act 1989 and the regulations under that
Act.
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In addition, warrants must state the suspected offence, the place
to be searched and description of the thing to be searched for, the
authorised hours of entry, and any conditions which apply to the
warrant.
A warrant issued under this clause will only be effective for a
maximum of 7 days.
Clause 174 requires the inspector to do certain things before executing a
search warrant.
In the first place, the inspector must announce to any persons
present that he or she is authorised under a search warrant to
enter the place, and must provide any such persons with an
opportunity to allow entry into the place.
However no such announcement or opportunity need be
provided if the inspector believes on reasonable grounds that
immediate entry is necessary in order to ensure the safety of any
person, or the effective execution of the warrant.
Clause 175 requires the inspector to identify themselves to any occupier or
apparent occupier present at the place when the search warrant is
executed. The inspector must produce his or her identity card
for inspection and give to the person a copy of the warrant.
Clause 176 requires an inspector to provide a receipt for any thing seized, to
the person apparently in possession or custody of that thing.
The receipt must be posted to the person as soon as practicable.
The receipt must identify the thing, and state the name of the
inspector, and the reason for the seizure.
If an inspector cannot determine the identity of the relevant
owner or custodian, then the inspector must post the receipt to
the owner of the place, land or premises from which the seizure
was made.
Clause 177 specifies that an inspector must take reasonable steps to secure a
thing seized under this Bill and prohibits a person from
tampering or interfering with a seized thing, without the
approval of an inspector.
Clause 178 provides for the transfer to the Secretary of things seized, which
an inspector believes are Aboriginal human remains or
Aboriginal objects.
Such remains or objects must be transferred by the inspector into
the custody of the Secretary within 7 days of their seizure.
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In the case of transferred Aboriginal human remains, the
Secretary must deal with these in accordance with Part 2 of this
Bill.
If the things seized are found not to be Aboriginal objects or
remains, then the Secretary must as soon as practicable ensure
they are returned to the person from whom they were seized.
Clause 179 provides that an inspector must generally take reasonable steps
to return any thing seized under the Bill, to the person from
whom it was seized, within 4 months of the seizure.
Specific exceptions to this requirement are where--
· the thing seized is an Aboriginal object or Aboriginal
human remains and therefore to be dealt with in
accordance with clause 178; or
· proceedings have commenced within the four month
period but have not yet been completed.
Clause 180 authorises an inspector to require a person to give their full name
and usual address, if the inspector reasonably suspects that the
person has committed, or is committing, an offence against the
Bill.
If the person concerned is a body corporate, the inspector may
require the business name, and the address of the person's usual
place of business.
Upon making a request for a person's name and address, the
inspector must advise the person of the grounds for suspecting
that an offence against the Bill has or is being committed.
This must be sufficiently clear and detailed to allow the person
to understand the nature of the offence or suspected offence.
The inspector must also warn the person that failure or refusal to
comply with an inspector's request under this clause, without
reasonable excuse, is an offence.
Clause 181 specifies that an inspector who enters land or premises under this
Bill may require any person present to provide assistance, give
information, or produce any document, reasonably required by
the inspector in order to exercise a power or perform a function
under this Bill.
Failure or refusal to comply with such request, without a
reasonable excuse, is an offence, and an inspector must warn the
person of this.
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However, they must also advise the person that it is a reasonable
excuse for non-compliance if the person does so on the ground
that the information or document would tend to incriminate
them.
Clause 182 authorises an inspector to take affidavits for a purpose which
relates, or is incidental to, their performance of functions or
powers under this Bill.
Clause 183 provides that it is an offence for any person, in response to an
inspector's request under this Division, to give information or
produce a document which that person knows to be materially
false or misleading.
Division 3--General
Clause 184 requires an inspector who enters a place lawfully but in the
absence of the occupier, to provide a written report to the
occupier. "Place" here means land, premises or a vehicle.
The report must include--
· the time of entry and departure;
· the purpose of entry;
· a description of things done, including any photographs
taken or sketches made;
· a summary of the inspector's observations; and
· the procedure for contacting the inspector for further
details about the entry.
Clause 185 provides that it is an offence to knowingly impersonate an
inspector in his or her official capacity, or without reasonable
excuse, to obstruct or hinder an inspector in performing
functions or powers under this Bill.
Clause 186 provides that only the Secretary or a member of the police force
may take proceedings for an offence under this Bill.
In the case of indictable offences, proceedings may only be
commenced with the written consent of the Director of Public
Prosecutions.
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Clause 187 sets out evidentiary rules which apply for proceedings for
offences under this Bill.
For proceedings for an offence involving the contravention of a
stop order or a declaration, the stop order or declaration is
evidence that the object or place in respect of which it was
issued or made is an Aboriginal object or place.
For any proceedings relating to an offence against this Bill--
· a certificate signed by the Minister certifying the
identity of an inspector is evidence of that fact;
· a certificate signed by the Minister responsible for
administering the Conservation, Forests and Lands
Act 1987, identifying land as Crown land, is evidence
of that fact;
· a certificate signed by the Secretary stating that a
cultural heritage permit has not been issued in respect
of particular Aboriginal cultural heritage is evidence of
that fact;
· a certificate signed by the Secretary stating that an entry
on the Heritage Register has been made is evidence of
that fact;
· a certificate signed by the Chief Executive Officer of
the Museums Board to the effect that an Aboriginal
object is an Aboriginal object is evidence of that fact.
PART 12--GENERAL
Clause 188 specifies the Minister and Secretary's delegation powers.
Clause 189 specifies who may be engaged as a cultural heritage advisor
under this Bill.
A person engaged as a cultural heritage advisor must either hold
appropriate qualifications in an area directly relevant to the
management of Aboriginal cultural heritage, such as
anthropology, archaeology or history, or must have extensive
experience or knowledge in relation to the management of
Aboriginal cultural heritage.
The Minister may, after consulting with the Council, make
guidelines specifying appropriate qualifications for the purposes
of this clause.
Any guidelines made by the Minister under this clause must be
published in the Government Gazette.
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Clause 190 provides that the Secretary may approve forms to be used under
this Bill.
All forms approved by the Secretary must be published on the
Department's website.
Clause 191 authorises the Minister, under certain circumstances, to order
remissions in whole or part of any land tax or rates payable by a
land owner.
An order may only be made if the Minister believes on
reasonable grounds that the conditions of a cultural heritage
agreement to which the State is a party, or an ongoing protection
declaration, restrict a person's use of the land such that
compliance with the declaration or agreement is not
economically feasible.
Before making an order relating to a remission of land tax, the
Minister must obtain agreement from the Treasurer.
Before making an order relating to a remission of rates payable,
the Minister must first consult with the relevant rating authority,
and obtain the agreement of either the rating authority or the
Minister administering the legislation under which the rating
authority is constituted.
Clause 192 requires the Secretary to report on the operation of this Bill in
the Department's annual report under the Financial
Management Act 1994.
The Secretary must specifically report on--
· inspectors' exercise of powers, functions and duties
under the Bill;
· any complaints (without reference to information which
may identify a person) received in relation to the
inspectors, and steps taken by the Department to address
these complaints.
Clause 193 requires the Minister to conduct a review of the operation of this
Bill within 5 years of the commencement of this clause.
Clause 194 sets out the matters in respect of which the Governor in Council
may make regulations.
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PART 13--REPEAL, SAVING AND TRANSITIONAL
PROVISIONS AND AMENDMENTS OF ACTS
Clause 195 repeals the Archaeological and Aboriginal Relics
Preservation Act 1972.
Clause 196 specifies that Schedule 1 contains saving and transitional
provisions. Clause 11 of Schedule 1 enables regulations made
under the Bill to contain provisions of a savings and transitional
nature, and further provides that these provisions may be made
retrospective in operation to a day on or after the
commencement day. This power of retrospectivity has been
included in Schedule 1 to ensure that the savings and transitional
provisions in the regulations will operate effectively.
Clause 197 inserts a new Part 1A into Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 to constitute the Tribunal
for proceedings under Part 8 of the Act to ensure a member or
members have sound knowledge of, and experience in,
Aboriginal cultural heritage.
Clause 198 provides for the operation of the amendments specified in
Schedule 2, namely the consequential amendments to other
specified Acts.
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