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CLAUSE NOTES
Aboriginal Relics Amendment Bill 2017
Clause 1 Short Title
Clause 2 Commencement
This Act will commence on a day to be proclaimed.
Note: it is intended that the Minister will issue the guidelines (see
new section 21A) on commencement – ie when the amendments
come into force.
Clause 3 Principal Act
Identifies the Aboriginal Relics Act 1975 as “the principal Act”, which is
how it is hereafter referred to.
Clause 4 Section 1 amended (Short title and commencement)
This clause replaces subsection (1). The effect is to replace “Relics”
with “Heritage” in the short title of the principal Act, thus changing it
to “Aboriginal Heritage Act 1975”.
This is all that is required to change the name of the Act.
Clause 5 Section 2 amended (Interpretation)
Paragraph (a) replaces the definition of “Council” so that it refers to
the new Aboriginal Heritage Council established under section 3,
rather than to the superseded Aboriginal Relics Advisory Council.
Paragraph (b) inserts a new definition to refer to the current version
(“in force”) of the new guidelines.
Paragraph (c) inserts a new definition of “small business entity”, which
is defined by reference to the Commonwealth’s income tax
legislation (see Note 2 under clause 9 below for explanation).
Paragraphs (d) and (e) amend the definition of “relic” in
subsection (3)(a) by inserting “, which is of significance to the
Aboriginal people of Tasmania”.
Paragraph (f) amends the definition of “relic” in subsection (3)(b) by
inserting “, which is of significance to the Aboriginal people of
Tasmania”.
Paragraph (g) amends the definition of “relic” in subsection (3)(c) by
deleting the words “who died before the year 1876”.
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Paragraph (h) has 2 effects:
o first, it deletes the current subsection (4), which limits the
definition of “relic” to anything made or created before 1876; and
o second, it inserts a new subsection (4) that provides the
qualification that objects made or likely to have been made for
the purposes of sale are not relics. (A provision in similar terms is
common in heritage legislation around Australia.)
Paragraph (i) inserts a new subsection (8) that provides two
definitions for the purposes of this section:
o “significance”, in relation to a relic, is defined to refer to the
archaeological, scientific, anthropological or contemporary history
of Aboriginal people, or to Aboriginal tradition. (Note also the
amendment made in clause 7(b) below.)
o “Aboriginal tradition”, which is referred to in paragraph (d) of the
definition of “significance” and in new section 2(4), is defined in
terms very similar to those found in comparable legislation of the
Commonwealth and other jurisdictions.
Clause 6 Part II heading amended
This clause amends the heading of the Part to refer to the “Aboriginal
Heritage Council” rather than the “Aboriginal Relics Advisory
Council”.
Clause 7 Section 3 amended (Establishment of Aboriginal Heritage Council)
Paragraph (a) replaces subsection (1) with a provision for the
establishment of the Aboriginal Heritage Council.
Paragraph (b) inserts a new paragraph (ab) after paragraph (2)(a), to
provide that the Council shall advise the Minister in relation to
anything alleged to be a relic. (The Council is thus able to assist in
cases where there may be doubt about the application of the Act.)
Paragraph (c) inserts a new subsection (2A) to clarify that, for the
purpose of providing the advice referred in new section 3(2)(ab), the
Council is to seek relevant information and expert advice.
Paragraph (d) inserts a new subsection (6) that provides that, where
appropriate and practicable, the Council is to consult the Aboriginal
people of Tasmania.
Clause 8 Sections 4, 5 & 6 substituted
This clause replaces three lengthy sections with two short ones.
New section 4, “Membership of Council”, provides that the Council
will consist of not more than 10 members, appointed by the Minister,
all of whom are to be Aboriginal persons, and one of whom shall be
appointed by the Minister as the Chairperson. The Minister will
appoint members on such terms and conditions as he or she
considers appropriate.
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New section 5, “Powers of Council”, provides in the simplest terms
that the Council will have the necessary powers to perform its
functions, and may regulate its own proceedings.
Clause 9 Section 9 amended (Protection of protected sites)
Note 1: The existing wording of subsections 9 (1) and (2) of the
principal Act is not amended, but new subsections are inserted to
follow them, which create tiered offences and corresponding tiered
penalties. The penalties go up to the highest level set for the
amended Act. (See also clause 12 below.)
The practical application of the amendments to section 9 is very
limited, however, as this section applies only in declared protected
sites. There are three of these: West Point Aboriginal Site (Statutory
Rule 1979, No. 217), Sundown Point Aboriginal Site (Statutory Rule
1979, No. 235) and Maxwell River Protected Archaeological Site
(Statutory Rule 1986, No. 6). All have in practice been managed as
part of the reserves, under the Nature Conservation Act 2002, within
which they are located.
Note 2: The new penalty amendments in this clause see the first
application in the Bill of the term “small business entity”, now defined
in section 2, which then appears in all remaining penalty provisions. It
is used in order to confine the application of the higher penalties that
may be imposed on bodies corporate to businesses other than those
defined as small business entities. The Commonwealth’s Income Tax
Assessment Act 1997 defines a small business entity as a business
(including its associated affiliates) that has an aggregated turnover of
less than $2 million a year.
This definition is used because it is universally understood, in the
sense that all businesses are aware of whether they fall into this
category, which has a different tax rate and has access to a number of
significant concessions (including some specifically for primary
producers). Its use in this context recognises that many small
businesses and farms, which are often operated wholly or mainly by
one person or a family, would otherwise fall into the same category
as the largest businesses simply because they are organised as bodies
corporate.
The new penalty provisions all therefore apply the two applicable
maximum rates to, respectively, “a body corporate, other than a small
business entity” for the higher penalties, and “an individual or a small
business entity” for the lower penalties.
Paragraph (a) inserts new subsections (2A) and (2B) after
subsection (2). Both create offences and provide penalties for the
contravention of the provisions of subsections (1) and (2), in relation
to either a relic or object, or a site.
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(2A) covers deliberate acts. It provides that contravention “knowing,
at the time of the contravention” that the relevant relic, object or site
was a “protected object” or “protected site” (defined in section 7 of
the principal Act) carries penalties of up to 10,000 penalty units
(currently $1.57 million) for a body corporate other than a small
business entity or 5,000 penalty units (currently $785,000) for an
individual or a small business entity.
(2B) covers acts that are “reckless or negligent” in relation to the
same provisions. The penalties are up to 2,000 penalty units
($314,000) for a body corporate other than a small business entity or
1,000 penalty units ($157,000) for an individual or a small business
entity.
Paragraph (b) inserts the single word “protected”. (This has no
substantive effect but is a minor drafting improvement.)
Paragraph (c) inserts a new subsection (4) that allows a court to find
a defendant guilty of an offence with a lesser penalty than the one for
which the original charge was laid. In effect, this allows a court to find
a person guilty of a reckless or negligent offence, should a charge of
knowingly offending not be made out. (This is similar to the offence
provisions in, eg, the Environmental Management and Pollution Control
Act 1994 at sections 50-53, and avoids the possibility of a person
escaping without appropriate penalty only because they are not
found guilty of a more serious but closely related charge.)
Clause 10 Section 10 amended (Duties of persons owning or finding, &c., relics)
This is the first section of the principal Act which becomes subject to
the new minor penalty range. The provision of this section that is
most significant is 10(3), under which there exists the obligation to
report if a relic is found. That provision underpins the operation of
the non-statutory Aboriginal Heritage Register.
This clause replaces the current penalty provision at subsection (7)
with a new one. The operative words remain the same. It provides
for maximum penalties of 100 penalty units ($15,700) for a body
corporate other than a small business entity or 50 penalty units
($7,850) for an individual or a small business entity.
Clause 11 Section 12 amended (Acquisition of relics by the Crown)
This is another case like the amendment in clause 10 above. It is
included for consistency. The practical effect is likely to be minimal, as
the process outlined in this section has not been used for many years,
if ever.
This clause replaces subsection (8) with a new one. The operative
words remain the same and the only change lies in the addition of
the penalty provision. It provides for maximum penalties of
100 penalty units ($15,700) for a body corporate other than a small
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business entity or 50 penalty units ($7,850) for an individual or a
small business entity.
Clause 12 Section 14 amended (Protection of relics)
Note: This section is amended in a similar way to section 9 (see
clause 9 above). The current subsection 14(1) of the principal Act is
not amended but new tiered offences (including the requisite state of
mind) and corresponding tiered penalties are set out in new
subsections (1A) and (1B), which relate to subsection (1)(a)-(e). A
separate new subsection (1C) refers to subsection (1)(f), where the
accused’s state of mind is not relevant. The penalties go up to the
highest level set for the amended Act.
This clause contains the key amendments in terms of penalties. The
current administration of the Relics Act revolves mainly around the
offences in this section. For instance, permits under the Act are
granted in relation to this section and compliance and enforcement
efforts are based on it. In relation to harm to Aboriginal heritage,
section 14 is therefore the key to providing effective deterrence and
proportionate punishment.
Paragraph (a) inserts new subsections (1A), (1B) and (1C) after
subsection (1). (1A) and (1B) create tiered offences and provide
tiered penalties for the contravention of the provisions of
section 14(1)(a)-(e). The separate offence in (1C) is because the act
under the specific provision to which it refers (section 14(1)(f))
cannot be undertaken other than deliberately. However, any harm
that might result would be covered by other paragraphs of
section 14(1) and it is considered disproportionate to impose the top
level of penalty for the offence.
(1A) covers deliberate acts. It provides that contravention “in relation
to a relic knowing, at the time of the contravention, that it is a relic”
carries penalties of up to 10,000 penalty units (currently
$1.57 million) for a body corporate other than a small business entity
or 5,000 penalty units (currently $785,000) for an individual or a small
business entity.
(1B) covers acts that are “reckless or negligent” in relation to the
same provisions. The penalties are up to 2,000 penalty units
($314,000) for a body corporate other than a small business entity or
1,000 penalty units ($157,000) for an individual or a small business
entity.
(1C) covers contravention of section 14(1)(f), to “cause an
excavation to be made or any other work to be carried out on
Crown land for the purpose of searching for a relic”. The penalties
are up to 2,000 penalty units ($314,000) for a body corporate other
than a small business entity or 1,000 penalty units ($157,000) for an
individual or a small business entity.
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Paragraph 9(b) inserts a new subsection 14(6) that allows a court to
find a defendant guilty of an offence with a lesser penalty than the
one for which the original charge was laid. In effect, this allows a court
to find a person guilty of a reckless or negligent offence, should a
charge of knowingly offending not be made out. (This is similar to the
offence provisions in, eg, the Environmental Management and Pollution
Control Act 1994 at sections 50-53, and avoids the possibility of a
person escaping without appropriate penalty only because they are
not found guilty of a more serious but closely related charge.)
Clause 13 Section 15 amended (Wardens)
This clause addresses the fact that section 15 currently includes a
reference to a long-repealed Act, and also uses terminology that has
been superseded for some time by standard provisions that are
consistent with the State Service Act 2000 and appear in many other
Acts.
Paragraph (a) replaces the existing subsections 15(1) and (1A) with
provisions drafted in what are now the standard terms for such
appointments.
Paragraph (b) rectifies an apparent drafting oversight from when (1A)
was inserted, by including a reference to this subsection in
section 15(2).
Clause 14 Section 17 amended (Powers of authorized officers and honorary
wardens in respect of offences)
This is another case like the amendment in clause 10 above, inserting
the standard lesser penalties. The offences are normal ones in relation
to enforcement actions. However, in the process of amending the
provisions of subsection (3) it has been considered appropriate to
modernise the drafting of the whole section for the purpose of
consistent gender neutrality.
Paragraphs (a) – (d) insert “or she” / “or her” where appropriate in
subsections (1) and (2).
Paragraph (e) replaces subsection (3). The operative words remain
the same, other than the replacement of the archaic “with reasonable
expedition”, and the only substantive change lies in the addition of
the penalty provision. It provides for maximum penalties of
100 penalty units ($15,700) for a body corporate other than a small
business entity or 50 penalty units ($7,850) for an individual or a
small business entity.
Page 6 of 9
Clause 15 Section 18 amended (Additional powers of authorized officers)
This is another case like the amendment in clause 10 above, inserting
the standard lesser penalties. Section 18 creates two offences and, in
line with the form used generally in this Bill, the penalty provisions are
inserted in the subsections that do so. While expressed in somewhat
old-fashioned terms, the offences are again normal ones in relation to
enforcement actions.
Paragraph (a) inserts the penalty provision in a replacement
subsection (3), leaving unchanged the words creating the offence. It
provides for maximum penalties of 100 penalty units ($15,700) for a
body corporate other than a small business entity or 50 penalty units
($7,850) for an individual or a small business entity.
Paragraph (b) inserts the penalty provision in a replacement
subsection (6). The words creating the offence are slightly
modernised (replacing “whereof”) and amended to be gender
neutral. It provides for maximum penalties of 100 penalty units
($15,700) for a body corporate other than a small business entity or
50 penalty units ($7,850) for an individual or a small business entity.
Clause 16 Sections 20 and 21 substituted
Two sections are to be repealed and four new ones inserted. The
sections to be repealed are:
o section 20, which is the current penalty provision that applies to
every offence other than that in section 10(7). It sets the
maximum penalties at 10 penalty units ($1,570) or 6 months
imprisonment; and
o section 21, which includes the so-called “ignorance defence” in
subsection (3). Subsection (2) ceased to be relevant in 1979, and
the provision in subsection (1) is considered unnecessary in terms
of modern enforcement actions, particularly as it is confined to
the very limited area of protected sites.
New section 20, “Defence of carrying out emergency work”,
introduces a new defence. The defence requires the proof (note that
this would be to the civil standard of the balance of probabilities) that
the alleged offence arose from the act of responding to an
emergency. Paragraph (a) refers to the specific work undertaken in
relation to electricity supply; the more general (b) refers to “a
necessary and proportionate response” to an emergency. (The terms
are similar in effect to those in section 35(c) and (e) of the Historic
Cultural Heritage Act 1995.)
New section 21, “Defence of compliance with the guidelines”
introduces a new defence in relation to sections 9 and 14. The key
element of the defence in (1)(a) is that it must be proved (again, on
the balance of probabilities) that “in so far as is practicable … the
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defendant complied with the guidelines”, or reasonably relied on
another person doing so.
(1)(b) and (c) provide that it is also a defence if it is proved that the
offence was committed by another person, or that the defendant
reasonably relied on information from another person.
(2) specifies that “another person” cannot be an employee, agent or,
in the case of a body corporate, a director of the defendant.
New section 21A, “Guidelines”, provides in (1) that the Minister must
issue guidelines “specifying the actions to be undertaken … for the
purpose of establishing a defence in accordance with section 21”.
New subsections (2) – (7) and (12) are largely basic procedural
provisions. However (3)(b) provides the important power for the
guidelines to “adopt … any standards, rules, codes, guidelines or
other documents”; (4) provides that this will apply to future revisions
of adopted documents. Under (5) the Minister may consult “with any
person he or she considers appropriate” in making the guidelines; and
under (12) guidelines are to be published on the website and “made
available to the public in any other manner the Minister considers
appropriate”.
New subsections (8) – (11) outline the processes by which
Parliament may disallow the guidelines. They must be laid on the
table of each House within 5 sitting days of their making. Within a
further 5 sitting days they may be disallowed by motion, or will be
taken to be confirmed if there has been no notice of a motion to
disallow, or if such a motion has been withdrawn or negatived.
New section 21B, “Time for commencing prosecution”, addresses
the issue that currently the Relics Act is subject by default to the
application of section 26 of the Justices Act 1959, which sets a
limitation on the commencing of prosecutions of 6 months “from the
time that the matter of complaint arose”. The new section provides
instead that a prosecution must be commenced either within 2 years
of when the offence is alleged to have been committed or (ie for
cases when that date is impossible to establish) within 2 years of
when “the evidence of [the offence] first came to the attention of any
authorized officer”.
Clause 17 Section 24 substituted
The section to be repealed is section 24 (Saving of certain
provisions), which included reference to a repealed Act. Its
substantive provisions are retained in the new Section 24. Section 23
had been repealed in 1990, leaving room to insert a new section 23,
as described below.
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New section 23, “Review of Act”, provides that the Minister is to
review the Act within 3 years of commencement. It further provides
that a report on the review is to be tabled in both Houses of
Parliament within 6 months of that third anniversary.
New section 24, “Act does not affect operation of certain other
Acts”, replaces, in only slightly different terms, the current section 24.
Section 24 currently refers to three Acts, one of which was repealed
some years ago. Both the retained references relate to the treatment
of human remains. Note that one of them (the Coroners Act 1995)
provides in practice the processes followed in relation to the finding
of Aboriginal human remains.
Clause 18 Repeal of Act
This clause provides, as is standard in amendment Bills, that this Act is
repealed 365 days after it commences. The amendments made will
be incorporated into the updated amended Act on commencement.
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