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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Aboriginal Heritage Amendment Bill 2014
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Section 4 amended 2
5. Section 5 amended 3
6. Section 7A inserted 3
7A. Evaluating place or object 3
7. Sections 11A and 13 replaced 4
12A. Functions of CEO 4
12. Designation and functions of Registrar of
Aboriginal Sites 4
13. Powers of delegation 5
8. Section 15 amended 5
9. Sections 17 and 18 replaced 6
17. Offences relating to Aboriginal sites 6
18A. Application for permit to do act that might
contravene s. 17 6
18B. Committee to consider application and
make report to Minister 8
18C. Declaration that no Aboriginal site on land 9
18. Permit to do act on land 10
19A. Further provisions about permits and
declarations 11
19B. Expiry and cancellation of declarations 12
19C. Expiry, amendment and cancellation of
permits 12
19D. State Administrative Tribunal may review
certain decisions about declarations and
permits 13
10. Section 19 amended 14
11. Section 20 amended 16
12. Section 21 amended 16
13. Section 23 amended 17
14. Section 24 amended 17
81--1 page i
Aboriginal Heritage Amendment Bill 2014
Contents
15. Section 25 amended 18
16. Section 26 amended 18
17. Section 27 amended 18
18. Section 28 amended 19
19. Section 29 amended 19
20. Section 30 amended 20
21. Section 31 amended 21
22. Section 32 amended 21
23. Section 33 amended 21
24. Section 35 amended 22
25. Sections 37 to 39 replaced 22
39. Functions of the Committee 22
26. Section 39B amended 22
27. Section 39D deleted 22
28. Section 40 amended 23
29. Section 41 amended 23
30. Section 42 amended 24
31. Section 43 amended 24
32. Section 45 amended 25
33. Section 46 amended 26
34. Section 47 amended 26
35. Section 49 amended 27
36. Part VIIA inserted 27
Part VIIA -- Registers
Division 1 -- Register of Aboriginal sites and objects
50A. Register of Aboriginal sites and objects 27
50B. CEO decides what goes on or is removed
from ASO register 28
Division 2 -- Register of declarations and permits
50C. Register of declarations and permits 29
Division 3 -- General provisions relating to registers
50D. Publication of information on registers 30
50E. Further provisions relating to registers 30
50F. Protecting information in register from
disclosure 30
37. Section 50 amended 31
38. Section 51 amended 31
39. Section 52 amended 32
40. Section 54 amended 32
41. Section 55 amended 33
42. Section 56 amended 33
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Aboriginal Heritage Amendment Bill 2014
Contents
43. Section 57A inserted 34
57A. Commencing prosecutions 34
44. Section 57 amended 34
45. Section 59A inserted 36
59A. Application of Sentencing Act 1995 36
46. Section 59 amended 36
47. Section 60 amended 37
48. Section 61 amended 38
49. Section 62 amended 38
50. Section 63 inserted 38
63. Review of Act 38
51. Section 66 amended 39
52. Section 67 amended 39
53. Section 68 amended 39
54. Part IX inserted 41
Part IX -- Transitional and validation provisions
69. Provisions for Aboriginal Heritage
Amendment Act 2014 41
70. Term used: amending Act 41
71. Transitional provision for Registrar 41
72. Transitional provision for section 18 42
73. Transitional provision for section 19 42
74. Transitional provision for section 20 43
75. Transitional provision for section 21 43
76. Transitional provision for section 25 43
77. Validation (section 28(3)) 43
78. Transitional provision for section 40 44
79. Transitional provision for section 42 44
page iii
Western Australia
LEGISLATIVE ASSEMBLY
Aboriginal Heritage Amendment Bill 2014
A Bill for
An Act to amend the Aboriginal Heritage Act 1972.
The Parliament of Western Australia enacts as follows:
page 1
Aboriginal Heritage Amendment Bill 2014
s. 1
1 1. Short title
2 This is the Aboriginal Heritage Amendment Act 2014.
3 2. Commencement
4 This Act comes into operation as follows --
5 (a) sections 1 and 2 -- on the day on which this Act
6 receives the Royal Assent;
7 (b) the rest of the Act -- on a day fixed by proclamation,
8 and different days may be fixed for different provisions.
9 3. Act amended
10 This Act amends the Aboriginal Heritage Act 1972.
11 4. Section 4 amended
12 (1) In section 4 delete the definition of Registrar.
13 (2) In section 4 insert in alphabetical order:
14
15 ASO register means the register of Aboriginal sites and
16 objects kept under section 50A;
17 CEO means the chief executive officer of the
18 Department;
19 declaration means a declaration issued under
20 section 18C;
21 DP register means the register of declarations and
22 permits kept under section 50C;
23 permit means a permit given under section 18;
24 prescribed means prescribed by the regulations;
25 register means --
26 (a) the register of Aboriginal sites and objects kept
27 under section 50A; or
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Aboriginal Heritage Amendment Bill 2014
s. 5
1 (b) the register of declarations and permits kept
2 under section 50C;
3 Registrar means the Registrar of Aboriginal Sites,
4 designated under section 12(1);
5
6 5. Section 5 amended
7 In section 5(c) delete "Committee," and insert:
8
9 CEO,
10
11 6. Section 7A inserted
12 After section 6 insert:
13
14 7A. Evaluating place or object
15 (1) A person, court or tribunal evaluating the importance
16 or significance of a place or object to persons of
17 Aboriginal descent or the community for the purposes
18 of this Act must consider these matters --
19 (a) any existing use or significance attributed under
20 relevant Aboriginal custom;
21 (b) any former or reputed use or significance which
22 may be attributed upon the basis of tradition,
23 historical association or Aboriginal sentiment;
24 (c) anthropological, archaeological or
25 ethnographical interest;
26 (d) aesthetic values;
27 (e) any prescribed matter.
28 (2) Associated sacred beliefs, and ritual or ceremonial
29 usage, in so far as those matters can be ascertained,
30 must be regarded as the primary considerations to be
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Aboriginal Heritage Amendment Bill 2014
s. 7
1 taken into account in the evaluation of any place or
2 object for the purposes of this Act.
3
4 7. Sections 11A and 13 replaced
5 Delete sections 11A and 13 and insert:
6
7 12A. Functions of CEO
8 The CEO's functions include the following --
9 (a) to evaluate on behalf of the community the
10 importance and significance of places and
11 objects alleged to be associated with Aboriginal
12 persons;
13 (b) where appropriate, to record and preserve the
14 traditional Aboriginal lore related to places and
15 objects alleged to be associated with Aboriginal
16 persons;
17 (c) to recommend to the Minister places and
18 objects that, in the opinion of the CEO, are, or
19 have been, of special significance to persons of
20 Aboriginal descent and should be preserved,
21 acquired and managed by the Minister;
22 (d) to decide, in accordance with section 50B, what
23 information relating to places or objects should
24 be entered into or deleted from the ASO
25 register, and what information in that register
26 should be amended;
27 (e) to perform the other functions allocated to the
28 CEO by this Act.
29 12. Designation and functions of Registrar of
30 Aboriginal Sites
31 (1) The CEO must designate an officer of the Department
32 to be the Registrar of Aboriginal Sites.
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Aboriginal Heritage Amendment Bill 2014
s. 8
1 (2) The Registrar's functions include administering the
2 day-to-day operations of the Committee.
3 (3) The Registrar may delegate to another officer of the
4 Department the performance of any of the Registrar's
5 functions, other than this power of delegation.
6 (4) A delegation made under subsection (3) must be in
7 writing and have the prior approval of the CEO.
8 (5) All communications required by this Act to be made to
9 or by the Minister, the CEO or the Committee may be
10 made through the Registrar.
11 13. Powers of delegation
12 (1) The Minister may delegate to an officer of the
13 Department all or any of the functions that the Minister
14 has under this Act, other than this power of delegation.
15 (2) The CEO may delegate to an officer of the Department
16 all or any of the functions that the CEO has under this
17 Act, other than this power of delegation.
18 (3) A delegation made under subsection (1) or (2) must be
19 in writing.
20
21 8. Section 15 amended
22 In section 15 delete "he" and insert:
23
24 the person
25
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 9. Sections 17 and 18 replaced
2 Delete sections 17 and 18 and insert:
3
4 17. Offences relating to Aboriginal sites
5 (1) A person must not --
6 (a) excavate, destroy, damage, conceal or in any
7 way alter any Aboriginal site; or
8 (b) in any way alter, damage, remove, destroy or
9 conceal any object on or under an Aboriginal
10 site; or
11 (c) deal with in a manner not sanctioned by
12 relevant custom any object on or under an
13 Aboriginal site; or
14 (d) assume the possession, custody or control of
15 any object on or under an Aboriginal site.
16 (2) A person who contravenes subsection (1) commits an
17 offence and is to be sentenced under section 57.
18 (3) It is a defence to a charge of an offence under
19 subsection (2) for the accused person to prove on the
20 balance of probabilities --
21 (a) the accused was acting in accordance with an
22 authorisation given under section 16; or
23 (b) the accused was acting in accordance with a
24 permit; or
25 (c) the place where the alleged offence occurred
26 was the subject of a declaration.
27 18A. Application for permit to do act that might
28 contravene s. 17
29 (1) A person who, on land on which there might be an
30 Aboriginal site or an object to which this Act applies,
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 proposes to do an act that might contravene section 17
2 may apply for a permit to do the act on the land.
3 (2) An application must --
4 (a) be in writing in a form approved by the CEO;
5 and
6 (b) describe the land to which it relates; and
7 (c) describe the proposed act that might contravene
8 section 17; and
9 (d) contain any other information the form requires
10 or that is prescribed; and
11 (e) be made to the CEO; and
12 (f) be accompanied by the prescribed fee, if any.
13 (3) On an application made in accordance with
14 subsection (2), the CEO must deal with the application
15 in accordance with the regulations and do one of the
16 following --
17 (a) if the CEO is of the opinion that there is no
18 Aboriginal site on the land, the CEO may --
19 (i) issue a declaration under section 18C; or
20 (ii) decide not to issue a declaration under
21 section 18C, and in that case the CEO
22 must notify the applicant of that
23 decision;
24 (b) whether the CEO is of the opinion that there is
25 an Aboriginal site on the land or that there is no
26 Aboriginal site on the land, the CEO may give
27 the applicant a permit under section 18 if the
28 CEO is satisfied that --
29 (i) the proposed act would not destroy or
30 significantly damage or alter any
31 Aboriginal site on the land or any object
32 to which this Act applies on or under
33 any Aboriginal site on the land; and
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 (ii) there is no significant risk that the
2 proposed act would adversely affect the
3 importance and significance of any
4 Aboriginal site on the land;
5 (c) if the CEO is of the opinion that there is an
6 Aboriginal site on the land, the CEO may refer
7 the application to the Committee, and, if he or
8 she does so, the CEO must provide the
9 Committee with --
10 (i) a copy of all information that relates to
11 the land and that was made available to
12 the CEO for the purpose of deciding
13 what to do under this subsection; and
14 (ii) any other prescribed information;
15 (d) refuse the application for a permit.
16 (4) The CEO may refer the application to the Committee
17 even though the CEO considers that subsection (3)(b)
18 applies, but only if the CEO is of the opinion that there
19 is an Aboriginal site on the land.
20 (5) The CEO may exercise different powers under
21 subsection (3) in respect of different parts of the land.
22 18B. Committee to consider application and make report
23 to Minister
24 (1) If under section 18A(3)(c) an application is referred to
25 the Committee, it must give the Minister a written
26 report that includes its recommendations on the
27 following --
28 (a) whether the Minister should give the applicant
29 a permit under section 18 for all or a part of the
30 land;
31 (b) if it recommends a permit be given, the terms
32 and any conditions the Minister should include
33 in the permit;
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 (c) whether the Minister should refuse the
2 application for all or a part of the land.
3 (2) If the Committee does not give the Minister a report in
4 accordance with subsection (1), the Minister may direct
5 the Committee --
6 (a) to do so within a specified time; or
7 (b) to take any other action the Minister considers
8 necessary in order to expedite the matter.
9 (3) The Committee must obey a direction given to it under
10 subsection (2).
11 (4) On receiving a report under subsection (1), the
12 Minister, after considering it and the general interest of
13 the community, may do one or more of the
14 following --
15 (a) give the applicant a permit under section 18 for
16 all or a part of the land;
17 (b) refuse the application for all or a part of the
18 land;
19 (c) ask the Committee to give him or her a further
20 report on the application or any aspect of it.
21 18C. Declaration that no Aboriginal site on land
22 (1) The CEO may issue a declaration under this section in
23 respect of any land if the CEO is of the opinion that
24 there is no Aboriginal site on the land.
25 (2) The CEO may issue a declaration --
26 (a) in the circumstances set out in
27 section 18A(3)(a); or
28 (b) on the CEO's own initiative.
29 (3) A declaration must --
30 (a) specify the land to which it applies, which in
31 the case of an application made under
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 section 18A must be either all of the land
2 described in the application or a part of that
3 land; and
4 (b) state there does not appear to be an Aboriginal
5 site on the land specified.
6 (4) If the CEO issues a declaration, the CEO must --
7 (a) if the declaration resulted from an application
8 made under section 18A, give notice of it to the
9 applicant; and
10 (b) publish it in the Gazette.
11 18. Permit to do act on land
12 (1) A permit to do an act that might contravene section 17
13 on land on which there might be an Aboriginal site or
14 an object to which this Act applies may be given, on an
15 application made under section 18A --
16 (a) by the CEO in accordance with
17 section 18A(3)(b); or
18 (b) by the Minister in accordance with
19 section 18B(4)(a).
20 (2) A permit given under this section --
21 (a) if given by the CEO, may have effect for an
22 indefinite period or for a period specified in the
23 permit;
24 (b) if given by the Minister, has effect for an
25 indefinite period.
26 (3) A permit given under this section --
27 (a) must specify the land to which it applies, being
28 either all of the land described in the
29 application or a part of that land; and
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 (b) must specify the act or acts it permits on the
2 land specified, being any or a combination of
3 these --
4 (i) the act proposed in the application;
5 (ii) another act (instead of the act proposed)
6 that might contravene section 17;
7 (iii) an act (in addition to the act proposed)
8 that might contravene section 17;
9 and
10 (c) in the case of a permit given by the CEO, must
11 specify either --
12 (i) that the permit is to have effect for an
13 indefinite period; or
14 (ii) the period for which the permit is to
15 have effect;
16 and
17 (d) may include conditions that apply to, and in
18 relation to, doing the act permitted.
19 19A. Further provisions about permits and declarations
20 (1) A declaration or permit does not confer any right to
21 enter the land to which it relates.
22 (2) A declaration and a permit cannot both relate to the
23 same area of land.
24 (3) A permit cannot be transferred to another person
25 except by the CEO.
26 (4) The CEO, on the application of a person, may transfer
27 a permit from one person to another.
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 19B. Expiry and cancellation of declarations
2 (1) A declaration expires if any or all of the land to which
3 it applies is registered in the ASO register as an
4 Aboriginal site.
5 (2) The Minister or the CEO may, at any time, cancel a
6 declaration.
7 (3) If a declaration expires under subsection (1) or is
8 cancelled under subsection (2), the CEO must --
9 (a) if an application under section 18A gave rise to
10 the declaration, notify the applicant of the
11 expiry or cancellation of the declaration; and
12 (b) publish notice of the expiry or cancellation in
13 the Gazette.
14 19C. Expiry, amendment and cancellation of permits
15 (1) A permit given by the CEO for a period specified in the
16 permit expires at the end of that period, unless
17 subsection (4) applies.
18 (2) Subsection (1) does not prevent a person from making
19 an application for a new permit --
20 (a) before or after a permit expires; and
21 (b) with the same terms as an expiring or expired
22 permit or different terms.
23 (3) Subsection (4) applies if --
24 (a) before a permit expires, the holder of the permit
25 (the expiring permit) applies for a new permit
26 (the new permit) with the same terms as the
27 expiring permit; and
28 (b) the application for the new permit is not
29 determined before the expiring permit would
30 otherwise expire and is not withdrawn before
31 then.
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Aboriginal Heritage Amendment Bill 2014
s. 9
1 (4) If this subsection applies, the expiring permit continues
2 to have effect until one of the following occurs --
3 (a) the application for the new permit is
4 withdrawn;
5 (b) the application for the new permit is
6 determined.
7 (5) On his or her own initiative, or on the application of a
8 person who holds it --
9 (a) the CEO may amend a permit given by the
10 CEO; and
11 (b) the Minister may amend or cancel a permit
12 given by the Minister or the CEO.
13 19D. State Administrative Tribunal may review certain
14 decisions about declarations and permits
15 (1) A person specified in subsection (2) may apply to the
16 State Administrative Tribunal for a review of any of
17 the following decisions --
18 (a) a decision to cancel a declaration;
19 (b) a decision to refuse an application for a permit;
20 (c) a decision to give a permit subject to
21 conditions;
22 (d) a decision to cancel or amend a permit, other
23 than on an application made by a person who
24 holds it;
25 (e) a decision to refuse an application for the
26 amendment or transfer of a permit.
27 (2) These are the persons who may apply under
28 subsection (1) for a review of a decision --
29 (a) in the case of the cancellation of a declaration,
30 the person who made the application under
31 section 18A that gave rise to the declaration;
page 13
Aboriginal Heritage Amendment Bill 2014
s. 10
1 (b) the person who made the relevant application;
2 (c) the person who holds the permit.
3
4 10. Section 19 amended
5 (1) Delete section 19(1) and insert:
6
7 (1) Where the CEO recommends to the Minister that an
8 Aboriginal site is of outstanding importance and that it
9 appears to the CEO that the Aboriginal site should be
10 declared a protected area, the Minister must give notice
11 of the recommendation in accordance with
12 subsection (2A).
13 (2A) The notice must --
14 (a) identify the Aboriginal site; and
15 (b) contain a summary of the recommendation; and
16 (c) invite people to make written representations to
17 the Minister about the recommendation; and
18 (d) state by when those representations must be
19 made; and
20 (e) be published in --
21 (i) the Gazette; and
22 (ii) a newspaper circulating in the area
23 where the site is situated; and
24 (iii) a newspaper catering mainly or
25 exclusively for the interests of persons
26 of Aboriginal descent;
27 and
28 (f) be given to --
29 (i) each person who, in respect of the land
30 on which the site is situated, holds an
31 interest that is registered under the
page 14
Aboriginal Heritage Amendment Bill 2014
s. 10
1 Transfer of Land Act 1893 or the
2 Registration of Deeds Act 1856; and
3 (ii) each registered native title claimant (as
4 defined in the Native Title Act 1993
5 (Commonwealth) section 253) in
6 relation to the land on which the site is
7 situated; and
8 (iii) if under the Native Title Act 1993
9 (Commonwealth) native title rights and
10 interests (as defined in section 223 of
11 that Act) exist in relation to the land on
12 which the site is situated, the registered
13 native title body corporate (as defined in
14 section 253 of that Act) in respect of
15 those native title rights and interests;
16 and
17 (iv) any other person whom the Minister
18 considers has an interest in the land on
19 which the site is situated that might be
20 specially affected if the recommended
21 declaration were made.
22
23 (2) In section 19(2):
24 (a) after "he" (each occurrence) insert:
25
26 or she
27
28 (b) after "his" insert:
29
30 or her
31
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Aboriginal Heritage Amendment Bill 2014
s. 11
1 (c) delete "Committee to consider the representations and
2 report to him on them." and insert:
3
4 CEO to consider the representations and report to him or
5 her on them.
6
7 (3) In section 19(3):
8 (a) delete "Committee," and insert:
9
10 CEO,
11
12 (b) delete "Committee" and insert:
13
14 CEO
15
16 11. Section 20 amended
17 (1) In section 20(1) delete "Committee" and insert:
18
19 Minister, after receiving advice from the CEO,
20
21 (2) In section 20(3) delete "Committee" and insert:
22
23 Minister (after the Minister has received advice from the CEO)
24
25 12. Section 21 amended
26 In section 21:
27 (a) after "he" (each occurrence) insert:
28
29 or she
30
page 16
Aboriginal Heritage Amendment Bill 2014
s. 13
1 (b) after "his" insert:
2
3 or her
4
5 (c) delete "Committee" (each occurrence) and insert:
6
7 CEO
8
9 (d) after "him" insert:
10
11 or her
12
13 (e) delete "Committee," and insert:
14
15 CEO,
16
17 13. Section 23 amended
18 At the end of section 23(2) insert:
19
20 Penalty: a fine of $4 000.
21
22 14. Section 24 amended
23 (1) In section 24(a) after "he" insert:
24
25 or she
26
27 (2) At the end of section 24 insert:
28
29 Penalty: a fine of $3 000.
30
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Aboriginal Heritage Amendment Bill 2014
s. 15
1 15. Section 25 amended
2 Delete section 25(1) and insert:
3
4 (1) An Order in Council declaring an area to be a protected
5 area may subsequently be varied or revoked if the
6 Governor, on the recommendation of the Minister
7 under section 21 or otherwise (in every case after the
8 Minister has received advice from the CEO), is
9 satisfied that it is in the general interest of the
10 community to do so, but not otherwise.
11
12 16. Section 26 amended
13 (1) In section 26(1) delete "may in his opinion be" and insert:
14
15 are
16
17 (2) Delete section 26(2) and insert:
18
19 (2) Regulations made under subsection (1) may create
20 offences with a maximum penalty not exceeding --
21 (a) for an individual, a fine of $7 000;
22 (b) for a body corporate, a fine of $35 000.
23
24 17. Section 27 amended
25 (1) In section 27(1) delete "his interest enables him" and insert:
26
27 that interest enables him or her
28
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Aboriginal Heritage Amendment Bill 2014
s. 18
1 (2) In section 27(5):
2 (a) delete "himself, his" and insert:
3
4 the covenantor, the covenantor's
5
6 (b) delete "him" and insert:
7
8 the covenantor
9
10 18. Section 28 amended
11 (1) In section 28(2)(a) after "he" insert:
12
13 or she
14
15 (2) Delete section 28(3).
16 (3) In section 28(4) delete "Subject to subsection (3), the" and
17 insert:
18
19 The
20
21 19. Section 29 amended
22 Delete section 29(c) and insert:
23
24 (c) a person who is a public service officer of the
25 agency principally assisting the Minister
26 administering the Land Administration
27 Act 1997 in that Act's administration and who
28 is for the time being nominated for the purposes
29 of this section by that Minister,
30
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Aboriginal Heritage Amendment Bill 2014
s. 20
1 20. Section 30 amended
2 (1) Delete section 30(1) and (2) and insert:
3
4 (1) Despite anything in the instrument under which he or
5 she is appointed, an appointed member of the
6 Committee may resign his or her office by a written
7 notice signed by him or her and given to, and accepted
8 by, the Minister.
9 (2A) A member of the Committee who ceases to hold office,
10 unless otherwise disqualified, is eligible for
11 reappointment.
12 (2) The office of an appointed member of the Committee
13 becomes vacant, and the person is not eligible for
14 reappointment, if the person --
15 (a) absents himself or herself from 3 consecutive
16 ordinary meetings of the Committee without
17 having obtained leave of absence from the
18 Minister; or
19 (b) has his or her appointment terminated by the
20 Minister on the grounds of inability,
21 inefficiency or misbehaviour; or
22 (c) is a person in respect of whom an
23 administration order is in force under the
24 Guardianship and Administration Act 1990
25 Part 6.
26
27 (2) After section 30(3) insert:
28
29 (4) Subsection (5) applies if --
30 (a) the Committee is required to consider any
31 matter that will or may affect native title rights
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Aboriginal Heritage Amendment Bill 2014
s. 21
1 and interests (as defined in the Native Title
2 Act 1993 (Commonwealth) section 223); and
3 (b) a registered native title body corporate (as
4 defined in section 253 of that Act) is the native
5 title holder (as defined in section 224 of that
6 Act) in respect of those native title rights and
7 interests.
8 (5) If this subsection applies, the Committee may seek the
9 advice of the registered native title body corporate
10 under subsection (3) without getting the approval of the
11 Minister.
12
13 21. Section 31 amended
14 In section 31(1) delete "his" and insert:
15
16 the member's
17
18 22. Section 32 amended
19 In section 32(2) delete "him" and insert:
20
21 the Chairman
22
23 23. Section 33 amended
24 In section 33(1) delete "firstmentioned meeting," and insert:
25
26 meeting to which the minutes relate,
27
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Aboriginal Heritage Amendment Bill 2014
s. 24
1 24. Section 35 amended
2 In section 35 delete "him" (each occurrence) and insert:
3
4 that member
5
6 25. Sections 37 to 39 replaced
7 Delete sections 37 to 39 and insert:
8
9 39. Functions of the Committee
10 The functions of the Committee are --
11 (a) to advise the Minister on any question referred
12 to the Committee, and generally on any matter
13 related to the objects and purposes of this Act;
14 and
15 (b) to perform the functions allocated to the
16 Committee by this Act.
17
18 26. Section 39B amended
19 In section 39B after "his" insert:
20
21 or her
22
23 27. Section 39D deleted
24 Delete section 39D.
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Aboriginal Heritage Amendment Bill 2014
s. 28
1 28. Section 40 amended
2 In section 40 delete "Committee" and insert:
3
4 Minister (after receiving advice from the CEO)
5
6 29. Section 41 amended
7 (1) In section 41(1):
8 (a) after "his" (each occurrence) insert:
9
10 or her
11
12 (b) after "he" insert:
13
14 or she
15
16 (2) In section 41(1) delete the Penalty and insert:
17
18 Penalty: a fine of $5 000.
19
20 (3) In section 41(2) after "his" (each occurrence) insert:
21
22 or her
23
24 (4) At the end of section 41(2) insert:
25
26 Penalty: a fine of $5 000.
27
page 23
Aboriginal Heritage Amendment Bill 2014
s. 30
1 30. Section 42 amended
2 In section 42(1)(b):
3 (a) delete "Committee" and insert:
4
5 CEO,
6
7 (b) delete "it" and insert:
8
9 the CEO
10
11 31. Section 43 amended
12 (1) In section 43(1):
13 (a) in paragraph (d) after "he" insert:
14
15 or she
16
17 (b) delete paragraph (e) and insert:
18
19 (e) he or she has first, in writing, offered that
20 object for sale to the Minister, and has been
21 advised, in writing, by the Minister that the
22 Minister does not wish to purchase it; or
23
24 (c) in paragraph (f) delete "he" and insert:
25
26 the Minister
27
28 (d) in paragraph (g) after "he" insert:
29
30 or she
31
page 24
Aboriginal Heritage Amendment Bill 2014
s. 32
1 (2) After section 43(1) insert:
2
3 (2A) A person who contravenes subsection (1) commits an
4 offence and is to be sentenced under section 57.
5
6 (3) In section 43(2):
7 (a) delete "he shall" and insert:
8
9 the Minister must
10
11 (b) delete "he" (2nd occurrence) and insert:
12
13 the Minister
14
15 (4) In section 43(3) delete "him" and insert:
16
17 the Minister
18
19 (5) In section 43(5) delete "he" and insert:
20
21 the person
22
23 (6) Delete section 43(7).
24 32. Section 45 amended
25 In section 45(1) delete "he" and insert:
26
27 the Minister
28
page 25
Aboriginal Heritage Amendment Bill 2014
s. 33
1 33. Section 46 amended
2 (1) In section 46(5) delete "the terms of " and insert:
3
4 subsection (2) having received
5
6 (2) At the end of section 46(5) insert:
7
8 Penalty: a fine of $5 000.
9
10 (3) In section 46(7):
11 (a) in paragraph (a) after "he" insert:
12
13 or she
14
15 (b) in paragraph (a) after "his" insert:
16
17 or her
18
19 (c) in paragraph (b) delete "him." and insert:
20
21 him or her.
22
23 34. Section 47 amended
24 In section 47(1) delete "his" and insert:
25
26 the Minister's
27
page 26
Aboriginal Heritage Amendment Bill 2014
s. 35
1 35. Section 49 amended
2 At the end of section 49(2) insert:
3
4 Penalty: a fine of $5 000.
5
6 36. Part VIIA inserted
7 After section 49 insert:
8
9 Part VIIA -- Registers
10 Division 1 -- Register of Aboriginal sites and objects
11 50A. Register of Aboriginal sites and objects
12 (1) The Registrar must, so far as practicable, keep a
13 register of the following --
14 (a) all protected areas;
15 (b) all other Aboriginal sites;
16 (c) all Aboriginal cultural material;
17 (d) all objects to which this Act applies.
18 (2) The register kept under this section is called the
19 register of Aboriginal sites and objects (the ASO
20 register).
21 (3) The register kept under this section is a continuation of
22 the register provided for by section 38 before it was
23 deleted by the Aboriginal Heritage Amendment
24 Act 2014 section 25.
page 27
Aboriginal Heritage Amendment Bill 2014
s. 36
1 50B. CEO decides what goes on or is removed from ASO
2 register
3 (1) The CEO decides whether or not --
4 (a) information relating to a place or object (other
5 than a protected area or Aboriginal cultural
6 material) should be entered in or deleted from
7 the ASO register; and
8 (b) information in the ASO register relating to a
9 place or object (other than a protected area or
10 Aboriginal cultural material) should be
11 amended.
12 (2) For the purpose of making those decisions, the CEO
13 determines all matters relating to or connected with the
14 following --
15 (a) whether or not a place is an Aboriginal site;
16 (b) whether or not an object is an object to which
17 this Act applies.
18 (3) In order to make those decisions, the CEO may make
19 any inquiries, obtain whatever information and consult
20 whoever the CEO considers necessary.
21 (4) The CEO is not prevented from deciding that
22 information should be entered in or deleted from the
23 ASO register, or that information in the ASO register
24 should be amended, just because that information was
25 or was not recorded in the ASO register on the basis of
26 any previous advice given by any person or body
27 (including the Committee).
page 28
Aboriginal Heritage Amendment Bill 2014
s. 36
1 Division 2 -- Register of declarations and permits
2 50C. Register of declarations and permits
3 (1) The Registrar must, so far as practicable, keep a
4 register of the following --
5 (a) all current declarations;
6 (b) the expiry of a declaration under
7 section 19B(1);
8 (c) the cancellation of a declaration under
9 section 19B(2);
10 (d) all current permits, including the term of a
11 permit and any conditions to which a permit is
12 subject;
13 (e) all decisions to refuse an application for a
14 permit;
15 (f) all decisions to amend a permit;
16 (g) all decisions to cancel a permit;
17 (h) all decisions to transfer a permit;
18 (i) all current consents given under the old
19 section 18 (as defined in section 72(1)),
20 including any conditions attached to the
21 consent.
22 (2) The register kept under this section is called the
23 register of declarations and permits (the DP register).
24 (3) If a decision that is required to be recorded in the DP
25 register is the subject of an application to the State
26 Administrative Tribunal under section 19D, the register
27 must record both the original decision and the outcome
28 of the application.
page 29
Aboriginal Heritage Amendment Bill 2014
s. 36
1 Division 3 -- General provisions relating to registers
2 50D. Publication of information on registers
3 (1) The Registrar must make the information in the
4 registers publicly available free of charge.
5 (2) The Registrar may comply with subsection (1) in any
6 way the Registrar considers appropriate.
7 (3) Subsection (1) is subject to any regulations authorised
8 by section 50F.
9 50E. Further provisions relating to registers
10 (1) The registers must be in the form and include whatever
11 information is prescribed.
12 (2) The CEO may direct the Registrar to enter or amend
13 information in, or delete information from, a register,
14 and the Registrar must comply with the direction as
15 soon as practicable.
16 (3) Entering and amending information in, and deleting
17 information from, a register must be done in
18 accordance with prescribed procedures (if any).
19 (4) The Registrar must keep information that has been
20 deleted from a register so there is an historical record
21 of the information that was on the register.
22 50F. Protecting information in register from disclosure
23 The regulations may prohibit or restrict disclosure of
24 some or all information in a register.
25
page 30
Aboriginal Heritage Amendment Bill 2014
s. 37
1 37. Section 50 amended
2 (1) In section 50(2):
3 (a) after "his" (each occurrence) insert:
4
5 or her
6
7 (b) after "he" insert:
8
9 or she
10
11 (2) In section 50(3) after "his" insert:
12
13 or her
14
15 38. Section 51 amended
16 (1) In section 51(1):
17 (a) delete "Department, or any honorary warden," and
18 insert:
19
20 Department
21
22 (b) after "he" (each occurrence) insert:
23
24 or she
25
26 (c) delete "him," and insert:
27
28 him or her,
29
page 31
Aboriginal Heritage Amendment Bill 2014
s. 39
1 (2) In section 51(2):
2 (a) after "his" insert:
3
4 or her
5
6 (b) delete "Department, or an honorary warden, shall" and
7 insert:
8
9 Department must
10
11 (3) Delete section 51(3).
12 39. Section 52 amended
13 In section 52:
14 (a) delete "custodian, an honorary warden," and insert:
15
16 custodian
17
18 (b) after "he" insert:
19
20 or she
21
22 40. Section 54 amended
23 (1) Delete section 54(1) and insert:
24
25 (1) A person who wilfully obstructs any person acting in
26 the execution of this Act commits an offence.
27 Penalty:
28 (a) for an individual, a fine of $10 000;
29 (b) for a body corporate, a fine of $50 000.
30
page 32
Aboriginal Heritage Amendment Bill 2014
s. 41
1 (2) In section 54(2) after "him" insert:
2
3 or her
4
5 41. Section 55 amended
6 (1) In section 55:
7 (a) after "having" insert:
8
9 a permit,
10
11 (b) after "giving of the" insert:
12
13 permit,
14
15 (2) At the end of section 55 insert:
16
17 Penalty:
18 (a) for an individual, a fine of $50 000;
19 (b) for a body corporate, a fine of $250 000.
20
21 42. Section 56 amended
22 (1) In section 56 delete "him" (each occurrence) and insert:
23
24 the person
25
26 (2) In section 56 delete the Penalty and insert:
27
28 Penalty: a fine of $3 000.
29
page 33
Aboriginal Heritage Amendment Bill 2014
s. 43
1 43. Section 57A inserted
2 After section 56 insert:
3
4 57A. Commencing prosecutions
5 (1) The Minister or the CEO may commence a prosecution
6 of a person for an offence under this Act.
7 (2) Subject to the Director of Public Prosecutions
8 Act 1991, a person other than the Minister, a delegate
9 of the Minister, the CEO or a delegate of the CEO
10 cannot commence a prosecution of a person for an
11 offence under this Act.
12 (3) A prosecution of a person for an offence under this Act
13 cannot be commenced after 5 years after the day on
14 which it was allegedly committed.
15
16 44. Section 57 amended
17 (1) Delete section 57(1) and insert:
18
19 (1) A person who commits an offence under section 17
20 or 43 is liable --
21 (a) in the case of an individual --
22 (i) for a first offence, to a fine of $100 000
23 or imprisonment for 12 months;
24 (ii) for a second or subsequent offence, to a
25 fine of $200 000 or imprisonment for
26 2 years;
27 (b) in the case of a body corporate --
28 (i) for a first offence, to a fine of $500 000;
29 (ii) for a second or subsequent offence, to a
30 fine of $1 000 000.
31
page 34
Aboriginal Heritage Amendment Bill 2014
s. 44
1 (2) In section 57(2) after "he" insert:
2
3 or she
4
5 (3) After section 57(4) insert:
6
7 (5) A court that convicts a person of an offence under this
8 Act that involves destroying, damaging or altering an
9 Aboriginal site or an object to which this Act applies
10 may order the person --
11 (a) to take remedial action to restore the place or
12 object to the same state as it was in before the
13 offence or to a state specified in the order; or
14 (b) to pay another person to take remedial action to
15 restore the place or object to the same state as it
16 was in before the offence or to a state specified
17 in the order.
18 (6) An order made under subsection (5) --
19 (a) must specify --
20 (i) the remedial action to be taken; and
21 (ii) the time for complying with the order;
22 and
23 (b) if it is made under subsection (5)(b), must also
24 specify --
25 (i) the person who is to be paid; and
26 (ii) the amount to be paid;
27 and
28 (c) may include conditions subject to which the
29 remedial action must be taken.
page 35
Aboriginal Heritage Amendment Bill 2014
s. 45
1 (7) If a person does not obey an order made under
2 subsection (5)(a), the CEO --
3 (a) may take the remedial action specified in the
4 order; and
5 (b) may recover the costs of doing so from the
6 person as a debt due to the State in a court of
7 competent jurisdiction.
8
9 45. Section 59A inserted
10 Before section 59 insert:
11
12 59A. Application of Sentencing Act 1995
13 (1) The Sentencing Act 1995 Part 16 Division 1 applies to
14 an order referred to in section 57(5) as if it were a
15 reparation order as defined in that Part.
16 (2) The Sentencing Act 1995 section 122 applies to a
17 person who does not obey an order made under
18 section 57(5)(a) as if the order were a restitution order
19 made under Part 16 of that Act.
20 (3) The Sentencing Act 1995 sections 119 and 119A apply
21 as if an order made under section 57(5)(b) were a
22 compensation order made under Part 16 of that Act.
23
24 46. Section 59 amended
25 In section 59 delete "Minister, in consultation with the
26 Committee," and insert:
27
28 Minister
29
page 36
Aboriginal Heritage Amendment Bill 2014
s. 47
1 47. Section 60 amended
2 (1) In section 60(1) after "he" (each occurrence) insert:
3
4 or she
5
6 (2) Delete section 60(2) and insert:
7
8 (2A) Subsection (2) applies in any proceedings under this
9 Act that relate to --
10 (a) a place registered in the ASO register as an
11 Aboriginal site; or
12 (b) an object registered in the ASO register as
13 Aboriginal cultural material or as an object to
14 which this Act applies.
15 (2) In any proceedings to which this subsection applies, a
16 person seeking to prove the place or object is not one to
17 which this Act applies has the onus of proving the
18 matter.
19
20 (3) Delete section 60(3) and insert:
21
22 (3) If a charge of an offence under this Act alleges an act
23 occurred within a place registered in the ASO register
24 as an Aboriginal site, then, if the act is proved, it is to
25 be presumed, in the absence of evidence to the
26 contrary, that it occurred within the place.
27
28 (4) Delete section 60(4) and insert:
29
30 (4) In any proceedings under this Act, a document
31 purporting to be a declaration issued, or consent or
page 37
Aboriginal Heritage Amendment Bill 2014
s. 48
1 permit given, under this Act signed by the CEO or, as
2 the case requires, the Minister is evidence of its
3 contents without --
4 (a) proof of the signature of the person purporting
5 to have signed the document; or
6 (b) proof that the purported signatory was the CEO
7 or the Minister, as the case may be.
8
9 48. Section 61 amended
10 Delete section 61(c) and insert:
11
12 (c) no authorisation, consent or permit had been
13 given or issued by the Minister;
14 (d) no declaration or permit had been issued or
15 given by the CEO,
16
17 49. Section 62 amended
18 In section 62 after "he" insert:
19
20 or she
21
22 50. Section 63 inserted
23 At the beginning of Part VIII insert:
24
25 63. Review of Act
26 (1) The Minister must carry out a review of the operation
27 of this Act as soon as practicable after every
28 5th anniversary of the day on which the Aboriginal
29 Heritage Amendment Act 2014 section 4 comes into
30 operation.
page 38
Aboriginal Heritage Amendment Bill 2014
s. 51
1 (2) The Minister must --
2 (a) prepare a report based on the review; and
3 (b) as soon as practicable after the report is
4 prepared and in any event not more than
5 18 months after the relevant anniversary, cause
6 it to be laid before each House of Parliament.
7
8 51. Section 66 amended
9 (1) Delete section 66(1) and insert:
10
11 (1) The functions under section 24 of the owner of Crown
12 land, or of the owner of freehold land held in the name
13 of the State, may be performed by --
14 (a) the Minister as defined in the Land
15 Administration Act 1997 section 3(1) (the
16 Minister for Lands); or
17 (b) a person authorised in writing by the Minister
18 for Lands to do so.
19
20 (2) Delete section 66(3).
21 52. Section 67 amended
22 In section 67(1)(a) and (b) after "the Committee," insert:
23
24 the CEO,
25
26 53. Section 68 amended
27 (1) In section 68 delete "The Governor" and insert:
28
29 (1) The Governor
30
page 39
Aboriginal Heritage Amendment Bill 2014
s. 53
1 (2) At the end of section 68 insert:
2
3 (2) Without limiting subsection (1), regulations may do
4 any or all of the following --
5 (a) prescribe forms to be used for the purposes of
6 this Act;
7 (b) prescribe the practice and procedure for --
8 (i) dealing with applications made under
9 section 18A, 19A(4) or 19C(5);
10 (ii) making decisions under section 18A,
11 18B, 18C, 18, 19A(4), 19B(2) or
12 19C(5);
13 (c) prescribe the powers that may be exercised by
14 honorary wardens, including (without
15 limitation) --
16 (i) the power to require a person to provide
17 their personal details (for example, full
18 name and residential address) in the
19 circumstances set out in the regulations;
20 (ii) the power to remove people, vehicles,
21 animals and other things from protected
22 areas, other Aboriginal sites and land
23 held subject to a covenant in favour of
24 the Minister under section 27, in the
25 circumstances set out in the regulations;
26 (iii) the power to give directions to people in
27 the circumstances set out in the
28 regulations;
29 (iv) any other power that is reasonably
30 necessary to enforce the provisions of
31 this Act or the regulations;
32 (d) prescribe the fees and charges to be paid for
33 services provided under this Act by the
34 Department;
page 40
Aboriginal Heritage Amendment Bill 2014
s. 54
1 (e) create offences with, unless section 26(2)
2 applies, a maximum penalty not exceeding --
3 (i) for an individual, a fine of $5 000;
4 (ii) for a body corporate, a fine of $25 000.
5 (3) Despite the Interpretation Act 1984 sections 3(3) and
6 45(3), section 45(1) and (2) of that Act apply in respect
7 of fees and charges prescribed under this section.
8
9 54. Part IX inserted
10 After section 68 insert:
11
12 Part IX -- Transitional and validation
13 provisions
14 69. Provisions for Aboriginal Heritage Amendment
15 Act 2014
16 This Part contains transitional and validation
17 provisions for the Aboriginal Heritage Amendment
18 Act 2014.
19 70. Term used: amending Act
20 In this Part --
21 amending Act means the Aboriginal Heritage
22 Amendment Act 2014.
23 71. Transitional provision for Registrar
24 On the commencement of the amending Act section 25,
25 the person who, immediately before that
26 commencement, was appointed as the Registrar is to be
27 taken to have been designated as the Registrar under
28 section 12.
page 41
Aboriginal Heritage Amendment Bill 2014
s. 54
1 72. Transitional provision for section 18
2 (1) In this section --
3 old section 18 means section 18 as in force
4 immediately before the amending Act section 9 comes
5 into operation.
6 (2) If immediately before the amending Act section 9
7 comes into operation the Minister has not made a
8 decision about a notice given under the old section 18,
9 the old section 18 continues in force in relation to the
10 notice.
11 (3) A consent given under the old section 18 has effect as
12 if --
13 (a) the consent were a permit --
14 (i) given by the Minister under section 18
15 (as inserted by the amending Act
16 section 9); and
17 (ii) that is subject to any conditions to
18 which the consent was subject;
19 and
20 (b) the use specified in the consent were an act
21 specified in a permit.
22 73. Transitional provision for section 19
23 If immediately before the amending Act section 10
24 comes into operation the Committee has made a
25 recommendation to the Minister under section 19, that
26 section continues to apply to and in relation to that
27 recommendation as if the references in subsections (2)
28 and (3) of that section to the CEO were references to
29 the Committee.
page 42
Aboriginal Heritage Amendment Bill 2014
s. 54
1 74. Transitional provision for section 20
2 If immediately before the amending Act section 11
3 comes into operation the Committee has made a
4 recommendation to the Governor under section 20(1)
5 or (3), that recommendation is to be taken to be a
6 recommendation made by the Minister on the advice of
7 the CEO.
8 75. Transitional provision for section 21
9 If immediately before the amending Act section 12
10 comes into operation the Minister has received
11 representations under section 21 and has directed the
12 Committee to make a report under that section, that
13 section continues to apply to and in relation to the
14 consideration of those representations as if the
15 references in that section to the CEO were references to
16 the Committee.
17 76. Transitional provision for section 25
18 If immediately before the amending Act section 15
19 comes into operation the Governor has under
20 section 25 consulted with the Committee in relation to
21 the variation or revocation of an Order in Council, that
22 section continues to apply to and in relation to the
23 variation or revocation of that Order in Council on the
24 basis of that consultation as if that section had not been
25 amended by the amending Act.
26 77. Validation (section 28(3))
27 (1) In this section, a reference to the doing of anything
28 includes a reference to an omission to do anything.
29 (2) Nothing done by the Committee before, on or after the
30 amending Act section 18(2) comes into operation, and
31 nothing done before, on or after the amending Act
32 section 18(2) comes into operation in reliance on or as
page 43
Aboriginal Heritage Amendment Bill 2014
s. 54
1 a result of anything done by the Committee, is invalid
2 or ineffective, or was ever invalid or ineffective, just
3 because the membership of the Committee did not at
4 any material time include a person appointed by the
5 Minister in accordance with section 28(3) (as deleted
6 by the amending Act section 18(2)).
7 78. Transitional provision for section 40
8 If immediately before the amending Act section 28
9 comes into operation the Committee has made a
10 recommendation to the Governor under section 40, that
11 recommendation is to be taken to be a recommendation
12 made by the Minister on the advice of the CEO.
13 79. Transitional provision for section 42
14 If immediately before the amending Act section 30
15 comes into operation the Committee has provided its
16 opinion to the Minister for the purposes of
17 section 42(1)(b), that opinion is to be taken to be the
18 opinion of the CEO.
19
20
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