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Part 1—Introduction

Part 1 Introduction

Division 1 Preliminary

1   Short title

                   This Act is the Underwater Cultural Heritage Act 2018 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Objects of this Act

                   The objects of this Act are:

                     (a)  to provide for the identification, protection and conservation of Australia’s underwater cultural heritage; and

                     (b)  to enable the cooperative implementation of national and international maritime heritage responsibilities; and

                     (c)  to promote public awareness, understanding, appreciation and appropriate use of Australia’s underwater cultural heritage.

4   Simplified outline of this Act

This Act provides for the protection of Australia’s underwater cultural heritage.

Different kinds of articles of underwater cultural heritage are, or can be, protected, depending on the kinds of articles, their heritage significance and their location.

For example, remains of vessels that have been in Australian waters for at least 75 years are automatically protected, as are certain articles associated with vessels and remains of vessels. Australian waters extend from the seaward limits of a State to the outer limit of Australia’s continental shelf.

The remains of aircraft and certain associated articles that have been in Commonwealth waters for at least 75 years are also automatically protected. Commonwealth waters extend:

       (a)     from waters 3 nautical miles seaward of the baseline of the territorial sea that are adjacent to the States and the Northern Territory; and

      (b)     to the outer limit of Australia’s continental shelf.

Other kinds of articles of underwater cultural heritage can be protected if the Minister is satisfied that they are of heritage significance. Such articles may be in Commonwealth waters, Australian waters or in waters beyond Australian waters, depending on the kind of article concerned.

Some articles are, or can be, protected even if they have already been removed from those waters. In all cases, if an article is removed from waters after it becomes protected, the protection continues to apply to it.

If an article of underwater cultural heritage is protected, certain conduct in relation to the article is generally prohibited without a permit. Such conduct includes the following:

       (a)     anything that has or is likely to have an adverse impact on the article;

      (b)     possessing the article;

       (c)     supplying, or offering to supply, the article;

      (d)     importing or exporting the article.

The Minister can declare an area containing protected underwater cultural heritage to be a protected zone, if the area is in Australian waters and the declaration would be consistent with the objects of this Act. The declaration may regulate or prohibit the kinds of activities that can be undertaken in the protected zone.

The Minister has various powers to gather information on the location of articles that are, or may be, protected underwater cultural heritage, and to give directions in relation to articles, including to store them in a particular way or to deliver them to other people.

Inspectors have powers to ensure people are complying with this Act, to investigate non-compliance and to enforce this Act. Enforcement mechanisms include infringement notices, enforceable undertakings and injunctions.

The Minister maintains a register in relation to underwater cultural heritage. The register includes information relating to the location of known remains of vessels and other articles in waters, declarations that have been made and permits that have been granted, as well as other information.

5   Extension to external Territories

             (1)  This Act extends to every external Territory.

             (2)  The Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.

6   This Act binds the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  However, this Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

7   Extraterritorial operation of this Act

This Act and Regulatory Powers Act generally apply within and outside Australia

             (1)  Subject to this section, this Act, and the Regulatory Powers Act as it applies in relation to this Act, extend to acts, omissions, matters and things outside Australia.

Regulatory provisions apply beyond the contiguous zone only to Australian entities

             (2)  To the extent that a provision of Part 3, or a provision of the Regulatory Powers Act as it applies in relation to Part 3, has effect in relation to waters or a place beyond the outer limits of the contiguous zone of Australia, that provision applies only in relation to Australian entities.

Regulatory provisions apply to all persons and vessels in Australia and the territorial sea

             (3)  To the extent that a provision of Part 3 (except section 30), or a provision of the Regulatory Powers Act as it applies in relation to Part 3, has effect in relation to Australia or the territorial sea of Australia, that provision applies in relation to all persons, including foreign persons, and to all vessels, including foreign vessels.

Prohibition on damaging etc. protected underwater cultural heritage also applies to all persons and vessels up to the outer limits of contiguous zone

             (4)  To the extent that section 30, or a provision of the Regulatory Powers Act as it applies in relation to that section, has effect in relation to Australia, the territorial sea of Australia or the contiguous zone of Australia, that section or provision applies in relation to all persons, including foreign persons, and to all vessels, including foreign vessels.

This Act and the Regulatory Powers Act have effect subject to international law obligations

             (5)  This Act, and the Regulatory Powers Act as it applies in relation to this Act, have effect subject to:

                     (a)  the obligations of Australia under international law, including obligations under any international agreement binding on Australia; and

                     (b)  any law of the Commonwealth giving effect to such an agreement.

Definitions

             (6)  In this section:

Australian entity means:

                     (a)  an Australian citizen; or

                     (b)  a body corporate established by or under a law of the Commonwealth, of a State or of a Territory; or

                     (c)  a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981 .

foreign person means a person other than an Australian entity.

foreign vessel means a vessel other than a ship that has Australian nationality under section 29 of the Shipping Registration Act 1981 .

8   Geographical application of offences

                   Division 14 (Standard geographical jurisdiction) of the Criminal Code does not apply in relation to an offence against this Act.

Note:          The extended geographical application that section 7 gives to this Act applies to the offences and civil penalty provisions of this Act.

Division 2 Definitions

9   Definitions

             (1)  In this Act:

adverse impact : see subsection 30(2).

approved form means a form approved under section 58.

associated with : see section 10.

Australia , when used in a geographical sense, includes the external Territories.

Australia-Netherlands Agreement means the Agreement between Australia and the Netherlands concerning Old Dutch Shipwrecks, done at The Hague on 6 November 1972.

Note:          The Agreement is in Australian Treaty Series 1972 No. 18 ([1972] ATS 18) and could in 2018 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Australian waters : see section 11.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

coastal waters of a State or the Northern Territory: see section 12.

Commonwealth waters : see section 13.

Dutch relic means an article mentioned in Article 1 or 2 of the Australia-Netherlands Agreement.

Dutch shipwreck : see section 14.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

evidential material has the same meaning as in the Regulatory Powers Act.

foreign underwater cultural heritage means an article that has been removed from waters and, at the time the article was removed from waters, the article:

                     (a)  had been in waters for at least 100 years; and

                     (b)  was underwater cultural heritage of a foreign country.

inspector means:

                     (a)  a member of the Australian Federal Police; or

                     (b)  a person appointed under section 60.

in waters : a reference in this Act to a thing being in waters includes a reference to the thing:

                     (a)  being in, or forming part of, the seabed or the subsoil of the seabed, beneath those waters; or

                     (b)  being on, or forming part of, a reef in those waters.

offence against this Act includes:

                     (a)  an offence against section 6 of the Crimes Act 1914 that relates to this Act; and

                     (b)  an ancillary offence (within the meaning of the C riminal Code ) that relates to this Act; and

                     (c)  an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

offer to supply includes:

                     (a)  make available for supply; and

                     (b)  expose for supply; and

                     (c)  display for supply; and

                     (d)  advertise for supply.

permit holder means the holder of a permit granted under section 23 (including a person to whom a permit has been transferred).

prohibited conduct in a protected zone: see subsection 20(6).

protected underwater cultural heritage means:

                     (a)  an article covered by subsection 16(1); or

                     (b)  an article covered by a declaration made under subsection 17(1); or

                     (c)  an article covered by a declaration made under subsection 18(1); or

                     (d)  an article covered by a provisional declaration made under subsection 19(1).

protected zone means an area in relation to which a declaration is in force under subsection 20(1).

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .

relevant agreement means an agreement entered into between Australia and one or more foreign countries in relation to the protection of underwater cultural heritage.

removed from waters : a reference in this Act to a thing being removed from waters includes a reference to the thing:

                     (a)  having been washed away from waters; or

                     (b)  having been removed, or washed away, from the seabed, or the subsoil of the seabed, beneath waters; or

                     (c)  having been removed, or washed away, from a reef in waters.

sea includes any waters within the ebb and flow of the tide.

Secretary means Secretary of the Department.

supply includes supply (including re-supply) by way of sale, exchange, gift, lease, loan, hire or hire-purchase.

this Act includes the Underwater Cultural Heritage Rules.

underwater cultural heritage : see section 15.

Underwater Cultural Heritage Rules means the rules made under section 61.

vessel means any kind of vessel used in navigation by water, however propelled or moved, including the following:

                     (a)  a barge, lighter or other floating craft;

                     (b)  an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water.

             (2)  A thing is not to be taken to not be an article for the purposes of this Act only because it is attached to:

                     (a)  the remains of a vessel; or

                     (b)  the remains of an aircraft; or

                     (c)  a reef; or

                     (d)  the seabed: or

                     (e)  the subsoil of the seabed.

             (3)  A reference in this Act to:

                     (a)  the remains of a vessel; or

                     (b)  the remains of an aircraft; or

                     (c)  an article;

includes a reference to part of the remains or article.

             (4)  A reference in this Act to failure to do an act or thing includes a reference to refusing or neglecting to do that act or thing.

10   Meaning of associated with

             (1)  An article is associated with a vessel, aircraft or other vehicle if the article:

                     (a)  appears to have formed part of the vessel, aircraft or other vehicle; or

                     (b)  appears to have been installed or carried on the vessel, aircraft or other vehicle; or

                     (c)  is remains of humans or animals that appear to have been on board the vessel, aircraft or other vehicle; or

                     (d)  appears to have been constructed or used by a person associated with a vessel.

             (2)  An article is associated with a vessel, aircraft or other vehicle even if the article has been wholly or substantially incorporated into another object or thing.

11   Meaning of Australian waters

Meaning generally

             (1)  Australian waters means:

                     (a)  any waters on the landward side of the territorial sea of Australia that are not within the limits of a State; and

                     (b)  the territorial sea of Australia; and

                     (c)  the sea above the continental shelf of Australia; and

                     (d)  the seabed and subsoil beneath any such sea or waters.

Extended meaning—remains of vessels partly in Australian waters and partly in State waters

             (2)  If:

                     (a)  the remains of a vessel are in, or have been removed from, Australian waters; and

                     (b)  another part (the relevant part ) of the vessel is in, or has been removed from, waters of the sea within the limits of a State; and

                     (c)  a Minister of the State has informed the Minister, in writing, that the State consents to the making of a declaration under this subsection in relation to the relevant part;

the Minister may, by notifiable instrument, declare that the relevant part is, for the purposes of this Act (except this section and section 20), taken to be a part that is in, or has been removed from, Australian waters.

Extended meaning—remains of vessels that have moved into State waters

             (3)  If:

                     (a)  the remains of a vessel (other than a Dutch shipwreck) have been removed from Australian waters; and

                     (b)  the remains are in waters of the sea within the limits of a State; and

                     (c)  a Minister of the State has informed the Minister, in writing, that the State consents to the making of a declaration under this subsection in relation to the remains;

the Minister may, by notifiable instrument, declare that the remains are, for the purposes of this Act (except this section and section 20), taken to be remains that are in Australian waters.

Extended meaning—Dutch shipwrecks and relics in, or removed from, State waters

             (4)  If:

                     (a)  a Dutch shipwreck or Dutch relic is in, or has been removed from, waters of the sea within the limits of a State; and

                     (b)  a Minister of the State has informed the Minister, in writing, that the State consents to the making of a declaration under this subsection in relation to the shipwreck or relic;

the Minister may, by notifiable instrument, declare that the shipwreck or relic is, for the purposes of this Act (except this section and section 20), taken to be a shipwreck or relic that is in, or has been removed from, Australian waters.

Varying and revoking declarations

             (5)  The Minister may, by notifiable instrument, with the consent of the Minister of the State, vary or revoke a declaration made under this section.

12   Meaning of coastal waters of a State or the Northern Territory

                   The coastal waters of a State or the Northern Territory are:

                     (a)  the part or parts of the territorial sea that are:

                              (i)  within 3 nautical miles of the baseline of the territorial sea; and

                             (ii)  adjacent to the State or the Northern Territory; and

                     (b)  the waters of the sea that are:

                              (i)  on the landward side of the baseline of the territorial sea; and

                             (ii)  adjacent to the State or the Northern Territory and not within the limits of the State or the Northern Territory; and

                     (c)  the seabed and subsoil beneath any such sea.

13   Meaning of Commonwealth waters

Meaning generally

             (1)  Commonwealth waters means:

                     (a)  the territorial sea of Australia, other than coastal waters of a State or the Northern Territory; and

                     (b)  the sea above the continental shelf of Australia; and

                     (c)  the seabed and subsoil beneath any such sea or waters.

Extended meaning—certain articles partly in Commonwealth waters and partly in coastal waters, State waters or Northern Territory waters

             (2)  If:

                     (a)  an article of underwater cultural heritage (other than the remains of a vessel) is in, or has been removed from, Commonwealth waters; and

                     (b)  another part (the relevant part ) of the article is in, or has been removed from, waters of the sea that are within:

                              (i)  the coastal waters of a State or the Northern Territory; or

                             (ii)  the limits of a State or the Northern Territory; and

                     (c)  a Minister of the State or the Northern Territory has informed the Minister, in writing, that the State or the Northern Territory consents to the making of a declaration under this subsection in relation to the relevant part;

the Minister may, by notifiable instrument, declare that the relevant part is, for the purposes of this Act (except this section and section 20), taken to be a part that is in, or has been removed from, Commonwealth waters.

Extended meaning—certain articles within coastal waters of a State or the Northern Territory

             (3)  If:

                     (a)  an article of underwater cultural heritage (other than the remains of a vessel) is in the coastal waters of a State or the Northern Territory; and

                     (b)  a Minister of the State or the Northern Territory has informed the Minister, in writing, that the State or the Northern Territory consents to the making of a declaration under this subsection in relation to the article;

the Minister may, by notifiable instrument, declare that the article is, for the purposes of this Act (except this section and section 20), taken to be an article of underwater cultural heritage that is in Commonwealth waters.

Extended meaning—certain articles that have moved into State waters or Northern Territory waters

             (4)  If:

                     (a)  an article of underwater cultural heritage (other than the remains of a vessel) has been removed from Commonwealth waters; and

                     (b)  the article is in waters of the sea within the limits of a State or the Northern Territory; and

                     (c)  a Minister of the State or the Northern Territory has informed the Minister, in writing, that the State or the Northern Territory consents to the making of a declaration under this subsection in relation to the article;

the Minister may, by notifiable instrument, declare that the article is, for the purposes of this Act (except this section and section 20), taken to be an article of underwater cultural heritage that is in Commonwealth waters.

Varying and revoking declarations

             (5)  The Minister may, by notifiable instrument, with the consent of the Minister of the State or the Northern Territory, vary or revoke a declaration made under this section.

14   Meaning of Dutch shipwreck

             (1)  Dutch shipwreck means:

                     (a)  a wrecked vessel covered by the table in subsection (2); or

                     (b)  any other wrecked vessel mentioned in Article 1 of the Australia-Netherlands Agreement (whether or not lying on or off the coast of Western Australia as mentioned in that Article).

             (2)  The wrecked vessels are as follows:

 

Dutch shipwrecks

Item

Name by which the vessel was known

Approximate location

1

Batavia

Beacon Island, Wallabi Group, Houtman Abrolhos

2

Vergulde Draeck or Gilt Dragon

Ledge Point

3

Zuytdorp

40 miles north of the mouth of the Murchison River

4

Zeewyk

Gun Island, Pelsart Group, Houtman Abrolhos

15   Meaning of underwater cultural heritage

             (1)  Underwater cultural heritage means any trace of human existence that:

                     (a)  has a cultural, historical or archaeological character; and

                     (b)  is located under water.

             (2)  For the purposes of subsection (1), a trace of human existence includes:

                     (a) sites, structures, buildings, artefacts and human and animal remains, together with their archaeological and natural context; and

                     (b)  vessels, aircraft and other vehicles or any part thereof, together with their archaeological and natural context; and

                     (c)  articles associated with vessels, aircraft or other vehicles, together with their archaeological and natural context.

             (3)  For the purposes of paragraph (1)(b), a trace of human existence is located under water:

                     (a)  whether partially or totally under water; and

                     (b)  whether under water periodically or continuously.

             (4)  However, the following are not underwater cultural heritage :

                     (a)  pipelines or cables on the seabed;

                     (b)  installations (other than pipelines or cables) that are:

                              (i)  placed on the seabed; and

                             (ii)  still in use.