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Part 2—Protected underwater cultural heritage

Part 2 Protected underwater cultural heritage

Division 1 Underwater cultural heritage

16   Underwater cultural heritage that is automatically protected

             (1)  The following articles are protected underwater cultural heritage:

                     (a)  all remains of vessels that have been in Australian waters for at least 75 years;

                     (b)  every article that is associated with a vessel, or the remains of a vessel, and that has been in Australian waters for at least 75 years;

                     (c)  all remains of aircraft that have been in Commonwealth waters for at least 75 years;

                     (d)  every article that is associated with an aircraft, or the remains of an aircraft, and that has been in Commonwealth waters for at least 75 years.

             (2)  An article is covered by subsection (1) whether or not the existence or location of the article is known.

             (3)  An article is covered by subsection (1) even if the article is, or has been, removed from Australian waters or Commonwealth waters (as the case may be).

             (4)  The Underwater Cultural Heritage Rules may provide that subsection (1) or (3) does not cover a specified article.

17   Underwater cultural heritage that may be declared to be protected

             (1)  The Minister may, by notifiable instrument, declare an article covered by the table in subsection (5) to be protected underwater cultural heritage if the Minister is satisfied that the article is of heritage significance.

Note:          For matters the Minister must have regard to when deciding whether an article is of heritage significance, see section 22.

             (2)  The declaration must:

                     (a)  describe the article; and

                     (b)  describe the heritage significance of the article; and

                     (c)  if the article has not been removed from waters at the time the declaration is made—specify the location of the article and describe its surrounding environment.

             (3)  An article continues to be covered by a declaration under subsection (1) even if the article is removed from waters after the declaration is made.

             (4)  The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection (1).

             (5)  The following table sets out the articles that may be declared under subsection (1).

 

Articles that may be declared

Item

This kind of article:

If the article:

1

The remains of a vessel

Is in, or has been removed from, Australian waters

2

An article associated with a vessel, or the remains of a vessel

Is in, or has been removed from, Australia waters

3

The remains of an aircraft

Is in, or has been removed from, Commonwealth waters

4

An article associated with an aircraft, or the remains of an aircraft

Is in, or has been removed from, Commonwealth waters

5

An article of underwater cultural heritage that is not otherwise covered by an item in this table

Is in Commonwealth waters

18   Underwater cultural heritage outside Australian waters that may be declared to be protected

             (1)  The Minister may, by notifiable instrument, declare an article of underwater cultural heritage to be protected underwater cultural heritage if:

                     (a)  the article is outside the outer limits of Australian waters; and

                     (b)  the Minister is satisfied that the article is of heritage significance to Australia.

Note:          For matters the Minister must have regard to when deciding whether underwater cultural heritage is of heritage significance, see section 22.

             (2)  An article continues to be covered by a declaration made under subsection (1) even if the article is removed from waters after the declaration is made.

             (3)  The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection (1).

19   Underwater cultural heritage that may be provisionally declared to be protected

             (1)  The Minister may, by notifiable instrument, provisionally declare an article covered by the table in subsection (5) to be protected underwater cultural heritage if the Minister is satisfied that the article may be of heritage significance.

Note:          For matters the Minister must have regard to when deciding whether an article may be of heritage significance, see section 22.

             (2)  An article continues to be covered by a declaration under subsection (1) even if the article is removed from waters after the declaration is made.

             (3)  A declaration under subsection (1) remains in force until the earlier of:

                     (a)  the day the declaration is revoked under subsection (4); and

                     (b)  the day 5 years after the day the declaration is made.

             (4)  The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection (1).

             (5)  The following table sets out the articles that may be provisionally declared under subsection (1).

 

Articles that may be provisionally declared

Item

This kind of article:

If the article:

1

An article that appears to be the remains of a vessel

Is in, or has been removed from, Australian waters

2

An article that may be associated with a vessel, or the remains of a vessel

Is in, or has been removed from, Australia waters

3

An article that appears to be the remains of an aircraft

Is in, or has been removed from, Commonwealth waters

4

An article that may be associated with an aircraft, or the remains of an aircraft

Is in, or has been removed from, Commonwealth waters

5

An article that appears to be underwater cultural heritage and that is not otherwise covered by an item in this table

Is in Commonwealth waters

Division 2 Protected zones

20    Declaring a protected zone

             (1)  The Minister may, by legislative instrument, declare an area containing protected underwater cultural heritage to be a protected zone.

             (2)  A declaration must not be made of an area that consists of sea or land within the limits of a State or the Northern Territory, unless protected underwater cultural heritage to which a declaration under subsection 11(2), (3) or (4) or 13(2), (3) or (4) applies is in the area.

             (3)  In making a declaration under subsection (1), the Minister must have regard to the following matters:

                     (a)  the need to protect underwater cultural heritage that is of particular national or international significance, is rare or is subject to an international treaty or agreement (however described);

                     (b)  the need to limit access to environmentally, socially or archaeologically sensitive underwater cultural heritage;

                     (c)  the need to protect underwater cultural heritage that is under threat of interference, damage, destruction or removal;

                     (d)  any danger posed to the public by the underwater cultural heritage;

                     (e)  the need to improve management of underwater cultural heritage and its surrounding environment which may be subject to impacts from visitation or development activity;

                      (f)  the need to ensure effective monitoring of underwater cultural heritage in remote locations;

                     (g)  any other matter the Minister considers relevant.

             (4)  An area declared under subsection (1):

                     (a)  must not be outside the outer limits of Australian waters; and

                     (b)  may consist of sea, or partly of sea and partly of land; and

                     (c)  may include the airspace above the area, extending to such height above the surface of the sea or land as is specified in the declaration; and

                     (d)  to the extent the area consists of the surface of any sea—includes the waters beneath the area, the seabed beneath that sea and the subsoil of the seabed.

             (5)  The declaration must:

                     (a)  specify the area covered by the declaration; and

                     (b)  specify the period for which the declaration is in force; and

                     (c)  provide a description of the underwater cultural heritage sought to be protected; and

                     (d)  specify conduct (if any) that is prohibited (either generally or in specified circumstances) within the area covered by the declaration.

             (6)  Conduct specified for the purposes of paragraph (5)(d) in relation to a protected zone is prohibited conduct in the protected zone.

             (7)  Without limiting paragraph (5)(d), the declaration may prohibit (either generally or in specified circumstances) any of the following:

                     (a)  the entry of persons or vessels into the area;

                     (b)  the movement of persons or vessels within the area;

                     (c)  trawling or fishing in the area;

                     (d)  conducting underwater activity within the area;

                     (e)  the anchoring or mooring of vessels in the area;

                      (f)  the release or deposit of objects or materials in the area.

21   Varying and revoking protected zone declaration

             (1)  The Minister may, by legislative instrument, vary or revoke a declaration made under subsection 20(1).

             (2)  The Minister must, by legislative instrument, revoke a declaration made under subsection 20(1) in relation to an article of underwater cultural heritage if a declaration under subsection 17(1) or 19(1) is revoked in relation to the article.

Division 3 Other matters

22   Criteria relating to heritage significance

             (1)  The Underwater Cultural Heritage Rules may prescribe criteria relating to assessing whether any of the following are, or may be, of heritage significance:

                     (a)  the remains of a vessel in waters;

                     (b)  articles, in waters, that are associated with a vessel or the remains of a vessel;

                     (c)  the remains of an aircraft in waters;

                     (d)  articles, in waters, that are associated with an aircraft, or the remains of an aircraft;

                     (e)  other underwater cultural heritage.

             (2)  In making a declaration under subsection 17(1), 18(1) or 19(1), the Minister must have regard to any criteria in force under subsection (1) of this section.