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Part 5—Other matters

Part 5 Other matters

   

48   Register of underwater cultural heritage

             (1)  The Minister must establish and maintain a register for the purposes of this Act.

             (2)  The register may be established and maintained by electronic means.

             (3)  The register must include particulars of:

                     (a)  known articles covered by subsection 16(1); and

                     (b)  declarations in force under subsection 17(1), 18(1) or 19(1); and

                     (c)  permits granted under section 23; and

                     (d)  any other matter prescribed by the Underwater Cultural Heritage Rules for the purposes of this paragraph.

             (4)  The Underwater Cultural Heritage Rules may make provision for and in relation to the following:

                     (a)  the correction of entries in the register;

                     (b)  the publication of the register, in whole or in part, or of specified information entered in the register;

                     (c)  any other matter relating to the administration or operation of the register.

49   Review of decisions

                   Applications may be made to the Administrative Appeals Tribunal for review of any of the following decisions made by the Minister:

                     (a)  a decision under subsection 17(1) to declare an article to be protected underwater cultural heritage;

                     (b)  a decision under subsection 18(1) to declare an article to be protected underwater cultural heritage;

                     (c)  a decision under subsection 19(1) to provisionally declare an article to be protected underwater cultural heritage;

                     (d)  a decision under section 20 to declare an area to be a protected zone;

                     (e)  a decision under subsection 21(1) to vary or revoke a declaration;

                      (f)  a decision under section 23 to grant, or to refuse to grant, a permit;

                     (g)  a decision under section 23 to grant a permit in terms that are different from those applied for;

                     (h)  a decision under section 25 to vary, or to refuse to vary, a permit;

                      (i)  a decision under section 26 to suspend or revoke a permit.

50   Declaration of ownership of specified Dutch shipwrecks and associated articles

Declaration in relation to Dutch shipwrecks

             (1)  If the Minister is satisfied that it is necessary to do so for the purpose of giving effect to the Australia-Netherlands Agreement, the Minister may, by legislative instrument, declare the ownership of a specified Dutch shipwreck to be vested in a specified authority of the Commonwealth.

             (2)  If a declaration is made under subsection (1), the authority specified in the declaration becomes, by force of this subsection, the owner of the Dutch shipwreck (free of any charges or other encumbrances) at the start of the day after the day the declaration is registered on the Federal Register of Legislation.

Declaration in relation to Dutch relics

             (3)  If the Minister is satisfied that it is necessary to do so for the purpose of giving effect to the Australia-Netherlands Agreement, the Minister may, by legislative instrument, declare the ownership of a specified Dutch relic to be vested in:

                     (a)  a specified authority of the Commonwealth; or

                     (b)  Western Australia; or

                     (c)  a specified authority of Western Australia; or

                     (d)  the government of the Kingdom of the Netherlands.

             (4)  If a declaration is made under subsection (3), the person specified in the declaration becomes, by force of this subsection, the owner of the Dutch relic (free of any charges or other encumbrances) at the start of the day after the day the declaration is registered on the Federal Register of Legislation.

Act still applies to declared articles

             (5)  The making of a declaration under this section in relation to a Dutch shipwreck or a Dutch relic does not affect the application of any other provision of this Act to, or in relation to, the article.

Commonwealth power to deal with articles not affected

             (6)  Nothing in this section affects any power of the Commonwealth otherwise than under this Act to dispose of or otherwise deal with articles that are the property of the Commonwealth.

51   Declaration of ownership of other underwater cultural heritage

             (1)  If the Minister is satisfied that it is necessary to do so for the purpose of giving effect to this Act or any relevant agreement (other than the Australia-Netherlands Agreement), the Minister may, by legislative instrument, declare the ownership of a specified article of underwater cultural heritage to be vested in:

                     (a)  the Commonwealth; or

                     (b)  a specified authority of the Commonwealth; or

                     (c)  a specified State or Territory; or

                     (d)  a specified authority of a State or Territory; or

                     (e)  the government of a foreign country; or

                      (f)  any other specified person.

Note:          The Commonwealth is entitled to all unclaimed wreck found in Australia (see section 228 of the Navigation Act 2012 ).

             (2)  If a declaration is made under subsection (1), the person specified in the declaration becomes, by force of this subsection, the owner of the article (free of any charges or other encumbrances) at the start of the day after the day the declaration is registered on the Federal Register of Legislation.

             (3)  The making of a declaration under subsection (1) in relation to an article does not affect the application of any other provision of this Act to, or in relation to, the article.

             (4)  Nothing in this section affects any power of the Commonwealth otherwise than under this Act to dispose of or otherwise deal with articles that are the property of the Commonwealth.

52   Ownership of, and sovereignty in, remains of Australian defence vessels etc.

             (1)  Ownership of, and sovereignty in, the following property in waters outside the outer limits of Australian waters vests in the Commonwealth:

                     (a)  the remains of the following vessels:

                              (i)  a vessel belonging to or used by the Australian Defence Force;

                             (ii)  a Government vessel (within the meaning of the Navigation Act 2012 ) that was used only on government non-commercial service;

                     (b)  articles associated with such vessels;

                     (c)  the remains of aircraft belonging to or used by the Australian Defence Force;

                     (d)  articles associated with such aircraft.

             (2)  Subsection (1) does not apply to the remains of a vessel if:

                     (a)  the vessel was captured by, and surrendered to, a foreign country before the vessel sank; or

                     (b)  the Commonwealth has expressly relinquished its rights in relation to the vessel under international law.

             (3)  Subsection (1) does not apply to the remains of an aircraft if:

                     (a)  the aircraft was abandoned after it sank, with the intention that the Commonwealth relinquish its rights in relation to the aircraft; or

                     (b)  the Commonwealth has expressly relinquished its rights in relation to the aircraft under international law.

53   Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

54   Certificate by Minister to be evidence

             (1)  The Minister may give a written certificate stating a place specified in the certificate is a place:

                     (a)  in Australian waters; or

                     (b)  in Commonwealth waters; or

                     (c)  in waters within the limits of a State or the Northern Territory; or

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

                     (e)  in a specified protected zone.

             (2)  In a proceeding for an offence against this Act or a contravention of a civil penalty provision, a certificate under subsection (1) is prima facie evidence of the matters stated in the certificate.

55   Contravening offence or civil penalty provisions

             (1)  This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision ) commits an offence or is liable to a civil penalty.

             (2)  For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.

             (3)  For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.

Note:          Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

56   Delegation of Minister’s powers

             (1)  The Minister may, in writing, delegate any of his or her powers or functions under this Act to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Department; or

                     (c)  any other person that the Minister considers has appropriate qualifications or expertise.

             (2)  Subsection (1) does not apply in relation to the Minister’s power under section 61 (power to make Underwater Cultural Heritage Rules).

             (3)  The Minister must not delegate a power or function, under subsection (1), to an officer or employee of an authority of a State or of the Northern Territory without the agreement of the State or Northern Territory.

             (4)  In exercising powers or performing functions under a delegation under subsection (1), the delegate must comply with any directions of the Minister.

57   Delegation of Secretary’s powers

             (1)  The Secretary may, in writing, delegate his or her powers and functions under this Act, or the Regulatory Powers Act as it applies in relation to this Act, to an SES employee, or an acting SES employee, in the Department.

             (2)  A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the Secretary.

58   Approved forms

                   The Minister may, in writing, approve a form for the purposes of a provision of this Act.

59   Arrangements for States and the Northern Territory to carry out certain functions

             (1)  The Minister may make arrangements with the appropriate Minister of a State or of the Northern Territory for carrying out by the State or the Northern Territory, on behalf of the Commonwealth, of functions under this Act.

             (2)  An arrangement under this section may provide for the payment to a State or the Northern Territory of amounts in respect of the performance of functions under the arrangement.

60   Appointment of inspectors

             (1)  The Secretary may, in writing, appoint an officer or employee of an authority (however described) of the Commonwealth, a State or a Territory as an inspector for the purposes of Part 3 or 4.

             (2)  The Secretary must not appoint an officer or employee of an authority of a State or Territory as an inspector without the agreement of the State or Territory.

             (3)  The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.

             (4)  An inspector must, in exercising powers as such, comply with any directions of the Secretary.

             (5)  If a direction is given in writing under subsection (4), the direction is not a legislative instrument.

61   Underwater Cultural Heritage Rules

             (1)  The Minister may, by legislative instrument, make rules (the Underwater Cultural Heritage Rules ) prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the Underwater Cultural Heritage Rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act, the Australia-Netherlands Agreement or any other relevant agreement.

             (2)  The Underwater Cultural Heritage Rules may provide for charging fees in respect of any matters under this Act.

             (3)  Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 , the Underwater Cultural Heritage Rules:

                     (a)  may be of general application or may be limited as provided in the rules; and

                     (b)  may make different provision in relation to different kinds of underwater cultural heritage, circumstances or any other matter.

             (4)  Despite subsection 14(2) of the Legislation Act 2003 , the Underwater Cultural Heritage Rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.

             (5)  To avoid doubt, the Underwater Cultural Heritage Rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.

             (6)  In this section, a reference to this Act does not include a reference to the Underwater Cultural Heritage Rules.