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Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1998 .

2   Commencement

             (1)  Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

             (2)  Subject to subsection (3), the other provisions of this Act commence on a day or days to be fixed by Proclamation.

             (3)  If a provision of this Act referred to in subsection (2) does not commence within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3   Schedule(s)

                   Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4   Main object of Act

                   The main object of this Act is to establish procedures relating to:

                     (a)  the preservation and protection from injury or desecration of certain significant indigenous areas, and of certain significant indigenous objects, that are situated in Australia or Australian waters; and

                     (b)  the accreditation of the laws in force in States and self-governing Territories as accredited heritage protection regimes in respect of a particular matter or matters.

5   Definitions

             (1)  In this Act, unless the contrary intention appears:

Aboriginal peoples means peoples of the Aboriginal race of Australia.

accredited heritage protection regime , in relation to a State or self-governing Territory and in relation to a particular matter or matters, means the laws in force in that State or Territory in respect of which a declaration by the Minister under section 25 is in force in relation to the matter or matters.

applicant means an indigenous person, or a group of such persons, by whom, or on whose behalf, an application is made.

application means an application made under section 29 for an LPO.

AR application means an application for an LPO made in respect of an area, or an object, in relation to the protection of which there is an accredited heritage protection regime in force.

area means an area of land, an area of water, an area of land beneath an area of water or any combination of such areas.

Australia includes the external Territories.

Australian waters means:

                     (a)  the coastal sea of Australia; and

                     (b)  the coastal sea of each external Territory; and

                     (c)  any waters over which Australia asserts sovereignty under the Seas and Submerged Lands Act 1973 .

coastal sea has the meaning given by subsection 15B(4) of the Acts Interpretation Act 1901 .

Commonwealth Minister means the Minister responsible for the administration of this Act.

core parties or core party has the meaning given by subsection 48(2).

Director means the person holding office from time to time as Director of Indigenous Heritage Protection and includes any person acting in that office.

emergency protection order or EPO means an order made under section 62.

finding , in relation to a State or Territory, or to an authority of a State or Territory, has the meaning given by subsection (3).

indigenous human remains means the whole or part of the bodily remains of an indigenous person, but does not include:

                     (a)  a body or the remains of a body:

                              (i)  buried in accordance with the law of a State or Territory; or

                             (ii)  buried in land that is, in accordance with indigenous tradition, used or recognised as a burial ground; or

                     (b)  an object made from human hair or from any other bodily material that is not readily recognisable as being bodily material; or

                     (c)  a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post-mortem examinations.

indigenous person means a person who is a member of one of the Aboriginal peoples of Australia or a Torres Strait Islander.

indigenous tradition means the body of traditions, observances, customs and beliefs of indigenous persons generally or of a particular community or group of indigenous persons, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

interim protection order or IPO means an order made under section 63.

jurisdictional limits means:

                     (a)  in relation to a State—the area within:

                              (i)  the limits of the State; or

                             (ii)  the coastal waters of the State (within the meaning of the Coastal Waters (State Powers) Act 1980 ); or

                     (b)  in relation to the Australian Capital Territory—the areas within the limits of that Territory; or

                     (c)  in relation to the Northern Territory—the area within:

                              (i)  the limits of the Territory; or

                             (ii)  the coastal waters of the Territory (within the meaning of the Coastal Waters (Northern Territory Powers) Act 1980 ); or

                     (d)  in relation to Norfolk Island—the area within the limits of the Territory.

long-term protection order or LPO means an order made by the Minister under section 38 or 45.

overlapping area , in relation to an area that is the subject of an original application, has the meaning given by subsection (5).

protection order means:

                     (a)  an emergency protection order; or

                     (b)  an interim protection order; or

                     (c)  a long-term protection order;

made under this Act.

Register means the Register of Claims for Protection established under section 22.

responsible Minister means:

                     (a)  in relation to a State:

                              (i)  if there is no nomination under subparagraph (ii)—the Premier of the State; or

                             (ii)  the Minister of the Crown of the State nominated in writing to the Commonwealth Minister by the Premier of that State for the purposes of this definition; and

                     (b)  in relation to the Australian Capital Territory, the Northern Territory or Norfolk Island:

                              (i)  if there is no nomination under subparagraph (ii)—the Chief Minister of the Territory; or

                             (ii)  a Minister of the Territory nominated in writing to the Commonwealth Minister by the Chief Minister of that Territory for the purposes of this definition.

significant indigenous area means:

                     (a)  an area of land situated in Australia or situated in or beneath water in Australia or Australian waters; or

                     (b)  an area of water in Australia; or

                     (c)  an area of Australian waters;

being an area of particular significance to indigenous persons in accordance with indigenous tradition.

significant indigenous object means an object (including indigenous human remains), situated in Australia or in Australian waters, that is of particular significance to indigenous persons in accordance with indigenous tradition.

Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.

UR application means an application for an LPO made in respect of an area, or an object, in relation to the protection of which there is no accredited heritage protection regime in force.

             (2)  In this Act:

                     (a)  a reference to an area or place situated in Australia or Australian waters includes a reference to an area of water in Australia, an area of Australian waters, or an area of land situated in or beneath water in Australia or Australian waters; and

                     (b)  a reference to an area situated within the jurisdictional limits of a State or Territory includes a reference to an area of water inside those limits, an area of Australian waters inside those limits or an area of land situated in or beneath water in Australia, or Australian waters, inside those limits.

             (3)  In this Act, a reference to a finding of a State or Territory, or of an authority of a State or Territory, as to a particular matter includes a reference to an acceptance, or a rejection, by that State or Territory or by that authority, of an assertion as to that matter.

             (4)  In this Act:

                     (a)  a reference to an object (whether or not comprising indigenous human remains) situated in Australia or Australian waters includes a reference to an object beneath water in Australia or beneath Australian waters; and

                     (b)  a reference to an object (whether or not comprising indigenous human remains) situated within the jurisdictional limits of a State or Territory includes a reference to an object beneath water in Australia, or beneath Australian waters, inside those limits.

             (5)  In this Act, a reference to an overlapping area, in relation to an area that is the subject of an original application, means an area that is included within, or that includes, or that partially overlaps, the area to which the original application relates.

             (6)  For the purposes of this Act, an area or object is taken to be injured or desecrated if:

                     (a)  in the case of an area:

                              (i)  it is used or treated in a manner inconsistent with indigenous tradition; or

                             (ii)  by reason of anything done in, on or near the area, the use or significance of the area in accordance with indigenous tradition is adversely affected; or

                            (iii)  passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with indigenous tradition; or

                     (b)  in the case of an object—it is used or treated in a manner inconsistent with indigenous tradition;

and references in this Act to injury or desecration shall be construed accordingly.

             (7)  For the purposes of this Act, an area or object is taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.

6   Extension to external Territories, coastal sea and other waters

                   This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory and to any waters over which Australia asserts sovereign right under the Seas and Submerged Lands Act 1973 .

7   Act binds the Crown

                   This Act binds the Crown in each capacity.

8   Extraterritorial operation of Act

                   This Act applies, according to its tenor, to all persons, and to all vessels, whether or not they are within Australia or Australian waters.