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Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Part 3 Accreditation procedures

   

24   States and self-governing Territories may apply for accreditation

                   The responsible Minister of a State or self-governing Territory may apply in writing to the Commonwealth Minister for the accreditation of the laws of that State or Territory as an accredited heritage protection regime in relation to one or more of the following matters:

                     (a)  the protection of areas situated within the jurisdictional limits of that State or Territory;

                     (b)  the protection of objects (including indigenous human remains) situated within those jurisdictional limits;

                     (c)  the reporting of indigenous human remains situated within those jurisdictional limits.

25   Processing applications for accreditation

             (1)  If the Commonwealth Minister, on receiving an application for accreditation, is satisfied that the laws of the State or self-governing Territory to which the application relates meet the standards for accreditation for one or more of the following matters:

                     (a)  the protection of areas situated within the jurisdictional limits of that State or Territory;

                     (b)  the protection of objects (including indigenous human remains) situated within those jurisdictional limits;

                     (c)  the reporting of indigenous human remains situated within those jurisdictional limits;

the Minister must, by notice in writing, declare those laws to constitute an accredited heritage protection regime in relation to the matter or matters.

Note:          The standards for accreditation are set out in section 26.

             (2)  Before making a declaration under subsection (1), the Minister may, if the Minister thinks it necessary, seek further particulars from the responsible Minister as to the nature of the laws in respect of which accreditation has been sought.

             (3)  In determining whether the laws of a State or self-governing Territory meet the standards for accreditation, the Minister may seek the advice of the Director and of any other person or body that the Minister considers appropriate.

26   Standards for accreditation

             (1)  Subject to subsection (2), the following are standards for the accreditation of the laws in force in a State or self-governing Territory in relation to the matters referred to in paragraphs 24(a), (b) and (c):

                     (a)  that those laws provide for the protection of all areas and objects that are significant to indigenous persons in terms of their indigenous traditions and, if that protection is to be removed, for the requirements, in particular, of paragraphs (e), (f) and (g ) to be met;

                     (b)  that those laws recognise that indigenous persons are the primary source of information about the significance of areas and objects referred to in paragraph (a);

                     (c)  that those laws provide for decisions in relation to the significance of areas or objects to be made in consultation with indigenous persons and separately from any decisions in relation to the protection of those areas or objects;

                     (d)  that those laws provide an option for persons to obtain advance approval of an activity in relation to an area taking into account indigenous heritage issues, and provide for the involvement of indigenous persons in that approval process;

                     (e)  that those laws promote negotiated outcomes between indigenous persons and others whose activities might threaten areas or objects significant to those indigenous persons;

                      (f)  that those laws provide protection for culturally sensitive information disclosed in the course of administering heritage protection legislation;

                     (g)  that those laws ensure that, subject to paragraph (f), interested parties are treated fairly and given an opportunity to put their views and obtain reasons for decisions on the removal or non-removal of protection referred to in paragraph (a);

                     (h)  that those laws provide effective deterrents to injury or desecration of areas referred to in paragraph (a) or injury, desecration or illegal removal of objects so referred to through appropriate offences and penalties;

                      (j)  that those laws provide for the reporting of findings of indigenous human remains.

Note:          The standards include a number of terms defined, and concepts explained, in section 5.

             (2)  To avoid doubt, and for the purposes of this Part:

                     (a)  the standards as described in paragraphs (1)(a) to (h) (inclusive) are the standards for accreditation in relation to the protection of areas situated within the jurisdictional limits of the State or Territory concerned; and

                     (b)  the standards as described in paragraphs (1)(a), (b), (c), (e), (f), (g) and (h) are the standards for accreditation in relation to the protection of objects (including indigenous human remains) situated within the jurisdictional limits of the State or Territory concerned; and

                     (c)  the standard described in paragraph (1)(j) is the standard for accreditation in relation to the reporting of findings of indigenous human remains situated within the jurisdictional limits of the State or Territory concerned.

27   Minister may revoke or vary accreditation

Notification of failure to meet standards

             (1)  If:

                     (a)  the laws in force in a State or Territory have been declared to be an accredited heritage protection regime in relation to one or more of the following matters (the accredited matter or accredited matters ):

                              (i)  the protection of areas situated within the jurisdictional limits of that State or Territory; or

                             (ii)  the protection of objects (including indigenous human remains) situated within those jurisdictional limits; or

                            (iii)  the reporting of findings of indigenous human remains situated within those jurisdictional limits; and

                     (b)  the Commonwealth Minister is of the view that the laws as in force in that State or Territory cease to meet the standards for accreditation in their application to the accredited matter or one or more of the accredited matters;

the Commonwealth Minister must, by notice in writing, advise the responsible Minister for that State or Territory that he or she is of that view.

Revoking and varying accreditation

             (2)  If:

                     (a)  a notice has been given under subsection (1) in respect of a matter or matters ( notified matter or notified matters ); and

                     (b)  at the end of 90 days after the giving of the notice, or such longer period as the Commonwealth Minister allows, the Commonwealth Minister:

                              (i)  has considered any response provided by the responsible Minister of the relevant State or Territory; and

                             (ii)  is satisfied that the laws in force in that State or Territory do not meet the standards for accreditation in their application to the notified matter or one or more of the notified matters;

the Commonwealth Minister must, in writing, revoke or vary (as the case requires) the accreditation so that it ceases to have effect in relation to the notified matter or matters in relation to which the Minister is so satisfied.

28   Application of laws not relevant to accreditation

                   Despite the application of the laws of a State or self-governing Territory in the Jervis Bay Territory or in an external Territory as laws of the Commonwealth, the Jervis Bay Territory or that external Territory is not to be treated, for the purposes of this Act, as a part of Australia in which an accredited protection regime is in force in respect of any matter or matters.