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Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Part 4 Applications for protection

Division 1 The receipt and registration of applications

29   The application

             (1)  The Commonwealth Minister may grant a long-term protection order ( LPO ) in respect of an area or object situated in Australia or in Australian waters on the application of:

                     (a)  an indigenous person; or

                     (b)  a person or body acting on behalf of, and with the authority of, an indigenous person;

who claims that the area or object:

                     (c)  is a significant indigenous area or a significant indigenous object in relation to the indigenous person; and

                     (d)  is under threat of injury or desecration.

             (2)  An application:

                     (a)  must be in writing; and

                     (b)  must be lodged with the Director.

             (3)  Without limiting the matters to be dealt with by an application, it must contain the following particulars:

                     (a)  the identity of the applicant;

                     (b)  the date of the application;

                     (c)  an identification of the area or object for which protection is sought;

                     (d)  a description of the significance of the area or object to the applicant;

                     (e)  a description of the activity that threatens the area or object, including a description of the kind of injury or desecration that would occur if the activity took place;

                      (f)  a description of the form of protection sought.

             (4)  An application may be withdrawn at any time.

30   Director to enter applications on Register

             (1)  The Director must, as soon as practicable after receipt of an application:

                     (a)  enter particulars of the application on the Register; and

                     (b)  notify the Minister of its receipt.

             (2)  The Director must ensure that, in relation to any application received, the particulars of the application entered on the Register include:

                     (a)  the identity of the applicant, either specifically or in general terms; and

                     (b)  the date of the application; and

                     (c)  a reasonable identification of the area or object for which protection is sought; and

                     (d)  a description, in general terms, of the significance of the area or object to the applicant; and

                     (e)  a description, in general terms, of the activity that threatens the area or object, including a description of the kind of injury or desecration that would occur if the activity took place; and

                      (f)  a description of the form of protection that is sought.

             (3)  For the purpose of subsection (2), if the identity of the applicant is specified only in general terms, the Register should indicate a means by which more detailed information concerning the identity of the applicant may be obtained.

             (4)  Despite subsection (2), the Register must not contain any information that the Director considers to be of a confidential nature.

             (5)  If information is not included in the Register because of subsection (4), the Director must, without disclosing the information, state in the Register:

                     (a)  the fact that the information is not included; and

                     (b)  the reasons for the Director’s decision not to disclose the information.

31   Rejection of applications in certain circumstances

             (1)  If the Director is satisfied that an applicant has not exhausted the remedies available under the laws of the State or Territory within whose jurisdictional limits the area or object is situated, the Director must reject the application.

             (2)  The Director may, by notice in writing, request an applicant to supply further information in relation to the application concerned before the end of the period specified by the Director in the request.

             (3)  If an applicant refuses or fails to comply with a request under subsection (2), the application may be rejected at the end of the period for supply of that further information.

             (4)  If the Director rejects an application, the Director must:

                     (a)  state the fact of the rejection and the reasons for the rejection in the Register; and

                     (b)  notify the applicant and the Minister that the application has been rejected and of the reasons for its rejection.

32   Rejection of vexatious or frivolous applications

             (1)  The Minister may, at any time after an application has been received and before it is finally disposed of, reject the application if the Minister is satisfied that the application is vexatious or frivolous.

             (2)  The rejection has the effect of terminating all proceedings in relation to that application under this Act.

             (3)  The Minister must:

                     (a)  state the fact of the rejection and the reasons for the rejection in the Register; and

                     (b)  notify the applicant that the application has been rejected and the reasons for its rejection.

             (4)  If the Minister delegates the power under subsection (1) to the Director, the Director must, on rejecting an application as vexatious or frivolous:

                     (a)  comply with subsection (3); and

                     (b)  notify the Minister that the application has been rejected and of the reasons for its rejection.

33   Director to invite other applications

             (1)  If:

                     (a)  the Director receives an application (the original application ) relating to an area or object that is claimed to be under threat of injury or desecration because of a particular activity; and

                     (b)  the Director decides not to reject the original application under section 31; and

                     (c)  before the making of that decision, the original application has not been rejected under section 32 as vexatious or frivolous;

the Director must, by notice published in a newspaper circulating in the region where the area or object is situated:

                     (d)  inform persons of particulars of the application in accordance with subsection (3); and

                     (e)  invite any other indigenous person who claims that the area (or an overlapping area) or object:

                              (i)  is a significant indigenous area or a significant indigenous object in relation to that other indigenous person; and

                             (ii)  is under threat of injury or desecration from the same activity;

                            to lodge an application with the Director within 30 days after publication of that notice.

             (2)  If an application is not lodged by or on behalf of an indigenous person with the Director in relation to the area or object to which the original application relates, or an area that overlaps with that area, within the period referred to in subsection (1), an application by or on behalf of that person in relation to that area, overlapping area, or object and that threat cannot be made under this Act.

             (3)  A notice published in accordance with subsection (1) should contain the same particulars in relation to the original application as are required, under subsection 30(2), to be entered in the Register.

             (4)  For the purposes of subsection (3), if the identity of the applicant in the original application is specified in the notice only in general terms, the notice should indicate a means by which more detailed information concerning the identity of the applicant may be obtained.

             (5)  Despite subsection (3), the notice must not contain any information relating to the original application that the Director considers to be of a confidential nature.

             (6)  If information is not included in the notice because of subsection (5), the Director must, without disclosing the information, state in the notice:

                     (a)  the fact that the information is not so included; and

                     (b)  the reasons for the Director’s decision not to disclose the information.



 

Division 2 Dealing with UR applications

34   Director to facilitate negotiation and mediation processes in relation to UR application

                   If the Director decides not to reject a UR application under section 31, the Director must attempt, by the use of negotiation or mediation processes in accordance with Division 5, to facilitate an agreed outcome in relation to the area or object to which the application relates.

35   The Director must make a report to the Minister in relation to a UR application in certain circumstances

             (1)  This section applies if the Director has given a notification under section 53, in relation to a UR application, to the effect that formal negotiation and mediation processes are no longer available.

             (2)  If this section applies, the Director must make a report to the Minister, in accordance with Division 6, in respect of that application.

             (3)  The Director’s report must:

                     (a)  contain a finding as to whether or not the area or object concerned is a significant indigenous area or a significant indigenous object in relation to the applicant; and

                     (b)  contain a finding as to whether or not the area or object concerned is subject to the threat of injury or desecration; and

                     (c)  outline the processes involved in reaching the findings referred to in paragraphs (a) and (b); and

                     (d)  advise the Minister on the effect that the making of an LPO would have on the proprietary and pecuniary interests of persons other than the applicant and provide a summary of the representations made in respect of that matter; and

                     (e)  advise the Minister of any other matters considered by the Director to be relevant to the claim for protection.

36   Minister may seek a further report from an independent reviewer

                   If:

                     (a)  the Minister is not satisfied that the process outlined in the Director’s report for reaching a finding as to a matter referred to in paragraph 35(3)(a) or (b) in relation to the area or object concerned is adequate; or

                     (b)  the Minister becomes aware that, subsequent to the making of the report, new information has emerged in relation to a matter so referred to that was not available to the Director;

the Minister may appoint an independent reviewer to make a further report, in accordance with Division 6, in relation to that matter.

37   Binding nature of reports

             (1)  If the Minister does not appoint an independent reviewer to make a further report as to a matter referred to in paragraph 35(3)(a) or (b), the Minister is bound by the finding of the Director as to that matter as set out in the Director’s report.

             (2)  If the Minister does appoint an independent reviewer to make a further report as to a matter referred to in paragraph 35(3)(a) or (b), the Minister is bound by the findings of the reviewer as to that matter as set out in the reviewer’s report.

38   Minister may make LPO in certain circumstances

                   If, in relation to a UR application, the Minister is bound:

                     (a)  by a finding that the area or object concerned is a significant indigenous area or a significant indigenous object in relation to the applicant; and

                     (b)  by a finding that the area or object is under threat of injury or desecration;

the Minister may, after having regard to the report of the Director, the report (if any) of an independent reviewer and any other matters that the Minister considers relevant, make such an order in respect of the area or object.

Note:          Division 4 deals with the matters to be covered by an LPO and the provisions for notification and effect of such an order.



 

Division 3 Dealing with AR applications

39   Director to refer AR applications to Minister

             (1)  If the Director decides not to reject an AR application under section 31, the Director must forthwith refer that application to the Minister for decision whether or not to make an LPO on the basis of national interest in the circumstances set out in section 45.

             (2)  If, on receipt of an application from the Director, the Minister is satisfied that, even were it to be established that the area or object concerned is a significant indigenous area or object and is under threat of injury or desecration, there is, on the face of the application, no indication that making an LPO would be in the national interest, the Minister may reject the application and notify the applicant accordingly.

             (3)  The Minister must not make an LPO in respect of the area or object to which an AR application relates before the Minister has consulted with the responsible Minister of the State or Territory within whose jurisdictional limits that area or object is situated in relation to:

                     (a)  any finding by the State or Territory or by an authority of the State or Territory as to whether or not the area or object is, in accordance with indigenous tradition, significant to the applicant and the procedures followed in reaching that finding; and

                     (b)  any finding by the State or Territory or by an authority of the State or Territory as to whether or not the area or object is under threat of injury or desecration and the procedures followed in reaching that finding; and

                     (c)  any information in the possession of the State or Territory, or of any authority of the State or Territory, concerning any proprietary or pecuniary interests in the area or object that are likely to be affected by the grant of such an order; and

                     (d)  any views of the State or Territory concerning the consequences of making the order sought.

             (4)  Subsection (3) does not imply that the Minister may not have regard to any other information from any source that is likely to be relevant to the Minister’s consideration of the application.

40   Minister may adopt State or Territory findings as to significance and threat

             (1)  If the Minister, after examining, on the basis of the consultation referred to in subsection 39(3), the procedures followed by the State or Territory, or an authority of the State or Territory, in making a finding:

                     (a)  that the area or object concerned is, or is not, in accordance with indigenous tradition, significant to the applicant; or

                     (b)  that the area or object concerned is, or is not, under threat of injury or desecration;

is satisfied that the procedures followed were sufficient to provide a reliable basis for the finding, the Minister may elect, in writing, to treat that finding as being conclusive.

             (2)  If the Minister elects, under this section, to treat a finding as being conclusive of a matter, the Minister is bound by that finding.

41   Minister may require report from Director

             (1)  If, in relation to an AR application, the Minister thinks it appropriate, the Minister may, subject to section 42, require the Director to make a report, in accordance with Division 6, concerning all or any of the following issues, namely:

                     (a)  whether or not the area or object to which the application relates is a significant indigenous area or a significant indigenous object in relation to the applicant;

                     (b)  whether or not the area or object concerned is subject to the threat of injury or desecration;

                     (c)  the effect of the grant of an LPO on any proprietary or pecuniary interests in the area or object concerned.

             (2)  The Minister must require a report in relation to a matter referred to in paragraph (1)(a) or (b) if the Minister has not elected, under section 40, to treat the finding of a State or Territory, or of an authority of a State or Territory, in relation to that matter, as being conclusive of the matter.

             (3)  The Director’s report in relation to an AR application must:

                     (a)  if it contains a finding on a matter referred to in paragraph (1)(a) or (b)—outline the processes involved in reaching that finding; and

                     (b)  if it advises the Minister on the effect that the making of an LPO would have on the proprietary and pecuniary interests of persons other than the applicant—include a summary of the representations made concerning that matter.

42   Minister may request Director to facilitate negotiation and mediation processes before making report

                   The Minister may, before seeking such a report in relation to an AR application, ask the Director to attempt, by the use of negotiation or mediation processes in accordance with Division 5, to facilitate an agreed outcome in relation to the area or object concerned.

43   Minister may seek a further report from an independent reviewer

                   If:

                     (a)  the Minister is not satisfied that the process outlined in the Director’s report for reaching a finding as to a matter referred to in paragraph 41(1)(a) or (b) in relation to the area or object concerned is adequate; or

                     (b)  the Minister becomes aware that, subsequent to the making of the report, new information has emerged in relation to a matter so referred to that was not available to the Director;

the Minister may appoint an independent reviewer to make a further report, in accordance with Division 6, in relation to that matter.

44   Binding nature of reports

             (1)  If the Minister does not appoint an independent reviewer to make a further report as to a matter referred to in paragraph 41(1)(a) or (b), the Minister is bound by the finding of the Director as to that matter as set out in the Director’s report.

             (2)  If the Minister does appoint an independent reviewer to make a further report as to a matter referred to in paragraph 41(1)(a) or (b), the Minister is bound by the findings of the reviewer as to that matter as set out in the reviewer’s report.

45   Minister may make LPOs in certain circumstances

                   If, in relation to an AR application, the Minister is bound:

                     (a)  by a finding that the area or object concerned is a significant indigenous area or a significant indigenous object in relation to the applicant; and

                     (b)  by a finding that the area or object is under threat of injury or desecration;

the Minister may, having regard to:

                     (c)  the views of the State or Territory concerned or of any authority of the State or Territory, concerning the likely effect of the making of an LPO on any proprietary or pecuniary interests in the area or object or concerning any other consequences of the making of such an order; and

                     (d)  if the Minister has required the Director to make a report under section 41—that report; and

                     (e)  if the Minister has required an independent reviewer to make a further report under section 43—that further report; and

                      (f)  any other matters that the Minister considers relevant;

make an LPO in respect of the area or object if the Minister is satisfied that the making of such an order is in the national interest.

Note:          Division 4 deals with the matters to be covered by an LPO and the provisions for notification and effect of such an order.



 

Division 4 Content, notification and effect of long-term protection orders

46   Content of LPOs

             (1)  An LPO has effect for such period as is specified in the order.

             (2)  If an LPO is made in relation to an area, it must:

                     (a)  describe the area with sufficient particulars to enable the area to be identified; and

                     (b)  contain provisions in relation to the protection and preservation of the area from injury or desecration.

             (3)  If an LPO is made in relation to an object (including indigenous human remains), it must:

                     (a)  describe the object with sufficient particulars to enable the object to be identified; and

                     (b)  contain provisions in relation to the protection and preservation of the object from injury or desecration.

             (4)  If an LPO is made in relation to indigenous human remains, it may include provisions:

                     (a)  requiring the delivery of the remains to an indigenous person or indigenous persons who are entitled to, and willing to accept, possession, custody or control of the remains in accordance with indigenous tradition; or

                     (b)  otherwise dealing with the remains in accordance with any reasonable directions of an indigenous person or indigenous persons referred to in paragraph (a); or

                     (c)  if there is or are no such person or persons—transferring the remains to a prescribed authority for safekeeping.

47   Notification and effect of LPOs

             (1)  As soon as practicable after deciding whether or not to make an LPO, the Minister must notify the Director of that decision.

             (2)  The Director must enter particulars of the Minister’s decision on the Register and ensure that the applicant and any other persons considered by the Minister to be substantially affected by the Minister’s decision are notified in writing of the decision.

             (3)  An LPO:

                     (a)  must also be published in the Gazette and in a local newspaper circulating in the region concerned; and

                     (b)  comes into operation on the date of its publication in the Gazette or such later date as is specified in the order.

             (4)  A failure to comply with subsection (2) or to publish an LPO in a newspaper in accordance with subsection (3) does not affect the validity of the order.



 

Division 5 Negotiation and mediation

48   Parties to negotiation and mediation processes

             (1)  If the Director is required under Division 2 or 3 to attempt, by the use of negotiation or mediation processes in accordance with this Division, to facilitate an agreed outcome in relation to the area or object to which an application relates, the Director must use his or her best endeavours to identify the parties appropriate to participate in those processes.

             (2)  For the purposes of subsection (1), the parties appropriate to participate in negotiation or mediation processes:

                     (a)  must include the applicant and any other persons identified by the Director as having a direct proprietary or pecuniary interest in the area or object concerned (the core parties ); and

                     (b)  may include any other person who has an interest in the area or object concerned and who the Director identifies as a party appropriate to participate in those processes.

             (3)  A failure by the Director to identify a person as a party appropriate to participate in negotiation or mediation processes does not prevent the registration of an agreement reached between the parties who are so identified.

49   Director may facilitate negotiation or mediation or both

             (1)  If the Director is required by Division 2 or 3 to attempt, by the use of negotiation or mediation processes in accordance with this Division, to facilitate an agreed outcome in relation to the area or object to which an application relates:

                     (a)  the Director must take reasonable steps to encourage effective negotiation between the parties; and

                     (b)  if the Director thinks it appropriate to do so—the Director may engage a mediator to assist the parties in reaching such an outcome.

             (2)  Those steps referred to in paragraph (1)(a) may include assisting the parties to agree on the procedures to be followed in the course of negotiation, including procedures that will restrict the disclosure of:

                     (a)  information that, under indigenous tradition, is confidential or subject to particular disclosure restrictions; or

                     (b)  commercial information that is provided in confidence for the purposes of the negotiation.

             (3)  Nothing in this section prevents the Director from engaging a mediator while the parties continue to negotiate.

50   Time limits for negotiation/mediation processes

             (1)  Subject to subsection (3), all processes of negotiation or mediation, or both, in relation to a UR application must be concluded within a period of 3 months after the 30 days specified in the public notice under section 33 comes to an end.

             (2)  Subject to subsection (3), all processes of negotiation or mediation, or both, in relation to an AR application must be concluded within such period (not exceeding 3 months) after the 30 days specified in the public notice under section 33 comes to an end, as is determined by the Minister.

             (3)  The Minister may, at any time before the end of the period fixed under subsection (1) or (2), or before the end of that period as extended by virtue of a previous operation of this subsection, extend that period by a further period of one month.

             (4)  The extension must be effected by notice in writing given by the Minister to the Director.

51   Registration of negotiated or mediated agreement

             (1)  If the core parties participating in negotiation or mediation processes reach an agreement in relation to the area or object to which an application relates, those parties and any other parties participating in the processes who are prepared to sign the agreement may request the Director to register that agreement.

             (2)  The Director must, if he or she is satisfied that the agreement is consistent with the purposes of this Act, cause particulars of the agreement to be entered on the Register.

52   Effect of registration

             (1)  If an agreement is registered, it has the force of a contract binding on the parties to the agreement.

             (2)  The registration of an agreement in relation to an area or object to which an application relates is taken, for the purpose of this Act, to dispose of the application.

             (3)  The applicant cannot make a new application in respect of the area or object in respect of which an agreement has been registered unless:

                     (a)  the area or object is under a new threat of injury or desecration; or

                     (b)  another signatory to the agreement has breached the agreement.

             (4)  The right to make a new application in circumstances where a registered agreement is breached does not imply that the applicant cannot sue the party who breaches the agreement.

53   Termination of formal negotiation and mediation processes

             (1)  A core party may inform the Director, in writing, that:

                     (a)  the core party is not prepared to enter into any negotiation or mediation process; or

                     (b)  if any such process has been entered into—the core party is not prepared to continue that process or to undertake any new negotiation or mediation process.

             (2)  If the Director receives a notification under subsection (1) from a core party or forms the view, without such a notification, that neither negotiation nor mediation processes between the core parties have any prospect of success within a reasonable time, the Director must inform the Minister that he or she has been so notified or is of that view.

             (3)  If, in relation to a UR application, the Director is satisfied, after taking account of any views of the Minister concerning the matter, that neither negotiation nor mediation processes between the core parties have any prospect of success within a reasonable time, the Director must, by notice in writing to all of the parties concerned, inform them:

                     (a)  that he or she is so satisfied; and

                     (b)  that formal negotiation and mediation processes are no longer available.

             (4)  If, in relation to an AR application, the Minister is satisfied, having regard to the advice of the Director, that neither negotiation nor mediation processes between the core parties have any prospect of success within a reasonable time, the Minister must, by notice in writing to all of the parties concerned, inform them:

                     (a)  that he or she is so satisfied; and

                     (b)  that formal negotiation and mediation processes are no longer available.

             (5)  A notification under subsection (3) or (4) brings all negotiation and mediation processes to an end whether or not the period for conducting those processes as set out in section 50 has expired.

54   Registration of agreements not concluded under the formal negotiation or mediation processes

             (1)  Despite that fact that, in relation to an application:

                     (a)  formal negotiation and mediation processes are no longer available (as a result of a notice under subsection 53(3) or (4)); or

                     (b)  such processes have never been undertaken;

the Director may, at any time, at the request of the applicant and other parties to an agreement relating to the area or object to which the application relates, register that agreement as if it were an agreement achieved as a result of formal negotiation or mediation processes facilitated by the Director under this Part.

             (2)  The Director must not register an agreement to which subsection (1) relates unless:

                     (a)  the Director is satisfied that the parties to the agreement included, or if negotiation or mediation processes had been undertaken would have included, the core parties within the meaning of section 49; and

                     (b)  the agreement is consistent with the purposes of this Act.

             (3)  The Director may register an agreement as a result of a request under subsection (1):

                     (a)  during the period when the Director is preparing a report in respect of the application concerned; or

                     (b)  during the period when an independent reviewer is preparing a report on any particular matter in relation to the application concerned; or

                     (c)  at any other time before the Minister has made a decision either to grant or refuse an LPO.

             (4)  If the Director decides to register an agreement obtained otherwise than as a result of formal negotiations under this Part, the effect of registration of that agreement is as set out in section 52.



 

Division 6 The making of reports

55   Procedures to be followed by Director in preparing report

             (1)  If:

                     (a)  the Director is required, under subsection 35(2), to make a report, in accordance with this Division, in respect of a UR application; and

                     (b)  the application relates to an area or object that is situated within the jurisdictional limits of a State or self-governing Territory; and

                     (c)  the Director, on examining the procedures followed by the State or Territory, or by an authority of the State or Territory, in making a finding:

                              (i)  that the area or object concerned is, or is not, in accordance with indigenous tradition, significant to the applicant; or

                             (ii)  the threat to the area or object concerned is, or is not under threat of injury or desecration;

                            is satisfied that the procedures followed were sufficient to provide a reliable basis for the finding;

the Director may, for the purpose of preparing his or her report, elect, in writing, to adopt the finding.

             (2)  The Director must, in respect of a UR application for which a report is required under Division 2, by notice published in a newspaper circulating in the region in which the area or object concerned is situated:

                     (a)  inform persons of particulars of the application in the same terms, and subject to the same limitations, as apply for the purposes of subsections 33(3) and (4); and

                     (b)  invite persons to make, within a period specified in the notice, representations in writing concerning:

                              (i)  if the Director has not elected to adopt the finding of the State or Territory or of an authority of the State or Territory in respect of the matter—the significance of the area or object concerned to the applicant; and

                             (ii)  if the Director has not elected to adopt the finding of the State or Territory or of an authority of the State or Territory in respect of the matter—the threat to the area or object concerned posed by any proposed activity; and

                            (iii)  the effect that the making of an LPO in respect of that area or object would have on the proprietary and pecuniary interests of persons other than the applicant.

             (3)  If, in relation to a UR application relating to an object, the Director is satisfied that public comment on the application would not be necessary or appropriate, the Director may prepare a report without giving public notice as required by subsection (2).

             (4)  If the Minister, in respect of an AR application, requires the Director to report on any matter or matters in accordance with subsection 41(1), the Director must, by notice published in a newspaper circulating in the region where the area or object concerned is situated:

                     (a)  inform persons of particulars of the application in the same terms, and subject to the same limitations, as apply for the purposes of subsections 33(3) and (4); and

                     (b)  invite persons to make, within a period specified in the notice, representations in writing concerning any or all of those matters.

             (5)  A notice under subsection (2) or (4) must also be accompanied by a statement of the kinds of matters that might be dealt with if an LPO is made in relation to the area or object concerned.

56   Procedures to be followed by independent reviewer in preparing a further report

             (1)  If, under Division 2 or 3, the Minister appoints an independent reviewer to prepare a further report in respect of a particular matter or matters in relation to an application, that reviewer may, having regard to the circumstances in which the further report has been required:

                     (a)  by notice in writing, request a person to give to the independent reviewer, within a period specified in the request, a submission, or an additional submission, in relation to that matter or any one or more of those matters; or

                     (b)  by notice published in a newspaper circulating in the region in which the area or object concerned is situated:

                              (i)  inform persons of particulars of the application in the same terms as are required for the purposes of subsections 33(3) and (4); and

                             (ii)  invite persons to make, within a period specified in the notice, representations in writing in relation to that matter or all or any of those matters.

             (2)  The notice should also be accompanied by a statement of the kinds of matters that might be dealt with if an LPO is made in relation to the area or object concerned.

57   Recognition of indigenous persons as the primary source of certain information

                   In reaching a finding as to the significance of an area or object to an applicant, the Director, and, where appropriate, an independent reviewer, must have regard to the principle that indigenous persons are the primary source of information about the significance of particular areas or objects in terms of indigenous traditions.

58   Independent reviewer has access to all correspondence with, and representations to, Director

             (1)  For the purpose of assisting an independent reviewer in the preparation of his or her further report in relation to an application, the Director must provide the independent reviewer with:

                     (a)  a copy of the application and of any additional information provided by the applicant; and

                     (b)  if the application relates to an area or object situated within the jurisdictional limits of a State or self-governing Territory—a copy of all correspondence entered into between the Director and any Minister, officer or authority of that State or Territory; and

                     (c)  a copy of all representations made to the Director, whether or not provided as a result of a public notice in relation to the application; and

                     (d)  a copy of any other written information obtained, and of any information reduced to writing, by the Director in relation to the application.

             (2)  An independent reviewer must:

                     (a)  in directly inviting any submission or additional submission from a person; or

                     (b)  in inviting submissions generally by public notice;

specify that all representations made to the Director will be treated by the independent reviewer as if they had been made to the independent reviewer but that that treatment does not prevent a person from making a further representation to the independent reviewer in accordance with the invitation.

59   No right to see representations of others

             (1)  A person making a representation to the Director or to an independent reviewer in response to an invitation under this Division is not entitled to see the application, any additional information provided by the applicant, or any other representation made to the Director or independent reviewer.

             (2)  A person making a representation to an independent reviewer in respect of a particular matter in response to an invitation under this Division is not entitled to see the application, any additional information provided by the applicant, or any representation made to the Director in respect of that matter.

60   Time limits for reports

             (1)  If the Director is required, under Division 2 or 3, to prepare a report for the Minister, the Director must give the report to the Minister as soon as practicable but:

                     (a)  if the report was required under Division 2—within 3 months; and

                     (b)  if the report was required under Division 3—within a period specified by the Minister;

after first becoming so required to prepare the report.

             (2)  If an independent reviewer is required, under Division 2 or 3, to prepare a report for the Minister on any matter or matters, the independent reviewer must give the Minister a report in relation to that matter or those matters as soon as practicable but within a period that is specified by the Minister.

             (3)  The Minister may, if, before the end of a period referred to in subsection (1) or (2), he or she considers it necessary to do so, by notice in writing given to the Director or independent reviewer preparing the report, extend the period for preparation of the report by such further period as is specified in the notice.

             (4)  A failure to submit a report to the Minister within the period referred to in subsection (1) or (2), or within that period as extended under subsection (3), does not invalidate the report.

61   Additional matters to be dealt with in reports

             (1)  If a report of the Director or of an independent reviewer is required to contain a finding as to:

                     (a)  the significance of an area or object to an applicant; or

                     (b)  the threat of injury or desecration posed to that area or object;

the report must set out the process followed in reaching, and the general reasons for, that finding.

             (2)  If a report of a Director is required to examine the effect that the making of an LPO will have upon proprietary and pecuniary interests of persons other than the applicant, the report must contain a summary of all representations received by the Director in relation to that matter.

             (3)  The obligation under subsection (1) to set out the general reasons for a finding is not to be taken, despite section 25D of the Acts Interpretation Act 1901 , to require the disclosure of confidential information.



 

Division 7 Emergency protection orders and interim protection orders

62   Making of EPOs

             (1)  The Minister may make an emergency protection order ( EPO ) under this subsection on the Minister’s initiative or on an application under subsection (2) in respect of an area or an object situated in Australia or in Australian waters.

             (2)  If an application for an LPO is rejected under subsection 31(1) because the Director is satisfied that the applicant has not exhausted the remedies available under the laws of the State or Territory concerned, the applicant may apply in writing to the Minister for an EPO under this subsection.

             (3)  The Minister may make an EPO if the Minister is satisfied that:

                     (a)  the area or object concerned appears to be a significant indigenous area or a significant indigenous object; and

                     (b)  the area or object appears to be under serious and immediate threat of injury or desecration; and

                     (c)  if the area or object is covered by an accredited heritage protection regime in force in a State or Territory in respect of the protection of the area or object—protection of the area or object may be in the national interest; and

                     (d)  if a person has applied for the EPO under subsection (2)—the protection under the EPO should be available before the person has exhausted the remedies under the laws of the State or Territory concerned.

             (4)  If:

                     (a)  apart from this subsection, paragraph (3)(c) would apply in relation to an area or object because of an accredited heritage protection regime that is in force in respect of the protection of the area or object; but

                     (b)  the Minister has given a notice under subsection 27(1) in respect of the regime and in respect of a matter that covers the protection of the particular area or object; and

                     (c)  the period of 90 days after the giving of the notice, or that period as extended under subsection 27(2), has not expired;

then, for the purpose of subsection (3), the accredited heritage protection regime is taken not to be in force in respect of the protection of that area or object and paragraph (3)(c) does not apply in relation to that area or object.

             (5)  An EPO (other than an EPO made on an application under subsection (2)) has effect for such period (not exceeding 7 days) as is specified in the order, commencing at the time the order is made.

             (6)  An EPO made on an application under subsection (2) has effect for such period as is specified in the order, commencing at the time the order is made.

             (7)  The Minister may, before the expiration of an EPO other than an EPO made on an application under subsection (2) (including such an EPO that has been extended because of an operation of this subsection), extend it for a period not exceeding 7 days.

             (8)  The Minister may, before the expiration of an EPO made on an application under subsection (2) (including such an EPO that has been extended because of an operation of this subsection), extend it for a specified period if the Minister is satisfied that the remedies under the laws of the State or Territory concerned still have not been exhausted and that it is appropriate that the EPO should continue to be in force.

             (9)  An EPO must:

                     (a)  describe the area or object with sufficient particulars to enable it to be identified; and

                     (b)  contain provisions in relation to the protection of the area or object and the preservation of the area or object from injury or desecration.

63   Making of IPOs

             (1)  The Minister may make an interim protection order ( IPO ) under this subsection in respect of an area or an object situated in Australia or in Australian waters.

             (2)  The Minister may make an IPO if:

                     (a)  a person or persons have made an application for an LPO in respect of an area or object but proceedings in relation to that application have not been completed; and

                     (b)  the Minister is satisfied that the application has, on its face, established that:

                              (i)  the area or object concerned is a significant indigenous area or a significant indigenous object; and

                             (ii)  the area or object is under serious threat of injury or desecration; and

                            (iii)  if the area or object is subject to an accredited heritage protection regime in force in a State or Territory in respect of the protection of the area or object—protection of the area or object is in the national interest.

             (3)  If:

                     (a)  apart from this subsection, subparagraph (2)(b)(iii) would apply in relation to an area or object because of an accredited heritage protection regime that is in force in respect of the protection of the area or object; but

                     (b)  the Minister has given a notice under subsection 27(1) in respect of the regime and in respect of a matter that covers the protection of the particular area or object; and

                     (c)  the period of 90 days after the giving of the notice, or that period as extended under subsection 27(2), has not expired;

then, for the purpose of subsection (2), the accredited heritage protection regime is taken not to be in force in respect of the protection of that area or object and subparagraph (2)(b)(iii) does not apply in relation to that area or object.

             (4)  An IPO has effect for such period (not exceeding 4 months) as is specified in the order, commencing at the time the order is made.

             (5)  The Minister may:

                     (a)  before the expiration of an IPO (other than an IPO that has been extended because of an operation of this subsection), extend it for a period not exceeding 3 months; and

                     (b)  before the expiration of an IPO that has been extended because of an operation of paragraph (a) or a previous operation of this paragraph, extend it for a further period not exceeding one month.

             (6)  An IPO must:

                     (a)  describe the area or object with sufficient particulars to enable it to be identified; and

                     (b)  contain provision in relation to the protection of the area or object and the preservation of the area or object from injury or desecration.

64   Notification of EPOs and IPOs

             (1)  The Minister must, as soon as practicable after making an EPO or IPO, take reasonable steps to give notice of the order to persons likely to be substantially affected by the order.

             (2)  An IPO must be published in the Gazette and in a local newspaper circulating in the region concerned.

             (3)  If an EPO or IPO is made by a person who has been delegated the power by the Minister to make the order, the person must, as soon as practicable after making the order, notify the Minister of:

                     (a)  the making of the order; and

                     (b)  the terms of the order; and

                     (c)  the reasons for which the order is made;

in such manner as the person thinks appropriate in the circumstances.

             (4)  Any failure to comply with subsection (1), (2) or (3) does not invalidate the order concerned.



 

Division 8 Multiple applications

65   Negotiation and mediation processes if more than one application

             (1)  If:

                     (a)  2 or more applications are received in relation to the same area, or in relation to overlapping areas, or in relation to the same object, because of threat from the same activity; and

                     (b)  the Director decides not to reject those applications under section 31;

the Director must, for the purposes of facilitating negotiation and mediation processes in respect of those applications, treat the applications as if they were a single application covering the area, or the total area, or the object, to which they relate with the objective of assisting the core parties to achieve an agreed outcome.

             (2)  For the purposes of conducting such negotiation or mediation processes under Division 5:

                     (a)  a reference in this Part to the application is a reference to all of the applications considered together; and

                     (b)  a reference in this Part to a core party includes a reference to all of the applicants; and

                     (c)  a reference in this Part to thearea concerned, or to the area to which the application relates, is a reference to the area to which all of the applications relate and includes, if the applications relate to overlapping areas, a reference to the area comprising all of those overlapping areas; and

                     (d)  a reference in this Part to theobject concerned, or to the object to which the application relates, is a reference to the object to which all the applications relate.

66   Making of an order if more than one application

             (1)  If:

                     (a)  2 or more applications are received in respect of the same area, or overlapping areas, or the same object, because of threat from the same activity; and

                     (b)  the Director decides not to reject those applications under section 31; and

                     (c)  those applications are not disposed of through the registration of an agreement under Division 5;

the Minister must make, or refuse to make, a single order in respect of the area (which may be an area comprising overlapping areas), or the object, to which all of the applications relate.

             (2)  For the purposes of assisting the Minister in determining whether or not to make an order under subsection (1), if the applications are UR applications:

                     (a)  sections 35, 36 and 37 apply separately in relation to each such application; and

                     (b)  if the Minister is bound by findings of the kind referred to in paragraphs 38(a) and (b) in relation to an area or object to which more than one of the applications relate (the relevant applications )—the Minister may, under section 38, having regard to the matters referred to in that section in respect of each of the relevant applications, ensure that the order contains provision for the protection and preservation of the area, or the total area, or the object, to which the relevant applications relate.

             (3)  For the purposes of deciding whether or not to make an order in the circumstances referred to in subsection (1), if the applications are AR applications:

                     (a)  sections 39, 40, 41, 43 and 44 apply in relation to each such application; and

                     (b)  if the Minister is bound by findings of the kind referred to in paragraphs 45(a) and (b) in relation to an area or object to which more than one of the applications relate (the relevant applications )—the Minister may, under that section, having regard to the matters referred to in section 45 in respect of each of the relevant applications, ensure that the order contains provision for the protection and preservation of the area, or the total area, or the object, to which the relevant applications relate.