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Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

Part 5 Miscellaneous provisions

Division 1 Indigenous human remains

67   Discovery of indigenous human remains

             (1)  A person is guilty of an offence if:

                     (a)  the person discovers, in a place situated in Australia or Australian waters, objects that are indigenous human remains; and

                     (b)  at the time of the discovery there is no accredited heritage protection regime in relation to the reporting of indigenous human remains in force at the place where the remains are discovered; and

                     (c)  the person fails to report the discovery, or to give particulars of the remains and of their location, to the Director as soon as practicable after the discovery.

Maximum penalty:    10 penalty units.

             (2)  An offence against subsection (1) is a strict liability offence.

             (3)  Chapter 2 of the Criminal Code applies to an offence against subsection (1).

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

             (4)  Subsection (1) does not apply to a person if:

                     (a)  the person is an indigenous person; and

                     (b)  the person’s compliance with subsection (1) would be contrary to his or her indigenous traditions.

             (5)  If the Director:

                     (a)  receives a report referred to in subsection (1); and

                     (b)  is satisfied that the report relates to indigenous human remains;

the Director must take reasonable steps to consult with any indigenous persons whom the Director considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to them.

68   Disposal of indigenous human remains

             (1)  This section applies to indigenous human remains:

                     (a)  discovered at a place situated in Australia or Australian waters where there is no accredited heritage protection regime in relation to the protection of indigenous human remains; and

                     (b)  delivered to the Director.

             (2)  The Director must:

                     (a)  return 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 deal 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—transfer the remains to a prescribed authority for safekeeping.

             (3)  Nothing in this section is to be taken to derogate from the right of any indigenous person or indigenous persons accepting possession, custody or control of any indigenous human remains under this section to deal with the remains in accordance with indigenous tradition.

Note:          The Minister may also make provisions in relation to indigenous human remains in an LPO under Part 4. See in particular subsection 46(4).



 

Division 2 Offences

69   Offences in relation to protection orders

             (1)  A person is guilty of an offence if the person contravenes a provision of a protection order in respect of an area.

Maximum penalty:    Imprisonment for 5 years.

             (2)  A person is guilty of an offence if the person contravenes a provision of a protection order in respect of an object.

Maximum penalty:    Imprisonment for 2 years.

             (3)  Chapter 2 of the Criminal Code applies to an offence against subsection (1) or (2).

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

70   Evidence

             (1)  This section applies in relation to proceedings for:

                     (a)  an offence against subsection 69(1) or (2); or

                     (b)  an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 that relates to an offence referred to in paragraph (a).

             (2)  A defendant must not be committed for trial or convicted in proceedings to which this section applies if there is evidence that, at the time the offence is alleged to have been committed, the defendant did not know of the existence of the protection order alleged to have been contravened.

71  Conduct by directors, employees and agents

             (1)  This section applies for the purposes of a prosecution for:

                     (a)  an offence created by a provision in this Act or the regulations; or

                     (b)  an offence created by section 5, 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 that relates to an offence referred to in paragraph (a).

             (2)  If it is necessary to prove the state of mind of a body corporate in relation to particular conduct, it is enough to show:

                     (a)  that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

                     (b)  that the director, employee or agent had the state of mind.

             (3)  If:

                     (a)  conduct is engaged in on behalf of a body corporate by a director, employee or agent of the body corporate; and

                     (b)  the conduct is within the scope of his or her actual or apparent authority;

the conduct is taken, for the purposes of the prosecution of an offence against this Act, to have been engaged in by the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

             (4)  If it is necessary to establish the state of mind of an individual in relation to particular conduct, it is enough to show:

                     (a)  that the conduct was engaged in by an employee or agent of the individual within the scope of his or her actual or apparent authority; and

                     (b)  that the employee or agent had the state of mind.

             (5)  If:

                     (a)  conduct is engaged in on behalf of an individual by an employee or agent of the individual; and

                     (b)  the conduct is within the scope of his or her actual or apparent authority;

the conduct is taken, for the purposes of the prosecution of an offence referred to in subsection (1), to have been engaged in also by the individual, unless the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

             (6)  If:

                     (a)  an individual is convicted of an offence referred to in subsection (1); and

                     (b)  the individual would not have been convicted of the offence if subsections (4) and (5) had not been enacted;

the individual is not liable to be punished by imprisonment for that offence.

             (7)  In this section:

director , in relation to a body that:

                     (a)  is incorporated for a public purpose by a law of the Commonwealth, a State or a Territory; and

                     (b)  is constituted by one or more members;

means the member, or any of the members, constituting the body.

engage in conduct includes fail or refuse to engage in conduct.

state of mind , in relation to a person, includes:

                     (a)  the person’s knowledge, intention, opinion, belief or purpose; and

                     (b)  the person’s reasons for the intention, opinion, belief or purpose.



 

Division 3 Administrative review of certain decisions

72   Review by the Administrative Appeals Tribunal of decision to reject vexatious application etc.

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a decision under subsection 32(1) to reject an application.

             (2)  In this section:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 .



 

Division 4 Power of courts and of the Administrative Appeals Tribunal etc.

73   Exclusion of the public or persons from certain proceedings etc.

             (1)  In this section:

proceedings means:

                     (a)  any proceedings in a court:

                              (i)  arising under or in relation to this Act; or

                             (ii)  in which information collected or provided for the purposes of this Act is being sought or

                     (b)  any proceedings before the Administrative Appeals Tribunal under section 72.

             (2)  In any proceedings conducted by a court or the Tribunal, the court or the Tribunal may, on application by a party to the proceedings:

                     (a)  order the exclusion of the public, or specified persons, from a sitting of the court or Tribunal; or

                     (b)  make any other order;

for the purposes of preventing or limiting the disclosure of information with respect to the proceedings.

             (3)  Without limiting subsection (2), a reference to information in that subsection includes a reference to:

                     (a)  information pertaining to indigenous traditions; or

                     (b)  information pertaining to particular commercial interests.

             (4)  When making an order under subsection (2), the court or the Tribunal must have regard to:

                     (a)  the interests of justice; and

                     (b)  where appropriate—the interests of indigenous traditions and any relevant commercial interests.

             (5)  This section does not affect the power of a court or the Tribunal, in conducting any proceedings, to admit or refuse to admit particular evidence for the purposes of the proceedings. In particular, this section does not limit the operation of section 74.

74   Public interest immunity in relation to certain information

             (1)  In this section, proceedings has the same meaning as in section 73.

             (2)  If, during any proceedings, a party to the proceedings seeks the disclosure of information:

                     (a)  that pertains to indigenous traditions; and

                     (b)  the disclosure of which will be contrary to indigenous traditions;

the person holding the information may, by application to the court or the Tribunal conducting the proceedings, claim an immunity from the obligation to disclose the information on the ground that the disclosure will not be in the public interest.

             (3)  If immunity from the obligation to disclose information is claimed in proceedings before a court or the Tribunal—the court or the Tribunal may require the information to be disclosed for the purposes of the proceedings only if it has been shown to the satisfaction of the court or Tribunal that, on balance, the public interest in the administration of justice to disclose the information outweighs the public interest to protect the information.

             (4)  Nothing in this section prevents a court or the Tribunal, in conducting proceedings:

                     (a)  if the information in respect of which immunity is claimed is contained in a document—from inspecting the document; and

                     (b)  if the information in respect of which immunity is claimed is not in a document—from hearing, in the presence only of the party claiming immunity, particulars of the oral evidence relating to that information;

before deciding whether the information should be disclosed for the purposes of the proceeding.

75   Injunctions

             (1)  If, on the Commonwealth Minister’s application, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

                     (a)  a contravention of a provision of a protection order; or

                     (b)  attempting to contravene such a provision; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene such a provision; or

                     (d)  inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

                      (f)  conspiring with others to contravene such a provision;

the Court may grant an injunction in such terms as the Court determines to be appropriate.

             (2)  The Court may grant an interim injunction pending determination of an application under subsection (1) if the Court is of the opinion that it is desirable to do so.

             (3)  The Court may rescind or vary an injunction under subsection (1) or (2).

             (4)  The Court’s power to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area or object if the person engages in conduct of that kind.

             (5)  The Court’s power to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the person has previously refused or failed to do that act or thing; and

                     (c)  whether or not there is a serious and immediate threat of injury to, or desecration of, the relevant area or object if the person refuses or fails to do that act or thing.

76   Powers of courts and Administrative Appeals Tribunal not limited

                   Nothing in this Act limits or restricts any powers conferred on a court, or on the Administrative Appeals Tribunal, by any other law.



 

Division 5 Other matters

77   Disallowable instruments

             (1)  Subject to subsections (2) and (3), the following are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 :

                     (a)  a written notice under subsection 25(1) in respect of the accreditation of the laws of a State or Territory in respect of a particular matter or matters;

                     (b)  a written notice under subsection 27(2) varying or revoking the accreditation of the laws of a State or Territory in respect of a particular matter or matters;

                     (c)  an LPO under Part 4 or a variation or revocation of an LPO under Part 4.

             (2)  If the Legislative Instruments Act 1998 commences before the commencement day in relation to an instrument referred to in paragraph (1)(a), (b) or (c), then, despite subsection (1), that instrument is declared to be a disallowable non-legislative instrument for the purposes of section 46B of the Acts Interpretation Act 1901 .

             (3)  If the Legislative Instruments Act 1998 commences after the commencement day in relation to an instrument referred to in paragraph (1)(a), (b) or (c), then, with effect from the commencement of that Act:

                     (a)  despite the operation of that Act, the instrument does not become a legislative instrument; and

                     (b)  the instrument is declared to be a disallowable non-legislative instrument for the purposes of section 46B of the Acts Interpretation Act 1901 ; and

                     (c)  if the instrument was laid before either House of the Parliament in accordance with the requirements of section 46A of the Acts Interpretation Act 1901 —the instrument is taken to have been so laid for the purposes of section 46B of the Acts Interpretation Act 1901 ; and

                     (d)  section 46B of the Acts Interpretation Act 1901 applies in relation to the instrument as if it had been in force at the time when the instrument was made and as if any action taken in the Parliament in relation to the instrument had been so taken in relation to the instrument as a disallowable non-legislative instrument.

             (4)  In this section:

commencement day means:

                     (a)  in relation to an instrument referred to in paragraph (1)(a) or (b)—the day fixed by Proclamation for the commencement of Part 3; and

                     (b)  in relation to an instrument referred to in paragraph (1)(c)—the day fixed by Proclamation for the commencement of Part 4.

78   Compensation for acquisition of property

             (1)  If:

                     (a)  apart from this section, the operation of a provision of this Act would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (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 for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

79   Legal or financial assistance

             (1)  This section applies to a person:

                     (a)  who wishes to apply for a protection order; or

                     (b)  who considers that his or her proprietary or pecuniary interests:

                              (i)  are likely to be adversely affected by a proposed protection order; or

                             (ii)  are adversely affected by a protection order; or

                     (c)  against whom proceedings have been instituted:

                              (i)  for an offence referred to in subsection 71(1); or

                             (ii)  under section 75.

             (2)  A person to whom this section applies may apply to the Attorney-General for assistance under this section.

             (3)  An authorised person may, subject to any conditions as the authorised person determines, authorise the Commonwealth’s grant to a person applying under subsection (2) of such legal or financial assistance as the authorised person determines.

             (4)  An authorised person must not authorise the grant of assistance unless he or she is satisfied that:

                     (a)  it would involve hardship to the applicant if the application is refused; and

                     (b)  in all the circumstances, it is reasonable that the application should be granted.

             (5)  In this section:

authorised person means:

                     (a)  the Attorney-General; or

                     (b)  an officer of the Australian Public Service authorised in writing by the Attorney-General under this section.

80   Delegation

             (1)  Subject to subsection (3), the Minister may, by written instrument, delegate to the Director any of his or her powers under this Act.

             (2)  The Minister may also, by written instrument, delegate to a person who holds or performs the duties of a Senior Executive Service office under the Public Service Act 1922 the Minister’s powers in relation to an EPO (other than the Minister’s power to make an EPO under subsection 62(2)).

             (3)  The Minister must not delegate to the Director his or her powers in relation to the following matters:

                     (a)  the Minister’s powers in relation to the accreditation of the laws of a State or Territory as an accredited heritage protection regime under Part 3;

                     (b)  the Minister’s power to appoint an independent reviewer under section 36 or 43;

                     (c)  the Minister’s power to reject an application under subsection 39(2);

                     (d)  the Minister’s powers in relation to an LPO;

                     (e)  the Minister’s powers under subsection 62(2).

81   Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.