This compilation was prepared on 14 December 2010 taking into account amendments up to Act No. 139 of 2010
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra
Part I—Preliminary 1 1 Short title [see Note 1].......................................................................1 2 Commencement [see Note 1].............................................................1 3 Interpretation.....................................................................................1 4 Purposes of Act .................................................................................3 5 Extension to Territories.....................................................................3 6 Act binds the Crown..........................................................................3 6A Application of the Criminal Code .....................................................3 7 Application of other laws ..................................................................3 8 Application of Act.............................................................................4
Part II—Protection of significant Aboriginal areas and objects 5
Division 1—Declarations by Minister 5 9 Emergency declarations in relation to areas ......................................5 10 Other declarations in relation to areas ...............................................5 11 Contents of declarations under section 9 or 10..................................7 12 Declarations in relation to objects .....................................................7 13 Making of declarations......................................................................8 14 Publication and commencement of declarations................................9 16 Refusal to make declaration...............................................................9
Division 2—Declarations by authorized officers 10 17 Authorised officers..........................................................................10 18 Emergency declarations in relation to areas or objects....................10 19 Notificationof declarations.............................................................11
Division 3—Discovery and disposal of Aboriginal remains 12 20 Discovery of Aboriginal remains.....................................................12 21 Disposal of Aboriginal remains.......................................................12
Part III—Offences, penalties and legal proceedings 13 22 Offences and penalties.....................................................................13 23 Indictable offences...........................................................................14 24 Evidence..........................................................................................14 25 Body corporate responsible for acts of servants and agents.............15 26 Injunctions.......................................................................................15 27 Proceedings in camera.....................................................................17 28 Compensation for acquisition of property .......................................17 29 Powers of courts not limited............................................................17 30 Legal assistance...............................................................................17
Part IV—Miscellaneous 19 31 Delegation .......................................................................................19
32 Regulations......................................................................................19 Notes 20
An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes
This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
This Act shall come into operation on the day on which it receives the Royal Assent.
(1) In this Act, unless the contrary intention appears:
Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.
Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
area includes a site.
Federal Court means the Federal Court of Australia.
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.
significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.
(2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
inconsistent with Aboriginal tradition; and references in this Act to injury or desecration shall be construed accordingly.
(3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.
The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
This Act extends to every external Territory.
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.
6A Application of the Criminal Code
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
(4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.
Section 9
Part II—Protection of significant Aboriginal areas and objects
Division 1—Declarations by Minister
(1) Where the Minister:
desecration; he or she may, by legislative instrument, make a declaration in relation to the area.
10 Other declarations in relation to areas
(1) Where the Minister:
(i) that the area is a significant Aboriginal area; and Section 10
(ii) that it is under threat of injury or desecration;
relevant; he or she may, by legislative instrument, make a declaration in relation to the area.
Section 11
11 Contents of declarations under section 9 or 10
A declaration under subsection 9(1) or 10(1) in relation to an area shall:
12 Declarations in relation to objects
(1) Where the Minister:
relevant; he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.
(2) Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.
Section 13
(3) A declaration under subsection (1) in relation to an object or objects shall:
(3A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.
(4) A declaration under subsection (1) in relation to Aboriginal remains may include provisions ordering the delivery of the remains to:
13 Making of declarations
14 Publication and commencement of declarations
Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take reasonable steps to notify the applicant or applicants of his or her decision.
Section 17
Division 2—Declarations by authorized officers
(1) Where:
the officer may make a declaration for the purposes of this section.
Section 19
(2) A declaration under subsection (1):
(2A) A declaration under subsection (1) cannot prevent the export of an object if there is a certificate in force under section 12 of the Protection of Movable Cultural Heritage Act 1986 authorising its export.
(2B) A declaration under subsection (1) is not a legislative instrument.
(3) A declaration under subsection (1) may be revoked or varied at any time, by instrument in writing, by the Minister or any authorized officer.
Section 20
Division 3—Discovery and disposal of Aboriginal remains
Part III—Offences, penalties and legal proceedings
(1) A person is guilty of an offence if:
Penalty:
(2) A person is guilty of an offence if:
Penalty:
engage in conduct means:
(1) Subject to subsection (2), the following offences are indictable offences:
in relation to an offence referred to in paragraph (a) of this subsection.
defendant shall not be committed for trial or convicted unless the prosecution proves that, at that time, the defendant knew, or ought reasonably to have known, of the existence of the declaration.
(1) Where, at a particular time, a member of the governing body, director, servant or agent of a body corporate:
declaration made under Part II; paragraph (a) or (b), as the case may be, shall be deemed to apply to the body corporate at that time.
(1) Where, on the application of the Minister, the Federal Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
the Court may grant an injunction in such terms as the Court determines to be appropriate.
In any proceedings in a court arising under this Act, the court, on application, may, if it is satisfied that it is desirable to do so, having regard to:
(a) the interests of justice; and
(b) the interests of Aboriginal tradition; order the exclusion of the public, or of persons specified in the order, from a sitting of the court and make such orders as it thinks
fit for the purpose of preventing or limiting the disclosure of information with respect to the proceedings.
Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.
(1) A person:
may apply to the Attorney-General for a grant of assistance under subsection (2).
(2) Where an application is made by a person under subsection (1), the Attorney-General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney-General, may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the grant by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney-General or public servant determines, of such legal or financial assistance as the Attorney-General or public servant determines.
Part IV—Miscellaneous
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
Table of Acts
Notes to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Note 1
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as shown in this compilation comprises Act No. 79, 1984 amended as indicated in the Tables below.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was amended by the Aboriginal and Torres Strait Islander Heritage Protection Regulations (Amendment). The amendments are incorporated in this compilation.
For all relevant information pertaining to application, saving or transitional provisions see Table A.
Table of Acts
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional |
provisions | ||||
Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 | 79, 1984 | 25 June 1984 | 25 June 1984 | |
Aboriginal and Torres Strait Islander Heritage (Interim Protection) Amendment Act 1986 | 83, 1986 | 24 June 1986 | 24 June 1986 | — |
Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 | 39, 1987 | 5 June 1987 | 10 July 1987 (see Gazette 1987, No. S171) | — |
Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act 1988 | 99, 1988 | 2 Dec 1988 | 2 Dec 1988 | — |
Aboriginal and Torres Strait Islander Commission Act 1989 | 150, 1989 | 27 Nov 1989 | 5 Mar 1990 (see Gazette 1990, No. S48) | — |
Statute Law Revision Act 1996 | 43, 1996 | 25 Oct 1996 | Schedule 5 (items 1–3): Royal Assent (a) | — |
Table of Acts
Act | Number | Date | Date of | Application, |
and year | of Assent | commencement | saving or transitional | |
provisions | ||||
Public Employment (Consequential and Transitional) Amendment Act 1999 | 146, 1999 | 11 Nov 1999 | Schedule 1 (items 20, 21): 5 Dec 1999 (see Gazette 1999, No. | — |
S584) (b) | ||||
Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001 | 15, 2001 | 22 Mar 2001 | Schedule 1 (items 1–11): 24 May 2001 (c) | S. 4 |
Aboriginal and Torres Strait Islander Commission Amendment | 32, 2005 | 22 Mar 2005 | Schedule 4 (items 1, 2): 24 Mar 2005 | Sch. 4 (item 2) |
Act 2005 | ||||
Aboriginal and Torres Strait Islander Heritage Protection Amendment | 152, 2006 | 7 Dec 2006 | Schedule 1: 8 Dec 2006 Schedule 2: | — |
Act 2006 | 28 May 2007 (see F2007L01489) Remainder: Royal Assent | |||
Statute Law Revision Act 2008 | 73, 2008 | 3 July 2008 | Schedule 1 (item 1): Royal Assent | — |
Territories Law Reform Act | 139, 2010 | 10 Dec 2010 | Schedule 1 | — |
2010 | (item 61): 11 Dec 2010 |
Act Notes
(1) Subject to this section, this Act commences on the latest of the following days:
(c) the day on which item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.
Table of Amendments
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected How affected
Title ........................................... am. No. 83, 1986
Part I
S. 1............................................ am. No. 83, 1986
S. 6A ......................................... ad. No. 15, 2001
S. 7............................................ am. No. 39, 1987; No. 43, 1996; No. 15, 2001; No. 152, 2006
S. 8A ......................................... ad. No. 39, 1987 rep. No. 152, 2006
Part II Division 1
Ss. 9, 10 .................................... am. No. 43, 1996; No. 152, 2006
S. 12.......................................... am. No. 43, 1996; No. 152, 2006
S. 13.......................................... am. No. 43, 1996; No. 139, 2010
S. 14.......................................... am. No. 152, 2006
S. 15.......................................... am. No. 99, 1988 rep. No. 152, 2006
S. 16.......................................... am. No. 43, 1996
Division 2
S. 17.......................................... am. No. 43, 1996
S. 18.......................................... am. No. 152, 2006; No. 73, 2008
S. 19.......................................... am. No. 43, 1996
Division 3
Ss. 20, 21 .................................. am. No. 39, 1987; No. 43, 1996; No. 152, 2006
Part IIA ..................................... ad. No. 39, 1987 rep. No. 152, 2006
S. 21A ....................................... ad. No. 39, 1987 rep. No. 152, 2006
S. 21B ....................................... ad. No. 39, 1987 am. No. 150, 1989; No. 32, 2005 rep. No. 152, 2006
Ss. 21C–21E ............................. ad. No. 39, 1987 rep. No. 152, 2006
S. 21EA ..................................... ad. No. 152, 2006 rep. No. 152, 2006
S. 21F........................................ ad. No. 39, 1987 rep. No. 152, 2006
S. 21G ....................................... ad. No. 39, 1987 am. No. 15, 2001 rep. No. 152, 2006
S. 21H ....................................... ad. No. 39, 1987 rs. No. 15, 2001 rep. No. 152, 2006
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected How affected
Ss. 21J–21N.............................. ad. No. 39, 1987 rep. No. 152, 2006
Ss. 21P, 21Q............................. ad. No. 39, 1987 rep. No. 152, 2006
Ss. 21R–21T ............................. ad. No. 39, 1987 rep. No. 152, 2006
S. 21U ....................................... ad. No. 39, 1987 am. No. 15, 2001 rep. No. 152, 2006
Ss. 21V–21X ............................. ad. No. 39, 1987 rep. No. 152, 2006
S. 21Y ....................................... ad. No. 39, 1987 am. No. 15, 2001 rep. No. 152, 2006
S. 21Z........................................ ad. No. 39, 1987 rep. No. 152, 2006
S. 21ZA ..................................... ad. No. 39, 1987 rep. No. 152, 2006
Part III
S. 22.......................................... am. No. 15, 2001
S. 23.......................................... am. No. 15, 2001 Ss. 25–28 .................................. am. No. 39, 1987; No. 152, 2006
S. 30.......................................... am. No. 39, 1987; No. 43, 1996; 146, 1999; No. 152, 2006
Part IV
S. 31.......................................... am. No. 39, 1987; No. 43, 1996; No. 152, 2006
S. 33.......................................... rep. No. 83, 1986
Schedule ................................... ad. No. 39, 1987 am. Statutory Rules 1987 No. 153; 1989 No. 420; 1992 No. 121; 1994 No. 28 rep. No. 152, 2006
Table A
Table A
Application, saving or transitional provisions
Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001 (No. 15, 2001)
4 Application of amendments
Aboriginal and Torres Strait Islander Commission Amendment Act 2005
(No. 32, 2005)
Schedule 4
2 Saving provision
Despite the amendment of section 21B of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, any delegation by the Minister to an officer of the Department that was in force under that section immediately before the day Schedules 1 and 2 to this Act commence continues in force on and after that day as if it were a delegation made by the Minister under that section as amended by this Act.