Loi de 1984 sur la protection des Aborigènes d'Australie et les indigènes du Détroit de Torres (version consolidée du 7 juillet 2008), Australie

Australian waters means:

(a)

the territorial sea of Australia and any sea on the landward side of that territorial sea;

(b)

the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or

(c)

the sea over the continental shelf of Australia.

Federal Court means the Federal Court of Australia.

significant Aboriginal area means:

(a)

an area of land in Australia or in or beneath Australian waters;

(b)

an area of water in Australia; or

(c)

an area of Australian waters;

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:

(a)

in the case of an area:

(i)

it is used or treated in a manner inconsistent with Aboriginal tradition;

(ii)

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

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

(b)

in the case of an object—it is used or treated in a manner

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.

16 Refusal to make declaration

Where the Minister refuses to make a declaration under this Division in pursuance of an application, he or she shall take

Section 16

reasonable steps to notify the applicant or applicants of his or her decision.

Section 17

Division 2—Declarations by authorized officers

17 Authorised officers

(1)

The Minister may, by instrument in writing, designate persons to be authorized officers for the purposes of this Division.

(2)

The Minister shall cause to be issued to each authorized officer an identity card in the form prescribed, containing a photograph of the officer.

(3)

Where an authorized officer notifies a person of a declaration made under section 18, he or she shall:

(a)

if it is reasonably practicable to do so—produce his or her identity card for inspection by that person; or

(b)

in any other case—give that person such particulars of his or her identity card as are prescribed.

(4)

A person who ceases to be an authorized officer shall forthwith return his or her identity card to the Minister.

18 Emergency declarations in relation to areas or objects

(1) Where:

(a)

at any time, an authorized officer is satisfied that:

(i)

an area is a significant Aboriginal area, an object is a significant Aboriginal object or a class of objects is a class of significant Aboriginal objects;

(ii)

the area or object is, or objects are, under serious and immediate threat of injury or desecration; and

(iii) in the case of an area—the circumstances of the case would justify the making of a declaration under section 9, but the injury or desecration is likely to occur before such a declaration can be made; and

(b)

no declaration has been made under this section in relation to the area, object or objects within 3 months before that time by reason of a threat that is substantially the same as the threat referred to in subparagraph (a)(ii);

the officer may make a declaration for the purposes of this section.

Section 19

(2) A declaration under subsection (1):

(a)

shall be in writing;

(b)

shall specify the period, not exceeding 48 hours, for which it is to remain in effect;

(c)

shall:

(i)

where the declaration relates to an area—describe the area with sufficient particulars to enable the area to be identified; or

(ii)

where the declaration relates to an object or a class of objects—describe the object or objects with sufficient particulars to enable the object or objects to be identified; and

(d)

shall contain provisions for and in relation to the protection and preservation of the area, object or objects from injury or desecration, including, in the case of Aboriginal remains, provisions for their custody.

(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.

19 Notification of declarations

(1)

An authorized officer shall, as soon as practicable after making a declaration under section 18:

(a)

in such manner as he or she thinks appropriate in the circumstances, notify the Minister of the making of the declaration, the terms of the declaration and the reasons for which it was made; and

(b)

take reasonable steps to give notice of the declaration to persons likely to be substantially affected by the declaration.

(2)

Any failure to comply with subsection (1) does not invalidate a declaration.

Section 20

Division 3—Discovery and disposal of Aboriginal remains

20 Discovery of Aboriginal remains

(1)

A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.

(2)

Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.

21 Disposal of Aboriginal remains

(1)

Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:

(a)

return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;

(b)

otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or

(c)

if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.

(2)

Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.

Part III—Offences, penalties and legal proceedings

22 Offences and penalties

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

(a)

the person engages in conduct; and

(b)

the conduct contravenes a provision of a declaration made under Part II in relation to a significant Aboriginal area.

Penalty:

(a)

if the person is a natural person—$10,000 or imprisonment for 5 years, or both; or

(b)

if the person is a body corporate—$50,000.

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

(a)

the person engages in conduct; and

(b)

the conduct contravenes the terms of a declaration under this Part relating to a significant Aboriginal object or significant Aboriginal objects.

Penalty:

(a)

if the person is a natural person—$5,000 or imprisonment for 2 years, or both; or

(b)

if the person is a body corporate—$25,000.

(3)

A person who contravenes subsection 20(1) is guilty of an offence punishable, on conviction, by a fine not exceeding $500.

(4)

A person who contravenes subsection 17(4) is guilty of an offence punishable, on conviction, by a fine not exceeding $100.

(5)

In this section:

engage in conduct means:

(a)

do an act; or

(b)

omit to perform an act.

23 Indictable offences

(1) Subject to subsection (2), the following offences are indictable offences:

(a)

an offence referred to in subsection 22(1) or (2);

(b)

an offence against:

(i)

section 6 of the Crimes Act 1914; or

(ii)

section 11.1, 11.4 or 11.5 of the Criminal Code;

in relation to an offence referred to in paragraph (a) of this subsection.

(2)

A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(3)

Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is:

(a)

if the person is a natural person—a fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months, or both; or

(b)

if the person is a body corporate—a fine not exceeding $10,000.

24 Evidence

(1)

In any proceedings for an offence referred to in subsection 23(1), the proof of a declaration made under Part II in relation to an area, object or objects is prima facie evidence that the area is a significant Aboriginal area, the object is a significant Aboriginal object or the objects are significant Aboriginal objects, as the case may be.

(2)

For the purposes of subsection (1), a declaration made by the Minister under Part II may be proved by the production of the Gazette purporting to contain it.

(3)

In proceedings for an offence referred to in subsection 23(1), where there is evidence that, at the relevant time, the defendant neither knew, nor had reasonable grounds for knowing, of the existence of the declaration alleged to have been contravened, the

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.

25 Body corporate responsible for acts of servants and agents

(1) Where, at a particular time, a member of the governing body, director, servant or agent of a body corporate:

(a)

intends to do, or not to do, a particular act; or

(b)

knows, or ought reasonably to know, of the existence of a

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.

(2)

Any conduct engaged in on behalf of a body corporate by a member of the governing body, director, servant or agent of the body corporate, or by any other person at the direction or with the consent or agreement (whether express or implied) of one of the first-mentioned persons, shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

(3)

In subsection (2), a reference to engaging in conduct is a reference to doing, or failing or refusing to do, any act or thing.

(4)

In relation to a body corporate that does not have a governing body, a reference in this section to a member of the governing body is a reference to a member of the body corporate.

26 Injunctions

(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:

(a)

a contravention of a provision of a declaration made under Part II;

(b)

attempting to contravene such a provision;

(c)

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

(d)

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

(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)

Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

(3)

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

(4)

The power of the Court 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;

(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, place, object or objects, as the case may be, if the person engages in conduct of that kind.

(5)

The power of the Court 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;

(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, place, object or objects, as the case may be, if the person refuses or fails to do that act or thing.

27 Proceedings in camera

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.

28 Compensation for acquisition of property

(1)

Where, but for this section, the operation of a provision of this Act or of a declaration made under Part II would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.

(2)

In subsection (1), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.

29 Powers of courts not limited

Nothing in this Act shall be taken to limit or restrict any powers conferred on a court by any other law.

30 Legal assistance

(1) A person:

(a)

who wishes to apply for a declaration under section 9, 10 or 12;

(b)

who considers that his or her proprietary or pecuniary interests:

(i)

are likely to be adversely affected by a declaration proposed to be made under section 9, 10, 12 or 18; or

(ii)

are adversely affected by a declaration so made; or

(c)

against whom proceedings have been instituted:

(i)

for an offence referred to in subsection 23(1); or

(ii)

under section 26;

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

31 Delegation

(1)

The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers and functions under this Act (other than sections 9, 10 and 12, subsection 13(2) and section 26), the regulations, or a declaration, other than this power of delegation.

(2)

A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, the regulations or the declaration, as the case may be, be deemed to have been exercised or performed by the Minister.

(3)

A delegation under this section does not prevent the exercise of a power or performance of a function by the Minister.

(4)

In this section, declaration means a declaration made under Part II.

32 Regulations

The Governor-General may make regulations, not inconsistent with this Act, 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.

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 and year	Date of Assent	Date of commencement	Application, 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	—

Act Notes

(a)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was amended by Schedule 5 (items 1-3) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows:

(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

(b)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was amended by Schedule 1 (items 20 and 21) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

(1)

In this Act, commencing time means the time when the Public Service Act 1999 commences.

(2)

Subject to this section, this Act commences at the commencing time.

(c)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was amended by Schedule 1 (items 1-11) only of the Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(c) of which provides as follows:

(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

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

(1)

Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

(2)

For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

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.