581069exi1 - Victorian Legislation and Parliamentary Documents

Aboriginal Heritage Amendment Bill

2015

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Clause 1 sets out the purposes of the Bill. These include a purpose to amend the Aboriginal Heritage Act 2006 (the Principal Act) to improve the reporting requirements in relation to Aboriginal cultural heritage, to include provisions regarding Aboriginal intangible heritage, and to establish an Aboriginal Cultural

Heritage Fund. Certain other Acts are also amended to provide for the further protection of Aboriginal cultural heritage.

Clause 2 is the commencement provision. The provisions of the Bill will come into operation on a day or days to be proclaimed. If a provision of this Bill does not come into operation before

1 August 2016, it comes into operation on that day.

Clause 3 inserts additional purposes to section 1 of the Principal Act.

The Act provides for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria. The Bill inserts the additional purposes into the Principal Act. These are to empower traditional owners to be the protectors of Aboriginal cultural heritage on behalf of all people, to strengthen the ongoing right to maintain the distinctive spiritual, material and economic relationship of traditional owners with the land and waters and other resources for which they have a connection under traditional laws and customs, and to promote respect for

Aboriginal cultural heritage.

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BILL LA INTRODUCTION 10/11/2015

Clause 4 amends section 3(c) of the Principal Act to replace the terminology of "Aboriginal people with traditional or familial links with Aboriginal cultural heritage" with "traditional owners" to better reflect the common use of the latter term. The intent is to accord appropriate status to traditional owners and to affirm the intention for the Victorian Aboriginal Heritage Council to only appoint bodies corporate representative of traditional owners as registered aboriginal parties.

Clause 5 inserts new definitions and amends some existing definitions in section 4 of the Principal Act. The main amendments are as follows.

Aboriginal ancestral remains replaces Aboriginal human remains . While the definition remains substantively similar, the amendment to Aboriginal ancestral remains is intended to promote greater respect for this culturally sensitive material.

The Principal Act is so amended throughout.

Aboriginal Cultural Heritage Fund , Aboriginal cultural heritage land management agreement , Aboriginal heritage officer , Aboriginal intangible heritage , Aboriginal intangible heritage agreement , preliminary Aboriginal heritage test ,

24-hour stop order and traditional owner are new definitions which will be explained further in their respective clauses below. authorised officer replaces inspector in the Principal Act.

Catchment Management Authority, committee of management,

Executive Director of Heritage Victoria, municipal council,

Parks Victoria, public land manager, VicRoads, VicTrack and water authority are defined for clarification purposes in relation to the proposed Aboriginal cultural heritage land management agreement process and Victorian Aboriginal Heritage Register access. environmental and ecological knowledge is inserted into the

Principal Act in order to clarify this term in the context of

Aboriginal intangible heritage and Aboriginal intangible heritage agreements. heritage advisor replaces cultural heritage advisor in the

Principal Act. public land manager defines, for the purposes of the Principal

Act only, those parties that can enter into Aboriginal cultural heritage land management agreements. It is intended to limit

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those that can enter into Aboriginal cultural heritage land management agreements to public land managers and registered

Aboriginal parties, in order for these parties to be able to negotiate and agree on how Aboriginal cultural heritage will be managed for a range of standard works and maintenance activities for an area of land such as a national park. rehabilitate is inserted in order to clarify what is intended in relation to cultural heritage permits for rehabilitation purposes. secret or sacred object is inserted to clarify that objects located with, or in, the direct vicinity of a traditional Aboriginal burial are considered to be secret or sacred objects for the purposes of the Principal Act. The definition is not exhaustive, so does not limit the range of objects regarded as secret or sacred to just objects found with Aboriginal burials.

survey for Aboriginal cultural heritage is inserted to explain that such surveys are surface investigations of the land for the purposes of discovering Aboriginal cultural heritage. They do not include subsurface investigations such as archaeological excavation or testing. They explicitly include any investigation of land for the purposes of a preliminary Aboriginal heritage test. university is inserted for the purposes of the Act to define those university institutions responsible for reporting on their collections of Aboriginal ancestral remains to the Victorian

Aboriginal Heritage Council under clause 12. harm now includes "disturb" and "interfere with". This is intended to assist in clarifying that collecting or removing

Aboriginal objects from an Aboriginal places is an offence.

The definition of Aboriginal person is amended to be consistent with amendments to the same definition in the Traditional

Owner Settlement Act 2010 .

The amendment to the definition of Aboriginal object is for consistency with the definition of Aboriginal tradition and to better reflect the connection between such objects and Aboriginal people.

The Bill amends the definition of Aboriginal tradition to include

"knowledge". This is intended to better explain what is meant by

Aboriginal tradition, particularly in the context of Aboriginal intangible heritage.

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native title agreement is amended to be consistent with the

Traditional Owner Settlement Act 2010 . sell is amended to explain this term includes selling Aboriginal objects through online auction houses.

This clause also repeals the definitions of Aboriginal human remains , buy , cultural heritage advisor , Department , inspector and traditional or familial links .

Clause 6 amends section 5(1) of the Principal Act to be consistent with the definition of Aboriginal tradition and to better reflect the connection between Aboriginal places and Aboriginal people.

Clause 7 amends section 7 of the Principal Act and replaces "traditional and familial links" with "traditional owners" . This replacement occurs throughout the Bill. This nomenclature is in more common usage since the initial passage of the Principal Act in

2006. Traditional owner is only defined for the purposes of the

Bill, not for wider purposes, and has the same meaning and intent as the former section 7. Traditional owner links to Aboriginal ancestral remains or secret or sacred objects is the basis for ownership of those remains or objects under Part 2, and is intended to mean a person who has responsibility under

Aboriginal tradition for the remains and is a member of a family or clan recognised under Aboriginal tradition as having responsibility for Aboriginal ancestral remains and secret or sacred objects from an area.

Clause 8 amends section 9 of the Principal Act and states that nothing in the Principal Act affects the operation of the Coroners Act 2008, subject to new section 19A in clause 17 of the Bill.

Clause 9 amends the principles that underlie Part 2 of the Principal Act.

It is intended that Aboriginal intangible heritage is owned collectively by traditional owners of the area, region or culture from where it is reasonably believed that intangible heritage originates. For the purposes of the Principal Act, it is not intended for individuals to own Aboriginal intangible heritage.

Clause 9 inserts a new section 12(2). This defines "own" to include collective ownership and custodianship as understood by traditional owners in accordance with Aboriginal tradition.

This is intended to better accommodate such notions of ownership as understood under some Aboriginal traditions.

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Clause 10 amends the heading of Division 2 or Part 2 of the Principal Act and replaces "Aboriginal human remains" with "Aboriginal ancestral remains" and inserts a note explaining the effect of section 13 of the Principal Act prior to its repeal.

Clause 11 repeals section 13 of the Principal Act as it is spent.

Clause 12 substitutes a new section 14 in the Principal Act. Clause 12 inserts a requirement for public entities and universities which may hold Aboriginal ancestral remains to examine their holdings and report on any collections to the Victorian Aboriginal

Heritage Council within two years of the commencement of the section. It will be an offence not to comply, with a penalty of

3000 penalty units. Once reported upon, the institution must take steps to transfer the collection to the Victorian Aboriginal

Heritage Council as soon as practicable.

Clause 13 repeals sections 15 and 16 of the Principal Act. All reports of

Aboriginal ancestral remains are intended to be provided to the

Victorian Aboriginal Heritage Council, as are transfers of such remains.

Clause 14 amends section 17 of the Principal Act, and inserts "Aboriginal ancestral remains" where "Aboriginal human remains" occurs.

Clause 14 also substitutes section 17(2) of the Principal Act, and clarifies that an Aboriginal person who is the rightful owner of the Aboriginal ancestral remains, or who reasonably believes transferring the remains would be contrary to Aboriginal tradition, is not subject to this provision. The Bill inserts a note to clarify the provisions relating to corporate criminal liability apply to offences against this section.

Clause 15 amends section 18 of the Principal Act and substitutes the

"Council" for the "Secretary", and "Aboriginal ancestral remains" for "Aboriginal human remains".

Clause 16 amends section 19 of the Principal Act and substitutes the

"Council" for the "Secretary" and "Aboriginal ancestral remains" for "Aboriginal human remains". Clause 16 also inserts additional categories of people to whom section 19 of the Principal Act does not apply. These are the coroner or an Aboriginal person who reasonably believes transferring the remains would be contrary to Aboriginal tradition.

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Transferral and treatment of Aboriginal ancestral remains by the coroner is dealt with elsewhere.

Clause 17 inserts a new section 19A, after section 19 of the Principal Act.

New section 19A requires a coroner to transfer Aboriginal ancestral remains to the Victorian Aboriginal Heritage Council as soon as practicable after reporting to the Council that a body is, or is likely to be, Aboriginal ancestral remains.

The clause also inserts a note referring to section 16 of the

Coroners Act 2008 , the intent of which is to clarify that a coroner is required to report to the Victorian Aboriginal Heritage

Council the determination that a body is or is likely to be

Aboriginal ancestral remains.

Clause 18 substitutes section 20 of the Principal Act and inserts a new section 20A. Section 20 now places obligations on the Council regarding what it is to do with Aboriginal ancestral remains transferred to it. The Council must transfer the remains to a relevant traditional owner or registered aboriginal party, to the

Museums Board for safekeeping, or otherwise deal with the remains as appropriate until it can transfer the remains to an

Aboriginal person or registered Aboriginal party.

New section 20A places a requirement on a person who inters

Aboriginal ancestral remains outside of an Aboriginal place to report the location of the interment to the Secretary. The intent of this provision is to ensure all known Aboriginal burial places are known and registered in order to prevent future harm.

Clause 19 amends section 21 of the Principal Act to clarify the ownership of secret or sacred object prior to the commencement of the Bill.

Clause 20 inserts new sections 21A and 21B, after section 21 of the

Principal Act.

Section 21A clarifies the intent that secret and sacred Aboriginal objects are no longer able to be lawfully owned by individuals or

State entities other than in accordance with Aboriginal tradition.

People in possession of secret or sacred Aboriginal objects on the commencement of the section must transfer these objects to the

Victorian Aboriginal Heritage Council as soon as practicable.

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The provision creates an offence of failing to transfer secret or sacred objects to the Victorian Aboriginal Heritage Council as soon as practicable after the commencement of the section.

The intent is to encourage compliance.

The intent of section 21B is that secret or sacred Aboriginal objects are to be treated similarly as Aboriginal ancestral remains by the Principal Act. The Council is required to follow the same procedures as for Aboriginal ancestral remains once it receives secret or sacred objects.

Clause 21 amends section 23 of the Principal Act and clarifies that

"traditional owners" hold primacy in negotiating the return of secret or sacred objects.

Clause 22 addresses the previous incorrect naming of the Museums Board in the Act.

Clause 23 clarifies the role of the Museums Board in the Aboriginal ancestral remains and secret or sacred object processes.

The clause draws an intentional distinction between

"safekeeping" and "custody". It is intended by this clause that the Museum is not required to accession into its collection any

Aboriginal ancestral remains transferred to it, but is required to accept and store remains transferred to it for safekeeping. This is proposed in order to ensure Aboriginal ancestral remains and secret or sacred objects always have a place to be securely stored.

It is intended the Museum is required to accept transferred remains, but is not required to keep the remains at the Museum of

Victoria, as is currently the case.

Clause 24 clarifies the principle offences of the Act: harming Aboriginal cultural heritage. The intent of this provision is to simplify the offences and remove a redundant barrier to successful prosecutions. The Bill amends the Principal Act to require mental culpability to be assessed once only, with regard to the state of mind of the offender when their act caused harm.

This removes an unreasonable and redundant burden of proof on the prosecution, is fairer and consistent with similar offences in other legislation. Three levels of mental culpability remain: knowledge, recklessness or negligence. Penalties remain unchanged for the three levels of offence. The clause also inserts a note to clarify that provision relating to corporate criminal liability applies to offences under this section.

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Clause 25 substitutes section 28 of the Principal Act, and inserts a strict liability offence. It is intended that this offence be applicable in cases of less harmful actions than intended to be prosecuted by the amended offences in clause 24. The lower penalty for this offence corresponds with its strict liability and the likely lower order of harm, at 60 penalty units for an individual and

300 penalty units for a body corporate. This new offence is designed to provide an alternative and effective deterrent to harming Aboriginal cultural heritage. Doing an act likely to harm Aboriginal heritage is also covered by this offence.

Clause 26 inserts additional exceptions to the harm offences in the Principal

Act. Any action undertaken in accordance with an approved

Aboriginal cultural heritage land management agreement is exempt from the harm offences. The coroner is exempted from the harm offences for anything done in the course of determining if a body is Aboriginal ancestral remains. This is to allow for a coroner to destroy part of the remains for DNA and other destructive tests which may be needed to help determine the origin and nature of the remains.

Clause 27 amends section 30(3) of the Principal Act and substitutes

"restoration" for "rehabilitation". This is because "rehabilitation" now will have a specific meaning unrelated to the intent of this provision.

Clause 28 amends section 31(4) of the Principal Act and substitutes

"Aboriginal human remains" with "Aboriginal ancestral remains".

Clause 29 amends section 34 of the Principal Act to omit the requirement for a cultural heritage permit in order to buy an Aboriginal object. The requirement for a permit to sell an Aboriginal object remains. The clause also makes it unnecessary to obtain a cultural heritage permit for activities undertaken in accordance with an Aboriginal cultural heritage land management agreement.

Clause 30 inserts a new section 34A after 34 of the Principal Act and establishes a process for Aboriginal cultural heritage surveys which are not for a cultural heritage management plan.

The intent of this section is to regulate archaeological surveys which may be conducted for due diligence purposes, for example.

It is further intended that information gleaned from such surveys is gathered centrally in the Victorian Aboriginal Heritage

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Register. The Bill requires a person intending to carry out such a survey to notify the relevant registered Aboriginal party, the

Secretary and any relevant landowner. The registered Aboriginal party may elect to participate in the survey.

The intent of the new offence is to encourage the timely lodgement of relevant documentation with the Secretary.

Relevant documentation is defined in the clause to include the normal results of such survey work.

Surveys for cultural heritage management plans and Aboriginal cultural heritage land management agreements are not subject to the new section. These processes have their own statutory requirements. Surveys for preliminary Aboriginal heritage tests, inserted by clause 42, are subject to this section.

Clause 31 inserts a new section 35A before section 36 of the Principal Act.

New section 35A defines an "approval body" in relation to an application for a cultural heritage permit.

Clause 32 amends the Principal Act to replace the current decision maker

(the Secretary) with an approval body (a registered Aboriginal party, the Secretary, or the Victorian Aboriginal Heritage

Council).

The intent of removing the requirement for research to be

"scientific" in section 36(1)(b) expands the nature of research which may be undertaken under a cultural heritage permit.

This clause also expands the subject of research to include

Aboriginal objects. It removes the requirement for a separate permit to remove researched objects from Victoria for the purposes of that research. This will allow researchers to send samples to a foreign or interstate carbon dating laboratory, for example.

Clause 32(3) removes the requirement for a permit to buy

Aboriginal objects, but retains the requirement for a permit to sell

Aboriginal objects.

Clause 32(5) establishes two new grounds on which a cultural heritage permit may be granted. The first is a permit to rehabilitate land at an Aboriginal place or burial grounds.

The second is to make available a permit for the interment of

Aboriginal ancestral remains. The intent is to allow these activities to occur under a permit without committing an offence under sections 27 and 28 of the Principal Act.

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Clause 33 amends section 37(1) of the Principal Act and clarifies that a permit to harm (section 36(1)(c)), sell (section 36(1)(d)) or remove an Aboriginal object from Victoria (section 36(1)(e)) cannot be granted with respect to Aboriginal ancestral remains or secret and sacred objects. It also clarifies the intention that, where a cultural heritage permit relating the Aboriginal ancestral remains is requested, and there is no relevant registered

Aboriginal party to which the applicant can apply, the Secretary must obtain the Victorian Aboriginal Heritage Council's permission before issuing the permit.

Clause 34 repeals sections 38 and 39 of the Principal Act. These are redundant given the new approval power of registered Aboriginal parties.

Clause 35 provides for a 30-day evaluation period for cultural heritage permits. During the evaluation period, the approval body may ask for additional information, if the approval body considers it reasonably necessary to assist their decision. Additional requirements are placed on the Secretary, where the Secretary is the approval body, to consult Aboriginal people or bodies and to consult with the Victorian Aboriginal Heritage Council if the application is to rehabilitate land containing burials of Aboriginal ancestral remains or to inter Aboriginal ancestral remains and there is no relevant registered Aboriginal party. While awaiting this information, the 30-day period ceases to run, and recommences upon the receipt of satisfactory information by the approval body. If the approval body fails to determine an application within the 30-day evaluation period, the permit is taken to be refused.

Clause 36 amends section 41 of the Principal Act, and allows an approval body to place conditions on a cultural heritage permit. Clause 36 also inserts an offence for failing to comply with the conditions of a cultural heritage permit. It also allows for permits to be transferred and amended with the approval of the relevant approval body. Where the Secretary is the approval body, the

Secretary is obliged to consult with any relevant Aboriginal person or Aboriginal body prior to deciding whether to approve the transfer. Finally the clause clarifies that a cultural heritage permit takes effect on lodgement with the Secretary.

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Clause 37 amends section 42 of the Principal Act, by substituting

"conditions" for "recommendations". This amendment is intended to establish the mandatory nature of "conditions" in cultural heritage management plans.

Clause 38 amends section 43 of the Principal Act, by substituting "a ground survey to detect the presence of Aboriginal cultural heritage" for

"a survey for Aboriginal cultural heritage".


This clause allows approved cultural heritage management plans to be amended. It is intended for the same processes as for a new cultural heritage management plan to be followed for an amendment. An assessment of an area is not required for a proposed amendment if that area has already been subject to an assessment as part of the initial cultural heritage management plan.

Clause 40 amends section 46 of the Principal Act. The clause requires the preparation of a cultural heritage management plan where the

Secretary certifies a preliminary Aboriginal heritage test which determines that a proposed activity requires the preparation of a cultural heritage management plan. The clause also inserts a new offence with three levels of mental culpability for a person who commences an activity for which a cultural heritage management plan is required but has not been approved. This offence is intended to strengthen Aboriginal cultural heritage management requirements and clarify that a cultural heritage management plan is mandatory if required under this Part.

Clause 41 repeals section 48(2) of the Principal Act. This offence is now included in the new offence inserted by clause 40.

Clause 42 inserts a new Division 2A into Part 4 of the Principal Act.

This clause inserts a new preliminary Aboriginal heritage test process. This process is designed to provide greater certainty for those wishing to undertake an activity for which a cultural heritage management plan may be required.

A person may prepare a preliminary Aboriginal heritage test to assist them determine whether a cultural heritage management plan is or is not required. A person may apply to the Secretary for certification that the Secretary agrees with the conclusions reached in a preliminary Aboriginal heritage test. If a person elects to prepare a preliminary Aboriginal heritage test for

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certification, they may then apply to the Secretary to certify the preliminary Aboriginal heritage test in the prescribed form and with the prescribed fee. Upon receipt of a preliminary Aboriginal heritage test for certification, the Secretary must decide whether the conclusions of the preliminary Aboriginal heritage test are correct or not within 21 days. The Secretary may request additional information from the applicant during the 21-day approval period, which stops the approval period until the information is received.

The Secretary may certify or refuse to certify the preliminary

Aboriginal heritage test. The intention is then that the person may then provide the certified preliminary Aboriginal heritage test to the relevant statutory authority (for example a municipal council) to assist them through the planning application process.

This process is optional, therefore no appeal to the Victorian

Civil and Administrative Tribunal of the Secretary's decision is intended.

To be clear, it is intended that a person is still subject to prosecution under the Act for causing harm to Aboriginal cultural heritage despite having received a certified preliminary

Aboriginal heritage test to the effect that a cultural heritage management plan was not required for an activity.

Clause 43 amends section 50 of the Principal Act. The clause adds the relevant statutory approval required under the Greenhouse Gas

Geological Sequestration Act 2008 to the list of earth resource authorisations in section 50 of the Principal Act, and removes the redundant reference to the Pipelines Act 1967 . It also adds the

Greenhouse Gas Geological Sequestration Act 2008 to the list of earth resource laws in that same section.

Clause 44 inserts a new section 52(5A) into the Principal Act. The clause establishes the same restriction in section 52 of the Principal Act on statutory authorities granting approvals to amended cultural heritage management plans as if they were new cultural heritage management plans. This is to clarify that if a person wishes to amend a cultural heritage management plan after its initial approval, the statutory authority is prevented from approving that activity until the amendment to the cultural heritage management plan is approved.

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Clause 45 amends section 54 of the Principal Act and introduces the ability to charge a fee for lodging a notice of intention to prepare a cultural heritage management plan. The clause also inserts a new requirement for a sponsor to notify any municipal council to which the proposed cultural heritage management plan relates.

The clause also includes a requirement for a sponsor to detail in the notice the Aboriginal groups or individuals with whom the sponsor intends to consult where the proposed cultural heritage management plan is to take place in an area to which a registered

Aboriginal party has not been appointed. The intention here is to assist the Secretary determine the need for, and potential constitution of, an activity advisory group under new section 60A inserted by clause 50.

Clause 46 inserts new provisions into section 55 of the Principal Act with the intention to clarify that a registered Aboriginal party cannot evaluate a cultural heritage management plan if the sponsor of that cultural heritage management plan is the registered

Aboriginal party. It further clarifies that a registered Aboriginal party may evaluate the cultural heritage management plan sponsored by a different registered Aboriginal party.

Clause 47 amends section 57 of the Principal Act and is intended to allow the involvement of a newly registered Aboriginal party in a cultural heritage management plan where that registered

Aboriginal party was registered after the relevant sponsor gave notice of intention to prepare a cultural heritage management plan, but before the intended commencement of the assessment for the cultural heritage management plan, rather than before the intended date of commencement of the preparation of the plan.

The latter time in some cases may be earlier than the former and it is intended to provide new registered Aboriginal parties with a reasonable time to become involved in new cultural heritage management plans in their region.

Clause 48 amends section 58 of the Principal Act, and substitutes

"cultural heritage advisor" with "heritage advisor".


"recommendations" with "conditions". This amendment is intended to reinforce the mandatory nature of conditions in cultural heritage management plans.

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This clause describes the proposed activity advisory group process. This is designed to assist sponsors to consult with

Aboriginal people in areas where there is no registered

Aboriginal party, and to streamline the cultural heritage management plan process in such areas.

The Secretary may elect to appoint an activity advisory group for an activity in an area for which a registered Aboriginal party has not been appointed, after receiving a notice of intention to prepare a cultural heritage management plan for that activity.

If the Secretary decides to appoint an activity advisory group, the activity advisory group must be appointed within 21 days of receiving the notice of intent. If appointed, the Secretary must inform the sponsor of that appointment as soon as possible after the appointment of the activity advisory group.

The intended purpose of the activity advisory group is to advise the Secretary about the proposed activity and its impact on

Aboriginal cultural heritage. The activity advisory group may consult with the sponsor and heritage advisor about the cultural heritage assessment and the conditions of the cultural heritage management plan, and may participate in the conduct of the assessment. The sponsor and heritage advisor are obliged to make reasonable efforts to consult with the activity advisory group before and during the preparation of the cultural heritage management plan.

The Secretary may appoint any representatives of relevant traditional owners whom the Secretary considers appropriate to an activity advisory group. The Secretary is to provide terms and conditions on the participation of traditional owners appointed to an activity advisory group through a formal instrument of appointment. Remuneration and allowances will also be included in this instrument. Guidelines governing the remuneration for, and numbers of, activity advisory group representatives able to participate in the conduct of assessments will be developed and used in appointment instruments. The Secretary will retain the powers to approve or refuse to approve the cultural heritage management plan. The activity advisory group will serve as an advisory and consultative body for the Secretary.

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Clause 51 amends section 62 of the Principal Act, and explains the intention that an application to more than one registered Aboriginal party for approval of a cultural heritage management plan is only taken to be received by each of the parties on the date on which all of the parties have received the prescribed fee or, if there is no prescribed fee, the application.

Clause 52 amends section 63 of the Principal Act to allow the registered

Aboriginal party to ask the sponsor, in writing, for further reasonable information while evaluating a cultural heritage management plan. The time for the registered Aboriginal party to make a decision stops when the registered Aboriginal party asks for this information, and recommences when the information is satisfactorily supplied.

Clause 53 amends section 65 of the Principal Act. The clause allows the

Secretary to charge a fee for evaluating a cultural heritage management plan, which is not charged currently. The fee is proposed to be set at the same rates as set for applications to registered Aboriginal Parties under the Aboriginal Heritage

Regulations 2007.

It is intended that if the Secretary fails to make a decision about a cultural heritage management plan within 30 days, the plan is refused. This then establishes grounds for the sponsor to appeal the refusal to the Victorian Civil and Administrative Tribunal under section 116(2) of the Principal Act.

This clause allows the Secretary to ask the sponsor, in writing, for further reasonable information while evaluating a cultural heritage management plan. It is intended that a sponsor be provided at least 30 days to respond to such a request. Failure to respond will result in the lapsing of the application.

The time for the Secretary to make a decision stops when the

Secretary asks for this information, and recommences when the information is satisfactorily supplied.

Additional requirements are placed on the Secretary, in making a decision, to consider the view of any Aboriginal person or

Aboriginal body that the Secretary considers relevant or an activity advisory groups if the Secretary has appointed such a group.

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Clause 54 amends section 66 of the Principal Act. A prescribed fee may be charged by the Victorian Aboriginal Heritage Council to evaluate a cultural heritage management plan.

It is intended for the Council to be the evaluator of a cultural heritage management plan for which a registered Aboriginal party is the sponsor.

The clause also allows the Council to ask the sponsor for further reasonable information while evaluating a cultural heritage management plan. The time for the Council to make a decision stops when the Council asks for this information, and recommences when the information is satisfactorily supplied.

Clause 55 inserts a new section 66A into the Principal Act to allow for amendments to be made to approved cultural heritage management plans. An amendment to a cultural heritage management plan is to be treated as if the amendment was a new cultural heritage management plan for the purposes of its evaluation and approval or refusal.

Another intention of the clause is to allow for minor amendments to be dealt with expeditiously. The definition of a minor amendment is at the discretion of the relevant authority.

A relevant authority is defined for the purposes of the new section.

The clause allows for a fee to be charged for applications for amending cultural heritage management plans, and places a five year time limit on amending cultural heritage management plans after they have been initially approved. This final amendment is intended to place a reasonable limit on the duration and relevance of the conditions described in any cultural heritage management plan.

Clause 56 inserts new section 67A, after section 67 of the Principal Act.

The clause inserts a new offence of failing to comply with the conditions of a cultural heritage management plan, with three levels of mental culpability. These offences are intended to entrench the mandatory nature of cultural heritage management plan conditions.


"restoration and preservation" for "rehabilitation".

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Clause 58 inserts a new Division 1A into Part 5 of the Principal Act.

This clause establishes Aboriginal cultural heritage land management agreements, intended to allow for long term cultural heritage management practices on land managed by public land managers. Aboriginal cultural heritage land management agreements are an agreement between a registered Aboriginal party and a public land manager as defined by the Bill.

Such agreements are intended to cover Aboriginal cultural heritage management conditions for routine and low to medium impact land management activities for an agreed period.

Agreed conditions, such as payments, heritage management actions and registered Aboriginal party engagement are to be included in these agreements. It is envisaged that these agreements will obviate the need for public land managers to apply for individual cultural heritage permits each time they wish to undertake works of a low to medium impact which will or are likely to affect Aboriginal cultural heritage.

An Aboriginal cultural heritage land management agreement cannot deal with any action or works that requires a cultural heritage management plan. An agreement must be in the prescribed form and prepared in accordance with prescribed standards. The agreement must clearly set out any conditions, as failure to comply with any conditions will be an offence.

Before entering into an agreement, the registered Aboriginal party must give the Secretary notice of the intention to enter into an agreement. This is because activities in the development of an agreement are exempted from the harm offences in sections 27 and 28 of the Principal Act. Within 14 days of entering into an agreement, a copy of the agreement and any relevant documentation must be provided to the Secretary. The Secretary will then lodge this information on the Victorian Aboriginal

Heritage Register. Agreements can be amended.

The clause establishes an offence for failing to comply with an agreement, with three levels of mental culpability.

Finally, it is intended that an Aboriginal cultural heritage land management agreement be terminated if the registered Aboriginal party's registration is revoked by the Victorian Aboriginal

Heritage Council. If the registered Aboriginal party's registration is suspended by the Council, it is not a party to the agreement for the duration of the suspension.

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Clause 59 inserts a new Part 5A into the Principal Act. This clause inserts provisions for the use, management and protection of Aboriginal intangible heritage. The intent of the Bill is to create a new right facilitating traditional owner groups recognised by the State to control the protection and use of their intangible heritage.

The clause defines the intended meaning of Aboriginal intangible heritage. This is intended to encompass Aboriginal knowledge and expression held collectively by Aboriginal people or a particular group of Aboriginal people and passed down across generations, with or without adaptations and evolutions in nature or practice. It is limited to knowledge and expression of

Aboriginal tradition, and to such things which are not generic to, or known or practiced widely by, the broader population. It is not limited to the types of knowledge and expression of

Aboriginal tradition listed in the clause. Intellectual creation or innovation based on Aboriginal intangible heritage is included in the definition and is intended to be protected.

A registered Aboriginal party or a traditional owner group entity entitled to be registered as a registered Aboriginal party under section 151(2) or (2A) of the Principal Act are exclusively able to apply to the Secretary to have details of Aboriginal intangible heritage placed onto the Victorian Aboriginal Heritage Register.

This is intended to avoid instances of conflict between individual applicants by restricting this ability to traditional owner groups recognised by the State as being representative of a group of traditional owners. It is also to reflect the intention that

Aboriginal intangible heritage is collectively owned and sustained by a group, rather than an individual, and rights and benefits accruing from that ownership should so accrue to the group.

It is intended that only Aboriginal intangible heritage which is registered is afforded protection under the Act. The clause establishes a registration application process whereby the

Secretary is the decision maker about whether to register

Aboriginal intangible heritage or not. The Secretary has 90 days to determine an application, with provision to request further information which stops the 90-day clock. An application must be made in the prescribed form.

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It is not intended to limit the right of an Aboriginal person to enjoy the use and application of Aboriginal intangible heritage in accordance with Aboriginal tradition. New section 79A activates this intention.

Unlike the registration process for Aboriginal cultural heritage, in which no decision is made by the Secretary to register Aboriginal cultural heritage, there is a deliberative decision making process for determining the appropriateness of an application to register

Aboriginal intangible heritage. It is intended the Secretary will make appropriate inquiries and investigations to assess the veracity of an application before making a decision.

The Bill is silent on the matter of reviewing the Secretary's decision. It is not intended for the decision of the Secretary to be subject to review by the Tribunal or any other body other than the courts.

The Bill is also intentionally silent on resolving disputes between traditional owner groups about the ownership of Aboriginal intangible heritage. It is intended the prescribed form will require an applicant to demonstrate the results of consultations with other traditional owner groups about the intention to apply to register Aboriginal intangible heritage before an application is made to the Secretary. Otherwise, it is intended for such disputes to be resolved in the usual manner.

New section 79D provides Aboriginal intangible heritage agreements. It is the intention of the provision that a person or body may make an agreement with a relevant traditional owner group covering the management, protection, conservation, research, publication, development, commercial use, and compensation to be paid to the relevant traditional owner group for the above. Traditional owner use of the intangible heritage and anything produced from the research and development of that

Aboriginal intangible heritage may also be covered by such agreements.

Aboriginal intangible heritage agreements cannot deal with any matter for which a cultural heritage permit or cultural heritage management plan is required under the Act.

New section 79E establishes a prescribed form for an Aboriginal intangible heritage agreement.

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New section 79F establishes the requirement to register the agreement with the Secretary and to notify the Secretary of any amendment or the termination of the agreement. This is intended to facilitate the accuracy of information on the Victorian

Aboriginal Heritage Register.

It is intended to protect Aboriginal intangible heritage which is registered on the Victorian Aboriginal Heritage Register from unauthorised commercial use. New section 79G creates an offence, with two levels of mental culpability, intended to prevent this from occurring. New section 79H makes it an offence, with three levels of mental culpability, for a party to an

Aboriginal intangible heritage agreement to fail to comply with the agreement. This is intended to encourage compliance and deter breaches of the agreement.

Clause 60 makes a consequential amendment to the heading to Part 6 of the

Act.


"authorised officer" for "inspector", and "conditions" for

"recommendations".


"authorised officer" for "inspector", and "heritage advisor" for

"cultural heritage advisor". The clause also inserts new provisions after section 83(4) of the Principal Act. These new provisions remove the requirement for the Secretary to pay the costs of the engagement of a heritage advisor if one is required to be engaged by a sponsor for a cultural heritage audit. It is unreasonable for the Government to be expected to pay the costs of individual consultants. This could lead to Government liability for unreasonable fees. While this means the sponsor is now liable for the costs of engaging a heritage advisor for an audit, the Secretary will be obliged to reimburse the sponsor for these costs where an audit finds the sponsor has not contravened the cultural heritage management plan or cultural heritage permit.


"authorised officer" for "inspector", and "conditions" for

"recommendations".

Clause 64 amends section 86 of the Principal Act by substituting

"conditions" for "recommendations".

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Clause 65 amends section 87 of the Principal Act to clarify when a stop order can be issued.

New section 87(1) of the Principal Act provides that the

Minister or an authorised officer may issue a stop order to a person if the person is carrying out or proposes to carry out an act that is or is likely to cause harm to Aboriginal cultural heritage. The Minister or authorised officer must have reasonable grounds for believing that issuing a stop order is required to properly protect the Aboriginal cultural heritage and there is no alternative before issuing the stop order.

Section 87(1A) of the Bill provides that the Minister or an officer must not issue a 24-hour stop order in relation to an act being carried out in accordance with a cultural heritage permit, an approved cultural heritage management plan, or an Aboriginal cultural heritage land management agreement.

Clause 66 amends section 89 of the Principal Act by substituting "acts" for

"activities". This is because "activity" is specifically defined in the Act and other "acts" may be done which can constitute an offence.


"activities".

Clause 68 amends section 93 of the Principal Act by substituting

"inspector" for "authorised officer".


"activities".

Clause 70 inserts a new Division 3 into Part 6 of the Principal Act to create a new enforcement power called a 24-hour stop order. It is intended that 24-hour stop orders be used by an authorised officer or an Aboriginal heritage officer to stop an action which is harming, or is likely to cause harm, to Aboriginal cultural heritage for 24 hours.

New section 95A provides that an authorised officer or an

Aboriginal heritage officer may issue a 24-hour stop order to a person if the person is carrying out or proposes to carry out an act that is or is likely to cause harm to Aboriginal cultural heritage, and that the officer believes issuing a 24-hour stop order is necessary to properly protect the Aboriginal cultural heritage.

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New section 95A(2) provides that an officer must not issue a

24-hour stop order in relation to an act or proposed act being carried out in accordance with a cultural heritage permit, an approved cultural heritage management plan or an Aboriginal cultural heritage land management agreement.

A 24-hour stop order must be in the approved form and may require a person to stop the specified act immediately, or prohibit the person from doing the act specified in the order.

A 24-hour stop order must be delivered in person or may be placed at the site of the act or proposed act. If the person is a body corporate, it must be delivered to the person who is apparently in charge of the act.

It is intended that an authorised officer or Aboriginal heritage officer have the power to enter any land or premises at any time to issue a 24-hour stop order.

It is not intended for consecutive 24-hour stop order to be able to be issued for in relation to the same act.

An authorised officer or Aboriginal heritage officer may cancel a

24-hour stop order they have issued, providing notice of that cancellation to the person affected.

It is intended for operating 24-hour stop orders to be overridden by a stop order subsequently imposed under section 87 of the

Principal Act. New section 95B(3) provides for the cancellation of a 24-hour stop order in this circumstance.

It is intended that it is to be an indictable offence if a person issued with a 24-hour stop order engages in conduct the person knows contravenes the 24-hour stop order. The clause provides for such an offence with one level of mental culpability.

Clause 71 inserts a new Division 4 into Part 6 of the Principal Act to establish a new enforcement power called an improvement notice. It is intended this be used by an authorised officer or

Aboriginal heritage officer to correct apparent contraventions of the Act, including contraventions of an approved cultural heritage management plan or cultural heritage permit. This power is intended to be used when an authorised officer or Aboriginal heritage officer has reasonable grounds to believe both such a contravention has occurred and is likely to be repeated.

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An improvement notice may be served by an authorised officer or an Aboriginal heritage officer requiring the sponsor or permit holder to remedy the contravention, or the matters or acts causing the contravention, or matters or acts that are likely to cause a contravention.

An improvement notice must state why the authorised officer or

Aboriginal heritage officer has served an improvement notice and specify the provision of the Principal Act which gave rise to that reason. The improvement notice must specify a date within which the actions in the improvement notice must be completed.

The improvement notice must state the penalty for contravening the notice and may include directions for the sponsor or cultural heritage permit holder to follow to remedy or prevent the contravention.

New section 95E of the clause establishes the intention that if the contravention is also an offence according to the Principal Act, the sponsor or holder may still be found guilty of that offence regardless of whether an improvement notice has been issued for the contravention or not.

The clause establishes an indictable offence, with one level of mental culpability, of engaging in conduct the sponsor or cultural heritage permit holder knows contravenes the improvement notice.

An authorised officer or Aboriginal heritage officer may amend an improvement notice they have issued to a sponsor or cultural heritage permit holder. An amendment must be served on the sponsor or permit holder and must state the particulars described in new section 95G(2). An improvement notice may be cancelled at any time by the same authorised officer or an Aboriginal heritage officer who served the notice by serving notice of the cancellation to the sponsor or permit holder.

Clause 72 substitutes section 111 of the Principal Act to provide for disputes either between registered Aboriginal parties or between a registered Aboriginal party and a sponsor arising during the preparation of a cultural heritage management plan to be referred for alternative dispute resolution. It is intended by this provision that disputes which cannot be resolved through other means may be referred to the Victorian Aboriginal Heritage Council for resolution in accordance with the Principal Act.

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It is not intended for disputes arising from the evaluation of a cultural heritage management plan by the Secretary or the

Council to be the subject of alternative dispute resolution.

Clause 73 reflects the intent that it is no longer desirable for the Principal

Act to compel the Chairperson of the Council to arrange for the mediation or resolution of a dispute referred to them by a registered Aboriginal party or a sponsor. The clause specifically clarifies the intent that the Chairperson is not required to arrange for the mediation or resolution of a dispute where the

Chairperson reasonably believes the mediation or resolution is unlikely to be successful.

Clause 74 clarifies the intent to restrict the Victorian Civil and

Administrative Tribunal to making amendments to the conditions of a cultural heritage management plan, rather than to any part of the plan.

Clause 75 amends the Principal Act to be consistent with the new nomenclature "approval body" in relation to cultural heritage permit approvals.

Clause 76 makes a consequential amendment to section 122 of the Principal

Act.

Clause 77 amends section 131 of the Principal Act to be consistent with the new nomenclature "traditional owner".

Clause 78 provides for additional functions of the Victorian Aboriginal

Heritage Council and updates the nomenclature of the section.

The additional functions are as listed.

It is intended for the Council to oversee and manage the

Aboriginal ancestral remains system.

The Bill amends the Principal Act to empower the Council to advise, at the Councils own initiative, the Minister for Aboriginal

Affairs regarding the protection of Aboriginal cultural heritage in

Victoria.

The Principal Act is amended to allow the Council to promote public awareness and understanding of Aboriginal cultural heritage in Victoria.

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It is intended that the Council be required to report to the

Minister annually on the performance of its functions, and those of registered Aboriginal parties by including in its report to the

Minister a summary of the annual reports required to be submitted to the Council by Registered Aboriginal Parties.

It is intended for the Council to have the function of advising the

Minister administering the Planning and Environment

Act 1987 on proposed amendments to planning schemes which may affect Aboriginal cultural heritage.

The Bill intends for the Council to control the system for reporting and returning Aboriginal ancestral remains and secret or sacred objects.

The Council is to have the function of advising the Secretary on cultural heritage permits and cultural heritage management plans related to Aboriginal ancestral remains in areas where there is no appointed registered Aboriginal party.

It is intended for the Council to evaluate cultural heritage permits pertaining to areas of Victoria for which a registered Aboriginal party has not been appointed.

The Council is to have the function of managing the Aboriginal

Cultural Heritage Fund.

The Council is intended to have the function of advising the

Minister and the Secretary regarding Aboriginal cultural heritage.

It is intended for the Council to manage, oversee and supervise the operations of registered Aboriginal parties.

The Council is to have the function of promoting and assisting the conduct of research into the Aboriginal cultural heritage of

Victoria.

The Council will have the function of being able to nominate information on the Register to be restricted information. This is limited to information about Aboriginal ancestral remains, secret or sacred objects, Aboriginal places and Aboriginal objects.

It is intended that the Council be able to publish its own policies and guidelines relating to its functions.

It is intended the Council have the function of providing a report about the state and nature of Aboriginal cultural heritage in

Victoria every five years. It is intended this report include

25

information about Victoria's Aboriginal cultural heritage, its protection and management, and any related matter in order for the public to become informed about the ongoing protection and management of Victoria's Aboriginal cultural heritage.

Clause 79 inserts a new section 132A into the Principal Act to provide that the Council may delegate any of its functions (except the power to delegate) to the Secretary, a member of the Council, or a

Council advisory committee.

Clause 80 substitutes section 137 and inserts a new section 137A into the

Principal Act to provide for the Minister for Aboriginal Affairs to appoint an alternate member for each member of the Council.

The alternative member may act in place of a member if the member is absent or unable to perform their duties, at the agreement of the member and alternate member, or where the member's position becomes vacant. The alternate member cannot be appointed for longer than six months and has all the same functions of the regular member when acting.

Clause 81 amends section 138 into the Principal Act to provide that the

Chairperson and Deputy Chairperson of the Council may be elected for two further terms of one year.

Clause 82 amends section 142 of the Principal Act to remove the explanation of "personal interest" in the context of Council conflicts of interest, as this explanation is considered redundant.

Clause 83 inserts new section 142A, 142B and 142C of the Principal Act to provide that the Council may establish advisory committees to advise it in the carrying out of its functions under the Act.

The clause describes the intended procedures and remuneration provisions of advisory committees.

Clause 84 amends the nomenclature in section 143 of the Principal Act from "inspectors" to "authorised officers".

Clause 85 inserts a new section 144A into the Principal Act to establish the intended purposes of the Victorian Aboriginal Heritage Register.

It is intended for the Register to—

 be a central place where traditional owners can securely store information about their cultural heritage for the use and benefit of the people of Victoria; and

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 include information assisting the management and protection of Aboriginal cultural heritage; and

 include information to assist the management and protection of Aboriginal cultural heritage as part of sustainable land use and development; and

 be a repository for information which can be used in consideration of land use and land use planning; and

 be a research and planning tool assisting people to consider the Aboriginal cultural heritage values of particular objects and areas; and

 to facilitate the proper research of the Aboriginal peoples of Victoria for the benefit of all people.

To be clear, it is not intended for the Victorian Aboriginal

Heritage Register to be completely closed to Victorians. It is intended that the Register be used by Victorian traditional owners and other listed people in the Act for the purposes listed in the

Act. Restricted information can still be accessed by people under the regulated circumstances. The Register is an information source of great utility which should be used for appropriate purposes.

Clause 86 amends section 145 of the Principal Act to clarify what information is included in the Register. It is intended for all known Aboriginal objects in Victoria to be included.

Regarding Aboriginal ancestral remains, all known interments of remains reported to the Council or Secretary or delivered to the

Council or known to be in possession or under the control of any person must be recorded in the Register. This is to assist tracking

Aboriginal ancestral remains from discovery to reburial.

Amendments to cultural heritage permits, cultural heritage management plans, or cultural heritage agreements must be registered, as must all Aboriginal cultural heritage land management agreements, all certified preliminary Aboriginal heritage tests, all information arising from surveys for Aboriginal cultural heritage and all Aboriginal intangible heritage agreements.

27

Clause 87 amends section 146 of the Principal Act to place a limitation on the Secretary's power to provide access to the Register, which is to be subject to the amended provisions relating to sensitive information.

The clause also amends section 146(1)(c) of the Principal Act to add that a heritage advisor engaged for the purposes of a preliminary Aboriginal heritage test and an Aboriginal cultural heritage land management agreement may access the Register for specified related purposes.

The clause clarifies the intent that a land owner should have access to cultural heritage management plans conducted on his or her property even before he or she owned the land.

The clause replaces the term "cultural heritage advisor" with

"heritage advisor" in the section.

It is intended the Secretary provide access to a person who applies to the Secretary for the certification of a preliminary

Aboriginal heritage test—for the purpose of obtaining information on the Aboriginal cultural heritage that may relate to the subject land.

It is intended to extend access to a person for the purpose of determining whether an Aboriginal intangible heritage agreement exists or is required for a proposed purpose.

The following categories of people are also to have access to the

Register for the stated purposes only—

 a holder of a cultural heritage permit granted for research purposes under section 36(1)(a) or (b), for the purpose of obtaining information on any cultural heritage related to that permit;

 the Executive Director of Heritage Victoria, for the purpose of managing and protecting Aboriginal cultural heritage associated with a heritage place;

 a Catchment Management Authority, for the purpose of obtaining information that assists the authority with the control or management of land;

 the Minister responsible for keeping the Register of

Aboriginal Sites and Objects under Part 2 of the

Aboriginal Heritage Act 1988 of South Australia, and to the Director-General appointed under the National Parks

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and Wildlife Act 1974 of New South Wales, to assist with the management and protection of Aboriginal cultural heritage near the Victorian border in both of those States; and

 a Victorian public servant whose responsibilities include the assessment of planning permit applications or amendments to planning schemes—for the purpose of obtaining information on any Aboriginal cultural heritage relating to the application.

Finally, it is intended that the Secretary may charge a prescribed fee for accessing the Register.

Clause 88 inserts a new section 146A into the Principal Act to provide that the Secretary, on the recommendation of the Council or a registered Aboriginal party, may determine that information about Aboriginal cultural heritage or Aboriginal intangible heritage in the Register is sensitive information. It is intended by this provision that such information is to be treated with particular caution. The Secretary must restrict access to this information only to those given written approval from the relevant registered Aboriginal party, or the Council where no registered Aboriginal party has been appointed. It is intended the

Secretary be empowered to impose conditions on accessing sensitive information.

Clause 89 inserts a new section 147A into the Principal Act to create an offence, with two levels of mental culpability, to misuse information included on the Register. Misuse of the Register is where a person or body allowed access to the Register knowingly or recklessly uses information in the Register for any other purpose than that for which the access to the Register was provided.

Clause 90 updates nomenclature section 148 of the Principal Act relating to

Aboriginal ancestral remains and provides additional intended functions for a registered Aboriginal party.

It is intended a registered Aboriginal party have the function of providing advice generally regarding the Aboriginal cultural heritage relating to the area for which the party is registered.

29

It is intended registered Aboriginal parties have the necessary functions to carry out their duties relating to cultural heritage management plans, cultural heritage permits (including granting permits), cultural heritage agreements, preliminary Aboriginal heritage tests, Aboriginal cultural heritage land management agreements and Aboriginal intangible heritage agreements;

Registered Aboriginal parties are to have the function of advising the Minister administering the Planning and Environment

Act 1987 on proposed amendments to planning schemes which may affect Aboriginal cultural heritage.

It is intended that Registered Aboriginal parties report to the

Council annually on the performance of their functions, including any fees and charges paid to or imposed by the party in respect of the year.

Finally, registered Aboriginal parties are to have the function of nominating information about Aboriginal cultural heritage to be restricted information on the Register.

Clause 91 amends section 150 of the Principal Act to provide that an application to be appointed by a registered Aboriginal party must be made in the prescribed form, not the approved form.

In its application the applicant must consider the interests of any

Aboriginal people who are not traditional owners of the application area but who consider this area to be of cultural heritage significance. Such Aboriginal people might include people and their descendants who were relocated from their traditional lands to an Aboriginal mission located in the application area.

The applicant must be a corporation registered under the

Corporations (Aboriginal and Torres Strait Islander) Act 2006 of the Commonwealth.

Clause 92 amends section 151 of the Principal Act by inserting new provisions for the Council in determining an application for registration as a registered Aboriginal party.

The clause provides the Council 270 days, rather than 120 days, to decide on an application. This revision provides a more reasonable period of time to allow the Council to make an informed decision whether or not to approve an application.

The Council may determine part of an area relating to an

30

application in its decision. It is not intended for the Council to be compelled to determine the entire application when making a decision.

Where an applicant for registration is a registered native title holder for an area for which there is a native title agreement, or a traditional owner group entity for which the entity has entered into a recognition and settlement agreement, it is intended that that group must be appointed as the exclusive registered

Aboriginal party for the external perimeter of its native title agreement or recognition and settlement agreement. The intent of this provision is to clarify for the Council the outer boundary of a registration and to clarify that only another registered native title holder for the area can be registered as a registered

Aboriginal party for the area.

It is intended that applicants who are not the traditional owners of an area cannot be registered as a registered Aboriginal party for an area for which a traditional owner group entity or entities exists without the written consent of the traditional owner group entity or entities for the area. If there is no traditional owner group entity or entities for the subject area of the application, but there are traditional owners, the Council is not prevented from making a determination.

Other amendments to section 151 provide the Council greater flexibility in making a determination about an application.

The Council may request additional information from the applicant to assist the Council make its determination.

The decision time of the Council stops while the information is being provided and begins again once that information is provided.

Clause 93 inserts a new section 154A into the Principal Act to provide that the Council may impose conditions on the registration of a registered Aboriginal party at any time, with 30 days' written notice. It is intended the Council consider any response received by the registered Aboriginal party within 30 days before imposing a condition.

Clause 94 amends section 156 of the Principal Act to provide that the

Council may suspend or revoke the registration of a registered

Aboriginal party if the party contravenes a condition of registration imposed on it by the Council, or fails to register as a

31

corporation under the Corporations (Aboriginal and Torres Strait

Islander) Act 2006 of the Commonwealth.

It also clarifies the intent that the registration of a registered

Aboriginal party that is also a registered native title holder is preserved despite a determination that native title exists

(for another registered native title party) in that area. The intent is to allow for overlapping registered Aboriginal parties that are also overlapping native title holders.

Clause 95 inserts a new section 158A into the Principal Act to clarify the intent that a registered Aboriginal party must within 2 years of the commencement of the clause be a corporation registered under the Corporations (Aboriginal and Torres Strait Islander)

Act 2006 of the Commonwealth. The clause provides the ability to request a further 12 months to comply with this provision.

Clause 96 inserts a new Part 10A into the Principal Act to establish an

Aboriginal Cultural Heritage Fund. The Fund must be opened and maintained by the Council. It is intended that payments from any fees paid to the Council or the Secretary under the Act, any money borrowed by the Council, and any other money received by the Council be collected into the Fund, as with any interest earned on money in the Fund.

Payments out of the fund may be used for the certain listed purposes including the purpose of providing assistance generally for the protection and management of Aboriginal cultural heritage.

The Council may borrow money with the approval of the

Minister from any institution, person or body approved by the

Treasurer and the Treasurer may impose any terms or conditions on the borrowing of money by the Council. The Treasurer may guarantee borrowings in accordance with the clause.

The Council may accept gifts, which are vested in the Crown.

The Council may acquire land on which is located an Aboriginal place with the approval of the Minister in order to protect and maintain Aboriginal cultural heritage. The Council may sell the land.

Any loan or grant paid out of the fund is subject to a rate of interest set by the Treasurer.

32

Clause 97 amends the heading to Division 1 of Part 11 of the Principal Act to provide that "Inspectors" are to be called "authorised officers" in that heading.

Clause 98 amends section 159 of the Principal Act to provide that an

"inspector" is to be called an "authorised officer" in that section.













Clause 105 inserts a new Division 1A into Part 11 of the Principal Act to provide that new Aboriginal heritage officers are to undertake enforcement and compliance activities.

The clause establishes the functions of Aboriginal heritage officers to include monitoring compliance with cultural heritage management plans, cultural heritage permits, and Aboriginal cultural heritage land management agreements and issuing

24-hour stop orders.

The clause provides that an Aboriginal heritage officer is an employee of a registered Aboriginal party and is appointed by the

Minister after consultation with the Council. Before appointing an Aboriginal heritage officer, the Minister must be satisfied that an Aboriginal heritage officer has the prerequisites listed.

The Minister can suspend or revoke the appointment of an

Aboriginal heritage officer.

33

The Secretary must issue each Aboriginal heritage officer an identity card. The card must be returned to the Secretary if the person ceases to be an Aboriginal heritage officer or is suspended.

The clause establishes an offence of failing to return an identity card.

It is intended that an Aboriginal heritage officer must produce their identity card for inspection before exercising their powers or any time during the exercise of a power under the Act if asked to do so.

Clause 106 makes a consequential amendment to the heading of Division 2 of Part 11 of the Principal Act to ensure that the heading refers to

Aboriginal heritage officers and authorised officers.

Clause 107 amends section 166 of the Principal Act to provide that

Aboriginal heritage officers have the same power as authorised officers to enter land or premises (with the occupiers permission) for the purposes of carrying out their functions under the Act.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in obtaining the consent of an occupier.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in entering land or premises open to the public.

Clause 110 replaces "inspector" with "authorised officer" in section 169 of the Principal Act.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in searching land or premises upon entry.


Aboriginal heritage officers have the same seizure powers as authorised officers on entry without a search warrant.

34


Aboriginal heritage officers have the same seizure powers without consent as authorised officers.

Clause 114 amends section 173 of the Principal Act to clarify that

"inspectors" are to be called "authorised officers" in that section.

Clause 115 amends section 174 of the Principal Act to clarify that "inspector" is referred to as "authorised officer" in that section.


"inspector" is referred to as "authorised officer" in that section.


Aboriginal heritage officers have the same responsibilities as authorised officers in providing receipts for seized things.


Aboriginal heritage officers have the same responsibilities as authorised officers in securing seized things.

Clause 119 amends section 178 of the Principal Act to update nomenclature relating to Aboriginal ancestral remains. It also clarifies the intent that Aboriginal heritage officers have the same responsibilities as authorised officers when seizing Aboriginal ancestral remains.

Clause 120 substitutes section 179 of the Principal Act to establish the intended process by which things seized by an Aboriginal heritage officer or authorised officer must be returned to the person from whom they were seized.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in requiring the giving of a name and address of a person reasonably suspected to have committed, or be committing an offence against the Principal Act.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in requiring information after entering land or premises under the Division.


Aboriginal heritage officers have the same responsibilities and powers as authorised officers in taking affidavits.

35


Aboriginal heritage officers have the same responsibilities as authorised officers in reporting about an entry on to land or premises.

Clause 125 amends section 185 of the Principal Act to provide that it is an offence to impersonate, obstruct or hinder an Aboriginal heritage officer.

Clause 126 amends section 187 of the Principal Act to clarify the intent that in proceedings for an offence against the Principal Act involving the contravention of a 24-hour stop order, that 24-hour stop order is evidence that the place or object which is the subject of the

24-hour stop order is an Aboriginal place or object. The clause also clarifies that "inspectors" are to be called "authorised officers".

Clause 127 inserts new sections 187A and 187B into the Principal Act to extend criminal liability to officers of a body corporate, where the body corporate has committed the specified offences under the Act and the officer has failed to exercise due diligence.

The clause details what a court may consider in determining whether an officer of a body corporate failed to exercise due diligence.

The clause states the intent that an officer of the body corporate may rely on a defence that would be available to the body corporate if charged with the same offence.

The clause also clarifies the intent that an officer of a body corporate may be prosecuted of an offence regardless of whether the body corporate has been prosecuted for or found guilty of an offence under that provision or not.

The clause defines the intended meaning of an "officer" in relation to a body corporate.

The clause limits the time to bring proceedings for an offence committed under this Act may to within 3 years after the alleged offence, with the exception of indictable offences.

The clause clarifies the intent that this clause is not to apply to an officer undertaking a statutory function for or on behalf of a public land manager that is a body corporate.

36

Clause 128 amends section 189 of the Principal Act to clarify that a

"cultural heritage advisor" is to be called a "heritage advisor".

The clause clarifies the intent that, in addition to being appropriately qualified, a heritage advisor is required to be appropriately experienced in a discipline directly relevant to the management of Aboriginal cultural heritage.

The clause clarifies the intent that the Minister may make guidelines specifying appropriate qualifications and experience required of a heritage advisor.

Clause 129 amends section 191 of the Principal Act to provide for the intent that the State does not need to be a party to a cultural heritage agreement before the Minister may make an order remitting the whole or any part of land tax or rates payable by the landowner.

This reflects the fact that cultural heritage agreements between registered Aboriginal parties and private landowners will rarely involve the State as a party.

Clause 130 clarifies "inspectors" are to be called "authorised officers" in section 192 of the Principal Act.

Clause 131 repeals section 193 requiring the Minister to conduct a review of the operation of the Act to determine its efficacy and efficiency.

Clause 132 amends the regulation-making power in the Principal Act to provide that the Governor in Council may make regulations regarding applications for the certification of preliminary

Aboriginal heritage tests, prescribing fees for the evaluation of cultural heritage management plans, and for prescribing fees to be charged by the Secretary including those in relation to allowing access to and maintaining the register.

Clause 133 inserts savings and transitional provisions into a new section 198 of the Principal Act to provide the intent that Aboriginal people who become the owners of Aboriginal human remains under section 13 of the Principal Act are to be the traditional owners of the remains on and after the commencement of section 11 of the Bill.

The clause also provides that a person appointed as an inspector under section 160 of the Principal Act as in force immediately before the commencement of clause 99 of this Bill is taken to be an authorised officer on the commencement of that clause.

37

The clause also clarifies that the register kept under section 10(a) of the Archaeological and Aboriginal Relics Preservation

Act 1972 is and has always formed part of the Victorian

Aboriginal Heritage Register established under section 144 of the

Principal Act. This is intended to remove any doubt about the continuation of the former register as the current Register.

Clause 134 inserts various notes into the Principal Act to clarify where section 187A of the Bill applies to an offence under the Act.

Clause 135 amends Schedule 1 to the Borrowing and Investment Powers

Act 1987 to specify the relevant provisions of that Act that will apply with respect to the Aboriginal Heritage Council.

Clause 136 amends the Cemeteries and Crematoria Act 2003 to establish a definition of "Aboriginal ancestral remains" to be consistent with the Bill.

Clause 137 establishes which provisions of the Cemeteries and Crematoria

Act 2003 are no longer intended to apply in respect of the interment or cremation of Aboriginal ancestral remains.

The intention of this consequential amendment is to enable

Aboriginal people to bury or cremate Aboriginal ancestral remains on lands other than a cemetery without having to obtain a permit under the Cemeteries and Crematoria Act 2003 .

Clause 138 amends section 3 of the Coroners Act 1989 to add definitions for "Aboriginal ancestral remains" and "Aboriginal Heritage

Council" to be consistent with the Principal Act.

Clause 139 inserts and new section 16A into the Coroners Act 1989 to clarify the intent that a coroner must notify the Victorian

Aboriginal Heritage Council if, while investigating a death, the coroner believes a body is or is likely to be Aboriginal ancestral remains.

Clause 140 amends section 23 of the Coroners Act 1989 to clarify the intent that a coroner must notify the Victorian Aboriginal Heritage

Council, where a medical investigator has reported the identification of Aboriginal ancestral remains during a preliminary examination, of that report.

38

Clause 141 provides that the Bill is repealed on 1 August 2017. The repeal of this Bill does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984 ).

39

581069exi1 - Victorian Legislation and Parliamentary Documents

Aboriginal Heritage Amendment Bill

2015

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

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581069exi1 - Victorian Legislation and Parliamentary Documents

Aboriginal Heritage Amendment Bill

2015

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

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