The Act amends the Aboriginal Heritage Act 2006 (Vic) to improve reporting requirements in relation to Aboriginal cultural heritage, to introduce provisions regarding Aboriginal intangible heritage, and to establish an Aboriginal Cultural Heritage Fund. The Act includes hundreds of amendments with five broad aims:
to increase Aboriginal self-determination,
make improvements for history,
improve Aboriginal cultural heritage management and protection,
improve enforcement and compliance, and
increase focus on Aboriginal intangible heritage.
Many definitions and terms are amended by this Act to bring them closer in line with Aboriginal conceptions and common use and understanding of those terms. One very significant aspect of these amendment is the protection of intangible Aboriginal cultural heritage.The Act allows for registered Aboriginal parties or Traditional Owners to nominate particular intangible heritage for registration. Once registered, anyone wishing to use that intangible heritage for their own purpose will require a formal agreement with the relevant traditional owner organisation. The Act also makes it an offence to knowingly use registered intangible Aboriginal cultural heritage for commercial purposes without consent. The penalties for this offence are up to $280, 000 for an individual and up to $1.5 million for a corporation.
The Act provides that intangible Aboriginal cultural heritage 'means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.'
Aboriginal parties will be given the power to evaluate cultural heritage permit applications. Public institutions such as museums and universities will have to declare to the Victorian Aboriginal Heritage Council any ancestral remains they possess and the Council will be in control of determining what happens to those ancestral remains. To protect sites, Aboriginal heritage officers will be empowered to stop works for 24 hours if they believe an offence has occurred or is likely to occur.
The Act clarifies for industry when a cultural heritage management plan is required, and allows for the creation of an Aboriginal advisory group where there is no registered Aboriginal party to consult with. To increase the deterrent effect of offence provisions and to enable greater enforceability, a new strict liability offence will be introduced. It will also now be an offence to commence an activity without a management plan where one was required, to fail to comply with a management plan, to misuse information obtained from the Aboriginal Heritage Register, or to fail to report ancestral remains to the Council.
For further information see the Explanatory Memorandum or Second Reading Speech.
Relevant provisions:
s 14 Reporting and transfer of Aboriginal ancestral remains in custody of public entities and universities
(1) Within 2 years of the commencement of section 12 of the Aboriginal Heritage Amendment Act 2016, a public entity or a university must—
(a) notify the Council in writing of any Aboriginal ancestral remains that are in its possession on the commencement of that section; and
(b) give a report in the prescribed form to the Council, including a list and details of the Aboriginal ancestral remains.
Penalty: 3000 penalty units. Note Section 187A applies to an offence against this subsection.
(2) The Council must, within 90 days of receiving a report under subsection (1), give notice of the report—
(a) to any relevant traditional owner of the Aboriginal ancestral remains referred to in the report; and
(b) to any relevant registered Aboriginal party.
(3) A public entity or a university must take all reasonable steps to transfer the Aboriginal ancestral remains into the custody of the Council as soon as practicable after giving a report to the Council under subsection (1).
(4) This section applies in addition to any other provision of this Act relating to the reporting and transfer of Aboriginal ancestral remains to the Council.
(5) In this section— public entity has the same meaning as in the Public Administration Act 2004.
s 60A Activity advisory groups
(1) The Secretary may appoint an activity advisory group for a proposed activity if—
(a) the Secretary receives a notice of intention to prepare a cultural heritage management plan under section 54; and
(b) the proposed activity in the plan is to be carried out in an area for which there is no registered Aboriginal party.
(2) If the Secretary appoints an activity advisory group under subsection (1), the Secretary must do so within 21 days of receiving a notice of intention to prepare a cultural heritage management plan.
(3) The Secretary must notify the sponsor of a cultural heritage management plan of the appointment of an activity advisory group for the proposed activity in the plan as soon as practicable after appointing the group.
(4) The function of an activity advisory group is to advise the Secretary on the proposed activity and its impact on Aboriginal cultural heritage.
(5) For the purposes of performing its function, an activity advisory group may do any of the following—
(a) consult with the sponsor and the heritage advisor in relation to the assessment of the area for the purposes of the plan;
(b) consult with the sponsor and the heritage advisor in relation to the conditions to be included in the plan;
(c) participate in the conduct of the assessment.
(6) The sponsor of a cultural heritage management plan and the heritage advisor must make reasonable efforts to consult with the activity advisory group before beginning the assessment and during the preparation of the plan.
(7) The Secretary may appoint representatives of any relevant traditional owners to an activity advisory group.
(8) A member of an activity advisory group is appointed on the terms and conditions (including remuneration and allowances) that are specified in the instrument of appointment.
s 79B What is Aboriginal intangible heritage?
(1) For the purposes of this Act, Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.
(2) Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).
s 79C Registration of Aboriginal intangible heritage
(1) A registered Aboriginal party, registered native title holder or a traditional owner group entity may apply to the Secretary for details of any Aboriginal intangible heritage to be recorded on the Register.
(2) An application under subsection (1) must be made in the prescribed form and include details of any consultation undertaken by the applicant with any relevant traditional owners.
(3) The Secretary must decide to approve or refuse to approve an application within 90 days of receiving the application.
(4) In considering the application, the Secretary must consult with, and consider the views of, the applicant and any Aboriginal person or Aboriginal body that the Secretary considers relevant to the application.
(5) The Secretary may request the applicant to provide any additional information that the Secretary reasonably considers necessary to assist the Secretary's decision.
(6) A request under subsection (5) must be made in writing and include the following information—
(a) the information to be provided;
(b) the date by which the information is to be provided, being at least 30 days after the request;
(c) a statement that the application will lapse if the information is not provided by that date.
(7) The period referred to in subsection (3)—
(a) ceases to run when the Secretary requests the additional information; and
(b) recommences to run when the information is provided to the Secretary.
s 79G Offence to use registered Aboriginal intangible heritage for commercial purposes
(1) A person must not knowingly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.
Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 10 000 penalty units.
(2) A person must not recklessly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.
Penalty: In the case of a natural person, 1200 penalty units; In the case of a body corporate, 6000 penalty units.
(3) This section does not apply to any Aboriginal intangible heritage that is the subject of a registered Aboriginal intangible heritage agreement.
s 95A 24-hour stop orders
(1) An authorised officer or an Aboriginal heritage officer may issue a 24-hour stop order to a person if—
(a) the person is carrying out, or proposes to carry out, an act; and
(b) the authorised officer or Aboriginal heritage officer is satisfied that there are reasonable grounds for believing that the carrying out of the act is harming, or is likely to harm, Aboriginal cultural heritage; and
(c) the authorised officer or Aboriginal heritage officer is satisfied that there are reasonable grounds for believing that the Aboriginal cultural heritage could not be properly protected unless a 24-hour stop order is issued.