The stated purpose of the Bill is to facilitate improvements to the administration of the Aboriginal Heritage Act 1972 and the preservation of places to which the Act applies.
The proposed Amendments have met widespread opposition from Traditional Owners and Native Title Organisations. There are concerns that the administrative changes simplify the process by which persons can seek permission to destroy or damage Aboriginal sites without the consent of the relevant Aboriginal people.
For more information on the Bill, please see the Explanatory Memorandum.
Relevant provisions:
s 17 Offences relating to Aboriginal sites
(1) A person must not —
(a) excavate, destroy, damage, conceal or in any way alter any Aboriginal site; or
(b) in any way alter, damage, remove, destroy or conceal any object on or under an Aboriginal site; or
(c) deal with in a manner not sanctioned by relevant custom any object on or under an Aboriginal site; or
(d) assume the possession, custody or control of any object on or under an Aboriginal site.
(2) A person who contravenes subsection (1) commits an offence and is to be sentenced under section 57.
(3) It is a defence to a charge of an offence under subsection (2) for the accused person to prove on the balance of probabilities —
(a) the accused was acting in accordance with an authorisation given under section 16; or
(b) the accused was acting in accordance with a permit; or
(c) the place where the alleged offence occurred was the subject of a declaration.
s 18A Application for permit to do act that might contravene s. 17
(1) A person who, on land on which there might be an Aboriginal site or an object to which this Act applies,
proposes to do an act that might contravene section 2 may apply for a permit to do the act on the land.
(2) An application must —
(a) be in writing in a form approved by the CEO; and
(b) describe the land to which it relates; and
(c) describe the proposed act that might contravene section 17; and
(d) contain any other information the form requires or that is prescribed; and
(e) be made to the CEO; and
(f) be accompanied by the prescribed fee, if any.
(3) On an application made in accordance with subsection (2), the CEO must deal with the application in accordance with the regulations and do one of the following —
(a) if the CEO is of the opinion that there is no Aboriginal site on the land, the CEO may —
(i) issue a declaration under section 18C; or
(ii) decide not to issue a declaration under section 18C, and in that case the CEO must notify the applicant of that decision;
(b) whether the CEO is of the opinion that there is an Aboriginal site on the land or that there is no Aboriginal site on the land, the CEO may give the applicant a permit under section 18 if the CEO is satisfied that —
(i) the proposed act would not destroy or significantly damage or alter any Aboriginal site on the land or any object to which this Act applies on or under any Aboriginal site on the land; and
(ii) there is no significant risk that the proposed act would adversely affect the importance and significance of any Aboriginal site on the land;
(c) if the CEO is of the opinion that there is an Aboriginal site on the land, the CEO may refer the application to the Committee, and, if he or she does so, the CEO must provide the Committee with —
(i) a copy of all information that relates to the land and that was made available to the CEO for the purpose of deciding what to do under this subsection; and
(ii) any other prescribed information;
(d) refuse the application for a permit.
(4) The CEO may refer the application to the Committee even though the CEO considers that subsection (3)(b) applies, but only if the CEO is of the opinion that there is an Aboriginal site on the land.
(5) The CEO may exercise different powers under subsection (3) in respect of different parts of the land.