Stated purpose:
This is a Bill to provide for the recognition, protection and management of Aboriginal heritage, to establish an Aboriginal Heritage Council, and to repeal the Aboriginal Relics Act 1975. The Bill creates an integral role for the Aboriginal community in managing their own heritage, including through the creation of the Aboriginal Heritage Council all of whose members are to be Aboriginal. The Bill also provides clear processes and statutory timeframes for developments, appeal rights, as well as an effective system. The Bill does not include the arbitrary cut-off of 1876 for recognising Aboriginal heritage, which the Aboriginal Relics Act contained.
For further information, please see the Second Reading Speech.
Relevant provisions:
s 5 Meaning of Aboriginal human remains
In this Act – Aboriginal human remains means the whole or any part of the bodily remains of an Aboriginal person, other than –
(a) a body or bodily remains buried –
(i) in a cemetery, within the meaning of the Burial and Cremation Act 2002; or
(ii) in other land as allowed by, and in accordance with the permissions required by, section 41 of the Burial and Cremation Act 2002; or
(b) an object made from human hair; or
(c) an object made from bodily material, other than human hair, that is not readily recognisable as being bodily material; or
(d) any human tissue dealt with in accordance with the Human Tissue Act 1985 or any other law of a State or a Territory or the Commonwealth relating to the medical treatment of human tissue; or
(e) any human tissue lawfully removed from an Aboriginal person.
s 6 Meaning of Aboriginal object
(1) In this Act – Aboriginal object means –
(a) any object in Tasmania that –
(i) relates to the Aboriginal occupation of any part of Australia, whether or not the object existed before that part of Australia was occupied by persons of non-Aboriginal descent; and
(ii) is of significance to the Aboriginal people of Tasmania; or
(b) any object, material or thing in Tasmania that –
(i) is removed or excavated from an Aboriginal site; and
(ii) is of significance to the Aboriginal people of Tasmania.
(2) Despite subsection (1), objects made, or likely to have been made, for the purposes of sale (otherwise than by way of barter or exchange in accordance with Aboriginal tradition) are not Aboriginal objects for the purposes of this Act.
(3) To avoid doubt, Aboriginal human remains are not Aboriginal objects for the purposes of this Act.
s 7 Meaning of Aboriginal site
In this Act – Aboriginal site means –
(a) an area of Tasmania that is of significance to the Aboriginal people of Tasmania; or
(b) unless the contrary intention appears, a part of an Aboriginal site.
s 29 Acts that harm Aboriginal heritage
(1) A person must not harm any Aboriginal heritage if the person knows that it is Aboriginal heritage.
Penalty: Fine not exceeding –
(a) 2 000 penalty units for an individual; or
(b) 10 000 penalty units for a body corporate.
(2) A person must not harm any Aboriginal heritage if the person is reckless as to whether it is Aboriginal heritage.
Penalty: Fine not exceeding –
(a) 1 300 penalty units for an individual; or
(b) 6 600 penalty units for a body corporate.
(3) A person must not harm any Aboriginal heritage if the person is negligent as to whether it is Aboriginal heritage.
Penalty: Fine not exceeding –
(a) 650 penalty units for an individual; or
(b) 3 300 penalty units for a body corporate.
(4) For the purposes of subsections (1), (2) and (3), it is immaterial whether the Aboriginal heritage is registered or unregistered.
(5) However, subsections (1), (2) and (3) do not apply if the relevant harmful act –
(a) is sanctioned by an Aboriginal heritage permit, approved management plan or external regulatory approval; or
(b) is necessarily incidental to the preparation of a recognised management plan, including the associated Aboriginal heritage assessment; or
(c) is carried out in an emergency under section 55 of the Electricity Supply Industry Act 1995; or
(d) is, otherwise, a necessary and proportionate response to an actual or impending emergency that threatens human life or property or threatens to injure any person; or
(e) is a necessary and proportionate response, in the circumstances prescribed by the regulations, to a threat of harm to Aboriginal heritage; or
(f) occurs in the course of a land activity done in accordance with the guidelines, including –
(i) any code, standards or guidelines; or
(ii) any part of a code, standards or guidelines – adopted, or adopted as modified, by the guidelines.
s 30 Acts likely to harm Aboriginal heritage
(1) A person is guilty of an offence if –
(a) the person does an act that is likely to harm any Aboriginal heritage; and
(b) the person knows, when doing the act, that the act is likely to harm Aboriginal heritage.
Penalty: Fine not exceeding –
(a) 1 300 penalty units for an individual; or
(b) 6 600 penalty units for a body corporate.
(2) It is immaterial, for the purposes of subsection (1), whether the Aboriginal heritage is registered or unregistered.
(3) However, subsection (1) does not apply if the harmful act –
(a) is sanctioned by an Aboriginal heritage permit, approved management plan or external regulatory approval; or
(b) is necessarily incidental to the preparation of a recognised management plan, including the associated Aboriginal heritage assessment; or
(c) is carried out in an emergency under section 55 of the Electricity Supply Industry Act 1995; or
(d) is, otherwise, a necessary and proportionate response to an actual or impending emergency that threatens human life or property or threatens to injure any person.