Aboriginal Relics Preservation Act of 1967 (Qld)

181 (Queensland ANNO SEXTO DECIMO ELIZABETHAE SECUNDAE REGINAE No. 29 of 1967 An Act to provide for the Preservation of Anthropological, Ethnological , Archaeological and Prehistoric Aboriginal Relics [ ASSENTED TO 3RD NOVEMBER, 1967) BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART. I-PRELIMINARY 1. (1) Short title . This Act may be cited as " The Aboriginal Relics Preservation Act of 1967." (2) Commencement of Act. This Act shall come into operation on a date to be fixed by the Governor in Council by Proclamation published in the Gazette. 2. Division of Act. This Act is divided into Parts as follows:- PART I-PRELIMINARY; PART II-ADMINISTRATION; PART III-PRESERVATION AND PROTECTION OF RELICS; PART IV-GENERAL PROVISIONS.

182 Aboriginal Relics Preservation Act of 1967, No. 29 3. Meaning of terms. In this Act, unless the context otherwise indicates, the following terms have the meanings set against them respectively, that is to say:- "Aboriginal "-Pertaining to the indigenous inhabitants (whether Aborigines or Torres Strait Islanders) of the Commonwealth; " Aboriginal site "-An area of the State for the time being declared as an Aboriginal site or a temporary Aboriginal site or resumed or otherwise acquired by the Crown for the preservation or protection of a relic; " Anthropology "-Includes prehistoric study; ethnology, archaeology and " Committee "-The committee appointed under and for the purposes of this Act; " Crown land "-Land other than private land; " Deputy Director "-The Deputy Director of Aboriginal and Island Affairs under " The Aborigines' and Torres Strait Islanders' Affairs Act of 1965 "; " Director "-The Director of Aboriginal and Island Affairs under " The Aborigines' and Torres Strait Islanders' Affairs Act of 1965 "; " District officer "-A person appointed as such under " The Aborigines' and Torres Strait Islanders' Affairs Act of 1965 "; " Minister "-The Minister for Education of Queensland and any other Minister of the Crown who is, for the time being, charged with the administration of this Act: The term includes any person temporarily performing the duties of the Minister charged with the administration of this Act; " Occupier "-In relation to any land or premises, the person for the time being entitled to possession of the land or premises in question; " Owner "-In relation to private land in respect of which a grant in fee-simple has not, at the relevant time, been made, includes a lessee from the Crown; " Private land "-Land- (a) which has been alienated in fee-simple by the Crown; (b) in respect of which a right to a grant in fee-simple from the Crown- (i) has accrued to any person; or (ii) will accrue to any person upon the performance by him of a developmental or improvement condition; (c) an estate in fee-simple in which is being purchased from the Crown; " Relic "-Any Aboriginal remains and any trace, remains or handiwork within the State of Aboriginal culture: The term does not include such handiwork made for the purpose of sale for money. 4. Tribal rites unaffected by Act. (1) No provision of this Act shall prejudice- (a) the rights of ownership of any Aboriginal tribe or member of an Aboriginal tribe in relics used or held for use for tribal purposes;

Aboriginal Relics Preservation Act of 1967, No. 29 183 (b) in relation to a person who usually lives subject to Aboriginal tribal custom or law, his free access to and enjoyment of relics and his use thereof in such manner as is sanctioned by the- tribal custom or law relevant to such relics. (2) The provisions of subsection (1) of this section shall not be construed to authorize a person to sell a relic for personal gain unless he does so in the manner prescribed. PART I1-ADMINISTRATION 5. Administration of Act. This Act shall be administered by the Minister and, subject to him, by the Director, Deputy Director, district officers and such other persons as are from time to time appointed for the purposes of this Act. 6. Appointment of officers . (1) The Governor in Council may, by notification published in the Gazette, appoint such inspectors, wardens and other officers as he considers necessary for the purposes of this Act and may so appoint wardens in respect of the whole State or in respect of any Aboriginal site or area of the State as he considers desirable. A person appointed to serve in a paid, full-time capacity under this Act shall be appointed to and shall hold his appointment under and subject to " The Public Service Acts, 1922 to 1965." (2) The Director, Deputy Director and every district officer shall, without further appointment, be an inspector under this Act. (3) A warden shall serve as such in an honorary capacity and shall hold his appointment until- (a) he dies; or (b) his appointment is terminated by the Governor in Council by notice given to him; or (c) his resignation, in writing, is received by the Minister. (4) The Minister shall cause to be issued to every inspector and warden a card (in this Act called an " identity card ") wherein shall be specified the name of the inspector or warden to whom it is issued and the fact that he is an inspector or, as the case may be, a warden under this Act. In the exercise of his powers and the performance of his duties under this Act an inspector or warden shall carry his identity card for the purpose of his identification should the circumstances require it. An inspector or a warden shall, upon his ceasing to be such, surrender his identity card to the Minister. 7. (1) Powers of inspector . An inspector may- (a) require any person whom he finds committing or whom he reasonably suspects to be committing or to have committed an offence against this Act to state his full name and usual place of residence; (b) arrest such a person who, being required by an inspector so to do, fails to state his full name and usual place of residence or who states a name or place of residence which the inspector reasonably suspects to be false and detain such person until his full name and usual place of residence are ascertained;

184 Aboriginal Relics Preservation Act of 1967, No. 29 (c) search for, inspect and examine any relic; (d) seize any relic and retain it for the purpose of investigation or legal proceedings; (e) require a person whom he reasonably suspects as likely to damage a relic to leave an Aboriginal site. (2) Powers of warden . A warden shall have and may exercise the powers conferred on an inspector by paragraphs (a), (c), (d) and (e) of subsection (1) of this section but, where he is appointed in respect of an Aboriginal site or limited area of the State, only within such site or area. (3) Power of entry. For the purpose of exercising any of his powers under this Act an inspector may enter any place and, to that end, may use such force as is reasonable: Provided that he shall not, by reason of this subsection (or any other provision of this Act), be empowered to enter any dwelling-house or part used exclusively for residential purposes of any building save under the authority of a search warrant or with the permission of the occupier of such dwelling-house or, as the case may be, part. 8. Offences touching administration . (1) A person shall not assault an inspector or warden who is exercising any of his powers under this Act or is attempting so to do. Penalty: Two hundred dollars or imprisonment for six months or both. (2) A person shall not fail to comply with a requisition. directed to him by an inspector or warden in the exercise of a power under this Act or, in response to such a requisition, give any information which is false or misleading. Penalty: One hundred dollars. (3) A person shall not hinder or resist an inspector or warden who is exercising any of his powers under this Act or is attempting so to do. Penalty: One hundred dollars. PART Ill-PRESERVATION AND PROTECTION OF RELICS 9. Advisory committee . From time to time for the proper performance of its functions under this Act there shall meet a committee which shall consist of such members as the Governor in Council from time to time notifies in the Gazette. Until the Governor in Council otherwise notifies such committee shall consist of- (a) the Director; (h) the Professor of Anthropology and Sociology at the University of Queensland; (c) the Director of the Queensland Museum; (d).one or more persons nominated by the Minister as he from time to time determines. 10. (1) Chairman of committee . The chairman and executive member of the committee shall be the Director or if, at any time, he or his nominee (hereafter provided for) is not a member of the committee, such other member as the Governor in Council from time to time notifies in the Gazette.

Aboriginal Relics Preservation Act of 1967, No. 29 185 (2) Conduct of business of committee . The business of the committee shall be conducted in such manner as is prescribed and, until so prescribed, in such manner as the committee, by resolution, approves. (3) Service of members . Members of the committee shall serve in an honorary capacity. 11. Appointment of nominees . (1) A person who, by reason of his holding a particular appointment (not being, himself, a nominated person) is a member of the committee may nominate another to be a m^mber of the committee in his stead. Such a nomination may be made in respect of an indefinite or limited period or in respect of a particular meeting or series of meetings of the committee and may be revoked at any time by the nominator. (2) For so long as a nomination remains in force the nominee thereunder shall be a member of the committee in the stead of and with the same rights, powers, duties, functions and status (including that of chairman and executive member) as his nominator: Provided that nominator and nominee shall not both attempt at the same time to exercise or perform any right, power, duty or function as a member of the committee. 12. Functions of committee . As and when it is so required by the Minister, the committee shall advise him on- (a) the anthropological value and significance of a relic or of an area which is such that it might be declared as an Aboriginal site ; (b) the desirability of declaring an area as an Aboriginal site or of resuming or otherwise acquiring an area for preservation as an Aboriginal site or of acquiring a particular relic; (c) the extent of an area which, in a particular case, should be declared or resumed or, as the case may be, acquired for preservation as an Aboriginal site; (d) all other matters pertinent to the objects of this Act. 13. Declaration of Aboriginal sites. If the Governor in Council is satisfied with respect to any area of land that- (a) it is expedient to reserve such area for the preservation or protection of a relic; and (b) for such preservation or protection it is necessary to prevent or control the entry of persons into such area; and (c) satisfactory arrangements have been made or will be made for the maintenance of the area as an Aboriginal site and for preventing or, as the case may require, controlling the entry of persons into such area; and (d) the consents required by this Act to be obtained have been obtained, he may, by Order in Council, declare such area as an Aboriginal site. If the Governor in Council is satisfied that it is no longer expedient to maintain an Aboriginal site so declared or any part thereof he may, by Order in Council, declare that the area in question has ceased to be an Aboriginal site and thereupon such area shall cease to be an Aboriginal site.

186 Aboriginal Relics Preservation Act of 1967, No. 29 14. Consents to declaration of Aboriginal sites . The Governor in Council shall not declare an area as an Aboriginal site unless- (a) where such area or part thereof is situated on Crown land (other than land referred to in provision (b) of this section), the Minister for Lands of Queensland has consented thereto; or (b) where such area or part thereof is situated on land to which " The Forestry Acts, 1959 to 1964 " apply, the Minister of the Crown charged with the administration of those Acts has consented thereto; or (c) where such area or part thereof is situated on private land, the occupier and, where he is not the owner, the owner also has consented thereto. 15. Declaration of temporary Aboriginal sites . If the Governor in Council is satisfied that it may become expedient to reserve a particular area of land for the preservation or protection of a relic and that it is necessary, in the meantime, to prevent or control the entry of persons into such area he may, by Order in Council, declare such area as a temporary Aboriginal site. A temporary Aboriginal site shall cease to be such upon the expiration of six months after its declaration as such unless, in the meantjme, it has been declared as or has otherwise become an Aboriginal site and in the event of such cesser by efxluxion of time shall not be further declared to be a temporary Aboriginal site. 16. Purchase and resumption of land . Notwithstanding the provisions of this Act or of any other Act, when the Minister is satisfied that there is on or under any private land a relic which cannot be properly preserved or protected by the maintenance of the area in question as an Aboriginal site declared as such under this Act the Crown may purchase or, subject to and in accordance with " The Public Works Land Resumption Acts, i906 to 1955," take such area as is necessary for the preservation or protection of such relic. Such preservation or protection shall be deemed to be works within the meaning of those Acts. 17. Marking of Aboriginal sites . (1) Upon any area of land becoming an Aboriginal site the Director- (a) may cause the boundaries of such area to be delineated by the erection thereon of suitable notices or boundary marks; and (b) may erect such other structures as he deems necessary to protect such area or any relic therein, and, for so long as such area exists as an Aboriginal site or, as the case may be, such other structure is needed, shall cause such notices, marks or other structures as are erected to be maintained in a reasonable state of repair. (2) A person shall not destroy, damage, move or interfere with any notice, boundary mark or other structure erected pursuant to subsection (I) of this section. Penalty: Two hundred dollars.

Aboriginal Relics Preservation Act of 1967, No. 29 187 Upon conviction of a person of an offence against this subsection the adjudicating court may, whether or not it imposes a penalty in respect thereof, order the defendant to pay such sum as the court thinks just by way of compensation for the expenses of re-erecting, repairing and restoring such notice, mark or structure occasioned by such offence. An order made under the last preceding paragraph shall not prejudice the right of the Crown or of any person to recover the amount of such expenses in full by any other process of law save that the defendant shall not be required to pay the same amount of expenses more than once. (3) The fact that a notice or boundary mark is not or was not at the relevant time erected or is not or was not at the relevant time in a reasonable state of repair as required by subsection (1) of this section shall be deemed immaterial to the liability of any person as for an offence against any provision of this Act and to the reasonableness of a belief as to the existence or non-existence of an Aboriginal site. 18. Relics to be property of Crown. Subject to section four of this Act and notwithstanding that it is situated in or on land which either before or after the date of commencement of this Act has become private land, a relic shall be and be deemed to be the property of the Crown save where it is shown that- (a) in respect of a relic found within the State, it was, at the date of commencement of this Act, in the possession of some person and has not become abandoned within the State since that date; or (b) in respect of a relic found outside the State, it has not since become abandoned within the State; or (c) it was delivered to a person pursuant to the provisions of section twenty-two of this Act and has not since become abandoned within the State. For the purposes of this section a relic shall not be deemed to be in the possession of any person by reason only of the fact that it is on or under land or premises owned or occupied by him. 19. Trespassing prohibited . (1) A person shall not be upon an Aboriginal site save with the subsisting permission of an authorized person. Penalty : One hundred dollars. The following persons are authorized persons for the purposes of this section:- (a) in respect of Crown land, the Minister; (b) in respect of private land, the Minister, the occupier or the duly constituted attorney of the occupier or other agent of the occupier authorized by him to give such permission. (2) A permission of an authorized person to be upon an Aboriginal site- (a) may be granted in respect of a particular person or in respect of a class of person; (b) shall continue to subsist until it is revoked by such authorized person or his successor or, in the case of a permission granted by an authorized person other than the Minister, by the Director (he being hereby empowered so to do in his absolute discretion);

188 Aboriginal Relics Preservation Act of 1967, No. 29 (c) shall not authorize any person to take, deface, damage, uncover, expose, excavate or interfere with any relic. (3) Revocation of such a permission shall be effected by notice in writing given- (a) in the case of a permission granted to a person in connection with his conduct of any business, to the proprietor for the time being of that business; (b) in any other case, to the person to whom such permission was granted or, if that be impracticable, by way of publication twice in a newspaper circulating in the area in which the Aboriginal site is situated. 20. Interference with relics prohibited . (1) A person shall not take, deface, damage, uncover, expose, excavate or interfere with or be in possession of a relic the property of the Crown or, upon an Aboriginal site, do any act likely to endanger any relic thereon or thereunder unless- (a) he is thereunto authorized under this Act; or (b) he does not know or suspect the same to be a relic. Penalty: Two hundred dollars. Upon conviction of a person of an offence against this subsection the adjudicating court, if requested on behalf of the Crown so to do, may, whether or not it imposes a penalty in respect thereof, order the defendant to pay such sum as the court thinks just by way of restitution for such relic or compensation for damage occasioned to such relic by such. offence. Upon payment of the sum so ordered to be paid the defendant shall not be further liable on account of such damage. (2) Liability to a penalty under subsection (1) of this section shall be in addition to any other such liability at law which the offender may incur by reason of the act in question but in no case shall he be punished more than once in respect of the same act. 21. Excavation of relics. (1) The Minister may cause to be performed the excavation and examination of an Aboriginal site and of any relic thereon or thereunder and may cause the removal of relics from an Aboriginal site to safe storage. (2) A person who desires to perform excavation, examination or research for anthropological purposes upon an Aboriginal site or in respect of any relic shall apply in writing to the Minister for his authority so to do and shall, in connection with such application, furnish to the Minister such information as the Minister requires. The Minister shall refer such an application to the committee which shall recommend to the Minister whether or not such application should be granted having regard to- (a) the qualifications of the applicant to properly attain the purpose to which such application relates; (b) the desirability of carrying out excavation, examination or research upon the Aboriginal site in question or in respect of the relic in question; (c) the financial resources of or available to the applicant and his ability to attain the purpose to which such application relates;

Aboriginal Relics Preservation Act of 1967 , No. 29 189 (d) all other matters which the committee considers to be relevant to such application. (3) If the committee recommends that such an application be granted the Minister may, in writing, authorize the applicant to pursue the purpose to which his application relates. Such an authority- (a) shall specify the name of the person to whom it is granted and the Aboriginal site in respect of which it is granted; (b) shall be of no force or effect in respect of any part of an Aboriginal site which part is situated on private land unless the occupier and, where he is not the owner, the owner also has consented in writing to the grant of such authority; (c) shall not in any case remain in force for a period in excess of twelve months from the date of its grant or, as the case may be, renewal, but may be renewed, from time to time, upon the application of the person to whom it is for the time being granted. Every application for renewal of such an authority shall be in such form and shall be dealt with in such manner as if it were an application in the first instance for such an authority. (4) While such an authority remains in force, the person to whom it is granted may enter the Aboriginal site specified therein as often as is necessary to attain the purpose he is thereby authorized to pursue and may there take with him such assistants, vehicles and equipment as he needs for such purpose and may there, in a proper manner, perform such excavation, examination and research and, subject to this Act, remove and interfere with relics on or under such Aboriginal site as is necessary for the attainment of such purpose: Provided that such person shall not be authorized by such an authority to wilfully or negligently destroy or injure any property except where such destruction or injury is necessarily incidental to the work he is authorized to perform. (5) By notice in writing given to a person to whom such an authority is for the time being granted the Minister may call upon such person to show cause why the authority should not be revoked and, if such cause is not shown to the Minister's satisfaction within twenty-eight days after the giving of such notice, the Minister may, by writing given to such person, revoke the authority which thereupon shall cease to be of any force or effect. (6) A person who performs excavation, examination or research under the authority of the Minister granted under this section and who thereafter publishes or causes to be published any writing in respect of such work shall, as soon as possible after such publication, furnish to the Minister, free of charge, a copy of such writing. 22. Method of disposing of relic taken under authority . (1) A person who, pursuant to an authority granted under subsection (3) of section twenty-one of this Act, removes a relic from the Aboriginal site where he finds it shall, as soon as practicable, surrender it to the Director for inspection and classification by the committee. Upon classification of the relic the committee shall determine whether or not the relic should be retained by the Crown.

190 Aboriginal Relics Preservation Act of 1967, No. 29 A relic which the committee determines should be retained by the Crown shall be preserved and protected, so far as circumstances permit, in such place as the Minister directs. A relic which the committee determines should not be retained by the Crown shall be returned to the person by whom it was surrendered but should he not want it or if, for any reason, it cannot be returned to him it shall be disposed of in such manner as the Minister directs. (2) Notwithstanding that it has been determined that a particular relic should be retained by the Crown, the Minister may, upon the recommendation of the committee, permit a person approved by him to take possession of such relic and, if necessary, to remove the same from the State, for such time, in such circumstances and for such purpose as the Minister approves. A person so permitted shall comply in all respects with the conditions imposed by the Minister upon the permit in question. 23. Report on existence of relics. A person who has knowledge of the existence of any thing in the nature of Aboriginal burial grounds, cave paintings, rock engravings, stone structures, arranged stones or carved trees which he knows or suspects to be a relic shall report its existence to an inspector under this Act. A person shall not be taken to have failed to comply with the preceding paragraph of this section if it be proved that he reasonably believed the existence of the thing in question was already known to an inspector under this Act. 24. Powers of Minister for preservation , & c., of relics . (1) The Minister may- (a) purchase or otherwise acquire on behalf of the Crown any relic (other than land) for the purpose of its preservation or protection; (b) cause such structures to be erected and such steps to be taken as are necessary to preserve or protect a relic; (c) upon the written request of the owner of private land any part whereof has been declared to be an Aboriginal site that such site or any part thereof, cease to be an Aboriginal site, if he is satisfied that no substantial loss of relics will thereby result and that loss of the site will not constitute a substantial loss to anthropology, cause the removal of relics on or under such Aboriginal site or part so situated to safe storage. (2) Upon the removal of all relics which the Minister desires to remove pursuant to paragraph (c) of subsection (1) of this section the Governor in Council shall, in manner prescribed, declare that the area in question has ceased to be an Aboriginal site. 25. Incidental power of entry . Where for the purpose of exercising or performing a power conferred or duty imposed by or under this Act it becomes necessary to enter upon any Crown land or any private land a person engaged therein may, without other authority than this Act, enter upon such land as often as is necessary for the purpose. The power conferred by this section shall not be construed to authorize entry into any building.

Aboriginal Relics Preservation Act of 1967, No. 29 191 PART IV-GENERAL PROVISIONS 26. Preservation , & c., of relics a public purpose . The preservation and protection of relics shall be deemed to be a public purpose within the meaning of " The Land Acts, 1962 to 1967." 27. Service of notices , &c. A notice or writing required by this Act to be given to any person shall be deemed to have been duly given by- (a) serving the same personally upon the person to whom it is directed or, in the case of a company, upon its secretary or a member of its governing body; or (b) sending the same by prepaid post letter to the place of abode or business of the person to whom it is directed last known to the Director. 28. (1) Offences . A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act and is liable to the penalty prescribed therefor or, where a penalty is not expressly prescribed, to a penalty of one hundred dollars. A prosecution for such an offence shall be by way of summary proceedings under " The Justices Acts, 1886 to 1965." (2) Forfeiture of relics . When a person is convicted of an offence constituted wholly or in part of taking or being in possession of a relic the property of the Crown and such relic is exhibited before the adjudicating court the court shall order that such relic be delivered to the Director. A relic so delivered shall be dealt with as if it had been surrendered for inspection and classification by the committee under section twenty- two of this Act save that if the committee determines that it should not be retained by the Crown it shall be disposed of in such manner as the Minister directs. 29. Evidentiary aids . An allegation in any charge that- (a) an object or thing is a relic; (b) an area is or was at any relevant time an Aboriginal site; (c) a person is or was at any relevant time an inspector or warden under this Act, shall be evidence and, in the absence of evidence to the contrary, conclusive evidence of the truth of such allegation at the time relevant to such charge. 30. (1) Regulations . The Governor in Council may make regulations, not inconsistent with this Act, providing for all matters which, by this Act, are required or permitted to be prescribed or which are necessary or desirable for the administration of this Act or for achieving the objects and purposes of this Act. (2) Publication of regulations , &c. Every regulation and every Order in Council made under this Act shall- (a) be published in the Gazette; (b) upon such publication be judicially noticed and such publication shall be conclusive evidence of the matters contained therein;

192 Aboriginal Relics Preservation Act of 1967, No. 29 (c) take effect on and from the date of such publication unless a later date is specified therein for its commencement when, in such event, it shall take effect on and from that later date; and (d) be laid before the Legislative Assembly within fourteen sitting days after such publication if the Legislative Assembly is in session and, if not, then within fourteen sitting days after the commencement of the next session of the Legislative Assembly. (3) If the Legislative Assembly passes a resolution of which notice has been given at any time within fourteen sitting days after a regulation or Order in Council has been laid before it disallowing such regulation or Order in Council or any part thereof such regulation, Order in Council or, as the case may be, part shall thereupon cease to have any force or effect but without prejudice to the validity of anything done or omitted to be done in the meantime or to the making of a further regulation or Order in Council.