Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au F2018L01579 Not in force Legislative Instrument

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Explanatory Statement

Issued by authority of the Minister for the Environment

 

Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) preserves and protects significant traditional areas, objects and remains, that are of particular significance to Aboriginal and Torres Strait Islanders, from injury or desecration. This includes an area of land in Australia or beneath Australian waters, an area of water in Australia or an area of Australian waters.

The Act recognises the body of traditions, observances, customs and beliefs of Aboriginal and Torres Strait Islanders generally or of a particular community or group therein, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

The Declaration  

Part II of the Act (Part II) provides for the protection of significant Aboriginal areas and objects. Under section 9 of the Act, the Minister may, by legislative instrument, make a declaration to preserve and protect a significant Aboriginal area that is under serious and immediate threat of injury or desecration.

 The Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018 (the Declaration) is an emergency declaration made under section 9 of the Act to preserve or protect Bellwood Sacred Site (the specified area).

On 16 December 2016, the former Minister for the Environment, the Hon Josh Frydenberg MP, received an application from the Nambucca Heads Local Aboriginal Land Council (the applicant) seeking the preservation or protection of the specified area from injury or desecration.

In making the Declaration, the Minister considered the application and was satisfied that the specified area is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration from a proposed subdivision and residential development by
Waifap Pty Ltd.

Broad consultation was not undertaken as the Declaration was required to be urgently made.  This Declaration is intended to be an interim measure and is only in place for 30 days while further assessment is undertaken. If appropriate, further consultation will occur as related applications are duly processed.

The Declaration is a legislative instrument for the purposes of the Legislation Act 2003.

The Declaration commences 19 November 2018.

 

 

Description of provisions

Part 1—Preliminary matters

Part 1 sets out the preliminary matters of the Declaration. 

Section 1 provides the name of the Declaration.

Section 2 provides the commencement information for the Declaration. 

Section 3 provides the authority under which this Declaration is made.

Section 4 provides the definitions used in this Declaration.

 

Part 2—Declaration

Part 2 of the Declaration provides for those matters required to be covered under sections 9 and 11 of the Act.

Section 5 provides the specified area to which the Declaration applies.

Section 6 is a provision for the purpose of paragraph 11(b) of the Act and provides for and in relation to the protection and preservation of the area from injury or desecration.

  • Subsection (1) provides that the specified area is to be preserved and protected from injury or desecration under section 9 of the Act.
  • Subsections (2) provides that a person must not carry out any works, which will or are likely to cause injury or desecration to the Area.  The provision also sets out a number of specified works which must not be carried out by a person:
    • undertake any action that will, or is likely to, adversely affect the use or significance of the specified area in accordance with Aboriginal tradition.
    • conduct any clearing activities, preliminary activities associated with clearing, or any other act that will, or is likely to, injure or desecrate the specified area.
  • The note clarifies that it is an offence under the Act if a person engages in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area.

Section 7 provides the period for which this Declaration is in force.  This Declaration is self-repealing and ceases to be in force the day after the period of effect ends.

 


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018

This Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Declaration

Section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 allows the Australian Government Minister for the Environment to make emergency declarations in relations to areas where the Minister receives a valid application, and is satisfied that the area is a significant Aboriginal area, and that it is under serious and immediate threat of injury or desecration, he or she may, by legislative instrument, make a declaration in relation to an area. 

This Declaration preserves and protects the significant traditional area of Bellwood Sacred Site from injury or desecration attributed to a proposed subdivision and residential development by Waifap Pty Ltd.

 

Human rights implications

This Declaration does not engage any of the applicable rights or freedoms.

 

Conclusion

This Declaration is compatible with human rights as it does not raise any human rights issues.

Overview

The Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018 was enacted to address the urgent need to protect the Bellwood Sacred Site from injury or desecration. This site, which holds significant cultural value for the Aboriginal and Torres Strait Islander communities, was under immediate threat from a proposed residential development. The Act under which this declaration was made, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, aims to preserve and protect significant traditional areas, objects, and remains that are of particular significance to Aboriginal and Torres Strait Islanders. The Declaration was made by the Minister for the Environment under section 9 of the Act, following an application by the Nambucca Heads Local Aboriginal Land Council. This legislative instrument is intended as an interim measure, effective for 30 days, to allow for further assessment and consultation if needed. The policy objective is to ensure the preservation and protection of the cultural heritage of Aboriginal and Torres Strait Islander communities.

Scope and Application

The Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018 applies specifically to the Bellwood Sacred Site in Australia, seeking to preserve and protect this significant traditional area from injury or desecration. Made under section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, this emergency declaration was enacted to address a serious and immediate threat posed by a proposed subdivision and residential development by Waifap Pty Ltd. The legislation targets any person or entity undertaking actions that could adversely affect the site, including clearing activities or any other act likely to injure or desecrate the area. The scope of the Act extends to any individual or entity conducting works that contravene the declaration, thereby protecting the cultural heritage of Aboriginal and Torres Strait Islanders. The Declaration is in force for 30 days, acting as an interim measure pending further assessment. The jurisdictional reach of the Act is national, applying across Australia, and it does not include any specific exclusions or exemptions as stated in the text. Any further application or enforcement of the Act may be extended or restricted through subordinate instruments.

Key Provisions

The Aboriginal and Torres Strait Islander Heritage Protection (Bellwood Sacred Site) Emergency Declaration 2018 (the Declaration) is an emergency measure enacted under section 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to safeguard a culturally significant area known as the Bellwood Sacred Site. This site is under immediate threat of desecration and injury due to a proposed subdivision and residential development by Waifap Pty Ltd. The Minister for the Environment, upon receiving an application from the Nambucca Heads Local Aboriginal Land Council, determined that the area warranted urgent protection. The Declaration is intended to be a temporary measure, effective for 30 days, during which further assessments and consultations can be conducted if necessary. The Declaration specifically outlines the obligations and prohibitions applicable to the Bellwood Sacred Site. Section 5 identifies the specified area that is subject to the emergency protection. Section 6(1) mandates the preservation and protection of this area from injury or desecration. Importantly, Section 6(2) prohibits any actions that may adversely affect the area's use or significance according to Aboriginal tradition, including any clearing activities or acts likely to injure or desecrate the site. The note in Section 6 clarifies that any contravention of the provisions in a declaration under Part II of the Act is an offence under the Act. The obligations imposed by the Declaration are clear and stringent. Any person, whether an individual or an entity, must refrain from carrying out any works or actions that may cause injury or desecration to the Bellwood Sacred Site. This includes avoiding any activities that could adversely affect the area's use or significance, such as clearing activities or any other acts likely to desecrate the site. Failure to comply with these provisions can result in legal consequences, as detailed in the underlying Act. The Act imposes penalties for breaches of its provisions. Engaging in conduct that contravenes the provisions of the Declaration, such as performing prohibited works or causing injury or desecration to the specified area, can lead to both civil and criminal consequences. The exact penalties may vary depending on the nature and severity of the breach, but the Act provides a framework for enforcing the protection of the Bellwood Sacred Site and ensuring that it remains preserved and respected.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.