EXPLANATORY STATEMENT
Issued by authority of the Minister for the Environment and Water
Aboriginal and Torres Strait Islander Heritage Protection (Huskisson Churchyard) Emergency Declaration 2022 - Extension
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 in 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 thereof, including any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
The Declaration Extension
The purpose of this Declaration Extension is to preserve and protect the significant Aboriginal area at the former Anglican Holy Trinity Church grounds in Huskisson, New South Wales (the specified area).
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 an emergency 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 (Huskisson Churchyard) Emergency Declaration 2022 - Extension (the Declaration Extension) is an emergency declaration extension made under section 9(3) of the Act to preserve or protect an area of the former Anglican Holy Trinity Church grounds in Huskisson, New South Wales (being the specified area).
On 14 September 2022, the Minister for the Environment, the Hon Tanya Plibersek MP, received an application from Mr Alfred Wellington on behalf of the Jerrinja Local Aboriginal Land Council (JLALC) (the applicant) seeking the preservation or protection of the specified area from injury or desecration.
On 15 November 2022, the Minister made an emergency declaration to protect the specified area for 30 days.
In making this declaration, the Minister considered the application and was satisfied, for the purposes of section 9, that the specified area is a significant Aboriginal area that is under serious and immediate threat of injury or desecration from planned archaeological investigations.
There has been no relevant change in circumstances and consequently, in making the Declaration Extension the Minister continued to be satisfied that the specified area is a significant Aboriginal area and that it is under serious and immediate threat of injury or desecration from planned archaeological investigations.
The purpose of the Declaration Extension is to continue in effect the emergency declaration in relation to the specified area for further period of 30 days beyond the day on which it would otherwise cease to have effect in accordance with its terms.
Broad consultation was not undertaken as the Declaration Extension was required to be urgently made.
The Declaration Extension is intended to be an interim measure and only provides for the emergency declaration to remain in effect for a further period of 30 days while further assessment is undertaken. If appropriate, consultation will occur as related applications are duly processed.
The Declaration Extension is a legislative instrument for the purposes of the Legislation Act 2003.
The Declaration Extension commences on the day after registration.
Description of provisions
Section 1 provides the name of the Declaration Extension.
Section 2 provides the commencement information for the Declaration Extension.
Section 3 provides the authority under which this Declaration Extension is made.
Section 4 provides the definitions used in this Declaration Extension.
Sections 5-8 of the Declaration Extension provide for matters required to be covered under sections 9 and 11 of the Act.
- Section 9 of the Act provides for the Minister to make emergency declarations in relation to the protection of significant Aboriginal areas.
- Section 11 of the Act provides that a declaration made under section 9 or 10 of the Act should describe the area with sufficient particulars to enable the area to be identified and contain provisions for and in relation to the protection and preservation of the area from injury or desecration.
Section 5 provides the specified area to which the Declaration Extension applies.
Section 6 provides for and in relation to the extension of the emergency declaration 9(3) of the Act.
Section 7 provides that the Declaration Extension is in force for 30 days beginning on the date the Declaration Extension commences. Under section 8, the Declaration Extension is self-repealing and is repealed at the end of the 30-day period the Declaration Extension is in force.
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 (Huskisson Churchyard) Emergency Declaration 2022 - Extension
This Declaration Extension is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliament Scrutiny) Act 2011.
Overview of the Declaration Extension
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 and extensions. Where the Minister receives a valid application in relation to a specified area and is satisfied that the specified area is a significant Aboriginal area, and that it is under serious and immediate threat of injury or desecration, the Minister may, by legislative instrument, make an emergency declaration in relation to the specified area. Where the Minister is satisfied that it is necessary to do to, the Minister may, by legislative instrument, extend the declaration not beyond 60 days after the day the declaration came into effect.
This Declaration Extension preserves and protects the significant Aboriginal area at the former Anglican Holy Trinity Church grounds in Huskisson, New South Wales from the serious and immediate threat of injury or desecration attributed to planned archaeological investigations.
Human rights implication
This Declaration Extension does not engage any of the applicable rights or freedoms.
Conclusion
This Declaration Extension is compatible with human rights as it does not raise any human rights issues.