EXPLANATORY STATEMENT
ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE
PROTECTION REGULATIONS
Statutory Rules 1987 No. 153. Issued by the Authority of the Minister of State for Aboriginal Affairs.
These regulations are made under Section 32 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 which provides that the Governor-General may make regulations not inconsistent with the Act prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out a giving effect to the Act.
On request of the Government of Victoria, the Parliament of the Commonwealth has enacted the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 (the Act) (Act No. 39 of 1987, assented to on 5 June 1987) to make certain provision for the preservation of the Aboriginal cultural heritage in Victoria, and for related purposes.
Schedule of Local Aboriginal Communities
The Regulation varied the Schedule by:
(a) omitting “Cann River Aboriginal Cooperative”;
(b) omitting “and District” from “Lake Condah and District Co-operative Ltd.” and substituting “Aboriginal”; and
(c) omitting “West Gippsland Aboriginal Co-operative Ltd.”.
Sub-section 21A(2) of the Act provides that the schedule of organisations incorporated in or carrying on business in Victoria may be amended by regulation by adding or varying the name of such organisation.
Emergency declaration of preservation
The Regulation provides for a prescribed form and the details contained thereon which is to be used when making an emergency declaration of preservation.
Sub-section 21C (1) provides that an inspector appointed under this part of the Act, the Minister or a magistrate may make an emergency declaration in the prescribed form for a period not exceeding 44 days, where the inspector, the Minister or a magistrate has reasonable grounds to believe that an Aboriginal place or object is under threat of injury or desecration.
Compulsory acquisition
The Regulation sets out the manner in which the Minister may compulsorily acquire Aboriginal cultural property.
Section 21L provides that the Minister may compulsorily acquire any Aboriginal cultural property if such manner of acquisition is the only means of ensuring its continued preservation and maintenance. The property so acquired may be vested in the local Aboriginal community of the area where the property is found or if there is no such community, vested in the Minister on trust for Aboriginals in Victoria.
Sub-section 21L (1) of Part IIA of the Act provides that the Minister may acquire such property in accordance with the regulations.
Division 3 - Discovery and Disposal of Aboriginal Remains
The Regulation, for the purposes of Part IIA of the Act, prescribes the Museum of Victoria to be a prescribed authority for safekeeping.
Subsection 21P of the Act provides that a person discovering what are believed to be Aboriginal remains must report the find to the Minister. The Minister, when satisfied that the report relates to Aboriginal remains shall take reasonable steps to consult with any local Aboriginal community which may have an interest in the remains with a view to determining the proper action to be taken in relation to them. Where the remains are delivered to the Minister he shall return them to a local Aboriginal community entitled and willing to accept possession of them, dispose of them in accordance with any reasonable directions of a local Aboriginal community or transfer the remains to a prescribed authority for safekeeping.
Sub-section 21Q(1)(c) of Division 3 of Part IIA of the Act provides that the Minister will transfer the remains to a prescribed authority for safekeeping if there is no local Aboriginal community willing to accept them.
Inspectors
The Regulation sets out the form of the identity card and the details which must be provided by the inspector if it is not practicable to produce his card.
Section 21R of the Act provides that the Minister in writing, may appoint any person, after consultation with a local Aboriginal community, to be an inspector for the purpose of protecting Aboriginal places and objects from a threat of injury or desecration.
Sub-section 21R (2) of Part IIA of the Act provides that the Minister shall cause to be issued to each inspector an identity card in the form prescribed containing a photograph of the inspector. Where an inspector notifies a person of a declaration made by the inspector under sub-section 21(c) (1), he shall produce his identity card, or if he cannot produce his identity card, provide such particulars of his identity card as are prescribed.
Register
The Regulation sets out the persons who may be granted access and the circumstances in which the Register shall be open for inspection.
Section 21V of Part IIA of the Act provides that the Minister shall cause to be kept a register containing a summary of particulars of declarations of preservation made under this Part.
Sub-section 21V (2) of Part IIA of the Act provides for the register to be open for inspection to prescribed persons or in prescribed circumstances.