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.
Overview
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 was enacted by the Parliament of the Commonwealth in response to a specific need to address the preservation of Aboriginal cultural heritage in Victoria. This legislation was introduced to enhance the protection of Aboriginal sites and objects against injury or desecration and to ensure their proper management. Under the authority of the Minister of State for Aboriginal Affairs, these regulations were made to provide detailed procedures and mechanisms for the protection and management of Aboriginal heritage. The overarching policy objective of the Act is to safeguard the cultural heritage of Aboriginal and Torres Strait Islander communities, ensuring that their heritage is preserved and respected in accordance with their cultural practices and beliefs. The regulations detail the process for making emergency declarations of preservation, the compulsory acquisition of cultural property, the discovery and disposal of Aboriginal remains, and the appointment and responsibilities of inspectors, among other provisions.
Scope and Application
The Aboriginal and Torres Strait Islander Heritage Protection Regulations, issued under Section 32 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, focus on the preservation and protection of Aboriginal cultural heritage within the jurisdiction of Victoria. These regulations apply to persons and entities involved in activities that may impact Aboriginal cultural sites and objects, including those incorporated in or carrying on business in Victoria. The regulations specify the process for emergency declarations of preservation, where an inspector, the Minister, or a magistrate can declare a site or object under threat, and outline the form and details required for such declarations. Additionally, the regulations address the compulsory acquisition of Aboriginal cultural property, the reporting and handling of Aboriginal remains, and the appointment and duties of inspectors. They also detail the form and contents of inspector identity cards, the establishment and access to a register of preservation declarations, and the designation of the Museum of Victoria as a prescribed authority for the safekeeping of remains. The regulations are designed to ensure the preservation of Aboriginal cultural heritage in Victoria, with amendments to the schedule of local Aboriginal communities reflecting changes in their status and names.
Key Provisions
The main operative sections of the Aboriginal and Torres Strait Islander Heritage Protection Regulations (Statutory Rules 1987 No. 153) include the amendment of the schedule of local Aboriginal communities (Schedule, (a)-(c)), the procedures for making an emergency declaration of preservation (Schedule, (2)), the process for compulsory acquisition of Aboriginal cultural property (Section 21L), the procedures for the discovery and disposal of Aboriginal remains (Part IIA, Division 3), the appointment and duties of inspectors (Section 21R), and the maintenance of a register of declarations of preservation (Section 21V). These sections provide the framework for the preservation, protection, and management of Aboriginal cultural heritage in Victoria.
The Act imposes specific obligations and requirements on various parties and entities. For instance, local Aboriginal communities are recognised as key stakeholders in the preservation and management of Aboriginal cultural heritage. Inspectors, appointed under Section 21R, are responsible for protecting Aboriginal places and objects from threats of injury or desecration. The Minister is tasked with various duties, including making emergency declarations of preservation, acquiring cultural property compulsorily if necessary, reporting and managing the discovery of Aboriginal remains, and maintaining a register of preservation declarations. Additionally, any person who discovers what are believed to be Aboriginal remains must report the find to the Minister, as stipulated in Section 21P.
The Regulations also outline specific offences and penalties for breaches. While the Act does not explicitly state the penalties for breaches, Section 21R(2) mentions the requirement for inspectors to provide their identity when necessary. Failure to comply with these regulations or obligations could potentially lead to legal consequences, although the specific penalties are not detailed within the text provided. It is important to note that breaches of heritage protection laws can lead to civil and criminal consequences, including fines and imprisonment, depending on the severity and nature of the breach.
The Regulations also provide for the compulsory acquisition of Aboriginal cultural property by the Minister if it is the only means of ensuring its continued preservation and maintenance. Such property 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. This ensures that the cultural property is protected and maintained appropriately. Furthermore, the Regulations set out the form and details for the identity card of inspectors, ensuring that they can be identified and their authority verified when necessary.
Finally, the Regulations establish the Museum of Victoria as a prescribed authority for the safekeeping of Aboriginal remains. This ensures that any remains discovered are handled and stored in a manner that respects their cultural significance and preserves them for future generations. The Regulations also outline the process for the Minister to consult with local Aboriginal communities when Aboriginal remains are discovered, ensuring that the communities have a say in how the remains are handled and managed.