EXPLANATORY STATEMENT
ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION REGULATIONS
Statutory Rules 1989 No. 420. 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 or 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.
The Regulation provides that the description of the boundaries of the community areas specified in Schedule 4 are the areas of the local Aboriginal communities as defined in sub-section 21A(1) of the Act.
The Regulation amended the Schedule to the Act by:
(a) omitting “Bendigo Dja Dja Wung” and substituting “Bendigo Dja Dja Wrung”;
(b) inserting “and” after “Sunraysia”;
(c) by omitting “Lake Tyres” and inserting “Lake Tyers”; and
(d) inserting “West Gippsland Aboriginal Co-operative Ltd” after “Wathaurong Aboriginal Co-operative Ltd.”
The Regulation provides for the type of information to be provided where an inspector or the Minister makes, varies or revoke an emergency declaration, or by a magistrate where an application by a local Aboriginal community for an emergency declaration is made.
Section 21C provides for the making of an emergency declaration of preservation where a place or object is under threat of injury or desecration. Where an emergency declaration is varied or revoked all reasonable steps are to be taken to notify any person who is likely to be affected.
The Regulation provides for a notice of advice or determination to contain information which identifies the person to whom a notice is given, the contents of the advice or determination, and a description of any land to which the advice or determination relates. The notice will also be signed by the person giving the notice.
Section 21D and 21E provides for the Minister to make temporary declarations and declarations of preservation following receipt of advice from a local Aboriginal community, or on his own determination that such a declaration of preservation should be made. Sub-sections 21D(2)(a) or 21E(2)(a) provide that the notice of advice or the Minister’s determination shall, within 14 days, be given to any person who is likely to be affected by the making of a declaration.
The Regulation provides for the type of information to be included in temporary declarations and declarations of preservation.
Sections 21D and 21E provide for the Minister to make the declaration in writing and to specify the terms of the declarations and the manner of preservation to be adopted.
The Regulation provides that where the Minister has decided to make a temporary declaration, or to vary or revoke the temporary declaration, notice will be given in the manner prescribed in the Regulation.
Section 21D provides for the Minister, when making temporary declarations of preservation, to give notice of the making, variation or revocation of the declaration.
The Regulation provides that consent to deface an Aboriginal object or Aboriginal place must be in writing, and include the name and address to whom the consent is given, as well as to provide a description of the land to which the consent relates.
Section 21U provides that a person shall not wilfully deface, damage or otherwise interfere with or do any act likely to endanger an Aboriginal object or Aboriginal place without first obtaining the consent of the local Aboriginal community.
Schedule 4 of the Regulations provide for description of the boundaries of a number of community areas listed in the Schedule to the Act.
Overview
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 was enacted by the Parliament of the Commonwealth in response to the need for the preservation of Aboriginal cultural heritage in Victoria. This legislation was assented to on 5 June 1987, aiming to address gaps in the protection of Aboriginal cultural heritage and to provide for related purposes. The Act was issued under the authority of the Minister of State for Aboriginal Affairs and includes specific regulations as outlined in Statutory Rules 1989 No. 420. These regulations were formulated to assist in carrying out or giving effect to the Act, ensuring that they are not inconsistent with its provisions. The overarching policy objective is to safeguard the cultural heritage of Aboriginal and Torres Strait Islander communities, particularly in Victoria, by providing mechanisms for the preservation of significant places and objects and ensuring that any interference with these sites requires appropriate consent.
Scope and Application
The Aboriginal and Torres Strait Islander Heritage Protection Regulations, made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, provide specific provisions for the preservation of Aboriginal cultural heritage in Victoria. These regulations apply to local Aboriginal communities and individuals or entities seeking to deface or interfere with Aboriginal objects or places. They delineate the boundaries of various community areas and specify the types of information that must be provided when making, varying, or revoking emergency declarations of preservation. The regulations also outline the process for obtaining consent to deface an Aboriginal object or place, emphasizing the necessity of written consent from the relevant local Aboriginal community. Additionally, the regulations address the information required in notices of advice or determinations, as well as in temporary and permanent declarations of preservation, ensuring transparency and adherence to the Act’s requirements. Through these provisions, the regulations seek to protect Aboriginal heritage while allowing for certain activities with proper authorization.
Key Provisions
The Aboriginal and Torres Strait Islander Heritage Protection Regulations, enacted under Section 32 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, detail several key provisions essential for the preservation and protection of Aboriginal cultural heritage. Section 21C (2) of the Act allows for the making of emergency declarations of preservation when a place or object is under threat of injury or desecration, and it mandates that all reasonable steps be taken to notify any person who may be affected when such a declaration is varied or revoked. The Regulations specify the information to be included in notices of emergency declarations, which must identify the person receiving the notice, the contents of the advice or determination, and a description of any land to which the advice or determination relates, among other details.
The Regulations also set out obligations for the Minister in relation to the making of temporary declarations and declarations of preservation. Section 21D (2) requires that the Minister give notice of the making, variation, or revocation of a temporary declaration within 14 days to any person likely to be affected. This notice must include specific information about the declaration, and the Minister must make the declaration in writing, specifying its terms and the manner of preservation to be adopted. Similarly, Section 21E (2) outlines the process for making a declaration of preservation based on advice from a local Aboriginal community or the Minister's own determination.
Additionally, the Regulations impose strict requirements on the consent needed to deface an Aboriginal object or Aboriginal place. According to Section 21U, any person must obtain written consent from the local Aboriginal community before wilfully defacing, damaging, or interfering with an Aboriginal object or place. This consent must include the name and address of the person to whom the consent is given, and a description of the land to which the consent relates. Failure to obtain such consent can lead to serious consequences.
In terms of offences and penalties, the Regulations are silent on specific penalties. However, the Act itself includes provisions for civil and criminal penalties for breaches. For instance, wilfully defacing, damaging, or interfering with an Aboriginal object or place without consent can lead to criminal charges, with potential penalties including fines and imprisonment. The exact penalties would depend on the jurisdiction and the specific nature of the offence under state or territory laws.