Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018

Administered by Department of Climate Change, Energy, the Environment and Water

Legislation au C2018A00086 In force Act

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Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018

 

No. 86, 2018

 

 

 

 

 

An Act to deal with consequential and transitional matters arising from the enactment of the Underwater Cultural Heritage Act 2018, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Repeals and amendments

Part 1—Repeal of the Historic Shipwrecks Act 1976

Historic Shipwrecks Act 1976

Part 2—Consequential amendments

Australian Heritage Council Act 2003

Navigation Act 2012

Protection of the Sea (Powers of Intervention) Act 1981

Sea Installations Act 1987

Schedule 2—Transitional provisions

 

 

 

Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018

No. 86, 2018

 

 

 

An Act to deal with consequential and transitional matters arising from the enactment of the Underwater Cultural Heritage Act 2018, and for related purposes

[Assented to 24 August 2018]

The Parliament of Australia enacts:

1  Short title

  This Act is the Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

24 August 2018

2.  Schedules 1 and 2

At the same time as section 3 of the Underwater Cultural Heritage Act 2018 commences.

However, the provisions do not commence at all if that section does not commence.

1 July 2019

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Repeals and amendments

Part 1—Repeal of the Historic Shipwrecks Act 1976

Historic Shipwrecks Act 1976

1  The whole of the Act

Repeal the Act.

Part 2—Consequential amendments

Australian Heritage Council Act 2003

2  Subparagraph 5(d)(v)

Omit “historic shipwrecks”, substitute “underwater cultural heritage”.

Navigation Act 2012

3  Subsection 14(1) (definition of historic wreck)

Repeal the definition, substitute:

historic wreck means:

 (a) remains or articles covered by paragraph 16(1)(a) or (b) of the Underwater Cultural Heritage Act 2018; or

 (b) remains or articles covered by a declaration made in relation to item 1 or 2 of the table in subsection 17(5) of that Act; or

 (c) remains or articles covered by a provisional declaration made in relation to item 1 or 2 of the table in subsection 19(5) of that Act.

Protection of the Sea (Powers of Intervention) Act 1981

4  Subsection 5(2)

Repeal the subsection, substitute:

 (2) Nothing in the Underwater Cultural Heritage Act 2018 affects the operation of this Act.

Sea Installations Act 1987

5  Subsection 4(1) (definition of excluded wreck)

Repeal the definition.

6  Subsection 4(1)

Insert:

excluded wreckage means:

 (a) remains or articles covered by subsection 16(1) of the Underwater Cultural Heritage Act 2018; or

 (b) remains or articles covered by a declaration made under subsection 17(1), 18(1) or 19(1) of that Act; or

 (c) a wreck described in paragraph 238(1)(b) of the Navigation Act 2012.

7  Subsection 4(1) (paragraph (h) of the definition of sea installation)

Omit “an excluded wreck”, substitute “excluded wreckage”.

Schedule 2—Transitional provisions

 

1  Definitions

(1) In this Schedule:

commencement day means the day on which the new Act commences.

new Act means the Underwater Cultural Heritage Act 2018.

old Act means the Historic Shipwrecks Act 1976, as in force immediately before the commencement day.

(2) Expressions used in this Schedule that are defined for the purposes of the new Act, and used in relation to the new Act, have the same meaning as in the new Act.

(3) Expressions used in this Schedule that are defined for the purposes of the old Act, and used in relation to the old Act, have the same meaning as in the old Act.

2  Section 4A declarations in relation to shipwrecks

(1) This item applies in relation to the remains of ships that were covered by a declaration under subsection 4A(1) or (2) of the old Act immediately before the commencement day.

(2) To avoid doubt, the remains are covered by paragraph 16(1)(a) of the new Act.

3  Section 4A declarations in relation to relics

(1) This item applies in relation to articles that were covered by a declaration under subsection 4A(6) or (7) of the old Act immediately before the commencement day.

(2) To avoid doubt, the articles are covered by paragraph 16(1)(b) of the new Act.

4  Transition of section 5 declarations in relation to shipwrecks and relics

(1) This item applies in relation to a declaration that was in force under section 5 of the old Act immediately before the commencement day in relation to:

 (a) the remains of a ship; or

 (b) a particular article.

(2) The declaration is taken, on and after the commencement day, to be a declaration in relation to the remains or the article (as the case may be) made under subsection 17(1) of the new Act.

5  Transition of provisional declarations in relation to shipwrecks and relics

(1) This item applies in relation to a declaration that was in force in relation to an article under section 6 of the old Act immediately before the commencement day.

(2) The declaration is taken, on and after the commencement day, to be a declaration in relation to the article made under subsection 19(1) of the new Act.

6  Transition of notices about possession etc. of articles

(1) This item applies if, before the commencement day, a person had given the prescribed notice in relation to an article under section 9 of the old Act.

(2) The Minister is taken to have granted a permit to the person under section 23 of the new Act in relation to the article.

(3) For the purposes of subsection 23(5) of the new Act, the following things are taken to be specified in the permit:

 (a) the article referred to in subitem (1);

 (b) that the permit applies to the person;

 (c) the conduct authorised is the possession, custody and control of the article;

 (d) that the permit comes into force on the commencement day and remains in force indefinitely, unless:

 (i) the permit is varied under section 25 of the new Act to specify an expiry date; or

 (ii) the permit is suspended or revoked under section 26 of the new Act;

 (e) that the permit includes a condition that it is non‑transferable;

 (f) if, immediately before the commencement day:

 (i) particulars of the article were included in the Register of Historic Shipwrecks; and

 (ii) a unique identifier was allocated to the article in the Register;

  that the permit number is the unique identifier.

7  Notices about location of articles

Transitioning notices given before commencement

(1) Subitem (2) applies if:

 (a) a notice had been given to a person under subsection 10(1) of the old Act before the commencement day; and

 (b) the notice had not been complied with before that day.

(2) The notice is taken to have been given, on the day it was given, to the person under subsection 38(2) of the new Act.

(3) If the period for compliance specified in the notice is less than 21 days after the notice was given to the person, the notice is taken to specify that it must be complied with within 21 days, starting on the day the notice was given to the person.

Notice may be given under new Act regardless of when possession etc. began

(4) The Minister may give a notice to a person in relation to an article under section 38 of the new Act whether the person obtained, or is reasonably believed to have obtained, possession, custody or control of the article before, on or after the commencement day.

8  Directions about custody etc. of articles

Transitioning notices given before commencement

(1) Subitem (2) applies if a notice had been given to a person under subsection 11(1) of the old Act before the commencement day requiring a person to take action in relation to an article.

(2) On and after that day, the notice has effect in relation to the article as if it had been given by the Minister under subsection 39(1) of the new Act.

Notice may be given under new Act regardless of when possession etc. began

(3) The Minister may give a direction to a person in relation to an article of protected underwater cultural heritage under section 39 of the new Act whether the person obtained possession, custody or control of the article before, on or after the commencement day.

9  Pending applications for permits are taken to have been refused

If an application for a permit under section 15 of the old Act was pending immediately before the commencement day, the application is taken, on the commencement day, to have been refused by the Minister.

10  Transition of permits for exploration or recovery of articles

(1) This item applies to a permit (the old permit) that was in force under section 15 of the old Act immediately before the commencement day.

(2) The old permit is taken, on and after the commencement day, to be a permit (the new permit) granted under section 23 of the new Act.

(3) The conduct authorised by the old permit is taken to be the conduct authorised by the new permit.

(4) If the old permit was granted subject to one or more conditions, the conditions have effect as if they were imposed by the Minister on the new permit under paragraph 24(1)(b) of the new Act.

(5) The new permit ceases to be in force on the day the old permit would have ceased to be in force, unless the new permit is earlier revoked under section 26 of the new Act.

11  Continuation of register

(1) The register that was:

 (a) kept under section 12 of the old Act; and

 (b) known before the commencement day as the Register of Historic Shipwrecks;

continues in existence under section 48 of the new Act.

(2) The Minister may make any changes to the register that the Minister considers appropriate because of the operation of subitem (1).

12  Evidentiary certificates

Despite the repeal of section 29 of the old Act, that section continues to apply, in relation to a certificate given before the commencement day, as if that repeal had not happened.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 28 March 2018

Senate on 27 June 2018]

 

(77/18)

 

Overview

The Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018 was enacted by the Parliament of Australia to address the transitional and consequential matters arising from the introduction of the Underwater Cultural Heritage Act 2018, which aimed to provide a comprehensive framework for the protection of underwater cultural heritage in Australia. This Act ensures a smooth transition from the previous legislative regime, the Historic Shipwrecks Act 1976, to the new provisions. By repealing the old Act and making necessary amendments to other related Acts, it facilitates the implementation of the new legislative framework while maintaining continuity in the protection and management of underwater cultural heritage. The policy objective is to safeguard Australia's underwater cultural heritage while providing a clear and effective legislative structure for its preservation and management. The Act outlines the repeal of the Historic Shipwrecks Act 1976 and makes consequential amendments to other relevant Acts, such as the Australian Heritage Council Act 2003, the Navigation Act 2012, the Protection of the Sea (Powers of Intervention) Act 1981, and the Sea Installations Act 1987. Additionally, it includes transitional provisions to ensure that existing declarations, permits, and other regulatory instruments remain in effect or are appropriately transitioned to the new regime. The Act commenced on 24 August 2018, with specific provisions related to the schedules commencing on 1 July 2019 or upon the commencement of the relevant section of the Underwater Cultural Heritage Act 2018, whichever is later.

Scope and Application

The Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018 applies to the repeal of the Historic Shipwrecks Act 1976 and makes consequential amendments to other relevant Australian legislation, including the Australian Heritage Council Act 2003, the Navigation Act 2012, the Protection of the Sea (Powers of Intervention) Act 1981, and the Sea Installations Act 1987. This Act ensures that there are smooth transitional provisions from the old Act to the new regime established under the Underwater Cultural Heritage Act 2018. The Act applies to all persons, entities, and industries that are subject to the provisions of the repealed and amended Acts, ensuring that their activities related to underwater cultural heritage are governed under the new legislative framework. The Act has a national jurisdictional reach, as it is an Act of the Commonwealth of Australia, and it extends its application across all states and territories within Australia. There are no specific exclusions or exemptions mentioned within the text of this Act, however, it does allow for the continuation of certain registers and evidentiary certificates from the repealed Act, thereby ensuring that existing records and documentation remain valid under the new legislative scheme. The Act may be extended or restricted through subordinate instruments, such as regulations or guidelines, which may be made under the authority of the new Underwater Cultural Heritage Act 2018. The Act commenced on 24 August 2018, with certain provisions within Schedules 1 and 2 commencing on 1 July 2019, or upon the commencement of section 3 of the Underwater Cultural Heritage Act 2018, whichever is later. The transitional provisions within Schedule 2 ensure that existing declarations, permits, and notices under the repealed Historic Shipwrecks Act 1976 continue to have effect under the new regime, providing a seamless transition for stakeholders. This Act aims to facilitate a smooth and orderly transition from the old legislative framework to the new one, while maintaining the protection and preservation of Australia's underwater cultural heritage.

Key Provisions

The main operative sections of the Underwater Cultural Heritage (Consequential and Transitional Provisions) Act 2018 include the repeal of the Historic Shipwrecks Act 1976 and consequential amendments to other legislation to align with the new framework established by the Underwater Cultural Heritage Act 2018. Section 1 of the Act provides for its short title, while Section 2 sets out the commencement details for various provisions, with some sections commencing on 24 August 2018 and others on 1 July 2019, contingent on the commencement of section 3 of the Underwater Cultural Heritage Act 2018. The schedules to the Act detail the specific repeals and amendments required to existing laws to reflect the new provisions. The Act imposes several obligations and requirements on the parties and entities it governs. For instance, it mandates the repeal of the Historic Shipwrecks Act 1976 and the amendment of various other Acts to reflect the new terminology and provisions introduced by the Underwater Cultural Heritage Act 2018. Additionally, it ensures that certain provisions, such as evidentiary certificates under the repealed Act, continue to apply to situations that arose before the commencement of the new Act. Transitional provisions are also included to manage the transition of existing declarations, permits, and notices from the old regime to the new one, ensuring continuity in the protection and management of underwater cultural heritage. The Act includes provisions for offences, penalties, and other consequences for breaches of the new legislative framework. Although the Act itself does not specify maximum penalties for breaches, it is likely that breaches of the new provisions would be subject to penalties under the Underwater Cultural Heritage Act 2018 or other relevant legislation. For example, unauthorised interference with underwater cultural heritage could result in criminal offences and penalties, as outlined in the new Act. Additionally, the Act ensures that pending applications for permits under the repealed Act are deemed to have been refused, thereby maintaining the integrity of the new regulatory environment.

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Environmental Law
Instrument
Act
Concepts
Commencement Provisions
Repeal & Amendment
Transitional Provisions

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