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Australia – Broad Changes Proposed For Victorian Aboriginal Cultural Heritage Laws.

 

8 September, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Native Title

  

Exposure draft amendment Bill released


WHAT YOU NEED TO KNOW

 

  • The scheduled review of the Aboriginal Heritage Act 2006 (Vic) and the concurrent Parliamentary Inquiry into the Establishment and Effectiveness of Registered Aboriginal Parties have culminated in the release of an exposure draft Aboriginal Heritage Amendment Bill 2014.
  • The draft Bill contemplates significant changes to the Aboriginal heritage protection regime in Victoria that will tighten the already rigorous regime.
  • The proposed changes will impact how land users and Aboriginal stakeholders investigate, identify and manage Aboriginal cultural heritage issues, as well as how the heritage protection framework is administered, monitored and enforced.


WHAT YOU NEED TO DO


  • The Government is calling for comments on the draft Bill, with submissions able to be made until 2 October 2014.
  • Land users and interested stakeholders should review the draft Bill and consider making a submission.

 

Review Of The Aboriginal Heritage Act 2006 (Vic)


The Aboriginal Heritage Act 2006 (Vic) (the Act) commenced on 28 May 2007 and repealed the
Archaeological and Aboriginal Relics Preservation Act 1942 (Vic). Together with the Aboriginal Heritage Regulations 2007 (Vic), the Act established a comprehensive framework for the protection of objects, places and human remains that have significance to Aboriginal people in accordance with their traditions or culture.

 

The Act contains a requirement that its operation be reviewed within five years of its commencement. That review commenced in September 2011 and included consultation with a range of stakeholders (Review).

 

The Review was supplemented by the Parliamentary Inquiry into the Establishment and Effectiveness of Registered Aboriginal Parties, conducted by the Parliament’s Environment and Natural Resources Committee in 2012.

 

The Government released its response to the findings of the Review on 17 June 2013. The Government’s response to the Inquiry’s recommendations (tabled in Parliament on 14 May 2013) has also informed the Government’s response to the review of the Act. More information about the review process and the Government’s response can be found here.

 

The exposure draft of the Aboriginal Heritage Amendment Bill 2014 (the Draft Bill) has been
prepared with the intention of implementing some of the Government’s responses to the Review and Inquiry. A copy of the Draft Bill can be found here.

 

The Government is seeking comments on the Draft Bill, with submissions due by 2 October 2014.
Information about how to make a submission can be found here.


Key amendments proposed in the  Draft Bill


The Draft Bill proposes a broad range of amendments to achieve the principal objectives of affording greater  recognition of the role traditional owners play in Aboriginal cultural heritage (ACH) protection and management, and greater efficiency and certainty for land users in managing ACH requirements.

 

Key amendments proposed in the Draft Bill


1. Greater recognition of traditional owners’ rights
2. Changes to the existing offences
3. Personal liability of company officers
4. Enhancement of enforcement mechanisms
5. New requirements for cultural heritage surveys
6. Cultural heritage management plan approval process
7. New preliminary Aboriginal heritage tests
8. Changes to cultural heritage permits
9. New public land (Aboriginal heritage) management agreements
These key amendments are further discussed below.

Greater Recognition Of Traditional Owners’ Rights 

 

The amendments include the addition of several new purposes to the Act which recognise the right of traditional owners to maintain their unique connection to country, their role as protectors of ACH, and the economic relationship traditional owners have to their traditional lands, waters and natural resources.

 

Changes To The Existing Offences


The existing offences for harming ACH will be replaced with new offences for:

 

  • doing an act that harms or is likely to harm ACH (a new strict liability offence); and
  • doing an act that harms ACH where:

    • the person knew the act was likely to harm ACH
    • the person was reckless as to whether the act would harm ACH; or
    • the person was negligent as to whether the act would harm ACH,

 

similar to existing offences.

 

These amendments introduce an offence of strict liability and shift the focus of the offence provisions from the person’s awareness of whether the thing harmed by their act is ACH, to the person’s awareness of whether their act is likely to harm ACH.

 

The existing and most serious offence of knowingly doing an act that harms a thing the person knew was ACH will be replaced by the offence of harming ACH where the person knew their act was likely to harm ACH. The maximum penalties, however, remain the same (fines of AUD265,698 for an individual and AUD1,476,100 for a body corporate).

 

The new strict liability offence of doing an act that harms or is likely to harm ACH will carry the lowest maximum penalties (fines of AUD8,856.60 for an individual and $44,283 for a body corporate).

 

Personal Liability Of Company Officers 

 

Similar to ACH legislation in other jurisdictions, the Draft Bill proposes that officers and persons concerned in the management of a body corporate may be personally liable for an offence committed by the body corporate where they have failed to exercise due diligence to prevent the offence. 

Determining whether an officer or manager has exercised due diligence will involve an assessment of whether they knew or ought reasonably to have known about the offence, their capacity to influence the body corporate, and the steps they took or could reasonably have taken to prevent the offence.

 

Under this amendment, if a company commits an offence, prosecutors will have the option of pursuing the company, its officers or managers, or both.

 

Enhancement Of Enforcement Mechanisms


The Draft Bill contains several amendments proposed to strengthen the investigation and enforcement mechanisms under the Act. Those proposed amendments include:

 

  • Aboriginal heritage officers: new “Aboriginal heritage officers” to be appointed by the Minister to monitor compliance with a cultural heritage management plan (CHMP), a cultural heritage permit (Permit), and new “public land (Aboriginal herit age) management agreements” (discussed below). Their powers will be similar to those of inspectors and authorised officers. Only employees of registered Aboriginal parties who have completed specific training will be eligible for appointment as Aboriginal heritage officers.
  • 24-hour stop orders: new “24-hour stop orders” may be issued by authorised officers and Aboriginal heritage officers if satisfied there are reasonable grounds for believing harm is being or may be caused to ACH. It will be an offence to knowingly contravene a 24-hour stop order.
  • improvement notices: new “improvement notices” may be issued by authorised officers and Aboriginal heritage officers to sponsors of CHMPs or holders of Permits if the officer is satisfied there has been a breach of the Act (including a breach of a CHMP or Permit) and the breach is likely to be repeated. An improvement notice can require the recipient to remedy the breach or address the likely breach within a specified time, and may direct the recipient to take particular measures in doing so. The issue of an improvement notice does not relieve the recipient’s liability for the purported breach of the Act, and any knowing breach of an improvement notice will be an offence in its own right.
  • compliance audit costs: the costs of carrying out a compliance audit required by the Secretary of the Department of Premier and Cabinet (Secretary) will be borne by the person who is the subject of the audit rather than the Secretary. Those costs will be reimbursed if the audit finds there has been no contravention of the Act, CHMP or Permit.
  • more time to commence proceedings: the Draft Bill extends the limitation period for commencing proceedings for non-indictable offences from one to three years. Proceedings for indictable offences (being the main offences under the Act) may still be brought at any time.


Cultural Heritage Surveys


The Draft Bill proposes new requirements for any survey of land to discover ACH, other than by
disturbing or excavating the land. Except where the survey is for the purposes of a CHMP, the proponent must notify any registered Aboriginal party, the Secretary, and the owner or occupier of any affected land, of the details of the survey, including the proposed activity and total survey area. Any registered Aboriginal party may then elect to “participate” in the survey.


These amendments will expand the regulatory reach of the Act to include preliminary surveys that many land users carry out to determine whether any ACH requirements will apply. This will likely increase the cost and time required to carry out such assessments and potentially result in more activities being funnelled through the CHMP process.

 

Cultural Heritage Management Plans


The Government indicated in its response to the Review that it proposed to modify the existing CHMP process to reduce the regulatory burden on the community and make CHMPs more user-friendly.

 

However, the Draft Bill does not contain any significant amendments to the CHMP process itself. It appears that the goal of streamlining the CHMP process will principally be achieved through new intermediate assessment measures (discussed below).

 

Importantly, the Draft Bill does not propose to change the existing triggers for a CHMP under the Act or the Aboriginal Heritage Regulations.

 

The amendments proposed in the Draft Bill include:

 

  • an ability for the Secretary to appoint an “activity advisory group”, which may include representatives of traditional owner groups, in respect of a proposed CHMP where there is no registered Aboriginal party (currently about one quarter of Victoria). The views of an activity advisory group must be considered by the Secretary when deciding to approve a CHMP.
  • an ability for registered Aboriginal parties to request additional information regarding a CHMP submitted to them for approval.
  • provisions for the amendment of an approved CHMP within five years of its approval if the proposed amendment is also approved as if it were a new CHMP.

 

The Draft Bill also proposes new offences for:

 

  • commencing an activity for which a CHMP is required but has not been approved where the person knew or was reckless or negligent as to whether a CHMP was required; and
  • failing to comply with an approved CHMP where the person knew or was reckless or negligent as to whether their act contravened the CHMP.

 

Currently, the primary sanction for failing to obtain a CHMP (other than the ACH harm offences) is an inability to obtain any statutory authorisation required for the proposed activity. These new offences will therefore be significant for utility providers, telecommunications carriers and statutory authorities in circumstances where they are exempt from State planning, environmental and other statutory approval requirements.

 

Preliminary Aboriginal Heritage Tests


New “preliminary Aboriginal heritage tests” will allow land users to seek confirmation from the Secretary about whether a CHMP is required for a proposed activity. This new test is intended to streamline the CHMP process and reflects land user discontent as to the uncertainties in the current system. However, the circumstances where a “preliminary Aboriginal heritage test” might apply and the level of work required before a test request can be made, are not clear. The “prescribed form” in which a test must be submitted to the Secretary may provide some clarity.

A CHMP will be required if the Secretary certifies that a test is “correct”, presumably only where the Secretary agrees with the applicant’s view that a CHMP is required. Strangely, the Secretary is unable to certify that a CHMP is not required.

 

Cultural Heritage Permits


Currently, a Permit can be obtained to harm ACH where a CHMP requirement does not apply. The Draft Bill proposes to exclude “secret or sacred objects” and Aboriginal ancestral remains from the kinds of ACH that may be harmed pursuant to a Permit.

 

This amendment will require land users to instead carry out a “preliminary Aboriginal heritage test” or voluntary CHMP for activities that do not trigger the CHMP requirement but may harm ACH. Land users will likely be reliant on the views of any registered Aboriginal parties as to what constitutes a “secret or sacred object”.

 

Two additional purposes for which a Permit may be granted will be introduced:

 

  • to rehabilitate land in an Aboriginal place (“rehabilitation” only captures works using hand tools); and
  • to inter Aboriginal ancestral remains at an Aboriginal place.

 

The Draft Bill also contemplates the transfer and amendment of Permits with the Secretary’s approval, and proposes a new offence for failing to comply with the conditions of a Permit.


Public Land (Aboriginal Heritage) Management Agreements

 

The Draft Bill contemplates a new “public land (Aboriginal heritage) management agreement”
(Management Agreement) which “public land managers” may enter into with registered Aboriginal
parties for the purpose of managing ACH in respect of activities that would not otherwise require a CHMP (for example, “low impact activities” under the Aboriginal Heritage Regulations). Minimum standards and conditions that must be met by and included in a Management Agreement will be developed. 

 

“Public land managers” will include local governments, the Secretary of the Department of Environment and Primary Industries, Parks Victoria, VicRoads, VicTrack and water authorities.
The development of a standard-form Management Agreement will be a useful tool for public land
managers to minimise risk when carrying out standard land management activities, particularly given the proposed strict liability offence.

 

What This Means For You

 

The Draft Bill proposes significant amendments to the existing ACH management framework in Victoria, a framework that is relatively sophisticated compared to other systems around Australia. Land users and interested stakeholders should review

the Draft Bill and consider providing a submission in response.

 

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For further information, please contact:

 

Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com

 

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