South Australia: Aboriginal Heritage Act 1988 (SA)

South Australia Aboriginal Heritage Act 1988 An Act to provide for the protection and preservation of the Aboriginal heritage; to repeal the Aboriginal and Historic Relics Preservation Act 1965 and the Aboriginal Heritage Act 1979; and for other purposes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Act binds Crown Part 2—Administration Division 1—General 5 Functions of the Minister 6 Delegation 7 Aboriginal Heritage Committee 8 Functions of the Committee 9 Central and local archives 10 Confidentiality of archives 11 Effect of entries in the Register 12 Determination of whether site or object is an Aboriginal site or object 13 Consultation on determinations, authorisations and regulations 14 Authorisations subject to conditions Division 2—Inspectors 15 Inspectors 16 Identification 17 Powers 17A Warrants 17B Self-incrimination 18 Offences Division 3—South Australian Aboriginal Heritage Fund 19 The Fund Part 2A—Aboriginal Heritage Guidelines 19A Minister may publish guidelines Part 2B—Recognised Aboriginal Representative Bodies 19B Recognised Aboriginal Representative Bodies 19C Priority where multiple applications 19D Additional functions of Recognised Aboriginal Representative Body 19E Revocation and suspension of appointment of Recognised Aboriginal Representative Body by Committee 19F Revocation of appointment of Recognised Aboriginal Representative Body by Minister 19G Register Part 3—Protection and preservation of Aboriginal heritage Division A1—Agreement making with Recognised Aboriginal Representative Bodies 19H Negotiation of agreement with Recognised Aboriginal Representative Body 19I Approval of local heritage agreement by Minister 19J Minister to grant certain authorisations where local heritage agreement approved 19K Enforcement of local heritage agreement 19L Interaction of Division with other provisions Division A2—Agreements affecting Aboriginal heritage under other Acts 19M Application of Division 19N Approval of agreements to which Division applies 19O Variation, revocation or suspension of approval 19P Certain provisions of Part not to apply in relation to acts done under approved agreements Division A3—Register 19Q Register Division 1—Discovery, protection and management of Aboriginal sites, objects and remains 20 Reporting discovery of sites, objects or remains where person not acting under Ministerial authorisation 20A Cessation of activity and reporting to Minister on discovery etc of certain sites, objects or remains while acting under authorisation 21 Excavating sites, objects or remains 22 Access to and excavation of land by authorised persons 23 Damaging, disturbing or interfering with sites, objects or remains 24 Directions by Minister for protection and preservation of sites, objects or remains 25 Directions by inspector for protection and preservation of sites, objects or remains 26 Failure to comply with directions of Minister or inspector 27 Entry by officials 28 Care of Aboriginal objects Division 3—Control of sale of, and other dealings with, Aboriginal objects 29 Control of sale of and other dealings with objects Division 4—Acquisition and custody of Aboriginal sites, objects and records 30 Acquisition of land 31 Acquisition of objects and records 32 Surrender of objects and records 33 Forfeiture of objects 34 Custody of land, objects and records Division 5—Protection of traditions 35 Divulging information contrary to Aboriginal tradition 36 Access to land by Aboriginal people 37 Preservation of right to act according to tradition Division 6—Aboriginal heritage agreements 37A Aboriginal heritage agreements 37B Effect of Aboriginal heritage agreement 37C Registration of Aboriginal heritage agreements 37D Enforcement of Aboriginal heritage agreements Part 3A—Additional court orders where contravention of Act 37DA Court may make additional orders where contravention of Act Part 4—Miscellaneous 37E Applications under Act 38 Interference with signs 39 Service 41 Vicarious liability 42 Failure to consult etc traditional owners 43 Evidence 45 Commencement of prosecutions 46 Regulations Schedule 1—Repeal of Acts Schedule 3—Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Aboriginal Heritage Act 1988. 2—Commencement (1) This Act will come into operation on a day to be fixed by proclamation. (2) The Governor may, in a proclamation fixing a day for this Act to come into operation, suspend the operation of specified provisions of this Act until a subsequent day fixed in the proclamation, or a day to be fixed by subsequent proclamation. 3—Interpretation In this Act, unless the contrary intention appears— Aboriginal Heritage Guidelines or guidelines means the guidelines published under Part 2A, as in force from time to time; Aboriginal object means an object— (a) of significance according to Aboriginal tradition; or (b) of significance to Aboriginal archaeology, anthropology or history, and includes an object or an object of a class declared by regulation to be an Aboriginal object but does not include an object or an object of a class excluded by regulation from the ambit of this definition; Aboriginal organisation means an association, body or group comprised, or substantially comprised, of Aboriginal persons having as its principal objects the furtherance of interests of Aboriginal people; Aboriginal record means a record of information that must, in accordance with Aboriginal tradition, be kept secret from a person or group of persons; Aboriginal remains means the whole or part of the skeletal remains of an Aboriginal person but does not include remains that have been buried in accordance with the law of the State; Aboriginal site means an area of land— (a) that is of significance according to Aboriginal tradition; or (b) that is of significance to Aboriginal archaeology, anthropology or history, and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition; Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation; central archives means the archives kept by the Minister under Part 2; the Committee means the Aboriginal Heritage Committee established under Part 2; to damage includes to desecrate, deface or destroy; the Fund means the South Australian Aboriginal Heritage Fund established under Part 2; inspector means a person appointed to be an inspector under Part 2; land includes land lying beneath inland waters or the sea; local archives means archives kept with the assistance of the Minister under Part 2; local heritage agreement means a local heritage agreement under section 19H, as in force from time to time; mining tenement means— (a) a mineral claim, a lease or licence under the Mining Act 1971; or (b) a licence under the Energy Resources Act 2000; or (c) a permit, lease or licence under the Petroleum (Submerged Lands) Act 1982; or (d) a licence under the Offshore Minerals Act 2000; object includes an object that forms part of, or is a fixture to, land; owner in relation to private land means— (a) in the case of land alienated from the Crown in fee simple—the holder of an estate in fee simple in the land; (b) in the case of land held from the Crown under a lease or licence—the lessee or licensee; (c) in the case of land occupied under an agreement for sale and purchase with the Crown—the person entitled to exercise the right of purchase, and if the land is subject to a mining tenement, or a licence or permit under the Hydrogen and Renewable Energy Act 2023, a reference to the owner of the land extends to the holder of the tenement, licence or permit; private land means— (a) land alienated from the Crown in fee simple; or (b) land occupied under a lease, licence or agreement for sale and purchase with the Crown; or (c) land subject to a mining tenement, or a licence or permit under the Hydrogen and Renewable Energy Act 2023; Recognised Aboriginal Representative Body, in respect of an area, or an Aboriginal site, object or remains, means the Recognised Aboriginal Representative Body in respect of the area, site, object or remains determined or appointed in accordance with Part 2B; record means— (a) a documentary record; (b) a record made by an electronic, electromagnetic, photographic or optical process; (c) any other kind of record; Register of Aboriginal Sites and Objects means the part of the central archives so entitled and kept by the Minister under Part 2; to sell means— (a) to sell, barter or exchange; or (b) to agree or offer to sell, barter or exchange; or (c) to expose for sale, barter or exchange, and sale has a corresponding meaning; traditional owner of an Aboriginal site or object means an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object; working day means any day except a Saturday, Sunday or public holiday. 4—Act binds Crown This Act binds the Crown. Part 2—Administration Division 1—General 5—Functions of the Minister (1) The functions of the Minister under this Act are— (a) to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains; and (b) to conduct, direct or assist searches for the purpose of discovering Aboriginal sites or objects; and (c) to conduct, direct or assist research into the Aboriginal heritage; and (d) to carry out any other function assigned to the Minister under this Act. (2) The Minister must, in carrying out functions under this Act, consider any relevant recommendations of the Committee. 6—Delegation (1) The Minister may delegate any of the Minister's powers or functions under this Act. (3) A delegation under this section— (a) must be in writing; and (b) may be subject to such conditions as the Minister considers appropriate; and (c) may authorise the sub-delegation of a specified power; and (d) if made to the holder of a specified office or position, empowers any person holding or acting in the office or position to exercise the delegated powers; and (e) is revocable at will; and (f) does not prevent the Minister from acting personally in any matter. 7—Aboriginal Heritage Committee (1) The Aboriginal Heritage Committee is established. (2) The Committee consists of Aboriginal persons appointed, as far as is practicable, from all parts of the State by the Minister to perform the functions required under this Act and to represent the interests of Aboriginal people throughout the State in the protection and preservation of the Aboriginal heritage. (3) The Minister must, as far as is practicable, appoint equal numbers of men and women to the Committee. (4) The members of the Committee will be appointed on such conditions and for such terms as the Minister considers appropriate. (5) The Committee may, with the approval of the Minister, establish subcommittees (which may—but need not—consist of or include members of the Committee) to investigate and report to the Committee on any matter. (6) A member of the Committee will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with Aboriginal persons generally, or a substantial section of Aboriginal persons. 8—Functions of the Committee (1) The functions of the Committee are— (a) to advise the Minister, either on its own initiative or at the request of the Minister, with respect to— (i) the making of entries in the central archives and the removal of any such entry; and (ii) measures that should, in the Committee's opinion, be taken for the protection or preservation of Aboriginal sites, objects or remains; and (iii) the appointment of suitable persons as inspectors for the purposes of this Act; and (iiia) Aboriginal heritage agreements; and (iv) any other matter related to the administration or operation of this Act or to the protection or preservation of the Aboriginal heritage; and (b) to carry out any other function assigned to the Committee by this Act or by the Minister. 9—Central and local archives (1) The Minister must keep central archives relating to the Aboriginal heritage. (2) Part of the central archives (to be entitled the "Register of Aboriginal Sites and Objects") must contain entries describing, with sufficient particularity to enable them to be readily identified, sites or objects determined by the Minister to be Aboriginal sites or objects. (3) The Minister must not remove an entry from the Register of Aboriginal Sites and Objects unless the Minister determines that the site or object to which the entry relates is not an Aboriginal site or object. (4) The Minister may assist (financially or in any other manner) an Aboriginal organisation to keep local archives relating to the Aboriginal heritage. 10—Confidentiality of archives (1) The confidentiality of information entered in the central or local archives that relates to an Aboriginal site or object must be maintained unless— (a) the traditional owners of the site or object have approved disclosure of the information; or (b) where all reasonable steps have been taken to consult the traditional owners but the Minister or organisation keeping the archives is satisfied that there are no traditional owners or that they cannot be identified or located, the Committee (in the case of the central archives), or the organisation keeping the archives (in the case of local archives), has approved disclosure of the information; or (c) the information is made available by the Minister in response to an application under section 12. (2) The confidentiality of information entered in the central or local archives that does not relate to an Aboriginal site or object must be maintained unless the Committee (in the case of the central archives), or the organisation keeping the archives (in the case of local archives), has approved disclosure of the information. (3) The disclosure of information from the central or local archives must be on such conditions (if any) as are stipulated by— (a) the traditional owners; and (b) in the case of information made available from— (i) the central archives, the Committee; and (ii) local archives, the organisation keeping the archives. (4) A person must not— (a) disclose information from the central or local archives contrary to this section; or (b) fail to comply with a condition referred to in subsection (3). Maximum penalty: $250 000 or imprisonment for 2 years or both. 11—Effect of entries in the Register In any legal proceedings— (a) a site or object will be conclusively presumed to be an Aboriginal site or object if it is entered in the Register of Aboriginal Sites and Objects; and (b) a site or object will be conclusively presumed not to be an Aboriginal site or object if the Minister has determined that it should not be entered in the Register and the Minister has not reversed that determination. 12—Determination of whether site or object is an Aboriginal site or object (1) If a person proposes to take action in relation to a particular object and that action may constitute an offence against this Act if the object is an Aboriginal object, the person may apply to the Minister under this section. (2) On an application under subsection (1), the Minister must— (a) if the object is entered in the Register of Aboriginal Sites and Objects, give the applicant written notice that it is so entered; (b) if the object is not entered in the Register, determine whether it should be so entered and give the applicant written notice of the determination. (3) If a person proposes to take action in relation to a particular area and that action may constitute an offence against this Act if the area is, is part of or includes an Aboriginal site or if an Aboriginal object is located in the area, the person may apply to the Minister under this section. (4) On an application under subsection (3), the Minister must— (a) determine whether any entries should be made in the Register of Aboriginal Sites and Objects in relation to sites or objects in the area that are not so entered and give the applicant written notice of the determination; or (b) subject to subsection (5), give the applicant written notice of the location of each Aboriginal site or object in the area that is entered, or that the Minister has determined should be entered, in the Register. (5) The Minister must not disclose the exact location of a site or object if, in the Minister's opinion, the disclosure is likely to be detrimental to the protection or preservation of the site or object or to be in contravention of Aboriginal tradition. (6) The Minister may, within 20 working days after receiving an application, require an applicant to provide information in connection with the application or to engage an expert acceptable to the Minister to do so. (7) Where the Minister requires information to be provided under subsection (6), the Minister must determine the application within 30 working days of receiving that information. (8) The Minister may refuse to entertain an application under this section on the grounds— (a) that the area or object is insufficiently identified; or (b) that the application is not genuine; or (c) that the Minister does not have the resources to determine the application. 13—Consultation on determinations, authorisations and regulations (1) The Minister must— (a) before making a determination under this Act; or (b) before giving an authorisation under this Act; or (c) before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object, take all reasonable steps to consult with— (d) the Committee; and (e) any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and (f) any— (i) traditional owners; and (ii) other Aboriginal persons, who, in the opinion of the Minister, have a particular interest in the matter. (2) When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition. (3) This section does not apply to— (a) a determination under section 24(8); or (b) an authorisation under section 27 or 36; or (c) an authorisation under Part 3 in relation to which a local heritage agreement has been approved under section 19I;or (d) an amendment of an authorisation under Part 3 Division 1 or 3 (not being an amendment that has the effect of authorising 1 or more of the following: (i) excavation for the purposes of uncovering additional Aboriginal sites, objects or remains; (ii) damaging or disturbing additional Aboriginal sites, objects or remains; (iii) interference with or removal of additional Aboriginal sites, objects or remains); or (e) a repeal of an authorisation under Part 3 Division 1 or 3; or (f) an authorisation under section 45. 14—Authorisations subject to conditions (1) An authorisation may be given by the Minister under this Act on such conditions as the Minister considers appropriate. (2) A person who, without reasonable excuse, contravenes or fails to comply with a condition of an authorisation under this Act is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$500 000; (b) in any other case—$250 000 or imprisonment for 2 years or both. Division 2—Inspectors 15—Inspectors (1) The Minister may, by instrument in writing, appoint suitable persons to be inspectors for the purposes of this Act. (2) The Minister may, in the instrument of appointment— (a) limit the area in which the inspector may act; (b) restrict the powers that the inspector may exercise; (c) authorise the inspector to give instructions in relation to a particular Aboriginal site or object. (3) The traditional owners of an Aboriginal site or object may inform the Minister, by notice in writing, that they object to an inspector named in the notice exercising powers under this Act in relation to the site or object, and, in that event, the inspector must not exercise those powers in relation to the site or object. 16—Identification (1) The Minister must provide an inspector with a certificate of appointment setting out any limitations, restrictions or authorisations attaching to the appointment. (2) An inspector must, at the request of a person in relation to whom the inspector has exercised, or intends to exercise, powers under this Act, produce the inspector's certificate of appointment. 17—Powers (1) An inspector may, for the purposes of this Act— (a) at any reasonable time enter any land for the purpose of inspecting an Aboriginal site or object or a site or object that the inspector has reason to believe is an Aboriginal site or object; (b) at any reasonable time enter and inspect any land, premises, vehicle or place for the purpose of determining whether a provision of this Act is being or has been contravened or complied with; (ba) at any reasonable time enter and inspect land for the purposes of determining whether an Aboriginal heritage agreement entered into under this Act is being, or has been, complied with; (bb) in the following circumstances, use reasonable force to break into or open any part of, or anything in or on, any land, premises, vehicle or place: (i) with the authority of a warrant issued under section 17A; (ii) if the inspector reasonably believes that immediate action is required; (iii) with the permission of the owner of the land, premises, vehicle or place; (c) seize and retain— (i) an Aboriginal object in relation to which the inspector has reason to suspect that an offence has been or is about to be committed; (ii) anything used in, or that affords evidence of, a contravention of this Act; (d) exercise reasonable force to prevent the commission of an offence against this Act, or the continuance of such an offence; (e) require a person whom the inspector reasonably suspects of having committed or being about to commit an offence against this Act to state the person's full name and usual residential or business address; (f) require a person holding or required to hold an authorisation under this Act to produce that authorisation for inspection; (g) require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; (h) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information; (i) take photographs, films, audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act; (j) take onto or into any land, premises, vehicle or place, and use, any equipment or apparatus (including, for example, ground penetrating radar, audio visual recording equipment or other measuring or recording apparatus) as reasonably required in connection with the administration or enforcement of this Act; (k) require a person who the inspector reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters, to state the person's full name and usual place of residence and to produce evidence of the person's identity; (l) give any directions reasonably required in connection with the exercise of a power conferred by a preceding paragraph. (2) Where an inspector is authorised by the Minister to give directions in relation to a particular Aboriginal site or object, the inspector may, for the purpose of averting harm to the site or object, give reasonable instructions to any person visiting the site or in the immediate vicinity of the site or object. (3) Where anything is seized by an inspector, the inspector must forthwith report the matter to the Minister. (4) In the exercise of powers under this Act an inspector may be assisted by such persons as are, in the inspector's opinion, necessary or desirable in the circumstances. (5) The powers conferred by this section must not be exercised contrary to a direction of the Minister. 17A—Warrants (1) Where, on the application of an inspector, a magistrate is satisfied that there are reasonable grounds to believe— (a) that a contravention of this Act has been, is being, or is about to be, committed in or on specified land, premises, a vehicle or place; or (b) that something may be found in or on specified land, premises, vehicle or place that has been used in, or constitutes evidence of, a contravention of this Act, the magistrate may issue a warrant in respect of the land, premises, vehicle or place authorising an inspector, with such assistants as the inspector considers necessary, to use reasonable force to break into or open any part of, or anything in or on, the land, premises, vehicle or place specified in the warrant. (2) An application for the issue of a warrant may be made either personally or by telephone. (3) The grounds of an application for a warrant must be verified by affidavit. (4) An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally. (5) Where an application for the issue of a warrant is made by telephone, the following provisions apply: (a) the applicant must inform the magistrate of their name and identify themselves as an inspector, and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an inspector; (b) the applicant must inform the magistrate of the grounds on which they seek the issue of the warrant; (c) if it appears to the magistrate from the information furnished by the applicant that there are proper grounds for the issue of a warrant, the magistrate must inform the applicant of the facts on which they relied as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; (d) if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant, noting on the warrant the facts on which they relied as grounds for the issue of the warrant; (e) the warrant will be taken to have been issued, and will come into force, when signed by the magistrate; (f) the magistrate must inform the applicant of the terms of the warrant; (g) the applicant must, as soon as practicable after the issue of the warrant, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c). (6) An inspector who executes a warrant must, as soon as practicable after execution of the warrant— (a) prepare a notice in the prescribed form containing— (i) their name and a statement that they are an inspector under this Act; and (ii) the name of the magistrate who issued the warrant and the date and time of its issue; and (iii) a description of the land, premises, vehicle or place to which the warrant relates and of the authority conferred by the warrant; and (b) give the notice to the occupier or person apparently in charge of the land, premises, vehicle or place in respect of which the warrant was issued or leave it for them in a prominent position on the land, premises, vehicle or place. (7) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. 17B—Self-incrimination (1) It is not a reasonable excuse for a person to fail to answer a question or to produce, or provide a copy of, a document or information as required under this Act on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (2) If compliance by a natural person with a requirement under this Act might tend to incriminate the person or make the person liable to a penalty, then— (a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or (b) in any other case—the answer given in compliance with the requirement, is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement). 18—Offences A person must not, without reasonable excuse— (a) hinder or obstruct an inspector, or any person assisting an inspector, in the exercise of a power conferred by this Act; (b) contravene a requirement or reasonable instruction of an inspector under this Act, or a direction of an inspector under section 17. Maximum penalty: $10 000 or imprisonment for 6 months or both. Division 3—South Australian Aboriginal Heritage Fund 19—The Fund (1) The South Australian Aboriginal Heritage Fund is established and administered by the Minister. (2) The Fund consists of— (a) money received from the Government of the Commonwealth for the purposes of this Act; and (b) money appropriated by Parliament for the purposes of this Act; and (c) income paid into the Fund under subsection (5); and (d) all money received by the Minister for the purposes of this Act; and (e) penalties recovered in respect of offences against this Act; and (f) amounts paid to the Crown in accordance with an order under section 37DA. (3) The Fund must be kept in a separate account at the Treasury. (4) Any money standing to the credit of the Fund that is not for the time being required for the purposes of this Act may be invested by the Treasurer. (5) Income from investment of the Fund will, at the direction of the Treasurer, be paid into the Fund, or into the Consolidated Account. (6) The Minister may, for the purposes of this Act, borrow money from the Treasurer or, with the approval of the Treasurer, from any other person. (7) The Minister may apply the Fund— (a) in acquiring land or Aboriginal objects or records under this Act; (b) in making grants or loans to persons or bodies undertaking research into, or in relation to, the Aboriginal heritage; (c) in making payments under an Aboriginal heritage agreement entered into by the Minister under this Act; (d) in the administration of this Act; (e) for any other purpose related to the protection or preservation of the Aboriginal heritage. Part 2A—Aboriginal Heritage Guidelines 19A—Minister may publish guidelines (1) The Minister may, by notice in the Gazette, publish guidelines in relation to the operation of this Act (the Aboriginal Heritage Guidelines). (2) The Minister may, by subsequent notice in the Gazette, substitute, vary or revoke the guidelines. (3) Before publishing the guidelines, or substituting or varying the guidelines, the Minister must consult with the Committee (and may consult with any other person or body the Minister thinks fit). (4) The Minister must cause a copy of the guidelines— (a) to be published on a website determined by the Minister; and (b) to be kept available for public inspection, without charge and during ordinary office hours, at an office or offices determined by the Minister. Part 2B—Recognised Aboriginal Representative Bodies 19B—Recognised Aboriginal Representative Bodies (1) For the purposes of this Act, the Recognised Aboriginal Representative Body for— (a) a specified area; or (b) a specified Aboriginal site or sites; or (c) a specified Aboriginal object or objects; or (d) specified Aboriginal remains, is to be determined in accordance with this Part. (2) Anangu Pitjantjatjara Yankunytjatjara will be taken to be the Recognised Aboriginal Representative Body in respect of the lands (within the meaning of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981). (3) Maralinga Tjarutja will be taken to be the Recognised Aboriginal Representative Body in respect of the lands (within the meaning of the Maralinga Tjarutja Land Rights Act 1984). (4) Subject to this Part, a registered native title body corporate (within the meaning of the Native Title Act 1993 of the Commonwealth) will be taken to be appointed as the Recognised Aboriginal Representative Body in respect of the area that is the subject of the relevant native title determination under that Act (including, to avoid doubt, areas within that area in which native title has been extinguished or suppressed). (5) However, an appointment under subsection (4) will only have effect if the appointment is approved by the Committee (and, to avoid doubt, the Committee may refuse to approve an appointment for any reason the Committee thinks fit). (6) If the Committee refuses to approve an appointment under subsection (4), that subsection will be taken to no longer apply in respect of the area that is the subject of the relevant native title determination. (7) A registered native title body corporate that would, but for this subsection, be taken to be appointed as the Recognised Aboriginal Representative Body in respect of a particular area may, by notice given in a manner and form determined by the Committee, elect not to be the Recognised Aboriginal Representative Body in respect of the area, a specified part of the area or a specified Aboriginal site, object or remains within the area. (8) On giving notice under subsection (7)— (a) the appointment of the registered native title body corporate as the Recognised Aboriginal Representative Body in respect of the area will be taken to have been revoked; and (b) if the notice relates to a specified part of an area, or a specified Aboriginal site, object or remains within the area—the registered native title body corporate will be taken to be appointed in respect of the remainder of the area; and (c) subsection (4) will be taken to no longer apply in respect of the area, or the specified part of the area or specified Aboriginal site, object or remains (as the case requires). (9) The Committee may, on application, appoint the following persons or bodies as the Recognised Aboriginal Representative Body in respect of a specified area: (a) in respect of an area that is the subject of a claim to hold native title under the Native Title Act 1993 of the Commonwealth—the registered native title claimants (within the meaning of that Act) in respect of the claim, or specified members of the registered native title claimants; (b) in respect of an area that is the subject of an indigenous land use agreement under the Native Title Act 1993 of the Commonwealth and is not an area contemplated by subsection (2), (3) or (4)—an Aboriginal party to that agreement, or specified members of an Aboriginal party to the agreement. (10) The Committee may, on application, appoint a person or body as the Recognised Aboriginal Representative Body in respect of a specified area (other than an area in respect of which there is already a Recognised Aboriginal Representative Body pursuant to subsection (2), (3) or (4)) or a specified Aboriginal site, object or remains. (11) An application under this section must, if the Committee so requires, be accompanied by— (a) if a determination of native title covers all or part of any land to which the application relates—a copy of the determination; and (b) if an indigenous land use agreement has been entered in respect of all or part of any land to which the application relates—a copy of the agreement; and (c) if an agreement under Part 2 Division 3 Subdivision P of the Native Title Act 1993 of the Commonwealth has been entered in respect of all or part of any land to which the application relates—a copy of the agreement; and (d) if a native title mining agreement or native title mining determination under the Mining Act 1971 or the Opal Mining Act 1995 applies in respect of all or part of any land to which the application relates—a copy of the agreement or determination (as the case requires); and (e) if the application relates to a particular area—a description and map of the area in a form determined by the Committee; and (f) if the applicant is a registered native title body corporate—a copy of the constitution and rules of the body corporate; and (g) any other document or information that the Committee may reasonably require. (12) Before appointing a person or body as a Recognised Aboriginal Representative Body under subsection (9) or (10), the Committee— (a) must be satisfied that the person or body— (i) is able to ascertain and represent the views and knowledge of traditional owners of the relevant area in respect of matters relevant to the operation of this Act (including matters that involve gender‑specific requirements, or some other qualification, according to the traditions of the traditional owners); and (ii) satisfies any other requirements set out in the regulations or the guidelines for the purposes of this paragraph; and (b) must comply with any requirements set out in the regulations for the purpose of this paragraph. (13) The Committee may give written reasons in relation to an appointment or other decision under this section. (14) A Recognised Aboriginal Representative Body must be a body corporate that— (a) has perpetual succession and a common seal; and (b) can sue and be sued in its corporate name. (15) If a document appears to bear the common seal of a Recognised Aboriginal Representative Body, it will be presumed, in the absence of proof to the contrary, that the common seal of the Recognised Aboriginal Representative Body was duly fixed to the document. 19C—Priority where multiple applications (1) If there is more than 1 application under section 19B for appointment as a Recognised Aboriginal Representative Body in respect of a particular area, or a particular Aboriginal site, object or remains, the Committee should give priority to the applicant that the available evidence suggests has the strongest affiliation with, and responsibility for, the area, site, object or remains in accordance with Aboriginal tradition. (2) Without limiting subsection (1), the Committee may, if it considers it appropriate to do so, attempt to resolve any dispute relating to the applications by mediation between the parties. 19D—Additional functions of Recognised Aboriginal Representative Body In addition to any function expressly conferred by or under this Act, the functions of a Recognised Aboriginal Representative Body include— (a) advising the Minister in relation to matters affecting Aboriginal heritage in respect of the area for which the Recognised Aboriginal Representative Body is appointed; and (b) carrying out other functions assigned to the Recognised Aboriginal Representative Body under any other Act or by the Minister. 19E—Revocation and suspension of appointment of Recognised Aboriginal Representative Body by Committee (1) The Committee must, by notice in writing, revoke the appointment of a Recognised Aboriginal Representative Body (other than Anangu Pitjantjatjara Yankunytjatjara or Maralinga Tjarutja in their capacity as Recognised Aboriginal Representative Bodies for their respective lands) at the request of the Recognised Aboriginal Representative Body. (2) The Committee may, by notice in writing, revoke or suspend the appointment of a Recognised Aboriginal Representative Body appointed under section 19B(9) or (10) if— (a) the Recognised Aboriginal Representative Body no longer satisfies the requirements contemplated by section 19B(12)(a); or (b) the Recognised Aboriginal Representative Body has failed or refused, or is likely to fail or refuse, to perform a function under this Act; or (c) the Recognised Aboriginal Representative Body has acted in a manner that is, in the Committee's opinion, at variance with the objects of this Act. (3) The revocation of the appointment of a Recognised Aboriginal Representative Body under this section does not, of itself— (a) affect any right or interest created or exercisable prior to the revocation; or (b) affect any duty, obligation or liability imposed, created or incurred prior to the revocation; or (c) affect any legal proceedings or remedy in respect of any of the matters referred to in a previous paragraph. (4) A previous act or decision of a Recognised Aboriginal Representative Body is not invalid merely because the appointment of the Recognised Aboriginal Representative Body is revoked under this section. 19F—Revocation of appointment of Recognised Aboriginal Representative Body by Minister (1) The Minister may, on application or on his or her own motion, by notice in writing, revoke the appointment of a Recognised Aboriginal Representative Body for any reason he or she thinks fit (including, but not limited to, the reasons set out in section 19E(2)). (2) To avoid doubt, subsection (1) does not apply in relation to Anangu Pitjantjatjara Yankunytjatjara or Maralinga Tjarutja in their capacity as Recognised Aboriginal Representative Bodies for their respective lands. (3) The Minister may, if he or she revokes the appointment of a Recognised Aboriginal Representative Body under this section, do 1 or more of the following: (a) appoint a specified person or body as the Recognised Aboriginal Representative Body in substitution for that Recognised Aboriginal Representative Body; (b) reappoint the relevant person or body as the Recognised Aboriginal Representative Body in respect of an area (other than a specified part of the area, or specified Aboriginal sites, objects or remains located within the area); (c) give such directions as the Minister thinks fit to the Committee in relation to subsequent appointments of a Recognised Aboriginal Representative Body in respect of the relevant area, or a specified Aboriginal site, object or remains. (4) Before revoking the appointment of a Recognised Aboriginal Representative Body under this section, or taking action under subsection (3), the Minister must consult with the Committee (and may consult with any other person or body the Minister thinks fit). (5) If— (a) the Minister revokes the appointment of a Recognised Aboriginal Representative Body taken to be appointed under section 19B(4); or (b) revokes such an appointment and reappoints the person or body as the Recognised Aboriginal Representative Body in respect of the area (other than a specified part of the area, or specified Aboriginal sites, objects or remains located within the area), that subsection will be taken to no longer apply in respect of the area, the specified part of the area or specified Aboriginal site, object or remains located within the area (as the case requires). (6) The revocation of the appointment of a Recognised Aboriginal Representative Body under this section does not, of itself— (a) affect any right or interest created or exercisable prior to the revocation; or (b) affect any duty, obligation or liability imposed, created or incurred prior to the revocation; or (c) affect any legal proceedings or remedy in respect of any of the matters referred to in a previous paragraph. (7) A previous act or decision of a Recognised Aboriginal Representative Body is not invalid merely because the appointment of the Recognised Aboriginal Representative Body is revoked under this section. 19G—Register (1) The Committee must establish and maintain a register of Recognised Aboriginal Representative Bodies. (2) The register must contain the information required by the regulations in respect of each Recognised Aboriginal Representative Body, and may contain such other information as the Committee thinks fit. (3) The register may only be inspected in accordance with the regulations. Part 3—Protection and preservation of Aboriginal heritage Division A1—Agreement making with Recognised Aboriginal Representative Bodies 19H—Negotiation of agreement with Recognised Aboriginal Representative Body (1) Subject to this Act, an applicant for an authorisation under section 21 or 23 (the proponent) may, if there is a Recognised Aboriginal Representative Body in respect of an area, or in respect of an Aboriginal site, object or remains, to which the application relates— (a) negotiate with the Recognised Aboriginal Representative Body; and (b) enter into an agreement (a local heritage agreement) with the Recognised Aboriginal Representative Body, in respect of the area, site, object or remains to which the application relates. (2) A Recognised Aboriginal Representative Body may refuse to negotiate or enter an agreement under this section for any reason it thinks fit. (3) Each person or body taking part in negotiations under subsection (1) must do so in good faith. (4) A local heritage agreement must contain the provisions, and set out the information, required by the regulations and the guidelines (and may contain any other provisions the parties to the agreement think fit). (5) Without limiting subsection (4), the regulations may require a local heritage agreement to contain— (a) a provision limiting the costs or charges payable in relation to the agreement (whether by reference to a specified amount, a proportion of the total costs of a specified project or otherwise); or (b) provisions relating to dispute resolution. (6) A local heritage agreement does not have effect until it has been approved by the Minister under section 19I, and, following such approval, has effect— (a) if a commencement day that falls earlier than the day on which the authorisation to which the agreement relates takes effect is specified in the agreement—from that day; or (b) in any other case—from the time the authorisation to which the agreement relates takes effect, and remains in force until— (c) if the agreement specifies a day on which it ceases to have effect—that day; or (d) — (i) the authorisation to which the agreement relates ceases to have effect; and (ii) all requirements under the agreement have been satisfied; or (e) the agreement is revoked in accordance with this Act, whichever occurs first. (7) A local heritage agreement may, with the written agreement of all parties to the agreement and with the approval of the Minister, be varied or revoked. 19I—Approval of local heritage agreement by Minister (1) A local heritage agreement must be submitted to the Minister for approval in a manner and form determined by the Minister. (2) The Minister must, as soon as is reasonably practicable after receipt of the agreement, determine whether or not to approve the local heritage agreement. (3) The Minister may approve a local heritage agreement if he or she is satisfied that the agreement satisfactorily deals with Aboriginal sites, objects or remains known to be, or that may be, located in the area affected by the application to which the agreement relates. (4) The Minister must, in deciding whether or not to approve an agreement, have regard to the matters set out in the regulations and the guidelines for the purposes of this section. (5) If the Minister is not satisfied of any matters referred to in this section, the Minister may remit the local heritage agreement to the parties to the agreement for further negotiation and agreement. 19J—Minister to grant certain authorisations where local heritage agreement approved (1) The Minister must grant an authorisation under this Part if a local heritage agreement relating to the application has been approved under section 19I (and it is a condition of every authorisation so granted that the person authorised complies with the terms of the local heritage agreement). (2) Nothing in this section prevents the Minister from imposing other conditions on an authorisation under section 14 (however, a condition so imposed that is inconsistent with the agreement will, to the extent of the inconsistency, be taken to be void and of no effect). 19K—Enforcement of local heritage agreement (1) If— (a) a party to a local heritage agreement fails to comply with the agreement; or (b) there is reason to apprehend that a party to a local heritage agreement may fail to comply with the agreement, any other party to the agreement may apply to the District Court for an order under this section. (2) On such an application, the District Court may make such orders as are necessary to secure compliance with the local heritage agreement, or to remedy the default, and to deal with any related or incidental matters. (3) However, no order for costs is to be made under subsection (2) unless the District Court considers such an order to be necessary in the interests of justice. 19L—Interaction of Division with other provisions (1) Nothing in this Division prevents a person from acting in accordance with— (a) the authority of the Minister granted under another provision of this Act; or (b) an agreement contemplated by Division A2. (2) To avoid doubt, nothing in this Division limits section 20. Division A2—Agreements affecting Aboriginal heritage under other Acts 19M—Application of Division This Division applies to— (a) an indigenous land use agreement under the Native Title Act 1993 of the Commonwealth; or (b) an agreement under Part 2 Division 3 Subdivision P of the Native Title Act 1993 of the Commonwealth; or (c) a native title mining agreement under the Mining Act 1971 or the Opal Mining Act 1995; or (d) an agreement under the Land Acquisition Act 1969 relating to native title rights and made in relation to a prescribed private acquisition (within the meaning of that Act); or (e) an agreement, or an agreement of a class, declared by the regulations to be included in the ambit of this subsection, approved by the Minister under section 19N for the purposes of this Division. 19N—Approval of agreements to which Division applies (1) The Minister may, on application or on his or her own motion, by notice in writing, approve an agreement referred to in section 19M for the purposes of this Division. (2) An approval may be conditional or unconditional. (3) Before approving an agreement, the Minister must consult with the Committee (and may consult with any other person or body the Minister thinks fit). (4) The Minister may only approve an agreement if he or she is satisfied that the agreement satisfactorily deals with Aboriginal sites, objects or remains known to be, or that may be, located in the area to which the agreement relates. 19O—Variation, revocation or suspension of approval (1) The Minister may, by notice in the Gazette, vary, revoke or suspend an approval under section 19N for any reason he or she thinks fit. (2) Before varying, revoking or suspending an approval under this section, the Minister must consult with the Committee (and may consult with any other person or body the Minister thinks fit). 19P—Certain provisions of Part not to apply in relation to acts done under approved agreements Subject to this Division, sections 21 and 23 do not apply to, or in relation to, an act or omission done in accordance with an agreement to which this Division applies. Division A3—Register 19Q—Register (1) The Minister must establish and maintain a register consisting of— (a) local heritage agreements; and (b) agreements to which Division A2 applies. (2) The register must contain the information required by the regulations and may contain such other information as the Committee thinks fit. (3) The register may only be inspected in accordance with the regulations. (4) The Governor may only make regulations for the purposes of this section on the recommendation of the Minister given after consultation with the Committee. Division 1—Discovery, protection and management of Aboriginal sites, objects and remains 20—Reporting discovery of sites, objects or remains where person not acting under Ministerial authorisation (1) An owner or occupier of private land, or an employee or agent of such an owner or occupier, who discovers on the land— (a) an Aboriginal site; or (b) an Aboriginal object or remains, must, as soon as practicable, report the discovery to the Minister giving particulars of the nature and location of the site, object or remains. Maximum penalty: (a) in the case of a body corporate—$500 000; (b) in any other case—$250 000 or imprisonment for 2 years or both. (2) This section does not apply to the traditional owner of the site or object or to an employee or agent of the traditional owner (other than where the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, persons engaged in commercial activities on the land where the discovery is made). (3) The Minister may direct a person making a report, or the owner or occupier of the land to which the report relates, (or both) to take such immediate action for the protection or preservation of the Aboriginal site, object or remains as the Minister considers appropriate. (4) A person must not, without reasonable excuse, fail to comply with a direction of the Minister under this section. Maximum penalty: $10 000 or imprisonment for 6 months or both. (5) This section does not apply in relation to— (a) Aboriginal sites, objects or remains discovered by a person acting pursuant to a Ministerial authorisation given under section 21 or 23 (being a discovery that must be reported in accordance with section 20A); or (b) Aboriginal sites, objects or remains the discovery of which has previously been reported under this Act. 20A—Cessation of activity and reporting to Minister on discovery etc of certain sites, objects or remains while acting under authorisation (1) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both after the commencement of this section (the relevant authorisation)— (a) discovers an Aboriginal site, object or remains; or (b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or (c) becomes aware of new information relating to an Aboriginal site or remains, must, in accordance with the requirements set out in the relevant authorisation— (d) in the case of an Aboriginal site or remains—cease undertaking activity within the prescribed distance of the site or remains; and (e) in any case—report the discovery or new information to the Minister. (2) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both before the commencement of this section (the relevant authorisation)— (a) discovers an Aboriginal site, object or remains; or (b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or (c) becomes aware of new information relating to an Aboriginal site or remains, must— (d) in the case of an Aboriginal site or remains— (i) cease undertaking activity within the prescribed distance of the site or remains for such period as may be reasonably necessary to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains; and (ii) as soon as is reasonably practicable after the discovery, or after becoming aware of the new information, report the discovery or new information to the Minister; or (e) in the case of an Aboriginal object—manage the object, and report the discovery of the object to the Minister, in accordance with the requirements set out in the relevant authorisation. (3) To avoid doubt, subsection (2)(d) applies despite a provision of an authorisation to the contrary. (4) A prescribed person who contravenes subsection (1) or (2) is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$500 000; (b) in any other case—$250 000 or imprisonment for 2 years or both. (5) Except as is contemplated by subsection (6), subsections (1) and (2) do not apply in relation to the following Aboriginal sites, objects or remains: (a) Aboriginal sites, objects or remains that are known to the Minister and disclosed to the applicant in the course of their application for the relevant authorisation (whether or not the discovery of the sites, objects or remains has previously been reported under this Act); (b) Aboriginal sites, objects or remains the discovery of which is reported under section 20; (c) Aboriginal sites, objects or remains that are the subject of a management methodology approved by the Minister for the purposes of this section; (d) Aboriginal sites, objects or remains that are the subject of a local heritage agreement; (e) any other Aboriginal site, objects or remains, or Aboriginal sites, objects or remains of a kind, prescribed by the regulations. (6) Despite subsection (5), subsections (1) and (2) continue to apply in relation to new information relating to an Aboriginal site or remains of which a prescribed person becomes aware (whether or not the site or remains themselves are referred to in subsection (5)). (7) Before approving a management methodology for the purposes of this section, the Minister must be satisfied that— (a) consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, was carried out in accordance with any requirements set out in the regulations or guidelines in the development of the management methodology; and (b) the management methodology includes provisions requiring consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, in relation to sites, objects or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation; and (c) the management methodology includes provisions that provide the Minister with a reasonable opportunity to take action under this Act in respect of sites or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation, or where new information relating to a site or remains becomes known; and (d) a condition is imposed on the relevant authorisation requiring the person to whom the authorisation is given to comply with the management methodology in relation to sites, objects and remains discovered in the course of undertaking an activity pursuant to the authorisation; and (e) the management methodology complies with any other requirements set out in the regulations or guidelines. (8) Nothing in this section limits a direction that may be given by the Minister or an inspector under this Act (and, in particular, nothing in this section authorises a person to contravene such a direction). (9) In this section— prescribed distance, in relation to a site or remains, means— (a) if the regulations prescribe a distance for the purposes of this section—that distance; or (b) if the site or remains are discovered in the course of undertaking an activity pursuant to an authorisation of the Minister under section 21 or 23, and that authorisation specifies a distance for the purposes of this section—that distance; or (c) in any other case— (i) in the case of a site—3 metres; or (ii) in the case of remains—5 metres; prescribed person, in relation to a relevant authorisation, means— (a) the person to whom the relevant authorisation is given; and (b) a traditional owner of the site or remains to the extent that the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, a person to whom the relevant authorisation is given; and (c) an employee or agent of, or a person otherwise acting for or on behalf of, a person referred to in a preceding paragraph; and (d) any other person prescribed by the regulations. 21—Excavating sites, objects or remains (1) A person must not, without authorisation by the Minister, excavate land for the purpose of uncovering any Aboriginal site, object or remains. Maximum penalty: (a) in the case of a body corporate—$500 000; (b) in any other case—$250 000 or imprisonment for 2 years or both. (2) Without limiting any other condition that may be imposed on an authorisation, the Minister must not give an authorisation for the purposes of this section unless the authorisation contains the following conditions: (a) a condition requiring that where— (i) a site or remains are discovered in the course of undertaking activities pursuant to the authorisation; or (ii) new information relating to a site or remains becomes known to a person undertaking activities pursuant to the authorisation, such activity must immediately cease within a specified distance of the site or remains (which must not be less than the prescribed distance within the meaning of section 20A); and (b) a condition requiring that a specified person or body must, as soon as is reasonably practicable, report a discovery or new information referred to in paragraph (a) to the Minister; and (c) a condition that prevents the resumption of activities pursuant to the authorisation during the period specified in the condition (being a period that is sufficient to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains); and (d) any other condition required by the regulations. (3) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section to a specified class of persons. (4) Without limiting any other provision of this Act, the Minister may give an authorisation for the purposes of this section in relation to specified Aboriginal sites, objects or remains, or to all Aboriginal sites, objects or remains within a specified area (whether or not those Aboriginal sites, objects or remains are entered in archives kept under Part 2 or have otherwise been reported under this Act). (5) Section 20 does not apply in relation to Aboriginal sites, objects or remains discovered in the course of excavations carried out with an authorisation given by the Minister for the purposes of this section. Note— Such discoveries may be required to be reported to the Minister in accordance with section 20A. (6) This section does not apply to an excavation of land occurring in the course of complying with a direction of the Minister under this Act. 22—Access to and excavation of land by authorised persons (1) Where the Minister has reason to believe that any Aboriginal site, object or remains have been or may be found on or under any land (including private land), the Minister may authorise a person— (a) to enter the land; and (b) to search for the site, object or remains; and (c) to excavate the land. (2) Before entering any land pursuant to an authorisation under this section, the authorised person must give reasonable notice in writing to the owner and occupier (if any) of the land identifying the land affected. (3) Where any Aboriginal object or remains, or any object or remains that may be an Aboriginal object or Aboriginal remains, is or are found on the land, the Minister, if satisfied that it is necessary to do so for the protection or preservation of the object or remains, may take possession of the object or remains. (4) The Minister must make good any damage done to land by a person acting in pursuance of this section. (5) A person must not, without reasonable excuse, hinder or obstruct a person acting pursuant to an authorisation under this section. Maximum penalty: $10 000 or imprisonment for 6 months or both. 23—Damaging, disturbing or interfering with sites, objects or remains (1) A person who, without authorisation by the Minister, intentionally or recklessly damages, disturbs or interferes with an Aboriginal site, object or remains is guilty of an offence. Maximum penalty: (a) in the case of a body corporate—$2 000 000; (b) in any other case—$250 000 or imprisonment for 2 years or both. (2) A perso