Bills

Aboriginal Heritage (Miscellaneous) Amendment Bill

Final Stages

The House of Assembly agreed to the bill with the amendments indicated by the following schedule, to which amendments the House of Assembly desires the concurrence of the Legislative Council:

No. 1. Clause 3, page 3, line 11—Delete 'Petroleum and Geothermal Energy Act 2000' and substitute 'Energy Resources Act 2000'

No. 2. Clause 3, page 3, after line 11—Insert:

(2) Section 3, definition of owner—delete 'a reference to the owner of the land extends to the holder of the tenement' and substitute:

, 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

(3) Section 3, definition of private land, (c)—after 'tenement' insert:

, or a licence or permit under the Hydrogen and Renewable Energy Act 2023

No. 3 Clause 6, page 3, line 23 [clause 6, inserted paragraph (d)]—Delete paragraph (d)

No. 4. Clause 6, page 3, lines 25 to 27 [clause 6, inserted paragraph (e)]—

Delete 'authorising the uncovering, damage to, disturbing of, interference with or removal of additional Aboriginal sites, objects or remains)' and substitute:

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

No. 5. New clauses, page 4, after line 3—Insert:

7A—Amendment of section 17—Powers

(1) Section 17(1)—after paragraph (ba) insert:

(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;

(2) Section 17(1)(c)(ii)—delete 'that affords evidence of an offence against' and substitute:

used in, or that affords evidence of, a contravention of

(3) Section 17(1)—after paragraph (f) insert:

(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.

7B—Insertion of sections 17A and 17B

After section 17 insert:

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).

No. 6. Clause 8, page 4, after line 4—Insert:

(1) Section 18(b) and (c)—delete paragraphs (b) and (c) and substitute:

(b) contravene a requirement or reasonable instruction of an inspector under this Act, or a direction of an inspector under section 17.

No. 7. Clause 12, page 4, after line 29—Insert:

(3a) Section 20(2)—after 'traditional owner' second occurring insert:

(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)

No. 8. Clause 12, page 5, line 6 [clause 12(6), inserted subsection (5)(a)]—Delete 'under section 20B' and substitute 'in accordance with section 20A'

No. 9. Clause 13, page 5, line 9 to page 8, line 19—Delete clause 13 and substitute:

13—Insertion of section 20A

After section 20 insert:

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.

No. 10. Clause 14, page 8, after line 28 [clause 14(4)]—Before inserted subsection (2) insert:

(1a) 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.

No. 11. Clause 14, page 9, lines 5 and 6 [clause 14(4), note to inserted subsection (4)]—Delete 'under section 20B' and substitute 'in accordance with section 20A'

No. 12. Clause 17, page 9, after line 33 [clause 17, inserted section 23]—After inserted subsection (2) insert:

(2a) 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 activities 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.

No. 13. Clause 17, page 10, lines 14 and 15 [clause 17, note to inserted section 23(6)]—Delete 'under section 20B' and substitute 'in accordance with section 20A'

No. 14. Clause 18, page 11, line 10 [clause 18(6), inserted subsection (1b)(b)]—Delete 'section 20A(3)(d)' and substitute 'section 20A'

No. 15. Clause 18, page 11, lines 15 to 17 [clause 18(7)]—Delete subclause (7) and substitute:

(7) Section 24(2)—delete 'under subsection (1)(c)' and substitute:

(other than a direction given in the circumstances contemplated by subsection (1a)) under subsection (1)(c) that have the effect of prohibiting or restricting access for a period of more than 3 months

No. 16. Clause 18, page 11, line 25 [clause 18(8), inserted subsection (2a)(b)]—Delete 'section 20A(3)(d)' and substitute 'of section 20A'

No. 17. Clause 19, page 12, line 33 [clause 19(6), inserted subsection (1ab)(b)]—Delete 'section 20A(3)(d)' and substitute 'section 20A'

No. 18. New clause, page 15, after line 19—Insert:

30—Amendment of section 46—Regulations

Section 46—after subsection (2) insert:

(3) The regulations may—

(a) be of general or limited application; and

(b) make different provision according to the matters or circumstances to which they are expressed to apply; and

(c) make provisions of a saving or transitional nature consequent on the amendment of this Act or the regulations; and

(d) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of a specified person or body.