National Parks and Wildlife Act 1974 No 80
Part 6 Aboriginal objects and Aboriginal places
Division 1 General
83 Certain Aboriginal objects to be Crown property
(1) Subject to this section—(a) an Aboriginal object that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of section 33D of the Act of 1967, andshall be, and shall be deemed always to have been, the property of the Crown.(b) an Aboriginal object that is abandoned on or after that day by a person other than the Crown,(2) Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land.(3) No compensation is payable in respect of the vesting of an Aboriginal object by this section or section 33D of the Act of 1967.
84 Aboriginal places
The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act.
85 Secretary’s responsibilities as to Aboriginal objects and Aboriginal places
(1) The Secretary shall be the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.(2) In particular, the Secretary shall be responsible—(a) for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and(b) subject to Division 2, for the proper restoration of any such land that has been disturbed or excavated in accordance with an Aboriginal heritage impact permit.
85A Transfer of Aboriginal objects
(1) The Secretary may, despite any other provision of this Act, dispose of Aboriginal objects that are the property of the Crown—(a) by returning the Aboriginal objects to an Aboriginal owner or Aboriginal owners entitled to, and willing to accept possession, custody or control of the Aboriginal objects in accordance with Aboriginal tradition, or(b) by otherwise dealing with the Aboriginal objects in accordance with any reasonable directions of an Aboriginal owner or Aboriginal owners referred to in paragraph (a), or(c) if there is or are no such Aboriginal owner or Aboriginal owners—by transferring the Aboriginal objects to a person, or a person of a class, prescribed by the regulations for safekeeping.(2) Nothing in this section is taken to limit the right of an Aboriginal owner or Aboriginal owners accepting possession, custody or control of any Aboriginal object pursuant to this section to deal with the Aboriginal object in accordance with Aboriginal tradition.(3) The regulations may make provision as to the manner in which any dispute concerning the entitlement of an Aboriginal owner or Aboriginal owners to possession, custody or control of Aboriginal objects for the purposes of this section is to be resolved.
86 Harming or desecrating Aboriginal objects and Aboriginal places
(1) A person must not harm or desecrate an object that the person knows is an Aboriginal object.Maximum penalty—(a) in the case of an individual—2,500 penalty units or imprisonment for 1 year, or both, or (in circumstances of aggravation) 5,000 penalty units or imprisonment for 2 years, or both, or(b) in the case of a corporation—10,000 penalty units.(2) A person must not harm an Aboriginal object.Maximum penalty—(a) in the case of an individual—500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or(b) in the case of a corporation—2,000 penalty units.(3) For the purposes of this section, circumstances of aggravation are—(a) that the offence was committed in the course of carrying out a commercial activity, or(b) that the offence was the second or subsequent occasion on which the offender was convicted of an offence under this section.This subsection does not apply unless the circumstances of aggravation were identified in the court attendance notice or summons for the offence.(4) A person must not harm or desecrate an Aboriginal place.Maximum penalty—(a) in the case of an individual—5,000 penalty units or imprisonment for 2 years, or both, or(b) in the case of a corporation—10,000 penalty units.(5) The offences under subsections (2) and (4) are offences of strict liability and the defence of honest and reasonable mistake of fact applies.(6) Subsections (1) and (2) do not apply with respect to an Aboriginal object that is dealt with in accordance with section 85A.(7) A single prosecution for an offence under subsection (1) or (2) may relate to a single Aboriginal object or a group of Aboriginal objects.(8) If, in proceedings for an offence under subsection (1), the court is satisfied that, at the time the accused harmed the Aboriginal object concerned, the accused did not know that the object was an Aboriginal object, the court may find an offence proved under subsection (2).Note.An offence against subsection (1), (2) or (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
87 Defences
(1) It is a defence to a prosecution for an offence under section 86 (1), (2) or (4) if the defendant shows that—(a) the harm or desecration concerned was authorised by an Aboriginal heritage impact permit, and(b) the conditions to which that Aboriginal heritage impact permit was subject were not contravened.(2) It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the defendant exercised due diligence to determine whether the act or omission constituting the alleged offence would harm an Aboriginal object and reasonably determined that no Aboriginal object would be harmed.(3) The regulations may provide that compliance with requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, is taken for the purposes of subsection (2) to constitute due diligence in determining whether the act or omission constituting the alleged offence would harm an Aboriginal object.(4) It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the act or omission constituting the alleged offence is prescribed by the regulations as a low impact act or omission.(5) The Minister is not to recommend the making of a regulation under subsection (3), unless—(a) the Secretary has, under subsection (6), set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, and(b) the Minister—(i) is satisfied that the requirements specified in the recommended regulation, or in the code of practice adopted or prescribed by the recommended regulation, meet those minimum standards, and(ii) has consulted with the Aboriginal Cultural Heritage Advisory Committee.(6) The Secretary may, for the purposes of subsection (5) set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, under subsection (3). The Secretary is to publish any such minimum standards in the Gazette.(7) The Minister is not to recommend the making of a regulation under subsection (4) unless the Minister has consulted with the Aboriginal Cultural Heritage Advisory Committee.
87A Exemptions for certain activities
Section 86 (1)–(4) do not apply in relation to the following—(a) work for the conservation or protection of an Aboriginal object or place that is carried out by an officer of the Service or a person under the direction of such an officer,(b) any emergency fire fighting act or bush fire hazard reduction work within the meaning of the Rural Fires Act 1997 that is authorised or required to be carried out under that Act,(c) any thing authorised by or under the State Emergency and Rescue Management Act 1989 in relation to an emergency (within the meaning of that Act) and that was reasonably necessary in order to avoid an actual or imminent threat to life or property,(d) any thing specifically required or permitted under the express terms of a conservation agreement entered into under Division 12 of Part 4 of this Act (being an agreement that was entered into or modified after the commencement of this section).
87B Exemption for traditional Aboriginal cultural activities
(1) The object of this section is to exempt Aboriginal people from the provisions of section 86 that prohibit the harming of an Aboriginal object or place.(2) Aboriginal people are exempt from the provisions of section 86 (1), (2) and (4) to the extent to which those provisions would, but for this section, prohibit Aboriginal people from carrying out traditional cultural activities (except commercial activities).(3) This section applies to and in respect of any dependants (whether Aboriginal or not) of Aboriginal people in the same way as it applies to and in respect of Aboriginal people.
88 Australian Museum Trust to have custody of certain Aboriginal objects
(1) Nothing in Division 2 shall be construed as authorising the Secretary to permit an Aboriginal object to be removed from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to the custody or control of a person other than the Australian Museum Trust, except where—(a) the Aboriginal object remains in the custody or under the control of the Secretary, or(b) the Aboriginal object is being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park.(2) An Aboriginal object that is the property of the Crown, other than an Aboriginal object—(a) in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,(b) being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,(c) in the custody or under the control of the Secretary, orshall be deemed not to be in the possession of the Crown unless it is in the custody or under the control of the Australian Museum Trust.(d) acquired by the Minister or the Secretary pursuant to section 89 or by the Minister pursuant to Part 11,(3) The Secretary may arrange with the Australian Museum Trust for the deposit or exhibition of an Aboriginal object in a building or structure in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park and, where an Aboriginal object is so deposited or exhibited, section 86 does not apply to the Australian Museum Trust in relation to that Aboriginal object.(4) Nothing in this Act shall be construed as affecting the powers, authorities, duties or functions conferred or imposed on the Australian Museum Trust by the Australian Museum Trust Act 1975.
89 Preservation or exhibition of certain Aboriginal objects
(1) Subject to this section, the Minister or the Secretary may, by agreement with a person having the ownership or possession of—(a) an Aboriginal object that is not the property of the Crown, oracquire the Aboriginal object or take such other action as the Minister or the Secretary thinks is practicable for the preservation or exhibition of the Aboriginal object or Aboriginal place.(b) an Aboriginal place,(2) An Aboriginal object acquired under this section shall be the property of the Crown.(3) An Aboriginal object that is real property shall not be acquired under this section, but nothing in this section affects anything contained in Part 11.(4) Any Aboriginal object acquired by the Minister or the Secretary prior to the commencement day shall be deemed to have been acquired under this section.
89A Notification of sites of Aboriginal objects
A person who is aware of the location of an Aboriginal object that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Secretary thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Secretary is aware of the location of that Aboriginal object.Maximum penalty—(a) in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or(b) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.
Division 2 Aboriginal heritage impact permits
90 Aboriginal heritage impact permits
(1) The Secretary may issue an Aboriginal heritage impact permit.(2) An Aboriginal heritage impact permit may be issued subject to conditions or unconditionally. However, a condition cannot be imposed on a permit if compliance with the condition would result in a breach of a requirement made by or under this Act.(3) An Aboriginal heritage impact permit may be issued in relation to a specified Aboriginal object, Aboriginal place, land, activity or person or specified types or classes of Aboriginal objects, Aboriginal places, land, activities or persons.
90A Application for issue of permit
(1) An application may be made to the Secretary for the issue of an Aboriginal heritage impact permit.(2) An application must—(a) be made in or to the effect of a form approved by the Secretary, and(b) contain or be accompanied by such documents and information as is required by regulations or by the Secretary (as indicated in the form or in material accompanying the form).
90B Application for transfer of permit
(1) An application may be made to the Secretary for the transfer of an Aboriginal heritage impact permit to another person.Note.Section 90E requires the application to be made only with the consent in writing of the holder of the permit.(2) An application for the transfer of a permit must—(a) be made in or to the effect of a form approved by the Secretary, and(b) contain or be accompanied by such documents and information as is required by the Secretary (as indicated in the form or in material accompanying the form).
90C Grant or refusal of application
(1) The Secretary may grant or refuse an application for the issue or transfer of an Aboriginal heritage impact permit.(2) An application is granted by the issue or transfer of the permit concerned.(3) If the Secretary proposes to refuse such an application, the Secretary must before doing so—(a) give notice to the applicant that the Secretary intends to do so, and(b) specify in that notice the reasons for the Secretary’s intention to do so, and(c) give the applicant a reasonable opportunity to make submissions in relation to the matter, and(d) take into consideration any such submissions by the applicant.(4) A permit is issued or transferred by notice in writing given to the applicant.Note.Section 90L enables appeals to be made in connection with permit applications within a specified period after the person is given notice of the decision concerned.
90D Variation of permits
(1) The Secretary may vary an Aboriginal heritage impact permit (including the conditions of such a permit).(2) A variation includes the imposing of a condition on a permit (whether or not any conditions have already been imposed), the substitution of a condition, the omission of a condition or the amendment of a condition.(3) A permit may be varied only on the application of the holder of the permit. However, the Secretary may vary a permit—(a) to correct a typographical error, or(b) to resolve an inconsistency between conditions to which the permit is subject.(4) A permit may be varied at any time during its currency, including (subject to section 90R) on its being transferred to another person.(5) A permit is varied by notice in writing given to the holder of the permit.
90E Restrictions on making applications to transfer permits
An application for the transfer of an Aboriginal heritage impact permit may be made only with the consent in writing of the holder of the permit.
90F Requirement for further information
(1) If an application has been made under this Division, the Secretary may, by notice in writing given to the applicant, require the applicant to supply to the Secretary such further information as the Secretary considers necessary and relevant to the application and specifies in the notice.(2) In this section—information includes plans and specifications.
90G Suspension or revocation of permit
(1) The Secretary may suspend or revoke an Aboriginal heritage impact permit.(2) A suspension or revocation of a permit is effected by notice in writing given to the holder of the permit.(3) A suspension may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Secretary.(4) Without limiting subsection (1), a permit may be revoked while it is suspended.(5) The Secretary must not suspend or revoke a permit unless before doing so the Secretary has—(a) given notice to the holder of the permit that it intends to do so, and(b) specified in that notice the reasons for its intention to do so, and(c) given the holder of the permit a reasonable opportunity to make submissions in relation to the proposed revocation or suspension, and(d) taken into consideration any such submissions by the holder of the permit.(6) The reasons for suspending or revoking a permit may include (but are not limited to) the following—(a) the holder of the permit has obtained the permit improperly,(b) a condition of the permit has been contravened,(c) the activities covered by the permit are completed or no longer being carried on.(7) No fees are refundable on the suspension or revocation of a permit.
90H Surrender of permit
An Aboriginal heritage impact permit may, on the written application of the holder of the permit, be surrendered with the written approval of the Secretary.
90I Conditions of suspension, revocation or surrender
(1) The Secretary may, by notice in writing, impose conditions on the suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit.(2) Those conditions may include (but are not limited to) any conditions to which the permit was subject immediately before it was suspended, revoked or surrendered.(3) The Secretary may, by notice in writing, impose new conditions on, or vary or revoke any existing conditions of, the suspension, revocation or surrender of the permit.Note.Section 90J makes it an offence to breach conditions under this section.
90J Failure to comply with conditions
(1) Offences If any condition of an Aboriginal heritage impact permit is contravened by any person, the holder of the permit (or, if more than one person holds the permit, each holder of the permit) is guilty of an offence.(2) If any condition to which a suspension or revocation of, or the approval of the surrender of, an Aboriginal heritage impact permit is subject is contravened by any person, the holder of the permit or former permit (or, if more than one person holds or held the permit or former permit, each holder of the permit or former permit) is guilty of an offence.Maximum penalty (subsections (1) and (2))—(a) in the case of an individual—1,000 penalty units or imprisonment for 6 months, or both and, in the case of a continuing offence, a further penalty of 100 penalty units for each day the offence continues, or(b) in the case of a corporation—2,000 penalty units and, in the case of a continuing offence, a further penalty of 200 penalty units for each day the offence continues.(3) Defence The holder of an Aboriginal heritage impact permit or former Aboriginal heritage impact permit is not guilty of an offence against this section if the holder establishes that—(a) the contravention of the condition was caused by another person, and(b) that other person was not associated with the holder at the time the condition was contravened, and(c) the holder took all reasonable steps to prevent the contravention of the condition.A person is associated with the holder for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.Note.An offence against subsection (1) or (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
90K Factors to be considered in making determinations regarding permits
(1) In making a decision in relation to an Aboriginal heritage impact permit, the Secretary must consider the following matters—(a) the objects of this Act,(b) actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,(c) practical measures that may be taken to protect and conserve the Aboriginal objects or Aboriginal place that are the subject of the permit,(d) practical measures that may be taken to avoid or mitigate any actual or likely harm to the Aboriginal objects or Aboriginal place that are the subject of the permit,(e) the significance of the Aboriginal objects or Aboriginal place that are the subject of the permit,(f) the results of any consultation by the applicant with Aboriginal people regarding the Aboriginal objects or Aboriginal place that are the subject of the permit (including any submissions made by Aboriginal people as part of a consultation required by the regulations),(g) whether any such consultation substantially complied with any requirements for consultation set out in the regulations,(h) the social and economic consequences of making the decision,(i) in connection with a permit application—(i) any documents accompanying the application, and(ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979 in connection with the activity to which the permit application relates and that has been received by the Secretary,(j) any other matter prescribed by the regulations.(2) The Secretary, in making a decision in relation to an Aboriginal heritage impact permit, must not consider any matter other than the matters referred to in subsection (1).
90L Appeals
(1) An applicant for, or holder or former holder of, an Aboriginal heritage impact permit may appeal to the Land and Environment Court against any of the following decisions of the Secretary—(a) a decision to refuse any application in relation to an Aboriginal heritage impact permit or former permit,(b) a decision in relation to any condition to which a permit or former permit (or a surrender of a permit) is subject,(c) a decision to suspend or revoke a permit.(2) The Land and Environment Court—(a) may refuse to grant the appeal, or(b) may grant the appeal wholly or in part, and may give such directions in the matter as the Land and Environment Court thinks appropriate.(3) The decision of the Land and Environment Court on the appeal is final and is binding on the Secretary and the appellant, and is to be carried into effect accordingly.(4) The regulations may (but need not) prescribe the manner in which an appeal is to be made under this section.(5) An appeal under this section must be made within 21 days after the day the person was given notice of the decision being appealed.(6) For the purposes of this section, an application is taken to be refused (unless it is earlier granted or refused), and notice of that refusal is taken to have been given to the applicant, on the expiration of the period of 60 days after the date on which the application was received by the Secretary.(7) For the purposes of subsection (6), any period under section 90F during which an applicant is required to supply to the Secretary such further information is to be disregarded in determining whether the 60 day period referred to in that subsection has expired.
90M Date from which decision operates
A decision of the Secretary in relation to an Aboriginal heritage impact permit operates from—(a) the date of the decision, or(b) if another later date is specified by the Secretary in the decision—that other date.
90N Regulations relating to consultation
The regulations may make provision for or with respect to the following—(a) consultation that must be undertaken in relation to an application or proposed application that relates to an Aboriginal heritage impact permit (including the nature, extent and timing of the consultation),(b) the persons, or classes of persons, who must be so consulted (including but not limited to Aboriginal people with a cultural association with the object or land concerned),(c) the opportunity of persons, or classes of persons, so consulted to make submissions as part of the consultation.
90O Interaction between permits and stop work and interim protection orders
For the avoidance of doubt, the existence of an Aboriginal heritage impact permit does not prevent the making of an order under Division 1 of Part 6A or an interim protection order under Division 2 of Part 6A.
90P Validity of permits
The validity of the Aboriginal heritage impact permit cannot be questioned in any legal proceedings except in proceedings commenced in the Land and Environment Court before the expiration of 3 months from the date on which the issue of the permit was published on the public register.
90Q Aboriginal Heritage Information Management System
(1) The Secretary is to establish and keep a database to be known as the Aboriginal Heritage Information Management System (the AHIMS).(2) The AHIMS is to contain—(a) information and records regarding Aboriginal objects whose existence and location have been reported to the Secretary, and(b) copies of any reports that have been provided to the Secretary regarding Aboriginal objects and other objects, places and features of significance to Aboriginal people, and(c) any other information required by the regulations.(3) The purposes of the AHIMS are—(a) to maintain a record of Aboriginal objects whose existence and location have been reported to the Secretary, and(b) to maintain a copy of any report that has been provided to the Secretary relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, and(c) to maintain a record of the details of any other report (of which the Secretary is aware) relating to the assessment of objects, places and features that are or are likely to be of significance to Aboriginal people, andbut the AHIMS is not intended to be conclusive about whether any information or records contained within it is up-to-date, comprehensive or otherwise accurate.(d) to allow access to the AHIMS—(i) by Aboriginal people and organisations and by academic researchers, and(ii) by or on behalf of persons exercising due diligence to determine whether an act or omission would harm an Aboriginal object for the purposes of section 87 (2), and(iii) by public and local authorities in the exercise of their land management, planning and other similar functions,(4) The AHIMS is to be kept and maintained in such form as the Secretary thinks fit. Different parts of the AHIMS may be kept in different forms.(5) The regulations may prescribe any or all of the following—(a) the persons and classes of persons who may be granted access to information and records contained in the AHIMS,(b) the method of accessing the AHIMS,(c) the form in which access to the AHIMS is to be given (for example, whether by access to full records or summaries or through supplied maps or other forms of information),(d) the type of information or records that are available to be accessed from the AHIMS and any conditions or restrictions on the access to, and use of, that information or those records,(e) fees for access to the AHIMS and for copies or extracts of information and records kept on the AHIMS.
90R Certain Aboriginal heritage impact permit conditions to run with the land
If an Aboriginal heritage impact permit relates to a specified parcel of land and an application is made under section 90B to transfer the permit to another person, the Secretary—(a) must not refuse the application, and(b) in granting the application, must not vary any of the conditions of the permit.
91
(Renumbered as section 89A)