Aboriginal Cultural Heritage Act 2021

 

Aboriginal Cultural Heritage Act 2021

Contents

Part 1 — Preliminary

Division 1 — Introduction

1.Short title2

2.Commencement2

Division 2 — Overview of Act

3.Overview of Act2

4.What Act is about3

5.Main topics dealt with in Act and where to find them3

6.Other things dealt with in Act and where to find them7

7.Overview is a guide8

Division 3 — Objects and principles

8.Objects of Act9

9.Principles relating to Aboriginal cultural heritage10

10.Principles relating to management of activities that may harm Aboriginal cultural heritage11

Division 4 — Interpretation

Subdivision 1 — Terms used

11.Terms used11

Subdivision 2 — Other key terms

12.Meaning of Aboriginal cultural heritage and related terms21

13.Meaning of located in relation to Aboriginal cultural heritage22

Division 5 — Other provisions of general application

14.Act binds Crown22

15.Act does not apply to certain objects22

16.Native title rights and interests22

17.Coroners Act 1996 not affected23

18.Freedom of Information Act 1992 does not apply to culturally sensitive information23

Part 15 — Aboriginal Heritage Act 1972 amended

Division 1 — Act amended

338.Aboriginal Heritage Act 1972 amended24

Division 2 — Amendments commencing on day after assent day

339.Section 4 amended24

340.Section 18 amended24

Notes

Compilation table26

Uncommenced provisions table26

Defined terms

 

Aboriginal Cultural Heritage Act 2021

An Act —

·about Aboriginal cultural heritage; and

·to repeal the Aboriginal Heritage Act 1972 and the Aboriginal Heritage (Marandoo) Act 1992; and

·to make consequential and other amendments to various Acts; and

·for related purposes.

 

Part 1 — Preliminary

Division 1 — Introduction

1.Short title

This is the Aboriginal Cultural Heritage Act 2021.

2.Commencement

This Act comes into operation as follows —

(a)Part 1 — on the day on which this Act receives the Royal Assent (assent day);

(b)Part 15 (other than Division 3) — on the day after assent day;

(c)Part 14 Division 1 (other than sections 310 and 311) — on the day on which Part 15 Division 3 comes into operation (transition day);

(d)sections 310 and 311 — at the end of the period of 6 months beginning on transition day (repeal day);

(e)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

Division 2 — Overview of Act

3.Overview of Act

This Division is intended —

(a)to give a general indication of what this Act is about; and

(b)to assist readers to identify the provisions of this Act that are relevant to them; and

(c)to indicate how this Act is arranged.

4.What Act is about

(1)This Act is about valuing and protecting Aboriginal cultural heritage and managing activities that may harm that heritage.

(2)Through its terms, this Act recognises the special interest Aboriginal people have in protecting, conserving, preserving and managing Aboriginal cultural heritage.

5.Main topics dealt with in Act and where to find them

(1)Part 2 provides for the following bodies to assist in the administration of this Act —

(a)the Aboriginal Cultural Heritage Council — see Part 2 Division 2;

(b)local Aboriginal cultural heritage services — see Part 2 Division 3.

(2)Rights and duties in relation to Aboriginal cultural heritage are dealt with in Part 3, which includes the following —

(a)providing that Aboriginal people are the custodians of Aboriginal ancestral remains and are entitled to the possession and control of those remains — see Part 3 Division 2;

(b)providing that Aboriginal people are the custodians of secret or sacred objects and in some circumstances are the rightful owners of secret or sacred objects and entitled to the possession and control of those objects — see Part 3 Division 3;

(c)providing a process for the return to Aboriginal people of Aboriginal ancestral remains and some secret or sacred objects — see Part 3 Divisions 2 and 3;

(d)imposing a duty to report Aboriginal cultural heritage to the ACH Council — see Part 3 Division 4.

(3)The protection of areas in which Aboriginal cultural heritage of outstanding significance is located is provided for in Part 4, which includes the following —

(a)enabling knowledge holders to apply for those areas to be declared as protected areas — see Part 4 Division 2;

(b)providing special protection from activities that may harm that Aboriginal cultural heritage — see Part 4 Divisions 5 and 6;

(c)providing that protected area orders cannot be repealed or amended to reduce the size of the protected area without a resolution passed by both Houses of Parliament — see section 85.

(4)Offences, penalties and compensation for harm to Aboriginal cultural heritage are provided for in Part 5, which includes the following —

(a)3 levels of offences for harming Aboriginal cultural heritage —

(i)the crime of serious harm to Aboriginal cultural heritage — see sections 92 and 93;

(ii)the offence of material harm to Aboriginal cultural heritage — see section 94;

(iii)the offence of harm to Aboriginal cultural heritage — see section 95;

(b)defences for those offences — see Part 5 Division 3;

(c)compensation for harm to Aboriginal cultural heritage caused as a direct or indirect consequence of the commission of an offence under Part 5 Division 2 — see Part 5 Division 4.

Note for this subsection:

For the purposes of paragraph (b), authorisation under Part 6 Division 4 to carry out an activity that harms Aboriginal cultural heritage is a defence to a charge of an offence of harming Aboriginal cultural heritage under Part 5 Division 2. This may include that the activity was carried out in accordance with an ACH permit or an approved or authorised ACH management plan. Part 6 Divisions 5 and 6 set out the procedure for getting an ACH permit or an approval or authorisation for an ACH management plan.

(5)The management of activities that may harm Aboriginal cultural heritage is dealt with in Part 6, which includes the following —

(a)providing that proponents must undertake due diligence assessments under Part 6 Division 2 in relation to proposed activities (unless the activities are exempt activities), to assess —

(i)whether areas where it is intended to carry out proposed activities include any area that is part of a protected area; and

(ii)based on the level of ground disturbance, whether proposed activities are tier 1 activities, tier 2 activities or tier 3 activities; and

(iii)whether Aboriginal cultural heritage is located in areas where the proponent intends to carry out proposed activities; and

(iv)whether there is a risk of harm being caused to Aboriginal cultural heritage by proposed activities;

(b)the persons to be notified and the persons to be consulted about proposed activities — see Part 6 Division 3;

(c)the circumstances in which persons are authorised to carry out activities that may harm Aboriginal cultural heritage — see Part 6 Division 4;

(d)other matters relating to the management of activities that may harm Aboriginal cultural heritage, including the following —

(i)specifying activities that are exempt from requiring due diligence assessments — see section 103 and the definition of exempt activity in section 100;

(ii)obtaining ACH permits authorising tier 2 activities — see Part 6 Division 5;

(iii)entering into ACH management plans authorising activities that may harm Aboriginal cultural heritage (including tier 3 activities and activities that may harm Aboriginal cultural heritage determined to be of State significance for the purposes of this Act) — see Part 6 Division 6;

(iv)determining whether Aboriginal cultural heritage is of State significance for the purposes of this Act — see Part 6 Division 6 Subdivision 5.

Note for this subsection:

For the purposes of paragraph (c), authorisation under Part 6 Division 4 to carry out an activity that harms Aboriginal cultural heritage is a defence to a charge of an offence of harming Aboriginal cultural heritage under Part 5 Division 2.

(6)Part 7 provides for the Minister to give the following orders in certain circumstances —

(a)stop activity orders (that expire after 60 days, unless extended) specifying measures to be taken to protect Aboriginal cultural heritage from harm or an imminent risk of harm — see Part 7 Division 2;

(b)prohibition orders (that may be of unlimited duration) specifying measures to be taken to protect Aboriginal cultural heritage from harm or an imminent risk of harm — see Part 7 Division 3;

(c)remediation orders specifying measures to be taken to remediate Aboriginal cultural heritage that has been harmed in contravention of this Act — see Part 7 Division 4.

6.Other things dealt with in Act and where to find them

(1)This Act also —

(a)sets out the objects of this Act and provides that, in pursuit of those objects, the principles set out in sections 9 and 10 must be observed — see Division 3 of this Part; and

(b)gives defined meanings to key words and phrases used in this Act — see Division 4 of this Part; and

(c)sets out some general matters, including, importantly, how this Act applies in relation to native title rights and interests — see Division 5 of this Part; and

(d)provides for the endorsement of ACH protection agreements — see Part 8; and

(e)establishes an ACH Directory of information and documents relevant to Aboriginal cultural heritage, (including information about protected areas, ACH permits, ACH management plans and Aboriginal cultural heritage) and provides for access to the information and documents — see Part 9; and

(f)provides mechanisms aimed at ensuring compliance with this Act, including the designation and appointment of inspectors and Aboriginal inspectors, and powers of inspection, entry and seizure — see Part 10;

(g)provides for miscellaneous matters, including the following —

(i)the role of the State Administrative Tribunal in reviewing certain decisions — see Part 12;

(ii)the making of regulations and guidelines — see Part 13 Division 3;

(iii)that the Act cannot be circumvented or contracted out of — see section 300.

(2)In relation to the transition from the Aboriginal Heritage Act 1972 to this Act, this Act —

(a)on the day after assent day — amends the Aboriginal Heritage Act 1972 to provide that a consent given under section 18 of that Act in relation to a notice given on or after assent day under section 18(2) of that Act is limited in duration to a maximum period of 5 years and that the Minister must be notified about new information about Aboriginal cultural heritage — see Part 15 Division 2; and

(b)on transition day — amends the Aboriginal Heritage Act 1972 to allow for a period of 6 months for decisions to be made on notices given under section 18(2) of that Act, and on applications for other approvals made under that Act, before that day — see Part 15 Division 3; and

(c)on repeal day (at the end of that 6‑month period) — repeals the Aboriginal Heritage Act 1972 and provides arrangements to assist in completing the transition from the Aboriginal Heritage Act 1972 to this Act, including arrangements relating to consents given under section 18 of the repealed Act — see Part 14.

(3)This Act makes provision in relation to the transition from the Aboriginal Heritage (Marandoo) Act 1992 to this Act, and provides for the repeal of that Act — see section 312 and Part 14 Division 2 Subdivision 4.

(4)This Act also consequentially amends various other Acts — see Part 16.

7.Overview is a guide

The overview in this Division is intended only as a guide to the general scheme and effect of this Act, and does not limit or otherwise affect the other provisions of this Act.

Division 3 — Objects and principles

8.Objects of Act

(1)The objects of this Act are as follows —

(a)to recognise —

(i)the fundamental importance to Aboriginal people of Aboriginal cultural heritage and the central role of Aboriginal cultural heritage in Aboriginal communities past, present and future; and

(ii)that Aboriginal people have custodianship over Aboriginal cultural heritage; and

(iii)the value of Aboriginal cultural heritage to Aboriginal people and the wider Western Australian community; and

(iv)the living, historical and traditional nature of Aboriginal cultural heritage;

(b)to recognise, protect, conserve and preserve Aboriginal cultural heritage;

(c)to manage activities that may harm Aboriginal cultural heritage in a manner that provides —

(i)clarity, confidence and certainty; and

(ii)balanced and beneficial outcomes for Aboriginal people and the wider Western Australian community;

(d)to promote an appreciation of Aboriginal cultural heritage.

(2)In the pursuit of the objects of this Act, the following principles must be observed —

(a)the principles set out in section 9 relating to Aboriginal cultural heritage;

(b)the principles set out in section 10 relating to the management of activities that may harm Aboriginal cultural heritage.

9.Principles relating to Aboriginal cultural heritage

The principles relating to Aboriginal cultural heritage are as follows —

(a)Aboriginal people should be recognised as having a living relationship with, and as being the primary custodians of, Aboriginal cultural heritage;

(b)Aboriginal people should, as far as practicable, be involved in —

(i)the recognition, protection, conservation and preservation of Aboriginal cultural heritage; and

(ii)the management of activities that may harm Aboriginal cultural heritage;

(c)as far as practicable —

(i)Aboriginal ancestral remains should be in the possession, and under the custodianship and control, of Aboriginal people;

(ii)secret or sacred objects should be in the possession, and under the custodianship, ownership, and control, of Aboriginal people;

(iii)Aboriginal ancestral remains and secret or sacred objects that are not in the possession, and under the custodianship and control, of Aboriginal people should be returned to Aboriginal people.

10.Principles relating to management of activities that may harm Aboriginal cultural heritage

The principles relating to the management of activities that may harm Aboriginal cultural heritage are as follows —

(a)it should be recognised that —

(i)places, objects and landscapes have a range of different values for different individuals, groups or communities, and those values may change for an individual, group or community over time; and

(ii)those values includes social, spiritual, historical, scientific, economic and aesthetic values;

(b)the range of different values for places, objects and landscapes held by different individuals, groups or communities, at particular times and over time, should be recognised and respected;

(c)places and objects exist within landscapes and should be considered in that context;

(d)as far as practicable, in order to utilise land for the optimum benefit of the people of Western Australia, the values held by Aboriginal people in relation to Aboriginal cultural heritage should be prioritised when managing activities that may harm Aboriginal cultural heritage.

Division 4 — Interpretation

Subdivision 1 — Terms used

11.Terms used

In this Act —

Aboriginal ancestral remains has the meaning given in paragraph (b)(iv) of the definition of Aboriginal cultural heritage in section 12;

Aboriginal cultural heritage has the meaning given in section 12;

Aboriginal inspector means a person appointed under section 225(1);

Aboriginal object has the meaning given in paragraph (b)(ii) of the definition of Aboriginal cultural heritage in section 12;

Aboriginal person means a person who —

(a)is wholly or partly descended from the original inhabitants of Australia; and

(b)identifies as an Aboriginal person; and

(c)is accepted as an Aboriginal person by an Aboriginal community in which the person lives, or with which the person identifies;

Aboriginal place has the meaning given in paragraph (b)(i) of the definition of Aboriginal cultural heritage in section 12;

Aboriginal tradition —

(a)means the living, historical and traditional observances, practices, customs, beliefs, values, knowledge and skills of the Aboriginal people of the State generally, or of a particular group or community of Aboriginal people of the State; and

(b)includes any such observances, practices, customs, beliefs, values, knowledge and skills relating to particular persons, areas, objects or relationships;

ACH Council means the Aboriginal Cultural Heritage Council established under section 20(1);

ACH Directory means the Aboriginal Cultural Heritage Directory established and maintained under section 211(1);

ACH impact statement has the meaning given in section 100;

ACH management plan has the meaning given in section 100;

ACH permit has the meaning given in section 100;

ACH protection agreement has the meaning given in section 206(1);

approved form means a form approved under section 307;

approved or authorised ACH management plan means an ACH management plan —

(a)approved under section 150(1)(b)(i); or

(b)authorised under section 165(1)(b)(i);

area means an area of land;

assent day has the meaning given in section 2(a);

CATSI Act corporation has the meaning given in section 19;

CEO means the chief executive officer of the Department;

consult has the meaning given in section 100;

consultation guidelines has the meaning given in section 294(b);

Corporations Act corporation has the meaning given in section 19;

Crown land has the meaning given in the Land Administration Act 1997 section 3(1);

cultural landscape has the meaning given in paragraph (b)(iii) of the definition of Aboriginal cultural heritage in section 12;

culturally sensitive information means information that, in accordance with Aboriginal tradition, is information that is not to be shared with people who are not the knowledge holders for the Aboriginal cultural heritage to which the information relates;

Department means the department of the Public Service principally assisting in the administration of this Act;

due diligence assessment has the meaning given in section 102;

electronic means includes —

(a)an electronic database or document management system; and

(b)any other means by which a document can be accessed electronically;

guidelines means guidelines made under Part 13 Division 3 Subdivision 2;

harm, in relation to Aboriginal cultural heritage, has the meaning given in section 90;

ILUA means an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements established and maintained under the Native Title Act Part 8A;

inspector means a person designated as an inspector under section 224(1);

instrument means any of the following —

(a)an ACH permit;

(b)an approved or authorised ACH management plan;

(c)a protected area order;

(d)a Part 7 order;

in the interests of the State includes —

(a)for the social or economic benefit of the State, including for the social or economic benefit of Aboriginal people; and

(b)the interests of future generations;

knowledge holder —

(a)in relation to an area, means an Aboriginal person who —

(i)in accordance with Aboriginal tradition, holds particular knowledge about the Aboriginal cultural heritage of the area; and

(ii)has traditional rights, interests and responsibilities in respect of Aboriginal places located in, or Aboriginal objects or Aboriginal ancestral remains located in or reasonably believed to have originated from, the area;

and

(b)in relation to Aboriginal cultural heritage, means an Aboriginal person who —

(i)in accordance with Aboriginal tradition, holds particular knowledge about the Aboriginal cultural heritage; and

(ii)has traditional rights, interests and responsibilities in respect of the Aboriginal cultural heritage;

knowledge holder guidelines has the meaning given in section 294(c);

land has the meaning given in the Land Administration Act 1997 section 3(1);

landholder —

(a)in relation to Crown land, means —

(i)if the land is in a managed reserve as defined in the Land Administration Act 1997 section 3(1) — the management body of that reserve under that Act; or

(ii)if the land is vested in a person under a written law other than the Land Administration Act 1997 — that person; or

(iii)if the land is a road as defined in the Land Administration Act 1997 section 3(1) — whichever of the following has the control and management of the road under a written law, the local government in whose district the road is situated, the Commissioner of Main Roads or the Minister to whom the administration of the Public Works Act 1902 is committed; or

(iv)if the land is held under a lease lawfully granted by the Crown, and does not have a landholder under subparagraph (i), (ii) or (iii) — each of the lessee and the Minister as defined in the Land Administration Act 1997 section 3(1); or

(v)if the land does not otherwise have a landholder under this paragraph — the Minister as defined in the Land Administration Act 1997 section 3(1);

and

(b)in relation to land that is not Crown land, means —

(i)a person who is registered under the Transfer of Land Act 1893 as proprietor of an estate in fee simple in the land; or

(ii)a person who is the holder of the freehold in the land as evidenced by a memorial that is registered under the Registration of Deeds Act 1856; or

(iii)an executor or administrator of, or a person appointed under a written law to act on behalf of, a person referred to in subparagraph (i) or (ii); or

(iv)an agent or attorney of a person referred to in subparagraph (i) or (ii); or

(v)a mortgagee in possession of the land;

and

(c)in relation to any land, means a person who —

(i)holds rights conferred under the Dampier to Bunbury Pipeline Act 1997 section 34 in respect of the land or is approved under section 34(3) of that Act as the nominee of a person who holds such rights; or

(ii)holds a distribution licence under the Energy Coordination Act 1994 Part 2A as a result of which the person has rights or powers in respect of the land; or

(iii)holds, or has made an application for, a mining tenement under the Mining Act 1978 in respect of the land; or

(iv)in accordance with the Mining Act 1978, holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning of the Mining Act 1904; or

(v)holds, or has made an application for, a permit, drilling reservation, lease or licence under the Petroleum and Geothermal Energy Resources Act 1967 in respect of the land; or

(vi)holds a licence under the Petroleum Pipelines Act 1969 section 10 in respect of the land or has authority under section 7 of that Act to enter upon the land; or

(vii)holds a licence under the Water Services Act 2012 as a result of which the person has rights or powers in respect of the land;

local ACH service, for an area, means the person designated under section 37(1) as the local Aboriginal cultural heritage service to provide local Aboriginal cultural heritage service functions for the area under Part 2 Division 3;

local ACH service (fees) guidelines has the meaning given in section 294(d);

local ACH service functions has the meaning given in section 19;

located has the meaning given in section 13;

material, in relation to harm to Aboriginal cultural heritage, has the meaning given in section 91(2);

Native Title Act means the Native Title Act 1993 (Commonwealth);

native title party, in relation to an area, means —

(a)a registered native title body corporate for the area; or

(b)a registered native title claimant for the area; or

(c)a person who was a registered native title body corporate for the area or a registered native title claimant for the area but —

(i)under an ILUA, has surrendered their native title rights and interests in respect of the area; or

(ii)whose native title rights and interests in respect of the area have been compulsorily acquired or otherwise been extinguished;

or

(d)if the area is the subject of a settlement ILUA — a regional corporation in relation to that area;

native title representative body means —

(a)a body that is recognised as a representative body under the Native Title Act section 203AD; or

(b)a person or body funded under the Native Title Act section 203FE to perform all, or specified, functions of a body referred to in paragraph (a);

native title rights and interests has the meaning given in the Native Title Act section 223;

new information about Aboriginal cultural heritage has the meaning given in section 178;

occupier —

(a)in relation to land, means a person who is, or is entitled to be, in occupation or control of the land, whether or not the person is a landholder of the land; and

(b)in relation to a place, means a person who has, or appears to have, control or management of the place; and

(c)in relation to a vehicle, means a person who is, or appears to be, in charge of the vehicle;

outstanding significance has the meaning given in section 69;

Part 7 order means —

(a)a stop activity order; or

(b)a prohibition order; or

(c)a remediation order;

parties has the meaning given in section 100;

persons to be consulted has the meaning given in section 100;

persons to be notified has the meaning given in section 100;

prescribed means prescribed by the regulations;

prohibition order means an order given under Part 7 Division 3;

proponent has the meaning given in section 100;

proposed activity has the meaning given in section 100;

protected area means an area declared as a protected area by an order under section 82(1);

protected area order means an order made under Part 4 Division 5;

protected area order guidelines has the meaning given in section 294(e);

public authority means —

(a)a Minister of the State; or

(b)a department or an organisation as those terms are defined in the Public Sector Management Act 1994 section 3(1); or

(c)an entity listed in the Public Sector Management Act 1994 Schedule 1;

public notice means a notice published under section 282;

regional corporation has the meaning given in section 40(2);

registered native title body corporate has the meaning given in the Native Title Act section 253;

registered native title claimant has the meaning given in the Native Title Act section 253;

related agreement has the meaning given in section 100;

remediation order means an order given under Part 7 Division 4;

repeal day has the meaning given in section 2(d);

secret or sacred object means an Aboriginal object that is secret or sacred to an Aboriginal person, group or community in accordance with Aboriginal tradition;

serious, in relation to harm to Aboriginal cultural heritage, has the meaning given in section 91(1);

settlement ILUA has the meaning given in section 40(2);

specified, in relation to an instrument or another document, means specified in the instrument or document, as is relevant;

State significance has the meaning given in section 100;

State significance guidelines has the meaning given in section 294(f);

stop activity order means an order given under Part 7 Division 2;

tier 1 activity has the meaning given in section 100;

tier 2 activity has the meaning given in section 100;

tier 3 activity has the meaning given in section 100;

traditional rights, interests and responsibilities, in relation to an Aboriginal person, group or community, means the rights, interests and responsibilities that the person, group or community has in accordance with Aboriginal tradition;

transition day has the meaning given in section 2(c);

vehicle means any thing capable of transporting people or things by air, road, rail or water, and it does not matter how the thing is moved or propelled;

WA Museum means The Western Australian Museum constituted under the Museum Act 1969.

Subdivision 2 — Other key terms

12.Meaning of Aboriginal cultural heritage and related terms

In this Act —

Aboriginal cultural heritage —

(a)means the tangible and intangible elements that are important to the Aboriginal people of the State, and are recognised through social, spiritual, historical, scientific or aesthetic values, as part of Aboriginal tradition; and

(b)includes the following —

(i)an area (an Aboriginal place) in which tangible elements of Aboriginal cultural heritage are present;

(ii)an object (an Aboriginal object) that is a tangible element of Aboriginal cultural heritage;

(iii)a group of areas (a cultural landscape) interconnected through tangible or intangible elements of Aboriginal cultural heritage;

(iv)the bodily remains of a deceased Aboriginal person (Aboriginal ancestral remains), other than remains that are buried in a cemetery where non‑Aboriginal persons are also buried or remains that have been dealt with or are to be dealt with under a law of the State relating to the burial of the bodies of deceased persons.

13.Meaning of located in relation to Aboriginal cultural heritage

Aboriginal cultural heritage is located in an area if —

(a)the area is, or is part of, an Aboriginal place or a cultural landscape; or

(b)there are Aboriginal ancestral remains or an Aboriginal object in the area.

Division 5 — Other provisions of general application

14.Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

15.Act does not apply to certain objects

This Act does not apply to or in relation to an object that —

(a)is part of a collection made and preserved by the WA Museum under the Museum Act 1969 section 9; or

(b)was made for the purpose of sale, unless the object is, or has been, a secret or sacred object.

16.Native title rights and interests

(1)In this section —

affect has the meaning given in the Native Title Act section 227.

(2)This Act is not intended to affect native title rights and interests otherwise than in accordance with the Native Title Act.

(3)This Act must be interpreted in a way that does not prejudice native title rights and interests to the extent that those rights and interests are recognised and protected by the Native Title Act.

17.Coroners Act 1996 not affected

Subject to section 59, nothing in this Act affects the operation of the Coroners Act 1996.

18.Freedom of Information Act 1992 does not apply to culturally sensitive information

The Freedom of Information Act 1992 (FOI Act) does not apply to information, documents or other records under this Act (whether or not on the ACH Directory) to the extent that the FOI Act would otherwise enable or require the disclosure of culturally sensitive information.

[Parts 2‑14have not come into operation.]

Part 15 — Aboriginal Heritage Act 1972 amended

Division 1 — Act amended

338.Aboriginal Heritage Act 1972 amended

This Part amends the Aboriginal Heritage Act 1972.

Division 2 — Amendments commencing on day after assent day

339.Section 4 amended

(1)In section 4 insert in alphabetical order:

 

transition day has the meaning given in the Aboriginal Cultural Heritage Act 2021 section 11.

 

(2)In section 4 in the definition of traditional custodian delete “section 9.” and insert:

 

section 9;

 

340.Section 18 amended

After section 18(5) insert:

 

(6)If the owner of any land gives notice to the Committee under subsection (2) during the transitional period and the Minister gives consent under subsection (3)(a) in relation to the notice, it is a condition of the consent that —

(a)the consent —

(i)takes effect on the day after the day on which the owner is informed of the Minister’s decision under subsection (3); and

(ii)is of effect only for the period of 5 years, or any shorter period that is specified in the consent, beginning on the day on which the consent takes effect;

and

(b)the owner must notify the Minister if the owner becomes aware of any new information about Aboriginal cultural heritage in relation to the land the subject of the consent.

(6A)In subsection (6) —

Aboriginal cultural heritage has the meaning given in the Aboriginal Cultural Heritage Act 2021 section 12;

located has the meaning given in the Aboriginal Cultural Heritage Act 2021 section 13;

transitional period has the meaning given in the Aboriginal Cultural Heritage Act 2021 section 313;

new information about Aboriginal cultural heritage, in relation to an area of land the subject of consent given under subsection (3)(a), means information not identified to the Minister or the Committee (whether in the notice given to the Committee under subsection (2) or otherwise) before the consent was given, about —

(a)Aboriginal cultural heritage located in the area; or

(b)the characteristics of Aboriginal cultural heritage located in the area.

 

[Division 3has not come into operation.]

[Part 16has not come into operation.]

 

Notes

This is a compilation of the Aboriginal Cultural Heritage Act 2021. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title

Number and year

Assent

Commencement

Aboriginal Cultural Heritage Act 2021 Pt. 1 and Pt. 15 (other than Div. 3)

27 of 2021

22 Dec 2021

Pt. 1: 22 Dec 2021 (see s. 2(a));
Pt. 15 (other than Div. 3): 23 Dec 2021 (see s. 2(b))

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title

Number and year

Assent

Commencement

Aboriginal Cultural Heritage Act 2021 Pt. 2‑14, Pt. 15 Div. 3 and Pt. 16

27 of 2021

22 Dec 2021

To be proclaimed (see s. 2(c), (d) and (e))

Aboriginal Cultural Heritage Amendment Act 2021 s. 4

28 of 2021

22 Dec 2021

To be proclaimed (see s. 2(b))

 

 

Defined terms

 

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined termProvision(s)

Aboriginal ancestral remains11, 12

Aboriginal cultural heritage11, 12

Aboriginal inspector11

Aboriginal object11, 12

Aboriginal person11

Aboriginal place11, 12

Aboriginal tradition11

ACH Council11

ACH Directory11

ACH impact statement11

ACH management plan11

ACH permit11

ACH protection agreement11

affect16(1)

approved form11

approved or authorised ACH management plan11

area11

assent day2, 11

CATSI Act corporation11

CEO11

consult11

consultation guidelines11

Corporations Act corporation11

Crown land11

cultural landscape11, 12

culturally sensitive information11

Department11

due diligence assessment11

electronic means11

FOI Act18

guidelines11

harm11

ILUA11

inspector11

instrument11

in the interests of the State11

knowledge holder11

knowledge holder guidelines11

land11

landholder11

local ACH service11

local ACH service (fees) guidelines11

local ACH service functions11

located11, 13

material11

Native Title Act11

native title party11

native title representative body11

native title rights and interests11

new information about Aboriginal cultural heritage11

occupier11

outstanding significance11

Part 7 order11

parties11

persons to be consulted11

persons to be notified11

prescribed11

prohibition order11

proponent11

proposed activity11

protected area11

protected area order11

protected area order guidelines11

public authority11

public notice11

regional corporation11

registered native title body corporate11

registered native title claimant11

related agreement11

remediation order11

repeal day2, 11

secret or sacred object11

serious11

settlement ILUA11

specified11

State significance11

State significance guidelines11

stop activity order11

tier 1 activity11

tier 2 activity11

tier 3 activity11

traditional rights, interests and responsibilities11

transition day2, 11

vehicle11

WA Museum11