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| Aboriginal Heritage Legislation
Frequently Asked QuestionsMarch 2013
How was this public consultation run?
On 2 November 2012 a six-week consultation process was initiated.
This consultation was based on a complete draft exposure Bill, the Aboriginal Heritage Protection Bill 2012, and an outline of the proposed Regulations. This allowed everyone to see the detail. However, as the legislation itself is long and complex, other plain-English explanatory material was produced. There was also the opportunity for any person or organisation to make written submissions by 14 December 2012. There was direct engagement with some Aboriginal community organisations and the Government sought views about the Bill through a series of public forums, as well as briefings with industry, cultural heritage practitioners and other stakeholders.
How long will it take to introduce new legislation?
The intention is to introduce the new Bill into Parliament in the second half 2013. This will give the Government time to properly consider the feedback from the public consultation, and make any changes it considers appropriate.
Why do we need to protect Aboriginal heritage?
Tasmanian Aboriginal people are the only group of humans to have evolved in isolation for around 12,000 years, since Bass Strait cut Tasmania off from the mainland, and their culture and heritage is like no other. Aboriginal heritage places provide physical and spiritual links for Aboriginal people to their traditions, observances, customs, beliefs and history. Shell middens and concentrations of stone artefacts, rock art, cultural landscapes, quarries and caves can help tell the story of how Aboriginal people lived sustainably with the Tasmanian environment for at least 35,000 years.
Aboriginal heritage provides evidence of the lives and existence of Aboriginal people before European settlement through to the present. There is still much to be learned, acknowledged and respected from this heritage.
What’s wrong with the present legislation?
The current legislation dealing with Aboriginal heritage in Tasmania, the Aboriginal Relics Act 1975, is now very outdated. Since it was introduced there has been significant social, economic, cultural and legislative change, including the implementation of contemporary Aboriginal heritage legislation in some other States.
Among other things, the existing legislation lacks a contemporary understanding of what Aboriginal heritage is, beyond “relics”, and includes an arbitrary cut-off date of 1876. There is no clear statutory role for the Aboriginal community; the legislation is not in any way integrated with other planning and land use development approval systems; and it also lacks such basic elements as transparency or certainty of process, statutory timeframes, appeal rights, or effective enforcement and penalties.
How will new legislation overcome the shortcomings of the present Act?
The draft Bill aims to: - provide more effective protection and management of Aboriginal heritage;
- increase the involvement of the Aboriginal community in decision-making processes;
- integrate the protection and management of Aboriginal heritage with planning and land development processes, providing greater certainty for those who own, manage and use land in Tasmania;
- have clear processes and statutory timeframes for the timely and efficient assessment of activities that may harm Aboriginal heritage;
- include mechanisms for dealing with Aboriginal heritage objects;
- include voluntary agreements and management plans; and
- include transparent processes, enforcement provisions and appeal rights.
Why does new Aboriginal heritage legislation need to be complicated?
The intention is to bring the law on Aboriginal heritage into the wider system of approvals in the State, which requires linkages with other approvals legislation. The legislation will also be broad in scope, and will be about much more than the permits that are the key to the current law.
For instance, it will need to provide a clear statutory role for the Aboriginal community - as well as clarity and certainty for those proposing developments - and other features to improve the protection and management of Aboriginal heritage including voluntary agreements, an Aboriginal Heritage Register, modern and effective systems of enforcement, transparent processes, and appeal rights.
Was anyone consulted before the draft exposure Bill was released?
Some previous consultations occurred with the Aboriginal community and key stakeholders, including industry and development sector representatives across the State. This initial targeted consultation assisted in identifying important issues early in the legislative development process, and helped to inform the development of the “draft exposure Bill”.
Who will the new legislation affect?
The draft Bill applies in all circumstances where Aboriginal heritage exists or should be considered. Unlike the current legislation, however, it aims to establish some clear processes so that people will know how to identify and address any relevant issues, and ties these processes to the other planning and land use development approvals. Having improved laws and processes for Aboriginal heritage will positively affect many people in the Tasmanian community. It will provide the Aboriginal community with a clear, statutory role in the protection and management of their heritage. For landowners and developers, it will provide clearer procedures and greater certainty than exist under the current system.
How will I know if my development proposal needs to be considered under the new legislation?
As with any important values (cultural or natural), the aim is to ensure that when a development is planned, all values are identified early and accurately. Then they can be as far as possible protected, and appropriately managed. In most cases this can be done in the context of an inclusive and sustainable development process. The draft Bill takes the approach that development with larger physical impacts will generally carry higher risks of impacting on Aboriginal heritage. Smaller scale activities are exempt unless there is registered heritage in the affected area. The new legislation will be integrated with the State’s Resource Management and Planning System, to provide flexible and workable processes. It will require Aboriginal heritage to be considered (unless activities are exempt or clearly can have no Aboriginal heritage impact) at the early stages of project development. Clarity at the outset will ensure Aboriginal values are fully factored into development considerations.
How will the new legislation deal with Aboriginal heritage assessments?
The draft Bill allows for the issuing of statutory Guidelines on Aboriginal heritage assessments. Such Guidelines may cover the different types of assessment, standards and methodologies (including when surveys may be necessary). The Guidelines will provide further direction to developers, industry and others on the nature and extent of the assessment required for a proposed land activity.
Will penalties for removing or destroying Aboriginal heritage be increased?
Penalties for breaches of the current legislation (Aboriginal Relics Act 1975) are too low and not an effective deterrent. Penalties will be increased in line with other jurisdictions’ Aboriginal heritage laws, and with other relevant heritage and planning legislation in Tasmania. For instance, maximum fines for an individual under the most modern legislation, in Victoria and Queensland, are more than $100,000 (and sometimes much more), as against $1,300 under the Aboriginal Relics Act. The draft Bill has maximum penalties in line with those in the Tasmanian Historic Cultural Heritage Act 1995, of up to $1.3 million for bodies corporate.
Why is there still a “defence of ignorance” in the Bill?
The Bill’s offences are very different from those in the current Aboriginal Relics Act. The main “offences to harm” (section 28) are graded in three levels, in a way familiar from other areas such as driving offences, depending on whether a person knows he or she is harming Aboriginal heritage, or is reckless or negligent. Unlike now, it will not be necessary to prove knowledge, and it will no longer be possible to avoid conviction simply by pleading ignorance.
To supplement these main “harm” offences, there is a range of other general offences (sections 29-31). The only one where ignorance may be a defence is the “unlawful excavation of Aboriginal heritage”. This defence exists because otherwise a genuinely inadvertent action, involving excavation of a previously unknown site, would necessarily lead to conviction. Unless such a defence is available, it would be difficult to justify creating an offence like this, which by its very nature may well apply to actions that could not possibly be known to be affecting Aboriginal heritage.
Will the Minister need to be personally involved in most processes?
No. The draft Bill is often expressed in terms of the Minister taking actions and decisions, but this is normal in legislation. In practice, it would be expected that the Minister would take only the most important decisions personally. Under the draft Bill the Minister may delegate any functions except in relation to three key matters: Aboriginal Heritage Council appointments, the power to “call in” or determine Aboriginal Heritage Management Plans, and the issuing of Aboriginal Protection Orders. In relation to most or all the other functions, the Minister is likely to delegate them to appropriate public servants.
Why can’t Aboriginal and Historic Heritage legislation be amalgamated?
The Government recognises that both Aboriginal and European histories have helped to shape Tasmania, and that Tasmanians place enormous value on the importance of both. But they are distinctly separate areas with their own issues and challenges that require different approaches, including in terms of providing a clear role for the Aboriginal community on Aboriginal heritage matters.
Reviews have been attempted before. What’s different about this one?
The current reform process is effectively the fifth review of Aboriginal heritage legislation to be undertaken in Tasmania since 1986. Extensive public consultation on a policy framework for new legislation occurred in 2006-07, and further work continued until early 2010.
Although this has been helpful and informs the new work, a number of fundamental policy principles on the protection and management of Aboriginal heritage remained unresolved. It is now possible to draw on the practical experience of the States with recent Aboriginal heritage legislation, and on the ideas of those others that are also reviewing older legislation.
Further consultation has been undertaken in more recent years with both the Aboriginal community and other stakeholders, to help inform the drafting of the Bill. From this experience it is well established that there is a general desire to see modern legislation introduced, although there are varying views on the proposed approaches. One message that came through strongly in 2006-07 was that individuals and organisations wanted to see the detail. That is why this time the consultation was on the draft Bill, and the outline of the Regulations. Everyone has been able to consider how the legislation would work in practice, and specifically in relation to any interests or circumstances relevant to them.
Aboriginal Heritage Legislation Project
Phone: (03) 6233 3774
Email: ahl@dpipwe.tas.gov.au
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