The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) is a short piece of legislation that deals with declarations that can be made by the Federal Environment Minister to protect ‘significant Aboriginal areas and objects’. As noted by the then Justice French in Tickner v Bropho:[1] ‘Informing [the ATSIHP Act’s] enactment however, was the idea that it would be used as a protective mechanism of last resort where State or Territory legislation was ineffective or inadequate to protect heritage areas or objects’. This factsheet concentrates on protection of areas (rather than objects) and declarations by the Minister (rather than by authorised officers).
How declarations are made and operate
The ATSIHP Act provides for both emergency declarations[2] and other declarations.[3] The making of an emergency or other declaration is discretionary.[4]
Under section 9, the Minister may make an emergency declaration where they receive an application (made orally or in writing) on ‘behalf of an Aboriginal or group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration’; and the Minister must be satisfied that the area is a significant Aboriginal area, and that it is under serious or immediate threat of injury or desecration.[5] An emergency declaration shall not exceed 30 days.[6] There is provision for the Minister to extend the declaration for a further period, but not extending beyond 60 days after the declaration first came into effect.[7]
Under section 10, the Minister can make ‘other’ declarations. The Minister is required to meet further requirements when making a declaration under s10. The Minister may make a declaration where they:
a) receive an application (made orally or in writing) on ‘behalf of an Aboriginal or group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration’;
b) are satisfied that the area is a significant Aboriginal area and that it is under threat from injury or desecration;
c) has received a report in relation to the area that deals with certain issues that will be discussed immediately below; and
d) has considered ‘other matters as he or she thinks relevant’.[8]
The report must deal with several matters including: the particular significance of the area to Aboriginal or Torres Strait Islander peoples; the extent of the threat of injury to or desecration of the area; the extent of the area that should be protected; the duration of any declaration; and ‘the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under such law’.[9] A declaration made pursuant to s10 takes effect for the period specified in that declaration.[10] There does not appear to be any limit on how long it can apply for.
It is an offence to engage in conduct that contravenes a provision of a declaration in relation to a significant Aboriginal area.[11]
Relationship with State/Territory laws concerning Aboriginal cultural heritage
Section 13 is the key section that sets out the relationship between the Federal Minister and the State/Territory legislation. Section 13(2) sets out that the Federal Minister shall not make a declaration in relation to an area ‘unless he or she has consulted with the appropriate Minister of that State or Territory as to whether there is, under a law of that State or Territory, effective protection of the area…from the threat of injury or desecration’. However, a failure to comply with this section would not invalidate the making of a declaration.[12] Section 13(5) also provides that where the Minister is ‘satisfied that the law of a State or of any Territory makes effective provision for the protection of an area… to which a declaration applies, he or she shall revoke the declaration to the extent that it relates to the area….’. Section 13 applies to declarations made under the relevant division in the ATSIHP Act, and this would appear to include both emergency declarations and ‘other’ (longer term) declarations.
We note that s7(1) states: ‘This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act’. One element of the way the ATSIHP Act operates is that the State/Territory legislation continues as the day-to-day relevant legislation, to the extent that it is consistent with the ATSIHP Act:
- If no application for protection is made under the ATSIHP Act, then the relevant State or Territory law or its effects are not inconsistent with the ATSIHP Act, as the ATSIHP Act has not been engaged. The potential for inconsistency with the ATSIHP Act only occurs in circumstances where an application for protection is made.
- If an application for protection is made for a declaration under the ATSIHP Act, one of the factors that will weigh into the Minister’s decision making is how the area is protected under the State/Territory legislation. In this context, s7(1) appears to indicate that these pieces of State/Territory heritage legislation can continue to operate. When an application for protection is determined:
a) If the Minister makes a declaration under the ATSIHP Act, in effect, the relevant State/Territory legislation only operates to the extent that it is consistent with the ATSIHP Act and declaration and, in that context, can be limited in relation to that declaration. For example, if the State or Territory law offered protection, that protection could operate concurrently with the ATSIHP Act declaration as long as it was consistent with it (a circumstance contemplated by s7(3) ATSIHP Act). However, if there was a permit under a State or Territory law to destroy the heritage, that is likely to be inconsistent with a declaration under the ATSIHP Act.
b) If the Minister does not make a declaration under the ATSIHP Act, the relevant State or Territory legislation is not inconsistent with the ATSIHP Act in the sense that the process of applying for, and the Minister’s refusal of protection, may still be consistent with the State or Territory legislation.
The crux of how the legislation appears to function is that, on declaration of the Federal Minister, the ATSIHP Act can operate to protect a significant Aboriginal area when the State/Territory cultural heritage legislation is deemed ineffective to protect that area. In this context, s7 does not appear to operate as a limiting provision on the power of the Federal Minister to make a declaration that may be inconsistent with State/Territory legislation.
References
[1] (1993) 40 FCR 183, 211.
[2] ATSIHP Act, s9.
[3] ATSIHP Act, s10.
[4] ATSIHP Act, ss9(1) and 10(1).
[5] ATSIHP Act, s9(1).
[6] ATSIHP Act, s9(2).
[7] ATSIHP Act, s9(3).
[8] ATSIHP Act, s10(1).
[9] ATSIHP Act, s10(4).
[10] ATSIHP Act, s10(2).
[11] ATSIHP Act, s22(1).
[12] ATSIHP Act, s13(4).
