An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
2 Commencement
This Act shall come into operation on the day on which it receives the Royal Assent.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Aboriginal means a member of the Aboriginal race of Australia, and includes a descendant of the indigenous inhabitants of the Torres Strait Islands.
Aboriginal remains means the whole or part of the bodily remains of an Aboriginal, but does not include:
(a) a body or the remains of a body:
(i) buried in accordance with the law of a State or Territory; or
(ii) buried in land that is, in accordance with Aboriginal tradition, used or recognized as a burial ground;
(b) an object made from human hair or from any other bodily material that is not readily recognizable as being bodily material; or
(c) a body or the remains of a body dealt with or to be dealt with in accordance with a law of a State or Territory relating to medical treatment or post‑mortem examinations.
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
area includes a site.
Australian waters means:
(a) the territorial sea of Australia and any sea on the landward side of that territorial sea;
(b) the territorial sea of an external Territory and any sea on the landward side of that territorial sea; or
(c) the sea over the continental shelf of Australia.
Federal Court means the Federal Court of Australia.
significant Aboriginal area means:
(a) an area of land in Australia or in or beneath Australian waters;
(b) an area of water in Australia; or
(c) an area of Australian waters;
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition.
significant Aboriginal object means an object (including Aboriginal remains) of particular significance to Aboriginals in accordance with Aboriginal tradition.
(2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
(b) in the case of an object—it is used or treated in a manner inconsistent with Aboriginal tradition;
and references in this Act to injury or desecration shall be construed accordingly.
(3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.
4 Purposes of Act
The purposes of this Act are the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
5 Extension to Territories
This Act extends to every external Territory.
6 Act binds the Crown
This Act binds the Crown in each of its capacities.
6A Application of the Criminal Code
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
7 Application of other laws
(1) 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.
(2) A law of a Territory has effect to the extent to which it is not inconsistent with a provision of the regulations, or of a declaration under this Act, having effect in that Territory, but such a law shall not be taken for the purposes of this subsection to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision.
(3) Where:
(a) a law of a State or Territory deals with a matter dealt with in this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act or an offence referred to in paragraph 23(1)(b);
the person may be prosecuted and convicted under that law or under this Act, the Criminal Code or the Crimes Act 1914, as the case may be, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
(4) Nothing in this Act derogates from the rights of any person to any remedy consistent with this Act that he or she would have apart from this Act.
8 Application of Act
(1) Subject to subsection (2), this Act applies, according to its tenor, to all persons, including foreigners, and to all vessels, including foreign vessels, whether or not they are within Australia or Australian waters.
(2) This Act has effect subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or other countries.