Torres Strait Islander Cultural Heritage Act 2003


Queensland Crest
Torres Strait Islander Cultural Heritage Act 2003
Queensland Torres Strait Islander Cultural Heritage Act 2003 Current as at [Not applicable] Indicative reprint note This is an unofficial version of a reprint of this Act that incorporates all proposed amendments to the Act included in the Revenue and Other Legislation Amendment Bill 2018. This indicative reprint has been prepared for information only— it is not an authorised reprint of the Act . The point-in-time date for this indicative reprint is the introduction date for the Revenue and Other Legislation Amendment Bill 2018—22 August 2018. Detailed information about indicative reprints is available on the Information page of the Queensland legislation website.
© State of Queensland 2018 This work is licensed under a Creative Commons Attribution 4.0 International License.
Not authorised —indicative only Queensland Torres Strait Islander Cultural Heritage Act 2003 Contents Part 1 Division 1 1 2 3 Division 2 4 5 6 Division 3 7 8 9 10 11 12 13 Part 2 Division 1 14 Division 2 15 16 17 18 Page Preliminary Introduction Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Purpose of Act Main purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Principles underlying Act’s main purpose . . . . . . . . . . . . . . . . . . 10 How main purpose of Act is to be achieved . . . . . . . . . . . . . . . . 10 Interpretation Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Meaning of Torres Strait Islander cultural heritage . . . . . . . . . . . 11 Meaning of significant Torres Strait Islander area . . . . . . . . . . . . 12 Meaning of significant Torres Strait Islander object . . . . . . . . . . 12 Extension of evidence of occupation to surroundings . . . . . . . . . 13 Identifying significant Torres Strait Islander areas . . . . . . . . . . . 13 Interpretation to support existing rights and interests . . . . . . . . . 14 Ownership, custodianship and possession of Torres Strait Islander cultural heritage Preliminary Object and intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Torres Strait Islander human remains Ownership of Torres Strait Islander human remains . . . . . . . . . . 15 Torres Strait Islander human remains in custody of State . . . . . 15 Possession of Torres Strait Islander human remains . . . . . . . . . 16 Knowledge of Torres Strait Islander human remains . . . . . . . . . 16
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Contents Division 3 19 Division 4 20 21 Division 5 22 Part 3 Division 1 23 24 25 26 27 Division 2 28 Division 3 29 30 31 Division 4 32 33 Part 4 34 35 36 37 Part 5 Division 1 38 39 40 41 Secret and sacred objects Ownership and custody of secret or sacred object . . . . . . . . . . . 17 Other Torres Strait Islander cultural heritage Ownership of Torres Strait Islander cultural heritage . . . . . . . . . 19 Continued use of surface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Role of Queensland Museum Care of Torres Strait Islander cultural heritage . . . . . . . . . . . . . . 20 Protection of Torres Strait Islander cultural heritage Key cultural heritage protection provisions Cultural heritage duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Unlawful harm to Torres Strait Islander cultural heritage . . . . . . 23 Prohibited excavation, relocation and taking away . . . . . . . . . . . 24 Unlawful possession of Torres Strait Islander cultural heritage . 25 Court may order costs of rehabilitation or restoration . . . . . . . . . 26 Duty of care guidelines Cultural heritage duty of care guidelines . . . . . . . . . . . . . . . . . . . 27 Information about cultural heritage Information protection provision . . . . . . . . . . . . . . . . . . . . . . . . . 28 Putting cultural heritage management plan into effect . . . . . . . . 28 Other activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Protection of cultural heritage under action of Minister Stop orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Particular steps to preserve cultural heritage . . . . . . . . . . . . . . . 30 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies Native title party for an area . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Torres Strait Islander party for an area . . . . . . . . . . . . . . . . . . . . 32 Registration as Torres Strait Islander cultural heritage body . . . 33 Function of Torres Strait Islander cultural heritage body . . . . . . . 35 Collection and management of Torres Strait Islander cultural heritage information Torres Strait Islander Cultural Heritage Database Establishment of database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Purpose of establishing database . . . . . . . . . . . . . . . . . . . . . . . . 36 Placing information on database . . . . . . . . . . . . . . . . . . . . . . . . . 36 Taking information off database . . . . . . . . . . . . . . . . . . . . . . . . . 36 Page 2
42 43 44 45 Division 2 46 47 48 49 50 51 Part 6 Division 1 52 53 54 Division 2 55 56 57 58 59 60 61 62 63 64 65 Division 3 66 67 68 Torres Strait Islander Cultural Heritage Act 2003 Contents Availability of database to public generally . . . . . . . . . . . . . . . . . 37 Availability of database to Torres Strait Islander party . . . . . . . . 37 Availability of database for cultural heritage duty of care purposes 37 Availability of database to researcher . . . . . . . . . . . . . . . . . . . . . 38 Torres Strait Islander Cultural Heritage Register Establishment of register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Purpose of establishing register . . . . . . . . . . . . . . . . . . . . . . . . . 38 Recording information from cultural heritage study . . . . . . . . . . . 39 Information about cultural heritage management plans . . . . . . . 40 Keeping register up-to-date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Availability of register to public generally . . . . . . . . . . . . . . . . . . 41 Cultural heritage studies Introduction Requirements for carrying out cultural heritage study and recording findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Roles and responsibilities for carrying out cultural heritage study 41 Cultural heritage study guidelines . . . . . . . . . . . . . . . . . . . . . . . . 42 Preparing to carry out cultural heritage study Reference to part of study area may be taken to include reference to whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Giving of written notice (proposed study) . . . . . . . . . . . . . . . . . . 43 Basic information requirements for written notice (proposed study) 44 Additional requirements for notice to Torres Strait Islander cultural heritage body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Additional requirements for notice to Torres Strait Islander party 45 Additional requirements for notice to representative body . . . . . 45 Giving of public notice (proposed study) . . . . . . . . . . . . . . . . . . . 46 Torres Strait Islander cultural heritage body response to written notice and endorsement for study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Torres Strait Islander party response to written notice and endorsement for study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Torres Strait Islander party response to public notice and endorsement for study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Endorsement for study in absence of response . . . . . . . . . . . . . 48 Carrying out cultural heritage study Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Engagement of cultural heritage assessors . . . . . . . . . . . . . . . . 49 Page 3 Not authorised —indicative only
Torres Strait Islander Cultural Heritage Act 2003 Contents Not authorised —indicative only 69 70 Division 4 71 72 73 74 Division 5 75 76 77 78 Division 6 79 Part 7 Division 1 80 81 82 83 84 85 Division 2 86 87 88 Division 3 90 91 92 93 Page 4 Role of cultural heritage assessors . . . . . . . . . . . . . . . . . . . . . . . 50 Consultation supporting cultural heritage study . . . . . . . . . . . . . 51 Recording by chief executive Giving of cultural heritage study to chief executive for recording 51 Consideration of cultural heritage study before recording . . . . . . 52 Requirements for recording cultural heritage study . . . . . . . . . . . 53 Recording or refusing to record findings of cultural heritage study 54 Objections, hearing and recommendation Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Objection to refusal to record findings . . . . . . . . . . . . . . . . . . . . . 55 Land Court’s hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Land Court’s recommendation to Minister . . . . . . . . . . . . . . . . . . 56 Recording by Minister Recording or refusing to record findings of cultural heritage study 58 Cultural heritage management plans Introduction When cultural heritage management plan is or may be required—div 2 59 Requirements for developing cultural heritage management plan and having it approved—divs 3 to 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Responsibility for developing cultural heritage management plan 59 Voluntary development of cultural heritage management plan . . 59 Approved cultural heritage management plan may not require particular action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Cultural heritage management plan guidelines . . . . . . . . . . . . . . 60 Protection of cultural heritage under cultural heritage management plans Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Cultural heritage management plan needed if EIS needed . . . . . 61 Cultural heritage management plan may be needed if other environmental authority needed . . . . . . . . . . . . . . . . . . . . . . . . . 61 Preparing to develop cultural heritage management plan Reference to part of plan area may be taken to include reference to whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Giving of written notice (proposed plan) . . . . . . . . . . . . . . . . . . . 63 Basic information requirements for written notice (proposed plan) 64 Additional requirements for notice to Torres Strait Islander cultural heritage body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
94 95 96 97 98 99 100 101 Division 4 102 103 104 105 106 Division 5 107 108 109 Division 6 110 111 112 113 114 115 116 117 118 119 Division 7 120 Part 8 Division 1 Torres Strait Islander Cultural Heritage Act 2003 Contents Additional requirements for notice to Torres Strait Islander party 65 Additional requirements for notice to representative body . . . . . 66 Giving of public notice (proposed plan) . . . . . . . . . . . . . . . . . . . . 66 Torres Strait Islander cultural heritage body response to written notice and endorsement for plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Torres Strait Islander party response to written notice and endorsement for plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Torres Strait Islander party response to public notice and endorsement for plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Becoming Torres Strait Islander party after written notice (proposed plan) is given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Endorsement for plan in absence of response . . . . . . . . . . . . . . 70 Development of cultural heritage management plan Role of endorsed party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Role of sponsor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Reaching agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Approval by chief executive Chief executive approval of plan . . . . . . . . . . . . . . . . . . . . . . . . . 73 Consideration of plan before approval if no endorsed party . . . . 74 Approving or refusing to approve plan if no endorsed party . . . . 74 Objection or referral, hearing and recommendation Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Objection to Land Court to refusal to approve agreed plan . . . . . 76 Sponsor may refer plan to Land Court after unsuccessful mediation 76 Sponsor may refer plan to Land Court after failure to agree . . . . 76 Administrative details for objection or referral . . . . . . . . . . . . . . . 77 Substantive requirements for objection or referral . . . . . . . . . . . 77 Land Court’s hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Land Court’s recommendation to Minister . . . . . . . . . . . . . . . . . . 78 Reaching the recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . 79 General time requirement for making recommendation . . . . . . . 80 Approval by Minister Approving or refusing to approve plan . . . . . . . . . . . . . . . . . . . . 81 Investigation and enforcement Authorised officers Page 5 Not authorised —indicative only
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Contents 121 122 123 124 125 126 127 Division 2 Subdivision 1 128 Subdivision 2 129 130 131 132 133 Subdivision 3 134 135 136 Subdivision 4 137 138 139 140 141 142 143 144 Subdivision 5 145 146 Division 3 147 Appointment and qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 82 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . 82 When authorised officer ceases to hold office . . . . . . . . . . . . . . . 83 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Powers of authorised officers Entry of places Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Procedure for entry Entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Special warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Warrants—procedure before entry . . . . . . . . . . . . . . . . . . . . . . . 88 Powers after entry General powers after entering places . . . . . . . . . . . . . . . . . . . . . 89 Failure to help authorised officer . . . . . . . . . . . . . . . . . . . . . . . . . 90 Failure to give information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Power to seize evidence Seizing evidence at a place that may be entered without consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Seizing evidence at a place that may only be entered with consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Power to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Receipts for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Power to obtain information Power to require name and address . . . . . . . . . . . . . . . . . . . . . . 94 Failure to give name or address . . . . . . . . . . . . . . . . . . . . . . . . . 95 General enforcement matters Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Page 6
Not authorised —indicative only 148 149 150 151 Part 9 152 153 154 155 156 157 158 159 Part 10 Division 1 160 161 162 163 164 165 166 167 Division 2 168 169 170 Schedule Torres Strait Islander Cultural Heritage Act 2003 Contents Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . 97 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Obstructing authorised officers . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Miscellaneous provisions Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Access to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Advisory committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Purchase or compulsory acquisition to protect cultural heritage . 99 Proceedings for an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Transitional and validation provisions Transitional provisions for Act No. 80 of 2003 Confirmation of ownership of Torres Strait Islander cultural heritage before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Foundation material for database . . . . . . . . . . . . . . . . . . . . . . . . 103 Existing agreement for carrying out activity . . . . . . . . . . . . . . . . . 103 Permit under repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Authority obtained before commencement . . . . . . . . . . . . . . . . . 104 Cultural heritage arrangements for project authorised before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Cultural heritage arrangements for project not authorised before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 References to repealed Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Transitional and validation provisions for Revenue and Other Legislation Amendment Act 2018 Consideration of particular cultural heritage studies endorsed before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Approval of particular cultural heritage management plans endorsed before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Validation of particular acts and omissions done before commencement 107 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Page 7
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Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 1 Preliminary [s 1] Torres Strait Islander Cultural Heritage Act 2003 An Act to make provision for Torres Strait Islander cultural heritage Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Torres Strait Islander Cultural Heritage Act 2003 . 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State liable to be prosecuted for an offence. Current as at [Not applicable] Page 9
Torres Strait Islander Cultural Heritage Act 2003 Part 1 Preliminary [s 4] Division 2 Purpose of Act Not authorised —indicative only 4 Main purpose of Act The main purpose of this Act is to provide effective recognition, protection and conservation of Torres Strait Islander cultural heritage. 5 Principles underlying Act’s main purpose The following fundamental principles underlie this Act’s main purpose— (a) the recognition, protection and conservation of Torres Strait Islander cultural heritage should be based on respect for Torres Strait Islander knowledge, culture and customary practices; (b) Torres Strait Islanders should be recognised as the primary guardians, keepers and knowledge holders of Torres Strait Islander cultural heritage; (c) it is important to respect, preserve and maintain knowledge, innovations and practices of Torres Strait Islander communities and to promote understanding of Torres Strait Islander cultural heritage; (d) activities involved in recognition, protection and conservation of Torres Strait Islander cultural heritage are important because they allow Torres Strait Islanders to reaffirm their obligations to Island custom; (e) there is a need to establish timely and efficient processes for the management of activities that may harm Torres Strait Islander cultural heritage. 6 How main purpose of Act is to be achieved For achieving effective recognition, protection and conservation of Torres Strait Islander cultural heritage, this Act provides for the following— Page 10 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 1 Preliminary [s 7] (a) recognising Torres Strait Islander ownership of Torres Strait Islander human remains wherever held; (b) recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage of a secret or sacred nature held in State collections; (c) recognising Torres Strait Islander ownership of Torres Strait Islander cultural heritage that is lawfully taken away from an area by a Torres Strait Islander party for the area; (d) establishing a duty of care for activities that may harm Torres Strait Islander cultural heritage; (e) establishing powers of protection, investigation and enforcement; (f) establishing a database and a register for recording Torres Strait Islander cultural heritage; (g) ensuring Torres Strait Islanders are involved in processes for managing the recognition, protection and conservation of Torres Strait Islander cultural heritage; (h) establishing a process for the comprehensive study of Torres Strait Islander cultural heritage; (i) establishing processes for the timely and efficient management of activities to avoid or minimise harm to Torres Strait Islander cultural heritage. Division 3 Interpretation 7 Definitions The dictionary in the schedule defines particular words used in this Act. 8 Meaning of Torres Strait Islander cultural heritage Torres Strait Islander cultural heritage is anything that is— Current as at [Not applicable] Page 11
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 1 Preliminary [s 9] (a) a significant Torres Strait Islander area in Queensland; or (b) a significant Torres Strait Islander object; or (c) evidence, of archaeological or historic significance, of Torres Strait Islander occupation of an area of Queensland. 9 Meaning of significant Torres Strait Islander area A significant Torres Strait Islander area is an area of particular significance to Torres Strait Islanders because of either or both of the following— (a) Island custom; Editor’s note— Under the Acts Interpretation Act 1954 , section 36 (Meaning of commonly used words and expressions), Island custom , known in the Torres Strait as Ailan Kastom, means the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular community or group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships. (b) the history, including contemporary history, of any Torres Strait Islander party for the area. 10 Meaning of significant Torres Strait Islander object A significant Torres Strait Islander object is an object of particular significance to Torres Strait Islanders because of either or both of the following— (a) Island custom; (b) the history, including contemporary history, of a Torres Strait Islander party for an area. Page 12 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 1 Preliminary [s 11] 11 Extension of evidence of occupation to surroundings If a particular object or structure is evidence of Torres Strait Islander occupation, the area immediately surrounding the object or structure is also evidence of Torres Strait Islander occupation to the extent the area can not be separated from the object or structure without destroying or diminishing the object or structure’s significance as evidence of Torres Strait Islander occupation. 12 Identifying significant Torres Strait Islander areas (1) This section gives more information about identifying significant Torres Strait Islander areas. (2) For an area to be a significant Torres Strait Islander area, it is not necessary for the area to contain markings or other physical evidence indicating Torres Strait Islander occupation or otherwise denoting the area’s significance. (3) For example, the area might be a ceremonial place, a burial place or the site of a massacre. (4) Also, if significant Torres Strait Islander objects exist in an area and the significance of the objects is intrinsically linked with their location in the area— (a) the existence of the objects in the area is enough on its own to make the area a significant Torres Strait Islander area; and (b) if it is reasonably appropriate under this Act, the immediate area and the objects in it may be taken to be, collectively, a significant Torres Strait Islander area. (5) For identifying a significant Torres Strait Islander area, regard may be had to authoritative anthropological, biogeographical, historical and archaeological information. Current as at [Not applicable] Page 13
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 13] 13 Interpretation to support existing rights and interests A provision of this Act must not be interpreted in a way that would allow the provision to operate in a way that prejudices— (a) a right of ownership of a traditional group of Torres Strait Islanders, or of a member of a traditional group of Torres Strait Islanders, in Torres Strait Islander cultural heritage used or held for traditional purposes under Island custom; or (b) a person’s enjoyment or use of, or free access to, Torres Strait Islander cultural heritage, if— (i) the person usually lives according to Island custom as it relates to a particular group of Torres Strait Islanders; and (ii) the access, enjoyment or use is sanctioned by the Island custom; or (c) native title rights and interests. Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage Division 1 Preliminary 14 Object and intent (1) The object of this part is to make rules about ownership, custodianship and possession of Torres Strait Islander cultural heritage. (2) The basic intent underlying the rules stated in this part is that Torres Strait Islander cultural heritage should be protected. (3) A supporting intent is that, as far as practicable, Torres Strait Islander cultural heritage should be owned and protected by Page 14 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 15] Torres Strait Islanders with traditional or familial links to the cultural heritage if it is comprised of any of the following— (a) Torres Strait Islander human remains; (b) secret or sacred objects; (c) Torres Strait Islander cultural heritage lawfully taken away from an area. (4) Another supporting intent is that Torres Strait Islander cultural heritage of the type mentioned in subsection (3)(a) or (b) that is in the custody of the State, including the Queensland Museum, should continue to be protected by the State until it can be transferred into the protection of its Torres Strait Islander owners. Division 2 Torres Strait Islander human remains 15 Ownership of Torres Strait Islander human remains (1) On the commencement of this section, Torres Strait Islanders who have a traditional or familial link with Torres Strait Islander human remains in existence immediately before the commencement become the owners of the human remains if they are not already the owners. (2) Subsection (1) applies regardless of who may have owned the Torres Strait Islander human remains before the commencement of this section. 16 Torres Strait Islander human remains in custody of State (1) This section applies to Torres Strait Islander human remains if the human remains are in the custody of an entity that represents or is the State. (2) The persons who own the human remains may at any time ask the entity— (a) to continue to be the custodian of the human remains; or Current as at [Not applicable] Page 15
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 17] (b) to return the human remains to them. (3) If the entity is satisfied the persons making the request under subsection (2) are the owners of the human remains, the entity must comply with the request to the greatest practicable extent. (4) The persons who own the human remains are not limited to making only 1 request under subsection (2). Example— The owners could ask for the Queensland Museum to continue its custody of the human remains while they make suitable arrangements for dealing with the human remains, at which time they could ask for the human remains to be returned to them. 17 Possession of Torres Strait Islander human remains (1) This section applies to a person, other than the State, if the person has in the person’s possession Torres Strait Islander human remains that were in existence immediately before the commencement of this section and the person does not have the necessary traditional or familial links with the human remains to be the owner of the human remains. (2) The person must take all reasonable steps to ensure that the human remains are taken into the custody of the chief executive as soon as practicable. Maximum penalty for subsection (2)—200 penalty units. 18 Knowledge of Torres Strait Islander human remains (1) This section applies to a person if the person— (a) knows of the existence and location of Torres Strait Islander human remains, but does not own the human remains or have possession of them; and (b) knows, or ought reasonably to know, the human remains are, or are reasonably likely to be, Torres Strait Islander human remains; and (c) knows or suspects— Page 16 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 19] (i) that the chief executive does not know of the existence of the human remains; or (ii) that the chief executive knows of the existence of the human remains, but does not know the human remains are, or are reasonably likely to be, Torres Strait Islander human remains. (2) The person must— (a) as soon as practicable, advise the chief executive of the existence and location of the human remains; and (b) give the chief executive all details about the nature and location of the human remains the chief executive reasonably requires. Maximum penalty—100 penalty units. (3) For subsection (2), the obligation to advise the chief executive and to give the chief executive details must be complied with— (a) if all the circumstances giving rise to the obligation arose before the commencement of this section—as soon as practicable after the commencement; or (b) if all the circumstances giving rise to the obligation arise after the commencement, or if the circumstances arose partly before the commencement and arise partly after the commencement—as soon as practicable after all the circumstances apply. (4) For subsection (1)(c), the chief executive is taken to be in possession of any knowledge that was ever in the possession of the Minister mentioned in section 35 of the repealed Act. Division 3 Secret and sacred objects 19 Ownership and custody of secret or sacred object (1) This section applies to an object that is Torres Strait Islander cultural heritage if— Current as at [Not applicable] Page 17
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 19] (a) the object is a secret or sacred object; and Example of secret or sacred object— a ceremonial item (b) the object is, immediately before the commencement of this section, in the custody of an entity that represents or is the State, or after the commencement comes into the custody of an entity that represents or is the State. (2) The Torres Strait Islanders who have a traditional or familial link with the object, if they are not already the owners, become the owners of the object— (a) if the object was in the custody of the entity immediately before the commencement of this section—on the commencement; or (b) otherwise—when the object comes into the custody of the entity. (3) The persons who own the object may at any time ask the entity— (a) to continue to be the custodian of the object; or (b) to return the object to them. (4) If the entity is satisfied the persons making the request under subsection (3) are the owners of the object, the entity must comply with the request to the greatest practicable extent. (5) The persons who own the object are not limited to making only 1 request under subsection (3). Example— The owners could ask for the Queensland Museum to continue its custody of an object while they make suitable arrangements for dealing with the object, at which time they could ask for the object to be returned to them. Page 18 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 20] Division 4 Other Torres Strait Islander cultural heritage 20 Ownership of Torres Strait Islander cultural heritage (1) The following Torres Strait Islander cultural heritage is not in the ownership of the State— (a) human remains and secret or sacred objects owned by Torres Strait Islanders under division 2 or 3; (b) Torres Strait Islander cultural heritage passing into the ownership of a Torres Strait Islander party under this Act; (c) Torres Strait Islander cultural heritage owned by a person whose ownership is confirmed under a provision of this Act; (d) Torres Strait Islander cultural heritage owned by a person to whom ownership is lawfully transferred. (2) Otherwise, the State owns Torres Strait Islander cultural heritage. (3) Subsection (2) applies to an object or evidence that is Torres Strait Islander cultural heritage even if the object or evidence— (a) forms, or has previously formed, part of land; or (b) is located, or has previously been located, in, on or under land. (4) Subsections (2) and (3) do not operate to give the State ownership of— (a) land in which is situated an object or evidence that becomes owned by the State under subsection (2); or (b) any other land. Current as at [Not applicable] Page 19
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 2 Ownership, custodianship and possession of Torres Strait Islander cultural heritage [s 21] 21 Continued use of surface (1) This section applies if Torres Strait Islander cultural heritage is located on the surface of land, and— (a) under the tenure on which the land is held, the owner or occupier of the land is entitled to the use and enjoyment of the surface of the land; or (b) a person is otherwise entitled to the use and enjoyment of the surface of the land. (2) Despite the existence of the Torres Strait Islander cultural heritage, the owner or occupier or other person is entitled to the use and enjoyment of the land to the extent that the person does not unlawfully harm the cultural heritage. Division 5 Role of Queensland Museum 22 Care of Torres Strait Islander cultural heritage (1) The Queensland Museum may act under the Queensland Museum Act 1970 in relation to all Torres Strait Islander cultural heritage in its custody. (2) Subsection (1) applies subject to the particular requirements of this Act about the ownership, custody or protection of Torres Strait Islander cultural heritage. (3) The Queensland Museum may at any time accept custody of Torres Strait Islander cultural heritage. Page 20 Current as at [Not applicable]
Not authorised —indicative only Part 3 Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 23] Protection of Torres Strait Islander cultural heritage Division 1 Key cultural heritage protection provisions 23 Cultural heritage duty of care (1) A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Torres Strait Islander cultural heritage (the cultural heritage duty of care ). Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) Without limiting the matters that may be considered by a court required to decide whether a person has complied with the cultural heritage duty of care in carrying out an activity, the court may consider the following— (a) the nature of the activity, and the likelihood of its causing harm to Torres Strait Islander cultural heritage; (b) the nature of the Torres Strait Islander cultural heritage likely to be harmed by the activity; (c) the extent to which the person consulted with Torres Strait Islander parties about the carrying out of the activity, and the results of the consultation; (d) whether the person carried out a study or survey, of any type, of the area affected by the activity to find out the location and extent of Torres Strait Islander cultural heritage, and the extent of the study or survey; (e) whether the person searched the database and register for information about the area affected by the activity; Current as at [Not applicable] Page 21
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 23] (f) the extent to which the person has complied with cultural heritage duty of care guidelines; (g) the nature and extent of past uses in the area affected by the activity. (3) A person who carries out an activity is taken to have complied with the cultural heritage duty of care in relation to Torres Strait Islander cultural heritage if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with native title protection conditions, but only if the cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner’s agreement; or (c) the activity is necessary because of an emergency, including for example, a bushfire or other natural disaster. Page 22 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 24] 24 Unlawful harm to Torres Strait Islander cultural heritage (1) A person must not harm Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that it is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual— (i) if the Torres Strait Islander cultural heritage is a registered significant area or registered significant object—1,000 penalty units or 2 years imprisonment; or (ii) otherwise—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who harms Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Torres Strait Islander Current as at [Not applicable] Page 23
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 25] cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner’s agreement; or (c) the harm is the result of doing an act that is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. 25 Prohibited excavation, relocation and taking away (1) A person must not excavate, relocate or take away Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that it is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who excavates, relocates or takes away Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— (a) the person is acting— (i) under the authority of another provision of this Act that applies to the Torres Strait Islander cultural heritage; or (ii) under an approved cultural heritage management plan that applies to the Torres Strait Islander cultural heritage; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, Page 24 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 26] unless the Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the Torres Strait Islander cultural heritage is expressly or impliedly the subject of the conditions; or (b) the person owns the Torres Strait Islander cultural heritage, or is acting with the owner’s agreement; or (c) the excavation, relocation or taking away is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. 26 Unlawful possession of Torres Strait Islander cultural heritage (1) A person must not have in the person’s possession an object that is Torres Strait Islander cultural heritage if the person knows or ought reasonably to know that the object is Torres Strait Islander cultural heritage. Maximum penalty— (a) for an individual—1,000 penalty units; (b) for a corporation—10,000 penalty units. (2) A person who has in the person’s possession an object that is Torres Strait Islander cultural heritage does not commit an offence under subsection (1) if— Current as at [Not applicable] Page 25
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 27] (a) the person is acting— (i) under the authority of another provision of this Act that applies to the object; or (ii) under an approved cultural heritage management plan that applies to the object; or (iii) under a native title agreement or another agreement with a Torres Strait Islander party, unless the object is expressly excluded from being subject to the agreement; or (iv) in compliance with cultural heritage duty of care guidelines; or (v) in compliance with the cultural heritage duty of care; or (vi) in compliance with native title protection conditions, but only if the object is expressly or impliedly the subject of the conditions; or (b) the person owns the object, or is acting with the owner’s agreement; or (c) the person’s possession of the object is necessary because of an emergency, including for example, a bushfire or other natural disaster. (3) For subsection (1), it does not matter whether the circumstances of the person’s knowledge arose before the commencement of this section, or arise after the commencement, or arose partly before the commencement and arise partly after the commencement. (4) This section does not apply to Torres Strait Islander human remains. 27 Court may order costs of rehabilitation or restoration (1) On a conviction of a person for an offence under this division involving the unlawful harming or possessing of Torres Strait Islander cultural heritage, the court may, if considered Page 26 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 28] appropriate, order the person to pay to the State or another appropriate entity an amount for or towards— (a) the cost of any repair or restoration of the Torres Strait Islander cultural heritage needing to be carried out; and (b) the cost of any repair or restoration of anything else that is not itself the Torres Strait Islander cultural heritage, but that is associated with the Torres Strait Islander cultural heritage and also needs to be repaired or restored because of the offence. (2) In this section— conviction includes a plea of guilty or a finding of guilt by a court, even though a conviction is not recorded. Division 2 Duty of care guidelines 28 Cultural heritage duty of care guidelines (1) The Minister may by gazette notice notify guidelines ( cultural heritage duty of care guidelines ) identifying reasonable and practicable measures for ensuring activities are managed to avoid or minimise harm to Torres Strait Islander cultural heritage. (2) In formulating cultural heritage duty of care guidelines, the Minister may consult with the following— (a) Torres Strait Islander groups; (b) industry groups; (c) local governments; (d) other persons the Minister considers appropriate. Current as at [Not applicable] Page 27
Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 29] Division 3 Information about cultural heritage Not authorised —indicative only 29 Information protection provision (1) This section applies to a person who, under this Act, submits to the chief executive or the Minister a report or other document about Torres Strait Islander cultural heritage matters. (2) The person must not include in the report or other document knowledge or information given to or otherwise acquired by the person if— (a) the person knows the knowledge or information is of a secret or sacred nature; and (b) the Torres Strait Islanders in whose understanding the knowledge or information is of a secret or sacred nature have not agreed to its inclusion in the report or other document. Maximum penalty— (a) for an individual—100 penalty units; (b) for a corporation—1,000 penalty units. 30 Putting cultural heritage management plan into effect (1) A person who is involved in putting an approved cultural heritage management plan into effect must take all reasonable steps to ensure the chief executive is advised about all Torres Strait Islander cultural heritage revealed to exist because of any activity carried out under the plan. Maximum penalty— (a) for an individual—100 penalty units; (b) for a corporation—1,000 penalty units. (2) Subsection (1) does not require the giving of advice to the chief executive if giving the advice would be a contravention of the information protection provision. Page 28 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 31] 31 Other activities (1) A person who is involved in carrying out an activity, other than an activity under an approved cultural heritage management plan, may advise the chief executive of Torres Strait Islander cultural heritage revealed to exist because of the activity. (2) Subsection (1) does not authorise the giving of advice to the chief executive if giving the advice would be a contravention of the information protection provision. Division 4 Protection of cultural heritage under action of Minister 32 Stop orders (1) This section applies if the Minister is satisfied there are reasonable grounds for concluding— (a) a person is carrying out or is about to carry out an activity; and (b) either or both of the following apply— (i) in carrying out the activity, the person is or will be harming Torres Strait Islander cultural heritage; (ii) the carrying out of the activity is having or will have a significant adverse impact on the cultural heritage value of Torres Strait Islander cultural heritage. (2) The Minister may give the person a stop order for the activity. (3) The stop order must be given to the person— (a) by giving it to the person personally; or (b) if it is not reasonably practicable to give it to the person personally—by fixing it in a prominent position at the place where the activity is being carried out or is about to be carried out. Current as at [Not applicable] Page 29
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 3 Protection of Torres Strait Islander cultural heritage [s 33] (4) The stop order— (a) operates from when it is given to the person under subsection (3); and (b) unless it is revoked sooner, continues in force for 30 days from when it is given to the person, or for a shorter period stated in the order. (5) The Minister may give 1 further stop order of not more than 30 days under this section for the person’s activity. (6) A person must not knowingly contravene a stop order given to a person under this section. Maximum penalty—17,000 penalty units. (7) The penalty amount mentioned in subsection (6) is the maximum penalty amount that may be imposed for an offence under the subsection, even if the offence is committed by a corporation. (8) A stop order under this section is ineffective in its application to an activity if the activity is the subject of an injunction granted in the exercise of the exclusive jurisdiction the Land Court has for cultural heritage matters under the Land Court Act 2000 , section 32H. 33 Particular steps to preserve cultural heritage The Minister may— (a) for the State, acquire by purchase or gift Torres Strait Islander cultural heritage for the purpose of its preservation; and (b) cause structures to be erected, and other steps to be taken, that are necessary or desirable to preserve the Torres Strait Islander cultural heritage. Page 30 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies [s 34] Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies Not authorised —indicative only 34 Native title party for an area (1) Each of the following is a native title party for an area— (a) a registered native title claimant for the area; (b) a person who, at any time after the commencement of this section, was a registered native title claimant for the area, but only if— (i) the person’s claim has failed and— (A) the person’s claim was the last claim registered under the Register of Native Title Claims for the area; and (B) there is no other registered native title claimant for the area; and (C) there is not, and never has been, a registered native title holder for the area; or (ii) the person has surrendered the person’s native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or (iii) the person’s native title has been compulsorily acquired or has otherwise been extinguished; (c) a registered native title holder for the area; (d) a person who was a registered native title holder for the area, but only if— (i) the person has surrendered the person’s native title under an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements; or Current as at [Not applicable] Page 31
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies [s 35] (ii) the person’s native title has been compulsorily acquired or has otherwise been extinguished. (2) If a person would be a native title party under subsection (1)(b) but the person is no longer alive, the native title party is instead taken to be the native title claim group who, under the Commonwealth Native Title Act, authorised the person to make the relevant native title determination application. 35 Torres Strait Islander party for an area (1) A native title party for an area is a Torres Strait Islander party for the area. (2) Subsection (3) applies to a native title party for an area who— (a) is or was a registered native title claimant; or (b) is the native title claim group who authorised a person who is no longer alive, but who was a registered native title claimant, to make a native title determination application. (3) The native title party is a Torres Strait Islander party for the whole area included within the outer boundaries of the area in relation to which the application was made under the Commonwealth Native Title Act for a determination of native title, regardless of the nature and extent of the claimant’s claims in relation to any particular part of the whole area. (4) Subsection (5) applies to a native title party for an area who is or was a registered native title holder the subject of a determination of native title under the Commonwealth Native Title Act. (5) The native title party is a Torres Strait Islander party for the whole area included within the outer boundaries of the area in relation to which the application for the determination was made, regardless of the extent to which native title was found to exist in relation to any particular part of the whole area. (6) However, a native title party to whom subsection (5) applies is not a Torres Strait Islander party for a part of the area if— Page 32 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies [s 36] (a) native title was not found to exist in relation to the part; and (b) there is a registered native title claimant for the part. (7) If there is no native title party for an area, a person is a Torres Strait Islander party for the area if— (a) the person is a Torres Strait Islander with particular knowledge about traditions, observances, customs or beliefs associated with the area; and (b) the person— (i) has responsibility under Island custom for some or all of the area, or for significant Torres Strait Islander objects located or originating in the area; or (ii) is a member of a family or clan group that is recognised as having responsibility under Island custom for some or all of the area, or for significant Torres Strait Islander objects located or originating in the area. 36 Registration as Torres Strait Islander cultural heritage body (1) The Minister may, on the application of a corporation, register the corporation as a Torres Strait Islander cultural heritage body for an area. (2) The Minister must not register a corporation as a Torres Strait Islander cultural heritage body for an area if there is currently another corporation registered as a Torres Strait Islander cultural heritage body for the area or any part of the area. (3) However, the Minister may register a corporation (the new corporation ) as a Torres Strait Islander cultural heritage body for an area even though there is currently another corporation (the registered corporation ) registered as a Torres Strait Islander cultural heritage body for the area or any part of the area if— Current as at [Not applicable] Page 33
Torres Strait Islander Cultural Heritage Act 2003 Part 4 Native title parties, Torres Strait Islander parties and Torres Strait Islander cultural heritage bodies [s 36] Not authorised —indicative only (a) the new corporation’s registration is only for the purposes of a particular project; and (b) the registered corporation has given written agreement to the new corporation’s registration for the purposes of the project; and (c) the registration provides that the registration is effective only until the project finishes. (4) The Minister may register a corporation as a Torres Strait Islander cultural heritage body for an area only if the Minister is satisfied that— (a) the corporation— (i) is an appropriate body to identify Torres Strait Islander parties for the area; and (ii) has the capacity to identify Torres Strait Islander parties for the area; and (b) either— (i) Torres Strait Islander parties for the area that are native title parties for the area agree the corporation should be registered; or (ii) if there is no Torres Strait Islander party for the area that is a native title party for the area—there is substantial agreement among the Torres Strait Islander parties for the area that the corporation should be registered. Examples of corporations that may be appropriate to be registered— a registered native title body corporate, a representative body that is a corporation, a Torres Strait Islander body incorporated for furthering the interests of Torres Strait Islanders in relation to land or cultural matters (5) In deciding whether to register a corporation as the Torres Strait Islander cultural heritage body for an area, the Minister may do any of the following— (a) consult with Torres Strait Islander parties for the area or parts of the area; Page 34 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 37] (b) advertise for submissions about the proposed registration of the corporation; (c) anything else the Minister considers necessary to inform himself or herself. (6) The Minister may cancel the registration of a corporation as the Torres Strait Islander cultural heritage body for an area if the Minister is no longer satisfied about the matters mentioned in subsection (4) in relation to the corporation. (7) In this section— register , a corporation, means record the corporation in the register. 37 Function of Torres Strait Islander cultural heritage body (1) The function of a Torres Strait Islander cultural heritage body for an area is to identify, for the benefit of a person who needs to know under this Act, the Torres Strait Islander parties for the area or for a particular part of the area. (2) The Minister may give a Torres Strait Islander cultural heritage body for an area the financial or other help the body needs to carry out its function. Part 5 Collection and management of Torres Strait Islander cultural heritage information Division 1 Torres Strait Islander Cultural Heritage Database 38 Establishment of database (1) The chief executive must establish and keep the Torres Strait Islander Cultural Heritage Database. Current as at [Not applicable] Page 35
Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 39] (2) The chief executive may keep the database in the form or forms the chief executive considers to be the most appropriate in the circumstances for achieving the purpose of establishing the database. Not authorised —indicative only 39 Purpose of establishing database (1) The purpose of establishing the database is to assemble, in a central and accessible location, information about Torres Strait Islander cultural heritage. (2) The database is intended to be a research and planning tool to help Torres Strait Islander parties, researchers and other persons in their consideration of the Torres Strait Islander cultural heritage values of particular areas. (3) The placing of information on the database is not intended to be conclusive about whether the information is up-to-date, comprehensive or otherwise accurate. 40 Placing information on database (1) The chief executive may place information on the database to the extent the chief executive considers appropriate, having regard especially to the consistency of the information with existing anthropological, biogeographical, historical and archaeological information. (2) Information the chief executive places on the database may be either information another person asks the chief executive to place on the database or information the chief executive already holds. 41 Taking information off database (1) The chief executive may take information off the database if the chief executive is satisfied the information has been recorded in error. (2) However, before acting under subsection (1) to take information about Torres Strait Islander cultural heritage for a Page 36 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 42] particular area off the database, the chief executive must, to the extent it is reasonably practicable to do so, consult with any Torres Strait Islander party for the area. 42 Availability of database to public generally The chief executive must not give access to the database generally. 43 Availability of database to Torres Strait Islander party (1) This section applies if a Torres Strait Islander party for an area seeks information from the database. (2) The chief executive must give the Torres Strait Islander party information from the database to the extent that, in the chief executive’s opinion, the information on the database relates to the area. 44 Availability of database for cultural heritage duty of care purposes (1) This section applies if a person carrying out an activity, including for example a land user, seeks information from the database. (2) The chief executive must give the person information from the database if, in the chief executive’s opinion, the person has a particular need to be aware of the information for satisfying the person’s cultural heritage duty of care. (3) However, the person does not necessarily comply with the person’s cultural heritage duty of care only because the person has consulted the database. (4) If information is to be given to the person under subsection (2), the information may be given to a nominee or professional advisor acting for the person. Current as at [Not applicable] Page 37
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 45] 45 Availability of database to researcher (1) This section applies if a researcher into Torres Strait Islander cultural heritage seeks information from the database. (2) The chief executive may give the researcher information from the database to the extent that, in the chief executive’s opinion, the information on the database relates to the research. Division 2 Torres Strait Islander Cultural Heritage Register 46 Establishment of register (1) The chief executive must establish and keep the Torres Strait Islander Cultural Heritage Register. (2) The chief executive may keep the register in the form or forms the chief executive considers to be the most appropriate in the circumstances for— (a) achieving the purpose of establishing the register; and (b) ensuring the register otherwise complies with the requirements of this division. 47 Purpose of establishing register (1) The purpose of establishing the register is to assemble in a central and accessible location— (a) information contained in cultural heritage studies; and (b) information about whether particular areas have been the subject of cultural heritage management plans; and (c) information about Torres Strait Islander cultural heritage bodies; and (d) other information necessary to help the consideration of Torres Strait Islander cultural heritage, including for Page 38 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 48] example addresses for service of Torres Strait Islander parties. (2) The register is intended to be— (a) a depository for information for consideration for land use and land use planning, including, for example, for local government planning schemes and for regional planning strategies; and (b) a research and planning tool to help people in their consideration of the Torres Strait Islander cultural heritage values of particular objects and areas. 48 Recording information from cultural heritage study (1) This section applies if, under part 6, the chief executive or Minister records in the register the findings of a cultural heritage study. (2) The chief executive or Minister must record— (a) a description of the cultural heritage study adequate to distinguish it from other cultural heritage studies; and (b) a description of the study area, including, if necessary for accurately locating the study area, a plan of the area and a detailed description of its boundaries; and (c) a description of all Torres Strait Islander cultural heritage that has been identified in the study area and a description of its location; and (d) in general terms, the reasons anything identified as Torres Strait Islander cultural heritage has been so identified; and (e) if the study makes recommendations for the management of Torres Strait Islander cultural heritage identified in the study—the recommendations; and (f) for each area or object assessed as a significant Torres Strait Islander area or significant Torres Strait Islander object—the name of each Torres Strait Islander party that assessed the area or object as a significant Torres Current as at [Not applicable] Page 39
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 5 Collection and management of Torres Strait Islander cultural heritage information [s 49] Strait Islander area or significant Torres Strait Islander object; and (g) the name and contact details of each endorsed party for the study; and (h) the name of each endorsed party for the study who did not take part in the carrying out of the study; and (i) the name and contact details of each Torres Strait Islander cultural heritage body for the study area; and (j) the name and contact details of each cultural heritage assessor for the study; and (k) when the study was completed. 49 Information about cultural heritage management plans (1) The chief executive must record in the register identifying details for each cultural heritage management plan approved, or in the process of being developed, under this Act. (2) The chief executive must arrange the register in a way giving the persons searching the register reasonable access to information about— (a) whether any particular area of the State is the subject of— (i) an approved cultural heritage management plan; or (ii) a cultural heritage management plan in the process of being developed under this Act; and (b) the contact details for the sponsor and endorsed parties for each approved plan and plan being developed. 50 Keeping register up-to-date (1) The Minister may add information to, or take information off, the register if the Minister is satisfied the adding or taking off is a necessary adjustment for keeping the register up-to-date. Page 40 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 51] (2) However, before acting under subsection (1) to take information off the register, the Minister must, to the extent it is reasonably practicable to do so, consult with any Torres Strait Islander party for the area to which the information relates. (3) Information added to the register under subsection (1) is taken to be information recorded in the register. (4) Information taken off the register under subsection (1) is taken to be information no longer recorded in the register. 51 Availability of register to public generally (1) The chief executive must give access to the register generally. (2) The chief executive may require a person seeking to obtain information from the register to pay the fee prescribed under a regulation. Part 6 Cultural heritage studies Division 1 Introduction 52 Requirements for carrying out cultural heritage study and recording findings Divisions 2 to 6 state the requirements for carrying out a cultural heritage study and for having its findings recorded in the register. 53 Roles and responsibilities for carrying out cultural heritage study (1) Any person, including the Minister, may be the sponsor for a cultural heritage study. (2) However— Current as at [Not applicable] Page 41
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 54] (a) Torres Strait Islander parties are responsible for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas and significant Torres Strait Islander objects; and (b) if the findings of a cultural heritage study are to be included in the register, the study must be carried out, and its findings put in written form, in the way this part requires. 54 Cultural heritage study guidelines (1) The Minister may by gazette notice notify guidelines to help people in choosing suitable methodologies for carrying out cultural heritage studies. (2) However, a failure to conform to the guidelines is not a ground for refusing to record a cultural heritage study’s findings in the register. (3) Before notifying the guidelines, the Minister may consult with the following— (a) Torres Strait Islander groups; (b) industry groups; (c) local governments; (d) other persons the Minister considers appropriate. Division 2 Preparing to carry out cultural heritage study 55 Reference to part of study area may be taken to include reference to whole For this division, a reference relating to a part of a study area may, if it is convenient to do so, be taken to include a reference to the whole of the study area. Page 42 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 56] 56 Giving of written notice (proposed study) (1) The sponsor for a cultural heritage study must give a written notice ( written notice (proposed study) ) to— (a) the chief executive; and (b) each person who is an owner or occupier of a part of the study area; and (c) if, for a part of the study area, there is no Torres Strait Islander cultural heritage body—each Torres Strait Islander party that is a native title party for the part of the study area; and (d) each entity that is a Torres Strait Islander cultural heritage body for a part of the study area; and (e) if, for a part of the study area, there is no Torres Strait Islander cultural heritage body and there is also no Torres Strait Islander party that is a native title party— each entity that is a representative body for the part of the study area; and (f) each local government whose local government area includes a part of the study area. (2) The written notice (proposed study) must, to the greatest practicable extent, be given simultaneously to each person to whom it is required to be given. (3) If, under subsection (1)(c), the written notice is required to be given to a native title party for a part of the study area, the written notice may be sent to the address for service entered for the party in— (a) the register; or (b) if no address for service is entered in the register, but an address for service is entered in the National Native Title Register or the Register of Native Title Claims— the National Native Title Register or the Register of Native Title Claims. Current as at [Not applicable] Page 43
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 57] 57 Basic information requirements for written notice (proposed study) The written notice (proposed study) must comply with the following requirements (the basic information requirements for the notice)— (a) it must advise the sponsor’s name and contact details, including the sponsor’s address for service; (b) it must advise that the sponsor intends to carry out the cultural heritage study; (c) it must describe the study area for the study and identify its location, including, to the extent appropriate and practicable in the circumstances, by describing the study area’s location in relation to the nearest town, using bearings and approximate distances. 58 Additional requirements for notice to Torres Strait Islander cultural heritage body (1) If the written notice (proposed study) is given to a Torres Strait Islander cultural heritage body, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the body that if it wishes to identify a Torres Strait Islander party to take part in the cultural heritage study, it must give a written notice to the sponsor identifying the party and giving the party’s contact details; and (b) state the notice day (proposed study) for the study, and advise the body of the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in the cultural heritage study; and (c) advise the body that a Torres Strait Islander party identified by the body might not be endorsed to take part in the study if the body does not give the sponsor the written notice within the required time. Page 44 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 59] (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in the cultural heritage study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 59 Additional requirements for notice to Torres Strait Islander party (1) If the written notice (proposed study) is given to a Torres Strait Islander party, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the party that if it wishes to take part in the cultural heritage study, it must give a written notice to the sponsor that the party wishes to take part in the study; and (b) state the notice day (proposed study) for the study, and advise the party of the time by which the sponsor must be given the written notice that the party wishes to take part in the study; and (c) advise the party that it might not be endorsed to take part in the study if it does not give the sponsor the written notice within the required time. (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in the study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 60 Additional requirements for notice to representative body If the written notice (proposed study) is given to a representative body, the notice must, as well as complying Current as at [Not applicable] Page 45
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 61] with the basic information requirements for the notice, draw the attention of the representative body to the public notice (proposed study) published or to be published under this division. 61 Giving of public notice (proposed study) (1) This section applies if, for a part of the study area (the relevant part )— (a) there is no Torres Strait Islander cultural heritage body; and (b) there is no Torres Strait Islander party that is a native title party for the part. (2) The sponsor must ensure that a public notice ( public notice (proposed study) ) is published in a newspaper circulating generally in the relevant part. (3) If there is an approved form for the public notice (proposed study), the notice must be in the approved form. (4) The public notice (proposed study) must be published as close as practicable to the time the written notice (proposed study) is given. (5) The public notice (proposed study) must— (a) be directed to Torres Strait Islander parties for the relevant part; and (b) advise the sponsor’s name and contact details, including the sponsor’s address for service; and (c) advise that the sponsor intends to carry out the cultural heritage study; and (d) describe the study area for the study and identify its location, including, to the extent appropriate and practicable in the circumstances, by describing the study area’s location in relation to the nearest town, using bearings and approximate distances; and Page 46 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 62] (e) describe the relevant part, if it is less extensive than the study area; and (f) advise that if a Torres Strait Islander party for the relevant part wishes to take part in the study, it must give a written notice to the sponsor that the party wishes to take part in the study; and (g) state the notice day (proposed study) for the study, and advise the time by which the sponsor must be given the written notice that the party wishes to take part in the study; and (h) advise that a Torres Strait Islander party might not be endorsed to take part in the study if it does not give the sponsor the written notice within the required time. (6) For subsection (5)(g), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in the study must be— (a) the end of 30 days after the notice day (proposed study) for the study; or (b) a later time decided by the sponsor. 62 Torres Strait Islander cultural heritage body response to written notice and endorsement for study (1) A Torres Strait Islander cultural heritage body given the written notice (proposed study) relating to a part of the study area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed study), advising the sponsor of the name and contact details of each Torres Strait Islander party for the part of the area, including the party’s address for service. (2) If the sponsor receives a response from a Torres Strait Islander cultural heritage body under subsection (1) within the time required under the written notice (proposed study), the sponsor must endorse each Torres Strait Islander party identified in the response to take part in the cultural heritage study. Current as at [Not applicable] Page 47
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 63] 63 Torres Strait Islander party response to written notice and endorsement for study (1) A Torres Strait Islander party given the written notice (proposed study) relating to a part of the study area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed study), that the Torres Strait Islander party wishes to take part in the cultural heritage study. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the written notice (proposed study), the sponsor must endorse the Torres Strait Islander party to take part in the cultural heritage study. 64 Torres Strait Islander party response to public notice and endorsement for study (1) A Torres Strait Islander party to which a public notice (proposed study) is directed may respond by giving a written notice to the sponsor, within the time required under the public notice (proposed study), that the Torres Strait Islander party wishes to take part in the cultural heritage study. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the public notice (proposed study), the sponsor must endorse the Torres Strait Islander party to take part in the cultural heritage study. 65 Endorsement for study in absence of response (1) The sponsor is not required to endorse a Torres Strait Islander party for the study area to take part in the cultural heritage study if a response provided for under this part has not been given to the sponsor, or has not been given to the sponsor within the required time. (2) However, the sponsor may endorse a Torres Strait Islander party for the study area to take part in the cultural heritage Page 48 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 66] study even though the sponsor is not required to endorse the party. Division 3 Carrying out cultural heritage study 66 Role of endorsed party (1) An endorsed party for the cultural heritage study has the role of— (a) in particular, assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas significant and Torres Strait Islander objects; and (b) generally, consulting with the sponsor about the carrying out of the cultural heritage study, and giving help and advice directed at maximising the quality and authority of the study. (2) The endorsed party’s role under subsection (1)(b) may be performed on the party’s behalf by a nominee. 67 Role of sponsor The role of the sponsor for the cultural heritage study is to carry out the study— (a) in consultation with the endorsed parties for the study; and (b) in a way directed at maximising the quality and authority of the study. 68 Engagement of cultural heritage assessors (1) The sponsor may engage persons as cultural heritage assessors for the cultural heritage study. Current as at [Not applicable] Page 49
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 69] (2) An endorsed party for the cultural heritage study may ask the sponsor to engage a cultural heritage assessor for the study for a particular purpose. (3) The sponsor must comply with any reasonable request of an endorsed party under subsection (2). (4) However, the sponsor may engage a person as a cultural heritage assessor for the cultural heritage study only if the sponsor is satisfied the person is— (a) a Torres Strait Islander for the study area; or (b) an appropriately qualified person in a discipline directly relevant to the study; or Examples of disciplines that would ordinarily be expected to be directly relevant— anthropology, archaeology, history (c) another person who has particular knowledge or experience making the person suitable for engagement as a cultural heritage assessor. (5) In this section— Torres Strait Islander for the study area means a Torres Strait Islander who has particular knowledge about traditions, observances, customs or beliefs associated with the study area, and who— (a) has responsibility under Island custom for some or all of the study area, or for significant Torres Strait Islander objects located or originating in the study area; or (b) is a member of a family or clan group recognised as having responsibility under Island custom for some or all of the study area, or for significant Torres Strait Islander objects located or originating in the study area. 69 Role of cultural heritage assessors (1) A cultural heritage assessor for the cultural heritage study has the role of giving help and advice directed at maximising the quality and authority of the cultural heritage study. Page 50 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 70] (2) The cultural heritage assessor may give the help and advice only to the extent agreed to by the sponsor. Not authorised —indicative only 70 Consultation supporting cultural heritage study (1) The sponsor and each endorsed party for the cultural heritage study must take reasonable steps to consult with each other about carrying out the study. (2) Without limiting subsection (1), the sponsor and an endorsed party must consult with each other on any of the following if the sponsor or endorsed party asks for the consultation— (a) timing of the cultural heritage study generally and of particular stages of the study; (b) access to particular areas; (c) particular methods of assessment activity; (d) choosing persons to be engaged as cultural heritage assessors; (e) the reasonable requirements the sponsor may have of the endorsed party, or the endorsed party may have of the sponsor, for the carrying out of the study. (3) The sponsor must also consult with the owner or occupier of land about obtaining access to the land if the access is reasonably required for carrying out the study. Division 4 Recording by chief executive 71 Giving of cultural heritage study to chief executive for recording (1) The sponsor may give the cultural heritage study to the chief executive to record its findings in the register when the sponsor is satisfied that— (a) the study has been completed to the extent that is reasonably practicable in the circumstances; and Current as at [Not applicable] Page 51
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 72] (b) the study’s findings are in order for recording in the register. (2) The chief executive may, under this part— (a) record the findings of the study in the register; or (b) refuse to record the findings of the study in the register. (3) Subsection (2) does not authorise the chief executive to assume the role of an endorsed party for the study for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas and significant Torres Strait Islander objects. 72 Consideration of cultural heritage study before recording (1) In considering whether to record the findings of the cultural heritage study, the chief executive— (a) must have regard to the results and nature of consultation that has happened for the purposes of the study between the sponsor and endorsed parties; and (b) may seek expert advice about the study from any appropriate source; and (c) may consult with any of the following about the study— (i) endorsed parties for the study; (ii) cultural heritage assessors for the study; (iii) owners and occupiers of land included in the study area; (iv) land users of land included in the study area; (v) local governments whose local government areas include a part of the study area. (2) Without limiting subsection (1)(b) and (c), expert advice and consultation may be about the soundness and viability of recommendations included in the cultural heritage study. Page 52 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 73] Not authorised —indicative only 73 Requirements for recording cultural heritage study (1) To record the findings of the cultural heritage study in the register, the chief executive must be satisfied that— (a) the sponsor has complied with the procedures and other requirements stated in this part for the carrying out of the cultural heritage study; and (b) the findings and other information included in the cultural heritage study, including the study’s recommendations, are consistent with authoritative anthropological, biogeographical, historical and archaeological information about the study area; and (c) the cultural heritage study includes the information and other material needed for recording the study’s findings under part 5, division 2; and (d) the cultural heritage study also includes the following— (i) an explanation of how lawful access to the study area was achieved for carrying out the study, including details of any law, or of any oral or written authority given by an owner or occupier of land in the study area, authorising access to the land; (ii) a summarising statement about the existence of Torres Strait Islander cultural heritage in the study area; (iii) documented evidence about whether recommendations included in the study for future management of Torres Strait Islander cultural heritage have been agreed with affected land owners and occupiers; (iv) a description of assessment activities carried out for the study; (v) the signature of each endorsed party for the study, or the party’s nominee, who is stated in the study to be in support of information and other matters in Current as at [Not applicable] Page 53
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 74] the study, and of the recording of some or all of the study’s findings in the register; (vi) the extent to which any endorsed party for the study does not agree with the recording of the study’s findings in the register; (vii) details of each endorsed party for the study who did not in fact take part in the study. (2) If the chief executive is satisfied under subsection (1), the chief executive must record the findings of the cultural heritage study in the register. 74 Recording or refusing to record findings of cultural heritage study (1) When the chief executive records, or refuses to record, the findings of the cultural heritage study in the register, the chief executive must give written notice of the recording, or refusal to record, to— (a) the sponsor; and (b) each person who is an owner or occupier of a part of the study area; and (c) each local government whose local government area includes a part of the study area; and (d) each endorsed party for the study; and (e) each Torres Strait Islander cultural heritage body for a part of the study area. (2) The recording of findings in the register is not ineffective only because— (a) it is open to a person under division 5 to object to the recording of the findings; or (b) a person entitled to a written notice under subsection (1) does not receive the notice. (3) If the chief executive refuses to record the findings of the cultural heritage study in the register, the chief executive must Page 54 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 75] include in each written notice given under subsection (1) a statement of the chief executive’s reasons for refusing to record the findings. Not authorised —indicative only Division 5 Objections, hearing and recommendation 75 Definitions for div 5 In this division— appeal period , for a recording of the findings of the cultural heritage study in the register, or for a refusal to record the findings of the cultural heritage study in the register, means the 30 days immediately after the day the chief executive gives the written notice notifying the recording or the refusal to record. party , to an objection to a recording of the findings of the cultural heritage study in the register, or a refusal to record the findings of the cultural heritage study in the register, means each of the following— (a) the person who filed the objection with the Land Court; (b) each other person who would have been entitled to object to the Land Court to the recording or the refusal; (c) the chief executive. 76 Objection to refusal to record findings (1) A person may object to the Land Court to— (a) the chief executive’s recording in the register of the findings of the cultural heritage study; or (b) the chief executive’s refusal to record in the register the findings of the cultural heritage study. (2) However, to object, the person (the objector ) must be— (a) the sponsor for the study; or Current as at [Not applicable] Page 55
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 77] (b) an endorsed party for the study; or (c) a person who is an owner or occupier of a part of the study area; or (d) a local government whose local government area includes a part of the study area. (3) The objector must file the objection with the Land Court within the appeal period. (4) The objector must, in filing the objection with the Land Court, identify for the Land Court the names and contact details of all other persons who the objector understands to be parties to the objection. (5) As soon as practicable after receiving the objection from the objector, the Land Court must— (a) take all reasonable steps to identify all other parties to the objection; and (b) advise them of the objection. (6) The chief executive must give the Land Court all the help the chief executive can reasonably give to identify the parties to the objection. (7) The Land Court must take all reasonable steps to keep all parties to the objection informed about when the hearing of the objection is to be held. 77 Land Court’s hearing (1) The Land Court must hold a hearing of the objection. (2) All parties to the objection have the right to be heard at the hearing. 78 Land Court’s recommendation to Minister (1) After the hearing has been completed, the Land Court must recommend to the Minister— Page 56 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 78] Not authorised —indicative only (a) if the objection was to a recording of the findings of the cultural heritage study in the register— (i) that the Minister confirm the recording of the findings of the study in the register; or (ii) that the Minister take the findings of the study out of the register; or (iii) that the Minister amend the findings recorded in the register in accordance with details included in the recommendation; or (b) if the objection was to a refusal to record the findings of the cultural heritage study in the register— (i) that the Minister confirm the refusal to record the findings of the study in the register; or (ii) that the Minister record the findings of the study in the register; or (iii) that the Minister record the findings of the study in the register after amendment of the findings in accordance with details included in the recommendation. (2) Subsection (1) does not stop the Land Court, before making its recommendation to the Minister, from helping the parties to negotiate changes to the cultural heritage study. (3) For making a recommendation to the Minister about the cultural heritage study, the Land Court— (a) must have regard to the matters about which the chief executive was required to be satisfied before recording the findings of the study; and (b) may include in its considerations the nature and extent of consultation held in carrying out the study. (4) Subsection (1) does not authorise the Land Court to assume the role of an endorsed party for the study for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas and significant Torres Strait Islander objects. Current as at [Not applicable] Page 57
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 6 Cultural heritage studies [s 79] Division 6 Recording by Minister 79 Recording or refusing to record findings of cultural heritage study (1) On receiving a recommendation from the Land Court under division 5, the Minister may— (a) if the objection was to a recording of the findings of the cultural heritage study in the register— (i) confirm the recording of the findings; or (ii) take the findings of the study out of the register; or (iii) amend the findings recorded in the register in the way the Minister considers appropriate; or (b) if the objection was to a refusal to record the findings of the cultural heritage study in the register— (i) confirm the refusal to record the findings; or (ii) record the findings; or (iii) record the findings after amendment in the way the Minister considers appropriate. (2) However, in deciding what action to take, the Minister must have regard to— (a) the Land Court’s recommendation; and (b) the matters about which the chief executive was required to be satisfied before recording the findings of the study. (3) Subsection (1) does not authorise the Minister to assume the role of an endorsed party for the study for assessing the level of significance of areas and objects included in the study area that are or appear to be significant Torres Strait Islander areas and significant Torres Strait Islander objects. Page 58 Current as at [Not applicable]
Not authorised —indicative only Part 7 Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 80] Cultural heritage management plans Division 1 Introduction 80 When cultural heritage management plan is or may be required—div 2 Division 2 provides for when a cultural heritage management plan is or may be required to be developed and approved for a project. 81 Requirements for developing cultural heritage management plan and having it approved—divs 3 to 7 Divisions 3 to 7 state the requirements for developing a cultural heritage management plan for a project and for having the plan approved for the project. 82 Responsibility for developing cultural heritage management plan Any person, including the Minister, may be the sponsor for a cultural heritage management plan. 83 Voluntary development of cultural heritage management plan A person may, under this Act, develop and gain approval of a cultural heritage management plan even though there is no legal requirement for the plan. Example— A person may seek to have an approved cultural heritage management plan in place to help the person avoid breaching the cultural heritage duty of care. Current as at [Not applicable] Page 59
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 84] 84 Approved cultural heritage management plan may not require particular action In appropriate circumstances, a cultural heritage management plan developed and approved under this Act for a project may be to the effect that there are, for the project, no particular requirements for managing the impact of activities on Torres Strait Islander cultural heritage. 85 Cultural heritage management plan guidelines (1) The Minister may by gazette notice notify guidelines to help people in choosing suitable methodologies for developing cultural heritage management plans. (2) However, a failure to conform to the guidelines is not a ground for refusing to approve a cultural heritage management plan. (3) Before notifying the guidelines, the Minister may consult with the following— (a) Torres Strait Islander groups; (b) industry groups; (c) local governments; (d) other persons the Minister considers appropriate. Division 2 Protection of cultural heritage under cultural heritage management plans 86 Application of div 2 This division does not apply to a project to the extent the project is the subject of— (a) an existing agreement; or (b) a native title agreement, whenever entered into, unless Torres Strait Islander cultural heritage is expressly excluded from being subject to the agreement. Page 60 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 87] 87 Cultural heritage management plan needed if EIS needed (1) This section applies to a project if— (a) under an Act other than this Act, a lease, licence, permit, approval or other authority is required for the project; and (b) under the operation of the Act under which the authority is required, or under the operation of another Act, an EIS is required for the project. (2) The entity authorised to give the authority must not give it unless— (a) a cultural heritage management plan for the project has been developed and approved under this Act; or (b) the authority is given subject to conditions to ensure that no excavation, construction or other activity that may cause harm to Torres Strait Islander cultural heritage takes place for the project without the development and approval of a cultural heritage management plan for the project. (3) The entity authorised to give the authority has power to impose conditions mentioned in subsection (2)(b). (4) The plan area for a cultural heritage management plan developed and approved for subsection (2) may be limited to the part of the project area that is the subject of the EIS. 88 Cultural heritage management plan may be needed if other environmental authority needed (1) This section applies to a project if— (a) under an Act other than this Act— (i) a lease, licence, permit, approval or other authority is required for the project; and (ii) under the operation of the Act under which the authority is required, or under the operation of another Act, an environmental assessment is required for the project; and Current as at [Not applicable] Page 61
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 90] (b) the project is a project, or a project of a type, prescribed under a regulation for this section. (2) The entity authorised to give the authority must not give the authority unless— (a) a cultural heritage management plan for the project has been developed and approved under this Act; or (b) the authority is given subject to conditions to ensure that no excavation or construction takes place for the project without the development and approval of a cultural heritage management plan for the project. (3) The entity authorised to give the authority has power to impose conditions mentioned in subsection (2)(b). (4) The plan area for a cultural heritage management plan approved for subsection (2) may be limited to the part of the project area that is the subject of the environmental assessment. (5) The Minister may recommend the making of a regulation under subsection (1)(b) only if the Minister is satisfied the project or type of project will have a significant impact on Torres Strait Islander cultural heritage. (6) In this section— environmental assessment means a form of environmental assessment or planning, not including an EIS. Division 3 Preparing to develop cultural heritage management plan 90 Reference to part of plan area may be taken to include reference to whole For this division, a reference relating to a part of a plan area may, if it is convenient to do so, be taken to include a reference to the whole of the plan area. Page 62 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 91] Not authorised —indicative only 91 Giving of written notice (proposed plan) (1) The sponsor for a cultural heritage management plan must give a written notice ( written notice (proposed plan) ) to— (a) the chief executive; and (b) each person who is an owner or occupier of a part of the plan area; and (c) if, for a part of the plan area, there is no Torres Strait Islander cultural heritage body—each Torres Strait Islander party that is a native title party for the part of the plan area; and (d) each entity that is a Torres Strait Islander cultural heritage body for a part of the plan area; and (e) if, for a part of the plan area, there is no Torres Strait Islander party that is a native title party, and there is also no Torres Strait Islander cultural heritage body—each entity that is a representative body for the part of the plan area. (2) The written notice (proposed plan) must, to the greatest practicable extent, be given simultaneously to each person to whom it is required to be given. (3) However, the person required to be notified under subsection (1)(b) may be given the notice simultaneously with another notice given to the person in relation to the project under another Act. (4) If, under subsection (1)(c), the written notice is required to be given to a native title party for a part of the plan area, the written notice may be sent to the address for service entered for the native title party in— (a) the register; or (b) if no address for service is entered in the register, but an address for service is entered in the National Native Title Register or the Register of Native Title Claims— the National Native Title Register or the Register of Native Title Claims. Current as at [Not applicable] Page 63
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 92] 92 Basic information requirements for written notice (proposed plan) The written notice (proposed plan) must comply with the following requirements (the basic information requirements for the notice)— (a) it must advise the sponsor’s name and contact details, including the sponsor’s address for service; (b) it must identify the project; (c) it must advise that the sponsor intends to develop the cultural heritage management plan for the project; (d) it must describe the plan area for the plan and identify its location, including, to the extent appropriate and practicable in the circumstances, by describing the plan area’s location in relation to the nearest town, using bearings and approximate distances. 93 Additional requirements for notice to Torres Strait Islander cultural heritage body (1) If the written notice (proposed plan) is given to a Torres Strait Islander cultural heritage body, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the body that if it wishes to identify a Torres Strait Islander party to take part in developing the cultural heritage management plan, it must give a written notice to the sponsor identifying the party and giving the party’s contact details; and (b) state the notice day (proposed plan) for the plan, and advise the body of the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in developing the plan; and (c) advise the body that a Torres Strait Islander party identified by the body might not be endorsed to take part in developing the plan if the body does not give the sponsor the written notice within the required time. Page 64 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 94] (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice identifying a Torres Strait Islander party to take part in developing the plan must be— (a) the end of 30 days after the notice day (proposed plan) for the plan; or (b) a later time decided by the sponsor. 94 Additional requirements for notice to Torres Strait Islander party (1) If the written notice (proposed plan) is given to a Torres Strait Islander party, the notice must, as well as complying with the basic information requirements for the notice— (a) advise the party that if it wishes to take part in developing the cultural heritage management plan, it must give a written notice to the sponsor that the party wishes to take part in developing the plan; and (b) state the notice day (proposed plan) for the plan, and advise the party of the time by which the sponsor must be given the written notice that the party wishes to take part in developing the plan; and (c) advise the party that it might not be endorsed to take part in developing the plan if it does not give the sponsor the written notice within the required time. (2) For subsection (1)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in developing the plan must be— (a) the end of 30 days after the notice day (proposed plan) for the plan; or (b) a later time decided by the sponsor. Current as at [Not applicable] Page 65
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 95] 95 Additional requirements for notice to representative body If the written notice (proposed plan) is given to a representative body, the notice must, as well as complying with the basic information requirements for the notice, draw the attention of the representative body to the public notice (proposed plan) published or to be published under this division. 96 Giving of public notice (proposed plan) (1) This section applies if, for a part of the plan area (the relevant part )— (a) there is no Torres Strait Islander cultural heritage body; and (b) there is no Torres Strait Islander party that is a native title party. (2) The sponsor must ensure that a public notice ( public notice (proposed plan) ) is published in a newspaper circulating generally in the relevant part. (3) If there is an approved form for the public notice (proposed plan), the notice must be in the approved form. (4) The public notice (proposed plan) must be published as close as practicable to the time the written notice (proposed plan) is given. (5) The public notice (proposed plan) must— (a) be directed to Torres Strait Islander parties for the relevant part; and (b) advise the sponsor’s name and contact details, including the sponsor’s address for service; and (c) identify the project; and (d) advise that the sponsor intends to develop the cultural heritage management plan for the project; and (e) describe the plan area for the plan and identify its location, including, to the extent appropriate and Page 66 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 97] practicable in the circumstances, by describing the plan area’s location in relation to the nearest town, using bearings and approximate distances; and (f) describe the relevant part, if it is less extensive than the plan area; and (g) advise that if a Torres Strait Islander party for the relevant part wishes to take part in developing the plan, it must give a written notice to the sponsor that the party wishes to take part in developing the plan; and (h) state the notice day (proposed plan) for the plan, and advise the time by which the sponsor must be given the written notice that the party wishes to take part in developing the plan; and (i) advise that a Torres Strait Islander party might not be endorsed to take part in developing the plan if it does not give the sponsor the written notice within the required time. (6) For subsection (5)(h), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in developing the plan must be— (a) the end of 30 days after the notice day (proposed plan) for the plan; or (b) a later time decided by the sponsor. 97 Torres Strait Islander cultural heritage body response to written notice and endorsement for plan (1) A Torres Strait Islander cultural heritage body given the written notice (proposed plan) relating to a part of the plan area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed plan), advising the sponsor of the name and contact details of each Torres Strait Islander party for the part, including the party’s address for service. Current as at [Not applicable] Page 67
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 98] (2) If the sponsor receives a response under subsection (1) within the time required under the written notice (proposed plan), the sponsor must endorse each Torres Strait Islander party identified in the response to take part in developing the cultural heritage management plan. 98 Torres Strait Islander party response to written notice and endorsement for plan (1) A Torres Strait Islander party given the written notice (proposed plan) relating to a part of the plan area may respond by giving a written notice to the sponsor, within the time required under the written notice (proposed plan), that the Torres Strait Islander party wishes to take part in developing the cultural heritage management plan. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the written notice (proposed plan), the sponsor must endorse the Torres Strait Islander party to take part in developing the plan. 99 Torres Strait Islander party response to public notice and endorsement for plan (1) A Torres Strait Islander party to which a public notice (proposed plan) is directed may respond by giving a written notice to the sponsor, within the time required under the public notice (proposed plan), that the Torres Strait Islander party wishes to take part in developing the cultural heritage management plan. (2) If the sponsor receives a response from a Torres Strait Islander party under subsection (1) within the time required under the public notice (proposed plan), the sponsor must endorse the Torres Strait Islander party to take part in developing the plan. Page 68 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 100] 100 Becoming Torres Strait Islander party after written notice (proposed plan) is given (1) This section applies if, after the giving of the written notice (proposed plan), but before the notice day (proposed plan) for the cultural heritage management plan, an entity becomes a Torres Strait Islander party for a part of the plan area because it becomes a native title party for the part of the plan area. (2) The sponsor must give the Torres Strait Islander party a written notice that— (a) includes a copy of the written notice (proposed plan) it would have been given if it had been a Torres Strait Islander party when the written notice (proposed plan) was first given under this division; and (b) advises the time by which, despite anything in the written notice (proposed plan), the sponsor must be given the written notice that the party wishes to take part in developing the plan. (3) For subsection (2)(b), the time the sponsor advises as being the time by which the sponsor must be given the written notice that the party wishes to take part in developing the plan must be— (a) the end of 37 days after the notice day (proposed plan) for the plan; or (b) a later time decided by the sponsor. (4) A Torres Strait Islander party given a written notice under subsection (2) may respond by giving a written notice to the sponsor, within the time advised under subsection (2)(b), that the party wishes to take part in developing the plan. (5) If the sponsor receives a notice from a Torres Strait Islander party under subsection (4) within the time required under subsection (2)(b), the sponsor must endorse the Torres Strait Islander party to take part in developing the plan. (6) This section applies whether or not a public notice (proposed plan) was published. Current as at [Not applicable] Page 69
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 101] 101 Endorsement for plan in absence of response (1) The sponsor is not required to endorse a Torres Strait Islander party for the plan area to take part in developing the cultural heritage management plan if a response provided for under this part has not been given to the sponsor, or has not been given to the sponsor within the required time. (2) However, the sponsor may endorse a Torres Strait Islander party for the plan area to take part in developing the cultural heritage management plan even though the sponsor is not required to endorse the party. Division 4 Development of cultural heritage management plan 102 Role of endorsed party (1) An endorsed party for the cultural heritage management plan has the role of— (a) seeking agreement with the sponsor for the plan about how the project is to be managed— (i) to avoid harm to Torres Strait Islander cultural heritage; and (ii) to the extent that harm can not reasonably be avoided, to minimise harm to Torres Strait Islander cultural heritage; and (b) consulting and negotiating with the sponsor, and with other endorsed parties for the plan, about issues needing to be addressed in the development of the plan, and about the final content of the plan; and (c) generally, giving help and advice in a way directed at maximising the suitability of the plan for the effective protection and conservation of Torres Strait Islander cultural heritage. (2) The endorsed party’s role may be performed on the party’s behalf by a nominee. Page 70 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 103] 103 Role of sponsor The sponsor for the cultural heritage management plan has the role of— (a) seeking agreement with the endorsed parties for the plan about how the project is to be managed— (i) to avoid harm to Torres Strait Islander cultural heritage; and (ii) to the extent that harm can not reasonably be avoided, to minimise harm to Torres Strait Islander cultural heritage; and (b) developing the plan— (i) in consultation and negotiation with the endorsed parties for the plan; and (ii) in a way directed at maximising the suitability of the plan for the effective protection and conservation of Torres Strait Islander cultural heritage. 104 Consultation (1) Subjects for consultation may include, but are not limited to, the following— (a) the nature and extent of known Torres Strait Islander cultural heritage in the plan area; (b) the reasonable requirements for the carrying out of a site survey of Torres Strait Islander cultural heritage in the plan area, and the results of the survey if it is carried out; (c) reasonable travel and accommodation requirements for endorsed parties; (d) workplace health and safety issues arising out of any site survey or investigation carried out in developing the plan; Current as at [Not applicable] Page 71
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 105] (e) the number of endorsed parties, or nominees of endorsed parties, who can reasonably be involved in any site survey. (2) Consultation may include reasonable use of any of the following ways of consulting— (a) face to face meetings; (b) telephone conferences; (c) use of the internet; (d) exchanges of correspondence. (3) This division does not require a survey of Torres Strait Islander cultural heritage carried out for the purposes of consultation to be carried out as a cultural heritage study under part 6. 105 Reaching agreement (1) The sponsor and each endorsed party for the cultural heritage management plan must negotiate, and make every reasonable effort to reach agreement, about the provisions of the plan. (2) Without limiting how the plan may provide for the managing of project activities in relation to their impact on Torres Strait Islander cultural heritage, the plan may provide for the following— (a) when particular project activities are to happen; (b) when particular activities under the plan are to happen; (c) arrangements for access to land for carrying out activities under the plan, including details of arrangements entered into with owners or occupiers of land; (d) identification of known Torres Strait Islander cultural heritage, noting, if appropriate, any reference to the cultural heritage in the database or register; (e) the way Torres Strait Islander cultural heritage is to be assessed; Page 72 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 106] (f) whether Torres Strait Islander cultural heritage is to be damaged, relocated or taken away, and how this is to be managed; (g) contingency planning for disputes, unforeseen delays and other foreseeable and unforeseeable obstacles to carrying out activities under the plan; (h) other matters reasonably necessary for successfully carrying out activities under the plan. 106 Mediation (1) This section applies if at least 28 days of the consultation period for the cultural heritage management plan have elapsed, and it appears to a consultation party for the plan that— (a) a dispute has arisen between 2 or more consultation parties for the plan; and (b) the dispute is substantially delaying the development of the plan. (2) The consultation party may ask the Land Court to provide mediation of the dispute. (3) If in the opinion of the Land Court the dispute is suitable for mediation the Land Court may provide the mediation. (4) Referral of the dispute to mediation may extend the consultation period only to the extent agreed to in writing by all the consultation parties. Division 5 Approval by chief executive 107 Chief executive approval of plan (1) Whether or not the consultation period for the cultural heritage management plan has ended, the sponsor may give the plan, as developed under this part, to the chief executive for the chief executive’s approval if— Current as at [Not applicable] Page 73
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 108] (a) there is no endorsed party for the plan; or (b) there is at least 1 endorsed party for the plan, and all consultation parties for the plan agree that the chief executive may approve the plan. (2) If the circumstance mentioned in subsection (1)(a) applies, the chief executive must, under this part— (a) approve the plan; or (b) refuse to approve the plan. (3) If the circumstances mentioned in subsection (1)(b) apply, the chief executive must approve the plan. 108 Consideration of plan before approval if no endorsed party (1) This section applies if there is no endorsed party for the cultural heritage management plan. (2) To approve the plan, the chief executive must be satisfied the plan makes enough provision for how the project is to be managed— (a) to avoid harm to Torres Strait Islander cultural heritage; and (b) to the extent that harm can not reasonably be avoided, to minimise harm to Torres Strait Islander cultural heritage. (3) If the plan is not a cultural heritage management plan developed voluntarily, the chief executive must also be satisfied the plan includes agreement for effective alternate dispute resolution arrangements to deal with issues that may arise in the operation of the plan. 109 Approving or refusing to approve plan if no endorsed party (1) This section also applies if there is no endorsed party for the cultural heritage management plan. Page 74 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 110] (2) When the chief executive approves, or refuses to approve, the plan, the chief executive must give written notice of the approval, or refusal to approve, to the sponsor for the plan. (3) The approval or refusal to approve is not ineffective only because the sponsor does not receive the notice under subsection (2). (4) If the chief executive refuses to approve the plan, the chief executive must include in the written notice given under subsection (2) a written statement of the chief executive’s reasons for refusing to approve the plan. (5) The chief executive is not required to accept, but may accept, for the chief executive’s further consideration, the plan in a form amended to take account of the matters mentioned in the chief executive’s statement of reasons. Division 6 Objection or referral, hearing and recommendation 110 Definitions for div 6 In this division— appeal period , for a refusal to approve a cultural heritage management plan for which there is no endorsed party, means the 30 days immediately after the chief executive gives the sponsor the written notice notifying the refusal. party (a) to an objection to a refusal to approve a cultural heritage management plan for which there is no endorsed party—means each of the following— (i) the sponsor; (ii) the chief executive; or (b) to a referral of a cultural heritage management plan to the Land Court for approval—means each of the following— Current as at [Not applicable] Page 75
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 111] (i) each consultation party for the plan; (ii) the chief executive. 111 Objection to Land Court to refusal to approve agreed plan (1) If there is no endorsed party for the cultural heritage management plan, the sponsor for the plan may object, to the Land Court, to the chief executive’s refusal to approve the plan. (2) The sponsor must file the objection with the Land Court within the appeal period for the refusal. 112 Sponsor may refer plan to Land Court after unsuccessful mediation (1) This section applies if— (a) under division 4, a consultation party asks the Land Court to provide mediation of a dispute; and (b) the mediation is not successful in resolving the dispute; and (c) the mediator considers that resolution is unlikely before the end of the consultation period. (2) The mediator may authorise the sponsor to refer the plan to the Land Court and ask the Land Court to approve the cultural heritage management plan, even though the consultation period has not ended. (3) If the sponsor does not refer the plan on the mediator’s authority, the sponsor is not prevented from acting under this division to refer the plan to the Land Court. 113 Sponsor may refer plan to Land Court after failure to agree (1) This section applies if— Page 76 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 114] (a) there is at least 1 endorsed party for the cultural heritage management plan; and (b) the consultation period for the plan has ended; and (c) all consultation parties have not agreed that the chief executive may approve the plan. (2) The sponsor for the plan may refer the plan to the Land Court and ask the Land Court to approve the plan. (3) The sponsor must ensure that a referral of the plan to the Land Court happens within a reasonable time after the end of the consultation period for the plan. 114 Administrative details for objection or referral (1) The sponsor must, in filing an objection or referral with the Land Court, identify for the Land Court the names and contact details of all other parties to the objection or referral. (2) As soon as practicable after receiving the objection or referral from the sponsor, the Land Court must advise all other parties of the objection or referral. (3) The Land Court must take all reasonable steps to keep all parties to the objection or referral informed about when any hearing of the objection or referral is to be held. 115 Substantive requirements for objection or referral (1) The sponsor must, in filing an objection or referral with the Land Court, give the Land Court a document that— (a) unless there is no endorsed party for the cultural heritage management plan—outlines the nature and extent of the consultation that happened in the consultation period for the plan; and (b) states why the sponsor believes the plan makes enough provision for how the project is to be managed— (i) to avoid harm to Torres Strait Islander cultural heritage; and Current as at [Not applicable] Page 77
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 116] (ii) to the extent that harm can not reasonably be avoided, to minimise harm to Torres Strait Islander cultural heritage. (2) The Land Court must— (a) give each other party to the objection or referral a copy of the document given to the Land Court under subsection (1); and (b) for a referral—invite each other party to the referral to make a written submission to the Land Court about the plan and the sponsor’s submission on the plan. (3) The Land Court is required to take account of a party’s written submission given on an invitation under subsection (2)(b) only if the Land Court receives the submission within 30 days after the Land Court gives the copy of the document to the party under subsection (2)(a). 116 Land Court’s hearing (1) The Land Court may hold, but is not required to hold, a hearing of an objection or referral. (2) All parties to the objection or referral have the right to be heard at the hearing. (3) The Land Court may order mediation before the hearing if the Land Court considers mediation may successfully resolve any dispute about the cultural heritage management plan. 117 Land Court’s recommendation to Minister (1) After the hearing has been completed, or, if no hearing is held, after the Land Court has considered the sponsor’s document and any submission properly received by the Land Court, the Land Court must give its recommendation about the cultural heritage management plan to the Minister. (2) The Land Court’s recommendation must be— (a) that the Minister— Page 78 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 118] (i) for an objection—confirm the chief executive’s refusal to approve the plan; or (ii) for a referral—refuse to approve the plan; or (b) that the Minister approve the plan; or (c) that the Minister approve the plan after amendment of the plan in accordance with details included in the recommendation. (3) Subsection (2) does not stop the Land Court, before making its recommendation to the Minister, from helping the parties to negotiate changes to the plan. (4) Subsections (5) and (6) apply only if there is at least 1 endorsed party for the plan. (5) If, before the Land Court makes a recommendation to the Minister, all the consultation parties agree that the plan should be approved, the sponsor may give the plan, as agreed to, to the chief executive. (6) The giving of the plan to the chief executive under subsection (4) is taken to be a giving of the plan to the chief executive under division 5, in the circumstances that there is at least 1 endorsed party for the plan, and all consultation parties for the plan agree that the chief executive may approve the plan. 118 Reaching the recommendation (1) To recommend that the Minister approve the cultural heritage management plan, or that the Minister approve the plan after amendment, the Land Court must be satisfied the plan makes, or after suitable amendment will make, enough provision for how the project is to be managed— (a) to avoid damage to Torres Strait Islander cultural heritage; and (b) to the extent that damage can not reasonably be avoided, to minimise damage to Torres Strait Islander cultural heritage. Current as at [Not applicable] Page 79
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 7 Cultural heritage management plans [s 119] (2) If the plan is not a cultural heritage management plan developed voluntarily, the Land Court must also be satisfied the plan provides for effective alternate dispute resolution arrangements to deal with issues that may arise in the operation of the plan. (3) The Land Court must also be satisfied that, for Torres Strait Islander cultural heritage that is to be or may be taken away when the plan is put into effect, the plan makes enough provision about— (a) who is to become the owner of it; and (b) who is to have the custody of it. (4) For making its recommendation to the Minister about the plan, the Land Court must include the following in its considerations— (a) the availability and quality of documented information about the Torres Strait Islander cultural heritage significance of the plan area; (b) the nature of the impacts of the project; (c) submissions made by the parties to the objection or referral, including, if a hearing is held, oral submissions made at the hearing; (d) the nature and extent of past uses of the project area. 119 General time requirement for making recommendation (1) The Land Court must take all reasonable steps to make sure that its recommendation about the cultural heritage management plan is given to the Minister within 4 months after the objection or referral is filed with the Land Court. (2) If the recommendation is not made within the 4 months, the Land Court must, as soon as practicable after the 4 months ends, give a written notice to the Minister— (a) advising why the recommendation has not yet been made; and Page 80 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 120] (b) giving an estimate of when the recommendation is likely to be made. Not authorised —indicative only Division 7 Approval by Minister 120 Approving or refusing to approve plan (1) On receiving a recommendation from the Land Court under division 6, the Minister may— (a) for an objection—confirm the chief executive’s refusal to approve the cultural heritage management plan; or (b) for a referral—refuse to approve the plan; or (c) approve the plan; or (d) approve the plan after amendment of the plan in accordance with the Minister’s direction. (2) However, in deciding what action to take, the Minister must have regard to— (a) the Land Court’s recommendation; and (b) the matters about which the chief executive was or would have been required to be satisfied before approving the plan. Part 8 Investigation and enforcement Division 1 Authorised officers 121 Appointment and qualifications (1) The chief executive may appoint a public service employee as an authorised officer. (2) However, the chief executive may appoint a person as an authorised officer only if the chief executive is satisfied the Current as at [Not applicable] Page 81
Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 122] person is qualified for appointment because the person has the necessary expertise or experience. Not authorised —indicative only 122 Appointment conditions and limit on powers (1) An authorised officer holds office on any conditions stated in— (a) the authorised officer’s instrument of appointment; or (b) a signed notice given to the authorised officer; or (c) a regulation. (2) The instrument of appointment, a signed notice given to the authorised officer or a regulation may limit the authorised officer’s powers under this Act. (3) In this section— signed notice means a notice signed by the chief executive. 123 Issue of identity card (1) The chief executive must issue an identity card to each authorised officer. (2) The identity card must— (a) contain a recent photo of the authorised officer; and (b) contain a copy of the authorised officer’s signature; and (c) identify the person as an authorised officer under this Act; and (d) state an expiry date for the card. (3) This section does not prevent the issue of a single identity card to a person for this Act and other purposes. 124 Production or display of identity card (1) In exercising a power under this Act in relation to a person, an authorised officer must— Page 82 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 125] (a) produce the authorised officer’s identity card for the person’s inspection before exercising the power; or (b) have the identity card displayed so it is clearly visible to the person when exercising the power. (2) However, if it is not practicable to comply with subsection (1), the authorised officer must produce the identity card for the person’s inspection at the first reasonable opportunity. (3) For subsection (1), an authorised officer does not exercise a power in relation to a person only because the authorised officer, as authorised under this Act, enters— (a) a public place when it is open to the public; or (b) a place for the purpose of asking the occupier of the place for consent to enter. 125 When authorised officer ceases to hold office (1) An authorised officer ceases to hold office if any of the following happens— (a) the term of office stated in a condition of office ends; (b) under another condition of office, the authorised officer ceases to hold office; (c) the authorised officer’s resignation takes effect. (2) Subsection (1) does not limit the ways an authorised officer may cease to hold office. (3) In this section— condition of office means a condition on which the authorised officer holds office. 126 Resignation An authorised officer may resign by signed notice given to the chief executive. Current as at [Not applicable] Page 83
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 127] 127 Return of identity card A person who ceases to be an authorised officer must return the person’s identity card to the chief executive within 21 days after ceasing to be an authorised officer unless the person has a reasonable excuse. Maximum penalty—50 penalty units. Division 2 Powers of authorised officers Subdivision 1 Entry of places 128 Power to enter places (1) An authorised officer may enter a place if— (a) its occupier consents to the entry; or (b) it is a public place and the entry is made when the place is open to the public; or (c) the entry is authorised by a warrant. (2) For the purpose of asking the occupier of a place for consent to enter, an authorised officer may, without the occupier’s consent or a warrant— (a) enter land around premises at the place to an extent that is reasonable to contact the occupier; or (b) enter part of the place the authorised officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier. Page 84 Current as at [Not applicable]
Not authorised —indicative only Subdivision 2 Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 129] Procedure for entry 129 Entry with consent (1) This section applies if an authorised officer intends to ask an occupier of a place to consent to the authorised officer or another authorised officer entering the place. (2) Before asking for the consent, the authorised officer must tell the occupier— (a) the purpose of the entry; and (b) that the occupier is not required to consent. (3) If the consent is given, the authorised officer may ask the occupier to sign an acknowledgement of the consent. (4) The acknowledgement must state— (a) the occupier has been told— (i) the purpose of the entry; and (ii) that the occupier is not required to consent; and (b) the purpose of the entry; and (c) the occupier gives the authorised officer consent to enter the place and exercise powers under this Act; and (d) the time and date the consent was given. (5) If the occupier signs the acknowledgement, the authorised officer must immediately give a copy to the occupier. (6) If— (a) an issue arises in a proceeding about whether the occupier consented to the entry; and (b) an acknowledgement complying with subsection (4) for the entry is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented. Current as at [Not applicable] Page 85
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 130] 130 Application for warrant (1) An authorised officer may apply to a magistrate for a warrant for a place. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. Example— The magistrate may require additional information supporting the application to be given by statutory declaration. 131 Issue of warrant (1) The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence ) that may provide evidence of an offence against this Act; and (b) the evidence is at the place, or may be at the place within the next 7 days. (2) The warrant must state— (a) that any authorised officer or a stated authorised officer may, with necessary and reasonable help and force— (i) enter the place and any other place necessary for entry; and (ii) exercise the authorised officer’s powers under this Act; and (b) the offence for which the warrant is sought; and (c) the evidence that may be seized under the warrant; and (d) the hours of the day or night when the place may be entered; and Page 86 Current as at [Not applicable]
Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 132] (e) the date, within 14 days after the warrant’s issue, the warrant ends. Not authorised —indicative only 132 Special warrants (1) An authorised officer may apply for a warrant (a special warrant ) by phone, fax, radio or another form of communication if the authorised officer considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances, including, for example, the authorised officer’s remote location. (2) Before applying for the special warrant, the authorised officer must prepare an application stating the grounds on which the warrant is sought. (3) The authorised officer may apply for the special warrant before the application is sworn. (4) After issuing the special warrant, the magistrate must immediately fax a copy (the facsimile warrant ) to the authorised officer if it is reasonably practicable to fax the copy. (5) If it is not reasonably practicable to fax a copy to the authorised officer— (a) the magistrate must tell the authorised officer— (i) what the terms of the special warrant are; and (ii) the date and time the special warrant was issued; and (b) the authorised officer must complete a form of warrant (a warrant form ) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the special warrant; and (iii) the terms of the special warrant. Current as at [Not applicable] Page 87
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 133] (6) The facsimile warrant, or the warrant form properly completed by the authorised officer, authorises the entry and the exercise of the other powers stated in the special warrant issued. (7) The authorised officer must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if the authorised officer completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the special warrant. (9) If— (a) an issue arises in a proceeding about whether an exercise of a power was authorised by a special warrant; and (b) the warrant is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a special warrant authorised the exercise of the power. 133 Warrants—procedure before entry (1) This section applies if an authorised officer is intending to enter a place under a warrant issued under this part. (2) Before entering the place, the authorised officer must do or make a reasonable attempt to do the following things— (a) identify himself or herself to a person present at the place who is an occupier of the place by producing a copy of the authorised officer’s identity card or other document evidencing the authorised officer’s appointment; (b) give the person a copy of the warrant or, if the entry is authorised by a facsimile warrant or warrant form, a copy of the facsimile warrant or warrant form; Page 88 Current as at [Not applicable]
Not authorised —indicative only Torres Strait Islander Cultural Heritage Act 2003 Part 8 Investigation and enforcement [s 134] (c) tell the person the authorised officer is permitted by the warrant to enter the place; (d) give the person an opportunity to allow the authorised officer immediate entry to the place without using force. (3) However, the authorised officer need not comply with subsection (2) if the authorised officer believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated. Subdivision 3 Powers after entry 134 General powers after entering places (1) This section applies to an authorised officer who enters a place. (2) However, if an authorised officer enters a place to get the occupier’s consent to enter premises, this section applies to