Indigenous Australia

State / Territory

Legislation Name

Legislation

Australian Capital Territory

New South Wales

National Parks and Wildlife Act 1974 No 80

86   Harming or desecrating Aboriginal objects and Aboriginal places

(1)  A person must not harm or desecrate an object that the person knows is an Aboriginal object.

Maximum penalty:

(a)  in the case of an individual—2,500 penalty units or imprisonment for 1 year, or both, or (in circumstances of aggravation) 5,000 penalty units or imprisonment for 2 years, or both, or

(b)  in the case of a corporation—10,000 penalty units.

(2)  A person must not harm an Aboriginal object.

Maximum penalty:

(a)  in the case of an individual—500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or

(b)  in the case of a corporation—2,000 penalty units.

(3)  For the purposes of this section, circumstances of aggravation are:

(a)  that the offence was committed in the course of carrying out a commercial activity, or

(b)  that the offence was the second or subsequent occasion on which the offender was convicted of an offence under this section.

This subsection does not apply unless the circumstances of aggravation were identified in the court attendance notice or summons for the offence.

(4)  A person must not harm or desecrate an Aboriginal place.

Maximum penalty:

(a)  in the case of an individual—5,000 penalty units or imprisonment for 2 years, or both, or

(b)  in the case of a corporation—10,000 penalty units.

(5)  The offences under subsections (2) and (4) are offences of strict liability and the defence of honest and reasonable mistake of fact applies.

(6)  Subsections (1) and (2) do not apply with respect to an Aboriginal object that is dealt with in accordance with section 85A.

(7)  A single prosecution for an offence under subsection (1) or (2) may relate to a single Aboriginal object or a group of Aboriginal objects.

(8)  If, in proceedings for an offence under subsection (1), the court is satisfied that, at the time the accused harmed the Aboriginal object concerned, the accused did not know that the object was an Aboriginal object, the court may find an offence proved under subsection (2).

Note: Currently in NSW, 1 penalty unit = $110.00 (inc GST)

Northern Territory

Territory Parks and Wildlife Conservation by-laws

Section 27 - Protection of paintings and other objects

‘a person shall not, in a park or reserve, remove, interfere with or take an impression of an Aboriginal painting or historic painting, carving, object, structure or relic without the written approval of the Commission’. 

Note: Maximum penalty of $5 000. This legislation relates only to parks and reserves.

Northern Territory Sacred Sites Act

Part IV - Offences, Penalties and Procedures

Section 33 - Entry onto sacred sites

Except in the performance of a function under this Act or otherwise in accordance with this Act (including a certificate or permission or approval under this Act) or the Land Rights Act , a person shall not enter or remain on a sacred site.

Maximum penalty: In the case of a natural person – 200 penalty units or imprisonment for 12 months. In the case of a body corporate – 1 000 penalty units.

Section 34 - Work on sacred site

(1)     A person shall not carry out work on or use a sacred site.

Maximum penalty:     In the case of a natural person – 400 penalty units or imprisonment for 2 years. In the case of a body corporate – 2 000 penalty units.

(2)     It is a defence to a prosecution for an offence against subsection (1) if it is proved that the defendant carried out the work on or used the sacred site with, and in accordance with the conditions of, an Authority Certificate or a Minister's Certificate permitting the defendant to do so.

Section 35 - Desecration

‘A person shall not desecrate a sacred site’. 

The maximum penalty: In the case of a natural person is 400 penalty units or imprisonment for 2 years. In the case of a body corporate, the penalty is 2 000 penalty units. 

Note: Currently in NT, 1 penalty unit = $144.00 (inc GST)

This is relevant to all land throughout the Northern Territory.

Heritage Act

Chapter 2 Declaration of heritage places and objects. Part 2.1 Declaration of Aboriginal and Macassan heritage places and objects

Section 17 - Aboriginal or Macassan archaeological heritage places

An Aboriginal or Macassan archaeological place is a heritage place.

Section 18 - Aboriginal or Macassan archaeological heritage objectss

An Aboriginal or Macassan archaeological object is a heritage objects.

The maximum penalty for causing damage to a heritage place or object (a definition which includes Aboriginal or Macassan places and objects) is 400 penalty units or imprisonment for 2 years.

The Heritage Act automatically protects all Aboriginal or Macassan places and objects across all land tenures.

Note: Currently in NT, 1 penalty unit = $144.00 (inc GST)

This is relevant to all land throughout the Northern Territory.

Queensland

Aboriginal Cultural Heritage Act 2003 (Qld)

Part 3 Protection of Aboriginal 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

Aboriginal cultural heritage (the cultural heritage duty of care).

Maximum penalty—

(a) for an individual—1000 penalty units;

(b) for a corporation—10000 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 Aboriginal cultural heritage;

(b) the nature of the Aboriginal cultural heritage likely to be harmed by the activity;

(c) the extent to which the person consulted with Aboriginal 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 Aboriginal 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;

(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 Aboriginal cultural heritage if—

(a) the person is acting—

(i) under the authority of another provision of this Act that applies to the Aboriginal cultural heritage; or

(ii) under an approved cultural heritage management plan that applies to the Aboriginal cultural

heritage; or

(iii) under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal 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 Aboriginal 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.

24 Unlawful harm to Aboriginal cultural heritage

(1) A person must not harm Aboriginal cultural heritage if the person knows or ought reasonably to know that it is Aboriginal cultural heritage.

Maximum penalty—

(a) for an individual—

(i) if the Aboriginal cultural heritage is a registered significant area or registered significant object—1000 penalty units or 2 years imprisonment; or

(ii) otherwise—1000 penalty units;

(b) for a corporation—10000 penalty units.

(2) A person who harms Aboriginal 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 Aboriginal cultural heritage; or

(ii) under an approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or

(iii) under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal 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 Aboriginal cultural heritage is expressly or impliedly the subject of the conditions; or

(b) the person owns the Aboriginal 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 Aboriginal cultural heritage if the person knows or ought reasonably to know that it is Aboriginal cultural heritage.

Maximum penalty—

(a) for an individual—1000 penalty units;

(b) for a corporation—10000 penalty units.

(2) A person who excavates, relocates or takes away Aboriginal 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 Aboriginal cultural heritage; or

(ii) under an approved cultural heritage management plan that applies to the Aboriginal cultural heritage; or

(iii) under a native title agreement or another agreement with an Aboriginal party, unless the Aboriginal 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 Aboriginal cultural heritage is expressly or impliedly the subject of the conditions; or

(b) the person owns the Aboriginal 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 Aboriginal cultural heritage

(1) A person must not have in the person’s possession an object that is Aboriginal cultural heritage if the person knows or ought reasonably to know that the object is Aboriginal cultural heritage

Maximum penalty—

(a) for an individual—1000 penalty units;

(b) for a corporation—10000 penalty units.

(2) A person who has in the person’s possession an object that is Aboriginal 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 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 an Aboriginal 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 Aboriginal human remains.

Note: Currently in Qld, 1 penalty unit = $110.00 (inc GST)

South Australia

Aboriginal Heritage Act 1988

Part 3—Protection and preservation of Aboriginal heritage

Division 1—Discovery of, and search for, Aboriginal sites, objects and remains

20—Discovery of sites, objects or remains

(1) An owner or occupier of private land, or an employee or agent of such an owner or

occupier, who discovers on the land—

(a) an Aboriginal site; or

(b) an Aboriginal object or remains,

must, as soon as practicable, report the discovery to the Minister giving particulars of the nature and location of the site, object or remains.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in any other case—$10 000 or imprisonment for 6 months.

(2) This section does not apply to the traditional owner of the site or object or to an employee or agent of the traditional owner.

(3) The Minister may direct a person making a report to take such immediate action for the protection or preservation of the remains as the Minister considers appropriate.

(4) A person must not, without reasonable excuse, fail to comply with a direction of the Minister under this section.

Maximum penalty: $2 000 or imprisonment for 3 months.

21—Excavating sites, objects or remains

A person must not, without the authority of the Minister, excavate land for the purpose of uncovering any Aboriginal site, object or remains.

Maximum penalty:

(a) in the case of a body corporate—$50 000;

(b) in any other case—$10 000 or imprisonment for 6 months.

Tasmania

Victoria

Western Australia

Aboriginal Heritage Act 1972

17. Offences relating to Aboriginal sites

A person who —

(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or

(b) in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site, commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.

57. Penalties

(1) A person who commits an offence against this Act for which no penalty is specifically provided is liable, on summary conviction —

(a) in the case of an individual, to —

(i) for a first offence, $20 000 and imprisonment for 9 months; and

 (ii) for a second or subsequent offence, $40 000 and imprisonment for 2 years,

  and in any case, to a daily penalty of $400; and

 (b) in the case of a body corporate, to —

 (i) for a first offence, $50 000; and

 (ii) for a second or subsequent offence, $100 000,

  and in any case, to a daily penalty of $1 000.

Torres Strait Islands

Torres Strait Islander Cultural Heritage Act 2003 (Qld)

Part 3—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.

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 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, 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—

(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.

Note: Currently in TI, 1 penalty unit = $110.00 (inc GST)