The Aboriginal Heritage Amendment Act 2016 (Vic) (Amendment Act) came into operation on 1 August 2016 and seeks to enhance the Aboriginal cultural heritage management system within Victoria. In doing so, the Amendment Act establishes new provisions and amends numerous existing provisions contained in the Aboriginal Heritage Act 2006 (Vic) (Act).
The changes are wide-ranging and affect councils in their various capacities, including as a public land manager, as an administrative decision-maker and in their interactions with traditional Aboriginal owner groups. Similarly, the changes result in extensive consequences for both developers and land-owners.
The key changes to the Act include:
- the introduction of a preliminary Aboriginal Heritage test process whereby the Secretary of the Department of Premier and Cabinet may certify whether a Cultural Heritage Management Plan (CHMP) is required for a proposed activity
- the introduction of new activity categories exempt from the need for a CHMP, comprising of development of three or more dwellings and subdivisions on lots less than 0.11 hectares on land located at least 200m from coastal waters
- the recognition, use, management and protection of Intangible Aboriginal Heritage
- an increased role of a Registered Aboriginal Party (RAP) as the primary approval body in determining applications for cultural heritage permits
- the establishment of Activity Advisory Groups constituted of Traditional Aboriginal Owner Groups, intended to assist both sponsors and the Secretary in consulting with Aboriginal people in areas where there is no RAP
- the introduction of Aboriginal Cultural Heritage Land Management Agreements (ACHLMA) between RAPs and public land managers (including councils) undertaking low-to-medium impact works or management activities
- the provision of increased access to the Aboriginal Heritage Register for specified persons and bodies.
Changes to the offence provisions
The Amendment Act contains a number of changes relating to the offence provisions contained within the Act. A detailed outline of these offence provisions is accessible here.
Prior to its enactment, in order to prosecute a person for harming Aboriginal cultural heritage under the Act, it was necessary to establish that a person not only knowingly did an act that harmed Aboriginal cultural heritage, but that he or she knew the thing harmed was Aboriginal cultural heritage. This second element proved to be a major barrier to prosecution and has been removed. It must now only be established that a person knew, was reckless or was negligent as to whether their act or omission was likely to harm Aboriginal cultural heritage.
The Amendment Act also establishes a number of new offence provisions, including:
- failure to obtain a CHMP (ie. commencing an activity for which a CHMP is required but has not been approved) – s 46 of the Act
- a strict liability offence relating to the harming of Aboriginal cultural heritage, with no mental culpability element – s 28 of the Act
- failure to comply with the conditions of a cultural heritage permit – s 41A of the Act
- failure to comply with the conditions of a CHMP – s 67A of the Act
- failure to comply with an ACHLMA – s 74G of the Act
- the use of registered Aboriginal intangible heritage for unauthorised commercial purposes without consent – s 79G of the Act
- failure to comply with an Aboriginal Intangible Heritage agreement – s 79H of the Act
- the use of information on the Register for a prohibited purpose – s 147A of the Act.
Corporate criminal responsibility
The Amendment Act also extends criminal liability to officers of a body corporate in circumstances where a body corporate commits an offence under the Act and the officer has failed to exercise due diligence.
The Amendment Act introduces a range of new defence provisions including:
- action undertaken in the course of preparing a CHMP or ACHLMA
- action undertaken in accordance with an approved CHMP or an ACHLMA
- harm caused as a result of doing an act that is necessary because of an emergency
- an officer of body corporate exercising due diligence to prevent the commission of an offence by the body corporate.
Councils, public land managers, developers and land-owners are encouraged to consider how the changes will affect their existing processes and procedures relating to Aboriginal cultural heritage, and what due diligence systems or revised protocols might be adopted.