Scrutiny of Acts and Regulations Committee

Alert Digest No 4 of 2006

Tuesday, 2 May 2006

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Aboriginal Heritage Bill

Introduced: 4 April 2006
Second Reading Speech: 6 April 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Gavin Jennings MLC
Portfolio responsibiliy: Minister for Aboriginal Affairs

Purpose

The Bill seeks to protect and conserve Aboriginal cultural heritage in Victoria through recognising Aboriginal people as the primary knowledge holders, keepers and guardians of Aboriginal cultural heritage.

The Bill repeals the Archaeological and Aboriginal Relics Preservation Act 1972.

Content and Committee comment

[Clauses]

[2]. The provisions of the Bill will come into operation on a day or days to be proclaimed.

The Committee notes this extract from the explanatory memorandum –

The commencement of this Bill is open-ended because it is intended to come into operation at the same time as Schedule 2 to the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill of the Commonwealth, which is still before the Commonwealth Parliament. Once it comes into operation, Schedule 2 of the Commonwealth Bill will repeal Part IIA of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 of the Commonwealth. Part IIA of that Act contains provisions which, together with the Archaeological and Aboriginal Relics Preservation Act 1972, provide the current legislative framework for the protection and management of Aboriginal cultural heritage in Victoria. That legislative framework is to be replaced by the one provided for in this Bill.

The Committee accepts that the commencement by proclamation provision is appropriate in the circumstances.

[8]. Clarifies that where an Aboriginal place or object or human remains has suffered damage or change, this does not extinguish its character as Aboriginal cultural heritage.

[9]. Clarifies that the Coroners Act 1985 continues to operate notwithstanding any provision of this Bill. Primarily this refers to the Coroners Act provisions regarding treatment of human remains relating to a notifiable death, and clarifies that where these are the remains of an Aboriginal person, the Coroners Act prevails over any applicable provision of this Bill.

[10]. Clarifies the interaction between this Bill and the Native Title Act 1993.

[Part 2 – clauses 12 to 26]. The Part deals with fundamental principles concerning the the ownership and custody of Aboriginal cultural heritage such as human remains, secret and sacred objects and places.

The first principal recognises that Aboriginal cultural heritage in the form of human remains and secret or sacred objects is owned by the Aboriginal people who have traditional and familial links to that heritage or to the area from which that heritage originates. This principle seeks to redress the past treatment of these forms of heritage as curios, commodities and objects for scientific research.

The second principal recognises that where Aboriginal human remains or secret or sacred objects are in the custody of the State, the State should continue to hold them until they can be transferred to the protection of their Aboriginal owners.

Criminal liability established by negligent act

[Part 3 – clauses 27 to 41].

[27]. Deals with the protection of aboriginal cultural heritage and sets out the offence of harming Aboriginal cultural heritage. The first and most serious relates to harm knowingly done by a person who knows that the thing harmed is Aboriginal cultural heritage. The second relates to harm knowingly done by a person who is reckless as to whether the thing harmed is Aboriginal cultural heritage. The third relates to harm knowingly done by a person who is negligent as to whether the thing harmed is Aboriginal cultural heritage.

Other provisions prohibits a person from deliberately doing an act which is likely to harm Aboriginal cultural heritage. This offence relates to such action by a person who knew at the time that their act was likely to harm Aboriginal cultural heritage (even if no harm eventuated).

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’. Clause 27(5) The Committee notes that liability may be established under proposed section 27(5) by a person knowingly harming Aboriginal cultural heritage if the person is negligent at the time of the act whether the thing was Aboriginal cultural heritage. The Committee notes that ‘negligent’ conduct is a lower threshold to establish criminal liability. Criminal liability is ordinarily established by the mental element test of ‘knowingly’ or ‘recklessly’ engaging in the conduct. Whether in the circumstances it is appropriate to provide a lower threshold to impose a pecuniary penalty (an indictable offence) is a question for Parliament’s consideration.

Compulsory acquisition of land

[31]. The Minister may acquire any land containing an Aboriginal place, either by agreement or compulsory acquisition. The procedures for the compulsory acquisition of land and related compensation under this clause are set out in the Land Acquisition and Compensation Act 1986. No compensation will be payable for any Aboriginal object or remains found on or under the surface of the land. This provision replicates section 18(7) of the Archaeological and Aboriginal Relics Preservation Act 1972.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’. Fair Compensation The Committee considered the situation that may arise where the Minister does not exercise the discretion of compulsory acquisition of land under section 31 and where a cultural heritage agreement or a protection declaration is made subsequent to the private purchase of the land. The Committee observed that in these circumstances the agreement or declaration may frustrate the purpose for which the land was purchased or may otherwise diminish the value of the land. In respect to the subsequent impact that the provisions of the Act may have on a private land owner the Committee observed that clause 191 provides for a form of relief by way of tax and rate remissions where a cultural heritage agreement or an ongoing protection declaration so restrict the purpose for which a person may use land that compliance with the agreement or declaration is not economically feasible. Given this compensatory/ relief provision the Committee will seek further advice from the Minister whether any hardship may arise in the form of economic loss as a consequence of an agreement or declaration over privately owned land where that person does not have access to the statutory compensation regime pursuant to the Land Acquisition and Compensation Act 1986. Pending further advice from the Minister the Committee draws attention to the provisions in the Bill.

[33]. A person must not possess an Aboriginal object (as defined in clause 4) if at any time they knew, or ought reasonably to have known, of its character as an Aboriginal object. Such possession is an offence under this Clause, unless specified exceptions apply.

[36]. A person may apply to the Secretary for a cultural heritage permit authorising specified activities relating to Aboriginal cultural heritage (other than human remains or secret or sacred objects).

[Part 4 – clauses 42 to 67]. Provides for cultural heritage management plans.

A cultural heritage management plan is a written report of the results of an assessment of an area to determine the presence and nature of Aboriginal cultural heritage. The report must include recommendations for measures to manage and protect any Aboriginal cultural heritage identified in that area.

[Part 5 – clauses 68 to 79]. Provides for cultural heritage agreements.

Cultural heritage agreements are voluntary agreements relating to the management or protection of Aboriginal cultural heritage, but do not deal with activities requiring either cultural heritage permits under Part 3 or cultural heritage management plans under Part 4.

[Part 6 – clauses 80 to 95]. Deals with cultural heritage audits and stop orders.

A cultural heritage audit is an assessment of an activity's impact on Aboriginal cultural heritage, with reference to an applicable cultural heritage management plan or permit under this Bill. Stop orders are described in clause 89 and are essentially orders to a person to either stop a specified activity, or refrain from starting the activity. A stop order may prevent activity from commencing or from continuing.

[Part 7 – clauses 96 to 110] . Provides for interim and long term protection declarations.

Interim protection declarations are described in clause 97, and are essentially Ministerial orders specifying measures for the protection of particular Aboriginal places or objects, for a limited period of time.

Ongoing protection declarations are described in clause 104 and are essentially Ministerial orders specifying measures for the protection of particular Aboriginal places or objects, for an unlimited period of time.

[Part 8 – clauses 111 to 129]. Make provision for disputes regarding aboriginal cultural heritage including alternate dispute resolution and a review by VCAT of various decisions of the Minister or the Secretary such as in respect to a cultural heritage management plan or regarding cultural heritage permits for activities that will, or are likely to, harm Aboriginal cultural heritage (under clause 36(1)(c)) or in regard to protection declarations decisions.

[Part 9 – clauses 130 to 147]. Establishes the Aboriginal Heritage Council ("the Council") as a body corporate with attendant rights and obligations and provides for membership appointed by the Minister. The Part sets out the Councils functions, powers and provides for other administrative and procedural matters.

[143 to 147]. Sets out the functions of the Secretary and requires the Secretary to establish and maintain the Victorian Aboriginal Heritage Register.

[Part 10 – clauses 148 to 158]. Provide for registered aboriginal parties and sets out the functions of such parties and specifies the requirements for an application to the Aboriginal Heritage Council for registration as an Aboriginal party. All applicants must be bodies corporate.

[Part 11 – clauses 159 to 187]. Makes provision for enforcement of the provisions of the Act including the appointment, powers and functions of inspectors. Other provisions provide for search and entry powers and warrants issued to enter land and premises issued by a magistrate.

Privilege against self-incrimination preserved – person to be advised that they may refuse to give information which may incriminate them

[181]. An inspector who enters land or premises under the Act may require any person present to provide assistance, give information, or produce any document, reasonably required by the inspector in order to exercise a power or perform a function under this Bill.

Failure or refusal to comply with such request, without a reasonable excuse is an offence.
However, the inspector must also advise the person that it is a reasonable excuse for non-compliance if the person does so on the ground that the information or document would tend to incriminate them.

[188]. Provides for the Minister and Secretary's delegation powers to persons employed in the Department.

[193]. Requires the Minister to conduct a review of the operation of the Act within 5 years of its commencement.

[194]. Sets out the matters in respect of which the Governor in Council may make regulations.

[195]. Repeals the Archaeological and Aboriginal Relics Preservation Act 1972.

[196]. Specifies that Schedule 1 contains saving and transitional provisions.

The Committee notes this extract from the explanatory memorandum –

Clause 11 of Schedule 1 enables regulations made under the Bill to contain provisions of a savings and transitional nature, and further provides that these provisions may be made retrospective in operation to a day on or after the commencement day. This power of retrospectivity has been included in Schedule 1 to ensure that the savings and transitional provisions in the regulations will operate effectively.

The Committee makes no further comment.

Equal Opportunity and Tolerance Legislation (Amendment) Bill

Introduced: 4 April 2006
Second Reading Speech: 6 April 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill makes miscellaneous amendments to the Equal Opportunity Act 1995 and the Racial and Religious Tolerance Act 2001.

Content and Committee comment

[Clauses]

[2]. Sections 1-4, 7 and 10(3) will come into operation on the day after Royal Assent. The remaining clauses will come into operation on proclamation but not later than 1 January 2007.

Equal Opportunity Act 1995

[3]. Amends section 108(1A) to empower the Equal Opportunity Commission to issue a notice to require any person to attend before the Commission, or a member or member of staff of the Commission or to produce specified documents. The notice may only be issued if it is reasonably necessary during the investigation phase of the complaint-handling process, for the purpose of determining whether to decline to entertain a complaint lodged pursuant to section 105 of the Act. Failure to comply with a notice issued pursuant to section 108(1A) is an offence under section 201 of the Act.

[7]. Substitutes a new section 201 to provide that a person must not, without reasonable excuse, fail to comply with a notice of the Commission under section 108(1A) or of the Chief Conciliator under section 114(2) of the Act.

Racial and Religious Tolerance Act 2001

[9]. Clarifies the meaning of “religious purpose” in section 11 by providing that “religious purpose” includes, but is not limited to, conveying or teaching a religion or proselytising.

[11]. Inserts new section 23A into the Act permitting a complainant, whose complaint was declined under section 108(1) of the Equal Opportunity Act 1995, to apply for leave to VCAT to hear the complaint. VCAT has a discretion to determine a leave application entirely on the basis of documents without any physical appearance by the parties or legal representatives, whether or not the parties agree. VCAT’s determination of the leave application is a question of law for the purposes of section 148 of the Victorian Civil and Administrative Tribunal Act 1998. This enables an applicant under sub-section (1) to seek leave to appeal to the Supreme Court for review of VCAT’s decision on the leave application.

The Committee makes no further comment.

Financial Management (Miscellaneous Amendments) Bill

Introduced: 28 March 2006
Second Reading Speech: 30 March 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Treasurer

Purpose

The Bill amends the Financial Management Act 1994 (the ‘Act’) in relation to budget management, powers over land and financial regulations and directions.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[4]. Substitutes a new section 8(1) in the Act to directly empower the Minister to give directions in writing to an authority, a public body, an accountable officer or a chief finance and accounting officer in relation to any of the matters for which regulations may be made under the Act. This power previously had to be authorised by a regulation.

[8]. Substitutes a new section 40(2) in the Act to remove a conflict with parliamentary tabling requirements. The current wording requires the annual budget estimates to be tabled when the appropriation Bills are before the House. The new section 40(2) will require that they be tabled on the day on which the second readings of the annual appropriation Bills for that year are moved, or in the case of the Legislative Council, if the Council is not sitting, on the next sitting day.

[9]. Substitutes a new section 54P in the Act to clarify the Minister's authority in relation to the licensing and leasing of surplus Crown land and buildings. Currently, the legislation empowers the Minister to grant a lease over, or a licence to enter and use, any building or other structure on Crown land that is no longer required for a public purpose. It is silent about whether this power extends to the Crown land on or around which the building stands. The proposed amendment is intended to remove this doubt and will clearly empower the Minister to enter into leases or licences for any Crown land, including the Crown land on which a building or other structure stands.

[10]. Substitutes new paragraphs in section 59(1) of the Act (regulation-making power) to reflect contemporary financial management practice and the move from a cash to accrual environment.

The Committee makes no further comment.

Terrorism (Community Protection)(Further Amendment) Bill

Introduced: 4 April 2006
Second Reading Speech: 6 April 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

This Bill amends the Terrorism (Community Protection) Act 2003 (the ‘Act’) to enhance existing counter-terrorism measures and powers by —

• extending police powers following a terrorist act to include the disposal or destruction of a contamination source or the entry on land to protect persons and prevent the spread of contamination;

• inserting a new offence of providing documents or information that facilitate terrorist acts;

• improving the operation of existing provisions that require the operators of essential services to prepare risk management plans to protect those services (and the critical infrastructure necessary for delivery of those services) from the effects of a terrorist act;

• providing offence provisions to support the obligations to prepare risk management plans or participate in training exercises;

• clarifying the obligations of occupiers of premises with respect to the reporting of the theft or loss of prescribed substances

• amending the preventative detention provisions to assist the Supreme Court's deliberations on the place of detention of a person aged under 18 years.

The Bill also amends the Public Records Act 1973 and the Freedom of Information Act 1982 to prevent the disclosure of security sensitive documents.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

Amendments to the Terrorism (Community Protection) Act 2003

[5]. Inserts a new section 4B that specifies an offence for providing documents or information that facilitate terrorist acts.

[6]. Amends section 13D and 13F to require that the Secretary to the Department of Human Services be given notice of an application for a preventative detention order in respect of a person aged less than 18 years and to require the Supreme Court to consider any evidence given or submissions made by the Secretary in determining whether such a person should be detained in a juvenile justice facility or elsewhere.

[7]. Amends section 16(1)(b) to clarify that an authorisation of the police powers to detain and decontaminate under Part 3 can be made if an area is or will be exposed to chemical, biological or radiological contamination.

[8]. Amends section 18 of the Act relevant to police powers to seize, dispose of, or destroy any source of contamination. New provisions are added to give authorised members of the police force the power to enter a place to exercise any power under an authorisation under Part 3. Entry to a place can be made without the consent of the occupier in cases where the place is not used only for residential purposes. In relation to places used only for residential purposes, entry must be with the consent of the occupier unless immediate entry is necessary to ensure the safety of any person or to prevent the spread of contamination.

[9]. Inserts a new section 18A to provide that a member of the police force must facilitate a reasonable request for medical treatment from a person detained.

[10]. Amends section 22 to ensure that an obligation under that section requires only the reporting of any unexplained theft or loss of prescribed chemicals from premises. A new definition of "unexplained loss" (i.e. loss not explained by spillage, changes in density or calibration differences) is inserted to replace sub-sections (2) and (3) of that section.

Amendment of the Public Records Act 1973

[18]. Inserts a new section 10AA to enable the declaration (published in the Government Gazette) that a specified record or class or records will not be (or cease to be) available for public inspection.

The category of documents that may be subject to this declaration are records that, if released, may damage the security or defence of the Commonwealth or any State or Territory, endanger the security of any premises or damage international relations.

Access to the specified records may be permitted by an instrument of the Minister or Keeper of Public Records, subject to any conditions or restrictions, by a specified person or class of person. A use of the records contrary to a condition or restriction is an offence.

Amendment of the Freedom of Information Act 1982

[22]. Makes a number of amendments to the Act.

• Section 28(4) is amended to enable the Secretary to the Department of Premier and Cabinet to certify that documents of a kind described in a request would be exempt under one of the categories under section 28(1), without necessarily disclosing whether such documents exist.

• Section 29A is amended to exempt from disclosure under that Act any document—

• created by the Counter-Terrorism Coordination and Emergency Management department of Victoria Police.

• that would endanger the security of premises;

• prepared under the Terrorism (Community Protection) Act 2003 that is a risk management plan, a document outlining a training exercise or a report on the adequacy of such a plan or exercise.

• The amendments apply retrospectively to pre-existing documents.

• Section 31(3) is amended to extend the existing exemption for documents created by the Bureau of Criminal Intelligence to include the Intelligence and Covert Support Department of Victoria Police. The amendment applies retrospectively to pre-existing documents.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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