By David Passarella, Partner
The Aboriginal Heritage Amendment Act 2016 (Amendment Act) will come into effect on 1 August 2016 and makes substantial changes to the Aboriginal Heritage Act 2006 (Principal Act) and the way in which Aboriginal cultural heritage is managed in Victoria. From a planning perspective, some key amendments to the Principal Act include the introduction of the Preliminary Aboriginal Heritage Test (PAHT) process, the introduction of additional offences and the broadening in scope of some current offences.
The Amendment Act introduces the voluntary PAHT process whereby a proponent may prepare a PAHT for the purposes of determining whether the proposed activity requires a Cultural Heritage Management Plan (CHMP). If the PAHT determines that no CHMP is required, the proponent can then apply to the Secretary for certification of the PAHT. The intention is that this certificate is then provided to the Responsible Authority as evidence that there are no Aboriginal cultural heritage requirements for the proposed development, so that a planning permit may be issued.
The Amendment provides that the Secretary has 21 days to certify a PAHT, not including the days which elapse while the Secretary is waiting for the provision of more information from the proponent. Notably, there are no appeal rights against the Secretary’s decision.
This voluntary PAHT process is intended to replace (to a large extent) the current process of engaging a private heritage advisor to undertake due diligence investigations to ascertain whether a CHMP is required. However, we note that under the PAHT process, the proponent carries the burden of establishing that a CHMP is not required and the criteria used by the Office of Aboriginal Affairs Victoria to assess the PAHT will be very stringent. In practice, the PAHT process may thus be a more onerous and less flexible option for proponents.
Introduction of offences
The Amendment Act will introduce new offences, including:
- Commencing activity without a CHMP – the Amendment Act introduces the new offence of commencing activity without an Approved CHMP where the person knew, or was reckless or negligent as to whether, a CHMP was required.
- Non-compliance with an Approved CHMP – the Amendment Act alters the nature of Approved CHMPs by introducing the offence of knowingly, recklessly or negligently failing to comply with an Approved CHMP. These offences are clearly introduced to establish the mandatory nature of CHMP conditions, given that recommendations contained in a CHMP are currently not enforceable unless there is also a direct breach of the Principal Act or compliance is required by some other instrument.
Broadening of current offences
The Amendment Act broadens the scope of the main offences in the Principal Act relating to harming Aboriginal cultural heritage. Presently, under Section 27 of the Principal Act, a person is guilty of an offence if the person knowingly does an act that harms Aboriginal cultural heritage when at the time the person knew that the thing harmed was Aboriginal cultural heritage or was reckless or negligent as to whether the thing harmed was Aboriginal cultural heritage (emphasis added).
The Amendment Act expands the above and provides that a person is guilty of an offence if:
- the person by an act or omission harms Aboriginal cultural heritage; and
- at the time of the act or omission the person knew that the act or omission was likely to harm Aboriginal cultural heritage or was reckless or negligent as to whether the act or omission was likely to harm Aboriginal cultural heritage (emphasis added).
In this regard, the Amendment Act expands the offence to apply to omissions as well as acts and requires the assessment of mental culpability once only in relation to whether an act/omission is merely likely to harm Aboriginal cultural heritage.
Further, the Amendment Act inserts a replacement Section 28, which introduces a strict liability offence for doing an act that harms or is likely to harm Aboriginal cultural heritage. While this section is intended to apply in cases of less harmful actions than those to which Section 27 applies, the introduction of a strict liability offence signals a clear focus on strengthening the deterrent aspects of the Principal Act.
The Amendment Act significantly modifies the Principal Act and the way in which Aboriginal cultural heritage is managed in Victoria. In terms of its interaction with the planning permit process, the Amendment Act will generate significant changes through the introduction of the PAHT process, the introduction of new offences and the expansion of some current offences. These changes will considerably impact the way in which proponents engage with the planning permit process and will impose stricter compliance obligations on them. Proponents will need to educate themselves on the amendments and seek advice where necessary.
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