The Aboriginal Heritage Amendment Act 2016 (Victoria) is scheduled to commence on 1 August 2016. The Act is a result of a lengthy review of the Aboriginal Heritage Act 2006 (Vic) that was carried out by successive Victorian governments from 2010 to 2014. The Act contains a series of provisions allowing the protection of non-physical elements of Aboriginal culture heritage, for example traditional songs, rituals or festivals. According to a press release issued by Minister for Aboriginal Affairs, Natalie Hutchins, Victoria is only the second Commonwealth jurisdiction after Quebec to create protection for this type of intangible heritage. She said:
“The influence of Aboriginal culture on Victorian society has not been properly acknowledged in our past, and it is important we recognise its value in the future. Aboriginal people in Victoria will now be able to shape the nature of cultural heritage and control how their cultural knowledge is used by others.”
The Act inserts a new Part 5A into the Principal Act to provide a process for registered Aboriginal parties and traditional owner organisations to nominate particular intangible heritage for registration. “Aboriginal intangible heritage” is described as:
“any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public… [or] any intellectual creation or innovation based on or derived from [it].”
If the registration is successful, it becomes an offence under the new section 79G of the Act to “use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity”. The maximum penalty under this section, for “knowingly use”, is 1800 penalty units for an individual (currently approximately $273,000) or 10,000 for a corporation (approximately $1.5 million).
The new Act will also ensure the Victorian Aboriginal Heritage Council, rather than the government, has decision-making powers over how Aboriginal ancestral remains should be treated. Universities and museums will have two years to report to the Council about any remains they possess, and the Council will be able to decide what should happen to these. The Act also establishes an Aboriginal Cultural Heritage Fund, to be used for the protection and management of Aboriginal cultural heritage.
The Act also adds a new strict liability offence for causing harm to Aboriginal cultural heritage, in addition to adding new offences, such as failing to comply with the conditions of a cultural heritage management plan. Speaking on the Act in Parliament, Ms Hutchins noted that:
“In the eight years of the act's operation, the Office of Aboriginal Affairs Victoria has undertaken almost 200 investigations into potential offences. Despite unauthorised harm to Aboriginal cultural heritage occurring, there has yet to be a case of unauthorised harm brought before the courts…
Government has listened to many during the review of the act who bemoaned the difficulty of proving a case of harm, and the consequent undermining of the act's objectives.”
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Aboriginal Heritage Amendment Act 2016 (Vic), Bill, Explanatory Memorandum & Second Reading Speech - available from TimeBase's LawOne service
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