Commonwealth Parliament Introduces Underwater Cultural Heritage Bill 2018

“The Bill modernises the regulatory framework to protect Australia’s underwater cultural heritage and includes measures to align the legislation with current international best practice standards for the protection and management of underwater cultural heritage as defined by the UNESCO 2001 Convention for the Protection of the Underwater Cultural Heritage (the Convention). The Bill continues the system for protecting in-situ underwater cultural heritage and underwater cultural heritage that has been removed from sites established under the Historic Shipwrecks Act.”

1. (a) “Underwater cultural heritage” means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years such as:

1. sites, structures, buildings, artefacts and human remains, together with their archaeological and natural context;
2. vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and
3. objects of prehistoric character.

• Obligation to Preserve Underwater Cultural Heritage - States Parties should preserve underwater cultural heritage and take action accordingly. This does not mean that ratifying States would necessarily have to undertake archaeological excavations; they only have to take measures according to their capabilities. The Convention encourages scientific research and public access.
• In Situ Preservation as first option - The in situ preservation of underwater cultural heritage (i.e. in its original location on the seafloor) should be considered as the first option before allowing or engaging in any further activities. The recovery of objects may, however, be authorized for the purpose of making a significant contribution to the protection or knowledge of underwater cultural heritage.
• No Commercial Exploitation - The 2001 Convention stipulates that underwater cultural heritage should not be commercially exploited for trade or speculation, and that it should not be irretrievably dispersed. This regulation is in conformity with the moral principles that already apply to cultural heritage on land. It is not to be understood as preventing archaeological research or tourist access.
• Training and Information Sharing - States Parties shall cooperate and exchange information, promote training in underwater archaeology and promote public awareness regarding the value and importance of Underwater Cultural Heritage.

“Several key policy elements in the bill result from public feedback given during a review of the Historic Shipwrecks Act 1976 and Australia's consideration of ratification of the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage.”

• the operation of the Act generally;
• the extent to which the intent of the Act is being achieved;
• which waters the Act should cover;
• the appropriateness of the current arrangements whereby the States and Territories undertake some delegated legislative responsibilities on behalf of the Australian Government;
• whether human remains should be specifically identified and managed differently to other relics;
• whether the Act should be extended to cover other underwater archaeological sites and relics; and
• other legislative mechanisms that could enable Australia to ratify the UNESCO 2001 Convention for the Protection of the Underwater Cultural Heritage.

• clarify the roles and responsibilities the Commonwealth, States and the Northern Territory jurisdictions in relation to the management of Australia’s underwater cultural heritage; and
• meet international best practice management of Australia’s underwater cultural heritage as outlined in the Rules in the Annex to the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage.

1. to provide for the identification, protection and conservation of Australia’s underwater cultural heritage; and
2. to enable the cooperative implementation of national and international maritime heritage responsibilities; and
3. to promote public awareness, understanding, appreciation and appropriate use of Australia’s underwater cultural heritage.

“protect Australia’s unique historic shipwrecks, sunken aircraft and other underwater cultural heritage, along with their fragile natural environments, both in Australian waters and in waters outside Australian jurisdiction. This valuable and irreplaceable cultural resource belongs to all Australians and is protected for their current enjoyment and education as well as providing a cultural inheritance to future generations.

The protective scope of the Bill has been expanded to include other types of underwater cultural heritage, including submerged aircraft and human remains. The Bill also helps protect Australia’s important overseas heritage such as sunken military vessels and aircraft and will now provide protection for associated human remains. The new scope and modernisation aligns with international best practice and the requirements of the Convention.

The new measures will protect an important national cultural resource that cannot be recovered, renewed or researched once destroyed. The Bill will re-establish Australia’s protection and management of underwater cultural heritage as the international benchmark while at the same time reducing regulatory burden and providing clarity to the regulated community. The Bill also reduces the administrative burden on government through improvements to statutory processes and modernisation of the compliance and enforcement regimes.

The Bill will allow for collaborative protection and management of underwater cultural heritage by the Commonwealth, State and Territory Governments. This is a continuation of the system established under the Historic Shipwrecks Act.”