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Contents (1974 - 80)
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National Parks and Wildlife Act 1974 No 80
Current version for 26 October 2018 to date (accessed 23 November 2019 at 13:45)
Part 6 Division 1
Division 1 General
83   Certain Aboriginal objects to be Crown property
(1)  Subject to this section:
(a)  an Aboriginal object that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of section 33D of the Act of 1967, and
(b)  an Aboriginal object that is abandoned on or after that day by a person other than the Crown,
shall be, and shall be deemed always to have been, the property of the Crown.
(2)  Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land.
(3)  No compensation is payable in respect of the vesting of an Aboriginal object by this section or section 33D of the Act of 1967.
84   Aboriginal places
The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act.
85   Chief Executive’s responsibilities as to Aboriginal objects and Aboriginal places
(1)  The Chief Executive shall be the authority for the protection of Aboriginal objects and Aboriginal places in New South Wales.
(2)  In particular, the Chief Executive shall be responsible:
(a)  for the proper care, preservation and protection of any Aboriginal object or Aboriginal place on any land reserved under this Act, and
(b)  subject to Division 2, for the proper restoration of any such land that has been disturbed or excavated in accordance with an Aboriginal heritage impact permit.
85A   Transfer of Aboriginal objects
(1)  The Chief Executive may, despite any other provision of this Act, dispose of Aboriginal objects that are the property of the Crown:
(a)  by returning the Aboriginal objects to an Aboriginal owner or Aboriginal owners entitled to, and willing to accept possession, custody or control of the Aboriginal objects in accordance with Aboriginal tradition, or
(b)  by otherwise dealing with the Aboriginal objects in accordance with any reasonable directions of an Aboriginal owner or Aboriginal owners referred to in paragraph (a), or
(c)  if there is or are no such Aboriginal owner or Aboriginal owners—by transferring the Aboriginal objects to a person, or a person of a class, prescribed by the regulations for safekeeping.
(2)  Nothing in this section is taken to limit the right of an Aboriginal owner or Aboriginal owners accepting possession, custody or control of any Aboriginal object pursuant to this section to deal with the Aboriginal object in accordance with Aboriginal tradition.
(3)  The regulations may make provision as to the manner in which any dispute concerning the entitlement of an Aboriginal owner or Aboriginal owners to possession, custody or control of Aboriginal objects for the purposes of this section is to be resolved.
86   Harming or desecrating Aboriginal objects and Aboriginal places
(1)  A person must not harm or desecrate an object that the person knows is an Aboriginal object.
Maximum penalty:
(a)  in the case of an individual—2,500 penalty units or imprisonment for 1 year, or both, or (in circumstances of aggravation) 5,000 penalty units or imprisonment for 2 years, or both, or
(b)  in the case of a corporation—10,000 penalty units.
(2)  A person must not harm an Aboriginal object.
Maximum penalty:
(a)  in the case of an individual—500 penalty units or (in circumstances of aggravation) 1,000 penalty units, or
(b)  in the case of a corporation—2,000 penalty units.
(3)  For the purposes of this section, circumstances of aggravation are:
(a)  that the offence was committed in the course of carrying out a commercial activity, or
(b)  that the offence was the second or subsequent occasion on which the offender was convicted of an offence under this section.
This subsection does not apply unless the circumstances of aggravation were identified in the court attendance notice or summons for the offence.
(4)  A person must not harm or desecrate an Aboriginal place.
Maximum penalty:
(a)  in the case of an individual—5,000 penalty units or imprisonment for 2 years, or both, or
(b)  in the case of a corporation—10,000 penalty units.
(5)  The offences under subsections (2) and (4) are offences of strict liability and the defence of honest and reasonable mistake of fact applies.
(6)  Subsections (1) and (2) do not apply with respect to an Aboriginal object that is dealt with in accordance with section 85A.
(7)  A single prosecution for an offence under subsection (1) or (2) may relate to a single Aboriginal object or a group of Aboriginal objects.
(8)  If, in proceedings for an offence under subsection (1), the court is satisfied that, at the time the accused harmed the Aboriginal object concerned, the accused did not know that the object was an Aboriginal object, the court may find an offence proved under subsection (2).
Note.
 An offence against subsection (1), (2) or (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 175B.
87   Defences
(1)  It is a defence to a prosecution for an offence under section 86 (1), (2) or (4) if the defendant shows that:
(a)  the harm or desecration concerned was authorised by an Aboriginal heritage impact permit, and
(b)  the conditions to which that Aboriginal heritage impact permit was subject were not contravened.
(2)  It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the defendant exercised due diligence to determine whether the act or omission constituting the alleged offence would harm an Aboriginal object and reasonably determined that no Aboriginal object would be harmed.
(3)  The regulations may provide that compliance with requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, is taken for the purposes of subsection (2) to constitute due diligence in determining whether the act or omission constituting the alleged offence would harm an Aboriginal object.
(4)  It is a defence to a prosecution for an offence under section 86 (2) if the defendant shows that the act or omission constituting the alleged offence is prescribed by the regulations as a low impact act or omission.
(5)  The Minister is not to recommend the making of a regulation under subsection (3), unless:
(a)  the Chief Executive has, under subsection (6), set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, and
(b)  the Minister:
(i)  is satisfied that the requirements specified in the recommended regulation, or in the code of practice adopted or prescribed by the recommended regulation, meet those minimum standards, and
(ii)  has consulted with the Aboriginal Cultural Heritage Advisory Committee.
(6)  The Chief Executive may, for the purposes of subsection (5) set minimum standards for requirements specified in the regulations, or in a code of practice adopted or prescribed by the regulations, under subsection (3). The Chief Executive is to publish any such minimum standards in the Gazette.
(7)  The Minister is not to recommend the making of a regulation under subsection (4) unless the Minister has consulted with the Aboriginal Cultural Heritage Advisory Committee.
87A   Exemptions for certain activities
Section 86 (1)–(4) do not apply in relation to the following:
(a)  work for the conservation or protection of an Aboriginal object or place that is carried out by an officer of the Service or a person under the direction of such an officer,
(b)  any emergency fire fighting act or bush fire hazard reduction work within the meaning of the Rural Fires Act 1997 that is authorised or required to be carried out under that Act,
(c)  any thing authorised by or under the State Emergency and Rescue Management Act 1989 in relation to an emergency (within the meaning of that Act) and that was reasonably necessary in order to avoid an actual or imminent threat to life or property,
(d)  any thing specifically required or permitted under the express terms of a conservation agreement entered into under Division 12 of Part 4 of this Act (being an agreement that was entered into or modified after the commencement of this section).
87B   Exemption for traditional Aboriginal cultural activities
(1)  The object of this section is to exempt Aboriginal people from the provisions of section 86 that prohibit the harming of an Aboriginal object or place.
(2)  Aboriginal people are exempt from the provisions of section 86 (1), (2) and (4) to the extent to which those provisions would, but for this section, prohibit Aboriginal people from carrying out traditional cultural activities (except commercial activities).
(3)  This section applies to and in respect of any dependants (whether Aboriginal or not) of Aboriginal people in the same way as it applies to and in respect of Aboriginal people.
88   Australian Museum Trust to have custody of certain Aboriginal objects
(1)  Nothing in Division 2 shall be construed as authorising the Chief Executive to permit an Aboriginal object to be removed from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to the custody or control of a person other than the Australian Museum Trust, except where:
(a)  the Aboriginal object remains in the custody or under the control of the Chief Executive, or
(b)  the Aboriginal object is being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park.
(2)  An Aboriginal object that is the property of the Crown, other than an Aboriginal object:
(a)  in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,
(b)  being moved from a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park to any or any other national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park,
(c)  in the custody or under the control of the Chief Executive, or
(d)  acquired by the Minister or the Chief Executive pursuant to section 89 or by the Minister pursuant to Part 11,
shall be deemed not to be in the possession of the Crown unless it is in the custody or under the control of the Australian Museum Trust.
(3)  The Chief Executive may arrange with the Australian Museum Trust for the deposit or exhibition of an Aboriginal object in a building or structure in a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area, state conservation area or regional park and, where an Aboriginal object is so deposited or exhibited, section 86 does not apply to the Australian Museum Trust in relation to that Aboriginal object.
(4)  Nothing in this Act shall be construed as affecting the powers, authorities, duties or functions conferred or imposed on the Australian Museum Trust by the Australian Museum Trust Act 1975.
89   Preservation or exhibition of certain Aboriginal objects
(1)  Subject to this section, the Minister or the Chief Executive may, by agreement with a person having the ownership or possession of:
(a)  an Aboriginal object that is not the property of the Crown, or
(b)  an Aboriginal place,
acquire the Aboriginal object or take such other action as the Minister or the Chief Executive thinks is practicable for the preservation or exhibition of the Aboriginal object or Aboriginal place.
(2)  An Aboriginal object acquired under this section shall be the property of the Crown.
(3)  An Aboriginal object that is real property shall not be acquired under this section, but nothing in this section affects anything contained in Part 11.
(4)  Any Aboriginal object acquired by the Minister or the Chief Executive prior to the commencement day shall be deemed to have been acquired under this section.
89A   Notification of sites of Aboriginal objects
A person who is aware of the location of an Aboriginal object that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Chief Executive thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Chief Executive is aware of the location of that Aboriginal object.
Maximum penalty:
(a)  in the case of an individual—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or
(b)  in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day the offence continues.