An Act relating to the Protection of Certain Shipwrecks and
Relics of Historic Significance
WHEREAS, by an Agreement between the
Netherlands and Australia Concerning Old Dutch Shipwrecks that was signed on 6 November
1972 (being the agreement a copy of the text of which is set out in Schedule 1
to this Act), the Netherlands, as successor to the property and assets of the
Dutch “Vereenigde Oostindische Compagnie”, transferred to Australia all its
right, title and interest in and to wrecked vessels of the Dutch “Vereenigde
Oostindische Compagnie” lying on or off the coast of the State of Western
Australia and in and to any articles thereof and Australia accepted that right,
title and interest:
AND WHEREAS it is
desirable that the Commonwealth and the States, in co‑operation, should protect
those wrecked vessels and articles, and the remains of, and any articles
associated with, other ships of historic significance, being remains or
articles that are situated in, or have been removed from, Australian waters or
waters above the continental shelf of Australia:
BE IT THEREFORE
ENACTED by the Queen, and the Senate and House of Representatives of the
Commonwealth of Australia, as follows:
Part I—Preliminary
1
Short title [see Note
1]
This Act may be cited as the Historic
Shipwrecks Act 1976.
2
Commencement and application of Act [see Note 1]
(1) This Act shall come into operation on the
day on which it receives the Royal Assent but shall not apply in relation to
waters (including waters above the continental shelf) adjacent to the coast of
a State until a Proclamation has been made declaring that this Act applies in
relation to waters adjacent to the coast of that State.
(2) A Proclamation under subsection (1)
may be expressed to relate only to a specified part of the waters adjacent to
the coast of a State and, where a Proclamation so expressed is made, this Act
shall commence to apply in relation to that part of those waters only.
(3) Proclamations under subsection (1)
in relation to waters adjacent to the coasts of New South Wales, Queensland and
Western Australia having been made, before the commencement of this subsection,
at the request or with the consent of the Governments of those States
respectively, no further Proclamation under that subsection shall be made
except at the request or with the consent of the Government of the State
concerned.
(4) If, after this Act has commenced to apply
in relation to any waters adjacent to the coast of a State, the Government of
the State notifies the Government of the Commonwealth that it desires that this
Act shall cease to apply in relation to those waters or a specified part of
those waters, the Governor‑General shall, by Proclamation, declare that this
Act shall, on a date specified in the Proclamation, cease to apply accordingly
and, upon that date, this Act shall cease to apply in relation to the waters
specified in the Proclamation or to or in relation to remains of ships, and
articles, that are in those waters or have been removed from those waters.
(5) A Government of a State may, in a
notification to the Government of the Commonwealth under subsection (4),
request that this Act shall continue to be applicable to and in relation to
specified articles, or articles of a specified class, removed from the waters
referred to in the notification and, in that event, the Proclamation under that
subsection shall provide, and have effect, accordingly.
(6) Nothing contained in, or done under, subsection (4)
affects the application of this Act to or in relation to a Dutch shipwreck or
Dutch relic, and a Proclamation under that subsection in relation to waters
adjacent to Western Australia shall declare that the Proclamation does not
affect the application of this Act to or in relation to any wrecked vessel or
article that is a Dutch shipwreck or Dutch relic within the meaning of this
Act.
(7) Where the Governor‑General is satisfied
that arrangements made, apart from this Act, with respect to Dutch shipwrecks
or Dutch relics make it appropriate to do so, the Governor‑General may, by
Proclamation, declare that this Act shall, on a date specified in the
Proclamation, cease to apply to and in relation to all Dutch shipwrecks and
Dutch relics, or such Dutch shipwrecks and Dutch relics as are in, or have been
removed from, a specified part of the waters adjacent to Western Australia.
(8) A Proclamation under subsection (7)
may provide that this Act shall continue to be applicable to and in relation to
specified Dutch relics, or Dutch relics of a specified class, removed from the
waters to which the Proclamation relates and in that event this Act shall have
effect accordingly.
(9) Subsections (4) and (5) have effect
as if the Northern Territory were a State.
(9A) Nothing contained in, or done under, subsection (4)
affects the application of this Act to or in relation to a Papua New Guinea
shipwreck or a Papua New Guinea relic and a Proclamation under that subsection
in relation to waters adjacent to Queensland shall declare that the
Proclamation does not affect the application of this Act to or in relation to
any wrecked vessel or article that is a Papua New Guinea shipwreck or Papua New
Guinea relic within the meaning of this Act.
(9B) Where the Governor‑General is satisfied
that arrangements made, apart from this Act, with respect to a Papua New Guinea
shipwreck or Papua New Guinea shipwrecks or a Papua New Guinea relic or Papua
New Guinea relics make it appropriate to do so, the Governor‑General may, by
Proclamation, declare that this Act shall, on a date specified in the
Proclamation, cease to apply to and in relation to that Papua New Guinea
shipwreck or those Papua New Guinea shipwrecks, or that Papua New Guinea relic
or those Papua New Guinea relics.
(10) Where a Proclamation is expressed to be
made in accordance with a specified subsection of this section, it shall be
conclusively presumed that any request or consent of, or notification by, the
Government of a State, or any other condition precedent, that is necessary or
applicable under that subsection has been duly made, given or complied with.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
Australia includes the external
Territories.
Australia‑Netherlands Agreement means the
Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks
that was signed on 6 November 1972, being the agreement a copy of the text
of which is set out in Schedule 1.
Australian waters means the territorial sea
of Australia and waters of the sea (not being State waters) on the landward
side of the territorial sea of Australia.
Dutch relic means an article mentioned in
Article 1 or 2 of the Australia‑Netherlands Agreement.
Dutch shipwreck means:
(a) a wrecked vessel mentioned in
Schedule 2; or
(b) any other wrecked vessel mentioned
in Article 1 of the Australia‑Netherlands Agreement (including any such vessel
that is no longer lying on or off the coast of the State of Western Australia
as mentioned in that Article).
historic relic means:
(aa) an article in respect of which a
declaration under subsection 4A(6) or (7) is applicable;
(a) an article in respect of which a
notice in force under subsection 5(2) (including that subsection as having
effect by virtue of subsection 5(3)) is applicable;
(b) a Dutch relic;
(ba) a Papua New Guinea relic; or
(c) an article in respect of which a
notice in force under subsection 6(2) (including that subsection as having
effect by virtue of subsection 6(3)) is applicable.
historic shipwreck means:
(aa) the remains of a ship in respect
of which a declaration under subsection 4A(1) or (2) is applicable;
(a) the remains of a ship in respect
of which a notice in force under subsection 5(1) (including that subsection as
having effect by virtue of subsection 5(3)) is applicable;
(b) a Dutch shipwreck;
(ba) a Papua New Guinea shipwreck; or
(c) an article or articles in respect
of which a notice in force under subsection 6(1) (including that subsection as
having effect by virtue of subsection 6(3)) is applicable.
inspector means a person appointed as an
inspector under section 22 or a member of the Commonwealth Police Force or
of the Police Force of a State or Territory.
offence against this Act includes:
(a) an offence against the
regulations;
(b) an offence against this Act that
is taken to have been committed because of section 11.2 or 11.2A of the Criminal
Code; and
(c) an offence against section 11.1
or 11.4 of the Criminal Code in relation to this Act.
Papua New Guinea relic means an
article in respect of which a notice is in force under subsection 5(6).
Papua New Guinea shipwreck means
the remains of a ship in respect of which a notice is in force under subsection
5(5).
protected zone means an area in respect of
which a notice is in force under subsection 7(1) and any area by which the
first‑mentioned area is extended by a notice that is in force under subsection
7(2) and includes the airspace above such an area and any waters, sea‑bed and
subsoil included in such an area by virtue of subsection 7(3).
Register means the Register of Historic Shipwrecks
kept under section 12.
relevant agreement means an agreement entered
into between Australia and another country or countries in relation to the
remains of a ship or ships or in relation to articles associated with a ship or
ships, being remains or articles declared in the agreement to be of historic
significance.
sea includes any waters within the ebb and
flow of the tide.
ship includes any vessel used in navigation
by water.
State waters means waters of the sea that are
within the limits of a State.
(2) A reference in this Act to the remains of
a ship, to part of the remains of a ship, to an article or articles, or to part
of an article, being situated in waters, includes a reference to the remains of
a ship, to part of the remains of a ship, to an article or articles, or to part
of an article, as the case may be:
(a) being situated in, or forming part
of, the seabed or the subsoil of the seabed, beneath those waters; or
(b) being situated on, or forming part
of, a reef in those waters.
(2A) A reference in this Act to the remains of a
ship, to part of the remains of a ship, to an article or articles or to part of
an article, having been removed from waters includes a reference to the remains
of a ship, to part of the remains of a ship, to an article or articles, or to
part of an article, as the case may be:
(a) having been washed away from those
waters;
(b) having been removed, or washed
away, from the seabed, or the subsoil of the seabed, beneath those waters; or
(c) having been removed, or washed
away, from a reef in those waters.
(3) A thing shall not be taken not to be an
article for the purposes of this Act by reason that it is attached to the
remains of a ship, to a reef or to, or to the subsoil of, the sea‑bed.
(4) A reference in this Act to an article
associated with a ship shall be construed as a reference to an article that
appears to have formed part of, to have been installed or carried on, or to
have been constructed or used by a person associated with, a ship.
(5) For the purpose of this Act, and of any
Proclamation under this Act (whether made before or after the commencement of
this subsection), the waters adjacent to the coast of a State or of the
Northern Territory shall be deemed to comprise so much of the waters within the
area the boundary of which was described under the heading referring to that
State or Territory in Schedule 2 to the repealed Petroleum (Submerged
Lands) Act 1967 as in force immediately after the commencement of Part II
of the Petroleum (Submerged Lands—Miscellaneous Amendments) Act 1981 as
are within the outer limit of the continental shelf of Australia.
3A
Wrecks etc. partly in Australian waters and partly in State waters
(1) Where:
(a) part of a ship is situated in, or
has been removed from, Australian waters;
(b) another part of that ship is
situated in, or has been removed from, waters of the sea that are within the
limits of a State; and
(c) a Minister of the Crown of the
State has informed the Minister, in writing, that the Government of the State
has no objection to the making of a declaration under this section in respect
of the part referred to in paragraph (b);
the Minister may declare, in writing, that the part
referred to in paragraph (b) shall, for the purposes of this Act (other
than this section and sections 7 and 13) be deemed to be a part that is
situated in, or has been removed from, Australian waters, as the case requires,
and, where such a declaration is made, that declaration has effect accordingly.
3B
Application and extension of Act
Subject to section 2, this Act
applies both within and outside Australia and extends to every external
Territory.
4 Act
to bind Crown
This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island, but nothing in this Act renders the Crown liable to be prosecuted for an
offence.
4AA
Application of the Criminal Code
Chapter 2 of the Criminal
Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part II—Protection of historic shipwrecks and relics
4A
Shipwrecks and relics associated with State or Territory may be declared to be
historic
(1) If a Minister of a State informs the
Minister, in writing, that the Government of the State recommends that a
declaration be made under this subsection in relation to the State, the
Minister may, by notice in writing published in the Gazette, declare all
remains of ships (whether or not the existence and location of the remains are
known) that are:
(a) situated in Australian waters, or
waters above the continental shelf of Australia, adjacent to the coast of the
State; and
(b) at least 75 years old;
to be historic shipwrecks, and, where such a declaration is
made, the declaration extends to remains (including remains that come into
existence, because of a shipwreck or otherwise, after the making of the
declaration) that, after the making of the declaration, become remains to which
paragraphs (a) and (b) apply.
(2) The Minister may, by notice in writing
published in the Gazette, declare all remains of ships (whether or not
the existence and location of the remains are known) that are:
(a) situated in Australian waters, or
waters above the continental shelf of Australia, adjacent to the coast of a
Territory; and
(b) at least 75 years old;
to be historic shipwrecks, and, where such a declaration
is made, the declaration extends to remains (including remains that come into
existence, because of a shipwreck or otherwise, after the making of the
declaration) that, after the making of the declaration, become remains to which
paragraphs (a) and (b) apply.
(3) Subject to subsection (10) where:
(a) the whole of the remains of a ship
have been removed from waters; and
(b) if
the remains had not been so removed, a declaration under subsection (1) or
(2) would have applied in relation to those remains;
the declaration applies in relation to those remains.
(4) Subject to subsection (10), where:
(a) part of the remains of a ship has
been removed from waters; and
(b) a declaration made under subsection (1)
or (2) applies in relation to the part of the remains remaining in those
waters;
the declaration applies also in relation to the part of
the remains that has been removed from those waters.
(5) Subject to subsection (10), where:
(a) a declaration under subsection (1)
or (2) applies in relation to the remains of a ship situated in waters; and
(b) part of the remains of the ship
is, or the whole of the remains of the ship are, removed from those waters;
the declaration continues to apply in relation to the
part, or to the whole, of those remains.
(6) If a Minister of a State informs the
Minister, in writing, that the Government of the State recommends that a declaration
be made under this subsection in relation to the State, the Minister may, by
notice in writing published in the Gazette, declare every article
(whether or not the existence and location of the article is known) that:
(a) was associated with a ship;
(b) is situated in Australian waters,
or waters above the continental shelf of Australia, adjacent to the coast of
the State; and
(c) either:
(i) was associated with
the remains of a ship that are at least 75 years old; or
(ii) entered waters referred
to in paragraph (b) at least 75 years ago;
to be a historic relic, and, where such a declaration is
made, the declaration extends to every article that, after making of the
declaration, becomes (whether by reason of a shipwreck or otherwise) an article
to which paragraphs (a), (b) and (c) apply.
(7) The Minister may, by notice in writing
published in the Gazette, declare every article (whether or not the
existence and location of the article is known) that:
(a) was associated with a ship;
(b) is situated in Australian waters,
or waters above the continental shelf of Australia, adjacent to the coast of a
Territory; and
(c) either:
(i) was associated with
the remains of a ship that is at least 75 years old; or
(ii) entered waters
referred to in paragraph (b) at least 75 years ago;
to be a historic relic, and, where such a declaration is
made, the declaration extends to every article that, after the making of the
declaration, becomes (whether by reason of a shipwreck or otherwise) an article
to which paragraphs (a), (b) and (c) apply.
(8) Subject to subsection (10), where:
(a) an article has been removed from
waters; and
(b) if the article had not been so
removed, a declaration under subsection (4) or (5) would have applied in
relation to that article;
the declaration applies in relation to that article.
(9) Subject to subsection (10), where:
(a) a declaration under subsection (6)
or (7) applies in relation to an article situated in waters; and
(b) that article is removed from those
waters;
the declaration continues to apply in relation to that
article.
(10) Where a declaration under this section
applies in relation to the remains of a ship or to an article, the Minister
may, by notice in writing, published in the Gazette, revoke that declaration
to the extent that it applies in relation to those remains, to a specified part
of those remains or to that article, as the case requires.
(11) In this section:
State includes the Northern Territory and Norfolk Island.
Territory does not include the Northern Territory or Norfolk Island.
(12) In this section:
(a) a reference to a Minister of a
State shall, except in relation to the Northern Territory or Norfolk Island, be
read as a reference to a Minister of the Crown of the State;
(b) a reference to a Minister of a
State shall, in relation to the Northern Territory, be read as a reference to a
person holding an office referred to in section 34 of the Northern
Territory (Self‑Government Act) 1978; and
(c) a reference to a Minister of a
State shall, in relation to Norfolk Island, be read as a reference to a Minister
of Norfolk Island.
5
Certain shipwrecks and relics may be declared to be historic
(1) Where the Minister is of the opinion that
the remains of a ship that are situated in Australian waters or in waters above
the continental shelf of Australia are of historic significance, the Minister
may, by notice published in the Gazette, declare those remains to be a
historic shipwreck.
(2) Where the Minister is of the opinion that
a particular article that was, or particular articles that were, associated
with a ship, or all articles that were associated with a particular ship, being
an article that is, or articles that are, situated in Australian waters or in
waters above the continental shelf of Australia, is or are of historic
significance, the Minister may, by notice published in the Gazette,
declare the article or articles to be a historic relic or historic relics.
(3) The Minister may make a declaration under
subsection (1) or (2) in relation to any part of the remains of a ship
that has, or in relation to any article or articles that has or have, been
removed from Australian waters or from waters above the continental shelf of
Australia in like manner as the Minister may make a declaration under that
subsection in relation to the remains of a ship, or in relation to an article
or articles, situated in those waters.
(4) Where:
(a) a declaration has been made under
this section in relation to the remains of a ship or an article that were or
was situated in any waters; and
(b) after the making of the
declaration any part of those remains or that article is removed from those
waters;
the declaration continues to apply, subject to any
amendment or revocation of the declaration, in relation to that part of those
remains or in relation to that article notwithstanding its removal from those
waters.
(5) Where the Minister is of the opinion that
the remains of a ship (not being a military vessel wrecked after the
commencement of this subsection) that are situated in Australian waters or in
waters above the continental shelf of Australia are of historic or special
significance to Papua New Guinea, the Minister may, by notice published in the Gazette,
declare those remains to be a Papua New Guinea shipwreck.
(6) Where the Minister is of the opinion that
a particular article that was, or particular articles that were, associated
with a ship (not being a military vessel wrecked after the commencement of this
subsection), or all articles that were associated with a particular ship (not
being a military vessel wrecked after the commencement of this subsection),
being an article that is, or articles that are, situated in Australian waters
or in waters above the continental shelf of Australia, is or are of historic or
special significance to Papua New Guinea, the Minister may, by notice published
in the Gazette, declare the article or articles to be a Papua New Guinea
relic or Papua New Guinea relics.
6
Provisional declaration that shipwrecks and relics are historic
(1) Where it appears to the Minister that an
article or articles appearing to be the remains of a ship that is or are
situated in Australian waters or in waters above the continental shelf of
Australia may be of historic significance, the Minister may, by notice
published in the Gazette, provisionally declare the article or articles
to be a historic shipwreck.
(2) Where it appears to the Minister that a
particular article that is, or particular articles that are, situated in
Australian waters or in waters above the continental shelf of Australia:
(a) may have been associated with a
ship; and
(b) may be of historic significance;
the Minister may, by notice published in the Gazette,
provisionally declare the article or articles to be a historic relic or
historic relics.
(3) The Minister may make a declaration under
subsection (1) or (2) in relation to any article that has, or articles
that have, been removed from Australian waters or from waters above the
continental shelf of Australia in like manner as the Minister may make a
declaration under that subsection in relation to an article or articles
situated in those waters.
(4) Where:
(a) a declaration has been made under
this section in relation to an article that was situated in any waters; and
(b) after the making of the
declaration that article is removed from those waters;
the declaration continues to apply in relation to that
article notwithstanding its removal from those waters.
(5) A notice under this section remains in
force, unless sooner revoked, until the expiration of 5 years from the date of
publication of the notice in the Gazette, but the revocation or
expiration of a notice under this section does not prevent the publication in
the Gazette of a further notice under this section in relation to an
article or articles to which the revoked or expired notice applied.
7
Protected zones
(1) Subject to subsection (1A), the
Minister may, by notice published in the Gazette, declare an area (not
exceeding 200 hectares) consisting of sea or partly of sea and partly of land
within which a historic shipwreck is, or a historic relic is or historic relics
are, situated to be a protected zone.
(1A) A declaration under subsection (1)
shall not apply to an area consisting of sea or land within the limits of a
State unless there is situated within the area a historic shipwreck or a
historic relic to which a declaration under section 3A applies.
(2) Where the Minister is of the opinion that
it is necessary to do so for the purposes of protecting a historic shipwreck, a
historic relic or historic relics, the Minister may, by notice published in the
Gazette, extend an area comprising a protected zone under subsection (1)
to include a further area consisting of sea or partly of sea and partly of land
(being sea or land within the limits of a State) but so that the total area
does not exceed 200 hectares and, where an area is so extended to include a
further area, the protected zone includes that further area.
(3) Where a notice declaring an area to be,
or to be included in, a protected zone is in force under subsection (1) or
(2), the protected zone shall be taken to include the airspace above that area
and, to the extent to which that area consists of the surface of any sea, to
include the waters beneath that area, the sea‑bed beneath those waters and the
subsoil of that sea‑bed.
(3A) Where a declaration under section 4A
is revoked in relation to the remains of a ship or to an article, any notice
under this section in relation to the remains or to the article ceases to be in
force, but this subsection does not prevent the publication in the Gazette
of a further notice under this section in relation to the remains or to the
article if a notice is published in the Gazette under section 5 or
6 in relation to the remains or to the article.
(4) Where a notice under section 5 or 6
in relation to the remains of a ship or in relation to an article or articles
is revoked or otherwise ceases to be in force, any notice under this section in
relation to the remains or in relation to the article or articles ceases to be
in force but this subsection does not prevent the publication in the Gazette
of a further notice under this section in relation to the remains or in
relation to the article or articles if a further notice is published in the Gazette
under section 5 or 6 in relation to the remains or in relation to the
article or articles.
8
Further publication of notices.
Where a notice under section 4A, 5,
6 or 7 is published in the Gazette, the Minister may cause a copy of the
notice to be published in such newspapers, periodicals or other publications as
the Minister thinks appropriate.
9
Notice of location of historic shipwrecks and relics
(1) Where:
(a) a person has possession, custody
or control of an article; and
(b) a notice applying in respect of
the article is published in the Gazette under section 4A, 5 or 6;
the person shall, within 30 days after the date of
publication of the notice in the Gazette, give the prescribed notice to
the Minister in relation to the article.
(1A) Where:
(a) a person has possession, custody
or control of an article; and
(b) the article becomes an article to
which a notice under section 4A applies otherwise than on the publication
of the notice;
the person shall, within 30 days after the day on which
the article became an article to which the notice applies, give the prescribed
notice to the Minister in relation to the article.
(2) Where an article in respect of which a
notice published in the Gazette under section 4A, 5 or 6 applies
comes into the possession, custody or control of a person, the person shall,
within 30 days after the day on which the article comes into his or her
possession, custody or control, give the prescribed notice to the Minister in
relation to the article.
(3) Where, at the commencement of this Act, a
person has possession, custody or control of an article that is, or is a part
of, a Dutch shipwreck or is a Dutch relic, the person shall, within 30 days
after the commencement of this Act, give the prescribed notice to the Minister
in relation to the article.
(4) Where, after the commencement of this
Act, an article that is, or is a part of, a Dutch shipwreck or is a Dutch relic
comes into the possession, custody or control of a person, the person shall,
within 30 days after the day on which the article comes into his or her
possession, custody or control, give the prescribed notice to the Minister in
relation to the article.
(5) It is a defence to a prosecution of a
person for an offence against a provision of this section in relation to an
article if the person proves:
(a) in the case of an offence against subsection (1),
(1A) or (2) in relation to an article in respect of which a notice was
published in the Gazette under section 4A, 5 or 6—that the person
did not know, and had no reasonable grounds for believing, that the article was
an article to which the notice related; or
(b) in the case of an offence against subsection (3)
or (4)—that the person did not know, and had no reasonable grounds for
believing, that the article was a Dutch relic or a part of a Dutch shipwreck.
(6) For the purposes of this section, the
prescribed notice in relation to an article means a notice in writing
describing the article and stating where the article is situated.
Penalty:
(a) if the offender is a natural
person—$2,000; or
(b) if the offender is a body
corporate—$10,000.
10
Power of Minister to ascertain location of historic shipwrecks and relics
(1) Where it appears to the Minister that:
(a) a person may have, or may have
had, possession, custody or control of an article; and
(b) the article is or may be, or is or
may be a part of, a historic shipwreck or is or may be a historic relic;
the Minister may, by notice in writing to the person,
require the person, within the time specified in the notice:
(c) to inform the Minister whether the
person has, or has had, possession, custody or control of the article;
(d) if the person has ceased to have
possession, custody or control of the article, to give the Minister particulars
of the circumstances in which the person ceased to have possession, custody or
control of the article; and
(e) if the person has transferred
possession, custody or control of the article to another person, to give the
Minister the name and address of the person to whom possession, custody or
control of the article was transferred.
(2) A person is guilty of an offence if the
person:
(a) is given a notice by the Minister
under subsection (1); and
(b) refuses or fails to comply with
the notice to the extent that the person is capable of complying with it.
Penalty: 20 penalty units.
(3) A person is not excused from furnishing
information in pursuance of this section on the ground that the information may
tend to incriminate the person but evidence of the furnishing of the
information is not admissible in evidence against the person except in
proceedings for an offence against this section or an offence against section 137.1
or 137.2 of the Criminal Code that relates to this section.
11
Power of Minister to give directions in relation to custody etc. of historic
shipwrecks and relics
(1) Where a person has possession, custody or
control of an article, being, or being a part of, a historic shipwreck or being
a historic relic, the Minister may, for the purpose of:
(a) the preservation of the article;
(b) the placement of the article with
a collection of articles that has been, or is to be, established; or
(c) the exhibition of, or the
provision of access to, the article, whether or not the article forms part of a
collection of articles;
by notice in writing, require the person to take such
action in relation to the article as is specified in the notice.
(2) The action that a person may be required
to take in relation to an article by a notice under subsection (1)
includes but is not limited to:
(a) keeping the article in a
particular manner or place;
(b) removing the article to a
particular place within a particular time;
(c) doing a particular act in relation
to the article within a particular time, being an act designed to assist in the
preservation of the article; and
(d) delivering the article into the
custody of a particular person within a particular time.
(3) Where the Minister gives a notice to a
person under subsection (1) requiring the person to take action in
relation to an article other than action referred to in paragraph (2)(d),
the Minister shall in the notice inform the person that the person may, in lieu
of taking that action, deliver the article within a specified time into the
custody of a person specified in the notice.
(4) A person to whom a notice is given by the
Minister under subsection (1) shall comply with the notice.
Penalty:
(a) if the offender is a natural
person—$5,000 or imprisonment for a period of 2 years, or both; or
(b) if the offender is a body
corporate—$25,000.
(5) A civil action does not lie against a
person in respect of any action taken by the person in pursuance of a notice
given to the person by the Minister under subsection (1).
12 Register
of Historic Shipwrecks
(1) The Minister shall cause to be kept a
register to be known as the Register of Historic Shipwrecks.
(2) The Minister shall cause to be entered in
the Register particulars of:
(a) known remains of ships, and known
articles, in relation to which a declaration under section 4A applies;
(b) notices in force under section 5,
6 or 7; and
(c) known Dutch shipwrecks and Dutch
relics.
(3) A person may inspect the Register and, on
payment of the prescribed fee, is entitled to be furnished with a copy of, or
of any part of, the Register.
13
Prohibition of certain action in relation to historic shipwrecks and relics
(1) A person contravenes this section if:
(a) the person engages in conduct; and
(b) the conduct:
(i) destroys or causes
damage to a historic shipwreck or historic relic; or
(ii) causes interference
with a historic shipwreck or historic relic; or
(iii) causes the disposal of
a historic shipwreck or historic relic; or
(iv) causes a historic
shipwreck or historic relic to be removed from Australia (including State
waters), from Australian waters or from waters above the continental shelf of Australia.
(1A) Subsection (1) does not apply if the
person engages in the conduct in accordance with a permit.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal
Code.
(1B) In subsections (1) and (1A):
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(2) A reference in subsection (1) to the
removal of a historic shipwreck or a historic relic from waters includes a
reference to the removal of a historic shipwreck or a historic relic from the
sea‑bed, or from the subsoil of the sea‑bed, beneath those waters or from a
reef in those waters.
(3) A person who contravenes this section is
guilty of an offence and is punishable, on conviction:
(a) if the offender is a natural
person—by a fine not exceeding $10,000 or imprisonment for a period not
exceeding 5 years, or both; or
(b) if the offender is a body
corporate—by a fine not exceeding $50,000.
(4) In this section, historic shipwreck
includes a part of a historic shipwreck.
14
Regulations may prohibit certain activities in protected zone
(1) The regulations may make provision:
(a) for and in relation to prohibiting
or restricting:
(i) the bringing into a
protected zone of equipment constructed or adapted for the purpose of diving,
salvage or recovery operations, or of any explosives, instruments or tools the
use of which would be likely to damage or interfere with a historic shipwreck
or a historic relic situated within that protected zone;
(ii) the use within a
protected zone of any such equipment, explosives, instruments or tools;
(iii) causing a ship
carrying any such equipment, explosives, instruments or tools to enter, or
remain within, a protected zone;
(iv) trawling, or diving or
other underwater activity, within a protected zone; or
(v) the mooring or use of
ships within a protected zone; and
(b) prescribing penalties, not
exceeding a fine of $1,000 or imprisonment for 1 year, or both, for any
contravention of a provision of any regulations made for the purposes of paragraph (a).
(2) The provision that may be made by
regulations made for the purposes of this section for or in relation to
restricting the doing of an act includes a provision prohibiting the doing of
that act except in accordance with a permit.
(3) Regulations made for the purposes of paragraph (1)(a)
may be of general application or may make different provision in relation to
different protected zones.
(4) In this section, ship
includes a hovercraft and any similar craft.
15
Permits for exploration or recovery of shipwrecks and relics
(1) The Minister may, in his or her
discretion, upon application by a person, grant a permit to that person
authorizing that person and any other persons named or described in the permit
to do an act or thing specified in the permit the doing of which would
otherwise be prohibited by section 13 or by regulations made for the
purposes of section 14.
(2) The Minister may, when granting a permit
or at any time while a permit is in force, impose conditions in respect of the
permit and may at any time revoke or vary any conditions so imposed.
(3) The conditions
that may be imposed under subsection (2) in respect of a permit
authorizing the doing of an act or thing include but are not limited to:
(a) a condition requiring the act or
thing to be done in a specified manner;
(b) a condition requiring the act or
thing to be done only in accordance with the directions of a person named or
described in the permit as a person empowered to give such directions; and
(c) a condition requiring any articles
obtained by the doing of an act that is authorized by the permit to be done to
be held in such custody or dealt with in such manner as is specified in the
permit or as is specified in directions given by a person named or described in
the permit as a person empowered to give such directions.
(4) A condition imposed in respect of a
permit (other than a condition contained in a permit) or a revocation or
variation of a condition so imposed takes effect when notice of the condition
or of the revocation or variation is served on the person to whom the permit
was granted.
(5) A person is guilty of an offence if:
(a) a permit has been granted to the
person or is otherwise applicable to the person; and
(b) the person engages in conduct; and
(c) the conduct contravenes a
condition imposed in respect of the permit.
Penalty: $2,000 or imprisonment for 2 years, or both.
(5A) In subsection (5):
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(6) The Minister may, at any time, by notice
in writing to the person to whom a permit has been granted:
(a) revoke the permit;
(b) suspend the permit; or
(c) cancel the suspension of the
permit.
(7) A suspension of a permit may be of
indefinite duration or for a specified period.
16
Defences
It is a defence to a prosecution of a
person for an offence against section 13, for an offence against a
regulation made for the purposes of section 14, or for an offence against
subsection 15(5), if the act that constituted the offence was done for the
purpose of:
(a) saving human life;
(b) securing the safety of a ship
(including a hovercraft or any similar craft) where the ship was endangered by
stress of weather or by navigational hazards; or
(c) dealing with an emergency
involving a serious threat to the environment;
or was done with any other reasonable excuse.
17
Discovery of shipwrecks and relics to be notified
(1) A person who finds, in a fixed position
in Australian waters or waters above the continental shelf of Australia, the
remains of a ship or of a part of a ship, or an article associated with a ship,
shall, as soon as practicable, give to the Minister a notice setting out a
description of the remains or of the article and a description of the place
where the remains are, or the article is, situated, being a description of that
place that is sufficient to enable the remains or article to be located.
(2) It is a defence to a prosecution of a
person for an offence against subsection (1) if the person proves, or
proves that he or she had reasonable grounds for believing, that a notice
setting out a description of the place where the remains are or the article is
situated, being a description that is sufficient to enable the remains or
article to be located, was given to the Minister by another person before it
was practicable for the first‑mentioned person to give such a notice.
Penalty:
(a) if the offender is a natural
person—$5,000; or
(b) if the offender is a body
corporate—$25,000.
18
Rewards
(1) The
Minister may:
(a) reward the person who first
notifies the Minister in accordance with section 17 of the location of any
remains or article:
(i) a description of the
location of which, being a description sufficient to enable the remains or
article to be located, had not previously been published in Australia; and
(ii) in respect of which a
declaration has, since the notification was made, been made under section 5
or which is a Dutch shipwreck or a Dutch relic or which is a historic shipwreck
or a historic relic;
(b) offer to reward, and reward the
person who first furnishes to the Minister a description of the location of a
historic shipwreck, or of a historic relic or historic relics, specified in the
offer, being a description sufficient to enable the historic shipwreck or
historic relic or historic relics to be located; and
(c) reward any person who furnishes
information leading to the conviction of a person for an offence against this
Act.
(2) The reward of a person under subsection (1)
shall be by way of:
(a) the payment to the person of an
amount not exceeding the prescribed amount; or
(b) the giving to the person of a
historic relic, plaque, model, replica or medallion;
or both.
(3) Payments by way of reward under this
section shall be made out of money appropriated by the Parliament for the
purpose of the control of historic shipwrecks.
(4) Articles referred to in paragraph (2)(b)
that are required to be purchased by the Commonwealth shall be purchased out of
money appropriated by the Parliament for the purpose of the control of historic
shipwrecks.
Part III—Miscellaneous
19
Arrangements for State and Northern Territory authorities to perform
certain functions
(1) The Governor‑General may make
arrangements with the Governor of a State or the Administrator of the Northern Territory for the performance of functions by a competent authority of the State
or of the Northern Territory in relation to the protection, recovery,
preservation and exhibition of historic shipwrecks and historic relics.
(2) Without prejudice to subsection (1),
the Governor‑General may make arrangements with the Governor of Western
Australia for the performance by The Western Australian Museum of functions in
relation to the protection, recovery, preservation and exhibition of Dutch
shipwrecks and Dutch relics.
20
Declaration as to ownership of remains of ships or relics
(1) Where the Minister is of the opinion that
it is necessary to do so for the purpose of carrying out or giving effect to
the Australia‑Netherlands Agreement, the Minister may, by notice published in
the Gazette, declare the ownership of a specified Dutch shipwreck to be
vested in a specified authority of the Commonwealth and, upon the publication
of the notice, that authority becomes, by force of this subsection, the owner
of that Dutch shipwreck free of any charges or other encumbrances.
(2) Where the Minister is of the opinion that
it is necessary to do so for the purpose of carrying out or giving effect to
the Australia‑Netherlands Agreement, the Minister may, by notice published in
the Gazette, declare the ownership of a specified Dutch relic to be
vested in a specified authority of the Commonwealth, in the State of Western
Australia, in a specified authority of that State or in the Government of the
Kingdom of the Netherlands and, upon the publication of the notice, the
authority of the Commonwealth, the State of Western Australia, the authority of
that State or the Government of the Kingdom of the Netherlands, as the case may
be, becomes, by force of this subsection, the owner of that Dutch relic free of
any charges or other encumbrances.
(3) Where the Minister is of the opinion that
it is necessary to do so for the purpose of carrying out or giving effect to
this Act or any relevant agreement other than the Australia‑Netherlands
Agreement, the Minister may, by notice published in the Gazette, declare
the ownership of the remains of a specified ship, or of a specified article
that was associated with a ship, or of all articles that were associated with a
specified ship, to be vested in the Commonwealth, in a specified State, in a
specified authority of the Commonwealth or of a State, in the Government of a
specified country other than Australia or in any other specified person and,
upon the publication of the notice, the Commonwealth, the State, the authority,
the Government, or the other person, as the case may be, becomes, by force of
this subsection, the owner of those remains or of that article or those
articles, free of any charges or other encumbrances.
(4) The publication of a notice under this
section in relation to a Dutch shipwreck, the remains of a ship not being a
Dutch shipwreck, a Dutch relic or any other article does not affect the
application of any other provision of this Act to or in relation to that Dutch
shipwreck, the remains of that ship, that Dutch relic or that other article, as
the case may be.
(5) Nothing in this section affects any power
of the Commonwealth otherwise than under this Act to dispose of or otherwise
deal with any remains of a ship, or any articles, that are the property of the
Commonwealth.
21
Compensation
(1) If the operation of this Act or the doing
of any act by the Minister in pursuance of this Act results in the acquisition
of property from a person, being an acquisition of property within the meaning
of paragraph 51(xxxi) of the Constitution, the Commonwealth is liable to pay to
that person such compensation as is determined by agreement between the
Commonwealth and that person or, in the absence of agreement, by action brought
by that person against the Commonwealth in the Supreme Court of a State or
Territory.
(2) In determining the compensation payable
to a person by the Commonwealth under this section in respect of the
acquisition of property from the person, the Court shall have regard to any
amount of compensation paid or payable to the person, in respect of the
acquisition, by a person other than the Commonwealth.
(3) The Supreme Courts of the States have
jurisdiction, and the Supreme Courts of the Territories have jurisdiction to
the extent that the Constitution permits, to hear and determine actions brought
in those courts under this section.
22
Appointment of inspectors
(1) The Minister may, by writing signed by
the Minister, appoint a person to be an inspector for the purposes of this Act.
(2) The Minister shall cause to be issued to
each inspector appointed under subsection (1) an identity card in
accordance with the prescribed form containing a photograph of the inspector.
(3) A person who ceases to be an inspector
appointed under subsection (1) shall forthwith return his or her identity
card to the Minister.
Penalty for a contravention of this subsection: $100.
23
Powers of inspectors
(1) Where an inspector has reasonable grounds
for believing that it is necessary to do so for the purpose of ascertaining
whether an offence against this Act has been or is being committed or that by
doing so evidence in relation to the commission of such an offence may be
obtained, the inspector may, with or without persons and equipment to assist
him or her:
(a) go on board a ship;
(b) require a person in charge of a
ship to take steps to facilitate boarding;
(c) open, or require a person to open,
any cargo holds, compartments or containers on any ship boarded in accordance
with paragraph (a) and inspect the contents of any such cargo holds,
compartments or containers;
(d) require any person found in or on
any ship boarded in accordance with paragraph (a) to produce any permit in
force under this Act that is in the possession of the person; and
(e) require a person to answer
questions.
(2) Where an inspector has reason to believe
that a person has failed to comply with a notice given to the person under
subsection 11(1), the inspector may make application to a Justice of the Peace
for a warrant authorizing the inspector, with or without persons and equipment
to assist him or her, for the purpose of ascertaining whether the person has
failed to comply with the notice:
(a) to enter any specified land or
premises; and
(b) to search any land or premises so
entered and to break open any cupboard, drawer, desk, box, package or other
receptacle, whether a fixture or not, on the land or in the premises.
(3) If, on an application under subsection (2),
the Justice of the Peace is satisfied by information on oath or affirmation
that the issue of the warrant is reasonably required for the purposes of that
subsection, the Justice of the Peace may grant a warrant accordingly.
(4) A warrant under subsection (3) shall
specify a date after which the warrant ceases to have effect.
(5) A person must not, without reasonable excuse,
fail to comply with a requirement made of the person by an inspector in the
exercise of a power under this section.
Penalty: 20 penalty units.
(5A) Paragraph (5)(a) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (5A). See subsection 13.3(3) of the Criminal
Code.
(6) It is a reasonable excuse for a person to
fail to answer a question that the person is required to answer under this
section that the answer to the question may tend to incriminate the person.
(7A) Paragraph (7)(a) does not apply if the
person has a reasonable excuse.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (7A). See subsection 13.3(3) of the Criminal
Code.
(8) In this section, ship
includes a hovercraft and any similar craft.
24
Arrest without warrant
(1) An inspector may, without warrant, arrest
a person if the inspector reasonably believes:
(a) that the person has committed an
offence against section 13 or against regulations made for the purposes of
section 14; and
(b) that proceedings against the
person by summons would not be effective.
(2) Where an inspector (other than a member
of a police force who is in uniform) arrests a person under subsection (1),
the inspector shall:
(a) in the case of an inspector who is
a member of a police force—produce, for inspection by the person arrested,
written evidence of the fact that the inspector is a member of a police force;
or
(b) in any other case—produce his or
her identity card for inspection by the person arrested.
(3) Where a person is arrested under subsection (1),
an inspector shall forthwith bring the person, or cause the person to be
brought, before a Justice of the Peace or other proper authority to be dealt
with in accordance with law.
(4) Nothing in this section prevents the
arrest of a person in accordance with any other law.
25
Seizure and forfeiture
(1) An inspector may seize any ship,
equipment or article that the inspector reasonably believes to have been used
or otherwise involved in the commission of an offence against this Act and may
retain the ship, equipment or article until the expiration of a period of 60
days after the seizure or, if a prosecution for an offence against this Act in
the commission of which the ship, equipment or article may have been used or
otherwise involved is instituted within that period, until the prosecution is
terminated.
(2) The Minister may authorize any ship,
equipment or article seized under subsection (1) to be released to its
owner, or to the person from whose possession it was seized, either
unconditionally or on such conditions as the Minister thinks fit, including
conditions as to the giving of security for payment of its value if it is forfeited.
(3) Where a court convicts a person of an
offence against this Act, the court may order the forfeiture to the
Commonwealth of any ship, equipment or article used or otherwise involved in
the commission of the offence.
(4) Any ship, equipment or article forfeited
under this section may be sold or otherwise dealt with as the Minister thinks
fit.
(5) A reference in this section to an article
involved in the commission of an offence includes a reference to any historic
shipwreck, or part of a historic shipwreck, or any historic relic, to which the
offence relates.
(6) In the section, ship
includes a hovercraft and any similar craft.
26
Certain offences indictable
(1) An offence against subsection 11(4) or
13(3) is an indictable offence.
(2) Notwithstanding that an offence referred
to in subsection (1) is an indictable offence, a court of summary
jurisdiction may hear and determine proceedings in respect of such an offence
if the court is satisfied that it is proper to do so and the defendant and the
prosecutor consent.
(3) Where, in accordance with subsection (2),
a court of summary jurisdiction convicts a person of an offence against
subsection 11(4) or 13(3), the penalty that the court may impose is:
(a) if the offender is a natural
person—a fine not exceeding $2,000 or imprisonment for a period not exceeding
12 months; or
(b) if the offender is a body
corporate—a fine not exceeding $10,000.
(4) Where the law of a State or Territory
makes provision for a person who pleads guilty to a charge in proceedings for
the commitment of the person for trial on indictment to be committed to a
higher court and dealt with otherwise than on indictment, a person charged in
that State or Territory with an offence against this Act may be dealt with in
accordance with that law.
27
Jurisdiction of courts
(1) A provision of the Judiciary Act 1903
by which a court of a State is invested with jurisdiction with respect to
offences against the laws of the Commonwealth has effect, in relation to
offences against this Act not committed within any State, as if that
jurisdiction were so invested without limitation as to locality.
(2) The trial on indictment of an offence
against this Act not committed within a State may be held by a court of
competent jurisdiction at any place where the court may sit.
28
Operation of Act
Subject to the obligations of Australia under international law, including obligations under any agreement between Australia and another country or countries, this Act extends, according to its tenor, to
foreigners and to foreign ships (including foreign hovercraft and any similar
foreign craft).
29
Certificate by Minister to be evidence
In any proceeding for an offence against
this Act, a certificate by the Minister stating that a place specified in the
certificate is a place:
(a) in Australian waters;
(b) in Australian waters or waters
above the continental shelf of Australia;
(ba) in State waters; or
(c) in a specified protected zone;
is prima facie evidence of the matters stated in
the certificate.
30
Delegation
(1) The Minister may, either generally or as
otherwise provided by the instrument of delegation, by writing signed by the
Minister, delegate to a person any of the powers of the Minister under this
Act, other than this power of delegation.
(2) A power so delegated, when exercised by
the delegate, shall, for the purposes of this Act, be deemed to have been
exercised by the Minister.
(3) A delegation under this section does not
prevent the exercise of a power by the Minister.
31
Notices
(1) Without prejudice to any other method of
service permitted by law, a notice to a person by the Minister under this Act
may be served on the person by being sent by post to the person at the address
of the person last known to the Minister.
(2) A notice to the Minister under this Act
may be given as prescribed.
(3) A notice by the Minister that has been
published in the Gazette in pursuance of this Act may be amended or
revoked by the Minister by a further notice published in the Gazette.
32
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters required
or permitted by this Act to be prescribed or necessary or convenient to be
prescribed for carrying out or giving effect to this Act or carrying out or
giving effect to the Australia‑Netherlands Agreement or any other relevant
agreement.