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Historic Shipwrecks Act 1976

Authoritative Version
  • - C2012C00174
  • In force - Superseded Version
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Act No. 190 of 1976 as amended, taking into account amendments up to Acts Interpretation Amendment Act 2011
An Act relating to the Protection of Certain Shipwrecks and Relics of Historic Significance
Administered by: Environment
Registered 02 Feb 2012
Start Date 27 Dec 2011
End Date 17 Jun 2015

Historic Shipwrecks Act 1976

Act No. 190 of 1976 as amended

This compilation was prepared on 24 January 2012
taking into account amendments up to Act No. 46 of 2011

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                              1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement and application of Act [see Note 1]........................... 1

3............ Interpretation....................................................................................... 3

3A......... Wrecks etc. partly in Australian waters and partly in State waters...... 6

3B......... Application and extension of Act........................................................ 7

4............ Act to bind Crown.............................................................................. 7

4AA...... Application of the Criminal Code....................................................... 7

Part II—Protection of historic shipwrecks and relics                                      8

4A......... Shipwrecks and relics associated with State or Territory may be declared to be historic          8

5............ Certain shipwrecks and relics may be declared to be historic............ 11

6............ Provisional declaration that shipwrecks and relics are historic.......... 12

7............ Protected zones................................................................................. 13

8............ Further publication of notices............................................................ 14

9............ Notice of location of historic shipwrecks and relics.......................... 14

10.......... Power of Minister to ascertain location of historic shipwrecks and relics                16

11.......... Power of Minister to give directions in relation to custody etc. of historic shipwrecks and relics            17

12.......... Register of Historic Shipwrecks....................................................... 18

13.......... Prohibition of certain action in relation to historic shipwrecks and relics 18

14.......... Regulations may prohibit certain activities in protected zone............. 19

15.......... Permits for exploration or recovery of shipwrecks and relics........... 20

16.......... Defences........................................................................................... 22

17.......... Discovery of shipwrecks and relics to be notified............................. 22

18.......... Rewards............................................................................................ 23

Part III—Miscellaneous                                                                                                    24

19.......... Arrangements for State and Northern Territory authorities to perform certain functions          24

20.......... Declaration as to ownership of remains of ships or relics................. 24

21.......... Compensation................................................................................... 25

22.......... Appointment of inspectors................................................................ 26

23.......... Powers of inspectors......................................................................... 26

24.......... Arrest without warrant...................................................................... 28

25.......... Seizure and forfeiture........................................................................ 28

26.......... Certain offences indictable................................................................ 29

27.......... Jurisdiction of courts......................................................................... 30

28.......... Operation of Act............................................................................... 30

29.......... Certificate by Minister to be evidence............................................... 30

30.......... Delegation......................................................................................... 30

31.......... Notices.............................................................................................. 31

32.......... Regulations....................................................................................... 31

Schedules                                                                                                                                   32

Schedule 1—Agreement between the Netherlands and Australia concerning old Dutch shipwrecks   32

Schedule 2—Dutch shipwrecks off the coast of Western Australia      37

Notes                                                                                                                                             39


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 IPreliminary

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 IIProtection 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 IIIMiscellaneous

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.


Schedules

Schedule 1Agreement between the Netherlands and Australia concerning old Dutch shipwrecks

Section 3

THE UNDERSIGNED:

1.    MR WIM BLOKZIJL, resident of The Hague, Head of the Inspection Division of the State Property Directorate of the Ministry of Finance, acting on behalf of the State of the Netherlands, hereinafter referred to as “The Netherlands”.

2.    DR LLOYD DOUGLAS THOMSON, M.V.O., Australian Ambassador to the Netherlands, acting on behalf of the Government of the Commonwealth of Australia, hereinafter referred to as “Australia”:

HAVING REGARD TO THE FACT:

A.    That vessels that belonged to the Dutch “VEREENIGDE OOSTINDISCHE COMPAGNIE” known as the V.O.C., hereinafter referred to as “the V.O.C.”, were wrecked on or off the coast of Western Australia;

B.    That the Netherlands, by virtue of article 247 of the 1798 Constitution of the Batavian Republic, is the present legal successor to the V.O.C.:

AGREE AS FOLLOWS:

Article 1:     The Netherlands, as successor to the property and assets of the V.O.C., transfers all its right, title and interest in and to wrecked vessels of the V.O.C. lying on or off the coast of the State of Western Australia and in and to any articles thereof to Australia which shall accept such right, title and interest.

Article 2:     For the purpose of this Agreement, the expression “articles” means any part of vessels as referred to in article 1, that have become or have been detached or removed therefrom, as well as the fittings, goods and other property, wherever situated, that were installed or carried on those vessels.

Article 3:     Australia shall make no claim on the Netherlands for reimbursement of any costs incurred in searching for any of the vessels referred to in article 1 of this Agreement or in recovering any articles from those vessels.

Article 4:     Australia recognizes that the Netherlands has a continuing interest, particularly for historical and other cultural purposes, in articles recovered from any of the vessels referred to in article 1 of this Agreement.

Accordingly Australia shall set up a Committee to determine the disposition and subsequent ownership of the recovered articles between the Netherlands, Australia and the State of Western Australia.

Article 5:     The Committee referred to in article 4 of this Agreement shall be set up within 90 days after the entry into force of the Agreement and shall comprise two persons nominated by the Netherlands and two persons nominated by Australia. These persons shall have the scientific and cultural expertise appropriate for the discharge of their functions.

Article 6:     The Committee shall determine the disposition of the recovered articles in accordance with the principles which have been agreed upon by Australia and the Netherlands and are set out in the Arrangement signed by Australia and the Netherlands and attached to this document.

Article 7:     Expenditure incurred by the Committee in the performance of its work shall be shared between the two Parties represented on the Committee, the share to be borne by the Netherlands being one third and that by Australia two thirds provided that—

      (I)     each Party shall bear the costs of travel by the Committee members nominated by it,

     (II)     the costs of communications by a party to the Committee shall be borne by the despatching Party, and

   (III)     the expenses of transportation of articles distributed in accordance with determinations of the Committee shall be borne by the recipients of the articles.

Article 8:     If the members of the Committee referred to in article 4 of this Agreement cannot come to an agreement on the disposition of particular articles, Australia and the Netherlands shall appoint an independent consultant to report on the matter in issue and the report shall be referred to the Committee for re‑consideration of the matter. The cost of the report shall be shared between the two Parties represented on the Committee, the share to be borne by the Netherlands being one third and that by Australia two thirds.

Article 9:     If, on considering the consultant’s report on a matter, the members of the Committee cannot come to an agreement on the disposition of the recovered articles, the matter will be referred to the Government of the Kingdom of the Netherlands and the Government of the Commonwealth of Australia, which will settle the matter by negotiation.

Article 10:   This Agreement shall enter into force on the date of the signatures of both Parties.

DONE at The Hague this sixth day of November in the year One thousand nine hundred and seventy‑two in two originals in the English language.

ARRANGEMENT SETTING OUT THE GUIDING PRINCIPLES FOR THE COMMITTEE TO DETERMINE THE DISPOSITION OF MATERIAL FROM THE SHIPWRECKS OF DUTCH EAST INDIA COMPANY VESSELS OFF THE COAST OF WESTERN AUSTRALIA

THE COMMITTEE

Responsibility

The Committee’s responsibility will embrace all material recovered from the wrecks—whether recovered before or after the coming into operation of the Western Australian Museum Act in December 1964 which contains provisions for vesting in the Museum title to the wrecks of the Batavia, the Gilt Dragon, the Zuytdorp and Zeewyk.

Conduct of Business

The Committee is small enough to meet if occasion demands but most of its work could be done by correspondence.

General Principles

Representative collections

The cost of recovery (including treatment) is likely to exceed by far the intrinsic or antiquarian sale‑value of material recovered. The Government of Western Australia is spending considerable sums on this work ($92,000 in the last financial year) and estimates that the total cost will be $2,000,000 or more. Although a division would not be warranted by consideration of cash value alone, the historic, educational, scientific and international considerations are such as to make the deposition of representative collections in the museums of the Netherlands and Australia most desirable. The remainder of the material would be held in the Western Australian Museum.

Considerations governing the partition of archaeological collections

In modern archaeological practice sites are no longer regarded merely as a source of important individual items, but rather as a body of material whose collective value far outweighs the importance of the individual pieces and in which the relationship of the individual objects within the sample are a major part of its historical value. Accordingly, the sharing of material from an archaeological site is best regarded as the accommodation in several localities of a corporate entity rather than its division into parts.

If the decision is made that the contents of an archaeological site are to be apportioned between two or more institutions, the first principle to be observed is that the total assemblage should be capable of reassembly to allow further statistical and scholarly analysis. It follows, therefore, that unnecessary splitting of a sample of closely similar objects capable of statistical treatment should be avoided and, where samples are accommodated in more than one institution, those institutions should contract not to disperse them further and, moreover, to agree to allow samples to be brought together for analysis and study as required. The second principle is that where unique or rare objects, themselves, form a meaningful assemblage within the whole, this assemblage should not be split or, if split, perfect replicas be made to complete the assemblage. As in the case of the division of statistical samples an agreement should be made between the recipients to reconstitute the original assemblage if it is required for scholarly research.

Treatment of material recovered

The contents of the ancient shipwrecks of the Dutch East India Company include abundant statistical samples such as coin, bricks, objects of pottery, elephant tusks, and so on. There are also many articles which are less abundant but which are duplicated many times over. Many of these are ship fittings such as cannon, anchors, cannon balls, etc. There are also other articles which are relatively rare, or even unique, in the deposits (e.g. articles possessed by crew members, or passengers, such as barber’s instruments, navigational instruments, ornaments, etc.). Most articles are fragmentary and in need of immediate chemical conservation and stabilization in the laboratory as soon as they are recovered. This treatment cannot await distribution.

Operating Principles

Code of Operation

The Committee will operate by reviewing proposals for distribution made, from time to time, by the Director of the Western Australian Museum; it could decide that the proposed samples be increased or decreased in content in the light of the total material collected and other factors.

General aims

In its deliberations the Committee will have, as its general aim, the purpose of ensuring that representative series of statistical samples and sufficient examples of the rarer objects will be deposited in the museums of the Netherlands and Australia to convey the variety and contents of each wreck to both the public and to scholars while, at the same time, ensuring that major projects of scholarly research will not be impeded by overfragmentation of the collection. Dispersal in this way, among separate repositories will also help to ensure the permanent safety of representative material in the event of the destruction of any one repository.

Statistical samples

Most material so far recovered from the vessels are samples capable of statistical treatment.

A representative collection of the contents of each statistical sample should be made available to a museum of the Netherlands Government and a museum of the Commonwealth Government. Thus, in the case of coin, for example, both the Netherlands and Commonwealth Governments would receive as complete a series as possible representing the mintings and values contained within each of the wrecks. These will provide their museums with ample material of this class of objects for display purposes and sufficient to enable a scholar to make the initial qualitative studies which would possibly lead him to a more detailed statistical treatment of the bulk sample retained in the Western Australian Museum.

Less common or rare objects

In order to ensure that both the Netherlands and Commonwealth Governments acquire, in due course, representative collections of the less common and even unique objects, the following procedure will be adopted. Since the relationships of such objects to the whole sample cannot be known until excavation is complete, the distribution of specimens of this nature cannot be considered during the continuing process of recovery. However, at reasonable intervals (of say two or three years) it should be possible to assemble a representative sample with fair certainty that all duplicates of any rare object present in a particular excavation should have been recovered and their nature taken into consideration during the deliberations of the Committee.

THE HAGUE,

6th November, 1972


Schedule 2Dutch shipwrecks off the coast of Western Australia

Section 3

 

Name by which Vessel was known

Approximate location

“Batavia”..................................

Beacon Island, Wallabi Group, Houtmans Abrolhos

“Vergulde Draeck” or “Gilt Dragon”

Ledge Point

“Zuytdorp”...............................

40 miles north of the mouth of the Murchison River

“Zeewyk”.................................

Gun Island, Pelsart Group, Houtmans Abrolhos


Notes to the Historic Shipwrecks Act 1976

Note 1

The Historic Shipwrecks Act 1976 as shown in this compilation comprises Act No. 190, 1976 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 24 November 2000 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Historic Shipwrecks Act 1976

190, 1976

15 Dec 1976

15 Dec 1976

 

Jurisdiction of Courts (Miscellaneous Amendments) Act 1979

19, 1979

28 Mar 1979

Parts II–XVII (ss. 3–123): 15 May 1979 (see Gazette 1979, No. S86)
Remainder: Royal Assent

S. 124

Historic Shipwrecks Amendment Act 1980

88, 1980

29 May 1980

29 May 1980

S. 6(2)

Statute Law Revision Act 1981

61, 1981

12 June 1981

Part XIII (ss. 56, 57): 19 June 1981 (a)

Torres Strait Treaty (Miscellaneous Amendments) Act 1984

22, 1984

26 Apr 1984

Part X (ss. 29, 30): 15 Feb 1985 (see s. 2(2) and Gazette 1985, No. S38)
Remainder: 15 Feb 1985 (see s. 2(1) and Gazette 1985, No. S38)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1985

65, 1985

5 June 1985

S. 3: 3 July 1985 (b)

 —

as amended by

 

 

 

 

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: 3 July 1985 (c)

S. 16

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001

15, 2001

22 Mar 2001

S. 4 and Schedule 1 (items 96–103): 24 May 2001 (d)

S. 4 [see Table A]

Offshore Petroleum (Repeals and Consequential Amendments) Act 2006

17, 2006

29 Mar 2006

Schedule 2 (item 37): 1 July 2008 (see s. 2(1) and F2008L02273)

Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010

4, 2010

19 Feb 2010

Schedule 10 (item 21): 20 Feb 2010

Territories Law Reform Act 2010

139, 2010

10 Dec 2010

Schedule 1 (item 68): 11 Dec 2010

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Schedule 2 (items 685–687) and Schedule 3 (items 10, 11): 27 Dec 2011

Sch. 3 (items 10, 11) [see Table A]


(a)     The Historic Shipwrecks Act 1976 was amended by Part XIII (sections 56 and 57) only of the Statute Law Revision Act 1981, subsection 2(6) of which provides as follows:

                 (6)   Part XIII shall come into operation, or shall be deemed to have come into operation, as the case requires, on the day after the day on which Part II of the Petroleum (Submerged Lands—Miscellaneous Amendments) Act 1981 comes or came into operation.

(b)     The Historic Shipwrecks Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(c)     The Statute Law (Miscellaneous Provisions) Act (No. 1) 1985 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) (No. 2) Act 1985, subsection 2(15)(b) of which provides as follows:

                              (b)   in the case of the other amendments—on the twenty‑eighth day after the day on which that Act received the Royal Assent.

(d)     The Historic Shipwrecks Act 1976 was amended by Schedule 1 (items 96–103) only of the Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(c) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the latest of the following days:

                              (c)   the day on which item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 commences.


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Preamble............................

am. No. 88, 1980

Part I

 

S. 2......................................

am. No. 88, 1980; No. 22, 1984; No. 65, 1985; No. 46, 2011

S. 3......................................

am. No. 88, 1980; No. 61, 1981; No. 22, 1984; No. 65, 1985; No. 15, 2001; No. 17, 2006; No. 4, 2010; No. 46, 2011

Ss. 3A, 3B...........................

ad. No. 65, 1985

S. 4......................................

rs. No. 65, 1985

S. 4AA.................................

ad. No. 15, 2001

Part II

 

S. 4A...................................

ad. No. 65, 1985

 

am. No. 139, 2010

S. 5......................................

am. No. 22, 1984; No. 65, 1985

Ss. 6–9................................

am. No. 65, 1985

S. 10....................................

am. No. 65, 1985; No. 137, 2000

Ss. 11, 12............................

am. No. 65, 1985

S. 13....................................

am. No. 65, 1985; No. 15, 2001

S. 15....................................

am. No. 65, 1985; No. 15, 2001

S. 16....................................

am. No. 88, 1980

S. 17....................................

am. No. 65, 1985; No. 137, 2000

S. 18....................................

am. No. 65, 1985

Part III

 

S. 19....................................

am. No. 88, 1980

S. 20....................................

am. No. 65, 1985

S. 21....................................

am. No. 19, 1979

S. 22....................................

am. No. 65, 1985

S. 23....................................

am. No. 65, 1985 (as am. by No. 193, 1985); No. 137, 2000; No. 15, 2001

Ss. 24, 25............................

am. No. 65, 1985

S. 26....................................

rs. No. 65, 1985

 

am. No. 137, 2000

Ss. 29, 30............................

am. No. 65, 1985


Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1)       Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)       Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Environment and Heritage Legislation Amendment (Application of Criminal Code) Act 2001 (No. 15, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

Schedule 3

10  Saving—appointments

The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.

11  Transitional regulations

The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.