Aboriginal Cultural Heritage Laws by State: NSW, Vic, Qld, WA, SA

State heritage statutes overview

Each state and territory in Australia has legislation designed to protect Aboriginal cultural heritage. These laws vary in their approach and specific requirements, reflecting differing historical contexts and priorities. The EPBC Act environment protection framework also interacts with state legislation.

New South Wales protects Aboriginal objects and places through Part 6 of the National Parks and Wildlife Act 1974, with Heritage NSW responsible for administration. Victoria’s Aboriginal Heritage Act 2006 introduces Registered Aboriginal Parties and mandates Cultural Heritage Management Plans for activities with significant potential impacts. Queensland’s Aboriginal Cultural Heritage Act 2003 places a duty of care on all land users to prevent harm to cultural heritage.

Western Australia’s legislative landscape has recently changed; the Aboriginal Cultural Heritage Act 2021 was repealed and the Aboriginal Heritage Act 1972, as amended, is now in effect. South Australia’s Aboriginal Heritage Act 1988 safeguards sites, objects and remains, requiring ministerial authorisation before any damage or interference can occur. The Native Title Act 1993 future acts also influences heritage management.

Duty of care and consent regimes

Each state and territory has established mechanisms to protect Aboriginal cultural heritage. In Queensland, a positive duty of care is enshrined in the Aboriginal Cultural Heritage Act, requiring land users to avoid harm to cultural heritage. The Minister can issue guidelines to inform how this duty should be fulfilled, and these guidelines must be consulted. This duty applies to all land tenure types and even where heritage has not been previously identified. EPBC Act environmental offsets policy may be relevant in some circumstances.

Victoria’s approach involves Cultural Heritage Management Plans for activities with significant ground disturbance in areas of cultural heritage sensitivity. New South Wales requires an Aboriginal Heritage Impact Permit under the National Parks and Wildlife Act before any harm occurs to Aboriginal objects or declared places.

Penalties for damaging cultural heritage without appropriate authorisation are in place across all jurisdictions. These penalties typically apply on a per-offence basis and increase substantially for corporations.

Western Australia after the 2023 repeal

The Aboriginal Heritage Legislation Amendment and Repeal Act 2023 received assent on 24 October 2023, repealing the 2021 Act approximately five weeks after its commencement. This change followed criticism arising from the Juukan Gorge destruction parliamentary inquiry. The restored regime maintains section 18 approvals as the primary consent mechanism for activities that may impact Aboriginal sites.

Landholders now have an ongoing obligation to notify the Minister of any new information about Aboriginal heritage relevant to a section 18 approval. Section 18 consent applications are assessed by the Aboriginal Cultural Material Committee, with a right of review to the State Administrative Tribunal.

The changes impact how future acts are managed under the Native Title Act 1993 future acts framework.

Federal overlay and corporate due diligence

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) provides a federal overlay to state-based Aboriginal cultural heritage legislation. The federal Minister has the power to make declarations protecting significant areas where state laws are considered inadequate. Activities may also trigger referrals under the EPBC Act environment protection biodiversity if they are likely to have a significant impact on National or Commonwealth Heritage values.

Following the Juukan Gorge incident, ASX-listed resources companies now routinely report on Aboriginal heritage management within their sustainability reports. This increased scrutiny has led to a greater emphasis on proactive risk management within the resources sector.

Corporate due diligence processes now commonly incorporate a range of activities to identify and mitigate potential heritage risks. These include registered site searches, ethnographic surveys, archaeological assessment, and consultation with Traditional Owners. Project finance lenders are also increasingly requiring processes aligned with the UN Declaration on the Rights of Indigenous Peoples, often resembling Free, Prior and Informed Consent.