Badger Bates sunset sculpture tour MV

About the National Parks and Wildlife Act 1974

We work with the community to preserve, manage and protect Aboriginal cultural heritage values.

Aboriginal cultural heritage is protected under the following legislation:

Credit: Colin Davison Heritage NSW

Aboriginal objects and Aboriginal places are protected under the NPW Act under the Act. It is an offence to harm or desecrate Aboriginal objects and places knowingly or unknowingly. There are exemptions and defenses to this which are discussed further below.

An Aboriginal Place may be declared over any area of land in New South Wales if the Minister declares that area is of special significance to Aboriginal culture.

This declaration provides legal mechanisms to safeguard declared Aboriginal Places from harm or desecration unless the appropriate permit has been issued.

The declaration of an Aboriginal Place does not change the status of or affect ownership rights; but a person must not modify, harm or desecrate a declared Aboriginal Place without an Aboriginal Heritage Impact Permit issued under the NPW Act.

Compliance with the NPW Act 1974

The NPW Act sets out tiered strict liability offences and penalties for harming or desecrating Aboriginal objects or places (s 86). Harm is defined to include destroy, deface or damage an object or place (s 5). Any offences committed with knowledge in aggravating circumstances attract a higher penalty (s 86(3)).

The Aboriginal cultural heritage offences and the penalty for each offence are summarised below.

Offence

Maximum penalty individual

Maximum penalty corporation

A person must not harm or desecrate an Aboriginal object that the person knows is an Aboriginal object

2,500 penalty units ($275,000) or imprisonment for 1 year

5,000 penalty units ($550,000) or imprisonment for 2 years or both (in circumstances of aggravation)

10,000 penalty units ($1,100,000)

A person must not harm or desecrate an Aboriginal object (strict liability offence)

500 penalty units ($55,000)

1,000 penalty units ($110,000)

(in circumstances of aggravation)

2,000 penalty units

($220,000)

A person must not harm or desecrate an Aboriginal place (strict liability offence)

5,000 penalty units ($550,000) or imprisonment for 2 years or both

10,000 penalty units 
($1,100,000)

Failure to notify DPC of the location of an Aboriginal object (existing offence and penalty)

100 penalty units ($11,000). For continuing offences, a further maximum penalty of 10 penalty units ($1,100) applies for each day the offence continues.

200 penalty units ($22,000). For continuing offences, a further maximum penalty of 20 penalty units ($2,200) applies for each day the offence continues

Contravention of any condition of an Aboriginal Heritage Impact Permit

1,000 penalty units ($110,000) or imprisonment for 6 months, or both, and in the case of a continuing offence a further penalty of 100 penalty units ($11,000) for each day the offence continues

2,000 penalty units ($220,000) and in the case of a continuing offence a further penalty of 200 penalty units ($22,000) for each day the offence

Exemptions

There are a number of exemptions to the offences discussed above, including where the harm occurred as a result of:

  • Work being carried out for the conservation or protection of an Aboriginal object or place by an officer of Heritage NSW or a person under the direction of such an officer
  • Any emergency firefighting act or bush fire hazard reduction work within the meaning of the Rural Fires Act 1997 that is authorised or required to be carried out under that Act
  • Anything authorised by or under the State Emergency and Rescue Management Act 1989 in relation to an emergency and that was reasonably necessary in order to avoid an actual or imminent threat to life or property
  • Anything required or permitted under a conservation agreement entered into under the NPW Act

Defences

There are a number of defences to the offence of harming an Aboriginal object or place under s 87 of the NPW Act. These include:

  • Where the defendant has exercised due diligence to, determine whether the act or omission would harm an Aboriginal object or, reasonably determine that no Aboriginal object would be harmed
  • Where the defendant has exercised due diligence by ensuring compliance with a code of practice adopted or prescribed by the NPW Regulations (see Fact Sheet 2)
  • Where the defendant can show that the harm or desecration concerned was authorised by an AHIP, and the conditions of that AHIP were not contravened
  • Where the act or omission is defined in the NPW Regulation as a low impact act or omission. Such activities are defined under clause 60 of the NPW Regulations and include undertaking specified farming, land management, maintenance, surveying or environmental rehabilitation works

Under the Heritage Act, the Heritage Council of NSW identifies and recommends items of state significance to the Minister to be registered on the NSW State Heritage Register, including items of Aboriginal cultural significance.