The Underwater Cultural Heritage Act 2018 will replace the Historic Shipwrecks Act 1976 with a modernised framework for protecting and managing Australia’s underwater cultural heritage and enable the Government to progress consideration of ratification of the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage.
The Historic Shipwrecks Act 1976 (the Historic Shipwrecks Act) is a 43 year old piece of legislation that:
- no longer meets best practice for the protection and management of underwater cultural heritage;
- is inconsistent with Australian Government policy on compliance and enforcement;
- does not meet current legislative drafting standards; and
- pre-dates Australia’s international commitments to the United Nations Convention on the Law of Sea (UNCLOS).
The Underwater Cultural Heritage Act 2018 (the Act) has several unique elements, these include:
- recognising that human remains are different to other articles of underwater cultural heritage;
- highlighting the importance of the Australian community and the need to promote public awareness in the objects of the Act;
- providing sunken aircraft with similar protection to shipwrecks;
- enabling other types of underwater cultural heritage to be protected; and
- allowing underwater cultural heritage of significance to Australia to be declared protected outside Australian waters.
The Act provides a modern compliance and enforcement regime that includes a graduated and proportional response to offenses.
Why does the Act automatically protect aircraft in the same way as shipwrecks but not other types of underwater cultural heritage?
Public responses to the 2009 Review of the Historic Shipwrecks Act 1976 and consideration of Australia’s ratification of the 2001 Convention on the Protection of the Underwater Cultural Heritage (the 2009 Review) indicated broad public support for aircraft to be automatically protected in a similar way to shipwrecks.
Sunken aircraft are the second largest type of underwater heritage. Most are military aircraft that occurred during World War II.
Sunken aircraft may contain human remains which are identifiable to the individual.
Other types of underwater cultural heritage are not excluded from protection; once located and assessed for heritage significance they can be declared on an individual basis.
Why does the Act align with the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage?
Public responses to the 2009 Review indicated broad public support for Australia’s ratification of this Convention.
In 2010 the Australian Government, States and the Northern Territory signed the Australian Underwater Cultural Heritage Intergovernmental Agreement that would enable the Australian Government to decide to ratify the Convention, should it so choose.
Ratification of the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage would give Australia an international basis for protecting underwater cultural heritage, between 24 nautical miles and our 200 nautical mile extended Economic Zone (EEZ) limit, from unauthorised actions by foreign persons or vessels.
Ratification would also enable Australia to participate in the global community’s response to illegal salvaging, looting and trafficking of underwater cultural heritage and give Australia a greater say in the day to day protection of our heritage outside of Australian waters.
Respect for human remains as part of heritage management was not a contemporary issue until after the Historic Shipwrecks Act was introduced in 1976.
Public responses during the 2009 Review indicated that human remains should be distinguished from other articles found in an underwater archaeological context.
Heritage management practice now emphasises the need to respect human remains found in archaeological contexts.
The Act now aligns Australia with International best practice in relation to respect for human remains.
Many sunken warships and military aircraft contain the remains of service personnel who were killed in action, however the Commonwealth Office of War Graves has confirmed that these sites cannot be designated as official war graves.
The War Graves Act 1980 requires that service personnel who died at sea must be commemorated through officially erected memorials on land.
Underwater cultural heritage sites are recognised as a part of the marine environment ecosystem and have a symbiotic relationship with the surrounding natural environment; what effects one effects both.
The SS Yongala in North Queensland is an outstanding example of a shipwreck site in a protected zone that effectively protects the cultural and natural environment. The Yongala is often regarded as one of the Worlds’ top ten dive spots because of the intact nature of the vessel structure and its role as a mid-reef system around which a myriad of marine life abounds. The Yongala is the focal point of the dive industry in and around the Townsville region.
Protected zones are management tools to manage access to significant sites, so any disturbance to the underwater cultural heritage and its associated environment is limited.
Of Australia’s 8000 shipwreck and sunken aircraft only 24 sites currently have protected zones declared around them.
Because of the size limitation to protected zones in the Historic Shipwrecks Act, a number of these sites have very little buffer area around the wreck, making them susceptible to indirect activities that disturb the seafloor in the marine environment.
This Act enables the declaration of protected zones that are tailored to effectively protect the underwater cultural heritage and its associated environment, by taking into account factors such as:
- the need to limit access to environmentally, socially or archeologically sensitive cultural material;
- any danger the underwater cultural heritage poses to the public; and
- the need to effectively manage the underwater cultural heritage and its surrounding environment.
Why does the Act enable the protection of heritage significant to Australia outside of jurisdictional waters?
Of increasing concern to many Australians is illegal salvaging activities in South East Asia. World War II underwater cultural heritage sites are being totally destroyed and this includes sites of significance to Australia, such as HMAS Perth (I) in Indonesia’s Sunda Strait.
Australia has many shipwrecks and sunken aircraft of heritage significance located in other countries waters, including vessels from World War I and II. This Act enables sites such as the World War I period HMAS AE1 in Papua New Guinea, or World War II period HMAS Canberra (I) in the Solomon Islands to be declared protected on an individual basis, with the cooperation of the nearest relevant Country.
Once declared, any disturbance by Australians on these sites will be regulated and their conduct will be an example to the nearest coastal State of how we would like these sites to be managed and protected and will be encouraged to participate in the management of the site.
The Historic Shipwrecks Act preceded the 1982 United Nation as Convention on the Law of the Sea (UNCLOS) agreement that establishes the rights and duties of nations in relation to the seas and oceans. Australia ratified UNCLOS in 1994.
International law permits a country to claim maritime zones extending from their coastlines in which they have certain rights and obligations over the ocean, seabed and subsoil adjacent to their territory.
The Act provides for regulation over Australian citizens within Australian waters, in the same way as the Historic Shipwrecks Act, and controls their conduct in regards to Australia’s overseas underwater cultural heritage.
Unlike the Historic Shipwrecks Act, for underwater cultural heritage UNCLOS is clear in that Australia cannot control the actions of foreign persons or foreign vessels in waters seaward of the contiguous zone (24 nautical miles out from the coast).
Only by Ratification of the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage will Australia have an international basis for protecting that underwater cultural heritage from unauthorised actions by foreign persons or foreign vessels.
Why does the Act have different jurisdictional frameworks for shipwrecks and all other underwater cultural heritage?
In 2010 the Australian Government, states and the Northern Territory signed the Australian Underwater Cultural Heritage Intergovernmental Agreement. This agreement codified the existing jurisdictional boundaries and the responsibilities for the protection of shipwrecks, sunken aircraft and other underwater cultural heritage.
The Commonwealth has responsibility for the identification, protection, management, conservation and interpretation of all declared historic shipwrecks in waters from adjacent to the Australian coast to the outer edge of the Continental shelf and all other underwater cultural heritage outside of State and Northern Territory coastal waters.
The States and Northern Territory retain their responsibility for the identification, protection, management, conservation and interpretation of shipwrecks found in waters within the limits of a State or the Northern Territory and responsibility for all other underwater cultural heritage (except shipwrecks) within States coastal waters and within the limits of the state.
In 1976 the Historic Shipwrecks Act enabled the public, who were in the possession, custody or control of protected relics (now called articles) to continue to do so.
The new Act continues to allow those people who met legal obligations under the Historic Shipwrecks Act to continue to transfer protected articles in their possession, custody or control under the modernised arrangements provided for by the Act and has simplified the process by introducing transferrable permits.
Continuing on from the Historic Shipwrecks Act which aimed to protect heritage in-situ, only articles recovered under permit, from protected historic shipwrecks, are legally in the possession, custody or control of the permit holder.
Protection for aircraft, their associated articles and other underwater cultural heritage sites will only occur from the date those sites are protected. Transitional arrangements will be administered for the first six months of the Act coming into force so that the public, who has come into possession of an aircraft artefact before the Act’s commencement, will not be retrospectively penalised.