Full steam ahead: Recent developments concerning Australia's new legal regime for regulating underwater cultural heritage

Author:Guy Dwyer - Stephen Klimis
Position:Guy Dwyer, BSc LLB (Hons I) (Macq), LLM (w/ Excellence) (UNSW), is an Associate of the Centre for Environmental Law at Macquarie University and, from February 2020, will be a Senior Associate at Baker & McKenzie (Sydney). Stephen Klimis, BSc LLB (Hons) (UNSW), is a Lawyer at Ashurst (Sydney). The views expressed in this article are our own, and...
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Recent Developments Concerning Australias New Legal Regime for Regu lating UCH
(2019) 33 A&NZ Mar LJ 12
FULL STEAM AHEAD: RECENT DEVELOPMENTS CONCERNING AUSTRALIA’S
NEW LEGAL REGIME FOR REGULATING UNDERWATER CULTURAL HERITAGE
Guy Dwyer and Stephen Klimis*
1 Introduction
Australia’s new legislation for the protection of its underwater cultural heritage (UCH), the Underwater Cultura l
Heritage Act 2018 (Cth) (UCH Act), received assent on 24 August 2018.1 The UCH Act was subject to analysis
in an article previously published in this journal, written by the first author of this article (Earlier Article).2 Since
the Earlier Article was published, the implementation of the new legal regime has occurred with much pace. There
have been two key developments:
a. the UCH Act commenced operation on 1 July 2019, replacing the previous legislative framework created
by the Historic Shipwrecks Act 1976 (Cth) (HS Act); and
b. the Under water Cultural Herita ge Rules 2018 (Cth) (UCH Rules), the subordinate legislation
underlying the UCH Act, also commenced operation on 1 July 2019.
The UCH Rules were not considered in the Earlier Article as they were not publicly available at the time the
Earlier Article was written. As such, it is timely to provide an overview of, and some commentary on, the UCH
Rules now that they have commenced . To that end, this article will consider the following aspects o f the UCH
Rules:
1. the criteria which the Minister must have regard to when assessing whether th e Minister is satisfied that
an article is of heritage significance;
2. the mandatory relevant matters which the Minister must have regard to when deciding whether to grant
or refuse to grant a permit to engage in conduct relating to UCH protected under the UCH Act ;
3. the mandatory relevant matters which the Minister must have regard to when deciding whether to vary
an existing permit to engage in conduct relating to UCH protected under the UCH Act ;
4. the matters which must be specified in permits to engage in conduct relating to UCH protected under the
UCH Act; and
5. noteworthy omissions from the UCH Rules, having regard to the analysis contained in the Earlier Article.
2 The Heritage Significance Criteria
As explained in the Earlier Article, the new legal framework created by the UCH Act has, subject to the operation
of the provisions contained in Part 2 of the UCH Act regarding revocation of a Ministerial declaration as to UCH,
both a permanent and provisional aspect to it.3
The permanent protectio n aspect of the UCH Act involves UCH being afforded permanent legal protection
through two pathways:4
1. automatic protection under s 16(1) of the UCH Act; and
* Guy Dwyer, BSc LLB (Hons I) (Macq), LLM (w/ Excellence) (UNSW), is an Associate of the Centre for Environmental Law at
Macquarie University and, from February 2020, will be a Senior Associate at Baker & McKenzie (Sydney). Stephen Klimis, BSc LLB
(Hons) (UNSW), is a Lawyer at Ashurst (Sydney). The views expressed in this article are our own, and do not represent the views of any
other third party. We take responsibility for any errors contained herein.
1 The Underwater Cultura l Heritage (Consequential and Transitiona l Provisions) Act 2018 (Cth) also received assent on 24 August 2018.
2 See Guy J Dwyer, ‘Ship Shape or All at Sea? A Preliminary Assessment of Australia’s Recent Legislative Reforms Concerning
Underwater Cultural Heritage’ (2018) 32 Australia n and New Zealand Maritime Law Journal 71.
3 Ibid 91.
4 Ibid.

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