Under s 79B for the purposes of the Act
(1) Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.
(2) Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).Section 79D deals with Aboriginal intangible heritage agreements
(1) For the purposes of this Act, an Aboriginal intangible heritage agreement is an agreement relating to registered Aboriginal intangible heritage made between any person or body and— (a) a registered Aboriginal party; or (b) a registered native title holder; or (c) a traditional owner group entity.
(2) An Aboriginal intangible heritage agreement may deal with any of the following— (a) the management, protection or conservation of Aboriginal intangible heritage; (b) the research or publication of Aboriginal intangible heritage; (c) the development or commercial use of Aboriginal intangible heritage; (d) the rights of traditional owners to use and commercially exploit Aboriginal intangible heritage, including anything produced from the research and development of Aboriginal intangible heritage; (e) the compensation to be paid to traditional owners for the research, development and commercial use of Aboriginal intangible heritage.
(3) An Aboriginal intangible heritage agreement cannot deal with any activity for which a cultural heritage permit or cultural heritage management plan is required under this Act.
(4) An Aboriginal intangible heritage agreement has effect as an agreement under seal.Under s 79E (Form of Aboriginal intangible heritage agreement)
An Aboriginal intangible heritage agreement must be in the prescribed form and include the following information— (a) the parties to the Aboriginal intangible heritage agreement and the period for which the agreement applies; (b) a description of the Aboriginal intangible heritage to which the agreement relates; (c) any other information the registered Aboriginal party, registered native title holder or traditional owner group entity reasonably considers necessary.79F deals with Registration of Aboriginal intangible heritage agreements
(1) After entering into an Aboriginal intangible heritage agreement, the parties to the agreement must, without delay, give a copy of the agreement to the Secretary for recording on the Register.
(2) The parties to an Aboriginal intangible heritage agreement must, without delay, notify the Secretary in writing of any amendment to or termination of the agreement.Under s 79G it is an offence to use registered Aboriginal intangible heritage for commercial purposes
(1) A person must not knowingly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.
Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 10 000 penalty units.
(2) A person must not recklessly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity.
Penalty: In the case of a natural person, 1200 penalty units; In the case of a body corporate, 6000 penalty units. (3) This section does not apply to any Aboriginal intangible heritage that is the subject of a registered Aboriginal intangible heritage agreement. Note Section 187A applies to an offence against subsection (1) or (2).Under s 79H it is an offence to fail to comply with a registered Aboriginal intangible heritage agreement
(1) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party knew that the act failed to comply with the conditions of the agreement.
(2) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (1) is liable to a penalty not exceeding— (a) in the case of a natural person, 600 penalty units; (b) in the case of a body corporate, 3000 penalty units.
(3) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party was reckless as to whether the act failed to comply with the conditions of the agreement.
(4) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (3) is liable to a penalty not exceeding— (a) in the case of a natural person, 300 penalty units; (b) in the case of a body corporate, 1500 penalty units.
(5) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party was negligent as to whether the act failed to comply with the conditions of the agreement.
(6) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (5) is liable to a penalty not exceeding— (a) in the case of a natural person, 60 penalty units; (b) in the case of a body corporate, 300 penalty units.The Explanatory Memorandum comments
It is intended that Aboriginal intangible heritage is owned collectively by traditional owners of the area, region or culture from where it is reasonably believed that intangible heritage originates. For the purposes of the Principal Act, it is not intended for individuals to own Aboriginal intangible heritage.
Clause 9 inserts a new section 12(2). This defines "own" to include collective ownership and custodianship as understood by traditional owners in accordance with Aboriginal tradition. This is intended to better accommodate such notions of ownership as understood under some Aboriginal traditions. ...
Clause 12 inserts a requirement for public entities and universities which may hold Aboriginal ancestral remains to examine their holdings and report on any collections to the Victorian Aboriginal Heritage Council within two years of the commencement of the section. It will be an offence not to comply, with a penalty of 3000 penalty units. Once reported upon, the institution must take steps to transfer the collection to the Victorian Aboriginal Heritage Council as soon as practicable. ....
Clause 20 inserts new sections 21A and 21B, after section 21 of the Principal Act. Section 21A clarifies the intent that secret and sacred Aboriginal objects are no longer able to be lawfully owned by individuals or State entities other than in accordance with Aboriginal tradition. People in possession of secret or sacred Aboriginal objects on the commencement of the section must transfer these objects to the Victorian Aboriginal Heritage Council as soon as practicable.
The provision creates an offence of failing to transfer secret or sacred objects to the Victorian Aboriginal Heritage Council as soon as practicable after the commencement of the section. The intent is to encourage compliance.
The intent of section 21B is that secret or sacred Aboriginal objects are to be treated similarly as Aboriginal ancestral remains by the Principal Act. The Council is required to follow the same procedures as for Aboriginal ancestral remains once it receives secret or sacred objects.
Clause 21 amends section 23 of the Principal Act and clarifies that "traditional owners" hold primacy in negotiating the return of secret or sacred objects. ....
New section 79D provides Aboriginal intangible heritage agreements. It is the intention of the provision that a person or body may make an agreement with a relevant traditional owner group covering the management, protection, conservation, research, publication, development, commercial use, and compensation to be paid to the relevant traditional owner group for the above. Traditional owner use of the intangible heritage and anything produced from the research and development of that Aboriginal intangible heritage may also be covered by such agreements.
Aboriginal intangible heritage agreements cannot deal with any matter for which a cultural heritage permit or cultural heritage management plan is required under the Act.
New section 79E establishes a prescribed form for an Aboriginal intangible heritage agreement.
New section 79F establishes the requirement to register the agreement with the Secretary and to notify the Secretary of any amendment or the termination of the agreement. This is intended to facilitate the accuracy of information on the Victorian Aboriginal Heritage Register. It is intended to protect Aboriginal intangible heritage which is registered on the Victorian Aboriginal Heritage Register from unauthorised commercial use. New section 79G creates an offence, with two levels of mental culpability, intended to prevent this from occurring. New section 79H makes it an offence, with three levels of mental culpability, for a party to an Aboriginal intangible heritage agreement to fail to comply with the agreement. This is intended to encourage compliance and deter breaches of the agreement.The 2nd Reading Speech in the Lower House states, in part
There is an increasing global focus on protecting Indigenous peoples' vulnerable intangible cultural heritage. The bill places Victoria at the cutting edge in Australia in this area.
Victoria's rich Aboriginal culture has significantly shaped our values and traditions — from our music, art and stories to environmental management practices and even the development of Australian Rules football. The influence of Aboriginal culture on Victorian society has not been properly acknowledged in our past, and it is important we recognise its value in the future.
Aboriginal intangible heritage is not protected adequately by current intellectual property laws, patent laws or copyright laws. Stories, songs, dances, language, manufacturing techniques and knowledge about the properties and management of plants and animals are central to traditional owner culture and wellbeing, and deserve proper statutory protection as part of the cultural heritage of Victorian traditional owners.
The bill provides a process for registered Aboriginal parties and other eligible traditional owner organisations to nominate particular intangible heritage for registration. Once registered, anyone wishing to use that intangible heritage for their own purposes will require a formal agreement with the relevant traditional owner organisation.
The revolutionary Aboriginal intangible heritage amendments in the bill will create new opportunities for economically beneficial partnerships between Aboriginal people and industry, promote new Aboriginal industries and advance reconciliation and self-determination. This will significantly increase respect for Aboriginal culture and traditional knowledge and provide opportunities for it to be appropriately shared and celebrated. It will finally place traditional owners in the driving seat and able to control how their traditional knowledge is used by the broader community and industry.Perspectives are provided in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar, 2015).
