The discussion which follows is based on the South Australian state legislation. It is important to be aware that there is also Commonwealth legislation dealing with Aboriginal heritage called the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). This Commonwealth Act contains some similar but not identical provisions to the State Act. It does not, for instance, provide for a Register and the provision relating to protection of items where they are found [s 20] applies only to Aboriginal remains.
However, because the Commonwealth has power over Aboriginal affairs under the so-called "race power" under the Constitution, a provision or even any ministerial act under the Commonwealth Act would take precedence over the State Act and its procedures. This was one of the legal issues involved in the dispute over the Hindmarsh Island (Kumarangk) Bridge.
In most cases however, the Commonwealth policy has been to allow state legislation and policy to apply without interference, as long as the Commonwealth thinks the state's general provisions are sound and in accordance with appropriate Aboriginal affairs policy and international obligations (eg., human rights and environmental obligations). This is generally seen to be the case with the South Australian legislation. The South Australian Aboriginal Heritage Act 1988 (SA) protects and preserves Aboriginal heritage within the State.
The Aboriginal Heritage Act 1988 (SA) establishes an Aboriginal Heritage Committee comprised of Aboriginal people from all parts of the State. This Committee advises the Minister on making entries in central archives, on measures that should be taken to protect or preserve Aboriginal sites, objects or remains, on the appointment of inspectors and on the administration of the Act and the protection and preservation of Aboriginal heritage.
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