Review of the Maritime Archaeology Act

The Maritime Archaeology Act 1973 (WA) protects the wrecks and artefacts of historic ships lost prior to 1900, and maritime archaeological sites associated with a historic ship, in Western Australian State waters. It also protects terrestrial maritime archaeological sites such as shipwreck survivor camps.

Western Australian State waters include Coastal Waters and Internal State Waters:

Coastal Waters include: a) waters within the first three nautical miles from the shore (measured from the Lowest Astronomical Tide mark) or Territorial Sea Baseline, and b) waters landward of the Territorial Sea Baseline adjacent to the shore.

Internal State Waters include estuaries, rivers and lakes.

The management of State waters and any maritime archaeological sites they contain—with the exception of historic shipwrecks, and articles associated with historic ships or shipwrecks located in Coastal Waters that are protected by the Commonwealth Underwater Cultural Heritage Act 2018—is the responsibility of the State.  

Commonwealth Waters includes waters outside Coastal Waters to the edge of the Continental Shelf, and their management is the responsibility of the Commonwealth.

Australian Waters is a term used to describe the combination of State Coastal Waters and Commonwealth Waters.

A detailed explanation of Australia’s maritime boundaries can be found at Geoscience Australia’s website: https://www.ga.gov.au/scientific-topics/marine/jurisdiction/maritime-boundary-definitions

The Maritime Archaeology Act 1973 (WA)has become outdated due to the legislative developments of the 2018 Underwater Cultural Heritage Act, and it is not consistent with the protections offered by the 2001 United Nations Convention on the Protection of the Underwater Cultural Heritage. The review and successful amendment of the Maritime Archaeology Act 1973 (WA) is desirable from both a public policy perspective and would meet Western Australia’s commitments under both Australian and international law.  It would also remove confusing inconsistencies between the relevant Commonwealth and WA legislation and aid public education about, and enforcement of, protections for maritime archaeological sites.

The Commonwealth Underwater Cultural Heritage Act replaced the Historic Shipwrecks Act 1976 to strengthen and expand the protection of underwater cultural heritage in Commonwealth and Australian waters. The Underwater Cultural Heritage Act automatically protects historic shipwrecks and sunken aircraft over 75 years old, along with their associated artefacts, and allows the protection of other types of underwater cultural heritage by Ministerial declaration.

The 2001 UNESCO convention offers States Parties ‘common principles’ on safeguarding the underwater cultural heritage of humanity. Australia is not yet a State Party to the convention and progress toward ratification is contingent on all States and Territories updating legislation to reflect the intent of the convention. Underwater cultural heritage is defined as ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years.’

A maritime archaeological site will mean a site which contains any trace of human existence that has a cultural, historical or archaeological character; that has been situated on or within the land, or is situated partially or totally, whether periodically or continuously, underwater for at least 75 years or specially declared by the Minister and does not have cultural heritage significance solely on account of its connection with Aboriginal tradition or culture.

For the purpose of this definition, maritime archaeological sites may be:

1. underwater cultural heritage, or
2. terrestrial archaeological sites.

Underwater cultural heritage means any trace of human existence that has a cultural, historical, or archaeological character and is situated partially or totally, and whether periodically or continuously underwater for at least 75 years, or specially declared by the Minister. For this definition, a "trace of human existence" includes:

1. sites, structures, artefacts and human and animal remains, together with their archaeological and natural context; and
2. vessels, aircraft and other vehicles or any part thereof, together with their archaeological and natural context; and
3. artefacts associated with vessels, aircraft, or other vehicles, together with their archaeological and natural context; and
4. abandoned cables and pipelines.

Terrestrial archaeological site means any trace of human existence that has a cultural, historical or archaeological character and is associated with a vessel that was navigated, lost, wrecked, abandoned or stranded on or off the Western Australian coast. For this definition, a "trace of human existence" includes:

1. sites, camps, fortifications, structures, artefacts and human and animal remains, together with their archaeological and natural context; and
2. vessels or any part thereof, together with their archaeological and natural context; and
3. artefacts associated with vessels, together with their archaeological and natural context; and

Vessel means any kind of vessel used in navigation by water, however propelled or moved that was navigated, lost, wrecked, stranded or abandoned, on or off the coast of Western Australia more than 75 years ago, or specially declared by the Minister;

Artefact means anything of historic interest that appears to have formed part of, or to have been carried by or derived from or associated with any maritime archaeological site, or to have been constructed, modified, or used by any person associated with any such maritime archaeological site.

As the Maritime Archaeology Act currently stands aircraft, vehicle or parts of vehicles that are submerged in WA state waters cannot be protected, neither are they protected by the Underwater Cultural Heritage Act. Under a revised Maritime Archaeology Act these will be protected if the objects have been submerged for 75 years or over.

The current Maritime Archaeology Act 1973 (WA) cannot protect maritime archaeological sites (including shipwrecks) that occurred after 1900 and does not align with the Commonwealth Underwater Cultural Heritage Act or the 2001 UNESCO Convention. The updated Maritime Archaeology Act will have a blanket 75 year rolling date to match the Underwater Cultural Heritage Act and align more closely with the UNESCO Convention’s 100 year rolling date.

The dollar-based penalties currently contained in the Maritime Archaeology Act are insufficient and obsolete. The updated Maritime Archaeology Act will enable fines and civil penalties to reflect current infringement penalties using penalty units as occurs with the WA Heritage Act (2018) and facilitates the issuing of infringement notices. This would also prevent the need to amend the Maritime Archaeology Act every time penalties are increased, and the Maritime Archaeology Act would then be consistent with State legislation and practice.

While in situ (where the wreck or artefact is found) preservation is usually considered as the first (but not necessarily the preferred) treatment option for a maritime archaeological site, it is often the case that maritime archaeological sites need to be disturbed or moved to make way for modern developments. Where in situ preservation of a maritime archaeological site is not possible for economic or social reasons, a revised Maritime Archaeology Act will allow site disturbance subject to permit conditions for archaeological recording and conservation conditions being met. This would mean that responsible development proposals are not unduly hindered, and a balance can be struck between development proposals and the protection of a site’s heritage values.

A revised Maritime Archaeology Act will allow persons who would have been entitled to ownership of, or any interest in, maritime archaeological sites (if not previously declared as vested in the WA Museum) to be allowed to continue to enjoy custodial rights in relation to the artefact, subject to registration of the material during a specified period following the new legislation’s introduction, as prescribed by Ministerial regulation. The register for maritime archaeological sites and artefacts will be an extension of the existing shipwrecks register. Personal contact details will be collected; however, these will not be publicly available and will be secured in a separate, confidential database.