A shipwreck in shallow water near a sandbar, beneath a light blue sky. Most of the upper half of the shipwreck is exposed to the air above the water's surface.

 

 

Review of the Maritime Archaeology Act 1973 Government Agency information fact sheet

 

 

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This fact sheet is intended for Government Agencies. If you require information for non-government organisations, please visit Review of the Maritime Archaeology Act 1973 information fact sheet.

 

Introduction

The Western Australian Government, through the Western Australian Museum (WA Museum) is proposing changes to the Maritime Archaeology Act 1973 (WA) to reflect changes in national legislation and international best practice, and to take account of the changing context of maritime archaeology over the last 50 years.

 

Background

The Maritime Archaeology Act was originally enacted to safeguard the State’s historic shipwrecks and other maritime archaeological sites, and associated materials. 

The Maritime Archaeology Act, in its current form, protects the wrecks and artefacts of historic ships lost before 1900 and maritime archaeological sites associated with a historic ship, in Western Australian State waters. It also protects terrestrial maritime archaeological sites such as jetties and shipwreck survivor camps, vesting them in the Western Australian Museum.

With the subsequent creation of the Commonwealth Historic Shipwrecks Act 1976, the Western Australian Museum also became the delegated authority for the management of Commonwealth historic shipwrecks and relics in Western Australia. These include archaeological materials related to the wrecks of the Dutch East India Company (VOC) ships Batavia (1629), Vergulde Draeck (1656), Zuytdorp (1712) and Zeewijk (1727).  The ‘relics’ associated with the VOC shipwrecks were also the subject of the 1972 Australian Netherlands Committee on Old Dutch Shipwrecks (ANCODS).

The Maritime Archaeology Act was the first legislation in the world specifically enacted to protect maritime archaeological sites and associated artefacts. This positioned Western Australia as the leader in the protection of maritime archaeological sites. However, the Maritime Archaeology Act has now become outdated. International conventions and legislative developments at a national level have resulted in the need to update the Maritime Archaeology Act to ensure a contemporary and consistent approach, and complementary protection for Western Australia’s maritime archaeological sites and artefacts that may be excluded by the Commonwealth legislation.

 

 

International and national developments

There have been several significant international and national developments since the Maritime Archaeology Act’s enactment in 1973, resulting in the Maritime Archaeology Act becoming outdated, and even obsolescent.

The Commonwealth Underwater Cultural Heritage Act (2018) replaced the Historic Shipwrecks Act 1976 in a move to establish relative consistency with the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001 UNESCO Convention), and potentially enable Australia to ratify that convention. The Maritime Archaeology Act is consistent with neither the Underwater Cultural Heritage Act, nor the 2001 UNESCO Convention.  

In 2010 the Australian Underwater Cultural Heritage Intergovernmental Agreement (IGA) was signed by all States, the Northern Territory and the Commonwealth. All parties agreed to ensure State and Territory legislation conformed with minimum requirements and work toward ratification of the 2001 UNESCO Convention. Recently there has been renewed Commonwealth government interest in working toward this ratification, with a “Public Hearing on the Joint Standing Committee on Treaties Convention on the Protection of the Underwater Cultural Heritage” held on 10 February 2023, followed in March 2023 with a recommendation that "The Committee supports the Convention on the Protection of the Underwater Cultural Heritage and recommends that binding treaty action be taken".

 

Addressing outdated parameters

The Maritime Archaeology Act is now 50 years old: its definition of a historic shipwreck, for instance, was a wreck that occurred before 1900.  This fixed date means there is no provision for the protection of wrecks that occur after this date.  The Underwater Cultural Heritage Act has a rolling date for wrecks older than 75 years.  Whether, or not, 75 years is the correct threshold is debatable, however, this does ensure that with the passage of time, more recent wrecks and other underwater cultural heritage can be protected as cultural heritage.

Just as the 1900 threshold date is outmoded, so are the penalties for breaching the Maritime Archaeology Act. In the last 50 years, the value of a dollar is only eight per cent of what it was in 1973.  The Underwater Cultural Heritage Act addresses this by applying ‘Penalty Units’ which can be increased in line with annual CPI.

 

Achieving consistency

There are several areas where the Maritime Archaeology Act is inconsistent with the Underwater Cultural Heritage Act, in addition to those noted immediately above. Furthermore, there are categories of bona fide maritime heritage sites and finds that fall between the acts on the basis of, for instance, geographic definition of State waters.

In addition, the Maritime Archaeology Act may overlap, and in some cases, conflict with other State legislation such as the Biodiversity Conservation Act (2016), the Heritage Act (2018) and the Aboriginal Cultural Heritage Act (2021).

 

The aspiration

The aspiration is to create a new piece of legislation that is fit for purpose in terms of maritime archaeological site protection, and that is harmonised with other relevant legislation.

The modernisation, review and successful amendment of the Maritime Archaeology Act is desirable from a public policy perspective, in terms of strengthened heritage outcomes. It would also meet Western Australia’s commitments under both Australian law and international best practices.  

As noted, it would also remove confusing inconsistencies between the relevant Commonwealth and Western Australian legislation, update temporal and financial parameters, and provide protection for currently unprotected maritime archaeological sites and artefacts.

The process of modernisation will also provide an opportunity to build public awareness of the need to protect maritime archaeological sites and the obligations to do so.

 

Significance of changes to the Maritime Archaeology Act

The proposed changes to the Maritime Archaeology Act 1973 (WA) will contribute to increased identification, registration, and protection of the State’s maritime archaeological sites and artefacts. Under current legislation some maritime archaeological sites are not protected and, in some situations, have been damaged and degraded. The summaries below describe the significance of the proposed changes.

 

Consultation with Government Agencies

To support greater cohesion between the Maritime Archaeology Act and related legislation, a key objective of the consultation with government agencies has been undertaken to ensure that those with overlapping responsibilities for the management of maritime archaeology sites and artefacts (explicitly, or otherwise) have been provided with an opportunity to review their own areas of regulatory responsibility. For example, agencies might assess how they approach planning approvals and reserves management in consideration of a revised Maritime Archaeology Act and current best practice.

Furthermore, Government agencies may have also identified opportunities for partnerships with the WA Museum to provide improved protection for maritime archaeological sites in areas within their jurisdiction.

Another purpose of the consultation was to invite agencies to provide input on matters of importance, or potential impact in relation to proposed amendments to the Maritime Archaeology Act so that these are considered in the drafting of the legislation.

 

Anticipated outcomes

The reforms proposed to the Maritime Archaeology Act are expected to result in the following outcomes:

  • Proposed changes to the Maritime Archaeology Act will, in certain cases, enable developments by permitting development activity subject to a satisfactory heritage outcome being reached. Currently, there is no permit system under the Maritime Archaeology Act.
  • The amendments will bring the Maritime Archaeology Act into line with the Commonwealth Underwater Cultural Heritage Act and legislation in other State jurisdictions. The legislative alignment will facilitate protection and planning around maritime archaeological sites’ values by reducing current inconsistencies and anomalies.
  • Harmonisation of Commonwealth/State and Territory maritime heritage laws will aid public education and understanding of the rules around the protection of maritime archaeological sites.  In this way, it will address outdated parameters relating to the threshold for the designation ‘historic’, as well as update penalties.
  • The changes to the Maritime Archaeology Act will support Australia’s ratification of the 2001 UNESCO Convention and the protection of bona fide maritime archaeological material that may fall between the geographic scope of the State and Commonwealth acts at the present time.

 

Significance of changes to the Maritime Archaeology Act

The proposed changes to the Maritime Archaeology Act will contribute to increased identification, registration, and protection of the State’s maritime cultural heritage. Under current legislation some maritime archaeological sites is not protected and, in some situations, has been damaged and degraded. The summaries below describe the significance of the proposed changes.

1. The existing Maritime Archaeology Actcannot protect underwater cultural heritage, including historic shipwrecks, which occurred later than 1900, and does not align with the Underwater Cultural Heritage Act.

Example: S.S. Colac was wrecked in 1910 and is significant as an important and well-preserved example of a late 19th century steamship. It is one of the two most intact wrecks of this period in the State, due to its location in the protected waters off King Sound, in the Kimberley. Colac is a significant reminder of the region’s dependency on sea transport for early communications. If Colac was wrecked in Commonwealth waters it would automatically be protected by the 75-year rolling date as an historic shipwreck, however as it is in State waters and wrecked after 1900 it cannot be protected as an historic shipwreck. 

An updated Maritime Archaeology Act will have blanket provision for a 75-year rolling date to align with the Commonwealth Underwater Cultural Heritage Act and the 2001 UNESCO Convention 100 year rolling date. For further consistency with the Underwater Cultural Heritage Act, the updated Maritime Archaeology Act will include the possibility to declare maritime archaeological sites historic if ‘younger’ than 75 years old, based on assessment of significance criteria.

2. The existing Maritime Archaeology Act offers inconsistent protection to jetties and maritime infrastructure sites.

Western Australia has many historic underwater or semi-submerged maritime infrastructure sites that should be properly recognised as important maritime archaeological sites. Under the present legislation these sites cannot be protected unless they can be shown to have an association with an historic ship.

Example: The Fraser Island lighthouse was a steel lattice lighthouse built on Fraser Island; a sandy islet 23 feet high in 1936. In 1966 the lighthouse collapsed into the sea when high winds literally blew the sandy island away from underneath it. The structure of the lighthouse remains collapsed in the sea at Point Cloates (Ningaloo). The site is evidence of the way that a terrestrial maritime structure can become a maritime archaeological site, which may in the future be considered worthy of heritage protection, or special declaration. 

An updated Maritime Archaeology Act will automatically protect archaeological remains of maritime infrastructure that have been abandoned for over 75 years, as well as have provision for a special declaration to make it possible to declare maritime archaeological sites historic if ‘younger’ than 75 years old, based on an assessment of significance criteria.

3. The existing Maritime Archaeology Act does not protect submerged aircraft and other sunken vehicles and objects, and therefore does not align with the Commonwealth Underwater Cultural Heritage Act or the 2001 UNESCO Convention.

Example: Several significant World War II flying boat wrecks in Roebuck Bay, Broome, are in Western Australian waters. As they could not be protected either under the Commonwealth Historic Shipwrecks Act 1976 or the State Maritime Archaeology Act 1973, the only way to protect them was to place a Conservation Order over an area of Roebuck Bay under the Heritage of Western Australia Act 1990. This was the first time that the Heritage Act 1990 was used to protect a maritime site (see Heritage Council of WA, March 2003). However, any yet unlocated flying boats in Roebuck Bay or indeed elsewhere in Western Australian waters would not be so protected.  Sunken aircraft in Australian waters are protected under the Underwater Cultural Heritage Act.

An updated Maritime Archaeology Act will automatically protect sunken aircraft and other sunken vehicles and objects over 75 years old to align with the Commonwealth Underwater Cultural Heritage Act and 2001 UNESCO Convention.

4. The existing Maritime Archaeology Act does not protect maritime resource industry sites (e.g. pearling, whaling) with known high archaeological values.

Example: Western Australian sites of archaeological significance relating to maritime resource gathering or extraction industries include guano mining, pearling, whaling, fishing, and sealing sites.  These types of maritime archaeological sites often have an above high-water and below water component. The existing Maritime Archaeology Act makes no mention of these types of sites specifically, relying on the derivation of a site from an historic ship using interpretation of the definitions ‘prior to 1900’, ‘abandoned’ and ‘associated with an historic ship’.

An updated Maritime Archaeology Act will enable historic maritime resource industry sites older than 75 years old to be protected as maritime archaeological sites, subject to a declaration being made to the effect based on their heritage significance. When it is applied, the updated Maritime Archaeology Act can protect both the above and below high-water components of a site. 

5. The existing Maritime Archaeology Act penalties are outdated and do not reflect developments in the Underwater Cultural Heritage Act or other States Acts.

The WA Museum considers that the dollar-based penalties currently contained in the Maritime Archaeology Act are insufficient and obsolete.  

An updated Maritime Archaeology Act 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.

6. The existing Maritime Archaeology Act does not allow for the issuing of permits, with conditions, to disturb sites.

The Underwater Cultural Heritage Act allows a person to apply to the Minister for a permit authorising them to engage in specified conduct relating to specified protected underwater cultural heritage, a specified protected zone and/or specified foreign underwater cultural heritage.

An updated Maritime Archaeology Act will align with the Underwater Cultural Heritage Act and allow for the issuing of permits by the Delegate to disturb underwater cultural heritage/ maritime archaeological sites according to approved conditions being met.

7. The existing Maritime Archaeology Act is not compatible with the Commonwealth Underwater Cultural Heritage Act, recent legislation in other State and Territory jurisdictions, or 2001 UNESCO Convention.

An updated Maritime Archaeology Act will ensure compatibility with the Underwater Cultural Heritage Act, relevant State and Territory legislation, and enable Australian ratification of the 2001 UNESCO Convention.

8. The Maritime Archaeology Act vests maritime archaeological sites in the WA Museum, which is not compliant with current practice in relation to the creation of interests in State land.

The WA Museum does not desire to automatically assume the property in and right to possession of ships and sites through the current Maritime Archaeology Act vesting process. Instead, the WA Museum would like the Minister to have the power to declare that the property in, and right to possession of, specified articles of maritime archaeological sites be vested in the WA Museum in the right of the Crown.

An updated Maritime Archaeology Act will ensure vesting provisions, in relation to land-based sites, are removed and replaced with options of lodging a memorial or creating a reserve.

9. The existing Maritime Archaeology Act is unclear about the extent of waters it applies to.

Example: The shipwreck Elvie wrecked in 1921 at Frenchmans Bay, Albany is currently unable to be protected by the Underwater Cultural Heritage Act or the Maritime Archaeology Act. As Elvie has been determined to lie within State waters, the State Act cannot protect the site because it can only protect historic ships wrecked in WA State waters before 1900. Ascertaining jurisdictional boundaries of State waters can be a legally complex issue involving constitutional law decisions extending back to 1901, when Australia became a Federation.

An updated Maritime Archaeology Act will align with modern/current definitions of State Coastal, Commonwealth, Australian and inland waters. It will clearly define its scope to the relevant State waters to align with the Commonwealth Underwater Cultural Heritage Act and remove any confusion over jurisdictional discrepancies where there may be a lack of clarity over Commonwealth/ State jurisdiction.

10. The existing Maritime Archaeology Act does not currently require registration of maritime archaeological sites and artefacts from sites that will be protected by the proposed 75 year rolling date, or if younger, by ministerial declaration.

An updated Maritime Archaeology Act will align with the Underwater Cultural Heritage Act and 2001 UNESCO Convention through the establishment of a Register of maritime archaeological sites protected by the 75-year rolling date, or if younger, by Ministerial declaration. 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. This will be subject to registration of the material during a specified period following the new legislation’s introduction, as prescribed by Ministerial regulation. A register with statutory backing would be a transparent database of all things vested under and protected by the Act and would assist the WA Museum and the public in identifying and administering maritime archaeological sites. The register will be an extension of the current Shipwrecks Register. A register of maritime archaeological sites and artefacts would also help clarify the distinction between the scope of coverage of the Maritime Archaeology Act and the Underwater Cultural Heritage Act. Personal contact details will be collected but will not be publicly available and will be secured in a separate, confidential database.

If you require further information or updates on the review of the Maritime Archaeology act, please email  ma.review.consult@museum.wa.gov.au.