Harming an Aboriginal object is an offence in both NSW and the ACT, and it can apply even if you did not know the object was there. The law rewards looking before you dig: a small, early assessment either clears your site or tells you exactly what approval you need — long before earthworks, programmes and budgets are locked in. The expensive scenario is always the reverse: starting work, hitting something, and stopping.
NSW and the ACT follow two different paths, so it matters which one your site sits in. In NSW, whether you need a full assessment is decided by a due diligence test. In the ACT, an assessment is always required — there is no due diligence shortcut. The two pathways are set out separately below.
In NSW, Aboriginal objects are protected under the National Parks and Wildlife Act 1974, administered by Heritage NSW. The Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (2010) sets out the steps a reasonable person should take to work out whether their activity is likely to harm Aboriginal objects — and following it can provide a defence to the strict-liability harm offence.
In practice, a due diligence assessment looks at:
The assessment ends in one of two outcomes: either Aboriginal objects are unlikely and you may proceed with caution (with the assessment documented), or harm is likely and you move to a full Aboriginal Cultural Heritage Assessment Report (ACHAR) with community consultation, which supports an Aboriginal Heritage Impact Permit (AHIP) application. Separately, your council or the planning pathway (under the Environmental Planning and Assessment Act 1979) may require an assessment as a condition of consent.
This option exists in NSW only. Heavily disturbed urban sites, small low-impact works, or land with a clear history of deep prior disturbance may not require an AHIP — but the due diligence step still applies, and whether disturbance is genuinely sufficient is a judgement for a heritage specialist, not the landowner. Documenting why an assessment isn’t needed is what protects you if an object is later found. “I didn’t think it was likely” is not a defence; a recorded due diligence assessment is. None of this applies in the ACT, where an assessment is always required (see below).
The ACT is different from NSW, and the difference is simple: in the ACT you always need a heritage assessment. There is no due diligence shortcut, and prior ground disturbance does not remove the requirement — an assessment is required regardless of how disturbed the land appears. Aboriginal objects and places are protected under the Heritage Act 2004; the ACT Heritage Council assesses significance and consults the Representative Aboriginal Organisations (RAOs) on Aboriginal heritage; and Aboriginal objects are protected whether or not a place is registered. The practical implication is straightforward: build a full assessment into your ACT project from the start.
Aboriginal heritage is only half the picture. If your site contains, adjoins or affects a heritage-listed building, conservation area, or land with potential historic archaeology, you may also need a Statement of Heritage Impact (and possibly a Section 60 approval) in NSW, or an assessment under the same Heritage Act 2004 in the ACT. The two systems run in parallel and a site can trigger both.
For most projects, an early due diligence assessment is inexpensive certainty. It either clears your site or defines the path — and either way you have a defensible record. The developments that come unstuck are almost always the ones that treated heritage as a box to tick at the end. Ask the question at concept stage, not when the excavator is on site.
General information, current as at 15 June 2026; not legal advice, and not a substitute for a site-specific assessment. NSW is progressing reforms to its Aboriginal cultural heritage framework — we keep our advice current. Contact COLCO for guidance specific to your site.
Yes, in both NSW and the ACT. In NSW it’s an offence under the National Parks and Wildlife Act 1974, whether or not you knew the object was there, and following the Due Diligence Code of Practice (2010) beforehand can provide a defence. In the ACT, Aboriginal objects and places are protected under the Heritage Act 2004 and harming them is likewise an offence. Either way, checking before you disturb the ground is the protection.
These are NSW steps. Due diligence is the first: a desktop and site review to decide whether Aboriginal objects are likely and whether further approval is needed. If harm is likely, the next step is an ACHAR, which includes community consultation and supports an AHIP application. The ACT doesn’t use this two-step model — an assessment is required there in any case.
In NSW, yes — previous disturbance can lower the likelihood of intact objects but doesn’t remove your obligation to check, and a due diligence assessment documents the position either way. In the ACT it’s clearer still: prior development doesn’t remove the requirement, and an assessment is needed regardless.
Yes — always. In the ACT, Aboriginal objects and places are protected under the Heritage Act 2004 and an assessment is required regardless of the land’s condition; there’s no due diligence shortcut as there is in NSW. The ACT Heritage Council assesses significance and consults the Representative Aboriginal Organisations.
Send us your site and what you’re planning, and we’ll tell you what heritage requirements you’re likely to face — before you commit to anything. Canberra-based, servicing the ACT and NSW.
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