Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Circulated by authority of the Minister for the Environment
and Heritage, Senator the Hon. Robert
Hill
ISBN: 0642 463913
The objects of this Bill are:
• To establish a Commonwealth
heritage regime that will focus on matters of national significance and
Commonwealth responsibility;
• To list places of national heritage
significance in a National Heritage List using a process of community
consultation, expert advice and ministerial responsibility;
• To
protect and manage places in the National Heritage List;
• To list
places in Commonwealth areas with heritage significance in a Commonwealth
Heritage List using a process of community consultation, expert advice and
ministerial responsibility;
• To advise Commonwealth agencies on
actions in relation to places in the Commonwealth heritage list;
and
• To provide for the management of places in the Commonwealth
Heritage List.
The Bill comprises three schedules, two of which amend the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC
Act).
National List (Schedule 1)
The Minister may only include a place in the National Heritage List if
satisfied that the place has one or more national heritage values. The Minister
may ask the Australian Heritage Council, an expert heritage advisory body, for
an assessment of the place’s national heritage values and invite public
comments on the inclusion of the place in the National Heritage List.
The
Minister must make plans for managing national heritage places that are entirely
within Commonwealth areas and the Commonwealth must try to prepare and implement
plans for managing other national heritage places, in cooperation with the
States and self-governing Territories.
The Commonwealth can provide
assistance for the identification, promotion, protection or conservation of
national heritage places.
Commonwealth List (Schedule
1)
The Bill requires that a Commonwealth agency must ask the Minister
for advice before taking an action that has, will have or is likely to have a
significant impact on a Commonwealth heritage place. However the agency is not
required to ask the Minister’s advice if the proposed action is taken in
accordance with a management plan accredited by the Minister.
The
Minister may only include a place in the Commonwealth Heritage List if the place
is in a Commonwealth area and the Minister is satisfied that the place has one
or more Commonwealth heritage values. The Minister may ask the Australian
Heritage Council, an expert heritage advisory body, for an assessment of the
place’s Commonwealth heritage values and invite public comments on the
inclusion of the place in the Commonwealth Heritage List.
Commonwealth
agencies must make plans for managing Commonwealth heritage places.
The
Commonwealth can provide assistance for the identification, promotion,
protection or conservation of Commonwealth heritage places.
The Commonwealth may provide financial or other assistance.
Indigenous advice (Schedule 2)
The Bill provides for the
Australian Heritage Council to obtain advice from the Director of Indigenous
Heritage Protection on a place’s indigenous heritage
values.
Register of the National Estate (Schedule 3)
Places
on the Register of the National Estate that are wholly within a Commonwealth
area may be taken to be included in the Commonwealth Heritage List if the
Minister so determines within 6 months of the new regime
commencing.
Acts replaced
The Bill is presented in
conjunction with the Australian Heritage Council Bill 2000; together the Bills
replace the Australian Heritage Commission Act 1975.
FINANCIAL IMPACT STATEMENT
The Environment and Heritage Legislation Amendment Bill (No.2) 2000,
along with the Australian Heritage Council Bill 2000, will not cost the
Commonwealth more than the existing legislative arrangements being
replaced.
REGULATION IMPACT STATEMENT
Duplication
The Commonwealth’s existing heritage
conservation regime is now seriously outdated and subject to significant
limitations. Under the Australian Heritage Commission Act 1975 (AHC Act),
over 13, 000 places are listed on the Register of the National Estate. Some of
these places are of national significance but many would properly be regarded as
places of State or local significance. Therefore, the Commonwealth is often
involved in matters that are not appropriately the responsibility of a national
government. As a result, the current regime is characterised by unnecessary
inter-governmental duplication which causes uncertainty and delay for
business/industry.
It is also important to recognise that the AHC Act
provides no substantive protection for heritage places of national significance.
The limited procedural safeguards included in the AHC Act fall well short of
contemporary best practice in heritage conservation.
The deficiencies in
the existing regime can be summarised as follows:
• a lack of an
overarching national heritage policy on one hand and, on the other hand a
Commonwealth heritage regime that was involved, in great detail, at a local and
State level;
• a heritage register with over 13,000 items listed and
some 7,000 items nominated for listing;
• duplication in heritage laws
and processes between the Commonwealth, States/Territories and local
government;
• the Commonwealth being repeatedly involved in heritage
protection controversies that were more properly the responsibility of the
States and local government;
• community confusion about the various
heritage regimes and lists in operation; and
• a lack of real
protection for nationally important heritage places.
i. Government roles and responsibilities
The Commonwealth regime was established by the AHC Act in 1975. At that
time, it was Australia’s only heritage protection statute. Now all States
and Territories have heritage protection legislation and many local government
bodies identify and protect heritage in local planning instruments. The
Commonwealth’s listing of places has now been widely duplicated in State
and local lists with the result that different pieces of protection and planning
law can apply to one site.
The Council of Australian Governments (COAG)
(1997 Agreement, section 6) agreed on the need for the rationalisation of
existing Commonwealth/State arrangements for the identification, protection and
management of places of heritage significance. COAG accepted that the
Commonwealth’s role should focus on the protection of places of national
heritage significance and ensure Commonwealth compliance with State heritage and
planning laws.
Implementation of the strategy envisaged by COAG was
subject to widespread consultation through 1998 and 1999. It is now proposed
that the Commonwealth take action to recognise the roles and responsibilities of
the Commonwealth and the States consistent with the COAG
Agreement.
ii. Listing processes
The Commonwealth, States,
Territories and many non-government and independent organisations maintain lists
of heritage places for statutory and non-statutory purposes. Multiple listing
has generated confusion in the community about the implications of listing and
the relationships between registers.
At the Commonwealth level, the
Register of the National Estate (RNE) is a statutory list covering natural and
cultural heritage places. It includes places significant at the national, State
and local level. However, the RNE does not differentiate between the different
levels of significance, and it is sometimes confused with other lists, including
the World Heritage List, Ramsar list, State lists, and National Trust
registers.
Approval processes related to a place that is listed on more
than one statutory list and involving more than one regulatory authority can
result in unnecessary delays, costs and uncertainty for both industry and the
community.
iii. National Heritage List
The RNE contains
places of all levels of significance but does not differentiate between them.
COAG (1997) agreed to the establishment of a list of places of national heritage
significance and accepted that this be a further matter of national
environmental significance. The EPBC Act provides a framework for the
protection of matters of national environmental significance.
It is now
proposed that the identification and protection of sites of national heritage
significance be included as a matter of national environmental significance in
that Act. Other matters of national environment significance, as identified by
COAG, are already recognised in the EPBC Act framework.
The COAG move to rationalise existing Commonwealth/State heritage
management arrangements cannot be implemented without Commonwealth legislative
change. The operation of the AHC Act duplicates State responsibilities and
fails to provide substantive protection for heritage places of national
significance. In addition, the AHC Act does not provide for the identification
of places of national heritage significance as envisaged by COAG. Legislation
is required to address these two elements.
• To assign responsibility for identifying, protecting and managing
heritage places to the appropriate level of government;
• To ensure
that heritage management systems are compatible, complementary and streamlined
across all levels of government to minimise duplication and provide certainty to
property owners, decision makers and the community;
• To ensure that
nationally significant heritage places are identified and protected;
and
• To facilitate the protection of places of heritage significance
on Commonwealth land (other than sites of national significance).
Is there a regulation/policy currently in place? Who administers
it?
This amendment bill is designed to replace the AHC Act which is
administered by the Department of the Environment and Heritage.
The
authority for the establishment of a National Heritage List arises from the
following:
(i) The 1997 Council of Australian Governments Heads of
Agreement on Commonwealth/State Roles and Responsibilities for the
Environment which agreed to:
‘the rationalisation of the
existing Commonwealth/State arrangements for the identification, protection and
management of places of heritage significance through the development...of a
co-operative national heritage places strategy which will....provide for the
establishment of a list of places of national heritage
significance.’
(ii) The Consultation Paper on the Reform of
Commonwealth Environment Legislation issued by the Minister in 1998 which
stated that:
‘The National Strategy should provide for the
preparation of a national list of heritage places of exceptional value and
importance to the nation as a whole.’ (p.35)
(iii) Coalition
election policy Our Living Heritage (1998):
‘Support the
establishment of a national list of heritage places for which the Commonwealth
will have protective powers.’ (p.58)
(iv) The National Strategy
for Australia’s Heritage Places: A Commonwealth Consultation Paper,
issued by the Minister in 1999, which stated that the Commonwealth, in
partnership with the States, would:
‘Identify and maintain a
comprehensive list of places of national significance through a
legislatively-defined process’ (p.11)
OPTIONS
The
only options available to the Government are: (i) to continue with the existing
Commonwealth/State heritage regimes (which fails to give effect to the COAG
Agreement) or (ii) to implement the COAG Agreement through the reform of
Commonwealth heritage legislation.
Changes to the legislation will affect
government, business, and the community to varying degrees. The most
significant regulatory impacts would arise from changes to the
Commonwealth’s heritage assessment and approvals regime.
In reforming its heritage legislation, the Government can do one of two
things: (i) amend the AHC Act or (ii) incorporate a new heritage regime into the
existing EPBC Act.
The required amendments to the AHC Act would be extensive. It would be
necessary to establish a substantive protection regime, prescribe an approval
process for proposed actions, a framework for entering into bilateral and other
agreements, the establishment of different levels of assessment and a process
for the establishment of management plans. To follow this route would,
therefore, involve extensive changes to the older legislation and could lead to
duplication of processes. It would, in particular, require duplicating the
existing EPBC Act framework. This would be contrary to COAG’s commitment
to reduce such duplication in Commonwealth/State environmental responsibilities
and to increase stakeholder certainty in approvals
processes.
Incorporating a heritage protection regime within the EPBC
Act would be legislatively simpler. All it would require is the inclusion
of heritage as an additional matter of national environmental
significance (Part 3). The Government’s objectives would then be met
by relying on the protection framework already established in the EPBC Act.
This approach would also be in keeping with COAG’s desire to simplify the
assessment of nationally-significant heritage matters and to provide a robust
framework for Federal-State cooperation on environmental
matters.
Features common to both legislative approaches
include:
• Limiting Commonwealth involvement in heritage assessment
and approval processes to those heritage matters of national
significance;
• Proponents will be able to initiate the triggering
process in the Act;
• Decisions on Commonwealth involvement will be
made early in the process and will be binding;
• A transparent
legislative mechanism for the accreditation of State assessment processes and,
in some cases, State decisions will be adopted. The goal will be to maximise
reliance on State processes which meet appropriate standards. Bilateral
agreements will provide for Commonwealth accreditation of State processes and,
in appropriate cases, State decisions (for example, decisions under agreed
management plans). Accordingly, bilateral agreements will allow the Commonwealth
to accredit State systems which meet specified criteria. The Bill contains
provisions to ensure that the level of protection afforded by State processes
must be at least equivalent to that provided by Commonwealth processes; and
IMPACT ANALYSIS
Who is affected by the problem, and who
is likely to be affected by its proposed solutions?
The main parties
affected by the problem and its proposed solutions are the Commonwealth, States
and Territories, and industry.
The community will also be affected by
changes in the management of the heritage environment to the extent that roles
and responsibilities will be clearly established, including the recognition that
the Commonwealth’s role should focus on places of national heritage
significance.
Identify and categorise the expected impacts of the
proposed options as likely benefits, or likely costs. Determine which groups are
likely to experience these benefits and costs.
Option 1: Status
quo
Benefits
The heritage stakeholder community has a
strong historical attachment to the Register of the National Estate. These
stakeholders will be able to maintain that attachment to the
Register.
Costs
The main costs to the community, if the
status quo is maintained, is that heritage places of national significance will
not enjoy any substantive protection under Commonwealth law.
The main
costs to the Commonwealth are:
• unnecessary duplication of State
assessment and approval processes will continue;
• the Commonwealth
will continue to assesses matters that are of State and local heritage
significance only;
• some proposals affecting matters of genuine
national heritage significance will continue to escape Commonwealth assessment
and approval; and
• the potential for expensive and protracted
involvement in State resource management issues where RNE places are involved.
The main costs to the States arise from:
• continuing
unnecessary duplication of Commonwealth assessment and approval processes;
and
• uncertainty about whether and when the Commonwealth will become
involved in environmental assessment and approval and the resulting high cost of
managing inquiries and debates when the Commonwealth does become
involved.
The main costs to industry are:
• some proposals will
continue to be unnecessarily subject to both Commonwealth and State assessment
and approvals;
• continuing uncertainty about whether Commonwealth
assessment and approval processes are triggered, and associated delays in
assessment;
• continuing delays owing to Commonwealth assessment and
approval processes being triggered late in the development process;
and
• the expense and delay of often being involved in major land use
debates and inquiries triggered by the referral process involving places on the
RNE.
Option 2: Reform of Commonwealth heritage
legislation
Benefits
The main benefits to the
Commonwealth are:
• improved efficiency and transparency in decision
making on heritage matters involving the Commonwealth and the
States;
• more focused Commonwealth involvement in heritage issues
based on matters of national significance, which will lead to better use of
Commonwealth resources and improved environmental outcomes;
• the
removal of unnecessary duplication of heritage assessment and approval processes
through the framework for accreditation of State processes and
decisions;
• Commonwealth’s level of involvement determined early
in an assessment and approvals process;
• removal of existing indirect
triggers will remove the obligation (and costs) of Commonwealth Ministers and
Departments requiring impact assessment for matters that are of State or local
significance only;
• opportunities for coordinating and streamlining
Commonwealth decision making on heritage matters involving the
States;
• clear Commonwealth role in heritage matters and clear
arrangements for determining whether matters of national heritage significance
exist;
• the total cost of assessments and approvals processes to the
Government sector will be reduced, because duplications and inefficiencies are
being eliminated, particularly through accreditation and bilateral agreements;
and
• use of bilateral agreements, conservation agreements and other
instruments to encourage a focus on long-term planning and
monitoring.
The main benefits to States are:
• recognition that
heritage matters of State or local significance will be dealt with by the
States, together with greater certainty of Commonwealth responsibilities and
involvement in heritage issues based on matters of national
significance;
• Commonwealth will no longer be involved in heritage
matters that are of only State or local significance;
• improved
efficiency and transparency in decision making on heritage matters involving the
Commonwealth and the States with mechanisms that involve the States in decision
making;
• clear arrangements for determining whether matters of
national heritage significance exist; and
• removal of unnecessary
duplication of Commonwealth environmental assessment and approval processes
through streamlined accreditation arrangements.
The main benefits to
industry are:
• greater certainty of Commonwealth and State roles,
responsibilities and processes relating to the environment, particularly
Commonwealth involvement in heritage issues;
• simplified and clearer
framework in which industry can pursue proposals requiring development
approval;
• a framework for improved accreditation arrangements whereby
only one government heritage assessment and approval process will be applied to
an activity or proposal - the government best placed to undertake an assessment
will do so with unnecessary duplication removed;
• a framework for
integrated Commonwealth and State processes and improved public interfaces for
dealing with activities and proposals involving matters of national heritage
significance;
• environmental and development approvals that are not of
national heritage significance will be considered in accordance with State
environmental and planning processes (unless the action is being undertaken by
the Commonwealth or is in a Commonwealth area);
• the delay,
uncertainty and inefficiency associated with indirect triggers for Commonwealth
assessments will be eliminated;
• the legislation will require an
early, binding decision by the Commonwealth on whether its assessment process
will apply;
• there will be set timeframes within which decisions must
be made; and
• the increased use of voluntary conservation agreements,
which allow a flexible approach to conserving heritage on private
land.
The main benefits to the community are:
• enhanced
protection of heritage places especially heritage places of national
significance, with potential benefits such as better environmental and social
outcomes; and
• while the Bill retains current opportunities for
community input to heritage assessments and approvals, earlier triggering and a
more certain process with explicit time-lines will ensure that community comment
is considered earlier in the development process, and is therefore more
effective. Decisions will continue to be transparent, and information will
continue to be available to the public.
Costs
Most of the
costs of the revised assessment processes will be borne by Government, and will
arise from the need to revise regulations and procedures, and negotiate and
implement bilateral agreements. To some degree, these costs are being incurred
now by the commencement of the EPBC Act, and by including heritage as a matter
of national environmental significance, the Government is able to minimise any
additional administrative costs arising from its proposed changes to heritage
assessment processes. Indeed, the Government expects that the costs of the
administration of the proposed regime will be met from the resources redirected
from the administration of the AHC Act.
Minor costs to industry will
result from the need to become familiar with the new procedures and train staff
to comply with them. But as industry will, in any event, have to become familiar
with the assessment provisions of the EPBC Act, the additional compliance costs
associated with making heritage a matter of national environmental significance
under that Act should be insignificant.
The inclusion of heritage as a
specific obligation under the EPBC Act framework will clarify the somewhat
unclear heritage protection obligations which currently exist and should also
help minimise overall administrative and compliance costs.
Total costs
associated with the operation of Commonwealth involvement in State heritage
matters are expected to be significantly reduced as the Commonwealth will no
longer be involved in matters that are the proper responsibility of the
States.
CONSULTATION
The Review of Commonwealth-State Roles
and Responsibilities for the Environment involved extensive consultation between
the Commonwealth, States, Territories, and the Australian Local Government
Association. The Review also involved consultation with relevant Ministerial
Councils and non-government organisations. In December 1996 the views of key
non-government organisations on a consultation paper were sought. Submissions
from these organisations were considered by the senior level Working Group
conducting the review, which also held discussions with representatives of key
community organisations.
The consultation process included national
workshops on technical issues, the release of discussion documents, the holding
of the 1998 National Heritage Convention (facilitated by the Australian Heritage
Commission) and entering into detailed discussions with the States and
Territories at a Ministerial and senior officials level.
Consultation on
the reform of Commonwealth heritage legislation was primarily through Senator
Hill’s Consultation Paper on the Reform of Commonwealth Environment
Legislation (1998) and the National Strategy for Australia’s
Heritage Places: A Commonwealth Consultation Paper issued by the Minister in
April 1999.
Who are the main affected parties? What are the views of
those parties?
The main affected parties and their views are:
There was acceptance, by the States and Territories, of a number of key
issues:
• the heritage roles and responsibilities of
Governments;
• the managed discontinuation of the Register of the
National Estate as a trigger for Commonwealth statutory
processes;
• the process for listing of places of national heritage
significance; and
• the principle that the national list should aim to
establish the truly outstanding places of national heritage
significance.
Agreement could not be reached on:
• the
referral of State powers to the Commonwealth to enable the full protection of
nationally listed places;
• the request by States for a veto on the
nomination of a place for national listing; and
• the development of
common heritage protection standards.
Industry
Industry
generally supports the substance of the proposed reforms, particularly the
clarification of Commonwealth and State roles and responsibilities, the
efficiencies that will be gained through the streamlining of the environmental
assessment and approvals processes, and the simplification of the regulatory
regime. Industry notes that the precise benefits of the reforms will, to some
extent, depend upon implementation of accreditation arrangements and bilateral
agreements between the Commonwealth and individual States and
Territories.
Conservation organisations
Conservation groups are
concerned that accreditation of State and Territory processes may reduce the
overall level of protection for the environment. There is also concern that
approaches such as the use of bilateral agreements should be transparent, and
provide scope for public involvement. Conservation organisations generally
support the suggested reforms relating to an integrated approach to the
conservation of heritage. There was some general concern from conservation
groups regarding any possible erosion of the independence of the Australian
Heritage Commission.
Repealing the AHC Act and amending the EPBC Act to provide for the
establishment, by the Minister, of a list of places of national heritage
significance is the preferred option because it will:
• implement the
Heads of Agreement on Commonwealth/State Roles and Responsibility for the
Environment;
• focus Commonwealth involvement in heritage matters of
national significance and eliminate the need for Commonwealth involvement in
matters which are properly the responsibility of State or local governments;
• deliver significant ongoing benefits to the Commonwealth, States and
Territories, and industry, particularly in terms of more streamlined and
efficient heritage assessment and approvals processes; and
• implement
the Government’s election policy commitments in relation to
heritage.
Heritage assessment and approval procedures will be simplified
and streamlined. Circumstances under which Commonwealth processes are triggered
will be much clearer than at present, and clear time-lines will also be set
out.
Consultation with business/industry demonstrates support for, and
understanding of, the proposed changes.
Use of the EPBC Act ensures that
existing protection measures and processes are utilised for heritage protection
rather than alternative and potentially contradicting regimes.
The
proposed amendments are also likely to reduce compliance costs for business and
for non-government organisations.
IMPLEMENTATION AND
REVIEW
It is envisaged that the amendment Bill will be introduced
into the Spring 2000 session of the Federal Parliament. In view of the
parliamentary processes that need to be observed, including the likely referral
of the Bill to a Committee, it is expected that the new amendments will enter
into force towards the end of 2001. Thereafter, the Government will monitor the
operation of the amendments on an on-going basis.
1 This item provides for the Act to be cited as the Environment and
Heritage Legislation Act (No.2) 2000.
2 This item provides that the Act will commence on the day on which it
receives Royal Assent. Schedule 2 commences when the Director of Indigenous
Heritage Protection is established under the Aboriginal and Torres Strait
Islander Heritage Protection Act 2000 if that Act occurs after Schedule 1 to
this Act commences.
3 This item sets out the effects of Schedules to this Act.
SCHEDULE
1 – AMENDMENTS RELATING TO THE NATIONAL HERITAGE LIST AND COMMONWEALTH
HERITAGE LIST
Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act)
Item 1 – After
paragraph 3(1)(c)
4 This item amends section 3(1)(c) of the EPBC Act to
include the protection and conservation of heritage in the Objects of the
Act.
Item 2 – After paragraph 3(2)(f)
5 This item amends
section 3(2)(f) of the EPBC Act to recognise that, in order to achieve
its objects, the EPBC Act includes provisions to identify places for the
National Heritage List and the Commonwealth Heritage List and to enhance the
protection, conservation and presentation of those places.
Item 3
– Subsection 12(4)
6 This item amends the EPBC Act so that the
definition of natural and cultural heritage in this instance only applies to
section 12.
Section 15B – Requirement
for approval of activities with a significant impact on a national heritage
place
7 This section provides that a person must not take an action that
has, will have or is likely to have a significant impact on the national
heritage values of a national heritage place except:
i. where a person has
obtained the approval of the Minister for taking the action; or
ii. where a
bilateral agreement provides that the action does not require an approval; or
iii. where a declaration provides that an action does not require an
approval.
8 The section does not apply to actions taken under Regional
Forest Agreements or to authorised actions in the Great Barrier Reef Marine
Park.
9 The section is structured so as to rely upon the available heads
of constitutional powers to the greatest extent possible. Civil penalties apply
for non-compliance.
10 This section mirrors section 15B in regulating actions in relation to
national heritage places. However, it establishes criminal offences in the event
of non-compliance.
Item 5 – Section 34 (after table item
1A)
11 This item adds national heritage values in a national heritage
place as an additional matter protected by a provision of Part 3 (in this case
sections 15B and 15C).
Item 6 – After section
34B
34BA – Declarations relating to national heritage
places
12 This item sets out prerequisites for making declarations in
relation to a national heritage place. The intention of the item is to ensure
that an accredited management plan promotes the management of the place in
accordance with the national heritage management principles.
Item 7
– After section 51
51A – Agreements relating to national
heritage places
13 This item sets out prerequisites for entering into a
bilateral agreement concerning a national heritage place. The intention of the
item is to ensure that a bilateral agreement, and any bilaterally accredited
management plan, promotes the management of the place in accordance with the
national heritage management principles.
Item 8 – Subsection
84(3A)
14 The item provides for the Minister to declare that certain
actions covered by declaration in relation to national heritage places do not
require assessment under this Part.
Item 9 – Chapter 5
(heading)
15 This item amends the heading in Chapter 5 of the
Act.
Items 10 to 20 – Conservation agreements
16 These
items will provide for the Minister to be able to enter into conservation
agreements to enhance the conservation of heritage places.
Item 21
– At the end of section 323
17 In this instance, the definition of
natural and cultural heritage applies only to section 323.
Item 22
– After Division 1 of Part 15
Section 324A –
Simplified outline of this Division
18 This item provides a simplified
outline of Division 1A.
Section 324B – The National Heritage
List
19 This section sets out how a National Heritage List is
established, what it must specify and how it may be kept.
20 The Minister
may include a place in the National Heritage List if satisfied that the place
has one or more national heritage values. The Minister has discretion as to
whether to include a place with national heritage values in the National
Heritage List.
21 This section also provides a definition of national
heritage place in the Act.
22 This section provides a definition of national heritage values in
the Act. If a place is included in the National Heritage List and national
heritage values for that place are specified in the National Heritage List, that
is conclusive evidence that the place has national heritage values.
23 In
deciding whether a place has national heritage values, the Minister must
consider the criteria in the regulations.
Section 324D –
Nominations of places
24 This section sets out how someone may nominate a
place for the National Heritage List and what must be done with the nomination:
i. the Minister must ask the Australian Heritage Council for an assessment
of the place’s national heritage values; or
ii. the Minister must
advise the person who made the nomination of the Minister’s decision not
to include the place in the National Heritage List.
25 The Minister has
discretion whether to ask the Council for an assessment or whether to decline to
assess the nominated place and so decide not to enter the place on the National
Heritage List.
26 The section also provides for the Minister to invite
nominations of places within a specified national heritage theme. The intention
here is to provide an opportunity for broad community involvement and interest
in national heritage.
27 The Council may nominate a place for inclusion
in the National Heritage List.
Section 324E – Emergency
Listing
28 Where the Minister considers that a place has one or more
national heritage values and one or more of these values are under imminent
threat, the Minister may include the place in the National Heritage List before
obtaining an assessment from the Australian Heritage Council. The Minister must
advise any nominator of the inclusion of the place on the National Heritage List
and publish a notice of the listing in accordance with the
regulations.
29 The section also sets out the period for requesting and
receiving an assessment from the Australian Heritage Council after the place is
entered in the National Heritage List under this provision.
Section
324F – Assessment by the Australian Heritage Council
30 This
section sets out the timeframe for assessments by the Council for both nominated
places (Section 324D) and emergency listing (Section 324E).
31 The
section also sets out with whom the Council must consult in making its
assessment and in what form those assessments must be made.
32 The
Council must only consider matters relating to the place’s national
heritage values when making assessments.
33 A copy of comments received
during the assessment process must be forwarded to the Minister with the
assessment.
34 The Minister can refer an assessment to the Council in the
absence of a nomination.
35 The Council must not undertake assessments in
the absence of a request from the Minister.
Section 324G –
Requirement to invite public comment
36 This section sets out the
requirement for the Minister to invite public comment on the proposed inclusion
of a place in the National Heritage List, stipulating that comments must be in
an approved form and must be provided within a certain time. The section also
sets out when the Minister must publish a notice and what the notice must
include.
37 The period for public comment is set out depending on
whether a place is included in the National Heritage List under an emergency
listing or not.
38 This section also provides an option for the Minister
to ask the Australian Heritage Council or, if required, another person with
appropriate expertise, to undertake an assessment of public comments on the
proposed inclusion of a place in the National Heritage List.
Section
324H – Decision whether to include a place in the National Heritage
List
39 This section sets out what the Minister must do after considering
any comments which comply with section 324G. The Minister may either include a
place in the National Heritage List and publish a notice in accordance with the
regulations or give reasons to the person who nominated the place as to why the
place was not included in the National Heritage List. That is, the Minister has
a broad discretion as to whether to include a place in the National Heritage
List.
40 In the case of a place that was listed on the National Heritage
List under an emergency listing process (Section 324E), the Minister may either
decide that the place should remain on the National Heritage List or decide to
remove the place from the National Heritage List by publishing a notice in the
Gazette. This notice is not a disallowable instrument.
Section 324J
– Removal of places or national heritage values from the National Heritage
List
41 This section sets out the Minister’s obligations where a
place’s national heritage value or values no longer exist:
i. the
Minister can only remove a place if satisfied that the place does not have any
national heritage values;
ii. the Minister can only remove one or more
national heritage values from a place if satisfied the place no longer has the
national heritage value or values.
42 The Minister may also remove a
place from the National Heritage List if satisfied that it is necessary in the
interests of Australia’s defence or security to do so.
43 The
Minister must publish an instrument in the Gazette and that instrument is
disallowable unless the instrument removes the place only because of
Australia’s defence or national security.
Section 324K –
Minister must consider advice of the Australian Heritage
Council
44 Before removing a place from the National Heritage List or
before removing one or more values from a place in the National Heritage List,
the Minister must ask for the advice of the Australian Heritage Council.
However, the Minister is not required to ask and consider the advice of the
Council if the removal is because of Australia’s defence or national
security.
45 This section also sets out the requirements for obtaining
advice from the Council, for how the advice must be prepared and the timeframe
for the Minister’s decision after receiving the advice.
Section
324L – Specifying one or more additional national heritage values for a
national heritage place
46 This section sets out how the Minister can
specify in the National Heritage List one or more additional national heritage
values. The place is treated like a new nomination but only for the specified
additional national heritage values and the original listing of that place is
not affected by the requirements of this section.
Section 324M –
National Heritage List must be publicly available
47 The National
Heritage List must be available on the Internet and must also be available in
hardcopy when requested. The copies must be up-to-date.
Section 324N
– Certain information may be kept confidential
48 This section
provides for the Minister to keep confidential details of places where the
Minister considers that a place may be significantly damaged by having
information disclosed about it publicly. A general description of the place can
be used for publication purposes.
Section 324P – Duty not to
disclose assessments or advice
49 This section specifies that there is a
period in which a Council member must not disclose the advice or any related
information, except for the official purposes of the Council.
Section
324Q – Management plans for national heritage places in Commonwealth
areas
50 This section requires the Minister to prepare management plans
for national heritage places which are completely within Commonwealth areas. The
section sets out the requirements that must be met by such
plans.
Section 324R – Restriction on ability to make
plans
51 This section exempts the Minister from making plans for managing
places in a Commonwealth reserve or in the Territory of Heard and McDonald
Islands. Such places will be covered by other plans.
52 The Commonwealth or a Commonwealth agency must not contravene a plan for
managing a national heritage place under section 324Q.
53 This section allows for multiple plans for national heritage places to
exist in the same document.
54 This section requires the Minister to review plans at least once every 7
years and ensure that the review addresses certain matters.
55 This section provides that the Commonwealth must use its best endeavours
to ensure that management plans not inconsistent with the national heritage
management principles are prepared for national heritage places that lie wholly
or partially within an area under State or Territory jurisdiction.
56 This section provides for national heritage management principles to be
published in the Gazette. The regulations may prescribe obligations to implement
or give effect to the national heritage management principles.
57 This section provides for the on-going protection of the national heritage
values of a national heritage place on Commonwealth land by requiring that such
values are protected by a covenant if the land is sold or let by the
Commonwealth.
58 This section provides for the Commonwealth to give financial or other
assistance to State or Territory governments or another person to help identify,
promote, protect or conserve national heritage places.
59 This item sets out the reviewing and reporting requirements for the
National Heritage List.
Item 23 – After Division 3 of Part
15
Section 341A – Simplified outline of this
Division
60 This item provides a simplified outline of Division
3A.
Section 341B – The Commonwealth Heritage List
61 This
section sets out how a Commonwealth Heritage List is established, what it must
specify and how it may be kept.
62 A place may be included in the
Commonwealth Heritage List if it is entirely within a Commonwealth area and the
Minister is satisfied that the place has one or more Commonwealth heritage
values. The Minister has discretion as to whether to include a place with
Commonwealth heritage values in the Commonwealth Heritage List.
63 This
section also provides a definition of Commonwealth heritage place in the
Act.
64 This section provides a definition of Commonwealth heritage values
in the Act. If a place is included in the Commonwealth Heritage List and
Commonwealth heritage values are specified for that place in the Commonwealth
Heritage List, that is conclusive evidence that the place has Commonwealth
heritage values.
65 In deciding whether a place has Commonwealth heritage
values, the Minister must consider the criteria in the
regulations.
Section 341D – Nominations of places
66 This
section sets out how someone may nominate a place for the Commonwealth Heritage
List and what must be done with the nomination:
i. the Minister must ask the
Australian Heritage Council for an assessment of the place’s Commonwealth
heritage values; or
ii. the Minister must advise the person who made the
nomination of the Minister’s decision not to include the place in the
Commonwealth Heritage List.
67 The Minister has discretion whether to
ask the Council for an assessment or whether to decline to assess a nominated
place and so decide not to enter the place on the Commonwealth Heritage
List.
68 The Council may nominate a place for inclusion in the
Commonwealth Heritage List.
Section 341E – Emergency
Listing
69 Where the Minister considers that a place has one or more
Commonwealth heritage values and one or more of these values are under imminent
threat, the Minister may include the place in the Commonwealth Heritage List
before obtaining an assessment from the Australian Heritage Council. The
Minister must advise any nominator of the inclusion of the place on the
Commonwealth Heritage List and publish a notice of the listing in accordance
with the regulations.
70 The section also sets out the period for
requesting and receiving an assessment from the Australian Heritage Council
after a place is entered in the Commonwealth Heritage List under this provision.
Section 341F – Assessments by the Australian Heritage
Council
71 This section sets out the timeframe for assessments by the
Council for both nominated places (Section 341D) and emergency listing (Section
341E).
72 The section also sets out with whom the Council must consult
in making its assessment and in what form those assessments must be
made.
73 The Council must only consider matters relating to the
place’s Commonwealth heritage values when making assessments.
74 A
copy of comments received during the assessment process must be forwarded to the
Minister with the assessment.
75 The Minister can refer an assessment to
the Council in the absence of a nomination.
76 The Council must not
undertake assessments in the absence of a request from the
Minister.
Section 341G – Requirement to invite public
comments
77 This section sets out the requirement for the Minister to
invite public comment on the proposed inclusion of a place in the Commonwealth
Heritage List, stipulating that comments must be in an approved form and must be
provided within a certain time. The section also sets out when the Minister must
publish a notice and what the notice must include.
78 The period for
public comment is set out depending on whether a place is included in the
Commonwealth Heritage List under an emergency listing or not.
79 This
section also provides an option for the Minister to ask the Australian Heritage
Council or, if required, another person with appropriate expertise, to undertake
an assessment of public comments on the inclusion of a place in the Commonwealth
Heritage List.
Section 341H – Decision whether to include a
place in the Commonwealth Heritage List
80 This section sets out
what the Minister must do after considering any comments which comply with
section 341G. The Minister may either include a place in the Commonwealth
Heritage List and publish a notice in accordance with the regulations or give
reasons to the person who nominated the place as to why the place was not
included in the Commonwealth Heritage List. That is, the Minister has a broad
discretion as to whether to include a place in the Commonwealth Heritage
List.
81 In the case of a place that was listed on the Commonwealth
Heritage List under an emergency listing process (Section 341E), the Minister
may either decide that the place should remain on the Commonwealth Heritage List
or decide to remove the place from the Commonwealth Heritage List by publishing
a notice in the Gazette. This notice is not a disallowable
instrument.
Section 341J – Removal of places from the
Commonwealth Heritage List
82 This section sets out the Minister’s
obligations when removing a place from the Commonwealth Heritage List. The
Minister can only remove a place if satisfied that:
i. it is not entirely
within a Commonwealth area; or
ii. it no longer has any Commonwealth heritage
values; or
iii. it is necessary in the interests of Australia’s defence
or national security to do so.
83 The Minister must publish an instrument
in the Gazette and that instrument is disallowable except with respect to (i)
and (iii) above.
Section 341K – Minister must consider advice of
the Australian Heritage Council
84 Before removing a place from the
Commonwealth Heritage List or before removing one or more values from a place in
the Commonwealth Heritage List, the Minister must ask for the advice of the
Australian Heritage Council. However, the Minister is not required to ask and
consider the advice of the Council if the removal is because of
Australia’s defence or national security or because the place is not
within a Commonwealth area.
85 This section sets out the requirements for
obtaining advice from the Council, for how the advice must be prepared and the
timeframe for the Minister’s decision after receiving the
advice.
Section 341L – Specifying one or more additional
Commonwealth heritage values for a Commonwealth heritage
place
86 This section sets out how the Minister can specify in the
Commonwealth Heritage List one or more additional Commonwealth heritage values.
The place is treated like a new nomination but only for the specified additional
Commonwealth heritage values and the original listing of that place is not
affected by the requirements of this section.
Section 341M –
Commonwealth Heritage List must be publicly available
87 The
Commonwealth Heritage List must be available on the Internet and must also be
available in hardcopy when requested. The copies must be
up-to-date.
Section 341N – Certain information may be kept
confidential
88 This section provides for the Minister to keep
confidential details of places where the Minister considers that a place may be
significantly damaged by having information disclosed about it publicly. A
general description of the place can be used for publication
purposes.
Section 341P – Duty not to disclose assessments or
advice
89 This section specifies that there is a period in which a
Council member must not disclose the advice or any related information, except
for the official purposes of the Council.
Section 341Q –
Management plans for Commonwealth heritage places
90 This section
requires a Commonwealth agency that owns or controls a Commonwealth heritage
place to prepare a plan for managing that place. The section sets out the
requirements that must be met by such plans.
91 A Commonwealth agency
must seek, and take into account, advice from the Minister in relation to
proposed management plans. The Minister, before giving advice, must consult with
the Council.
Section 341R – Accrediting management plans for
Commonwealth heritage places
92 This section provides for the Minister to
accredit management plans that have been prepared by a Commonwealth agency for
Commonwealth heritage places. The Minister may accredit the plan if satisfied
that it adequately provides for the conservation of the Commonwealth heritage
values of the place. The Minister must not accredit the management plan if the
Minister believes it is inconsistent with the Commonwealth heritage management
principles.
Section 341S – Restriction on ability to make
plans
93 This section provides that a Commonwealth agency must not make a
plan for a Commonwealth heritage place that is in a Commonwealth reserve or the
Territory of Heard and McDonald Islands. Such places are covered by other
plans.
94 The Commonwealth or a Commonwealth agency must not contravene a plan for
managing a Commonwealth heritage place under section 341Q.
95 This section allows for multiple plans for Commonwealth heritage places to
exist in the same document.
96 This section requires the Minister to review plans at least once every 7
years and ensure that the review addresses certain matters.
97 This section provides for Commonwealth heritage management principles to
be published in the Gazette. The regulations may prescribe obligations to
implement or give effect to the Commonwealth heritage management principles.
98 This section sets out that Commonwealth agencies must assist the Minister
and the Australian Heritage Council to identify and assess Commonwealth heritage
values in places under their ownership or control.
Section 341Y
– Requirement to ask Minister for advice
99 This section prescribes
that a Commonwealth agency must seek the Minister’s advice before taking
an action that has, will have or is likely to have, a significant impact on a
Commonwealth heritage place. Advice need not be sought if an accredited
management plan is in force for that place and the action is provided for by,
and will be taken in accordance with, the plan.
100 This section provides for the on-going protection of the Commonwealth
heritage values of a Commonwealth heritage place by requiring that such values
are protected by a covenant if the land is sold or let by the
Commonwealth.
101 This section provides for the Commonwealth to give financial or other
assistance to State or Territory governments or another person to help identify,
promote, protect or conserve Commonwealth heritage places.
102 This section sets out the reviewing and reporting requirements for the
Commonwealth Heritage List.
Item 24 – At the end of subsection
367(1)
103 When making a plan for a Commonwealth reserve and the reserve
includes a national heritage place or a Commonwealth heritage place, there is a
requirement to take into account the national heritage management principles or
Commonwealth heritage management principles as the case may be.
Item
25 – Subsection 391(3) (after table item 11)
104 This item refers
to the Minister’s obligation to consider the precautionary principle when
making a plan for managing a national heritage place that is entirely within one
or more Commonwealth areas.
Item 26 – Subsection 391(3) (after
table item 13)
105 This item refers to the Minister’s obligation
to consider the precautionary principle when deciding whether to accredit a plan
for managing a Commonwealth heritage place.
Item 27 –
Subparagraph 495(2)(a)(i)
106 This item provides that the executive
officers of a body corporate will be, in some circumstances, liable for offences
by the body corporate in relation to national heritage places.
§ Australian Heritage
Council
§ Commonwealth Heritage
List
§ Commonwealth heritage management
principles
§ Commonwealth heritage
place
§ cultural heritage (removal of
definition)
§ heritage
value
§ indigenous heritage
value
§ National Heritage
List
§ national heritage management
principles
§ natural heritage (removal of
definition)
§ national heritage
place
§ national heritage
values
§ place
SCHEDULE 2 –
AMENDMENTS RELATING TO THE DIRECTOR OF INDIGENOUS HERITAGE
PROTECTION
Environment Protection and Biodiversity Conservation
Act 1999
Item 1 – After subsection 324F(2)
108
This item provides for the Council to seek the advice of the Director of
Indigenous Heritage Protection on nominations for the National Heritage List
that the Council considers may have indigenous heritage value.
Item 2
– After subsection 341F(2)
109 This item provides for the Council
to seek the advice of the Director of Indigenous Heritage Protection on
nominations for the Commonwealth Heritage List that the Council considers may
have indigenous heritage value.
SCHEDULE 3 – TRANSITIONAL
PROVISION: PLACES INCLUDED IN THE REGISTER OF THE NATIONAL
ESTATE
Item 1 – Places may be taken to be included in the
Commonwealth Heritage List
110 This item provides that the Minister may
determine that places on the Register of the National Estate (including the
Interim List) are to be transferred to the Commonwealth Heritage List without a
formal assessment by the Council. This can occur only within 6 months of the new
regime commencing.