AITKIN, Professor Don, AO, Chairman, National Capital Authority

RAKE, Mr Gary, Chief Executive, National Capital Authority

SMITH, Mr Andrew, Chief Planner, National Capital Authority

Committee met at 10:52

CHAIR ( Senator Pratt ): I would like to open this hearing. Could someone from the committee move that media be allowed to film the proceedings today, in accordance with the rules set down for committees, which include not taking footage or still images of members' papers or laptop screens.

Dr LEIGH: So moved.

CHAIR: Thank you, Dr Leigh. I also seek a motion to authorise the publication of submissions received by the committee since the last hearing and that the attachments be received as exhibits to the inquiry. These have been circulated and will be listed in the minutes. Okay, that is so ordered.

This is an important hearing because we are wrapping up today our hearings on the administration of the National Memorials Ordinance. It has been a big week already, with the release of the Hawke review into the National Capital Authority. I am not sure whether all members have had a chance to look at it but it certainly seems like a valuable piece of work. Without pre-empting this committee's findings, it is good to know that many of the issues that are raised within that review are in common with the issues that have been raised before us, even in this more specific inquiry.

Today we are looking at the national memorials process. Earlier this week we had a video link-up with Washington DC and their National Capital Planning Commission. The record of that hearing will be publicly available, once it is finalised by Hansard. People will be aware that we had a couple of earlier hearings.

Without further ado, I welcome representatives of the National Capital Authority. I know that you are well acquainted with this process. Although the committee does not require you to give evidence under oath, I advise you that these hearings are formal proceedings of the parliament and warrant the same respect as the proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. Gentlemen, would you like to make an opening statement?

Prof. Aitkin : Thank you. I will make a short opening statement. I am flanked by experts in process and in design, and questions of detail might best be directed to them. I start with the proposition that commemoration is usually straightforward, but it is not always—and it is very useful to make sure that the processes which govern forms of commemoration are clear, accessible and open to scrutiny by others. They are always about values. When you get into the world of values, you get into the difficulty of the distinction between 'is' statements and 'should' statements, and they abound in all of this. There is nothing new about it either. I can show you accounts in the 19th century when politicians—your predecessors; actually, there were not any federal ones in the 19th century—would say things like, 'Any reasonable person will agree,' meaning, 'People like me think this.' It is very easy, when we believe passionately about something, to think that all reasonable people must agree with what I have said and the way I have expressed it.

In Hyde Park in Sydney, there is a fine statue of Sir Henry Parkes. It was not erected in his lifetime. It would never have been erected in his lifetime because he was a deeply unpopular person as well as a long-serving Premier. But after the Commonwealth of Australia was established, he became, in the 1920s, a founding father and it was thought then by the citizens of Sydney that a statue should be erected in his honour. Even then, there were people who could remember him when he was alive and detested the notion that Sir Henry Parkes would be commemorated with a statue. They would be pleased to see that, of all the statues in Hyde Park, it is the one most covered by bird droppings.

I make that remark because, if we recognise that commemoration is about values and that values shift uneasily between 'is' and 'should', it is awfully important that we get the processes right and clear. This paper that we put to you, in my view, is a very good, straightforward and clear paper about how best to do that. We have proposed in it some models that we have developed ourselves for our own processes and think they might be worth considering. In the three years that I have been associated with the authority, we have spent a lot of time and energy on making sure that the Australian citizens closest to us, those who live in the national capital, are in a position to see straightforwardly what we do, how we do it and why we have done it. When your deliberations come to the end, if you see that as being the important outcome of this process, we would feel very pleased. Thank you.

CHAIR: Terrific. I might lead off with a commencement question. One of the proposals in your submission is for a master plan for national memorials. I am interested to know what you think should be covered in such a plan. Your submission touches on that, but how would that relate to the existing approvals processes in terms of the other institutional arrangements that clearly the national capital has to interact with—things like perhaps the EPBC Act or the Heritage Council? You will clearly know the array of those that you need to interact with. What would be the legal status of such a plan; and, if it does not have any currently, what should it be?

Mr Rake : We propose that the master plan would probably sit as an appendix to a revised set of guidelines for commemorative works. We believe that, to improve the rigour of those guidelines, they should have some legislative force. The easiest mechanism that we see would be to include them as a schedule or an appendix within the National Capital Plan. So they would have disallowable instrument status; they would become a legislative instrument.

The process for making that part of the plan would involve broad public consultation and tabling in both houses of parliament. The form of the master plan would be guided by the commemorative guidelines that we have at the moment, which include zones for particular commemorative intents. But it might go a step further and even identify windows or smaller geographic sites to almost allocate spaces in advance, without having a topic in mind but having a theme, having a space, having a general character.

CHAIR: Can I ask how we would go about creating what needs to be done in order to give legal status to such a plan?

Mr Rake : We already have a draft set of revised commemorative guidelines, so we would have a starting point. It already has broad zones within it. So the authority, I would have thought, within a period of a few months could develop that a step further and then take it out for the community to give us some views on the direction and bring it again before this committee for some views on its direction. If it looked as though we were headed down the right path, I would take it to my colleagues at the authority and ask them to consider proposing it as an amendment to the National Capital Plan and it would then go through the normal amendment process.

CHAIR: Professor Aitkin, you made some remarks in your opening comments about some of those things that we need to balance. You used a fairly esoteric example. Clearly there are big differences between local and national interests. I suppose also, as the National Capital Authority, you have responsibility for not only a geographic space but also a relationship with the nation and the whole of the nation in how you acquit those responsibilities and define Canberra. So how do we best achieve that balance, in your view?

Prof. Aitkin : In the paper, there are two nesting proposals. One of them is that ACT membership should be defined for the committee: one being a member of this parliament and one being a person nominated by the ACT government. We think that would provide some of the balance that is necessary. The other is that the consultation process that we propose, which is built on what we do ourselves, would enable the citizens of the ACT to know what is being proposed and to express some views. It does not mean that their views must prevail at all. In fact, this is the national capital and being in the national capital has costs and it has advantages; and, if you want the advantages, you have to accept that there are costs as well. Our experience is that, if people are allowed to make their statements and have a point of view expressed, half of their angst is dealt with simply by doing so. I do not know whether my colleagues want to amplify that, but I think that is the essence of it.

Mr Rake : The only thing I would add is that, with our communication mechanisms, any public engagement would need to target that national audience as well, particularly if we were talking about the commemorative intent. The commemorative intent is the one that most needs a national focus and a reflection on national sentiment. There is probably an argument—

CHAIR: How do you gather up that sentiment to show that a particular memorial has a mandate to exist?

Mr Rake : I think one of the most convenient mechanisms is to use the elected representatives that come from around the country to this place. They, I think, are very well placed to read the view of the community across the country. But, for our part, our engagement targets a national audience. We have recently had a bit of success in getting national coverage of stories of interest in the national capital, and the expansion of the number of digital television stations is very helpful there. They are hungry for content and they go to a national audience; that gives us an opportunity to promote topics like this, which I think would be of interest.

CHAIR: I might turn to other members of the committee. I certainly have more questions but we have time to have a flowing discussion, I think.

Senator HUMPHRIES: Thanks for the submission and for the various options it covers. The suggestion that you mentioned a moment ago of two residents of the ACT being replaced with a member of parliament representing the ACT and the chair of this committee I think is a worthwhile idea—especially if it is me that gets the job, it is very worthwhile!

Mr Rake : There is no memorial that comes with it.

Senator HUMPHRIES: That is true; I can work on that! But there would be another suggestion that, in fact, those sorts of nominations or those sorts of positions should not just be on this CNMC but should actually be on the board of the NCA itself. What is your reaction to that suggestion?

Prof. Aitkin : That was proposed in your report The way forward some years ago and it is a perfectly reasonable suggestion. My only caveat about it is that—I am trying to think of the legal case; it will come to me in a moment—such a person cannot be a delegate. If they are a member of the National Capital Authority, they have to be a member irrespective of how they got there; and, while they are there, they are exercising the powers of the national parliament disposed towards the NCA and not at the behest of any outside body. This is a very difficult problem, as you are all very well aware, throughout Australia: people see themselves as being, in a sense, delegates. They could not be; and I do not think they should see themselves as that on the CNMC either.

Mr Rake : In terms of our own board, in Dr Hawke's report released yesterday, he does very clearly recommend that the ACT should be allowed to nominate a member to the NCA board. Having discussed it at board level, we welcome that. It is a nomination of a member; it is not to send a representative of the ACT.

Senator HUMPHRIES: As the chair mentioned, we heard from the National Capital Planning Commission in Washington on Monday or Tuesday—whenever it was. That body, of course, includes the Mayor of Washington and two nominees of the Mayor of Washington; I think there has to be someone from Maryland and someone from Virginia; the chair of the relevant Senate committee covering responsibilities for Washington; the chair of the relevant House committee; and nominees of the President. All the interests are covered on the board. I think you would agree that it would require a very different concept of how the NCA worked. It would be a very significant change in the nature of—

Mr Rake : Correct; it would be very different.

Senator HUMPHRIES: Let us suppose that we had those representatives on the CNMC and let us imagine that this situation with the World War I and II memorials had happened again, but this time let us, for argument's sake, say that Senator Pratt and I were both sitting on this committee. What would be different about the process? How would it evolve differently by virtue of us being on the committee?

Mr Rake : If the only change were to the membership of the committee, it would only have changed to the extent that you or Senator Pratt read the issues differently from the members of the CNMC that attended the meetings that made those decisions. If nothing else had changed, it would only be down to the change in judgement that you might bring. I do not think, and our submission does not suggest, that changing the membership will solely result in the level of improvement that we think is possible in this process. It really needs to be supported also by those accountability and transparency measures, letting there be some real visibility about the matters that are coming before the CNMC, the advice that is being given to it and the way that it is contemplating decisions and, indeed, eventually making decisions.

Senator HUMPHRIES: Let us assume that those changes have also been made—that we have the whole restructure that you suggest in your submission. Again, how would the World War I and II proposal have been dealt with differently under that scenario?

Mr Rake : I will summarise the areas of opposition to that proposal into three perhaps oversimplified areas: opposition to the commemorative intent—the notion that we need the memorials at all, whether that be because people think they duplicate another body or whether they oppose the commemoration of war; opposition to the location; and opposition to the physical form.

Opposition to the commemorative intent: if the fact that the CNMC were considering a memorial to World War I and II was in the public domain—and it would be in the public domain through making a public record available of committee proceedings—those who oppose that commemorative intent would make their views known. The debate that we are currently faced with would have occurred at a much earlier date. The CNMC would have the opportunity to think: 'Is this commemorative intent correct? Have we framed it correctly? Is the subject matter worthwhile?' It is a very strong values judgement. Our submission suggests that, when we are talking about commemorative intent, we need the broadest possible agreement in the community because the debate about location and character has the potential to dishonour an otherwise very worthy commemorative purpose.

On location and character, again, publicising that the committee will be considering a proposal, with respect to engaging with the community, we have proposed that the community—the local community in particular—should be given an opportunity to comment on location and character before the CNMC makes a decision. We have recently attempted to do that with a current proposal for a national workers memorial. Before the design competition commenced and before we prepared guidelines for the competition, we asked the community to tell us what they thought would be important in commemorating workers who had lost their lives either in workplace accidents or as a result of workplace-generated disease.

Senator HUMPHRIES: But after the government of the day had already said, 'We want this concept to happen,' and the idea had been agreed to already.

Mr Rake : In this case, yes, it was, and we entered this change part-way through the life of that project. Again, I would suggest that the parliament of the day, rather than necessarily the government, should contemplate commemorative intent and make a decision. Whether that is through an expanded form of the CNMC or some other mechanism, we get the commemorative intent agreed first without a disproportionate engagement with the local community. But by the time we get to location and character, the local community needs a stronger say.

Senator HUMPHRIES: Okay, I see what you are saying. It would seem to me—if I can put this to you—that, if the committee were composed as you have suggested and it had those public notification kinds of processes involved with it, you are right: in the case of controversial proposals at least, there would be very extensive public debate and discussion about those concepts, and the members of the committee would become subject to lobbying about these issues. In the case of Senator Pratt and me—as public officials with some level of responsibility, by virtue of membership of this committee, for those issues—that is understandable. But I am not entirely sure that it would be quite as appropriate for the Prime Minister and the opposition leader to be caught up in that kind of lobbying as well, because that is not quite the way that their role to date on CNMC has been seen. Can I put to you what I think is the problem with what you have suggested?

Mr Rake : Sure.

Senator HUMPHRIES: There are three ways of taking on this kind of approach of building new memorials. It can be a purely executive concept or decision—as, I would argue, the CNMC is now; it can be a parliamentary process, which is what they do in Washington—each proposal is initiated by an act of congress; or it can be something which is a hybrid of those two with public consultation, so the public are engaged very early with lots of discussion and an idea goes up to the executive or the parliament. With what you are suggesting with the change in the composition of the CNMC, you seem to be trying to amalgamate all three processes into the one body. I would suggest that you need to separate them, decide which of those paths you go down and then restructure the decision-making body appropriately. If it is a legislative process, I would argue that you do not want the Prime Minister or the Leader of the Opposition sitting on the committee. You probably want this committee to be looking at it, or even a public consultation process before it gets to this committee or some other parliamentary committee.

Mr Rake : There are certainly risks in any of those three models. We have seen the purely executive one criticised for lack of opportunity for the community to be engaged. With the pure parliamentary model, there is a risk of proposals, which might not actually be nationally worthy, succeeding because, in the political and media environment that our elected representatives face, it might be difficult to say no to a bad idea, for fear of broad criticism in the media for seeming to be hard of heart. So there is a risk with the parliamentary model as well. I guess the community one is where we get down to some sort of deliberative public participation. There is a lot of merit in that, when we are talking about the values that are inherent in commemoration. But it is a complex process. It can be more costly and time consuming—I do not think time consuming is a problem in the case of commemoration, but certainly complexity and cost would need to be considered. I guess that is where we came to our hybrid. We did try deliberately to blend some of those models.

Senator HUMPHRIES: The other filter that they apply in the United States is that, generally speaking, the government does not fund any memorials; they are all funded by public subscription or corporate donation. So that is the filter, in a sense, on worthy ideas. People will not put their money into something that they do not think is a good idea, presumably.

Dr LEIGH: Going to the mapping of the memorials, could you tell me a little more about how specific you envisage that process being? Will it be down to the particular parcel of land and, 'This is a spot that would be suitable for a five-metre by 10-metre memorial,' or is it at a higher level than that?

Mr Smith : I think it would be at a higher level than that. As the chief executive described, we would be looking at retaining or maintaining some sort of curatorial theme across the landscape for our commemorative projects, so that, as best you can, like is with like. It is very difficult when you are dealing with individual proposals to really understand, at first flush, the scale and character of the proposal. The best guide you have is what a proponent might have as a target budget. I would imagine that you would be looking at some sort of precinctual model, where envelopes of commemorative works might be described.

I will use an example of the work that was completed about five years ago—the national police memorial. When the work was occurring prior to the design competition, the site was identified and approved by the CNMC. But when it went to a design competition, there was an envelope provided to the competitors. That basically said: 'You have to place it in this general area. This is the volume and the maximum height you could provide, and these are the sorts of connections that you must create to that particular work.' So it is about setting the work within a landscape and setting the work within a curatorial theme.

Dr LEIGH: There seem to be two considerations that we would want here. One is the notion of zones. So, at a very broad level, we might think that military memorials should be placed in my electorate and non-military memorials should be placed in Ms Brodtmann's electorate; that seems to be a general way in which things have been split. But then there are subzones, particularly within the Parliamentary Zone; and the smaller they get, the more, in some sense, arbitrary they feel. How important do you think those zones should be compared to the question of whether the design of the memorial is aesthetically right for the spot in which someone wants to place it?

Mr Smith : I have never actually heard anyone describe the political boundaries. In terms of the scale of the memorials, the history of commemorative works in Canberra tends to be that the larger memorials are those related to our military service—military history. That may be because those groups are able to succeed and obtain reasonably large amounts of money to prosecute their work.

I think it is probably true to say that the smaller memorials, and particularly commemorative plaques, that we make mention of, are fairly randomly placed because they have subject matter that has not been foreseen by the National Capital Authority and they reflect particular milestones that are important to a particular constituent group. The siting of them is fairly arbitrary and it is fairly random. As best we can do, they are co-located with a facility or a building that has some sort of reference to the subject matter of the commemorative work. We make mention in the submission of a plaque to the Centenary of the Public Service. That is actually located adjacent to what is now the John Gorton Building but nearby what was the administrative building, which is one of the major buildings here.

The other aspect of this, particularly for those smaller works, is how the decision makers involved in that value the particular commemorative work. One of the plaques that we have done over the last decade is located in the gardens of Parliament House and it commemorates the first anniversary of the Bali bombing. Clearly, it is just about impossible to predict those events and how the community wants to respond to commemorate them. So we do make our best judgement at the time to try to keep the works at a small and comparatively modest scale so that they are not really going to adversely impact the broader landscape setting of the city.

Dr LEIGH: Thank you; that is very helpful. When we spoke to colleagues in Washington DC, they took the view that donors' names should never appear on memorials. What is your view on that issue?

Mr Rake : I would tend to agree. National memorials largely commemorate service, sacrifice or contribution to the nation. That sort of commemoration is earned; it should not be bought.

Dr LEIGH: Do you believe that should be a hard-and-fast rule?

Mr Rake : I would never say 'never'—

Dr LEIGH: They do.

Mr Rake : But I cannot think of an example where it would be appropriate in the national capital to have someone buy their way to a place on a national memorial.

Mr Smith : Just to follow up—

Senator HUMPHRIES: Wasn't the immigration bridge in that category?

CHAIR: Aren't the War Memorial proposals much the same—not that it is the proponents', but it is—

Mr Rake : There would be private money to fund them, but I would not want to see the donors named on—

CHAIR: No. I think there was a process of families being able to get their names onto the—

Mr Smith : There are a number of monuments and memorials where significant contributions have been recognised in basically modest plaques somewhere in the precinct of the memorial. I cannot think of one that has dollar values attached to it.

CHAIR: Yes, that makes sense.

Mr Smith : But I do know that, whenever it has occurred, the controls over recognition of the donor have been pretty strict. That goes simply to no corporate logos, no corporate typeface. So if it were McDonald's, for example, they might be asked to write 'McDonald's corporation' at—

Dr LEIGH: I am sorry, I misunderstood you. So, Mr Rake, your position is not that we cannot recognise donors but that we should not put the dollar figure after them; or is there a slight difference—

Mr Rake : No. There is a slight difference in placement—so in the headline structure. The idea of being able to buy your family's name onto it, I think, is one that has to be very carefully considered. Putting it on a brass plaque—how do we differentiate the service, if it were a war victim, between the family that can afford to buy a name or knew that the proposal existed and those that did not? I would not support the notion of your being able to buy your name on a commemorative plaque. The people who helped to build it are something different. So I think it is around—

CHAIR: Notwithstanding that, clearly you can have a group of proponents who pay for a memorial and they would feed money in—

Mr Rake : Yes.

CHAIR: but there are any number of ways of skinning a cat, and you might actually have small groups of people buying bits of a memorial, which communities might do in terms of—

Mr Smith : So it would be akin to a 'buying a brick at your old university' sort of arrangement.

CHAIR: I beg your pardon?

Mr Smith : The only proposal that I have seen a bit like that would be the immigration bridge.

CHAIR: Yes. There is a similar one in Western Australia where there is, I think, a wharf, and families can commemorate—

Senator HUMPHRIES: And in Sydney too.

CHAIR: people who have arrived through a certain port.

Mr Rake : With the immigration bridge proposal, as it stood in the past, those proponents were selling name spaces on a hand rail. The revised version of that project is a landscape monument within the Parliamentary Zone. The view of the authority—and we have put it very clearly to the proponents—is that they should not be able to sell names on a plaque in with that.

CHAIR: I should think that a deliberative process with the community to talk about these questions would be quite worthwhile. I have a quick question. Do you want to ask some questions now before you have to go?

Ms BRODTMANN: Yes. We have had presentations from the department of environment on the EPBC element. I notice in your proposal that the current situation with developments in the Parliamentary Zone is that they get the EPBC Act applied in advance of approval. One of the things that we were concerned about was the fact that it was post-event on the memorials. Perhaps you could elaborate on that. My own view is that I think the EPBC Act needs to be brought in right at the start on memorials. I would be interested in your elaborating on that view and how it actually works. I am not asking why it has not been applied to the memorials—if you can enlighten me on that, that would be great—but how does it actually work in terms of the Parliamentary Zone?

Mr Rake : We agree that it should be brought in earlier. It might not necessarily be able to be brought in in full right at the beginning, because we need there to be some development of the proposal before—

Prof. Aitkin : It may not be well enough defined.

Mr Rake : we know what is to be assessed under EPBC. I did note that Mr Burnett, the representative of the relevant department, in his evidence to this inquiry talked about the potential for the works approval process to be accredited—I think that was his term—to serve a dual role, We are very interested in pursuing that. It is something that relates very closely to some of Dr Hawke's recommendations yesterday as well—that is, trying to bring together the heritage values and assessment within the national capital: the way that is reflected in heritage protection and the way that it is reflected in regulatory instruments like the National Capital Plan. It may be that the plan, with a memorials master plan and some redrafting, could tie all of this together into one process. That would help the community. It would happen earlier. It would enable interested parties to comment on the matter once in a comprehensive manner rather than having to keep their eye open for two or three separate processes. There is something a little bit unfair for interested community groups to have to watch out for three separate bureaucratic processes.

Ms BRODTMANN: It would also give us the opportunity to get an assessment of the value of that potential site at an early stage. What was that name? I cannot remember the individual's name.

Mr Rake : Mr Burnett.

Ms BRODTMANN: Yes. He was saying that the ACT has a process where—I think it is the EPBC—local legislation applies early on in development proposals as well, which has worked out well.

Mr Rake : Yes. The ACT heritage framework is quite different from the EPBC and they do have, I believe, some stronger mandatory triggers along the way. But certainly we could write into the consultation and decision-making process for the CNMC that heritage assessments, even if they were not a formal and final clearance under EPBC, could be the building block. First, we assess location: would it be likely to offend any of the known heritage values? If so, that location might be parked and we would have to find another one. The next element might be assessment of the broad development envelope that was being proposed. The final clearance might be when the proposal is quite well developed. But at least along the way we would be looking for early warning signs.

Ms BRODTMANN: Yes. I think it is important to get it in early in the process.

Mr Rake : Yes.

Ms BRODTMANN: I think we were all a bit surprised about the fact that it was very much after everything had happened.

CHAIR: I have before me a copy of the Guidelines for commemorative works. What is the latest copy of those guidelines? I think the one I have before me is 2002.

Mr Rake : That is the current version. There is a more recent draft version but it has not been formally considered by the CNMC and has no official status.

CHAIR: I note in the last hearing we had some discussion of the fact that these current guidelines do not have any legal status. When you talk about creating a master plan, you really would be looking at taking a set of guidelines like this, turning them into a plan and inserting them into the National Capital Plan. In the section entitled 'Siting areas north of Lake Burley Griffin' there are some points about commemorative sites that honour non-military sacrifice, service and achievement. I am somewhat 'confuzzled' by the statement that 'sites adjacent to the Rond Terraces serve as a transition from Anzac Parade and should be reserved for commemoration of non-military sacrifice, service and achievement in Australia, in times of peace'. It would strike me, as far as my understanding of Canberra's geography goes, that the siting of the proposed war memorials would contradict what is actually in these guidelines.

Mr Rake : Yes. I am on the public record a number of times acknowledging that the siting proposed for those memorials is inconsistent with those guidelines. But they are guidelines and, at the time the decision was made, they did not have any legislative force.

CHAIR: So, in a sense, as far as avoiding some of these controversies in the future, if they were to have some, I suppose, legal standing, the National Capital Authority or, if you like, those that make decisions under the ordinance, if they are compliant with those guidelines, would have been unable to make such a decision. I am not pre-empting what future guidelines would or would not say.

Mr Rake : If that document had been an appendix to the National Capital Plan, we would not be able to contemplate giving it works approval on the way the proposal is cast. We are only able to give works approval for activities that are not inconsistent with the National Capital Plan.

CHAIR: There being no further questions, gentlemen, we thank you for your evidence.

Prof. Aitkin : Thank you. Perhaps I could finish by just noting that, like Andrew Smith, I was surprised at Dr Leigh's neat division of spaces.

Ms BRODTMANN: So was I.

Prof. Aitkin : I wondered whether he had taken into account that women may now serve in the front line and whether that would make a difference.