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Joint Standing Committee on the National Capital and External Territories - 22/06/2011 - National Capital Authority

AITKIN, Professor Don, Chairman, National Capital Authority

RAKE, Mr Gary Michael, Chief Executive, National Capital Authority

Committee met at 12:34

CHAIR ( Senator Pratt ): I declare open this public hearing of the Joint Standing Committee on the National Capital and External Territories. In July 2008 the committee released its report entitled The way forward: inquiry into the role of the national capital and as part of that report we made a series of recommendations which sought to enhance the governance and accountability of the National Capital Authority. In particular, recommendation 3 proposed that representatives of the NCA appear regularly at public hearings before the committee. The committee is empowered to inquire into the NCA through its resolution of appointment, which provides for the annual reports of the NCA to stand referred to the committee for any inquiry the committee may wish to undertake.

The chairperson of the NCA will have an opportunity to make a statement outlining key achievements and performance objectives. The hearing will provide an opportunity for the committee to seek an update on the World War I and World War II memorials which have been criticised by some sectors of the community, so we look forward to having some of that discussion this afternoon. The evidence today will be recorded and attracts parliamentary privilege. I would like to refer members of the media who may be monitoring this hearing to the need to fairly and accurately report the proceedings of the committee.

I welcome representatives of the National Capital Authority to this afternoon's hearing. Although the committee does not require you to give evidence on oath I should advise you that these proceedings are legal proceedings of the parliament and therefore have the same standing as proceedings of the respective houses. Would you like to make an opening statement?

Prof. Aitkin : I have distributed to members of the committee a paper that I gave as a House briefing a couple of weeks ago about the problem of planned cities. I might spend two or three minutes simply summarising that. The elements of it have been discussed in NCA meetings throughout the year and we are just finalising the annual report, so all of this is very fresh for me.

We are accustomed to seeing Canberra has a special place. We keep saying that, and it is true. But it is not the only planned city there ever was, by any means. There have been hundreds and hundreds of fresh starts in human history. Canberra is the most sustained and the most successful of any attempt in the last few hundred years to build a city de novo, from scratch. I have a personal interest in cities and set up the Centre for Developing Cities at the University of Canberra. Cities fascinate me as ways in which humans congregate. Some people start with the grand idea that they are going to have a new capital. Peter the Great did in Russia. He called it St Petersburg and it lasted 11 years before he died and everyone went back to Moscow. Afterwards, they decided it was not a bad idea and they went back to St Petersburg, which was the capital until the Bolshevik revolution. They moved it then not because they liked Moscow—in fact, on the whole Russians dislike Moscow more than they dislike St Petersburg—but because it was too close to the Germans.

Canberra started from scratch in an open field that had very few trees on it. It was cheap to build on and, like all other planned cities, it started with three very important elements. The first is a vision, the second is the plan and the third is will—the will to make the plan work and to keep the vision alive. Through a variety of circumstances which I mention at the end of my paper, Canberra has survived for a century essentially with the original vision and with the plan amended to take account of a population of 360,000 rather than 15,000, which was the population when I went there in 1943, alive. The will is still there partly because of the Commonwealth's control of every square metre. It is the owner of the entire Australian Capital Territory. I will stop there because I think it is such a fascinating read you will want to quickly go to your rooms and read it.

What I would like to say is that 100 years is the first 100 years. There will be a second 100 years. Well before the end of this century—unless Dick Smith is right and we are going to reduce the Australian population—we will have a million people here. In the next century, we will have more if the human population keeps growing and Australia keeps growing. The national capital grows at roughly the same rate as the country as a whole, a little more or a little less according to when we are growing. The NCA is fascinated and almost terrified by the responsibility of how we plan properly for the next 100 years when it is plain for many of members of parliament and for many Australians that, in a way, it is done; it is finished. The national capital is built. We do not need to worry about it anymore. That is the ACT government's problem. Of course, it is not and you all know that. So, at the moment, we are waiting for the finalisation of the Hawke response to all the inquiries, especially your own, and the government's response to that so that we can go ahead with what we see as the next 50 years, which is our remit: how we are going to plan for a city of a million people, and how we are going to achieve the effective partnership with the ACT government, which is absolutely mandatory if that is to occur properly. Thank you, Chair.

CHAIR: Thank you very much. I think that is a notable introduction, given the nature of the debate about things like the proposed war memorials. Somehow that connects to the vision of the past and the future. I might pass to Ms Brodtmann to begin questioning.

Ms BRODTMANN: Thank you very much. It is good to see you here today. I want to start on the World War I and II memorials. We have a pretty good update on where things are at currently. I have about three questions on it. Firstly, it is currently under review through the EPBC Act. What will the agency that governs that act be looking for?

Prof. Aitkin : I will pass to Gary there.

Mr Rake : The relevant department will be assessing whether the proposal has a significant adverse impact on heritage values. That is their primary aim. If they cross that threshold, they would declare the proposal of controlled action. It is fair to say that, if, in their view, there was going to be a significant adverse impact on heritage values, the NCA would also not provide works approval for the proposal. They will be assessing a broad range of values. They will look at natural and environmental values as well as cultural and heritage values. It is a broad ranging assessment. It will involve a 10-day statutory public consultation period in which people will be able to make submissions, either identifying values, identifying potential conflict with values or proposing means of addressing potential impacts on heritage values.

The proponents, as I understand it, are still working on their internal assessment in the preparation of that referral, and it has not yet been lodged. But the proponents did give quite a strong public commitment that they would let the community know when they were ready to make that referral so that the interested stakeholders had time to prepare themselves and to keep an eye out for the commencement of the consultation period.

Ms BRODTMANN: What constitutes a significant impact?

Mr Rake : It varies depending on the value. If we were talking about an environmental value, a building that cast shadow over habitat of an endangered moth would be potentially a significant impact if it were a viable population. In this case, we are likely to be dealing with cultural values, and so they will look at elements of the original plan of Canberra. They will look at views into and out of the area. They will look for any associations with prominent persons involved in the development of the national capital. Elements of the proposal which offended any of those in a major way would be likely to be deemed an adverse impact or a significant adverse impact. The mere placement of any object in an area that has heritage significance, and the Parliament House vista has heritage significance, will have an impact and there has to be some level of threshold and, hence, the term 'significant'.

Ms BRODTMANN: Just on the committee itself, I understand that in its remit it was always meant to have two ACT residents on it.

Mr Rake : The Canberra National Memorials Committee.

Ms BRODTMANN: That is right.

Mr Rake : Not always, but for a very long time and certainly for many decades. The ordinance was changed, I believe, in about 1953 to include two local residents, but for a very, very long time those positions have not been filled, to the best of my knowledge, for any of that period.

Ms BRODTMANN: Since the fifties.

Mr Rake : That is right, since the fifties. Not at all have there been dedicated local representatives.

Ms BRODTMANN: Do we know why?

Mr Rake : No, I don't.

Ms BRODTMANN: Thank you. I am conscious of the time. I want to move onto the Hawke review. How is that going? When is it due to report? And can you give us a sense of what issues are emerging so far? I know that it is still being developed, but if you could give us some headlines on the issues that are emerging on that.

Mr Rake : Perhaps I will deal with process and then the chairman may tell you the views that we put to Dr Hawke. We believe that Dr Hawke is still on track to submit a report at the end of this month or very early next month. It is a review of the NCA, so whilst one of our officers is providing some administrative support to Dr Hawke we are not leading the review. The review is being led by the department of regional development and local government. So we anticipate the report will be delivered within the next few weeks. It will then be a matter for government to prepare a response.

Prof. Aitkin : Our submission concentrated on two things. One was the fact that, since the budget decisions of 2007-08, we have been manifestly short of the necessary funds to do what we are ordained by law to do, and so we are constantly juggling public safety issues against how high the grass is—that sort of thing. The second is that we need a clear statement from the Commonwealth government that the NCA has a role both in the maintenance of the public estate and in the future planning of the national capital. I prefigured that in my earlier remarks. Those are the important things—to be given a clear mandate for the future and to be properly funded to discharge that mandate.

Ms BRODTMANN: That is emerging as a message from the consultations through the review?

Prof. Aitkin : We are not part of the consultations that Dr Hawke is having.

Ms BRODTMANN: Maybe we could go back to that.

Mr Rake : Dr Hawke has not sent me any signals yet to say that he is planning to recommend our abolition, for example.

Ms BRODTMANN: Okay.

Mr Rake : We have made the case that we believe that there is a strong, continuing role for the Commonwealth and that we believe this organisation is well placed to discharge that responsibility for the Commonwealth.

Senator HUMPHRIES: Can I follow up the question from Ms Brodtmann about the EPBC review. It was reported in the Canberra Times that a group is about to or has lodged an emergency heritage listing application. First of all, what is the process for dealing with such an application? I appreciate it is not your responsibility but I hope you can advise us. And, secondly, what would such an application being granted do to the process that you have described that the EPBC process will engage in?

Mr Rake : As to the process for assessing it, I believe the department treats it as a matter of urgency. It is an urgent nomination. They would prepare advice for their minister recommending whether or not in their view there was an imminent threat to it. That gets them across the threshold for an emergency assessment rather than a standard assessment. I would anticipate that they would be working on that advice at the moment and they may well give advice to their minister in the very next little while, whether it be days or weeks. I would not anticipate that it would be longer than weeks. If that nomination succeeded and the lake were added to the National Heritage List, the valuation process for this proposal remains the same but the level of test becomes a higher bar to cross when it comes to evaluating heritage. At the moment, we already have the Parliament House vista recognised on the Commonwealth Heritage List. The NCA of its own volition last year nominated Lake Burley Griffin and adjacent lands for inclusion on the Commonwealth Heritage List. The National Heritage List is a higher level of protection. It is a longer and tougher evaluation process and that was the reason that we went for the Commonwealth Heritage List nomination in the first instance. We had all of the material we needed to make that nomination. I would also let the committee know that the NCA has been working closely with the department responsible for heritage to look at developing a thesis that might guide future nomination of Canberra to the National Heritage List, to that same high level of heritage protection. Our focus there is on the notion of a planned city and the special characteristics of the central national area, which is likely to include the lake and its foreshores as well. But that is not on an emergency assessment path. It would be in the standard evaluation process.

Senator HUMPHRIES: Is it likely, given that the same minister has to consider both the heritage listing application and the outcome of the EPBC process, that there would be a delay in the latter while the former was being determined?

Mr Rake : I do not know the answer. But, in any case, it does not affect this particular situation because the referral for this project has not yet been made. If the referral were lodged today, the minister, knowing that he has an emergency application before him, I am sure would procedurally set it aside and I am sure the department would give him that advice. But, at the moment, there is not a referral under EPBC.

Senator HUMPHRIES: When is that expected?

Mr Rake : The original timing was around late June, early July. I think it is probably within the next month. But, again, the proponents gave a commitment to make it publicly known when they were ready to make that referral and I am sure that they will live up to that.

Senator HUMPHRIES: You mentioned that the NCA has already given the lake itself Commonwealth heritage listing.

Mr Rake : We have nominated it for inclusion.

Senator HUMPHRIES: Have you nominated the foreshores or just the lake itself?

Mr Rake : The lake and its foreshores. It flowed out of the assessment we did of the heritage values of the lake. We first and foremost identified that the lake infrastructure—such as Commonwealth Bridge and Kings Avenue Bridge, Scrivener Dam and the foreshores, both the areas that we might commonly may think of as the foreshores and also Stirling Ridge and Yarramundi Peninsula—do have Commonwealth heritage values. So straight away that puts an obligation on the NCA as a controller of those places to take account of Commonwealth heritage values in any action we take, whether it be a project of our own or a works approval that we grant. But we also identified that those Commonwealth heritage values were significant enough that we should nominate it for formal inclusion on the Commonwealth heritage list, and we have made that nomination. The department has not yet undertaken the evaluation.

Senator HUMPHRIES: Obviously as part of that you have nominated Rond Terrace, where these memorials are proposed to be built.

Mr Rake : Yes.

Proceedings suspended from 12:53 to 12:58

Senator HUMPHRIES: I want to essentially raise with the NCA a number of the issues that were raised in the article in the Public Sector Informant of 7 June, headed 'Forgetting diligence'. It is about the lake memorial process. I want to get your response to the issues that were raised. Broadly speaking, the author of this argues:

The statutory decision-maker has let down the ... parliament and the people it is supposed to be serving ... has cut corners—

When they say 'it', I think they are referring to the Canberra National Memorials Committee rather than the NCA, although it is not clear from the article—

avoided issues and manipulated the decision-maker. The authority’s current representatives have obfuscated and stonewalled.

What is your general reaction to that criticism?

Mr Rake : I would accept the article as criticising both the CNMC and the NCA. I do not think the article intends to let us off the hook at all, both in our own decision-making capacities and in the service or advice that we have provided to the CNMC. I think the author intends those three heads of claim.

Prof. Aitkin : Yes, I would agree. It is always difficult for a body like us when we are talking about decisions made by our predecessor members. In fact, there is nobody on the present NCA who was part of that original decision-making, and nor are all the papers available from that original decision-making. But inasmuch as they exist and inasmuch as I have seen them I am personally satisfied that the advice that the NCA gave at the beginning was valid in terms of the rules and procedures that operated at the time. Having said that, since there is an obvious inference to draw from what I have said, if such a proposal were to come forward today we would be saying to the proponents, 'You will need to consider this going to public engagement' because everything we do now is public engagement and we no longer give approvals in principle. I am not sure we did at that time, either. But in a sense we were saying, 'In principle we're not opposed to this.' We do not say that anymore.

I remain of the view that the recommendation that was made at the time was valid in terms of the rules that operated then but, if it were to be done today, there would be a slightly different set of procedures. In fact, the Lake Burley Griffin heritage business did not exist then. It does now, and that would make it harder for such a proposal to get up. Having said that, we were not the authority then; the Canberra National Memorials Committee was the true authority. We were providing advice.

Senator HUMPHRIES: To the extent that this is a responsibility which has been shared between that committee and the NCA, are you confident overall that the decision at the point it has reached at the moment—and there are decisions that have made up the process we have reached at this stage—has been made entirely in compliance with the necessary legislation and with proper process?

Prof. Aitkin : You have put two elements there. Proper process—yes, entirely with respect to the legislation at the time. As Ms Brodtmann said, the legislation said that there should be two members appointed from within the Canberra community and that has never occurred. I am not sure that that is a root and branch deficiency, but you could argue that it is. I do not think it is clear that that made it invalid, so I would go back to what I said before. Gary is closer to some of the stuff than I am.

Mr Rake : If we believed that there was a clear technical impediment in any of our advice or a legal deficiency in the process, we would advise the committee immediately. We have reviewed it closely and, notwithstanding our views on whether we would approach the process in a different way today, we believe it was perfectly valid—

Prof. Aitkin : At the time.

Mr Rake : given the rules, guidelines and procedures at the time and that there is not a technical legal deficiency in it.

Senator HUMPHRIES: Does that mean you have obtained legal advice to that effect or that, on the basis of what you understand the rules to be, you do not think there is a legal deficiency in the decisions that have been made?

Mr Rake : We have not sought specific legal advice on this. Our budget is tight and we have to pay for all of our legal advice. But we have collectively and individually looked incredibly carefully at the process and the decision path to get us here and we are confident there is no deficiency in the legality of the decision.

Senator HUMPHRIES: But neither of you gentlemen are lawyers. I would put to you that not just for the sake of this decision but for the other decisions that the Canberra National Memorials Committee, to which you are the secretariat, makes there needs to be some clarification of the status of those decisions by determining whether the absence of two members, at least, on the committee representing the community of the ACT validates, or potentially invalidates, the decisions made by that committee.

Mr Rake : You said there that we are 'secretariat'. We have asked to take back secretariat. I think we have an agreement within government that we are going to take back secretariat. I have a meeting at three o'clock this afternoon in which that is on the agenda and if somebody hands me a folder I could well be secretariat again by late this afternoon. I might suggest that the department, as current secretariat, seek the legal advice on their own legal bill.

Senator HUMPHRIES: We might take that issue up separately with the department. I will go through a couple of things that were said in this article. From the documents that were released under freedom of information that the article refers to, it does sound like the first contact with government over this issue was the meeting between MDC and the NCA in the form of its then chief executive and that at a meeting later that month in July 2005 the NCA—I gather this was minuted—supported the proposal for the memorials subject to the proponents seeking the support of government and funding being identified. It then says that the authority wanted sites to be identified on either side of the Rond Terrace at the end of Anzac Parade. It is not clear. You said you supported that in principle then but do not now. From this, it seems as if you were identifying for this project the sites at the end of Rond Terrace as the most appropriate place for the memorials. Is that a misreading of the article? In any case, who actually decided that the sites at the end of Anzac Parade on Rond Terrace were appropriate?

Mr Rake : No, that is not a misreading of the article. From my search of the records, it was the board of the NCA who identified those sites. I will pick up a couple of elements. The first record I can find of a meeting was between the then chief executive and the MDC and that was in early July of 2005. The meeting that you referred to occurred in late July 2005, about 2½ weeks after that first recorded meeting. If there were any discussions before that, I have not been able to find a record of them.

The MDC were looking for a pair of sites. They wanted sites as close to or preferably on Anzac Parade, but there are not paired vacant sites on the parade proper. The proposal that went to the board for consideration in late July was actually to put the memorials around Rond Pond, which is the roundabout at the base of Anzac Parade at the intersection with Parkes Way. That proposal and recommended approval went to the board and, in the course of discussions, it seems that board members raised concerns about the safety of having people cross that busy road to get onto the roundabout centre to attend commemorative events. At the board table, an alternative proposal was raised and that was to place the sites at Rond Terrace. The resolution as we have recorded it from the papers was to support the proposed memorials and to support the sites being identified either side of Rond Terrace. So I believe the article quite accurately records our decisions.

Senator HUMPHRIES: Is it then the case that the NCA, as it were, referred the matter to the Canberra National Memorials Committee or did the proponents take it to that committee?

Mr Rake : I do not know whose signature was on the bottom of the letter but, regardless, it went to the CNMC with the support of the NCA. If the article conveys the impression that we referred it, I certainly would not dispute that.

Senator HUMPHRIES: So a decision was made by the national memorials committee in March 2007 and then a further decision was made on August 2007 about the design intent of the memorials. The article says that the meeting in August 2007 of the national memorials committee had been called by the responsible minister, Mr Lloyd, on the recommendation of the NCA rather than by the secretary of the department of transport and regional services, Mr Taylor, as required by the national memorials committee ordinance. To your knowledge, is that true? And is that another deficiency in process which might have some bearing on the validity of the decisions made by the national memorials committee?

Mr Rake : I am sorry but I do not know whether that is true, although I would be very happy to find out and come back to you.

Senator HUMPHRIES: That would require legal advice, wouldn't it?

Mr Rake : Yes, the answer about whether there was a deficiency would require legal advice. I have no reason to doubt the accuracy of that. The author of that piece has written a number of articles. I have reviewed them all and so far I have not found any deficiencies in any of them other than some very minor errors in one which the author very quickly corrected.

Senator HUMPHRIES: I will not go through everything the article says, but it is then suggested that the process the NCA overviewed did not effectively determine the character or the design intent of these memorials until much later in the process. In fact, it goes on to say:

A proper and timely analysis of "character" would have examined the rationale for the memorials.

It then says effectively that did not happen. The record suggests that this was never done. Is that a fair criticism?

Prof. Aitkin : It is not an unfair criticism—would you like a double negative? There has been a very large number of memorials over the years, and none of them has attracted this amount of attention. If you looked at some of the earlier ones you would probably find the same rather informal way of doing things. The Prime Minister does not attend—instead it is someone representing the Prime Minister—and likewise for the Leader of the Opposition. I think you would be doing well to find an occasion on which the nominated people are actually there in person.

Until this particular one, a rather informal process had occurred. One of the things we have done in the NCA in the last three years is to say, 'We've got to make these processes much more formal, clear and transparent.' We have been doing that for three years. To repeat what I said earlier: were a proposal to come up today for another memorial somewhere and the national memorials committee asked us to comment on it, we would comment on it in a rather different way.

Senator HUMPHRIES: I accept that, but it still leaves open the question of what we do about this particular proposal.

Prof. Aitkin : Yes.

Mr Rake : Either this article or one of the others by the same author did point out a statement made by Mike Taylor, who was then Secretary of the Department of Transport and Regional Services. He reminded committee members—and I suspect that his comment was directed at the then Chief Executive of the NCA—that it is the committee on behalf of the parliament that takes responsibility for national memorials and that that is the proper order of things.

The question you asked had two elements. One is the physical form of the memorial, and one is the commemorative purpose. Even if we resume the secretariat, I would still put the view that it is the proper place of that committee—under a proper process, properly convened and with full membership—to decide the commemorative intent. I do believe that the community should have much more involvement in commenting the proposed location and physical character of a memorial.

Senator HUMPHRIES: Starting with having community representatives on the committee?

Mr Rake : Yes. When we resume the secretariat, one of the things we will do—and I indicated this at our public forum in April—is recommend the filling of all positions, including those of the two local members. But I think there would be a dangerous precedent if it were put to consultation that it is most likely to be the case that it will be the local community who will be most keenly interested in the commemorative intent of a proposal. This one is commemorating events that occurred 50, 60, 80 or almost 100 years ago. But if we were to look to a commemoration of Vietnam, in the early to mid 1980s there would still have been a fairly passionate debate. I think the parliament, parliamentarians and our elected representatives are best placed to steer that sort of decision in the national interest. When it comes down to location and character, yes, locals are probably disproportionately affected by the placement of memorials and should have a much greater say in pointing out potential issues about the placement and form.

Senator HUMPHRIES: Would you argue that that ought, ideally, to occur through a public consultation process broader than the one we are going to use for EPBC, which has limited bases for assessment of all criteria?

Mr Rake : One of the things that the NCA can do voluntarily, in preparing advice for the Canberra National Memorials Committee on the location and physical character of a memorial, is to conduct a public consultation process and to incorporate the views put to us and analyse those and include all of that in the advice that we give the committee.

Senator HUMPHRIES: I want to raise the criticism that the NCA has sidestepped its own guidelines for commemorative works in the national capital, which includes a mandatory criterion that a commemorative proposal must not duplicate the themes or subject matter of an existing commemorative site. The argument here of course is that the War Memorial itself commemorates the first and second world wars and therefore further memorials for those events are not necessary. What is your response to that?

Mr Rake : If that was us, that would be cited as an example of us obfuscating. They are guidelines. To the extent that there is a mandatory element in it, it can only be a mandatory guideline. There is an inconsistency in the notion of itself. Again, the Canberra National Memorials Committee, as the proper decision maker—

Senator HUMPHRIES: The NCA has these guidelines, not the memorials committee. These are the NCA's guidelines for community works. Presumably you have that decision to make as well?

Mr Rake : Those guidelines do not have any statutory force—and they are guidelines only.

Senator HUMPHRIES: But why do you issue them if you do not follow them?

Mr Rake : They are a tool to help people understand where particular proposals would be placed. Anzac Parade is for service and sacrifice in theatres of war—

Senator HUMPHRIES: Have you breached the guidelines? Is there a case for saying that the War Memorial's role in commemorating the first and second world wars invalidates, pursuant to the guidelines you have set for yourselves, the building of further memorials to the first and second world wars?

Mr Rake : If we start with the presumption that the War Memorial commemorates world wars I and II, yes, this proposal duplicates that commemoration and would be inconsistent with those guidelines.

Senator HUMPHRIES: Presuming that is the case, does it or does it not?

Mr Rake : I have not tested that. The decision was made and, as Professor Aitkin said, we are not setting about revisiting decisions of the authority, because the subsequent decisions by a higher power have already been made.

Prof. Aitkin : We should also say that what is said about the World War I and World War II proposed memorials could be said about almost everything on Anzac Parade—it is all commemorated in the War Memorial as well. There has been no objection, at least none that comes quickly to my mind, about the location or form of those memorials. It is fair to say that our predecessors did not think they were doing anything different from what had been done in the past. Our view is that they did not. That is not to say that time has not moved on and if there were to be further memorials—not necessarily war memorials but other memorials—the way we would deal with them would be slightly different.

Dr LEIGH: Mr Rake, can I take you back to something you said in answer to Senator Faulkner's question at a recent Senate estimates hearing on the subject of statutory NCA approval. You told Senator Faulkner there would be no issue with this approval given the recommendation the NCA had made to the Canberra National Memorials Committee. Can you take the committee through how the NCA made a recommendation to the memorials committee and what was taken into account?

Mr Rake : As I have put on public record before, there is not a clear evaluation process—there is not a detailed written evaluation of the matters considered by the board at the time, other than that they believed the site that they were recommending was appropriate, that it was consistent with the allowable uses under the National Capital Plan in that part of the national estate and that it was a proposal that the authority was happy to take ownership of once the physical form was complete. We would own the memorial and maintain it. The answer I gave Senator Faulkner was that, in recommending this proposal to the Canberra National Memorials Committee, the NCA has expressed a strong statement of in principle approval for the proposal. It is parallel to proposed works in the Parliamentary Zone where the Parliament Act has, in our view, the higher authority. Before proposals are tabled in each house of parliament the NCA expresses a view about whether it would be prepared to grant works approval. We then wait for parliament to express its view through each house and then we exercise our formal power on the instrument. The process here is parallel, although there is not any formal doctrine that says we must defer to the CNMC or the Parliament Act, but that is the practice that has emerged. So my answer to Senator Faulkner was that, by expressing our view of support, we stated that we are willing to provide works approval, subject to any technical deficiency that we find along the way. If we suddenly found that there would be an unacceptable traffic impact, that would be a technical deficiency that we would have to turn the proponents' minds back to and have them find a solution to.

Dr LEIGH: So traffic impact would be taken into account. What about impacts on views, including the views of residents in surrounding suburbs, were they taken into account?

Prof. Aitkin : Sorry, do you mean opinions or views?

Dr LEIGH: Visual views.

Mr Rake : The main visual assessment will be based on the heritage impacts. If this proposal were going to overshadow and have a very direct impact on adjoining properties, we would certainly take that into account, as we do for more major developments, but the fact that it would be within the line of sight from someone high on the hill who had a view down probably would not be a major criterion in the assessment.

Dr LEIGH: You mentioned in answer to Senator Faulkner that there was a character element. Does that require some assessment of public opinion?

Mr Rake : At the moment it does not, and that is the change I spoke about a few moments ago. Before we give future advice to the CNMC, the NCA would seek views on the character of a memorial. The process that has been used in the past is for the memorials committee to approve the commemorative intent and the location—and they do rely heavily on the advice of the NCA—but for the design or the character to be procured by design competition and for an independent jury to be used. That was certainly the case here. The Canberra National Memorials Committee are engaged in the development of the rules of the competition, the design brief that goes out, then the jury does its work, identifies a competition winner and recommends that to the Canberra National Memorials Committee for them to endorse as the final design or the character of the memorial.

Dr LEIGH: So the views of the local service community would not also have been taken into account? For example, the ACT branch of the RSL has passed a motion saying that it does not support the memorial, as I understand it.

Mr Rake : Not in a consultative manner. The then National President of the RSL was the chair of the competition jury. I guess to that extent we would expect that he would bring the views of the RSL to the table.

Senator HUMPHRIES: That is not quite true that the RSL said they do not support it. My reading is that they have adopted a neutral posture on it.

Dr LEIGH: My apologies. My advice was that the ACT branch of the RSL had discussed the issue at a council meeting in April and voted to offer no support for the—

Senator HUMPHRIES: That is right. They are not offering support but, as I understand it, they are not opposing it.

Dr LEIGH: Yes, thank you for the correction. Mr Rake, at Senate estimates you said that the NCA and the ACT government have 'inherently different interests when looking at Canberra'. Can you expand a little on what you meant by that?

Mr Rake : The question I was asked and to which I believe I gave that portion of the answer was about the elements of Canberra as a planned city and whether the NCA takes a strong view on I think environmental planning—my recollection may not be quite right there. But there are some elements that every city should take account of: sustainable design, healthy open spaces for its residents and good transport systems. They should exist in every city regardless of its size, whether it be a rural town or a national capital.

The things that the NCA are particularly interested in are those elements that are unique to Canberra, with its special role as the national capital. In trying to convey how we balance the interests of local residents and the nation as a whole, we tried to identify if there is a demonstrable national interest that is different to the interests of the local government and the local residents that requires our involvement. If there is not then we probably should not be involved in it. That is not to say that there is a deficiency in the local views, but there are some elements that are of national significance and that is where our role properly lies.

Dr LEIGH: I draw your attention to the suburb of Campbell and a letter that I understand a group of Campbell residents have written to the NCA. Can you clarify for me the role that the NCA has in regard to Campbell?

Prof. Aitkin : We both responded within 24 hours, I think, to that letter from the residents of Campbell. We are proposing a taskforce of the ACT government and the NCA to look at those issues. They are serious and proper issues and somebody needs to do something about it reasonably quickly. They are proposing a master plan but the problem with that is that if it is done well it takes a long time and the residents want fairly quickly some clear sense of what is likely to happen. So we thought a taskforce was the better way to go. We have had discussions already with the ACT government about that. I hope that we will be able to say something positive very soon.

Mr Rake : As to our particular role, the NCA has the planning approval power for most of the land surrounding Campbell. Of particular interest, the NCA controls planning along Constitution Avenue, which is a major road to the south of Campbell. Within the last decade we have proposed and proceeded with a major amendment to the National Capital Plan that would allow for major redevelopment and a larger scale of development along Constitution Avenue. So, one of the issues that the residents of Campbell are interested in is what that will mean for traffic movement and parking in their suburb.

There is potential for developments that we approve to have unintended negative impacts on traffic. It could block up the suburb; it could be used as a rat-run. To the extent that that happened, we control the cause but we do not control the solution. Within the suburb, planning is controlled by the ACT government and if a change were to be made to one of the roads to make it less attractive as a rat-run that would require the efforts of the ACT government. So the question the Campbell residents are asking, and it is a very good one, is: how are you two going to come together to make sure that decisions made here do not impact here and force another government to have to pick up the can? We think a taskforce would be good because we can identify issues in priority order. We should say that we think the taskforce should include Campbell residents so that they can identify the issues and help us to prioritise them.

Dr LEIGH: That is good to hear. Will that operate on an ongoing basis?

Mr Rake : I think it would be sensible. I do not know what the finish line would be, but at least until the majority of development on Constitution Avenue is complete. So I could see it being needed for the next three to five years at least.

Dr LEIGH: Would that complement public consultation processes taking place?

Mr Rake : Yes.

Prof. Aitkin : It would not replace it.

CHAIR: You have said that there is no requirement for community consultation with respect to the proposed memorials. But I do understand that the ACT residents' positions on the memorials committee were not filled. Is it really possible to say that there is not a requirement for community consultation if those positions are not filled?

Prof. Aitkin : Logically, yes, you could say that. But in fact there is no requirement on the NCA to engage in public consultation when it is asked by the Canberra National Memorials Committee to do something. We now would say that we regard public engagement as simply automatic when any major development is occurring, whoever is doing it. But we would have to say to the Canberra National Memorials Committee, 'We think this is a good idea.' It would be a guideline. We would say it is a good guideline that is worth following because if you do not follow it you would have the sort of fuss that has come up about the World War 1 and World War 2 memorials.

CHAIR: Mr Rake, I think you made reference to the process for proposed works within the parliamentary precinct, which the parliament clearly has an interest in. Dr Leigh raised the issue of views and clearly the heritage question is up for broader assessment. It strikes me that parliament would have an interest in things that impact on the vista right through to the War Memorial. The question of the heritage listing of around the lake is acknowledged, but clearly there is a wide range of construction that could take place. There is some ad hoc recognition of that vista from the War Memorial through to the parliament, but there does not seem to be a very holistic process around the heritage values that might be attached to that.

Mr Rake : That is very perceptive. It is actually a really good question. The Parliament House vista as a defined space is on the Commonwealth heritage list and has an element of formal protection, but it is not the view as you stand at the front of Parliament House. It presumes that your line of sight does not pass outside the outer rows of blue gums either side of Anzac Parade.

Prof. Aitkin : You are thought to be wearing blinkers.

Mr Rake : And very funny shaped blinkers because it extends out around part of the lake and then creeps in again. That is one of the main drivers for us working so closely with the department responsible for heritage—I will muck their name up, so I will not even attempt to get it right—to have a much wider assessment of Canberra for potential inclusion on the national heritage list because it could take account of that broader central national area and the elements of the plan. We think it is really worthwhile. The department has been working internally on the thesis that would guide this. Even within our constrained budget we are offering to allocate one of our human resources to help work on that nomination in the next financial year, so starting in two or three week's time.

CHAIR: Was there anywhere in the process up to this point that the scale of the memorials and their impact on the vista and those values were actually taken into account? Would the memorials committee have actually considered that as part of their remit, or would they have expected those issues to be taken care of by the National Capital Authority or through heritage assessment elsewhere?

Mr Rake : The Canberra National Memorials Committee did not consider it particularly, but it did rely on three other places for that evaluation to occur. One is within the NCA prior to any recommendation going up to the CNMC. I cannot find any advice of the NCA having conducted a heritage assessment of the location before recommending that location.

CHAIR: So you are saying that the memorials committee would have relied on the National Capital Authority to provide that advice, but the National Capital Authority did not provide any such advice.

Mr Rake : I cannot find any record of the authority overtly considering heritage impacts before it recommended that location.

Prof. Aitkin : It depends what sort of heritage impacts we are talking about. For example, if the view is a heritage impact then I think I am right in saying the National Capital Authority put up a mock-up on the site of how high and how large these memorials would be.

Mr Rake : That was to do with the character, not the location.

Prof. Aitkin : Yes, but it did give you a sense of how big they would be.

Mr Rake : Perhaps I will go on and explain the other two elements. The second point at which the CNMC relied on advice was during the design competition. In preparing the design brief the authority did actively consider potential heritage impacts and went through the mock-up stage.

CHAIR: So there was no problem with the scale of the—

Mr Rake : One was not seen at the time and the design jury obtained independent heritage advice. That heritage advice did note the potential for an impact on the vista.

CHAIR: Based on the scale?

Mr Rake : Based on the scale and the form. The heritage advice was obtained at a point where the jury had shortlisted down to three remaining entries and heritage advice was obtained in relation to each of those three. It identified that there was potential for an adverse impact on a vista.

CHAIR: Was that attached to any of the proposals or was it just attached to the note?

Mr Rake : It was within the working papers of the jury. It certainly would not have been listed as a headline item in any report that went to the Canberra National Memorials Committee but it was probably included within the jury report. The third element of heritage evaluation that the CNMC relies on is, of course, the formal EPBC referral process.

CHAIR: Have there ever been any reversals of the decisions or changes in the scope of decisions made by the memorials committee?

Mr Rake : I am not aware of an approval ever being withdrawn. To the extent that there have been changes, it would be by agreement with the proponent or at the instigation of the proponent.

Senator HUMPHRIES: Just to close off on the memorials, it has been pointed out in the article I referred to before that there were very few attendances by any of the politicians who notionally make up the majority of the Canberra National Memorials Committee. It is fair to say however—and I ask if you agree—that many members of this committee would be in touch with the decisions of the committee by looking at the papers sent out before it and providing input to those who they knew were attending it. In the same way, this committee does not always have all of its members present but still stays in touch with its work through the papers that are produced by the committee secretariat. That would be a fair description of the national memorials committee, would you not say?

Mr Rake : Very much so. Even where members of the committee who hold high positions elsewhere in the political system have been unable to attend, I have observed them having staff of their office attend to listen in, I guess with observer status.

Senator HUMPHRIES: So staff can attend on that basis.

Mr Rake : I have seen staff attend as observers. I have seen other parliamentarians ask questions that seem to be asked on behalf of other parliamentarians. When asked in Senate estimates about the workings of the committee, the Prime Minister and the Leader of the Opposition on that committee both are incredibly busy people and it is not surprising that they are unable to attend meetings. It is antiquated that this ordinance only allows decisions to be made face to face. We are working closely with the department preparing drafting instructions to have the ordinance changed to allow decisions to be taken on the papers, which I believe would enable a much wider engagement by the elected representatives. One of the very interesting points drawn out in that article is that, if all seats at the table were occupied, parliamentarians would have the majority at the table. That is probably not a bad aspiration for future decisions of the CNMC. It is properly within the purview of that committee to think about things like commemorative purpose. It would be useful to have parliamentarians represent the majority of the decision makers at the table at any time.

CHAIR: Just following on from that, this committee has a remit on matters within the parliamentary precinct, yet there is no overlap between this committee and the memorials committee. It seems that the structural problems in terms of engagement might be a little deeper, given the age of the ordinance.

Mr Rake : One of the mechanisms that we can use to bring that relationship closer is that, in conducting a public consultation before giving advice to the CNMC, the NCA can voluntarily come to this committee and offer a briefing and the committee could decide to conduct that briefing in open session, as we are today. I think that would be a really useful way for us to collect views from around the nation as well as share with the committee those views that we have heard from the local community.

Senator HUMPHRIES: Presumably, it would also be possible to change the terms of what was then an ordinance, now an act, to allow any of the politicians present to delegate their attendance at a meeting to another member of parliament.

Mr Rake : Yes, it would. I would be happy to take that on board.

Senator HUMPHRIES: In any future decision making that the NCA has to be involved in with respect to the concept of such memorials, you might be aware of an article written in the Canberra Times on 4 October last year by Sue Wareham and Brett Odgers—I think Mr Odgers is one of the people who is now bringing the heritage application forward—that laments aspects of these memorials for their potential to promote militarism. They said:

Will such a vista prompt—

This is the vista of these new memorials—

visions of a peaceful world? Or might it support a militaristic frame of mind and help lead to the repetitions of horrors past?

Are those the sorts of considerations that the NCA might take when deciding whether this memorial, or memorials of this kind, might be approved in the future?

Mr Rake : I think that argument is a case in point for why I believe the Canberra National Memorials Committee, acting on behalf of the parliament, should alone contemplate commemorative purpose. If we are to have a national memorial it needs to very clearly represent a key national interest, and I cannot think of a better way to determine that than through a committee and a decision that is primarily made by elected representatives from around the country. I would very happily support broad public consultation for location and character, noting that the local community would be closely involved in that, but when we are dealing with commemorative purpose I really do believe the best way forward is for our elected representatives to be able to hear views from across the country.

Senator HUMPHRIES: You are sort of flick passing the answer to that to the national committee. You do not have the final decision about these things, so you would not have to make those decisions.

Mr Rake : Certainly, with a large enough budget we could fly around the country and ask, but—

Senator HUMPHRIES: I would be concerned if you did take such matters into account.

CHAIR: Senator Humphries, I think we need to conclude shortly because we do need to finalise other business.

Senator HUMPHRIES: Can I clarify one small issue from what Dr Leigh raised, about Campbell. The residents that he referred to who are concerned about the development on Constitution Avenue say that, when representations were made in 2009 to the ACT government, the then Chief Minister suggested that the issues of parking or traffic problems should be raised with the NCA, but the NCA CEO—who was probably your predecessor, Mr Rake at that stage—advised that the traffic problems in Campbell were not the responsibility of the NCA. To be clear about what you have been saying, are you saying that there is no responsibility by the NCA, when assessing a development like the Constitution Avenue ones, of the traffic implications of such developments?

Mr Rake : I believe that letter to the Campbell residents was by my own hand rather than my predecessor's, so I take full responsibility for that. No, we very definitely do consider offsite impacts as part of the development approval, but what we cannot address at all is potential rat-running. We might undertake a traffic evaluation and we might believe on all the best modelling that people will travel down Anzac Parade and onto Constitution Avenue to get from Dickson to Russell. But if, after we have approved a development and had it built, the commuters find it is faster to run through Blamey Crescent in Campbell, through a suburban residential area, we then have no power to make any change to discourage that. If traffic-calming devices were to be put in place to make it slower for rat-runners, that would have to be done by the ACT government.

Senator HUMPHRIES: That was not quite my question. Obviously, if there is that sort of implication then the ACT has to deal with it.

Mr Rake : We definitely take account of offsite traffic and parking problems.

CHAIR: Thank you, Senator Humphries. We will need to conclude our questioning now because we have a small amount of business to conduct in the committee privately before question time. I thank you, Professor Aitkin and Mr Rake, for your attendance today and for giving evidence and I thank other members of the NCA. I thank members of the public and the media also for their interest this afternoon.

Committee adjourned at 13:45