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Sydney Harbour Federation Trust Bill 2000 [2001]

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1999

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

SYDNEY HARBOUR FEDERATION TRUST BILL 1999

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by Authority of the Minister for the Environment and Heritage

Senator the Hon Robert Hill)

 



 

SYDNEY HARBOUR FEDERATION TRUST BILL 1999

 

OUTLINE

 

The Commonwealth Government, in its 1998 election commitment, Protecting the Sydney Harbour Foreshore , stated that it was committed to preserving the Sydney Harbour foreshore for future generations.  The Government announced that, as the Department of Defence relocates from certain sites around Sydney Harbour, it would establish a Trust to assume management and planning responsibilities for those sites.

 

The object of this Bill is to establish the Sydney Harbour Federation Trust.

 

The Trust will be required to manage the sites with the objectives of:

·         ensuring that management of Trust land contributes to preserving the amenity of the Sydney Harbour region;

·         conserving the environmental and heritage values of Trust land, and establishing suitable land as a park;

·         maximising public access to Trust land; and

·         cooperating with other Commonwealth, New South Wales and local government bodies.

 

The Trust will be a transitional body to ensure that the Commonwealth’s duty to rehabilitate the current defence sites is fulfilled, and that they are returned to the people of Australia in good order and with a sustainable financial base for their ongoing management.

 

The Trust will consist of a Chair and five Members, appointed by the Minister for the Environment and Heritage.  The Government of New South Wales will be invited to nominate two Members for appointment to the Trust.  A full-time Executive Director is to be appointed to the Trust, and other staff and consultants may be hired.

 

The Bill provides for the Trust to develop management plans for the sites within 18 months of the land being vested in the Trust.  Management plans must be developed with full community participation, and are subject to approval by the Minister for the Environment and Heritage.

 

The Bill provides that the Trust will establish a community advisory committee in respect of each management plan area, for the purpose of providing advice to the Trust on issues relevant to the management plan area.  The Trust must consider the advice or recommendation of these committees.  Additionally, the Trust may establish a technical advisory committee.

 

The Trust is expected to work in close cooperation with the New South Wales government and local government authorities, and is fully empowered to do so.

 

Due to the need to commence management planning as soon as possible for five Sydney Harbour Defence sites (North Head, Georges Heights, Middle Head, Woolwich and Cockatoo Island), the Minister for the Environment and Heritage issued a media release, on 13 March 1999, announcing that the Commonwealth Government would establish an interim Trust to commence planning and public consultation.  The Bill provides for actions undertaken by the Commonwealth on behalf of the interim Trust in relation to a management plan to be considered as having been performed by the Trust.

 

 

FINANCIAL IMPACT STATEMENT

 

The Trust will receive $40 million from the Commonwealth towards the decontamination of Cockatoo Island.  The Bill provides a range of measures to allow the Trust to develop a sustainable financial base.  This will include the ability to take advantage of economic opportunities, consistent with maintaining the amenity and environment and heritage values of the Trust lands.  The Trust will be given the capacity to borrow on commercial terms, with the approval of the Minister for Finance and Administration.

 

 

 



 

SYDNEY HARBOUR FEDERATION TRUST BILL 1999

 

NOTES ON CLAUSES

 

The Bill is for an Act to establish the Sydney Harbour Federation Trust, and for related purposes.

 

Part 1 - Preliminary

 

Clause 1 - Short title

1                     This clause provides for the Act to be cited as the Sydney Harbour Federation Trust Act 1999 .

 

Clause 2 - Commencement

2                     This clause provides that the Act will commence on a day to be fixed by proclamation, but not more than six months after receiving Royal Assent.

 

Clause 3 - Definitions

3                     This clause defines a number of terms used in the Bill, including the “interim Trust” which the Commonwealth established to commence planning and public consultation on five defence sites: North Head, Georges Heights, Middle Head, Woolwich and Cockatoo Island.

 

Clause 4 - Act binds the Crown

4                     This clause means that the Act binds the Commonwealth and the States.

 

Part 2 - Establishment of the Trust

 

Clause 5 - Establishment

5                     This clause provides for the establishment of the Sydney Harbour Federation Trust as a body corporate with perpetual succession.  The Trust may have a common seal, and may sue or be sued in its corporate name.  Any document bearing the seal of the Trust is to be presumed to be duly sealed.  The Trust is subject to the Commonwealth Authorities and Companies Act 1997 .

 

Clause 6 - Objects

6                     This clause sets out the objects of the Trust when managing Commonwealth places in the Sydney Harbour region.  The Trust will ensure that the management of Trust land contributes to the amenity of the Sydney Harbour region.  It will conserve environmental and heritage values of the land, maximising public access whenever possible.  It will cooperate with other Commonwealth, State and local government bodies to ensure these objectives are met.

 

Clause 7 - Functions

7                     This clause sets out all the functions of the Trust that will enable it to meet its objects.  Broadly, the Trust is required to hold and manage Trust land in accordance with management plans that it has developed in consultation with the community.

 

Clause 8 - Powers

8                     This clause sets out the powers of the Trust.  The Trust should be able to do anything that is necessary or convenient to be done for, or in connection with, performing its functions.  The intention is that the Trust should be financially independent and able to ensure that management of Trust land is economically sustainable into the future.

 

Clause 9 - Minister may give directions

9                     This clause provides that the Minister may give written directions to the Trust, and that the Trust must comply with those directions.  Such directions cannot be contrary to the powers and functions of the Trust.  This is a fairly standard clause in legislation that enables the Minister to issue instructions where unforeseen circumstances arise that require ministerial direction.  Note that Clause 71 requires the text of any Ministerial directions to be recorded in the annual report of the Trust.

 

Part 3 - Constitution of the Trust

 

Clause 10 - Membership of the Trust

10                 This clause provides that the Trust shall consist of six persons - the Chair and five other members.

 

Clause 11 - Invitations to NSW to recommend members

11                 This clause provides for the Minister for the Environment and Heritage to invite the New South Wales Government to recommend persons to be appointed to two membership positions on the Trust.  This recognises the interest of New South Wales in the management of the land and the Commonwealth commitment to working closely with the New South Wales Government.  The intention is that the Trust should always have two members who have been recommended by New South Wales.  A time-frame of two months for New South Wales to respond to an invitation to recommend persons is imposed so that the Minister is in a position to ensure that there is a correct balance of “suitable” persons, as required under Clause 12.  However, the Minister is entitled to appoint the four Commonwealth members before the two-month period has elapsed.



 

Clause 12 - Appointment of members

12                 This clause provides that the Minister must appoint members in writing.  He/she should only appoint persons that have relevant qualifications and experience, and no more than half the members of the Trust may be public employees (whether Commonwealth, State/Territory or local government).

 

Clause 13 - Terms of office of members

13                 Members of the Trust are to be appointed on a part-time basis for a period not exceeding three years.  The Minister may, however, reappoint members for further terms in accordance with subsection 33(4A) of the Acts Interpretation Act 1901 .

 

Clause 14 - Acting appointments

14                 The Minister may appoint a member to act as the Chair when there is no Chair, or the Chair is absent.  Should there be some irregularity in the appointment of an Acting Chair, it will not invalidate any decision or action of the Acting Chair.

 

Clauses 15, 16, 17, 18, 19 and 20 - Additional terms and conditions of appointment of members, Outside employment of members, Remuneration and allowances of members, Leave of absence, Resignation, and Termination of appointment of members

15                 These clauses relate to terms and conditions of appointment.  Note that members are subject to the Commonwealth Authorities and Companies Act 1997, and are required to disclose material personal interests under section 21 of that Act.

 

Part 4 - Trust land

 

Clauses 21, 22, 23, 24 and 25 - Minister may vest land in the Trust, Vesting of Trust land, Minister may make arrangements, Transfer of Trust land, Lands Acquisition Act 1989 not to apply

16                 These clauses relate to the vesting of land in the Trust and allow the Commonwealth to transfer sites to the Trust progressively as Defence relocates.  Other Commonwealth sites in the Sydney Harbour region may also be vested in the Trust.  The land is vested when the Minister places a notice in the Gazette. All right, title and interest that the Commonwealth holds in the land vests in the Trust without any conveyance, transfer or assignment, from the date specified in the Gazette notice, and the Trust will hold that land for and on behalf of the Commonwealth.



 

17                 If there is an existing lease or agreement relating to land to be vested in the Trust, the Minister may recognise that agreement in writing.  The agreement will then continue to have effect with the Trust substituting for the Commonwealth as a party to the agreement.

 

18                 Although the Trust has ten years to rehabilitate the sites and return them to the people of Australia, this task may be accomplished sooner.  Clause 24 allows the Trust to transfer the freehold interest in any Trust land with the approval of the Minister.  While much of the land will be transferred to New South Wales, some land may be identified in the management planning process as unsuitable for park or community use, and sold.

 

Part 5 - Management plans

 

Clause 26 - Trust to prepare management plans

19                 The Trust is required to prepare management plans for any land within 18 months of that land being vested in the Trust, although the Minister may extend this period if the Trust applies for an extension.

 

Clause 27 - Management plan areas

20                 This clause recognises the need for a holistic approach to management of the sites and the possibility of combining certain sites, for example Middle Head and Georges Heights.  As the transfer of land to the Trust will be staged due to a continuing Defence need to utilise parts of some sites, it is important that the management plans also cover not only Trust land, but also land to be vested in the Trust.  The management plans will have no effect over an area that is not vested in the Trust until that area is actually transferred to the Trust.

 

21                 It also allows the Trust to consider other Commonwealth places that may not be vested, and enables management planning for a Trust site to cover other nearby Commonwealth sites.

 

22                 The Minister must approve a management plan area before a management plan is prepared for that area.  The management plan area may be amended, with the Minister’s approval, before the draft plan for the area is approved.

 

Clause 28 - Content of management plans

23                 This clause ensures that management plans must accord with the objects of this legislation and defines what they must contain.  The content of plans will be expanded by regulation and endeavour to complement existing New South Wales processes.

 

Clauses 29 and 30 - Consultation on proposal to prepare draft management plan, Consultation on draft management plan

24                 These clauses provide for full community participation in the management planning process.  Persons may make written submissions on both the initial proposal to draft a plan and on the draft plan itself.  The Trust is required to take into account the submissions.

 

Clause 31 - Minister to approve management plans

25                 All draft plans are required to be submitted by the Trust to the Minister, together with a report on all public consultations.  The report would be a summary of the main representations and issues raised.  The Minister may approve or reject the plan, or refer it back to the Trust for alteration and/or further public consultations.

 

Clause 32 - Action on referral by Minister

26                 This clause describes the actions that must be taken by the Trust if the Minister refers a management plan back to it.

 

Clause 33 - Rejection of draft management plan

27                 If the Minister rejects a draft management plan, the Trust is required to prepare a new draft following all the consultation procedures that were required for the initial draft.

 

Clauses 34 and 35 - Notification of management plan, Commencement of management plan

28                 These clauses specify the procedures for notifying that a management plan is approved and when it comes into force.

 

Clause 36 - Amendment to management plans

29                 Amendments to management plans may be prepared by the Trust following all the procedures for public consultation and ministerial approval as required for the drafting of the initial plan.

 

Clause 37 - Commonwealth etc. to act in accordance with management plans

30                 The Commonwealth, the Trust and other Commonwealth bodies are bound to act in accordance with an approved management plan in the area to which the plan applies, regardless of whether the plan is fully in effect for the whole management plan area.  This does not mean that any agency is authorised or required to act illegally.



 

Clause 38 - Transitional-Interim Trust actions

31                 On 13 March 1999, the Minister for the Environment and Heritage issued a media release announcing that the Commonwealth Government would establish an interim Trust to commence planning and public consultation for five Sydney Harbour Defence sites (North Head, Georges Heights, Middle Head, Woolwich and Cockatoo Island).  This clause provides for actions undertaken by the Commonwealth on behalf of the interim Trust (prior to enactment of this legislation) in relation to a management plan to be considered as having been performed by the Trust.  Should any Commonwealth actions in relation to management plans be contrary to the legislation, the Trust would be deemed not to comply and would need to rectify the situation.

 

Part 6 - Executive Director, staff and consultants

 

Clauses 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 - Executive Director, Duties of Executive Director, Term of office of Executive Director, Acting appointments, Additional terms and conditions of appointment of Executive Director, Outside employment of Executive Director, Leave of absence, Resignation, Termination of appointment of Executive Director, Employees, Consultants

32                 These clauses deal with the appointment, terms and conditions, etc., of an Executive Director and other staff or consultants.  A full-time Executive Director, who is not a member of the Trust, is to be appointed by the Minister.  The Trust may employ additional staff or engage consultants as considered necessary.

 

Part 7 - Meetings of the Trust

 

Clauses 50, 51, 52, 53, 54, 55 and 56, Times and places of meetings, Notice of meetings, Presiding at meetings, Quorum, Voting at meetings, Conduct of meetings, Resolutions without meetings

33                 These clauses deal with meetings of the Trust that must be held at least four times per year.  Trust meetings are not intended to be public meetings, but the Trust may regulate the proceedings of its meetings as it sees fit.



 

Part 8 - Advisory committees

 

Clause 57 - Community advisory committees

34                 This clause provides that community advisory committees must be established by the Trust for each management plan area.  Appointment of persons to the committee is by the Trust, and the number of persons is left to the discretion of the Trust.  The committees are likely to vary in size from area to area, but each should be representative of all the local interests, whilst not becoming unwieldy.  It is intended that the committee would be a voluntary body.  The Trust is required to consider any advice or recommendations from the committees.

 

Clause 58 - Technical advisory committee

35                 This clause provides that a technical advisory committee may be established by the Trust.  Such a committee, if established, must consist of appropriately qualified or experienced persons to advise the Trust on specified technical matters.  It is intended that the committee would be a voluntary body.  The Trust must consider any relevant advice or recommendation by the committee.

 

Part 9 - Finance

 

Clauses 59, 60, 61, 62, 63, 64 and 65 - Appropriation of money, Application of money, Interim Trust costs etc., Borrowing, Trust may give security, Contracts, Liability to taxation

36                 Whilst it is intended that the Trust should be self-funding, these clauses relate to the financing of the Trust through Parliamentary appropriations and the borrowing of money from the Commonwealth or other sources.  The Minister for Finance and Administration has responsibility for these matters.  Written approval of the Minister for the Environment and Heritage is required before the Trust may enter into certain contracts or leases.

 

37                 Provision is made in clause 61 for the Trust to be liable for costs incurred by the Commonwealth in establishing an interim Trust prior to commencement of this legislation (refer to explanation of Clause 38 above).  Until the Trust is established by legislation and has become financially viable, the Commonwealth has provided monies to implement the decisions of the interim Trust.  The monies will need to be repaid in due course.

 

38                 Although clause 65 states that the Trust is not subject to taxation, some other Commonwealth legislation, such as the Fringe Benefits Tax Assessment Act 1986 , explicitly overrides this provision.



 

Part 10 - Repeal of this Act

 

Clause 66 - Repeal of this Act

39                 This clause provides for the Act to be repealed as soon as practicable after ten years.  The Trust will be a transitional body to ensure that the Commonwealth’s duty to rehabilitate the current defence sites is fulfilled and that they are returned to the people of Australia in good order and with a sustainable financial base for their ongoing management.  The intention is that the Trust should complete its task within ten years.  After that time, the Commonwealth intends to transfer suitable lands to the New South Wales government for inclusion in the Sydney Harbour National Park.  The future management of other lands will be considered at that time.

 

Clauses 67, 68 and 69 - Transfer of assets, Transfer of liabilities, Residual assets and liabilities

40                 These clauses provide for the Minister to declare what is to be done with any assets or liabilities that the Trust may have at the time of winding-up.  The declarations are to be published in the Gazette .

 

Part 11 - Miscellaneous

 

Clause 70 - Annual reports

41                 The Trust is required to report annually to Parliament under the Commonwealth Authorities and Companies Act 1997 .  Clause 1 of Schedule 1 to that Act requires “a report of operations”, therefore, as management of the land and consultation are part of the functions of the Trust, these matters would need to be covered in the reports.  Furthermore, an update on the condition of management plan areas must also be presented in the reports, together with any written directions that have been made during the year by the Minister to the Trust.

 

Clause 71 - Exemption from certain State laws

42                 This clause ensures that the Trust is not constrained in its activities by State laws that might affect the management of the land.  It is not the intention to circumvent State laws but, in accepting its responsibility to secure the future of the sites, the Commonwealth believes that the Trust must be able to operate with a certain degree of autonomy.  The Trust is expected to work in close cooperation with the New South Wales government, and is fully empowered to do so through its objects (clause 6) and powers (clause 8).  There is also a strong commitment to public consultation in the development of management plans for each site (clauses 29 and 30), and management plans will be enforced through the Regulations.

 

Clause 72 - Delegation

43                 This clause enables the Trust to delegate its powers and functions to the Executive Director, an employee of the Trust, or a senior officer of the Department of the Environment and Heritage.  Such power of delegation is considered prudent for efficient operation of the Trust.

 

Clause 73 - Regulations

44                 This clause provides for Regulations to be made under the Act.  Amongst other things, the Regulations will specify any details, additional to those specified in Clause 28, of the content of management plans and will specify and give effect to regulatory and enforcement measures, including the appointment of wardens and rangers.  The Regulations will also enable arrangements to be made with Commonwealth and State agencies for enforcement purposes.