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Sydney Harbour Federation Trust Bill 2000 [2001]

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1998-1999-2000

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

SYDNEY HARBOUR FEDERATION TRUST BILL 2000

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

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

Senator the Hon Robert Murray Hill)

 

 

 

 

 

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED

 



 

SYDNEY HARBOUR FEDERATION TRUST BILL 2000

 

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 objects are to:

·         acquire, hold and preserve Trust land for the benefit and inspiration of present and future generations;

·         remediate, rehabilitate, conserve and interpret that land in accordance with appropriate conservation and management plans;

·         protect and conserve the environmental significance of Trust land, including its natural, heritage, historic, indigenous and cultural significance;

·         ensure public ownership and control of Trust land;

·         maximise public access to Trust land;

·         conserve and manage Trust land consistently with such land becoming a national park, and in accordance with New South Wales law;

·         transfer right, title and interest in all Trust land to New South Wales within ten years for no consideration for inclusion in Sydney Harbour National Park or retention in public ownership by New South Wales for the benefit of the people of Australia; and

·         cooperate with the Commonwealth, New South Wales, local government bodies and community groups in furthering the above objects.

 

The Trust will be a transitional body, for a maximum of ten years, to ensure that the Commonwealth’s duty to rehabilitate five defence sites (listed in Schedule 1 of the Bill) is fulfilled, and that all the lands are transferred to New South Wales for incorporation into the Sydney Harbour National Park, or otherwise retained in public ownership by the State.  The Bill also provides for further Commonwealth lands around Sydney Harbour to be vested in the Trust before transfer to New South Wales within the ten-year life of the legislation.

 

The Trust will consist of a Chair and seven Members, appointed by the Minister for the Environment and Heritage after advertising for expressions of interest from suitable persons.  Three of these members are to be nominated by the Government of New South Wales (one of the New South Wales nominees being a representative of a relevant local government body).  One member is to be nominated by the New South Wales Aboriginal Land Council.  A full-time Executive Director is to be appointed to the Trust, and other staff and consultants may be hired.  Meetings of the Trust are generally to be held in public.

 

The Trust is to develop plans for the fives sites (Cockatoo Island, Georges Heights, Middle Head, North Head and Woolwich) within specified timeframes from the commencement of the Act (on which date the five listed sites vest in the Trust).  Plans must be developed with full community participation, consultation with the New South Wales Minister responsible for the Sydney Harbour National Park, endorsed by the Trust, and approved by the Minister for the Environment and Heritage.  Plans are subject to close public scrutiny throughout the process.  They are also disallowable instruments.

 

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

 

The Trust is subject to New South Wales law and may also enter into agreements with the Commonwealth, New South Wales and local government authorities for enforcement and other purposes.

 

The Commonwealth Government has established an interim Trust to commence planning and public consultation, and the Bill provides for the Commonwealth to be liable for any costs or liabilities incurred by the interim Trust.

 

 

FINANCIAL IMPACT STATEMENT

 

The Trust will receive $40 million from the Commonwealth towards the decontamination of Cockatoo Island.  A further $6 million has been allocated from the Federation Fund for the 2000/2001 and 2001/2002 financial years.  The Bill allows the Trust to receive parliamentary appropriations, and to accept gifts, grants, bequests and devises made to it.  The Trust may also borrow monies but may not use Trust land as security.

 

 



 

SYDNEY HARBOUR FEDERATION TRUST BILL 2000

 

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 2000 .

 

Clause 2 - Commencement

2                     This clause provides that the Act will commence on a day to be fixed by proclamation, but if not effected earlier, it will be proclaimed automatically six months from receiving Royal Assent.

 

Clause 2A - Purpose of the Act

3          This clause specifies the purpose in establishing the Sydney Harbour Federation Trust. This includes rehabilitation of Trust land, and transfer of the land to New South Wales for incorporation into the Sydney Harbour National Park.  This is to occur within ten years using Commonwealth funding.

 

Clause 3 - Definitions

4          This clause defines a number of key terms used in the Bill.

 

Clause 4 - Act binds the Crown

5          This clause which binds the Crown in each of its capacities has the effect of binding the Commonwealth and the States.

 

Part 2 - Establishment of the Trust

 

Clause 5 - Establishment

6          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

7          This clause sets out the objects of the Trust when managing Commonwealth places in Sydney Harbour.  Broadly the Trust will rehabilitate and conserve Trust land with a view to ensuring public ownership and control of the land, maximise public access to it and, within ten years, give the land (for no consideration) to New South Wales for inclusion in the Sydney Harbour National Park or retention in public ownership.  The Trust will cooperate with other Commonwealth, State and local government bodies and community groups to ensure these objectives are met.

 

Clause 7 - Functions

8          This clause sets out all the functions of the Trust that will enable it to meet its objects.  In doing so, the Trust is required to develop and implement plans for Trust land in accordance with specified references, and to conserve and manage the land, in consultation with the community, and with a view to the land becoming a national park.  The clause also enables the Trust to do certain things on Trust land before a plan takes effect for that land, subject to the limitations imposed by clause 38A.  Other functions are specified.

 

Clause 8 - Powers

9          This clause sets out the powers of the Trust enabling it to do anything that is necessary to carry out its objects and perform its functions.  Among the specified powers, the Trust can enter into short-term leases for up to 10 years from the commencement of the Act, and raise money by other specified means.  It cannot use Trust land as security for borrowings.  The Trust has no power to sell or transfer an interest in Trust land (other than to New South Wales, and this must be in accordance with the objects, functions and powers).

 

Clause 9 - Minister may give directions

10        This clause provides that the Minister may give written directions to the Trust in accordance with the objects, and that the Trust must comply with those directions in a way that is consistent with its objects, functions and powers.  The Minister is, however, restricted to giving directions only where the Trust fails to perform its duties and only where it is reasonable to give such a direction.  The Minister must also have regard to relevant New South Wales laws and must publish the reasons for his directions.  Note that Clause 70 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

11        This clause provides that the Trust shall consist of eight persons - the Chair and seven other members.

 

(Clause 11 omitted)

 

Clause 12 - Appointment of members

12        This clause provides that the Minister must appoint members in writing.  Three (including one local government representative) of these members are to be nominated by New South Wales, and one nominated by the NSW Aboriginal Land Council.  The other four, including the Chair, are Commonwealth nominees.  Note however, that the Minister must not appoint any members unless he/she has first advertised publicly for expressions of interest from suitable persons.  Note also that no more than three members of the Trust may be public employees (whether Commonwealth, State/Territory or local government).

 

Clause 13 - Terms of office and conditions of appointment

13        Members of the Trust are to be appointed on a part-time basis for a period not exceeding three years.  The Minister may reappoint members.  Members may not engage in any paid employment or conduct that conflicts, or may conflict, with the proper performance of the member’s duties.  Remuneration is specified, and terms and conditions can be specified by Regulation.

 

(Clauses 14, 15, 16, 17, 18 and 19 omitted)

 

Clause 20 - Termination of appointment of members

14        This clause sets out the circumstances under which a member’s appointment may be terminated, and also allows a member to resign in writing.  The Minister must first consult New South Wales before terminating the appointment of one of its nominees.  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.  Furthermore, clause 56A requires disclosure of pecuniary interests and failure to do so is a ground for termination of appointment.



 

Part 4 - Trust land

 

(Clauses 21 and 23 omitted)

 

Clauses 22, 24 and 25 - Vesting of Trust land, Transfer of Trust land, Lands Acquisition Act not to apply

15                 The effect of these clauses is that all land listed in Schedule 1 vests in the Trust from the commencement of the Act, and that the regulations may prescribe other Commonwealth land that may later be vested.  In the latter case, the land is vested from the date specified in the required Gazette notice placed by the Minister.  The specified Commonwealth property rights in the land will vest in the Trust without any legal formalities (conveyance, transfer or assignment).  The Trust will hold the land for and on behalf of the Commonwealth until remediation and rehabilitation is completed, when the land must be transferred to New South Wales.  Prior to this, land may be transferred to New South Wales, with its consent.  In any event, all land must be transferred to New South Wales before the tenth anniversary of the Act’s commencement.  Disposal by the Trust of specified property rights is specifically excluded from the operation of the Lands Acquisition Act 1989 .

 

Part 5 - Plans

 

Clause 26 - Trust to prepare plans

16        The Trust is required to prepare plans (as defined in clause 3) for the Trust land at Middle Head, Georges Heights and North Head within 18 months.  The Trust is given 2 years to prepare plans for Woolwich and Cockatoo Island.  The Minister may extend these periods if the Trust applies for an extension and providing the Trust has notified the public of its application and reasons for seeking an extension.

 

Clause 27 - Plan areas

17        ‘Plan area’, referred to in clause 3, is defined in this clause as the whole of a Trust land site (identified in Schedule 1 or in the regulations); a plan cannot apply to a part of such a site.  A plan may, however, apply to other Sydney Harbour land that has not vested in the Trust.  In that case, the plan will have no effect over that area until transfer to the Trust has taken place.

 

Clause 28 - Content of plans

18        This clause ensures that plans must accord with the objects of this legislation and defines what they must contain and the considerations that the Trust must have in preparing a plan.

 

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

19        These clauses provide for full community participation in the 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 public submissions (that must be made by a specified date), advice or recommendations from an advisory committee (established under clauses 57 and 58), and any other submissions.

 

Clause 31 - Minister to consider draft plans

20        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 must refer the draft plan to the State Minister responsible for the Sydney Harbour National Park, and take into account the State Minister’s comments.  The Minister may then support the draft plan, or suggest alterations, or make recommendations to the Trust.

 

Clause 32 - Trust to consider draft plan

21        Once the Minister has considered the draft plan and suggested any alterations or made any recommendations, the Trust must consider the draft plan again, together with the written report it made to the Minister on its public consultations, any suggested alterations or recommendations of the Minister or the State Minister, any advice or recommendations from advisory committees, any public submissions, and the objects, functions and purpose of the Act.  Following this, the Trust must endorse the plan with or without alteration, and then publish its decision and reasons for its decision.  The endorsed plan is then to be forwarded to the Minister for approval.

 

Clause 33 - Minister to approve plans

22        The Minister may approve or reject the plan but, if he/she rejects it, the Minister must not do so unreasonably, and must act in accordance with the Act, and give public notice explaining why the plan has been rejected.

 

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

23        If a plan is approved by the Minister, the Trust is required to give public notice of its approval.  The plan will come into force for the plan area on the date specified in the public notice.  Note, however, that clause 27 contains an exception to this rule for land that has not vested in the Trust.



 

Clause 36 - Amendment to plans

24        Amendments to 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.  If the amendment includes a change to the plan area (refer to clause 27), the Minister must first of all approve that change.

 

Clause 36A - Plans to be disallowable

25        Parliament may disallow a plan, including an amendment to a plan.

 

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

26        The Commonwealth, the Trust and other Commonwealth bodies are bound to act in accordance with an approved plan in the area to which the plan applies, regardless of whether the plan is fully in effect for the whole plan area (refer to clause 27).  This does not mean that any agency is authorised or required to act illegally.

 

Clause 38 - Implementation of plans

27        The Trust is required to expedite implementation of plans, employing competent and skilled people to do so.  This clause provides deadlines for implementation of plans (5 or 10 years after commencement of the Act) for specified sites listed in Schedule 1.  The Trust may apply to have the 5-year deadlines extended.  (Note that clauses 34 and 35 provide procedures for date of effect for a plan).

 

Clause 38A - Transitional-activities before plans take effect

28        The Trust may undertake specified activities on Trust land before a plan has been approved for that land.  The plan is the essential instrument that determines how Trust land will be managed and what activities are permitted on the land.  During the time permitted under clause 26 for the development of plans, there are some legitimate activities that the Trust must be able to perform.  Broadly, these activities are performing essential maintenance and security, granting short-term leases and licences, and undertaking works to ensure public health and safety.  In doing any of these specified activities, the Trust is required to ensure that such activities do not cause significant damage and are not prejudicial to future management decisions determined under the planning process.



 

Clause 38B - Transitional-leases and licences granted before plans take effect

29        This clause is, like clause 38A, transitional and relates to leases and licences granted by the Trust before a plan takes effect for an area.  Leases and licences must be restricted or dealt with as specified or they can be void by operation of subclause 38A(6).  Where a plan takes effect and a lease or fixed term licence is in force, the plan will prevail except to the extent that it interferes with the operation of the lease or licence.

 

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

30        These clauses deal with the appointment, duties, 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, 50A, 50AA, 51, 52, 53, 54, 55 and 56, Times and places of meetings, Minutes of meetings, Meetings to be public, Notice of meetings, Presiding at meetings, Quorum, Voting at meetings, Conduct of meetings, Minutes of meetings and other documents

31        These clauses deal with meetings of the Trust that must be held at least four times per year.  Trust meetings are to be open to the public unless it is in the public interest that the Trust meets in private.  Minutes must be kept of all meetings, and the minutes must be publicly available, including on the Internet.  The Trust is required to make publicly available all consultants’ reports, public submissions, plans of all types and any other relevant documentation.  The intention is that everything the Trust does is in full public knowledge and open to scrutiny.  The Trust may reasonably regulate the proceedings of its meetings in accordance with an adopted code of practice.

 

Clause 56A - Disclosure of pecuniary interest

32        If a member, or any relative or business associate of the member, has any actual or potential financial interest in a particular matter being discussed at a Trust meeting, the member must declare that interest and not take part in the discussions or voting.

 

Part 8 - Advisory committees

 

Clause 57 - Community advisory committees

33        This clause provides that community advisory committees must be established by the Trust for each plan area.  Appointment of persons to each committee is by the Trust, and the number of persons is left to the discretion of the Trust, but the persons must have relevant knowledge or experience and must include nominees of the Defenders of Sydney Harbour Foreshores (a Sydney-based non-government organisation) and the relevant local government body.  The Trust must consult the local community before appointing a committee.  The Trust and each committee must together establish the rules for the way in which the committee will operate.  The Trust is required to consider any advice or recommendations from the committees.  It is intended that the committees would be voluntary bodies.

 

Clause 58 - Technical advisory committees

34        This clause provides that one or more technical advisory committees must be established by the Trust.  Such committees must consist of appropriately qualified or experienced persons to advise the Trust on specified technical matters.  The Trust may direct the way in which a technical advisory committee operates.  It is intended that these committees would be voluntary bodies.  The Trust must consider any relevant advice or recommendations from the committees.

 

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

35        It is intended that the Trust should be largely reliant on financing through Parliamentary appropriations.  The Trust may borrow money from the Commonwealth or other sources with the Minister’s approval but may not use Trust land as security.  Note that clause 8 also allows the Trust to accept gifts, grants, bequests and devises made to it.  Written approval of the Minister is required before the Trust may enter into contracts involving payment or receipt of more than $1 million.

 

36        Clause 61 provides that the Commonwealth cannot recover from the Trust any costs or liabilities incurred by the Commonwealth, before or after the commencement of this Act, in relation to the interim Trust.  As noted in clause 3, the interim Trust is an advisory body established by the Commonwealth to commence planning and public consultation in respect of certain Sydney Harbour land.

 

37        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

38        This clause provides for the Act to be repealed on the tenth anniversary of the commencement of the Act, or on an earlier date specified by the Minister if all land has been transferred to New South Wales.  As indicated in clause 2A, 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.  The Trust must complete its task within ten years.  After that time, if not before, all land will be transferred to the New South Wales government for inclusion in the Sydney Harbour National Park or otherwise retained in public ownership by New South Wales.

 

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

39        These clauses provide for the Minister to ensure that all Trust assets are transferred to New South Wales and, if the Trust has any liabilities, that these become the responsibility of the Commonwealth.  The Minister is required to publish declarations about these transfers of assets and liabilities in the Gazette .

 

(Clause 69 omitted)

 

Part 11 - Miscellaneous

 

Clause 70 - Annual reports

40        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 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 and details of all contracts with consultants, valued at $5,000 or more.

 

Clause 71 - New South Wales laws to apply

41        The Trust is subject in its operations to all New South Wales laws.



 

Clause 72 - Delegation

42        This clause enables the Trust to delegate its powers and functions only to the Executive Director.  The Executive Director must report regularly to the Trust on the exercise of the delegated powers and functions and, in case there should be any doubt, this clause emphasises that the Executive Director must comply with the legislation and the terms of the delegation.

 

Clause 73 - Regulations

43        This clause provides for Regulations to be made under the Act.  Amongst other things, the Regulations will specify any additional lands to be vested in the Trust, and any details, additional to those specified in Clause 28, of the content of plans.  The Regulations will also enable arrangements to be made with Commonwealth and State agencies (including relevant local councils) for enforcement purposes.

 

Schedule 1 - Trust lands

44        A Schedule of the initial five sites that are to be vested in the Trust is included.