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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

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

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

Senator the Hon Robert Murray Hill)

 

 

 

 

36627    Cat. No. 00 1243 5    ISBN 0642 464162



SYDNEY HARBOUR FEDERATION TRUST BILL 2000

OUTLINE

The purpose of these amendments is to restore the Government’s original intentions in establishing a Sydney Harbour Federation Trust whilst accommodating as many as possible of the changes that were introduced by the Senate.

The Bill in its current form has introduced several concepts that are not consistent with the existing Government policy on protecting the Sydney Harbour foreshore.  These concepts relate primarily to all Trust land being designated for incorporation in the Sydney Harbour National Park; the prohibition on the sale of any land; and requiring the Trust to comply with certain State laws.

Furthermore, the Bill in its current form has significant legal problems.  The major concerns relate to conceptual coherence, constitutional validity and legal redundancy and inconsistency.  For this reason, it has been necessary to introduce amendments to whole Parts of the Bill and add in many of the Senate’s changes, rather than amend each clause.

A preamble has been inserted to clarify the Commonwealth’s intentions in establishing the Trust.

Two Schedules to the Bill have been included that list the initial properties that are to be transferred to the Trust upon its establishment, although transfer will only be able to take place progressively as Defence relocates.  Properties listed in Schedule One cannot be sold by the Trust; properties listed on Schedule Two may be sold if the approved plan relating to those properties has identified sale as the preferred option.

A restriction has been introduced to ensure that, where significant environmental and heritage values are identified in the plan, Trust land cannot be disposed of, other than to the Commonwealth, New South Wales or relevant councils (local government).

The Bill allows 2 years for the Trust to develop plans for the conservation and management of its lands and the Trust is restricted to operating within the confines of the plans.

Membership of the Trust has been expanded to seven.  The extra person is to be a representative of indigenous interests.

 

FINANCIAL IMPACT STATEMENT

There is no financial impact arising from these amendments.



 

SYDNEY HARBOUR FEDERATION TRUST BILL 2000

NOTES ON AMENDMENTS

 

Amendment 1

1 This amendment inserts a Preamble to explain in broad terms the reasons and purpose in establishing the Trust.

Amendment 2 (deletes Clause 2A)

This amendment removes clause 2A (Purpose of the Act) which contains concepts that are inconsistent with Government policy.  The Preamble provides an adequate general statement of the purpose of the Bill.

Amendment 3 (amends Clause 3)

All definitions of terms used in the Bill have been placed in this clause.  This is consistent with an amendment made by the Senate, but certain terms have been altered.

Amendment 4 (amends Part 2)

This amendment deletes the whole of Part 2 and reinstates the original Part 2 with some changes.  This has been necessary because the Senate’s version introduced a number of concepts that are foreign to the Government’s intentions.  Furthermore, the Senate’s version contains a number of duplicative provisions in the objects, functions and powers.

Clause 5 is unaltered.

Clause 6 is amended to reinstate the original clause (with some minor changes) setting out the objects of the Trust when managing Commonwealth places in the Sydney Harbour region.  The amendment deletes mention of all Trust land being transferred to New South Wales for inclusion in the Sydney Harbour National Park.  The Trust will ensure that the management of Trust land contributes to the amenity of the Sydney Harbour region.  It will protect, conserve and interpret the 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 is amended to reinstate the original clause except that the requirement to establish a sustainable financial base is no longer a specified function.  The 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 plans that it has developed in consultation with the community.  The Trust is no longer required to conserve and manage land with a view to it becoming a national park because there may be more appropriate potential uses for some of the land.  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.  The clause removes a provision requiring the removal of buildings and structures not of heritage values.  These may be useful for community purposes or revenue raising.

Clause 8 is amended to reinstate the original clause with some minor changes.  The Trust is no longer able to participate in arrangements for the sharing of profits, but it still has the power to acquire, hold and dispose of real property (noting the restrictions on disposal imposed by clause 24) and to accept gifts, etc., and raise money by borrowing.  Note that clause 63 prohibits the Trust from giving land specified in Schedule 1 as security against borrowings.

Clause 9 is amended to reinstate the original clause except that, in accordance with the Senate’s amendment to this clause, the Minister is required to provide the Trust with written reasons for any directions he or she gives it.  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 70 requires the text of, and reasons for, any Ministerial directions to be recorded in the annual report of the Trust.

Amendment 5 (amends Part 3)

The whole of Part 3 is deleted by this amendment and the original Part 3 is reinstated with some significant changes in the composition of the Trust.

The new clause 10 provides for the Trust to have a Chair and 6 other members.  The Government’s original Bill proposed a Chair and 5 other members, while the Senate’s amendment proposed a Chair and 7 others.

Clause 11 now 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.  A significant change is that one of the two persons recommended by New South Wales must be an elected member of an affected council (refer to clause 3 for a definition of what is meant by affected council).  This recognises the interest of New South Wales State and Local Governments in the management of the land and the Commonwealth commitment to working closely with New South Wales.  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.

Clause 12 provides that the Minister must appoint members in writing.  He/she should only appoint persons that have relevant qualifications and experience (refer to the definition of ‘suitable person’ in clause 3), and no more than half the members of the Trust may be public employees (whether Commonwealth, State or local government).  A new subclause (3) requires the Minister to appoint one person that represents the interests of indigenous people.

The Senate’s amendments consolidated all the provisions (clauses 13 to 19) relating terms of office and appointment of members into one clause (clause 13).  These amendments reinstate the original clauses 13 to 19.  The clauses set out the terms and conditions and do not require further explanation.

Clause 20 relates to termination of appointment of members.  The Senate’s clause 20 has been essentially retained, including the requirement that the Minister may not terminate the appointment of a member appointed on the recommendation of New South Wales without first consulting New South Wales.

Amendment 6 (amends Part 4)

This amendment deletes the whole of Part 4 which relates to Trust land, and reinstates the original Part 4 with some significant changes to take account of some of the Senate’s amendments.  In particular, two Schedules to the Bill are introduced that identify the land sites that are to be vested in the Trust.  Properties listed in Schedule One cannot be sold by the Trust; properties listed on Schedule Two may be sold if the approved plan relating to those properties has identified sale as the preferred option.

Clause 21 requires the Defence Minister to transfer all the land sites listed in the Schedules within 4 years.  This recognises a continuing Defence need for parts of some of the land sites and enables the progressive transfer of the land sites, or parts of them.  The Minister for the Environment and Heritage may specify that other Harbour land is to vest in the Trust.  This other Harbour land will include Defence land at North Head.  The North Head land, which the Government indicated in its 1998 election commitment would be one of the Trust lands to be transferred by the Trust to New South Wales, has not been included in Schedule 1 because of the need to clarify land title complexities.  North Head is mentioned, however, in the Preamble.

Clauses 22, 23 and 25 are reinstated unchanged from the original Bill.  The land is vested from the date specified in the Gazette notice.  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.

Clause 24 relating to transfer of Trust land has been significantly altered to take into account the Senate’s concerns about land sale.  The Trust may not sell or otherwise dispose of any land on Schedule 1, except to the Commonwealth, New South Wales or an affected council.  The intention is to ensure that these land sites remain in public ownership.  Other land sites could be sold with the Minister’s approval, if no significant environmental and heritage values are identified in the relevant approved plan.  The plan would also need to identify sale as the proposed course of action.

Amendment 7 (amends Part 5)

This amendment deletes the whole of Part 5 and reinstates the original Part 5 with some changes to take into account the Senate’s ideas.  Consistent with the Senate’s amendments, the terminology ‘plan’, rather than ‘management plan’ has been retained.  A plan is intended to cover all aspects of conservation and management of the relevant Trust land.

Clause 26 requires the Trust to prepare draft plans for the Trust land sites specified in Schedule 1 and 2 within 2 years of commencement of this legislation.  This is despite the fact that not all parts of the land sites on the Schedules will necessarily be vested in the Trust on commencement of the legislation.  This should not affect the Trust’s ability to plan for the whole of the land sites.  For other land, draft plans must be prepared within 2 years of the land vesting in the Trust.  The original Bill required draft plans to be prepared within 18 months, and the Senate’s amendments varied the timeframes for different sites.  The current amendments standardise the timeframe to 2 years.  The Minister may extend the period on written application by the Trust.

Clause 27 is amended to clarify that a plan may not cover only part of a Trust land site.  A plan may, however, cover more than one land site because, for example, it may be more appropriate to plan for two adjacent and similar sites together.

Clause 28 relates to the content of plans and is more detailed than the original clause 28, but removes elements of the Senate’s changes that are either unnecessary or inconsistent with Government policy.  Plans must accord with the objects of the Trust and this clause defines broadly what the plans must contain.  The content of plans will be expanded by regulation and endeavour to complement existing New South Wales processes.

Clauses 29 and 30 are unaltered from the current clauses as adopted by the Senate, except that subparagraph 30(4)(c) no longer compels the Trust to take into account submissions made after the notified deadline for receipt of submissions.

In the current Bill, as read a third time in the Senate, clauses 31, 32 and 33 relate to a process of the Minister firstly considering a draft plan, then the Trust considering its draft plan together with the Minister’s and State Minister’s comments, the Trust endorsing the plan, and then the Minister approving or rejecting it.  These amendments refine this process and reinstate the process originally envisaged, with the addition of consultation with the appropriate State Minister in New South Wales.  The State Minister is given 2 months to comment on a draft plan and the Minister for the Environment and Heritage is required to take into account the State Minister’s comments before approving the plan, or referring it back to the Trust for alteration, or rejecting it.  Clauses 32 and 33 specify the process if the Minister refers a draft plan back to the Trust, or rejects it.

Clause 34 relating to public notification of an approved plan is unaltered.



Clause 35 has been expanded to cover not only when an approved plan takes effect, but also that the Trust must begin to implement an approved plan as soon as practicable.  This picks up the sentiment behind the Senate’s amendments to clause 38 on implementation of plans.

Clause 36 relates to amendment of plans and removes an inconsistency in the Bill that required the Minister to approve any amendment to a plan area before the Trust prepares an amendment to the relevant plan.  The Senate’s amendments removed the original provision in clause 27 for Ministerial approval of plan areas.

Clause 36A relating to plans being disallowable is deleted and replaced by a new clause 36A that requires the Trust to make publicly available submissions on proposals to prepare draft plans, draft plans, and amendments to draft plans.  It is not considered necessary for plans to be disallowable instruments due to the increased provisions in these amendments for public scrutiny of the planning process.

Clause 37 is unaltered apart from minor wording changes for consistency.

Clause 38 is amended to reinstate the original clause 38 which recognises the legitimacy of actions taken by the Interim Trust in relation to planning.  This clause is essential if the work of the Interim Trust on preliminary planning and community consultation is to have been worthwhile.  It is not intended that any work by the Interim Trust that is not consistent with the processes identified in this Bill should be legitimised.  The sentiments behind the Senate’s amendments to clause 38 regarding implementation of plans are now covered in amendments to clause 35.

Clauses 38A and 38B are unaltered.

Amendment 8 (amends Part 7)

8 This amendment deletes Part 7 of the Bill and reinstates Part 7 of the original Bill with a number of changes to take into account most of the Senate’s amendments, whilst rectifying inconsistencies.

Clause 50 relating to times and places of meeting is unaltered apart from the deletion of the requirement for the reasons for calling a meeting to be recorded in the minutes.  This provision is more appropriately included in clause 54A that deals with all matters to be recorded in minutes.

Clause 50A is amended to require the Trust to hold its meeting in public, unless it is in the public interest to do otherwise. This amendment replaces clause 50AA which is deleted.  The provision in clause 50A relating to the keeping of minutes is deleted as it duplicates clause 56.  All matters relating to the keeping of minutes are now in new clause 54A.

Clause 51 relates to notice of meetings and specifies the required notice for Trust meetings.



Clause 52 is amended so that, if the Chair is not present at a meeting, the members present may appoint a Commonwealth member to preside.  As the Trust will be a Commonwealth body, it is considered appropriate that only a Commonwealth member should preside at meetings.

Clause 53 relating to quorum is unaltered.  Clause 54 relating to voting at meetings is also unaltered apart from the removal, for consistency, of the requirement to record the mover and seconder of motions in the minutes.  This requirement is now in clause 54A, but the requirement to record the names and votes of each member on each question is removed entirely as being unnecessary and unduly onerous.

Clause 54A is a new clause that consolidates all the requirements for the keeping of minutes into one clause.

Clause 55 relates to the conduct of meetings and has been reworded to ensure legal clarity.

Clause 56 relating to minutes of meetings is now covered by clause 54A.  Matters relating to the public availability of plans, public submissions, minutes and other documents are covered in clauses 30, 34, 36A, 54A, 70 and 70A.  The original clause 56 is reinstated, enabling the Trust to pass resolutions by agreement and in accordance with the determined method without requiring a meeting.

Clause 56A, relating to disclosure of pecuniary interest in matters being discussed at a meeting, is deleted as this matter is covered by the Commonwealth Authorities and Companies Act 1997 (refer to the Note under clause 54).

Amendment 9 (amends Clause 57 and inserts new Clause 57A)

This amendment reinstates the original clause 57 relating to community advisory committees, but retains some of the Senate’s amendment to the clause.  The amendments are relatively minor and include definition of the composition of the community advisory committees to ensure they include local community and local government.  The amendments also qualify what these committees must consider and allow the Trust to establish procedures for the committees following consultation with them.

New clause 57A specifies the Trust’s obligations to provide relevant documents to the committees and to consider the advice and recommendations of the committees.

Amendment 10 (amends Subclauses 58(1) and 58(2))

10 The amendment to subclause 58(1) is a simplification of the wording - the Trust must establish one or more technical advisory committees.  The amendment to subclause 58(2) expands the technical matters upon which the technical advisory committees can provide advice.

Amendment 11 (amends Subclause 58(4))

This is a consequential amendment to the amendment to subclause 58(2) but does not alter the meaning.

Amendment 12 (amends Subclause 58(5))

This amendment omits the word “reasonable” as the requirement for “reasonable written directions” is nebulous and might leave the Trust open to litigation.

Amendment 13 (amends Part 9)

This amendment deletes the whole of Part 9 and reinstates the original Part 9 to reflect the Government's position that some land may be sold in certain circumstances (refer to the new Part 4 above).  It also ensures that costs incurred by the Commonwealth in respect of the Interim Trust are recoverable from the Trust.  The provisions in clause 63 whereby the Trust can give security over land has been restricted to instances where the land has been identified as suitable for sale.  Written approval of the Minister for the Environment and Heritage is required before the Trust may enter into certain contracts or leases.

A new clause 64A is included to ensure that the Trust cannot enter into leases or licences over Trust land for a period in excess of 25 years until the proposed terms and conditions of the lease or licence have been approved by Parliament. Otherwise the 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.  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.

Amendment 14 (amends Part 10)

This amendment deletes the whole of Part 10 and reinstates the original Part 10.  The Senate’s amendments that all Trust assets should be transferred to New South Wales before repeal of the Act, while all liabilities are the responsibility of the Commonwealth is unacceptable.  The repeal time is changed back to as soon as practicable after ten years.  The intention is that the Trust should complete its task within ten years, but there must be some flexibility in the timeframe.  Once the Trust has completed its work, suitable lands will be transferred 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, unless already transferred.  All lands on Schedule 1 are to remain in public ownership.



Amendment 15 (amends Part 11)

This amendment deletes the whole of Part 11 and reinstates the original clauses with some changes and additions.  The annual reporting requirements under clause 70 are retained as amended in the Senate, but the requirement to report on contracts is removed.  This is unnecessary as the Trust is required by the Commonwealth Authorities and Companies Act 1997 to comply with the same reporting requirements as any other Commonwealth agency.

A new clause 70A is included to enable the Trust to charge a fee for providing copies of documents.  This is considered reasonable as the Trust may well incur very significant photocopying costs in making plans, etc., available to the general public.

The original clause 71 providing for exemption from certain State laws is reinstated.  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 plans for each Trust land site (clauses 29 and 30), and plans will be enforced through the Regulations.

The Senate’s amendments to the Trust’s powers of delegation (clause 72) are considered unnecessarily restrictive.  The original clause 72 is reinstated allowing delegation to the Trust’s Executive Director or other employees, or a senior executive employee of the Minister’s Department.

Clause 73 relating to matters that may be prescribed in Regulations is unchanged, apart from removal of the provision for specifying additional land to be vested in the Trust.  This is unnecessary because there are simpler provisions in clause 21 for additional land to be gazetted.  Provision for the regulations to prescribe terms and conditions and remuneration of Trust members is also removed.  Again, this is unnecessary and is adequately covered by Part 3 and the Remuneration Tribunal Act 1973 .

Amendment 16 (amends Schedule 1)

16 This amendment replaces the existing Schedule 1 with a new Schedule 1 that lists the Defence land to be vested in the Trust and that is to remain in public ownership.  Defence land at North Head has been omitted from this Schedule because of complexities in relation to land tenure at the site.  The Government has, however, already publicly stated its intention to transfer this land to the Trust, and this is included in the Preamble.

Amendment 17 (adds a new Schedule 2)

This amendment adds a new Schedule 2 that lists other Defence land that is to be vested in the Trust.  If deemed appropriate in the approved plan for this land, it may be sold.