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Environment and Heritage Legislation Amendment Bill (No. 2) 2000 [2001]

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1998-1999-2000

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL (NO.2) 2000

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

Circulated by authority of the Minister for the Environment and Heritage, Senator the Hon. Robert Hill



ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL (NO.2) 2000

 

 
GENERAL OUTLINE

 

The objects of this Bill are:

·         To establish a Commonwealth heritage regime that will focus on matters of national significance and Commonwealth responsibility;

·         To list places of national heritage significance in a National Heritage List using a process of community consultation, expert advice and ministerial responsibility;

·         To protect and manage places in the National Heritage List;

·         To list places in Commonwealth areas with heritage significance in a Commonwealth Heritage List using a process of community consultation, expert advice and ministerial responsibility;

·         To advise Commonwealth agencies on actions in relation to places in the Commonwealth heritage list; and

·         To provide for the management of places in the Commonwealth Heritage List.

 

The Bill comprises three schedules, two of which amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

 

National List (Schedule 1)

 

The Bill provides for heritage places of national significance to be included in a National Heritage List. A place in the National Heritage List will be recognised as an additional matter of national environmental significance under the EPBC Act. The EPBC Act will then regulate an action that has, will have, or is likely to have a significant impact on the national heritage values of a place listed in the National Heritage List.

 

The Minister may only include a place in the National Heritage List if satisfied that the place has one or more national heritage values. The Minister may ask the Australian Heritage Council, an expert heritage advisory body, for an assessment of the place’s national heritage values and invite public comments on the inclusion of the place in the National Heritage List.

 

The Minister must make plans for managing national heritage places that are entirely within Commonwealth areas and the Commonwealth must try to prepare and implement plans for managing other national heritage places, in cooperation with the States and self-governing Territories.

 

The Commonwealth can provide assistance for the identification, promotion, protection or conservation of national heritage places.

 

Commonwealth List (Schedule 1)

 

The Bill requires that a Commonwealth agency must ask the Minister for advice before taking an action that has, will have or is likely to have a significant impact on a Commonwealth heritage place. However the agency is not required to ask the Minister’s advice if the proposed action is taken in accordance with a management plan accredited by the Minister.

 

The Minister may only include a place in the Commonwealth Heritage List if the place is in a Commonwealth area and the Minister is satisfied that the place has one or more Commonwealth heritage values. The Minister may ask the Australian Heritage Council, an expert heritage advisory body, for an assessment of the place’s Commonwealth heritage values and invite public comments on the inclusion of the place in the Commonwealth Heritage List.

 

Commonwealth agencies must make plans for managing Commonwealth heritage places.

 

The Commonwealth can provide assistance for the identification, promotion, protection or conservation of Commonwealth heritage places.

 

Conservation of biodiversity and heritage (Schedule 1)

 

The Bill provides for conservation agreements between the Commonwealth and persons for the protection and conservation of heritage in the Australian jurisdiction.
 

The Commonwealth may provide financial or other assistance.

 

Conservation agreements must result in a net benefit to the conservation of heritage in the place covered by the agreement.

 

Indigenous advice (Schedule 2)

 

The Bill provides for the Australian Heritage Council to obtain advice from the Director of Indigenous Heritage Protection on a place’s indigenous heritage values.

 

Register of the National Estate (Schedule 3)

 

Places on the Register of the National Estate that are wholly within a Commonwealth area may be taken to be included in the Commonwealth Heritage List if the Minister so determines within 6 months of the new regime commencing.

 

Acts replaced

 

The Bill is presented in conjunction with the Australian Heritage Council Bill 2000; together the Bills replace the Australian Heritage Commission Act 1975 .

 

FINANCIAL IMPACT STATEMENT

 

The Environment and Heritage Legislation Amendment Bill (No.2) 2000, along with the Australian Heritage Council Bill 2000, will not cost the Commonwealth more than the existing legislative arrangements being replaced.

 

Regulation impact statement

 

PROBLEM

 

Duplication

 

The Commonwealth’s existing heritage conservation regime is now seriously outdated and subject to significant limitations. Under the Australian Heritage Commission Act 1975 (AHC Act), over   13, 000 places are listed on the Register of the National Estate. Some of these places are of national significance but many would properly be regarded as places of State or local significance. Therefore, the Commonwealth is often involved in matters that are not appropriately the responsibility of a national government. As a result, the current regime is characterised by unnecessary inter-governmental duplication which causes uncertainty and delay for business/industry.

 

It is also important to recognise that the AHC Act provides no substantive protection for heritage places of national significance. The limited procedural safeguards included in the AHC Act fall well short of contemporary best practice in heritage conservation.

 

The deficiencies in the existing regime can be summarised as follows:

 

·         a lack of an overarching national heritage policy on one hand and, on the other hand a Commonwealth heritage regime that was involved, in great detail, at a local and State level;

·         a heritage register with over 13,000 items listed and some 7,000 items nominated for listing;

·         duplication in heritage laws and processes between the Commonwealth, States/Territories and local government;

·         the Commonwealth being repeatedly involved in heritage protection controversies that were more properly the responsibility of the States and local government;

·         community confusion about the various heritage regimes and lists in operation; and

·         a lack of real protection for nationally important heritage places.

 

i. Government roles and responsibilities

 

The Commonwealth regime was established by the AHC Act in 1975. At that time, it was Australia’s only heritage protection statute.  Now all States and Territories have heritage protection legislation and many local government bodies identify and protect heritage in local planning instruments.  The Commonwealth’s listing of places has now been widely duplicated in State and local lists with the result that different pieces of protection and planning law can apply to one site.

 

The Council of Australian Governments (COAG) (1997 Agreement, section 6) agreed on the need for the rationalisation of existing Commonwealth/State arrangements for the identification, protection and management of places of heritage significance.  COAG accepted that the Commonwealth’s role should focus on the protection of places of national heritage significance and ensure Commonwealth compliance with State heritage and planning laws.

 

Implementation of the strategy envisaged by COAG was subject to widespread consultation through 1998 and 1999. It is now proposed that the Commonwealth take action to recognise the roles and responsibilities of the Commonwealth and the States consistent with the COAG Agreement.

 

ii. Listing processes

 

The Commonwealth, States, Territories and many non-government and independent organisations maintain lists of heritage places for statutory and non-statutory purposes.  Multiple listing has generated confusion in the community about the implications of listing and the relationships between registers.

 

At the Commonwealth level, the Register of the National Estate (RNE) is a statutory list covering natural and cultural heritage places.  It includes places significant at the national, State and local level. However, the RNE does not differentiate between the different levels of significance, and it is sometimes confused with other lists, including the World Heritage List, Ramsar list, State lists, and National Trust registers.

 

Approval processes related to a place that is listed on more than one statutory list and involving more than one regulatory authority can result in unnecessary delays, costs and uncertainty for both industry and the community.

 

iii. National Heritage List

 

The RNE contains places of all levels of significance but does not differentiate between them.  COAG (1997) agreed to the establishment of a list of places of national heritage significance and accepted that this be a further matter of national environmental sign ificance.  The EPBC Act provides a framework for the protection of matters of national environmental significance.

 

It is now proposed that the identification and protection of sites of national heritage significance be included as a matter of national environmental significance in that Act. Other matters of national environment significance, as identified by COAG, are already recognised in the EPBC Act framework.

 

Why is government action needed to correct the problem?

 

The COAG move to rationalise existing Commonwealth/State heritage management arrangements cannot be implemented without Commonwealth legislative change.  The operation of the AHC Act duplicates State responsibilities and fails to provide substantive protection for heritage places of national significance.  In addition, the AHC Act does not provide for the identification of places of national heritage significance as envisaged by COAG.  Legislation is required to address these two elements.

 

OBJECTIVES

 

What are the objectives of government action ?

 

·         To assign responsibility for identifying, protecting and managing heritage places to the appropriate level of government;

·         To ensure that heritage management systems are compatible, complementary and streamlined across all levels of government to minimise duplication and provide certainty to property owners, decision makers and the community;

·         To ensure that nationally significant heritage places are identified and protected; and

·         To facilitate the protection of places of heritage significance on Commonwealth land (other than sites of national significance).

 

Is there a regulation/policy currently in place?  Who administers it?

 

This amendment bill is designed to replace the AHC Act which is administered by the Department of the Environment and Heritage.

 

The authority for the establishment of a National Heritage List arises from the following:

 

(i) The 1997 Council of Australian Governments Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment which agreed to:

 

‘the rationalisation of the existing Commonwealth/State arrangements for the identification, protection and management of places of heritage significance through the development…of a co-operative national heritage places strategy which will….provide for the establishment of a list of places of national heritage significance.’

 

(ii) The Consultation Paper on the Reform of Commonwealth Environment Legislation issued by the Minister in 1998 which stated that:

 

‘The National Strategy should provide for the preparation of a national list of heritage places of exceptional value and importance to the nation as a whole.’ (p.35)

 

(iii) Coalition election policy Our Living Heritage (1998):

 

‘Support the establishment of a national list of heritage places for which the Commonwealth will have protective powers.’ (p.58)

 

(iv) The National Strategy for Australia’s Heritage Places: A Commonwealth Consultation Paper , issued by the Minister in 1999, which stated that the Commonwealth, in partnership with the States, would:

 

  ‘Identify and maintain a comprehensive list of places of national significance through a legislatively-defined process’ (p.11)

 

Options

 

The only options available to the Government are: (i) to continue with the existing Commonwealth/State heritage regimes (which fails to give effect to the COAG Agreement) or (ii) to implement the COAG Agreement through the reform of Commonwealth heritage legislation.

 

Changes to the legislation will affect government, business, and the community to varying degrees.  The most significant regulatory impacts would arise from changes to the Commonwealth’s heritage assessment and approvals regime.

 

How action could be taken

 

In reforming its heritage legislation, the Government can do one of two things: (i) amend the AHC Act or (ii) incorporate a new heritage regime into the existing EPBC Act.

 

The required amendments to the AHC Act would be extensive.  It would be necessary to establish a substantive protection regime, prescribe an approval process for proposed actions, a framework for entering into bilateral and other agreements, the establishment of different levels of assessment and a process for the establishment of management plans.  To follow this route would, therefore, involve extensive changes to the older legislation and could lead to duplication of processes. It would, in particular, require duplicating the existing EPBC Act framework. This would be contrary to COAG’s commitment to reduce such duplication in Commonwealth/State environmental responsibilities and to increase stakeholder certainty in approvals processes.

 

Incorporating a heritage protection regime within the EPBC Act would be legislatively simpler. All it would require is the inclusion of heritage as an additional matter of national environmental significance (Part 3). The Government’s objectives would then be met by relying on the protection framework already established in the EPBC Act.  This approach would  also be in keeping with COAG’s desire to simplify the assessment of  nationally-significant heritage matters and to provide a robust framework for Federal-State cooperation on environmental matters.

 



Features common to both legislative approaches include:

 

·         Limiting Commonwealth involvement in heritage assessment and approval processes to those heritage matters of national significance;

·         Proponents will be able to initiate the triggering process in the Act;

·         Decisions on Commonwealth involvement will be made early in the process and will be binding;

·         A transparent legislative mechanism for the accreditation of State assessment processes and, in some cases, State decisions will be adopted. The goal will be to maximise reliance on State processes which meet appropriate standards. Bilateral agreements will provide for Commonwealth accreditation of State processes and, in appropriate cases, State decisions (for example, decisions under agreed management plans). Accordingly, bilateral agreements will allow the Commonwealth to accredit State systems which meet specified criteria.  The Bill contains provisions to ensure that the level of protection afforded by State processes must be at least equivalent to that provided by Commonwealth processes; and

·         Providing for voluntary conservation agreements to protect heritage values on private and public land.

 

IMPACT ANALYSIS

 

Who is affected by the problem, and who is likely to be affected by its proposed solutions?

 

The main parties affected by the problem and its proposed solutions are the Commonwealth, States and Territories, and industry.

 

The community will also be affected by changes in the management of the heritage environment to the extent that roles and responsibilities will be clearly established, including the recognition that the Commonwealth’s role should focus on places of national heritage significance.



Identify and categorise the expected impacts of the proposed options as likely benefits, or likely costs. Determine which groups are likely to experience these benefits and costs.

 

Option 1: Status quo

 

Benefits

 

The heritage stakeholder community has a strong historical attachment to the Register of the National Estate. These stakeholders will be able to maintain that attachment to the Register.

 

Costs

 

The main costs to the community, if the status quo is maintained, is that heritage places of national significance will not enjoy any substantive protection under Commonwealth law.

 

The main costs to the Commonwealth are:

·       unnecessary duplication of State assessment and approval processes will continue;

·       the Commonwealth will continue to assesses matters that are of State and local heritage significance only;

·       some proposals affecting matters of genuine national heritage significance will continue to escape Commonwealth assessment and approval; and

·       the potential for expensive and protracted involvement in State resource management issues where RNE places are involved.

 

The main costs to the States arise from:

·       continuing unnecessary duplication of Commonwealth assessment and approval processes; and

·       uncertainty about whether and when the Commonwealth will become involved in environmental assessment and approval and the resulting high cost of managing inquiries and debates when the Commonwealth does become involved.

 

The main costs to industry are:

·       some proposals will continue to be unnecessarily subject to both Commonwealth and State assessment and approvals;

·       continuing uncertainty about whether Commonwealth assessment and approval processes are triggered, and associated delays in assessment;

·       continuing delays owing to Commonwealth assessment and approval processes being triggered late in the development process; and

·       the expense and delay of often being involved in major land use debates and inquiries triggered by the referral process involving places on the RNE.

 

Option 2: Reform of Commonwealth heritage legislation

 

Benefits

 

The main benefits to the Commonwealth are:

·       improved efficiency and transparency in decision making on heritage matters involving the Commonwealth and the States;

·       more focused Commonwealth involvement in heritage issues based on matters of national significance, which will lead to better use of Commonwealth resources and improved environmental outcomes;

·       the removal of unnecessary duplication of heritage assessment and approval processes through the framework for accreditation of State processes and decisions;

·       Commonwealth’s level of involvement determined early in an assessment and approvals process;

·       removal of existing indirect triggers will remove the obligation (and costs) of Commonwealth Ministers and Departments requiring impact assessment for matters that are of State or local significance only;

·       opportunities for coordinating and streamlining Commonwealth decision making on heritage matters involving the States;

·       clear Commonwealth role in heritage matters and clear arrangements for determining whether matters of national heritage significance exist;

·       the total cost of assessments and approvals processes to the Government sector will be reduced, because duplications and inefficiencies are being eliminated, particularly through accreditation and bilateral agreements; and

·       use of bilateral agreements, conservation agreements and other instruments to encourage a focus on long-term planning and monitoring.

 



The main benefits to States are:

·       recognition that heritage matters of State or local significance will be dealt with by the States, together with greater certainty of Commonwealth responsibilities and involvement in heritage issues based on matters of national significance;

·       Commonwealth will no longer be involved in heritage matters that are of only State or local significance;

·       improved efficiency and transparency in decision making on heritage matters involving the Commonwealth and the States with mechanisms that involve the States in decision making;

·       clear arrangements for determining whether matters of national heritage significance exist; and

·       removal of unnecessary duplication of Commonwealth environmental assessment and approval processes through streamlined accreditation arrangements.

 

The main benefits to industry are:

·       greater certainty of Commonwealth and State roles, responsibilities and processes relating to the environment, particularly Commonwealth involvement in heritage issues;

·       simplified and clearer framework in which industry can pursue proposals requiring development approval;

·       a framework for improved accreditation arrangements whereby only one government heritage assessment and approval process will be applied to an activity or proposal - the government best placed to undertake an assessment will do so with unnecessary duplication removed;

·       a framework for integrated Commonwealth and State processes and improved public interfaces for dealing with activities and proposals involving matters of national heritage significance;

·       environmental and development approvals that are not of national heritage significance will be considered in accordance with State environmental and planning processes (unless the action is being undertaken by the Commonwealth or is in a Commonwealth area);

·       the delay, uncertainty and inefficiency associated with indirect triggers for Commonwealth assessments will be eliminated;

·       the legislation will require an early, binding decision by the Commonwealth on whether its assessment process will apply;

·       there will be set timeframes within which decisions must be made; and

·       the increased use of voluntary conservation agreements, which allow a flexible approach to conserving heritage on private land.

 

The main benefits to the community are:

·       enhanced protection of heritage places especially heritage places of national significance, with potential benefits such as better environmental and social outcomes; and

·       while the Bill retains current opportunities for community input to heritage assessments and approvals, earlier triggering and a more certain process with explicit time-lines will ensure that community comment is considered earlier in the development process, and is therefore more effective.  Decisions will continue to be transparent, and information will continue to be available to the public.

 

Costs

 

Most of the costs of the revised assessment processes will be borne by Government, and will arise from the need to revise regulations and procedures, and negotiate and implement bilateral agreements. To some degree, these costs are being incurred now by the commencement of the EPBC Act, and by including heritage as a matter of national environmental significance, the Government is able to minimise any additional administrative costs arising from its proposed changes to heritage assessment processes. Indeed, the Government expects that the costs of the administration of the proposed regime will be met from the resources redirected from the administration of the AHC Act.

 

Minor costs to industry will result from the need to become familiar with the new procedures and train staff to comply with them. But as industry will, in any event, have to become familiar with the assessment provisions of the EPBC Act, the additional compliance costs associated with making heritage a matter of national environmental significance under that Act should be insignificant.

 

The inclusion of heritage as a specific obligation under the EPBC Act framework will clarify the somewhat unclear heritage protection obligations which currently exist and should also help minimise overall administrative and compliance costs.

 

Total costs associated with the operation of Commonwealth involvement in State heritage matters are expected to be significantly reduced as the Commonwealth will no longer be involved in matters that are the proper responsibility of the States.

 

Consultation

 

The Review of Commonwealth-State Roles and Responsibilities for the Environment involved extensive consultation between the Commonwealth, States, Territories, and the Australian Local Government Association.  The Review also involved consultation with relevant Ministerial Councils and non-government organisations.  In December 1996 the views of key non-government organisations on a consultation paper were sought.  Submissions from these organisations were considered by the senior level Working Group conducting the review, which also held discussions with representatives of key community organisations.

 

The consultation process included national workshops on technical issues, the release of discussion documents, the holding of the 1998 National Heritage Convention (facilitated by the Australian Heritage Commission) and entering into detailed discussions with the States and Territories at a Ministerial and senior officials level.

 

Consultation on the reform of Commonwealth heritage legislation was primarily through Senator Hill’s Consultation Paper on the Reform of Commonwealth Environment Legislation (1998) and the National Strategy for Australia’s Heritage Places: A Commonwealth Consultation Paper issued by the Minister in April 1999.

 

Who are the main affected parties?  What are the views of those parties?

 

The main affected parties and their views are:

 

Governments

There was acceptance, by the States and Territories, of a number of key issues:

 

·         the heritage roles and responsibilities of Governments;

·         the managed discontinuation of the Register of the National Estate as a trigger for Commonwealth statutory processes;

·         the process for listing of places of national heritage significance; and

·         the principle that the national list should aim to establish the truly outstanding places of national heritage significance.

 



Agreement could not be reached on:

 

·         the referral of State powers to the Commonwealth to enable the full protection of nationally listed places;

·         the request by States for a veto on the nomination of a place for national listing; and

·         the development of common heritage protection standards.

 

Industry

Industry generally supports the substance of the proposed reforms, particularly the clarification of Commonwealth and State roles and responsibilities, the efficiencies that will be gained through the streamlining of the environmental assessment and approvals processes, and the simplification of the regulatory regime.  Industry notes that the precise benefits of the reforms will, to some extent, depend upon implementation of accreditation arrangements and bilateral agreements between the Commonwealth and individual States and Territories.

 

Conservation organisations

Conservation groups are concerned that accreditation of State and Territory processes may reduce the overall level of protection for the environment.  There is also concern that approaches such as the use of bilateral agreements should be transparent, and provide scope for public involvement. Conservation organisations generally support the suggested reforms relating to an integrated approach to the conservation of heritage. There was some general concern from conservation groups regarding any possible erosion of the independence of the Australian Heritage Commission.

 

Conclusion and recommended option

 

Repealing the AHC Act and amending the EPBC Act to provide for the establishment, by the Minister, of a list of places of national heritage significance is the preferred option because it will:

·       implement the Heads of Agreement on Commonwealth/State Roles and Responsibility for the Environment;

·       focus Commonwealth involvement in heritage matters of national significance and eliminate the need for Commonwealth involvement in matters which are properly the responsibility of State or local governments;

·       deliver significant ongoing benefits to the Commonwealth, States and Territories, and industry, particularly in terms of more streamlined and efficient heritage assessment and approvals processes; and

·       implement the Government’s election policy commitments in relation to heritage.

 

Heritage assessment and approval procedures will be simplified and streamlined.  Circumstances under which Commonwealth processes are triggered will be much clearer than at present, and clear time-lines will also be set out.

 

Consultation with business/industry demonstrates support for, and understanding of, the proposed changes.

 

Use of the EPBC Act ensures that existing protection measures and processes are utilised for heritage protection rather than alternative and potentially contradicting regimes.

 

The proposed amendments are also likely to reduce compliance costs for business and for non-government organisations.

 

 

 

Implementation and review

 

It is envisaged that the amendment Bill will be introduced into the Spring 2000 session of the Federal Parliament. In view of the parliamentary processes that need to be observed, including the likely referral of the Bill to a Committee, it is expected that the new amendments will enter into force towards the end of 2001. Thereafter, the Government will monitor the operation of the amendments on an on-going basis.



 

ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL (NO.2) 2000

 

NOTES ON CLAUSES AND ITEMS

 

Clause 1 - Short Title

1         This item provides for the Act to be cited as the Environment and Heritage Legislation Act (No.2) 2000 .

 

Clause 2 - Commencement

2         This item provides that the Act will commence on the day on which it receives Royal Assent. Schedule 2 commences when the Director of Indigenous Heritage Protection is established under the Aboriginal and Torres Strait Islander Heritage Protection Act 2000 if that Act occurs after Schedule 1 to this Act commences.

 

Clause 3 - Schedule(s)

3         This item sets out the effects of Schedules to this Act.

 

SCHEDULE 1 - AMENDMENTS RELATING TO THE NATIONAL HERITAGE LIST AND COMMONWEALTH HERITAGE LIST

 

Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)

 

Item 1 - After paragraph 3(1)(c)

4         This item amends section 3(1)(c) of the EPBC Act to include the protection and conservation of heritage in the Objects of the Act.

 

Item 2 - After paragraph 3(2)(f)

5         This item amends section 3(2)(f) of the EPBC Act to recognise that, in order to achieve its objects, the EPBC Act includes provisions to identify places for the National Heritage List and the Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places.

 

Item 3 - Subsection 12(4)

6         This item amends the EPBC Act so that the definition of natural and cultural heritage in this instance only applies to section 12.

 

Item 4 - After Subdivision A of Division 1 of Part 3

 

Section 15B - Requirement for approval of activities with a significant impact on a national heritage place

7         This section provides that a person must not take an action that has, will have or is likely to have a significant impact on the national heritage values of a national heritage place except:

                                   i.        where a person has obtained the approval of the Minister for taking the action; or

                                  ii.        where a bilateral agreement provides that the action does not require an approval; or

                                iii.        where a declaration provides that an action does not require an approval.

 

8         The section does not apply to actions taken under Regional Forest Agreements or to authorised actions in the Great Barrier Reef Marine Park.

 

9         The section is structured so as to rely upon the available heads of constitutional powers to the greatest extent possible. Civil penalties apply for non-compliance.

 

Section 15C - Offences relating to national heritage places

10     This section mirrors section 15B in regulating actions in relation to national heritage places. However, it establishes criminal offences in the event of non-compliance.

 

Item 5 - Section 34 (after table item 1A)

11     This item adds national heritage values in a national heritage place as an additional matter protected by a provision of Part 3 (in this case sections 15B and 15C).

 

Item 6 - After section 34B

34BA - Declarations relating to national heritage places

12     This item sets out prerequisites for making declarations in relation to a national heritage place. The intention of the item is to ensure that an accredited management plan promotes the management of the place in accordance with the national heritage management principles.

 

Item 7 - After section 51

51A - Agreements relating to national heritage places

13     This item sets out prerequisites for entering into a bilateral agreement concerning a national heritage place. The intention of the item is to ensure that a bilateral agreement, and any bilaterally accredited management plan, promotes the management of the place in accordance with the national heritage management principles.

 

Item 8 - Subsection 84(3A)

14     The item provides for the Minister to declare that certain actions covered by declaration in relation to national heritage places do not require assessment under this Part.

 

Item 9 - Chapter 5 (heading)

15     This item amends the heading in Chapter 5 of the Act.

 

Items 10 to 20 - Conservation agreements

16     These items will provide for the Minister to be able to enter into conservation agreements to enhance the conservation of heritage places.

 

Item 21 - At the end of section 323

17     In this instance, the definition of natural and cultural heritage applies only to section 323.

 

Item 22 - After Division 1 of Part 15

 

Section 324A - Simplified outline of this Division

18     This item provides a simplified outline of Division 1A.

 

Section 324B - The National Heritage List

19     This section sets out how a National Heritage List is established, what it must specify and how it may be kept.

 

20     The Minister may include a place in the National Heritage List if satisfied that the place has one or more national heritage values. The Minister has discretion as to whether to include a place with national heritage values in the National Heritage List.

 

21     This section also provides a definition of national heritage place in the Act.

 

Section 324C - Meaning of national heritage values

22     This section provides a definition of national heritage values in the Act. If a place is included in the National Heritage List and national heritage values for that place are specified in the National Heritage List, that is conclusive evidence that the place has national heritage values.

 

23     In deciding whether a place has national heritage values, the Minister must consider the criteria in the regulations.

 

Section 324D - Nominations of places

24     This section sets out how someone may nominate a place for the National Heritage List and what must be done with the nomination:

                                   i.        the Minister must ask the Australian Heritage Council for an assessment of the place’s national heritage values; or

                                  ii.        the Minister must advise the person who made the nomination of the Minister’s decision not to include the place in the National Heritage List.

 

25     The Minister has discretion whether to ask the Council for an assessment or whether to decline to assess the nominated place and so decide not to enter the place on the National Heritage List.

 

26     The section also provides for the Minister to invite nominations of places within a specified national heritage theme. The intention here is to provide an opportunity for broad community involvement and interest in national heritage.

 

27     The Council may nominate a place for inclusion in the National Heritage List.

 

Section 324E - Emergency Listing

28     Where the Minister considers that a place has one or more national heritage values and one or more of these values are under imminent threat, the Minister may include the place in the National Heritage List before obtaining an assessment from the Australian Heritage Council. The Minister must advise any nominator of the inclusion of the place on the National Heritage List and publish a notice of the listing in accordance with the regulations.

 

29     The section also sets out the period for requesting and receiving an assessment from the Australian Heritage Council after the place is entered in the National Heritage List under this provision.

 

Section 324F - Assessment by the Australian Heritage Council

30     This section sets out the timeframe for assessments by the Council for both nominated places (Section 324D) and emergency listing (Section 324E).

 

31     The section also sets out with whom the Council must consult in making its assessment and in what form those assessments must be made.

 

32     The Council must only consider matters relating to the place’s national heritage values when making assessments.

 

33     A copy of comments received during the assessment process must be forwarded to the Minister with the assessment.

 

34     The Minister can refer an assessment to the Council in the absence of a nomination.

 

35     The Council must not undertake assessments in the absence of a request from the Minister.

 

Section 324G - Requirement to invite public comment

36     This section sets out the requirement for the Minister to invite public comment on the proposed inclusion of a place in the National Heritage List, stipulating that comments must be in an approved form and must be provided within a certain time. The section also sets out when the Minister must publish a notice and what the notice must include.

 

37     The period for public comment is set out depending on whether a place is included in the National Heritage List under an emergency listing or not.

 

38     This section also provides an option for the Minister to ask the Australian Heritage Council or, if required, another person with appropriate expertise, to undertake an assessment of public comments on the proposed inclusion of a place in the National Heritage List.

 

Section 324H - Decision whether to include a place in the National Heritage List

39     This section sets out what the Minister must do after considering any comments which comply with section 324G. The Minister may either include a place in the National Heritage List and publish a notice in accordance with the regulations or give reasons to the person who nominated the place as to why the place was not included in the National Heritage List. That is, the Minister has a broad discretion as to whether to include a place in the National Heritage List.

 

40     In the case of a place that was listed on the National Heritage List under an emergency listing process (Section 324E), the Minister may either decide that the place should remain on the National Heritage List or decide to remove the place from the National Heritage List by publishing a notice in the Gazette. This notice is not a disallowable instrument.

 

Section 324J - Removal of places or national heritage values from the National Heritage List

41     This section sets out the Minister’s obligations where a place’s national heritage value or values no longer exist:

                            i.         the Minister can only remove a place if satisfied that the place does not have any national heritage values;

                          ii.         the Minister can only remove one or more national heritage values from a place if satisfied the place no longer has the national heritage value or values.

 

42     The Minister may also remove a place from the National Heritage List if satisfied that it is necessary in the interests of Australia’s defence or security to do so.

 

43     The Minister must publish an instrument in the Gazette and that instrument is disallowable unless the instrument removes the place only because of Australia’s defence or national security.

 

Section 324K - Minister must consider advice of the Australian Heritage Council

44     Before removing a place from the National Heritage List or before removing one or more values from a place in the National Heritage List, the Minister must ask for the advice of the Australian Heritage Council. However, the Minister is not required to ask and consider the advice of the Council if the removal is because of Australia’s defence or national security.

 

45     This section also sets out the requirements for obtaining advice from the Council, for how the advice must be prepared and the timeframe for the Minister’s decision after receiving the advice.

 

Section 324L - Specifying one or more additional national heritage values for a national heritage place

46     This section sets out how the Minister can specify in the National Heritage List one or more additional national heritage values. The place is treated like a new nomination but only for the specified additional national heritage values and the original listing of that place is not affected by the requirements of this section.

 

Section 324M - National Heritage List must be publicly available

47     The National Heritage List must be available on the Internet and must also be available in hardcopy when requested. The copies must be up-to-date.

 

Section 324N - Certain information may be kept confidential

48     This section provides for the Minister to keep confidential details of places where the Minister considers that a place may be significantly damaged by having information disclosed about it publicly. A general description of the place can be used for publication purposes.

 

Section 324P - Duty not to disclose assessments or advice

49     This section specifies that there is a period in which a Council member must not disclose the advice or any related information, except for the official purposes of the Council.

 

Section 324Q - Management plans for national heritage places in Commonwealth areas

50     This section requires the Minister to prepare management plans for national heritage places which are completely within Commonwealth areas. The section sets out the requirements that must be met by such plans.

 

Section 324R - Restriction on ability to make plans

51     This section exempts the Minister from making plans for managing places in a Commonwealth reserve or in the Territory of Heard and McDonald Islands. Such places will be covered by other plans.

 

Section 324S - Compliance with plans by the Commonwealth and Commonwealth agencies

52     The Commonwealth or a Commonwealth agency must not contravene a plan for managing a national heritage place under section 324Q.

 

Section 324T - Multiple plans in the same document

53     This section allows for multiple plans for national heritage places to exist in the same document.

 

Section 324U - Review of plans at least every 7 years

54     This section requires the Minister to review plans at least once every 7 years and ensure that the review addresses certain matters.

 

Section 324V - Plans and Commonwealth responsibilities

55     This section provides that the Commonwealth must use its best endeavours to ensure that management plans not inconsistent with the national heritage management principles are prepared for national heritage places that lie wholly or partially within an area under State or Territory jurisdiction.

 

Section 324W - National heritage management principles

56     This section provides for national heritage management principles to be published in the Gazette. The regulations may prescribe obligations to implement or give effect to the national heritage management principles.

 

Section 324X - Sale or lease of national heritage places

57     This section provides for the on-going protection of the national heritage values of a national heritage place on Commonwealth land by requiring that such values are protected by a covenant if the land is sold or let by the Commonwealth.

 

Section 324Y - Commonwealth assistance for protecting national heritage places

58     This section provides for the Commonwealth to give financial or other assistance to State or Territory governments or another person to help identify, promote, protect or conserve national heritage places.

 

Section 324Z - Reviewing and reporting on the National Heritage List

59     This item sets out the reviewing and reporting requirements for the National Heritage List.

 

Item 23 - After Division 3 of Part 15

 

Section 341A - Simplified outline of this Division

60     This item provides a simplified outline of Division 3A.

 

Section 341B - The Commonwealth Heritage List

61     This section sets out how a Commonwealth Heritage List is established, what it must specify and how it may be kept.

 

62     A place may be included in the Commonwealth Heritage List if it is entirely within a Commonwealth area and the Minister is satisfied that the place has one or more Commonwealth heritage values. The Minister has discretion as to whether to include a place with Commonwealth heritage values in the Commonwealth Heritage List.

 

63     This section also provides a definition of Commonwealth heritage place in the Act.

 

Section 341C - Meaning of Commonwealth heritage values

64     This section provides a definition of Commonwealth heritage values in the Act. If a place is included in the Commonwealth Heritage List and Commonwealth heritage values are specified for that place in the Commonwealth Heritage List, that is conclusive evidence that the place has Commonwealth heritage values.

 

65     In deciding whether a place has Commonwealth heritage values, the Minister must consider the criteria in the regulations.

 

Section 341D - Nominations of places

66     This section sets out how someone may nominate a place for the Commonwealth Heritage List and what must be done with the nomination:

                            i.         the Minister must ask the Australian Heritage Council for an assessment of the place’s Commonwealth heritage values; or

                          ii.         the Minister must advise the person who made the nomination of the Minister’s decision not to include the place in the Commonwealth Heritage List.

 

67     The Minister has discretion whether to ask the Council for an assessment or whether to decline to assess a nominated place and so decide not to enter the place on the Commonwealth Heritage List.

 

68     The Council may nominate a place for inclusion in the Commonwealth Heritage List.

 

Section 341E - Emergency Listing

69     Where the Minister considers that a place has one or more Commonwealth heritage values and one or more of these values are under imminent threat, the Minister may include the place in the Commonwealth Heritage List before obtaining an assessment from the Australian Heritage Council. The Minister must advise any nominator of the inclusion of the place on the Commonwealth Heritage List and publish a notice of the listing in accordance with the regulations.

 

70     The section also sets out the period for requesting and receiving an assessment from the Australian Heritage Council after a place is entered in the Commonwealth Heritage List under this provision.

 

Section 341F - Assessments by the Australian Heritage Council

71     This section sets out the timeframe for assessments by the Council for both nominated places (Section 341D) and emergency listing (Section 341E).

 

72     The section also sets out with whom the Council must consult in making its assessment and in what form those assessments must be made.

 

73     The Council must only consider matters relating to the place’s Commonwealth heritage values when making assessments.

 

74     A copy of comments received during the assessment process must be forwarded to the Minister with the assessment.

 

75     The Minister can refer an assessment to the Council in the absence of a nomination.

 

76     The Council must not undertake assessments in the absence of a request from the Minister.

 

Section 341G - Requirement to invite public comments

77     This section sets out the requirement for the Minister to invite public comment on the proposed inclusion of a place in the Commonwealth Heritage List, stipulating that comments must be in an approved form and must be provided within a certain time. The section also sets out when the Minister must publish a notice and what the notice must include.

 

78     The period for public comment is set out depending on whether a place is included in the Commonwealth Heritage List under an emergency listing or not.

 

79     This section also provides an option for the Minister to ask the Australian Heritage Council or, if required, another person with appropriate expertise, to undertake an assessment of public comments on the inclusion of a place in the Commonwealth Heritage List.

 

Section 341H - Decision whether to include a place in the Commonwealth Heritage List

80     This section sets out what the Minister must do after considering any comments which comply with section 341G. The Minister may either include a place in the Commonwealth Heritage List and publish a notice in accordance with the regulations or give reasons to the person who nominated the place as to why the place was not included in the Commonwealth Heritage List. That is, the Minister has a broad discretion as to whether to include a place in the Commonwealth Heritage List.

 

81     In the case of a place that was listed on the Commonwealth Heritage List under an emergency listing process (Section 341E), the Minister may either decide that the place should remain on the Commonwealth Heritage List or decide to remove the place from the Commonwealth Heritage List by publishing a notice in the Gazette. This notice is not a disallowable instrument.

 

Section 341J - Removal of places from the Commonwealth Heritage List

82     This section sets out the Minister’s obligations when removing a place from the Commonwealth Heritage List. The Minister can only remove a place if satisfied that:

                            i.         it is not entirely within a Commonwealth area; or

                          ii.         it no longer has any Commonwealth heritage values; or

                         iii.         it is necessary in the interests of Australia’s defence or national security to do so.

 

83     The Minister must publish an instrument in the Gazette and that instrument is disallowable except with respect to (i) and (iii) above.

 

Section 341K - Minister must consider advice of the Australian Heritage Council

84     Before removing a place from the Commonwealth Heritage List or before removing one or more values from a place in the Commonwealth Heritage List, the Minister must ask for the advice of the Australian Heritage Council. However, the Minister is not required to ask and consider the advice of the Council if the removal is because of Australia’s defence or national security or because the place is not within a Commonwealth area.

 

85     This section sets out the requirements for obtaining advice from the Council, for how the advice must be prepared and the timeframe for the Minister’s decision after receiving the advice.

 

Section 341L - Specifying one or more additional Commonwealth heritage values for a Commonwealth heritage place

86     This section sets out how the Minister can specify in the Commonwealth Heritage List one or more additional Commonwealth heritage values. The place is treated like a new nomination but only for the specified additional Commonwealth heritage values and the original listing of that place is not affected by the requirements of this section.

 

Section 341M - Commonwealth Heritage List must be publicly available

87     The Commonwealth Heritage List must be available on the Internet and must also be available in hardcopy when requested. The copies must be up-to-date.

 

Section 341N - Certain information may be kept confidential

88     This section provides for the Minister to keep confidential details of places where the Minister considers that a place may be significantly damaged by having information disclosed about it publicly. A general description of the place can be used for publication purposes.

 

Section 341P - Duty not to disclose assessments or advice

89     This section specifies that there is a period in which a Council member must not disclose the advice or any related information, except for the official purposes of the Council.

 

Section 341Q - Management plans for Commonwealth heritage places

90     This section requires a Commonwealth agency that owns or controls a Commonwealth heritage place to prepare a plan for managing that place. The section sets out the requirements that must be met by such plans.

 

91     A Commonwealth agency must seek, and take into account, advice from the Minister in relation to proposed management plans. The Minister, before giving advice, must consult with the Council.

 

Section 341R - Accrediting management plans for Commonwealth heritage places

92     This section provides for the Minister to accredit management plans that have been prepared by a Commonwealth agency for Commonwealth heritage places. The Minister may accredit the plan if satisfied that it adequately provides for the conservation of the Commonwealth heritage values of the place. The Minister must not accredit the management plan if the Minister believes it is inconsistent with the Commonwealth heritage management principles.

 

Section 341S - Restriction on ability to make plans

93     This section provides that a Commonwealth agency must not make a plan for a Commonwealth heritage place that is in a Commonwealth reserve or the Territory of Heard and McDonald Islands. Such places are covered by other plans.

 

Section 341T - Compliance with plans by the Commonwealth and Commonwealth agencies

94     The Commonwealth or a Commonwealth agency must not contravene a plan for managing a Commonwealth heritage place under section 341Q.

 

Section 341U - Multiple plans in the same document

95     This section allows for multiple plans for Commonwealth heritage places to exist in the same document.

 

Section 341V - Review of plans at least every 7 years

96     This section requires the Minister to review plans at least once every 7 years and ensure that the review addresses certain matters.

 

Section 341W - Commonwealth heritage management principles

97     This section provides for Commonwealth heritage management principles to be published in the Gazette. The regulations may prescribe obligations to implement or give effect to the Commonwealth heritage management principles.

 

Section 341X - Obligation to assist the Minister and the Australian Heritage Council

98     This section sets out that Commonwealth agencies must assist the Minister and the Australian Heritage Council to identify and assess Commonwealth heritage values in places under their ownership or control.

 

Section 341Y - Requirement to ask Minister for advice

99     This section prescribes that a Commonwealth agency must seek the Minister’s advice before taking an action that has, will have or is likely to have, a significant impact on a Commonwealth heritage place. Advice need not be sought if an accredited management plan is in force for that place and the action is provided for by, and will be taken in accordance with, the plan.

 

Section 341Z - Sale or lease of Commonwealth heritage places

100 This section provides for the on-going protection of the Commonwealth heritage values of a Commonwealth heritage place by requiring that such values are protected by a covenant if the land is sold or let by the Commonwealth.

 

Section 341ZA - Commonwealth assistance for protecting Commonwealth heritage places

101 This section provides for the Commonwealth to give financial or other assistance to State or Territory governments or another person to help identify, promote, protect or conserve Commonwealth heritage places.

 

Section 341ZB - Reviewing and reporting on the Commonwealth Heritage List

102 This section sets out the reviewing and reporting requirements for the Commonwealth Heritage List.

 

Item 24 - At the end of subsection 367(1)

103 When making a plan for a Commonwealth reserve and the reserve includes a national heritage place or a Commonwealth heritage place, there is a requirement to take into account the national heritage management principles or Commonwealth heritage management principles as the case may be.

 

Item 25 - Subsection 391(3) (after table item 11)

104 This item refers to the Minister’s obligation to consider the precautionary principle when making a plan for managing a national heritage place that is entirely within one or more Commonwealth areas.

 

Item 26 - Subsection 391(3) (after table item 13)

105 This item refers to the Minister’s obligation to consider the precautionary principle when deciding whether to accredit a plan for managing a Commonwealth heritage place.

 

Item 27 - Subparagraph 495(2)(a)(i)

106 This item provides that the executive officers of a body corporate will be, in some circumstances, liable for offences by the body corporate in relation to national heritage places.

 

Items 28 to 40 (inclusive) - Section 528

107 This item sets out the meaning, within the Act, of the following terms:

§   Australian Heritage Council

§   Commonwealth Heritage List

§   Commonwealth heritage management principles

§   Commonwealth heritage place

§   cultural heritage (removal of definition)

§   heritage value

§   indigenous heritage value

§   National Heritage List

§   national heritage management principles

§   natural heritage (removal of definition)

§   national heritage place

§   national heritage values

§   place

 



SCHEDULE 2 - AMENDMENTS RELATING TO THE DIRECTOR OF INDIGENOUS HERITAGE PROTECTION

 

Environment Protection and Biodiversity Conservation Act 1999

 

Item 1 - After subsection 324F(2)

108 This item provides for the Council to seek the advice of the Director of Indigenous Heritage Protection on nominations for the National Heritage List that the Council considers may have indigenous heritage value.

 

Item 2 - After subsection 341F(2)

109 This item provides for the Council to seek the advice of the Director of Indigenous Heritage Protection on nominations for the Commonwealth Heritage List that the Council considers may have indigenous heritage value.

 

SCHEDULE 3 - TRANSITIONAL PROVISION: PLACES INCLUDED IN THE REGISTER OF THE NATIONAL ESTATE

 

Item 1 - Places may be taken to be included in the Commonwealth Heritage List

110 This item provides that the Minister may determine that places on the Register of the National Estate (including the Interim List) are to be transferred to the Commonwealth Heritage List without a formal assessment by the Council. This can occur only within 6 months of the new regime commencing.