Chapter 5 - Administration of the National and Commonwealth Heritage Lists
An extensive component of Australia’s national
heritage is in public ownership, under the stewardship of the Commonwealth
Government ... . The Australian people are the owners of these heritage
properties and the Commonwealth has a responsibility to conserve and sustain
these assets.[1]
Introduction
5.1
As has been discussed in earlier chapters, the
single most significant change proposed by the bills is the replacement of the
existing Register of the National Estate with two smaller, but more strongly
protected lists: the National Heritage List and the Commonwealth Heritage
List. While the Committee broadly supports the development of the National and
Commonwealth Heritage Lists, there are a number of issues identified in
submissions which need further consideration. These issues are:
- the scope of the lists;
- the assessment criteria and management principles;
- opportunities for external comment;
- ministerial accountability;
- removal of places from the list;
- heritage surveys and registers;
- the application of state laws to Commonwealth land;
- review and reporting requirements;
- compensation;
- program funding; and
- thematic listing.
5.2
Enforcement and protective provisions are
discussed in the following chapter.
Scope of the lists
5.3
The Committee has heard two main views expressed
in relation to the scope of the two proposed heritage lists: the National
Heritage List and the Commonwealth Heritage List. The first is that the new
system proposes to implement a graded system of lists, and in doing so will
need to determine the nature of the heritage significance of places nominated
for listing. Thus, decisions will need to be made not only as to whether a
place has heritage significance, but also whether the significance is local,
regional, or national. This consideration will then determine whether the
place will be listed and if so, whether it should appear on a local, state or
territory, or federal list.
5.4
The Australian Conservation Federation argues
against this system, claiming that the National Trusts unsuccessfully explored
the use of graded or selective lists decades ago.[2] According to the Australian
Council of National Trusts, there are:
... serious concerns about the concept of a restricted National Heritage
List. Australia’s natural and cultural heritage is constantly evolving through
environmental and historical change. Hence, judgements of heritage
significance are also evolving. The concept that there could be fixed ‘levels’
of importance, enabling a finite national heritage list, is inherently flawed.
There will be a few places with generally agreed iconic national status. There
will also be many places of only local significance. Between these extremes
there will be a very large array of places with no ‘fixed’ status.[3]
5.5
The second issue raised is that as the guiding
principle of the new arrangements should be to strengthen overall protection
for heritage properties, all properties listed on the RNE should be transferred
to the one of the two new lists. As one submission noted, this would accord
with the growing protection afforded to heritage in other western countries:
In all western countries over the last 30 or so years there has
been a progressive strengthening of heritage protection, reflecting increasing
public awareness of the significance of heritage protection. Lists and
registers have grown very much larger. In the UK there are now over 440,000
places on national heritage building lists. In the US, with a federal system
of government, there are now over 60,000 places on the National Register of
Historic Sites. These are historic sites only.[4]
5.6
Mr Simon Molesworth QC, representing the
Australian Council of National Trusts, argues that a direct incorporation of
the RNE into the new lists is the most efficient use of the register:
Why on earth does the new bill have a provision in it that says
the minister may approve the incorporation of places listed in the
registered national estate in the Commonwealth list? Why do we have to reinvent
the wheel? Surely the excellence of the work of the Australian Heritage
Commission over the last 26 years is such that you do not have to go back and
again look at the Melbourne Town Hall or look at rock art sites and Kakadu and
say, ‘Do you thing we ought to put this on or not?’, call for inquiries, go
through the process.[5]
[italic added]
5.7
The Committee notes that decisions on what
places will go onto either of the two lists will depend on the criteria for
Commonwealth or National heritage values. These criteria are still to be
finalised, although the criteria for the National List are available in draft
form.[6]
5.8
The Committee also notes that the probable size
of either list remains unclear. As Mr King, Chair of the AHC commented during
hearings, the National List is likely to contain certain obvious sites such as
the Sydney Harbour foreshores, the Gippsland forest, Uluru, and Riversleigh[7] but there are no indicative
lists.
5.9
The Committee considers the suggestion of
placing all RNE sites that are on Commonwealth land onto the Commonwealth
Heritage Register is an attractive proposition since it should result in
greater protection of Commonwealth heritage places. The key criteria for the
Commonwealth list revolves around Commonwealth ownership of the land and is not
tied to any particular level of heritage significance. As was discussed in
Chapter 2, Commonwealth land is not subject to state or territory law, and
following the impasse in negotiations, it does not seem likely that the
Commonwealth will bind itself to state laws in the foreseeable future, although
the Committee considers that it should do this. Consequently, since heritage
sites on Commonwealth land cannot be protected by any other law, they must
remain under the protection of the Commonwealth.
5.10
There are two ways in which this could occur.
First, as discussed in Chapter 4, entries on the RNE would, according to the
Department, receive protection via sections 26 and 28 of the EPBC Act. Second,
they could be transferred directly to the Commonwealth Heritage List.
5.11
The Committee considers that the second of these
offers clearer protection but that this should be augmented by recognising
Commonwealth heritage places as matters of national environmental significance.
Recommendation
5.1
The Committee recommends
that the Government incorporate all heritage properties on Commonwealth land
that appear on the Register of the National Estate into the Commonwealth
Heritage List.
Recommendation 5.2
The Committee recommends
that Commonwealth heritage places should be recognised as matters of national
environmental significance.
The assessment criteria and management principles
5.12
Two of the key documents that will affect the
administration of the proposed heritage protection regime are the criteria for
Heritage Values[8]
and National Heritage Management Principles.[9]
The criteria are used to determine whether a nominated place has heritage
values, and the Minister is required to set these out in regulations. The
management principles provide the basis for the management arrangements of all
listed places.[10]
5.13
Two principal concerns have been raised with the
Committee in relation to these documents. The first is that while both types
of document are fundamentally important to the operation and effectiveness of
the bills, neither have been publicly released for comment (noting however that
the draft criteria for assessment of places on the National List were released
last year). According to one submission:
... without finalised criteria, it is extremely difficult to reach
any conclusions about the implications of the proposed regime. The criteria
are particularly important as they will correspond to the national heritage
values – a vital consideration in the referrals and assessment process under
the EPBC Act.[11]
5.14
And elsewhere:
[T]hese principles are vital to a number of processes under the
proposed legislation. For example, the national heritage management principles
will be essential considerations before entering into bilateral agreements or
making Ministerial declarations in relation to national heritage places. They
are also fundamental to the preparation and review of management plans for all
heritage places.
Once again, this is an example of key information which is not
set out in the proposed legislation. The detail to be contained in these
principles is left completely up to Ministerial discretion, and will not be
subject to any formal public scrutiny.[12]
5.15
These concerns suggest that without an
examination of these documents, no effective review of the proposed regime is
possible.
5.16
Mr Leaver, of Environment Australia, responded
in hearings that:
Whilst a considerable amount of work has been done on management
principles, national heritage management principles and Commonwealth heritage
management principles, a considerable amount more work needs to be done,
particularly on the very difficult melding together of the various heritage
environments, including indigenous heritage. It is the department’s view that
these are best detailed in regulations to the act, rather than the act itself,
to provide flexible tools that can be changed relatively easily over time as
the understanding and concepts relating to these difficult heritage issues are
discussed and ways forward are worked through with the community.[13]
5.17
The Committee appreciates the difficulties faced
by the department in formulating these documents. Nevertheless, they are
critical to an understanding of how the proposed regime will operate in
practice. Although when the final versions of these documents are released in
the future, they will no doubt be discussed in detail, the fact remains that
both the public and Parliamentary debate about the proposals is occurring now,
and the absence of key documents limits the capacity to make a fully informed
judgement on the merits of the bills.
5.18
The Committee also considers that in relation to
the assessment criteria for the Commonwealth list, this should remain the same
as the current criteria for the RNE.
Recommendation 5.3
The Committee recommends
that the Minister should release the Commonwealth Heritage Values criteria, and
the Management Principles in draft or final form, before any final debate of
the bills takes place.
5.19
In relation to the second issue, submissions
have argued for the need to release the management principles as regulations
subject to disallowance, in order to ensure the accountability of the documents
to the Parliament. According to WWF, the proposed approach is:
inconsistent with the Ramsar wetland Management Principles (s
335) and the World Heritage Management Principles (s 323), which are contained
in (disallowable) the EPBC Regulations.[14]
5.20
The Environmental Defender’s Office mirror these
comments and state:
In this regard, we note the Commonwealth Government’s assurance
to the World Heritage Committee in November 2000 that Australia was introducing
National Heritage amendments to give nationally significant sites an equivalent
level of protection enjoyed by World Heritage sites.[15]
5.21
This view is shared by several of the state
governments, stressing the need for both consultation with the states, and the inclusion of all key documents in
the legislation itself; as a schedule to the Act, or as regulations.[16] The South Australian
government points out that this has been the practice in their equivalent state
legislation in the Heritage Act 1993 and the Development Act 1993.[17]
5.22
The Committee recognises that locating the
Management Principles as gazetted documents rather than as regulations, offers
advantages of administrative flexibility and the capacity to evolve their
contents. However, the Committee considers that in the interests of
transparency and accountability, it is more important that the Management
Principles be released as part of the regulations.
Opportunities for external comment
5.23
A number of submissions received by this inquiry
have argued that the regime proposed by the bills offers inadequate opportunity
for public involvement.
5.24
The Committee notes that the bills offer a
number of opportunities for public participation, including: the requirement to
invite public comments prior to listing a place;[18] the requirement that the
heritage lists be publicly available;[19]
as well as the reporting requirements discussed below.[20] In making assessments of
heritage values, the Australian Heritage Council is obliged to give a place’s
owner/occupier and any indigenous persons with rights or interests a reasonable
opportunity to comment.[21]
5.25
The Department also noted that the inclusion of
the heritage protection regime into the EPBC Act gives interested persons the
opportunity to ensure compliance through the injunction provisions of section
475 and the natural justice and procedural fairness provisions of section 487.[22]
5.26
Several groups believe that these provisions do
not go far enough in providing avenues for public involvement in decision
making and consultation, which should extend to the preparation of key
documents such as the Heritage Values; the Management Principles; and
management plans.[23]
The Environmental Defender’s Office also recommend that all nominations received
by the Minister should be automatically advertised for public comment.[24]
5.27
The state governments also argued strongly that
the bills should give much greater opportunity for state and territory
involvement in the listing process. The Tasmanian government argues:
The legislation should provide for automatic referral of
nominations to the relevant state or territory for comment and this comment
should be considered in the decision making process.[25]
5.28
The NSW government makes a similar point:
[T]here is no provision in the proposed legislation for the
Commonwealth to consult with relevant state and territory governments before
adding places to the National Heritage List.
There was strong agreement at previous meetings of State and
Commonwealth officials that consistent with the COAG Heads of Agreements, the
preparation and management of the NHL should be undertaken in a cooperative
manner between the Commonwealth and the States. The listing of places on the
NHL should only be undertaken after consultation and agreement with the
relevant state or territory.[26]
5.29
According to the Victorian government:
Victoria believes that the state or territory interests or
involvement in properties nominated for the National List is no less than for
World Heritage properties. Therefore the state or territory participation in
the process for listing properties to the National List should not be less than
that provided for listing World Heritage properties.[27]
5.30
A key aspect of any legislative reform is the
role for public participation in decision making processes. The Committee
considers that maximising such opportunities is part of best practice public
administration, and reflects a strong community expectation that government and
their agencies will operate in an open and transparent way. This is
particularly so in relation to decisions on the management and protection of
heritage properties.
5.31
If it is to be effective, consultation must
cover both specifically affected individuals and groups as well as the wider
community, and offer sufficient time for the consideration of a proper
response. In this respect it is worth noting that object 3(1)(d) of the
EPBC Act, refers to the need to ‘promote a co-operative approach to the
protection and management of the environment involving governments, the
community, land-holders and indigenous peoples’.
5.32
For these reasons, the Committee considers that
as a general proposition every opportunity for public involvement should be
maximised. In most respects though, the Committee considers that this principle
is complied with. The Committee does, however, feel that there should be an
opportunity for public comment on the draft regulations which should include
the Heritage Values and Management Principles. The Committee also would expect
that, in line with past practice, the Department will provide opportunities for
consultation on all key documents, including the Management Plans.
5.33
The Committee does not, however, agree with the
states’ proposition that they should have an effective veto over listings. As
noted in Chapter 2, this issue has been one of several causes of the breakdown
in negotiations between the states and the Commonwealth. The Committee agrees
with the Commonwealth government that listing and protection of places of
identified national significance should not require the prior agreement of the
relevant state or territory government.
Ministerial accountability
5.34
Submissions reflect a concern that the bills do
not provide adequate accountability mechanisms for ministerial
decision-making. Under the proposed legislation, the Minister is obliged to
advise the nominator of reasons for choosing not to accept a nomination;[28] or not to list;[29] the Minister must publish a
Statement of Significance prior to listing a property on either of the Lists;[30] and the both lists must
specify the heritage values for which they were listed.[31] The Minister must also table
reasons in each House of Parliament explaining the decision to remove a place
from a List.[32]
5.35
Submissions have argued that these provisions do
not go far enough. According to the Association of Minerals and Exploration
Companies:
The bill’s processes are essentially a ‘closed shop’ closed to
all but the Minister, his advisers, his Department and the Australian Heritage
Council, a Council which reports exclusively to him and whose members he
appoints.[33]
5.36
Accordingly, some submissions have argued that
in the interests of transparency and accountability the Minister should be
required to publish reasons for decisions not to accept a nomination or not to
list, rather than merely advise the nominator.[34]
The Minister should also make public all heritage assessments of the AHC,[35] in place of the proposed
prohibition on the AHC from disclosing their assessments.[36]
5.37
In considering these issues, Environment
Australia notes there are several reasons why the reasons for Minister’s
decisions not to accept nominations are only provided to the nominator:
Publicising the results of a nomination can often have a
significant adverse impact on the nominee, particularly in rural or regional
communities. The experience is that often heritage listing of a place can be
bitterly resented by some and the nominee can be socially ostracised or face
worse impacts. The heritage nominations on Norfolk Island mentioned in
Mosley’s evidence has precipitated this type of reaction.[37]
5.38
Environment Australia also note that Principle
11 of the Privacy Act 1988 places limits on disclosure of personal
information. Also, the reasons for a Ministerial decision have to be given to
any interested person through the operation of section 13 of the Administrative
Decisions (Judicial Review) Act 1977.[38]
5.39
Many of the considerations discussed in the
preceding section apply equally to this issue. For a heritage protection
regime to have credibility, especially given the often controversial nature of
the debate, it is essential that the Minister be fully accountable for all
important decisions. On this point the Committee notes the views of Mr
Molesworth:
There is a long-standing practice of good government to always
write laws for the worst governments because, as time goes by, you can have
very good ministers, you can have less good ministers and you can have bad
ministers.[39]
5.40
The Committee views the assessments of the AHC
as being centrally important to the process of public accountability especially
given that in Chapter 3, the Committee argued that the Australian Heritage
Council should have the final decision on listing. Listing decisions are
limited to heritage considerations, while the Minister is expected to take into
account the wider range of economic and social considerations in coming to
decisions on management arrangements. For this process to be transparent, the
AHC assessment of listing should be a public document.
5.41
The Committee recognises the privacy issues
raised by the Department but does not consider them to pose insurmountable
obstacles to disclosure. The privacy of nominations could and should be
protected, but this does not mean that the assessments should not be published.
5.42
It is arguable that the bills already provide
for the release of much of the assessments. As mentioned, sections 324H and
341H of the Heritage Bill require the publication of a statement of heritage
values for every place listed. However, this may or may not amount to information
as detailed and specific as that provided in the AHC assessment. However, this
section does not provide for the publication of assessments when places are not
listed.
5.43
Also sections 324P and 341P of the Heritage Bill
impose certain duties on members of the AHC not to disclose assessments or
advice. The implications of this section are not clear, and while appearing
not to prohibit disclosure under certain circumstances, they do not impose any
positive obligation to publish AHC assessments. The Committee believes they
should.
5.44
However in
relation to public disclosure, the Committee recognises the need to properly
protect certain types of information, such as the location and significance of
certain kinds of aboriginal sites. Accordingly, the Committee endorses the
confidentiality provision proposed in sections 324N and 341N of the Environment
and Heritage bill.
Recommendation 5.4
The Committee recommends
that the Environment and Heritage Legislation Amendment Bill (No. 2) 2000 be
amended to require the release, on request, of AHC assessments of heritage
values and listing.
Removal of places from the list
5.45
The bills provide several mechanisms for removal
of places from the two lists by the Minister.[40]
The first is where the places do not have any national/Commonwealth heritage
values. The second is when ‘it is necessary in the interests of Australia’s
defence or security to do so’. To effect a removal, the Minister must gazette
the removal, together with a statement of reasons laid before both Houses of
Parliament. A key difference however, is that whereas the instrument is
subject to disallowance on the first ground, it is not disallowable in relation
to removal on defence or security grounds.
5.46
This has been the subject of some criticism on
the grounds that the terms ‘defence or national security’ are not defined and
therefore liable to abuse. ATSIC note the recommendations of the Justice Woodward Royal Commission into Aboriginal
Land Rights in the 1970’s in relation to the national security over-ride:
The over-ride was for
eventualities such as national emergencies and it was not to be used for more
trivial matters such as the economic status of any corporation or employment.
However to safeguard the process for such an over-ride, Woodward recommended
that the instrument to over-ride the veto ought to be a disallowable instrument
... .[41]
5.47
The Australian Council of Professional
Historians’ Association add their concern that the use of the general terms
‘defence and security reasons’ may enable an opportunistic interpretation that
could include any matter relating to the operations of defence or security
agencies.[42]
5.48
Conversely, the South Australian government and
the Australian New Zealand Minerals and Energy Council (ANZMEC) argue that the
bills should be amended to enable both state governments and the owner or
occupier to require the Minister to consider whether to remove a place from a
list.[43]
5.49
The Committee shares the concerns relating to
the scope of the ‘defence or security’ provisions for removal from a list,
particularly as it is not subject to review or disallowance, in the way
ordinarily foreseen by the bills for removal of places. The generality of the
terms opens the possibility for abuse, and the Committee concludes that the
provision should be tightened.
5.50
The Committee does not agree that states,
territories or land owners/occupiers should be given the right to compel the
Minister to consider removing a place. Where a place is listed and managed
appropriately, it would not be expected that there would be many instances of
the heritage values of that place being lost. Similarly, where the place is
listed following a proper assessment and public comment, the listing should not
need re-evaluation and constant retesting. The Committee considers that the
inclusion of the provisions suggested is therefore unnecessary.
Recommendation 5.5
The Committee recommends the
Government consider amendments to sections 324J and 341J of the Environment and
Heritage Legislation Amendment Bill (No. 2) 2000 that would serve to either
clarify the exact meaning of the phrase ‘in the interests of Australia’s
defence or security’, and require that decisions to remove a place from a
Commonwealth or National Heritage List be executed by disallowable instrument.
Heritage surveys and registers
5.51
A recurring problem on Commonwealth property
appears to be mismanagement of heritage properties caused by a failure of
individual agencies to properly identify their significance. According to Ms
Sullivan:
Commonwealth buildings, and areas of great natural heritage
under the control of the Commonwealth have been neglected, misused, sold off to
the highest bidder, or returned to the states in an extremely dilapidated
condition.[44]
5.52
Similar comments were made by the Australian
Council of National Trusts:
Under the present regime, few Commonwealth agencies have identified all of their heritage properties
and those that have identified some and developed management plans often act in
disregard of those plans. Most Commonwealth-owned property is being
disposed of without any assessment or public consultation.[45]
5.53
Mr Peter King, Chair of the Australian Heritage
Commission, expressed this view:
The Commonwealth, frankly, has not had a good record of looking
after its own heritage, which is a matter of which the Commonwealth cannot be
proud, and successive governments have failed to properly identify and conserve
their own heritage – such as the wonderful post offices, defence facilities and
many other places of natural and cultural significance right around this
country.[46]
5.54
This problem may have worsened since the 1989
devolution of the property management function to individual agencies and away
from the centralised control of the Department of Administrative Services. The
Schofield Report notes that it has not been the role of the AHC to undertake
identification of heritage property. Neither is there recognition of
responsibility for the identification and conservation of heritage property in
the legislation or Corporate Plans of most Commonwealth entities:
As a result there has been no comprehensive program for the
identification of all Commonwealth owned heritage properties and most
identification has been done by non-Commonwealth bodies (such as the National
Trust).[47]
5.55
The bills appear to maintain this position, in
that section 341X of the Heritage Bill requires Commonwealth agencies that own
or control places that have or might have heritage values:
must take all reasonable steps to assist the Minister and the
Australian Heritage Council in the identification and assessment of the place’s
Commonwealth heritage values.
5.56
It was put to the Committee that this provision
does not go far enough in correcting the problem of the lack of identification
of heritage places, identified in the Schofield Report.[48] According to the Australian
Conservation Foundation:
Among other recommendations in the Schofield Report that have
not been adopted by the Commonwealth or incorporated in these Bills is the
recommendation that the Commonwealth implement a three-year program to identify
and list in the RNE all Commonwealth places of heritage significance. This
would seem to be a highly important duty for the Commonwealth to accept in its
approach to looking after its own heritage, especially as it is well recognised
that a full inventory of Commonwealth heritage has never been carried out.[49]
5.57
Professor Lennon makes a similar point, and
suggests amending section 341X to require Commonwealth agencies to:
- seek to conserve heritage places under their control;
- identify heritage places and keep an inventory;
- undertake a survey of places under their control to identify
those with heritage value. The initial survey to be completed by 2003;
- survey within 6 months any new places brought under their
control, to identify heritage values;
- surveys shall conform to guidelines and standards provided by the
Australian Heritage Council; and
- Commonwealth agencies will review their inventories at least
every 5 years.[50]
5.58
An alternative suggestion is that the bills be
amended to require an inventory of heritage sites on Commonwealth land and
Commonwealth properties similar to the current requirement for threatened
species contained in section 172 of the EPBC Act.[51]
5.59
The Committee agrees with these views, and
considers that it is fundamental to the proper and methodical management of
Commonwealth property, that a proper effort is made to thoroughly assess the
heritage values of places in the Commonwealth property portfolio. This has
become particularly important in the current devolved environment. The Committee
also considers that the heritage values of places should be known before
decisions are made to sell or dispose of property.
Recommendation 5.6
The Committee recommends
that the Government amend the bills to require Commonwealth agencies to implement
a heritage inventory of their property portfolios that will properly identify
and assess heritage values. Commonwealth agencies should be further required
to review their inventories at least every five years.
Recommendation 5.7
The Committee recommends
that the Government amend the Environment and Heritage Legislation Amendment
Bill (No. 2) 2000 to require Commonwealth agencies to prepare and maintain a
heritage strategy for the management of their heritage places as was
recommended by the Schofield Report.
Recommendation 5.8
The Committee recommends
that the Government amend the Environment and Heritage Legislation Amendment
Bill (No. 2) 2000 to require Commonwealth agencies to undertake a survey of the
heritage values of all newly acquired properties in accordance with standards
and guidelines provided by the Australian Heritage Council.
Application of state laws to Commonwealth land
5.60
The Committee has heard some debate on the
extent, if any, to which Commonwealth agencies managing heritage places should
be bound by state/territory laws. As a matter of law, Commonwealth land is not
subject to state or territory law by reason of the grant to the Commonwealth of
exclusive law making powers in relation to Commonwealth land in section 52(2)
of the Australian Constitution. Nevertheless, the Commonwealth may exercise
the option of deeming itself bound by state/territory law.
5.61
Some submissions have argued that obliging
Commonwealth agencies to comply with state/territory heritage protection
regimes would lead to better protection. As the Schofield Report states:
Very few Commonwealth agencies list their properties in
state/territory registers, a move criticised by states ... . Conversely, in some
instances, state/territory governments have been reticent to include
Commonwealth properties on their registers because of the limitations on
protection implied by the Commonwealth’s immunity from state/territory
legislation ... .[52]
5.62
The report accordingly goes on to recommend that
Commonwealth agencies ‘have full regard to state and territory heritage and
planning regulations where practicable’.[53]
This view is supported by the Australian Council of National Trusts, who note
that this is consistent with the COAG agreement, in which the governments:
Agree to increased compliance by Commonwealth and State
departments, statutory authorities, agencies, business enterprises and tenants
with the relevant state’s environment and planning [including heritage] laws.[54]
5.63
The ACNT comment that this intention was then
carried through in the AHC briefings during 2000:
All Commonwealth Government Business Enterprises (GBEs), non-GBE
companies, statutory authorities whose primary functions are commercial, and
business units, would be required to comply, and non-compliant Commonwealth
agencies, were to secure approvals in accordance with Commonwealth measures
which are at least equivalent to the environment and planning laws of the
relevant state.[55]
5.64
Among the states, Tasmania was also expecting to
see Commonwealth compliance with state and territory laws:
The Tasmanian government was advised that the new legislation
would contain provisions by which the Commonwealth would have to comply with
State law. The Bill contains no such provision and there is no acknowledgement
of existing State processes.[56]
5.65
According to the Tasmanian government, the
absence of compliance can cause significant problems:
The Hobart General Post Office (GPO) offers a prime example of
the problem of the Commonwealth not complying with State processes. The post
office building has historic heritage values and certain restrictions are
placed on works to the site. In late 2000, the GPO decided to erect a neon
sign adjacent to the building. The normal planning requirements set out by the
State were completely ignored because the GPO was able to use Commonwealth
exemptions to avoid them.[57]
5.66
As was examined in Chapter 2, the absence of
provisions binding the Commonwealth to state or territory laws on Commonwealth
places can be attributed in large part to the failure of negotiations on the
bilateral agreements. Nevertheless, the Committee notes that the bills and the
EPBC Act provide the framework for the eventual accreditation of state and
territory laws, processes and decisions.
5.67
The Committee also notes that there is a general
public expectation that heritage places on Commonwealth land will be managed to
a uniform standard in accordance with best practice. The Committee has heard
evidence demonstrating wide divergence in state and territory laws,
definitions, and practices across the heritage protection field. Until uniform
Australian standards are agreed upon, it would be impractical for the
Commonwealth government to base heritage protection on Commonwealth land solely
upon state and territory laws.
5.68
In considering these issues, the Committee
concludes that the Commonwealth government should continue to actively
negotiate with the state and territory governments to work towards the
agreements envisaged in the Schofield Report and the terms of the COAG
Agreement. In addition, Commonwealth agencies, should commit to compliance
with relevant state or territory planning and heritage laws; where two
protective regimes apply, the Commonwealth should bind itself to whichever law
offers the maximum level of protection. Commonwealth departments and agencies
should also begin listing Commonwealth properties on relevant state, territory
or local government heritage registers.
Review and reporting requirements
5.69
The bills propose a number of reporting
obligations, including reviews of heritage listed management plans at least
every seven years,[58]
and a review of and report on the two heritage lists at least every ten years.[59]
5.70
Submissions have argued that in both cases, the
stipulated timeframe is too long, suggesting that both management plans and
heritage lists need to be reviewed every five years. Adoption of this
time-scale would also relate the reviews to the existing five year State of the
Environment reporting period,[60]
and be consistent with the review requirements for World Heritage management
plans.[61]
5.71
A second issue in relation to the heritage list
review is the content of the reports themselves. Submissions recommend
amendments to require consideration of broader matters than are stipulated in
the bills.[62]
The Environmental Defender’s Office suggests the reports on the heritage lists
should include:
- Details of nominations referred to
the Council, including details of Council’s assessments and final
determinations.
- The extent and nature of the sale of Commonwealth properties, and
the impact on heritage values.
- Strategic issues and indirect impacts upon National/Commonwealth
Heritage Values. For instance, impacts brought on by Commonwealth, State and
local environmental planning and development processes.
- Australia’s compliance with the World Heritage Convention.
- The effectiveness of and compliance with heritage standards
across the nation.
- The effectiveness of heritage protection under any bilateral
agreement with States and Territories.[63]
5.72
According to another submission the reports should
include:
details of assessments and approval (including any conditions on
those approvals) under the EPBC Act in relation to places included in each
list, details on the monitoring of compliance with those approval, and the
general level of compliance with the EPBC Act requirements relating to national
and Commonwealth heritage places.[64]
5.73
Sydney Water made the added point that where
possible the Commonwealth and the states should set up common reporting:
Sydney Water already reports on such matters to the NSW Heritage
Council/Office. Sydney Water recommends that the Commonwealth and states
liaise so that the reporting format suitable for reporting to the Parliament is
such that the state information can be forwarded to the Minister for inclusion
in the report to Parliament, thus avoiding further duplication of reporting by
an organisation.[65]
5.74
The Committee agrees with these views and
reiterates the comments made earlier in this chapter on the importance of
transparency and accountability. Information is a key prerequisite for public
participation. Effective monitoring of the outcomes of heritage protection,
and proper comparison across lists and times, also requires comprehensive
information that is as standardised as possible.
Recommendation 5.9
The Committee recommends
that the Environment and Heritage Legislation Amendment Bill (No. 2) 2000 be
amended to require reviews of management plans for both the National and
Commonwealth Heritage Lists every five years.
Recommendation 5.10
The Committee recommends
that the Government consider broadening the reporting requirements to include
the range of matters suggested by submissions.
Recommendation 5.11
The Committee recommends
that Commonwealth Departments and agencies detail the implementation of their
heritage strategies in their annual reports.
Compensation
5.75
The EPBC Act refers to compensation for the
acquisition of property,[66]
in accordance with the requirements of paragraph 51(xxxi) of the Australian
Constitution. The Association of Mining and Exploration Companies (AMEC) raise
their concern that the provision for compensation is too narrow and does not
adequately recognise other categories of loss that may occur when properties
are listed on one of the heritage lists:
In AMEC’s view, this treatment of the compensation issue is
totally inadequate ... There are a whole range of other losses people could
suffer as a result of heritage listings, ranging from decreases in property
values, loss of access resources, eg water and loss of future income.
The compensation payable by the Commonwealth clearly needs to be
extended past the single category of property acquisition... .[67]
5.76
The Committee has not received enough evidence
on this issue to form any conclusions on the extent or the exact nature of the
costs that may be associated with heritage listing of a property. It does,
however, consider that AMEC raise an important point, which should receive
further consideration.
5.77
The Committee considers that as a matter of
general policy, where the Australian people wish to protect a place for its
heritage values, the owners of such places should, as much as possible, not
suffer financial disadvantage. The Committee notes, however, that as with
planning laws which have similar impacts, some positive, some negative,
mandatory compensation is not an effective policy nor is it a policy that is
generally applied in Australia or elsewhere. In addition, the Committee notes
that heritage listing, in some instances, increases the value of a property.
Recommendation 5.12
The Committee recommends
that the Government give further consideration to the range of measures offered
to assist the owners of heritage properties including grants and tax and other
concessions.
Funding issues
5.78
The bills provide for ‘financial or other
assistance for the identification, promotion, protection or conservation’ of a
Commonwealth or National heritage place.[68]
This contrasts to the provision in the AHC Act for the National Estate Grants
Program[69]
and the mandate for the AHC to administer it.[70]
5.79
The National Estate Grants Program has since
been changed into the Cultural Heritage Projects Program. In 1999/2000, the
AHC considered 401 applications under this program, and the Minister provided
financial assistance to 44 projects valued at $3.25 million.[71] This program is designed to
conserve places of cultural significance – built and indigenous heritage, but
does not include natural heritage places.[72]
5.80
Submissions raised the concern that future
Commonwealth funding of heritage places will be restricted to the probably
smaller number of places on the two new lists, which witnesses argue amounts to
a further withdrawal by the Commonwealth from its national leadership role. Mr
Molesworth, Australian Council of National Trusts, notes that funding:
... may be available to heritage properties on the Commonwealth
list and there is funding that may be available to heritage properties that are
on the national list. There is no provision in the proposed legislation to
provide funding generally to the vast number of other significant heritage
properties in this country.
Under the old National Estate grants program, the eligibility
was listing on a heritage register, not just on the National Estate list but
also on the state lists. So the Commonwealth was able very proactively to
protect, in a way, by providing the incentive of money, and it was available
right across the board to all listed properties. What we have now is a
possibility of that method of the Commonwealth protecting heritage being
restricted just to the national list and the Commonwealth list – excellent for
those properties that happen to be on those lists; sad for those that are not.[73]
5.81
The Australian Council of National Trusts
further comment that:
In the past 25 years NEGP funding has made an immense contribution
to practical conservation and to pioneering work in identifying and
interpreting heritage places.[74]
5.82
These changes have also attracted the criticism
of state governments. By transferring management of most heritage places to
the states and territories, the bills will also transfer responsibility for the
funding of heritage protection of these places to the states and territories.
This has major budgetary implications.
5.83
According to the NSW government, the
Commonwealth must fund ‘the additional costs that [NSW] incurs as a result of
exercising its responsibilities under the new legislation’.[75] And further:
Commonwealth financial assistance should be available to owners
of heritage properties regardless as to whether they are of National, state or
local heritage significance.[76]
5.84
The South Australian government adds that:
It is considered that the intentions of the Commonwealth in
respect of the continued provision of funding assistance for the protection and
management of other Australian heritage assets, in accordance with the
significant role that it has played historically, should be clarified,
discussed and agreed with the states. Also, the implications for states’
resources of the proposed cooperative development of a management plan for the
national heritage places need to be considered and understood to ensure that
arrangements for financial and other assistance from the Commonwealth are
appropriate.[77]
5.85
The Victorian government gives a similar view:
a significant retreat from the historical role played by the
Commonwealth. It is important that the Commonwealth continues to provide
funding assistance for the protection and management of Australia’s heritage
assets at levels, not simply those exhibiting national heritage values.[78]
5.86
The Committee has not received evidence relating
to the extent or outcomes of discussions between the Commonwealth and the
states in relation to these funding issues. Nevertheless, it is clearly a
matter critical to the creation of an effective heritage protection scheme. As
discussed in Chapter 2, the Committee believes that the Commonwealth should
commit to a role of national leadership, and this carries with it certain
funding responsibilities. For this reason, the Committee concludes that it is
undesirable that the legislation should limit funding to places on the
Commonwealth and National Heritage Lists, particularly given the Committee’s
recommendation that the Register of the National Estate be retained.
5.87
The Committee notes the suggestions of several
witnesses for ways in which funding can be directed to protect a large number
of listed properties. Dr Susan Marsden, National Conservation Manager,
Australian Council of National Trusts (in relation specifically to the RNE),
states:
There are a range of quite sophisticated ways in which you can
protect those 13,000 places without necessarily reducing them to a very small
list of national places. Firstly, you can do what, for example, English
Heritage does. Every year it puts out a register of buildings at risk,
compiled from its much greater register of buildings in the UK, and then
provides funding and advisory support to local authorities to help look after
those buildings.
Secondly, you could still keep the Register of the National
Estate but simply highlight each year a different range of places – not
necessarily a finite list each year – bring them up to scratch, develop
management regimes with the appropriate governments that might protect and
interpret those places, and then move on.[79]
5.88
Two other important funding issues are first,
the provision of funding for education – particularly in relation to the
requirements of the heritage regime – and second, for monitoring of compliance
with that regime. As the Humane Society International’s submission noted, ‘the
effective implementation of the new Commonwealth heritage regime will
ultimately depend on adequate enforcement of the regime’.[80] The Government must therefore
ensure that sufficient funds are directed towards these two needs.
Recommendation 5.13
The Committee recommends
that sections 324Y and 341ZA of the Environment and Heritage Legislation
Amendment Bill (No. 2) 2000 be amended to enable Commonwealth funding
assistance to any heritage place.
Recommendation 5.14
The Committee recommends
that the Commonwealth Government give priority to negotiations with the state
and territory governments that will clarify the role and extent of Commonwealth
Government funding in relation to overall heritage protection.
The potential for thematic listings
5.89
An aspect of the bills which has attracted some
enthusiastic responses is the provision for the creation of thematic listings
in the National Heritage List.[81] Dr Mosley comments that this concept has considerable history in
Australia, and the provision for thematic listings offers the opportunity to
utilise information collected over many years by government agencies.[82] He comments that:
... there is a possibility – and a great opportunity if you like –
for two kinds of cultural landscapes to be accepted as themes for the national
heritage list. One would be indigenous cultural landscape as a type, and the
other would be areas that are, if you like, the combined results of humans and
nature. There are wonderful examples of these on the fringes of nearly every
one of our big cities. For instance, in Perth we have the Darling Ranges.
Here around Melbourne we have the Mornington Peninsula, the Dandenong Ranges
and Mount Macedon. In Adelaide we have the Adelaide Hills. In Sydney we have
the Hawkesbury River country, and other areas. I could go on.[83]
5.90
Mr Bruce Leaver, of Environment Australia, also
notes:
the potential for national place assessment under a nominated
theme to be done in conjunction with state and local government, to provide a
package of sites under that theme which could then be marketed and managed as a
heritage product, particularly for regional development.[84]
5.91
The Committee believes that the development of
thematic listings should be given further consideration.
Navigation: Previous Page | Contents | Next Page