Chapter 6 - Enforcement of Heritage protection
Introduction
6.1
A key driver of reform in heritage legislation
is the need to provide more effective protection of heritage places. As was
discussed in earlier chapters, the listing of a property on private or commercially
owned land under the Register of the National Estate confers largely symbolic
protection. Under the proposed regime, this will be replaced with the stronger
enforcement provisions contained in the Environment Protection and
Biodiversity Conservation Act 1999.
6.2
Although submissions to the inquiry largely
support this stronger enforcement regime, a number of weaknesses were
identified. These relate principally to the definitions of particular words
and phrases, and the need to extend protection to encompass certain additional
categories of offence. These issues are explored in this chapter.
Definition of ‘action’
6.3
The definition of ‘action’ is very significant
to the operation of the enforcement provisions of the proposed heritage
protection regime. The sections of the Bill creating offences relating to
national heritage places[1]
and those of the EPBC Act requiring approval of proposals[2] are triggered by ‘actions’.
These are defined in the EPBC Act to include projects, developments,
undertakings or alterations, but exclude various types of decisions and
provisions of grant funding.[3]
6.4
This definition is considerably narrower than
the AHC Act definition it is designed to replace. Section 30(4) of the AHC Act
expressly includes government decisions; approval of programs; the issuing of
licences or permits; grants of financial assistance or the adoption of
recommendations.[4]
6.5
Submissions argue for the definition of ‘action’
to be broadened to include disposal actions and grants.
Disposal actions
6.6
In relation to the former, the Australian
Council of National Trusts argues:
Currently, the Commission is
alerted if disposal is planned but under the new Act this appears unlikely.
This will mean that Commonwealth agencies will not have to consult concerning
the disposal of property – which is happening apace across Australia – and so
heritage properties may pass out of Commonwealth control with no effective
heritage protection unless already state heritage-listed.[5]
6.7
The bills currently provide specific provisions
for the protection of any heritage listed properties subject to sale or
disposal.[6]
The effectiveness of these sections is discussed below.
6.8
These sections do not cover the disposal of
properties that are not listed, and cases where the heritage values of a place
have not been identified. While priority should be given to the identification
of these values as a precursor to proper management, the Committee realises
that this will not always happen, and hence a ‘safety net’ mechanism is needed
to ensure the long term protection of the heritage values of these properties.
Grants
6.9
In relation to the second matter, other groups
point to the importance of the definition continuing to include grants, in
order to achieve better heritage outcomes in two major types of grant programs:
Firstly, grants programs designed for heritage outcomes, such as
the Federation Fund, will be checked by a technically equipped organisation,
the Council and its staff, to ensure that all aspects of the grant are positive
and that the maximum benefits accrue to the heritage place, the community and
the grant recipient.
Secondly, grants programs that are not of a heritage nature will
be assessed by a heritage aware Council for any impacts that could affect the
heritage place. In so doing, the Commonwealth will be aware of any unintended
affects on heritage places that a grant program could have caused.[7]
6.10
This point was expanded upon by Dr Warren
Nicholls, Australian Conservation Foundation:
Experience with the Heritage Commission – where section 30(4) of
that Act does pick up grants as a Commonwealth action – shows that, with many
Commonwealth grants programs, there are often well intended proposals put by
applicants who seek to do the right thing but which, if funded, would result in
a negative effect on heritage. By the Heritage Commission, as an expert body,
having this opportunity of being able to review these programs and suggest
small changes to what is proposed, projects that could have had an adverse
effect on a heritage place have been changed around to have a very positive
effect. The outcome is very positive for the government. Its funding is going
to result in a positive effect for heritage, and there are no problems with
subsequently finding out that what was intended as a good grant ended up having
an adverse effect. The applicants are happy because they have had their
projects amended in a positive way and, of course, the important thing is that
the heritage benefits.[8]
6.11
The Committee agrees that Commonwealth grants
should be subject to assessment to ensure that they further heritage protection
and do not have counterproductive outcomes. However, the Committee is also
mindful that ‘action’ is defined in section 528 of the EPBC Act, and that an
amended definition would affect the operation of the whole of the Act, and not
only matters relating to heritage. Consideration of such a wider impact is
beyond the scope of the Committee’s current inquiry.
Recommendation 6.1
The Committee recommends
that the Government consider means to ensure that the range of actions
triggering assessment under the Australian Heritage Commission Act 1975
are also assessed under the proposed regime, especially with regard to the sale
of Commonwealth properties and to the assessment of grants.
Protection upon sale or lease
6.12
When heritage listed property is sold or leased
by the Commonwealth, there is a danger that its heritage values will no longer
be properly protected. This issue is of particular relevance in the context of
the wide ranging policy of disposals of Commonwealth properties around
Australia, teamed with a policy of sale and lease-back of significant amounts
of office accommodation. Accordingly, the bills provide[9] that
the Commonwealth must include a covenant to protect heritage values whenever it
executes a contract for the sale or lease of Commonwealth land involving
heritage, and must take reasonable steps to ensure that this covenant binds the
successors in title.
6.13
The Committee has heard evidence that covenants
are not the most effective means of providing protection to heritage
properties. The Australian Council of National Trusts state:
Disposal is a key issue of
concern as the only protection proposed in the Bill is covenants. This does
not represent best-practice. In the experience of National Trusts and state
heritage agencies, covenants do not provide long term protection of heritage
values and rarely remain effective past the first change in ownership. Far
more effective protection is provided by heritage listing (state or local listing)
before the property is disposed of.[10]
6.14
The Department acknowledged that there may be
weaknesses with the proposed system but considers that it remains the best
alternative:
If somebody can develop a better more workable system in
relation to protection of heritage through the sale of property, then we would
certainly be interested in it, but through the protracted consultation process
that appeared to be the simplest and most workable of the options that were
open.[11]
6.15
Submissions have offered several solutions to
these limitations. In the view of the Schofield Report, it is preferable to
avoid sale of Commonwealth properties with heritage values and use instead a
long term lease; or alternatively, in order of preference:
-
freehold sale to a State Body for conservation purposes;
- freehold sale to a Local Authority, private body with adequate
protection under State Heritage Laws;
- a covenant in perpetuity on freehold sale. [12]
6.16
Others recommend amendments to require a
conservation agreement under Part 14 of the EPBC Act to be entered into with
the new land-holder prior to the execution of the contract for the sale or
lease of that land;[13] or the use of permits and other mechanisms, such as heritage
agreements for monitoring and continuing to preserve heritage values after
disposal.[14]
6.17
The Environmental Defender’s Office recommend
that:
[Sections] 324X and 341Z should be amended to require that any
National or Commonwealth heritage place that is the subject of a sale or lease
by the Commonwealth be subject to adequate heritage listing under State
heritage legislation. Alternatively, the Commonwealth must take all reasonable
steps to ensure that the place is protected by a State heritage listing.[15]
6.18
The Committee notes that the identification of
the need for provision of better protection of Commonwealth heritage properties
after sale or disposal was one of the outcomes of the Schofield Report.[16] The Committee also recognises that over time, problems may emerge
with the effectiveness of the covenant system provided for in the bill. For
these reasons, there are obvious benefits in considering some of the other
options suggested by submissions such as leasing (thereby retaining a property
under Commonwealth laws); sale to a state or territory; or listing under state
or territory registers. However, the Committee also recognises that these
options may be inappropriate in some circumstances, and may impose unwarranted
restrictions on the operational flexibility of an agency.
Recommendation 6.2
The Committee recommends
that the Government consider additional administrative means to protect
Commonwealth Heritage List places upon sale or disposal, incorporating a range
of methods, including listing, to ensure the preservation of these properties.
Definition of ‘significant impact’
6.19
The meaning of ‘significant impact’ is also
critical to the enforcement and triggering provisions discussed above. As one
submission explains:
The Minister’s decision as to whether a proposed action will
have a ‘significant impact’ on a matter of NES, and therefore whether the
action requires approval under the EPBC Act, is one of the most important
decision-making points in the processes under the Act.[17]
6.20
Submissions have raised three central objections
to this arrangement: the source of the definition in Administrative Guidelines;
and the failure of the definition to encompass damage to heritage properties
caused by either cumulative impacts or neglect.
Administrative Guidelines
6.21
The first relates to the source of the
definition. What constitutes ‘significant’ for the purposes of the Act is to
be prescribed by the regulations,[18]
however, two submissions have pointed out that the definition is derived not
from regulations but rather Administrative Guidelines,[19] which they argue have no
statutory force; are easily changed; are not enforceable and thus provide no
certainty for stakeholders.[20]
There is the concern that:
As a result, the Minister has a very broad discretion as to
whether to subject a project to environmental assessment and approval under the
EPBC Act. Given the importance of this decision, we consider that the
definition of significant should be in Regulations, as provided for under
section 524B of the EPBC Act.[21]
6.22
The Committee has not received sufficient
evidence on the legal status and enforceability of administrative guidelines to
draw any clear conclusions. However, in general terms, it would appear that
the guidelines are not binding on the Minister, and accordingly provide the
Minister with considerable discretion to interpret and amend the concept of
‘significant impact’. While there are some advantages in this approach, the
Committee considers that the concept of ‘significant impact’ is sufficiently
central to the enforcement provisions of the regime to render it desirable that
the issue is clearly defined in regulations, as envisaged by the EPBC Act.
Again, this view is tempered by the observation that such a change may have
wider impacts on the operation of the EPBC Act that the Committee has not
considered in the context of this inquiry.
Recommendation 6.3
The Committee recommends
that the Government table the proposed definition of ‘significant impact’ in
relation to natural heritage places, before any further debate on the bills
takes place.
Recommendation 6.4
The Committee recommends
that the Government place the definition of ‘significant impact’ in regulations
created pursuant to the EPBC Act.
Cumulative impacts
6.23
The second issue relates to the threshold
requirement of ‘significant impact’, which may not properly take account of multiple,
small but cumulative or incremental actions that overall may have a major
impact on a heritage listed place:
Such impacts can be critical, especially when repeated on many
occasions, in many places in close proximity to each other. Examples would
include repeated actions to one or a series of adjacent buildings or a series
of developments along a stretch of coastline.[22]
6.24
The Australian Council of National Trusts
explains that heritage places unlike
natural places, are non-renewable, and the destruction of historical fabric, no
matter how minor, involves permanent loss:
a series of minor physical
changes will collectively and cumulatively lead eventually to the total loss of
heritage value, particularly in precincts comprising several places.[23]
6.25
An alternative is
to retain in the new regime, the terms used in the existing Act: ‘adversely affects’ and actions ‘that might affect to a
significant extent’, which it is argued are suited to heritage protection and
carry the added advantage of already possessing well established common law
interpretations.[24]
Accordingly, submissions advocate several other solutions, including the use of
section 341R management plans as a tool to control limited actions;[25] or the creation of:
a range of lesser offences not requiring
‘significant impact’ to encompass more ‘minor’ actions – for example, altering
or damaging a Commonwealth heritage place.[26]
6.26
These would be regulated through a permit system
modelled on Part 13 of the EPBC Act relating to actions impacting upon members
of threatened species.[27]
6.27
The Committee notes that under the existing
Administrative Guidelines, it is arguable that such minor or cumulative impacts
could amount to a significant impact. The Guidelines require consideration of
(among other things):
- all direct and indirect impacts;
- the frequency and duration of the action;
- the total impact which can be attributed to that action over the
entire geographic area affected, and over time;
- and invokes the precautionary principle.[28]
6.28
Although the guidelines relating specifically to
heritage protection are not yet available, examination of guidelines for other
matters of environmental significance, such as world heritage properties, also
suggest that cumulative impacts may be covered.
6.29
Nevertheless, the Committee concludes that the
concept of ‘significant impact’ caused by cumulative impacts should be
explicitly covered.
6.30
The Government may also wish to consider
developing a permit system for cumulative actions affecting Commonwealth
heritage. This could be similar to the existing system under Part 13 of the
EPBC Act for members of species in Commonwealth areas.
Recommendation 6.5
The Committee recommends
that in framing the definition of ‘significant impact’ for heritage places, in
the regulations, specific consideration should be given to including impacts
caused by cumulative actions.
Protection against
neglect
6.31
In a closely related issue, it is argued that
the provisions of the Bill do not offer protection against neglect of heritage
places, and therefore need to be extended to cover both positive and negative
acts in the protection regime. Associate Professor Paul Adam comments:
In the built environment it has been recognised that ‘demolition
by neglect’ is a major threat. There is a need to recognise that failure to manage
can have the same effect in the natural environment.[29]
6.32
It is therefore argued that the Bill should be
amended to impose minimum standards for the maintenance and repair of listed
places, similar to the requirements of section 118 of the Heritage Act 1977
(NSW).[30]
6.33
The Committee agrees with the importance of
preventing destruction through neglect. However, it is noted that adding the
proposed amendments to the definition of ‘significant impact’ would result in
attaching criminal penalties to the failure to properly maintain a heritage
place. The Committee is mindful that proper maintenance may imply considerable
expenditure for the owners of heritage places. For this reason, criminal
penalties may be appropriate for Commonwealth owned heritage places, but are
probably less so for private owners, and that the Commonwealth should address
the issue by means of management plans and associated grants programs.
6.34
In the Committee’s view, the size and scope of
the list (which has not yet been announced) will have some bearing on the
appropriateness of this action since criminal penalties may be appropriate for
the owners - whether public or private - of Australia’s icon sites, but less so
for other sites. As a general principle, however, attaching criminal penalties
for failing to properly maintain a heritage place would appear to be
appropriate for government owned properties but arguably less so for privately
owned sites, especially where considerable expenditure may be required to
maintain that site and where this places financial burden on the owner. In
these cases, it would be more appropriate for the Commonwealth to address the
issue by means of management plans and associated grants programs.
Recommendation 6.6
The Committee recommends
that for places on the Commonwealth Heritage List, the Government include in
the definition of ‘significant impact’ the neglect of the place.
Recommendation 6.7
The Committee recommends
that the Government specifically addresses the issue of the neglect of places
on the Register of the National Estate and National Heritage List through the
adoption of measures such as management plans and grants funding.
Definition of damage to heritage
6.35
There is also concern that the sections 15B and
15C of the Bill, which create the central penalty provisions, refer to actions
that have a significant impact on the ‘heritage values’ of a national heritage
place. Submissions have argued that this definition should be altered to cover
impacts on the place itself, rather than being limited to impact on national
heritage values:
protecting only the values of a national heritage place requires
a careful articulation of those values during the listing process. Any
oversight could subsequently result in damage to ‘unlisted’, but nevertheless
important, values.[31]
6.36
It is further argued that:
Whilst identification of the values of a heritage place can
assist in the management of that place, it is far too nebulous a concept to
provide adequate protection. One of the concerns is that all values are not always
known at the time of listing. Indeed, on this issue, the Senate has already
passed amendments to the EPBC Act that would focus on protection of world
heritage ‘properties, including associated values’. A similar approach is
needed for heritage protection.[32]
6.37
The Australian Conservation Foundation
submission further notes that this distinction is reflected in the later
section 341Y which requires a Commonwealth agency to ask the Minister for
advice before taking any action that could have a significant impact on a
Commonwealth heritage place.[33]
6.38
The Committee agrees with this suggestion and
considers that references to heritage values is unnecessarily restrictive.
Recommendation 6.8
The Committee recommends
that sections 15B and 15C of the Environment and Heritage Legislation Amendment
Bill (No. 2) 2000 be amended to prohibit any significant impacts on ‘a heritage
place or its heritage values’.
Retention of the prudent and feasible
alternative test
6.39
An important
provision for the protection of Commonwealth Heritage List places is the
requirement that before a Commonwealth agency takes an action that could have a
significant impact, it must ask the Minister for advice.[34] In contrast, the earlier section 30(1) of the
AHC Act:
requires each Minister responsible for a Commonwealth department
or authority to give directions to ensure that no action of the department
adversely affects the National Estate, unless satisfied that there is no
reasonable and prudent alternative to the taking of that action and that all
measures that can reasonably be taken to minimise the adverse affect will be
taken.[35]
6.40
According to several submissions, the proposed
new section 341Y is a poor substitute for the ‘prudent and reasonable
alternative’. The North Queensland
Conservation Council (NQCC) state:
It is now recognised in law in the United States that the
assessment of prudent and feasible alternatives in the impact assessment
process is the ‘heart’ of impact assessment. It is consider[ed] critical to
proper and impartial decision-making and to protection of those areas that are
held most valuable.[36]
6.41
NQCC explains that there are several key
requirements for a proper evaluation of alternatives. First, objectives must
be defined in a manner that does not constrain the consideration of
alternatives to a particular site or a particular manner of development. For
instance, ‘a safe harbour and canal estate in Nelly Bay’ effectively prevents a
proper analysis of prudent and feasible alternatives. Second, is a needs
analysis, which is not the same as ‘want’ but a reflection of demand, social
requirements, and the degree to which the proposal reflects a public good.[37]
6.42
A proper evaluation of alternatives assists in a
broader and more innovative assessment of possible ways to achieve a given
objective, and by inference must be conducted as early as possible in the
process. NQCC notes that under the US National Environmental Policy Act,[38] and its regulations, an Environmental Impact Statement must:
[r]igorously explore and objectively evaluate all reasonable
alternatives, and for alternatives which were eliminated from detailed study,
briefly discuss the reasons for their having been eliminated.[39]
6.43
The Environmental Defender’s Office take a
similar view and suggest the following amendment to section 341Y(2):
- A Commonwealth Agency should not take an action that is likely to
have a significant impact on a Commonwealth heritage place unless there is no
reasonable alternative;
- If there is no reasonable alternative the Commonwealth agency
must take all reasonable steps to minimise the adverse impact;
- The Commonwealth agency should provide details to the Australian
Heritage Council for its comment on the proposed action affecting a
Commonwealth heritage place.
- The Australian Heritage Council can request the Minister to hold
an inquiry into a matter relating to the Commonwealth estate.[40]
6.44
The Committee considers that there is
considerable benefit in formally incorporating the substance of the ‘reasonable
and prudent alternative’ test into the consideration of actions by Commonwealth
agencies in relation to Commonwealth Heritage List places. Under the proposed
system, the agency is under no obligation to formally consider alternatives,
which the Committee believes to be a key part of any proper analysis.
Recommendation 6.9
The Committee recommends
that the Government consider incorporating a formal analysis of options and
alternatives into section 341Y of the Environment and Heritage Legislation
Amendment Bill (No. 2) 2000.
Enforcement of the EPBC
Act
6.45
Concerns have also been raised over the general
effectiveness of the protection afforded by the EPBC Act. Evidence to the
inquiry[41] drew attention the low number of referrals to the Minister. For
example, eleven per cent of the total number of referrals to the Minister were
from the ACT, whilst only six per cent came from Western Australia,
notwithstanding the enormous differences in the size of the two areas. While
recognising that the EPBC Act has only recently come into force, such anomalies
may suggest problems which the Department should consider.
6.46
The Committee notes with interest the
inconsistencies in the number of referrals made to the Minister under the EPBC
Act. However, a detailed examination of this issue is beyond the scope of the
inquiry which must remain focused on the provisions of the bills before it.
Authority of the Commonwealth Minister
6.47
Although the previous chapter discussed concerns
over the breadth of the Commonwealth Environment and Heritage Minister’s
powers, several submissions also suggested that in two key respects, the
Minister’s powers should be expanded further.
6.48
The first of these relates to the status of
‘advice’ given by the Minister. Before taking actions that have or are likely
to have significant impacts,[42] or making, amending, revoking or replacing a management plan,[43] a Commonwealth agency must ask the Minister for advice. However,
the weight that must be given to this advice is unclear. In the case of the
former, the agency must ‘take account of’ the advice while in the latter, no
indication of the authority of the advice is given. This raises the obvious
possibility that Commonwealth agencies may largely ignore the advice given by
the Minister, rendering the protection afforded by the legislation potentially
useless. This has already been identified as a major weakness of the AHC Act.[44] Ms Sullivan argues that:
Firm measures are required if other Commonwealth departments and
ministers are to pay more than lip service to heritage conservation. The
Heritage Minister should have a final say in these matters, rather than simply
having his advice taken into account.[45]
6.49
The second matter relates to the issue of
referral of ‘actions’ to the Minister. Under the EPBC Act, proponents are
required to refer proposals to the Minister,[46] while
states or territories may choose to refer.[47] The
Minister may also ‘request’ but cannot compel a referral in the event that
proponents fail to do so.[48] It has been suggested that this limited ‘call in’ power needs to
be strengthened:
While the penalties for contravention of the EPBC Act do provide
some incentive to refer relevant actions, if a proponent chooses to ignore the
Minister’s request, there are very few options available to the Minister (or
the community) other than to commence expensive and time consuming legal
proceedings.[49]
6.50
The Environmental Defender’s Office argue that
the need to grant coercive powers to the Environment and Heritage Minister is
stronger in the now devolved property management environment:
Since 1989, the Commonwealth Government has devolved
responsibility for its property use from one central agency to several
agencies. These individual agencies have their own goals and targets,
prescribed policies and financial concerns, and it has been demonstrated that
heritage preservation has not been a consistent priority.
Regardless of the existence of an accredited management plan,
allowing Commonwealth Agencies to determine, unchecked, their own actions over
Commonwealth heritage properties will not lead to the effective or optimal
levels of heritage protection. Instead, the Minister should retain
responsibility for ensuring that any actions taken are consistent with the
goals of heritage protection.[50]
6.51
The Committee is
sympathetic to both these views, and considers that there is a case to
strengthen the powers of the Commonwealth Minister by allowing for the
provision of compulsory advice and stronger call-in powers. However, as has
been the case in several matters in this chapter, the amendments suggested
involve changes that would effect the operation of the EPBC Act in a range of
matters that have been beyond the scope of this inquiry. There is still,
however, a need to consider how these changes could be achieved.
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