Minority report by Government Senators
Introduction
1.1
The main Committee report addresses a broad
range of issues and arrives at some thirty-five separate recommendations. In
this minority report, the Liberal Senators do not intend to address all of
these recommendations, but rather to focus on several central issues. However,
in so doing, the Liberal Senators should not be taken to agree with the
remaining conclusions or recommendations of the main report.
Australian Heritage Council – Listing powers
1.2
Government Senators do not agree with the
recommendation at Chapter 3 that the AHC should have the power to autonomously
list places on the Commonwealth or National Heritage Lists. This power should
remain with the Minister as envisaged by the bills.
1.3
Government Senators agree with the concept that
there must be a separation between the assessment of heritage values and the
management of heritage places. However, it does not necessarily follow that
this requires the AHC to have a listing power. The model proposed by the bills
provides this separation of roles, in that the AHC is responsible for the
assessment of heritage values and in so doing, is precluded from taking into
account anything other than heritage issues. The Minister is then responsible
for the consideration of whether to enter a place on one of the two new lists,
and to administer subsequent management actions through approvals and
management plans.
1.4
Government Senators consider that the major
implications of listing and the often controversial subject matter, make the
listing decision an inherently political decision. It is therefore considered
appropriate that the decision maker should be an elected representative
answerable to the Parliament.
1.5
In addition, evidence to the inquiry showed that
no other regime in Australia
that provides for an independent body to make the listing decision in
circumstances where:
- the relevant legislation covers natural, cultural, historic and
indigenous heritage; and
- the listing attracts substantive protection of the kind offered
by the EPBC Act and the proposed heritage reforms.
1.6
We also note that this mechanism is based on the
process for listing nationally threatened species (a science-based approach),
which has worked well in practice.
Australian Heritage Council – composition and functions
1.7
Government Senators consider that there may be
grounds for amending Section 5 of the Australian Heritage Council Bill 1999 to
allow the AHC a more proactive role in terms of public education and promotion
of heritage conservation. However, the proposed membership and qualifications
of members of the Council are considered appropriate and should not be changed.
1.8
However, for the reasons stated above, the
Government does not believe that these changes should extend to allowing the
Council to nominate and assess a place on its own motion.
1.9
It should be also be emphasised that the bill
provides for the AHC to act under the direction of the Minister, by which
means, the agency is answerable to the Minister who is in turn accountable to
the Parliament. In this respect, Government Senators reject the implication
that to work to the direction of the Minister implies that the agency will be
prevented from carrying out its tasks effectively and professionally.
Future role of the Register of the National Estate
1.10
Chapter 4 of the report addressed the future of
the RNE. Government Senators do not agree with the need to maintain the RNE as
a statutory list in addition to the proposed National and Commonwealth Lists.
1.11
Firstly, the RNE will continue as a public
reference source and will be transferred in its entirety into the National
Heritage Places Inventory. None of the work put into developing the RNE will
be lost.
1.12
Secondly, the bills are premised on a particular
allocation of roles between the Commonwealth and the states and territories,
based on extensive negotiations leading to the COAG Agreement. For the
Commonwealth to maintain a list of heritage places not directly the
responsibility of the Commonwealth (as distinct from coordinating a combined
register like the NHPI) would defeat the purpose of the bills.
1.13
The Government Senators do not believe that all
Commonwealth places on the RNE should automatically go on the new Commonwealth
List (Recommendation 5.1). To do so would undermine the integrity of the
regime which is based on expert assessment before listing against rigorous
criteria (yet to be settled).
Transparency
1.14
The Government Senators endorse the comments of
the main report relating to the transparency of the process, and note that the
Government will seek public comment on the draft ‘heritage management
principles’ and criteria when they are finalised. In general, the bills
provide a very high level of transparency and accountability. The
opportunities for public participation and comment are greater than in any
comparable legislation, and certainly represent a significant advance over the Australian
Heritage Commission Act 1975.
Funding for heritage properties
1.15
Sections 324Y and 341ZA of the Environment and
Heritage Legislation Amendment Bill (No. 2) 2000 will not have the effect of
limiting Commonwealth funding to places on the National or Commonwealth list.
The provisions authorise expenditure of Commonwealth funds on Nation or
Commonwealth Heritage list places, but do not preclude other expenditure under
the Cultural Heritage Projects Program or the Natural Heritage Trust
administered by Environment Australia.
Definition of ‘action’
1.16
It is not agreed that either grants or disposal
of a property should be included within the definition of
‘action’(Recommendation 6.1). In relation to grants it is not necessary to
provide for funding as an ‘action’ to trigger the EPBC Act, since the project
being funded will itself trigger the EPBC Act if it affects a matter of
National Environmental Significance.
1.17
In relation to disposal, where the heritage
values of a property are known, the covenant provisions of sections 324X and
341Z provide the necessary protection as discussed below. It should also be
noted that the function of the word ‘action’ in the AHC Act triggers
consultation, in contrast to its function in the EPBC Act which is linked to
enforcement provisions.
Protection on sale or lease
1.18
Government Senators do not agree that there is a
need for additional administrative measures to protect properties on sale or
disposal (Recommendation 6.7). The bills provide a mechanism for attaching
covenants to properties with heritage significance, which is a major initiative
not in the existing Australian Heritage Commission Act 1975. This is
considered adequate protection.
Definition of significant impact
1.19
Government Senators note the discussion in
Chapter 6 relating to the definition of ‘significant impact’. The Government
will develop administrative guidelines dealing with the significant impact
test, and in doing so, will consider whether more effective administration of
the Act and greater certainty can be achieved by placing these guidelines in
regulations as recommended by the main report.
_______________________
John Tierney (Deputy Chair)
Senator for New South Wales
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