2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Arts and Heritage)

Part 1.1 Administrative Appeals Tribunal Act 1989 83

Part 1.2 Administrative Decisions (Judicial Review) Act 1989 83

Part 1.3 Community Title Act 2001 83

Part 1.4 Environment Protection Act 1997 84

Part 1.5 Land (Planning and Environment) Act 1991 84

Part 1.6 Land (Planning and Environment) (Bushfire Emergency) Regulations 2003 94

Part 1.7 Land (Planning and Environment) Regulations 1992 94

Part 1.8 Legislation Act 94

Part 1.9 Territory plan 95

Part 1.10 Roads and Public Places Act 1937 95

Part 1.11 Utilities Act 2000 95

2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Arts and Heritage)

An Act to provide for the recognition, registration and conservation of places and objects of natural and cultural significance, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Heritage Act 2004.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

(1) The main objects of this Act are as follows:

(a) to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects;

(b) to establish the heritage council;

(c) to provide for heritage agreements to encourage the conservation of heritage places and objects;

(d) to establish enforcement and offence provisions to provide greater protection for heritage places and objects;

(e) to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.

(2) Unless there is no prudent and feasible alternative, functions under this Act must be exercised—

(a) to preserve the heritage significance of places and objects; and

(b) to achieve the greatest sustainable benefit to the community from those places and objects consistent with the conservation of their heritage significance.

(1) The council must not register an individual tree under this Act.

(2) Subsection (1) does not prevent the registration of a place at which a tree or trees form part of the heritage significance of the place.

Note The Tree Protection Act 2004 includes provision for the protection of trees of heritage significance. In relation to such trees, it provides for the heritage council to be notified about approved activities, tree management plans and provisional registration under that Act. It also provides for the heritage council’s advice to be taken into account in deciding whether to register a tree of heritage significance under that Act.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘Aboriginal place—see section 9.’ means that the term ‘Aboriginal place’ is defined in that section.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

(1) In this Act:

place includes the following:

(a) a site, precinct or parcel of land;

(b) an item at the place;

(c) a building or structure, or part of a building or structure, at the place;

(d) an object at the place that could be registered separately;

(e) an item historically or physically associated with the place, if the primary importance of the item derives, completely or partly, from that association;

(f) equipment, furniture, fittings and articles at, or historically or physically associated with, the place.

1 landforms

2 plantings

3 animal habitats

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) An object means a natural or manufactured object, including an Aboriginal object, but does not include a place.

Note An individual tree may not be registered under this Act (see s 4).

In this Act:

Aboriginal place means a place of particular significance to Aboriginal people because of either or both of the following:

(a) Aboriginal tradition;

(b) the history, including contemporary history, of Aboriginal people.

Aboriginal object means an object of particular significance to Aboriginal people because of either or both of the following:

(a) Aboriginal tradition;

(b) the history, including contemporary history, of Aboriginal people.

A place or object has heritage significance if it satisfies 1 or more of the following criteria (the heritage significance criteria):

(a) it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;

(b) it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;

(c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;

(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;

(e) it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;

(f) it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;

(g) it has strong or special associations with a person, group, event, development or cultural phase in local or national history;

(h) it is significant for understanding the evolution of natural landscapes, including significant geological features, landforms, biota or natural processes;

(i) it has provided, or is likely to provide, information that will contribute significantly to a wider understanding of the natural or cultural history of the ACT because of its use or potential use as a research site or object, teaching site or object, type locality or benchmark site;

(j) for a place—it exhibits unusual richness, diversity or significant transitions of flora, fauna or natural landscapes and their elements;

(k) for a place—it is a significant ecological community, habitat or locality for any of the following:

(i) the life cycle of native species;

(ii) rare, threatened or uncommon species;

(iii) species at the limits of their natural range;

(iv) distinct occurrences of species.

A place or object is registered if it is—

(a) provisionally registered under division 6.1; or

(b) registered under division 6.2.

The registration details for a registered place or object are as follows:

(a) its name;

(b) its location or address;

(c) a description of it, including (if relevant) its extent or boundary;

(d) a statement about its heritage significance, including the reasons for the registration and an assessment of the place or object against the heritage significance criteria;

(e) whether it is registered or provisionally registered;

(f) the date it was registered or provisionally registered;

(g) if it is provisionally registered—the period of provisional registration.

Note The registration details for a place or object may be cancelled under s 46 (Cancellation of registration of place or object).

Each of the following is an interested person:

(a) the planning and land authority;

(b) the conservator of flora and fauna;

(c) the national capital authority;

(d) for a place—

(i) an owner;

(ii) an occupier;

(iii) a lessee or sublessee;

(iv) an architect or designer of a building or structure at the place;

(e) for an object—

(i) an owner;

(ii) a person in possession of the object;

(iii) a maker;

(f) for an Aboriginal place or object—a representative Aboriginal organisation.

(1) In this Act:

representative Aboriginal organisation means an organisation declared under subsection (2).

(2) The Minister may, in writing, declare an entity to be a representative Aboriginal organisation for this Act.

(3) However, the Minister may make the declaration only if satisfied, on reasonable grounds, the entity satisfies the criteria (if any) declared under subsection (5).

(4) A declaration under subsection (2) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(5) The Minister may, in writing, declare criteria for deciding whether an entity should be declared to be a representative Aboriginal organisation.

(6) A declaration under subsection (5) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

A conservation management plan is a plan to ensure that—

(a) the conservation and future use of a heritage place or object are consistent with its heritage significance; and

(b) any threat, or potential threat, to the heritage significance of the place or object is identified and managed in accordance with the plan.

The Australian Capital Territory Heritage Council is established.

(1) The members of the council are as follows:

(a) the conservator of flora and fauna;

(b) the chief planning executive;

(c) 3 people appointed by the Minister as public representatives (see subsection (3));

(d) 6 people appointed by the Minister as experts (see subsection (4)).

(2) The Minister must appoint a chairperson and deputy chairperson of the council from the members appointed under subsection (1) (c) and (d).

(3) There must be at least 1 public representative for each of the following groups who, in the Minister’s opinion, adequately represents the group:

(a) the community;

(b) the Aboriginal community;

(c) the property ownership, management and development sector.

(4) Each expert must, in the Minister’s opinion, adequately represent 1 or more of the following disciplines:

(a) Aboriginal culture;

(b) archaeology;

(c) architecture;

(d) engineering;

(e) history;

(f) landscape architecture;

(g) nature conservation;

(h) object conservation;

(i) town planning;

(j) urban design.

(5) A person may be appointed under subsection (1) (c) or (d) for no longer than 3 years.

Note 1 For the making of appointments (including acting appointments), see Legislation Act 2001, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act 2001, div 19.3.3).

The council has the following functions:

(a) to identify, assess, conserve and promote places and objects in the ACT with natural and cultural heritage significance;

(b) to encourage the registration of heritage places and objects;

(c) to work within the land planning and development system to achieve appropriate conservation of the ACT’s natural and cultural heritage places and objects, including Aboriginal places and objects;

(d) to advise the Minister about issues affecting the management and promotion of heritage;

(e) to encourage and assist in appropriate management of heritage places and objects;

(f) to encourage public interest in, and understanding of, issues relevant to the conservation of heritage places and objects;

(g) to encourage and provide public education about heritage places and objects;

(h) to assist in the promotion of tourism in relation to heritage places and objects;

(i) to keep adequate records, and encourage others to keep adequate records, in relation to heritage places and objects;

(j) any other function given to it under this Act or another Territory law.

1 making recommendations and submissions to the planning and land authority about draft variations to the Territory plan (see Land Act, s 17)

2 providing advice to the planning and land authority about development applications (see Land Act, s 231)

3 providing advice to the conservator of flora and fauna about trees of heritage significance (see Tree Protection Act 2004)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The regulations may prescribe the procedures of the council, including its decision-making procedures.

(2) However, the conservator of flora and fauna and the chief planning executive are not eligible to vote on questions being decided by the council.

1 the number of members required to be at meetings of the council

2 what happens when votes are tied at meetings of the council

3 who is to preside at meetings of the council

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The council must keep a register of heritage places and heritage objects (the heritage register).

(2) The heritage register must include the registration details for each registered place or object.

(3) For each place or object nominated for provisional registration, the heritage register must include the following:

(a) the nomination details;

(b) the date the nomination was given to the council; and

(c) if an application for an urgent decision on the nomination has been made under section 28—

(i) a statement to that effect; and

(ii) the date the application was given to the council.

(4) In addition, the heritage register must include the following:

(a) each heritage guideline;

(b) each heritage direction;

(c) each enforcement order.

(5) The heritage register may also include any other material the council considers appropriate.

(1) The council may—

(a) in writing, approve an internet site for this Act; and

(b) publish a copy of the register (other than restricted information) on the internet site.

(2) An instrument under subsection (1) (a) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(3) A person may inspect the heritage register during ordinary office hours at a place named under subsection (4).

(4) The council must, in writing, name a place where the register may be inspected.

(5) An instrument under subsection (4) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(6) On application, the council must give a person a copy of all, or any part, of the heritage register.

Note 1 If a form is approved under s 116 for this provision, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

(1) This section applies if the registration details for a place or object include restricted information.

(2) The council must include a statement in the register about the effect of subsections (3) and (4).

(3) The restricted information must not be disclosed under section 21, except in accordance with subsection (4).

(4) The restricted information may be made available for inspection or copying only if approved under section 54 (Approval to publish restricted information).

(1) Proof is not required about a matter mentioned in section 20 (2) to (4) if the matter is published on the internet site approved under section 21.

(2) A court or tribunal may inform itself about the matter by examining the approved internet site.

Note Section 21 provides for the council to approve an internet site by a notifiable instrument under the Legislation Act.

The council may correct a mistake or omission in the heritage register subject to the requirements (if any) of the regulations.

(1) The council may, in writing, make guidelines (heritage guidelines) in relation to the conservation of the heritage significance of places or objects.

1 demolition of registered structures

2 alterations and additions to registered buildings

3 residential heritage precincts

4 rural heritage places

5 new buildings in heritage precincts

6 Aboriginal heritage places and objects

7 working with heritage places

8 developing heritage places

9 when, and when not, to undertake a development affecting the heritage significance of a place without development approval under the Land Act, part 6

Note 1 The power to make a statutory instrument (including guidelines) includes power to amend or repeal the instrument (see Legislation Act, s 46)

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Guidelines are a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) Unless there is no prudent and feasible alternative, functions under this Act that relate, directly or indirectly, to the conservation of a place or object must be exercised in accordance with any applicable heritage guidelines.

(2) Subsection (1) applies, in particular, to the following functions:

(a) the giving of advice to the planning and land authority under section 58 (Advice about effect of development on heritage significance), particularly in relation to ways of avoiding or minimising the effect of a development on the heritage significance of a place or object;

(b) the giving of a heritage direction;

(c) the making of a heritage order;

(d) the making of a heritage agreement.

(1) Anyone may nominate a place or object for provisional registration.

(2) The nomination must be in writing and must be given to the council.

Note 1 If a form is approved under s 116 for a nomination, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

Note 3 Section 114 deals with giving documents to the council.

(3) The application must include the following details (the nomination details) of the place or object:

(a) its name;

(b) its location or address;

(c) the nominator’s statement about the heritage significance of the place or object.

(1) Anyone may apply for an urgent decision on a nomination.

(2) The application must be in writing and must be given to the council.

Note 1 If a form is approved under s 116 for an application under this section, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

Note 3 Section 114 deals with giving documents to the council.

1 A member of the Legislative Assembly applies for urgent assessment of heritage significance to protect a place or object under imminent threat.

2 A developer applies for urgent assessment of heritage significance to avoid delay in a development project.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132)

(3) The council must use its best endeavours to decide, within 20 working days after the day it receives the application, whether or not to provisionally register the place or object nominated.

(1) This section applies if a nomination is made to provisionally register an Aboriginal place or object.

(2) Before deciding whether to provisional register the place or object, the council must consult, and consider the views of, each representative Aboriginal organisation about the nomination.

(1) The council must decide whether to provisionally register each place or object nominated for provisional registration.

(2) The council may provisionally register a place or object only if satisfied, on reasonable grounds, that the place or object may have heritage significance.

To provisionally register a place or object, the council must enter in the register—

(a) the registration details for the place or object; and

(b) an indication that the registration is provisional.

(1) The council must prepare a written notice of its decision about the provisional registration of a place or object.

(2) The notice—

(a) is a notifiable instrument; and

(b) must be notified under the Legislation Act within 3 working days after the day the decision is made; and

(c) must be published in a daily newspaper as soon as practicable.

(3) The council must use its best endeavours to give a copy of the notice to each interested person within 10 working days after the day the decision is made.

Note Section 13 defines interested person.

(4) If the decision is to provisionally register the place or object, the notice must include the following:

(a) the registration details of the place or object;

(b) the council’s reasons for its decision;

(c) the date of provisional registration;

(d) an indication of the council’s intention to decide whether to register the place or object under division 6.2.

(5) The notice must not include restricted information.

(1) The provisional registration of a place or object is for—

(a) 5 months beginning on the day the place or object is provisionally registered; or

(b) if section 34 applies—the extended period under that section.

(2) However, the provisional registration ends if the place or object is registered under division 6.2.

(1) This section applies if the council asks the Minister in writing to extend the period of the provisional registration of a place or object.

(2) While the place or object is provisionally registered, the Minister may, in writing, extend the period of provisional registration.

(3) The Minister may extend the period of provisional registration only if satisfied, on reasonable grounds, that the existing period of registration (including any extension under this subsection) may end before—

(a) any consultation and consideration required under section 29 (Consultation with representative Aboriginal organisations about nomination) ends; or

(b) an appeal against a decision by the council not to provisionally register the place or object has been finally decided.

(4) An extension must end within 8 months after the day the place or object was provisionally registered.

(5) An extension under subsection (2) is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) A notice under section 32 (Notice of decision about provisional registration) must include an invitation to make comments about the registration of the place or object to the council within 4 weeks after the day the notice is notified under the Legislation Act (the public consultation period).

Note Section 114 deals with giving documents to the council.

(2) In deciding whether to register a place or object under this division, the council must consider any comments made to the council about the registration before the end of the public consultation period.

As soon as practicable after the end of the public consultation period in relation to the registration of a place or object, the council must give the Minister a written report that—

(a) identifies the place or object; and

(b) gives the council’s view about whether the place or object should be registered under this division; and

(c) identifies issues raised in comments made to the council before the end of the public consultation period; and

(d) includes a copy of the written comments (if any); and

(e) identifies any other change the council proposes to make to the registration having regard to the issues raised in the comments.

(1) The Minister may direct the council to give further consideration to issues raised in, or arising from, its report to the Minister under section 36.

(2) The Minister must give the direction to the council in writing within 15 working days after the day the report is given to the Minister.

(1) If a place or object is provisionally registered, the council must decide whether to register it under this division.

(2) The council may register the place or object only—

(a) after complying with any direction by the Minister under section 37; and

(b) if satisfied, on reasonable grounds, that it has heritage significance.

(1) To register a place or object under this division, the council must—

(a) enter the registration details for the place or object in the register; and

(b) remove the indication that registration is provisional.

(2) The council may register a place or object only if—

(a) the appeal period has ended and no appeal has been made; or

(b) any appeal has been finally decided and is unsuccessful.

(1) The council must prepare a written notice of its decision about the registration of a place or object under this division.

(2) The notice—

(a) is a notifiable instrument; and

(b) must be notified under the Legislation Act within 3 working days after the day the decision is made; and

(c) must be published in a daily newspaper as soon as practicable.

(3) The council must use its best endeavours to give a copy of the notice to each interested person within 10 working days after the day the decision is made.

Note Section 13 defines interested person.

(4) If the decision is to register the place or object under this division, the notice must include the following:

(a) the registration details of the place or object;

(b) the council’s reasons for the registration;

(c) the date of registration.

(5) The notice must not include restricted information.

(1) Anyone may propose the cancellation of the registration under division 6.2 of a place or object .

(2) The proposal (a cancellation proposal) must be in writing and must be given to the council.

Note 1 If a form is approved under s 116 for this provision, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

Note 3 Section 114 deals with giving documents to the council.

(3) The council may refuse to consider a proposal if satisfied, on reasonable grounds, the proposal is frivolous or vexatious.

(1) The council must prepare a written notice of each cancellation proposal.

(2) The notice—

(a) is a notifiable instrument; and

(b) must be notified under the Legislation Act within 3 working days after the day the proposal is given to the council; and

(c) must be published in a daily newspaper as soon as practicable.

(3) The council must use its best endeavours to give a copy of the notice to each interested person within 10 working days after the day the proposal is given to the council.

Note Section 13 defines interested person.

(4) A notice under this section must include the following:

(a) the registration details of the place or object;

(b) the proponent’s reasons for the cancellation proposal;

(c) the date the proposal was given to the council.

(5) The notice must not include restricted information.

(1) This section applies if a cancellation proposal is made in relation to an Aboriginal place or object.

(2) In deciding whether to cancel the registration of the place or object, the council must consult, and consider the views of, each representative Aboriginal organisation about the proposal.

(1) A notice under section 42 (Notice of cancellation proposal) in relation to the registration of a place or object must include an invitation to make comments about the proposal to the council within 4 weeks after the day the notice is notified under the Legislation Act (the public consultation period).

Note Section 114 deals with giving documents to the council.

(2) In deciding whether to cancel the registration of the place or object, the council must consider any comments made to the council about the proposed cancellation before the end of the public consultation period.

(1) If the council receives a cancellation proposal about a place or object, it must decide whether to cancel the registration of the place or object in accordance with the proposal.

(2) The council may cancel the registration only if satisfied, on reasonable grounds, that the place or object no longer has heritage significance.

(1) To cancel the registration of a place or object, the council must—

(a) cancel the registration details for the place or object; and

(b) enter in the register—

(i) the date of cancellation; and

(ii) an indication that the details have been cancelled.

(2) The council may cancel the registration of a place or object only if—

(a) the appeal period has ended and no appeal has been made; or

(b) any appeal has been finally decided and is unsuccessful.

(1) The council must prepare a written notice of the cancellation of the registration of a place or object.

(2) The notice—

(a) is a notifiable instrument; and

(b) must be notified under the Legislation Act within 3 working days after the day the decision is made; and

(c) must be published in a daily newspaper as soon as practicable.

(3) The council must use its best endeavours to give a copy of the notice to each interested person within 10 working days after the day the decision is made.

Note Section 13 defines interested person.

(4) The notice must include the following:

(a) details of the cancellation;

(b) the council’s reasons for the cancellation;

(c) the date of cancellation.

(5) The notice must not include restricted information.

(1) In this part:

cancellation includes partial cancellation.

partial cancellation means the exclusion of part of a registered place.

(2) This part applies to a partial cancellation as if—

(a) a reference to a registered place were a reference to the part of the place to be excluded; and

(b) all other necessary changes, including any changes prescribed under the regulations, were made.

(1) A person commits an offence if the person—

(a) discovers an Aboriginal place or object; and

(b) has reasonable grounds to believe it is an Aboriginal place or object; and

(c) fails to take reasonable steps to report the discovery to the council, in accordance with subsection (2), within 5 working days after the day of the discovery.

Maximum penalty: 5 penalty units.

(2) The report must be in writing and must include the following:

(a) a description of the place or object and its location;

(b) the person’s name and address;

(c) if known by the person—the name and address of the owner or occupier of the place where the discovery was made.

(3) An offence against this section is a strict liability offence.

(1) Section 49 does not apply—

(a) to a registered place or object; or

(b) if the person cannot report the discovery to the council, in accordance with section 49 (2), within 5 working days after the day of the discovery but does so within 10 working days after the day of the discovery.

(2) Also, section 49 does not apply to a person who has a traditional Aboriginal affiliation with the land where the place or object was discovered.

(1) The council may, in writing, declare particular information about the location or nature of a place or object to be restricted information.

(2) The council may make the declaration only if satisfied, on reasonable grounds, that public disclosure of the information would be likely to have a substantial adverse effect on the heritage significance of the place or object.

(3) The council must use its best endeavours to give a copy of the declaration to each interested person for the place or object.

Note Section 13 defines interested person.

(1) Information about the location or nature of an Aboriginal place or object is restricted information unless the council declares in writing that it is not.

(2) Before making a declaration under subsection (1), the council must consult, and consider the views of, each representative Aboriginal organisation about the information.

(3) The council must use its best endeavours to give a copy of the declaration to each interested person for the place or object.

Note Section 13 defines interested person.

(1) A person commits an offence if the person—

(a) publishes restricted information about a place or object; and

(b) knows the information is restricted information.

Maximum penalty: 50 penalty units.

(2) Subsection (1) does not apply if the publication is—

(a) in accordance with an approval under section 54; or

(b) for the exercise of a function under this Act or another Territory law; or

(c) by an Aboriginal person to another Aboriginal person and is about an Aboriginal place or object.

(1) The council may approve the publication of restricted information about a place or object if satisfied, on reasonable grounds, that the publication will not have a substantial adverse effect on the heritage significance of the place or object.

(2) An approval—

(a) may be given only on application; and

(b) must be given in writing to the applicant.

(3) An application must be in writing and must—

(a) identify the restricted information proposed to be published; and

(b) state the reason for the publication; and

(c) state the nature of the publication, including the person, people or kind of people to whom it would be directed.

Note 1 If a form is approved under s 116 for an application, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

(1) This section applies if—

(a) land is offered for sale; and

(b) an interested person for the land, or someone considering buying an interest in the land, applies to the council for access to restricted information relevant to the conservation and use of the land.

Note 1 If a form is approved under s 116 for an application, the form must be used.

Note 2 A fee may be determined under s 117 for this provision.

Note 3 Section 13 defines interested person.

(2) The council must give the applicant the restricted information sought, together with a written explanation about the operation of this part.

In this part:

development means a proposed development to which an application under the Land Act, part 6 (Approvals and orders) applies.

The following notes provide a simplified outline of this part and the Land Act, part 6:

Note 1 The planning and land authority must give the council a copy of each development application that relates to a place or object registered, or nominated for provisional registration, under this Act (see Land Act, s 229).

Note 2 The council provides advice to the planning and land authority about the effect of a development on the heritage significance of a place or object (see s 58).

Note 3 The council’s advice must be considered by the planning and land authority in approving or refusing to approve a development application (see Land Act, s 231).

Note 4 The heritage council may apply to the AAT for review of the planning and land authority’s decision to approve or refuse to approve a development application (see Land Act, s 275).

(1) This section applies if the council is satisfied, on reasonable grounds, that a development would affect the heritage significance of—

(a) a registered place or object; or

(b) a place or object nominated for provisional registration.

(2) The council may give the planning and land authority written advice in accordance with section 59 about its decision.

(3) However, if the planning and land authority gives the council notice of a development application under the Land Act, section 229, the council must, as soon as practicable but within 15 working days after the day it is given the notice—

(a) consider the application; and

(b) give the authority written advice in accordance with section 59.

Note The council may apply to the administrative appeals tribunal for review of a decision by the planning and land authority on the application (see Land Act, s 275).

(1) The council’s advice under section 58 about the effect of a development on the heritage significance of a place or object must include the following:

(a) an outline of the effect of the development on the heritage significance of the place or object;

(b) advice about ways of avoiding or minimising the impact of the development on the heritage significance of the place or object.

(2) Without limiting subsection (1), the advice may set out proposed conditions on any approval of the development, including conditions requiring compliance with all or any of the following:

(a) prudent and feasible measures to conserve the heritage significance of the place or object;

(b) conservation requirements under applicable heritage guidelines;

(c) a conservation management plan approved by the council.

(1) The Minister may give the owner or occupier of a place or object a written direction (a heritage direction) to do or not do something to conserve the heritage significance of the place or object.

1 to do essential maintenance on a place

2 not to adversely affect a significant feature of a heritage place

3 not to undertake a development affecting the heritage significance of a place without development approval under the Land Act, part 6

Note 1 The power to make a statutory instrument (including a heritage direction) includes power to amend or repeal the instrument (see Legislation Act, s 46)

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The heritage direction may be given only if—

(a) the council—

(i) is satisfied, on reasonable grounds, the direction is in accordance with any applicable heritage guideline; and

(ii) recommends the direction; and

(b) the Minister is satisfied, on reasonable grounds, that—

(i) there is a serious and imminent threat to the heritage significance of the place or object; and

(ii) immediate protection is necessary.

(3) The direction must state the period for which it is in force.

(4) To remove any doubt, a direction may be given in relation to a place or object whether or not it is registered.

A heritage direction may be given to the owner or occupier of a place by leaving it secured in a conspicuous position at the place.

Note For how directions may be served generally, see Legislation Act, pt 19.5.

(1) On application by the Minister, the Supreme Court may extend the period for which a heritage direction is in force in relation to a place or object if satisfied that—

(a) there is a serious and imminent threat to the heritage significance of the place or object; and

(b) extended protection is necessary.

(2) An extension must be for no longer than the Supreme Court considers necessary.

A person commits an offence if the person intentionally contravenes a requirement of a heritage direction.

Maximum penalty: 1 000 penalty units.

(1) This section applies if—

(a) a person does not comply with a heritage direction requiring the person to do something; and

(b) either—

(i) the appeal period has ended and no appeal has been made; or

(ii) any appeal has been finally decided and is unsuccessful.

(2) An authorised person may enter the premises where the place or object to which the direction applies is located and—

(a) do the thing stated in the direction; or

(b) do or finish any work stated in the direction.

(3) The reasonable cost incurred by the Territory in doing anything under subsection (2) is a debt owing to the Territory by the person to whom the direction was given.

(4) The Minister must endeavour to give each interested person for the place or object written notice of the action proposed under subsection (2) at least 5 working days before the day the action is to begin.

(5) The notice must include the following:

(a) a statement about the operation of this section;

(b) the purpose and nature of the proposed action;

(c) the parts of the place likely to be affected;

(d) the time or times when the action is proposed to be taken;

(e) a statement about the obligations of the authorised person and the Territory under subsection (7).

(6) A person may waive the right to all or part of the minimum period of notice under subsection (4).

(7) Section 95 (Damage etc to be minimised) and section 96 (Compensation for exercise of enforcement powers) apply to any action taken under subsection (2) as if—

(a) it were the exercise of a function under part 14 (Enforcement) by an authorised person or a person assisting an authorised person; and

(b) as if all other changes, including changes prescribed under the regulations, were made.

(1) This section applies if—

(a) an authorised person is entitled to exercise a function under section 64 (2); and

(b) another person obstructs, or proposes to obstruct, the authorised person in the exercise of the function.

(2) The Magistrates Court may, on the application of the authorised person, make an order authorising a police officer or other person named in the order to use necessary assistance and force to enable the function to be exercised.

(3) A copy of an application under subsection (1) must be given to the obstructor, and the obstructor is entitled to appear and be heard on the hearing of the application.

(1) An application for a heritage order may be made to the Supreme Court by—

(a) the council on behalf of the Territory; or

(b) someone else with the court’s leave.

(2) The Supreme Court may grant leave under subsection (1) (b) only if satisfied that—

(a) the person has asked the council to apply for a heritage order and the council has failed to do so within a reasonable time; and

(b) it is in the public interest that the proceeding be brought.

(1) This section applies if, on an application under section 66, the Supreme Court is satisfied that—

(a) the respondent has contravened, is contravening or is likely to contravene a defined offence provision; and

(b) an order under this section is necessary to avoid material harm to the heritage significance of a place or object.

(2) The Supreme Court may make an order (a heritage order)—

(a) restraining the respondent from contravening the defined offence provision (including an order requiring the respondent to do something); and

(b) about anything else the court considers appropriate for giving effect to the order.

(3) In this section:

defined offence provision means any of the following:

(a) section 53 (Restricted information not to be published without approval);

(b) section 63 (Contravention of heritage direction—offence);

(c) section 72 (Diminishing heritage significance of place or object);

(d) section 73 (Damaging Aboriginal place or object);

(e) section 94 (Contravention of information discovery order).

The Supreme Court may make an interim heritage order under section 67 before deciding an application for a heritage order.

In deciding the amount of any costs to be awarded against a party to a proceeding under section 67, the Supreme Court must consider the public interest in the proceeding being brought.

The Supreme Court may order an applicant for a heritage order to give—

(a) security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; or

(b) an undertaking about the payment of any amount that may be awarded against the applicant under section 71.

(1) This section applies if, on an application for a heritage order claiming a contravention of a defined offence provision, the Supreme Court is satisfied that—

(a) there has not been a contravention of the provision by the respondent; and

(b) the respondent has suffered loss or damage because of the making of the application; and

(c) in the circumstances it is appropriate to make an order under this section.

(2) The court may, on the application of the respondent, and in addition to any order about costs, order the applicant to pay the respondent an amount, decided by the court, to compensate the respondent for the loss or damage suffered by the respondent.

(3) In this section:

defined offence provision—see section 67 (3).

(1) A person commits an offence if the person—

(a) engages in conduct that diminishes the heritage significance of a place or object; and

(b) is reckless about whether the conduct would diminish the heritage significance of the place or object.

Maximum penalty: 1 000 penalty units.

(2) A person commits an offence if the person—

(a) engages in conduct that diminishes the heritage significance of a place or object; and

(b) is negligent about whether the conduct would diminish the heritage significance of the place or object.

Maximum penalty: 500 penalty units.

(3) A person commits an offence if the person engages in conduct that diminishes the heritage significance of a place or object.

Maximum penalty: 100 penalty units.

(4) A offence against subsection (3) is a strict liability offence.

(1) A person commits an offence if the person—

(a) engages in conduct that causes damage to an Aboriginal place or object; and

(b) is reckless about whether the conduct would cause damage to the Aboriginal place or object.

Maximum penalty: 1 000 penalty units.

(2) A person commits an offence if the person—

(a) engages in conduct that causes damage to an Aboriginal place or object; and

(b) is negligent about whether the conduct would cause damage to the Aboriginal place or object.

Maximum penalty: 500 penalty units.

(3) A person commits an offence if the person engages in conduct that causes damage to an Aboriginal place or object.

Maximum penalty: 100 penalty units.

(4) A offence against subsection (3) is a strict liability offence.

(5) In this section:

cause damage includes disturb and destroy.

(1) In this section:

governmental officer means—

(a) a public servant or any other conservation officer; or

(b) a person declared under subsection (3) to be a governmental officer.

(2) Section 72 and section 73 do not apply to—

(a) engaging in conduct in accordance with any of the following:

(i) a heritage guideline;

(ii) a heritage direction;

(iii) a heritage agreement;

(iv) a conservation management plan approved by the council;

(v) an approval for a development under the Land Act, part 6; or

(b) a governmental officer.

(3) The Minister may, in writing, declare a person to be a governmental officer.

(4) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

In this part:

connected—a thing is connected with an offence if—

(a) the offence has been committed in relation to it; or

(b) it will provide evidence of the commission of the offence; or

(c) it was used, is being used, or is intended to be used, to commit the offence.

occupier, of premises, includes—

(a) a person believed, on reasonable grounds, to be an occupier of the premises; and

(b) a person apparently in charge of the premises.

Note The dictionary defines premises as including land.

offence includes an offence that there are reasonable grounds for believing has been, is being, or will be, committed.

The chief executive may appoint a person to be an authorised person for this Act.

Note 1 For the making of appointments (including acting appointments), see Legislation Act, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

(1) The chief executive must give each authorised person an identity card that states the person’s name and appointment as an authorised person, and shows—

(a) a recent photograph of the person; and

(b) the date of issue of the card; and

(c) the date of expiry of the card; and

(d) anything else prescribed under the regulations.

(2) A person commits an offence if—

(a) the person ceases to be an authorised person; and

(b) the person does not return the person’s identity card to the chief executive as soon as practicable (but within 7 days) after the day the person ceases to be an authorised person.

Maximum penalty: 1 penalty unit.

(3) An offence against this section is a strict liability offence.

(1) For this Act, an authorised person may—

(a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether on not on payment of money); or

(b) at any reasonable time, enter premises to—

(i) inspect a place or object that is registered, or nominated for provisional registration; or

(ii) give a heritage direction to the owner or occupier; or

(c) at any time, enter premises with the occupier’s consent; or

(d) at any time, enter premises if the authorised person believes, on reasonable grounds, that the circumstances are so serious and urgent that immediate entry to the premises without the authority of a search warrant is necessary; or

(e) enter premises in accordance with a search warrant.

(2) However, subsections (1) (a) and (1) (b) do not authorise entry into a part of premises that is being used only for residential purposes.

(3) An authorised person may, without the consent of the occupier of premises, enter land around the premises to ask for consent to enter the premises.

(4) To remove any doubt, an authorised person may enter premises under subsection (1) without payment of an entry fee or other charge.

(5) For subsection (1) (d), the inspector may enter the premises with any necessary assistance and force.

An authorised person may not remain at premises entered under this part if the authorised person does not produce his or her identity card when asked by the occupier.

(1) When seeking the consent of an occupier to enter premises under section 78 (1) (b), an authorised person must—

(a) produce his or her identity card; and

(b) tell the occupier—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused.

(2) If the occupier consents, the authorised person must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)—

(a) that the occupier was told—

(i) the purpose of the entry; and

(ii) that anything found and seized under this part may be used in evidence in court; and

(iii) that consent may be refused; and

(b) that the occupier consented to the entry; and

(c) stating the time and date when consent was given.

(3) If the occupier signs an acknowledgment of consent, the authorised person must immediately give a copy to the occupier.

(4) A court must find that the occupier did not consent to entry to the premises by the authorised person under this part if—

(a) the question whether the occupier consented to the entry arises in a proceeding in the court; and

(b) an acknowledgment of consent for the entry is not produced in evidence; and

(c) it is not proved that the occupier consented to the entry.

(1) An authorised person who enters premises under this part may, for this Act, do 1 or more of the following in relation to the premises or anything at the premises:

(a) inspect or examine;

(b) take measurements or conduct tests;

(c) take samples;

(d) make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings);

(e) require the occupier, or anyone at the premises, to give the authorised person reasonable help to exercise a power under this part.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(2) A person must take all reasonable steps to comply with a requirement made of the person under subsection (1) (e).

Maximum penalty: 50 penalty units.

(1) An authorised person who enters premises under this part with the occupier’s consent may seize anything at the premises if—

(a) the authorised person is satisfied, on reasonable grounds, that the thing is connected with an offence against this Act; and

(b) seizure of the thing is consistent with the purpose of the entry told to the occupier when seeking the occupier’s consent.

(2) An authorised person who enters premises under a warrant under this part may seize anything at the premises that the authorised person is authorised to seize under the warrant.

(3) An authorised person who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything at the premises if satisfied, on reasonable grounds, that—

(a) the thing is connected with an offence against this Act; and

(b) the seizure is necessary to prevent the thing from being—

(i) concealed, lost or destroyed; or

(ii) used to commit, continue or repeat the offence.

(4) Having seized a thing, an authorised person may—

(a) remove the thing from the premises where it was seized (the place of seizure) to another place; or

(b) leave the thing at the place of seizure but restrict access to it.

(5) A person commits an offence if—

(a) the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (4); and

(b) the person does not have an authorised person’s approval to interfere with the thing.

Maximum penalty: 50 penalty units.

(6) An offence against subsection (5) is a strict liability offence.

(1) An authorised person may require a person to state the person’s name and home address if the authorised person suspects, on reasonable grounds, that the person is committing, is about to commit, or has just committed, an offence against this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).

(2) If an authorised person makes a requirement of a person under subsection (1), the authorised person must—

(a) tell the person the reasons for the requirement; and

(b) as soon as practicable, record the reasons.

(3) A person commits an offence if the person contravenes a requirement under subsection (1).

Maximum penalty: 10 penalty units.

(4) However, a person is not required to comply with a requirement under subsection (1) if, when asked by the person, the authorised person does not produce his or her identity card for inspection by the person.

(5) An offence against subsection (3) is a strict liability offence.

(6) In this section:

home address, of a person, means the address of the place where the person usually lives.

(1) An authorised person may apply to a magistrate for a warrant to enter premises.

(2) The application must be sworn and state the grounds on which the warrant is sought.

(3) The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting—

(a) there is a particular thing or activity connected with an offence against this Act; and

(b) the thing or activity—

(i) is, or is being engaged in, at the premises; or

(ii) may be, or may be engaged in, at the premises within the next 14 days.

(5) The warrant must state—

(a) that an authorised person may, with any necessary assistance and force, enter the premises and exercise the authorised person’s powers under this part; and

(b) the offence for which the warrant is issued; and

(c) the things that may be seized under the warrant; and

(d) the hours when the premises may be entered; and

(e) the date, within 14 days after the day of the warrant’s issue, when the warrant ends.

(1) An authorised person may apply for a warrant by phone, fax, radio or other form of communication if the authorised person considers it necessary because of—

(a) urgent circumstances; or

(b) other special circumstances.

(2) Before applying for the warrant, the authorised person must prepare an application stating the grounds on which the warrant is sought.

(3) The authorised person may apply for the warrant before the application is sworn.

(4) After issuing the warrant, the magistrate must immediately fax a copy to the authorised person if it is practicable to do so.

(5) If it is not practicable to fax a copy to the authorised person—

(a) the magistrate must—

(i) tell the authorised person what the terms of the warrant are; and

(ii) tell the authorised person the date and time the warrant was issued; and

(b) the authorised person must complete a form of warrant (the warrant form) and write on it—

(i) the magistrate’s name; and

(ii) the date and time the magistrate issued the warrant; and

(iii) the warrant’s terms.

(6) The faxed copy of the warrant, or the warrant form properly completed by the authorised person, authorises the entry and the exercise of the authorised person’s powers under this part.

(7) The authorised person must, at the first reasonable opportunity, send to the magistrate—

(a) the sworn application; and

(b) if the authorised person completed a warrant form—the completed warrant form.

(8) On receiving the documents, the magistrate must attach them to the warrant.

(9) A court must find that a power exercised by an authorised person was not authorised by a warrant under this section if—

(a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and

(b) the warrant is not produced in evidence; and

(c) it is not proved that the exercise of power was authorised by a warrant under this section.

(1) An authorised person must, before anyone enters premises under a search warrant—

(a) announce that the authorised person is authorised to enter the premises; and

(b) give anyone at the premises an opportunity to allow entry to the premises; and

(c) if the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises—identify himself or herself to the person.

(2) The authorised person is not required to comply with subsection (1) if the authorised person believes, on reasonable grounds, that immediate entry to the premises is required to ensure—

(a) the safety of anyone (including the authorised person or any person assisting); or

(b) that the effective execution of the warrant is not frustrated.

If the occupier of the premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the authorised person or a person assisting must make available to the person—

(a) a copy of the warrant; and

(b) a document setting out the rights and obligations of the person.

(1) If the occupier of premises, or someone else who apparently represents the occupier, is present at the premises while a search warrant is being executed, the person is entitled to observe the search being conducted.

(2) However, the person is not entitled to observe the search if—

(a) to do so would impede the search; or

(b) the person is under arrest, and allowing the person to observe the search being conducted would interfere with the objectives of the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

(1) As soon as practicable after a thing is seized by an authorised person under this part, the authorised person must give a receipt for it to the person from whom it was seized.

(2) If, for any reason, it is not practicable to comply with subsection (1), the authorised person must leave the receipt, secured conspicuously at the place of seizure under section 82 (Power to seize things)-.

(3) A receipt under this section must include the following:

(a) a description of the thing seized;

(b) an explanation of why the thing was seized;

(c) the authorised person’s name, and how to contact the authorised person;

(d) if the thing is moved from the premises where it is seized—where the thing is to be taken.

(1) A thing found at premises entered under a search warrant may be moved to another place for examination or processing to decide whether it may be seized under the warrant if—

(a) both of the following apply:

(i) there are reasonable grounds for believing that the thing is or contains something to which the warrant relates;

(ii) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; or

(b) the occupier of the premises agrees in writing.

(2) The thing may be moved to another place for examination or processing for no longer than 72 hours.

(3) An authorised person may apply to a magistrate for an extension of time if the authorised person believes, on reasonable grounds, that the thing cannot be examined or processed within 72 hours.

(4) The authorised person must give notice of the application to the occupier of the premises, and the occupier is entitled to be heard on the application.

(5) If a thing is moved to another place under this section, the authorised person must, if practicable—

(a) tell the occupier of the premises the address of the place where, and time when, the examination or processing will be carried out; and

(b) allow the occupier or the occupier’s representative to be present during the examination or processing.

(6) The provisions of this part relating to the issue of search warrants apply, with any necessary changes, to the giving of an extension under this section.

A person who would, apart from the seizure, be entitled to inspect a thing seized under this part may—

(a) inspect it; and

(b) if it is a document—take extracts from it or make copies of it.

(1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if—

(a) an infringement notice for an offence connected with the thing is not served on the owner within 1 year after the day of the seizure and either—

(i) a prosecution for an offence connected with the thing is not begun within the 1-year period; or

(ii) a prosecution for an offence connected with the thing is begun within the 1-year period but the court does not find the offence proved; or

(b) an infringement notice for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, the infringement notice is withdrawn and—

(i) a prosecution for an offence connected with the thing is not begun within 1 year after the day of the seizure; or

(ii) a prosecution for an offence connected with the thing is begun within 1 year after the day of the seizure but the court does not find the offence proved; or

(c) an information for an offence connected with the thing is served on the owner within 1 year after the day of the seizure, liability for the offence is disputed in accordance with the Magistrates Court Act 1930, section 132 (Disputing liability for infringement notice offence) and—

(i) an infringement notice is not laid in the Magistrates Court against the person for the offence within 60 days after the day notice is given under section 132 that liability is disputed; or

(ii) the Magistrates Court does not find the offence proved.

(2) If anything seized under this part is not required to be returned or reasonable compensation is not required to be paid under subsection (1), the thing—

(a) if forfeited to the Territory; and

(b) may be sold, destroyed or otherwise disposed of as the chief executive directs.

(1) This section applies if the council has reasonable grounds for suspecting that a person—

(a) has knowledge of information (the required information) reasonably required by the council for the administration or enforcement of this Act; or

(b) has possession or control of a document containing the required information.

(2) The council may give the person an order (an information discovery order) requiring the person to give the information, or produce the document, to the council.

(3) The information discovery order must be in writing and must include particulars of the following:

(a) the identity of the person to whom it is given;

(b) why the information is required;

(c) the time by which the order must be complied with;

(d) the operation of section 94.

A person commits an offence if the person intentionally contravenes a requirement of an information discovery order.

Maximum penalty: 100 penalty units.

Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and legal professional privilege.

(1) In the exercise, or purported exercise, of a function under this part, an authorised person must take all reasonable steps to ensure that the authorised person, and any person assisting the authorised person, cause as little inconvenience, detriment and damage as is practicable.

(2) If an authorised person, or a person assisting an authorised person, damages anything in the exercise or purported exercise of a function under this part, the authorised person must give written notice of the particulars of the damage to the person whom the authorised person believes, on reasonable grounds, is the owner of the thing.

(3) If the damage happens at premises entered under this part in the absence of the occupier, the notice may be given by leaving it secured in a conspicuous place at the premises.

(1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by an authorised person or a person assisting an authorised person.

(2) Compensation may be claimed and ordered in a proceeding for—

(a) compensation brought in a court of competent jurisdiction; or

(b) an offence against this Act brought against the person making the claim for compensation.

(3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4) The regulations may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

(1) The Minister may enter into an agreement (a heritage agreement) with a person in relation to the conservation of the heritage significance of a place or object.

(2) A heritage agreement may only be made in accordance with the council’s advice and with—

(a) the owner of the place or object; or

(b) if the owner consents—someone else.

(3) A heritage agreement may be made in relation to a place or object, whether or not it is registered.

(4) The regulations may provide that a stated Territory law does not apply to—

(a) a place to which a heritage agreement applies; or

(b) a place where there is an object to which a heritage agreement applies.

A heritage agreement may include provisions about 1 or more of the following:

(a) conservation of the place or object;

(b) provision of financial, technical or other professional advice or assistance needed for the conservation of the place or object;

(c) review of the valuation of the place or object;

(d) restrictions on the use of the place or object;

(e) requirements to carry out work;

(f) standards to which any work is to be carried out;

(g) restrictions on work that may be carried out;

(h) public appreciation of the heritage significance of the place or object;

(i) availability of the place or object for public inspection.

The Minister may, on the council’s advice, amend or end a heritage agreement—

(a) by agreement with the owner of the place or object; or

(b) in accordance with the original agreement.

A heritage agreement begins and ends on the dates stated in the agreement.

(1) A heritage agreement attaches to the land where the place or object is located and is binding on the owner of the land for the time being.

(2) The Minister must lodge a copy of each heritage agreement, and of any agreement to vary or end a heritage agreement, with the registrar-general for registration under the Land Titles Act 1925.

(3) The Minister must ensure as far as is practicable that the copy of the agreement is lodged with the registrar-general in registrable form.

Note The Land Titles Act 1925 provides for the registrar-general to register an agreement mentioned in s (2) under that Act (see s 48).

(1) A party to a heritage agreement may apply to the Supreme Court for an enforcement order to give effect to the agreement if—

(a) someone contravenes the agreement; or

(b) there are reasonable grounds for believing that someone may contravene the agreement.

(2) The council must enter details of an enforcement order in the heritage register as soon as possible after the order is made.

The council may arrange for the provision of financial, technical or other assistance that the council considers necessary or desirable for the conservation of a place or object subject to a heritage agreement.

In this part:

public authority—see the Annual Reports (Government Agencies) Act 2004, dictionary.

For this part, a place or object is a heritage place or heritage object for which a public authority is responsible if—

(a) the place or object—

(i) is vested in, or subject to the control of, the authority; or

(ii) is owned by the authority; and

(b) the place or object—

(i) is registered; or

(ii) although not registered, meets 1 or more heritage significance criteria; or

(iii) is an Aboriginal place or object.

(1) Within 1 month after the end of each financial year, each public authority must give the council a written report for the year that includes details of each heritage place and object for which it was responsible at any time during the year.

(2) If the public authority disposed of a heritage place or object during the year, the report must include details of the disposal.

(3) However, a public authority is not required to include details of a heritage place or object in the report if—

(a) subsection (2) does not apply to the place or object; and

(b) the details of the place or object were included in a previous report under this section to the council; and

(c) the details given to the council have not changed.

(4) Also, a public authority need not comply with this section for the 1st financial year that ends after the commencement of this section, or the following financial year.

(5) Subsection (4) and this subsection expire 2 years after the day this section commences.

(6) The regulations may prescribe information that may, must or must not be included in a report under this section.

(1) Within 2 years after the commencement of this section, each public authority must begin an audit to identify each heritage place or object for which it is responsible.

(2) Each public authority must give a written report about the audit to the council within 3 years after the day this section commences.

(3) If, because of the audit, a public authority identifies a heritage place or object that is not registered, the authority must nominate the place or object for provisional registration.

(4) The regulations may prescribe—

(a) how a heritage audit must be done; and

(b) information that may, must or must not be included in a report under this section.

(5) This section expires 4 years after the day it commences.

(1) The council may, in writing, direct a public authority to prepare a conservation management plan for a heritage place or object for which the authority is responsible.

(2) The public authority must prepare the conservation management plan and give the plan to the council within the time (no less than 1 month) allowed by the council in the direction.

(3) If the council considers that the conservation management plan adequately manages the threat, or potential threat, the council—

(a) may approve the plan in writing; and

(b) if the council approves the plan—must tell the public authority in writing that it has approved the plan.

(4) If the council approves the conservation management plan, the public authority must act in accordance with the plan.

Each of the following is a reviewable decision:

(a) a decision by the council not to provisionally register a place or object under section 30;

(b) a decision by the Minister to extend, or not extend, a period of provisional registration under section 34;

(c) a decision by the council to register, or not register, a place or object under section 38;

(d) a decision by the council to cancel, or not cancel, the registration of a place or object under section 45;

(e) a decision by the council to approve, or not approve, the publication of restricted information under section 54;

(f) a decision by the Minister to make, or not make, a heritage direction under section 60;

(g) a decision by the Minister to revoke, or not revoke, a heritage direction under section 60.

(1) The maker of a reviewable decision must use its best endeavours to give written notice of the decision to each interested person for the place or object to which the decision relates.

(2) The notice must comply with the requirements of the code of practice in force under the Administrative Appeals Tribunal Act 1989, section 25B (1).

(3) In particular, the notice must tell the person—

(a) that a person whose interests are affected by the decision may apply to the administrative appeals tribunal for review of the decision, and how the application must be made; and

(b) about the options available under other Territory laws to have the decision reviewed by a court or the ombudsman.

A person may apply to the administrative appeals tribunal for review of a reviewable decision.

(1) The Minister must ensure that each Aboriginal object owned by the Territory is kept in a repository declared under subsection (2).

(2) The Minister may, in writing, declare a place to be a repository only if satisfied, on reasonable grounds, that the place is suitable for the conservation of Aboriginal objects owned by the Territory.

Note The power to make a statutory instrument (including a declaration) includes power to amend or repeal the instrument (see Legislation Act, s 46)

(3) Before making a declaration, the Minister must consult, and consider the views of, the council and each representative Aboriginal organisation about the proposed declaration.

(4) A declaration must not include restricted information.

(5) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) An executive officer of a corporation commits an offence if—

(a) the corporation contravenes a provision of this Act; and

(b) the contravention is an offence against this Act (a relevant offence); and

(c) the officer was reckless about whether, the contravention would happen; and

(d) the officer was in a position to influence the conduct of the corporation in relation to the contravention; and

(e) the officer failed to take all reasonable steps to prevent the contravention.

Maximum penalty: The maximum penalty that may be imposed for the commission of the relevant offence by an individual.

(2) This section applies whether or not the corporation is prosecuted for, or convicted of, the relevant offence.

(3) In deciding whether the executive officer took (or failed to take) reasonable steps to prevent the contravention, a court must consider the following:

(a) any action the officer took directed towards ensuring the following (to the extent that the action is relevant to the act or omission):

(i) that the corporation arranges regular professional assessments of the corporation’s compliance with the contravened provision;

(ii) that the corporation implements any appropriate recommendation arising from such an assessment;

(iii) that the corporation’s employees, agents and contractors have a reasonable knowledge and understanding of the requirement to comply with the contravened provision;

(b) any action the officer took when the officer became aware that the contravention was, or might be, about to happen.

(4) Subsection (3) does not limit the matters to which the court may have regard.

(5) This section does not apply if the corporation would have a defence to a prosecution for the relevant offence.

(6) In this section:

executive officer, of a corporation, means a person, by whatever name called and whether or not the person is a director of the corporation, who is concerned with, or takes part in, the corporation’s management.

A document may be given to the council by giving it to the chief executive.

Note 1 For how documents may be served generally, see Legislation Act, pt 19.5.

Note 2 The chief executive may delegate the function under this section to a public sector officer, for example, a public servant who is the council secretary (see Public Sector Management Act 1994, s 36).

(1) This section applies to someone who is, or has been, a member of the council or an authorised person.

(2) A civil proceeding does not lie against the person in relation to anything done or omitted to be done honestly by the person in the exercise or purported exercise of a function under this Act.

(3) Subsection (2) does not affect any liability the Territory would have for the act or omission apart from that subsection.

(1) The Minister may, in writing, approve forms for this Act.

(2) If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see Legislation Act, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) The Minister may, in writing, determine fees for this Act.

Note The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3)

(2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

The council may delegate the council’s functions under this Act to the chief executive.

Note 1 For the making of delegations and the exercise of delegated functions, see Legislation Act, pt 19.4.

Note 2 The chief executive may subdelegate a function delegated to the chief executive under this section (see Public Sector Management Act 1994, s 36).

The Executive may make regulations for this Act.

Note Regulations must be notified and presented to the Legislative Assembly, under the Legislation Act.

(1) In this section:

review period means the 5 years beginning on the day this section commences.

(2) As soon as practicable after the review period, the Minister must review the operation of this Act during the review period.

(3) The Minister must present the report of the review to the Legislative Assembly within 6 months after the review period ends.

(4) This section expires 6 years after the day it commences.

In this part:

commencement day means the day section 20 (Establishment of heritage register) commences.

Heritage Objects Act means the Heritage Objects Act 1991 (repealed).

Land Act means the Land Act as in force immediately before the commencement day.

old heritage objects register means—

(a) an interim heritage objects register under the Heritage Objects Act; or

(b) a heritage objects register under the Heritage Objects Act.

old heritage places register means—

(a) an interim heritage places register under the Land Act; or

(b) a heritage places register under the Land Act.

The following legislation is repealed:

• Heritage Objects Act 1991 A1991-101

• Heritage Objects (Assessment of Heritage Significance Criteria) Determination 1995 DI1995-35

• Heritage Objects (Heritage Register) Approval 1996 DI1996-27

• Heritage Objects (Heritage Register) Approval 1996 DI1996-28

• Heritage Objects (Heritage Register) Determination 1995 DI1995-36

This Act amends the legislation mentioned in schedule 1.

(1) In this section:

application means an application under the Land Act, section 59 for the inclusion of a provision in an interim heritage places register under that Act.

(2) An application in relation to a place is taken to be a nomination for provisional registration of the place.

(3) To remove any doubt, the council may amend the heritage register to reflect the operation of this section.

(1) A place included in an old heritage places register is taken to be registered under division 6.2.

(2) The details entered in an old heritage places register for a place are taken to be the registration details for the place.

(3) Subsection (2) does not apply to any requirement stated in an old heritage places register for the conservation of the heritage significance of the place.

(4) To remove any doubt, the council may amend the heritage register to reflect the operation of this section.

(1) In this section:

conservation requirement means a requirement stated in an old heritage places register for the conservation of the heritage significance of a place identified in the register, including any requirement for the conservation of features identified as intrinsic to that heritage significance.

(2) A conservation requirement for a place identified in an old heritage places register is taken to be a heritage guideline applying to the place.

(1) An object included in an old heritage objects register is taken to be registered under division 6.2.

(2) The details entered in an old heritage objects register for an object are taken to be the registration details for the object.

(3) Subsection (2) does not apply to any requirement stated in an old heritage objects register for the conservation of the heritage significance of the object.

(4) To remove any doubt, the council may amend the heritage register to reflect the operation of this section.

(1) In this section:

conservation requirement means a requirement stated in an old heritage objects register for the conservation of the heritage significance of an object identified in the register, including any requirement for the conservation of features identified as intrinsic to that heritage significance.

(2) A conservation requirement for an object identified in an old heritage objects register is taken to be a heritage guideline applying to the object.

Restricted information on an old heritage places register, or an old heritage objects register, is restricted information under this Act.

(1) The regulations may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) Without limiting the scope of subsection (1), the regulations may prescribe matters necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Act.

(3) Regulations made for this section must not be taken to be inconsistent with this Act as far as they can operate concurrently with this Act.

(4) This section is additional to, and does not limit, section 131.

The regulations may modify the operation of this part to make provision in relation to any matter that is not already, or is not (in the Executive’s opinion) adequately, dealt with in this part.

This part expires 1 year after the commencement day.

• Heritage Act 2004

• Heritage Act 2004

(3) The planning and land authority may refuse to approve a community title scheme proposal if the proposal is inconsistent with a heritage guideline or heritage direction under the Heritage Act 2004.

(b) a place, other than a structure or group of structures, registered under the Heritage Act 2004; or

heritage register—see the Heritage Act 2004, section 20.

(2) A certificate purporting to be signed by the planning and land authority stating that an area is an area to which section 4 (1), definition of area of high conservation value, paragraph (a), (c) or (d) applies is evidence of the matter stated.

(iii) any recommendation or submission made by the heritage council and mentioned in section 17 (Consultation with heritage council); and

(i) a direction mentioned in paragraph (b) (i); or

(iii) any recommendation or submission made by the heritage council and mentioned in section 17 (Consultation with heritage council); and

renumber paragraphs when Act next republished under the Legislation Act

In preparing a draft plan variation, the planning and land authority must consult the heritage council and consider any recommendation or submission made by the council in relation to the variation.

(1) A consultation notice under section 19 must state whether or not section 9 (Effect of draft plan variation) applies in relation to the draft variation.

or the heritage council

(c) the carrying out of work that would affect the landscape of the land except if the land—

(i) is leased for residential purposes only; and

(ii) is not registered, or nominated for provisional registration, under the Heritage Act 2004;

(ba) each notice given to the heritage council under section 229 of a development application that relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004; and

(bb) each advice given to the planning and land authority by the heritage council under the Heritage Act 2004, section 58 (Advice about effect of development on heritage significance); and

(a) must give the heritage council—

(i) notice of each application that relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004; and

(ii) a copy of each application mentioned in subparagraph (i); and

(iii) a copy of each objection, or document containing comments about the development, received by the authority that relate to the effect of the development on the heritage significance of the place or object; and

(1A) If the application relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the planning and land authority must give a copy of the direction to the heritage council.

(a) the information and documents received by the authority in relation to the application, including any advice under the Heritage Act 2004, section 58 (Advice about effect of development on heritage significance); and

(6) If the Minister decides to consider an application, the Minister must—

(a) tell the applicant in writing about the decision and the grounds on which the decision was made; and

(b) if the application relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004—ensure that the Minister has the advice of the heritage council under that Act, section 58 (Advice about effect of development on heritage significance); and

(c) ensure that the Minister has the comments of the planning and land authority and the planning and land council on the application; and

(d) approve or refuse the application under section 230.

(1) In approving or refusing to approve an application, the relevant authority must consider the following:

(a) the comments of any entity to which the authority referred the application for comment;

(b) each objection or other submission received by the authority in relation to the application that has not been withdrawn;

(c) a preliminary assessment under division 4.2, or a report under section 128, in relation to the environmental impact of the proposed development;

(d) any assessment made, or the report of any inquiry conducted, in relation to the proposed development;

(e) any advice given to the authority by the heritage council under the Heritage Act 2004, section 58 (Advice about effect of development on heritage significance);

(f) if the relevant authority is the Minister—the comments of the planning and land authority and the planning and land council.

(2) If the heritage council has given the planning and land authority advice about the application, the relevant authority must, for the purpose of avoiding or minimising the impact of the development on the heritage significance of a place or object, consider the following:

(a) any applicable heritage guidelines;

(b) whether there is a prudent and feasible alternative to the proposed development, or relevant aspects of it.

(3) Also, if the heritage council advice indicates the proposed development would be affected by heritage guidelines relating to the heritage significant of an Aboriginal place or object registered under the Heritage Act 2004, the relevant authority must consult each representative Aboriginal organisation and consider any further comments by the heritage council about the development.

(4) In this section:

Aboriginal object—see the Heritage Act 2004, section 9.

Aboriginal place—see the Heritage Act 2004, section 9.

representative Aboriginal organisation—see the Heritage Act 2004, section 14.

If an application relates to a place registered, or nominated for provisional registration, under the Heritage Act 2004, the planning and land authority must give the heritage council—

(a) written notice of the decision to approve or refuse the application; and

(b) a copy of the decision.

(g) if the approval is in relation to a place registered, or nominated for provisional registration, under the Heritage Act 2004—that the applicant enter into a heritage agreement under that Act for the conservation of the heritage significance of the place; or

(b) if the approval is in relation to a place registered, or nominated for provisional registration, under the Heritage Act 2004—the applicant is convicted of an offence against this part or the Heritage Act 2004.

(ba) if the order sought relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004—the heritage council; and

renumber paragraphs when Act next republished under the Legislation Act

(ba) if the proposed order relates to a place or object registered, or nominated for provisional registration, under the Heritage Act 2004—the heritage council; and

(1A) To remove any doubt, the heritage council may apply to the AAT for review of a decision mentioned in subsection (1).

(1) Application may be made to the AAT for review of the following decisions:

(a) a decision mentioned in subsection (3) or (4);

(b) a decision mentioned in schedule 4, part 4.2, column 4.

(1) The planning and land authority must, in writing, make amendments of the plan that are necessary or convenient because of the omission of the heritage places register by the Heritage Act 2004.

(2) An instrument under subsection (1) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

heritage direction—see the Heritage Act 2004, section 60.

heritage significance—see the Heritage Act 2004, section 60.

(b) leased for residential purposes and is not a place registered under the Heritage Act 2004.

(b) the development—

(i) affects a place that is registered, or nominated for provisional registration, under the Heritage Act 2004; and

(ii) would be inconsistent with a heritage guideline applying to the place; or

heritage council means the Australian Capital Territory Heritage Council under the Heritage Act 2004.

heritage register means the heritage register under the Heritage Act 2004.

(1) The section applies if an application under section 15B relates to the placement of an object at a place registered, or nominated for provisional registration, under the Heritage Act 2004.

(2) The Minister must—

(a) give a copy of the application to the heritage council; and

(b) in deciding on the application under section 15C, consider any written recommendation or submission about the placement given to the Minister by the council within 15 working days after the day the copy of the application is given to the council.

(1) If a notice under section 109 or section 110 is about network operations that may affect a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the utility must also give a copy of the notice to the heritage council at least 7 days before the day operations begin.

(2) Subsection (1) does not apply if the operations are to be carried out in urgent circumstances in which it is necessary to protect—

(a) the integrity of a network or network facility; or

(b) the health or safety of people; or

(c) public or private property; or

(d) the environment.

(1) If a notice under section 125 is about action that may affect a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the utility must also give a copy of the notice to the heritage council as soon as is practicable.

(2) If a utility acts in urgent circumstances as mentioned in section 125 (7), it must give the heritage council written notice of the action as soon as is practicable.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1 defines the following terms:

• chief executive

• chief planning executive

• conservator of flora and fauna

• entity

• exercise

• function

• planning and land authority

• Minister

• national capital authority

• working day.

Aboriginal object—see section 9.

Aboriginal place—see section 9.

Aboriginal tradition means Aboriginal tradition, observance, custom or belief, including Aboriginal tradition, observance, custom or belief that has evolved or developed since European colonisation of Australia.

appeal, in relation to a reviewable decision, means an application to the administrative appeals tribunal to review the decision.

at premises includes on the premises.

authorised person means a person appointed as an authorised person under section 76.

cancellation proposal, for part 7 (Cancellation of registration)—see section 41.

connected, for part 14 (Enforcement)—see section 75.

conservation includes preservation, protection, maintenance, restoration and reconstruction.

conservation management plan—see section 15.

conservation requirement means a requirement under any heritage guideline that applies, directly or indirectly, to conservation of the heritage significance of a place or object.

council means the Australian Capital Territory Heritage Council established under section 16.

daily newspaper means a daily newspaper that circulates generally in the ACT.

development, for part 10 (Land development applications)—see section 56.

enforcement order means an order under section 102.

engage in conduct means—

(a) do an act; or

(b) omit to do an act.

heritage agreement—see section 97.

heritage direction—see section 60.

heritage guidelines—see section 25.

heritage object, for which a public authority is responsible—see section 105.

heritage order—see section 67.

heritage place, for which a public authority is responsible—see section 105.

heritage register—see section 20.

heritage significance—see section 10.

heritage significance criteria—see section 10.

information discovery order—see section 93.

interested person—see section 13.

Land Act means the Land (Planning and Environment) Act 1991.

nomination means nomination of a place or object under section 27 for provisional registration.

nomination details, for a place or object—see section 27 (3).

object—see section 8 (2).

occupier, for part 14 (Enforcement)—see section 75.

offence, for part 14 (Enforcement)—see section 75.

owner, of a place, means—

(a) the registered proprietor of a lease granted under the Land (Planning and Environment) Act 1991 over land that includes the place; or

(b) a unit owner within the meaning of the Unit Titles Act 2001, if the lease of the unit is over land that includes the place; or

(c) an owners corporation within the meaning of the Unit Titles Act 2001, if the common property covers land that includes the place.

partial cancellation, for part 7 (Cancellation of registration)—see section 48.

place—see section 8 (1).

premises includes land.

public authority, for part 16 (Heritage and public authorities)—see section 104

public consultation period—

(a) for division 6.2 (Registration)—see section 35; and

(b) for part 7 (Cancellation of registration)—see section 44.

registered—see section 11.

registered proprietor, of a lease, means the person registered under the Land Titles Act 1925 as the proprietor of the lease.

registration details—see section 12.

representative Aboriginal organisation—see section 14.

restricted information means information restricted under section 51 (Restricted non-Aboriginal information) or section 52 (Restricted Aboriginal information).

reviewable decision—see section 109.

Presentation speech made in the Legislative Assembly on 2004.

Notified under the Legislation Act on 2004.

For the latest republication of amended laws, see www.legislation.act.gov.au.