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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Environment
and Heritage Legislation Amendment Bill (No. 1)
2002
No. ,
2002
(Environment and
Heritage)
A Bill for an Act to amend
legislation relating to the environment, and for related
purposes
Contents
Environment Protection and Biodiversity Conservation Act
1999 4
Environment Protection and Biodiversity Conservation Act
1999 71
Environment Protection and Biodiversity Conservation Act
1999 74
A Bill for an Act to amend legislation relating to the
environment, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Environment and Heritage Legislation
Amendment Act (No. 1) 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
|
3. Schedule 2 |
The later of: |
|
|
4. Schedule 3 |
At the same time as the provisions covered by item 2 of this
table |
|
|
5. Schedule 4 |
The day on which this Act receives the Royal Assent |
|
Note 1: This table relates only to the provisions of this
Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after
assent.
Note 2: The Director of Indigenous Heritage Protection is
expected to be established by the Aboriginal and Torres Strait Islander Heritage
Protection Act, which may be enacted in 2002 or a later year.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If the provisions covered by item 2 of the table do not commence
within the period of 6 months beginning on the latest of the following
days:
(a) the day on which this Act receives the Royal Assent;
(b) the day on which the Australian Heritage Council Act 2002
receives the Royal Assent;
(c) the day on which the Australian Heritage Council (Consequential and
Transitional Provisions) Act 2002 receives the Royal Assent;
they commence on the first day after the end of that period.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Environment Protection and
Biodiversity Conservation Act 1999
1 After paragraph 3(1)(c)
Insert:
(ca) to provide for the protection and conservation of heritage;
and
2 After paragraph 3(2)(f)
Insert:
(fa) includes provisions to identify places for inclusion in the National
Heritage List and Commonwealth Heritage List and to enhance the protection,
conservation and presentation of those places; and
3 Subsection 12(4)
Omit “Act”, substitute “section”.
4 After Subdivision A of Division 1 of
Part 3
Insert:
(1) A constitutional corporation, the Commonwealth or a Commonwealth
agency must not take an action that has, will have or is likely to have a
significant impact on the National Heritage values of a National Heritage
place.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) A person must not, for the purposes of trade or commerce:
(a) between Australia and another country; or
(b) between 2 States; or
(c) between a State and Territory; or
(d) between 2 Territories;
take an action that has, will have or is likely to have a significant
impact on the National Heritage values of a National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(3) A person must not take an action in:
(a) a Commonwealth area; or
(b) a Territory;
that has, will have or is likely to have a significant impact on the
National Heritage values of a National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(4) A person must not take an action that has, will have or is likely to
have a significant impact on the National Heritage values, to the extent that
they are indigenous heritage values, of a National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Note: For indigenous heritage value, see
section 528.
(5) A person must not take an action that has, will have or is likely to
have a significant impact on the National Heritage values of a National Heritage
place in an area in respect of which Australia has obligations under Article 8
of the Biodiversity Convention.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(6) Subsection (5) only applies to actions whose prohibition is
appropriate and adapted to give effect to Australia’s obligations under
Article 8 of the Biodiversity Convention. (However, that subsection may not
apply to certain actions because of subsection (8).)
(7) A person must not take outside the Australian jurisdiction an action
that has, will have or is likely to have a significant impact on the National
Heritage values of a National Heritage place outside the Australian
jurisdiction.
Civil Penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(8) Subsections (1) to (5) (inclusive) and (7) do not apply to an
action if:
(a) an approval of the taking of the action by the constitutional
corporation, Commonwealth agency, Commonwealth or person is in operation under
Part 9 for the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency,
Commonwealth or person take the action without an approval under Part 9 for
the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of
Part 7 that this section is not a controlling provision for the action and,
if the decision was made because the Minister believed the action would be taken
in a manner specified in the notice of the decision under section 77, the
action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(1) A constitutional corporation, or a Commonwealth agency that does not
enjoy the immunities of the Commonwealth, is guilty of an offence if:
(a) the corporation or agency takes an action; and
(b) the action results or will result in a significant impact on the
National Heritage values of a National Heritage place.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) A constitutional corporation, or a Commonwealth agency that does not
enjoy the immunities of the Commonwealth, is guilty of an offence if:
(a) the corporation or agency takes an action; and
(b) the action is likely to have a significant impact on the National
Heritage values of a National Heritage place; and
(c) the corporation or agency is reckless as to the facts in
paragraph (b).
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and Territory; or
(iv) between 2 Territories; and
(c) the action results or will result in a significant impact on the
National Heritage values of a National Heritage place.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and Territory; or
(iv) between 2 Territories; and
(c) the action is likely to have a significant impact on the National
Heritage values of a National Heritage place; and
(d) the person is reckless as to the facts in
paragraph (c).
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(5) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in:
(i) a Commonwealth area; or
(ii) a Territory; and
(c) the action results or will result in a significant impact on the
National Heritage values of a National Heritage place.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(6) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in:
(i) a Commonwealth area; or
(ii) a Territory; and
(c) the action is likely to have a significant impact on the National
Heritage values of a National Heritage place; and
(d) the person is reckless as to the facts in
paragraph (c).
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(7) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on the
National Heritage values, to the extent that they are indigenous heritage
values, of a National Heritage place.
Note 1: For indigenous heritage value, see
section 528.
Note 2: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(8) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the National
Heritage values, to the extent that they are indigenous heritage values, of a
National Heritage place; and
(c) the person is reckless as to the facts in
paragraph (b).
Note 1: For indigenous heritage value, see
section 528.
Note 2: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(9) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on the
National Heritage values of a National Heritage place; and
(c) the National Heritage place is in an area in respect of which
Australia has obligations under Article 8 of the Biodiversity
Convention.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(10) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the National
Heritage values of a National Heritage place; and
(c) the National Heritage place is in an area in respect of which
Australia has obligations under Article 8 of the Biodiversity Convention;
and
(d) the person is reckless as to the facts in paragraphs (b) and
(c).
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(11) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action results or will result in a significant impact on the
National Heritage values of a National Heritage place; and
(d) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(12) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the National
Heritage values of a National Heritage place; and
(d) the person is reckless as to the facts in paragraph (c);
and
(e) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(13) An offence against any of subsections (1) to (12) (inclusive) is
punishable on conviction by imprisonment for a term not more than 7 years, a
fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(14) Subsections (9) and (10) only apply to actions whose prohibition
is appropriate and adapted to give effect to Australia’s obligations under
Article 8 of the Biodiversity Convention. (However, those subsections may not
apply to certain actions because of subsection (16).)
(15) Section 14.1 (standard geographical jurisdiction) of the
Criminal Code does not apply to an offence created by this
section.
Note: Section 5 affects the extra-territorial operation
of this section.
(16) Subsections (1) to (12) (inclusive) do not apply to an action
if:
(a) an approval of the taking of the action by the constitutional
corporation, Commonwealth agency or person is in operation under Part 9 for
the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency
or person take the action without an approval under Part 9 for the purposes
of this section; or
(c) there is in force a decision of the Minister under Division 2 of
Part 7 that this section is not a controlling provision for the action and,
if the decision was made because the Minister believed the action would be taken
in a manner specified in the notice of the decision under section 77, the
action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
5 Subsection 26(3) (note)
Repeal the note, substitute:
Note 1: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth
land, because the heritage values of a place are part of the environment. See
the definition of environment in
section 528.
Note 2: Section 28 regulates actions by the
Commonwealth or a Commonwealth agency with a significant impact on the
environment.
6 Subsection 27A(6) (note
2)
Repeal the note, substitute:
Note 2: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth
land, because the heritage values of a place are part of the environment. See
the definition of environment in
section 528.
Note 3: Section 28 regulates actions by the
Commonwealth or a Commonwealth agency with a significant impact on the
environment.
7 After Subdivision A of Division 2 of
Part 3
Insert:
(1) A person must not take outside the Australian jurisdiction an action
that has, will have or is likely to have a significant impact on the environment
in a Commonwealth Heritage place outside the Australian jurisdiction.
Civil Penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under
Part 9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of
Part 7 that this section is not a controlling provision for the action and,
if the decision was made because the Minister believed the action would be taken
in a manner specified in the notice of the decision under section 77, the
action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: Subdivision F of Division 1 and Subdivision A of
this Division protect the environment in Commonwealth Heritage places inside the
Australian jurisdiction because those places are in Commonwealth marine areas or
on Commonwealth land.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action results or will result in a significant impact on the
environment in a Commonwealth Heritage place; and
(d) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment
in a Commonwealth Heritage place; and
(d) the person is reckless as to the facts in paragraph (c);
and
(e) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(3) An offence against subsection (1) or (2) is punishable on
conviction by imprisonment for a term not more than 2 years, a fine not more
than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(4) Section 14.1 (standard geographical jurisdiction) of the
Criminal Code does not apply to an offence created by this
section.
Note: Section 5 affects the extra-territorial operation
of this section.
(5) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under
Part 9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of
Part 7 that this section is not a controlling provision for the action and,
if the decision was made because the Minister believed the action would be taken
in a manner specified in the notice of the decision under section 77, the
action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
8 Application
(1) This item is about the application of:
(a) Subdivision AA of Division 1 of Part 3 of the Environment
Protection and Biodiversity Conservation Act 1999; and
(b) Subdivision AA of Division 2 of that Part.
(2) Neither Subdivision applies to a particular action if, before the
commencement of this Schedule, the Minister has decided under section 75 of
that Act whether the action is a controlled action (whether the decision was
that the action is a controlled action or that the action is not a controlled
action).
9 Subsection 28(1) (note)
Repeal the note, substitute:
Note 1: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place from an action
taken by the Commonwealth or a Commonwealth agency, because the heritage values
of a place are part of the environment. See the definition of
environment in section 528.
Note 2: This section does not apply to decisions to
authorise activities. See Subdivision A of Division 1 of
Part 23.
10 At the end of Division 2 of
Part 3
Add:
(1) The regulations may provide that a specified action is taken to be an
action to which a specified regulatory provision applies.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) To avoid doubt, if, as a result of a regulation made for the purposes
of subsection (1), a regulatory provision applies to an action, the action
is taken to be described in the provision.
(3) In this section:
regulatory provision means:
(a) a civil penalty provision set out in this Division; or
(b) a provision of this Division that creates an offence.
11 Section 34 (after table
item 1A)
Insert:
|
1B |
section 15B |
the National Heritage values of a National Heritage place |
|
1C |
section 15C |
the National Heritage values of a National Heritage place |
12 Section 34 (after table
item 16B)
Insert:
|
16C |
section 27B |
the environment in a Commonwealth Heritage place outside the Australian
jurisdiction |
|
16D |
subsections 27C(1) and (2) |
the environment in a Commonwealth Heritage place outside the Australian
jurisdiction |
13 After section 34B
Insert:
(1) The Minister may make a declaration under section 33 relating to
a National Heritage place only if:
(a) the Minister is satisfied that the declaration will promote the
management of the place in accordance with the National Heritage management
principles; and
(b) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for
the purposes of such a declaration only if he or she is satisfied that the
management plan will promote the management of the place concerned in accordance
with the National Heritage management principles.
14 At the end of Subdivision C of
Division 2 of Part 4
Add:
(1) The Minister may make a declaration under section 33 relating to
a Commonwealth Heritage place only if:
(a) the Minister is satisfied that the declaration will promote the
management of the place in accordance with the Commonwealth Heritage management
principles; and
(b) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for
the purposes of such a declaration only if he or she is satisfied that the
management plan will promote the management of the place concerned in accordance
with the Commonwealth Heritage management principles.
15 After section 51
Insert:
(1) The Minister may enter into a bilateral agreement containing a
provision relating to a National Heritage place only if:
(a) the Minister is satisfied that the agreement will promote the
management of the place in accordance with the National Heritage management
principles; and
(b) the provision meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 46 for
the purposes of such a bilateral agreement only if he or she is satisfied that
the plan will promote the management of the place concerned in accordance with
the National Heritage management principles.
16 After subsection 74(1)
Insert:
Inviting comments from ATSIC
(1A) As soon as practicable after receiving a referral of a proposal to
take an action, the Environment Minister must:
(a) inform the Aboriginal and Torres Strait Islander Commission;
and
(b) invite the Commission to give the Minister comments within 10 business
days (measured in Canberra) on whether the proposed action is a controlled
action;
if the Minister thinks that section 15B, 15C, 23, 24A, 26, 27A, 27B,
27C or 28 could be a controlling provision for the action because of the
indigenous heritage value of a National Heritage place or Commonwealth Heritage
place.
Note 1: Subsections 15B(4) and subsections 15C(7) and (8)
protect the National Heritage values of National Heritage places, to the extent
that those values are indigenous heritage values.
Note 2: Sections 23, 24A, 26, 27A, 27B, 27C and 28
protect the environment, which includes the heritage values of places. See the
definition of environment in section 528.
17 Subsection 84(3A)
Omit “34C, 34D and 34E”, substitute “34BA, 34C, 34D, 34E
and 34F”.
18 After section 137
Insert:
In deciding whether or not to approve for the purposes of
section 15B or 15C the taking of an action, and what conditions to attach
to such an approval, the Minister must not act inconsistently with:
(a) the National Heritage management principles; or
(b) an agreement to which the Commonwealth is party in relation to a
National Heritage place.
19 Chapter 5 (heading)
Repeal the heading, substitute:
20 After paragraph
176(4)(b)
Insert:
(ba) heritage values of places;
21 Paragraph 304(a)
Repeal the paragraph, substitute:
(a) conservation agreements between the Commonwealth and persons related
to the protection and conservation of the following:
(i) biodiversity;
(ii) the world heritage values of declared World Heritage
properties;
(iii) the National Heritage values of National Heritage places;
(iv) the Commonwealth Heritage values of Commonwealth Heritage places;
and
22 Section 304
After “biodiversity” (last occurring), insert “, those
heritage values or both of those things”.
23 Subsections 305(1) to
(3)
Repeal the subsections, substitute:
(1) The Minister may, on behalf of the Commonwealth, enter into an
agreement (a conservation agreement) with a person for the
protection and conservation of all or any of the following:
(a) biodiversity in the Australian jurisdiction;
(b) the world heritage values of a declared World Heritage property in the
Australian jurisdiction;
(c) the National Heritage values of a National Heritage place (whether
inside or outside the Australian jurisdiction);
(d) the Commonwealth Heritage values of a Commonwealth Heritage place
(whether inside or outside the Australian jurisdiction).
(1A) The protection and conservation of the matters in subsection (1)
include all or any of the following:
(a) the protection, conservation and management of any listed species or
ecological communities, or their habitats;
(b) the management of things in a way necessary for the protection and
conservation of:
(i) the world heritage values of a declared World Heritage property;
or
(ii) the National Heritage values of a National Heritage place;
or
(iii) the Commonwealth Heritage values of a Commonwealth Heritage
place;
(c) the abatement of processes, and the mitigation or avoidance of
actions, that might adversely affect:
(i) biodiversity; or
(ii) the world heritage values of a declared World Heritage property;
or
(iii) the National Heritage values of a National Heritage place;
or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage
place.
Note: When the Minister is considering entering into a
conservation agreement, the Minister must take into account any responsibilities
of other Commonwealth Ministers that may be affected by the
agreement.
(2) However, the Minister must not enter into a conservation agreement
unless satisfied that:
(a) in the case of a proposed agreement wholly or partly for the
protection and conservation of biodiversity—the agreement:
(i) will result in a net benefit to the conservation of biodiversity;
and
(ii) is not inconsistent with a recovery plan, threat abatement plan or
wildlife conservation plan; and
(b) in the case of a proposed agreement wholly or partly for the
protection and conservation of heritage values—the agreement:
(i) will result in a net benefit to the conservation of those heritage
values; and
(ii) is not inconsistent with at least one of the Australian World
Heritage management principles, the National Heritage management principles and
the Commonwealth Heritage management principles.
(3) For the purposes of subsection (2), in deciding whether a
proposed agreement will result in a net benefit to the conservation of
biodiversity or heritage values, the Minister must have regard to the matters
(if any) prescribed by the regulations.
24 Saving of agreements
The amendment of section 305 of the Environment Protection and
Biodiversity Conservation Act 1999 by this Schedule does not affect the
validity of a conservation agreement made before the commencement of this
Schedule.
25 Saving of matters prescribed by the
regulations
Matters prescribed for the purposes of section 305 of the
Environment Protection and Biodiversity Conservation Act 1999 immediately
before the commencement of this Schedule are taken to be, immediately after the
commencement of this Schedule, matters prescribed for the purposes of that
section as amended by this Schedule.
26 Subsection 305(6)
After “agreement”, insert “that is wholly or partly for
the protection and conservation of biodiversity”.
27 Paragraphs 306(1)(a) and
(b)
Repeal the paragraphs, substitute:
(a) activities that promote the protection and conservation of all or any
of the following:
(i) biodiversity;
(ii) the world heritage values of a declared World Heritage
property;
(iii) the National Heritage values of a National Heritage place;
(iv) the Commonwealth Heritage values of a Commonwealth Heritage
place;
(b) controlling or prohibiting, in any place covered by the agreement,
actions or processes that might adversely affect:
(i) the species, ecological communities, habitats or potential habitats
covered by the agreement; or
(ii) the world heritage values of a declared World Heritage property;
or
(iii) the National Heritage values of a National Heritage place;
or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage
place;
28 Paragraphs 306(2)(a) and
(b)
Repeal the paragraphs, substitute:
(a) requiring the owner to carry out specified activities, or to do
specified things, that promote the conservation of all or any of the
following:
(i) biodiversity;
(ii) the world heritage values of a declared World Heritage
property;
(iii) the National Heritage values of a National Heritage place;
(iv) the Commonwealth Heritage values of a Commonwealth Heritage
place;
(b) restricting the use of the place, or requiring the owner to refrain
from, control or refuse to permit, actions or processes that may adversely
affect:
(i) the species, ecological communities, habitats or potential habitats
covered by the agreement; or
(ii) the world heritage values of a declared World Heritage property;
or
(iii) the National Heritage values of a National Heritage place;
or
(iv) the Commonwealth Heritage values of a Commonwealth Heritage
place;
29 Subsection 309(3)
Omit “components of biodiversity.”, substitute:
: (a) components of biodiversity; or
(b) the world heritage values of a declared World Heritage property;
or
(c) the National Heritage values of a National Heritage place;
or
(d) the Commonwealth Heritage values of a Commonwealth Heritage
place.
30 At the end of
section 323
Add:
(3) In this section:
cultural heritage has the meaning given by the World Heritage
Convention.
natural heritage has the meaning given by the World Heritage
Convention.
31 After Division 1 of
Part 15
Insert:
The following is a simplified outline of this Division:
The Minister may only include a place in the National Heritage List if the
Minister is satisfied that the place has one or more National Heritage
values.
The Minister must ask the Australian Heritage Council for an assessment of
the place’s National Heritage values and invite public comments on the
proposed inclusion of the place in the National Heritage List.
The Minister must make plans to protect and manage the National Heritage
values of National Heritage places. The Commonwealth and Commonwealth agencies
must not contravene those plans.
The Commonwealth must try to prepare and implement plans for managing other
National Heritage places, in co-operation with the States and self-governing
Territories.
The Commonwealth and Commonwealth agencies have duties relating to National
Heritage places in States and Territories.
The Commonwealth can provide assistance for the identification, promotion,
protection or conservation of National Heritage places.
Note: Section 15B prohibits an action that has a
significant impact on the National Heritage values of a National Heritage place,
unless the person taking the action has the approval of the Minister or certain
other requirements are met.
This Division extends to places, acts and omissions outside the
Australian jurisdiction, except so far as the contrary intention
appears.
(1) The Minister must keep a written record of places and their heritage
values in accordance with this Subdivision. The record is called the
National Heritage List.
Note: Later provisions of this Subdivision explain what
places and heritage values are included in the National Heritage
List.
(2) A place may be included in the National Heritage List only if the
Minister is satisfied that the place has one or more National Heritage values. A
place that is included in the National Heritage List is called a National
Heritage place.
(1) A place has a National Heritage value if and only if the
place meets one of the criteria (the National Heritage criteria)
prescribed by the regulations for the purposes of this section. The
National Heritage value of the place is the place’s heritage
value that causes the place to meet the criterion.
(2) The National Heritage values of a National Heritage
place are the National Heritage values of the place included in the National
Heritage List for the place.
(3) The regulations must prescribe criteria for:
(a) natural heritage values of places; and
(b) indigenous heritage values of places; and
(c) historic heritage values of places.
The regulations may prescribe criteria for other heritage values of
places.
(1) A person may, in accordance with the regulations (if any), nominate to
the Minister a place for inclusion in the National Heritage List.
(2) The Minister must give the Chair of the Australian Heritage Council a
written request for the Council to assess under section 324G whether the
place meets any of the National Heritage criteria, unless the Minister rejects
the nomination under this section.
(3) If the Minister must give the Chair a request, he or she must give the
request within 10 business days after receiving the nomination,
unless:
(a) the place is wholly or partly outside the Australian jurisdiction;
or
(b) the Minister includes the place in the National Heritage List under
section 324F (emergency listing) within that period.
(4) The Minister may:
(a) ask the person who nominated the place to provide additional
information about the place within a specified period; and
(b) reject the nomination if the information is not provided within that
period.
The period specified must be reasonable.
(5) If the Minister asks the person for additional information, the period
in subsection (3) stops running on the day the Minister asks for that
information until the day after that information is provided.
(6) The Minister may also reject the nomination if satisfied that it is
vexatious, frivolous or not made in good faith.
(7) If the Minister rejects the nomination under this section, he or she
must, as soon as reasonably practicable:
(a) advise the person of that fact; and
(b) give the person written reasons for the rejection.
(8) To avoid doubt, a member of the Australian Heritage Council may make a
nomination in accordance with this section on behalf of the Council. The Council
may undertake research and investigations necessary for the purposes of
nominating places to be included in the National Heritage List.
(9) The Minister may, by publishing a notice in accordance with the
regulations, invite nominations of places within a specified theme.
(1) This section applies (despite subsection 324C(2)) if the Minister
believes that:
(a) a place has or may have one or more National Heritage values;
and
(b) any of those values is under threat.
(2) The Minister may, by instrument published in the Gazette,
include in the National Heritage List the place and the National Heritage values
the Minister believes the place has or may have, whether or not the Minister
has, under this Subdivision, given the Chair of the Australian Heritage Council
a written request for the Council to assess under section 324G whether the
place meets any of the National Heritage criteria.
(3) Within 10 business days after including the place in the National
Heritage List under this section, the Minister must give the Chair of the
Australian Heritage Council a written request for the Council to assess under
section 324G whether the place meets any of the National Heritage
criteria.
(4) However, subsection (3) does not apply if the Minister has
already received from the Australian Heritage Council an assessment under
section 324G whether the place meets any of the National Heritage
criteria.
(5) If the Minister includes the place in the National Heritage List under
this section, he or she must, within a reasonable time:
(a) publish in accordance with the regulations (if any) a copy or summary
of the instrument published in the Gazette; and
(b) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the
place; and
(ii) advise each person identified that the place has been included in the
National Heritage List; and
(c) if the place was nominated by a person—advise the person that
the place has been included in the National Heritage List.
(1) The Minister may give the Chair of the Australian Heritage Council a
written request for the Council to assess whether a place meets any of the
National Heritage criteria, whether or not the place is the subject of a
nomination.
(2) The Australian Heritage Council must give the Minister a written
assessment whether a place meets any of the National Heritage
criteria:
(a) within 12 months after the Minister gives the Chair of the Council
(under this section or section 324E) the request for the assessment;
or
(b) if the place is included in the National Heritage List under
section 324F (emergency listing)—within 40 business days after the
Minister gives the Chair of the Council (under that section) the request for the
assessment.
However, the Minister may extend the period in paragraph (a) or
(b).
(3) The Australian Heritage Council, on its own initiative, may assess
whether a place meets any of the National Heritage criteria, whether or not the
place is the subject of a nomination. If the Council does so, it may give the
assessment to the Minister.
(4) If, in making an assessment, the Australian Heritage Council considers
that a place within the Australian jurisdiction might have one or more National
Heritage values, the Council must:
(a) take all practicable steps:
(i) to identify each person who is an owner or occupier of all or part of
the place; and
(ii) if the Council considers the place might have an indigenous heritage
value—to identify each indigenous person who has rights or interests in
all or part of the place; and
(b) take all practicable steps to advise each person identified that the
Council is assessing whether the place meets any of the National Heritage
criteria; and
(c) give persons advised a reasonable opportunity to comment in writing
whether the place should be included in the National Heritage List.
The Council must give the Minister a copy of the comments with the
assessment.
Note: For indigenous heritage value, see
section 528.
(5) In assessing whether a place meets any of the National Heritage
criteria, the Australian Heritage Council must not consider any matter that does
not relate to the question whether the place meets the National Heritage
criteria.
(1) The Minister must publish, in accordance with the regulations (if
any), a notice inviting comments on the inclusion or proposed inclusion of a
place in the National Heritage List. The notice may specify:
(a) that comments should address particular matters relating to the
inclusion or proposed inclusion of the place in the List; or
(b) that comments are to be given to the Minister in a particular
way.
Note: However, the Minister is not required to publish a
notice in certain circumstances: see subsection (5).
(2) The notice must be published within 20 business days after the day on
which the Minister receives from the Australian Heritage Council an assessment
under section 324G whether the place meets any of the National Heritage
criteria.
(3) The notice must include a statement setting out the National Heritage
criteria the place meets or may meet and must allow the comments to be given to
the Minister within:
(a) 40 business days after the notice is published; or
(b) if the place is included in the National Heritage List under
section 324F (emergency listing)—20 business days after the notice is
published.
(4) The Minister may ask the Australian Heritage Council or a person with
appropriate qualifications or expertise to assess the merits of any comments
that are received by the Minister in accordance with the notice.
(5) The Minister is not required to publish a notice under this section
concerning a place, other than a place included in the National Heritage List
under section 324F (emergency listing), if the Australian Heritage
Council’s assessment under section 324G is that the place does not
meet any of the National Heritage criteria.
(1) Within 60 business days after the end of the period mentioned in
paragraph 324H(3)(a) for a place, except one included in the National Heritage
List under section 324F (emergency listing), the Minister must:
(a) by instrument published in the Gazette, include in the National
Heritage List the place and its National Heritage values specified in the
instrument; or
(b) decide not to include the place in the National Heritage
List.
Note 1: The Minister may only include a place in the
National Heritage List if the Minister is satisfied that the place has one or
more National Heritage values (see subsection 324C(2)).
Note 2: Section 324N deals with how additional National
Heritage values may be included in the National Heritage List for a National
Heritage place.
(2) The time limit in subsection (1) does not apply if the place is
wholly or partly outside the Australian jurisdiction.
(3) If the Minister includes the place in the National Heritage List, he
or she must, within a reasonable time:
(a) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the
place; and
(ii) advise each person identified that the place has been included in the
National Heritage List; and
(b) if the place was nominated by a person—advise the person that
the place has been included in the National Heritage List.
(4) If the Minister decides not to include in the National Heritage List a
place (whether the decision is made after publishing a notice under
section 324H or not), the Minister must, within a reasonable
time:
(a) give written reasons for the decision to anyone who asks for them;
and
(b) if the place was nominated by a person—advise the person of the
decision and give the person written reasons for the decision.
Dealing with an emergency listing
(5) Within 15 business days after the end of the period mentioned in
subsection 324H(3) for a place included in the National Heritage List under
section 324F (emergency listing), the Minister must, by instrument
published in the Gazette:
(a) do one of the following:
(i) state that the place remains in the National Heritage List with its
boundary unaltered;
(ii) alter the boundary of the place described in the National Heritage
List (whether or not the alteration results in an overall increase or decrease
in the extent of the place included in the List);
(iii) remove from the National Heritage List the place and its National
Heritage values; and
(b) if the place is not removed from the National Heritage List under
subparagraph (a)(iii)—do all or any of the following:
(i) state that specified National Heritage values included in the List
under section 324F for the place remain in the List for the
place;
(ii) include in the List for the place specified National Heritage values
of the place that were not included in the List under section 324F for the
place;
(iii) remove from the List for the place specified National Heritage
values that were included in the List under section 324F for the
place.
Note: Subsection (5) applies whether the place was
first included in the National Heritage List under section 324F before or
after the publication of the notice mentioned in subsection
324H(3).
(6) Section 324L does not apply to:
(a) an alteration (under subparagraph (5)(a)(ii) of this section) of
the boundary of a place included in the National Heritage List so as to exclude
part of the place (as previously included) from the description of the place in
the List (whether or not the alteration results in an overall increase or
decrease in the extent of the place included in the List); or
(b) the removal of a place and its National Heritage values under
subparagraph (5)(a)(iii) of this section; or
(c) the removal of a National Heritage value of a place under
subparagraph (5)(b)(iii) of this section.
(7) If, under subsection (5), the Minister removes from the National
Heritage List a place or a National Heritage value of a place, or alters the
boundary of a place included in the List, the Minister must, within a reasonable
time:
(a) give written reasons for the removal or alteration to:
(i) each person identified by the Minister as an owner or occupier of all
or part of the place; and
(ii) anyone else who asks the Minister for them; and
(b) if the place was included in the List following a nomination of
it—advise the person who made the nomination of the removal or alteration
and give the person written reasons for it.
General requirements
(8) Before acting under subsection (1) or (5), the Minister must
consider:
(a) the Australian Heritage Council’s assessment whether the place
meets any of the National Heritage criteria; and
(b) the comments (if any), a copy of which was given to the Minister by
the Council under subsection 324G(4) with the assessment; and
(c) the comments (if any) received in accordance with the notice published
under section 324H in relation to the place; and
(d) the assessment (if any) requested under subsection 324H(4) of the
merits of the comments received in accordance with the notice published under
section 324H in relation to the place.
(9) The Minister must publish in accordance with the regulations (if any)
a copy or summary of an instrument published in the Gazette under this
section.
(1) This section is about compliance with a provision of this Subdivision
that is before this section and that requires or permits an act to be done in
relation to the place identified by express or implied reference to an earlier
provision of this Subdivision.
(2) It is sufficient compliance with the provision if the act is done in
relation to a place whose boundary overlaps the boundary of the place identified
by reference to the earlier provision.
(3) This section does not affect the validity of the act so far as that
depends on something other than the act being done in relation to the
place.
(1) The Minister may remove all or part of a place from the National
Heritage List only if the Minister is satisfied that:
(a) ignoring subsection 324D(2), the place no longer has any National
Heritage values or the part no longer contributes to any of the National
Heritage values of the place; or
(b) it is necessary in the interests of Australia’s defence or
security to do so.
Note: A place or part of a place may also be removed from
the National Heritage List under subsection 324J(5).
(2) The Minister may remove one or more National Heritage values included
in the National Heritage List for a National Heritage place only if the Minister
is satisfied that:
(a) ignoring subsection 324D(2), the place no longer has the National
Heritage value or values; or
(b) it is necessary in the interests of Australia’s defence or
security to do so.
(3) The Minister may remove all or part of a place, or a National Heritage
value of a place, only by instrument:
(a) published in the Gazette; and
(b) including a statement of the reasons for the removal.
Note: The Minister must first obtain and consider the advice
of the Australian Heritage Council (see section 324M).
(4) The instrument must deal with only one of the following kinds of
removal:
(a) removal (removal for loss of value) of a place, part or
National Heritage value because of paragraph (1)(a) or (2)(a);
(b) removal of a place, part or National Heritage value because of
paragraph (1)(b) or (2)(b).
If the instrument purports to deal with both kinds, it has no effect so far
as it deals with a removal for loss of value.
(5) If the instrument deals only with removal for loss of value, the
instrument:
(a) is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901; and
(b) takes effect (despite section 48 of that Act) on the first day on
which it is no longer liable to be disallowed, or to be taken to have been
disallowed, under that section as it applies in relation to the instrument
because of section 46A of that Act.
(6) The Minister must publish in accordance with the regulations (if any)
a copy or summary of the instrument.
(1) Before the Minister removes from the National Heritage List under
section 324L all or part of a place or one or more of a place’s
National Heritage values in a removal for loss of value, he or she must give the
Chair of the Australian Heritage Council a written request for the Council to
give the Minister advice on the proposed removal.
(2) The Australian Heritage Council must give the advice to the Minister
within the period specified by the Minister.
(3) The Minister must consider the advice if he or she receives it by the
end of that period.
(4) In preparing the advice, the Australian Heritage Council must not
consider any matter that does not relate to the National Heritage values of the
place concerned.
(5) The Minister must:
(a) decide whether to remove from the National Heritage List the place or
part concerned, or the National Heritage value or values of the place concerned;
and
(b) if the Minister decides to remove the place or part, or the National
Heritage value or values of the place—ensure that an instrument removing
the place, part or National Heritage value or values is published in the
Gazette under subsection 324L(3);
within 60 business days after the earlier of the advice being received by
the Minister and the specified period for giving advice to the Minister
ending.
(6) However, the time limit in subsection (5) does not apply if the
place is wholly or partly outside the Australian jurisdiction.
(1) Subsection (2) has effect for the purposes of including in the
National Heritage List for a National Heritage place one or more National
Heritage values of the place that were not previously included in the List for
the place.
(2) Sections 324E, 324F, 324G, 324H and 324J apply as if neither of
the following had happened before the application of any of those sections
because of this section:
(a) the Minister receiving from the Australian Heritage Council an
assessment whether the place meets the National Heritage criteria;
(b) the inclusion of the place in the National Heritage List.
(3) However, this section does not affect the inclusion in the National
Heritage List of the place or the National Heritage values that were included in
the List for the place before the application of this section. In particular,
subsection 324J(5) in its application because of this section does not allow the
Minister to:
(a) remove from the List the place or any of its National Heritage values
that were included in the List for the place before the application of
section 324F because of this section; or
(b) alter the boundary of the place as included in the List before the
application of section 324F because of this section so as to exclude from
the description of the place in the List part of the place as so
included.
The Minister must ensure that:
(a) up-to-date copies of the National Heritage List are available for free
to the public on request; and
(b) an up-to-date copy of the National Heritage List is available on the
Internet.
Note: The copies of the National Heritage List made publicly
available may not contain certain information kept confidential under
section 324Q.
(1) This section applies if the Minister considers that the heritage
values of a place could be significantly damaged by the disclosure of some or
all of the following information, or by the presence or actions of persons if
some or all of the following information were disclosed publicly:
(a) the place’s precise location;
(b) the place’s heritage values;
(c) any other information about the place.
(2) It is sufficient compliance with this Act if only a general
description of the place, its location or its National Heritage values is
included in:
(a) the National Heritage List as made publicly available; or
(b) an instrument or other document created for the purposes of this
Act.
(1) A member of the Australian Heritage Council has a duty not to disclose
the following to a person other than the Minister, an employee in the Department
whose duties relate to the Council or another member of the Council:
(a) an assessment under section 324G whether a place meets any of the
National Heritage criteria, any information relating to the assessment or any
information about the nomination (if any) that led to the making of the
assessment;
(b) advice under section 324M concerning a place or any information
relating to the advice.
(2) However:
(a) the duty not to disclose a thing described in paragraph (1)(a) in
relation to a place does not exist after:
(i) publication in the Gazette of an instrument under
section 324J relating to the place; or
(ii) if the Minister is required by section 324J to do something in
relation to the place by instrument published in the Gazette within a
period specified in subsection 324J(1) or (5) but does not—the end of that
period; and
(b) the duty not to disclose a thing described in paragraph (1)(b) in
relation to a place does not exist after:
(i) publication in the Gazette of an instrument under
section 324L relating to the place; or
(ii) if the Minister is required by section 324M to do something in
relation to the place by instrument published in the Gazette within the
period specified in subsection 324M(5) but does not—the end of that
period.
(3) After a member of the Australian Heritage Council has ceased under
subsection (2) to have a duty not to disclose:
(a) an assessment under section 324G whether a place meets the
National Heritage criteria; or
(b) advice under section 324M concerning a place;
the member must give a copy of the assessment or advice to anyone who asks
for it.
(4) If:
(a) a member of the Australian Heritage Council proposes to give a person
under subsection (3) a copy of an assessment or advice relating to a place;
and
(b) the member is aware that, under section 324Q, it would be
sufficient compliance with this Act if the copy included only a general
description of the place, its location or its National Heritage
values;
the member must take reasonable steps to ensure that the copy given to the
person does not include a more detailed description than is necessary for
sufficient compliance with this Act under that section.
(1) The Minister must make a written plan to protect and manage the
National Heritage values of each National Heritage place:
(a) that is entirely within one or more Commonwealth areas; or
(b) that is outside the Australian jurisdiction and is entirely owned or
controlled by a Commonwealth agency.
The Minister must do so as soon as practicable after the first time the
place is:
(c) included in the National Heritage List; or
(d) entirely within one or more Commonwealth areas; or
(e) entirely owned or controlled by a Commonwealth agency.
Note: However, section 324T precludes the Minister from
making plans for managing certain places.
(2) The Minister may, in writing, amend a plan or revoke and replace a
plan.
(3) The Minister must give notice, in accordance with the regulations, if
the Minister:
(a) makes a plan for a National Heritage place; or
(b) amends such a plan; or
(c) revokes and replaces such a plan.
(4) A plan must:
(a) address the matters prescribed by the regulations; and
(b) not be inconsistent with the National Heritage management principles
(see Subdivision E).
(5) If the National Heritage management principles change so that a plan
(the earlier plan) is inconsistent with them, the Minister must as
soon as practicable make a written instrument:
(a) amending the earlier plan to make it consistent with the principles;
or
(b) revoking and replacing the earlier plan.
(6) Before making, amending or revoking and replacing a plan, the Minister
must seek, and consider, in accordance with the regulations, comments from
anyone about the matters to be addressed by the proposed plan or
amendment.
(1) Despite section 324S, the Minister must not make a plan for
managing so much of a National Heritage place as is in a Commonwealth reserve
and covered by another plan under this Act.
(2) Despite section 324S, the Minister must not make a plan for
managing so much of a National Heritage place as is in the Territory of Heard
Island and McDonald Islands and covered by a plan in operation under the
Environment Protection and Management Ordinance 1987 of that
Territory.
The Commonwealth or a Commonwealth agency must not contravene a plan
under section 324S for managing a National Heritage place.
To avoid doubt, a plan for managing a National Heritage place may be in
the same document as:
(a) one or more other plans for managing National Heritage places;
or
(b) one or more other plans that this Act or another law of the
Commonwealth requires or permits to be prepared.
(1) At least once in every 5 year period after a plan for managing a
National Heritage place is made under section 324S, the Minister must cause
a review of the plan to be carried out.
(2) The review must assess whether the plan is consistent with the
National Heritage management principles in force at the time.
(1) This section applies to a National Heritage place that is not entirely
within one or more Commonwealth areas and is:
(a) in a State; or
(b) in a self-governing Territory; or
(c) on, over or under the seabed vested in a State by the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by the Coastal
Waters (Northern Territory Title) Act 1980.
(2) The Commonwealth must use its best endeavours to ensure a plan for
managing the place, that is not inconsistent with the National Heritage
management principles, is prepared and implemented in co-operation with the
State or Territory.
(3) The Commonwealth, and each Commonwealth agency, must take all
reasonable steps to ensure it exercises its powers and performs its functions in
relation to the place in a way that is not inconsistent with:
(a) the National Heritage management principles; or
(b) the plan for managing the place, if one has been prepared under
subsection (2).
(1) The regulations must prescribe principles for managing National
Heritage places. The principles prescribed are the National Heritage
management principles.
(2) The regulations may prescribe obligations to implement or give effect
to the National Heritage management principles if the obligations relate
to:
(a) a constitutional corporation, the Commonwealth or a Commonwealth
agency; or
(b) trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and Territory; or
(iv) between 2 Territories; or
(c) all or any of the following:
(i) a Commonwealth area;
(ii) a Territory;
(iii) a place outside the Australian jurisdiction that is owned or
controlled by a Commonwealth agency; or
(d) the National Heritage values, to the extent that they are indigenous
heritage values, of a National Heritage place; or
(e) the National Heritage values of a National Heritage place in an area
in respect of which Australia has obligations under Article 8 of the
Biodiversity Convention.
(3) A person must comply with the regulations to the extent that they
impose obligations on the person.
(4) Paragraph (2)(e) applies only to a prescribed obligation that is
appropriate and adapted to give effect to Australia’s obligations under
Article 8 of the Biodiversity Convention.
(1) A Commonwealth agency that owns or controls a place that has, or might
have, one or more National Heritage values must take all reasonable steps to
assist the Minister and the Australian Heritage Council in the identification
and assessment of the place’s National Heritage values.
(2) A Commonwealth agency that owns or controls all or part of a National
Heritage place must take all reasonable steps to assist the Minister to make a
plan under section 324S for the place.
(1) This section applies if a Commonwealth agency executes a contract for
the sale or lease to someone else of a Commonwealth area in the Australian
jurisdiction that is or includes all or part of a National Heritage place. It
does not matter whether the agency executes the contract for the Commonwealth or
on its own behalf.
(2) The Commonwealth agency must ensure that the contract includes a
covenant the effect of which is to protect the National Heritage values of the
place, unless the agency is satisfied that:
(a) having regard to other means of protecting those values, including
such a covenant in the contract is unnecessary to protect them or is
unreasonable; or
(b) including such a covenant in the contract is impracticable.
(3) The Commonwealth agency must inform the Minister before executing the
contract if:
(a) such a covenant:
(i) would not, or could not be made to, bind the successors in title of
the buyer or lessee; or
(ii) could be insufficient to ensure the ongoing protection of the
National Heritage values of the place; or
(b) the agency is satisfied as described in subsection (2).
The information must include written reasons why paragraph (a) applies
or why the agency is satisfied as described in subsection (2).
(4) If the Minister is informed of a matter in paragraph (3)(a) or
that the Commonwealth agency is satisfied that it is unreasonable or
impracticable to include such a covenant in the contract, the Minister
must:
(a) take all reasonable measures to enter into a conservation agreement
with the prospective buyer or lessee for the protection and conservation of the
National Heritage values of the place; or
(b) advise the agency about measures to ensure the ongoing protection of
the National Heritage values of the place.
(5) If the Minister is informed that the Commonwealth agency is satisfied
that it is unnecessary to include such a covenant in the contract, the Minister
may advise the agency about measures to ensure the ongoing protection of the
National Heritage values of the place.
(6) If the Minister advises the Commonwealth agency under this section
about measures to ensure the ongoing protection of the National Heritage values
of the place, the agency must take all reasonable steps to ensure that the
measures are taken.
(1) The Commonwealth may give financial or other assistance for the
identification, promotion, protection or conservation of a National Heritage
place to:
(a) a State or self-governing Territory in which the place or part of the
place is located; or
(b) any other person.
(2) The Commonwealth may give the assistance subject to
conditions.
(1) At least once in every 5 year period after the National Heritage List
is established, the Minister must ensure that:
(a) a review of the National Heritage List is carried out; and
(b) a report of that review is tabled in each House of the
Parliament.
(2) The report must include details of:
(a) the number of places included in the National Heritage List;
and
(b) any significant damage or threat to the National Heritage values of
those places; and
(c) how many plans under Subdivisions C and D for managing National
Heritage places have been made, or are being prepared, and how effectively the
plans that have been made are operating; and
(d) the operation of any conservation agreements under Part 14 that
affect National Heritage places; and
(e) any other matters that the Minister considers relevant.
32 After Division 3 of
Part 15
Insert:
The following is a simplified outline of this Division:
The Minister may only include a place in the Commonwealth Heritage List if
the place is in a Commonwealth area, or is owned or leased by the Commonwealth
or a Commonwealth agency outside the Australian jurisdiction, and the Minister
is satisfied that the place has one or more Commonwealth Heritage
values.
The Minister must ask the Australian Heritage Council for an assessment of
the place’s Commonwealth Heritage values and invite public comments on the
proposed inclusion of the place in the Commonwealth Heritage List.
Commonwealth agencies must make plans to protect and manage the
Commonwealth Heritage values of Commonwealth Heritage places. The Commonwealth
and Commonwealth agencies must not contravene those plans.
Commonwealth agencies also have other obligations.
The Commonwealth can provide assistance for the identification, promotion,
protection or conservation of Commonwealth Heritage places.
This Division extends to places, acts and omissions outside the
Australian jurisdiction, except so far as the contrary intention
appears.
(1) The Minister must keep a written record of places and their heritage
values in accordance with this Subdivision. The record is called the
Commonwealth Heritage List.
Note: Later provisions of this Subdivision explain what
places and heritage values are included in the Commonwealth Heritage
List.
(2) A place may be included in the Commonwealth Heritage List only if the
Minister is satisfied that the place:
(a) either:
(i) is entirely within a Commonwealth area; or
(ii) is outside the Australian jurisdiction and is owned or leased by the
Commonwealth or a Commonwealth agency; and
(b) has one or more Commonwealth Heritage values.
A place that is included in the Commonwealth Heritage List is called a
Commonwealth Heritage place.
(1) A place has a Commonwealth Heritage value if and only if
the place meets one of the criteria (the Commonwealth Heritage
criteria) prescribed by the regulations for the purposes of this
section. The Commonwealth Heritage value of the place is the
place’s heritage value that causes the place to meet the
criterion.
(2) The Commonwealth Heritage values of a Commonwealth
Heritage place are the Commonwealth Heritage values of the place included in the
Commonwealth Heritage List for the place.
(3) The regulations must prescribe criteria for:
(a) natural heritage values of places; and
(b) indigenous heritage values of places; and
(c) historic heritage values of places.
The regulations may prescribe criteria for other heritage values of
places.
(1) A person may, in accordance with the regulations (if any), nominate to
the Minister a place for inclusion in the Commonwealth Heritage List.
(2) The Minister must give the Chair of the Australian Heritage Council a
written request for the Council to assess under section 341G whether the
place meets any of the Commonwealth Heritage criteria, unless the Minister
rejects the nomination under this section.
(3) If the Minister must give the Chair a request, he or she must give the
request within 10 business days after receiving the nomination,
unless:
(a) the place is wholly or partly outside the Australian jurisdiction;
or
(b) the Minister includes the place in the Commonwealth Heritage List
under section 341F (emergency listing) within that period.
(4) The Minister may:
(a) ask the person who nominated the place to provide additional
information about the place within a specified period; and
(b) reject the nomination if the information is not provided within that
period.
The period specified must be reasonable.
(5) If the Minister asks the person for additional information, the period
in subsection (3) stops running on the day the Minister asks for that
information until the day after that information is provided.
(6) The Minister may also reject the nomination if satisfied that it is
vexatious, frivolous or not made in good faith.
(7) If the Minister rejects the nomination under this section, he or she
must, as soon as reasonably practicable:
(a) advise the person of that fact; and
(b) give the person written reasons for the rejection.
(8) To avoid doubt, a member of the Australian Heritage Council may make a
nomination in accordance with this section on behalf of the Council. The Council
may undertake research and investigations necessary for the purposes of
nominating places to be included in the Commonwealth Heritage List.
(1) This section applies (despite subsection 341C(2)) if the Minister
believes that:
(a) a place either:
(i) is entirely within a Commonwealth area; or
(ii) is outside the Australian jurisdiction and is owned or leased by the
Commonwealth or a Commonwealth agency; and
(b) the place has or may have one or more Commonwealth Heritage values;
and
(c) any of those values is under threat.
(2) The Minister may, by instrument published in the Gazette,
include in the Commonwealth Heritage List the place and the Commonwealth
Heritage values the Minister believes the place has or may have, whether or not
the Minister has, under this Subdivision, given the Chair of the Australian
Heritage Council a written request for the Council to assess under
section 341G whether the place meets any of the Commonwealth Heritage
criteria.
(3) Within 10 business days after including the place in the Commonwealth
Heritage List under this section, the Minister must give the Chair of the
Australian Heritage Council a written request for the Council to assess under
section 341G whether the place meets any of the Commonwealth Heritage
criteria.
(4) However, subsection (3) does not apply if the Minister has
already received from the Australian Heritage Council an assessment under
section 341G whether the place meets any of the Commonwealth Heritage
criteria.
(5) If the Minister includes the place in the Commonwealth Heritage List
under this section, he or she must, within a reasonable time:
(a) publish in accordance with the regulations (if any) a copy or summary
of the instrument published in the Gazette; and
(b) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the
place; and
(ii) advise each person identified that the place has been included in the
Commonwealth Heritage List; and
(c) if the place was nominated by a person—advise the person that
the place has been included in the Commonwealth Heritage List.
(1) The Minister may give the Chair of the Australian Heritage Council a
written request for the Council to assess whether a place meets any of the
Commonwealth Heritage criteria, whether or not the place is the subject of a
nomination.
(2) The Australian Heritage Council must give the Minister a written
assessment whether a place meets any of the Commonwealth Heritage
criteria:
(a) within 12 months after the Minister gives the Chair of the Council
(under this section or section 341E) the request for the assessment;
or
(b) if the place is included in the Commonwealth Heritage List under
section 341F (emergency listing)—within 40 business days after the
Minister gives the Chair of the Council (under that section) the request for the
assessment.
However, the Minister may extend the period in paragraph (a) or
(b).
(3) The Australian Heritage Council, on its own initiative, may assess
whether a place meets any of the Commonwealth Heritage criteria, whether or not
the place is the subject of a nomination. If the Council does so, it may give
the assessment to the Minister.
(4) If, in making an assessment, the Australian Heritage Council considers
that a place within the Australian jurisdiction might have one or more
Commonwealth Heritage values, the Council must:
(a) take all practicable steps:
(i) to identify each person who is an owner or occupier of all or part of
the place; and
(ii) if the Council considers the place might have an indigenous heritage
value—to identify each indigenous person who has rights or interests in
all or part of the place; and
(b) take all practicable steps to advise each person identified that the
Council is assessing whether the place meets any of the Commonwealth Heritage
criteria; and
(c) give persons advised a reasonable opportunity to comment in writing
whether the place should be included in the Commonwealth Heritage
List.
The Council must give the Minister a copy of the comments with the
assessment.
Note: For indigenous heritage value, see
section 528.
(5) In assessing whether a place meets any of the Commonwealth Heritage
criteria, the Australian Heritage Council must not consider any matter that does
not relate to the question whether the place meets the Commonwealth Heritage
criteria.
(1) The Minister must publish, in accordance with the regulations (if
any), a notice inviting comments on the inclusion or proposed inclusion of a
place in the Commonwealth Heritage List. The notice may specify:
(a) that comments should address particular matters relating to the
inclusion or proposed inclusion of the place in the List; or
(b) that comments are to be given to the Minister in a particular
way.
Note: However, the Minister is not required to publish a
notice in certain circumstances: see subsection (5).
(2) The notice must be published within 20 business days after the day on
which the Minister receives from the Australian Heritage Council an assessment
under section 341G whether the place meets any of the Commonwealth Heritage
criteria.
(3) The notice must include a statement setting out the Commonwealth
Heritage criteria the place meets or may meet and must allow the comments to be
given to the Minister within:
(a) 40 business days after the notice is published; or
(b) if the place is included in the Commonwealth Heritage List under
section 341F (emergency listing)—20 business days after the notice is
published.
(4) The Minister may ask the Australian Heritage Council or a person with
appropriate qualifications or expertise to assess the merits of any comments
that are received by the Minister in accordance with the notice.
(5) The Minister is not required to publish a notice under this section
concerning a place, other than a place included in the Commonwealth Heritage
List under section 341F (emergency listing), if the Australian Heritage
Council’s assessment under section 341G is that the place does not
meet any of the Commonwealth Heritage criteria.
(1) Within 60 business days after the end of the period mentioned in
paragraph 341H(3)(a) for a place, except one included in the Commonwealth
Heritage List under section 341F (emergency listing), the Minister
must:
(a) by instrument published in the Gazette, include in the
Commonwealth Heritage List the place and its Commonwealth Heritage values
specified in the instrument; or
(b) decide not to include the place in the Commonwealth Heritage
List.
Note 1: The Minister may only include a place in the
Commonwealth Heritage List if the Minister is satisfied that the
place:
(a) is entirely within a Commonwealth area or is both
outside the Australian jurisdiction and owned or leased by the Commonwealth or a
Commonwealth agency; and
(b) has one or more Commonwealth Heritage
values.
See subsection 341C(2).
Note 2: Section 341N deals with how additional
Commonwealth Heritage values may be included in the Commonwealth Heritage List
for a Commonwealth Heritage place.
(2) The time limit in subsection (1) does not apply if the place is
wholly or partly outside the Australian jurisdiction.
(3) If the Minister includes the place in the Commonwealth Heritage List,
he or she must, within a reasonable time:
(a) take all practicable steps to:
(i) identify each person who is an owner or occupier of all or part of the
place; and
(ii) advise each person identified that the place has been included in the
Commonwealth Heritage List; and
(b) if the place was nominated by a person—advise the person that
the place has been included in the Commonwealth Heritage List.
(4) If the Minister decides not to include in the Commonwealth Heritage
List a place (whether the decision is made after publishing a notice under
section 341H or not), the Minister must, within a reasonable
time:
(a) give written reasons for the decision to anyone who asks for them;
and
(b) if the place was nominated by a person—advise the person of the
decision and give the person written reasons for the decision.
Dealing with an emergency listing
(5) Within 15 business days after the end of the period mentioned in
subsection 341H(3) for a place included in the Commonwealth Heritage List under
section 341F (emergency listing), the Minister must, by instrument
published in the Gazette:
(a) do one of the following:
(i) state that the place remains in the Commonwealth Heritage List with
its boundary unaltered;
(ii) alter the boundary of the place described in the Commonwealth
Heritage List (whether or not the alteration results in an overall increase or
decrease in the extent of the place included in the List);
(iii) remove from the Commonwealth Heritage List the place and its
Commonwealth Heritage values; and
(b) if the place is not removed from the Commonwealth Heritage List under
subparagraph (a)(iii)—do all or any of the following:
(i) state that specified Commonwealth Heritage values included in the List
under section 341F for the place remain in the List for the
place;
(ii) include in the List for the place specified Commonwealth Heritage
values of the place that were not included in the List under section 341F
for the place;
(iii) remove from the List for the place specified Commonwealth Heritage
values that were included in the List under section 341F for the
place.
Note: Subsection (5) applies whether the place was
first included in the Commonwealth Heritage List under section 341F before
or after the publication of the notice mentioned in subsection
341H(3).
(6) Section 341L does not apply to:
(a) an alteration (under subparagraph (5)(a)(ii) of this section) of
the boundary of a place included in the Commonwealth Heritage List so as to
exclude part of the place (as previously included) from the description of the
place in the List (whether or not the alteration results in an overall increase
or decrease in the extent of the place included in the List); or
(b) the removal of a place and its Commonwealth Heritage values under
subparagraph (5)(a)(iii) of this section; or
(c) the removal of a Commonwealth Heritage value of a place under
subparagraph (5)(b)(iii) of this section.
(7) If, under subsection (5), the Minister removes from the
Commonwealth Heritage List a place or a Commonwealth Heritage value of a place,
or alters the boundary of a place included in the List, the Minister must,
within a reasonable time:
(a) give written reasons for the removal or alteration to:
(i) each person identified by the Minister as an owner or occupier of all
or part of the place; and
(ii) anyone else who asks the Minister for them; and
(b) if the place was included in the List following a nomination of
it—advise the person who made the nomination of the removal or alteration
and give the person written reasons for it.
General requirements
(8) Before acting under subsection (1) or (5), the Minister must
consider:
(a) the Australian Heritage Council’s assessment whether the place
meets any of the Commonwealth Heritage criteria; and
(b) the comments (if any), a copy of which was given to the Minister by
the Council under subsection 341G(4) with the assessment; and
(c) the comments (if any) received in accordance with the notice published
under section 341H in relation to the place; and
(d) the assessment (if any) requested under subsection 341H(4) of the
merits of the comments received in accordance with the notice published under
section 341H in relation to the place.
(9) The Minister must publish in accordance with the regulations (if any)
a copy or summary of an instrument published in the Gazette under this
section.
(1) This section is about compliance with a provision of this Subdivision
that is before this section and that requires or permits an act to be done in
relation to the place identified by express or implied reference to an earlier
provision of this Subdivision.
(2) It is sufficient compliance with the provision if the act is done in
relation to a place whose boundary overlaps the boundary of the place identified
by reference to the earlier provision.
(3) This section does not affect the validity of the act so far as that
depends on something other than the act being done in relation to the
place.
(1) The Minister must remove all or part of a place from the Commonwealth
Heritage List as soon as practicable after the Minister becomes aware
that:
(a) the place or part is no longer in a Commonwealth area; or
(b) the place or part is no longer owned or leased by the Commonwealth or
a Commonwealth agency, if the place or part is outside the Australian
jurisdiction.
(2) The Minister may remove all or part of a place from the Commonwealth
Heritage List only if the Minister is satisfied that:
(a) ignoring subsection 341D(2), the place no longer has any Commonwealth
Heritage values or the part no longer contributes to any of the Commonwealth
Heritage values of the place; or
(b) it is necessary in the interests of Australia’s defence or
security to do so.
Note: A place or part of a place may also be removed from
the Commonwealth Heritage List under subsection 341J(5).
(3) The Minister may remove one or more Commonwealth Heritage values
included in the Commonwealth Heritage List for a Commonwealth Heritage place
only if the Minister is satisfied that:
(a) ignoring subsection 341D(2), the place no longer has the Commonwealth
Heritage value or values; or
(b) it is necessary in the interests of Australia’s defence or
security to do so.
(4) The Minister can remove all or part of a place, or a Commonwealth
Heritage value of a place, only by instrument:
(a) published in the Gazette; and
(b) including a statement of the reasons for the removal.
Note: The Minister must first obtain and consider the advice
of the Australian Heritage Council (see section 341M).
(5) The instrument must deal with only one of the following kinds of
removal:
(a) removal (removal for loss of value) of a place, part or
Commonwealth Heritage value because of paragraph (2)(a) or
(3)(a);
(b) removal of a place, part or Commonwealth Heritage value because of
subsection (1) or paragraph (2)(b) or (3)(b).
If the instrument purports to deal with both kinds, it has no effect so far
as it deals with a removal for loss of value.
(6) If the instrument deals only with removal for loss of value, the
instrument:
(a) is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901; and
(b) takes effect (despite section 48 of that Act) on the first day on
which it is no longer liable to be disallowed, or to be taken to have been
disallowed, under that section as it applies in relation to the instrument
because of section 46A of that Act.
(7) The Minister must publish in accordance with the regulations (if any)
a copy or summary of the instrument.
(1) Before the Minister removes from the Commonwealth Heritage List under
section 341L all or part of a place or one or more of a place’s
Commonwealth Heritage values in a removal for loss of value, he or she must give
the Chair of the Australian Heritage Council a written request for the Council
to give the Minister advice on the proposed removal.
(2) The Australian Heritage Council must give the advice to the Minister
within the period specified by the Minister.
(3) The Minister must consider the advice if he or she receives it by the
end of that period.
(4) In preparing the advice, the Australian Heritage Council must not
consider any matter that does not relate to the Commonwealth Heritage values of
the place concerned.
(5) The Minister must:
(a) decide whether to remove from the Commonwealth Heritage List the place
or part concerned, or the Commonwealth Heritage value or values of the place
concerned; and
(b) if the Minister decides to remove the place or part, or the
Commonwealth Heritage value or values of the place—ensure that an
instrument removing the place, part or Commonwealth Heritage value or values is
published in the Gazette under subsection 341L(4);
within 60 business days after the earlier of the advice being received by
the Minister and the specified period for giving advice to the Minister
ending.
(6) However, the time limit in subsection (5) does not apply if the
place is wholly or partly outside the Australian jurisdiction.
(1) Subsection (2) has effect for the purposes of including in the
Commonwealth Heritage List for a Commonwealth Heritage place one or more
Commonwealth Heritage values of the place that were not previously included in
the List for the place.
(2) Sections 341E, 341F, 341G, 341H and 341J apply as if neither of
the following had happened before the application of any of those sections
because of this section:
(a) the Minister receiving from the Australian Heritage Council an
assessment whether the place meets the Commonwealth Heritage criteria;
(b) the inclusion of the place in the Commonwealth Heritage
List.
(3) However, this section does not affect the inclusion in the
Commonwealth Heritage List of the place or the Commonwealth Heritage values that
were included in the List for the place before the application of this section.
In particular, subsection 341J(5) in its application because of this section
does not allow the Minister to:
(a) remove from the List the place or any of its Commonwealth Heritage
values that were included in the List for the place before the application of
section 341F because of this section; or
(b) alter the boundary of the place as included in the List before the
application of section 341F because of this section so as to exclude from
the description of the place in the List part of the place as so
included.
The Minister must ensure that:
(a) up-to-date copies of the Commonwealth Heritage List are available for
free to the public on request; and
(b) an up-to-date copy of the Commonwealth Heritage List is available on
the Internet.
Note: The copies of the Commonwealth Heritage List made
publicly available may not contain certain information kept confidential under
section 341Q.
(1) This section applies if the Minister considers that the heritage
values of a place could be significantly damaged by the disclosure of some or
all of the following information, or by the presence or actions of persons if
some or all of the following information were disclosed publicly:
(a) the place’s precise location;
(b) the place’s heritage values;
(c) any other information about the place.
(2) It is sufficient compliance with this Act if only a general
description of the place, its location or its Commonwealth Heritage values is
included in:
(a) the Commonwealth Heritage List as made publicly available;
or
(b) an instrument or other document created for the purposes of this
Act.
(1) A member of the Australian Heritage Council has a duty not to disclose
the following to a person other than the Minister, an employee in the Department
whose duties relate to the Council or another member of the Council:
(a) an assessment under section 341G whether a place meets any of the
Commonwealth Heritage criteria, any information relating to the assessment or
any information about the nomination (if any) that led to the making of the
assessment;
(b) advice under section 341M concerning a place or any information
relating to the advice.
(2) However:
(a) the duty not to disclose a thing described in paragraph (1)(a) in
relation to a place does not exist after:
(i) publication in the Gazette of an instrument under
section 341J relating to the place; or
(ii) if the Minister is required by section 341J to do something in
relation to the place by instrument published in the Gazette within a
period specified in subsection 341J(1) or (5) but does not—the end of that
period; and
(b) the duty not to disclose a thing described in paragraph (1)(b) in
relation to a place does not exist after:
(i) publication in the Gazette of an instrument under
section 341L relating to the place; or
(ii) if the Minister is required by section 341M to do something in
relation to the place by instrument published in the Gazette within the
period specified in subsection 341M(5) but does not—the end of that
period.
(3) After a member of the Australian Heritage Council has ceased under
subsection (2) to have a duty not to disclose:
(a) an assessment under section 341G whether a place meets the
Commonwealth Heritage criteria; or
(b) advice under section 341M concerning a place;
the member must give a copy of the assessment or advice to anyone who asks
for it.
(4) If:
(a) a member of the Australian Heritage Council proposes to give a person
under subsection (3) a copy of an assessment or advice relating to a place;
and
(b) the member is aware that, under section 341Q, it would be
sufficient compliance with this Act if the copy included only a general
description of the place, its location or its Commonwealth Heritage
values;
the member must take reasonable steps to ensure that the copy given to the
person does not include a more detailed description than is necessary for
sufficient compliance with this Act under that section.
(1) A Commonwealth agency must make a written plan to protect and manage
the Commonwealth Heritage values of a Commonwealth Heritage place it owns or
controls. The agency must do so within the period mentioned either:
(a) at the time the agency starts owning or controlling the place, in the
agency’s heritage strategy under section 341ZA; or
(b) after that time, in the agency’s first such strategy.
Note: However, a Commonwealth agency must not make plans for
managing certain places (see section 341U).
(2) The Commonwealth agency may, in writing, amend the plan or revoke and
replace the plan.
(3) A Commonwealth agency must give notice, in accordance with the
regulations, if the agency:
(a) makes a plan for a Commonwealth Heritage place; or
(b) amends such a plan; or
(c) revokes and replaces such a plan.
Note: Subdivision E imposes other obligations on
Commonwealth agencies.
(4) A plan must:
(a) address the matters prescribed by the regulations; and
(b) not be inconsistent with the Commonwealth Heritage management
principles (see Subdivision D).
(5) If the Commonwealth Heritage management principles change so that a
plan (the earlier plan) is inconsistent with them, the agency
concerned must as soon as practicable make a written instrument:
(a) amending the earlier plan to make it consistent with the principles;
or
(b) revoking and replacing the earlier plan.
(6) Before making, amending or revoking and replacing a plan, the agency
concerned must:
(a) ask the Minister for advice on the proposed plan or amendment and must
take account of any such advice received from the Minister; and
(b) seek, and consider, in accordance with the regulations, comments from
anyone about the matters to be addressed by the proposed plan or
amendment.
(7) The Minister must consult with the Australian Heritage Council in
preparing an advice for the purposes of this section.
(1) A Commonwealth agency that makes a plan for managing a Commonwealth
Heritage place may ask the Minister to endorse the plan.
Note: An agency that has a plan endorsed under this section
is not required to ask for advice under section 341ZD about taking certain
actions.
(2) The Minister:
(a) may only endorse a plan that the Minister is satisfied provides for
the conservation of the Commonwealth Heritage values of the place concerned;
and
(b) must not endorse a plan that the Minister considers is inconsistent
with the Commonwealth Heritage management principles (see Subdivision
D).
(3) The Minister may, at any time, revoke an endorsement of a plan if the
Minister considers it appropriate to do so.
(1) Despite section 341S, a Commonwealth agency must not make a plan
for managing so much of a Commonwealth Heritage place as is in a Commonwealth
reserve and covered by another plan under this Act.
(2) Despite section 341S, a Commonwealth agency must not make a plan
for managing so much of a Commonwealth Heritage place as is in the Territory of
Heard Island and McDonald Islands and covered by a plan in operation under the
Environment Protection and Management Ordinance 1987 of that
Territory.
The Commonwealth or a Commonwealth agency must not contravene a plan
under section 341S for managing a Commonwealth Heritage place.
To avoid doubt, a plan for managing a Commonwealth Heritage place may be
in the same document as:
(a) one or more other plans for managing Commonwealth Heritage places;
or
(b) one or more other plans that this Act or another law of the
Commonwealth requires or permits to be prepared.
(1) At least once in every 5 year period after a plan for managing a
Commonwealth Heritage place is made under section 341S, the Commonwealth
agency concerned must cause a review of the plan to be carried out.
(2) The review must assess whether the plan is consistent with the
Commonwealth Heritage management principles in force at the time.
(1) The regulations must prescribe principles for managing Commonwealth
Heritage places. The principles prescribed are the Commonwealth Heritage
management principles.
(2) The regulations may prescribe obligations to implement or give effect
to the Commonwealth Heritage management principles.
(3) A person must comply with the regulations to the extent that they
impose obligations on the person.
A Commonwealth agency that owns or controls a place that has, or might
have, one or more Commonwealth Heritage values must take all reasonable steps to
assist the Minister and the Australian Heritage Council in the identification
and assessment of the place’s Commonwealth Heritage values.
(1) A Commonwealth agency must make a written heritage strategy if the
agency owns or controls a place. The agency must do so within 2 years after the
later of:
(a) the time the agency first owns or controls a place; and
(b) the commencement of this section.
Note: The heritage strategy will apply to every place the
agency owns or controls.
(2) The Commonwealth agency may, in writing, amend the heritage strategy
or revoke and replace the heritage strategy.
(3) A heritage strategy must:
(a) mention the period within which the Commonwealth agency must make a
plan under section 341S; and
(b) mention the period within which the Commonwealth agency must do the
things mentioned in subsection 341ZB(1); and
(c) address the matters prescribed by the regulations (if any).
(4) A Commonwealth agency must give the Minister a copy of the
following:
(a) the agency’s heritage strategy (including a replacement of an
earlier strategy);
(b) an amendment of the agency’s heritage strategy.
(5) At least once in every 3 year period after a heritage strategy is
made, the Commonwealth agency concerned must cause a review of the strategy to
be carried out.
(6) The agency must give the Minister a written report of the review. The
report must address the matters prescribed by the regulations (if
any).
(1) A Commonwealth agency must do all of the following within the period
mentioned in its heritage strategy:
(a) conduct a program to identify Commonwealth Heritage values for each
place it owns or controls;
(b) produce a register that sets out, for each place it owns or controls,
the Commonwealth Heritage values (if any) of that place;
(c) give the Minister a written report that includes:
(i) details of the program; and
(ii) a copy of the register.
(2) The regulations may prescribe all or any of the following:
(a) how Commonwealth heritage values may be identified for a
place;
(b) matters a register must address;
(c) matters a report to the Minister must address.
(3) A Commonwealth agency must keep its register up to date.
(4) A register may be kept electronically.
Before a Commonwealth agency takes an action relating to a Commonwealth
Heritage place or a National Heritage place, the agency must:
(a) take into account the Commonwealth Heritage values and/or National
Heritage values of that place; and
(b) minimise any impact the action has, will have, or is likely to have on
such values.
(1) Before a Commonwealth agency takes an action that has, will have or is
likely to have a significant impact on a Commonwealth Heritage place, the agency
must ask the Minister for advice about taking the action.
(2) However, the agency is not required to ask for the advice
if:
(a) the agency has a plan for managing the place that is endorsed by the
Minister under section 341T; and
(b) the action is provided for or taken in accordance with the
plan.
(3) Within 30 business days after an agency asks for advice under
subsection (1), the Minister must give written advice to the agency. The
Minister must consult with the Australian Heritage Council in preparing the
advice.
(4) The Minister may ask an agency to provide additional information about
the action or place concerned. If the Minister does so, the period in
subsection (3) stops on the day the Minister asks for that information
until the day after that information is provided.
(1) This section applies if a Commonwealth agency executes a contract for
the sale or lease to someone else of a Commonwealth area in the Australian
jurisdiction that is or includes all or part of a Commonwealth Heritage place.
It does not matter whether the agency executes the contract for the Commonwealth
or on its own behalf.
(2) The Commonwealth agency must ensure that the contract includes a
covenant the effect of which is to protect the Commonwealth Heritage values of
the place, unless the agency is satisfied that:
(a) having regard to other means of protecting those values, including
such a covenant in the contract is unnecessary to protect them or is
unreasonable; or
(b) including such a covenant in the contract is impracticable.
(3) The Commonwealth agency must inform the Minister before executing the
contract if:
(a) such a covenant:
(i) would not, or could not be made to, bind the successors in title of
the buyer or lessee; or
(ii) could be insufficient to ensure the ongoing protection of the
Commonwealth Heritage values of the place; or
(b) the agency is satisfied as described in subsection (2).
The information must include written reasons why paragraph (a) applies
or why the agency is satisfied as described in subsection (2).
(4) If the Minister is informed of a matter in paragraph (3)(a) or
that the Commonwealth agency is satisfied that it is unreasonable or
impracticable to include such a covenant in the contract, the Minister
must:
(a) take all reasonable measures to enter into a conservation agreement
with the prospective buyer or lessee for the protection and conservation of the
Commonwealth Heritage values of the place; or
(b) advise the agency about measures to ensure the ongoing protection of
the Commonwealth Heritage values of the place.
(5) If the Minister is informed that the Commonwealth agency is satisfied
that it is unnecessary to include such a covenant in the contract, the Minister
may advise the agency about measures to ensure the ongoing protection of the
Commonwealth Heritage values of the place.
(6) If the Minister advises the Commonwealth agency under this section
about measures to ensure the ongoing protection of the Commonwealth Heritage
values of the place, the agency must take all reasonable steps to ensure that
the measures are taken.
(1) This section applies in relation to:
(a) an authority established for the government of the Territory of
Christmas Island or the Territory of Cocos (Keeling) Islands by or under a law
applying in the Territory; and
(b) an action that has, will have or is likely to have a significant
impact on a Commonwealth Heritage place in the Territory.
(2) The authority must ask the Minister for advice about the action before
the authority decides whether to give an authorisation (however described) under
a law applying in the Territory, or under an instrument made under such a law,
for a person to take the action.
(3) The Minister must give the authority written advice about the action
within a reasonable time of being asked. The Minister must consult the
Australian Heritage Council in preparing the advice.
(4) The Minister may ask the authority for extra information about the
action before giving the advice.
(1) The Commonwealth may give financial or other assistance for the
identification, promotion, protection or conservation of a Commonwealth Heritage
place to any person.
(2) The Commonwealth may give the assistance subject to
conditions.
(1) At least once in every 5 year period after the Commonwealth Heritage
List is established, the Minister must ensure that:
(a) a review of the Commonwealth Heritage List is carried out;
and
(b) a report of that review is tabled in each House of the
Parliament.
(2) The report must include details of:
(a) the number of places included in the Commonwealth Heritage List;
and
(b) any significant damage or threat to the Commonwealth Heritage values
of those places; and
(c) how many plans under Subdivision C for managing Commonwealth Heritage
places have been made, or are being prepared, and how effectively the plans that
have been made are operating; and
(d) the operation of any conservation agreements under Part 14 that
affect Commonwealth Heritage places; and
(e) any other matters that the Minister considers relevant.
33 At the end of subsection
367(1)
Add:
; and (j) if the reserve includes a National Heritage place or
Commonwealth Heritage place:
(i) take account of the National Heritage management principles or
Commonwealth Heritage management principles as the case may be; and
(ii) address the matters that must be addressed by a plan under
section 324S or 341S relating to such a place.
34 Part 16 (heading)
Repeal the heading, substitute:
35 Subsection 391(3) (after table
item 11)
Insert:
|
11A |
324S |
about making a plan for managing a National Heritage place |
36 Subsection 391(3) (after table
item 13)
Insert:
|
13A |
341T |
about endorsing a plan for managing a Commonwealth Heritage place |
37 At the end of
Part 16
Add:
Subject to this Act, the Minister must have regard to information in the
Register of the National Estate kept under the Australian Heritage Council
Act 2002 in making any decision under this Act to which the information is
relevant.
38 After subparagraph
495(2)(a)(i)
Insert:
(ia) section 15C (Offences relating to National Heritage places);
or
39 Section 528
Insert:
Australian Heritage Council means the body established by the
Australian Heritage Council Act 2000.
40 Section 528
Insert:
Commonwealth Heritage criteria has the meaning given by
subsection 341D(1).
41 Section 528
Insert:
Commonwealth Heritage List means the list kept under
Subdivision B of Division 3A of Part 15.
42 Section 528
Insert:
Commonwealth Heritage management principles has the meaning
given by section 341Y.
43 Section 528
Insert:
Commonwealth Heritage place has the meaning given by
subsection 341C(2).
44 Section 528
Insert:
Commonwealth Heritage value has the meaning given by
section 341D.
45 Section 528 (definition of cultural
heritage)
Repeal the definition.
46 Section 528 (paragraph (d) of the
definition of environment)
Repeal the paragraph, substitute:
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in
paragraph (a), (b) or (c).
47 Section 528
Insert:
heritage value of a place includes the place’s natural
and cultural environment having aesthetic, historic, scientific or social
significance, or other significance, for current and future generations of
Australians.
48 Section 528
Insert:
indigenous heritage value of a place means the heritage value
of the place that is of particular significance to indigenous persons in
accordance with their traditions.
49 Section 528
Insert:
National Heritage criteria has the meaning given by
subsection 324D(1).
50 Section 528
Insert:
National Heritage List means the list kept under Subdivision
B of Division 1A of Part 15.
51 Section 528
Insert:
National Heritage management principles has the meaning given
by section 324Y.
52 Section 528
Insert:
National Heritage place has the meaning given by subsection
324C(2).
53 Section 528
Insert:
National Heritage value has the meaning given by
section 324D.
54 Section 528 (definition of natural
heritage)
Repeal the definition.
55 Section 528
Insert:
place includes:
(a) a location, area or region; and
(b) a building or other structure, or group of buildings or other
structures (which may include equipment, furniture, fittings and articles
associated or connected with the building or structure, or group of buildings or
structures); and
(c) in relation to the protection, maintenance, preservation or
improvement of a place—the immediate surroundings of a thing in
paragraph (a) or (b).
Environment Protection and
Biodiversity Conservation Act 1999
1 After subsection 324G(4)
Insert:
(4A) If, in making an assessment, the Australian Heritage Council
considers that the place might have indigenous heritage value, it
must:
(a) ask the Director of Indigenous Heritage Protection to provide written
advice on the place’s indigenous heritage value:
(i) within 40 business days if the Minister requested the assessment under
section 324E or 324G; or
(ii) within 20 business days if the Minister requested the assessment
under section 324F (emergency listing); or
(iii) within a reasonable period if the Council is making the assessment
under section 324G on the Council’s own initiative; and
(b) if the Director provides the advice on time—consider the advice
and give a copy of it to the Minister with the assessment.
Note: This item will only commence after the commencement of
section 9 of the Act that establishes the Director of Indigenous Heritage
Protection (see section 2 of this Act).
2 After paragraph
324J(8)(b)
Insert:
(ba) the advice (if any) of the Director of Indigenous Heritage
Protection, a copy of which was given to the Minister by the Council under
paragraph 324G(4A)(b) with the assessment; and
Note: This item will only commence after the commencement of
section 9 of the Act that establishes the Director of Indigenous Heritage
Protection (see section 2 of this Act).
3 After subsection 341G(4)
Insert:
(4A) If, in making an assessment, the Australian Heritage Council
considers that the place might have indigenous heritage value, it
must:
(a) ask the Director of Indigenous Heritage Protection to provide written
advice on the place’s indigenous heritage value:
(i) within 40 business days if the Minister requested the assessment under
section 341E or 341G; or
(ii) within 20 business days if the Minister requested the assessment
under section 341F (emergency listing); or
(iii) within a reasonable period if the Council is making the assessment
under section 341G on the Council’s own initiative; and
(b) if the Director provides the advice on time—consider the advice
and give a copy of it to the Minister with the assessment.
Note: This item will only commence after the commencement of
section 9 of the Act that establishes the Director of Indigenous Heritage
Protection (see section 2 of this Act).
4 After paragraph
341J(8)(b)
Insert:
(ba) the advice (if any) of the Director of Indigenous Heritage
Protection, a copy of which was given to the Minister by the Council under
paragraph 341G(4A)(b) with the assessment; and
Note: This item will only commence after the commencement of
section 9 of the Act that establishes the Director of Indigenous Heritage
Protection (see section 2 of this Act).
1 Places may be taken to be included in the
Commonwealth Heritage List
(1) In this item:
Register of the National Estate means the Register of the
National Estate kept under the Australian Heritage Commission Act 1975,
including the Interim List kept under section 26 of that Act, as in force
immediately before this item commences.
(2) Within 6 months after this item commences, the Minister may determine
that the Commonwealth Heritage List is taken to include a place if:
(a) the place:
(i) was included, immediately before this item commences, in the Register
of the National Estate; or
(ii) is part of a place that was included, immediately before this item
commences, in the Register of the National Estate; and
(b) the place is within a Commonwealth area; and
(c) the Minister is satisfied that the place has one or more Commonwealth
Heritage values.
(3) The Minister must ensure that the Commonwealth Heritage List specifies
the Commonwealth Heritage value or values for each place that the Minister
determines is taken to be included in the Commonwealth Heritage List.
(4) A determination under subitem (2) must be in writing and a copy of
the determination must be published in the Gazette.
Environment Protection and
Biodiversity Conservation Act 1999
1 Subsections 515(1) and
(2)
After “Department”, insert “or to the
Director”.