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(Circulated by authority of the Minister for the Environment
and Heritage,
The Hon. Dr David Kemp MP)
The objects of this Bill are:
• To establish a Commonwealth
heritage regime that will focus on matters of national significance and
Commonwealth responsibility;
• To list places of national heritage
significance in a National Heritage List using a process of community
consultation, expert advice and ministerial responsibility;
• To
protect and manage places in the National Heritage List;
• To list
places in Commonwealth areas with heritage significance in a Commonwealth
Heritage List using a process of community consultation, expert advice and
ministerial responsibility;
• To advise Commonwealth agencies on
actions in relation to places in the Commonwealth Heritage List;
and
• To provide for the management of places in the Commonwealth
Heritage List.
The Bill comprises four schedules, three of which amend the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC
Act).
National Heritage List (Schedule 1)
The Minister may only include a place in the National Heritage List if
satisfied that the place has one or more National Heritage values. The Minister
may ask the Australian Heritage Council, an expert heritage advisory body, for
an assessment of the place’s National Heritage values and invite public
comments on the inclusion of the place in the National Heritage List.
The
Minister must make plans for managing National Heritage places that are entirely
within Commonwealth areas and 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. In making plans for a National Heritage
place, the Minister must also take into account the precautionary
principle.
The Commonwealth can provide assistance for the
identification, promotion, protection or conservation of National Heritage
places.
Commonwealth Heritage List (Schedule 1)
The
Minister may include a place in the Commonwealth Heritage List if the place is
in a Commonwealth area (either in Australia or abroad) and the Minister is
satisfied that the place has one or more Commonwealth Heritage values. The
Minister may ask the Australian Heritage Council, an expert heritage advisory
body, for an assessment of the place’s Commonwealth Heritage values and
invite public comments on the inclusion of the place in the Commonwealth
Heritage List.
The Bill requires that a Commonwealth agency must ask the
Minister for advice before taking an action that has, will have or is likely to
have a significant impact on a Commonwealth Heritage place. However the agency
is not required to ask the Minister’s advice if the proposed action is
taken in accordance with a management plan endorsed by the Minister. In
endorsing plans for a Commonwealth Heritage place, the Minister must also take
into account the precautionary principle.
Commonwealth agencies must make
plans for managing Commonwealth Heritage places and assist in the identification
of potential heritage places under their ownership or control through the
development of heritage strategies and heritage registers.
The
Commonwealth can provide assistance for the identification, promotion,
protection or conservation of Commonwealth Heritage places.
The Commonwealth may provide financial or other assistance.
Advice
on Indigenous heritage (Schedule 2)
The Bill provides for the
Australian Heritage Council to obtain advice from the Director of Indigenous
Heritage Protection on a place’s indigenous heritage
values.
Register of the National Estate (Schedule 3)
Places
on the Register of the National Estate that are wholly within a Commonwealth
area may be taken to be included in the Commonwealth Heritage List if the
Minister so determines within six months of the new regime
commencing.
Delegation (Schedule 4)
The Minister or the
Secretary may delegate any powers under the EPBC Act to the Director of National
Parks.
Acts replaced
The Bill is presented in conjunction
with the Australian Heritage Council Bill 2002; together, the Bills replace the
Australian Heritage Commission Act 1975.
FINANCIAL IMPACT STATEMENT
The Environment and Heritage Legislation Amendment Bill (No.1) 2002,
along with the Australian Heritage Council Bill 2002, will not cost the
Commonwealth more than the existing legislative arrangements being
replaced.
REGULATION IMPACT STATEMENT
Duplication
The Commonwealth’s existing heritage
conservation regime is now seriously outdated and subject to significant
limitations. Under the Australian Heritage Commission Act 1975 (AHC
Act), over
13 000 places are listed on the Register of the National Estate.
Some of these places are of national significance but many would properly be
regarded as places of State or local significance. Therefore, the Commonwealth
is often involved in matters that are not appropriately the responsibility of a
national government. As a result, the current regime is characterised by
unnecessary inter-governmental duplication which causes uncertainty and delay
for business and industry.
It is also important to recognise that the
AHC Act provides no substantive protection for heritage places of national
significance. The limited procedural safeguards included in the AHC Act fall
well short of contemporary best practice in heritage conservation.
The
deficiencies in the existing regime can be summarised as
follows:
• a lack of an overarching national heritage policy on one
hand and, on the other, a Commonwealth heritage regime that was involved, in
great detail, at a local and State level;
• duplication in heritage
laws and processes between the Commonwealth, States, Territories and local
government;
• the Commonwealth being repeatedly involved in heritage
protection controversies that were more properly the responsibility of the
States and local government;
• community confusion about the various
heritage regimes and lists in operation; and
• a lack of real
protection for nationally-important heritage places.
i. Government roles and responsibilities
The current Commonwealth regime was established by the AHC Act in 1975.
At that time, it was Australia’s only heritage protection statute. Now
all States and Territories have heritage protection legislation and many local
government bodies identify and protect heritage in local planning instruments.
The Commonwealth’s listing of places has now been widely duplicated in
State and local lists with the result that different pieces of protection and
planning law can apply to one site.
The Council of Australian Governments
(COAG) (1997 Agreement, section 6) agreed on the need for the rationalisation of
existing Commonwealth/State arrangements for the identification, protection and
management of places of heritage significance. COAG accepted that the
Commonwealth’s role should focus on the protection of places of national
heritage significance and ensure Commonwealth compliance with State heritage and
planning laws.
Implementation of the strategy envisaged by COAG was
subject to widespread consultation through 1998 and 1999. It is now proposed
that the Commonwealth take action to recognise the roles and responsibilities of
the Commonwealth and the States consistent with the COAG
Agreement.
ii. Listing processes
The
Commonwealth, States, Territories and many non-government and independent
organisations maintain lists of heritage places for statutory and non-statutory
purposes. Multiple listing has generated confusion in the community about the
implications of listing and the relationships between registers.
At the
Commonwealth level, the Register of the National Estate (RNE) is a statutory
list covering natural and cultural heritage places. It includes places
significant at the national, State and local level. However, the RNE does not
differentiate between the different levels of significance, and it is sometimes
confused with other lists, including the World Heritage List, Ramsar list, State
lists, and National Trust registers.
Approval processes related to a
place that is listed on more than one statutory list and involving more than one
regulatory authority can result in unnecessary delays, costs and uncertainty for
both industry and the community.
iii. National Heritage
List
The RNE contains places of all levels of significance but does
not differentiate between them. COAG (1997) agreed to the establishment of a
list of places of national heritage significance and accepted that this be a
further matter of national environmental significance. The EPBC Act
provides a framework for the protection of matters of national environmental
significance.
It is now proposed that the identification and protection
of sites of national heritage significance be included as a matter of national
environmental significance in that Act. Other matters of national environment
significance, as identified by COAG, are already recognised in the EPBC Act
framework.
The COAG move to rationalise existing Commonwealth/State heritage
management arrangements cannot be implemented without Commonwealth legislative
change. The operation of the AHC Act duplicates State responsibilities and
fails to provide substantive protection for heritage places of national
significance. In addition, the AHC Act does not provide for the identification
of places of national heritage significance as envisaged by COAG. Legislation
is required to address these two shortcomings.
• To assign responsibility for identifying, protecting and managing
heritage places to the appropriate level of government;
• To ensure
that heritage management systems are compatible, complementary and streamlined
across all levels of government to minimise duplication and provide certainty to
property owners, decision makers and the community;
• To ensure that
nationally-significant heritage places are identified and protected;
• To facilitate the protection of places of heritage significance on
Commonwealth land (other than sites of national significance); and
• To
retain the Register of the National Estate in a modified form as a valuable
information resource that will provide guidance to the Minister for the
Environment and Heritage when making decisions on the impact of an action on the
environment under the EPBC Act.
Is there a regulation/policy currently in place? Who administers
it?
This amendment bill is designed to replace the AHC Act which is
administered by the Department of the Environment and Heritage.
The
authority for the establishment of a National Heritage List arises from the
following:
(i) The 1997 Council of Australian Governments Heads of
Agreement on Commonwealth/State Roles and Responsibilities for the
Environment which agreed to:
‘the rationalisation of the
existing Commonwealth/State arrangements for the identification, protection and
management of places of heritage significance through the development...of a
co-operative national heritage places strategy which will....provide for the
establishment of a list of places of national heritage
significance.’
(ii) The Consultation Paper on the Reform of
Commonwealth Environment Legislation issued by the Minister in 1998 which
stated that:
‘The National Strategy should provide for the
preparation of a national list of heritage places of exceptional value and
importance to the nation as a whole.’ (p.35)
(iii) Coalition
election policy Our Living Heritage (1998):
‘Support the
establishment of a national list of heritage places for which the Commonwealth
will have protective powers.’ (p.58)
(iv) The National Strategy
for Australia’s Heritage Places: A Commonwealth Consultation Paper,
issued by the Minister in 1999, which stated that the Commonwealth, in
partnership with the States, would:
‘Identify and maintain a
comprehensive list of places of national significance through a
legislatively-defined process’ (p.11)
(v) Coalition election policy
A Better Environment (2001):
‘Ensure that the existing
Register of the National Estate continues to be recognised for the purposes of
public education and the promotion of heritage conservation generally’.
(p.50 )
‘The new Commonwealth heritage regime, in particular the
establishment of a Commonwealth Heritage List, has addressed a number of the key
aspects of the Schofield Report into the management of Commonwealth-owned
properties. The Coalition will continue to adopt the best practice heritage
management approach in Commonwealth agencies, as articulated in the Schofield
Report’. (p. 52)
OPTIONS
The only
options available to the Government are: (i) to continue with the existing
Commonwealth/State heritage regimes (which fails to give effect to the COAG
Agreement) or (ii) to implement the COAG Agreement through the reform of
Commonwealth heritage legislation.
Changes to the legislation will affect
government, business, and the community to varying degrees. The most
significant regulatory impacts would arise from changes to the
Commonwealth’s heritage assessment and approvals regime.
In reforming its heritage legislation, the Government can do one of two
things: (i) amend the AHC Act or (ii) incorporate a new heritage regime into the
existing EPBC Act.
The required amendments to the AHC Act would be extensive. It would be
necessary to establish a substantive protection regime, prescribe an approval
process for proposed actions, a framework for entering into bilateral and other
agreements, the establishment of different levels of assessment and a process
for the establishment of management plans. To follow this route would,
therefore, involve extensive changes to the older legislation and could lead to
duplication of processes. It would, in particular, require duplicating the
existing EPBC Act framework. This would be contrary to COAG’s commitment
to reduce such duplication in Commonwealth/State environmental responsibilities
and to increase stakeholder certainty in approvals
processes.
Incorporating a heritage protection regime within the EPBC
Act would be legislatively simpler. All it would require is the inclusion
of heritage as an additional matter of national environmental
significance (Part 3). The Government’s objectives would then be met
by relying on the protection framework already established in the EPBC Act.
This approach would also be in keeping with COAG’s desire to simplify the
assessment of nationally-significant heritage matters and to provide a robust
framework for Federal-State co-operation on environmental
matters.
Features common to both legislative approaches
include:
• Limiting Commonwealth involvement in heritage assessment
and approval processes to those heritage matters of national
significance;
• Proponents will be able to initiate the triggering
process in the Act;
• Decisions on Commonwealth involvement will be
made early in the process and will be binding;
• A transparent
legislative mechanism for the accreditation of State assessment processes and,
in some cases, State decisions will be adopted. The goal will be to maximise
reliance on State processes which meet appropriate standards. Bilateral
agreements will provide for Commonwealth accreditation of State processes and,
in appropriate cases, State decisions (for example, decisions under agreed
management plans). Accordingly, bilateral agreements will allow the Commonwealth
to accredit State systems which meet specified criteria. The Bill contains
provisions to ensure that the level of protection afforded by State processes
must be at least equivalent to that provided by Commonwealth processes; and
IMPACT ANALYSIS
Who is affected by the
problem, and who is likely to be affected by its proposed
solutions?
The main parties affected by the problem and its proposed
solutions are the Commonwealth, States and Territories, and industry.
The
community will also be affected by changes in the management of the heritage
environment to the extent that roles and responsibilities will be clearly
established, including the recognition that the Commonwealth’s role should
focus on places of national heritage significance.
Identify and
categorise the expected impacts of the proposed options as likely benefits, or
likely costs. Determine which groups are likely to experience these benefits and
costs.
Option 1: Status quo
Benefits
The
heritage stakeholder community has a strong historical attachment to the
Register of the National Estate which would be maintained in its present form
under the status quo.
Costs
The main costs to the
community, if the status quo is maintained, is that heritage places of national
significance will not enjoy any substantive protection under Commonwealth
law.
The main costs to the Commonwealth are:
• unnecessary
duplication of State assessment and approval processes will
continue;
• the Commonwealth will continue to assess matters that are
of State and local heritage significance only; and
• some proposals
affecting matters of genuine national heritage significance will continue to
escape Commonwealth assessment and approval.
The main costs to the States
arise from:
• continuing unnecessary duplication of Commonwealth
assessment and approval processes; and
• uncertainty about whether and
when the Commonwealth will become involved in environmental assessment and
approval and the resulting high cost of managing inquiries and debates when the
Commonwealth does become involved.
The main costs to industry
are:
• some proposals will continue to be unnecessarily subject to both
Commonwealth and State assessment and approvals;
• continuing
uncertainty about whether Commonwealth assessment and approval processes are
triggered, and associated delays in assessment;
• continuing delays
owing to Commonwealth assessment and approval processes being triggered late in
the development process; and
• the expense and delay of often being
involved in major land use debates and inquiries triggered by the referral
process involving places on the RNE.
Option 2: Reform of
Commonwealth heritage legislation
Benefits
The main
benefits to the Commonwealth are:
• improved efficiency and
transparency in decision making on heritage matters involving the Commonwealth
and the States;
• more focused Commonwealth involvement in heritage
issues based on matters of national significance, which will lead to better use
of Commonwealth resources and improved environmental outcomes;
• the
removal of unnecessary duplication of heritage assessment and approval processes
through the framework for accreditation of State processes and
decisions;
• Commonwealth’s level of involvement determined early
in an assessment and approvals process;
• removal of existing indirect
triggers will remove the obligation (and costs) of Commonwealth Ministers and
Departments requiring impact assessment for matters that are of State or local
significance only;
• opportunities for co-ordinating and streamlining
Commonwealth decision-making on heritage matters involving the
States;
• clear Commonwealth role in heritage matters and clear
arrangements for determining whether matters of national heritage significance
exist;
• the total cost of assessments and approvals processes to the
Government sector will be reduced, because duplications and inefficiencies are
being eliminated, particularly through accreditation and bilateral agreements;
• use of bilateral agreements, conservation agreements and other
instruments to encourage a focus on long-term planning and monitoring;
and
• improved protection and management of Commonwealth Heritage
places.
The main benefits to States are:
• recognition that
heritage matters of State or local significance will be dealt with by the
States, together with greater certainty of Commonwealth responsibilities and
involvement in heritage issues based on matters of national
significance;
• Commonwealth will no longer be involved in heritage
matters that are of only State or local significance;
• improved
efficiency and transparency in decision making on heritage matters involving the
Commonwealth and the States with mechanisms that involve the States in decision
making;
• clear arrangements for determining whether matters of
national heritage significance exist; and
• removal of unnecessary
duplication of Commonwealth environmental assessment and approval processes
through streamlined accreditation arrangements.
The main benefits to
industry are:
• greater certainty of Commonwealth and State roles,
responsibilities and processes relating to the environment, particularly
Commonwealth involvement in heritage issues;
• simplified and clearer
framework in which industry can pursue proposals requiring development
approval;
• a framework for improved accreditation arrangements whereby
only one government heritage assessment and approval process will be applied to
an activity or proposal - the government best placed to undertake an assessment
will do so with unnecessary duplication removed;
• a framework for
integrated Commonwealth and State processes and improved public interfaces for
dealing with activities and proposals involving matters of national heritage
significance;
• environmental and development approvals that are not of
national heritage significance will be considered in accordance with State
environmental and planning processes (unless the action is being undertaken by
the Commonwealth or is in a Commonwealth area);
• the delay,
uncertainty and inefficiency associated with indirect triggers for Commonwealth
assessments will be eliminated;
• the legislation will require an
early, binding decision by the Commonwealth on whether its assessment process
will apply;
• there will be set timeframes within which decisions must
be made; and
• the increased use of voluntary conservation agreements,
which allow a flexible approach to conserving heritage on private
land.
The main benefits to the community are:
• enhanced
protection of heritage places especially heritage places of national
significance, with potential benefits such as better environmental and social
outcomes; and
• while the Bill retains current opportunities for
community input to heritage assessments and approvals, earlier triggering and a
more certain process with explicit time-lines will ensure that community comment
is considered earlier in the development process, and is therefore more
effective. Decisions will continue to be transparent, and information will
continue to be available to the public.
Costs
Most of the
costs of the revised assessment processes will be borne by Government, and will
arise from the need to revise regulations and procedures, and negotiate and
implement bilateral agreements. To some degree, these costs are being incurred
now by the commencement of the EPBC Act and, by including heritage as a matter
of national environmental significance, the Government is able to minimise any
additional administrative costs arising from its proposed changes to heritage
assessment processes. Indeed, the Government expects that the costs of the
administration of the proposed regime will be met from the resources redirected
from the administration of the AHC Act.
Minor costs to industry will
result from the need to become familiar with the new procedures and train staff
to comply with them. But as industry will, in any event, have to become familiar
with the assessment provisions of the EPBC Act, the additional compliance costs
associated with making heritage a matter of national environmental significance
under that Act should not be significant.
The inclusion of heritage as a
specific obligation under the EPBC Act framework will clarify the somewhat
unclear heritage protection obligations which currently exist and should also
help minimise overall administrative and compliance costs.
Total costs
associated with the operation of Commonwealth involvement in State heritage
matters are expected to be significantly reduced as the Commonwealth will no
longer be involved in matters that are the proper responsibility of the
States.
CONSULTATION
The Review of Commonwealth-State Roles
and Responsibilities for the Environment involved extensive consultation between
the Commonwealth, States, Territories, and the Australian Local Government
Association. The Review also involved consultation with relevant Ministerial
Councils and non-government organisations. In December 1996, the views of key
non-government organisations on a consultation paper were sought. Submissions
from these organisations were considered by the senior level Working Group
conducting the review, which also held discussions with representatives of key
community organisations.
The consultation process included national
workshops on technical issues, the release of discussion documents, the holding
of the 1998 National Heritage Convention (facilitated by the Australian Heritage
Commission) and the entering into detailed discussions with the States and
Territories at a Ministerial and senior officials level.
Consultation on
the reform of Commonwealth heritage legislation was primarily through Senator
Hill’s Consultation Paper on the Reform of Commonwealth Environment
Legislation (1998) and the National Strategy for Australia’s
Heritage Places: A Commonwealth Consultation Paper issued by the Minister in
April 1999.
Who are the main affected parties? What are the views of
those parties?
The main affected parties and their views are:
There was acceptance, by the States and Territories, of a number of key
issues:
• the heritage roles and responsibilities of
Governments;
• the process for listing places of national heritage
significance; and
• the principle that the National List should aim to
include the truly outstanding places of national heritage
significance.
Agreement could not be reached on:
• the
referral of State powers to the Commonwealth to enable the full protection of
nationally-listed places;
• the request by States for a veto on the
nomination of a place for national listing; and
• the development of
common heritage protection standards.
Industry
Industry
generally supports the substance of the proposed reforms, particularly the
clarification of Commonwealth and State roles and responsibilities, the
efficiencies that will be gained through the streamlining of the environmental
assessment and approvals processes, and the simplification of the regulatory
regime. Industry notes that the precise benefits of the reforms will, to some
extent, depend upon implementation of accreditation arrangements and bilateral
agreements between the Commonwealth and individual States and
Territories.
Conservation organisations
Conservation groups are
concerned that accreditation of State and Territory processes may reduce the
overall level of protection for the environment. There is also concern that
approaches such as the use of bilateral agreements should be transparent, and
provide scope for public involvement. Conservation organisations generally
support the suggested reforms relating to an integrated approach to the
conservation of heritage. There was some general concern from conservation
groups regarding any possible erosion of the independence of the Australian
Heritage Commission. Many of the groups are also concerned that the Register of
the National Estate (RNE) may not be retained. The retention of the RNE in a
modified form in the revised Bills will go some way towards addressing these
concerns without creating any additional regulatory impact.
Repealing the AHC Act and amending the EPBC Act to provide for the
establishment, by the Minister, of a list of places of national heritage
significance is the preferred option because it will:
• implement the
Heads of Agreement on Commonwealth/State Roles and Responsibility for the
Environment;
• focus Commonwealth involvement in heritage matters of
national significance and eliminate the need for Commonwealth involvement in
matters which are properly the responsibility of State or local governments;
• deliver significant ongoing benefits to the Commonwealth, States and
Territories, and industry, particularly in terms of more streamlined and
efficient heritage assessment and approvals processes; and
• implement
the Government’s election policy commitments in relation to
heritage.
Heritage assessment and approval procedures will be simplified
and streamlined. Circumstances under which Commonwealth processes are triggered
will be much clearer than at present, and clear time-lines will also be set
out.
Consultation with business and industry demonstrates support for,
and understanding of, the proposed changes.
The proposed amendments are
also likely to reduce compliance costs for business and for non-government
organisations.
IMPLEMENTATION AND REVIEW
The Environment
and Heritage Legislation Amendment Bill was originally introduced into the
Federal Parliament in December 2000. The Bill has since lapsed and it is
envisaged that it will be reintroduced with some amendments into the Winter 2002
session of the Federal Parliament. It is hoped that the Bill will be passed in
the second half of 2002 and come into force at the beginning of 2003.
Thereafter, the Government will monitor the operation of the amendments on an
on-going basis.
1 This item provides for the Act to be cited as the Environment and
Heritage Legislation Act
(No.1) 2002.
Royal Assent. It also provides that Schedule 1 will commence on a day to be
fixed by Proclamation. Schedule 2 commences immediately after the commencement
of Schedule 1 or when the Director of Indigenous Heritage Protection is
established under the Aboriginal and Torres Strait Islander Heritage
Protection Act if that Act occurs after the commencement of Schedule 1.
Schedule 3 will commence at the same time as Schedule 1. Schedule 4 will
commence on the day on which this Act receives the Royal Assent.
4 This item sets out the effects of Schedules to this Act.
SCHEDULE 1 – AMENDMENTS RELATING TO THE NATIONAL HERITAGE LIST
AND COMMONWEALTH HERITAGE LIST
Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act)
Item 1 –
After paragraph 3(1)(c)
Item 2 – After paragraph 3(2)(f)
6 This item amends
section 3(2)(f) of the EPBC Act to recognise that, in order to achieve
its
objects, the EPBC Act includes provisions to identify places for the
National Heritage List and
the Commonwealth Heritage List and to enhance
the protection, conservation and presentation of those places.
Item 3
– Subsection 12(4)
instance only applies to Section 12.
Section 15B – Requirement for approval of activities with a
significant impact on a National
Heritage place
8 This
section has a range of provisions that prohibits an action that has, will have
or is likely to
have a significant impact on the National Heritage values
of a National Heritage place except:
i. where a person has obtained the
approval of the Minister for taking the action; or
ii. where a bilateral
agreement provides that the action does not require an approval; or
iii. where a declaration provides that an action does not require an
approval.
9 The section is structured so as to rely upon the available
heads of constitutional power to the
greatest extent possible. Civil
penalties apply for non-compliance.
10 This section mirrors section 15B in regulating actions in relation to National Heritage places.
However, it establishes criminal offences in the event of non-compliance.
Item 5 - Subsection 26(3) (note)
11 This item provides a new
note which clarifies that Section 26 (requirement for approval of
activities involving Commonwealth land) also provides for the protection of
the heritage values of a Commonwealth Heritage place because the definition of
environment in section 528
includes the heritage values of a
place.
Item 6 - Subsection 27A(6) (note 2)
Commonwealth land) also provides for the protection of the heritage values of
a
Commonwealth Heritage place because the definition of environment
in section 528 includes the heritage values of a place.
Subdivision AA – Protection of Commonwealth Heritage places
outside the Australian
jurisdiction
27B
Requirement for approval of actions with significant impact on Commonwealth
Heritage
places overseas
have a significant impact on the Commonwealth Heritage values of a
Commonwealth Heritage
place overseas except:
(i)
where a person has obtained the approval of the Minister for taking the action;
or
(ii) where a bilateral agreement provides that the action
does no require an approval: or
(iii) where a declaration provides that an
action does not require an approval.
places overseas. However, it establishes criminal offences in the event of
non-compliance.
is likely to have an impact on the heritage values of a National Heritage
place or a Commonwealth Heritage place, if the Minister had already decided -
under section 75 of the EPBC Act prior to the commencement of this Schedule -
whether that action was a controlled action or not.
Item 9 -
Subsection 28(1) (note)
Commonwealth actions) also provides for the protection of the heritage
values of a Commonwealth Heritage place because the definition of
environment in section 528 includes the heritage values of a place. For
the same reason, the section provides for the protection of places entered in
the Register of the National Estate.
Item 10 - At the end of Division 2 of Part 3
Subdivision C
– Actions that are taken to be covered by this Division
28AA
Actions that are taken to be covered by this Division
Governor-General that regulations be made identifying actions (or classes of
actions) that are taken to have a significant impact on the environment in
Commonwealth areas. The effect of this provision is to extend the scope of the
existing provisions in Division 2 of Part 3 of the Act to cover a particular
action or class of actions so that actions in a class specified in a regulation
will be a controlled action for the purposes of the Act. Providing the
Environment Minister with the ability to make such regulations will provide
greater certainty for stakeholders in relation to the actions that will be
covered by the provisions in Division 2 of Part 3.
Item 11 –
Section 34 (after table item 1A)
19 This item adds National Heritage
values in a National Heritage place as an additional matter
protected by a
provision of Part 3 (in this case, sections 15B and 15C).
Item 12
– Section 34 (after table item 16B)
20 This item adds the
environment in a Commonwealth Heritage place outside the Australian
jurisdiction as an additional matter protected by a provision of Part 3 (in
this case, sections 27B and 27C(1) and (2)).
Item 13 – After
section 34B
34BA Declarations relating to National Heritage
places
21 This item sets out prerequisites for making declarations and
accrediting management plans in
relation to a National Heritage place. The
intention of the item is to ensure that the declarations and management plans
promote the management of the place in accordance with the National Heritage
management principles.
Item 14 – At the end of Subdivision C of
Division 2 of Part 4
34F Declarations relating to Commonwealth
Heritage places
22 This item sets out prerequisites for making
declarations and accrediting management plans in
relation to a
Commonwealth Heritage place. The intention of the item is to ensure that the
declarations and management plans promote the management of the place in
accordance with the Commonwealth Heritage management principles.
Item
15 – After section 51
51A Agreements relating to National
Heritage places
23 This item sets out prerequisites for entering into a
bilateral agreement concerning a National
Heritage place. The intention of
the item is to ensure that a bilateral agreement, and any bilaterally accredited
management plan, promotes the management of the place in accordance with the
National Heritage management principles.
Item 16 - After subsection
74(1)
Inviting comments from ATSIC
24 This item requires
the Environment Minister to invite the Aboriginal and Torres Strait Islander
Commission to comment on any proposal to take an action which may have a
significant
impact on the indigenous heritage values of a National or
Commonwealth Heritage place.
Item 17 – Subsection 84(3A)
25 The item provides for the Minister to declare that certain actions
covered by declaration in
relation to National Heritage places do not
require assessment under this Part.
Item 18 – After section
137
137A – Requirements for decisions about National
Heritage places
26 The item requires the Minister to take into account
the National Heritage management
principles and any other agreement that
exists in relation to a National Heritage place when making decisions in
relation to sections 15B and 15C.
Item 19 – Chapter 5
(heading)
27 This item amends the heading in Chapter 5 of the
Act.
Item 20 – After paragraph 176(4)(b)
28 This item
enables the Minister to include provisions about heritage values in a
bioregional plan.
Item 21 – Paragraph 304(a)
29 This
item expands the stated object of Part 14 to include conservation agreements
that protect and conserve the values of heritage places.
Item 22
– Section 304
30 This item amends the definition of a conservation
agreement to include agreements whose
primary object is to enhance the
conservation of heritage values or heritage values and
biodiversity.
Item 23 – Subsections 305(1) to (3)
31 This
item enables the Minister to enter into conservation agreements for the
protection and
conservation of heritage values. The section is further
amended so that the Minister must not enter into a conservation agreement unless
it results in a net benefit to the conservation of heritage values and is not
inconsistent with either the Australian World Heritage management principles,
the National Heritage management principles or the Commonwealth Heritage
management principles. The Minister must also have regard to any matters
prescribed by the regulations.
Item 24 - Saving of
agreements
32 This item provides that the amendment of section 305 by
this Schedule does not affect the
validity of a conservation agreement made
before the commencement of this Schedule.
Item 25 – Saving
of matters prescribed by the regulations
33 This item provides that
matters prescribed by the regulations for the purposes of section 305 are
not affected by the commencement of this Schedule.
Item 26
– Subsection 305(6)
34 This item provides that subsection 305(6)
does not apply to conservation agreements in relation
to the protection and
conservation of heritage values.
Item 27 – Paragraphs 306(1)(a)
and (b)
35 This item describes some of the matters that may be included
in a conservation agreement in
relation to the protection and conservation
of heritage values.
Item 28 – Paragraphs 306(2)(a) and
(b)
36 This item further describes some of the matters that may be
included in a conservation
agreement in relation to the protection and
conservation of heritage values.
Item 29 – Subsection
309(3)
37 This item provides that the requirement to publish a
conservation agreement under subsection
309(1) does not apply if the
Minister is satisfied that it would result in harm being done to the heritage
values of a place.
Item 30 – At the end of section
323
38 In this instance, the definition of natural and cultural heritage
applies only to section 323.
Item 31 - After Division 1 of Part
15
Division 1A – Managing National Heritage
places
Subdivision A- Preliminary
Section 324A
– Simplified outline of this Division
39 This section provides a
simplified outline of Division 1A.
Section 324B – Extension to
places etc. outside the Australian jurisdiction
40 This section extends
the provisions of Division 1A to places, acts and omissions outside the
Australian jurisdiction, unless otherwise stated.
Subdivision B
– The National Heritage List
Section 324C – The
National Heritage List
41 This section sets out what constitutes the
National Heritage List, what it must specify and how
it must be
kept.
42 The Minister may include a place in the National Heritage List
if satisfied that the place has
one or more National Heritage values. The
Minister has discretion as to whether to include a
place with National
Heritage values in the National Heritage List.
43 This section also
provides a definition of a National Heritage place in the Act.
44 This section provides a definition of National Heritage value in
the Act. If a place is included
in the National Heritage List and National
Heritage values for that place are specified in the National Heritage List, the
place is considered to have National Heritage values.
45 In deciding
whether a place has National Heritage values, the Minister must consider the
criteria
in the regulations.
46 The regulations must prescribe
criteria for natural, indigenous and historic heritage values of
places.
Section 324E – Nominations of places
47
This section sets out how someone may nominate a place for the National
Heritage List and
what must be done with the nomination. It also sets out
that:
i the Minister may ask the nominator for addition
information and reject the nomination if the information is not provided within
a specified period; or
ii the Minister may reject the nomination
if satisfied that it is vexatious, frivolous or
not made
in good faith; or
iii the Minister must ask the Australian
Heritage Council for an assessment of the
place’s National
Heritage values unless he or she rejects the nomination for the
above reasons.
48 The Minister must advise the nominator of his or her
decision to reject a nomination as soon as
reasonably practicable.
49 The section also provides for the Minister to invite nominations of
places within a specified
national heritage theme.
50 The Council
may nominate a place for inclusion in the National Heritage List.
Section 324F – Emergency listing
51 Where the Minister
considers that a place has one or more National Heritage values and one or
more of these values are under threat, the Minister may include the place
in the National Heritage List before obtaining an assessment from the Australian
Heritage Council.
52 The Minister must take all practicable steps to
identify any owners or occupiers of a place and
notify each person of the
place’s inclusion in the National Heritage List. The Minister must also
advise any nominator of the place’s inclusion in the National Heritage
List and publish a notice of the listing in accordance with the
regulations.
53 The section also sets out the period in which the
Minister must request an assessment from the
Australian Heritage Council
after the place is entered in the National Heritage List under this
provision.
Section 324G – Assessments by the Australian
Heritage Council
54 This section sets out the timeframe for assessments
by the Council for both nominated places
(Section 324E) and emergency
listing of places (Section 324F).
55 The section also sets out with
whom the Council must consult during the period of assessment.
56 The
Council must only consider matters relating to the place’s National
Heritage values when
making assessments.
57 A copy of comments
received during the period of assessment must be forwarded to the
Minister
with the assessment.
58 The Minister can refer an assessment to the
Council in the absence of a nomination.
59 The Council may, on its own
initiative, assess whether a place meets any of the National
Heritage
criteria, whether or not the place is the subject of a nomination.
Section 324H – Requirement to invite public
comments
60 This section sets out the requirement for the Minister to
invite public comment on the inclusion
or proposed inclusion of a place in
the National Heritage List. The section also sets out when the Minister must
publish a notice and what the notice must include. Furthermore, the notice may
specify that public comments should address particular matters and that they
should be provided in a particular way.
61 The period for public comment
is set out depending on whether or not a place is included in the
National
Heritage List under an emergency listing.
62 This section also provides
an option for the Minister to ask the Australian Heritage Council or,
if
required, another person with appropriate expertise, to undertake an assessment
of public comments on the proposed inclusion of a place in the National Heritage
List.
63 The Minister is not required to publish a notice concerning a
place if the Council finds
that the place does not meet any of the National
Heritage criteria, unless the place is being included in the National Heritage
List under an emergency listing.
Section 324J – Decision about
inclusion of a place in the National Heritage List
64 This section sets
out what the Minister must do within sixty days after the end of the period in
which any public comments must be provided. There are exceptions for
emergency listing and
listing outside the Australian jurisdiction.
65 The Minister must decide either to include or not include a place
in the National Heritage List.
That is, the Minister has a broad discretion
as to whether to include a place in the National
Heritage List and he or
she may take into account social and economic considerations. A place is
included in the National Heritage List by instrument published in the
Gazette.
66 If the Minister includes the place in the National Heritage
List, the Minister must attempt to
identify each owner or occupier of the
place and advise them of the listing. The Minister must also advise any
nominator of the place whether or not it has been included in the National
Heritage List, and give written reasons for the decision to anyone who asks for
them.
67 In the case of a place that was listed on the National
Heritage List under an emergency listing
process (section 324F), the
Minister must, within fifteen business days after the end of the period in which
any public comments must be provided, decide either that the place, or part of
the place, should remain in the National Heritage List or decide to remove the
place from the National Heritage List. If the place remains in the National
Heritage List, the Minister may also include one or more additional National
Heritage values for the place, or remove one or more values that were previously
included for the place. The Minister must, within a reasonable time, give
reasons for a removal or alteration to each owner or occupier and any
nominators.
68 The provisions of section 324L about removal of
places or National Heritage values from the
National Heritage List do not
apply to places that were entered in the National Heritage List under an
emergency listing process. This means that the Minister may alter the boundary
of an emergency listed place, remove the place, or remove one or more of the
place’s National Heritage values from the National Heritage List under
this section, even if the place continues to have one or more National Heritage
values.
69 The Minister must consider the Australian Heritage
Council’s assessment of whether the place
meets any of the National
Heritage criteria, any comments that were received during the period of
assessment, any public comments and any assessment of these comments before
making a decision on whether to enter a place in the National Heritage List
under this section, or whether to keep, alter or remove a place listed under an
emergency listing process.
70 The Minister must publish, in accordance
with any regulations, a copy or summary of any
instrument published in the
Gazette under this section.
Section 324K – Listing process not
affected by changing boundaries of a place
71 This section provides
that the boundaries of a place may be changed during the stages of
nomination, assessment and listing, without it affecting compliance with
the provisions in this Subdivision, as long as the boundaries overlap during
each stage of the listing process.
Section 324L – Removal of
places or National Heritage values from the National Heritage List
72
The Minister can only remove a place or part of a place if satisfied that the
place or part does
not have any National Heritage values. The Minister can
only remove one or more National Heritage values from a place if satisfied the
place no longer has the National Heritage value or values.
73 The
Minister may also remove a place or part of a place or one or more National
Heritage
values from the National Heritage List if satisfied that it is
necessary in the interests of Australia’s defence or security to do
so.
74 The Minister must publish an instrument in the Gazette and that
instrument is disallowable
unless the instrument removes the place only
because of Australia’s defence or national security.
75 The
Minister must publish, in accordance with any regulations, a copy or summary of
the
instrument.
Section 324M – Minister must consider
advice of the Australian Heritage Council
76 Before removing a place or
part of a place from the National Heritage List or before removing
one or
more of a place’s values from the National Heritage List, the Minister
must ask for the advice of the Australian Heritage Council. However, the
Minister is not required to ask for and consider the advice of the Council if
the removal is because of Australia’s defence or national
security.
77 The Council must give the advice to the Minister within the
period specified by the Minister,
and the Minister must consider the advice
if he or she receives it by the end of that period. The Council must not
consider any matter that does not relate to the National Heritage values of the
place concerned.
78 The Minister must, within sixty business
days after the earlier of the advice being received and
the specified
period for giving advice ending:
(i) decide whether or not to remove the
place, part or value/s from the National Heritage
List; and
(ii)
with a removal ensure that an instrument removing the place, part or value/s is
published in the Gazette.
This time limit does not apply if the
place is outside the Australian jurisdiction.
Section 324N –
Specifying one or more additional National Heritage values for a National
Heritage place
79 This section sets out how the
Minister can specify in the National Heritage List one or more
additional
National Heritage values. The place is treated like a new nomination but only
for the specified additional National Heritage values and the original listing
of that place is not affected by the requirements of this
section.
Section 324P – National Heritage List must be publicly
available
80 The National Heritage List must be available on the
Internet and must also be available in
hardcopy when requested. The copies
must be up-to-date.
Section 324Q – Certain information may be
kept confidential
81 This section provides for the Minister to keep
some details of places confidential where the
Minister considers that a
place may be significantly damaged by having information disclosed about it
publicly. In such cases, a general description of the place can suffice for
publication purposes.
Section 324R – Disclosure of Australian
Heritage Council’s assessments and advice
82 This section
specifies that there is a period in which a Council member must not disclose an
assessment, advice or any related information, except for the official
purposes of the Council.
83 A member of the Council must give a copy of
the assessment or advice to anyone who asks for
it in after this period has
expired. However, the member should take reasonable steps to ensure that he or
she does not provide a more detailed description than is necessary for
sufficient compliance with the Act if the member is aware that section 324Q
applies.
Subdivision C – Management plans for National Heritage
places in Commonwealth areas
Section 324S – Management plans
for National Heritage places in Commonwealth areas
84 This section
requires the Minister to prepare management plans for National Heritage places
which are completely within Commonwealth areas or that are outside the
Australian jurisdiction and entirely owned or controlled by a Commonwealth
agency. The plan must not be inconsistent with the National Heritage principles
and must address the matters prescribed by the regulations.
85 The
Minister when making, amending or replacing a plan must seek and consider any
comments on the proposed plan or amendment.
86 The Minister must
give notice when making, amending or replacing a plan.
Section 324T
– Restriction on ability to make plans
87 This section provides
that the Minister must not make a plan for a National Heritage place that
is in a Commonwealth reserve or in the Territory of Heard and McDonald
Islands and covered by another plan.
88 The Commonwealth or a Commonwealth agency must not contravene a plan for
managing a
National Heritage place under section 324S.
89 This section allows for multiple plans for National Heritage places to
exist in the same
document.
90 This section requires the Minister to review plans at least once in every
five year period and
ensure that the review addresses whether the plan is
consistent with the current National Heritage management principles.
Subdivision D – Management of National Heritage places in States and
self-governing
Territories
91 This section provides that the Commonwealth must use its best endeavours
to ensure that
management plans are prepared for National Heritage places
that lie wholly or partially within an area under State or Territory
jurisdiction. A management plan should not be inconsistent with the National
Heritage management principles.
92 The Commonwealth and each
Commonwealth agency should act in accordance with the
National Heritage
management principles and the management plan for the place.
93 This section provides for National Heritage management principles to be
prescribed by
regulations.
94 The regulations may also prescribe
obligations to implement or give effect to the National
Heritage management
principles. The section sets out under what circumstances obligations can
be prescribed.
95 This section obliges a Commonwealth agency to provide reasonable
assistance to the Minister
for the Environment and Heritage and the
Australian Heritage Council in identifying and assessing the National Heritage
values of any place it owns or controls.
96 This section also requires
a Commonwealth agency that owns or controls all or part of a
National
Heritage place to assist the Minister for the Environment and Heritage in making
a
management plan for the place.
means of protecting the National Heritage values so that the inclusion of a
covenant is unnecessary. In this situation, the Minister may advise the agency
about measures to ensure the ongoing protection of the place’s National
Heritage values. The agency must take reasonable steps to ensure that the
measures are taken.
100 This section provides for the Commonwealth to give financial or other
assistance to State or
Territory governments or any other person to help
identify, promote, protect or conserve National Heritage places.
101 This item sets out the reviewing and reporting requirements for the National Heritage List.
Item 32 - After Division 3 of Part 15
Division 3A
– Managing Commonwealth Heritage places
Subdivision A -
Preliminary
Section 341A – Simplified outline of this
Division
102 This section provides a simplified outline of Division
3A.
Section 341B – Extension to places etc. outside the
Australian jurisdiction
103 This section extends the provisions of
Division 3A to places, acts and omissions outside the
Australian
jurisdiction, unless otherwise stated.
Subdivision B – The
Commonwealth Heritage List
Section 341C – The Commonwealth
Heritage List
104 This section sets out what constitutes the
Commonwealth Heritage List, what it must specify
and how it must be
kept.
105 The Minister may include a place in the
Commonwealth Heritage List if it is entirely within a
Commonwealth area and
the Minister is satisfied that the place has one or more Commonwealth Heritage
values. The Minister has discretion as to whether to include a place with
Commonwealth Heritage values in the Commonwealth Heritage List.
106
This section also provides a definition of a Commonwealth Heritage place
in the Act.
107 This section provides a definition of Commonwealth Heritage value
in the Act. If a place is
included in the Commonwealth Heritage List
and Commonwealth Heritage values for that place are specified in the
Commonwealth Heritage List, the place is considered to have Commonwealth
Heritage values.
108 In deciding whether a place has Commonwealth
Heritage values, the Minister must consider
the criteria in the
regulations.
109 The regulations must prescribe criteria for natural,
indigenous and historic heritage values of
places.
Section 341E
– Nominations of places
110 This section sets out how someone may
nominate a place for the Commonwealth Heritage List
and what must be done
with the nomination. It also sets out that:
i the Minister
may ask the nominator for addition information and reject the nomination if the
information is not provided within a specified period; or
ii the
Minister may reject the nomination if satisfied that it is vexatious, frivolous
or
not made in good faith; or
iii the
Minister must ask the Australian Heritage Council for an assessment of the
place’s Commonwealth Heritage values unless he or she rejects the
nomination for
the above reasons.
111 The Minister must
advise the nominator of his or her decision to reject a nomination as soon as
reasonably practicable.
112 The Council may nominate a place
for inclusion in the Commonwealth Heritage List.
Section 341F –
Emergency listing
113 Where the Minister considers that a place has one
or more Commonwealth Heritage values and
one or more of these values are
under threat, the Minister may include the place in the Commonwealth Heritage
List before obtaining an assessment from the Australian Heritage Council.
114 The Minister must take all practicable steps to identify any
owners or occupiers of a place and
notify each person of the place’s
inclusion in the Commonwealth Heritage List. The Minister must also advise any
nominator of the place’s inclusion in the Commonwealth Heritage List and
publish a notice of the listing in accordance with the regulations.
115
The section also sets out the period in which the Minister must request an
assessment from the
Australian Heritage Council after a place is entered in
the Commonwealth Heritage List under this provision.
Section 341G
– Assessments by the Australian Heritage Council
116 This section
sets out the timeframe for assessments by the Council for both nominated places
(Section 341E) and emergency listing of places (Section 341F).
117
The section also sets out with whom the Council must consult during the
assessment period.
118 The Council must only consider matters relating
to the place’s Commonwealth Heritage values
when making
assessments.
119 A copy of comments received during the period of
assessment must be forwarded to the
Minister with the
assessment.
120 The Minister may refer an assessment to the Council in
the absence of a nomination.
121 The Council may, on its own
initiative, assess whether a place meets any of the Commonwealth
Heritage
criteria, whether or not the place is the subject of a
nomination.
Section 341H – Requirement to invite public
comments
122 This section sets out the requirement for the Minister to
invite public comment on the inclusion
or proposed inclusion of a place in
the Commonwealth Heritage List. The section also sets out
when the Minister
must publish a notice and what the notice must include. Furthermore, the
notice may specify that public comments should address particular matters
and that they should
be provided in a particular way.
123 The
period for public comment is set out depending on whether or not a place is
included in the
Commonwealth Heritage List under an emergency
listing.
124 This section also provides an option for the Minister to
ask the Australian Heritage Council or,
if required, another person with
appropriate expertise, to undertake an assessment of public comments on the
proposed inclusion of a place in the Commonwealth Heritage List.
125 The
Minister is not required to publish a notice concerning a place if the Council
finds
that the place does not meet any of the Commonwealth Heritage
criteria, unless the place is
being included in the Commonwealth Heritage
List under an emergency listing.
Section 341J – Decision about
inclusion of a place in the Commonwealth Heritage List
126 This
section sets out what the Minister must do within sixty days after the end of
the period in
which any public comments must be provided. There are
exceptions for emergency listing and
listing of places outside the
Australian jurisdiction.
127 The Minister must decide either to
include or not include a place in the Commonwealth
Heritage List. That is,
the Minister has a broad discretion as to whether to include a place in the
Commonwealth Heritage List. A place is included in the Commonwealth Heritage
List by instrument published in the Gazette.
128 If the Minister
includes the place in the Commonwealth Heritage List, the Minister must
attempt to identify each owner or occupier of the place and advise them of
the listing. The Minister must also advise any nominator of the place whether or
not it has been included in the Commonwealth Heritage List, and give written
reasons for the decision to anyone who asks for them.
129 In the case
of a place that was listed on the Commonwealth Heritage List under an emergency
listing process (section 341F), the Minister must, within fifteen business
days after the end of the period in which any public comments must be provided,
decide either that the place, or part of the place, should remain in the
Commonwealth Heritage List or decide to remove the place from the Commonwealth
Heritage List. If the place remains in the Commonwealth Heritage List, the
Minister may also include one or more additional Commonwealth Heritage values
for the place, or remove one or more values that were previously included for
the place. The Minister must, within a reasonable time, give reasons for a
removal or alteration to each owner or occupier and any nominators.
130
The provisions of section 341L about removal of places or Commonwealth Heritage
values
from the Commonwealth Heritage List do not apply to places that were
entered in the Commonwealth Heritage List under an emergency listing process.
This means that the Minister may alter the boundary of an emergency listed
place, remove the place, or remove one or more of the place’s Commonwealth
Heritage values from the Commonwealth Heritage List under this section, even if
the place continues to have one or more Commonwealth Heritage
values.
131 The Minister must consider the Australian Heritage
Council’s assessment of whether the place
meets any of the
Commonwealth Heritage criteria, any comments that were received during the
period of assessment, any public comments and any assessment of these comments
before making a decision on whether to enter a place in the Commonwealth
Heritage List under this section, or whether to keep, alter or remove a place
listed under an emergency listing process.
132 The Minister must
publish, in accordance with any regulations, a copy or summary of any
instrument published in the Gazette under this section.
Section
341K – Listing process not affected by changing boundaries of a
place
133 This section provides that the boundaries of a place may be
changed during the stages of
nomination, assessment and listing, without it
affecting compliance with the provisions in this Subdivision, as long as the
boundaries overlap during each stage of the listing process.
Section
341L – Removal of places or Commonwealth Heritage values from the
Commonwealth Heritage List
134 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 the place or part is
no longer in a Commonwealth area or if the place is outside the Australian
jurisdiction and is no longer owned or leased by the Commonwealth or a
Commonwealth agency.
135 The Minister can only remove a place or part
of a place if satisfied that the place or part does
not have any
Commonwealth Heritage values. The Minister can only remove one or more
Commonwealth Heritage values from a place if satisfied the place no longer has
the Commonwealth Heritage value or values.
136 The Minister may also
remove a place or part of a place or one or more Commonwealth
Heritage
values from the Commonwealth Heritage List if satisfied that it is necessary in
the
interests of Australia’s defence or security to do
so.
137 The Minister must publish an instrument in the Gazette and that
instrument is disallowable
unless the instrument removes the place only
because of Australia’s defence or national
security.
138
The Minister must publish, in accordance with any regulations, a copy or
summary of the
instrument.
Section 341M – Minister must
consider advice of the Australian Heritage Council
139 Before removing
a place or part of a place from the Commonwealth Heritage List or before
removing one or more of a place’s values from the Commonwealth
Heritage List, the Minister
must ask for the advice of the Australian
Heritage Council. However, the Minister is not required to ask for and consider
the advice of the Council if the removal is because of Australia’s defence
or national security or because the place is not within a Commonwealth area.
140 The Council must give the advice to the Minister within the period
specified by the Minister,
and the Minister must consider the advice if he
or she receives it by the end of that period. The Council must not consider
any matter that does not relate to the Commonwealth Heritage values of the place
concerned.
141 The Minister must, within sixty business days after the
earlier of the advice being received and
the specified period for giving
advice ending:
(i) decide whether or not to remove the place, part or value/s
from the Commonwealth
Heritage List; and
(ii)with a removal ensure
that an instrument removing the place, part or value/s is
published in
the Gazette.
This time limit does not apply if the place is outside the
Australian jurisdiction.
Section 341N – Specifying one or more
additional Commonwealth Heritage values for a
Commonwealth Heritage place
142 This section sets out how the
Minister can specify in the Commonwealth Heritage List one or
more
additional Commonwealth Heritage values. The place is treated like a new
nomination but only for the specified additional Commonwealth Heritage values
and the original listing of that place is not affected by the requirements of
this section.
Section 341P – Commonwealth Heritage List
must be publicly available
143 The Commonwealth Heritage List must be
available on the Internet and must also be available
in hardcopy when
requested. The copies must be up-to-date.
Section 341Q – Certain
information may be kept confidential
144 This section provides for the
Minister to keep some details of places confidential where the
Minister
considers that a place may be significantly damaged by having information
disclosed about it publicly. In such cases, a general description of the place
can suffice for publication purposes.
Section 341R – Disclosure
of Australian Heritage Council’s assessments and advice
145 This
section specifies that there is a period in which a Council member must not
disclose an
assessment, advice or any related information, except for the
official purposes of the Council.
146 A member of the Council must give
a copy of the assessment or advice to anyone who asks for
it after this
period has expired. However, the member must take reasonable steps to ensure
that he or she does not provide a more detailed description than is necessary
for sufficient compliance with the Act if the member is aware that section 341Q
applies.
Subdivision C – Management plans for Commonwealth
Heritage places.
Section 341S – Management plans for
Commonwealth Heritage places
147 This section requires a Commonwealth
agency that owns or controls a Commonwealth
Heritage place to prepare a
plan for managing that place. The agency must complete the plan within the
period mentioned in its heritage strategy. The plan must not be inconsistent
with the Commonwealth Heritage management principles and must address the
matters prescribed by the regulations.
148 A Commonwealth agency when
making, amending or replacing a plan must ask for, and take
into account,
advice from the Minister in relation to the proposed plan or amendment. The
Minister must consult with the Australian Heritage Council before giving advice.
A Commonwealth agency must also consider any other comments it receives about
the plan.
149 The agency must give notice when making, amending or
replacing a plan.
Section 341T – Endorsing management plans for
Commonwealth Heritage places
150 This section provides for the Minister
to endorse management plans that have been prepared by
a Commonwealth
agency for Commonwealth Heritage places. The Minister may endorse a plan if
satisfied that it adequately provides for the conservation of the Commonwealth
Heritage values of a place. The Minister must not endorse the management plan if
the Minister believes it is inconsistent with the Commonwealth Heritage
management principles.
Section 341U – Restriction on ability to
make plans
151 This section provides that a Commonwealth agency must
not make a plan for a Commonwealth
Heritage place that is in a Commonwealth
reserve or in the Territory of Heard and McDonald
Islands and covered by
another plan.
152 The Commonwealth or a Commonwealth agency must not contravene a plan
for managing a
Commonwealth Heritage place under section 341S.
153 This section allows for multiple plans for Commonwealth Heritage places
to exist in the same
document.
154 This section requires the Minister to review plans at least once in every
five year period and
ensure that the review addresses whether the plan is
consistent with the current Commonwealth Heritage management principles.
regulations.
156 The regulations may also prescribe obligations to
implement or give effect to the
Commonwealth Heritage management
principles. The section sets out under what
circumstances obligations can
be prescribed.
157 This section obliges a Commonwealth agency to provide reasonable
assistance to the Minister
for the Environment and Heritage and the
Australian Heritage Council in identifying and assessing the Commonwealth
Heritage values of any place it owns or controls.
Section 341ZA
– Heritage strategies
158 This section requires a Commonwealth
agency that owns or controls one or more places to
make a heritage
strategy within two years of the later of the commencement of this Act or after
it first owns or controls a place.
159 The strategy must set out the
period in which the agency will:
i conduct a program to identify Commonwealth
Heritage values
ii produce a register of Commonwealth Heritage
values
iii make management plans for Commonwealth Heritage
places
160 The agency should provide the Minister with a copy of the
strategy and any subsequent
amendments to the strategy.
161 The
Commonwealth agency should review its heritage strategy every three years and
provide
the Minister with a report of the review, in accordance with any
regulations.
Section 341ZB – Heritage assessments and
registers
162 A Commonwealth agency must identify Commonwealth Heritage
values for each place it owns
or controls and produce a register of values
for each place within the period mentioned in its heritage strategy. The agency
must provide the Minister with a report on the details of the program and a copy
of the register.
Section 341ZC – Minimising any impact on
heritage values
163 This section prescribes that before a Commonwealth
agency takes an action relating to a
Commonwealth Heritage place or a
National Heritage place, the agency must take into account the Commonwealth
Heritage values and/or National Heritage values of the place and minimise any
impact on the Commonwealth Heritage values and/or National Heritage values of
the place.
164 If the action is likely to have a significant impact on a
Commonwealth Heritage
place, the agency must also seek the Minister’s
advice under Section 341ZD.
Section 341ZD – Requirement to ask
Minister for advice
165 This section prescribes that a Commonwealth
agency must seek the Minister’s advice before
taking an action that
has, will have or is likely to have a significant impact on a Commonwealth
Heritage place. Advice need not be sought if an accredited management plan is in
force for that place and the action is provided for, and will be taken in
accordance with, that plan.
166 The Minister must consult with the
Australian Heritage Council in preparing the advice.
167 If the
Minister’s advice is that the action will not have a significant impact on
the
Commonwealth Heritage place or that it can be modified so that it will
not have a significant impact, and that advice is taken, the action may not need
to be referred for approval under Section 28 of the EPBC Act.
168 The
action still needs to be referred for approval under Section 28 of the EPBC Act
if the
advice is that the action is likely to have a significant impact on
the Commonwealth Heritage place. This is because compliance with Section 341ZD
does not remove the obligation to refer actions for approval that are likely to
have a significant impact on a Commonwealth Heritage place.
Commonwealth Heritage place by requiring that such values be protected by a
covenant if the land is sold or let by the Commonwealth or a Commonwealth
agency. However, there are exceptions if the inclusion of a covenant in the
contract is impracticable, or unnecessary because there are other means of
protecting those values, such as entry in a state heritage register for
example.
Section 341ZF - Minister’s advice on authorisation of actions
affecting Commonwealth
Heritage places
172 This section
prescribes that a governing authority of Christmas or Cocos (Keeling) Islands
must
ask the Minister for advice about an action that might have a
significant impact on a Commonwealth Heritage place before it decides whether to
give an authorisation for a person to take the action under a law applying in
the Territory. This means, for example, that the governing authority must ask
the Minister for advice before providing a planning or building approval for a
development that might have a significant impact on the heritage values of a
Commonwealth Heritage place.
173 The Minister must give the advice to the authority within a reasonable time.
174 The Minister must consult with the Australian Heritage Council in preparing the advice.
advice.
Subdivision G – Assistance for protecting
Commonwealth Heritage places
to help identify, promote, protect or conserve Commonwealth Heritage
places.
Heritage List.
Item 33 – At the end of subsection
367(1)
178 When making a plan for a Commonwealth reserve and the reserve
includes a National
Heritage place or a Commonwealth Heritage place, there
is a requirement to take into account the National Heritage or Commonwealth
Heritage management principles as the case may be, and to address the matters
that must be addressed by a management plan for a National Heritage or
Commonwealth Heritage place under section 324U or 341U.
Item 34
– Part 16 (heading)
179 This item substitutes a new heading for
Part 16 of the EPBC Act.
Item 35 – Subsection 391(3) (after
table item 11)
making a plan for managing a National Heritage place that is entirely within
one or more Commonwealth areas.
Item 36 – Subsection 391(3)
(after table item 13)
deciding whether to endorse a plan for managing a Commonwealth Heritage
place.
Item 37 – At the end of Part 16
the National Estate in making any decision under the EPBC Act to which the
information is
relevant.
Item 38 – After Subparagraph
495(2)(a)(i)
183 This item provides that the executive officers of a body
corporate will be, in some
circumstances, liable for offences by the body
corporate in relation to National Heritage places.
§ Australian Heritage
Council
§ Commonwealth Heritage
criteria
§ Commonwealth Heritage
List
§ Commonwealth Heritage management
principles
§ Commonwealth Heritage
place
§ Commonwealth Heritage
value
§ cultural heritage (removal of
definition)
§ environment (substitution of
definition)
§ heritage
value
§ indigenous heritage
value
§ National Heritage
criteria
§ National Heritage
List
§ National Heritage management
principles
§ National Heritage
place
§ National Heritage
value
§ natural heritage (removal of
definition)
§ place
SCHEDULE 2
– AMENDMENTS RELATING TO THE DIRECTOR OF INDIGENOUS HERITAGE
PROTECTION
Environment Protection and Biodiversity Conservation
Act 1999
Item 1 – After subsection 324G(4)
Protection on nominations for the National Heritage List that the Council
considers may have
indigenous heritage value.
Item 2 –
After paragraph 324J(8)(b)
Heritage Protection before making a decision on whether or not to enter a
place in the National Heritage List under subsections 324J(1) and
(5).
Item 3 – After subsection 341G(4)
Protection on nominations for the Commonwealth Heritage List that the
Council considers may have indigenous heritage value.
Item 4 –
After paragraph 341J(8)(b)
Heritage Protection before making a decision on whether or not to enter a
place in the Commonwealth Heritage List under subsections 341J(1) and
(5).
SCHEDULE 3 – TRANSITIONAL PROVISION: PLACES INCLUDED IN THE
REGISTER OF THE NATIONAL ESTATE
Item 1 – Places may be taken
to be included in the Commonwealth Heritage List
189 This item provides
that the Minister may determine that places on the Register of the National
Estate (including the Interim List) are to be transferred to the
Commonwealth Heritage List without a formal assessment by the Council. This can
occur only within six months of the new regime commencing.
Item 1 – Subsections 515(1) and (2)
190 The purpose of
this item is to allow the powers and functions of the Minister and the Secretary
to be delegated to the Director of National Parks. Currently section 515 of
the EPBC Act only allows the powers and functions of the Minister and the
Secretary to be delegated to the officers and employees of the Department. The
Director of National Parks is not necessarily an officer or employee of the
Department.