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Heritage Amendment Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the main purpose of the Bill, which is to amend the
Heritage Act 1995 (the Heritage Act) in relation to the process
of registration of places or objects, to create a new offence of
failing to comply with conditions on a heritage permit, to clarify
that financial securities may be applied to ensure compliance
with conditions on a heritage permit, to ensure the certificate
provisions refer to World Heritage Environs Areas, and to
remove references to the Historic Shipwrecks Advisory
Committee.
Clause 2 provides for the commencement of the Bill on a day or days to be
proclaimed or 1 December 2008, whichever occurs first.
Sections 4 to 8 will come into operation on the same day.
Clause 3 defines the term Principal Act to mean the Heritage Act 1995.
Clause 4 amends section 38 of the Heritage Act by inserting new
subsections (2A) and (2B).
New section 38(2A) provides for any person to make a written
submission to the Heritage Council in relation to a notice by it
under the Act. The Heritage Council is required to give notice
if, despite a recommendation of the Executive Director to the
contrary, it considers a place or object may be of cultural heritage
significance, and also when it intends to conduct a hearing into a
recommendation of the Executive Director that a place or object
should not be included in the Heritage Register.
New section 38(2B) requires that any written submission must be
made within 60 days after the date notice is given by the Heritage
Council.
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Clause 5 inserts a new section 39 into the Heritage Act setting out a new
procedure for the Heritage Council in cases where the Executive
Director recommends not including a place or object in the
Heritage Register, and no objections to the recommendation are
received.
New section 39(1) states that this section applies in cases where
the Executive Director recommends not including a place or
object in the Heritage Register, and no objections to the
recommendation are received.
New section 39(2) requires that if no objections are received to
the Executive Director's recommendation not to include a place
or object in the Heritage Register, and the Heritage Council does
not consider the place or object may be of cultural heritage
significance, the Heritage Council must determine the matter in
accordance with section 42 within 40 days of the closing date for
submissions.
New section 39(3) covers the situation where, despite the
Executive Director's recommendation that a place or object not
be included in the Heritage Register, the Heritage Council
considers that a place or object may be of cultural heritage
significance. In such cases the Heritage Council must within
60 days after the end of the submission period, give notice that
the Executive Director has recommended a place or object
specified in the notice not be included in the Heritage Register,
that the Heritage Council considers the place or object may be of
cultural heritage significance, and that written submissions may
be made to the Heritage Council in relation to this matter within
60 days of the notice.
New section 39(4) specifies that notice must be given in writing
to the owner, the nominator of the place or object; the relevant
municipal council, and any person who made a submission
supporting the Executive Director's recommendation. A notice
must also be published in a newspaper circulating generally in
the area in which the nominated place or object is located.
New section 39(5) requires that at the end of the notification
period, the Heritage Council must examine each submission
made in relation to the recommendation.
New section 39(6) requires that if no submissions are received
within the required time the Heritage Council must determine the
matter in accordance with section 42 within 40 days after the end
of the submission period.
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New section 39(7) provides that the Heritage Council may ask a
person making a submission for more information in relation to
the submission.
New section 39(8) provides that the Heritage Council after
considering the submission may conduct a hearing into whether
or not the place or object is of cultural heritage significance; or
determine the matter without a hearing subject to subsection (9).
New section 39(9) requires the Heritage Council to conduct a
hearing if the National Trust or a person with a real or substantial
interest in the place or object requests a hearing in its submission
under section 38(2A).
Clause 6 substitutes a new section 40 into the Heritage Act setting out a
new procedure for the Heritage Council when the Executive
Director recommends a place or object not be included in the
Heritage Register, and submissions are received objecting to this
recommendation.
New section 40(1) states that this section applies in cases where
the Executive Director recommends not including a place or
object in the Heritage Register, and one or more submissions are
received objecting to this recommendation.
New section 40(2) requires that in these cases the Heritage
Council must give notice within 14 days after the end of the
submission period that the Executive Director has recommended
that a place or object specified in the notice should not be
included in the Heritage Register; that submissions have been
received objecting to this recommendation; that a hearing will be
conducted; and written submissions may be made to the Heritage
Council in relation to this matter within 60 days of the notice.
After the end of the latter submission period the Heritage Council
must conduct a hearing into whether or not the place or object
should be included in the Heritage Register.
New section 40(3) specifies that notice must be given in writing
to the owner, the nominator of the place or object; the relevant
municipal council, and each person who made a submission in
relation to the Executive Director's recommendation. A notice
must also be published in a newspaper circulating generally in
the area in which the nominated place or object is located.
Clause 7 substitutes a new section 41 into the Heritage Act setting out a
new procedure for the Heritage Council when the Executive
Director recommends a place be included in the Heritage
Register, inserts a new section 41A setting out the role of the
Executive Director in determination of recommendations, and
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inserts a new section 41B in relation to the sale of land or object
subject to a recommendation.
New section 41(1) states that this section applies in cases where
the Executive Director recommends a place or object be included
in the Heritage Register.
New section 41(2) requires that if no submissions are received in
relation to the Executive Director's recommendation the Heritage
Council must determine the matter in accordance with section 42
within 40 days of the end of the submission period.
New section 41(3) requires that if submissions have been
received the Heritage Council must examine each submission
made within the required time.
New section 41(4) provides that the Heritage Council may ask a
person making a submission for more information in relation to
the submission.
New section 41(5) provides that after considering each
submission the Heritage Council may conduct a hearing into
whether or not the place or object should be included in the
Heritage Register; or determine the matter without a hearing
subject to subsection (6).
New section 41(6) requires the Heritage Council to conduct a
hearing if the National Trust or a person with a real or substantial
interest in the place or object requests a hearing.
New section 41A is a remaking of the current section 41(3) and
requires that the Executive Director must provide any
information requested by the Heritage Council in relation to a
recommendation, and allows the Executive Director to be heard
or represented at any hearing into a recommendation.
New section 41B is a remaking of the current sections 41(4), (5)
and (6).
New section 41B(1) provides that if any land or object which is
the subject of a recommendation has been offered for sale by
auction, the Heritage Council may with the agreement of the
owner defer the consideration of the recommendation until after
the auction.
New section 41B(2) requires that the owner of the land or object
must inform the purchaser of the deferral of the consideration of
the recommendation.
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New section 41B(3) provides that if the owner of land or an
object which is subject to a nomination fails to disclose to a
purchaser the deferral of the consideration of the
recommendation, the contract of sale is not invalid but is
voidable at the option of the purchaser.
Clause 8 amends section 42 of the Heritage Act.
Subclause (1) substitutes section 42(1).
New section 42(1) details the decision powers of the Heritage
Council, to reflect the new Heritage Council registration
procedures. The Heritage Council after considering a
recommendation in respect to a place or object, any submissions
and conducting any hearing into those submissions may
determine that a place or object is of cultural heritage
significance and should be included in the Heritage Register; that
part of a place is of cultural heritage significance and should be
included in the Heritage Register; or determine that a place or
object, or part of a place is not of cultural heritage significance
and does not warrant inclusion in the Heritage Register. In the
case of a recommendation in respect of a place, refuse to register
the place and refer the recommendation and submissions to the
relevant planning authority for consideration for an amendment
to the planning scheme, or determine that it is more appropriate
for steps to be taken under the Planning and Environment Act
1987 or by any other means to protect or conserve the place.
Subclause (2) repeals section 42(3), which provided for the
Heritage Council's provisional determination decisions to be
dealt with as if it were a recommendation of the Executive
Director, to reflect the new Heritage Council registration
procedures. This removes the current provision in the Act which
can lead to the double hearing process.
Subclause (3) now inserts the words "or 38(2A)" after "38(1)" in
section 42(5) which requires that if a member of the Heritage
Council has made a submission in relation to either an Executive
Director or Heritage Council recommendation, they must not take
part in the consideration or determination of the Heritage Council
on that matter.
Clause 9 amends section 50 of the Heritage Act to provide that a certificate
issued under section 50 can disclose whether or not the place is in
a World Heritage Environs Area.
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Clause 10 amends section 74 of the Heritage Act by substituting a new
section 74(4) and adding a new section 74(4A) in relation to the
issue of permits.
New section 74(4) enables the Executive Director, in granting a
permit, to impose a condition requiring financial security to
ensure the satisfactory completion of the works or compliance
with a condition imposed on a permit.
New section 74(4A) provides that the form and amount of
security must be determined by the Executive Director having
regard to the nature and extent of the work referred to in the
permit, or in the case of a condition on a permit, the nature of the
condition to be complied with.
Clause 11 inserts a new section after section 74A into the Heritage Act to
require that a person carrying out works or activities for which a
permit has been issued under section 74 must ensure the works
and activities comply with the permit and any terms and
conditions of the permit. The maximum penalty is 120 penalty
units for a natural person and 600 penalty units for a body
corporate.
Clause 12 repeals Division 2 Part 5 of the Heritage Act which provided for
the establishment of the Historic Shipwrecks Advisory
Committee which is to be abolished. These provisions were
carried over from the former Historic Shipwrecks Act 1981, but
are inconsistent with the provisions under section 10 of the Act
for the Heritage Council to appoint committees. A new
committee will be appointed under section 10 of the Act.
Clause 13 repeals section 99 of the Heritage Act which required the
Heritage Council to consult the Historic Shipwrecks Advisory
Committee before determining whether to include the remains of
a ship or articles in Victorian waters in the Heritage Register.
Clause 14 repeals section 206 of the Heritage Act, which was a transitional
provision in relation to the Historic Shipwrecks Act 1981.
This section provided for the abolition of the Historic Shipwrecks
Advisory Committee under the Historic Shipwrecks Act 1981
and for members to be deemed appointed to the committee under
the new Heritage Act.
Clause 15 inserts a new Division 7 after Division 6 in Part 10 of the
Heritage Act. Division 7 provides transitional provisions arising
from the Heritage Amendment Act 2008. This ensures that any
recommendations made by the Executive Director immediately
before the commencement of the sections 4 to 8 of the Heritage
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Amendment Act 2008 will continue to be dealt with under the
provisions of the unamended Heritage Act.
Clause 16 amends Schedule 1 of the Heritage Act. Clause 13(1)(c) of the
Schedule which provided for the disclosure of interests for
members of the Historic Shipwrecks Advisory Committee is
repealed.
Clause 17 provides for the automatic repeal of this amending Act on
1 December 2009. The repeal of this Act does not the continuing
operation of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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