Proposed Heritage Laws

Article by John Taberner,Tim Power, Mark Dwyer, Tony van Merwyk and Michael Back

Three Bills before Federal Parliament look set to reform the existing regime for Commonwealth heritage protection.¹

The package of Bills consists of:

• Environment and Heritage Legislation Amendment Bill (No.1) 2002
• Australian Heritage Council Bill 2002
• Australian Heritage Council (Consequential and Transitional Provisions) Bill 2002.

This article considers the principal amendments proposed by the Environment and Heritage Legislation Amendment Bill (No.1) 2002 (EHLA Bill).

Most significantly, the EHLA Bill proposes to amend the Environment Protection and Biodiversity Act 1999 (EPBC Act) to include provisions that identify, protect and manage places for inclusion in proposed National and Commonwealth Heritage Lists. The EHLA Bill also proposes to extend the scope of conservation agreements and bioregional plans under the EPBC Act to include the heritage values of places included on the Lists.

At the Federal level, the management and protection of the national estate is currently administered by the Australian Heritage Commission under the Australian Heritage Commission Act 1975 (AHC Act).

The AHC Act gives the Australian Heritage Commission the power to enter a place on the Register of the National Estate. A place may be entered on the Register if it has aesthetic, historic, scientific or social significance or other special value for future generations as well as the present community.

The entry of a place on the Register of the National Estate does not, however, place any direct legal constraints or controls over the actions of States and local governments, or private owners.

The AHC Act only imposes obligations in respect of the National Estate on Commonwealth Ministers, departments, authorities and companies owned by the Commonwealth. These obligations include:

• to not take any action that has an adverse effect on any part of the National Estate unless there is no feasible and prudent alternative
• to take all reasonable measures to minimise the adverse effect if there is no feasible and prudent alternative
• to inform the Australian Heritage Commission if it takes any action that might affect, to a significant extent, part of the National Estate.

The EHLA Bill proposes to amend the EPBC Act to establish the National Heritage List and the Commonwealth Heritage List. At this stage, the Register of the National Estate will not be replaced by these Lists, but will be retained in a modified form (discussed below).

The National Heritage List will comprise places of national heritage significance (whether or not owned by a Commonwealth entity), whereas the Commonwealth Heritage List will only include places of heritage significance that are in a Commonwealth area or are owned or controlled by a Commonwealth entity outside the Australian jurisdiction.

Unlike the existing regime, it is proposed that the Minister for Environment will decide whether a place will be entered on the National Heritage List. The Minister may only include a place if he or she is satisfied that the place has one or more 'National Heritage values'.

These National Heritage values will be derived from 'National Heritage criteria' to be prescribed by regulation. The EHLA Bill requires the regulations to provide criteria that deal with:

• historic heritage values of places
• indigenous heritage values of places
• natural heritage values of places.

The criteria may also relate to 'other heritage values'.

While no regulations have been tabled, draft criteria for National Heritage values can be found on the Environment Australia website. The draft criteria suggest a place must be a component of the natural or cultural environment in Australia that is of 'national or other special significance or value to Australia for future generations as well as for the present community' because of any one of the matters listed in the draft criteria.

Consequently, a place will have to demonstrate that it is nationally significant against one of these values if it is to be placed on the National Heritage List.

In making this decision, the Minister must ask the Australian Heritage Council for an assessment of the place's National Heritage values and may invite public comment on the proposed inclusion of the place in the National Heritage List.

It is not possible to predict how many places will be placed on the National Heritage List, but we understand that in the preliminary stages there are likely to be far fewer places than are presently listed on the Register of the National Estate.

The EHLA Bill proposes to enhance protection of listed places by introducing a framework of management plans into the EPBC Act.

For places that are listed on the National Heritage List and within a Commonwealth area or owned/controlled by a Commonwealth agency, the Minister will be under an obligation to make a written plan to protect and manage the place. The plan must address the National Heritage values of a place and identify mechanisms that will deal with actions that threaten these National Heritage values

Only the Commonwealth and Commonwealth agencies are proposed to be bound by management plans. Furthermore, there is no obligation on the States, Territories and private owners to make a management plan for listed places. The EHLA Bill does, however, require the Commonwealth to use its best endeavours to ensure a management plan is prepared and implemented for listed places that are not within a Commonwealth area. To facilitate this, the EHLA Bill intends to give the Commonwealth the power to give financial and other assistance to States, Territories and any other person to achieve this aim.

The Minister may list a place on the Commonwealth Heritage List if it is:

• entirely within a Commonwealth area, or
• outside the Australian jurisdiction and is owned or leased by the Commonwealth or a Commonwealth agency, and
• has one or more 'Commonwealth Heritage values'.

As is the case with National Heritage values, Commonwealth Heritage values will be derived from criteria to be prescribed by the regulations that are concerned with the natural, indigenous and historic heritage values of places. The draft criteria can be found here. Furthermore, the Minister must ask the Australian Heritage Council for an assessment of the place's Commonwealth Heritage values and may invite public comments on the proposed inclusion of the place in the Commonwealth Heritage List.

The EHLA Bill proposes a transitional process to allow the Minister to transfer places on the Register of the National Estate to the Commonwealth Heritage List that are within a Commonwealth area. The Minister has six months to do so (from the date of enactment), and we understand that it is likely that most eligible places will be transferred.

The EHLA Bill includes an obligation on a Commonwealth agency to make a written plan to protect and manage the Commonwealth Heritage values of a Commonwealth Heritage place it owns or controls. A plan must address the Commonwealth Heritage values of the place and it should identify mechanisms that will deal with actions that threaten these Commonwealth Heritage values. Once complete, the plan will be binding on the Commonwealth and Commonwealth agencies.

In formulating a plan, a Commonwealth agency will have to ask the Australian Heritage Council for advice on the proposed plan.

Once the plan is made, the Commonwealth agency will then be able to ask the Minister to formally endorse the plan.

The EHLA Bill takes heritage protection further than the existing regime by introducing civil penalty and criminal offence provisions into the EPBC Act for actions that have, or are likely to have, a significant impact on the heritage values of National or Commonwealth Heritage places.

However, the EHLA Bill restricts the scope of these proposed provisions to certain situations and classes of persons.

Under the amended EPBC Act, the following classes of persons will be potentially liable under a civil or criminal action if they take an action that has, will have, or is likely to have, a significant impact on the National Heritage values of a place listed on the National Heritage List:

• a constitutional corporation, the Commonwealth or a Commonwealth agency
• a person taking an action for the purposes of trade or commerce between States, Territories, a State and a Territory or between Australia and another country
• a person taking an action in a Commonwealth area or a Territory
• a person taking an action impacting on the indigenous heritage values of a National Heritage place
• a person taking an action in an area in respect of which Australia has obligations under Article 8 of the Convention on Biological Diversity
• a person taking an action outside the Australian jurisdiction.

The maximum civil penalty for any of the above will be $550,000 for an individual and $5,500,000 for a body corporate. The criminal penalty will be imprisonment for not more than seven years and/or a fine of not more than $46,200.

It will be at the discretion of Environment Australia to decide whether to prosecute under the civil or criminal standard. The EHLA Bill does, however, allow the imposition of the criminal offence provisions if the offending person/body was 'reckless' in the commission of the offence.

The following exceptions are proposed to apply to the above civil penalty and criminal offence provisions:

• where the Minister has given approval for the action under the EPBC Act
• where a Ministerial direction or a bilateral agreement under the EPBC Act declares that the action does not require an approval
• where the Minister decides under the EPBC Act that the action does not need approval, or
• the action is an action that is subject to a special environmental assessment process under the EPBC Act.

The EHLA Bill proposes to amend the definition of 'environment' in the EPBC Act to include the heritage values of places. Accordingly, the existing civil penalty and criminal offence provisions in the EPBC Act relating to the protection of the environment from proposals involving the Commonwealth will apply to actions that will have, or are likely to have, a significant impact on the Commonwealth Heritage values of Commonwealth Heritage places.

Under the amended EPBC Act, a person will be prohibited from taking an action on Commonwealth land, or anywhere outside the Australian jurisdiction, that has, will have or is likely to have a significant impact on the environment (that includes Commonwealth Heritage values) in a Commonwealth Heritage place.

It will be at the discretion of Environment Australia to prosecute under the civil penalty or criminal offence provisions. The 'reckless' component of the criminal offence provisions will also have application.

The civil penalty is proposed to be $110,000 for an individual or $1,110,000 for a body corporate. The criminal penalty is imprisonment for a term not more than two years and/or a fine of not more than $13,200.

Unlike the penalties for breaching provisions relating to the National Heritage values of National Heritage places, there will be no criminal offence provisions for actions taken by the Commonwealth or a Commonwealth agency. Only the civil penalty will apply.

With one addition, the same exceptions to civil penalty and criminal offence provisions against the National Heritage values of National Heritage places will also apply to offences against the Commonwealth Heritage values of Commonwealth Heritage places.

The additional exception, already in the EPBC Act, refers to a power of the Minister to declare in writing that the action does not need approval. This exception only will apply to the actions of the Commonwealth and Commonwealth agencies.

The Register of the National Estate is proposed to be retained in a modified form and will be administered by the Australian Heritage Council.

Although the Register will have no statutory force, the EHLA Bill proposes to require the Minister to have regard to information on the Register in making any decision under the EPBC Act where relevant. As such, the Register will be used as a source of information in considering, for example, the effects of proposed actions under the EPBC Act.

As previously noted, the EHLA Bill also proposes to give the Minister the power to transfer places on the Register of the National Estate to the Commonwealth Heritage List that are within a Commonwealth area. The Minister has six months to do so from the date of enactment, and we understand that it is likely that most eligible places will be transferred.

There is no equivalent transitional provision in the EHLA Bill for places on the Register to be transferred to the National Heritage List.

The EHLA Bill proposes to amend the EPBC Act to provide for voluntary conservation agreements between the Commonwealth and persons with respect to protecting heritage values.

Conservation agreements are agreements that have the primary object of enhancing the conservation of biodiversity, heritage values, or both of these things. They may require private owners and others to do or not to do certain things and are binding on the Commonwealth, all other parties to the agreement, and any parties that gain an interest in any part of the area after the agreement is entered into.

In return for entering into a conservation agreement, the Commonwealth may provide financial, technical or other assistance to other parties to the agreement.

The EHLA Bill proposes to amend the EPBC Act to allow the heritage values of places to be included in bioregional plans.

Bioregional plans are plans prepared by the Commonwealth for bioregions within Commonwealth areas, or jointly prepared by the Commonwealth and a State or Territory for bioregions that are partly in a Commonwealth area and partly in a State or Territory. The bioregional plans can deal with a range of things including biodiversity, economic and social values, and community involvement.

Once a bioregional plan is prepared, the Minister must have regard to the plan when making any relevant decision under the EPBC Act.

Under the EHLA Bill, within six months after the commencement of the Bill the Minister for Environment may include a property inscribed on the World Heritage List on the National Heritage List.

The three Bills currently before Federal Parliament, if passed, will operate to enhance, to some extent, the protection and management of national and Commonwealth heritage places.

Most significantly, private owners, the Commonwealth and Commonwealth agencies will need to be aware of possible new obligations under civil penalty and criminal offence provisions in the EPBC Act for actions that have, or are likely to have, a significant impact on the heritage values of national and Commonwealth Heritage places.

Footnote

This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.