Bills Digest No. 14 2002-03
Australian Heritage Council Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Australian
Heritage Council Bill 2002
Date Introduced:
27 June 2002
House:
House of Representatives
Portfolio:
Environment and Heritage
Commencement:
The operational sections of the Bill commence
at the same time as Schedule 1 of the Environment and Heritage Legislation
Amendment Bill (No.1) 2002. Sections 1 and 2 of the Bill commence on Royal
Assent.
Purpose
To establish the Australian Heritage Council. This will
replace the existing Australian Heritage Commission (the Commission) operating
under the Australian Heritage Commission Act 1975.
Background
The Australian Heritage Council Bill 2002 (the Bill)
is part of a package of three Bills (the 'Heritage Bills') designed to
replace the Australian Heritage Commission Act 1975 (the AHCA).
The Bill establishes the Australian Heritage Council (the Council) and
sets out operational details such as membership, terms of office, meeting
procedures etc.
Further background is contained in the Bills Digest to
the main Bill of the three, Environment and Heritage Legislation Amendment
Bill (No.1) 2002.
New Section 4 formally establishes the Council.
New Section 5 sets out the functions of the Council.
Essentially these are:
- to make assessments of places as to whether they meet National Heritage
or Commonwealth Heritage criteria under the Environment Protection
and Biodiversity Conservation Act 1999
- to advise the Minister on the conservation and protection of places
included, or being being considered for inclusion, in the National Heritage
List or Commonwealth Heritage List; to nominate places for inclusion
in the National Heritage List or Commonwealth Heritage List
- to keep the Register of the National Estate
- to advise the Minister on a wide range of matters relating to research,
education, policy issues, funding, monitoring and the Commonwealth's
responsibilities for historic shipwrecks, and
- to perform any functions conferred on the Council by the Environment
Protection and Biodiversity Conservation Act 1999.
Two of the key issues in the Senate debate regarding
the 2000 version of the Bill were:
- Whether the Register of the National Estate should continue to have
statutory recognition, and
- What degree of independence the Council should have from the Minister,
particularly whether the Council should be able to undertake heritage
assessments and associated advisory functions only at the request of
the Minister as opposed to on its own initiative.
In relation to the first issue, the Bill now requires
the Register to be maintained by the Council, with places being to be
added or removed under a process outlined in the Bill: see new sections
22-24.
On the second issue, the Bill has been amended to remove
the proviso that the Council can only undertake heritage assessments and
associated advisory functions regarding prospective National and Commonwealth
Heritage places at the request of the Minister. By way of comparison,
the existing Australian Heritage Commission is virtually completely independent,
and makes the final decision as to whether a place should be listed on
the Register of the National Estate.(1)
New section 6 provides that the Council will consist
of a Chair and 6 other members, plus any associate members that have been
appointed. There can only be two associate members at any one time: new
subsection 7(4). The provision for associate members was not in the
2000 Bill. Whilst neither the Explanatory Memorandum nor the second reading
speech shed any light on the rationale for associate members, presumably
they are designed to be short-term appointments to supplement Council
expertise where required, in the same way ‘co-opted’ Commissioners are
provided for under the AHCA.
New section 7 sets out the qualifications of the
members. The Chair must have 'experience or expertise concerning heritage'.
Of the other six members, the Minister 'must ensure' that two have 'experience
or expertise concerning natural heritage', two have 'experience or expertise
concerning cultural heritage' and two have 'experience or expertise concerning
indigenous heritage'. Of this last group of two, both must be themselves
indigenous persons' and one must 'represent the interests of indigenous
people'. These requirements are the same as the 2000 Bill, except that
the 2000 Bill did not require the indigenous heritage representatives
to actually be indigenous persons. Associate members must have experience
or expertise in one of the three heritage categories.
New section 8 provides that Council members hold
office for term specified at their appointment. Appointments may be up
to 3 years (1 year for associate members), but a member cannot be appointed
for more than two consecutive terms. In theory, a member could be again
reappointed say a week after their second consecutive term ends. By comparison,
the AHCA requires a break for twelve months before reappointment after
two consecutive terms. All appointments are part-time, as they are under
the AHCA.
New section 10 prohibits a member from engaging
in any paid employment, or any other activity, that the 'Minister is satisfied
conflicts or may conflict with the proper performance of the member’s
duties'. This is a standard legislative provision for Commonwealth advisory
bodies.
New section 13 sets out the grounds on which the
Minister may terminate a member's appointment. They are standard grounds
for this type of body and include misbehaviour or physical or mental incapacity,
paid employment which conflicts or could conflict with the proper performance
of the duties of his or her office, or the member fails, without reasonable
excuse, to comply with the new section 19 disclosure requirement
of 'direct or indirect pecuniary interests'. Termination may occur is
the Minister is satisfied the member does not have the heritage experience
or expertise as required in new section 7.
New section 14 requires the Chair to hold at least
4 meetings a year. While the Chair normally calls meetings, the Chair
must call a meeting on the direction of the Minister or on the request
of a majority of members then holding office. This is the same as the
existing AHCA.
New section 19 obliges Council members to disclose
to the other members any 'direct or indirect pecuniary interests' in any
matter that is being considered, or about to be considered by the Council.
Disclosure must occur as soon as the interest becomes known to the member.
It is a standard legislative provision. The member must be excluded from
discussion and decision on the matter unless the Council decides otherwise.
New section 21 requires the Council to keep the
Register of the National Estate. Regulations may be made regarding the
detail about how it is to be kept.
As proposed under the Environment and Heritage Bill Legislation
Bill (No.1) 2002, the main legislative function of the Register will be
that Commonwealth Environment Minister will have to consider any relevant
information contained in the Register when making decisions in relation
to the application of existing sections 26 (actions impacting on Commonwealth
land) and 28 (actions by Commwealth agencies) under the Environment
Protection and Biodiversity Conservation Act 1999.
New section 22 sets out how places may
be included on the Register. The Register will initially consist of those
places that are on the existing register when the Bill first commences.
Before including another place on the Register, the Council must take
'all practicable steps' to identify and advise owners and occupiers, and
all indigenous persons who have rights or interests in the place of the
fact that the Council is giving consideration to including the place on
the register. Persons so advised must be given a reasonable opportunity
to comment, although new section 22 does not require that they
be actually invited to do so.
The Council can only include a place on the Register
if it considers it has a heritage value. New subsection 22(3) states
a place may have a heritage value because of:
(a) the place’s importance in the course, or pattern,
of Australia’s natural or cultural history; or
(b) the place’s possession of uncommon, rare or endangered
aspects of Australia’s natural or cultural history; or
(c) the place’s potential to yield information that
will contribute to an understanding of Australia’s natural or cultural
history; or
(d) the place’s importance in demonstrating the principal
characteristics of:
(i) a class of Australia’s natural or cultural places;
or
(ii) a class of Australia’s natural or cultural environments;
or
(e) the place’s importance in exhibiting particular
aesthetic characteristics valued by a community or cultural group; or
(f) the place’s importance in demonstrating a high
degree of creative or technical achievement at a particular period;
or
(g) the place’s strong or special association with
a particular community or cultural group for social, cultural or spiritual
reasons; or
(h) the place’s special association with the life or
works of a person, or group of persons, of importance in Australia’s
natural or cultural history.
However, this list is not exhaustive.
Under new section 23, the Council may remove a
place, or part of a place, if it considers it no longer has a heritage
value. It may also remove a value assigned to a place on the Register
if it considers that value no longer exists. The Council must go through
the same identification and notice process for removals as for inclusions
under new section 22
New section 24 provides that any person can request
that the Minister review a decision by the Council to include, not to
include, or to remove a place part of place or heritage value from the
Register. The Minister must then confirm the decision, or direct it to
include or remove the place. The Minister's decision must be based on
whether he or she 'considers' the place to have heritage value or not.
There is no express requirement that this be based on reasonable grounds.
The Minister must give written reasons for his or her decision within
a reasonable time of anyone asking for them.
New section 25 allows regulations to be made,
including 'prescribing matters necessary or convenient' for the carrying
out, or giving effect' to, the Bill.
- Under the Bill, the Council remains the decision-maker in relation
to the Register of the National Estate.
Angus Martyn
23 September 2002
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2002
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