Bills Digest No. 138  1999-2000Sydney Harbour Federation Trust Bill 1999


Numerical Index | Alphabetical Index

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
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Sydney Harbour Federation Trust Bill 1999

Date Introduced: 8 December 1999

House: Senate

Portfolio: Environment and Heritage

Commencement: On proclamation, or failing that, six months after receiving Royal Assent.

 

Purpose

To establish a Trust to take on planning and management responsibilities for approximately ten years over a number of former defence properties on Sydney Harbour foreshore and islands.

Background

In delivering the 1997-98 budget, the Commonwealth Government announced that it would establish a $1 billion Federation Fund to fully or partly finance projects of national significance as part of centenary activities.(1) More specifically, projects were to be selected 'on the basis that they will generate jobs in the construction phase and make a significant and ongoing contribution to Australia and the Australian economy'.(2) Other criteria were apparently contained in correspondence from the Prime Minister to Premiers and Chief Ministers but these do not appear to be on the public record.

Following negotiations with the NSW government during 1997 and 1998, the Commonwealth included a commitment in its 1998 election platform to

The sites covered by this commitment were:

  • Middle Head and Georges Heights, two contiguous sites totalling 100 hectares
  • a 74 hectare site on North Head which is surrounded by Sydney Harbour National Park
  • two smaller parcels at Woolwich, west of the Harbour Bridge on the north side of the Harbour, and
  • Cockatoo Island, a former naval base and industrial centre.

Of the $90 million, $50 million was to be allocated to the Department of Defence to meet costs associated with relocation from the sites and to remove surplus buildings(4) with the remaining $40 million to be allocated to the Trust to 'support' the clean up of contaminated areas on Cockatoo Island.(5) The Defence Department was also to receive an additional $6 million to establish public access to parts of the Garden Island naval base.(6)

The Federal ALP opposed the proposal for the Sydney Harbour project at the time of the 1998 election on the grounds that it was an 'inappropriate' use of the Federation Fund given that the Defence Department would be a direct beneficiary.(7)

Following the re-election of the Coalition in October 1998, an Interim Trust was established in March 1999 'to commence planning and consultation' and an Executive Director was appointed later in August.(8)

An exposure draft of the Sydney Harbour Federation Trust Bill (the Bill) was released for public comment on 15 August 1999 for a period of one month. While a number of submissions called for substantial amendments, the Bill was introduced into Parliament virtually unchanged(9) with the Government saying that it intended 'to introduce any amendments to the Bill arising from the public consultation period during the committee stages of the debate.'(10) No reason appears to have been given for this relatively unusual approach, although the release of the exposure draft was three months later than the timetable set down by Senator Hill in March 1999.(11) The Bill is currently being reviewed by the Senate Environment, Communications, Information Technology and the Arts Committee which is due to report on 3 April 2000.

Funding the Trust's operations: commercial activities and public access to Trust land

In 1999, a loan of $770,000 was provided to the Interim Trust by the Commonwealth to cover set-up and other initial costs.(12) Approximately 30% of this had been expended to the end of 1999, with the loan due to be repaid by 1 April 2002.(13) In addition, as noted above, the Trust has been allocated $40m to support the clean up of Cockatoo Island. However, the Trust has not been given any further funding to support the remediation or maintenance of other sites. This reflects the fact that the Trust is intended to be essentially self-funding and thus presumably will not receive any ongoing Government budget allocation to cover its operations. According to the Governments 1998 policy statement the Trust:

will finance other rehabilitation works and the enhancement of the sites from commercial activities and the redevelopment of parts of the sites. In considering commercial proposals, the Trust will be required to give paramount consideration to the public amenity and the aesthetic, heritage and conservation values of each site. The Trust will not be required to generate a profit for the Commonwealth government.(14)

In the longer term, it is unclear what funds the Trust will actually require to finance its activities. It appears that no comprehensive estimation has been done on the cost for 'full' remediation of the five sites for which the Trust will have responsibility.(15) However, in the case of Cockatoo Island, it is understood that the $40 million figure was primarily based on a remediation cost estimate study commissioned by the Commonwealth and completed in 1993.(16) The study apparently examined a range of clean-up options, which varied from a low figure of a little under $30 million if the island was used for certain industrial purposes up to a high figure of over $66 million for what was described as 'residential / mixed use scenario'. The Woolwich site is also contaminated, mainly around the former dry dock and in some areas where landfill was used for land reclamation.

Under the Bill, the Trust has capacity to sell land. A number of the submissions from community groups on the exposure draft exposure Bill express considerable concern about whether the Trust will be forced to do this to fund its responsibilities - that budgetary reality will in time erode the 'paramount consideration' policy commitment given by the Government above.(17) The NSW Premier has reportedly also expressed concern about the funding issue in a December 1998 letter, saying that 'the trust will have no alternative but to consider proposals that are totally unacceptable, such as selling off prime foreshore land for private residential development'.(18) This position has apparently been reiterated in the NSW Government's submission to the current Senate Committee review into the Bill.(19)

It appears that only parts of Woolwich and Cockatoo Island would be subject to any sale, given that the Commonwealth has committed to the ultimate transfer of the North Head, Middle Head and Georges Heights sites to the NSW Government for inclusion in the Sydney Harbour National Park.(20) In relation to Woolwich and Cockatoo Island, the Commonwealth has said:

...following the [Trust] management planning process and while we have no final view, it is our intention that the ultimate ownership of these sites will be determined on the basis of the best outcome in maintaining these sites as community assets.(21) (italics added by author).

There has been no elaboration on this statement by either by the Government or the Interim Trust.(22) However, the issue will presumably be fully addressed in the near future. A financial plan has been commissioned by the Interim Trust(23) and is presumably looking at possible income streams for the Trust.

Should the Department Defence pay for the cost of rehabilitation of the contaminated sites?

Some of the submissions on the exposure draft Bill also have questioned the appropriateness of Federation Fund money being used for rehabilitation, the point being that the Defence Department should assume financial liability for this before handing over the sites to the Trust.(24)

There is no Commonwealth legislation that directly regulates contaminated sites issues on Commonwealth land. While NSW like most other States has legislation that incorporates the concept of 'polluter pays' in relation to contaminated lands, it is unlikely that the defence lands are subject to these laws.(25) However, in the past the Commonwealth has agreed that 'the same rules for attaching liability should apply to Federal, State and Territory government agencies and local governments which cause contamination, or own or occupy a risk site as apply to private parties'.(26)

On the question whether the Defence Department itself(27) should be at least administratively responsible for the clean-up, there is no clear Commonwealth position, in part because there is no whole-of-government policy on contaminated Commonwealth-owned or occupied sites. The development of such a policy was recommended by the Australian National Audit Office in its 1996 report on the environmental management of Commonwealth sites(28) and again by a House of Representatives committee report in 1997.(29) In April 1999 the Government agreed 'in principle' to develop a policy, but this appears to be largely on hold pending the Commonwealth's implementation of the National Environment Protection (Assessment of Site Contamination) Measure, made in December 1999. As its title implies, the Measure focuses on assessing and controlling contamination rather than setting out specific principles on financial liability for decontamination of sites.(30)

Linkages with the existing NSW planning and management regime

In recent years, the NSW Government has attempted to promote a more coordinated approach to planning and management of Sydney Harbour foreshore. Initiatives include:

  • The establishment of the Sydney Harbour Foreshores Authority (SHFA). The SHFA primarily concentrates on land management, rather than foreshore planning, which is done by the NSW Department of Urban Affairs and Planning (DUAP). Garden Island is the only site covered by the Trust arrangements which falls under the auspices of the SHFA.
  • State Environmental Planning Policy No. 56 - Sydney Harbour Foreshores and Tributaries (SEPP 56). Made in 1998, this planning instrument provides that the NSW Minister for Urban Affairs and Planning is the sole consent authority for 14 sites of 'State significance'. Such sites include Garden Island, Cockatoo Island, the sites at Woolwich and land on Middle Head adjacent to the Defence lands. Master plans must be developed for these sites and development must be consistent with such plans.(31) However, in relation to the prospective Trust lands, master plans have been developed for Inner Harbour (32) only.
  • Regional Environmental Plan No.23 - Sydney and Middle Harbour (REP 23). Made in 1990 and subsequently amended, this planning instrument applies to the harbour waterways, islands and foreshores.

Clearly, there is a degree of overlap between these initiatives and the responsibilities of the Sydney Harbour Federation Trust with regard to Trust lands. In its submission on the exposure draft of the Bill, the SHFA commented that:

There are a number of government bodies responsible for Sydney Harbour foreshore land and the establishment of yet another entity, the Sydney Harbour Federation Trust (the Trust), seems to contradict the positive steps taken recently by the NSW State Government to provide greater coordination in the planning and management of Sydney's harbour foreshores, including a decrease in the number of authorities.

Due to the Sydney Harbour Federation Trust's standing as a Commonwealth body, State and local government will have no say over any of the planning and management of the land. This has the potential to create conflict where opposing management or community values may apply for adjoining areas. It may also create difficulties and inconsistencies due to the differing functions and roles of the various government bodies and the application of their relevant legislation.

The lack of compliance with NSW laws will have a major impact on the ability of the State to control future use and management, access, public alienation, built form and site development. There are inherent problems in setting up alternative planning systems to the NSW system and in excluding NSW laws from applying to the sites.

The creation of the Trust at Commonwealth Government level does not assist in the integration of good urban design and planning decisions for the Harbour, but continues the ad-hoc management of neighbouring pieces of land. This is not in the best interests of the people of NSW.

It is hoped that the management of the land under Commonwealth legislation will not continue the segregation of the land from the rest of the Harbour foreshore. This currently occurs with Defence land, which is why it is raised in this instance.(33)

Similarly, the NSW Department of Urban Affairs and Planning commented:

The Management Plan process substitutes for known and accepted instruments under NSW system. This is a problem for future users and owners (whether NSW government or lessees or others who may get title) as when land passes from the Trust, NSW planning and provisions laws will and need to apply....[the] content of Management Plans [under Part 5 of the Bill] has no reference to site context or achieving outcomes on land related to overall Vision and Strategy for Sydney Harbour as a whole.(34) Plans should be Master Plans in accordance with SEPP 56 (or its replacement) which articulate State policies/principles for all of Harbour. Management Plans should accord with Environmental Planning and Assessment Act and/or National Parks and Wildlife Act.(35)

This overlap may be of cause for concern given the 1997 Heads of Agreement on Commonwealth/State Roles and responsibilities for the Environment.

Management plans for Trust lands

The principal instrument for the strategic management of Trust lands are the management plans proposed under Part 5 of the Bill. The Trust must prepare(36) such plans within 18 months of any land being gazetted as Trust land,(37) except where this time is extended by the Commonwealth Environment Minister ('the Minister').

The Bill provides that management plans must contain:(38)

  1. a history and description of the management plan area;

(b) an assessment of the environmental and heritage significance of the area;

(c) objectives for the management of the area;

(d) policies in respect of the management of the area;

(e) an identification of proposed land uses in the area or parts of the area;

(f) guidelines on the implementation of the management plan;

(g) anything else required by the regulations.

The preparation of the management plans involves a fairly standard consultation process. The Trust must provide notices in the Gazette and local papers of the intent to prepare a draft plan and then again when the draft plan has been completed. The public comment period for both the intent and draft plan stage periods is a minimum of one month. The Bill provides that in preparing management plans, the Trust 'must take into account' submissions lodged within the public comment period.

In developing management plans, the Trust may also draw upon the advice of Trust community advisory and technical advisory committees.(39) The Trust 'must consider any advice or recommendation of the relevant committee'.

The Operation of the Trust

The Trust consists of a chairperson and five other members. Given that NSW has not yet recommended its two nominees, the Interim Trust has only four members at present.(40) The criterion for appointment is that the Minister must be 'satisfied' that the person has qualifications and experience relevant to a field related to the Trust's functions.

The major full-time position of the Trust is the Executive Director who is appointed (and may be terminated) by the Minister on recommendation by the Trust. The trust may delegate any of its powers to the Executive Director, Senior Executive Service Office of the Department of Environment and Heritage or Trust employee (but not a consultant).

The Trust may regulate its proceedings at its meetings as it chooses, subject to Ministerial direction.(41) To date, the proceedings of the Interim Trust meetings have been confidential. At meetings, decisions are made by majority of members present and voting, assuming a quorum is reached. The Trust may also make decisions out of session if a majority of members 'indicate agreement with the resolution in accordance with the method determined by the Trust', providing the majority constituted a quorum.(42)

The Trust is supported by community advisory committees and a technical advisory committee. A community advisory committee must be formed for every management plan area and has a broad mandate for providing general advice and recommendations. The technical advisory committee advises on all management plan areas in relation to environmental and heritage assessments, rehabilitation and decontamination, planning and development. Committee membership and the way they carry out their functions (including meeting procedures) is at the discretion of the Trust, except that in relation to the technical advisory committee the Trust must to satisfied that candidate members have 'qualifications and experience relevant to a field related to the committee's function'.

Main Provisions

Clause 5 establishes the Trust as a body corporate. It may sue and be sued in its corporate name.

Clause 6 sets out the proposed objects of the Bill. These are:

(a) to ensure that management of Trust land contributes to preserving the amenity of the Sydney Harbour region

(b) to conserve the environmental and heritage values of Trust land

(c) to maximise public access to Trust land

(d) to establish and manage suitable Trust land as a park on behalf of the Commonwealth as the national government

(e) to co-operate with other Commonwealth bodies that have a connection with any Harbour land in managing that land, and

(f) to co-operate with New South Wales and local government bodies in furthering the above objects.

Clause 7 sets out the proposed functions of the Trust. These are:

(a) to hold Trust land for and on behalf of the Commonwealth

(b) to undertake community consultation on the management of Trust land

(c) to develop draft management plans in respect of Trust land and any other Harbour land in furthering the objects, and performing other functions, of the Trust

(d) to rehabilitate, remediate, develop, enhance and manage Trust land, by itself or in co-operation with other institutions or persons, in accordance with the management plans

(e) to manage Trust land in a way that establishes a sustainable financial base in furthering the objects, and performing other functions, of the Trust

(f) to make recommendations to the Minister on:

(i) management plans, and

(ii) the proposed transfer of any Trust land

(g) to promote appreciation of Trust land

(h) to provide services and funding to other Commonwealth bodies in furthering the objects, and performing other functions, of the Trust, and

(i) anything incidental to or conducive to the performance of its other functions.

Clause 8 sets out the proposed powers of the Trust. These are:

(1) The Trust has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) The Trust's powers include, but are not limited to, the following powers:

(a) negotiate with other Commonwealth bodies and with New South Wales and local government bodies

(b) acquire, hold and dispose of real and personal property

(c) enter into an agreement with New South Wales

(d) accept gifts, grants, bequests and devises made to it

(e) enter into contracts and agreements

(f) form, or participate in the formation of, companies

(g) enter into partnerships

(h) participate in joint ventures and arrangements for the sharing of profits, and

(i) raise money, by borrowing or otherwise.

Clause 9 allows the Minister to give written directions to the Trust. The Trust is obliged to comply with those directions, providing they are not contrary to the objects, powers and functions of the Trust. Clause 70 requires the text of all [Ministerial] directions to be included in the annual report of the Trust.

Clause 10 states that the Trust shall consist of 6 members, including a Chairperson.

Clause 11 provides that the NSW government may recommend two persons for membership of the Trust. The Minister is not obliged to appoint the NSW nominees.

Clause 12 sets out the method of appointment of the Trust members. The Minister makes the appointments on the basis that they are satisfied that the person has qualifications and experience relevant to a field related to the Trust's functions. No more than half of the membership can be made up of Commonwealth, State or local government employees.

Clause 16 states that members cannot be in paid employment which in the Minister's opinion conflicts or may conflict with the 'proper performance' of their duties. Members are subject to the Commonwealth Authorities and Companies Act 1997, and as such are also required to disclose 'material personal interests' and in general must not take part in any deliberations by the Trust relating to such an interest.

Clause 20 sets out the grounds for dismissal from the Trust by the Minister. Paraphrasing the main grounds, they are: misbehaviour or physical or mental incapacity, bankruptcy, excessive absence from Trust meetings without being granted leave of absence, 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 disclosure requirement of 'material personal interests' under the Commonwealth Authorities and Companies Act 1997.

Clauses 21 and 22 relate to the vesting of Commonwealth land in the Trust by publishing a notice in the Gazette. The land is held by the Trust 'for and on behalf' of the Commonwealth.

Should the Commonwealth be party to any agreement or similar arrangement regarding the land (eg a lease), immediately before the vesting of land in the Trust, Clause 23 allows the Minister to substitute the Trust for the Commonwealth as the party to the agreement.

The Trust may sell Trust land. However, clause 24 says that the Minister must agree in writing to both the terms of the sale and the buyer. The approval of the Minister regarding leasing Trust land is required for leases that expire more than 10 years after the commencement of the Bill: clause 64.

Clause 26 states the Trust must prepare management plans for any land within 18 months of that land being vested in the Trust, although the Minister may grant an extension of time.

Clause 27 provides that management plans may cover any land in the Sydney Harbour region. However, such plans have no effect over any land until that area is actually vested to the Trust under clauses 21 and 22. The Minister must approve the area proposed to be covered by a plan.

Clause 28 specifies that management plans must 'accord with the objects of the Trust'.

Clause 29 and 30 set out the basic consultative process for developing draft management plans. Clause 29 provides that the Trust must advertise its intention in the Gazette and a 'local paper circulating in the area concerned' to prepare a draft management plan and invite submissions on the issue. The public comment period must at least one month. Once a draft has been prepared, clause 30 provides for a similar advertising and public comment period.

Clause 31 provides that the draft management plan must be submitted to the Minister, together with a report on all public consultations. The Minister may approve or reject the draft plan, or refer it back to the Trust for alteration and/or further public consultations. Clauses 32 and 33 set out the steps for revision of the draft plan if it is not approved by the Minister.

Clause 36 makes it clear management plans can be amended after being approved and Gazetted. However, the Trust must go through the public consultation process again, commencing with a clause 29 notice of intent to draft a management plan.

The effect of clause 37 is that the Commonwealth, the Trust and other Commonwealth bodies must act in accordance with an approved management plan in the area to which the plan applies, regardless of whether the plan is fully in effect for the whole management plan area (see clause 27). This does not authorise any agency to act illegally.

Clauses 39-49 relate to the employment of the Trust Executive Director, staff and consultants. The Executive Director is appointed and dismissed by the Minister on the recommendation of the Trust (clauses 39 and 47). The Executive Director requires the approval of the Trust to engage in paid employment outside of in his or her Trust duties.

Clauses 50-56 cover Trust meeting procedures. The Trust must meet at least four times per year. The Explanatory Memorandum states that 'Trust meetings are not intended to be public meetings, but the Trust may regulate the proceedings of its meetings as it sees fit.'

Clause 57 requires the Trust to establish a community advisory committee for each area to be covered by a management plan.

Clause 58 requires the Trust to establish a technical committee to provide advice to the Trust on environmental and heritage assessments, rehabilitation and decontamination, planning and development.

Clauses 59-65 cover financial matters. While the Government has stated that intends that the Trust should be self-funding, these clauses provide the Trust with some flexibility in being able to receive Parliamentary appropriations and borrow money from the Commonwealth or other sources. The effect of Clause 61 is that any cost or liability incurred by Commonwealth in relation to the interim Trust (such as the $770,000 loan mentioned in the background section of this Digest) must be repaid by the Trust. The Trust can be sued by the Commonwealth for recovery if necessary. Clause 62 requires that the Minister for Finance and Administration must approve any proposal by the Trust to borrow money. Clause 63 provides that the Trust may put up Trust land for collateral against any loans under clause 62 or any other capital raisings under clause 8(2)(i). Clause 64 provides that the written approval of the (Environment) Minister is required before the Trust may enter into certain contracts involving payments or receipt of over $1 million or leases that expire more than 10 years after the commencement of the Bill.

The Trust is intended to be a transitional body to plan and manage the rehabilitation of former defence sites. Clause 66 reflects this by providing for the Act to be repealed as soon as practicable after ten years from its commencement.

Clauses 67-69 provide for the Minister to declare what is to be done with any assets or liabilities that the Trust may have at the time of winding-up. The declarations are to be published in the Gazette.

Clause 70 specifies what the annual report of the Trust must include over and above what is required under the Commonwealth Authorities and Companies Act 1997.

Clause 71 exempts the Trust, Trust land and Trust transactions from the application of a wide range of NSW laws, including environment, planning and tenancy laws.

Clause 72 enables the Trust to delegate its powers and functions to the Executive Director, an employee of the Trust, or a senior executive officer of the Department of the Environment and Heritage.

Clause 73 provides for Regulations to be made under the Act. Amongst other things, the Regulations may specify any details, additional to those specified in clause 28, of the content of management plans and cover regulatory and enforcement measures, including the appointment of wardens and rangers. The Regulations also enable arrangements to be made with Commonwealth and State agencies for enforcement purposes.

Concluding Comments

Funding the Trust's operations: commercial activities and public access to Trust land

As noted in the background to this Digest, one of the principal concerns with the exposure draft Bill was the funding requirements of the Trust and the balance between commercial activities and public access/amenity.

While the Bill contains no specific restrictions on the range of activities that the Trust may pursue in generating revenue,(43) it is bound to act in way consistent with the Trust objectives listed in clause 6. In relation to the Trust's commercial functions, it is 'to manage trust land in a way that establishes a sustainable financial base in furthering the objects, and performing other functions, of the Trust'.(44)

One of the Trusts more challenging tasks will be to reconcile possible perceptions of competition between 'preserving the amenity' and 'maximising public access' objectives on the one hand and establishing a 'sustainable financial base' on the other. As indicated, the Government has said that, in relation to Woolwich and Cockatoo Island, 'the ultimate ownership of these sites will be determined on the basis of the best outcome in maintaining these sites as community assets'. It is interesting to note that, in relation to the power to dispose of trust land, the explanatory memorandum contains the rather cryptic statement that

[w]hile much of the land will [ultimately] be transferred to NSW, some land may be identified in the management planning process as unsuitable for park or community use, and sold.

It should be noted that the sale of Trust land can only occur with the approval of the Minister. Approval could only be granted if a sale was in accordance with the relevant Management Plan - which in turn must accord with the objects of the Trust - although it may be technically possible for the Minister to approve the sale of land prior to the development of a Management Plan.

The Bill also provides that the Trust may borrow money from either the Commonwealth or other sources and, in doing so, it may put Trust land up for collateral.(45) Presumably this is to provide the Trust with greater flexibility in managing its financial affairs. This has a precedent in section 50 of the Federal Airports Corporations Act 1986. However, it is unclear how this provision will operate in practice as presumably Trust land would only be attractive as collateral to a private sector financier if the land could be built upon or otherwise redeveloped to provide a commercial return. Given this, it may be questionable whether a loan contract that exposed Trust land to a possible court action to recover any default by the Trust would be consistent with the objectives of the Trust.

Linkages with the existing NSW planning and management regime

As discussed in the background to this Digest, submissions on the exposure draft Bill also raised issues regarding coordination between the Trust and relevant governmental planning agencies.

Clause 71 provides that the Trust, Trust land and Trust transactions are exempt from State environment, planning and tenancy laws. This effectively maintains the historical status quo regarding the relevant sites. The explanatory memorandum comments that in relation to this clause:

It is not the intention to circumvent State laws but, in accepting its responsibility to secure the future of the sites, the Commonwealth believes that the Trust must be able to operate with a certain degree of autonomy. The Trust is expected to work in close cooperation with the New South Wales government, and is fully empowered to do so through its objects (clause 6) and powers (clause 8). There is also a strong commitment to public consultation in the development of management plans for each site (clauses 29 and 30), and management plans will be enforced through the Regulations.

Attachment 3 of the 1997 Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment deals with compliance with State environment and planning. The attachment says in part:

The Commonwealth agrees that the following entities will be subject to State environmental planning laws...all Commonwealth...statutory authorities whose primary functions are commercial...all non-Commonwealth tenants and persons undertaking activities on Commonwealth land (italics added by author).

It is understood that the defence sites are intended to remain 'Commonwealth places' under s.52 of the Constitution even after they are vested in the Trust.(46) For the purposes of interpreting the Heads of Agreement, it seems reasonable to suppose that 'Commonwealth land' can be equated with a 'Commonwealth Place'. If this is correct, the effect of clause 71 would appear to be that any tenants leasing Trust land would not be subject to State planning laws, a position that seems contrary to the section of the Heads of Agreement quoted above.

The Heads of Agreement also provides that: '[t]he Commonwealth will ensure those authorities not [subject to State laws] ...will observe equivalent [environment and planning] processes and procedures to those of the States'. The Explanatory Memorandum states that the statutory content of management plans(47) 'will be expanded by regulation and endeavour to complement existing NSW process' but it does not provide any detail on how this is to be achieved. As already mentioned, the Bill does provide that two of the six Trust members are to be nominated by the NSW Government in recognition of 'the interest of NSW in the management of the land and the Commonwealth commitment to working closely with the NSW Government'(48). As yet the NSW Government has however declined to nominate these representatives. In March 1999 a NSW Government spokesperson was reported to have said that they would not be party to the Trust until NSW had agreement on its responsibilities and terms of reference.(49)

Management plans for Trust lands

In submitting draft management plans for approval, the Trust is required to provide the Minister with 'a written report on its consultations'. While presumably this would include a summary of the views contained in public submissions and advisory committees, it is worth noting that at least some other recent Commonwealth legislation concerned in part with the preparation of management or development plans explicitly require the decision-making Minister to be briefed on the comments received in the public consultation process. For example, paragraph 92(2)(b) of the Airports Act 1996 requires that a summary of comments received through public consultation must accompany the Ministerial submission for approval of a draft major development plan. Similarly, paragraph 370(2)(a) of the Environmental Protection and Biodiversity Conversation Act 1999 requires that, in submitting a Commonwealth reserve management plan to the Minister for approval, the Director of National Parks must provide any comments received in response to the invitation to comment on a draft of the plan. This more explicit approach may reflect the Government's view of best practice in relation to consultation over 'legislative' decisions made under Commonwealth legislation(50) and thus its inclusion could be considered in amending this Bill.

Looking at the approval process, while the Bill does not require the Minister to take into account any particular factors in deciding whether or not to approve draft management plans, the plan must accord with the objects of the Act.(51) The Minister may approve the draft plan without any changes, refer it back to the Trust(52) or reject the plan outright.(53) It is arguable that it would be within the Minister's power to reject or refer back the plan for reasons that are not directly related to the objectives of the Act.(54) Where the Minister rejects the Plan or refers it back to the Trust, the Trust must go back and start the public consultation process again, commencing with a notice of intent to draft a management plan.

The Operation of the Trust

The Minister may give written directions to the Trust instructing it perform its functions and exercise its powers in a certain manner. The Trust is obliged to follow any such direction provided they do not conflict with the objects of the Act. Any directions must be published in the Trust's Annual Report. The provision for the relevant Minister to give directions to a statutory authority is relatively common in Commonwealth legislation. Depending on the legislation, the public recording of such directions can be through tabling in the Parliament, publishing in the Gazette or inclusion in the authority's annual report. Obviously in the last case, there may be considerable delay in the directions being publicly known, unless the Minister or relevant authority also chooses to publicise them in more informal manner, such as through a press release. No explanation is given in the Explanatory Memorandum or the second reading speech as to why the Government has chosen the annual report option given the likely level of public interest in the operation of the Trust.

Endnotes

  1. The Hon Peter Costello, Second Reading Speech, Appropriation Bill No.1 1999, Representative Debates, 13 May 1997 p. 3398.
  2. 1997-98 Budget Paper No.2, Budget Measures for 1997-98.

  3. Coalition Environment Policy, Protecting the Sydney Harbour Foreshore, September 1998.
  4. Ibid.
  5. Ibid.
  6. Ibid.
  7. The Hon Kim Beazley, Labor's Program of Federation Capital Works, 29 September 1998.
  8. Senator the Hon Robert Hill, Second Reading Speech, Sydney Harbour Federation Trust Bill 1999, Senate Debates, 8 December 1999, p. 11366.
  9. The one change appears to be the removal of clause 67 which dealt with a technical issue under the Acts Interpretation Act 1901.
  10. Senator the Hon Robert Hill, Second Reading Speech, op cit, p. 11367.
  11. According to Senator Hill's press release of March 13 1999, the exposure draft was meant to be released 'within eight weeks'. It was not released until five months later in mid August. Senator the Hon Robert Hill 'Commonwealth Announces Interim arrangements for Sydney Harbour Foreshore Properties' Media Release 13 March 1999.
  12. Answers to questions on notice, Senate Estimates Hearings, Standing Committee on Environment, Communication, Information Technology and the Arts, 2 December 1999.
  13. Ibid.
  14. Coalition Environment Policy, op cit.
  15. Answers to questions on notice, op cit.
  16. CH2M Hill Australia, Remediation Cost Estimate: Cockatoo Island Contamination Study 1993
  17. See for example submissions by the Headland Preservation Group (undated) and the Friends of Cockatoo Island, 10 September 1999.
  18. Mark Metherall 'Prime defence sites in limbo' Sydney Morning Herald 9 March 1999 p 11.
  19. Linda Morris 'Harbour lands face sell-off, says Carr' Sydney Morning Herald 15 February 2000 p. 8.
  20. Answers to questions on notice, op cit.
  21. Senator the Hon Robert Hill, Second Reading Speech, Parliamentary Debates, op cit, p. 11367.
  22. The Interim Trust has met five times as at early 2000. The proceedings of these meetings have been kept confidential. Answers to Senate Estimates Hearings, op cit.
  23. Answers to questions on notice, op cit.
  24. See submissions by the National Trust of Australia (NSW), 16 September 1999, and the Headland Preservation Group, op cit.
  25. This is because, subject to very limited exceptions, State legislatures have no constitutional power to 'impair the capacities of the Commonwealth executive'. See discussion in the Report of the House of Representatives Standing Committee on Environment and Heritage, Environmental Management of Commonwealth Land, 1997 at Paragraph 2.35. The general position of the Department of Defence in relation to State and Territory legislation is that they 'seek to observe the intent' of relevant legislation 'wherever possible and practical' as part of its 'good neighbour policy'.
  26. Australian and New Zealand Environment and Conservation Council, Financial Liability for Contaminated Site Remediation, April 1994. See recommendation 9, p. 12.
  27. That is, as opposed to the Commonwealth Government in general.
  28. Australian National Audit Office, Environmental Management of Commonwealth land site contamination and pollution prevention, Report no.31 1995-96.
  29. House of Representatives Standing Committee on Environment and Heritage, op cit.
  30. See http://www.nepc.gov.au/
  31. However, for the reasons mentioned in footnote 25, any decisions made by the NSW government under the provisions of SEPP 56 could not be enforced in relation to the sites without the consent of the Commonwealth.
  32. That is, the south side of the harbour from Darling Harbour to Garden Island.
  33. Comments from the Sydney Harbour Foreshore Authority on the Sydney Harbour Federation Trust Bill 1999 (date unknown)
  34. Since 1998, the NSW Government has been preparing a Sydney Harbour Vision and Strategy to ' provide Government and stakeholders with a clear direction for the future of the Harbour'. As part of this process, a strategic program for Sydney Harbour is due to be released sometime in 2000. See generally http://www.sydneyharbour.duap.nsw.gov.au/
  35. NSW Department of Urban Affairs and Planning 'Comments on the Draft Bill to establish the Sydney Harbour Federation Trust' (date unknown).
  36. It is unclear whether 'prepare' means in the context of the 18 month deadline - for example, does it mean complete a draft plan for submission to the Commonwealth Minister for approval or merely commence consultations regarding a draft plan?
  37. The Bill does not actually specify the sites to be covered by the Trust. The sites only become 'Trust land' upon gazettal. See Clause 21.
  38. Subclause 28(2).
  39. See the following section of this Digest, Operation of the Trust, for more detail on advisory committees.
  40. These are: Kevin McCann (Chair), Barry O'Keefe, Kevin O'Brien, Peter Lowry.
  41. See concluding comments.
  42. See clause 56.
  43. Activities might possibly include sale or leasing of Trust land or buildings, venue hire or entry fees to Trust land or buildings.
  44. Paragraph 7(e).
  45. Clause 63.
  46. This is to ensure that the Commonwealth retains constitutional power over the Trust lands. They would obviously cease to be Commonwealth places after sale or transferral to the NSW government.
  47. See following section of this Digest Management Plans for Trust Lands for more detail.
  48. Explanatory Memorandum, Clause 11. The Commonwealth Minister is not obliged to appoint the NSW nominees.
  49. Mark Metherall, op cit.
  50. See The Hon Daryl Williams, MP, Legislative Instruments Bill No.2 1999, Second Reading Speech, Parliamentary Debates, 16 June 1996, p. 2829.
  51. Subclause 28(1).
  52. The Minister may direct the Trust to undertaken additional consultation and/or provide suggested alterations to the draft plan: paragraph 31(2)(b).
  53. The Minister must give reasons to the Trust for rejecting the draft plan: paragraph 31(2)(c).
  54. The Courts have generally allowed such decisions to stand if the relevant legislation fails to provide an exhaustive list of criteria on which decisions are to be based. See discussion on this point in Bienke v Minister (1994) 34 ALD 413 at 428-431.

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Angus Martyn
17 March 2000
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