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
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ISSN 1328-8091
© Commonwealth of Australia 2002
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