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Chapter 3 - Heritage Listings and Nomination
Current law
3.1
The Environment Protection and Biodiversity Act 1999 contains provisions
dealing with the listing and protection of World Heritage properties and
National Heritage properties. It also provides for the identification and
protection of the Commonwealth's own heritage which encompasses important places
within the Commonwealth's control.[1]
3.2
As a signatory to the World Heritage Convention, the Australian
Government cooperates closely with state and territory authorities to ensure
the protection and promotion of state-managed world heritage, and this is
consistent with Australia's national undertakings under the convention.
3.3
The Australian Heritage Council has responsibility under the Act for
ensuring that places on the National Heritage List and the Commonwealth
Heritage List have been adequately assessed for their heritage values. The
Minister may refer a public nomination or a direct request to the Council for
assessment, while the Council itself may initiate a heritage assessment. The
results of these assessments are then provided to the Minister for a decision
as to a heritage listing taking place.
3.4
The Act has provisions for ensuring that management plans are prepared
that set guidelines for the protection and conservation of heritage sites. If
these sites are within a state or territory then the Act provides that the
Australian Government must endeavour to ensure that management plans are
implemented by the relevant local authority. [2]
Rationale
for the change
3.5
There is a need to increase efficiencies in the area of heritage
management processes and also need to reduce duplication across heritage
registers.[3]
3.6
The principal rationale for the amendments relating to the Register of
the National Estate (RNE) is to complete the transition to a three-tiered
arrangement for heritage within Australia. While the Australian Government is
responsible for national matters; the states are responsible for matters relevant
to states, and local governments responsible for matters of local significance.[4]
3.7
Having a Register of the National Estate complicates the three tiered
model, as it includes places with heritage significance at all three levels. This
issue was identified as significant by the Council of Australian Governments in
1997.[5]
Changes proposed by the bill
3.8
The Environment and Heritage Legislation Amendment Bill 2006 allows for
World Heritage properties to be transferred across to the National Heritage List
without imposing any requirements for further assessment.[6]
This will ensure protection for those properties already listed, as they will
not need to be reassessed prior to being shifted.
3.9
However, the repeal of section 324B of the Act has the effect that the
National Heritage List will no longer be able to include places outside Australia's
jurisdiction, and a new list called the list of Overseas Places of Historic
Significance is being established under chapter 5A to record them.[7]
3.10
The bill also proposes changes that complete the transition to a three
tiered heritage system, as proposed by the Council of Australian Governments in
1997, by enacting that the Register of the National Estate will cease to be a
statutory register. This register will be abolished after a period of five
years to allow sufficient time for heritage listings to be transferred to
states and territory registers.[8]
3.11
The bill repeals sections 324E to 324J and inserts a new subdivision BA
of division 1 of part 15 of the Act which will enable the Minister to set
themes, following advice from the Australian Heritage Council focussing on
places of potential heritage value, rather than being driven by the order in
which public nominations are received.[9]
3.12
The bill also allows the Minister to set more than one heritage theme in
an assessment period (section 342H). The Minister may seek advice from the
Australian Heritage Council to assist in determining heritage themes.[10]
3.13
Under the amendments to the Act heritage listings will now occur on an
annual cycle approval process, rather than on an ad-hoc basis as is currently
the case. A new annual 12 month assessment cycle will commence within 12 months
of the legislation coming into effect (new section 342E) .[11]
3.14
The role of the Australian Heritage Council will be expanded to better
enable this strategic approach to be taken to listing. Advice will be provided
to the Minister on annual work programs based on the strategic importance of
the nominations rather than when they happen to be nominated.[12]
3.15
A new section 324K simplifies the outline for emergency listing processes
for properties with potential heritage value. In conjunction with new section
324JL this enables the Minister to emergency list a place in the National
Heritage List if it may have National Heritage values, if any of those values
is under threat of significant adverse impact, and the threat is both imminent
and likely.[13]
3.16
The bill also amends the Act by repealing section 391A which requires
that the Minister must consider information in the Register of the National
Estate in making decisions relating to heritage listings.[14]
3.17
This amendment will no longer be required once the Register of the
National Estate ceases to operate as a statutory heritage list five years from
the commencement of the provisions of the bill.[15]
Comments and concerns
3.18
Some witnesses supported the streamlining provisions as they recognised
the need for reform, but were concerned that emergency listing process for
heritage value properties could be compromised:
We understand that the 10-day provision was very
onerous for DEH. I know that when they got submissions it caused them grief. We
are certainly happy for changes to be made, but, like with most contentious
things, we would suggest that the changes have gone too far. Indeed,
necessarily in an emergency, the minister should be obliged to make some sort
of response somewhere to someone nominating and, even just within a reasonable
time frame, to offer real protection for that place. Certainly we feel—it is in
our submission—that there should be the possibility for the minister to say,
‘Yes, this place certainly does merit a heritage assessment, so it should be
protected until we can conduct an assessment and discover what is there and
what the heritage values are before we go ahead and develop it.[16]
3.19
However, an amendment to the Act establishing new section 324K, which allows
for the Minister to rapidly consider protection for properties with potential
heritage value if they are deemed to be under threat, diminishes concerns about
the provisions of the Act to deal with emergency listings.
3.20
Some witnesses argued strongly against the discontinuation of the Register
of the National Estate (RNE) and the consolidation of existing heritage registers.
3.21
Australia ICOMOS stated during the committee hearings:
The problem from my view is that the process of moving
from the RNE to a new regime which does that, which provides protection at
different levels, at different places and identifies them—that process of
transformation from one to the other—has not been thought through in terms of
ensuring that there are not, in fact, things falling through the gaps in the
exercise. What this amendment does is say: okay, you have basically got five
years, and the RNE ceases to be something which is referred to in the act
specifically as the RNE, and it seeks the states and local government processes
to basically also follow that line. Many of the state and local government
processes refer to RNE listed places as a trigger for consideration of heritage
issues in development. If this amendment goes through, those safeguards will
disappear. There will not be a formal thing to refer back to. But in that
process there is no mechanism put in place by the Commonwealth to assist the
states and, in particular, local government to fill that gap, to bring in
provisions which protect it. [17]
3.22
More dramatically, the Australian Council of National Trusts argued:
The bill sees the statutory death of the Register of the
National Estate. The Register has been compiled over the past 25 years by the
Commonwealth and is a national treasure. It holds details of over 13 000 places
of heritage significance, many of which are not protected by other legislation.
Although its powers are limited the Register needs to be retained and
sustained.[18]
3.23
However, given that the RNE will continue to act as an archive reference
list after the expiry of the five year statutory period, there appears to be no
real need for the heritage properties currently listed on the RNE to be
transferred to the National Heritage List. This would go against the purpose of
streamlining the Act to move towards a three-tiered registry system across all
levels of government, and create unnecessary work and duplication. Therefore,
concerns that its removal will cause the loss of an important register are
somewhat unfounded.
3.24
Others arguments put forward said that the system could work if
additional steps were taken to manage the process. As the Australian Council of
National Trusts said:
I think one useful exercise could be for somebody to
analyse the Register of the National Estate, see how many places that have
national significance are listed on that register but are not listed on the
National Heritage List and move them across from the Register of the National
Estate onto the National Heritage List. It might save everybody a lot of time
and effort—that is, if that is the way the government is going.[19]
3.25
The Australian Archaeological Association also highlighted the issue of
deficiencies at state level, stating:
The time-frame and rationale for the abolition of the
RNE assumes that over this period state and territory governments will work to
redress statutory deficiencies in their legislation regarding the capacity to
protect and manage all aspects of heritage. However, it is by no means certain
that this will take place, or that archaeological sites and relics in
particular will be included in this process.[20]
3.26
But as the Tasmanian Government pointed out:
Tasmania, as part of its extensive review of state Heritage
legislation and procedures, is already in the process of amending its heritage
register and developing a three tiered register of items of local, state and
national significance. This process, although underway, will take several years
to complete.[21]
3.27
This is evidence that state governments are working proactively to
engage in the heritage listing process under the provisions of the Act and the
changes contained in the bill, and are working towards improvements.
3.28
Of note to the committee were specific concerns that were raised by the
Australia ICOMOS in regards to heritage listings and nominations within the
ACT:
On designated land the planning authority is the
National Capital Authority. There are at least 20 places around the central
national area which are within designated land. While the ACT can put them on
its register it has no impact, no effect, in terms of the ACT planning laws.
They cannot go on the Commonwealth Heritage Register because they are not
managed by a Commonwealth authority. They are not of sufficient significance to
go onto the national register. If the RNE goes into demise there will be no
formal recognition at Commonwealth level of those places within 200 metres of
Parliament House. What we are saying, and have been saying for a while, to the
Commonwealth is: ‘Let’s talk about mechanisms to fill this gap.’ I am not
saying these places are at imminent risk, but they do not have the same
protection and the same clear, transparent planning processes that other places
have, and it is because there has not been enough thinking through of the
transferral from the RNE type protection to a much more rigid
Commonwealth-state/territory protective mechanism.[22]
3.29
These concerns were reiterated by the Australian Council of National
Trusts:
I think it goes to a peculiarly ACT situation because
of the responsibilities of the National Capital Authority, which operates under
federal legislation, and the way in which the local territory heritage
protection operates. There is a gap in coverage and the only protective
mechanism available to the certain group of buildings that Mike Pearson mentions is the Register of the
National Estate. If my understanding is correct, and I think it is, any vestige
of protection that those buildings will get from the register will disappear
with this repeal.[23]
3.30
This issue was also of concern to the committee.
3.31
Witnesses expressed concern that it was a lack of resources that was
instrumental in the removal from the Act of the RNE as a statutory list:
My own observation would be that the department has
done its best in difficult circumstances. I know departments are always constrained,
and it has had very tight timetables to get things done. I would have liked to
have seen more resources devoted to converting the register into a much more
proactive document to take advantage of the 25 years of investment of public
money in that register that has been going on since 1976.[24]
3.32
There was no evidence presented to the committee however, that a lack of
resources was in fact the reason for the abolishment of the RNE as a statutory
register.
3.33
As Australia ICOMOS emphasised, the primary objective was the education
and engagement of the community in the heritage listing process:
Certainly our primary objective is to ensure that the mechanisms
by which the community can identify the significance of places that it values
and mechanisms by which it can see those places recognised by government at all
levels is the key consideration. We are concerned that the current amendments remove
what at community level is seen as a mechanism for identifying places which it
values, and we need something to put in its place. So it is about working
through the mechanism of ensuring protection at all levels. I think one of the
problems with discussing the amendments and everything else is that the
attention of people is at the top end. It is about the Burrup Peninsula; it is
not about the town hall in Upper Woop Woop—but that is the heritage that most
of the community in fact engages with. That is the side of this that we think
is at risk.[25]
3.34
However, the evidence shows that the Australian Government is committed
to protecting properties of national heritage value at both ends of the scale.
3.35
The Minister in September this year reinforced his recognition of the
potential heritage value of the Burrup Peninsula as this extract from his media
release shows:
The Minister for the Environment and Heritage, Senator Ian Campbell, today announced he would seek
public comment on the proposed National Heritage List boundary for ancient
indigenous rock art and stone arrangements on the Burrup Peninsula and Dampier Archipelago in Western Australia’s north-west. “The
Australian Heritage Council has completed its assessment of the area and
advised me of its opinion that the area meets the high threshold for inclusion
in the National Heritage List,” Senator Campbell said. “The Council has also provided a potential
boundary for a listing. Agreeing on the right boundary is a key element of
ensuring the heritage and economic values of the area can co-exist into the
future. I have previously publicly stated that I am fully aware of the significant
heritage values of the area and of the need to protect these values. I am also
very conscious of the enormous economic values of the area and its significance
to the nation’s economy. We have to get the balance right."[26]
3.36
And to highlight the Australian Government's commitment to somewhat less
prominent heritage, the Minister recently announced $10.5 million in funding
over four years for the protection of diverse heritage properties, including:
- $500,000 for works to Brush Farm House, NSW, a 19th century
colonial built for explorer Gregory Blaxland.
- $310,000 to support works to the interior of Sydney’s Great
Synagogue.
- $454,545 for conservation works on the National Heritage listed Newman
College, Vic, designed by Walter Burley Griffin and Marion Mahoney Griffin.
- $95,909 to conserve the historic fabric of the National Heritage
and World Heritage listed Royal Exhibition Building, where Australia’s first
Federal Parliament was opened in 1901.
- $72,966 to uncover and restore the rare façade of St Kilda’s Luna
Park Carousel organ.
- $45,000 for works to the former St Matthews Church, Tasmania,
designed by noted convict architect James Blackburn.[27]
3.37
Despite some witnesses' concerns, there is a strong commitment to
preserving the heritage of both small and large heritage properties, and the
proposed amendments to the Act are unlikely to impact on such a commitment.
Conclusion
3.38
As the explanatory memorandum outlines, the benefits arising from the
proposed amendments to the Act's heritage provisions include:
- Improved efficiency of the heritage listing process by removing
onerous statutory requirements and providing for strategic approaches to be
taken;
- Increased ease of communication with owners or occupiers and
people proposing listings by improving consultation mechanisms;
- Provision of greater certainty and removal of duplication for
Australian Government agencies in relation to their responsibilities for
protection of listed heritage places;
- Provision of greater certainty for owners of heritage listed
properties in external territories; and
- More efficient administration and greater certainty through
resolution of definitional and technical uncertainty and problems.[28]
Committee view
3.39
While the Register of the National Estate has approximately 13,000 listings
and will be retained for five years and beyond as a reference, it will cease to
exist as a statutory list. This move is supported by the committee as there
currently exists a number of heritage lists at state and territory and Commonwealth
levels, and this will work towards streamlining and consolidating existing
heritage lists to reduce duplication and facilitate adoption of the three-tier
system.
3.40
The committee does note that there is some concern that the Register of
the National Estate is the only mechanism to protect sites in the ACT under the
control of the National Capital Authority. The committee believes the Government
should examine this particular issue to ensure that this anomaly is addressed.
Recommendation 1
3.41
The committee recommends that the Government investigate the issue of
heritage properties within the Australian Capital Territory that are located on
designated Commonwealth land to ensure their protection and heritage status is
not compromised with the repeal of the Register of the National Estate.
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