Bills Digest no. 95 2007–08
Military Memorials of National Significance Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Military
Memorials of National Significance Bill 2008
Date
introduced: 19
March 2008
House: House
of Representatives
Portfolio: Veterans'
Affairs
Commencement: On
the day on which it receives the Royal Assent
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of the Bill is to provide a mechanism that
will enable a memorial which is located outside the Australian Capital
Territory (ACT) and meets specified criteria, to be recognised as a Military
Memorial of National Significance.
The National
Memorials Ordinance 1928 (the Ordinance) was enacted under
the Seat of Government (Administration) Act 1910.[1] The Ordinance formally established the National Memorials
Committee with the Prime Minister as Chairman. The Committee's role is
to consider and approve (or reject) submissions relating to the location
and character of national memorials on ‘national land’ in the ACT.
Section 27 of the Australian Capital Territory (Planning and Land
Management) Act 1988 empowers the Minister[2] to declare specified areas of land
in the ACT to be ‘national land’ in circumstances where the land is, or
is intended to be, used by or on behalf of the Commonwealth.
The National Memorials Committee only examines proposed memorials on
‘national land’. The Committee has no authority to consider proposed
memorials which are located elsewhere. A memorial built on land which
is not ‘national land’, may be referred to as being ‘national’ in character.
However, under the current state of the law, it could not be officially
recognised as having national significance in the same way that a memorial
on ‘national land’ would.
The Ordinance, and consequently the National Memorials Committee,
does not govern the funding of national memorials which are not located
on ‘national land’.
Section 83 of Australia's Constitution provides that 'no money
shall be drawn from the Treasury of the Commonwealth except under appropriation
made by law'. This means that the Commonwealth cannot authorise the funding
of things such as national memorials, unless the Parliament has authorised
the expenditure by an Act of Parliament. For example, the Australian
War Memorial is established as a corporation by the Australian War
Memorial Act 1980 which sets out the functions of the Australian War
Memorial and its governance. According to its Annual Report, the Australian
War Memorial’s primary funding is by way of government appropriation.[3]
Alternatively, funding may be available through programs such as the
Commemoration
of Historic Events and Famous Persons (CHEFP) grants program (sponsored
by the Department of the Environment, Water, Heritage and the Arts).
CHEFP is designed to commemorate people, events and places of national
historical significance.
Eligible projects may include:
- the conservation of graves of people of national historic significance,
and
- the construction and conservation of monuments, plaques and statues
that commemorate people, events and places of national historical significance.
It is a modest program with many projects receiving around $5000 each
payable to eligible not-for-profit bodies that are legally incorporated
in Australia and local government authorities.
The Australian Ex-Prisoners
of War Memorial (the Ballarat Memorial) was completed and dedicated
on 6 February 2004. The names of more than 35,000 Australian Prisoners
of War (POWs) are etched into a 130 meter long black granite wall in alphabetical
order, grouped by conflict, commencing with the Boer War through to the
Korean War.[4]
The monument, designed by sculptor Peter Blizzard, is intended to provide
former POWs, their descendants, visitors and future generations with a
reflective experience. However, although in its themes, character and
execution it could be called ‘national’ it is not currently recognised
as a ‘national memorial’.
There has been considerable debate about whether the Ballarat Memorial
is a ‘national memorial’ since the then Member for Ballarat, Mr Michael
Ronaldson, announced in 1999 that the town would be the site
of an Australian Ex-Prisoners of War Memorial. He stated then that the
Memorial would have national status, though it
would not be called a ‘national memorial’.[5]
In essence, the group which had been the driving force behind the project
believed that the Ballarat Memorial was a ‘national memorial’ for the
following reasons:
- Former Assistant Treasurer, Senator Rod Kemp, had referred to the
memorial as a ‘national memorial to be erected in the City of Ballarat’
when he announced that gifts to the value of $2 or more to the Australian
Ex-Prisoners of War Memorial Fund would be tax deductible.[6]
- The project had received Commonwealth funding in the amount of $200,000
prior to its completion,[7]
and further promises of funding were made during the election campaign
of 2004 by both parties.[8]
- It was the first memorial to prisoners of war that specifically honoured
all Australian POWs both living and dead from all conflicts. It was
considered that it could not be a local memorial if it carried the names
of POWs from all over Australia.[9]
- The only other memorial to POWs is the Changi Chapel which was not
accessible to the public and was directed solely at POWs interned by
the Japanese.[10]
- The project had the full support of the National Executive of the
Ex-POW Association of Australia.[11]
The arguments by the former Government against this proposition
were as follows:
- The Ballarat Memorial would complement other major POW memorials,
including the Government established memorials at Hellfire Pass in Thailand
and Sandakan in Malaysia as well as the National Prisoner of War Memorial,
Changi Chapel, which is located in the grounds of the Royal Military
College, Duntroon, Canberra.[12]
- The law required all national monuments to be located in the ACT.[13]
- Whilst the Ballarat Memorial was ‘a worthy project’ it was ‘not a
national project.[14]
Mr Rudd, then opposition leader, promised in June 2007 that the Ballarat
Memorial ‘would be recognised if Labor wins government’.[15]
The Hon. Alan Griffin, Minister for Veterans’ Affairs stated on 19 March
2008 that:
The Australian government will soon be able to deliver
on its election commitment to recognise the Australian Ex-Prisoners
of War Memorial in Ballarat as a memorial of national significance.
… It is fitting that Ballarat’s Australian Ex-Prisoners
of War Memorial is the first memorial accorded national status under
this new legislation.[16]
This Bill delivers on Labor’s promise that the Ballarat
Memorial will become a ‘Military Memorial of National Significance’.
However, whilst formal recognition will bring with it greater status,
of greater concern to those concerned with the Ballarat Memorial is the
issue of formal, on-going, Commonwealth funding.[17]
The debate about the continued funding of the Ballarat Memorial commenced
shortly after its opening in February 2004. It was sparked by the Ballarat
City Council’s request for an extra $500,000 from the Federal Government
towards upkeep and maintenance.[18]
The former Government was unwilling to make a commitment to the funding
for the Ballarat Memorial, despite claims that the local community was
‘desperate for funding for ongoing maintenance and security issues [in
relation to the Ballarat Memorial].[19]
This Bill does not, of itself, deliver a guarantee of funding.
According to the Explanatory Memorandum, the Bill has no financial impact.[20]
However, it should be noted that the Government has provided $160,000
in Federal Government funding to help preserve the Ballarat Memorial.[21] The funding was said to ‘fulfil
the Government’s commitment to recognising the memorial’s significance
and would help fund memorial maintenance over the next four years.[22]
Part
2 of the Bill relates to the declaration of Military Memorials of
National Significance.
Subclause 4(3) sets out the criteria for determining
whether a memorial is a Military Memorial of National Significance as
follows:
- The scale, design and standard of the memorial is appropriate for
the memorial to be considered ‘nationally significant’ and the memorial
is appropriately dignified and symbolic: paragraph 4(3)(a).
- The sole purpose of the memorial is to commemorate Australia’s military
involvement in a significant aspect of Australia’s wartime history:
paragraph 4(3)(b).[23]
- The memorial has a major role in community commemorations: paragraph
4(3)(c).
- Commonwealth flag protocols
are observed in relation to the memorial: paragraph 4(3)(d).[24]
- The memorial is owned or managed by a ‘State or Northern Territory
authority’ that has responsibility (including financial responsibility)
for the ongoing maintenance of the memorial, and for any refurbishments:
paragraph 4(3)(e). Clause 3 defines the term ‘State or
Northern Territory authority’ being :
- a State or the Northern Territory or
- a local government body, or other authority, established by or
under a law of a State or the Northern Territory.[25]
- It complies with applicable planning, construction and related requirements:
paragraph 4(3)(f).
- The memorial is on public land within a State or the Northern Territory:
paragraph 4(3)(g).
- It is publicly accessible and there is no entry fee: paragraph
4(3)(h). According to the Explanatory Memorandum, the memorial
is to be accessible on a daily basis with the possible exception of
certain public holidays such as Christmas Day and Good Friday.[26]
- The memorial must be completed and functioning as a memorial at the
time that the application is lodged: paragraph 4(3)(i).
- It is not associated with a commercial function that conflicts with
its commemorative purpose: paragraph 4(3)(j). According to the
Explanatory Memorandum, this does not preclude a memorial which is associated
with a commercial endeavour, such as a bookshop or café as long as the
commercial endeavour is ancillary to the memorial.[27]
Subclause 4(1) provides that the Minister[28]
may, by notice published in the Gazette, declare a memorial to be a ‘Military
Memorial of National Significance’ if the above criteria are met. In
addition:
- an appropriate application for the memorial to be so declared has
been made and
- the Prime Minister has agreed in writing to the making of the declaration.[29]
Under subclause 4(4) neither the notice published in the Gazette
nor the written agreement by the Prime Minister are legislative instruments
within the meaning of the Legislative Instruments Act 2003. They
will not, therefore, be put before the Parliament and will not be subject
to disallowance.
Clause 5 provides that the Minister may approve, in writing, an
alteration to a ‘Military Memorial of National Significance’ provided
that:
- an appropriate application has been made and
- the Minister is satisfied that the memorial will continue to meet
the criteria set out in subclause 4(3).
Subclause 5(2) provides that the Minister’s written approval is
not a legislative instrument within the meaning of the Legislative
Instruments Act 2003. It will not, therefore, be put before the Parliament
and will not be subject to disallowance.
Clause 6 provides that the Minister may, subject to agreement
in writing by the Prime Minister, revoke a declaration that a memorial
is a ‘Military Memorial of National Significance’ in circumstances where:
- the Minister is satisfied that the memorial does not meet the criteria
in subclause 4(3) or
- an alteration has been made to the memorial since the declaration
was made and the Minister has not approved the alteration under clause
5.
The revocation is made by notice published in the Gazette.
In that case according to subclause 6(2), neither the notice, nor
the written agreement of the Prime Minister, are legislative instruments
within the meaning of the Legislative Instruments Act 2003. They
will not, therefore, be put before the Parliament and will not be subject
to disallowance.
Subclause 7(1) provides that an application may be
made for a memorial to be declared to be a Military Memorial of National
Significance or for approval of an alteration to such a memorial. The
application must be in accordance with the relevant regulations: subclause
7(3).
Part 3 of the Bill contains miscellaneous provisions.
Clause 9 provides that the Commonwealth does not
have any responsibility, whether financial or otherwise, for a memorial
merely because it has been declared a ‘Military Memorial of National Significance’
under clause 4.
Clause 10 provides that the Governor-General may
make regulations which will give effect to the contents of the Bill, for
example, in relation to the content and form of applications for declaration.
The Explanatory Memorandum states that the Bill will provide a mechanism
to honour the Government’s election commitment to declare the Ballarat
Memorial to be a national memorial.[30] Certainly, subclause 4(2) of the Bill which provides
that no formal application for declaration needs to be provided in respect
of the Ballarat Memorial is recognition of this commitment.
However, the contents of both paragraph 4(3)(e) and clause
9 should be noted. Both of those clauses indicate that the Commonwealth
denies responsibility, financial or otherwise, for a memorial which has
been declared (or is seeking to declared) a ‘Military Memorial of National
Significance’.
As already stated, the Government has delivered funding for maintenance
of the Ballarat Memorial for the next four years. However the Bill is
silent on the issue of further funding thereafter.
© Copyright Commonwealth
of Australia
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Feedback is welcome and may
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[3]. Australian War Memorial, Annual
Report 2005-2006, Canberra, September 2006, p. 89.
Paula Pyburne
1 May 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
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