Bills Digest No. 116 2000-01
Australian Heritage Council Bill 2000
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
Australian Heritage Council Bill 2000
Date Introduced: 7 December
2000
House: Senate
Portfolio: Environment
and Heritage
Commencement: At the
same time as the Environment and Heritage Legislation Amendment Bill (No.2)
receives Royal assent.
To establish the Australian Heritage Council. This will
replace the existing Australian Heritage Commission established under
the Australian Heritage Commission Act 1975.
The Australian Heritage Council
Bill 2000 (the Bill) is part of a package of three Bills designed to replace
the Australian Heritage Commission Act 1975.
The Bill establishes the Australian Heritage Council
(the Council) and sets out operational details such as membership, terms
of office, meeting procedures etc. The role of the Council in assessing
the heritage values of places nominated for possible inclusion on the
National Heritage List and Commonwealth Heritage List is dealt with in
the Environment and Heritage Legislation Amendment Bill (No.2) and readers
are referred to Bills
Digest no. 105, 2001-01 for discussion of this issue.
Section 4 formally establishes the Council.
Section 5 sets out the functions of the Council.
Essentially these are:
- to make any assessments requested by the Environment Minister under
the Environment Protection and Biodiversity Conservation Act 1999;
- to give any advice requested by the Minister on the conservation and
protection of certain places with heritage values;
- to give any advice requested by the Minister on a wide range of matters
relating to research, education, policy issues, funding, monitoring
and the Commonwealth's responsibilities for historic shipwrecks;
- to nominate places for inclusion in the National Heritage List or
Commonwealth Heritage List; and
- to perform any functions conferred on the Council by the Environment
Protection and Biodiversity Conservation Act 1999.
In comparison to section 7 of the existing Australian
Heritage Commission Act 1975 (AHCA), it is noticeable that many of
the functions outlined above are exercisable only upon the request of
the Environment Minister. This implies that the new Council will have
considerably less freedom of independent action and initiative than the
Australian Heritage Commission (the Commission). Its role will be similar
to that of other expert advisory bodies under the Environment Protection
and Biodiversity Conservation Act 1999. The Council is however able
to research places for nomination and nominate places for inclusion in
the National Heritage or Commonwealth Heritage List without direction
from the Minister.
The scope of heritage matters that the Council may be
involved in is broader than the current arrangements for the Commission.
For example, the Council may provide advice on a number of heritage matters
such as shipwrecks, international heritage etc.
New section 6 provides that the Council will consist
of a Chair and 6 other members, all part-time office holders. This is
essentially the same as the existing the Commission. However, there is
no requirement as in the AHCA that the Chair and not less than
half the members be filled by non-Commonwealth officers. There is also
no provision, as is the case in the AHCA, for the Secretary of a Department
or the Chairman of a Commonwealth authority to be appointed a Commissioner.
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, one must 'represent the
interests of indigenous people'.
New section 8 provides that Council members hold
office for term specified at their appointment. Appointments may be up
to 3 years, and members may only be appointed twice, given them a maximum
term of six years. The AHCA allows for Commissioners to be reappointed
for more than two terms, provided there is a break in service for twelve
months.
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'.
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,
bankruptcy, absence from 3 consecutive Council meetings(1),
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 section 19 disclosure requirement of
'indirect or indirect pecuniary interests'.
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 18 provides that decisions at meetings
are to be made by a majority of the votes of the members present and voting.(2)
By virtue of section 33B(3) of the Acts Interpretation Act 1901,
a member participating in the meeting by phone or similar hook up is taken
to be present at the meeting.
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 clause. The member must be excluded from discussion and
decision on the matter unless the Council decides otherwise.
New section 20 allows the Council to regulate
its meeting procedures as it wishes, providing they conform to new
sections 14-19 of the Bill.
New section 21 allows regulations to be made 'prescribing
matters necessary or convenient' for the carrying out, or giving effect
to, the Bill.
Council membership
New section 7, which sets out the required
qualifications for membership of the Council, represents somewhat more
precise criteria to appointment to the Commission than under the AHCA.
Subsection 12(4) of the AHCA only requires that Commissioners are 'persons
having qualifications relevant to, or special experience or interest
in, a field related to the functions of the Commission'. Having a 'special
interest' in some aspect of heritage hardly constitutes a rigorous criterion.
Some Senate Inquiry submissions suggested that new
section 7 could be further strengthened. For example, the submission
of a former Executive Director of the Commission comments:(3)
I also consider that for the credibility of the Council
its membership should be of the highest technical excellence. In the
past this has not always been the case with the membership of the
Australian Heritage Commission, due, alas to the tendency of some
governments to appoint friends or supporters to what has appeared
to be a sinecure. To ensure this I consider that the provisions relating
to the expertise of members of the Council should be strengthened
to include the stipulation that at least some of members of the Council
should possess the appropriate technical qualifications. The [EPBCA]
contains what seems to be a relevant precedent in this regard in specifications
for the appointment of the Biological Diversity Advisory Committee.
[Subsection] 504(5) stipulates that at least five members of
this Committee should possess scientific qualifications the Minister
thinks relevant to the performance of the Committee's functions. A
similar provision, stipulating relevant technical or tertiary rather
than scientific would be seen to be appropriate in the case of the
Council.
Another submission suggests as an alternative that the
Bill could provide for the creation of sub-committees, membership of which
would require specific technical qualifications.(4)
Oral evidence to the Senate Inquiry also raised concern
about the adequacy of new section 7 in relation to indigenous interests:(5)
No single Aboriginal following the minister's direction
under the act could be expected to evaluate and take responsibility
for the whole continent, distinguishing so-called national from B-grade
places. The responsibility for drawing up a national list would seem
to me to be a terrible burden to place on a few Aboriginal people....
On the other hand, the Council must consult with
indigenous people with rights and interests in the place if there is a
possibility that the place has indigenous heritage value. In addition,
the Council must ask the Director for Indigenous Heritage Protection to
provide written advice on the place's indigenous heritage value.
- There appears to be no power for the Chair to grant leave of absence.
- Providing of course a quorum is present. A quorum is a majority of
members holding office at the time.
- Sharon Sullivan, submission to the Inquiry by the Senate Environment,
Communications, Information Technology and the Arts Committee into the
Environment and Legislation Bill (No.2) and related Bills (Senate Inquiry):
submission 14 p. 9.
- Professor Jane Lennon, submission no 11 p. 6.
- Evidence by Emeritus David Yencken 28 February 2001 p. 28 of Committee
transcripts. http://www.aph.gov.au/hansard/senate/commttee/comsen.htm
Angus Martyn
30 March 2000
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