Bills Digest No.
64, 2020–21
PDF version [596KB]
Leah Ferris
Law and Bills Digest Section
21
May 2021
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Appendix 1 – Government Response to
Recommendations made by the Review
Date introduced: 18
March 2021
House: House of
Representatives
Portfolio: Agriculture,
Water and the Environment
Commencement: Sections
1-3 commence on the date the Act receives Royal Assent. Schedule 1 commences
the later of the day after Royal Assent or immediately after the
commencement of the Federal Circuit
and Family Court of Australia Act 2021.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at May 2021.
Purpose of
the Bill
The purpose of the Sydney
Harbour Federation Trust Amendment Bill 2021 (the Bill) is to amend the Sydney Harbour
Federation Trust Act 2001 (Cth) (the Harbour Trust Act) to:
- allow
the Harbour Trust to operate as an ongoing entity
- amend
the current arrangements for membership of the Harbour Trust Board
- increase
the threshold amount for contracts requiring the Minister’s approval
- introduce
changes to the current leasing arrangements
- expand
the list of matters which the Regulations can provide for and
- introduce
new compliance and enforcement provisions.
Background
Establishment
of the Trust
During the 1990s, a number of former defence sites located
on the Sydney Harbour foreshore were in the process of being vacated by the
Commonwealth Department of Defence. There was strong interest in the community
that these sites be preserved for public use, instead of the land being sold or
redeveloped.[1]
This led to a number of groups being established to lobby for the protection
and rehabilitation of these sites, forming a coalition known as the Defenders
of the Sydney Harbour Foreshores.[2]
Following negotiations with the New South Wales Government
during 1997 and 1998, the Commonwealth Coalition Government included a
commitment in its 1998 election platform to:
… return Sydney Harbour foreshore defence sites to the people
of Australia and protect the national and heritage values of those sites ... [by]
provid[ing] $90 million from the Federation Fund and establish[ing] a Sydney
Harbour Federation Trust ... [which will] assume management and planning
responsibilities for the sites ... for a period of ten years.[3]
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.[4]
The Sydney Harbour Federation Trust (the Trust) was
established as a transitional body in September 1998 and commenced activities
in March 1999, with an interim board and executive director appointed to guide
the activities of the Trust and to report to the Minister for the Environment.[5]
An exposure draft of the Sydney Harbour Federation Trust Bill (the SHFT Bill)
was released for public comment in August 1999 and received significant
criticism from stakeholders who were concerned about how the Trust would be
funded.[6]
The SHFT Bill was introduced into the Senate four months later where it was
substantially amended. The SHFT Bill was then referred to the House of
Representatives, where it was further amended, before being returned to the
Senate.[7]
The SHFT Bill was passed by both Houses of Parliament in February 2001 and the Harbour
Trust Act took effect in September 2001.[8]
In 2007, the Coalition Government, with bipartisan support, passed the Sydney
Harbour Federation Trust Amendment Bill 2007 which extended the life of the
Trust from 2011 to 2033.[9]
Objectives
of the Trust
Section 6 of the Harbour Trust Act outlines the
objectives of the Trust:
- to
ensure that management of Trust land contributes to enhancing the amenity of
the Sydney Harbour region
- to
protect, conserve and interpret the environmental and heritage values of Trust
land
- to
maximise public access to Trust land
- to
establish and manage suitable Trust land as a park on behalf of the
Commonwealth as the national government
- to
co‑operate with
other Commonwealth bodies that have a connection with any Harbour land in managing
that land and
- to
co‑operate with New
South Wales, affected councils and the community in furthering the above
objects.
Harbour
Trust sites
Under the Harbour Trust Act, ‘Trust land’ is
defined to mean any land that vests in the Trust and is held by the Trust from
time to time for and on behalf of the Commonwealth.[10]
The majority of the land was vested in the Trust by the Navy in April 2003,
with Sub Base Platypus vested in July 2005 and the Macquarie Lighthouse vested
in July 2008.[11]
The Trust is currently responsible for managing the
following sites:
- Chowder
Bay (Headland Park, Mosman)
- Cockatoo
Island (Sydney Harbour)
- Former
Marine Biological Station (Watson’s Bay)
- Georges
Heights (Headland Park, Mosman)
- Macquarie
Lighthouse (Vaucluse)
- Middle
Head (Headland Park, Mosman)
- North
Head Sanctuary (Manly)
- Sub
Base Platypus (North Sydney)
- Woolwich
Dock and Parklands (Woolwich)
- Snapper
Island (Note: Yet to be formally transferred).[12]
Independent
Review of the Trust
On 30 October 2019 the Minister for the Environment,
Sussan Ley (the Minister), announced an independent review (the Review) of the
Trust.[13]
This was the first review that had been conducted since the Trust began
operations in 1999 and was aimed at ensuring that the Trust’s legislative, financial
and governance arrangements remain fit for the future.[14]
Carolyn McNally and Erin Flaherty were appointed to undertake the Review,
supported by a secretariat from the Department of Agriculture, Water and the
Environment.[15]
Process
Following the announcement of the Review, a discussion
paper was released, and stakeholders were given a three-month period in which to
submit their views in relation to the terms of reference. Four public forums
were also held, as well as over seventy meetings with stakeholders.[16]
The reviewers were originally expected to report by March 2020.[17]
There were some concerns that the five-month timeframe for conducting the Review
may lead to a rushed process and inadequate consultation.[18]
Report
On 18 June 2020, the Minister publicly released the report
prepared by McNally and Flaherty.[19]
The Review made 21 recommendations, the most significant being that the Trust
should no longer be considered a transitional body but, instead, become an
ongoing entity, with land retained by the Commonwealth.[20]
The Review also recommended that additional funding from the Government was
required to continue with the rehabilitation of sites managed by the Trust,
particularly Cockatoo Island and North Head Sanctuary.[21]
Other recommendations related to the ongoing governance and maintenance of the
Trust; collaboration and partnership with the community and with the NSW
Government; powers of the Trust with respect to leasing and entering into
contracts; and specific recommendations with respect to Cockatoo Island and
North Head Sanctuary.[22]
Government response
In her letter to the Chair of the Trust releasing the
report, the Minister stated:
The Government agrees with the reviewers' key recommendation
that the Trust continues as an ongoing Commonwealth entity and broadly accepts
all other recommendations subject to more detailed planning and consultation. I
will begin consultation soon on draft legislation to amend the existing Act to
address the recommendations.[23]
This was reflected in the Government’s response to the
Review’s report.[24]
Committee
consideration
Senate
Selection of Bills Committee
At its meeting of 13 May 2021, the Senate Standing
Committee for Selection of Bills deferred consideration of the Bill to its next
meeting.[25]
Senate
Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills
reported on this Bill on 21 April 2021.[26]
The Committee raised concerns that the Explanatory Memorandum to the Bill does
not provide sufficient justification for the expansion of the regulation-making
power contained in section 73 of the Harbour Trust Act (the proposed
amendments are contained in Part 2 of the Bill – see pages 17 to 18 below for further
discussion).[27]
The Committee noted that significant matters, such as requirements in relation
to offences and penalties, and the disposal of property and animals, should be
included in primary legislation which is subject to the full range of parliamentary
scrutiny, unless sound justification is provided.[28]
The Committee requested the Minister’s detailed advice as
to:
- why
it is considered necessary and appropriate to leave requirements relating to
offences and penalties and requirements relating to the removal and disposal of
objects and other matter to delegated legislation and
- whether
the Bill can be amended to include at least high-level guidance regarding these
matters on the face of the primary legislation.[29]
The Minister’s response was received by the Committee on
12 May 2021 but has yet to be published at the time of writing this Digest.[30]
Policy
position of non-government parties/independents
A number of members of Parliament whose electorates
include Trust sites provided submissions to the Review.
Senator Andrew Bragg provided a detailed submission to the
Review, stating that ‘it is of critical importance that our most prized sites
in Sydney Harbour continue to be rehabilitated and made accessible to the
public’.[31]
He advocated that the Trust should be preserved in perpetuity; the mandate of
historical, environment and cultural preservation be maintained; and enhanced
revenue models should be explored, such as long term leases, consistent with
the intent of the Trust.[32]
In her submission, Tanya Plibersek MP stated that she
hoped to see ‘the Trust continue to prioritise the public accessibility of its
lands’ and encouraged the Trust to consider establishing a museum on its land
dedicated to Australia’s First Nations.[33]
Zali Steggall MP, also a member of the Trust Community
Advisory Committee (CAC), submitted:
- the
Harbour Trust should retain custodian of Trust lands in perpetuity and should
remain a Commonwealth entity
- the
Commonwealth should fund the Trust on an ongoing basis to rehabilitate and
maintain these sites
- the
existing legislative protections must be maintained and not diluted to ensure
these sites are kept safe from redevelopment
- the
Harbour Trust Board should be modified and depoliticised with identified
positions assigned to persons with experience and qualifications in indigenous
culture, military history, heritage and the environment and
- the
relationship between the Harbour Trust Board and the CAC should be strengthened
by appointing a member of the CAC to the Board.[34]
Position of
major interest groups
The Trust
In its submission to the Review, the Trust stated that
‘recent financial headwinds and legislative uncertainty facing the Harbour
Trust present significant risk to our ability to achieve and maintain the great
shared vision that is at the foundation of our work’.[35]
In order to meet these challenges, the Trust sought greater financial support
from the Government and confirmation of the Trust as an ongoing entity.[36]
The Trust also advocated for the Harbour Trust Act to be amended to
allow the Trust to enter into leases of up to 49 years and for the minimum
threshold on contracts subject to Ministerial approval be increased.[37]
NSW State
Government
The NSW State Government noted that the original purpose
of the Trust was to act as a transitional body to manage the restoration of the
sites ahead of them being transferred to NSW for inclusion in the national
parks and reserve system.[38]
The NSW Government submitted that it is the right entity to oversee the conversation
and management of Trust sites into the long term and now is the time to plan
for the orderly transition of land to NSW in accordance with the provisions of the
Harbour Trust Act.[39]
Following release of the Review’s report, NSW Planning Minister Rob Stokes
said that the recommendation that the land continue to remain vested in the
Trust was ‘a backward step’ and ‘the Review was a “cover-up of the lack of
ambition" for the preservation and promotion of the seven former defence
sites by the Morrison government’.[40]
Community
groups
There is strong interest from the community with respect
to the Trust and the Review received submissions from a number of community
groups and individuals who have an interest in particular Trust sites.[41]
Some stakeholders expressed concerns about the role of the Trust and voiced a
preference that the sites be instead included in the NSW national parks and
reserve system, in partnership with the local community.[42]
However, there was a majority view amongst stakeholders that the sites should
not be returned to the NSW Government.[43]
This was in part due to a view that neither state nor local councils had the
skills or capacity to properly manage these sites.[44]
Other stakeholders were also concerned about what would be done with the sites
upon their return to the NSW Government. The Headland Preservation Group (HPG)
stated in its submission that ‘HPG has been advised by the Trust that the lands
will not end up in the National Parks portfolio’.[45]
Financial
implications
The Explanatory Memorandum states that there is no
financial impact on the Commonwealth associated with the Bill’s amendments to
the Harbour Trust Act.[46]
In the 2020–21 Budget, the Government made $40.6 million
available to the Harbour Trust to enable it to address critical repairs and
maintenance over the next four years.[47]
This is in addition to the Government releasing $9 million which was being held
in the Harbour Trust’s accounts following the sale of eight houses at Markham
Close, Mosman.[48]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[49]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
commented on this Bill on 31 March 2021.[50]
In its comments, the PJCHR raised concerns about regulation 11 of the Sydney Harbour
Federation Trust Regulations 2001 (the Regulations) which currently
provides that it is an offence for a person to ‘organise or participate in a
public assembly on Trust land’.[51]
The PJCHR identified that the new compliance and enforcement provisions set out
in the Bill will apply with respect to regulation 11 of the Regulations (see
pages 18 to 20 below for a detailed discussion of these amendments). Therefore,
the PJCHR found that ‘by providing for the enforcement of a prohibition against
organising or participating in organised assemblies, this Bill engages and
appears to limit the rights to freedom of expression and assembly’.[52]
The PJCHR noted that ‘the statement of compatibility does
not identify that this Bill engages the rights to freedom of expression and
assembly’ and that the Attorney-General had previously advised that
consideration of whether the approach taken under regulation 11 with respect to
public assemblies remains appropriate would be undertaken in the development of
replacement Regulations (as the current Regulations are due to sunset in
October 2021 – see pages 17 to 18 for further information).[53]
However, the Explanatory Memorandum states that that the Regulations are
anticipated to be 'remade with minor changes to their operation' and the Review
did not consider this issue in its report.[54]
The PJCHR has therefore sought further advice on the following matters from the
Attorney-General in order to properly assess the human rights implications of
this Bill:
- whether
it is intended that section 11 of the Sydney Harbour Federation Trust
Regulations 2001 will be retained as drafted, retained subject to amendments,
or removed;
- how the
organisation of, or participation in, a public assembly (including a meeting,
demonstration, procession, performance, or sporting event) on Trust land would
constitute a threat to public order or public health;
- what
safeguards exist to protect the rights to freedom of expression and assembly,
noting that the regulations establish a broadly defined prohibition on a public
assembly which would appear to include assemblies which may pose no threat to
public order on public lands (including how often has the Trust issued or
refused to issue a permit for the carrying out of assemblies, and on what
basis); and
- why
other, less rights restrictive alternatives (such as only prohibiting
activities contravening regulations which constitute a public hazard or a risk
to public health) would not be effective to achieve the objective of this
measure.[55]
At the time of writing, the Attorney-General’s response
had not been published.
Key issues
and provisions
Part 1 –
Review of the Trust
Part 1 of the Bill sets out the key amendments to Harbour
Trust Act with respect to the operation of the Harbour Trust.
Ongoing
Operation of the Harbour Trust
Current
situation
The Australian Government’s original intention was for the
Harbour Trust to be a transitional body to manage Commonwealth lands in and
around the Sydney Harbour region and maximise public access until 2011, when
suitable land would be transferred to New South Wales for inclusion in the
national parks and reserve system.[56]
In 2007, the Parliament passed the Sydney Harbour
Federation Trust Amendment Act 2007 which extended the life of the
Harbour Trust until 2033.[57]
The Review noted that while the Harbour Trust was
established as a transitional body, ‘present arrangements force the Trust to
effectively operate as both an ongoing and a transitional body, creating
financial and other challenges’.[58]
What the
Review recommended
One of the key recommendations arising out of the Review
was the Harbour Trust should operate as ongoing entity, with management of the sites
to be retained by the Commonwealth Government.[59]
Specifically, the Review recommended:
- the
Harbour Trust Act should be amended to remove Part 10 and other
provisions related to the scheduled repeal of the Act and
- the
Harbour Trust’s legislative, financial and operational framework and
capabilities should reflect its role as an ongoing entity.[60]
The NSW Government submitted that that the Commonwealth
should commence negotiations to allow for the transfer of the sites back to the
NSW Government by 2033, as ‘the tier of government most experienced and
equipped’ to manage such sites.[61]
This would reflect the need for a ‘whole of harbour approach’ and allow for
‘greater opportunities for [the Harbour] Trust’s sites to play a central role
in the development of a strong network of heritage and public spaces in and
around the Harbour’.[62]
However, the majority of stakeholders who provided
submissions were of the view that the sites should not be returned to the NSW
Government.[63]
The Review noted that stakeholders had raised several concerns about removing
the sites from the control of the Commonwealth, including:
- the
loss of the current legislative framework provided by the Harbour Trust Act
and the protection afforded by the Environment
Protection and Biodiversity Conservation Act 1999 (Cth)
- uncertainty
about how the sites would be funded and managed
- incompatibility
between the objectives of the New South Wales National Parks and Wildlife
Service and the Harbour Trust, particularly in relation to preservation of
built structures and management of adaptive reuse precincts and
- the
potential for large-scale commercial development of the sites.[64]
The Review noted that repealing the provisions in the Harbour
Trust Act which foreshadow the return of the sites to the NSW Government
would not preclude the sites being managed by another entity in the future.[65]
What the Bill does
Currently, Part 10 of the Harbour Trust Act
provides that the Minister must, as soon as practicable after 19 September
2033, specify a day on which the Act is to be repealed, and sets out the
procedure for transferring assets and liabilities of the Harbour Trust prior to
the Act being repealed. Reflecting this, the Preamble to the Harbour Trust
Act states:
The Parliament intends to establish the Sydney Harbour
Federation Trust as a transitional body to manage the land and facilitate its
return in good order. The Trust will transfer suitable land to New South Wales
for inclusion in the national parks and reserves system.
Items 1-2 of the Bill amend the Preamble to remove
the wording around the Harbour Trust being a ‘transitional body’ with the land
to be transferred back to the NSW Government and instead make clear that the
Trust ‘will protect the heritage vales of the land’ through its operation as an
ongoing entity. Items 3 and 9 of the Bill implement the
recommendation of the Review by repealing Part 10 of Harbour Trust Act and
consequential definitions to ensure that the Harbour Trust will continue to
operate beyond 2033.
Changes to
the Membership of the Harbour Trust
Current situation
Part 3 of Harbour Trust Act sets out the current
arrangements with respect to how the Harbour Trust is managed.
Currently, section 10 of Harbour Trust Act provides
that the Harbour Trust consists of eight members (of which one is the Chair).
In order to be appointed by the Minister, a member must be considered a
‘suitable person’, which is defined as a person with qualifications or
experience relevant to one or more of the following fields: environmental and
heritage conservation, Indigenous culture, land planning and management,
business management, or any other field relevant to the Trust’s functions.[66]
Further, one member must be an elected member of an affected Local Council; one
member must, in the opinion of the Minister, represent the interests of
Aboriginal and Torres Strait Islander peoples; and two members must be
appointed on the recommendation of the NSW Government.[67]
What the Review recommended
In considering the Constitution of the Harbour Trust, the
Review noted that a recent Australian
National Audit Office (ANAO) report into the effectiveness of the Harbour
Trust Board had found that ‘the governance and oversight arrangements adopted
by the Board were effective’.[68]
However, the ANAO Report did identify opportunities for improvement, including
allowing for the Board to more actively engage with the Minister and the Department
in relation to the skill requirements for future Board members.[69]
This was also identified by some stakeholders as part of
the review, who expressed the view that:
… the process for appointing Board members is too politicised
and that relevant government experience at an operational level is required to
facilitate cooperation between the Commonwealth, the Harbour Trust and New
South Wales in fulfilling the Harbour Trust’s objectives.[70]
The Review concluded that ‘membership of the Harbour
Trust’s Board should reflect the skills and expertise required for the future’
and made several recommendations aimed at improving the constitution of the
Board:
6(a) The Harbour
Trust Act should be amended to further specify that the appointment of each
member of the Harbour Trust should be based on their expertise in one or more
of the following areas: law, finance, asset management, commercial leasing,
architecture, public administration, Indigenous engagement, heritage,
environment, tourism and marketing.
(b) When an
appointment is made to the Board, an explanation of how these competency
requirements have been considered and addressed should be published.
(c) The
Board should maintain a skills matrix and conduct regular reviews of its
capacity and performance.
(d) Representational
positions for the New South Wales Government and Local Councils should be
retained. These positions should be filled by senior officials with appropriate
expertise from the relevant jurisdiction.
(e) There
should continue to be one member of the Harbour Trust who represents the views
and interests of Indigenous Australians. This position should be filled in
consultation with the Harbour Trust’s Aboriginal and Torres Strait Islander
Advisory Group.[71]
What the
Bill does
Item 7 of the Bill repeals and replaces existing
subsections 12(2), (3) and (3A) to implement recommendation 6(a) of the Review.
Specifically, proposed subsection 12(2) make clear
that a member can only be appointed to the Board where the Minister is
satisfied they have experience or knowledge in one of the following fields:
environment and heritage conservation or heritage interpretation; Indigenous
culture; land planning and management; business, financial, property or asset
management; tourism or marketing; military service; or law. Unlike the current
situation, this is an exhaustive list. The proposed amendments replace the word
‘qualifications’ with ‘knowledge’, whereas the Review specifically focused on
the need for members to have ‘expertise’.[72]
The Explanatory Memorandum is silent on this change. The proposed list of
fields is also slightly different from the list set out in recommendation 6(a)
of the Review, with the most notable changes being the inclusion of ‘military
service’ and exclusion of architecture, public administration, or environment
(though these are arguably capture under land planning and management).
While the proposed amendments do not address
recommendations 6(b) and (c) of the Review, in the Government’s response to the
Review, the Department has advised it is developing protocols for appointments
to the Harbour Trust.[73]
These will include drawing on an enhanced skills matrix maintained by the
Harbour Trust and regular reviews of capacity and performance, and a process to publicly explain how
competency requirements have been considered and addressed after each
appointment is made.[74]
Proposed subsection 12(3) no longer leaves it to
the Minister’s discretion to decide whether a member is able to represent the
interests of Indigenous people but rather requires the Minister to
appoint an Aboriginal person or Torres Strait Islander within the meaning of
the Aboriginal
and Torres Strait Islander Act 2005 (Cth).[75]
In the Government’s response to the Review, the Department has advised it is
also developing protocols with regards to a process for engaging Indigenous
Australians in relation to the appointment of Indigenous people to the Harbour
Trust.[76]
Proposed subsection 12(3A) removes the requirement
for the Minister to appoint an elected member of an affected council and
instead allows the Minister to appoint a member who, in the Minister’s opinion,
provides a local government perspective and experience. According to the
Explanatory Memorandum, this amendment:
… would allow flexibility for the member with a local
government perspective or experience to be a senior official of a council, as
specified in Recommendation 6(d), a current or former elected councillor, or a
person without current affiliation with a Council.[77]
Recommendation
6(d) actually states that representation positions for Local Councils should be
retained and filled by senior officials with appropriate expertise from
the relevant jurisdiction.[78]
While the Review stated that the ‘local government member of the Harbour Trust
should be an official from a Local Council, rather than an elected official, to
reduce the risk of politicisation’,[79]
proposed subsection 12(3A) allows the Minister to appoint any person who
the Minister considers ‘provides a local government perspective and expertise’
(and is eligible for appointment under proposed subsection 12(2)). The
Department has advised that it is developing protocols for a process for
engaging with relevant local councils on these appointments, which may provide
greater clarity around this process.[80]
Items 5 and 6 of the Bill make consequential
amendments to the Harbour Trust Act to remove the existing definition of
‘suitable person’ and make clear that when recommending members to the Minister,
the NSW Government can only recommend persons who have experience and knowledge
in one of fields specified in proposed subsection 12(2).
Contracts
requiring approval by the Minister
Current
situation
Section 64 of the Harbour Trust Act sets out the
current limitations placed on the Trust with respect to entering into
contracts. Specifically, paragraph 64(a) provides that the Trust cannot enter
into a contract for an amount exceeding $1 million, without the Minister’s
approval.
What the
Review recommended
As part of a broader consideration of the Harbour Trust’s
commercial dealings, the Review considered whether the $1 million threshold for
contracts that require the Minister’s approval is still appropriate.[81]
The Review noted that while this threshold was originally introduced as a
control over large commercial undertakings, it now picks up routine operational
business of the Harbour Trust, such as contracts for maintenance and cleaning
services.[82]
The Review recommended that to ensure that the Harbour Trust is able to work
efficiently and with appropriate operational independence, the threshold for
Ministerial approval should be lifted to $5 million.[83]
What the
Bill does
The Government fully accepted the Review’s recommendation.[84]
Item 8 of the Bill repeals and replaces section 64 of the Harbour
Trust Act to increase the threshold for Ministerial approval to $5 million
and to provide for indexation of the threshold amount. Proposed subsection
64(2) makes clear that where a contract includes the option to extend or
renew the contract, the total value of the contract will be calculated as
though the contract is extended or renewed. Therefore, even if the original
amount of the contract falls under the $5 million threshold, if the potential
value of the contract is greater than $5 million it will require Ministerial
approval. Proposed subsections 64(3) to (9) provide that from 1 July
2022 the threshold amount will be adjusted in line with changes to the All
Groups Consumer Price Index published by the Australian Bureau of Statistics.[85]
While this was not recommended by the Review, it is common practice for such
thresholds to be updated to reflect changes to inflation.
Changes to
leasing arrangements
Current
situation
Entering into commercial leasing arrangements is a
significant function of the Harbour Trust and such arrangements play ‘an
important role in the revitalisation and public enjoyment of Harbour Trust
sites’.[86]
Since the commencement of the Harbour Trust Act in
2001, the Harbour Trust has been required to determine the proposed terms and
conditions prior to entering into a lease for a period longer than 25 years,
which then must be set out in a legislative instrument that is tabled in both
Houses of Parliament.[87]
Such an instrument is subject to disallowance in either House and if
disallowed, is taken to be repealed.[88]
The Explanatory Memorandum states that this provision was ‘intended as a
control against inappropriate alienation of trust land’.[89]
At the time the final report of
the Review was published on 18 June 2020, there were 259 buildings on
Harbour Trust sites that are fully or partially refurbished and are used for
commercial purposes.[90]
The Review noted that over half of the Harbour Trust’s total revenue was
derived from commercial and residential rental income (approximately $137.3
million since inception).[91]
What the
Review recommended
The Review noted that ‘the tension between protecting
parkland and heritage values and pursuing appropriate commercial activity was a
strong and consistent theme’ raised by stakeholders as part of the consultation
process.[92]
While the Review concluded that ‘the Harbour Trust has proven itself adept in
allowing only commercial activities that are in keeping with the primary
objectives of providing public access and amenity, and conserving heritage and
environmental value’, it noted that there have been cases where the community
has considered that the Harbour Trust has not achieved the right balance.[93]
The Review also considered whether the current process of
requiring the proposed terms and conditions for a lease over 25 years to be
subject to disallowance was still fit for purpose.[94]
The Review considered the requirement for Parliamentary approval of long-term
leases to be unusual and the risk of the instrument being disallowed led to ‘an
unattractive and unworkable negotiating process from a commercial perspective’.[95]
Some stakeholders advocated for greater flexibility, arguing that the current
arrangements discouraged leases longer than 25 years, which are often necessary
to achieve a return on capital investment and lead to greater investment.[96]
The Review concluded that the current disallowance
requirements ‘are too blunt a tool’ in achieving the objectives of the Harbour
Trust of public ownership, access and amenity of the relevant sites.[97]
The Review recommended that ‘a more nuanced and effective set of controls
should be established’ with respect to commercial leases,[98]
namely that:
- the
Minister should have the authority to approve leases of between 25 and 35 years
on Harbour Trust sites
- leases
of longer than 35 years should remain possible but subject to the following
controls:
- the
site management plans and/or the commercial leasing policy should identify
buildings or areas for which 35-year leases or longer are potentially available
- the
Harbour Trust must publish a statement of reasons outlining why the grant of
the lease is consistent with the objects of the Harbour Trust Act
- the
Harbour Trust should retain authority to enter into leases of less than 25
years.[99]
While the Review noted the commercial benefits that would
arise from allowing the Harbour Trust to enter into leases longer than 35
years, it noted that these benefits needed to be balanced with community
concerns and therefore recommended that such leases continue to be subject to
Parliamentary disallowance.[100]
What the
Bill does
The Government stated that it would pursue amendments to
the Harbour Trust Act in response to the Review’s above recommendation.[101]
Item 8 of the Bill repeals section 64A and replaces
it with proposed sections 64A, 64B, 64C and 64D. In direct
contradiction to the Review’s recommendation that leases of longer than 35
years remain possible, proposed subsection 64A(1) makes clear that the
Harbour Trust must not enter into a lease or licence over Trust land for a
period that is longer than 35 years.[102]
Currently, the Harbour Trust can enter into such leases
provided the terms and conditions of the lease are subject to disallowance. The
Explanatory Memorandum is silent as to why this restriction on the Harbour
Trust’s ability to enter into leases is to be introduced, particularly given
the Review specifically recommended that such a restriction not be introduced
and the Exposure Draft of the Bill did not contain such a restriction.[103]
Proposed subsection 64A(2) provides that the
Harbour Trust cannot enter into a lease that is longer than 25 years but not
longer than 35 years (so between 25 and 35 years) unless the requirements in proposed
sections 64B, 64C and 64D are met. In summary these are:
- consultation
with the community advisory committee and broader public, leading to a
statement of reasons
- preparation
and tabling of a proposal in Parliament (which will be disallowable) and
- approval
by the Minister.
These are examined below.
Consultation
requirements and statements of reasons
Proposed section 64B partly implements the Review’s
recommendation that a written statement of reasons be prepared setting out how
a proposed lease between 25 and 35 years is consistent with the objectives of
the Harbour Trust. Proposed section 64B also requires that the proposed
lease be consistent with any plans for the site that have been prepared and
approved under Part 5 of the Harbour Trust Act.
Proposed subsections 64B(2) to (5) set out
the requirements for the Harbour Trust to consult with community advisory
committees and the broader public in preparing the statement of reasons,
including how any comments are to be incorporated into the statement. The
Explanatory Memorandum makes clear that the Harbour Trust is only required to
‘properly consider comments received through consultation’ and is not required
to make any changes to the statement in response to such comments.[104]
Tabling of
long-term lease proposal in Parliament
Proposed section 64C requires the Harbour Trust to
make, by way of legislative instrument, a proposal with respect to a proposed
lease or licence which is then to be tabled in both Houses of Parliament and
subject to the disallowance provisions set out in the Legislation Act
2003 (Cth). The instrument must specify the following details:
- the
proposed lessee or licensee, and the land the subject of the proposed lease or
licence
- the
period of the proposed lease or license
- the
uses of the land permitted by the proposed lease or license.[105]
The Harbour Trust is also required to prepare an Explanatory
Statement to accompany the instrument, which must attach the statement of
reasons prepared under proposed section 64B.
Ministerial
consent
Proposed section 64D also requires the Harbour
Trust to obtain the Minister’s written approval before entering into a lease or
licence for a period between 25 and 35 years. In giving such approval the
Minister must be satisfied that the proposed lease or licence is consistent
with:
- the
objectives of the Harbour Trust
- any
plans for the site that have been prepared and approved under Part 5 of the Harbour
Trust Act and
- the
proposal prepared under proposed section 64C that was subsequently
tabled in Parliament.
The Minister must also have regard to the written
statement of reasons, which the Harbour Trust must provide under proposed
subsection 64B(6) for his/her consideration.
The Explanatory Memorandum states that this new process:
… allows the Parliament to scrutinise a long-term lease or
license proposal early in the approval process. This makes the process more
workable, because the Harbour Trust and a prospective tenant will know whether
or not a proposal has been allowed by Parliament before commencing detailed
negotiation of terms and the community has an early opportunity to provide
comment through the statement of reasons consultations.[106]
While the Explanatory Memorandum does not specifically
state the exact sequencing for this process, from the above and the text of the
Bill (in particular proposed paragraph 64D(2)(c) and 64C(1)(b) it
appears that the Trust must first prepare the written statement of reasons and
undertake the relevant consultation requirements, before then tabling the proposed
section 64C proposal in Parliament and then, after the disallowance period
has expired, seeking the Minister’s approval.
Amendments
to the Harbour Trust Regulations
Current
situation
Section 73 of the Harbour Trust Act allows the
Governor-General to make Regulations with respect to a range of matters
relevant to the Act. In particular, subsection 73(2) sets out a non-exhaustive
list of matters that the Regulations can prescribe, including regulating the
conduct of persons on Harbour Trust land; granting or issuing licences,
permissions, permits and authorities in respect of Harbour Trust land; and
appointing wardens and rangers.[107]
The Sydney Harbour
Federation Trust Regulations 2001 (the Regulations) commenced on 12 October 2001
and is a legislative instrument for the purposes of Legislation Act.[108]
Following the commencement of the Legislation Act, the Regulations were
scheduled to sunset on 1 October 2019, but the sunset date was
changed to 1 October 2021 by a certificate made under section 51 of the Legislation
Act.[109]
The Government has stated that, upon the Regulations sunsetting, they will be
remade with minor changes to their operation.[110]
What the
Bill does
Item 10 of the Bill amends section 73 to insert proposed
paragraphs 73(2)(oa) to (od). The effect of this amendment is to make clear
that the Regulations may make provisions relating to:
- imposing
liability for offences against the Regulations, which involve vehicles or
vessels, on the owners of said vehicles and vessels
- the
evidentiary requirements in relation to prosecutions for offences against the
Regulations
- the
provision of documents, by the Harbour Trust or another person, to persons
alleged to have committed offences against the Regulations and
- recovery,
by way of penalty, of reasonable costs of the Harbour Trust on behalf of the
Commonwealth, incurred as a result of contravention of an order, direction or
other requirement.
Item 11 of the Bill also amends section 73 to
insert proposed paragraphs 73(2)(ra) to (rb). The effect of this
amendment is to make clear that the Regulations may make provisions relating to
the removal, moving of, disposal and retention of objects (including animals)
that are on Harbour Trust lands.
The Explanatory Memorandum states that this amendment
‘would ensure support for matters provided in the regulations’.[111]
It is somewhat unclear why this amendment is necessary, as the Regulations
already include provisions that relate to the matters set out in proposed
paragraphs 73(2)(oa) to (od) and 73(2) (ra) to (rb).[112]
Subsection 73(2) is also a non-exhaustive list so arguably the Governor-General
could already make Regulations with respect to these matters under subsection
73(1). However, listing these matters in subsection 73(2) makes clear the types
of matters the Government envisages that the Regulations would cover.
New
compliance and enforcement provisions
Current
situation
Currently the Regulations provide a framework to enable
the Harbour Trust to manage and preserve the various sites, by way of an
enforcement and compliance scheme:
- Division
2.1 makes clear that certain prohibited or regulated activities on Harbour
Trust Land are offences and sets out the relevant penalties
- Division
2.2 allows the Harbour Trust to issue licences and permits and makes it an
offence to contravene the conditions of such licences and permits
- Division
2.3 sets out offences relating to the parking of vehicles
- Division
3.1 provides for the appointment of rangers
- Division
3.2 sets out the powers of Trust rangers, particularly with regards to removing
and disposing of property on Trust land
- Division
3.3 provides for the powers of the Harbour Trust in giving orders and consequences
where an order is contravened
- Division
3.4 details the process for issuing infringement notices.
The
Regulatory Powers Act
The Regulatory Powers
(Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act)
commenced on 1 October 2014 and ‘provides for a standard suite of provisions in
relation to monitoring and investigation powers, as well as enforcement
provisions through the use of civil penalties, infringement notices,
enforceable undertakings and injunctions’.[113]
The Regulatory Powers Act only has effect where Commonwealth Acts are
drafted or amended to trigger its provisions. The Attorney-General’s Department
advises that:
Proposals that seek to establish or amend frameworks that
provide for regulatory powers should trigger the standard provisions of the Regulatory
Powers Act, unless there are compelling policy reasons to the contrary.[114]
What the
Bill does
Items 12 and 13 of the Bill activate Part 5
of the Regulatory Powers Act by inserting proposed Part 9A –
Compliance and Enforcement into the Harbour Trust Act. Part 5 of the
Regulatory Powers Act deals with infringement notices. Proposed Part
9A also includes provisions which allow the Harbour Trust to give orders
with regards to persons engaged in promoting, conducting or carrying out an
activity on Harbour Trust land.
Specifically, proposed sections 65B to
65E substantially replicate regulations 37–40 of the Regulations which
currently set out the powers for the Harbour Trust with respect to orders. The
Explanatory Memorandum states that the reason for moving these powers from the
Regulations to the Harbour Trust Act is to establish the Harbour
Trust Act as a more appropriate head of power with respect to orders.[115]
Under proposed section 65D a person will continue to have committed an
offence with elements of strict liability where they fail to comply with an
order given by the Harbour Trust, which is punishable by up to 10 penalty units
(currently $2,220).[116]
Proposed sections 65F to 65H aim to replace
the current infringement notice scheme which is set out in Division 3.4 of the
Regulations with the framework for issuing infringement notices set out in Part
5 of the Regulatory Powers Act. Proposed section 65F provides
that a strict liability offence under the Harbour Trust Act or the
Regulations (which continue to set out the majority of offences) is subject to
an infringement notice under Part 5 of the Regulatory Powers Act.
Item 14 of the Bill clarifies that, following
commencement of these provisions, the Harbour Trust may only give an order
under proposed section 65B and that proposed sections 65F, 65G
and 65H will apply with respect to infringement notices instead of the
Regulations.
Concluding comments
Overall, many of the proposed amendments contained in the
Bill are in line with the relevant recommendations made by the Review,
particularly the Government’s decision to allow the Commonwealth to retain
control over Harbour Trust sites and allow the Parliament a level of oversight
with respect to commercial leases.
Appendix 1 –
Government Response to Recommendations made by the Review
|
|
Recommendation
|
Government response
|
|
1
|
The objects of the Harbour Trust set out in the Sydney
Harbour Federation Trust Act 2001, which focus on public access and
amenity, and the protection, conservation and interpretation of environmental
and heritage values, should remain unchanged.
|
Consistent with the recommendation, the Government is
not proposing to change the objects of Harbour Trust Act.
|
|
2
|
The Harbour Trust sites should remain in public hands.
Existing protections to achieve this, such as s.24 of the Sydney Harbour
Federation Trust Act 2001, should be maintained.
|
Consistent with the recommendation, the Government is
not proposing to change the objects of Harbour Trust Act.
|
|
3
|
Whilst Snapper Island is included in the Harbour Trust’s
Comprehensive Plan, any handover of this site or transfer of any other new
sites to the Harbour Trust will need to be accompanied with sufficient
funding to allow for remediation and ongoing maintenance and management of
the site.
|
The Harbour
Trust will consult with the community on Snapper Island, commencing in late
2020. This will inform consideration of a potential transfer of the Island
from the Department of Finance to the Harbour Trust.
|
|
4
|
The Harbour Trust sites should remain with the
Commonwealth. The transfer of any sites to New South Wales would be premature
at this time. The Review considers that collaboration between the two levels
of government should be strengthened and welcomes the proposal from New South
Wales that a significantly closer relationship between the Commonwealth, the
Harbour Trust and the New South Wales Government is needed.
|
The Government will pursue amendments to the Harbour
Trust Act to remove the presumption that sites will be transferred to
NSW.
Discussions with NSW on options for collaboration
opportunities have commenced. Any future collaboration will be done in the
context of the Harbour Trust Act and the responsibility of the Harbour
Trust for decision-making about Harbour Trust sites.
|
|
5
|
The Harbour Trust should operate as an ongoing entity:
1.
The Sydney Harbour Federation Trust Act 2001 should be amended
to remove Part 10 and other provisions related to the scheduled repeal of the
Harbour Trust Act.
2.
The Harbour Trust’s legislative, financial and operational framework
and capabilities should reflect its role as an ongoing entity.
|
The Government supports the Harbour Trust operating as
an ongoing entity and has commenced the process to amend the Harbour Trust
Act.
The community will have an opportunity to comment on an
exposure draft amendment Bill, prior to introduction into the Parliament in
late 2020 or early 2021.
|
|
6
|
Membership of the Harbour Trust’s Board should reflect
the skills and expertise required for the future:
1. The
Sydney Harbour Federation Trust Act 2001 should be amended to further
specify that the appointment of each member of the Harbour Trust should be
based on their expertise in one or more of the following areas: law, finance,
asset management, commercial leasing, architecture, public administration,
Indigenous engagement, heritage, environment, tourism and marketing.
2. When
an appointment is made to the Board, an explanation of how these competency
requirements have been considered and addressed should be published.
3. The
Board should maintain a skills matrix and conduct regular reviews of its
capacity and performance.
4. Representational
positions for the New South Wales Government and Local Councils should be
retained. These positions should be filled by senior officials with appropriate
expertise from the relevant jurisdiction.
5. There
should continue to be one member of the Harbour Trust who represents the
views and interests of Indigenous Australians. This position should be filled
in consultation with the Harbour Trust’s Aboriginal and Torres Strait
Islander Advisory Group.
|
The Government will pursue amendments to the Harbour
Trust Act to further specify the skills and expertise required for
appointment to the Harbour Trust. The community will have an opportunity to
comment on an exposure draft amendment Bill.
The Department is developing protocols for appointments
to the Harbour Trust. This will include:
drawing
on an enhanced skills matrix maintained by the Harbour Trust, and regular
reviews of capacity and performance
a
process for engaging Indigenous Australians in relation to the appointment of
Indigenous people to the Harbour Trust
a
process for engaging with relevant local councils on appointments for a
person with a local government perspective and experience
a
process to publicly explain how competency requirements have been considered
and addressed after each appointment is made.
The Harbour Trust considered a renewed skills matrix at
the September 2020 Trust Meeting. An annual internal review of Trust Members
capacity and performance will be undertaken by the Chair.
|
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7
|
The organisational capabilities and structure of the
Harbour Trust management and staff should be updated to reflect the expertise
and focus the organisation needs into the future, including by:
1. Establishing a dedicated site manager and staff for
complex and work-intensive sites - in particular North Head Sanctuary and
Cockatoo Island.
2. Reorienting the structure of the Harbour Trust
towards three key streams of activity:
place-based
management
finance,
asset management and commercial operations and
heritage,
tourism and site activation.
3. Refocusing staff capabilities and skills to better
match future operational requirements, including place-based planning;
strategic planning; stakeholder engagement; asset management; financial
management and accounting; environment; heritage; tourism; visitor services;
and precinct and site activation.
|
The Harbour Trust is undertaking an analysis of
organisational capabilities to ensure it is well placed to fulfil its role as
an ongoing entity. This will be completed by early 2021.
|
|
8
|
Community involvement in the work of the Harbour Trust
should be strengthened by:
1. Greater
use of Technical Advisory Committees, to supplement the expertise of the
Harbour Trust when dealing with complex tasks or issues.
2. Reconstituting
and refocusing the Community Advisory Committees as consultative forums so
that they are more directly involved in priority-setting by the Harbour
Trust. This should include the attendance of at least one Harbour Trust Board
member at each meeting.
3. Establishing
a dedicated annual budget for community, volunteer and indigenous projects
aimed at increasing site visitation, enhancing the visitor experience or
improving public access.
4. More
active engagement by the Harbour Trust Board and management with volunteers,
community groups and others at a site-by-site level.
|
The Harbour Trust is developing a new Stakeholder
Engagement Strategy and Governance Framework Plan. Reform to engagement
processes will be implemented as soon as practicable.
|
|
9
|
Collaboration and partnerships need to be strengthened
across strategic, management and operational levels, and across all levels of
government, to establish a stronger ‘whole of Harbour’ approach to planning
of the Sydney Harbour foreshore. The Commonwealth Government should therefore
establish a formal taskforce or partnership with the New South Wales
Government that fosters collaboration and joint planning, supported by a
Memorandum of Understanding that includes:
1. The
inclusion of Harbour Trust sites in the development of a wider Sydney Harbour
vision.
2. The
development of a joint visitor and tourism program of year-round activity
that includes financial contributions from the New South Wales Government,
recognising that this will provide long term economic benefits for New South
Wales.
3. Opportunities
for further enhancing and interpreting the Indigenous values of the sites.
|
Discussions with NSW on options and collaboration
opportunities have commenced.
The Harbour Trust will consider opportunities for
further enhancing and interpreting the Indigenous values of the sites in
conjunction with implementation of recommendation 15.
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|
10
|
The Harbour Trust should consult appropriately and
facilitate a more joined-up approach to the management of contiguous public
lands and facilities held by neighbouring Local Councils and explore
opportunities for additional collaboration, such as a joint calendar of
community events on Harbour Trust sites.
|
The Stakeholder Engagement Strategy and Governance
Framework Plan (refer recommendation 8) will include strategies to improve
the Harbour Trust’s engagement and collaboration with Local Councils.
|
|
11
|
The Harbour Trust should strengthen its capability in
commercial leasing and consider realigning its Leasing Policy to adopt a
separate approach for each site, with additional detail on maintenance
requirements, lease renewal and sub-leasing.
|
The Harbour Trust is developing a new Leasing Policy,
building on recent community consultation on a draft.
The next iteration of the policy will respond to this
feedback, as well as the review and any relevant legislative amendments (see
recommendation 13).
The community will be consulted again on the proposed
new Leasing Policy.
|
|
12
|
The requirement for the Minister to approve contracts of
greater than $1 million should be revised to a $5 million threshold.
|
The Government will pursue amendments to the Harbour
Trust Act to implement this recommendation.
The community will have an opportunity to comment on an
exposure draft amendment Bill.
|
|
13
|
The Minister should have the authority to approve leases
of between 25 and 35 years on Harbour Trust sites. Leases of longer than 35
years should remain possible but subject to the following controls:
1. The
site management plans and/or the commercial leasing policy should identify
buildings or areas for which 35-year leases or longer are potentially
available.
2. The
Harbour Trust must publish a statement of reasons outlining why the grant of
the lease is consistent with the objects of the Sydney Harbour Federation
Trust Act 2001.
Leases of longer than 35 years should continue to be
subject to Parliamentary disallowance. The Harbour Trust should retain
authority to enter into leases of less than 25 years.
|
The Government will pursue
amendments to the Harbour Trust Act
in response to this recommendation.
The community will have an
opportunity to comment on an exposure draft amendment Bill.
|
|
14
|
The Harbour Trust should establish a partnership with
the Environment and Engineering Branch in the Estate and Infrastructure Group
of the Department of Defence, to support the interpretation of the Harbour
Trust sites in respect of their military history.
|
The Harbour
Trust is working to establish a partnership with the Environment and
Engineering Branch in the Estate and Infrastructure Group of the Department
of Defence.
|
|
15
|
Indigenous heritage of Harbour Trust sites should be
recognised and celebrated through improved signage, storytelling and the
provision of information at the sites, particularly Headland Park, North Head
Sanctuary and Cockatoo Island.
|
The Harbour Trust will consult with First Nations groups
on key interpretive elements for Harbour Trust sites and develop a
strategy/program to address gaps identified through the consultation process.
|
|
16
|
The Harbour Trust should employ a Development Manager to
work with its existing volunteer network, engage with Indigenous, military
and veterans’ organisations to promote the heritage of the sites, encourage
visitation and a greater interest in activating sites, progress relevant
projects from the dedicated community fund and encourage relevant sponsorship
and philanthropic investment for the Indigenous and other historical
activities on the sites.
|
This is being considered by
the Harbour Trust as part of its analysis of organisational capabilities.
See response to
recommendation 7.
|
|
17
|
The Commonwealth and New South Wales should convene a
working group of senior officials to collaboratively identify a shared long-term
vision and way forward for North Head Sanctuary.
|
The
Government is providing funding to the Harbour Trust to enable it to consult
with NSW and the broader community on a long-term vision and way forward for
North Head Sanctuary.
|
|
18
|
The existing Deed of Agreement for the North Head
Sanctuary should be amended to include an agreed rehabilitation plan, with
particular emphasis on the School of Artillery complex.
|
The Government will pursue amendments to the Deed of
Agreement that are necessary to support the long-term vision and way forward
for North Head Sanctuary that is being developed in response to
recommendation 17.
|
|
19
|
The amended Deed of Agreement for North Head Sanctuary
should:
1. remove
the requirement for New South Wales to approve leasing arrangements that
extend beyond 1 January 2032.
2. clarify
long term arrangements for the site – that is, whether the site is to be
transferred back to New South Wales, and the preconditions and processes for
doing so.
3. agree
on the objectives for the future state of the site, including appropriate
site activation.
4. identify
the pathways for achieving the shared objectives, including funding
requirements.
5. be
developed with community input.
|
This recommendation will be considered in the context of
work to implement recommendations 17 and 18.
|
|
20
|
A fresh look at Cockatoo Island is required, including:
1. an
immediate injection of funding to address the backlog of critical repairs and
maintenance works to ensure at least current levels of public access are retained
and significant heritage assets are not damaged beyond repair (note this
funding is included in recommendation 21).
2. the
development of a masterplan should be undertaken in consultation with all
stakeholders, including the New South Wales Government, together with a
refresh of the Comprehensive Plan if necessary.
3. an
audit of buildings and structures on the island to determine heritage value,
suitability for future use and required investment, to be conducted by
individuals with expertise in heritage architecture, quantity surveying,
building evaluation and Indigenous heritage.
4. appointment
of a site manager to supervise the development of the masterplan and audit,
identify and address priority works, and develop a site-specific approach for
leasing and rehabilitation.
5. consideration
of the role of Cockatoo Island in a broader New South Wales Government vision
for Sydney Harbour, and nearby sites such as Goat Island (Me-mel), as part of
a wider Harbour tourism experience.
6. keeping
a range of activities on the site to maximise public access and the
opportunities for different kinds of visitor experiences.
7. seeking
to lease out the glamping/camping/accommodation facilities to a commercial
operator.
8. a
staged approach to rehabilitation over time.
9. tasking
and resourcing the Harbour Trust’s Aboriginal and Torres Strait Islander
Advisory Group with developing options for an Indigenous engagement strategy
for the island.
|
The Government is providing
funding to the Harbour Trust to enable it to generate a refreshed plan for
Cockatoo Island, building on the community engagement performed in 2019, as
well as in consultation with the NSW government and other stakeholders.
The Government has also
provided funding to enable urgent repairs and maintenance to be undertaken on
Cockatoo Island and other sites (see recommendation 21).
|
|
21
|
The Government should provide immediate additional
funding to the Harbour Trust to supplement the revenue it generates.
1. This
should include urgent funding of $47 million across the forward estimates
commencing in financial year 2021 for maintenance and upkeep of the sites,
including addressing a backlog of repairs and maintenance.
2. Immediate
one-off funding of $3 million should be provided to the Harbour Trust to
enable the development of the masterplan for Cockatoo Island, an asset audit
for Cockatoo Island and a rehabilitation plan for North Head Sanctuary,
providing a basis for site-specific capital plans.
3. The
Harbour Trust should engage with the New South Wales Government, along with
the private sector, to identify opportunities for additional funding for the
activation of plans for North Head Sanctuary and Cockatoo Island.
4. Further
funding for major rehabilitation should then be based on the processes
contemplated by Recommendations 17–20 and, in particular, site-specific
capital plans which set out the heritage significance of each building, works
to be undertaken, the cost of those works and options for adaptive reuse.
|
The Government has made $47
million available to the Trust to enable it to address critical repairs and
maintenance over the next four years. Any funding beyond this will be
considered in the context of future plans for Cockatoo Island and North Head
that are being developed by the Harbour Trust.
The Government has made $3 million
available to the Harbour Trust to enable it to develop refreshed plans for
Cockatoo Island and North Head Sanctuary, in consultation with community and
NSW Government. This will support consideration of potential future
investments in those sites.
|
Source: C
McNally and E Flaherty, Independent Review of the Sydney Harbour Federation
Trust, report prepared for the
Department of Agriculture, Water and the Environment (DAWE), DAWE, Canberra,
April 2020, pp. IX - XIII and DAWE, Australian Government actions in response to the Sydney Harbour Federation
Trust Review Recommendations,
September 2020 update, pp. 1‑8.
[1]. Sydney
Harbour Federation Trust (the Trust), ‘Background’,
the Trust website, n.d.
[2]. For
a more detailed history of the Trust see: Sydney Harbour Federation Trust (the
Trust), Shaping
the Harbour: the Sydney Harbour Federation Trust 2001-2011, the Trust,
Mosman, 2011, p. 3.
[3]. Liberal
Party of Australia, Protecting
the Sydney Harbour Foreshore, Coalition policy document, September 1998,
pp. 1-2.This information has been taken from the relevant Bills Digest: A Martyn, Sydney
Harbour Federation Trust Bill 1999, Bills digest, 138, 1999–2000,
Parliamentary Library, Canberra, 2000, p. 1.
[4]. K
Beazley (Leader of the Opposition), Labor's
Program of Federation Capital Works, 29 September 1998; A Martyn, Sydney
Harbour Federation Trust Bill 1999, op. cit., p. 2.
[5]. The
Trust, Shaping
the Harbour, op. cit., p. 4.
[6]. Ibid.
[7]. For
a full history of the Sydney Harbour Trust Federation Bill see: Senate Table
Office, Bills
List: Bills before the Parliament for the year as at 12 February 2002,
2001 final edition, p. 102.
[8]. Ibid.
[9]. For
further information on these amendments, see the relevant Bills Digest: P
Pyburne, Sydney
Harbour Federation Trust Amendment Bill 2007, Bills digest, 45,
2007–08, Parliamentary Library, Canberra, 2007.
[10]. Harbour
Trust Act, section 3.
[11]. C
McNally and E Flaherty, Independent
Review of the Sydney Harbour Federation Trust, report prepared for the
Department of Agriculture, Water and the Environment (DAWE), DAWE, Canberra,
April 2020, p. 10.
[12]. The
Trust, ‘Background’,
the Trust website, n.d.
[13]. S
Ley (Minister for the Environment), Independent
Review of Sydney Harbour Federation Trust, media release,
30 October 2019.
[14]. Department
of the Environment and Energy (DEE), Review
of the Sydney Harbour Federation Trust: Terms of Reference, n.d.
[15]. Ibid.;
Ley, Independent
Review of Sydney Harbour Federation Trust, op. cit.
[16]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 5.
[17]. DEE,
Review
of the Sydney Harbour Federation Trust: Terms of Reference, op cit.
[18]. L
Bergin, ‘Why
the rushed review of harbour trust?’, The Sydney Morning Herald,
9 December 2019, p. 27.
[19]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit.
[20]. Ibid.,
pp. ix – xiii.
[21]. Ibid.
[22]. A
full list of recommendations made by the Review is set out at Appendix 1 of
this Digest.
[23]. S
Ley (Minister for the Environment), Letter
from Minister Ley To Harbour Trust Chair Joseph Carrozzi, n.d.
[24]. Department of Agriculture, Water and the
Environment (DAWE), Australian Government actions in response to
the Sydney Harbour Federation Trust Review Recommendations, September
2020 update, pp. 1-2. The Government’s response to each of the Review’s
recommendations is set out at Appendix 1 of this Digest.
[25]. Senate
Standing Committee for Selection of Bills, Report,
5, 2021, The Senate, Canberra, 13 May 2021, [p. 2].
[26]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2021, The Senate, Canberra, 21 April 2021, pp. 32-33.
[27]. Ibid.,
pp. 32-33.
[28]. Ibid.,
p. 32.
[29]. Ibid.,
p. 33.
[30]. Senate
Standing Committee for the Scrutiny of Bills, ‘Ministerial
responses’, The Senate, Canberra.
[31]. Senator
A Bragg, Submission
to the Independent Review of the Sydney Harbour Federation Trust, 31
January 2020, p. 4.
[32]. Ibid.
[33]. T
Plibersek, Submission
to the Independent Review of the Sydney Harbour Federation Trust, 3
December 2019, pp. 1–2.
[34]. Z
Steggall, Submission
to the Independent Review of the Sydney Harbour Federation Trust, 13
February 2020, pp. 1–2.
[35]. Sydney
Harbour Federation Trust, Submission to
the Independent Review of the Sydney Harbour Federation Trust, n.d., p.
3.
[36]. Ibid.
[37]. Ibid.,
pp. 12 and 16.
[38]. NSW
Government, Submission
to the Independent Review of the Sydney Harbour Federation Trust,
February 2020, p. 11.
[39]. Ibid.
[40]. P
Hannam and D Snow, ‘”Backward
step”: NSW government slams Commonwealth over Harbour review’, The
Sydney Morning Herald, (online edition), 18 June 2020.
[41]. The
Review received submissions from a number of community organisations, which are
published on the DAWE website: ‘Independent
Review of the Sydney Harbour Federation Trust’, n.d.
[42]. For
example, see the submission from the Friends of Platypus, Submission to
the Independent Review of the Sydney Harbour Federation Trust, n.d., p.
2.
[43]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 6.
[44]. For
example, see the submission from the Friends of Quarantine Station, Submission,
to the Independent Review of the Sydney Harbour Federation Trust,
December 2019, p. 1.
[45]. Headland
Preservation Group, Submission to
the Independent Review of the Sydney Harbour Federation Trust, n.d., p.
4.
[46]. Explanatory
Memorandum, Sydney Harbour Federation Trust Amendment Bill 2021, p. 1.
[47]. Australian
Government, Portfolio
budget statements 2020–21: budget related paper no. 1.1: Agriculture, Water and
Environment Portfolio, p. 374.
[48]. Ibid.
[49]. The
Statement of Compatibility with Human Rights can be found at pages 21–24 of the
Explanatory Memorandum to the Bill.
[50]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2021, 31 March 2021, pp. 2–5.
[51]. Ibid.,
p. 2.
[52]. Ibid.,
p. 3.
[53]. Ibid.
[54]. Ibid;
Explanatory
Memorandum, op. cit., p. 13.
[55]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, op. cit., p. 4.
[56]. P
Pyburne, Sydney
Harbour Federation Trust Amendment Bill 2007, Bills digest, 45,
2007–08, Parliamentary Library, Canberra, 2007, p. 3.
[57]. For
further information about the Sydney Harbour Federation Trust Amendment Act
2007 see the relevant Bills
Digest for the Sydney
Harbour Federation Trust Amendment Bill 2007.
[58]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 49.
[59]. Ibid.,
p. 15.
[60]. Ibid.
[61]. NSW
Government, Submission
to the Independent Review of the Sydney Harbour Trust, n.d., p. 11.
[62]. Ibid.,
pp. 11–12.
[63]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., pp. 6–7.
[64]. Ibid.,
p. 6.
[65]. Ibid.,
p. 14.
[66]. ‘Suitable
person’ is defined in section 3 of the Harbour Trust Act.
[67]. Harbour
Trust Act, sections 11 and 12.
[68]. Australian
National Audit Office (ANAO), Effectiveness
of board governance at the Sydney Harbour Federation Trust, report, 37,
2018–19, ANAO, Barton, ACT, 2019, p. 9; McNally and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 16.
[69]. ANAO,
Effectiveness
of board governance at the Sydney Harbour Federation Trust, op. cit.,
p. 9.
[70]. McNally and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 16.
[71]. Ibid.,
p. 17.
[72]. Ibid.,
p. 16.
[73]. DAWE,
Australian
Government actions, op. cit., p. 3.
[74]. Ibid.
[75]. Subsection
4(1) of the Aboriginal
and Torres Strait Islander Act 2005 provides that an ‘Aboriginal
person’ means a person of the Aboriginal race of Australia and ‘Torres Strait
Islander’ means a descendent of an Indigenous inhabitant of the Torres Strait
Islands.
[76]. DAWE,
Australian
Government actions, op. cit., p. 3.
[77]. Explanatory
Memorandum, op. cit., p. 7.
[78]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 17.
[79]. Ibid.
[80]. DAWE,
Australian
Government actions, op. cit., p. 3.
[81]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 24.
[82]. Ibid.
[83]. Ibid.,
pp. 24-25.
[84]. DAWE,
Australian
Government actions, op. cit., p. 5.
[85]. Australian
Bureau of Statistics, Consumer
Price Index, Australia: December 2020, released 27 January 2021.
[86]. Explanatory
Memorandum, op. cit., p. 8.
[87]. Harbour
Trust Act, section 64A.
[88]. Legislation Act
2003 (Cth), section 42.
[89]. Explanatory
Memorandum, op. cit., p. 8.
[90]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 22.
[91]. Ibid.
[92]. Ibid.,
p. 23.
[93]. Ibid.
[94]. Ibid.,
pp. 23–24.
[95]. Ibid.,
p. 23.
[96]. Ibid.
[97]. Ibid.
[98]. Ibid.,
p. 24.
[99]. Ibid.,
pp. 24–25. The Review also made recommendations with respect to the Harbour
Trust’s Leasing Policy, which the Government has agreed to implement: DAWE, Australian
Government actions, op. cit., pp. 4–5.
[100]. McNally
and Flaherty, Independent
Review of the Sydney Harbour Federation Trust, op. cit., p. 24.
[101]. DAWE,
Australian
Government actions, op. cit., p. 5.
[102]. Proposed
subsection 64A(3) clarifies that when working out the period of a lease or
licence, where the lease or licence includes the option to renew, the total
duration of the lease or licence will be calculated as though it had been
extended or renewed.
[103]. Sydney
Harbour Federation Trust Amendment Bill 2020: Exposure Draft.
[104]. Explanatory
Memorandum, op. cit., p. 12.
[105]. These
are the same details that must be included in the draft statement of reasons
under proposed paragraph 64B(2)(b).
[106]. Explanatory
Memorandum, op. cit., p. 9.
[107]. Paragraphs
73(2)(i), (l) and (q).
[108]. Sydney Harbour
Federation Trust Regulations 2001.
[109]. Legislation Act
2003, subsection 50(2); Legislation (Deferral
of Sunsetting—Sydney Harbour Federation Trust Regulations) Certificate 2019.
[110]. Explanatory
Memorandum, op. cit., p. 13.
[111]. Ibid.
[112]. See
regulations 24A, 31-36, 40D, 40E and 40O of the Regulations.
[113]. Attorney-General’s
Department (AGD), ‘Regulatory
powers’, AGD website, n.d. For further information on regulatory powers,
see: C Raymond, Regulatory
Powers (Standardisation Reform) Bill 2016, Bills digest, 42, 2016–17,
Parliamentary Library, Canberra, 2016 and C Petrie, Regulatory
Powers (Standardisation Reform) Bill 2020, Bills digest, 49, 2020–21,
Parliamentary Library, Canberra 2021.
[114]. AGD,
‘Regulatory
powers’, op. cit.
[115]. Explanatory
Memorandum, op. cit., p. 14.
[116]. Crimes Act 1914,
section 4AA and the Notice
of Indexation of the Penalty Unit Amount made under that section set the
current value of a penalty unit at $222.
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