Alert Digest No. 10 of 1995
Part 2

5.1

This Bill was introduced into the Legislative Assembly on 6 September 1995 by the Honourable Rob Maclellan MP with the Honourable Bill McGrath MP.

5.2

This Bill provides a framework for heritage protection and conservation in Victoria to repeal the Historic Buildings Act 1981, the Historic Shipwrecks Act 1981 and to amend the Archeological and Aboriginal Relics Preservation Act 1972. The main purposes are:-

to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects;
to establish a Heritage Council;
to establish a Victorian Heritage Register.

5.3 _Ż Part 2 - Heritage Administration

Clause 6 establishes the Heritage Council. It consists of 10 members appointed by the Governor in Council on the recommendation of the Minister. Clause 8 sets out its functions. Clause 12 is the delegation provision which allows delegation of the Heritage Council's functions. An Executive Director must be appointed under section 14. Clause 15 sets out the functions of the Executive Director. Clause 16 enables the delegation of the Executive Director's functions.

5.4 _Ż Part 3 - The Victorian Heritage Register

Clause 18 establishes the Victorian Heritage Register. Clause 20 sets out the categories of registration. Clause 23 governs nomination for inclusion in the Heritage Register. Clause 24 specifies that certain nominations are not to be accepted. However under clause 25 if significant additional information is received then such nominations may be accepted. Pursuant to clause 27 if the Executive Director considers that land surrounding a registered or nominated place is important to its protection, then he or she may accept a nomination.

Fourteen days written notice must be given to the owner of the land or the place under clause 29. The Minister may exempt the requirement to give such notice. The Committee wrote to the Minister in respect of the publication of any exemption granted under clause 29 on 14 September 1995. The Minister responded by way of letter dated 28 September 1995. The relevant extract is set out:-

"Clause 29

The Committee was of the view that any exemption granted by the Minister under this provision should either be tabled in the Parliament or published in the annual report of the Heritage Council.

As the Committee will be aware, the Bill proposes that protection be able to be provided to a broad range of places, including historic precincts and cemeteries. The proposed exemption provision is intended to provide a practicable recourse in instances where it is not feasible to give notice to all owners. For example, in the case of certain cemeteries, descendants of plot holders have ownership of individual monuments and there may be administrative difficulties in establishing who such descendants are. I envisage that the proposed exemption would be rarely used but accept the Committee's view that any instance of the use of the provision should be reported to the Parliament. Accordingly, I intend to propose a House amendment obliging the Heritage Council to include details of any exemption granted in its annual report tabled in Parliament."

If the nomination is accepted the Executive Director may recommend to the Heritage Council that a place or an object be included in the Heritage Register. The Executive Director may also include in the recommendation the categories of works and activities which may be carried on without the need for a permit under this Act. Under clause 34 a written statement must be given to the owner and the nominator and the municipal council setting out the terms of the recommendation, a brief statement of the cultural heritage and significance of the place or object and advice that the Heritage Council will make a decision on the recommendation within a period of 60 days from the date of the notice of the recommendation.

5.5 _Ż Division 3 - Decision of Heritage Council

Clause 38 allows any person to make a written submission to the Heritage Council. A person making such a submission may request an opportunity to be heard by the Heritage Council in relation to the submission. The Heritage Council may ask the person for more information, conduct a hearing into the recommendation or determine the recommendation without a hearing if no request for a hearing has been made by a person with a real and substantial interest in the place or object. The Heritage Council must conduct a hearing into a recommendation if a person with a real and substantial interest requests a hearing. Clause 42 sets out the decisions which the Heritage Council may make.

5.6

Pursuant to clause 43 the Minister may direct the Heritage Council to refer the recommendation to the Minister for determination. If a direction is so given, the Heritage Council may be required to consider any submission and conduct any hearings in relation to the submissions. The Heritage Council must comply with any requirement of the Minister under section 44. The Minister may make any determination under new section 45.

New clause 51 provides that the Executive Director must give written notice without delay to the owner of a place or object of any decision of the Heritage Council in relation to that place or object and to any works or activities that may be carried out in relation to the place or object without a permit under Part 4. The Committee wrote to the Minister on 14 September 1995. seeking advice as to why the provision does not specify a minimum number of days in addition to the "without delay" requirements. The Minister responded by way of letter dated 28 September 1995. The relevant extract is set out:-

"Clause 51

The Committee sought advice as to why this provision does not specify that written notice be given within an appropriate number of days as well as providing that it be given without delay.

I understand that the provision requiring the Executive Director to give written notice uses the words "without delay" instead of specifying a maximum number of days because it is expected that notice would normally be able to be given immediately. There would already be a strong incentive for the Executive Director to give written notice without delay since the owner might otherwise commence works which detracted from the heritage value of the place. However, I accept the Committee's view that the provision could specify an appropriate number of days as well as providing that the notice be given without delay. Accordingly, I will propose a House amendment obliging the Executive Director to give notice without delay and within seven days of the decision of the Heritage Council."

5.7 _Ż Division 6 - Interim protection orders

Clause 56 enables the Heritage Council or the Executive Director to make an interim protection order which must be served on the owner or occupier. An interim protection order takes effect on the service of the order. Clause 62 sets out the period for which an interim order continues to be in force.

5.8 _Ż Part 4 - Permits and covenants

Clause 64 prohibits certain activities and sets out the penalties. There is an exemption for alterations carried out for liturgical purposes under clause 65. Other exemptions from obtaining permits may be obtained under clause 66. Clause 67 governs applications for permits to carry out works or activities in relation to a registered place or registered object. Clause 71 sets out the matters to be considered in determining applications. Under clause 72 a permit may be issued on any terms and conditions that the Executive Director thinks fit. A notice of refusal must set out the reasons for the refusal.

Appeals

Under clause 73 the applicant, the owner of a registered place or registered object or a person with a real and substantial interest in the registered place or registered object may appeal to the Heritage Council against a determination by the Executive Director. The Committee wrote to the Minister on 14 September 1995 seeking further advice as to first, how the question of whether a person has a "real and substantial interest" is determined and second, if it is determined by the Heritage Council, what avenue of appeal is available when the finding is adverse. The Minister responded by way of letter dated 28 September 1995. The relevant extract is set out:-

"Clause 73

Clause 73 allows the applicant, the owner of a registered place or object or a person with a real and substantial interest in the registered place or object to appeal to the Heritage Council against decisions of the Executive Director to refuse to issue a permit or to impose conditions on a permit. This appeal right is broader than the equivalent provision (section 28) of the Historic Buildings Act 1981 which restricts the right of appeal to the applicant for the permit. The Historic Shipwrecks Act 1981 and the Archeological and Aboriginal Relics Preservation Act 1972 do not provide a right of appeal against decisions on permits matters.

The Committee sought advice as to how the question of whether a person has a "real and substantial interest" is determined, and if determined by the Heritage Council, what avenue of appeal is available against a determination of the Council that a person did not have a real and substantial interest.

The Heritage Council is to make the determination of whether a person has a real and substantial interest and there is to be no provision for appeal against this determination. The right of appeal for the owner and other persons with a real and substantial interest is intended to enable any person whose property interests would be affected by the decision to refuse the permit to have a hearing, even if that person is not the applicant for the permit.

For example, the buyer of a property would have a right to a hearing if a decision was taken to refuse a permit during the settlement period for that property. There is to be no avenue of appeal against determinations of the Council that a person did not have a real and substantial interest since it is unlikely that there would be any disagreement or uncertainty about determinations of this kind in relation to this clause, which relates only to appeals against decisions by the Executive Director to refuse to issue a permit or to impose conditions on permits which are issued.

Any person may lodge a submission in relation to a permit application. However, third parties who had lodged a submission opposing the application would not wish to appeal against a decision not to issue a permit. Persons inclined to appeal against a decision not to issue a permit would be persons who had a material interest in the place or object."

The Committee notes the comments in the Second Reading Speech:-

"Currently, a permit is required for any alteration to a building or land registered under the Historic Buildings Act 1981 and appeals against the Council's decisions are determined by the Minister who may seek a report from the Administrative Appeals Tribunal (AAT). The AAT has rarely been used for this purpose........

Appeals by the owner or any person with a real and substantial interest against decisions not to issue a permit under this Act are to be heard by the Council, unless the Minister refers the appeal to the AAT for determination. The Minister will also have a call-in power. The Heritage Act is to provide no avenue for appeals against decisions made under the Planning and Environment Act 1987."

Clause 74 provides that the Heritage Council must determine the appeal within 60 days of it being lodged. The Heritage Council must conduct a hearing into the appeal unless the appellant agrees to the determination of the appeal without a hearing. Clause 75 gives the Minister the power to direct the Heritage Council to refer the appeal to the Administrative Appeals Tribunal for determination or to refer the appeal to the Minister for determination. Clause 76 provides that if the Minister gives a direction under section 75 the Heritage Council must refer the appeal to the Administrative Appeals Tribunal. Clause 77 provides that if the Minister determines the matter pursuant to section 75(b) the Minister must require the Heritage Council to provide a report on the appeal including a report on any submissions. Clause 79 allows the delegation of the powers of the Executive Director to the responsible authority for the area in which the place or object is situated.

Covenants

Clauses 80 and 81 enable the owner of land to enter into covenants with the Heritage Council and the National Trust. Notice of covenants must be published in the Government Gazette and newspapers. The Heritage Council must consider any submissions received within 28 days. Any covenant entered into must be registered.

5.9 _Ż Part 5 - Historic Shipwrecks

Clause 89 governs the Historic Shipwrecks Advisory Committee. Its 12 members are appointed by the Heritage Council. Clause 91 sets out the functions of the Advisory Committee. Pursuant to clause 92 the Executive Director may make recommendations to the Heritage Council. The Heritage Council may make determinations after considering such recommendations. Clause 96 provides for recommendations for provisional registration. Clause 98 provides for recommendations for protected zones. Division 4 governs the protection of historic shipwrecks and relics. Clause 105 makes it an offence to remove articles which are part of a historic shipwreck from Victoria otherwise than in accordance with any terms and conditions of a permit issued by the Executive Director. Clause 106 prohibits certain activities in relation to historic shipwrecks and relics. Clause 107 makes it an offence to be near historic shipwrecks with certain equipment. Permits must be obtained for exploration pursuant to clause 108 from the Executive Director. Rewards may be paid under clause 111. Clause 113 governs the payment of compensation where the Crown has declared ownership of remains of ships or relics. Claims must be made within 6 months. The Supreme Court may award compensation against the Crown as it considers just in the circumstances.

5.10 _Ż Part 6 - Protection of archaeological places

Clause 115 provides that the Heritage Director must establish and maintain a Heritage Inventory. Clause 118 provides for the erection of notices indicating that is a registered archaeological place. Note subclause (2) which provides that the fact that a notice is not erected at a place under this section does not affect the liability of any person for a contravention of this Part or any regulations relating to archeological sites. The Committee wrote to the Minister on 14 September 1995 seeking further information as to the purpose of subclause (2). The Minister responded by way of letter dated 28 September 1995.. The relevant extract is set out: -

"Clause 118

The Committee sought advice as to the purpose of subclause 118(2) which is picked up from section 19(2) of the Archaeological and Aboriginal Relics Preservation Act 1972 and which states that the fact that a notice is not erected at a registered archaeological place does not affect the liability of any person for offences relating to archaeological sites.

Often the activities of third parties pose significant threats to archaeological places. The Bill seeks to address this issue in several ways.

Under clause 21 of the Bill, the Executive Director must include in the Register sufficient details to identify the place but if the Council determines that a place may be damaged (by third parties) if it is fully identified, the Council may direct the Executive Director to limit the identifying details in the Register. Similar limitations can be applied in relation to statements provided about archaeological sites under clause 34.

Clause 118 of the Bill is intended to enable the Executive Director to erect notices at certain registered archaeological places where such a notice would be likely to reduce the risk of either accidental or wilful damage being done to the place by such individuals.

A notice which publicises the existence and significance of an archaeological place located in an area subject to heavy visitation or used for a variety of purposes can often help to protect such a site by advising visitors/users of appropriate behaviour. However, a notice which draws undue attention or activity to a fragile archaeological place or to one remote from the supervision of an owner/manager can endanger the site. Clause 118 seeks to provide the Executive Director with sufficient discretion to deal with either situation.

In the absence of subclause 118(2), subclause 118(1) would create a possible defence for persons who committed offences at sites where a notice had not been erected, since there could argument about whether there had been a "failure" by the Executive Director to erect a notice. Given that the use of notices is directed at third parties and not at owners/managers and that the offences relating to archaeological places already impose on the Crown a burden of proof relating to whether a person knowingly took a certain action, I consider that subclause 118(2) provides a reasonable balance of fairness and enforceability for archaeology offences under the Bill."

The Museum of Victoria is the official place of lodgement of archaeological relics. Clause 121 makes it an offence to damage or disturb unregistered relics and unregistered archaeological sites. Clause 123 enables the Executive Director to issue consents. Under clause 128 it is an offence to buy, sell or possess relics without consent.

5.11 _Ż Part 7 - Heritage Fund

Clause 129 establishes the Heritage Fund. Pursuant to clause 132 the Heritage Council may with the consent of the Minister borrow money. The Treasurer may execute a guarantee in respect of money which is borrowed. The Heritage Council may accept gifts. Pursuant to clause 134 the Heritage Council may make loans and grants. The Heritage Council may acquire land, sell and lease property and with the consent of the Minister provide special assistance to the owner of a registered place for the purpose of conserving that place (Clauses 136, 137 and 138).

5.12 _Ż Part 8 - Enforcement and legal proceedings

Clause 140 provides for the appointment of inspectors. Clause 144 sets out the general powers of entry. An inspector may not enter a residence unless the occupier of the residence has consented in writing to the entry. In the absence of consent 2 days' clear notice must be given to the occupier. Under clause 145 an inspector may require any person in a registered archaeological place damaging or reasonable suspected of damaging an archaeological relic to leave the place. Clause 146 sets out the powers of inspectors in relation to seizure and forfeiture of archaeological relics. Clause 147 sets out the powers of inspectors in relation to historic shipwrecks.

Clause 148 allows an inspector to arrest without warrant a person if the inspector reasonable believes that the person has committed certain specified offences and that proceedings against the person by summons would not be effective. A person so arrested must be immediately brought before the Magistrates' Court. Under clause 149 an inspector may apply to a magistrate for the issue of a search warrant. Clause 150 enables an inspector to seize any ship, vehicle, equipment or article that he or she reasonably believes to have been used in the commission of an offence against Part 5. Clause 154 provides that the owner of a registered place or registered object must not allow that place or object to fall into disrepair. Clause 155 enables the Executive Director to serve notices to show cause why works should not be carried out to prevent further deterioration. If the owner fails to show cause, the Executive Director may order that those works be carried out within a specified period. An owner may appeal against such an order within one month to the Administrative Appeals Tribunal under clause 157.

Division 3 Orders of the Supreme Court - Infringement notices

Clause 161 sets out the orders that a Supreme Court may make. Clause 162 allows inspectors to serve infringement notices. An infringement notice may require additional steps to be taken. Withdrawal of infringement notices is permissible under clause 164. Clause 169 allows the Executive Director, an inspector or the Director of Public Prosecutions to institute proceedings.

5.13 _Ż Part 9 - General, Part 10 - Transitional provisions, Part 11 - Repeals and consequential amendment to other Acts

Clause 175 is the general regulation making provision. Clause 176 gives the Governor in Council the power to make regulations relating to historic shipwrecks and relics. Clause 177 gives additional regulation making powers which enables regulations to apply, adopt or incorporate by reference to any document formulated or published by the Trust or by any authority or body.

Part 10 contains transitional provisions. Part 11 repeals various Acts and makes consequential amendments. Schedule 1 sets out the membership and procedures of bodies. The Committee wrote to the Minister on 14 September 1995 in respect of concerns in relation to clauses 4 and 10 in Schedule 1. The Minister responded by way of letter dated 28 September 1995. The relevant extract is set out:-

"The Committee is of the view that fees which a member of the Council or a committee of the Council is entitled to receive should be dealt with by way of regulation rather than fixed by the Minister. Alternatively, the Committee believes that such fees should be published and declared disallowable instruments for the purposes of the Subordinate Legislation Act 1994. Further, the Committee is of the view that there should not be a discretion for differential rates to be paid to particular members except for the Chair.

These provisions of the Schedule are intended to allow payment of fees in line with the policy guidelines issued from time to time by the Department of the Premier and Cabinet and by the Department of Treasury and Finance. It is not considered necessary to set the levels of payment by regulation since they will be consistent with the Government's published policy guidelines and would be subject to audit.

I agree that there should not be a discretion for differential rates to be paid to particular members except for the Chair. I understand that the existing wording of the Schedule is not intended to provide such a discretion, but it is apparent that the wording is not sufficiently clear. Accordingly, I will propose a House amendment to replace the words " in respect of that Member" with the words "in respect of a Member or Chairperson" in clauses 4 and 10 to put the issue beyond doubt."

Schedule 2 makes various consequential amendments.

5.14 _Ż Alteration of the jurisdiction of the Supreme Court - Section 85 - Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968

Clause 174 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining actions of the kind described in section 104(5). Clause 104(5) gives the Executive Director the power to give directions in relation to the custody of historic shipwrecks and relics. By notice in writing, a person may be required to take any action specified in the notice. Such action includes but is not limited to:-

keeping the article in a particular manner or place;
removing the article to a particular place within a particular time;
doing a particular act in relation to the article within a particular time, being an act designed to assist in the conservation of the article;
making the article available for inspection within a particular time and for the periods specified in the notice;
delivering the article into the custody of a particular person for the purpose of operations designed to conserve the article or for the purpose of public exhibition.

An action does not lie against a person in respect of any action taken by the person pursuant to a notice given to him or her under the section.

The Committee notes the comments in the Second Reading Speech:-

"Sub-clause 104(5) provides that a civil action does not lie against a person in respect of any action taken by the person pursuant to a notice given to him or her under sub-clause 104(1). Sub-clause 104(1) enables the Executive Director by notice in writing to require a person who has possession of a historic shipwreck article or relic to take specified action for the purpose of conserving, exhibiting or providing access to the article. The rationale for granting this immunity from suit to a person to whom the Executive Director gives a notice is as follows.

The effect of clause 104 is to transfer immunity which is currently granted to a person who takes action in pursuance of a notice given to him by the Minister under section 16(1) of the Historic Shipwrecks Act 1981 to a person to whom the Executive Director gives a corresponding notice under the Heritage Act. Accordingly, sub-clause 104(5) does not introduce an additional limitation of jurisdiction on the Supreme Court.

A person to whom such notice is given should be able to comply with the notice without becoming liable to suit. Under sub-clause 104(4), a person to whom a notice is given and who does not comply with the notice becomes liable to a penalty of 100 penalty units in the case of a natural person or 200 penalty units in the case of a body corporate. An equivalent penalty provision occurs in section 16(4) of the Historic Shipwrecks Act 1981. The granting of immunity from suit in these instances also has the virtue of precluding a situation in which persons may be liable to suit if they comply with a notice and liable to a penalty if they do not comply with the notice."

The Committee is of the view that the proposed provision is appropriate and desirable in all the circumstances.

CONTINUE browsing Alert Digest No. 10 of 1995

Alert Digest No. 10 of 1995 Part 2

Alert Digest No. 10 of 1995
Part 2