New Laws to Better Protect ACT Heritage

Tuesday 5 November 2019 @ 5.22 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 24 October 2019 the Minister for the Environment and Heritage, Mr Mick Gentleman (the Minister), presented the Heritage Amendment Bill 2019 (the Bill) to the ACT Assembly. The key purpose of the Bill is stated as being the making of a range of amendments to ". . . strengthen the way damage to heritage places and objects can be dealt with to both deter people from doing damage in the first place and to make them responsible for repairing any damage to heritage places or objects."

In his presentation speech the Minister indicated that the introduction of the Bill resulted from:

". . . investigations of the unauthorised removal of two Aboriginal scar trees in recent years. . . The loss of these trees has been felt strongly by all of us here today, even more so for our local Aboriginal community. The removal of these trees is a significant loss of an important connection to their culture and their past."

Current Legislation

The Heritage Act 2004 (the Act) is the ACT's primary legislation dealing with the recognition and protection of heritage places and objects, including Aboriginal places and objects.

Currently, responses to offences against the Act, can include:

strict liability offences;
heritage directions made by the ACT Heritage Council (the Council);
heritage orders made by the Supreme Court; and
prosecution for offences.

Limitations Under Current Legislation

Under the current Act there are limitations in the use of “heritage directions” for the protection of heritage places and objects. Heritage directions are only able to be issued for places at "serious and imminent threat", a requirement the Minister says in his explanatory statement does not generally allow for directions to "repair" to be issued after damage to a heritage place has been done, for example, where unapproved works were involved. An additional limitation on heritage directions is that they are unable to be used for "minor to moderate offences" due to the wording of the threshold for application requiring a "serious" threat.

Because of the limitations described the Minister says in his explanatory statement that there is no mechanism to ensure that any damage to a heritage or Aboriginal place or object is repaired, as such, the current system of deterrence applying for heritage offences is not as ". . . effective as it could be, which may result in the loss of community confidence in a robust heritage regulatory system".

Proposed Changes - Outline

The Bill includes provisions that will:

allow the Heritage Council of the ACT (the Council) to issue a heritage direction under section 62 of the Act, to be used where there is an imminent threat to the heritage significance of a place or object, removing the threshold wording of "serious";
allow the Council to issue a repair damage direction for damaged heritage places and objects, if they can be repaired.

The Bill also:

creates an offence of contravening a repair damage direction, with a maximum penalty of 500 penalty units;
provides that if the ACT has to carry out the requirements of a heritage direction, costs can be recovered from the person the direction was given to;
provides that where a repair damage direction is given and the Council refuses to give an extension of time to comply with a repair damage direction, the Council’s refusal will be a reviewable decision in the ACT Civil and Administrative Tribunal.

The Bill further provides that, in line with current defined offence provisions relating to damage of a heritage place or object, the failure to comply with a repair damage direction can be grounds for the Supreme Court to make a heritage order.

Amendments in Detail

The Bill proposes a new section 67A allowing the Council to issue a "repair damage direction" if a person causes "unauthorised damage" to a heritage place or object, including an Aboriginal place or object, and a new section 67C which creates an offence, with a maximum penalty of 500 penalty units, for failing to comply with a repair damage direction issued under the new section 67A. However, the proposed subsection 67C(2) provides that an offence has not been committed if the person charged has a reasonable excuse.

In the context of section 67A, "unauthorised damage" means damage that is not caused by conduct in accordance with a heritage guideline, a heritage direction, a heritage agreement, an approved conservation management plan, a development approval under the Planning and Development Act 2007, an excavation permit or an approved statement of heritage effect.

A repair damage direction may be issued to the owner or occupier of the place or an owner or custodian of the object, or a person whose work affects the place or object and must be in writing and state the place or object to which it applies, the damage to be repaired and when the direction must be complied with.

Directions are considered to be a reviewable decision in the ACT Civil and Administrative Tribunal.

The proposed new section 67B provides for the extension of repair damage direction allowing the Council to give an extension of time to comply with a direction upon application from the person who has been given the direction. Such an application for an extension of time must be in writing and state the reasons why the extension is needed. The Bill does not define what acceptable reasons for an extension are. The rationale for this is to ensure that the decision-maker's discretion is not limited. However, the reasons must be such that ". . . an ordinary member of the community would accept as reasonable in the circumstances".

The proposed new section 67C sets the penalties for the offence of failing to comply with a repair damage direction and the proposed new section 67D provides for situations where the repair has to be carried out by the ACT Government. In such a situation the ACT Government may, with necessary assistance, enter the premises and repair the damage, and recover the reasonable costs of repairing the damage.

The current section 69 of the Act allows the Supreme Court to issue a heritage order if a respondent contravened, is contravening or is likely to contravene a defined offence provision and an order is necessary to avoid material harm to the heritage significance of the place. The current subsection 69(3) of the Act outlines defined offence provisions about which a heritage order may be issued by the Supreme Court. Such provisions, include publishing restricted information without approval, contravention of a heritage direction, diminishing the heritage significance of a place or object, damaging an Aboriginal place or object or contravention of an information discovery order. Subsection 69(3) is proposed to be amended to include the contravention of a "repair damage direction" as a defined offence wherein a heritage order may be issued by the Supreme Court.

Under the current Act section 116 outlines the criminal liability of executive officers and outlines the circumstances under which an executive officer of a corporation commits a relevant offence. Subsection 116(6) defines the relevant offence provisions such as contravention of a heritage direction, diminishing the heritage significance of a place or object and damaging an Aboriginal place or object. It is proposed to amend subsection 116(6) to include a contravention of a "repair damage direction" as a relevant offence.

Ministers Comments on the Bill

The Minister states that the Bill is "regulatory" and that:

". . . owners, occupiers or a person undertaking work on a heritage place or object under a development approval under the Planning and Development Act 2007 or Council advice or approvals under the Heritage Act should be aware of their responsibilities and obligations in relation to the approval or permit . . . Compliance with the provisions of the Bill is important to ensure the protection of the ACT’s heritage assets for current and future generations. Once heritage places are lost, they – and all they represent – are permanently lost to future generations".

Next Steps

According to the Environment, Planning and Sustainable Development Directorate website, a "heritage compliance policy" will be released once the Bill has passed in the Assembly (the website information indicates the Bill is to be debated in early 2020). The policy is to guide the Council and compliance officers on when to use which compliance tool - that is, whether to issue a direction, infringement notice and/or prosecution - or whether to use more than one tool. Current options for prosecution will remain for "serious damage". The policy will be based on best practice of other jurisdictions and other ACT Government compliance and enforcement policies.

"The heritage compliance policy will apply a risk-based compliance approach to enable the targeting of resources to those areas where they are most needed and will be most effective."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.