State Heritage Convention

Bruce Leaver
Executive Director, Australian Heritage Commission
“The National Context - Future Regimes For Heritage Planning”

I use the term ‘heritage’ as the concept applied by the Commonwealth since the enactment of the Australian Heritage Commission Act in 1975.  That is, heritage refers to features of significance in the natural, historic and the cultural environment.  Whilst this application has stimulated debate in recent years I feel comfortable using this coverage in view of the holistic theme of this conference.  I should also add this coverage is included in the definition of environment in the recently enacted Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

For 25 years ‘national heritage’ meant the entry of places on the Register of the National Estate (RNE).  At its inception, the RNE, along with Victoria’s Historic Buildings Act 1974 were Australia’s only historic heritage legislation.  Some state’s natural heritage had been protected in various scenery and wildlife protection Acts extending back many decades, starting with the establishment of Royal National Park south of Sydney in 1879.  Nature conservation was strengthened by the enactment of national parks and wildlife type legislation in NSW in 1967 and extending to all jurisdictions by the late 1970’s.  It took a lot longer for states and territories to have historic heritage protection statutes and, with the enactment of the Tasmanian Historic Cultural Heritage Act 1995, all Australian jurisdictions now have heritage protection legislation.  Indigenous heritage was largely unprotected and even today receives patchy protection varying across jurisdictions from the very good to the very poor.

The RNE has grown to some 13,500 places.  RNE entry of historic sites is often duplicated in state and territory heritage lists and in local government planning instruments.  RNE entry however affords very little protection to a place, being confined to an Australian Heritage Commission (AHC) advisory role associated with the actions of Commonwealth Ministers or Commonwealth agencies.  From a historic heritage perspective a heritage place is far better protected under state regimes than under the RNE. The states, unlike the Commonwealth, have the constitutional power to enact such protection measures.

The RNE has often been described as applying a level of moral protection to a site.  An invocation to protect rather than a practical defence against the bulldozer.

As a vehicle for national heritage protection the RNE has proved to be inadequate.  An effective use of the RNE for a national heritage protection initiative was in relation to the forests listed on the Register.  Actions by a Commonwealth resources Minister in the issue of annual woodchip export licences triggered the advice seeking requirements of s30 of the AHC Act and thus detonated an annual row with the Commonwealth environment Minister.  This debate led to the Regional Forest Agreement process.  It also led to dropping the requirement to have Commonwealth woodchip export licences.

As Australian society became more national in outlook, the lack of an effective national heritage regime started to fuel controversy and debate.  The notion of our federation being a collection of largely independent sovereign states did not stand up when Australians started to debate national heritage matters that transcended state jurisdictional issues.  There was an expanding list of cases that state governments argued was their exclusive business and interstate criticism should butt out.  Examples were sand mining on Fraser Island, oil exploration on the Great Barrier Reef, the logging of tropical rainforests, the damming of Tasmanian wilderness rivers, the logging of Tasmanian old growth forests and so on.

When the Fraser and Hawke governments wished to protect heritage in the national interest they came up against the reality that resource management was the constitutional responsibility of the states.  The only constitutional heritage protection power that was unexpectedly accreted was in relation to the making of laws affecting any race, which was interpreted as giving the Commonwealth power to enact legislation for the governance of Aboriginal people by virtue of the 1967 Referendum (the amendment shown by the deletion):

51.  The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:     (xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

As this amendment is the constitutional basis for protection of the heritage of two races in Australia through the enactment of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. One wonders, given the wording of the above section of the constitution, whether Commonwealth power exists in relation to the protection of the heritage of other races, for example the very rich Chinese heritage or even, dare I say it, British imperial heritage in Australia – I digress.

In the search for a constitutional tool to stop the Franklin-below-Gordon Dam the incoming Hawke government used the Commonwealth’s constitutional powers (s51xxix.) relating to making laws with respect to external affairs.  The argument went that the area was listed under the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage.  Australia has a treaty obligation to protect the world heritage values:

Article 4

Each State Party to this Convention recognises that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State.  It will do all it can to this end, to the utmost of its own resources…

Article 5

To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:

d. to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage;

Based on the state party treaty obligations the Commonwealth enacted the World Heritage Properties Conservation Act 1983 to halt the construction of the Tasmanian Gordon-below-Franklin Dam.  The legislation was found to be constitutionally valid by a narrow majority in a subsequent High Court challenge.

There was now a tool to protect national heritage and it was subsequently used to protect the Wet Tropics rainforests.  Conservation groups ever since have lobbied subsequent governments to use World Heritage to protect a range of environments of interest to those groups.  They have also used Australia’s participation in the operation of the World Heritage Convention to press their environmental concerns into the administration of the convention by the World Heritage Committee made up of parties to the convention.

The initiative stopped the Franklin Dam.  There are now 14 World Heritage properties but, by the very nature of the listing process, World Heritage is a poor instrument to protect national heritage.  Issues relevant to this view are:

It is interesting to note that state governments have moved on from a position of considerable hostility to World Heritage nominations.  There is now great enthusiasm to have state properties listed under the convention.  The problem is that nominations are now being advanced that clearly qualify for national heritage significance but will have a hard struggle to get over the high bar of the universal heritage significance threshold.

Given the limitations associated with the use of the World Heritage Convention are their other external affairs powers that the Commonwealth can use to protect heritage of national significance?

The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict seems to do the trick.  It gives the Commonwealth power to identify and protect ‘movable or immovable property of great importance to the cultural heritage of every people’.  Alas we need a war.  If we had the cultural heritage site equivalent of the Franklin Dam then, provided the Commonwealth invaded the state, the site could be protected under a Commonwealth law.  The Hawke Government Attorney-General Gareth Evans’ use of F111s to spy on the Franklin Dam construction was perhaps closer to constitutional success than he realised.

By the mid-1990’s the AHC realised that the approach to national heritage needed a review.  The RNE, important as it was in the history of heritage identification, is a poor tool to protect national heritage and, in any case, was being increasingly duplicated in state and territory heritage regimes.  The use of World Heritage to protect national heritage was also proving to be a cumbersome and limiting instrument.  In 1996 the Commission started public discussion and debate on the future direction of national heritage protection.  The Commission released, and widely circulated, three publications and sought stakeholder views about the ideas they contained.  The first paper was titled A National Future for Australia’s Heritage - Discussion Paper (August 1996).

In addition to the publications, the Commission held eight general workshops with stakeholders and seven workshops for indigenous stakeholders throughout Australia from November 1996 to March 1997, and numerous meetings with government Ministers and departments, stakeholders, industry groups, and professional groups.  This process culminated in the National Heritage Convention in 1998 at Old Parliament House in Canberra.

The Commission’s review influenced the Commonwealth’s position in relation to the Council of Australian Government (COAG) heritage related discussions as part of the review of the 1992 Intergovernmental Agreement on the Environment.  Those discussions led to the 1997 COAG Agreement on Commonwealth Roles and Responsibilities for the Environment.

This agreement detailed a list of matters of National Environmental Significance (NES) that all parties agreed that should form the basis for Commonwealth focus in environmental matters.  These matters were World Heritage places, wetlands of international importance, listed threatened species and communities, listed migratory species (a group of matters falling under foreign affairs powers), matters relating to environmental impact of nuclear actions, the marine environment and the protection of places of national heritage significance.

These matters, except the heritage issue, formed the basis for the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).  In relation to heritage the COAG agreement committed all signatories to develop a National Heritage Places Strategy identifying criteria, standards and guidelines for the protection of heritage by each level of government.  It proved not possible to gain agreement on the Strategy from States and Territories.  There was a lack of resolution on a number of issues, in particular, common standards, the coverage of heritage, the power of the Commonwealth to protect historic heritage and the right of veto of a state over the listing of a place of national heritage significance.

Notwithstanding the unresolved issue of protection of places of national heritage significance the EPBC Act as passed provided a significant improvement in national heritage protection.  The definition of ‘environment’ under s528 of the Act clearly includes what is generally accepted as ‘heritage’ covering the natural, biological, historic and other cultural elements of the environment:

528          environment includes

(a)         ecosystems and their constituent parts, including people and communities; and

(b)         natural and physical resources; and

(c)     the qualities (attributes) and characteristics of locations, places and areas; and

(d)    the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b) or (c)

The Act protects heritage on all Commonwealth land:

26  Requirement for approval of activities involving Commonwealth land

(1) A person must not (without prescribed approval) take on Commonwealth land an action that has, will have or is likely to have a significant impact on the environment

Heritage everywhere is protected from the actions of the Commonwealth:

28 Requirement for approval of activities of Commonwealth agencies significantly affecting the environment

(1) The Commonwealth or a Commonwealth agency must not (without prescribed approval) take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction

These provisions are backed by heavy penalties and access to the Federal Court (though s475) where interested parties can seek injunctions and orders to ensure that the Act and related instruments are complied with.  The EPBC Act (s487) also provides ready access to legal processes for the judicial review of decisions taken under the Act.  I will discuss these matters later on.

These major steps in heritage protection are, as yet, not generally realised or well understood.  Under the EPBC Act, heritage is now significantly better protected than it is under the Australian Heritage Commission Act but the matter of the identification and protection of places of national heritage significance remained unaddressed.

In view of the outstanding COAG national heritage matter the Commonwealth decided to proceed with the incorporation of national heritage place protection through amendment to the EPBC Act based on Commonwealth constitutional powers.  At the same time it was decided to address some outstanding issues in relation to the identification and protection of Commonwealth heritage places.

The Environment and Heritage Legislation Amendment Bill 2000 proposes the amendment of the EPBC Act to include a new trigger after Subdivision A – World Heritage, being Subdivision AA National Heritage.

These amendments provide the same level of penalty as for World Heritage in relation to the taking of an action that may have a significant impact on the values of a national heritage place.

I earlier mentioned that the Commonwealth has constitutional power to apply blanket protection to World Heritage places through the foreign affairs powers granted by the constitution and obligations under the World Heritage Convention.

For national heritage places the constitutional powers that can be drawn upon are much narrower and the Bills draw on these, requiring approval for actions effecting a national heritage place associated:

The Bills create offences for taking actions that will have or is likely to have a significant impact on the national heritage values of a national heritage place (without the approval provisions of the Act).  Those offences relate to:

Putting it another way.  The level of protection afforded to a national heritage place depends on its location and/or the values of the place in question.  A national heritage place in Commonwealth areas or in a territory or a national place with biodiversity and indigenous heritage values are fully protected against the actions of anybody.

A place with historic, cultural or natural values (other than biodiversity) is protected in a Commonwealth area, in a territory, against the actions of the Commonwealth, against the actions of a constitutional corporation or for the purposes of trade or commerce.  Historic national heritage is not protected against the actions of an individual, state or local government or a non-trading body such as an educational institution or a church.

This somewhat untidy outcome reflects the constitutional realities and the refusal of state governments to cede heritage protection powers to the Commonwealth (Constitution section 51.xxxvii) to allow for the full protection of places of national heritage significance.

I shall not go into the proposed listing and management provisions of the Bills.  Copies of the Bills and the report of the Senate Committee inquiry into the Bills can be viewed through the Parliament home page: www.aph.gov.au  

A copy of the EPBC Act and extensive public information and notification material can be read on Environment Australia’s home page: www.ea.gov.au  I commend this site to any person or group interested in protection of the environment.  You will be able to read of all applications before the Minister for actions that could significantly impact on the environment, together with copies of proposals, determinations and environmental impact assessments.

The shortcomings of the RNE as a protection mechanism were recently well illustrated in the controversy to protect the foundations of the 1821 Old Government House at Port Macquarie.  The foundations had been unearthed during excavation for a motel development.  The NSW Government put an Interim Conservation Order on the site but were unwilling to implement long term protection measures.  After the developer promised to record the site on a CD before construction the Order was lifted.  There was a major outcry from the local heritage community.  The Australian Heritage Commission under took an urgent assessment of the site and, at a special meeting of the Commission, agreed to list the area on the RNE.  The Commission, along with the NSW Heritage Office, also paid the developer’s holding costs to forestall construction while the protection options were explored.  As a tool to protect this site of probable national significance the RNE listing was useless.  If the Bills before Parliament had been enacted then the Federal Government could have invoked the emergency listing provisions and assessed the site properly, including negotiating conservation and management agreements with the property owner.  The Commonwealth would have the constitutional power in this case because a financial or trading corporation was proposing the actions.

Luckily the story had a happy ending.  At the 11^th hour the NSW Government announced that it was making a $1m grant to conserve the site.

The Bills before Parliament include the Australian Heritage Council Bill.  This Bill establishes the Australian Heritage Council, being the successor of the Australian Heritage Commission.  The Council will be the Government’s peak body for heritage advice.  As well as nominating and assessing places of heritage significance the Council will have a role in advising on promotion, research, training or educational activities, national policies and financial assistance.  The Council will also advise on the monitoring of the condition of places included in the National Heritage List or Commonwealth Heritage List, and provide comment when Commonwealth Ministers propose action that may have an adverse impact on a Commonwealth heritage place.

Under the new regime the RNE will no longer be added to, with the Commonwealth’s focus being on heritage of international, national and Commonwealth significance.  The intellectual and financial investment of the RNE however will be retained.  The data base is being upgraded to ensure that the information contained in the RNE not only continues to be available to the community but is also available for the administration of the EPBC Act, particularly section 28 which regulates the actions of the Commonwealth anywhere throughout Australia.

Returning to the future regimes for heritage planning in the national context (the theme of this presentation) the protection of heritage (natural or cultural) can therefore be considered as either:

If any of these sites are not being protected according to prescribed instruments (agreements, management plans, regulations, development conditions etc) or injurious actions are being undertaken or threatened without due environmental impact assessment then a citizen or organisation can seek orders from the Federal Court. 

Section 475 of the EPBC Act empowers the Court to issue:

A prohibitory injunction restraining the person from engaging in the conduct together with an order requiring the person to do something (including repair or mitigation of damage to the environment).

A mandatory injunction where a person has or proposes to refuse or fail to do an act, which would constitute an offence or other contravention of the Act the regulations, the Court may grant an injunction requiring the person to do the act.

An interim injunction where, before deciding an application for an injunction under this section, the Court may grant an interim injunction:

(a) restraining a person from engaging in conduct; or

(b) requiring a person to do an act.

Heritage at the national level is better protected than it ever was, backed by ready access to the Federal Court.  That access, by definition, lies in the hands of bodies like the National Trust.

(7)     For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:

(a) the organisation’s interests have been, are or would be affected by the conduct or proposed conduct;

(b) if the application relates to conduct—at any time during the 2 years immediately before the conduct

(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and

(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment;

Community public interest groups are using this part of the legislation, assisted by the National Environmental Defenders Office.  Many are not, owing to uncertainty and fear of costs being awarded against them although the Act’s provisions lessen that uncertainty:

478  No undertakings as to damages

The Federal Court is not to require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.

Use of the injunction provisions of the EPBC Act is not the only avenue of redress open.  The Act also prescribes:

487  Extended standing for judicial review

(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:

(a) a decision made under this Act or the regulations; or

(b) a failure to make a decision under this Act or the regulations; or

(c) conduct engaged in for the purpose of making a decision under this Act or the regulations.

(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if (subsection 3 similarly applies to an organisation or association (whether incorporated or not)):

(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment

The effect of this section is to allow community access to the extensive redress provisions of the Administrative Decisions (Judicial Review) Act.  That Act places an obligation on decision makers to comply with a raft of principles including natural justice and procedural fairness, consideration of relevant evidence, not considering irrelevant evidence and so on.  It also requires transparency of decision making and empowers the Federal Court to set decisions aside.  The Act is worth a read and can be copied from the web site    http://scaleplus.law.gov.au/

The use of Federal environmental law by community interest groups is a brave new world.  Last year I visited the Pacific north-west states of the USA to study the impact of federal environmental law on the operation of the forest industry.  Whilst close parallels have to be cautiously made it was very interesting to note that major reform of that industry was driven through citizens and interest group access to the Federal Courts forcing the US Government to do no more than what their own legislation told them to do.  Government and industry were bewildered bystanders in this protracted process.  It was also interesting to note how strategic those interest groups have become:

Earthjustice Legal Defense Fund, formerly the Sierra Club Legal Defense Fund, is the non-profit law firm for the environment.  For more than a quarter century, the Legal Defense Fund has represented hundreds of environmental clients, large and small, without charge.

When reason and persuasion fail to protect the environment, the Legal Defense Fund goes to court to safeguard public lands, national forests, parks and wilderness areas; to reduce air and water pollution; to prevent toxic contamination; to preserve endangered species and wildlife habitat; and to achieve environmental justice.

The resources for this and similar law firm are based small core numbers with an extraordinarily large access to lawyers who give their services pro bono.  This service is given as either a community service contribution or from lawyers keen to gain expertise in environmental law.

To recap the recap:  there are already new heritage protection regimes at the national level and these are about to be added to.  Strong penalty provisions back these regimes and opportunities for community interest groups to take action that ensures what should be done is in fact done.  In terms of heritage planning in the national context an organisation such as the National Trust has the opportunity to: