Nov 12, 2002

Environment and Heritage Bills 2002





Second Reading

12 November 2002

Mr ALBANESE (Grayndler) (8.41 p.m.)—One of the reasons that heritage legislation is important is that it is a recognition that it is not only the natural environment that is beautiful, culturally significant and worthy of protection; human existence has brought us many man-made structures which are also beautiful, of cultural significance and worthy of protection. Sometimes the two can combine in spectacular ways. Every time I am away from home and see the quintessential Sydney visual of the Sydney Opera House and Sydney Harbour Bridge either from or to the Sydney Harbour National Park, it gives me a real sense of pleasure. The familiarity of our surroundings gives us all a sense of security and a recollection of fond memories.

Last Friday, I had the honour of going back to the Great Hall of the University of Sydney. It was a very special day. I was there to see Tom Uren be awarded an Honorary Doctorate of Science in Architecture. It was a marvellous ceremony and Tom delivered a fine speech which reflected his philosophy of `pragmatic idealism’. Tom left school at age 14, went to fight in World War II in 1939, was captured on Timor, was a captive in Changi in Singapore, worked on the Burma-Siam railway, and ended the Second World War in Japan. He actually saw the second atomic bomb blast in Nagasaki from a distance. So it was an extraordinary privilege to be there when he was awarded an honorary doctorate from the University of Sydney. Tom has truly inspired many people and he is a public figure who is very much loved. I am proud to be his friend and his comrade.

This legislation—the Environment and Heritage Legislation Amendment Bill (No. 1) 2002, the Australian Heritage Council Bill 2002 and the Australian Heritage Council (Consequential and Transitional Provisions) Bill 2002—concerns one of Tom Uren’s finest achievements: the creation of the Australian Heritage Commission and the Register of the National Estate. In seeking to amend these bills, it is important to consider the historical context in which landmark national heritage legislation was first enacted. In 1973 the then Whitlam Labor government set up a committee of inquiry to evaluate Australia’s natural environment, Aboriginal sites, buildings and sites of historical and archaeological significance. It found:

The Australian Government has inherited a National Estate which has been downgraded, disregarded and neglected. All previous priorities accepted at various levels of government authority have been directed by a concept that uncontrolled development, economic growth and “progress” and the encouragement of private as against public interest in land use, use of waters and indeed in every part of the National Estate was paramount.

It made two recommendations: first, that a permanent statutory authority be set up to work with the states, local government, voluntary groups and members of the public for the protection, conservation and presentation of the National Estate; and, second, that a fundamental task of this commission be to start surveying the National Estate and making an inventory of its components. In tabling the report to the parliament, the then Minister for Urban and Regional Development, Tom Uren, noted:

The Committee has devoted a great deal of work to defining with precision the things that make up the National Estate. It has opted for a very wide ranging definition of the National Estate, which can be summed up in this way: Elements of such outstanding world value that they need to be conserved, managed and presented as part of the nation as a whole; and elements of such artistic, social, historical, cultural or other special value to the nation or any part of it that it should be conserved, managed or presented for the benefit of the community as a whole. This very broad definition of the National Estate extends from great national parks and awesome rainforests to a simple stand of trees or patch of coastline. It includes the remaining treasures of our colonial architecture and such homely parts of the national heritage as paddlesteamers and even a Chinese joss house.

The legislation to set up an Australian Heritage Commission was prepared by Professor David Yencken, the interim chairman of the committee of inquiry, along with the Department of Urban and Regional Development. In his book Straight Left, Tom Uren recalls:

… some within DURD were not happy about creating a statutory authority, thinking that the Department would lose control. There was also disagreement over the authority of the Minister within the legislation. The interim chairman of the Committee a Mr. David Yencken however pushed for the Commission to be free of ministerial control and I supported his position.

One aspect of the legislation was the establishment of a national register comprising those aspects of the built and natural environments which were most worthy of preservation. The Australian Heritage Commission Bill was introduced into parliament in May 1975 by Minister Uren. He described its broad aims as follows:

To set up an Australian Heritage Commission on a broad and representative basis to advise the government and the parliament on the condition of the National Estate and how it should be protected; to establish and maintain a register of the things that make up the National Estate, to require that the Australian Government, its department and agencies, and those acting on its behalf, respect the National Estate and do all that they can to preserve it.

In July 1976, the Australian Heritage Commission was established as an independent statutory authority. Its functions included: on its own motion, or on the request of the minister, to give advice to the minister on matters relating to the National Estate, including advice relating to action to identify, conserve, improve and present the National Estate; to identify places included in the National Estate; and to prepare a register of those places.

Today, the Register of the National Estate has over 13,000 places on it. In my electorate of Grayndler, there are a number of places on the register. There are great civic buildings such as the Leichhardt Town Hall, the former Marrickville Town Hall and the former Annandale council chambers. There are local schools such as Annandale North Public School, Leichhardt Public School, Summer Hill Public School and Dulwich Hill High School. There are churches such as the former St Andrew’s Presbyterian Church in Leichhardt and St Peter’s Anglican Church and its graveyard. There are post office buildings such as those at Marrickville and Annandale and the one which used to be the post office at Summer Hill. There are other places of significance which are very diverse: the Golden Barley Hotel on Edgeware Road in Enmore, the Leichhardt civic precinct, the Yeo Park band rotunda in Ashfield and even the Johnstons Creek sewer aqueduct in Annandale.

The main weakness of the Australian Heritage Commission Act 1975 really came about because the Commonwealth was not sure of its powers to enact legislation to completely protect these places of historical significance. Being listed on the Register of the National Estate does not of itself provide any real legal protection to a place unless the proposed action is being taken by the Commonwealth. Even then, the Commonwealth can take adverse action if it is satisfied that there is no feasible or prudent alternative and that all measures have been taken to minimise the adverse impact. There are no civil or criminal penalties for breaches of the act. The commission has no power to direct private owners or state or local governments on actions that might affect a place on the register. This is because, at the time the legislation was enacted, it was thought that the Commonwealth did not have the constitutional authority to enact these provisions. We now know that is not the case.

Despite its limitations, the 1975 act has been extremely effective in protecting many places from development activities. Most state heritage regimes have concentrated on protecting the built environment rather than heritage sites in natural areas or Indigenous places, so the 1975 Commonwealth legislation has been able to afford some protection—albeit within the limitations I have outlined—to those places not covered by state legislation. Over the past 25 years, there have been calls from a number of interests, including resource development industries such as fishing and mining, to significantly weaken the Commonwealth legislation affecting places in natural and Indigenous areas. Reducing Commonwealth protection for such areas would have left them without that limited Commonwealth protection. It is now an appropriate time to strengthen Commonwealth heritage laws. To date, however, the present government has been unsuccessful in formulating a revised comprehensive national heritage regime. In April 1999 the then minister, Senator Hill, issued a consultation paper entitled A national strategy for Australia’s heritage places. The strategy required rationalisation of existing state-Commonwealth arrangements and therefore amendment to some states’ legislation. The senator could not get agreement from the states, and this strategy collapsed.

A package of heritage bills was introduced in 2000 and it was periodically debated in the Senate during 2001. This original package of bills did not even reach this House—the people’s house, the House of Representatives. These bills’ main proposals were to abolish the Australian Heritage Commission, to establish an Australian Heritage Council, to abolish the Register of the National Estate and to establish two new lists: a National Heritage List and a Commonwealth Heritage List. The Commonwealth Heritage List was to contain places of heritage value in Commonwealth areas and the National Heritage List was to contain places of national heritage value that are not in Commonwealth areas. Another main proposal of the bills was to offer more comprehensive protection against destruction or significant damage to those places listed than was available under the 1975 act. For the National Heritage List, it was proposed that Commonwealth agencies would be bound, with the threat of fines, not to take any action that would have or would be likely to have a significant impact on the heritage value of a place. Individuals and corporations were also bound, with similar threats of fines and in some instances jail, where the place was a Commonwealth place or one where the Commonwealth has obligations under the international biodiversity convention or where the place has Indigenous heritage values.

It was also proposed to vest with the minister the decision making power as to whether or not to list a place. This was a significant change because it was about taking away the power from the council. That was a main area of concern. There was no guarantee that places on the Register of the National Estate would be listed on the National Heritage List and the Commonwealth Heritage List, and for those places likely to be listed it would take some time for assessment and listing processes to be completed. Places not on the lists would not be afforded any Commonwealth protection. This was particularly troubling for places of significance to Indigenous people, which in some states are not afforded protection under state legislation. But the biggest area of concern was that the decision to list a place should be independent of the minister and party politics.

These concerns remain with the present bills. These bills were introduced into the House of Representatives in June this year. Like the previous bills, the new bills seek to abolish the Australian Heritage Commission and to establish an Australian Heritage Council and two new lists: the Commonwealth Heritage List and the National Heritage List. There are some good proposals as part of this. Unlike in the previous bills, the Register of the National Estate is retained. Like the previous bills, the new bills introduce legal protection for heritage places listed on either of the two new smaller lists. They provide protection for national and Commonwealth heritage places outside of Australia—an example would be Anzac Cove. They ensure greater responsibilities for Commonwealth agencies in relation to Commonwealth heritage places that they intend to sell or lease. And they do ensure greater accountability of the environment minister and relevant Commonwealth agencies.

But the legislation still very much comes up short. The only way that places can obtain legal protection is by becoming listed on one of the new lists. Like the earlier proposals, the decision whether or not to list a place on one of these two new lists is to be made by the environment minister rather than an independent council or commission. In his submission to a Senate committee on the introduction of the 2000 bills, the inaugural chair of the commission, Professor Yencken said:

The decision to include or not include and to remove places from national registers or lists should be vested in an independent professional body not in the Minister. For 25 years the Commission has had this responsibility. In Victoria under a coalition government the Heritage Act was amended to transfer the responsibility of listing from the Minister to the Victorian Heritage Council with appropriate safeguards, despite the fact that the protective provisions are much stronger in the Victorian Act than under the proposed national legislation.

It is very significant that you had a Victorian Liberal government doing the right thing, not being frightened of the independence of a body to list and to protect our heritage. But here, this government is determined to control, in a political fashion, the process, the outcomes and the functioning of this heritage legislation. Professor Yencken went on to recommend:

The new council should retain the current functions and powers of the Australian Heritage Commission. It should have the scope to act of its own motion related to listing, advice, education, training, promotion and research as under the Australian Heritage Commission Act. There should be provisions in the bill to ensure … that the Council will be independent and not subject to undue political or bureaucratic influence. Decisions to list or not to list should remain the responsibility of the council.

These recommendations were supported by the Australian Conservation Foundation, whose submission stated:

Listing is a technical decision, not a political decision, and needs to be based on clearly defined and specified criteria. It is a decision in which the Minister should be seen to be at arm’s length and one for which the Australian Heritage Council should be publicly accountable through a public appeals process … it is very important that there is a clear separation of responsibilities between listing decisions as against management decisions or political decisions.

I fully endorse the comments of both Professor Yencken and the Australian Conservation Foundation. There are other problems with the bill that Labor’s amendments seek to address. The government is pursuing its proposal to remove the tax deductible status for gifts of land and donations to the Register of the National Estate. The government wants share options for corporate executives to be tax deductible, but not philanthropic donations to preserve our natural and built heritage. The bill also proposes to limit heritage protection to the values of a place rather than the place itself. The implications of not transferring all Commonwealth places onto the proposed Commonwealth Heritage List are very dangerous for places like the Georges River in Sydney, Myilly Point in Darwin or Point Nepean in Victoria.

I pay tribute to the role of the shadow minister, Kelvin Thomson, who has shown real leadership on these issues and that he would be an outstanding environment minister. He has indicated that if Labor’s amendments are not carried we will vote against this bill. It is a shame that this debate has gone almost full circle and that we are forced to re-argue these matters of independence for the supreme national heritage body that were discussed and debated at length before the inception of the 1975 act.

It is typical of the political perspective of the current government that, in its attempt to improve and strengthen worthwhile institutions, it has put forward proposals which are reflective of a move backwards. Labor are committed to the preservation of the Australian Heritage Commission and its fine work and we are concerned to see that it is given the legislative tools it needs to strengthen its independent authority. It is only then that we can be confident that the innovative vision of people like Tom Uren and the first commissioner, David Yencken, can be truly realised. I urge the parliament to support Labor’s amendments to this bill. (Time expired)