Until 2004 the listing and protection of places of national heritage was the responsibility of the Australian Heritage Commission under the Commonwealth Australian Heritage Commission Act 1975 (Cth). In 2004, this Act was repealed by the Australian Heritage Council (Consequential and Transitional Provisions) Act 2003 (Cth) as part of a new legislative system for national heritage. The current regime incorporates national heritage protection into the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Australian Heritage Council Act 2003 (Cth) establishes the Australian Heritage Council, an expert body to advise the minister on issues regarding the listing of heritage areas. The Heritage Council also continues the management of the Register of National Estate under the previous regime. A Heritage List contains places and areas of national heritage value.
Section 528 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) defines heritage value of a place as including the place's natural and cultural environment, having aesthetic, historic, scientific or social significance, or other significance for current and future generations of Australians.
Section 22 of the Australian Heritage Council Act 2003 (Cth) has guidelines for including places on the National Register. Places listed must meet one or more of the following features:
- be important to the natural or cultural history of Australia
- contain rare endangered parts of Australia’s natural or cultural history
- have the potential to give information on Australia’s natural or cultural history
- have unique characteristics of a class of Australia’s natural or cultural places or environment
- exhibit characteristics valued by a community or cultural group
- be important in demonstrating a high degree of technological achievement of a particular period
- have special association with the life or works of a person or a group of people, for spiritual or cultural reasons
- be important to indigenous tradition.
For more information about the Commonwealth Heritage Protection regime, see the website of the Department of Sustainability, Environment, Water, Population and Communities.
Australia was one of the first countries to sign the World Heritage Convention. This is an international treaty to protect places that exhibit outstanding universal natural or cultural values. There are currently nineteen Australian properties on the World Heritage List including the Great Barrier Reef, the Tasmanian Wilderness, the Wet Tropics of Queensland and Shark Bay in Western Australia. Some places such as Kakadu National Park, Uluru-Kata Tjuta National Park, Willandra Lakes Region and the Tasmanian Wilderness are listed for both natural and cultural criteria. The only South Australian site on the World Heritage Register is the joint listing of the “Australian Fossil Mammal Sites at Naracoorte (SA) and Riversleigh (Qld)".
Australia’s first cultural heritage place, the Royal Exhibition Building in Melbourne, was inscribed on the World Heritage list in 2004. For the latest information on World Heritage sites or nominations visit the Commonwealth Department of Sustainability, Environment, Water, Population and Communities website at http://www.environment.gov.au/heritage/places/world/list.html.
The adoption of the World Heritage Convention in Australian law is through the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth). The EPBC Act applies to Commonwealth, State, and even privately owned property which has been nominated for inclusion on the World Heritage List.
The EPBC Act identifies World Heritage properties as a matter of national environmental significance (MNES). This means that a person must not take an action that has or is likely to have a significant impact on the world heritage values of a declared World Heritage property without first obtaining the permission of the Commonwealth Minister for the Environment.
Under the Significant Impact Guidelines prepared under the EPBC Act, an impact is regarded as significant if:
- one or more of the world heritage values is lost; or
- one or more of the world heritage values is degraded or damaged.
There are three South Australian Acts devoted to the preservation of the cultural and built environment in this State:
Although the first two Acts may be used to some extent to protect the natural environment as well, they are generally administered with a view to protecting the built environment such as buildings, monuments, historical features and even townships.
The Heritage Places Act 1993 (SA) is intended to preserve, protect and enhance the environmental, social and cultural heritage of the State. The Act establishes a six to eight member State Heritage Council to administer the South Australian Heritage Register, investigate the value, to promote and establish (in appropriate cases) State heritage areas and oversee heritage agreements.
The Council also advises the Minister for Sustainability, Environment and Conservation on development affecting registered places or State heritage areas, heritage agreements, funding and other matters concerning heritage conservation as well as providing advice and assistance on heritage conservation matters to councils, planning authorities, owners of land and other people. The South Australian Heritage Register is maintained by the Council. Places of heritage value may be entered in the Register by the Council on its own initiative or on application by any person.
A place is of heritage value if it satisfies one or more of the following criteria:
- demonstrates important aspects of evolution of State history
- has rare, uncommon or endangered qualities that are of cultural significance
- may yield information relevant to States history including its natural history
- is an outstanding representative of a particular class of places of cultural significance
- demonstrates a high degree of creative, aesthetic or technical accomplishment or is an outstanding representative of particular construction techniques or design characteristics
- has strong cultural or spiritual associations for the community or group within it
- has a special association with the life or work of a person or organisation or an event of historical importance.
There are special provisions dealing with places of geological, palaeontological or archaeological significance. State heritage areas may also be recognised under the relevant local Development Plan pursuant to the Development Act 1993 (SA).
The State Heritage Council will provisionally enter a place in the register if it considers that it is of heritage value or that the place should be protected while its heritage value is assessed. If a place is provisionally entered on the register the authority must give notice of the provisional registration to:
- the owner together with the reasons
- the public by newspaper advertisement
- the Minister
- to the local council, where the place is within a council area.
Members of the public have three months after the notice is given to write and make submissions as to whether the registration should be confirmed. A person may also ask to make oral representations to the authority and may be allowed, unless the submission is frivolous. After considering all representations the authority may, if it considers it appropriate, either confirm the entry in the Register or remove the entry. Notice of the confirmation or removal of the provisional entry in the Register must be given in writing to the owner of the place, the Minister, the council (where appropriate) and by public notice in a newspaper circulating in the State. The Minister may override an entry in the Register and direct that it be removed if the Minister believes that it is not in the public interest. The owner of a place can appeal against a decision to confirm or not to confirm the provisional entry of land in the Register. The authority may remove places from the Register where it is of the opinion that registration of a place is no longer justified. Public notice of the proposed removal must be given and people have three months to make representations on the proposal.
Under the Development Act 1993 (SA) the definition of "development" includes the demolition, removal, conversion, alteration or painting of, or addition to, a State heritage place or any other work that could materially affect the heritage value of the place. Such development requires authorisation but must be first be referred to the Minister for Sustainability, Environment and Conservation, who must respond to the proposal within two months. In practice, referrals are to the Heritage section of the South Australian Department of Environment, Water and Natural Resources.
Before granting approval the relevant planning authority (see LOCAL GOVERNMENT AND PLANNING) must consider the Minister's response. If the planning authority is a council it must also obtain the Development Assessment Commission's agreement if it proposes not to totally adopt the Minister's recommendation. If the Commission does not grant approval the applicant may appeal to the Environment Resources and Development Court. If the Commission fails to respond within six weeks, the council's decision will prevail. A planning authority must advertise a proposal affecting a heritage place and if it is a Category 2 or 3 development (see LCOAL GOVERNMENT AND PLANNING) a person is then entitled to make representations regarding the proposal and in the case of Category 3 proposals may appeal to the court if aggrieved by the planning authority's decision.
There are three types of binding Heritage Agreements that can be entered into between a person who is responsible for a heritage item or place and the South Australian State Government.
Under the Heritage Places Act 1993 (SA), Heritage Agreements can, after consideration by the Minister for Sustainability, Environment and Conservation with the State Heritage Council, be made between the Minister and the owner of land constituting a registered place or State Heritage Area. The Minister responsible for the Native Vegetation Act 1991 (SA) may enter into a heritage agreement with the owner of land on which there is native vegetation.
The Minister responsible for the Aboriginal Heritage Act 1988 (SA) may enter into a heritage agreement with the owner of the land on which an Aboriginal site, object or remains is situated. An Aboriginal site is one having significance according to Aboriginal tradition, archaeology, anthropology or history.
A heritage agreement can impose restrictions and duties on the owner of the item that is the subject of the agreement. These restrictions may include limiting the way the owner uses the item or property. The agreement may also require the owner either to carry out work for the preservation or enhancement of the item or place, or to allow the work to be done. These restrictions and duties will also be binding on occupiers and all subsequent owners of the item or place and the agreement is registered in the Lands Titles Registration Office or in the General Registry Office by the Registrar-General.
A person who enters into an agreement may receive financial assistance and technical advice or assistance. Where the agreement is made for the purpose of preserving or enhancing native vegetation it may release the owner from the duty to pay all, or part, of the rates and taxes (including council rates) relating to the item.
A heritage agreement can be varied or terminated by mutual consent between the parties to the agreement or in any other manner or circumstances provided for in the agreement. Where a party to a heritage agreement fails to comply with it or it appears they may fail to comply, any other party to the agreement may apply to the Environment Resources and Development Court for an order securing compliance.
The State Heritage Council can protect a property if it considers that a place has sufficient heritage value to justify its preservation or that a place should be evaluated to determine whether its heritage value justifies its preservation. If necessary, the Council can make an order stopping any work to a place or prohibiting the commencement of any work that might reduce or destroy the heritage value of the place. A stop order can be used to delay a proposal to demolish a building with heritage value pending the authority's evaluation of the matter. A stop order only lasts for twelve working days after it has been served unless, within that time, the Council applies to the Environment Resources and Development Court to have the order confirmed. When making a stop order the Council must also provisionally enter the place in the Heritage Register (see Entry onto the State Heritage Register). A person who disobeys a stop order may be fined up to $120 000 [Heritage Places Act 1993 (SA) s 30].
Where a person is convicted of an offence under the Heritage Places Act 1993 (SA), the Environment Resources and Development Court may, in addition to imposing a penalty for the offence, order the person to make good any damage caused as a consequence of the offence. To further deter people from breaching stop orders or damaging heritage places, the court can, in addition, order that no development of the place be undertaken during a period up to ten years, except for the purposes of making good any damage previously caused.
The National Trust of South Australia Act 1955 (SA) established the National Trust of South Australia. The National Trust is best known for its work with built heritage, however it also controls a large number of natural heritage sites throughout the State. The Trust is charged with the responsibility of promoting the:
- preservation and maintenance of land and buildings of beauty or historic, scientific, artistic or architectural interest for all South Australians and, as far as is practicable, to preserve the natural aspects, features and animal and plant life of those lands
- protection and augmentation of the amenities of those lands and buildings and their surroundings
- preservation of furniture, pictures and chattels of national, historic, artistic or scientific interest
- access to, and enjoyment of, those lands, buildings and chattels by the public. Under the Act a council is established to manage the affairs of the trust. Members of the public are eligible for membership of the trust on payment of a specified fee
The discussion which follows is based on the South Australian state legislation. It is important to be aware that there is also Commonwealth legislation dealing with Aboriginal heritage called the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). This Commonwealth Act contains some similar but not identical provisions to the State Act. It does not, for instance, provide for a Register and the provision relating to protection of items where they are found [s 20] applies only to Aboriginal remains.
However, because the Commonwealth has power over Aboriginal affairs under the so-called "race power" under the Constitution, a provision or even any ministerial act under the Commonwealth Act would take precedence over the State Act and its procedures. This was one of the legal issues involved in the dispute over the Hindmarsh Island (Kumarangk) Bridge.
In most cases however, the Commonwealth policy has been to allow state legislation and policy to apply without interference, as long as the Commonwealth thinks the state's general provisions are sound and in accordance with appropriate Aboriginal affairs policy and international obligations (eg., human rights and environmental obligations). This is generally seen to be the case with the South Australian legislation. The South Australian Aboriginal Heritage Act 1988 (SA) protects and preserves Aboriginal heritage within the State.
The Aboriginal Heritage Act 1988 (SA) establishes an Aboriginal Heritage Committee comprised of Aboriginal people from all parts of the State. This Committee advises the Minister on making entries in central archives, on measures that should be taken to protect or preserve Aboriginal sites, objects or remains, on the appointment of inspectors and on the administration of the Act and the protection and preservation of Aboriginal heritage.
The Register of Aboriginal Sites and Objects is maintained by the Minister for Aboriginal Affairs and Reconciliation who normally acts on the advice of the Aboriginal Heritage Committee. An Aboriginal site or an Aboriginal object are those that are of significance according to Aboriginal tradition, archaeology, anthropology or history.
Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation. Local archives may also be kept containing information relating to Aboriginal sites or objects. Entries in the Register can happen at any time, but must be made if a person applies to take action on private land containing an Aboriginal site, object or remains.
If an application is made the Minister can request further information and demand that the applicant engages an expert to provide such information. Before entering a site or object on the Register, or approving action on land containing a site or object, the Minister must consult with traditional owners, the Aboriginal Heritage Committee and any other Aboriginal organisation or person with an interest in the matter.
Entry on the Register creates a conclusive presumption that an item is an Aboriginal site or object; a determination by the Minister that an item should not be placed on the Register creates a conclusive presumption that it is not an Aboriginal site or object, but such a decision can be reversed. There is no provision for members of the public or a landowner to object to entry of an Aboriginal site or object in the Register of Aboriginal Sites and Objects.
Information entered in the central or local archives must normally be kept confidential unless the traditional owners of the site or object have approved disclosure. Information can only be obtained where a person proposes to undertake an activity and it is believed that the land contains an Aboriginal site or object or these are discovered while carrying out activities on the land.
An owner or occupier of land who discovers an Aboriginal site, object or remains must report it to the Minister for Aboriginal Affairs and Reconciliation as soon as practicable or may be fined up to $50 000 if body corporate or $10 000 or imprisonment for six months for a person [see Aboriginal Heritage Act 1988 (SA) s 20].
An inspector may give directions prohibiting or restricting access or activities affecting a site, object or remains, if satisfied that urgent action is necessary for protection or preservation purposes. A person who fails to comply with directions given by an inspector may be fined up to $10 000 and jailed for up to six months and a body corporate may be fined up to $50 000 [see Aboriginal Heritage Act 1988 (SA) ss 25 and 26].
It is an offence to damage, disturb or interfere with any Aboriginal site, damage any Aboriginal object or damage or interfere with or remove any Aboriginal object or remains. The maximum penalty is $50 000 in the case of a body corporate and $10 000 or imprisonment for six months in any other case[see Aboriginal Heritage Act 1988 (SA) s 23].
The Protection of Movable Cultural Heritage Act 1986 (Cth) protects Australia's heritage of movable cultural objects which are important for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons. The Act establishes a National Cultural Heritage Committee that advises the Minister on the operation of the Act and to objects that should be included in, or removed from, the Control List.
The National Cultural Heritage Control List is a list prescribed by regulation and contains categories of objects that constitute the movable cultural heritage of Australia and which are therefore subject to export controls. The list divides objects into:
- Class A objects, which cannot be exported except with a certificate; and
- Class B objects which can only be exported in accordance with either a permit or certificate.
The difference between a permit and a certificate is set out in the Act.
An appeal can be made to the Administrative Appeals Tribunal if the Minister refuses to grant a permit or certificate or imposes conditions. Anyone who exports, or attempt to export, an Australian protected object commits an offence and may be fined up to $200 000 for a body corporate and $100 000 or imprisonment for a period of five years (or both), for a person. In addition, the object is forfeited. Inspectors are given wide powers of search and arrest to enforce the provisions of the Act.
The Historic Shipwrecks Act 1976 (Cth) is the Commonwealth Act which, together with similar legislation passed by the States, protects shipwrecks and related articles that lie in the waters around the Australian coast that are older than 75 years of age. Regulations under the Act prohibit all kinds of activities (such as trawling or diving) that might damage a historic shipwreck or relic. Permits to explore and recover historic shipwrecks and relics are granted by the Minister. Anyone finding the remains of a ship or an article associated with a ship must notify the Minister as soon as practicable. Rewards and compensation are payable under the Act. A person who damages, interferes, or disposes of, a historic relic or shipwreck (or part of it), or removes it from the water may be fined up to $10 000 or gaoled for five years (or both).
The Historic Shipwrecks Act 1981 (SA) is the South Australian Act that protects shipwrecks and related articles lying in the territorial waters of the State - that is, waters within the limits of the State or adjacent to the State and to which the Historic Shipwrecks Act 1976 (Cth) does not apply. The Minister for Sustainability, Environment and Conservation is responsible for the State Act and has similar rights and powers to those given to the Commonwealth Minister under the Commonwealth Act and similar penalties apply. Under this Act, a Register of Historic Shipwrecks is kept by the State Minister.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.