Natural and Cultural Heritage Theme Report

Australia State of the Environment Report 2001 (Theme Report)
Lead Author: Jane Lennon, Jane Lennon and Associates Pty Ltd, Authors
Published by CSIRO on behalf of the Department of the Environment and Heritage, 2001
ISBN 0 643 06752 3

Appendix 1

Heritage Legislation

Commonwealth Heritage Legislation

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and related Bills

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides protection for Indigenous heritage sites. The Commonwealth Minister can make a declaration protecting significant Indigenous areas or objects from 'threat of injury or desecration' but only after consulting with the relevant State or Territory to determine whether effective protection is available under State or Territory legislation.

The Aboriginal and Torres Strait Islander Heritage Protection Bill was introduced into Parliament in April 1999. Unlike the Act above, the Commonwealth can only make a protective declaration relating to an Indigenous place or object in a State or Territory accredited for Indigenous heritage by the Commonwealth if the Minister considers that the intervention is in the national interest.

Environment Protection and Biodiversity Conservation Act 1999 and related Bills

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the protection of World Heritage properties as a matter of national environmental significance. No action may be taken on a declared World Heritage property without the approval of the Minister for the Environment and Heritage if the action has, will have or is likely to have a significant impact on the World Heritage values of that property. There are several other national environmental significance matters which are provided for under the EPBC Act (Ramsar wetlands, listed threatened species and communities, listed migratory species, Commonwealth marine areas and protection of the environment from nuclear matters).

There are prohibitions in the EPBC Act relating to damaging heritage in Commonwealth reserves.

The definition of 'environment' in the EPBC Act includes the 'social, economic and cultural aspects' of ecosystems, people, communities, natural and physical resources and qualities and characteristics of locations, places and areas. As such, protection measures for the environment, in general, under the EPBC Act are also applicable to heritage.

The Environment and Heritage Legislation Amendment Bill (No.2) 2000 was introduced into Parliament on 7 December 2000. It amends the EPBC Act to provide for the protection of places of national heritage significance and Commonwealth responsibility. These places will be inscribed on a National Heritage List and/or a Commonwealth Heritage List respectively.

The Australian Heritage Council Bill 2000 was introduced into Parliament on 7 December 2000. It provides for the establishment of an expert advisory body which primarily makes assessments requested by the Minister for the Environment and Heritage in relation to listing places on the National Heritage List and the Commonwealth Heritage List.

The Australian Heritage Council (Consequential and Transitional Provisions) Bill 2000 was introduced into Parliament on 7 December 2000. It provides for the repeal of the Australian Heritage Commission Act 1975 and provides for matters of a transitional nature arising from the repeal of that Act and amendments to the EPBC Act.

Australian Heritage Commission Act 1975

The Australian Heritage Commission Act 1975 establishes the Australian Heritage Commission as an independent statutory authority. The Act also prohibits the Commonwealth from undertaking any action which adversely affects a place in the Register of the National Estate unless the Minister or authority responsible for the action is satisfied that there is no prudent or feasible alternative to taking the action. The Act also obliges the Minister or authority, undertaking an action which may affect a place in the Register of the National Estate to a significant extent, to inform the Commission and give it a reasonable opportunity to consider and comment on the action.

Historic Shipwrecks Act 1976

The Historic Shipwrecks Act 1976 provides for the protection of historic wrecks and relics in Commonwealth waters. All wrecks more than 75 years old are protected together with their associated relics. The Minister for the Environment and Heritage can also make a declaration to protect any historically significant wreck or relics which are less than 75 years old.

Wet Tropics of Queensland World Heritage Area Conservation Act 1994

The object of the Wet Tropics of Queensland World Heritage Area Conservation Act 1994 is to give effect to an agreement made between the Commonwealth and Queensland to facilitate the implementation of Australia's World Heritage obligations in the Wet Tropics of Queensland World Heritage Area, including the Minister:

nominating as members of the Wet Tropics Management Authority Board of Directors, or any other advisory committee, one or more Aboriginal representatives who have appropriate knowledge of, and experience in, the protection of cultural and natural heritage, and
causing a copy of an annual report to be laid before each House of the Parliament.

Protection of Movable Cultural Heritage Act 1986

The Protection of Movable Cultural Heritage Act 1986 prohibits the permanent or temporary export of objects important to Australia (for ethnological, archaeological, historical, literary, artistic, scientific or technological reasons) without a permit. Some objects cannot be exported at all. The Act also allows Australia to return protected objects to other nations if they have been illegally imported.

Natural Heritage Trust of Australia Act 1997

Establishes the Natural Heritage Trust of Australia Reserve which provides for the following purposes:

the National Vegetation Initiative;
the Murray-Darling 2001 Project;
the National Land and Water Resources Audit;
the National Reserve System;
the Coasts and Clean Seas Initiative;
environmental protection;
supporting sustainable agriculture;
natural resources management;
a purpose incidental or ancillary to any of the above purposes; and
the making of grants of financial assistance for any of the above purposes.

Acts relating to heritage collections

National Gallery Act 1975

National Library Act 1960

National Museum of Australia Act 1980 (and National Museum of Australia Amendment Bill 2000)

Archives Act 1983

National Maritime Museum Act 1990 (as amended)

State and Territory Legislation

There are many other Acts that also apply to a lesser degree to heritage places and objects that are not listed here.

State or territory	Natural	Indigenous	Historic
ACT	ACT Nature Conservation Act 1980 Parts 3 and 4, provides protection for wildlife and certain plants. Under the Land (Planning and Environment) Act 1991 (ACT) (the Land Act) heritage encompasses natural or manufactured, including Aboriginal, objects and places of heritage significance (s 52). A Heritage Places Register identifies heritage places and its features and specifies requirements for conservation (s 54). The Heritage Council must consider the need to take measures which are prudent and feasible to conserve the heritage significance of each heritage place (s 56).	Under the Land (Planning and Environment) Act 1991 (ACT) (the Land Act) heritage encompasses natural or manufactured, including Aboriginal, objects and places of heritage significance (s 52). A Heritage Places Register identifies heritage places and its features and specifies requirements for conservation (s 54). The Heritage Council must consider the need to take measures which are prudent and feasible to conserve the heritage significance of each heritage place (s 56).	see under Natural.
NSW	Native Vegetation Management Act 1997 National Parks and Wildlife Act 1974 protects Native Wildlife. Threatened species, populations or ecological communities, listed in schedules to the Threatened Species Conservation Act, or critical habitat of an endangered species determined by the Director-General of National Parks & Wildlife Service attract protection processes through the Threatened Species Conservation Act. Processes under the Native Vegetation Conservation Act are required before native vegetation can be cleared. Environmental Planning Instruments (State Environment Protection Policies such as those covering Koalas and wetlands).	Indigenous places on the Register of the National Estate will be protected by National Parks and Wildlife Act 1974 provided that there are physical "relics" present. If no physical "relics" present the Commonwealth would need to ask the State Minister to declare an Aboriginal place [s84] in order for them to have blanket protection.	Heritage Act 1977 gives blanket protection to Non-Aboriginal archaeological relics (including relics underwater such as shipwrecks) under s140. This means that a s140 permit is required before any works that will disturb or destroy relics.Shipwrecks older than 75 years are protected in Commonwealth waters under the Historic Shipwrecks Act 1976.
Northern Territory	Territory Parks and Wildlife Conservation Act 1976 provides general protection for Native Wildlife.	Sites relating to tradition protected by NT Aboriginal Sacred Sites Act 1989 Aboriginal and Maccassan archaeological sites are given blanket protection under the NT Heritage Conservation Act 1991 - Regulation 3 These sites are treated as though there is a permanent interim protection order over them.	Heritage places must be declared under the NT Heritage Conservation Act 1991 to be protected. The declaration process uses the Register of the National Estate criteria and bestows management requirements and incentives.
Queensland	Nature Conservation Act 1992 provides protection for wildlife, threatened species and habitats etc.	All Indigenous sites are protected under Section 33 of Qld. Cultural Records (Landscapes Queensland and Queensland Estate) Act 1987 and ownership of all Indigenous relics usually vest in the Crown (s 56).	Places may be registered under the Queensland Heritage Act 1992. Registration imposes development consent conditions under Part 5. Development in Registered Places. The Queensland Heritage Register developed on the same basis as the Register of the National Estate. Development controls [not maintenance requirements] come into force when a property is placed on the register.
South Australia	National Parks Act 1972 provides protection to Native Wildlife. Native Vegetation Management Act 1991 places constraints upon clearing native vegetation. Natural Heritage places may be included on the State Heritage Register established under the provisions of the Heritage Act 1993. If the State Heritage Authority is of the opinion that a place should be protected while an assessment of its value is carried out, it may provisionally enter a place in the Register.	The SA Aboriginal Heritage Act, 1988 affords protection to any Aboriginal site regardless of whether it is on the register, Ministerial authority is required for development to proceed if sites are threatened. ss 21, 23.	Places of state heritage value are protected under the SA Heritage Act 1993 Places of local heritage value can be protected through a Development Plan under the Development Act 1993 if Councils take action.
Tasmania	The National Parks and Wildlife Act 1970 provides protection for native wildlife, and the Threatened Species Protection Act 1994 provides protection of threatened species.	Aboriginal Relics Act 1975 protects "relics" created before 1876. It is an offence to damage, destroy, interfere with, disturb or conceal without a Ministerial permit. The State Policies and Projects Act 1993 allows development of a State Policy on Aboriginal heritage.	Places may be registered under the Historic Cultural Heritage Act 1995. Application for Development consent to the Heritage Council. This does not appear to cover Aboriginal sites after 1876.
Victoria	Habitats identified as critical to any species of flora or fauna may be protected under the Flora and Fauna Guarantee Act 1988.	All Aboriginal sites are protected under a combination of State and Commonwealth legislation: Victoria Archaeological and Aboriginal Relics Preservation Act 1972 and the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Part 11 A: Victorian Aboriginal Cultural Heritage ('Part 11A'). Blanket protection is provided under s.21U of Part 11A and under ss 21 and 22 of the Relics Preservation Act	The Heritage Act 1995 provides for Registration of items of State significance. Registration means that development consent is required from The Heritage Council. Properties of local significance may be listed on schedules under the Planning and Environment Act 1989 or considered in schemes under the Planning Schemes Act 1996.
Western Australia	Wildlife Conservation Act 1950, provides general protection to native wildlife. Conservation and Land Management Act 1984 controls development.	Under s 17 the WA Aboriginal Heritage Act 1972 it is illegal to destroy, damage, or alter a site [regardless of whether it has been registered] without authorisation in WA. The Act affects archaeological sites and sacred, ritual and ceremonial sites of importance.	Heritage of Western Australia Act 1990, allows for registration of a place of cultural heritage significance. The Council must have regard to information emanating from the Australian Heritage Commission, National Trust, local councils and other sources (ss 43,47 (3)). Entry on the register is noted on the title.