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Introduction (continued)

Jurisdiction - extent of heritage legislation

Legislation is a fundamental part of the organisational framework for heritage conservation in Australia. Generally, there is some form of legislation covering all aspects of heritage in each level of jurisdiction.

Since the 1996 State of the Environment report, the legislative framework for all jurisdictions except the Commonwealth has remained relatively unchanged for natural and Indigenous heritage protection. The Commonwealth passed the Environment Protection and Biodiversity Conservation Act in 1999 and it came into force in July 2000. This Act superseded other legislation regarding the Commonwealth's role in protecting the natural and cultural environment, such as internationally recognised wetlands sites, and in protecting Australia's World Heritage properties. The Australian Heritage Commission Act 1975 currently provides Commonwealth statutory protection to registered heritage places.

The Tasmanian Historic Cultural Heritage Act 1995 legislation came into force during the reporting period. This means that all States and Territories of Australia now have a legislative framework in which to identify, register and conserve their historic heritage places. However, the extent, provisions and application of this legislation varies widely as is shown in Appendix 1. New South Wales heritage legislation was amended significantly in 1999 to introduce a State Heritage Register similar to those in all other States and to expand the scope of the Act to cover Indigenous, natural and movable heritage.

In all States and Territories, places of heritage significance may be protected by a reservation of public land for a particular purpose, such as protection of an historic feature or Indigenous site or flora reserve. Often this power resided in the Lands Department, and the passing of newer heritage legislation has sometimes left split or duplicated responsibilities. Outside this public reserve system, specific heritage, environmental planning or other legislation may make provisions for the protection of identified places or objects of significance.

Appendix 1 outlines the principal legislation in each jurisdiction.

The Commonwealth's National Heritage Places Strategy

One of the significant proposals of the 1996 Council of Australian Governments (COAG) formal review of Commonwealth roles and responsibilities for environmental protection, including heritage matters, is a set of national principles agreed at the 1998 National Heritage Convention (outlined in Appendix 2) and yet-to-be-ratified standards, which underpin the National Heritage Places Strategy. Under the COAG agreement, the Commonwealth began to discuss a focus for its heritage activities on places of national heritage significance through the development of a National List of Heritage Places, and also announced that it will develop a list of heritage places in Commonwealth ownership or control, partially in response to the Schofield Report (1996) into the management of Commonwealth-owned heritage property.

The States, Territories and local governments are responsible for identifying and protecting heritage places of State or local significance respectively. Attempts to achieve the agreement of all jurisdictions on detailed common heritage standards as envisaged by COAG were not successful.

The new Commonwealth heritage legislation - the Environment and Heritage Legislation Amendment Bill (No. 2) 2000, the Australian Heritage Council Bill 2000, and the Australian Heritage Council (Consequential and Transitional Provisions) Bill 2000 - was introduced into the Senate in December 2000. Its principal features are outlined in Appendix 3. If passed, it will address the long-standing and well-known deficiencies in the existing Commonwealth heritage places legislation, which has very limited protective mechanisms and, at most, an alerting role on the heritage values of listed places. The recent report of the Senate Committee's inquiry into the three Bills (Parliament of Australia 2001) is currently being considered by the government.

Heritage places may be listed in the Commonwealth's Register of the National Estate, the major output of the Australian Heritage Commission Act 1975, but powers to protect those places have been very limited. Many places listed in the Register are now covered by State, Territory and local government heritage legislation. For Commonwealth-owned places with heritage values the managing authorities were not required to act on the Commission's advice: only to seek the advice. This was addressed in the Schofield Report, and some of that report's recommendations are contained in the proposed new legislation.

The Commonwealth's new heritage legislation would relate to a much smaller suite of places: those with national heritage significance and those Commonwealth-owned heritage places (compared with approximately 13 000 places currently entered in the Register of the National Estate). This will affect data collection and reporting on the state of heritage as part of the wider environment. Aside from the proposed statutory requirement of the Minister to report on national list and Commonwealth list places every 10 years, there will be a different data collection system, and current indicators for heritage reporting may not be useable or appropriate. This is especially the case where they rely on the Register of the National Estate for data on which to base trend analyses, because the Register would not operate under the new regime. Hopefully there would be better data on Commonwealth places, but clear processes for data collection, maintenance and management regarding nation-wide heritage places are essential for the next State of the Environment reporting period and for assessing progress towards successful heritage outcomes.

In December 1995, the Hon. Elizabeth Evatt AC commenced a comprehensive independent review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The review consulted with Aboriginal and Torres Strait Islander communities, State and Territory governments, business and industry, and received 68 written submissions. The report of the review (the Evatt Report), which was provided to the Commonwealth Government in late 1996, contained a number of recommendations for reform.

There has been no formal response from the Commonwealth Government to the Evatt Report. However, in 1998 the Minister for Aboriginal and Torres Strait Islander Affairs announced an overhaul of the Act, and ATSIC subsequently initiated consultations on the issue of heritage protection. The Evatt report was also the subject of an inquiry by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund ('the Joint Committee') during mid-1997. The resultant Joint Committee's Report, containing numerous recommendations regarding the drafting of Commonwealth heritage protection legislation, was tabled on the same day as the first version of the current Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (2 April 1998). The Joint Committee subsequently issued another report that made various recommendations for amendments to this Bill.

In December 1998 the responsibility for the administration of the Act was transferred from the Aboriginal and Torres Strait Islander Commission to the Department of the Environment and Heritage. Following the 1998 election of the Coalition Government for a second term, an amended version of the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was introduced into Parliament. The Labor Party and the Australian Democrats introduced over 100 amendments to the Bill when it reached the Senate. The majority of the Senate amendments sought to substantially alter the thrust of the Bill and were not accepted by the Government. The Minister for the Environment and Heritage agreed to conduct further consultation with Indigenous people, which has resulted in further amendments yet to be debated in Parliament. It is understood that some of these were recommended in the Evatt Report, and thus strengthen the proposed legislation for the protection of Indigenous heritage.

In the meantime, there remains a lack of minimum national standards for Indigenous heritage legislation.

Implementing environmental indicators for measuring the condition of the natural and cultural heritage

The 2001 State of the Environment Report builds on the seven themes used in the 1996 report - Human Settlements, Biodiversity, Atmosphere, Land, Inland Waters, Coasts and Oceans, (formally called Estuaries and the Sea), and Natural and Cultural Heritage - and is based in part on the use of environmental indicators as a reporting framework.

For this heritage report, indicators which were recommended by a multidisciplinary team (Pearson et al. 1998) were used, and the applicability of these indicators was tested across cultural and natural fields. The indicators were developed with the aim of covering the most significant heritage issues confronting Australians. The recommended indicators are listed in Appendix 4. In the 1996 State of the Environment Report, heritage indicators were not used; instead, 10 areas of interest were described following the condition-pressure-response model.

The 43 indicators recommended in 1998 are arranged in seven groups as follows:

1. general indicators G.1-G.8
2. specific natural heritage indicators N.1-N.3
3. specific Indigenous (archaeological) heritage indicators IA 1.1-IA 4.2
4. specific Indigenous (contemporary) heritage indicators IC.1-IC.6
5. specific Indigenous languages indicators IL.1-IL.9
6. specific historic indicators H.1-H.2
7. specific object indicators O.1-O.7.

This report represents a thorough testing of the indicators and their utility in providing information on the condition of the heritage environment from 1995 to 2000. Indicators are a tool only for the systematic collection of data; where there have been data gaps, observations and opinions about the issues have been sought from published sources or direct contact with those responsible for the places under study.

For the 2001 State of the Environment reporting, the fundamental issue is the condition of heritage places and their associated objects and Indigenous languages. Specific measures have been developed and tested for the condition of places; for example, the survey of the number of historic heritage places assessed (by sampling) as being in (a) good, (b) average, and (c) poor condition. Measurement is a relative exercise, so this report aims to establish baseline data against which to measure change in future reporting periods.

By establishing the condition of heritage places, objects and languages now, it may be possible in future reports to better isolate pressure and response indicators. However these distinctions are often highly artificial. For example, tourist pressure on a heritage resource leads to a deterioration of its condition, and in response new boardwalks are constructed; this response in turn enables greater numbers of tourists to use the resource, which become a pressure again on the condition of the resource, and this may change its heritage associations and meanings for some people. Response might be measured according to institutional, management or community actions, and these will vary in type, degree and extent.

Data has been provided by Environment Australia, the Australian Heritage Commission (especially by the Indigenous Heritage Section), State data coordinators, and two specially commissioned studies - Implementing State of the Environment Indicators for Knowledge and Condition of Heritage Places and Objects by Pearson et al. (2001), and The State of Indigenous Languages in Australia by McConvell and Thieberger (2001).

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