Untitled document

Heritage (Amendment) Act 2000

Act No. 70/2000

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	New section 32 substituted	2

32. Decision of Executive Director on nomination 2

4.	Statement on recommendation to include in Register	3
5.	Insertion of new section 34A	3

34A.	Statement of recommendation that a place or object
should not be registered 3

6.	Publication of notice of recommendation	4
7.	Substitution of section 36	5

36. Obligations of the owner 5

8.	Submissions	7
9.	Repeal of section 39	7
10.	Procedure of Heritage Council	8
11.	New section 42 substituted	8

42. Decision of Heritage Council 8

12.	Notice of intention to sell registered place or object	10
13.	Liturgical exemptions	10
14.	Matters to be considered in determining applications for permits	11
15.	Delegation	11
16.	Offence to be near historic shipwreck	11
17.	Insertion of new section 118A	12

118A. Permits for the use of historic shipwreck relics 12

18. Insertion of new section 126A 13

126A. Permits for the use of archaeological relics 13

19.	Powers of entry—generally	13
20.	Insertion of new sections 150A to 150D	13

150A.	Search warrant for residence	13
150B.	Announcement before entry of residence on warrant	15
150C.	Copy of warrant to be given to occupier	15
150D.	Powers of inspectors on entry on warrant	16

21.	Power to require production of permit or consent	16
22.	New section 159A inserted	17
159A. Confidentiality	17
23.	New Division 5 inserted in Part 10	17

i

Section Page

Division 5—Transitional Provision arising from Heritage

(Amendment) Act 2000	18
213A. Transitional provision	18

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ENDNOTES 19

ii

Victoria

No. 70 of 2000

Heritage (Amendment) Act 2000†

[Assented to 21 November 2000]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Heritage

Act 1995—

(a)	to make further provision for the heritage registration process;
(b)	to enable the Executive Director to permit the use of certain relics for certain purposes;

Heritage (Amendment) Act 2000

Act No. 70/2000 s. 2

(c) to make further provision for the powers of inspectors to enter registered residential premises;

(d) to provide for other miscellaneous matters.

2. Commencement

(1) Subject to sub-section (2), the provisions of this

Act come into operation on a day or days to be proclaimed.

(2) If a provision referred to in sub-section (1) does not come into operation before 1 August 2001, it comes into operation on that day.

3. New section 32 substituted

For section 32 of the Heritage Act 1995,
substitute—

"32. Decision of Executive Director on

nomination

(1) After considering a nomination and any

further information given under section 28,

the Executive Director may—

(a)	recommend to the Heritage Council that the place or object be included in the Heritage Register and the category or categories in which it should be included; or
(b)	recommend to the Heritage Council that the place or object should not be included in the Heritage Register.

(2) If the Executive Director recommends to the Heritage Council that a place not be included in the Heritage Register, the Executive

Director may refer the nomination to the
relevant planning authority or the Minister
administering the Planning and
Environment Act 1987 for inclusion of the

Heritage (Amendment) Act 2000

s. 4 Act No. 70/2000

place in a planning scheme in accordance
with the objectives set out in section 4(1)(d)

of that Act.".

4. Statement on recommendation to include in Register

(1) In section 34 of the Heritage Act 1995 for sub-

section (1) substitute—
"(1) If the Executive Director recommends to the

Heritage Council that a place or object be included in the Heritage Register, the Executive Director must give a statement in accordance with this section to—

(a) the owner of the place or object; and

(b) the nominator of the place or object; and

(c) the relevant municipal council.".

(2) In section 34(2) of the Heritage Act 1995 for

paragraph (e) substitute—

"(e) advise the owner that the owner may—

(i) recommendation to the Heritage

make a submission on the of 60 days; and

(ii)  request a hearing in relation to that submission; and".

5. Insertion of new section 34A

After section 34 of the Heritage Act 1995 insert—

"34A. Statement of recommendation that a place or object should not be registered

(1) If the Executive Director recommends to the

Heritage Council that a place or object should not be included in the Heritage

Heritage (Amendment) Act 2000

Act No. 70/2000 s. 5

Register, the Executive Director must give a statement in accordance with this section to—

(a) the owner of the place or object; and

(b) the nominator of the place or object; and

(c) the relevant municipal council.

(2) A statement under sub-section (1) must—

(a) be in writing; and

(b)	set out the terms of the recommendation; and
(c)	set out the reasons for the recommendation; and
(d)	set out an assessment of the cultural heritage significance of the place or object; and
(e)	advise the owner or nominator that the Heritage Council will make a decision on the recommendation after a period of 60 days from the date of the notice of that recommendation published

under section 35; and

(f) advise the owner that the owner may—

(i) recommendation to the Heritage

make a submission on the period of 60 days; and

(ii)  request a hearing in relation to that submission; and

(g) advise the owner and the nominator of the provisions of sections 41 and 42.".

6. Publication of notice of recommendation

Heritage (Amendment) Act 2000
Act No. 70/2000

In section 35 of the Heritage Act 1995 for "under section 32(c)" substitute "under section 32(1)".

7. Substitution of section 36

For section 36 of the Heritage Act 1995
substitute—
'36. Obligations of the owner

(1) In this section "Heritage Council decision"

means a decision of the Heritage Council
under section 42.

(2) This section applies to the owner of a place

or object to whom a statement has been
given under section 34 or 34A.

(3) The owner of a place or object must advise the Executive Director of—

(a)	any works that are being carried out in relation to the place or object at the time the statement is given; and
(b)	any application for a planning permit or a building permit or for an amendment to a planning permit that has been made in relation to the place, but not determined at the time the statement is given; and
(c)	any other activities that are being carried out or are proposed to be carried out in relation to the place or object at the time the statement is given.

(4) An advice under sub-section (3) must be

given within 10 days after the statement is

given under section 34 or 34A.

(5) If, before the Heritage Council decision on a

place—

Heritage (Amendment) Act 2000

Act No. 70/2000 s. 7

(a) an application for a planning permit or a building permit or for an amendment to a planning permit in relation to the

place is made; or

(b) a planning permit or building permit or an amendment to a permit in relation to the place is granted—

the owner of the place must advise the or amendment.

(6) An advice under sub-section (5) must be

given within 10 days after the making of the
application or the grant of the permit or
amendment.

(7) If, before the Heritage Council decision on a place or object—

(a)	any activities are carried out in relation to the place or object that could adversely affect the place or object; or
(b)	any activities are proposed to be carried out in relation to the place or object that could adversely affect the place or

object—

the owner of the place or object must advise
the Executive Director of the activity or

proposal.

(8) An advice under sub-section (7) must be

given within 10 days after the owner becomes aware of the activity or the proposal, as the case requires.

(9) If, before the Heritage Council decision on a place or object, a proposal is made to dispose of the whole or any part of the place or

Heritage (Amendment) Act 2000

s. 8 Act No. 70/2000

object, the owner of the place or object must
advise the Executive Director of that

proposal.

(10) An advice under sub-section (9) must be

given at least 10 days before entering into the contract for the disposal of the place or object.

(11) The owner of the place or object who

proposes to dispose of the whole or any part before entering into a contract for that disposal, give a copy of the statement under section 34 or 34A to the person who, under the proposed contract, is to acquire the place or object or part of the place or object.

of the place or object before the Heritage

(12) An advice to the Executive Director under

this section must be in writing.

(13) An owner of a place or object must comply with this section.

Penalty:  in the case of a natural person:
50 penalty units; and
in the case of a body corporate:
100 penalty units.'.

8. Submissions

(1) In section 38(1) of the Heritage Act 1995, for

paragraph (b) substitute—

"(b) a recommendation of the Executive Director

that a nominated place or object should not

be included in the Heritage Register.".

(2) In section 38(2) of the Heritage Act 1995, for

"sub-section (1)(a)" substitute "sub-section (1)".

9. Repeal of section 39

Heritage (Amendment) Act 2000

Act No. 70/2000

Section 39 of the Heritage Act 1995 is repealed.

10. Procedure of Heritage Council

(1) In section 40 of the Heritage Act 1995 for

"section 38(1)(a)" substitute "section 38(1)".

(2) In section 41(1)(b) of the Heritage Act 1995 omit "for registration".

11. New section 42 substituted

For section 42 of the Heritage Act 1995
substitute—
"42. Decision of Heritage Council

(1) After considering a recommendation and any submissions and conducting any hearing into those submissions, the Heritage Council

may—

(a)	in the case of any recommendation, determine that a place or object or part of a place is not of cultural heritage significance and does not warrant inclusion in the Heritage Register; or
(b)	if the recommendation is to include a place or object in the Heritage Register—

(i)  determine that the place or object is of cultural heritage significance and should be included in the

Heritage Register; or

(ii) of cultural heritage significance

determine that part of the place is Heritage Register; or

Heritage (Amendment) Act 2000

s. 11 Act No. 70/2000

(c) if the recommendation is that the place or object should not be included in the Heritage Register—

(i)  if the Heritage Council considers that the place or object may be of cultural heritage significance,

make a provisional determination to include the place or object in the Heritage Register; or
(ii)	that part of the place may be of cultural heritage significance,

if the Heritage Council considers to include that part of the place in the Heritage Register; or

(d) in the case of any recommendation, refuse to register the place and—

(i)	refer the recommendation and submissions to the relevant planning authority for consideration for an amendment to a planning scheme; or
(ii)	appropriate for steps to be taken under the Planning and

determine that it is more other means to protect or conserve the place or object.

(2) If the Heritage Council determines to include a place in the Heritage Register, it may also, with the consent of the owner of the place,

determine to include in the Heritage Register

Heritage (Amendment) Act 2000

Act No. 70/2000 s. 12

additional land of the owner which is

ancillary to that place.

(3) Division 2 and this Division apply to a

determination under sub-section (1)(c) as if it of the place in the Heritage Register.

were a recommendation of the Executive

(4) In determining that a place or object or part of a place should be registered, the Heritage Council may also determine the works and

activities that can be carried out at the place or in relation to the object without the need for a permit under this Act.

(5) If a member of the Heritage Council has

made a submission under section 38(1) in
respect of a recommendation, that member
must not take part in the consideration or
determination of the Heritage Council on

that submission.

(6) The Heritage Council must notify the

Executive Director of any determination
under this section.".

12. Notice of intention to sell registered place or object In section 52(1) of the Heritage Act 1995, for "that place or object" substitute "the whole or any

part of that place or object".

13. Liturgical exemptions

At the end of section 65 of the Heritage Act 1995 insert—

Heritage (Amendment) Act 2000

s. 16 Act No. 70/2000

"(2) A notice under sub-section (1) must be in the prescribed form.".

14.  Matters to be considered in determining applications for permits

In section 73 of the Heritage Act 1995, after sub-

section (1) insert—

"(1A) In determining an application for a permit, the Executive Director may consider—

(a) the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is—

(i)

subject to a heritage requirement scheme; or

(ii)  included in the Heritage Register; and

(b) any other relevant matter.".

15. Delegation

At the end of section 84 of the Heritage Act 1995
insert—
"(2) Despite sub-section (1), a responsible

authority, having first obtained the written consent of the Executive Director, may, by instrument, sub-delegate to an officer of the responsible authority any of the Executive

Director's functions under this Division

which have been delegated to the authority.".

16. Offence to be near historic shipwreck

In section 112 of the Heritage Act 1995 for sub- section (2) substitute—

Heritage (Amendment) Act 2000

Act No. 70/2000

"(2) This section does not apply to—

(a)	a person holding a permit under the Navigation Act 1912 of the Commonwealth; or
(b)	the holder of an access licence or general permit under the Fisheries Act 1995 carrying out an activity under that licence or permit.".

17. Insertion of new section 118A

After section 118 of the Heritage Act 1995 insert—

"118A. Permits for the use of historic shipwreck

relics

(1) This section applies to historic shipwreck

relics in the custody or control of the
Executive Director.

(2) The Executive Director may grant a permit

to any person for the use of an historic
shipwreck relic for the purposes of study,
conservation or exhibition.

(3) The Executive Director may impose any

conditions on the permit that the Executive

Director thinks fit.

(4) A permit under this section remains in force

for the period of time specified in the permit.

(5) An application for a permit must be in the
form approved by the Executive Director.

(6) The applicant must pay the prescribed fee (if any) for a permit.

(7) A person who is the holder of a permit must

comply with the permit.
Penalty: 10 penalty units.".

Heritage (Amendment) Act 2000

s. 18 Act No. 70/2000

18. Insertion of new section 126A

After section 126 of the Heritage Act 1995 insert—

"126A. Permits for the use of archaeological relics

(1) This section applies to archaeological relics

in the custody or control of the Executive
Director.

(2) The Executive Director may grant a permit

to any person for the use of an
archaeological relic for the purposes of
study, conservation or exhibition.

(3) The Executive Director may impose any

conditions on the permit that the Executive

Director thinks fit.

(4) A permit under this section remains in force

for the period of time specified in the permit.

(5) An application for a permit must be in the
form approved by the Executive Director.

(6) The applicant must pay the prescribed fee (if any) for a permit.

(7) A person who is the holder of a permit must

comply with the permit.
Penalty: 10 penalty units.".

19. Powers of entry—generally

In section 150(4)(a) of the Heritage Act 1995 after "photographs" insert "(including video recordings)".

20. Insertion of new sections 150A to 150D

After section 150 of the Heritage Act 1995 insert—

"150A. Search warrant for residence
Heritage (Amendment) Act 2000
Act No. 70/2000

(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to a particular registered place which is a

residence if the inspector believes on
reasonable grounds that there is, or may be
within the next 72 hours, on the place a
particular thing that may be evidence of the
commission of an offence against this Act or

the regulations.

(2) A magistrate may issue a search warrant

under this section if the magistrate is
satisfied by evidence on oath, whether oral
or by affidavit, that there are reasonable
grounds for suspecting that there is, or may
be within the next 72 hours, on a registered
place that is a residence a particular thing
that may be evidence of the commission of

an offence against this Act or the regulations.

(3) The search warrant may authorise an

inspector named in the warrant and any
assistants the inspector considers

necessary—

(a)	to enter the place, or the part of the place, named or described in the warrant; and
(b)	to search for a thing named or described in the warrant.

(4) In addition to any other requirement, a

search warrant issued under this section must

state—

(a) the offence suspected; and
(b) the place to be searched; and

Heritage (Amendment) Act 2000

s. 20 Act No. 70/2000

(c)	a description of the thing for which the search is to be made; and
(d)	any conditions to which the warrant is subject; and
(e)	whether entry is authorised to be made at any time or during stated hours; and
(f)	a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

(5) A search warrant must be issued in

accordance with the Magistrates' Court Act
1989 and in the form prescribed under that

Act.

(6) The rules to be observed with respect to

search warrants mentioned in the apply to warrants under this section.

150B. Announcement before entry of residence on

warrant

(1) Before executing a search warrant, the

inspector named in the warrant or a person
assisting the inspector must announce that he
or she is authorised by the warrant to enter
the place and give any person at the place an

opportunity to allow entry to the place.

(2) The inspector or a person assisting the

inspector need not comply with sub-section
(1) if he or she believes on reasonable
grounds that immediate entry to the place is

required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

150C. Copy of warrant to be given to occupier

Heritage (Amendment) Act 2000

Act No. 70/2000 s. 21

If the occupier or another person who apparently represents the occupier is present at a place when a search warrant is being executed, the inspector must—

(a)	identify himself or herself to that person by producing his or her identity card for inspection by that person; and
(b)	give to that person a copy of the execution copy of the warrant.

150D. Powers of inspectors on entry on warrant

An inspector who exercises a power of entry of a place under section 150A may if the thing searched for is found during the search—

(a)	inspect and take photographs (including video recordings), or make sketches, of the place or the thing; and
(b)	inspect and make copies of, or take extracts from, the thing if it is a document.".

21. Power to require production of permit or consent

(1) In section 151(2) of the Heritage Act 1995 for

"Sub-section (1)(b)" substitute "Subject to sub-

section (2A), sub-section (1)(b)".

(2) After section 151(2) of the Heritage Act 1995

insert—

"(2A) An inspector may, under sub-section (1)(b),

require a person who holds a permit or
consent to leave a place if the person fails to
produce the permit or consent to the
inspector on being requested to do so.".

(3) In section 151(3) of the Heritage Act 1995—

Heritage (Amendment) Act 2000

s. 22 Act No. 70/2000

(a)	in paragraph (a) for "this section" substitute "sub-section (1)"; and
(b)	in paragraph (b) after "furnish" insert "under this section".

22. New section 159A inserted

After section 159 of the Heritage Act 1995 insert—

"159A. Confidentiality

(1) An inspector must not, except to the extent

necessary—

(a)	to carry out functions or to exercise powers under this Act or the regulations; or
(b)	in connection with the administration or enforcement of this Act or the regulations; or
(c)	to give any information the inspector is authorised, permitted or required to give under this Act or any other Act or the regulations under this Act—

give to any other person, whether directly or
indirectly, any information gained in the
exercise of the powers as an inspector.
Penalty: 20 penalty units.

(2) Sub-section (1) does not prevent the giving of information—

(a) for the purpose of any legal proceedings arising out of this Act or the regulations, or of any report of those proceedings; or

(b) with the consent of the Minister.".

23. New Division 5 inserted in Part 10

Heritage (Amendment) Act 2000

Act No. 70/2000

In Part 10 of the Heritage Act 1995 after
Division 4 insert—

"Division 5—Transitional Provision arising from Heritage (Amendment) Act 2000

213A. Transitional provision

This Act as in force immediately before the commencement of section 3 of the Heritage (Amendment) Act 2000, continues to apply in respect of any decision or

recommendation of the Executive Director

made before that commencement.".

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Heritage (Amendment) Act 2000

Endnotes Act No. 70/2000

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 5 October 2000

Legislative Council: 26 October 2000

The long title for the Bill for this Act was "to amend the Heritage Act
1995 and for other purposes."