Australian Heritage Council Regulations 2003 2003 No. 353
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 353
Issued by the authority of the Minister for Environment and Heritage
Australian Heritage Council Act 2003
Australian Heritage Council Regulations 2003
Section 25 of the Australian Heritage Council Act 2003 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 21(1) of the Act provides that the Australian Heritage Council (the Council) must keep a register of places and their heritage values, to be called the Register of the National Estate (the Register).
Sections 22 and 23 of the Act specify the persons that the Council must consult or inform when including places in, or removing places from, the Register. Subsection 21(2) of the Act provides that the regulations may specify additional persons the Council must consult or inform about the listing of places in the Register and the content, form of keeping, and inspection, publication and copying requirements for the Register.
The purpose of the Regulations is to prescribe additional specified persons the Council must consult or inform about the or actual inclusion or removal of places or parts of places in the Register; and to specify the content, method of keeping and publication requirements for the Register.
The Regulations provide that the appropriate authority of the State or Territory government and the local government (if any) be informed and given reasonable time to comment on a proposal to include in, or remove from, the Register a place or part of a place. The same bodies are be required to be informed of Council's decision to include in, or remove from, the Register a place or part of a place.
The Regulations also specify that the Register:
• must contain a description of each place entered and the date on which the entry is made;
• may be kept electronically; and
• must be published on the internet with provision made for information about the location of the place not to be disclosed by internet publishing, where such public disclosure could result in the place being damaged.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Act received Royal Assent on 23 September 2003. Those parts of the Act which did not commence on Royal Assent will commence on 1 January 2004.
Section 4 of the Acts Interpretation Act 1901 provides for the exercise of statutory powers between passing and commencement of the Act. Therefore, even though the provisions of the Act which the Regulations would give effect to have not yet commenced, the proposed Regulations may be made as long as they are not expressed to commenced prior to the commencement of the enabling legislation.
The Regulations commence on 1 January 2004.
Overview
The Australian Heritage Council Regulations 2003 were enacted to give effect to the provisions of the Australian Heritage Council Act 2003, which was introduced to address the need for a coordinated and systematic approach to the protection and management of Australia's heritage places. The Act received Royal Assent on 23 September 2003, with certain parts commencing on 1 January 2004. The Regulations were made under Section 25 of the Act, allowing for the specification of matters necessary or convenient for carrying out or giving effect to the Act. The primary objective of the Regulations is to prescribe additional specified persons that the Australian Heritage Council must consult or inform regarding the inclusion or removal of places from the Register of the National Estate, as well as to outline the content, method of keeping, and publication requirements for the Register. The Regulations also mandate that state or territory government authorities and local governments be informed and given reasonable time to comment on proposals to include or remove places from the Register, as well as being informed of the Council's final decisions.
Scope and Application
The Australian Heritage Council Regulations 2003, made under the Australian Heritage Council Act 2003, apply to the Australian Heritage Council and govern the administration of the Register of the National Estate. These Regulations provide for the consultation of additional specified persons, including state or territory government authorities and local governments, when proposing to include or remove places from the Register. The Regulations also mandate the content and format of the Register, specifying that it must include descriptions of each place and the date of entry, and may be maintained electronically. Furthermore, the Register must be made publicly available on the internet, with measures in place to protect the location information of places that could be at risk from public disclosure. The Regulations apply across Australia, and there are no specified exclusions or thresholds. The Regulations came into effect on 1 January 2004, aligning with the commencement of the Act itself.
Key Provisions
The Australian Heritage Council Regulations 2003, made under the Australian Heritage Council Act 2003, establish specific processes and requirements for the management of the Register of the National Estate. According to the Act, the Governor-General has the authority to issue these regulations to prescribe matters required or permitted by the Act (Section 25). One key provision is the requirement for the Australian Heritage Council (the Council) to maintain a register of places and their heritage values, known as the Register of the National Estate (Section 21(1)). The Regulations further detail who must be consulted or informed about changes to the Register, such as the inclusion or removal of places (Sections 22 and 23). They specify that the appropriate State or Territory government authority and local government must be informed and given reasonable time to comment on any proposals to add or remove places from the Register, as well as being informed of the Council’s final decision (Regulation 3).
The obligations imposed by the Regulations on the Council include ensuring that the appropriate State or Territory government authorities and local governments are consulted and informed about proposals to add or remove places from the Register. The Regulations mandate that the Register must include a description of each place entered along with the date of entry, and it must be published on the internet (Regulation 4). There is also flexibility in how the Register can be kept, allowing for electronic storage (Regulation 5). Additionally, if disclosing the location of a place on the internet could cause damage to that place, the Regulations provide that such information can be withheld from the internet publication (Regulation 6).
The Australian Heritage Council Regulations 2003 also outline consequences for non-compliance, although no specific offences, penalties, or civil/criminal consequences are detailed in the Regulations themselves. The primary enforcement mechanism is the requirement to consult and inform relevant authorities as specified. Failure to comply with these obligations could potentially lead to legal challenges regarding the validity of decisions made by the Council about the Register. The Regulations, however, do not explicitly state maximum penalties for non-compliance, suggesting that any enforcement would likely be pursued through the courts under the broader legislative framework provided by the Australian Heritage Council Act 2003.