EXPLANATORY STATEMENT
Environment Protection and Biodiversity Conservation Act 1999
Determination under section 324H
(Issued under the Authority of the Minister for the Environment, Heritage and the Arts)
Section 324C of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) requires the Minister to keep a written record of places and their heritage values, called the National Heritage List. Entries in the list may be made of places in the Australian jurisdiction that the Minister is satisfied have outstanding heritage value to the nation.
Section 324H of the Act provides for the Minister to determine one or more heritage themes that the Minister considers should be given priority in relation to an assessment period. Subsection 324H(2) of the Act provides for the Minister to request advice from the Australian Heritage Council (the Council), and have regard to that advice when determining a heritage theme.
The purpose of this determination is to establish “A Free and Fair Australia” as the heritage theme to be given priority for the assessment period commencing 1 July 2009. This theme reflects advice provided to the Minister by the Council, which considered that key messages associated with the theme include:
- Australia is one of the world’s oldest modern democracies.
- Australia has a robust and enduring democratic government with distinctive political and social institutions.
- The development and recognition of a distinctive Australian identity is characterised by the iconic egalitarian concepts of fair go and mateship.
- Australian democracy acknowledges diverse cultural, political and religious perspectives, and past struggles and victories for fairer conditions and equality.
- Australian democracy reflects core beliefs that Australians stand together, are committed to others, and rely on each other in difficult conditions or adversity.
Wider consultation was not undertaken in relation to the determination of this theme as the determination is considered to be of a machinery nature having no impact on private interests.
Subsection 324H(3) of the Act provides that a determination under section 324H(1) of the Act is a legislative instrument, but section 42 of the Legislative Instruments Act 2003, which provides for disallowance by either House of Parliament, does not apply to the determination.
The determination commenced on the day after it was registered on the Federal Register of Legislative Instruments.
Overview
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) was enacted to provide for the protection of the environment and the nation's biodiversity. It addresses the need for a comprehensive approach to environmental protection that includes heritage conservation. The Act requires the Minister to maintain the National Heritage List, which includes places of outstanding heritage value to the nation. In line with this, Section 324H of the Act empowers the Minister to prioritise certain heritage themes for assessment periods, taking advice from the Australian Heritage Council where necessary. The Explanatory Statement outlines a determination made under section 324H to prioritise the heritage theme "A Free and Fair Australia" for the assessment period commencing 1 July 2009. This theme, reflecting advice from the Council, encapsulates key aspects of Australia's democratic heritage, including its historical status as a modern democracy, the robustness of its political and social institutions, and the development of a unique Australian identity. Notably, this determination was made without wider consultation as it is considered to be a matter of administrative nature with no impact on private interests. The determination, registered on the Federal Register of Legislative Instruments, is exempt from disallowance by either House of Parliament.
Scope and Application
The Environment Protection and Biodiversity Conservation Act 1999, through the legislative instrument issued under section 324H, establishes a heritage theme of "A Free and Fair Australia" for the assessment period starting 1 July 2009. This theme, prioritised by the Minister for the Environment, Heritage and the Arts, is aimed at recognising the outstanding heritage value of places in Australia that embody the nation's democratic principles and cultural identity. The Act mandates that the Minister maintains a National Heritage List, where places of national significance are recorded, and this determination guides the assessment process by focusing on heritage that reflects Australia's democratic values and egalitarian concepts such as the fair go and mateship. The selection of this theme, informed by the Australian Heritage Council, underscores the importance of Australia’s democratic history and the diverse perspectives that have shaped its societal fabric. Notably, the determination is legislative in nature, exempt from disallowance under the Legislative Instruments Act 2003, and became effective immediately upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The Environment Protection and Biodiversity Conservation Act 1999 (the Act) includes specific provisions for the protection of places of outstanding heritage value, known as the National Heritage List (Section 324C). These provisions empower the Minister to identify and record sites within Australia that possess significant heritage value to the nation. In accordance with Section 324H, the Minister is also mandated to establish priority heritage themes for a specific assessment period. This legislative instrument is designed to focus and guide the evaluation and protection of heritage sites during the designated timeframe.
Under Section 324H, the Minister has the authority to designate one or more heritage themes that should be prioritised in the context of an assessment period. This decision-making process can be informed by advice from the Australian Heritage Council, as outlined in Subsection 324H(2). This particular determination, which was issued under the authority of the Minister for the Environment, Heritage and the Arts, establishes "A Free and Fair Australia" as the priority heritage theme for the assessment period starting on 1 July 2009. The theme was recommended by the Council and encapsulates key messages that underscore the nation's democratic heritage, cultural diversity, and egalitarian values.
The Act imposes several obligations on the Minister in relation to the National Heritage List and the selection of heritage themes. The Minister must ensure that places of outstanding heritage value are documented and protected (Section 324C). Additionally, the Minister is required to consult with the Australian Heritage Council when determining priority heritage themes (Section 324H(2)). The Minister must also make a determination regarding the heritage themes for each assessment period, which must be registered on the Federal Register of Legislative Instruments to take effect (Section 324H(3)).
Failure to comply with the provisions of the Act may result in civil or criminal consequences, although specific offences and penalties are not detailed in the Act itself. It is worth noting that the determination made under Section 324H is a legislative instrument but is exempt from disallowance by either House of Parliament, as specified in Section 42 of the Legislative Instruments Act 2003. This means that once the determination is registered, it cannot be annulled by Parliament, highlighting the importance of the decision-making process and the advice received from the Australian Heritage Council.