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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Heritage Bill 2017
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Objectives 2
4. Terms used 2
5. Term used: cultural heritage significance 5
6. Term used: owner, in relation to land 6
7. Term used: place 7
8. Act binds Crown 8
9. Places to which Act does not apply 8
10. Other laws not affected 8
Part 2 -- The Council
Division 1 -- Constitution of the Council
11. Council established 9
12. Status 9
13. Execution of documents by Council 9
14. Membership and proceedings 10
15. Co-opted members and role of CEO 12
16. Remuneration and allowances 12
Division 2 -- Functions and powers of Council
17. Functions of the Council 12
18. Powers of Council 14
19. Delegation by Council 15
Division 3 -- Relationship with other public
authorities
20. Public authorities must assist Council 15
47--1 page i
Heritage Bill 2017
Contents
Division 4 -- Relationship between Minister
and Council
21. Administration of this Act 16
22. Minister's directions 16
23. Minister to have access to information 17
24. Delegation by Minister 17
Division 5 -- Staff
25. CEO to provide assistance, staff and facilities 18
26. Use of other government staff and facilities 19
Division 6 -- Finance
27. Financial Management Act 2006 and Auditor
General Act 2006 apply 19
28. Funds of Council 19
29. Heritage Fund 20
30. Borrowing 20
31. Guarantee by Treasurer 21
32. Effect of guarantee 21
33. Notice of financial difficulty 21
34. Exemption from rates 22
Part 3 -- The State Register of
Heritage Places
Division 1 -- The register
35. The register 23
36. Form and content of register 23
Division 2 -- Entry in the register
Subdivision 1 -- Registration conditions
37. Conditions for registration 24
38. Factors relevant to cultural heritage significance 24
Subdivision 2 -- Process for entry into register
39. Nomination for entry in the register 25
40. Review and registration recommendation 26
41. Direction by Minister 27
42. Entry in register 27
Division 3 -- Amendment of register entries
43. Request for amendment of land description in
register entry 28
page ii
Heritage Bill 2017
Contents
44. Detailed consideration of amendment to land
description 29
45. Land description amendment direction by Minister 30
46. Amending land description in register entry 31
47. Other amendments 32
Division 4 -- Removal of entries from register
48. Request for removal 32
49. Detailed consideration of removal 33
50. Removal direction by Minister 34
51. Removing entry from register 35
Division 5 -- Statements of cultural heritage
significance
52. Adoption of statement of cultural heritage
significance 36
53. Updating and amending statements of cultural
heritage significance 36
54. Notification of adoption, update or amendment 37
Part 4 -- Protection orders and
repair orders
Division 1 -- Protection orders
55. Consent order 39
56. Stop work order 39
57. Continuing protection order 40
58. Content of protection order 41
59. Notification of protection order 42
60. Coming into effect of protection order 42
61. Duration of protection order 43
62. Tribunal's powers as to protection order 44
Division 2 -- Repair orders
63. Terms used 45
64. Repair notice 45
65. Repair order 46
66. Notification of repair order 47
67. Standard of works 48
68. Termination of repair order 48
69. Tribunal's powers as to repair order 49
70. Exclusion of liability 49
page iii
Heritage Bill 2017
Contents
Part 5 -- Proposals affecting places
of heritage interest
Division 1 -- Preliminary
71. Terms used 50
Division 2 -- Referral of proposals
Subdivision 1 -- Proposals that must be referred
72. Proposals to which Subdivision applies 50
73. Referral of certain proposals to Council 51
74. Advice on referred proposal 52
75. Decision on referred proposal 53
76. Effect on certain proposals and decisions when
place becomes registered place 54
Subdivision 2 -- Proposals that are not required to
be referred
77. Decision on certain unreferred proposals 55
Subdivision 3 -- General
78. Regulations 55
Division 3 -- Proposed works for which there is
no decision-maker
79. Permit for works affecting registered place 56
80. Tribunal's powers as to works permit 57
Part 6 -- Support for conservation
Division 1 -- Valuation of land
81. Land to which this Division applies 58
82. Valuation of land 58
83. Request for interim valuation 58
Division 2 -- Conservation assistance
84. Provision of financial, technical and professional
assistance 59
Division 3 -- Modification of planning
instruments
85. Terms used 60
86. Council may recommend modification order 60
87. Minister may modify planning instruments 61
88. Powers of the Tribunal in relation to modification
order 63
page iv
Heritage Bill 2017
Contents
Part 7 -- Heritage agreements
89. Terms used 64
90. Heritage agreements 64
91. Land to which a heritage agreement may relate 65
92. Form and content of heritage agreement 66
93. Implied and model provisions for heritage
agreements 67
94. Termination or variation of heritage agreement 69
95. Evidential status of certified agreement 69
96. Record of heritage agreements 70
97. Notification to Registrar 70
98. Notification to Mining CEO 71
99. Notification to Valuer-General 72
100. Enforcement of heritage agreement by Council or
public authority 72
101. Powers of the Tribunal in relation to heritage
agreement 73
Part 8 -- Local heritage surveys
102. Term used: local heritage survey 75
103. Local heritage survey 75
104. Purposes of local heritage survey 75
105. Guidelines for local heritage surveys 76
Part 9 -- State government heritage
106. Terms used 77
107. Guidelines about State government heritage 77
108. Disposal of heritage assets 78
Part 10 -- Acquisition and
compensation
109. Compulsory acquisition 79
110. Compensation for compulsory acquisition 80
111. Tribunal's powers as to acquisition and
compensation decision 81
112. Acquisition by consent 81
113. Request for acquisition 82
page v
Heritage Bill 2017
Contents
Part 11 -- Enforcement
Division 1 -- Inspectors
114. Appointment of inspectors 83
115. Police officers to have functions of inspectors 83
116. Identity cards 84
Division 2 -- Entry and investigation
117. Term used: investigation purposes 84
118. Entry for investigation purposes 84
119. General powers for investigation purposes 85
120. Use of assistance 86
121. Application for entry warrant 86
122. Issue of entry warrant 86
123. Duration of entry warrant 87
124. Effect of entry warrant 87
125. Execution of entry warrant 87
126. Powers to obtain information 88
127. Obstructing performance of functions 89
128. Impersonation 89
Division 3 -- Offences
129. Damaging registered place 89
130. Contravention of protection order 91
131. Onus of proof in demolition offences 91
132. Contravention of repair order 92
Division 4 -- Orders following offences
133. Restoration order 92
134. Prohibition order 93
Division 5 -- Miscellaneous provisions
regarding offences
135. Time limit for commencing criminal proceeding 95
136. Council or authorised person may commence
prosecution 95
137. Compensation order 96
138. Finding of fact in certain proceedings to be
evidence in other proceedings 96
139. Enforcement of requirement to pay money 97
140. Continuing offence 97
141. Requirement to mitigate damage 97
142. Liability of successors in title 98
143. Liability of officers for offences by body corporate 98
page vi
Heritage Bill 2017
Contents
144. Further provisions relating to liability of officer of
body corporate 99
145. Liability of principals for offence by agent 100
146. Liability of employers for offence by employee 100
147. Agency or employment no defence 101
148. Defences 102
149. Offence that is also breach of heritage agreement 102
Division 6 -- Miscellaneous provisions
regarding civil proceedings
150. Action for damages 103
151. Securing compliance with Act 103
Part 12 -- Compensation in relation
to work prohibition
152. Terms used 105
153. Application for compensation 105
154. Recommendation by Minister for compensation 106
155. Treasurer's determination if no recommendation
by Minister 108
156. Restriction on claim for compensation 108
Part 13 -- Miscellaneous
157. No private cause of action 109
158. Limited effect of processes under the Act 109
159. Confidentiality 110
160. Challenge to entry in register 110
161. Protection from personal liability 110
162. Fees and charges for recovery of costs by Council 111
163. Notices and statutory notification 111
164. Regulations 112
165. Review of Act 113
Part 14 -- Repeal, savings and
transitional provisions
Division 1 -- Repeal
166. Heritage of Western Australia Act 1990 repealed 114
Division 2 -- Savings and transitional
provisions
167. Terms used 114
page vii
Heritage Bill 2017
Contents
168. Interpretation Act 1984 not affected 115
169. Council a continuation of former Council 115
170. Members of former Council continue in office 115
171. Unfinished proceedings: Council 116
172. Completion of things commenced 116
173. Continuing effect of things done 116
174. First annual report of Council 116
175. Heritage Fund a continuation of former Heritage
Account 117
176. Heritage Conservation Incentive Account closed 117
177. Register 117
178. Interim registration 117
179. Conservation orders 118
180. Heritage agreements 119
181. Local heritage survey 119
182. Powers in relation to transitional matters 119
Part 15 -- Amendments to other Acts
183. Building Act 2011 amended 121
184. Constitution Acts Amendment Act 1899 amended 121
185. Liquor Control Act 1988 amended 122
186. Planning and Development Act 2005 amended 122
163. Application for development of heritage
place 125
187. Strata Titles Act 1985 amended 126
188. Swan Valley Planning Act 1995 amended 127
Defined terms
page viii
Western Australia
LEGISLATIVE ASSEMBLY
Heritage Bill 2017
A Bill for
An Act to --
• recognise the importance of, and promote understanding and
appreciation of, Western Australia's cultural heritage; and
• provide for the identification and documentation of places of
cultural heritage significance and for the conservation, use,
development and adaptation of such places; and
• repeal the Heritage of Western Australia Act 1990; and
• make consequential amendments to various other Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Heritage Bill 2017
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Heritage Act 2017.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 (other than sections 3 to 10) -- on the day on
7 which this Act receives the Royal Assent;
8 (b) the rest of the Act -- on a day fixed by proclamation,
9 and different days may be fixed for different provisions.
10 3. Objectives
11 The objectives of this Act are, with due regard for the rights of
12 property ownership --
13 (a) to promote understanding and appreciation of Western
14 Australia's cultural heritage; and
15 (b) to recognise the importance of places of cultural heritage
16 significance and their stories in understanding the course
17 of Western Australia's history; and
18 (c) to provide for the identification and documentation of
19 Western Australia's places of cultural heritage
20 significance; and
21 (d) to encourage and facilitate the conservation, continuing
22 use, development and adaptive reuse of places of
23 cultural heritage significance in ways that represent high
24 standards of heritage conservation and are in harmony
25 with cultural heritage values.
26 4. Terms used
27 In this Act, unless the contrary intention appears --
28 CEO means the chief executive officer of the Department;
page 2
Heritage Bill 2017
Preliminary Part 1
s. 4
1 chairperson means the person appointed under section 14(1) as
2 chairperson of the Council;
3 consent order has the meaning given in section 55;
4 conservation, in relation to a place of cultural heritage
5 significance, means the conservation of the place so as to retain
6 its cultural heritage significance, including --
7 (a) maintenance, preservation, restoration, reconstruction,
8 adaptation and interpretation of the place; and
9 (b) retention of the associations and meanings of the place;
10 and
11 (c) retention or reintroduction of a use of the place;
12 continuing protection order has the meaning given in
13 section 57(1);
14 Council means the body established by section 11(1);
15 Crown land has the meaning given in Land Administration
16 Act 1997 section 3(1);
17 cultural heritage significance has the meaning given in
18 section 5(1);
19 Department means the department of the Public Service
20 principally assisting the Minister in the administration of this
21 Act;
22 development, in relation to land, has the meaning given in the
23 Planning and Development Act 2005 section 4(1);
24 development approval means --
25 (a) approval under the Planning and Development Act 2005
26 for the development of any land; or
27 (b) approval, authorisation, consent or permission under any
28 other written law to do anything that would or might
29 significantly affect the physical character of any land;
30 heritage agreement means an agreement in operation under
31 Part 7;
page 3
Heritage Bill 2017
Part 1 Preliminary
s. 4
1 inspector means a person appointed under section 114(1) to be
2 an inspector.
3 land description, in relation to a place, means a description
4 sufficient to identify the location and boundaries of the land
5 included in the place by reference to --
6 (a) a certificate of title created for the purposes of the
7 Transfer of Land Act 1893; or
8 (b) particulars of any lot, plan, diagram or survey set out in
9 such a certificate; or
10 (c) in relation to land that is not under the operation of the
11 Transfer of Land Act 1893 --
12 (i) particulars set out in any muniments of title; or
13 (ii) other particulars sufficient to identify the
14 location and boundaries of the land included in
15 the place;
16 local planning scheme has the meaning given in Planning and
17 Development Act 2005 section 4(1);
18 Minister for Lands means the Minister as defined in the Land
19 Administration Act 1997 section 3(1);
20 occupier, in relation to land, means a person by whom or on
21 whose behalf the land is lawfully occupied or, if there is no
22 person in lawful occupation, a person entitled to possession of
23 the land;
24 owner, in relation to land, has the meaning given in section 6;
25 owner, in relation to a place, means an owner of any land that is
26 included in the place;
27 place has the meaning given in section 7(1);
28 prescribed means prescribed by the regulations;
29 protection order means --
30 (a) a consent order; or
31 (b) a continuing protection order; or
32 (c) a stop work order;
page 4
Heritage Bill 2017
Preliminary Part 1
s. 5
1 public authority means any of the following --
2 (a) a Minister of the Crown;
3 (b) an agency or an organisation as those terms are defined
4 in the Public Sector Management Act 1994 section 3(1);
5 (c) a local government or regional local government;
6 (d) a body or instrumentality, whether incorporated or not,
7 or the holder of an office, that is established or
8 continued for a public purpose under a written law and
9 that, under the authority of a written law, performs a
10 statutory function on behalf of the State;
11 register means the State Register of Heritage Places established
12 and maintained under section 35(1);
13 registered land means land that is included in a registered place;
14 registered place means a place in relation to which there is an
15 entry in the register;
16 repair order has the meaning given in section 65(1);
17 staff, in relation to the Council, includes --
18 (a) staff of the Department provided to the Council under
19 section 25; and
20 (b) officers and employees of which the Council makes use
21 under section 26(1);
22 statutory notification means a notification given by the Council
23 in accordance with section 163(3);
24 stop work order has the meaning given in section 56(1);
25 Tribunal means the State Administrative Tribunal.
26 5. Term used: cultural heritage significance
27 (1) In this Act --
28 cultural heritage significance means aesthetic, historic,
29 scientific, social or spiritual value for individuals or groups
30 within Western Australia.
page 5
Heritage Bill 2017
Part 1 Preliminary
s. 6
1 (2) Cultural heritage significance may be embodied in a place itself
2 and in any of its fabric, setting, use, associations, meanings,
3 records, related places and related objects.
4 (3) A place may have diverse values for different individuals or
5 groups.
6 6. Term used: owner, in relation to land
7 In this Act --
8 owner, in relation to land, means --
9 (a) if the land is Crown land in a managed reserve as
10 defined in the Land Administration Act 1997
11 section 3(1), the management body of that reserve; and
12 (b) if the land is Crown land vested in a person under a
13 written law other than the Land Administration
14 Act 1997, that person; and
15 (c) if the land is Crown land that is a road, whichever of the
16 following has the care, control and management of the
17 road under a written law --
18 (i) the local government in whose district the road is
19 situated;
20 (ii) the Commissioner of Main Roads;
21 (iii) the Minister to whom the administration of the
22 Public Works Act 1902 is committed;
23 and
24 (d) if the land is Crown land not mentioned in
25 paragraph (a), (b) or (c) that is subject to a lease, the
26 Minister for Lands and the lessee under the lease; and
27 (e) in relation to any other Crown land, the Minister for
28 Lands; and
29 (f) in relation to land that is not Crown land --
30 (i) if the land is subject to the Transfer of Land
31 Act 1893 or the Land Administration Act 1997, a
page 6
Heritage Bill 2017
Preliminary Part 1
s. 7
1 proprietor within the meaning of the Transfer of
2 Land Act 1893; and
3 (ii) if the land is subject to the Registration of Deeds
4 Act 1856, the holder of an estate or interest
5 registered by memorial under that Act; and
6 (iii) a mortgagee or encumbrancee in possession of
7 the land;
8 and
9 (g) in any case, a person who is the holder of, or has made
10 application for, a mining tenement under the Mining
11 Act 1978 in respect of the land or a permit or licence
12 under the Petroleum and Geothermal Energy Resources
13 Act 1967 in respect of the land.
14 7. Term used: place
15 (1) In this Act --
16 place means a defined or readily identifiable area of land and
17 may include any of the following things that are in, on or over
18 the land --
19 (a) archaeological remains;
20 (b) buildings, structures, other built forms, and their
21 surrounds;
22 (c) equipment, furniture, fittings and other objects (whether
23 fixed or not) that are historically or physically associated
24 or connected with the land;
25 (d) gardens and man-made parks or sites;
26 (e) a tree or group of trees (whether planted or naturally
27 occurring) in, or adjacent to, a man-made setting.
28 (2) For the purposes of the definition of place in subsection (1) --
29 (a) the area of land may include any number of contiguous
30 or non-contiguous parts; and
31 (b) the area of land may be included in any number of lots,
32 in separate titles and in different ownerships; and
page 7
Heritage Bill 2017
Part 1 Preliminary
s. 8
1 (c) the area of land includes as much of the land beneath the
2 surface as is required for the purposes of conservation;
3 and
4 (d) it is immaterial that water covers the area of land at any
5 particular time or at all times.
6 8. Act binds Crown
7 This Act binds the Crown in right of Western Australia and, so
8 far as the legislative power of the Parliament permits, the Crown
9 in all its other capacities.
10 9. Places to which Act does not apply
11 This Act does not apply to a place --
12 (a) that comprises only the natural environment; or
13 (b) that has cultural heritage significance solely on account
14 of its connection with Aboriginal tradition or culture.
15 10. Other laws not affected
16 Nothing in this Act affects the operation of --
17 (a) the Aboriginal Heritage Act 1972; or
18 (b) the Conservation and Land Management Act 1984; or
19 (c) the Environmental Protection Act 1986; or
20 (d) the Maritime Archaeology Act 1973.
page 8
Heritage Bill 2017
The Council Part 2
Constitution of the Council Division 1
s. 11
1 Part 2 -- The Council
2 Division 1 -- Constitution of the Council
3 11. Council established
4 (1) A body called the Heritage Council of Western Australia is
5 established.
6 (2) The Council is a body corporate with perpetual succession.
7 (3) A proceeding may be taken by or against the Council in its
8 corporate name.
9 12. Status
10 (1) The Council is an agent of the State and has the status,
11 immunities and privileges of the State.
12 (2) The Council is the State's expert body on matters concerning
13 places of cultural heritage significance, other than places --
14 (a) that comprise only the natural environment; or
15 (b) that have cultural heritage significance solely on account
16 of their connection with Aboriginal tradition or culture.
17 13. Execution of documents by Council
18 (1) The Council must have a common seal.
19 (2) A document is duly executed by the Council if --
20 (a) the common seal of the Council is affixed to it in
21 accordance with subsections (3) and (4); or
22 (b) it is signed on behalf of the Council by a person or
23 persons authorised to do so under subsection (5).
24 (3) The common seal of the Council must not be affixed to a
25 document except as authorised by the Council.
page 9
Heritage Bill 2017
Part 2 The Council
Division 1 Constitution of the Council
s. 14
1 (4) The common seal of the Council must be affixed to a document
2 in the presence of 2 members of the Council each of whom must
3 sign the document to attest that the common seal was so affixed.
4 (5) The Council may, by writing under its common seal, authorise
5 any of the following persons to sign documents on behalf of the
6 Council, either generally or subject to the conditions that are
7 specified in the authorisation --
8 (a) a member or members of the Council;
9 (b) a staff member or members.
10 (6) A document purporting to be executed in accordance with this
11 section is presumed to be duly executed unless the contrary is
12 shown.
13 (7) When a document is produced bearing a seal purporting to be
14 the common seal of the Council, it is presumed that the seal is
15 the common seal of the Council unless the contrary is shown.
16 14. Membership and proceedings
17 (1) The Council consists of up to 9 persons appointed to be
18 members by the Governor on the nomination of the Minister.
19 (2) The Minister must nominate for appointment as chairperson of
20 the Council under subsection (1) a person who in the opinion of
21 the Minister has demonstrated knowledge, experience, skills or
22 qualifications relevant to the position of chairperson.
23 (3) With a view to maintaining a balanced membership reflecting
24 the functions of the Council, the Minister must nominate for
25 appointment as ordinary members of the Council under
26 subsection (1) up to 8 persons who in the opinion of the
27 Minister have --
28 (a) demonstrated knowledge of or experience in heritage
29 matters; and
page 10
Heritage Bill 2017
The Council Part 2
Constitution of the Council Division 1
s. 14
1 (b) demonstrated knowledge, experience, skills or
2 qualifications in one or more of the following fields --
3 (i) archaeology;
4 (ii) architecture;
5 (iii) construction;
6 (iv) engineering;
7 (v) governance;
8 (vi) heritage conservation or interpretation;
9 (vii) history;
10 (viii) landscape architecture;
11 (ix) local government;
12 (x) property ownership, development or marketing;
13 (xi) urban and regional planning;
14 (xii) any other field prescribed for the purposes of this
15 subsection.
16 (4) Regulations may provide for the following --
17 (a) the publication of advertisements seeking candidates for
18 nomination to membership of the Council;
19 (b) the term of office, resignation and removal of members;
20 (c) the appointment of alternate members to deputise for
21 members who are temporarily unable or unavailable to
22 act;
23 (d) the disclosure, recording and management of members'
24 conflicts of interest;
25 (e) the convening and conduct of meetings of the Council;
26 (f) the establishment, membership and proceedings of
27 committees of the Council;
28 (g) other proceedings of the Council.
page 11
Heritage Bill 2017
Part 2 The Council
Division 2 Functions and powers of Council
s. 15
1 15. Co-opted members and role of CEO
2 (1) The Council may appoint any person having relevant
3 specialised knowledge or experience to be a co-opted member
4 of the Council for a period, or in relation to matters, specified in
5 the instrument of appointment.
6 (2) A person appointed under subsection (1) or a nominee of that
7 person --
8 (a) may, for the period or in relation to the matters in
9 respect of which the person is appointed, take part in the
10 deliberations of the Council but cannot vote on a matter
11 unless authorised to do so under the regulations; and
12 (b) otherwise, has all the functions and entitlements of a
13 member for that period or in relation to those matters.
14 (3) The CEO, or a nominee of the CEO, is entitled to attend any
15 meeting of the Council and to take part in the consideration and
16 discussion of any matter before a meeting other than a matter
17 concerning the performance of the CEO, but cannot vote on any
18 matter.
19 16. Remuneration and allowances
20 The members of the Council, or of a committee of the Council
21 established under section 14(4)(f), are entitled to be paid out of
22 the funds of the Council any remuneration and allowances
23 determined by the Minister on the recommendation of the
24 Public Sector Commissioner.
25 Division 2 -- Functions and powers of Council
26 17. Functions of the Council
27 The Council has the following functions --
28 (a) to assess and to document places of cultural heritage
29 significance in Western Australia;
30 (b) to advise the Minister on heritage matters and, in
31 particular, on the identification, conservation and
page 12
Heritage Bill 2017
The Council Part 2
Functions and powers of Council Division 2
s. 17
1 protection of places that are, or may be, of cultural
2 heritage significance;
3 (c) to provide guidance to public authorities on
4 contemporary best practice for the identification and
5 management of heritage assets;
6 (d) to administer the register;
7 (e) in accordance with Part 6, to provide or facilitate the
8 provision of financial, technical and professional
9 assistance and other conservation incentives;
10 (f) if development or other proposals may affect a
11 registered place, to provide advice to decision-making
12 authorities on ensuring that the place's cultural heritage
13 significance is preserved;
14 (g) to endeavour to prevent the destruction, damage,
15 deterioration or injudicious treatment of places that are,
16 or may be, of cultural heritage significance;
17 (h) to undertake or provide for the conservation of places
18 that are, or may be, of cultural heritage significance;
19 (i) to acquire, own, conserve, arrange for the conservation
20 of, lease, manage and dispose of places that are, or may
21 be, of cultural heritage significance;
22 (j) to advise and assist local governments in identifying and
23 conserving places that are, or may be, of cultural
24 heritage significance;
25 (k) to promote public awareness and knowledge in relation
26 to Western Australia's cultural heritage;
27 (l) to provide and to encourage education and training in
28 relation to Western Australia's cultural heritage;
29 (m) to arrange and to conduct research and investigations in
30 relation to Western Australia's cultural heritage;
31 (n) to promote and assist in the management and
32 maintenance of registered places;
page 13
Heritage Bill 2017
Part 2 The Council
Division 2 Functions and powers of Council
s. 18
1 (o) to enter into agreements under section 90(1) and
2 implement those agreements when in operation;
3 (p) to advise and assist the Minister and others in relation to
4 heritage agreements;
5 (q) to perform any other functions required of it by the
6 Minister under, or in furtherance of the objectives of,
7 this Act;
8 (r) to do anything else that it is required or authorised to do
9 under this Act or any other written law.
10 18. Powers of Council
11 (1) The Council has all the powers it needs to perform its functions.
12 (2) Without limiting subsection (1), the Council may for the
13 purpose of performing a function --
14 (a) acquire, hold, manage and dispose of real and personal
15 property; and
16 (b) grant a lease or licence in respect of property that is
17 owned by the Council; and
18 (c) carry out, or cause to be carried out, the conservation
19 and development of a place; and
20 (d) enter into arrangements for sponsorship; and
21 (e) use its expertise and resources to provide consultancy,
22 management, advisory or other services for profit or
23 otherwise.
24 (3) The Council may, in accordance with the regulations --
25 (a) impose and recover fees and charges in connection with
26 the performance of its functions; and
27 (b) recover prescribed costs and expenses arising from the
28 performance of its functions.
page 14
Heritage Bill 2017
The Council Part 2
Relationship with other public authorities Division 3
s. 19
1 19. Delegation by Council
2 (1) The Council may, by resolution of which notice has been
3 published in the Gazette under subsection (2), delegate to a
4 person any function of the Council under another provision of
5 this Act, or under any other written law.
6 (2) A notice of a delegation under this section published in the
7 Gazette must set out the identity of the delegate and the scope of
8 the delegation.
9 (3) A person to whom a function is delegated under this section
10 cannot delegate that function.
11 (4) The delegate must perform or discharge functions delegated
12 under this section in accordance with the terms of the
13 delegation.
14 (5) A person performing a function that has been delegated to the
15 person under this section is taken to do so in accordance with
16 the terms of the delegation unless the contrary is shown.
17 (6) Nothing in this section limits the ability of the Council to
18 perform a function through an officer or agent.
19 Division 3 -- Relationship with other public authorities
20 20. Public authorities must assist Council
21 (1) A public authority must, and by this section is authorised to,
22 give the Council prescribed assistance in carrying out the
23 functions of the Council if it is reasonably practicable for the
24 public authority to give the assistance.
25 (2) A public authority must comply with any reasonable request for
26 information made by the Council.
27 (3) Nothing in subsection (1) or (2) exempts the Council from the
28 payment of fees or charges payable under any Act.
29 (4) If the Council is of the opinion that a public authority has not
30 complied with subsection (1) or (2) the Council may request the
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Heritage Bill 2017
Part 2 The Council
Division 4 Relationship between Minister and Council
s. 21
1 Minister to notify in writing the Minister responsible for the
2 administration of the public authority.
3 (5) A Minister notified under subsection (4) may direct the public
4 authority to provide the assistance or information to the
5 Council.
6 (6) A direction under subsection (5) may require the public
7 authority to make the services of any person employed or
8 engaged by the public authority available to provide the
9 assistance or information.
10 Division 4 -- Relationship between Minister and Council
11 21. Administration of this Act
12 It is a function of the Council to advise the Minister on the
13 administration of this Act.
14 22. Minister's directions
15 (1) The Minister may give the Council written directions of a
16 general character with respect to its functions.
17 (2) Except as provided in subsection (3), the Council must comply
18 with a direction given under subsection (1).
19 (3) The Council is not required to comply with a direction given
20 under subsection (1) with respect to its functions of --
21 (a) evaluating the cultural heritage significance of a place;
22 and
23 (b) giving advice to the Minister or to a decision-making
24 authority with respect to a place.
25 (4) The text of a direction given under subsection (1) must be
26 included in the annual report submitted by the accountable
27 authority of the Council under the Financial Management
28 Act 2006 Part 5.
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Heritage Bill 2017
The Council Part 2
Relationship between Minister and Council Division 4
s. 23
1 23. Minister to have access to information
2 (1) In this section --
3 document includes any tape, disk or other device or medium on
4 which information is recorded or stored;
5 information means information specified, or of a description
6 specified, by the Minister that relates to the functions of the
7 Council.
8 (2) The Minister is entitled --
9 (a) to have information in the possession of the Council;
10 and
11 (b) if the information is in or on a document, to have access
12 to, and to make and retain copies of, that document.
13 (3) For the purposes of subsection (2) the Minister may --
14 (a) request the Council to provide information to the
15 Minister; and
16 (b) request the Council to give the Minister access to
17 information; and
18 (c) for the purposes of paragraphs (a) and (b) make use of
19 the staff of the Council to obtain the information and
20 provide it to the Minister.
21 (4) The Council must comply with requests under subsection (3)(a)
22 and (b) and make its staff and facilities available to the Minister
23 for the purposes of subsection (3)(c).
24 24. Delegation by Minister
25 (1) The Minister may, by instrument in writing of which notice has
26 been published in the Gazette under subsection (2), delegate to a
27 person any function of the Minister under another provision of
28 this Act other than --
29 (a) this power of delegation; and
30 (b) functions under sections 14, 22 and 23; and
31 (c) functions under Part 3; and
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Heritage Bill 2017
Part 2 The Council
Division 5 Staff
s. 25
1 (d) functions under Part 4; and
2 (e) functions under Part 6 Division 3; and
3 (f) functions under Part 7; and
4 (g) functions under Part 10.
5 (2) A notice of a delegation under this section published in the
6 Gazette must set out the identity of the delegate and the scope of
7 the delegation.
8 (3) A person to whom a function is delegated under this section
9 cannot delegate that function.
10 (4) The delegate must perform or discharge functions delegated
11 under this section in accordance with the terms of the
12 delegation.
13 (5) A person performing a function that has been delegated to the
14 person under this section is taken to do so in accordance with
15 the terms of the delegation unless the contrary is shown.
16 (6) Nothing in this section limits the ability of the Minister to
17 perform a function through an officer or agent.
18 Division 5 -- Staff
19 25. CEO to provide assistance, staff and facilities
20 (1) The CEO must provide the Council with any staff and facilities
21 of the Department, and any other assistance, the Council may
22 reasonably require to perform its functions.
23 (2) The CEO may engage persons as wages staff for the purposes of
24 this Act.
25 (3) Subject to any relevant award or industrial agreement, the terms
26 and conditions of engagement under subsection (2) are to be the
27 terms and conditions that the CEO, with the approval of the
28 Public Sector Commissioner, determines.
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Heritage Bill 2017
The Council Part 2
Finance Division 6
s. 26
1 (4) A person engaged under subsection (2) is not a person
2 appointed under the Public Sector Management Act 1994 Part 3.
3 (5) This section does not affect the power that the Public Sector
4 Management Act 1994 section 100 gives the CEO to engage a
5 person under a contract for services or appoint a person on a
6 casual employment basis for the purposes of this Act.
7 26. Use of other government staff and facilities
8 (1) The Council may by arrangement with the relevant employing
9 authority make use, either full-time or part-time, of the services
10 of any officer or employee --
11 (a) in the Public Service; or
12 (b) in a State agency; or
13 (c) otherwise in the service of the State.
14 (2) The Council may, by arrangement with the employing authority
15 of a department of the Public Service or a State agency, make
16 use of any facilities of the department or agency.
17 (3) An arrangement under subsection (1) or (2) must be made on
18 terms agreed to by the parties.
19 Division 6 -- Finance
20 27. Financial Management Act 2006 and Auditor General
21 Act 2006 apply
22 The provisions of the Financial Management Act 2006 and the
23 Auditor General Act 2006 regulating the financial
24 administration, audit and reporting of statutory authorities apply
25 to and in respect of the Council and its operations.
26 28. Funds of Council
27 The funds available to the Council for the purposes of this Act
28 are --
29 (a) money appropriated by Parliament; and
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Heritage Bill 2017
Part 2 The Council
Division 6 Finance
s. 29
1 (b) money received by the Council in the performance of its
2 functions; and
3 (c) money borrowed by the Council under section 30; and
4 (d) other money lawfully received by, made available to, or
5 payable to, the Council.
6 29. Heritage Fund
7 (1) An account called the Heritage Fund is established as an agency
8 special purpose account under the Financial Management
9 Act 2006 section 16.
10 (2) The funds mentioned in section 28 must be credited to the
11 Heritage Fund.
12 (3) Moneys standing to the credit of the Heritage Fund may be
13 applied in payment of --
14 (a) the remuneration and allowances payable under
15 section 16; and
16 (b) interest on, other fees and charges in respect of, and
17 repayment of moneys borrowed by, the Council under
18 section 30; and
19 (c) costs and expenses lawfully incurred by the Council in
20 the performance of its functions.
21 30. Borrowing
22 (1) The Council may with the prior approval in writing of the
23 Treasurer and on terms and conditions approved by the
24 Treasurer, borrow moneys for the purpose of performing its
25 functions.
26 (2) Any moneys borrowed by the Council under subsection (1) may
27 be raised --
28 (a) as one loan or as several loans; and
29 (b) in any manner the Treasurer approves.
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Heritage Bill 2017
The Council Part 2
Finance Division 6
s. 31
1 31. Guarantee by Treasurer
2 (1) The Treasurer may, in the name and on behalf of the State,
3 guarantee the payment of any moneys payable by the Council in
4 respect of moneys borrowed by it under section 30.
5 (2) A guarantee must be in a form, and contain terms and
6 conditions, determined by the Treasurer.
7 (3) Before a guarantee is given, the Council must --
8 (a) give the Treasurer any security the Treasurer requires;
9 and
10 (b) execute all instruments that are necessary for the
11 purpose.
12 (4) The Treasurer may fix charges to be paid by the Council to the
13 credit of the Consolidated Account in respect of a guarantee
14 given under this section.
15 32. Effect of guarantee
16 (1) The due payment of moneys under a guarantee given under
17 section 31 must be --
18 (a) made by the Treasurer; and
19 (b) charged to, and paid out of, the Consolidated Account,
20 which this subsection appropriates accordingly.
21 (2) The Treasurer must cause to be credited to the Consolidated
22 Account any amounts received or recovered from the Council or
23 otherwise in respect of any payment made by the Treasurer
24 under a guarantee given under section 31.
25 33. Notice of financial difficulty
26 (1) The Council must notify the Minister if it forms the opinion that
27 it is unable to, or will be unlikely to be able to, satisfy any of its
28 financial obligations from the financial resources available to it
29 or likely to be available to it at the time the financial obligation
30 is due.
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Heritage Bill 2017
Part 2 The Council
Division 6 Finance
s. 34
1 (2) The notice must be in writing and give reasons for the Council's
2 opinion.
3 (3) Within 7 days after receipt of the notice, the Minister must --
4 (a) confer with the Treasurer and the Council for the
5 purpose of determining what action is required to ensure
6 that the Council is able to satisfy the relevant financial
7 obligation when it is due; and
8 (b) initiate such action as is required to ensure that the
9 Council is able to satisfy the relevant financial
10 obligation when it is due.
11 (4) For the purposes of subsection (3), the Minister may give the
12 Council a direction requiring the Council to cease or limit the
13 performance of any function.
14 (5) The Council must comply with a direction given under
15 subsection (4).
16 (6) The text of a direction given under subsection (4) must be
17 included in the annual report submitted by the accountable
18 authority of the Council under the Financial Management
19 Act 2006 Part 5.
20 34. Exemption from rates
21 No rate may be charged or levied under the Local Government
22 Act 1995 Part 6 on or in respect of any land for the time being
23 vested in, owned by, leased to or placed under the control of the
24 Council and used or preserved by, or by arrangement with, the
25 Council.
page 22
Heritage Bill 2017
The State Register of Heritage Places Part 3
The register Division 1
s. 35
1 Part 3 -- The State Register of Heritage Places
2 Division 1 -- The register
3 35. The register
4 (1) The Council must establish and maintain a register called the
5 State Register of Heritage Places.
6 (2) It is the objective of the Council and the Minister that the
7 register is a comprehensive register of places of cultural heritage
8 significance that make an important contribution to
9 understanding the heritage of Western Australia.
10 (3) The register must include places that the Minister, on the advice
11 of the Council, has directed to be entered in the register in
12 accordance with Division 2.
13 (4) The Council must make the register available for public
14 inspection in accordance with the regulations.
15 (5) The Council must make information regarding amendments to,
16 and removals of, entries in the register available for public
17 inspection in accordance with the regulations.
18 36. Form and content of register
19 (1) The Council must keep the register in the prescribed manner.
20 (2) An entry in the register in relation to a place must contain --
21 (a) a land description of the place; and
22 (b) the current statement of cultural heritage significance
23 adopted in relation to the place; and
24 (c) any other prescribed particulars.
page 23
Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 2 Entry in the register
s. 37
1 Division 2 -- Entry in the register
2 Subdivision 1 -- Registration conditions
3 37. Conditions for registration
4 (1) It is a condition for the entry of a place in the register that the
5 Council has determined in accordance with section 38 that the
6 place has cultural heritage significance.
7 (2) Subject to subsection (3), it is a condition for the entry of a
8 place in the register that the place not include land that within
9 the preceding 5 years --
10 (a) was removed from a registered place by an amendment
11 made under section 46; or
12 (b) was included in an entry that has been removed from the
13 register under section 51.
14 (3) The Council may apply to the Supreme Court for an order that
15 the condition mentioned in subsection (2) is not to apply to a
16 place specified in the order.
17 38. Factors relevant to cultural heritage significance
18 (1) In determining whether a place has cultural heritage
19 significance the Council must have regard to the following --
20 (a) its importance in demonstrating the evolution or pattern
21 of Western Australia's history;
22 (b) its importance in demonstrating rare, uncommon or
23 endangered aspects of Western Australia's heritage;
24 (c) its potential to yield information that will contribute to
25 an understanding of Western Australia's history;
26 (d) its importance in demonstrating the characteristics of a
27 broader class of places;
28 (e) any strong or special meaning it may have for any group
29 or community because of social, cultural or spiritual
30 associations;
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Heritage Bill 2017
The State Register of Heritage Places Part 3
Entry in the register Division 2
s. 39
1 (f) its importance in exhibiting particular aesthetic
2 characteristics valued by any group or community;
3 (g) any special association it may have with the life or work
4 of a person, group or organisation of importance in
5 Western Australia's history;
6 (h) its importance in demonstrating a high degree of
7 creative or technical achievement;
8 (i) any other characteristic it may have that in the opinion
9 of the Council is relevant to the assessment of cultural
10 heritage significance.
11 (2) A place may have cultural heritage significance despite lacking
12 physical material that substantially contributes to its cultural
13 heritage significance.
14 Subdivision 2 -- Process for entry into register
15 39. Nomination for entry in the register
16 (1) A person may, in accordance with the regulations, nominate a
17 place for entry in the register.
18 (2) Within the prescribed period after receipt of a nomination, the
19 Council must make a preliminary determination as to whether
20 the nominated place warrants review under section 40(1).
21 (3) The Council must give notice in accordance with section 163 of
22 the preliminary determination and the reasons for it to --
23 (a) each owner of the place; and
24 (b) the person that made the nomination; and
25 (c) each person prescribed for the purposes of this
26 subsection.
page 25
Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 2 Entry in the register
s. 40
1 40. Review and registration recommendation
2 (1) The Council may review a place nominated under section 39(1),
3 or any other place that the Council is considering for
4 recommendation for entry in the register, by --
5 (a) determining under section 38 whether the place has
6 cultural heritage significance; and
7 (b) consulting each owner of the place, and undertaking
8 public consultation, in accordance with the regulations,
9 in relation to the entry of the place in the register and the
10 content of a draft statement of cultural heritage
11 significance for the place; and
12 (c) if the Council thinks it necessary and appropriate,
13 making an application under section 37(3).
14 (2) When the Council has completed its review under subsection (1)
15 it may recommend to the Minister that the place be entered in
16 the register.
17 (3) If the Council recommends to the Minister that a place be
18 entered in the register, it must --
19 (a) advise the Minister on the cultural heritage significance
20 of the place and on any submissions received in the
21 course of consultation under subsection (1)(b); and
22 (b) prepare and provide to the Minister a draft register entry
23 (including a proposed statement of cultural heritage
24 significance) in relation to the place.
25 (4) The Council must publish, in accordance with the regulations,
26 an advertisement in relation to a recommendation made under
27 subsection (2).
28 (5) The Council must not include in the advertisement information
29 regarding any person consulted, or any submission received, in
30 the course of public consultation without the consent of the
31 person consulted or the person making the submission.
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Heritage Bill 2017
The State Register of Heritage Places Part 3
Entry in the register Division 2
s. 41
1 41. Direction by Minister
2 (1) If the Council recommends under section 40(2) that a place be
3 entered in the register the Minister must, within the prescribed
4 period --
5 (a) direct the Council to enter the place in the register; or
6 (b) direct the Council not to enter the place in the register
7 and state in writing the reasons for the direction.
8 (2) In giving the direction the Minister must have regard to --
9 (a) the recommendation and advice of the Council under
10 section 40; and
11 (b) any other matter that the Minister considers relevant.
12 (3) The Council must --
13 (a) give notice in accordance with section 163 of the
14 direction and any statement of reasons to --
15 (i) each owner of the place; and
16 (ii) each person prescribed for the purposes of this
17 subsection;
18 and
19 (b) publish, in accordance with the regulations, an
20 advertisement in relation to the direction and any
21 statement of reasons.
22 42. Entry in register
23 (1) As soon as practicable after receiving a direction under
24 section 41(1)(a) in relation to a place, the Council must make an
25 entry in the register in relation to the place in accordance with
26 section 36(2).
27 (2) The Council must --
28 (a) publish in the Gazette a notice in relation to the entry in
29 the register setting out a land description of the place
30 and any other prescribed particulars; and
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Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 3 Amendment of register entries
s. 43
1 (b) give notice in accordance with section 163 of the entry
2 in the register to --
3 (i) each owner of the place; and
4 (ii) each person prescribed for the purposes of this
5 subsection;
6 and
7 (c) give statutory notification of the entry in the register;
8 and
9 (d) notify the Valuer-General of the entry in the register.
10 (3) The Council may publish, in accordance with the regulations, an
11 advertisement in relation to the entry in the register.
12 Division 3 -- Amendment of register entries
13 43. Request for amendment of land description in register entry
14 (1) An owner of land included in a registered place, or if there is
15 more than one owner of that land each of those owners acting
16 jointly, may, in accordance with the regulations, request the
17 Council to amend the land description with respect to that land
18 in an entry in the register relating to the place.
19 (2) Within the prescribed period after receipt of a request under
20 subsection (1), the Council must make a determination as to
21 whether the requested amendment warrants consideration in
22 detail.
23 (3) The Council must give notice in accordance with section 163 of
24 its determination under subsection (2) and the reasons for the
25 determination to --
26 (a) each owner of the land; and
27 (b) each person prescribed for the purposes of this
28 subsection.
page 28
Heritage Bill 2017
The State Register of Heritage Places Part 3
Amendment of register entries Division 3
s. 44
1 44. Detailed consideration of amendment to land description
2 (1) If the Council determines under section 43 or otherwise that an
3 amendment to the land description in an entry in the register
4 warrants consideration in detail it may --
5 (a) review the cultural heritage significance of the place;
6 and
7 (b) consult each owner of the place, and undertake public
8 consultation in relation to the proposed amendment, in
9 accordance with the regulations; and
10 (c) consider whether the requested amendment is desirable,
11 having regard to --
12 (i) the cultural heritage significance of the place;
13 and
14 (ii) the way in which the amendment would affect
15 the cultural heritage significance of the place;
16 and
17 (iii) any submissions received in the course of
18 consultation under paragraph (b);
19 and
20 (d) if the Council thinks it necessary and appropriate, make
21 an application under section 37(3).
22 (2) When the Council has completed consideration in detail under
23 subsection (1), it may recommend to the Minister that the
24 amendment be made.
25 (3) If the Council recommends to the Minister that an amendment
26 to the land description in an entry in the register be made, it
27 must --
28 (a) advise the Minister on --
29 (i) the cultural heritage significance of the place;
30 and
31 (ii) any submissions received in the course of
32 consultation under subsection (1)(b); and
page 29
Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 3 Amendment of register entries
s. 45
1 (iii) its reasons for recommending the amendment be
2 made;
3 and
4 (b) if the amendment was initiated by a request under
5 section 43(1), recommend any conditions that the owner
6 of the land should be required to satisfy before the
7 amendment is made; and
8 (c) prepare and provide to the Minister the amendment that
9 it recommends be made.
10 (4) The Council must publish, in accordance with the regulations,
11 an advertisement in relation to a recommendation made under
12 subsection (2).
13 (5) The Council must not include in the advertisement information
14 regarding any person consulted, or any submission received, in
15 the course of public consultation without the consent of the
16 person consulted or the person making the submission.
17 45. Land description amendment direction by Minister
18 (1) If the Council recommends to the Minister under section 44(2)
19 that an amendment to the land description in an entry in the
20 register be made, the Minister must, within the prescribed
21 period --
22 (a) direct the Council to make the proposed amendment; or
23 (b) direct the Council not to make the proposed amendment
24 and state in writing the reasons for the direction.
25 (2) In giving the direction the Minister must have regard to the
26 advice and recommendations of the Council under
27 section 44(3).
28 (3) A direction under subsection (1)(a) may, if the amendment was
29 initiated by a request under section 43(1), be conditional upon
30 the owner of the land --
31 (a) discharging any costs associated with making the
32 amendment; and
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Heritage Bill 2017
The State Register of Heritage Places Part 3
Amendment of register entries Division 3
s. 46
1 (b) satisfying any other conditions specified by the Minister.
2 (4) The Council must --
3 (a) give notice in accordance with section 163 of a direction
4 under subsection (1) and any statement of reasons to --
5 (i) each owner of the land; and
6 (ii) each person prescribed for the purposes of this
7 subsection;
8 and
9 (b) publish, in accordance with the regulations, an
10 advertisement in relation to the direction and any
11 statement of reasons.
12 46. Amending land description in register entry
13 (1) The Council must amend a land description in an entry in the
14 register as soon as practicable after --
15 (a) it receives a direction under section 45(1)(a) to do so;
16 and
17 (b) any conditions imposed under section 45(3) in relation
18 to making the amendment are satisfied.
19 (2) The Council must --
20 (a) publish in the Gazette a notice setting out the amended
21 land description of the place and any other prescribed
22 particulars; and
23 (b) give notice in accordance with section 163 of the
24 amendment to --
25 (i) each owner of the land; and
26 (ii) each person prescribed for the purposes of this
27 subsection;
28 and
29 (c) give statutory notification of the amendment; and
30 (d) give the Valuer-General notification of the amendment.
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Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 4 Removal of entries from register
s. 47
1 (3) The Council may publish, in accordance with the regulations, an
2 advertisement in relation to the amendment.
3 47. Other amendments
4 (1) The Council must make amendments to the statement of cultural
5 heritage significance in an entry to the register in accordance
6 with regulations made for the purposes of section 53(1).
7 (2) If regulations prescribe other particulars to be included in an
8 entry in the register, the regulations must prescribe procedures
9 for the amendment of those particulars.
10 Division 4 -- Removal of entries from register
11 48. Request for removal
12 (1) The owner of a registered place or, if there is more than one
13 owner the owners acting jointly, may, in accordance with the
14 regulations, request the Council to remove the entry in the
15 register relating to the place.
16 (2) Within the prescribed period after receipt of a request under
17 subsection (1), the Council must make a determination as to
18 whether the requested removal warrants consideration in detail.
19 (3) The Council must give notice in accordance with section 163 of
20 its determination under subsection (2) and the reasons for the
21 determination to each owner of the registered place.
22 (4) If the Council determines that the requested removal does not
23 warrant consideration in detail, the owner of the registered place
24 or, if more than one owner, the owners acting jointly, may, in
25 accordance with the regulations, request the Council to refer the
26 matter to the Minister, who must, within the prescribed
27 period --
28 (a) confirm the Council's determination; or
29 (b) direct the Council to give consideration in detail to the
30 requested removal under section 49.
page 32
Heritage Bill 2017
The State Register of Heritage Places Part 3
Removal of entries from register Division 4
s. 49
1 49. Detailed consideration of removal
2 (1) If the Minister directs the Council under section 48(4)(b) to give
3 consideration in detail to the removal of an entry in the register
4 the Council must --
5 (a) review the cultural heritage significance of the registered
6 place; and
7 (b) undertake public consultation in accordance with the
8 regulations in relation to the removal; and
9 (c) consider whether the removal is desirable, having regard
10 to --
11 (i) the cultural heritage significance of the registered
12 place; and
13 (ii) the way in which the removal would affect the
14 heritage significance of the registered place; and
15 (iii) any submissions received in the course of
16 consultation under paragraph (b) and
17 subsection (3)(b).
18 (2) The Council may act under subsection (1) in relation to an entry
19 in the register without the direction of the Minister if the
20 Council considers it appropriate to do so.
21 (3) If the Council acts under subsection (1) in relation to an entry in
22 the register without the direction of the Minister it must --
23 (a) notify the Minister that it is so acting; and
24 (b) consult each owner of the registered place in accordance
25 with the regulations.
26 (4) When the Council has completed consideration in detail under
27 subsection (1) after direction of the Minister, it must
28 recommend to the Minister --
29 (a) that the entry be removed; or
30 (b) that the entry not be removed.
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Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 4 Removal of entries from register
s. 50
1 (5) When the Council has completed consideration in detail under
2 subsection (1) without direction of the Minister, it may --
3 (a) decide to take no further action and notify the Minister
4 accordingly; or
5 (b) recommend to the Minister that the entry be removed.
6 (6) When the Council makes a recommendation under
7 subsection (4) or (5)(b) it must advise the Minister on --
8 (a) the cultural heritage significance of the registered place;
9 and
10 (b) any submissions received in the course of consultation
11 under subsections (1)(b) and (3)(b); and
12 (c) the Council's reasons for its recommendation; and
13 (d) if the Council's recommendation for removal of the
14 entry was initiated by a request under section 48(1), any
15 conditions that the owner of the registered place should
16 be required to satisfy before the entry is removed.
17 (7) The Council must publish, in accordance with the regulations,
18 an advertisement in relation to a recommendation made under
19 subsection (4) or (5)(b).
20 (8) The Council must not include in the advertisement information
21 regarding any person consulted, or any submission received, in
22 the course of public consultation without the consent of the
23 person consulted or the person making the submission.
24 50. Removal direction by Minister
25 (1) Within the prescribed period after the Council makes a
26 recommendation under section 49(4) or 49(5)(b) the Minister
27 must --
28 (a) direct the Council to remove the entry; or
29 (b) direct the Council not to remove the entry.
30 (2) In giving the direction the Minister must have regard to the
31 advice and recommendation of the Council under section 49.
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Heritage Bill 2017
The State Register of Heritage Places Part 3
Removal of entries from register Division 4
s. 51
1 (3) The Minister must state the reasons for the direction.
2 (4) A direction under subsection (1)(a) to remove an entry may, if
3 the removal was initiated by a request under section 48(1), be
4 conditional upon the owner of the registered place --
5 (a) discharging any costs associated with the removal; and
6 (b) satisfying any other conditions specified by the Minister.
7 (5) A direction under subsection (1)(a) does not take effect until it
8 has been approved by a resolution of each House of Parliament.
9 (6) The Council must --
10 (a) give notice in accordance with section 163 of a direction
11 under subsection (1) and the statement of reasons to --
12 (i) each owner of the registered place; and
13 (ii) each person prescribed for the purposes of this
14 subsection;
15 and
16 (b) publish, in accordance with the regulations, an
17 advertisement in relation to the direction and the
18 statement of reasons.
19 51. Removing entry from register
20 (1) The Council must remove an entry from the register if directed
21 to do so under section 50(1)(a) as soon as practicable after --
22 (a) the satisfaction of any conditions imposed under
23 section 50(4); and
24 (b) the approval of both Houses of Parliament under
25 section 50(5).
26 (2) The Council must --
27 (a) publish in the Gazette a notice of the removal, setting
28 out a land description of the place to which the entry
29 related and any other prescribed particulars; and
page 35
Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 5 Statements of cultural heritage significance
s. 52
1 (b) give notice in accordance with section 163 of the
2 removal to --
3 (i) each owner of the place to which the entry
4 related; and
5 (ii) each person prescribed for the purposes of this
6 subsection;
7 and
8 (c) give statutory notification of the removal; and
9 (d) notify the Valuer-General of the removal.
10 (3) The Council may publish, in accordance with the regulations, an
11 advertisement in relation to the removal.
12 Division 5 -- Statements of cultural heritage significance
13 52. Adoption of statement of cultural heritage significance
14 (1) The Council must adopt a statement of cultural heritage
15 significance in relation to each registered place.
16 (2) A statement of cultural heritage significance must include the
17 prescribed matters.
18 53. Updating and amending statements of cultural heritage
19 significance
20 (1) The Council must review and update the statement of cultural
21 heritage significance for a registered place in accordance with
22 the regulations.
23 (2) The Council may update a statement of cultural heritage
24 significance, without prior notice to or consultation with the
25 owners of the registered place concerned, to --
26 (a) correct or update a name, title, designation or other
27 description; or
28 (b) correct a clerical error or an error because of an
29 accidental omission; or
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The State Register of Heritage Places Part 3
Statements of cultural heritage significance Division 5
s. 54
1 (c) correct information that is factually erroneous; or
2 (d) make any other change to the statement that, in the
3 opinion of the Council, would not be materially relevant
4 to the conservation or management of the place.
5 (3) The Council may amend a statement of cultural heritage
6 significance in any way not mentioned in subsection (2) --
7 (a) if --
8 (i) each owner of the registered place concerned is
9 notified under section 163 of the proposed
10 amendment and, in accordance with the
11 regulations, has an opportunity to make
12 submissions in relation to it; and
13 (ii) no owner objects to the proposed amendment;
14 or
15 (b) if --
16 (i) each owner of the registered place concerned is
17 notified under section 163 of the proposed
18 amendment and, in accordance with the
19 regulations, has an opportunity to make
20 submissions in relation to it; and
21 (ii) the Council undertakes public consultation in
22 relation to the proposed amendment in
23 accordance with the regulations; and
24 (iii) the Minister directs that the proposed amendment
25 be made.
26 54. Notification of adoption, update or amendment
27 The Council must --
28 (a) give notice in accordance with section 163 of the
29 adoption, updating or amendment of a statement of
30 cultural heritage significance under this Division to --
31 (i) each owner of the registered place concerned;
32 and
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Heritage Bill 2017
Part 3 The State Register of Heritage Places
Division 5 Statements of cultural heritage significance
s. 54
1 (ii) each person prescribed for the purposes of this
2 subsection;
3 and
4 (b) publish, in accordance with the regulations, an
5 advertisement in relation to the adoption, updating or
6 amendment of the statement of cultural heritage
7 significance.
page 38
Heritage Bill 2017
Protection orders and repair orders Part 4
Protection orders Division 1
s. 55
1 Part 4 -- Protection orders and repair orders
2 Division 1 -- Protection orders
3 55. Consent order
4 The Minister may make an order under this section in relation to
5 a place (a consent order) if --
6 (a) the Minister considers that --
7 (i) it is necessary or desirable to provide special
8 protection in respect of a place; and
9 (ii) the likelihood of damage to the place means that
10 a specific prohibition is necessary;
11 and
12 (b) each owner of the place has given prior consent in
13 writing as to the terms of the order.
14 56. Stop work order
15 (1) The Minister may make an order under this section in relation to
16 a place (a stop work order) if the Minister considers that --
17 (a) it is necessary or desirable to provide special protection
18 in respect of a place; and
19 (b) the likelihood of imminent damage to the place means
20 that a specific prohibition is urgently necessary.
21 (2) Subject to subsection (3), the Minister may make the stop work
22 order without the prior consent in writing of each owner of the
23 place as to the terms of the order.
24 (3) Except with the authorisation of the Tribunal under
25 subsection (4), the Minister must not make a stop work order in
26 relation to a place if --
27 (a) a stop work order relating to the place in respect of the
28 same or a similar matter has been revoked or has expired
29 within the preceding 12 months; or
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Heritage Bill 2017
Part 4 Protection orders and repair orders
Division 1 Protection orders
s. 57
1 (b) the place includes land that within the preceding
2 5 years --
3 (i) was removed from a registered place by an
4 amendment made under section 46; or
5 (ii) was included in an entry that has been removed
6 from the register under section 51.
7 (4) The Tribunal may make an order authorising the making of a
8 stop work order that would otherwise be prohibited under
9 subsection (3).
10 57. Continuing protection order
11 (1) The Minister may make an order under this section in relation to
12 a place (a continuing protection order) if --
13 (a) the Minister considers that it is necessary or desirable to
14 provide special protection in relation to the place; and
15 (b) the requirements of subsection (2) have been satisfied.
16 (2) The Minister must not make a continuing protection order
17 unless the Council has --
18 (a) given notice in accordance with section 163 to each
19 owner of land that is likely to be directly affected by the
20 proposed continuing protection order, explaining the
21 nature of the special protection proposed and the reason
22 for it; and
23 (b) consulted each owner of land that is likely to be directly
24 affected by the proposed continuing protection order,
25 and undertaken public consultation in relation to the
26 proposed continuing protection order, in accordance
27 with the regulations; and
28 (c) considered, and advised the Minister on, submissions
29 received in the course of consultation under
30 paragraph (b); and
31 (d) recommended to the Minister that the proposed
32 continuing protection order be made; and
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Heritage Bill 2017
Protection orders and repair orders Part 4
Protection orders Division 1
s. 58
1 (e) published any advertisement required by the regulations.
2 (3) The Minister must state the reasons for making, or determining
3 not to make, a protection order.
4 (4) If, after the Council has recommended to the Minister that a
5 continuing protection order be made, the Minister determines
6 not to make the order, the Council must publish, in accordance
7 with the regulations, an advertisement in relation to the
8 Minister's determination and any statement of reasons.
9 58. Content of protection order
10 (1) A protection order must contain a land description of the place
11 to which the order relates.
12 (2) A protection order may contain prohibitions relating to any or
13 all of the following --
14 (a) the entry of persons on to the place to which the order
15 relates, other than entry by an owner or occupier;
16 (b) the bringing of vehicles, machinery, equipment,
17 materials or substances on to the place;
18 (c) any activity of a kind that, in the opinion of the Minister,
19 is likely to affect detrimentally --
20 (i) the cultural heritage significance of the place; or
21 (ii) the capacity to effect conservation of its cultural
22 heritage significance;
23 (d) the demolition, damage or alteration of the place or any
24 part of the place;
25 (e) anything that, in the opinion of the Minister, is likely to
26 cause disturbance to the place;
27 (f) any development affecting the place or other matter in
28 respect of which the Minister is satisfied a prohibition is
29 needed to further the objectives of this Act.
30 (3) A prohibition contained in a protection order may be expressed
31 to be absolute or conditional or subject to the exercise of
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Heritage Bill 2017
Part 4 Protection orders and repair orders
Division 1 Protection orders
s. 59
1 discretion by a person specified in the order, and effect must be
2 given to the prohibition in accordance with the tenor of the
3 order.
4 (4) Regulations may prescribe activities that may be carried out
5 despite the terms of a protection order or of a particular class of
6 protection orders and the protection order or class of protection
7 orders are taken not to apply to those activities.
8 59. Notification of protection order
9 If a protection order is made, the Council --
10 (a) must serve a copy of the order, where practicable, on
11 each owner and occupier of the place to which the order
12 relates; and
13 (b) must give statutory notification of the making of the
14 order; and
15 (c) except in the case of a stop work order, must publish the
16 order in the Gazette; and
17 (d) may publish, in accordance with the regulations, an
18 advertisement containing a summary of the terms of the
19 order and setting out a sufficient description to identify
20 the place to which the order relates; and
21 (e) may erect signs on or near the place to which the order
22 relates for the purpose of informing the public of the
23 making of the order and of the matters the order
24 prohibits.
25 60. Coming into effect of protection order
26 (1) A consent order or a continuing protection order takes effect on
27 the day after the day on which it is published in the Gazette.
28 (2) A stop work order takes effect when whichever of the following
29 happens first--
30 (a) a copy of the order is affixed in a prominent position on
31 the place to which the order relates;
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Protection orders and repair orders Part 4
Protection orders Division 1
s. 61
1 (b) a copy of the order is served on a person carrying out, or
2 causing to be carried out, any works or other activity at
3 the place to which the order relates, whether or not
4 served at the place.
5 61. Duration of protection order
6 (1) The Minister may revoke a protection order, after consultation
7 with the Council, by an order published in the Gazette.
8 (2) A protection order ceases to have effect --
9 (a) in the case of a consent order, on the expiry date, if any,
10 specified in the order;
11 (b) in the case of a stop work order --
12 (i) on the expiry of 60 days from the making of the
13 order; or
14 (ii) if the order is continued in force by the Tribunal
15 under section 62(5), on the expiry date fixed by
16 the Tribunal;
17 (c) in the case of a continuing protection order, on the
18 expiry date, if any, specified in the order;
19 (d) in any case, when an order revoking the protection order
20 is published under subsection (1).
21 (3) If a protection order ceases to have effect, the Council must --
22 (a) give notice in accordance with section 163 that the order
23 has ceased to have effect to --
24 (i) each owner of the place to which the order
25 relates; and
26 (ii) each person prescribed for the purposes of this
27 subsection;
28 and
29 (b) give statutory notification of the cessation; and
30 (c) remove any signs erected under section 59(e).
page 43
Heritage Bill 2017
Part 4 Protection orders and repair orders
Division 1 Protection orders
s. 62
1 62. Tribunal's powers as to protection order
2 (1) The owner of a place to which a stop work order or a continuing
3 protection order relates may apply to the Tribunal for a review
4 of the order.
5 (2) The Minister may refer a stop work order to the Tribunal
6 seeking a determination that the order continue to have effect
7 for a period greater than 60 days from the making of the order.
8 (3) The provisions of the Planning and Development Act 2005
9 Part 14 apply to applications and referrals under this section,
10 with any modification that may be necessary, as they apply to
11 applications for review under that Act.
12 (4) On an application under subsection (1) the Tribunal may --
13 (a) revoke the protection order; or
14 (b) confirm the protection order; or
15 (c) modify the protection order.
16 (5) On a referral under subsection (2) the Tribunal may order that
17 the stop work order continues in force in relation to such of the
18 prohibitions contained in the order as the Tribunal specifies --
19 (a) permanently; or
20 (b) for a period that expires on a date fixed by the Tribunal.
21 (6) The operation of a stop work order that is the subject of an
22 application or referral under this section is not stayed by the
23 application or referral and the Tribunal cannot stay the operation
24 of the order.
page 44
Heritage Bill 2017
Protection orders and repair orders Part 4
Repair orders Division 2
s. 63
1 Division 2 -- Repair orders
2 63. Terms used
3 In this Division --
4 managed reserve has the meaning given in the Land
5 Administration Act 1997 section 3(1);
6 repair notice means a notice given under section 64(2) in
7 accordance with section 163;
8 unallocated Crown land has the meaning given in the Land
9 Administration Act 1997 section 3(1);
10 unmanaged reserve has the meaning given in the Land
11 Administration Act 1997 section 3(1).
12 64. Repair notice
13 (1) This section applies if --
14 (a) a registered place suffers from neglect of a prescribed
15 kind or extent; and
16 (b) the Council considers that, as a consequence of the
17 neglect, works are required to prevent irreversible
18 deterioration to the place.
19 (2) The Council may give a notice to the owner or occupier of the
20 place stating that, unless works specified in the notice are
21 completed by a date specified in the notice, the Council will
22 advise the Minister to make a repair order in relation to the
23 place.
24 (3) A repair notice must include any prescribed details.
25 (4) Regulations made for the purposes of this section --
26 (a) must prescribe steps to be taken by the Council to afford
27 the owner or occupier of the place opportunities for
28 consultation and negotiation with the Council regarding
29 works to be undertaken; and
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Heritage Bill 2017
Part 4 Protection orders and repair orders
Division 2 Repair orders
s. 65
1 (b) may provide for the Council, with the agreement of the
2 owner or occupier of the place, to arrange for works to
3 be undertaken at the expense of the owner or occupier;
4 and
5 (c) if the owner or occupier of the place agrees to the
6 Council arranging works, may provide for the Council
7 to --
8 (i) accept payment from the owner or occupier in
9 respect of the works; or
10 (ii) take a charge over property or other assets to
11 secure payment in respect of the works.
12 65. Repair order
13 (1) Subject to subsections (2) and (3), the Minister may make an
14 order under this section in relation to a registered place (a repair
15 order) requiring the owner or occupier of the place to undertake
16 specified works for any or all of the following purposes --
17 (a) protecting the place from damage or deterioration due to
18 fire, weather or other causes;
19 (b) securing the place from intrusion or vandalism;
20 (c) maintaining or repairing the place to remedy or prevent
21 serious or irreparable damage or deterioration from any
22 cause.
23 (2) The Minister must not make a repair order unless --
24 (a) the Council has advised the Minister that --
25 (i) it has given a repair notice to the owner or
26 occupier of the place and has taken the
27 prescribed steps for consultation and negotiation;
28 and
29 (ii) neither the works specified in the repair notice
30 nor other works satisfactory to the Council have
31 been carried out; and
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Heritage Bill 2017
Protection orders and repair orders Part 4
Repair orders Division 2
s. 66
1 (iii) the Council considers that works specified in the
2 Council's advice are necessary for any of the
3 purposes mentioned in subsection (1);
4 and
5 (b) the Minister considers, having regard to the advice of
6 the Council, that --
7 (i) a repair order is necessary for any of the
8 purposes mentioned in subsection (1); and
9 (ii) the order is unlikely to cause undue hardship to
10 the person to whom the order is directed.
11 (3) The Minister must not make a repair order in relation to --
12 (a) unallocated Crown land or an unmanaged reserve,
13 except with the consent of the Minister for Lands; or
14 (b) a managed reserve placed in the care, control and
15 management of a Minister of the Crown or another
16 public authority that is responsible to a Minister of the
17 Crown, except with the consent of that Minister; or
18 (c) a place that is owned by a Minister of the Crown or
19 another public authority that is responsible to a Minister
20 of the Crown, except with the consent of that Minister.
21 (4) A repair order must include the following --
22 (a) a land description of the place to which it relates;
23 (b) particulars of the works to be undertaken;
24 (c) a statement of the date by which the works must be
25 completed.
26 66. Notification of repair order
27 (1) The Council must --
28 (a) serve a copy of a repair order on the person to whom it
29 is directed; and
30 (b) give statutory notification of the order.
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Heritage Bill 2017
Part 4 Protection orders and repair orders
Division 2 Repair orders
s. 67
1 (2) The Council may, on or near the place to which a repair order
2 relates, erect signs displaying a copy of the order.
3 67. Standard of works
4 A person undertaking works under a repair notice or repair
5 order must comply with --
6 (a) any applicable requirements under the Building
7 Act 2011, the Local Government Act 1995, the Planning
8 and Development Act 2005 and any other written law
9 specified in the regulations; and
10 (b) any prescribed requirements or standards; and
11 (c) any requirements or standards specified in the repair
12 order or repair notice.
13 68. Termination of repair order
14 (1) A repair order terminates if --
15 (a) the Minister withdraws the repair order by notice given
16 in accordance with section 163 to the person to whom
17 the repair order is directed; or
18 (b) the Council confirms by notice given in accordance with
19 section 163 to the person to whom the repair order is
20 directed that the works required by the order have been
21 satisfactorily completed; or
22 (c) the Tribunal revokes the repair order under
23 section 69(3)(a).
24 (2) When a repair order terminates the Council must --
25 (a) withdraw any notification given under section 66(1)(b)
26 in respect of the order; and
27 (b) remove any signs relating to the order erected under
28 section 66(2).
page 48
Heritage Bill 2017
Protection orders and repair orders Part 4
Repair orders Division 2
s. 69
1 69. Tribunal's powers as to repair order
2 (1) A person to whom a repair order is directed may apply to the
3 Tribunal for a review of the order.
4 (2) The provisions of the Planning and Development Act 2005
5 Part 14 apply to applications under this section, with any
6 modification that may be necessary, as they apply to
7 applications for review under that Act.
8 (3) On an application under subsection (1) the Tribunal may --
9 (a) revoke the repair order; or
10 (b) confirm the repair order; or
11 (c) modify the repair order.
12 70. Exclusion of liability
13 Neither the State nor the Minister nor the Council nor any of
14 their officers or employees is liable to any person for any injury,
15 loss or damage suffered as a result of the failure of any person
16 to comply with a repair notice or a repair order.
page 49
Heritage Bill 2017
Part 5 Proposals affecting places of heritage interest
Division 1 Preliminary
s. 71
1 Part 5 -- Proposals affecting places of heritage interest
2 Division 1 -- Preliminary
3 71. Terms used
4 In this Part --
5 decision-maker means a public authority empowered under a
6 written law to make a decision or recommendation in respect of
7 a proposal;
8 proposal means --
9 (a) an application for development approval; or
10 (b) a proposal, project, plan, programme, policy, public
11 work, operation or undertaking for or relating to the
12 development of any land owned, occupied or managed
13 by a public authority; or
14 (c) any other proposal by a public authority to exercise any
15 of its powers in a way that would or might significantly
16 affect the physical character of any land; or
17 (d) a submission or application relating to the development
18 of land of a kind prescribed to be a proposal for the
19 purposes of Division 2;
20 referred proposal means a proposal referred to the Council
21 under section 73(1).
22 Division 2 -- Referral of proposals
23 Subdivision 1 -- Proposals that must be referred
24 72. Proposals to which Subdivision applies
25 (1) This Subdivision applies to a proposal that, if implemented,
26 would, or would be likely to, affect --
27 (a) a registered place; or
28 (b) a place that is the subject of a heritage agreement to
29 which the Council is a party; or
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Heritage Bill 2017
Proposals affecting places of heritage interest Part 5
Referral of proposals Division 2
s. 73
1 (c) a place that is the subject of a protection order, if the
2 terms of the order give the Council discretion to
3 authorise works that the order would otherwise prohibit.
4 (2) For the purposes of subsection (1), a proposal may affect a place
5 even if it is not directly related to that place.
6 73. Referral of certain proposals to Council
7 (1) A decision-maker considering a proposal to which this
8 Subdivision applies must refer the proposal to the Council for
9 its advice.
10 (2) The decision-maker must refer the proposal under
11 subsection (1) as soon as practicable after it becomes aware of
12 the proposal.
13 (3) Subsection (1) does not apply to a proposal to alter the interior
14 fabric of a church or other building used primarily for services
15 of worship if --
16 (a) the church or other building is not a place mentioned in
17 section 72(1)(c); and
18 (b) an owner of the place to which the proposal relates gives
19 the Council at least 60 days notice in writing of the
20 proposed alterations; and
21 (c) the notice includes a declaration by an officer of the
22 church or denomination concerned that the alterations
23 are required solely for liturgical purposes.
24 (4) Regulations may exempt any of the following from the
25 application of subsection (1) --
26 (a) a class of proposals other than proposals that, if
27 implemented, would, or would be likely to, affect a
28 place mentioned in section 72(1)(c);
29 (b) a decision-maker or a class of decision-makers;
30 (c) a proposal that applies to a prescribed place or class of
31 place (other than a place mentioned in section 72(1)(c)).
page 51
Heritage Bill 2017
Part 5 Proposals affecting places of heritage interest
Division 2 Referral of proposals
s. 74
1 74. Advice on referred proposal
2 (1) The Council must provide advice on a referred proposal to the
3 decision-maker and, if the proposal is an application for
4 development approval, to the applicant.
5 (2) In its advice the Council may address all aspects of conserving
6 the place concerned, including --
7 (a) maintenance, preservation, restoration, reconstruction,
8 adaptation and interpretation of the place; and
9 (b) retention of the associations and meanings of the place;
10 and
11 (c) retention or reintroduction of a use of the place.
12 (3) In its advice the Council may have regard to unrectified errors,
13 omissions, refusals or failures in complying with --
14 (a) any advice or approval that the Council has previously
15 given relating to the place concerned; or
16 (b) any obligation under this Act relating to the place
17 concerned.
18 (4) Without limiting any other advice the Council may give in
19 respect of a proposal relating to land of the kind mentioned in
20 section 91, the Council may advise that a decision to approve a
21 proposal relating to the land must be conditional upon the owner
22 of that land entering into a heritage agreement in relation to the
23 land with such parties and on such terms as the Council advises.
24 (5) The Council may modify advice provided, or withdraw advice
25 provided and provide new advice, if --
26 (a) in the view of the Council there has been a material
27 change of circumstances or a substantial lapse of time
28 since it provided the advice; and
29 (b) the decision-maker has not made a decision with respect
30 to the relevant proposal.
page 52
Heritage Bill 2017
Proposals affecting places of heritage interest Part 5
Referral of proposals Division 2
s. 75
1 75. Decision on referred proposal
2 (1) In respect of a referred proposal, a decision-maker must not
3 make a decision that would, or would be likely to, adversely
4 affect to a significant extent a place mentioned in section 72(1)
5 (even though the decision is not directly related to that place)
6 unless --
7 (a) the decision-maker has used its best endeavours to
8 ensure that each person involved in the implementation
9 of the proposal will take all measures to minimise any
10 adverse effect that they can reasonably take; and
11 (b) the decision-maker has complied with section 73; and
12 (c) the decision-maker has either received advice on the
13 referred proposal from the Council under section 74 or
14 waited the prescribed period to receive advice; and
15 (d) subject to subsection (2), the decision made is consistent
16 with advice received from the Council.
17 (2) Subsection (1)(d) does not apply if the decision-maker finds that
18 there is no feasible and prudent alternative to the decision made.
19 (3) If the Council gives advice as mentioned in section 74(4) in
20 respect of a proposal relating to land of the kind mentioned in
21 section 91, the decision-maker must specify that its decision to
22 approve the proposal is conditional upon the owner of the land
23 entering into a heritage agreement in relation to the land with
24 such parties and on such terms as the Council advises.
25 (4) Unless the Council so advises under section 74(4), a
26 decision-maker must not specify that its decision to approve a
27 proposal relating to land of the kind mentioned in section 91 is
28 conditional upon the owner of the land entering into a heritage
29 agreement in relation to the land.
30 (5) The decision-maker must notify the Council in writing of its
31 decision in respect of a referred proposal within the prescribed
32 period after making the decision.
page 53
Heritage Bill 2017
Part 5 Proposals affecting places of heritage interest
Division 2 Referral of proposals
s. 76
1 76. Effect on certain proposals and decisions when place
2 becomes registered place
3 (1) In this section --
4 prescribed proposal , in relation to a registered place, means a
5 proposal that --
6 (a) if implemented or acted upon, would, or would be likely
7 to, affect the place; and
8 (b) is a proposal of a prescribed kind or class.
9 (2) If, at the time that a place becomes a registered place, a
10 decision-maker is considering a prescribed proposal,
11 sections 73, 74 and 75 apply in relation to the prescribed
12 proposal.
13 (3) If, at the time that a place becomes a registered place, a decision
14 to approve, implement or act upon a prescribed proposal has
15 been made by a decision-maker but has not been substantially
16 implemented or acted upon, the Council may direct in writing
17 that the operation of the decision is suspended for a period
18 determined in accordance with the regulations.
19 (4) Regulations may --
20 (a) require a decision-maker to give the Council notice of a
21 prescribed proposal that, if implemented, would, or
22 would be likely to, affect a place that is under
23 consideration for registration under Part 3; and
24 (b) prescribe the circumstances in which a decision-maker
25 must give the Council notice of a decision to which
26 subsection (3) applies.
27 (5) The Council must give notice of a direction under subsection (3)
28 to --
29 (a) the relevant decision-maker; and
30 (b) any person who made an application to the
31 decision-maker in relation to the proposal.
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Proposals affecting places of heritage interest Part 5
Referral of proposals Division 2
s. 77
1 (6) No person may implement or act on a decision the operation of
2 which is suspended under subsection (3) except with the consent
3 in writing of the Council and in such manner and on such
4 conditions as the Council may specify.
5 Subdivision 2 -- Proposals that are not required to be referred
6 77. Decision on certain unreferred proposals
7 (1) This section applies to a proposal that would, or would be likely
8 to, affect a place that is --
9 (a) the subject of a heritage agreement to which the Council
10 is not a party; or
11 (b) the subject of a protection order under which a person
12 other than the Council can authorise works that the order
13 would otherwise prohibit.
14 (2) For the purposes of subsection (1), a proposal may affect a place
15 even if it is not directly related to that place.
16 (3) A decision-maker considering a proposal to which this section
17 applies must make a decision that is consistent with the heritage
18 agreement or protection order, as the case requires.
19 Subdivision 3 -- General
20 78. Regulations
21 Regulations may provide for the following --
22 (a) forms to be used to refer proposals for advice, and for
23 the other purposes of this Part;
24 (b) information, evidence or assistance to be given to the
25 Council in connection with a referred proposal;
26 (c) matters to which the Council must have regard in
27 providing its advice on a referred proposal, and the form
28 and content of that advice;
29 (d) time limits within which the Council must provide
30 advice;
page 55
Heritage Bill 2017
Part 5 Proposals affecting places of heritage interest
Division 3 Proposed works for which there is no decision-maker
s. 79
1 (e) persons (in addition to the decision-maker) who must be
2 notified of advice;
3 (f) the Council to reconsider, at the request of a
4 decision-maker or an applicant for approval of a
5 proposal and in prescribed circumstances and no other
6 circumstances, advice provided with a view to --
7 (i) amending it; or
8 (ii) setting it aside and substituting fresh advice;
9 (g) fees, charges and costs to be paid in connection with the
10 making of a request to reconsider advice provided.
11 Division 3 -- Proposed works for which there is no
12 decision-maker
13 79. Permit for works affecting registered place
14 (1) In this section --
15 works means anything --
16 (a) the doing of which would contravene section 129 but
17 not section 130; and
18 (b) in respect of which no written law provides for
19 authorisation, permission, consent or approval pursuant
20 to an application for development approval; and
21 (c) proposed to be done by a person not empowered under a
22 written law to make a decision or recommendation to do
23 the works.
24 (2) A person may, on payment of the prescribed fee, if any, apply to
25 the Council in accordance with the regulations for a works
26 permit authorising the doing of specified works.
27 (3) Within the prescribed period the Council must consider the
28 application and --
29 (a) grant the works permit, either unconditionally or subject
30 to specified conditions the Council considers to be in
31 furtherance of the objectives of this Act; or
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Proposals affecting places of heritage interest Part 5
Proposed works for which there is no decision-maker Division 3
s. 80
1 (b) refuse the application.
2 (4) The Council must give the applicant notice of its decision in
3 accordance with section 163.
4 (5) Conditions imposed under subsection (3)(a) may include the
5 giving of a bond or other security to ensure compliance with the
6 conditions imposed.
7 (6) If the Council does not notify the applicant of its decision within
8 the prescribed period, it is taken to have refused the application.
9 (7) If the Council proposes to do any works --
10 (a) the Council may apply to the Minister for a works
11 permit authorising the doing of the works; and
12 (b) the Minister must consider and determine the
13 application in accordance with subsections (3) to (6) as
14 if references in those subsections to the Council were
15 references to the Minister.
16 80. Tribunal's powers as to works permit
17 (1) An applicant for a works permit under section 79 who is
18 aggrieved by a decision of the Council made under
19 section 79(3) to refuse the application or attach any condition to
20 the works permit may apply to the Tribunal for a review of the
21 decision.
22 (2) An applicant for a works permit under section 79 who is
23 aggrieved by a decision of the Council taken to have been made
24 under section 79(6) may within 28 days after the expiry of the
25 prescribed period referred to in section 79(6) apply to the
26 Tribunal for a review of the decision.
27 (3) The provisions of the Planning and Development Act 2005
28 Part 14 apply to applications under this section, with any
29 modification that may be necessary, as they apply to
30 applications for review under that Act.
page 57
Heritage Bill 2017
Part 6 Support for conservation
Division 1 Valuation of land
s. 81
1 Part 6 -- Support for conservation
2 Division 1 -- Valuation of land
3 81. Land to which this Division applies
4 This Division applies to --
5 (a) registered land; and
6 (b) land that is subject to a heritage agreement.
7 82. Valuation of land
8 (1) When valuing land to which this Division applies under the
9 Valuation of Land Act 1978, the Valuer-General --
10 (a) must take into account any restrictions on the use of the
11 land arising out of the entry of the land in the register or
12 the heritage agreement to which the land is subject, as
13 the case requires; and
14 (b) must assume --
15 (i) that all improvements to or on the land at the
16 date of valuation that contribute to its cultural
17 heritage significance must be conserved and are
18 not to be demolished; and
19 (ii) that no improvements may be made to or on the
20 land after the date of valuation.
21 (2) Nothing in subsection (1) prevents the Valuer-General from
22 taking into account, in subsequent valuations of the same land,
23 the effect of any improvements or demolitions that have been
24 carried out.
25 83. Request for interim valuation
26 (1) An owner of land to which this Division applies may request the
27 Valuer-General for an interim valuation of the land under the
28 Valuation of Land Act 1978 section 23.
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Support for conservation Part 6
Conservation assistance Division 2
s. 84
1 (2) The Valuer-General must deal with a request for an interim
2 valuation under subsection (1) as a circumstance in which it is
3 expedient that the land be valued if, after the coming into
4 operation of this section and since the last occasion on which
5 the land was valued --
6 (a) the land has become registered land; or
7 (b) the land has become subject to a heritage agreement; or
8 (c) there has been a material amendment to the terms of a
9 heritage agreement to which the land is subject.
10 (3) Nothing in this section affects the operation of the Valuation of
11 Land Act 1978 section 23.
12 Division 2 -- Conservation assistance
13 84. Provision of financial, technical and professional assistance
14 (1) The Council may, to assist with the identification,
15 documentation and conservation of places of cultural heritage
16 significance, and to assist with education, research and
17 publication that furthers the objectives of this Act --
18 (a) with the Minister's prior approval in writing, make
19 grants; and
20 (b) make loans and provide other types of financial
21 assistance; and
22 (c) provide technical or professional assistance.
23 (2) Regulations may provide for the following --
24 (a) types of financial assistance the Council may provide;
25 (b) types of technical or professional assistance the Council
26 may provide;
27 (c) persons who are eligible to receive assistance;
28 (d) projects for which the Council may provide assistance;
29 (e) places in relation to which the Council may provide
30 assistance;
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Part 6 Support for conservation
Division 3 Modification of planning instruments
s. 85
1 (f) the terms and conditions upon which assistance may be
2 provided, including --
3 (i) the provision of security by recipients of
4 assistance for the performance of their
5 obligations in connection with that assistance;
6 and
7 (ii) the entry by recipients of assistance into heritage
8 agreements;
9 (g) forms and procedures for applying for assistance, and
10 considering and determining applications;
11 (h) any other matter connected with or incidental to the
12 provision of assistance.
13 Division 3 -- Modification of planning instruments
14 85. Terms used
15 In this Division --
16 modification order means an order made under section 87(2);
17 planning instrument means --
18 (a) a planning scheme or other planning instrument in force
19 under the Planning and Development Act 2005; or
20 (b) an approved redevelopment scheme or other planning
21 instrument in force under the Metropolitan
22 Redevelopment Authority Act 2011; or
23 (c) the master plan or another planning instrument in force
24 under the Hope Valley-Wattleup Redevelopment Act
25 2000.
26 86. Council may recommend modification order
27 (1) At the request of an owner of a registered place or otherwise,
28 the Council may --
29 (a) advise the Minister that in its opinion a planning
30 instrument or a provision of a planning instrument
31 effectively prevents the conservation of the registered
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Heritage Bill 2017
Support for conservation Part 6
Modification of planning instruments Division 3
s. 87
1 place by making it unlawful or economically unviable;
2 and
3 (b) recommend that the Minister make a modification order
4 in terms set out in the recommendation to enable
5 conservation of the registered place.
6 (2) In acting under subsection (1) the Council must --
7 (a) give due consideration to the public interest and the
8 protection of public health and safety; and
9 (b) take account of any submissions received in accordance
10 with the regulations.
11 (3) The Council must --
12 (a) give notice in accordance with section 163 to interested
13 persons and the public of any advice and
14 recommendation it is considering, setting out proposed
15 terms for the modification order and describing how the
16 order would enable conservation of the registered place;
17 and
18 (b) in accordance with the regulations, consult the following
19 on the advice and recommendation it is considering --
20 (i) the agency or local government responsible for
21 the planning instrument;
22 (ii) the owners of the registered place;
23 (iii) other interested persons and the public.
24 87. Minister may modify planning instruments
25 (1) In this section --
26 specified means specified in the modification order.
27 (2) Subject to subsection (4), the Minister may, by order published
28 in the Gazette, order that a specified planning instrument is
29 taken to be modified so that, in relation to a specified registered
30 place --
31 (a) it does not apply or have effect; or
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Part 6 Support for conservation
Division 3 Modification of planning instruments
s. 87
1 (b) it applies or has effect subject to specified amendments,
2 in specified circumstances or subject to specified
3 conditions.
4 (3) A modification order has effect according to its terms and the
5 specified planning instrument is taken to have been modified
6 accordingly.
7 (4) The Minister must not make a modification order unless --
8 (a) the Council has recommended the terms of the order
9 under section 86; and
10 (b) the Minister considers that in making the
11 recommendation, the Council has given due
12 consideration to the public interest and the protection of
13 public health and safety; and
14 (c) if the Governor has committed the administration of the
15 written law under which the planning instrument
16 concerned was made to another Minister of the Crown,
17 that other Minister has consented in writing to the
18 making of the order; and
19 (d) the Minister considers that the need to conserve the
20 registered place warrants the making of the order, even
21 though the order may affect the interests of persons in a
22 way that is not acceptable to them.
23 (5) If, after the Council has recommended that the Minister make a
24 modification order, the Minister determines not to make the
25 order, the Council must publish, in accordance with the
26 regulations, an advertisement in relation to the Minister's
27 determination and the reasons for it.
28 (6) A modification order takes effect --
29 (a) on the day of publication in the Gazette; or
30 (b) if a later day is specified in the order, on that day.
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Support for conservation Part 6
Modification of planning instruments Division 3
s. 88
1 (7) The Council must notify each owner of the registered place to
2 which a modification order relates of the making and terms of
3 the order and of the day on which it takes effect.
4 (8) The Minister may, by order published in the Gazette --
5 (a) amend a modification order by making another
6 modification order; or
7 (b) revoke a modification order.
8 88. Powers of the Tribunal in relation to modification order
9 (1) Within the period of 28 days after the day on which a
10 modification order is published in the Gazette, a person
11 aggrieved by the order may apply to the Tribunal for a review of
12 the order.
13 (2) The Tribunal may make an order setting aside or amending the
14 modification order if it is satisfied --
15 (a) that any requirement of this Act relating to the
16 modification order has not been complied with; and
17 (b) that the failure to comply has substantially prejudiced
18 the interests of the applicant.
19 (3) If a modification order is amended by the Tribunal it has effect
20 according to its amended terms.
page 63
Heritage Bill 2017
Part 7 Heritage agreements
s. 89
1 Part 7 -- Heritage agreements
2 89. Terms used
3 In this Part --
4 subject land, in relation to a heritage agreement, means land
5 that is the subject of the agreement;
6 successor in title, in relation to land, includes a person who is a
7 mortgagee or the proprietor of an encumbrance in possession of
8 the land pursuant to a mortgage or encumbrance, despite the
9 mortgage or encumbrance being entered into before a memorial
10 was entered on the title or notification of the heritage agreement
11 was otherwise registered under section 97 or notice was given
12 under section 98.
13 90. Heritage agreements
14 (1) The Council or another public authority may make an
15 agreement on behalf of the State with an owner of land of the
16 kind mentioned in section 91 under which the owner, in so far
17 as the owner's interest in the land permits, makes commitments,
18 undertakes obligations, or agrees to provisions, of the kind
19 mentioned in section 92.
20 (2) If another public authority makes an agreement under
21 subsection (1), it must provide each executed copy of the
22 agreement to the Council.
23 (3) The Council must consider whether an agreement made by
24 another public authority under subsection (1) is appropriate for
25 certification by the Minister.
26 (4) The Council --
27 (a) must provide each executed copy of an agreement made
28 by the Council to the Minister and recommend that the
29 Minister certifies the agreement under this section; and
30 (b) may, if it considers that an agreement made by another
31 public authority is appropriate for certification by the
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Heritage agreements Part 7
s. 91
1 Minister, provide each executed copy of the agreement
2 to the Minister and recommend that the Minister
3 certifies the agreement under this section,
4 (5) If the Minister is satisfied that the agreement is desirable for the
5 purposes of, and complies with, this Act, the Minister must
6 certify that fact on each executed copy of the agreement.
7 (6) The heritage agreement comes into operation on --
8 (a) the day on which the Minister certifies the agreement
9 under subsection (5); or
10 (b) if the agreement is certified under subsection (5) but a
11 later day, or the day on which a later event happens, is
12 specified in the agreement as the day on which the
13 agreement comes into operation, that day.
14 91. Land to which a heritage agreement may relate
15 (1) A heritage agreement may relate to land constituting the whole
16 or any part of --
17 (a) a registered place; or
18 (b) a place in relation to which --
19 (i) the Council has made a recommendation under
20 section 40(2); and
21 (ii) the Minister has not yet given a direction under
22 section 41(1);
23 or
24 (c) a place that is the subject of a protection order; or
25 (d) a place included in --
26 (i) a heritage list established or maintained under a
27 local planning scheme; or
28 (ii) a heritage area designated under a local planning
29 scheme;
30 or
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Part 7 Heritage agreements
s. 92
1 (e) any other place the Council has approved as the subject
2 of a heritage agreement by reason of --
3 (i) special interest, not necessarily amounting to
4 significance, relevant to the cultural heritage the
5 place possesses; or
6 (ii) the relationship of the place to a registered place;
7 or
8 (iii) the nature of, or the potential relationship of the
9 place to and its effect or potential effect upon, a
10 particular environment meriting conservation.
11 (2) A heritage agreement may relate to land contiguous to or
12 associated with a place mentioned in subsection (1), but only in
13 so far, and to such depth below the natural surface, as may be
14 reasonably necessary for the purposes of the agreement.
15 92. Form and content of heritage agreement
16 (1) A heritage agreement must be expressed to be made for the
17 purposes of this Part.
18 (2) A heritage agreement --
19 (a) must, in so far as the interest of the owner of the subject
20 land permits, provide for commitments by the owner
21 and the obligations of the owner regarding conservation
22 of the subject land; and
23 (b) subject to the regulations, may include any other
24 provision necessary or convenient for the purposes of
25 carrying into effect the objectives of this Act.
26 (3) Without limiting subsection (2), a heritage agreement may
27 provide for --
28 (a) the carrying out of specified works or works of a
29 specified kind or standard; and
30 (b) restrictions on the carrying out of specified works or
31 works of a specified kind or standard; and
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Heritage agreements Part 7
s. 93
1 (c) requirements or restrictions regarding the design, height,
2 scale, siting, materials or colours connected with any
3 development of the subject land; and
4 (d) requirements or restrictions regarding the use of the
5 subject land; and
6 (e) requirements or restrictions regarding the conservation,
7 interpretation, maintenance or management of the
8 subject land, or of specimens or artefacts in, on or
9 connected with the subject land; and
10 (f) the inspection, by or on behalf of the Council or the
11 public authority that enters into the agreement, of the
12 subject land or of works carried out on the subject land;
13 and
14 (g) the payment of a contribution towards, or the provision
15 of an indemnity in respect of, costs incurred by the
16 Council or the public authority that enters into the
17 agreement in relation to the subject land; and
18 (h) if the Minister has given prior approval in writing, the
19 provision by the owner of the subject land of security for
20 the performance of any commitment or obligation
21 contained in the agreement; and
22 (i) any other prescribed matter.
23 93. Implied and model provisions for heritage agreements
24 (1) Regulations may prescribe provisions relating to --
25 (a) the terms used in heritage agreements and the
26 interpretation of those terms; and
27 (b) the scope, duration and termination of heritage
28 agreements; and
29 (c) the manner of providing notices under heritage
30 agreements; and
31 (d) remedies for breach or repudiation of heritage
32 agreements or default under heritage agreements; and
33 (e) the governing law of heritage agreements; and
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Part 7 Heritage agreements
s. 93
1 (f) procedures for resolving disputes arising under or in
2 connection with heritage agreements; and
3 (g) the measurement of damages, compensation or penalties
4 in connection with heritage agreements; and
5 (h) any other matter connected with the formation,
6 interpretation and enforcement of heritage agreements.
7 (2) The regulations must designate each provision prescribed under
8 subsection (1) as --
9 (a) an implied provision; or
10 (b) a model provision.
11 (3) A designation under subsection (2)(a) may be expressed to have
12 effect in relation to all heritage agreements, or prescribed
13 heritage agreements, or a prescribed class of heritage
14 agreements.
15 (4) An implied provision cannot apply to a heritage agreement
16 made before the coming into operation of this section.
17 (5) If a provision is designated under subsection (2)(a) as an
18 implied provision in relation to a heritage agreement --
19 (a) the implied provision has effect as a provision of the
20 heritage agreement; and
21 (b) if it is inconsistent with another provision of the heritage
22 agreement, the implied provision prevails and the other
23 provision is, to the extent of the inconsistency, of no
24 effect.
25 (6) A provision designated under subsection (2)(b) as a model
26 provision in relation to a heritage agreement may be included as
27 a provision of the heritage agreement by appropriate reference
28 in the express terms of the heritage agreement.
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Heritage Bill 2017
Heritage agreements Part 7
s. 94
1 94. Termination or variation of heritage agreement
2 (1) A heritage agreement may be terminated --
3 (a) by a subsequent heritage agreement made between the
4 same parties or their successors in title that relates to the
5 same subject land; or
6 (b) in a manner or in circumstances provided for in the
7 agreement; or
8 (c) in accordance with the regulations.
9 (2) A heritage agreement may be varied --
10 (a) by a subsequent heritage agreement made between the
11 same parties or their successors in title in relation to the
12 same subject land; or
13 (b) otherwise, in a manner or in circumstances provided for
14 in the agreement.
15 (3) The Council must provide each executed copy of the document
16 evidencing the variation to the Minister and recommend that the
17 Minister certifies it under this section.
18 (4) If the Minister is satisfied that the agreement as varied is
19 desirable for the purposes of, and complies with, this Act, the
20 Minister must certify that fact on each executed copy of the
21 document evidencing the variation.
22 (5) The variation to the heritage agreement comes into operation on
23 the day on which the Minister certifies the document evidencing
24 the variation under subsection (4).
25 (6) Subsections (3) to (5) do not apply to a variation to a heritage
26 agreement that, in accordance with the agreement, extends any
27 time period specified in the agreement within which actions are
28 required to be completed.
29 95. Evidential status of certified agreement
30 In any legal proceeding, an apparently genuine document
31 purporting to be a copy of a heritage agreement or of a
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Heritage Bill 2017
Part 7 Heritage agreements
s. 96
1 document evidencing a variation to a heritage agreement
2 certified under section 90(5) or 94(4) or mentioned in
3 section 94(6) is, in the absence of proof to the contrary, proof of
4 the agreement and its provisions.
5 96. Record of heritage agreements
6 (1) The Council must maintain a record of the text of each heritage
7 agreement, and each variation to a heritage agreement, in
8 operation under this Act.
9 (2) Subject to subsection (3), the Council must make available to
10 any person, on payment of the prescribed fee, if any, a copy of a
11 heritage agreement and of any variation to the agreement.
12 (3) Details or items of information specified in the regulations must
13 be redacted from a copy of a heritage agreement and of any
14 variation to the agreement before it is made available under
15 subsection (2).
16 97. Notification to Registrar
17 (1) In this section --
18 Registrar means the Registrar of Titles or the Registrar of
19 Deeds and Transfers, whichever of them is responsible for
20 registering a notification given under this section.
21 (2) The Council or other public authority that entered into the
22 heritage agreement may, in accordance with the regulations,
23 notify the Registrar of the coming into operation of a heritage
24 agreement.
25 (3) The Registrar, on payment of the prescribed fee, if any, must
26 register the notification and make appropriate endorsements on
27 the title and records in relation to the land to which the heritage
28 agreement relates.
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Heritage agreements Part 7
s. 98
1 (4) If notification of the coming into operation of a heritage
2 agreement is registered under subsection (3) --
3 (a) the rights and obligations of the State and of all parties
4 to the agreement pass to and are binding on and
5 enforceable against or by their respective successors in
6 title; and
7 (b) each successor in title is taken to have notice that the
8 agreement is in operation.
9 98. Notification to Mining CEO
10 (1) The Council or other public authority that entered into the
11 heritage agreement may, in accordance with the regulations,
12 notify the chief executive officer of the department of the Public
13 Service principally assisting in the administration of the Mining
14 Act 1978 (the Mining CEO) of the coming into operation of a
15 heritage agreement.
16 (2) If notification is given under subsection (1) in relation to a
17 heritage agreement, the Mining CEO must --
18 (a) take such steps as may be necessary for the purpose of
19 bringing the agreement to the attention of any person
20 seeking information about a mining tenement granted
21 under the Mining Act 1978 in respect of land to which
22 the agreement relates; and
23 (b) advise the Council or public authority of the name and
24 any known address of each of the persons appearing to
25 hold a mining tenement in respect of land to which the
26 agreement relates.
27 (3) If the Mining CEO provides the name and address of a person
28 under subsection (2)(b) the Council or public authority must
29 take reasonable steps to ensure that notice of the heritage
30 agreement is given to the person.
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Part 7 Heritage agreements
s. 99
1 (4) If notice of a heritage agreement is given under subsection (3) to
2 a person who is the holder of a mining tenement --
3 (a) the rights and obligations of the State and of all parties
4 to the agreement pass to and are binding on and
5 enforceable against or by their respective successors in
6 title in relation to the mining tenement; and
7 (b) each successor in title is taken to have notice that the
8 agreement is in operation.
9 99. Notification to Valuer-General
10 The Council must notify the Valuer-General of the coming into
11 operation of a heritage agreement.
12 100. Enforcement of heritage agreement by Council or public
13 authority
14 (1) A heritage agreement is a contract binding on the State and on
15 all parties and, if notification in relation to the heritage
16 agreement is registered under section 97 or notification is given
17 under section 98, on their respective successors in title.
18 (2) Subject to subsection (3), the Council, or the other public
19 authority that entered into the agreement, on behalf of the State
20 may enforce a heritage agreement against any owner of subject
21 land upon whom it is binding.
22 (3) The Council on behalf of the State must not institute or
23 intervene in a proceeding arising out of a heritage agreement to
24 which the Council is not a party, unless --
25 (a) the public authority that entered into the heritage
26 agreement on behalf of the State consents; or
27 (b) the Minister certifies that in the Minister's view the
28 consent of the public authority has been unreasonably
29 withheld.
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Heritage agreements Part 7
s. 101
1 (4) If a public authority consents as provided in subsection (3)(a) or
2 the Minister certifies as provided in subsection (3)(b) --
3 (a) the Council on behalf of the State may be or become a
4 party to the proceeding as if it had always been a party
5 to the heritage agreement; and
6 (b) the Council has all the rights, including rights of appeal,
7 of a party to the heritage agreement and the proceeding;
8 and
9 (c) the costs of the proceeding on behalf of the State are to
10 be borne by the Council unless the court otherwise
11 orders.
12 101. Powers of the Tribunal in relation to heritage agreement
13 (1) The owner of land to which a heritage agreement may relate
14 under section 91 may apply to the Tribunal to consider stated
15 matters of concern and to determine what provisions a heritage
16 agreement should contain in respect of those matters if --
17 (a) the owner is willing to enter into a heritage agreement
18 with the Council or another public authority; but
19 (b) negotiations for a heritage agreement have not resolved
20 all matters of concern to the owner.
21 (2) On the application of any party to a heritage agreement, the
22 Tribunal may --
23 (a) make an order directing any person to perform their
24 obligations under the agreement; or
25 (b) make an order for the payment of damages or
26 compensation for failure to perform obligations under
27 the agreement; or
28 (c) make any other order that is consistent with the
29 objectives of this Act to secure performance of the
30 agreement.
31 (3) The provisions of the Planning and Development Act 2005
32 Part 14 apply to applications under this section, with any
page 73
Heritage Bill 2017
Part 7 Heritage agreements
s. 101
1 modification that may be necessary, as they apply to
2 applications for review under that Act.
3 (4) Nothing in this section affects the jurisdiction of any court.
page 74
Heritage Bill 2017
Local heritage surveys Part 8
s. 102
1 Part 8 -- Local heritage surveys
2 102. Term used: local heritage survey
3 In this Part --
4 local heritage survey means a survey prepared under
5 section 103(1).
6 103. Local heritage survey
7 (1) A local government must prepare a survey of places in its
8 district that in its opinion are, or may become, of cultural
9 heritage significance.
10 (2) In preparing, or reviewing and updating, a local heritage survey,
11 a local government must have regard to --
12 (a) the purposes set out in section 104; and
13 (b) guidelines published under section 105.
14 (3) Nothing in subsection (2) --
15 (a) derogates from the duty of the local government to
16 exercise its discretion in a particular case; or
17 (b) precludes the local government from taking into account
18 matters not set out in the guidelines.
19 (4) After preparing a local heritage survey, or reviewing and
20 updating, a local heritage survey, a local government must --
21 (a) provide the Council with a copy of the local heritage
22 survey; and
23 (b) make the local heritage survey available to the public.
24 104. Purposes of local heritage survey
25 The purposes of a local heritage survey by a local government
26 include --
27 (a) identifying and recording places that are, or may
28 become, of cultural heritage significance in its district;
29 and
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Part 8 Local heritage surveys
s. 105
1 (b) assisting the local government in making and
2 implementing decisions that are in harmony with
3 cultural heritage values; and
4 (c) providing a cultural and historical record of its district;
5 and
6 (d) providing an accessible public record of places of
7 cultural heritage significance to its district; and
8 (e) assisting the local government in preparing a heritage
9 list or list of heritage areas under a local planning
10 scheme.
11 105. Guidelines for local heritage surveys
12 (1) The Council must issue guidelines about the preparation, review
13 and periodic updating of local heritage surveys, including
14 guidelines about the following --
15 (a) criteria for the inclusion of places in the survey;
16 (b) assessment processes;
17 (c) processes for consultation with interested parties and
18 with the public;
19 (d) processes for reviewing and updating the survey, and the
20 frequency of reviews;
21 (e) processes and mechanisms for making surveys available
22 to the public;
23 (f) any other matter the Council considers appropriate.
24 (2) The guidelines must be published in the prescribed way.
25 (3) The Council may amend or revoke the guidelines.
26 (4) An amendment or revocation under subsection (3) must be
27 published in the prescribed way.
28 (5) The guidelines are not subsidiary legislation for the purposes of
29 the Interpretation Act 1984.
page 76
Heritage Bill 2017
State government heritage Part 9
s. 106
1 Part 9 -- State government heritage
2 106. Terms used
3 In this Part --
4 heritage asset, in relation to a State agency, means a place that
5 is owned, occupied or controlled by the State agency and is --
6 (a) a registered place; or
7 (b) a place prescribed to be a heritage asset for the purposes
8 of this Part;
9 State agency means --
10 (a) a department of the Public Service; or
11 (b) an agency or instrumentality of the State; or
12 (c) a statutory authority as defined in the Financial
13 Management Act 2006 section 3.
14 107. Guidelines about State government heritage
15 (1) The Council must issue guidelines for State agencies about the
16 preparation, review and periodic updating of inventories of
17 places they own, occupy or control.
18 (2) The Council must issue guidelines for State agencies about the
19 management of their heritage assets and about the integration of
20 heritage management into asset management generally.
21 (3) Guidelines issued under subsection (1) or (2) (the guidelines)
22 must be published in the prescribed way.
23 (4) The Council may amend or revoke the guidelines.
24 (5) An amendment or revocation under subsection (4) must be
25 published in the prescribed way.
26 (6) The guidelines are not subsidiary legislation for the purposes of
27 the Interpretation Act 1984.
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Heritage Bill 2017
Part 9 State government heritage
s. 108
1 108. Disposal of heritage assets
2 (1) In this section --
3 dispose of, in relation to a heritage asset, means --
4 (a) to sell all or part of the heritage asset to a person other
5 than a State agency; or
6 (b) to lease all or part of the heritage asset for a period of
7 10 years or longer to a person other than a State agency;
8 or
9 (c) to demolish all or part of structures erected on the
10 heritage asset.
11 (2) Regulations may provide that, before a State agency disposes of
12 a heritage asset --
13 (a) it must give the Council prescribed notice of, and
14 provide prescribed information regarding, the proposed
15 disposal; and
16 (b) it must consult the Council regarding the preparation of
17 a plan or strategy for the continuing conservation of the
18 heritage asset; and
19 (c) in the case of a heritage asset that is a registered place, it
20 must require each purchaser or lessee to enter into a
21 heritage agreement in relation to the heritage asset
22 before the asset is sold or leased.
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Heritage Bill 2017
Acquisition and compensation Part 10
s. 109
1 Part 10 -- Acquisition and compensation
2 109. Compulsory acquisition
3 (1) The Council, after consulting the owner of registered land in
4 accordance with the regulations, may advise the Minister as to
5 whether a declaration should be made under subsection (2) in
6 relation to the land.
7 (2) The Minister, after considering the advice of the Council, may
8 declare that the registered land is required for the protection and
9 preservation of a place of cultural heritage significance.
10 (3) The Minister must not make a declaration under subsection (2)
11 unless --
12 (a) a person has been convicted of an offence under
13 section 132(1) in relation to the registered land; or
14 (b) in the Minister's opinion the owner of the registered
15 land has failed to comply with a repair order in relation
16 to the registered land; or
17 (c) it appears to the Minister on the advice of the Council
18 that the continuation of the registered land in a condition
19 suitable to effect conservation of its cultural heritage
20 significance is in jeopardy.
21 (4) An interest in registered land that is the subject of a declaration
22 made under subsection (2) may be taken under the Land
23 Administration Act 1997 Part 9 as if for a public work within the
24 meaning of that Act, and for the purposes of Parts 9 and 10 of
25 that Act the Council is taken to be the acquiring authority.
26 (5) This section does not affect the power of the Minister for Lands
27 to take registered land under the Land Administration Act 1997
28 Part 9.
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Heritage Bill 2017
Part 10 Acquisition and compensation
s. 110
1 110. Compensation for compulsory acquisition
2 (1) This section applies to registered land if --
3 (a) the land is the subject of a declaration made under
4 section 109(2); and
5 (b) an interest in the land is taken under the Land
6 Administration Act 1997 Part 9; and
7 (c) at least one of the following applies in relation to the
8 land --
9 (i) the owner has been convicted of an offence
10 under section 132(1);
11 (ii) the Minister has reasonable cause to believe that
12 a building or other feature on the land that is of
13 cultural heritage significance has been
14 deliberately allowed to fall into disrepair for the
15 purpose of justifying its demolition and
16 redevelopment or the redevelopment of the land;
17 (iii) the Minister has reasonable cause to believe that
18 the land was acquired by the person claiming
19 compensation within the period of 3 years
20 preceding the taking of the interest in the land.
21 (2) In assessing compensation payable under the Land
22 Administration Act 1997 Part 10 in relation to registered land to
23 which this section applies --
24 (a) the value to be attributed to the land must be assessed
25 having regard to the actual condition of the land and of
26 any building or other feature on the land that is of
27 cultural heritage significance; and
28 (b) it must be assumed that consent would not be granted
29 under any written law for the removal of a building or
30 other feature on the land, or for any development of a
31 building or other feature on the land other than its
32 restoration and conservation; and
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Heritage Bill 2017
Acquisition and compensation Part 10
s. 111
1 (c) no account can be taken of the potential use of the land
2 or of any adjacent land; and
3 (d) any amount a particular purchaser might be prepared to
4 offer by reason of the special needs of that purchaser
5 must be disregarded.
6 111. Tribunal's powers as to acquisition and compensation
7 decision
8 (1) A person who is aggrieved by a declaration made under
9 section 109(2) may apply to the Tribunal to determine whether
10 the Minister has reasonable cause to declare that the land
11 concerned is required for the protection and preservation of a
12 place of cultural heritage significance.
13 (2) A person who is adversely affected by a belief mentioned in
14 section 110(1)(c)(ii) or (iii) held by the Minister may apply to
15 the Tribunal to determine whether the Minister has reasonable
16 cause to hold that belief.
17 (3) The Tribunal may determine an application under this section,
18 and the Minister and the Minister administering the Land
19 Administration Act 1997 Part 9 must give effect to the
20 determination.
21 (4) In an application under this section the nature or degree of the
22 cultural heritage significance of any place is not a matter to be
23 determined by the Tribunal.
24 112. Acquisition by consent
25 Subject to this Act, the Council or a public authority may
26 purchase or otherwise acquire by consent any property or
27 interest in property, and deal with that property or interest, if in
28 the opinion of the Minister that is necessary or desirable in
29 furtherance of the objectives of this Act.
page 81
Heritage Bill 2017
Part 10 Acquisition and compensation
s. 113
1 113. Request for acquisition
2 (1) An owner of land other than Crown land who claims to be
3 denied all economically viable use of the land by the operation
4 of this Act may, by notice in writing, request the Council to
5 acquire the land, or cause it to be acquired, under section 112.
6 (2) If, following a request under subsection (1), the Council
7 declines to acquire the land, or the owner is not satisfied with
8 the terms on which the Council offers to acquire the land, the
9 owner may apply to the Tribunal to determine --
10 (a) whether the owner is denied all economically viable use
11 of the land by the operation of this Act; and
12 (b) if so, whether it is appropriate for the Council to acquire
13 the land to conserve its cultural heritage significance.
14 (3) If the Tribunal determines under subsection (2) that it is
15 appropriate for the Council to acquire the land, it may require
16 the Council to acquire the land where practicable upon terms
17 agreed between the Council and the owner but otherwise by
18 taking it under the Land Administration Act 1997 Part 9 as read
19 with section 109 as though the land were the subject of a
20 declaration made under section 109(2).
page 82
Heritage Bill 2017
Enforcement Part 11
Inspectors Division 1
s. 114
1 Part 11 -- Enforcement
2 Division 1 -- Inspectors
3 114. Appointment of inspectors
4 (1) The Minister may, by instrument in writing, appoint a person to
5 be an inspector for the purposes of this Act.
6 (2) An appointment may be for a fixed period specified in the
7 instrument of appointment or for an indefinite period.
8 (3) The functions of an inspector are subject to any limitations or
9 conditions specified in the instrument of appointment.
10 (4) The Minister may, by instrument in writing, revoke the
11 appointment of an inspector at any time.
12 (5) The appointment of an inspector does not --
13 (a) mean that the Public Sector Management Act 1994
14 Part 3 or any other Act applying to persons as officers of
15 the Public Service applies to the inspector; or
16 (b) affect the application to the inspector of any Act referred
17 to in paragraph (a) that applied to the inspector at the
18 time of the appointment.
19 115. Police officers to have functions of inspectors
20 (1) For the purposes of this Act, a police officer --
21 (a) has and may perform all of the functions of an inspector;
22 and
23 (b) when performing those functions, has all the powers and
24 immunities of an inspector.
25 (2) The powers that a police officer may exercise in performing a
26 function under this section are in addition to the powers that the
27 police officer has under any other law.
page 83
Heritage Bill 2017
Part 11 Enforcement
Division 2 Entry and investigation
s. 116
1 116. Identity cards
2 (1) The CEO must give each inspector an identity card.
3 (2) The identity card must --
4 (a) identify the person as an inspector; and
5 (b) contain a recent photograph of the person.
6 (3) An inspector must produce the inspector's identity card
7 whenever requested to do so in connection with the performance
8 of the functions of an inspector under this Act.
9 (4) A person must not, without reasonable excuse, fail to return the
10 person's identity card to the CEO within 14 days of ceasing to
11 be an inspector.
12 Penalty for this subsection: a fine of $5 000.
13 Division 2 -- Entry and investigation
14 117. Term used: investigation purposes
15 In this Division --
16 investigation purposes means --
17 (a) ascertaining whether the requirements of this Act, or
18 requirements arising under this Act or an agreement
19 made under this Act, are being or have been observed;
20 and
21 (b) obtaining evidence of a suspected offence under this Act
22 or a suspected breach of a heritage agreement or other
23 agreement made under this Act.
24 118. Entry for investigation purposes
25 Subject to section 114(3), an inspector may, for investigation
26 purposes enter any land with the consent of the occupier or a
27 person apparently in charge of the land.
page 84
Heritage Bill 2017
Enforcement Part 11
Entry and investigation Division 2
s. 119
1 119. General powers for investigation purposes
2 (1) Upon entry of a place for investigation purposes, an inspector
3 may do any of the following --
4 (a) make any investigation, observation or inquiry;
5 (b) direct a person who is at the place to do any of the
6 following --
7 (i) state the person's full name, date of birth, the
8 address of where the person is living and the
9 address of where the person usually lives;
10 (ii) answer (orally or in writing) questions asked by
11 the inspector;
12 (iii) produce records that are relevant to the
13 inspection and are in the person's custody or
14 under the person's control;
15 (iv) give other assistance or facilities the inspector
16 reasonably requires;
17 (c) examine, photograph or film the place and any thing at
18 the place;
19 (d) seize any thing that is or may afford evidence of a
20 suspected offence under this Act or a suspected breach
21 of a heritage agreement or other agreement made under
22 this Act.
23 (2) In the exercise of powers under this section an inspector must
24 conform so far as is practicable to any reasonable requirements
25 of the person owning or using the place that are necessary to
26 prevent obstruction of business or operations on or in the place.
27 (3) Regulations may make provision relating to the procedures to be
28 followed by inspectors when carrying out functions under this
29 Act.
page 85
Heritage Bill 2017
Part 11 Enforcement
Division 2 Entry and investigation
s. 120
1 120. Use of assistance
2 (1) An inspector may exercise a power under this Division with the
3 assistance of as many other persons as the inspector considers
4 are reasonably necessary in the circumstances.
5 (2) A person assisting an inspector to exercise a power under this
6 Division has the same protection under this Act as if the person
7 were exercising that power as an inspector.
8 121. Application for entry warrant
9 (1) An inspector may apply to a justice or magistrate for an entry
10 warrant authorising the entry of a place for investigation
11 purposes.
12 (2) An inspector may apply for an entry warrant for a place even if
13 the inspector has power to enter the place without a warrant.
14 (3) The Criminal Investigation Act 2006 section 13 applies to and
15 in respect of an application made under this section and
16 section 13(8) of that Act applies in relation to an entry warrant.
17 (4) An application for an entry warrant must --
18 (a) contain a reasonably particular description of the place
19 to be entered; and
20 (b) state that the inspector has reasonable grounds for
21 believing that entry to the place is necessary for
22 investigation purposes; and
23 (c) state the purposes for which entry to the place is
24 required; and
25 (d) include any other information that is prescribed.
26 122. Issue of entry warrant
27 (1) A justice to whom an application is made under section 121
28 may issue an entry warrant, if satisfied that there are reasonable
29 grounds for believing that entry of the place is necessary for
30 investigation purposes.
page 86
Heritage Bill 2017
Enforcement Part 11
Entry and investigation Division 2
s. 123
1 (2) An entry warrant must contain the following information --
2 (a) a reasonably particular description of the place to be
3 entered;
4 (b) a reasonably particular description of the purposes for
5 which entry to the place is required;
6 (c) the period (not exceeding 30 days) during which it may
7 be executed;
8 (d) the name of the justice or magistrate who issued it;
9 (e) the date and time when it was issued.
10 123. Duration of entry warrant
11 (1) An entry warrant remains in force for the period (not exceeding
12 30 days) specified in the warrant as the period during which it
13 remains in force.
14 (2) However, an entry warrant ceases to be in force when it is
15 executed.
16 124. Effect of entry warrant
17 (1) An entry warrant has effect according to its content and this
18 section.
19 (2) An entry warrant comes into force when it is issued by a justice
20 or magistrate.
21 (3) An entry warrant authorises the inspector executing the warrant,
22 at the times and during the period stated in the warrant --
23 (a) to enter the place described in the warrant; and
24 (b) to exercise the powers referred to in section 119.
25 125. Execution of entry warrant
26 (1) An entry warrant may be executed by the inspector to whom it
27 is issued or by any other inspector.
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Heritage Bill 2017
Part 11 Enforcement
Division 2 Entry and investigation
s. 126
1 (2) An inspector executing an entry warrant must, at the reasonable
2 request of a person apparently in charge of the place, produce
3 the warrant.
4 126. Powers to obtain information
5 (1) The Council may direct an owner or occupier of any place to
6 give the Council any information relating to the place that the
7 Council requires.
8 (2) An inspector may direct an owner or occupier of a place, or a
9 person in charge or apparently in charge of a place, to give the
10 inspector information required by the inspector for the purpose
11 of the performance of the inspector's functions under this Act.
12 (3) An inspector may direct a person who appears to the inspector
13 to be carrying out on a place, or proposing to carry out on a
14 place, works that might involve an offence under this Act to
15 give the name and address of the person who on the date
16 specified in the direction was --
17 (a) the owner of the place or part of the place; or
18 (b) the occupier of the place or part of the place; or
19 (c) in control of any equipment, works or activity appearing
20 to relate to the place or part of the place.
21 (4) A direction under subsection (1) or (3) --
22 (a) must be in writing given to the person required to give
23 the information; and
24 (b) must specify the time at or within which the information
25 is to be given; and
26 (c) may require any of the following --
27 (i) the information to be given orally or in writing;
28 (ii) the information to be given or delivered to a
29 place specified in the direction;
30 (iii) in the case of written information, to be delivered
31 by means specified in the direction;
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Heritage Bill 2017
Enforcement Part 11
Offences Division 3
s. 127
1 (iv) in the case of written information, to be verified
2 by statutory declaration.
3 (5) An inspector may require a person who the inspector believes
4 has committed, or is about to commit, an offence under this Act
5 to state the person's full name and usual place of residence.
6 127. Obstructing performance of functions
7 A person must not --
8 (a) without reasonable excuse hinder or obstruct a person
9 performing a function under this Act; or
10 (b) without reasonable excuse fail to comply with a
11 requirement made or direction given by a person under
12 this Act; or
13 (c) when required to give any information under this Act,
14 give or cause to be given information that the person
15 knows is false or misleading in a material particular.
16 Penalty: a fine of $10 000.
17 128. Impersonation
18 (1) A person must not impersonate an inspector.
19 Penalty for this subsection: a fine of $5 000.
20 (2) A person must not impersonate a member of the Council or a
21 member of the staff or an agent of the Council.
22 Penalty for this subsection: a fine of $500.
23 Division 3 -- Offences
24 129. Damaging registered place
25 (1) Subject to subsection (4), a person must not in, or in relation to,
26 a registered place --
27 (a) alter the fabric of the place or any part of, or thing in,
28 the place so that the cultural heritage significance of the
29 place is detrimentally affected; or
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Heritage Bill 2017
Part 11 Enforcement
Division 3 Offences
s. 129
1 (b) authorise, cause or permit another person to do anything
2 mentioned in paragraph (a).
3 Penalty for this subsection: a fine of $1 000 000.
4 Daily penalty for this subsection: a fine of $50 000.
5 (2) Subject to subsection (4), a person must not in, or in relation to,
6 a registered place --
7 (a) demolish, damage or despoil the place or any part of, or
8 thing in, the place; or
9 (b) authorise, cause or permit another person to do anything
10 mentioned in paragraph (a).
11 Penalty for this subsection: a fine of $1 000 000.
12 Daily penalty for this subsection: a fine of $50 000.
13 (3) Subject to subsection (4), a person must not in, or in relation to,
14 a registered place --
15 (a) remove any thing from that place so that the cultural
16 heritage significance of that place is detrimentally
17 affected; or
18 (b) authorise, cause or permit another person to do anything
19 mentioned in paragraph (a).
20 Penalty for this subsection: a fine of $1 000 000.
21 Daily penalty for this subsection: a fine of $50 000.
22 (4) Subsections (1), (2) and (3) do not apply to a person in respect
23 of work that is authorised by --
24 (a) a decision made in accordance with Part 5 Division 2; or
25 (b) a works permit granted under section 79.
page 90
Heritage Bill 2017
Enforcement Part 11
Offences Division 3
s. 130
1 130. Contravention of protection order
2 (1) A person must not contravene, or authorise, cause or permit
3 another person to contravene, a prohibition contained in a
4 protection order so that the cultural heritage significance of the
5 place to which the order relates is detrimentally affected.
6 Penalty for this subsection: a fine of $1 000 000 and
7 imprisonment for 1 year.
8 Daily penalty for this subsection: a fine of $50 000.
9 (2) A person on whom a copy of a stop work order has been served
10 must not carry out, or authorise, cause or permit to be carried
11 out, any works or activity of a kind prohibited by the order.
12 Penalty for this subsection: a fine of $1 000 000 and
13 imprisonment for 1 year.
14 Daily penalty for this subsection: a fine of $50 000.
15 (3) If a copy of a stop work order is affixed in a prominent position
16 on the place to which it relates, a person must not carry out, or
17 authorise, cause or permit to be carried out, in or in relation to
18 the place, any works or activity of a kind prohibited by the
19 order.
20 Penalty for this subsection: a fine of $1 000 000.
21 Daily penalty for this subsection: a fine of $50 000.
22 (4) A person convicted of an offence under any of
23 subsection (1), (2) or (3) is not liable to be convicted of an
24 offence under any other of those subsections or under any other
25 provision of this Act in respect of a contravention of the same or
26 a substantially similar nature occurring at or about the same
27 time in relation to the same place.
28 131. Onus of proof in demolition offences
29 In any prosecution of an owner of a place for an offence under
30 section 129 or 130 arising from the substantial demolition of a
31 building or structure, if the circumstances suggest that the
32 owner has not suffered significant financial loss as a result of
page 91
Heritage Bill 2017
Part 11 Enforcement
Division 4 Orders following offences
s. 132
1 the demolition the owner is presumed to have carried out, or
2 authorised, caused or permitted another person to carry out, the
3 demolition unless it is proved that the owner did not do so.
4 132. Contravention of repair order
5 (1) The owner of a place to which a repair order relates must
6 complete the works specified in the order by the date specified
7 in the order.
8 Penalty for this subsection: a fine of $1 000 000 and
9 imprisonment for 1 year.
10 Daily penalty for this subsection: a fine of $50 000.
11 (2) If an act or omission is an offence under subsection (1) and also
12 an offence under another provision of this Act, a person
13 convicted of an offence under subsection (1) is not liable to be
14 proceeded against under that other provision in respect of a
15 contravention of the same or a substantially similar nature
16 occurring at or about the same time in relation to the same
17 place.
18 Division 4 -- Orders following offences
19 133. Restoration order
20 (1) In this section --
21 specified means specified in the order.
22 (2) If a person is convicted of an offence under this Act involving
23 the alteration of the fabric of, or the demolition, damage or
24 despoliation of, any place or the removal of any thing from any
25 place, a court of competent jurisdiction may, instead of or in
26 addition to any other penalty imposed, order the person, within
27 the specified period --
28 (a) to take specified measures to restore the place, or any
29 specified land, feature, building or structure, or to return
30 any thing to the place, so that the place is restored to the
page 92
Heritage Bill 2017
Enforcement Part 11
Orders following offences Division 4
s. 134
1 state in which it was before the offence occurred or to a
2 state specified in the order; or
3 (b) to pay to a specified person a specified amount, being an
4 amount the court determines to be appropriate to enable
5 measures that are required to be carried out; or
6 (c) to make any other restitution determined by the court.
7 (3) Before making an order under subsection (2), the court must
8 obtain and have regard to the recommendation of the Council as
9 to whether the order should be made and, if the Council
10 recommends the order should be made, the measures to be
11 specified.
12 (4) A person must comply with an order made under subsection (2).
13 Penalty for this subsection: a fine of $1 000 000.
14 Daily penalty for this subsection: a fine of $50 000.
15 (5) If a person fails to comply with an order made under
16 subsection (2), the Council --
17 (a) may enter upon the land to which the order relates with
18 such persons and things as may be necessary; and
19 (b) may carry out any measures specified in the order; and
20 (c) may recover, in a court of competent jurisdiction, the
21 reasonable expenses of doing so from the person who
22 failed to comply with the order or any successor in title
23 as if it were a debt due.
24 134. Prohibition order
25 (1) In this section --
26 prohibition order means an order made under subsection (2).
page 93
Heritage Bill 2017
Part 11 Enforcement
Division 4 Orders following offences
s. 134
1 (2) Subject to subsection (4), if a person is convicted of an offence
2 under Division 3 in relation to a place, the Governor may order
3 that, during a period of not more than 10 years specified in the
4 order --
5 (a) the land or a specified part of the land included in the
6 place --
7 (i) must not be developed, used or subdivided; or
8 (ii) may be developed, used or subdivided only in
9 accordance with conditions specified in the
10 order;
11 or
12 (b) a specified building or structure in the place --
13 (i) must not be developed or used; or
14 (ii) may be developed or used only in accordance
15 with conditions specified in the order.
16 (3) The order must be published in the Gazette.
17 (4) The Governor must not make a prohibition order if the court
18 recording the conviction recommends that no prohibition order
19 be made.
20 (5) The Governor may --
21 (a) vary a prohibition order by making another prohibition
22 order; or
23 (b) revoke a prohibition order by order published in the
24 Gazette.
25 (6) A person must not contravene a prohibition order or authorise,
26 cause or permit another person to do so.
27 Penalty for this subsection: a fine of $1 000 000 and
28 imprisonment for 1 year.
29 Daily penalty for this subsection: a fine of $50 000.
page 94
Heritage Bill 2017
Enforcement Part 11
Miscellaneous provisions regarding offences Division 5
s. 135
1 (7) If a prohibition order is in force in relation to land included in a
2 place or a building or structure in the place, no approval, permit
3 or other instrument under any written law --
4 (a) operates to authorise or permit a development,
5 subdivision or use of the land, building or structure that
6 would be contrary to the terms of the order; or
7 (b) provides a defence to a charge under subsection (6).
8 (8) If a prohibition order is made in relation to a place, the
9 Council --
10 (a) must, where practicable, serve a copy of the prohibition
11 order on each owner and each occupier of the place to
12 which it relates; and
13 (b) must give statutory notification of the making of the
14 order; and
15 (c) may publish, in accordance with the regulations, an
16 advertisement setting out a summary of the terms of the
17 order and a land description of the place to which it
18 relates.
19 Division 5 -- Miscellaneous provisions regarding offences
20 135. Time limit for commencing criminal proceeding
21 A proceeding for an offence under this Act must be commenced
22 within 3 years after the day on which the offence is alleged to
23 have been committed.
24 136. Council or authorised person may commence prosecution
25 (1) A prosecution for an offence under this Act may be commenced
26 by the Council or by a person authorised in writing by the
27 Council to do so.
28 (2) Subsection (1) does not limit the ability of a person to
29 commence a prosecution for an offence if the person has
30 authority at law to do so.
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Part 11 Enforcement
Division 5 Miscellaneous provisions regarding offences
s. 137
1 (3) In a proceeding for an offence under this Act, unless evidence is
2 given to the contrary, proof is not required --
3 (a) that the prosecutor is authorised to commence the
4 prosecution; or
5 (b) that a signature on a prosecution notice is the signature
6 of a person authorised to commence the prosecution.
7 (4) In a proceeding for an offence under this Act an officer of the
8 Council authorised by the Council may appear on behalf of the
9 Council.
10 137. Compensation order
11 (1) Where in a proceeding taken in the Supreme Court or the
12 District Court against a person contravening or involved in a
13 contravention of this Act (the accused) the court is satisfied that
14 some other person has suffered, or is likely to suffer, loss or
15 damage by reason of the contravention the court may make such
16 order as the court thinks appropriate against the accused for the
17 purpose of compensating the other person wholly or in part for
18 the loss or the cost of making good any damage or reducing the
19 extent of the loss or damage.
20 (2) The court may make an order under subsection (1) whether or
21 not an injunction or other relief is granted.
22 138. Finding of fact in certain proceedings to be evidence in other
23 proceedings
24 (1) In a proceeding under this Act, a finding of fact by a court made
25 in another proceeding against a person for an offence in which
26 that person has been found to have contravened, or to have been
27 involved in a contravention of, this Act is evidence of that fact.
28 (2) A finding of fact mentioned in subsection (1) may be proved by
29 production of a document under the seal of the court from which
30 the finding appears.
page 96
Heritage Bill 2017
Enforcement Part 11
Miscellaneous provisions regarding offences Division 5
s. 139
1 139. Enforcement of requirement to pay money
2 If a person defaults on a requirement, arising from a conviction
3 or an order of a court in respect of a contravention of this Act, to
4 pay costs or another sum of money, the court making the order
5 may --
6 (a) on the application of the Council, whether or not on
7 behalf of another person, order that the amount unpaid
8 be recoverable as if it were a judgment debt payable by
9 the defaulter to the State under a judgment entered in the
10 court; or
11 (b) exercise any power that the court has apart from
12 paragraph (a).
13 140. Continuing offence
14 If a person is convicted of an offence under this Act for a
15 contravention of a continuing nature, the penalty applicable to
16 the offence is a penalty not exceeding --
17 (a) the fine or imprisonment specified in relation to the
18 offence; and
19 (b) a fine calculated by multiplying by the number of days
20 on which the contravention occurs --
21 (i) the fine specified as a daily penalty; or
22 (ii) if no daily penalty is specified, $50.
23 141. Requirement to mitigate damage
24 (1) A person who is convicted of an offence under this Act of
25 causing damage to any property must take such reasonable steps
26 as may be necessary to prevent any further damage resulting
27 from the offence.
28 (2) A person who fails to take reasonable steps as required under
29 subsection (1) commits an offence.
30 Penalty for this subsection: a fine of $50 000 for each day on
31 which the failure continues.
page 97
Heritage Bill 2017
Part 11 Enforcement
Division 5 Miscellaneous provisions regarding offences
s. 142
1 142. Liability of successors in title
2 (1) This section applies if --
3 (a) a person who is an owner of land is served under this
4 Act with a notice or order in relation to the land, or is
5 authorised under this Act to execute any works in
6 relation to the land subject to conditions; and
7 (b) the person ceases to be an owner of the land; and
8 (c) the person shows that a contravention in relation to the
9 notice or order or a condition of the authorisation was
10 attributable, in whole or in part, to the act or default of a
11 subsequent owner who had knowledge of the notice or
12 order or the conditions of the authorisation.
13 (2) If this section applies --
14 (a) the subsequent owner may be brought before the court
15 in the proceeding and found liable in respect of the
16 contravention; and
17 (b) the original owner, on proof that the original owner took
18 all reasonable precautions to secure compliance with the
19 notice or order or the conditions of the authorisation,
20 must not be found liable in respect of the contravention.
21 143. Liability of officers for offences by body corporate
22 (1) In this section --
23 officer, in relation to a body corporate, has the meaning given in
24 the Corporations Act 2001 (Commonwealth) section 9.
25 (2) This section applies to the following offences --
26 (a) an offence under section 129(1), (2) or (3);
27 (b) an offence under section 130(1), (2) or (3);
28 (c) an offence under section 132(1);
29 (d) an offence under section 133(4);
30 (e) an offence under section 134(6).
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Enforcement Part 11
Miscellaneous provisions regarding offences Division 5
s. 144
1 (3) If a body corporate is guilty of an offence to which this section
2 applies, an officer of the body corporate is also guilty of the
3 offence if the officer failed to take all reasonable steps to
4 prevent the commission of the offence by the body corporate.
5 (4) In determining whether things done or omitted to be done by the
6 officer constitute reasonable steps, a court must have regard
7 to --
8 (a) what the officer knew, or ought to have known, about
9 the commission of the offence by the body corporate;
10 and
11 (b) whether the officer was in a position to influence the
12 conduct of the body corporate in relation to the
13 commission of the offence; and
14 (c) any other relevant matter.
15 144. Further provisions relating to liability of officer of body
16 corporate
17 (1) Section 143 does not affect the liability of a body corporate for
18 any offence.
19 (2) Section 143 does not affect the liability of a body corporate, or
20 any other person, under The Criminal Code Chapters II, LVII,
21 LVIII and LIX.
22 (3) An officer of a body corporate may be charged with, and
23 convicted of, an offence in accordance with section 143 whether
24 or not the body corporate is charged with, or convicted of, the
25 principal offence committed by the body corporate.
26 (4) If an officer of a body corporate who is charged with an offence
27 in accordance with section 143 claims that the body corporate
28 would have a defence if it were charged with the offence --
29 (a) the onus of proving the defence is on the officer; and
30 (b) the standard of proof required is the standard that would
31 apply to the body corporate in relation to the defence.
page 99
Heritage Bill 2017
Part 11 Enforcement
Division 5 Miscellaneous provisions regarding offences
s. 145
1 (5) Subsection (4) does not limit any other defence available to the
2 officer.
3 145. Liability of principals for offence by agent
4 (1) If a person (the agent) acting, otherwise than as an employee,
5 for or on behalf of another person (the principal) is charged
6 with an offence under this Act, the principal may also be
7 charged with the offence.
8 (2) If a principal is charged as permitted by subsection (1) and the
9 agent is convicted of the offence, the principal is to be taken to
10 have also committed the offence, subject to subsection (5).
11 (3) If a person (the agent) acting, otherwise than as an employee,
12 for or on behalf of another person (the principal) commits an
13 offence under this Act, then, although the agent is not charged
14 with the offence, the principal may be charged with the offence.
15 (4) If a principal is charged as permitted by subsection (3) and it is
16 proved that the agent committed the offence, the principal is to
17 be taken to have also committed the offence, subject to
18 subsection (5).
19 (5) If under this section a principal is charged with an offence it is a
20 defence to prove that --
21 (a) the offence was committed without the principal's
22 consent or connivance; and
23 (b) the principal took all the measures to prevent the
24 commission of the offence that the principal could
25 reasonably be expected to have taken having regard to
26 all the circumstances.
27 146. Liability of employers for offence by employee
28 (1) If an employee of another person (the employer) is charged as
29 an employee with an offence under this Act, the employer may
30 also be charged with the offence whether or not the employee
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Heritage Bill 2017
Enforcement Part 11
Miscellaneous provisions regarding offences Division 5
s. 147
1 acted without the employer's authority or contrary to the
2 employer's orders or instructions.
3 (2) If an employer is charged as permitted by subsection (1) and the
4 employee is convicted of the offence, the employer is to be
5 taken to have also committed the offence, subject to
6 subsection (5).
7 (3) If an employee of another person (the employer) commits an
8 offence under this Act as an employee, then, although the
9 employee is not charged with the offence, the employer may be
10 charged with the offence whether or not the employee acted
11 without the employer's authority or contrary to the employer's
12 orders or instructions.
13 (4) If an employer is charged as permitted by subsection (3) and it
14 is proved that the employee committed the offence, the
15 employer is to be taken to have also committed the offence,
16 subject to subsection (5).
17 (5) If under this section an employer is charged with an offence it is
18 a defence to prove that --
19 (a) the offence was committed without the employer's
20 consent or connivance; and
21 (b) the employer took all the measures to prevent the
22 commission of the offence that the employer could
23 reasonably be expected to have taken having regard to
24 all the circumstances.
25 147. Agency or employment no defence
26 (1) If proceedings are taken against a person under this Act it is no
27 defence for that person to prove --
28 (a) that the person was the agent or employee of another
29 person; or
30 (b) that the person was acting in pursuance of an order or
31 direction given by another person.
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Heritage Bill 2017
Part 11 Enforcement
Division 5 Miscellaneous provisions regarding offences
s. 148
1 (2) Subsection (1) does not apply if the court is satisfied that the
2 person acted without the knowledge, and could not reasonably
3 be expected to have known, that this Act would be contravened.
4 148. Defences
5 (1) Subject to this section and to sections 142, 143, 145, 146
6 and 147, it is a defence for a person who would otherwise be
7 liable for a contravention of this Act to prove that --
8 (a) the contravention occurred without the consent or
9 connivance of the person; and
10 (b) the person had taken all reasonable precautions to ensure
11 that this Act would not be contravened; and
12 (c) the person could not by the exercise of reasonable
13 diligence have prevented the contravention.
14 (2) If a defence to a proceeding under this Act involves an
15 allegation that a contravention was due to reliance on
16 information supplied by another person or to the act or default
17 of another person, the accused is not entitled to rely on the
18 defence unless --
19 (a) the court gives leave; or
20 (b) the accused has, not later than 7 days before the day on
21 which the hearing of the proceeding commences, served
22 on the person who instituted the proceeding a notice in
23 writing giving whatever information the accused then
24 had that would identify or assist in identifying the other
25 person.
26 149. Offence that is also breach of heritage agreement
27 If a prosecution for an offence under this Act and an action for a
28 breach of a heritage agreement arise out of the same conduct the
29 Council may --
30 (a) pursue either the prosecution or the action; or
31 (b) pursue both the prosecution and the action in separate
32 proceedings; or
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Heritage Bill 2017
Enforcement Part 11
Miscellaneous provisions regarding civil proceedings Division 6
s. 150
1 (c) pursue both the action and the prosecution in combined
2 proceedings.
3 Division 6 -- Miscellaneous provisions regarding civil
4 proceedings
5 150. Action for damages
6 (1) A person who suffers loss or damage by reason of a
7 contravention of this Act may recover the amount of the loss or
8 damage by action against the person who engaged in the
9 conduct that constituted the contravention.
10 (2) An action under subsection (1) must be commenced within
11 3 years after the day on which the cause of action accrued.
12 151. Securing compliance with Act
13 (1) The Minister or the Council may apply to the Supreme Court,
14 the District Court or the Tribunal for an order or injunction for
15 the purpose of securing compliance with this Act or any other
16 written law to give effect to the objectives of this Act.
17 (2) The court or Tribunal may --
18 (a) make an order or grant an injunction as the court or
19 Tribunal thinks fit, including an order or injunction
20 directing a person to do or refrain from doing a specified
21 act; and
22 (b) make any ancillary orders the court or Tribunal thinks
23 fit.
24 (3) The court or Tribunal must not make an order or grant an
25 injunction under subsection (2) unless it is satisfied that the
26 person to whom it is directed --
27 (a) has engaged, or is proposing to engage, in conduct that
28 constitutes or would constitute a contravention of this
29 Act or any other written law by reason of the operation
30 of this Act; or
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Part 11 Enforcement
Division 6 Miscellaneous provisions regarding civil proceedings
s. 151
1 (b) is involved in a contravention of this Act or any other
2 written law by reason of the operation of this Act.
3 (4) The court or Tribunal may grant an interim injunction ex parte
4 pending final determination of an application under this section.
5 (5) In an application under this section the court or Tribunal must
6 not require the applicant to give any undertaking as to damages
7 or costs.
page 104
Heritage Bill 2017
Compensation in relation to work prohibition Part 12
s. 152
1 Part 12 -- Compensation in relation to work
2 prohibition
3 152. Terms used
4 In this Part --
5 compensable loss, in relation to a work prohibition, means a
6 loss that --
7 (a) is capable of being assessed by way of a liquidated
8 amount; and
9 (b) arises out of a contractual or statutory obligation
10 incurred prior to the work prohibition; and
11 (c) except insofar as section 154(2) provides, does not
12 include any element of capital costs or capital
13 depreciation; and
14 (d) takes into account any opportunity for recovery of taxes
15 or diminution of tax liabilities; and
16 (e) is not capable of recovery or mitigation, or further
17 recovery or mitigation;
18 work prohibition means --
19 (a) the making of a stop work order; or
20 (b) the suspension under section 76(3) of the operation of a
21 decision.
22 153. Application for compensation
23 A person may, within the period and in the manner prescribed,
24 apply to the Minister for compensation in respect of a
25 compensable loss if --
26 (a) a work prohibition relating to a place (whether or not a
27 registered place) results in the suspension of a
28 development approval, or a delay in implementing a
29 development approval, relating to the place; and
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Heritage Bill 2017
Part 12 Compensation in relation to work prohibition
s. 154
1 (b) the person --
2 (i) has reasonably and properly incurred expenditure
3 in carrying out work rendered abortive; and
4 (ii) has sustained compensable loss directly
5 attributable to the suspension or delay.
6 154. Recommendation by Minister for compensation
7 (1) When a person applies for compensation under section 153, the
8 Minister must --
9 (a) inquire into whether there are grounds for
10 recommending the payment of compensation; and
11 (b) within the prescribed period make a recommendation to
12 the Treasurer --
13 (i) as to whether the Treasurer should pay
14 compensation to the applicant; and
15 (ii) if the recommendation is that compensation
16 should be paid, on what terms and, having regard
17 to subsections (4) and (5), of what amount.
18 (2) When enquiring under subsection (1)(a) whether expenditure
19 incurred by the applicant was reasonably incurred, the Minister
20 must have regard --
21 (a) to whether --
22 (i) the place concerned was included in a publicly
23 available list of places that for historic or other
24 reasons should be protected; or
25 (ii) the applicant had received, or ought to have
26 taken, notice of the cultural heritage significance
27 of the place;
28 and
29 (b) to the consequential possibility of legal protection or
30 conservation, so that a reasonable person intending to
31 incur expenditure would have been likely to proceed
page 106
Heritage Bill 2017
Compensation in relation to work prohibition Part 12
s. 154
1 with caution and in consultation with relevant
2 authorities and interested bodies.
3 (3) When recommending under subsection (1)(b) that the Treasurer
4 should pay compensation, the Minister may recommend that the
5 applicant should enter into a heritage agreement in relation to
6 the place as a condition of receiving compensation.
7 (4) When recommending an amount of compensation under
8 subsection (1)(b), the Minister must have regard to the
9 following --
10 (a) any expenditure incurred by the applicant in the
11 preparation of plans for the purposes of any work, or
12 upon other necessary matters preparatory to the work;
13 (b) the cost of, and the circumstances relating to, the
14 acquisition of the place by the applicant;
15 (c) any sum payable by the applicant in respect of a breach
16 of contract caused by the necessity of discontinuing or
17 countermanding any works on account of the suspension
18 or delay;
19 (d) any benefit or advantage obtained by the applicant
20 where permission or authorisation for the development
21 of some other land is made possible or is beneficially
22 affected by the operation of, or in consideration of the
23 attainment of the objectives of, this Act;
24 (e) where a heritage agreement in relation to the place is in
25 place or is recommended, the terms or recommended
26 terms of the heritage agreement.
27 (5) When recommending an amount of compensation under
28 subsection (1)(b), the Minister must disregard any prospective
29 use of the place other than the restoration and conservation of a
30 place of cultural heritage significance.
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Heritage Bill 2017
Part 12 Compensation in relation to work prohibition
s. 155
1 155. Treasurer's determination if no recommendation by
2 Minister
3 (1) If the Minister does not make a recommendation in accordance
4 with section 154(1)(b) the applicant may require that the
5 Treasurer determine the matter immediately.
6 (2) If the Treasurer does not refuse the application, the Treasurer is
7 liable to pay to the applicant --
8 (a) an amount agreed between the Treasurer and the
9 applicant; or
10 (b) failing agreement on the amount, an amount
11 determined --
12 (i) by a valuer appointed by agreement between the
13 Treasurer and the applicant; or
14 (ii) failing agreement on the appointment of a valuer,
15 under and in accordance with the Commercial
16 Arbitration Act 2012, or under and in accordance
17 with some other method of determination agreed
18 between the Treasurer and the applicant.
19 (3) The determination of an amount under subsection (2)(b) must
20 take into account the factors mentioned in section 154(2)
21 and (4).
22 156. Restriction on claim for compensation
23 Except as provided in this Part and in Part 10, neither the entry
24 of a place in the register nor the operation of this Act in any
25 other respect gives rise to any action or claim for compensation.
page 108
Heritage Bill 2017
Miscellaneous Part 13
s. 157
1 Part 13 -- Miscellaneous
2 157. No private cause of action
3 This Act does not create --
4 (a) any private cause of action for a remedy for an offence
5 under this Act, other than under section 150; or
6 (b) in relation to a heritage agreement, any cause of action
7 available to a person who is not a party to the agreement
8 for any breach of the agreement.
9 158. Limited effect of processes under the Act
10 (1) In this section --
11 process means --
12 (a) the entry of a place in the register, or the removal or
13 amendment of the entry; or
14 (b) the giving of advice on a referred proposal under
15 section 74; or
16 (c) the making of a protection order, a repair order, an order
17 under section 133 or a prohibition order under
18 section 134; or
19 (d) the formation of a heritage agreement; or
20 (e) the making of a grant or loan or the provision of
21 financial or other assistance under section 84.
22 (2) Except as expressly provided under this Act, no process has the
23 effect, with respect to any land affected, of --
24 (a) giving the State, the Minister or the Council any interest
25 in, claim to, responsibility for or obligation with respect
26 to the land; or
27 (b) affecting the rights or obligations of an owner of the
28 land, or of another person with an interest in or a claim
29 to the land.
page 109
Heritage Bill 2017
Part 13 Miscellaneous
s. 159
1 159. Confidentiality
2 The Council must not disclose any written, oral, electronic or
3 other communication between the Council and an owner or
4 occupier of land, except --
5 (a) with the written consent of the owner or occupier, as the
6 case requires; or
7 (b) for the purposes of, or in connection with, performing
8 functions under this Act or another written law; or
9 (c) as required or allowed under this Act or another written
10 law; or
11 (d) for the purposes of investigating a suspected offence
12 under this Act or the conduct of a proceeding before a
13 court or tribunal arising out of the operation of this Act;
14 or
15 (e) in prescribed circumstances.
16 160. Challenge to entry in register
17 Without prejudice to any shorter limitation period provided
18 under another written law, a proceeding for a review of an
19 action taken by the Council or the Minister under Part 3 cannot
20 be commenced in any court or tribunal if 3 years have elapsed
21 since the day on which the action was taken.
22 161. Protection from personal liability
23 (1) An action in tort does not lie against a person for anything that
24 the person has done, in good faith, in the performance or
25 purported performance of a function under this Act.
26 (2) The protection given by subsection (1) applies even though the
27 thing done as described in that subsection may have been
28 capable of being done whether or not this Act or any other
29 written law had been enacted.
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Heritage Bill 2017
Miscellaneous Part 13
s. 162
1 (3) Despite subsection (1), neither the State nor the Council is
2 relieved of any liability that it might have for another person
3 having done anything as described in that subsection.
4 (4) In this section, a reference to the doing of anything includes a
5 reference to an omission to do anything.
6 162. Fees and charges for recovery of costs by Council
7 (1) Regulations may make provision for and in relation to the
8 imposition by the Council of fees and charges in connection
9 with the recovery of costs incurred by the Council in the
10 performance of prescribed functions under this Act.
11 (2) Regulations made for the purposes of subsection (1) must not
12 provide for the imposition of any fee or charge in connection
13 with --
14 (a) the performance of the Council's functions under Part 3
15 Division 2 Subdivision 2; or
16 (b) the performance of the Council's functions under Part 5
17 Division 2, other than a fee or charge of the kind
18 mentioned in section 78(g).
19 (3) Regulations made for the purposes of subsection (1) may --
20 (a) prescribe fees or charges in connection with the
21 performance of a prescribed function; or
22 (b) prescribe a method for calculating the fees or charges.
23 163. Notices and statutory notification
24 (1) Unless this Act provides otherwise, notice may be given to a
25 person --
26 (a) by giving the person notice in writing; or
27 (b) if permitted under the regulations, by giving the person
28 notice by means of an electronic communication (as
29 defined in the Electronic Transactions Act 2011
30 section 5(1)); or
page 111
Heritage Bill 2017
Part 13 Miscellaneous
s. 164
1 (c) if permitted under the regulations, by publishing an
2 advertisement in accordance with the regulations; or
3 (d) in another prescribed way.
4 (2) Notice must be given within the period, if any, specified in the
5 regulations.
6 (3) A requirement under this Act to give statutory notification of an
7 event is satisfied, subject to and in accordance with regulations,
8 by taking steps to have the event registered, recorded or noted
9 by the Western Australian Land Information Authority or
10 another agency, as appropriate to the case, under --
11 (a) the Mining Act 1978; or
12 (b) the Registration of Deeds Act 1856; or
13 (c) the Transfer of Land Act 1893; or
14 (d) any other written law dealing with the registration of
15 interests in or affecting land.
16 164. Regulations
17 (1) The Governor may make regulations prescribing all matters that
18 are required or permitted by this Act to be prescribed, or are
19 necessary or convenient to be prescribed for giving effect to this
20 Act.
21 (2) Without limiting subsection (1), the regulations may provide
22 for --
23 (a) the form and content of notices and orders given under
24 this Act; and
25 (b) subject to section 162, fees and charges payable under
26 this Act, the persons liable for payment and the recovery
27 of fees and charges.
28 (3) The regulations may provide that contravention of a regulation
29 is an offence, and provide, for an offence against the
30 regulations, a penalty not exceeding a fine of $5 000.
page 112
Heritage Bill 2017
Miscellaneous Part 13
s. 165
1 (4) Regulations made in relation to the manner of publication of an
2 advertisement may provide for the advertisement to be --
3 (a) published in a newspaper circulating generally
4 throughout the State; or
5 (b) published in another newspaper; or
6 (c) published on the Council's website; or
7 (d) published in another prescribed way.
8 165. Review of Act
9 (1) The Minister must carry out a review of the operation and
10 effectiveness of this Act as soon as is practicable after the 10th
11 anniversary of the commencement of this section.
12 (2) The Minister must prepare a report based on the review and, as
13 soon as is practicable after the report is prepared, cause it to be
14 laid before each House of Parliament.
page 113
Heritage Bill 2017
Part 14 Repeal, savings and transitional provisions
Division 1 Repeal
s. 166
1 Part 14 -- Repeal, savings and transitional provisions
2 Division 1 -- Repeal
3 166. Heritage of Western Australia Act 1990 repealed
4 The Heritage of Western Australia Act 1990 is repealed.
5 Division 2 -- Savings and transitional provisions
6 167. Terms used
7 In this Division --
8 1990 Act means the Heritage of Western Australia Act 1990,
9 repealed by section 166;
10 commencement day means the day on which section 166 comes
11 into operation;
12 former Council means the Heritage Council of Western
13 Australia established under the 1990 Act section 5 and in
14 existence immediately before commencement day;
15 former register means the register established and maintained
16 under the 1990 Act section 46;
17 interim period means the period beginning on commencement
18 day and ending on the 2nd anniversary of commencement day;
19 liability means any liability, duty or obligation whether actual,
20 contingent or prospective, liquidated or unliquidated, or whether
21 owed alone or jointly or jointly and severally with any other
22 person;
23 new Council means the Heritage Council of Western Australia
24 established by section 11(1);
25 new register means the State Register of Heritage Places
26 established and maintained under section 35(1);
27 right means any right, power, privilege or immunity whether
28 actual, contingent or prospective.
page 114
Heritage Bill 2017
Repeal, savings and transitional provisions Part 14
Savings and transitional provisions Division 2
s. 168
1 168. Interpretation Act 1984 not affected
2 This Division is in addition to the provisions of the
3 Interpretation Act 1984 and, unless the contrary intention
4 appears, does not limit or otherwise affect the operation of those
5 provisions.
6 169. Council a continuation of former Council
7 (1) The new Council is a continuation of, and the same legal entity
8 as, the former Council.
9 (2) The assets, rights and liabilities of or in relation to the former
10 Council continue as assets, rights and liabilities of or in relation
11 to the new Council.
12 (3) A reference to the former Council in a written law or other
13 document or instrument is, where the context so requires, to be
14 read as if it had been amended to be a reference to the new
15 Council.
16 170. Members of former Council continue in office
17 (1) A person who, immediately before commencement day, was a
18 member of the former Council continues in office under and
19 subject to this Act as a member of the new Council under this
20 Act on and from commencement day.
21 (2) A person who, immediately before commencement day, held
22 office as chairperson of the former Council continues in office
23 under and subject to this Act as chairperson of the new Council
24 on and from commencement day.
25 (3) Without limiting subsections (1) and (2), a member of the new
26 Council holds office --
27 (a) on the terms and conditions that applied to the person's
28 appointment under the 1990 Act; and
29 (b) until the day the member's term of appointment under
30 the 1990 Act would have ended or such earlier day, if
31 any, as the member vacates office under this Act.
page 115
Heritage Bill 2017
Part 14 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 171
1 171. Unfinished proceedings: Council
2 Any proceeding commenced by, or against, the former Council
3 that have not been finally determined by commencement day
4 are, on and from commencement day --
5 (a) to be dealt with and determined as if the proceeding had
6 been commenced by or against the new Council; and
7 (b) to continue under the direction and control of the new
8 Council.
9 172. Completion of things commenced
10 Anything commenced to be done by the former Council before
11 commencement day may be continued by the Council after
12 commencement day so far as the doing of that thing is a
13 function of the new Council.
14 173. Continuing effect of things done
15 Any act, matter or thing done or omitted to be done before
16 commencement day by, to or in respect of the former Council is
17 taken, on and from commencement day, to have been done or
18 omitted by, to or in respect of the new Council --
19 (a) to the extent that the act, matter or thing is relevant to
20 the new Council; and
21 (b) so far as the act, matter or thing --
22 (i) has any force or significance; and
23 (ii) is not governed by another provision of this
24 Division.
25 174. First annual report of Council
26 In its first annual report submitted by the accountable authority
27 of the Council under the Financial Management Act 2006
28 Part 5, the new Council is also to report on the proceedings of
29 the former Council for the period from 1 July in the preceding
30 year to commencement day.
page 116
Heritage Bill 2017
Repeal, savings and transitional provisions Part 14
Savings and transitional provisions Division 2
s. 175
1 175. Heritage Fund a continuation of former Heritage Account
2 The Heritage Fund referred to in section 29 is a continuation of
3 the Heritage Account referred to in the 1990 Act section 14(4).
4 176. Heritage Conservation Incentive Account closed
5 On commencement day the Heritage Conservation Incentive
6 Account referred to in the 1990 Act section 14(5) is closed.
7 177. Register
8 (1) The former register as it exists immediately before
9 commencement day continues on and from commencement day,
10 under and subject to this Act, as the new register.
11 (2) The entry of a place in the former register is taken to be
12 sufficient for the purposes of section 36(2) and to comply with
13 the conditions under section 37(1) and (2).
14 (3) Without prejudice to any shorter limitation period provided
15 under any other written law, no objection to anything done
16 under the 1990 Act Part 5 Division 2 in relation to the former
17 register as it exists immediately before commencement day may
18 be raised or determined in proceedings instituted in any court or
19 tribunal after the expiry of the interim period.
20 178. Interim registration
21 (1) In this section --
22 interim registered place means a place that, immediately before
23 commencement day, is the subject of an interim registration
24 under the 1990 Act section 50;
25 previously registered place means a place that, immediately
26 before commencement day, is the subject of a permanent
27 registration under the 1990 Act section 51.
28 (2) A previously registered place is taken to be a registered place
29 for the purposes of this Act.
page 117
Heritage Bill 2017
Part 14 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 179
1 (3) During the interim period --
2 (a) an interim registered place is taken to be a registered
3 place for the purposes of this Act, other than Part 3
4 Division 2; and
5 (b) an entry may be made in the new register in respect of
6 the interim registered place in accordance with Part 3
7 Division 2.
8 (4) If, after commencement day and by the 2nd anniversary of
9 commencement day, no entry has been made in the new register
10 in respect of an interim registered place, the interim registered
11 place --
12 (a) is no longer taken to be a registered place; and
13 (b) for the purposes of section 37(2) is taken to have been
14 included in an entry that was removed from the register
15 on the 2nd anniversary of commencement day.
16 179. Conservation orders
17 (1) On and from commencement day --
18 (a) a conservation order made under the 1990 Act
19 section 59(2)(a) that is in effect on commencement day
20 is taken to be a consent order for the purposes of this
21 Act; and
22 (b) a conservation order made under the 1990 Act
23 section 59(2)(b) that is in effect on commencement day
24 is taken to be a stop work order for the purposes of this
25 Act; and
26 (c) a conservation order made under the 1990 Act
27 section 59(4) that is in effect on commencement day is
28 taken to be a continuing protection order for the
29 purposes of this Act.
30 (2) Without limiting subsection (1), section 61 applies to a
31 conservation order that is taken under this section to be a
32 consent order, stop work order or continuing protection order.
page 118
Heritage Bill 2017
Repeal, savings and transitional provisions Part 14
Savings and transitional provisions Division 2
s. 180
1 180. Heritage agreements
2 A Heritage Agreement entered into under the 1990 Act
3 section 29 that is in effect on commencement day --
4 (a) continues to have effect as if it were a heritage
5 agreement certified under section 90(5); and
6 (b) continues to bind any successors in title in relation to
7 interests in the land to which the agreement applies, to
8 the extent to which successors in title would have been
9 bound under the 1990 Act.
10 181. Local heritage survey
11 An inventory compiled and maintained under the 1990 Act
12 section 45 is, on and from commencement day, taken for the
13 purposes of Part 8 to be a survey prepared under section 103(1).
14 182. Powers in relation to transitional matters
15 (1) In this section --
16 specified means specified or described in the regulations;
17 transitional matter means a matter that arises as a result of --
18 (a) the repeal of the 1990 Act; or
19 (b) an amendment made under Part 15; or
20 (c) the enactment of this Act.
21 (2) If this Division does not deal sufficiently with a transitional
22 matter the Governor may make regulations prescribing all
23 matters that are required, necessary or convenient to be
24 prescribed in relation to that matter.
25 (3) Regulations made under subsection (2) may provide that a
26 specified provision of this Act does not apply, or applies with
27 specified modifications, to or in relation to any matter.
28 (4) If regulations made under subsection (2) provide that a specified
29 state of affairs is taken to have existed, or not to have existed,
30 on and from a day that is earlier than the day on which the
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Heritage Bill 2017
Part 14 Repeal, savings and transitional provisions
Division 2 Savings and transitional provisions
s. 182
1 regulations are published in the Gazette but not earlier than
2 commencement day, the regulations have effect according to
3 their terms.
4 (5) If regulations contain a provision referred to in subsection (4),
5 the provision does not operate so as --
6 (a) to affect in a manner prejudicial to any person (other
7 than the State or an authority of the State), the rights of
8 that person existing before the day of publication of
9 those regulations; or
10 (b) to impose liabilities on any person (other than the State
11 or an authority of the State) in respect of anything done
12 or omitted to be done before the day of publication of
13 those regulations.
page 120
Heritage Bill 2017
Amendments to other Acts Part 15
s. 183
1 Part 15 -- Amendments to other Acts
2 183. Building Act 2011 amended
3 (1) This section amends the Building Act 2011.
4 (2) In section 20(1)(m) delete "Heritage of Western Australia
5 Act 1990" and insert:
6
7 Heritage Act 2017
8
9 (3) In section 21(1)(i) delete "Heritage of Western Australia
10 Act 1990" and insert:
11
12 Heritage Act 2017
13
14 (4) In section 23(5)(b) delete "Heritage of Western Australia
15 Act 1990" and insert:
16
17 Heritage Act 2017
18
19 184. Constitution Acts Amendment Act 1899 amended
20 (1) This section amends the Constitution Acts Amendment Act 1899.
21 (2) In Schedule V Part 3 delete the item for the Heritage Council of
22 Western Australia and insert:
23
24 The Heritage Council of Western Australia established by
25 the Heritage Act 2017.
26
page 121
Heritage Bill 2017
Part 15 Amendments to other Acts
s. 185
1 185. Liquor Control Act 1988 amended
2 (1) This section amends the Liquor Control Act 1988.
3 (2) In section 77(5a)(a) delete "Register of Heritage Places
4 compiled under the Heritage of Western Australia Act 1990; or"
5 and insert:
6
7 State Register of Heritage Places established and maintained
8 under the Heritage Act 2017; or
9
10 186. Planning and Development Act 2005 amended
11 (1) This section amends the Planning and Development Act 2005.
12 (2) In section 4(1):
13 (a) in the definition of development paragraph (c) delete
14 "Conservation Order made under section 59 of the
15 Heritage of Western Australia Act 1990" and insert:
16
17 protection order made under the Heritage Act 2017
18 Part 4 Division 1
19
20 (b) in the definition of Heritage Council delete "under the
21 Heritage of Western Australia Act 1990;" and insert:
22
23 by the Heritage Act 2017;
24
25 (3) In section 36(b):
26 (a) delete "any Order made under section 59 of the Heritage
27 of Western Australia Act 1990," and insert:
28
29 any protection order made under the Heritage Act 2017
30 Part 4 Division 1,
31
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Heritage Bill 2017
Amendments to other Acts Part 15
s. 186
1 (b) delete "section 60" and insert:
2
3 section 62
4
5 (4) In section 79 delete "the Register or on any inventory
6 maintained under section 45 or 46 of the Heritage of Western
7 Australia Act 1990" and insert:
8
9 the register established and maintained under the Heritage
10 Act 2017 section 35(1) or in any local heritage survey prepared
11 under section 103(1) of that Act
12
13 (5) In section 103(2)(d) delete "Heritage of Western Australia
14 Act 1990" and insert:
15
16 Heritage Act 2017
17
18 (6) In section 112(4) delete "section 78 of the Heritage of Western
19 Australia Act 1990." and insert:
20
21 the Heritage Act 2017 Part 5 Division 2.
22
23 (7) In section 112(5) delete "Heritage of Western Australia
24 Act 1990" and insert:
25
26 Heritage Act 2017
27
page 123
Heritage Bill 2017
Part 15 Amendments to other Acts
s. 186
1 (8) In section 137(1) delete "to which section 78 of the Heritage of
2 Western Australia Act 1990 applies." and insert:
3
4 included in a place of a kind mentioned in the Heritage
5 Act 2017 section 72(1).
6
7 (9) Delete section 137(2) and insert:
8
9 (2) The Commission must not grant an application for its
10 approval under section 135 or 136 in respect of land to
11 which this section applies unless the requirements of
12 the Heritage Act 2017 Part 5 Division 2 have been
13 observed.
14
15 (10) In section 137(3):
16 (a) delete "section 78(2)(a) of the Heritage of Western
17 Australia Act 1990" and insert:
18
19 the Heritage Act 2017 section 76(3)
20
21 (b) in paragraph (a) delete "section 78 of the Heritage of
22 Western Australia Act 1990; or" and insert:
23
24 the Heritage Act 2017 section 76(3); or
25
26 (c) in paragraph (b) delete "section 78(2)(b) and (c) of the
27 Heritage of Western Australia Act 1990." and insert:
28
29 the Heritage Act 2017 section 76(6).
30
31 (11) Delete section 137(4).
page 124
Heritage Bill 2017
Amendments to other Acts Part 15
s. 186
1 (12) Delete section 163 and insert:
2
3 163. Application for development of heritage place
4 An application for approval of development must, if
5 the application is a proposal to which the Heritage
6 Act 2017 section 73(1) applies, be made --
7 (a) in the case of an application under a local
8 planning scheme or local interim development
9 order, to the responsible authority; and
10 (b) in any other case, to the Commission.
11
12 (13) In section 241(2):
13 (a) delete "Heritage of Western Australia Act 1990" and
14 insert:
15
16 Heritage Act 2017
17
18 (b) in paragraph (d) delete "Heritage of Western Australia
19 Act 1990." and insert:
20
21 Heritage Act 2017.
22
23 (14) In section 245(5)(b) delete "land or water to which an entry in
24 the Register maintained under section 46 of the Heritage of
25 Western Australia Act 1990 relates," and insert:
26
27 land included in a place of a kind mentioned in the Heritage
28 Act 2017 section 72(1),
29
page 125
Heritage Bill 2017
Part 15 Amendments to other Acts
s. 187
1 (15) In section 246(3)(a) delete "Heritage of Western Australia
2 Act 1990; or" and insert:
3
4 Heritage Act 2017; or
5
6 (16) Delete section 249(2)(c) and insert:
7
8 (c) an order made under the Heritage Act 2017
9 Part 4 or Part 11 Division 4.
10
11 (17) Delete section 250(2).
12 187. Strata Titles Act 1985 amended
13 (1) This section amends the Strata Titles Act 1985.
14 (2) In section 25(7) delete "section 78 of the Heritage of Western
15 Australia Act 1990." and insert:
16
17 the Heritage Act 2017 Part 5 Division 2.
18
19 (3) In section 25(8) delete "land to which section 78 of the Heritage
20 of Western Australia Act 1990 applies." and insert:
21
22 included in a place of a kind referred to in the Heritage
23 Act 2017 section 72(1).
24
page 126
Heritage Bill 2017
Amendments to other Acts Part 15
s. 188
1 188. Swan Valley Planning Act 1995 amended
2 (1) This section amends the Swan Valley Planning Act 1995.
3 (2) In section 3 in the definition of development paragraph (b)
4 delete "Conservation Order made under section 59 of the
5 Heritage of Western Australia Act 1990" and insert:
6
7 protection order made under the Heritage Act 2017 Part 4
8 Division 1
9
10
page 127
Heritage Bill 2017
Defined terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
1990 Act ........................................................................................................... 167
accused ......................................................................................................... 137(1)
agent ...................................................................................................... 145(1), (3)
CEO ...................................................................................................................... 4
chairperson ............................................................................................................ 4
commencement day .......................................................................................... 167
compensable loss .............................................................................................. 152
consent order ................................................................................................... 4, 55
conservation .......................................................................................................... 4
continuing protection order ........................................................................ 4, 57(1)
Council .................................................................................................................. 4
Crown land............................................................................................................ 4
cultural heritage significance ....................................................................... 4, 5(1)
decision-maker .................................................................................................... 71
Department ........................................................................................................... 4
development .......................................................................................................... 4
development approval ........................................................................................... 4
dispose of ..................................................................................................... 108(1)
document........................................................................................................ 23(1)
employer ............................................................................................... 146(1), (3)
former Council .................................................................................................. 167
former register................................................................................................... 167
heritage agreement ................................................................................................ 4
heritage asset ..................................................................................................... 106
information .................................................................................................... 23(1)
inspector ................................................................................................................ 4
interim period.................................................................................................... 167
interim registered place ................................................................................ 178(1)
investigation purposes....................................................................................... 117
land description ..................................................................................................... 4
liability .............................................................................................................. 167
local heritage survey ......................................................................................... 102
local planning scheme ........................................................................................... 4
managed reserve ................................................................................................. 63
Mining CEO................................................................................................... 98(1)
Minister for Lands ................................................................................................ 4
modification order............................................................................................... 85
new Council ...................................................................................................... 167
new register ....................................................................................................... 167
occupier................................................................................................................. 4
page 128
Heritage Bill 2017
Defined terms
officer ........................................................................................................... 143(1)
owner ................................................................................................................ 4, 6
place ............................................................................................................. 4, 7(1)
planning instrument ............................................................................................ 85
prescribed.............................................................................................................. 4
prescribed proposal ........................................................................................ 76(1)
previously registered place .......................................................................... 178(1)
principal ................................................................................................ 145(1), (3)
process ......................................................................................................... 158(1)
prohibition order .......................................................................................... 134(1)
proposal............................................................................................................... 71
protection order ..................................................................................................... 4
public authority ..................................................................................................... 4
referred proposal ................................................................................................. 71
register .................................................................................................................. 4
registered land ....................................................................................................... 4
registered place ..................................................................................................... 4
Registrar ......................................................................................................... 97(1)
repair notice ........................................................................................................ 63
repair order................................................................................................. 4, 65(1)
right ................................................................................................................... 167
specified ................................................................................ 87(1), 133(1), 182(1)
staff ....................................................................................................................... 4
State agency ...................................................................................................... 106
statutory notification ............................................................................................. 4
stop work order .......................................................................................... 4, 56(1)
subject land ......................................................................................................... 89
successor in title .................................................................................................. 89
the guidelines ............................................................................................... 107(3)
transitional matter ........................................................................................ 182(1)
Tribunal................................................................................................................. 4
unallocated Crown land ...................................................................................... 63
unmanaged reserve ............................................................................................. 63
work prohibition ............................................................................................... 152
works ............................................................................................................. 79(1)
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