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Heritage Amendment Act 2023 No. of 2023 TABLE OF PROVISIONS Clause Page Part 1--Preliminary 1 1 Purpose 1 2 Commencement 2 3 Principal Act 2 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings 3 Division 1--Amendments in relation to notices and publication and inspection of documents 3 4 Definitions 3 5 Section 57 substituted 3 6 Public display of permit applications in certain circumstances 4 7 Section 121 substituted 5 8 Notice of draft World Heritage Strategy Plan 5 9 Section 178 substituted 7 10 Notice of draft World Heritage Management Plan 7 11 Section 190 substituted 8 12 New Part 12A inserted 8 Division 2--Amendments in relation to hearings conducted by the Heritage Council 13 13 Definitions 13 14 Directions about hearings 13 15 Section 248 substituted and new section 248A inserted 13 16 General procedure for hearings 14 17 Persons who may appear before the Heritage Council 15 18 Failure to attend hearing 15 Part 3--Exclusion determinations 16 19 Definitions 16 20 Certain nominations cannot be accepted 16 21 New section 34A inserted 16 22 New Division 2A of Part 3 inserted 18 23 Statement of recommendation 24 24 New section 306 inserted--transitional provision 24 i Clause Page Part 4--General amendments 26 25 Definitions 26 26 Delegation of powers--Heritage Council 27 27 Section 27 heading amended 27 28 New sections 27A and 27B inserted 27 29 Certain nominations cannot be accepted 29 30 Executive Director may refuse nominations in certain circumstances 30 31 Requests for review of the Executive Director's refusal of nomination 31 32 Sections 31 and 32 repealed 31 33 Requests for further information regarding nominations 31 34 Notice of nominations 32 35 Deferral of consideration for nomination 32 36 Owner to notify purchaser of nomination and deferral 32 37 Executive Director recommendations in respect of nominations 33 38 Executive Director recommendations for exempted works or activities 34 39 Statement of recommendation 34 40 Notice of recommendation to be published 37 41 Section 42 amended 37 42 New sections 42A to 42D inserted 38 43 Owners of places, objects and land must comply with obligations 41 44 Submissions to the Heritage Council 41 45 Consideration of submissions to the Heritage Council 42 46 New section 46A inserted 42 47 Section 48 amended 43 48 Determinations of the Heritage Council 43 49 New section 49A inserted 47 50 Minister's call-in powers 47 51 New section 52A inserted 48 52 Notice of registration 48 53 Section 55 repealed 48 54 Heritage certificates 49 55 Offence to remove registered shipwrecks, historic shipwrecks, registered shipwreck artefacts and historic shipwreck artefacts from the State 50 56 Discovery of shipwrecks and shipwreck artefacts to be notified 50 57 Offences in relation to knowingly or recklessly performing certain activities 51 58 Offences in relation to negligently performing certain activities 51 59 Offences in relation to performing certain activities 52 60 Exemption for the purposes of religious services or rites 52 ii Clause Page 61 New section 90A inserted 53 62 Section 91 substituted 55 63 Other exemptions from permits 55 64 Permit applications 56 65 Section 96 amended 56 66 New sections 96A and 96B inserted 58 67 Time for determining permit applications 59 68 Requests for additional information in relation to permit applications 59 69 Stopping of time for permit applications 60 70 Submissions by responsible authorities and municipal councils in relation to permit applications 60 71 Determination of permit applications 60 72 New section 101A inserted 61 73 Section 102 substituted and new sections 102A and 102B inserted 63 74 Section 103 repealed 64 75 Noncompliance with permit 64 76 Amendment of permits 64 77 New sections 105A and 105B inserted 66 78 Review of the Executive Director's determinations relating to permits 69 79 Determination of reviews by the Heritage Council 70 80 Minister's power to call in or refer matter to VCAT 71 81 New section 112A inserted 71 82 Exercise of call-in power by the Minister 72 83 Powers of the Minister on referral 72 84 New section 118A inserted 73 85 Section 119 substituted 75 86 Section 120 amended 76 87 Section 123 substituted 76 88 New section 123A inserted 78 89 Executive Director may issue consents 80 90 New sections 124A, 124B and 124C inserted 82 91 Compliance with consents 85 92 Requests for reviews regarding consents 86 93 New section 126A inserted 86 94 Reporting of investigations and surveys of land 86 95 Approval of recommendation for a site of archaeological value 88 96 New section 139A inserted 88 97 Notices to show cause why works should not be carried out 88 98 Repair orders for carrying out of works 89 99 Executive Director may carry out works 89 100 General powers of entry 90 101 Heritage Fund 90 102 New Part 11A heading inserted 91 103 Statute law revision--section 244 91 iii Clause Page 104 New Division 3 of Part 14 inserted 91 Part 5--Repeal of this Act 97 105 Repeal of this Act 97 ═════════════ Endnotes 98 1 General information 98 iv Heritage Amendment Act 2023 No. of 2023 [Assented to ] The Parliament of Victoria enacts: Part 1--Preliminary 1 Purpose The purpose of this Act is to amend the Heritage Act 2017-- (a) in relation to notices, the publication and inspection of documents and hearings; and (b) to provide for exclusion determinations; and (c) to make other general amendments. 1 Heritage Amendment Act 2023 No. of 2023 Part 1--Preliminary 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 February 2024, it comes into operation on that day. 3 Principal Act In this Act, the Heritage Act 2017 is called the Principal Act. 2 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings Part 2--Amendments in relation to notices, publication and inspection of documents and hearings Division 1--Amendments in relation to notices and publication and inspection of documents 4 Definitions In section 3(1) of the Principal Act insert the following definitions-- "personal information has the same meaning as in section 3 of the Privacy and Data Protection Act 2014; public availability requirements--see section 254A;". 5 Section 57 substituted For section 57 of the Principal Act substitute-- "57 Public availability of the Heritage Register (1) The Heritage Council must publish and make an up to date copy of the Heritage Register available both-- (a) electronically in accordance with the requirements set out in section 254E; and (b) on request in accordance with the requirements set out in section 254D. (2) The Executive Director must make an up to date copy of the Heritage Register available on request in accordance with the requirements set out in section 254D.". 3 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings 6 Public display of permit applications in certain circumstances (1) For section 94(1) of the Principal Act substitute-- "(1) If the Executive Director receives a permit application under section 93 and the Executive Director considers that the proposed works or activities may harm the cultural heritage significance of the place or object, the Executive Director must-- (a) cause notice of a permit application to be published in a newspaper circulating generally in the area in which the registered place or registered object is situated; and (b) make a notice of the permit application available electronically in accordance with the requirements set out in section 254C for a period of 14 days beginning on the day on which the notice is published under paragraph (a). (1A) A notice under subsection (1)(a) is to be published-- (a) as soon as practicable after the Executive Director receives the permit application; or (b) if publication under paragraph (a) would be during the period from 24 December to 9 January next following, as soon as practicable after that period ends.". (2) In section 94(4) of the Principal Act, for "subsection (1)" substitute "subsection (1)(a)". 4 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (3) For section 94(6) of the Principal Act substitute-- "(6) For the period of 14 days beginning on the day on which the notice is published under subsection (1)(a), the Executive Director must make a copy of the application available in accordance with the public availability requirements. (6A) If the Executive Director makes a copy of an application available electronically under subsection (6), the Executive Director must not disclose personal information about an individual, other than the address of the land subject to the application, without the individual's consent.". 7 Section 121 substituted For section 121 of the Principal Act substitute-- "121 Public availability of the Heritage Inventory The Executive Director must publish and make an up to date copy of the Heritage Inventory available both-- (a) electronically in accordance with the requirements set out in section 254E; and (b) on request in accordance with the requirements set out in section 254D.". 8 Notice of draft World Heritage Strategy Plan (1) For section 171(2)(a) of the Principal Act substitute-- "(a) if the Executive Director intends to make a copy of the draft plan available in person in accordance with the requirements set out in 5 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings section 254B, the place at which any person may inspect the draft plan; and (ab) if the Executive Director intends to make a copy of the draft plan available electronically and on request in accordance with the requirements set out in sections 254C and 254D-- (i) the address of the Department's website at which a copy of the draft plan is published; and (ii) the Department's contact details for making a request to inspect a copy of the draft plan; and". (2) For section 171(3) of the Principal Act substitute-- "(3) During the inspection period, the Executive Director and the Heritage Council must make an up to date copy of a draft World Heritage Strategy Plan available in accordance with the public availability requirements. (4) In calculating a period of time under this section, the period from 24 December to 9 January next following is excluded. (5) In this section-- inspection period means the period-- (a) beginning on the day notice of the preparation of the draft World Heritage Strategy Plan is published under subsection (1)(a) or (b), whichever is earlier; and (b) ending on the submission date for the draft plan.". 6 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings 9 Section 178 substituted For section 178 of the Principal Act substitute-- "178 Public availability of Approved World Heritage Strategy Plans The Heritage Council and the Executive Director must make an up to date copy of each Approved World Heritage Strategy Plan available in accordance with the public availability requirements.". 10 Notice of draft World Heritage Management Plan (1) For section 184(2)(b) of the Principal Act substitute-- "(b) if the Executive Director intends to make a copy of the draft plan available in person in accordance with the requirements set out in section 254B, the place at which any person may inspect the draft plan; and (ba) if the Executive Director intends to make a copy of the draft plan available electronically and on request in accordance with the requirements set out in sections 254C and 254D-- (i) the address of the Department's website at which a copy of the draft plan is published; and (ii) the Department's contact details for making a request to inspect a copy of the draft plan; and". (2) For section 184(3) of the Principal Act substitute-- "(3) During the inspection period, the Executive Director must make an up to date copy of a draft World Heritage Management Plan 7 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings available in accordance with the public availability requirements. (4) In calculating a period of time under this section, the period from 24 December to 9 January next following is excluded. (5) In this section-- inspection period means the period-- (a) beginning on the day notice of the preparation of the draft World Heritage Management Plan is published under subsection (1)(a) or (b), whichever is earlier; and (b) ending on the submission date for the draft plan.". 11 Section 190 substituted For section 190 of the Principal Act substitute-- "190 Public availability of Approved World Heritage Management Plans The Executive Director must make an up to date copy of each Approved World Heritage Management Plan available in accordance with the public availability requirements.". 12 New Part 12A inserted After Part 12 of the Principal Act insert-- "Part 12A--Public availability of documents 254A Public availability requirements For the purposes of this Act, the Heritage Council or the Executive Director makes a document available in accordance with the public availability requirements if the 8 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings Heritage Council or the Executive Director makes the document available-- (a) in person in accordance with the requirements set out in section 254B; or (b) both-- (i) electronically in accordance with the requirements set out in section 254C; and (ii) on request in accordance with the requirements set out in section 254D. 254B In person inspection requirements (1) For the Heritage Council, the requirements for making a document available in person are that the Heritage Council makes a document available for inspection-- (a) at the Heritage Council's office; and (b) at any time during the Heritage Council's office hours; and (c) free of charge. (2) For the Executive Director, the requirements for making a document available in person are that the Executive Director makes a document available for inspection-- (a) at the Department's office; and (b) at any time during the Department's office hours; and (c) free of charge. 254C Electronic publication requirements (1) The requirements for making a document available electronically are that the Heritage Council or Executive Director publishes and 9 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings makes a document available, free of charge, on the applicable website. (2) For the purposes of subsection (1), the applicable website is-- (a) for the Heritage Council, a website maintained by or on behalf of the Heritage Council; or (b) for the Executive Director-- (i) if the Executive Director has published a notice specifying an address of a website at which a copy of the document is published, the website at that address; or (ii) in any other case, the Department's website. 254D On request inspection requirements (1) For the Heritage Council, the requirements for making a document or the Heritage Register available on request are that the Heritage Council makes the document or Register available for inspection-- (a) on the request of any person who wants to inspect the document or Register; and (b) at the Heritage Council's office; and (c) at a time that is-- (i) agreed with the person who requests to inspect the document or Register; and (ii) during the Heritage Council's office hours; and (d) free of charge. 10 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (2) For the Executive Director, the requirements for making a document, the Heritage Register or Heritage Inventory available on request are that the Executive Director makes the document, Register or Inventory available for inspection-- (a) on the request of any person who wants to inspect the document, Register or Inventory; and (b) at the Department's office; and (c) at a time that is-- (i) agreed with the person who requests to inspect the document, Register or Inventory; and (ii) during the Department's office hours; and (d) free of charge. 254E Electronic Heritage Register and Heritage Inventory requirements (1) The requirements for making the Heritage Register available electronically are that the Heritage Council makes-- (a) the Register searchable, free of charge, on a website maintained by or on behalf of the Heritage Council; and (b) the information on the Register available, free of charge, on a website maintained by or on behalf of the Heritage Council. (2) The requirements for making the Heritage Inventory available electronically are that the Executive Director makes-- 11 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (a) the Inventory searchable, free of charge, on a website maintained by or on behalf of the Department; and (b) the information on the Inventory available, free of charge, on a website maintained by or on behalf of the Department. 254F Exception to compliance with on request inspection requirements when emergency declaration in force (1) The Heritage Council or the Executive Director is not required to make a document, the Heritage Register or the Heritage Inventory available on request in accordance with the requirements set out in section 254B or 254D if, at the time a request to inspect a document, the Register or the Inventory is made-- (a) there is an emergency declaration in force; and (b) it is not reasonably practicable for the Heritage Council or Executive Director to do so because of a fact or circumstance arising out of the emergency or serious risk to public health in respect of which the declaration has been made. (2) In this section-- emergency declaration means-- (a) a declaration of a state of disaster under section 23 of the Emergency Management Act 1986; or 12 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (b) a pandemic declaration under section 165AB of the Public Health and Wellbeing Act 2008; or (c) a declaration of a state of emergency under section 198 of the Public Health and Wellbeing Act 2008.". Division 2--Amendments in relation to hearings conducted by the Heritage Council 13 Definitions In section 3(1) of the Principal Act insert the following definitions-- "audio link has the same meaning as in section 42C of the Evidence (Miscellaneous Provisions) Act 1958; audio visual link has the same meaning as in section 42C of the Evidence (Miscellaneous Provisions) Act 1958;". 14 Directions about hearings In section 247(1)(c) of the Principal Act, after "hearings" insert ", including the manner by which hearings are conducted, whether in person or by audio link or audio visual link". 15 Section 248 substituted and new section 248A inserted For section 248 of the Principal Act substitute-- "248 Hearings to be public (1) The Heritage Council must conduct its hearings publicly. 13 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (2) Despite subsection (1), the Heritage Council is not required to conduct a hearing, or part of a hearing, publicly if-- (a) a person making a submission objects to making the submission publicly; and (b) the Heritage Council is satisfied that the submission is of a confidential nature. 248A Hearings may be conducted in person or by audio link or audio visual link (1) A hearing may be conducted-- (a) in person; or (b) by audio link or audio visual link. (2) For the purposes of section 248(1)-- (a) a hearing that is conducted publicly by audio link must be available to be heard by members of the public by audio link-- (i) while the hearing is being held; or (ii) as soon as reasonably practicable afterwards; and (b) a hearing that is conducted publicly by audio visual link must be available to be viewed and heard by members of the public by audio visual link-- (i) while the hearing is being held; or (ii) as soon as reasonably practicable afterwards.". 16 General procedure for hearings After section 249(3) of the Principal Act insert-- "(4) The Heritage Council may require a person or the person's representative to appear and be heard-- 14 Heritage Amendment Act 2023 No. of 2023 Part 2--Amendments in relation to notices, publication and inspection of documents and hearings (a) at a specified time; and (b) in a specified manner, being-- (i) in person at a specified location; or (ii) by audio link or audio visual link.". 17 Persons who may appear before the Heritage Council For section 250(a) of the Principal Act substitute-- "(a) be self-represented; or". 18 Failure to attend hearing In section 251 of the Principal Act, after "a hearing" insert ", including attendance of a hearing by audio link or audio visual link,". 15 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations Part 3--Exclusion determinations 19 Definitions In section 3(1) of the Principal Act insert the following definition-- "exclusion determination--see section 36A;". 20 Certain nominations cannot be accepted (1) After section 28(1) of the Principal Act insert-- "(1A) In addition, subject to subsection (2), the Executive Director cannot accept a nomination under this Division if the Executive Director, in the preceding 5 years, has made an exclusion determination in relation to the place or object or the part of the place or object.". (2) In section 28(2)(a) of the Principal Act, for "subsection (1)(a) or (b)" substitute "subsections (1)(a) or (b) or (1A)". 21 New section 34A inserted After section 34 of the Principal Act insert-- "34A Effect of decision of Executive Director not to make an exclusion determination (1) The Executive Director is taken to have accepted a nomination of a place or object, or part of a place or object, for inclusion in the Heritage Register under this Division if-- (a) the Executive Director has refused to make an exclusion determination in relation to the place or object or part of the place or object, under section 36C(1)(c), and review rights in relation to the decision to refuse are exhausted; or 16 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations (b) the Heritage Council-- (i) has set aside a decision of the Executive Director to make an exclusion determination in relation to the place or object or part of the place or object; and (ii) has substituted a decision to refuse to make the exclusion determination in relation to the place or object or part of the place or object. (2) For the purposes of this Division, the Executive Director is taken to have accepted the nomination under section 27 on whichever of the following days is applicable-- (a) if subsection (1)(a) applies, on the day after the day on which the review rights were exhausted; (b) if subsection (1)(b) applies, on the day after the day on which the Heritage Council set aside the Executive Director's decision. (3) For the purposes of subsection (1)(a), review rights in relation to a decision of the Executive Director are exhausted-- (a) subject to paragraph (b), on the day after the end of the period for making an application for review; or (b) if the decision of the Executive Director is affirmed on review, on the day after the day on which the decision is affirmed.". 17 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations 22 New Division 2A of Part 3 inserted After Division 2 of Part 3 of the Principal Act insert-- "Division 2A--Exclusion determinations 36A Application for an exclusion determination (1) A prescribed person or body, or a person or body included in a prescribed class, may make an application to the Executive Director for a determination under section 36C (an exclusion determination) that a place or object not be included in the Heritage Register. (2) An application for an exclusion determination must-- (a) be made to the Executive Director in the prescribed form; and (b) be prepared by a prescribed person; and (c) include reasons why the place or object should not be included in the Heritage Register, being reasons based on the assessment criteria published by the Heritage Council; and (d) include any other prescribed information; and (e) be accompanied by the prescribed fee (if any). 36B Requests for further information regarding application (1) The Executive Director, by writing, may request that an applicant for an exclusion determination provide further information to assist the consideration of the application. 18 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations (2) The applicant must provide any information requested by the Executive Director-- (a) within 30 days after the request; or (b) within a longer period agreed to by the Executive Director. (3) If the applicant does not provide the requested information within the period referred to in subsection (2), the application is taken to have been withdrawn. 36C Decision on application (1) After considering an application for an exclusion determination in relation to a place or object, the Executive Director must-- (a) make the exclusion determination as specified in the application, if the Executive Director is satisfied that the place or object has no reasonable prospect of inclusion in the Heritage Register; or (b) make an exclusion determination in relation to a part of the place or object, if the Executive Director is satisfied that the part of the place or object has no reasonable prospect of inclusion in the Heritage Register; or (c) refuse to make the exclusion determination, if the Executive Director is not so satisfied as mentioned in paragraph (a) or (b). (2) If the Executive Director makes an exclusion determination in relation to a place or part of a place, the Executive Director may refer the determination to the relevant planning authority or the Minister administering the Planning and Environment Act 1987 to 19 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations consider the inclusion of the place, or the part of the place, as the case requires, in a planning scheme in accordance with the objectives set out in section 4(1)(d) of that Act. 36D Notice of decision to make or refuse to make an exclusion determination (1) This section applies if the Executive Director-- (a) decides to make an exclusion determination in relation to a place or object or part of a place or object; or (b) refuses to make an exclusion determination in relation to a place or object or part of a place or object. (2) Within 14 days of the decision, the Executive Director must give written notice of the decision to the following-- (a) the applicant; (b) the owner of the place or object or the part of the place or object; (c) the responsible authority for the area in which the place or object or the part of the place or object is situated; (d) if the responsible authority for the area in which the place or object or the part of the place or object is situated is not a municipal council, the relevant municipal council. (3) The written notice must include-- (a) reasons for the decision; and 20 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations (b) a statement that specifies-- (i) who has the right to request a review of the decision under section 36E; and (ii) the process that will apply if a review of the decision is not requested, or if a decision is made on a review of the decision. (4) In the case of a decision to make an exclusion determination in relation to a place or object or part of a place or object, within 14 days of the decision, the Executive Director must also-- (a) publish the exclusion determination in a newspaper circulating generally in the area in which the place or object or the part of the place or object is situated; and (b) make the exclusion determination available on the Internet site of the Department for a period of at least 14 days; and (c) include with the exclusion determination, as published or made available, a statement that a person who has a real and substantial interest in the place or object or the part of the place or object has the right to request a review of the decision to make the exclusion determination. 36E Request for review of decision to make or refuse to make an exclusion determination (1) If the Executive Director makes or refuses to make an exclusion determination in relation to a place or object or part of a place or 21 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations object, a person who has a real and substantial interest in the place or object or the part of the place or object, by writing, may request the Heritage Council to review the Executive Director's decision. (2) A request under subsection (1) must-- (a) be made within 28 days after the written notice of the Executive Director's decision is given; and (b) be accompanied by the prescribed fee (if any). (3) If the Executive Director refuses to make an exclusion determination in relation to a place or object or part of a place or object, the applicant for the exclusion determination, by writing, may request the Heritage Council to review the Executive Director's decision. (4) A request under subsection (3) must-- (a) be made within 28 days after the written notice of the Executive Director's decision is given; and (b) be accompanied by the prescribed fee (if any). (5) The Heritage Council, by writing, may request that the Executive Director provide specified information in relation to the Executive Director's decision. (6) The Executive Director must provide any information requested under subsection (5). 36F Decision on review (1) In determining an application under section 36E for review of a decision of the Executive Director to make, or refuse to 22 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations make, an exclusion determination, the Heritage Council may-- (a) affirm the decision under review; or (b) set aside the decision under review and make another decision in substitution for it; or (c) set aside the decision under review and remit the matter for reconsideration by the Executive Director in accordance with any directions or recommendations. (2) The Heritage Council must determine a review of a decision by the Executive Director within 40 days of receiving a request for review. (3) The Heritage Council must give the applicant for review written notice of the outcome of a review within 7 days of the review, including a written statement of reasons for its decision. (4) In addition to the notice under subsection (3), the Heritage Council must give written notice of the outcome of a review to-- (a) the owner of the place or object or the part of the place or object; and (b) the applicant for the exclusion determination concerned (if they are not notified under subsection (3)); and (c) the responsible authority for the area in which the place or object or the part of the place or object is situated and, if the responsible authority is not a municipal council, the relevant municipal council; and 23 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations (d) the Executive Director.". 23 Statement of recommendation (1) For section 40(1)(b) of the Principal Act substitute-- "(b) in the case of a nomination that has been made by a person or body, the nominator of the place or object; and (ba) in the case of a nomination that the Executive Director is taken to have accepted under section 34A(1), the applicant for the exclusion determination concerned; and". (2) In section 40(3)(f) of the Principal Act, before "of sections" insert "or, if the Executive Director is taken to have accepted the nomination under section 34A(1), the applicant for the exclusion determination concerned,". 24 New section 306 inserted--transitional provision At the end of Part 14 of the Principal Act insert-- "306 Exclusion determinations (1) This section applies to a nomination of a place or object or a part of a place or object for inclusion in the Heritage Register if-- (a) the nomination was made before the commencement of Part 3 of the Heritage Amendment Act 2023; and (b) an application is made for an exclusion determination in relation to the place or object, for an exclusion determination that covers all or any of the place or object; and (c) on the day of the application for the exclusion determination (the application day), a recommendation 24 Heritage Amendment Act 2023 No. of 2023 Part 3--Exclusion determinations under section 37 had not been made in relation to the nomination. (2) The nomination of the place or object or the part of the place or object for inclusion in the Heritage Register is taken to be withdrawn, on and from the application day, to the extent that it overlaps with the application for the exclusion determination. (3) In deciding under section 36C whether or not to make an exclusion determination in relation to the place or object, the Executive Director must have regard to any information provided in relation to the nomination of the place or object for inclusion in the Heritage Register.". 25 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments Part 4--General amendments 25 Definitions In section 3(1) of the Principal Act-- (a) insert the following definitions-- "building permit means a building permit issued under the Building Act 1993; business day means a day other than-- (a) a Saturday or a Sunday; or (b) a day appointed under the Public Holidays Act 1993 as a public holiday or public half-holiday; planning permit means a permit issued under the Planning and Environment Act 1987; show cause notice means a notice served under section 154(2); statement of recommendation period means the period beginning on the day on which a statement of recommendation is given under section 40(1) and ending on the day on which either of the following occurs-- (a) a determination is made under section 49 or 52 to not include the place, object or land in the Heritage Register; (b) the place or part of the place, or object or land, is included in the Heritage Register;"; (b) in the definition of Department, for "Environment, Land, Water" substitute "Transport"; 26 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (c) in the definition of relevant survey purpose, in paragraph (a), for "finding" substitute "discovering"; (d) the definition of sea is repealed. 26 Delegation of powers--Heritage Council Section 15(1)(d) of the Principal Act is repealed. 27 Section 27 heading amended In the heading to section 27 of the Principal Act, after "Nominations" insert "of place or object". 28 New sections 27A and 27B inserted After section 27 of the Principal Act insert-- "27A Nominations of objects integral to places (1) A person (including the Executive Director) or body may nominate for inclusion in the Heritage Register an object that is integral to understanding the cultural heritage significance of-- (a) a registered place; or (b) a place that is the subject of a nomination under section 27 which has not been determined. (2) A nomination under subsection (1) may be made-- (a) in respect of an object whether or not the object is located at the place or under the place; or (b) in respect of all archaeological artefacts associated with the place whether or not the number, nature or exact location of the archaeological artefacts is known; or 27 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (c) without the extraction of the object from the place. (3) A nomination under subsection (1) must be made in the prescribed form. 27B Nominations of additional land (1) A person (including the Executive Director) or body may nominate for inclusion in the Heritage Register additional land as part of-- (a) a registered place; or (b) a place that is the subject of a nomination under section 27 which has not been determined. (2) Additional land may be nominated under subsection (1) if-- (a) the State-level cultural heritage significance of the place would be substantially less if the additional land or any part of the additional land which is or has been used in conjunction with the place were developed; or (b) the additional land surrounds the place and-- (i) is important to the protection or conservation of the place; or (ii) contributes to the understanding of the place. (3) A nomination under subsection (1) must be made in the prescribed form. (4) A nomination may be accepted under this section whether or not the additional land is under the same ownership as the place.". 28 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 29 Certain nominations cannot be accepted (1) For section 28(1) of the Principal Act substitute-- "(1) Subject to subsection (2), the Executive Director cannot accept a nomination under this Division if-- (a) the Executive Director, in the preceding 5 years, has refused a nomination in relation to the same or substantially the same place, object or land on the grounds that the nominated place, object or land has no reasonable prospect of inclusion in the Heritage Register; or (b) the Heritage Council, in the preceding 5 years-- (i) has refused to register the place or object following a nomination under section 27 or 27A; or (ii) has removed the place or object from the Heritage Register; or (iii) has refused to include the land following a nomination under section 27B as part of a place in the Heritage Register; or (iv) has amended the Heritage Register to remove the land from a registered place; or (c) the Minister, in the preceding 5 years, has refused to-- (i) register the place or object following a nomination under section 27 or 27A; or 29 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) include the land following a nomination under section 27B as part of a place in the Heritage Register.". (2) In section 28(2) of the Principal Act, for "place or object" (wherever occurring) substitute "place, object or land". 30 Executive Director may refuse nominations in certain circumstances (1) In section 29(1) of the Principal Act-- (a) omit "of a place or object"; (b) for "nominated place or object" substitute "nominated place, object or land". (2) In section 29(2) of the Principal Act, for "nominator of the place or object" substitute "person or body that made the nomination". (3) In section 29(3)(b) of the Principal Act, for "nominator" substitute "person or body that made the nomination". (4) For section 29(4) of the Principal Act substitute-- "(4) In addition to the notice under subsection (2), the Executive Director must give written notice of the refusal of the nomination to-- (a) the owner of the place, object or land; and (b) the responsible authority for the area in which the place, object or land is situated and, if the responsible authority is not a municipal council, the relevant municipal council.". 30 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 31 Requests for review of the Executive Director's refusal of nomination (1) In section 30(1) of the Principal Act, for "The nominator of a place or object" substitute "A person or body". (2) In section 30(5)(c) of the Principal Act omit "subject to subsection (6),". (3) Section 30(6) of the Principal Act is repealed. (4) For section 30(9) of the Principal Act substitute-- "(9) In addition to the notice under subsection (8), the Heritage Council must give written notice of the outcome of a review to-- (a) the owner of the place, object or land; and (b) the responsible authority for the area in which the place, object or land is situated and, if the responsible authority is not a municipal council, the relevant municipal council; and (c) the Executive Director.". 32 Sections 31 and 32 repealed Sections 31 and 32 of the Principal Act are repealed. 33 Requests for further information regarding nominations In section 33 of the Principal Act-- (a) in subsection (1), for "nominating a place or object for inclusion in the Heritage Register" substitute "that made a nomination under this Division"; 31 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) in subsection (2), for "nominating a place or object" substitute "that made the nomination". 34 Notice of nominations In section 34(1) of the Principal Act-- (a) omit "of a place or object"; (b) in paragraph (a), for "nominator of the place or object" substitute "person or body that made the nomination"; (c) in paragraphs (b) and (c), for "place or object" substitute "place, object or land". 35 Deferral of consideration for nomination In section 35 of the Principal Act-- (a) for "place or object" substitute "place, object or land"; (b) for "land or object" substitute "place, object or land". 36 Owner to notify purchaser of nomination and deferral In section 36 of the Principal Act-- (a) in subsection (1)-- (i) for "place or object" substitute "place, object or land"; (ii) for "the place or object" substitute "the place, object or land"; (b) in subsection (2), for "place or object" substitute "place, object or land". 32 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 37 Executive Director recommendations in respect of nominations For section 37 of the Principal Act substitute-- "37 Executive Director recommendations in respect of nominations (1) After considering a nomination under Division 2 and any further information provided under section 33, the Executive Director must recommend to the Heritage Council-- (a) that the place or object should be included in the Heritage Register, and the category or categories in which it should be included; or (b) that the land should be included in the Heritage Register as part of a place; or (c) that part of the place or object should be included in the Heritage Register, and the category or categories in which it should be included; or (d) that part of the land should be included in the Heritage Register as part of a place; or (e) that the place or object should not be included in the Heritage Register; or (f) that the land should not be included in the Heritage Register as part of a place. (2) If the Executive Director makes a recommendation that a place, or part of a place, should not be included in the Heritage Register, the Executive Director may refer the nomination to the relevant planning authority or the Minister administering the Planning and Environment Act 1987 to 33 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments consider the inclusion of the place or part of the place in a planning scheme in accordance with the objectives set out in section 4(1)(d) of that Act.". 38 Executive Director recommendations for exempted works or activities (1) In section 38(1) of the Principal Act, for "place or object" (where twice occurring) substitute "place, object or land". (2) In section 38(2) of the Principal Act, for "place or object" substitute "place, object or land". (3) In section 38(3) of the Principal Act, for "place or object" substitute "place, object or land". 39 Statement of recommendation (1) In section 40(1) of the Principal Act-- (a) for "place or object" (where first occurring) substitute "place, object or land"; (b) in paragraph (a), for "place or object" substitute "place, object or land"; (c) in paragraph (b), for "nominator of the place or object" substitute "person or body that made the nomination"; (d) in paragraph (c), for "place or object" substitute "place, object or land". (2) In section 40(3) of the Principal Act-- (a) in paragraphs (b) and (e), for "place or object" substitute "place, object or land"; (b) in paragraph (f)-- (i) for "and nominator of the place or object" substitute "of the place, object or land and the person or body that made the nomination"; 34 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) for "46 and 49" substitute "46, 46A and 49"; (c) for paragraph (g) substitute-- "(g) a summary of the rights and obligations under this Act that would apply to the owner of the place, object or land that is the subject of the Executive Director's recommendation, if that place, object or land is included in the Heritage Register.". (3) After section 40(3) of the Principal Act insert-- "(3A) For the purposes of subsection (3)(c), a statement of recommendation must also include the following-- (a) for a place or object nominated under section 27, an assessment of the State-level cultural heritage significance of the place or object; (b) for an object nominated under section 27A, an assessment of whether the object is integral to understanding the cultural heritage significance of a registered place or a place nominated under section 27; (c) for land nominated under section 27B-- (i) an assessment of whether the State-level cultural significance of the place would be substantially less if the additional land or any part of the additional land which is or has been used in conjunction with the place were developed; or 35 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) if the additional land surrounds the place, whether it is important to the protection or conservation of the place or contributes to the understanding of the place.". (4) For section 40(4) of the Principal Act substitute-- "(4) In addition, a statement of recommendation must contain the following information if the Executive Director recommends that a place or object should be included in the Register-- (a) for a place or object nominated under section 27, a summary of the State-level cultural heritage significance of the place or object and the category or categories of the Register in which the place or object is to be registered; (b) for an object nominated under section 27A, a summary of how the object is integral to understanding the cultural heritage significance of a registered place or a place nominated under section 27; (c) for land nominated under section 27B-- (i) a summary of how the State-level cultural significance of the place would be substantially less if the additional land or any part of the additional land which is or has been used in conjunction with the place were developed; or 36 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) if the additional land surrounds the place, a summary of how it is important to the protection or conservation of the place or contributes to the understanding of the place; (d) any recommendations made under section 38 in relation to the works or activities with respect to the place, object or land and an invitation for submissions from the owner in relation to those recommendations.". (5) In section 40(5) of the Principal Act, for "object or place" substitute "place, object or land". 40 Notice of recommendation to be published In section 41 of the Principal Act, for "place or object" (where twice occurring) substitute "place, object or land". 41 Section 42 amended (1) In the heading to section 42 of the Principal Act, for "of places and objects" substitute "--to advise of works, permits etc. on foot when statement of recommendation given". (2) In section 42(1) of the Principal Act-- (a) for "place or object" (where first occurring) substitute "place, object or land"; (b) in paragraph (a), for "place or object" substitute "place, object or land"; (c) for paragraph (b) substitute-- "(b) if the place, object or land is a place or additional land, any application for a planning permit or a building permit, or any application for an amendment to a planning permit or a building permit, 37 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments that has been made in relation to the place or additional land but not determined at the time the statement is given; and"; (d) in paragraph (c), for "place or object" substitute "place, object or land". (3) Section 42(3), (4), (5), (6), (7), (8) and (9) of the Principal Act are repealed. 42 New sections 42A to 42D inserted After section 42 of the Principal Act insert-- "42A Obligations of owners before determination or inclusion in the Heritage Register--to advise of permits (1) This section applies if-- (a) an owner of any of the following is given a statement of recommendation-- (i) a place or object nominated under section 27; (ii) an object nominated under section 27A; (iii) land nominated under section 27B; and (b) any of the following occurs within the statement of recommendation period in relation to the place, object or land-- (i) the making of an application for a planning permit or a building permit; (ii) the making of an application for an amendment to a planning permit or a building permit; (iii) the grant of a planning permit or building permit; 38 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (iv) the grant of an amendment to a planning permit or building permit. (2) The owner must advise the Executive Director in writing of-- (a) the making of an application referred to in subsection (1)(b)(i) or (ii), within 10 days of the making of the application; or (b) a grant referred to in subsection (1)(b)(iii) or (iv), within 10 days of the owner becoming aware of the grant. 42B Obligations of owners before determination or inclusion in the Heritage Register--to advise of activities (1) This section applies if-- (a) an owner of a place, object or land is given a statement of recommendation; and (b) within the statement of recommendation period it is proposed that activities that could harm the place, object or land be carried out. (2) The owner, not less than 10 days before carrying out the activities, must advise the Executive Director in writing of the proposal to do so. 42C Obligations of owners before determination or inclusion in the Heritage Register--to advise of proposal to dispose (1) This section applies if-- (a) an owner of a place, object or land is given a statement of recommendation; and 39 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) within the statement of recommendation period a proposal is made to dispose of the whole or any part of the place, object or land. (2) The owner, within 10 days after entering into an agreement, arrangement or understanding for the disposal of the whole or any part of the place, object or land, must advise the Executive Director in writing of the proposal to do so. 42D Obligations of owners before determination or inclusion in the Heritage Register--requirement to give statement to purchaser (1) This section applies if-- (a) an owner of a place, object or land is given a statement of recommendation; and (b) the owner proposes to dispose of the whole or any part of the place, object or land within the statement of recommendation period. (2) Before entering into an agreement, arrangement or understanding to dispose of the whole or any part of the place, object or land during the statement of recommendation period, the owner must give a copy of the statement of recommendation to the person who, under the proposed agreement, arrangement or understanding, is to acquire the place, object or land or part of the place, object or land.". 40 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 43 Owners of places, objects and land must comply with obligations (1) In the heading to section 43 of the Principal Act, for "places and objects" substitute "places, objects and land". (2) In section 43 of the Principal Act, for "place or object to whom section 42 applies must comply with that section." substitute "place, object or land who is subject to an obligation under section 42, 42A, 42B, 42C or 42D must comply with that obligation.". 44 Submissions to the Heritage Council (1) In section 44(1) and (3) of the Principal Act, for "place or object" substitute "place, object or land". (2) For section 44(4) of the Principal Act substitute-- "(4) A submission must relate to-- (a) for a place or object nominated under section 27, whether or not the place or object is of State-level cultural heritage significance; or (b) for an object nominated under section 27A, whether or not the object is integral to understanding the cultural heritage significance of a registered place or a place nominated under section 27; or (c) for land nominated under section 27B-- (i) whether or not the State-level cultural significance of the place would be substantially less if the additional land or any part of the 41 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments additional land which is or has been used in conjunction with the place were developed; or (ii) if the additional land surrounds the place, whether or not it is important to the protection or conservation of the place or contributes to the understanding of the place; or (d) any recommendation under section 37, 38 or 39 in relation to the place, object or land.". 45 Consideration of submissions to the Heritage Council Section 46(2) and (3) of the Principal Act are repealed. 46 New section 46A inserted After section 46 of the Principal Act insert-- "46A Conduct of hearings by Heritage Council in relation to a recommendation (1) The Heritage Council may conduct a hearing in relation to a recommendation under section 37, 38 or 39 in any circumstances that the Heritage Council considers appropriate. (2) The Heritage Council must conduct a hearing if-- (a) a submission made to it under section 44 includes a request for a hearing before the Heritage Council; and 42 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) the submission is made by a person or body with a real or substantial interest in the place, object or land that is the subject of the submission.". 47 Section 48 amended (1) In the heading to section 48 of the Principal Act, for "place or object" substitute "place, object or land". (2) In section 48(1) and (2) of the Principal Act, for "place or object" (where twice occurring) substitute "place, object or land". (3) In section 48(3) of the Principal Act, for "place or object" substitute "place, object or land". 48 Determinations of the Heritage Council (1) In section 49(1) of the Principal Act-- (a) for "place or object" (where first occurring) substitute "place, object or land"; (b) omit "into the submissions"; (c) in paragraph (a), for "the place or part of the place, or object," substitute "the place or object"; (d) after paragraph (a) insert-- "(ab) in the case of a place, determine that-- (i) part of the place is of State-level cultural heritage significance and is to be included in the Heritage Register; and (ii) part of the place is not of State-level cultural heritage significance and is not to be included in the Heritage Register; or 43 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ac) in the case of an object, determine that-- (i) part of the object is of State-level cultural heritage significance and is to be included in the Heritage Register; and (ii) part of the object is not of State-level cultural heritage significance and is not to be included in the Heritage Register; or"; (e) in paragraph (b), for "the place or part of the place, or object," substitute "the place or object"; (f) in paragraph (c)-- (i) after "the place" (where first occurring) insert "or part of the place"; (ii) for subparagraph (i) substitute-- "(i) refer the recommendation and any submissions to the relevant planning authority or the Minister administering the Planning and Environment Act 1987 to consider the inclusion of the place or part of the place in a planning scheme in accordance with the objectives set out in section 4(1)(d) of that Act; or"; (iii) in subparagraph (ii), after "the place" insert "or part of the place"; (g) for paragraph (d) substitute-- "(ca) in the case of a recommendation in respect of an object nominated under section 27A, determine that the object, 44 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments or part of the object, is to be included in the Heritage Register if it is integral to understanding the cultural heritage significance of a registered place or a place the Heritage Council has determined to be included in the Heritage Register; or (d) in the case of a recommendation in respect of additional land nominated under section 27B, determine that the additional land, or any part of the additional land, is to be included in the Heritage Register if-- (i) the State-level cultural heritage significance of the place, or part of the place, would be substantially less if the additional land or any part of the additional land which is or has been used in conjunction with the place were developed; or (ii) the additional land or any part of the additional land surrounding the place, or part of the place, is important to the protection or conservation of the place or contributes to the understanding of the place."; (h) paragraph (e) is repealed. (2) In section 49(2)(b) of the Principal Act omit "into the written submissions". 45 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (3) For section 49(3) of the Principal Act substitute-- "(3) A determination made under subsection (1)(a), (ab), (ac), (ca) or (d)-- (a) may include categories of works or activities which may be carried out in relation to a place, object or land, or part of a place, object or land, for which a permit under this Act is not required, if the Heritage Council considers that the works or activities would not harm the cultural heritage significance of the place, object or land; and (b) must include a statement of the reasons for the making of the determination.". (4) For section 49(4) of the Principal Act substitute-- "(4) If the Heritage Council determines to include a place, or part of a place, in the Heritage Register, the Heritage Council may also determine to include land that is not the subject of a nomination under section 27B in the Heritage Register as part of the place if-- (a) the land is ancillary to the place; and (b) the person who owns the place, or part of the place-- (i) is the owner of the land; and (ii) consents to its inclusion.". 46 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 49 New section 49A inserted After section 49 of the Principal Act insert-- "49A Notice to the owner or government asset manager (1) The Heritage Council must give written notice of any determination of the Heritage Council under section 49 in relation to a place, object or land, and of any works or activities which the Heritage Council has determined under section 49(3) may be carried out in relation to a place, object or land without a permit under Part 5, to-- (a) the owner or government asset manager of the place, object or land; and (b) the Executive Director. (2) A notice under subsection (1) must be given within 7 days after the day on which the determination is made.". 50 Minister's call-in powers In section 50 of the Principal Act-- (a) in subsection (1), for "section 39" substitute "section 49"; (b) for subsection (2)(b) substitute-- "(b) must not-- (i) consider, or continue to consider, the recommendation; or (ii) make a determination.". 47 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 51 New section 52A inserted After section 52 of the Principal Act insert-- "52A Notice to the owner or government asset manager (1) The Minister must give written notice of any determination of the Minister under section 52, and of any works or activities which the Minister has determined under section 52 may be carried out in relation to a place, object or land without a permit under Part 5, to-- (a) the owner or government asset manager of the place, object or land; and (b) the Executive Director. (2) A notice under subsection (1) must be given within 7 days after the day on which the determination is made.". 52 Notice of registration (1) In section 53(1), (2) and (4) of the Principal Act, for "place or object" substitute "place, object or additional land". (2) For section 53(3) of the Principal Act substitute-- "(3) The notice must specify-- (a) the category or categories of the Heritage Register, or the record of the Heritage Register, to which the place or object is included; or (b) in the case of additional land, the place to which the land forms part of.". 53 Section 55 repealed Section 55 of the Principal Act is repealed. 48 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 54 Heritage certificates For section 58(3)(d) of the Principal Act substitute-- "(d) whether or not a nomination has been made for inclusion of the place or object in the Heritage Register and, if a nomination has been made, whether or not the following things have occurred in respect of the nomination-- (i) the Executive Director has not accepted the nomination under section 28(1)(a), (b) or (c) or (1A); (ii) the Executive Director has refused the nomination under section 29 and the date on which the refusal occurred; (iii) the Executive Director has given written notice of accepting the nomination under section 34; (iv) the nomination has been withdrawn; (v) at the date the certificate is issued the nomination has not been determined; (da) whether or not an application for exclusion has been made under section 36A and, if an application has been made, whether or not the following things have occurred in respect of the application-- (i) the Executive Director has made the exclusion determination and the date on which the determination was made; (ii) the Executive Director has refused to make the exclusion determination and the date on which the refusal occurred; 49 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (iii) the Heritage Council has been requested to review the Executive Director's decision to make, or refuse to make, an exclusion determination; (iv) the Heritage Council has affirmed or set aside the Executive Director's decision to make, or refuse to make, an exclusion determination;". 55 Offence to remove registered shipwrecks, historic shipwrecks, registered shipwreck artefacts and historic shipwreck artefacts from the State (1) For section 73(1) of the Principal Act substitute-- "(1) A person must not remove any registered shipwreck, historic shipwreck, registered shipwreck artefact or historic shipwreck artefact from the State otherwise than in accordance with-- (a) an action required under section 72; or (b) any terms and conditions of a permit issued by the Executive Director under section 77. Penalty: In the case of a natural person, 240 penalty units; In the case of a body corporate, 480 penalty units.". (2) In section 73(2) of the Principal Act, after "accordance with" insert "an action required under section 72 or". 56 Discovery of shipwrecks and shipwreck artefacts to be notified (1) In section 80(1) of the Principal Act, for "finds" substitute "discovers". 50 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (2) In section 80(4)(a) and (5) of the Principal Act, for "found" substitute "discovered". 57 Offences in relation to knowingly or recklessly performing certain activities In section 87(4) of the Principal Act-- (a) in paragraph (a), after "under" insert "Part 4 or"; (b) after paragraph (c) insert-- "(ca) that are specified in a show cause notice and which are carried out consistently with the show cause notice; or (cb) carried out in accordance with a repair order; or (cc) carried out in accordance with a rectification order; or". 58 Offences in relation to negligently performing certain activities In section 88(4) of the Principal Act-- (a) in paragraph (a), after "under" insert "Part 4 or"; (b) after paragraph (c) insert-- "(ca) that are specified in a show cause notice and which are carried out consistently with the show cause notice; or (cb) carried out in accordance with a repair order; or (cc) carried out in accordance with a rectification order; or". 51 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 59 Offences in relation to performing certain activities In section 89(4) of the Principal Act-- (a) in paragraph (a), after "under" insert "Part 4 or"; (b) after paragraph (c) insert-- "(ca) that are specified in a show cause notice and which are carried out consistently with the show cause notice; or (cb) carried out in accordance with a repair order; or (cc) carried out in accordance with a rectification order; or". 60 Exemption for the purposes of religious services or rites (1) In section 90(1) of the Principal Act, for "any alterations" substitute "works or activities in relation". (2) For section 90(3) of the Principal Act substitute-- "(3) The owner of the place or object must give notice of the proposed works or activities to the Executive Director at least 20 business days before the works or activities are to commence.". (3) In section 90(4)(b) of the Principal Act, for "the alteration is" substitute "the proposed works or activities are". (4) After section 90(4) of the Principal Act insert-- "(5) If the Executive Director is not satisfied that the proposed works or activities are for the purposes of religious services or rites, the 52 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments Executive Director may notify the owner of the place or object that-- (a) the exemption under this section does not apply to the proposed works or activities; and (b) a permit for the proposed works or activities is required. (6) A notice under subsection (5) must be given within 15 business days after the Executive Director receives a notice under subsection (3).". 61 New section 90A inserted After section 90 of the Principal Act insert-- "90A Requests for additional information in relation to exemption for the purposes of religious services or rites (1) The Executive Director may request an owner to provide any additional information that the Executive Director considers necessary to determine if the proposed works or activities are for the purposes of religious services or rites. (2) A request under subsection (1) must be made in writing and include the following information-- (a) a description of the information to be provided; (b) the date by which the information must be provided, being a date which is at least 30 days after the request; 53 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (c) a statement that the notice given under section 90(3) will cease to have effect if the information is not provided by that date. (3) The owner may request the Executive Director to grant an extension of time to provide the requested information. (4) The Executive Director must-- (a) agree or refuse to agree to a request under subsection (3); and (b) give written notice to the owner of the Executive Director's decision. (5) A notice under subsection (4)(b) must state-- (a) whether the extension of time is agreed to or refused; and (b) if the extension of time is agreed to, the date by which the information must be provided; and (c) if the extension of time is refused and the date specified in accordance with subsection (2)(b) has passed or is due to pass within 10 business days, the date by which the information must be provided, being a date which is at least 10 business days after the notice. (6) The Executive Director must notify the owner within 5 business days after agreeing or refusing to agree to the extension. (7) The period within which the Executive Director must give notice under section 90(6) stops to run on the day when the Executive Director requests additional information under this section and starts to 54 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments run when that information is provided to the Executive Director.". 62 Section 91 substituted For section 91 of the Principal Act substitute-- "91 Exemption for certain subdivisions or consolidations A person may cause land to be subdivided or consolidated without a permit issued under Part 5 if-- (a) the subdivision or consolidation is in accordance with a planning permit; and (b) the application for the planning permit was referred to the Executive Director as a determining referral authority under the Planning and Environment Act 1987.". 63 Other exemptions from permits (1) Section 92(2) of the Principal Act is repealed. (2) After section 92(3) of the Principal Act insert-- "(3A) The Executive Director must give written notice to the owner of a registered place or registered object affected by a determination made-- (a) under subsection (1), without delay; or (b) under subsection (3), within 5 business days.". (3) In section 92(4) of the Principal Act, for "makes a determination" substitute "makes or amends a determination". 55 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (4) After section 92(6) of the Principal Act insert-- "(6A) The Executive Director may amend or revoke a determination made under subsection (3) if, at the time of the amendment or revocation, the Executive Director considers the works or activities may harm the cultural heritage significance of the registered place or registered object.". (5) For section 92(7) of the Principal Act substitute-- "(7) The Executive Director must give written notice to the owner of a registered place or registered object affected by an amendment or revocation of a determination-- (a) under subsection (6), without delay; or (b) under subsection (6A), within 5 business days.". 64 Permit applications After section 93(3) of the Principal Act insert-- "(3A) Despite subsection (3), if the works or activities for which a permit is sought relate to only part of a registered place or registered object, the applicant is only required to obtain the written consent of the owner or government asset manager of that part of the registered place or registered object.". 65 Section 96 amended (1) For the heading to section 96 of the Principal Act substitute-- "Amending permit applications--request of applicant". (2) In section 96(3)(c) of the Principal Act, for "land" substitute "registered place or registered object". 56 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (3) After section 96(3) of the Principal Act insert-- "(3A) Despite subsection (3)(c), if the works or activities for which the amendment to the permit application is sought relate to only part of a registered place or registered object, the applicant is only required to obtain the written consent of the owner or government asset manager of that part of the registered place or registered object.". (4) In section 96(4) of the Principal Act, after "Executive Director" (where first occurring) insert ", within 20 business days after receiving a request under subsection (1),". (5) After section 96(4) of the Principal Act insert-- "(4A) The Executive Director must notify the applicant within 5 business days after a decision under subsection (4) to agree to the request or to refuse the request.". (6) Section 96(5) of the Principal Act is repealed. (7) After section 96(6) of the Principal Act insert-- "(7) The period within which the Executive Director must agree to the request or refuse the request to amend the permit application under subsection (4) stops to run on the day when a direction is given to the applicant under subsection (6) and starts to run when information regarding compliance with that direction is provided to the Executive Director.". 57 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 66 New sections 96A and 96B inserted After section 96 of the Principal Act insert-- "96A Amending permit applications--Executive Director (1) The Executive Director may amend a permit application if-- (a) the Executive Director considers that the amendment would assist with the protection or conservation of the cultural heritage significance of the registered place or registered object to which the application relates; and (b) the applicant consents in writing to the amendment; and (c) if the owner or government asset manager of the registered place or registered object in respect of which the permit application relates is not the applicant, the owner or government asset manager consents in writing to the amendment. (2) The Executive Director may amend a permit application under subsection (1) before or after any notice of the application is publicly displayed under section 94. (3) If the Executive Director amends a permit application under subsection (1) after notice of the application is publicly displayed under section 94, the Executive Director-- (a) must notify any persons who lodged a written submission in relation to the permit application under section 95(1) of the amendment to the permit application; and 58 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) despite section 94, may give directions to the applicant in relation to the publication or notification of the amended permit application. 96B Amended permit application to be given to responsible authority or municipal council The Executive Director must as soon as practicable give a copy of a permit application amended under section 96 or 96A to the responsible authority for the area in which the registered place or registered object is situated and, if the responsible authority is not a municipal council, the relevant municipal council.". 67 Time for determining permit applications (1) In section 97(1) of the Principal Act, for "60 days" substitute "45 business days". (2) In section 97(2) of the Principal Act, for "60 days" (where twice occurring) substitute "45 business days". (3) In section 97(3) of the Principal Act, for "60 days" substitute "45 business days". (4) After section 97(3) of the Principal Act insert-- "(4) If the Executive Director obtains an extension under subsection (2), the Executive Director must notify the applicant within 5 business days of the extension.". 68 Requests for additional information in relation to permit applications In section 98 of the Principal Act-- (a) in subsection (2)(a), before "the information" insert "a description of"; 59 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) in subsection (5)(c)-- (i) for "in 14 days" (where first occurring) substitute "within 10 business days"; (ii) for "14 days" (where second occurring) substitute "10 business days"; (c) in subsection (6), for "7 days" substitute "5 business days". 69 Stopping of time for permit applications (1) After section 99(b) of the Principal Act insert-- "(ba) stops to run on the day when a request to amend a permit application is made under section 96(1) and starts to run when a decision is made by the Executive Director in relation to the request under section 96(4); or". (2) In section 99(c) of the Principal Act, for "section 96(6)" substitute "section 96A(3)(b)". 70 Submissions by responsible authorities and municipal councils in relation to permit applications (1) In section 100(1) of the Principal Act, for "14 days" substitute "10 business days". (2) In section 100(3)(a) of the Principal Act, for "14 days" substitute "20 business days". (3) After section 100(3) of the Principal Act insert-- "(4) Despite subsection (3), the Executive Director may accept a submission that has not been lodged within the time required under that subsection.". 71 Determination of permit applications (1) In section 101(1) of the Principal Act-- (a) after "may" insert "determine"; 60 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) for paragraph (a) substitute-- "(a) to approve the application or part of the application, subject to any terms and conditions the Executive Director considers fit; or"; (c) in paragraph (b), for "refuse" substitute "to refuse". (2) In section 101(2) and (3) of the Principal Act, for "determining whether to approve an application for a permit" substitute "making a determination under subsection (1)". 72 New section 101A inserted After section 101 of the Principal Act insert-- "101A Approval of permit applications subject to security (1) In approving an application under section 101(1)(a), the Executive Director may impose a term or condition on the permit that requires a security to be given to the Heritage Council to ensure-- (a) the satisfactory completion of the works or activities for which the permit is issued; or (b) compliance with another condition imposed on the permit. (2) In determining the form and content of a security referred to in subsection (1), the Executive Director must have regard to-- (a) in the case of a security for the purposes of subsection (1)(a), the nature and extent of the works or activities; or 61 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) in the case of a security for the purposes of subsection (1)(b), the nature of the other condition to be complied with. (3) The Heritage Council, for the following purposes, may pay out of the Heritage Fund a security received under subsection (1)-- (a) in accordance with the terms and conditions of the permit, for the satisfactory completion of the works or activities in respect of which the security was given; (b) making the security available to the Executive Director under section 159(2); (c) in accordance with the terms and conditions of the permit, for compliance with the other condition imposed on the permit in respect of which the security was given. (4) The Heritage Council must return a security, or the remainder of a security if there has been a partial pay out of the security under subsection (3), to a person if-- (a) in the case of a security for the purposes of subsection (1)(a), the works or activities are completed; or (b) in the case of a security for the purposes of subsection (1)(b), the condition is complied with.". 62 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 73 Section 102 substituted and new sections 102A and 102B inserted For section 102 of the Principal Act substitute-- "102 Issue of permits The Executive Director, within 5 business days of making a determination under section 101(1)(a) to approve an application or part of an application, must issue a permit to the applicant. 102A Notice of refusal (1) The Executive Director, within 5 business days of making a determination under section 101(1)(a) to approve part of an application, must give a written notice of the refusal of any part of the application not approved to the applicant. (2) The Executive Director, within 5 business days of making a determination under section 101(1)(b) to refuse an application, must give a written notice of the refusal to the applicant. (3) A notice of refusal must include-- (a) a statement of reasons for the refusal of the application or part of the application; and (b) a statement of the applicant's rights of review under this Part. 102B Notice of permit application determination The Executive Director must notify the following persons of the outcome of a permit application determination under section 101(1) within 5 business days-- 63 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (a) any person who made a submission in relation to the permit application; and (b) the responsible authority for the area in which the registered place or registered object in respect of which the permit was applied for is situated and, if the responsible authority is not a municipal council, the relevant municipal council.". 74 Section 103 repealed Section 103 of the Principal Act is repealed. 75 Noncompliance with permit In section 104 of the Principal Act, for "section 102" substitute "this Part". 76 Amendment of permits (1) After section 105(3) of the Principal Act insert-- "(3A) Despite subsection (3), if the works or activities for which the amendment to the permit is sought relate to only part of the registered place or registered object, the applicant is only required to obtain the written consent of the owner or government asset manager of that part of the registered place or registered object.". (2) In section 105(4) of the Principal Act, after "must notify" insert "within 5 business days". (3) For section 105(5) of the Principal Act substitute-- "(5) Subject to subsection (5A), the Executive Director must agree to a request to amend a permit in whole or in part, or refuse the request, within 20 business days after receiving the request. 64 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (5A) The period within which the Executive Director must agree to a request to amend a permit, or refuse the request, under subsection (5) stops to run on the day when the Executive Director makes a request for additional information under section 105A(1) and starts to run when the additional information is provided to the Executive Director.". (4) After section 105(7) of the Principal Act insert-- "(8) If the Executive Director agrees to a request to amend a permit, or refuses the request, the Executive Director must notify within 5 business days-- (a) the permit holder; and (b) if the permit holder is not the owner or government asset manager, the owner or government asset manager of the registered place or registered object to which the permit relates; and (c) any person who made a submission in relation to the permit application; and (d) the responsible authority for the area in which the registered place or registered object in respect of which the permit is issued is situated and, if the responsible authority is not a municipal council, the relevant municipal council. (9) Despite subsection (8)(b), if the permit relates to only part of the registered place or registered object, the Executive Director is only required to notify the owner or government asset manager of that part of the registered place or registered object. 65 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (10) If the Executive Director agrees to a request to amend a permit, the Executive Director must issue the amended permit to the permit holder within 5 business days.". 77 New sections 105A and 105B inserted After section 105 of the Principal Act insert-- "105A Requests for additional information in relation to amendment of permits (1) The Executive Director may request a permit holder to provide any additional information that the Executive Director considers necessary to assist with a decision under section 105(5). (2) A request under subsection (1) must be made in writing and include the following information-- (a) a description of the information to be provided; (b) the date by which the information must be provided, being a date which is at least 20 days after the request; (c) a statement that the request to amend the permit will lapse if the information is not provided by that date. (3) The permit holder may request the Executive Director to grant an extension of time to provide the requested information. (4) The Executive Director must-- (a) agree or refuse to agree to a request under subsection (3); and (b) give written notice to the applicant of the Executive Director's decision. 66 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (5) A notice under subsection (4)(b) must state-- (a) whether the extension of time is agreed to or refused; and (b) if the extension of time is agreed to, the date by which the information must be provided; and (c) if the extension of time is refused and the date specified in accordance with subsection (2)(b) has passed or is due to pass within 10 business days, the date by which the information must be provided, being a date which is at least 10 business days after the notice. (6) The Executive Director must notify the applicant within 5 business days after agreeing or refusing to agree to the extension. 105B Minor amendment of permits (1) The holder of a permit issued under this Part may request the Executive Director to make a minor amendment to the permit. (2) A request under subsection (1) must be made in the prescribed form. (3) If a permit holder is not the owner of the registered place or registered object in respect of which the permit is issued, the permit holder must obtain the written consent of the owner before making a request for a minor amendment to the permit. (4) Despite subsection (3), if the works or activities for which the minor amendment to the permit is sought relate to only part of the registered place or registered object, the permit holder is only required to obtain the 67 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments written consent of the owner or government asset manager of that part of the registered place or registered object. (5) The Executive Director must agree to a request to make a minor amendment to the permit in whole or in part, or refuse the request, within 20 business days after receiving the request. (6) The Executive Director must refuse a request under subsection (5) if the Executive Director considers that the requested amendment-- (a) is not minor in the context of the works or activities authorised by the permit and requires a request for the amendment of the permit under section 105; or (b) is so substantial that a new permit application is necessary. (7) The Executive Director may refuse a request if the Executive Director considers that the requested amendment, if agreed to, may result in harm to the cultural heritage significance of the registered place or registered object in relation to which the permit was issued. (8) The Executive Director, within 5 business days after making a decision under subsection (5), must notify-- (a) the permit holder; and (b) if the permit holder is not the owner or government asset manager, the owner or government asset manager of the registered place or registered object to which the permit relates; and 68 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (c) the responsible authority for the area in which the registered place or registered object in respect of which the permit is issued or situated and, if the responsible authority is not a municipal council, the relevant municipal council. (9) Despite subsection (8)(b), if the permit relates to only part of the registered place or registered object, the Executive Director is only required to notify the owner or government asset manager of that part of the registered place or registered object. (10) If the Executive Director agrees to a request to make a minor amendment to a permit, the Executive Director must issue the amended permit to the permit holder within 5 business days.". 78 Review of the Executive Director's determinations relating to permits (1) In section 106(1) of the Principal Act-- (a) in paragraph (a), for "to issue" substitute "for"; (b) in paragraph (b), for "an application to issue a permit for some of the proposed works or activities" substitute "any part of an application for a permit". (2) After section 106(2) of the Principal Act insert-- "(2A) Despite subsection (2), if the permit applies to only part of the registered place or registered object, only the applicant, or the owner or government asset manager of that part of the place or object, may make a written request under that subsection.". 69 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (3) Before section 106(5)(a) of the Principal Act insert-- "(aa) the Executive Director; and (aab) the applicant, if the person requesting the review is not the applicant; and". (4) After section 106(5) of the Principal Act insert-- "(6) Despite subsection (5)(a), if the review relates to only part of a registered place or registered object, the Heritage Council is only required to notify the owner or government asset manager of that part of the place or object, if the person requesting the review is not that owner or government asset manager.". 79 Determination of reviews by the Heritage Council (1) In section 108(4)(a) and (b) of the Principal Act, after "applicant" insert "for review". (2) After section 108(4) of the Principal Act insert-- "(4A) The Executive Director may appear, be heard or be represented at any hearing into the review of the Executive Director's determination relating to a permit.". (3) In section 108(8) of the Principal Act, after "section 101(2)" insert "and may consider the matters set out in section 101(3)". (4) For section 108(9) of the Principal Act substitute-- "(9) The Heritage Council, within 5 business days after making a determination under subsection (7), must give written notice of the determination to-- (a) the applicant for review; and 70 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) if the applicant for review is not the applicant for the permit, the permit applicant; and (c) if the applicant for review or the permit applicant is not the owner or government asset manager, the owner or government asset manager of the registered place or registered object; and (d) the responsible authority for the area in which the registered place or registered object is situated and, if the responsible authority is not a municipal council, the relevant municipal council; and (e) the Executive Director; and (f) any other person who was a party to a hearing. (10) If the Heritage Council has made a determination that requires a permit or amended permit to be issued, the Executive Director must issue the permit to the permit applicant within 5 business days after receiving notification of the Heritage Council's determination.". 80 Minister's power to call in or refer matter to VCAT In section 109(3) and (4) of the Principal Act, after "section 101(2)" insert "and may consider the matters set out in section 101(3)". 81 New section 112A inserted After section 112 of the Principal Act insert-- "112A Issue of permit following VCAT's decision The Executive Director must, within 5 business days after an order is made by VCAT under section 111 that requires a 71 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments permit or amended permit to be issued, issue the permit to the applicant.". 82 Exercise of call-in power by the Minister For section 113(1)(a) of the Principal Act substitute-- "(a) may require the Heritage Council to give the following persons an opportunity to be heard by the Heritage Council and to make submissions to the Heritage Council-- (i) the applicant for review; (ii) if the applicant for review is not the applicant for the permit, the permit applicant; (iii) the Executive Director; (iv) the responsible authority for the area in which the registered place or registered object is situated and, if the responsible authority is not a municipal council, the relevant municipal council; (v) the National Trust, if the National Trust has previously lodged a written submission with the Executive Director in relation to the permit application; and". 83 Powers of the Minister on referral In section 114(2) of the Principal Act-- (a) for "7 days" substitute "5 business days"; (b) for paragraph (a) substitute-- "(a) if the Minister has made a determination that requires a permit or amended permit to be issued, issue the permit to the applicant; and". 72 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 84 New section 118A inserted After section 118 of the Principal Act insert-- "118A Determination by the Executive Director as to archaeological value (1) The Executive Director, within 20 business days after being provided with a site card under section 127, must-- (a) determine to record the archaeological site described in the card in the Heritage Inventory; or (b) determine that the archaeological site has low archaeological value. (2) In making a determination under subsection (1), the Executive Director may request from the person who provided the site card any additional information that the Executive Director considers necessary to assist the Executive Director in making the determination. (3) A request under subsection (2) must be made in writing and include the following information-- (a) a description of the information to be provided; (b) the date by which the information must be provided, being a date which is at least 20 days after the request. (4) The person who provided the site card may request the Executive Director to grant an extension of time to provide the requested information. (5) The Executive Director must-- (a) agree or refuse to agree to a request under subsection (4); and 73 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) give written notice to the person of the Executive Director's decision. (6) A notice under subsection (5)(b) must state-- (a) whether the extension of time is agreed to or refused; and (b) if the extension of time is agreed to, the date by which the information must be provided; and (c) if the extension of time is refused and the date specified in accordance with subsection (3)(b) has passed or is due to pass within 10 business days, the date by which the information must be provided, being a date which is at least 10 business days after the notice. (7) The Executive Director must notify the applicant within 5 business days after agreeing or refusing to agree to the extension. (8) The period within which the Executive Director must make a determination under subsection (1)-- (a) stops to run on the day when a request under subsection (2) is made by the Executive Director; and (b) starts to run when the information is provided to the Executive Director. (9) The Executive Director, within 5 business days of making a determination under subsection (1), must notify the following of the determination-- (a) the person who provided the site card; 74 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) any person who has made an application under section 124 in respect of the site; (c) the owner or government asset manager of the land constituting the site; (d) the responsible authority for the area in which the site is situated, and if the responsible authority is not a municipal council, the relevant municipal council.". 85 Section 119 substituted For section 119 of the Principal Act substitute-- "119 Removing sites from the Heritage Inventory The Heritage Council may remove a site from the Heritage Inventory-- (a) if the Executive Director determines that the site has low archaeological value; or (b) if the Executive Director determines that-- (i) inclusion of the site in the Heritage Register as a registered place is sufficient to protect and conserve the site; and (ii) inclusion of the site in the Heritage Inventory is no longer necessary; or (c) as part of the amalgamation of 2 or more sites in the Heritage Inventory; or (d) if the site is not an archaeological site.". 75 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 86 Section 120 amended (1) In the heading to section 120 of the Principal Act, after "Notice of" insert "recording of sites in or". (2) In section 120 of the Principal Act-- (a) after "notice of the" insert "recording of a site in or the"; (b) in paragraph (a), after "owner" insert "or government asset manager". 87 Section 123 substituted For section 123 of the Principal Act substitute-- "123 Offences in relation to certain archaeological sites (1) A person commits an offence if-- (a) the person knowingly or negligently-- (i) defaces, damages or otherwise interferes with an archaeological site; or (ii) carries out an act that is likely to endanger an archaeological site; and (b) the person is not-- (i) permitted to do so by a determination under section 123A; or (ii) authorised to do so by a consent issued under this Part; and (c) the archaeological site-- (i) is recorded in the Heritage Inventory; or 76 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) is not recorded in the Heritage Inventory and is not-- (A) a site which is determined by the Executive Director to have low archaeological value; or (B) a site which has been removed from the Heritage Inventory under section 119; and (d) the archaeological site is not a registered archaeological place or a registered archaeological artefact. (2) A person commits an offence if-- (a) the person knowingly-- (i) uncovers or exposes land for the purpose of uncovering or discovering an archaeological site; or (ii) disturbs or excavates land for the purpose of uncovering or discovering an archaeological site; and (b) the person is not-- (i) permitted to do so by a determination under section 123A; or (ii) authorised to do so by a consent issued under this Part; and (c) the archaeological site-- (i) is recorded in the Heritage Inventory; or 77 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (ii) is not recorded in the Heritage Inventory and is not-- (A) a site which is determined by the Executive Director to have low archaeological value; or (B) a site which has been removed from the Heritage Inventory under section 119; and (d) the site is not a registered archaeological place or a registered archaeological artefact. (3) A person who commits an offence against subsection (1) or (2) is liable to-- (a) in the case of a natural person, 600 penalty units or imprisonment for 12 months or both; (b) in the case of a body corporate, 1200 penalty units. Note Offences apply in relation to registered archaeological places and registered archaeological artefacts under sections 87, 88 and 89.". 88 New section 123A inserted After section 123 of the Principal Act insert-- "123A Exemption from requirement to obtain a consent (1) The Executive Director, on the application of a person specified in subsection (2), may determine that a consent under this Part is not required for particular works or activities in relation to-- 78 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (a) a site recorded in the Heritage Inventory; or (b) an archaeological artefact. (2) For the purposes of subsection (1), the following persons are specified-- (a) the owner or government asset manager of the site or archaeological artefact; (b) a person who has the consent of the owner or government asset manager of the site or archaeological artefact to make an application under subsection (1). (3) An application under subsection (1) must be made in the prescribed form. (4) Despite subsection (2)(b), if the works or activities for which the consent is sought relate to only part of the site or archaeological artefact, the applicant is only required to include the consent of the owner or government asset manager of that part of the site or archaeological artefact. (5) If the Executive Director makes a determination under subsection (1), the particular works or activities may be carried out in relation to the site or artefact. (6) The Executive Director must not make a determination under subsection (1) in relation to any works or activities unless the Executive Director considers that any damage or disturbance to the site or artefact would be negligible.". 79 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 89 Executive Director may issue consents (1) For section 124(1) of the Principal Act substitute-- "(1) Subject to this section, a person may apply to the Executive Director for a consent authorising the person-- (a) to excavate or uncover a site-- (i) recorded in the Heritage Inventory; or (ii) reported to the Executive Director in accordance with section 127(2); or (b) to damage or disturb a site-- (i) recorded in the Heritage Inventory; or (ii) reported to the Executive Director in accordance with section 127(2); or (c) to damage or disturb an archaeological artefact, including for the purposes of study, conservation or exhibition; or (d) to possess an archaeological artefact for the purposes of sale; or (e) to buy or sell an archaeological artefact.". (2) For section 124(2)(c) of the Principal Act substitute-- "(c) if the applicant is not the owner or government asset manager of the site or archaeological artefact, include the consent of the owner or government asset manager of the site or archaeological artefact.". 80 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (3) After section 124(2) of the Principal Act insert-- "(2A) Despite subsection (2)(c), if the works or activities for which the consent is sought relate to only part of the site or archaeological artefact, the applicant is only required to include the consent of the owner or government asset manager of that part of the site or archaeological artefact.". (4) For section 124(4) of the Principal Act substitute-- "(4) After considering an application under subsection (1), the Executive Director, within 20 business days after receiving the application, must-- (a) approve the application and, within 5 business days, issue the consent; or (b) approve the application in part and, within 5 business days, issue the consent for some of the proposed works or activities specified in the application; or (c) refuse the application.". (5) After section 124(4) of the Principal Act insert-- "(4A) The Heritage Council, on the application of the Executive Director before the end of the period of 20 business days specified in subsection (4), may extend that period by a further period of up to 20 business days. (4B) In the case of an application to do a thing referred to in subsection (1)(a)(ii) or (b)(ii), if the Executive Director considers the matter is urgent, the Executive Director may consider the application but must not determine it until the Executive Director-- 81 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (a) records the site in the Heritage Inventory under section 118(1)(a); or (b) determines that the site has low archaeological value.". (6) In section 124(7)(b) of the Principal Act, for "found" substitute "discovered". 90 New sections 124A, 124B and 124C inserted After section 124 of the Principal Act insert-- "124A Amendment of consents (1) Subject to this section, a person who is authorised to carry out works or activities under a consent issued under section 124 may apply to the Executive Director for an amendment of the consent. (2) An application under subsection (1) must-- (a) be in the prescribed form; and (b) be accompanied by the prescribed fee (if any); and (c) if the applicant is not the owner or government asset manager of the site or archaeological artefact, include the consent of the owner or government asset manager of the site or archaeological artefact. (3) Despite subsection (2)(c), if the works or activities for which the amendment to the consent is sought relate to only part of the site or archaeological artefact, the applicant is only required to include the consent of the owner or government asset manager of that part of the site or archaeological artefact. (4) In determining whether to amend a consent under this section, the Executive Director must consider-- 82 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (a) any archaeological, historical or other research; and (b) the potential of the site or archaeological artefact to contribute to such knowledge. (5) After considering an application to amend a consent, the Executive Director, within 20 business days after receiving the application, must-- (a) approve the application and, within 5 business days, issue the amended consent; or (b) approve the application in part and, within 5 business days, issue the amended consent; or (c) refuse the application. (6) The Executive Director must refuse the application if the Executive Director considers that the requested amendment is so substantial that a new consent is necessary. (7) If the Executive Director determines to refuse the application, the Executive Director must give the applicant written notice of the refusal within 5 business days after making the determination. (8) A notice under subsection (7) must include a statement of reasons for the refusal. (9) An amended consent under this section may be issued subject to the following terms and conditions-- (a) that the activity authorised by the consent be supervised by a person with appropriate professional qualifications 83 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments and experience as specified in the consent; (b) that archaeological artefacts discovered in the course of the activity authorised by the consent are to be conserved and curated in a way specified in the consent; (c) any other terms and conditions that the Executive Director considers fit. 124B Requests for additional information in relation to consent applications (1) The Executive Director may request an applicant to provide any additional information that the Executive Director considers necessary to assist the determination of an application under section 124 or 124A. (2) A request under subsection (1) must be made in writing and include the following information-- (a) a description of the information to be provided; (b) the date by which the information must be provided, being a date which is at least 30 days after the request; (c) a statement that the application will lapse if the information is not provided by that date. (3) The applicant may request the Executive Director to grant an extension of time to provide the requested information. (4) The Executive Director must-- (a) agree or refuse to agree to a request under subsection (3); and 84 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) give written notice to the applicant of the Executive Director's decision. (5) A notice under subsection (4)(b) must state-- (a) whether the extension of time is agreed to or refused; and (b) if the extension of time is agreed to, the date by which the information must be provided; and (c) if the extension of time is refused and the date specified in accordance with subsection (2)(b) has passed or is due to pass within 10 business days, the date by which the information must be provided, being a date which is at least 10 business days after the notice. (6) The Executive Director must notify the applicant within 5 business days after agreeing or refusing to agree to the extension. 124C Stopping of time for consent applications The period within which the Executive Director must determine an application under section 124 or 124A stops to run on the day when the Executive Director requests additional information under section 124B and starts to run when that information is provided to the Executive Director.". 91 Compliance with consents In section 125 of the Principal Act, for "section 124" substitute "this Part". 85 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 92 Requests for reviews regarding consents After section 126(8) of the Principal Act insert-- "(9) If the Heritage Council determines under subsection (5)(b) to set aside the determination of the Executive Director and substitute it with a determination to issue the consent, the Executive Director must issue the consent within 5 business days of the Heritage Council's determination.". 93 New section 126A inserted After section 126 of the Principal Act insert-- "126A Requirement to notify Executive Director of intention to undertake investigation or survey of land A person who intends to undertake an investigation or a survey of land for the purpose of discovering an archaeological site must notify the Executive Director of the person's intention before the commencement of the investigation or survey. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 240 penalty units.". 94 Reporting of investigations and surveys of land After section 127(3) of the Principal Act insert-- "(4) A person who undertakes an investigation or a survey of land for the purpose of discovering an archaeological site must give a survey report that complies with subsection (7) to the Executive Director within 6 months after completing the investigation or survey. 86 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 240 penalty units. (5) A person who undertakes an investigation or a survey of land for the purpose of preparing a cultural heritage management plan and discovers an archaeological site must give a survey report that complies with subsection (7) to the Executive Director within 6 months after completing the investigation or survey. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 240 penalty units. (6) A person who undertakes an investigation or a survey of land in accordance with a cultural heritage permit and discovers an archaeological site must give a survey report that complies with subsection (7) to the Executive Director within 6 months after completing the investigation or survey. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 240 penalty units. (7) A survey report must-- (a) be in the prescribed form; and (b) contain photographs, maps and plans of the investigation or survey; and (c) contain field notes about the investigation or survey; and 87 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (d) include any prescribed documentation.". 95 Approval of recommendation for a site of archaeological value In section 133 of the Principal Act-- (a) in subsection (2), for "decision" substitute "determination"; (b) in subsection (3), for "approval of a recommendation for a site of archaeological value" substitute "determination". 96 New section 139A inserted After section 139 of the Principal Act insert-- "139A Land owner must apply for recording of covenant or agreement (1) An owner who enters into a covenant, or agreement to vary a covenant, under section 134 or 135 must make an application under section 140 to the Registrar of Titles to record notice of-- (a) the covenant, or agreement to vary the covenant; or (b) any variation, release or determination of the covenant under this Part. (2) An owner must make an application under subsection (1) as soon as practicable after the covenant or agreement is entered into, or the variation, release or determination occurs.". 97 Notices to show cause why works should not be carried out (1) In the heading to section 154 of the Principal Act, after "works" insert "or activities". 88 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (2) In section 154(2) of the Principal Act-- (a) omit ", with the consent of the Heritage Council,"; (b) for "works specified" substitute "works or activities specified". (3) After section 154(2) of the Principal Act insert-- "(2A) If a registered place or registered object is owned by more than one person, a notice under subsection (2) may be served on any or all of the owners whom the Executive Director considers has contravened section 152 or 153.". (4) In section 154(3) of the Principal Act, for "specify works" substitute "specify works or activities". 98 Repair orders for carrying out of works (1) In the heading to section 155 of the Principal Act, after "works" insert "or activities". (2) In section 155(1) of the Principal Act, for "works specified" substitute "works or activities specified". (3) In section 155(2) of the Principal Act, for "those works" substitute "those works or activities". 99 Executive Director may carry out works (1) In the heading to section 159 of the Principal Act, for "works" substitute "works or activities". (2) In section 159(a) of the Principal Act, for "any works" substitute "any works or activities". (3) In section 159(b) of the Principal Act, for "works" substitute "works or activities". 89 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (4) At the end of section 159 of the Principal Act insert-- "(2) The Heritage Council may make available to the Executive Director a security given under section 101A for the costs of works or activities under subsection (1)(a) if the repair order is in relation to the same works or activities in respect of which the security was given.". 100 General powers of entry For section 201(4) of the Principal Act substitute-- "(4) An inspector or authorised person must not enter a residence unless-- (a) in the case of a residence that is occupied--the occupier of the residence has given written consent to the entry; or (b) in the case of a residence that is unoccupied-- (i) the owner of the residence has given written consent to the entry; or (ii) in the absence of written consent, 2 days' clear notice is given to the owner of the residence.". 101 Heritage Fund In section 234(2)(b) of the Principal Act, for "section 103" substitute "section 101A". 90 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 102 New Part 11A heading inserted After section 242 of the Principal Act insert the following heading-- "Part 11A--Special assistance". 103 Statute law revision--section 244 In section 244(4) of the Principal Act omit "will". 104 New Division 3 of Part 14 inserted After section 293 of the Principal Act insert-- "Division 3--Transitional provisions-- Heritage Amendment Act 2023 294 Interpretation In this Division-- amending Act means the Heritage Amendment Act 2023. 295 Previous nominations of objects integral to places and of additional land On the commencement of section 32 of the amending Act-- (a) a reference in this Act to a nomination under section 27A is taken to include a reference to a nomination under section 31 before its repeal; and (b) a reference in this Act to a nomination under section 27B is taken to include a reference to a nomination under section 32 before its repeal. 91 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments 296 Nomination of place or object, objects integral to places and of additional land (1) This section applies to a nomination of a place or object under section 27, an object under section 31, or additional land under section 32, for inclusion in the Heritage Register that-- (a) was made before the commencement of section 32 of the amending Act; and (b) had not been finally determined as at the commencement of section 32 of the amending Act. (2) The nomination is to be considered and determined as follows-- (a) if the Executive Director had made a recommendation under section 37 before the commencement of section 32 of the amending Act--in accordance with this Act as in force immediately before the commencement of section 32 of the amending Act; or (b) if the Executive Director had not made a recommendation under section 37 before the commencement of section 32 of the amending Act--in accordance with this Act as amended by Part 4 of the amending Act. 297 Offences (1) Section 43, as amended by section 43 of the amending Act, applies to an offence alleged to have been committed on or after the commencement of section 43 of the amending Act. 92 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of section 43 of the amending Act, the offence is alleged to have been committed before that commencement. (3) Section 87, as amended by section 57 of the amending Act, applies to an offence alleged to have been committed on or after the commencement of section 57 of the amending Act. (4) For the purposes of subsection (3), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of section 57 of the amending Act, the offence is alleged to have been committed before that commencement. (5) Section 88, as amended by section 58 of the amending Act, applies to an offence alleged to have been committed on or after the commencement of section 58 of the amending Act. (6) For the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of section 58 of the amending Act, the offence is alleged to have been committed before that commencement. (7) Section 89, as amended by section 59 of the amending Act, applies to an offence alleged to have been committed on or after the commencement of section 59 of the amending Act. (8) For the purposes of subsection (7), if an offence is alleged to have been committed between 2 dates, one before and one on or 93 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments after the commencement of section 59 of the amending Act, the offence is alleged to have been committed before that commencement. 298 Exemption for alterations for purposes of religious services or rites If the owner of a place or object has given notice in accordance with section 90 of this Act before the commencement of section 60 of the amending Act and the proposed alteration has not yet been completed, the alteration may be completed in accordance with this Act as in force immediately before the commencement of section 60 of the amending Act. 299 Permits (1) This section applies to a permit application that-- (a) was made before the commencement of Part 4 of the amending Act; and (b) had not been finally determined as at the commencement of Part 4 of the amending Act. (2) The permit application is to be considered and determined in accordance with this Act as in force immediately before the commencement of Part 4 of the amending Act. 300 Securities On the commencement of section 74 of the amending Act-- (a) a security given under section 103 before its repeal is taken to be a security given under section 101A; and 94 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments (b) section 101A applies to any security given under section 103 before its repeal as if the security had been given under section 101A. 301 Determination by the Executive Director as to archaeological value Section 118A, as inserted by section 84 of the amending Act, applies in respect of a site card under section 127 that is provided to the Executive Director on or after the commencement of section 84 of the amending Act. 302 Consent applications (1) The amendments made to section 124 by section 89 of the amending Act apply only to an application made on or after the commencement of section 89 of the amending Act. (2) Sections 124A, 124B and 124C, as inserted by section 90 of the amending Act, apply with respect to a consent issued under section 124 whether that consent was issued before or after the commencement of section 90 of the amending Act. (3) The amendments made to section 126 by section 92 of the amending Act apply only to a request made on or after the commencement of section 92 of the amending Act. 303 Land owner must apply for recording of covenant or agreement Section 139A, as inserted by section 96 of the amending Act, applies only to a covenant or agreement entered into on or after the 95 Heritage Amendment Act 2023 No. of 2023 Part 4--General amendments commencement of section 96 of the amending Act. 304 Repair orders (1) The amendments made to section 154 by section 97 of the amending Act apply only in respect of a notice that is served on or after the commencement of section 97 of the amending Act. (2) The amendments made to section 155 by section 98 of the amending Act apply only in respect of a notice under section 154 that is served on or after the commencement of section 98 of the amending Act. (3) The amendments made to section 159 by section 99 of the amending Act apply only in respect of a repair order that is served on or after the commencement of section 99 of the amending Act. 305 Publication and inspection requirements Sections 171 and 184, as in force immediately before the commencement of Part 2 of the amending Act, continue to apply in respect of any draft World Heritage Strategy Plan or draft World Heritage Management Plan (as the case requires) required to be made available for inspection free of charge if the Plan is required to be made available for a period-- (a) that begins before that commencement; and (b) that ends after that commencement.". 96 Heritage Amendment Act 2023 No. of 2023 Part 5--Repeal of this Act Part 5--Repeal of this Act 105 Repeal of this Act This Act is repealed on 1 February 2025. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ 97 Heritage Amendment Act 2023 No. of 2023 Endnotes Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. Minister's second reading speech-- Legislative Assembly: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to amend the Heritage Act 2017 to provide for exclusion determinations and to make other amendments to improve the operation of the Act and for other purposes." 98
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