Commonwealth heritage protection

Introduction

There are a number of different types of heritage protection in Commonwealth legislation relating to:

• World Heritage
• National Heritage
• Commonwealth heritage
• Overseas Places of Historic Significance to Australia
• Indigenous heritage
• moveable cultural heritage
• historic shipwrecks.

The first four are implemented by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'), while the others have specific legislation.

World heritage

The Convention for the Protection of the World Cultural and Natural Heritage ('the Convention') establishes an international list of places of cultural or natural heritage of outstanding universal value, known as the World Heritage List. Countries which are parties to the Convention are obligated to take steps to protect and preserve World Heritage properties within their countries.

For a place to be included on the World Heritage List, it must first be nominated by the country in which it is situated. Whether a place is included in the List is decided by the World Heritage Committee (an elected body of 21 countries which are also parties to the Convention), on the advice of the International Council on Monuments and Sites (ICOMOS) and/or the International Union for Conservation of Nature (IUCN). Australia currently has 20 properties on the World Heritage List, including the Greater Blue Mountains area, the Sydney Opera House and the Great Barrier Reef. There are currently none within the ACT.

The EPBC Act provides for the implementation of the Convention in Australia. In particular, places on the World Heritage List are protected under the EPBC Act as a 'matter of national environmental significance'. This means that an action that will, or is likely to have, a significant impact on the world heritage values of a World Heritage place must be referred to the Commonwealth Minister for the Environment ('the minister') for assessment (see Chapter 4 in this Handbook for more information on Commonwealth environmental assessment).

National heritage list

The National Heritage List contains natural, indigenous and historic places with outstanding heritage value to Australia. There are currently over 100 places on the list, including five sites in the ACT--Old Parliament House, the Australian War Memorial and the Memorial Parade, the High Court and National Gallery precinct, the Australian Academy of Science building and the Australian Alps National Parks (which includes Namadgi National Park and Tidbinbilla Nature Reserve).

To be included on the National Heritage List, a place must have outstanding heritage value to the Australian nation based on one or more of the following:

• importance in the course, or pattern, of Australia's natural or cultural history
• possession of uncommon, rare or endangered aspects of Australia's natural or cultural history
• potential to yield information that will contribute to an understanding of Australia's natural or cultural history
• importance in demonstrating the principal characteristics of Australia's natural or cultural places, or a class of Australia's natural or cultural environments
• importance in exhibiting particular aesthetic characteristics valued by a community or cultural group
• importance in demonstrating a high degree of creative or technical achievement at a particular period
• strong or special association with a particular community for social, cultural or spiritual reasons
• special association with the life or works of persons of importance in Australia's natural or cultural history
• importance as part of Indigenous tradition--see section 324D of the EPBC Act and reg 10.01A of the Environment Protection and Biodiversity Conservation Regulations 2000.

Subdivision BA of Part 15 of the EPBC Act sets out the usual process for including places on the National Heritage List. Before each annual assessment period, the minister must invite nominations for places for inclusion on the National Heritage List. Any person may nominate a place. The minister then refers that nomination to the Australian Heritage Council for assessment. As part of this process, the council prepares a 'finalised priority assessment list' for that year and invites public comments. The minister then receives an assessment of each place from the council and makes a final decision on whether to list the place. There are provisions for emergency listing by the minister without reference to the council if the heritage values of a place are under threat (sub-div BB of Pt 15).

Similarly to World Heritage, places on the National Heritage List are protected under the EPBC Act as a 'matter of national environmental significance'. This means that in most cases, an action that will, or is likely to have, a significant impact on the national heritage values of a National Heritage place must be referred to the minister for assessment (see ss 15B and 15C, EPBC Act and discussion in Chapter 4 of this Handbook).

Commonwealth heritage list

The Commonwealth Heritage List also includes natural, indigenous and historic places. However, these places must be in areas owned or leased by the Commonwealth. Currently there are nearly 600 places on the Commonwealth Heritage List, with over 100 places in the ACT, including the Carillon, the redwood plantation in Pialligo and the Mount Stromlo Observatory precinct.

The criteria for inclusion are the same as those for the National Heritage List except that only significant, instead of outstanding, heritage value is required (s 341D and r 10.03A). The nomination and listing process is essentially the same as for the National Heritage List (sub-div BA of Pt 15).

Commonwealth Heritage places are protected under the EPBC Act. Actions by any person which have, or are likely to have, a significant impact on the environment on Commonwealth land, or actions by the Commonwealth government which are likely to have a significant impact on the environment anywhere, all require approval by the minister. Since the term 'environment' is defined to include the heritage values of the place (s 528), actions with a significant impact on the heritage values of a Commonwealth Heritage place will also require assessment and approval.

List of overseas places of historic significance to Australia

The List of Overseas Places of Historic Significance to Australia is also established under the EPBC Act to symbolically recognise overseas sites that have a special place in Australia's history (Ch 5A). Three places currently listed include the Kokoda trail in Papua New Guinea, Anzac Cove at Gallipoli, and the Howard Floreys Laboratoy at the Sir William Dunn School of Pathology in the UK.

Indigenous heritage

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is intended to preserve and protect areas and objects that are of particular significance to Indigenous Australians. The Minister for the Environment can make declarations to protect significant Aboriginal areas or objects if they are under threat of injury or desecration (ss 9 and 12). Contravention of such a declaration is an offence (ss 22 and 23).

Places of heritage significance to Indigenous people can also be listed on the National Heritage List or the Commonwealth Heritage List under the EPBC Act. For example, a place that is of outstanding heritage value for its importance as part of Indigenous tradition would meet the criteria for the National Heritage List.

Moveable cultural heritage

Under the Protection of Moveable Cultural Heritage Act 1986 (Cth) there is a National Cultural Heritage Control List that sets out categories of objects that constitute the moveable cultural heritage of Australia (s 8). Moveable cultural heritage can be of ethnological, archaeological, historical, literary, artistic, scientific or technological significance (s 7). The export of objects on the control list is prohibited unless it occurs under a permit or certificate granted under the Act (s 9).

The Act gives effect to Australia's international obligations under the Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property. As a consequence, the Act also deals with the import of moveable cultural heritage objects into Australia that have been illegally exported from their country of origin.

Historic shipwrecks

The Commonwealth also has the Historic Shipwrecks Act 1976 (Cth), which provides some protection to thousands of historic shipwrecks in Commonwealth waters, which extends from below the low water mark to the edge of the continental shelf. The Act provides for a Register of Historic Shipwrecks (s 12), creates offences for destroying, damaging, interfering with, or moving a historic shipwreck (s 13), and provides for the creation of protected zones around historic shipwrecks where activities such as diving, trawling or mooring boats may be prohibited or restricted (ss 7 and 14).

Australian Heritage Council

The Australian Heritage Council, established under the Australian Heritage Council Act 2003 (Cth), is an expert advisory body to the Minister for the Environment. Its members include a chair and six other members, all of whom must have appropriate experience or expertise in heritage. Two members must have expertise in the natural heritage arena and two must have historic heritage expertise. Two of the members must be Indigenous with experience or expertise in Indigenous heritage, and at least one of the two should represent the interests of Indigenous people (s 7).

The council's roles include:

• assessing whether a place meets the National Heritage or Commonwealth Heritage criteria, including through inviting public comment
• advising the minister on conserving and protecting places included, or being considered for inclusion, on the National Heritage or Commonwealth Heritage List
• advising the minister in relation to the inclusion of places on the List of Overseas Places of Historic Significance to Australia
• promoting the identification, assessment, conservation and monitoring of heritage (s 5).

The former Register of the National Estate was established in 1975 as a national inventory of places of natural and cultural heritage significance. However, the provisions requiring the Australian Heritage Council to administer the Register, together with references to the Register in the EPBC Act, were repealed with effect from 19 February 2012. Information about places on the Register is archived and is available on the Australian Heritage database.

More information about Commonwealth heritage protection, including places on the different heritage lists, is available on the Commonwealth Department of the Environment's website (see Contacts list at the back of this book).