Contributed by Environmental Defenders Office and current to June 2021.

What is heritage?

Heritage is generally understood to be unique places and objects that are valued by a community or cultural group that possess historic, religious, spiritual, cultural, ecological, or evolutionary values.

How is heritage protected in the ACT?

The Heritage Act 2004 (ACT) provides for the recognition, registration and conservation of places and objects of natural and cultural significance in the ACT. The Heritage Act 2004 also creates the Heritage Register and Heritage Council.

The following places and objects are excepted from protection under the Heritage Act 2004:

• individual trees of heritage significance in built up urban areas that are not registered heritage places which are protected by the Tree Protection Act 2005 (section 3B of the Heritage Act 2004);
• places and objects that include the habitat of a threatened native species, the habitat of a threatened ecological community, or a key threatening process, where the place or object has natural heritage significance a kind protected under the Nature Conservation Act 2014 (which is principally concerned with the protection of flora and fauna) (section 42A of the Heritage Act 2004).

What is the Heritage Register?

The Heritage Register (established under section 20 of the Heritage Act 2004) is a publicly available list of places and objects that have been registered under the Heritage Act 2004. The Register is maintained by the Heritage Council. The Register includes places and objects, tha are recognised as heritage listed, provisionally registered, as well as those nominated for potential inclusion (section 20). Provisional registration provides immediate protection for 5 months during which further steps tocomplete registration are carried out (paragraph 35(1)(b)). As outlined in section 20 of the Heritage Act 2004, the Register provides the registration details about each registered place or object. The registration details for a registered place or object are defined in section 12 as:

• its name;
• its location or address;
• a description of it, including (if relevant) its extent or boundary;
• a statement about its heritage significance, including the reasons for the registration and an assessment of the place or object against the heritage significance criteria;
• whether it is registered or provisionally registered;
• the date it was registered or provisionally registered
• if it is provisionally registered—the period of provisional registration.

What is the Heritage Council?

The Heritage Council (established under section 16 of the Heritage Act 2004) plays a key role in administering the processes and components within the Heritage Act 2004. The Council is made up of eleven members, including: the ACT Conservator of Flora and Fauna, the ACT chief planning executive, six people with expertise relating to heritage, and three public representatives (section 17).

Roles and Duties of the Heritage Council

The functions of the Heritage Council are detailed in section 18 of the Heritage Act 2004 and include the following:

• maintaining the Heritage Register;
• placing items on the Heritage Register;
• identifying, assessing, conserving and promoting places and objects in the ACT that hold heritage significance;
• encouraging the registration of heritage places and objects;
• providing public education on heritage issues;
• advising the ACT planning and land authority on certain planning matters relating to heritage; and
• advising the Minister responsible for heritage about the management and promotion of heritage.

How is something registered as a heritage place or object?

Anyone can apply to nominate an item for provisional registration by submitting an application to the Heritage Council (section 28 of the Heritage Act 2004). The application must be in writing, given to the Heritage Council, include the name and location of the proposed place or object as well as a statement of reasons why the place or object holds heritage significance (section 28(2) of the Heritage Act 2004).

The Council then considers whether the place or object meets the criteria for heritage significance under section 10 of the Heritage Act 2004, which provides that a place or object has heritage significance if it meets one or more of the following:

• importance to the course or pattern of the ACT's cultural or natural history;
• has uncommon, rare or endangered aspects of the ACT's cultural or natural history;
• potential to yield important information that will contribute to an understanding of the ACT's cultural or natural history;
• importance in demonstrating the principal characteristics of a class of cultural or natural places/objects;
• importance in exhibiting particular aesthetic characteristics valued by the ACT community or a cultural group in the ACT;
• importance in demonstrating a high degree of creative or technical achievement for a particular period;
• has a strong or special association with the ACT community, or a cultural group in the ACT for social, cultural or spiritual reasons;
• Special association with the life or work of a person, or people, important to the history of the ACT.

How does the registration process work?

Part 6 of the Heritage Act 2004 sets out the process for heritage registration:

1. Application is given to the Heritage Council to register an item (section 28).
2. Council accepts or rejects application to provisionally register item (section 32).
3. Council makes public notice about decision to accept or decline provisional registration (section 34).
4. If accepted, public is invited to comment on whether item should be permanently registered (section 37).
5. Council provides report to Heritage Minister about registration of the item and any issues raised in public comments (section 38).
6. Minister has 15 working days to direct council to give further consideration to any issues (section 39).
7. If satisfied item holds heritage significance, the council moves to carry out final registration (paragraph 40(1)(a)).
8. Item is permanently listed on the register and is provided ongoing legal protection.

Can decisions of the Heritage Council be challenged?

Heritage Council decisions to register, or not to register, a place or object can be challenged by a wide range of persons in the ACT Civil and Administrative Tribunal (ACAT). People who may seek review include the owner, occupier, lessee, nominator or any person who made comments during the public consultation period (section 111 through to section 114 of the Heritage Act 2004, and Schedule 1 of the Heritage Act 2004).

In addition, an ‘eligible person’ may also apply to the Supreme Court of the ACT for judicial review of Heritage Council decisions under the Administrative Decisions (Judicial Review) Act 1989 (section 4A of the Administrative Decisions (Judicial Review) Act 1989). ‘Eligible person’ is defined broadly to include an individual, a corporation, or an unincorporated organisation or association (Dictionary of the Administrative Decisions (Judicial Review) Act 1989). Decisions under the Heritage Act 2004 are ‘Category A’ decisions (section 4A(5)), which means that a person may apply for judicial review only if their interests are adversely affected by the decision or conduct that is the subject of the application and, if the decision is of a kind that is proposed in a report or recommendation, the person’s interests are, or would be, adversely affected if the decision were, or were not, made in accordance with the report or recommendation (section 4A(2) of the Administrative Decisions (Judicial Review) Act 1989).

How are Aboriginal objects and places protected?

Aboriginal objects and places can be registered under the Heritage Register in the same way as any other item.. During the registration process, the Heritage Council has specific obligations under section 31 of the Heritage Act 2004 to consult with each representative Aboriginal organisation (which are entities declared by the minister under section 14 of the Heritage Act 2004) about an Aboriginal place or an Aboriginal object before making a decision about provisional registration for the place or object. If the Heritage Council receives an application under section 43 to cancel the registration of an Aboriginal place or Aboriginal object, the Heritage Council is required under section 45 to consult with, and consider the views of, each representative Aboriginal organisation before deciding whether registration of the place or object should be cancelled.

Under section 62 of the Heritage Act 2004, the Heritage Council has the power to give the owner, occupier, or a person whose work affects the place or object, a heritage direction to do, or not to do, something to conserve the heritage significance of the place or object. For example, an order to undertake essential maintenance on a place. A heritage direction may also be given relating to an Aboriginal place or object (paragraph 62(1)(b)). A heritage direction must only be given where the council is satisfied that there is a serious and imminent threat to the heritage significance of the place or object and immediate protection is necessary (subsection 62(3) of the Heritage Act 2004). Contravention of a heritage direction is an offence with a maximum penalty of 1,000 penalty units ($160,000 for individuals, $810,000 for corporations) (section 65 of the Heritage Act 2004).

What happens if a heritage listed object or place is negatively affected?

Section 74 of the Heritage Act 2004 makes it an offence for a person to engage in conduct that diminishes the heritage significance of a registered place or object. For instance, where the person is reckless as to the consequences of their conduct, the maximum penalty is 1,000 penalty units ($160,000 for individuals, $810,000 for corporations) (section 74(1) of the Heritage Act 2004).

Section 75 of the Heritage Act 2004 makes it an offence for a person to engage in conduct that causes damage to an Aboriginal place or object, whether or not the place or object is registered. For instance, where the person is reckless about whether the conduct would cause damage to the Aboriginal place or object, the maximum penalty is 1,000 penalty units ($160,000 for individuals, $810,000 for corporations) (section 75(1) of the Heritage Act 2004).

Authorised persons have significant powers of search and seizure to enforce the provisions of the Act (section 77 through to section 98 of the Heritage Act 2004).