Page 2113 - Week 07 - Thursday, 16 May 2013

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council to not only further consider any matters raised in their public consultation report but also any other matter the minister thinks relevant and related to the functions of the council.

This provision will reduce the likelihood for the need for the minister to exercise the call-in decision. It is the government’s view that these powers are necessary to achieve the best possible outcomes for heritage protection and conservation while also addressing the future needs, growth and prosperity of the territory. In calling a decision, provisions in the amended legislation will ensure that the minister must give consideration to the Heritage Council’s assessment of heritage significance for the place or object.

If, on further consideration of the material provided after calling in a decision, the minister believes that he or she should not make the decision, there is provision for the minister to hand back the decision to the Heritage Council. The ministerial call-in provision provides for a balance between respecting the principles of the Burra Charter, a nationally accepted standard for best practice in the conservation of heritage places and objects; retaining the independence of the Heritage Council in relation to registration decisions; and bringing the ACT’s legislation in line with ministerial involvement in registration decisions in other jurisdictions across Australia and with comparable legislation in the ACT such as the Planning and Development Act.

The second key policy issue raised by this bill relates to appeal provisions. An amendment is proposed that will remove the existing appeal provision against a decision of the council not to provisionally register a place or object. There is no strong natural justice argument for retaining this provision, particularly as the concerned party can provide a fresh nomination to the council with a new or redeveloped argument and evidence for listing.

There are unlikely to be any circumstances where a decision not to provisionally register a place or object directly impacts on a person’s wellbeing or property rights. Most importantly, a property owner will still be able to seek review of a decision where property rights are affected through a decision to register. Across Australia the only jurisdiction with an appeal right not to provisionally register is the ACT. The amendment bill will bring the ACT in line with other jurisdictions on this matter. It will also bring reviewable decisions in line with comparable legislation in the ACT such as the Planning and Development Act, the Tree Protection Act and the Nature Conservation Act.

Of the range of technical and administrative amendments, perhaps one of the most critical is that which will introduce the National Heritage Convention, or HERCON criteria, as adopted by the Environment Protection and Heritage Council as a national standard for guiding heritage significance assessment. Many jurisdictions in Australia have moved to the HERCON criteria or are in the process of doing so. The overall coverage of the criteria is the same as the current ACT criteria but the HERCON criteria are more succinct.

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