Page 384 - Week 02 - Tuesday, 18 February 2020
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Section 46 of the Legislation Act 2001 operates to provide the Heritage Council with the power to amend or appeal a direction. In this context, the council has the power to revoke a repair damage direction if the recipient can demonstrate that they are under financial hardship. Additionally, new section 67B allows the Heritage Council to give an extension of time to comply with a repair damage direction upon application from a person who has been given the direction. An application for an extension must be in writing and state the reasons why the extension is required. In this context, financial hardship may be demonstrated by the applicant as a reason for an extension.
A prescriptive list of reasons why an extension may be required is not defined in the bill, to ensure that the Heritage Council’s direction when making the decision is not limited. However, the explanatory statement outlines that the reason must be one that an ordinary member of the community would accept as reasonable in the circumstances.
Additionally, the explanatory statement outlines a number of factors the Heritage Council may take into account, including serious or life-threatening injury or illness of the applicant or someone for whom they have caring responsibilities; disabilities the person may have; family emergencies or bereavements; planned or unplanned travel; financial hardship; or unavailability of a suitable or qualified tradesperson to undertake the work. The decisions of the Heritage Council to issue a repair damage direction or to refuse to give an extension of time to comply with a direction are reviewable by the ACAT.
Under section 40B of the Human Rights Act, it is unlawful for the Heritage Council, as a public authority, to act in a way that is incompatible with a human right or to fail to give proper consideration to a relevant human right in making a decision. The Heritage Council must therefore consider the individual circumstances of any person to whom it intends to issue a repair damage direction or who requests an extension of time to comply with that direction.
With regard to debt owing to the territory following repairs to a heritage place or object undertaken by an authorised person, an additional safeguard to minimise the limitation on the right to equality before the law can be found in section 131 of the Financial Management Act 1996, which permits the Treasurer to waive the territory’s right to payment of an amount payable to the territory; postpone any right of the territory to be paid a debt in priority to another debt; allow the payment by instalments of an amount payable to the territory; or defer the time for payment of an amount payable to the territory. (Extension of time granted.)
The repair damage direction scheme is designed to provide a disincentive to damaging heritage places and objects, to send a strong message to the building and development community that disregard for the law should not be seen as a mere cost of doing business.
Those who are most likely to be issued a repair damage direction will be the owners, occupiers or custodians of heritage places or objects, although a direction can be issued to a person whose work affects a place or object that has heritage significance.
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