Wednesday, 22 February 2023
Heritage Amendment Bill 2023
Heritage Amendment Bill 2023
Statement of compatibility
Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (10:37): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Heritage Amendment Bill 2023.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Heritage Amendment Bill 2023.
In my opinion, the Heritage Amendment Bill 2023 (Bill), as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill will amend the Heritage Act 2017 to:
• modernise requirements in relation to notices, the publication and inspection of documents and hearings under the Heritage Act;
• provide for the making of exclusion determinations; and
• make general amendments to improve the operation of the Heritage Act.
Human Rights protected by the Charter that are relevant to the Bill
The human rights protected by the Charter that are relevant to the Bill are –
• right to privacy and reputation (section 13);
• freedom of expression (section 15);
• cultural rights (section 19).
For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.
Privacy and reputation
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. An interference with privacy will not be arbitrary provided it is reasonable in the particular circumstances.
The Bill inserts a new exclusion determination process into the Heritage Act, which requires applicants for exclusion determinations to provide information to the Executive Director of Heritage Victoria. To the extent that the information collected by the Executive Director includes personal information, the right to privacy will be engaged. However, the collection of information will be permitted by law and will be confined to information that is necessary for determining applications. Accordingly, I consider that any interference with a person’s privacy resulting from the exclusion determination provisions will be lawful and not arbitrary.
The Bill also requires the publication of information in certain circumstances. Amendments to the Heritage Act provide that certain notices and registers may be made available online, which mean that any personal information they contain may be more easily accessible by a wider audience. However, the Bill specifies that personal information must not be disclosed without the applicant’s consent, thereby reducing any potential interference with an individual’s privacy. While the address of land the subject of a permit application may be published, that will not necessarily be personal information. To the extent it is, I consider that this interference is lawful and appropriately confined, as this information is necessary to understand the application being considered. In my view, having regard to the circumstances in which information is disclosed, these provisions are compatible with the right to privacy.
Powers of entry
The Bill amends section 201 of the Heritage Act to permit an inspector or authorised person, when exercising entry powers for the purposes of investigating the cultural heritage significance of a place or object or determining compliance with the Act, to enter an unoccupied residence without written consent provided two days’ clear notice is given to the owner of the residence.
While the exercise of this power may interfere with the privacy of an individual in some cases, any such interference will be lawful and not arbitrary. The power must be exercised with clear notice, at a reasonable time and for specific purposes connected with the enforcement of the Heritage Act. Further, entry to an unoccupied residence is likely to constitute a lesser interference with privacy than a residence that is occupied. In cases in which a residence is occupied, an inspector or authorised person will not be permitted to enter the residence without the occupier’s written consent. Accordingly, I consider that this provision is compatible with the right to privacy under the Charter.
I therefore consider that the amendments made by Part 7 of the Bill will be compatible with the Charter right to privacy because any limitation on the right is not arbitrary and is reasonable and justified.
Freedom of expression
Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.
Access to information
Clause 78 of the Bill inserts new section 254F in the Heritage Act, which provides that the Heritage Council or the Executive Director of Heritage Victoria is not required to make a document, the Heritage Register or the Heritage Inventory available on request if it is not reasonably practicable to do so as a result of an emergency or serious risk to public health in respect of which an emergency declaration has been made. While this amendment engages the right to freedom of expression, which includes the right to receive information, any interference will be minimal as many documents (including the Heritage Register and the Heritage Inventory) will continue to be accessible electronically. Further, I consider that the exception in section 15(3) of the Charter will apply to the provision, as a lawful restriction that is reasonably necessary to respect the rights of other persons and for the protection of public health.
Access to hearings
Section 248 of the Heritage Act provides that Heritage Council hearings, on whether a place or object is to be included in the Heritage Register, are to be conducted publicly. Clause 81 of the Bill amends this provision to enable the Heritage Council to close a hearing, or part of a hearing, to the public if a person making a submission objects to doing so publicly and the Heritage Council is satisfied that the submission is of a confidential nature. By impeding a person’s access to information, this provision engages the right to freedom of expression.
However, the right of a person to receive information is not absolute. These measures strike an appropriate balance between making submissions publicly available and ensuring that the Heritage Council has access to all relevant information on which to base its decision. Accordingly, I consider that clause 81 of the Bill is compatible with the right to freedom of expression under the Charter. I note that, to the extent that a hearing of the Heritage Council may be a civil proceeding under section 24 of the Charter, the right to a fair hearing will also be engaged. However, the right will not be limited because section 24(2) of the Charter provides that members of the public may be excluded from a hearing if permitted under legislation, as would be the case here.
Clause 81 of the Bill also inserts new section 248A in the Heritage Act to allow Heritage Council hearings to be conducted by audio link or audio visual link, as an alternative to in-person hearings. New section 248A provides that a hearing that is conducted in this manner must be made available to the public either while the hearing is being held or as soon as reasonably practicable afterwards. If a person or their representative do not attend the hearing, the Heritage Council may make a determination or recommendations without hearing from them. The purpose of this amendment is to provide the Heritage Council with greater flexibility in conducting proceedings and, in turn, better equip it to continue to perform its legislative functions and obligations. While these provisions have the potential to engage a number of rights under the Charter, including the rights to equality, freedom of expression, participation in public life and a fair hearing, any limitation on these rights will be reasonable and demonstrably justified. The option to conduct hearings by audio link or audio visual link provides an alternative mechanism to facilitate the hearing process; however under section 249 of the Heritage Act, the Heritage Council will still be bound by the rules of natural justice and required to consider all written submissions made pursuant to section 44 of the Heritage Act.
I therefore consider that the amendments made by Part 6 of the Bill will be compatible with the Charter right to freedom of expression because any limitation on that right is not arbitrary and is reasonable and justified.
Section 19 of the Charter protects the cultural rights of all persons with a particular cultural, religious, racial or linguistic background, and acknowledges that Aboriginal persons hold distinct cultural rights that should be protected.
Part 7 of the Bill inserts new section 36A into the Heritage Act to enable a prescribed person or body to apply to the Executive Director of Heritage Victoria for an exclusion determination that a place or object, or part of a place or object, not be included in the Heritage Register. If the Executive Director makes an exclusion determination, it prohibits that place or object (or part thereof) from being considered for inclusion in the Heritage Register for five years following the determination.
To the extent that an exclusion determination prevents culturally significant places or objects from being protected by inclusion in the Heritage Register, cultural rights under the Charter will be engaged. However, under new section 36C, the Executive Director can only make an exclusion determination if satisfied that the place or object (or part thereof) has no reasonable prospect of inclusion in the Heritage Register. Further, a person who has a real and substantial interest in the place or object has the right to request a review of the decision by the Heritage Council. The provision does not alter the standard for inclusion of matters in the Heritage Register. It is a procedural provision to provide certainty about an outcome that would be the case in any event (e.g. if another person nominated a place during the course of a development).
For these reasons, I am satisfied that the making of an exclusion determination is compatible with cultural rights under the Charter because any limitation on those rights is not arbitrary and is reasonable and justified.
The Hon Sonya Kilkenny MP
Minister for Planning
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The Victorian Government is committed to delivering an efficient, practical, and effective heritage system for Victoria.
The Bill will amend the Heritage Act 2017. These legislative amendments will create the following reforms:
• Provide for online access to heritage documents and notices and Heritage Council hearings; and
• Allow for applications to exclude places and objects from the Victorian Heritage Register; and
• Clarify and improve the operation of the Heritage Act.
Notices, publication and inspection of documents and hearings
The Bill removes the requirement to make physical documents available on request in Department offices during an emergency or where there is serious risk to public health.
The Bill modernises the legislation and increases public visibility of Heritage Act processes by allowing online access to key documents and notices via the Heritage Victoria or Heritage Council websites.
Public access to Heritage Council hearings will also be enhanced by the new provisions outlining the process for hearings to be held using audio or visual links.
The amendments also require searchable versions of the Victorian Heritage Register and Heritage Inventory to be made available online.
Amendments in relation to the exclusion of places and objects from the Victorian Heritage Register
Government agencies tasked with delivering major transport projects in Victoria have sought greater certainty on their obligations under the Heritage Act. Agencies have sought a way of establishing the heritage significance of any place or object affected by a major project early in the planning stages. Under current legislation, there is a significant risk that major transport projects will be disrupted or delayed by the receipt of a new nomination from a third party after works have started.
The Bill will create greater certainty for these projects. This is achieved by allowing agencies to apply to the Executive Director of Heritage Victoria to exclude a place or object from the Victorian Heritage Register. Applications are likely to be made where there was some possibility that a place or object have some heritage value or where this remains unclear.
If the Executive Director is completely satisfied that the place or object does not and will not meet the threshold for inclusion in the Victorian Heritage Register, the exclusion application would be granted. If the place or object does have potential for inclusion, it would become a nomination for inclusion and be progressed accordingly. Either way, the process will allow the significance of the heritage place or object to be established and taken into account in the planning stages of a project.
If an exclusion is granted, new nominations for that place or object will not be considered for five years unless significant new information is provided. This gives agencies the certainty required to plan projects and to provide appropriately for any heritage that is identified before works on a major project begin.
The robustness of the decision-making process is supported by allowing the Heritage Council to receive requests to review any decision within the first 28 days.
General Amendments to the Heritage Act 2017
The Bill will improve Heritage Act processes. Key changes relate to the processes for issuing heritage permits, consents for archaeological sites, and entering places and objects into the Victorian Register. The amendments:
• Allow the Executive Director of Heritage Victoria to initiate permit amendments with owner consent where this will result in a better heritage outcome.
• Allow applicants to make minor permit amendment requests without paying a fee.
• Allow permit exemptions to be revoked if they do not reflect best heritage practice.
• Require permits to be issued in 45 business days rather than 60 days, eliminating issue of decision-making timeframes including weekends and public holidays.
• Allow the Heritage Council to delegate power to the Executive Director to remove archaeological sites from the Heritage Inventory.
• Add a 20-day statutory timeframe for decisions on consents, and decisions on whether to include a site in the Victorian Heritage Inventory.
• Align consent process with existing permit provisions, including allowing applications for consent amendments, and consent exemptions.
• Reinstate a requirement to notify the Executive Director of Heritage Victoria of an intention to carry out an archaeological survey and the requirement to submit a survey report within 6 months.
• Ensure nominations to add land or objects integral to a place are subject to the same provisions as other nominations.
• Require the Heritage Council to provide reasons for decisions on whether to include a place or object in the Victorian Heritage Register.
The Bill also introduces several practical changes. These include:
• Ensuring the Heritage Council will be able to call on funds set aside as a security measure, for example a bank guarantee, to ensure compliance with permit conditions.
• Ensuring that, where places have multiple owners, only those directly affected by Heritage Act processes need to be involved.
• Preventing people from being guilty of an offence when acting in accordance with a notice or order served on them.
I commend the Bill to the house.
Cindy McLEISH (Eildon) (10:38): I move:
That this debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 8 March.