Stronger laws in place to better protect our heritage
The Canberra community is passionate about our shared heritage and its importance in recognising past generations and informing future generations. It has been calling for more effective ways to deal with breaches of the Heritage Act and damage to heritage places and objects. The Heritage Amendment Act, which took effect on 26 February 2020, addresses those concerns by providing a more flexible and responsive system of heritage directions and compliance notifications to better protect our heritage.
It strengthens the way damage to heritage places and objects can be dealt with to both deter people from doing damage and to make them responsible for repairing it. It expands the range of tools and processes available to tackle minor and moderate damage, as well as more serious harm.
The reforms cut red tape and give the Heritage Council more flexibility in dealing with problems, allowing quicker, more appropriate outcomes. They also bring the ACT into line with other states and territories.
Repair damage directions
The new ‘repair damage’ directions give the Council the authority to direct people to repair any damage, if it can be repaired.
The provision allows the Heritage Council to issue a direction to a person who owns or looks after or who does work that damages a heritage place or object to repair any damage to that place or object. This includes owners, occupiers and tradespeople.
The Heritage Council may give an extension of time to comply with a repair damage direction upon application from the person who has been given the direction.
The amendments establish an offence to contravene a repair damage direction (500 penalty units - $80,000 for an individual and $405,000 for a corporation).
If the Territory has to carry out the requirements of a heritage direction, costs can be recovered from the person the direction was given to.
The decisions by the Heritage Council to issue a repair damage direction or to refuse to give an extension of time to comply with a direction will be reviewable by the ACT Civil and Administrative Tribunal.
The failure to comply with a repair damage direction can be grounds for a Heritage Order made by the Supreme Court.
Directions can be issued for any level of damage, from minor to severe. Examples include unapproved works not in accordance with a mandatory heritage guideline or conservation management plan, or works not in accordance with a development or Heritage Act 2004 (Heritage Act) approval – if the conduct diminishes the heritage significance of a place or object.
Previously, the Heritage Council could only issue directions to stop any ‘serious and imminent threat’ to a heritage place or object. This meant the directions could not be used after the damage had occurred and did not apply to ‘minor damage’ (as opposed to ‘serious damage’).
Section 62 heritage directions
Under section 62 of the Heritage Act, the Council may give the owner, occupier or a person whose work affects a heritage place or object a heritage direction when there is a serious and imminent threat to the heritage significance of a place or object. The place or object does not need to be registered on the heritage list for a direction to apply.
Heritage directions may include orders to:
- carry out essential maintenance on a place
- avoid adverse effects on a significant feature of a heritage place, and
- not undertake a development affecting the heritage significance of a place.
There were limitations in the past in the use of heritage directions for the protection of heritage places/objects. Previously section 62 heritage directions could only be issued for places at ‘serious’ and ‘imminent’ threat.
Because of this, section 62 heritage directions were unable to be used for minor to moderate offences due to the threshold wording of ‘serious’.
Amendments to section 62 heritage directions now give the Council the authority to issue a direction where there is an imminent threat to the heritage significance of a place or object by removing the threshold wording of ‘serious’.
Infringement notice scheme
A new infringement notice scheme introduced as part of the reforms makes it easier to penalise people who damage heritage places and objects.
Authorised compliance officers are now able to issue immediate fines of $1000 to an individual or $5000 to a corporation for damage to heritage places or objects or Aboriginal places or objects, regardless of whether they can be repaired. Compliance officers are authorised under the Heritage Act.
Previously there was no heritage infringement notice scheme. The only option was to prosecute offenders through the courts, which was drawn out, inflexible, difficult and costly to achieve for minor damage.
Infringement notices can only be issued for strict liability offences and are aimed at conduct on the less serious side of the criminal spectrum. Any offence that has complex legal distinctions is not suitable for an infringement notice. The offences under the Heritage Act that are suitable for infringement notices are for people who:
- diminish the heritage significance of a place or object
- damage an Aboriginal place or object.
The penalty is in line with penalties for breaches of comparable legislation where conservation values have been damaged, such as the Environment Protection infringement notices scheme.
Strict liability offences
A strict liability offence is one where there is no requirement to prove a fault element, such as intention or recklessness. It is sufficient to show that the individual was responsible for the prohibited act. For instance, it is a strict liability offence to exceed the speed limit whether or not the driver intended to drive faster than the speed limit.
Heritage compliance policy
A heritage compliance policy will be released in due course to guide the Heritage Council and compliance officers when to use which compliance tool—a direction, infringement notice and/or prosecution—or whether to use more than one. Current options for prosecution will remain for serious damage. The policy will be based on best practice of other jurisdictions and other ACT Government compliance and enforcement policies.
The heritage compliance policy will apply a risk-based compliance approach to enable the targeting of resources to those areas where they are most needed and will be most effective.
Heritage Amendment Act 2020
ACT Heritage fact sheets, including information on heritage in the ACT, how heritage is protected and enforced, heritage and planning and development, and Heritage Council policies
For further information
If you would like to know more about the amended legislation, please contact us:
Phone: 13 22 81
Post: ACT Heritage, GPO Box 158, Canberra City, ACT 2601