Damage to heritage places and objects
The Canberra community is passionate about our shared heritage and the importance of heritage within our community to recognise past generations and inform future generations.
Knowing our region’s history and the role it has played in shaping our present community makes it important to conserve heritage places and objects for current and future generations. The Canberra community has been calling for more effective ways to deal with breaches of the Heritage Act and damage to heritage places and objects.
The Government is introducing a more flexible and responsive system of heritage directions and compliance notifications to improve the safe custodianship of our heritage for current and future generations.
The Government is strengthening 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.
The new processes will 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.
The Minister for the Environment and Heritage, Mick Gentleman MLA introduced the Heritage Amendment Bill 2019 to the Legislative Assembly on 24 October 2019. It is expected the Bill will be debated in early 2020. The Bill addresses concerns that people have not been penalised for minor to moderate damage because of limited tools to insist on repairs and introduce fines.
These amendments will allow the Heritage Council and Government to deal with matters quickly and effectively.
Repair damage directions
The ‘repair damage’ directions will give the Council the authority to direct people to repair any damage, if it can be repaired.
The provision will allow 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.
Directions will be able to be issued for any level of damage, from minor to severe. For example, unapproved works not in accordance with a heritage guideline or conservation management plan, or works not in accordance with a development or Heritage Act 2004 (Heritage Act) approval.
At present the Heritage Council can only issue directions to stop any ‘serious and imminent threat’ to a heritage place or object. This means the directions can’t be used after the damage has occurred and doesn’t apply to ‘minor damage’ (as opposed to ‘serious damage’).
The legislative change is clarifying the existing intent of the legislation and bringing the ACT into line with other Australian states and territories.
The Government will also introduce an infringement notice scheme where compliance officers can issue an immediate $1000 fine for damage to a heritage place, regardless of whether it can be repaired.
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 are limitations in the use of heritage directions for the protection of heritage places/objects. Currently section 62 heritage directions can only be issued for places at ‘serious’ and ‘imminent’ threat.
Because of this, section 62 heritage directions are unable to be used for minor to moderate offences due to the threshold wording of ‘serious’.
Amendments to section 62 heritage directions will 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
An infringement notice scheme will make it easier to penalise people who damage heritage places and objects.
Authorised compliance officers will be 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.
At present there is no heritage infringement notice scheme. The only option is to prosecute offenders is through the courts, which is drawn out, inflexible and can be difficult and costly to achieve for minor damage.
Infringement notices can only be issued for strict liability offences. 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.
Examples may include the unauthorised collection or disturbance of Aboriginal artefacts by an archaeologist undertaking their professional duties, unapproved minor works not in accordance with a heritage guideline or conservation management plan, or minor works not in accordance with a development or Heritage Act approval.
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 once the Heritage Amendment Bill has passed in the Assembly 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 Bill
- Heritage Act 2004
- 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 proposed legislation, please contact us: