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3.2 Commonwealth heritage protection law

3.2.1 Overview

Responsibility for heritage protection in Australia is split between Commonwealth, State and local government.

The Commonwealth is responsible for:

• World Heritage
• National Heritage, and
• Commonwealth Heritage Places.

The main Commonwealth law covering these areas is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The Commonwealth is also responsible for Indigenous heritage items and places under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

3.2.2 Australian Heritage Council and the National Estate

3.2.2.1 Register of the National Estate to be phased out

Heritage was first protected at the Commonwealth level under the Australian Heritage Commission Act 1975. The Commission listed heritage areas, and the list was known as the 'Register of the National Estate'. The Register included over 13,000 places relating to natural, Indigenous and historic heritage places.

In 2003, heritage protection at the Commonwealth level was moved to the EPBC Act. The Australian Heritage Commission was replaced by the Australian Heritage Council1 which was established under the Australian Heritage Council Act 2003.

The Australian Heritage Council is responsible for maintaining the Register of the National Estate.2 However, places on the National Estate Register do not receive any legal protection under either the Australian Heritage Council Act 2003 or the EPBC Act, other than that the Environment Minister must have regard to the Register when making a decision under the EPBC Act which is relevant to a place on the Register.3

The Commonwealth is in the process of phasing out the National Estate Register altogether. The Register was frozen on 19 February 2007,4 and by February 2012 all references to it in legislation will be removed after which its only role will be as a publicly available archive.

3.2.2.2 Functions of the Australian Heritage Council

The Australian Heritage Council is an independent body of heritage experts and is the main external body advising the Environment Minister on heritage matters.

Functions of the Australian Heritage Council under the EPBC Act include:

• Preparing proposed priority assessment lists each year for new nominations;5
• Nominating places itself for inclusion on the National List6 and Commonwealth Heritage lists;7
• Assessing places on the Finalised Priority Assessment Lists and advising the Environment Minister on the National Heritage List,8 and the Commonwealth Heritage List; and
• Advising the Minister on the List of Overseas Places of Historic Significance to Australia.9

3.2.3  World Heritage

World Heritage sites in Australia are listed, managed and protected under the EPBC Act.

The EPBC Act gives effect to Australia's international obligations10 under the Convention for the Protection of the World Cultural and Natural Heritage (1972) (World Heritage Convention). The World Heritage Convention protects cultural and natural sites of outstanding universal value.

3.2.3.1  How are places listed?

Only the Australian Government can nominate places in Australia for entry onto the World Heritage List.11 The World Heritage Committee, established under the World Heritage Convention,12 assesses each nomination and decides whether to enter a place on the World Heritage List.13 A property cannot be included on the World Heritage List without the consent of the State where the site is located.14

3.2.3.2 What is on the World Heritage List?

Sites on the World Heritage List include the Greater Blue Mountains Area, Fraser Island, the Sydney Opera House, and the Great Barrier Reef. The Ningaloo Coast in Western Australia is a nomination in progress.

To find out whether there are any World Heritage properties in your area of interest conduct an online Protected Matters Search.

3.2.3.3 How is World Heritage protected in Australia ?

Management plans

The EPBC Act requires the Commonwealth to prepare and implement management plans for all properties in Australia which are on the World Heritage List.15 The EPBC Regulations 2000 set out principles for the management of natural heritage and cultural heritage ( the Australian World Heritage management principles ).16

Prohibited actions

A person must not take an action that has, will have, or is likely to have a significant impact on the world heritage values of a declared World Heritage property without approval from the Environment Minister.17

A 'declared World Heritage property' is one which is already on the World Heritage List, or one which the Environment Minister 'declares' should be treated as World Heritage (eg because it is under threat).18

Each World Heritage property has its own world heritage values.19 It is the values, and not the site itself, which are protected. An action is likely to have a "significant impact" if there is a real chance or possibility that it will cause one or more of the World Heritage values to be lost, degraded, damaged or notably altered.20

Activities outside the World Heritage property which nevertheless affect the World Heritage values may still need approval.

For more information on the EPBC Act, see Fact Sheet 3.1.

3.2.3.4 Taking action to protect a World Heritage property in danger

If you think a World Heritage property might be in danger, you can:

• Report a potential breach of the EPBC Act to the Department of Sustainability, Environment, Water, Population and Communities

• Call the Environmental Defender's Office for advice on (02) 9262 6989, or 1300 369 791 if you are in the Northern Rivers region

List of World Heritage in Danger

The World Heritage Committee is required under the World Heritage Convention to keep a "List of World Heritage in Danger".21 The List can only include properties which are threatened by serious and specific dangers, such as large-scale public or private projects, tourist developments, and changes in water levels.22

3.2.4 National Heritage places

The EPBC Act allows places which are thought to be of outstanding heritage value to the nation to be listed, managed and protected.23

3.2.4.1 National Heritage List

National Heritage sites and their heritage values are recorded on the National Heritage List.24 A place that is included in the National Heritage List is called a National Heritage place.25

Natural, historic and Indigenous sites within Australia can be listed as National Heritage.26

3.2.4.2 How are places listed?

The Environment Minister ultimately decides whether to include a place on the List, although the Minister must follow the consultation process set out in the EPBC Act.27

The Minister must consult with the public and the Australian Heritage Council before listing a place.28

Under this process, there is an annual 12-month cycle (known as assessment periods ) in which the listing process works as follows:

• the Minister invites the public to nominate places for inclusion in the National Heritage list,29
• the Minister then gives the nominations to the Australian Heritage Council,30 which prepares and gives to the Minister the list of places which it thinks should be assessed (including any nominations by the Council itself),31
• the Minister finalises the list of places to be assessed,32
• the Australian Heritage Council invites the public to make comments about the finalised list,33
• the Australian Heritage Council assess the places on the finalised list and advises the Minister,34 and
• the Minister ultimately decides whether a place should be included on the National Heritage List.35

The Minister can make an emergency listing if the Minister believes that a place which is capable of meeting the criteria for National Heritage listing is under threat (and it is not already listed).36

3.2.4.3 What is on the National Heritage List?

The National Heritage List contains a full list of National Heritage places.

You can find out whether there are any National Heritage places in your area of interest by conducting an online Protected Matters Search.

3.2.4.4 How is National Heritage protected under the EPBC Act?

Management plans

The Minister must make a management plan to protect each National Heritage place which is within a Commonwealth area.39 The Minister must use his or her best endeavours to make plans for places that are in State or Territory areas.40 Management plans must not be inconsistent with National Heritage Management principles.41

Prohibited actions

A person must not take an action that has, will have, or is likely to have a significant impact on the heritage values of a listed National Heritage place without approval.42 It is an offence to do so.43 Under these provisions, it is the heritage values, rather than the site itself, which are protected.

For more information on how the EPBC Act works to protect National Heritage, see Fact Sheet 3.1.

3.2.5 Commonwealth Heritage Places

Heritage on Commonwealth land can be listed, managed and protected.44 The purpose of this type of listing is to give the Commonwealth greater control over heritage places which are located in areas that the Commonwealth owns or controls.

Commonwealth Heritage listing does not offer as much protection as National Heritage listing because, unlike National Heritage, Commonwealth Heritage is not listed as a matter of national environmental significance under the EPBC Act (see Fact Sheet 3.1 for more information on the EPBC Act and matters of national environmental significance).

3.2.5.1 Commonwealth Heritage List

Commonwealth heritage sites and their heritage values are recorded on the Commonwealth Heritage List.45 A place that is on the Commonwealth Heritage List is called a Commonwealth Heritage place.46

Natural, historic and Indigenous sites within Australia can be listed if they meet the criteria for listing and are in an area controlled by the Commonwealth.47

What areas are controlled by the Commonwealth?

A place can only be included on the Commonwealth Heritage List if it is:48

• on land owned or leased by the Commonwealth (or a Commonwealth agency),
• on land in an external Territory (including Antarctica, Christmas Island and Norfolk Island) or the Jervis Bay Territory,
• in Commonwealth waters,49 or
• outside Australia, but owned or leased by the Commonwealth.

3.2.5.2 How are places listed?

The Environment Minister ultimately decides whether to include a place on the Commonwealth Heritage List, although the Minister must follow the consultation process set out in the EPBC Act.50

The Minister must consult with the public and the Australian Heritage Council before listing a place.51

Under this process, there is an annual 12-month cycle (known as assessment periods ) in which the listing process works as follows:

• the Minister invites the public to nominate places for inclusion in the Commonwealth Heritage list,52
• the Minister then gives the nominations to the Australian Heritage Council,53 which then prepares and gives to the Minister the list of places which it thinks should be assessed (including any nominations by the Council itself),54
• the Minister finalises the list of places to be assessed,55
• the Australian Heritage Council invites the public to make comments about the finalised list,56
• the Australian Heritage Council assess the places on the finalised list and advises the Minister,57 and
• the Minister ultimately decides whether a place should be included on the Commonwealth Heritage List.58

Click here to see the Current Priority Assessment Lists.

The Minister can make an emergency listing if the Minister believes that a place which is capable of meeting the criteria for Commonwealth Heritage listing is under threat (and it is not already listed).59

3.2.5.3 What is on the Commonwealth Heritage List?

There are hundreds of places on the Commonwealth Heritage List. These places are often connected to defence, communications, customs and other government activities that reflect Australia's development as a nation.

You can find out whether there are any Commonwealth Heritage places in your area of interest by conducting an online Protected Matters Search.

3.2.5.4 How is Commonwealth Heritage protected?

Management plans

A Commonwealth agency must make a management plan to protect and manage the Commonwealth Heritage values of a Commonwealth Heritage place it owns or controls.62 The plan must address the matters set out in the Regulations,63 and must not be inconsistent with the Commonwealth Heritage Management principles.64 The plans are binding on the Commonwealth.65

Usual approval and offence provisions do not apply

Commonwealth Heritage is not included as a matter of national environmental significance under the EPBC Act. Thus, the usual approval and offence provisions which protect matters of national environmental significance under the EPBC Act do not apply. For more information on the EPBC Act, see Fact Sheet 3.1.

However, a Commonwealth agency must not take an action that has, will have, or is likely to have an adverse impact on the Commonwealth Heritage values of a Commonwealth Heritage place unless there is no feasible and prudent alternative and action is taken to mitigate the impacts.66

If an area is sold or leased which contains a Commonwealth Heritage place, then the contract for sale or lease must include provisions which protect the heritage values of the site.67

3.2.6 Overseas places of historic significance to Australia

Places can be listed which are overseas if they have historic significance to Australia.68

This list is symbolic in nature only: there are no enforcement provisions attached to the List.

3.2.6.1 List of Overseas Places of Historic Significance to Australia

The Environment Minister can decide to list a place on the List of Overseas Places of Historic Significance to Australia if the place is:

• outside Australia, and
• the Minister believes that it has outstanding historic significance to Australia.69

3.2.6.2 No public nominations or public consultation required

There are no provisions in the EPBC Act which allow the public to nominate a place to the List, nor is the Environment Minister required to consult with the public before making a listing (although other Ministers must be informed70 ).

Before listing a place, the Environment Minister can seek advice from the Australian Heritage Council if the Minister so wishes.71

3.2.6.3 What is on the List of Overseas Places?

There are currently three sites on the List of Overseas Places:

• Anzac Cove, Gallipoli
• Kokoda Track, Papua New Guinea
• Howard Floreys Laboratory, United Kingdom (where penicillin was developed).

3.2.7 Indigenous heritage protection

3.2.7.1 EPBC Act heritage protection

Indigenous heritage sites can be protected under the EPBC Act as World Heritage, National Heritage or Commonwealth Heritage if the site concerned meets the criteria for the relevant list (see this Fact Sheet for further information).

3.2.7.2 Aboriginal and Torres Strait Islander Heritage Protection Act 1984

Objects (artifacts and Aboriginal remains) and areas which are of particular significance to Aboriginal peoples and traditions are protected from injury or desecration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ( ATSIHP Act ).72

To activate protection under the ATSIHP Act there must be a declaration in place protecting a particular area (a significant Aboriginal area) or object.

Declarations in relation to areas and objects

An Aboriginal person or Torres Strait Islander can ask the Environment Minister to make a declaration protecting an Aboriginal area or object (including Aboriginal remains) from injury or desecration.73

Before making a declaration regarding an area, the Environment Minister must obtain a report advising the Minister of the need for, and impacts of, making such a declaration.74 The report must be published in the Gazette and a local newspaper inviting interested persons to make submissions.75

All declarations must be published in the Gazette and in a local newspaper in the region,76 and the Minister must give written notice of the declaration to people likely to be substantially affected (although failure to do so will not invalidate a declaration).77

Declarations (including emergency declarations) are legally enforceable.78 If it appears that a declaration might be breached, the Federal Court can issue an injunction to restrain the activity.79

Emergency declarations

If there is a serious and immediate threat of injury or desecration to an Aboriginal area, an Aboriginal or Torres Strait Islander can ask the Environment Minister to make an emergency declaration which lasts for 30 days (which can be extended to 60 days).80

Officers authorised by the Minister under the ATSIHP Act can also make emergency declarations regarding areas or objects lasting up to 48 hours.81

Protection under State or Territory law must be ineffective

If the Aboriginal area or object is located in a State or Territory (and not on Commonwealth land), the Environment Minister must only make a declaration if the Environment Minister has consulted the relevant State Minister and is satisfied that State or Territory law does not effectively protect the area or object.82

How is an application made?

Applications for a declaration can be made orally or in writing. They can be made by an individual or a group (but they must be Aboriginal or Torres Strait Islander). Applicants can apply for legal and financial assistance under the ATSIHP Act.83

3.2.8 Movable cultural heritage

Movable cultural heritage includes things such as artifacts and artwork, fossils, books, stamps and military medals, and even aircraft. Movable cultural heritage is often traded between nations.

3.2.8.1 Protection of Movable Cultural Heritage Act 1986

In Australia, this trade is regulated under the Protection of Movable Cultural Heritage Act 1986 ( PMCH Act ).84 The legislation does not affect a person's right to own or sell movable cultural heritage within Australia.

The PMCH Act implements Australia's obligations under the UNESCO Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property.

It is unlawful to export a "protected object" without a certificate or permit from the Environment Minister.85

An object is taken to be exported at the time that it is placed on board a ship or aircraft with the intention that it be taken out of Australia, or when it is delivered to Australia Post.86

National Cultural Heritage Control List

"Protected objects" which are subject to export control are listed in the National Cultural Heritage Control List in Schedule 1 of the PMCH Regulations 1987.87

The following nine categories of objects make up the Control List:

• objects of Australian Aboriginal and Torres Strait Islander Heritage (including sacred and secret objects, and human remains)
• archaeological objects (such as objects from shipwrecks)
• natural science objects (such as gold nuggets, gemstones and meteorites)
• objects of applied science or technology (such as tools, weapons, machines and aircraft)
• objects of fine or decorative art (such as musical instruments and paintings)
• objects of documentary heritage (such as books, letters and films)
• numismatic objects (such as Victoria Cross medals)
• philatelic objects (stamps)
• objects of historical significance (such as Ned Kelly's armour).

The Regulations (Sch 1) contain a detailed description of the objects covered by each category.

1. The Australian Heritage Commission Act 1975 was repealed by the Australian Heritage Council (Consequential and Transitional Provisions Act 2003 : Sch 1.1.
2. Australian Heritage Council Act 2003, Part 5, s 21. All of the places on the old Register of the National Estate under the Australian Heritage Commission were carried across to the new list managed by the Australian Heritage Council: Australian Heritage Council Act 2003, s 22(5).
3. EPBC Act, s 391A.
4. Australian Heritage Council Act 2003, s 24AA.
5. Amendments to the EPBC Act which took effect on 19 February 2007 ( Environment and Heritage Legislation Amendment Act (No 1) 2006 ) require the Australian Heritage Council to prepare annual priority assessment lists of new nominations for National Heritage and Commonwealth Heritage, which, if approved by the Minister, become Finalised Priority Assessment lists: EPBC Act, s 324E - 324JJ, and s 341E - 341JI.
6. EPBC Act, s 324JB(3)(b).
7. EPBC Act, s 341JA(3)(b).
8. EPBC Act, Part 15, s 324A - 324R.
9. EPBC Act, s 390P, and 390R.
10. EPBC Act replaced the World Heritage Properties Conservation Act 1983 (Cth) .
11. EPBC Act, s 314 requires the Environment Minister to use its best endeavours with the relevant State or person before submitting the listing.
12. World Heritage Convention, Article 8.
13. World Heritage Convention, Article 12(2).
14. World Heritage Convention, Article 11(3).
15. EPBC Act, Part 15, Division 1 (Managing World Heritage properties): s 316 and 320.
16. EPBC Act, s 323(1): and EPBC Regulations 2000, cl. 10.01. The principles are set out in Sch 5 of the Regulations.
17. EPBC Act, s 12 (1).
18. EPBC Act, s 13 and 14.
19. EPBC Act, s 12 (3). The world heritage values for each site are described on the Federal Government's EPBC Act website at http://www.environment.gov.au/heritage/places/world/index.html
20. See EPBC Act Significant Impact Guidelines 1.1 - Matters of National Environmental Significance (October 2009), pages 17 - 19, which provides guidance on determining whether an action is likely to have a significant impact. The Guidelines can be viewed at http://www.environment.gov.au/epbc/publications/nes-guidelines.html
21. World Heritage Convention, Article 11(4).
22. See the World Heritage Convention, Article 11(4) for other examples of threats that might make a site eligible for the "List of World Heritage in Danger".
23. EPBC Act, Part 15, Division 1A, ss 324 A - 324 ZC.
24. EPBC Act, s 324 C
25. EPBC Act, s 324 D(2).
26. EPBC Act, s 324 D, and EPBC Regulations 2000, cl. 10.01A.
27. EPBC Act, s 324 JJ.
28. See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1, items 550 - 563; and EPBC Act, ss 324 E - 324 R.
29. EPBC Act, s 324 J.
30. EPBC Act, s 324 JA.
31. EPBC Act, s 324 JB - 324 JD.
32. EPBC Act, s 324 JE.
33. EPBC Act, s 324 JF - 324 JG.
34. EPBC Act, s 324 JH.
35. EPBC Act, s 324 JJ, and s 324 C(2).
36. EPBC Act, s 324 JK - 324 JQ.
37. EPBC Act, s 324 J, and EPBC Regulations 2000, Reg 10.01B.
38. The EPBC Act, 324 D requires the criteria for listing to be prescribed by the Regulations: see EPBC Regulations 2000, Reg. 10.01A.
39. EPBC Act, s 324 S, EPBC Regulations 2000 cl 10.01C and Sch 5, and cl 10.01D.
40. EPBC Act, s 324 X.
41. EPBC Act, s 324 S(4)(b), and 324 X(2). The principles are set out in Sch 5A of the EPBC Regulations 2000: cl 10.01C.
42. EPBC Act, s 15 B.
43. EPBC Act, s 15 C.
44. See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1; and EPBC Act, ss 341 A - 341 ZH.
45. EPBC Act, s 341 C(1).
46. EPBC Act, s 341 C(3).
47. EPBC Act, s 341 D, and EPBC Regulations 2000, cl. 10.03 A(2) set out the criteria.
48. EPBC Act, s 341 C(2); and s 525 defines a "Commonwealth area".
49. EPBC Act, s 525 (3): note that coastal waters of States (territorial waters) are not Commonwealth waters.
50. EPBC Act, s 341 JI.
51. See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1; and EPBC Act, ss 341 E - 341 R.
52. EPBC Act, s 341 H.
53. EPBC Act, s 341 J.
54. EPBC Act, s 341 JA - 341 JC.
55. EPBC Act, s 341 JD and 341 JE.
56. EPBC Act, s 341 JF.
57. EPBC Act, s 341 JG.
58. EPBC Act, s 341 JI, and s 341 C(2).
59. EPBC Act, s 341 JJ - 341 JP.
60. EPBC Act, s 341 H, and EPBC Regulations 2000, cl. 10.03 AB.
61. The EPBC Act, 341 D requires the criteria for listing to be prescribed by the Regulations: see EPBC Regulations 2000, cl. 10.03A.
62. EPBC Act, s 341 S.
63. EPBC Act, s 341 S(4)(a), and EPBC Regulations 2000, cl. 10.03 B, Sch 7A.
64. EPBC Act, s 341 S(4)(b), 341 Y; and EPBC Regulations 2000, cl. 10.03D, Sch 7B.
65. EPBC Act, s 341 V.
66. EPBC Act, s 341 ZC.
67. EPBC Act, s 341 ZE.
68. See Environment and Heritage Legislation Amendment Act (No 1) 2006, Sch 1, which inserted Chapter 5A, Part 15A, ss 390 K - 390 R into the EPBC Act.
69. EPBC Act, s 390 L.
70. EPBC Act, s 390 N.
71. EPBC Act, s 390 P.
72. ATSI Act, s 4 (Purposes of Act).
73. ATSI Act, s 10 (Declarations in relation to areas), and s 12 (Declarations in relation to objects).
74. ATSI Act, s 10.
75. ATSI Act, s 10(3).
76. ATSI Act, s 14(1), and s 14(2)(a).
77. ATSI Act, s 14(3).
78. ATSI Act, s 22, 23, 25
79. ATSI Act, s 26.
80. ATSI Act, s 9.
81. ATSI Act, s 17 and s 18.
82. ATSI Act, s 13.
83. ATSI Act, s 30.
84. Also see the Protection of Movable Cultural Heritage Regulations 1987.
85. PMCH Act, s 9. Unlawful exporting may mean the object is forfeited and can attract a maximum penalty for an individual of $110,000 or 5 years imprisonment, or for a corporation, a fine of up to $220,000. Section 46 makes it an indictable offence.
86. PMCH Act, s 9(4).
87. PMCH Act, s 8, and PMHC Regulations 1987, cl 4.

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