Heritage (Amendment) Act 2003

Victorian Legislation and Parliamentary Documents i Heritage (Amendment) Act 2003 Act No. 74/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Principal Act 2 PART 2—AMENDMENTS TO THE HERITAGE ACT 1995 3 4. National Trust entitled to notice 3 5. Amendments to penalty provisions 3 6. Certain activities prohibited 4 7. Prohibition of certain activities in relation to historic shipwrecks and historic shipwreck relics 4 8. New sections 150E, 150F and 150G inserted 4 150E. Court order for entry to residence 4 150F. Announcement before entry of residence using order 6 150G. Powers on entry using order 6 9. Failure to comply with order under section 162 7 10. Prosecution of offences 7 11. New section 183A inserted 7 183A. Powers of court with respect to contravention 7 12. New Division 6 of Part 10 inserted 8 Division 6—Transitional Provisions arising from Heritage (Amendment) Act 2003 8 213B. Application of amendments made by the Heritage (Amendment) Act 2003 8 13. Statute law revision 9 PART 3—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989 10 14. Amendment to Schedule 4 to the Magistrates' Court Act 1989 10 ═══════════════ ENDNOTES 11 -- 1 of 12 -- Victorian Legislation and Parliamentary Documents 1 Heritage (Amendment) Act 2003† [Assented to 21 October 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Heritage Act 1995— (i) to increase penalties for certain offences under that Act; and (ii) to give the court a power to make any order it considers appropriate to remedy or restrain a breach of the Act if a Victoria No. 74 of 2003 -- 2 of 12 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Heritage (Amendment) Act 2003 Act No. 74/2003 2 person is found guilty or convicted of an offence under that Act; and (iii) to give the Magistrates' Court the power to make an order permitting entry to a residence, for the purpose of investigating its cultural heritage significance, if the residence is unoccupied or if entry has been refused by the occupier; (b) to make further provision in the Magistrates' Court Act 1989 to enable certain indictable offences under the Heritage Act 1995 to be tried in the Magistrates' Court. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3. Principal Act In this Act the Heritage Act 1995 is called the Principal Act. __________________ s. 2 See: Act No. 93/1995. Reprint No. 3 as at 1 April 2001 and amending Act Nos 11/2001 and 11/2002. LawToday: www.dms. dpc.vic. gov.au -- 3 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 3 PART 2—AMENDMENTS TO THE HERITAGE ACT 1995 4. National Trust entitled to notice In section 78A of the Principal Act, for "78(3)" substitute "78(4)". 5. Amendments to penalty provisions (1) In section 124(3) of the Principal Act— (a) for "20 penalty units" substitute "60 penalty units"; and (b) for "40 penalty units" substitute "120 penalty units". (2) In sections 36(13), 59(1), 107(1), 107(2), 107(3), 108(2), 112(1), 115(1), 115(3), 115(5), 128, 130(2), 131(1), 132(1), 132(2), 133(3) and 134(1) of the Principal Act— (a) for "50 penalty units" substitute "120 penalty units"; and (b) for "100 penalty units" substitute "240 penalty units". (3) In section 129(5) of the Principal Act— (a) for "50 penalty units" substitute "240 penalty units"; and (b) for "100 penalty units" substitute "480 penalty units". (4) In sections 109(4), 110(1), 111(6) and 113(7) of the Principal Act— (a) for "100 penalty units" substitute "240 penalty units"; and (b) for "200 penalty units" substitute "480 penalty units". s. 4 -- 4 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 4 (5) In sections 127(1) and 127(2) of the Principal Act— (a) for "120 penalty units" substitute "600 penalty units"; and (b) for "240 penalty units" substitute "1200 penalty units". (6) In sections 64(1), 64(2), 64(3), 111(1) and 164 of the Principal Act— (a) for "1500 penalty units" substitute "2400 penalty units"; and (b) for "3000 penalty units" substitute "4800 penalty units". 6. Certain activities prohibited After section 64(4) of the Principal Act insert— "(5) An offence against sub-section (1), (2) or (3) is an indictable offence.". 7. Prohibition of certain activities in relation to historic shipwrecks and historic shipwreck relics After section 111(1) of the Principal Act insert— "(1A) An offence against sub-section (1) is an indictable offence.". 8. New sections 150E, 150F and 150G inserted After section 150D of the Principal Act insert— '150E. Court order for entry to residence (1) An inspector or a person authorised by the Heritage Council ("authorised person") may apply to a magistrate for an order permitting entry to a residence, other than a registered place, for the purpose of investigating its cultural heritage significance if— s. 6 -- 5 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 5 (a) the occupier of the residence refuses to give written consent to entry under section 150(2); or (b) after reasonable efforts have been made by the inspector or authorised person to locate the occupier, the inspector or authorised person is satisfied the residence is unoccupied. (2) The inspector or authorised person must serve a copy of an application under sub- section (1)(a) on the occupier of the residence, not later than 14 days before the day for hearing the application. (3) The magistrate may make an order under this section if the magistrate is satisfied— (a) by evidence on oath, whether oral or by affidavit, of the matters set out in sub- section (1); and (b) that entry is warranted in all the circumstances. (4) An order under this section— (a) must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect; and (b) may authorise an inspector or authorised person named in the order and any assistants the inspector or authorised person considers necessary to enter the residence described in the order. (5) An order made under this section has effect and may be enforced as if it were an order or judgment made by the Magistrates' Court under the Magistrates' Court Act 1989. s. 8 -- 6 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 6 (6) In this section, "residence" means a building or part of a building ordinarily used as a residence. 150F. Announcement before entry of residence using order (1) Before attempting to enter a residence under an order under section 150E, the inspector or authorised person, or a person assisting the inspector or authorised person— (a) must announce that he or she is authorised by the order to enter the residence; and (b) give any person at the residence an opportunity to allow entry to the residence. (2) If the occupier or another person who apparently represents the occupier is present at a residence when the inspector or authorised person enters it under an order under section 150E, the inspector or authorised person must— (a) identify himself or herself to that person by producing for inspection— (i) his or her identity card in the case of an inspector; or (ii) the authorisation of the Heritage Council in the case of an authorised person; and (b) give to that person a copy of the order. 150G. Powers on entry using order An inspector or authorised person, or a person assisting the inspector or authorised person, acting in accordance with an order under section 150E may— s. 8 -- 7 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 7 (a) take photographs (including video recordings); and (b) make measurements and sketches; and (c) use any other means of recording information necessary for the purposes of this Act.'. 9. Failure to comply with order under section 162 At the end of section 164 of the Principal Act insert— "(2) An offence against sub-section (1) is an indictable offence.". 10. Prosecution of offences At the end of section 175 of the Principal Act insert— "(2) This section does not apply to any indictable offence under this Act.". 11. New section 183A inserted After section 183 of the Principal Act insert— "183A. Powers of court with respect to contravention (1) If, in proceedings for an offence under this Act, a person is found guilty or convicted of that offence, the court may make any order that it considers appropriate to remedy or restrain the contravention that constitutes the offence. (2) Without limiting the powers of the court under sub-section (1), an order made under that sub-section may— s. 9 -- 8 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 8 (a) if the contravention constituting the offence comprises the construction of a building or the carrying out of works, require the demolition or removal of the building or works; or (b) if the contravention constituting the offence has the effect of altering the appearance or physical nature of a place or the state of land on which there is a registered place or registered object, require the restoration or reinstatement, so far as is possible, of the place or object to the condition it was in immediately before the contravention. (3) An order made under this section may be enforced in the court by which it was made by any means available to that court of enforcing an order made by it in a civil proceeding. (4) This section does not affect the operation of section 168.". 12. New Division 6 of Part 10 inserted After Division 5 of Part 10 of the Principal Act insert— "Division 6—Transitional Provisions arising from Heritage (Amendment) Act 2003 213B. Application of amendments made by the Heritage (Amendment) Act 2003 (1) Sections 64(5), 111(1A) and 164(2) only apply to offences alleged to have been committed on or after the commencement of the Heritage (Amendment) Act 2003. s. 12 -- 9 of 12 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to the Heritage Act 1995 Heritage (Amendment) Act 2003 Act No. 74/2003 9 (2) For the purposes of sub-section (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement of the Heritage (Amendment) Act 2003, the offence is alleged to have been committed before that commencement.". 13. Statute law revision (1) Part 11 of the Principal Act is repealed. (2) Schedule 2 to the Principal Act is repealed. __________________ s. 13 -- 10 of 12 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to the Magistrates' Court Act 1989 Heritage (Amendment) Act 2003 Act No. 74/2003 10 PART 3—AMENDMENTS TO THE MAGISTRATES' COURT ACT 1989 14. Amendment to Schedule 4 to the Magistrates' Court Act 1989 In item 61 of Schedule 4 to the Magistrates' Court Act 1989, for "Part 5" substitute "Part 4, Part 5 and Part 8". ═══════════════ s. 14 See: Act No. 51/1989. Reprint No. 9 as at 7 May 2003 and amending Act Nos 27/2002, 28/2003, 39/2003 and 52/2003. LawToday: www.dms. dpc.vic. gov.au -- 11 of 12 -- Victorian Legislation and Parliamentary Documents Heritage (Amendment) Act 2003 Act No. 74/2003 11 ENDNOTES † Minister's second reading speech— Legislative Assembly: 27 August 2003 Legislative Council: 7 October 2003 The long title for the Bill for this Act was "to amend the Heritage Act 1995 and the Magistrates' Court Act 1989 and for other purposes." Endnotes -- 12 of 12 --