Heritage (Amendment) Act 2000

i Heritage (Amendment) Act 2000 Act No. 70/2000 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. New section 32 substituted 2 32. Decision of Executive Director on nomination 2 4. Statement on recommendation to include in Register 3 5. Insertion of new section 34A 3 34A. Statement of recommendation that a place or object should not be registered 3 6. Publication of notice of recommendation 4 7. Substitution of section 36 5 36. Obligations of the owner 5 8. Submissions 7 9. Repeal of section 39 7 10. Procedure of Heritage Council 8 11. New section 42 substituted 8 42. Decision of Heritage Council 8 12. Notice of intention to sell registered place or object 10 13. Liturgical exemptions 10 14. Matters to be considered in determining applications for permits 11 15. Delegation 11 16. Offence to be near historic shipwreck 11 17. Insertion of new section 118A 12 118A. Permits for the use of historic shipwreck relics 12 18. Insertion of new section 126A 13 126A. Permits for the use of archaeological relics 13 19. Powers of entry—generally 13 20. Insertion of new sections 150A to 150D 13 150A. Search warrant for residence 13 150B. Announcement before entry of residence on warrant 15 150C. Copy of warrant to be given to occupier 15 150D. Powers of inspectors on entry on warrant 16 21. Power to require production of permit or consent 16 22. New section 159A inserted 17 159A. Confidentiality 17 23. New Division 5 inserted in Part 10 17 -- 1 of 21 -- Section Page ii Division 5—Transitional Provision arising from Heritage (Amendment) Act 2000 18 213A. Transitional provision 18 ═══════════════ ENDNOTES 19 -- 2 of 21 -- 1 Heritage (Amendment) Act 2000 † [Assented to 21 November 2000] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Heritage Act 1995— (a) to make further provision for the heritage registration process; (b) to enable the Executive Director to permit the use of certain relics for certain purposes; Victoria No. 70 of 2000 -- 3 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 2 (c) to make further provision for the powers of inspectors to enter registered residential premises; (d) to provide for other miscellaneous matters. 2. Commencement (1) Subject to sub-section (2), the provisions of this Act come into operation on a day or days to be proclaimed. (2) If a provision referred to in sub-section (1) does not come into operation before 1 August 2001, it comes into operation on that day. 3. New section 32 substituted For section 32 of the Heritage Act 1995, substitute— "32. Decision of Executive Director on nomination (1) After considering a nomination and any further information given under section 28, the Executive Director may— (a) recommend to the Heritage Council that the place or object be included in the Heritage Register and the category or categories in which it should be included; or (b) recommend to the Heritage Council that the place or object should not be included in the Heritage Register. (2) If the Executive Director recommends to the Heritage Council that a place not be included in the Heritage Register, the Executive Director may refer the nomination to the relevant planning authority or the Minister administering the Planning and Environment Act 1987 for inclusion of the s. 2 -- 4 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 3 place in a planning scheme in accordance with the objectives set out in section 4(1)(d) of that Act.". 4. Statement on recommendation to include in Register (1) In section 34 of the Heritage Act 1995 for sub- section (1) substitute— "(1) If the Executive Director recommends to the Heritage Council that a place or object be included in the Heritage Register, the Executive Director must give a statement in accordance with this section to— (a) the owner of the place or object; and (b) the nominator of the place or object; and (c) the relevant municipal council.". (2) In section 34(2) of the Heritage Act 1995 for paragraph (e) substitute— "(e) advise the owner that the owner may— (i) make a submission on the recommendation to the Heritage Council at any time within that period of 60 days; and (ii) request a hearing in relation to that submission; and". 5. Insertion of new section 34A After section 34 of the Heritage Act 1995 insert— "34A. Statement of recommendation that a place or object should not be registered (1) If the Executive Director recommends to the Heritage Council that a place or object should not be included in the Heritage s. 4 -- 5 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 4 Register, the Executive Director must give a statement in accordance with this section to— (a) the owner of the place or object; and (b) the nominator of the place or object; and (c) the relevant municipal council. (2) A statement under sub-section (1) must— (a) be in writing; and (b) set out the terms of the recommendation; and (c) set out the reasons for the recommendation; and (d) set out an assessment of the cultural heritage significance of the place or object; and (e) advise the owner or nominator that the Heritage Council will make a decision on the recommendation after a period of 60 days from the date of the notice of that recommendation published under section 35; and (f) advise the owner that the owner may— (i) make a submission on the recommendation to the Heritage Council at any time within that period of 60 days; and (ii) request a hearing in relation to that submission; and (g) advise the owner and the nominator of the provisions of sections 41 and 42.". 6. Publication of notice of recommendation s. 5 -- 6 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 5 In section 35 of the Heritage Act 1995 for "under section 32(c)" substitute "under section 32(1)". 7. Substitution of section 36 For section 36 of the Heritage Act 1995 substitute— '36. Obligations of the owner (1) In this section "Heritage Council decision" means a decision of the Heritage Council under section 42. (2) This section applies to the owner of a place or object to whom a statement has been given under section 34 or 34A. (3) The owner of a place or object must advise the Executive Director of— (a) any works that are being carried out in relation to the place or object at the time the statement is given; and (b) any application for a planning permit or a building permit or for an amendment to a planning permit that has been made in relation to the place, but not determined at the time the statement is given; and (c) any other activities that are being carried out or are proposed to be carried out in relation to the place or object at the time the statement is given. (4) An advice under sub-section (3) must be given within 10 days after the statement is given under section 34 or 34A. (5) If, before the Heritage Council decision on a place— -- 7 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 6 (a) an application for a planning permit or a building permit or for an amendment to a planning permit in relation to the place is made; or (b) a planning permit or building permit or an amendment to a permit in relation to the place is granted— the owner of the place must advise the Executive Director of the application, permit or amendment. (6) An advice under sub-section (5) must be given within 10 days after the making of the application or the grant of the permit or amendment. (7) If, before the Heritage Council decision on a place or object— (a) any activities are carried out in relation to the place or object that could adversely affect the place or object; or (b) any activities are proposed to be carried out in relation to the place or object that could adversely affect the place or object— the owner of the place or object must advise the Executive Director of the activity or proposal. (8) An advice under sub-section (7) must be given within 10 days after the owner becomes aware of the activity or the proposal, as the case requires. (9) If, before the Heritage Council decision on a place or object, a proposal is made to dispose of the whole or any part of the place or s. 7 -- 8 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 7 object, the owner of the place or object must advise the Executive Director of that proposal. (10) An advice under sub-section (9) must be given at least 10 days before entering into the contract for the disposal of the place or object. (11) The owner of the place or object who proposes to dispose of the whole or any part of the place or object before the Heritage Council decision on the place or object must, before entering into a contract for that disposal, give a copy of the statement under section 34 or 34A to the person who, under the proposed contract, is to acquire the place or object or part of the place or object. (12) An advice to the Executive Director under this section must be in writing. (13) An owner of a place or object must comply with this section. Penalty: in the case of a natural person: 50 penalty units; and in the case of a body corporate: 100 penalty units.'. 8. Submissions (1) In section 38(1) of the Heritage Act 1995, for paragraph (b) substitute— "(b) a recommendation of the Executive Director that a nominated place or object should not be included in the Heritage Register.". (2) In section 38(2) of the Heritage Act 1995, for "sub-section (1)(a)" substitute "sub-section (1)". 9. Repeal of section 39 s. 8 -- 9 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 8 Section 39 of the Heritage Act 1995 is repealed. 10. Procedure of Heritage Council (1) In section 40 of the Heritage Act 1995 for "section 38(1)(a)" substitute "section 38(1)". (2) In section 41(1)(b) of the Heritage Act 1995 omit "for registration". 11. New section 42 substituted For section 42 of the Heritage Act 1995 substitute— "42. Decision of Heritage Council (1) After considering a recommendation and any submissions and conducting any hearing into those submissions, the Heritage Council may— (a) in the case of any recommendation, determine that a place or object or part of a place is not of cultural heritage significance and does not warrant inclusion in the Heritage Register; or (b) if the recommendation is to include a place or object in the Heritage Register— (i) determine that the place or object is of cultural heritage significance and should be included in the Heritage Register; or (ii) determine that part of the place is of cultural heritage significance and should be included in the Heritage Register; or -- 10 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 9 (c) if the recommendation is that the place or object should not be included in the Heritage Register— (i) if the Heritage Council considers that the place or object may be of cultural heritage significance, make a provisional determination to include the place or object in the Heritage Register; or (ii) if the Heritage Council considers that part of the place may be of cultural heritage significance, make a provisional determination to include that part of the place in the Heritage Register; or (d) in the case of any recommendation, refuse to register the place and— (i) refer the recommendation and submissions to the relevant planning authority for consideration for an amendment to a planning scheme; or (ii) determine that it is more appropriate for steps to be taken under the Planning and Environment Act 1987 or by any other means to protect or conserve the place or object. (2) If the Heritage Council determines to include a place in the Heritage Register, it may also, with the consent of the owner of the place, determine to include in the Heritage Register s. 11 -- 11 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 10 additional land of the owner which is ancillary to that place. (3) Division 2 and this Division apply to a determination under sub-section (1)(c) as if it were a recommendation of the Executive Director to include the place or object or part of the place in the Heritage Register. (4) In determining that a place or object or part of a place should be registered, the Heritage Council may also determine the works and activities that can be carried out at the place or in relation to the object without the need for a permit under this Act. (5) If a member of the Heritage Council has made a submission under section 38(1) in respect of a recommendation, that member must not take part in the consideration or determination of the Heritage Council on that submission. (6) The Heritage Council must notify the Executive Director of any determination under this section.". 12. Notice of intention to sell registered place or object In section 52(1) of the Heritage Act 1995, for "that place or object" substitute "the whole or any part of that place or object". 13. Liturgical exemptions At the end of section 65 of the Heritage Act 1995 insert— s. 12 -- 12 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 11 "(2) A notice under sub-section (1) must be in the prescribed form.". 14. Matters to be considered in determining applications for permits In section 73 of the Heritage Act 1995, after sub- section (1) insert— "(1A) In determining an application for a permit, the Executive Director may consider— (a) the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is— (i) subject to a heritage requirement or control in the relevant planning scheme; or (ii) included in the Heritage Register; and (b) any other relevant matter.". 15. Delegation At the end of section 84 of the Heritage Act 1995 insert— "(2) Despite sub-section (1), a responsible authority, having first obtained the written consent of the Executive Director, may, by instrument, sub-delegate to an officer of the responsible authority any of the Executive Director's functions under this Division which have been delegated to the authority.". 16. Offence to be near historic shipwreck In section 112 of the Heritage Act 1995 for sub- section (2) substitute— s. 16 -- 13 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 12 "(2) This section does not apply to— (a) a person holding a permit under the Navigation Act 1912 of the Commonwealth; or (b) the holder of an access licence or general permit under the Fisheries Act 1995 carrying out an activity under that licence or permit.". 17. Insertion of new section 118A After section 118 of the Heritage Act 1995 insert— "118A. Permits for the use of historic shipwreck relics (1) This section applies to historic shipwreck relics in the custody or control of the Executive Director. (2) The Executive Director may grant a permit to any person for the use of an historic shipwreck relic for the purposes of study, conservation or exhibition. (3) The Executive Director may impose any conditions on the permit that the Executive Director thinks fit. (4) A permit under this section remains in force for the period of time specified in the permit. (5) An application for a permit must be in the form approved by the Executive Director. (6) The applicant must pay the prescribed fee (if any) for a permit. (7) A person who is the holder of a permit must comply with the permit. Penalty: 10 penalty units.". -- 14 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 13 18. Insertion of new section 126A After section 126 of the Heritage Act 1995 insert— "126A. Permits for the use of archaeological relics (1) This section applies to archaeological relics in the custody or control of the Executive Director. (2) The Executive Director may grant a permit to any person for the use of an archaeological relic for the purposes of study, conservation or exhibition. (3) The Executive Director may impose any conditions on the permit that the Executive Director thinks fit. (4) A permit under this section remains in force for the period of time specified in the permit. (5) An application for a permit must be in the form approved by the Executive Director. (6) The applicant must pay the prescribed fee (if any) for a permit. (7) A person who is the holder of a permit must comply with the permit. Penalty: 10 penalty units.". 19. Powers of entry—generally In section 150(4)(a) of the Heritage Act 1995 after "photographs" insert "(including video recordings)". 20. Insertion of new sections 150A to 150D After section 150 of the Heritage Act 1995 insert— "150A. Search warrant for residence s. 18 -- 15 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 14 (1) An inspector may apply to a magistrate for the issue of a search warrant in relation to a particular registered place which is a residence if the inspector believes on reasonable grounds that there is, or may be within the next 72 hours, on the place a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (2) A magistrate may issue a search warrant under this section if the magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on a registered place that is a residence a particular thing that may be evidence of the commission of an offence against this Act or the regulations. (3) The search warrant may authorise an inspector named in the warrant and any assistants the inspector considers necessary— (a) to enter the place, or the part of the place, named or described in the warrant; and (b) to search for a thing named or described in the warrant. (4) In addition to any other requirement, a search warrant issued under this section must state— (a) the offence suspected; and (b) the place to be searched; and -- 16 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 15 (c) a description of the thing for which the search is to be made; and (d) any conditions to which the warrant is subject; and (e) whether entry is authorised to be made at any time or during stated hours; and (f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act. (6) The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section. 150B. Announcement before entry of residence on warrant (1) Before executing a search warrant, the inspector named in the warrant or a person assisting the inspector must announce that he or she is authorised by the warrant to enter the place and give any person at the place an opportunity to allow entry to the place. (2) The inspector or a person assisting the inspector need not comply with sub-section (1) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. 150C. Copy of warrant to be given to occupier s. 20 -- 17 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 16 If the occupier or another person who apparently represents the occupier is present at a place when a search warrant is being executed, the inspector must— (a) identify himself or herself to that person by producing his or her identity card for inspection by that person; and (b) give to that person a copy of the execution copy of the warrant. 150D. Powers of inspectors on entry on warrant An inspector who exercises a power of entry of a place under section 150A may if the thing searched for is found during the search— (a) inspect and take photographs (including video recordings), or make sketches, of the place or the thing; and (b) inspect and make copies of, or take extracts from, the thing if it is a document.". 21. Power to require production of permit or consent (1) In section 151(2) of the Heritage Act 1995 for "Sub-section (1)(b)" substitute "Subject to sub- section (2A), sub-section (1)(b)". (2) After section 151(2) of the Heritage Act 1995 insert— "(2A) An inspector may, under sub-section (1)(b), require a person who holds a permit or consent to leave a place if the person fails to produce the permit or consent to the inspector on being requested to do so.". (3) In section 151(3) of the Heritage Act 1995— s. 21 -- 18 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 17 (a) in paragraph (a) for "this section" substitute "sub-section (1)"; and (b) in paragraph (b) after "furnish" insert "under this section". 22. New section 159A inserted After section 159 of the Heritage Act 1995 insert— "159A. Confidentiality (1) An inspector must not, except to the extent necessary— (a) to carry out functions or to exercise powers under this Act or the regulations; or (b) in connection with the administration or enforcement of this Act or the regulations; or (c) to give any information the inspector is authorised, permitted or required to give under this Act or any other Act or the regulations under this Act— give to any other person, whether directly or indirectly, any information gained in the exercise of the powers as an inspector. Penalty: 20 penalty units. (2) Sub-section (1) does not prevent the giving of information— (a) for the purpose of any legal proceedings arising out of this Act or the regulations, or of any report of those proceedings; or (b) with the consent of the Minister.". 23. New Division 5 inserted in Part 10 s. 22 -- 19 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 18 In Part 10 of the Heritage Act 1995 after Division 4 insert— "Division 5—Transitional Provision arising from Heritage (Amendment) Act 2000 213A. Transitional provision This Act as in force immediately before the commencement of section 3 of the Heritage (Amendment) Act 2000, continues to apply in respect of any decision or recommendation of the Executive Director made before that commencement.". ═══════════════ -- 20 of 21 -- Act No. 70/2000 Heritage (Amendment) Act 2000 19 ENDNOTES † Minister's second reading speech— Legislative Assembly: 5 October 2000 Legislative Council: 26 October 2000 The long title for the Bill for this Act was "to amend the Heritage Act 1995 and for other purposes." Endnotes -- 21 of 21 --