Table of Contents

Discretionary decision-making
Weak Strategic Planning
EPBC ignores heritage best practice
Weak Interim Listing Processes
No obligation for the Commonwealth to be interested in heritage/environment
Implications of bilateral agreements for heritage
Minor Problems with the EPBC Act
Conclusion

Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) replaces the Australian Heritage Commission Act 1975 (Cth) (AHC Act).  Comparing the two statutes points to failings EPBC may have for heritage.  Looking to EPBC for how the Act works for required heritage practices, like strategic planning and management plans also points to potentially weak requirements to protect heritage.   EPBC is biodiversity legislation with heritage as an add-on, so manages to ignore much of best practice in heritage legislation, such as Burra Charter ideals on significance.  The biggest implication for heritage is that the Commonwealth is not obliged to take an interest in heritage if it so chooses.  All these phenomena in EPBC may suggest weaker protection for heritage than the old system.  

Discretionary decision-making
Under the old system (AHC Act) a group of heritage experts decided what to list and the legislation guaranteed funding for conservation of items on the list.  This new system (EPBC Act) sees the Minister decide listings and decisions are discretionary.  Decisions can easily become political.  Discretionary decisions are impossible to appeal.  

Under the old system, the main strength of the AHC Act was that the Minister could not list/delist items; the authority for listing was with the Australian Heritage Commission.  The Australian Heritage Commission, an independent statutory authority, did these tasks, and the Minister had no statutory role in the listing process.  The Minister could direct the Heritage Commission to inquire whether an item should continue to be listed, but could not direct the Heritage Commission to remove a place from the Register.  Therefore, decisions about what to list fell to a panel of heritage experts.  It was seen that heritage experts, and not the Minister who may/may not be caught up with political agendas were the best people to decide what should be listed.

Since heritage became a trigger under EPBC Act, the Minister now makes decisions about inclusions on a National Heritage List.  The Minister has wide ranging discretionary powers.  Terms like ‘exception of a policy, plan or program’ and ‘assessment’ and ‘approval process’ is not defined, and no environmental safeguards are stipulated, or review mechanisms built in.  The Minister can transfer referrals to other government Ministers. The Minister can take advice from other Ministers about approval applications.  Therefore there are fears that the decision-making process can be biased to conform to the Minister’s, or even the Prime Minister’s own political agenda which may or may not be in heritage conservation’s best interests.  

Also, wording in EPBC Act may work against heritage conservation directly.  EPBC Act s.136 talks about the Minister “must consider economic and social matters when making a decision about whether to approve an action”.  A Minister considering economic matters can easily come to a decision that does not favour heritage conservation.  It is unclear how this kind of authority helps heritage preservation.  

Discretionary decision-making makes all accountability checks and balances void.  When a Minister has discretionary powers, more general objectives have no legal force.  Government policy is the overriding decider when discretionary decisions are allowed.  Also, a Minister is entitled to disagree with the Department and not accept its recommendations on policy.  The 2002 audit found the decisions made under EPBC Act fell within the authority of the legislation as well as meeting the Prime Minister’s Guide on Key Elements of Ministerial Responsibility requirements. 

Also, under AHC Act s. 7 (a) (iii) there was guaranteed funding for heritage conservation, where the federal government was obliged to set up the National Heritage Trust.  Under EPBC Act, there is no guaranteed funding for heritage conservation. 

Weak Strategic Planning
The way EPBC handles strategic planning is weak.  The Minister has full discretionary decision-making authority about what is in a management plan.  The Minister can revoke an existing management plan and replace it with one of their own.   Before making, replacing, amending or revoking a management plan the Minister needs to ‘seek and consider’ points raised by the Australian Heritage Council, but is not obliged to take and use the advice.  The EPBC Act talks about National Heritage Management Principles that need to be considered when accepting management plants, but these principles do not demands any minimum standards required to be in a management plan.  The Management Plan can be as strong in protection or as weak in protection as the Minister chooses. 

There are much stricter requirements for management plans when the heritage item is on Commonwealth land, rather than non-Commonwealth land under EPBC Act.  In some instances, the Minister is restricted in approving some management plans.   When it is remembered that Commonwealth land makes up about two thirds of Australia’s land mass, any restrictions can be significant for heritage protection. Therefore EPBC Act may not be strong on protection for heritage on Commonwealth land.

Management of federally listed heritage items are devolved to States via bilateral agreements.  If the management plan of an item listed at federal level is different to the management plan of the same item listed at State level, then the States need to oversee the management of the item with two different management plans.  The two management plans could easily be different; after all they are protecting different heritage values (heritage values at federal level are different to significant values at State level).  However, if the States are overseeing both management plans, they are being required to do twice as much work as overseeing one management plan (their own).  

One way of overcoming this problem is for the national list’s management plans to be flexible, thus allowing their management plan to be similar to the item’s State management plans equivalent, and this kind of flexibility is built into EPBC Act.  However this flexibility is a weakness, in that there are no minimum obligations with management plans’ contents.   

Strategic planning of valid heritage items is not linked to planning regulations in EPBC Act. Planning regulations are valid phenomena in the States, where future strategic planning of valid sites is protected.  The structure of EPBC Act is that a one-off decision is made about the item, and no future planning for that item is undertaken.  This is a weakness for heritage conservation, because values change over time.  A one-off decision about listing an item may increase the chances of missing valid heritage items. 
EPBC ignores heritage best practice
The Act is essentially biodiversity conservation legislation that has had heritage added-on.  Heritage best practice may easily be different from environmental conservation best practice.  Legislation drafters have taken biodiversity legislation that embraces best practice in environmental conservation industry and have added heritage as a trigger.  Thus they have managed to ignore heritage industry’s best practice when it comes to listing and preserving valid items.  

Heritage legislation other than EPBC Act across Australian jurisdictions embraces Burra Charter principles.  Every heritage legislation studied by this researcher talks about the idea of social, aesthetic, scientific or historic values.  Even the AHC Act understood these concepts as valid and embraced them.  The EPBC Act only talks about ‘nationally significant heritage’ where  ‘nationally significant’ is defined by the Australian Heritage Commission.  There is no obligation to embrace principles of Burra or Australian Natural Heritage Charter. 

Legislation that is more similar than different across jurisdictions is good.  Heritage legislation at federal level and State level that see the same concepts of significance as important is the best possible situation.  AHC Act had Burra Charter ideals, as does Heritage Act 1977 (NSW).  Therefore the two statutes worked together in ways that helped managers and owners.  EPBC Act defines its own significance. Therefore, ongoing management of the item is addressed against different criteria and ends up being more different than similar to State processes.  This can only end up being more work for all heritage managers who need to conserve their items against different definitions. 

Weak Interim Listing Processes
Good heritage preservation legislation includes emergency listing procedures.  Legislation that can stop development from being approved, which may affect a potential heritage site, is crucial for heritage protection.  For instance, NSW local government (the tier of government at the coalface of heritage protection) has several emergency heritage listing procedures they may trigger when required.  

EPBC Act does have interim listing procedures.  The procedures for listing emergency items are exactly the same as listing a non-emergency item; an application is submitted and considered.  The only difference is the timeframes the Minister has to consider the application are shorter.  

This is not adequate emergency listing procedure.  The original listing application still needs to be up to the same standard a non-emergency application is:  it needs to address all significance indicators and thorough research needs to be performed.  Additionally, the item’s case for listing is strengthened if other stakeholders are enthusiastic for the item’s listing (for example, the State governments) in a regular listing.  These same considerations are required for emergency listings.  In a legitimate emergency, there may not be time for these quite stringent requirements to be met.  

An argument could be made that emergency application might need to be more thoroughly researched and a better case for listing be made to decision-makers than a non-emergency listing. After all, the Minister needs to consider the application quickly, so a successful application would have a better chance of being considered favourably if it was very thoroughly prepared in the first instance.  Also, the item requiring emergency listing may easily not conform to the Minister’s ‘themes’ where they look at similar items to better judge significance.  Therefore, in practice, the emergency listing procedures provided by EPBC places pressure on the applicant to prepare a more thorough application than the States requires, which may not always be possible in an emergency situation. 
No obligation for the Commonwealth to be interested in heritage/environment

The Commonwealth does not need to become involved in heritage/environmental preservation if it chooses not to.  This is important, because if the States DO mis-manage their heritage/environment, the Commonwealth is not obliged to help.  EPBC Act has validated this power and has enshrined it in legislation.  

In five years of EPBC Act’s implementation, when the legislation had only biodiversity triggers, the Act managed to protect only two actions.  Consequently there is emerging a trend where the Commonwealth does not intervene in actions unless it chooses to.  Additionally, it must be remembered that one of the reasons for the change from AHC to EPBC was because it was felt there were too many items on the Register of the National Estate.  Therefore, it’s hard not to wonder if the change of legislation overseeing federal listing meant that it would be harder for items to get onto the federal list, that federal government wanted a tighter, more streamlined heritage list?  EPBC allows the government not to take interest in heritage if it chooses, and Senator Hill has said there’s too many items on the old list.  It’s hard not to make the leap that legislation administrators may find valid heritage items at federal level not suitable for listing, in the interests of a shorter list.

The Commonwealth can choose to be involved, or not be involved in environmental/heritage development applications if it chooses.  This trend has contributed to much tension between Commonwealth and States, which is discussed thoroughly in the literature.  

Added to the tension is that the Commonwealth is not subject to State laws, which may have impacts on the validity of bilateral agreements and therefore invalidate EPBC Act’s strength to protect heritage.  The Commonwealth Places (Application of Laws) Act 1970 (Cth), makes provision of the application of some state laws to Commonwealth places, but this is not generally regarded as including environment protection and planning laws.  This means that the Commonwealth places are not subject to state environmental and planning laws unless the Commonwealth allows themselves to be so controlled.  This adds to Commonwealth/State tensions.

These tensions are addressed in EPBC Act by devolving many management decisions to the States via bilateral agreements with States.  The end result is where the federal government does not need to engage itself with protection of items if it chooses not to.  EPBC Act successfully gives federally listed items to the States to manage.  When there is tensions/problems between the Commonwealth and States, the Commonwealth has given away its power through bilateral agreements, thereby giving States more authority over heritage.  This might not be a good for heritage conservation in States that do not place environmental/heritage preservation as a high priority. 

Implications of bilateral agreements for heritage
EPBC Act demands bilateral agreements between Commonwealth and States to manage biodiversity/heritage.  These agreements are not enforceable by courts.  This empowers the States.  Therefore EPBC Act successfully hands authority for management decisions to the States.   

EPBC Act promoted federal/state cooperation via bilateral agreements.   However States need to make decisions twice when definitions are different.  For instance, if one level of ‘significance’ exists at Commonwealth level, and one at State level, and States can make decisions for both levels, the decision needs to be made twice.  This must increase costs for States, thereby leading to added tension between States and Commonwealth.  When there is tension between States and Commonwealth, the States decisions will prevail. 

The situation is not helped when it is remembered there are different definitions of significance between the two agencies.  While ever there are different definitions about decision-making criteria there will always be a situation where the Commonwealth must oversee the States’ decisions of Commonwealth’s interests.  EPBC Act fails to demand universally agreed definitions.  What constitutes heritage at State level is still different to what is heritage at federal level under EPBC Act.  Therefore if States manage federally listed heritage and there are different definitions of significance, tensions must continue to arise.  And when there are tensions with decision-making, the States’ decisions will prevail, due to bilateral agreements.

Another failing of EPBC Act is the way it demands impacts be assessed.  EPBC Act demands assessment of the potential impact of the proposed action, rather than the nature of the action.  The States assess development applications in a different procedural way.  Therefore EPBC Act is asking the States to assess proposed development in two different ways.  One way of assessment satisfies State’s own strategic planning processes and the other way of assessment satisfies EPBC Act and federal requirements, testing the impacts.  This can only add to federal/State tension.  

An independent body should report on the success or otherwise of bilateral agreements. Accreditation of States for a bilateral agreement should be subject to on-going satisfactory State performance, in particular continued adequate funding and resources.  At present EPBC Act does not demand this happen.  
Minor Problems with the EPBC Act

A problem with defining heritage by attributing physical properties to it (for instance, property) is that intangible aspects to heritage can be lost.  Progress has been made in Australia by identifying intangible values and the monitoring of their survival.  But most importantly, the idea of intangible values needs to be addressed at World Heritage level.  EPBC Act does not specifically address intangible values at all.  
Conclusion

AHC Act and EPBC Act both validate significant heritage items by placing them on a list.  However, both are weak when it comes to protecting the listed item.  Strong protection written into the legislation may not be needed at federal level. An item listed on a local LEP is enough to protect heritage.  Decisions made on developments around significant items are decided because the item is seen/not seen as significant, not because the legislation that empowered that listing is weak.  Evidence suggests that being on an LEP alone is enough to protect the heritage item from development.  The act of listing the site at Local government level means the community perceives the item as valuable. More than one list is even better.  

Good federal heritage legislation should embrace heritage industry’s best practice, which includes focussing adequate funding for heritage conservation.  EPBC fails to deliver guaranteed funding like AHC Act did, and fails to address things like tax incentives for heritage conservators.  

What is listed on a heritage list should be decided by a group of heritage professionals, not by someone who may have a political agenda about conservation.   

There is no obligation to conserve a minimum amount of heritage, or direct money to conserve anything.  This needs to be addressed.  

EPBC Act gives management decisions for heritage to the States.  EPBC has taken the Commonwealth’s power and given it away.  Once authority for something is given, it is difficult to be taken back.  The States are more empowered to manage heritage than ever before.  Historically we have needed the Commonwealth to step in and help the States when they may have mis-managed their environment.  EPBC Act is making sure this phenomena will be a thing of the past.