A SUBMISSION TO THE INQUIRY ON THE FRAMEWORK AND INCENTIVES FOR THE CONSERVATION OF AUSTRALIA’S HISTORIC BUILT HERITAGE PLACES.

The purpose of conservation is to promote the identification, assessment, protection, promotion and conservation of places having historic cultural heritage significance for the Australian people now and in the future.

My submission arises as a result of my experiences as a member of the National Trust of Australia (Tasmania), conducting historic heritage walks of Hobart over 15 years, and as past Chairman of the Southern Region of the National Trust and the Battery Point Group. 

My involvement has included several major conservation matters seeking the conservation and protection of the public’s heritage - 
1	The Hobart City Council, as a developer, town planner, the planning approval authority, heritage regulator and as a provider of services to the Community,  
2	The Crown, in all its constitutional forms, from Governor, Parliament and Supreme Court, departments authorities acting in one or more roles and as the regulator, owner, developer occupier and as trustee on behalf of the people of Tasmania 

It should also be said that my experience is that when the three levels of government meet and agree on matters of mutual interest then in terms of Australian Heritage the public had best beware. 

My interests and concerns went beyond the conservation of buildings and included cultural landscapes and moveable cultural heritage, the process of joint planning and heritage development applications and the role of planning authorities in work applications and appeals under the Land Use Planning Authority.

The general thrust of the legislation and the supporting explanations and background (see http://www.aph.gov.au/library/pubs/bd/1998-99/99bd135.htm#Main) are directed to avoiding duplication, relying on state mechanisms, removing the Commonwealth from local disputes with the solution arising from meetings of Ministers and Officers. I read the papers like the history of state and federal relationships, of passing the buck, the confusion over funding sources that would suggest we yet don’t have the solution to the conservation of the nation’s heritage. The existing legislation does not provide the framework whereby the conservation of the nation’s heritage will be secured.

It would appear that the Commonwealth seeks to limit its registered heritage interests to those buildings that it has constructed and are of national significance from a Parliamentary and administrative perspective. 

When one looks at places of national significance established prior to Federation they appear to be State and Local Government responsibilities. Yet they are the property of the Crown in the name of the people of Australia and a critical part of the nation’s heritage, not a state or local matter. 

What is the nation’s built heritage? Who is responsible for its identification, protection and conservation? 

I ask these questions because the terms of reference limit the inquiry to buildings and places and it is difficult to see where the outcome of the inquiry can go than for heritage to remain where it is currently. 

The registration and listing of buildings and places are not the issue. The majority of places already exist and are being conserved. It is their modification or misuse that is the current issue.

In my opinion one of the major weaknesses in the Issues Paper is that it fails to adequately define or described the role of the Crown, nor does it adequately address the roles, functions, or contributions of Government and the issues that arise in terms of the conservation of publicly owned heritage places. 
The Crown, as owner in the name of the people of Australia or any other State or Territory, is itself the most significant creator of public heritage as well as protector of the public benefit. It is also the major user, administrator, regulator, occupier, holder and manager of the cultural heritage, as well as the lawmaker. 
Any proposed policy applicable to the Crown requires more than the recommendation of additional resources and the promotion of awareness within public administration. The policy needs to provide for a structure that recognises the Crown and the separate and distinct roles of the component parts that constitute the Crown and the limits that apply to Government Departments over any of the other constitutional arms of the State. 
The adequacy of the existing legal and administrative framework for the management and identification of Government heritage collections, including lands, reserves and property held for specific purposes, the disposal of sites no longer required for narrow departmental purposes, the collection of relevant administrative records, their location, access and movement needs to be addressed as part of the determination of a cultural heritage policy. 
The use of the term “Government” in the Issues Paper masks this significant difference between the concept of the Crown and the functions of Government and the role of Cabinet. A failure to correctly define the issue, particularly in regard to the role of Government, is to allow the problem to be seen only in terms of how places are regulated by state and federal government and how they register or list properties. 

Whilst the Issues Paper identifies ownership and management it fails to address the multitude of forms such a concept takes both at state and federal levels across three levels of Government. There is no comparison between the concept of the Crown and that of an owner, manager of a heritage place in the private sector nor should there be. 

There is a world of difference between the Crown when it functions under one or more of its roles - the function of owner, legislator, occupier, planning approval and the competing role of heritage regulator and funder of conservation and that of a person owning a heritage house or factory or place. The description of the Government as some benign organisation seeking to intervene in terms of a market place failure is not helpful.

The issue in terms of the Crown is not one of ownership, management or policy - it is the exercise of the ultimate authority and control of Australia’s heritage that is held in the name of the Australian people. 

If a piece of land acquired by the Commonwealth for defence purposes is no longer required for the purposes of defence and the place in question is part of a prominent heritage landscape feature set aside for public use, should a department be able to dispose of it. The Commonwealth was able to translate a piece of 19th Century unalienated land, by administrative decision convert it and sell it as freehold with limits to its use but then fail to have the uses included on the title without the need for any reference to the authority of the State Parliament. The land in question had been set-aside since 1811 and confirmed as unalienable by the Tasmanian Parliament in 1854 for public recreation.

The Crown’s heritage is not an issue of national matters verses local matters.

The role and function of statutory independent heritage regulatory bodies and the actions of Government Departments, or those of middle level officers making decisions on issues of development or real estate sales are not part of the same problem. The Crown has already determined the standards to apply to the conservation of the nation’s heritage. 

How can Government or an individual department act in the belief that it is local government or the public that have the responsibility to enforce heritage standards for a place of Australian heritage?

The issues that cause the greatest conflict are not market related i.e. if the market fails how should Government step in. 

Such an outcome is not the position that ever confronts the Crown as an owner. The public issue that arises is how a government agency disposes of a heritage place, a place owned by the Crown in the name of the people of Australia. Who is then to be responsible into the future for its conservation?

All land previously set aside for a public purpose, or that was unalienated or occurred, as a transfer between levels of Government remains the property of the Crown. It is not affected by market forces where it concerns heritage.

In my opinion it is for the Crown, on behalf of the people, to first establish that if the land or place should be disposed of, that it has been declared as having no future public heritage purpose. This is not a view that can be formed other than from a whole-of-government perspective. There is no failure of the market in such cases involving the Crown. 

What is the criteria to be met when a heritage site is not needed by a department?

A decision by a department to obtain a short-term gain for its limited departmental perspective by disposing of the heritage place is the problem. The issue of its conservation and heritage value to the nation is never addressed. That is not the department’s charter. 

The announcement to sell in some cases is a transfer between levels of government and or an authority, then and at some later date on-sold as freehold or its heritage value compromised. The local conflict has commenced. The market was never an issue.

As a result the resolution of the responsible conservation of the places heritage has been transferred to the planning authority and the citizen in the neighbourhood. Neither the planning authority or the citizen is funded by the Commonwealth, nor are they capable of discharging that responsibility. 

In many cases the driving force is whole-of-government competition policy where statutory authorities dispose of heritage properties because they are perceived as trading authorities with some lesser Crown responsibility and only required to consider economic factors.

The Issues Paper does not address the role of developers in such situations when acting as the agent of the Department. Their role then is quite a different one. They introduce the concept of market because they have assumed a financial risk. But the market price paid and the economic and regulatory factors are usually built-in to lower prices. But that risk also can influence the eventual outcome in planning terms and can produce a positive financial benefit to the developer. 

The developer having bought the property, it is then perceived that the Crown is not opposed to the outcome on what was previously a Crown-owned heritage property. The developer proposes an outlandish scheme, opposition occurs, they achieve additional compromises - generally by way of exemptions/assistance from other government sources that result in appalling heritage outcomes in most cases. 

The Issues Paper does not address the role of all three levels of Government as the facilitator of such development, as users of such developers in urban-development government-sponsored projects, nor their role as the valuer and determinator of land usage as well as being major occupiers, tenants and service providers. 

The same Governments are then the providers of the protection, regulators and funders of the heritage outcome. The relative proportion of funds, resources, effort and political clout arraigned against conservation far outweigh the resources for its conservation.

The use of the term “government” in the Issues Paper mask this significant difference between the concept of the Crown and the functions of Government and the role of Cabinet. A failure to correctly define the issue particularly in regard to the role of government is to allow the matter to be seen only in terms of how do we regulate state and federal government in how they register or list properties. 

Many Crown properties are transferred to non-Government Organisations (NGO’s) and are then funded as part of tourism or some community function and are dependant on the local community as distinct from it being an obligation of the nation as a whole. 

A review such as this cannot reduce the in-built conflict that is designed to exist in our federal structure. Conflict is not bad, confusion a fact of change and everyday life. 

What is missing is the recognition that government in its day-to-day operation is a major contributor to the loss of heritage in this country. To describe Federal Government as though it is neutral and all the other players as being part of the problem of a conflict of overlapping roles is to misunderstand the problem.

This suggests that the Federal Government’s role, with its political hat on, is in some way not a beneficiary in the outcome of its decisions. Any decision by Cabinet or through administration whether as regulator, promoter, occupier, and provider of funds and or as owner will always produce a conflict of interest.

A decision by Government to bring about changes to a heritage place, listed or not by selling, development, conservation, concession or coordination are the results of a political decision. 

Usually arising from a Cabinet decision directly or indirectly via the budget i.e. maintain your expenditure by disposal of a (heritage) asset etc has a greater impact than any other of the players in the private sector on the conservation of the heritage of Australia.

How well is the Crown as the owner in the name of the people of Australia or on behalf of one of its constituent states or territories being served, is the essential question by the various arms of the Crown as the conservators of the people’s heritage.   

To suggest in the Issues Paper that the majority of matters occur at the local level confuses in such cases where the conflict occurs with the real issue. 

Where was the decision made, by whom, did real consultation occur and were all issues considered. The location of the activity is usually the only place that the outcome is given expression to in a public way. It is only the planning process, by law, that provides for the decision to be discussed or challenged or be influenced. 
The only reason it becomes local is that there is no national body whose Charter it is to raise such matters or to be consulted at a state or federal level as to the perspective of the Crown in the name of the people prior to the decision being made.

Parliament by passing a law requires the government through its administration to carry out the will of Parliament including the maintenance of any asset and its contents. Parliament also ensures that the written records of the activity are secured and financial payments are scrutinised by the Auditor-General. The function of an Auditor-General is not limited to financial matters. I draw your attention to the Canadian Auditor-General’s Report - see Chapter 6 in the following link http://www.oag-bvg.gc.ca/domino/reports.nsf/html/03menu_e.html - http://www.oag-bvg.gc.ca/domino/reports.nsf/html/03menu_e.html in regard to heritage and its management in the Canadian Federal system.

What is missing in Australia in addition to whole-of-government policy is a requirement to justify the disposal of a heritage asset on heritage grounds, which is also subject to oversight and reporting by the Auditor-General at one level or another.

The big issue in conservation is how did we arrive at the particular situation in which we now find ourselves.

Multiple listing processes, a multitude of responsible organisations, various sources of funding, no single-system of criteria for conservation or funding, no adequate internal vetting by the Crown, no agreed division of responsibility within the Crown where one arm of government is financing and or organising its destruction and another trying to conserve it after the event.

The ignorant destruction of heritage buildings was the original problem that the listing of buildings sought to address. Particularly in a nation whose seven capitals contained the great bulk of the population growing at rates where the 19th Century and the first 50 years of the 20th Century of our heritage are at risk in terms of the still-remaining character of the early townships.  

Whose contribution to the heritage of the nation are we now seeking to protect? Is it the work of the builder, the architect, the owner, the tenant, their notoriety, the contribution made in the dwelling, positive or negative or merely a residence, atypical of its type or the heritage of our parliamentary representatives?

How has it worked in practice, at local, state and federal level? An adequate mechanism for doing this has still not been devised. The notion of cooperative federalism under the guise of ministerial and officer meetings will not protect the nation’s heritage 

This is why the relevance of individual buildings needs reassessing beyond the role of the ownership and age, the context of its heritage, individual, community, cultural and constitutional. Using strategies that divide heritage into federal, state, local or community is divisive both to heritage and the community.

The full extent of the role of federal funding and the type of decision making, including those by Cabinet, funding such as Centenary of Federation e.g. grants by electorate, distributed by MP’s needs to be examined. 

Schemes such as Better Cities funding leads to towns homogenising or McDonaldising the streetscape and destroying the 19th and 20th Century streetscape because streets and streetscapes are not heritage listed. The Crown owns the street, the Parliament funds the infrastructure and local government manages the street infrastructure. The outcome is obliteration of the character and variety of Australian suburbs and towns.