Conservation of Historic Heritage Places

Submission on the Productivity Commission’s Draft Report

Submission by
Graeme Wiffen
Division of Law
Macquarie University
Sydney, NSW, 2109

When reading the Productivity Commission’s draft report from its Inquiry into the Conservation of Historic Heritage Places, I find the Commission’s comments relating to the legal basis of the Commonwealth’s involvement in setting up regulatory regimes for the protection and conservation of heritage unclear.

In its Report the Productivity Commission expresses a clear preference in heritage matters to a reliance on voluntary agreements between the heritage regulator and the owners of heritage items. On my reading of its Report, this preference seems to derive in part from the Commission’s view of the inadequacy of the Commonwealth’s powers under the Australian Constitution to regulate heritage matters. The references in the Productivity Commission’s Report to the legal and constitutional bases of the Commonwealth’s role in heritage matters, however, lack precision and citation of supporting authority. Expressed in this way the Report may lead to confusion. 

I will refer to parts of the Report.

The Commonwealth list is the only list where the Australian government has constitutional power to directly conserve and manage the listed place. p41 
make laws for the peace, order, and good government of the Commonwealth with respect to:
				……………..

(xx) foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth.

It seems a long time since I have had any substantial work done on my house by other than a constitutional corporation, whose activities would be subject to the Act. 

I reiterate that the constitutional underpinnings of the Commonwealth’s powers to regulate with respect to heritage matters are too complex to be dealt with as they are in a Report, likely to become very important for heritage professionals. The Report is, therefore, liable to be misleading in this respect. 

Another point:
At fn 12 on p66 the Commission remarks:

Curiously, in New South Wales there is only provision for the Minister to seek an injunction in Court for breaches, not the property owner. 

The reasons may be varied. Injunctions are often seen as a speedy remedy. Generally the regulator will likely be the one needing to act quickly, eg to prevent or stop work that might damage a heritage item. The main remedies the other party to an agreement would have would be in contract. It might also have been though useful for the legislation to make it clear that the Minister, a statutory officer, has clear standing to seek an injunction, and when. 

Graeme Wiffen