Page 383 - Week 02 - Tuesday, 18 February 2020
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is no mechanism to direct that the damage be repaired, and it instead must be prosecuted through the courts. As you can see, new processes are urgently needed to cut red tape and give the Heritage Council more flexibility in dealing with problems, allowing quicker and more appropriate outcomes.
The proposed bill will also bring the ACT into line with other jurisdictions where repair orders and damage directions are a common regulatory feature. Once heritage places are lost, they and all that they represent are permanently lost for future generations. To help protect heritage places and objects, the Heritage Act establishes a number of offences. This legislative protection both penalises those who breach the act and aims to provide an essential deterrent to anyone wanting to damage the ACT’s heritage. However, in the past people have got away with minor damage because we have only had the big stick of prosecution, which is a costly, drawn-out and inflexible way to deal with small issues.
Limitations in the legislation have meant the Heritage Council has not been able to insist on repairs. These amendments will let us take immediate action when a heritage place or object is damaged and, because we can deal with the matters quickly and issue on-the-spot fines, should discourage people from committing an offence in the first place. Increased enforcement tools and options will better protect the ACT’s heritage, influence the attitude and behaviour of persons whose actions may have adverse heritage impacts, ensure that no benefit or advantage is obtained by a person who fails to comply with the ACT heritage laws and deter others from committing similar breaches in the future.
As I previously noted, repair damage directions are a common regulatory provision under heritage legislation in all Australian states and territories. The repair damage direction model proposed in this bill is based on the existing repair damage direction models in the Nature Conservation Act 2014 and the Public Unleased Land Act 2013. It also utilises features of an existing section 62 heritage direction model in the Heritage Act 2004. The bill was developed in consultation with the human rights unit within the Justice and Community Safety Directorate, which issued a compatibility statement advising that the bill is compatible with the Human Rights Act 2004.
I note that the Standing Committee on Justice and Community Safety, in its legislative scrutiny role, in scrutiny report 37 recommended amending the explanatory statement of the bill to provide greater clarification for the limitations on human rights in the bill. In response to the committee’s recommendation, I have tabled the revised explanatory statement for the bill. I will touch on some of the issues raised by the committee and my response.
The bill engages the following rights contained in the Human Rights Act 2004: the right to recognition and equality before the law, section 8; and the right to privacy and reputation, section 12. A scheme to issue and enforce repair damage directions created by the bill engages the right to equality before the law, because some recipients of a repair damage direction may not have the financial resources to comply with the direction or to reimburse the territory for repair works undertaken by an authorised person. However, I would like to highlight the safeguards to minimise the limitation on the right to equality before the law that have been built into the bill.
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