Explanatory Memorandum
(Circulated by authority of the Minister for the Environment and Heritage, The Hon. Dr David Kemp MP)General outline, financial and regulation impact statements
General outline
The objects of this Bill are to:
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- repeal the Australian Heritage Commission Act 1975 and amend the Environment Protection and Biodiversity Conservation Act 1999;
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- provide for matters of a transitional nature arising out of the repeal of the Australian Heritage Commission Act 1975, the associated amendment of the Environment Protection and Biodiversity Conservation Act 1999 and the commencement of the Australian Heritage Council Act 2002;
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- amend Commonwealth legislation that is affected by the repeal of the Australian Heritage Commission Act 1975 or the provisions of the Environment and Heritage Legislation Amendment Bill (No. 2) 2002.
Schedule 1 repeals the Australian Heritage Commission Act 1975, and subsection 9(3) of the Environment Protection and Biodiversity Conservation Act 1999. It also amends other Commonwealth Acts that refer or rely on elements of the Australian Heritage Commission Act 1975.
Schedule 2 deals with transitional mechanisms concerned with business matters, such as the vesting of former Australian Heritage Commission assets and liabilities in the Commonwealth, tax exemptions, and final reporting requirements. It also provides for the making of regulations of a transitional nature.
Financial impact statement
The Australian Heritage Council (Consequential and Transitional Provisions) Act 2002 will not have any significant financial impact on the Commonwealth.
Regulation impact statement
The Australian Heritage Council (Consequential and Transitional Provisions) Bill 2002 provides consequential and transitional arrangements in relation to two other Bills. These are the Environment and Heritage Legislation Amendment Bill (No.1) 2002 and the Australian Heritage Council Bill 2002. A regulation impact statement was included in the Explanatory Memorandum for the Environment and Heritage Legislation Amendment Bill (No.2) 2002. A statement is not necessary for this Bill as it does not set up any regulatory mechanism of its own.
Notes on clauses
Clause 1 - Short Title
1. This clause provides for the Act to be cited as the Australian Heritage Council (Consequential and Transitional Provisions) Act 2002.
Clause 2 - Commencement
2. This clause specifies that Sections 1 to3 will commence on the day the Act receives Royal Assent and Schedules 1 and 2 to the Act will commence at the same time as Schedule 1 to the Environment and Heritage Legislation Amendment Act (No. 1) 2002.
Clause 3 - Schedule(s)
3. This clause provides that any Act specified in a Schedule to this Act is amended or repealed as set out in the relevant Schedule.
Schedule 1 - Repeals and amendments
Australian Heritage Commission Act 1975
4. This item repeals the Australian Heritage Commission Act 1975.
Environment Protection and Biodiversity Conservation Act 1999
5. This item repeals subsection 9(3) of the Environment Protection and Biodiversity Conservation Act 1999 which specifies that the making of a decision or, the giving of an approval under that Act, is not an action for the purposes of section 30 of the Australian Heritage Commission Act 1975.
Income Tax Assessment Act 1936
Item 3 - Paragraphs 78(8)(l) and (m)
6. This item amends Paragraphs 78(8)(l) and (m) to provide that a gift of a heritage property made by a taxpayer in 1996-97, or an earlier income year, is an allowable deduction if, at the time the gift was made, the place was listed in the Register of the National Estate under the Australian Heritage Commission Act 1975 in force at that time.
Income Tax Assessment Act 1997
Item 4 - Section 30-15 (cell at table item 6, column headed "type of gift or contribution")
7. This item repeals the cell and substitutes a new cell which provides that the type of deductible gift or contribution as being a place in the National Heritage List or the Commonwealth Heritage List established under the Environment Protection and Biodiversity Conservation Act 1999, rather than a place included in the Register of the National Estate under the Australian Heritage Commission Act 1975.
Item 5 - Application of amendment of section 30-15
8. This item specifies that the amendment to section 30-15 will apply after the commencement of Divisions 1A and 3A of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999.
Item 6 - Subsection 995-1(1) (definition of Heritage Secretary)
9. This item amends the definition of Heritage Secretary in subclause 995-1(1) so that it applies to the Secretary that administers the Environment Protection and Biodiversity Conservation Act 1999, not the Australian Heritage Commission Act 1975.
Regional Forest Agreements Act 2002
10. This item deletes subclause 6(3) that refers to the Australian Heritage Commission Act 1975 as being a certain Commonwealth Act that does not apply in relation to RFA or forestry operations.
Resource Assessment Commission Act 1989
Items 8, 9 and 10 - Paragraph 14(b)
11. These items amend subclause 14(b) to provide that the Minister responsible for the Resource Assessment Commission Act 1989 must consult with the Secretary of the Department that administers the Environment Protection and Biodiversity Conservation Act 1999 and not with the presiding members of the Australian Heritage Commission before appointing a special Commissioner.
12. This item repeals Section 31 and substitutes a new Section 31 that provides that the Secretary of the Department that administers the Environment Protection and Biodiversity Conservation Act 1999, or an authorised officer of that Department shall give evidence at an inquiry where a matter relating to the heritage values of a place is relevant to the enquiry.
Item 12 - Subparagraphs 27(7)(d)(i) and (ii) of Schedule 3
13. This item repeals the Subclause 27(7)(d)(i) and (ii) of Schedule 3, that require the Australian Communications Authority (ACA) to give regard to a thing in the Interim List of the National Estate or in the Register of the National Estate under the Australian Heritage Commission Act 1975, when issuing a facility installation permit. The item substitutes a new paragraph 27(7)(d)(i) which includes a requirement for the ACA to give due regard to a thing on the National Heritage List and/or Commonwealth Heritage List established under the Environment Protection and Biodiversity Conservation Act 1999.
Item 13 - Subclause 28(4) of Schedule 3
14. This item repeals Subclause 28(4) of Schedule 3 which requires the ACA to consult with the Australian Heritage Commission before making a decision to issue a facilities installation permit.
Schedule 2 - Transitional provisions
Item 1 - Meaning of Australian Heritage Commission
15. This item defines the Australian Heritage Commission for the purpose of the Schedule.
Item 2 - References to the Australian Heritage Commission
16. Sub-item 2(1) specifies that after this schedule commences, a reference in an instrument to the Australian Heritage Commission is taken as a reference to the Commonwealth. This item is necessary because bequests may arise in the future that were intended to vest all or part of an estate in the Commission. Sub-item 2(2) provides that this item does not modify any register kept by a land registration official under any State or Territory law.
Item 3 - Assets and liabilities of the Australian Heritage Commission
17. This item provides that any rights, property or assets that were vested in the Australian Heritage Commission immediately before the commencement of this Schedule are vested in the Commonwealth. The Commonwealth becomes liable to pay and discharge any debts, liabilities or obligations of the Australian Heritage Commission that existed immediately before the commencement of this Act.
Item 4 - Registration of transfers of land
18. This item stipulates that any land vested in the Commonwealth, as specified in Item 3, that has been correctly registered and certified before the commencement of this Schedule, may continue to be registered and dealt with in a manner giving effect to the certification.
Item 5 - Certificates concerning assets other than land
19. This item stipulates that any assets, other than land, vested in the Commonwealth as specified in Item 3 which have been correctly registered and certified before the commencement of this Schedule, may continue to be registered and dealt with in a manner giving effect to the certification.
Item 6 - Land Acquisitions Act does not apply to this Schedule
20. This item specifies that the Land Acquisitions Act 1989 does not apply to anything done under this Schedule.
Item 7 - Exemption from stamp duty and other taxes
21. This item makes it clear that any State or Territory stamp duties or other taxes are not payable when an asset or liability is transferred under this Schedule from the Australian Heritage Commission to the Commonwealth, or anything is done in relation to such a transfer.
22. This item provides that if, immediately before this Schedule commences, the Australian Heritage Commission is a party to any pending court proceedings, the Commonwealth is substituted as the relevant party in place of the Australian Heritage Commission.
Item 9 - Final Report on operations of the Australian Heritage Commission
23. This item sets out the requirements for providing a final report on the activities of the Australian Heritage Commission.
24. This item allows for regulations prescribing arrangements of a transitional nature that relate to the repeal of the Australian Heritage Commission Act 1975 to be made under this Act.