Heritage Places (Protection of State Heritage Places) Amendment Bill

Final Stages

The House of Assembly agreed to the bill with the amendments indicated by the following schedule, to which amendments the House of Assembly desires the concurrence of the Legislative Council.

No. 1. New clause, page 2, after line 5—After clause 1 insert:

1A—Commencement

This Act comes into operation on a day to be fixed by proclamation.

No. 2. New clauses, page 2, after line 6—Before clause 2 insert:

1B—Amendment of section 3—Interpretation

(1) Section 3(1)—after the definition of archaeological artefact insert:

associate—see subsection (3);

(2) Section 3(1)—after the definition of dispose of insert:

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

(3) Section 3(1)—after the definition of place insert:

protection order means an order issued under section 39A;

(4) Section 3(1)—after the definition of Registrar-General insert:

repair order—see section 39B;

(5) Section 3(1)—before the definition of River Murray Protection Area insert:

restoration order—see section 39C;

(6) Section 3(1)—after the definition of specimen insert:

spouse—a person is the spouse of another if they are legally married;

(7) Section 3—after subsection (2) insert:

(3) For the purposes of this Act, a person is an associate of another if—

(a) they are partners; or

(b) 1 is a spouse, domestic partner, parent or child of another; or

(c) they are both trustees or beneficiaries of the same trust, or 1 is a trustee and the other is a beneficiary of the same trust; or

(d) 1 is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

(e) 1 is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body corporate or other entity; or

(f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or

(g) a chain of relationships can be traced between them under any 1 or more of the above paragraphs.

(4) For the purposes of subsection (3), a beneficiary of a trust includes an object of a discretionary trust.

1C—Amendment of section 5—Composition of Council

Section 5(2)—delete 'advertisement published in a newspaper circulating throughout the State' and substitute:

notice published on a website determined by the Minister or by such other means prescribed by the regulations

1D—Amendment of section 14—Content of Register

Section 14(7)—delete subsection (7) and substitute:

(7) The Council may—

(a) designate a State Heritage Place as—

(i) a place of geological, palaeontological or speleological significance; or

(ii) a place of archaeological significance; and

(b) include that designation as part of the entry for the place in the Register.

(8) The designation of a State Heritage Place as a place of geological, palaeontological or speleological significance or a place of archaeological significance may occur on or after the provisional entry of the place in the Register (or after the confirmation of that entry).

1E—Amendment of section 17—Proposal to make entry in Register

(1) Section 17, heading—after 'Register' insert:

and inclusion of related designations

(2) Section 17(4)(a)(ii)—after 'confirmed' insert:

and, if the Council has designated the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance—the designation

(3) Section 17(4)(b)—delete 'advertisement published in a newspaper circulating throughout the State' and substitute:

notice published on a website determined by the Minister or by such other means prescribed by the regulations

(4) Section 17(4)(b)(iii)—after 'confirmed' insert:

and, if the Council has designated the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance—the designation

(5) Section 17(4)(c)—after 'the entry' insert:

(and any relevant designation)

(6) Section 17(4)(d)—after 'the entry' insert:

(and any relevant designation)

(7) Section 17—after subsection (6) insert:

(7) If the Council, in relation to a State Heritage Place entered in the Register as a confirmed entry, subsequently designates the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance under section 14(7), the Council must—

(a) give each owner of the land constituting the place a written notice—

(i) stating the reasons for the designation; and

(ii) explaining that the owner has a right to make submissions, within 3 months from the date of the notice, in relation to the designation; and

(b) give notice by notice published on a website determined by the Minister or by such other means prescribed by the regulations—

(i) that the Council has designated the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance; and

(ii) explaining that any person has a right to make written submissions, within 3 months of the date of the notice, in relation to the designation; and

(c) give written notice to the Minister of the designation; and

(d) if the place is within the area of a local council—give written notice to the local council of the designation.

(8) In relation to a part of the State that is not within the area of a council, a reference in this section to—

(a) a local council will be taken to be a reference to the Outback Communities Authority established under the Outback Communities (Administration and Management) Act 2009; and

(b) the area of a local council will be taken to be a reference to the outback (within the meaning of the Outback Communities (Administration and Management) Act 2009).

1F—Amendment of section 18—Submissions and confirmation or removal of entries

(1) Section 18, heading—delete 'and confirmation or removal of entries' and substitute:

etc in relation to provisional entries in Register and related designations

(2) Section 18(1)—delete subsection (1) and substitute:

(1) Subject to this section, if the Council gives notice that it has made a provisional entry in the Register, any person may, within 3 months after the notice is given, make written representations to the Council on—

(a) whether the entry should be confirmed; and

(b) if the provisional entry includes a designation of the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance under section 14(7)—the designation.

(3) Section 18—after subsection (4) insert:

(4a) If the provisional entry in the Register is confirmed, the Council may, after considering the representations (if any) made under this section in relation to the designation of the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance, subject to any direction of the Minister, determine whether to retain or revoke the designation.

(4) Section 18(6)—delete subsection (6) and substitute:

(6) If the Minister is of the opinion that—

(a) the confirmation of a provisional entry in the Register; or

(b) the designation of a place as a place of geological, palaeontological or speleological significance or a place of archaeological significance,

may be contrary to the public interest the Minister may, by instrument in writing, direct the Council to defer making a decision on—

(c) whether or not to confirm the entry; or

(d) whether to retain or revoke the designation,

until the Minister determines the matter (and the Council must comply with any direction of the Minister under this subsection).

(5) Section 18—after subsection (7) insert:

(7aa) If the Minister, not having directed under subsection (7) that the provisional entry of a place, being a place designated as a place of geological, palaeontological or speleological significance or a place of archaeological significance, be removed, is of the opinion that such designation of the place would be contrary to the public interest (whether or not the Minister has acted under subsection (6)), the Minister may, after consultation with the Council, by instrument in writing, direct that the designation be revoked.

(6) Section 18(7a)—delete subsection (7a) and substitute:

(7a) The Minister must, when acting under subsection (7) or (7aa), set out the grounds on which the Minister considers that the confirmation of the provisional entry, or the designation of the place, (as the case requires) would be contrary to the public interest.

(7) Section 18(7c)—after 'the provisional entry' insert:

(including any related designation)

(8) Section 18—after subsection (7c) insert:

(7ca) If the provisional entry of a place (being a place designated as a place of geological, palaeontological or speleological significance or a place of archaeological significance) has been confirmed under this section and—

(a) the Council, after considering the representations (if any) made under this section in relation to the designation of the place, is of the opinion that the designation should be revoked; or

(b) the Minister directs that the designation be revoked,

the Council must remove the designation from the relevant entry in the Register.

(9) Section 18(7d)—after 'provisional entry' insert:

, and if relevant, the retention or revocation of a designation in relation to the entry

(10) Section 18(7d)(b)—delete 'advertisement published in a newspaper circulating throughout the State' and substitute:

notice published on a website determined by the Minister or by such other means prescribed by the regulations

(11) Section 18(9)—after 'confirmed' insert:

, and whether any related designation of the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance should be retained or revoked,

(12) Section 18—after subsection (9) insert:

(10) In relation to a part of the State that is not within the area of a council, a reference in this section to—

(a) a local council will be taken to be a reference to the Outback Communities Authority established under the Outback Communities (Administration and Management) Act 2009; and

(b) the area of a local council will be taken to be a reference to the outback (within the meaning of the Outback Communities (Administration and Management) Act 2009).

1G—Insertion of Section 18A

After section 18 insert:

18A—Submissions etc in relation to designation of confirmed State Heritage Places as being places of particular significance

(1) Subject to this section, if, in relation to a State Heritage Place entered in the Register as a confirmed entry, the Council gives notice under section 17(7) that it has designated the place as a place of geological, palaeontological or speleological significance or a place of archaeological significance, any person may, within 3 months after the notice is given, make written representations to the Council in relation to the designation.

(2) If the Minister is of the opinion that the period that applies under subsection (1) should be extended in the public interest, the Minister may, by notice in the Gazette, extend that period for a further period of up to 3 months.

(3) If a person who makes written representations under this section seeks to appear personally before the Council to make oral representations, the Council must, unless the submission is frivolous, allow that person a reasonable opportunity to do so.

(4) The Council must consider all written and oral representations made under this section.

(5) After considering the representations (if any) made under this section, the Council may, subject to any direction of the Minister under this section, retain or revoke the designation of a State Heritage Place as a place of geological, palaeontological or speleological significance or a place of archaeological significance.

(6) If the Minister is of the opinion that the designation of a place as a place of geological, palaeontological or speleological significance or a place of archaeological significance may be contrary to the public interest the Minister may, by instrument in writing, direct the Council to defer making a decision on whether to retain or revoke the designation, until the Minister determines the matter (and the Council must comply with any direction of the Minister under this subsection).

(7) If the Minister is of the opinion that the designation of a place as a place of geological, palaeontological or speleological significance or a place of archaeological significance would be contrary to the public interest (whether or not the Minister has acted under subsection (6)), the Minister may, after consultation with the Council, by instrument in writing, direct that the designation be revoked.

(8) The Minister must, when acting under subsection (7), set out the grounds on which the Minister considers that such a designation of the place would be contrary to the public interest.

(9) If—

(a) the Council, after considering the representations (if any) made under this section, is of the opinion that a designation should be revoked; or

(b) the Minister directs that a designation be revoked,

the Council must remove the designation from the relevant entry in the Register.

(10) Notice of the retention or revocation of a designation of a place as a place of geological, palaeontological or speleological significance or a place of archaeological significance must be given—

(a) by written notice to the owner of land constituting the relevant place; and

(b) on a website determined by the Minister or by such other means prescribed by the regulations; and

(c) by written notice to the Minister; and

(d) if the relevant place is within the area of a local council—by written notice to the local council.

(11) The Council must take all reasonable steps to make a decision about whether a designation should be retained or revoked within 12 months after the date on which the designation was made and if the Council fails to make a decision within that period or such longer period as is allowed by the Minister under this subsection in the particular case, the designation must be revoked.

(12) In relation to a part of the State that is not within the area of a council, a reference in this section to—

(a) a local council will be taken to be a reference to the Outback Communities Authority established under the Outback Communities (Administration and Management) Act 2009; and

(b) the area of a local council will be taken to be a reference to the outback (within the meaning of the Outback Communities (Administration and Management) Act 2009).

1H—Amendment of section 20—Appeals

(1) Section 20—after subsection (1) insert:

(1aa) If an owner of land constituting a place designated as a place of geological, palaeontological or speleological significance or a place of archaeological significance in the Register makes written representations to the Council with respect to that designation, the owner may, subject to this section, appeal to the Court against a decision to retain or revoke the designation.

(2) Section 20(1b)—delete subsection (1b) and substitute:

(1b) No appeal lies under this section against—

(a) the removal of a provisional entry at the direction of the Minister under this Division; or

(b) the revocation of a designation at the direction of the Minister under this Division.

1I—Amendment of section 23—Council may act if registration at State level not justified

(1) Section 23(1)—delete subsection (1) and substitute:

(1) If the Council—

(a) after taking into account the criteria set out in Division 1, is of the opinion that an entry relating to a place in the Register as a State Heritage Place is no longer justified, or that an entry relating to a State Heritage Place should be altered by excluding part of the place to which the entry applies; or

(b) is of the opinion that an entry relating to a place in the Register that has been designated as a place of geological, palaeontological or speleological significance or a place of archaeological significance should be altered by varying or revoking the designation,

it may give notice of its intention to alter the Register by removing or altering the entry (as the case requires), and invite written representations on the proposal—

(c) by notice in writing to the owner of land constituting the place and, if the entry relates to or includes an object under section 14(2)(b), to the owner of the object; and

(d) by notice published on a website determined by the Minister or by such other means prescribed by the regulations; and

(e) if the place is within the area of a local council—by notice in writing to the local council.

(2) Section 23—after subsection (4) insert:

(5) In relation to a part of the State that is not within the area of a council, a reference in this section to—

(a) a local council will be taken to be a reference to the Outback Communities Authority established under the Outback Communities (Administration and Management) Act 2009; and

(b) the area of a local council will be taken to be a reference to the outback (within the meaning of the Outback Communities (Administration and Management) Act 2009).

1J—Amendment of section 30—Stop orders

Section 30(6), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

No. 3. Clause 3, page 2, lines 20 and 21 [clause 3(1), inserted penalty provision]—Delete paragraphs (a) and (b) and substitute:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

No. 4. Clause 3, page 2, lines 24 and 25 [clause 3(2), inserted penalty provision]—Delete paragraphs (a) and (b) and substitute:

(a) in the case of a body corporate—$500,000;

(b) in the case of an individual—$250,000.

No. 5. Clause 3, page 3, lines 3 and 4 [clause 3(3), inserted penalty provision]—Delete paragraphs (a) and (b) and substitute:

(a) in the case of a body corporate—$500,000;

(b) in the case of an individual—$250,000.

No. 6. New clause, page 3, after line 4—Insert:

3A—Amendment of section 38—No development orders

(1) Section 38(3), penalty provision—delete the penalty provision and substitute;

Maximum penalty:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

(2) Section 38—after subsection (3) insert:

(3a) In relation to a part of the State that is not within the area of a council, a reference in this section to—

(a) a local council will be taken to be a reference to the Outback Communities Authority established under the Outback Communities (Administration and Management) Act 2009; and

(b) the area of a local council will be taken to be a reference to the outback (within the meaning of the Outback Communities (Administration and Management) Act 2009).

No. 7. Clause 4, page 3, lines 8 and 9 [clause 4, inserted penalty provision]—Delete paragraphs (a) and (b) and substitute:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

No. 8. Clause 4, page 3, after line 9—Insert:

(2) Section 38A(11) and (12)—delete subsections (11) and (12)

No. 9. Clause 5, page 3, lines 16 and 17 [clause 5(2), inserted penalty provision]—Delete paragraphs (a) and (b) and substitute:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

No. 10. Clause 5, page 3, after line 17—After subclause (2) insert:

(2a) Section 39A—after subsection (5) insert:

(5a) If an amount is recoverable from a person by the Minister under this section—

(a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and

(b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the order is registered under this Part.

(5b) A charge imposed on land by this section has priority over—

(a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and

(b) any other charge on the land other than a charge registered prior to the registration of the order under this Part in relation to the land.

(2b) Section 39A(7) to (12)—delete subsections (7) to (12) (inclusive)

No. 11. Clause 5, page 3, lines 18 to 37 [clause 5(3)]—Delete subclause (3)

No. 12. New clause, page 3, after line 37—After clause 5 insert:

5A—Insertion of sections 39B to 39E

After section 39A insert:

39B—Repair orders

(1) Subject to this section, if the Minister is satisfied that a State Heritage Place suffers from—

(a) neglect or disrepair that risks destroying or reducing the heritage significance of the place; or

(b) neglect or disrepair of a kind or extent prescribed by the regulations,

the Minister may issue an order under this section (a repair order) to a person in respect of the State Heritage Place that requires the person to carry out specified works or take other specified action for 1 or more of the following purposes:

(c) protecting the State Heritage Place from damage, deterioration or destruction due to fire, weather, vermin or other causes;

(d) securing the State Heritage Place from intrusion or vandalism;

(e) ensuring that maintenance and repair necessary to remedy or prevent serious or irreparable damage or deterioration is carried out in respect of the State Heritage Place.

(2) Before issuing a repair order, the Minister must give written notice to the person to whom the order is proposed to be issued of the intention to issue the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.

(3) The notice must also state that the person to whom the repair order is proposed to be issued may, within a period (being at least 21 days) specified in the notice, make written representations to the Minister as to why the order should not be issued, or as to the terms of, or period for compliance with, the order.

(4) A person given notice of a proposed repair order may, in accordance with the notice, make representations concerning the proposed order.

(5) The Minister must consider any representations so made and after doing so may determine to—

(a) issue a repair order in accordance with the proposed order; or

(b) issue a repair order in accordance with modifications made to the proposed order; or

(c) not issue the repair order.

(6) If the Minister determines to issue an order in accordance with modifications made to the proposed order, notice under subsection (2) of the proposed order as so modified is not required to be given.

(7) A repair order issued under this section must—

(a) be in the form of a written notice served on the person to whom the notice is issued; and

(b) specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and

(c) specify the particulars of the works required to be carried out or action required to be taken; and

(d) specify the period within which the works or action must be completed; and

(e) state that the person may, within 21 days of the order being issued or a subsequent variation of the order being made, appeal to the Court against the order or variation of the order.

(8) The Minister may, at any time, by written notice served on a person to whom a repair order has been issued under this section—

(a) after consultation with the person, vary the order (including so as to vary the period specified for compliance with the order); or

(b) revoke the order.

(9) A person to whom a repair order is issued must comply with the order.

Maximum penalty:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

(10) If a person fails to comply with the requirements of a repair order, the Minister may cause any works or action contemplated by the order to be carried out and recover the cost of doing so, as a debt, from the person against whom the order was made.

(11) A person taking action under subsection (10) may enter any relevant land at any reasonable time.

(12) If an amount is recoverable from a person by the Minister under this section—

(a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and

(b) the amount together with any interest charge so payable is, until paid, a charge in favour of the Minister on any land owned by the person in relation to which the repair order is registered under this Part.

(13) A charge imposed on land by this section has priority over—

(a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and

(b) any other charge on the land other than a charge registered prior to the registration of the repair order under this Part in relation to the land.

39C—Restoration orders

(1) The Minister may issue an order under this section (a restoration order) to a person if—

(a) the person has carried out works or activities in relation to a State Heritage Place; and

(b) the Minister reasonably believes that the works or activities were not authorised by, or carried out in accordance with—

(i) development authorisation under the Planning, Development and Infrastructure Act 2016; or

(ii) an approval, consent, licence, permit or other authorisation, granted or required under another Act or law, prescribed by the regulations.

(2) A restoration order issued to a person may require the person to—

(a) rectify any works or activities carried out in relation to the State Heritage Place; or

(b) otherwise restore or reinstate the State Heritage Place, as far as is possible, to the condition it was in immediately before the work or activity was carried out.

(3) A restoration order under this section must—

(a) be in the form of a written notice served on the person to whom it is issued; and

(b) specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and

(c) specify the particulars of the works required to be carried out or action required to be taken; and

(d) specify the period within which the works or action must be completed; and

(e) state that the person may, within 21 days of the order being issued or a subsequent variation of the order being made, appeal to the Court against the order or variation of the order.

(4) The Minister may, at any time, by written notice served on a person to whom the restoration order has been issued under this section, vary or revoke the order.

(5) A person to whom a restoration order is issued must comply with the order.

Maximum penalty:

(a) in the case of a body corporate—$1,000,000;

(b) in the case of an individual—$500,000.

(6) If a person fails to comply with the requirements of a restoration order, the Minister may cause any works or action contemplated by the order to be carried out and recover the cost of doing so, as a debt, from the person against whom the order was made.

(7) A person taking action under subsection (6) may enter any relevant land at any reasonable time.

(8) If an amount is recoverable from a person by the Minister under this section—

(a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and

(b) the amount together with any interest charge so payable is, until paid, a charge in favour of the Minister on any land owned by the person in relation to which the restoration order is registered under this Part.

(9) A charge imposed on land by this section has priority over—

(a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and

(b) any other charge on the land other than a charge registered prior to the registration of the restoration order under this Part in relation to the land.

39D—Registration of orders by Registrar-General

(1) If—

(a) the Minister issues a protection order, repair order or restoration order under this Part; and

(b) the order is issued in relation to an activity carried out on land, or requires the person to take action on or in relation to land, that constitutes a State Heritage Place,

the Minister may apply to the Registrar-General for the registration of the order in relation to that land.

(2) An application under this section must—

(a) define the land to which it relates; and

(b) comply with any requirement imposed by the Registrar-General for the purposes of this section.

(3) The Registrar-General must on—

(a) due application under subsection (2); and

(b) lodgement of a copy of the relevant order,

register the order in relation to the land by making such entries in any register book, memorial or other book or record in the Lands Titles Registration Office or in the General Registry Office as the Registrar-General thinks fit.

(4) The Minister must, in accordance with the regulations, furnish to the Registrar-General notice of any variation of an order registered under this section.

(5) An order registered under this section (as varied from time to time) is binding on each owner and occupier from time to time of the land.

(6) The Registrar-General must, on application by the Minister, cancel the registration of an order in relation to land and make such endorsements to that effect in the appropriate register book, memorial or other book or record in respect of the land as the Registrar-General thinks fit.

(7) The Minister may, if the Minister thinks fit, apply to the Registrar-General for cancellation of the registration of an order under this section in relation to land, and must do so—

(a) on revocation of the order; or

(b) on full compliance with the requirements of the order; or

(c) if the Minister has taken action under this Part to carry out the requirements of the order—on payment to the Minister of any amount recoverable by the Minister under this Part in relation to the action so taken.

(8) The Minister must, as soon as is reasonably practicable, notify each owner and occupier of the relevant land by notice in writing if—

(a) an order is registered under subsection (3); or

(b) a notice of the variation of an order is registered under subsection (4); or

(c) the cancellation of the registration of an order is given effect to under subsection (7).

(9) A notice to be given to the occupier of land under subsection (8) may be given by addressing it to the 'occupier' and posting it to, or leaving it at, the land.

39E—Appeals to ERD Court—protection orders, repair orders and restoration orders

(1) A person to whom a protection order, repair order or restoration order has been issued under this Part may appeal to the ERD Court against the order or any variation of the order.

(2) An appeal must be made in the manner and form determined by the Court, setting out the grounds of the appeal.

(3) Subject to this section, an appeal must be made within 21 days after the order is issued or the variation is made.

(4) The Court may, if satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period fixed by subsection (3).

(5) Unless otherwise determined by the Court, an appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to that appeal).

(6) Subject to subsection (7), the making of an appeal does not affect the operation of the order to which the appeal relates or prevent the taking of action to implement or enforce the order.

(7) The Court or the Minister may, on its or the Minister's own initiative or on application by a party to the appeal, suspend the operation of an order until the determination of an appeal.

(8) A suspension under subsection (7) may be subject to specified conditions, and may be varied or revoked by the Court or the Minister (as the case requires) at any time.

(9) The Court may, on hearing an appeal—

(a) —

(i) confirm, vary or revoke the order appealed against; or

(ii) substitute any order that should have been made at the first instance; or

(iii) remit the subject matter of the appeal to the Minister; or

(iv) order or direct a person to take such action as the Court thinks fit, or refrain (either temporarily or permanently) from such action or activity as the Court thinks fit; and

(b) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

No. 13. Clause 6, page 4, after line 5—Insert:

(3) Section 42(7), definition of prescribed offence—delete 'or 39A' and substitute:

, 39A, 39B or 39C

No. 14. New clauses, page 4, after line 5—After clause 6 insert:

7—Insertion of sections 42A and 42B

After section 42 insert:

42A—Onus of proof in certain offences

(1) In any prosecution of an owner of a State Heritage Place for a prescribed offence arising from the substantial damage or destruction of the place (including damage or destruction which occurs as a result of neglect of the place), if the circumstances suggest the owner has not suffered significant financial loss as a result of the damage or destruction the owner is presumed to have caused, or authorised, caused or permitted another person to cause, the damage or destruction unless it is proved that the owner did not do so.

(2) In this section—

prescribed offence means an offence against section 36, 38, 38A, 39A, 39B or 39C.

42B—Continuing offences

(1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission—

(a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues of not more than an amount equal to one-tenth of the maximum penalty prescribed for that offence; and

(b) is, if the act or omission continues after the person is convicted of the offence, guilty of a further offence against that subsection and liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continues after that conviction of not more than an amount equal to one-tenth of the maximum penalty prescribed for that offence.

(2) For the purposes of subsection (1) an obligation to do something is to be regarded as continuing until the act is done notwithstanding that any period within which, or time before which, the act is required to be done has expired or passed.

8—Amendment of section 43—Service of notices

Section 43(d)—delete 'in a newspaper circulating throughout the State' and substitute:

on a website determined by the Minister or by such other means prescribed by the regulations

9—Amendment of section 44—Evidence

Section 44—after subsection (3) insert:

(4) In any legal proceedings, an apparently genuine document purporting to be a notice or order, or copy of a notice or order, issued or executed by the Minister will be accepted as such in the absence of proof to the contrary.

10—Amendment of section 45—Regulations

(1) Section 45(2)—after paragraph (e) insert:

and

(f) make provisions of a saving or transitional nature consequent on the amendment of this Act by another Act.

(2) Section 45—after subsection (2) insert:

(3) A provision of a regulation made under subsection (2)(f) may, if the regulation so provides, take effect from the commencement of the amendment or from a later day.

(4) To the extent to which a provision takes effect under subsection (3) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by—

(a) decreasing the person's rights; or

(b) imposing liabilities on the person.

Consideration in committee.

The Hon. R.A. SIMMS: I move:

That the House of Assembly's amendments be agreed to.

Motion carried.