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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
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Bills

Heritage Places (Protection of State Heritage Places) Amendment Bill

Committee Stage

In committee.

Clause 1.

Mr COWDREY: My question is a broad one to start in regard to a number of the provisions that have been entered into this bill. In particular, we obviously have significant increases in penalty provisions around damage and neglect, ERD Court orders where penalty provisions have been changed significantly and there are also some changes to the protection orders of heritage buildings.

My question is a simple one. Those who have taken a keen interest in the proceedings to this point tonight will have been witness to a significant discussion or debate in regard to the Crown and Anchor Hotel. The government has taken a decision not to include, or to specifically exclude, the Crown and Anchor Hotel from any application from the Heritage Places Act including, as was quite strangely referenced by the minister, the proposed changes that were coming here tonight in regard to this bill.

My question again is quite broad and simple, about the additional protections and penalty provisions that are in this act, that are, as I see it, a mechanism to provide increased protection to ensure that there is not a state of disrepair, to ensure that there is less chance of destruction through disrepair, and provide significant penalties to that end. Can the minister confirm that none of these additional provisions that are being provided through the passage of this bill will apply to the Crown and Anchor Hotel?

The Hon. S.E. CLOSE: There is no certainty that the Cranker would have been declared a State Heritage Place so it is speculative whether or not this legislation, should it go through, would in fact have covered the Cranker. Obviously it is provisionally listed at present because the decision was made that that was necessary to safeguard the process of consideration by the SCAT while the Heritage Committee Council considered the merits of its inclusion or not.

A decision was taken that in creating an entire act, part of which is dedicated to the protection of the fabric of the building, it was unnecessary to have a duplication of acts sitting across. But, as I say, it is in fact hypothetical whether or not the Crown and Anchor would have been protected under the State Heritage Places.

Mr COWDREY: Do you, minister—I assume given the fact that the government is bringing amendments to this bill and has the intention to pass it as best as I am aware to this point—believe that these are heritage protections that are an improvement on the current situation and provide appropriate heritage protection of buildings deemed as being reasonable heritage value to South Australia?

The Hon. S.E. CLOSE: Sorry, do I consider that the bill that we are supporting and the amendments that we are proposing are reasonable for the protection of heritage? Yes.

Clause passed.

New clause 1A.

The CHAIR: Minister, do you have an amendment?

The Hon. S.E. CLOSE: I do. I move amendment No. 1 standing in my name, about the proclamation of the act:

Amendment No 1 [ClimateEnvWater–1]—

Page 2, after line 5—After clause 1 insert:

1A—Commencement

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

Mr BATTY: Can I ask why the minister is moving this amendment?

The Hon. S.E. CLOSE: It was something that ought to have probably been included in the first place in the bill and we have inserted it in order to allow for the commencement of the bill.

Mr BATTY: What is the effect of this amendment? But for this amendment, when would this legislation commence? If we do not support this amendment, when would this legislation commence?

The Hon. S.E. CLOSE: The advice that I am receiving is that it was necessary in order to be able to allow the act to commence. If there is further advice, we will get that back to you later.

Mr BATTY: On the face of this amendment, it appears that it is an attempt to delay the commencement of this act. I think, if we did not have this amendment, we could pass this legislation tonight. It could be sent to the Governor and it would commence immediately. What this allows you to do is pick a future date. It could be days, it could be weeks, it could be months, it could be years for this act to come into effect.

I refer to a joint press conference that you attended with the Greens during the Dunstan by-election on 6 March, where you announced your new, strengthened heritage policy—something the Liberal party supported in the other place, of course—and rushed it into here with somewhat a sense of urgency. We have now seen six months pass since that press conference during the by-election, and we have not seen this legislation progress until now. Even now, when you are trying to progress it six months after your press conference during the by-election, you are trying to delay it even further.

The member for Dunstan posted on social media soon after that press conference:

I've spoken to thousands of people in our community over the last three years and what has consistently been raised is the desire to protect our built heritage.

Today, the Malinauskas government announced they will support a bill to protect South Australia's heritage places…I know my community wants their history and heritage protected and these new laws will do just that.

They will not if they never commence, minister. Is it the case that Labor only care about heritage when it is election time? You announced this during a by-election. You do not do anything about it for six months. You come back now and you try to delay it even further. Labor only care about heritage at election time.

Mr Patterson: So cynical.

The CHAIR: Member for Morphett, we do not need any commentary, thank you.

Mr Patterson: Sorry, I thought it would help.

The CHAIR: It would help if you actually did not provide commentary, thanks very much.

The Hon. S.E. CLOSE: I think the mark of the fact that we are taking this seriously is that we are sitting after 9 o'clock at night in order to be able to address this piece of legislation. There is absolutely no intention of delaying, once this bill is through, in enacting it. It is orthodox to have a clause like this in order to make sure that we have all of the procedures in place, in particular relating to any penalty regime, but there is no intention to delay.

The committee divided on the amendment:

Ayes 24

Noes 10

Majority 14

AYES

Andrews, S.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brown, M.E. Champion, N.D.
Clancy, N.P. Close, S.E. Cook, N.F.
Fulbrook, J.P. Hildyard, K.A. Hood, L.P. (teller)
Hughes, E.J. Hutchesson, C.L. Koutsantonis, A.
Michaels, A. Mullighan, S.C. O'Hanlon, C.C.
Pearce, R.K. Picton, C.J. Savvas, O.M.
Szakacs, J.K. Thompson, E.L. Wortley, D.J.

NOES

Basham, D.K.B. Batty, J.A. (teller) Cowdrey, M.J.
Gardner, J.A.W. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Teague, J.B. Telfer, S.J.
Whetstone, T.J.

PAIRS

Stinson, J.M. Tarzia, V.A. Odenwalder, L.K.
Hurn, A.M. Malinauskas, P.B. Pratt, P.K.

New clause 1A thus inserted.

New clauses 1B to 1J.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [ClimateEnvWater–1]—

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.

New clauses inserted.

Clause 2 passed.

Clause 3.

The Hon. S.E. CLOSE: I move:

Amendment No 3 [ClimateEnvWater–1]—

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.

Amendment No 4 [ClimateEnvWater–1]—

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.

Amendment No 5 [ClimateEnvWater–1]—

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.

(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).

Amendments carried; clause as amended passed.

New clause 3A.

The Hon. S.E. CLOSE: I move:

Amendment No 6 [ClimateEnvWater–1]—

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).

New clause inserted.

Clause 4.

The Hon. S.E. CLOSE: I move:

Amendment No 7 [ClimateEnvWater–1]—

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.

Amendment No 8 [ClimateEnvWater–1]—

Page 3, after line 9—Insert:

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

Amendments carried; clause as amended passed.

Clause 5.

The Hon. S.E. CLOSE: I move:

Amendment No 9 [ClimateEnvWater–1]—

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.

Amendment No 10 [ClimateEnvWater–1]—

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)

Amendment No 11 [ClimateEnvWater–1]—

Page 3, lines 18 to 37 [clause 5(3)]—Delete subclause (3)

Amendments carried; clause as amended passed.

New clause 5A.

The Hon. S.E. CLOSE: I move:

Amendment No 12 [ClimateEnvWater–1]—

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.

This amendment creates a new clause 5A.

New clause inserted.

Clause 6.

The Hon. S.E. CLOSE: I move:

Amendment No 13 [ClimateEnvWater–1]—

Page 4, after line 5—Insert:

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

, 39A, 39B or 39C

Amendment carried; clause as amended passed.

New clauses 7 to 10.

The Hon. S.E. CLOSE: I move:

Amendment No 14 [ClimateEnvWater–1]—

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.

New clauses inserted.

Long title passed.

Bill reported with amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (21:17): I move:

That this bill be now read a third time.

In so doing, I thank people for their contributions. I note that there was what could be described as a little bit of theatre to try to drum up a story that by including a perfectly standard clause that enables the government to control the day of the commencement of the act in order to ensure that the very serious penalty clauses that are associated with this have been lined up fairly and appropriately, that that somehow implies a delay.

It is true that the honourable member from the other place, Robert Simms, introduced this legislation some time ago. It is also true that it is neither orthodox nor common for government to take on private members' bills entirely as they are when they take them from the other chamber.

While we were very happy to support it, we wanted to make sure that we were not only able to strengthen it but also able to ensure that its impact on the community—which is something that we are in a position to consult on and to understand in a way that it is very difficult for a member of a minor party to do—was able to be taken into account. That perfectly orthodox approach in making sure that the legislation was appropriate and useful for the public has, of course, taken a period of time and also requires us to be in control of the date of commencement. Any suggestion that that adds up to a delay in wanting to look after heritage is a nonsense.

The government has committed an extra $1 million a year for 10 years to heritage, which is going out to support people who own state heritage places, it is going out to work through the backlog of nominations that have been made for state heritage consideration, and it has been going to making sure that we have the best possible legislation and legislative regime around heritage. The work that my advisers have been doing on that has been of extreme value. Therefore, I am pleased that we were able to sit late tonight in order to get this important piece of legislation through, and I undertake that it will be enacted in the legislation as rapidly as possible.

Bill read a third time and passed.

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