The Heritage Act is under review and we’ve had our say

The Heritage Act 1977 (NSW) is under review and we have made a detailed submission. While there are parts of the Heritage Act which may benefit from review, we consider that wholesale repeal or revisiting of the Act is not necessary. What we would like to see is a benchmarking exercise to develop a cohesive, national approach to heritage protection and adaptive reuse.

Snapshot

• The NSW Legislative Council’s Standing Committee on Social Issues (Committee) has received over 290 submissions to its review of the Heritage Act 1977 (NSW) (Heritage Act). The submissions are now available on the Committee’s website.
• We made 13 recommendations in our submission, including that the Committee undertake a benchmarking exercise to develop a cohesive, national approach to heritage protection, and that the Heritage Act support self-determination and custodianship in the protection of Aboriginal cultural heritage.
• As the next step, the Committee will conduct hearings. It will then prepare its report to the Government.

Background

On 13 May 2021, the Committee was asked to inquire into the Heritage Act, with particular reference to the issues raised in the NSW Government’s discussion paper.

More information on the review is available in our earlier post on this topic.

Our submission

Heritage protection and adaptive reuse is an important issue in many of our projects. We took the opportunity to raise issues that are important to us and our clients based on our national team’s experience with heritage in NSW and the different approaches taken elsewhere in Australia. Our submission can be viewed here.

Our key recommendations include:

• Need to benchmark against other jurisdictions — The Heritage Act does not require wholesale repeal or revisiting. Rather, the Committee should undertake a benchmarking exercise to develop a cohesive, national approach to heritage protection (recommendation 1).
• Aboriginal heritage — The Heritage Act should be amended to reform heritage listing requirements for items with State significant Aboriginal values to support self-determination and custodianship in the protection of Aboriginal cultural heritage. Further, the Heritage Act review should be undertaken simultaneously with the development of standalone Aboriginal cultural heritage legislation (recommendations 2 and 3).
• Landscape protection — Although cultural landscapes can be listed on the Register in theory, they have not been well protected under the current and previous approaches to heritage protection in NSW, unlike in other jurisdictions where heritage values in landscape are more expressly celebrated. The Committee should consider the listing of cultural landscapes with State significance (recommendation 4).
• Community involvement — The Committee should consider facilitating a community-driven nomination process through amending the Heritage Act and developing factsheets for the public (recommendations 5 and 6).
• Amending/removing heritage listings — The provisions in the Heritage Act for amending and removing heritage listings should be brought in line with those in other Australian jurisdictions (recommendations 7–10).
• Enforcement and investigative powers — The Heritage Act should provide for intermediate enforcement powers and investigative powers in line with other NSW environmental legislation (recommendations 11–12).
• Categorised listing system — In deciding whether to implement a categorised listing system, the Committee should have regard to learnings from other jurisdictions, the distinction between having different listing categories and having item-specific management requirements, and the risk of diminishing the protection of listed items (recommendation 13).

Next steps

The Committee will conduct a hearing on 2 August 2021 with Government witnesses and further hearings on dates to be announced. The Committee will then prepare its report to the Government.

We will provide updates on the progress of this review.

Get in touch with all your NSW heritage questions.

By Peter Briggs, Partner, Rebecca Davie, Senior Associate, Zhongwei Wang, Solicitor and Brigitte Rheinberger, Solicitor

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