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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
REVISED EXPLANATORY
MEMORANDUM
(Circulated by
Authority of the Minister for the Environment and
Heritage
Senator the Hon Robert Murray
Hill)
THIS
MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS
INTRODUCED
ISBN: 0642 439702
The Commonwealth Government, in its 1998 election
commitment, Protecting the Sydney Harbour Foreshore, stated that it was
committed to preserving the Sydney Harbour foreshore for future generations.
The Government announced that, as the Department of Defence relocates from
certain sites around Sydney Harbour, it would establish a Trust to assume
management and planning responsibilities for those
sites.
The object of this Bill is to
establish the Sydney Harbour Federation
Trust.
The Trust objects are
to:
• acquire, hold and preserve Trust
land for the benefit and inspiration of present and future
generations;
• remediate, rehabilitate,
conserve and interpret that land in accordance with appropriate conservation and
management plans;
• protect and conserve
the environmental significance of Trust land, including its natural, heritage,
historic, indigenous and cultural
significance;
• ensure public ownership
and control of Trust land;
• maximise
public access to Trust land;
• conserve
and manage Trust land consistently with such land becoming a national park, and
in accordance with New South Wales
law;
• transfer right, title and interest
in all Trust land to New South Wales within ten years for no consideration for
inclusion in Sydney Harbour National Park or retention in public ownership by
New South Wales for the benefit of the people of Australia;
and
• cooperate with the Commonwealth, New
South Wales, local government bodies and community groups in furthering the
above objects.
The Trust will be a
transitional body, for a maximum of ten years, to ensure that the
Commonwealth’s duty to rehabilitate five defence sites (listed in Schedule
1 of the Bill) is fulfilled, and that all the lands are transferred to New South
Wales for incorporation into the Sydney Harbour National Park, or otherwise
retained in public ownership by the State. The Bill also provides for further
Commonwealth lands around Sydney Harbour to be vested in the Trust before
transfer to New South Wales within the ten-year life of the
legislation.
The Trust will consist of a
Chair and seven Members, appointed by the Minister for the Environment and
Heritage after advertising for expressions of interest from suitable persons.
Three of these members are to be nominated by the Government of New South Wales
(one of the New South Wales nominees being a representative of a relevant local
government body). One member is to be nominated by the New South Wales
Aboriginal Land Council. A full-time Executive Director is to be appointed to
the Trust, and other staff and consultants may be hired. Meetings of the Trust
are generally to be held in public.
The
Trust is to develop plans for the fives sites (Cockatoo Island, Georges Heights,
Middle Head, North Head and Woolwich) within specified timeframes from the
commencement of the Act (on which date the five listed sites vest in the Trust).
Plans must be developed with full community participation, consultation with the
New South Wales Minister responsible for the Sydney Harbour National Park,
endorsed by the Trust, and approved by the Minister for the Environment and
Heritage. Plans are subject to close public scrutiny throughout the process.
They are also disallowable instruments.
The
Bill provides that the Trust will establish a community advisory committee in
respect of each plan area, for the purpose of providing advice to the Trust on
issues relevant to the plan area. The Trust must consider the advice or
recommendation of these committees. Additionally, the Trust may establish one
or more technical advisory committees.
The
Trust is subject to New South Wales law and may also enter into agreements with
the Commonwealth, New South Wales and local government authorities for
enforcement and other purposes.
The
Commonwealth Government has established an interim Trust to commence planning
and public consultation, and the Bill provides for the Commonwealth to be liable
for any costs or liabilities incurred by the interim Trust.
The Trust will receive $40 million from the
Commonwealth towards the decontamination of Cockatoo Island. A further $6
million has been allocated from the Federation Fund for the 2000/2001 and
2001/2002 financial years. The Bill allows the Trust to receive parliamentary
appropriations, and to accept gifts, grants, bequests and devises made to it.
The Trust may also borrow monies but may not use Trust land as
security.
SYDNEY HARBOUR FEDERATION TRUST BILL
2000
The Bill is for an Act to establish the Sydney
Harbour Federation Trust, and for related purposes.
1 This clause provides for the Act to be cited as the
Sydney Harbour Federation Trust Act 2000.
2 This clause provides that the Act will commence on a
day to be fixed by proclamation, but if not effected earlier, it will be
proclaimed automatically six months from receiving Royal Assent.
3 This clause specifies the purpose in establishing the
Sydney Harbour Federation Trust. This includes rehabilitation of Trust land, and
transfer of the land to New South Wales for incorporation into the Sydney
Harbour National Park. This is to occur within ten years using Commonwealth
funding.
4 This clause defines a number of key terms used in the
Bill.
5 This clause which binds the Crown in each of its
capacities has the effect of binding the Commonwealth and the
States.
6 This clause provides for the establishment of the
Sydney Harbour Federation Trust as a body corporate with perpetual succession.
The Trust may have a common seal, and may sue or be sued in its corporate name.
Any document bearing the seal of the Trust is to be presumed to be duly sealed.
The Trust is subject to the Commonwealth Authorities and Companies Act
1997.
7 This clause sets out the objects of the Trust when
managing Commonwealth places in Sydney Harbour. Broadly the Trust will
rehabilitate and conserve Trust land with a view to ensuring public ownership
and control of the land, maximise public access to it and, within ten years,
give the land (for no consideration) to New South Wales for inclusion in the
Sydney Harbour National Park or retention in public ownership. The Trust will
cooperate with other Commonwealth, State and local government bodies and
community groups to ensure these objectives are met.
8 This clause sets out all the functions of the Trust
that will enable it to meet its objects. In doing so, the Trust is required to
develop and implement plans for Trust land in accordance with specified
references, and to conserve and manage the land, in consultation with the
community, and with a view to the land becoming a national park. The clause
also enables the Trust to do certain things on Trust land before a plan takes
effect for that land, subject to the limitations imposed by clause 38A. Other
functions are specified.
9 This clause sets out the powers of the Trust enabling
it to do anything that is necessary to carry out its objects and perform its
functions. Among the specified powers, the Trust can enter into short-term
leases for up to 10 years from the commencement of the Act, and raise money by
other specified means. It cannot use Trust land as security for borrowings.
The Trust has no power to sell or transfer an interest in Trust land (other than
to New South Wales, and this must be in accordance with the objects, functions
and powers).
10 This clause provides that the Minister may give
written directions to the Trust in accordance with the objects, and that the
Trust must comply with those directions in a way that is consistent with its
objects, functions and powers. The Minister is, however, restricted to giving
directions only where the Trust fails to perform its duties and only where it is
reasonable to give such a direction. The Minister must also have regard to
relevant New South Wales laws and must publish the reasons for his directions.
Note that Clause 70 requires the text of any Ministerial directions to be
recorded in the annual report of the Trust.
11 This clause provides that the Trust shall consist of
eight persons – the Chair and seven other members.
12 This clause provides that the Minister must appoint
members in writing. Three (including one local government representative) of
these members are to be nominated by New South Wales, and one nominated by the
NSW Aboriginal Land Council. The other four, including the Chair, are
Commonwealth nominees. Note however, that the Minister must not appoint any
members unless he/she has first advertised publicly for expressions of interest
from suitable persons. Note also that no more than three members of the Trust
may be public employees (whether Commonwealth, State/Territory or local
government).
13 Members of the Trust are to be appointed on a
part-time basis for a period not exceeding three years. The Minister may
reappoint members. Members may not engage in any paid employment or conduct
that conflicts, or may conflict, with the proper performance of the
member’s duties. Remuneration is specified, and terms and conditions can
be specified by Regulation.
14 This clause sets out the circumstances under which a
member’s appointment may be terminated, and also allows a member to resign
in writing. The Minister must first consult New South Wales before terminating
the appointment of one of its nominees. Note that members are subject to the
Commonwealth Authorities and Companies Act 1997, and are required to
disclose material personal interests under section 21 of that Act. Furthermore,
clause 56A requires disclosure of pecuniary interests and failure to do so is a
ground for termination of appointment.
(Clauses 21 and 23 omitted)
15 The effect of these clauses is that all land listed
in Schedule 1 vests in the Trust from the commencement of the Act, and that the
regulations may prescribe other Commonwealth land that may later be vested. In
the latter case, the land is vested from the date specified in the required
Gazette notice placed by the Minister. The specified Commonwealth
property rights in the land will vest in the Trust without any legal formalities
(conveyance, transfer or assignment). The Trust will hold the land for and on
behalf of the Commonwealth until remediation and rehabilitation is completed,
when the land must be transferred to New South Wales. Prior to this, land may
be transferred to New South Wales, with its consent. In any event, all land
must be transferred to New South Wales before the tenth anniversary of the
Act’s commencement. Disposal by the Trust of specified property rights is
specifically excluded from the operation of the Lands Acquisition Act
1989.
16 The Trust is required to prepare plans (as defined
in clause 3) for the Trust land at Middle Head, Georges Heights and North Head
within 18 months. The Trust is given 2 years to prepare plans for Woolwich and
Cockatoo Island. The Minister may extend these periods if the Trust applies for
an extension and providing the Trust has notified the public of its application
and reasons for seeking an extension.
17 ‘Plan area’, referred to in clause 3, is
defined in this clause as the whole of a Trust land site (identified in Schedule
1 or in the regulations); a plan cannot apply to a part of such a site. A plan
may, however, apply to other Sydney Harbour land that has not vested in the
Trust. In that case, the plan will have no effect over that area until transfer
to the Trust has taken place.
18 This clause ensures that plans must accord with the
objects of this legislation and defines what they must contain and the
considerations that the Trust must have in preparing a
plan.
Clauses 29 and 30 –
Consultation on proposal to prepare draft plan, Consultation on draft
plan
19 These clauses provide for full
community participation in the planning process. Persons may make written
submissions on both the initial proposal to draft a plan and on the draft plan
itself. The Trust is required to take into account the public submissions (that
must be made by a specified date), advice or recommendations from an advisory
committee (established under clauses 57 and 58), and any other
submissions.
20 All draft plans are required to be submitted by the
Trust to the Minister, together with a report on all public consultations. The
report would be a summary of the main representations and issues raised. The
Minister must refer the draft plan to the State Minister responsible for the
Sydney Harbour National Park, and take into account the State Minister’s
comments. The Minister may then support the draft plan, or suggest alterations,
or make recommendations to the Trust.
21 Once the Minister has considered the draft plan and
suggested any alterations or made any recommendations, the Trust must consider
the draft plan again, together with the written report it made to the Minister
on its public consultations, any suggested alterations or recommendations of the
Minister or the State Minister, any advice or recommendations from advisory
committees, any public submissions, and the objects, functions and purpose of
the Act. Following this, the Trust must endorse the plan with or without
alteration, and then publish its decision and reasons for its decision. The
endorsed plan is then to be forwarded to the Minister for
approval.
22 The Minister may approve or reject the plan but, if
he/she rejects it, the Minister must not do so unreasonably, and must act in
accordance with the Act, and give public notice explaining why the plan has been
rejected.
23 If a plan is approved by the Minister, the Trust is
required to give public notice of its approval. The plan will come into force
for the plan area on the date specified in the public notice. Note, however,
that clause 27 contains an exception to this rule for land that has not vested
in the Trust.
24 Amendments to plans may be prepared by the Trust
following all the procedures for public consultation and ministerial approval as
required for the drafting of the initial plan. If the amendment includes a
change to the plan area (refer to clause 27), the Minister must first of all
approve that change.
Clause 36A - Plans
to be disallowable
25 Parliament may
disallow a plan, including an amendment to a plan.
26 The Commonwealth, the Trust and other Commonwealth
bodies are bound to act in accordance with an approved plan in the area to which
the plan applies, regardless of whether the plan is fully in effect for the
whole plan area (refer to clause 27). This does not mean that any agency is
authorised or required to act illegally.
27 The Trust is required to expedite implementation of
plans, employing competent and skilled people to do so. This clause provides
deadlines for implementation of plans (5 or 10 years after commencement of the
Act) for specified sites listed in Schedule 1. The Trust may apply to have the
5-year deadlines extended. (Note that clauses 34 and 35 provide procedures for
date of effect for a plan).
Clause 38A -
Transitional-activities before plans take
effect
28 The Trust may undertake specified
activities on Trust land before a plan has been approved for that land. The
plan is the essential instrument that determines how Trust land will be managed
and what activities are permitted on the land. During the time permitted under
clause 26 for the development of plans, there are some legitimate activities
that the Trust must be able to perform. Broadly, these activities are
performing essential maintenance and security, granting short-term leases and
licences, and undertaking works to ensure public health and safety. In doing
any of these specified activities, the Trust is required to ensure that such
activities do not cause significant damage and are not prejudicial to future
management decisions determined under the planning
process.
Clause 38B - Transitional-leases
and licences granted before plans take
effect
29 This clause is, like clause 38A,
transitional and relates to leases and licences granted by the Trust before a
plan takes effect for an area. Leases and licences must be restricted or dealt
with as specified or they can be void by operation of subclause 38A(6). Where a
plan takes effect and a lease or fixed term licence is in force, the plan will
prevail except to the extent that it interferes with the operation of the lease
or licence.
Clauses 39, 40, 41, 42, 43, 44, 45, 46, 47, 48,
49 – Executive Director, Duties of Executive Director, Term of office of
Executive Director, Acting appointments, Additional terms and conditions of
appointment of Executive Director, Outside employment of Executive Director,
Leave of absence, Resignation, Termination of appointment of Executive Director,
Employees, Consultants
30 These clauses deal
with the appointment, duties, terms and conditions, etc, of an Executive
Director and other staff or consultants. A full-time Executive Director, who is
not a member of the Trust, is to be appointed by the Minister. The Trust may
employ additional staff or engage consultants as considered
necessary.
Clauses 50, 50A, 50AA, 51, 52, 53, 54, 55 and
56, Times and places of meetings, Minutes of meetings, Meetings to be public,
Notice of meetings, Presiding at meetings, Quorum, Voting at meetings, Conduct
of meetings, Minutes of meetings and other
documents
31 These clauses deal with
meetings of the Trust that must be held at least four times per year. Trust
meetings are to be open to the public unless it is in the public interest that
the Trust meets in private. Minutes must be kept of all meetings, and the
minutes must be publicly available, including on the Internet. The Trust is
required to make publicly available all consultants’ reports, public
submissions, plans of all types and any other relevant documentation. The
intention is that everything the Trust does is in full public knowledge and open
to scrutiny. The Trust may reasonably regulate the proceedings of its meetings
in accordance with an adopted code of
practice.
Clause 56A - Disclosure of
pecuniary interest
32 If a member, or any
relative or business associate of the member, has any actual or potential
financial interest in a particular matter being discussed at a Trust meeting,
the member must declare that interest and not take part in the discussions or
voting.
33 This clause provides that community advisory
committees must be established by the Trust for each plan area. Appointment of
persons to each committee is by the Trust, and the number of persons is left to
the discretion of the Trust, but the persons must have relevant knowledge or
experience and must include nominees of the Defenders of Sydney Harbour
Foreshores (a Sydney-based non-government organisation) and the relevant local
government body. The Trust must consult the local community before appointing a
committee. The Trust and each committee must together establish the rules for
the way in which the committee will operate. The Trust is required to consider
any advice or recommendations from the committees. It is intended that the
committees would be voluntary bodies.
34 This clause provides that one or more technical
advisory committees must be established by the Trust. Such committees must
consist of appropriately qualified or experienced persons to advise the Trust on
specified technical matters. The Trust may direct the way in which a technical
advisory committee operates. It is intended that these committees would be
voluntary bodies. The Trust must consider any relevant advice or
recommendations from the committees.
Clauses 59, 60, 61, 62, 63, 64 and 65 –
Appropriation of money, Application of money, Interim Trust costs etc.,
Borrowing, Trust may give security, Contracts, Liability to
taxation
35 It is intended that the Trust
should be largely reliant on financing through Parliamentary appropriations.
The Trust may borrow money from the Commonwealth or other sources with the
Minister’s approval but may not use Trust land as security. Note that
clause 8 also allows the Trust to accept gifts, grants, bequests and devises
made to it. Written approval of the Minister is required before the Trust may
enter into contracts involving payment or receipt of more than $1
million.
36 Clause 61 provides that the
Commonwealth cannot recover from the Trust any costs or liabilities incurred by
the Commonwealth, before or after the commencement of this Act, in relation to
the interim Trust. As noted in clause 3, the interim Trust is an advisory body
established by the Commonwealth to commence planning and public consultation in
respect of certain Sydney Harbour
land.
37 Although clause 65 states that the
Trust is not subject to taxation, some other Commonwealth legislation, such as
the Fringe Benefits Tax Assessment Act 1986, explicitly overrides this
provision.
38 This clause provides for the Act to be repealed on
the tenth anniversary of the commencement of the Act, or on an earlier date
specified by the Minister if all land has been transferred to New South Wales.
As indicated in clause 2A, the Trust will be a transitional body to ensure that
the Commonwealth’s duty to rehabilitate the current defence sites is
fulfilled and that they are returned to the people of Australia in good order.
The Trust must complete its task within ten years. After that time, if not
before, all land will be transferred to the New South Wales government for
inclusion in the Sydney Harbour National Park or otherwise retained in public
ownership by New South Wales.
Clauses 67
and 68 – Transfer of assets, Transfer of
liabilities
39 These clauses provide for the
Minister to ensure that all Trust assets are transferred to New South Wales and,
if the Trust has any liabilities, that these become the responsibility of the
Commonwealth. The Minister is required to publish declarations about these
transfers of assets and liabilities in the
Gazette.
(Clause 69
omitted)
40 The Trust is required to report annually to
Parliament under the Commonwealth Authorities and Companies Act 1997.
Clause 1 of Schedule 1 to that Act requires “a report of
operations”, therefore, as management of the land and consultation are
part of the functions of the Trust, these matters would need to be covered in
the reports. Furthermore, an update on the condition of plan areas must also be
presented in the reports, together with any written directions that have been
made during the year by the Minister to the Trust and details of all contracts
with consultants, valued at $5,000 or more.
41 The Trust is subject in its operations to all New
South Wales laws.
42 This clause enables the Trust to delegate its powers
and functions only to the Executive Director. The Executive Director must
report regularly to the Trust on the exercise of the delegated powers and
functions and, in case there should be any doubt, this clause emphasises that
the Executive Director must comply with the legislation and the terms of the
delegation.
43 This clause provides for Regulations to be made
under the Act. Amongst other things, the Regulations will specify any
additional lands to be vested in the Trust, and any details, additional to those
specified in Clause 28, of the content of plans. The Regulations will also
enable arrangements to be made with Commonwealth and State agencies (including
relevant local councils) for enforcement
purposes.
Schedule 1 - Trust
lands
44 A Schedule of the initial five
sites that are to be vested in the Trust is included.