Summary of the EPBC Act Relating to Heritage

The EPBC Act protects heritage values on Commonwealth land. It lays down the rules and procedures that all Commonwealth agencies must follow to manage and protect heritage values on land they own, care for, affect or control. All properties with heritage values owned and managed by Defence must be managed in accordance with the EPBC Act.

How Does the EPBC Act Protect Heritage?

1. Heritage Lists

The first step in protecting heritage is identifying it! This is the purpose of Heritage Lists. There are three kinds of lists in the Commonwealth heritage regime and a very important heritage place may be included on all three lists. The EPBC Act establishes three heritage lists: the World Heritage List (WHL), National Heritage List (NHL) and the Commonwealth Heritage List (CHL):

• The World Heritage List
  The WHL List lists place of universal value. Shoalwater Bay Military Training Area, Tully Training Area, Cowley Beach Training Area are some of the Defence bases within a WHL. Several other Defence bases may be included within a WHL in the near future.

• The National Heritage List
  The NHL lists places of outstanding national significance. Defence has several bases on the NHL, including RAAF Williams, Point Cook and Learmonth Air Weapons Range.

• The Commonwealth Heritage List
  The CHL includes places which possess 'Commonwealth heritage values' and which are managed or owned by the Commonwealth. The CHL is still being added to. Defence has approximately 62 properties that contain approximately 120 places on the CHL (ie some of these properties have multiple buildings which are individually listed on the CHL). The EPBC Act requires that all CHL places are managed in accordance with a management plan. Defence aims to have management plans for all its CHL places by 2015.

The Register of the National Estate. Another list which is afforded some protection under the EPBC Act is the Register of the National Estate (RNE), which has existed since 1974 so it is a very important source of information about Australia's heritage. It continues to exist under the Australian Heritage Council Act 2003. Places listed on the Register that are on Commonwealth land, and places on the RNE that may be affected by Commonwealth actions, are covered by certain referral and approval requirements (Section 26 to 28 inclusive) of the EPBC Act. In making decisions under the EPBC Act, the Minister for the Sustainability, Environment, Water, Population & Communities is required to consider the RNE.

2. Controlling significant impacts on heritage values

The second way the EPBC Act protects heritage is through setting out a process to control the significant impacts on heritage values. The process is reasonably complex because it aims to be comprehensive. The controlling provisions of the EPBC Act are:

1. Part 3, Division 1: Requirements relating to Matters of National Environmental Significance (NES) – under this section of the Act any action that is likely to have a significant impact on matters of NES (which includes World Heritage places and National Heritage places) must be referred to the Minister for Sustainability, Environment, Water, Population and Communities.
2. Section 26: Requirement for approval of activities involving Commonwealth land and Section 28: Requirement for approval of activities undertaken by Commonwealth agencies - these sections of the Act require that any action that is likely to have a significant impact on the environment must be referred to the Minister for Sustainability, Environment, Water, Population and Communities. Heritage is considered in the definition of ‘environment’ under the EPBC Act.
3. Section 341ZC: Minimising adverse impacts on Commonwealth Heritage values - this section of the Act requires that a Commonwealth agency must not take an action that has, will have or is likely to have an adverse impact on the National Heritage values of a National Heritage place or on the Commonwealth Heritage values of a Commonwealth Heritage place, unless: (a) there is no feasible and prudent alternative to taking the action; and (b) all measures that can reasonably be taken to mitigate the impact of the action on those values are taken.

If a significant impact on heritage values cannot be minimised or avoided and the proposal is referred to the Minister for Sustainability, Environment, Water, Population and Communities, the Minister will then decide whether the proposal is a ‘controlled action’, or not a ‘controlled action’ provided the action is undertaken in ‘particular manner’, or not a ‘controlled action’. A ‘controlled action’ is an action that requires the Minister’s consent. If the proposal is a ‘controlled action’ then the Minister may request further assessments to be prepared.

Controlled actions might include such things as the modification of a heritage building or the subdivision of a heritage property. It might also include disposal of a heritage property (see Guide 11 of the Defence Heritage Toolkit)

A controlled action can only be undertaken after approval from the Minister for the Environment Protection, Heritage & the Arts has been obtained. Approval will only be given by the Minister where he or she has made a full assessment of the likely impacts of the proposed action and has determined that no significant impact will occur.

This process applies to all places with heritage values, not just those on the CHL, NHL or WHL. This is because the EPBC Act defines heritage as a part of the 'environment'.

Where can I refer to the legislation?

For an overview of the heritage laws, click on the link that takes you to the Department of Sustainability, Environment, Water, Population & Communities website.

Further information is available through the Department of Sustainability, Environment, Water, Population & Communitiesfact sheets

The National Environmental Legal Register (Intranet users only) contains a complete database of region specific Commonwealth, State and Local Government environment and heritage authorities and related legislation.