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1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
EXPLANATORY
MEMORANDUM
(Circulated
by Authority of the Minister for the Environment and
Heritage
Senator the Hon Robert
Hill)
ISBN: 0642 426201
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 will be required to manage
the sites with the objectives
of:
• ensuring that management of Trust
land contributes to preserving the amenity of the Sydney Harbour
region;
• conserving the environmental and
heritage values of Trust land, and establishing suitable land as a
park;
• maximising public access to Trust
land; and
• cooperating with other
Commonwealth, New South Wales and local government
bodies.
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 and with a sustainable financial base for their ongoing
management.
The Trust will consist of a
Chair and five Members, appointed by the Minister for the Environment and
Heritage. The Government of New South Wales will be invited to nominate two
Members for appointment to the Trust. A full-time Executive Director is to be
appointed to the Trust, and other staff and consultants may be
hired.
The Bill provides for the Trust to
develop management plans for the sites within 18 months of the land being vested
in the Trust. Management plans must be developed with full community
participation, and are subject to approval by the Minister for the Environment
and Heritage.
The Bill provides that the
Trust will establish a community advisory committee in respect of each
management plan area, for the purpose of providing advice to the Trust on issues
relevant to the management plan area. The Trust must consider the advice or
recommendation of these committees. Additionally, the Trust may establish a
technical advisory committee.
The Trust is
expected to work in close cooperation with the New South Wales government and
local government authorities, and is fully empowered to do
so.
Due to the need to commence management
planning as soon as possible for five Sydney Harbour Defence sites (North Head,
Georges Heights, Middle Head, Woolwich and Cockatoo Island), the Minister for
the Environment and Heritage issued a media release, on 13 March 1999,
announcing that the Commonwealth Government would establish an interim Trust to
commence planning and public consultation. The Bill provides for actions
undertaken by the Commonwealth on behalf of the interim Trust in relation to a
management plan to be considered as having been performed by the
Trust.
The Trust will receive $40 million from the
Commonwealth towards the decontamination of Cockatoo Island. The Bill provides
a range of measures to allow the Trust to develop a sustainable financial base.
This will include the ability to take advantage of economic opportunities,
consistent with maintaining the amenity and environment and heritage values of
the Trust lands. The Trust will be given the capacity to borrow on commercial
terms, with the approval of the Minister for Finance and
Administration.
SYDNEY HARBOUR FEDERATION TRUST BILL
1999
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 1999.
2 This clause provides that the Act will commence on a
day to be fixed by proclamation, but not more than six months after receiving
Royal Assent.
3 This clause defines a number of terms used in the
Bill, including the “interim Trust” which the Commonwealth
established to commence planning and public consultation on five defence sites:
North Head, Georges Heights, Middle Head, Woolwich and Cockatoo
Island.
4 This clause means that the Act binds the Commonwealth
and the States.
5 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.
6 This clause sets out the objects of the Trust when
managing Commonwealth places in the Sydney Harbour region. The Trust will
ensure that the management of Trust land contributes to the amenity of the
Sydney Harbour region. It will conserve environmental and heritage values of
the land, maximising public access whenever possible. It will cooperate with
other Commonwealth, State and local government bodies to ensure these objectives
are met.
7 This clause sets out all the functions of the Trust
that will enable it to meet its objects. Broadly, the Trust is required to hold
and manage Trust land in accordance with management plans that it has developed
in consultation with the community.
8 This clause sets out the powers of the Trust. The
Trust should be able to do anything that is necessary or convenient to be done
for, or in connection with, performing its functions. The intention is that the
Trust should be financially independent and able to ensure that management of
Trust land is economically sustainable into the future.
9 This clause provides that the Minister may give
written directions to the Trust, and that the Trust must comply with those
directions. Such directions cannot be contrary to the powers and functions of
the Trust. This is a fairly standard clause in legislation that enables the
Minister to issue instructions where unforeseen circumstances arise that require
ministerial direction. Note that Clause 71 requires the text of any Ministerial
directions to be recorded in the annual report of the Trust.
10 This clause provides that the Trust shall consist of
six persons – the Chair and five other members.
11 This clause provides for the Minister for the
Environment and Heritage to invite the New South Wales Government to recommend
persons to be appointed to two membership positions on the Trust. This
recognises the interest of New South Wales in the management of the land and the
Commonwealth commitment to working closely with the New South Wales Government.
The intention is that the Trust should always have two members who have been
recommended by New South Wales. A time-frame of two months for New South Wales
to respond to an invitation to recommend persons is imposed so that the Minister
is in a position to ensure that there is a correct balance of
“suitable” persons, as required under Clause 12. However, the
Minister is entitled to appoint the four Commonwealth members before the
two-month period has elapsed.
12 This clause provides that the Minister must appoint
members in writing. He/she should only appoint persons that have relevant
qualifications and experience, and no more than half the 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,
however, reappoint members for further terms in accordance with subsection
33(4A) of the Acts Interpretation Act 1901.
14 The Minister may appoint a member to act as the
Chair when there is no Chair, or the Chair is absent. Should there be some
irregularity in the appointment of an Acting Chair, it will not invalidate any
decision or action of the Acting Chair.
15 These clauses relate to terms and conditions of
appointment. 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.
16 These clauses relate to the vesting of land in the
Trust and allow the Commonwealth to transfer sites to the Trust progressively as
Defence relocates. Other Commonwealth sites in the Sydney Harbour region may
also be vested in the Trust. The land is vested when the Minister places a
notice in the Gazette. All right, title and interest that the
Commonwealth holds in the land vests in the Trust without any conveyance,
transfer or assignment, from the date specified in the Gazette notice,
and the Trust will hold that land for and on behalf of the
Commonwealth.
17 If there is an existing
lease or agreement relating to land to be vested in the Trust, the Minister may
recognise that agreement in writing. The agreement will then continue to have
effect with the Trust substituting for the Commonwealth as a party to the
agreement.
18 Although the Trust has ten
years to rehabilitate the sites and return them to the people of Australia, this
task may be accomplished sooner. Clause 24 allows the Trust to transfer the
freehold interest in any Trust land with the approval of the Minister. While
much of the land will be transferred to New South Wales, some land may be
identified in the management planning process as unsuitable for park or
community use, and sold.
19 The Trust is required to prepare management plans
for any land within 18 months of that land being vested in the Trust, although
the Minister may extend this period if the Trust applies for an
extension.
20 This clause recognises the need for a holistic
approach to management of the sites and the possibility of combining certain
sites, for example Middle Head and Georges Heights. As the transfer of land to
the Trust will be staged due to a continuing Defence need to utilise parts of
some sites, it is important that the management plans also cover not only Trust
land, but also land to be vested in the Trust. The management plans will have
no effect over an area that is not vested in the Trust until that area is
actually transferred to the Trust.
21 It
also allows the Trust to consider other Commonwealth places that may not be
vested, and enables management planning for a Trust site to cover other nearby
Commonwealth sites.
22 The Minister must
approve a management plan area before a management plan is prepared for that
area. The management plan area may be amended, with the Minister’s
approval, before the draft plan for the area is approved.
23 This clause ensures that management plans must
accord with the objects of this legislation and defines what they must contain.
The content of plans will be expanded by regulation and endeavour to complement
existing New South Wales
processes.
Clauses 29 and 30 –
Consultation on proposal to prepare draft management plan, Consultation on draft
management plan
24 These clauses provide for
full community participation in the management 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
submissions.
25 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 may approve or reject the plan, or refer it back to the Trust for
alteration and/or further public consultations.
26 This clause describes the actions that must be taken
by the Trust if the Minister refers a management plan back to it.
27 If the Minister rejects a draft management plan, the
Trust is required to prepare a new draft following all the consultation
procedures that were required for the initial draft.
28 These clauses specify the procedures for notifying
that a management plan is approved and when it comes into force.
29 Amendments to management 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.
30 The Commonwealth, the Trust and other Commonwealth
bodies are bound to act in accordance with an approved management plan in the
area to which the plan applies, regardless of whether the plan is fully in
effect for the whole management plan area. This does not mean that any agency
is authorised or required to act illegally.
31 On 13 March 1999, the Minister for the Environment
and Heritage issued a media release announcing that the Commonwealth Government
would establish an interim Trust to commence planning and public consultation
for five Sydney Harbour Defence sites (North Head, Georges Heights, Middle Head,
Woolwich and Cockatoo Island). This clause provides for actions undertaken by
the Commonwealth on behalf of the interim Trust (prior to enactment of this
legislation) in relation to a management plan to be considered as having been
performed by the Trust. Should any Commonwealth actions in relation to
management plans be contrary to the legislation, the Trust would be deemed not
to comply and would need to rectify the situation.
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
32 These clauses deal
with the appointment, 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, 51, 52, 53, 54, 55 and 56, Times and
places of meetings, Notice of meetings, Presiding at meetings, Quorum, Voting at
meetings, Conduct of meetings, Resolutions without
meetings
33 These clauses deal with meetings
of the Trust that must be held at least four times per year. Trust meetings are
not intended to be public meetings, but the Trust may regulate the proceedings
of its meetings as it sees fit.
34 This clause provides that community advisory
committees must be established by the Trust for each management plan area.
Appointment of persons to the committee is by the Trust, and the number of
persons is left to the discretion of the Trust. The committees are likely to
vary in size from area to area, but each should be representative of all the
local interests, whilst not becoming unwieldy. It is intended that the
committee would be a voluntary body. The Trust is required to consider any
advice or recommendations from the committees.
35 This clause provides that a technical advisory
committee may be established by the Trust. Such a committee, if established,
must consist of appropriately qualified or experienced persons to advise the
Trust on specified technical matters. It is intended that the committee would
be a voluntary body. The Trust must consider any relevant advice or
recommendation by the committee.
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
36 Whilst it is intended that the
Trust should be self-funding, these clauses relate to the financing of the Trust
through Parliamentary appropriations and the borrowing of money from the
Commonwealth or other sources. The Minister for Finance and Administration has
responsibility for these matters. Written approval of the Minister for the
Environment and Heritage is required before the Trust may enter into certain
contracts or leases.
37 Provision is made in
clause 61 for the Trust to be liable for costs incurred by the Commonwealth in
establishing an interim Trust prior to commencement of this legislation (refer
to explanation of Clause 38 above). Until the Trust is established by
legislation and has become financially viable, the Commonwealth has provided
monies to implement the decisions of the interim Trust. The monies will need to
be repaid in due course.
38 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.
39 This clause provides for the Act to be repealed as
soon as practicable after ten years. 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 and with a sustainable financial base for their ongoing management. The
intention is that the Trust should complete its task within ten years. After
that time, the Commonwealth intends to transfer suitable lands to the New South
Wales government for inclusion in the Sydney Harbour National Park. The future
management of other lands will be considered at that
time.
Clauses 67, 68 and 69 –
Transfer of assets, Transfer of liabilities, Residual assets and
liabilities
40 These clauses provide for the
Minister to declare what is to be done with any assets or liabilities that the
Trust may have at the time of winding-up. The declarations are to be published
in the Gazette.
41 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 management 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.
42 This clause ensures that the Trust is not
constrained in its activities by State laws that might affect the management of
the land. It is not the intention to circumvent State laws but, in accepting
its responsibility to secure the future of the sites, the Commonwealth believes
that the Trust must be able to operate with a certain degree of autonomy. The
Trust is expected to work in close cooperation with the New South Wales
government, and is fully empowered to do so through its objects (clause 6) and
powers (clause 8). There is also a strong commitment to public consultation in
the development of management plans for each site (clauses 29 and 30), and
management plans will be enforced through the Regulations.
43 This clause enables the Trust to delegate its powers
and functions to the Executive Director, an employee of the Trust, or a senior
officer of the Department of the Environment and Heritage. Such power of
delegation is considered prudent for efficient operation of the
Trust.
44 This clause provides for Regulations to be made
under the Act. Amongst other things, the Regulations will specify any details,
additional to those specified in Clause 28, of the content of management plans
and will specify and give effect to regulatory and enforcement measures,
including the appointment of wardens and rangers. The Regulations will also
enable arrangements to be made with Commonwealth and State agencies for
enforcement purposes.