Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Sydney Harbour Federation Trust Act 2001, and for related purposes
Administered by: Agriculture, Water and the Environment
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 18 Mar 2021
Introduced HR 18 Mar 2021

 

 

 

 

 

2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

SYDNEY HARBOUR FEDERATION TRUST AMENDMENT BILL 2021

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for the

Environment, the Hon Sussan Ley MP)

 

 

 

 

 

 

SYDNEY HARBOUR FEDERATION TRUST AMENDMENT BILL 2021

GENERAL OUTLINE

The Sydney Harbour Federation Trust (the Harbour Trust) was established in 2001 as a transitional body by the Sydney Harbour Federation Trust Act 2001 (the Act). The Harbour Trust was established to remediate and manage prominent former Defence sites in the Sydney Harbour region for the benefit of present and future generations of Australians, with an eventual transfer of suitable land to New South Wales. 

 

The Independent Review of the Sydney Harbour Federation Trust 2020 was published on 18 June 2020. Twenty-one recommendations were made; the Government has agreed with the central recommendation of the review, that the Harbour Trust become an ongoing entity, and is working through all other recommendations. 

 

The Sydney Harbour Federation Trust Amendment Bill 2021 (the Bill) would, if passed, address four of these recommendations.

 

The Sydney Harbour Federation Trust Regulations 2001 (the Regulations) will sunset on 1 October 2021. Technical amendments to the Act will enable both the Act and regulations made under the Act to be modernised and aligned with current drafting practice. 

 

FINANCIAL IMPACT STATEMENT

There is no financial impact on the Commonwealth arising from the proposed amendments.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights in respect of the amendments contained in the Bill is at Attachment A. The Statement assesses the amendments to be compatible with Australia’s human rights obligations.


 

ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

The following abbreviations and terms are used in this Explanatory Memorandum:

 

ATSI Act

Aboriginal and Torres Strait Islander Act 2005

Act

Sydney Harbour Federation Trust Act 2001

Bill

Sydney Harbour Federation Trust Amendment Bill 2021

Guide

A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers

Harbour Trust

Sydney Harbour Federation Trust

Land

Under section 3 of the Act, includes buildings and improvement on the land

Legislation Act

Legislation Act 2003

Minister

means the Minister responsible for the administration of the Act, currently the Minister for the Environment

Regulations

Sydney Harbour Federation Trust Regulations 2001 and any other regulations made under the Act

Review

Independent Review of the Sydney Harbour Federation Trust

Trust land

Under section 3 of the Act, means any land that:

(a)    vests in the Harbour Trust; and

(b)   is held by the Harbour Trust from time to time for and on behalf of the Commonwealth

 


 

SYDNEY HARBOUR FEDERATION TRUST AMENDMENT BILL 2021

NOTES ON CLAUSES

Clause 1 – Short Title

1.        Clause 1 would provide for the ‘Sydney Harbour Federation Trust Amendment Bill 2021’, if enacted, to be cited as the Sydney Harbour Federation Trust Amendment Act 2021.

 

Clause 2 – Commencement

2.        This clause would set out, in a table, the date on which provisions of the Bill, if enacted, would commence.

 

3.        Table item 1 would provide for Sections 1 to 3 and anything not elsewhere covered in the table to commence on the day the Act receives the Royal Assent.

 

4.        Table item 2 would provide for Schedule 1, Parts 1, 2 and 3 to commence on the day after the Act received the Royal Assent.

 

5.        Table item 3 would provide for Schedule 1, Part 4 to commence on the later of:

(a)    immediately after the commencement of the provisions covered by table item 2; and

(b)   immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021.

 

Clause 3 – Schedules

6.        This clause would enable the Schedule of the Bill, if enacted, to amend or repeal provisions of legislation specified in that Schedule in accordance with the applicable items. In the context of the Bill, the Sydney Harbour Federation Trust Act 2001 is being amended.

 

 


 

SCHEDULE 1 — AMENDMENTS

Sydney Harbour Federation Trust Act 2001

Part 1—Review of the Trust

Ongoing operation of the Harbour Trust (Recommendation 5)

Background

7.        In the report of the Review, Recommendation 5 is that the Harbour Trust should operate as an ongoing entity:

·         the Act should be amended to remove Part 10 and other provisions related to the scheduled repeal of the Act; and

·         the Harbour Trust’s legislative, financial and operational framework and capabilities should reflect its role as an ongoing entity.

 

8.        Currently, Part 10 of the Act provides for the repeal of the Act. Part 10 comprises sections 66 to 69.

 

9.        Section 66 of the Act provides that, as soon as possible after the end of 19 September 2033, the Minister must publish a notice in the Gazette specifying a day on which the Act is to be repealed.  

 

10.    Sections 67 and 68 of the Act provide for the transfer of assets and liabilities to persons specified in a declaration by the Minister.

 

11.    Section 69 of the Act provides that any assets or liabilities that have not been included in a declaration under section 67 or 68 should vest in the Commonwealth.

 

Details of the amendments

Items 1, 2, 3 and 9

12.    Amendments made by items 1, 2, 3 and 9 together would enable the Harbour Trust to operate as an ongoing entity, in line with Recommendation 5.

 

13.    The amendment in item 9 would repeal Part 10 of the Act, which provides for the repeal of the Act as soon as practicable after the end of 19 September 2033, and the transfer of assets and liabilities of the Harbour Trust before the repeal of the Act.

 

14.    Item 1 would omit the reference in the Preamble to the Act to the establishment of the Harbour Trust as a “transitional body”. This amendment is consistent with the position that the Harbour Trust should operate as an ongoing entity.

 

15.    Item 2 would omit the final sentence of the Preamble of the Act, which states that the Harbour Trust “will transfer suitable land to New South Wales for inclusion in the national parks and reserves system”. Again, this amendment is consistent with the position that the Harbour Trust should operate as an ongoing entity.

 

16.    This item would also substitute words into the second paragraph of the Preamble which confirms the Harbour Trust’s role in protecting the heritage values of the land.

17.    Item 3 is a consequential amendment to the repeal of Part 10 and would repeal the definition of ‘repeal time’ in section 3 of the Act. This definition is used in Part 10 of the Act and is redundant following the repeal of Part 10.

 

Trust members (Recommendation 6)

Background

18.    Part 3 of the Act sets out the constitution of the Harbour Trust. Under section 10, the membership of the Harbour Trust consists of the Chair and seven other members. 

 

19.    Section 12 concerns the appointment of members of the Harbour Trust by the Minister and sets out criteria that must be met. Under subsection 12(2) the Minister must be satisfied that the person being appointed is a suitable person. Suitable person is defined in section 3 of the Act to mean a person with qualifications or experience relevant to one or more of the following fields:

·         environmental and heritage conservation or heritage interpretation;

·         Indigenous culture;

·         land planning and management;

·         business management; and

·         any other field relevant to the Harbour Trust’s functions.

 

20.    One of the members must represent the interests of Indigenous people (subsection 12(3)). One of the members must be an elected member of an affected council (subsection 12(3A)).

 

21.    In the Review, Recommendation 6 seeks to ensure that membership of the Harbour Trust reflects the skills and expertise required for the future. In particular, Recommendation 6(a) is that the Act should be amended to further specify that the appointment of each member of the Harbour Trust should be based on their expertise in one or more of the following areas (as listed in the Review): law, finance, asset management, commercial leasing, architecture, public administration, Indigenous engagement, heritage, environment, tourism and marketing.

 

22.    Recommendation 6(e) is that there should continue to be one member of the Harbour Trust who represents the views and interests of Indigenous Australians, and that this position should be filled in consultation with the Harbour Trust’s Aboriginal and Torres Strait Islander Advisory Group.

 

23.    Amendments to Part 3 of the Act would implement responses to Recommendations 6(a), (d) and (e).

 

24.    These proposed amendments to the Act would be complemented by other non-legislative actions to respond to Recommendation 6, which will enhance processes for appointments to the Harbour Trust. These will include:

·         drawing on an enhanced skills matrix maintained by the Harbour Trust, and regular reviews of capacity and performance;

·         establishing a process for engaging Indigenous Australians in relation to the appointment of Indigenous people to the Harbour Trust; and

·         establishing a process to publicly explain how competency requirements have been considered and addressed after each appointment is made.

 

Details of the amendments

Items 5, 6 and 7

25.    Item 5 would repeal the definition of ‘suitable person’ in section 3 of the Act. This amendment is consequential to the amendment made to subsection 11(4) by item 6.

 

26.    Item 6 would amend subsection 11(4) of the Act to substitute the requirement for NSW to recommend ‘suitable persons’ with a requirement to recommend ‘persons who have experience or knowledge in at least one of the fields listed in subsection 12(2)’.

 

27.    Item 7 would repeal subsections 12(2), (3) and (3A) and substitute new eligibility criteria for appointment as a member of the Harbour Trust. In particular, the Minister must be satisfied that the person has experience or knowledge in at least one of the fields specified under new subsection 12(2). 

 

28.    The fields of experience or knowledge in new subsection 12(2) are based on the repealed definition of ‘suitable person’ in section 3 of the Act. This amendment would, in light of the Review Recommendations, aim to provide an exhaustive list of fields of experience or knowledge: 

·         environment and heritage conservation or heritage interpretation;

·         Indigenous culture;

·         land planning and management;

·         business, financial, property or asset management;

·         tourism or marketing;

·         military service;

·         law.

 

29.    Under new subsection 12(3), one member would have to be an Aboriginal person or a Torres Strait Islander within the meaning of the ATSI Act, who is eligible for appointment under subsection 12(2).

 

30.    New subsection 12(3) would affirm the importance of Indigenous perspectives to the work of the Harbour Trust. The member who is an Aboriginal or Torres Strait Islander person may be, but does not need to be, the member that also provides the experience or knowledge on Indigenous culture.

 

31.    Under subsection 4(1) of the ATSI Act, ‘Aboriginal person’ means a person of the Aboriginal race of Australia and ‘Torres Strait Islander’ means a descendant of an Indigenous inhabitant of the Torres Strait Islands.

 

32.    Finally, under new subsection 12(3A) one of the members would have to be a person who, in the Minister’s opinion, provides a local government perspective and experience, as well as being eligible for appointment under subsection 12(2). 

 

33.    The requirements in new subsection 12(3A) would not preclude (or require) the appointment of an elected member or official of an affected council. This amendment would allow flexibility for the member with a local government perspective and experience to be a senior official of a council, as stated in Recommendation 6(d), a current or former elected councillor, or a person without current affiliation with a council.

 

Contracts (Recommendation 12)

Background

34.    Review Recommendation 12 is that the threshold for Ministerial approval of contracts should be revised to $5 million.

 

35.    This recognises the threshold has not been changed since the Act commenced in 2001. The practical effect of maintaining the threshold at $1 million is that the Minister is required to engage in routine operational business of the Harbour Trust by approving the entry into contracts for services such as landscape management, bushland management, cleaning and barging by the Harbour Trust, as well as contracts for minor works and maintenance. The increased threshold would enable the Harbour Trust to work efficiently and with appropriate operational independence.

 

36.    Part 9 of the Act concerns financial matters such as the appropriation, application and borrowing of money by the Harbour Trust. It also contains provisions relating to entry into contracts by the Harbour Trust.

 

37.    Section 64 provides that the Harbour Trust must not, except with the Minister’s written approval, enter into a contract involving the payment or receipt by the Harbour Trust of an amount exceeding $1 million, or enter into a lease or licence of Trust land for a period that ends after the end of 19 September 2033.

 

38.    The Bill contains amendments to section 64 that implement Recommendation 12.

  

Detail of amendments

Item 8 – Section 64

39.    This item would repeal sections 64 and 64A of the Act and substitute them with new sections 64, 64A, 64B, 64C and 64D. New sections 64A, 64B, 64C and 64D are discussed below, in the context of Review Recommendation 13.

 

40.    New subsection 64(1) would provide that the Harbour Trust must not, without the Minister’s written approval, enter into a contract involving the payment or receipt by the Harbour Trust of an amount exceeding $5 million.

 

41.    Under new subsection 64(2), in working out the amount under the contract, it is to be assumed that any option or right to extend or renew contained in the contract will be exercised, and requires that the amount under the contract as so extended or renewed is included. This would ensure the entire potential value of the contract is accounted for in determining whether the threshold has been reached.

 

42.    New subsections 64(3) to (9) would provide for the indexation of the threshold amount. This indexation mechanism would ensure that the $5 million threshold would be adjusted in line with changes to the All Groups Consumer Price Index published by the Australian Bureau of Statistics.

 

Leasing (Recommendation 13)

Background

43.    Review Recommendation 13 proposes changes to provisions related to long-term leases. The Act currently requires that the Harbour Trust must determine the proposed terms and conditions of any leases over 25 years in a legislative instrument that is disallowable by the Parliament. While this mechanism is intended as a control against inappropriate alienation of Trust land, the Review found that it is too blunt a tool and is unduly restraining potential uses of Harbour Trust sites that could further the objects of the Harbour Trust, (notably public access and amenity, and conservation and heritage).

 

44.    Leasing plays an important role in the revitalisation and public enjoyment of Harbour Trust sites, providing the opportunity for additional investment in heritage assets and enabling diverse experiences that benefit the community.

 

45.    Currently, section 64A of the Act provides that in addition to the requirements of section 64 (explained above), before entering into a lease or licence over Trust land for a period of longer than 25 years, the Harbour Trust must determine the proposed terms and conditions of a lease or licence. The determination of terms and conditions must be made in a legislative instrument. Under Part 2 of the Legislation Act, a legislative instrument must be tabled before each House of the Parliament and (unless exempt) may be disallowed by either House. A legislative instrument that is disallowed is taken to be repealed.

 

Proposed new process of entry into long leases or licences

46.    The Bill would repeal section 64A and insert new provisions, which would provide that the Harbour Trust must not enter into a lease or licence over Trust land for a period longer than 35 years. This period is to be calculated by including any options to renew or extend the lease or licence. This would mean that options will not be able to extend the term of a lease to a total period of more than 35 years.

 

47.    Once the tenant for a prospective lease or licence of between 25 and 35 years has been identified, a proposal for a long-term lease or licence of between 25 years and 35 years would be prepared. The proposal would include specific key parameters of the proposed lease and would be tabled for consideration by both Houses of Parliament, accompanied by a statement of reasons (as part of the explanatory statement).

 

48.    The Harbour Trust must prepare the written statement of reasons explaining how the proposal is consistent with the Act and plans approved under the Act. This would include an explanation of the expected public benefits from the proposed lease, noting that the objects of the Trust (section 6 of the Act) are focused on public access and amenity, and the protection, conservation and interpretation of heritage values.

 

49.    The Harbour Trust must consult with the public and relevant community advisory committees on the draft statement of reasons. The final statement of reasons presented to the Minister and Parliament must include details of the community’s feedback.

 

50.    This process allows the Parliament to scrutinise a long-term lease or licence proposal early in the approval process. This makes the process more workable, because the Harbour Trust and a prospective tenant will know whether or not a proposal has been allowed by Parliament before commencing detailed negotiation of terms and the community has an early opportunity to provide comment through the statement of reasons consultations.

 

51.    A proposal would be a legislative instrument subject to the disallowance provisions set out in section 42 of the Legislation Act. As a legislative instrument, the proposal would be registered on the Federal Register of Legislation, ensuring a consistent location for public access to all proposals as other communications channels may evolve over time. The explanatory statement, including the statement of reasons, would also be published on the Federal Register of Legislation.

 

52.    At the end of the disallowance period, if the proposal has not been disallowed, the Harbour Trust may continue negotiation of the lease or licence with the prospective tenant. The Harbour Trust must obtain the approval of the Minister before entering into the lease or licence.

 

53.    The Minister must be satisfied that the terms and conditions of the lease or licence are consistent with the objects of the Trust in the Act, plans approved under Part 5 of the Act and the proposal before approving the lease or licence.

 

54.    In assessing consistency with the proposal, the Minister must have regard to the statement of reasons for the proposed lease or licence. The statement of reasons will ensure that the public benefit of the proposed lease, within the context of the objects of the Act and plans approved under the Act, is considered by the Harbour Trust, Parliament and the Minister before a lease or licence may be entered into.

 

55.    To support these revised provisions, the Harbour Trust has committed to revising its leasing policy, setting out how it would administer these provisions. This revision of the leasing policy would be undertaken in consultation with the community and the revised leasing policy would be published on the Harbour Trust’s website when finalised.

 

Details of amendments

Item 4 – Section 3

56.    Item 4 would insert a definition of ‘statement of reasons’, clarifying that the term has the meaning given by new section 64B.

 

Item 8 – Sections 64A, 64B, 64C and 64D

57.    As noted above, item 8 would repeal section 64A and substitute new section 64A. It would also insert new sections 64B, 64C and 64D.

 

58.    New section 64A would provide that the Harbour Trust must not enter into a lease or licence over Trust land for a period longer than 35 years. New subsection 64A(3) would provide that, in working out this period, all options or rights to extend or renew a lease or licence will be assumed to be exercised when working out this period. This means that a lease or licence cannot extend beyond 35 years through the existence of an option to renew or extend: for example, if a lease or licence was agreed to with an initial 25-year term, with two 10-year options to extend. New subsection 64A(3) would view a lease or licence drafted on this basis as totalling 45 years, and thus prohibited under new subsection 64A(1).

 

59.    However, subsection 64A(3) is not intended to prevent an existing tenant on Trust land seeking to negotiate or enter into a new lease or licence over the currently occupied area of Trust land. As an example, if an existing tenant is running a successful operation that complies with the Act and Regulations, and comes to the end of their lease, it is reasonable to allow the tenant and the Harbour Trust to enter into standard negotiations for a new lease or licence. This process would be subject to the requirements of the Act and the Regulations, and the Harbour Trust’s leasing policy.

 

60.    New subsection 64A(2) provides that the Harbour Trust must not enter into a lease or licence for a period longer than 25 years (but not longer than 35 years, as noted above), unless the lease or licence complies with the requirements in new sections 64B, 64C and 64D (which relate to community and Parliamentary oversight).

 

61.    New subsection 64C(1) would provide that the Harbour Trust must not enter into a lease or licence over Trust land for a period of between 25 and 35 years unless a proposal covering that proposed licence or lease has been laid before each House of the Parliament by the Harbour Trust, and the time for disallowance of the proposal has passed, and neither House has disallowed the proposal.

 

62.    New subsection 64C(2) would confirm that a proposal is a legislative instrument for the purpose of subsection 8(1) of the Legislation Act.

63.    Under new subsection 64C(3), a proposal would cover a lease or licence for the purpose of the subsection if:

  • the lessee or licensee, and the land the subject of the lease or land is specified in the proposal; and
  • the period of the lease or licence does not exceed the maximum period specified in the proposal; and
  • the uses of the land permitted by the lease or licence are specified in the proposal.

 

64.    New subsection 64C(4) would provide that a proposal, in addition to the requirements under subsection 15J(2) of the Legislation Act, must be accompanied by the statement of reasons prepared under new section 64B for the lease or licence covered by the proposal. The statement of reasons would be contained within the explanatory statement for the proposal.

 

65.    New subsection 64C(5) would provide that the Harbour Trust must, as soon as practicable after the proposal is registered on the Federal Register of Legislation, publish a notice of this fact on the Harbour Trust’s website. This is to ensure transparency and accountability in this process, so that any relevant stakeholders may be aware that a proposal for lease or licence will be laid before Parliament.

 

66.    New section 64B would provide that the Harbour Trust must prepare a written ‘statement of reasons’ that sets out how a proposed lease or licence over Trust land for a period of between 25 and 35 years is consistent with the objects of the Harbour Trust, set out in section 6 of the Act, and the plans for Trust land sites, prepared and approved under Part 5 of the Act. This will include an explanation of the expected public benefits of the proposed lease, noting that the Act specifies (section 6) that the objects of the Trust are to (among other things):

  • ensure management of Trust lands contributes to enhancing the amenity of the Sydney Harbour region;
  • protect, conserve and interpret the environmental and heritage values of Trust land;
  • maximise public access to Trust land.

 

67.    New subsections 64B(2) would provide that the Harbour Trust must consult with any of the relevant community advisory committees established under Part 8 of the Act whose functions relate to the Trust land that is the subject of the proposed lease or licence, with regard to the statement of reasons. The Harbour Trust would be required to give a draft statement of reasons to the relevant committees and invite comments to be given within 28 days. New subsection 64C(3) would further provide that the Harbour Trust must publish the statement of reasons, accompanied by an outline of the lease or licensing proposal, for public comment, giving 28 days for any comments on the statement of reasons to be made by the public.

68.    For the avoidance of doubt, comments from the relevant community advisory committees and the public would be only be sought on the draft statement of reasons, which contemplates how a proposed lease or licence is consistent with the objects of the Harbour Trust and the plans for Trust land sites. However, the terms of a leasing proposal itself would be considered firmly within the remit of the Harbour Trust, which would separately discharge its duty as an independent body in assessing the terms of a proposed commercial tenancy or licence.   

 

69.    New subsection 64B(4) would provide that the requirement to make the statement of reasons publicly available for comment would include publishing the statement of reasons on the Harbour Trust or the Department’s website.

 

70.    New subsection 64B(5) would provide that, in finalising the statement of reasons, the Harbour Trust must consider any comments provided by the community advisory committee under subsection 64B(2), or the public during the public consultation period under subsection 64B(3), and include an outline of consultation undertaken and comments provided during public consultation. The final statement of reasons would further include any comments provided by the community advisory committee, in full.

 

71.    The Harbour Trust would not be required to make changes to the statement of reasons or directly address or act upon comments provided through consultation, which may be out of scope or of conflicting positions. The Harbour Trust is only required to properly consider comments received through consultation.

 

72.    New subsection 64B(6) would provide that the Harbour Trust must give the statement of reasons to the Minister when seeking approval under section 64D, as outlined below.

 

73.    Subsection 64B(7) would confirm that a statement of reasons is not a legislative instrument for the purpose of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A statement of reasons is not legislative in nature. A statement of reasons would however be included in the explanatory statement to the proposal.  The explanatory statement is published on the Federal Register of Legislation.

 

74.    New subsection 64D(1) would provide that the Harbour Trust must not, except with the Minister’s written approval, enter into a lease or licence over Trust land for a period of between 25 and 35 years. New subsections 64D(2) and (3) would provide that the Minister must not give this approval unless the Minister is satisfied that the lease or licence is consistent with the objects of the Harbour Trust set out in section 6 of the Act, the plans approved under Part 5 of the Act, and the written proposal that covers the lease or licence prepared under new section 64C. In considering whether the terms and conditions of the proposed lease or licence are consistent with these matters, the Minister must have regard to the statement of reasons prepared under section 64B for the proposed lease or licence.

 

 

 

Part 2—Regulations

Background

75.    The Regulations sunset in October 2021 and are anticipated to be remade with minor changes to their operation. The way in which they operate under the Act has been reviewed. The amendments in Part 2 will enable them to be modernised and streamlined. The amendments in Part 2 have minimal substantive effect on the operation of the Act or Regulations, but rather will clarify the way in which the Act supports the Regulations.

 

Details of amendments

Item 10 – After paragraph 73(2)(o)

76.    Item 10 would amend section 73 of the Act to extend the existing regulation-making powers to include a head of power for the following:

·         matters involving imposing liability for offences against the Regulations involving vehicles or vessels on their owners;

·         evidentiary requirements for prosecutions for offences against the Regulations;

·         the documents to be provided to persons alleged to have committed offences against the Regulations; and

·         recovery, by way of penalty, of reasonable costs of the Harbour Trust on behalf of the Commonwealth, incurred as a result of contravention of an order, direction or other requirement.

These amendments would ensure support for matters provided in the Regulations.

 

Item 11– After paragraph 73(2)(r)

77.    The amendments in item 11 would further extend the existing regulation-making powers, to cover the powers of wardens and rangers in relation to the removal, moving of, disposal and retention of objects (including animals) that are on Trust land. These amendments would provide stronger support for the Regulations.

 

Part 3—Compliance and enforcement

Background

78.    Part 3 of this Bill would insert a new ‘Part 9A—Compliance and enforcement’. This Part would establish powers under the Act for the Harbour Trust to give orders to persons engaged in promoting, conducting or carrying out an activity on Trust land, and to issue infringement notices for strict liability offences against the Act or the Regulations.

 

79.    For this latter purpose, the Bill would activate Part 5 of the Regulatory Powers Act which provides a framework for issuing infringement notices.

 

80.    This Part seeks to implement whole-of-government legislative best practice in activating the Regulatory Powers Act, while establishing the Act as a more appropriate head of power for orders and infringement notices by substantively replicating existing provisions in the Regulations.

 

81.    This Part would further insert application and transitional provisions to clarify how the Act or the Regulations apply after commencement of this Bill with respect to giving orders and issuing infringement notices.

 

Imposing strict liability offences

82.    This Bill would insert two strict liability offences in provisions relating to orders and infringement notices. The effectiveness of each of the relevant offence provisions is enhanced by the imposition of strict liability. Consequently, each provision is more effective as a deterrent and as a protection for important public interests. 

 

83.    The need to establish the required mental state for the purposes of a prosecution for these offences, as they presently operate, limits their effectiveness: the relatively low penalties and potentially high volumes of offences make prosecution a relatively inefficient and ineffective method of enforcing these provisions. The imposition of strict liability, combined with the infringement notice scheme, increases the effectiveness of the offence provisions, and the efficiency with which they may be enforced. 

 

84.    In particular, imposing a strict liability offence does not preclude a person from defending themselves against a prosecution under the Act.

 

Details of amendments

Item 12 – Section 3

85.    Item 12 would insert into section 3 of the Act a new definition of ‘Regulatory Powers Act’, which means the Regulatory Powers (Standard Provisions) Act 2014.

 

Item 13 – After Part 9

86.    Item 13 would insert a new ‘Part 9A—Compliance and enforcement’. New Part 9A would comprise new sections 65A to 65H.

 

87.    New section 65A would provide a simplified outline of this Part. New Part 9A would insert two operational provisions from the Regulations into the Act. These provisions relate to activities undertaken by the Harbour Trust:

·         the giving of orders to persons by the Harbour Trust; and

·         the issuing of infringement notices by the Harbour Trust for offences against the Act or the Regulations.

 

88.    Provisions that clarify how the provisions above are applied and interact with those in the Regulation, should the Bill be passed, are also included in the new Part 9A.

 

Orders

89.    New section 65B (Trust may give orders) would provide that the Harbour Trust may give orders to any person engaged in promoting, conducting or carrying out an activity on Trust land, relating to whether and how that activity may be carried out. Section 65B replaces regulation 37 (Trust may give orders) in the Regulations, with the omission of the power for the Harbour Trust to order persons to not promote, conduct or carry out an activity (provided at paragraph 37(1)(a) of the Regulations), as this is no longer required operationally. New subsection 65B(3) would set out the circumstances in which an order may be given. An order may be given where the Harbour Trust reasonably believes that an activity:

·         contravenes the Act or the Regulations; or

·         contravenes a condition of a licence or permit; or

·         is or may be a public hazard or threat to a public health or safety; or

·         is causing or may cause pollution or environmental damage on Trust land or elsewhere.

 

90.    An example of an activity which may cause a threat to public health or safety could be lighting a campfire in high fire danger conditions, risking bushfires. An example of an activity which may cause pollution elsewhere could be playing loud music, which carries as noise pollution to residential areas alongside Trust land. Pollution and environmental damage to Trust land and elsewhere could result, for example, from irresponsible disposal of boat fuels into water on Trust land. 

 

91.    New subsection 65B(5) would set out the orders that can be given in relation to the activities specified in the order to resolve, the contravention, hazard, pollution or damage in respect of which the order has been given. 

 

92.    New subsection 65B(6) would provide that an application for review of an order may be made to the Administrative Appeals Tribunal. This right of review of an order provides a safeguard against arbitrariness of a decision of the Harbour Trust to make an order.

 

The form of orders

93.    New subsection 65C (Form etc. of order) would set out the form that an order given under subsection 65B must be made. It would also provide that an order must specify a reasonable time in which to comply with the order, but may require immediate compliance in circumstances of serious risk to public health or safety or of pollution or environmental damage, or emergency. The provision would replace regulation 38 (Form etc of order) in the Regulations and is substantively unchanged. 

94.    An example of a circumstance in which immediate compliance with an order would be required is a public disturbance on Trust land in which there could be high risk of injury to members of the public.

 

95.    Subsection 65C(4) would confirm that an order given under section 65B is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. An order is not legislative in nature. 

 

Failure to comply with an order

96.    New section 65D (Contravention of order) would provide that a person commits an offence if a person who is subject to an order given under section 65B contravenes that order. This provision would replace regulation 39 (Contravention of an order) in the Regulations. The first element of the offence, that the person is subject to an order given under section 65B, is a strict liability offence, which means that it is not necessary for fault to be proved for this element. This would be appropriate for this element of the offence under section 65D as it is a factual matter and the element will be made out if it is shown that the person is the subject of an order.

 

97.    A person convicted of an offence under section 65D would be punishable by a fine of up to 10 penalty units.

 

Trust action if an order is contravened

98.    New section 65E (Trust may carry out work if order is contravened) would provide that, if a person fails to comply with an order given under section 65B, the Harbour Trust may give effect to the order, including any work required by it.  Under subsection 65E(3) the Harbour Trust may recover its costs of doing so as a debt to the Trust on behalf of the Commonwealth in:

·         the Federal Court of Australia; or

·         the Federal Circuit Court of Australia; or

·         a court of a State or Territory that has jurisdiction in relation to the matter. 

 

99.    New subsection 65E(4) would confirm that the Harbour Trust may destroy or otherwise dispose of any structure, material or other thing. New subsection 65E(5) would confirm that the Harbour Trust may exercise its functions and powers under section 65E irrespective of whether the person to whom the order has been given has been prosecuted under section 65D.

 

Infringement notices

100.New section 65F (Infringement notices) would provide that a strict liability offence under the Act or the Regulations is subject to an infringement notice under Part 5 of the Regulatory Powers Act. The offence under the Act which would be subject to an infringement notice is removal, defacement or interference with an infringement notice placed on a vehicle or vessel by a person who is not permitted to do so (subsection 65G(2)).

 

101.Subsections 65F(2)-(3) would provide that a ranger, as defined by the Regulations, is an infringement officer, and the relevant chief executive is the Executive Director of the Harbour Trust, for the purposes of Part 5 of the Regulatory Powers Act. A ranger is a person appointed to be a ranger under the Regulations.

 

102.Subsections 65F(4), (5) and (6) would provide that the Executive Director of the Harbour Trust may delegate their powers and functions under sections 105 and 106 of the Regulatory Powers Act to a Trust officer, as defined by the Regulations. The Regulations currently define a Trust officer as an employee of the Harbour Trust who is employed at Trust classification level 6 or higher, who is not a ranger.

 

103.A Trust officer employed at classification level 6 or higher, is a senior officer who will have the appropriate level of experience and knowledge of Harbour Trust operations and use of infringement notices on Trust land, to be able to effectively perform these delegated powers and functions. 

 

104.Under section 105 of the Regulatory Powers Act, the Executive Director of the Harbour Trust may extend the period within which a person must pay an amount under an infringement notice. The Executive Director may withdraw an infringement notice given to a person in accordance with section 106 of the Regulatory Powers Act.

 

105.Subsections 65F(7) and (8) would modify matters set out in subsection 104(1) of the Regulatory Powers Act that must be included in an infringement notice. Modifications under these provisions would ensure that the information that must be included in an infringement notice is appropriate to the operation of the Harbour Trust.

 

106.Where an infringement notice is served in relation to a contravention involving a vehicle or vessel by securing the notice onto the vehicle or vessel, in accordance with paragraph 65G(1)(b), subsection 65F(7) provides that paragraph 104(1)(c) of the Regulatory Powers Act does not apply to that notice. The effect of this is that a notice does not need to state the name of the person to whom the notice is given (as generally this will not be known for an unattended vehicle or vessel).

 

107.Subsection 65F(8) provides that the requirement under paragraph 104(1)(d) of the Regulatory Powers Act for an infringement notice to state the name and contact details of the person who gave the notice does not apply to any infringement notice issued under subsection 65F(1). 

 

108.This subsection would protect the privacy and personal security of the infringement officer who gives the notice, the notice being in public view. Instead, the relevant infringement officer’s ranger identification number would be required to be included on an infringement notice, along with confirmation that the ranger is an infringement officer. This information would reliably connect the notice to the infringement officer who issued it, so that requests for review, withdrawal or escalation would be effectively managed and the integrity of the process maintained. Further, under new section 65G, the contact details of the Executive Director of the Harbour Trust would be required to be included on the notice, to enable communication pertaining to the notice, such as a request for extension of the time to pay an amount specified in the notice or withdrawal of a notice.

 

109.New subsection 65F(9) would provide that modifications to subsection 104(1) as it would apply to the Act would be that an infringement notice must include:

a.       specification of the ranger identification number of the infringement officer who issued the infringement notice;

b.      the contact details of the relevant chief executive (the Executive Director);

c.       if a vehicle or vessel was involved in the alleged contravention, inclusion of the registration number of a vehicle or vessel; and

d.      any other information that the Executive Director of the Harbour Trust considers must be included in infringement notices.

 

Terms defined in the Regulations

110.Several terms in new subsections 65A to 65H are defined in the Regulations. These are:

·         ranger identification number;

·         trust officer;

·         vehicle; and

·         vessel.

 

111.These definitions are critical elements of the Harbour Trust’s enforcement scheme. As the Harbour Trust’s workforce, the manner of their deployment, and the vehicles and vessels that the Harbour Trust needs to regulate may change, the definitions may also need to change to reflect this.

 

112.This essential flexibility to adapt to changing circumstances is best achieved by placing the definitions in the Regulations which may be amended more quickly than primary legislation.

 

Infringement notices issued for contraventions involving vehicles or vessels

113.New section 65G would specify how an infringement notice for an alleged contravention of a provision mentioned in subsection 65F(1) involving a vehicle or vessel may be served, including personally on a person, by placing a notice on the vehicle or vessel, or posting it to the address of the relevant person.

 

114.These methods of service are additional to the standard service provisions at section 28A of the Acts Interpretation Act 1901. They are necessary to ensure the Harbour Trust can appropriately serve infringement notices in respect of vehicles or vessels that may be unattended, or when a vehicle or vessel’s owner or operator may not be apparent at the time the notice is issued.

 

115.Subsection 65G(2) would create an offence if a person removes, defaces or interferes with an infringement notice placed on a vehicle or vessel, unless the person is in charge of the vehicle or vessel, is its registered owner or operator, or is authorised to do so. The offence is punishable by a fine of up to 2 penalty units.

 

116.The elements of the offence in section 65G would be subject to strict liability. As noted above, this means that it is not necessary for fault to be proved. This is appropriate for the offence as it is not punishable by imprisonment and is punishable by a fine of under 60 penalty units. This offence would be subject to the infringement notice provisions, which would significantly enhance the effectiveness of the enforcement regimen in deterring the prohibited conduct.

 

117.New section 65H would provide that the Executive Director of the Harbour Trust may sign an evidentiary certificate in relation to an infringement notice, specifying whether an amount payable under the notice was not paid within the time required, whether an extension of time to pay was granted, or whether a notice was withdrawn. Subsection 65H(2) would provide that this certificate is prima facie evidence at a hearing if an offence for which an infringement notice was issued is prosecuted. 

 

118.Under subsection 65H(3) a certificate cannot be admitted in evidence at a hearing unless either the person charged with the offence or their legal representative has been provided with a copy of it at least 14 days before the certificate is sought to be admitted, and has been informed that the certificate will be produced as evidence in the hearing.  This puts the defendant on notice that the certificate will form part of the case against them at the hearing.

 

Item 14 – Application of amendments

119.Sub-item 14(1) would provide application and transitional provisions to assist in clarifying how the Act and the Regulations will interact following commencement of this Act. Sub-item (1) will define ‘Principal Act’ as referring to the Sydney Harbour Federation Trust Act 2001, while ‘Regulations’ refers to the Sydney Harbour Federation Trust Regulations 2001 for the purposes of the provisions of item 14.

120.Sub-item 14(2) would assert beyond doubt that, if the Harbour Trust needs to issue an order to any person engaged in promoting, conducting or carrying out an activity on Trust land after commencement of this item, then it must not give an order under regulation 37 (Trust may give orders) of the Regulations, in relation to a matter covered by section 65B. This is because section 65B, inserted by this Act, substantively replicates regulation 37. This item seeks to avoid any confusion as to which provision under the Act or Regulations applies with regards to issuing orders.

121.Sub-item 14(3) would provide that regulation 24 (Limit on prosecution), which limits prosecutions from being brought against a person for offences under Division 2.1 of the Regulations in respect of activities that are already the subject of an order given under regulation 37, also applies to orders issued under section 65B inserted by this Act. This is to ensure that persons who are already subject to an order issued under section 65B are not also liable for prosecution under an offence provided in Division 2.1 of the Regulations.

122.Sub-item 14(4) would provide that sections 65F, 65G and 65H, as inserted by this Act, will apply in relation to alleged contraventions of provisions mentioned in subsection 65F(1) after commencement of this item, or before the commencement if an infringement notice has not yet been issued in relation to an alleged contravention under Division 3.4 of the Regulations. This means that, after commencement of this item, these new sections inserted by this Act would apply with regards to issuing infringement notices. If an alleged contravention has occurred prior to commencement of this item, but an infringement notice has not yet been issued for it, then these new sections would also apply, if the Harbour Trust wishes to issue an infringement notice for the alleged contravention.

123.Further, sub-item 14(5) would provide that Division 3.4 (Infringement Notices) of the Regulations will still apply after the commencement of this item with respect to infringement notices issued before the commencement of this item. This removes any doubt as to whether infringement notices issued under Division 3.4 of the Regulations prior to commencement of this item would still be valid.

Part 4 – Contingent amendments

Item 15 – Paragraph 65E(3)(b)

124.Item 15 would provide for the amendment of paragraph 65E(3)(b), as a consequence of the passage of the Federal Circuit and Family Court of Australia Act 2021 (FCFCA Act).  This amendment would reflect the change of the name of the Federal Circuit Court of Australia to the Federal Circuit and Family Court of Australia (Division 2), effected by the FCFCA Act. 

 

125.The commencement of the amendment to paragraph 65E(3)(b) would be contingent upon passage and commencement of that Act such that it would commence either:

·         on receiving the Royal Assent, if the FCFCA Act has already commenced; or

·         immediately after the commencement of the FCF Act if that Act commences at a later date. 


 

Attachment A

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SYDNEY HARBOUR FEDERATION TRUST AMENDMENT BILL 2021

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

The Sydney Harbour Federation Trust (the Harbour Trust) was established in 2001 as a transitional body by the Sydney Harbour Federation Trust Act 2001 (the Act). The Harbour Trust was established to remediate and manage prominent former Defence sites in the Sydney Harbour region for the benefit of present and future generations of Australians, with an eventual transfer of suitable land to New South Wales. 

 

The Independent Review of the Sydney Harbour Federation Trust 2020 was published on 18 June 2020. Twenty-one recommendations were made, and the government has agreed with the central recommendation of the review, that the Harbour Trust become an ongoing entity and is working through all other recommendations. The Sydney Harbour Federation Trust Amendment Bill 2021 (the Bill) would, if passed, address four of these recommendations.

 

The Sydney Harbour Federation Trust Regulations 2001 sunset on 1 October 2021. Technical amendments to the Act would enable both the Act and regulations made under the Act to be modernised and aligned with current drafting practice. 

 

Human rights implications

The Bill does not directly limit any relevant human rights or freedoms. Instead, it indirectly engages the right to self-determination, rights to equality and non-discrimination, and the right to enjoy and benefit from culture by recognising that Indigenous people have an important role in management of the traditional lands of the Sydney Harbour, and should have a voice on the Harbour Trust. This is implemented by new subsection 12(3) of the Bill, which requires that one of the members of the Harbour Trust must be an Aboriginal person, or a Torres Strait Islander, within the meaning of the Aboriginal and Torres Strait Islander Act 2005.

 

The Bill further engages the right to the presumption of innocence in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), through the introduction of strict liability offences and the reversal of the burden of proof.

 

Right to self-determination

This amendment engages the right to self-determination in Article 1 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) and Article 1 of the ICCPR. The right is also contained in Article 3 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP does not create legally binding obligations but informs the way governments engage with and protect the rights of Indigenous people.

 

Appointing a standing member of the Indigenous community as a member of the Harbour Trust goes towards realising economic, environmental, social and cultural benefits from traditional lands. The Bill allows Indigenous people to have a voice regarding the development and implementation of policies and programs that impact communities more broadly.

 

Right to enjoy and benefit from culture

The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR.

 

Appointing a standing member of the Indigenous community to the Harbour Trust is one such positive measure to ensure effective participation of the Indigenous community and contribution of an Indigenous perspective to Harbour Trust decisions that may affect their community. The Bill allows Indigenous people affected by decisions of the Harbour Trust to be directly involved in the development and implementation of policies and programs that impact on them. 

 

Right to equality and non-discrimination

This legislation engages the rights to equality and non-discrimination which are contained in Articles 2, 16, 26 and 27 of the ICCPR and Article 2(2) of the ICESCR. These rights recognise that all human beings have the right to be treated equally and to not be discriminated against.

 

The Bill may be characterised as a component of a broader “special measure” as it specifically designates a particular member of a group to occupy a position as a member of the Harbour Trust. ‘Special measures’ are provided for in Article 1(4) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and subsection 8(1) of the Racial Discrimination Act 1975.

 

They are an exception to the general prohibition on racial discrimination and are designed to “secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms” (UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination, 75th sess, UN Doc CERD/C/GC/32 (24 September 2009), para 11). For a measure to be characterised as a “special measure” it must:

·          be for a particular group or individuals;

·          be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

·          be “necessary”; and

·          not continue after its objectives have been achieved. 

The measure in this Bill is appropriate, adapted and proportionate, as it promotes greater engagement with Indigenous peoples with no negative impact on the broader community.

 

The appointment of a standing Indigenous Harbour Trust member is regarded as legitimate differential treatment.

 

Right to the presumption of innocence

Article 14(2) of the ICCPR ensures that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty accordingly to law.

 

Strict liability

Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault. However, the defence of mistake of fact is still available to the defendant and the existence of strict liability does not make any other defence unavailable.

 

Section 65D applies strict liability to an offence relating to the contravention of orders made by the Harbour Trust. This strict liability offence has a maximum penalty of 10 penalty units. The Bill also applies strict liability to the offence of removing, defacing or interfering with an infringement notice under section 65G, which has a maximum penalty of 2 penalty units.

 

Application of strict liability to these offences has been set with consideration given to the guidelines regarding the circumstance in which strict liability is appropriate as set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The penalties for the strict liability offences in the Bill do not include imprisonment, and do not exceed 60 penalty units for an individual. An infringement notice may also be issued for a contravention of a strict liability offence, under section 65G.

 

The use of strict liability offences regarding Harbour Trust orders is necessary to ensure the integrity of the Harbour Trust’s regulatory regime, given the offences have relatively low penalties and can potentially occur in a high volume, meaning prosecution would be an ineffective method of enforcing these provisions.

 

Conclusion

The Bill is compatible with human rights because it does not limit any right. The Bill advances the right to self‑determination, the right to enjoy and benefit from culture and the rights to equality and non-discrimination. 

 

The use of strict liability offences in the Bill are reasonable, necessary and proportionate responses which reflect the nature of the regulatory regime of the Harbour Trust, namely that prosecution would be an ineffective method of enforcing these offence provisions, and that the offence provisions have low penalties and may occur at a high volume.

 

Accordingly, the Bill is consistent with the right to the presumption of innocence in Article 14(2) of the ICCPR.

 

The measures in the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Circulated by the authority of the Minister for the Environment, the Hon Sussan Ley MP