Federal Register of Legislation - Australian Government

Primary content

Other as made
This instrument removes a Commonwealth Heritage value from the listing for the Villawood Immigration Centre in the Commonwealth Heritage List.
Administered by: Climate Change, Energy, the Environment and Water
Registered 07 Apr 2022
Tabling HistoryDate
Tabled HR26-Jul-2022
Tabled Senate26-Jul-2022

EXPLANATORY STATEMENT

 

(Issued under the Authority of the Minister for the Environment)

 

Environment Protection and Biodiversity Conservation Act 1999

 

Environment Protection and Biodiversity Conservation (Villawood Immigration Centre—Removal of Commonwealth Heritage Value) Instrument 2022

 

 

Legislative Background

The Environment Protection and Biodiversity Conservation Act 1999 (Act) provides for the protection and conservation of heritage, including places with Commonwealth Heritage values.

 

Section 341C of the Act requires the Minister to keep a written record of places and their heritage values, called the Commonwealth Heritage List (List). Ordinarily (subject to provisions about the emergency process), the Minister may only include a place in the List if:

 

·         the place is either entirely within a ‘Commonwealth area’, or outside the ‘Australian jurisdiction’ and owned or leased by the Commonwealth or a Commonwealth Authority; and

·         the Minister is satisfied the place has one or more Commonwealth Heritage values.

 

Under subsection 341D(1) of the Act, a place has a Commonwealth Heritage value only if it meets one of the Commonwealth Heritage criteria prescribed by the Regulations. The Commonwealth Heritage value of the place is the place’s heritage value that causes the place to meet the criterion.

 

The List is not a legislative instrument (subsection 341C(4) of the Act). Pursuant to paragraph 341P(b) of the Act, a copy of the List can be found on the Department’s website.

 

The Act imposes a range of obligations on the Commonwealth and on Commonwealth agencies in relation to Commonwealth Heritage places. Broadly stated, principal obligations are that:

 

·         Subject to some exceptions (section 341U of the Act), Commonwealth agencies must make plans to protect and manage the Commonwealth Heritage values of Commonwealth Heritage places (section 341S of the Act).

·         If such a plan is in force, the Commonwealth and Commonwealth agencies must not contravene, or authorise a contravention of, the plan (subsection 341V(1) of the Act).

·         If no such plan is in force, the Commonwealth and Commonwealth agencies must not act inconsistently with the Commonwealth Heritage management principles in relation to the place (subsection 341V(2) of the Act). These principles are prescribed in the Environment Protection and Biodiversity Conservation Regulations 2000 (Regulations).

·         A Commonwealth agency must not take an action that has an adverse impact on the Commonwealth Heritage values of a Commonwealth Heritage place, unless there is no feasible and prudent alternative to taking the action, and all reasonable mitigation measures are taken.

 

Paragraph 341L(3)(a) of the Act provides that the Minister may remove one or more Commonwealth Heritage values included in the List for a Commonwealth Heritage place, if satisfied that the place no longer has the value or values. Before doing so, the Minister must consider advice of the Australian Heritage Council and public comments (section 341M of the Act).

 

Under subsection 341L(4) of the Act, the Minister may remove a Commonwealth Heritage value of a place only by an instrument including a statement of reasons for the removal.

 

Under subsection 341L(6) of the Act, if the instrument deals only with removal for loss of value:

 

·         it is a legislative instrument; and

·         it takes effect on the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.

 

The Villawood Immigration Centre

The Villawood Immigration Centre, Miowera Rd, Villawood, NSW, Australia, is significant as one of the largest and longest‑running, purpose built migrant hostels established in Australia in the post‑war period. The hostel demonstrates the extent, nature and composition of Australia's post-war migration program, which has made a profound impact on Australian society. The hostel site illustrates the evolution of Australian migration programs, policy, services and accommodation from 1949 to the present time. Prior to recent redevelopment, it had significant heritage value because of its importance in demonstrating the principal characteristics of a post‑war migrant hostel.

 

The Villawood Immigration Centre was added to the List on 22 June 2004. One of its Commonwealth Heritage values, and the corresponding Commonwealth Heritage criterion, is:

 

Value

Criterion

Criterion D Characteristic values

The hostel demonstrates principal characteristics of migrant hostels throughout Australia, with the use of ex-military buildings, construction and adaptation of the buildings for civilian use, the arrangement of accommodation into units and the siting of the hostel close to industry.

Attributes

Adapted and reused buildings, the arrangement of buildings and site layout.

(d)  the place has significant heritage value because of the place’s importance in demonstrating the principal characteristics of:

(i)   a class of Australia’s natural or cultural places; or

(ii)   a class of Australia’s natural or cultural environments;

 

Purpose and operation of Instrument

The Centre has been redeveloped in recent years. The redevelopment has involved demolishing a number of buildings, with others relocated to a heritage precinct. The

site is considered to now have only limited capacity to demonstrate the principal characteristics of a post‑war migrant hostel. However, the recent redevelopments have not affected the other heritage values of the place.

 

Because of this, the Minister was of the view that the place no longer satisfies criterion (d) above, and so was satisfied that the place no longer has the criterion D characteristic values outlined above. The Minister therefore decided to remove this Commonwealth Heritage value from the List.

 

The purpose of the Instrument is to remove this Commonwealth Heritage value for the Villawood Immigration Centre from the List.

 

The Act requires a legislative instrument to effect this removal. As a result, the obligations of the Commonwealth and Commonwealth agencies in relation to this Commonwealth Heritage value for the Villawood Immigration Centre will no longer apply.

 

Consultation and Compliance with legislative obligations

Section 341M of the Act provides that before the Minister removes one or more of a place’s Commonwealth Heritage values from the List, the Minister must:

 

·         obtain and consider advice from the Australian Heritage Council; and

·         publish on the internet and in a daily newspaper circulating in each State and self‑governing Territory, a notice describing the proposed removal and inviting anyone to give the Minister comments.

 

A notice of the proposed decision was published in The Australian newspaper on 31 July 2021, and on the internet on 31 July 2021. No responses were received to the notices.

 

The Australian Heritage Council’s advice was sought on 26 November 2020 and the Minister asked for the advice to be provided on or before the end of 2021. The Council’s advice:

 

·         referred to claims that the place had significant heritage value because of the place’s importance in demonstrating the principal characteristics of a post war migrant hostel; and

·         advised the Minister that, in consideration of the place’s recent transformation and conversion into a different land use, the site is considered to have only limited capacity to demonstrate the principal characteristics of a post‑war migrant hostel, and as a result, might not have significant heritage value under the above criterion.

 

The Minister considered the advice of the Australian Heritage Council, which was provided on 15 March 2022. Pursuant to subsection 341M(5) of the Act, the Minister decided to remove the abovementioned Commonwealth Heritage value of the place. In accordance with subsection 341M(5), the decision and the legislative instrument were made within 60 business days after the specified period for giving the advice to the Minister ending.

 

A statement of reasons for the removal of the value has been included in Schedule 1 to the Instrument, pursuant to subsection 341L(4) of the Act.

 

The Instrument is a legislative instrument for the purposes of the Legislation Act 2003. See paragraph 341L(6)(a) of the Act.

 

The effect of paragraph 341L(6)(b) of the Act is that the Instrument commences on the first day it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003.

 

 

Authority: subsection 341L(4) of the Act.

 

 

A Statement of Compatibility with Human Rights is set out at Attachment A.

 

A clause-by-clause description of the Instrument is set out at Attachment B.


Attachment A – Statement of Compatibility with Human Rights

 

Statement of Compatibility with Human Rights

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

 

Environment Protection and Biodiversity Conservation (Villawood Immigration Centre—Removal of Commonwealth Heritage Value) Instrument 2022

 

This Legislative Instrument 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 Legislative Instrument

The Villawood Immigration Centre is a Commonwealth Heritage place. The purpose of the Environment Protection and Biodiversity Conservation (Villawood Immigration Centre—Removal of Commonwealth Heritage Value) Instrument 2022 (Instrument) is to remove the following Commonwealth Heritage value from the listing for the Villawood Immigration Centre in the Commonwealth Heritage List:

Criterion D—Characteristic values

The hostel demonstrates principal characteristics of migrant hostels throughout Australia, with the use of ex-military buildings, construction and adaptation of the buildings for civilian use, the arrangement of accommodation into units and the siting of the hostel close to industry.

Attributes

Adapted and reused buildings, the arrangement of buildings and site layout.

 

The Minister was satisfied that the Commonwealth Heritage place no longer had this Commonwealth Heritage value.

As a result, obligations under the Environment Protection and Biodiversity Conservation Act 1999 that apply in relation the Villawood Immigration Centre will no longer apply in relation to this value. This will not affect how such obligations apply in relation to other Commonwealth Heritage values of the Villawood Immigration Centre.

 

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Hon Sussan Ley MP

Minister for the Environment


Attachment B – clause‑by‑clause description of Instrument

 

Clause‑by‑clause description of Instrument

Section 1 – Name

Section 1 provides that the name of the Instrument is the Environment Protection and Biodiversity Conservation (Villawood Immigration Centre—Removal of Commonwealth Heritage Value) Instrument 2022.

 

Section 2 - Commencement

Section 2 deals with the commencement of the Instrument. It indicates that, in accordance with paragraph 341L(6)(b) of the Act, the Instrument takes effect on the first day after it is no longer liable to be disallowed, or to be taken as having been disallowed, by either House of the Parliament under the Legislation Act 2003.

 

Section 3 – Authority

Section 3 deals with the authority for making the Instrument. The Instrument is made under subsection 341L(4) of the Act.

 

Section 4 – Definitions

Section 4 deals with definitions that are used in the Instrument (including in Schedule 1 to the Instrument). It also includes a note referring to terms that are used in the Instrument but that are defined in the Act. Such defintions apply to the Instrument by operation of paragraph 13(1)(b) of the Legislation Act 2003.

 

Section 5 – Removal of Commonwealth Heritage value

Subsection 5(1) removes the following Commonwealth Heritage value of the Villawood Detention Centre from the List:

 

Criterion D—Characteristic values

The hostel demonstrates principal characteristics of migrant hostels throughout Australia, with the use of ex-military buildings, construction and adaptation of the buildings for civilian use, the arrangement of accommodation into units and the siting of the hostel close to industry.

Attributes

Adapted and reused buildings, the arrangement of buildings and site layout.

 

Subsection 5(2) provides that a statement of reasons for the removal, which is required by subsection 341L(4) of the Act, is set out in Schedule 1 to the Instrument.

 

Schedule 1 – Statement of reasons for the removal of a value from the Commonwealth Heritage List

Schedule 1 to the Instrument is a statement of reasons for the removal of this Commonwealth Heritage value of the Villawood Detention Centre from the List.

 

Clause 1 of Schedule 1 – Purpose of Schedule

Clause 1 of Schedule 1 sets out the purpose of Schedule 1.

 

Clause 2 of Schedule 1 – Legislation

Clause 2 of Schedule 1 outlines the legislation that underpins the statement of reasons.

 

Clause 3 of Schedule 1 – Evidence and material before me

Clause 3 of Schedule 1 outlines the evidence and material before the Minister in reaching the decision.

 

Clause 4 of Schedule 1 – Findings on material questions of fact

Clause 4 of Schedule 1 outlines the Minister’s findings on material questions of fact, which underpin the Minister’s decision.

 

Clause 5 of Schedule 1 – Reasons for decision

Clause 5 of Schedule 1 outlines the Minister’s reasons for the decision to remove this Commonwealth Heritage value for the Villawood Immigration Centre from the List.