New Times Survey
The Heritage (Act) Hoax
by C.E. Pinwill
First Edition March 1980
Published by the Institute of Economic Demcocracy
Australian Heritage Commission Act 1975
Control of Private Property by Progressive Legislation
The one thing that no system can withstand is
personal initiative. That initiative must by definition
be out of the individual and of his creation.
HERITAGE UNDER ATTACK
In Karl Marx's Manifesto of the Communist Party he listed ten points which will, he said ". . . in the course of the movement, outstrip themselves, necessitate further inroads upon the old social order, and are unavoidable as a means of entirely revolutionising the mode of production."
In this document of 1848 Marx went on "These measures will of course be different in different countries."
"Nevertheless in the most advanced countries", he said they "will be pretty generally applicable".
Although all ten points are important,, some indeed
already accomplished in Western societies, the first
and third bear directly on the matter in hand and
Faced with a brief to accomplish this, the communist placed his faith in the coming of some cataclysmic social upheaval, a revolution, which would provide the opportunity and necessary setting to enable him to impose his "New Order".
However, his faith in the coming of the revolution was not such that he believed it would come without some assistance. Communist agitation, he was taught, was to be the dynamic catalyst that brought the revolution about.
Several years down the road, while results were encouraging amongst some Nation-races, it was clear that things weren't working out in the West. Sacrifical effort over decades in the West, placing a tremendous strain as it did, on morale, convinced all but the most consistently fanatical that a re-think was in order.
The more orthodox international socialists, the
communists, as a result came eventually under Lenin
to reversing Marx's doctrine of communism developing
in the "most advanced countries" and then spreading
to the lesser advanced areas of the world.
But this was not the only result of international socialism's patent failure in the West in the mid 1800's. The branch of International Socialism which expanded into the rural global areas changed its name to Bolshevism and after the revolution in Russia, to Communism. The branch of international socialism which centred its approach in the West regrouped around a radical change in method, and thus in 1884 the Fabian Socialist Society was born.
By far the most successful international socialist movement within the West, the Fabians took their name from the Roman dictator, Fabius Cunctater who is best known for his defeat of the stronger forces of Hannibal by avoiding an open full-scale pitched battle, which could not offer victory, and for wearing Hannibal's forces out through a process of gradualism.
The Fabian Society liked Fabius Cunctator's method of victory through creeping gradualness, they felt they had to, because a pitched battle which a revolution must bring was for the foreseeable future unwinnable. So International Socialism adopted both the method and the name of Fabius Cunctator.
Prominent among the leadership of the Society were H.G. Wells, George Bernard Shaw, who played a dominant role in the Society for nearly half a century, and Beatrice and Sydney Webb, who wrote the first programme for the British Labor Party (the first Labor Party in the World).
Circumspect in their approach, the Fabians have
never sought publicity for the Society itself. As a
result few Australians, even if they've heard of it,
understood its significance.
They permeated all political parties but especially the infant Labor Party. They proselytized among all important groups within society but especially amongst the intellectuals and the rich. They founded and/or controlled a number of institutions through which their influence was exerted. Not the least among these was the London School of Economics.
The first principal appointed to the school, Professor Harold Laski, a famous Fabian Socialist, wrote An Appreciation of the Communist Manifesto for the Labor Party in which he stated "who, remembering the demands of the Manifesto, can doubt our common inspiration."
Among the other notable things that Professor Laski had to say was that Dr. H.C. Coombs, well known for his left-wing politics at Perth University in student days, who then went to the London School of Economics, returned to Australia to work under Dr. H.V. Evatt in planning "Regional Government", was appointed by the then Mr. Robert Menzies as Governor of the Reserve Bank and as such was the most powerful man in determining financial policy in this country, and who is presently President of the Australian Conservation Foundation, "was one of his most brilliant students".
We might also do well to recall that one of the most committed of the Fabian Australian leaders, Dr. Jim Cairns, whilst a member of the Whitlam Cabinet made a concerted and determined effort to have the Department of Environment brought into his portfolio. The leading Fabians in the Labor Party who governed Government in Australia in the years 1972-75 sought to depose the National Anthem, "God Save the Queen", with a national song, and the Australian Flag with any piece of bunting acceptable enough to the Australian people to enable its replacement, were the very same people who used of their limited time in power to legislate the Heritage Commission Act. Why?
The answer that shall be frankly put before you in succeeding chapters is that the issue of "heritage" was seen to be sufficiently strong to carry forward, if it were done adroitly, the battle for Marx's "unavoidables", the abolition of property in land and the right of inheritance. Not to carry the battle of course, to its ultimate conclusion, for that would have brought forward an uncontrollable reaction. Just to achieve within the issue, that which was achievable. For the key to an understanding of the stratagem, is "gradualness", hopefully for the Fabians an "imperceptible gradualness".
ON THE NATURE OF HERITAGE
The former Governor-General, Sir Paul Hasluck,
brought a valuable perspective to the question of
heritage in his Australia Day address.
There is a complex of reasons for this. Some relics are preserved for their beauty; some for their historical associations; and some as museum pieces to help in the study of the past. Perhaps some are preserved simply because they are old and quaint and are thought to be picturesque. I personally have strong sympathy with all these efforts, but I want to ask one further question. Was there nothing else in the past worth preserving other than old buildings, old clothes and old artifacts?
Is there nothing else we should protect?
Sir Paul answered his question, "I would suggest that part of our heritage from the past is the heritage of ideals, loyalties and codes of conduct. Values as well as material objects, are also worth preserving."
"Part of our heritage is patriotism."
"Another part of our heritage is courage."
Let us try to explore this part of our heritage and make efforts to preserve it, no less than we are becoming keen on protecting the old buildings or making collections of antiques."
Sir Paul, perhaps more than even he considered at the time, had touched the essence of the matter in need of penetration.
The greater part of heritage has come down to us from past human experiences, which have been treasured up and refined into a knowledge of natural law, a guide for every situation and action, which will enable a given desirable result to be attained. There can be little doubt that the primary objective in human society, in our relationships with each other, is the achievement of "security with freedom."
In this objective there is no doubt that the whole Western experience has been that what is loosely termed "private enterprise" based as it is on private property rights, has given a result in human security that the rest of the world has spent the greater part of the last century trying to emulate. Often to the extent of adopting the product of our initiative, especially in technological know-how, to the point of placing considerable strain on the fabric of their own cultures.
The West has developed a productive capacity to the extent that in almost every area of production, the answer to its disposal has had to be fought out in the international arena of exporting. This has reached such proportions that exports from the West have accounted for, in the opinion of Dr. Anthony Sutton, the U.S.A's foremost authority on East-West trade, 90 to 95% of Soviet technology. And China has announced its intention of importing from the West in the years to 1984 to the extent of $600,000 million. A figure that would take the total income of every Australian living a full 12 years to produce.
The private property and private enterprise countries have not only attained the highest standards of living in the world but have supplied all the key inputs into the advancement in the Third World and Communist countries as well.
Whatever therefore may or may not be said in regard to private property, the stored-up experience of the West is, justifiably , that it works, it is part of our heritage.
Further, whatever the difficulties in attaining a higher level of responsible freedoms in the West, the level that has been attained again surpasses the experience in other cultures. Private property does under-write a considerable level of economic freedom, and this is the basic freedom without which there can be no other.
Sir Paul Hasluck was right. Beyond the material heritage of relics there is a whole world of cultural experience or heritage, which abides for the moment in the generation living. It consists, bluntly, of know-how, not simply in the narrow confined areas of technology and industry, but in the whole Western human experience of how men may best associate together, a knowledge of the laws of human associa- tion, that enable us to attain the results that we want.
This experience has taught us that the continuity of heritage demands, if it is to live in individuals, inheritance. That if individuals are to feel secure in their culture, value their heritage, and cherish, extend and protect it, the security of private property is a necessary condition thereof, The substance, if not the sum of our history-experience is therefore, diametrically opposed to the theoretical commitments of international socialism and the reigning-in of the personal initiatives that property and inheritance allow.
THE AUSTRALIAN HERITAGE COMMISION ACT OF 1975 PRELIMINARY
The Act established the Australian Heritage Commission. Mr. Tom Uren, then Minister for Urban and Regional Development, announced the appoint- ment of Mr. 0. Yencken as Chairman of the Commission, whom he said "had a distinguished record of involvement in conservation and environ- mental protection in Australia."
The six Commissioners initially appointed were Mr. R. Walker, General Secretary of the Australian Council of National Trusts; Mr. Ernest Sinclair, a journalist and formerly Chairman of Australian Associated Press; Professor John Mulvaney, Professor of Prehistory; Miss Margaret Feilman, town planner; Professor G.N. Blainey, Professor of Economic History and Mr. Vincent Serventy, Editor of Wildlife in Australia.
Under the Act a Register of the National Estate is provided for. The purpose of the Register is to list "places" which in the words of the Act "have aesthetic, historic, scientific or social significance". This is anything but a severe limitation on the places that may be declared part of the National Estate. As Mr. Bruxner, a National Party State Parliamentarian in northern N.S.W. has pointed out, places of aesthetic, historic or social significance may include all or any part of the continent of Australia with the exclusion of nothing.
Any person may nominate anyone else's property to become part of the National Estate. At this point it may be entered in the Interim List. A place entered on this list, is, for the purposes of the law, to be considered and treated as though it were already part of the National Estate.
The Act does not require that the owner of this property be notified that it has been nominated for the National Estate, nor when it is formally listed as National Estate is any notification to the owner required. There is not as yet one recorded instance of the Heritage Commission extending this common courtesy to any affected property owner.
The suggestion by Sir Paul Hasluck that "codes of conduct" come within the ambit of heritage has not apparently occurred to our Heritage Commission.
There is a requirement within the Act that notice of the intention of the Commission to enter a place into the National Estate, must be advertised in the Government Gazette (Canberra), in a newspaper circulating throughout the State, and in a local newspaper.
The requirement for advertising in a local newspaper is often ignored and there are even many cases where no newspaper published within 1,000 miles carries such an advertisement. For instance, places in the Cooktown Shire in far north of Queensland were not advertised in any newspaper north of Brisbane, 1,300 miles away, until after the period in which one could object had expired.
If one happens to hear in some obscure way that one's property is nominated for the National Estate, perhaps a friend far away happens to idly ferret among the back pages of the newspaper that day, and also happens to recognise that place described in a profusion of map references as yours, the Act provides for objections.
A person may "make written objection" and the date before which objections must be lodged shall be 6 set "not being earlier than 3 months after the date of publication of the notice in the Gazette". The chances of anyone outside of the bureaucracy reading the Government Gazette are something like London to a brick.
Having, by chance, had the opportunity to make your written objection, the procedure by which it is to be processed leaves little room for optimism. The only provision in the Act, is that the Commission cannot formally enter your property into the official Register (it can remain on the Interim List forever, in which case the Act is fully applicable to your property for that period) until "the Commission has given due consideration to that objection".
You may indeed object to the intentions of the Commission, but only to the Commission itself. The only opportunity for complaint is to the offend- ing party and his discretion once he has "duly considered" the matter, is decisive and final.
This is pure farce and comic opera, No, it is far worse, it is a travesty against all traditional standards of justice. Appeal to an independent authority is impossible. Any concept of innocence until guilt is proven doesn't even come into the matter. The Commission must "consider", but may in law, consider and be damned.
In the event of the Commission deciding that it isn't going to proceed with entering your property into the National Estate after consideration of an objection, a rather academic consideration you may be assured, that is not the end of the matter. Interested persons must by law be notified, including presumably the person that nominated your property for the National Estate in the first place and if he or any other person objects to your property not going into the National Estate within 3 weeks, as seems more than likely, the whole matter is back in the melting pot once again, with the Commission once again "considering".
As one who has had occasion to make an objection the fact that one is limited to objecting to, as it were, a kangaroo court, is only part of the problem. What grounds there are upon which one may object, within the Act is a real dilemma.
About the only grounds that are valid, is that of proving that the place intended for listing, has no "aesthetic, historic or scientific or social significance."
The lyrical "statements of significance" which are produced by the Commission upon enquiry, make it quite clear that the pretexts under which National Estates may be declared are both innumerable and limited only by the outer dimensions of imagination.
Excerpts from a document of 20 such "statements of significance" supplied by Mr. Max Bourke, the Director of the Heritage Commission, will indicate the grounds upon which your property rights may be inhibited.
You may find yourself arguing against "The social importance of a wilderness", "The aesthetic import- ance of the views", "The diversity of species", "The position of the area in an ecological/geographical unit", "The need to protect the catch ments of numerous creeks", "vegetation here ... is adapted to Ordovician soils", "its location, topographic, botanical, historic and archaeological values", "potential to service inland tourist requirements", "High scenic value", "interfact between plant communities", and the one I've saved for the last which is quite beyond belief, "a unique species of giant subterranean cockroach".
These gems from just four "statements of significance" are enough to tangle the feet of the best bush lawyer in the country.
Connections with past aboriginal activities is often invoked. The "place" listed as "Mirmala and Gulungabu" we are told has "occupational debris", "trees of personal significance" and "a mythologically important sprint" and "petroglyhps of mythological significance".
Under Section 23(5) of the Act:-
"The Commission shall not take any action under
this section in relation to a place for reasons relating
only to the association of the place with the history,
culture or beliefs of aboriginals unless -
This is one of the few limitations on the entry of a place into the National Estate, and while it can be circumvented by the Minister after an "environmental report", all affected owners should obtain the "state- ment of significance" relating to their land and object if grounds relating to aboriginals are used.
Several affected persons in Queensland and else- where have been making copies of their objections available to each other, some prepared with legal advice, some without. They all seem to me to demonstrate considerable difficulty in coming to grips with the question of what might move the Heritage Commission not to proceed.
It is certain that the Commission which is proceed- ing for the inclusion of huge areas (in Queensland alone it's 9,000,000 acres) does not and cannot with its staff of under 20, have the faintest idea of what their proposals contain. None of these objections, some made by the most powerful, influential and well organised enterprises in Australia, some by rank amateurs, has as yet succeeded to the extent of bringing the Commission to reverse its intentions.
The most valuable submission seems to me to be
one which spells out an intent of creating as many
public enemies for the Commission as possible,
necessitating letters, explanations, inspections, travel,
appearance at public meetings, reports and other
work loads upon the Commission's staff which will:-
THE POWERS OF THE HERITAGE COMMISSION
The Australian Heritage Commission has no power to compulsorily acquire property. The concern that is felt at its powers is confined to the limitations that may be placed on private property listed in the Register.
The Commonwealth Government does, however,
without question, have powers of acquisition under
the Australian Constitution under Section (xxxi)
This power depends on two qualifications. That the Commonwealth "has power to make laws" in respect to ecology, conservation, preservation or heritage is not expressly given in the Constitution, and so while it may be able to do so under what are called "incidental powers", the question is hedged about with legal considerations not yet fully explored by the High Court.
The other qualification is that acquisition must be on "just terms" which has been well defined by past court judgments. The magnitude of areas involved would require thousands of millions of dollars. While Government may compulsorily tax our dollars from us in order to compulsorily acquire our property with our own money, the magnitude of the value of land and improvements, and therefore of finance involved, is a large mouthful indeed, presenting the greatest political difficulties in the chewing thereof.
The socialist objective in this country has therefore been to hedge property around with such limitations, restrictions and controls that by a process of "gradual- ism", policy and initiatives in its use accrue to Government.
This, it is asserted, has been the motivating goal behind the Heritage Commission Act.
A very full exposition of the powers of this Act was presented to the Queensland Chamber of Mines on 13th March, 1979 by an officer of the Queensland Co-ordinator General's Department, Miss Robin Hesse.
Below, in her address which is quoted at length (though not in full) I have included many of her preliminary remarks which give valuable background to the Act, as well as her summary of the Act's powers in important areas.
"As a preliminary to comments on the Australian
Heritage Commission Act 1975-76 itself it seems to
me appropriate to mention that this piece of legisla-
tion seems to have caused more concern to industry
and to landholders in this State than any other
Commonwealth Statute - at least in my memory.
All might be heartened by the announcement on 7th February 1979 by the Minister for Home Affairs the Hon. J. Ellicott, that he, as the Minister now respon- sible for the Act, is to conduct a review at the direction of the Prime Minister into its provisions. This will look at "whether the Act, in its application, had any unintended or undesirable implications for other Government policies, including resource development, aboriginal advancement and federalism".
This review is a direct result of criticism by the Mining Industry Council and the Queensland Government.
When making his announcement in the House of Representatives, the Prime Minister gave an assurance that the principles underlying the Act which, he said, are designed to ensure proper consideration of Australia's national heritage, would be maintained. It seems to me that it is these principles with which the various industry groups are concerned, and it may be difficult to satisfy the demands of both industry and Federal politicians.
No doubt we shall see!
At this point it might be uiseful to outline the events which led up to the proclamation of the Act, and rhus to summarize the underlying philosophy.
In his policy speech in 1972 the then Prime Minister, Mr. Gough Whitlam, said that one over- riding objective of a Labor Government would be to preserve and enhance the quality of the National Estate'. He made particular mention of 'land for national parks' land on which historic buildings specially worthy of preservation are sited, land along the coastline ... (and) land in other areas needing special protection'.
Acting in accordance with the policy, the Govern- ment in May 1973, set up a Committee of Inquiry under Judge R. Hope.
The concept of the 'National Estate' was - and remains - rather loosely defined. The Committee in its advertisements inviting submissions listed the following in what it considered to be included - a. National Parks, nature reserves and other places for the protection of wildlife, both plants and animals;
a. National parks, nature reserves and othre places for the protection of wildlife, both plants and animals;
In addition to the Chairman, the Committee consisted of seven members including Mr. D. Yencken and Mr. R. Walker who are now respectively Chairman and a member of the Australian Heritage Commission.
The Committee sought and heard over 650 submissions from Government, community and professional bodies as well as individuals. It completed its report in April 1974 and the Prime Minister announced its findings and recommendations at the end of that month. The full report was subsequently tabled in September 1974 in the House of Representatives.
Among its recommendations, the Committee
suggested a -
In 1975 legislation for both of these was introduced. The Act at the time had the support of both sides of the Parliament.
Going back just a little, while the Committee of Inquiry was in session, the Labor Government initiated a programme of financial assistance aimed at preserving the national estate. In 1973-74 a total of $2 m was provided to the States: In 1974-75 this increased to $8 m. The programme has been maintained and, on average, has provided approximately $5 m. annually to each of the States. This has been split almost equally between the State Government, the relevant National Trust and Local Authorities and other public groups. In Queensland, commitments and carry-overs have tended to reduce the funds available for new projects in any one year to approximately $3 m.
Turning now to the Act itself:
Section 9. All Commonwealth Departments and agencies are required to assist the Commission.
Section 25 is quite important. It provides that where no Environment Report, carried out under S.11 of the Environment Protection (Impact of Proposals) Act, includes a recommendation that a place should be or should continue to be included on the National Estate register or, alternatively, should not be included or should not continue to be recorded on the register then the Minister may direct the Commission accordingly and the Council may not act subsequently to remove etc. that place without the Minister's consent. This section has precedent in Queensland as it was the procedure followed in relation to Fraser Island: as a consequence of the Environmental Inquiry, the island was listed on the register.
PART V - Protection of the National Estate
Other areas might be taxation provisions, freight rate incentives etc.
Thus, while the Act gives the Commission no right to intervene in matters within a State, where commonwealth approval is also necessary, the Act might be used to frustrate proposals concerning places on the register and it should be remembered, places on the Interim List also.
In conclusion, it seems to me that the objectives 9 of the Act are supported by all political parties and, as presented, the provisions of the Act are relatively innocuous. However, it could be used to frustrate proposals e.g. there is no limit to the time in which a decision must be made by the Australian Heritage Commission once a place is included on the Interim List: it may remain there ad infinitum and be considered as if included on the register.
Secondly the powers available under S.30 i.e. tying all Commonwealth parties to the requirement to 'take no action which would adversely affect a place on the register' are very wide. This, I think, will be the section under closest scrutiny in the present review.
Thirdly, there is no appeal provision against decisions of the Commission. It might be argued that the effect of listing reduces or otherwise inconveniences a property owner. Under the Act he has no recourse for action against the Commission." End of quote.
There are several other aspects of the Act which close scrutiny disclose which should be added.
The dangerous powers under Section 30, also apply under Section 31 to the Interim List of "places that might be entered in the Register". This has been stated previously. So too has the observation that a place might be kept on this Interim List forever. It must also be observed that there is no requirement for the Commission to take any initiative whatsoeverto consult with anyone , give notice to anyone, or make any public announcement or advertisement as to the contents of the Interim List.
Incidently, the term "interim list" is used by the author and other students of the Act for ease of identification of the "List" establishedd under Section 26. This Section refers to it only as "a lst" so there is absolutely nothing stated or implied of an "interim" nature to it.
An effectively secret list, of places subject to the totality of Commonwealht power to the extent that their use might, in the opinion of the Heritage Commission "adversely affect them", is now a legislative monument to the advance of socialism in this country. And no appeal is possible.
There is provision under S.26(2) that where the Commissionmoves to have aplace mov3d from the "list" to the register "the Commission shall enter on the list a description of the place sufficient to identify it." It is therefore "possible" to list a place, have the full force of the Act apply, and to do this before any inspection of the list will reveal any "description of the place sufficient to identify it". Surely this is a madness possible only to Federal Legislators. It's said that if a law exists it will one day be applied - still it does help to lighten the day. Another observation is that while it is a relatively simple matter to have a place included in the Register, it is extremely difficult to reverse the process. Removal of a place from the Register, other than by the Commission itself, can only be directed by the Minister, and then only after he has awaited an "environmental report" from the commission who have "conducted an enquiry under section 11 of the Environment Protection Act."
Nowhere in the Act is there any recognition of the loss that could be suffered by an owner of a place listed in the Register, thus if the Commonwealth has decisive power to prevent its usage it could have the same effect as compulsory acquisition, yet with no provision for compensation. The question of economic disadvantage to an owner is not even taken into consideration (or need not be) when placing an area on the Register.
The question of the extent to which Section 30 will be invoked must be committed to the unknowable future. Given several years of attention from glossy magazines and colour T.V., an urban population locked away from the realities of our physical heritage in rural areas may well develop an idealised concept of the National Estate. Given a Government that wanted to exercise its powers under the Act (and which of them don't gravitate towards more powers) and even a small vocal group which could give the illusion that this was in response to public pressure, severe limitations on the free use of private property would be inevitable.
"SOUTH AUSTRALIAN HERITAGE ACT, 1975"
The one counter that every opponent of the Federal Heritage Act has levelled is "the limitation of Commonwealth powers to affect land and the several land usages". These arguments have a certain validity, and thank goodness that our Federal system makes this possible.
However, as a lullaby, the tune just won't play. Consider the awful consequences in the event of a State contributing its powers also to the ends of the Commonwealth Act.
This is no idle consideration. It is now a reality that must be confronted. The back stage socialist wire pullers had by no means considered that the emotional pull of "heritage" had been fully exploited in their assault on private property, with the Austra- lian Heritage Act firmly in place.
The "soft sell" which had little difficulty in soliciting the compliance and support of the then Liberal-National "opposition", it was felt, could likewise be extended to the States' unthinking conservative politicians. In the Labor States there was no impediment.
I have before me a document named "A Guide to the South Australian Heritage Act", published by the South Australian Department for the Environment in draft form which has "fallen" into my hands.
Reproduced in part below, it allows at least two important observations. One, it is directly modelled on the Commonwealth Act, and secondly, it brings vicious penalties to the free use of property that State powers allow.
Directly quoting from "A Guide to the South
Australian Heritage Act": -
1.4. The Registers
1.5. State Heritage Areas
1.8. Development Applications
Heritage controls are vested in the State Planning Authority but there is provision for these controls to be delegated to local councils by the State Planning Authority. In this case 11 the local Council becomes the development control authority for the purpose of heritage controls.
Owners of buildings or structures that are listed or registered will be required to apply for consent to demolish that building or structure or to carry out any work that will change the character or external appearance of the item. The Application will have to be made to the relevant development control body, either the local council in whose municipality the item is located or the State Planning Authority. Before making a decision the development control body will be required to refer the application to the Minister for the Environment to obtain expert advice. The Minister will then consider the application and seek the advice of the Heritage Committee before making a recommen- dation to the development control body. The final decision regarding the application will be made by the relevant development control body, taking into account the Minister's recom- mendation and the provisions of any authorised development plan.
There is a right of appeal, the terms of reference for any appeal to the Planning Appeal Board relating to a heritage item have been amended so that the Board is required to consider the same matters as the development control body.
A GUIDE FOR MEMBERS OF THE PUBLIC AND OWNERS
2.4. Can I nominate an Item for inclusion on the
2.5. Can I object to the placement of an Item on the
2.8. What does it mean if my property is on the
2.9. When is consent required?
2.10 What penalties are involved?
2.13 Can I appeal against an unfavourable decision?
3.1. The proposed role of Local Councils
3.3. How will this power be granted?
As a result local councils will be expected to be the authorities exercising heritage controls for the Heritage Items in their areas. End of quote.
Several points should be raised in respect to this Act.
1. It has been, and is being increasingly applied. Already all land within 10 miles of the Murray River comes under the Act.
2. It completely centralises control over land usage away from Local Government in affected areas. They remain as administrative bodies for policy determined elsewhere.
3. Property owners' initiatives, from building a stock fence, a farm building, an extention to a home, even to the point of repainting a back door in another colour are subject to the State Heritage Committee.
4. The penalty for non-compliance by property owners of $5,000 plus $1,000 per day is clearly set at complete financial ruin.
5. The form which the Act takes establishes its direct inspiration from Canberra.
6. The heritage initiative begun at Commonwealth level has been given a whole panorama of teeth, the "absence" of which has been used to allay fears.
THE SITUATION IN NEW SOUTH WALES
On the 21st December, 1977, the New South Wales Government had its "Heritage Act, 1977" passed into law.
Once again this was a State Act modelled upon Commonwealth initiatives. A lengthy document of 94 pages, it contains several elaborations of its own.
Under it a "Heritage Council" is established, and provisions are made for "interim conservation orders" and "permanent conservation orders" and a "Register" in which such are to be listed. Controls and penalties are provided for.
In addition, there are "Conservation Schemes" which may be declared for vast areas in which it is not only an offence to damage the "environmental heritage", but it may also be an offence not to maintain your property as the Heritage Council sees fit.
Having examined the Commonwealth and one State Heritage Act at considerable length, and noting that the N.S.W. Act is essentially the same, comment shall primarily be confined to those areas where this Act appropriates to itself powers which go beyond those of the other Acts.
Notice has to be given of intention of making an
interim or permanent conservation order (Sections
29 and 46) to:-
Further, such notice "shall include a statement as to the effect of the interim (or permanent conserva- tion order."
However, in what must be a testament to the
rough-shod manner of the Wran Government, in
respect to both interim and permanent conservation
orders, these Sections continue with the provision
that a "conservation order shall not be rendered
invalid by reason of -
They're supposed to give notice, but then if they don't, well, that's just too sad.
The powers of a Minister of the Crown, and the functions of that Minister under the Act, may be conferred upon the chairman of the Heritage Council (s.35).
This potentially, and almost certainly if a Minister is snowed with paper by the Heritage Council, gives the Heritage Council enormous advantage and power to carry forward its will.
Section 57 states a person shall not, in respect of
anything the subject of a conservation order -
An application to the Heritage Council for approval "shall be accompanied by such fee as may be pre- scribed". If the Heritage Council thinks that this would "affect the significance of that item" your application shall have to be advertised in a "daily newspaper cicrulating throughout the State". Your plans, specifications or similar documents shall be open to inspection by any person for 21 days. The public can "make representations in writing".
After all this the Heritage Council is obliged only to "take into consideration" etc. etc. Even where approval is given it may place such conditions on that approval as it may choose. The Heritage Council may demand "that the applicant give security ... to ensure the satisfactory completion of that work".
Local Governments are limited in a similar way as are individuals in their decisions or actions which affect environmental heritage areas.
Something named "conservation schemes" take precedence over conservation orders. They are aimed not only at users of private property, but also at the traditional functions of local government in determin- ing land usages. They constitute essentially the centralisation into the State Government's hands, via the Heritage Council and the Planning and Environment Commission, of anything which may be construed as being -
(a) conserving, enhancing or utilising, to the
best advantage, the environment; and
Conservation Schemes are declared for certain areas, some, such as the Sydney shore line for 80 miles and several miles inland, are very large.
Section 92 (2) states:-
Local Government certainly takes second place to the Heritage Act of 1977.
Where the Heritage Council is of the opinion that an item of the environmental heritage is being allowed to fall into disrepair for the purposes of affection or enabling demolition, enabling the development of the land, or enabling the development of any adjoining land, an order requiring the owner to carry out repairs can be made. (S.118). The penalty for failing to do so may be resumption or appropriation (without compensation) of that land, or an order forbidding any development on that land for up to 10 years.
Where land is compulsorily acquired (resumed) (S.147) the value of that land shall be determined as if subject to those provisions which control the purposes for which that land may or may not be used.
Where it is "believed on reasonable grounds" that a place contains an item of the environmental heritage, inspection of that place cannot be prevented (S.148). Where a breach of this Act comprises a usage, that use may be restrained.
Where a breach comprises the erection of a building or the carrying out of a work - demolition or removal may be ordered. Where the 14 breach "has the effect of altering the appearance" of a place etc. restoration may be enforced (S.1 54).
Penalties may go to $10,000 plus 6 months' imprisonment.
Of course, a study of an Act does not reveal the full possibilities of its implications. Other Acts referred to, and the relationships with other departments working under other Acts, have to be considered.
The N.S.W. Director of National Parks and Wildlife is always a member of the Heritage Council (S.8 4b). This establishes a link between the National Park and Heritage administrations in N.S.W. There is a third body that needs mention, the National Parks Associa- tion of N.S.W., a private conservation organisation. This Association is funded by both the N.S.W. and Commonwealth Governments (State grants can make such groups eligible for Federal grants).
Funds flow from the N.S.W. Government to this National Parks Association, no doubt after consulta- tion with the N.S.W. Heritage Council and National Parks and Wildlife Service. Information is demon- strably a matter of cross pollination. If State grants, as I've been informed by a close student of National Parks in N.S.W., can make private conservation groups eligible for Federal funds, there has also got to be a close liaison between State and Federal Government bodies.
All this has created a conservation labyrinth into which, once your property has entered, it is very hard to extract it. The instance of the Beardy River area in Northern N.S.W. is an example.
The National Parks Association of N.S.W. (or at least an officer thereof) nominated the Beardy River area to the N.S.W. National Parks and Wildlife Service for a National Park. This, after a great public outcry, and representations by the local Parliamentarian, for the livelihoods of 2,000 people were affected, was subsequently "held in abeyance". The National Parks Association then had two choices left., They could nominate it to the State Heritage Council for entry into their Register, or turn to the Australian Heritage Commission to have the area declared a National Estate. They chose the latter.
All of these affected people are still therefore, at the time of writing, battling for their future with large public meetings, with up to 500 in attendance, representations, petitions and everything else at their command. All hangs in the balance. If their prerogatives over their own property are to emerge intact, it could be years in the process.
EVENTS IN OTHER STATES
The Court Ministry was very nearly manoeuvred into a State Heritage Act.
A Western Australian Heritage Act was discussed at Cabinet level and at meetings of the Parliamentary Liberal Party. Consequent to this, a decision to proceed with Heritage legislation was made. A Heritage Act was drafted and brought before the House.
With nothing but adoration from the press, the Bill proceeded through two readings and looked as though it was all but accomplished. But then a few of the little people, far off from the halls of powers, began to actually look at the Act and grasp a few of its consequences.
The W.A. Act was modelled upon the other Commonwealth and State Acts, incorporating provi- sions to enter private property and homes to search for items of value to the State Heritage, list private property in a Heritage Register, and impose penalties for owners' actions which adversely affected it, and to issue orders for restoration.
A wave of protest broke over the State House startling Liberal Members as they discovered the nature of the Act which was being passed through Parliament with their hitherto consent. This bill was thus promptly dumped into the rubbish bin, where it belonged. This result was a testament to what a small number of people, who get the fact and raise the alarm, can do.
In Victoria, there is no heritage legislation but they do have Acts pertaining to environment. These remain gnresearched by the author but it is most probable that in the present "environment" of grieving greenies and envious environmentalists it must be anticipated that bureaucracy will explore avenues to increase powers on these pretexts. The Tasmanian situation is completely unknown to the author.
Queensland is the one State which has from the start, treated the Australian Heritage Commission and proposals for State Legislation with caution. Opposi- tion within the Queensland Parliament to Federal initiatives on the "heritage" question has grown and stiffened within recent months.
According to Mr. Yencken, Chairman of the Australian Heritage Commission, in answering a ques- tion in response to a Queenslander "Let me assure you that all other States have nominated places for us". He has specifically named Western Australia as willing by nominating large areas for the National Estate, much of it private property.
While co-operation from the N.S.W. and South Australian Governments has, as is well known, been lavished on the Commission, the Victorian and Tasmanian Governments have also been nominating their citizens' property to this Canberra Commission.
The Bjelke-Petersen Ministry has been the only one sufficiently wary and informed not to co-operate. Its opposition, however, has not been wholly passive. Objections by the Queensland Government to the Australian Heritage Commission have followed requests by property owners for assistance in having their objections upheld. So far, the Commission has shown every evidence of co-operating with State Governments that nominate their citizens' property, and none whatever with State Government objections.
The Deputy Premier, Mr. Ron Camm, who is also Minister for Mines has made repeated attacks in the Queensland press on the Heritage Commission Act and has called for its abolition.
Although the Queensland Government has a good record in the area of National Parks, the Commission has declared every State National Park in Queensland a part of the National Estate. This has not been done in the other states.
As this has been done, all Commonwealth funds flowing to Queensland for purposes of National Parks, shall have to be referred to the Heritage Commission for a determination as to whether this may "adversely affect them". Queensland's sovereignty in its national parks is being circumscribed through the oldest tactic in federation, the power of the purse.
It must not be forgotten that the most dangerous powers in the Australian Heritage Act's Section 30 are specifically stated to apply to "a recommendation in relation to direct financial assistance granted, or proposed to be granted to a State.
The oldest battle within federation, the struggle to maintain State rights, and against that old socialist objective, the centralisation of all power, is now tragically raging in an area that ought to be beyond the exploitation of all partisan politics - our national heritage. (emphasis added to original)
THE PEDIGREE OF THE AUSTRALIAN HERITAGE COMMISION ACT
Lord Acton, famous for the observation that all power tends to corrupt, also made the penetrating observation that "Few discoveries are more irritating than those which expose the pedigree of ideas".
In highly centralised governments, amongst which the Commonwealth Government must be included, not one in a thousand of its electors could guess at the inspiration which has presented an Act and suggested its form to the legislators. The role of the citizen is almost wholly confined to contemplating an accomplished Act, listening to the rationale for its existence, "it's to protect our heritage" or "to preserve the environment", assessing it at face value, and accepting it, like it or not.
The Members of Parliament themselves, least of all get access to the drawing up of an Act. Their role is to vote according to Party lines when the Act is presented to them.
The Minister who will be responsible for administering the Act, and for presenting it to Parliament has a decisive part to play and he can affect the form, content and eventual decision. It is primarily through the Minister that Parliamentarians and electors must try to exert their will.
What few understand is that no Minister does himself, draw up an Act. This is done in the Department of the Treasury. The Treasury Department is decisive in the administration of funds, and in the mechanics of drawing up Acts, and as such has advantages that electors and their Representatives cannot often equal.
Treasury must be informed and consulted about every point and provision. Considerable latitude must be allowed to enable the whole to fit together without contradiction. Treasury constantly has the ear of the Minister, and consequently may raise any point with him, and of course, suggest a suitable answer. This of course is a closed operation. The Treasury does the job, the Minister is informed and "consulted" (it's hard to veto something when there is nobody else to draw up the Act, at least without some compromise, and without a technical under- standing of legalism) and the Minister gives the Cabinet a general report on progress.
The pedigree of many of the provisions in any Act is thus often to be found in the minds of Treasury officials and those best placed to influence them. But who is there to be found with influence and an interest in both Treasury and Conservation, who thus could have fathered the Heritage and other environ- mental Acts?
I really don't think its a guessing game. Australia's most influential Fabian Socialist over the last 30 years, Governor of the Reserve Bank for most of its existence thus far, and President of the Australian Conservation Foundation at the moment, is Dr. H.C. (call me Nugget) Coombs.
There is no question that Dr. Coombs would have been consulted on the form of environmental legis- lation. There is likewise little doubt that the response would have been immediate, lengthy and detailed, and followed by continuing discussions with his former intimates in Treasury.
The move by the Prime Minister, Mr. Fraser, to review the various environmental acts, qualified as it was by his statement that his Government would "uphold the principle of the Heritage Act," did not inspire much confidence in the Heritage Act's opponents. It did however bring forth a barrage from its supporters, and this was championed by none other than Dr. Coombs.
Right around Australia the larger newspapers carried the story. The quotes below are from the Adelaide Advertiser, 23/4/79.
Headline: FED. GOVT. ACCUSED OF 'SECRET
Dr. J.G. (Geoff) Mosley, the Director of the
Australian Conservation Foundation, wrote an article
for the National Parks Journal (June/July 1979) in
which he leaves no doubt as to the pedigree of the
Exactly, Dr. Mosley. The only persons who are in a position to make statements about who didn't "inspire" them, obviously know who did "inspire" them, and since nobody makes this type of confession easily, is close to those who did "inspire" them. But then, Dr. Mosley is Dr. Coomb's trusty Director.
Dr. Mosley in this amazing article also gave a clue
to how effective this legislation has been. While all
associated with the Heritage Commission have been
faithfully telling us that they are guiltless in respect
to Fraser Island, Dr. Mosley tells us: -
I have no doubt that Dr. Mosley is truthful in this matter.
Again quoting Dr. Mosley, a clue to the type of pressure placed on the Commonwealth to pass this legislation, which none of its opponents seem to have considered, is revealed.
"During the decade a third major reason for the Commonwealth having a role in conservation - international conservation responsibilities - has become evident. Australia has ratified several important wildlife and heritage conventions and the Commonwealth must play a role in initiating and co-ordinating action to see that these obligations are met. One such agreement is the Convention for the Protection of the World Cultural and Natural Heritage".
I should like to tell you not to take this seriously, to treat it as a type of joke. DON'T. It is in deadly earnest and the statement that Australia "must . see that these obligations are met" is essentially accurate.
Dr. H.V. Evatt, one time Attorney-General of Australia, the leading Fabian Socialist in this country in his generation and the foremost Australian mentor of Dr. H.C. Coombs in these matters was a deep student of what are called the "external affair powers".
Dr. Evatt wrote an extensive work "The King and His Dominion Governors" the foreword of the second edition of which was written by Professor Zelman Cowan (now Sir Zelman Cowan and Governor-General of Australia) in which Evatt explored every possible way in which the Constitution could be circumvented. One such way is through what is known as the external affairs powers.
The subject of these powers is truly complex legally but can perhaps best be brought down to one sentence thus: In the event of Australia signing a Treaty with another country/countries, and of that Treaty being ratified and passed into law by the Commonwealth Government, such Treaty may over-rule internal law and the Constitution. Note that I have said "may". In some instances it does, in some other instances it may not, but in an enormous amount of law it has never been tested by the High Court of Australia and so the situation is unknowable but treated with the utmost caution.
United Nations Conventions, such as the Conven- tion for the Protection of the World Cultural and Natural Heritage, are international treaties, and if and when signed and ratified by the Commonwealth, become the law of the land. When Dr. Mosley made mention of "a third major reason" you may be assured that the Government was reminded that they "may" have been in a delicate legal situation if no action was taken. Remember it was, as Dr. Mosley also points out, the McMahon Government which announced the intention of introducing "environmental assessment legislation."
Dr. Evatt was so enamoured with the potential for socialism by over-riding the Australian Constitution through external affairs powers, that at the height of his political career he left Australia for some years to join the United Nations. He became the first President of the United Nations General Assembly of the United Nations in 1948-9.
To this day the United Nations (of whose 147 members, 22 might be considered democracies) is a ready source of Conventions, Australia has signed 17 about 60, and had ratified at my last information 14. Socialists' frequent references to "Australia's poor record" in ratification has no innocent intent.
The Commonwealth Government, having been manoeuvred into ratifying the "World Heritage" Convention, without the Parliamentary Members having any real notion of what this would require eventually of Australia, then gently had its implica- tions shown to it, and having come thus far and being fearful of embarrassment through a confession of ignorance that action was thus required of them, the Commonwealth Government prime ministered by McMahon moved on with the programme.
Dr. Mosley freely admits that the clever use of semantics was about all that was necessary to carry the political light-weights we sent to Canberra.
"The use of the term 'national estate' was something welcomed by all parties, and at the general elections in 1975 and 1977 both parties expressed their commitment to the retention of the acts..."
The sheer volume of Legislation pushed through by the Whitlam Ministry is clear evidence that they were not convinced in office. Whitlam's early addresses around Australia as reprinted by the Fabian Society and sold through the Communist book shops are full of "regional government", "environmental controls" and much else. Carefully refined notes sufficient upon which to draft legislation, were no doubt one of the products of many years of devotion to gradualism within the Fabian Society.
The Justice Hope Committee of Inquiry must be
regarded as the improvised launching pad for a
vehicle manufactured elsewhere. The terms of
reference given it by the Minister for Urban and
Regional Development, Mr. Uren, and the Minister
for Environment and Conservation, Dr. Cass, make
this quite clear.
a. the nature and state of the national estate;
Perhaps Lord Acton is worth re-quoting: "Few discoveries are more irritating than those which expose the pedigree of ideas".
IN DEFENCE OF HERITAGE
Knowledge is a pre-requisite to effective action. A problem understood is already half solved. It is with this in mind, that this booklet is being made available.
If those who have read it, do follow this action, beginning perhaps with the distribution of further copies amongst their contacts, the grass roots base of opposition can be broadened considerably.
Ultimately the public position in relation to these matters will be decisive. The many special interest groups that are hastily coming together under the pressure of being adversely affected, will only succeed to the degree that public opinion on a broader spectrum can be moved. Dr. Coombs and his Australian Conservation Foundation understand this, and have imposed themselves at the centre of 1500 conservation groups in order to exploit and channel the genuine feeling for our heritage to serve socialist aims:
The battle is public and political, not sectional and merely economic.
The battle cannot be joined without a small number of people educating themselves and developing a very considerable knowledge of nature of this very subtle attack on our heritage through "heritage". However here a warning must be sounded. Affected people may develop very thick files of information and become extremely well informed. The result of this may be that they are the best informed people who have ever been dispossessed and disinherited.
Those small number of people who are well informed on the heritage issue, must follow this with an equally sound knowledge of what to do about it, and set about doing it.
Action to Inform Ourselves
(3) A sample of an effective advertisement which has been run with good effect in some Queens- land provincial newspapers is also available from the address listed in (1) free of charge. It is in the form of "An Open Letter to All Rural Representatives" with a headline "The Australian Heritage Commission Act of 1975 - MUST GO!!!" About $200 will usually run an advertisement like this in your local news- paper, and the sample advertisement can show sponsors what their money will do. $1500 would run the advertisement in the Australian and give it nation wide coverage and make contact with affected people right around Australia. Does anyone have any suggestions?
(4) The author has contact with several people in different parts of Australia who have a sound grasp of this subject and are capable speakers on it. Most places could have a speaker made available. Interested people should contact me at 204 West Street, Toowoomba, Queensland, 4350, and I should be able to organise some- thing.
(5) The object of all our endeavours should be towards our Parliamentary Representatives. Remember that they are our paid representa- tives, in theory they are the paid servants of their electors and outside of establishing this in practice no success can be expected. A representative cannot re-present anything until it has first been presented to him. Our duty as electors is to present the facts and to make our will in the matter known to him.
Avoid lengthy and involved debate. Make it quite clear that if he wishes to re-present his electors, he must re-present their will in the matter as it has been presented to him. Every effort should be made to encourage others to do likewise. A simple standard letter to facilitate this may be distributed as follows:
Electors may freely use or not use such a letter as they may choose. Parliamentarians know that for every letter on any subject that they receive, at least another five intended to do it but didn't get around to it. They don't need very many before they become rather sensitive on the matter.
One of the best letters that can be written to your Parliamentarian is one which simply asks questions. He has got to do some research before he can answer you. Even if you know the answer you can ensure that he does also - and you don't have to ram it down his throat.
I could list many more things that might be done,
but enough is enough.
The one thing that no system can withstand is
personal initiative. That initiative must by definition
be out of the individual and of his creation.
will and initiative are there it may seek expression in
any of a thousand ways, and it will count, it shall be
decisive, it is imperative in defence of our heritage.
Remember this pamphlet was originally written in 1980 - a lot of water has since passed under the bridge... the situation is much worse than then... but the battle still goes on. The pedigree of ideas is much more obvious to us all now. It was hard for Australians to grasp what was happening, they had never experienced what such people as the Russian people had experienced under the Soviet regime.
When the Australian League of Rights tried to warn fellow Australians of the dangers of such legislation the people believed their politicians and newspapers before the League. In fact they believed the lies and smears written and said about the League and that great true patriot Eric D. Butler.
But politicians have now shown their true colours - much more so than 30 years ago... people are not so party-blinded as they then were. At last they are becoming aware that this land is under attack- from the enemy within and without.
Shamefully many of the nation's so-called leaders would willingly sell out their people and nation for a 'mess of miserable pottage'...
"New Times Survey" is published by the Australian League of Rights, Box 1052. G.P.O. Melbourne 3001.