Second Reading
Resumed from 27 June.
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [3.18 pm]: I rise to make a few comments about the Heritage Bill 2017. As has been mentioned by my colleague Hon Tim Clifford, who is the Greens’ spokesperson for heritage and who has primary carriage of this bill, the Greens will support this bill. As the spokesperson for integrity of government, I thought it was important that I rise to raise some concerns that still remain within the bill. I have a proposed series of amendments on the supplementary notice paper, which members have hopefully received copies of, so I will speak to some of the concerns to give some background about the thinking behind these particular amendments. As mentioned by my colleague, the Greens absolutely support the tightening of heritage legislation and, as such, we recognise this is a welcome contribution because it is certainly an improvement on the current state of play around heritage, although it would have been good to see far more extensive consideration of what constitutes heritage. We still have a lot more to do around a range of areas, particularly looking at the heritage of recognised trees, for example, as well as Aboriginal heritage.
I want to relay to members the principal concerns in stakeholder feedback about integrity issues that were relayed to the Greens during our consultation on the Heritage Bill 2017. Effectively, that feedback constitutes two concerns. First, the bill gives the Heritage Council of Western Australia potentially conflicting powers and functions for heritage property, including the provision of paid heritage services; various regulation functions, including advising the minister; and issues of ownership and management. Second, decisions made by the Heritage Council will have the potential to affect the work prospects and therefore the income of council members’ companies or the companies that they work for. This will create a challenge to ensure that the Heritage Council’s decisions are not tainted by members’ conflicts of interest, real or perceived.
I will talk a little more about the conflicting functions and powers of the Heritage Council as a whole. Proposed section 17 sets out the Heritage Council’s functions and proposed section 18 sets out its powers. They are a mix of hands-off regulatory activities and hands-on management and provision of service activities under which the Heritage Council can work directly on a heritage project for profit and also advise the minister or the decision-making authority on that project. The council can own, manage or develop a heritage property and it can also advise the minister or the decision-making authority on that property. The Greens say—the stakeholders we spoke to most certainly agree—that this will compromise the Heritage Council because it will give it the ability to advise the minister about its own property and projects, which means that decision-making will not be impartial. It will potentially put the Heritage Council in competition with the private sector if it provides for-profit heritage services. Clause 19 permits the Heritage Council to delegate any of its functions when appropriate, yet it has not done so, as I understand it, and the bill does not require it to delegate in such situations. A question for the minister is: is my understanding of this is correct or incorrect?
One stakeholder of a particular heritage development advised the Greens of a situation in which the Heritage Council considered and supported the development proposal for a property that it owned. A member of the Heritage Council sat on the local council’s planning committee and voted to approve the development. I understand that in 2016, the now Minister for Heritage, who at the time was the shadow Minister for Heritage, raised these very same concerns. The Greens likewise raised these concerns at the briefing. I note that they were also raised in the other place. I also note the government’s multifaceted responses to these concerns and I will use this opportunity to address those responses.
One government response is that the Heritage Council acts for the Crown in the public interest. With respect, that is a very poor argument. A conflict of interest is a conflict of interest, whether it occurs in the public or private sphere. A conflict of interest in either sphere is not okay because it can make processes and decisions self-interested instead of ensuring that decisions are impartial.
The second argument that has been put is that the process will be transparent. Again, I respond by saying that that is a very poor argument because it effectively mistakes transparency for integrity. There is no doubt at all that transparency is an integral part of integrity, but on its own it is simply not sufficient. Merely disclosing a conflict of interest does not stop self-interest. The purpose of an agency disclosing a conflict of interest is to ensure that the customer has the choice of avoiding it by going to a different agency. In the world of legal and financial services, this is a very real option, but the Heritage Council is not one of many Western Australian heritage councils. If the Heritage Council is conflicted, there is nowhere else to go.
Another argument made by the government is that the Heritage Council does not give approvals; rather, it advises the regulator on approvals. This argument is pure political sophistry and it is a little bit cute. Clients instruct lawyers, but should we facilitate lawyers giving self-interested advice to inform that decision? Investors make financial decisions, but should we facilitate financial advisers giving self-interested advice to inform that decision? Of course we should not—we know that—and neither should we facilitate self-interested advice from the Heritage Council.
The fourth argument put forward is that Victoria’s equivalent law gives the Heritage Council of Victoria a similar mix of functions. I note that this claim has been disputed by the National Trust, which has made it clear that no other Australian state or territory mixes its management and regulatory functions. It also stated that England has deliberately split management and regulatory functions between different organisations. In any case, I note that in other contexts in Western Australia, the government has chosen to split management and regulation functions between different bodies. I refer, for example, to the division of responsibilities between the Department of Biodiversity, Conservation and Attractions; the Department of Water and Environmental Regulation; and the Forest Products Commission.
It has also been said that the Public Sector Commissioner has been consulted. The appearance or perception of conflict is recognised by the government, but it is not a real conflict of interest because the Public Sector Commissioner is an independent umpire who provides detailed guidance on how to manage it. I ask the minister to explain for the record in as much detail as possible exactly how the so-called appearance of a conflict of interest between the management and regulation functions of the Heritage Council is currently being managed. Solving this problem goes beyond the scope of any amendment that I can offer the chamber for its consideration. It involves consideration of the responsibilities of other bodies and also the budget. I can only ask the minister to take notice of the problem and point to clause 19’s delegation provisions as one possible means of avoiding future conflict between the Heritage Council’s functions.
I will speak a little bit about the conflicts of interest of members of the Heritage Council. I have been talking about conflicts of interest for the Heritage Council as a whole, but individual council members can also have conflicts of interest. The Heritage Council faces a particular challenge in that there is only a relatively small pool of local heritage experts from which to choose its members. What is even more challenging is that some members of that group currently work together in partnerships or companies, which is symptomatic of Western Australia. A further challenge is that members of the group employ each other as needed on their projects. For example, a heritage property developer might hire a heritage architect or engineer. These ongoing relationships strongly increase the likelihood of conflicts of interest. A Heritage Council member who does not support someone else’s heritage project might miss out, or fear that they will miss out, on getting work on that person’s next heritage project.
I note that the Heritage Council of Western Australia has a declaration of interest policy, and I understand that this is intended to form the basis for regulations that are going to be made under clause 14. I thank the government for providing the Greens with a copy. I understand that it is also on the website. The policy requires members who have a direct or indirect pecuniary interest or a proximity interest—that is, they neighbour the land under consideration—to disclose the interest, to absent themselves during consideration or discussion of the matter and not to vote on the matter. The policy requires members who have an impartiality interest to declare it, but they may continue to participate in consideration, discussion and voting on the matter unless they cannot set the interests aside and make a merit-based decision. An impartiality interest is defined inclusively and includes kinship, friendship, partnership, membership of an association, association with any decision-making process relating to the matter, previous work associated with the matter and a declared position on the matter. If a member declares an interest, but the interest appears to be minor or not adequately made, and that is not defined, the Heritage Council can decide whether to allow the member to be present; and, if so, whether they take part in consideration; and, if so, whether they may vote. Frankly, that policy is insufficient to deliver impartial decision-making in the context of the challenges faced by the Heritage Council that I have outlined.
I have two particular concerns about the policy. Firstly, a person with an impartiality interest is by definition not impartial. That person should therefore not participate in decision-making, whether or not they think they can set that interest aside, because we know that bias can operate subconsciously as well as consciously. Secondly, I do not agree that it is appropriate to have an exception that allows the Heritage Council to permit a member who has a conflict of interest, perceived to be minor or inadequately made, to participate. I reiterate that the context is a small interrelated and income-related community. One way of decreasing the chance of conflict of interest and therefore protecting the impartiality of the Heritage Council’s processes is to appoint only Heritage Council members whose income is not dependent on other people’s heritage projects—for example, heritage experts who are now retired or who work in the academic or government sector. I note that the Guildford Association, which other members have already spoken about, strongly advocate for this idea. I acknowledge that the modern trend is to appoint people according to their knowledge, skills and experience, rather than according to the sector they come from, and that in itself is not problematic, but given the risk to impartiality posed by drawing too many members from a small pool of working commercial heritage experts, I suggest that in this case there is considerable merit in drawing members from outside the commercial pool when practicable. The policy really should be changed to ensure that Heritage Council members who have any kind of conflict of interest cannot participate in decision-making, and I strongly urge the minister to ensure that in changes made in the regulations when they are gazetted that the Heritage Council’s processes are as properly impartial as they need to be. As my colleague Hon Tim Clifford has already said, the Greens will be looking at this very closely. Another way of decreasing the chance of conflict of interest and thereby protecting the impartiality of the Heritage Council’s processes is to broaden the fields of expertise from which members can be drawn. The transitional provisions of the bill say that the current Heritage Council members will continue to serve, and I understand from the briefing that their terms are up to five years, but I have seen no provision prohibiting reappointment for consecutive terms.
In December last year, the fields of the members of the Heritage Council, the register committee and the development committee that assist the Heritage Council were checked and it was found that there were quite a number of property experts and architects. Clause 14 permits the minister to nominate a more balanced membership, and it is certainly hoped that that is going to happen. A list of 11 fields is provided and the minister can also nominate a person from any other field that is prescribed. One field I would particularly like to see prescribed is heritage tourism. Given the government’s current efforts regarding tourism, I am surprised that has not been put on this list, because we have been told that this is a priority area for the government. The Guildford Association is also advocating for the following further fields it would like to see specified or prescribed in the bill. Firstly there is structural engineering, and I note that both engineering and construction are included in the list already, but the Guildford Association points out that the preponderance of WA heritage that is built structures merit structural expertise specifically. Secondly, there is urban geography—that is, a person with expertise in topography who knows why a community is sited where it is and in the way it is. This is particularly relevant to historic towns like Guildford, New Norcia or York. Thirdly, there is movable heritage—that is, people with archival or curatorial experience. Although the bill does not apply to movable heritage itself, the definition of place includes such items if they are historically or physically associated with the relevant land. Fourthly, there is horticulture. Landscape architecture is already on the list, but both the Guildford Association and John Viska, the chair of the WA branch of the Australian Garden History Society, stress that horticulture is about plants more than design, and a horticulturalist knows how a plant will behave at a particular location, its pruning and maintenance needs, and how to ensure a heritage garden can survive and not lose cultural heritage significance through lack of horticultural knowledge. Given that the definition of “place” in clause 7 includes gardens, human-made parks or sites and trees in or adjacent to human-made settings, this inclusion also has merit.
The bill also contains provision for co-opted members without voting rights, unless authorised to vote under the regulations, to be appointed by the Heritage Council. I note that co-option may be for a set period or set matters. This enables local Aboriginal people to be involved in Heritage Council work on matters that relate to their country. Although clause 9 excludes places that are of cultural heritage significance solely because of their Aboriginal connections, some places are of cultural heritage significance as defined to both Aboriginal and non-Aboriginal people. Indeed, clause 5 specifically recognises that a place may have diverse values for a whole range of different groups. Again, the Guildford Association has cited as an example the St Vincent’s aged-care facility in Swan Street, Guildford, where the place, in addition to having early colonial period historical significance, also includes a floodway, indigenous vegetation and the Wagyl’s resting place, which are of significance to the local Noongar people. I understand that currently consultation happens if Aboriginal cultural values are identified or if the place is an area where Aboriginal cultural values are known to exist, such as the Swan River. But consultation is not the same as formal co-option or a vote, so I urge the Heritage Council to use the co-option powers in the bill to appoint local Aboriginal people for matters that relate to their country. I also strongly urge the government when it drafts the regulations to ensure that an Aboriginal person who is co-opted has voting rights as well.
The Guildford Association has also strongly advocated for a standing co-option with voting rights in relevant matters of a local person with demonstrated heritage knowledge or experience. The thinking behind this is that in historical towns such as Guildford, which contain a number of heritage places, each heritage place is linked to the others as part of a set. Changes to one heritage place can therefore reduce the cultural heritage significance of not only that place, but the whole set. Therefore, the Heritage Council would benefit from the expertise of a local person who can identify those links. The definition of “cultural heritage significance” in clause 5 is consistent with its definition in the standard Australian Burra Charter. The Burra Charter and its accompanying practice note, “Understanding and assessing cultural significance”, make it clear that the concept includes the setting—including views to and from the place— and its relationship with other places. However, the Greens are advised that the government’s interpretation is that the relationship between different heritage places cannot be considered unless the area has already been registered as a heritage precinct under the local planning scheme, such as Fremantle’s West End, or Guildford, if it manages to successfully become a heritage town. If this understanding is correct, I ask the minister to please clarify, because it is a matter of considerable concern to the Guildford Association.
We have a number of amendments on the supplementary notice paper through which we can discuss some of the issues that I have raised, and I ask members to consider them. Having said that, I again indicate—as has already been well indicated by my colleague Hon Tim Clifford—that the Greens will support this bill. We recognise that it is a step in the right direction. We think it could have been a lot better, but at this point we are happy to accept any improvements that will go some of the way towards ensuring that we protect our heritage.
[Speeches and comments from various members]
Question put and passed. Bill read a second time.
Committee
The Deputy Chair of Committees (Hon Martin Aldridge) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clauses 1 to 8 put and passed.
Clause 9: Places to which Act does not apply —
Hon ROBIN CHAPPLE: Clause 9 states —
This Act does not apply to a place —
(a) that comprises only the natural environment; or
(b) that has cultural heritage significance solely on account of its connection with Aboriginal tradition or culture.
At the moment, the Aboriginal Heritage Act is being reviewed and there have been a large number of submissions. Within those submissions and in general discussions it has been touted that there might at some stage be an amalgamation of the Heritage Act and the Aboriginal Heritage Act. Have there been any discussions at all with the department in these areas?
Hon SUE ELLERY: No.
Clause put and passed.
Clauses 10 to 13 put and passed.
Clause 14: Membership and proceedings —
Hon ALISON XAMON: As I already spoke about in my second reading contribution, I propose the following amendment. I move —
Page 11, lines 14 to 15 — To delete the lines and substitute —
(xii) heritage tourism;
(xiii) structural engineering;
(xiv) horticulture;
(xv) urban geography;
(xvi) moveable heritage
(xvii) any other field prescribed for the purposes of this subsection.
The rationale for this amendment is to ensure that a whole range of other areas are considered when we are talking about the make-up of the Heritage Council. As has already been mentioned, heritage tourism should be considered as a potential area of expertise and tourism is an area that this government has said it wants to prioritise. It would seem that it would be useful to get expertise on that. Likewise, structural engineering, as has already been mentioned, particularly with Perth’s built heritage, can be a very useful expertise to have access to. Horticulture, for the reasons I already outlined, is different from landscape architecture. Very often, plantings, particularly those that were put in at the time of settlement, will require unique care and maintenance, particularly if there is likely to be an impact on plants. It is really important to have that expertise so that we do not inadvertently end up killing the very thing that we are trying to save. Likewise, I include urban geography and moveable heritage for the reasons that I outlined in my second reading contribution. It is important to ensure that we are able to potentially gain a broader range of expertise so that we are as best informed as we can be.
[Speeches and comments from various members]
Hon ALISON XAMON: I will explain a bit more about the motivation for trying to extend this provision. I will also respond to Hon Donna Faragher. The bill was brought on for debate quite suddenly, and there was not much notice that it was coming on, so I had not had the opportunity to circulate the amendments within the necessary time frame. I apologise for that, but if there had been more notice that the bill was coming on for debate, I certainly would have been able to do that. Nevertheless, I will go back to the amendment standing in my name. As I mentioned in my second reading contribution, and as has been raised with me as a concern by stakeholders, one of the problems is that at the moment the Heritage Council has a preponderance of property experts and architects and yet, as has already been contemplated, it is intended that expertise be drawn from a broad range of people. Representing stakeholders in this place, I have been hoping, by extending the number of provisions, to effectively flag that we need a broad range of experts from a wide range of fields to ensure that when we make decisions around heritage, people are as well-informed as they can be. It is absolutely the case that the bill before us allows for “any other field prescribed for the purposes of this subsection”, and I have lifted that provision and added it to the end of my amendment precisely for the reason that has been articulated. We do not want to lose the capacity to bring in any expert deemed relevant. The minister’s example of a graffiti heritage expert is actually a very pertinent one, bearing in mind that we are distinguishing between tagging, which is not heritage, and graffiti, which very well could be. I think about the heritage listing being applied to a lot of the Banksy graffiti, for example, in England. It is quite foreseeable that these sorts of areas may be considered fields prescribed for the purposes of this subsection. Again, the reason for this is to ensure that people are aware that we rely on a lot of people from a lot of areas to provide us with the necessary knowledge and expertise. This amendment flags that. I acknowledge that “any other field prescribed for the purposes of this subsection” effectively enables exactly the experts I have suggested be prescribed to be co-opted or brought in. That is effectively the purpose of this amendment. We need to ensure that the Heritage Bill reflects the fact that we are reliant on a broad range of experts. Drawing only from a very narrow number of fields is a problem in ensuring that we are getting proper advice.
[Speeches and comments from various members]
Amendment put and negatived. Hon ALISON XAMON: I move —
Page 11, line 19 — To insert after “office” —
(which must not exceed 5 consecutive years)
As I indicated in my second reading contribution, at the moment there does not appear to be any limitation on the length of time someone can sit on the Heritage Council. I have already indicated that that raises concerns about potential conflicts of interest, and how they are managed, particularly if some people, as I understand, have been sitting on the Heritage Council for extended periods. I recognise that in a state such as Western Australia there may be a relatively small pool of expertise, although we have just identified a range of people on whom we could be drawing for expertise. I am proposing that we start looking at putting a cap on the way the terms operate. This does not mean that, once someone has done five years, they cannot come back again, but it is about limiting the way in which the terms are managed—ideally, they are staggered within the membership itself—so that if someone comes on, they cannot be there for more than five years without a break.
I think that ensuring a reasonable turnover of members is really integral to good management, because it will not only get fresh ideas and new perspectives, but also help to manage the concerns around conflicts of interest. Again, stakeholders have put this to me as a necessary and important amendment that we need to start looking at. Quite serious concerns have been raised with me around people who are on the Heritage Council and apparently never get off, and what that means in terms of not being able to ensure that new people can come in with their thoughts, perspectives and ideas. Also, if someone has been able to consolidate themselves into that position for quite some time, potentially there are concerns around how decisions are being made and relationships are being managed.
[Speeches and comments from various members]
Hon ALISON XAMON: In response to the last comment made by the minister, I assure the minister that this issue has been raised with the Greens and that is one of the reasons it is being raised in this chamber now. Minister, I was hoping that I could receive some advice. What is the longest term of any of the members who are currently sitting on the Heritage Council? The minister has described a process of renewal that, as I have been advised, is not necessarily being reflected in practice.
Hon SUE ELLERY: A couple of points need to be made. To put it in some context, the current membership of the Heritage Council has been extended several times to take account of the fact that this bill was in the process of being developed and consulted on in various forms. We have been in an extraordinary period since 2011, when the consultation on a new bill began, and a series of extensions have been granted. In the current membership, the shortest period is about eight months. The longest period is 20 years. That is one person. No-one else has more than 10 years. The bulk are around six years. Two are 18 months and the balance of the rest is around six years.
Hon ALISON XAMON: I thank the minister for that advice. It is consistent with the concerns that have been raised with me and particularly the idea that someone can sit on the Heritage Council for 20 years in a row. I suppose that this advice emphasises precisely why this amendment has been moved. Five years is a pretty good and reasonable time for members to know what they are doing and to work with their colleagues, but at the same time ensure a reasonable turnover of expertise and individuals. I want to be very clear that I do not know the individual involved who has been there for 20 years, so in no way am I casting aspersions on that person. I suggest that, potentially, they have been there for that long because they are considered to have quite a degree of expertise that is worthy of contribution. I make that very clear even though we do not know whom we are talking about.
Taking the personalities out and coming back to the issue of the amendment in front of us, I think that the minister’s advice really helps to inform that the process of renewal that was described by the minister, which would certainly be optimal, is not the practice. That is the concern. This is why it is being suggested that, as we finally have the Heritage Bill in front of us and are trying to enshrine some better processes, part of a better process is to ensure that we have limits on consecutive terms. I want to be very clear that that does not prohibit someone who has been very valuable from coming back on. It means that we ensure people have a break around that and other people are perhaps contemplated for membership during that period. As such, I confirm that I think that the information provided has simply reinforced the need for this amendment.
Hon DONNA FARAGHER: I appreciate what Hon Alison Xamon is saying, but my concern relates to the way that the amendment is actually worded. Although the member said it would not stop a member who has done their five years from reapplying, the amendment is fairly blunt—it says “which must not exceed 5 consecutive years”. The way I read that, in normal language, it is no more than five.
Hon Sue Ellery: As in no extensions.
Hon DONNA FARAGHER: Yes; that is, no extensions. Thank you, minister. That is the way I read it. From what I am hearing from the member, that is not her intent, but if I were to read that part of the legislation without hearing what the member said, I would read that as saying “five consecutive years—that’s it; you’re off; you can’t reapply”.
Committee interrupted, pursuant to standing orders.