National and international frameworks

The long-term protection of Australian heritage is designed to be achieved primarily through protective legislation at the national and state and territory levels. Most of this legislation is dedicated heritage or protected area legislation (McConnell & Janke 2021), but protection in some areas is also achieved through statutory planning, national guidelines, high-level policy and multilateral government agreements. The various mechanisms offer different types and levels of heritage protection.

The key national guidelines cover:

• natural heritage (the Australian Natural Heritage Charter: for the conservation of places of natural heritage significance)
• cultural heritage generally (the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance, known as the Burra Charter)
• Indigenous heritage (Ask first: a guide to respecting Indigenous heritage places and values (AHC 2002b); Engage early: guidance for proponents on best-practice Indigenous engagement for environmental assessments under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (DOE 2016); and Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia and the Best Practice Standards in Indigenous cultural heritage management and legislation (HCOANZ 2020)).

The legislation and guidelines take a ‘values-based management’ approach, which advocates for heritage protection through the retention of heritage significance (see Respecting and protecting heritage values).

Australia also has heritage protection obligations that derive from international legal instruments and policies it has signed (conventions, declarations, charters and protocols) (McConnell & Janke 2021). In many cases, these are mirrored in national and other levels of legislation – for example, as with the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCO 1972).

In the past 5 years, there have been some recent improvements to legislation and policy that have made a significant positive contribution to heritage protection and management in Australia – for example:

• recognising intangible values in the amended Aboriginal Heritage Act 2006 (Vic)
• developing Dhawura Ngilan: a vision for Aboriginal and Torres Strait Islander heritage in Australia (2020) and its recent endorsement by the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ)
• enacting the Underwater Cultural Heritage Act 2018 (Cth).

However, the complex framework is failing to adequately protect heritage – not all heritage is protected, heritage that is protected is not always adequately managed, and much of the legislation is outdated. Overall, the framework is too complex and is poorly connected, leading to gaps in protections, and confusion about responsibilities and obligations, especially between levels of government (Mackay 2016a, du Cros 2019, The Auditor-General 2019, Samuel 2020, McConnell 2021a, McConnell 2021b). A particular issue is the lack of publicly available data on threats and impacts to heritage, which would provide an early warning and allow more effective risk management and avoidance.

Assessment Level and degree of heritage protection

2021

Limited confidence

2016

Statutory protection, which is the main form of protection for heritage, is variable across heritage types. It ranges from no specific legislation for geoheritage (and limited protection through other statutory mechanisms), to existing, but highly inadequate, statutory protection for Indigenous heritage, to generally good statutory protection for the other types of heritage. However, there are inadequacies in many cases in how these are operationalised, and in the aspects of heritage included. Only historic heritage is systematically provided with protections at the local (statutory planning) level, although in some jurisdictions these have been reduced. In some jurisdictions, existing protections can be overridden by major project legislation. Regulation of development is generally poor, contributing to poor outcomes for heritage in this context.
Related to United Nations Sustainable Development Goal targets 11.4, 14.5, 15.1

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Assessment Level and degree of heritage protection for Indigenous heritage

2021

Limited confidence

2011

The legal protection framework for Indigenous heritage is significantly lacking and does not protect Indigenous heritage from destruction. Indigenous people are calling for more control of their heritage. There is evidence of greater Indigenous involvement in heritage management through strategic partnerships, and Indigenous-led engagement and management.

Assessment Level and degree of heritage protection for natural heritage

2021

Limited confidence

2011

Natural heritage has generally good statutory protections, but the operationalisation of these is less adequate. Local-level protection (statutory planning) for natural heritage is poor.

Assessment Level and degree of heritage protection for geoheritage

2021

Limited confidence

Although geoheritage can be protected as part of natural heritage at the national level, and in a small number of cases at the state and territory level, there is no legislation to specifically protect geoheritage. Local-level protection (statutory planning) for geoheritage is poor.

Assessment Level and degree of heritage protection for historic heritage

2021

Somewhat adequate confidence

2011

There are generally good statutory protections for historic heritage, although aspects such as cultural landscapes, objects and intangible heritage are mostly poorly provided for. However, the operationalisation of some statutory mechanisms is inadequate, and the historic heritage provisions of some statutory mechanisms, largely local government related, are being reduced.

Assessment Level and degree of heritage protection for World Heritage

2021

Somewhat adequate confidence

World Heritage has generally good statutory protections, but the operationalisation of these (i.e. how the protections are used and the places managed) is less adequate.

Assessment Level and degree of heritage protection for National Heritage

2021

Somewhat adequate confidence

National Heritage has generally good statutory protections, but the operationalisation of these (i.e. how the protections are used and the places managed) is less adequate.

National legislative framework

The Council of Australian Governments, through the Intergovernmental Agreement on the Environment (Australian Government 1992), has agreed that heritage protection should be undertaken by the level of government best placed to deliver agreed outcomes. Consequently, legislative heritage protection is in place at the national, state and territory, and local levels for the different types of heritage. The concept is a hierarchy of heritage protection, where Commonwealth legislation covers nationally relevant places and places of international significance, cascading down to ‘lower’ levels of heritage, covered by state- and territory-level and local systems for protecting sites of heritage significance.

At the federal level, the main piece of heritage legislation covering all types of heritage is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). There are additional, separate pieces of legislation for Indigenous heritage, underwater cultural heritage and movable cultural heritage. Also, the Great Barrier Reef Marine Park Act 1975 (Cth) protects 99% of the Great Barrier Reef World Heritage Area. At the state and territory level, most states and territories have separate, standalone Indigenous and historic heritage legislation that provides protection through listing (McConnell & Janke 2021).

At the local level, heritage protection occurs primarily through statutory planning, including heritage codes or schedules, overlays and zoning as reserves in municipal planning schemes or local environmental plans (see Statutory planning). The approach is very variable from state to state. In most parts of Australia, historic heritage has the most protection at the local level.

Legislative protection for all types of heritage in Australia is inadequate, although the deficiencies are different depending on the type of heritage. Specifically, there is inadequate legislation for geoheritage; Indigenous heritage legislation is not fit for purpose (HCOANZ 2020, Joint Standing Committee on Northern Australia 2021); significant amendments to the EPBC Act have been recommended (Samuel 2020); and state and territory planning legislation requires strengthening. Concerted legislative reform is therefore critically needed.

General matters for consideration as part of legislative reform include:

• better meshing of the 2 current approaches to heritage protection (i.e. listing and protected area reservation)
• providing for connectivity in natural (biological) heritage conservation (see Boer & Gruber 2010:58)
• considering cumulative impacts (to individual places and to the heritage resource more generally)
• assessing the suitability of offsetting as a mechanism for heritage protection
• updating heritage terminology, including ‘historic’ heritage and developing a term for biological values to complement the term ‘geoheritage’
• ensuring checks and balances (e.g. regular independent performance review).

EPBC Act

The EPBC Act Review (Samuel 2020) was highly critical of the Act’s operation and recommended fundamental reform of the Act, including in areas relevant to heritage:

• greater use of Indigenous knowledge in environmental management
• a fundamental shift, from a transaction-based, process-driven approach focused on individual projects to one centred on effective and adaptive planning
• legally enforceable national environmental standards (a mechanism to describe the desired environmental outcomes and seen as the centrepiece of the legislation)
• an independent oversight and audit capacity, using an adaptive approach (including better planning and evaluation of management effectiveness)
• mechanisms for cumulative impacts (on individual places and the heritage resource generally) to be considered in heritage protection
• active environmental restoration.

The shortcomings identified in the Samuel Review suggest that there is a need for legislative reform. The Australian Government is yet to fully respond to the recommendations of the Samuel Review.

Geoheritage legislation

The protective framework for geoheritage in Australia is currently inadequate, and a national geoheritage protection framework is needed to sit alongside the management of other types of heritage. The foundation for a geoheritage protective framework is the work of the past 30 years in Australia to develop classification systems, framework approaches and methodologies for geoheritage conservation. There are also methodologies developed and used overseas, particularly in Britain and the United States, which may provide useful insights for a national framework for geoheritage protection in Australia.

In developing a national framework for geoheritage protection, it will be important that the full suite of geotypes (i.e. geological, geomorphological, pedological and hydrological) is protected, through either listings or protected areas:

• Listings have been the approach to date in Australia, and are the approach advocated by some practitioners (e.g. Worboys 2012, Brocx & Semeniuk 2019b). The success of this approach depends on the ability to have landscape-scale geoheritage protection, and on the implementation of a sound classification framework to ensure comprehensive, adequate and representative listings.
• Protected areas are advocated by other practitioners on the basis that it is vital that geodiversity and geoheritage are ‘accorded a level of importance equivalent to biodiversity as part of an ecosystem approach that recognises the value and integrity of both abiotic and biotic processes in nature conservation’ (Crofts et al. 2015:3). This approach also requires a comprehensive geoheritage inventory, and a clear, logical, objective methodological framework that includes a systematic classification framework (Crofts et al. 2015).

Indigenous heritage legislation

Indigenous heritage is covered by state, territory and Commonwealth legislation (Samuel 2020):

The current laws that protect Indigenous cultural heritage are well behind community expectations. They do not deliver the level of protections that Indigenous Australians deserve and the community expects. These laws should be immediately reviewed, and reform should be delivered in line with best-practice requirements for Indigenous heritage legislation.

Significant reform of Indigenous heritage protection is required to address current inadequacies, as has been recognised by HCOANZ (2020). The destruction of the Juukan Gorge rockshelters (see case study: Juukan Gorge rockshelters – highlighting the poor protections for Indigenous heritage under current Australian Indigenous heritage legislation) highlighted that the range of legislation that relates to Indigenous heritage is either:

• not working effectively – for example, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the EPBC Act in relation to emergency powers
• not working effectively together – for example, the Native Title Act 1993 (Cth) and state-level Indigenous heritage legislation.

Free, prior and informed consent of Indigenous people is the best-practice standard for involvement and management of Indigenous heritage. However, little Australian heritage legislation currently includes this standard, and there is a restrictive approach to Indigenous cultural heritage rights in Australia. Although models are moving towards engagement of, and consultation with, Indigenous people, this is often not the case when development takes place (see Recognition and protection of Indigenous heritage).

Review is required at all levels. There is a need to review the national-level legislation that provides protections for Indigenous heritage, including the Native Title Act, to update and improve these, and ensure that they work together effectively. There is also a need to update the existing state-level Indigenous heritage legislation, half of which was developed more than 30 years ago. Consideration also needs to be given to how Indigenous heritage is protected at the statutory planning level (see Statutory planning).

New and revised legislation needs to recognise Indigenous rights and perspectives (HCOANZ 2020) (also see the Indigenous chapter). This includes Indigenous people having a key decision-making and advisory role in the operation of the legislation in decisions about their heritage, and for custodial rights and obligations to be recognised.

The Indigenous heritage legislation that currently best addresses Indigenous heritage protection and community expectations is the Aboriginal Heritage Act 2006 (Vic), which includes clear heritage protections through cultural heritage management plans, and effective Traditional Custodian participation through the recognition and rights of representative Indigenous parties. It is the only legislation in Australia that provides protection (albeit limited) for intangible heritage in its own right. The extensive, targeted Indigenous consultation being undertaken in Victoria in the current review of the Act, led by the Victorian Aboriginal Heritage Council (VAHC 2020b, VAHC 2020a), is regarded as an improved approach to Indigenous consultation in relation to heritage legislation review.

Statutory planning

In Australia, statutory planning is essentially a development control mechanism designed to allow development and established land use while also providing for social and environmental needs. It does not employ a values-based approach to identifying and protecting heritage (see Respecting and protecting heritage values).

Improved statutory planning is required to improve heritage protection at the local level. In theory, there are mechanisms in place to protect heritage in this context (i.e. state heritage legislation and local-level planning schemes, such as the local environment plans in New South Wales). In practice, these mechanisms are failing to protect heritage values because they are inadequate or not operating effectively, or statutory protections are being eroded, including by being overridden by other legislation. An example of this erosion is seen in Tasmania, where the new Tasmanian Planning Scheme will significantly reduce protections. Similarly, cultural heritage in New South Wales is seen at being at serious risk from the state significant developments provisions, which can override provisions of the Heritage Act 1977 (NSW). Cuttagee Bridge is an example of this (National Trust NSW 2021).

Statutory planning reform is needed to improve heritage protection, both in relation to the scope of heritage protected and to the actual protections offered. Key issues in relation to statutory planning in Australia and heritage protection that need to be considered include the following:

• Planning schemes (and equivalent approaches) have traditionally provided for historic heritage, primarily built heritage, and continue to do so, but few provide protections for Indigenous heritage, natural heritage or cultural landscapes (McConnell 2021c).
• Existing planning protections are inadequate – planning control mechanisms take a narrow focus to evaluating development impacts. Improved statutory planning is needed, particularly for historic heritage in relation to urban development and redevelopment (see Historic heritage).
• Protection via statutory planning relies heavily on heritage being identified and listed. A lack of requirement to populate lists (or equivalent) means that there are significant gaps in heritage identification at the local level that are not being addressed. Contributing to this issue is that planning schemes are infrequently amended, which prevents heritage lists from being regularly updated.
• Heritage protections are being reduced, often as part of planning reform, through more restrictive definitions, greater exemptions and more lenient performance criteria.
• Planning legislation is changing to allow local government provisions to be overridden in the face of ‘major developments’, with many Australian states now having this type of legislation.
• Checks and balances are being eroded through the limiting of appeal rights, including the loss of third-party appeal rights in several Australian states, and increasingly high costs to appeal and if appeals are lost.
• The lack of heritage expertise within local government limits the expert evaluation of heritage impacts in relation to works applications, and provision of strategic-level advice on how heritage listing and the consideration of heritage at the broader planning level can be improved (see Human resources).

National heritage management framework

The consensus among heritage professionals in Australia is that there is a need to strengthen heritage protections, improve the capacities of the different levels of government to manage heritage, and improve the operation of existing legislation (Figure 28). The Australian Committee for the International Union for Conservation of Nature (ACIUCN) concluded in relation to nature conservation that ‘policy innovation and political commitment … have diminished or disappeared in recent years (and) landmark approaches have been abandoned’ (Zischka et al. 2017:2).

Increasing pressures, including climate change, are demanding an improved management response, evident in the Royal Commission into National Natural Disaster Arrangements report (Binskin et al. 2020:94) finding that ‘there is a need to better integrate environment and heritage needs into emergency planning and response (including) working with relevant non-government organisations to establish best practice arrangements and responses relevant to emergency wildlife response and recovery’ and that ‘greater consistency and collaboration is also required in the collation, storage, access and provision of data for Australian flora and fauna’. The Royal Commission also noted that ‘better national coordination is required to enable significant reduction in disaster risks and impacts in the future’.

Limited communication and engagement across different levels of government, and across the different heritage types, with widely varying approaches and standards, is a major contributor to poor decision-making and inaction in various areas. This is resulting in lost efficiencies, and lost opportunities for information sharing and addressing major issues (Samuel 2020).

Limited use of heritage experts, and limited scope and decision-making powers of consultative and advisory heritage mechanisms, including statutory councils in some cases, are impacting the efficacy of heritage management (McConnell 2021a). A pressing issue in this respect is the limited powers of Indigenous people to influence the management of Indigenous heritage (see Recognising Indigenous rights), including the lack of a national level body.

Australia lacks a framework that delivers holistic environmental management, which, ‘given the nature of Australia’s federation, is essential for success’ (Samuel 2020:iii), as well as ‘a more closely integrated legislative and institutional national, state and territory regime’ (Boer & Gruber 2010:58). ACIUCN (Zischka et al. 2017:3) calls for all sectors to ‘break down jurisdictional silos and boundaries and create new models and partnerships for innovative conservation management and financing’.

Key to achieving an effective, national, integrated management framework is:

• recognising the capacities of the different levels of government to manage, and development of effective mechanisms to achieve good management. This includes broadening and strengthening the role of national councils and committees
• improving the standardisation of approaches to heritage management. Areas that would benefit from standardisation and are important to heritage protection include national environmental standards; environmental impact assessments; risk management, particularly in response to climate change; and data capture and management (see Strategic planning and adaptive management) (Samuel 2020)
• improving standardisation and coordination of heritage data nationally (e.g. du Cros 2019)
• providing for all key stakeholder groups to be engaged in an active and balanced way that is respectful and promotes heritage protection
• ensuring that Indigenous rights can be respected by including Indigenous people in decision-making roles.

Heritage management in Australia could also benefit by exploring the nature–culture, or culture–nature, approach advocated by the International Council on Monuments and Sites (ICOMOS) and the IUCN. This approach is based on the understanding that natural and cultural heritage are closely interconnected at a landscape and seascape level, and that effective and lasting conservation of such places depends on better integration of philosophies and procedures regarding their identification and management (ICOMOS Emerging Professionals Working Group 2020). The approach recognises that intangible heritage and diverse perspectives are integral to successful conservation strategies.

Australian Heritage Strategy

The Australian Government is to be commended for its vision and leadership in developing and introducing the Australian Heritage Strategy in 2015 (Australian Government 2015), but implementation has been slow. Given the complexity of heritage protections and approaches to management in Australia, a national strategy is of critical importance in providing a single, unified, agreed pathway for heritage protection across Australia, and for highlighting priority needs to address identified issues.

Overall, it is not clear how well the Australian Heritage Strategy has been able to do this. The scheduled 5-year review due in 2020 was delayed by the COVID-19 pandemic and is still being undertaken by the Australian Government.

Anecdotally, there is reasonable satisfaction with the Australian Heritage Strategy and its objectives and action, but there is concern over the low level of implementation in the first 5 years. This is regarded as largely due to a lack of leadership by the Australian Government (McConnell 2021a).There are several likely reasons the strategy’s implementation may be hampered:

• It is focused on a single process (i.e. a shared partnership approach to heritage management).
• The strategy is not framed broadly enough to deal with the specific issues currently facing heritage.
• The highly generalised actions are difficult to implement and measure (e.g. the actions for objective 1 in the strategy.

The Australian Heritage Strategy would therefore benefit from having an overarching focus on addressing national issues for heritage protection and a multilevel, more holistic approach. Adopting measures to address key strategic-level management issues would provide clear guidance for action going forward. Key measures include:

• improving the statutory planning framework in relation to heritage protection
• improving heritage risk evaluation and management nationally
• establishing greater national standardisation in heritage data management and heritage evaluation.

Including objectives and actions with specific and measurable outcomes, and identifying who is responsible for taking the lead on these, would strengthen implementation.

International heritage obligations and responsibilities

The various international conventions, declarations, protocols and other international guidance that exist for heritage protection (McConnell & Janke 2021) make an important contribution to natural and cultural heritage protection in Australia. They also provide important international protections of relevance (e.g. in relation to Antarctica and other external territories).

Australia is, in general, seen as successfully implementing its international responsibilities and, in particular, in playing a significant leadership role with respect to the Madrid Protocol, the World Heritage Convention and the Ramsar Convention. Australia has also implemented the UNESCO Recommendation on the Historic Urban Landscape 2011 (UNESCO WHC 2011) by participating in a pilot project (Vines 2020).

Australia has not yet formally recognised or signed several international instruments that would benefit important areas of heritage, including the Convention on the Protection of Underwater Cultural Heritage 2001 (UNESCO 2001) and the Convention for the Safeguarding of the Intangible Cultural Heritage 2003 (UNESCO 2003).

Furthermore, greater integration of the principles of the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) into cultural heritage legislation at all levels of government is warranted, given Australia’s Indigenous history and the issues that affect Indigenous Australians as a result of colonial invasion and administration. This would also promote wider recognition of the rights enshrined in it.

For cultural heritage, various other international declarations, charters and policy documents related to heritage provide important guidance for cultural heritage practice whose status in Australia is unclear – for example, the Sendai Framework for Disaster Risk Reduction 2015–2030 (UNDRR 2015), the Recommendation on the Historic Urban Landscape 2011, the Nara Document on Authenticity 1994 (ICOMOS 1994), and the Xi’an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas 2005 (ICOMOS 2011). Their formal endorsement by the Australian and state and territory governments would be a useful action towards establishing national standards for cultural heritage practice in Australia.

Leadership and partnerships

Leadership is critical to effective heritage protection and management. Given the complexity of the Australian heritage protection framework, leadership is required at different levels. Collaborative partnerships are also important because of the complex national framework for heritage, and the diverse stakeholders in heritage. The Australian Heritage Strategy recognises this, as it has 2 of its 3 high-level outcomes relating to national leadership and strong partnerships (see Australian Heritage Strategy).

Leadership

Internationally, the Australian Government is a recognised leader in the protection of Antarctica, where it has actively pursued and encouraged important conservation objectives. Australia has also been an active voice for World Heritage conservation during its terms as a member of the World Heritage Committee (2007–11 and 2017–21), during which Australia led the development of the World Heritage Convention’s Strategic Action Plan (DAWE).

Australia’s 2 key nongovernment heritage organisations – ACIUCN and Australia ICOMOS – are active at the international level. ACIUCN plays a major role in relation to the World Commission on Protected Areas, and Australian members play a significant role in the development of protected area management guidance. Australia ICOMOS supports the work of ICOMOS by having members on the bureau and by having members actively participating on most International Scientific Committees of ICOMOS. In 2023, Australia will host the triennial General Assembly and Scientific Symposium of ICOMOS.

In relation to other heritage areas, leadership by Australia is less evident – for example, the lack of commitment to UNDRIP (Oscar 2021), the Convention for the Safeguarding of the Intangible Cultural Heritage (UNESCO 2003) and the Convention on the Protection of the Underwater Cultural Heritage (UNESCO 2001, Shearing 2012). A need for greater leadership by the Australian Government has been identified in relation to heritage generally for the past decade, particularly regarding the role of the Australian Heritage Council, national coordination for Indigenous heritage and resourcing for heritage management (SoE 2011 Committee 2011, Mackay 2016a).

At the national level, leadership is generally considered lacking in heritage protection and management (Zischka et al. 2017, du Cros 2019, McConnell 2021a, McConnell 2021c). Strategic planning and adaptation management planning in relation to managing climate change impacts and other environmental risks, and in relation to the effectiveness and operation of heritage legislation, are key areas seen as requiring greater leadership.

A coordinated approach by Australian governments

The responsibilities of the different levels of government are established by the Intergovernmental Agreement on the Environment (Australian Government 1992), and mechanisms have been established to facilitate management and promote coordination across different levels of government. In relation to cultural heritage, the primary mechanism is HCOANZ, which includes national, state and territory Indigenous and historic heritage council chairs and agency officials. The Heads of Parks Agencies Forum is a less formal body that provides coordination in relation to protected areas.

HCOANZ promotes a nationally collaborative approach and, occasionally, takes a nationwide coordinating role in relation to cultural heritage, as is evident in the development of Dhawura Ngilan: a vision for Aboriginal and Torres Strait Islander heritage in Australia (HCOANZ 2020). However, less has been achieved in other key areas such as standardising data nationally, quality standards, and risk evaluation and management. Tying the work of HCOANZ (and possibly the Heads of Parks Agencies Forum) more closely to the Australian Heritage Strategy could help to address this.

Few other formalised heritage partnerships exist. However, informal discussion and liaison between government and key national peak heritage bodies – in particular, ACIUCN, Australia ICOMOS and the National Trusts of Australia – are important. Enhanced partnership arrangements between the Australian Government and such organisations could also help improve heritage management nationally, including through identifying key heritage issues and improving implementation of the Australian Heritage Strategy.

Marine environment protection and fishing, and the Tasmanian timber industry in the late 1980s to 1990s are industry examples of where significantly better heritage sustainability outcomes have been achieved through a strong, formal, shared or partnership approach. These outcomes are not achievable solely through industry self-regulation. Tourism and mining are key industry areas that require improved heritage management, and formal national partnership approaches focused on achieving genuinely sustainable heritage outcomes in these industry areas may significantly assist in achieving such outcomes.

For Indigenous heritage, less formal partnerships are helping to proactively manage and protect sites. For example, alliances between Indigenous corporations and national parks, and environmental organisations such as the Environmental Defenders Office and Bush Heritage Australia, have established new business- and community-based ways of continued Indigenous connection to Country (see the Indigenous chapter).