The failure of the EPBC Act to preserve the heritage values of ANZAC Cove

The controversy surrounding the Australian Government’s request of the Turkish Government to undertake road building works at ANZAC Cove, and the ensuing damage alleged to have been caused to the heritage values of ANZAC Cove, raises questions about how the work was requested and approved by the Commonwealth Government without being assessed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The Federal Parliament passed the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Heritage Amendment Act) in August 2003. Following Senate approval, the then Minister for the Environment and Heritage, Dr David Kemp (minister), commented that ‘for the first time, Australians will be able to nominate and protect those places that define us as Australians, that tell us stories about who we are and how we came to be the nation we are today’ and that the laws would ‘provide real protection for the heritage values of the places’.

The Heritage Amendment Act established a National Heritage List. Places in Australia and abroad that possess outstanding heritage values to Australia because of their importance to Australia’s natural and cultural history are eligible for inclusion on the List. A place that has been included on the National Heritage List is referred to as a National Heritage place.

Shortly before the Heritage Amendment Act commenced on 1 January 2004, the Prime Minister, in a door-stop interview on 18 December 2003, commented that ‘… ANZAC Cove … seems overwhelmingly the appropriate first choice for listing on the National Heritage List’. However, ANZAC Cove is not among the seven places that have been listed in the 16 months since the Heritage Amendment Act commenced.

If ANZAC Cove had been listed on the National Heritage List (or indeed, should it be listed in the future), it would have been protected under sections 15B(7), 15C(11) and 15C(12) of the EPBC Act. These sections generally provide that a person must not take an ‘action’ outside of Australia that has, will have or is likely to have a significant impact on the national heritage values of a national heritage place without the approval of the minister. These sections create maximum penalties of up to $5.5 million for a corporation and imprisonment for a term of up to seven years for a natural person.

Under international law, a nation cannot impose its laws on a foreign entity acting in a foreign land. Consequently, the above sections of the EPBC Act could only apply to Australian citizens, governments and corporations. This means that even if ANZAC Cove had been listed on the National Heritage List, the fact that the offensive road building works were undertaken by a Turkish company meant that the EPBC Act could not have regulated the works.

Nevertheless, even if ANZAC Cove had been listed on the National Heritage List, the Australian Government could have requested and approved the building works without the need for the works to be assessed and approved under the EPBC Act. Under the EPBC Act, the Australian Government’s request to the Turkish Government to construct the road, and any approval of the Australian Government of the design and extent of works, would not amount to an ‘action’ regulated under the EPBC Act. This was recently confirmed in the January 2005 case of Save the Ridge Inc. v Commonwealth of Australia [2005] FCA 17, where the Federal Court held that the adoption and amendment of development plans by a federal government agency is not an ‘action’ under the EPBC Act. By implication, this case stands for the proposition that ‘actions’ can only be taken by the entity or person physically undertaking the work on the ground.

Despite these limitations, section 160 of the EPBC Act provides a potential avenue to address this shortcoming. Section 160(1) requires Commonwealth agencies and employees to obtain and consider an advice from the minister before it gives certain types of authorisations as listed in section 160(2) or prescribed by regulation. For example, section 160(2)(a) requires such advice to be obtained before the Commonwealth, under Australia’s foreign aid program, enters into a contract, agreement or arrangement for implementing a project that has, will have or is likely to have a significant impact on the environment anywhere in the world. A regulation made under section 160(2)(d) could require such advice to be obtained by a Commonwealth agency or employee before requesting, recommending or approving an action that has, will have or is likely to have a significant impact on the heritage values of an overseas place inscribed on the National Heritage List.

Of course, this would only be effective if ANZAC Cove was placed on the National Heritage List. While Turkey has objected to the perceived intrusion of such action on its sovereignty, introducing a regulation under section 160(2)(d) still has merit—the Turkish Government may at some point change its mind, and other places around the world, Kokoda for example, may also justify inclusion on the National Heritage List.

This commentary was written by me and published on Freehills’ website. Freehills owns the copyright and should be cited as the author. It has been reproduced here with Freehills’ consent.