Western Australia: Heritage Act 2018 (WA)

Western Australia Heritage Act 2018 Western Australia Heritage Act 2018 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Objectives 1 4. Terms used 1 5. Term used: cultural heritage significance 1 6. Term used: owner, in relation to land 1 7. Term used: place 1 8. Act binds Crown 1 9. Places to which Act does not apply 1 10. Other laws not affected 1 Part 2 — The Council Division 1 — Constitution of the Council 11. Council established 1 12. Status 1 13. Execution of documents by Council 1 14. Membership and proceedings 1 15. Co‑opted members and role of CEO 1 16. Remuneration and allowances 1 Division 2 — Functions and powers of Council 17. Functions of the Council 1 18. Powers of Council 1 19. Delegation by Council 1 Division 3 — Relationship with other public authorities 20. Public authorities must assist Council 1 Division 4 — Relationship between Minister and Council 21. Administration of this Act 1 22. Minister's directions 1 23. Minister to have access to information 1 24. Delegation by Minister 1 Division 5 — Staff 25. CEO to provide assistance, staff and facilities 1 26. Use of other government staff and facilities 1 Division 6 — Finance 27. Financial Management Act 2006 and Auditor General Act 2006 apply 1 28. Funds of Council 1 29. Heritage Fund 1 30. Borrowing 1 31. Guarantee by Treasurer 1 32. Effect of guarantee 1 33. Notice of financial difficulty 1 34. Exemption from rates 1 Part 3 — The State Register of Heritage Places Division 1 — The register 35. The register 1 36. Form and content of register 1 Division 2 — Entry in the register Subdivision 1 — Registration conditions 37. Conditions for registration 1 38. Factors relevant to cultural heritage significance 1 Subdivision 2 — Process for entry into register 39. Nomination for entry in the register 1 40. Review and registration recommendation 1 41. Direction by Minister 1 42. Entry in register 1 Division 3 — Amendment of register entries 43. Request for amendment of land description in register entry 1 44. Detailed consideration of amendment to land description 1 45. Land description amendment direction by Minister 1 46. Amending land description in register entry 1 47. Other amendments 1 Division 4 — Removal of entries from register 48. Request for removal 1 49. Detailed consideration of removal 1 50. Removal direction by Minister 1 51. Removing entry from register 1 Division 5 — Statements of cultural heritage significance 52. Adoption of statement of cultural heritage significance 1 53. Updating and amending statements of cultural heritage significance 1 54. Notification of adoption, update or amendment 1 Part 4 — Protection orders and repair orders Division 1 — Protection orders 55. Consent order 1 56. Stop work order 1 57. Continuing protection order 1 58. Content of protection order 1 59. Notification of protection order 1 60. Coming into effect of protection order 1 61. Duration of protection order 1 62. Tribunal's powers as to protection order 1 Division 2 — Repair orders 63. Terms used 1 64. Repair notice 1 65. Repair order 1 66. Notification of repair order 1 67. Standard of works 1 68. Termination of repair order 1 69. Tribunal's powers as to repair order 1 70. Exclusion of liability 1 Part 5 — Proposals affecting places of heritage interest Division 1 — Preliminary 71. Terms used 1 Division 2 — Referral of proposals Subdivision 1 — Proposals that must be referred 72. Proposals to which Subdivision applies 1 73. Referral of certain proposals to Council 1 74. Advice on referred proposal 1 75. Decision on referred proposal 1 76. Effect on certain proposals and decisions when place becomes registered place 1 Subdivision 2 — Proposals that are not required to be referred 77. Decision on certain unreferred proposals 1 Subdivision 3 — General 78. Regulations 1 Division 3 — Proposed works for which there is no decision‑maker 79. Permit for works affecting registered place 1 80. Tribunal's powers as to works permit 1 Part 6 — Support for conservation Division 1 — Valuation of land 81. Land to which this Division applies 1 82. Valuation of land 1 83. Request for interim valuation 1 Division 2 — Conservation assistance 84. Provision of financial, technical and professional assistance 1 Division 3 — Modification of planning instruments 85. Terms used 1 86. Council may recommend modification order 1 87. Minister may modify planning instruments 1 88. Powers of the Tribunal in relation to modification order 1 Part 7 — Heritage agreements 89. Terms used 1 90. Heritage agreements 1 91. Land to which a heritage agreement may relate 1 92. Form and content of heritage agreement 1 93. Implied and model provisions for heritage agreements 1 94. Termination or variation of heritage agreement 1 95. Evidential status of certified agreement 1 96. Record of heritage agreements 1 97. Notification to Registrar 1 98. Notification to Mining CEO 1 99. Notification to Valuer‑General 1 100. Enforcement of heritage agreement by Council or public authority 1 101. Powers of the Tribunal in relation to heritage agreement 1 Part 8 — Local heritage surveys 102. Term used: local heritage survey 1 103. Local heritage survey 1 104. Purposes of local heritage survey 1 105. Guidelines for local heritage surveys 1 Part 9 — State government heritage 106. Terms used 1 107. Guidelines about State government heritage 1 108. Disposal of heritage assets 1 Part 10 — Acquisition and compensation 109. Compulsory acquisition 1 110. Compensation for compulsory acquisition 1 111. Tribunal's powers as to acquisition and compensation decision 1 112. Acquisition by consent 1 113. Request for acquisition 1 Part 11 — Enforcement Division 1 — Inspectors 114. Appointment of inspectors 1 115. Police officers to have functions of inspectors 1 116. Identity cards 1 Division 2 — Entry and investigation 117. Term used: investigation purposes 1 118. Entry for investigation purposes 1 119. General powers for investigation purposes 1 120. Use of assistance 1 121. Application for entry warrant 1 122. Issue of entry warrant 1 123. Duration of entry warrant 1 124. Effect of entry warrant 1 125. Execution of entry warrant 1 126. Powers to obtain information 1 127. Obstructing performance of functions 1 128. Impersonation 1 Division 3 — Offences 129. Damaging registered place 1 130. Contravention of protection order 1 131. Onus of proof in demolition offences 1 132. Contravention of repair order 1 Division 4 — Orders following offences 133. Restoration order 1 134. Prohibition order 1 Division 5 — Miscellaneous provisions regarding offences 135. Time limit for commencing criminal proceeding 1 136. Council or authorised person may commence prosecution 1 137. Compensation order 1 138. Finding of fact in certain proceedings to be evidence in other proceedings 1 139. Enforcement of requirement to pay money 1 140. Continuing offence 1 141. Requirement to mitigate damage 1 142. Liability of successors in title 1 143. Liability of officers for offence by body corporate 1 145. Liability of principals for offence by agent 1 146. Liability of employers for offence by employee 1 147. Agency or employment no defence 1 148. Defences 1 149. Offence that is also breach of heritage agreement 1 Division 6 — Miscellaneous provisions regarding civil proceedings 150. Action for damages 1 151. Securing compliance with Act 1 Part 12 — Compensation in relation to work prohibition 152. Terms used 1 153. Application for compensation 1 154. Recommendation by Minister for compensation 1 155. Treasurer's determination if no recommendation by Minister 1 156. Restriction on claim for compensation 1 Part 13 — Miscellaneous 157. No private cause of action 1 158. Limited effect of processes under the Act 1 159. Confidentiality 1 160. Challenge to entry in register 1 161. Protection from personal liability 1 162. Fees and charges for recovery of costs by Council 1 163. Notices and statutory notification 1 164. Regulations 1 165. Review of Act 1 Part 14 — Repeal, savings and transitional provisions Division 1 — Repeal 166. Heritage of Western Australia Act 1990 repealed 1 Division 2 — Savings and transitional provisions 167. Terms used 1 168. Interpretation Act 1984 not affected 1 169. Council a continuation of former Council 1 170. Members of former Council continue in office 1 171. Unfinished proceedings: Council 1 172. Completion of things commenced 1 173. Continuing effect of things done 1 174. First annual report of Council 1 175. Heritage Fund a continuation of former Heritage Account 1 176. Heritage Conservation Incentive Account closed 1 177. Register 1 178. Interim registration 1 179. Conservation orders 1 180. Heritage agreements 1 181. Local heritage survey 1 182. Powers in relation to transitional matters 1 Part 15 — Amendments to other Acts 183. Building Act 2011 amended 1 184. Constitution Acts Amendment Act 1899 amended 1 185. Liquor Control Act 1988 amended 1 186. Planning and Development Act 2005 amended 1 163. Application for development of heritage place 1 187. Strata Titles Act 1985 amended 1 188. Swan Valley Planning Act 1995 amended 1 Notes Compilation table 1 Uncommenced provisions table 1 Defined terms Western Australia Heritage Act 2018 An Act to — * recognise the importance of, and promote understanding and appreciation of, Western Australia's cultural heritage; and * provide for the identification and documentation of places of cultural heritage significance and for the conservation, use, development and adaptation of such places; and * repeal the Heritage of Western Australia Act 1990; and * make consequential amendments to various other Acts, and for related purposes. Part 1 — Preliminary 1. Short title This is the Heritage Act 2018. 2. Commencement This Act comes into operation as follows — (a) Part 1 (other than sections 3 to 10) — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Objectives The objectives of this Act are, with due regard for the rights of property ownership — (a) to promote understanding and appreciation of Western Australia's cultural heritage; and (b) to recognise the importance of places of cultural heritage significance and their stories in understanding the course of Western Australia's history; and (c) to provide for the identification and documentation of Western Australia's places of cultural heritage significance; and (d) to encourage and facilitate the conservation, continuing use, development and adaptive reuse of places of cultural heritage significance in ways that represent high standards of heritage conservation and are in harmony with cultural heritage values. 4. Terms used In this Act, unless the contrary intention appears — CEO means the chief executive officer of the Department; chairperson means the person appointed under section 14(1) as chairperson of the Council; consent order has the meaning given in section 55; conservation, in relation to a place of cultural heritage significance, means the conservation of the place so as to retain its cultural heritage significance, including — (a) maintenance, preservation, restoration, reconstruction, adaptation and interpretation of the place; and (b) retention of the associations and meanings of the place; and (c) retention or reintroduction of a use of the place; continuing protection order has the meaning given in section 57(1); Council means the body established by section 11(1); Crown land has the meaning given in Land Administration Act 1997 section 3(1); cultural heritage significance has the meaning given in section 5(1); Department means the department of the Public Service principally assisting the Minister in the administration of this Act; development, in relation to land, has the meaning given in the Planning and Development Act 2005 section 4(1); development approval means — (a) approval under the Planning and Development Act 2005 for the development of any land; or (b) approval, authorisation, consent or permission under any other written law to do anything that would or might significantly affect the physical character of any land; heritage agreement means an agreement in operation under Part 7; inspector means a person appointed under section 114(1) to be an inspector. land description, in relation to a place, means a description sufficient to identify the location and boundaries of the land included in the place by reference to — (a) a certificate of title created for the purposes of the Transfer of Land Act 1893; or (b) particulars of any lot, plan, diagram or survey set out in such a certificate; or (c) in relation to land that is not under the operation of the Transfer of Land Act 1893 — (i) particulars set out in any muniments of title; or (ii) other particulars sufficient to identify the location and boundaries of the land included in the place; local planning scheme has the meaning given in Planning and Development Act 2005 section 4(1); Minister for Lands means the Minister as defined in the Land Administration Act 1997 section 3(1); occupier, in relation to land, means a person by whom or on whose behalf the land is lawfully occupied or, if there is no person in lawful occupation, a person entitled to possession of the land; owner, in relation to land, has the meaning given in section 6; owner, in relation to a place, means an owner of any land that is included in the place; place has the meaning given in section 7(1); prescribed means prescribed by the regulations; protection order means — (a) a consent order; or (b) a continuing protection order; or (c) a stop work order; public authority means any of the following — (a) a Minister of the Crown; (b) an agency or an organisation as those terms are defined in the Public Sector Management Act 1994 section 3(1); (c) a local government or regional local government; (d) a body or instrumentality, whether incorporated or not, or the holder of an office, that is established or continued for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of the State; register means the State Register of Heritage Places established and maintained under section 35(1); registered land means land that is included in a registered place; registered place means a place in relation to which there is an entry in the register; repair order has the meaning given in section 65(1); staff, in relation to the Council, includes — (a) staff of the Department provided to the Council under section 25; and (b) officers and employees of which the Council makes use under section 26(1); statutory notification means a notification given by the Council in accordance with section 163(3); stop work order has the meaning given in section 56(1); Tribunal means the State Administrative Tribunal. 5. Term used: cultural heritage significance (1) In this Act — cultural heritage significance means aesthetic, historic, scientific, social or spiritual value for individuals or groups within Western Australia. (2) Cultural heritage significance may be embodied in a place itself and in any of its fabric, setting, use, associations, meanings, records, related places and related objects. (3) A place may have diverse values for different individuals or groups. 6. Term used: owner, in relation to land In this Act — owner, in relation to land, means — (a) if the land is Crown land in a managed reserve as defined in the Land Administration Act 1997 section 3(1), the management body of that reserve; and (b) if the land is Crown land vested in a person under a written law other than the Land Administration Act 1997, that person; and (c) if the land is Crown land that is a road, whichever of the following has the care, control and management of the road under a written law — (i) the local government in whose district the road is situated; (ii) the Commissioner of Main Roads; (iii) the Minister to whom the administration of the Public Works Act 1902 is committed; and (d) if the land is Crown land not mentioned in paragraph (a), (b) or (c) that is subject to a lease, the Minister for Lands and the lessee under the lease; and (e) in relation to any other Crown land, the Minister for Lands; and (f) in relation to land that is not Crown land — (i) if the land is subject to the Transfer of Land Act 1893 or the Land Administration Act 1997, a proprietor within the meaning of the Transfer of Land Act 1893; and (ii) if the land is subject to the Registration of Deeds Act 1856, the holder of an estate or interest registered by memorial under that Act; and (iii) a mortgagee or encumbrancee in possession of the land; and (g) in any case, a person who is the holder of, or has made application for, a mining tenement under the Mining Act 1978 in respect of the land or a permit or licence under the Petroleum and Geothermal Energy Resources Act 1967 in respect of the land. 7. Term used: place (1) In this Act — place means a defined or readily identifiable area of land and may include any of the following things that are in, on or over the land — (a) archaeological remains; (b) buildings, structures, other built forms, and their surrounds; (c) equipment, furniture, fittings and other objects (whether fixed or not) that are historically or physically associated or connected with the land; (d) gardens and man‑made parks or sites; (e) a tree or group of trees (whether planted or naturally occurring) in, or adjacent to, a man‑made setting. (2) For the purposes of the definition of place in subsection (1) — (a) the area of land may include any number of contiguous or non‑contiguous parts; and (b) the area of land may be included in any number of lots, in separate titles and in different ownerships; and (c) the area of land includes as much of the land beneath the surface as is required for the purposes of conservation; and (d) it is immaterial that water covers the area of land at any particular time or at all times. 8. Act binds Crown This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 9. Places to which Act does not apply 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. [Section 9 amended: No. 27 of 2021 s. 349(2); No. 23 of 2023 s. 29(2).] 10. Other laws not affected Nothing in this Act affects the operation of — (a) the Aboriginal Heritage Act 1972; or (b) the Conservation and Land Management Act 1984; or (c) the Environmental Protection Act 1986; or (d) the Maritime Archaeology Act 1973. [Section 10 amended: No. 27 of 2021 s. 349(3); No. 23 of 2023 s. 29(3).] Part 2 — The Council Division 1 — Constitution of the Council 11. Council established (1) A body called the Heritage Council of Western Australia is established. (2) The Council is a body corporate with perpetual succession. (3) A proceeding may be taken by or against the Council in its corporate name. 12. Status (1) The Council is an agent of the State and has the status, immunities and privileges of the State. (2) The Council is the State's expert body on matters concerning places of cultural heritage significance, other than places — (a) that comprise only the natural environment; or (b) that have cultural heritage significance solely on account of their connection with Aboriginal tradition or culture. [Section 12 amended: No. 27 of 2021 s. 349(4); No. 23 of 2023 s. 29(4).] 13. Execution of documents by Council (1) The Council must have a common seal. (2) A document is duly executed by the Council if — (a) the common seal of the Council is affixed to it in accordance with subsections (3) and (4); or (b) it is signed on behalf of the Council by a person or persons authorised to do so under subsection (5). (3) The common seal of the Council must not be affixed to a document except as authorised by the Council. (4) The common seal of the Council must be affixed to a document in the presence of 2 members of the Council each of whom must sign the document to attest that the common seal was so affixed. (5) The Council may, by writing under its common seal, authorise any of the following persons to sign documents on behalf of the Council, either generally or subject to the conditions that are specified in the authorisation — (a) a member or members of the Council; (b) a staff member or members. (6) A document purporting to be executed in accordance with this section is presumed to be duly executed unless the contrary is shown. (7) When a document is produced bearing a seal purporting to be the common seal of the Council, it is presumed that the seal is the common seal of the Council unless the contrary is shown. 14. Membership and proceedings (1) The Council consists of up to 9 persons appointed to be members by the Governor on the nomination of the Minister. (2) The Minister must nominate for appointment as chairperson of the Council under subsection (1) a person who in the opinion of the Minister has demonstrated knowledge, experience, skills or qualifications relevant to the position of chairperson. (3) With a view to maintaining a balanced membership reflecting the functions of the Council, the Minister must nominate for appointment as ordinary members of the Council under subsection (1) up to 8 persons who in the opinion of the Minister have — (a) demonstrated knowledge of or experience in heritage matters; and (b) demonstrated knowledge, experience, skills or qualifications in one or more of the following fields — (i) archaeology; (ii) architecture; (iii) construction; (iv) engineering; (v) governance; (vi) heritage conservation or interpretation; (vii) history; (viii) landscape architecture; (ix) local government; (x) property ownership, development or marketing; (xi) urban and regional planning; (xii) any other field prescribed for the purposes of this subsection. (4) Regulations may provide for the following — (a) the publication of advertisements seeking candidates for nomination to membership of the Council; (b) the term of office, resignation and removal of members; (c) the appointment of alternate members to deputise for members who are temporarily unable or unavailable to act; (d) the disclosure, recording and management of members' conflicts of interest; (e) the convening and conduct of meetings of the Council; (f) the establishment, membership and proceedings of committees of the Council; (g) other proceedings of the Council. 15. Co‑opted members and role of CEO (1) The Council may appoint any person having relevant specialised knowledge or experience to be a co‑opted member of the Council for a period, or in relation to matters, specified in the instrument of appointment. (2) A person appointed under subsection (1) or a nominee of that person — (a) may, for the period or in relation to the matters in respect of which the person is appointed, take part in the deliberations of the Council but cannot vote on a matter unless authorised to do so under the regulations; and (b) otherwise, has all the functions and entitlements of a member for that period or in relation to those matters. (3) The CEO, or a nominee of the CEO, is entitled to attend any meeting of the Council and to take part in the consideration and discussion of any matter before a meeting other than a matter concerning the performance of the CEO, but cannot vote on any matter. 16. Remuneration and allowances The members of the Council, or of a committee of the Council established under section 14(4)(f), are entitled to be paid out of the funds of the Council any remuneration and allowances determined by the Minister on the recommendation of the Public Sector Commissioner. Division 2 — Functions and powers of Council 17. Functions of the Council The Council has the following functions — (a) to assess and to document places of cultural heritage significance in Western Australia; (b) to advise the Minister on heritage matters and, in particular, on the identification, conservation and protection of places that are, or may be, of cultural heritage significance; (c) to provide guidance to public authorities on contemporary best practice for the identification and management of heritage assets; (d) to administer the register; (e) in accordance with Part 6, to provide or facilitate the provision of financial, technical and professional assistance and other conservation incentives; (f) if development or other proposals may affect a registered place, to provide advice to decision‑making authorities on ensuring that the place's cultural heritage significance is preserved; (g) to endeavour to prevent the destruction, damage, deterioration or injudicious treatment of places that are, or may be, of cultural heritage significance; (h) to undertake or provide for the conservation of places that are, or may be, of cultural heritage significance; (i) to acquire, own, conserve, arrange for the conservation of, lease, manage and dispose of places that are, or may be, of cultural heritage significance; (j) to advise and assist local governments in identifying and conserving places that are, or may be, of cultural heritage significance; (k) to promote public awareness and knowledge in relation to Western Australia's cultural heritage; (l) to provide and to encourage education and training in relation to Western Australia's cultural heritage; (m) to arrange and to conduct research and investigations in relation to Western Australia's cultural heritage; (n) to promote and assist in the management and maintenance of registered places; (o) to enter into agreements under section 90(1) and implement those agreements when in operation; (p) to advise and assist the Minister and others in relation to heritage agreements; (q) to perform any other functions required of it by the Minister under, or in furtherance of the objectives of, this Act; (r) to do anything else that it is required or authorised to do under this Act or any other written law. 18. Powers of Council (1) The Council has all the powers it needs to perform its functions. (2) Without limiting subsection (1), the Council may for the purpose of performing a function — (a) acquire, hold, manage and dispose of real and personal property; and (b) grant a lease or licence in respect of property that is owned by the Council; and (c) carry out, or cause to be carried out, the conservation and development of a place; and (d) enter into arrangements for sponsorship; and (e) use its expertise and resources to provide consultancy, management, advisory or other services for profit or otherwise. (3) The Council may, in accordance with the regulations — (a) impose and recover fees and charges in connection with the performance of its functions; and (b) recover prescribed costs and expenses arising from the performance of its functions. 19. Delegation by Council (1) The Council may, by resolution of which notice has been published in the Gazette under subsection (2), delegate to a person any function of the Council under another provision of this Act, or under any other written law. (2) A notice of a delegation under this section published in the Gazette must set out the identity of the delegate and the scope of the delegation. (3) A person to whom a function is delegated under this section cannot delegate that function. (4) The delegate must perform or discharge functions delegated under this section in accordance with the terms of the delegation. (5) A person performing a function that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (6) Nothing in this section limits the ability of the Council to perform a function through an officer or agent. Division 3 — Relationship with other public authorities 20. Public authorities must assist Council (1) A public authority must, and by this section is authorised to, give the Council prescribed assistance in carrying out the functions of the Council if it is reasonably practicable for the public authority to give the assistance. (2) A public authority must comply with any reasonable request for information made by the Council. (3) Nothing in subsection (1) or (2) exempts the Council from the payment of fees or charges payable under any Act. (4) If the Council is of the opinion that a public authority has not complied with subsection (1) or (2) the Council may request the Minister to notify in writing the Minister responsible for the administration of the public authority. (5) A Minister notified under subsection (4) may direct the public authority to provide the assistance or information to the Council. (6) A direction under subsection (5) may require the public authority to make the services of any person employed or engaged by the public authority available to provide the assistance or information. Division 4 — Relationship between Minister and Council 21. Administration of this Act It is a function of the Council to advise the Minister on the administration of this Act. 22. Minister's directions (1) The Minister may give the Council written directions of a general character with respect to its functions. (2) Except as provided in subsection (3), the Council must comply with a direction given under subsection (1). (3) The Council is not required to comply with a direction given under subsection (1) with respect to its functions of — (a) evaluating the cultural heritage significance of a place; and (b) giving advice to the Minister or to a decision‑making authority with respect to a place. (4) The text of a direction given under subsection (1) must be included in the annual report submitted by the accountable authority of the Council under the Financial Management Act 2006 Part 5. 23. Minister to have access to information (1) In this section — document includes any tape, disk or other device or medium on which information is recorded or stored; information means information specified, or of a description specified, by the Minister that relates to the functions of the Council. (2) The Minister is entitled — (a) to have information in the possession of the Council; and (b) if the information is in or on a document, to have access to, and to make and retain copies of, that document. (3) For the purposes of subsection (2) the Minister may — (a) request the Council to provide information to the Minister; and (b) request the Council to give the Minister access to information; and (c) for the purposes of paragraphs (a) and (b) make use of the staff of the Council to obtain the information and provide it to the Minister. (4) The Council must comply with requests under subsection (3)(a) and (b) and make its staff and facilities available to the Minister for the purposes of subsection (3)(c). 24. Delegation by Minister (1) The Minister may, by instrument in writing of which notice has been published in the Gazette under subsection (2), delegate to a person any function of the Minister under another provision of this Act other than — (a) this power of delegation; and (b) functions under sections 14, 22 and 23; and (c) functions under Part 3; and (d) functions under Part 4; and (e) functions under Part 6 Division 3; and (f) functions under Part 7; and (g) functions under Part 10. (2) A notice of a delegation under this section published in the Gazette must set out the identity of the delegate and the scope of the delegation. (3) A person to whom a function is delegated under this section cannot delegate that function. (4) The delegate must perform or discharge functions delegated under this section in accordance with the terms of the delegation. (5) A person performing a function that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (6) Nothing in this section limits the ability of the Minister to perform a function through an officer or agent. Division 5 — Staff 25. CEO to provide assistance, staff and facilities (1) The CEO must provide the Council with any staff and facilities of the Department, and any other assistance, the Council may reasonably require to perform its functions. (2) The CEO may engage persons as wages staff for the purposes of this Act. (3) Subject to any relevant award or industrial agreement, the terms and conditions of engagement under subsection (2) are to be the terms and conditions that the CEO, with the approval of the Public Sector Commissioner, determines. (4) A person engaged under subsection (2) is not a person appointed under the Public Sector Management Act 1994 Part 3. (5) This section does not affect the power that the Public Sector Management Act 1994 section 100 gives the CEO to engage a person under a contract for services or appoint a person on a casual employment basis for the purposes of this Act. 26. Use of other government staff and facilities (1) The Council may by arrangement with the relevant employing authority make use, either full‑time or part‑time, of the services of any officer or employee — (a) in the Public Service; or (b) in a State agency; or (c) otherwise in the service of the State. (2) The Council may, by arrangement with the employing authority of a department of the Public Service or a State agency, make use of any facilities of the department or agency. (3) An arrangement under subsection (1) or (2) must be made on terms agreed to by the parties. Division 6 — Finance 27. Financial Management Act 2006 and Auditor General Act 2006 apply The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Council and its operations. 28. Funds of Council The funds available to the Council for the purposes of this Act are — (a) money appropriated by Parliament; and (b) money received by the Council in the performance of its functions; and (c) money borrowed by the Council under section 30; and (d) other money lawfully received by, made available to, or payable to, the Council. 29. Heritage Fund (1) An account called the Heritage Fund is established as an agency special purpose account under the Financial Management Act 2006 section 16. (2) The funds mentioned in section 28 must be credited to the Heritage Fund. (3) Moneys standing to the credit of the Heritage Fund may be applied in payment of — (a) the remuneration and allowances payable under section 16; and (b) interest on, other fees and charges in respect of, and repayment of moneys borrowed by, the Council under section 30; and (c) costs and expenses lawfully incurred by the Council in the performance of its functions. 30. Borrowing (1) The Council may with the prior approval in writing of the Treasurer and on terms and conditions approved by the Treasurer, borrow moneys for the purpose of performing its functions. (2) Any moneys borrowed by the Council under subsection (1) may be raised — (a) as one loan or as several loans; and (b) in any manner the Treasurer approves. 31. Guarantee by Treasurer (1) The Treasurer may, in the name and on behalf of the State, guarantee the payment of any moneys payable by the Council in respect of moneys borrowed by it under section 30. (2) A guarantee must be in a form, and contain terms and conditions, determined by the Treasurer. (3) Before a guarantee is given, the Council must — (a) give the Treasurer any security the Treasurer requires; and (b) execute all instruments that are necessary for the purpose. (4) The Treasurer may fix charges to be paid by the Council to the credit of the Consolidated Account in respect of a guarantee given under this section. 32. Effect of guarantee (1) The due payment of moneys under a guarantee given under section 31 must be — (a) made by the Treasurer; and (b) charged to, and paid out of, the Consolidated Account, which this subsection appropriates accordingly. (2) The Treasurer must cause to be credited to the Consolidated Account any amounts received or recovered from the Council or otherwise in respect of any payment made by the Treasurer under a guarantee given under section 31. 33. Notice of financial difficulty (1) The Council must notify the Minister if it forms the opinion that it is unable to, or will be unlikely to be able to, satisfy any of its financial obligations from the financial resources available to it or likely to be available to it at the time the financial obligation is due. (2) The notice must be in writing and give reasons for the Council's opinion. (3) Within 7 days after receipt of the notice, the Minister must — (a) confer with the Treasurer and the Council for the purpose of determining what action is required to ensure that the Council is able to satisfy the relevant financial obligation when it is due; and (b) initiate such action as is required to ensure that the Council is able to satisfy the relevant financial obligation when it is due. (4) For the purposes of subsection (3), the Minister may give the Council a direction requiring the Council to cease or limit the performance of any function. (5) The Council must comply with a direction given under subsection (4). (6) The text of a direction given under subsection (4) must be included in the annual report submitted by the accountable authority of the Council under the Financial Management Act 2006 Part 5. 34. Exemption from rates No rate may be charged or levied under the Local Government Act 1995 Part 6 on or in respect of any land for the time being vested in, owned by, leased to or placed under the control of the Council and used or preserved by, or by arrangement with, the Council. Part 3 — The State Register of Heritage Places Division 1 — The register 35. The register (1) The Council must establish and maintain a register called the State Register of Heritage Places. (2) It is the objective of the Council and the Minister that the register is a comprehensive register of places of cultural heritage significance that make an important contribution to understanding the heritage of Western Australia. (3) The register must include places that the Minister, on the advice of the Council, has directed to be entered in the register in accordance with Division 2. (4) The Council must make the register available for public inspection in accordance with the regulations. (5) The Council must make information regarding amendments to, and removals of, entries in the register available for public inspection in accordance with the regulations. 36. Form and content of register (1) The Council must keep the register in the prescribed manner. (2) An entry in the register in relation to a place must contain — (a) a land description of the place; and (b) the current statement of cultural heritage significance adopted in relation to the place; and (c) any other prescribed particulars. Division 2 — Entry in the register Subdivision 1 — Registration conditions 37. Conditions for registration (1) It is a condition for the entry of a place in the register that the Council has determined in accordance with section 38 that the place has cultural heritage significance. (2) Subject to subsection (3), it is a condition for the entry of a place in the register that the place not include land that within the preceding 5 years — (a) was removed from a registered place by an amendment made under section 46; or (b) was included in an entry that has been removed from the register under section 51. (3) The Council may apply to the Supreme Court for an order that the condition mentioned in subsection (2) is not to apply to a place specified in the order. 38. Factors relevant to cultural heritage significance (1) In determining whether a place has cultural heritage significance the Council must have regard to the following — (a) its importance in demonstrating the evolution or pattern of Western Australia's history; (b) its importance in demonstrating rare, uncommon or endangered aspects of Western Australia's heritage; (c) its potential to yield information that will contribute to an understanding of Western Australia's history; (d) its importance in demonstrating the characteristics of a broader class of places; (e) any strong or special meaning it may have for any group or community because of social, cultural or spiritual associations; (f) its importance in exhibiting particular aesthetic characteristics valued by any group or community; (g) any special association it may have with the life or work of a person, group or organisation of importance in Western Australia's history; (h) its importance in demonstrating a high degree of creative or technical achievement; (i) any other characteristic it may have that in the opinion of the Council is relevant to the assessment of cultural heritage significance. (2) A place may have cultural heritage significance despite lacking physical material that substantially contributes to its cultural heritage significance. Subdivision 2 — Process for entry into register 39. Nomination for entry in the register (1) A person may, in accordance with the regulations, nominate a place for entry in the register. (2) Within the prescribed period after receipt of a nomination, the Council must make a preliminary determination as to whether the nominated place warrants review under section 40(1). (3) The Council must give notice in accordance with section 163 of the preliminary determination and the reasons for it to — (a) each owner of the place; and (b) the person that made the nomination; and (c) each person prescribed for the purposes of this subsection. 40. Review and registration recommendation (1) The Council may review a place nominated under section 39(1), or any other place that the Council is considering for recommendation for entry in the register, by — (a) determining under section 38 whether the place has cultural heritage significance; and (b) consulting each owner of the place, and undertaking public consultation, in accordance with the regulations, in relation to the entry of the place in the register and the content of a draft statement of cultural heritage significance for the place; and (c) if the Council thinks it necessary and appropriate, making an application under section 37(3). (2) When the Council has completed its review under subsection (1) it may recommend to the Minister that the place be entered in the register. (3) If the Council recommends to the Minister that a place be entered in the register, it must — (a) advise the Minister on the cultural heritage significance of the place and on any submissions received in the course of consultation under subsection (1)(b); and (b) prepare and provide to the Minister a draft register entry (including a proposed statement of cultural heritage significance) in relation to the place. (4) The Council must publish, in accordance with the regulations, an advertisement in relation to a recommendation made under subsection (2). (5) The Council must not include in the advertisement information regarding any person consulted, or any submission received, in the course of public consultation without the consent of the person consulted or the person making the submission. 41. Direction by Minister (1) If the Council recommends under section 40(2) that a place be entered in the register the Minister must, within the prescribed period — (a) direct the Council to enter the place in the register; or (b) direct the Council not to enter the place in the register and state in writing the reasons for the direction. (2) In giving the direction the Minister must have regard to — (a) the recommendation and advice of the Council under section 40; and (b) any other matter that the Minister considers relevant. (3) The Council must — (a) give notice in accordance with section 163 of the direction and any statement of reasons to — (i) each owner of the place; and (ii) each person prescribed for the purposes of this subsection; and (b) publish, as soon as practicable, in accordance with the regulations, an advertisement in relation to the direction and any statement of reasons. 42. Entry in register (1) As soon as practicable after receiving a direction under section 41(1)(a) in relation to a place, the Council must make an entry in the register in relation to the place in accordance with section 36(2). (2) The Council must — (a) publish in the Gazette a notice in relation to the entry in the register setting out a land description of the place and any other prescribed particulars; and (b) give notice in accordance with section 163 of the entry in the register to — (i) each owner of the place; and (ii) each person prescribed for the purposes of this subsection; and (c) give statutory notification of the entry in the register; and (d) notify the Valuer‑General of the entry in the register. (3) The Council may publish, in accordance with the regulations, an advertisement in relation to the entry in the register. Division 3 — Amendment of register entries 43. Request for amendment of land description in register entry (1) An owner of land included in a registered place, or if there is more than one owner of that land each of those owners acting jointly, may, in accordance with the regulations, request the Council to amend the land description with respect to that land in an entry in the register relating to the place. (2) Within the prescribed period after receipt of a request under subsection (1), the Council must make a determination as to whether the requested amendment warrants consideration in detail. (3) The Council must give notice in accordance with section 163 of its determination under subsection (2) and the reasons for the determination to — (a) each owner of the land; and (b) each person prescribed for the purposes of this subsection. 44. Detailed consideration of amendment to land description (1) If the Council determines under section 43 or otherwise that an amendment to the land description in an entry in the register warrants consideration in detail it may — (a) review the cultural heritage significance of the place; and (b) consult each owner of the place, and undertake public consultation in relation to the proposed amendment, in accordance with the regulations; and (c) consider whether the requested amendment is desirable, having regard to — (i) the cultural heritage significance of the place; and (ii) the way in which the amendment would affect the cultural heritage significance of the place; and (iii) any submissions received in the course of consultation under paragraph (b); and (d) if the Council thinks it necessary and appropriate, make an application under section 37(3). (2) When the Council has completed consideration in detail under subsection (1), it may recommend to the Minister that the amendment be made. (3) If the Council recommends to the Minister that an amendment to the land description in an entry in the register be made, it must — (a) advise the Minister on — (i) the cultural heritage significance of the place; and (ii) any submissions received in the course of consultation under subsection (1)(b); and (iii) its reasons for recommending the amendment be made; and (b) if the amendment was initiated by a request under section 43(1), recommend any conditions that the owner of the land should be required to satisfy before the amendment is made; and (c) prepare and provide to the Minister the amendment that it recommends be made. (4) The Council must publish, in accordance with the regulations, an advertisement in relation to a recommendation made under subsection (2). (5) The Council must not include in the advertisement information regarding any person consulted, or any submission received, in the course of public consultation without the consent of the person consulted or the person making the submission. 45. Land description amendment direction by Minister (1) If the Council recommends to the Minister under section 44(2) that an amendment to the land description in an entry in the register be made, the Minister must, within the prescribed period — (a) direct the Council to make the proposed amendment; or (b) direct the Council not to make the proposed amendment and state in writing the reasons for the direction. (2) In giving the direction the Minister must have regard to the advice and recommendations of the Council under section 44(3). (3) A direction under subsection (1)(a) may, if the amendment was initiated by a request under section 43(1), be conditional upon the owner of the land — (a) discharging any costs associated with making the amendment; and (b) satisfying any other conditions specified by the Minister. (4) The Council must — (a) give notice in accordance with section 163 of a direction under subsection (1) and any statement of reasons to — (i) each owner of the land; and (ii) each person prescribed for the purposes of this subsection; and (b) publish, as soon as practicable, in accordance with the regulations, an advertisement in relation to the direction and any statement of reasons. 46. Amending land description in register entry (1) The Council must amend a land description in an entry in the register as soon as practicable after — (a) it receives a direction under section 45(1)(a) to do so; and (b) any conditions imposed under section 45(3) in relation to making the amendment are satisfied. (2) The Council must — (a) publish in the Gazette a notice setting out the amended land description of the place and any other prescribed particulars; and (b) give notice in accordance with section 163 of the amendment to — (i) each owner of the land; and (ii) each person prescribed for the purposes of this subsection; and (c) give statutory notification of the amendment; and (d) give the Valuer‑General notification of the amendment. (3) The Council may publish, in accordance with the regulations, an advertisement in relation to the amendment. 47. Other amendments (1) The Council must make amendments to the statement of cultural heritage significance in an entry to the register in accordance with regulations made for the purposes of section 53(1). (2) If regulations prescribe other particulars to be included in an entry in the register, the regulations must prescribe procedures for the amendment of those particulars. Division 4 — Removal of entries from register 48. Request for removal (1) The owner of a registered place or, if there is more than one owner the owners acting jointly, may, in accordance with the regulations, request the Council to remove the entry in the register relating to the place. (2) Within the prescribed period after receipt of a request under subsection (1), the Council must make a determination as to whether the requested removal warrants consideration in detail. (3) The Council must give notice in accordance with section 163 of its determination under subsection (2) and the reasons for the determination to each owner of the registered place. (4) If the Council determines that the requested removal does not warrant consideration in detail, the owner of the registered place or, if more than one owner, the owners acting jointly, may, in accordance with the regulations, request the Council to refer the matter to the Minister, who must, within the prescribed period — (a) confirm the Council's determination; or (b) direct the Council to give consideration in detail to the requested removal under section 49. 49. Detailed consideration of removal (1) If the Minister directs the Council under section 48(4)(b) to give consideration in detail to the removal of an entry in the register the Council must — (a) review the cultural heritage significance of the registered place; and (b) undertake public consultation in accordance with the regulations in relation to the removal; and (c) consider whether the removal is desirable, having regard to — (i) the cultural heritage significance of the registered place; and (ii) the way in which the removal would affect the heritage significance of the registered place; and (iii) any submissions received in the course of consultation under paragraph (b) and subsection (3)(b). (2) The Council may act under subsection (1) in relation to an entry in the register without the direction of the Minister if the Council considers it appropriate to do so. (3) If the Council acts under subsection (1) in relation to an entry in the register without the direction of the Minister it must — (a) notify the Minister that it is so acting; and (b) consult each owner of the registered place in accordance with the regulations. (4) When the Council has completed consideration in detail under subsection (1) after direction of the Minister, it must recommend to the Minister — (a) that the entry be removed; or (b) that the entry not be removed. (5) When the Council has completed consideration in detail under subsection (1) without direction of the Minister, it may — (a) decide to take no further action and notify the Minister accordingly; or (b) recommend to the Minister that the entry be removed. (6) When the Council makes a recommendation under subsection (4) or (5)(b) it must advise the Minister on — (a) the cultural heritage significance of the registered place; and (b) any submissions received in the course of consultation under subsections (1)(b) and (3)(b); and (c) the Council's reasons for its recommendation; and (d) if the Council's recommendation for removal of the entry was initiated by a request under section 48(1), any conditions that the owner of the registered place should be required to satisfy before the entry is removed. (7) The Council must publish, in accordance with the regulations, an advertisement in relation to a recommendation made under subsection (4) or (5)(b). (8) The Council must not include in the advertisement information regarding any person consulted, or any submission received, in the course of public consultation without the consent of the person consulted or the person making the submission. 50. Removal direction by Minister (1) Within the prescribed period after the Council makes a recommendation under section 49(4) or 49(5)(b) the Minister must — (a) direct the Council to remove the entry; or (b) direct the Council not to remove the entry. (2) In giving the direction the Minister must have regard to the advice and recommendation of the Council under section 49. (3) The Minister must state the reasons for the direction. (4) A direction under subsection (1)(a) to remove an entry may, if the removal was initiated by a request under section 48(1), be conditional upon the owner of the registered place — (a) discharging any costs associated with the removal; and (b) satisfying any other conditions specified by the Minister. (5) A direction under subsection (1)(a) does not take effect until it has been approved by a resolution of each House of Parliament. (6) The Council must — (a) give notice in accordance with section 163 of a direction under subsection (1) and the statement of reasons to — (i) each owner of the registered place; and (ii) each person prescribed for the purposes of this subsection; and (b) publish, as soon as practicable, in accordance with the regulations, an advertisement in relation to the direction and the statement of reasons. 51. Removing entry from register (1) The Council must remove an entry from the register if directed to do so under section 50(1)(a) as soon as practicable after — (a) the satisfaction of any conditions imposed under section 50(4); and (b) the approval of both Houses of Parliament under section 50(5). (2) The Council must — (a) publish in the Gazette a notice of the removal, setting out a land description of the place to which the entry related and any other prescribed particulars; and (b) give notice in accordance with section 163 of the removal to — (i) each owner of the place to which the entry related; and (ii) each person prescribed for the purposes of this subsection; and (c) give statutory notification of the removal; and (d) notify the Valuer‑General of the removal. (3) The Council may publish, in accordance with the regulations, an advertisement in relation to the removal. Division 5 — Statements of cultural heritage significance 52. Adoption of statement of cultural heritage significance (1) The Council must adopt a statement of cultural heritage significance in relation to each registered place. (2) A statement of cultural heritage significance must include the prescribed matters. 53. Updating and amending statements of cultural heritage significance (1) The Council must review and update the statement of cultural heritage significance for a registered place in accordance with the regulations. (2) The Council may update a statement of cultural heritage significance, without prior notice to or consultation with the owners of the registered place concerned, to — (a) correct or update a name, title, designation or other description; or (b) correct a clerical error or an error because of an accidental omission; or (c) correct information that is factually erroneous; or (d) make any other change to the statement that, in the opinion of the Council, would not be materially relevant to the conservation or management of the place. (3) The Council may amend a statement of cultural heritage significance in any way not mentioned in subsection (2) — (a) if — (i) each owner of the registered place concerned is notified under section 163 of the proposed amendment and, in accordance with the regulations, has an opportunity to make submissions in relation to it; and (ii) no owner objects to the proposed amendment; or (b) if — (i) each owner of the registered place concerned is notified under section 163 of the proposed amendment and, in accordance with the regulations, has an opportunity to make submissions in relation to it; and (ii) the Council undertakes public consultation in relation to the proposed amendment in accordance with the regulations; and (iii) the Minister directs that the proposed amendment be made. 54. Notification of adoption, update or amendment The Council must — (a) give notice in accordance with section 163 of the adoption, updating or amendment of a statement of cultural heritage significance under this Division to — (i) each owner of the registered place concerned; and (ii) each person prescribed for the purposes of this subsection; and (b) publish, in accordance with the regulations, an advertisement in relation to the adoption, updating or amendment of the statement of cultural heritage significance. Part 4 — Protection orders and repair orders Division 1 — Protection orders 55. Consent order The Minister may make an order under this section in relation to a place (a consent order) if — (a) the Minister considers that — (i) it is necessary or desirable to provide special protection in respect of a place; and (ii) the likelihood of damage to the place means that a specific prohibition is necessary; and (b) each owner of the place has given prior consent in writing as to the terms of the order. 56. Stop work order (1) The Minister may make an order under this section in relation to a place (a stop work order) if the Minister considers that — (a) it is necessary or desirable to provide special protection in respect of a place; and (b) the likelihood of imminent damage to the place means that a specific prohibition is urgently necessary. (2) Subject to subsection (3), the Minister may make the stop work order without the prior consent in writing of each owner of the place as to the terms of the order. (3) Except with the authorisation of the Tribunal under subsection (4), the Minister must not make a stop work order in relation to a place if — (a) a stop work order relating to the place in respect of the same or a similar matter has been revoked or has expired within the preceding 12 months; or (b) the place includes land that within the preceding 5 years — (i) was removed from a registered place by an amendment made under section 46; or (ii) was included in an entry that has been removed from the register under section 51. (4) The Tribunal may make an order authorising the making of a stop work order that would otherwise be prohibited under subsection (3). 57. Continuing protection order (1) The Minister may make an order under this section in relation to a place (a continuing protection order) if — (a) the Minister considers that it is necessary or desirable to provide special protection in relation to the place; and (b) the requirements of subsection (2) have been satisfied. (2) The Minister must not make a continuing protection order unless the Council has — (a) given notice in accordance with section 163 to each owner of land that is likely to be directly affected by the proposed continuing protection order, explaining the nature of the special protection proposed and the reason for it; and (b) consulted each owner of land that is likely to be directly affected by the proposed continuing protection order, and undertaken public consultation in relation to the proposed continuing protection order, in accordance with the regulations; and (c) considered, and advised the Minister on, submissions received in the course of consultation under paragraph (b); and (d) recommended to the Minister that the proposed continuing protection order be made; and (e) published any advertisement required by the regulations. (3) The Minister must state the reasons for making, or determining not to make, a protection order. (4) If, after the Council has recommended to the Minister that a continuing protection order be made, the Minister determines not to make the order, the Council must publish, as soon as practicable, in accordance with the regulations, an advertisement in relation to the Minister's determination and any statement of reasons. 58. Content of protection order (1) A protection order must contain a land description of the place to which the order relates. (2) A protection order may contain prohibitions relating to any or all of the following — (a) the entry of persons on to the place to which the order relates, other than entry by an owner or occupier; (b) the bringing of vehicles, machinery, equipment, materials or substances on to the place; (c) any activity of a kind that, in the opinion of the Minister, is likely to affect detrimentally — (i) the cultural heritage significance of the place; or (ii) the capacity to effect conservation of its cultural heritage significance; (d) the demolition, damage or alteration of the place or any part of the place; (e) anything that, in the opinion of the Minister, is likely to cause disturbance to the place; (f) any development affecting the place or other matter in respect of which the Minister is satisfied a prohibition is needed to further the objectives of this Act. (3) A prohibition contained in a protection order may be expressed to be absolute or conditional or subject to the exercise of discretion by a person specified in the order, and effect must be given to the prohibition in accordance with the tenor of the order. (4) Regulations may prescribe activities that may be carried out despite the terms of a protection order or of a particular class of protection orders and the protection order or class of protection orders are taken not to apply to those activities. 59. Notification of protection order If a protection order is made, the Council — (a) must serve a copy of the order, where practicable, on each owner and occupier of the place to which the order relates; and (b) must give statutory notification of the making of the order; and (c) except in the case of a stop work order, must publish the order in the Gazette; and (d) may publish, in accordance with the regulations, an advertisement containing a summary of the terms of the order and setting out a sufficient description to identify the place to which the order relates; and (e) may erect signs on or near the place to which the order relates for the purpose of informing the public of the making of the order and of the matters the order prohibits. 60. Coming into effect of protection order (1) A consent order or a continuing protection order takes effect on the day after the day on which it is published in the Gazette. (2) A stop work order takes effect when whichever of the following happens first— (a) a copy of the order is affixed in a prominent position on the place to which the order relates; (b) a copy of the order is served on a person carrying out, or causing to be carried out, any works or other activity at the place to which the order