Web viewHeritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy. 2. Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth

Heritage Act 1995 (Vic) andHistoric Shipwrecks Act 1976 (Cth) Compliance Strategy

Heritage Environment Performance - November 2015

© The State of Victoria Department of Environment, Land, Water and Planning 2015

ISBN 978-1-74146-834-2 (Print)

ISBN 978-1-74146-835-9 (pdf)

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Document controlVersion 1.0

Last updated 9 November 2015

Next review date 1 October 2016

Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy1

Contents

Introduction 3

PART I – REGULATORY CONTEXT 4

Compliance responsibilities 4ELP compliance philosophy 4Regulatory objectives 4Regulatory principles 5

PART II – HOW TO APPLY THE STRATEGY 6

Strategic compliance priorities 6Encouraging compliance 7Monitoring compliance 7Responding to non-compliance 7Enforcement decision-making framework 13

PART III – CLOSED LOOP COMPLIANCE 14

Governance and reporting frameworks 14Compliance Performance Management System 14

PART IV – HOW THE STRATEGY WAS DEVELOPED 17

Static risk assessment 17Dynamic risk assessment 23………………………………………………………………………………………………………………………………………………………………….SUMMARY 23

TablesTable 1: Regulatory principles 7

Table 2: Static risk ratings for the Planning and Environment Act 1987 and associated regulation 9

Table 3: Response options 10

Table 4: Performance Management Indicators 13

Table 5: Definitions of levels of consequence 15

Table 6: Definition of levels of likelihood 16

Table 7: Static risk matrix 17

Table 8A: Table 8A: Results of static risk assessment under the Heritage Act 1995 and Heritage (Historic Shipwreck) Regulations 2007 19

Table 8B: Results of static risk assessment under the Historic Shipwrecks Act 1975 (Cth) and the Historic Shipwreck Regulations 1976 (Cth) 22


Introduction

In 2012, the Victorian Auditor-General conducted an audit to examine the effectiveness and efficiency of the Department of Primary Industries (DEPI) and Department of Sustainability and Environment’s (DSE) compliance activities under environment, natural resources and primary industries legislation. In 2014 these departments came together to form the Department of Environment, Land, Water and Planning (DELWP). Heritage Victoria now sits within DELWP and is working to ensure it addresses issues raised by the Auditor-General.

The Auditor-General recommended that the Department of Sustainability and Environment: develop and implement regional compliance plans that are risk-based, soundly targeted, consistent

and aligned with corporate priorities and the statewide compliance strategy; develop an achievable, detailed plan for delivering its statewide compliance strategy, and

implement it.1

Responsibility for administering the compliance and enforcement provisions of the Heritage Act 1995 (Vic) and the Historic Shipwrecks Act 1976 (Cth) as they relate to Victoria, now sits with officers of DELWP under delegated authority from the Executive Director employed under part 2 of the Heritage Act 1995 and the Governor General pursuant to s19 of the Historic Shipwrecks Act 1976 (Cth). This document outlines DELWP’s risk-based approach for managing its compliance responsibilities under the Heritage Act 1995, the Historic Shipwrecks Act 1976 (Cth) and associated regulations. It has been prepared to be used as a reference by other business units with compliance responsibilities, and to inform the public. To promote transparency and encourage compliance without compromising the objectives of the strategy, the strategy will be released to the public.

1 Victorian Auditor-General’s Report, Effectiveness of Compliance Activities: DPI and DSE, 2012, recommendation 4, page xii.


PART I – REGULATORY CONTEXT

DELWP regulators use a range of compliance activities, sometimes in combination, to encourage compliance and deter non-compliance. Selecting the appropriate activities to achieve compliance is based on a risk assessment, with an appropriate and proportional approach to intervention. Consideration is given to the cost and benefit of compliance activities to assist in determining the most appropriate response. In particular, encouraging voluntary compliance is very valuable and alleviates the burden of monitoring compliance and taking action to respond to non-compliance.

Compliance activities can be categorised as:

Encouraging compliance – using tools such as education, providing information and support, incentives for compliance and controls such as a consent or permit issued with conditions.

Monitoring compliance – using tools such as regular, random and/or targeted inspections, audits, covert and overt patrols, information and intelligence gathering and assessment.

Responding to non-compliance – using tools such as investigation of suspected breaches of the law and enforcing the law, official warnings, infringement notices, notices to show cause, or formal prosecution.

Compliance responsibilitiesThe Auditor-General’s report emphasised that regulators should “assess the risks that affect their ability to effectively administer their legislation, and the regulated community’s ability or willingness to comply. They should be targeting their resources and activities at high or unmanaged risks.”.2

Compliance philosophyTo achieve the regulatory objectives of the Heritage Act 1995 (Vic) and the Historic Shipwrecks Act 1976 (Cth), voluntary compliance is encouraged and supported. Compliance is monitored and non-compliance will be addressed through regulatory responses that are proportionate to the degree of non-compliance and the risk it poses.

Resources are prioritised to manage unacceptable or poorly managed risks. Actions taken in response to non-compliance are monitored and evaluated to assess their effectiveness and to inform continuous improvement.

Where appropriate, input from stakeholders is sought to ensure they have the opportunity to influence improvements to how regulation is designed, communicated and enforced.

Regulatory objectivesThe Heritage Act 1995 and the Historic Shipwrecks Act 1976 (Cth) regulate the conduct of persons engaged in certain activities concerning the historic environment. The regulatory objectives of the Heritage Act 1995 are:

to ensure that places and objects of cultural heritage significance are protected and conserved by regulating activities that may impact on the significance of those places and objects.

This objective has been developed from the stated purpose of the Heritage Act 1995 which includes the provision for protection and conservation of places and objects of cultural heritage significance.

The Historic Shipwrecks Act 1976 (Cth) does not state its purpose nor provide any objectives, however the Act provides for various offences in relation to Historic Shipwrecks which align with the purpose of the Heritage Act 1995.

Regulatory principles2 Victorian Auditor-General’s Report, Effectiveness of Compliance Activities: DPI and DSE, 2012, page ix.


DELWP will treat all members of the community professionally and with respect in the delivery of its risk-based regulatory services.

Compliance activity under the Heritage Act 1995 (Vic) and the Historic Shipwrecks Act 1976 (Cth) will be guided by the following principles to ensure that the stakeholder experience is consistent and that regulatory activities are efficient and effective:

Table 1: Regulatory principles

Helpful

DELWP will provide industry and the community with appropriate and timely information, advice and assistance to help them understand and meet their compliance obligations

Respectful DELWP’s compliance actions will be professionally and respectfully conducted at all times

Proportionate DELWP’s compliance actions will be in proportion to the problem they are intended to address, based on an assessment of risk, impact and culpability

Predictable DELWP will apply its regulatory approach predictably for regulated parties in equivalent circumstances

Clear DELWP will clearly explain its compliance decisions and such decisions will be subject to public scrutiny

Transparent DELWP will be open about the way in which it regulates industry and the community

Targeted Compliance activity will be targeted to areas of priority; resources and activities will be directed to unacceptable or poorly managed high risks and lower risks will be addressed through less resource-intensive or broader-reach activities—such as advocacy and education approaches to promote voluntary compliance with legislation

Effective Compliance activities will focus on achieving the intended policy and legislative objectives. Activities will be timely with investigation processes and the resolution of enforcement matters will be conducted as efficiently as possible

Accountable DELWP will report regularly on its compliance outcome performance.

Adaptable DELWP will regularly review and, if required, update its compliance approaches.


PART II – HOW TO APPLY THE STRATEGY

This Part sets out DELWP’s strategic compliance priorities and its approach to encouraging and monitoring compliance. It also explains how DELWP will respond to non-compliance and describes DELWP’s enforcement decision-making framework.

Strategic compliance prioritiesThe strategic priorities are to provide for the protection and conservation of places and objects of cultural heritage significance by regulating the following activities:

Removing, demolishing, damaging, despoiling, developing or altering any part of a registered heritage place or object

Non-compliance with conditions of a permit issued

Taking, destroying, damaging, removing, disturbing, or otherwise interfering with an historic shipwreck or relic

Buying, bartering or exchanging an historic shipwreck or relic

Possessing an historic shipwreck or relic

Disposing of an historic shipwreck or relic

Removing an historic shipwreck or relic from Victoria

Providing notice of the discovery of the remains of a ship or an article associated with a ship

Defacing, damaging or otherwise interfering with an archaeological relic or site

Uncovering, exposing an archaeological relic

Disturbing or excavating land for the purpose of uncovering or exposing an archaeological relic

Non-compliance with terms and conditions of a consent

Buying or selling an archaeological relic

Possessing an archaeological relic for sale

Whilst all offences in this strategy are prioritised based on the regulatory objectives, the four below have been selected as the primary focus of compliance and enforcement activities, due to limited resources available and the greatest perceived threat.

Remove, demolish, damage, despoil, develop or alter any part of a heritage place or object Non-compliance with Permit or Consent issued

Take, destroy, damage, remove, disturb or interfere with an historic shipwreck or relic

Deface, damage or otherwise interfere with an archaeological relic or site

These particular offences have been selected as the highest priority because instances of non-compliance with them was determined to be the highest risk to achieving the stated purposes of the Heritage Act 1995 (Vic) and the Historic Shipwrecks Act 1976 (Cth).

Encouraging complianceHeritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy

6

Wherever possible, DELWP will work in partnership with industry, peak bodies, stakeholder groups and the community to achieve compliance with legislation.

DELWP will encourage voluntary compliance by assisting the regulated community to understand why these controls exist, how to comply, increase its capacity to comply and increase its willingness to comply. Specifically, DELWP will:

Provide clear information on the DELWP web page about what is regulated, why regulation is necessary and how to comply with the regulation.

Provide advice to applicants for permits and consents about the information required to support an application, how Heritage Victoria determines whether to issue an approval, what the approval will authorise and how to comply with the approval.

Monitoring complianceMonitoring compliance helps to:

determine the level of compliance and trends for regulated activities

detect possible breaches of legislation

identify whether, and what type of, compliance action may be required

assess the effectiveness of operations and programmes

identify opportunities for improvement.

DELWP will monitor compliance by:

reviewing information provided by the public or affected individuals

undertaking regular and random inspections, audits and targeted investigations

analysing information reported as part of conditions of permits and consents.

Responding to non-compliance In deciding how to respond to an instance of non-compliance, a compliance officer should undertake the following steps:

1. determine the static risk* rating for the regulatory obligation(s) that may have been breached

2. determine the response option based on the static risk rating and case specific factors

3. decide on an appropriate compliance action from the selected response option.

Step 1 – Determine the static risk rating

To determine the static risk rating, a compliance officer should:

(a) Identify the regulatory obligation(s) that may have been breached (offences that may have been committed)

(b) Determine whether sufficient information and evidence is available to establish that a breach of the relevant regulatory obligation(s) has or is likely to have occurred

(c) Determine the static risk rating (LOW, MODERATE or HIGH) for each regulatory obligation that may have been breached from Table 1 below

(d) Identify the highest static risk rating among the regulatory obligation(s) that may have been breached.

*Static Risk is described in detail on page 17 of this document


Table 2: Static risk ratings for the Heritage Act 1995 and associated regulations

Act/ Regulations

Section/ Regulation

Offence Description Risk rating

Heritage Act 1995 (Vic)

64(1)

(a) remove, demolish,(b) damage, despoil,(c) develop, alter or(d) excavateall or any part of a heritage place without a permit

Extreme

64(2)

(a) Remove or demolish; or(b) Damage or despoil;(c) Altera registered object without a permit

Extreme

74(A)

Failure to comply with any terms and conditions of a permit issued to carry out works or activities

Extreme

110 Remove an article being, or being a part of, a historic shipwreck or relic from Victoria otherwise than in accordance with a permit

Extreme

111(1)

(a) Take, destroy, damage, remove, disturb, otherwise interfere with a historic shipwreck/relic; or(b) Buy, offer to buy, agree to buy, offer or agree to barter or exchange a historic shipwreck/relic; or(c) Possess a historic shipwreck/relic; or(d) Dispose of a shipwreck/relicWithout lawful authority

Extreme

112(1)

Possess on or near a historic shipwreck/relic –(a)salvage/recovery or other equipment that could be readily adapted or used for recovery/salvage purposes of the historic shipwreck/relic.(b) explosives,

Extreme


Act/ Regulations

Section/ Regulation


instruments, other equipment that could be used to damage or interfere with the wreck/relic without lawful authority or reasonable excuse

132(2)

The person in charge of the construction or excavation fails to report the discovery of an archaeological relic

Extreme

134(1)

(a) Buy or sell an archaeological relic without consent(b) Possess an archaeological relic for the purpose of sale without consent

Extreme

159A

An inspector must not give to any other person information gained in the exercise of the powers as an inspector except to the extent necessary under the Act

Extreme

164 Fail to comply with an order for the carrying out of works

Extreme

Historic Shipwrecks Act 1976 (Cth)

13(1)

(i) Destroys or causes damage to a historic shipwreck or relic(ii) Interferes with a historic shipwreck or relic(iii) Causes the disposal of an historic shipwreck or relic(iv) Cause a historic shipwreck or historic relic to be removed from Australian waters or waters above the continental shelf of Australia

Extreme

Heritag

6 Except in accordance with s113 of the Heritage Act

Extre


Act/ Regulations

Section/ Regulation


e (Historic Shipwreck) Regulations 2007 (Vic)

1995 (Vic)(a) enter a protected zone; or(b) moor or use a ship within a protected zone; or(c) trawl, fish or dive or undertake any other underwater activity within a protected zone; or(d) park or use a vehicle within a protected zone; or(e) bring into or use within any protected zone equipment which is constructed or adapted for the purpose of diving, salvage or recovery operations; or(f) bring into or use within any protected zone any explosives, or any equipment, instruments or tools constructed or adapted for the purposes of cultivating, mining, quarrying, dredging or excavating land including land covered by water; or(g) cause a ship or other vehicle carrying any equipment, explosives, instruments or tools specified in paragraphs (e) or (f) to enter or remain within any protected zone

me

Historic Shipwrecks Reg

4 (a) bring into a protected zone equipment constructed or adapted for diving, salvage or recovery operations, or any explosives, instruments or tools the

Extreme


Act/ Regulations

Section/ Regulation


ulations 1978 (Cth)

use of which would be likely to cause damage to, or interference with, a historic shipwreck or a historic relic situated within that protected zone;(b) use within a protected zone any such equipment, explosives, instruments or tools;(c) cause a ship carrying any such equipment, explosives, instruments or tools to enter, or remain within, a protected zone;(d) trawl, or dive or engage in any other underwater activity, within a protected zone;(e) moor or use ships within a protected zone


64(3)

Relocate or disturb the position of a fixed registered object

High

108(2)

(a) Refuse or fail to comply with a notice from the Executive Director relating to location or possession of historic shipwrecks or relics;(b) Knowingly furnish information that is false or misleading in purported compliance with the notice

High

109(4)

Fail to comply with a notice from the Executive Director giving directions relating to custody of historic shipwrecks or relics

High

111 Fail to comply with a notice Hig


Act/ Regulations

Section/ Regulation


(6) issued by the Executive Director requiring a person to deliver a historic shipwreck or relic to him or her

h

113(7)

Contravene a condition of a permit relating to recovery or exploration of historic shipwrecks or relics

High

127(2)

Knowingly uncover/expose ?an archaeological relic or disturb/excavate land for that purpose without a consent

High

128 (a) Failing to safeguard archaeological relics from loss or damage(b) failing to give notice in writing describing the relic and stating where it was found or came from(c) Failing to make relic available for identification or conservation

High

129(5)

Fail to comply with terms and conditions of consent issued in relation to archaeological relics or sites

High

131(1)

(a) Fail to notify Executive Director of intention to undertake archaeological investigation or survey prior to commencement(b) Fail to provide all site documentation collected in the archaeological investigation or survey

High

149(4)

(a) Fail to provide an inspector with name and address(b) Furnish information that is false or misleading

High

151(3)

(a) Fail to comply with a request or requirement

High


Act/ Regulations

Section/ Regulation


lawfully made in relation to archaeological relics and sites(b) Knowingly furnish (under this section) information that is false or misleading

153(2)

Fail to comply with a requirement made by an inspector in the exercise of their power relating to historic shipwrecks and relics

High

157 Hinder or obstruct an inspector or an authorised person in the exercise of a power

High

158 Impersonate an inspector acting in his or her official capacity

High

Historic Shipwrecks Act 1976 (Cth)

11 Fail to comply with notice given to take action required by the Minister relating to the preservation, placement or exhibition of the article where a person has possession, custody or control of an article which is a historic shipwreck or historic shipwreck relic.

High


107(1)

Fail to notify the Executive Director of the location of historic shipwrecks or relic within 7 days of obtaining possession of a historic shipwreck or historic shipwreck article.

Moderate

107(2)

Fail to notify the Executive Director of possession of an article that has become registered as a historic shipwreck or relic within 7 days of it becoming registered

Moderate


Act/ Regulations

Section/ Regulation


107(3)

Fail to notify the Executive Director within 7 days of possession of an article that becomes registered as a historic shipwreck or relic under section 100

Moderate

115 (1) Fail to notify the Executive Director in writing within 7 days of finding of the remains of a ship setting out:• a description of the remains/article• a description of the place it is situated which will enable it to be located(3) Give false or misleading information about a material particular

Moderate

126A

Fail to comply with a permit for the use of an archaeological relic for the purposes of study, conservation and exhibition

Moderate

127(1)

Knowingly or negligently deface/damage/interfere with an archaeological relic or carry out an act likely to endanger a relic except in accordance with a consent

Moderate

132(1)

Fail to report the discovery of an archaeological relic as soon as practicable to the Executive Director

Moderate

Historic Shipwrecks Act 1976

S9 (1)

Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after date of publication of a notice in the Gazette

Moderate


Act/ Regulations

Section/ Regulation


(Cth)

S9(1A)

Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after date on which an article became an article to which the notice applies

Moderate

S9(2)

Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after a notice was published in the Government Gazette with respect to the article

Moderate

S9(3)

Fail to give the prescribed notice to the Minister in relation to possession custody or control of a Dutch historic shipwreck article within 30 days at commencement of the Act

Moderate

S9(4)

Fail to give the prescribed notice to the Minister in relation to possession custody or control of a Dutch historic shipwreck article within 30 days after commencement of the Act

Moderate

S10 Refuse or fail to comply with a notice given by the Minister relating to possession, custody or control of an historic shipwreck article

Moderate

Heritage (His

7 Knowingly move, remove, damage, alter or otherwise interfere with any plinth, mooring, buoy,

Moderate


Act/ Regulations

Section/ Regulation


toric Shipwreck) Regulations 2007 (Vic)

pile or other marker or any notice or sign, or any equipment or material lawfully placed or situated in or within 100 metres of any historic shipwreck or in any protected zone for the purposes of managing the historic shipwreck or protected zone without lawful authority.


124 Destroy, damage, remove or interfere with a notice erected to identify an archaeological place

Low

130(2)

Obstruct, hinder otherwise interfere with the excavation or examination of a registered archaeological place

Low

133(3)

Remove, damage or interfere with a screen, shelter or other structure erected to preserve archaeological relics

Low

Step 2 – Determine the response option

The following set of Dynamic Risk Criteria guides compliance officers in determining the appropriate response option to a particular instance of non-compliance:

Where the static risk is EXTREME, a compliance action from RESPONSE OPTION 3 should generally be used.

An alternate compliance action drawn from RESPONSE OPTION 2 should be used when: the accused has had no charges laid for previous offences under legislation regulated by DELWP

AND the accused is unintentionally non-compliant OR has no control over the non-compliance OR


is very proactive (e.g. attempts to avoid non-compliance, self-reports, addresses non-compliance once detected and attempts to limit future non-compliance).

Where the static risk is HIGH, a compliance action from RESPONSE OPTION 2 should generally be used. An alternate compliance action drawn from RESPONSE OPTION 3 should be used when:

the accused has control over the non-compliance and is recklessly or intentionally non-compliant AND

the accused has had charges laid for previous offences under legislation regulated by DELWP OR within the community there are increasing instances of, or a pattern of non-compliance with this

obligation.

Where the static risk is MODERATE, a compliance action from RESPONSE OPTION 1 should generally be used. An alternate compliance action drawn from RESPONSE OPTION 2 should be used when:


the accused has had charges laid for previous offences under legislation regulated by DELWP OR within the community there are increasing instances of, or a pattern of non-compliance with this

obligation.

Where the static risk is LOW, a compliance action from RESPONSE OPTION 1 should generally be used.A compliance action from RESPONSE OPTION 2 should be used when:


the accused has had charges laid for previous offences under legislation regulated by DELWP AND the accused is not proactive (e.g. did not attempt to avoid non-compliance, did not self-report, did

not address non-compliance once detected and did not attempt to limit future non-compliance).

Step 3 – Decide on appropriate compliance action

Each response option represents a group of compliance actions that may be used to respond to instances of non-compliance. Once a response option has been determined, a compliance officer should select a compliance action from the response option that is most appropriate (proportionate, effective and legislatively available in the circumstances) to the instance of non-compliance.

Table 3: Response Options

RESPONSE OPTION 1

Do nothing DELWP will not respond to this instance of non-compliance.General advice DELWP will respond to direct requests for advice from members of the public and

stakeholder groups.Education campaign

DELWP will undertake an education campaign to inform the public and stakeholder groups about their compliance obligations, why the regulations are in place, the negative impacts of non-compliance and the best practice ways of complying.

Formal guidance DELWP will directly engage with a regulated entity to inform it of its compliance obligations, why the regulations are in place, the negative impacts of non-compliance and the best practice ways of complying.

Request information

DELWP to request a regulated entity to provide information to demonstrate compliance.

Inspection and audit

DELWP to undertake inspections and compliance checks of a regulated entity. Inspections will determine if the regulated entity is complying with their compliance obligations and if not, a greater intervention can be undertaken.

RESPONSE OPTION 2


Request information

DELWP to request a regulated entity to provide information to demonstrate compliance.

Inspection and audit

DELWP to undertake inspections and compliance checks of a regulated entity. Inspections will determine if the regulated entity is complying with their compliance obligations and if not, a greater intervention can be undertaken.

Voluntary corrective action

DELWP to request a regulated entity to undertake voluntary corrective action to address non-compliance. If the regulated entity does not demonstrate that they have taken action, a greater intervention can be undertaken.

Warnings DELWP to issue official written warnings where non-compliance is detected but where both the severity of the offence and culpability of the offender is low such that a greater intervention is not warranted.

Infringement Notices

DELWP to issue infringement notices where non-compliance is detected and a warning is not appropriate but where the severity of the offence is low such that a greater intervention is not warranted.

RESPONSE OPTION 3

Warnings DELWP to issue official written warnings to a regulated entity where non-compliance is detected but where both the severity of the offence and culpability of the offender is low such that a greater intervention is not warranted.

Infringement Notices

DELWP to issue infringement notices where non-compliance is detected and a warning is not appropriate but where the severity of the offence is low such that a greater intervention is not warranted.

Prosecution DELWP may initiate prosecution proceedings when a serious offence has allegedly occurred and it is in the public interest that such activity is challenged. Inspectors must prepare a formal brief of evidence that has been reviewed and tested. A magistrate can decide on a range of penalties up to a set maximum for a person found guilty of an offence.

Once a compliance action has been selected and applied, it will be necessary to monitor whether that response has achieved the desired compliance outcome.

Steps 1 to 3 identified above can be re-applied as necessary when a selected compliance action does not achieve a satisfactory compliance outcome. Alternatively, a lack of co-operation by the non-compliant entity may warrant elevation of the seriousness of any compliance issue, potentially resulting in a higher applicable response option.

Enforcement decision-making frameworkDELWP compliance activities should be risk based and intelligence led. Therefore, when appropriate to do so, prior to a compliance activity taking place, relevant information that is collected should be submitted to the Compliance Support Group (CSG) via an information report. CSG will be able to make recommendations about compliance action.

Generally compliance activities will be undertaken without the requirement to include CSG. Officers are recommended to identify the appropriate compliance action according to the steps in the ‘Responding to non-compliance’ section of the strategy.

For any compliance activity undertaken, there must be a basis for that activity in this strategy, and the regulatory principles must be taken into account.

All planned compliance activities identified must be approved by an appropriate Director.

For unplanned (reactive compliance activities), inspectors must evaluate their response in accordance with this strategy. Prior to undertaking unplanned compliance activities, inspectors should seek supervisor approval.


Information Report forms should be submitted to CSG in instances for suspected breaches relating to heritage artefacts that have taken place. Information Reports are for the purpose of reporting breaches, suspected breaches and any information pertaining to illegal or unauthorised activity relating to legislation administered by DELWP. Information gathered from the submission of Information Reports can be used to determine patterns of behaviour, trends and incidents in relation to illegal or unauthorised activities.

All compliance staff must know and adhere to the DELWP Safety and Wellbeing Risk Management Policy.


PART III – CLOSED LOOP COMPLIANCEGovernance and reporting frameworksDELWP’s Statutory Planning and Heritage, Investigations and Enforcement Unit will conduct an annual review of the strategy and updates will be made in April each year.

In addition, the Investigations and Enforcement Unit will prepare a report to the Executive Director Statutory Planning and Heritage on the strategy’s implementation (including performance indicators) at the end of each financial year.

Compliance Performance Management SystemThe development of the compliance performance indicators is driven by the findings and recommendations of the 2012 Victorian Auditor-General’s (VAGO) audit into the effectiveness and efficiency of DPI and DSE‘s compliance activities3, the 2013 VAGO audit into performance reporting in the environment and sustainability sector4 and the 2012 Price Waterhouse Coopers Heritage Victoria Review.5 The 2012 VAGO audit found that the former DSE:

Had not clearly identified how compliance activities contribute to achieving legislative objectives and corporate outcomes, how success is measured or how compliance performance is monitored and reported.

Did not adequately measure, monitor, report and review its compliance performance and lacked appropriate performance measures, targets and benchmarks – compliance performance indicators were primarily quantitative and focused on what it does and not how well it does it, or how doing it delivers the required outcomes.

Had a narrow focus in its public compliance reporting (number of activities/outputs) with minimal reporting of the extent to which objectives were achieved or whether compliance was improving over time.

The 2013 VAGO audit found that the former DEPI:

Continued to focus on reporting outputs and activities rather than outcomes

Lacked clarity around selection of performance indicators and measures.

The 2012 Price Waterhouse Coopers report resulted in agreement to develop risk assessment criteria for identifying which permits require compliance monitoring. As a result, a Compliance Monitoring Policy was prepared and adopted in March 2013.

The general approach will be to monitor and report on indicators that show the effectiveness of Heritage Victoria’s compliance and enforcement performance, noting their contribution to achieve the purposes of the Heritage Act 1995 and the Historic Shipwrecks Act 1976 (Cth).

Table 4: Performance Management Indicators

3 Victoria Auditor-General’s Report, Effectiveness of Compliance Activities: DPI and DSE, 20124 Victoria Auditor-General’s Report, Environment and Sustainability Sector. Performance reporting, 20135 Price Waterhouse Coopers Report. Department of Planning and Community Development Heritage Victoria Review Internal Audit July 2012


Performance indicator Explanation Unit of measure

2015-16 target

Intelligence

Develop and implement overarching Heritage Compliance Strategy.

Measures the delivery of the compliance goals that uses a data rich evidence-based approach which will assist to set the compliance priorities for the year.

number 1

Investigations

React to notifications of unauthorised activities without approval or not in accordance with approval given.

Measures the effectiveness of the Investigations team in reacting to notifications.

quantity 100%

Undertake investigations to detect and stop unlawful removal of historic shipwreck relics or archaeological relics and identify possible repeat offenders.

Measures the work undertaken by the Investigations team to target unlawful activity particularly in relation to historic shipwrecks and archaeological site and relics.

number 2

Operations

Proportion of infringement notices upheld on internal review (when a review has been sought) on grounds the decision was contrary to law or involved a mistake of identity.

Measures the level of understanding of the legislation of the officers administering it.

quantity 95%

Protected zone patrol days. Measures change in awareness of recreational fishers and divers.

number 6

Official warnings issued. number *

Infringement notices issued. number *

Prosecutions initiated. number *

Prosecutions finalised. number *

Signed agreements between the department and responsible entity relating to rectification of unlawful activity.

number *

Proportion of compliance and enforcement activities resulting in a formal complaint about the conduct of inspectors.

Measures professionalism of investigations team but acknowledges some complaints may be made due to the nature of the enforcement environment

quantity <5%

Education

Web page to include up-to-date information on the requirement for heritage approvals and how to comply with the legislation.

Open and transparent information which assists people in making informed decisions

number *

Community groups visited by number *


Performance indicator Explanation Unit of measure

2015-16 target

Heritage Victoria staff member where the enforcement provisions of the legislation is raised.

Scuba Diving operators, bottle clubs, recreational fishing clubs contacted.

number *

Training

Percentage of regulatory staff who are adequately trained in the application of appropriate decision making and responses to compliance breaches

Minimum standard of Cert IV – Government Investigations or similar

quantity 100%

Number of Vic Government regulatory officers working in areas where cultural heritage breaches occur who are offered inspector training.

Provides those officers with knowledge to identify breaches under heritage legislation

number 10

*Performance cannot be forecast reliably. Actual results will be included in reporting


PART IV – HOW THE STRATEGY WAS DEVELOPED

A risk-based approach encourages compliance and enforcement activities to focus on areas where the relative risks associated with non-compliance are greatest. This does not mean that areas where the risks are low are neglected. Rather, the tools employed in these areas are less time-and resource-intensive, allowing the regulator to direct a larger proportion of resources to high risk non-compliance issues.

Risk involves consideration of the consequence of non-compliance with the regulatory obligation and the likelihood of whether the regulated community will not comply with the obligation in question and that this will result in the worst consequence.

A two stage risk assessment has been used in considering both static and dynamic factors in determining compliance priorities.

Static risk assessmentStage one involves a static risk assessment. "Static risk" relates to risk embedded in the regulatory framework. This risk is "static" in the sense that the risk assessment associated with compliance obligations remains the same as long as the regulatory framework remains unchanged.

A static risk assessment has been undertaken for each obligation within the scope of this strategy (see ‘Compliance Responsibilities’ above).

Obligations imposed on the regulated community when dealing ?with Inspectors have not been assessed.

Defining the levels of consequence and likelihood

The consequences for non-compliance were determined prior to the risk assessment based on regulatory objectives. These consequences are ranked from insignificant to severe. The levels of consequence are outlined in Table 5, below.

Table 5: Definitions of levels of consequence

Consequence Definition

1. Insignificant a) Does not impact on the cultural heritage significance of a place or object included in the Victorian Heritage Register.

b) Does not impact on a site of potential archaeological significance.c) No detectable impact or negligible impact on the community’s perception of the

integrity of Victoria’s historic environment regulation system and their attitude to compliance, if not addressed.

d) Does not impact on human health and safety.2. Minor a) Limited impact on the cultural heritage significance of a place or object included

in the Victorian Heritage Register.b) Potential to have a minor impact on the community’s perception of the integrity

of Victoria’s historic environment regulation system is not addressed. For example, the issue receives some local, or one-off media attention.

c) Potential to have a minor impact on the community’s perception of Victoria’s historic environment regulation system and their attitude towards compliance, if not addressed. For example, the likely affect in the future would be that people decide to show less care resulting in non-compliance.

d) Minor injuries or illness requiring medical attention.3. Moderate a) Moderate impact on the cultural heritage significance of a place or object


included in the Victorian Heritage Register.b) Potential to have a moderate impact on community’s perception of the integrity

of Victoria’s historic environment regulation system if not addressed. For example, stakeholder groups begin a campaign about the issue and ongoing local media.

c) Potential to have a moderate impact on the regulated community’s perception of Victoria’s historic environment regulation system and their attitude towards compliance, if not addressed. For example, the likely affect in the future would be that people decide to wilfully non-comply.

d) Significant injury or illness requiring in-patient hospitalisation.4. Major a) Major impact on the cultural heritage significance of a place or object included in

the Victorian Heritage Register.b) Potential to have a major impact on public perception of the integrity of

Victoria’s heritage environment regulation system if not addressed. For example, the general public is aware of the issue and there is significant criticism in the state-wide media and lobbying of the Minister over an extended period (months).

c) Potential to have a major impact on the community’s perception of Victoria’s heritage environment regulation system and their attitude towards compliance, if not addressed. For example, the likely affect in the future would be that people decide to wilfully non-comply in a manner that affects heritage registered places and objects.

d) Extensive or permanent injury or illness5. Severe a) Severe impact on the cultural heritage significance of a place or object included

in the Victorian Heritage Register, for example – total demolition.b) Single or multiple deaths or permanent disability or illness.

The levels of likelihood were determined based on factors such as historical frequency, practical difficulties with complying and commercial drivers that might incentivise the community not to comply. The levels of likelihood are ranked from rare to almost certain. The levels of likelihood are outlined in Table 6, below.

Table 6: Definition of levels of likelihood

Likelihood Definition

Rare Worst consequence may occur only in exceptional circumstances – there are no known previous occurrences of this event.

Unlikely Worst consequence may/will occur very infrequently – on average once every 5 to 10 years.

Possible Worst consequence may/will occur at some time – on average once every 1 to 5 years.

Likely Worst consequence will probably occur – on average once per year.

Almost certain Worst consequence is expected to occur – on average more than 5 times per year.

Risk assessment


For each obligation within scope, the static risk assessment process involved an evaluation of:

a) Using Table 4, the level of the worst consequence of non-compliance with that obligation

b) Using Table 5, the likelihood of non-compliance resulting in that worst consequence.

Once the worst consequence of non-compliance with each obligation and the likelihood of that occurring was assessed, the static risk matrix outlined in Table 7 below was used to allocate a static risk rating to each obligation.

Table 7: Static risk matrix

CONSEQUENCE

Insignificant Minor Moderate Major Severe

LIKE

LIHO

OD

Almost certain Moderate Moderate High Extreme Extreme

Likely Low Moderate High Extreme Extreme

Possible Low Moderate High High Extreme

Unlikely Low Low Moderate High Extreme

Rare Low Low Low High High

Tables 8A and 8B below show the results of the static risk assessment.

Table 8A: Results of static risk assessment under the Heritage Act 1995 and Heritage (Historic Shipwreck) Regulations 2007

Section / Regulation

Offence Description Consequence Rating

Likelihood Rating

Risk rating

S64(1) (a) remove, demolish,(b) damage, despoil,(c) develop, alter or(d) excavateall or any part of a heritage place without a permit

Severe Almost certain

Extreme

S64(2) (a) Remove or demolish; or(b) Damage or despoil;(c) Altera registered object without a permit

Severe Possible Extreme

S64(3) Relocate or disturb the position of a fixed registered object

Moderate Possible High

S74(A) Failure to comply with any terms and conditions of a permit issued to carry out works or activities

Severe Almost Certain

Extreme

S107(1) Fail to notify the Executive Director of the location of historic shipwrecks or relic within 7 days of obtaining possession of a historic shipwreck or historic shipwreck relic.

Minor Likely Moderate

S107(2) Fail to notify the Executive Director of possession of an article that has become registered as a historic shipwreck or relic within 7 days of it becoming registered


S107(3) Fail to notify the Executive Director within 7 days of possession of an article that becomes registered as a





Likelihood Rating

Risk rating

historic shipwreck or relic under section 100S108(2) (a) Refuse or fail to comply with a notice from the

Executive Director relating to location or possession of historic shipwrecks or relics(b) Knowingly furnish information that is false or misleading in purported compliance with the notice


S109(4) Fail to comply with a notice from the Executive Director giving directions relating to custody of historic shipwrecks or relics


S110 Remove an article being, or being part of, a historic shipwreck or relic from Victoria otherwise than in accordance with a permit

Major Likely Extreme

S111(1) (a) Take, destroy, damage, remove, disturb, otherwise interfere with a historic shipwreck/relic; or(b) Buy, offer to buy, agree to buy, offer or agree to barter or exchange a historic shipwreck/relic; or(c) Possess a historic shipwreck/relic; or(d) Dispose of a shipwreck/relicWithout lawful authority

Major Almost Certain

Extreme

S111(6) Fail to comply with a notice issued by the Executive Director requiring a person to deliver a historic shipwreck or relic to him or her

Major Possible High

S112(1) Possess on or near a historic shipwreck/relic –(a)salvage/recovery or other equipment that could be readily adapted or used for recovery/salvage purposes of the historic shipwreck/relic(b) explosives, instruments, other equipment that could be used to damage or interfere with the wreck/relic without lawful authority or reasonable excuse

Severe Unlikely Extreme

S113 (7) Contravene a condition of a permit relating to recovery or exploration of historic shipwrecks or relics

Major Unlikely High

S115 (1) Failure to notify the Executive Director in writing within 7 days of finding of the remains of a ship setting out:• a description of the remains/article• a description of the place it is situated which will enable it to be located(3) Give false or misleading information

Minor Possible Moderate

S126A Fail to comply with a permit for use of an archaeological relic for the purposes of study, conservation and exhibition


S127(1) Knowingly or negligently deface/damage/interfere with an archaeological relic or carry out an act likely to endanger a relic, except in accordance with a consent.

Major Possible Moderate

S127(2) Knowingly uncover or expose an archaeological relic or disturb or excavate land for that purpose without consent

Moderate Almost Certain

High




Likelihood Rating

Risk rating

S128 (a) Fail to safeguard archaeological relics from loss or damage(b) give notice to the Executive Director descriving the relic, where it was found and where it came from(c) Fail to make relic available for identification or conservation


High

S129(5) Fail to comply with terms and conditions of consent issued in relation to archaeological relics or sites


High

S130(2) Obstruct, hinder otherwise interfere with the excavation or examination of a registered archaeological place

Moderate Rare Low

S131(1) (a) Fail to notify Executive Director of intention to undertake archaeological investigation or survey prior to commencement(b) Fail to provide all site documentation collected in the archaeological investigation or survey


High

S132(1) Fail to report the discovery of an archaeological relic as soon as practicable to the Executive Director


High

S132(2) The person in charge of the construction or excavation fails to report the discovery of an archaeological relic


Extreme

S132(3) Remove, damage or interfere with a screen, shelter or other structure erected to protect or conserve any archaeological relic

Miner Rare Low

S133(3) Remove, damage or interfere with a screen, shelter or other structure erected to preserve archaeological relics

Minor Rare Low

S134(1) (a) Buy or sell an archaeological relic without consent(b) Possess an archaeological relic for the purpose of sale without consent


Extreme

S149(4) (a) Fail to provide an inspector with name and address(b) Furnish information that is false or misleading

Major Possible High

S151(3) (a) Fail to comply with a request or requirement lawfully made in relation to archaeological relics and sites(b) Knowingly furnish (under this section) information that is false or misleading


S153(2) Fail to comply with a requirement made by an inspector in the exercise of a power relating to historic shipwrecks and relics


S157 Hinder or obstruct an inspector or an authorised person in the exercise of their power


S158 Impersonate an inspector acting in his or her official capacity


S159A An inspector must not give to any other person information gained in the exercise of the powers as

Major Possible Extreme




Likelihood Rating

Risk rating

an inspector, except to the extent necessary under the Act

S164 Fail to comply with an order for the carrying out of works

Severe Possible Extreme

R6 Except in accordance with s113 of the Act:(a) Enter a protected zone; or(b) Moor or use a ship within a protected zone; or(c) Trawl, fish or dive or undertake any other underwater activity within a protected zone; or(d) Park or use a vehicle within a protected zone; or(e) Bring into or use within any protected zone equipment which is constructed or adapted for the purpose of diving, salvage or recovery operations; or(f) Bring into or use within any protected zone any explosives, or any equipment, instruments or tools constructed or adapted for the purposes of cultivating, mining, quarrying, dredging or excavating land including land covered by water; or(g) Cause a ship or other vehicle carrying any equipment, explosives, instruments or tools specified in paragraphs (e) or (f) to enter or remain within any protected zone


Extreme

R7 Knowingly move, remove, damage, alter or otherwise interfere with any plinth, mooring, buoy, pile or other marker or any notice or sign, or any equipment or material lawfully placed or situated in or within 100 metres of any historic shipwreck or in any protected zone for the purposes of managing the historic shipwreck or protected zone without lawful authority.


Table 8B: Results of static risk assessment under the Historic Shipwrecks Act 1975 (Cth) and the Historic Shipwreck Regulations 1976 (Cth)



Likelihood Rating

Risk rating

S9 (1) Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after date of publication of a notice in the Gazette


S9(1A) Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after date on which an article became an article to which the notice applies


S9(2) Fail to give the prescribed notice to the Minister in relation to possession custody or control of the historic shipwreck article within 30 days after a



notice was published in the Government Gazette with respect to the article

S9(3) Fail to give the prescribed notice to the Minister in relation to possession custody or control of a Dutch historic shipwreck article within 30 days at commencement of the Act


S9(4) Fail to give the prescribed notice to the Minister in relation to possession custody or control of a Dutch historic shipwreck article within 30 days after commencement of the Act


S10 Refuse or fail to comply with a notice given by the Minister relating to possession, custody or control of an historic shipwreck article


S11 Fail to comply with notice given by the Minister relating to the preservation, placement or exhibition of the article where a person has possession, custody or control of an article which is a historic shipwreck or historic shipwreck relic.


S13(1) (i) Destroy or causes damage to a historic shipwreck or relic(ii) Interferes with a historic shipwreck or relic(iii) causes the disposal of a historic shipwreck or relic(iv) Cause a historic shipwreck or historic relic to be removed from Australian waters or waters above the continental shelf of Australia


Extreme

R4 (a) Bring into a protected zone equipment constructed or adapted for diving, salvage or recovery operations, or any explosives, instruments or tools the use of which would be likely to cause damage to, or interference with, a historic shipwreck or a historic relic situated within that protected zone;(b) Use within a protected zone any such equipment, explosives, instruments or tools;(c) Cause a ship carrying any such equipment, explosives, instruments or tools to enter, or remain within, a protected zone;(d) Trawl, or dive or engage in any other underwater activity, within a protected zone;(e) Moor or use ships within a protected zone


Extreme

Dynamic risk assessmentStage two involves a dynamic risk assessment. "Dynamic risk" (also referred to as case-specific risk) relates to the risk associated with a particular instance of non-compliance. This helps to ensure that the unique attributes of each instance of non-compliance are taken into account and helps to avoid an inflexible approach and response to risk.

The determination of response option for a particular instance of non-compliance is a product of the static risk rating and the dynamic risk assessment based on case specific factors.

The relevant case specific factors are:

the accused’s compliance history – whether they have been charged with previous offences


the accused’s culpability – whether they had control over the compliance and/or whether they were intentionally non-compliant

the accused’s degree of proactivity – whether they made attempts to avoid non-compliance, self-reported the instance of non-compliance without delay, whether they sought to address the non-compliance once it was detected, and/or whether they made efforts to limit future non-compliance

regulated community’s compliance history – whether there are increasing instances of, or a pattern of non-compliance with the particular obligation. This also allows for cumulative impacts of non-compliance to be taken into account.

A graduated range of responses to instances of non-compliance has been developed, including both legislative and non-legislative responses. As shown under ‘Part II – How to Apply the Strategy’, these responses are grouped into three response options, and each response option represents a group of measures which may be used to respond to instances of non-compliance.

Summary

The Department of Environment, Land, Water and Planning takes its responsibilities seriously. This document will be reviewed annually to work on achieving better community understanding, involvement and transparency in the area of compliance and enforcement



www.delwp.vic.gov.au

Documents

Web viewHeritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy. 2. Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth