Environment Protection and Biodiversity Conservation (Villawood Immigration Centre—Removal of Commonwealth Heritage Value) Instrument 2022

Commonwealth Heritage List. The List, established under Division 3 of Part 15 of the EPBC Act, comprises places that have Commonwealth Heritage values. A place qualifies for inclusion if it meets one or more of the Commonwealth Heritage criteria prescribed by the EPBC Regulations. Inclusion imposes obligations under the Act, including that certain actions likely to have a significant impact on a Commonwealth Heritage place require approval (sections 26, 82, 341ZC). Removal of a value reduces the scope of those obligations. In this instrument, the removal concerns a single value, not the entire listing.

Commonwealth Heritage value. Under subsection 341D(1), a place has a Commonwealth Heritage value if and only if it meets one of the criteria. The value is the heritage value that causes the place to meet that criterion. Subsection 341D(2) then deems the place to have those values that are included in the List. This deeming provision is important for the removal power: the Minister must ignore it when deciding whether the place still has the value (paragraph 341L(3)(a)). In this instrument, the Minister states that she ignored that subsection, as required.

Criterion D. Criterion D is defined in paragraph 10.01A(2)(d) of the EPBC Regulations as the place having outstanding heritage value to the nation because of its importance in demonstrating the principal characteristics of a class of Australia’s natural or cultural places or environments. For the Villawood Immigration Centre, the specific criterion D heritage value was described as: "The hostel demonstrates principal characteristics of migrant hostels throughout Australia, with the use of ex-military buildings, construction and adaptation of the buildings for civilian use, the arrangement of accommodation into units and the siting of the hostel close to industry." The attributes were "adapted and reused buildings, the arrangement of buildings and site layout." The instrument removes only this value.

Removal for loss of value. The power to remove a Commonwealth Heritage value under subsection 341L(3) distinguishes between removal for loss of value (paragraph (a)) and removal on other grounds. This instrument is explicitly a removal for loss of value, meaning the Minister must be satisfied that the place no longer has that value. The process under section 341M requires written request to the Australian Heritage Council for advice, public notice inviting comments within 20 business days, and a decision within 60 business days after the advice is received or the period ends. The Minister complied: request to AHC on 26 November 2020 (advice due by end of 2021), notice published on 31 July 2021 in The Australian and on the department’s website, and advice received from AHC on 15 March 2022. No public comments were received. The AHC advised that the place had limited capacity to demonstrate hostel characteristics and might be better assessed under criterion A. The Minister found that the redevelopment had removed the capacity to demonstrate the principal characteristics, and therefore the place no longer satisfied criterion D. She then exercised discretion to remove the value, with no countervailing reasons.

Legislative instrument and commencement. Under subsection 341L(6), an instrument that deals only with removal for loss of value is a legislative instrument and takes effect on the first day it is no longer liable to be disallowed under section 42 of the Legislation Act 2003. This means there is a delay between making the instrument (30 March 2022) and its commencement. During that period, the value remains on the List for legal purposes, although the Minister’s decision is already made. This delay is a practical trap for anyone relying on the removal.

The instrument directly affects the Villawood Immigration Centre, a Commonwealth detention facility in Villawood, NSW. The place is managed by the Department of Home Affairs (or its successor). The removal of the criterion D heritage value reduces the regulatory burden on the Commonwealth in managing and potentially redeveloping the site. Under the EPBC Act, actions that are likely to have a significant impact on a Commonwealth Heritage place require approval from the Minister. By removing this value, the threshold for requiring approval may be lowered. Specifically, any future actions that might have affected the characteristics described under criterion D no longer require heritage assessment for that criterion. However, if other heritage values remain on the List for the place, they continue to attract protection. The instrument does not list any other values, so it is possible criterion D was the only value, making the removal effectively a full delisting of all heritage values for that place. But the instrument is careful to remove only that value; the place remains a "Commonwealth Heritage place" for the purposes of sections 341C and 341ZC, though with no values it may be moot.

The Australian Heritage Council is affected indirectly: its advice was considered and influenced the decision. The Council advised that the place might have value under criterion A, but the Minister did not act on that. The Council may reconsider the place for listing under criterion A, but that would be a separate process.

The public and heritage stakeholders are affected to the extent they lose the opportunity to have the hostel’s heritage recognised at the national level. No public comments were received during the notice period, indicating no immediate opposition, but that does not mean no one cares. The instrument may affect advocacy groups concerned about migrant heritage or detention conditions. Property owners and future developers (the site is Commonwealth land, so only the Commonwealth can develop) are affected by reduced compliance costs, which is a benefit in terms of flexibility but a cost in heritage preservation.

Potential litigants who might seek judicial review of the decision are affected: the decision is likely reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) because it is a decision of an administrative character under an enactment. The decision-maker followed the statutory process; there is no evidence of error, but any interested person could challenge the factual findings or the exercise of discretion within the 60 business day time limit for review. However, the instrument itself may be disallowed by either House of Parliament, which would nullify it. That is a political check.

Taxpayers are affected indirectly: maintaining heritage values imposes ongoing compliance costs on the Commonwealth. Removal may reduce those costs, but also reduces public heritage amenity. The economic trade-off is implicit: the government decided the heritage value was not worth retaining given the redevelopment. The costs of the redevelopment (likely substantial) are borne by the Commonwealth, and removing the heritage value avoids the need for heritage impact assessments for any future changes. The opportunity cost is loss of heritage tourism or educational value, but that seems minimal for a detention centre.

Duty of the Minister. The Minister has a duty under subsection 341M(3) to consider the Australian Heritage Council’s advice and any public comments received. She must decide whether to remove the value within 60 business days after the advice is received or the period ends (subsection 341M(5)). She also must publish a notice under subsection 341M(1) describing the proposed removal and inviting comments within 20 business days. The Minister must also give the AHC Chair a written request for advice within a specified period. These duties are procedural; the substantive decision is discretionary. The Minister must be satisfied the place no longer has the value (paragraph 341L(3)(a)), ignoring the deeming provision. The statement of reasons shows she made that finding.

Right of the Australian Heritage Council. The Council has a right to give advice within the period specified in the Minister’s request (subsection 341M(2)). It also has a right to have its advice considered (subject to timeliness). The Council’s advice can influence the decision but does not bind the Minister.

Right of the public. Any person has the right to give comments within 20 business days after the notice is published. The notice must be published on the internet, in a daily newspaper circulating in each State and Territory, and in other ways required by the regulations. No comments were received in this case. The public also has the right to petition or challenge the decision through judicial review if they are an aggrieved person.

Right of the Minister to remove. The Minister has the right under subsection 341L(3) to remove the heritage value if the statutory precondition is met. The discretion is broad; the statement of reasons says there are "no countervailing reasons" not to exercise the discretion. The Minister could have decided not to remove even if the place no longer had the value, but she chose to do so.

Duty to comply with disallowance. The instrument is subject to disallowance under the Legislation Act 2003. The Minister and the department must ensure the instrument is tabled in each House and remains liable to disallow for 15 sitting days. If disallowed, the instrument is void from the beginning, and the value remains on the List. That imposes a duty on the executive to monitor parliamentary proceedings and possibly defend the instrument.

No direct duties on the site manager. The instrument does not impose any new duties on the manager of Villawood Immigration Centre. Rather, it removes a heritage value, which may relieve them from some duties under the EPBC Act, such as the need to obtain approval for actions that could significantly impact that particular value. But other duties under the Act (e.g., for Commonwealth Heritage places generally) still apply if any other heritage values remain.

The instrument itself does not create or modify any penalties. Penalties for harming Commonwealth Heritage values are found in the EPBC Act. Under section 26, a person must not take an action that has, will have, or is likely to have a significant impact on a Commonwealth Heritage place without approval. That is a civil penalty provision (maximum 5,000 penalty units for an individual) and also a criminal offence if intentional (maximum 7 years imprisonment). The removal of the criterion D heritage value means that this particular value can no longer be harmed. However, if other heritage values remain on the List for Villawood, those are still protected. The Minister’s statement of reasons notes that the AHC suggested remnant aspects might be better assessed under criterion A, but that criterion is not currently listed for this place, so there is no penalty for harming criterion A aspects unless they become listed later.

Enforcement of the EPBC Act is carried out by the Department of Climate Change, Energy, the Environment and Water (formerly the Department of the Environment), through investigations and civil or criminal proceedings. The removal of a heritage value could affect enforcement priorities: the enforcement agency is less likely to investigate actions affecting characteristics related to the removed value. The instrument may therefore reduce the enforcement burden on the regulator and the compliance burden on the site manager.

The instrument is also subject to parliamentary disallowance. If disallowed, it is taken never to have been made, and the criterion D value remains on the List. That is a political enforcement mechanism. There are no monetary penalties for failing to comply with the instrument itself because it is not an enforceable rule; it is a listing decision.

No litigation history is mentioned in the instrument. No cases are cited. This is because the instrument is a recent ministerial decision, and no court challenges have occurred to date. However, any challenge would be under the ADJR Act or possibly for jurisdictional error. The Minister’s factual findings would be reviewed on grounds of reasonableness. The instrument’s statement of reasons is detailed enough to likely survive judicial review, but that is not guaranteed.

The instrument amends the Commonwealth Heritage List by removing a value. It does not directly interact with other Acts beyond the EPBC Act, but several cross-references are relevant.

Environment Protection and Biodiversity Conservation Act 1999. The instrument is made under that Act and forms part of the Commonwealth Heritage List management regime. The removal affects the operation of several sections: sections 341J (inclusion of values), 341L (removal), 341M (process), 341ZC (obligations of Commonwealth agencies to avoid significant impacts on Commonwealth Heritage places). The removal reduces the scope of obligations for the agency managing Villawood.

Environment Protection and Biodiversity Conservation Regulations 2000. The instrument defines criterion D by reference to regulation 10.01A(2)(d). It also references regulation 16.05A for publication requirements. The instrument does not amend the Regulations; it is a subordinate instrument under the Act.

Legislation Act 2003. The instrument is a legislative instrument for the purposes of that Act. It must be registered on the Federal Register of Legislation, tabled in each House, and subject to disallowance. The commencement provision under subsection 341L(6)(b) of the EPBC Act incorporates section 42 of the Legislation Act 2003 for timing. This interaction means the instrument does not take effect until the disallowance period expires. During that period, the removal is not legally effective even though the Minister has made the decision.

Migration Act 1958. Villawood Immigration Centre is primarily a detention facility under the Migration Act. The instrument does not directly affect immigration detention law, but it removes a heritage overlay that could have constrained modifications to the centre. For example, if the centre needed to be upgraded to meet detention standards, the heritage removal eliminates the need to consider impact on criterion D characteristics. That may reduce delays and costs in complying with detention obligations.

Other heritage laws. The instrument does not affect State heritage laws (NSW Heritage Act 1977) unless the place is also listed on the State Heritage Register. The instrument only removes Commonwealth heritage value; State and local heritage protections remain unaffected. The place may also be owned by the Commonwealth, so State laws may have limited application due to Commonwealth immunity, but the instrument does not address that.

Native Title Act 1993. No interaction mentioned. Villawood is likely freehold owned by the Commonwealth before native title.

Competition and economic effects. The removal likely has no effect on competition, as the site is government-managed. However, reduced regulation may lower barriers to private sector involvement if the Commonwealth contracts out management. That indirect effect is plausible but not addressed.

The instrument is primary legislation in its own right, not an amending instrument. It has not been amended since its making on 30 March 2022. It remains as made, unaltered. The only relevant historical event is the making of the instrument and its commencement. The instrument cites its authority as subsection 341L(4) of the EPBC Act, which is the same today. There have been no subsequent amendments to the EPBC Act that would affect this instrument, but readers should check if the Act has been amended since 2022. The instrument does not amend any other instrument; it operates to modify the content of the Commonwealth Heritage List.

The statement of reasons provides a legislative history: the Villawood Immigration Centre was originally listed with the criterion D value at some prior date. That listing is Place ID 105543. The instrument does not give the date of listing. The removal process began with a request to the AHC on 26 November 2020, and the AHC provided advice on 15 March 2022. The Minister decided and made the instrument on 30 March 2022. This timeline shows the process took about 16 months, partly because the AHC was given until end of 2021 to provide advice. That is a long period for a decision on a single heritage value, but it indicates the procedural rigour required.

The instrument and the decision it embodies have not been the subject of any reported litigation. No cases are mentioned in the source material. This is consistent with the instrument being relatively new and uncontroversial. The public notice received no comments, which suggests no organised opposition likely to seek judicial review. However, the absence of litigation does not mean the decision is immune from challenge. A person with standing (e.g., an environmental organisation or a person affected by the redevelopment) could seek review under the ADJR Act within the limitation period (28 days from the decision). The grounds would likely include unreasonableness (that the Minister misapplied the criterion, or that the evidence did not support her finding). The Minister’s statement of reasons is detailed: she considered the AHC advice, made a finding on fact (redevelopment limited capacity to demonstrate characteristics), and concluded the place no longer satisfied criterion D. This reasoning is likely to be held sufficient. The AHC’s suggestion that remnant aspects might be better assessed under criterion A does not contradict the finding under criterion D. So a legal challenge would face an uphill battle.

If litigation had occurred, it would likely have been reported, but none is known. Potential future litigation could arise if the instrument is disallowed and the Minister tries to re-make it. But as of writing, no disallowance motions are recorded.

The instrument is part of a larger body of heritage removal decisions. Although no court has considered this specific removal, there is general case law on the EPBC Act heritage provisions. But by the constraint to only cite cases named in the source, we note that the source names no cases.

Disallowance period delay. The instrument’s commencement is not immediate. It takes effect on the first day it is no longer liable to be disallowed under section 42 of the Legislation Act 2003. This could be weeks or months after the instrument is made, depending on when the Senate and House next sit. During this period, the criterion D heritage value remains legally on the List. Anyone acting in reliance on the removal before commencement does so at their own risk. For example, if the Department of Home Affairs demolishes a building that was an attribute of criterion D during this gap, it could be committing an offence under section 26 of the EPBC Act. The instrument includes a table stating commencement as per paragraph 341L(6)(b), but that is not a fixed date. Practitioners must monitor the Federal Register of Legislation for a notice of commencement.

Only criterion D is removed; other values may remain. The instrument is very specific: it removes only the criterion D heritage value as defined. The statement of reasons does not mention whether any other heritage values exist for Villawood Immigration Centre. The Commonwealth Heritage List may contain other values under different criteria (A, B, C, E, F, G, H). The instrument does not remove those. Therefore, the place may still be a Commonwealth Heritage place with other protections. A reader could mistakenly think the entire heritage listing is gone. It is not. The AHC advised that remnant aspects might be better assessed under criterion A, which suggests there may be potential for other values, but they are not currently listed. So the removal does not affect any existing non-criterion D values.

Definition of “criterion D heritage value” is tailored. The instrument defines that term specifically as: "Criterion D,Characteristic values: The hostel demonstrates principal characteristics of migrant hostels throughout Australia, with the use of ex-military buildings, construction and adaptation of the buildings for civilian use, the arrangement of accommodation into units and the siting of the hostel close to industry. Attributes: Adapted and reused buildings, the arrangement of buildings and site layout." This definition narrowly captures that particular value. If the Villawood Immigration Centre had other attributes that could independently satisfy criterion D (a different subclass of place), they are not covered by this removal. That is a trap for the unwary: the removal is not a blanket removal of all possible criterion D values for the place.

No public comments does not equal approval. The Minister received no comments. That does not mean the decision was unanimous; it may mean the public was unaware or indifferent. The process is still open to challenge.

Power to exercise discretion despite AHC advice. The AHC advised that the place "might not have significant heritage value under criterion D." That is equivocal. The Minister relied on that as supporting removal, but also made her own finding. The AHC’s suggestion about criterion A is not a reason to retain criterion D. However, critics could argue the Minister should have considered listing under criterion A instead of removing. That argument is not addressed in the statement of reasons, which could be a vulnerability.

The instrument is subject to disallowance. Even after commencement, the instrument could be disallowed by either House within 15 sitting days. If disallowed, it is void, and the value is restored. That would be a significant development. The instrument was made in March 2022, near the end of the Morrison government. A change of government could lead to disallowance. Practitioners should check Hansard for any disallowance motions.

For those managing Villawood Immigration Centre, compliance with the EPBC Act in relation to the criterion D value is straightforward after the instrument commences: no further approvals are required for actions that would affect the characteristics that once underpinned that value. However, until commencement, the value remains protected. The site manager should verify the instrument’s commencement date on the Federal Register of Legislation and keep a record. If any development or maintenance work is planned during the transition period, it should be assessed under the EPBC Act as if the value were still present. After commencement, the manager no longer needs to consider criterion D in environmental impact assessments for Commonwealth actions under sections 26 and 82, but should still check for any other listed heritage values. The manager should also be aware that the removal does not affect other legal obligations under State heritage laws or the EPBC Act in relation to other matters of national environmental significance (e.g., threatened species, water resources).

For heritage advisors, the removal means that the criterion D value is no longer part of the Commonwealth Heritage List. If a client is proposing an action that might have impacted that value, advisory notes should state that the value was removed and that the instrument commenced on a certain date. However, any action taken before commencement that had a significant impact on that value could still be the subject of enforcement action, because the value existed at that time.

For the Department of Climate Change, Energy, the Environment and Water (the heritage regulator), compliance involves updating the Commonwealth Heritage List database and ensuring that any references to the criterion D value are removed. The department must also ensure that the instrument is properly registered and that the public is informed. The department should also monitor the disallowance period.

For third parties, no direct compliance steps are required. If they relied on the heritage listing to challenge a development, that ground is now removed.

In general, the instrument is self-executing: once commenced, it automatically removes the value from the List. No further administrative act is needed. The only compliance risk is acting before commencement or missing other values. Practitioners should treat the instrument as a narrow exception to the broader heritage protections, not as a blanket release.