Heritage Act 1995 (Vic) and
Historic 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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Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
1
Contents
Introduction
3
PART I – REGULATORY CONTEXT
4
Compliance responsibilities
ELP compliance philosophy
Regulatory objectives
Regulatory principles
4
4
4
5
PART II – HOW TO APPLY THE STRATEGY
6
Strategic compliance priorities
Encouraging compliance
Monitoring compliance
Responding to non-compliance
Enforcement decision-making framework
6
7
7
7
13
PART III – CLOSED LOOP COMPLIANCE
14
Governance and reporting frameworks
Compliance Performance Management System
14
14
PART IV – HOW THE STRATEGY WAS DEVELOPED
17
Static risk assessment
17
Dynamic risk assessment
23
………………………………………………………………………………………………………………………………………………………………….
SUMMARY
23
Tables
Table 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
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
2
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.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy3
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 responsibilities
The 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 philosophy
To 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 objectives
The 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.
2
Victorian Auditor-General’s Report, Effectiveness of Compliance Activities: DPI and DSE, 2012, page ix.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
4
Regulatory principles
DELWP will treat all members of the community professionally and with respect in the delivery of its riskbased 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.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
5
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 priorities
The 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).
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
6
Encouraging compliance
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 compliance
Monitoring 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
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
7
Table 2: Static risk ratings for the Heritage Act 1995 and associated regulations
Act/
Regulations
Heritage Act
1995 (Vic)
Section/
Regulation
64(1)
64(2)
74(A)
110
111(1)
112(1)
132(2)
134(1)
159A
164
Historic
Shipwrecks
Act 1976
(Cth)
13(1)
Heritage
(Historic
Shipwreck)
Regulations
2007 (Vic)
6
Offence Description
Risk rating
(a) remove, demolish,
(b) damage, despoil,
(c) develop, alter or
(d) excavate
all or any part of a heritage place without a permit
(a) Remove or demolish; or
(b) Damage or despoil;
(c) Alter
a registered object without a permit
Failure to comply with any terms and conditions of a permit
issued to carry out works or activities
Remove an article being, or being a part of, a historic shipwreck
or relic from Victoria otherwise than in accordance with a permit
(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/relic
Without lawful authority
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
The person in charge of the construction or excavation fails to
report the discovery of an archaeological relic
(a) Buy or sell an archaeological relic without consent
(b) Possess an archaeological relic for the purpose of sale
without consent
Extreme
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
Fail to comply with an order for the carrying out of works
Extreme
(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
Except in accordance with s113 of the Heritage Act 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
Extreme
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
8
Extreme
Extreme
Extreme
Extreme
Extreme
Extreme
Extreme
Extreme
Extreme
Act/
Regulations
Section/
Regulation
Offence Description
Risk rating
(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
Historic
Shipwrecks
Regulations
1978 (Cth)
4
Heritage Act
1995 (Vic)
64(3)
108(2)
109(4)
111(6)
113(7)
127(2)
128
129(5)
131(1)
(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
Relocate or disturb the position of a fixed registered object
Extreme
(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
Fail to comply with a notice from the Executive Director giving
directions relating to custody of historic shipwrecks or relics
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
Contravene a condition of a permit relating to recovery or
exploration of historic shipwrecks or relics
Knowingly uncover/expose ?an archaeological relic or
disturb/excavate land for that purpose without a consent
(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
Fail to comply with terms and conditions of consent issued in
relation to archaeological relics or sites
(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
High
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
9
High
High
High
High
High
High
High
High
Act/
Regulations
Section/
Regulation
Offence Description
Risk rating
archaeological investigation or survey
149(4)
151(3)
153(2)
157
158
Historic
Shipwrecks
Act 1976
(Cth)
11
Heritage Act
1995 (Vic)
107(1)
107(2)
107(3)
115
126A
127(1)
132(1)
Historic
Shipwrecks
Act 1976
(Cth)
S9 (1)
S9(1A)
S9(2)
(a) Fail to provide an inspector with name and address
(b) Furnish information that is false or misleading
(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
Fail to comply with a requirement made by an inspector in the
exercise of their power relating to historic shipwrecks and relics
Hinder or obstruct an inspector or an authorised person in the
exercise of a power
Impersonate an inspector acting in his or her official capacity
High
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.
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.
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
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
(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
Fail to comply with a permit for the use of an archaeological
relic for the purposes of study, conservation and exhibition
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
Fail to report the discovery of an archaeological relic as soon as
practicable to the Executive Director
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
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
Fail to give the prescribed notice to the Minister in relation to
possession custody or control of the historic shipwreck article
High
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
10
High
High
High
High
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Moderate
Act/
Regulations
Section/
Regulation
S9(3)
S9(4)
S10
Heritage
(Historic
Shipwreck)
Regulations
2007 (Vic)
7
Heritage Act
1995 (Vic)
124
130(2)
133(3)
Offence Description
within 30 days after a notice was published in the Government
Gazette with respect to the article
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
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
Refuse or fail to comply with a notice given by the Minister
relating to possession, custody or control of an historic
shipwreck article
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.
Destroy, damage, remove or interfere with a notice erected to
identify an archaeological place
Obstruct, hinder otherwise interfere with the excavation or
examination of a registered archaeological place
Remove, damage or interfere with a screen, shelter or other
structure erected to preserve archaeological relics
Risk rating
Moderate
Moderate
Moderate
Moderate
Low
Low
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:
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
11



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 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 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 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
General advice
Education
campaign
Formal guidance
Request
information
Inspection and
audit
DELWP will not respond to this instance of non-compliance.
DELWP will respond to direct requests for advice from members of the public and
stakeholder groups.
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.
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.
DELWP to request a regulated entity to provide information to demonstrate
compliance.
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
Inspection and
audit
Voluntary
corrective action
Warnings
Infringement
Notices
DELWP to request a regulated entity to provide information to demonstrate
compliance.
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.
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.
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.
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.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
12
RESPONSE OPTION 3
Warnings
Infringement
Notices
Prosecution
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.
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.
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 framework
DELWP 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.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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PART III – CLOSED LOOP COMPLIANCE
Governance and reporting frameworks
DELWP’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 System
The 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).
3
Victoria Auditor-General’s Report, Effectiveness of Compliance Activities: DPI and DSE, 2012
4
Victoria Auditor-General’s Report, Environment and Sustainability Sector. Performance reporting, 2013
5
Price Waterhouse Coopers Report. Department of Planning and Community Development Heritage Victoria Review Internal Audit July 2012
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Table 4: Performance Management Indicators
Performance indicator
Explanation
Unit of
measure
2015-16
target
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
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
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
*
Measures professionalism of
investigations team but
acknowledges some complaints may
be made due to the nature of the
enforcement environment
quantity
<5%
Open and transparent information
which assists people in making
informed decisions
number
*
Intelligence
Develop and implement overarching
Heritage Compliance Strategy.
Investigations
Operations
Proportion of compliance and
enforcement activities resulting in a
formal complaint about the conduct
of inspectors.
Education
Web page to include up-to-date
information on the requirement for
heritage approvals and how to
comply with the legislation.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Performance indicator
Explanation
Unit of
measure
2015-16
target
Community groups visited by
Heritage Victoria staff member
where the enforcement provisions of
the legislation is raised.
number
*
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
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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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 assessment
Stage 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.
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.
2. Minor
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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3. Moderate
4. Major
5. Severe
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.
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 illness
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.
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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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
LIKELIHOOD
CONSEQUENCE
Insignificant
Minor
Moderate
Major
Severe
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 /
Offence Description
Regulation
S64(1)
S64(2)
S64(3)
S74(A)
S107(1)
S107(2)
(a) remove, demolish,
(b) damage, despoil,
(c) develop, alter or
(d) excavate
all or any part of a heritage place without a permit
(a) Remove or demolish; or
(b) Damage or despoil;
(c) Alter
a registered object without a permit
Relocate or disturb the position of a fixed registered
object
Failure to comply with any terms and conditions of a
permit issued to carry out works or activities
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.
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
Consequence Likelihood
Rating
Rating
Risk
rating
Severe
Almost certain
Extreme
Severe
Possible
Extreme
Moderate
Possible
High
Severe
Almost Certain
Extreme
Minor
Likely
Moderate
Minor
Likely
Moderate
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Section /
Offence Description
Regulation
S107(3)
S108(2)
S109(4)
S110
S111(1)
S111(6)
S112(1)
S113 (7)
S115
S126A
S127(1)
S127(2)
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
(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
Fail to comply with a notice from the Executive
Director giving directions relating to custody of
historic shipwrecks or relics
Remove an article being, or being part of, a historic
shipwreck or relic from Victoria otherwise than in
accordance with a permit
(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/relic
Without lawful authority
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
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
Contravene a condition of a permit relating to
recovery or exploration of historic shipwrecks or
relics
(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
Fail to comply with a permit for use of an
archaeological relic for the purposes of study,
conservation and exhibition
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.
Knowingly uncover or expose an archaeological relic
or disturb or excavate land for that purpose without
Consequence Likelihood
Rating
Rating
Risk
rating
Minor
Likely
Moderate
Moderate
Possible
High
Moderate
Possible
High
Major
Likely
Extreme
Major
Almost Certain
Extreme
Major
Possible
High
Severe
Unlikely
Extreme
Major
Unlikely
High
Minor
Possible
Moderate
Minor
Possible
Moderate
Major
Possible
Moderate
Moderate
Almost Certain
High
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Section /
Offence Description
Regulation
Consequence Likelihood
Rating
Rating
Risk
rating
(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
Fail to comply with terms and conditions of consent
issued in relation to archaeological relics or sites
Obstruct, hinder otherwise interfere with the
excavation or examination of a registered
archaeological place
(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
Fail to report the discovery of an archaeological relic
as soon as practicable to the Executive Director
The person in charge of the construction or
excavation fails to report the discovery of an
archaeological relic
Remove, damage or interfere with a screen, shelter
or other structure erected to protect or conserve any
archaeological relic
Remove, damage or interfere with a screen, shelter
or other structure erected to preserve archaeological
relics
(a) Buy or sell an archaeological relic without
consent
(b) Possess an archaeological relic for the purpose of
sale without consent
Moderate
Almost Certain
High
Moderate
Almost Certain
High
Moderate
Rare
Low
Moderate
Almost Certain
High
Moderate
Almost Certain
High
Major
Almost Certain
Extreme
Miner
Rare
Low
Minor
Rare
Low
Major
Almost Certain
Extreme
(a) Fail to provide an inspector with name and address
(b) Furnish information that is false or misleading
(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
Fail to comply with a requirement made by an
inspector in the exercise of a power relating to
historic shipwrecks and relics
Hinder or obstruct an inspector or an authorised
person in the exercise of their power
Impersonate an inspector acting in his or her official
capacity
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
Major
Possible
High
Moderate
Possible
High
Moderate
Possible
High
Moderate
Possible
High
Moderate
Possible
High
Major
Possible
Extreme
consent
S128
S129(5)
S130(2)
S131(1)
S132(1)
S132(2)
S132(3)
S133(3)
S134(1)
S149(4)
S151(3)
S153(2)
S157
S158
S159A
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Section /
Offence Description
Regulation
Consequence Likelihood
Rating
Rating
Risk
rating
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
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.
Major
Almost Certain
Extreme
Minor
Possible
Moderate
R7
Table 8B: Results of static risk assessment under the Historic Shipwrecks Act 1975 (Cth) and the Historic
Shipwreck Regulations 1976 (Cth)
Section /
Regulatio
n
S9 (1)
S9(1A)
S9(2)
Offence Description
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
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
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
Consequence Likelihood
Rating
Rating
Risk rating
Minor
Possible
Moderate
Minor
Possible
Moderate
Minor
Possible
Moderate
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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S9(3)
S9(4)
S10
S11
S13(1)
R4
was published in the Government Gazette with
respect to the article
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
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
Refuse or fail to comply with a notice given by the
Minister relating to possession, custody or control of
an historic shipwreck article
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.
(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
(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
Minor
Possible
Moderate
Minor
Possible
Moderate
Minor
Likely
Moderate
Moderate
Possible
High
Major
Almost Certain
Extreme
Major
Almost Certain
Extreme
Dynamic risk assessment
Stage 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
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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
the accused’s degree of proactivity – whether they made attempts to avoid non-compliance, selfreported the instance of non-compliance without delay, whether they sought to address the noncompliance 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 noncompliance 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
Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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Heritage Act 1995 (Vic) and Historic Shipwrecks Act 1976 (Cth) Compliance Strategy
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www.delwp.vic.gov.au