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Moving legal goalposts for park lands grab undermines public faith

The state government’s rewriting legislation so it can bulldoze a state heritage precinct for a hospital destroys confidence in heritage protection and sets a disturbing precedent, argues Morry Bailes.

Moving legal goalposts for park lands grab undermines public faith

So is heritage in South Australia worth a cracker, after the current government decision to topple a classic part of the State’s history, the Police Barracks in Thebarton?

The South Australian Police Historical Society will need to rewrite its page reciting details of the construction and eventual opening of the Police Barracks in 1917 to include details of its demolition, and amend its final sentence, ‘Long May the Barracks continue for another 100 years’.

So how is it that heritage laws apply to all of us except, it seems, the government of the day? And why – unlike the outcry following the demolition of the State heritage listed Waite Gatehouse that the deposed Marshall government eventually agreed should be relocated and rebuilt – can the Police Barracks be erased from the State’s history without a similar undertaking?

The precedent was set by Waite Gatehouse: why not do the same over with the Barracks? To the outsider looking in, it looks like one set of rules made by the Parliament for the people, and another set made by the Parliament for the Government. We don’t have to be anti development to ask; where’s the consistency?

The starting point is the Heritage Places Act 1993, that built on earlier heritage legislation. The objects of that Act are to recognise, identify and document our heritage places, including natural as well as human made places, to conserve places of heritage, to promote an understanding of heritage and to encourage sustainable use and adaptation of heritage places to the highest standards of conservation.

Nowhere does it provide exception if a government decides the opposite, or unless it is in an inconvenient location. It is plainly intended to capture all players and protect all heritage places, the Police Barracks included.

The Act sets up a Heritage Council, a Heritage Fund, a Heritage Register, and details the different kinds of heritage places that exist in South Australia that we recognise as belonging to our state heritage. It is an established and recognised system that has worked  pretty well, and strikes what seems like a reasonable balance between the interests of preserving important state heritage sites and the need for continuing development, for balance there must be.

“What has happened here is a truly awful precedent in governance. Because the rules don’t suit, we don’t bother to work with them”

The Heritage Council performs an advisory function to the Minister for Climate, Environment and Water. Other development, infrastructure and planning Acts of Parliament have a role in the overall administration of this area.

You would think against this that it would be impossible for a Government to blithely bypass a complex legislative framework designed to prevent precisely what will now occur to the Thebarton Police Barracks, which is to be razed in its entirety and removed irreparably from our State Heritage. It will cease to exist.

Current heritage laws can be traced back to the reaction of New Yorkers when the magnificent Pennsylvania (Penn) Station was demolished in the 1960s to make way for an underground. There was so much marble in Penn Station that it took years to actually get it down. Horrified by the destruction wrought on such an icon, and facing an enthusiastic urban planner who wanted to sling aerial roads across and throughout Manhattan, New Yorkers rebelled and the current heritage movement was founded. New York in all its Art Deco glory exists today because of the actions of its citizens, and modern heritage laws were born.

Our own Commonwealth Government legislated in the early 1970s and South Australia followed a few years later, after significant Australian heritage buildings began to get knocked over in the modernist and brutalist expansion of 1950s and 60s architecture.

Preserving heritage can be contentious. Property developers generally hate heritage, but then again you don’t buy a heritage building with the intention of development, and there is still plenty of development land, and non heritage buildings that can be sacrificed.

So how in law is it that the Police Barracks will go? Welcome to the concept of the sovereignty of Parliament. Whatever Parliament does it can undo, or override with alternative legislation.

In past weeks whilst debating whether the park lands themselves should be regarded as a heritage place, legislation ultimately enabling the demolition of the Police Barracks was also before the Parliament in the form of the New Women’s and Children’s Hospital Bill. The irony is writ large. The Government’s previous warm embrace of the Heritage (National Park Lands) Amendment Bill while in opposition has turned decidedly chilly in government, related no doubt to its introduction of the ‘Hospital’ Bill, vesting in the relevant minister the whole of the land that currently comprises the police barracks, and at the same ‘relocates’ the current police facilities operating from the barracks, including our mounted police.

Additionally the Premier has essentially questioned the heritage value of the Police Barracks by stating that it is ‘not Bonython Hall’. The Heritage Places Act doesn’t make that type of distinction. There is no ‘Bonython Hall’ provision allowing for subjective assessments by non experts about the relative value of a heritage listed place. That is of course why the Heritage Council in its advisory capacity exists. Would this have happened if it was an aboriginal heritage or natural heritage place? Those who argue for the utility of the site, express, like the premier, a subjective and biased view of the relative value of state heritage.

My declaration for this article is that I myself have developed a multi-storey building in the CBD after knocking down a non-heritage building. But that development was wholly compliant is every respect. My point to the article is that the public is entitled to feel cynical about the ‘one rule for all principle’, that happens to not to apply to the government of the day, and further that the Parliament enables it. Apparently it’s just the rest of us that have to live with the rules.

The basis for the success of law is consistent application. Judicially made law -the common law – overcame this by binding lower courts to the precedents decided by superior courts and courts of appeal. Acts of Parliament are not intended to be amended on a case by case basis. If they are, we have no idea what the legal standard is, indeed what the law will be the day after tomorrow. The same could be said for legislating in contradiction to the stated purpose of an existing Act, in this case the Heritage Act.

What has happened here is a truly awful precedent in governance. Because the rules don’t suit, we don’t bother to work with them – we in effect run the Parliamentary pen through them and make up another set. This is not only about state heritage, it is also about our trust in Parliamentary democracy.

We now know not only that our state heritage laws are worthless, but that the government faced with another inconvenience will just change the law or introduce new law to suit it. So much for the rights of private citizens and in this case, former undertakings by the government that it would not damage our state heritage.

Awkwardly, in hindsight, Deputy Premier Susan Close said earlier in the year, ‘Labor has absolutely no intention of knocking over any state heritage place.’ That was then though, right? The only thing absolute about that statement was it was absolutely false and misleading. Had it been uttered by a corporation, ASIC would be all over it. But these are sworn parliamentarians, evidently unaccountable for their statements in the way private people are. It’s breathtaking and is the very reason why politicians are deeply distrusted by the community. This may be about heritage but it is also about deception.

Professor of Conflict Resolution and Anthropology at the George Mason University, Susan Hirsch , says this about law applying differently to some in our society as contrasted with others: ‘A classic warning sign is when people who have great power are above the law, when the laws don’t apply to them. That is a classic case of tyranny and people call it out as a violation of the rule of law.’ The Australian Rule of Law Education says of the rule of law, ‘At its most basic level the rule of law is the concept that both the government and citizens know the law and obey it.’

It is clear that a government which introduces an Act of Parliament to do something that under an existing Act is prohibited, and expressly does that claiming it is a one off, is a danger to the consistency of the rule of law and the consistent application of law, which is precisely what has been allowed to occur here.

“We now know not only that our state heritage laws are worthless, but that the government faced with another inconvenience will just change the law or introduce new law to suit it”

It is for South Australians to judge this episode. Something is to occur that existing legislation would have prevented, and which further was subject to an ironclad undertaking made recently by a senior government representative would not occur. The one remaining salvation would be to do what the Marshall Government did with the Waite Gatehouse – relocate it. No, the government has ruled that out.

What did the public think? There has been no public consultation. Don’t you just love democracy.