Regulatory Impact Statement

REGULATORY IMPACT STATEMENT

Heritage (Historic Shipwrecks) Regulations 2007

March 2007

This Regulatory Impact Statement (RIS) has been prepared to facilitate public discussion on the proposed Heritage (Historic Shipwrecks) Regulations 2007

Copies of the draft Regulations 2007 are provided as an attachment to this RIS.

Public comments and written submissions are invited on the proposed Regulations in response to information provided in the RIS.

All submissions will be treated as public documents.

Liz Kilpatrick Project Officer Heritage Victoria Department of Sustainability and Environment P O Box 500 East Melbourne, Victoria 3002

Email: [email protected]

A Victorian Government Publication

This publication is copyright. No part may be reproduced by any process except In accordance with the provisions of the Copyright Act 1986.

Prepared by Peter Day Consulting Pty Ltd for the Department of Sustainability and Environment

Published by the Department of Sustainability and Environment, Built Environment Division, 8 Nicholson Street, East Melbourne, Victoria 3002. www.dse.vic.gov.au

ISBN 1 74152 444 X

This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may arise from you relying on any information in this publication.

CONTENTS

EXECUTIVE SUMMARY 1

1. INTRODUCTION 3 1.1 Background 1.2 The Regulatory Framework

2. THE NATURE AND EXTENT OF THE PROBLEM 6 2.1 Background 2.2 Threats to Historic Shipwrecks 2.3 City of Launceston Historic Shipwreck Protected Zone 2.4 Summary of Problems

3. THE OBJECTIVES 13 3.1 Primary Objectives 3.2 Secondary Objectives

4. THE PROPOSED REGULATIONS 14 4.1 Legislative Power 4.2 Affected Parties 4.3 The Proposed Regulations 4.4 Summary of Impact Analysis 4.5 Enforcement of Proposed Regulations 4.6 Consultation 4.7 Interstate Legislation

5. COSTS AND BENEFITS OF PROPOSED REGULATIONS 21 5.1 Analytical Framework 5.2 The Base Case 5.3 Benefit/Cost Impact Assessment of Proposed Regulations 5.4 Summary of Cost and Benefit Assessment

6. OTHER MEANS OF ACHIEVING THE OBJECTIVES 29 6.1 Introduction 6.2 Voluntary Industry Code of Practice – Option 1 6.3 Fees apply only for Commercial Access – Option 2 6.4 Conclusion

7. NATIONAL COMPETITION POLICY ASSESSMENT 34 7.1 Policy Background 7.2 Definition of Market 7.3 Test for Restriction on Competition

APPENDIX 1: PROPOSED FEES FOR PERMITS Attachment 1: Capital and Ongoing Costs for C ity of Launceston Access & Anticipated Visitation Rates

APPENDIX 2: VICTORIA’S PROTECTED ZONES

APPENDIX 3: PROPOSED REGULATIONS

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

HERITAGE (HISTORIC SHIPWRECKS) REGULATIONS 2007

REGULATORY IMPACT STATEMENT

EXECUTIVE SUMMARY

The single greatest threat to historic shipwrecks is disturbance. Removing concretions from ferrous metals and timbers removes the protective sedimentary covering and re- exposes the object to accelerated corrosion rates. The removal of concretions themselves can also remove any potential to lift impressions where the enclosed object has disappeared.

Disturbance occurs where a diver wittingly or unwittingly disturbs the shipwreck. Divers looting a shipwreck site reduce the intrinsic value of the site by removing artefacts as well as accelerating the deterioration process by disturbing the site.

Despite a significant and ongoing education program directed to diving, boating and fishing groups, as well as to the wider community, and despite also the extensive national publicity given to an amnesty proclaimed in 1993 which members of the community holding undeclared artefacts were able to register those artefacts without fear of prosecution, a small number of irresponsible people continue to engage in actions which constitute a major threat to our maritime heritage or which are contrary to public safety policies.

In order to effectively manage visitation to particularly sensitive sites, capital investment on mooring facilities is being made by Heritage Victoria. These costs are proposed to be recovered through a new category of permit fee.

Victoria’s Heritage Act 1995 was passed to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects. One of the most significant provisions of the Act is the ability to register an area of up to 100 hectares in Victorian waters as a protected zone. The purpose of such zones is to protect historic shipwrecks or historic relics which are particularly vulnerable to looting or other physical disturbance or to ensure the safety of the public. Of the almost two hundred wrecks currently protected under the Victoria’s Heritage Act, six are protected by Historic Shipwreck protected zones.

The Heritage (Historic Shipwrecks) (General) Regulations 1996 were made to improve the management of historic shipwreck sites and the cultural material they contain; particularly those shipwrecks which are located within registered protected zones because of their exceptional cultural significance or vulnerability to disturbance, or for reasons of public safety.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

A further objective of the Regulations was to provide an administrative framework to enable the efficient operation of the Act in so far as it applies to historic shipwrecks and historic shipwreck relics.

The Regulations set the fees for permits required under the Act and incorporate various administrative measures necessary for the efficient implementation of the Act. The Regulations expire on 25 August 2007 under the sunsetting provisions of the Subordinate Legislation Act 1994.

This Regulatory Impact Statement (RIS) examines the costs and benefits of proposed replacement Regulations that are attached. The proposed Regulations are essentially the same as the existing Regulations and have the same objectives. Two new fees are proposed to cover the circumstances where Heritage Victoria has provided infrastructure near particular historic shipwrecks to facilitate access.

Because of the intangible nature of the subject material a balanced scorecard approach has been adopted in the assessment of costs and benefits as provided in the Victorian Guide to Regulation .1 This assessment shows a strong positive outcome for the proposed Regulations.

In considering the most effective means to achieve the objectives consideration has been given to two alternatives to the proposed Regulations, namely: • the introduction of a voluntary Code (or Codes) of Practice for divers, fishers, boat operators and other people likely to undertake threatening activities in a protected zone; and • fees to only apply for commercial access.

The balanced scorecard approach was also used to assess each Option. Both returned negative or zero impacts from the assessment and are therefore considered inferior Options to the proposed regulatory approach.

The proposed Regulations were assessed for any restriction on competition. The assessment shows that the regulations do not limit the entry to this market in any way, and all businesses within the market will be equally affected. Therefore, the proposed Regulations do not contain a restriction on competition. Moreover, the possible markets are not restricted by the proposed Regulations as barriers to competition do not apply.

1 Victorian Guide to Regulation incorporating Guidelines made under the Subordinate Legislation Act 1994 , February 2005, published by the Department of Treasury and Finance, State of Victoria 2005, page 5-13.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

1. INTRODUCTION 1.1 Background

Victoria has approximately 673 shipwrecks scattered around its coastline and within its bays and estuaries. Of these, 259 are situated in State waters, and 187 are currently protected by the provisions of the Heritage Act 1995. Historic shipwrecks and their relics are an extremely important component of Victoria’s cultural heritage. They provide recreation, tourism, education, and research opportunities to a wide client base. The nature of their occurrence as often unplanned events ensures that, undisturbed, they provide a valuable insight to the past.

The romance associated with the sea and shipwrecks, and images of treasure for the taking, have unfortunately resulted in the loss of much of the information that could otherwise have been obtained. The unlawful and irresponsible removal of artefacts from shipwrecks by a small minority of divers, without appropriate recording, destroys the context of those artefacts and hence the greater part of their archaeological value. More importantly, a near equilibrium is reached between the wreck and its environment over many years and the rate of physical deterioration becomes extremely low. Fresh disturbances to the wreck or its artefacts can greatly accelerate the deterioration processes and, as a consequence, may cause irretrievable losses of both the objects and the information they can provide.

The information preserved in archaeological sites often reveals details not found in historical records. Shipwrecks by their nature as accidental events provide for a very candid archaeological record. Illegal behaviour which, for obvious reasons has not appeared in historical documents may be revealed by careful archaeological investigation. An excellent example of this in Victoria’s waters is the wreck of the William Salthouse which sank in Port Phillip in 1841 after hitting a reef. The vessel had just arrived from Canada. Victoria was known at that time as the Port Phillip district and was governed as a colony of Britain. British law forbade trade to the Australian colonies by any country other than Britain. Archaeological investigation of the wreck of the William Salthouse revealed it was full of trade goods. It appears the intent of the vessel’s voyage, carrying a speculative cargo was a blatant attempt to contravene these laws.

Disturbance to wrecks is often brought about by the irresponsible actions of divers actively searching for valuable relics and souvenirs. It may also occur, however, when a number of divers visit a site for quite legitimate recreational and educational purposes. If the site is particularly susceptible to erosion, the combined actions of their fins and other swimming movements may raise sufficient quantities of the surrounding sediments to alter the fragile physical stability of the site and initiate erosion processes. Other causes of disturbance to shipwrecks include anchors of small boats dragging through the shipwreck remains when the boats are moored on sites in areas of high tidal flow; commercial fishing operations; and construction or maintenance of port facilities impacting on the sea bed.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

In some circumstances, public safety issues may also necessitate a restriction of the community’s rights to access a historic shipwreck site. These restrictions may need to be applied generally to all potential users of the site or, alternatively, they may need only to be directed to specific classes of users according to the nature of the threat to safety.

It is the responsibility of maritime heritage managers to protect and record historic shipwrecks, and also to ensure, wherever possible, that they can be accessed, enjoyed and appreciated by the widest possible community spectrum.

1.2 The Regulatory Framework

Historic shipwrecks and their relics were first protected when the Commonwealth enacted the Historic Shipwrecks Act 1976. This was enacted to deal with attempts by private salvors to recover coins and other valuables from the seventeenth century Dutch shipwrecks on the Western Australian coast. The Historic Shipwrecks Act 1976 allowed the Commonwealth to declare historic any shipwrecks and relics located in Australian waters, including the external water of the States and Territories below the low-water mark. Routine administration of this Act is delegated to the States and Northern Territory.

In Victoria, the use of explosives by divers on the Loch Ard at Port Campbell in the 1960s created a public outrage and this significant shipwreck was subsequently afforded the protection of the Commonwealth Act. Victoria has 414 recorded shipwrecks that fall within the jurisdiction of the Historic Shipwrecks Act 1976 .

The Historic Shipwrecks Act 1981 (Vic) extended protection to the State’s historic shipwrecks in Port Phillip, Westernport and Corner Inlet, as well as those located in enclosed bays and inland waterways. The wreck of the City of Launceston , located approximately ten kilometres off Portarlington in Port Phillip and relatively undisturbed, was the first shipwreck to be declared historic under the State Act. The Act was repealed and replaced with almost identical provisions included in Schedule 5 of the Heritage Act 1995. This Act is administered by the Department of Sustainability and Environment through Heritage Victoria. A total of 259 recorded shipwrecks fall within the jurisdiction of the State Act.

The Act can declare an area in Victorian waters as a protected zone of up to 100 hectares. The Commonwealth Act allows for protected zones in Commonwealth waters of up to 200 hectares in size. The purpose of these zones is to protect historic shipwrecks or historic relics which are particularly vulnerable to looting or other physical disturbance or to ensure the safety of the public. Of the almost two hundred wrecks currently protected under the Victoria’s Heritage Act, six are protected by Historic Shipwreck Protected Zones. A seventh Historic Shipwreck Protected Zone for the PS Clonmel exists under the Historic Shipwrecks Act 1976. This is because the PS Clonmel wreck is in Commonwealth waters.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

The following sections of the Act make it an offence for a person to carry out certain actions with respect to a historic shipwreck relic from Victoria :

Section 110(1) A person must not remove any article being, or being part of, a historic shipwreck or being a historic shipwreck relic from Victoria otherwise than in accordance with any terms and conditions of a permit issued by the Executive Director .

Section 111(1) A person must not, without lawful authority- (a) take , destroy, damage, remove, disturb or otherwise interfere with any historic shipwreck or historic shipwreck relic ; or (b) buy, offer to buy, agree to buy or offer or agree to barter or exchange any historic shipwreck or historic shipwreck relic ; or (c) possess a historic shipwreck or historic shipwreck relic ; or (d) dispose of a historic shipwreck or historic shipwreck relic .

Section 112(1) A person must not, without authority or reasonable cause, possess on or near a historic shipwreck or historic shipwreck relic - (a) any salvage or recovery equipment or any equipment that could be readily adapted or used for the salvage or recovery of the historic shipwreck or historic shipwreck relic ; or (b) any explosives, instruments or other equipment that could be used to damage or interfere with the historic shipwreck or historic shipwreck relic .

Section 113 of the Act allows a person to make application for a permit for exploration or recovery of historic shipwrecks and historic shipwreck relics.

The Regulations set the fees for permits required under the Act and incorporate various administrative measures necessary for the efficient implementation of the Act. The Regulations will expire on 25 August 2007 under the sunsetting provisions of the Subordinate Legislation Act 1994.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

2. NATURE AND EXTENT OF THE PROBLEM 2.1 Background

Historic shipwrecks and their relics provide recreation, tourism, education, and research opportunities to a wide client base. They form a very significant part of the State’s cultural heritage.

In Victoria alone, recreational diving is estimated to contribute between $50m - $70m 2 per annum to tourism business incomes. The State’s shipwreck resource is a major diving attraction due to the following: • The Underwater Shipwreck Discovery Trail enhances recreational diving opportunities and educates the diving public on the significance of the maritime heritage resource, while land-based tourism is provided for by initiatives such as the Great Ocean Road Shipwrecks Trail and the Port Albert Heritage Trail.

• The popular Heritage Council Victoria website www.heritage.vic.gov.au provides interactive maritime heritage pages.

• A large and unique collection of shipwreck related items is stored by Heritage Victoria. Public access is provided through guided tours and volunteer laboratory positions. The annual 'Archaeology Week' is a program of talks and displays providing information to the interested public about archaeology including Victoria's maritime archaeology.

• Specialised training is provided to interested individuals wishing to become more involved with shipwrecks and their preservation. The internationally recognised Nautical Archaeology Society (NAS) Training Course is licensed to the Australasian Institute of Maritime Archaeology (AIMA) in Australia. It is a four part, progressively intensive course, beginning with a basic introduction to maritime archaeology for interested members of the public – divers and non- divers. Since the AIMA NAS program started in Victoria in 1998 more than 150 people have graduated from the Part I courses. Five Part II courses have been conducted and students involved or graduated from this level have gone on to research shipwrecks and locate undiscovered sites. These courses have exposed divers and other interested people to the many shipwrecks located in Victoria, and they have also renewed interest in diving on some of the Protected Zone wrecks, particularly the William Salthouse . The AIMA/NAS training program enables divers to participate in fieldwork conducted by Heritage Victoria.

2 Source: Channel Deepening Project Environment Effects Statement: Tourism and Recreation Study Initial and Residual Risk Assessment Report 23/06/2004, Section 5.2, Prepared by Sinclair Knight Merz Pty Ltd (written permission obtained): 5.2 Diving Anecdotal evidence suggests that there are at least 20,000 recreational divers using the Bay each year and it could be as high as 30,000. A significant proportion of these could be international visitors, anecdotally up to 25% or more. There is also a strong and growing interest from schools. Discussions with the industry suggested that the industry could be worth at least $50 million a year and possibly as high as $70 million.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

• Partnerships between Heritage Victoria and other agencies responsible for maritime heritage such as Parks Victoria through its Marine National Parks and sanctuaries Program, has lead to a greater tourism focus and understanding of shipwrecks.

• A media officer is employed by the Heritage Council of Victoria to promote and encourage effective media attention for Victoria’s non-indigenous cultural heritage.

• Heritage Victoria has encouraged engagement with the public by producing eighteen publications about Victoria’s historic shipwrecks in the last 10 years.

• Heritage Victoria has created a number of exhibitions for venues near particular wrecks or as travelling displays. These exhibitions allow people to see items from the wrecks, view images and learn about the stories without having to be divers. Victoria also has several maritime museums which cater to the interested public.

Shipwrecks are a tangible connection with past events; in many cases they are inextricably linked with a particular community’s historic and social development. They are a cultural heritage resource that provides a unique opportunity to investigate past human lifestyles using archaeological techniques. Victoria’s shipwreck resource has the potential to contribute to the knowledge of history and development of the society. In addition, because shipwrecks occur at a known time, their contents can be extremely useful as references for dating other artefacts and collections. Many historic shipwrecks have become artificial reefs providing habitats for a wide array of marine flora and fauna. They provide excellent opportunities for scientific research as well as for recreational fishing and photography.

2.2 Threats to Historic Shipwrecks

Whether it is brought about by natural environmental forces or by human action, the single greatest threat to shipwrecks is disturbance.

The impact of mechanical environmental factors such as wave action, tides and currents is greatest when the wreck event is recent. Large exposed structures provide the greatest resistance to such forces and may quickly be destroyed as a ship breaks up. With time, the remaining structures present less of a barrier to these physical forces and usually become substantially protected by the collection of sands and sediments around them. Disturbing the physical environment may re-open the structure to the types of threats posed by mechanical environmental factors.

Corrosion of ferrous metals on shipwrecks occurs primarily due to the presence of dissolved oxygen in the water. When the wrecking event is recent the rate at which oxidation proceeds is at its highest. The quite rapid development of protective concretions and accretions on the object in the marine environment, or its burial in the sedimentary layer, causes the level of oxygen present to drop to extremely low levels and a near equilibrium can be established over time. Removing the concretions or accretions,

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 or removing the protective sedimentary covering, re-exposes the object to accelerated corrosion rates.

Timbers are highly susceptible to attack by many marine organisms in aerobic (oxygen- rich) conditions. Timber gains its structural strength from the presence of lignin in the cell walls, but this complex polymer is water soluble and “dissolves out” when the timber is immersed for long periods of time. Thus, like ferrous metals, shipwreck timbers are often largely protected by the presence of concretions, accretions or sediments and removal of these protective coverings re-exposes the timber to rapid degradation or attack.

Concretions themselves are also of importance in the investigation of a shipwreck. Even if the enclosed object has completely disappeared, due to factors such as corrosion or attack by marine organisms, the imprint of that object can be clearly preserved on the internal surface of its encapsulating concretion. Conservators trained in the process are often able to preserve these impressions.

Looting Much of the looting of shipwrecks that continues to occur can be attributed to widely held, but erroneous, perceptions that the ‘treasures’ of a shipwreck are there for the taking: a ‘finders, keepers’ myth that denies the property rights of others and the cultural rights of the greater community. It can be readily appreciated that divers looting a shipwreck site will not only reduce the intrinsic value of the site by removing artefacts, but they will almost certainly also cause major disturbances and hence an acceleration of the deterioration processes affecting the artefacts remaining at the site.

In 1993 the Commonwealth declared a nation-wide amnesty for people and organisations illegally in possession of shipwreck artefacts. In Victoria over 200,000 items were declared. It has become clear through personal communications and observations in the field by Heritage Victoria staff that this figure is only a sample of what still remains undeclared in private collections.

The trade in antique bottles and other artefacts from shipwrecks continues despite education and enforcement programs which have occurred other the last twenty years. Evidence for this trade is seen in internet selling and buying, items appearing for sale in charity shops and with antique dealers. It is common for the items to be labelled and described as being shipwreck artefacts. Websites for dive clubs occasionally promote diving in Victorian waters for the purpose of collecting mementos. As recent as August 2005 a report was verified regarding old bottles labelled as local shipwreck artefacts were being sold though a charity outlet in a coastal Victorian town.

Given the dynamic nature of some shipwreck sites, with features and articles being periodically covered and uncovered through sand and vegetation movement, it can be difficult to ascertain whether a site has had human interference. An example of this is the site of the PS Clonmel which lies in shallow water on the seaward side of a migrating sand bar. Storms or prevailing conditions can cause scouring and exposure of the artefacts or cover them completely. Most wreck sites experience variations in coverage and visibility to some extent making monitoring difficult. These factors, coupled with the

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 often rare opportunities for staff to visit many of the sites, means it is very difficult to ascertain whether historic wrecks have been subject to human interference.

Heritage Victoria, in collaboration with the Victoria Police, has conducted several successful raids on private premises to locate undeclared shipwreck artefacts. The most recent raid by Victoria Police and Heritage Victoria staff and subsequent prosecution was in late 2005. In early 2006 the Federal Police conducted a raid on several Melbourne based divers suspected of taking and not declaring artefacts from Victoria’s historic shipwrecks.

Factors which may potentially encourage and aid the illegal removal of artefacts from historic shipwrecks include the increasing value of old artefacts, improved diving technology providing greater access to deeper wrecks and improved and affordable technology for scanning the sea floor. It should be noted that deeper wrecks are often well off-shore and are currently impossible to supervise. These wrecks are also mostly unsalvaged and have not been subject to looting and therefore are potentially of high cultural value or, conversely, very attractive to treasure hunters.

There have been nine infringement notices issued in relation to entering a protected zone without a permit since penalty infringement notices were introduced in 2003. Also, nine official warnings were recorded for illegal entry into a protected zone. All of these occurred between 1996 and 2006. There are also court cases pending.

There is no doubt that historic wrecks remain a source of artefacts despite a high level of understanding by the diving community about the potential legal repercussions. The small number of people who engage in this behaviour should not prevent the larger community of responsible divers from having access to these places. The essential ingredients of successful heritage management are a delicate balance between protection and community ownership. Controlling access to historic shipwrecks through rules rather than prohibition assists this balance. Regulations therefore are a valuable tool for the fair administration of Victoria’s historic shipwrecks.

Removal of objects There is another aspect of diver disturbance which is more subtle, but even more destructive of the archaeological value of the shipwreck. The removal of objects from the site, or the relocation of the site, takes them out of context and destroys much of the archaeological information they could otherwise provide. These extrinsic values cannot be equated in simple monetary terms and represent the true heritage worth of the articles.

Environmental disturbances may also be brought about by other factors such as the dragging of anchors by vessels moored over the shipwreck; the conduct of fishing operations, and the construction of facilities including marinas and breakwaters.

Despite a significant and ongoing education program directed to diving, boating and fishing groups, as well as to the wider community, and despite also the extensive national publicity given to the 1993 Amnesty in which members of the community holding undeclared artefacts were able to register those artefacts without fear of prosecution, a small number of irresponsible people continue to engage in actions which constitute a major threat to our maritime heritage or which are contrary to public safety policies.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

2.3 City of Launceston Historic Shipwreck Protected Zone

The wreck of the SS City of Launceston is an outstanding archaeological site, an irreplaceable heritage asset and potentially a tourist destination capable of attracting large numbers of diving visitors. Wrecked in 1865 in Port Phillip whilst steaming on its regular route to Launceston in Tasmania, the vessel was struck by another steamer and sank in less than an hour. All aboard were rescued, however, very little else was salvaged. Attempts to raise the vessel soon after its sinking were unsuccessful. Personal belongings, ships fittings and cargo remain buried on this site. The wreck lies in approximately 20 metres of water and is very accessible using basic SCUBA equipment.

To archaeologists the wreck is a treasure trove of evidence into the human condition in the 1860s. The thick silt on the site has preserved many items which would otherwise not have survived. It is predicted that many delicate items such as personal effects are surviving on the site, preserved by the undisturbed airless silty conditions under surface debris. The overall preservation of the site has the potential to reveal details on social strata and living standards in the nineteenth Century not recorded in historical documentation.

The site is also engaging for the non-archaeologist as many features of the vessel are recognisable and items of interest are scattered across its decks. Sites of this preservation, quality and accessibility are uncommon throughout the world.

Protecting and managing the wreck of the City of Launceston Management of the City of Launceston wreck requires a balance between protecting the heritage values and encouraging a sense of ownership and responsibility within the interested public. Pressure over a number of years from diving groups to open the site for commercial and private purposes has prompted Heritage Victoria to consider management methods of making the site accessible through the permit process. Trial periods of public access are planned for 2006 and, if successful, may become occasional short term events in the future.

A sense of public ownership and responsibility has been actively fostered over recent years by Heritage Victoria’s Maritime Heritage Unit in collaboration with interested amateur groups and individuals. (The Maritime Heritage Unit has educated over one hundred and fifty participants in the internationally recognised Nautical Archaeology Society (NAS) progressive training courses under the auspices of the Australasian Institute for Maritime Archaeology (AIMA).) This system encourages the participants to see the value of wrecks as valuable heritage sites requiring protection. The course includes a case study of the City of Launceston.

Heritage Victoria Maritime Heritage Unit often works in partnership with the Maritime Archaeology Association of Victoria. This is an association of active shipwreck diving enthusiasts most of whom have undertaken the AIMA / NAS training course.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

Good working relations and occasional joint fieldwork with other government agencies such as the Search and Rescue, Water Police and Victoria Police have provided positive outcomes with increased surveillance of Protected Zones. The Port of Melbourne Authority and Australian Marine Services Association also enjoys open communication with the Unit. Connections such as these increase the chance of illegal behaviour on the site being reported and responded to.

Public access to the City of Launceston wreck presents a number of issues regarding the cost of management and protection. There will also be an immeasurable cost relating to the potential damage to the site. Administration and surveillance are calculable costs.

Inexperienced divers often struggle with buoyancy control. The result of this lack of skill means some beginners ‘bounce’ on the bottom or grab hold of the wreck in an attempt to maintain position. This can result inadvertently in damage to the wreck.

The immediate issue associated with permitting access to the City of Launceston is the loss of confidentially regarding its position. Currently this is not generally known, however, once the GPS position is placed in the public arena the information will spread quickly, potentially leading to unauthorised visitation.

The cost of potential damage to the site by allowing public access is difficult to measure. The value of the public good returned in opening the site is partially measurable. The cost of administrating access to the site may remain the same as other Protected Zones however, given the number of removable and valuable artefacts on the site, there may be an increase in the cost of administration and surveillance.

The wreck contains many portable items of interest which makes it an interesting dive location but also makes it vulnerable to souvenir collecting. This is a surveillance and enforcement issue. The time and cost of protecting the wreck through surveillance and enforcement must be borne in most part by Heritage Victoria.

Difficulties and costs for dive operators visiting the wreck of the City of Launceston This site presents various difficulties to dive operators. Being central in the Bay it is exposed to all weather conditions. Weather conditions and sea state can change quickly making diving and vessel handling difficult. The site itself is covered in fine silt and visibility can drop to almost zero if this silt is disturbed through divers or sea conditions. Divers may be disappointed with potentially adverse conditions. The main cost to the operators is transporting customers to the site. The City of Launceston wreck is in the middle of Port Phillip Bay and an almost thirty kilometre round trip from the closest point of land. Most other popular Bay wrecks are close to Portsea or Queenscliff and reached relatively quickly by boat. Fuel costs, personnel time and engine time for access to this site would be considerably greater.

2.4 Summary of Problems

The single greatest threat to historic shipwrecks is disturbance. Removing concretions from ferrous metals and timbers removes the protective sedimentary covering and exposes the object to accelerated corrosion rates. The removal of concretions themselves

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 can also destroy the potential to preserve impressions where the enclosed object has disappeared.

Disturbance occurs where a diver wittingly or unwittingly interferes with the shipwreck. Divers looting a shipwreck site reduce the intrinsic value of the site by removing artefacts as well as accelerating the deterioration process by disturbing the site.

Despite a significant and ongoing education program directed to diving, boating and fishing groups, as well as to the wider community, and despite also the extensive national publicity given to the 1993 Amnesty, a small number of irresponsible people continue to engage in actions which constitute a major threat to our maritime heritage or which are contrary to public safety policies. There have been nine infringement notices issued in relation to entering a Protected Zone without a permit. Also nine official warnings were recorded for illegal entry into a protected zone. All of these occurred between 1996 and 2006. There are also court cases pending.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

3. THE OBJECTIVES 3.1 Primary Objectives

The principal objective of the proposed Heritage (Historic Shipwrecks) Regulations 2007 is to improve the management of historic shipwreck sites and the cultural material they contain; particularly those shipwrecks which are located within registered Protected Zones because of their exceptional cultural significance or vulnerability to disturbance, or for reasons of public safety.

3.2 Secondary Objectives

A secondary objective of the Regulations is to provide an administrative framework to enable the efficient operation of the Act in so far as it applies to historic shipwrecks and historic shipwreck relics.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

4. THE PROPOSED REGULATIONS 4.1 Legislative Power

The proposed Regulations are made under sections 185, 186 and 187 of the Heritage Act 1995 . They revoke and replace the Heritage (Historic Shipwrecks) (General) Regulations 1996.

4.2 Affected Parties

Those affected by the proposed Regulations include: • The dive industry including individual divers; • Commercial fishing industry; • Tourism industry; and • Recreational boaters.

4.3 The Proposed Regulations

The proposed Regulations are substantially the same as the current Heritage (Historic Shipwrecks) (General) Regulations 1996. Some minor changes have been made to the formatting but the only substantive changes are to the fees and in particular the addition of two new classes of fees.

The following is a discussion of each proposed regulation and its anticipated impact on affected parties.

4.3.1 Proposed regulations 1-5 include objectives, authorising provisions, commencement revocation and definitions.

Impact These are essentially administrative regulations that have no impact on affected parties.

4.3.2 Proposed regulation 6 – Activities prohibited within protected zones This regulation prohibits a person from a range of activities in all six protected zones currently registered under the Act unless the person has a permit. The prohibitions relate to activities that either bring about, or have high potential to bring about, significant disturbance to a historic shipwreck and historic shipwreck relics contained in a protected zone. The prohibited activities are those which are less likely to result in unacceptable disturbance to a site or breach of public safety standards in all circumstances. The application of the regulation is limited accordingly.

The activities that the regulation prohibits except with a permit include: • entering a protected zone; • mooring or using a ship in the protected zone;

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

• trawling, fishing or diving or undertaking any other underwater activity within a protected zone; • parking or using a vehicle in a protected zone; • bringing into or using within any protected zone equipment which is constructed or adapted for the purpose of diving, salvage or recovery operations; • bringing into or using within any protected zone any explosives or equipment, instruments or tools constructed or adapted for the purpose of cultivating, mining, quarrying, dredging or excavating land including land covered by water; or • causing a ship or other vehicle carrying any of these items to enter into or remain in any protected zone.

Impact Section 111 of the Act prohibits a person from certain activities in relation to historic shipwrecks and historic shipwreck relics as follows: (1) A person must not, without lawful authority- (a) take, destroy, damage, remove, disturb or otherwise interfere with any historic shipwreck or historic shipwreck relic; or (b) buy, offer to buy, agree to buy or offer or agree to barter or exchange any historic shipwreck or historic shipwreck relic; or (c) possess a historic shipwreck or historic shipwreck relic; or (d) dispose of a historic shipwreck or historic shipwreck relic. Penalty: In the case of a natural person: 2400 penalty units or 5 years imprisonment or both. In the case of a body corporate: 4800 penalty units.

Section 112 of the Act makes it an offence to be near historic shipwrecks with certain equipment as follows: (1) A person must not, without authority or reasonable cause, possess on or near a historic shipwreck or historic shipwreck relic- (a) any salvage or recovery equipment or any equipment that could be readily adapted or used for the salvage or recovery of the historic shipwreck or historic shipwreck relic; or (b) any explosives, instruments or other equipment that could be used to damage or interfere with the historic shipwreck or historic shipwreck relic. Penalty: In the case of a natural person: 120 penalty units or 12 months imprisonment or both. In the case of a body corporate: 240 penalty units

This regulation extends the Act’s provisions to protected zones. It denies access to the protected zone by all members of the general community unless by virtue of a permit.

The proposed regulation affects persons who are operating boats or fishing, as well as swimmers and divers. It impacts primarily on salvors and divers who may be liable, under the provisions of section 111 of the Act, for any disturbance to the historic shipwreck or shipwreck relics arising from the prohibited activities and, under section 112, for possessing the prohibited equipment or explosives near any historic shipwreck or historic shipwreck relic.

Heritage Victoria provides education on the location of zones and it is the responsibility of commercial and other vessel operators to be adequately informed of the location of

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 zones. Details are contained in the ‘Notice to Mariners’ and instructions are also detailed on charts. In some instances Protected Zones are marked with warning signage.

The impact of the regulation on the commercial fishing industry is minimal. The total area of the existing registered protected zones is 332 hectares. This is less than 0.2 per cent of the area of Port Phillip alone (188,000 hectares). In addition, most of the registered protected zones are in locations where commercial fishing operations do not usually occur because of the physical environment in which the wreck is situated, and most commercial fishing operators carefully avoid shipwrecks because they constitute a significant hazard to the expensive gear deployed.

A penalty of 50 penalty units (currently $5,240) for a breach of the regulation is imposed.

4.3.3 Proposed regulation 7 - Activities prohibited near any historic shipwreck or in any protected zone This regulation prohibits a range of activities which would adversely impact articles and equipment associated with the management of any shipwreck, including one situated within a protected zone. The regulation prohibits a person, without lawful authority, from knowingly moving, removing, damaging, altering or otherwise interfering 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.

The proposed penalty for breach of this regulation is 20 penalty points (currently $2,096).

Impact This regulation places an onus on all persons to not interfere with equipment used to identify the site of a historic shipwreck. This facilitates effective implementation of the Act and proposed Regulations by ensuring the public and commercial operators are aware of the locations of the protected zones and associated matters. To this extent the regulation facilitates the effective administration of the Act and the proposed Regulations.

4.3.4 Proposed regulation 8 – Fees for permits This regulation establishes the classes of fees and levels of fees for permits to engage in various activities which are otherwise prohibited under the Act or by the shipwreck regulations. The proposed fee schedule including the fees under the current Regulations is included in the following Table:

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

Class of Type of permit activity Current Proposed application Fee Fee Class 1 Enter a protected zone for recreational, scientific or educational $20 $50 purposes Class 2 Enter a protected zone for commercial purposes not likely to $100 $300 cause disturbance, damage or other interference with the historic shipwreck or historic shipwreck relics Class 3 Enter a protected zone for recreational, scientific or educational - $250 purposes where the permit requires the use of provided moorings or other facilities as specified in the permit Class 4 Enter a protected zone for commercial purposes where the - $500 permit requires the use of provided moorings or other facilities as specified in the permit Class 5 Enter a protected zone for commercial purposes likely to cause $1000 $1300 disturbance, damage or other interference with the historic shipwreck or historic shipwreck relics Class 6 Take, disturb, remove, damage, destroy of otherwise interfere $1000 $1300 with a historic shipwreck or historic shipwreck relics Class 7 Possess or dispose of otherwise than by trade a historic $20 $20 shipwreck of historic shipwreck relics Class 8 Remove from Victoria or trade in a historic shipwreck or $100 $100 historic shipwreck relics Class 9 Possess equipment, instruments or explosives of a kind referred $500 $600 to in section 112 of the Act on or near a historic shipwreck or historic shipwreck relics

Impact Section 113 of the Act provides that a person may apply for a permit but when doing so must pay the prescribed fee. This regulation therefore enables effective administration of the permit system that allows controlled access to protected areas/zones. There are approximately twenty permits issued annually and no fees have been charged under the existing Regulations. The fees were waived (see under proposed regulation 9) because the applications related to the activity being of a conservation or research nature in line with the objectives of the Act. Most of the recent visits to the William Salthouse Protected Zone were as an adjunct to the AIMA (Australasian Institute of Maritime Archaeology) NAS (Nautical Archaeology Society) training courses.

While the payment of a fee impacts on the applicant the requirement to do so is a requirement of the Act. The level of fees is determined on the basis of a cost recovery policy of the Government. This ensures the beneficiary of the service or activity pays for the cost of the service.

4.3.5 Proposed regulation 9 – Waiver of a fee for a permit This regulation prescribes the circumstances in which a fee for a permit, which would otherwise be payable, may be waived by the Executive Director, Heritage Council Victoria.

Impact These circumstances are defined to ensure that persons who act in accordance with the overall objectives of the Act, particularly the objectives established by section 1, are not then unreasonably penalised by a requirement to pay permit fees. These activities include

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 conservation, maintenance, repair or restoration of the historic shipwreck, cultural, historical or scientific research or for education purposes. As indicated earlier, fees for all permit applications to date have been waived.

4.3.6 Proposed regulation 10 – Notification of discovery of shipwrecks or relics This regulation prescribes the form of the notice which any person finding the remains of a ship, or an article associated with a shipwreck, must give to the Executive Director.

Impact This regulation places what is essentially an administrative requirement on a person who is then subject to a penalty under the Act for failing to comply. The notice requires information that is essential to ensure the future re-location of the shipwreck, its identification and investigations. Any onerous nature of the requirement is ameliorated to some extent by the provision for a reward prescribed in regulation 11.

4.3.7 Proposed regulation 11 - Reward This regulation prescribes the amount of reward ($50,000) which may be payable to a person who first notifies the Executive Director of the finding of the remains of a shipwreck, or of an article associated with a shipwreck.

Impact There is no adverse impact associated with this regulation as it provides an incentive for persons who find a shipwreck to notify the Executive Director.

4.4 Summary of Impact Analysis

The proposed Regulations prohibit a range of activities in protected zones unless without a permit. A permit can be obtained providing the applicant can satisfy the Executive Director that the proposed activities will not damage historic shipwrecks or relics. The impact therefore of these regulations is on those people who, either wittingly or otherwise, intend to damage historic shipwrecks.

The proposed Regulations also provide for fees that must be paid by an applicant for a permit. This imposes a cost on the applicant. The proposed Regulations, however, provide a waiver for the payment of fees where the activity to be pursued is in accordance with the Act. The direct impact therefore of the fees regulation will primarily be felt by people who wish to undertake tourism or personal interest activities on historic shipwrecks.

4.5 Enforcement of Proposed Regulations

Enforcement of the proposed Regulations will primarily be undertaken by the Department of Sustainability and Environment and Heritage Victoria whose staff undertakes an inspectorial role under heritage legislation. Other agencies with a role in enforcement include the Victoria Police and the Australian Customs Service. Members of Victoria Police are inspectors under the Act, and officers of all agencies must be individually appointed.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

There have been three magistrate's court prosecutions under the existing Heritage (Historic Shipwrecks) (General) Regulations 1996 relating to the illegal entry to a restricted shipwreck zone - Cerberus (issued prior to infringement notices coming into existence under the Heritage (Infringement Notice) Regulations 2002).

Nine (9) Infringement Notices have been issued relating to illegal entry to a protected shipwreck zone. Each case finalised was successfully prosecuted and there are two outstanding court cases. Also, nine official warnings were recorded for illegal entry into a protected zone in the DPI/DSE Offence Management database. All of these occurred between 1996 and 2006. There are also court cases pending.

4.6 Consultation

Consultation with the following key stakeholders was undertaken as part of the RIS process: • The Municipal Association of Victoria for circulation to relevant local government centres; • Victoria’s Recreational Fishing Peak Body; • Parks Victoria; and • Heritage Council Victoria. • Maritime Archaeology Association of Victoria • Australian Marine Science Association (Victoria) • Museum Victoria • Victoria Police Search & Rescue Squad • Royal Historical Society of Victoria • Maritime Museums of Victoria • Fisheries Victoria • Port of Melbourne Corporation • Historic Places, Dept Sustainability & Environment Maritime Operations, • Australian Maritime Safety Authority • Dive Industry Victoria Association • Scuba Divers Federation of Victoria • Commercial Diving Industry

The Subordinate Legislation Act 1994 prescribes a minimum period of 28 days for consultation on Regulatory Impact Statements and draft Regulations.

4.7 Interstate Legislation

There is a consistency around Australia in the administration and regulation of access to historic shipwrecks, in particular protected zones. The Commonwealth regulations, which are administered by the responsible state authorities, are used in regard to wrecks within protected zones in Commonwealth waters and very similar versions have been adopted by South Australia and Victoria for state administered protected zones.

Most developed countries including the USA, Canada, New Zealand and the UK have

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 permit systems relating to the disturbance of their historic shipwrecks and heritage legislation with penalties applied for illegally damaging or removing items from those wrecks.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

5. COSTS AND BENEFITS OF PROPOSED REGULATIONS 5.1 Analytical Framework

The purpose of this section is to assess the relative costs and benefits of the proposed Regulations for the Victorian community. The RIS needs to assess whether: • The expected benefits of the proposed Regulations are greater than the expected costs; and • The net benefit of the proposed Regulations exceeds the net benefits of a feasible alternative.

Proposed Regulations 1-5 are drafting matters that do not have significant impact on affected parties. Therefore, they are not subject to specific assessment here. Proposed regulation 9 waives the payment of fees for a permit where the applicant intends to undertake activities that are aligned to the objectives of the Act. As this does not impose costs it will not be subject to this assessment. Proposed regulation 11 prescribes an amount of a reward. As this is requirement of section 116 of the Act and does not impose costs this regulation will also not be subject to the assessment. Similarly, proposed regulation 10 provides for a form to be used advising of a finding of a shipwreck. This also does not impose costs and therefore is not subject to analysis here.

The remaining regulations: • prohibit activities within protected zones (proposed regulation 6). This extends and clarifies section 113 of the Act in terms of entering or bringing into a protected zone diving, salvage or recovery equipment, or explosives for mining or quarrying or dredging. This regulation effectively restricts entry to a protected zone without a permit; • prohibit activities near any historic shipwreck or in any protected zones (proposed regulation 7). This prohibits a person from moving or removing or damaging and equipment situated within 100 metres of any historic shipwreck. This extends section 110 of the Act that prohibits a person from removing ‘any article being, or being part of, a historic shipwreck or being a historic shipwreck relic from Victoria otherwise than in accordance with any terms and conditions of a permit issued by the Executive Director’; and • impose fees (proposed regulation 8).

As discussed earlier each of these restrictions is proposed for essentially the same reason: to protect the cultural value of historic shipwrecks and historic shipwreck relics.

The proposed Regulations replace sunsetting Regulations. Therefore it is necessary to assess the proposed Regulations against the ‘base case’, that is, what would be likely to occur were the regulations not re-made. That is, benefits and costs are compared with a notional un-regulated scenario rather than being compared with the benefits and costs attributable to the current Regulations.

As it is very difficult to assign quantitative costs and benefits to most of the proposed regulations a balanced scorecard approach is adopted. This assigns a score depending on the assessed impact of the proposal – a negative score (-1 etc) is assigned where the

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 impact is negative/undesirable/poor, 0 where there is no impact, and positive (+1 etc) where the impact is desirable, good. As each of the regulations is considered generally of equal importance no weightings have been assigned to the assessment of each.

This rating is applied to the assessment of alternatives in the next section as well.

5.2 The Base Case 5.2.1 No specification of activities prohibited within protected zones (proposed regulation 6) Enforceability and compliance The proposed regulation clarifies the ‘without lawful authority’ prohibition of section 111 of the Act and brings this authority under the permit system. Without this salvors and divers are open to prosecution under that section. A lack of specification makes enforcement of the Act’s provisions cumbersome and more complex and accordingly imposes unnecessary additional costs.

No restriction on access to protected zones Without the proposed regulation it would be necessary to rely on the Act’s provisions to ensure protection of historic shipwrecks. That is, there would be no particular protection for the most vulnerable shipwrecks that have to date been devoid of disturbance.

Without this regulation there is no direct connection of the Act’s provision concerning protected zones which makes enforcement of the Act’s provisions very cumbersome and prosecution of offences extremely difficult.

The two-pronged approach to protecting shipwrecks and relics was devised recognising that many shipwrecks had already been looted and therefore the ships carcass was all that remained. The broad provisions (sections 111 and 112) of the Act were established to deal with these. They are intended to ensure that the then existing state of the shipwreck was not further degraded by unreasonable disturbance. The second level of protection through the construction of a ‘protected zone’ was for those shipwrecks that had effectively not been despoiled or looted and were, to all intents and purposes, in pristine condition. These very special cases are the most vulnerable to illegal activity.

No regulation of access to protected zones could have potentially significant negative effects because the whereabouts of the particularly vulnerable historic shipwreck or relic would still be publicly available through the Act’s protected zone register. Notwithstanding the Act’s provisions that make it an offence to interfere with a historic shipwreck, this would encourage looting of these prized artefacts.

Impact on dive tourism industry It is anticipated that without the proposed regulation the dive tourism industry currently valued at $50-$70 million annually would be seriously affected due to the gradual but lasting deterioration of the shipwrecks and relics by looting or other un-regulated visitation. The further deterioration of the historic shipwrecks and relics would impact on tourist interest in these sites with corresponding effects on the dive tourism industry.

Impact on community

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

Without the proposed regulation the additional level of protection that it provides to vulnerable historic shipwreck sites and historic shipwreck relics - the community’s cultural heritage - would be lost as it is expected that historic shipwrecks would be placed at greater risk of damage.

5.2.2 No specification of activities prohibited near any historic shipwreck or in any protected zone (proposed regulation 7) Without this regulation it would not be a specific offence for a person to move or damage a facility associated with a historic shipwreck site in any protected zone. Therefore, a person found to be undertaking such activities would need to be charged under general civil or criminal offence legislation. This is both time consuming and an ineffective approach to protection of historic shipwreck sites.

5.2.3 No prescription of fees (proposed regulation 8) The permit provision of section 113 of the Act requires that a permit application must be accompanied by the prescribed fee. It is arguable that without a fee being prescribed the permit system would become invalid or inoperable.

Not prescribing fees would mean that no revenue would be raised to recover funds expended in the administration of the permit system under the Act. It would also mean no revenue was generated to recover capital expenditure for those particular sites where mooring facilities have been built. While no fees have been charged for permits to date (applicable fee has been waived because the application has had scientific or educational merit) it is anticipated that they will be charged in future recognising the various commercial and other uses being adopted by people and organisations to utilise access to protected zones. In these circumstances a lack of revenue through fees could apply pressure on the budgetary arrangements of Heritage Victoria and impact on the provision of education programs or continuation of the provision of infrastructure on certain sites.

On the other hand, no prescription of fees would mean that no fees would be levied. This would bring economic benefits for all parties who desire to have access to historic shipwrecks through the permit system. However, as indicated above, if the permit system was inoperable no access to the sites would be legal.

5.2.4 Reduced administration and enforcement Notwithstanding the problems associated with a lack of clarity and coverage of the Act’s provision referred to earlier, no Regulations would involve reduced administrative and associated enforcement costs by virtue of there being reduced specification of regulations. The benefits of this, however, are likely to be traded off against the need for greater enforcement associated with the Act.

5.3 Benefit/Cost Impact Assessment of Proposed Regulations 5.3.1 Specification of activities prohibited within protected zones (proposed regulation 6) Improved enforceability and compliance of Act’s provisions Specification of the prohibition of these activities makes the objectives of the Act more readily enforced and complied with by relevant industry and other parties. For example, without specification a ship with salvage equipment can be located in a protected zone,

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 that is, adjacent to the area of a shipwreck without transgressing the Act. Enforcement in this case must come from apprehending the parties in the process of disturbing the shipwreck. This has deleterious effects for the shipwreck and is a cumbersome and costly enforcement action. Specification of an area, that is, in the protected zone, in which a shipwreck or relic resides makes for much more effective enforcement.

Similarly, fishing vessels and others can be assured that they will not unwittingly place their ship in a position which would bring it under notice from enforcement bodies. Benefit/cost impact +2

Restriction on access to protected zones Dive tourism and commercial fishing industries The incidence of any negative impacts associated with the restriction on access is greatly constrained, and almost negligible, because: • The number of registered protected zones compared to the total number of shipwrecks recorded for Victoria is very small (1%); and • The area of these protected zones is less than 0.2% of the total area of Port Phillip in which they are located.

The restriction imposed on the dive tourism sector as a consequence of the Act’s requirement for registration of protected zones is even less than apparently represented by the 1% of declared sites because: • permits are not needed to dive one of the current protected zones; and • group visits to another occur regularly under permit.

Individuals and businesses There is a potential cost to people and businesses involved in the construction or provision of some facilities in the marine environment, for example, pipelines, cables and private port structures by virtue of the restriction on access. No instance has been identified during the last 25 years where the existence of a registered protected zone has had an identifiable economic cost with respect to the development or maintenance of facilities in the marine environment.

The restriction of the right of an individual to access and engage in various activities within, a protected zone is substantially limited, however, because only a small number of community members are actually ever in a position where they can exercise those rights. The effect of the restriction is even further reduced by the active support of the great majority of those who are most directly affected, but who also enjoy the re- distributive benefits.

Benefits are derived from the exclusion of the public, particularly swimmers and divers, from a shipwreck site. An example of this is the wreck of the HMVS Cerberus at Blackrock. This iron 1860’s steam-powered war ship was scuttled in Half Moon Bay, Port Phillip Bay in 1926 to provide a breakwater. The deck remains above the highwater level and has provided a popular climbing and diving platform for swimmers. It is highly significant on an international scale but lack of funds has seriously restricted the options of protecting and conserving it. Another unfortunate repercussion is that the wreck has become dangerous to visitors as the iron hull is corroding and collapsing. Its Protected

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

Zone status prohibits anyone, including swimmers, from entering the Zone without a permit.

Creating the Protected Zone in this instance is not done purely for the protection of the heritage. The restrictions also minimize the potential public safety hazard and may not only avoid pain and emotional trauma but also may avoid the economic costs of treating and rehabilitating accident victims.

Shipwrecks often have surviving owners, although these are mainly corporations. If the shipwreck constitutes a hazard to public safety that owner may be held liable in negligence for injuries sustained by a visitor to it. Land within the territorial boundary of the State is Crown land, whether or not the land is covered by the sea. If a shipwreck occurs on Crown land and is a hazard to visitors, the Crown may be joined with the owner in a negligence action. Benefit/cost impact +1

Dive tourism industry benefits It is anticipated that benefits will be derived from the proposed Regulations in general and this regulation in particular, by the dive tourism industry. This occurs because the fragile sites which may otherwise be completely destroyed by looting, excessive diver visitation or even small anchors dragging from recreational craft are preserved and are therefore remain of interest to tourists.

Improved stabilisation of these sites, either through natural processes or by artificial works can result in controlled access being granted to historic shipwreck sites of outstanding cultural value and interest. This has been the case with respect to the William Salthouse , which is located at the southern end of Port Phillip off Queenscliff where extensive stabilisation works have been undertaken resulting in the site now being open to divers under permit. The site is widely regarded as one of the most interesting dives in the bay.

Dive tourism is a significant contributor to business incomes in Victoria, and a major attraction for divers is the accessible shipwrecks found inside Port Phillip. As indicated earlier, the industry is estimated to generate $50m to $70m annually.

Maritime cultural heritage tourism is centred on a substantial number of maritime museums located around the Victorian coast. It is also represented in many other forms such as the Great Ocean Road Historic Shipwrecks Trail, Port Albert Heritage Trail and ‘Victoria – A Shipwreck Showcase’. Although the intrinsic or asset value of the artefacts and historical ‘treasures’ cannot be reliably estimated, and there is generally no functional characteristic associated with these articles on which to base a deprival value, they do constitute a great cultural wealth which, once lost, is irreplaceable.

The remains and artefacts located in protected zones are principally those that possess the highest heritage values and are the most valuable. They must be valued accordingly.

Benefits are also derived by fisheries due to enhanced research opportunities. This is best illustrated by work undertaken by fisheries research scientists on the City of Launceston . This historic shipwreck is considered to be extremely significant to Victoria. The

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007 scientists were investigating the rates of invasion and biology of introduced tube worms which now threaten Victoria’s shellfish industry but had no time reference from which to work. The density and development of these particular tube worms, Sabella sp ., on the shipwreck were able to be assessed against video of the site taken by Heritage Victoria’s Maritime Heritage Unit staff over a number of years. Because the site was situated within a protected zone, the likely interference of human agents, and a corresponding skewing of results, was at a minimum.

The benefits discussed here are attributable to the Act as well as the existing and proposed Regulations. The benefit/cost rating therefore reflects a discounting to that effect. Benefit/cost impact +2

Societal benefits The main social benefits derived from the proposed regulation relates to the additional level of protection that it, along with other regulations, provide to vulnerable historic shipwreck sites and historic shipwreck relics - the community’s cultural heritage. The proposed regulation seeks to prevent damage of, or destruction to, the most threatened historic shipwrecks in order that their cultural significance is preserved. The proposed regulation also seeks to ensure that any artefacts recovered from them are retained and available for legitimate display mediums for the benefit and enjoyment of the whole community. The extrinsic value of maritime cultural heritage artefacts to which the proposed Regulations apply cannot be calculated in dollar terms but is arguably priceless in terms of their social values.

Societal benefits also arise from the exclusion of members of the public from shipwreck sites where the exclusion is based on public safety considerations. The exclusion will minimise the likely incidence of trauma and suffering as a consequence of any injuries occurring at the site. Benefit/cost impact +2

5.3.2 Specification of activities prohibited near any historic shipwreck or in any protected zone (proposed regulation 7) This regulation makes it an offence for a person to move or damage a facility associated with a historic shipwreck site. This provides for greater awareness among the boating and diving community of their responsibilities in ensuring no harm comes to historic shipwrecks. It also allows for effective administration of the Act and Regulations. Benefit/cost impact +1

5.3.3 Fees Appendix 1 provides an analysis of the statutory framework and policy basis for the proposed fees.

The proposed fees will impact on commercial and educational and scientific parties. As indicated no fees have been levied under the existing Regulations as all applications have been waived under the provisions of the Act. However, it is anticipated that they will be charged in future recognising the various commercial and other uses being adopted by people and organisations to utilise access to protected zones.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

The fees are based on full cost recovery and therefore as beneficiaries pay for the services provided the overall benefit/cost rating is neutral. Benefit/cost impact 0

5.3.4 Administration and enforcement costs In accordance with its responsibilities to administer the Act and the Regulations Heritage Victoria undertakes education programs aimed at: • specific client groups such as recreational divers; and • to the wider community through maritime museums, historical societies, national parks offices, general tourism venues, schools and universities, and the various media.

Communications and public relations staff are employed to facilitate Heritage Victoria’s public information, education and promotion programs. The maritime heritage component of their combined salaries is estimated to cost $40,000 per annum. Materials, publishing and other operating expenses are estimated to cost a further $30,000 per annum. The communications program is supported with specific brochures and other publications, erection of signs and media releases.

The Maritime Unit consists of 3 full-time permanent staff and 1 part-time short-term person

Costs are also incurred by several other agencies whose staff undertakes inspectorial roles under heritage legislation. These agencies include Victoria Police, Parks Victoria, and the Australian Customs Service. Members of the police force are inspectors under the Act, while officers of all other agencies must be individually appointed. Specific compliance costs associated with the proposed Regulations that are incurred by these agencies have not been estimated in this review.

As indicated the above are compliance costs attributable to the administration of the Act as well as the Regulations and proposed Regulations. It is very difficult to separate out the compliance costs attributable to only the two regulations subject to this assessment. Benefit/cost impact -1

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

5.4 Summary of Cost and Benefit Assessment

The following is a summation of the balanced scorecard assessment of the proposed Regulations. The weightings used for the rating are distributed equally for each criterion .

Criteria Benefit/cost Rating

1. Specification of activities prohibited in a protected zone - Improved enforceability and compliance of Act’s provisions +2 2. Specification of activities prohibited within any protected zone - Restriction on access +1 - Dive tourism industry benefits +2 - Societal benefits +2 3. Specification of activities prohibited near any historic shipwreck or +1 in any protected zone 4. Prescription of fees 0 5. Administration and enforcement -1 Total +7

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

6. OTHER MEANS OF ACHIEVING THE OBJECTIVES 6.1 Introduction

These Options are assessed in this section of the RIS as they relate to the preferred Option, the proposed Regulations

6.2 Voluntary Industry Code of Practice – Option 1

Consideration has been given to the potential for the development of an industry code of practice to foster compliance with the Act and to protect historic shipwrecks and relics. This would be in place of the proposed Regulations that prohibit certain activities in protected zones. It is envisaged that the Code would promote no access to protected zones as well as responsible diving in areas open to the general public. Several organisations could con-jointly develop the Code including the Australasian Institute for Maritime Archaeology (AIMA), the Marine Archaeological Association of Victoria (MAAV) and the Dive Industry Association of Victoria (DIVA). The Code would need to be recognised or endorsed by Heritage Victoria as the administering body for the Heritage Act.

The AIMA is a non-profit organisation dedicated to the preservation of underwater cultural heritage, and promotion of maritime archaeology conducted in accordance with internationally accepted ethical standards.

AIMA works closely with and provides advice to the Australian Federal Government (Environment Australia) on policy pertaining to underwater cultural heritage, such as the Australian National Historic Shipwrecks Research Plan, and the UNESCO Convention on the protection of the underwater cultural heritage. Its objectives are to support and undertake scientific research in the field of maritime archaeology within a defined Code of Ethics and to publish the results of this work. It publishes a newsletter, bulletins and special reports and hosts the National Shipwrecks Database.

AIMA has supported the important archaeological investigations on sites including the City of Launceston .

MAAV is an association of divers, historians and archaeologists involved in recording Victoria's maritime heritage. MAAV works closely with HV in researching, surveying, cataloguing, conserving and promoting our maritime past. MAAV members in conjunction with HV have participated in the following state funded projects:

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

• excavation and stabilisation work on the William Salthouse (1824-1841); • excavation of the Australian built Clarence (1824-1850); and • survey work on the P.S. Clonmel (1836-1841), Will of the Wisp , Monumental City (1850-1853), Loch Ard (1873-1878) and of particular significance the City of Launceston (1863-1865) which attracted interstate participation.

DIVA was established to promote the sport of diving in Victoria and to support Victorians involved in the diving industry. From its website (add footnote reference for website) DIVA’s aim is to achieve this by; i) Promoting the benefits of diver training and continuing education; ii) Promoting Victoria as a diving tourist destination nationally and internationally; iii) Encouraging divers to become active and develop responsibility for their diving environment by promoting, underwater clean up events and marine pest collection dives; iv) Educating the public on safety and environmental issues; v) Acting on concerns raised by the public or by those involved with the diving industry that may affect the sport of diving in Victoria; vi) Encouraging those involved with diving activities to operate to high levels of safety standards through the use of the Victorian Code of Practice; vii) Liaison with Government bodies and authorities on marine conservation, environmental issues and other matters that affect the diving industry and the sport of diving in Victoria; and viii) Providing a source of information and assistance to those within the Victorian diving industry.

Assessment of Option Enforceability and compliance As the Code would have no legal force, in the absence of the proposed Regulations there would be no specific legal restriction on access and it would be necessary to rely on the Act’s provisions to ensure protection of historic shipwrecks. That is, there would be no particular protection for the most vulnerable shipwrecks that have to date been devoid of disturbance.

In addition, as the proposed Regulations clarify the ‘without lawful authority’ prohibition of section 111 of the Act and bring this authority under the permit system, without this salvors and divers are open to prosecution under that section. The continued lack of specification makes enforcement of the Act’s provisions cumbersome and more complex and accordingly imposes unnecessary additional costs. Benefit/cost impact -1

No restriction on access to protected zones Similar to the Base Case this Option could have potentially significant negative effects because the whereabouts of the particularly vulnerable historic shipwreck or relic would still be publicly available through the Act’s protected zone register. Notwithstanding the Act’s provisions that make it an offence to interfere with a historic shipwreck, this would encourage looting of these prized artefacts.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

Benefit/cost impact -1

Impact on dive tourism industry It is anticipated that the industry would derive initial benefits from this Option as it would seek to achieve optimum results from the opportunity. However, the lack of enforceability of the Act’s provisions and the resulting impact on artefacts and relics may, in the longer term see a negative impact on tourism interest.

For the Code of Practice to be effective it would need to have wide coverage – that is it would need to be widely promulgated to the diving, tourism and fishing industries. This could be done by the two associations referred to but their coverage is not expected to capture all divers, let alone the tourism and fishing industries. This is a serious weakness in this Option. Benefit/cost impact -2

Impact on community For similar reasons to the anticipated impact on the industry the long-term effects of a lack of enforceability is likely to result in a deterioration of the vulnerable historic shipwreck sites and historic shipwreck relics and the community’s cultural heritage would be lost. Benefit/cost impact -1

This Option is the same as the Base Case in terms of impacts of there being no fees nor additional administration and enforcement associated with no Regulations.

6.3 Fees only apply for Commercial Access – Option 2

The proposed fees structure as outlined in Section 4 and detailed in Appendix 1 is generally based on a full cost recovery approach consistent with Department of Treasury and Finance Guidelines. An alternative to this policy approach has been considered in the development of the proposed Regulations that involves consideration of the wider beneficiaries of protection of the State’s cultural heritage. While the proposed fee structure indicates a more rigorous assessment of applications for access to historic shipwreck sites and relics for commercial purposes than for scientific and educational based applicants, nevertheless the latter applicants still will be required to pay full cost rates for their permits.

It can be argued that promotion of the awareness and interest in cultural heritage has State-wide benefits in a better appreciation and recognition of historical society and its activities. On the other hand applicants for access to historic shipwreck sites for commercial gain obtain benefits primarily for themselves.

This Option therefore envisages no fees at all apply to permit applications for applicants who are purely educational or scientifically based. This would effectively continue the current arrangements but would not require an application for the fee to be waived as is the case at present. It would require only the demonstration that the applicant was part of a recognised educational/scientific body identified in the Regulations.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

This is based on the principle that where there are broader State-wide beneficiaries associated with access it is appropriate for the costs of such access to be broadly distributed. It follows that it would not therefore be appropriate for the costs of administration of applications for permits for these educational/scientific bodies to be passed to commercially–based applicants.

This Option would only amend the fees component of the proposed Regulations.

Assessment of the Option Prescription of Fees The benefits of this Option are that it sends a strong signal to the community that educational/scientific activities associated with historic shipwrecks are encouraged as being in the public interest. The extent of this benefit is, however, diminished because the Regulations already recognise this by the waiver provisions that have been used extensively to date.

As indicated earlier in this RIS no fees have been charged to date as all applicants for permits have been able to demonstrate an educational/scientific component to their activities. However, the proposed fee structure envisages a reduced level of fees for these organisations. Notwithstanding this, the formal identification of educational and scientific bodies as being exempt from fees in the Regulations has overt benefits. Benefit/cost impact +1

Administration and Enforcement The negative effects of this Option are associated with the need to list the bodies that would be exempt. While it is recognised that the list could be compiled from records of permit applicants and extended to other like bodies in Australia, in order to be all- embracing the list would need to be generic rather than specific. This has the potential to blur the nature of the activity. For example, many educational organisations have commercially based departments that might seek to claim no fee applicability while undertaking commercial activities. This lack of clarity is expected to impose additional administrative costs in the assessment of applications. It may also unnecessarily create an environment of ill-will. Benefit/cost impact -2

The benefit/cost impact ratings for the remaining elements of Option 2 are the same as the proposed Regulations.

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

6.4 Conclusion

The balanced scorecard assessment compares the two Options to the proposed regulations. The following Table demonstrates that the two Options are inferior to the proposed regulatory approach that has an overall positive assessment of +7. The weightings used for the rating are distributed equally for each criterion .

Criteria Option Option 1 2

1. Specification of activities prohibited in a protected zone - Improved enforceability and compliance of Act’s provisions -1 0 2. Specification of activities prohibited within any protected zone - Restriction on access -1 0 - Dive tourism industry benefits -2 0 - Societal benefits -1 0 3. Specification of activities prohibited near any historic 0 shipwreck or in any protected zone 4. Prescription of fees -1 1 5. Administration and enforcement 0 -2 Total -6 -1

Regulatory Impact Statement Proposed Heritage (Historic Shipwrecks) Regulations 2007

7. NATIONAL COMPETITION POLICY ASSESSMENT 7.1 Policy Background

By endorsing the National Competition Policy (NCP) all Australian governments agreed to remove legislative impediments to competition, unless the benefits of the restriction to the community as a whole outweigh the costs, and the objectives of the legislation can only be achieved by restricting competition.

In Victoria, all proposed regulations must be evaluated in terms of their potential to restrict competition as part of the Regulatory Impact Statement process. Assessment against the NCP involves consideration of the relevant markets and market participants and the impacts on them of the proposed Regulations.

7.2 Definition of Market

The primary market affected by the proposed Regulations is the recreational dive industry but the tourism and fishing industry markets are also affected.

7.3 Test for Restriction on Competition

Under the Guidelines for the application of the Competition Test to New Legislative Proposals, legislative schemes are deemed to contain restrictions on competition if they:

• Allow only one company or person to supply a good or service; • Require producers to sell to a single company or person; • Limit the number of industry or individual producers; • Limit the number of persons engaged in an occupation.

The proposed Regulations themselves do not limit the entry to this market in any way, and all businesses within the market will be equally affected. Therefore, the proposed Regulations do not contain a restriction on competition. Moreover, the possible markets are not restricted by the proposed Regulations as the above barriers to competition do not apply.

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007 APPENDIX 1

PROPOSED FEES FOR PERMITS

1. INTRODUCTION 1.1 Statutory framework

Section 113 of the Heritage Act 1995 provides that a person may apply to the Heritage Director for a permit to do an act or thing which would otherwise be prohibited under sections 110, 111, or 112 or the shipwreck regulations. The section further provides that the application must be accompanied by the prescribed fee.

Section 187 of the Act gives regulation-making powers which provide for: • Different fees for different permitted activities; • Different fees for different classes of permit holder; • Exemption of particular classes of applicants from certain fees; and • Fees to be waived in particular cases or classes of cases.

1.2 Proposed Fee Structure

A permit for an activity which is likely to threaten the community’s cultural heritage property will only be granted after careful consideration of all the issues and often will impose stringent conditions on the permit holder.

The fee decision process must be quite flexible striking a balance between the sometimes conflicting needs to provide for the protection and conservation of places and objects of high cultural significance, and to promote and encourage access to, and understanding of these places and objects. The proposed Regulations therefore prescribe a broad range of circumstances in which the charging of the permit fee is discretionary.

Classes of application for a permit 1-2 and 5-7 are part of the existing Regulations. It is proposed to include new Classes 3 and 4 to recover the costs which will be incurred by Heritage Victoria in providing capital infrastructure, such as moorings or similar provisions, on specific sites such as the City of Launceston .

Class 1 and 2 permits Class 1 permits are primarily for small groups (usually 6 or less) of experienced divers who, because of their training and educational/scientific interest and responsibilities can be expected to create very little disturbance to a site due to their skills with buoyancy control and underwater abilities. In addition, applications for permits from educational/scientific bodies are able to be ‘fast-tracked’ in the knowledge that their skills and interest will ensure protection of the site(s) and because these applicants usually indicate they are planning to record information, monitor and report back to Heritage Victoria and/or to enhance/consolidate their educational experiences gained through attending the AIMA NAS courses. There are therefore tangible benefits from encouraging these people to visit protected sites. The result is a net gain to the heritage.

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007 Class 2 permits are typically for chartered commercial operators visiting protected sites. These often take inexperienced divers and large groups (seven or more). Inexperienced divers often struggle with buoyancy control and as a result some beginners 'bounce' on the bottom or grab hold of the wreck in an attempt to maintain position. This can result inadvertently in damage to the wreck. The larger numbers per dive increases potential for disturbance on the wreck. The result is a net damage to the heritage. It is therefore necessary to give applications for Class 2 permits considerably more scrutiny to ensure that the objectives of the Act and Regulations are carefully explained and that permit conditions are understood. The conditions attached to all permit application for access to the William Salthouse are set out for illustration in the box following:

ACCESS PERMIT CONDITIONS

1. The Permit must be carried on board the vessel at all times when within the 250 metre radius Protected Zone. 2. Permit holder must be present during diving operations on the site. 3. The Permit is valid for one hour either side of the published daylight slack water times for Port Phillip Heads on the date specified in the Permit. 4. The Permit allows access for a maximum of 12 divers to undertake recreational diving activities in the Protected Zone. 5. The vessel will not anchor in the prohibited anchorage areas in Port Phillip Bay. 6. The vessel will not anchor on the wreck site. 7. The operator and dive master on the vessel accept that the safety of persons is of paramount importance. 8. Any request by a Historic Shipwrecks Inspector will be complied with immediately. 9. Divers shall not damage, move or otherwise interfere with historic shipwreck or relics within 250 meters of the outer extent of the protected zone. 10. Divers are to be informed that the William Salthouse is an historic shipwreck situated within a Protected Zone accessible by permit from Heritage Victoria only. The site is protected under the state Heritage Act 1995 and any interference whatsoever with the archaeological site is strictly forbidden with heavy penalties applying – ‘look but don’t touch’. 11. The imposition of these conditions shall not be construed as imposing any liability on the Department of Sustainability and Environment or any employees of the Government of Victoria.

Class 3 and 4 permits These are new classes of permits that build on Class 1 and 2 permits in that they are the same permit but include the use of moorings and other facilities specified in the permit. The fees for these permits are therefore based on those for Class 1 and 2 but include a cost for the infrastructure provided. These costs are detailed in Attachment 1.

It is proposed that the fee structure and rates be established as illustrated overleaf:

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

Class of Type of permit activity Fee $ application Class 1 Enter a protected zone for recreational, scientific or educational purposes $50 Class 2 Enter a protected zone for commercial purposes not likely to cause disturbance, $300 damage or other interference with the historic shipwreck or historic shipwreck relics Class 3 Enter a protected zone for recreational, scientific or educational purposes where the $250 permit requires the use of moorings or other facilities Class 4 Enter a protected zone for commercial purposes where the permit requires the use of $500 moorings or other facilities Class 5 Enter a protected zone for commercial purposes likely to cause disturbance, damage $1300 or other interference with the historic shipwreck or historic shipwreck relics Class 6 Take, disturb, remove, damage, destroy of otherwise interfere with a historic $1300 shipwreck or historic shipwreck relics Class 7 Possess or dispose of otherwise than by trade a historic shipwreck of historic $20 shipwreck relics Class 8 Remove from Victoria or trade in a historic shipwreck or historic shipwreck relics $100 Class 9 Possess equipment, instruments or explosives of a kind referred to in section 112 of $600 the Act on or near a historic shipwreck or historic shipwreck relics

2. IDENTIFICATION OF COSTS FOR FEE CALCULATION 2.1 Background

The effort expended by staff in assessing applications, preparing permits and monitoring compliance with shipwrecks permit conditions is only part of their overall functions and duties. This is because the total number of permit applications is small (<50 per annum 3) and because the majority involve non-threatening activities which require only a desktop analysis (>90%). The proposed new classes of permit to enter a protected zone where mooring or other facilities are provided are the exception. The permit power has been delegated for most cases.

Some classes of activity for which a permit may be used, subject to the payment of a fee, are quite broad. This is because the extent of assessment and monitoring necessary in any particular case may range from very little, where the perceived threat to the cultural resource is minimal, to very extensive, where the perceived threat is substantial and real.

2.2 Costing Framework using Guidelines from the Department of Treasury and Finance

Costing rates as a percentage of productive labour rates (PLR) have been calculated as required by the Department of Treasury and Finance (DTF) Guidelines. These Guidelines assume an effective work regime of 210 days per year and 7 hours per day for each employee. A factor of 97% of the PLR was derived which includes both labour on-costs and non-direct costs. This has been standardised to a 100% loading (ie the loading is added to the PLR).

3 It is estimated that the number of existing permits (20) will be more than doubled once the City of Launceston is opened to the public based on experience with the William Salthouse .

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

The factored PLR for each of the VPS salary bands is shown in Table 1.

Table 1 VPS5 VPS4 VPS3 VPS2 VPS1 Annual Salary $65,589 $56,845 $45,917 $34,990 $29,527 Normal Hourly Rate $33.08 $28.67 $23.16 $17.64 $14.89 Productive Labour Rate $44.62 $38.67 $31.24 $23.80 $20.09 (PLR) Labour On-Costs (21.5% of 9.59 8.31 6.72 5.12 4.32 PLR) Operating Expenses (19.3% 8.61 7.46 6.03 4.59 3.88 of PLR) Accommodation (21% of 9.37 8.12 6.56 5.00 4.22 PLR) Corporate Overheads (24.5% 10.93 9.47 7.65 5.83 4.92 of PLR) Depreciation (11% of PLR) 4.91 4.25 3.44 2.62 2.21 Return on Assets 0.00 0.00 0.00 0.00 0.00 Total 43.41 37.61 30.40 23.16 19.55 % loading on PLR 97% 97% 97% 97% 97%

2.3 Field Operating Expenses

Operating costs associated with boats, vehicles and equipment have been calculated using average external hire rates and are shown in Table 2.

Table 2 Boats – (hr) Vehicles – (daily) Equipment – (hr) Kevlacat – 160.00 Izuzu 10t truck – $175 Dive gear - 2.00 Stessl – 40.00 Toyota 4WD – $150

3. CALCULATION OF FEES FOR EACH CLASS Class 1: Enter a protected zone for recreational, scientific or educational purposes Application is received, checked for completeness of information and any prior bookings. Application assessed and details are recorded in shipwrecks database and permit printed (VPS-3). Permit approved and signed by delegate (VPS-4). Completed permit faxed to applicant and filed (VPS-1). ______VPS-3 30 mins @ 31.24hr 15.62 ______VPS – 4 10 mins @ 38.67hr 6.45 ______VPS-1 10 mins @ 20.09hr 3.35 ______$25.42 + 100% loading = $50.84 ______Proposed fee $50.00

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

Class 2: Enter a protected zone for commercial purposes not likely to cause disturbance, etc. to a historic shipwreck or historic shipwreck relics Application is received, checked for completeness of information and recorded (VPS-1). A desktop assessment is conducted to determine extent of any threats to the historic shipwrecks and relics. Applicant contacted by phone to discuss shipwreck legislative objectives and the conditions that are attached to the permit (VPS-3). Agreed conditions checked by Legal Operations Officer (VPS-3). Details entered on shipwrecks database and permit printed (VPS-3). Initial approval by Unit Manager (VPS-4). Final approval and signed by delegate (VPS-5). ______VPS-5 30 mins @ 44.62hr 22.32 ______VPS-4 75 mins @ 38.67hr 48.34 ______VPS–3 120 mins @ 31.24hr 62.48 ______VPS-1 30 mins @ 20.09hr 10.05 ______143.19 + 100% loading = $286.38 ______Proposed fee $300.00

Class 3: Enter a protected zone for recreational, scientific or educational purposes where the permit requires the use of provided moorings or other facilities as specified in the permit

Application is received, checked for completeness of information and any prior bookings. Application assessed and details are recorded in shipwrecks database and permit printed (VPS-3). Permit approved and signed by delegate (VPS-4). Completed permit faxed to applicant and filed (VPS-1). ______VPS-3 30 mins @ 31.24hr 15.62 ______VPS – 4 10 mins @ 38.67hr 6.45 ______VPS-1 10 mins @ 20.09hr 3.35 ______$25.42 + 100% loading = $50.84 ______Proposed fee $50.00 Administrative cost of application (from above) $50.00 Plus Annualised Capital Costs per application (see Attachment 1) $200.00 Total Costs per Application $250.00 Proposed fee $250

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007 Class 4: Enter a protected zone for commercial purposes where the permit requires the use of provided moorings or other facilities as specified in the permit

Application is received, checked for completeness of information and recorded (VPS-1). A desktop assessment is conducted to determine extent of any threats to the historic shipwrecks and relics. Applicant contacted by phone to discuss shipwreck legislative objectives and the conditions that are attached to the permit (VPS-3). Agreed conditions checked by Legal Operations Officer (VPS-3). Details entered on shipwrecks database and permit printed (VPS-3). Initial approval by Unit Manager (VPS-4). Final approval and signed by delegate (VPS-5). ______VPS-5 30 mins @ 44.62hr 22.32 ______VPS-4 75 mins @ 38.67hr 48.34 ______VPS–3 120 mins @ 31.24hr 62.48 ______VPS-1 30 mins @ 20.09hr 10.05 ______143.19 + 100% loading = $286.38 ______

Administrative cost of application (from above) $286.38 Plus Annualised Capital Costs per application (see Attachment 1) $200.00 Total Costs per Application $486.38 Proposed fee $500.00

Class 5: Enter a protected zone for commercial purposes likely to cause disturbance, etc. to a historic shipwreck or historic shipwreck relics Application is received, checked for completeness of information and recorded (VPS-1). A desktop assessment is conducted to determine extent of the threat (VPS- 3). Meeting arranged with the applicant to consider alternatives to threatening activity/permit conditions (VPS-4). Report prepared for Executive Director and Historic Shipwrecks Advisory Committee examining both archaeological and legal implications (VPS-3). Details entered on shipwrecks database and permit printed (VPS-3). Permit signed by delegate (VPS-5). Site monitored to ensure compliance with permit conditions (2 x VPS-2) and 2 x VPS-3). Permit faxed and filed (VPS-1).

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

______VPS-5 15 mins @ 44.62hr 11.16 ______VPS-4 90 mins @ 38.67hr 58.01 ______VPS–3 8 hrs @ 31.24hr 249.92 ______VPS-2 3.5hr @ 23.80hr 83.30 ______VPS-1 10 mins @ 20.09hr 3.35 ______405.73 + 100% loading = $811.46 ______4WD 1 day @ 150 150 ______Truck 1 day @ 175 175 ______Devilcat 60 mins @ 160.00hr 160.00 ______Gear (x3) 12 hr @ 2.00hr 24.00 ______$509 = $509 ______Total $1320.46 ______Proposed fee $1300

Class 6: Take, disturb, damage, etc. a historic shipwreck or historic shipwreck relics Application is received, checked for completeness of information and recorded (VPS-1). A desktop assessment is conducted to determine extent of the threat (VPS- 3). Meeting arranged with the applicant to consider alternatives to threatening activity/permit conditions (VPS-4). Report prepared for Executive Director and Historic Shipwrecks Advisory Committee examining both archaeological and legal implications (VPS-3). Details entered on shipwrecks database and permit printed (VPS-3). Permit signed by delegate (VPS-5). Site monitored to ensure compliance with permit conditions (2 x VPS-2) and 2 x VPS-3). Permit faxed and filed (VPS-1). ______VPS-5 15 mins @ 44.62hr 11.16 ______VPS-4 90 mins @ 38.67hr 58.01 ______VPS–3 8 hrs @ 31.24hr 249.92 ______VPS-2 3.5hr @ 23.80hr 83.30 ______VPS-1 10 mins @ 20.09hr 3.35 ______405.73 + 100% loading = $811.46

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

______4WD 1 day @ 150 150 ______Truck 1 day @ 175 175 ______Devilcat 60 mins @ 160.00hr 160.00 ______Gear (x3) 12 hr @ 2.00hr 24.00 ______$509 = $509 ______Total $1320.46 ______Proposed fee $1300

Class 7: Possess a historic shipwreck or historic shipwreck relics or dispose of them otherwise than by trade Application is received, checked for completeness. Details are verified in, or added to the artefacts database and permit printed (VPS-3). Permit approved and signed by delegate (VPS-5). Permit recorded and despatched (VPS-1). ______VPS-5 5 mins @ 44.62hr 3.72 ______VPS–3 10 mins @ 31.24hr 5.21 ______VPS-1 5 mins @ 20.09hr 1.67 ______10.60 + 100% loading = $21.20 ______Proposed fee $20.00

Class 8: Remove from Victoria or trade in a historic shipwreck or historic relics Application is received, checked for completeness of information and recorded (VPS-1). Details verified against artefact database (VPS-3). Inspection of articles (VPS-3). Report to Unit Manager for in-principle approval (VPS-4). New address location and/or new custodian details recorded in artefact database and permit printed (VPS-3). Permit to remove or dispose approved and signed by delegate (VPS-5). Permit to possess signed (VPS-5) and sent to new custodian if applicable (VPS-3). Permits registered (VPS-1). ______VPS-5 5 mins @ 44.62hr 3.72 ______VPS-4 20 mins @ 38.67hr 12.89 ______VPS – 3 60 mins @ 31.24hr 31.24 ______VPS-1 10 mins @ 20.09hr 3.34 ______

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

51.19 + 100% loading = $102.38 ______Proposed fee $100.00

Class 9: Possess equipment, instruments, and explosives on or near a historic shipwreck or historic shipwreck relics. Application is received, checked for completeness of information and recorded (VPS-1). A desktop assessment is conducted to determine extent of the threat (VPS- 3). Meeting arranged with the applicant to discuss permit conditions etc (VPS- 4). Report prepared for Executive Director (VPS-3). Details entered on shipwrecks database and permit printed (VPS-3). Permit signed by delegate (VPS-5). On-site monitoring of activity to ensure compliance with permit conditions (2 x VPS-2) and 2 x VPS-3). Record, file and mail permit (VPS-1). ______VPS-5 10 mins @ 44.62hr 7.44 ______VPS-4 60 mins @ 38.67hr 38.67 ______VPS–3 3.5hr @ 31.24hr 109.34 ______VPS-2 2hr @ 23.80hr 47.60 ______VPS-1 20 mins @ 20.09hr 6.70 ______209.75 + 100% loading = $419.50 ______4WD 1 day @ $150 150 ______Stacer 1 hr @ 40.00hr 40.00 ______$190 = $190.00 ______Total $609.50 ______Proposed fee $600

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007 Attachment 1

CAPITAL AND ONGOING COSTS FOR CITY OF LAUNCESTON ACCESS & ANTICIPATED VISITATION RATES

In order to regulate access to the City of Launceston it is necessary to erect and install moorings and to undertake ongoing enforcement and monitoring activities. These costs are detailed as follows:

1. CAPITAL AND ONGOING COSTS 1.1 Capital Costs Moorings 2 x 4-strand Seaflex with by-pass at $1843 $3686 4 x solid sub-floats, approx. $40 each $ 160 60 m rope, approx. $5.00/ m $ 300 1 x weighted eye $ 30 2 x 4 ton concrete blocks, @ approx. $400 each $ 800 Total capital costs $4976 Plus GST @ 10% $ 498 TOTAL $5474

Installation Estimated market rate for commercial divers $3500

Total Capital Costs $8975 Annualised over 10 years (anticipated life of moorings and life of Proposed Regulations) $900

1.2 Annual costs Seasonal costs Seasonal installation and maintenance costs (approx) $2000

Staff time - site monitoring Administration of the permit system; risk management activities; information updating; guide training; enforcement and monitoring activities of the site (s). Based on current MHU position categories for VPS Grades 3 & 5 (1 October 2005 maximum amounts) four staff, two weeks full-time:

VPS 3/ VR1 – ($50,835 p.a.) = $1955.19 x 3 = $5865.57 VPS 5 (Manager) – ($72, 474 p.a.) = $2787.46 Total $8653

Field Costs – site monitoring Corrosion expert & analysis of results 1st year 3 visits ($1,000/visit) $3000 Fuel and boat operating costs 10 days monitoring @ $150/day $1500 Total site monitoring costs $4500 Total Annual Costs $15153 Annualised Capital Costs $ 900 TOTAL ANNUAL COSTS $16053

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007

2. ANTICIPATED VISITATION TO WRECK OF THE CITY OF LAUNCESTON

When the wreck of the William Salthouse was first opened to the public approximately a decade ago there was an initial flush of interest. Resurgence in the numbers of permits issued to visit the Salthouse has occurred recently due to the educational courses being provided by Heritage Victoria which use the wreck as a case study. In the last year HV issued 5 permits and 2004 there were 13 permits for the Salthouse. Prior to that however, the Salthouse only attracted 1 to 2 visitations a year and sometimes none.

It is anticipated that the City of Launceston will undergo the same rush of interest over the first 2 years. The main intent behind the 2 new fees was to recoup a potentially major outlay on the City of Launceston .

An estimate of visitation to the City of Launceston site has been made by maritime archaeologists in Heritage Victoria. There will only be seasonal access to the site due to weather conditions and this access is expected to be confined to dive clubs and charter groups. Based on the experience of the William Salthouse it is expected that the initial visitation will involve: 1. Primarily week-end visits – that is, visitation is anticipated to be for 2 days per week for the first season; 2. Two visitations per day carrying up to 12 persons each. With 2 days of diving access the number of divers wishing to visit the site is approximately 48 per week; 3. The site being open for 4 weeks/year giving an estimated annual number of divers (and therefore permit applicants) visiting the site to 264.

A significant reduction is anticipated in visitation requests after the first year and ongoing annual visitation is expected to: 1. Involve one charter group each second month of the open season (ie visitation will be during 4 weeks/year) and still confined primarily to week-end visits; 2. Involving irregular visitations carrying up to 12 persons. Based on the number of permits issued in 2005 for visitation to the William Salthouse the annual number of divers (and therefore permit applicants) visiting the site would be 60.

On the basis of the expected high level of visitation in the first year and the subsequent reduced visitation to 60 permits/year, the total 10-year visitation is 804 or approximately an average of 80 permit applications/year.

3. COSTS PER VISIT

On the basis of the annualised capital and ongoing costs ($16,053) and the average annual number of applications for a permit (21), and in order to fulfil DTF’s full cost recovery policy, it is estimated that costs per application will be $200.66.

Regulatory Impact Statement Heritage (Historic Shipwrecks) Regulations 2007 APPENDIX 2 VICTORIA’S HISTORIC SHIPWRECKS PROTECTED ZONES

Name of Wreck Date Gazetted Description of Protected Zone Level of Access permitted SS City Of Launceston 17 March 1982 500m diameter Protected Zone Recreational (1863 – 1865) around position diving with permit - William Salthouse (1824 – 9 February 1983 250m radius Protected Zone Recreational 1841) around position diving with permit Clarence 5 September 1986 100m radius Protected Zone No Entry (1841 – 1850) around position Joanna 5 December 1990 100m radius Protected Zone No Entry (1856 – 1857) around position Will O’ the Wisp 10 February 1993 100m radius Protected Zone No Entry (1840 – 1853) around position HMVS Cerberus 6 October 1994 50m rectangular Protected Zone No Entry area defined by buoys PS Clonmel 31 August 1996 Protected Zone Area proscribed No Entry (1836 – 1841) (Commonwealth) by a circle of 50 metres radius centred on the boiler “which is, or may be, exposed at low tide