An Act to make provision with respect to the conservation and protection of the fauna, flora and geological diversity of the State, to provide for the declaration of national parks and other reserved land and for related purposes.
An Act to make provision with respect to the conservation and
protection of the fauna, flora and geological diversity of the State,
to provide for the declaration of national parks and other reserved
land and for related purposes
[Royal Assent 19 December 2002]
Be it enacted by His Excellency the Governor of Tasmania, by and with
the advice and consent of the Legislative Council and House of
Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
1. Short title
This Act may be cited as the Nature Conservation Act 2002.
2. Commencement
This Act commences on the day on which the National Parks and
Reserves Management Act 2002 commences.
3. Interpretation
(1) In this Act, unless the contrary intention appears -
"authorised officer" means -
(a) a police officer; and
(b) a ranger;
"biological diversity" means the variety of -
(a) plants, animals and micro-organisms; and
(b) the genes contained in plants, animals and micro-organisms;
and
(c) the ecosystems of which plants, animals and micro-organisms
form part;
"cat" means a member of the species Felis catus ;
"class" , in relation to reserved land, means the class referred
to in section 16 that the reserved land is declared to be under
section 11, 12, 13, 14 or 15;
"Commission" means the Tasmanian Planning Commission established
under section 4 of the Tasmanian Planning Commission Act 1997 ;
"conservation area" means -
(a) any land declared under this Act to be reserved land in the
class of conservation area; and
(b) any land taken to have been so declared;
"conservation purpose" means -
(a) any purpose specified in Column 3 of Schedule 1; or
(b) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of any reserved
land;
"container" includes any wrapping;
"conveyance" means any vehicle, vessel or aircraft, or any other
contrivance intended for the carriage of persons or goods over land
or water or in the air;
"Crown land" means any land vested in the Crown (whether or not
subject to any private right) other than land vested in the Crown
that is contracted to be granted in fee simple;
"dingo" means a member of the subspecies Canis familiaris
dingo ;
"Director" means the Director of National Parks and Wildlife
appointed under the National Parks and Reserves Management Act
2002 ;
"dog" means a member of the species Canis familiaris ;
"domestic stock" means the animals, or the species of animals,
prescribed by the regulations to be domestic stock;
"ferret" means a member of the species Mustela putorius ;
"fox" means a member of the genus Vulpes ;
"game" means the forms of wildlife that are specified as partly
protected wildlife in the wildlife regulations and whose taking is
subject to licensing under those regulations;
"game reserve" means -
(a) any land declared under this Act to be reserved land in the
class of game reserve; and
(b) any land taken to have been so declared;
"geological diversity" means the natural range of geological,
geomorphological and soil features, assemblages, systems and
processes;
"historic site" means -
(a) any land declared under this Act to be reserved land in the
class of historic site; and
(b) any land taken to have been so declared;
"hunting equipment" means any weapon, implement, apparatus or
material which -
(a) is capable of being used for the taking of any wildlife or a
product of any wildlife; or
(b) is incapable of being so used only by reason of -
(i) the absence of, or a defect in, a part; or
(ii) the presence of an obstruction;
"land" includes -
(a) land covered by the sea or other waters; and
(b) the part of the sea or those waters covering that land;
"leased reserve" means an area of land held on lease under
section 15;
"management agreement" , in relation to any private land, means an
agreement entered into under section 25;
"management objectives" , in relation to any class of reserved
land, has the same meaning as in the National Parks and Reserves
Management Act 2002 ;
"managing authority" , when used in relation to any reserved land,
has the same meaning as in the National Parks and Reserves
Management Act 2002 ;
"Minister for Crown Lands" means the Minister for the time being
administering the Crown Lands Act 1976 ;
"mink" means a member of the species Mustela vison or Mustela
lutreola ;
"national park" means -
(a) any land declared under this Act to be reserved land in the
class of national park; and
(b) any land taken to have been so declared;
"nature recreation area" means -
(a) any land declared under this Act to be reserved land in the
class of nature recreation area; and
(b) any land taken to have been so declared;
"nature reserve" means -
(a) any land declared under this Act to be reserved land in the
class of nature reserve; and
(b) any land taken to have been so declared;
"Nomenclature Board" means the Nomenclature Board established by
the Survey Co-ordination Act 1944 ;
"owner" means -
(a) in the case of land vested in the Crown which is contracted
to be granted in fee simple, the person to whom it is so
contracted; and
(b) in any other case, the person who, under the Land
Acquisition Act 1993 or otherwise, is entitled to sell, convey or
surrender a freehold estate in that land to the Crown;
"partly protected wildlife" means the species of wildlife
prescribed by the regulations as partly protected wildlife;
"plant" means -
(a) a form of vegetation; and
(b) an organism belonging to the vegetable kingdom; and
(c) a fruit; and
(d) a seed; and
(e) a product of a plant; and
(f) a part of a plant -
whether that plant is alive or dead or whether or not capable of
growth;
"prescribed body" , in relation to the management of reserved
land, has the same meaning as in the National Parks and Reserves
Management Act 2002 ;
"private land" means land other than Crown land or land vested in
a public authority;
"private nature reserve" means -
(a) any land declared under this Act to be reserved land in the
class of private nature reserve; and
(b) any land taken to have been so declared;
"private right" , in relation to Crown land, means any estate,
interest or right (not being an interest arising under a contract
for the grant of an estate in fee simple) pursuant to which its
holder has one or more of the following rights:
(a) the right to occupy or use that land;
(b) the right to carry out any operations on that land;
(c) the right to take any products of, or materials in or on,
that land, including materials beneath the surface of that land;
"private sanctuary" means -
(a) any land declared under this Act to be reserved land in the
class of private sanctuary; and
(b) any land taken to have been so declared;
"products" , in relation to wildlife, has the meaning given by
subsection (2);
"protected plant" means a plant prescribed as a protected plant
under section 27;
"public authority" means -
(a) a council within the meaning of the Local Government Act
1993 ; and
(b) another body corporate established by an enactment having
jurisdiction limited to a district, locality or part of the State;
and
(c) a statutory authority;
"public reserve" has the same meaning as in the Crown Lands Act
1976 ;
"purposes of reservation" in relation -
(a) to any reserved land, means the purposes for which that land
was reserved; or
(b) to any class of reserved land, means the purposes of
reservation specified in Schedule 1 in relation to that class;
"ranger" means a person appointed as a ranger, or authorised to
perform the functions and exercise the powers of a ranger, under
section 8;
"Recorder" means the Recorder of Titles;
"regional reserve" means -
(a) any land declared under this Act to be reserved land in the
class of regional reserve; and
(b) any land taken to have been so declared;
"regulations" means regulations made and in force under
section 76;
"reserved" means set aside or acquired for a conservation
purpose;
"reserved land" means -
(a) any land declared under this Act to be reserved land; and
(b) any land taken to have been so declared;
"resource management and planning system objectives" means the
objectives of the resource management and planning system of
Tasmania as set out in Schedule 2;
"statutory authority" means an incorporated or unincorporated
body which is established, constituted or continued by or under an
Act or under the royal prerogative, being a body which, or of which
the governing authority, wholly or partly comprises a person or
persons appointed by the Governor, a Minister of the Crown or
another statutory authority;
"Secretary" means the Secretary of the Department;
"special advisory committee" means a special advisory committee
established under section 9;
"State reserve" means -
(a) any land declared under this Act to be reserved land in the
class of State reserve; and
(b) any land taken to have been so declared;
"statutory power" means -
(a) a power under an enactment, other than this Act, for -
(i) the reservation or dedication of Crown land for any purpose;
or
(ii) the alienation of, or the grant of private rights in or
over, any such land; or
(iii) the carrying out of any works or other operations on any
such land; and
(b) a power that, under an enactment other than this Act, may be
exercised by a public authority in relation to land vested in it;
"trust land" means Crown land subject to a trust under
section 23;
"wildlife" means any living creature other than -
(a) a dog or cat; and
(b) domestic stock; and
(c) fish, within the meaning of the Living Marine Resources
Management Act 1995 ; and
(d) an animal that -
(i) is being farmed under and in accordance with the Animal
Farming (Registration) Act 1994 ; or
(ii) has been so farmed and is legally in the possession of any
person;
"wildlife regulations" means regulations made for the purposes of
Part 4 in respect of the matters referred to in sections 26, 27 and
28;
"wolf" means a member of the genus Canis , other than Canis
familiaris .
(2) A reference in this Act to the products of any form of
wildlife includes a reference to -
(a) the dead bodies, and parts of the dead bodies, of that form
of wildlife; and
(b) any material or thing obtained from the bodies or dead bodies
of that form of wildlife; and
(c) any eggs of that form of wildlife; and
(d) any nests of that form of wildlife.
(3) For the purposes of this Act, a form of wildlife may be
described by reference to any one or more of the following matters:
(a) the species, type or other classification by which it may be
described or identified;
(b) its sex, age or condition;
(c) any of its attributes or characteristics.
(4) For the purposes of this Act, a plant may be described by
reference to any one or more of the following matters:
(a) the species, type or other classification by which it may be
described or identified;
(b) any of its attributes or characteristics.
(5) A reference in this Act to the taking of any wildlife or
to the taking of a form of wildlife that is game includes a reference
to the killing, destroying, hunting, pursuing, catching, shooting,
netting, snaring or injuring that wildlife or that form of wildlife.
(6) A reference in this Act to the taking of a product of any
wildlife includes a reference to the carrying out of any operation -
(a) for the purpose of obtaining that product; or
(b) that has the effect of destroying or damaging that product.
(7) A reference in this Act to the taking of any plant
includes a reference -
(a) to the destroying or damaging of that plant; and
(b) to the taking, destroying or damaging of any fruit, seeds,
product or part of the plant.
(8) A reference in this Act to the taking of any thing
includes a reference to attempting to take, or assisting in the taking
of, that thing.
(9) A reference in this Act to selling includes a reference to
any disposal by way of trade.
(10) A reference in this Act to buying includes a reference -
(a) to receiving or accepting under a contract to sell; and
(b) to offering to receive or accept under a contract to sell;
and
(c) to causing or suffering to be received or accepted under a
contract to sell.
(11) For the purposes of this Act, a person is taken to have a
thing in his or her possession -
(a) if it is in his or her possession, or under his or her
control, in any place or conveyance, whether for the use or benefit
of the person or another person; or
(b) if it is -
(i) in or on any place or conveyance occupied, controlled or used
by him or her; or
(ii) used or controlled by him or her in or on any place or
conveyance -
even though another person has the actual possession or custody of
the thing, unless the person proves that he or she had no knowledge
of that thing.
(12) Unless the contrary intention appears, a reference in
this Act to a thing includes a reference to a living thing.
4. Act binds Crown
(1) This Act binds the Crown in right of Tasmania and, so far
as the legislative power of Parliament permits, in all its other
capacities.
(2) Nothing in this Act renders the Crown in right of Tasmania
liable to be prosecuted for an offence against this Act.
5. Compliance with resource management and planning system objectives
In exercising any powers or performing any functions under this Act, a
person is to have regard to the resource management and planning
system objectives.
PART 2 - Administration
6. Functions of the Secretary
(1) Subject to this Act, the Secretary has the following
functions:
(a) keeping the setting aside of land for conservation purposes
under review;
(b) promoting conservation purposes in relation to the use or
development of land generally;
(c) carrying out, or arranging for the carrying out of, research
and other activities that appear to the Secretary to be desirable
in connection with the administration of this Act or the
conservation of the fauna, flora or geological diversity of the
State;
(d) carrying out, or promoting the carrying out of, educational
activities, and providing and disseminating information, related to
the conservation of the fauna, flora or geological diversity of the
State or other matters arising in connection with the
administration of this Act;
(e) giving advice and assistance to managing authorities for
reserved lands;
(f) contributing to the preparation of management plans for
reserved lands under the National Parks and Reserves Management
Act 2002 ;
(g) providing effective means for the enforcement of the
regulations;
(h) negotiating conservation covenants and carrying out
functions, as agreed by the Secretary, in relation to land which
is, or becomes, the subject of a conservation covenant.
(2) The Minister may give directions to the Secretary with
respect to the carrying out of his or her functions under this Act
and, in carrying out those functions, the Secretary is to comply with
any such directions.
(3) The Minister must not give a direction under
subsection (2) with respect to the making by the Secretary of any
recommendation required under any provision of this Act.
7. Arrangements in respect of National Parks and Reserves Management
Act 2002
(1) The Secretary may enter into arrangements with the
Director for the purpose of furthering the objectives of the National
Parks and Reserves Management Act 2002 .
(2) An arrangement may be made with respect to one or more of
the following matters:
(a) the provision of staff and other resources;
(b) any other matter.
8. Rangers
(1) The Secretary may appoint a State Service officer or State
Service employee employed in the Department to be a ranger and that
officer or employee may hold that office in conjunction with State
Service employment.
(2) The Secretary, with the consent of another Head of a State
Service Agency, may appoint a State Service officer or State Service
employee employed in that Agency to be a ranger and that officer or
employee may hold that office in conjunction with State Service
employment.
(3) The Secretary may authorise a person who is not a State
Service officer or State Service employee to perform the functions and
exercise the powers of a ranger.
(4) An appointment as a ranger under subsection (1) or (2), or
an authorisation under subsection (3), may be limited to the land, or
the part of the State, specified in the appointment or authorisation.
(5) A ranger appointed under subsection (1) or (2), or
authorised under subsection (3), in respect of particular land or a
particular part of the State is not to perform the functions or
exercise the powers of a ranger under this Act in respect of any other
land or part of the State.
9. Special advisory committees
(1) The Minister, by order, may establish special advisory
committees for the purpose of -
(a) advising the Minister on such matters in relation to the
administration of this Act as are specified in the order; or
(b) advising the Secretary on such matters arising in relation to
the performance of his or her functions under this Act as are
specified in the order.
(2) An order -
(a) may specify the number of members of the special advisory
committee to which it relates; and
(b) subject to this section, may contain provisions -
(i) regulating the appointment of members of the committee; and
(ii) regulating the proceedings of that committee; and
(iii) giving the Secretary, or a person nominated by the
Secretary, the right to attend meetings of that committee.
(3) The members of a special advisory committee are appointed
by the Minister and the Minister may appoint a member of the committee
as its chairperson.
(4) At a meeting of a special advisory committee, the
chairperson or, if the chairperson is absent or there is no
chairperson, another member present and chosen by the members present
is to preside.
(5) The chairperson or other member presiding at a meeting of
a special advisory committee has a deliberative vote only and, in the
event of an equality of votes on any matter before a meeting of the
committee, the matter stands adjourned to the next meeting of the
committee.
(6) At any meeting of a special advisory committee, a quorum
is constituted if at least half the total number of members of the
committee is present.
(7) Subject to this Act, the Minister may make arrangements to
make available to a special advisory committee such accommodation and
assistance as it may require.
(8) The members of a special advisory committee are to be paid
such travelling and other allowances as the Governor determines.
PART 3 - Reservation and Acquisition of Land
10. Secretary to consult with Director
Before making a recommendation to the Minister in relation to the
acquisition or lease of land for a conservation purpose, or for the
declaration, naming or revocation of any reserved land, the Secretary
is to consult with the Director.
11. Declaration of Crown land as reserved land
(1) In this section,
"Crown land" does not include Crown land that is also -
(a) State forest within the meaning of the Forestry Act 1920 ;
or
(b) a public reserve.
(2) If the Governor is of the opinion that any Crown land
should be set aside for a conservation purpose, the Governor, by
proclamation, may -
(a) declare that land to be reserved land in one of the following
classes:
(i) national park;
(ii) State reserve;
(iii) nature reserve;
(iv) game reserve;
(v) conservation area;
(vi) nature recreation area;
(vii) regional reserve;
(viii) historic site; and
(b) give a name to that reserved land.
(3) Any name given to reserved land under subsection (2) is
to -
(a) include the name of the class of that reserved land; and
(b) be given on the recommendation of the Minister after
consultation with the Nomenclature Board.
(4) A proclamation under subsection (2) may only be made
declaring land to be reserved land in a class if the land satisfies
the criteria relating to that class set out in section 16.
(5) Subject to any proclamation made under section 21, any
area of reserved land in a class referred to in subsection (2)(a)
remains reserved land of that class despite any subsequent disposition
of the land or any other dealing in that land.
12. Declaration of private land as reserved land
(1) If the Governor is of the opinion that any private land
should be set aside for a conservation purpose, the Governor, by
proclamation, may -
(a) declare that land to be reserved land in one of the following
classes:
(i) private sanctuary;
(ii) private nature reserve; and
(b) give a name to that reserved land.
(2) Any name given to reserved land under subsection (1) is
to -
(a) include the name of the class of that reserved land; and
(b) be given on the recommendation of the Minister after
consultation with the Nomenclature Board.
(3) A proclamation under subsection (1) may only be made
declaring land to be reserved land in a class if the land satisfies
the criteria relating to that class set out in section 16.
(4) A proclamation may only be made under subsection (1) if
the owner of the land has consented.
(5) Subject to any proclamation made under section 21, any
area of reserved land in the class of private sanctuary or private
nature reserve remains reserved land of that class despite any
subsequent disposition of the land or any other dealing in the land.
(6) A proclamation made under subsection (1) does not have
effect until it is registered in accordance with section 22.
13. Declaration of land vested in public authority as reserved land
(1) In this section,
"land vested in a public authority" does not include Crown land
that is also -
(a) State forest within the meaning of the Forestry Act 1920 ;
or
(b) a public reserve.
(2) If the Governor is of the opinion that any land vested in
a public authority should be set aside for a conservation purpose, the
Governor, by proclamation, may -
(a) declare that land to be reserved land in the class of
conservation area; and
(b) give a name to that reserved land.
(3) Any name given to reserved land under subsection (2) is
to -
(a) include the name of the class of that reserved land; and
(b) be given on the recommendation of the Minister after
consultation with the Nomenclature Board.
(4) A proclamation under subsection (2) may only be made
declaring land to be reserved land in the class of conservation area
if the land satisfies the criteria relating to that class set out in
section 16(5).
(5) A proclamation may only be made under subsection (1) if
the public authority in which the land is vested consents.
(6) Subject to any proclamation made under section 21, any
area of reserved land that is vested in a public authority remains
reserved land in the class of conservation area despite any subsequent
disposition of the land or any other dealing in that land.
14. Land acquired by Governor as reserved land
(1) The Governor may acquire any area of land that, in the
opinion of the Governor, should be acquired for a conservation
purpose.
(2) From the day on which an area of land acquired under
subsection (1) is registered in the name of the Crown, the land -
(a) is taken to have been set aside for a conservation purpose;
and
(b) is declared to be reserved land in the class of conservation
area.
15. Lease of reserved land
(1) If the Minister, on the recommendation of the Secretary,
is satisfied that any land should be set aside for a conservation
purpose for a specified period, the Minister may, in the name and on
behalf of the Crown, take a lease of that land for the term, and on
the covenants and conditions, approved by the Minister.
(2) For the term of the lease of an area of land under
subsection (1), that land -
(a) is taken to have been set aside for a conservation purpose;
and
(b) is declared to be reserved land in -
(i) the class of national park if the land satisfies the criteria
relating to that class set out in section 16(1); or
(ii) the class of State reserve if the land satisfies the
criteria relating to that class set out in section 16(2); or
(iii) the class of nature reserve if the land satisfies the
criteria relating to that class set out in section 16(3); or
(iv) the class of game reserve if the land satisfies the criteria
relating to that class set out in section 16(4); or
(v) the class of historic site if the land satisfies the criteria
relating to that class set out in section 16(8).
16. Classes of reserved land
(1) Land may be declared to be reserved land in the class of
national park if -
(a) the land -
(i) possesses the values specified in Column 2 for item 1 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of national
park possessing those values; and
(b) the land was reserved for -
(i) the purpose specified in Column 3 for item 1 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(2) Land may be declared to be reserved land in the class of
State reserve if -
(a) the land -
(i) possesses the values specified in Column 2 for item 2 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of State
reserve possessing those values; and
(b) the land was reserved for -
(i) any one or more of the purposes specified in Column 3 for
item 2 of that Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(3) Land may be declared to be reserved land in the class of
nature reserve if -
(a) the land -
(i) possesses the values specified in Column 2 for item 3 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of nature
reserve possessing those values; and
(b) the land was reserved for -
(i) the purposes specified in Column 3 for item 3 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(4) Land may be declared to be reserved land in the class of
game reserve if -
(a) the land -
(i) possesses the values specified in Column 2 for item 4 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of game
reserve possessing those values; and
(b) the land was reserved for -
(i) the purposes specified in Column 3 for item 4 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(5) Land may be declared to be reserved land in the class of
conservation area if -
(a) the land -
(i) possesses the values specified in Column 2 for item 5 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of
conservation area possessing those values; and
(b) the land was reserved for -
(i) the purposes specified in Column 3 for item 5 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(6) Land may be declared to be reserved land in the class of
nature recreation area if -
(a) the land -
(i) possesses the values specified in Column 2 for item 6 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of nature
recreation area possessing those values; and
(b) the land was reserved for -
(i) the purpose specified in Column 3 for item 6 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(7) Land may be declared to be reserved land in the class of
regional reserve if -
(a) the land -
(i) possesses the values specified in Column 2 for item 7 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of regional
reserve possessing those values; and
(b) the land was reserved for -
(i) the purposes specified in Column 3 for item 7 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(8) Land may be declared to be reserved land in the class of
historic site if -
(a) the land -
(i) possesses the values specified in Column 2 for item 8 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of historic
site possessing those values; and
(b) the land was reserved for -
(i) the purposes specified in Column 3 for item 8 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(9) Land may be declared to be reserved land in the class of
private sanctuary if -
(a) the land -
(i) possesses the values specified in Column 2 for item 9 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of private
sanctuary possessing those values; and
(b) the land was reserved for -
(i) the purpose specified in Column 3 for item 9 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (a)(ii).
(10) Land may be declared to be reserved land in the class of
private nature reserve if -
(a) the owner of the land has given up any right to require that
the reservation of that land be revoked; and
(b) the land -
(i) possesses the values specified in Column 2 for item 10 of
Schedule 1; or
(ii) adjoins an area of reserved land in the class of private
nature reserve possessing those values; and
(c) the land was reserved for -
(i) the purposes specified in Column 3 for item 10 of that
Schedule; or
(ii) any purpose that, in the opinion of the Governor, would
promote the better management or more effective use of that land or
the adjoining reserved land referred to in paragraph (b)(ii).
17. Alteration of class of reserved land
(1) The Governor, by proclamation, may -
(a) declare any reserved land, or part of any reserved land, that
has been declared to be in one of the classes referred to in
section 11(2) to be reserved land in another of the classes
specified in that section; and
(b) give a name to that reserved land.
(2) Any name given to any reserved land under subsection (1)
is to -
(a) include the name of the class of that reserved land, as
specified in section 11(2); and
(b) be given on the recommendation of the Minister after
consultation with the Nomenclature Board.
(3) A proclamation under subsection (1) may only be made
declaring land to be reserved land in another class if the land
satisfies the criteria relating to that other class as set out in
section 16.
18. Parliamentary approval required for certain draft proclamations
(1) A proclamation is not to be made under section 11(2) or
section 17(1) declaring land to be reserved land in the class of
national park, State reserve, nature reserve or historic site unless a
draft of the proclamation has been first approved by each House of
Parliament.
(2) A proclamation is not to be made under section 17(1)
declaring any reserved land, or part of any reserved land, in the
class of national park, State reserve, nature reserve, game reserve or
historic site to be in any other class unless a draft of the
proclamation has been first approved by each House of Parliament.
(3) For the purposes of subsection (1), a House of Parliament
is to be taken to have approved a draft of a proclamation if a copy of
it has been laid on the table of the House and -
(a) it is approved by the House; or
(b) at the expiration of 5 sitting days after it was laid on the
table of the House, no notice has been given of a motion to
disallow it or, if such notice has been given, the notice has been
withdrawn or the motion has been negatived; or
(c) if any notice of a motion to disallow it is given during that
period of 5 sitting days, the notice is, after the expiration of
that period, withdrawn or the motion is negatived.
19. Naming of reserved land
(1) The Governor, by proclamation, may give a name to any
reserved land -
(a) that has not been given a name under this Act; or
(b) whose name does not include the name of a class of reserved
land specified in section 11(2) or section 12(1).
(2) The Governor, by proclamation, may give another name to
any reserved land, or part of any reserved land, that has been given a
name under this Act.
(3) Any name given to any reserved land under subsection (1)
or (2) is to -
(a) include the name of the class of that reserved land as
specified in section 11(2) or section 12(1); and
(b) be given on the recommendation of the Minister after
consultation with the Nomenclature Board.
(4) A proclamation is not to be made under subsection (1) or
(2) if that proclamation would have the effect of altering the class
of any reserved land.
(5) A proclamation made under subsection (1) or (2) in
relation to reserved land in the class of private sanctuary or private
nature reserve does not have effect until it is registered in
accordance with section 22.
20. Prohibition of certain names except in reference to reserved land
A person must not use, or cause or permit to be used, alone or in
combination with other words, the name of any class of reserved land
specified in section 11(2) or section 12(1) in reference to any land -
(a) that is not reserved land; or
(b) that is not reserved land of that class.
Penalty:
Fine not exceeding 20 penalty units.
21. Revocation of reservations
(1) Subject to this section, the Governor by proclamation may
declare that any area of land ceases to be, or to form part of,
reserved land.
(2) If an area of land is declared under subsection (1) to
cease to be, or to form part of, reserved land, that area of land
ceases to be, or to form part of, reserved land -
(a) in the case of reserved land in the class of private
sanctuary or private nature reserve, on the day the proclamation is
registered under section 22; or
(b) in any other case -
(i) on the day specified in the proclamation; or
(ii) if a day is not specified in the proclamation, on the day
the proclamation is notified in the Gazette .
(3) A proclamation may not be made under subsection (1) in
respect of a leased reserve.
(4) Subject to subsection (5), a proclamation may not be made
under subsection (1) unless a draft of the proclamation has been first
approved by each House of Parliament.
(5) Subsection (4) does not apply to a proclamation relating
to reserved land in the class of private sanctuary.
(6) A proclamation may not be made under this section in
relation to reserved land in the class of private nature reserve for
which money has been paid under section 25 for the purpose of securing
that reserve unless the Minister tables with the draft proclamation a
certificate to the effect that -
(a) the owner has refunded -
(i) any money paid for the purpose of securing that reserve; or
(ii) an appropriate proportion of that money; or
(b) the owner has refunded -
(i) any money paid for the purpose of ensuring that the
management objectives for the class of private nature reserve are
met; or
(ii) an appropriate proportion of that money; or
(c) the owner has refunded -
(i) any money paid for the purpose of ensuring that the
provisions of any management plan for that private nature reserve
are complied with; or
(ii) an appropriate proportion of that money; or
(d) special circumstances exist, as specified in the certificate,
that obviate the need for the refund of any money.
(7) For the purposes of this section, a House of Parliament is
to be taken to have approved a draft of a proclamation that relates to
reserved land in the class of conservation area, nature recreation
area or regional reserve if a copy of it has been laid on the table of
the House and -
(a) it is approved by the House; or
(b) at the expiration of 5 sitting days after it was laid on the
table of the House, no notice has been given of a motion to
disallow it or, if such notice has been given, the notice has been
withdrawn or the motion has been negatived; or
(c) if any notice of a motion to disallow it is given during that
period of 5 sitting days, the notice is, after the expiration of
that period, withdrawn or the motion is negatived.
22. Registration of proclamation relating to private sanctuary or
private nature reserve
(1) If a proclamation is made under section 12 declaring any
land to be in the class of private sanctuary or private nature
reserve, the Minister, as soon as practicable, is to cause the
proclamation to be registered in respect of that land.
(2) If a proclamation is made under section 19 relating to any
reserved land in the class of private sanctuary or private nature
reserve, the Minister, as soon as practicable, is to cause the
proclamation to be registered in respect of the land to which it
relates.
(3) If a proclamation is made under section 21(1) by which the
whole or any part of reserved land in the class of private sanctuary
or private nature reserve ceases to be, or form part of, reserved
land, the Minister, as soon as practicable, is to cause the
proclamation to be registered in respect of the land to which it
relates.
(4) The provisions of Schedule 3 have effect in relation to
the registration of proclamations referred to in this section.
(5) Nothing in section 40 of the Land Titles Act 1980 is to
be construed as affecting the validity of, or as prejudicing or
affecting the operation of, any proclamation referred to in this
section.
23. Lands subject to trusts
(1) Land that may be acquired under section 14 may be so
acquired subject to a trust for its use for a conservation purpose.
(2) For the purposes of subsection (1), if land is held by
trustees on trust for its use for a conservation purpose those
trustees may, unless the instrument under which the land is held
otherwise provides, surrender that land subject to its continuing to
be held on that trust.
24. Supplementary provisions as to acquisition of land, &c.
(1) Land that may be acquired under section 14 may be acquired
under and in accordance with the Land Acquisition Act 1993 , or by
any means by which land may be surrendered to, or may revert to and
revest in, the Crown.
(2) If any land that may be acquired under section 14 is held
under a single title with other land, the Governor may acquire the
whole or any part of that other land.
(3) If the Governor is authorised under this Act to acquire
any land, that land may be acquired by the exchange for it of any
Crown land, other than reserved land.
(4) An exchange of land under this section may be made on the
terms and conditions agreed, including terms and conditions with
respect to the payment, giving or receipt of any sums or other
consideration by way of equality of exchange.
(5) For the purpose of effecting an exchange of land under
this section, the Governor may grant any Crown land for an estate in
fee simple.
(6) If any land has been acquired under this Part but does not
by that acquisition become reserved land, that land, without prejudice
to the exercise of any other powers of this Act, may be disposed of or
dealt with in accordance with the Crown Lands Act 1976 , or
otherwise, as if it were Crown land within the meaning of that Act.
25. Management agreement for private land
(1) The Minister may enter into any agreement relating to the
use and management of any private land if to do so would, in the
opinion of the Minister, tend to promote -
(a) conservation purposes in relation to that land; or
(b) the purposes for which a private nature reserve or private
sanctuary has been set aside under this Act.
(2) An agreement entered into under this section may involve
the payment of money (whether by way of grant, loan or otherwise) by
the Minister to the owner for the purpose of ensuring that -
(a) the provisions of any management plan for the private land
are complied with; and
(b) if there is not a management plan for the private land and it
is reserved land, the management objectives for that class of
reserved land are met; and
(c) any conservation objectives for the private land are met.
(3) Money is to be paid under this section on the terms and
conditions the Minister, on the recommendation of the Secretary,
agrees to.
(4) Any terms and conditions referred to in subsection (3) may
give the Secretary rights in respect of a private nature reserve or
private sanctuary.
(5) An agreement under this section may include provision for
a conservation covenant under Part 5.
PART 4 - Conservation of Fauna and Flora
26. Wildlife regulations as to fauna
(1) Without limiting the matters in respect of which the
regulations may be made, the regulations, in relation to wildlife or
any form of wildlife, may make provision for the prohibition or
control of -
(a) the taking of wildlife or any products of wildlife; and
(b) the use or having in possession of any hunting equipment
intended to be, or capable of being, used for the purpose of taking
wildlife or any products of wildlife; and
(c) the use of any living thing for the purpose of taking
wildlife or any products of wildlife; and
(d) the keeping or having in possession of wildlife or any
products of wildlife; and
(e) the buying or selling of, or other dealings in, wildlife or
any products of wildlife; and
(f) the exportation or disposal of wildlife or the products of
wildlife.
(2) The wildlife regulations -
(a) may require the payment of royalties in respect of the taking
of any form of wildlife; and
(b) may make provision for the collection of those royalties.
(3) The wildlife regulations may contain -
(a) provisions for the preservation of good order among persons
engaged in taking wildlife or any form of wildlife; and
(b) for the purposes of protecting any crops or property,
provisions -
(i) for authorising or regulating the taking of any form of
wildlife; and
(ii) regulating the disposal of the carcass, or any part of the
carcass, of any wildlife so taken and the application of the
proceeds of that disposal; and
(c) for the purposes of protecting fish farming and other fishing
activity, provisions prohibiting or controlling the use of devices
designed to deter seals from interfering with fish farming and
other fishing activities.
27. Wildlife regulations as to flora
(1) Without limiting the matters in respect of which the
regulations may be made, the regulations may prescribe the plants that
are to be protected plants for the purposes of this Act.
(2) The wildlife regulations may prohibit or control -
(a) the taking or having in possession of a protected plant; and
(b) the buying or selling of, or other dealings in, a protected
plant; and
(c) the exportation or disposal of any protected plant.
28. Supplementary provisions as to wildlife regulations
(1) The wildlife regulations may make differing provisions
with respect to different places or parts of the State and with
respect to different times, places and circumstances.
(2) The wildlife regulations may prohibit the doing of any
act -
(a) during periods, or otherwise than during periods, specified
in the wildlife regulations; and
(b) in places or parts of the State, or otherwise than in places
or parts of the State, specified in the wildlife regulations.
(3) The wildlife regulations may confer powers or discretions
on the Secretary, rangers, persons employed in the Department and
other persons.
(4) The power to make provision in the wildlife regulations
for the prohibition or control of the doing of any act includes power
to make provision for the prohibition of the doing of that act
otherwise than under the authority of a licence or permit.
(5) For the purposes of subsection (4), the wildlife
regulations may provide for -
(a) the terms of a licence or permit referred to in that
subsection; and
(b) the authority granted by that licence or permit; and
(c) the issue, duration, renewal, suspension, cancellation or
surrender of that licence or permit; and
(d) the circumstances in which, or the conditions under which,
that licence or permit may, or may not, be issued or renewed, or
refused to be issued or renewed, or suspended, cancelled or
surrendered.
(6) The wildlife regulations, in relation to any matter that
may be made the subject of prohibition or control under the
regulations, may provide for -
(a) the production, inspection, marking or identification of any
wildlife, products of wildlife or protected plant; and
(b) the giving of notifications and other information to the
Secretary, rangers, persons employed in the Department and other
persons; and
(c) the keeping and production of records.
(7) The wildlife regulations -
(a) may require the payment of fees or charges in respect of -
(i) the issue or renewal of licences or permits issued under the
regulations; and
(ii) applications for the issue or renewal of those licences or
permits; and
(iii) any inspection, marking or identification carried out under
the regulations; and
(b) may provide for the collection of any such fees or charges.
(8) The wildlife regulations may impose penalties for
contraventions of any provision of the wildlife regulations and -
(a) different penalties may be imposed for successive
contraventions of those provisions or any of them; and
(b) a daily penalty, not exceeding 1 penalty unit, may be imposed
in respect of each day for which the contravention continues; and
(c) additional penalties, in addition to any penalty otherwise
prescribed, not exceeding 5 penalty units, may be imposed in
respect of -
(i) each individual creature, the products of each individual
creature or each plant; or
(ii) each piece of hunting equipment -
with respect to which the contravention was committed.
(9) Any penalty imposed pursuant to this section in respect of
any individual contravention, and the aggregate of all the penalties
so imposed, may not exceed 100 penalty units.
(10) A reference in this section to the doing of an act
includes a reference to the keeping of any thing, the having of any
thing in possession and the engaging in any activity or course of
conduct.
(11) Nothing in the wildlife regulations prejudices or affects
the exercise of any authority given by a permit granted under
section 29.
29. Special permits to take wildlife
(1) In this section,
"specified" means specified in a permit granted under
subsection (2).
(2) The Secretary may grant a permit authorising, subject to
compliance with any specified conditions and restrictions, one or more
of the following:
(a) the taking on specified lands of specified wildlife,
specified products of specified wildlife or specified protected
plants;
(b) the keeping or having in possession by a person of specified
wildlife, specified products of specified wildlife or specified
protected plants.
(3) A permit may not be granted under this section in respect
of any reserved land for which a management plan is in force if to do
so would be, or would authorise an activity that is, contrary to the
management plan.
(4) A permit may not be granted under this section -
(a) in respect of any reserved land vested in a public authority
or any private land, except on the application of, or with the
consent of, the public authority in whom the land is vested or the
owner of that land; and
(b) in respect of any reserved land of which a prescribed body is
the managing authority, except on the application of, or with the
consent of, that body; and
(c) in respect of any reserved land of which a Conservation
Management Trust within the meaning of the National Parks and
Reserves Management Act 2002 is the managing authority, except on
the application of, or with the consent of, that Conservation
Management Trust; and
(d) in respect of any other reserved land, except on the
application of, or with or conditional upon the consent of, the
managing authority.
(5) A permit granted under subsection (2)(a) is to specify the
period (being a period not exceeding 12 months in length) for which it
remains in force and, at the end of that period, the permit ceases to
be of further effect.
(6) A permit granted under subsection (2)(b) may specify the
period for which it remains in force and -
(a) if the permit does specify such a period, it ceases to be of
further effect at the end of that period; and
(b) if the permit does not specify such a period, it continues to
have effect until revoked.
(7) At any time, the Secretary may revoke a permit granted
under this section but, if the managing authority was required to be
consulted regarding the grant of the permit, it may not be revoked
without that managing authority being advised of the intention to
revoke it.
(8) The wildlife regulations may make provision for the
payment of fees on the making of an application for, or the grant of,
a permit under this section.
30. Open seasons for partly protected wildlife
(1) The Minister, by order, may determine the seasons, dates
and places on or at which the taking of any form of partly protected
wildlife may -
(a) start and stop; or
(b) be prohibited; or
(c) be permitted.
(2) The order may impose conditions and have differential
application.
(3) A person must not contravene an order.
Penalty:
Fine not exceeding 50 penalty units.
31. Saving for rights of landowners, &c.
The issue of a licence or the granting of a permit under this Part or
the wildlife regulations does not render lawful the entering on any
land that would have been unlawful if that licence had not been issued
or that permit had not been granted.
32. Prohibition on introduction, &c., of certain animals
(1) In this section -
"controlled animal" means -
(a) a mammal, bird, amphibian and reptile; and
(b) any other animal prescribed by the regulations to be a
controlled animal -
but does not include any restricted animal, dog, cat or domestic
stock;
"restricted animal" means -
(a) a fox, wolf, dingo and mink; and
(b) any other animal prescribed by the regulations to be a
restricted animal; and
(c) a hybrid of an animal referred to in paragraph (a) or (b).
(2) A person must not bring into the State, or cause or allow
to be brought into the State, a restricted animal or a controlled
animal unless the importation is in accordance with -
(a) the prior written permission of the Secretary; and
(b) an authority under Part 4 of the Animal Health Act 1995 .
Penalty:
In the case of -
(a) a restricted animal, a fine of not less than 200 penalty
units and not more than 500 penalty units or imprisonment for a
term not less than 2 years and not more than 5 years, or both, for
each animal in respect of which the offence was committed; or
(b) a controlled animal, a fine not exceeding 10 penalty units in
respect of each animal in respect of which the offence was
committed.
(3) A person must not, except in accordance with the prior
written permission of the Secretary -
(a) be in possession of a restricted animal; or
(b) cause or allow a restricted animal, a ferret or a controlled
animal to go at large in the State.
Penalty:
In the case of -
(a) a restricted animal or ferret, a fine of not less than 200
penalty units and not more than 500 penalty units or imprisonment
for a term not less than 2 years and not more than 5 years, or
both, for each animal in respect of which the offence was
committed; or
(b) a controlled animal, a fine not exceeding 10 penalty units in
respect of each animal in respect of which the offence was
committed.
(4) A person must not be in possession of a controlled animal
that has been brought into the State in contravention of
subsection (2).
Penalty:
Fine not exceeding 10 penalty units in respect of each animal in
respect of which the offence was committed.
(5) The Secretary may -
(a) grant permission under subsection (2) or (3) subject to any
conditions he or she thinks fit; or
(b) refuse to grant the permission.
(6) The Secretary may only grant permission under
subsection (2) or (3) in respect of a restricted animal if the
importation, possession or going at large of the restricted animal is
required as part of a program to manage feral populations of animals
of the same species as that restricted animal.
(7) A person who fails to comply with a condition to which a
permission is subject is guilty of an offence.
Penalty:
In the case of -
(a) a restricted animal or ferret, a fine of not less than 200
penalty units and not more than 500 penalty units or imprisonment
for a term not less than 2 years and not more than 5 years, or
both, for each animal in respect of which the offence was
committed; or
(b) a controlled animal, a fine not exceeding 10 penalty units in
respect of each animal in respect of which the offence was
committed.
(8) If a person is in possession of a restricted animal or a
controlled animal, that animal is presumed, until the contrary is
proved, to have been brought into the State without the prior written
permission of the Secretary.
(9) If the Secretary, or a person authorised by the Secretary,
finds or reasonably suspects that a restricted animal or a controlled
animal has been brought into the State by, or is in the possession of,
a person contrary to the provisions of this section, the Secretary or
authorised person may seize it, destroy it, dispose of it or cause it
to be destroyed or disposed of.
(10) Without limiting the ways in which an animal may be
disposed of under subsection (9), the animal may be disposed of by
giving it, together with a permission under subsection (3) in the case
of a restricted animal, to an educational or research institution.
(11) Despite subsection (4), if a controlled animal is
disposed of under subsection (9) by giving it to an educational or
research institution, the institution may possess that animal subject
to any conditions determined by the Director.
(12) The Secretary may charge any person with any costs
incurred in respect of any seizure, destruction or disposal of an
animal carried out under subsection (9).
(13) A person must not, without the prior written permission
of the Secretary or a person authorised by the Secretary, remove or
take away an animal seized under subsection (9).
Penalty:
In the case of -
(a) a restricted animal, a fine of not less than 200 penalty
units and not more than 500 penalty units or imprisonment for a
term not less than 2 years and not more than 5 years, or both, for
each animal in respect of which the offence was committed; or
(b) a controlled animal, a fine not exceeding 10 penalty units in
respect of each animal in respect of which the offence was
committed.
PART 5 - Conservation Covenants
Division 1 - Interpretation of Part
33. Interpretation of Part
In this Part, unless the contrary intention appears -
"affected owner" means an owner of land in respect of which,
under section 19(1) of the Forest Practices Act 1985 , an
application to the Forest Practices Authority for the certification
of a forest practices plan -
(a) has been approved subject to amendments, which have been
agreed to by the applicant, made for the purpose of protecting a
threatened species or protecting a threatened native vegetation
community from clearance and conversion; or
(b) has been approved subject to amendments made for the purpose
of protecting a threatened species or protecting a threatened
native vegetation community from clearance and conversion, and
where an appeal to the Forest Practices Tribunal under section
25(1) of that Act in respect of those amendments has been wholly or
partially dismissed; or
(c) has been refused wholly or partially on the ground that
implementation of the forest practices plan would threaten a
threatened species or involve the clearance and conversion of a
threatened native vegetation community, and where an appeal to the
Forest Practices Tribunal under section 25(1) of that Act in
respect of that refusal has been wholly or partially dismissed;
"arbitrator" means a person nominated by the Forest Practices
Tribunal, as constituted under section 34(7A) of the Forest
Practices Act 1985 , for the purpose of arbitrating disputes under
this Part;
"authorised person" means a person authorised by the Minister
under section 45(1);
"conservation compensation committee" means a special advisory
committee established by the Minister under section 9 for the
purpose of assessing the amount of compensation that is to be paid
to landowners under Division 4;
"conservation covenant" means -
(a) a conservation covenant entered into under this Part; and
(b) a variation of a conservation covenant;
"conservation determination" means a determination made by the
Forest Practices Authority under section 19 of the Forest
Practices Act 1985 to -
(a) certify a forest practices plan subject to amendments made
for the purpose of protecting a threatened species or maintaining a
threatened native vegetation community; or
(b) refuse to certify a forest practices plan application wholly
or partially on the ground that implementation of the proposed
forest practices plan would threaten a threatened species or
involve the clearance and conversion of a threatened native
vegetation community;
"Forest Practices Authority" means the body referred to in
section 4AA of the Forest Practices Act 1985 ;
"Forest Practices Code" means the code of that name issued under
section 30 of the Forest Practices Act 1985 ;
"forest practices plan" has the same meaning as in the Forest
Practices Act 1985 ;
"Forest Practices Tribunal" means the Forest Practices Tribunal
established under section 34 of the Forest Practices Act 1985 ;
"landowner" or "owner of land" means any one or more of the
following:
(a) in the case of a fee simple estate in land, the person in
whom that estate vested;
(b) in the case of land that is not registered under the Land
Titles Act 1980 and is subject to a mortgage, the person having
the equity of redemption in that mortgage, for the time being;
(c) in the case of land held under a tenancy for life, the person
who is the life tenant;
(d) in the case of land held under a lease for a term of not less
than 99 years or for a term of not less than any other prescribed
period, the person who is the lessee of the land;
(e) in the case of land held under any other prescribed interest,
the person who is the holder of the land under that interest;
"registered" means registered under the Land Titles Act 1980 ;
"relevant conservation determination" , in relation to a
landowner, means the conservation determination that makes the
landowner an affected owner;
"servient land" , in relation to a conservation covenant entered
into between the Minister and a landowner, means the land of the
landowner that is subject to the covenant;
"taxon" means a taxonomic group of any rank into which organisms
are categorised;
"threatened native vegetation community" means a community of
native vegetation specified in Schedule 3A;
"threatened species" means a taxon of flora or fauna that is
listed in Schedule 3, 4 or 5 to the Threatened Species Protection
Act 1995 .
Division 2 - Conservation covenants generally
34. Minister may enter into conservation covenants
(1) The Minister on behalf of the Crown may enter into a
conservation covenant with a landowner if the Minister considers it
necessary or desirable to do so for a conservation purpose.
(2) A conservation covenant may contain such covenants and
other provisions as the Minister and the landowner agree.
(3) Without limiting the generality of subsection (2), a
conservation covenant may contain -
(a) provisions relating to the payment of compensation or the
provision of financial or other assistance to the landowner; and
(b) provisions relating to the repayment of money or, if
applicable, the waiver of entitlements to statutory compensation.
(4) A conservation covenant in respect of reserved land in the
class of private sanctuary or private nature reserve may not contain a
provision which is -
(a) inconsistent with the management objectives for that class of
reserved land; or
(b) contrary to, or inconsistent with, a management plan in force
in respect of that reserved land.
(5) A conservation covenant may be a restrictive covenant or a
positive covenant.
(6) A conservation covenant -
(a) runs with the servient land as if it were a covenant to which
section 102(2) of the Land Titles Act 1980 applies; and
(b) is enforceable between the parties to it, and any person
deriving title under any such party, as if the covenant were
entered into by a fee simple owner of land for the benefit of
adjacent land held by the Crown in fee simple that was capable of
being benefited by the covenant and as if that adjacent land
continued to be so held by the Crown.
35. Variation and discharge of conservation covenants
(1) Subject to this section, the Minister on behalf of the
Crown may vary or discharge a conservation covenant at any time by
agreement with the owner of the land that is subject to the covenant.
(2) If a conservation covenant so provides, it is not capable
of being varied or discharged without the prior consent of the Crown
in the right of the Commonwealth.
(3) If the land subject to a conservation covenant is a
private nature reserve, the covenant is not capable of being varied in
a way that might threaten the natural or cultural values of the land,
or of being discharged, until the land ceases to be or form part of a
private nature reserve.
(4) If the landowner has received compensation or financial
payments from the Crown under this Part or any other enactment in
connection with a conservation covenant, it is not capable of being
varied or discharged unless the Minister, by means of a notice
published in the Gazette , has given at least 30 days' notice of his
or her intention to vary or discharge the covenant.
36. Form of conservation covenants
Despite the provisions of the Land Titles Act 1980 and Registration
of Deeds Act 1935 , a conservation covenant, and any variation or
discharge of a conservation covenant, may be in a form approved by the
Recorder.
37. Registration of conservation covenants
(1) As soon as practicable after entering into a conservation
covenant or executing a variation of a conservation covenant, the
Minister must lodge with the Recorder -
(a) an executed copy of the covenant or variation; and
(b) a copy of any management plan in force in relation to the
servient land or any part of the servient land; and
(c) particulars of title to the servient land.
(2) As soon as practicable after executing a discharge of a
conservation covenant, the Minister must lodge an executed copy of the
discharge with the Recorder.
(3) Subject to the provisions of the Land Titles Act 1980 ,
the Recorder must register on the folio of the Register constituting
the title to the servient land the following:
(a) each conservation covenant, and each variation or discharge
of a conservation covenant, lodged under subsection (1) or (2);
(b) any management plan lodged under subsection (1).
(4) If the whole or any part of the servient land is not under
the Land Titles Act 1980 , the relevant conservation covenant may be
dealt with by the Recorder in the same manner as if it were a
conveyance on sale within the meaning of section 17(1)(a) of that Act.
(5) The Recorder may, for the purposes of subsection (4) -
(a) require the Minister to deposit with the Recorder a plan of
any land or part of any land that is subject to a conservation
covenant or to which a management plan relates; and
(b) further require that the plan be made from actual survey and
certified as correct by a surveyor who is registered and
certificated under the Land Surveyors Act 1909 .
38. Covenants come into force on registration
(1) A conservation covenant or a variation of a conservation
covenant comes into force on the day on which the covenant or
variation is registered by the Recorder.
(2) A conservation covenant ceases to be enforceable on the
day on which a discharge of the covenant is registered by the
Recorder.
Division 3 - Covenants arising from refused private timber reserve
applications
39. Covenants for protection of natural or cultural values
(1) The Minister on behalf of the Crown may enter into a
conservation covenant with a landowner under and for the purposes of
section 16(3) of the Forest Practices Act 1985 .
(2) Divisions 2 and 5 have the same application to a
conservation covenant entered into under this Division, and any
variation or discharge of such a covenant, as they have to any other
conservation covenant entered into under this Part.
Division 4 - Covenants arising from forest practices plan
applications
40. Covenants with affected owners
(1) The Minister on behalf of the Crown may enter into a
conservation covenant with an affected owner who applies for
compensation under this Division.
(2) Divisions 2 and 5 have the same application to a
conservation covenant entered into under this Division, and any
variation or discharge of such a covenant, as they have to any other
conservation covenant entered into under this Part.
(3) If the Minister and an affected owner fail to agree on the
provisions of a conservation covenant within 6 months of commencing
negotiations on the covenant, the provisions are to be determined by
an arbitrator in accordance with the Commercial Arbitration Act
1986 .
(4) The determination of an arbitrator under subsection (3) is
final and binding on the Minister and the affected owner.
41. Affected owner entitled to apply for compensation
(1) A landowner may apply to the Minister for compensation for
any financial loss suffered by that landowner as a result of becoming
an affected owner.
(2) An application for compensation is to be made in writing
to the Minister within 180 days of the day on which the landowner
became an affected owner.
(3) As soon as practicable after receiving an application for
compensation, the Minister must, subject to section 41A, notify the
affected owner that the application is -
(a) accepted; or
(b) refused.
41A. Restrictions on entitlement to compensation
(1) A landowner is not entitled to compensation pursuant to
section 41 unless the Minister is satisfied that -
(a) the relevant conservation determination has the effect of
requiring the landowner to exercise a higher duty of care for the
conservation of natural and cultural values on the relevant land
than is required under the Forest Practices Code as in force on the
date of the determination; and
(b) the landowner is not entitled to any, or adequate, financial
consideration from other sources (including voluntary, public or
private, conservation funds) for the financial loss referred to in
that section.
(2) Also, without limiting the generality of subsection (1), a
landowner is not entitled to compensation pursuant to section 41 in so
far as the relevant conservation determination prevents the complete
or partial clearance and conversion of a threatened native vegetation
community unless the Minister is satisfied that -
(a) at the date of the determination, the proposed clearance and
conversion was not prohibited under -
(i) a law of the State other than this Act or the Forest
Practices Act 1985 ; or
(ii) a law of the Commonwealth; and
(b) for at least 2 years before the date of the determination,
the landowner was actively managing the relevant land with the
reasonable intention of undertaking the proposed clearance and
conversion; and
(c) the landowner has undertaken to manage the threatened native
vegetation community under a conservation covenant or management
agreement.
42. Assessment of compensation
(1) Any compensation to be paid to a landowner under this
Division is to be assessed, as soon as practicable, by a conservation
compensation committee.
(2) In assessing the amount of compensation that is to be paid
to a landowner under this Division, the conservation compensation
committee -
(a) must give the Minister and the landowner a reasonable
opportunity to make submissions to the committee; and
(b) may have regard to any matters the committee considers
relevant; and
(c) must have regard to the following matters:
(i) the value of any standing timber on the relevant land;
(ii) if the relevant land is forested, any timber-growing
potential of the relevant land unable to be realised;
(iii) the value of any agricultural activities being carried out
on the relevant land;
(iv) any agricultural potential of the relevant land unable to be
realised;
(v) any government restrictions relating to threatened species of
flora or fauna, including restrictions under the Forest Practices
Code, 1987 existing as at the date of commencement of the Public
Land (Administration and Forests) Act 1991 ;
(va) any government restrictions relating to the clearance and
conversion of threatened native vegetation communities, including
restrictions under the Forest Practices Code as from time to time
in force;
(vb) in respect of the conservation of natural and cultural
values on the relevant land, the extent to which the duty of care
that the landowner is being required to exercise regarding those
values exceeds the duty of care required under the Forest Practices
Code as in force on the date of the relevant conservation
determination;
(vi) the amount of any land tax or municipal rates payable in
respect of the relevant land, and whether the landowner is entitled
to receive any remission of such charges;
(vii) the likely impact of a conservation covenant on the use of
other land of the landowner;
(viii) any reasonable costs incurred, or likely to be incurred,
by the landowner as a result of the landowner entering into a
conservation covenant in respect of the relevant land, other than
the costs of any arbitration or legal proceedings.
(3) If -
(a) the Minister or the landowner disputes the amount of
compensation assessed by the conservation compensation committee;
and
(b) the Minister and the landowner cannot otherwise agree as to
the amount of compensation -
the amount of compensation may be determined by an arbitrator in
accordance with the Commercial Arbitration Act 1986 .
(4) An affected owner who does not accept the amount of
compensation assessed by the conservation compensation committee and
who -
(a) refuses to have the amount of compensation determined by an
arbitrator pursuant to subsection (3); or
(b) does not accept the determination of an arbitrator made
pursuant to subsection (3) -
is to be taken to have withdrawn his or her application for
compensation.
43. Payment of compensation
(1) Any compensation paid by the Minister to a landowner
pursuant to a conservation covenant under this Division is -
(a) payable from funds made available for the purpose by
Parliament; and
(b) payable in such manner and over such period of time as the
Minister and the landowner agree or, failing such agreement, as
determined by an arbitrator in accordance with the Commercial
Arbitration Act 1986 .
(2) Despite subsection (1)(b), a conservation covenant under
this Division that provides for the payment of compensation to a
landowner is to provide for an initial payment of part of that
compensation to be made to the landowner at the time the covenant
comes into force.
(3) If there is more than one owner of land that is subject to
a conservation covenant under this Division, any payment of
compensation made by the Minister under this Part is to be divided
between those landowners according to their respective interests.
44. Effect of failure to pay compensation
(1) This section applies to -
(a) an affected owner whose application to the Minister for
compensation has been refused by the Minister pursuant to
section 41(3)(b); and
(b) an affected owner in respect of whom the Minister has not
accepted the determination of an arbitrator made pursuant to
section 42(3); and
(c) an affected owner or other landowner who has entered into a
conservation covenant under this Division but has not, within the
period of 180 days immediately after the day on which he or she
notified the Minister that he or she would accept an offer of
compensation under this Part, received -
(i) any compensation; or
(ii) the full amount of the initial instalment of compensation
provided for in the covenant.
(2) The 180 day period referred to in subsection (1)(c) is
exclusive of any period of time during which the affected owner has
been a party to any arbitration or legal proceedings in respect of a
matter under this Part.
(3) A landowner to whom subsection (1)(c) applies may notify
the Minister in writing that he or she requires the conservation
covenant referred to in that subsection to be discharged.
(4) If the Minister receives a notification from a landowner
under subsection (3), the Minister must -
(a) if satisfied that there has been a failure to pay
compensation to that landowner; and
(b) if any compensation paid to that landowner has been repaid to
the Minister -
lodge an executed discharge of the relevant conservation covenant with
the Recorder without undue delay.
(5) A landowner is not required to pay interest in respect of
any compensation that is repaid to the Minister under this section.
(6) If a conservation covenant is discharged at the request of
a landowner in accordance with this section, an action does not lie
against the Crown in respect of any failure to pay compensation to the
landowner under this Part.
(7) A landowner to whom this section applies may reapply to
the Forest Practices Authority under section 18(1)(b) of the Forest
Practices Act 1985 for the certification of the relevant forest
practices plan.
(8) Subject to subsection (9), if a forest practices plan is
submitted to the Forest Practices Authority under subsection (7), the
Forest Practices Authority has no power -
(a) to refuse to certify the plan on the grounds that
implementation of the plan would adversely affect a threatened
species of flora or fauna or a threatened native vegetation
community which has previously been considered by that Authority in
respect of that plan; or
(b) to amend the plan for the purpose of protecting a threatened
species of flora or fauna or a threatened native vegetation
community which has previously been considered by that Authority in
respect of that plan -
and, if that plan is otherwise certified, the Forest Practices
Authority has no power -
(c) to amend the plan under section 22 of the Forest Practices
Act 1985 for the purpose of protecting a threatened species of
flora or fauna or a threatened native vegetation community which
has previously been considered by that Authority in respect of that
plan; or
(d) to refuse an application to vary the plan under section 23 of
the Forest Practices Act 1985 on the ground that implementation
of the variation of the plan would adversely affect a threatened
species of flora or fauna or a threatened native vegetation
community which has previously been considered by that Authority in
respect of that plan.
(9) Nothing in subsection (8) prohibits the Forest Practices
Authority from enforcing a restriction contained in the Forest
Practices Code, 1987.
(10) Subsections (7) and (8) have effect despite any other
enactment.
Division 5 - Provisions of general application
45. Power to inspect land subject to conservation covenant
(1) Subject to this section, a person who is authorised by the
Minister to do so may, at any reasonable time and without any
interference from the owner of the land or any other person -
(a) enter on and inspect land that is subject to a conservation
covenant; or
(b) enter on and inspect land in respect of which an affected
owner has made an application for compensation under section 41.
(2) For the purpose of subsection (1), the authorised person
must give reasonable notice of the proposed entry to the owner of the
land.
(3) The Minister and the owner of any land that is subject to
a conservation covenant may enter into an agreement in relation to the
method of access to that land by an authorised person.
(4) If an agreement is in force under subsection (3) in
relation to any land, the method of access to that land is to be in
accordance with the agreement except -
(a) in the case of an emergency; or
(b) if, in the circumstances, the Minister considers that method
of access would be unreasonable.
(5) The Minister is to keep the owner of any land that is
subject to a conservation covenant indemnified against any loss,
damage or legal liability arising from entry to that land and
attributable to any act or omission of the Minister or an authorised
person in respect of -
(a) personal injury to, or the death of, any person; or
(b) any damage to property on that land.
46. Offence to contravene conservation covenant
(1) A person against whom a conservation covenant is
enforceable must not contravene that covenant.
Penalty:
Fine not exceeding 100 penalty units.
(2) A court that convicts a person of an offence under
subsection (1), in addition to any penalty it imposes under that
subsection -
(a) must order that person to pay to the Crown the amount the
court considers appropriate having regard to any compensation that
has been paid to that person, or to any previous owner of the land
that is subject to the covenant, by virtue of the covenant; and
(b) may order that person to pay to the Crown the amount the
court considers appropriate having regard to any loss, or costs,
incurred by the Crown as a result of the breach of the covenant;
and
(c) must order that person to pay to the Crown the amount the
court considers appropriate of any financial gain made by that
person as a result of or in connection with the breach of the
covenant.
47. Service of applications, &c.
An application, notification or other document required to be served
on a person under this Part may be sent by post or delivered
personally.
PART 6 - Provisions Relating to Enforcement
48. Interpretation of "found offending"
Section 55(5) of the Police Offences Act 1935 applies in respect of
this Part as it applies in respect of that section as if the reference
in that subsection to that Act were a reference to this Act.
49. Power to require offenders to disclose identity and leave land
(1) If an authorised officer has reasonable grounds for
believing that a person has committed, or is committing, an offence
against this Act, he or she may require that person to state his or
her name and residential address.
(2) If a person is found offending within any reserved land
against any provision of this Act, an authorised officer may require
the person to leave the reserved land.
(3) The owner or occupier, or an employee or agent of an owner
or occupier, of any land may require any person trespassing on that
land whom he or she has reasonable grounds for believing has
committed, or is committing, an offence against this Act -
(a) to state his or her name and residential address; and
(b) to leave that land.
(4) A person who, when required under this section to state
his or her name and residential address, fails or refuses to do so, or
gives a name or residential address that is false, is guilty of an
offence.
(5) A person who, when required under this section to leave
any land, refuses to do so, or does not do so with reasonable
expedition, is guilty of an offence.
50. Production of licences, &c.
An authorised officer may require any person to produce any licence,
permit or other document issued to the person under this Act or the
National Parks and Reserves Management Act 2002 and any person who
fails or refuses to comply with such a requirement is guilty of an
offence.
51. Powers and functions of seizure
(1) If an authorised officer has reasonable grounds for
believing that an offence has been committed under this Act with
respect to any wildlife, the products of any wildlife or any plant,
the authorised officer may seize one or more of the following:
(a) that wildlife, those products or that plant;
(b) any products of that wildlife.
(2) An authorised officer is to seize any hunting equipment
that the officer has reasonable grounds for believing has been or is
being used in, or in connection with, the commission of an offence
under this Act.
(3) An authorised officer may seize any thing that the officer
has reasonable grounds for believing has been taken by, or is in the
possession of, a person contrary to the provisions of this Act.
(4) An authorised officer may seize a licence, permit or other
document issued under this Act if the officer has reasonable grounds
for believing that the holder of the licence, permit or other document
has committed an offence under this Act.
(5) An authorised officer may seize any record or document -
(a) relating to trade in wildlife or other wildlife matters; or
(b) that appears to indicate that an offence under this Act has
been, or is being, committed.
(6) An authorised officer may seize any living thing that he
or she has reasonable grounds for believing has been used for the
purpose of taking wildlife contrary to the provisions of this Act.
(7) If any hunting equipment, licence, permit, record or other
document or any other animate or inanimate thing is seized under this
Act, the person by whom it was seized may, subject to the directions
of the Secretary or some person authorised by the Secretary, retain it
until the determination of any proceedings that may be instituted in
respect of an offence against this Act against the person from whom it
was seized.
(8) If any hunting equipment, licence, permit, record or other
document or any other animate or inanimate thing has been seized from
any person under this Act and no proceedings have been instituted
against that person for an offence on conviction for which it may be
forfeited to the Crown, a court of petty sessions, on the application
of that person, may direct it to be returned to that person and, on
the making of that direction, the authority under subsection (7) to
retain it ceases.
(9) A person who, when required to do so by an authorised
officer, refuses to deliver to that officer any hunting equipment,
licence, permit, record or other document, or any other animate or
inanimate thing, that the officer is entitled to seize under this Act
is guilty of an offence.
52. Powers of entry and search
(1) If an authorised officer has reason to believe that any
thing which he or she is entitled to seize under this Act is in or on
any premises, conveyance or container, the officer may search those
premises, that conveyance or that container.
(2) An authorised officer may inspect and search any premises
or conveyance where -
(a) any wildlife, any products of wildlife or any plants are kept
for sale, or offered or exposed for sale; or
(b) the authorised officer has reasonable grounds for believing
that any wildlife, any products of wildlife or any plants are kept
for sale, or offered or exposed for sale.
(3) An authorised officer may inspect and search any premises
at which any person, under any licence or permit issued or granted
under the wildlife regulations or section 29, is authorised to keep or
have in possession any wildlife.
(4) For the purposes of conducting a search under this section
in a conveyance, an authorised officer may require that conveyance to
be stopped and, if it is on reserved land or on any water, the
authorised officer may bring it, or cause or require it to be brought,
to some convenient place for the search to be carried out.
(5) In exercising the powers conferred, or in performing the
functions imposed, by section 51 or this section, an authorised
officer may do any or all of the following things at all reasonable
times, without warrant:
(a) enter any premises, conveyance or container;
(b) in any premises, conveyance or container lawfully entered,
search for, examine, make copies of or take extracts from any
record or other document -
(i) relating to trade in wildlife or other wildlife matters; or
(ii) that appears to indicate that an offence under this Act has
been, or is being, committed;
(c) in any premises, conveyance or container lawfully entered,
open any container.
(6) For the purpose of facilitating the exercise of his or her
powers under this section in respect of any premises, conveyance or
container, an authorised officer may require the person apparently in
charge of those premises, that conveyance or that container, or any of
the person's employees or agents, to afford the authorised officer
such assistance as he or she may require.
(7) A person who, without reasonable excuse (the proof of
which lies on that person) refuses or fails to comply with any
requirements made to him or her by an authorised officer under this
section is guilty of an offence.
(8) In exercising the powers conferred, or in performing the
functions imposed, by section 51 or this section, an authorised
officer must not enter any premises, or any part of any premises, used
as a principal residence except where the officer has obtained a
warrant under subsection (9) or the permission of the occupier to
enter the residence.
(9) If a magistrate or justice is satisfied, on the
application of an authorised officer, that there is reasonable cause
to permit entry to any premises, or any part of any premises, used as
a principal residence, the magistrate or justice may issue a warrant
authorising an authorised officer to enter the premises or the part of
premises specified in the warrant for the purposes of exercising the
powers conferred, and the functions imposed, by section 51 or this
section in those premises or that part.
(10) A warrant issued under subsection (9) -
(a) is valid for a period of 30 days; and
(b) authorises all persons acting in aid of an authorised officer
to enter the premises, or the part of premises, specified in the
warrant.
53. Powers of arrest
An authorised officer may arrest, without warrant, any person found
offending who -
(a) fails or refuses, on demand, to give his or her full name and
residential address; or
(b) gives any name or residential address that the officer has
reasonable grounds for believing is false; or
(c) does not deliver up to that officer, on demand, any thing in
his or her possession or under his or her control, that the officer
is entitled to seize under this Act.
54. Commencing proceedings
Despite section 26 of the Justices Act 1959 , proceedings for a
summary offence against this Act may be commenced within 5 years after
the act or omission giving rise to the proceedings occurred.
55. Penalty
A person who is guilty of an offence against this Part is liable to a
fine not exceeding 10 penalty units or imprisonment for a term not
exceeding 6 months, or both.
56. Production and cancellation of licences, &c., in offence
proceedings
(1) The holder of a licence, permit or other document issued
under this Act who is charged with an offence under this Act must
produce the licence, permit or other document to the court which is
hearing the charge except where the holder has a reasonable excuse for
not doing so.
Penalty:
Fine not exceeding 2 penalty units.
(2) If a person fails to comply with subsection (1) in respect
of any charge, the court before which he or she is charged may
immediately, and on its own knowledge of the offence, convict him or
her of the offence and impose a penalty on that conviction.
(3) If a person is convicted of an offence under this Act, the
court may make an order doing any one or more of the following in
addition to, or instead of, imposing any other penalty:
(a) cancelling any licence, permit or other document issued to
the person under this Act;
(b) prohibiting the person from applying for, or being granted or
issued, a licence, permit or other document under this Act for the
period specified in the order;
(c) prohibiting the person from being in possession or control of
any hunting equipment for the period specified in the order.
(4) The cancellation of a licence, permit or other document
under subsection (3) takes effect on the day on which the order is
made.
(5) If a licence, permit or other document is ordered to be
cancelled under subsection (3), the clerk of the court is to, if that
licence, permit or other document is available to the clerk -
(a) endorse on that licence, permit or other document a statement
that the licence, permit or other document has been cancelled; and
(b) cause that licence, permit or other document to be delivered
to the Secretary.
57. Cancellation of firearms licence
(1) In this section,
"firearms licence" has the same meaning as in the Firearms Act
1996 .
(2) If a person is convicted of an offence against this Act
and the behaviour constituting the offence involved the use of a
firearm, the court may, in addition to imposing any other penalty,
make an order doing any one or more of the following:
(a) cancelling or suspending a firearms licence held by that
person;
(b) prohibiting the person from applying for, or being granted or
issued, a firearms licence during the period specified in the
order.
(3) The clerk of the court which made an order under
subsection (2) must provide the Commissioner of Police with a copy of
the order.
(4) On receipt of a copy of an order provided under
subsection (3), the Commissioner of Police must, by notice in writing
served on the person to whom the order relates, notify that person of
the terms of the order and require that person to surrender to the
Commissioner of Police any firearms licence and any firearm held by
the person.
(5) The cancellation or suspension of a firearms licence under
this section takes effect when the notice referred to in
subsection (4) is served on the holder of the licence.
(6) A notice referred to in subsection (4) is effectively
served on a person if it is -
(a) given to the person; or
(b) left at, or sent by post to, the person's postal or
residential address or the place or address of business or
employment last known to the server of the notice.
58. Contravention of order under section 56(3)
(1) A person who contravenes or fails to comply with an order
made under section 56(3)(c) is guilty of an offence.
(2) If an authorised officer has reasonable grounds for
believing that a person has committed an offence under subsection (1),
the authorised officer may, without warrant -
(a) arrest that person; and
(b) for the purpose of arresting that person -
(i) enter, by force if necessary, any premises on which the
authorised officer has reasonable grounds for believing that person
is present; and
(ii) search those premises.
59. Forfeiture of articles, &c., on conviction
(1) Any wildlife, products of wildlife or plants taken, had in
possession, bought, sold, dealt with, exported or disposed of in
contravention of this Act are forfeited to the Crown, and the
conviction of any person for any such contravention has effect as a
condemnation of that wildlife, those products or those plants without
the necessity of a complaint being laid for that condemnation.
(2) On the conviction of a person of an offence under this
Act, hunting equipment is forfeited to the Crown -
(a) if it was used in, or in connection with, the commission of
that offence; or
(b) if the offence was committed in relation to it.
(3) On convicting a person of an offence under this Act, the
court may order hunting equipment referred to in subsection (2) to be
returned to another person if the court is satisfied that -
(a) the other person owns or has an interest in the equipment;
and
(b) the equipment was used in or in connection with the
commission of the offence, or the offence was committed in relation
to the equipment, without the consent of the other person; and
(c) it would be unjust to the other person for the equipment to
be forfeited to the Crown.
(4) On conviction for an offence under this Act, the court may
declare forfeited to the Crown anything seized under section 51(3).
(5) Any wildlife, products of wildlife, plants, hunting
equipment or other things forfeited under this section are to be
disposed of in the prescribed manner or, if no manner is prescribed,
as the Secretary determines.
60. Compensation on conviction for offences
(1) In this section, "appropriate authority" means the owner
(if any) of the property or creature in respect of which the sum was
ordered to be paid.
(2) If a person is convicted of an offence under this Act and,
in or as a result of the commission of that offence, damage or injury
was caused to any property or any wildlife was taken, the court by
which the person is convicted may, in addition to, or instead of,
imposing any penalty or making any other order on that conviction,
order that person to pay to the appropriate authority such sum as it
thinks reasonable by way of compensation for the damage or injury or
the taking of the wildlife.
61. Protection of authorised officers
No action lies in respect of the giving of advice, or the failure to
give advice, by any authorised officer while he or she is acting in
good faith in the administration of this Act.
PART 7 - Infringement Notices
62. Infringement notices
(1) An authorised officer may serve an infringement notice on
a person if of the opinion that the person has committed a prescribed
offence.
(2) An infringement notice is to be in accordance with section
14 of the Monetary Penalties Enforcement Act 2005 .
63. Payments into Consolidated Fund
Any payments in respect of an infringement notice are payable into the
Consolidated Fund.
64.
65.
66.
67.
68. Regulations for this Part
Without limiting the matters in respect of which the regulations may
be made, the regulations may make provision for the purposes of this
Part, including but not limited to, the following matters:
(a) providing that a contravention of any of the regulations is a
prescribed offence for the purposes of this Part;
(b) providing, in respect of such an offence, for the imposition
of a fine not exceeding 10 penalty units and, in the case of a
continuing offence, a further fine not exceeding 5 penalty units
for each day during which the offence continues.
PART 8 - Miscellaneous
69. Capacity, &c., to consent
(1) A body corporate may give any consent for the purposes of
this Act, notwithstanding that, apart from this subsection, it would
have no power or capacity to give that consent.
(2) Nothing in this Act entitles the owner of any land to give
any consent for the doing of anything in relation to that land in
derogation of the estate of any other person in occupation of that
land without the consent of that other person.
70. Assistance to officers
(1) In this section,
"officer" means the Secretary, a person employed in the
Department or a ranger.
(2) If a person has been requested to assist an officer
carrying out his or her functions under this Act and is willing to do
so, another person must not, either directly or indirectly, prevent,
dissuade, hinder, impede or obstruct that person from assisting that
officer or from proceeding to a place for the purpose of assisting
that officer.
71. Compensation for injury or death occurring in the course of
official duty, &c.
(1) In this section -
"dependants" has the same meaning as it has in the Workers
Rehabilitation and Compensation Act 1988 ;
"officer" means the Secretary, a person employed in the
Department or a ranger.
(2) If -
(a) a ranger is killed or suffers personal injury in the course
of carrying out official functions or dies as a result of personal
injury so suffered; or
(b) a person (not being an officer) is killed or suffers personal
injury in the course of assisting an officer carrying out official
functions under the supervision of that officer, or dies as a
result of personal injury so suffered -
and that ranger or other person is not, or as the case may be, his or
her dependants are not, entitled to compensation under the Workers
Rehabilitation and Compensation Act 1988 in respect of the injury or
death, that ranger or other person is, or in the case of his or her
death, his or her dependants are, entitled to compensation as provided
in this section.
(3) A ranger or other person is taken to be carrying out
official functions -
(a) when he or she is carrying out any functions or exercising
any powers conferred on him or her by this Act; or
(b) while he or she is travelling in either direction between his
place of residence or place of employment and the place at which
those functions are being, are to be or have been carried out.
(4) A person is taken to be assisting an officer carrying out
official functions while he or she is travelling in either direction
between his or her place of residence or place of employment and the
place at which those functions are being, are to be or have been
carried out.
(5) Subject to subsection (6), the compensation payable to a
ranger or other person under this section is to be such amount as the
Governor, on the recommendation of the Secretary, determines.
(6) Compensation under this section is to be calculated in
accordance with the Workers Rehabilitation and Compensation Act
1988 .
(7) A ranger or other person by whom, or on whose behalf,
compensation under this section is claimed is to, if so required by
the Secretary, submit to the Secretary such evidence in support of his
or her claim, and such medical certificates, as the Secretary
requires, and such other information, if any, as may be prescribed.
(8) The compensation payable to a ranger or other person under
this section is to be defrayed out of moneys to be provided by
Parliament for the purpose.
72. Gifts for conservation purposes
(1) If any money or other property is given, devised or
bequeathed for any conservation purpose under this Act, that money, or
the proceeds of the realisation of that property, may be paid into a
special deposit account or trust account established under Part III of
the Public Account Act 1986 , and the moneys for the time being
standing to the credit of that account are not to be applied otherwise
than for that purpose.
(2) Any interest arising from the investment of moneys paid
into a special deposit account or trust account established pursuant
to this section is to be paid into that account.
(3) Nothing in this section prejudices or affects the
operation of any trust to which any money or other property is
subject.
73. Aboriginal cultural activities on Aboriginal land
(1) In this section -
"Aboriginal cultural activity" means the activity of hunting,
fishing or gathering undertaken by an Aboriginal person for his or
her personal use based on Aboriginal custom of Tasmania as passed
down to that Aboriginal person;
"Aboriginal land" has the same meaning as in the Aboriginal
Lands Act 1995 ;
"Aboriginal person" has the same meaning as in the Aboriginal
Lands Act 1995 .
(2) Nothing in this Act precludes an Aboriginal cultural
activity by an Aboriginal person on Aboriginal land, so long as that
activity is not likely, in the opinion of the Minister, to have a
detrimental effect on fauna and flora and is consistent with this Act.
74. Expenses of Act
(1) In this section,
"special account" means a trust account established under
subsection (3).
(2) Except as otherwise expressly provided by this Act, all
moneys received by, or on behalf of, the Minister, the Minister for
Crown Lands or the Secretary under this Act are to be paid into the
Consolidated Fund, and the expenses incurred in the administration of
this Act are to be defrayed out of moneys provided by Parliament for
the purpose.
(3) In accordance with Part III of the Public Account Act
1986 , trust accounts may be established with respect to any matter
for which the Secretary has responsibility under this Act.
(4) Except as the Treasurer otherwise directs, all moneys
received by, or on behalf of, the Secretary for the purposes of a
special account are to be paid into that account.
(5) Except as the Treasurer otherwise directs, the moneys for
the time being standing to the credit of a special account are to be
applied, as the Secretary determines, in meeting expenses incurred in
connection with the matter for which the account was established.
75. Delegation by Minister
The Minister may delegate any of his or her functions or powers under
this Act other than this power of delegation.
76. Regulations
(1) The Governor may make regulations for the purposes of this
Act.
(2) Nothing in the regulations prohibits the doing of anything
required to be done for the purposes of complying with any other Act.
(3) Without limiting the generality of subsection (1)
regulations made under this subsection may make provision for or with
respect to -
(a) the payment and collection of fees by any person in relation
to any act, matter or thing done or arising under this Act; and
(b) the remission of, or exemption from liability for, any such
fees.
(4) The regulations may -
(a) be of general or specially limited application; and
(b) apply differently according to matters, limitations or
restrictions, whether as to time, circumstance or otherwise,
specified in the regulations; and
(c) authorise any matter to be from time to time determined,
applied or regulated by the Minister, the Secretary or another
person performing functions under this Act as specified in the
regulations.
(5) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of this Act or the
National Parks and Reserves Management Act 2002 .
(6) A provision referred to in subsection (5) may take effect
on and from the day on which this Act commences or a later day.
(7) The regulations may rescind regulations or other
subordinate legislation made under the National Parks and Wildlife
Act 1970 .
76A. Amendment of Schedule 3A
(1) The Minister, by order, may amend Schedule 3A by doing one
or more of the following:
(a) inserting an item in the Schedule;
(b) omitting an item from the Schedule;
(c) omitting an item from the Schedule and substituting a new
item.
(2) The provisions of section 47(3), (3A), (4), (5), (6) and
(7) of the Acts Interpretation Act 1931 apply to an order under
subsection (1) as if the order were regulations within the meaning of
that Act.
(3) An order under this section is not an instrument of a
legislative character for the purpose of the Subordinate Legislation
Act 1992 .
77. Savings and transitional provisions
The savings and transitional provisions set out in Schedule 4 have
effect.
78. Administration of Act
Until provision is made in relation to this Act by order under section
4 of the Administrative Arrangements Act 1990 -
(a) the administration of this Act is assigned to the Minister
for Primary Industries, Water and Environment; and
(b) the department responsible to that Minister in relation to
the administration of this Act is the Department of Primary
Industries, Water and Environment.
SCHEDULE 1 - Determination of class of reserved land
Sections 3 and 16
Column 1
Column 2
Column 3
Class of reserved land
Values of land
Purposes of reservation
1.
National park
A large natural area of land containing a representative or
outstanding sample of major natural regions, features or scenery.
The protection and maintenance of the natural and cultural values of
the area of land while providing for ecologically sustainable
recreation consistent with conserving those values.
2.
State reserve
An area of land containing any of the following:
The protection and maintenance of any one or more of the following:
(a) significant natural landscapes;
(a) the natural and cultural values of the area of land;
(b) natural features;
(b) sites, objects or places of significance to Aboriginal people
contained in that area of land;
(c) sites, objects or places of significance to Aboriginal people.
(c) use of the area of land by Aboriginal people -
while providing for ecologically sustainable recreation consistent
with conserving any of the things referred to in paragraphs (a), (b)
and (c), as applicable.
3.
Nature reserve
An area of land that contains natural values that -
The conservation of the natural biological diversity or geological
diversity of the area of land, or both, and the conservation of the
natural values of that area of land that are unique, important or have
representative value.
(a) contribute to the natural biological diversity or geological
diversity of the area of land, or both; and
(b) are unique, important or have representative value.
4.
Game reserve
An area of land containing natural values that are unique, important
or have representative value particularly with respect to game
species.
The conservation of the natural values of the area of land that are
unique, important or have representative value, the conservation of
the natural biological diversity or geological diversity of that area
of land, or both, and the ecologically sustainable hunting of game
species in that area of land.
5.
Conservation area
An area of land predominantly in a natural state.
The protection and maintenance of the natural and cultural values of
the area of land and the sustainable use of the natural resources of
that area of land.
6.
Nature recreation area
An area of land -
Public recreation and education consistent with conserving the natural
and cultural values of the area of land.
(a) predominantly in a natural state; or
(b) containing sensitive natural sites of significance for
recreation.
7.
Regional reserve
An area of land -
Mineral exploration and the development of mineral deposits in the
area of land, and the controlled use of other natural resources of
that area of land, while protecting and maintaining the natural and
cultural values of that area of land.
(a) with high mineral potential or prospectivity; and
(b) predominantly in a natural state.
8.
Historic site
An area of land of significance for historic cultural heritage.
The conservation of the historic features of the area of land and the
presentation of those features for public appreciation and education.
9.
Private sanctuary
An area of land that has significant natural or cultural values, or
both.
The protection and maintenance of the natural or cultural values of
the area of land, or both, while permitting the carrying out of
agricultural or other activities on that land consistent with
conserving those values.
10.
Private nature reserve
An area of land that contains natural values that -
The conservation of the natural biological diversity or geological
diversity of the area of land, or both, and the conservation of the
natural values of that area of land that are unique, important or have
representative value.
(a) contribute to the natural biological diversity or geological
diversity of the area of land, or both; and
(b) are unique, important or have representative value.
SCHEDULE 2 - Objectives of the Resource Management and Planning
System of Tasmania
Section 3(1)
1. The objectives of the resource management and planning system of
Tasmania are -
(a) to promote the sustainable development of natural and
physical resources and the maintenance of ecological processes and
genetic diversity; and
(b) to provide for the fair, orderly and sustainable use and
development of air, land and water; and
(c) to encourage public involvement in resource management and
planning; and
(d) to facilitate economic development in accordance with the
objectives set out in paragraphs (a), (b) and (c); and
(e) to promote the sharing of responsibility for resource
management and planning between the different spheres of
Government, the community and industry in the State.
2. In item 1(a),
"sustainable development" means managing the use, development and
protection of natural and physical resources in a way, or at a
rate, which enables people and communities to provide for their
social, economic and cultural wellbeing and for their health and
safety while -
(a) sustaining the potential of natural and physical resources to
meet the reasonably foreseeable needs of future generations; and
(b) safeguarding the life-supporting capacity of air, water, soil
and ecosystems; and
(c) avoiding, remedying or mitigating any adverse effects of
activities on the environment.
SCHEDULE 3 - Registration of Proclamations Referred to in section 22
Section 22
1. Interpretation
In this Schedule,
"Register" has the same meaning as it has in the Land Titles Act
1980 .
2. Registering proclamations under section 22(1)
(1) A proclamation required to be registered under
section 22(1) is to be registered by lodging with the Recorder -
(a) a copy of the proclamation; and
(b) particulars of the title to the land to which the
proclamation relates that is not Crown land or land vested in a
public authority.
(2) If a proclamation has been lodged under subclause (1), the
Recorder is to record the proclamation on the folio of the Register
constituting the title to the land to which the proclamation relates
that is not Crown land or land vested in a public authority.
3. Procedure where land not under Land Titles Act 1980
(1) If the whole or any part of the land referred to in
clause 2(1)(b) is not under the Land Titles Act 1980 , the Recorder
is to bring under that Act so much of the land that is not under that
Act by registering a qualified title to it in accordance with section
21 of that Act.
(2) If part only of the land referred to in clause 2(1)(b) to
which a proclamation relates is required to be brought under the Land
Titles Act 1980 by this clause, the Recorder is to issue a
consolidated title to the whole of the land and for that purpose may
call in and cancel in accordance with section 163 of that Act the
certificates of title to the parts of the land.
(3) The Recorder is not bound, for the purposes of
subclause (1), to investigate the title to any land.
4. Registering proclamations under section 22(2) and (3)
(1) A proclamation required to be registered under
subsection (2) or (3) of section 22 -
(a) is to contain particulars of the title to the area of the
private sanctuary or private nature reserve -
(i) to which it relates, in the case of a proclamation required
to be registered under subsection (2) of that section; or
(ii) ceasing to be, or to form part of, reserved land in the
class of private sanctuary or private nature reserve by virtue of
the proclamation, in any other case; and
(b) is to be registered by lodging with the Recorder a copy of
the proclamation.
(2) If a proclamation has been lodged under subclause (1), the
Recorder is to record on the folio of the Register constituting the
title to the area of the private sanctuary or private nature reserve
to which the proclamation relates -
(a) particulars of the alteration or name contained in the
proclamation, in the case of a proclamation required to be
registered under section 22(2); or
(b) a statement that that area of land has ceased to be, or to
form part of, reserved land in the class of private sanctuary or
private nature reserve declared by the proclamation previously
registered in respect of that land, in any other case.
5. Registration fee not payable
A fee is not payable in respect of the registration of a proclamation
in accordance with this Schedule.
SCHEDULE 3A - Threatened native vegetation communities
Section 33
1. Alkaline pans
2. Allocasuarina littoralis forest
3. Athrotaxis cupressoides/Nothofagus gunnii short rainforest
4. Athrotaxis cupressoides open woodland
5. Athrotaxis cupressoides rainforest
6. Athrotaxis selaginoides/Nothofagus gunni short rainforest
7. Athrotaxis selaginoides rainforest
8. Athrotaxis selaginoides subalpine scrub
9. Banksia marginata wet scrub
10. Banksia serrata woodland
11. Callitris rhomboidea forest
12. Coastal complex on King Island
13. Cushion moorland
14. Eucalyptus amygdalina forest and woodland on sandstone
15. Eucalyptus amygdalina inland forest and woodland on cainozoic
deposits
16. Eucalyptus brookeriana wet forest
17. Eucalyptus globulus dry forest and woodland
18. Eucalyptus globulus King Island forest
19. Eucalyptus morrisbyi forest and woodland
20. Eucalyptus ovata forest and woodland
21. Eucalyptus risdonii forest and woodland
22. Eucalyptus tenuiramis forest and woodland on sediments
23. Eucalyptus viminalis - Eucalyptus globulus coastal forest and
woodland
24. Eucalyptus viminalis Furneaux forest and woodland
25. Eucalyptus viminalis wet forest
26. Heathland on calcarenite
27. Heathland scrub complex at Wingaroo
28. Highland grassy sedgeland
29. Highland Poa grassland
30. Melaleuca ericifolia swamp forest
31. Melaleuca pustulata scrub
32. Notelaea - Pomaderris - Beyeria forest
33. Rainforest fernland
34. Riparian scrub
35. Seabird rookery complex
36. Sphagnum peatland
37. Subalpine Diplarrena latifolia rushland
38. Subalpine Leptospermum nitidum woodland
39. Wetlands
SCHEDULE 4 - Savings and Transitional Provisions
Section 77
1. Interpretation
In this Schedule -
"commencement day" means the day on which the National Parks and
Reserves Management Act 2002 and this Act commence;
"repealed Act" means the National Parks and Wildlife Act 1970
and any subordinate legislation made and in force under that Act
immediately before the commencement day.
2. Reserved land
An area of land that immediately before the commencement day was
reserved land, within the meaning of the repealed Act, in a class
referred to in section 15 of the repealed Act is taken to be reserved
land in the corresponding class under this Act with the same name as
it had under the repealed Act.
3. Licences, permits and other authorities
A licence, permit or other authority issued and in force, immediately
before the commencement day, under a provision of the repealed Act in
respect of which there is a corresponding provision in this Act is
taken to have been issued and to be in force under that corresponding
provision of this Act.
4. Conservation covenants
(1) A conservation covenant, within the meaning of the
repealed Act, that was made and in force, immediately before the
commencement day, under the repealed Act is taken to have been made
and to be in force as a conservation covenant under this Act.
(2) Subject to subclause (4), a reference in a conservation
covenant referred to in subclause (1) to the Director is taken to be a
reference to the Secretary.
(3) At any time on or after the commencement day and with the
consent of the Director, the Secretary may determine, by notice
provided to the owner of the land subject to the conservation covenant
affected by the determination, the Director and the Recorder, that a
reference in a conservation covenant referred to in subclause (1) to
the Director that is taken, by reason of subclause (2), to be a
reference to the Secretary is to be taken to be a reference to the
Director.
(4) On and after the day on which the notice of a
determination under subclause (3) is provided to the last of the
persons required to be provided with that notice under that
subsection, the reference to which the determination relates is taken
to be a reference to the Director.
5. Management agreements and other documents related to conservation
covenants
(1) A management agreement, within the meaning of the repealed
Act, that was made and in force immediately before the commencement
day under the repealed Act is taken to have been made and to be in
force as a management agreement under this Act.
(2) A document in force immediately before the commencement
day relating to a conservation covenant referred to in clause 4(1), or
management agreement, referred to in subclause (1), is taken to have
been made and to be in force under this Act.
(3) Subject to subclause (5), a reference in a management
agreement or document referred to in subclause (1) or (2) to the
Director is taken to be a reference to the Secretary.
(4) At any time on or after the commencement day and with the
consent of the Director, the Secretary may determine, by notice
provided to the owner of the land subject to the conservation covenant
affected by the determination and the Director, that a reference in a
management agreement or document referred to in subclause (1) or (2)
to the Director that is taken, by reason of subclause (3), to be a
reference to the Secretary is to be taken to be a reference to the
Director.
(5) On and after the day on which the notice of a
determination under subclause (4) is provided to the last of the
persons required to be provided with that notice under that
subsection, the reference to which the determination relates is taken
to be a reference to the Director.
6. Rangers
The appointment of a ranger under the repealed Act continues and is
taken to be an appointment as a ranger under this Act.
7. Wildlife regulations and other subordinate legislation
The Wildlife Regulations 1999 , and any orders in force immediately
before the commencement day under section 35A of the repealed Act, are
taken to have been made under this Act.
Table Of Amendments
Act Number and year Date of commencement
Nature Conservation Act 2002 No. 63 of 2002 31.12.2002
Police Service (Consequential Amendments) Act 2003 No. 76 of 2003
1.1.2004
Forest Practices Administrative Reform (Transitional and
Consequential) Act 2004 No. 56 of 2004 1.7.2005
Legislation Publication Act 1996 No. 17 of 1996 6.2.2006
Nature Conservation Amendment (Threatened Native Vegetation
Communities) Act 2006 No. 36 of 2006 30.4.2007
Monetary Penalties Enforcement (Transitional Arrangements and
Consequential Amendments) Act 2007 No. 72 of 2007 28.4.2008
Resource Planning and Development Commission Legislation
(Miscellaneous Amendments) Act 2009 No. 28 of 2009 1.9.2009
CURRENT VIEW: 1 Sep 2009