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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Native Vegetation (Miscellaneous) Amendment
Bill 2011
A BILL FOR
An Act to amend the Native
Vegetation Act 1991.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Native Vegetation
Act 1991
4Amendment of
section 3—Interpretation
5Amendment of
section 4—Application of Act
6Amendment of section
7—Establishment of the Council
7Amendment of section
8—Membership of the Council
8Amendment of section
9—Conditions of office
9Amendment of section 14—Functions of
the Council
10Amendment of section 21—The
Fund
11Amendment of section 25—Guidelines
for the application of assistance and the management of native
vegetation
12Amendment of section 26—Offence of
clearing native vegetation contrary to this Part
13Amendment of
section 28—Application for consent
14Insertion of section
28A
28ACredit for environmental
benefits
15Repeal of section 31
16Amendment of
section 31E—Enforcement notices
17Insertion of section
31EA
31EASubstituted
direction where compliance with enforcement notice not reasonably
practicable
18Substitution of section
33
33Commencement of
proceedings
19Amendment of section 33A—Appointment of
authorised officers
20Amendment of section 33B—Powers of
authorised officers
21Amendment of section 33D—Provisions
relating to seizure
22Substitution of section
33J
33JConstitution and
criminal jurisdiction of ERD Court
33KApplications during criminal
proceedings
23Amendment of section
34—Evidentiary
24Amendment of section 35—Proceedings for
an offence
25Amendment of section
41—Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Native Vegetation (Miscellaneous) Amendment
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Native Vegetation
Act 1991
4—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of breach—delete
"and breached has a corresponding meaning" and
substitute:
and includes a contravention of, or a failure to comply with, a term of a
heritage agreement
(2) Section 3(1), definition of native vegetation,
(b)—delete "unless the person was acting" and substitute:
unless the plant was sown or planted
(3) Section 3(1), definition of native vegetation,
(b)—after subparagraph (ii) insert:
(iia) in circumstances involving the use of money paid into the Fund for
the purpose of achieving a significant environmental benefit; or
5—Amendment
of section 4—Application of Act
(1) Section 4(2)—delete "subsection (2a)" and
substitute:
subsections (2a) and (2ab)
(2) Section 4—after subsection (2a) insert:
(2ab) This Act applies in that part of the City of Mitcham consisting of
the following suburbs:
(a) Belair;
(b) Bellevue Heights;
(c) Blackwood;
(d) Coromandel Valley;
(e) Craigburn Farm;
(f) Eden Hills;
(g) Glenalta;
(h) Hawthorndene.
6—Amendment
of section 7—Establishment of the Council
Section 7—after subsection (2) insert:
(3) The Council is subject to the general direction and control of the
Minister (but the Minister cannot give any direction with respect to any advice
or recommendation that the Council might give or make, or in relation to a
particular application that is being assessed by, or that is to be, or has been,
assessed by, the Council).
7—Amendment
of section 8—Membership of the Council
Section 8(1)(f)—delete paragraph (f) and substitute:
(f) 1 must be a person with extensive knowledge of, and experience in,
planning or development nominated by the Minister; and
8—Amendment
of section 9—Conditions of office
Section 9(2)—after paragraph (d) insert:
or
(e) for breach of, or non-compliance with, a condition of
appointment.
9—Amendment
of section 14—Functions of the Council
Section 14(2)—delete subsection (2) and substitute:
(2) The Council, in performing a function, or exercising a power, under
this Act—
(a) must take into account, and seek to further, the objects of this Act;
and
(b) must take into account, and seek to further, the principles of
clearance of native vegetation (insofar as they are relevant in the particular
circumstances); and
(c) must take into account the provisions of the State NRM plan, and any
other relevant NRM plan, under the Natural
Resources Management Act 2004,
and, in any event, must not act in a manner that is seriously at variance
with the principles of clearance of native vegetation.
10—Amendment
of section 21—The Fund
(1) Section 21(3)—after paragraph (cb) insert:
(cc) amounts paid into the Fund in accordance with an order under
section 31EA; and
(cd) amounts paid into the Fund in accordance with any provision made by
the regulations; and
(2) Section 21(6)—delete subsection (6) and substitute:
(6) Money paid into
the Fund under subsection (3)(c), (ca), (cb), (cc) or (cd) must, as
far as practicable, be used—
(a) to preserve and maintain native vegetation on land that is within the
same region of the State as the relevant land (including preserving and
maintaining native vegetation referred to in
paragraph (b));
or
(b) to establish or
regenerate native vegetation on land that is within the same region of the State
as the relevant land and that has been selected by the Council for that purpose
after having regard to the Regional Biodiversity Plan or Plans (if any) approved
by the Minister that apply within that region.
(6a) However, the
Council may use the money referred to in
subsection (6) to
establish, regenerate or maintain native vegetation in a region of the State
other than the region where the relevant land is located if—
(a) the Council is satisfied that the environmental benefit to be achieved
in the other region will outweigh the value of achieving a significant
environmental benefit within the region where the relevant land is located;
and
(b) the native vegetation includes or supports—
(i) plants of a rare, vulnerable or endangered species; or
(ii) plants that provide habitat for rare, vulnerable or endangered
species of native animals; or
(iii) the whole, or a part, of a plant community that is rare, vulnerable
or endangered; or
(iv) a significant remnant of vegetation in an area which has been
extensively cleared; and
(c) the establishment, regeneration or maintenance of the native
vegetation is carried out in accordance with guidelines adopted under
section 25 that apply to such establishment, regeneration or
maintenance.
(6b) For the purposes of making an assessment under this section as to
whether 2 or more places are within the same region of the State, the Council
may take into account such matters as it thinks fit.
(6c) To avoid doubt, nothing in this section prevents the Council from
making a payment from the Fund to the person or body who paid the money into the
Fund so that the person or body can establish, regenerate or maintain native
vegetation in accordance with this Act.
(3) Section 21(7)—delete "subsection (6)" and
substitute:
this section
(4) Section 21(7), definition of relevant land,
(b)—delete "or (cb)" and substitute:
, (cb) or (cc)
(5) Section 21(7), definition of relevant land—after
paragraph (b) insert:
(c) in a case where subsection (3)(cd) applies—land on which
the native vegetation that is relevant to the operation of the particular
regulation was grown or was situated.
11—Amendment
of section 25—Guidelines for the application of assistance and the
management of native vegetation
(1) Section 25(1)—after paragraph (b) insert:
(ba) the establishment, regeneration or maintenance of native vegetation
under section 21(6a); and
(2) Section 25(1)—after paragraph (c) insert:
and
(d) any other matter required by the regulations.
(3) Section 25(2)—after paragraph (a) insert:
and
(ab) submit the guidelines to the Minister for comment; and
12—Amendment
of section 26—Offence of clearing native vegetation contrary to this
Part
(1) Section 26(1), penalty provision—delete "$500" and
substitute:
$750
(2) Section 26(2), penalty provision—delete "$500" and
substitute:
$750
(3) Section 26(3), definition of the prescribed
period—delete "21 days" wherever occurring and substitute in each
case:
6 months
13—Amendment
of section 28—Application for consent
(1) Section 28(3)(b)(ii)(A)—delete "the planting and
maintenance of native vegetation on the land after clearance or on adjacent
land" and substitute:
subsequent establishment, regeneration or maintenance of native vegetation
(whether on the land after the proposed clearance or on other land)
(2) Section 28(3)(b)(ii)—after subsubparagraph (A)
insert:
(AB) information that establishes that—
• the applicant has been credited under section 28A with having
achieved an environmental benefit of a particular value; and
• the environmental benefit the subject of the credit amounts, after
allowing for the loss of the vegetation to be cleared, to a significant
environmental benefit; or
Note—
Section 28A(1)(d) allows credits for environmental benefits to be taken
into account and applied in relation to future applications for consent to clear
native vegetation.
(3) Section 28(3)(b)(ii)(B)—after "subsubparagraph (A)"
insert:
or (AB)
After section 28 insert:
28A—Credit for environmental
benefits
(a) a person—
(i) has achieved an environmental benefit (not being a benefit required in
relation to a consent to clear native vegetation or under any other requirement
under this Act); or
(ii) has, in accordance with a consent to clear native vegetation,
achieved an environmental benefit that exceeds the value of the minimum benefit
needed to offset the loss of the cleared vegetation; and
(b) the Council is satisfied that the benefit or excess benefit (as the
case requires) is of a significant value,
the Council may—
(c) for the purposes
of section 28(3)(b)(ii)(AB), credit the person with having achieved an
environmental benefit of a value (whether monetary or otherwise) determined by
the Council; and
(d) in determining a subsequent application by the person for consent
under section 28, take into account and apply the value of the credit
(adjusted to reflect the value, in the Council's opinion, of the native
vegetation the subject of the credit at the time the application is made) to the
amount of environmental benefit the person must achieve, or the amount of
compensation proposed to be paid under section 28(4), in order that the
consent be granted in the circumstances.
(2) In determining the value of an environmental benefit under
subsection (1)(c),
the Council must have regard to the approximate difference between the value of
the environmental benefit achieved by the person and the value of the
environmental benefit that would, in the Council's opinion, have been the
minimum requirement for consent under section 28 to have been granted in
the circumstances.
Section 31—delete the section
16—Amendment
of section 31E—Enforcement notices
(1) Section 31E(3)—delete subsection (3) and
substitute:
(3) A notice under subsection (2) must identify the authorised
officer issuing the direction.
(2) Section 31E(4)—delete "If" and substitute:
Subject to section 31EA, if
(3) Section 31E(9)—delete "12 months" and substitute:
2 years
After section 31E insert:
31EA—Substituted direction where compliance with
enforcement notice not reasonably practicable
(1) If—
(a) an authorised officer gives a direction to a person under
section 31E(1)(b); and
(b) it is not reasonably practicable for the person to comply with the
direction,
the person may apply to the Council for a substituted direction under this
section.
(2) An application for an order under this section must be made in a
manner and form determined by the Council.
(3) The Council may, if satisfied that compliance with the direction under
section 31E(1)(b) is not reasonably practicable, revoke the direction and
instead direct the person—
(a) to take such action as may appear appropriate to the Council (whether
on the person's land or otherwise), taking into account the nature and extent of
the alleged breach forming the basis for the original direction; or
(b) to pay into the
Fund an amount, determined by the Council to be appropriate in the
circumstances, on account of any benefit that the person has gained, or can
reasonably be expected to gain, by allegedly committing the breach; or
(c) to refrain from an act or course of action, or to undertake an act or
course of action, to ensure that the person does not gain an ongoing benefit
from the alleged breach.
(4) A direction under this section—
(a) must specify the period within which the direction must be complied
with;
(b) must comply with any other requirement set out in the
regulations.
(5) Without limiting this section, section 31E (other than
subsection (9)) applies to a direction under this section as if it were a
direction under section 31E(1)(b).
Section 33—delete the section and substitute:
33—Commencement of proceedings
Proceedings under this Division must be commenced—
(a) if the proceedings relate to an offence under this Act which the
respondent has expiated or of which the respondent has been convicted or found
guilty—within 6 months after the date on which the respondent so expiated,
or was convicted or found guilty of, the offence (as the case requires);
or
(b) in any other case—within 5 years after the date of the
alleged contravention of, or failure to comply with, a provision of this
Act.
19—Amendment
of section 33A—Appointment of authorised officers
(1) Section 33A(2)(b)—delete paragraph (b)
(2) Section 33A(3)(b), (c) and (d)—delete paragraphs (b), (c)
and (d)
20—Amendment
of section 33B—Powers of authorised officers
Section 33B(4), (5) and (6)—delete subsections (4), (5)
and (6)
21—Amendment
of section 33D—Provisions relating to seizure
Section 33D(2)—delete "six" and substitute:
12
22—Substitution
of section 33J
Delete section 33J and substitute:
33J—Constitution and criminal jurisdiction of ERD
Court
(1) Subject to this Act, the following provisions apply in respect of the
constitution of the ERD Court when exercising jurisdiction under this
Act:
(a) the Court may be constituted in a manner provided by the Environment,
Resources and Development Court Act 1993 or may, if the Senior
Judge of the Court so determines, be constituted of—
(i) in relation to proceedings for an offence against this Act—a
magistrate and 1 commissioner; or
(ii) in any case—a Judge and 1 commissioner;
(b) the provisions of the Environment,
Resources and Development Court Act 1993 apply in relation to the
Court constituted of a Judge and 1 commissioner, or a magistrate and
1 commissioner, in the same way as in relation to a full bench of the
Court;
(c) the Court may not be constituted of or include a commissioner
unless—
(i) in a case where only 1 commissioner is to sit (whether alone or
with another member or members of the Court)—the commissioner;
or
(ii) in any other case—at least 1 commissioner,
is a commissioner who has been specifically designated by the Governor as a
person who has wide practical knowledge of, and experience in, the preservation
and management of native vegetation.
(2) Offences constituted by this Act lie within the criminal jurisdiction
of the ERD Court.
33K—Applications during criminal
proceedings
(1) If, during the course of criminal proceedings before a court in
respect of an offence against this Act, the prosecutor applies for an order
under this Act relating to the offence, the court must deal with the application
during the course of the criminal proceedings unless satisfied by the defendant
that to do so would not be appropriate in the circumstances.
(2) If an application for an order under this Act is made to a court
before which a person was convicted of an offence against this
Act—
(a) the application may be dealt with by the court; and
(b) any power in relation to the relevant order may be exercised by the
court,
whether or not the court is constituted in the same way as when the person
was convicted of the offence.
23—Amendment
of section 34—Evidentiary
Section 34—after subsection (4) insert:
(5) In enforcement proceedings under Part 5 Division 2 or in
proceedings for an offence against this Act, a document produced by the
prosecution or plaintiff (as the case requires) and purporting to certify that a
remotely sensed image specified in the document—
(a) was captured by a specified device and is accurate to the extent
indicated in the document; and
(b) was captured at a specified time on a specified date; and
(c) is an image of a specified place,
constitutes, in the absence of proof to the contrary, proof of the facts so
certified.
(6) For the purposes of this section, a reference to an electronic, sonic,
optical, mechanical or other device includes a reference to any software used
by, or in relation to, such a device.
(7) In this section—
image includes—
(a) a copy of an image; and
(b) data from which an image can be produced;
remotely sensed image means—
(a) an image captured by a device (whether a camera or otherwise) mounted
on or in a satellite or aircraft; and
(b) any other image declared by the regulations to be included in the
ambit of this definition.
24—Amendment
of section 35—Proceedings for an offence
(1) Section 35(1)—delete subsection (1) and
substitute:
(1) Proceedings for an offence against this Act must be commenced within
5 years after the date on which the offence is alleged to have been
committed.
(2) Section 35(3)—delete subsection (3)
25—Amendment
of section 41—Regulations
(1) Section 41(2)(e)—delete "$500" and substitute:
$750
(2) Section 41(2)—after paragraph (e) insert:
(f) provide for amounts of money (whether or not specified by the
regulations) to be paid into the Fund for the purposes of achieving a
significant environmental benefit;
(g) create offences punishable by a fine not exceeding
$10 000;
(h) fix expiation fees for alleged offences against the
regulations;
(i) make provisions facilitating proof of the commission of offences
against the regulations.