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Crown Land Acts Amendment (Lease
and Licence Terms) Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to--
· provide a licensing scheme for tour operators and
activity providers on Crown land administered under the
Crown Land (Reserves) Act 1978, Forests Act 1958,
Land Act 1958, National Parks Act 1975, and the
Wildlife Act 1975;
· increase the maximum lease term under the Crown
Land (Reserves) Act 1978 and Forests Act 1958 from
21 years to 65 years;
· increase the maximum licence term under the Crown
Land (Reserves) Act 1978 from 3 years to 10 years;
· provide for licence terms greater than 10 years under the
Crown Land (Reserves) Act 1978 and Land Act 1958
in circumstances where the licensee leases adjacent
land; and
· amend the Crown Land (Reserves) Act 1978, Forests
Act 1958, Land Act 1958, National Parks Act 1975,
Wildlife Act 1975, Coastal Management Act 1995,
Conservation, Forests and Lands Act 1987, the Land
(Revocations and Other Matters) Act 1991 and the
Fraser National Park Act 1957 to enhance the
operation of those Acts generally.
561279 1 BILL LA INTRODUCTION 5/5/2009
Clause 2 provides that the Act, except for provisions providing for a new
licensing scheme for tour operators and activity providers, will
commence on the day after the day on which it receives the
Royal Assent. The provisions relating to the licensing scheme
for tour operators and activity providers on Crown land will
commence on a day to be proclaimed or on 1 July 2011 if not
proclaimed earlier. The reason for the later commencement of
these provisions is to allow for licence fees and conditions to be
prescribed by regulations.
PART 2--AMENDMENT OF THE CROWN LAND
(RESERVES) ACT 1978
Clause 3 inserts new definitions in section 3 of the Crown Land
(Reserves) Act 1978.
Subclause (1) defines responsible Minister as the Minister
administering the Crown Land (Reserves) Act 1978 or another
Minister if powers have been conferred on that Minister under
section 17AB. The need for this definition is a consequence of
the amendment in clause 8, which allows the Governor in
Council by Order on the joint recommendation of the Minister
responsible for the Crown Land (Reserves) Act 1978 and a
Minister responsible for administering the Health Services Act
1988 (Health Minister) to confer certain leasing and licensing
powers to the Health Minister.
Subclause (2) defines land manager for the purposes of new
Part 3A as the trustees or a committee of management or, where
there are no trustees or committee of management, the Secretary
of the Department of Sustainability and Environment.
Subclause (2) also defines tour operator licence as a licence
granted under new section 21B.
Clause 4 amends section 14B(3) of the Crown Land (Reserves) Act 1978
to provide for the Minister to appoint the Chair of an
incorporated committee instead of the Governor in Council, for
consistency with other provisions relating to the membership of
committees of management.
Clause 5 removes the requirement that buildings and structures erected
under a lease granted by an incorporated committee of
management under section 14D(1) of the Crown Land
(Reserves) Act 1978 must become the property of the
incorporated committee of management. This will allow the
parties to the lease to negotiate ownership of those assets in
certain circumstances.
2
Clause 6 amends section 15 of the Crown Land (Reserves) Act 1978,
which specifies the general powers of a committee of
management. This is a consequence of new section 17CC, which
provides for the Minister to transfer the management of a lease to
a committee of management where the Minister has granted a
long term lease of up to 65 years in respect of land managed by
the committee of management.
Clause 7 removes the requirement that buildings and structures erected
under a tenancy agreement granted by a committee of
management under section 17 of the Crown Land (Reserves)
Act 1978 become the property of the committee of management.
This will allow the parties to the lease to negotiate ownership of
those assets in certain circumstances.
Clause 8 inserts new section 17AB into the Crown Land (Reserves) Act
1978, which allows the Governor in Council by Order on the
joint recommendation of the Minister responsible for the Crown
Land (Reserves) Act 1978 and the Health Minister to confer
leasing and licensing powers under sections 17B and 17D of the
Crown Land (Reserves) Act 1978 to the Health Minister in
respect of a specified area of land. New section 17AB(5)
provides that an Order in Council must specify the land to which
the Order applies, the leasing and licensing powers to be
conferred on the Health Minister and the period for which the
Order will be in force. The Minister responsible for
administering the Crown Land (Reserves) Act 1978 will
continue to have all other powers that are not specifically
conferred on the Health Minister. A committee of management
must notify the Department of Sustainability and Environment if
it has entered into a lease or licence with the approval of the
Health Minister. New section 17AB(9) provides that the
Minister responsible for the Act cannot exercise a power that has
been conferred onto the Health Minister by Order, while that
Order remains in force.
Clause 9 increases the licence term from three years to ten years for
licences granted under section 17B(1) of the Crown Land
(Reserves) Act 1978. This clause also makes consequential
amendments as a result of clause 8 by amending references to the
Minister to include reference to the responsible Minister as
defined in clause 3.
Clause 10 inserts new section 17BAA into the Crown Land (Reserves)
Act 1978 which allows for trustees or a committee of
management to grant a licence for a term of more than ten years
where necessary to ensure the proposed licensee has access to
adjacent land that is leased by the proposed licensee and
3
managed by the trustees or committee of management.
New section 17BAA(3) provides that if there are no trustees or
committee of management, the Secretary, or a person authorised
by the Secretary, with the approval of the Minister may grant the
licence. A licence cannot be granted for more than 21 years, or
the remaining term of the lease, whichever is the lesser.
A licence can only be granted in these circumstances if the
purpose of the lease is not detrimental to the purpose for which
the land is reserved.
Clause 11 inserts new sections 17CA, 17CB and 17CC into the Crown
Land (Reserves) Act 1978. These sections allow the Minister to
grant leases for more than 21 years (the current maximum) and
up to 65 years where satisfied that the proposed use,
development, improvement or works that are specified in the
lease are of a substantial nature, of a value that justifies the
longer term lease and it is in the public interest to grant the lease.
A lease must not be granted if the purpose for which it is granted
is detrimental to the purpose for which the land is reserved.
A lease must not be granted in respect of land reserved under
section 4(1)(l), (m), (n) or (o) of the Crown Land (Reserves)
Act 1978 or specified in Part 1 or Part 3 of the Fifth Schedule to
that Act. This land includes land of particular ecological or
conservational significance such as nature conservation reserves
and wildlife habitat.
A lease must not be granted in respect of land reserved for a
purpose specified in section 4(1)(w) or (ze) of the Crown Land
(Reserves) Act 1978 or land deemed to be reserved for the
protection of the coastline unless the Minister has, by
determination published in the Government Gazette, given notice
of intention to lease the land, has laid the determination before
each House of Parliament and the determination is not disallowed
by Parliament. This land includes parks, gardens, ornamental
plantations and coastal land.
Subsections (6) and (7) of new section 17CA provide for the
Minister, for the purposes of leasing reserved Crown land, to
enter into an agreement to lease that land. An agreement to lease
must be consistent with the Act and on terms that would be
permitted under any lease granted under new section 17CA.
New section 17CA(7) provides that where the agreement to lease
gives the right to occupy the land for a period of time, that
period, when added to the term of the lease entered into must not
exceed the maximum lease term of 65 years.
4
New section 17CB provides for the disallowance, in whole or in
part, of a determination laid before Parliament under section
17CA(4). New section 17CB(1)(a) provides that notice of a
resolution to disallow a determination must be given in a House
of Parliament within 5 sitting days after the determination is laid
before the House. New section 17CB(1)(b) provides that a
determination is disallowed if the resolution is passed by the
House of Parliament within 10 sitting days after giving notice of
the resolution. New section 17CB(4) provides that the
prorogation or dissolution of Parliament does not affect the
power to pass a resolution or the number of sitting days.
New section 17CC provides for the Minister, when granting a
lease under new section 17CA(1) to transfer management of the
lease to the trustees or committee of management. New section
17CC(1) requires the Minister to consult with trustees or a
committee of management before leasing land managed by
trustees or a committee of management under section 17CA(1).
Section 17CA (3) provides that the power to manage a lease does
include a power to vary, terminate or amend the lease.
If permitted by the lease, the trustees or committee of
management may collect revenue from the lease and expend it
within the reserve for which it is responsible.
Clause 12 substitutes section 17D(1) of the Crown Land (Reserves) Act
1978. New subsections (1B) and (1C) provide for the trustees or
committee of management, or the responsible Minister if there
are no trustees or committee of management, to enter into an
agreement to lease land. An agreement to lease must be
consistent with the Act and on terms that would be permitted
under any lease granted under new section 17D(2).
New subsection (1C) provides that where the agreement to lease
gives the right to occupy the land for a period of time, that
period, when added to the term of the lease entered into must not
exceed the maximum lease term of 21 years.
Subclauses (3) to (9) make consequential amendments as a result
of restructuring the section and the amendment in clause 8, which
allows the Governor in Council by Order on the joint
recommendation of the Minister responsible for the Crown Land
(Reserves) Act 1978 and the Health Minister to confer certain
leasing and licensing powers to the Health Minister.
Clause 13 amends section 17DA(3) of the Crown Land (Reserves) Act
1978 to update references to the Subordinate Legislation Act
1962 so that they instead refer to the Subordinate Legislation
Act 1994, which replaced that Act.
5
Clause 14 inserts new section 17G into the Crown Land (Reserves) Act
1978 to provide for a lease to require a lessee to restore a site
after the expiry of a lease.
Clause 15 inserts new Part 3A into the Crown Land (Reserves) Act 1978,
which establishes a new licensing scheme for tour operators and
activity providers on reserved Crown land.
New section 21A makes it an offence to conduct an organised
tour or recreational activity for profit on reserved Crown land
unless that person holds a tour operator licence. New section
21A(2) provides that the offence does not apply to a person who
holds another type of licence or permit under the Act or
regulations, or a person who leases the land on which the activity
will take place. New section 21A(3) provides for the Governor
in Council to exempt classes of person from the requirement to
obtain a tour operator licence by Order in Council. The Order
must be on the recommendation of the Minister and published in
the Government Gazette.
New section 21B provides for the land manager, with the
approval in writing of the Minister, to grant a tour operator
licence for a period of no more than 10 years.
New section 21C provides for a person to apply for a tour
operator licence. New section 21C(2) specifies that an
application must be accompanied by the fee payable for the
first year of the licence as determined in accordance with the
regulations (unless the regulations otherwise provide).
New section 21C(3) provides for the fee to be refunded in the
licence is not granted.
New section 21D provides for the licence holder to pay an annual
licence fee determined in accordance with the regulations.
The fee is payable at the time specified in the regulations.
New section 21E provides for licence conditions to be
determined by the land manager or prescribed in regulations.
New section 21F makes it an offence to breach a condition of a
tour operator licence. The penalty for a natural person is
20 penalty units. The penalty for a body corporate is 100 penalty
units.
New section 21G provides for the holder of a tour operator
licence to apply to the land manager for a variation of the licence
or a condition of the licence. The land manager may vary the
licence, either on application or on his or her own motion if of
the opinion that a variation is required. New sections 21G(3)
and (5) specify that the variation has effect on the land manager
giving written notice to the licence holder.
6
New section 21H provides for the land manager to suspend a tour
operator licence by notice in writing given to the licence holder.
The land manager may only suspend a licence if satisfied that
there are reasonable grounds to do so. New section 21H(2)
provides that a suspension has effect from the time specified in
the notice (which cannot be earlier than the day after the day on
which the notice is given). The suspension has effect for the
period specified in the notice, which cannot be more than
90 days. New section 21H(3) provides that a notice of
suspension must state that the licence holder may make
submissions regarding the suspension and specify when any
submissions must be made.
New section 21I provides for a licence holder whose licence has
been suspended to make submissions in respect of that
suspension within the period specified in the notice of suspension
given under new section 21H. New sections 21H(2) and (3)
provide that the land manager must consider any submissions
received and review the decision to suspend the licence. Section
21H(4) requires the land manager to notify the licence holder of
the outcome of the review.
New section 21J provides for a land manager to cancel a tour
operator licence if satisfied on reasonable grounds that the
licence holder has been found guilty of an offence against the
Act or regulations or has breached a condition of the licence.
New section 21J(2) provides that before cancelling a licence the
land manager must notify the licence holder of the proposed
cancellation and allow the licence holder the opportunity to make
oral or written submissions within a period specified in the
notice. New section 21J(4) provides that the land manager must
have regard to any submissions before deciding whether or not to
cancel the licence must notify the licence holder of that decision.
Clause 16 inserts new section 31 into the Crown Land (Reserves) Act
1978 which provides for the Governor in Council to make
regulations prescribing licence fees and licence conditions for the
purposes of tour operator licences issued under new Part 3A.
Clause 17 inserts new Division 7 in Part 6 of the Crown Land (Reserves)
Act 1978, which provides for transitional arrangements to the
new tour operator licensing scheme. It ensures that a person who
has applied for a licence within four months of the
commencement of clause 15, which commences on a day to be
proclaimed or by 1 July 2011 if not proclaimed before then, will
not be guilty of an offence until the application is finally
determined.
7
PART 3--AMENDMENT OF THE FORESTS ACT 1958
Clause 18 inserts a definition of tour operator licence into section 3(1) of
the Forests Act 1958 which means a licence granted under
section 57F.
Clause 19 substitutes section 51 of the Forests Act 1958 to provide for the
Minister instead of the Governor in Council, to grant leases.
This will modernise the provision and provide consistency with
licensing provisions in other legislation governing the
administration of Crown land.
The substituted section also allows the Minister to lease land for
more than the current maximum of 21 years and up to 65 years
where satisfied that the proposed use, development, improvement
or works that are specified in the lease are of a substantial nature,
of a value that justifies the longer term lease and it is in the
public interest to grant the lease.
New sections 51(4) and (5) provide for the Minister to enter into
an agreement to lease land. An agreement to lease must be
consistent with the Act and on terms that would be permitted
under any lease granted under section 51. Section 51(5) provides
that where the agreement to lease gives the right to occupy the
land for a period of time, that period, when added to the term of
the lease entered into must not exceed the maximum lease term
of 65 years.
Clause 20 substitutes section 52(1) of the Forests Act 1958 to provide for
the Minister, instead of the Governor in Council, to grant licences
and permits. This will modernise the provision and provide
consistency with licensing provisions in other legislation
governing the administration of Crown land.
Clause 21 inserts new provisions in the Forests Act 1958 which establishes
a new licensing scheme for tour operators and activity providers.
New section 57E makes it an offence to conduct an organised
tour or recreational activity for profit on reserved Crown land
unless that person holds a tour operator licence. New section
57E(2) provides that the offence does not apply to a person
who holds another type of licence or permit under the Act or
regulations, or a person who leases the land on which the activity
will take place. New section 57E(3) provides for the Governor in
Council to exempt classes of person from the requirement to
obtain a tour operator licence by Order in Council. The Order
must be on the recommendation of the Minister and published in
the Government Gazette.
8
New section 57F provides for the Secretary to grant a tour
operator licence for a period of no more than 10 years.
New section 57G provides for a person to apply for a tour
operator licence. New section 57G(2) specifies that an
application must be accompanied by the fee payable for the
first year of the licence as determined in accordance with the
regulations (unless the regulations otherwise provide).
New section 57G(3) provides for the fee to be refunded in the
licence is not granted.
New section 57H provides for the licence holder to pay an annual
licence fee determined in accordance with the regulations.
The fee is payable at the time specified in the regulations.
New section 57I provides for licence conditions to be determined
by the Secretary or prescribed in regulations.
New section 57J makes it an offence to breach a condition of a
tour operator licence. The penalty for a natural person is
20 penalty units. The penalty for a body corporate is 100 penalty
units.
New section 57K provides for the holder of a tour operator
licence to apply to the Secretary for a variation of the licence or a
condition of the licence. The Secretary may vary the licence,
either on application or on his or her own motion if of the opinion
that a variation is required. New sections 57K(3) and (5) specify
that the variation has effect on the land manager giving written
notice to the licence holder.
New section 57L provides for the Secretary to suspend a tour
operator licence by notice in writing given to the licence holder.
The Secretary may only suspend a licence if satisfied that there
are reasonable grounds to do so. New section 57L(2) provides
that a suspension has effect from the time specified in the notice
(which cannot be earlier than the day after the day on which the
notice is given). The suspension has effect for the period
specified in the notice, which cannot be more than 90 days.
New section 57L(3) provides that a notice of suspension must
state that the licence holder may make submissions regarding the
suspension and specify when any submissions must be made.
New section 57M provides for a licence holder whose licence
has been suspended to make submissions in respect of that
suspension within the period specified in the notice of suspension
given under new section 21H. New sections 57M(2) and (3)
provide that the Secretary must consider any submissions
received and review the decision to suspend the licence.
9
New section 57M(4) requires the Secretary to notify the licence
holder of the outcome of the review.
New section 57N provides for a Secretary to cancel a tour
operator licence if satisfied on reasonable grounds that the
licence holder has been found guilty of an offence against the
Act or regulations or has breached a condition of the licence.
New section 57N(2) provides that before cancelling a licence
the Secretary must notify the licence holder of the proposed
cancellation and allow the licence holder the opportunity to make
oral or written submissions within a period specified in the
notice. New section 57N(4) provides that the Secretary must
have regard to any submissions before deciding whether or not to
cancel the licence must notify the licence holder of that decision.
Clause 22 makes a consequential amendment to the offence in section 96(h)
of the Forests Act 1958 in order to exclude its application to the
new tour operator licences. The new tour operator licence
scheme provides for a specific offence for operating an organised
tour or recreational activity in a reserved forest without a licence.
Clause 23 inserts new section 100A in the Forests Act 1958 which provides
for the Governor in Council to make regulations prescribing
licence fees and licence conditions for the purposes of tour
operator licences issued under new sections 57E to 57N.
Clause 24 inserts new section 101A in the Forests Act 1958 which provides
for transitional arrangements to the new tour operator licensing
scheme. It ensures that a person who has applied for a licence
within four months of the commencement of clause 21, which
commences on a day to be proclaimed or by 1 July 2011 if not
proclaimed before then, will not be guilty of an offence until the
application is finally determined.
PART 4--AMENDMENT OF THE LAND ACT 1958
Clause 25 inserts a definition of tour operator licence into section 2A of
the Land Act 1958 which means a licence granted under
section 140I.
Clause 26 amends section 12 of the Land Act 1958 to clarify that the
Minister, as well as the Governor in Council, may convey land
under Part 1 of the Land Act 1958. This is consistent with
specific leasing and licensing provisions in that part of the Act.
Clause 27 inserts new subsections in section 134 of the Land Act 1958 to
provide for the Minister to enter into an agreement to lease land.
An agreement to lease must be consistent with the Act and on
terms that would be permitted under any lease granted under
10
section 134. New subsection (1B) provides that where the
agreement to lease gives the right to occupy the land for a period
of time, that period, when added to the term of the lease entered
into must not exceed the maximum lease term under
subdivision 1.
Subclause (2) makes a minor consequential amendment to
section 134(2) of the Land Act 1958.
Clause 28 substitutes section 137AA(3) of the Land Act 1958 to clarify
that the power for the Minister to grant leases for a term more
than 50 years and up to 99 years, if satisfied that a building is of
a substantial nature and of a value which justifies the lease term,
includes structures and improvements as well as buildings.
Subclause (2) clarifies that the leasing provision in section
137AA(4) does not override more specific provisions in other
Acts.
Clause 29 amends section 140 of the Land Act 1958 to provide that despite
the current maximum licence term of 10 years for a licence
granted under section 138, a licence can be granted for longer
than 10 years if necessary to ensure the proposed licensee has
continued access to adjacent land which the proposed licensee
leases. New section 140(3) provides that the maximum licence
term for such a licence is 21 years, or the term of the lease of the
adjacent land, whichever is the lesser.
Clause 30 inserts new provisions into the Land Act 1958 which establish a
new licensing scheme for tour operators and activity providers on
Crown land.
New section 140H makes it an offence to conduct an organised
tour or recreational activity for profit on reserved Crown land
unless that person holds a tour operator licence. New section
140H(2) provides that the offence does not apply to a person
who holds another type of licence or permit under the Act or
regulations, or a person who leases the land on which the activity
will take place. New section 140H(3) provides for the Governor
in Council to exempt classes of person from the requirement to
obtain a tour operator licence by Order in Council. The Order
must be on the recommendation of the Minister and published in
the Government Gazette.
New section 140I provides for the Minister, or a person
authorised by the Minister, to grant a tour operator licence for a
period of no more than 10 years.
11
New section 140J provides for a person to apply for a tour
operator licence. New section 140J(2) specifies that an
application must be accompanied by the fee payable for the
first year of the licence as determined in accordance with the
regulations (unless the regulations otherwise provide).
New section 140J(3) provides for the fee to be refunded in the
licence is not granted.
New section 140K provides for the licence holder to pay an
annual licence fee determined in accordance with the regulations.
The fee is payable at the time specified in the regulations.
New section 140L provides for licence conditions to be
determined by the land manager or prescribed in regulations.
New section 140M makes it an offence to breach a condition of a
tour operator licence. The penalty for a natural person is
20 penalty units. The penalty for a body corporate is 100 penalty
units.
New section 140N provides for the holder of a tour operator
licence to apply to the Minister for a variation of the licence or a
condition of the licence. The Minister, or a person authorised by
the Minister, may vary the licence, either on application or on his
or her own motion if of the opinion that a variation is required.
New sections 140N(3) and (5) specify that the variation has
effect on the Minister, or a person authorised by the Minister,
giving written notice to the licence holder.
New section 140O provides for the Minister, or a person
authorised by the Minister, to suspend a tour operator licence
by notice in writing given to the licence holder. The Minister,
or a person authorised by the Minister, may only suspend a
licence if satisfied that there are reasonable grounds to do so.
New section 140O(2) provides that a suspension has effect from
the time specified in the notice (which cannot be earlier than the
day after the day on which the notice is given). The suspension
has effect for the period specified in the notice, which cannot be
more than 90 days. New section 140O(3) provides that a notice
of suspension must state that the licence holder may make
submissions regarding the suspension and specify when any
submissions must be made.
New section 140P provides for a licence holder whose licence
has been suspended to make submissions in respect of that
suspension within the period specified in the notice of suspension
given under new section 21H. New sections 140P(2) and (3)
provide that the Minister, or a person authorised by the Minister,
must consider any submissions received and review the decision
to suspend the licence. New section 140P(4) requires the
12
Minister, or a person authorised by the Minister, to notify the
licence holder of the outcome of the review.
New section 140Q provides for a Minister, or a person authorised
by the Minister, to cancel a tour operator licence if satisfied on
reasonable grounds that the licence holder has been found guilty
of an offence against the Act or regulations or has breached a
condition of the licence. New section 140Q(2) provides that
before cancelling a licence the Minister, or a person authorised
by the Minister, must notify the licence holder of the proposed
cancellation and allow the licence holder the opportunity to make
oral or written submissions within a period specified in the
notice. New section 140Q(4) provides that the Minister, or a
person authorised by the Minister, must have regard to any
submissions before deciding whether or not to cancel the licence
must notify the licence holder of that decision.
Clause 31 inserts new section 218 into the Land Act 1958 to allow for a
lease to require a lessee to restore a site after the expiry of a
lease.
Clause 32 amends section 407 of the Land Act 1958 to provide for an
unused road licence to be varied in order to avoid the need for the
licence to be cancelled and then re-issued with the required
change.
Clause 33 inserts new section 413A into the Land Act 1958 which provides
for the Governor in Council to make regulations prescribing
licence fees and licence conditions for the purposes of tour
operator licences issued under new sections 140H to 140Q.
Clause 34 inserts new Part XV in the Land Act 1958 which provides for
transitional provisions. New section 415 provides that any
relevant lease in force immediately before the commencement of
clause 28 is taken to be a lease that has always had effect as if
clause 28 was already in force.
New section 416 provides transitional arrangements to the new
tour operator licensing scheme. It ensures that a person who has
applied for a licence within four months of the commencement
of clause 30, which commences on a day to be proclaimed or by
1 July 2011 if not proclaimed before then, will not be guilty of an
offence until the application is finally determined.
13
PART 5--AMENDMENT OF THE NATIONAL PARKS
ACT 1975
Clause 35 inserts a definition of tour operator licence in section 3(1) of the
National Parks Act 1975 which means a licence granted under
section 27D.
Clause 36 amends section 21(1) of the National Parks Act 1975 to clarify
that a permit to conduct a trade or business in a park does not
include an organised tour or recreational activity conducted for
profit. New Division 3A provides for a separate licensing
scheme for these activities.
Clause 37 inserts new Division 3A in the National Parks Act 1975 which
establish a new licensing scheme for tour operators and activity
providers on land administered under the National Parks Act
1975.
New section 27C makes it an offence to conduct an organised
tour or recreational activity for profit on reserved Crown land
unless that person holds a tour operator licence. New section
27C(2) provides that the offence does not apply to a person who
holds another type of licence or permit under the Act or
regulations, or a person who leases the land on which the activity
will take place. New section 27C(3) provides for the Governor
in Council to exempt classes of person from the requirement to
obtain a tour operator licence by Order in Council. The Order
must be on the recommendation of the Minister and published in
the Government Gazette.
New section 27D provides for Secretary to grant a tour operator
licence for a period of no more than 10 years.
New section 27E provides for a person to apply for a tour
operator licence. New section 27E(2) specifies that an
application must be accompanied by the fee payable for the
first year of the licence as determined in accordance with the
regulations (unless the regulations otherwise provide).
New section 27E(3) provides for the fee to be refunded in the
licence is not granted.
New section 27F provides for the licence holder to pay an annual
licence fee determined in accordance with the regulations.
The fee is payable at the time specified in the regulations.
New section 27G provides for licence conditions to be
determined by the Secretary or prescribed in regulations.
14
New section 27H makes it an offence to breach a condition of a
tour operator licence. The penalty for a natural person is
20 penalty units. The penalty for a body corporate is 100 penalty
units.
New section 27I provides for the holder of a tour operator licence
to apply to the Secretary for a variation of the licence or a
condition of the licence. The Secretary may vary the licence,
either on application or on his or her own motion if of the opinion
that a variation is required. New sections 27I(3) and (5) specify
that the variation has effect on the land manager giving written
notice to the licence holder.
New section 27J provides for the Secretary to suspend a tour
operator licence by notice in writing given to the licence holder.
The Secretary may only suspend a licence if satisfied that there
are reasonable grounds to do so. New section 27J(2) provides
that a suspension has effect from the time specified in the notice
(which cannot be earlier than the day after the day on which the
notice is given). The suspension has effect for the period
specified in the notice, which cannot be more than 90 days.
New section 27J(3) provides that a notice of suspension must
state that the licence holder may make submissions regarding the
suspension and specify when any submissions must be made.
New section 27K provides for a licence holder whose licence
has been suspended to make submissions in respect of that
suspension within the period specified in the notice of suspension
given under new section 21H. New sections 27K(2) and (3)
provide that the Secretary must consider any submissions
received and review the decision to suspend the licence.
New section 27K(4) requires the Secretary to notify the licence
holder of the outcome of the review.
New section 27L provides for a Secretary to cancel a tour
operator licence if satisfied on reasonable grounds that the
licence holder has been found guilty of an offence against the
Act or regulations or has breached a condition of the licence.
New section 27L(2) provides that before cancelling a licence the
Secretary must notify the licence holder of the proposed
cancellation and allow the licence holder the opportunity to make
oral or written submissions within a period specified in the
notice. New section 27L(4) provides that the Secretary must
have regard to any submissions before deciding whether or not to
cancel the licence must notify the licence holder of that decision.
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Clause 38 inserts a new subsection to section 43 of the National Parks Act
1975 to clarify that a trade or business in a park does not include
an organised tour or recreational activity conducted for profit.
New Division 3A provides for a separate licensing scheme for
these activities.
Clause 39 inserts new section 48AA in the National Parks Act 1975 which
provides for the Governor in Council to make regulations
prescribing licence fees and licence conditions for the purposes
of tour operator licences issued under new sections 27C to 27L.
Clause 40 inserts new sections 76 and 77 in the National Parks Act 1975
which provides for transitional arrangements to the new tour
operator licensing scheme. It ensures that a person who has
applied for a licence within four months of the commencement of
clause 37, which commences on a day to be proclaimed or on
1 July 2011 it not proclaimed earlier, will not be guilty of an
offence until the application is finally determined.
PART 6--AMENDMENT OF THE WILDLIFE ACT 1975
Clause 41 inserts a definition of tour operator licence in section 3 of the
Wildlife Act 1975 which means a licence granted under
section 21B.
Clause 42 inserts new Part IIA in the Wildlife Act 1975 which establishes a
new licensing scheme for tour operators and activity providers on
state wildlife reserves.
New section 21A makes it an offence to conduct an organised
tour or recreational activity for profit on reserved Crown land
unless that person holds a tour operator licence. New section
21A(2) provides that the offence does not apply to a person who
holds another type of licence or permit under the Act or
regulations, or a person who leases the land on which the activity
will take place. New section 21A(3) provides for the Governor
in Council to exempt classes of person from the requirement to
obtain a tour operator licence by Order in Council. The Order
must be on the recommendation of the Minister and published in
the Government Gazette.
New section 21B provides for the Secretary to grant a tour
operator licence for a period of no more than 10 years.
New section 21C provides for a person to apply for a tour
operator licence. New section 21C(2) specifies that an
application must be accompanied by the fee payable for the
first year of the licence as determined in accordance with the
regulations (unless the regulations otherwise provide).
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New section 21C(3) provides for the fee to be refunded in the
licence is not granted.
New section 21D provides for the licence holder to pay an annual
licence fee determined in accordance with the regulations.
The fee is payable at the time specified in the regulations.
New section 21E provides for licence conditions to be
determined by the land manager or prescribed in regulations.
New section 21F makes it an offence to breach a condition of a
tour operator licence. The penalty for a natural person is
20 penalty units. The penalty for a body corporate is 100 penalty
units.
New section 21G provides for the holder of a tour operator
licence to apply to the Secretary for a variation of the licence or a
condition of the licence. The Secretary may vary the licence,
either on application or on his or her own motion if of the opinion
that a variation is required. New sections 21G(3) and (5) specify
that the variation has effect on the land manager giving written
notice to the licence holder.
New section 21H provides for the Secretary to suspend a tour
operator licence by notice in writing given to the licence holder.
The land manager may only suspend a licence if satisfied that
there are reasonable grounds to do so. New section 21H(2)
provides that a suspension has effect from the time specified in
the notice (which cannot be earlier than the day after the day on
which the notice is given). The suspension has effect for the
period specified in the notice, which cannot be more than
90 days. New section 21H(3) provides that a notice of
suspension must state that the licence holder may make
submissions regarding the suspension and specify when any
submissions must be made.
New section 21I provides for a licence holder whose licence
has been suspended to make submissions in respect of that
suspension within the period specified in the notice of suspension
given under new section 21H. New sections 21I(2) and (3)
provide that the Secretary must consider any submissions
received and review the decision to suspend the licence.
New section 21I(4) requires the Secretary to notify the licence
holder of the outcome of the review.
New section 21J provides for a Secretary to cancel a tour
operator licence if satisfied on reasonable grounds that the
licence holder has been found guilty of an offence against the
Act or regulations or has breached a condition of the licence.
New section 21J(2) provides that before cancelling a licence the
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Secretary must notify the licence holder of the proposed
cancellation and allow the licence holder the opportunity to make
oral or written submissions within a period specified in the
notice. New section 21J(4) provides that the Secretary must have
regard to any submissions before deciding whether or not to
cancel the licence must notify the licence holder of that decision.
Clause 43 amends section 25A(4) of the Wildlife Act 1975 to reflect that a
provision relating to cancellation of certain licences is not
relevant to the tour operator licensing scheme, which includes
specific cancellation provisions.
Clause 44 makes minor consequential amendments to sections 25B(1),
25C(1) and 25(D)(1) of the Wildlife Act 1975 to reflect that tour
operator licences are part of a licensing scheme that is separate
for other types of licences issued under the Wildlife Act 1975.
Clause 45 inserts new section 87A in the Wildlife Act 1975 which provides
for the Governor in Council to make regulations prescribing
licence fees and licence conditions for the purposes of tour
operator licences issued under new sections 21A to 21I.
Clause 46 inserts new section 96 in the Wildlife Act 1975 which provides
for transitional arrangements to the new tour operator licensing
scheme. It ensures that a person who has applied for a licence
within four months of the commencement of clause 42, which
commences on a day to be proclaimed or on 1 July 2011 if not
proclaimed earlier, will not be guilty of an offence until the
application is finally determined.
PART 7--AMENDMENT OF THE COASTAL MANAGEMENT
ACT 1995
Clause 47 inserts a definition of relevant coastal recommendation in
section 3 of the Coastal Management Act 1995 which includes
recommendations of the Victorian Environmental Assessment
Council relating to coastal Crown land that has been accepted by
Government under Part 3 of the Victorian Environmental
Assessment Council Act 2001, or any recommendation of the
Land Conservation Council that relates to coastal Crown land
under section 5(1) of the Land Conservation Act 1970 before its
repeal.
Clause 48 amends section 31(2)(c) of the Coastal Management Act 1995,
which relates to contents of a management plan for coastal
Crown land, to refer to the definition of relevant coastal
recommendation as inserted by clause 47.
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Clause 49 amends section 40(2)(c) of the Coastal Management Act 1995,
which relates to a decision by the Minister to consent to use or
development of Crown land, to refer to the definition of relevant
coastal recommendation as inserted by clause 47.
PART 8--AMENDMENT OF OTHER ACTS
Clause 50 amends section 6(1) of the Conservation, Forests and Lands
Act 1987 to substitute a reference to the Department of Natural
Resources and Environment with a reference to the Department
of Sustainability and Environment.
Clause 51 amends section 7(4) of the Conservation, Forests and Lands
Act 1987 to substitute a reference to the Department of Natural
Resources and Environment with a reference to the Department
of Sustainability and Environment.
Clause 52 amends section 6(2) of the Land (Revocations and Other
Matters) Act 1991 to correct a reference to a folio number of a
Crown grant so that the Act, which is now redundant, can be
repealed.
Clause 53 inserts new section 12 in the Land (Revocations and Other
Matters) Act 1991 to correct a reference to a folio number of a
Crown grant so that the Act, which is now redundant, can be
repealed.
Clause 54 amends the First Schedule to the Fraser National Park Act
1957 to correct a reference to a folio number of a Crown grant so
that the Act, which is spent, can be repealed.
Clause 55 inserts new section 7 to the Fraser National Park Act 1957 to
correct a reference to a folio number of a Crown grant so that the
Act, which is spent, can be repealed.
PART 9--REPEAL OF AMENDING ACT
Clause 56 provides for the repeal of the Act on 1 July 2012. This is a
standard provision included in all amending legislation.
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