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2012
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
PUBLIC UNLEASED LAND BILL
2012
EXPLANATORY
STATEMENT
Presented by
Shane Rattenbury
MLA
Minister for Territory and Municipal Services
Introduction
This explanatory statement relates to the Public Unleased Land Bill 2012 (the Bill) as presented to the Legislative Assembly. It has been prepared in order to assist the reader of the bill and to help inform debate on it. It does not form part of the bill and has not been endorsed by the Assembly.
The Statement is to be read in conjunction with the Bill. It is not, and is
not meant to be, a comprehensive description of the bill. What is said about a
provision is not to be taken as an authoritative guide to the meaning of a
provision, this being a task for the
courts.
Overview
The Public Unleased Land Bill 2012
replaces and repeals the Road and Public Places Act 1937 (the
Act). A name change is necessary as ‘public place’ will
soon become a defined term under the Legislation Act 2001. The definition
does not align with the use of the term in the context of public unleased land.
The Public Unleased Land Bill 2012 seeks to modernise the current
legislative regime that regulates the use of public land. The bill revamps the
permit and approval system for the use of public land, providing a broad
framework which allows for administrative arrangements that can support and
promote the object of the bill which is facilitating the use of public unleased
land while ensuring that the amenity and natural value of public spaces is not
diminished.
The current Act presents a range of administrative difficulties. In the lead
up to the centenary of Canberra celebrations and the increase in the number of
public events on public land, a contemporary scheme that effectively balances
the free use of public spaces for activities such as enjoying a picnic or
playing a game of informal sport, with the need for effective regulation of
public spaces for specific events is required. The bill aims to ensure a fair
balance for at times competing uses and the protection of the amenity and
natural value of public unleased land.
The primary decision-maker under the
bill is the director-general. The director-general can delegate his or her
power to other officers under the Public Sector Management Act 1994.
The bill provides, under Part 3, a definition of use of land to be applied in
relation to the permitting and licencing of activities on public unleased land.
The Government acknowledges that the definition of use of land included in the
Bill is, and has to be, very broad given the wide range of activities that may
need to be captured in managing and protecting the amenity and natural value of
the land. To strengthen the Bill and provide clarity, the Bill also provides
that the Minister can declare that an activity is, or is not, covered by Part 3.
The intention behind this power is to ensure the fair regulation of the land and
to help provide additional certainty for members of the public given the scope
of the definition. The declaration is a disallowable instrument.
While many
people and corporations who use public unleased land under permit arrangements
will not be substantially affected by changes to the bill, there are a number of
key reforms which will impact on-going permit-holders.
The permit system
will now allow for the transfer of permits to a new permit-holder. This reform
has been sought by businesses which use unleased public land on an ongoing basis
such as for outdoor seating or the display of goods such as motor vehicles. A
permit can be transferred with the sale of a business on application by the
permit-holder if the new permit-holder is a suitable person to hold a
permit.
The term of the public unleased land permit has been extended to
two years from the current 12 month term. This will provide certainty for
business and reduce the administrative burden in renewing a permit on an annual
basis.
There is greater scope for the decision maker to place
conditions on the holding of a permit. This will free up the permit system to
allow permits to be granted that in the past may not have been granted because
of an inability by the decision maker to place conditions on a case by case
basis. It is not the intention that the ability to place conditions on permits
will result in prescriptive or onerous conditions and it is intended that these
will only be put in place to ensure that the permitted activities are consistent
with the objectives of the Act. The decision to apply conditions to a permit is
a reviewable decision.
There is now discretion for a decision maker not
to renew a permit. The former legislation made renewal mandatory even when
there had been a change in circumstances. This has proved problematic for
permit-holders and for the enforcement of permits where there has been, for
example, safety concerns generated by changed circumstances. The intention is
to ensure that permits are renewed as a matter of course where the person
remains a suitable person to hold a permit and the activity remains a suitable
activity.
The bill also provides, in addition to indemnity, the capacity
for the Territory to seek a financial assurance from permit-holders where this
is reasonably necessary. Many activities in public places create wear and tear
on infrastructure and can damage property and land. Events held in parks where
there are underground watering systems for example, can damage these systems
when large objects are placed or moved around. In the past such damage has
often been repaired at a cost to the community. It is appropriate that permit-
holders provide financial assurances that can be called upon to repair damage
without the Territory needing to recover costs through the courts. While
financial assurances will not be limited to commercial operators, it is not the
intention of the Government to disadvantage the not-for-profit or charity sector
by seeking financial assurances from all permit-holders. Each permit
application will be considered on its merits and opportunity provided for
consultation about conditions such as the application of a financial assurance.
Additionally further criteria for imposing conditions may be developed by the
Minister to clarify the operation of financial assurances.
The reformed
legislation includes a clearer framework for the permit system. It is intended
that the detailed administrative arrangements will be set out in policy and
procedure which will be developed in consultation with stakeholders. It is not
intended that the permit system be a policing system for the use of public
unleased land. Many activities will not require permits and it is only those
uses or activities that exclude some or all members of the public
from the place that may require a permit (see definition in clause 41).
Guidance on when a permit is required will be contained in policy and procedure
developed to support the permit system (in addition to the instrument making
power discussed above).
The enforcement mechanisms have been reviewed and
authorised officers created under the bill. Authorised officers are provided
with a number of powers including the power to give directions to people using a
public place. Authorised officers under the bill have a range of template
powers provided to ACT officers who are authorised under Territory legislation
with regulatory powers.
All of the offences included in the bill are
suitable as infringement notice offences. In anticipation of a new
Magistrates Court (Public Unleased Land) Penalty Infringement Notices)
Regulation the bill introduces a number of strict liability offences. A
prerequisite for an infringement notice is a strict liability offence. A
discussion on the appropriateness of strict liability offences is included
below.
Strict Liability Offences
The offences under this
bill are strict liability offences. A strict liability offence under section 23
of the Criminal Code 2002 means that a fault element is not required to
be proved for the commission of an offence. Essentially, this means that conduct
alone is sufficient to make the defendant culpable. However, under the Criminal
Code, all strict liability offences have a specific defence of mistake of fact.
Subclause 23(3) of the Criminal Code makes it clear that other defences may
still be available for use in strict liability offences.
This is a
regulatory bill and people and companies who undertake work, interfere or use
public unleased land under an approval or permit will be aware of their
responsibilities and obligations in relation to the approval or permit.
Compliance with the provisions of the bill is important to ensure the
safety of the community and the amenity and protection of public unleased land.
In this bill, in all instances of strict liability offences, a person is
provided with notice of the action required to comply with the law and
opportunity to comply before an offence can be found. Where the public may be
subject to a strict liability offence under this bill, for example in using
closed roads (clause 13) or failing to comply with a direction to leave a
permitted place (clause 97), notice is provided through signage or warning
issued by an authorised person.
The penalty units for all strict
liability offences in the bill are within the acceptable range for a strict
liability offence. Justification for those offences with relatively higher
penalty units is provided in detail under the relevant clause.
A
discussion of the human rights implications of the strict liability offences is
also included below.
Human Rights
The bill engages the right
to freedom of movement. Section 13 of the Human Rights Act 2004
(HRA) ensures that ‘Everyone has the right to move freely within the ACT
and to enter and leave it...’ .
Freedom of movement includes access to public parks, roads and other public
spaces that will be regulated by the Bill. There are two elements of the
limitation created by the Bill. Firstly the bill controls the activities that
can be undertaken in public places and the conditions under which the activities
can occur and imposes an obligation to obtain a permit to use a public space
where that use involves carrying on an activity on the public unleased land in a
way that excludes some or all members of the public from the place. It is
important to note that this definition captures only the carrying on of an
activity rather than merely transient or incidental use of a public place and it
is not intended that the ordinary use of public facilities will be captured by
the bill. For example, it is intended that the exclusive use provisions , would
only be applied in specific locations for special events such as a wedding or a
concert.
Secondly by issuing permits and approvals for the exclusive use by a
permit-holder, the permit excludes other people who would normally have a right
to use the space.
The bill seeks to ensure an orderly approach to the
balancing of rights in the community and is a necessary and practical
response to regulating the use of public land. It ensures that the land remains
undamaged and protected from unauthorised interference so that it can be enjoyed
and accessed appropriately by everyone in the community. It also ensures that
activities are undertaken safely and with minimal interference to other
people.
Throughout the bill there are a range of mechanisms to address
these limitations and minimise that impact they will have on members of the
community. For example as part of the decision making process, the bill provides
for the opportunity to notify and consult with other relevant people who may be
affected by the issuing of a permit or approval.
Overall the limitation
on the protected freedom of movement is relatively minor, the bill does not seek
to restrict the ordinary activities that people regularly use public land for in
their day to day lives, any limitation that does exist from time to time or in
relation to a particular activity that they may wish to undertake will be
regulated only to the extent necessary to protect the same right of others to
that space and necessary to achieve a fair balancing between the competing
demands on that space.
Having a regulatory scheme in place to balance
these competing interests and protect the community’s interest in
maintaining public assets and the amenity of public spaces is in the public
interest and any limitations created are the least restrictive means available
of achieving this aim whilst facilitating the use of public land.
The
bill also engages the right to privacy in section 12 of the Human Rights Act,
which states that “everyone has the right not to have his or her
privacy, home or correspondence interfered with unlawfully or arbitrarily and
not to have his or her reputation unlawfully attacked”.
In
creating a regulatory regime that includes a range of compliance and enforcement
powers necessary to ensure the integrity of this regime such as the powers to:
request names and addresses, issue directions, enter property, seize abandoned
items and hold unclaimed property, the bill potentially limits this right.
Part 4 of the bill sets out enforcement provisions for the regulatory
regime and provides template provisions in relation to powers of entry, search,
seizure, confiscation or forfeiture and entry into a controlled environment.
These provisions underpin the execution of powers authorised in other parts of
the bill. For example, under clause 36, in certain circumstances entry to
private property is allowed to remove a dangerous tree. In carrying out this
power, Part 4 (specifically clause 107 - Power to enter premises) informs the
standard considerations that need to be made in undertaking this
action.
The limitations on the right to privacy are relatively minor and
typically only occur when some previous notice or warning has been given or to
protect public safety. There is no reasonable alternative to the proposed
limitations available and it would simply not be possible to achieve the
bill’s purpose of ensuring that public land is safe and protecting
everyone’s right to use the land without these necessary
limitations.
In relation to the creation of strict liability offences a
concern is at times raised that strict liability offences reverse the onus of
proof and create a limitation on the right to a presumption of innocence
protected by section 22(1) of the Human Rights Act 2004. It is
important to note that the presumption of innocence still exists in relation to
the physical elements of the offence. To the extent that the right is limited
because the obligation shifts to the accused to prove a defence once the conduct
has been established without the need to prove the fault element, this is
demonstrably justifiable. Given the nature of the offences proposed, the
importance of having an effective mechanism to facilitate the use, and protect
the amenity of public land and that this is the least restrictive means
reasonably available means of achieving the that purpose, the criteria set out
in section 28 of the Human Rights Act 2004 are
satisfied.
Outline of provisions
PART 1
Preliminary
Clause 1 – Name of Act
This
clause provides that the bill, when enacted, will be known as the Public
Unleased Land Act 2012.
Clause 2 – Commencement
This clause states that the Act will commence on the date decided by the
Minister (within 6 months of the notification day) and commencement notified in
the Legislation Register.
Clause 3 –
Dictionary
This clause explains that the dictionary at the end of the Act
is part of the Act.
Clause 4 – Notes
This clause makes
it clear that the notes in the Act are explanatory only and do not
form part
of the Act. By contrast, an example included in the Act is part of the Act it
may extend but does not limit the meaning of the Act (see section 132 of the
Legislation Act 2001).
Clause 5 – Offences against Act
– application of Criminal Code etc
This clause makes it clear that
other legislation applies in relation to offences
against the Act. The
Criminal Code 2002 applies to all offences against the
Act and the
Legislation Act 2001 deals with the meaning of offence penalties
that
are expressed in penalty units.
Clause 6 – Object of Act
This clause sets out the object of the Act which is to ensure that the
amenity and natural value of public unleased land is protected and to facilitate
the use of public unleased land.
Clause 7 – Application of Act
to Territory
This clause provides that section 16 (Offence—fail to
comply with drainage direction); section 20 (Offence—carry out work on
public unleased land without approval) and section 22 (Offence—fail to
comply with repair damage direction) do not bind the Territory despite the
operation of section 121 of the Legislation Act.
Clause 8
– Meaning of public unleased land
This clause defines, for the
purposes of the Act, what is public unleased land.
Clause 9 –
Meaning of public road
This clause defines, for the purposes of the Act,
a public road as any street, road, lane, thoroughfare, footpath, or place that
is territory land and is open to, or used by, the public.
PART 2
Managing and protecting public unleased land
DIVISION 2.1
Public Roads
Clause 10 – Director-general may fix or
change public road levels
This clause gives the director-general a
discretionary power to fix or change the level of a public road. It describes
the mandatory process the director-general must follow in making a decision to
use this power. The process includes publishing two prescribed notices in a
daily newspaper about the proposal at least 30 days before the level is to be
fixed or changed. There must be an opportunity for a public hearing.
Clause 11 – Director-general may temporarily close public
roads
This clause gives the director-general a discretionary power to
temporarily close a public road (a closed road). It provides for
notification of the road closure. The notification requirements do not apply in
urgent circumstances. An urgent circumstance could, for example, be flooding or
a spillage.
Clause 12 – Approval to use closed road
A
person can apply to the director-general for approval to use a closed road
(closed road approval). The director-general must follow a
mandatory process on receiving an application. It includes giving a copy of the
application to each entity the director-general considers should be consulted
about the application, and telling each entity that they may give a written
submission to the director-general, within a 15 working days time frame, about
why the closed road should not be used, or how the closed road should be used.
Such entities may include, for example, the ACT Heritage Council, the
Environment Protection Authority (EPA), ACT Planning and Land Authority
(ACTPLA).
In deciding whether to issue an approval, the director-general
must consider certain things. The director-general must be reasonably satisfied
that use of the road in accordance with the approval would not be likely to
cause unacceptable risk to people, property or the road. An approval may be
subject to any condition that the director-general reasonably believes is
necessary for the management or protection of the road.
This is a
reviewable decision (see Part 5). The director-general must give the applicant a
reviewable decision notice about the decision.
Clause 13 –
Offence - use closed road without approval
This clause creates an
offence if a person uses a closed road and does not hold a close road approval.
This is a strict liability offence.
Clause 14 –
Director-general may make temporary public roads
This clause sets out
the process to be followed if the director-general temporarily closes a public
road and considers that it is necessary to make a temporary road for use while
the road is closed. If the land for the temporary public road is fenced, the
director-general must tell the occupier or owner of the land about the temporary
public road at least 24 hours before making the temporary public road unless
there are urgent circumstances. Urgent circumstances could, for example, be
flooding or a spillage. The clause provides that the Territory is liable for
damage, other than minor incidental damage, caused in making the temporary
road.
DIVISION 2.2 Drainage affecting public unleased land
Clause 15 – Directions to construct surface water drains
This clause sets out the process for issuing directions to do certain
things if surface water from land overflows into public unleased land and
damages the public unleased land. The director-general may direct (a
drainage direction) the land owner to either repair the damage or
construct stated drains or both of these things. A drainage direction must be in
writing and specify details of the damage and repair required. The direction
must also state when it must be complied with. It should be noted that the power
to make the direction includes power to amend or repeal the
direction.
This decision is a reviewable decision (see Part 5). The
director-general must give the applicant a reviewable decision notice about the
decision.
Clause 16 – Offence—fail to comply with
drainage direction
This clause creates an offence with a maximum penalty
of 5 penalty units. The offence is a strict liability offence and applies if the
person does not comply with a drainage direction. The land owner, through a
drainage direction, has notice of the need to comply.
Clause 17
– Construction of drains by Territory
This clause applies if a
land owner is subject to a drainage direction and fails to comply with the
direction. The director-general may, if a drain has not been constructed or
maintained as directed, enter onto the relevant land, with the assistance that
the director-general considers necessary, and construct or maintain the drains
noted in the drainage direction. Reasonable costs of repairing the damage can
be recovered in a court as a debt owed to the Territory by the land owner.
DIVISION 2.3 Work on public unleased land
Clause 18
– Meaning of work on public unleased land
This clause
defines the meaning of work on public unleased land. The definition includes any
interference with Territory property on the public unleased land and
construction work carried out on the public unleased land.
Clause 19
– Approval to carry out work on public unleased land
This clause
sets out the process by which a person may apply to the director-general for
approval to carry out work on public unleased land (a work
approval). The director-general must consult with relevant entities
which can make written submissions. The clause outlines the considerations the
director-general must take into account when making a decision to approve the
carrying out of work. This approval may include conditions such as lighting a
work site after dark or fencing a work site. The approval may be subject to any
condition that the director-general reasonably believes is necessary to
eliminate or minimise an unacceptable risk or effect to the public land or other
members of the public consistent with the provisions of subclause
(4).
This is reviewable decision (see Part 5). The director-general must
give the applicant a reviewable decision notice about the
decision.
Clause 20 – Offence- carry out work on public unleased
land without approval
This clause provides that it is a strict liability
offence with a maximum penalty of 10 penalty units to undertake work, as defined
in clause 18, on public unleased land without a permit issued under clause 19.
DIVISION 2.4 Damage to public unleased land
Clause
21 – Directions to repair damage to public unleased land
This
clause sets out the process to be followed if the director-general issues a
direction (repair damage direction) after a person causes damage
to public unleased land or Territory property on public unleased land. The
director-general may direct in writing that the person is to repair the damage.
A direction must state the public unleased land and Territory property (if any)
and the damage to be repaired. The direction must also state the timeframe
within which the direction must be complied, however the direction must allow at
least one month for the repair work to be completed. The power to make the
direction includes the power to amend or repeal the direction.
This is a
reviewable decision (see part 5). The director-general must give the applicant a
reviewable decision notice about the decision.
Clause 22 –
Offence—fail to comply with repair damage direction
This clause
creates a strict liability offence with a maximum penalty of 20 penalty units
for failing to comply with a direction issued under clause 21.
Clause
23 – Repair of damage by Territory
This clause applies if a person
is subject to a repair damage direction and fails to comply with the direction.
The director-general may repair the damage and recover the reasonable costs of
repairing the damage as a debt due to the Territory by the person.
DIVISION 2.5 Signs on public unleased land
Clause
24 – Meaning of sign on public unleased land
This clause
defines the meaning of a sign on public unleased land which includes an
advertisement and a public notice.
Clause 25 – Approval to
place sign on public unleased land
This clause sets out the process that
must be followed for approval to place a sign on public unleased land. The
director-general must provide notice of the application to relevant entities and
seek written submissions. In making a determination to approve a sign the
director-general must consider certain matters. Matters include whether placing
the sign in accordance with the approval would be likely to cause undue
disturbance or inconvenience to people, unacceptable risk to people or property,
or damage the public unleased land. If the sign is a movable sign, the approval
is subject to the condition that the placement and keeping of the sign must
comply with the Movable Signs Code of Practice (see clause 27).
An
approval may be subject to any other condition that the director-general
reasonably believes is necessary for the management or protection of the public
unleased land.
This is a reviewable decision (see Part 5). The
director-general must give the applicant a reviewable decision notice about the
decision.
Clause 26 – Offence—Place sign on public
unleased land without approval
This clause creates a strict liability
offence with a maximum penalty of 10 penalty units for placing a sign on public
unleased land without an approval under clause 25.
Clause 27 –
Movable signs code of practice
The Minister can approve a code of
practice about movable signs on public unleased land. An approved code of
practice is a disallowable instrument. The clause lists the range of provisions
that may be included, for example, the kind of insurance policy that a person
placing a movable sign on public unleased land must have and how movable signs
are to be constructed.
Clause 28 – Offence—Fail to comply
with code of practice
This clause creates a strict liability offence
with a maximum penalty of 50 penalty units if the failure relates to a condition
to have insurance; or if the failure does not relate to an insurance condition
the maximum penalty is 10 penalty units.
The higher penalty of 50 penalty
units is justified in this offence as it relates to the condition of insurance.
It is important that a person placing a movable sign have appropriate insurance
to compensate for any harm (personal injury or property damage) that may be
caused by placing a movable sign. It is important for the Territory to ensure
compliance and given the seriousness of risk a higher penalty unit is justified.
As the requirement for insurance is a condition of the approval the
approval-holder will be on notice about the requirement.
Clause 29
– Territory indemnified regarding movable signs
This clause
provides that a person who places a movable sign on public unleased land with
approval is liable to indemnify the Territory for any liability the Territory
incurs as a result of that sign being placed there.
DIVISION 2.6
Trees and other plants affecting public unleased land
Clause 30
– Definitions—Division 2.6
This clause sets out definitions
for this division.
Clause 31 – Direction to prune tree etc
overhanging public unleased land
This clause applies if the
director-general believes, on reasonable grounds, that a tree or other plant is
overhanging public unleased land and likely to obstruct or inconvenience anyone
on the public unleased land. The director-general may direct (a plant
pruning direction) the occupier of the land on which the tree or other
plant is growing to prune the tree or other plant.
A decision under this
section is a reviewable decision (see Part 5). The director-general must give
the applicant a reviewable decision notice about the decision.
If the
tree or other plant is a registered tree and the pruning would, or
may, damage the tree, a tree protection approval (see definition
Clause 30) for the pruning must be in force and signed by the Conservator before
the director-general issues the plant pruning direction. A tree protection
approval is not needed for regulated trees because they are exempted under the
Tree Protection Act 2005, s 19 (d) (iv) and (v).
The clause sets
out what the direction must include and the timeframe for compliance.
Clause 32 – Offence—fail to comply with plant pruning
direction
This clause creates a strict liability offence with a maximum
penalty of 5 penalty units for failing to comply with a plant pruning direction
issued under clause 31.
Clause 33 – Pruning or removal of tree
etc by Territory
This Clause describes the process that the
director-general may take if an occupier fails to follow a plant pruning
direction. The director-general may enter onto the relevant land with the
assistance necessary and prune the tree or other plant. In addition, the
reasonable costs of the pruning may be recovered in court as a debt due to the
Territory by the occupier.
This clause engages section 12 of the HRA in
relation to privacy rights. The purpose of the clause is to protect public
safety and it is justifiable that should the occupier not comply with the
direction, the Territory is able to enter for the specific purpose of achieving
the objective.
This is a reviewable decision (see Part 5). The
director-general must give the applicant a reviewable decision notice about the
decision.
Clause 34 – Direction to remove tree etc endangering
public on public unleased land
This clause describes the scope of the
direction and the timeframe for compliance if the director-general issues a
direction (a plant removal direction) believing on reasonable
grounds that a tree or other plant endangers the safety of anyone on public
unleased land. An example is where a tree or plant is endangering the safety of
a person on public unleased land by obstructing the vision of drivers on a
public road.
If the tree or other plant is a registered
tree, a tree protection approval must be in force before
the director-general can issue the plant removal direction.
Clause 35
– Offence—fail to comply with plant removal direction
This
clause creates a strict liability offence with a maximum penalty of 50 penalty
units for failing to comply with a direction to remove a plant.
The
penalty is at the top of the ordinarily acceptable range for strict liability
offences because of the risk that a failure to comply may create for public
safety.
Clause 36 – Removal of tree etc by Territory
This
clause applies if an occupier fails to comply with a plant removal direction.
The director-general may enter onto the relevant land, with the assistance that
the director-general considers necessary, and remove the tree or other plant and
recover the reasonable costs of the removal as a debt due to the Territory by
the occupier.
This clause engages section 12 of the HRA in relation to
privacy rights. The purpose of the clause is to protect public safety and it is
justifiable that should the occupier not comply with the direction then the
Territory is able to enter for the specific purpose of achieving the
objective.
DIVISION 2.7 Graffiti visible from public unleased land
Clause 37 - Meaning of occupier of leased territory land-div
2.7
This clause sets out the meaning of occupier in this
division.
Clause 38 – Graffiti removal from property on leased
territory land
This clause sets out the process for the removal of
graffiti on property on leased territory land if the graffiti is visible from
public unleased land.
Clause 39 – Graffiti removal liability of
the Territory
This clause covers the liability of the Territory in
relation to the damage (other than minor incidental damage) caused by the
removal of the graffiti.
PART 3 Public unleased land permits
This part provides for the issuing of a public unleased land permit where a
person or corporation wants to use public unleased land and the person is a
suitable person to hold a permit and the activity a suitable activity for a
public unleased land permit.
Activities that require a permit are broad
and include the placing of objects such as fencing or charity bins, the holding
of markets or weddings, the placing of furniture in outdoor cafe areas and large
commercial and community events such as concerts.
Other laws may apply to
the staging of events or other activities in the Territory and the issuing of a
permit to use land is not of itself an agreement to the staging of an event or
activity.
DIVISION 3.1 Important concepts
Clause 40 – What is a public unleased land permit?
This clause defines a public unleased land permit as meaning a permit
that authorises the permit-holder to exclusively use the stated public unleased
land, at a stated time, and for a stated activity.
Clause 41 –
When does a person use public unleased land?—Pt 3
This clause
defines the use of public unleased land. A person uses public unleased land if
the person carries on an activity on the public unleased land in a way that
excludes some or all members of the public from the place. Examples of using
public unleased land include: placing tables and chairs on the footpath outside
a cafe, placing a construction skip on a footpath, placing a charity bin on a
footpath, holding markets on unleased land, holding a concert in a park, holding
a wedding in a park and parking a car in a park.
Under sub-clause 41(2),
the Minister has been provided with the power to declare any activity on public
unleased land either is, or is not a use of that land. This may relate to
specific activities for which permits are routinely sought or activities over
which there is some confusion as to whether or not a permit is needed. It also
allows for classes of activities to be proscribed, for example it may prescribe
that the use of picnic and bbq facilities for a reasonable period of time is not
a use under Part 3 and clarify that no permit is needed. The intention of the
provision is to provide greater clarity for members of the public about how the
system works and their obligations under the scheme. The determination of
matters by the Minister is a disallowable instrument.
Clause 42
– Who is an influential person for a corporation?—Pt 3
This
clause defines the meaning of who an influential person is for the purposes of
dealing with an application by a corporation under the Act. The definition
is central to regulating corporations, as information about each influential
person is required to be provided for consideration in determining the
suitability of a corporate application under the Act.
DIVISION 3.2
Public unleased land permits—offences
Clause 43 –
Offence—use public unleased land without permit
This clause creates
an offence where a person uses public unleased land and does not hold a public
unleased land permit. Use is defined in clause 41. In effect, this
offence relates to a person who uses public unleased land to the exclusion of
other people and does not have a permit, approval or other authorisation to use
the land. It does not create an offence for people who are merely utilising the
land transiently or otherwise ordinarily using public spaces for their intended
purposes such as informal sporting games at the local park.
This clause
creates a strict liability offence with a maximum penalty of 20 penalty units.
Clause 44 – Offence—fail to comply with condition of
permit
This clause creates a strict liability offence with a maximum
penalty of 20 penalty units for breach of a condition that is not a financial
assurance condition and 30 penalty units if it is a breach of that condition.
DIVISION 3.3 Public unleased land permits—application
Clause 45 – Public unleased land permit—application
This clause sets out the process for applying for a public unleased land
permit and the form and content of the application. It must include the activity
for the permit and include a plan (a location plan) clearly
showing the location, boundaries and dimensions of the public unleased land for
the permit and the position of the activity on the public unleased
land.
If the activity for the permit includes placing tables and chairs
at an outdoor eating or drinking place, then the plan must be professionally
drafted to ensure that the reader can easily and clearly see that the placement
of the items is not in a location that may cause harm to others or damage
Territory assests.
DIVISION 3.4 Public unleased land
permits—suitability of people
Clause 46 – Who is a
suitable person to hold a public unleased land permit?
This clause
defines a suitable person to hold a public unleased land permit.
The director- general in making a decision about a person’s suitability to
hold a public unleased land permit must consider suitability information about
the person and any further information given under clause 49 to the
director-general.
Clause 47 – What is suitability
information about a person?
This clause defines what suitability
information about a person is. It could include information about any
conviction of or finding of guilt against the person for an offence against this
Act, or any proven non-compliance by the person with a legal obligation in
relation to carrying on an activity on public unleased land. For example,
failing to comply with a removal direction to remove an object.
It may also include any refusal of an application by the person for a
licence, permit or other authority to carry on an activity on public unleased
land. For example, an application refused for a licence under section 303 of
the Planning and Development Act 2007.
Clause 48 –
Suitability of people—further information about people
This clause
sets out the further information the director-general may seek before making a
decision about whether a person is a suitable person to hold a public unleased
land permit.
DIVISION 3.5 Public unleased land
permits—suitability of activities
Clause 49 – What is
a suitable activity for a public unleased land permit?
This clause
defines suitable activity for a public unleased land permit. It
lays out the process the director-general must follow and the considerations to
be taken into account in deciding whether the activity is a suitable activity
for a public unleased land permit. These mandatory considerations include any
submission received as part of the public consultation about the activity, and
any risk management plan.
Clause 50 – What is suitability
information about an activity?
This clause sets out what information is
suitability information about an activity.
Suitability
information depends on whether the activity involves placing an object on public
unleased land or if the activity involves holding an event on public unleased
land.
When placing an object suitability information includes the size,
nature and use of the object as well as information about possible risks and
requirements of construction work to place the object.
If the activity
involves an event being held on public unleased land then suitability
information includes information about the nature of the event and how many
people are expected to attend the event as well as any risks and how the risks
will be minimised.
The director-general must also consider this
suitability information when deciding to amend or renew a public unleased land
permit (see clause 70 and 74).
Clause 51 – Suitability of
activities—further information about activity
This clause applies
if the director-general is making a decision about whether an activity is a
suitable activity for a public unleased land permit.
The director-general
may issue an activity information notice seeking additional information about
the activity within a specified timeframe. If an applicant does not comply with
the activity information notice then the director-general need not make a
decision as to whether the activity is a suitable activity for a
permit.
Clause 52 – Suitability of activities—other
approvals
Some proposed activities on public unleased land require other
approvals such as licences or permits under another law of the Territory or the
Commonwealth. For example, an environmental authorisation under the
Environment Protection Act 1997 to cover noise levels at a music
festival.
This clause ensures that the director-general can obtain a copy
of the stated approval, licence, permit or other authority before deciding an
application for a public unleased land permit. The requirement to produce the
other approval must be made by written notice to the applicant.
Clause
53 – Suitability of activities—public consultation
If the
director-general is satisfied that carrying on a proposed activity on public
unleased land in accordance with a permit is likely to have a significant
impact on people lawfully at adjacent or nearby places, then the
director-general may require the applicant to undertake public consultation.
This clause provides for the director-general to issue a written notice
(a public consultation notice) requiring the applicant to display
a sign about the application and place a public notice in a daily newspaper.
The provision sets out the type of information that must be included in the
notice including that written submissions can be made to the director-general
during the public consultation period (15 working days after the sign or notice
has been placed, whichever is the later).
Clause 54 –
Suitability of activities—public consultation submissions
If the
director- general receives a submission under section 54(3) and proposes to
decide that the activity is not a suitable activity for a permit, this clause
provides an opportunity for applicants to show cause why the activity should not
be considered unsuitable for the public unleased land.
The director-
general must give the applicant written notice of the proposed decision and the
opportunity to respond by written submission within 20 working days after the
date of the notice.
Clause 55 – Suitability of
activities—risk management plan
This clause provides for the
mandatory preparation of a risk management plan where the director-general is
satisfied that carrying on the activity in accordance with a permit is likely
to cause undue risk to people or property.
In such situations the
director-general may give notice (a risk management plan notice)
to the applicant requiring the applicant to prepare a risk management plan for
the public unleased land permit. The risk management plan must identify the
risks to people and property and detail the procedures, practices and
arrangements for eliminating or minimising the risks.
The
director-general need not decide an application for a public unleased land
permit if the director-general has given the applicant a risk management plan
notice and the applicant does not comply with the notice.
Clause 56
– Suitability of activities—inspection of object
This clause
provides for the inspection of an object before deciding whether a permit will
be issued. Where the activity is the placing of an object on unleased public
land and the director-general requires an inspection of the object an inspection
notice can be issued.
The director-general need not decide
whether an activity is a suitable activity for a public unleased land permit if
the director-general has given the applicant an inspection notice and the
applicant does not comply with the notice.
DIVISION 3.6 Public
unleased land permits—decision
Clause 57 – Public
unleased land permit—decision on application
Clause 57 provides
for the decision by the director-general to issue a permit to an applicant if
reasonably satisfied of the suitability of the applicant and the suitability of
the activity for the public unleased land permit. A public unleased land permit
may be subject to any condition that the director-general reasonably believes is
necessary to meet the objectives of this Act. Examples of such conditions could
include the provision of a financial assurance, the fencing of the relevant
public unleased land or the holding of relevant insurance by the applicant.
The director-general must make a decision in the required time. The
meaning of required time is set out in clause 57(5) but generally means 28 days
after the last required action, for example, after the director-general receives
a risk management plan where this has been required.
This is a reviewable
decision (see Part 5). The director-general must give the applicant a reviewable
decision notice about the decision.
Failure to issue a public unleased
land permit within the required time is taken to be a decision not to issue the
public unleased land permit (see ACT Civil and Administrative Tribunal Act 2008,
s 12).
Clause 58 – Public unleased land
permit—form
This clause states the form a permit must take and the
information to be included in the permit.
Clause 59 –
Public unleased land permit—term
This clause provides that the
maximum term for a public unleased land permit is two years. The previous one
year maximum was determined as imposing an unacceptable burden on small
business.
DIVISION 3.7 Public unleased land permit—financial
assurance conditions
Clause 60 – Meaning of financial
assurance condition
This clause defines the meaning of
financial assurance condition on a public unleased land permit.
It means a condition requiring the permit-holder to give the director-general a
financial assurance of a stated kind and amount to protect the Territory from
financial loss in cases where damage to public unleased land is possible.
Clause 61 – Financial assurance condition—imposition
This clause allows the director-general to impose a financial assurance
condition on a public unleased land permit including a renewal or amended
permit. The director-general must be satisfied that it is justified having
regard to the likelihood that the permitted activity will cause serious or
material damage to the permitted public unleased land and that there is a
likelihood that action will need to be taken in the future to repair the damage.
The director- general must have regard to any financial assurance considerations
determined by the Minister and any other relevant matter.
Under
subclause 61 (5), the Minister may determine matters to be considered by the
director- general as financial assurance considerations. For example these may
include the status of the applicant as a registered charity or the type of risks
that are relevant to particular activities. A financial assurance considations
declaration is a disallowable instrument.
A financial assurance must be
given for the period stated in the condition on the public unleased land permit.
The financial assurance must be in the form of a bank guarantee, a bond,
an insurance policy or if none of those forms of security is appropriate in the
circumstances, another form of security that the director-general considers
appropriate. The director-general must not require financial assurance of an
amount greater than the total amount that the director-general reasonably
believes is needed to repair potential damage that could result from the use of
the land.
This provision is not intended to disadvantage charities or
not-for-profit groups when these groups seek to use public unleased land under a
permit. Rather, the intention is to ensure that there is capacity for the
Territory to proactively provide for reparation of damage where that likelihood
exists.
Clause 62 – Financial assurance condition—show
cause
This clause provides that the director-general must give notice to
the applicant of the intention to impose a financial assurance condition on an
applicant or a permit-holder.
The written notice must include the grounds
for the proposed condition and the amount and form of the proposed financial
assurance. The applicant or permit-holder has an opportunity to respond in
writing to show why the condition should not be imposed. Any submission must be
given to the director-general during the 20 working days after the date of the
notice.
Following consideration of any submissions and where the
director-general decides to impose the condition, the director-general must tell
the applicant or permit-holder about the decision and when the financial
assurance must be provided.
Clause 63 – Financial assurance
conditions—permit cancellation
This clause establishes that if a
financial assurance condition is required and the permit-holder does not provide
the financial assurance in accordance with the condition or by the due date, the
director-general must cancel the public unleased land permit.
Clause
64 – Financial assurance condition—claim or realisation
This
clause sets out when the director-general may recover the reasonable expenses of
repairing the damage by making a claim on, or realising, the financial
assurance.
Clause 65 - Financial assurance condition—notice
before claim or realisation
This clause sets out the process the
director-general must follow before making a claim or realisation on the
financial assurance. This provision provides a show clause period where a
permit-holder has an opportunity to respond in writing as to why the financial
assurance should not be claimed or realised as proposed.
Clause 66
– Financial assurance condition—recovery of extra costs
This
clause applies if the director-general makes a claim on or realises a financial
assurance condition under a public unleased land permit and the amount recovered
by the director-general is less than the reasonable expenses that the
director-general incurred, or will incur, in repairing the damage. The provision
sets out the process and timelines for giving a written notice requiring the
permit-holder to pay the reasonable difference between expenses and the realised
assurance. A decision under this clause is a reviewable decision (see Part
5).
If the permit-holder does not pay the stated amount then the amount
that remains unpaid together with interest on the unpaid amount, is a debt due
to the Territory by the permit-holder. The Minister can determine interest
rates for this clause as set out under subsection 130(1)(b) of the Act.
Clause 67 – Financial assurance condition—money held by
Territory
This clause provides that interest accrues on an amount of
money held by the Territory as financial assurance which has been provided as a
condition of a permit. The interest rate is determined by the Minister under
subclause 130(1) (c). The permit-holder is entitled each year to the accrued
interest if it has not been claimed by the director-general under
clause 64. Provision is also made under this clause for the payment to the
permit-holder of unclaimed moneys when the financial assurance is no longer
required; the permit is surrendered under clause 76; or, cancelled under clause
81 when regulatory action is taken.
DIVISION 3.8 Public unleased land
permits—amendment, transfer, renewal, etc
Clause 68 –
Public unleased land permit—amendment initiated by director-general
The director-general can initiate an amendment to a public unleased land
permit in certain circumstances. This clause provides that before an amendment
notice can be given a proposed amendment must be notified to the permit-holder
in writing providing an opportunity for the permit-holder to comment on the
proposed amendment before a decision is made. A proposal notice is not necessary
where the permit-holder applied for, or agreed in writing, to the amendment.
This decision is a reviewable decision (see Part 5). The director-general
must give the applicant a reviewable decision notice about the decision.
Clause 69 – Public unleased land permit—application to
amend permit
A permit-holder may apply to the director-general to amend
the public unleased land permit.
If a permit-holder is a corporation and
there is a change in the person who is the influential person then the
permit-holder must apply for an amendment to the permit.
Clause 70
– Public unleased land permit—decision on application to amend
permit
If the director-general receives an application to amend a public
unleased land permit this clause provides the considerations and conditions
under which the director-general makes a decision to amend. These
considerations are very similar to those that the director-general must consider
when issuing a permit.
The decision to amend or refuse to amend is a
reviewable decision (see Part 5). The director-general must give the applicant
a reviewable decision notice about the decision.
Clause 71 –
Public unleased land permit – application to transfer permit
This
clause provides the application requirements (eg. in writing, suitability
information) for a permit-holder to apply to the director-general to transfer
the public unleased land permit to someone else.
Clause 72 –
Public unleased land permit – decision on application to transfer permit
This clause provides the considerations and timeframes under which the
director-general can decide to transfer the public unleased land permit to the
proposed new permit-holder. The director-general must be satisfied that the
proposed new permit-holder or influential person for the proposed new
permit-holder is a suitable person to hold a public unleased land
permit.
The decision must be made within 28 days, or if additional
information is required from the applicant 28 days after the information is
provided by the applicant.
A decision to refuse to transfer a permit or
impose or amend a condition in the transfer of the permit is a reviewable
decision (see Part 5) and the director-general must give the applicant a
reviewable decision notice.
Clause73 – Public unleased land
permit—application for renewal of permit
This clause provides that
a permit-holder can apply to have the permit renewed. The application must be in
writing and received by the director-general at least 30 days before the permit
expires however the director-general can extend the time for making an
application. If an application has been made to renew a public unleased land
permit then the permit remains in force until the application is
decided.
These conditions replace the previous regime which provided
annual renewal of permits with no discretion in relation to renewal.
The
clause provides that only in cases where a permit-holder is no longer a suitable
person to hold a permit or the permitted activity is no longer a suitable
activity that a permit will not be renewed. This may occur where, for example,
a permit-holder has committed an offence under this Act such as not complying
with a permit direction or where the physical situation of an activity has
changed. For example, changes to unleased public land and infrastructure may
not allow an object to be placed safely even though it could be when the
original permit was issued.
The intention of the change is not to
disadvantage commercial operations. The test by which a permit is granted is
the same in relation to suitably of person and activity as the original issuing
of a permit. In this regard, if there is no change in situation, the
expectation is that the renewal will be granted.
The longer period of
permit, from one year to two years, will remove some of the administrative
burden associated with renewing licences on an annual basis.
Clause
74 – Public unleased land permit—decision on application for renewal
of permit
This clause provides criteria for the consideration of an
application to renew a permit under section 73.
A decision to refuse to
renew a public unleased land permit or impose or amend a condition in renewing
the permit is a reviewable decision (see Part 5). The director-general must give
the applicant a reviewable decision notice about the decision.
Failure
to renew a public unleased land permit within the required time is taken to be a
decision not to renew the permit (see ACT Civil and Administrative Tribunal Act
2008, s 12).
Clause 75 – Public unleased land
permit—replacing when lost, stolen or destroyed
This clause
provides for the replacement of a lost, stolen or destroyed permit. A fee may
be determined under clause 130 for this provision.
Clause 76 –
Public unleased land permit—surrender
This clause provides for the
surrendering of a public unleased land permit by a permit- holder.
Clause 77 – Offence—fail to notify change of name or address
This clause introduces a strict liability offence with a maximum penalty
of 1 penalty unit when a permit-holder does not notify a change of name or
address.
Clause 78 – Public unleased land
permit—director-general to change name and address
This clause
sets out the process to change the name and address on a
permit.
DIVISION 3.9 Public unleased land permits—regulatory
action
Clause 79 – Public unleased land
permit—grounds for regulatory action
This clause provides the
grounds for regulatory action against a permit-holder. Grounds for regulatory
action are provision of false or misleading information by a permit-holder in
relation to an application or contravention of a condition of a permit by a
permit-holder.
Clause 80 – Public unleased land
permit—regulatory action
This clause provides the regulatory
action that can be taken against a permit-holder. These actions include the
cancelling or suspension of a permit, imposing additional conditions or amending
conditions and disqualifying a person from applying for a public unleased land
permit.
Clause 81 – Public unleased land permit—taking
regulatory action
This clause sets out the mandatory process that must
be followed if regulatory action is proposed. The director-general must provide
procedural fairness to the permit-holder by providing a show cause notice and
the opportunity for the permit-holder to respond to the proposal to take
regulatory action.
If the director-general believes on reasonable
grounds that a ground for regulatory action has been established the clause
provides the options open to the director-general in taking further action.
Clause 82 – Public unleased land permit—immediate suspension
This clause applies if a show cause notice under section 82 is provided
to a permit-holder and, having regard to the grounds stated in the notice, the
director-general believes on reasonable grounds that the person’s permit
should be suspended immediately in the interests of public safety.
Clause 83 – Public unleased land permit—effect of
suspension
This clause sets out the effect of suspension of a
permit.
Clause 84 – Offence—fail to return amended,
suspended or cancelled permits
This clause sets out the strict liability
offence which has a maximum penalty of 10 penalty units for a permit-holder
failing to return an amended, suspended or cancelled permit to the
director-general.
Clause 85 – Action by director-general in
relation to amended or suspended permit
This clause provides that a
permit must be returned after suspension has ended or a replacement provided
where a permit is amended because of regulatory action.
DIVISION 3.10
Public unleased land permit register
Clause 86 – Public
unleased land permit register
This clause establishes a register of
permits and the required information to be kept on the register. It provides
that the register may be kept in any form, including electronically, that the
director-general considers appropriate.
Clause 87 – Correction
and keeping up-to-date register
This clause provides for the register to
be corrected where there is a mistake, error or omission.
PART 4
Enforcement
DIVISION 4.1 General
Clause 88
– Definitions—Part 4
This clause defines terms used in part
4 of the Act.
DIVISION 4.2 Authorised people
Clause
89 – Authorised people
This clause provides the director-general
with the power to appoint a public servant as an authorised person for this
Act.
In addition, a person who is appointed as an investigator under the
Fair Trading (Australian Consumer Law) Act 1992 is by virtue of that
appointment an authorised person for this Act.
Clause 90 –
Identity cards
This clause applies to an authorised person appointed
under section 89 (1).
The director-general must give an authorised
person an identity card stating the person’s name and that the person is
an authorised person. The card must show a recent photograph of the authorised
person, the card’s date of issue and expiry, and anything else prescribed
by regulation. A person commits an offence if the person stops being an
authorised person and does not return the person’s identity card to the
director-general as soon as practicable but no later than 7 days after the day
the person stops being an authorised person.
Failure to do so is a strict
liability offence with a maximum penalty of 1 penalty unit. An exception applies
if the identity card has been lost or stolen or destroyed by someone else.
Clause 91 – Power not to be exercised before identity card
shown
This clause provides that an authorised person may only exercise a
power under this Act if the authorised person first shows the person the
authorised person’s identity card.
Those authorised officers
appointed as investigators under the Fair Trading (Australian Consumer Law)
Act 1992 are required to show identity cards under Section 38 of that
Act.
DIVISION 4.3 Directions etc
Subdivision 4.3.1
General directions
The suite of powers required by authorised officers
to ensure the integrity of this regime includes the issuing of directions. The
issuing of directions by an authorised officer is consistent with Territory
compliance models.
Clause 92 – Direction to give name and
address
This clause provides standard directions that apply if a police
officer or authorised person suspects on reasonable grounds that a person has
committed, is committing or is about to commit an offence against this Act, or
may be able to assist in the investigation of an offence against this
Act.
Clause 93 – Offence—fail to comply with direction to
give name and address
This is a strict liability offence with a maximum
penalty of 5 penalty units for failing to comply with a direction.
This
section does not apply to a person if the authorised person did not produce
their identity card for inspection by the person if asked or if the authorised
person or a police officer did not warn the defendant that failure to comply
with the direction is an offence.
Clause 94 – Direction to
produce approval, permit or insurance policy
A police officer or
authorised person may direct an approval-holder to produce an approval or a
permit-holder to produce the permit. If the permit includes a financial
assurance condition requiring the permit-holder to hold a stated kind of
insurance policy, the direction can include that the insurance policy must also
be produced. The direction must be in writing and state the permit and policy to
be produced, and where and to whom the permit or policy is to be produced, and
when the direction must be complied with. Power to make the direction includes
power to amend or repeal the direction.
The police officer or authorised
person may do one or more of the following: inspect the permit and policy
produced; make copies of, or take extracts from the permit and policy produced;
and seize and remove the permit or policy produced if the officer or person
believes on reasonable grounds that it may provide evidence of an offence
against the Act.
Clause 95 – Offence—fail to comply with
direction to produce approval, permit or insurance policy
This clause
establishes an offence for failing to comply with a permit direction issued
under clause 94. This section does not apply to a person if the person has a
reasonable excuse for failing to comply with the direction. There is a maximum
penalty of 10 penalty units.
Clause 96 – Direction to leave
permitted public unleased land
This clause provides a police officer or
authorised person to direct a person to leave an area that is being used under a
permit, where that person does not have the consent of the permit-holder to be
in the area. This has been drafted in recognition of the right to freedom of
movement under the HRA as people generally have a right to and expectation that
they may access public unleased land. The provision ensures that there must be
reasonable belief of the breach on the part of the official, reasonable notice
in the form of a written notice issued to the person and a warning that it is an
offence to breach the notice.
Clause 97 – Offence—fail
to comply with Direction to leave permitted public unleased land
This is
a strict liability offence. A police officer or authorised person must give
proper notice under section 96. It is not an offence if the person is not
warned that failure to comply with the direction is an offence.
Clause
98 – Direction to remove objects from public unleased land.
This
clause allows a police officer or authorised person to direct a person to remove
an object that the person has placed on public unleased land when the placing of
the object is not authorised. The clause does not apply to authorised placement
of objects, specifically where there is approval to place the object (for
example, under a closed road approval or work approval), the placement is
authorised under a public unleased land permit, another Territory law or if the
object is a vehicle parked on a road or road related areas so as not to
contravene the Road Transport (Safety and Traffic Management) Act 1999
(RT(STM) Act).
The parking of vehicles on unleased public land is
generally regulated through RT(STM) Act and associated regulation. The
definition of park in this clause is found in the Road Transport (Safety and
Traffic Management) Regulation 2000 and is consistent with the usual meaning
of the term.
Road and road related area are defined in the RT(STM) Act.
A road related area includes the area that divides a road; a footpath or nature
strip adjacent to a road; areas open to the public and designated for use by
cyclists or animals; public areas that are not roads but open to the public for
driving, riding or parking vehicles; the shoulder of the road; and, other areas
that are open to or used by the public that are declared under the Road
Transport (General) Act 1999.
The form of the removal direction
and the conditions under which the direction can be issued are prescribed in the
Act and include a provision for the direction to be given to the person by
securing it to the object in a conspicuous place.
Clause 99 –
Offence—fail to comply with removal direction
This clause
establishes a strict liability offence for failing to comply with a removal
direction. The maximum penalty is 10 penalty units.
Subdivision
4.3.2 Urgent action
Clause 100 –
Director-general’s directions
This clause provides the
director-general with the power to issue directions in certain circumstances. A
direction can be issued if the director-general believes on reasonable grounds
that there is, or is likely to be a breach of a public unleased land permit or
another contravention of this Act and in addition the breach is or is
likely to cause disturbance, inconvenience or offence to people in nearby
places or risk to people or property.
The director-general may direct a
permit-holder, employee of a permit-holder or a person working at the permitted
place to take action to prevent the breach or contravention. A direction to
reduce loud noise is an example of a situation where a director-general’s
direction might be used.
A director-general’s direction must be in
writing and either state the action to be taken and when the direction must be
complied with, or state the conduct that should stop and for how long the
direction is in force
This is a reviewable decision (see Part 5). The
director-general must give the applicant a reviewable decision notice about the
decision.
Clause 101 – Offence—fail to comply with
director-general’s direction
This clause creates a strict
liability offence for failing to comply with a director-generals direction with
a maximum penalty of 20 penalty units.
Clause 102 – Emergency
closure of permitted place
This clause provides for the closure of a
permitted place by a senior police officer if the officer believes on reasonable
grounds that a breach of this Act has happened, or is likely to happen, and the
closure of the place is necessary to prevent or reduce undue risk to people or
property. If an emergency closure order is made the permit-holder must be told
in writing the name of the police officer making the order and when the order
begins and ends. The permit is suspended for the period of the
order.
Clause 103 – Emergency closure notice
This
clause provides that if a senior police officer makes an emergency closure order
then as soon as practicable an emergency closure notice must be
provided to the permit-holder. This order must be in writing stating the date of
issue of the notice and the duration of the order. It must include details of
the breach or potential breach of the Act and the basis for the officer’s
belief. Records must be kept by police of the notice and a copy provided to the
director-general.
Clause 104 – Offence—fail to comply with
emergency closure order
This clause creates a strict liability offence
for failing to comply with an emergency closure order with a maximum penalty of
30 penalty units.
The penalty units are at the higher end of the
acceptability in a strict liability offence however are justified on the basis
of the emergency nature of the notice.
DIVISION 4.4 Removal and
disposal of objects on public unleased land by Territory
Clause
105 – Removal of objects by Territory
If a person is subject to a
removal direction (see clause 98) and does not comply with the direction or an
object is abandoned or causing an obstruction or hazard for people, this clause
provides that an authorised person may remove the object and place it in a
retention area.
Clause 106 – Disposal of objects by Territory
This clause allows the Territory to dispose of an object moved to a
retention area under clause 105. Unless an object is a vehicle, it is taken to
be uncollected goods under the Uncollected Goods Act 1996 and can be
disposed of under that Act.
If the object is a vehicle, the
director-general must give the registered operator of the vehicle a written
notice of the retention and allow the operator seven days to collect the vehicle
before it can be disposed of under the Uncollected Goods Act
1996.
DIVISION 4.5 Powers of authorised people
Clauses 107 to 126 are template powers provided to ACT
officers who are authorised under Territory legislation with regulatory
powers.
Clause 107 – Power to enter premises
This
clause lays out the standard provisions for an authorised person to enter
premises.
Clause 108 – Production of identity card
This clause protects the privacy rights of an occupier of premises,
permit-holder or other person by requiring an authorised person or police
officer to show their identification cards when they enter
premises.
Clause 109 – Consent to entry
This clause
protects the right to privacy of an occupier of premises, permit-holder or other
person by outlining various conditions which a police officer or authorised
person must comply with when seeking consent to enter premises.
Clause
110 – General powers on entry to premises
This clause outlines
the activities an authorised person can undertake after
entering licensed
premises. Occupiers or anyone else at the premises are obliged
to provide
reasonable assistance in carrying out these activities. There is a maximum
penalty of 20 penalty units should a person not take reasonable steps to
comply.
Clause 111 – Power to seize things
This clause
empowers an authorised person who has entered premises with consent, or under a
warrant, or believing an offence against this Act has occurred, or where public
safety or damage to property poses a risk, to seize anything at the premises
related to an offence and of evidential value.
The clause makes it a
strict liability offence for a person to interfere with a seized or restricted
item, once the authorised person has declared the item to be seized and not to
be disturbed unless allowed by the authorised person.
DIVISION 4.6
Search warrants
Clause 112 – Warrants generally
This clause outlines the procedures an authorised person must follow to
obtain a warrant for entry to premises in connection with enforcement actions
under the Act. Search warrants can only be issued by the Courts and the
provision prescribes when a magistrate may issue a warrant and what the contents
of the warrant must contain.
Clause 113 –
Warrants—application made other than in person
This clause
facilitates the obtaining of a warrant by an authorised person by means other
than in person. This process allows for warrants to be obtained in urgent or
special circumstances.
Clause 114 – Search
warrants—announcement before entry
This clause requires an
authorised person to hand to the occupier a copy of the warrant and a document
setting out the rights and obligations of the occupier while the warrant is
being executed.
This clause protects the right to privacy of an occupier
of premises, permit-holder or other person by requiring an authorised person to
undertake specific actions before executing a warrant under the Act. The
exception applies only if a person’s safety is at risk or someone attempts
to frustrate the execution of the warrant.
Clause 115 – Details
of search warrant to be given to occupier etc
This clause lays out the
procedure to be followed if the occupier of premises, or someone else who
apparently represents the occupier, is present at the premises while a search
warrant is being executed, the authorised person or a person assisting must make
available to the person a copy of the warrant and a document setting out the
rights and obligations of the person.
Clause 116 – Occupier
entitled to be present during search etc
This clause acknowledges the
right of an occupier to be present at the premises and to observe the execution
of the search, except if the occupier’s presence impedes the search or
frustrates its objectives.
DIVISION 4.7 Return and forfeiture of
things seized
Clause 117 – Receipt for things seized
This clause provides that for anything seized, a receipt must given in
accordance with the requirements of this clause, giving details about what will
happen to the thing after it is seized.
Clause 118 – Moving
things to another place for examination or processing under search warrant
This clause facilitates the movement of things which are suspected of
being able to be seized under the warrant to another location only for
processing. The purpose is to allow authorised people to move things for the
purposes of determining if the terms of a search warrant apply.
Clause
119 – Access to things seized
This clause facilitates anyone who
would be entitled to inspect a seized thing or take extracts from it or make
copies to continue do so after the thing is seized under this
Act.
Clause 120 – Return of things seized
This clause
provides that items seized must be returned or compensation paid unless certain
circumstances apply.
Clause 121 – Forfeiture of seized things
This clause provides that seized things may be forfeited to the
Territory under certain conditions.
Clause 122 – Power to
destroy unsafe things
This clause gives authorised people the power to
destroy things that present a safety hazard. The strict liability offence is
included to ensure that a direction is complied with to avoid a risk to public
safety if there is a failure to comply.
Clause 123 – Application
for order disallowing seizure
This clause provides an avenue for people
who are entitled to claim a thing which has been seized to apply to a Magistrate
to have the thing returned.
Clause 124 – Order for return of
seized thing
This clause sets out specific criteria which the
Magistrates Court must consider before issuing orders to return a seized
thing.
DIVISION 4.8 Enforcement—miscellaneous
Clause 125 – Damage etc to be minimised
This clause
imposes a duty on a police officer or authorised person to minimise damage as a
result of enforcement action under the Act. There is also a duty to provide
notice to the owner of anything damaged, setting out the details of the damage
and advising that compensation may be sought.
Clause 126 –
Compensation for exercise of enforcement powers
This clause allows a
person to claim compensation from the Territory and a court to order
compensation be paid to the owner of a thing that has been damaged through an
enforcement action if it would be just, under the circumstances, to do
so.
PART 5 Notification and review of decisions
Clause 127 – What is a reviewable decision?—pt
5
This clause defines the meaning of reviewable decision for the
purposes of Part 5 of the Act. All decisions listed in Schedule 1, column 3
under a provision of this Act mentioned in column 2 are decisions which are
reviewable for the purposes of the ACT Civil and Administrative Tribunal Act
2008.
Clause 128 – Reviewable decision notices
This
clause requires the director-general to give a reviewable decision notice to the
relevant entity (schedule 1, column 4), in relation to a reviewable decision
that has been made.
The director-general must also take reasonable steps
to give a reviewable decision notice to any other person whose interests are
affected by the decision (see ACT Civil and Administrative Tribunal Act
2008, s 67A).
The requirements for a reviewable decision notice are
prescribed under the ACT Civil and Administrative Tribunal Act 2008.
Clause 129 – Applications for review
This clause
establishes that a person receiving a reviewable decision notice, or any other
person whose interests are affected by the decision, can make an application to
the ACT Civil and Administrative Tribunal for review of a listed reviewable
decision.
PART 6 Miscellaneous
Clause 130 –
Determination of fees etc
This clause gives the Minister the power to
determine fees for this Act.
In addition, the Minister can determine the
annual percentage rate at which interest payable under section 66 (4) and the
annual percentage rate at which interest accruing under section 67 (a) is to be
calculated. These provisions relate to the financial assurances.
These
determinations are disallowable instruments.
Clause 131 –
Approved forms
This clause gives the director-general power to approve
forms for this Act. If the director-general approves a form for a particular
purpose, the approved form must be used for that purpose.
An approved
form is a notifiable instrument.
Clause 132 – Regulation-making
power
The Executive may make regulations for this Act. Regulations must
be notified.
Clause 133 – Legislation amended-sch 2
This
Clause provides for consequential amendments to other
Legislation.
Clause 134 – Legislation repealed
This
clause is a technical provision which repeals The Roads and Public Places Act
1937 and all legislative instruments made under that Act.
PART 20
Transitional—Roads and Public Places Act 1937
This part
provides transitional provisions that determine the treatment of matters decided
under the Roads and Public Places Act 1937 before the commencement of the
new Public Unleased Land Act 2012.
Clause 200 –
Definitions –pt 20
This clause defines the commencement day for the
purposes of this part of the bill making it the day the Public Unleased Land
Act 2012 commences.
Clause 201 – Transitional
–permissions to use closed road to be closed road approvals
This
clause establishes a transitional arrangement ensuring that current permissions
to use closed roads made under the Roads and Public Places Act 1937 is
taken to be a closed road approval on the commencement of the new Act.
As part of the transitional arrangements the closed road approval will
be taken to expire on the day stated in the permission and cannot be amended,
transferred or renewed.
Clause 202 – Transitional –
permissions to interfere etc be work approvals
This clause establishes a
transitional arrangement ensuring that current permissions granted under the
Roads and Public Places Act 1937 to interfere with a public place or
other thing, or to excavate in a public place, or permissions under section 9 of
the Roads and Public Places Act 1937 are taken to be work approvals under
the same conditions and terms on the commencement of the new Act.
As part
of the transitional arrangements the work approval will be taken to expire on
the day stated in the permission and cannot be amended, transferred or renewed.
Clause 203 – Transitional – permissions to exhibit
advertisements to be sign approvals
This clause establishes a
transitional arrangement ensuring that current permissions to exhibit an
advertisement or notice under the Roads and Public Places Act 1937 is
taken to be a sign approval on the commencement of the new Act.
As part
of the transitional arrangements the sign approval will be taken to expire on
the day stated in the permission and cannot be amended, transferred or renewed.
Clause 204 – Transitional – old permits to be public
unleased land permits
This clause establishes a transitional arrangement
ensuring that current permits to use public land under the Roads and Public
Places Act 1937 are taken to be public unleased land permits on the
commencement of the new Act.
As part of the transitional arrangements
the public Unleased Land permit will be taken to expire on the day stated in the
permit and cannot be amended, transferred or renewed.
Clause 205
– Expiry-pt 20
This provides that Part 5 will expire after two
years. Part 5 provides transitional provisions and as such is only kept in the
Act for a limited period of time.
SCHEDULE 1 Reviewable Decisions
This lists the reviewable decisions, that can be reviewed in the ACT
Civil and Administrative Tribunal (ACAT).
SCHEDULE 2 Consequential
amendments
This sets out all the consequential amendments required
for the following pieces of legislations
Part 2.1 Building Act 2004
Clause 2.1 – Dictionary, definition of Land, paragraph
(b)
This is a technical amendment updating the definition of land as a
consequence of the establishment of the Public Unleased Land Act
2012.
Clause 2.2– Dictionary, definition of owner, paragraph
(d)
This is a technical amendment updating the definition of owner as a
consequence of the establishment of the Public Unleased Land Act
2012.
Part 2.2 Crimes Act 1900
Clause 2.3
– Section 119(3), definition of public road
This is a technical
amendment updating the definition of public road as a consequence of the
establishment of the Public Unleased Land Act 2012.
Part
2.3 Domestic Animals Act 2000
Clause 2.3 –
Dictionary, definition of public place, paragraph (a)
This is a
technical amendment updating the definition of public place as a consequence of
the establishment of the Public Unleased Land Act 2012.
Clause 2.5
– Dictionary, new definition of public unleased land
This is
a technical amendment inserting a definition of public unleased
land.
Part 2.4 Gungahlin Drive Extension Authorisation Regulation
2004
Clause 2.6 – Section 4 (c)
This is a technical
amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act 2012.
Part
2.5 Hawkers Act 2003
Clause 2.7 – Section
4(a)(ii)
This is a technical amendment updating reference to a public
unleased land permit as a consequence of the establishment of the Public
Unleased Land Act 2012.
Clause 2.8 – Section 23
Heading
This is a technical amendment updating reference to legislation
as a consequence of the establishment of the Public Unleased Land Act
2012.
Clause 2.9 – Section 23 (1) (a) and (b)
This is a
technical amendment updating reference in legislation in relation to closed
roads and work approvals as a consequence of the establishment of the Public
Unleased Land Act 2012.
Clause 2.10 – Section 26(2)
This
is a technical amendment updating reference to legislation as a consequence of
the establishment of the Public Unleased Land Act 2012.
Clause 2.11
– Section 40(1) (b)
This is a technical amendment updating
reference to the appointment of a person under the Public Unleased Land Act
2012.
Clause 2.12 – Section 42 (6), definition of identity card,
new paragraph (aa)
Inserts a provision which identifies an authorised
person under the Public Unleased Land Act 2012 by their identify card.
Part 2.6 Liquor Regulation 2010
Clause 2.13 –
Section 6 (2) (d)
This is a technical amendment updating reference to a
public unleased land permit as a consequence of the establishment of the
Public Unleased Land Act 2012.
Clause2.14 – Schedule 1,
section 1.9(3) and (4)
This is a technical amendment updating reference
to a public unleased land permit as a consequence of the establishment of the
Public Unleased Land Act 2012.
Clause 2.15 – Dictionary,
definition of public place permit and note
This is a technical
amendment updating the definition of public unleased land permit
as a consequence of the establishment of the Public Unleased Land Act
2012.
Part 2.7 Planning and Development Act 2007
Clause 2.16 – Section 7 (1), definition of development,
paragraph (g)
This is a technical amendment updating reference to
legislation as a consequence of the establishment of the Public Unleased Land
Act 2012.
Clause 2.17 - Section 134 (6)
This is a technical
amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act 2012.
Clause 2.18
– Section 134 (8), definition of authorised use, paragraph (a)
(iii) and (iv)
This is a technical amendment updating reference to
legislation as a consequence of the establishment of the Public Unleased Land
Act 2012.
Clause 2.19 – Section 204 (1) (b) (iii) and
(iv)
This is a technical amendment updating reference to legislation as a
consequence of the establishment of the Public Unleased Land Act
2012.
Clause 2.20 – Section 204 93) (b)
This is a
technical amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act 2012.
Clause 2.21
– Section 204 (4)
This is a technical amendment updating reference
to legislation as a consequence of the establishment of the Public Unleased
Land Act 2012.
Clause 2.22 – Section 305 (a) and (b)
This
is a technical amendment updating reference to legislation as a consequence of
the establishment of the Public Unleased Land Act 2012.
Clause 2.23
– Schedule 2, item 5
This is a technical amendment updating
reference to legislation as a consequence of the establishment of the Public
Unleased Land Act 2012.
Part 2.8 Planning and Development
Regulation 2008
Clause 2.24 – Section 29 (h)
This is a
technical amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act 2012.
Clause 2.25
– Schedule 1, section 1.67, note 3
This is a technical amendment
updating reference to legislation as a consequence of the establishment of the
Public Unleased Land Act 2012.
Clause 2.26 – Schedule 1,
section 1.68
This is a technical amendment updating reference to
legislation and definition of public unleased land as a consequence of the
establishment of the Public Unleased Land Act 2012.
Clause 2.27
– Schedule 1 Section 1.69, note 3
This is a technical amendment
updating reference to legislation as a consequence of the establishment of the
Public Unleased Land Act 2012.
Clause 2.28 – Schedule 1,
section 1.104 (1) (d), note 3
This is a technical amendment updating
reference to legislation as a consequence of the establishment of the Public
Unleased Land Act 2012.
Part 2.9 Surveyors Act
2007
Clause 2.29 – Dictionary, new definitions of public
unleased land and public road
This is a technical amendment updating the
definition of public unleased land and public road as a consequence of the
establishment of the Public Unleased Land Act 2012.
Clause 2.30
– Dictionary, definition of survey, paragraph (c )
This is a
technical amendment updating the terminology as a result of changes to the
dictionary under clause 2.29.
Part 2.10 Tree Protection Act 2005
Clause 2.31 – Section 19(1) (d) (iv)
This is a
technical amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act 2012.
Part
2.11 Trespass on Territory Land Act 1932
Clause 2.32 –
Section 8A and 8B
Sections 8A and 8B are removed. These sections are
antiquated provisions that provided for the permitted use of unleased public
land. These provisions have not been used for many years in favour of the
provisions on the placement of objects on public land contained in the Roads
and Public Places Act 1937 . The review and modernisation of the provisions
in the Roads and Public Places Act identified these sections of the Trespass to
Territory Land Act as no longer relevant or functional.
Clause 2.33
– Section 8C (1) ( c)
This clause removes a provision consequential
to the repealed sections 8A and 8B (see clause 2.32).
Part
2.12 Uncollected Goods Act 1996
Clause 2.34 – Section 14
(2) (b)
This is a technical amendment updating reference to legislation
as a consequence of the establishment of the Public Unleased Land Act
2012.
Part 2.13 Unit Titles Act 2001
Clause 2.35
– Section 20(1)(d)
This is a technical amendment updating
terminology as a consequence of the establishment of the Public Unleased Land
Act 2012.
Clause 2.36 – Division 4.3 heading
This is a
technical amendment updating terminology as a consequence of the establishment
of the Public Unleased Land Act 2012.
Clause 2.37 – Section
37A heading
This is a technical amendment updating terminology as a
consequence of the establishment of the Public Unleased Land Act
2012.
Clause 2.38 – Section 37A(1)(b)
This is a technical
amendment updating terminology as a consequence of the establishment of the
Public Unleased Land Act 2012.
Clause 2.39 – Dictionary,
definition of public place
This is a technical amendment updating
the definition of public place as a consequence of the establishment of the
Public Unleased Land Act 2012.
Part 2.14 Unit Titles Regulation
2001
Clause 2.40 – Section 2E(1)(h)
This is a technical
amendment updating reference to legislation as a consequence of the
establishment of the Public Unleased Land Act
2012.
Dictionary
The Dictionary defines terms used in this
bill as provided by clause 3.