Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Catchment and Land Protection (Amendment)
Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for the commencement of the Bill. The Bill will come
into operation on a day or days to be proclaimed with a forced
commencement date of 5 January 2004.
Clause 3 provides that, in the Bill, the Catchment and Land Protection
Act 1994 is referred to as the Principal Act.
Clause 4 substitutes a new heading to Division 2 of Part 2 of the Principal
Act to recognise that Catchment Management Authorities have
replaced Regional Catchment and Land Protection Boards.
Clause 5 amends section 35(1) of the Principal Act to replace the current
two-tier penalty for failure to comply with a land use condition
with a single higher maximum penalty of 60 penalty units.
Clause 6 amends the grounds in section 37(1) of the Principal Act on
which the Secretary may serve a land management notice to a
land owner. This will allow a land management notice to be
served if the Secretary is satisfied that measures need to be taken
to eradicate or prevent the growth or spread of noxious weeds
that are not State prohibited weeds. Currently, a land
management notice could not be issued for noxious weed control
unless the landowner had been already issued with a direction to
take action and that direction had not been complied with.
The amendment effected by clause 6 will provide for a more
efficient single step procedure.
Clause 7 substitutes a new section 40 into the Principal Act to provide for
land management notices to be binding on subsequent
landowners of land as well as the land owner who was originally
served with the notice. This means that the notice will now run
with the land.
1
551006 BILL LC CIRCULATION 11/4/2003
Clause 8 substitutes new section 41(1) into the Principal Act. New section
41(1) reflects the fact that land management notices run with the
land and will therefore bind subsequent land owners who are
Victorian Legislation and Parliamentary Documents
aware of the notice as well as the original land owner served with
the notice. Clause 8 also increases the penalty for failure to
comply with a land management notice to 240 penalty units.
Clause 9 inserts new section 42(2) into the Principal Act to remove the
requirement for the Secretary to get the consent of the relevant
Catchment Management Authority before revoking a land
management notice if it deals only with the control of noxious
weeds or pest animals or both. This makes the process for
revoking land management notices consistent with serving land
management notices.
Clause 10 inserts new section 42A into the Principal Act to enable variation
of a land management notice in certain circumstances. It will
allow the Secretary to vary the requirements of the notice only at
the request of a land owner who became the owner of the land to
which the notice applies after the notice was served.
Clause 11 replaces the current two-tier penalty under section 43(7) of the
Principal Act for failure to comply with an interim land
management notice with a single maximum penalty of
120 penalty units.
Clause 12 makes a minor amendment to section 46 of the Principal Act and
increases the current maximum penalty under that section for
failure to advise the Secretary of compliance with a land
management notice to 20 penalty units.
Clause 13 inserts new section 48(2A) into the Principal Act to allow a
person who has requested a variation of the notice under new
section 42A to apply to the Victorian Civil and Administration
Tribunal for review of a failure to grant the request within
14 days of the request or a decision to refuse that request.
Clause 14 inserts new section 48A(4) into the Principal Act to ensure that
section 48A(1) of the Principal Act cannot be used to apply for a
declaration concerning the validity of a decision in respect of a
land management notice that deals only with the control of
noxious weeds or pest animals or both. This is consistent with
the intention of section 48(3) of the Principal Act.
2
Clause 15 inserts new section 58A to allow for an emergency declaration of
State prohibited weeds by the Minister, if satisfied urgent action
is required. This amendment is intended to provide for rapid
Victorian Legislation and Parliamentary Documents
intervention in the event of an outbreak of new species of weeds
that pose a significant economic, environmental and social
impact to Victoria. The emergency declaration only applies for a
maximum of 3 months.
Clause 16 makes consequential amendments to the heading of section 59
and substitutes new section 59(1) of the Principal Act to reflect
that the Minister cannot make emergency declarations under
Part 8 in respect of plants that are listed on the threatened list in
an Order made under section 10(1) of the Flora and Fauna
Guarantee Act 1988.
This clause also amends section 59(3) of the Principal Act to
update a reference in the Flora and Fauna Guarantee Act 1988.
Clause 17 makes a consequential amendment to section 68(1) of the
Principal Act to limit the application of section 68 to declarations
made by the Governor in Council.
Clause 18 amends the grounds in section 70(1) of the Principal Act on
which the Secretary may give directions to a land owner or to the
owner or person in possession of certain things. Land owners
may now only be directed to prevent the growth or spread of
State prohibited weeds under section 70(1)(a) of the Principal
Act. Section 70(1)(b) of the Principal Act has been amended to
add vehicles to the things, the movement of which is restricted to
prevent the spread of noxious weeds. Persons who are not
necessarily land owners may now be served with a direction
under section 70(1)(b) of the Principal Act.
This clause also inserts a maximum penalty of 120 penalty units
for failure to comply with direction of the Secretary under
section 70(1)(a) of the Principal Act. Clause 18 also inserts new
section 70(2A) into the Principal Act to provide that a person
must comply with a direction under section 70(1)(b), the penalty
being 120 penalty units. This clause also substitutes new
section 70(3) of the Principal Act to reflect the fact that directions
under section 70(1) may also be given to persons who are not
land owners.
3
Clause 19 inserts new section 70A into the Principal Act. New section 70A
is based on section 70(1)(a) of the Principal Act, which is now
repealed under clause 20 of the Bill. New section 70A seeks to
Victorian Legislation and Parliamentary Documents
prevent the spread of weeds by prohibiting the movement of
certain vehicles or machinery, implements and other equipment
from land on to a road unless reasonable precautions are taken to
ensure such vehicles or equipment are free from noxious weeds.
Clause 20 amends section 71 of the Principal Act to repeal section 71(1)(a)
of that Act as the requirements of this section are now
incorporated into new section 70A inserted by clause 19 of the
Bill. This clause also substitutes a new section 71(1)(b) for the
current provision in the Principal Act. New section 71(1)(b)
prohibits, without a permit, the possession of noxious weeds for
the purposes of sale, or the offering or selling of noxious weeds,
or the bringing into or transporting within Victoria of noxious
weeds. Included in the prohibitions are the seeds and parts of
noxious weeds that are capable of growing. This clause repeals
section 71(1)(g) of the Principal Act as the prohibitions in this
provision are now incorporated in new section 71(1)(b).
Clause 20 also increases the penalty for undertaking the activities
prohibited by section 70(1) of the Principal Act and the penalty
for failure to comply with a condition of a permit under
section 71(5) of the Principal Act. Both these penalties are
increased to a maximum of 120 penalty units.
Clause 21 inserts a maximum penalty for failure to comply with an
instrument from the Secretary directing a person to remove or
destroy noxious weeds under section 72(1)(a) of the Principal
Act. Clause 21 also inserts new section 72(3A), which makes it
an offence to fail to advise the Secretary when the direction has
been complied with, the penalty being a maximum of 20 penalty
units.
Clause 22 repeals section 73 of the Principal Act. This section provides for
the management and control of established pest animals (foxes,
rabbits and wild dogs) by issuing a direction to the land owner as
a first step before issuing a land management notice. Section 73
has been repealed as the Secretary is able to proceed directly to
issuing a land management notice in such circumstances under
section 37(1)(a) of the Principal Act
Clause 23 amends the heading to Division 3 of Part 8 of the Principal Act to
reflect that the Division will also cover the release of pest
animals.
4
Clause 24 amends section 75 of the Principal Act to increase the maximum
penalties for importing, keeping or selling prohibited pest
animals, controlled pest animals, regulated pest animals or
Victorian Legislation and Parliamentary Documents
established pest animals. This clause also makes minor
amendments to sections 75(5)(f) and 75(5)(g) of the Principal
Act, in the latter case to update terms used in the Prevention of
Cruelty to Animals Act 1986.
Clause 24 also inserts new section 75(6) into the Principal Act.
This section provides exceptions from the offences relating to
regulated and established pest animals under sections 75(3) and
75(4) of the Principal Act in certain circumstances that involve
the keeping and selling of those pest animals by a breeding
establishment licensed under the Prevention of Cruelty to
Animals Act 1986.
Clause 25 inserts new section 75A into the Principal Act to make it an
offence to release a prohibited, controlled, regulated or
established pest animal.
Clause 26 makes consequential amendments to section 77 of the Principal
Act, which relates to applications for permits, to include the
releasing of pest animals as an activity that may be the subject of
a permit.
Clause 27 inserts new section 77A into the Principal Act to make it an
offence to contravene a condition of a permit issued in respect of
prohibited, controlled, regulated or established pest animals.
The penalties range from 60 to 480 penalty units.
Clause 28 inserts new section 79A into the Principal Act to require an
authorised officer to produce evidence of his or her appointment
as an authorised officer before exercising a power under Part 9 of
the Principal Act or during the exercise of such powers if asked
to do so.
Clause 29 substitutes revised powers of authorised officers for sections 80,
81, 82 and 83 of the Principal Act.
New section 80 provides an authorised officer with the power to
enter and search land and exercise certain powers with the
consent of the occupier if the authorised officer believes on
reasonable grounds that any provision of the Principal Act or the
regulations has not been or is not being complied with.
Occupiers must be informed of their rights under new
section 80(3) and under new sections 80(4) and 80(5) may sign
an acknowledgement of consent to the taking of samples from the
land and be given a copy of that acknowledgement.
5
New section 81 provides an authorised officer with the power to
enter and search land (other than a dwelling) and exercise certain
powers after giving 24 hours notice to the occupier. This power
Victorian Legislation and Parliamentary Documents
may be exercised if the authorised officer believes on reasonable
grounds that section 20 of the Principal Act has not been
complied with or to ascertain whether a land management notice
under Division 1 of Part 5 of the Principal Act or a direction
under section 70 or 72 of the Principal Act has been complied
with. An authorised officer cannot enter the land if the occupier
responds to the notice by stating that entry to the land is refused.
Notice given under new section 81 must inform the occupier of
the purpose of the search and details of their rights. As in new
section 80, occupiers may sign an acknowledgement of consent
to the taking of certain samples. If an occupier is not present at
the time of the search, the authorised officer must set out certain
details of the search in a notice left at the land.
New section 82 provides an authorised officer with the power to
enter and search land (other than a dwelling) and exercise certain
powers without consent or notice in certain circumstances where
immediate action is required to deal with a State prohibited weed,
to check compliance with an interim land management notice, to
undertake work by the Secretary under section 79 of the Principal
Act or in certain circumstances where the authorised officer
believes on reasonable grounds that a serious land degradation
problem exists on the land. As in new section 81 if the occupier
is not present at the time of the search details of the search must
be set out in a notice left by the authorised officer.
New section 83 provides an authorised officer with the power to
enter and search land and exercise certain powers in
circumstances where a magistrate has issued the officer with a
search warrant. The grounds of obtaining such a warrant are that
the authorised officer believes on reasonable grounds that there is
evidence of the commission of an offence against the Principal
Act or the regulations in relation to pest animals or noxious
weeds. The warrant must state the purpose of the search, any
conditions of the warrant, the time of entry and the date the
warrant ceases to have effect.
New section 83A provides for an authorised officer to seize or
take a sample of a thing not mentioned in the warrant in certain
circumstances.
New section 83B sets out the procedure for announcing entry
when executing a search warrant.
6
New section 83C sets out the procedure for an authorised officer
to identify himself or herself when executing a search warrant
and for providing copies of the warrant.
Victorian Legislation and Parliamentary Documents
New section 83D provides an authorised officer or a member of
the police force with the power to stop, enter and search a vehicle
or boat which he or she reasonably believes has been used by
persons committing an offence against Division 3 of Part 8 of the
Principal Act. The authorised officer may exercise certain
powers when conducting a search under new section 83D.
New section 83E provides an authorised officer with the power to
stop and search a vehicle if the authorised officer believes on
reasonable grounds that new section 70A(1) (which relates to
removing certain vehicles from land to a road without ensuring
they are free from noxious weeds) has not been complied with.
Under new section 83E, an authorised officer can direct the
operator of the vehicle to ensure that the vehicle is free from
noxious weeds or the officer can take steps to ensure the vehicle
is free from noxious weeds.
New section 83F provides that an authorised officer who enters
land, a vehicle or a boat under the Principal Act can do so with
any required assistance.
New section 83G sets out requirements in relation to the return of
things seized under the Principal Act.
New section 83H provides for the Magistrates' Court to extend
the period for which an authorised officer may retain a thing
seized under the Principal Act.
New section 83I provides for the disposal of seized things in
certain circumstances.
New section 83J sets out requirements for authorised officers or
members of the police force to issue a receipt when taking
samples or seizing things.
New section 83K sets out the procedures to be followed for
authorised officers or members of the police force when taking
samples.
New section 83L allows an authorised officer to issue a retention
notice to a person holding a thing to retain that thing in his or her
possession if the officer believes on reasonable grounds that that
thing has been taken or held in contravention of a requirement
relating to pest animals in Division 3 of Part 8 of the Principal
Act or a corresponding law of another State, Territory or the
Commonwealth. The period of retention must not be more than
90 days but that period may be extended by the Secretary.
7
New section 83M provides for certain evidentiary matters in
respect of retention notices issued under new section 83L.
New section 83N requires an authorised officer to comply with
Victorian Legislation and Parliamentary Documents
any prescribed procedures when exercising a power under the
Principal Act.
Clause 30 amends section 84 of the Principal Act to make it an offence to
impersonate an authorised officer and to increase the penalty for
offences relating to authorised officers. It also excludes, from the
exception on the grounds of self-incrimination to the offence of
refusing to answer questions, the case of a request to a person to
state his or her name and address.
Clause 31 amends section 85(1)(a) of the Principal Act to require that
notices or documents required or authorised to be given or served
under the Act or regulations must be in writing in a "manner"
approved by the Secretary rather than in a "form" approved by
the Secretary.
Clause 32 amends section 90 of the Principal Act to require a certificate
issued by the Secretary in respect of land to include a copy of the
land management notice if a notice was in force in respect of the
land at the date specified in the certificate.
Clause 33 amends section 95(1)(c) of the Principal Act to ensure that
regulations can be made in relation to the maximum number of
established pest animals and the types of species of established
pest animals which can be kept in addition to the purposes for
which and the conditions under which established pest animals
can be kept, without the need for a permit under Division 3 of
Part 8 of the Principal Act.
Clause 34 substitutes clause 4 of Schedule 1 to the Principal Act to allow
the Minister instead of the Governor in Council to fix the
remuneration and allowances of certain members of bodies.
Clause 35 inserts new section 5(5) into the Extractive Industries
Development Act 1995 to exclude the operation of that Act in
respect of any "extractive activity" regulated under the Principal
Act. Although there is currently a Ministerial exemption in
relation to these activities, new section 5(5) will provide a more
transparent exemption.
8