ALERT DIGEST 7 of 1994

Part 6

6.1

This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Geoff Coleman with The Honourable Phil Gude.

6.2

This Bill establishes a modern framework for the integrated management and protection of natural resources and control of noxious weeds and pest animals. It replaces and repeals the Soil and Conservation and Land Utilisation Act 1958 and Vermin and Noxious Weeds Act 1958. More specifically, its purposes are:-

to set up a framework for the integrated management and protection of catchments;
to encourage community participation in the planned management of natural resources;
to set up a system of controls on noxious weed and pest animals;
to repeal and amend various Acts concerning catchment and land management.

6.3 Victorian Catchment and Land Protection Council

Clause 2 is the commencement clause. The Committee commends the forced commencement procedure.

Part 2 deals with the Catchment and Land Protection Advisory System. Clause 6 establishes the Victorian Catchment and Land Protection Advisory Council. Its 15 members are appointed by the Governor-in-Council on the recommendation of the Minister. There must be a representative from the Department of Conservation and Natural Resources and the Department of Agriculture.

The Committee makes no further comment.

6.4 _Ż Inappropriately delegates legislative power (section 4D(a)(iv) of the Parliamentary Committees Act 1968.

Clause 7 refers to Schedule 1. Schedule 1 sets out the membership and the procedures of the Council. Sub-clause 9 of the Schedule relates to the formation and functions of sub-committees. Sub-clause 9(2) provides that " the membership of a sub-committee is not restricted to members of the body that formed it." This means that members of the sub-committee may not necessarily be appointed by the Governor-in-Council on the recommendation of the Minister as they can be drawn from outside sources.

The Committee wrote to the Minister with some concerns in respect of Section 4D(a)(iv) of the Parliamentary Committees Act 1968. The Minister responded by way of a letter. The relevant extract is set out:-

"You have noted that under Schedule 1 provision is made in sub-clause 9 for the establishment of sub-committees that may be delegated any of the functions of the body. You have questioned whether this may inappropriately delegate legislative power.

These are important provisions for they will enable the bodies to draw widely from the regional community to involve appropriate people in assisting the bodies to undertake their functions. You will note that all these functions are essentially advisory in nature. Ultimate responsibility for decisions on the application of land management notices, land use conditions and the content of various plans, rests with the Minister or the Secretary for Conservation and Natural Resources. I therefore believe that the power of delegation is appropriate and is important for the operation of this legislation."

6.5

Clause 8 sets out the functions of the Council and the matters on which it must advise the Minister.

Clause 9 provides that the Council must submit an annual report to the Minister which must be laid before the Parliament within 7 sitting days of the Minister receiving the report.

The Committee makes no further comment.

6.6 _Ż Regional Catchment and Land Protection Boards

Clause 10 provides that the Governor-in-Council, on the recommendation of the Minister, may by Order, determine the areas of Victoria which are catchment and land protection regions and define their boundaries or vary the boundaries of existing regions.

Clause 11 provides that the Minister may establish a Regional Catchment and Land Protection Board for each region.

Clause 12 sets out the membership of the Board. It also provides that the Board must consist of not more than 15 members appointed by the Minister after consulting with the Minister administering the Meat Industry Act 1993. The Board must have a representative from the Department of Conservation and Natural Resources and the Department of Agriculture.

Clause 13 sets out the functions of the Board.

Clause 14 provides that the Board must submit an annual report to the Minister and the Council on or before 31 August each year.

The Committee makes no further comment.

6.7 _Ż Pest Animal Advisory Committee

Clause 15 establishes a Pest Animal Advisory Committee.

Clause 16 deals with the membership and procedure of the Committee. It provides that the Minister may determine the number of members of the Committee.

The Committee wrote to the Minister noting that the membership requirements for the Pest Animal Advisory Committee differ from the other advisory committees. The Minister responded by way of a letter. The relevant extract is set out: -

"You have noted that the membership requirements for the Pest Animal Advisory Committee in Clause 16 differs from that of other advisory committees established in the legislation by not specifying the maximum number of members nor specifying departmental representation. The nature of the Pest Animal Advisory Committee differs from that of other bodies by being specifically an expert committee to advise on the classification of pest animals. While I have no strong objection to specifying the maximum number of members and departmental representation. I would prefer the membership of the committee to be sufficiently flexible to allow it to be adaptable to changes in circumstances in the future."

Clause 17 sets out the functions of the Committee.

Clause 18 provides that the Committee must provide an annual report to the Minister on or before 31 August each year.

The Committee makes no further comment.

6.8 _Ż Duties of the Secretary and Land Owners

Part 3 relates to the duties of the Secretary and Land Owners. Clause 20 sets out the general duties of land owners. The land owner "must take all reasonable steps" to:-

avoid causing or contributing to land degradation;
conserve soil;
protect water resources;
eradicate regionally prohibited weeds in the region where they are banned;
prevent the growth and spread of regionally controlled weeds;
prevent the spread of and as far as possible eradicate, established pest animals;
take all reasonable steps to prevent the spread of regionally controlled weeds and established pest animals on a roadside that is Crown land and adjoins the land owner's land.

Certain exemptions are set out in sub-section (3).

Clause 21 sets out the additional duties of the Secretary, ie;: the body corporate established in Part 2 of the Conservation, Forests and Lands Act 1987, a body corporate called "the Director-General of Conservation, Forests and Land."

The Committee makes no further comment.

6.9 _Ż Catchment Planning -Regional Catchment Strategies

Part 4 relates to Regional Catchment Strategies. A regional catchment strategy is a document which is prepared and approved in accordance with the Division and which sets out how the catchments in a region are to be managed.

Clause 24 sets out the contents of the strategy.

Clause 25 provides that a Board that prepares a regional catchment strategy may recommend to a planning authority, amendments to the planning scheme to give effect to the strategy.

Clause 26 provides that a Minister or a Public Authority must have regard to any regional catchment strategy applying to the land.

The Committee makes no further comment.

6.10 _Ż Special Plan Areas

Clause 27 provides that the Board may recommend to the Minister that the land in its region should be declared a special area or that the declaration of a special area in its region should be revoked or amended. In its recommendation, the Board may classify the special area as a special water supply catchment area. The Minister may accept the Board's recommendation and recommend that the Governor-in-Council make an order under this section.

Clause 28 states that a special area plan, is a plan prepared and approved in accordance with the Division and Schedule 2, to deal with specific land management issues in a special area.

Clause 30 sets out the contents of the plan.

Clause 32 provides that the Minister or a Public Authority must have regard to any special area plan applying to the land but is not obliged to implement a special area plan.

The Committee makes no further comment.

6.11 _Ż Land Use Conditions

Clause 33 provides that the Secretary may serve on a land owner a document setting out land use conditions applying to the land. Pursuant to sub-section (2) of clause 33, the land use conditions must-

"(a) refer to the special area plan that permits the imposition of the land use conditions; and

(b) include the following information from that plan -

(i) a general description of the properties to which the land use conditions will apply; and

(ii) an estimate of the total cost of compliance with all the land use conditions; and

(iii) the method of apportioning that part of the cost to be borne by land owners between the properties to which the conditions will apply; and

(c) describe the land of the land owner to which the conditions will apply; and

(d) state any amount (determined in accordance with the plan) for which h the land owner is liable."

Review of land use conditions by the Administrative Appeals Tribunal is set out in Clause 48.

Clause 35 makes it an offence not to comply with a land use condition and sets out the penalty for non-compliance.

Clause 36 provides that the Secretary may revoke a land use condition at the request of the land owner or on the Secretary's own initiative.

The Committee makes no further comment.

6.12 _Ż Land Management Notices

Part 5 deals with land management notices. Clause 37 sets out when a land management notice may be issued. Clause 38 sets out the contents of the notice. The notice may prohibit or regulate land use or land management practices, require specified action or contain any other provision that the Secretary considers necessary.

Clause 38(4) states that a land management notice may apply to land owned by different owners only if it deals solely with the control of noxious weeds or pest animals or both.

Clause 39 sets out the requirements before the service of a notice. It provides that before serving a land management notice applying to land in common ownership, the Secretary must attempt to reach an agreement with the land owners on the carrying out of a program to deal with the issues which would otherwise be dealt with the notice. The time set out for reaching the agreement is " a reasonable time". Before serving the land management notice, the Secretary must get the consent of the Board of the region in which the notice applies. The Secretary does not need the consent of the Board if the land management notice only deals with the control of noxious weeds or pest animals.

Clause 41 makes it an offence to disobey the notice.

Clause 43 provides that an interim land management notice may be served if the Secretary considers that there is an immediate and serious threat of land degradation that could be prevented or minimised by the taking of appropriate action. The land management notice expires on the 30th day after its stated date of operation. The Secretary must give written advice to the Board of the region in which the notice applies, within 14 days after serving the interim land management notice.

Review of land management notices by the Administrative Appeals Tribunal is set out in Clause 48.

The Committee makes no further comment.

6.13 _Ż Review of land use conditions and land management notices - review by the Administrative Appeals Tribunal

Clause 48 provides for the review of the decision to either serve a land management notice or a land use condition by the Administrative Appeals Tribunal. The application for review must be made within 30 days after the date the applicant was served with the land management notice or land use condition.

The Committee wrote to the Minister to clarify the review procedures. The Minister responded by way of a letter. The relevant extract is set out:-

"You have questioned whether the application of a land management notice dealing only with the control of noxious weeds or pest animals should be subject to review. Review will be available through the normal administrative law but extra review rights through appeal to the Administrative Appeal Tribunal have not been provided. This continues the existing review rights under the Vermin and Noxious Weeds Act 1958 and is considered appropriate because the corrective action to control pests is generally well understood and readily applied. Several hundred notices relating to pest control are issued each year."

6.14 _Ż Extractive activities

Part 7 deals with extractive activities. "Extractive activities" means the extraction for sale or removal of soil, sand, gravel or stone or other similar material to a depth of up to 2 metres below the natural surface, if the total of the areas of the surface broken up by the extraction or removal is more than 2,000 square metres.

Clause 51 makes it an offence to carry out unauthorised extractive activity and sets out the penalties.

Clause 52 provides that a site manager may apply to the Secretary for an authority to carry out extractive activity or a class of extractive activity.

The Secretary has a complete discretion to either issue an authority or not, or issue the authority subject to certain conditions.

The Committee wrote to the Minister to clarify the review procedures:-

"You note that the Secretary has authority to grant permission for shallow extraction of soil, sand and gravel and attach conditions to that permission. No extra review right has been provided beyond that normally available through administrative law. This continues the current arrangements under the Soil Conservation and Land Utilization Act 1958 and reflects the view that under this legislation extractive activities are a privilege rather than a right."

Clause 54 provides that if the Secretary may require a bond or security to be lodged. If the Secretary is satisfied that the holder of an authority is in breach of a condition of the authority, the Secretary may cause the work to be done and recover the cost of the work. If the bond or security is not enough to meet the cost of the work to be done, or no bond or security has been lodged, the Secretary may cause the work to be done and recover the cost of the work or the cost becomes a debt due to the Secretary.

Clause 56 provides that the Secretary may suspend or revoke the authority. The Secretary must serve the notice, allow the holder of the Authority a reasonable opportunity to make written or oral submissions and consider any submissions made.

6.15 _Ż Noxious Weeds and Pest Animals

Part 8 relates to the classification of pests and animals. Pest animals and noxious weeds are classified on the recommendation of the Minister and made by Order of the Governor-in-Council and published in the Government Gazette.

Clauses 60, 61 and 62 set out the definitions of state prohibited weeds, regionally prohibited weeds and regionally controlled weeds.

Clauses 63, 64 and 65 set out the definitions of restricted weeds, prohibited pest animals and controlled pest animals.

Clause 69 provides that before making a recommendation relating to an animal or a weed, the Minister must obtain advice from the Pest Animal Advisory Committee and the Council and the Board of the region in which the declaration applies.

The Committee makes no further comment.

6.16 _Ż General control of noxious weeds

Clauses 70 - 74 relate to the general control of noxious weeds and pest animals. Clause 70 provides that the Secretary may give directions to the land owner and the land owner must bear the cost of complying with that direction. Clause 71 provides that a person must not do certain things in relation to noxious weeds or machinery without a permit from the Secretary. Sub-section (4) provides that the Secretary may grant a permit which is subject to conditions or an annual fee. The permit may be revoked at any time for a breach of the conditions.

Clause 72 provides that the Secretary may by instrument served on the person, order the person to remove the noxious weed from any infested goods or destroy the noxious weed. The person served with an instrument must comply with it. The Secretary may recover the cost of removing or destroying noxious weeds from a person who has contravened section 71.

Clause 73 provides that the Secretary may by instrument served on the land owner, give directions to the land owner to control and eradicate established pest animals. The land owner must bear the cost of complying with a direction served on the land owner under the section.

Clause 74 makes it an offence to take pest animals into areas affected by chemicals.

Clause 75 makes it an offence to import, sell or keep pest animals and sets out the penalties.

Clause 76 provides that a person may keep a pest animal with a permit.

Clause 77 provides that the Secretary may grant or refuse the application.

Clause 78 provides that the Secretary may revoke the permit if the permit holder has contravened the Wildlife Act 1975.. The Secretary must give notice of the proposed revocation to the permit holder. The permit holder may make written or oral submissions within 28 days after the date of the service of the notice. The Secretary must consider any submissions made by the permit holder.

The Committee wrote to the Minister to clarify the review procedures. The Minister responded by way of a letter. The relevant extract is set out:-

"You have noted that the Secretary's decisions relating to the control of noxious weeds and pest animals are not subject to special review provisions beyond those normally available in administrative law. This continues the arrangements in the current Vermin and Noxious Weeds Act 1958. The granting of permits to undertake such activities as selling noxious weeds or keeping pest animals is viewed as a privilege rather than a right and therefore special appeal provisions are not seen as appropriate."

6.17 _Ż General provisions

Clause 79 gives the Secretary (the Secretary is the body corporate established under Part 2 of the Conservation, Forests and Lands Act 1987 ie: a body corporate called " the Director-General of Conservation, Forests and Lands) general powers to do anything necessary to carry out a land management notice, if the notice has not been complied with within the time for compliance stated in the notice. The Secretary may recover as a debt in a court of competent jurisdiction any expenses necessarily incurred in carrying out any work.

The Committee wrote to the Minister to clarify the general powers of the Secretary. The Minister responded by way of a letter. The relevant extract is set out:-

"You have noted that Clause 79 gives the Secretary general powers to do anything necessary to carry out a land management notice, if the notice has not been complied with. The Secretary may recover as a debt in court of competent jurisdiction any expenses necessarily incurred in carrying out any work. The landowner can challenge the validity of the costs incurred in court on the basis that they were not necessary to carry out the requirements of the notice."

Clause 80 deals with the powers of inspection. The powers of inspection set out in the Bill are extremely broad. Sub-section (3)(c) of clause 80 provides that an authorised officer may, if he or she considers it necessary for a purpose set out in sub-section (1)(a) to (h), " inspect, or take copies of or extracts from, documents." Sub-section (3)(e) provides that an authorised officer may direct the land owner to destroy a pest animal or noxious weed. Sub-section (3)(f) provides that an authorised officer may seize a pest animal or noxious weed an impound it , destroy it , sell it or otherwise dispose of it. These provisions, (3)(c)(e) and (f) are subject to clause 82 -entry with notice.

Clause 81 deals with emergency entry. Sub-section (3) provides that an authorised officer cannot enter land occupied as a residence unless the occupier consents.

Clause 82 deals with entry with notice. An authorised officer must give 24 hours written notice to the occupier. If the occupier does not consent, an authorised officer cannot enter the land unless he or she has reason to suspect the commission of an offence against the Act or the Regulations. An authorised officer cannot under this section exercise a power in section 80(3)(c), (e), or (f), ie: inspection or taking copies of documents, direct the land owner to destroy a pest animal or noxious weed or seize a pest animal or noxious weed and impound it or destroy it or sell it.

Clause 83 deals with entry with a warrant which must be executed according to the provisions of the Magistrates" Court Act 1989.

Clause 85 sets out the form of notice which must be given to the land owner.

6.18 _Ż Simplification of proof

Clauses 86 -90 relate to the simplification of proof.

Clause 91 provides that the Secretary must keep a Register of land use conditions and land management notices.

6.19 _Ż Regulations

Clause 95 gives the Governor-in-Council the power to make regulations. Clause 10.1(2) provides that the Governor-in-Council may make regulations which "may confer powers or impose duties on any person".

"Clause 95(2) provides that the Governor-in-Council may make regulations which "may confer powers or impose duties on any person". You have noted that this is a broad delegation of legislative power. The application of such regulations is limited to the areas defined in Clause 95(1). It is not possible to be more specific. However, the appropriateness of each regulation would be addressed as part of the process of regulatory impact statement."

ALERT DIGEST 7