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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 68
As laid on the table and read a first time, 18 February
2004
South Australia
Natural
Resources Management Bill 2004
A Bill For
An
Act to promote sustainable and integrated management of the State's natural
resources; to make provision for the protection of the State's natural
resources; to make amendments to the Crown Lands Act 1929, the Dog
and Cat Management Act 1995, the Dog Fence Act 1946, the Environment
Protection Act 1993, the Ground Water (Qualco-Sunlands)
Control Act 2000, the Local Government Act 1934, the Mining
Act 1971, the National Parks and Wildlife Act 1972, the Native
Vegetation Act 1991, the Parliamentary Committees Act 1991, the Pastoral
Land Management and Conservation Act 1989, the Petroleum Act 2000,
the River Murray Act 2003, the South Eastern Water Conservation and
Drainage Act 1992 and the Subordinate Legislation Act 1978;
to repeal the Animal and Plant Control (Agricultural Protection and Other
Purposes) Act 1986, the Soil Conservation and Land Care Act 1989 and
the Water Resources Act 1997; and for other purposes.
Contents
Chapter 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Interaction with other Acts
5 Territorial and extra-territorial
operation of Act
6 Act binds Crown
Chapter 2—Objects of Act and
general statutory duties
Part 1—Objects
7 Objects
8 Administration of Act to achieve
objects
Part 2—General statutory
duties
9 General statutory duties
Chapter 3—Administration
Part 1—The Minister
10 Functions of Minister
11 General powers
12 Powers of delegation
Part 2—The NRM Council
Division 1—Establishment of
NRM Council
13 Establishment of NRM Council
Division 2—The Council's
membership
14 Composition of NRM Council
15 Conditions of membership
16 Allowances and expenses
17 Validity of acts
Division 3—Functions of NRM
Council
18 Functions of NRM Council
19 Committees
20 Power of delegation
Division 4—Related matters
21 Annual report
22 Use of facilities
Part 3—NRM regions and boards
Division 1—Establishment of
regions
23 Establishment of regions
Division 2—Establishment of
regional NRM boards
24 Establishment of boards
25 Corporate nature
Division 3—Membership
26 Composition of boards
27 Conditions of membership
28 Allowances and expenses
29 Validity of acts
Division 4—Functions of boards
30 Functions of boards
Division 5—Powers of boards
31 General powers
32 Power to acquire land
33 Special powers to carry out works
34 Entry and occupation of land
35 Special vesting of infrastructure
Division 6—Staff
36 Staff
Division 7—Committees and
delegations
37 Committees
38 Power of delegation
Division 8—Accounts, audit and
reports
39 Accounts and audit
40 Annual reports
41 Specific reports
Division 9—Appointment of
administrator
42 Appointment of administrator
Division 10—Related matters
43 Use of facilities
44 Board's power to provide financial
assistance etc
45 Assignment of responsibility for
infrastructure to another person or body
46 Appointment of body to act as a board
Part 4—NRM groups
Division 1—Establishment of
areas
47 Establishment of areas
Division 2—Establishment of
NRM groups
48 Establishment of groups
49 Corporate nature and responsibility at
regional level
Division 3—Membership
50 Composition of NRM groups
51 Conditions of membership
52 Allowances and expenses
53 Validity of acts
Division 4—Functions of NRM
groups
54 Functions of groups
Division 5—Powers of NRM
groups
55 General powers
Division 6—Committees and
delegations
56 Committees
57 Power of delegation
Division 7—Accounts, audit and
reports
58 Accounts and audit
59 Annual reports
60 Specific reports
Division 8—Related matters
61 Staff
62 Use of facilities
63 Appointment of body to act as group
64 Regional NRM board may act as an NRM
group
Part 5—The Chief Officer
65 Chief Officer
66 Functions of Chief Officer
67 Power of delegation
Part 6—Authorised officers
68 State authorised officers
69 Regional authorised officers
70 Identity cards
71 Powers of authorised officers
72 Provisions relating to seizure
73 Hindering etc persons engaged in the
administration of this Act
74 Self-incrimination
75 Offences by authorised officers
Chapter 4—NRM plans
Part 1—State NRM Plan
76 State NRM Plan
Part 2—Regional plans
Division 1—Regional NRM plans
77 Regional NRM plans
Division 2—Water allocation
plans
78 Preparation of water allocation plans
Division 3—Preparation and
maintenance of plans
79 Application of Division
80 Concept statement
81 Preparation of plans and consultation
82 Submission of plan to Minister
83 Review and amendment of plans
84 Time for implementation of plans
85 Availability of copies of plans etc
86 Time for preparation and review of
plans
Division 4—Related matters
87 Application of Division
88 Validity of plans
89 Promotion of River Murray legislation
90 Associated Ministerial consents
91 Amendment of plans without formal
procedures
92 Plans may confer discretionary powers
93 Effect of declaration of invalidity
Chapter 5—Financial provisions
Part 1—NRM levies
Division 1—Levies in respect
of land
94 Contributions by constituent councils
95 Payment of contributions by councils
96 Funds may be expended in subsequent
years
97 Imposition of levy by councils
98 Costs of councils
99 Outside council areas
100 Contributions towards work of NRM groups
101 Application of levy
Division 2—Levies in respect
of water
102 Interpretation
103 Declaration of levies
104 Provisions applying to water (holding)
allocations in declared water resources
105 Special purpose water levy
106 Liability for levy
107 Notice of liability for levy
108 Determination of quantity of water taken
109 Cancellation etc of licence or permit
for non-payment of levy
110 Costs associated with collection
Division 3—Special provisions
111 Application of Division
112 Interest
113 Discounting levies
114 Levy first charge on land
115 Sale of land for non-payment of a levy
Division 4—Related matters
116 Refund of levies
117 Declaration of penalty in relation to
the unauthorised or unlawful taking or use of water
118 Appropriation of levies, penalties and
interest
Part 2—Statutory funds
Division 1—The Natural
Resources Management Fund
119 The Natural Resources Management Fund
120 Accounts
121 Audit
Division 2—Regional NRM board
funds
122 Regional NRM board funds
Chapter 6—Management and
protection of land
123 Interpretation
124 Special provisions relating to land
125 Requirement to implement action plan
Chapter 7—Management and
protection of water resources
Part 1—General rights in
relation to water
126 Right to take water subject to certain
requirements
127 Declaration of prescribed water
resources
Part 2—Control of activities
affecting water
Division 1—Determination of
relevant authority
128 Determination of relevant authority
Division 2—Control of
activities
129 Water affecting activities
130 Certain uses of water authorised
131 Activities not requiring a permit
132 Notice to rectify unauthorised activity
133 Notice to maintain watercourse or lake
134 Restrictions in case of inadequate
supply or overuse of water
135 Specific duty with respect to damage to
a watercourse or lake
136 Minister may direct removal of dam etc
Division 3—Permits
137 Permits
138 Requirement for notice of certain
applications
139 Refusal of permit to drill well
140 Availability of copies of permits etc
Division 4—Provisions relating
to wells
141 Well drillers' licences
142 The Water Well Drilling Committee
143 Renewal of licence
144 Non-application of certain provisions
145 Defences
146 Obligation to maintain well
147 Requirement for remedial or other work
Part 3—Licensing and
allocation of water
Division 1—Licensing
148 Licences
149 Variation of water licences
150 Surrender of licence
151 Availability of copies of licences etc
Division 2—Allocation of water
152 Method of fixing water (taking)
allocations
153 Allocation of water
154 Basis of decisions as to allocation
155 Water (holding) allocations
156 Conversion of water (taking) licence
157 Allocation on declaration of prescribed
water resource
158 Reduction of water allocations
Division 3—Transfer of
licences and water allocations
159 Transfer
160 Application for transfer of licence or
allocation
161 Requirement for notice of application
for certain transfers
162 Basis of decision as to transfer
163 Endorsement and record of dealings
Division 4—Breach of licence
164 Consequences of breach of licence etc
165 Effect of cancellation of licence on
water allocation
Division 5—Schemes to promote
the transfer or surrender of allocations
166 Schemes to promote the transfer or
surrender of allocations
Part 4—Reservation of excess
water by Minister
167 Interpretation
168 Reservation of excess water in a water
resource
169 Allocation of reserved water
170 Public notice of allocation of reserved
water
Part 5—Water conservation
measures
171 Water conservation measures
Part 6—Related matters
172 Law governing decisions under this
Chapter
173 Effect of water use on ecosystems
174 By-laws
175 Representations by SA Water
176 Water recovery and other rights subject
to board's functions and powers
Chapter 8—Control of animals
and plants
Part 1—Preliminary
177 Preliminary
Part 2—Control provisions
Division 1—Specific controls
178 Movement of animals or plants
179 Possession of animals or plants
180 Sale of animals or plants, or produce or
goods carrying plants
181 Sale of contaminated items
182 Offence to release animals or plants
183 Notification of presence of animals or
plants
184 Requirement to control certain animals
or plants
185 Owner of land to take action to destroy
or control animals or plants
186 Requirement to implement action plan
187 Native animals
188 NRM authorities may recover certain
costs from owners of land adjoining road reserves
189 Destruction or control of animals
outside the dog fence by poison and traps
190 Ability of Minister to control or
quarantine any animal or plant
Division 2—Permits
191 Permits
Division 3—Related matters
192 Animal-proof fences
193 Offence to damage certain fences
194 Offence to leave gates open
195 Protection of certain vegetation and
habitats
Chapter 9—Civil remedies
Part 1—Orders issued by NRM
authorities
Division 1—Orders
196 Protection orders
197 Action on non-compliance with a
protection order
198 Reparation orders
199 Action on non-compliance with a
reparation order
200 Reparation authorisations
201 Related matter
Division 2—Registration of
orders and effect of charges
202 Registration
203 Effect of charge
Part 2—Orders made by ERD
Court
204 Orders made by ERD Court
Chapter 10—Appeals
205 Right of appeal
206 Operation and implementation of
decisions or orders subject to appeal
207 Powers of Court on determination of
appeals
Chapter 11—Management
agreements
208 Management agreements
Chapter 12—Miscellaneous
Part 1—Avoidance of
duplication of procedures etc
209 Avoidance of duplication of procedures
etc
Part 2—Other matters
210 Native title
211 Service of notices or other documents
212 Money due to Minister
213 Compulsory acquisition of land
214 Compensation
215 Immunity from liability
216 Vicarious liability
217 False or misleading information
218 Interference with works or other
property
219 Criminal jurisdiction of Court
220 Proceedings for offences
221 General defence
222 Offences by bodies corporate
223 Additional orders on conviction
224 Continuing offence
225 Constitution of Environment, Resources
and Development Court
226 Evidentiary
227 Determination of costs and expenses
228 Minister may apply assumptions and other
information
229 NRM Register
230 Confidentiality
231 Annual report
232 Damage caused by non-compliance with a
notice etc
233 Recovery of technical costs associated
with contraventions
234 Incorporation of codes and standards
235 Exemption from Act
236 Regulations
237 Review of Act by Minister
Schedule 1—Provisions relating to NRM Council, regional NRM boards
and NRM groups
Schedule 2—Classes of wells in relation to which a permit is not
required
Schedule 3—Regulations
Schedule 4—Related amendments,
repeals and transitional provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Natural Resources Management
Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention
appears—
animal means a live vertebrate or invertebrate animal and includes the
eggs or semen of such an animal, but does not include any animal of a class
excluded from the ambit of this definition by the regulations;
animal-proof fence means a fence that complies with the prescribed
requirements for an animal-proof fence;
annual value means annual value as defined in the Valuation of Land
Act 1971;
approved account means an account designated by the Minister as an approved
account for the purposes of this Act, or a specified provision of this Act;
authorised officer means a person appointed to be a State authorised officer
or a regional authorised officer underChapter 3 Part
6;
biological diversity means the variety of life forms represented by plants,
animals and other organisms and micro-organisms, the genes that they contain,
and the ecosystems and ecosystem processes of which they form a part;
business day means any day except—
(a) a
Saturday, Sunday or public holiday; or
(b) a
day which falls between 25 December and 1 January in the following year;
capital value means capital value as defined in the Valuation of Land
Act 1971;
channel includes—
(a) a
drain, gutter or pipe;
(b) part
of a channel;
Chief Officer means the Chief Officer under Chapter 3 Part 5 (and includes a
person acting in that office from time to time);
constituent council means—
(a) in
relation to a regional NRM board, or the region of a regional NRM board, a
council whose area, or part of whose area, comprises or is included in the
region of the regional NRM board;
(b) in
relation to an NRM group, or the area of an NRM group, a council whose area, or
part of whose area, comprises or is included in the area of the NRM group;
construct includes erect, alter, repair or excavate;
control means—
(a) in
relation to a particular class of animals, any of the following:
(i) destroy the animals and their warrens,
burrows, nests or harbours (whether occupied or not);
(ii) reduce
the extent to which land is inhabited or subject to infestation by the animals;
(iii) undertake
any other prescribed action,
as far as is reasonably achievable;
(b) in
relation to a particular class of plants, any of the following:
(i) destroy the plants;
(ii) reduce
and inhibit the propagation of the plants;
(iii) prevent
the spread of the plants;
(iv) undertake
any other prescribed action,
as far as is reasonably achievable;
council means a council within the meaning of the Local Government
Act 1999;
council subsidiary means a subsidiary established under Schedule 2 of the Local
Government Act 1999;
CPI
means the Consumer Price Index (All groups index for Adelaide);
Department means the department of the Minister to whom the administration
of this Act has been committed prescribed by the regulations for the purposes
of this definition;
dingo includes an animal that is a cross of a dingo;
dog fence means the fence established under the Dog Fence Act 1946;
domestic activity means an activity undertaken for a domestic purpose;
domestic purpose in relation to the taking of water does
not include—
(a) taking
water for the purpose of watering or irrigating more than 0.4 of a hectare of
land; or
(b) taking
water to be used in carrying on a business (except for the personal use of
persons employed in the business);
domestic wastewater means—
(a) water
used in the disposal of human waste; and
(b) water
used for personal washing; and
(c) water
used for washing clothes or dishes; and
(d) water
used in a swimming pool;
to drill in relation to a well means to drill the well or to excavate the
well in any other manner and includes to deepen or widen an existing well;
ecosystem means a dynamic complex of plant, animal and micro-organism
communities and their non-living environment interacting as a functional unit;
effluent means domestic wastewater or industrial wastewater;
ERD Court means the Environment, Resources and Development Court
established under the Environment, Resources and Development Court
Act 1993;
estuary means a partially enclosed coastal body of water that is
permanently, periodically, intermittently or occasionally open to the sea
within which there is a measurable variation in salinity due to the mixture of
seawater with water derived from or under the land;
floodplain means any area of land adjacent to a
watercourse, lake or estuary that is periodically, intermittently or
occasionally inundated with water and includes any other area designated as a
floodplain—
(a) by
the regulations; or
(b) by
an NRM plan; or
(c) by
a Development Plan under the Development Act 1993;
general rate means a general rate under section 152 of the Local Government
Act 1999;
general statutory duty means the duty under Chapter 2 Part 2;
industrial wastewater means water (not being domestic wastewater) that has been
used in the course of carrying on a business (including water used in the
watering or irrigation of plants) that has been allowed to run to waste or has
been disposed of or has been collected for disposal;
infrastructure includes—
(a) artificial
lakes;
(b) dams
or reservoirs;
(c) embankments,
walls, channels or other works or earthworks;
(d) bridges
and culverts;
(e) buildings
or structures;
(f) roads;
(g) pipes,
machinery or other plant or equipment;
(h) any
device;
(i) any item or thing used in connection with—
(i) testing, monitoring, protecting, enhancing
or re-establishing any natural resource, or any aspect of a natural resource;
(ii) any
other program or initiative associated with the management of a natural
resource;
(j) other
items brought within the ambit of this definition by the regulations;
intensive farming means a method of keeping animals in the course of
carrying on the business of primary production in which the animals are usually
confined to a small space or area and usually fed by hand or by a mechanical means;
Interstate Water Entitlements Transfer Scheme means a scheme for the transfer of water
entitlements between States under the Agreement approved under the Murray-Darling
Basin Act 1993;
keep in captivity—an animal is kept in captivity if it is held in a building
or enclosure with security measures designed to ensure that the animal cannot
escape (other than in circumstances that cannot be reasonably foreseen and
guarded against);
lake means a natural lake, pond, lagoon, wetland or spring
(whether modified or not) and includes—
(a) part
of a lake; or
(b) a
body of water designated as a lake—
(i) by the regulations; or
(ii) by
an NRM plan; or
(iii) by
a Development Plan under the Development Act 1993;
land means, according to the context—
(a) land
as a physical entity, including land under water; or
(b) any
legal estate or interest in, or right in respect of, land,
and includes any building or structure fixed to land;
LGA
means the Local Government Association of South Australia;
licensed well driller means a person who holds a licence under Chapter 7 to
drill wells;
management agreement means an agreement under Chapter 11;
Mining Act means any of the following:
(a) the
Mining Act 1971, the Opal Mining Act 1995, the Petroleum
Act 2000 or the Petroleum (Submerged Lands) Act 1982;
(b) the
Cooper Basin (Ratification) Act 1975, the Roxby
Downs (Indenture Ratification) Act 1982 or the Stony Point (Liquids
Project) Ratification Act 1981;
(c) any
other Act relating to the production, recovery, management, conveyance or
delivery of minerals brought within the ambit of this definition by the
regulations;
Mount Lofty Ranges Watershed means the area prescribed by regulation
for the purposes of this definition;
Murray-Darling Basin has the same meaning as in the Murray-Darling Basin
Act 1993;
native animal means a protected animal within the meaning of the National
Parks and Wildlife Act 1972 and any species included in Schedule 10 of
that Act, but does not include a dingo or any other animal of a class excluded
from the ambit of this definition by the regulations;
native vegetation has the same meaning as in the Native Vegetation
Act 1991;
natural resources includes—
(a) soil;
(b) water
resources;
(c) geological
features and landscapes;
(d) native
vegetation, native animals and other native organisms;
(e) ecosystems;
(f) other
aspects of the environment brought within the ambit of this definition by the
regulations;
NRM authority means a regional NRM board or an NRM group;
NRM Council means the Natural Resources Management Council established under
Chapter 3 Part 2;
NRM Fund means the Natural Resources Management Fund established under
Chapter 5 Part 2 Division 1;
NRM group means a body established under Chapter 3 Part 4 and includes a
body appointed under that Part to be an NRM group under this Act;
NRM plan means a plan under Chapter 4;
NRM region or region means a Natural Resources Management
Region established under Chapter 3 Part 3 Division 1;
NRM Register means the register established under section 229;
NRM water levy means—
(a) a
water levy; or
(b) a
special purpose water levy;
occupier of land means a person who has, or is entitled to, possession or
control of the land (other than a mortgagee in possession unless the mortgagee
has assumed active management of the land), or who is entitled to use the land
as the holder of native title in the land;
OC-NRM levy means a levy declared under section 99;
owner of land means—
(a) if
the land is unalienated from the Crown—the Crown; or
(b) if
the land is alienated from the Crown by grant in fee simple—the owner (at law
or in equity) of the estate in fee simple; or
(c) if
the land is held from the Crown by lease or licence—the lessee or licensee, or
a person who has entered into an agreement to acquire the interest of the
lessee or licensee; or
(d) if
the land is held from the Crown under an agreement to purchase—the person who
has the right to purchase; or
(e) a
person who holds native title in the land; or
(f) a
person who has arrogated to himself or herself (lawfully or unlawfully) the
rights of an owner of the land,
and includes an occupier of the land and any other person of a
prescribed class included within the ambit of this definition by the regulations;
pastoral land means land of the Crown that is subject to a pastoral lease;
plant means vegetation of any species and includes the seeds and any
part of any such vegetation, or any other form of plant material, but does not
include any vegetation or material excluded from the ambit of this definition
by the regulations;
prescribed lake means a lake declared to be a prescribed lake under
section 127;
prescribed watercourse means a watercourse declared to be a
prescribed watercourse under section 127;
prescribed water resource includes underground water to which
access is obtained by prescribed wells;
prescribed well means a well declared to be a prescribed well under section 127;
private land means land that is not—
(a) dedicated
land within the meaning of the Crown Lands Act 1929; or
(b) unalienated land of the Crown; or
(c) vested
in or under the care, control or management of an agency or instrumentality of
the Crown; or
(d) vested
in or under the care, control or management of a council;
public authority means—
(a) a
Minister; or
(b) an
agency or instrumentality of the Crown; or
(c) a
council or council subsidiary;
record means—
(a) a
documentary record; or
(b) a
record made by an electronic, electro-magnetic, photographic or optical
process; or
(c) any
other kind of record;
regional authorised officer means a person appointed as a regional
authorised officer under Chapter 3 Part 6;
regional local government association means a regional association established
by the local government sector (whether under section 43 of the Local
Government Act 1999 or under the Associations Incorporation
Act 1985, or in some other manner recognised by the regulations for
the purposes of this definition);
regional NRM board means a body established under Chapter 3 Part 3 and
includes a body appointed under that Part to be a regional NRM board under this
Act;
regional NRM levy means a levy imposed by a council under section 97;
regional NRM plan means a plan prepared by a regional NRM board under
Chapter 4 Part 2;
repealed Act means an Act repealed under Schedule 4 Part 17;
residential premises means a building occupied as a place of residence and
includes the curtilage of such a building;
River Murray has the same meaning as in the River Murray Act 2003;
River Murray Protection Area means a River Murray Protection Area
under the River Murray Act 2003;
road reserve means land set aside for the purposes of a public road, whether
or not it is being used for that purpose;
SA Water means the South Australian Water Corporation;
sell includes—
(a) barter,
offer or attempt to sell;
(b) receive
for sale;
(c) have
in possession for sale;
(d) cause
or permit to be sold or offered for sale;
(e) send,
forward or deliver for sale;
(f) dispose
of by any method for valuable consideration;
(g) dispose
of to an agent for sale on consignment;
(h) sell
for the purposes of resale;
site value means site value as defined in the Valuation of Land
Act 1971;
special purpose water levy means a levy declared under section 105;
spouse includes putative spouse (whether or not a declaration of the
relationship has been made under the Family Relationships Act 1975);
State includes any part of the sea—
(a) that
is within the limits of the State; or
(b) that
is from time to time included in the coastal waters of the State by virtue of
the Coastal Waters (State Powers) Act 1980 of the Commonwealth;
State authorised officer means a person appointed as a State
authorised officer under Chapter 3 Part 6;
State NRM Plan means the plan prepared by the NRM Council under Chapter 4 Part
1;
surface water means—
(a) water
flowing over land (except in a watercourse)—
(i) after having fallen as rain or hail or
having precipitated in any other manner; or
(ii) after
rising to the surface naturally from underground;
(b) water
of the kind referred to in paragraph (a) that has been collected in a dam
or reservoir;
surface water prescribed area means a part of the State declared to be
a surface water prescribed area under section 127;
to take water from a water resource includes—
(a) to
take water by pumping or syphoning the water;
(b) to
stop, impede or divert the flow of water over land (whether in a watercourse or
not) for the purpose of collecting the water;
(c) to
divert the flow of water in a watercourse from the watercourse;
(d) to
release water from a lake;
(e) to
permit water to flow under natural pressure from a well;
(f) to
permit stock to drink from a watercourse, a natural or artificial lake, a dam
or reservoir;
(g) to
undertake or permit any other prescribed activity;
(h) to
cause, permit or suffer any activity referred to in a preceding paragraph;
underground water means—
(a) water
occurring naturally below ground level;
(b) water
pumped, diverted or released into a well for storage underground;
vehicle includes any—
(a) vessel
or craft;
(b) plant
or equipment designed to be moved or operated by a driver;
water allocation—
(a) in
respect of a water licence means the water (taking) allocation or the water
(holding) allocation endorsed on the licence;
(b) in
respect of water taken pursuant to an authorisation under section 130
means the maximum quantity of water that can be taken and used pursuant to the
authorisation;
water allocation plan means a water allocation plan prepared by a regional NRM
board under Chapter 4 Part 2;
watercourse means a river, creek or other natural
watercourse (whether modified or not) in which water is contained or flows
whether permanently, intermittently or occasionally and includes—
(a) a
dam or reservoir that collects water flowing in a watercourse;
(b) a
lake through which water flows;
(c) a
channel (but not a channel declared by regulation to be excluded from the ambit
of this definition) into which the water of a watercourse has been diverted;
(d) part
of a watercourse;
(e) an
estuary through which water flows;
(f) any
other natural resource, or class of natural resource, designated as a
watercourse for the purposes of this Act—
(i) by the regulations; or
(ii) by
an NRM plan;
water (holding) allocation in respect of a water licence means the
quantity of water that the licensee is entitled to request that the Minister
convert to a water (taking) allocation under Chapter 7 Part 3 Division 2;
water levy means a levy declared under section 103;
water licence means a licence granted under Chapter 7 Part 3 authorising the
holder (subject to the taking of any step or steps required by this Act) to
take (or to hold) water from a watercourse, lake or well or to take (or to
hold) surface water from a surface water prescribed area and includes a licence
granted under that Part endorsed with a water (holding) allocation;
water resource means a watercourse or lake, surface water, underground water,
stormwater and effluent;
water (taking) allocation in respect of a water licence means the
quantity of water that the licensee is entitled to take and use pursuant to the
licence;
well means—
(a) an
opening in the ground excavated for the purpose of obtaining access to underground
water;
(b) an
opening in the ground excavated for some other purpose but that gives access to
underground water;
(c) a
natural opening in the ground that gives access to underground water;
wetland means an area that comprises land that is
permanently, periodically, intermittently or occasionally inundated with water
(whether through a natural or artificial process) where the water may be static
or flowing and may range from fresh water to saline water and where the
inundation with water influences the biota or ecological processes (whether
permanently or from time to time) and includes any other area designated as a
wetland—
(a) by
the regulations; or
(b) by
an NRM plan; or
(c) by
a Development Plan under the Development Act 1993,
but does not include—
(d) a
dam or reservoir that has been constructed by a person wholly or predominantly
for the provision of water for primary production or human consumption; or
(e) an
area within an estuary or within any part of the sea; or
(f) an
area excluded from the ambit of this definition by the regulations.
(2) For the purposes of this Act—
(a) a
reference to land in the context of the physical entity includes all aspects of
land, including the soil, organisms and other components and ecosystems that
contribute to the physical state and environmental, social and economic value
of land;
(b) a
reference to a water resource includes all aspects of a water resource,
including the water, organisms and other components and ecosystems that
contribute to the physical state and environmental value of a water resource.
(3) For the purposes of this Act—
(a) a
reference to a watercourse is a reference to either—
(i) the bed and banks of the watercourse (as
they may exist from time to time); or
(A) any
ecosystem processes or biodiversity associated with an estuary;
(B) estuarine
habitats adjacent to an estuary.
(4) A
reference in this Act to varying a water licence includes a reference to
varying the water allocation of the licence or the conditions attached to the
licence.
(5) The
conversion of the whole or a part of a water (holding) allocation to a water
(taking) allocation under section 155 will be taken for the purposes of this
Act to be the allocation by the Minister of the quantity of water concerned as
a water (taking) allocation endorsed on the relevant water licence.
(6) For
the purposes of this Act, native vegetation is cleared (or would be cleared) if
the relevant activity constitutes (or would constitute) clearance of the native
vegetation under the Native Vegetation Act 1991.
(7) A
regulation, NRM plan or Development Plan may make a designation for the
purposes of a definition under this section by the use of a map or maps
prescribed by the regulation or included in the plan (as the case may be).
(8) For the purposes of this Act, a person is
an associate of another if—
(a) they
are partners; or
(b) one
is a spouse, parent or child of another; or
(c) they
are both trustees or beneficiaries of the same trust, or one is a trustee and
the other is a beneficiary of the same trust; or
(d) one
is a body corporate or other entity (whether inside or outside Australia) and
the other is a director or member of the governing body of the body corporate or
other entity; or
(e) one
is a body corporate or other entity (whether inside or outside Australia) and
the other is a person who has a legal or equitable interest in 5 per cent or
more of the share capital of the body corporate or other entity; or
(f) they
are related bodies corporate within the meaning of the Corporations
Act 2001 of the Commonwealth; or
(g) a
relationship of a prescribed kind exists between them; or
(h) a
chain of relationships can be traced between them under any one or more of the
above paragraphs.
(9) For
the purposes of subsection (8), a beneficiary of a trust
includes an object of a discretionary trust.
(10) The
Governor may, by regulation, declare that a particular reference to this Act in
a provision of this Act will be taken to include a reference to an Act, or to
the provision of an Act, repealed by this Act (and that regulation will then
have effect in accordance with its terms).
(1) Except
where the contrary intention is expressed in this or any other Act, this Act is
in addition to and does not limit or derogate from the provisions of any other
Act.
(2) This Act is subject to the following Acts
and agreements:
(a) the
agreement (as amended from time to time) approved by the Murray-Darling
Basin Act 1993;
(b) the
Border Groundwater Agreement (as amended from time to time) approved by the Groundwater
(Border Agreement) Act 1985;
(c) the
Lake Eyre Basin Intergovernmental Agreement (as amended from time to time)
ratified and approved under the Lake Eyre Basin (Intergovernmental
Agreement) Act 2001;
(d) the
indenture (as amended from time to time) ratified and approved by the Roxby Downs (Indenture Ratification)
Act 1982;
(e) the
Pulp and Paper Mills Agreement Act 1958;
(f) the
Pulp and Paper Mill (Hundred of Gambier) Indenture Act 1961;
(g) the
Pulp and Paper Mill (Hundreds of Mayurra and
Hindmarsh) Act 1964.
(3) Chapter
2 Part 2 and Chapter 6 do not apply in relation to any minerals or other
substances or facilities administered under a Mining Act, or any activity
conducted under a tenement granted under a Mining Act.
5—Territorial and extra-territorial operation of Act
(1) Subject
to this section, this Act applies to the whole of the State.
(2) The
Governor may, by regulation, exclude a part of the State from the operation of
this Act, or specified provisions of this Act.
(3) This
Act extends to an activity or circumstance undertaken or existing outside the
State that may affect the natural resources of the State.
(1) This
Act binds the Crown in right of this State and also, so far as the legislative
power of the State extends, the Crown in all its other capacities, but not so
as to impose any criminal liability on the Crown.
(2) Without
limiting or derogating from subsection (1), all agencies and
instrumentalities of the Crown must endeavour, as far as practicable, to act
consistently with the State NRM Plan and other relevant NRM plans under this
Act.
Chapter 2—Objects of Act and general statutory duties
(1) The objects of this Act include to assist
in the achievement of ecologically sustainable development in the State by
establishing an integrated scheme to promote the use and management of natural
resources in a manner that—
(a) recognises
and protects the intrinsic values of natural resources; and
(b) seeks
to protect biological diversity and, insofar as is reasonably practicable, to
restore or rehabilitate ecological systems and processes that have been lost or
degraded; and
(c) provides
for the protection and management of catchments and the sustainable use of land
and water resources and, insofar as is reasonably practicable, seeks to restore
or rehabilitate land and water resources that have been degraded; and
(d) seeks
to support sustainable primary and other economic production systems; and
(e) provides
for the prevention or control of impacts caused by pest species of animals and
plants that may have an adverse effect on the environment or the community; and
(f) promotes
educational initiatives and provides mechanisms to increase the capacity of
people to be involved in the management of natural resources.
(2) For the purposes of subsection (1),
ecologically sustainable development comprises the use, conservation,
development and enhancement of natural resources in a way, and at a rate, that
will enable people and communities to provide for their economic, social and
physical well-being while—
(a) sustaining
the potential of natural resources to meet the reasonably foreseeable needs of
future generations; and
(b) safeguarding
the life-supporting capacities of natural resources; and
(c) avoiding,
remedying or mitigating any adverse effects of activities on natural resources.
(3) The following principles should be taken
into account in connection with achieving ecologically sustainable development
for the purposes of this Act:
(a) decision-making
processes should effectively integrate both long term and short term economic,
environmental, social and equity considerations;
(b) if
there are threats of serious or irreversible damage to natural resources, lack
of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation;
(c) decision-making
processes should be guided by the need to evaluate carefully the risks of any
situation or proposal that may adversely affect the environment and to avoid,
wherever practicable, causing any serious or irreversible damage to the
environment;
(d) the
present generation should ensure that the health, diversity and productivity of
the natural environment is maintained or enhanced for the benefit of future
generations;
(e) a
fundamental consideration should be the conservation of biological diversity
and ecological integrity;
(f) environmental
factors should be taken into account when valuing or assessing assets or
services, costs associated with protecting or restoring the natural environment
should be allocated or shared equitably and in a manner that encourages the
responsible use of natural resources, and people who obtain benefits from the
natural environment, or who adversely affect or consume natural resources,
should bear an appropriate share of the costs that flow from their activities;
(g) if
the management of natural resources requires the taking of remedial action, the
first step should, insofar as is reasonably practicable and appropriate, be to
encourage those responsible to take such action before resorting to more formal
processes and procedures;
(h) consideration
should be given to Aboriginal heritage, and to the interests of the traditional
owners of any land or other natural resources;
(i) the involvement of the public in providing
information and contributing to processes that improve decision-making should
be encouraged;
(j) the
responsibility to achieve ecologically sustainable development should be seen
as a shared responsibility between the public sector, the private sector, and
the community more generally;
(k) the
local government sector is to be recognised as a key participant in natural
resource management, especially on account of its close connections to the
community and its role in regional and local planning.
8—Administration of Act to achieve objects
(1) The
Minister, the Court and all other persons or bodies involved in the
administration of this Act, or performing, exercising or discharging a
function, power or duty under this Act, must have regard to, and seek to
further, the objects of this Act.
(2) A
person acting under one part of this Act should consider any other relevant
part of this Act so as to adopt, insofar as is reasonably practicable and
appropriate, an integrated approach to the operation and administration of this
Act.
Part 2—General statutory duties
(1) A
person must act reasonably in relation to the management of natural resources
within the State.
(2) In determining what is reasonable for the
purposes of subsection (1), regard must be had, amongst other things, to
the objects of this Act, and to—
(a) the
need to act wisely and responsibly in relation to the management of natural
resources, and the potential impact of a failure to comply with the relevant
duty; and
(b) any
environmental, social, economic or practical implications, including any
relevant assessment of costs and benefits associated with a particular course
of action, the financial implications of various measures or options, and the
current state of technical and scientific knowledge; and
(c) any
degrees of risk that may be involved; and
(d) the
extent to which a person is responsible for the management of the natural
resources; and
(e) the
significance of the natural resources, including in relation to the environment
and to the economy of the State (if relevant); and
(f) the
extent to which an act or activity may have a cumulative effect on any natural
resources; and
(g) any
pre-existing circumstance, and the state or condition of the natural resources.
(3) A person will be taken not to be in breach
of subsection (1) if the person is acting—
(a) in
pursuance of a requirement under this Act; or
(b) in
a manner consistent with the relevant regional NRM plan; or
(c) in
circumstances prescribed by the regulations.
(4) Subject
to subsections (5) and (6), a person who breaches subsection (1) is not,
on account of the breach alone, liable to any civil or criminal action.
(5) If a person breaches subsection (1)—
(a) the
person may be required to prepare and implement an action plan in the
circumstances contemplated by Chapter 6; and
(b) compliance
with the subsection may be enforced by the issuing of a protection order under
Chapter 9 Part 1; and
(c) a
reparation order or reparation authorisation may be issued under Chapter 9 Part
1; and
(d) an
order may be made by the ERD Court under Chapter 9 Part 2 in respect of the
non-compliance.
(6) Subsection (4)
does not limit or derogate from any other provision of this Act.
(7) To
avoid doubt, a person cannot, in relation to the operation of this section, be
held responsible for any condition or circumstance existing before the
commencement of this section.
(1) The functions of the Minister under this
Act are—
(a) to
keep the state and condition of the natural resources of the State under
review; and
(b) to
develop or co-ordinate policies relating to natural resources management, to
promote sound management programs and practices for the use, development or
protection of the natural resources of the State, and to develop and apply
policies relating to the control of animals and plants to protect public health
and safety, the natural environment, and primary production within the State;
and
(c) in
relation to the application of this Act with respect to the Murray-Darling
Basin, and as far as reasonably practicable—
(i) to act to integrate the administration of
this Act with the administration of the River Murray Act 2003; and
(ii) to
promote the integration or co-ordination of policies, programs, plans and
projects under this Act with relevant activities undertaken under the River
Murray Act 2003; and
(d) to
conduct and support research into the preservation, protection, management,
enhancement, restoration or rehabilitation of the State's natural resources;
and
(e) to
compile, maintain and update information in relation to the State's natural
resources; and
(f) to
promote public awareness of the importance of the State's natural resources and
to encourage the conservation of those resources; and
(g) to
promote the pursuit of the objects of this Act by State and local government
bodies, the private sector and the public, and to promote the application of
the various principles and duties prescribed by this Act; and
(h) to
promote the integration or co-ordination of policies, programs, plans and
projects insofar as they are relevant to the proper management, use or
protection of the State's natural resources; and
(i) to ensure that appropriate consideration is
given to NRM plans when decisions are being made with respect to the allocation
of resources; and
(j) such
other functions assigned to the Minister by or under this Act.
(2) The regulations may—
(a) prescribe
the kinds of information to which subsection (1)(e) applies; and
(b) require
persons or bodies referred to in the regulations to provide the Minister with
information of that kind that is in their possession.
(3) Without
limiting any other power of the Minister, the Minister may direct an NRM
authority or authorities to observe policies and comply with standards
specified by the Minister in relation to the gathering, recording and keeping
of information.
(1) The Minister has the power to do anything
necessary, expedient or incidental to—
(a) performing
the functions of the Minister under this Act; or
(b) administering
this Act; or
(c) furthering
the objects of this Act.
(2) Without limiting the operation of
subsection (1), the Minister may—
(a) enter
into any form of contract, agreement or arrangement; and
(b) acquire,
hold, deal with and dispose of real and personal property or any interest in
real or personal property; and
(c) provide
for the care, control, management, preservation, protection, enhancement,
restoration or rehabilitation of any natural resources; and
(d) act
in conjunction with any other person or authority.
(1) The
Minister may delegate to a body or person (including a person for the time
being holding or acting in a specified office or position) a function or power
of the Minister under this Act, or under any other Act that, in the opinion of
the Minister, is relevant to the operation or administration of this Act.
(2) A delegation under this section—
(a) must
be by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the ability of the Minister to act in any matter; and
(d) is
revocable at will.
(3) A
function or power delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(4) The Minister cannot delegate—
(a) the
function of making recommendations to the Governor; or
(b) the
Minister's functions or powers under Chapter 5.
(5) A person to whom functions or powers have
been delegated under subsection (1) who has a direct or indirect personal
or pecuniary interest in any matter in relation to which the person proposes to
perform those functions or exercise those powers must disclose the nature of
the interest in writing to the Minister.
Maximum penalty: $20 000.
(6) It
is a defence to a charge of an offence against subsection (5) to prove
that the defendant was not, at the time of the alleged offence, aware of his or
her interest in the matter.
Division 1—Establishment of NRM Council
13—Establishment of NRM Council
(1) The
Natural Resources Management Council is established.
(2) The
NRM Council is subject to the general direction and control of the Minister.
Division 2—The Council's membership
(1) The
NRM Council consists of 9 members appointed by the Governor on the nomination
of the Minister, being persons who collectively have, in the opinion of the
Minister, the knowledge, skills and experience necessary to enable the NRM
Council to carry out its functions effectively.
(2) Of those members:
(a) 1
(who will be the presiding member) must be a person who has, in the opinion of
the Minister, extensive experience in the management of natural resources and
been actively involved in community affairs; and
(b) 1
must be nominated from a panel of 3 persons submitted by the LGA; and
(c) 1
must be nominated from a panel of 3 persons submitted by the Conservation
Council of South Australia; and
(d) 1
must be nominated from a panel of 3 persons submitted by the South Australian
Farmers Federation Incorporated; and
(e) 1
must be nominated after the Minister has consulted with bodies that, in the
opinion of the Minister, are suitable to represent the interests of Aboriginal
people for the purposes of this Act.
(3) If
the Minister does not receive a submission from a body under
subsection (2)(b), (c), or (d) within a reasonable time after requesting
the submission of 3 names by that body, the Minister may, by notice in writing,
request the relevant body to make a nomination within a time (being not less
than 1 month) allowed in the notice and if a nomination is not made within that
time, then the Minister may proceed to nominate a person determined by the
Minister in lieu of a person submitted by that body.
(4) Before
nominating the remaining members of the NRM Council, the Minister must place a
notice in a newspaper circulating generally throughout the State inviting
expressions of interest for appointment to the NRM Council within a period
specified by the Minister, and then take into account any expressions of
interest received within the relevant time.
(5) For the purposes of subsections (1)
and (2), the Minister should (as far as is reasonably practicable in the
circumstances)—
(a) give
consideration to nominating persons so as to provide a range of knowledge,
skills and experience across the following areas:
(i) primary production or pastoral land
management (on the basis of practical experience in these areas);
(ii) soil
conservation and land management;
(iii) conservation
and biodiversity management;
(iv) water
resources management;
(v) business
administration;
(vi) local
government or local government administration;
(vii) urban
and regional planning;
(viii) Aboriginal
interests in the land and water, and Aboriginal heritage;
(ix) coast,
estuarine and marine management;
(x) fisheries
or aquaculture;
(xi) pest
animal and plant control;
(xii) natural
and social science; and
(b) endeavour
to nominate persons who are able to demonstrate an interest in ensuring the sustainable
use and conservation of natural resources and in participating in community
affairs; and
(c) endeavour
to include a range of persons from across the State.
(6) At
least 2 members of the NRM Council must be women and at least 2 members must be
men.
(7) The
Governor may, on the nomination of the Minister, appoint a suitable person to
be the deputy of a member of the NRM Council.
(8) A
deputy may act as a member of the NRM Council during any period of absence of
the member in relation to whom the deputy has been appointed.
(9) The
Minister may, by instrument in writing, authorise a person or persons to attend
any meeting of the NRM Council in order to represent the interests of the Commonwealth,
the State or local government.
(10) A person who holds an authorisation under
subsection (9) is entitled—
(a) to
receive notice of any meeting of the NRM Council; and
(b) to
have access to papers provided to members of the NRM Council for the purposes
of any meeting; and
(c) to
attend, and participate in, any meeting of the NRM Council (but has no
entitlement to vote).
(1) A
member of the NRM Council will hold office on conditions determined by the
Governor for a term, not exceeding 4 years, specified in the instrument of
appointment and will, at the expiration of a term of office, be eligible for
reappointment.
(2) The Governor may remove a member of the NRM
Council from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
mental or physical incapacity to carry out duties of office satisfactorily; or
(c) for
neglect of duty; or
(d) for
dishonourable conduct.
(3) The office of a member of the NRM Council
becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice addressed to the Minister; or
(d) is
found guilty of an indictable offence; or
(e) is
removed from office by the Governor under subsection (2).
A member of the NRM Council is entitled to fees, allowances and
expenses approved by the Governor.
An act or proceeding of the NRM Council is not invalid by reason
only of a vacancy in its membership, a defect in the appointment of a member or
a situation where all of the requirements of section 14(5) are not
satisfied.
Division 3—Functions of NRM Council
(1) The functions of the NRM Council are—
(a) to
provide advice to the Minister on the administration and operation of this Act;
and
(b) to
audit, monitor and evaluate the state and condition of natural resources across
the State, and to evaluate and report on—
(i) the performance of the NRM authorities
established under this Act; and
(ii) the
integration of natural resources management practices on account of this Act;
and
(c) to
prepare, and to keep under review, the State NRM Plan, and to keep under review
the extent to which—
(i) regional NRM plans; and
(ii) policies
and practices adopted or applied by NRM authorities,
are consistent with the State NRM Plan; and
(d) to
monitor and evaluate the effectiveness of—
(i) this Act; and
(ii) the
State NRM Plan; and
(iii) other
natural resources management policies initiated by the Government,
and to provide reports to the Minister, and to other relevant
persons and bodies, in relation to these matters; and
(e) as
far as reasonably practicable and appropriate—
(i) to promote the implementation of integrated
natural resources management practices and principles under other Acts; and
(ii) to
contribute to the adoption of sound natural resources management policies under
the Planning Strategy under the Development Act 1993; and
(iii) to
ensure that natural resources management issues are considered when reports on
the state of the environment are being prepared at State level; and
(f) to
assist in the coordination of natural resources management initiatives across 2
or more regions and to resolve any issues that may arise between regional NRM
boards; and
(g) to
convene forums on a State-wide basis to discuss natural resources management
issues, and to promote public awareness of sound natural resources management
practices; and
(h) at
the request of the Minister, or on its own initiative, to advise the Minister
on any matter relevant to the condition of natural resources within the State,
or on the management of those resources, to conduct any inquiry or audit, or to
provide any other advice or report that may be appropriate in the
circumstances; and
(i) such other functions assigned to the
Council by the Minister or by or under this or any other Act.
(2) In performing its functions, the NRM
Council should seek to work collaboratively with—
(a) other
State agencies, agencies of the Commonwealth, and agencies of the other States
and Territories, that have functions that are relevant to those of the Council;
and
(b) local
government; and
(c) relevant
industry, environment and community groups and organisations.
(3) The NRM Council has the power to do
anything necessary, expedient or incidental to—
(a) performing
the functions of the NRM Council under this or any other Act; or
(b) furthering
the objects of this Act.
(1) The NRM Council—
(a) must
establish the committees required by the regulations; and
(b) may
establish such other committees as the Council thinks fit,
to advise or assist the Council.
(2) A
committee established under subsection (1) may, but need not, consist of
or include members of the NRM Council.
(3) The procedures to be observed in relation
to the conduct of business of a committee will be—
(a) as
prescribed by regulation; or
(b) insofar
as the procedure is not prescribed by regulation—as determined by the NRM
Council; or
(c) insofar
as the procedure is not prescribed by regulation or determined by the NRM
Council—as determined by the committee.
(1) The
NRM Council may delegate to a body or person (including a person for the time
being holding or acting in a specified office or position) a function or power
of the Council under this or any other Act.
(2) A delegation under this section—
(a) must
be by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the ability of the NRM Council to act in any matter; and
(d) is
revocable at will.
(3) A
function or power delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(1) The
NRM Council must, on or before 30 November in each year, provide to the
Minister a report on its activities for the financial year ending on the
preceding 30 June (and need not provide a report under section 6A of the Public
Sector Management Act 1995).
(2) The
report must be accompanied by annual reports of regional NRM boards received
under Part 3 and include any other report or information provided to the NRM
Council under this Act for inclusion in its annual report.
(3) The
Minister must cause a copy of a report provided to the Minister under this
section to be laid before both Houses of Parliament within 12 sitting days
after receiving the report.
(4) The
Chief Executive of the Department must ensure that a copy of any report within
the ambit of subsection (3) is published on the Department's website
within 5 business days after being laid before both Houses of Parliament under
that subsection.
The NRM Council may, by arrangement with
the relevant body, make use of the services of the staff, equipment or
facilities of—
(a) an
administrative unit in the Public Service; or
(b) a
public authority.
Division 1—Establishment of regions
(1) The
Minister may, by notice in the Gazette, divide the State into Natural
Resources Management Regions.
(2) The Minister should, in establishing NRM
regions—
(a) give
attention to the nature and form of the natural environment and give particular
attention to water catchment areas and biogeographical regions; and
(b) take
into account relevant economic, social, cultural and local government
boundaries or areas.
(3) The Minister may, by subsequent notice in
the Gazette—
(a) vary
the boundaries of any NRM region;
(b) abolish
an NRM region (on the basis that a new division is to occur).
(4) If
the Minister takes action under subsection (3), the Minister may, by
notice in the Gazette, make provision for any transitional or consequential
matter, including for the transfer, apportionment or adjustment of property,
assets, rights, liabilities or expenses as between any relevant regional NRM
boards or the alteration or revision of any plan under this Act (and any such
notice will have effect according to its terms and despite any other provision
of this or any other Act, or any law, agreement or arrangement).
(5) The Minister must, before publishing a
notice under subsection (3)—
(a) give
the LGA notice of the Minister's intention to publish a notice under that
subsection and give consideration to any submission made by the LGA within a
period (being at least 21 days) specified in the notice; and
(b) consult
with the NRM Council.
Division 2—Establishment of regional NRM boards
(1) The
Minister must, by notice in the Gazette, establish a regional NRM board for
each NRM region.
(2) A notice under subsection (1) must—
(a) identify
the region in relation to which the regional NRM board is established; and
(b) assign
a distinctive name to the regional NRM board; and
(c) set
out functions of the regional NRM board (if any) that are additional to the
functions prescribed by this Act.
(3) The Minister may, by subsequent notice in
the Gazette—
(a) vary
a notice under this section (including by making a variation to the functions
of the regional NRM board under subsection (2)(c));
(b) abolish
a regional NRM board (on the basis that the relevant region is being abolished under
Division 1).
(4) A notice relating to a regional NRM board
under subsection (3) may provide for any transitional or consequential matter,
including—
(a) by
providing that the property, assets, rights or liabilities of the board will
vest in or attach to—
(i) the Crown; or
(ii) a
Minister; or
(iii) another
NRM authority; or
(iv) any
other agency or instrumentality of the Crown; or
(v) with
the agreement of the relevant person or body, a person or body specified in the
notice;
(b) by
making provision with respect to any relevant regional NRM plan,
(and any such notice will have effect according to its terms and
despite any other provision of this or any other Act, or any law, agreement or
arrangement).
(5) The Minister must, before publishing a
notice under subsection (3)—
(a) give
the LGA notice of the Minister's intention to publish a notice under that
subsection and give consideration to any submission made by the LGA within a
period (being at least 21 days) specified in the notice; and
(b) consult
with the NRM Council.
(1) A regional NRM board—
(a) is
a body corporate; and
(b) has
perpetual succession and a common seal; and
(c) can
sue and be sued in its corporate name; and
(d) is
an instrumentality of the Crown and holds its property on behalf of the Crown;
and
(e) has
the functions and powers assigned or conferred by or under this or any other
Act.
(2) If
a document appears to bear the common seal of a regional NRM board, it will be
presumed, in the absence of proof to the contrary, that the common seal of the
regional NRM board was duly fixed to the document.
(3) A
regional NRM board is subject to the direction and control of the Minister.
(1) A
regional NRM board consists of up to 9 members appointed by the Governor on the
nomination of the Minister, being persons who collectively have, in the opinion
of the Minister, after taking into account any recommendation of the NRM
Council, knowledge, skills and experience necessary to enable the board to
carry out its functions effectively.
(2) Before nominating a person or persons under
subsection (1), the Minister—
(a) must
place a notice in a newspaper circulating generally throughout the region
inviting expressions of interest for appointment to the relevant board within a
period specified in the notice, and then take into account any recommendation
of the NRM Council after the NRM Council has been given an opportunity to
consider any expressions of interest received within the relevant time; and
(b) should,
insofar as may be relevant to the circumstances of the particular case, consult
with—
(i) the LGA; and
(ii) such
bodies representing the interests of persons involved in primary production,
conservation or natural resource management, or Aboriginal people, as the
Minister considers to be appropriate in the circumstances.
(3) The
Chief Executive of the Department must ensure that a copy of a notice under
paragraph (a) of subsection (2) is published on the Department's website
within 2 business days after being published under that paragraph.
(4) For the purposes of subsection (1),
the Minister should (as far as is reasonably practicable in the circumstances)—
(a) give
consideration to nominating persons so as to provide a range of knowledge,
skills and experience across the following areas:
(i) community affairs at the regional level;
(ii) primary
production or pastoral land management;
(iii) soil
conservation and land management;
(iv) conservation
and biodiversity management;
(v) water
resources management;
(vi) business
administration;
(vii) local
government or local government administration;
(viii) urban
or regional planning;
(ix) Aboriginal
interest in the land and water, and Aboriginal heritage;
(x) pest
animal and plant control;
(xi) natural
and social science;
(xii) if
relevant—coast, estuarine and marine management, fisheries or aquaculture; and
(b) endeavour
to nominate persons who are able to demonstrate an interest in ensuring the
sustainable use and conservation of natural resources and an awareness of
natural resource issues across the relevant region; and
(c) endeavour
to ensure—
(i) that a majority of the members of the board
reside within the relevant region; and
(ii) that
a majority of the members of the board are engaged in an activity related to
the management of land.
(5) At
least 1 member of a regional NRM board must be a woman and at least 1 member
must be a man.
(6) At least 1 member of a regional NRM board
must be a member or officer of a council at the time of his or her appointment,
unless—
(a) the
board's region does not include any part of the area of a council; or
(b) the
Minister cannot, after taking reasonable steps, find a member or officer of a
council who—
(i) in the opinion of the Minister, is suitable
to be appointed as a member of the board; and
(ii) is
willing and available to be a member of the board.
(7) The
Governor must appoint a suitable member of a regional NRM board to be the
presiding member of the board.
(8) The
Governor may appoint a suitable person to be the deputy of a member of a
regional NRM board.
(9) A
deputy may act as a member of a regional NRM board during any period of absence
of the member in relation to whom the deputy has been appointed.
(10) The
Minister may, by instrument in writing, authorise a person or persons to attend
any meeting of a regional NRM board in order to represent the interests of the
Commonwealth, the State or local government.
(11) A person who holds an authorisation under
subsection (10) is entitled—
(a) to
receive notice of any meeting of the board; and
(b) to
have access to papers provided to members of the board for the purposes of any
meetings; and
(c) to
attend, and participate in, any meeting of the board (but has no entitlement to
vote).
(1) A
member of a regional NRM board will hold office on conditions determined by the
Governor for a term, not exceeding 4 years, specified in the instrument of
appointment and will, at the expiration of a term of office, be eligible for
reappointment.
(2) The Governor may remove a member of a
regional NRM board from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
mental or physical incapacity to carry out duties of office satisfactorily; or
(c) for
neglect of duty; or
(d) for
dishonourable conduct; or
(e) if
serious irregularities have occurred in the conduct of the board's affairs or
the board has failed to carry out its functions satisfactorily and the Minister
considers, after consultation with the NRM Council, that the board should be
reconstituted for that reason.
(3) The office of a member of a regional NRM
board becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice addressed to the Minister; or
(d) is
found guilty of an indictable offence; or
(e) is
removed from office by the Minister under subsection (2).
A member of a regional NRM board is entitled to fees, allowances
and expenses approved by the Governor.
An act or proceeding of a regional NRM board is not invalid by
reason only of a vacancy in its membership, a defect in the appointment of a
member or a situation where all of the requirements of section 26(4) are not
satisfied.
Division 4—Functions of boards
(1) The functions of a regional NRM board are—
(a) to
undertake an active role with respect to the management of natural resources
within its region; and
(b) —
(i) to prepare a regional NRM plan in
accordance with this Act; and
(ii) to
implement that plan; and
(iii) to
keep the plan under review to ensure that the objects of this Act are being
achieved; and
(c) to
promote public awareness and understanding of the importance of integrated and
sustainable natural resources management within its region, to undertake or
support educational initiatives with respect to natural resources management,
and to provide mechanisms to increase the capacity of people to implement
programs or to take other steps to improve the management of natural resources;
and
(d) to
provide advice with respect to the assessment of various activities or
proposals referred to the board under this or any other Act; and
(e) to
resolve any issues that may arise between any NRM groups that are relevant to
the management of natural resources within its region; and
(f) at
the request of the Minister or the NRM Council, or on its own initiative, to
provide advice on any matter relevant to the condition of natural resources
within its region, or on the management of those resources, to conduct any
inquiry or audit, or to provide any other advice or report that may be
appropriate in the circumstances; and
(g) such
other functions assigned to the board by the Minister or by or under this or
any other Act.
(2) To
avoid doubt, a regional NRM board may act with respect to a particular matter
despite the fact that the matter may not fall within the scope of its regional
NRM plan.
(3) In performing its functions, a regional NRM
board should (as far as is reasonably practicable) seek to work collaboratively
with—
(a) the
other regional NRM boards whose regions adjoin the region of the board; and
(b) other
State agencies, agencies of the Commonwealth, and agencies of the other States
and Territories, that have functions that are relevant to those of the board;
and
(c) NRM
groups with areas that fall (wholly or partially) within the region of the
board; and
(d) the
constituent councils for the region, and other councils as may be relevant; and
(e) relevant
industry, environment and community groups and organisations; and
(f) persons
who own or occupy land within the region of the board (insofar as may be
relevant).
(4) A
regional NRM board will, with respect to the performance of its functions,
report to the Minister.
(1) A regional NRM board has the power to do
anything necessary, expedient or incidental to—
(a) performing
the functions of the board under this or any other Act; or
(b) assisting
in the administration of this Act; or
(c) furthering
the objects of this Act.
(2) Without limiting the operation of
subsection (1) (but subject to subsections (3) and (4)), a regional
NRM board may—
(a) enter
into any form of contract, agreement or arrangement; and
(b) acquire,
hold, deal with and dispose of real and personal property or any interest in
real or personal property; and
(c) provide
for the care, control, management, conservation or preservation of any natural
resource; and
(d) seek
expert, technical or other advice on any matter from any person or such terms
and conditions as the board thinks fit; and
(e) carry
out projects; and
(f) act
in conjunction with any other authority or person.
(3) A regional NRM board must not, without the
approval of the Minister—
(a) undertake
an activity with the object (or principal object) of securing a profit; or
(b) participate
in any commercial or business activity.
(4) The
Minister may, by instrument in writing given to a regional NRM board, limit or
regulate the powers of the board in any other respect.
(5) Subject
to any direction of the Minister, a regional NRM board may, as the board thinks
fit, undertake activities outside its region.
(6) Money
received by a regional NRM board under this Act or in performing its functions
or duties or exercising its powers under this Act is not payable into the
Consolidated Account and may be applied by the board without further
appropriation by Parliament.
(7) In this section—
project includes any form of work, scheme, undertaking or other activity.
(1) A
regional NRM board may, with the approval of the Minister given by instrument
in writing, acquire land pursuant to the Land Acquisition Act 1969.
(2) The
Minister may give an approval under subsection (1) if the Minister
considers that the acquisition of the land is reasonably necessary to further
the objects of this Act.
(3) Nothing in this section limits or affects—
(a) the
ability of a regional NRM board to acquire land by agreement; or
(b) the
operation of any other section of this Act.
33—Special powers to carry out works
(1) Without limiting any other provision of
this Act, a regional NRM board may—
(a) construct,
maintain or remove any infrastructure; and
(b) excavate
any land; and
(c) inspect,
examine or survey any land and for that purpose—
(i) fix posts, stakes or other markers on the
land; and
(ii) dig
trenches or sink test holes in the land to determine the nature of the top soil
and underlying strata; and
(iii) remove
samples for analysis; and
(d) alter
water table levels, stop or reduce the flow of water in a watercourse, divert
water flowing in a watercourse to another watercourse or to a lake or control
the flow of water in in any other manner; and
(e) hold
water in a watercourse or lake or by any other means; and
(f) divert
water to an underground aquifer, dispose of water to a lake, underground
aquifer or the sea, or deal with water in any other manner; and
(g) deepen,
widen or change the course of a watercourse, deepen or widen a lake or take
action to remove any obstruction to the flow of water; and
(h) undertake
any other form of work (including work undertaken for the purposes of
stormwater management or flood mitigation); and
(i) undertake any testing, monitoring or
evaluation; and
(j) undertake
any other activity of a prescribed kind.
(2) A regional NRM board must not exercise a
power under subsection (1)(a), (b), (g) or (h) in relation to private land
with the intention that any infrastructure, devices or works will be permanent
unless—
(a) it
is intended that the owner of the private land will undertake the care, control
or management of any relevant infrastructure, devices or works; or
(b) the
board has first acquired an easement or other appropriate interest over the
relevant land.
(3) Subsection (2)
does not limit or affect the ability of a regional NRM board to acquire land by
agreement for the purpose of constructing any infrastructure or performing any
work.
(4) In this section—
lake includes an artificial lake, dam or reservoir.
34—Entry and occupation of land
(1) This
section does not apply to, or in relation to, land the use, or the care,
control and management, of which is vested in a regional NRM board.
(2) For
the purpose of carrying out its functions or exercising its powers, a regional
NRM board, or a person authorised by a regional NRM board, may enter and occupy
any land.
(3) A
regional NRM board or a person authorised by a regional NRM board must give
reasonable notice of his or her intention to enter, or to enter and occupy,
land to the occupier of the land.
(4) The period of the notice must be at least
24 hours except—
(a) where
the occupier has given his or her consent; or
(b) in
an emergency, in which case the person proposing to enter must give such notice
(if any) as he or she considers is reasonable in the circumstances.
(5) A
regional NRM board or other person acting under this section may not enter
residential premises except with the consent of the occupier.
(6) A regional NRM board or other person
entering or occupying land under this section—
(a) must
cause as little harm and inconvenience as practicable; and
(b) must
not occupy the land for any longer than is reasonably necessary; and
(c) must
leave the land as nearly as possible in the condition in which he, she or it
found the land; and
(d) must
co-operate as far as practicable with any owner or occupier of the land.
(7) A person must not, without reasonable
excuse, obstruct or hinder a person exercising powers under this section.
Maximum penalty: $20 000.
(8) A person may use force to enter land under
this section—
(a) on
the authority of a warrant issued by a magistrate; or
(b) if
the person believes, on reasonable grounds, that the circumstances require
immediate entry on to the land.
(9) A
magistrate must not issue a warrant under subsection (8) unless satisfied,
on information given on oath, that the warrant is reasonably required in the
circumstances.
(10) An application for a warrant under
subsection (8)—
(a) may
be made either personally or by telephone; and
(b) must
be made in accordance with any procedures prescribed by the regulations.
35—Special vesting of infrastructure
(1) Subject
to this section, the Governor may, by proclamation made on the recommendation
of the Minister, vest in a regional NRM board the use of any infrastructure
vested in or under the care, control or management of a public authority.
(2) Subject
to this section, the Governor may, by proclamation made on the recommendation
of the Minister, vest in a regional NRM board the use of any land vested in or
under the care, control or management of a public authority that is specified
in the board's regional NRM plan as being land that should be under the care,
control and management of the board.
(3) Subject
to subsection (4), if the use of infrastructure or land is vested in a
regional NRM board under subsection (1) or (2), the care, control and management
of the infrastructure or land is also vested in the board and the board is
responsible for the maintenance and repair of the infrastructure or the
maintenance of the land.
(4) The use of infrastructure or land will be
vested exclusively in a regional NRM board by a proclamation under
subsection (1) or (2) unless the proclamation provides for the use to be
shared by the board and a public authority in which case the proclamation must—
(a) specify
the respective responsibilities of the board and the public authority for the
care, control and management and the maintenance and repair of the
infrastructure or land; and
(b) include
any other conditions that are necessary or desirable, in the Governor's
opinion, relating to the shared use of the infrastructure or land.
(5) A
regional NRM board is not liable to pay compensation to a public authority in
respect of a proclamation under subsection (1) and (2).
(6) Subject
to this section, the Governor may, by subsequent proclamation made on the
recommendation of the Minister, vary or revoke a proclamation under this
section.
(7) The
Governor cannot make a proclamation under subsection (1), (2) or (6) in
relation to infrastructure or land vested in or under the care, control or
management of a council or council subsidiary without the consent in writing of
the council or council subsidiary.
(1) The
staffing arrangements for a regional NRM board will be approved by the
Minister.
(2) Any staff under subsection (1) will be—
(a) if
appointments have been made under subsection (3)—the persons holding those
appointments; or
(b) Public
Service employees assigned to work with the regional NRM board.
(3) A
regional NRM board may, on terms and conditions fixed by the board with the
approval of the Commissioner for Public Employment, appoint persons to the
staff of the board.
(4) A
person appointed under subsection (3) is not a Public Service employee.
Division 7—Committees and delegations
(1) A regional NRM board—
(a) must
establish the committees required by the regulations; and
(b) may
establish such other committees as the board thinks fit,
to advise or assist the board.
(2) A
committee established under subsection (1) may, but need not, consist of
or include members of the regional NRM board.
(3) The procedures to be observed in relation
to the conduct of the business of a committee will be—
(a) as
prescribed by regulation; or
(b) insofar
as the procedure is not prescribed by regulation—as determined by the regional
NRM board; or
(c) insofar
as the procedure is not prescribed by regulation or determined by the regional
NRM board—as determined by the committee.
(4) A
regional NRM board must, in acting under this section, comply with any
guidelines issued by the Minister for the purposes of this section.
(1) A regional NRM board may delegate a
function or power of the board under this or any other Act—
(a) to
a member of the board; or
(b) with
the approval of the Minister—to a committee established by the board; or
(c) with
the approval of the council—to a council or an officer of a council; or
(d) with
the approval of the council subsidiary—to a council subsidiary or an officer of
a council subsidiary; or
(e) to
a member of the staff of the board; or
(f) to
an NRM group; or
(g) with
the approval of the Minister—to any other person or body.
(2) A delegation under this section—
(a) must
be by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the ability of the regional NRM board to act in any matter;
and
(d) is
revocable at will.
(3) A
function or power delegated under this section may, if the instrument of
delegation so provides, be further delegated.
Division 8—Accounts, audit and reports
(1) A
regional NRM board must cause proper accounts to be kept of its financial
affairs and must cause financial statements to be prepared in respect of each
financial year.
(2) The
Auditor-General may at any time, and must in respect of each financial year,
audit the accounts and financial statements required under subsection (1).
(1) A
regional NRM board must, on or before 31 October in every year, provide to the
NRM Council a report on its activities for the financial year ending on the
preceding 30 June (and need not provide a report under section 6A of the Public
Sector Management Act 1995).
(2) The report must—
(a) include
an assessment of the extent to which the regional NRM board has succeeded in
implementing its regional NRM plan; and
(b) include
the audited accounts and financial statements of the regional NRM board; and
(c) include
a report on the activities of NRM groups within its region; and
(d) include
other information required by or under this Act or the regulations.
(1) The
Minister or the NRM Council may, by written notice to a regional NRM board,
require the board to provide to the Minister or the NRM Council, within a
period stated in the notice or at stated intervals, any report or reports
relating to the performance, exercise or discharge of its functions, powers or
responsibilities, as the Minister or the NRM Council (as the case may be)
thinks fit.
(2) If
a requirement is imposed under subsection (1), the regional NRM board must
cause a statement of the fact of the imposition of the requirement to be
published in its next annual report.
Division 9—Appointment of administrator
42—Appointment of administrator
(1) The
Minister may appoint an administrator of a regional NRM board, or remove or
replace an administrator previously appointed under this section.
(2) Before appointing an administrator of a
regional NRM board, the Minister must be satisfied that the board—
(a) has
persistently failed properly to perform its functions; or
(b) has
contravened, or failed to comply with, a provision of this Act; or
(c) has
been guilty of serious financial mismanagement.
(3) The
function of an administrator is to reorganise the management and operations of
the regional NRM board to the extent necessary to enable it to perform its
functions and exercise its powers efficiently on a continuing basis in
accordance with this Act.
(4) An
administrator has, while the appointment remains in force, full and exclusive
power to perform the functions and exercise the powers of the regional NRM
board.
(5) An
administrator must comply with any directions that the Minister may give from
time to time.
(6) If an administrator has a direct or
indirect personal or pecuniary interest in any matter in relation to which he
or she proposes to act as administrator under this section, the administrator
must disclose the nature of the interest to the Minister before acting.
Maximum penalty: $20 000.
(7) The
remuneration of an administrator will be fixed by the Minister and is payable
from the regional NRM board's funds.
(8) An
administrator may, by instrument in writing, delegate a function or power of
the administrator under this Act.
(9) A delegation under this section—
(a) may
be absolute or conditional; and
(b) does
not derogate from the ability of the administrator to act in any matter; and
(c) is
revocable at will.
(10) A person to whom functions or powers have
been delegated under subsection (8) who has a direct or indirect personal
or pecuniary interest in any matter in relation to which the person proposes to
exercise those functions or powers must disclose the nature of the interest in
writing to the administrator.
Maximum penalty: $20 000.
(11) It
is a defence to a charge of an offence against subsection (6) or (10) to
prove that the defendant was not, at the time of the alleged offence, aware of
his or her interest in the matter.
(12) The
members of a regional NRM board are suspended from office while an
administrator holds office under this section.
(13) The
Minister must consult with the NRM Council before the Minister appoints an
administrator under this section.
A regional NRM board may, by arrangement with
the relevant body, make use of the services of the staff, equipment or
facilities of—
(a) an
administrative unit in the Public Service; or
(b) a
public authority.
44—Board's power to provide financial assistance etc
(1) A regional NRM board may provide financial
or any other form of assistance—
(a) to
councils, persons carrying on business, community or volunteer groups or any
other persons if the council, person or group is engaged in an activity,
whether in the board's region or not, that will improve the state of any
natural resources, or that relates in any other way to the management of
natural resources, taking into account the provisions of the board's regional
NRM plan; or
(b) to
assist persons who have been detrimentally affected as a result of the board's
implementation of its regional NRM plan; or
(c) in
any other circumstances as the board thinks fit.
(2) A regional NRM board may require a person
who wishes to obtain financial or other assistance under subsection (1) to
make a written submission to the board setting out—
(a) the
nature of the assistance requested (and, in the case of financial assistance,
the amount requested); and
(b) the
purpose or purposes for which and the manner in which the assistance will be
used; and
(c) the
reasons why, in the applicant's opinion, the granting of the assistance by the
board is justified.
(3) A
regional NRM board may make copies of submissions received by it under
subsection (2) available for inspection and purchase by members of the
public.
(4) A
regional NRM board may provide financial or other assistance on such conditions
as the board thinks fit.
45—Assignment of responsibility for infrastructure to another person or body
(1) A regional NRM board may assign any
responsibility for the care, control or management of infrastructure—
(a) to
an NRM group; or
(b) to
an owner or occupier of land on which the infrastructure is situated if the
relevant owner or occupier agrees to the assignment; or
(c) with
the approval of the Minister, to a third party.
(2) The
Minister must ensure that reasonable steps have been taken to consult with any
owner or occupier of the relevant land before an assignment is made under
subsection (1)(c).
(3) An
assignment under subsection (1)(b) or (c) will be effected by agreement
entered into in accordance with the regulations.
(4) An
agreement under subsection (3) may include arrangements for access to the
land on which the infrastructure is situated.
(5) The
Registrar-General must, on an application by the relevant regional NRM board,
note an agreement under subsection (3) against the instrument of title for
the land where the infrastructure is situated or, in the case of land not under
the provisions of the Real Property Act 1886, against the land
where the infrastructure is situated.
(6) If
a note has been entered under subsection (5), an arrangement for access to
the relevant land is, despite the provisions of the Real Property
Act 1886, binding on each owner of the land from time to time and on
any occupier of the land.
(7) The
Registrar-General must, on the application of the relevant regional NRM board,
enter a note of any rescission or amendment of an agreement under
subsection (3) against the instrument of title, or against the land (but
must otherwise ensure that the note is not removed once made).
46—Appointment of body to act as a board
(1) The
Governor may, by regulations made on the recommendation of the Minister,
appoint a body specified in the regulations to be a regional NRM board under
this Act.
(2) The regulation must—
(a) identify
the NRM region in relation to which the body is appointed; and
(b) set
out the functions of the body (if any) that are in addition to the functions
prescribed by this Act.
(3) The
Governor may, by subsequent regulation made on the recommendation of the
Minister, vary or revoke a regulation under this section.
(4) A regulation revoking a regulation may
provide that the assets, rights and liabilities of the body that relate to its
functions under this Act will vest in or attach to—
(a) the
Crown; or
(b) a
Minister; or
(c) with
the agreement of the council or council subsidiary, a council or council
subsidiary; or
(d) any
other agency or instrumentality of the Crown; or
(e) any
other person or body.
(5) Division
4, Division 5, Division 6, Division 7 and Division 8, and the other provisions
of this Division, and any other provisions of this Act prescribed by the
regulations, apply to and in relation to a body appointed under this section as
if it were a regional NRM board, subject to such exclusions or modifications as
may be prescribed by the regulations.
(6) A
body appointed under this section is subject to direction by the Minister in
performing its functions and exercising its powers under this Act.
(7) If
a body appointed under this section has been established by or under another
Act and there is a conflict between a function of the body under that Act and a
function of the body when acting as a regional NRM board under this Act, the
body must perform its function under its originating Act in preference to its
function under this Act.
(8) If
a body must perform a function under subsection (7) in preference to a
function under this Act, the Chief Officer may, after consultation with the
Minister, perform the relevant function under this Act as if the Chief Officer
were constituted as a regional NRM board.
Division 1—Establishment of areas
(1) The
Minister may, by notice in the Gazette, designate an area as the area within
which an NRM group will operate.
(2) The Minister may, by subsequent notice in
the Gazette—
(a) vary
the boundaries of an area established under this section;
(b) abolish
an area established under this section.
(3) If
the Minister takes action under subsection (2) the Minister may, by notice
in the Gazette, make provision for the transfer, appointment or adjustment of
property, assets, rights, liabilities or expenses as between any specified NRM
authorities (and any such notice will have effect according to its terms and
despite any other Act, law, agreement or arrangement).
(4) Subsection (3)
does not limit or derogate from the powers of the Minister under another
section of this Act.
(5) The
Minister may only act under this section on the recommendation of, or after
consultation with, the relevant regional NRM board or boards.
(6) The
Minister must, before publishing a notice under subsection (1) or (2),
give any constituent council for the area notice of the Minister's intention to
publish a notice under the subsection and give consideration to any submission
made by the council within a period (being at least 21 days) specified in the
notice.
(7) The
Minister should normally act on the basis that the area of an NRM group will be
wholly within the region of 1 regional NRM board but the Minister may, if
the Minister considers that the particular circumstances justify so doing,
establish an area under this section that includes parts of the areas of 2 or
more regional NRM boards.
Division 2—Establishment of NRM groups
(1) The
Minister must, by notice in the Gazette, establish an NRM group for each area
established under Division 1.
(2) A notice under subsection (1) must—
(a) identify
the area in relation to which the NRM group is established; and
(b) assign
a distinctive name to the NRM group.
(3) The
Minister may, in a notice under subsection (1), limit or restrict the
functions or powers of an NRM group under this Act (and any such provision will
have effect according to its terms).
(4) The Minister may, by subsequent notice in
the Gazette—
(a) vary
a notice under this section (including by making a variation to any provision
of the notice that applies under subsection (3));
(b) abolish
an NRM group (on the basis that the relevant area is being abolished under
Division 1).
(5) A notice relating to an NRM group under
subsection (4) may provide that the property, assets, rights or liabilities of
the local NRM group will vest in or attach to—
(a) the
Crown; or
(b) a
Minister; or
(c) another
NRM authority; or
(d) any
other agency or instrumentality of the Crown; or
(e) with
the agreement of the relevant person or body, a person or body specified in the
notice,
(and any such notice will have effect according to its terms and
despite any other Act, law, agreement or arrangement).
(6) The
Minister may only act under this section on the recommendation of, or after
consultation with, the relevant regional NRM board or boards.
49—Corporate nature and responsibility at regional level
(1) An NRM group—
(a) is
a body corporate; and
(b) has
perpetual succession and a common seal; and
(c) can
sue and be sued in its corporate name; and
(d) is
an instrumentality of the Crown and holds its property on behalf of the Crown;
and
(e) has
the functions and powers assigned or conferred by or under this or any other
Act.
(2) If
a document appears to bear the common seal of an NRM group, it will be
presumed, in the absence of proof to the contrary, that the common seal of the
NRM group was duly fixed to the document.
(3) If the area of an NRM group lies wholly
within the region of 1 regional NRM board—
(a) that
board will be responsible for the NRM group; and
(b) the
NRM group is subject to direction by that board.
(4) If the area of an NRM group includes parts
of the regions of 2 or more regional NRM boards—
(a) after
taking into account the recommendations of the relevant boards, the Minister
will approve or, if necessary, determine, the extent to which each board will
be responsible for the activities of the NRM group (and for any associated
financial issues); and
(b) the
NRM group is subject to direction by each board to the extent to which the
board is responsible for the activities of the NRM group; and
(c) the
relevant boards must consult with each other to ensure that there is a
reasonable degree of co-ordination and co-operation between the boards with
respect to the activities of the NRM group.
(1) An
NRM group consists of up to 7 members appointed by the Minister, being persons
who collectively have, in the opinion of the Minister, knowledge, skills and
experience determined by the Minister to be necessary to enable the NRM group
to carry out its functions effectively.
(2) For the purposes of subsection (1),
the Minister must—
(a) consult
with the regional NRM board or boards that will have responsibility for the NRM
group as to the knowledge, skills and experience that should be represented on
the NRM group; and
(b) seek
nominations from that board or those boards.
(3) A regional NRM board must, before making a
nomination under subsection (2)(b)—
(a) place
a notice in a newspaper circulating generally throughout the relevant region
inviting expressions of interest for appointment to the NRM group within a
period prescribed by the regulations, and then take into account any such
expressions received within the relevant time; and
(b) consult
with any constituent council for its region that is also a constituent council
for the area of the NRM group.
(4) The
Chief Executive of the Department must ensure that a copy of a notice under
paragraph (a) of subsection (3) is published on the Department's website
within 2 business days after being published under that paragraph.
(5) The Minister should endeavour to ensure—
(a) that
a majority of the members of an NRM group reside within the relevant NRM region
or regions; and
(b) that
a majority of the members of an NRM group are engaged in an activity related to
the management of land.
(6) At
least 1 member of an NRM group must be a woman and at least 1 member must be a
man.
(7) The
Minister must appoint a suitable member of an NRM group to be the presiding
member of the group.
(8) The
Minister may appoint a suitable person to be the deputy of a member of an NRM
group.
(9) A
deputy may act as a member of an NRM group during any period of absence of the
member in relation to whom the deputy has been appointed.
(1) A
member of an NRM group will hold office on conditions determined by the
Minister for a term, not exceeding 4 years, specified in the instrument of
appointment and will, at the expiration of a term of office, be eligible for
reappointment.
(2) The Minister may remove a member of an NRM
group from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
mental or physical incapacity to carry out duties of office satisfactorily; or
(c) for
neglect of duty; or
(d) for
dishonourable conduct; or
(e) if
irregularities have occurred in the conduct of the NRM group's affairs or the
NRM group has failed to carry out its functions satisfactorily and the Minister
considers that the NRM group should be reconstituted for that reason.
(3) The office of a member of an NRM group
becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice addressed to the Minister; or
(d) is
found guilty of an indictable offence; or
(e) is
removed from office by the Minister under subsection (2).
A member of an NRM group is entitled to fees, allowances and
expenses determined by the Minister after consultation with the Commissioner
for Public Employment.
An act or proceeding of an NRM group is not invalid by reason only
of a vacancy in its membership, a defect in the appointment of a member or a
situation where all of the requirements of section 50(5) are not satisfied.
Division 4—Functions of NRM groups
(1) The functions of an NRM group are—
(a) to
be actively involved in the development and implementation of any relevant
regional NRM plan at the local level (to the extent specified or envisaged by
that plan or specified by the relevant board or boards); and
(b) to
develop, implement or participate in programs associated with natural resources
management at the local level; and
(c) to
promote public awareness of the importance of integrated and sustainable
natural resources management within its area and to undertake or support
educational initiatives with respect to natural resources management; and
(d) to
provide advice to regional NRM boards, and other bodies and agencies, with
respect to the assessment of various activities, proposals, situations or
circumstances within its area; and
(e) such
other functions prescribed by the regulations or assigned to the NRM group by
the Minister or a regional NRM board, or by or under this or any other Act.
(2) In performing its functions, an NRM group
should seek to work collaboratively with—
(a) any
other NRM groups whose areas adjoin its area; and
(b) other
State agencies and, if relevant, agencies of the Commonwealth, and agencies of
the other States and Territories; and
(c) the
constituent councils for the area of the NRM group, and other councils as may
be relevant; and
(d) relevant
industry, environment and community groups and organisations; and
(e) persons
who own or occupy land within the area of the NRM group (insofar as may be
relevant).
(3) An
NRM group will, with respect to the performance of its functions, report to the
regional NRM board or boards that have responsibility for the NRM group.
Division 5—Powers of NRM groups
(1) An NRM group has the power to do anything
necessary, expedient or incidental to—
(a) performing
the functions of the NRM group under this or any other Act; or
(b) assisting
in the administration of this Act; or
(c) furthering
the objects of this Act.
(2) Without limiting the operation of
subsection (1) (but subject to subsections (3) and (4)), an NRM group
may—
(a) enter
into any form of contract, agreement or arrangement; and
(b) acquire,
hold, deal with and dispose of real and personal property or any interest in
real or personal properly; and
(c) provide
for the care, control, management, conservation or preservation of any natural
resource; and
(d) assume
the care, control or management, or undertake the maintenance or repair of, any
infrastructure; and
(e) seek
expert, technical or other advice on any matter from any person or such terms
and conditions as the NRM group thinks fit; and
(f) carry
out projects; and
(g) act
in conjunction with any other authority or person.
(3) An NRM group must not, without the approval
of the Minister—
(a) undertake
an activity with the object (or principal object) of securing a profit; or
(b) participate
in any commercial or business activity.
(4) The
Minister may, after consultation with the relevant regional NRM board or
boards, by instrument in writing given to an NRM group, limit or regulate the
powers of the NRM group in any respect.
(5) A
regional NRM board may, by instrument in writing given to an NRM group, limit
or regulate the powers of the NRM group with respect to its activities within
the region of the board.
(6) Subject
to any direction by a regional NRM board, an NRM group may undertake activities
outside its area.
(7) In this section—
project includes any work, scheme, undertaking or other activity.
Division 6—Committees and delegations
(1) An NRM group—
(a) must
establish the committees required by the regulations, or by any regional NRM
board that has responsibility for the NRM group; and
(b) may
establish such other committees as the NRM group thinks fit,
to advise or assist the NRM group.
(2) A
committee established under subsection (1) may, but need not, consist of
or include members of the NRM group.
(3) The procedures to be observed in relation
to the conduct of the business of a committee will be—
(a) as
prescribed by regulation; or
(b) insofar
as the procedure is not prescribed by regulation—as determined by the NRM
group; or
(c) insofar
as the procedure is not dealt with above—as determined by the committee.
(4) An
NRM group must, in acting under this section, comply with any guidelines issued
by the Minister for the purposes of this section.
(1) An
NRM group may delegate to a body or person (including a person for the time
being holding or acting in a specified office or position) a function or power
of the NRM group under this or any other Act.
(2) An
NRM group may only make a delegation to a council or council subsidiary, or to
an officer of a council or a council subsidiary, under this section with the
approval of the council or council subsidiary (as the case requires).
(3) A delegation under this section—
(a) must
be by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the ability of the NRM group to act in any matter; and
(d) is
revocable at will.
(4) A
function or power delegated under this section may, if the instrument of
delegation so provides, be further delegated.
Division 7—Accounts, audit and reports
(1) An
NRM group must cause proper accounts to be kept of its financial affairs and
must cause financial statements to be prepared in respect of each financial
year.
(2) The
Auditor-General may at any time, and must in respect of each financial year,
audit the accounts and financial statements required under subsection (1).
(1) An
NRM group must, on or before 30 September in every year, provide to the
regional NRM board or boards that have responsibility for the NRM group a
report on its activities for the financial year ending on the preceding 30 June
(and need not provide a report under section 6A of the Public Sector
Management Act 1995).
(2) The report must—
(a) include
a copy of the audited accounts and financial statements of the NRM group; and
(b) include
other information required by or under the regulations.
(1) The
Minister or a regional NRM board may, by written notice to an NRM group,
require the NRM group to provide to the Minister or the regional NRM board,
within a period stated in the notice or at stated intervals, any report or
reports relating to the performance, exercise or discharge of its functions,
powers or responsibilities, as the Minister or the regional NRM board (as the
case may be) thinks fit.
(2) If
a requirement is imposed under subsection (1), the NRM group must cause a
statement of the fact of the imposition of the requirement to be published in
its next annual report.
The Minister or a regional NRM board may provide staff to assist
an NRM group in the performance of its functions.
An NRM group may, by arrangement with the
relevant body, make use of the services of the staff, equipment or facilities
of—
(a) an
administrative unit in the Public Service; or
(b) a
public authority.
63—Appointment of body to act as group
(1) The
Governor may, by regulations made on the recommendation of the Minister,
appoint a body specified in the regulations to be an NRM group under this Act.
(2) The regulation must—
(a) identify
the area in relation to which the body is appointed; and
(b) set
out the functions of the body (if any) that are in addition to the functions
prescribed by this Act.
(3) The
Governor may, by subsequent regulation made on the recommendation of the
Minister, vary or revoke a regulation under this section.
(4) A regulation revoking a regulation may
provide that the assets, rights and liabilities of the body that relate to its
functions under this Act will vest in or attach to—
(a) the
Crown; or
(b) a
Minister; or
(c) with
the agreement of the council or council subsidiary, a council or council
subsidiary; or
(d) any
other agency or instrumentality of the Crown; or
(e) any
other person or body.
(5) Division
4, Division 5, Division 6 and Division 7, and the other provisions of this
Division, and any other provisions of this Act prescribed by the regulations,
apply to and in relation to a body appointed under this section as if it were
an NRM group, subject to such exclusions or modifications as may be prescribed
by the regulations.
(6) A
body appointed under this section is subject to direction by the Minister and
any relevant regional NRM board in performing its functions and exercising its
powers under this Act.
(7) If
a body appointed under this section has been established by or under another
Act and there is a conflict between a function of a body under that Act and a
function of the body when acting as an NRM group under this Act, the body must
perform its function under its originating Act in preference to its function
under this Act.
(8) The
Minister should consult with the relevant regional NRM board or boards before
making a recommendation to the Governor under subsection (1).
64—Regional NRM board may act as an NRM group
A regional NRM board may perform any function and exercise any
power of an NRM group under this Act as if it were an NRM group.
(1) The
Chief Executive of the Department will be the Chief Officer for the purposes of
this Act.
(2) The Minister may authorise a person to act
as the Chief Officer—
(a) during
a vacancy in the office of Chief Executive; or
(b) when
the Chief Officer is absent from, or unable to discharge, official duties.
(1) The functions of the Chief Officer are—
(a) to
assist the Minister in the administration of this Act and to provide advice to
the Minister on the enforcement of this Act; and
(b) to
undertake responsibility for the operations of State authorised officers under
this Act and to keep the operations of other authorised officers under review;
and
(c) such
other functions assigned to the Chief Executive by the Minister or by or under
this Act.
(2) The Chief Officer has the power to do
anything necessary, expedient or incidental to—
(a) performing
the functions of the Chief Officer under this Act; or
(b) furthering
the objects of this Act.
(1) The
Chief Officer may delegate to a body or person (including a person for the time
being holding or acting in a specified office or position) a function or power
of the Chief Officer under this Act.
(2) A delegation under this section—
(a) must
be made by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the ability of the Chief Officer to act in any matter; and
(d) is
revocable at will.
(3) A
function or power delegated under this section may, if the instrument of
delegation so provides, be further delegated.
(1) The
Minister may appoint a person to be a State authorised officer.
(2) An
appointment under this section may be made subject to such conditions or
limitations as the Minister thinks fit.
(3) Without
limiting subsection (2), the powers conferred on a State authorised
officer under this or any other Act may be exercised in the whole of the State
or such part or parts of the State as may be specified in the instrument of
appointment.
(4) A
State authorised officer is subject to direction by the Chief Officer.
(5) The
Minister may vary or revoke an appointment at any time.
69—Regional authorised officers
(1) Subject
to this section, a regional NRM board may, by instrument in writing, appoint a
person to be a regional authorised officer.
(2) The
Chief Officer may, by notice in writing addressed to a regional NRM board,
specify the qualifications or experience that a person must possess in order to
be appointed, or to remain, a regional authorised officer.
(3) The
Chief Officer may, by notice in writing addressed to the regional authorised
officer, place conditions or limitations on the ability of a regional
authorised officer to exercise a power under this or any other Act.
(4) The
Chief Officer must provide a copy of any notice under subsection (3) to
the relevant regional NRM board.
(5) Without
derogating from subsection (3), the powers conferred on a regional
authorised officer under this or any other Act may be exercised within the
region of the relevant regional NRM board or, if authorised or directed by the
Chief Officer, in any other region subject to any conditions or limitations
specified by the Chief Officer.
(6) An
appointment under this section may be made subject to such other conditions or
limitations as the relevant regional NRM board thinks fit.
(7) A
regional authorised officer is subject to direction by the regional NRM board.
(8) A
regional NRM board must, at the direction of the Chief Officer, appoint one or
more regional authorised officers, or additional regional authorised officers
(as the case requires).
(9) A
regional NRM board must, at the direction of the Chief Officer, revoke the
appointment of a particular regional authorised officer, and may in any event
revoke the appointment of a regional authorised officer at any time.
(10) A
regional NRM board may only appoint an officer of a council as an authorised
officer under this section with the agreement of the council.
(1) An authorised officer appointed under this
Act must be issued with an identity card—
(a) containing
the person's name and a photograph of the person; and
(b) stating
that the person is an authorised officer for the purposes of this Act.
(2) The
identity card must be issued as soon as is reasonably practicable after the
appointment is made (but an authorised officer is not prevented from exercising
powers under this Act just because an identity card is yet to be issued).
(3) An
authorised officer must, if requested to do so, produce evidence of his or her
appointment by showing a copy of his or her notice of appointment, or by
showing his or her identity card for inspection, before exercising the powers
of an authorised officer under this Act in relation to any person.
(4) For
the purposes of subsection (3), an authorised officer who produces a copy
of his or her notice of appointment is not required to produce an identity
card, and vice versa.
71—Powers of authorised officers
(1) An authorised officer may, as may reasonably
be required in connection with the administration, operation or enforcement of
this Act, at any reasonable time—
(a) enter
any place;
(b) inspect
any place, including the stratum lying below the surface of any land, and water
on or under any land, and inspect any works, plant or equipment;
(c) enter
and inspect any vehicle and for that purpose require a vehicle to stop, or to
be presented for inspection at a place and time specified by the authorised
officer, and board any vessel or craft;
(d) with
the authority of a warrant issued by a magistrate, or in circumstances in which
the authorised officer reasonably believes that immediate action is required,
use reasonable force to break into or open any part of, or anything in or on,
any place or vehicle;
(e) give
directions with respect to the stopping, securing or movement of a vehicle,
plant, equipment or other thing;
(f) require
a person apparently in charge of a vessel or craft to facilitate any boarding;
(g) bring
any equipment or other thing on to any land, and use that equipment or thing on
the land;
(h) take
measurements, including measurements of the flow of any water on or under any
land or relating to any change in any aspect of a natural resource;
(i) place any markers, pegs or other items or
equipment in order to assist in testing or monitoring;
(j) take
samples of any substance or thing from any place (including under any land), or
vehicle;
(k) with
the authority of a warrant issued by a magistrate, require any person to
produce specified documents or documents of a specified kind, including a
written record that reproduces in an understandable form information stored by
computer, microfilm or other process;
(l) with
the authority of a warrant issued by a magistrate, examine, copy or take
extracts from a document or information so produced or require a person to
provide a copy of any such document or information;
(m) take
photographs, films, audio, video or other recordings;
(n) examine
or test any vehicle, plant, equipment, fitting or other thing, or cause or
require it to be so examined or tested, or require its production for such
examination or testing;
(o) seize
and retain anything that the authorised officer reasonably suspects has been
used in, or may constitute evidence of, a contravention of this Act, or require
a person to surrender, either immediately or within a specified period and at a
specified place, anything held or maintained in contravention of this Act;
(p) without
limiting the operation of paragraph (o), if the authorised officer finds
any animals or plants that are being held or maintained contrary to any
requirement or provision of this Act, that are liable to be destroyed or
controlled under this Act, or that are prohibited from being in the State under
any other Act or law, seize and remove the animals or plants or take measures
for their destruction or control;
(q) require
a person who the authorised officer reasonably suspects has committed, is
committing or is about to commit, a contravention of this Act to state the
person's full name and usual place of residence and to produce evidence of the
person's identity;
(r) require
a person who the authorised officer reasonably suspects has knowledge of
matters in respect of which information is reasonably required in connection
with the administration, operation or enforcement of this Act to answer
questions in relation to those matters;
(s) give
directions reasonably required in connection with the exercise of a power
conferred by any of the above paragraphs or otherwise in connection with the
administration, operation or enforcement of this Act;
(t) require
a person holding or required to hold a permit, licence or other authority under
this Act, or acting in reliance of a permit, licence or other authority under
this Act, to produce immediately the permit, licence or authority for
inspection.
(2) Without
limiting subsection (1), an authorised officer may exercise a power under
this section for the purpose of determining whether a management agreement is
being, or has been, complied with.
(3) An authorised officer must not exercise a
power conferred by subsection (1) or (2) in respect of residential
premises (other than any vessel or craft) unless—
(a) the
authorised officer is a State authorised officer; and
(b) the
authorised officer—
(i) is acting on the authority of a warrant
issued by a magistrate; or
(ii) is
exercising the power in order to determine whether the conditions of a permit
or licence under this Act are being complied with; or
(iii) is
acting in a case where the authorised officer reasonably believes that the
circumstances require immediate action.
(4) An
authorised officer in exercising powers under this section may be accompanied
by such assistants as are reasonably required in the circumstances.
(5) An authorised officer may only use force to
enter any place or vehicle—
(a) on
the authority of a warrant issued by a magistrate; or
(b) if
the authorised officer believes, on reasonable grounds, that the circumstances
require immediate action to be taken.
(6) A magistrate must not issue a warrant under
subsection (5) unless satisfied that there are reasonable grounds to
believe—
(a) that
a contravention of this Act has been, is being, or is about to be, committed in
or on a place or vehicle; or
(b) that
something may be found in or on a place or vehicle that has been used in, or
constitutes evidence of, a contravention of this Act; or
(c) that
other circumstances require such action to be taken.
(7) An application for the issue of a warrant
under this section—
(a) may
be made either personally or by telephone; and
(b) must
be made in accordance with any procedures prescribed by the regulations.
(8) If
an authorised officer digs up any land under this section, the authorised
officer must, after taking such steps as the authorised officer thinks fit in
the exercise of powers under that subsection, insofar as is reasonably
practicable, take steps to ensure that the land is restored to such state as is
reasonable in the circumstances.
(9) If
any animal or plant is surrendered under subsection (1)(o) or seized or
removed under subsection (1)(p), the animal or plant may be destroyed or
disposed of in such manner as the Chief Officer approves if the Chief Officer
believes on reasonable grounds that such action should be taken.
(10) An
authorised officer may require an occupier of any land or a person apparently
in charge of any vehicle, plant, equipment or other thing to give to the
authorised officer or a person assisting the authorised officer such assistance
as is reasonably required by the authorised officer for the effective exercise
of powers conferred by this Act.
(11) If
a person gives assistance to an authorised officer as required under
subsection (10), the person must, if the person so requires, be reimbursed
in accordance with the regulations for any reasonable costs and expenses
incurred in giving the assistance.
(12) An
authorised officer must, in taking action under this section, have regard to
any request made by indigenous peoples that the authorised officer (or
authorised officers generally) not enter a specified area.
(13) An
authorised officer must, before exercising powers under this section in
relation to a person, insofar as is reasonably practicable, provide to the
person a copy of an information sheet that sets out information about the
source and extent of the authorised officer's powers under this section, and
about the action that may be taken against the person if the person fails to
comply with a requirement or direction of an authorised officer under this
section.
(14) For
the purposes of subsection (13), an information sheet is a
document approved by the Minister for the purposes of that subsection.
(15) Subsection (13)
does not apply in any circumstances of a prescribed class.
(16) If—
(a) an
authorised officer seizes or takes possession of an animal under this section;
and
(b) a
permit authorising the keeping of the animal is subsequently issued to a
person,
the reasonable costs and expenses in keeping the animal pending
its return may be recovered by the Chief Officer from the person to whom the
permit has been issued (and, if the Chief Officer so directs, the animal may be
retained by an authorised officer until those costs and expenses are paid).
(17) An
authorised officer may, if the authorised officer thinks fit, determine not to
seize something that the authorised officer suspects has been used in, or may
constitute evidence of, a contravention of this Act pending the outcome of any
proceedings or other process under this Act (and a decision not to exercise a
power of seizure does not prevent the institution of proceedings under this
Act).
72—Provisions relating to seizure
(1) If a thing has been seized under section
71(1)(o) or (p) the following provisions apply:
(a) the
thing must be held pending proceedings for an offence against this Act related
to the thing seized, unless the Chief Officer, on application, authorises its
release to the person from whom it was seized, or to any person who had legal
title to it at the time of its seizure, subject to such conditions as the Chief
Officer thinks fit (including conditions as to the giving of security for
satisfaction of an order under paragraph (b)(ii));
(b) if
proceedings for an offence against this Act relating to the thing are
instituted within the prescribed period after its seizure and the defendant is
convicted or found guilty of the offence, the court may—
(i) order that it be forfeited to the Crown; or
(ii) where
it has been released pursuant to paragraph (a)—order that it be forfeited
to the Crown or that the person to whom it was released or the defendant pay to
the Crown an amount equal to its market value at the time of its seizure, as
the court thinks fit;
(c) if—
(i) proceedings are not instituted for an
offence against this Act relating to the thing within the prescribed period
after its seizure; or
(ii) proceedings
have been so instituted and—
(A) the
defendant is found not guilty of the offence; or
(B) the
defendant is convicted or found guilty of the offence but no order for
forfeiture is made under paragraph (b),
then the person from whom the thing was seized, or any person with
legal title to it, is entitled to recover from the Crown (if necessary, by
action in a court of competent jurisdiction) the thing itself, or if it has
been damaged or destroyed, compensation of an amount equal to its market value at
the time of its seizure, unless possession of the thing is (or would be)
contrary to another provision of this Act;
(d) if—
(i) possession of the thing by the person from
whom the thing was seized is (or would be) contrary to another provision of
this Act; or
(ii) a
thing is not liable for forfeiture under a preceding paragraph and the Chief
Officer has, after taking reasonable steps in the circumstances, been unable to
return the thing to the person from whom it was received,
the Chief Officer may deal with or dispose of the thing in such
manner as the Chief Officer thinks fit.
(2) Subsection (1)
does not limit the operation of section 71(9).
(3) In subsection (1)—
the prescribed period means 12 months or such longer period as the ERD Court
may, on application by the Minister, allow.
73—Hindering etc persons engaged in the administration of this Act
(1) A person who—
(a) without
reasonable excuse hinders or obstructs an authorised officer or other person
engaged in the administration or enforcement of this Act; or
(b) fails
to answer a question put by an authorised officer to the best of his or her
knowledge, information or belief; or
(c) produces
a document or record that he or she knows, or ought to know, is false or
misleading in a material particular; or
(d) fails
without reasonable excuse to comply with a requirement or direction of an
authorised officer under this Act; or
(e) uses
abusive, threatening or insulting language to an authorised officer, or a
person assisting an authorised officer; or
(f) falsely
represents, by words or conduct, that he or she is an authorised officer,
is guilty of an offence.
Maximum penalty: $20 000.
(2) A person (other than an authorised officer)
who, without the permission of the Chief Officer, removes, destroys or
interferes with any marker, peg or other item or equipment placed under
section 71(1) by an authorised officer is guilty of an offence.
Maximum penalty: $10 000.
(1) A
person is not excused from a requirement under this Part to provide information
or answer questions, or to produce any document or record, on the ground that
the information, answer, document or record might incriminate the person of an
offence.
(2) However, any information or answer
furnished, or document or record produced, by a natural person in compliance
with such a requirement is not admissible in evidence against the person in
criminal proceedings other than—
(a) proceedings
for an offence with respect to false or misleading statements, information or
records; or
(b) proceedings
for an offence in the nature of perjury.
75—Offences by authorised officers
An authorised officer, or a person
assisting an authorised officer, who—
(a) addresses
offensive language to any other person; or
(b) without
lawful authority, hinders or obstructs or uses or threatens to use force in
relation to any other person,
is guilty of an offence.
Maximum penalty: $5 000.
(1) The
NRM Council must prepare and maintain a plan to be called the State Natural
Resources Management Plan.
(2) The
State NRM Plan is to set out principles and policies for achieving the objects
of this Act throughout the State.
(3) In connection with the operation of
subsection (2), the State NRM Plan must—
(a) —
(i) assess the state and condition of the
natural resources of the State; and
(ii) identify
existing and future risks of damage to, or degradation, of the natural
resources of the State; and
(iii) provide
for monitoring and evaluating the state and condition of the natural resources
of the State on an ongoing basis; and
(b) identify
goals, set priorities and identify strategies with respect to the management of
the natural resources of the State; and
(c) set
out or adopt policies with respect to the protection of the environment and the
interests of the community through the operation of this Act, including through
the control of pest species of animals and plants; and
(d) promote
the integrated management of natural resources; and
(e) include
or address other matters prescribed by the regulations or specified by the
Minister.
(4) The
State NRM Plan must take into account the provisions of the Planning Strategy
and may identify changes (if any) considered by the NRM Council to be desirable
to the Planning Strategy.
(5) The
State NRM Plan must also address, adopt or incorporate any plan, policy or
strategy specified by the Minister.
(6) The
NRM Council must review the State NRM Plan at least once in every 5 years.
(7) Subject to subsection (8) the NRM Council—
(a) may
amend the State NRM Plan at any time; and
(b) must
amend the State NRM Plan at the direction of the Minister.
(8) The NRM Council must, in relation to any
proposal to create or amend the State NRM Plan—
(a) prepare
a draft of the proposal; and
(b) take
reasonable steps to consult with—
(i) any Government Department or other agency
(including a Commonwealth Department or agency) that has a direct interest in
the matter; and
(ii) each
regional NRM board that has a direct interest in the matter; and
(iii) peak
bodies,
in relation to the proposal; and
(c) by
public notice, give notice of the place or places at which copies of the draft
are available for inspection (without charge) and purchase and invite
interested persons to make written representations on the proposal within a
period specified by the NRM Council.
(9) Subsection (8) does not apply in relation
to an amendment that is being made at the direction, or with the concurrence,
of the Minister—
(a) in
order to ensure that the State NRM Plan is consistent with any plan, policy or
strategy that—
(i) has been prepared, adopted or applied under
another Act; and
(ii) falls
within a class prescribed by the regulations for the purposes of this
provision; or
(b) in
order to ensure that the State NRM plan is consistent with any plan, policy or
strategy relevant to addressing an urgent situation that has arisen in relation
to the protection of any natural resource, or specific class of natural
resources, or in order to support the taking of urgent action to safeguard the
ecological, environmental, social or economic value of any natural resource, or
specified class of natural resources; or
(c) in
order to remove or replace information in the State NRM Plan that has been
superseded by information that is more reliable or accurate; or
(d) in
order to make a change of form (without altering the effect of an underlying
policy reflected in the State NRM Plan); or
(e) in
order to take action which is considered or accepted by the Minister to be—
(i) addressing or removing irrelevant material
or a duplication or inconsistency (without altering the effect of an underlying
policy reflected in the State NRM Plan); or
(ii) correcting
an error.
(10) The
State NRM Plan, and any amendment to the State NRM Plan (other than an
amendment made at the direction, or with the concurrence, of the Minister),
have no force or effect until adopted by the Minister.
(11) The NRM Council must—
(a) make
reasonable provision for the publication of the State NRM Plan; and
(b) ensure
that copies of the State NRM Plan are reasonably available for inspection
(without charge) and purchase by the public at a place or places determined by
the Minister; and
(c) ensure
that public notice is given of any amendment to the State NRM Plan within a
reasonable time after the amendment is made.
(12) The
State NRM Plan is an expression of policy and does not in itself affect rights
or liabilities (whether of a substantive, procedural or other nature).
(13) A
failure of the NRM Council to comply with a requirement of this section cannot
be taken to affect the validity of the State NRM plan, or any other plan or
instrument under this Act.
(14) In this section—
peak body means a body interested or involved in natural resource
management recognised by the Minister as a peak body for the purposes of this
section and includes the LGA and local government bodies nominated by the LGA
for the purposes of this section.
(1) A
regional NRM board must prepare and maintain a plan for the purposes of its
operations (a regional NRM plan).
(2) The
plan must be in a form determined or approved by the Minister.
(3) A plan must—
(a) include
information of a kind prescribed by the regulations as to—
(i) the natural resources within the relevant
region; and
(ii) the
state and condition of the natural resources within the relevant region, and
related trends; and
(iii) environmental,
social, economic and practical considerations relating to the use, management,
conservation, protection, improvement and, if relevant, rehabilitation, of the
natural resources within the relevant region; and
(iv) the
management of pest species of animals and plants; and
(v) other
prescribed matters; and
(b) include
information about the issues surrounding the management of natural resources at
the regional and local level, including information as to—
(i) methods for improving the quality or value
of natural resources within the relevant region, and the health of those
aspects of the environment that depend on those natural resources; and
(ii) methods
for the conservation, use or management of natural resources within the
relevant region; and
(iii) action
plans to ensure proper stormwater management and flood mitigation; and
(iv) arrangements
to ensure proper management of wetlands and estuaries, and marine resources,
with particular reference to the relationships between catchment, wetland,
estuarine and marine systems; and
(c) set
out the board's goals in relation to natural resources management and explain
how achievement of those goals will assist to achieve—
(i) the objects of this Act; and
(ii) if
the plan is to apply within a part of the Murray-Darling Basin, the objects of
the River Murray Act 2003 and the Objectives for a Healthy River
Murray under that Act; and
(d) set
out a scheme for the implementation of natural resources management programs
and policies in the areas in which the board has an interest, including—
(i) through NRM groups; or
(ii) by
working with, or engaging, councils or council subsidiaries, or other bodies or
groups (including community groups and volunteers); and
(e) set
out the method or methods that the board will use—
(i) to monitor the state and condition of
natural resources for the purposes of this Act, and related trends; and
(ii) to
assess the extent to which it has succeeded in implementing the plan, with
particular reference to the monitoring and evaluation of the effectiveness of
natural resources management programs and policies implemented at the regional
and local level; and
(iii) to
assess the extent to which the board has succeeded in achieving its goals; and
(f) identify
the changes (if any) considered by the board to be necessary or desirable to—
(i) a Development Plan under the Development
Act 1993; or
(ii) any
other statutory instrument, plan or policy (including subordinate legislation),
to further the objects of this Act and, insofar as the plan may
apply within a part of the Murray-Darling Basin, the objects of the River
Murray Act 2003 and the Objectives for a Healthy River Murray under
that Act; and
(g) identify
the changes (if any) considered by the board to be necessary or desirable to—
(i) any activity or practice of another person
or body; or
(ii) the
manner in which, or the means by which, any other person or body performs any
function or exercises any power,
to further the objects of this Act; and
(h) include—
(i) a strategic plan for the next ensuing 10
financial years; and
(ii) a
business plan for the next ensuing 3 years, which incorporates an
implementation program for the first of those years that includes—
(A) an
assessment of the staff and physical resources that the board expects to
require during the year; and
(B) an
assessment of the infrastructure and land that the board wishes to acquire
during the year; and
(C) information
on the funding and support that is expected to be provided to NRM groups during
the year, and on other areas of expenditure; and
(D) the
source of funds necessary to meet expenditure during the year, including by the
payment of an amount or the imposition of a levy under Chapter 5, and, if more
than one source, the proportion of the funds to be raised from each source; and
(i) if the source, or one of the sources, of
the board's funds is the recovery of an amount or the imposition of a levy (or
proposed levy) under Chapter 5—include an assessment of the expected social
impact of the imposition of any levy under that Chapter; and
(j) if
the plan proposes an amount to be recovered by a regional NRM levy under
Chapter 5 Part 1 Division 1—set out the basis of the levy that
will apply under section 97(3)(a) and include an explanation as to why
that particular basis has been chosen; and
(k) set
out the matters that the board will consider when exercising its power to grant
or refuse permits under Chapter 7 Part 2; and
(l) include
such other information or material contemplated by this Act or required by the
regulations.
(4) A
plan should be consistent with the State NRM Plan.
(5) A plan, when adopted, (and amendments made
to a plan when adopted) should, as far as practicable, be consistent with—
(a) any
relevant management plan under the Coast Protection Act 1972; and
(b) any
relevant Development Plan under the Development Act 1993 (subject
to any proposal to amend such a plan); and
(c) any
relevant environment protection policy under the Environment Protection
Act 1993; and
(d) any
relevant plan of management under the National Parks and Wildlife
Act 1972; and
(e) the
principles of clearance of native vegetation under the Native Vegetation
Act 1991 and any guidelines relating to the management of native
vegetation adopted by the Native Vegetation Council under that Act; and
(f) any
relevant policy relating to the administration or operation of a Mining Act
published for the purposes of this Chapter by notice in the Gazette by the
Minister for the time being administering that Act after consultation with the
Minister administering this Act; and
(g) such
other plans, policies, strategies or guidelines as are prescribed by the
regulations.
(6) The
board must inform the Minister of the inconsistencies (if any) between the plan
and plans, policies, strategies or guidelines referred to in
subsection (5).
(7) In addition, a plan must—
(a) address,
adopt or incorporate any plan, policy or strategy specified by the Minister or
the NRM Council; and
(b) address,
and be consistent with, any intergovernmental agreement specified by the
Minister.
(8) A
regional NRM board should, in preparing and reviewing its regional NRM plan,
give due consideration to the plans of other boards insofar as this may be
relevant to issues or activities under its plan.
(9) A
council or council subsidiary must, when performing functions or exercising
powers under the Local Government Act 1999 or any other Act, have
regard to any regional NRM plan that applies within the relevant area and in
particular must give consideration to the question whether it should implement
changes to the manner in which, or the means by which, it performs a function
or exercises a power or undertakes any other activity that has been identified
in the plan as requiring change.
Division 2—Water allocation plans
78—Preparation of water allocation plans
(1) A
regional NRM board must prepare a water allocation plan for each of the
prescribed water resources in its region.
(2) A
plan prepared by a regional NRM board under subsection (1) will be taken
to form part of the board's regional NRM plan (and procedures relating to the
preparation and adoption of the plan may (but need not) be undertaken in
conjunction with procedures for the preparation and adoption of that regional
NRM plan).
(3) A
water allocation plan may relate to more than one prescribed water resource.
(4) A water allocation plan must—
(a) include—
(i) an assessment of the quantity and quality
of water needed by the ecosystems that depend on the water resource and the
times at which, or the periods during which, those ecosystems will need that
water; and
(ii) an
assessment as to whether the taking or use of water from the resource will have
a detrimental effect on the quantity or quality of water that is available from
any other water resource; and
(b) provide
for the allocation (including the quantity of water that is to be available for
allocation) and use of water so that—
(i) an equitable balance is achieved between
environmental, social and economic needs for the water; and
(ii) the
rate of use of the water is sustainable; and
(c) assess
the capacity of the resource to meet the demands for water on a continuing
basis and provide for regular monitoring of the capacity of the resource to
meet those demands; and
(d) identify
and assess methods for the conservation, use and management of water in an
efficient and sustainable manner; and
(e) provide
for the transfer of, and other dealings with, water allocations; and
(f) specify
the applications for the transfer of a licence or the water allocation of a
licence (if any) in relation to which section 161 will apply; and
(g) to
the extent that the regional NRM plan does not so provide—
(i) set out the matters that the board will
consider when exercising its powers to grant or refuse permits under Chapter 7
Part 2; and
(ii) identify
the changes (if any) considered by the board to be necessary or desirable to—
(A) a
Development Plan under the Development Act 1993; or
(B) any
other statutory instrument, plan or policy (including subordinate legislation);
and
(h) include
such other information or material contemplated by this Act or required by the
regulations.
(5) The
plan should be consistent with the other parts of the regional NRM plan.
(6) If
the taking, or the taking and use, of water from a water resource has, or is
likely to have, a detrimental effect on the quantity or quality of water that
is available from another water resource, the water allocation plan for the
first mentioned resource must take into account the needs of persons and
ecosystems using water from the other resource as well as the needs of persons and
ecosystems using water from its own resource and may, to achieve an equitable
balance between competing interests, include provisions designed to prevent or
reduce those detrimental effects.
(7) If
the taking, or the taking and use, of water from a water resource affects, or
is likely to affect, the management of water in another water resource, the
water allocation plan for the second mentioned water resource may include
provisions relating to the taking, or the taking and use, of water from the firstmentioned water resource.
(8) A
water allocation plan may, in order to improve the management of a water
resource, change the basis on which water is allocated from the resource
notwithstanding that a consequential variation of a water licence to maintain
consistency with the plan results in a reduction or increase in the quantity of
water allocated by the licence.
Division 3—Preparation and maintenance of plans
This Division applies to a plan under Division 1 or Division 2.
(1) A
regional NRM board must, in relation to a proposal to create a plan, prepare a concept
statement.
(2) A concept statement must—
(a) set
out in general terms the proposed content of the plan; and
(b) specify
matters to be investigated by the board before preparation of a draft plan; and
(c) set
out the proposals (if any) for consultation on a draft plan (including
proposals for public consultation during preparation of a draft plan) that are
in addition to the requirements of this Act for consultation.
(3) Before preparing a concept statement the
board—
(a) must
consult with any NRM group that has a direct interest in the matter; and
(b) must,
if required by guidelines issued by the Minister for the purposes of this
section, reach agreement with the Minister as to the contents of the concept
statement.
(4) The concept statement must be referred for
comment to—
(a) if
the statement proposes that an amendment to a Development Plan under the Development
Act 1993 be considered, the Minister for the time being administering
that Act; and
(b) any
Government Department or other agency that has a direct interest in the
proposed plan; and
(c) the
NRM Council; and
(d) each
constituent council for the region; and
(e) the
public (by notice published in a newspaper circulating throughout the region).
(5) The
period for making comments under subsection (4) will be 6 weeks, or such
longer period as the board may allow, and the board must, at the conclusion of
that period, consider any relevant comments provided to the board within that
period.
(6) The
board may, as a result of any comments considered under subsection (5), or
in any event as it thinks fit, amend the concept statement.
(7) However,
if required by guidelines issued by the Minister for the purposes of this
section, the board must reach agreement with the Minister before it makes an
amendment to a concept statement under subsection (6).
(8) The
board must then ensure that the concept statement (as amended if the case
requires), and the results of any relevant investigations, are made available
to the public in the manner prescribed by the regulations.
81—Preparation of plans and consultation
(1) A
regional NRM board must prepare a draft plan based on the concept statement and
the results of the board's investigations.
(2) If the board has identified an amendment
that it considers to be necessary or desirable to a Development Plan under the Development
Act 1993, the board must—
(a) seek
and consider the advice of a person with qualifications prescribed for the
purposes of section 26(1) of the Development Act 1993; and
(b) consult
with the Minister for the time being administering the Development
Act 1993.
(3) If
the Minister consulted under subsection (2) agrees to the consideration of an
amendment to a Development Plan, the board may prepare a report in relation to
the proposed amendment and include the report in the draft plan.
(4) A
report under subsection (3) must comply with any requirement prescribed by the
regulations and be approved by the Minister consulted under subsection (2)
before it is included in the draft plan.
(5) The
board must also, during the preparation of the draft plan, take into account
any submissions made to the board by members of the public in relation to the
matter.
(6) When the draft plan is completed, the board
must—
(a) give
a copy of it to—
(i) the Minister; and
(ii) the
Minister for the time being administering the Development Act 1993;
and
(iii) any
Government Department or other agency that has a direct interest in the
proposed plan; and
(iv) the
NRM Council; and
(v) any
NRM group that has a direct interest in the proposed plan; and
(vi) each
constituent council for the region; and
(vii) if
the board proposes that land should be acquired in connection with the
implementation of the plan—the relevant owner or owners of land; and
(viii) if
the draft plan has any application with respect to the operations of SA Water—SA
Water; and
(ix) such
other persons or bodies as are prescribed by the regulations; and
(b) consult
the public in relation to the plan.
(7) The
Minister may require that the board obtain the approval of the Minister before
the board releases a draft plan under subsection (6).
(8) A
person or body (other than the Minister) to which a copy of a draft plan is
provided under subsection (6)(a) may prepare and furnish a response to the
board within the period prescribed by the regulations.
(9) The
board must consult with the public under subsection (6)(b) by inviting the
public to make written submissions to the board and to attend a public meeting
to be held in relation to the draft plan.
(10) An invitation under subsection (9) must
be by advertisement in—
(a) a
newspaper circulating generally throughout the State; and
(b) a
newspaper circulating throughout the board's region,
and in such other form (if any) prescribed by the regulations or
as the board thinks fit.
(11) An advertisement required under
subsection (10) must—
(a) identify
the relevant region; and
(b) with
respect to an invitation for submissions—state the name and address of the
person to whom submissions must be sent and the time by which submissions must
be received; and
(c) with
respect to an invitation to attend a public meeting—state the time and place at
which the meeting will be held; and
(d) include
an address at which copies of the plan may be inspected and purchased.
(12) Written
submissions must be made to the board by a date specified by the board (being a
date that is at least 2 months after the first publication of an invitation
under subsection (10)(a)).
(13) A public meeting—
(a) will
be held on a date specified by the board (being a date that is at least 14 days
after the first publication of an invitation under subsection (10)(a));
and
(b) must
be held at a time and place that will, in the opinion of the board, be
reasonably convenient for a majority of those persons who are likely to attend
the meeting.
(14) The
board must appoint a suitable person to conduct a public meeting.
(15) A
person who has conducted a public meeting must, as soon as practicable after
the meeting has concluded, submit a written report to the board summarising the
comments made at the meeting by members of the public in relation to the draft
plan.
(16) The
board must, after complying with the requirements of the preceding subsections,
prepare a report on the matters raised during consultation on the draft plan and
on any recommended alterations to the plan.
(17) A
report under subsection (16) must comply with any requirements prescribed
by the regulations.
(18) The
board must furnish the report prepared under subsection (16) to the
Minister.
82—Submission of plan to Minister
(1) On
the receipt of a draft plan and report under section 81(18), the Minister
must consult with the NRM Council, and may consult with such other persons or
bodies as the Minister thinks fit.
(2) The
Minister must also, in considering a draft plan under this section, have regard
to the submissions (if any) received from members of the public and to the
reports of the person or persons who conducted any public meeting.
(3) After complying with the requirements of
subsections (1) and (2), the Minister may—
(a) adopt
the plan with or without amendment; or
(b) refer
the plan back to the board for further consideration.
(4) If the Minister adopts the plan with
amendment, the Minister must give—
(a) a
copy of the plan as amended; or
(b) if
it appears to the Minister that the part or parts of the plan that have been
amended can conveniently be substituted in the draft plan—a copy of that part
or those parts as amended,
to the board and to each constituent council.
(5) If
the Minister refers the plan back to the board, it must prepare a new draft
plan and follow the procedures as to consultation provided for by this Part in
respect of the new draft.
(6) The
Minister adopts a plan by signing a certificate endorsed on the plan that the
Minister has adopted the plan.
(7) If
a plan provides that the whole or part of the funds required for implementation
of the plan should comprise an amount to be raised under Chapter 5 (in this
section referred to as a levy proposal) the Minister must, within
7 days after adopting the plan, refer the plan to the Natural Resources
Committee of Parliament.
(8) The Natural Resources Committee must, after
receipt of a plan under subsection (7)—
(a) resolve
that it does not object to the levy proposal; or
(b) resolve
to suggest amendments to the levy proposal; or
(c) resolve
to object to the levy proposal.
(9) If,
at the expiration of 28 days from the day on which the plan was referred to the
Natural Resources Committee, the Committee has not made a resolution under
subsection (8), it will be conclusively presumed that the Committee does not
object to the levy proposal and does not propose to suggest any amendments to
it.
(10) If an amendment is suggested under
subsection (8)(b)—
(a) the
Minister may make the suggested amendment; or
(b) if
the Minister does not make the suggested amendment, the Minister must report
back to the Committee that he or she is not willing to make the amendment
suggested by the Committee (in which case the Committee may resolve that it
does not object to the levy proposal as originally adopted, or may resolve to
object to the proposal).
(11) The
Minister must act under subsection (10) within 28 days after receiving the
suggested amendment from the Committee.
(12) If
the Natural Resources Committee resolves to object to a levy proposal, the
Presiding Member of the Committee must ensure that a copy of the plan is laid
before the House of Assembly.
(13) If
the House of Assembly passes a resolution disallowing the levy proposal of a
plan laid before it under subsection (12), the levy proposal ceases to have
effect.
(14) A
resolution is not effective for the purposes of subsection (13) unless passed
in pursuance of a notice of motion given within 14 sitting days (which need not
fall within the same session of Parliament) after the day on which the plan was
laid before the House of Assembly.
(15) If
a resolution is passed under subsection (13), notice of the resolution must
forthwith be published in the Gazette.
(16) In addition to the preceding subsections,
the Minister must, in considering whether to adopt a draft plan that provides
for an amendment to a Development Plan under the Development Act 1993—
(a) consult
with the Minister for the time being administering the Development Act 1993;
and
(b) seek
and consider the advice of a person with qualifications prescribed for the
purposes of section 26(1) of the Development Act 1993; and
(c) to
the extent that consultation is not covered by section 80(4)(d), consult
with any council whose area would be affected by the proposed amendment.
(17) Subject
to subsection (18), in a case where subsection (16) applies the Minister
is not to proceed to adopt the draft plan without the concurrence of the
Minister for the time being administering the Development Act 1993.
(18) If
the Minister administering the Development Act 1993 refuses to
grant his or her concurrence, the Minister for the time being administering
this Act may remove the proposed amendment from the draft plan and then proceed
to adopt the draft plan without that amendment.
(19) If
a draft plan is adopted in accordance with subsection (18), the Minister
for the time being administering the Development Act 1993 must
under section 29 of that Act amend the Development Plan in the manner
contemplated by the plan.
83—Review and amendment of plans
(1) A
regional NRM board may initiate procedures to amend a plan at any time but in
any event must review its business plan annually.
(2) A
board must, in relation to the annual review of its business plan required by
subsection (1), amend the plan so that it specifies the next ensuing 3
financial years as the period to which its business plan relates.
(3) A
board may also, in connection with the annual review of its business plan
required under subsection (1), propose amendments (if any) that are
required for consistency with the State NRM Plan and may, as it thinks fit,
propose such other amendments to the plan that the board considers to be
necessary or desirable in the circumstances.
(4) A
regional NRM board must review its entire regional NRM plan at least once
during each period of 5 years following adoption of the plan.
(5) When
reviewing a plan, a board must have regard to any relevant report of the NRM
Council relating to the board.
(6) Subject
to subsections (7) and (9) and to Division 4, the procedures prescribed by
or under this Division for the preparation and adoption of the original plan
must be followed when a plan is amended under this section.
(7) Subject to subsections (10) and (11), if
the only amendments to a regional NRM plan are within the ambit of
subsection (8), it is not necessary to follow the procedures referred to
in subsection (6) if—
(a) a
board—
(i) publishes a copy of the proposed amendments
in a newspaper circulating in the board's region together with a notice
inviting members of the public to provide it with written submissions in
relation to the proposed amendments within the prescribed period (being a period
of at least 21 days); and
(ii) in
a case where an amendment proposes that funds should include an amount to be
recovered by a levy under Chapter 5 Part 1 Division 1—takes
reasonable steps to consult with any constituent council in relation to the
proposed amendment within the prescribed period (being a period of at least 21
days); and
(b) the
board forwards copies of any submissions received by it during the prescribed
period to the Minister; and
(c) the
Minister has regard to those submissions before adopting the amendment.
(8) The following amendments are within the
ambit of this subsection:
(a) amendments
to the information included in a plan under section 77(3)(a);
(b) amendments
to a plan that are within the ambit of subsection (2), or that otherwise
relate to a matter included in a plan under section 77(3)(h), (i), (j) or (k) (including a proposal for the payment of an
amount or the imposition of a levy under Chapter 5);
(c) without
limiting a preceding paragraph, amendments to include new, additional or
increased expenditure on a program or programs to address salinity levels at a
particular place or within a particular area, and any associated amendments
that relate to the imposition of a levy under Chapter 5;
(d) without
limiting a preceding paragraph, amendments to address an urgent situation that
has arisen in relation to the protection of any natural resource, or specific
class of natural resources, within the region, or a part of the region, or in
order to take urgent action to safeguard the ecological, environmental, social
or economic value of any such natural resource or class of natural resources;
(e) amendments
of a class prescribed by the regulations.
(9) The
regulations may modify or exclude any of the procedures referred to in subsection (6)
for the purposes of considering and making amendments to a plan.
(10) If—
(a) an
amendment proposes—
(i) that funds should now comprise or include
an amount to be raised or recovered by a levy under Chapter 5 Part 1 Division 1
or 2; and
(ii) such
a levy has not been imposed in the financial year immediately preceding the
financial year in which the levy is to be imposed; or
(b) an
amendment proposes—
(i) that a levy under Chapter 5 Part 1 Division
1 or 2 imposed in one financial year be again imposed in the next financial
year; and
(ii) that
the amount to be raised or recovered by the levy in the next financial year
will be an amount that exceeds the amount raised for the last financial year
adjusted to take into account increases (if any) in the CPI during the 12
months ending on 30 September in that last financial year,
the procedures set out in section 82(7) to (15) must be followed
when the plan is amended.
(11) A
regulation under subsection (8)(e) must not relate to the amendment of a
water allocation plan.
(12) The
Minister may adopt an amendment to a regional NRM plan under
subsection (7) with or without amendment.
(13) If
the Minister adopts an amendment with an amendment, the Minister must give a
copy of the amendment as amended to the board and to each constituent council.
84—Time for implementation of plans
(1) Subject
to this section, a plan cannot be implemented unless or until it has been
adopted by the Minister.
(2) A
draft plan or amendments to a plan that have not been adopted by the Minister
may be implemented by the regional NRM board with the consent of the Minister
and the constituent councils and, in the case of a plan referred to in
subsection (3), the consent of the Minister for the time being
administering the Waterworks Act 1932.
(3) The
consent of the Minister for the time being administering the Waterworks
Act 1932 is required if, in the opinion of the Minister for the time
being administering this Act, implementation of the plan or the amendments
under subsection (2) would affect the quality or quantity of water flowing
into the waterworks under the Waterworks Act 1932.
(4) If
the Minister and the Minister for the time being administering the Waterworks
Act 1932 cannot reach agreement for the purposes of
subsection (3), the Minister may take steps to refer the matter to the
Governor and the Governor will determine the matter (and any decision taken by
the Governor will be taken to be a decision of both Ministers for the purposes
of this section).
85—Availability of copies of plans etc
(1) A regional NRM board must make—
(a) each
plan; and
(b) all
submissions made in respect of a draft plan in accordance with the consultation
procedures under this Part; and
(c) such
other documents as are prescribed by regulation,
available for inspection and purchase by members of the public.
(2) A
board must not charge for inspection of a document referred to in
subsection (1) and must not charge more than the fee prescribed by the
regulations for sale of copies of a document referred to in
subsection (1).
86—Time for preparation and review of plans
(1) The
initial regional NRM plan prepared by a regional NRM board need not satisfy all
the requirements of this Act but the board must bring it into a form that
satisfies those requirements by an amendment, or series of amendments, or must
substitute a comprehensive plan that satisfies those requirements as soon as
practicable.
(2) If,
in the opinion of the Minister, the scope of an initial plan will be so limited
that no useful purpose will be served by the preparation of a concept statement
or by the public and other consultation required by this Act, the Minister may
dispense with the requirements for the concept statement and consultation in
relation to the preparation and adoption of that plan.
(3) A
board should undertake the annual review of its plan within sufficient time to
allow the amendments and procedures relating to amendments required by this Act
to be completed before the commencement of the next financial year.
This Division applies to a plan under Division 1 or 2.
(1) A
plan, or a provision of a plan, is not invalid because it is inconsistent with
the State NRM Plan.
(2) A
failure of a regional NRM board to comply with a requirement of this Part
cannot be taken to affect the validity of a plan, or any other instrument under
this Act.
89—Promotion of River Murray legislation
To the extent that a plan applies to the
Murray-Darling Basin or in relation to the River Murray, the plan should—
(a) seek
to further the objects of the River Murray Act 2003 and the Objectives
for a Healthy River Murray under that Act; and
(b) be
consistent with the terms or requirements of the Agreement approved under the Murray-Darling
Basin Act 1993, and any relevant resolution of the Ministerial Council
under that Agreement approved under that Act,
(insofar as they may be relevant).
90—Associated Ministerial consents
(1) Subject
to subsection (4), if in the opinion of the Minister the implementation of
a plan would affect the quality or quantity of water flowing into the
waterworks under the Waterworks Act 1932, the Minister must not
adopt the plan without the consent of the Minister for the time being
administering that Act.
(2) Subject
to subsection (4), if in the opinion of the Minister the implementation of
a plan would adversely affect any native animal or native plant that is subject
to any form of control under the National Parks and Wildlife Act 1972,
the Minister must not adopt the plan without the consent of the Minister for
the time being administering that Act.
(3) Subject
to subsection (4), if in the opinion of the Minister the implementation of
a plan would result in the clearance of any native vegetation, the Minister
must not adopt the plan without the consent of the Minister for the time being
administering the Native Vegetation Act 1991.
(4) If
the relevant Ministers cannot reach agreement on a plan under
subsection (1), (2) or (3), the Minister administering this Act may adopt
the plan with the consent of the Governor.
91—Amendment of plans without formal procedures
(1) A regional NRM board may amend a plan in
order—
(a) to
correct an error in the plan; or
(b) to
achieve consistency with any other plan under this Act; or
(c) to
make a change of form (not involving a change of substance) in the plan,
without following the procedures for amendment required by
Division 3.
(2) The Minister may amend a plan in order—
(a) to
take action which, in the opinion of the Minister, is addressing—
(i) an unfair, inappropriate or unsustainable
assumption or position contained or reflected in the plan; or
(ii) a
matter that is, or that is based on, a mistake of fact; or
(b) to
further the objects of the River Murray Act 2003, or the Objectives
for a Healthy River Murray under that Act; or
(c) to
achieve greater consistency with the terms or requirements of the Agreement
under the Murray-Darling Basin Act 1993, or any resolution of the
Ministerial Council under that Agreement,
without following procedures for amendment under Division 3 if the
Minister certifies, at the time of making the amendment, that the amendment is
not to be used to effect a reduction in existing water allocations of the
licences affected by the plan.
92—Plans may confer discretionary powers
A plan may confer discretionary powers.
93—Effect of declaration of invalidity
If a part of a plan is found to be invalid—
(a) the
balance of the plan may nevertheless continue to have full force and effect;
and
(b) if
the part that is found to be invalid arises from, or is attributable to, an
amendment (or purported amendment) to the plan then the amendment (or purported
amendment) will, to the extent of the invalidity, be disregarded and the plan
will, to that extent, revert to the position that applied immediately before it
was sought to give the amendment (or purported amendment) effect.
Chapter 5—Financial provisions
Division 1—Levies in respect of land
94—Contributions by constituent councils
(1) If
the regional NRM plan for a regional NRM board specifies an amount (the base
contribution amount) to be contributed by the constituent councils for
the region towards the costs of the board performing its functions under this
Act in a particular financial year, the constituent councils are responsible to
make a contribution based on that amount in accordance with the requirements of
this Part in respect of that financial year.
(2) Subject to subsection (3), liability for
the amount to be contributed by constituent councils will be shared between
them—
(a) if
the levy under section 97 is based on the value of rateable land—
(i) unless subparagraph (ii) or (iii) applies,
in the proportions that the capital value of the rateable land in the relevant
NRM region is distributed amongst the areas of the councils (this subparagraph
applies despite the fact that an individual council uses a different basis to
impose its levy—see section 97(3)(b));
(ii) if
all of the constituent councils base their general rates on the site value of
land—in the proportions that the site value of the rateable land in the
relevant NRM region is distributed amongst the areas of the councils;
(iii) if
all of the constituent councils base their general rates on the annual value of
land—in the proportions that the annual value of the rateable land in the
relevant NRM region is distributed amongst the areas of the councils;
(b) if
the levy is a fixed amount on all rateable land—in proportion to the number of
rateable properties situated in the area of each council (being properties that
are also situated in the relevant NRM region);
(c) if
the levy is a fixed amount that depends on the purpose for which rateable land
is used—in proportion to the number of rateable properties used for each
relevant purpose that are in the area of each council and are also in the
relevant NRM region;
(d) if
the levy is based on the area of rateable land—in the proportions that the area
of the rateable land in the relevant NRM region is distributed amongst the
areas of the councils;
(e) if
the levy is based on the purpose for which rateable land is used and the area
of rateable land—in the proportions that the area of the rateable land in the
relevant NRM region that is used for each purpose is distributed amongst the
areas of the councils;
(f) if
the levy is based on the location of rateable land—in proportion to the number
of rateable properties situated within the location or locations in the area of
each council (being properties that are also situated in the relevant NRM
region).
(3) The
Minister may, in connection with the operation of subsection (2),
determine that there should be differentiating factors applied with respect to
the calculation of the respective shares of the constituent councils taking
into account any matter prescribed by the regulations and make adjustments to
the shares that the constituent councils would otherwise contribute on the
basis of those factors.
(4) The
share of each council will be determined by the Minister after consultation
with the council.
(5) A
council must, at the request of the Minister, supply the Minister with
information in the possession of the council to enable the Minister to
determine shares under subsections (2) and (3).
(6) The
Minister must, after making a determination of the share of each council taking
into account all of the matters referred to above, submit the amount to be
contributed by each council to the Governor for approval.
(7) The
Minister must cause notice of the determination of a council's share to be
given to the council and to be published in the Gazette.
(8) A
regulation cannot be made for the purposes of this section unless the Minister
has given the LGA notice of the proposal to make a regulation under this
section and given consideration to any submission made by the LGA within a period
(of at least 21 days) specified by the Minister.
(9) In this section—
rateable land means rateable land under the Local Government Act 1999.
95—Payment of contributions by councils
(1) Subject
to subsection (2), a council's share of the amount to be contributed by the
constituent councils is payable by the council in approximately equal
instalments on 30 September, 31 December, 31 March and 30 June in the year to
which the contribution relates and interest accrues on any amount unpaid at the
rate and in the manner prescribed by regulation.
(2) If
notice of a regional NRM levy imposed by a council in respect of a financial
year could not be included in the notice of general rates for that year because
the share to be contributed by the council was not approved by the Governor on
or before 1 June preceding that year, the council may pay its share in
approximately equal instalments on 31 December, 31 March and 30 June in that
year.
(3) An
amount payable by a council to a regional NRM board under this section and any
interest that accrues in respect of that amount is recoverable by the board as
a debt.
96—Funds may be expended in subsequent years
To avoid doubt, if an amount paid by a council under this Division
is not spent by a regional NRM board in the financial year in respect of which
it was paid, it may be spent by the board in a subsequent financial year.
97—Imposition of levy by councils
(1) In
order to reimburse themselves for the amounts contributed (or to be
contributed) to a regional NRM board under this Division, the constituent
councils must impose a levy (a regional NRM levy) on rateable
land in the region of the board.
(2) Except
to the extent that the contrary intention appears, Chapter 10 of the Local
Government Act 1999 applies to and in relation to a regional NRM levy
as if it were a separate rate under that Chapter.
(3) Without limiting the operation of any other
provision of this Act, the following provisions apply with respect to the
application of Chapter 10 of the Local Government Act 1999 to and
in relation to a regional NRM levy:
(a) section
154(1), (2) and (3) of that Act will not apply in relation to the levy and the
basis for the levy will be chosen from the following (as set out in the
relevant regional NRM plan):
(i) the value of rateable land; or
(ii) a
fixed charge of the same amount on all rateable land; or
(iii) a
fixed charge of an amount that depends on the purpose for which rateable land
is used; or
(iv) the
area of rateable land; or
(v) the
purpose for which rateable land is used and the area of the land; or
(vi) the
location of rateable land;
(b) if
the value of rateable land is the basis for the levy under paragraph (a), a
council must use capital value, site value or annual value as the basis to
impose the levy;
(c) if
a fixed charge is the basis for the levy under paragraph (a), then section 152
of that Act will apply subject to any modifications prescribed by the
regulations;
(d) if
relevant, the purposes for which land is used that may be the basis for the
levy under paragraph (a) will be purposes prescribed by the regulations;
(e) despite
section 154(6) of that Act, a levy under this section may be declared more than
1 month before the commencement of a financial year to which the levy relates
with the approval of the Minister;
(f) section
151(5) of that Act will not apply in relation to the levy;
(g) section
156 of that Act will apply (subject to the use of any differentiating factor
under paragraph (a));
(h) any
other section, or part of any other section, of that Act prescribed by the
regulations will not apply in relation to the levy;
(i) the regulations may modify the operation of
Chapter 10 of that Act in any other respect.
(4) To
avoid doubt, nothing in subsection (3) prevents the operation of section 158 of
the Local Government Act 1999.
(5) A
council must (as far as is reasonably practicable) fix a regional NRM levy in a
manner calculated to return the same amount as the council's share of the
amount to be contributed to the relevant regional NRM board under this
Division.
(6) A
regional NRM levy imposed under this section will be taken to be a rate imposed
under the Local Government Act 1999 for the purposes of the Rates
and Land Tax Remission Act 1986.
(7) The
amount that applies under subsection (5) will be arrived at after taking
into account any rebates or remissions to be granted by the council.
(8) A
regional NRM levy is not invalid because it raises more or less than the amount
that applies under subsection (5).
(9) A
regulation cannot be made for the purposes of this section unless the Minister
has given the LGA notice of the proposal to make a regulation under this
section and given consideration to any submission made by the LGA within a
period (of at least 21 days) specified by the Minister.
(1) A
regional NRM board is liable to pay to each of the constituent councils for the
region an amount determined in accordance with the regulations on account of
the costs of the council in complying with the requirements of this Part.
(2) Regulations made for the purposes of subsection
(1) may—
(a) provide
a method or methods by which a council's costs are to be determined, including
by the use of estimates or prescribed amounts in prescribed circumstances;
(b) limit
any calculation of costs to amounts prescribed as fair costs;
(c) take
into account any financial benefit to a council in receiving payment of a
regional NRM levy before it pays its share of the amount to be contributed to
the board under this Division.
(3) A
payment under subsection (1) must be paid in accordance with the
regulations.
(4) A
regulation cannot be made for the purposes of this section unless the Minister
has given the LGA notice of the proposal to make a regulation under this
section and given consideration to any submission made by the LGA within a period
(of at least 21 days) specified by the Minister.
(1) If
the regional NRM plan for a regional NRM board specifies an amount to be
contributed by persons who occupy land outside council areas towards the costs
of the board performing its functions under this Act in a particular financial
year, the Minister may, with the approval of the Governor, by notice in the
Gazette, declare a levy under this section.
(2) A
levy declared by the Minister under this section must be set at a level that
will return an amount that is as near as reasonably practicable to the amount
stated in the relevant regional NRM plan as the amount to be raised by the
particular levy under this section, after taking into account any remissions
that may apply under this section.
(3) A
levy is not invalid because it raises more or less than the amount referred to
in subsection (2).
(4) Subject
to this section, a levy will be declared with respect to land within the
relevant area (to be called rateable land for the purposes of
this section).
(5) The
regulations may exclude land, or land of a prescribed class, from the operation
of this section.
(6) A levy may be based on 1 of the following
factors:
(a) the
capital value of rateable land;
(b) a
fixed charge of the same amount on all rateable land within the relevant area;
(c) a
fixed charge of an amount that depends on the purpose for which rateable land
is used;
(d) the
area of rateable land;
(e) the
purpose for which rateable land is used and the area of the land;
(f) any
other factor prescribed by the regulations.
(7) The
purposes for which land is used that may be the basis for the levy under
subsection (6) must be prescribed by regulation.
(8) Differential
levies may be declared on any basis prescribed by the regulations.
(9) The
Minister may, in declaring a levy, fix a minimum amount payable by way of a
levy under this section (despite a preceding subsection).
(10) Subject
to subsection (11), the occupier of rateable land is liable to pay a levy
declared under this section.
(11) If
a person other than the occupier of rateable land has, by notice to the
Minister in a manner and form determined by the Minister, assumed liability to
pay a levy under this section, that person will be liable to pay the levy.
(12) The
Minister must as soon as reasonably practicable after the declaration of a levy
under this section cause a notice of the amount of the levy that is payable in
respect of any land for the relevant financial year to be served on the person
liable to pay the levy.
(13) The notice must state—
(a) the
amount of the levy payable; and
(b) the
factor on which the levy is based and, if it is a differential levy, the
differential basis; and
(c) the
date on or before which the levy must be paid or, if the Minister is prepared
to accept payment in instalments, the amount of each instalment and the date on
or before which it must be paid.
(14) If
there are 2 or more occupiers of land, service of a notice on 1 of them will be
taken to be service on both or all of them.
(15) The Minister may—
(a) arrange
for service of a notice to be effected as part of any other notice served by a
public authority or other person;
(b) arrange
for collection of a levy to be effected by a public authority or other person.
(16) The Governor may, by regulation—
(a) make
other provisions for the collection of the levy (including by making provision
for regional NRM boards to pay to the Minister the costs incurred by the
Minister with respect to the collection of a levy under this section);
(b) grant
remissions in respect of the levy, or a part of the levy;
(c) provide
for such other matters as the Governor thinks fit.
100—Contributions towards work of NRM groups
For the purposes of this Division, any money that under a regional
NRM plan is to be raised for the purposes of NRM groups established within the
relevant NRM region will be taken to form part of the costs of the relevant
regional NRM board performing its functions under this Act.
To avoid doubt, nothing in this Division prevents any levy raised
in one part of the State being applied by a regional NRM board or NRM group in
another part of the State in accordance with the provisions of an NRM plan.
Division 2—Levies in respect of water
(1) In this Division, unless the contrary
intention appears—
accounting period means a financial year, or part of a financial year, in
respect of which a levy is payable under this Division in accordance with a
notice served under section 107;
consumption period in relation to an accounting period means a period of
approximately the same length as the accounting period that commences or
terminates during the accounting period and in respect of which the quantity of
water taken is measured by meter readings;
imported water permit means a permit required under section 129(3)(e) with
respect to the use of water in the circumstances described in section 129(4)(i);
to irrigate land includes to water land by any means for the purpose of growing
any kind of plant or plants;
levy includes—
(a) an
instalment of a levy; and
(b) a
fee payable to the Minister under section 104(5).
(2) For
the purposes of this Division but not for any other purpose, a water licence
that is endorsed with a water (holding) allocation will be taken in respect of
that allocation to give the holder of the licence the right to take the
quantity of water allocated.
(3) For the purposes of this Division, the
Minister may declare on a water licence that is endorsed with a water (holding)
allocation—
(a) the
part of the resource from which water may (notionally) be taken pursuant to the
allocation; and
(b) the
purpose for which that water will (notionally) be used.
(4) The
declaration by the Minister on a water licence of the matters referred to in
subsection (3)(a) or (b) does not limit the Minister's discretion when
determining the conditions of the conversion of the water (holding) allocation
endorsed on the licence to a water (taking) allocation under section 155.
(1) The Minister may, by notice in the Gazette,
declare a levy or levies (a water levy or levies) payable by
persons who—
(a) are
the holders of water licences granted in relation to a water resource within a
specified NRM region; or
(b) are
the holders of imported water permits; or
(c) are
authorised under section 130 to take water from a water resource within a
specified NRM region.
(2) A
levy declared by the Minister under this section must be set at a level that
will return an amount that is near as reasonably practicable to the amount
stated in the relevant regional NRM plan as the amount to be raised by way of
that particular water levy under this Division.
(3) A
levy is not invalid because it raises more or less than the amount referred to
in subsection (2).
(4) A
regional NRM plan may include proposals for money raised through the imposition
of a levy in 1 or more years to be expanded in a subsequent year or years (and
a levy may be declared on this basis).
(5) Levies
(other than a levy under subsection (1)(b)) may be declared with respect to the
right to take water or with respect to the water taken or both (but not with
respect to the taking of water for domestic purposes or for watering stock that
are not subject to intensive farming).
(6) A levy may be based on 1 or more of the
following factors:
(a) the
quantity of water allocated;
(b) the
quantity of water taken;
(c) the
quantity of water used;
(d) the
area of land where the water may be used, or the area of the land where the
water is used;
(e) the
effect that the taking or using of the water has, or may have, on the
environment, or some other effect or impact that, in the opinion of the
Minister, is relevant and that is capable of being determined, measured or
applied;
(f) any
other factor prescribed by the regulations.
(7) Without
limiting subsection (6)(e), in the case of the River Murray, a factor on
which a levy may be based is the effect that the use of water may have on
salinity levels associated with the River Murray.
(8) Different levies may be declared in respect
of the same water resource based on 1 or more of the following factors:
(a) the
part of the water resource from which the water may be, or is, taken;
(b) the
place or location where the water may be, or is, used;
(c) the
purpose for which the water may be, or is, used;
(d) the
manner in which the water may be, or is, used;
(e) when
the right to take or use the water was granted;
(f) any
other factor prescribed by the regulations.
(9) For
the purposes of subsection (6) or (7), the Minister may, by notice in the
Gazette, determine a method or methods by which the effect that the taking or
using of water is having may be determined, measured or used.
(10) Without
limiting subsection (8), different levies with respect to the right to take
water may be declared in respect of the same water resource based on a water
allocation and on whether the water allocation is a water (taking) allocation
or a water (holding) allocation under a water licence.
(11) The
Minister may, in declaring a levy, fix a minimum amount payable by way of a
levy under this section (despite a preceding subsection).
(12) If
a levy that relates to the River Murray has a component based on the effect
that the use of water may have on salinity levels associated with the River
Murray, money raised from the levy that is attributable to that component must
be applied towards reducing salinity levels associated with the River Murray.
(13) A
levy cannot be imposed under this section with respect to the taking of water
for domestic purposes or for watering stock that are not subject to intensive
farming.
(14) A notice under subsection (1)—
(a) has
effect in relation to the financial year specified in the notice; and
(b) subject
to subsection (15), must be published in the Gazette on or before the
first day of that year.
(15) A notice under subsection (1) with
respect to—
(a) water
to be taken, or that is taken, from a watercourse, lake or well; or
(b) surface
water to be taken, or that is taken, from a particular area of the State,
may be published in the Gazette within 1 month after the
watercourse, lake or well became a prescribed watercourse, lake or well or the
area became a surface water prescribed area.
104—Provisions applying to water (holding) allocations in declared water resources
(1) This
section applies in relation to a water (holding) allocation if the water
resource to which the allocation applies has been declared by the Minister by
notice in the Gazette to be a water resource in relation to which this section
applies and the declaration has not been revoked.
(2) If this section applies in relation to a
water (holding) allocation the following provisions apply:
(a) subject
to paragraph (b), a levy in respect of the allocation is not payable until
the end of the financial year for which the levy is declared;
(b) if
the allocation, or a part of it, is transferred to another person during the
financial year, the levy or, where part only of the allocation is transferred,
a proportionate part of it, is payable by the transferee at the time of
transfer;
(c) the
levy for a financial year is not payable if the licensee, on application to the
Minister, satisfies the Minister that he or she made a genuine, but
unsuccessful, attempt throughout, or through the greater part of, the financial
year to find a person who was willing to buy the water (holding) allocation
subject to the condition that the allocation—
(i) be converted to a water (taking)
allocation; or
(ii) be
endorsed on the transferee's licence as a water (taking) allocation.
(3) Paragraph (c)
of subsection (2) applies in relation to the whole or a part of a water
(holding) allocation and where it applies to part only of a water (holding)
allocation a proportionate part of the levy is not payable in pursuance of that
paragraph.
(4) If the transfer of a water (holding)
allocation is subject to a condition referred to in subsection (2)(c), the
Minister must not—
(a) approve
the transfer of the licence on which the allocation is endorsed; or
(b) vary
the transferring and receiving licences,
to effect the transfer unless he or she—
(c) converts
the water (holding) allocation to a water (taking) allocation; or
(d) endorses
the allocation on the receiving licence as a water (taking) allocation,
(as the case requires) in accordance with the terms of the
condition.
(5) If
a levy is not payable by virtue of subsection (2)(c), the licensee is
liable to pay to the Minister a fee prescribed by the regulations instead of
the levy.
(6) An application to the Minister under
subsection (2)(c) must—
(a) be
in a form approved by the Minister; and
(b) be
accompanied by such information as the Minister requires; and
(c) be
made before the end of the relevant financial year.
(7) The
Minister may, by subsequent notice in the Gazette, vary or revoke a notice
under subsection (1).
105—Special purpose water levy
(1) If, in the opinion of the Minister—
(a) it
is necessary or desirable to raise money for a particular purpose related—
(i) to the management of a prescribed water
resource; or
(ii) to
the management of any effect that the taking or using of water may have; or
(iii) to
the restoration or rehabilitation of any part of the natural resources of the
State, on account of the taking or using of water; and
(b) it
is not fair or reasonable that all persons who take, or have the right to take,
water from the resource should contribute, or contribute to the same extent, to
the amount needed for that purpose; and
(c) the
relevant regional NRM plan has identified a levy under this section as an
appropriate way to raise money for the purpose concerned,
the Minister may, by notice in the Gazette, declare a levy (a special
purpose water levy) that is payable by those persons specified in the
notice.
(2) A special purpose water levy may be
declared—
(a) on
the basis that it will apply for a specified period corresponding to 1 or more
financial years; or
(b) on
the basis that it will apply until brought to an end by the Minister by notice
in the Gazette.
(3) A
person cannot be specified in a notice under subsection (1) unless, at
some time during the period of 1 month immediately preceding publication of the
notice, he or she had the right to take water from the resource (whether he or
she actually took water during that period or not).
(4) The
Minister may only declare a special purpose water levy if a majority of the
persons named in the notice have given their consent to it in writing but if a
majority do consent then all of the persons named are primarily liable for the
levy even though their entitlement to take water has subsequently ceased.
(5) The consent must be in a form prescribed by
regulation and must include the following information:
(a) the
amount of the proposed levy at the time of its declaration and the amount that
imposition of the levy is expected to raise during a specified period of at
least 12 months; and
(b) the
purpose for which money raised by the levy will be used; and
(c) the
names of the persons to be specified in the notice who will be primarily liable
to pay the levy; and
(d) if
the levy is to apply for more than 1 financial year—whether the levy may or
will be altered from year to year and, if so, the basis on which an alteration
will be made.
(6) The
Minister must serve the form of consent on all persons to be named in the notice
as being primarily liable for the levy.
(7) For
the purpose of determining whether a majority of persons have given their
consent to a levy, 2 or more persons who would be primarily liable for the levy
in respect of the same water licence or the same land or business will be
counted as 1 person.
(8) For
the purpose of determining whether consent has been given, all of the persons
(if more than one) who would be primarily liable for the levy in respect of the
same water licence or the same land or business must give their consent.
(9) A
form of consent that purports to have been signed by a person who will be
liable to pay a special purpose water levy must, in the absence of proof to the
contrary, be taken in proceedings before a court or other tribunal to have been
signed by that person.
(10) Unless
the contrary intention appears, this Division applies to and in relation to a
special purpose water levy as though it were a levy declared under
section 103, subject to any modifications or exclusions prescribed by the
regulations.
(11) The
naming of the persons who will be primarily liable for a special purpose water
levy in a notice under subsection (1) does not exclude the liability for
the levy under section 106 of an existing owner of land or a person who
subsequently owns or occupies the land.
(12) Liability
for a special purpose water levy is in addition to liability for a levy under
section 103.
(13) Nothing
in this section limits the ability of the Minister to declare differential
levies under section 103 on the bases set out in that section.
(1) Subject
to subsection (8), a person who holds a water licence at any time during a
financial year in respect of which a levy for the right to take water has been
declared is liable to pay to the Minister the full amount of that levy whether
he or she holds the licence throughout the year or not.
(2) Subject
to subsection (6), a person who holds a water licence at any time during a
financial year in respect of which a levy with respect to the taking of water
has been declared is liable to pay to the Minister the amount of the levy that
applies in relation to the licence.
(3) Subject
to subsection (6), a person who takes water pursuant to an authorisation
under section 130 at any time during a financial year in respect of which a
levy with respect to the taking of water has been declared is liable to pay to
the Minister the amount of the levy that applies in relation to the
authorisation.
(4) If a levy with respect to the right to take
water or for the taking of water applies in relation to water that is intended
to be used, or is used, for irrigating land or in the course of carrying on a
business on land, the following persons are jointly and severally liable to the
Minister for payment of the levy in addition to the person primarily liable
under subsection (1), (2) or (3):
(a) in
the case of a levy with respect to the right to take water—the owner of the
land (if the owner is not the person primarily liable under
subsection (1))—
(i) if the levy was declared during the
financial year to which the levy relates—at the time the levy was declared; or
(ii) if
a water licence was not in existence in relation to that land at the
commencement of the financial year to which the levy relates but a licence was
granted after the commencement of that year—at the time when the licence was
granted; or
(iii) if
the levy is payable in respect of an increase in the water allocation—at the
time of the increase; or
(iv) in
any other case—at the commencement of the financial year to which the levy
relates; and
(b) in
the case of a levy with respect to water taken—the owner of the land (if the
owner is not the person primarily liable under subsection (2) or (3)) when
the water was taken; and
(c) all
persons who own or occupy the land at any time—
(i) after the person primarily liable under
subsection (1), (2) or (3) or the person liable under paragraph (a)
or (b); and
(ii) before
the levy is paid.
(5) A
person who makes a payment to the Minister in respect of his or her liability
under subsection (4) may recover the amount of the payment from the person
primarily liable under subsection (1), (2) or (3).
(6) If 2 or more persons are liable under
subsection (2) or (3) with respect to water taken during different parts
of an accounting period and the water used by those persons is used to irrigate
the same land or is used in the course of carrying on a business on the same
land, the following provisions apply:
(a) the
last of those persons to take water during the accounting period will be taken
to be liable under subsection (2) or (3) to the Minister for the amount of
the levy with respect to water taken during the whole of that period; and
(b) that
person is entitled to contribution from the other person or persons who have
taken water during another part or parts of the accounting period, calculated
on the basis of the quantity of water taken by each of them.
(7) A
person is liable under this section for a levy with respect to the right to
take water, or with respect to water taken, pursuant to a water licence whether
the licence was granted before or after the commencement of this Act.
(8) If—
(a) a
water licence is granted after the commencement of a financial year or the
water allocation of a water licence is increased after the commencement of a
financial year; and
(b) the
water allocation, or part of the water allocation, of the licence or the
increase, or part of the increase, in the water allocation of the licence is
attributable to the surrender of another licence or a reduction in the water
allocation of another licence,
a levy with respect to the right to take water is not payable for
that year in respect of that part of the water allocation of the licence that
is attributable to the surrender of the other licence or the reduction in the
water allocation of the other licence.
(9) A
levy with respect to the right to take water is payable even though taking
water has been prohibited or restricted under this Act or under the licence
concerned.
(10) A
person who holds an imported water permit at any time during a financial year
in respect of which a levy has been declared is liable to pay to the Minister
the full amount of that levy whether he or she holds the permit throughout the
year or not.
(11) Subject
to section 104(2), a levy becomes payable on the date for payment stated
in the notice under section 107.
(12) A
levy or instalments of a levy are payable pursuant to a notice served under
section 107 despite the fact that the person liable disputes the amount of the
levy, but any overpayment must be refunded by the Minister when the correct
amount is finally determined.
107—Notice of liability for levy
(1) The
Minister may serve the notice referred to in subsection (2) on a person
who is liable to pay a levy under section 106.
(2) The notice must state—
(a) the
amount of the levy payable and the accounting period or periods to which the
notice relates; and
(b) the
factor, or combination of factors, on which the levy is based; and
(c) the
date on or before which the levy must be paid or, if the Minister is prepared
to accept payment in instalments, the amount of each instalment and the date on
or before which it must be paid.
(3) The
accounting period or periods to which a notice relates must be confined to 1
financial year or to part of a financial year.
108—Determination of quantity of water taken
(1) If the basis of a levy is or includes the
quantity of water taken then the following provisions apply:
(a) meter
readings will be used to determine the quantity of water taken except where—
(i) a meter has not been installed; or
(ii) the
readings given by the meter are unreliable in the opinion of the Minister;
(b) if
meter readings are used, the quantity of water taken during an accounting
period will be taken to be the quantity of water taken during the consumption
period for that accounting period;
(c) if
meter readings are not used, the quantity of water taken during an accounting
period will, subject to subsection (3), be assessed by the Minister on—
(i) the basis of the pumping capacity of the
pump (if any) used to take the water; or
(ii) the
basis of the area of land irrigated and the crop grown on that land; or
(iii) such
other basis as the Minister thinks fit;
(d) water
taken—
(i) by the occupier of land for domestic
purposes on the land or for providing stock (other than stock subject to
intensive farming) kept on the land with drinking water; or
(ii) for
firefighting,
must be disregarded;
(e) if
water taken for domestic or stock purposes or for firefighting
is not measured by meter, or the water taken is used for other purposes as
well, the Minister must make an assessment of the quantity of water taken for
those purposes in accordance with paragraph (c).
(2) If
the Minister uses meter readings or uses any other measuring instrument to
determine the quantity of water taken under this Act, the Minister will be
taken not to be using a measuring instrument for trade for the purposes of the Trade
Measurement Act 1993.
(3) The Minister cannot make an assessment
under subsection (1)(c) of the quantity of water taken (except for
domestic or stock purposes) unless, before the commencement of the accounting
period in relation to which the assessment is to be made, the Minister
publishes in the Gazette—
(a) if
the basis of assessment is to be pumping capacity—the method to be used in
assessing the quantity of water on that basis;
(b) if
the basis of assessment is to be crop area—water use rates for the crop
concerned;
(c) if
some other basis of assessment is to be used—the basis to be used and the
method by which it will be used.
(4) If
a person liable to pay a levy with respect to water taken from a prescribed
water resource is dissatisfied with the accuracy of a meter supplied by the
Minister that is being used to measure any quantity of water taken, the person
may, on payment of the fee prescribed by the regulations, require the Minister
to test the meter.
(5) If—
(a) the
meter used to measure any quantity of water taken has not been supplied by the
Minister; and
(b) the
Minister requires that the meter be tested,
then the person liable to pay a levy with
respect to that water must ensure that the meter is tested in the manner
prescribed by the regulations and provide a certificate relating to the testing
to the Minister in accordance with the regulations.
Maximum penalty: $10 000.
(6) If
a person fails to comply with subsection (5), the Minister may arrange for the mter to be tested and recover the cost of the testing from
that person as a debt due to the Crown in a court of competent jurisdiction.
(7) If on testing a meter in accordance with
this section it is found—
(a) that
the quantity of water measured by the meter was not more than 5 per cent more
or less than the quantity of water actually taken, the quantity of water
measured by the meter will be the quantity in respect of which the levy is
payable;
(b) that
the quantity of water as measured by the meter was inaccurate by more than 5
per cent and the Minister is able to determine the degree of inaccuracy, the
Minister may serve a further notice under section 107 based on the
quantity of water taken appropriately adjusted;
(c) that
the quantity of water as measured by the meter was inaccurate by more than 5
per cent but the Minister is unable to determine the degree of inaccuracy, the
Minister may serve a further notice under section 107 based on the
Minister's assessment under subsection (1)(c) and subsection (3) does
not apply in relation to an assessment in these circumstances.
(8) If
the quantity of water as measured by a meter tested under subsection (4) was
inaccurate by more than 5 per cent, the Minister must refund the fee referred
to in that subsection.
(9) A
person who is dissatisfied with the finding or determination of the Minister
under subsection (7) may appeal to the ERD Court against the finding or
determination.
(10) If the Minister assesses—
(a) the
quantity of water taken under subsection (1)(c); or
(b) the
quantity of water used for domestic or stock purposes or for firefighting under subsection (1)(e); or
(c) the
quantity of water taken by a person who is not authorised by a licence or under
section 130 to take the water,
the assessment and the basis on which it was made cannot be called
into question by, or before, any court, tribunal or other authority except on
the ground that the assessment was not made in good faith.
(11) If
at the time of the declaration of a levy it is declared that this section will
apply with respect to the quantity of water used, then a reference in this
section to the quantity of water taken will be taken to include a reference to
the quantity of water used.
(12) The
Governor may, by regulation, prescribe standards for meters used for the purpose
of determining the quantity of water taken.
109—Cancellation etc of licence or permit for non-payment of levy
(1) If
a person who holds a water licence or an imported water permit has failed to
pay a levy, or an instalment of a levy, within 3 months after being served with
a notice under section 107, the Minister may serve further notice on the
holder of the licence or permit requiring payment within a period of not less
than 1 month and stating that the licence or permit (as the case may be) may be
cancelled, suspended or varied by the Minister if the amount is not paid within
that time.
(2) The
Minister may cancel, suspend or vary the water licence or imported water permit
by 7 days written notice served on the holder of the licence or permit if the
levy or instalment is not paid in accordance with the notice referred to in
subsection (1).
110—Costs associated with collection
(1) Subject
to subsection (2), a regional NRM board is liable to pay to the Minister an
amount determined in accordance with guidelines approved by the Treasurer on
account of the costs incurred by the Minister in collecting any levy under this
Division that applies in respect of a water resource located within the region
of the board.
(2) An
amount payable by a regional NRM board with respect to a particular financial
year cannot exceed an amount determined in accordance with the regulations.
This Division applies to—
(a) an
OC-NRM levy; and
(b) an
NRM water levy.
(1) Interest accrues—
(a) on
an unpaid levy; and
(b) on
any unpaid instalments of a levy; and
(c) on
unpaid interest,
in accordance with the regulations.
(2) A
person who is liable to pay a levy is also liable to pay interest that accrues,
or has accrued, on or in relation to the levy under this section.
(3) The
Minister may release a person suffering financial hardship from liability to
pay the whole or part of interest that has accrued under this section.
The Minister may discount a levy in accordance with the
regulations to encourage early payment of the levy.
A levy will be a first charge on land in accordance with a scheme
established by the regulations.
115—Sale of land for non-payment of a levy
(1) If
a levy, or interest in relation to a levy, is a first charge on land and has
been unpaid for 3 years or more, the Minister may sell the land.
(2) Before the Minister sells land in pursuance
of this section, he or she must serve notice on the owner and occupier of the
land—
(a) stating
the period for which the levy and interest have been in arrears; and
(b) stating
the amount of the total liability for the levy and interest presently
outstanding and charged on the land; and
(c) stating
that if that amount is not paid in full within 1 month of service of the notice
(or such longer time as the Minister may allow), the Minister intends to sell
the land for non-payment of the levy or interest.
(3) A copy of a notice must be served on—
(a) any
registered mortgagee or encumbrancee of the land; and
(b) the
holder of any caveat over the land.
(4) If
the outstanding amount is not paid in full within the time allowed under
subsection (2), the Minister may proceed to sell the land.
(5) The
sale will, except in the case of land held from the Crown under a lease,
licence or agreement to purchase, be by public auction (and the Minister may
set a reserve price for the purposes of the auction).
(6) An
auction under this section must be advertised on at least 2 separate occasions
in a newspaper circulating generally throughout the State.
(7) If,
before the date of the auction, the outstanding amount and the costs incurred
by the Minister in proceeding under this section are paid to the Minister, the
Minister must withdraw the land from auction.
(8) If—
(a) an
auction fails; or
(b) the
land is held from the Crown under a lease, licence or agreement to purchase,
the Minister may sell the land by private contract for the best
price that the Minister can reasonably obtain.
(9) Any money received by the Minister in
respect of the sale of land under this section will be applied as follows:
(a) firstly—in
paying the costs of the sale and any other costs incurred in proceeding under
this section;
(b) secondly—in
discharging the liability for the levy and interest and any other liabilities
to the Minister in respect of the land;
(c) thirdly—in
discharging the liability (if any) to any other authority under this Act that
relates to the administration of this Act;
(d) fourthly—in
discharging any liability to the Crown for rates, charges or taxes (including
rates, charges or taxes that are a first charge on the land);
(e) fifthly—in
discharging any liability to a council for rates or any other liability to a
council in respect of the land;
(f) sixthly—in
discharging any liabilities secured by registered mortgages, encumbrances or
charges;
(g) seventhly—in
discharging any other mortgages, encumbrances and charges of which the Minister
has notice;
(h) eighthly—in
payment to the former owner of the land.
(10) If
the former owner cannot be found after making reasonable inquiries as to his or
her whereabouts, an amount payable to the former owner must be dealt with as
unclaimed money under the Unclaimed Moneys Act 1891.
(11) If
land is sold by the Minister in pursuance of this section, an instrument of
transfer executed by the Minister will operate to vest title to the land in the
purchaser.
(12) If the Minister cannot sell the land under
this section after taking all reasonable steps to do so—
(a) the
Minister may, by notice in the Gazette, assume title to the land (and title
will then, by force of this subsection, vest in the Minister); and
(b) the
value of the land vested in the Minister under paragraph (a), as at the
date of the notice under that paragraph, will be deducted from any outstanding
amount and the costs incurred by the Minister in proceeding under this section.
(13) The title vested under subsection (11)
or (12) will be free of—
(a) all
mortgages, charges and caveats; and
(b) except
in the case of land held from the Crown under lease or licence—all leases and
licences.
(14) An
instrument of transfer passing title to land in pursuance of a sale under this
section must, when lodged with the Registrar-General for registration or
enrolment, be accompanied by a statutory declaration made by the Chief
Executive of the Department stating that the requirements of this section in
relation to the dealing with the land have been observed.
(15) The
Chief Executive of the Department must, as soon as is reasonably practicable
after the publication of a notice under subsection (12), inform the
Registrar-General of the publication of the notice and lodge with the
Registrar-General a statutory declaration stating that the requirements of this
section in relation to dealing with the land have been observed.
(16) If
it is not reasonably practicable to obtain the duplicate certificate of title
to land that is vested in a purchaser or the Minister in pursuance of this
section, the Registrar-General may register the vesting despite the
non-production of the duplicate, but in that event the Registrar-General must
cancel the existing certificate of title for the land and issue a new
certificate in the name of the transferee or the Minister (as the case may be).
(17) A
reference in this section to land, or title to land, held from the Crown under
lease, licence or agreement to purchase, is a reference to the interest of the
lessee, licensee or purchaser in the land.
(1) A
regional NRM plan or the regulations may set out natural resources management
practices designed to conserve, protect, maintain or improve the quality or
state of natural resources of a specified kind that will form the basis of an
application for a refund of the levy imposed under this Part.
(2) Without limiting subsection (1),
natural resources management practices may include—
(a) the
establishment of, or participation in, a drainage scheme, or a scheme to
restore or rehabilitate natural resources; or
(b) the
establishment or maintenance of infrastructure, plant or equipment; or
(c) other
initiatives.
(3) The
plan or the regulations must specify the amount of the refund that may be
applied for.
(4) A
person who has undertaken or adopted practices referred to in subsection (1)
in a financial year may apply for a refund of the whole or a part of a levy (or
a component of a levy) under this Part paid by that person for that year.
(5) The
application must be made to the relevant regional NRM board.
(6) A
regional NRM board must grant an application under this section if the relevant
criteria set out in the regional NRM plan or the regulations have been
satisfied.
(7) Without
limiting the criteria that may be used, a plan or regulations may specify
accreditation by a specified body as the criterion or one of the criteria on
which an application will be granted.
(8) An
applicant may apply to the Minister for a review of a decision of a regional
NRM board under this section.
(9) On
the granting of an application, the relevant regional NRM board must pay to the
applicant the amount of the refund applied for.
(10) The Minister may also grant a refund of, or
an exemption from, the whole or a part of a levy (or a component of a levy)—
(a) as
a condition of a water licence; or
(b) under
the terms of a management agreement under the River Murray Act 2003; or
(c) by
notice in the Gazette.
(11) A
refund under this section may be granted on conditions determined by the
regional NRM board or by the Minister.
(12) Without limiting subsection (11), a
condition may be that the person who has the benefit of the refund pay a fee to
cover—
(a) any
administrative costs associated with granting the refund; or
(b) any
monitoring or assessment costs associated with ensuring that specified criteria
or conditions are met.
117—Declaration of penalty in relation to the unauthorised or unlawful taking or use of water
(1) The Minister may, by notice in the Gazette,
declare a penalty payable by—
(a) a
licensee who takes water in excess of the water allocation of a water licence;
or
(b) a
licensee who takes water contrary to the provisions that apply with respect to
a water (holding) allocation; or
(c) a
person who takes water but is not the holder of a water licence and is not
authorised under section 130 to take the water; or
(d) a
person who has acted in contravention of a notice under section 134.
(2) The Minister may declare different
penalties—
(a) depending
on the quantity of water taken;
(b) for
water taken from different water resources;
(c) in
the case of a contravention of a notice under section 134—depending on the
relevant circumstances.
(3) A notice declaring a penalty under
subsection (1)(a)—
(a) will
apply with respect to the taking of water in a consumption period that
corresponds to an accounting period specified in the notice; and
(b) must
be published in the Gazette during the first half of the accounting period.
(4) A notice declaring a penalty under
subsection (1)(b) or (c)—
(a) will
apply with respect to the taking of water in the period specified in the
notice; and
(b) may
be published in the Gazette at any time before or during that period.
(5) The
sections of this Chapter prescribed by the regulations apply to, and in
relation to, a penalty under this section as though it were a levy declared
under section 103.
118—Appropriation of levies, penalties and interest
(1) Money paid to the Minister in satisfaction
of a liability for a levy under this Part, after any appropriate deductions
authorised by or under this Act, and penalty or interest, must—
(a) —
(i) in the case of a levy collected under
Division 1—be paid to the regional NRM board for the region in respect of which
the levy is declared;
(ii) in
the case of a levy under Division 2—
(A) in
the case of money attributable to a water levy—be paid to the regional NRM
board for the region where the water resource in relation to which the levy was
declared is located; and
(B) in
the case of a special purpose water levy—be applied for the purpose for which
the levy was raised;