National Parks and CrownLand (Reserves) Acts (Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
551411
BILL LA INTRODUCTION 31/5/2006
Clause Notes
PART 1—PRELIMINARY
Clause 1sets out the purposes of the Act.
The primary purposes of the Bill are to—
- amend the National Parks Act 1975 to add land to parks under that Act and to amend the provisions relating to offences in marine national parks and marine sanctuaries; and
- amend the CrownLand (Reserves) Act 1978 to create three regional parks, four nature conservation reserves, a recreation reserve and eight water reserves.
The Bill also makes other amendments to those Acts and amends the Heritage Rivers Act 1992 and the Mineral Resources Development Act 1990.
Clause 2provides for the commencement of the Act. Sections 1 and 2, Part2 (except sections 13(2) and 16(2)), sections 18, 20, 21, 23, 26(3) and 27, Part 5 and the Schedule come into operation on the day after the day on which the Act receives the Royal Assent. The other provisions come into operation on 30 June 2007 unless they are proclaimed earlier.
PART 2—AMENDMENTS TO THE NATIONAL PARKS ACT1975
Part 2 contains clauses 3–16, which amend the National Parks Act 1975 (NP Act). Inthe explanations to those clauses, a reference to a section, Part or Schedule is a reference to a section, Part or Schedule of that Act.
Clause 3amends the definitions of "Barwon water supply catchment area" and "South West water supply catchment area" by substituting references to the relevant updated plans of the GreatOtwayNational Park (see clause 13(3)). The South West water supply catchment area will now also include three allotments that Wannon Water is surrendering to the Crown for inclusion in the park through this Bill.
Clause 4amends section 19F(3). Section 19F enables the Governor in Council to declare by Order that a particular area is land to which specified provisions of the NP Act and the regulations are to apply, and the Order amends Schedule Four accordingly. Theamendment to the Schedule has the same force and effect asif it had been enacted.
Section 19F(3) currently provides that, where any land is included in Schedule Four by Order, provisions of the NP Act and the regulations shall not apply except as specified in the Schedule. As well as land being included in the Schedule by Order, land has also been included directly by legislation. Clause4 amends section 19F(3) so that the provisions of the NPAct and regulations specified in the Schedule apply regardless of whether the Schedule is amended by Order or by legislation. Proposed section 69 (see clause 12) deems the amendment to have always been enacted to put beyond doubt the intended effect of previous legislative amendments to the Schedule.
Marine national parks and marine sanctuaries—offence provisions
Clauses 5–7 amend the provisions relating to offences in marine national parks and marine sanctuaries.
Clause 5amends section 45A in relation to fishing related offences in marine national parks and marine sanctuaries.
Clause 5(1) amends section 45A(2) by removing from the offence the requirement to prove that a person who was fishing was taking or attempting to take fish for a purpose other than for sale. This offence will still apply in circumstances where a person is taking or attempting to take fish other than for sale but it will also apply where a fishing offence has been committed but the purpose of the fishing (i.e. whether it was to take the fish for sale or not for sale) is difficult to determine.
Clause 5(2) inserts sub-section (2A). Proposed sub-section (2A) creates a lesser, strict liability offence to use recreational fishing equipment in a marine national park or marine sanctuary. It is proposed that this offence could be dealt with through the penalty infringement notice process as an alternative to the courts. "Recreational fishing equipment" is defined in proposed sub-section (9) (see clause 5(5)). (It is not an offence to merely carry such equipment in a boat.)
Clause 5(3) inserts sub-sections (4A) and (4B).
Sub-section (4A) provides that any prohibition that may apply under section 45A(4), in a prescribed area of Cape Howe Marine National Park, to being in charge of a boat that is of a prescribed class of boats orthat is carrying equipment that is of a prescribed class of equipment does not apply to a person acting in accordance with an authorisation of the Minister. Section 45A(4) aims to achieve a high level of protection of that park from abalone theft, but there may be circumstances where it is desirable to be able to exempt a person from the prohibitions (e.g.when carrying prescribed equipment on board a boat for usein research).
Sub-section (4B) empowers the Minister to issue the authorisation under proposed section 45A(4A) in writing and to impose conditions.
Clause 5(4) inserts sub-section (6A). Proposed sub-section (6A) creates an offence for a person in the waters in a marine national park or marine sanctuary to possess a priority species (abalone and rock lobster). This offence would apply, for example, where a person is found in the water (e.g. wading or swimming) in possession of abalone but the taking of the abalone has not been observed. The offence does not apply to a person on board a boat. (Sections 45A(5) and (6) apply where a person in a marine national park or marine sanctuary has in that person's possession or charge a boat carrying a priority species.)
Clause 5(5) inserts sub-section (9). Proposed sub-section (9) defines "recreational fishing equipment", which is used in proposed sub-section (2A). The definition is the same as in the Fisheries Regulations 1998.
Clause 6amends section 45D in relation to liability for certain offences in marine national parks and marine sanctuaries.
Clause 6(1) amends section 45D by substituting a more general heading.
Clause 6(2) inserts sub-sections (2A)–(2C).
Proposed sub-section (2A), which issimilar to section 120(2) of the Fisheries Act 1995, extends the liability for offences under Division 2 of Part V that are committed from or in connection with a boat. (Division 2 of Part V contains offences relating specifically to marine national parks and marine sanctuaries.)If an offence under that Division is committed from or in connection with a boat, the person in charge of the boat at the time that the offence was committed is also guilty of the offence. The extended liability is intended to place an onus on the person in charge of a boat to ensure the responsible behaviour of those on board, or connected with,a boat in a marine national park or marine sanctuary. An example of an offence committed in connection with a boat is spearfishing while underwater diving based from the boat.
Proposed sub-section (2B) specifies that the extended liability does not apply in the circumstances in which existing sub-sections (1) or (2) apply. Those sub-sections impose liability on licence holders for the conduct of their employees or contractors in relation to offences under Division 2 of Part V.
Proposed sub-section (2C) provides a defence for the purposes of proposed sub-section (2A). The person is not guilty if he or she is able to prove that he or she did everything that was reasonably practicable to ensure that the offence would not be committed and did not aid, abet, counsel or procure the commission of the offence.
Clause 7amends section 45E by extending, from 18 months to 3 years, the time in which proceedings may be commenced after the alleged commission of an offence against sections 45A(4), 45A(5) or45A(6A). These offences involve, or in the case of section 45A(4) are likely to associated with, high value commercial priority species (abalone and rock lobster), and may be committed along with similar or related offences under the Fisheries Act 1995 for which the limitation period is 3 years. The amendment will bring greater parity between the two Acts and avoid an overly complicated legal regime arising from different limitation periods applying to similar offences inside and outside marine national parks and marine sanctuaries.
Clause 8amends sections 48(5) and 48(6) by substituting updated references to the Subordinate Legislation Act 1994. Sections48(5) and 48(6) provide for the disallowance of regulations made under the NP Act.
Clause 9repeals sections 50F, 50I, 60, 61C and 61D. These are spent transitional provisions relating to various licences in several boxironbark parks and reserves (sections 50F and 50I), the Alpine Advisory Committee (section 60), and the inclusion of reserved forest and roads in various parks as a result of the National Parks (Otways and Other Amendments) Act 2005 (sections 61C and 61D).
Clause 10substitutes new section 62.
Clause 10 has the effect of repealing existing sections 62(1), (2), (4) and (5), which are spent transitional provisions relating to the exclusion of lands from DandenongRanges, Kinglake and YarraRangesNational Parks and WarrandyteState Park respectively until the relevant titles were surrendered to the Crown. This has now occurred.
Existing section 62(3) excludes any land coloured blue on specified plans from the GreatOtwayNational Park until the relevant title is surrendered to the Crown. The plans numbered N.P. 111C and N.P. 111G incorrectly showed coloured pink some of the area that should have been coloured blue. Proposednew section 62(1) substitutes a new provision which states that any land coloured pink on those plans is taken to excluded from the park until the title is surrendered to the Crown. Proposed new section 62(2) deems the amendment to have commenced on 11December 2005 (the day on which the existing section 62(3) commenced and the Great Otway National Park was created) so that there is no doubt that the freehold land was excluded from the park at the time the park was created.
Clause 11repeals sections 65 and 66. These are spent transitional provisions relating to a road included in Point Nepean National Park (section 65) and the exclusion of lands from MorningtonPeninsula and Point Nepean National Parks until the relevant titles were surrendered to the Crown (section 66). This has now occurred.
Clause 12inserts new sections 68, 69, 70 and 71.
Proposed section 68 defines "2006 Act" as the National Parks and CrownLand (Reserves) Acts (Amendment) Act 2006 for the purpose of Part 9 (in particular sections 69, 70 and 71).
Proposed section 69 provides that section 19F is deemed to have always been amended by section 4 of the 2006 Act (see clause 4). This is to remove any doubt as to the effect of previous legislative amendments to Schedule Four, as described in the explanation to clause 4.
Proposed section 70 provides that certain lands are taken to be excluded from the GreatOtwayNational Park until the relevant titles are surrendered to the Crown. This includes the areas referred to in the explanation to clause 10.
Proposed section 71 provides that certain lands cease to be roads when they are included in FrenchIsland, Great Otway and GrampiansNational Parks (section 71(1)) and Broken-BooseyState Park (section 71(2)). This does not affect any existing road formation.
Amendments to particular parks and reserves
Clauses 13–16 amend the descriptions of particular parks included in various schedules.
Clause 13amends Schedule Two (National Parks) in relation to the descriptions of the following parks. (Please note that the total areas of FrenchIsland and GrampiansNational Parks have been re-calculated and do not reflect the exact change in areas of the parks arising from the amendments below.)
Clause /National park / Part of Schedule Two / Description of amendment
13(1) / MorningtonPeninsula / Part 4 / Addition of purchased land (017 ha).
13(2) / FrenchIsland / Part 15 / Addition of purchased land (28 ha) and unused roads.
Clause /
National park / Part of Schedule Two / Description of amendment
13(3) / Great Otway / Part 31 / Addition of purchased and transferred land (188 ha) and abutting unused roads; correction to one of the plans.
13(4) / Grampians / Part 34 / Addition of purchased and other Crown land (188 ha) and unused roads; correction to plan and associated excision of unused roads.
Clause 14amends the description of Broken-BooseyState Park in Part 37 of Schedule Two B (State Parks). It provides for the addition of purchased land (06 hectares), an unused road and some previously excluded tracks. In addition, the new plan of the park shows the recently surveyed boundaries of the roads and tracks that are excluded from the park (instead of excluding them by name). This has resulted in a decrease in the area (hectares) of the park, even though no land has been excised from the park.
Clause 15amends the description of the following parks in Schedule Three (Other Parks):
Clause /Park / Part of Schedule Three /
Description of amendment
15(1) / Beechworth Historic Park / Part 1 / Correction to plan.
15(2) / Steiglitz Historic Park / Part 13 / Excision of sections of roads.
Clause 16 amends Schedule Four.
Clause 16(1) amends Parts 1–8 by updating the references to regulations under the NP Act that apply to the areas described in those Parts.
Clause 16(2) amends Part 8 (CastlemaineDiggingsNationalHeritagePark) by updating the description of the reserve as it isdescribed in the CrownLand (Reserves) Act 1978 and amending the note containing the description of the land. Theamendments to the description in the note result from the addition of a land purchase (45 ha) and an unused road, small excisions and a re-calculation of the total area of the park. Theadditions and excisions are effected through clause 26(2).
PART 3—AMENDMENTS TO THE CROWN LAND (RESERVES) ACT 1978
Part 3 contains clauses 17–27, which amend the CrownLand (Reserves) Act 1978 (CLR Act). Inthe explanations to those clauses, a reference to a section, Division, Part or Schedule is a reference to a section, Part, Division or Schedule of that Act.
Clause 17amends Part 4 by substituting a more general heading.
Clause 18amends section 29F(1) by correcting the reference to Beaconsfield Nature Conservation Reserve.
Clause 19inserts sections 29G, 29H and 29I. Those provisions apply to various water related infrastructure in Bendigo and MacedonRegionalParks.
Proposed section 29G enables the Minister, with the agreement of the Minister administering the Water Act 1989, to enter into an agreement with a water authority for it to manage and control or to construct various types of structures and installations relating to water supply in Bendigo or MacedonRegionalParks. This will enable Coliban Water and Western Water, respectively, to continue to be responsible for various structures and installations in those parks and to construct new infrastructure where this may be required.
Proposed section 29H enables the Minister to grant an authority to a person to install, operate or manage works for the purposes of conveying water over parts of BendigoRegionalPark. Theworks carry water from channels for use outside the park. Any current authority will remain valid for up to 12 months or until replaced by a new authority under section 29H, whichever is the earlier.
Proposed section 29I enables the Minister to grant a licence to enable a person to use land in BendigoRegionalPark for a dam where the dam was existing immediately before the creation of the park. Proposed section 54 (see clause 24) preserves existing licences for dams in the park. On expiry, a new licence may be granted under section 29I.
Clause 20repeals sections 33, 37, 38, 39 and 41. Section 33 revoked part of a nature conservation reserve at Deep Lead and is now spent. Sections 37, 38, 39 and 41 created, respectively, Black Dog Creek, Nathalia, Numurkah and Wattville Natural Features Reserves. Each of those sections includes a description of the reserve and various transitional provisions, which are now spent. For a more consistent approach to the description of reserves covered by Part 6, clause 26(3) adds the description of the four reserves to Part 3 of the Fifth Schedule (Natural Features Reserves), thereby making sections 37, 38, 39 and 41 redundant.
Clause 21inserts new section 43. Proposed new section 43 states how each area described in the Fifth Schedule may be described in any Act or other document. This allows similar wording in each of sections 44–47 to be omitted (see clause 27 and the Schedule to the Bill).
Clause 22inserts new sections 47B and 47C to establish the basis for creating regional parks and water reserves.
Proposed section 47B applies to regional parks and deems each area of land described in Part 4A of the Fifth Schedule (Regional Parks) to be permanently reserved for the specified public purposes.
Proposed section 47C deems each area described in Part 6 of the Fifth Schedule (Water Reserves) to be permanently reserved for public purposes, in particular water supply purposes.
Clause 23repeals several spent transitional provisions.
Clause 23(1) repeals section 48, which relates to various reserves included in the Fifth Schedule as a result of the National Parks (Additions and Other Amendments) Act 2004.
Clause 23(2) repeals section 50A, which relates to the creation of the Beaconsfield and Warrandyte–Kinglake Nature Conservation Reserves.
Clause 23(3) repeals section 50B, which provides for the exclusion of lands from Beaconsfield and Warrandyte–Kinglake Nature Conservation Reserves until the relevant titles are surrendered to the Crown. This has now occurred.
Clause 24inserts Division 5 in Part 6. Proposed Division 5 contains further transitional provisions relating to the creation of various reserves through this Bill.
Proposed section 51 defines "2006 Act" as the National Parks and CrownLand (Reserves) Acts (Amendment) Act 2006 for the purposes of Part 6.
Regional parks and abutting areas
Proposed sections 52–55 contain transitional provisions relating to the new Bendigo, Kurth Kiln and MacedonRegionalParks (see clause 26(4)).
Proposed section 52(1) provides that any existing reservation of, and specified encumbrances, interests etc in, any land included in the regional parks cease, and any regulations applying to that land are repealed. Proposed section 52(2) provides that certain lands cease to be roads when they are included in the regional parks.
Proposed section 53 revokes any existing reservations (reserved forest or Crown land reserves) over several areas of road which abut the three regional parks. This will facilitate the subsequent proclamation of these areas as roads.
Proposed section 54 provides that any lease, licence, permit or other authority under specified Acts over any part of the land included in the regional parks continues after the creation of the parks.
Proposed section 55 provides for timber harvesting in a specific part of KurthKilnRegionalPark, consistent with recommendations of the former Land Conservation Council.
Proposed section 55(1) applies the Forests Act 1958, the Sustainable Forests (Timber) Act 2004 and the Safety of PublicLand Act 2004 to the land as if it were protected forest. This means that the relevant provisions of those Acts—and any relevant regulations—can apply to the management of timber harvesting in part of the park.