Catchment and Land Protection (Further Amendment) Act 2006

i Catchment and Land Protection (Further Amendment) Act 2006 Act No. 67/2006 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Definitions 2 4. Application of section 22 agreements 2 5. Issue of land management notices 3 6. Requirements before service of notice 4 7. Substitution of section 46 4 46. Landowner to notify Secretary of compliance with notice 4 8. Insertion of new Part 5A 5 PART 5A—PRIORITY AREA NOTICE 5 47A. Notice of declaration of priority area 5 47B. Contents of priority area notice 6 47C. Service of copy of notice on land owner 6 47D. Offence to fail to comply with notice 7 47E. Land owner to notify Secretary of measures taken 7 47F. Relationship between this Part and Part 5 8 9. Classification of pests—general 8 10. What are regionally prohibited weeds? 8 11. What are restricted weeds? 9 12. Action before recommendation 9 13. Insertion of new sections 70B, 70C and 70D 9 70B. Directions notice 9 70C. Offence to fail to comply with directions notice 10 70D. Land owner to notify Secretary of measures taken under directions notice 10 14. Spread of noxious weeds 11 15. Amendment to authorised officers' powers to take samples 11 16. Entry with notice 12 17. Powers of authorised officers on emergency entry 12 18. Entry with warrant 13 19. Substitution of section 83A 13 83A. Further seizure powers 13 -- 1 of 21 -- Section Page ii 20. Insertion of new section 83O 14 83O. Authorised officer may require access to ratepayer details 14 21. Offences relating to notices 15 22. Insertion of new section 84A 15 84A. Conduct by officers, employees or agents 15 23. Insertion of new section 85A 17 85A. Persons served with notices to inform Secretary if not land owner 17 24. Regulation making powers 17 25. Transitional provision 18 104. Transitional provision Catchment and Land Protection (Further Amendment) Act 2006 18 ═══════════════ ENDNOTES 19 -- 2 of 21 -- 1 Catchment and Land Protection (Further Amendment) Act 2006 † [Assented to 19 September 2006] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is— (a) to amend the Catchment and Land Protection Act 1994— (i) to make further provision for notices and declarations as to noxious weeds and pest animals; and (ii) to make further provision for enforcement of the Act; and Victoria No. 67 of 2006 -- 3 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 2 (b) to make other amendments to the Catchment and Land Protection Act 1994. 2. Commencement (1) This Act, other than sections 3, 4, 5(1), 5(3), 7, 8, 13, 16(1), 21, 23 and 25 comes into operation on the day after the day on which it receives the Royal Assent. (2) Subject to sub-section (3), sections 3, 4, 5(1), 5(3), 7, 8, 13, 16(1), 21, 23 and 25 come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 July 2007, it comes into operation on that day. 3. Definitions Insert the following definitions in section 3 of the Catchment and Land Protection Act 1994— ' "directions notice" means a notice under section 70B; "priority area" means an area declared to be a priority area under section 47A; "priority area notice" means a notice under section 47A;'. 4. Application of section 22 agreements (1) In sections 22(1) and 22(2) of the Catchment and Land Protection Act 1994, for "this Part" substitute "a relevant provision". s. 2 See: Act No. 52/1994. Reprint No. 3 as at 5 August 2004 and amending Act Nos 81/2004, 108/2004 and 7/2005. LawToday: www.dms. dpc.vic. gov.au -- 4 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 3 (2) In section 22(4) of the Catchment and Land Protection Act 1994— (a) for "this Part" (where first occurring) substitute "a relevant provision"; (b) for "this Part" (where secondly occurring) substitute "the relevant provision". (3) After section 22(4) of the Catchment and Land Protection Act 1994 insert— '(5) In this section, "relevant provision" means any provision of the following— (a) Part 3; (b) Division 3 of Part 4, other than section 34; (c) Part 5, other than section 40; (d) Part 5A; (e) Division 2 of Part 8; (f) Part 9.'. 5. Issue of land management notices (1) In section 37(1)(a) of the Catchment and Land Protection Act 1994, after "provision of Part 3" insert "or with a priority area notice or a directions notice". (2) After section 37(1) of the Catchment and Land Protection Act 1994 insert— "(1A) Despite section 85(3), if the Secretary decides to serve a land management notice under sub-section (1), the Secretary must take all reasonable steps to ensure that the notice is served on each land owner of the land subject to the notice.". s. 5 -- 5 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 4 (3) After section 37(2) of the Catchment and Land Protection Act 1994 insert— "(3) The Secretary must not serve a land management notice on a land owner if a directions notice is in force in respect of the land and of the noxious weed or pest animal for which the land management notice would be served.". 6. Requirements before service of notice Sections 39(1) and 39(2) of the Catchment and Land Protection Act 1994 are repealed. 7. Substitution of section 46 For section 46 of the Catchment and Land Protection Act 1994 substitute— "46. Landowner to notify Secretary of compliance with notice (1) A land owner served with a land management notice must give a notice in writing, in accordance with sub-section (2), to the Secretary advising the Secretary as to whether or not the land owner has taken measures to comply with the notice and— (a) in the case of a land owner who has taken any such measures, give in the notice, the prescribed particulars as to the measures that the land owner has taken; or (b) in the case of a land owner who has not taken any such measures, give in the notice, the reason why the land owner has not done so. Penalty: 10 penalty units. s. 6 -- 6 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 5 (2) A notice under sub-section (1) must be given to the Secretary no later than 7 days after the time for compliance with the land management notice that is set out, under section 38(2), in the land management notice.". 8. Insertion of new Part 5A After Part 5 of the Catchment and Land Protection Act 1994 insert— "PART 5A—PRIORITY AREA NOTICE 47A. Notice of declaration of priority area (1) The Minister may, by notice, declare an area of land to be a priority area for the control or eradication of any regionally prohibited weed, regionally controlled weed or established pest animal specified in the declaration. (2) A notice of the Minister under sub- section (1) must be published— (a) in the Government Gazette; and (b) in a newspaper circulating generally in the area specified in the notice. (3) A notice under sub-section (1) has effect from— (a) the date of publication in the Government Gazette; or (b) the date of publication in the newspaper— whichever is the later. s. 8 -- 7 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 6 (4) A notice under sub-section (1) must identify the area of land to which it applies, and may identify that area of land by reference to a plan or map of the land. (5) For the purposes of sub-section (4), the notice may apply, adopt or incorporate any matter contained in any document formulated, issued, prescribed or published by any person, whether— (a) wholly or partly or as amended by the notice; or (b) as formulated, issued, prescribed or published at the time the notice was made or at any time before that time. 47B. Contents of priority area notice (1) In a priority area notice, the Minister must— (a) set out the category of noxious weed or pest animal to which the notice applies; and (b) set out the measures that may be taken by land owners to control or eradicate the noxious weed or pest animal; and (c) set out the time within which measures must be taken. (2) Any measure set out in a priority area notice must be a measure that is prescribed by the regulations. 47C. Service of copy of notice on land owner The Minister may cause a copy of a priority area notice to be served on each land owner of land within the priority area. s. 8 -- 8 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 7 47D. Offence to fail to comply with notice (1) If there is on land within a priority area, a noxious weed or pest animal of the category specified in the priority area notice, and if the land owner of the land has been served with a copy of the notice under section 47C, the land owner— (a) must take one or more of the measures that are specified in the notice, in accordance with the notice, on that land; and (b) must take those measures within the time specified in the notice for taking measures. Penalty: 20 penalty units. (2) Sub-section (1) does not apply to a land owner to the extent that any land management notice that has been served on that land owner applies to the same noxious weed or pest animal and the same land as that to which the priority area notice applies. 47E. Land owner to notify Secretary of measures taken (1) If a land owner in a priority area has been served with a copy of the notice in accordance with section 47C, the land owner must give a notice in writing, in accordance with sub-section (2), to the Secretary advising the Secretary as to whether or not the land owner has taken measures in accordance with the priority area notice, and— s. 8 -- 9 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 8 (a) in the case of a land owner who has taken any such measures, give in the notice, the prescribed particulars as to the measures that the land owner has taken; or (b) in the case of a land owner who has not taken any such measures, give in the notice, the reason why the land owner has not done so. Penalty: 10 penalty units. (2) A notice under sub-section (1) must be given to the Secretary no later than 7 days after the time for compliance with the priority area notice that is set out, under section 47B(1)(c), in the priority area notice. 47F. Relationship between this Part and Part 5 Nothing in this Part is to be taken as preventing the Secretary from serving a land management notice on a land owner in relation to any land that is also the subject of a priority area notice.". 9. Classification of pests—general In section 58(4) of the Catchment and Land Protection Act 1994, after "Victoria" insert "or in another State or a Territory of the Commonwealth". 10. What are regionally prohibited weeds? In section 61 of the Catchment and Land Protection Act 1994— (a) in paragraph (a), before "it is" insert "it does not occur or"; (b) in paragraph (b), after "capable of" insert "growing or". s. 9 -- 10 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 9 11. What are restricted weeds? Section 63(b) of the Catchment and Land Protection Act 1994 is repealed. 12. Action before recommendation After section 69(5) of the Catchment and Land Protection Act 1994 insert— "(6) Sub-section (3) does not apply if the Minister is satisfied that the plant is not or has not or does not have the potential to become a serious threat to primary production, Crown land, the environment or community health in Victoria.". 13. Insertion of new sections 70B, 70C and 70D After section 70A of the Catchment and Land Protection Act 1994 insert— "70B. Directions notice (1) The Secretary may serve a notice on a land owner giving the land owner directions as to measures to be taken on the land of the land owner for the control or eradication of any regionally prohibited weed, regionally controlled weed or established pest animal that is specified in the notice. (2) In a notice under this section, the Secretary must— (a) set out the category of noxious weed or pest animal to which the notice applies; and (b) set out the measures that may be taken by the land owner to control or eradicate the noxious weed or pest animal; and s. 11 -- 11 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 10 (c) set out the time within which such measures must be taken; and (d) describe the land on which the measures are to be taken. (3) Any measure set out in a notice under sub- section (1) must be a measure that is prescribed by the regulations. 70C. Offence to fail to comply with directions notice A land owner on whom a directions notice has been served— (a) must take one or more of the measures that are specified in the notice, in accordance with the notice; and (b) must take those measures within the time specified in the notice for the taking of the measures. Penalty: 20 penalty units. 70D. Land owner to notify Secretary of measures taken under directions notice (1) A land owner on whom a directions notice has been served must give a notice in writing to the Secretary, in accordance with sub- section (2), advising the Secretary as to whether or not the land owner has taken measures in accordance with the notice, and— (a) in the case of a land owner who has taken any such measures, give in the notice, the prescribed particulars as to the measures that the land owner has taken; or s. 13 -- 12 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 11 (b) in the case of a land owner who has not taken any such measures, give in the notice, the reason why the land owner has not done so. Penalty: 10 penalty units. (2) A notice under sub-section (1) must be given to the Secretary no later than 7 days after the time for compliance with the directions notice that is set out, under section 70B(2)(c), in the directions notice.". 14. Spread of noxious weeds After section 71(1)(b)(iii) of the Catchment and Land Protection Act 1994 insert— "(iiia) display in Victoria; or (iiib) plant or propagate in Victoria; or". 15. Amendment to authorised officers' powers to take samples For section 80(2)(c) of the Catchment and Land Protection Act 1994 substitute— "(c) without payment, take, or require the occupier of the land to give, samples of any of the following— (i) plants or parts of plants; (ii) an animal or part of an animal; (iii) soil, sand, gravel or stone; (iv) fodder or grain.". s. 14 -- 13 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 12 16. Entry with notice (1) For section 81(1)(c) of the Catchment and Land Protection Act 1994 substitute— "(c) in order to ascertain whether— (i) a priority area notice; or (ii) a directions notice; or (iii) a direction under section 70 or 72— in respect of land has been complied with.". (2) For section 81(3)(c) of the Catchment and Land Protection Act 1994 substitute— "(c) without payment, take, or require the occupier of the land to give, samples of any of the following— (i) plants or parts of plants; (ii) an animal or part of an animal; (iii) soil, sand, gravel or stone; (iv) fodder or grain.". 17. Powers of authorised officers on emergency entry For section 82(4)(c) of the Catchment and Land Protection Act 1994 substitute— "(c) without payment, take, or require the occupier of the land to give, samples of any of the following— (i) plants or parts of plants; (ii) an animal or part of an animal; (iii) soil, sand, gravel or stone; (iv) fodder or grain;". s. 16 -- 14 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 13 18. Entry with warrant In section 83 of the Catchment and Land Protection Act 1994— (a) after sub-section (2)(a) insert— "(ab) to re-enter that land (by force if necessary) if re-entry is necessary to complete any of the things specified in the warrant; and"; (b) in sub-section (3)(c), after "entry" insert "and any necessary re-entry". 19. Substitution of section 83A For section 83A of the Catchment and Land Protection Act 1994 substitute— "83A. Further seizure powers A search warrant under section 83 authorises an authorised officer executing the search warrant— (a) to seize or take a sample of any thing of the kind described in the warrant; and (b) to seize or take a sample of any thing which is not of the kind described in the warrant if— (i) the authorised officer believes, on reasonable grounds, that the thing— (A) is of a kind which could have been included in a search warrant issued under this Part; or (B) will afford evidence about the commission of an offence against this Act or the regulations; and s. 18 -- 15 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 14 (ii) in the case of seizure, the authorised officer believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the commission of an offence against this Act or the regulations.". 20. Insertion of new section 83O After section 83N of the Catchment and Land Protection Act 1994 insert— "83O. Authorised officer may require access to ratepayer details (1) For the purposes of exercising a power under this Act, an authorised officer may require the person having custody of any records relating to ratepayers (within the meaning of the Local Government Act 1989) to produce them to the officer. (2) On production of any records under sub- section (1), an authorised officer may— (a) inspect the records for the purposes of finding— (i) the name and address or other contact details of a ratepayer; or (ii) the address or description of any land in respect of which the ratepayer is liable to pay rates and charges under Part 8 of the Local Government Act 1989; and (b) take extracts or copies from the records for the purpose of exercising a power under this Act. s. 20 -- 16 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 15 (3) An authorised officer must not be charged a fee for any thing required to be done, or done, by the authorised officer under this section.". 21. Offences relating to notices In section 84(1)(e) of the Catchment and Land Protection Act 1994, after "or the regulations" insert ", or in a notice under section 46(1), 47E or 70D,". 22. Insertion of new section 84A After section 84 of the Catchment and Land Protection Act 1994 insert— "84A. Conduct by officers, employees or agents (1) If in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show— (a) that the conduct was engaged in by an officer of that body corporate within the scope of the officer's actual or apparent authority and the officer had that state of mind; or (b) that the conduct was engaged in by an agent of the body corporate and— (i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; and (ii) the agent had that state of mind; and (iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in. s. 21 -- 17 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 16 (2) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by— (a) an officer of the body corporate within the scope of the officer's actual or apparent authority; or (b) any other person at the specific direction or with the specific consent or agreement of an officer of the body corporate, if the consent or agreement is within the scope of the actual or apparent authority of the officer. (3) If in any proceedings under this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show— (a) that the conduct was engaged in by an employee of that person within the scope of the employee's actual or apparent authority and the employee had that state of mind; or (b) that the conduct was engaged in by an agent of the person and— (i) the agent acted at the specific direction or with the specific consent or agreement of the person; and (ii) the agent had that state of mind; and (iii) the person was aware of the agent's state of mind when the conduct was engaged in.". s. 22 -- 18 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 17 23. Insertion of new section 85A After section 85 of the Catchment and Land Protection Act 1994 insert— "85A. Persons served with notices to inform Secretary if not land owner A person— (a) who is served with a land management notice, a priority area notice or a directions notice; and (b) who is not, at the time of service of the notice, the land owner or occupier of the land to which the notice relates— must, within 7 days of being served with the notice, notify the Secretary in writing that the person is not the land owner or occupier of the land. Penalty: 10 penalty units.". 24. Regulation making powers (1) In section 95(1) of the Catchment and Land Protection Act 1994— (a) after paragraph (b) insert— "(ba) prescribing the measures for controlling or eradicating noxious weeds or pest animals;"; (b) after paragraph (k) insert— "(ka) any particulars or information required for notices under this Act;". s. 23 -- 19 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 18 (2) After section 95(2)(e) of the Catchment and Land Protection Act 1994 insert— "(ea) may prescribe any matter or thing, that is required or permitted by this Act to be prescribed, by reference to a kind, category or class of matter or thing; and". 25. Transitional provision After section 103 of the Catchment and Land Protection Act 1994 insert— "104. Transitional provision Catchment and Land Protection (Further Amendment) Act 2006 Section 46, as in force before the commencement of section 7 of the Catchment and Land Protection (Further Amendment) Act 2006, continues to apply to any prosecution under that section that had not been determined immediately before that commencement, as if section 7 of the Catchment and Land Protection (Further Amendment) Act 2006 had not been enacted.". ═══════════════ s. 25 -- 20 of 21 -- Act No. 67/2006 Catchment and Land Protection (Further Amendment) Act 2006 19 ENDNOTES † Minister's second reading speech— Legislative Assembly: 20 July 2006 Legislative Council: 12 September 2006 The long title for the Bill for this Act was "to amend the Catchment and Land Protection Act 1994 and for other purposes." Endnotes -- 21 of 21 --