Catchment and Land Protection (Amendment) Act 2003

Victorian Legislation and Parliamentary Documents i Catchment and Land Protection (Amendment) Act 2003 Act No. 61/2003 TABLE OF PROVISIONS Section Page 1. Purposes 1 2. Commencement 2 3. Principal Act 2 4. New division heading substituted 2 5. Penalty for offence to disobey land use condition 2 6. When can a land management notice be issued? 3 7. New section 40 substituted 3 40. Status of land management notice 3 8. Offence to disobey land management notice 3 9. Revocation of land management notice 4 10. New section 42A inserted 4 42A. Variation of land management notice 4 11. New penalty for non-compliance with notice 5 12. Land owner must advise Secretary of compliance with notice 5 13. Review by Victorian Civil and Administrative Tribunal 5 14. Application for declaration 6 15. New section 58A inserted 6 58A. Emergency declaration of State prohibited weed 6 16. What cannot be declared under Part 8? 8 17. Revocation of declaration 8 18. Controlling noxious weeds 8 19. New section 70A inserted 9 70A. Removing particular vehicles or other things on to a road 9 20. Spread of noxious weeds 10 21. Destruction etc. of noxious weeds 11 22. Control of established pest animals 11 23. Amendment to division heading 12 24. Offence to import, keep or sell pest animals 12 25. New section 75A inserted 13 75A. Offence to release pest animals 13 26. Permits 14 27. New section 77A inserted 14 77A. Non-compliance with permit conditions 14 28. Insertion of new section 79A 15 79A. Authorised officers to produce evidence of appointment 15 -- 1 of 37 -- Victorian Legislation and Parliamentary Documents Section Page ii 29. Insertion of new sections 80 to 83N 15 80. Entry with consent 15 81. Entry with notice 17 82. Emergency entry 19 83. Entry with warrant 21 83A. Seizure of things not mentioned in the warrant 24 83B. Announcement before entry 24 83C. Details of warrant to be given to occupier 25 83D. Searches of vehicles and boats 25 83E. Searches of vehicles for noxious weeds 26 83F. Authorised officer may have assistance 27 83G. Return of seized things 27 83H. Magistrates' Court may extend 90 day period 28 83I. Disposal of seized things 28 83J. Requirements as to taking samples and seizure 29 83K. Samples 29 83L. Retention notices 30 83M. Evidentiary provisions relating to retention notices 31 83N. Authorised officer to comply with prescribed procedures 31 30. Offences relating to enforcement 32 31. Notices for the purpose of this Act 32 32. Certificates 32 33. Regulation-making power for the keeping of established pest animals 33 34. Substitution of new clause 4 in Schedule 1 33 35. Amendment to Extractive Industries Development Act 1995 34 ═══════════════ ENDNOTES 35 -- 2 of 37 -- Victorian Legislation and Parliamentary Documents 1 Catchment and Land Protection (Amendment) Act 2003† [Assented to 2 September 2003] The Parliament of Victoria enacts as follows: 1. Purposes The main purposes of this Act are— (a) to amend the Catchment and Land Protection Act 1994 to— (i) make further provision in relation to the control of noxious weeds and pest animals; (ii) increase penalties for existing offences; Victoria No. 61 of 2003 -- 3 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 2 (b) to make a minor amendment to the Extractive Industries Development Act 1995. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 5 January 2004 it comes into operation on that day. 3. Principal Act In this Act, the Catchment and Land Protection Act 1994 is called the Principal Act. 4. New division heading substituted For the heading to Division 2 of Part 2 of the Principal Act substitute— "Division 2—Catchment Management Authorities". 5. Penalty for offence to disobey land use condition For the penalty at the foot of section 35(1) of Principal Act substitute— "Penalty: 60 penalty units.". s. 2 See: Act No. 52/1994. Reprint No. 2 as at 31 January 1999 and amending Act Nos 96/1998 and 74/2000. LawToday: www.dms. dpc.vic. gov.au -- 4 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 3 6. When can a land management notice be issued? In section 37(1) of the Principal Act— (a) in paragraph (a) omit "or 8"; (b) for paragraph (b) substitute— "(b) if satisfied that measures need to be taken by the land owner to eradicate or prevent the growth or spread of noxious weeds that are not State prohibited weeds.". 7. New section 40 substituted For section 40 of the Principal Act substitute— "40. Status of land management notice A land management notice is binding on— (a) the land owner served with it; and (b) each subsequent land owner for the time being of the land to which it applies as if each such owner had been served with the land management notice on becoming the land owner.". 8. Offence to disobey land management notice For section 41(1) of the Principal Act substitute— "(1) A land owner of land to which a land management notice applies— (a) who has been served with the notice; or (b) to whom particulars of the notice have been given in a statement under section 32 of the Sale of Land Act 1962; or s. 6 -- 5 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 4 (c) who, at the time of becoming owner of the land, was aware or ought reasonably to have been aware of the notice— must comply with the notice. Penalty: 240 penalty units.". 9. Revocation of land management notice After section 42(2) of the Principal Act insert— "(3) Sub-section (2) does not apply to a land management notice that only deals with the control of noxious weeds or pest animals or both.". 10. New section 42A inserted After section 42 of the Principal Act insert— "42A. Variation of land management notice (1) The Secretary may, before the end of the compliance period or extended compliance period, serve a notice on the land owner varying the requirements contained in a land management notice. (2) A variation under sub-section (1) may only be made at the request of a land owner who became the land owner of land to which the land management notice applied after the land management notice was served. (3) In considering whether to vary the requirements of a land management notice under sub-section (1), the Secretary must take into account— (a) any change in land use proposed by the land owner; and s. 9 -- 6 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 5 (b) the type and extent of work to be carried out or measures or action to be taken that would be reasonable in the circumstances.". 11. New penalty for non-compliance with notice For the penalty at the foot of section 43(7) of the Principal Act substitute— "Penalty: 120 penalty units.". 12. Land owner must advise Secretary of compliance with notice (1) In section 46 of the Principal Act, for "he or she" substitute "the land owner". (2) For the penalty at the foot of section 46 of the Principal Act substitute— "Penalty: 20 penalty units.". 13. Review by Victorian Civil and Administrative Tribunal (1) After section 48(2) of the Principal Act insert— "(2A) A person who has requested a variation of the requirements contained in a land management notice may apply to the Victorian Civil and Administrative Tribunal for review of— (a) a failure to grant that request within 14 days after it was made; or (b) a decision refusing that request.". (2) In section 48(3) of the Principal Act, for "and (2)" substitute ", (2) and (2A)". (3) In section 48(4) of the Principal Act— (a) in paragraph (c), for "(2)—" substitute "(2); or"; s. 11 -- 7 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 6 (b) after paragraph (c) insert— "(d) whichever is the earlier of— (i) the date on which the request for a variation of the requirements contained in a land management notice was refused; or (ii) the end of the 14 day period referred to in sub-section (2A)—". 14. Application for declaration After section 48A(3) of the Principal Act insert— "(4) Sub-section (1) does not apply to a decision in respect of a land management notice that deals only with the control of noxious weeds or pest animals or both.". 15. New section 58A inserted After section 58 of the Principal Act insert— "58A. Emergency declaration of State prohibited weed (1) The Minister may, by a notice published in the Government Gazette, declare a plant to be a State prohibited weed. (2) The declaration must apply to the whole State. (3) The declaration must— (a) state that it is an emergency weed declaration; and (b) state the nature of the emergency; and (c) if the plant is already declared to be a noxious weed of a different category, state its former category. s. 14 -- 8 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 7 (4) A copy of the notice must be published— (a) in a daily newspaper circulating generally in Victoria; and (b) in a weekly newspaper circulating generally in rural Victoria; and (c) on the Department's Internet site. (5) The Minister must not make a declaration under this section in relation to a plant unless he or she is satisfied that urgent action is needed to protect the State from an adverse economic, environmental or social impact caused or likely to be caused by the plant. (6) If under the declaration the category of a noxious weed has changed, the declaration of the former category of the noxious weed ceases to have effect while the declaration made under this section is in force. (7) The Minister must revoke the declaration by a notice published in the Government Gazette as soon as possible after being satisfied that the emergency no longer exists. (8) Unless earlier revoked, the declaration ceases to have effect 3 months after the notice under sub-section (4) is published in the Government Gazette. (9) A copy of a notice under sub-section (7) must be published— (a) in a daily newspaper circulating generally in Victoria; and (b) in a weekly newspaper circulating generally in rural Victoria; and (c) on the Department's Internet site.". s. 15 -- 9 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 8 16. What cannot be declared under Part 8? (1) Insert the following heading to section 59 of the Principal Act— "What cannot be declared under this Part?". (2) For section 59(1) of the Principal Act substitute— "(1) The Minister cannot recommend a plant under section 58 or declare a plant under section 58A if it is part of a taxon or community of flora listed in an Order under section 10(1) of the Flora and Fauna Guarantee Act 1988.". (3) In section 59(3)(a) of the Principal Act, for "Schedule 2" substitute "an Order under section 10(1)". 17. Revocation of declaration In section 68(1) of the Principal Act for "this Part" substitute "section 58". 18. Controlling noxious weeds (1) For section 70(1) of the Principal Act substitute— "(1) The Secretary may— (a) by instrument served on a land owner give directions to the land owner to prevent the growth or spread of State prohibited weeds; or (b) by instrument served on the owner or person in possession of grain, fodder, equipment, vehicles or animals that the Secretary considers likely to spread noxious weeds, give directions to the owner or person in possession to restrict the movement of that grain, s. 16 -- 10 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 9 fodder, equipment or those vehicles or animals from, on or to land.". (2) For section 70(2) of the Principal Act substitute— "(2) A land owner served with a direction under sub-section (1)(a) must comply with it. Penalty: 120 penalty units.". (3) After section 70(2) of the Principal Act insert— "(2A) A person served with a direction under sub- section (1)(b) must comply with it. Penalty: 120 penalty units.". (4) For section 70(3) of the Principal Act substitute— "(3) A person on whom a direction has been served under this section must bear the cost of complying with the direction.". 19. New section 70A inserted After section 70 of the Principal Act insert— "70A. Removing particular vehicles or other things on to a road (1) A person must not remove a vehicle (together with any trailer) that is used or intended to be used for carrying, moving or transporting— (a) hay, grain, fodder or livestock; or (b) machinery or equipment used for building or maintaining— (i) a road or roadside; or s. 19 -- 11 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 10 (ii) electricity, gas, water, telecommunications or rail infrastructure— from land on to a road without first taking reasonable precautions to ensure that the vehicle is free from— (c) the seeds of any noxious weed; and (d) any other part of a noxious weed that is capable of growing. Penalty: 120 penalty units. (2) A person must not remove machinery, implements or other equipment from land on to a road without first taking reasonable precautions to ensure that the equipment is free from— (a) the seeds of any noxious weed; and (b) any other part of a noxious weed that is capable of growing. Penalty: 120 penalty units.". 20. Spread of noxious weeds (1) Section 71(1)(a) of the Principal Act is repealed. (2) For section 71(1)(b) of the Principal Act substitute— "(b) without a permit from the Secretary— (i) buy or offer to buy in Victoria; or (ii) sell or offer to sell in Victoria; or (iii) possess for the purposes of sale in Victoria; or (iv) wilfully bring or cause to be brought into Victoria; or s. 20 -- 12 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 11 (v) transport within Victoria— the following— (vi) a noxious weed; or (vii) the seeds of a noxious weed whether or not packed or mixed with the seeds of any other plants; or (viii) any part of a noxious weed that is capable of growing whether or not packed or mixed with the parts of any other plants; or". (3) Section 71(1)(g) of the Principal Act is repealed. (4) For the penalty at the foot of section 71(1) of the Principal Act substitute— "Penalty: 120 penalty units.". (5) For the penalty at the foot of section 71(5) of the Principal Act substitute— "Penalty: 120 penalty units.". 21. Destruction etc. of noxious weeds (1) At the foot of section 72(3) of the Principal Act insert— "Penalty: 120 penalty units.". (2) After section 72(3) of the Principal Act insert— "(3A) A person served with an instrument under sub-section (1)(a) must without delay advise the Secretary when he or she has complied with it. Penalty: 20 penalty units.". 22. Control of established pest animals Section 73 of the Principal Act is repealed. s. 21 -- 13 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 12 23. Amendment to division heading In the heading to Division 3 of Part 8 of the Principal Act, for "and Trading in" substitute ", Trading in and Releasing of". 24. Offence to import, keep or sell pest animals (1) For the penalty at the foot of section 75(1) of the Principal Act substitute— "Penalty: 480 penalty units.". (2) For the penalty at the foot of section 75(2) of the Principal Act substitute— "Penalty: 240 penalty units.". (3) For the penalty at the foot of section 75(3) of the Principal Act substitute— "Penalty: 120 penalty units.". (4) For the penalty at the foot of section 75(4) of the Principal Act substitute— "Penalty: 60 penalty units.". (5) In section 75(5)(f) of the Principal Act, for "an established pest animal" substitute "established pest animals". (6) In section 75(5)(g)(ii) of the Principal Act, for "research establishment under" substitute "scientific establishment under section 26 of". (7) After section 75(5) of the Principal Act insert— "(6) Sub-sections (3) and (4) do not apply to— (a) the keeping of a regulated pest animal or an established pest animal at premises licensed as a breeding establishment under section 29 of the Prevention of Cruelty to Animals Act 1986, in accordance with the relevant licence; or s. 23 -- 14 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 13 (b) the selling of a regulated pest animal or an established pest animal— (i) from premises licensed as a breeding establishment under section 29 of the Prevention of Cruelty to Animals Act 1986, in accordance with the relevant licence; and (ii) to an institution licensed as a scientific establishment under section 26 of the Prevention of Cruelty to Animals Act 1986.". 25. New section 75A inserted After section 75 of the Principal Act insert— "75A. Offence to release pest animals (1) A person must not release a prohibited pest animal. Penalty: 480 penalty units. (2) A person must not release a controlled pest animal. Penalty: 240 penalty units. (3) A person must not release a regulated pest animal. Penalty: 120 penalty units. (4) A person must not release an established pest animal. Penalty: 60 penalty units. (5) Sub-sections (1) to (4) do not apply to the releasing of a pest animal in accordance with a permit under this Division.". s. 25 -- 15 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 14 26. Permits In section 77 of the Principal Act— (a) in sub-section (1), for "or sell" substitute ", sell or release"; (b) in sub-section (6), for "or sold" substitute ", sold or released". 27. New section 77A inserted After section 77 of the Principal Act insert— "77A. Non-compliance with permit conditions (1) A person granted a permit under this Division in respect of a prohibited pest animal must not contravene a condition specified in the permit. Penalty: 480 penalty units. (2) A person granted a permit under this Division in respect of a controlled pest animal must not contravene a condition specified in the permit. Penalty: 240 penalty units. (3) A person granted a permit under this Division in respect of a regulated pest animal must not contravene a condition specified in the permit. Penalty: 120 penalty units. (4) A person granted a permit under this Division in respect of an established pest animal must not contravene a condition specified in the permit. Penalty: 60 penalty units.". s. 26 -- 16 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 15 28. Insertion of new section 79A After section 79 of the Principal Act insert— "79A. Authorised officers to produce evidence of appointment An authorised officer must produce evidence of his or her appointment for inspection— (a) before exercising a power under this Part; and (b) at any time during the exercise of a power under this Part, if asked to do so. Penalty: 10 penalty units.". 29. Insertion of new sections 80 to 83N For sections 80, 81, 82 and 83 of the Principal Act substitute— "80. Entry with consent (1) If an authorised officer believes on reasonable grounds that any provision of the Act or the regulations has not been or is not being complied with in respect of land, the authorised officer may, at a reasonable time, enter and search the land with the consent of the occupier of the land. (2) An authorised officer who enters land under this section may do all or any of the following— (a) search and examine land or goods or vehicles on the land; (b) ask questions in connection with the authorised officer's functions under this Act; s. 28 -- 17 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 16 (c) without payment, take, or require the occupier of the land to give, samples of soil, stone or similar material or goods on the land. (3) An authorised officer must not enter and search any land under this section unless, before the occupier consents to that entry, the authorised officer has informed the occupier— (a) of the purpose of the search; and (b) that the occupier may refuse to give consent to the entry and search; and (c) that the occupier may refuse to consent to the taking of or the requirement to give any sample of soil, stone or similar material or goods from the land during the search; and (d) that the occupier may refuse to allow an examination of goods or vehicles on the land during the search; and (e) that the occupier may refuse to answer questions during the search; and (f) that any sample of a thing taken or required to be given during the search with the consent of the occupier may be used in evidence in proceedings. (4) If an occupier consents to the taking of or the requirement to give any thing during a search under this section, the authorised officer must before taking or requiring the giving of the thing ask the occupier to sign an acknowledgment stating— (a) that the occupier has consented to the taking of or requirement to give the thing; and s. 29 -- 18 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 17 (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the authorised officer leaves the land. 81. Entry with notice (1) An authorised officer may, at a reasonable time, enter and search land after having given at least 24 hours notice to the occupier of the land— (a) if he or she believes on reasonable grounds that section 20 has not been or is not being complied with; or (b) at any time after the end of the period of compliance stated in a land management notice under Division 1 of Part 5 applying to the land, in order to ascertain whether the notice has been complied with; or (c) in order to ascertain whether a direction under section 70 or 72 in respect of the land has been complied with. (2) Sub-section (1) does not apply— (a) if the occupier of the land, after being given notice under sub-section (1), responds to the notice by stating that entry to the land is refused; or (b) to a dwelling. (3) An authorised officer who enters land under this section may do all or any of the following— (a) search and examine land or goods or vehicles on the land; s. 29 -- 19 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 18 (b) ask questions in connection with the authorised officer's functions under this Act; (c) without payment, take, or require the occupier of the land to give, samples of soil, stone or similar material or goods on the land. (4) Notice given under sub-section (1) must be in writing and must inform the occupier— (a) of the purpose of the search; and (b) that the occupier may refuse to give consent to the entry and search; and (c) that the occupier may refuse to consent to the taking of or the requirement to give any sample of soil, stone or similar material or goods from the land during the search; and (d) that the occupier may refuse to allow an examination of goods or vehicles on the land during the search; and (e) that the occupier may refuse to answer questions during the search; and (f) that any sample of a thing taken or required to be given during the search with the consent of the occupier may be used in evidence in proceedings. (5) If the occupier is present during a search under this section and consents to the taking of, or the requirement to give, any thing during the search, the authorised officer must before taking or requiring the giving of the thing ask the occupier to sign an acknowledgment stating— s. 29 -- 20 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 19 (a) that the occupier has consented to the taking of or requirement to give the thing; and (b) the date and time that the occupier consented. (6) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the authorised officer leaves the land. (7) If an authorised officer exercises a power of entry under this section without the occupier being present the authorised officer must, on leaving the land, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of all things done while on the land; and (d) the time of departure; and (e) the procedure for contacting the Secretary for further details of the entry. 82. Emergency entry (1) An authorised officer may enter and search land— (a) if he or she believes on reasonable grounds that a State prohibited weed is on the land; or (b) at any time after the end of the period of compliance stated in an interim land management notice applying to the land, in order to ascertain whether the notice has been complied with; or (c) to take action under section 79. s. 29 -- 21 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 20 (2) If an authorised officer believes on reasonable grounds that a serious land degradation problem exists on land, the authorised officer may at any reasonable time, enter and search that land— (a) if he or she believes on reasonable grounds that section 20 has not been or is not being complied with; or (b) if he or she believes on reasonable grounds that a contravention of Part 7 may have occurred on the land; or (c) in order to ascertain whether an authority, direction, order, permit or land use condition under this Act is being complied with; or (d) at any time after the end of the period of compliance stated in a land management notice under Division 1 of Part 5 applying to the land, in order to ascertain whether the notice has been complied with. (3) Sub-sections (1) and (2) do not apply to a dwelling. (4) An authorised officer who enters land under this section may do all or any of the following, if he or she believes it necessary for the purposes of sub-section (1) or (2)— (a) search and examine land or goods or vehicles on the land; (b) ask questions in connection with the authorised officer's functions under this Act; s. 29 -- 22 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 21 (c) without payment, take, or require the occupier of the land to give, samples of soil, stone or similar material or goods on the land; (d) ask a person to state his or her name and address if the authorised officer— (i) believes on reasonable grounds that the person has committed an offence under Part 8 relating to a pest animal; and (ii) has informed the person of the grounds for that belief in sufficient detail to allow the person to understand the nature of the offence. (5) If an authorised officer exercises a power of entry under this section without the occupier being present the authorised officer must, on leaving the land, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of all things done while on the land; and (d) the time of departure; and (e) the procedure for contacting the Secretary for further details of the entry. 83. Entry with warrant (1) An authorised officer may apply to a magistrate for the issue of a search warrant in relation to particular land to enter that land if he or she believes on reasonable grounds that there is on the land evidence of the commission of an offence against this Act or s. 29 -- 23 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 22 the regulations in relation to pest animals or noxious weeds. (2) If a magistrate is satisfied by the evidence, on oath or by affidavit of the authorised officer that there are reasonable grounds to believe that there is a thing or things of a particular kind on the land that are connected with the commission of an offence against this Act or the regulations in relation to pest animals or noxious weeds, the magistrate may issue a warrant, in accordance with the Magistrates' Court Act 1989, authorising an authorised officer named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment— (a) to enter the land named or described in the warrant, if necessary by force; and (b) to do all or any of the following things specified in the warrant— (i) search for a thing or things of a particular kind; (ii) inspect, extract or copy a document or document of a particular kind; (iii) inspect and take photographs (including video recordings) of a thing or things of a particular kind; (iv) seize and impound a pest animal or noxious weed; (v) with whatever assistance is required, take and keep samples of— s. 29 -- 24 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 23 (i) the blood, any bodily fluids or other matter from any pest animal; or (ii) any noxious weed— named or described in the warrant and which the authorised officer believes, on reasonable grounds, to be connected with the alleged commission of an offence; and (c) if necessary, destroy or otherwise dispose of, or order a land owner to destroy, a pest animal or noxious weed seized under paragraph (b) or section 83A. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required and the nature of the alleged offence; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) An authorised officer may apply for a search warrant to do any of the things referred to in sub-section (2)(b). (5) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section. s. 29 -- 25 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 24 (6) Despite sub-section (5) or anything in the Magistrates' Court Act 1989, a warrant under this section does not authorise an authorised officer to arrest a person. 83A. Seizure of things not mentioned in the warrant A search warrant under section 83 authorises an authorised officer executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— (a) the authorised officer believes, on reasonable grounds, that the thing— (i) is of a kind which could have been included in a search warrant issued under this Part; or (ii) will afford evidence about the commission of an offence against this Act or the regulations; and (b) 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. 83B. Announcement before entry (1) On executing a search warrant, the authorised officer executing the warrant— (a) must announce that he or she is authorised by the warrant to enter the land; and s. 29 -- 26 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 25 (b) if the authorised officer has been unable to obtain unforced entry, must give any person on the land an opportunity to allow entry to the land. (2) An authorised officer need not comply with sub-section (1) if he or she believes, on reasonable grounds that immediate entry to the land is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. 83C. Details of warrant to be given to occupier (1) If the occupier is present on land where a search warrant is being executed, the authorised officer must— (a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present on land where a search warrant is being executed, the authorised officer must— (a) identify himself or herself to a person on the land; and (b) give to the person a copy of the warrant. 83D. Searches of vehicles and boats (1) An authorised officer or a member of the police force may, at any time, without warrant, stop if necessary, and enter and search any boat or vehicle which he or she reasonably believes has been used by persons committing an offence against Division 3 of Part 8. s. 29 -- 27 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 26 (2) An authorised officer or a member of the police force who has entered a vehicle or boat and is conducting a search under sub- section (1) may do any one or more of the following— (a) inspect and take photographs (including video recordings) of the boat or vehicle or any thing found during the course of the search; (b) with whatever assistance is required, take and keep samples of the blood, any bodily fluids or other matter from any pest animal found during the course of the search; (c) with whatever assistance is required, mark any pest animal found during the course of the search for the purpose of later being able to identify it; (d) inspect and make copies of or take extracts from any document found during the course of the search; (e) seize any pest animal found during the course of the search if the authorised officer or member of the police force believes on reasonable grounds that it is necessary to seize the animal in order to prevent its concealment, loss or destruction. 83E. Searches of vehicles for noxious weeds (1) An authorised officer may, at any time, without a warrant, stop if necessary and search any vehicle if the authorised officer believes on reasonable grounds that section 70A(1) has not been complied with. s. 29 -- 28 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 27 (2) An authorised officer who conducts a search under this section may— (a) direct the operator of the vehicle to ensure that the vehicle is free from the seeds of any noxious weeds and any other part of a noxious weed that is capable of growing; or (b) take steps to ensure that the vehicle is free from such seeds or any part of a noxious weed. 83F. Authorised officer may have assistance An authorised officer who enters land or a vehicle or boat under this Division may do so with any assistance that he or she requires. 83G. Return of seized things (1) Subject to sub-section (2), if any thing is seized under this Act and— (a) proceedings are not commenced against any person for any offence arising out of the circumstances of the seizure within 90 days after the seizure; or (b) proceedings are commenced within 90 days after the seizure but are subsequently discontinued; or (c) the reason for the seizure no longer exists— the Secretary must order the return of the thing to the owner immediately and must notify the owner in writing accordingly. (2) Sub-section (1) does not apply to anything, the sale, possession or use of which, is prohibited by or under this Act. s. 29 -- 29 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 28 (3) Any thing seized under this Act and not claimed within 12 months after the seizure, may be destroyed or sold and the proceeds of sale paid to the Consolidated Fund. 83H. Magistrates' Court may extend 90 day period (1) An authorised officer may apply to the Magistrates' Court within 90 days after seizing a thing under this Act for an extension of the period for which the authorised officer may retain the thing. (2) The Magistrates' Court may order the extension if it is satisfied that retention of the thing is necessary— (a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. 83I. Disposal of seized things (1) If a person is found guilty by a court of an offence against this Act or the regulations, the court may, in addition to imposing any other penalty, order any thing seized under this Act which relates to that offence to be destroyed or otherwise disposed of in the manner specified in the order. s. 29 -- 30 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 29 (2) The Magistrates' Court may, on the application of an authorised officer, order that any thing seized under this Act be destroyed or otherwise disposed of, if the Court is satisfied that— (a) the owner of the thing cannot be found; or (b) in the case of a pest animal, the person apparently in possession of the animal does not hold a permit under Part 8 to do so. 83J. Requirements as to taking samples and seizure (1) An authorised officer or member of the police force may not take samples of a thing or seize a thing apparently in the possession of a person unless the officer or member makes out or tenders to the person a written receipt for the sample taken or thing seized. (2) If the officer or member is unable to ascertain the identity of the owner or custodian of the thing seized or sampled, the officer or member must leave a receipt with or post it to the person apparently in charge of the thing seized. 83K. Samples If an authorised officer or member of the police force proposes to take samples, he or she must— (a) advise the owner, if possible, before taking the sample that it is taken for the purpose of analysis; and (b) if, in the opinion of the officer it is reasonably possible, divide the sample into 3 parts and give one part to the s. 29 -- 31 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 30 owner, one part to the analyst and keep one part untouched for future comparison; and (c) return the sample to the person from whom it was taken within 28 days, if the sample is not required for the purposes of proceedings under this Act or the regulations. 83L. Retention notices (1) If an authorised officer believes on reasonable grounds that any thing has been taken or is being held in contravention of Division 3 of Part 8 or a corresponding law of another State, a Territory of the Commonwealth or the Commonwealth, the officer may issue the person holding the thing with a notice requiring that person to keep the thing in his or her possession and not to sell or dispose of the thing. (2) A notice under sub-section (1)— (a) must be in writing; and (b) has effect for the period specified in the notice (which must not be more than 90 days from the issue of the notice); and (c) may be cancelled by the person who issued the notice; and (d) is subject to any terms and conditions specified in the notice. (3) If the Secretary is of the opinion that it is reasonably necessary to do so, the Secretary may extend the period for which a notice under sub-section (1) has effect under sub- section (2). s. 29 -- 32 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 31 (4) If the Secretary extends the period for which a notice under sub-section (1) has effect, the Secretary must, before the expiry of the original extension— (a) notify the person to whom the notice is issued of the extension; and (b) specify in the notice the period for which the extension is to have effect. (5) A person to whom a notice under sub-section (1) has been issued must comply with the notice. Penalty: 120 penalty units. 83M. Evidentiary provisions relating to retention notices (1) In any proceedings under section 83L, evidence that a thing, specified in a notice under section 83L as being in the possession of a particular person, is no longer in the possession of that person is evidence, and, in the absence of evidence to the contrary, is proof that the person has not complied with the notice. (2) In any proceedings under this Act, the fact that a thing is specified in a notice under section 83L as being in the possession of a particular person is evidence, and, in the absence of evidence to the contrary, is proof that the thing was in the possession of that person at the time the notice was issued. 83N. Authorised officer to comply with prescribed procedures In exercising a power under this Division an authorised officer must comply with any prescribed procedures.". s. 29 -- 33 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 32 30. Offences relating to enforcement (1) In section 84(1) of the Principal Act— (a) in paragraph (e), for "respect." substitute "respect; or"; (b) after paragraph (e) insert— "(f) in any way, hold himself or herself out to be an authorised officer if the person is not an authorised officer.". (2) For the penalty at the foot of section 84(1) of the Principal Act substitute— "Penalty: 60 penalty units.". (3) After section 84(2) of the Principal Act insert— "(3) Sub-section (2) does not apply to a person who is asked to state his or her name and address by an authorised officer in exercising a power under this Part.". 31. Notices for the purpose of this Act In section 85(1)(a) of the Principal Act, for "form" substitute "manner". 32. Certificates In section 90 of the Principal Act— (a) in sub-section (4)(c)(v) for "land." substitute "land; and"; (b) after sub-section (4)(c) insert— "(d) if a land management notice was in force on the date specified in the certificate, be accompanied by a copy of that land management notice.". s. 30 -- 34 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 33 33. Regulation-making power for the keeping of established pest animals For section 95(1)(c) of the Principal Act substitute— "(c) in relation to established pest animals prescribing— (i) the conditions under which established pest animals may be kept; and (ii) the purposes for which established pest animals may be kept; and (iii) the types of species of established pest animal that may be kept; and (iv) the maximum number of established pest animals that may be kept;". 34. Substitution of new clause 4 in Schedule 1 For clause 4 of Schedule 1 to the Principal Act substitute— '4. Remuneration (1) A member of a body who is not— (a) a public sector employee; or (b) a member of staff of a municipal council— is entitled to the remuneration and allowances (if any) fixed by the Minister. (2) In this clause "public sector employee" has the same meaning as in the Public Sector Management and Employment Act 1998.'. s. 33 -- 35 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 34 35. Amendment to Extractive Industries Development Act 1995 After section 5(4) of the Extractive Industries Development Act 1995 insert— '(5) The provisions of this Act do not apply to or with respect to the carrying out of any "extractive activity" within the meaning of the Catchment and Land Protection Act 1994.'. ═══════════════ s. 35 See: Act No. 67/1995. Reprint No. 2 as at 16 November 2002. LawToday: www.dms. dpc.vic. gov.au -- 36 of 37 -- Victorian Legislation and Parliamentary Documents Act No. 61/2003 Catchment and Land Protection (Amendment) Act 2003 35 ENDNOTES † Minister's second reading speech— Legislative Council: 10 April 2003 Legislative Assembly: 6 May 2003 The long title for the Bill for this Act was "to amend the Catchment and Land Protection Act 1994 in relation to noxious weeds and pest animals and for other purposes." Endnotes -- 37 of 37 --