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Contents (2003 - 103)
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Native Vegetation Act 2003 No 103
Current version for 1 January 2014 to date (accessed 28 May 2017 at 10:56)
Part 5
Part 5 Enforcement
Division 1 Preliminary
33   Application of Part
(1)  For the purposes of this Part, a reference to a contravention of this Act is a reference to a contravention of the following:
(a)  this Act or the regulations,
(b)  a property vegetation plan,
(c)  the conditions of a development consent granted in accordance with this Act,
(d)  an order or direction of the Director-General under this Part.
(2)  In this section, this Act includes the Native Vegetation Conservation Act 1997.
34   Appointment of authorised officers
(1)  The Minister may appoint any member of staff of a government agency as an authorised officer for the purposes of this Act.
(2)  The authority of an authorised officer may be limited by the relevant instrument of appointment to the functions specified in the instrument of appointment.
(3)  An authorised officer cannot exercise the functions of an authorised officer under this Act unless the officer is in possession of an identification card issued on behalf of the Minister.
(4)  In the course of exercising the functions of an authorised officer under this Act, the officer must, if requested to do so by any person who is subject to the exercise of the function, produce the officer’s identification card to the person.
Division 2 Investigation
35   Powers of entry and inspection
(1)  An authorised officer may enter land for the purpose of determining whether a person is contravening or has contravened this Act, but only if:
(a)  the landholder consents, or
(b)  the Director-General has authorised the entry onto the land concerned.
(2)  An authorised officer may, for the purposes of determining whether a person is contravening or has contravened this Act:
(a)  conduct such investigations, make such inquiries, examinations and inspections, and take such samples and recordings (including photographs), as the officer considers necessary, and
(b)  require a landholder or other person to produce to the officer any records or documents that relate to any clearing of native vegetation on any land, and
(c)  require a landholder or other person to provide such reasonable assistance and facilities as may be requested by the officer to exercise the officer’s functions under this section.
(3)  A person may accompany an authorised officer and take all reasonable steps to assist an officer in the exercise of the officer’s functions under this section if the officer is of the opinion that the person is capable of providing assistance to the officer in the exercise of those functions.
(4)  An authorised officer is not entitled to enter any part of premises used only for residential purposes except with the consent of the landholder.
(5)  A person who, without reasonable excuse:
(a)  obstructs an authorised officer in the exercise of the officer’s functions under this section, or
(b)  fails or refuses to comply with a requirement made by an authorised officer under this section,
is guilty of an offence.
Maximum penalty: 100 penalty units.
(6)  In this section, obstruct includes delay, threaten or hinder.
Division 3 Director-General’s powers
36   Power to obtain information
(1)  In this section:
relevant information means information about a possible contravention of this Act.
(2)  The Director-General may, by notice in writing served on a person, require the person:
(a)  to give to an authorised officer, orally or in writing signed by the person (or, if the person is a corporation, by a competent officer) and within the time and in the manner specified in the notice, any relevant information of which the person has knowledge, or
(b)  to produce to an authorised officer, in accordance with the notice, any document containing relevant information.
(3)  An authorised officer may inspect a document produced in response to such a notice and may make copies of, or take extracts or notes from, the document.
(4)  A person must not, without reasonable excuse:
(a)  fail to comply with such a notice to the extent that the person is capable of complying with it, or
(b)  in purported compliance with such a notice, give information or an answer to a question, or produce a document, knowing that it is false or misleading in a material particular.
Maximum penalty: 100 penalty units.
(5)  A person is not excused from giving information, answering questions or producing documents under this section on the ground that the information, answers or documents may tend to incriminate the person.
(6)  Any information or document obtained from a natural person under this section is not admissible against the person in criminal proceedings other than proceedings for an offence under this section.
Note.
 Section 34 (4) requires an authorised officer exercising functions under this section to produce his or her identification card if requested to do so.
37   Director-General may make “stop work” order
(1)  If the Director-General is of the opinion that a person is contravening, or is about to contravene, this Act, the Director-General may, by notice in writing given to the person, order the person not to carry out the activity concerned.
(2)  The order:
(a)  takes effect immediately (or from a later date specified in the notice), and
(b)  is subject to such conditions as the Director-General may specify in the notice.
(3)  The Director-General may vary or revoke the order or the conditions of the order by further notice in writing given to the person subject to the order.
(4)  An order under this section remains in force until whichever of the following happens first:
(a)  the order is revoked by the Director-General,
(b)  the period (if any) for which the order is expressed in the notice to be in force ends,
(c)  the period of 2 years from the day on which the order took effect ends.
(5)  A person who does not comply with an order in force under this section is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or
(b)  in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.
Note.
 An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
38   Directions for remedial work
(1)  If the Director-General is satisfied:
(a)  that any native vegetation has been cleared in contravention of this Act, or
(b)  that the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,
the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.
(2)  Any one or more of the following types of work may be directed to be carried out by a notice under this section:
(a)  work to repair any damage caused by the clearing,
(b)  work to rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate),
(c)  work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.
(3)  A direction under this section may be varied or revoked by a further notice.
(4)  A person who does not comply with a direction under this section is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—2,000 penalty units and 200 penalty units for each day the offence continues, or
(b)  in any other case—1,000 penalty units and 100 penalty units for each day the offence continues.
Note.
 An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.
(5)  If a person fails to comply with a direction under this section, the Director-General may authorise any other person to enter the land and carry out the specified work.
(6)  The Director-General may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown.
(7)  In this section:
lake includes a lagoon, wetland, or other body of still water, whether permanent or temporary.
river includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream.
39   Appeals under this Division
(1)  A person aggrieved by a decision of the Director-General to make an order, or to give a direction, under this Division may appeal against the decision to the Land and Environment Court within 30 days of the service of the notice of the order or direction.
(2)  The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the decision appealed against.
40   Prior notification not required
The Director-General is not required, before making an order or giving a direction under this Division, to notify any person who may be affected by the order or direction.
Division 4 Civil and criminal proceedings
41   Restraint of contraventions of this Act
(1)  In this section, contravention includes threatened or apprehended contravention.
(2)  Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a contravention of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that contravention.
(3)  Proceedings under this section may be brought by a person on the person’s own behalf or on behalf of that person and on behalf of other persons (with their consent), or a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(4)  Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(5)  If the Court is satisfied that a contravention has occurred, or that a contravention will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the contravention.
42   Proceedings for offences
(1)  Proceedings for an offence under this Act or the regulations are to be dealt with summarily before:
(a)  the Local Court, or
(b)  the Land and Environment Court.
(2)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence under this Act or the regulations is the maximum monetary penalty provided by this Act in respect of that offence, or 100 penalty units (including any daily penalty), whichever is the lesser.
(3)  Proceedings for an offence under this Act or the regulations may be commenced within, but not later than, 2 years after the date on which the offence is alleged to have been committed.
(4)  However, proceedings for any such offence may also be commenced within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of an authorised officer.
(5)  If subsection (4) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of an authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of an authorised officer is the date specified in the information or application, unless the contrary is established.
(6)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.
43   Penalty notices
(1)  An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.
(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section.
(3)  A penalty notice may be served personally or by post.
(4)  If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.
(5)  Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(6)  The regulations may:
(a)  prescribe the amount of penalty payable for the offence if dealt with under this section, and
(b)  prescribe different amounts of penalties for different offences or classes of offences.
(7)  The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.
(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
44   Evidentiary provision
In any criminal or civil proceedings, the landholder of any land on which native vegetation is cleared is taken to have carried out the clearing unless it is established that:
(a)  the clearing was carried out by another person, and
(b)  the landholder did not cause or permit the other person to carry out the clearing.
This section does not prevent proceedings being taken against the person who actually carried out the clearing.
45   Liability of directors etc for offences by corporation—offences attracting executive liability
(1)  For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation:
(a)  section 12,
(b)  section 37 (5),
(c)  section 38 (4).
(2)  A person commits an offence against this section if:
(a)  a corporation commits an executive liability offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and
(c)  the person:
(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and
(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.
Maximum penalty: The maximum penalty for the executive liability offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.
(5)  This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.
(7)  In this section:
director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.
reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a)  action towards:
(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c)  action towards ensuring that:
(i)  the plant, equipment and other resources, and
(ii)  the structures, work systems and other processes,
relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.
45A   Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 45.
(2)  A person commits an offence against this section if:
(a)  a corporation commits a corporate offence, and
(b)  the person is:
(i)  a director of the corporation, or
(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and
(c)  the person:
(i)  aids, abets, counsels or procures the commission of the corporate offence, or
(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or
(iii)  conspires with others to effect the commission of the corporate offence, or
(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.
Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3)  The prosecution bears the legal burden of proving the elements of the offence against this section.
(4)  The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.
(5)  This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.
(6)  This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.