Botanic Gardens and Parks Authority Act 1998 (Western Australia)

This Act creates a statutory authority to manage King’s Park and other land designated for its care, control and management, sets the Authority’s functions and powers, establishes governance and staff arrangements, prescribes a management‑planning and public consultation regime, creates enforcement powers for designated officers, establishes a separate Foundation for fundraising, and sets the financial framework that governs revenue, borrowing and reporting.

Mechanically the core changes are these.

Establishment of a corporate body called the Botanic Gardens and Parks Authority, which is an agent of the Crown (s 4, s 5). The board is the governing body and members are appointed by the Minister (s 6; Schedule 1).
Detailed functional statement: the Authority has care, control and management of designated land and is required to manage it for recreation and tourism, conservation of biological diversity and landscape, collections and research, cultural heritage, horticulture promotion and related research (s 9(1)-(2)).
Broad operational powers to acquire, dispose of and lease land (subject to Ministerial approval in many cases), erect structures, undertake works, sell plant material, publish, charge fees and enter business arrangements (s 10). Some powers require Ministerial approval, including land acquisition or disposal, long leases, permanent structures and significant works (s 11).
A legally prescribed management plan regime that binds the Authority and requires public notice, public submissions and Ministerial approval of management plans and amendments (Part 4, ss 15-22).
Staffing model: a chief executive officer is appointed under the Public Sector Management Act 1994 and has day‑to‑day control of staff; the Authority may engage staff on terms determined by the CEO while some public sector rules do not apply (ss 23-25).

CrestWestern Australia

Botanic Gardens and Parks Authority Act 1998

Western Australia

Botanic Gardens and Parks Authority Act 1998

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2

Part 2 — Botanic Gardens and Parks Authority

Authority established 4
Agent of Crown 4
Board of management 4
Constitution and proceedings of board 4
Remuneration of members 5

Part 3 — Functions and powers

Functions 6
Powers 7
Requirements for Ministerial approval 9
Delegation 10
Minister may give directions 10
Minister to have access to information 11

Part 4 — Management plans

Authority to comply with management plans 12
First management plans 12
Review and revision of management plans 13
Content of management plans 13
Plans to be publicly notified 14
Public submissions 15
Approval by Minister 15
Notice of approval 16

Part 5 — Staff

Chief executive officer 17
Other staff 17
Use of other government staff etc. 17
Park management officers 18
Identity cards 18
Enforcement powers of park management officers 19
Requirement to leave designated land 20
Obstruction of park management officers 21

Part 6 — Financial provisions

Funds of Authority 22
Botanic Gardens and Parks Authority Account 22
Borrowing from Treasurer 23
Other borrowing 23
Guarantee by Treasurer 23
Effect of guarantee 24
Application of Financial Management Act 2006 and Auditor General Act 2006 24

Part 7 — Botanic Gardens and Parks Foundation

Botanic Gardens and Parks Foundation established 25
Governing council 25
Functions 25
Powers 25
Financial arrangements 25
Rules 26

Part 8 — General

44A. Chief Health Officer responsible for public health matters 28

Authority to be consulted 29
Protection from liability 29
Execution of documents by Authority 29
Confidentiality 30
Liability for acts of children 31
Onus of proof in vehicle offences may be shifted 31
Evidentiary provision — speed measuring equipment 32
Infringement notices 33
Notice placing onus on vehicle owner 35

53A. Local laws do not apply to King’s Park 36

Regulations 36
Review of Act 37
Savings and transitional provisions 37

Schedule 1 — Constitution and proceedings of board

Division 1 — General provisions

Term of office 38
Resignation, removal etc. 38
Leave of absence 38
Chairperson unable to act 39
Member unable to act 39
Saving 39
Calling of meetings 39
Presiding officer 39
Quorum 40
Voting 40
Minutes 40
Resolution without meeting 40
Telephone or video meetings 40
Committees 40
Board to determine own procedures 41

Division 2 — Disclosure of interests etc.

Disclosure of interests 41
Voting by interested members 41
Clause 17 may be declared inapplicable 42
Quorum where clause 17 applies 42
Minister may declare clauses 17 and 19 inapplicable 42

Schedule 2 — Savings and transitional provisions

Terms used 43
Dissolution of Board 43
Devolution of assets, liabilities etc. 44
Agreements and instruments 44
References to Board in written law 45
Chief executive officer 45
Staff 45
Rangers 46
Annual reports for part of a year 46
Existing leases not affected 46

Notes

Compilation table 47

Other notes 48

Defined terms

Western Australia

Botanic Gardens and Parks Authority Act 1998

An Act to make provision for —

• the establishment of an Authority to control and manage King’s Park and other land;

• the management policies to be followed by the Authority in relation to that land;

• the establishment of a Foundation with fund‑raising and other functions; and

• the dissolution of the King’s Park Board,

to consequentially amend certain Acts 1, and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Botanic Gardens and Parks Authority Act 1998.

2. Commencement

This Act comes into operation on such day as is fixed by proclamation.

3. Terms used

In this Act, unless the contrary intention appears —

Account means the account referred to in section 32(1);

Authority means the Botanic Gardens and Parks Authority established by section 4(1);

board means the board of management provided for by section 6 and in Division 2 of Schedule 1 includes a committee;

chairperson means the chairperson of the board;

chief executive officer means the person appointed as such for the purposes of section 23;

committee means a committee established under clause 14 of Schedule 1;

council means the council provided for in section 39;

designated land means —

(a) King’s Park; and

(b) land reserved under the Land Administration Act 1997 the care, control and management of which is placed with the Authority under that Act; and

Foundation means the Botanic Gardens and Parks Foundation established under section 38;

Foundation Account means the account referred to in section 42(1);

function, except in sections 9, 10, 40 and 41, includes power, duty and authority;

King’s Park means all of the land from time to time within Reserve No. 1720 (known as King’s Park) classified as of Class A;

member means a member of the board and includes a person appointed under clause 5 of Schedule 1 and a member of a committee;

member of staff means the chief executive officer or a person referred to in section 24(1) or 25;

owner, in relation to a vehicle, means —

(a) the person to whom a licence in respect of the vehicle has been granted under the Road Traffic (Vehicles) Act 2012; or

(b) if there is not such a person, the person who owns the vehicle or is entitled to its possession;

park management officer means —

(a) a person designated as such under section 26; or

(b) a police officer;

regulations means regulations made under section 53;

rules means rules made under section 43;

vehicle has the meaning given in the Road Traffic (Administration) Act 2008 section 4.

[Section 3 amended: No. 8 of 2012 s. 44.]

Part 2 — Botanic Gardens and Parks Authority

4. Authority established

(1) There is established a body called the Botanic Gardens and Parks Authority.

(2) The Authority is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Authority in its corporate name.

5. Agent of Crown

The Authority is an agent of the Crown and enjoys the status, immunities and privileges of the Crown.

6. Board of management

(1) The Authority is to have a board of management comprising —

(a) a chairperson; and

(b) a deputy chairperson; and

(2) The board is the governing body of the Authority and, in the name of the Authority, is to perform the functions of the Authority under this Act.

(3) The members of the board are to be appointed by the Minister.

(4) The Minister is to ensure that each person appointed to the board has expertise that, in the Minister’s opinion, is relevant to the functions of the Authority under this Act.

7. Constitution and proceedings of board

Schedule 1 has effect with respect to the board and its members.

8. Remuneration of members

A member is to be paid such remuneration and travelling and other allowances as are determined in his or her case by the Minister on the recommendation of the Public Sector Commissioner.

[Section 8 amended: No. 39 of 2010 s. 89.]

Part 3 — Functions and powers

9. Functions

(1) The Authority has the care, control and management of the designated land for the purposes set out in subsection (2).

(2) The care, control and management of the designated land is placed with the Authority for the purpose of enabling it —

(a) to provide, improve and promote recreational and tourism services and facilities on the designated land; and

(b) to conserve and enhance any native biological diversity of the designated land; and

(d) to conserve, develop, manage, display, and undertake research into, collections of Western Australian and other flora; and

(e) to enhance and promote the understanding and conservation of the biological diversity of the designated land and of biological diversity generally; and

(f) to conserve, enhance and promote the Aboriginal, colonial and contemporary cultural heritage of the designated land; and

(g) to promote the use of flora for the purposes of horticulture, conservation and education; and

(h) to undertake and promote research and investigation into matters related to or connected with its functions under this subsection.

10. Powers

(1) The Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting subsection (1), the Authority may —

(a) subject to section 11, acquire land and dispose of land (other than designated land); and

(b) subject to section 11, grant a lease or licence that is consistent with its functions, on such terms and conditions as it thinks fit; and

(d) subject to section 11, undertake road works and other works on designated land necessary for the management of that land; and

(e) give or take botanical specimens by way of loan or exchange with scientific or educational institutions; and

(f) produce and publish information on matters related to its functions; and

(g) in connection with its function under section 9(2)(g), sell or dispose of plants, parts of plants, seeds and fungi or similar organisms; and

(h) apply for, obtain and hold (whether alone or jointly with any other person) any patent, patent rights, design rights, copyright or similar rights; and

(i) require payment of rent, fees or other charges for the use of any of its facilities (whether permanent or temporary) or for the use of any part of designated land; and

(j) require payment of fees —

(i) for entry to designated land (other than King’s Park or designated land that is prescribed for the purposes of this subparagraph); and

(ii) for admission to a particular display or event being conducted on any part of designated land for purposes consistent with its functions, or to any land or facility being used in connection with such a display or event;

and

(k) fix the amount of rent, fees or charges referred to in paragraphs (i) and (j) with power to waive, reduce or refund the amount payable in particular cases; and

(l) enter into a contract or arrangement with a person or body (including a local government or a department of the Public Service, or other agency or instrumentality, of the State or the Commonwealth) —

(i) for the performance by that person or body of any work or the supply of equipment or services; or

(ii) to provide consultancy or advisory services to that person or body; or

(iii) for the commercial exploitation of the rights referred to in paragraph (h), whether by assignment, licensing or otherwise;

and

(m) on terms and conditions approved by the Minister and the Treasurer, participate in any business arrangement that is consistent with its functions; and

(n) act in conjunction with a person, a firm, a local government or a department of the Public Service, or other agency or instrumentality, of the State or the Commonwealth.

(3) For the purposes of subsection (2)(m) the Minister and the Treasurer may approve terms and conditions in respect of a specific business arrangement or class of business arrangement or in respect of business arrangements generally.

(4) In this section —

business arrangement means a proprietary limited company, partnership, trust, joint venture, arrangement for sharing profits or arrangement for sponsorship;

participate includes form, promote, establish, enter into, manage, dissolve, wind up, and do anything incidental to the doing of any of those things.

11. Requirements for Ministerial approval

(1) The Authority must obtain the approval of the Minister before exercising —

(a) the power conferred by section 10(2)(a); or

(b) the power conferred by section 10(2)(b), if the proposed lease or licence is to be granted for a term exceeding a period of 5 years; or

(c) the power conferred by section 10(2)(c) to erect a permanent structure, if the cost of the proposed structure exceeds, or is likely to exceed, the relevant amount; or

(d) the power conferred by section 10(2)(d), if the cost of the proposed works exceeds, or is likely to exceed, the relevant amount.

(2) The Minister is not to give approval for the purposes of subsection (1)(b), (c) or (d) unless the proposed exercise of power conforms to the relevant management plan applicable under Part 4.

(3) For the purposes of subsection (1)(b), any additional term obtainable at the option of the lessee or licensee is to be included when calculating the length of the term of a proposed lease or licence.

(4) In subsection (1) —

relevant amount means $100 000 or such other amount as is prescribed.

12. Delegation

(1) The Authority may, by instrument in writing, delegate the performance of any of its functions, except this power of delegation.

(2) A delegation under subsection (1) may be made —

(a) to a member or members of the board; or

(b) to a member or members of staff; or

(3) A function performed by a delegate is to be taken to be performed by the Authority.

(4) A delegate performing a function under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section is to be read as limiting the ability of the Authority to act through its staff and agents in the normal course of business.

13. Minister may give directions

(1) The Minister may give directions in writing to the Authority with respect to the performance of its functions, either generally or in relation to a particular matter, and the Authority is to give effect to any such direction.

(2) The text of a direction given under subsection (1) is to be included in the annual report submitted by the accountable authority of the Authority under Part 5 of the Financial Management Act 2006.

[Section 13 amended: No. 77 of 2006 Sch. 1 cl. 16(1).]

14. Minister to have access to information

(1) The Minister is entitled —

(a) to have information in the possession of the Authority; and

(b) where the information is in or on a document, to have, and make and retain copies of, that document.

(2) For the purposes of subsection (1) the Minister may —

(a) request the Authority to furnish information to the Minister;

(b) request the Authority to give the Minister access to information;

(c) for the purposes of paragraph (b) make use of the staff of the Authority to obtain the information and furnish it to the Minister.

(3) The Authority is to comply with a request under subsection (2) and make its staff and facilities available to the Minister for the purposes of paragraph (c) of that subsection.

(4) In this section —

document includes any tape, disc or other device or medium on which information is recorded or stored mechanically, photographically, electronically or otherwise;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Authority.

Part 4 — Management plans

15. Authority to comply with management plans

(1) The Authority must control and manage the designated land in accordance with the management plans for the time being applicable to that land.

(2) A copy of each of the management plans applicable to the designated land is to be kept at the office of the Authority and is to be made available for inspection by the public during office hours free of charge.

16. First management plans

(1) On the commencement of this Act the plans known as the King’s Park Bushland Management Plan 1995‑2005 and the King’s Park and Botanic Garden Framework Plan for the Developed Areas 1996‑2006 are together to be regarded as the management plan applicable to King’s Park.

(2) The Authority must, within 2 years after land becomes designated land by operation of paragraph (b) or (c) of the definition of designated land in section 3, prepare and submit to the Minister, for his or her consideration, a management plan for the land.

(3) A management plan referred to in subsection (1) or (2) (the first management plan) has effect, subject to this section, until a revised management plan is approved under this Part in respect of the designated land to which the first management plan applies.

(4) The Minister may, by notice in writing given to the Authority, modify or add to any provision in a management plan referred to in subsection (1) or (2), and may vary or revoke a notice so given.

(5) Section 15(1) has effect subject to any notice given by the Minister under subsection (4) for the time being in force.

(6) A copy of a notice given by the Minister under subsection (4) is to be attached to the copy of the relevant management plan kept by the Authority under section 15(2).

17. Review and revision of management plans

(1) The Authority must —

(a) in the case of the management plan referred to in section 16(1), not later than 5 years after the commencement of this Act; and

(b) in the case of a management plan referred to in section 16(2), not later than 5 years after the preparation of the plan,

review the plan and, if it considers that the circumstances so require, prepare amendments to the plan or a revised management plan for the designated land to which the plan applied.

(2) The Authority must take action under subsection (1) in respect of every management plan for the time being in force not later than 5 years after the Minister has, under section 21, approved the plan or amendments to it or its continuation in force without amendment.

(3) If, on a review under this section, the Authority considers that a management plan does not require amendment or revision it may determine that the existing management plan is to continue in force without amendment.

(4) In performing its functions under this section, the Authority is to have the objective of promoting its functions under section 9(2).

18. Content of management plans

(1) A management plan prepared under this Part must contain —

(a) a statement of the policies or guidelines proposed to be followed; and

(b) a summary of the operations proposed to be undertaken,

in respect of the designated land to which the management plan applies during the period of 5 years from the time when it is approved or, in the case of a management plan referred to in section 16(2), prepared.

(2) A management plan must state the date on which it will expire but despite anything in this section or in the plan, a plan that would otherwise expire remains in force until a further plan is approved.

(3) A management plan must not disclose any information or matter communicated in confidence for the purposes of this Act or which would or might reasonably be expected to cause damage to the interests of the person from whom the information was received.

19. Plans to be publicly notified

(1) Public notification that —

(a) a revised management plan or amendments to the existing management plan have been prepared; or

(b) the existing management plan is proposed to be continued in force without amendment,

must be given in accordance with subsection (2).

(2) The revised management plan or amendments, or the proposal to continue the existing management plan in force without amendment, must be publicly notified by the Authority by the publication —

(a) in the Gazette; and

(b) in 2 issues of a daily newspaper circulating throughout the State; and

of a notice —

(d) specifying the places at which —

(i) a copy of the revised management plan or the amendments may be inspected; and

(ii) copies of the revised management plan or the amendments may be obtained;

and

(e) stating the effect of section 20 and specifying the period referred to in that section.

20. Public submissions

Written submissions on the revised management plan or amendments or the proposal to continue the existing management plan in force without amendment may be made by any person —

(a) within a period determined by the Authority, being a period not less than 2 months after the day on which the notice is published in the Gazette; and

(b) by delivering or posting them, so that they are received within that period at the offices of the Authority.

21. Approval by Minister

(1) Subject to this Part, the Authority must submit to the Minister for approval —

(a) the revised management plan or amendments, modified as it thinks fit to give effect to submissions made under section 20; or

(b) the proposal to continue the existing management plan in force without amendment.

(2) The Authority may, in order to give effect to submissions under section 20, submit to the Minister for approval proposed amendments to the existing management plan instead of the proposal that the plan be continued in force without amendment.

(3) The Minister may —

(a) approve the proposed plan or the proposed amendments or approve the same with such modifications as the Minister thinks fit; or

(b) approve the proposal to continue the existing management plan in force without amendment or instead make amendments to that plan.

22. Notice of approval

(1) Notice that the Minister has —

(a) approved a revised management plan; or

(b) approved or made amendments to the existing management plan; or

must be published by the Minister in the Gazette, together with a note showing —

(d) whether any modifications or amendments were made by the Minister under section 21; and

(e) where a copy of the management plan or the amendments may be inspected or obtained.

(2) A revised management plan or amendments to the existing management plan comes into operation on the day of publication in the Gazette of a notice under subsection (1) or on such later day as is specified in the management plan or in the amendments.

Part 5 — Staff

23. Chief executive officer

(1) A chief executive officer of the Authority is to be appointed under Part 3 of the Public Sector Management Act 1994.

(2) Subject to the control of the board, the chief executive officer is to administer the day to day operations of the Authority and engage its staff.

24. Other staff

(1) The chief executive officer may engage persons as staff of the Authority.

(2) Persons referred to in subsection (1) are to be employed, subject to any relevant industrial award, order or agreement, on such terms and conditions as the chief executive officer determines.

(3) Nothing in subsection (2) affects the operation of Part VID of the Industrial Relations Act 1979.

(4) Part 3, Division 3 of the Public Sector Management Act 1994 does not apply to the Authority but this section does not affect the power of the chief executive officer to engage a person under a contract for services or appoint a person on a casual employment basis under section 100 of that Act.

[Section 24 amended: No. 20 of 2002 s. 27; amended in Gazette 15 Aug 2003 p. 3692.]

25. Use of other government staff etc.

(1) The Authority may by arrangement with the relevant employer make use, either full‑time or part‑time, of the services of any officer or employee —

(a) in the Public Service; or

(b) in a State agency or instrumentality; or

(2) The Authority may by arrangement with —

(a) a department of the Public Service; or

(b) a State agency or instrumentality,

make use of any facilities of the department, agency or instrumentality.

(3) An arrangement under subsection (1) or (2) is to be made on such terms as are agreed to by the parties.

26. Park management officers

(1) The Authority may, by instrument in writing, designate a member of staff or other person to be a park management officer.

(2) The Authority may revoke a designation under subsection (1) at any time.

(3) A police officer is ex officio a park management officer.

27. Identity cards

(1) The Authority is to issue to a park management officer an identity card stating that he or she has been designated as a park management officer.

(2) An identity card is to be in a form approved by the Authority.

(3) A park management officer must produce the identity card whenever requested to do so by any person in respect of whom the officer has exercised, or is about to exercise, a power under section 28 or 51.

(4) Production of an identity card is evidence in any court of the designation of the park management officer to whom the identity card relates.

(5) A person who ceases to be a park management officer must, as soon as practicable, return his or her identity card to the chief executive officer or other person authorised to receive it.

Penalty: $1 000.

(6) This section does not apply to a park management officer who is a police officer.

28. Enforcement powers of park management officers

(1) This section applies to an offence against section 30 or the regulations.

(2) A park management officer who finds a person committing an offence to which this section applies or who on reasonable grounds suspects that such an offence has been committed or is about to be committed by a person may —

(a) require the person to give to the officer the person’s name and address; and

(b) stop, detain and search any vehicle if a person in or on the vehicle is, or is suspected by the officer on reasonable grounds of being, the offender; and

(d) enter and search any hut, tent or other structure that is not a permanent residence.

(3) A person must, when required to do so under subsection (2)(a), give the person’s full and correct name and address.

(4) If a person does not under subsection (3) give the person’s full and correct name and address to a park management officer —

(a) the person obstructs the park management officer in the performance of the officer’s functions and section 30 applies accordingly; and

(b) the park management officer may detain the person until the person can be delivered to a police officer to be dealt with according to law.

(5) Before exercising a power conferred by subsection (2)(b), (c) or (d) a park management officer must take all reasonable steps to inform the person, or the owner or person in charge of the vehicle, animal, hut, tent, structure or thing, as the case requires, of —

(a) his or her intention to exercise the power; and

(b) his or her reasons for believing that the proposed exercise of the power is justified.

(6) Nothing in this section derogates from the powers of a park management officer who is a police officer.

29. Requirement to leave designated land

(1) A park management officer may require a person to leave designated land if the park management officer —

(a) finds the person committing an offence against the regulations; or

(b) believes on reasonable grounds that an emergency situation exists on the land.

(2) A person must not remain on designated land after being required to leave the land under subsection (1).

Penalty: $2 000.

(3) If a person contravenes subsection (2), a police officer may remove, or make arrangements for the removal of, the person from designated land and if necessary detain the person for the purpose of effecting his or her removal.

(4) A park management officer who is not a police officer may detain a person who has contravened subsection (2) until the person can be delivered to a police officer for removal under subsection (3).

(5) In this section —

emergency situation means a fire or other occurrence that endangers, or is likely to endanger, public safety.

30. Obstruction of park management officers

A person must not resist, delay or in any way obstruct a park management officer in the performance of his or her functions.

Penalty: $5 000.

[Section 30 amended: No. 50 of 2003 s. 39(2).]

Part 6 — Financial provisions

31. Funds of Authority

(1) The funds available for the purpose of enabling the Authority to perform its functions consist of —

(a) moneys from time to time appropriated by Parliament; and

(b) moneys received by the Authority in the performance of its functions; and

(d) moneys borrowed by the Authority under section 33 or 34; and

(e) moneys transferred to the Authority under section 42(3); and

(f) modified penalties paid under section 51; and

(g) other moneys lawfully received by, made available to or payable to the Authority.

(2) Where any gift, including a gift by will, has been made to the Authority upon lawful conditions that are accepted by the Authority, it is to apply the gift in accordance with those conditions.

32. Botanic Gardens and Parks Authority Account

(1) An account called the Botanic Gardens and Parks Authority Account is to be established —

(a) as an agency special purpose account under section 16 of the Financial Management Act 2006; or

(b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act,

to which the funds referred to in section 31 are to be credited.

(2) The Account is to be charged with —

(a) interest on and repayment of moneys borrowed by the Authority under section 33 or 34; and

(b) all other expenditure lawfully incurred by the Authority in the performance of its functions.

[Section 32 amended: No. 77 of 2006 Sch. 1 cl. 16(2).]

33. Borrowing from Treasurer

(1) The Authority may borrow from the Treasurer such amounts as the Treasurer approves on such terms and conditions relating to repayment and payment of interest as the Treasurer imposes.

(2) By virtue of this subsection the Account and the assets of the Authority are charged with the due performance by the Authority of its obligations in respect of a loan under subsection (1).

34. Other borrowing

(1) In addition to its powers under section 33, the Authority may with the prior written approval of the Treasurer and on such terms and conditions as the Treasurer approves, borrow moneys for the purpose of performing its functions.

(2) Any moneys borrowed by the Authority under subsection (1) may be raised —

(a) as one loan or as several loans; and

(b) in such manner as the Treasurer approves.

(3) The total amount of the moneys so borrowed in any one financial year is not to exceed such amount as the Treasurer approves.

35. Guarantee by Treasurer

(1) The Treasurer may, in the name and on behalf of the Crown in right of the State, guarantee the payment of any moneys payable by the Authority in respect of moneys borrowed by it under section 34.

(2) A guarantee is to be in such form and contain such terms and conditions as the Treasurer determines.

(3) Before a guarantee is given, the Authority is to —

(a) give to the Treasurer such security as the Treasurer requires; and

(b) execute all instruments that are necessary for the purpose.

36. Effect of guarantee

(1) The due payment of moneys payable by the Treasurer under a guarantee given under section 35 is guaranteed by the State.

(2) Any such payment is to be made by the Treasurer and charged to the Consolidated Account, and this subsection appropriates that Account accordingly.

(3) The Treasurer is to cause to be credited to the Consolidated Account any amounts received or recovered from the Authority or otherwise in respect of any payment made by the Treasurer under a guarantee given under section 35.

[Section 36 amended: No. 77 of 2006 s. 4 and 5(1).]

37. Application of Financial Management Act 2006 and Auditor General Act 2006

The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Authority and its operations.

[Section 37 amended: No. 77 of 2006 Sch. 1 cl. 16(3).]

Part 7 — Botanic Gardens and Parks Foundation

38. Botanic Gardens and Parks Foundation established

(1) There is established a body called the Botanic Gardens and Parks Foundation.

(2) The Foundation is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Foundation in its corporate name.

39. Governing council

The Foundation is to have a council which, subject to this Act, is to be the governing body of the Foundation.

40. Functions

The functions of the Foundation are —

(a) to attract and retain continuing public interest and financial support for the Authority in the performance of its functions under section 9(2); and

(b) to encourage donations to facilitate the performance by the Authority of its functions under section 9(2).

41. Powers

The Foundation has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

42. Financial arrangements

(1) An account called the Botanic Gardens and Parks Foundation Account is to be established —

(a) as an agency special purpose account under section 16 of the Financial Management Act 2006; or

(b) with the approval of the Treasurer, at a bank as defined in section 3 of that Act,

to which the funds received by the Foundation are to be credited.

(2) The Foundation Account is to be charged with all expenditure lawfully incurred by the Foundation in the performance of its functions.

(3) Moneys standing to the credit of the Foundation Account —

(a) are subject to the direction and control of the Authority; and

(b) may be transferred to the Authority for the purposes of carrying this Act into effect or otherwise applied for the purposes of the Authority or the Foundation.

(4) The operation of the Foundation Account is to be regarded as —

(a) a service under the control of the Authority for the purposes of section 52 of the Financial Management Act 2006; and

(b) part of the operations of the Authority for the purposes of Part 5 of that Act.

[Section 42 amended: No. 77 of 2006 Sch. 1 cl. 16(4)‑(6).]

43. Rules

(1) The Minister may, on the recommendation of the Authority, make rules that are necessary or convenient for giving effect to this Part.

(2) Without limiting subsection (1), the rules may —

(a) provide for the appointment, constitution, functions and proceedings of the council, including power to employ persons, appoint agents, obtain professional or other services and do all things necessary or convenient to be done for or in connection with the performance by the Foundation of its functions; and

(b) provide for membership of the Foundation, including membership of different categories having different privileges; and

(d) provide for the appointment of one or more patrons of the Foundation; and

(e) provide for Friends of the Foundation and for the establishment of a register of such persons; and

(f) provide for the manner of execution of documents authorised to be executed by resolution of the council; and

(g) empower the council, with the approval of the Authority, to make by‑laws with respect to the operations and proceedings of the Foundation, the council, committees of the council and persons employed by the Foundation.

Part 8 — General

44A. Chief Health Officer responsible for public health matters

(1) In this section —

Chief Health Officer has the meaning given in the Public Health Act 2016 section 4(1);

public health has the meaning given in the Public Health Act 2016 section 4(1).

(2) For the purposes of protecting, promoting and improving public health in relation to any designated land, the Chief Health Officer has all the powers and authority of a local government under the Local Government Act 1995 as if —

(a) the designated land were a district for the purposes of that Act; and

(b) the Chief Health Officer were the local government for that district.

(3) The power and authority conferred on the Chief Health Officer by subsection (2) includes the power to make and enforce local laws under the Local Government Act 1995.

(4) However —

(a) nothing in the Local Government Act 1995 Part 3 Division 2 Subdivision 2 (other than sections 3.12(5) and (8), 3.14(1) and 3.15) applies to or in respect of the making of local laws by the Chief Health Officer; and

(b) before making local laws, the Chief Health Officer must consult with the Authority, and consider any advice provided by the Authority.

(5) If there is a conflict or inconsistency between a local law made by the Chief Health Officer under subsection (2) and a local law made by a local government under the Local Government Act 1995 or any other Act, the local law made by the Chief Health Officer prevails to the extent of the conflict or inconsistency.

[Section 44A inserted: No. 2 of 2016 s. 28; amended: No. 19 of 2016 s. 112 and 113.]

44. Authority to be consulted

Before a person or a body acting under a written law carries out any work affecting designated land, that person or body must consult with the Authority on the proposal and have regard to any views that the Authority may express.

45. Protection from liability

(1) An action in tort does not lie against a person, other than the Authority, for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act.

(2) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act may have been capable of being done whether or not this Act had been enacted.

(3) This section does not relieve the Authority or the Crown of any liability that it might have for the doing of anything by a person against whom this section provides that an action does not lie.

(4) In this section, a reference to the doing of anything includes a reference to the omission to do anything.

46. Execution of documents by Authority

(1) The Authority is to have a common seal.

(2) A document is duly executed by the Authority, if —

(a) the common seal of the Authority is affixed to it in accordance with subsections (3) and (4); or

(b) it is signed on behalf of the Authority by a person or persons authorised to do so under subsection (5).

(3) The common seal of the Authority is not to be affixed to any document except as authorised by the board.

(4) The common seal of the Authority is to be affixed to a document in the presence of 2 members of the board, and each of them is to sign the document to attest that the common seal was so affixed.

(5) The Authority may, by writing under its seal, authorise a member or members of the board or a member or members of staff to sign documents on behalf of the Authority, either generally or subject to such conditions or restrictions as are specified in the authorisation.

(6) A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7) When a document is produced bearing a seal purporting to be the common seal of the Authority, it is to be presumed that the seal is the common seal of the Authority until the contrary is shown.

47. Confidentiality

A person who is or has been a member of the board or of a committee or a member of staff must not, directly or indirectly, record, disclose or make use of any information obtained in the course of duty except —

(a) for the purpose of performing functions under this Act; or

(b) as required or allowed by this Act or under another written law; or

(d) in prescribed circumstances.

Penalty: $10 000 and imprisonment for 12 months.

48. Liability for acts of children

(1) Where loss is suffered by the Authority as a result of any damage to, or destruction of, any property owned by or under the control and management of the Authority by the intentional or negligent act or omission of a child, the Authority may recover the amount of that loss from a responsible adult by action in a court of competent jurisdiction unless the responsible adult shows that he or she did not contribute to the act or omission of the child by neglecting to exercise due care and control of the child.

(2) Subsection (1) is in addition to section 58 of the Young Offenders Act 1994.

(3) In subsection (1) —

child means a person who has not reached the age of 18 years;

responsible adult, in relation to a child, has the same meaning as it has in section 58 of the Young Offenders Act 1994 in relation to a young person within the meaning of that Act.

49. Onus of proof in vehicle offences may be shifted

(1) In this section —

vehicle offence means an offence against the regulations of which the use, driving, parking, standing or leaving of a vehicle is an element.

(2) Where a vehicle offence is alleged to have been committed and the identity of the person committing the alleged offence is not known and cannot immediately be ascertained a park management officer may give the owner of the vehicle a notice under this section.

(3) The notice is to be in the prescribed form and is to contain particulars of the alleged offence and require the owner to identify the person who was the driver or person in charge of the vehicle at the time when the offence is alleged to have been committed.

(4) The notice may be addressed to the owner of the vehicle without naming, or stating the address of, the owner and may be given by —

(a) attaching it to the vehicle or leaving it in or on the vehicle at or about the time that the alleged offence is believed to have been committed; or

(b) giving it to the owner within 21 days after the alleged offence is believed to have been committed.

(5) The notice is to include a short statement of the effect of subsection (6).

(6) Unless, within 28 days after being served with the notice, the owner of the vehicle —

(a) informs the Authority or a member of staff authorised for the purposes of this paragraph as to the identity and address of the person who was the driver or person in charge of the vehicle at the time the offence is alleged to have been committed; or

(b) satisfies the Authority that the vehicle had been stolen or unlawfully taken, or was being unlawfully used, at the time the offence is alleged to have been committed,

the owner is, in the absence of proof to the contrary, deemed to have committed the offence.

50. Evidentiary provision — speed measuring equipment

(1) In this section —

speed measuring equipment has the meaning given in the Road Traffic (Administration) Act 2008 section 117(1).

(2) In proceedings for an offence against the regulations, evidence may be given of the use of speed measuring equipment by a park management officer in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment.

(3) Evidence given under subsection (2) is, in the absence of evidence to the contrary, proof of the speed at which the vehicle was moving at the time of the use of the speed measuring equipment in relation to that vehicle.

(4) In proceedings for an offence against the regulations, evidence by a park management officer that apparatus used by the officer was speed measuring equipment within the meaning of this section is, in the absence of evidence to the contrary, proof of that fact.

(5) Nothing in this section prevents or restricts the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person is or is not guilty of an offence against the regulations.

[Section 50 amended: No. 8 of 2012 s. 45; No. 15 of 2024 s. 66.]

51. Infringement notices

(1) In this section —

authorised person means a person appointed under subsection (10) to be an authorised person for the purposes of the subsection in which the term is used.

(2) A park management officer who has reason to believe that a person has committed a prescribed offence against the regulations may give an infringement notice to the alleged offender within 21 days after the alleged offence is believed to have been committed.

(3) An infringement notice is to be in the prescribed form and is to —

(a) contain a description of the alleged offence; and

(b) advise that if the alleged offender does not wish to be prosecuted for the alleged offence in a court, the amount of money specified in the notice as being the modified penalty for the offence may be paid to an authorised person within a period of 28 days after the giving of the notice; and

(c) inform the alleged offender as to who are authorised persons for the purposes of receiving payment of modified penalties.

(4) In an infringement notice the amount specified as being the modified penalty for the offence referred to in the notice is to be the amount that was the modified penalty prescribed by regulation at the time the alleged offence is believed to have been committed.

(5) An authorised person may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.

(6) Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn, the bringing of proceedings and the imposition of penalties are prevented to the same extent as they would be if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

(7) An authorised person may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(8) If an infringement notice is withdrawn after the modified penalty has been paid, the amount of the modified penalty is to be refunded.

(9) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

(10) The Authority may, in writing, appoint persons or classes of persons to be authorised persons for the purposes of subsection (3), (5) or (7), but a park management officer who gives an infringement notice is not eligible to be an authorised person for the purposes of any of those subsections in relation to that notice.

[Section 51 amended: No. 84 of 2004 s. 80.]

52. Notice placing onus on vehicle owner

(1) If an alleged offence is one for which a notice under section 49 can be given to the owner of a vehicle involved in the commission of the offence, that notice can be included in the same document as an infringement notice given to the owner for the alleged offence.

(2) For the purpose of giving the vehicle owner an infringement notice that is with a notice under section 49 —

(a) it is a sufficient ground for believing the owner to have committed the alleged offence that the person is the owner; and

(b) the infringement notice may be addressed and given as specified in section 49(4).

(3) Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, section 49(6) does not have effect to deem the owner to have committed the offence.

(4) The statement required by section 49(5) is to include a description of the effect of subsection (3) if an infringement notice is given with a notice under section 49.

53A. Local laws do not apply to King’s Park

(1) No local law applies to or in respect of King’s Park.

(2) This section does not apply to or in respect of any local law made by the Chief Health Officer under section 44A(2).

[Section 53A inserted: No. 2 of 2016 s. 29; amended: No. 19 of 2016 s. 113.]

53. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), the regulations may —

(a) provide for the care, control and management of the designated land; and

(b) provide for the conservation of the natural environment, landscape features, amenity and biological diversity of the designated land; and

(c) for the purpose of conserving the natural environment, landscape features, amenity and biological diversity of the designated land, prohibit, restrict or regulate the access of persons or animals to any part of the land; and

(d) prohibit, restrict or regulate the use, driving, parking, standing or leaving of vehicles on any part of the designated land; and

(e) without limiting section 10(2)(i), (j) and (k), provide for the imposition and payment of fees and charges; and

(f) provide that contravention of a regulation constitutes an offence and provide for a penalty not exceeding $2 000 in respect of any such offence.

54. Review of Act

(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 5 years from its commencement.

(2) In the course of that review the Minister is to consider and have regard to —

(a) the effectiveness of the operations of the Authority; and

(b) the need for the continuation of the functions of the Authority; and

(3) The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause it to be laid before each House of Parliament.

55. Savings and transitional provisions

Schedule 2 has effect with respect to savings and transitional provisions.

[56. Omitted under the Reprints Act 1984 s. 7(4)(e).]

Schedule 1 — Constitution and proceedings of board

[Section 7]

Division 1 — General provisions

Term of office

A member holds office for such term, not exceeding 3 years, as is specified in the instrument of his or her appointment, but may from time to time be re‑appointed.

Resignation, removal etc.

(1) The office of a member becomes vacant if he or she —

(a) resigns the office by written notice addressed to the Minister; or

(b) is an insolvent under administration as that expression is defined in the Corporations Act 2001 of the Commonwealth; or

(2) The Minister may remove a member from office if the Minister is satisfied that the member —

(a) has neglected his or her duty; or

(b) has misbehaved; or

(d) is suffering from mental or physical incapacity impairing the performance of his or her functions; or

(e) has been absent, without leave and reasonable excuse, from 3 consecutive meetings of the board of which the member has had notice.

[Clause 2 amended: No. 10 of 2001 s. 220.]

Leave of absence

The board may grant leave of absence to a member on such terms and conditions as it thinks fit.

Chairperson unable to act

If the chairperson is unable to act by reason of sickness, absence or other cause, or during any vacancy in that office, the deputy chairperson is to perform the functions of the chairperson.

Member unable to act

(1) If a member, other than the chairperson, is unable to act by reason of sickness, absence or other cause, the Minister may appoint another person to act temporarily in his or her place and, while so acting according to the tenor of his or her appointment, that other person is to be taken to be a member of the board.

(2) If the member who is deputy chairperson is performing the functions of the chairperson, the Minister may, under subclause (1), appoint another person to act in his or her place as a member.

(3) The appointment of a person under subclause (1) may be terminated at any time by the Minister.

Saving

No act or omission of a person acting in place of another under clause 4 or 5 is to be questioned on the ground that the occasion for his or her appointment or acting had not arisen or had ceased.

Calling of meetings

(1) Subject to subclause (2), meetings are to be held at the times and places that the board determines.

(2) A special meeting of the board may at any time be convened by the chairperson.

(3) The first meeting of the board is to be convened by the chairperson.

Presiding officer

(1) The chairperson is to preside at all meetings of the board at which he or she is present.

(2) If both the chairperson and the deputy chairperson are absent from a meeting the members present are to appoint one of their number to preside.

Quorum

A quorum for a meeting of the board is at least one half of the number of members.

Voting

(1) At any meeting of the board each member present has a deliberative vote.

(2) If the votes cast on a question are equally divided, the chairperson, deputy chairperson or other person presiding has a casting vote on the question.

Minutes

The board is to cause accurate minutes to be kept of the proceedings at its meetings.

Resolution without meeting

A resolution in writing signed by each member or assented to by each member by letter, telegram or facsimile is as effectual as if it had been passed at a meeting of the board.

Telephone or video meetings

A communication between a majority of the members by telephone, audio‑visual or other electronic means is a valid meeting of the board if each participating member is capable of communicating with every other participating member instantaneously at all times during the proceedings.

Committees

(1) The board may appoint committees to assist it in the performance of its functions, and may discharge or alter any committee so appointed.

(2) A committee may include persons who are not members of the board.

(3) Subject to the directions of the board and to the terms of any delegation under section 12, a committee may determine its own procedures.

Board to determine own procedures

Subject to this Act, the board is to determine its own procedures.

Division 2 — Disclosure of interests etc.

Disclosure of interests

(1) A member who has a material personal interest in a matter being considered or about to be considered by the board must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the board.

Penalty: $10 000.

(2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting.

Voting by interested members

A member who has a material personal interest in a matter that is being considered by the board —

(a) must not vote whether at a meeting or otherwise —

(i) on the matter; or

(ii) on a proposed resolution under clause 18 in respect of the matter, whether relating to that member or a different member;

and

(b) must not be present while —

(i) the matter; or

(ii) a proposed resolution of the kind referred to in paragraph (a)(ii),

is being considered at a meeting.

Clause 17 may be declared inapplicable

Clause 17 does not apply if the board has at any time passed a resolution that —

(a) specifies the member, the interest and the matter; and

(b) states that the members voting for the resolution are satisfied that the interest should not disqualify the member from considering or voting on the matter.

Quorum where clause 17 applies

(1) Despite clause 9, if a member of the board is disqualified under clause 17 in relation to a matter, a quorum is present during the consideration of the matter if at least 3 members are present who are entitled to vote on any motion that may be moved at the meeting in relation to the matter.

(2) The Minister may deal with a matter insofar as the board cannot deal with it because of subclause (1).

Minister may declare clauses 17 and 19 inapplicable

(1) The Minister may by writing declare that clause 17 or 19 or both of them do not apply in relation to a specified matter either generally or in voting on particular resolutions.

(2) The Minister must within 14 days after a declaration under subclause (1) is made cause a copy of the declaration to be laid before each House of Parliament.

Schedule 2 — Savings and transitional provisions

[Section 55]

Terms used

In this Schedule —

assets means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal and includes without limitation —

(a) choses in action; and

(b) goodwill; and

whether arising from, accruing under, created or evidenced by or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent or prospective;

Board means the King’s Park Board appointed by the Governor under subsection (1) of section 3 of the Parks and Reserves Act 1895 and constituted a body corporate under subsection (4) of that section;

commencement means the commencement of this Act;

liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, or whether owed alone or jointly or jointly and severally with any other person;

right means any right, power, privilege or immunity whether actual, contingent or prospective.

Dissolution of Board

(1) The Board is dissolved.

(2) Sections 36, 37 and 38 of the Interpretation Act 1984 apply, in relation to the dissolution of the Board, as if this Act were an Act repealing the Parks and Reserves Act 1895.

Devolution of assets, liabilities etc.

On the commencement —

(a) the assets and rights of the Board that were immediately before the commencement vested in the Board vest in the Authority by force of this clause; and

(b) the liabilities of the Board immediately before the commencement become, by force of this clause, the liabilities of the Authority; and

(c) any proceedings or remedy that immediately before the commencement might have been brought or continued by or available against or to the Board, may be brought or continued and are available, by or against or to the Authority; and

(d) any act, matter or thing done or omitted to be done before the commencement by, to or in respect of the Board (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the Authority; and

(e) anything lawfully commenced by the Board may, so far as it is not contrary to this Act, be carried on and completed by the Authority; and

(f) the Authority is to take delivery of all papers, documents, minutes, books of account and other records (however compiled, recorded or stored) relating to the operations of the Board.

Agreements and instruments

Any agreement or instrument subsisting immediately before the commencement —

(a) to which the Board was a party; or

(b) which contains a reference to the Board,

has effect after the commencement as if —

(d) any reference in the agreement or instrument to the Board were (unless the context otherwise requires) amended to be or include a reference to the Authority.

References to Board in written law

A reference to the Board in an enactment in force immediately before the commencement is to be read (unless the context otherwise requires) as if it had been amended to be a reference to the Authority.

Chief executive officer

(1) The person who immediately before the commencement occupied the office of chief executive officer of the Board is, after the commencement, the chief executive officer of the Authority until the expiry of the term of his or her appointment.

(2) Subject to the Public Sector Management Act 1994, the employment of the chief executive officer continues to be governed by the terms and conditions of service that applied before the commencement.

Staff

(1) A person who immediately before the commencement was appointed by the Board under section 7 of the Parks and Reserves Act 1895 is to be taken after the commencement to be engaged by the chief executive officer under section 24(1).

(2) Except as otherwise agreed by a person referred to in subclause (1), the operation of that subclause does not —

(a) affect the person’s pay, as that term is defined in regulation 3(1) of the Public Sector Management (Redeployment and Redundancy) Regulations 1994; or

(b) prejudice the person’s existing or accruing rights in respect of annual leave, long service leave, sick leave or parental leave; or

(d) interrupt continuity of service.

Rangers

A person who immediately before the commencement was a ranger appointed by the Board under section 7 of the Parks and Reserves Act 1895 is to be taken after the commencement to be designated as a park management officer under section 26.

Annual reports for part of a year

(1) The Board is to report as required by section 66 of the Financial Administration and Audit Act 1985 2, but limited to the period from 1 July preceding the commencement to the commencement, and Division 14 of Part II of that Act applies as if that period were a financial year of the Board.

(2) Despite clause 2, the Board continues in existence for the purposes of subclause (1) and is entitled to receive from the Authority and its staff such assistance as it may require for that purpose.

(3) For the purposes of Division 14 of Part II of the Financial Administration and Audit Act 1985 2, the period from the commencement to the succeeding 30 June is to be regarded as a full financial year of the Authority.

Existing leases not affected

Nothing in this Act is to be taken to affect —

(a) the length of the term of a lease in force on the commencement that was granted by the Board under a power conferred by section 5 of the Parks and Reserves Act 1895 or section 13(1) of the Reserves Act 1955; or

(b) the other terms and conditions of any such lease, including any provision as to renewal.

[Schedule 3 omitted under the Reprints Act 1984 s. 7(4)(e).]

dline

Notes

This is a compilation of the Botanic Gardens and Parks Authority Act 1998 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Botanic Gardens and Parks Authority Act 1998	53 of 1998	7 Dec 1998	s. 1 and 2: 7 Dec 1998; Act other than s. 1 and 2: 1 Jul 1999 (see s. 2 and Gazette 30 Jun 1999 p. 2879)
Corporations (Consequential Amendments) Act 2001 s. 220	10 of 2001	28 Jun 2001	15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285)
Labour Relations Reform Act 2002 s. 27	20 of 2002	8 Jul 2002	15 Sep 2002 (see s. 2(1) and Gazette 6 Sep 2002 p. 4487)
*Reprint 1: The Botanic Gardens and Parks Authority Act 1998* as at 13 Jun 2003** (includes amendments listed above)
Sentencing Legislation Amendment and Repeal Act 2003 s. 39	50 of 2003	9 Jul 2003	15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445)
Labour Relations Reform (Consequential Amendments) Regulations 2003 r. 21 published in Gazette 15 Aug 2003 p. 3685‑92			15 Sep 2003 (see r. 2)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 80	84 of 2004	16 Dec 2004	2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Financial Legislation Amendment and Repeal Act 2006 s. 4, 5(1) and Sch. 1 cl. 16	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
*Reprint 2: The Botanic Gardens and Parks Authority Act 1998* as at 6 Aug 2010** (includes amendments listed above)
Public Sector Reform Act 2010 s. 89	39 of 2010	1 Oct 2010	1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 3	8 of 2012	21 May 2012	27 Apr 2015 (see s. 2(d) and Gazette 17 Apr 2015 p. 1371)
City of Perth Act 2016 Pt. 4 Div. 2	2 of 2016	3 Mar 2016	4 Mar 2016 (see s. 2(b))
Public Health (Consequential Provisions) Act 2016 Pt. 3 Div. 6	19 of 2016	25 Jul 2016	24 Jan 2017 (see s. 2(1)(c) and Gazette 10 Jan 2017 p. 165)
*Reprint 3: The Botanic Gardens and Parks Authority Act 1998* as at 7 Dec 2018** (includes amendments listed above)
Road Traffic Legislation Amendment (Infringement Management Reform) Act 2024 Pt. 4 Div. 1	15 of 2024	14 May 2024	7 Oct 2024 (see s. 2(b) and SL 2024/200 cl. 2)

Other notes

1 The provision in this Act consequentially amending other Acts has been omitted under the Reprints Act 1984 s. 7(4)(e).

2 Under the Financial Management (Transitional Provisions) Act 2006 s. 19 a reference in a written law or other document or instrument to the Financial Administration and Audit Act 1985 may, where the context so requires, be read as if it had been amended to be a reference to the Financial Management Act 2006 or to the Auditor General Act 2006, or to both those Acts, as the case requires.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Account 3

assets Sch. 2 cl. 1

authorised person 51(1)

Authority 3

board 3

Board Sch. 2 cl. 1

business arrangement 10(4)

chairperson 3

chief executive officer 3

Chief Health Officer 44A(1)

child 48(3)

commencement Sch. 2 cl. 1

committee 3

council 3

designated land 3

document 14(4)

emergency situation 29(5)

first management plan 16(3)

Foundation 3

Foundation Account 2

function 3

information 14(4)

King’s Park 3

liability Sch. 2 cl. 1

member 3

member of staff 3

owner 3

park management officer 3

participate 10(4)

public health 44A(1)

regulations 3

relevant amount 11(4)

responsible adult 48(3)

right Sch. 2 cl. 1

rules 3

speed measuring equipment 50(1)

vehicle 3

vehicle offence 49(1)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Botanic Gardens and Parks Authority Act 1998

Western Australia

Botanic Gardens and Parks Authority Act 1998

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2

Part 2 — Botanic Gardens and Parks Authority

Authority established 4
Agent of Crown 4
Board of management 4
Constitution and proceedings of board 4
Remuneration of members 5

Part 3 — Functions and powers

Functions 6
Powers 7
Requirements for Ministerial approval 9
Delegation 10
Minister may give directions 10
Minister to have access to information 11

Part 4 — Management plans

Authority to comply with management plans 12
First management plans 12
Review and revision of management plans 13
Content of management plans 13
Plans to be publicly notified 14
Public submissions 15
Approval by Minister 15
Notice of approval 16

Part 5 — Staff

Chief executive officer 17
Other staff 17
Use of other government staff etc. 17
Park management officers 18
Identity cards 18
Enforcement powers of park management officers 19
Requirement to leave designated land 20
Obstruction of park management officers 21

Part 6 — Financial provisions

The Act organises the policy into a small set of recurring legal concepts that determine who decides and how the land is managed.

Designated land and King’s Park

Designated land is King’s Park, land reserved under the Land Administration Act 1997 where care, control and management is placed with the Authority, and any land prescribed by regulation (definition in s 3). King’s Park is Reserve No. 1720 classified as Class A (s 3). The Act’s substantive restrictions, powers and duties apply only to this defined class of land.

Authority, board and governance

The Authority is a statutory corporation and an agent of the Crown with the common law and statutory consequences that flow from that status (s 4, s 5).
A board governs the Authority and is composed of a chair, deputy chair and between 3 and 6 other members, all appointed by the Minister (s 6). Schedule 1 sets terms, conflict of interest rules and meeting procedures (Schedule 1).

Functions and functional constraints

The Authority’s operative duties are to provide and promote recreational and tourism services, conserve and enhance native biodiversity and landscape, manage and research plant collections, promote understanding of biodiversity, promote cultural heritage and promote horticultural uses of flora (s 9(2)). These function statements operate as objectives that bound the exercise of powers, and management plans must advance them (s 17(4)).

Powers and conditional approvals

Section 10 confers broad incidental powers. Specific transactional powers (acquire, dispose, grant leases/licences, erect permanent structures, undertake roadworks) are available but subject to Ministerial approval where indicated in s 11. Long leases (over 5 years), disposals and works above the relevant amount require Minister approval and must conform to the relevant management plan (s 11(1)-(2)). The “relevant amount” defaults to $100,000 unless prescribed (s 11(4)).

Management plans and public process

Management plans are the statutory instrument by which operational policy is fixed for five year periods and are binding on the Authority (ss 15-18). The Act prescribes public notification, a minimum submissions period of two months, Ministerial approval and publication of approval in the Gazette (ss 19-22). The Minister may modify or add to the first management plans applied on commencement, which subjects initial policy to Ministerial direction (s 16(4)-(5)).

Staffing and park management officers

The CEO is appointed under the Public Sector Management Act and runs day‑to‑day operations and staffing (s 23). The Authority may engage other staff, and may use other government officers or facilities by arrangement (ss 24-25).
Park management officers are designated by the Authority and include police officers ex officio (s 26). They receive identity cards (s 27) and are given specific powers to require identification, search certain vehicles and non‑permanent structures, remove items and require persons to leave designated land where offences are being committed or emergency situations exist (s 28-29). There are separate offence and obstruction provisions (s 30).

Financial and accountability framework

Funding sources are parliamentary appropriation, receipts from operations, gifts, borrowings, transfers from the Foundation and modified penalties (s 31). The Account is established as an agency special purpose account under the Financial Management Act or at a bank (s 32). The Financial Management Act and Auditor General Act apply to the Authority’s financial administration and reporting (s 37).

Foundation as fundraising vehicle

The Foundation is a separate corporate body established to attract public interest and donations for the Authority’s functions (ss 38-40). The Foundation Account is subject to the Authority’s control and funds may be transferred to the Authority (s 42(3)).

Enforcement mechanics

The Act provides an infringement notice regime for prescribed offences under the regulations with a 28 day payment period, authorised persons, powers to withdraw notices and effects of payment (s 51). In vehicle offences, park management officers may serve a notice on the owner requiring identification of the driver; failure to comply results in the owner being deemed, in the absence of proof to the contrary, to have committed the offence (s 49(2)-(6)). Speed measuring equipment evidence is admissible and presumed accurate absent contrary evidence (s 50).

Overlap and supremacy rules

Local laws generally do not apply to King’s Park (s 53A). For public‑health matters the Chief Health Officer has local‑government powers in respect of designated land and can make local laws that prevail over other local laws to the extent of inconsistency; the Chief Health Officer must consult the Authority before making local laws (s 44A(2)-(5)).

Transparency, secrecy and liability

The Minister may give binding written directions and must be given access to any information held by the Authority (ss 13-14). Board members and staff are subject to confidentiality obligations with criminal penalties for breaches (s 47). There is a statutory bar on tort claims against persons (other than the Authority) acting in good faith under the Act (s 45).

Schedules and transitional measures

Schedule 1 governs board constitution and conflicts of interest, including a mechanism for the board to permit an interested member to vote in specified circumstances and for the Minister to declare clauses inapplicable in relation to specified matters (Schedule 1 cl 16-20). Schedule 2 dissolves the previous King’s Park Board and transfers its assets, liabilities, agreements, staff and rangers to the new Authority on commencement (Schedule 2).

These core concepts create a model where statutory management is centralised under an Authority accountable to a Minister, with public participation through management plans, operational autonomy constrained by approvals for major transactions, a dedicated financial and fundraising apparatus, and specific enforcement instruments for on‑site compliance.

Primary public bodies and officials

The Authority itself, its board and staff are the primary actors whose roles are defined and limited by the Act (ss 4, 6, 23-25). The Minister has appointment power and direction power (s 6(3)-(4); s 13). The Treasurer participates in financial oversight and must approve borrowings, borrowing limits and guarantees (ss 33-35). The Chief Health Officer acquires local‑government powers for public health on designated land (s 44A).

Owners, occupiers and users of designated land

Users of designated land are affected by the Authority’s ability to impose fees, charge for events and entry (s 10(2)(i)-(k)), to restrict movement and access by regulation (s 53(2)(c)-(d)), and to require people to leave designated land for regulatory or emergency reasons (s 29). Drivers and vehicle owners are specifically affected by the onus‑shift notice mechanism that may deem an owner to have committed a vehicle offence unless they identify the driver or prove the vehicle was stolen or unlawfully used (s 49(2)-(6); s 52).

Commercial parties and lessees

Entities wishing to occupy or commercialise parts of designated land will engage with the Authority for leases, licences, events and contracts (s 10(2)(b), (i)-(l)). Leases exceeding five years, land acquisitions and disposals, and permanent structures or large works over the relevant amount require Ministerial approval and management plan conformity (s 11). Business arrangements require Minister and Treasurer approval for terms in some cases (s 10(2)(m)-(3)).

Local governments and other agencies

Local laws do not apply to King’s Park (s 53A), so local governments lose regulatory reach over that reserve. Other public bodies carrying out work affecting designated land must consult the Authority and have regard to its views (s 44). Departments and agencies may enter arrangements to provide staff and facilities to the Authority (s 25).

Donors, members and the public

Donors and supporters interact with the Foundation and may contribute funds that are subject to directions by the Authority once in the Foundation Account (ss 40, 42(3)). The public is a statutory consultation participant in management plan preparation through the notification and submission process (ss 19-21).

Persons designated park management officers and police

Staff or persons designated as park management officers obtain enforcement powers that include stop, detain and search powers for vehicles and tents and powers to remove property or require people to leave a reserve (ss 26-29). Police are ex officio park management officers (s 26(3)); the Act preserves police powers (s 28(6)).

Children and responsible adults

Responsible adults may be sued for loss caused by intentional or negligent acts of children (s 48). The Authority may recover loss from a responsible adult unless the adult proves they did not neglect to exercise due care and control.

Third parties contracting or entering business arrangements

The Authority may contract with private parties or other government bodies for services, consultancy or commercial exploitation of intellectual property (s 10(2)(l)-(m)). Such contracts are subject to the requirement that some arrangements need Ministerial or Treasurer approval and that they must align with the management plan where required (s 11, s 10(2)(m)).

Litigants and courts

Courts may be engaged by the Authority for recovery of losses under s 48, for prosecutions under regulations and for disputes arising from leases and contracts. The Act provides evidentiary presumptions for speed measuring equipment and vehicle owner onus shifts that alter typical evidentiary burdens (ss 49-50).

Other affected groups

Businesses that rely on local law regimes (for example to trade, rely on local permits or enforce offences) will find that King’s Park sits outside most local law regimes (s 53A) and must instead interact with the Authority, the Minister and, for public health matters, the Chief Health Officer (s 44A). Individuals who deal with the Authority’s staff must be mindful of confidentiality rules and restrictions on disclosure by board members and staff (s 47).

In practical terms, the Act places operational control in the Authority with Ministerial and Treasurer oversight for major transactions, creates compliance obligations for users and owners of vehicles on designated land, and centralises fundraising and financial control through an Authority‑directed Foundation account. Those who plan events, commercial activities or works on designated land will need to observe the management plan process and obtain necessary approvals in advance.

Obligations of the Authority

The Authority must control and manage designated land in accordance with management plans (s 15(1)). Management plans must be available to the public for inspection free of charge (s 15(2)). The Authority must prepare initial plans and review plans at prescribed intervals and must have the objective of promoting the statutory functions set out in s 9(2) when reviewing plans (ss 16-17).
The Authority must obtain Ministerial approval before exercising certain important powers: acquiring or disposing of land, granting leases or licences for terms longer than five years, erecting permanent structures if cost exceeds the relevant amount, and undertaking works that exceed the relevant amount (s 11(1)). The exercise of those powers must conform to the relevant management plan (s 11(2)).
The Authority must comply with Ministerial directions in writing (s 13(1)) and include the text of any such direction in its annual report under the Financial Management Act (s 13(2)). The Authority must furnish information and documents to the Minister on request (s 14).
Financially, the Authority must operate an Account and is subject to the Financial Management Act and Auditor General Act for administration, audit and reporting (ss 31-32, 37).

Duties of the board and members

Board members are appointed by the Minister and must possess expertise relevant to the Authority’s functions in the Minister’s opinion (s 6(3)-(4)). Members have duties under Schedule 1, including disclosure of material personal interests (Schedule 1 cl 16) and restrictions on voting where an interest exists (cl 17), subject to a board resolution that may permit participation (cl 18) or Ministerial declarations removing clauses (cl 20). Members are remunerated on a Ministerial recommendation (s 8).

CEO and staff duties

The CEO is appointed under the Public Sector Management Act and administers day‑to‑day operations and engages staff subject to CEO control (s 23(1)-(2)). Staff are employed on terms determined by the CEO, subject to industrial instruments where relevant (s 24). The Authority may arrange staff or facilities from other departments or agencies by agreement (s 25).

Park management officers’ powers and duties

Park management officers may require name and address, stop and search vehicles, remove vehicles, animals or other things, enter and search non‑permanent structures and require people to leave designated land in specified circumstances (s 28(2)-(3), s 29(1)). A person must not obstruct a park management officer (s 30). Park management officers must, before exercising certain powers, take reasonable steps to inform the affected person of the intention and reasons (s 28(5)). Identity cards must be produced on request and returned on cessation of designation (s 27(1)-(5)).

Public and stakeholder rights

Members of the public have rights to inspect management plans at the Authority’s office free of charge and to make written submissions within a statutory consultation period not less than two months (ss 15(2), 19-20). Those submissions must be considered by the Authority and may lead to amendments before submission to the Minister for approval (s 21(1)(a)).

Regulatory rights and penalties

The Act authorises the making of regulations prescribing offences with penalties up to $2,000 (s 53(2)(f)). Specific criminal penalties are set in the Act for certain conduct, such as failing to return an identity card (penalty $1,000, s 27(5)), failing to leave designated land after being required (penalty $2,000, s 29(2)), obstructing a park management officer (penalty $5,000, s 30), and breaching confidentiality obligations (penalty $10,000 and imprisonment for 12 months, s 47).

Financial and contractual rights

The Authority can require payment of rent, fees and charges for use of facilities and parts of designated land and fix, waive or refund those amounts (s 10(2)(i), (k)). It may enter into contracts and business arrangements, subject to Minister and Treasurer approval for specified arrangements (s 10(2)(l)-(m); s 10(3)). The Authority may borrow with Treasurer approval and may have Treasurer guarantees subject to the Treasurer’s terms (ss 33-35).

Owner onus in vehicle offences and evidentiary presumptions

Park management officers may give notices shifting the evidential onus to the vehicle owner to identify the driver, and an owner who fails to respond may be deemed, in the absence of proof to the contrary, to have committed the offence (s 49(2)-(6)). Evidence from speed measuring equipment used by a park management officer is admissible and presumed correct in the absence of contrary evidence (s 50).

Foundation governance and donor control

The Foundation is a separate corporate body with its own council and powers to attract donations (ss 38-41). However, moneys in the Foundation Account are subject to the direction and control of the Authority and may be transferred to the Authority for carrying out the Act (s 42(3)). The Minister may make rules for Foundation governance on recommendation of the Authority (s 43).

Interaction with other laws

The Authority is an agent of the Crown (s 5). The Financial Management Act and Auditor General Act apply to the Authority’s financial administration (s 37). The CEO appointment follows the Public Sector Management Act (s 23). For public health, the Chief Health Officer gets Local Government Act powers in relation to designated land (s 44A). Local laws do not apply to King’s Park (s 53A).

These duties and rights establish a framework where the Authority has operational autonomy within the constraints of management plans, Ministerial and Treasurer oversight on major transactions, statutory enforcement powers for compliance, and a fundraising conduit through the Foundation whose funds remain subject to Authority control.

Statutory offences and penalties

The Act prescribes specific offences with monetary and custodial penalties and establishes a regulatory delegation to make further offences by regulation (s 53(2)(f)). The statutory penalties expressly set in the Act include:
- Failure by a former park management officer to return an identity card: penalty $1,000 (s 27(5)).
- Failure to leave designated land when required: penalty $2,000 (s 29(2)); police may remove the person and detain for removal if necessary (s 29(3)-(4)).
- Obstructing a park management officer: penalty $5,000 (s 30).
- Breach of confidentiality by a current or former board member, committee member or member of staff: penalty $10,000 and imprisonment for 12 months (s 47).
- Regulations may create offences with penalties not exceeding $2,000 per offence (s 53(2)(f)). Those prescribed offences may be the subject of infringement notices (s 51).

On‑site enforcement powers

Park management officers may exercise specified enforcement powers in relation to offences against the regulations and section 30 (s 28(1)). Permitted powers include requiring name and address (s 28(2)(a)), stopping, detaining and searching vehicles where an offender is or is reasonably suspected to be in the vehicle (s 28(2)(b)), removing vehicles, animals or other things from designated land (s 28(2)(c)), and entering and searching non‑permanent structures such as huts or tents (s 28(2)(d)). Before exercising powers to stop, search or remove, park management officers must take reasonable steps to inform the person or owner of the intention and reasons (s 28(5)). Police retain their full powers and are ex officio park management officers (s 26(3); s 28(6)).

Requirement to leave and removal

A park management officer can require a person to leave designated land if they find the person committing a regulation offence or believe an emergency situation exists (s 29(1)). Remaining after being required to leave is an offence subject to the $2,000 penalty (s 29(2)). Police may remove or arrange for removal and detain if necessary for removal; non‑police park management officers may detain until delivery to police (ss 29(3)-(4)).

Infringement notice regime

The Act provides an infringement notice scheme for park management officers to offer a modified penalty alternative to court prosecution for prescribed offences (s 51(2)). An infringement notice must specify the alleged offence, the modified penalty, the 28 day period for payment and who the authorised persons are for receiving the payment (s 51(3)). Payment within the period prevents prosecution and penalty to the same extent as if the offender had been convicted by a court (s 51(6)). The Authority may appoint authorised persons to receive payments, extend payment timeframes and withdraw notices (s 51(10), (5), (7)). Payment of a modified penalty is not an admission for other proceedings (s 51(9)).

Shifting the evidential onus for vehicle offences

For vehicle offences, the Act allows a park management officer to serve a notice on the vehicle owner requiring identification of the driver (s 49(2)-(3)). If the owner does not identify the driver or prove the vehicle was stolen, unlawfully taken or unlawfully used within 28 days, the owner is deemed, in the absence of proof to the contrary, to have committed the offence (s 49(6)). Notices may be attached to the vehicle or given to the owner within 21 days (s 49(4)). Section 52 allows inclusion of the section 49 notice in the same document as an infringement notice.

Evidentiary presumptions for speed enforcement

Evidence that a park management officer used speed measuring equipment in relation to a vehicle, and the speed recorded by that equipment, is, in the absence of contrary evidence, proof of speed (s 50(2)-(3)). A park management officer’s evidence that apparatus used was speed measuring equipment is, absent contrary evidence, proof of that fact (s 50(4)). This creates a presumption in prosecutions under the regulations for speed offences.

Obstruction and detention mechanics

Failure to provide full and correct name and address when requested constitutes obstruction and may lead to detention and delivering the person to police (s 28(3)-(4)). General obstruction offence attracts a $5,000 penalty (s 30).

Administrative oversight and accountability

Ministerial directions to the Authority must be complied with and are recorded in the Authority’s annual report under the Financial Management Act (s 13(1)-(2)). The Minister may access and copy any of the Authority’s information and documents, imposing an administrative accountability channel for enforcement and oversight (s 14).

Practical enforcement profile

The Act gives the Authority and its designated officers a mix of administrative and criminal enforcement tools. The infringement notice mechanism supports on‑site, low‑cost enforcement for regulatory offences, while the power to shift the onus to vehicle owners and the presumptions for speed measuring equipment reduce evidentiary burdens for certain offences. The ability to detain and remove persons until police arrive and the substantial penalties for obstructing officers or breaching confidentiality create enforcement leverage on site. Ministerial and Treasurer oversight of significant transactions functions as an administrative check on potentially transformational financial or land dealings.

Cross‑references and statutory integration

The Act expressly imports, applies and modifies a number of other statutory regimes. The CEO appointment operates under Part 3 of the Public Sector Management Act 1994 (s 23(1)). The Authority Account is to be established under the Financial Management Act 2006 as an agency special purpose account or, with Treasurer approval, held at a bank as defined in that Act (s 32(1)). The Financial Management Act 2006 and Auditor General Act 2006 apply to the Authority for financial administration, audit and reporting (s 37). These references integrate the Authority into the State’s public sector financial and accountability architecture.

Crown agency status

The Authority is an agent of the Crown and enjoys the status, immunities and privileges of the Crown (s 5). That confers the legal characteristics of Crown agency status on the Authority, including the consequences for service of process and some liability exposures. The Act also contains a statutory protection for other persons acting in good faith under the Act from actions in tort (s 45), while preserving any liability of the Authority or the Crown.

Local Government Act and Chief Health Officer

For public health matters the Chief Health Officer acquires the powers and authority of a local government under the Local Government Act 1995 as if the designated land were a district and the Chief Health Officer were the local government (s 44A(2)). This includes power to make and enforce local laws under the Local Government Act (s 44A(3)). The Chief Health Officer’s power to make local laws is subject to consultation with the Authority (s 44A(4)(b)), but the local laws made by the Chief Health Officer prevail over other local laws to the extent of conflict (s 44A(5)). Part 3 Division 2 Subdivision 2 of the Local Government Act is partially inapplicable to the Chief Health Officer’s law‑making (s 44A(4)(a)). This gives public health a distinct legal route to regulate matters on designated land, parallel to and potentially superior to local government regulation.

Local laws and King’s Park

Section 53A explicitly provides that no local law applies to or in respect of King’s Park (s 53A(1)), except local laws made by the Chief Health Officer under s 44A(2) (s 53A(2)). This changes the locus of regulatory competence, removing the applicability of municipal by‑laws and consolidating regulatory power with the Authority and the Chief Health Officer.

Road traffic and vehicle definitions

The Act adopts the definition of vehicle from the Road Traffic (Administration) Act 2008 (s 3). It also references speed measuring equipment defined in Road Traffic (Administration) Act 2008 s 117(1) and incorporates evidentiary rules for speed measuring equipment (s 50). The owner definition relies on the Road Traffic (Vehicles) Act 2012 licence regime (s 3). These connections mean vehicle offences on designated land interact with the State road traffic legislative framework and rely on the same technical definitions and apparatus.

Industrial relations and employment law

The CEO is appointed under public sector rules but Part 3 Division 3 of the Public Sector Management Act 1994 does not apply to the Authority (s 24(4)). Staff are employed subject to relevant industrial awards, orders or agreements and the CEO determines terms and conditions (s 24(2)). The Labour Relations Reform and consequential amendments appear in the compilation table. The Authority may use the services of public servants by arrangement with relevant employers (s 25). These provisions create a hybrid employment identity for staff, with some public sector rules preserved and others excluded.

Financial guarantees and consolidated account implications

The Treasurer may guarantee borrowing by the Authority under s 34; payments under such guarantees are to be made by the Treasurer from the Consolidated Account and the Treasurer must cause amounts recovered from the Authority to be credited back to the Consolidated Account (s 36). Guarantees therefore have direct implications for State finances and the Consolidated Account.

Transitional and predecessor legislation

Schedule 2 dissolves the King’s Park Board appointed under the Parks and Reserves Act 1895 and continues the effect of prior agreements, instruments and staff arrangements by vesting assets, liabilities and operations in the new Authority on commencement (Schedule 2 cl 2-8). References in other written laws to the former Board are to be read as references to the Authority (Schedule 2 cl 5).

Regulatory reach and confidence

The Act allows regulations to restrict access for conservation purposes, to regulate vehicle use, parking and standing, to impose fees and to create offences (s 53(2)(a)-(e)). These regulatory powers enable the Authority to shape on‑site behaviour consistent with conservation and recreation objectives while placing such measures within the State regulation framework.

Evidentiary and procedural interactions

The owner‑onus mechanism in s 49 and the evidentiary rules for speed measuring equipment in s 50 interact with prosecutorial practice and civil procedures by shifting standard burdens of proof within the specific environment of designated land.

Overall, the Act is drafted to sit within and modify existing public sector, local government, road traffic and financial laws so that the Authority can operate with both the autonomy of a statutory corporation and the oversight and fiscal disciplines of public financial management. The statutory connections create a tightly interwoven legal environment for designated land management.

The compilation table in the Act documents subsequent amendments and their commencement. The statutory text itself carries amendment annotations at certain provisions. The key recorded amendments and consequential matters in the compilation table are:

Initial enactment: Botanic Gardens and Parks Authority Act 1998 (No. 53 of 1998). The Act other than ss 1-2 commenced 1 July 1999 (compilation table).
Corporations (Consequential Amendments) Act 2001 (No. 10 of 2001) made a textual amendment reflected in Schedule 1 clause 2 relating to removal for insolvency under the Corporations Act; commenced 15 July 2001 (compilation table).
Labour Relations Reform Act 2002 (No. 20 of 2002) amended s 24 and related employment provisions; commenced 15 September 2002 (compilation table).
Sentencing Legislation Amendment and Repeal Act 2003 (No. 50 of 2003) amended s 30, reflected in a penalty adjustment; commenced 15 May 2004 (compilation table).
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004) made consequential changes to infringement and prosecution processes; commenced 2 May 2005 (compilation table).
Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006) implemented structural financial changes and updated references to the Financial Management Act and Auditor General Act; commenced 1 February 2007 and amended ss 13, 32, 36, 37 and others as annotated (compilation table).
Public Sector Reform Act 2010 (No. 39 of 2010) amended remuneration and public sector references such as s 8; commenced 1 December 2010 (compilation table).
Road Traffic Legislation Amendment Act 2012 (No. 8 of 2012) amended definitions and evidentiary provisions referencing the Road Traffic Acts; the s 3 definition and s 50 amended and noted; the cited commencement in the compilation table is 27 April 2015 for provisions that relied on that Act’s implementation.
City of Perth Act 2016 (No. 2 of 2016) and Public Health (Consequential Provisions) Act 2016 (No. 19 of 2016) effected insertion of s 44A conferring Chief Health Officer powers and the addition of s 53A excluding local laws from King’s Park; ss 44A and 53A inserted in 2016 with commencement dates in 2016-2017 as recorded (compilation table).
Road Traffic Legislation Amendment (Infringement Management Reform) Act 2024 (No. 15 of 2024) made further amendments to the road traffic/infringement provisions; those amendments are noted as commencing 7 October 2024 (compilation table). Section 50 shows an amendment in 2024 (s 50 amended: No. 15 of 2024 s. 66).

Specific amendments called out in the statutory text include:

Definition updates in s 3 amended by No. 8 of 2012 s. 44.
Section 13 amended by No. 77 of 2006 Sch. 1 cl. 16(1) regarding Ministerial directions reporting (text annotation).
Section 24 amended by No. 20 of 2002 s. 27 and further editorial amendments noted in the Gazette (text annotation).
Section 27 identity card penalty and procedure retained; s 27 amended references not otherwise shown.
Section 30 penalty amended by No. 50 of 2003 s. 39(2).
Sections 32 and 37 were amended in 2006 to align with Financial Management Act machinery (No. 77 of 2006 Sch. 1 cl. 16(2) and cl. 16(3)).
Insertions of ss 44A and 53A in 2016 are recorded (No. 2 of 2016 s. 28, s. 29).

Reprints and consolidation

The compilation table lists reprints where the Act was consolidated with amendments: Reprint 1 (as at 13 June 2003), Reprint 2 (as at 6 August 2010) and Reprint 3 (as at 7 December 2018). Later amendments up to 2024 are reflected in the compilation table and marginal notes.

Practical effect of historical amendments

The 2006 financial amendments integrated the Authority into the Financial Management Act regime and imported modern public financial management and audit obligations (ss 32, 36, 37).
The 2016 public health insertions reallocated public health regulatory powers on designated land to the Chief Health Officer and provided that local laws do not apply to King’s Park, shifting regulatory competence away from local governments (s 44A, s 53A).
Road traffic and infringement amendments in 2012 and 2024 updated evidentiary rules and infringement management procedures that apply within designated land (s 50, s 51; compilation table entries).

The Act’s amendment history shows a trajectory of integrating the Authority with the State’s financial accountability framework, clarifying employment and public sector arrangements, and adjusting enforcement and public health jurisdiction on the designated lands.

The text of the Act and the compilation provided do not include any court decisions, judicial interpretations or litigation history. The statute itself names no cases. The Act contains evidentiary presumptions (s 50) and onus‑shifting mechanisms (s 49), both of which are fact patterns that may have generated dispute in practice, but no decisions or judicial authorities are recorded in the Act text or compilation materials provided.

Because there are no cases cited in the statutory text, there is no statutory litigation history to summarise. Users seeking case law on the operation of the Authority, challenges to management plans, enforcement actions by park management officers, onus shifting under s 49, or conflicts arising under s 44A should search relevant West Australian court and tribunal databases and the public law reporting services for judicial decisions post‑enactment. The Act does, however, embed administrative review points such as Ministerial approvals and mandatory management plan consultation which may form the procedural posture of any judicial review challenge to decision‑making under the Act.

Several discrete features of the Act produce practical traps and decision points that parties and advisers should note.

Ministerial approvals and post‑hoc modifications

Significant transactions require Ministerial approval and must conform to management plans (s 11(1)-(2)). The Minister may also, in respect of the first management plans, modify or add provisions by notice and those notices are binding on the Authority (s 16(4)-(5)). This means a project that appears to comply with the Authority’s plan may still require Ministerial approval and may be modified or constrained by Ministerial notice. Practitioners must check both the management plan and any Ministerial notices.

Relevant amount threshold and regulation

The “relevant amount” triggering Ministerial approval for works and permanent structures is $100,000 unless prescribed otherwise (s 11(4)). That monetary threshold can be changed by regulation; users must monitor regulations to determine whether the threshold has been altered and whether approvals are triggered.

Management plans as binding instruments

Management plans bind the Authority (s 15(1)) and must be publicly available (s 15(2)). The plan process requires public notice and a minimum submissions period of two months (ss 19-20). However, the Minister may make amendments under s 21 or under s 16(4) for first plans. That fusion of public consultation and Ministerial discretion creates a process risk: stakeholders may expend resources in consultation without certainty that the Minister’s approval will preserve submissions‑based changes.

Onus shifting for vehicle owners

Section 49 allows notices to be attached to vehicles or given within 21 days and to require identification of the driver within 28 days; failure to comply leads to deeming the owner to have committed the offence in the absence of contrary proof (s 49(4)-(6)). Owners must maintain records or be prepared to discharge this evidential onus. This mechanism can catch fleet operators, short‑term hire providers and owners whose vehicles are regularly used by others.

Local law non‑application and public health supremacy

No local law applies to King’s Park (s 53A(1)). However, the Chief Health Officer may make local laws in relation to designated land and those laws prevail over other local laws in case of inconsistency (s 44A(2)-(5)). This creates a bifurcated legal landscape where local government regulatory reach is removed, but public health rules made by the Chief Health Officer can operate and prevail. Entities must check both Authority rules and any Chief Health Officer local laws.

Conflicts of interest and Ministerial power to override

Schedule 1 requires disclosure of material personal interests and normally prevents interested members from voting (Schedule 1 cl 16-17). The board can pass a resolution allowing voting despite interests (cl 18). The Minister may declare clauses 17 and 19 inapplicable for specified matters (cl 20). That leaves a practical governance risk where the Minister can remove conflict‑of‑interest constraints in particular cases. Practitioners advising on board decisions should check whether the Minister has issued a declaration.

Foundation funds directed by the Authority

Moneys in the Foundation Account are subject to the direction and control of the Authority and can be transferred to the Authority for carrying out the Act (s 42(3)). Donors expecting independent Foundation control over gifts may find those funds subject to Authority direction, which affects donor conditions and restricted gifts.

Park management officers’ search and detention powers

Park management officers may stop, detain and search vehicles, remove items and enter non‑permanent structures (s 28(2)). They may detain persons until delivery to police if a name and address is not provided (s 28(4)), and non‑police park management officers may detain until police arrive (s 29(4)). These powers are significant and subject to procedural safeguards in s 28(5). Advisers should ensure designation, training and internal procedures align with legal thresholds for reasonable grounds and proper exercise of power.

Confidentiality offence severity

A breach of confidentiality by a board member or staff is punishable by $10,000 and imprisonment for 12 months (s 47). This criminal sanction is severe and applies to “directly or indirectly, record, disclose or make use of” information obtained in the course of duty unless an exception applies. Governance and data handling policies require strict controls.

Overlap of enforcement and civil liability protections

Section 45 excludes tort actions against persons (other than the Authority) acting in good faith under the Act. That may affect potential third‑party liability exposures but does not remove Authority or Crown liability (s 45(1)-(3)). Advisers should parse where the protection applies and whether the Authority itself may have exposure.

Minister’s right to directions and reporting

The Minister can give directions that the Authority must give effect to (s 13(1)) and those directions must be included in the Authority’s annual report (s 13(2)). This creates transparency about Ministerial control but also means that politically sensitive directives become part of the public record.

Evidentiary presumptions

The presumption for speed measuring equipment and owner onus for vehicle offences shift evidentiary burdens in favour of enforcement (ss 49-50). Defendants and advisers must prepare to contest such presumptions with contrary evidence.

Regulatory scope by regulation

The Act gives broad regulatory power to the Governor to make regulations for the care, conservation and control of designated land, including access restrictions and vehicle controls, and to set fees and offence penalties up to $2,000 (s 53(1)-(2)). Much of day‑to‑day regulation may therefore be found in regulations rather than the statute, obliging a practice of checking the current regulations.

These “gotchas” point to the need for close attention to management plans, Ministerial and Treasurer consents, preservation of records for vehicle owner onus, data and confidentiality compliance, and the regulations and Ministerial notices that operate in the background of statutory powers.

Checklist for the Authority (operational compliance)

Management plans: Keep current management plans available at the Authority office and online where possible. Review plans within 5 years of approval or as required by s 17. Follow the public notification steps (s 19), accept submissions for at least two months (s 20) and submit revised plans or amendments to the Minister for approval (s 21). Ensure conformity of any proposed lease, licence, permanent structure or significant works with the relevant management plan prior to seeking Ministerial approval for such actions (s 11(2)).
Ministerial and Treasurer approvals: Before acquiring or disposing of land, granting leases longer than five years, erecting permanent structures above the relevant amount or undertaking works above the relevant amount obtain the Minister’s written approval (s 11(1)). For borrowings and guarantees, secure prior written approval from the Treasurer and meet any security requirements (ss 33-35).
Financial management and reporting: Establish and operate the Botanic Gardens and Parks Authority Account under the Financial Management Act framework (s 32). Prepare financial statements and annual reporting in accordance with the Financial Management Act and Auditor General Act obligations (s 37). Record Ministerial directions in the annual report (s 13(2)).
Staffing, identity and training: Appoint the CEO under the Public Sector Management Act (s 23). Designate park management officers by written instrument (s 26(1)), issue identity cards in the prescribed form (s 27(1)-(2)), and ensure returning of cards upon cessation to avoid penalty (s 27(5)). Train park management officers in legal thresholds for stop, search, detention and removal powers, and document the reasonable‑grounds procedures required by s 28(5).
Information and confidentiality: Implement strict information controls and confidentiality policies for board members, committee members and staff to comply with s 47. Record disclosures of material personal interests by board members and manage conflicts in line with Schedule 1 (Schedule 1 cl 16-19).
Foundation oversight: Administer the Foundation Account in compliance with s 42 and the Financial Management Act, and manage donor restrictions ensuring the Authority’s control over Foundation funds is explicit to donors (s 42(3)).
Regulation implementation and fee setting: Make or administer fees and charges under s 10(2)(i)-(k) and reflect any regulatory fee regimes established under the regulations (s 53(2)(e)). Ensure authorisation of persons who can receive modified penalty payments and set procedures for withdrawal or extension of infringement notices (s 51).

Checklist for contractors, lessees and commercial users

Check management plan constraints: Before proposing works, events or structures, confirm the relevant management plan’s policies and ensure the proposed activity aligns with the plan’s objectives (ss 15-18). For projects beyond thresholds set in s 11, seek Ministerial approval in advance.
Lease and licence negotiation: For leases or licences, note that the Authority may grant on terms it thinks fit but that leases exceeding five years require Ministerial approval and inclusions of options may count towards the term (s 11(3)). Confirm any existing leases that predate the Act remain unaffected per Schedule 2 cl 10.
Fee and permit compliance: Expect fees for entry, events, use of facilities and plant sales under s 10(2)(i)-(k). Obtain written terms and keep records of payments. Check whether any particular part of designated land is subject to vehicle, access or other restrictions under the relevant regulations (s 53(2)(a)-(d)).

Checklist for vehicle owners and fleet managers

Maintain driver records: Keep contemporaneous records identifying drivers and users of vehicles to respond to a s 49 notice within 28 days and avoid the owner being deemed to have committed an offence (s 49(6)). If vehicles are hire, loaned or operated by multiple drivers, ensure systems exist to identify the driver on the relevant date quickly.
Responding to notices and infringement process: If served with an infringement notice under s 51, note the 28 day statutory payment period and authorised persons for receipt. If served with a s 49 owner‑onus notice, respond within 28 days to identify the driver or assert theft/unlawful taking/unauthorised use defence with evidence.

Checklist for local governments and other agencies

Consult the Authority before works: Any person or body acting under a written law must consult the Authority before carrying out works affecting designated land and have regard to the Authority’s views (s 44). For King’s Park, local laws generally do not apply (s 53A); however public health local laws by the Chief Health Officer may apply and prevail (s 44A).
Coordinate with Chief Health Officer: For public health matters on designated land consult and coordinate with the Authority because the Chief Health Officer must consult the Authority before making local laws affecting designated land (s 44A(4)(b)).

Checklist for donors and Foundation members

Understand direction and control: Donors should know that Foundation Account moneys are subject to the Authority’s direction and control and may be transferred to the Authority (s 42(3)). Document any conditional gifts carefully and ensure the conditions are accepted by the Authority so the gift can be applied in accordance with those conditions (s 31(2)).

Governance and compliance practices

Conflict of interest procedures: Ensure board meeting minutes record any disclosures under Schedule 1 cl 16 and that the board follows cl 17 voting restrictions, or passes the required resolution under cl 18 if it is to permit participation. Check whether any Ministerial declarations under cl 20 affect conflicts of interest.
Records, publication and transparency: Keep records to support decisions, Ministerial approvals and public submissions in the management‑plan process. Publish relevant notices in the Gazette and state daily newspapers as required (s 19).
Legal review and procurement practices: For major capital works, land dealings and business arrangements, conduct legal due diligence on Ministerial and Treasurer approval requirements and secure written approvals in advance (ss 11, 33-35). Use contract terms that require compliance with management plans and statutory obligations.

Following these steps and maintaining a compliance‑focused governance and recordkeeping regime will reduce legal risk. The Act creates a mixed model of administrative control, public consultation duties and enforcement powers; compliance requires attention to management plans, Ministerial/Treasurer approvals, staff designation and training, financial reporting standards and regulatory obligations under the regulations.

Deep Dive

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