Part 9Control of animals and plants

Part 9—Control of animals and plants 185—Preliminary (1) The Minister may, by notice in the Gazette— (a) declare that a specified provision of this Part applies to— (i) a specified class of animals; or (ii) a specified class of plants; and (b) in addition, with respect to a class of animals or a class of plants specified under paragraph (a), do either or both of the following: (i) declare that a specified area (which may be the whole or a part of the State) is a declared area for that class of animals or plants for the purposes of that provision; (ii) declare that a prohibition contained in that provision operates as an absolute prohibition in relation to that class of animals or plants and declared area (if any). (2) The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subsection (1). (3) A notice under subsection (1) cannot be made with respect to a class of native animals. (4) Subsection (3) does not apply if the notice is being made to give effect to a provision of a landscapes affecting activities control policy, or any other policy made or approved by the relevant regional landscape board and adopted by the Minister for the purposes of this section. (5) For the purposes of this Part, there will be 3 categories of animals and plants declared under subsection (1), being— (a) Category 1; or (b) Category 2; or (c) Category 3. (6) The following provisions will apply in relation to the assignment of animals and plants declared under subsection (1) to these categories: (a) a particular class of animals or plants may be assigned to a category by a declaration of the Minister under subsection (1), or by a separate notice published by the Minister in the Gazette under this subsection; (b) a particular class of animals or plants may be assigned to different categories for different parts of the State and for the purposes of different provisions of this Part; (c) any class of animals or plants that is not assigned to a category in the manner contemplated by paragraph (a) will be taken to be assigned to Category 1 in the particular circumstances. (7) The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subsection (6). Division 2—Control provisions Subdivision 1—Specific controls 186—Movement of animals or plants (1) Subject to this Act, a person must not bring an animal or plant of a class to which this subsection applies, or cause or permit an animal or plant of a class to which this subsection applies, to be brought into a declared area for that class of animals or plants. (2) Subject to this Act, a person must not transport or move, or cause or permit to be transported or moved, on a public road within a declared area for a class of animals or plants to which this subsection applies— (a) an animal or plant of that class; or (b) any animal, plant, soil, vehicle, farming implement or other produce, goods, material or thing carrying an animal or plant of that class. (3) Subject to this Act, a person who owns land within a declared area for a class of animals or plants to which this subsection applies must not move, or cause or permit to be moved— (a) an animal or plant of that class; or (b) in the case of a class of plants any animal, plant, soil, vehicle, farming implement or other produce, goods, material or thing carrying a plant of that class, from one part of the land to another part of that land that is not affected or infested with animals or plants of that class, or to any land within the declared area. (4) It is a defence to a charge of an offence against subsection (2) or (3) if the defendant proves that the circumstances alleged to constitute the offence were not the result of a wilful or negligent act or omission on the defendant's part. (5) An authorised officer may, subject to conditions as the authorised officer thinks fit, exempt a person from compliance with a preceding subsection. (6) An exemption should be given in writing but may be given orally in a case of an emergency. (7) If an exemption is given orally, the authorised officer who gave it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person who has the benefit of the exemption. (8) An authorised officer may, by notice in writing given to a person who has the benefit of an exemption, vary or revoke the exemption, or a condition of the exemption, or attach a further condition to the exemption. (9) A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. 187—Possession etc of animals or plants (1) Subject to this Act, a person must not keep, or have in the person's possession or control, an animal of a class to which this subsection applies. (a) if the offence relates to a Category 2 animal—$1 000; (b) if the offence relates to a Category 3 animal—$600. (2) Subject to this Act, a person must not keep, or have in the person's possession or control, an animal of a class to which this subsection applies within a declared area for that class of animals. (a) if the offence relates to a Category 2 animal—$1 000; (b) if the offence relates to a Category 3 animal—$600. (3) Subject to this Act, a person must not have a plant of a class to which this subsection applies in the person's possession within a declared area for that class of plants. (a) if the offence relates to a Category 1 plant—$60 000 or imprisonment for 1 year; (b) if the offence relates to a Category 2 plant—$25 000 or imprisonment for 6 months; (c) if the offence relates to a Category 3 plant—$12 500. Expiation fee: If the offence relates to a Category 3 plant—$600. (4) For the purposes of subsection (3), a person who cultivates a plant, or allows a plant to grow on land that the person occupies, will be taken to be in possession of the plant (but this subsection does not in any way limit the operation of that subsection). 188—Sale of animals, plants etc (1) Subject to this Act, a person must not sell an animal or plant of a class to which this subsection applies. (a) if the offence relates to a Category 1 animal or plant—$60 000 or imprisonment for 1 year; (b) if the offence relates to a Category 2 animal or plant—$25 000 or imprisonment for 6 months; (c) if the offence relates to a Category 3 animal or plant—$12 500. Expiation fee: If the offence relates to a Category 3 animal or plant—$600. (2) Subject to this Act, a person must not sell any animal, plant, soil, vehicle, farming implement or other produce, goods, material or thing carrying an animal or plant of a class to which this subsection applies. (a) if the offence relates to a Category 1 animal or plant—$60 000 or imprisonment for 1 year; (b) if the offence relates to a Category 2 animal or plant—$25 000 or imprisonment for 6 months; (c) if the offence relates to a Category 3 animal or plant—$12 500. Expiation fee: If the offence relates to a Category 3 animal or plant—$600. (3) It is a defence to a charge of an offence against subsection (2) if the defendant proves that the circumstances alleged to constitute the offence were not the result of a wilful or negligent act or omission on the defendant's part. (4) An authorised officer may, subject to conditions as the authorised officer thinks fit, exempt a person from compliance with a preceding subsection. (5) An exemption should be given in writing but may be given orally in a case of an emergency. (6) If an exemption is given orally, the authorised officer who gave it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person who has the benefit of the exemption. (7) An authorised officer may, by notice in writing given to a person who has the benefit of an exemption, vary or revoke the exemption, or a condition of the exemption, or attach a further condition to the exemption. (8) A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. 189—Offence to release animals or plants (1) A person must not release an animal of a class to which this subsection applies, or cause or permit an animal of that class to be released. Maximum penalty: $125 000 or imprisonment for 2 years. (2) A person must not release an animal of a class to which this subsection applies, or cause or permit an animal of that class to be released, in a declared area for that class of animals. Maximum penalty: $125 000 or imprisonment for 2 years. (3) A person must not release a plant of a class to which this subsection applies, or cause or permit a plant of that class to be released, in a declared area for that class of plants. Maximum penalty: $125 000 or imprisonment for 2 years. (4) Subject to subsection (5), it is a defence to a charge of an offence against this section if the defendant proves that the circumstances alleged to constitute the offence were not the result of a wilful or negligent act or omission on the defendant's part. (5) The defence prescribed by subsection (4) does not apply if an authorised officer furnished to the defendant a notice in a form approved by the Minister— (a) in a case relating to an animal or class of animals— (i) requiring the defendant to keep the particular animal, or any animal of the relevant class, in captivity, or to take any other action relating to securing, controlling or managing the animal, or animals of that class; and (ii) warning the defendant that if the animal, or an animal of that class (as the case may be) were to be released into a declared area the defence would not apply; (b) in a case relating to a plant or class of plants— (i) requiring the defendant to keep the plant, or any plant of the relevant class, in a particular way, or to take any other action relating to securing, controlling or managing the plant, or plants of that class; and (ii) warning the defendant that if the plant, or a plant of that class, (as the case may be) were to be released into a declared area then the defence would not apply. (6) Any reasonable costs or expenses incurred by the Minister, or a regional landscape board, in the capture or destruction, or attempted capture or destruction, of an animal released in contravention of this section may be recovered as a debt from the owner of the animal or from the person who released it or caused or permitted it to be released. (7) Any reasonable costs or expenses incurred by the Minister, or a regional landscape board, in collecting, dealing with or destroying a plant released in contravention of this section may be recovered as a debt from the person who was in possession of the plant or from the person who released it or caused or permitted it to be released. (8) An apparently genuine document purporting to be a certificate of the Minister or a regional landscape board (as the case may be) stating the amount of any costs or expenses referred to in subsection (6) or (7) will, in the absence of proof to the contrary, be accepted as proof of the amount of those costs or expenses in any legal proceedings for their recovery. (9) An authorised officer may, subject to conditions as the authorised officer thinks fit, exempt a person from compliance with a preceding subsection. (10) An authorised officer may, by notice in writing given to a person who has the benefit of an exemption under subsection (9), vary or revoke the exemption, or a condition of the exemption, or attach a further condition to the exemption. (11) A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. (12) In this section— release— (a) in relation to an animal, means to set the animal at liberty or to release the animal from captivity or to allow (in any way) the animal to go at large; (b) in relation to a plant, means to release the plant into the open environment (including by sowing or planting any plant or plant material or by otherwise distributing seeds, spores, cuttings, divisions or other plant propagating material), whether or not it is released with provision for limiting the dissemination or persistence of the plant, or any related plant material, in the environment. 190—Notification of presence of animals or plants (1) If an owner of land within a declared area for a class of animals or plants to which this section applies becomes aware of the presence of an animal or plant of that class on that land, the owner must, within the prescribed period, notify the regional landscape board for the area in which the land is situated of the species of animal or plant and the locality in which it was seen or is to be found. Maximum penalty: $12 500. (2) If a regional landscape board becomes aware (other than by notification under subsection (3)) of the presence of an animal or plant of a class to which this section applies on land situated within both a declared area for that class of animals or plants and its region, the board must, within 48 hours, notify the Chief Executive of the species of animal or plant and the locality in which it was seen or is to be found. (3) If the Chief Executive becomes aware (other than by notification under subsection (2)) of the presence of an animal or plant of a class to which this section applies on land situated within a declared area for that class of animal or plant, the Chief Executive must, within 48 hours, notify the regional landscape board for the area in which the land is situated of the species of the animal or plant and the locality in which it was seen or is to be found. prescribed period means— (a) in relation to a Category 1 animal or plant—24 hours; (b) in relation to a Category 2 animal or plant—3 days; (c) in relation to a Category 3 animal or plant—7 days. 191—Requirement in respect of keeping or management of certain animals or plants (1) A person who has in the person's possession or control an animal of a class to which this subsection applies must comply with any instructions of an authorised officer with respect to the keeping or management of any animal of that class. Expiation fee: If the offence relates to a Category 3 animal—$600. (2) An owner of land within a declared area for a class of animals to which this subsection applies must comply with any instructions of an authorised officer with respect to keeping any animal of that class on that land in captivity. (a) if the offence relates to a Category 1 animal—$60 000 or imprisonment for 1 year; (b) if the offence relates to a Category 2 animal—$25 000 or imprisonment for 6 months; (c) if the offence relates to a Category 3 animal—$12 500. Expiation fee: If the offence relates to a Category 3 animal—$600. (3) An owner of land within a declared area for a class of plants to which this subsection applies must comply with any instructions of an authorised officer with respect to keeping any plant of that class within the boundaries of that land. (a) if the offence relates to a Category 1 plant—$60 000 or imprisonment for 1 year; (b) if the offence relates to a Category 2 plant—$25 000 or imprisonment for 6 months; (c) if the offence relates to a Category 3 plant—$12 500. Expiation fee: If the offence relates to a Category 3 plant—$600. (4) An instruction under this section must be given by notice in a form approved by the Minister. 192—Owner of land to take action to destroy or control animals or plants (1) Subject to this section, an owner of land within a declared area for a class of animals or plants to which this subsection applies must destroy all animals or plants of that class on that land. (2) Subject to this section, an owner of land within a declared area for a class of animals or plants to which this subsection applies must control and keep controlled all animals or plants of that class on that land. (3) An owner of land within a declared area for a class of animals or plants to which this subsection applies must— (a) take any measures prescribed by the regulations or specified by a relevant authority in the prescribed manner for the control of all animals or plants of that class that are, or may be, on that land; (b) take any measures prescribed by the regulations or specified by a relevant authority in the prescribed manner requiring that the land, or anything present on the land, be subjected to specified treatment. (4) A relevant authority may, subject to such conditions as the relevant authority thinks fit, exempt a person from compliance with a preceding subsection. (5) A relevant authority may, by notice in writing given to a person who has the benefit of an exemption under subsection (4), vary or revoke the exemption, or a condition of the exemption, or attach a further condition to the exemption. (6) A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. (7) A person who breaches a requirement under subsection (1), (2) or (3) is not, on account of that breach alone, liable to any civil action, but is subject to the operation of section 193 and Part 10. (8) All regional landscape boards must carry out proper measures for the destruction of all animals or plants of a class to which subsection (1) applies and for the control of all animals or plants of a class to which subsection (2) applies on road reserves situated within both a declared area for that class of animals or plants and the region of the board. (9) In this section— 193—Action orders (1) If a relevant authority considers that an owner of land has been, is, or is likely to be, in breach of section 192(1), (2) or (3), the relevant authority may, by notice in a form approved by the Minister, issue an order (an action order) to the owner of the land under this section. (2) An action order— (a) must be in the form of a written notice served on the person to whom the order is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must specify the land or area to which the order relates; and (d) must state the grounds on which the order is issued; and (e) must state the species of animals or plants to which the order applies; and (f) must specify the action required to be taken to destroy or control the relevant animals or plants, or to otherwise comply with any requirement under section 192; and (g) must specify a period (which must be at least 14 days) within which the required action must be taken; and (h) may specify any other requirement considered reasonable by the relevant authority; and (i) must state that the person may, within 14 days, appeal to the ERD Court against the order or any subsequent variation to the order. (3) A relevant authority may, by written notice served on a person to whom an action order has been issued, vary or revoke the order. (4) A person to whom an action order is issued must comply with the order. Maximum penalty: $25 000. (5) If a person fails to comply with an action order, a relevant authority may take any action required by the order. (6) Action taken by a relevant authority under subsection (5) may be taken on the relevant authority's behalf by an authorised officer, a member of the Department, or another person authorised by the relevant authority for the purpose. (7) A person taking action under subsection (5) or subsection (6) may, after giving reasonable notice, enter the relevant land at any reasonable time (using any force that may be reasonably necessary in the circumstances) and carry out such measures as appear to be appropriate in the circumstances. (8) A person must not hinder or obstruct a person acting under this section. (9) The reasonable costs and expenses incurred by a relevant authority under this section (including under subsection (5) or subsection (6)) may be recovered as a debt from the person to whom the order was issued. (10) If an amount is recoverable by a relevant authority under subsection (9), the relevant authority may, by notice in writing to the relevant person, fix a period (which must be at least 28 days) within which the amount must be paid and if the amount is not paid within that period, the person is also liable to pay interest charged at the prescribed rate per annum on the amount unpaid. (11) In this section— 194—Boards may recover certain costs from owners of land adjoining road reserves (1) If a regional landscape board carries out on road reserve measures for the destruction or control of animals or plants of a class to which this section applies, the board may, within 3 months, give notice in writing to each owner of land adjoining the road reserve requiring the owner to pay to the board an amount specified in the notice within a period specified in the notice, being not less than 28 days from the date of the notice. (2) Subject to subsection (3), the amount specified in a notice under subsection (1) directed to an owner of land must be the amount determined by the regional landscape board to be the costs and expenses incurred by the board in carrying out the measures referred to in subsection (1) on the section of road reserve adjoining the owner's land up to the middle of the road reserve. (3) Despite subsection (2), a regional landscape board may, from time to time, fix a standard charge and determine the circumstances in which the standard charge is to apply (being a standard charge not exceeding an amount determined on the basis for the time being fixed by the Minister), and, if those circumstances apply in relation to an owner of land, the amount specified in a notice under subsection (1) directed to that owner will be the standard charge. (4) If an amount is not paid by an owner of land within the period within which it is required to be paid under this section, the owner is liable to pay interest charged at the prescribed rate per annum on the amount unpaid. (5) An amount payable to a regional landscape board by an owner of land under this section (including any interest charge) may be recovered by the board as a debt. (6) A regional landscape board may, if it is satisfied that just and proper grounds exists for it to do so, remit the whole, or part, of any amount payable by a person under this section. 195—Destruction or control of animals outside the dog fence by poison and traps (1) An owner of land bounded by and inside the dog fence may, for the purpose of the destruction or control of animals required to be destroyed or controlled in pursuance of this Division, lay poison or set traps on adjoining land immediately outside the dog fence in accordance with the terms of approved proposals and may gain such access to the adjoining land as is necessary for that purpose. approved proposals means— (a) proposals contained in a notice given under subsection (3) to which no notice of objection has been given under subsection (4); or (b) proposals contained in a notice given under subsection (3) as confirmed or varied by the Chief Executive under subsection (6). (3) If an owner of land proposes to lay poison or set traps pursuant to this section, the owner must first give notice, in a form approved by the Minister, of the proposal to the owner of the adjoining land. Maximum penalty: $1 750. Expiation fee: $225. (4) The owner of the adjoining land may, if not in agreement with any proposals contained in a notice given under subsection (3), within 14 days of the receipt of that notice, give notice of objection to the other owner. (5) If a notice of objection is given under subsection (4), an application for review of the proposals may be made to the Chief Executive within 14 days of the giving of that notice. (6) The Chief Executive may, on application made under subsection (5), confirm, vary or set aside the proposals. 196—Ability of Minister to control or quarantine any animal or plant (1) For the purposes of providing for the control of, or preventing the spread of, any animal or plant to which a provision of this Division applies, or the spread of any disease that may be carried by such an animal or plant, the Minister may, by notice in the Gazette, declare a portion of the State specified in the notice to be a quarantine area under this section. (2) A notice under subsection (1) may— (a) prohibit or restrict the movement from or within the quarantine area of— (i) any animal or plant of a specified kind; (ii) any soil, vehicle, farm implement or other produce, goods, material or thing of a specified kind, that might, in the opinion of the Minister, spread the relevant animals or plants or any disease; (b) require the owner of any land or the occupier of any premises within the quarantine area to take measures (including the destruction of animals or plants), specified in the notice, that are, in the opinion of the Minister, necessary to control, or to prevent the spread of, the relevant animals or plants, or the spread of any disease; (c) require the owner of any land or the occupier of any premises within specified parts of the quarantine area to take more stringent measures (including the destruction of animals or plants), specified in the notice, than owners or occupiers of other land or premises within the quarantine area; (d) prohibit the planting or propagation of plants, or plants of a specified kind, within the quarantine area during a period specified in the notice; (e) prohibit absolutely or subject to exceptions or conditions specified in the notice, the importing into the quarantine area of any animal, plant, soil, produce, goods, material or other thing of a specified kind; (f) provide that a prohibition or requirement under the notice will not apply in specified circumstances; (g) provide for any other matter prescribed by the regulations. (3) A notice under subsection (1) will have effect from a date specified in the notice. (4) The Minister may, by subsequent notice in the Gazette, vary or revoke a notice under subsection (1). (5) The Minister may, by notice in writing, confer exemptions from the operation of a notice, or specified parts of a notice, under this section. (6) An exemption under subsection (5) may be granted on such conditions as the Minister thinks fit. (7) The Minister may, by subsequent notice in writing— (a) vary or revoke an exemption; or (b) vary or revoke a condition of an exemption, or impose a new condition. (8) A person who contravenes or fails to comply with— (a) a notice under this section; or (b) a condition of an exemption under this section, Maximum penalty: $125 000 or imprisonment for 2 years. Expiation fee: $700. Subdivision 2—Permits 197—Permits (1) The relevant authority may issue a permit to a person— (a) authorising the movement of a specified animal or animals of a specified class, or of a specified plant or plants of a specified class; or (b) authorising the keeping or possession of an animal or animals of a specified class, or of a specified plant or plants of a specified class; or (c) authorising the sale of a specified animal or animals of a specified class, or of a plant or plants of a specified class. (2) Subject to this section, a permit authorises an act, activity or circumstance that would otherwise not be permitted under Subdivision 1. (3) A permit under this section may be issued by the relevant authority on such conditions as the relevant authority thinks fit. (4) A permit may not be issued under this section if a provision of Subdivision 1 operates as an absolute prohibition of the conduct for which the permit is sought by virtue of a declaration under Division 1. (5) The relevant authority must, in considering whether to issue a permit under this section and, if so, the conditions on which the permit may be issued, take into account any relevant provision of a landscapes affecting activities control policy. (6) The relevant authority must, in issuing a permit under this section that applies to a situation or circumstance within the Murray‑Darling Basin, take into account, and seek to further, the objects of the River Murray Act 2003 and the Objectives for a Healthy River Murray under that Act (insofar as they may be relevant). (7) If an application for a permit under this section applies to a situation or circumstance within a River Murray Protection Area and is within a class of applications prescribed by the regulations for the purposes of this provision (which class may be prescribed so as to consist of applications for all such permits), the relevant authority must, before making its decision on the application— (a) consult the Minister to whom the administration of the River Murray Act 2003 is committed; and (b) comply with the Minister's directions (if any) in relation to the applications (including a direction that the application not be granted, or that if it is to be granted, then the permit be subject to conditions specified by the Minister). (8) A person applying for a permit under this section must— (a) pay a fee (if any) prescribed by the regulations with respect to the application; and (b) if required by the relevant authority before the issuing of the permit, pay an amount, not exceeding an amount prescribed by the regulations, as security for compliance with any condition of the permit. (9) An amount paid under subsection (8)(b) will be paid into the Landscape Administration Fund and will, on the expiration or revocation of the permit, be repaid to the person by whom it was paid unless the person failed to comply with a condition of the permit, in which case, it is forfeited to the State and will be retained in the Landscape Administration Fund (to be applied for the purposes of that fund). (10) The relevant authority may, by notice in writing to the holder of a permit— (a) vary or revoke the permit; or (b) vary or revoke a condition of the permit, or impose a new condition. (11) A person who contravenes or fails to comply with a provision or condition of a permit under this section is guilty of an offence. Maximum penalty: $60 000. Expiation fee: $800. (12) In this section— (a) in relation to a Category 1 or Category 2 animal or plant—the Chief Executive; or (b) in relation to a Category 3 animal or plant—the regional landscape board for the relevant area. Subdivision 3—Related matters 198—Animal-proof fences If a court is exercising jurisdiction conferred on it under the Fences Act 1975, an apparently genuine document purporting to be a certificate of the Minister stating— (a) that— (i) a fence conforms, or a proposed fence would conform, with the prescribed requirements for an animal-proof fence; or (ii) fencing work has made, or proposed fencing work would make, a fence animal‑proof; and (b) that such a fence or such fencing work is necessary or desirable for the control of animals in the locality that are liable to be controlled under this Part, is admissible as proof that the nature of such fence or fencing work is adequate and appropriate in the circumstances. 199—Offence to interfere with certain fences (1) A person must not interfere with an animal‑proof fence except with the permission of the owner of the land on which the fence is situated. Maximum penalty: $5 000. Expiation fee: $250. (2) A court may, on the conviction of a person of an offence against subsection (1), order the person to pay compensation to the owner of the land on which the fence is situated. animal‑proof fence includes any gate or ramp pertaining to the fence. 200—Offence to leave gates open A person must not leave open a gate in an animal-proof fence except— (a) for so long as is reasonably necessary for passage through the opening; or (b) with the permission of the owner of land on which the fence is situated. Maximum penalty: $1 250. Expiation fee: $160. 201—Protection of certain vegetation and habitats (1) A person must, in taking measures for the control of animals or plants under this Part, take all reasonable steps to ensure— (a) that native vegetation is not cleared except in accordance with guidelines prepared by the Native Vegetation Council under section 25 of the Native Vegetation Act 1991; and (b) that damage to or destruction of other vegetation is kept to a minimum (unless the vegetation is subject to destruction or control under this Part). Maximum penalty: $25 000. (2) A person must, in taking measures for the control of animals or plants under this Part— (a) comply with any requirement— (i) set out in a landscapes affecting activities control policy; or (ii) prescribed by the regulations, with respect to the identification or reporting of any habitat or native animal of a specified class; and (b) comply with any requirement— (i) set out in a landscapes affecting activities control policy; or (ii) specified by a relevant authority in the manner prescribed by the regulations, with respect to the protection, preservation or relocation of any habitat or native animal of a specified class. Maximum penalty: $25 000.