Part 5—Clearance and enforcement
Division 1—Control of clearance
26—Offence of clearing native vegetation contrary to this Part
(1) A person must not clear native vegetation unless the clearance is in accordance with this Part.
Maximum penalty: A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $100 000, whichever is greater.
Expiation fee: $750.
(2) A person must not contravene or fail to comply with a condition attached to a consent granted under this Part.
Maximum penalty: A sum calculated at the prescribed rate for each hectare (or part of a hectare) of the land in relation to which the offence was committed or $100 000, whichever is greater.
Expiation fee: $750.
(2a) If a court convicts a person—
(a) of an offence against subsection (1); or
(b) of an offence against subsection (2) where the effect of the contravention of or failure to comply with the condition that constitutes the offence is that native vegetation has been cleared without the consent of the Council,
the Council must, within the prescribed period, initiate civil proceedings under Division 2 in order to require the offender to make good the breach of this Act unless such proceedings have already been commenced, or an order has already been made, under that Division in relation to the matter, or the conviction is overturned on appeal.
(3) In this section—
land in relation to which the offence was committed means—
(a) land on which the vegetation is or was growing or is or was situated; and
(b) land that has been, or will be, affected in any way (including by an increase in its value) by reason of the commission of the offence;
the prescribed period, in relation to the initiation of civil proceedings against an offender, means—
(a) 6 months after the time within which the offender may appeal against the relevant conviction; or
(b) if an appeal is commenced—6 months after—
(i) the appeal is dismissed, struck out or withdrawn; or
(ii) any questions raised by the appeal have been finally determined;
the prescribed rate means—
(a) the amount (if any) per hectare by which the land in relation to which the offence was committed has increased in value as a direct result of the commission of the offence; or
(b) $2 500,
whichever is the greater.
(4) In determining the amount by which the value of land has increased as the result of the commission of an offence under this section, no account may be taken of the possibility that the establishment of vegetation on the cleared land may be ordered under Division 2.
27—Clearance of native vegetation
(1) Subject to any other Act or law to the contrary—
(a) native vegetation may, subject to this section, be cleared with the consent of the Council given in accordance with section 29;
(b) native vegetation may, subject to subsection (5)(b), be cleared—
(i) if the vegetation is of a prescribed class; or
(ii) in prescribed circumstances;
(c) native vegetation may, subject to subsection (5)(c), be cleared without any other restriction under this Act if the clearance falls within the ambit of subsection (4a).
(2) Subject to subsection (3), the Council cannot give its consent to the clearance of native vegetation under subsection (1)(a) if the vegetation comprises or forms part of a stratum of native vegetation that is substantially intact (see section 3A).
(3) The Council may, despite subsection (2) but subject to the other requirements of this Division, give its consent to the harvesting of native vegetation if, in its opinion, the harvesting will not result in any lasting damage to the plants comprising the vegetation, lead to significant soil damage or erosion, or result in any long-term loss of biodiversity.
(4) The Council may give its consent under subsection (3) subject to such conditions (if any) as the Council thinks fit to impose.
(4a) The clearance of native vegetation falls within the ambit of this subsection if—
(a) the clearance occurs in the course of clearing vegetation by the process commonly known as a cold burn (being a cold burn conducted in accordance with any relevant guidelines adopted by the Council under section 25); or
(b) the clearance is authorised by the relevant Chief Officer under subsection (4b).
(4b) The relevant Chief Officer may authorise the clearance of native vegetation under this subsection if the Chief Officer considers—
(a) that the clearance is reasonably necessary and appropriate for the purpose of protecting the life, health or safety of any person from a serious risk of bushfire after taking into account any guidelines developed by the Council after consultation with the Chief Officer of SACFS and the Chief Officer of SAMFS; and
(b) that it is appropriate to proceed under this subsection rather than the other provisions of this Act due to the circumstances of the particular case.
(4c) A Chief Officer may—
(a) give an authorisation under subsection (4b) subject to such conditions (if any) as the Chief Officer thinks fit to impose; and
(b) vary or revoke an authorisation under subsection (4b) due to a change in circumstances.
(4d) A Chief Officer may only delegate a power under subsection (4b) or (4c) to a Deputy Chief Officer or Assistant Chief Officer of the relevant service.
(5) Native vegetation that is growing or is situated on land that is subject to a heritage agreement under this Act, a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act or a management agreement under section 25D cannot be cleared—
(a) under subsection (1)(a) unless the Minister has also given his or her consent to the clearance;
(b) under subsection (1)(b) unless a regulation prescribing a class of vegetation under paragraph (b)(i) or circumstances under paragraph (b)(ii) explicitly extends its operation to vegetation on land that is subject to such an agreement.
(6) If the Minister attaches conditions to his or her consent under subsection (5)(a), the Council's consent to the clearance will be taken to be subject to the same conditions, in addition to any other conditions imposed by the Council.
Chief Officer means a Chief Officer of SACFS or a Chief Officer of SAMFS (as the case requires) and includes a person for the time being acting in the relevant office;
fire‑control purposes—these are purposes associated with preventing or controlling the spread of fires or potential fires;
relevant Chief Officer, in relation to an authorisation under subsection (4b), means—
(a) if the relevant land is in a fire district established for the purposes of SAMFS—the Chief Officer of SAMFS;
(b) in any other case—the Chief Officer of SACFS;
SACFS means the South Australian Country Fire Service;
SAMFS means the South Australian Metropolitan Fire Service.
28—Application for consent
(1) Subject to subsection (2), the owner of land on which native vegetation is growing or is situated, or a person acting on his or her behalf, (but no other person) may apply for consent to clear the vegetation.
(2) Where the land is held from the Crown under a miscellaneous lease, an application for consent to clear vegetation can only be made by the Minister for Environment and Conservation.
(3) An application for consent—
(a) must be in a form approved by the Council;
(b) must be accompanied by—
(i) —
(A) if an environmental benefit required under this Act is to be satisfied by the application of a credit under section 25A—
• if the credit has been assigned in accordance with section 25B—a management agreement prepared under section 25D; and
• in any case—
• information that establishes that the applicant has been credited, in accordance with section 25A or 25B, with having achieved an environmental benefit of a particular value; and
• information that establishes that the environmental benefit the subject of the credit amounts, after allowing for the loss of the vegetation to be cleared, to a significant environmental benefit; or
(B) if an environmental benefit required under this Act has been, or is to be, achieved by an accredited third party provider in accordance with section 25C—
• a management agreement prepared under section 25D; and
• information that establishes that the environmental benefit achieved, or to be achieved, by the accredited third party provider will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or
(C) if an environmental benefit required under this Act is to be achieved in any other way—
• a native vegetation management plan prepared by the applicant in accordance with guidelines adopted by the Council under Part 4; and
• information that establishes that subsequent establishment, regeneration or maintenance of native vegetation (whether on the land after the proposed clearance or on other land) in accordance with the native vegetation management plan will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or
(D) information that establishes that it is not possible for the applicant to achieve a significant environmental benefit in the manner contemplated by subsubparagraph (C); and
(ii) in any case—
(A) the prescribed number of copies of a report relating to the proposed clearance prepared in a form approved by the Council; and
(B) such other information as the Council reasonably requires; and
(C) the prescribed fee (including the fee prescribed for the report referred to in subsubparagraph (A)).
(4) Where an applicant provides information referred to in subsection (3)(b)(i)(D), he or she may propose that he or she make a payment into the Fund to compensate for the fact that there will not be a significant environmental benefit associated with the proposed clearance.
(5) The report referred to in subsection (3)(b)(ii)(A) must be prepared by the agency or instrumentality of the Crown or other person or body specified by the regulations.
(6) On receipt of the fee prescribed for the report referred to in subsection (3)(b)(ii)(A), the Council (or a local council or other body or person acting under delegation from the Council) must pay the amount of the fee to the Minister who must apply the amount received towards the cost of administering this Act.
(7) The Council must ensure that a copy of the report referred to in subsection (3)(b)(ii)(A), and of any Assessment Report prepared by the Minister's department in response to the making of an application under this section, is available for inspection, without fee, during ordinary office hours at the principal office of the Council, and is also available in any other manner, or at any other place, determined by the Minister.
29—Provisions relating to consent
(1) Subject to this section, in deciding whether to consent to an application to clear native vegetation, the Council—
(a) must have regard to the principles of clearance of native vegetation so far as they are relevant to that decision; and
(b) must not make a decision that is seriously at variance with those principles.
(2) When determining an application to clear native vegetation in order to facilitate the management of other native vegetation, the Council must, in exercising its limited discretion under subsection (1), have regard to the applicant's desire to facilitate the management of that other vegetation.
(3) When determining an application to clear native vegetation that is growing or is situated on land that forms part of a property that is used for the business of primary production, the Council must, in exercising its limited discretion under subsection (1), have regard to the applicant's desire to operate the business as efficiently as possible.
(4) The Council may give its consent to clearance of native vegetation that is in contravention of subsection (1)(b) if—
(a) the vegetation comprises one or more isolated plants; and
(b) the applicant is engaged in the business of primary production; and
(c) in the opinion of the Council, the retention of that plant, or those plants, would put the applicant to unreasonable expense in carrying on that business or would result in an unreasonable reduction of potential income from that business.
(4a) The Council may give its consent to the clearance of native vegetation that is in contravention of subsection (1)(b) if—
(a) the Council has adopted guidelines under section 25 that apply in relation to the region where the native vegetation is situated (being guidelines envisaged under subsection (1)(c) of that section); and
(b) the Council is satisfied—
(i) that a significant environmental benefit, which outweighs the value of retaining the vegetation, is to be achieved through the imposition of conditions and the taking of other action by the applicant; and
(ii) that the particular circumstances justify the giving of consent.
(4b) The Council may give its consent to the clearance of native vegetation that is in contravention of subsection (1)(b) if the Council is satisfied that—
(i) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been achieved and credited to the applicant under section 25A, or assigned to the applicant under section 25B; or
(ii) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been, or is to be, achieved by an accredited third party provider in accordance with section 25C; or
(iii) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been, or is to be, achieved by or on behalf of the applicant, having regard to the combined value of—
(A) the value of any environmental benefit credited to the applicant under section 25A, or assigned to the applicant under section 25B; and
(B) the value of any environmental benefit that has been, or is to be, achieved by an accredited third party provider in accordance with section 25C; and
(C) the value of any environmental benefit to be achieved through the imposition of conditions and the taking of other action by the applicant; and
(b) that the particular circumstances justify the giving of consent.
(5) The Council must, before giving its consent, consult the regional landscape board for the landscape management region where the native vegetation is situated and have regard to the board's recommendations (if any) in relation to the application.
(6) Where native vegetation that is the subject of an application for the Council's consent to clear under this Division is on pastoral land, the Council must, before giving its consent, consult the Pastoral Board and have regard to the Board's recommendations (if any) in relation to the application.
(8) Where the Pastoral Board has been consulted by the Council under subsection (6), the board may request the owner of the land to submit to it a property plan under the Pastoral Land Management and Conservation Act 1989 and, until the plan has been submitted to it, the board may recommend to the Council that it refuse consent solely on the ground that the plan has not been submitted.
(9) Section 41(10) of the Pastoral Land Management and Conservation Act 1989 does not apply to, or in relation to, a property plan requested by the Pastoral Board under subsection (8).
(9a) If an application for the Council's consent relates to native vegetation 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 consents), the Council must, before giving its consent—
(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 application (including a direction that the application not be granted, or that if it is to be granted, then it be subject to conditions specified by the Minister).
(9b) If an application for the Council’s consent relates to native vegetation, other than mangroves, within the Adelaide Dolphin Sanctuary 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 consents), the Council must, before giving its consent, consult with and have regard to the views of the Minister for the Adelaide Dolphin Sanctuary.
(9c) If an application for the Council's consent relates to mangroves (Avicennia marina) within the Adelaide Dolphin Sanctuary, the Council must, before giving its consent—
(a) consult with the Minister for the Adelaide Dolphin Sanctuary; and
(b) comply with the Minister's directions (if any) in relation to the application (including a direction that the application not be granted, or that if it is to be granted, then it be subject to conditions specified by the Minister).
(10) In addition to the other requirements for consultation under this section—
(a) the Council must allow any person who desires to do so to make representations in writing to the Council, within the period prescribed by the regulations, in relation to the granting or refusal of consent to an application to clear native vegetation; and
(b) the Council may, as it thinks fit, allow a person to appear personally or by representative before it to be heard on whether the Council should or should not consent to an application to clear native vegetation.
(11) Subject to subsection (12), the Council may give its consent to clearance of native vegetation under this section if, and only if—
(i) it attaches to the consent a condition requiring the applicant to establish and manage native vegetation on land specified by the Council; and
(ii) the Council is satisfied that the establishment and management of vegetation in accordance with that condition will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or
(b) —
(i) it attaches to the consent a condition requiring the applicant to protect native vegetation growing or situated on land specified by the Council by erecting, improving or maintaining a fence or other barrier on the boundary of the land or on the boundary of land that includes the land to be protected to the specifications included in the condition by the Council so as to prevent livestock or other animals from entering the land; and
(ii) the Council is satisfied that the erection, improvement or maintenance of the fence or other barrier in accordance with that condition will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or
(c) —
(i) it attaches to the consent a condition requiring the applicant to enter into a heritage agreement under this Act with respect to specified native vegetation; and
(ii) the Council is satisfied that the management and protection of that vegetation in accordance with the heritage agreement will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or
(d) in a case where section 28(4) applies, it attaches to the consent a condition requiring the applicant to make a payment into the Fund of an amount considered by the Council to be sufficient to achieve a significant environmental benefit in the manner contemplated by section 21(6).
(12) A consent to clearance of native vegetation under this section may be unconditional if, and only if, the Council is satisfied that—
(a) the clearance would not result in any loss of biodiversity; and
(b) the attachment of a condition to the consent under subsection (11) would place an unreasonable burden on the applicant.
(12a) Subsections (11) and (12) do not apply in relation to a consent to which subsection (4b)(a)(i), (ii) or (iii) applies.
(12b) The Council must account for the application of any credited environmental benefit to a consent under this Division in accordance with the scheme prescribed by the regulations.
(13) Consent to undertake clearance under this Division remains in force for two years or for such longer period as the Council may fix at the time of granting consent or subsequently on application by a person who has the benefit of the consent.
(14) An applicant for consent under this Division may appear before the Council in support of the application and the Council must observe the rules of natural justice when considering and determining the application.
(16) Where the Council refuses an application in whole or in part or attaches conditions to its consent, it must provide the applicant with a written statement of the reasons for its decision.
(17) The provisions of this section also apply to circumstances where the Council is considering an application referred to the Council under the Planning, Development and Infrastructure Act 2016 as if the Council were considering an application for consent under this Act, subject to such modifications, additions or exclusions as may be necessary for the purpose.
29A—Avoidance of duplication of procedures etc
(1) The purpose of this section is to provide for the avoidance of unnecessary duplication of procedures and compliance requirements under the Commonwealth Act and this Act where the clearance of native vegetation requires consent under this Act and approval under the Commonwealth Act.
(2) Despite any other provision of this Act, the Council may—
(a) accept a Commonwealth Act document as an application for consent under section 28 if (subject to subsection (5)) it complies with the requirements of this Act; and
(b) accept the whole or part of a plan, report, statement, assessment or other document used, or to be used, for the purposes of the Commonwealth Act as a native vegetation management plan referred to in section 28(3)(b)(i)(C) if (subject to subsection (5)) the document has been prepared in compliance with this Act and complies with the requirements of this Act.
(3) To avoid doubt, where a controlled action under the Commonwealth Act comprises or includes the clearance of native vegetation, the Council may, when considering an application for consent to clear the native vegetation use information and other material provided to the Commonwealth Minister under the Commonwealth Act for the purpose of deciding whether to give his or her approval to the controlled action under that Act.
(4) Where a controlled action under the Commonwealth Act comprises or includes the clearance of native vegetation, the Council—
(a) must, if the Commonwealth Minister has given his or her approval to the controlled action, consider whether the conditions (if any) to be imposed on the consent should be consistent with the conditions (if any) attached to the Commonwealth Minister's approval under the Commonwealth Act;
(b) may impose a condition on the consent that requires compliance with all or some of the conditions attached to the Commonwealth Minister's approval under the Commonwealth Act.
(5) A document accepted under subsection (2)—
(a) may be in a form that does not comply with the requirements of this Act; and
(b) may include information or other material that is irrelevant for the purposes of this Act.
(6) Once a document is accepted under subsection (2) the document will not be invalid or ineffective for the purposes of this Act because a court, tribunal or other authority has decided that it is invalid or ineffective for the purposes of the Commonwealth Act.
assessment report means—
(a) an assessment report as defined in the Commonwealth Act by reference to section 84(3), 95, 100 or 105 of that Act; or
(b) a report under section 121 of the Commonwealth Act;
Commonwealth Act means the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth;
Commonwealth Act document means—
(a) a referral under section 68, 69 or 71 of the Commonwealth Act; or
(b) information given by a person to the Minister under the Commonwealth Act under section 86 of that Act; or
(c) information and invitation published by a proponent under section 93 of the Commonwealth Act; or
(d) guidelines prepared under section 97 or 102 of the Commonwealth Act; or
(e) a draft report prepared under section 98 of the Commonwealth Act; or
(f) a finalised report prepared under section 99 of the Commonwealth Act; or
(g) a draft statement prepared under section 103 of the Commonwealth Act; or
(h) a finalised statement prepared under section 104 of the Commonwealth Act; or
(i) an assessment report.
30—Conditions of consent
(1) A consent under this Division to the clearance of native vegetation is subject to such conditions (if any) as the Council thinks fit to impose.
(2) Without limiting subsection (1), consent may be subject to one or more of the following conditions:
(a) a condition requiring the applicant to—
(i) establish vegetation consisting of a specified number of plants of a specified species on specified land; and
(ii) nurture, protect and maintain the plants until they are fully established or for such period as the Council specifies;
(b) a condition requiring the applicant to protect native vegetation growing or situated on specified land;
(c) a condition restricting the purposes for which land referred to in a condition under paragraph (a)(i) or (b) can be used;
(d) a condition requiring the applicant to destroy plants of a non endemic species specified by the Council growing on land specified by the Council;
(e) a condition that the applicant enter into a heritage agreement with the Minister under this Act in the terms specified by the Council for the management of specified native vegetation;
(f) a condition requiring that a copy of the consent issued by the Council be kept in such manner, and in any place, specified by the Council.
(3) Conditions imposed on consent to clear native vegetation are binding on, and enforceable against—
(a) the applicant for the consent; and
(b) all owners and subsequent owners of the land to be cleared and any other land to which a condition relates; and
(c) an occupier of the land to be cleared and any other person who acquires the benefit of the consent.
(4) The Council must inform the Registrar-General in writing of all conditions imposed under this section that relate to land (including conditions under subsection (2)(c)) and must provide the Registrar-General with such further information as the Registrar-General requires to comply with subsection (5).
(5) The Registrar-General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land.
(6) The Registrar-General must, on the application of the Council after the variation or revocation of a condition under this section, vary or cancel a note under subsection (5) (but must otherwise ensure that the note is not removed once made).
30A—Marking or tagging of cleared vegetation
(1) The regulations may establish a scheme for the marking or tagging of any cleared native vegetation of a prescribed kind.
(2) A scheme established under subsection (1) may—
(a) extend to persons who are in possession of native vegetation after it has been cleared;
(b) make provision for the marking of cleared native vegetation in a manner determined by the Council, or for the use of tags issued by the Council;
(c) prescribe fines (not exceeding $10 000) for contravention of a regulation;
(d) make any other provision that may be necessary or expedient for the purposes of establishing the scheme envisaged by subsection (1).
Division 2—Civil enforcement proceedings
31A—Application to ERD Court for enforcement
(1) The following persons may apply to the ERD Court for an order to remedy or restrain a breach of this Act:
(a) the Council; or
(b) a person who owns or who has any other legal or equitable interest in land that has been, or will be, affected by the breach; or
(c) in the case of a contravention of, or failure to comply with, a heritage agreement—a party to the agreement.
(2) Proceedings under this section may be brought in a representative capacity with the consent of all persons on whose behalf they are to be brought.
(3) If proceedings under this section are brought by a person other than the Council—
(a) the applicant must serve a copy of the application on the Council within three days after filing the application with the Court; and
(b) the Court must, on application by the Council, join the Council as a party to the proceedings.
(4) An application may be made in the absence of the respondent and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant the applicant permission to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.
(5) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.
(6) If—
(a) after hearing—
(i) the applicant and the respondent; and
(ii) any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,
the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act; or
(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise one or more of the following powers:
(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d) require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court, taking into account the nature and extent of the original vegetation;
(e) require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for, or towards, those costs or expenses;
(f) require the respondent to pay into the Fund an amount, determined by the Court to be appropriate in the circumstances, on account of the financial benefit that the respondent has gained, or can reasonably be expected to gain, by committing the breach;
(g) require the respondent to pay into the Fund an amount, determined by the Court, in the nature of exemplary damages (and this amount may be in addition to any amount ordered to be paid under paragraph (f));
(h) require the respondent to take specified action to publicise—
(i) the breach of this Act; and
(ii) the environmental and other consequences flowing from the breach; and
(iii) the other requirements of the order made against the respondent;
(i) require the respondent to refrain from an act or course of action, or to undertake an act or course of action, to ensure that the respondent does not gain an ongoing benefit from the breach.
(7) In assessing damages under subsection (6)(g), the Court must have regard to—
(a) damage to the environment caused by the breach of this Act; and
(b) the detriment to the public interest resulting from the breach; and
(c) any benefit (including financial benefit) that the respondent sought to gain by committing the breach; and
(d) any other matter it considers relevant.
(8) The power conferred by subsection (6)(f) or (g) can only be exercised by a Judge of the Court.
(9) The Council, and any person with a legal or equitable interest in land to which an application under this section relates, is entitled to appear and be heard in proceedings based on the application before a final order is made.
(10) The Court may make such order in relation to costs of proceedings under this section as it thinks just and reasonable.
(11) In this section—
breach of this Act includes a threatened contravention of, or failure to comply with, this Act or a heritage agreement.
31B—Order where native vegetation has been cleared
(1) Subject to subsection (6)(d) or (7), where the ERD Court is satisfied on the balance of probabilities that the respondent—
(a) has cleared native vegetation in contravention of this Act; or
(b) has cleared native vegetation pursuant to the Council's consent but has not complied with a condition of a kind referred to in section 30(2) attached to the consent,
the Court must make an order against the respondent under section 31A(6)(d).
(2) The order under section 31A(6)(d) must direct the respondent to—
(a) remove the buildings, works or vegetation (if any) that have been erected, undertaken or planted on the land since the clearance occurred; and
(b) establish vegetation consisting of plants of a species specified in the order in such numbers and on such parts of the cleared land as is specified in the order; and
(c) nurture, protect and maintain the plants until they are fully established or for such period as is specified in the order.
(3) The order under section 31A(6)(d) may—
(a) where part of the original vegetation is still growing or situated on the land—direct that it be removed so that the new vegetation can be established on the land;
(b) include such ancillary directions or orders as the Court thinks fit.
(4) Where the respondent is not the owner or occupier of the land, the order authorises him or her (or a person authorised by him or her) to—
(a) enter the land with such materials and equipment as are reasonably necessary to comply with the order; and
(b) to enter and cross any other land specified in the order with the materials and equipment referred to in paragraph (a) for the purpose of gaining access to the cleared land.
(5) An owner or occupier of land or any other person who hinders or obstructs the respondent (or a person authorised by the respondent) in carrying out the directions of an order under this section or entering and crossing land under subsection (4) is guilty of an offence.
Maximum penalty: $10 000.
(6) If the ERD Court is satisfied on the balance of probabilities that—
(a) the owner or occupier of the cleared land did not know and could not reasonably have been expected to know of the circumstances referred to in subsection (1) requiring the making of an order under section 31A(6)(d); and
(b) compliance with an order under section 31A(6)(d) will cause financial loss to that person,
the Court may—
(c) assess the amount of the financial loss and order the respondent to pay that amount to the owner or occupier of the land; or
(d) refuse to make the order or make the order in a modified form.
(7) If the Court is satisfied that compliance with any order under section 31A(6)(d) would not be reasonably practicable, it may refuse to make the order.
(8) However, the Court cannot take into account financial grounds when making an assessment under subsection (7) unless the Court is satisfied that it would be unduly harsh not to do so.
(9) The Court must include in the order a requirement that a copy of the order be served on the Registrar-General and that the Registrar-General note the order against the relevant certificate or other instrument of title or, in the case of land not under the Real Property Act 1886, against the land (and the Registrar-General must, on service of the order, make the note and then must not remove the note except pursuant to an order of the Court).
(10) If, in the opinion of the Court, it should refuse under subsection (6)(d) or (7) to make an order under section 31A(6)(d), the Court may make an order against the respondent requiring the establishment of vegetation in accordance with the provisions of this section on some other land owned by the respondent.
31C—Interim order
(1) If, on an application under this Division or before the determination of the proceedings commenced by an application under this Division, the ERD Court is satisfied that, in order to protect native vegetation from clearance or to preserve the rights or interests of parties to the proceedings, or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order.
(2) An interim order—
(a) may be made on an application in the absence of the respondent; and
(b) may be made whether or not the application has been referred to a conference under section 31A(5); and
(c) will be made subject to such conditions as the Court thinks fit; and
(d) will not (as such) operate after the proceedings in which it is made are finally determined.
31D—Enforcement of orders
(1) A person who contravenes or fails to comply with an order under this Division is, in addition to liability for contempt of the order, guilty of an offence.
Maximum penalty: $100 000.
(2) Where the ERD Court makes an order under section 31A(6)(d) and the respondent fails to comply with the order within the period specified by the Court, the Council may cause any work contemplated by the order to be carried out, and may recover the costs and expenses of that work, as a debt, from the respondent.
(3) Section 31B(4) and (5) apply to, and in relation to, the Council when acting under subsection (2) as though it were the respondent.
(4) Where an amount is recoverable from a person by the Council under subsection (2)—
(a) the Council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and
(b) the amount together with any interest so payable is, until paid, a first charge in favour of the Council on all land owned by the person.
31E—Enforcement notices
(1) If an authorised officer who has been expressly authorised by the Minister to issue directions under this section has reasonable grounds on which to believe that a person has breached this Act, or is likely to breach this Act, the authorised officer may do such of the following as the officer considers necessary or appropriate in the circumstances:
(a) direct the person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes, or would constitute, the breach;
(b) if, in the opinion of the authorised officer, a breach has occurred and the breach is a minor breach—direct the person to make good the breach in a manner, and within a period, specified by the authorised officer;
(c) take such urgent action as is required or is, in the opinion of the authorised officer, desirable because of any situation arising from the breach or likely breach (as the case may be).
(2) A direction under subsection (1) must be given by notice in writing.
(3) A notice under subsection (2) must identify the authorised officer issuing the direction.
(4) Subject to section 31EA, if a person fails to comply with a direction under subsection (1)(b) within the time specified in the notice, the Council may cause the necessary action to be taken.
(5) The costs and expenses incurred by the Council under subsection (4) may be recovered by the Council as a debt due from the person whose failure gave rise to the action.
(6) Where an amount is recoverable from a person by the Council under this section—
(a) the Council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the rate prescribed by regulation on the amount unpaid and on any unpaid interest; and
(b) the amount together with any interest so payable is, until paid, a first charge in favour of the Council on all land owned by the person.
(7) Subject to any order of the ERD Court to the contrary, the operation of a direction is not suspended pending the determination of an appeal.
(8) A person who contravenes or fails to comply with a direction under this section is guilty of an offence.
Maximum penalty: $10 000.
(9) A direction cannot be given under this section in relation to a breach if it appears that the breach occurred more than 2 years before the direction is given.
31EA—Substituted direction where compliance with enforcement notice not reasonably practicable
(1) If—
(a) an authorised officer gives a direction to a person under section 31E(1)(b); and
(b) it is not reasonably practicable for the person to comply with the direction,
the person may apply to the Council for a substituted direction under this section.
(2) An application for an order under this section must be made in a manner and form determined by the Council.
(3) The Council may, if satisfied that compliance with the direction under section 31E(1)(b) is not reasonably practicable, revoke the direction and instead direct the person—
(a) to take such action as may appear appropriate to the Council (whether on the person's land or otherwise), taking into account the nature and extent of the alleged breach forming the basis for the original direction; or
(b) to pay into the Fund an amount, determined by the Council to be appropriate in the circumstances, on account of any benefit that the person has gained, or can reasonably be expected to gain, by allegedly committing the breach; or
(c) to refrain from an act or course of action, or to undertake an act or course of action, to ensure that the person does not gain an ongoing benefit from the alleged breach.
(4) A direction under this section—
(a) must specify the period within which the direction must be complied with;
(b) must comply with any other requirement set out in the regulations.
(5) Without limiting this section, section 31E (other than subsection (9)) applies to a direction under this section as if it were a direction under section 31E(1)(b).
31F—Miscellaneous provisions
(1) The ERD Court may order an applicant in proceedings under section 31A—
(a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; and
(b) to give an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (2).
(2) If on an application under section 31A the ERD Court is satisfied—
(a) that the respondent has not breached this Act; and
(b) that the respondent has suffered loss or damage as a result of the actions of the applicant; and
(c) that in the circumstances it is appropriate to make an order under this provision,
the Court may, on the application of the respondent (and in addition to any order as to costs), require the applicant to pay to the respondent an amount, determined by the Court, to compensate the respondent for the loss or damage which the respondent has suffered.
(3) A person who fails to comply with an order of the ERD Court under this Division commits a contempt of Court.
(4) The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under subsection (1) or (2).
(5) The ERD Court may, on application under this subsection by a person to whom a notice has been given under section 31D(4)(a) or 31E(6)(a), extend the period that has been fixed by the Council for the purposes of the notice (and the relevant order of the Court under this subsection will then have effect according to its terms).
32—Appeals
(1) Subject to the rules of the Supreme Court, an appeal lies against—
(a) an order of the ERD Court made in the exercise of the jurisdiction conferred by this Division; or
(b) a decision by the ERD Court not to make an order under this Division,
to the Supreme Court.
(2) An appeal under this section must be instituted within 60 days of the date of the decision or order subject to appeal, or such longer period as may be allowed by the Supreme Court.
33—Commencement of proceedings
Proceedings under this Division must be commenced—
(a) if the proceedings relate to an offence under this Act which the respondent has expiated or of which the respondent has been convicted or found guilty—within 6 months after the date on which the respondent so expiated, or was convicted or found guilty of, the offence (as the case requires); or
(b) in any other case—within 5 years after the date of the alleged contravention of, or failure to comply with, a provision of this Act.
Division 3—Authorised officers
33A—Appointment of authorised officers
(1) The Minister may appoint an officer or employee of the Crown or a local council to be an authorised officer for the purposes of this Act.
(2) An appointment of an authorised officer—
(a) must be in writing; and
(c) may be subject to conditions; and
(d) may be in respect of the whole State or any specified part of the State.
(3) Each authorised officer must be issued with an identity card that—
(a) includes a photograph of the authorised officer.
(4) The identity card must be issued as soon as is reasonably practicable after the appointment is made (but an authorised officer is not prevented from exercising powers under this Act just because an identity card is yet to be issued).
(5) An authorised officer must, if requested to do so, produce evidence of his or her appointment by providing a copy of his or her notice of appointment, or by showing his or her identity card for inspection, before exercising the powers of an authorised officer under this Act in relation to any person.
(6) The Minister may, at any time, vary or revoke an appointment which he or she has made, or vary or revoke a condition of an appointment or impose a further condition in relation to an appointment.
33B—Powers of authorised officers
(1) Subject to this Division, an authorised officer may—
(a) enter and inspect any land for any reasonable purpose connected with the administration or enforcement of this Act; and
(b) give directions with respect to the stopping or movement of a vehicle that—
(i) has been used in, or is suspected by the authorised officer of having been used in, the clearance of native vegetation; or
(ii) is carrying a plant, or any part of a plant, comprising native vegetation,
as reasonably required in connection with the administration or enforcement of this Act; and
(c) take samples of any plant or any part of any plant from any land, for identification and analysis as reasonably required in connection with the administration or enforcement of this Act; and
(d) with the authority of a warrant issued under section 33C require any person to produce specified documents or documents of a specified kind, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act; and
(e) with the authority of a warrant issued under section 33C examine, copy or take extracts from any documents so produced or require a person to provide a copy of any such document or information; and
(f) take photographs or films or make audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act; and
(g) dig up any land by the use of hand-held equipment for the purpose of taking samples; and
(h) with the authority of a warrant issued under section 33C, to the extent to which it is reasonably required, take mechanical equipment on to any land and dig up the land, or any part of it, for the purposes of taking samples that the authorised officer reasonably suspects may constitute evidence of a breach of this Act;
(i) in addition to the powers under a preceding paragraph, seize and retain anything that the authorised officer reasonably suspects may constitute evidence of a breach of this Act; and
(j) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a breach of this Act to state the person's full name and usual place of residence; and
(k) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters; and
(l) give any directions reasonably required in connection with the exercise of a power conferred by any of the paragraphs of this subsection or otherwise in connection with the administration or enforcement of this Act.
(2) Without limiting subsection (1)(a), an authorised officer may enter and inspect any land for the purpose of determining whether a heritage agreement entered into under this Act or entered into in compliance with a condition of consent to clear native vegetation under the repealed Act is being, or has been, complied with.
(3) An authorised officer must not exercise a power conferred by subsection (1)(a) or (2) in respect of residential premises.
(4) Where an authorised officer enters land and takes samples of any plant or any part of any plant for identification and analysis, the authorised officer must take reasonable steps to provide the owner of land with a reasonable amount of information about his or her actions.
(5) Where an authorised officer enters land and takes photographs or films or makes audio, video or other recordings, the authorised officer must, as soon as reasonably practicable after entering the land—
(a) serve notice on the owner or occupier of the land informing him or her of the date on which the authorised officer entered the land; and
(b) provide the owner or occupier with a copy of the photographs, films, audio, video or other recordings (if any) taken or made by the authorised officer when on the land.
(6) A copy provided under subsection (5)(b) must be in an electronic form unless the Minister authorises it to be provided in some other form.
(7) Where an authorised officer digs up any land under subsection (1), the authorised officer must, after taking such steps as the authorised officer thinks fit in the exercise of powers under that subsection, insofar as is reasonably practicable, take steps to ensure that the land is restored to such state as is reasonable in the circumstances.
(8) Before an authorised officer requires a person to answer questions under subsection (1)(k), the authorised officer must inform the person of his or her right to decline to answer any question that might tend to incriminate the person or to make the person liable to a criminal penalty.
(9) Where—
(a) a person whose native language is not English is suspected of having committed an offence against this Act; and
(b) the person is not reasonably fluent in English,
the following provisions apply:
(c) the person is entitled to be assisted by an interpreter during any questioning conducted by an authorised officer in the course of an investigation of the suspected offence;
(d) where it appears that the person may be entitled to be assisted by an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until the person has been informed of the right to an interpreter;
(e) if the person requests the assistance of an interpreter, an authorised officer must not proceed with any questioning, or further questioning, until an interpreter is present.
(10) In the exercise of powers under this Act an authorised officer may be assisted by such persons as he or she considers necessary in the circumstances.
(11) An authorised officer may require an occupier of any land or a person apparently in charge of any plant, equipment, vehicle or other thing to give to the authorised officer or a person assisting the authorised officer such assistance as is reasonably required by the authorised officer for the effective exercise of powers conferred by this Act.
(12) Where a person gives assistance to an authorised officer as required under subsection (11), the person must, if he or she so requires, be reimbursed by the authorised officer or the Minister for any reasonable costs and expenses incurred in giving the assistance.
33C—Issue of warrants
(1) Where, on the application of an authorised officer, a magistrate is satisfied that there are reasonable grounds to believe that the inspection of documents may provide information relevant to the administration or enforcement of this Act, the magistrate may issue a warrant authorising an authorised officer—
(a) to require a specified person to produce documents under section 33B(1)(d); and
(b) to examine, copy and take extracts from those documents or to require a person to provide a copy of any of those documents under section 33B(1)(e).
(2) Where, on the application of an authorised officer, a magistrate is satisfied that there are reasonable grounds to believe that a person may have committed a breach of this Act, the magistrate may issue a warrant authorising an authorised officer to take action under section 33B(1)(h).
(3) An application for the issue of a warrant may be made either personally or by telephone.
(4) The grounds of an application for a warrant must be verified by affidavit.
(5) An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally.
(6) Where an application for the issue of a warrant is made by telephone, the following provisions apply:
(a) the applicant must inform the magistrate of his or her name and identify himself or herself as an authorised officer, and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an authorised officer; and
(b) the applicant must inform the magistrate of the grounds on which he or she seeks the issue of the warrant; and
(c) if it appears to the magistrate from the information furnished by the applicant that there are proper grounds for the issue of a warrant, the magistrate must inform the applicant of the facts on which he or she relies as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; and
(d) if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant, noting on the warrant the facts on which he or she relies as grounds for the issue of the warrant; and
(e) the warrant will be taken to have been issued, and will come into force, when signed by the magistrate; and
(f) the magistrate must inform the applicant of the terms of the warrant; and
(g) the applicant must, as soon as practicable after the issue of the warrant, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c).
(7) A magistrate by whom a warrant is issued must file the warrant, or a copy of the warrant, and the affidavit verifying the grounds on which the application for the warrant was made, in the ERD Court.
(8) An authorised officer who executes a warrant must, as soon as practicable after execution of the warrant—
(a) prepare a notice in the prescribed form containing—
(i) his or her own name and a statement that he or she is an authorised officer under this Act; and
(ii) the name of the magistrate who issued the warrant and the date and time of its issue; and
(iii) a description of the authority conferred by the warrant; and
(b) give the notice to the person affected by the warrant.
(9) A warrant, if not executed at the expiration of one month from the date of its issue, then expires.
33D—Provisions relating to seizure
(1) Where a thing has been seized under this Division the following provisions apply:
(a) the thing must be held pending proceedings for an offence against this Act related to the thing seized, unless the Minister, on application, authorises its release to the person from whom it was seized, or to any person who had legal title to it at the time of its seizure, subject to such conditions as the Minister thinks fit (including conditions as to the giving of security for satisfaction of an order under paragraph (b)(ii));
(b) where proceedings for an offence against this Act relating to the thing are instituted within the prescribed period after its seizure and the defendant is convicted or found guilty of the offence, the court may—
(i) order that it be forfeited to the Minister; or
(ii) where it has been released pursuant to paragraph (a)—order that it be forfeited to the Minister or that the person to whom it was released or the defendant pay to the Minister an amount equal to its market value at the time of its seizure, as the court thinks fit;
(c) where—
(i) proceedings are not instituted for an offence against this Act relating to the thing within the prescribed period after its seizure; or
(ii) proceedings have been so instituted and—
(A) the defendant is found not guilty of the offence; or
(B) the defendant is convicted or found guilty of the offence but no order for forfeiture is made under paragraph (b),
then the person from whom the thing was seized, or any person with legal title to it, is entitled to recover from the Minister (if necessary, by action in a court of competent jurisdiction) the thing itself, or if it has been damaged or destroyed, compensation of an amount equal to its market value at the time of its seizure.
(2) In subsection (1)—
the prescribed period means 12 months or such longer period as the ERD Court may, on application by the Minister, allow.
33E—Offence to hinder etc authorised officers
(1) A person who—
(a) hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or
(b) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or
(c) refuses or fails to comply with a requirement or direction of an authorised officer under this Division; or
(d) when required by an authorised officer under this Division to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or
(e) falsely represents, by words or conduct, that he or she is an authorised officer,
is guilty of an offence.
(2) A person who assaults an authorised officer, or a person assisting an authorised officer in the exercise of powers under this Act, is guilty of an offence.
Maximum penalty: $10 000 or two years imprisonment or both.
(3) Despite subsection (1)(d), a person is not obliged to answer a question under this Division if to do so might tend to incriminate the person or make the person liable to a criminal penalty.
33EA—Offences by authorised officers etc
An authorised officer, or a person assisting an authorised officer, who—
(a) addresses offensive language to any other person; or
(b) without lawful authority, hinders or obstructs or uses or threatens to use force in relation to any other person,
is guilty of an offence.