Part 6Miscellaneous

Part 6—Miscellaneous 33J—Constitution and criminal jurisdiction of ERD Court (1) Subject to this Act, the following provisions apply in respect of the constitution of the ERD Court when exercising jurisdiction under this Act: (a) the Court may be constituted in a manner provided by the Environment, Resources and Development Court Act 1993 or may, if the Senior Judge of the Court so determines, be constituted of— (i) in relation to proceedings for an offence against this Act—a magistrate and 1 commissioner; or (ii) in any case—a Judge and 1 commissioner; (b) the provisions of the Environment, Resources and Development Court Act 1993 apply in relation to the Court constituted of a Judge and 1 commissioner, or a magistrate and 1 commissioner, in the same way as in relation to a full bench of the Court; (c) the Court may not be constituted of or include a commissioner unless— (i) in a case where only 1 commissioner is to sit (whether alone or with another member or members of the Court)—the commissioner; or (ii) in any other case—at least 1 commissioner, is a commissioner who has been specifically designated by the Governor as a person who has wide practical knowledge of, and experience in, the preservation and management of native vegetation. (2) Offences constituted by this Act lie within the criminal jurisdiction of the ERD Court. 33K—Applications during criminal proceedings (1) If, during the course of criminal proceedings before a court in respect of an offence against this Act, the prosecutor applies for an order under this Act relating to the offence, the court must deal with the application during the course of the criminal proceedings unless satisfied by the defendant that to do so would not be appropriate in the circumstances. (2) If an application for an order under this Act is made to a court before which a person was convicted of an offence against this Act— (a) the application may be dealt with by the court; and (b) any power in relation to the relevant order may be exercised by the court, whether or not the court is constituted in the same way as when the person was convicted of the offence. 34—Evidentiary (1) An allegation in enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act that vegetation is, or was, comprised of a plant or plants of a species indigenous to South Australia must be accepted as proved in the absence of proof to the contrary. (2) Where in enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act it is proved that vegetation has been cleared, it must be presumed in the absence of proof to the contrary that the vegetation was cleared by the owner and occupier of the land on which it is or was growing or is or was situated. (3) It must be presumed in enforcement proceedings under Part 5 Division 2 and in proceedings for an offence against this Act, in the absence of proof to the contrary, that vegetation to which the proceedings relate was not intentionally sown or planted by a person. (3a) Where in enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act it appears that an alleged fact has been determined by the use of an electronic, sonic, optical, mechanical or other device by an authorised officer or person assisting an authorised officer, the alleged fact must be accepted as proved in the absence of proof to the contrary. (4) In any legal proceedings, an apparently genuine document appearing to be a copy of a heritage agreement certified by the Minister, is, in the absence of proof to the contrary, proof of the agreement and its terms. (5) In enforcement proceedings under Part 5 Division 2 or in proceedings for an offence against this Act, a document produced by the prosecution or plaintiff (as the case requires) and purporting to certify that a remotely sensed image specified in the document— (a) was captured by a specified device and is accurate to the extent indicated in the document; and (b) was captured at a specified time on a specified date; and (c) is an image of a specified place, constitutes, in the absence of proof to the contrary, proof of the facts so certified. (6) For the purposes of this section, a reference to an electronic, sonic, optical, mechanical or other device includes a reference to any software used by, or in relation to, such a device. (7) In any legal proceedings, an apparently genuine document appearing to be a copy of a management agreement under section 25D certified by the Minister is, in the absence of proof to the contrary, proof of the agreement and its terms. image includes— (a) a copy of an image; and (b) data from which an image can be produced; remotely sensed image means— (a) an image captured by a device (whether a camera or otherwise) mounted on or in a satellite or aircraft; and (b) any other image declared by the regulations to be included in the ambit of this definition. 35—Proceedings for an offence (1) Proceedings for an offence against this Act must be commenced within 5 years after the date on which the offence is alleged to have been committed. (4) A penalty payable in respect of an offence against this Act must be paid into the Fund. (5) An authorised officer cannot issue an expiation notice to a person alleged to have committed an offence against this Act unless the authorised officer has referred the matter to the Council and the Council has specifically authorised the issuing of the notice. 36—Assessment of costs and expenses For the purposes of this Act, the costs and expenses that have been or would be incurred by the Council in taking any action are to be assessed by reference to the reasonable costs and expenses that would have been or would be incurred in having the action taken by independent contractors engaged for that purpose. 38—Vicarious liability For the purposes of this Act, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency. 39—Offences by bodies corporate Where a body corporate is guilty of an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence. 40—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 40A—Register of applications (1) The Council must maintain a public register of applications for consent to clear vegetation received by the Council under Part 5. (2) The register must include— (a) the name and address of the applicant; and (b) the date of the application and the date on which the application was received by the Council; and (c) a description of the application; and (d) the location and a description of the land to which the application relates; and (e) when it is made, the decision made by the Council in relation to the application; and (f) any other information required by the regulations. (3) The register is to be made available for inspection, without fee, during ordinary office hours at the principal office of the Council. (4) The Council must ensure that the register can be inspected at a website determined by the Council (but is not required to have available for inspection at the website information relating to an application received by the Council before the commencement of this section unless the Council has that information in the form of electronic data). 40B—Ministerial power of delegation (1) The Minister may delegate to a body or person (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the Minister to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 41—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may make provision for or relating to— (a) exemptions (conditional or unconditional) from specified provisions of this Act; and (b) fees in respect of any matter under this Act and their payment, recovery or waiver; and (c) fines, not exceeding $10 000, for offences against the regulations; and (d) expiation fees, not exceeding $750, for offences against this Act or the regulations; and (e) facilitation of proof of the commission of offences against the regulations. (3) The regulations may vary Schedule 1. (4) The regulations may— (a) be of general application or vary in their application according to prescribed factors; (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister, the Council or other specified person or body; (c) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time. (5) If a code, standard or other document is referred to or incorporated in the regulations— (a) a copy of the code, standard or other document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and (b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.