1West Beach Recreation Reserve Act 1987

South Australia West Beach Recreation Reserve Act 1987 An Act to provide for the administration and development of the West Beach Recreation Reserve; and for other purposes.

Contents Part 1—Preliminary 1 Short title 4 Interpretation Part 2—The West Beach Trust Division 1—Constitution of the Trust 5 The West Beach Trust 6 Trust subject to control of Minister 7 Membership of Trust 8 Conditions of membership 9 Allowances and expenses 11 Procedure at meetings of the Trust 12 Validity of acts of Trust Division 2—Functions and powers of the Trust 13 General functions and powers of Trust 14 Control of foreshore west of Reserve Division 2A—Performance and scope of Trust's operations 14A General performance principles 14B Trust's charter 14C Performance agreements 14D Business plans Division 3—Staff of the Trust 15 Officers and employees Division 4—Financial provisions 16 Dealings with money and borrowings 17 Accounts and audit 18 Power to advance money, to act as guarantor etc Part 3—Miscellaneous 19 Report 20 Ministerial approvals 21 Tax and other liabilities of Trust 22 Dividends 23 Register of leases and licences 23A Damage etc to property of the Trust 24 Power to resume land in reserve 25 Regulations Schedule—West Beach Recreation Reserve Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the West Beach Recreation Reserve Act 1987. 4—Interpretation In this section, unless the contrary intention appears— land includes land covered (or covered from time to time) by water; Reserve means— (a) land owned by, or vested in, the Trust; and (b) land occupied by the Trust under a lease, licence or other arrangement; and (c) land of which the Trust has the care, control and management; Trust means the West Beach Trust continued under this Act. Part 2—The West Beach Trust Division 1—Constitution of the Trust 5—The West Beach Trust (1) The West Beach Trust continues in existence. (2) The Trust is a body corporate. (3) The Trust has full juristic capacity to exercise any powers that are by their nature capable of being exercised by a body corporate. (4) An apparently genuine document that appears to bear the common seal of the Trust and to be signed by any two or more of its members or by any one of its members and the chief executive officer of the Trust will be taken, in any legal proceedings, in the absence of proof to the contrary, to be duly executed by the Trust. 6—Trust subject to control of Minister The Trust is subject to the control and direction of the Minister. 7—Membership of Trust (1) The Trust consists of seven members appointed by the Minister, of whom— (a) one must be a person from a panel of three persons nominated by the City of Charles Sturt; and (b) one must be a person from a panel of three persons nominated by the City of Holdfast Bay; and (c) one must be a person from a panel of three persons nominated by the City of West Torrens; and (d) the remainder will be selected by the Minister. (2) For the purposes of subsection (1)— (a) any person nominated by a council, or otherwise selected by the Minister for appointment, must have qualifications or experience in— (i) business or management; or (ii) tourism; or (iii) accounting and financial; or (iv) environmental protection and management; or (v) the provision or operation of regional recreation facilities; or (vi) government; and (b) a council, in constituting a panel— (i) must nominate at least one woman and one man; and (ii) must give reasonable consideration to nominating persons who provide a range of the qualifications and experience referred to above; and (iii) need not nominate persons who are members or employees of the council. (3) At least two members of the Trust must be women and at least two must be men. (4) The Minister will appoint a member of the Trust to be its presiding officer and another to be its deputy presiding officer. (5) The Minister should, before making an appointment under subsection (1), consult with persons who, in the opinion of the Minister, have an interest in the matter. 8—Conditions of membership (1) A member of the Trust will be appointed for a term, not exceeding four years, specified in the instrument of appointment and will, at the expiration of a period of appointment, be eligible for reappointment. (2) The Minister may remove a member of the Trust from office— (a) for breach of, or non-compliance with, a condition of appointment; or (b) for misconduct; or (c) for failure or incapacity to carry out official duties satisfactorily; or (d) if serious irregularities have occurred in the conduct of the Trust's affairs or the Trust has failed to carry out its functions satisfactorily and the Trust's membership should, in the opinion of the Minister, be reconstituted for that reason. (5) Subject to subsection (6), the office of a member of the Trust becomes vacant if— (a) the member dies; or (b) the member's term of office expires; or (c) the member resigns by written notice addressed to the Minister; or (d) the member ceases to reside in South Australia; or (e) the member is absent without permission of the Trust from three consecutive meetings of the Trust and is declared by resolution of the Trust to have forfeited his or her office; or (f) the member is removed by the Minister under subsection (2). (6) A member of the Trust whose term of office expires may continue to act as a member until he or she is reappointed or a successor is appointed (as the case may be). 9—Allowances and expenses A member of the Trust is entitled to receive such allowances and expenses as the Governor may from time to time determine. 11—Procedure at meetings of the Trust (1) The presiding officer or, in his or her absence, the deputy presiding officer will preside at a meeting of the Trust and, in the absence of both, a member chosen by the members present at the meeting will preside at that meeting. (2) Four members of the Trust constitute a quorum of the Trust and no business will be transacted at a meeting of the Trust unless a quorum is present. (3) A decision carried by a majority of the votes of the members present at a meeting of the Trust will be a decision of the Trust. (4) Each member present at a meeting is entitled to one vote on any matter arising for decision at that meeting. (4a) A conference by telephone or other electronic means between members of the Trust will, for the purposes of this section, be taken to be a meeting of the Trust at which the participating members are present if— (a) notice of the meeting is given to all members of the Trust in the manner determined by the Trust for the purpose; and (b) each participating member is capable of communicating with every other participating member during the conference. (4b) A proposed resolution of the Trust becomes a valid decision of the Trust despite the fact that it is not voted on at a meeting of the Trust if— (a) notice of the proposed resolution is given to all members in accordance with procedures determined by the Trust; and (b) a majority of members express concurrence in the proposed resolution by letter or by facsimile transmission or other electronically transmitted written communication setting out the terms of the resolution. (5) The Trust must cause accurate minutes to be kept of its proceedings at meetings. (6) Subject to this Act, the business of the Trust will be conducted in such manner as the Trust may determine. 12—Validity of acts of Trust (1) An act or proceeding of the Trust is not invalid by reason of a vacancy in its membership, or a defect in an appointment. Division 2—Functions and powers of the Trust 13—General functions and powers of Trust (1) The functions of the Trust are as follows— (a) to administer and develop the Reserve in accordance with its strategic and business plans— (i) as a sporting, cultural and recreational complex of State-wide significance; and (ii) as a tourist attraction and resort; and (iii) within a designated area—as a place where boats may be launched, moored or stored (and where any ancillary or associated services may be provided); and (b) to promote and encourage the use and enjoyment of the Reserve by the public; and (c) to perform any other function assigned to the Trust by this Act or the Minister. (2) For the purpose, or in the course, of performing its functions, the Trust may— (a) establish committees (which may, but need not, consist of, or include, members of the Trust) to advise the Trust on any aspect of its functions; (b) delegate any of its powers under this Act to a committee, member of the Trust or other person; (c) acquire, deal with or dispose of real or personal property or any interest or right in relation to real or personal property; (d) provide facilities for accommodation, refreshment, sport or entertainment and any other amenities on the Reserve; (e) grant (on such conditions as the Trust thinks fit) leases, licences or other rights of occupation or use in relation to any part of the Reserve or any building or facility on or over any part of the Reserve; (f) carry out work and undertakings for the improvement or maintenance of the Reserve; (g) construct on the Reserve any buildings or structures that it considers appropriate; (h) fix charges for admission to the Reserve or any part of it; (i) fix charges for any services or amenities provided by the Trust; (j) enter into any contract or arrangement relevant to the functions of the Trust; (k) do any other thing that is necessary for, or incidental to, the performance of its functions. (3) A delegation under subsection (2)(b) is revocable at will and does not derogate from the power of the Trust to act itself in any matter. (4) Despite any other provision of this Act, the Trust must not sell any of the land bounded by bold black lines in the Schedule. (5) Despite any other provision of this Act (but subject to subsection (7)), the Trust must not— (a) sell any of its other real property (being real property not within the ambit of subsection (4)); or (b) grant a lease or licence over the Reserve, or a part of the Reserve, so as to result in a situation where the Trust has, in effect, transferred its responsibility to administer and develop the Reserve in accordance with section 13(1)(a) to another party; or (c) enter into any partnership, joint venture or other profit sharing arrangement, unless the Minister has approved a proposal for the transaction and has, at least two months before the proposed transaction is entered into— (d) given notice of the proposed transaction in the Gazette and in a newspaper circulating generally throughout the State; and (e) provided a written report on the proposed transaction to the Economic and Finance Committee of the Parliament. (6) Despite any other provision of this Act (but subject to subsection (7)), the Trust must not grant a lease or licence over the Reserve, or a part of the Reserve, for a term exceeding ten years (not being a lease or licence to which subsection (5)(b) applies) without the approval of the Minister. (7) If the Trust proposes to grant a lease or licence over the Reserve, or a part of the Reserve, for a term exceeding 20 years, the Trust must not do so except in pursuance of an approval granted by a resolution passed by both Houses of Parliament (and subsections (5) and (6) will then not apply with respect to the lease or licence). (8) Notice of a motion for a resolution under subsection (7) must be given at least 14 sitting days before the motion is passed. (9) A lease or licence that is subject to the operation of subsection (5), (6) or (7) must be consistent with the Trust's strategic and business plans (as applying at the time that the lease or licence is granted). (10) In subsection (1)(a)(iii)— designated area means an area designated by the Minister by notice in the Gazette for the purposes of that subsection. 14—Control of foreshore west of Reserve Subject to the Coast Protection Act 1972, that part of the foreshore that lies between the low water mark and the part of the western boundary of the Reserve that borders the sea will continue to be under the care, control and management of the Trust. Division 2A—Performance and scope of Trust's operations 14A—General performance principles (1) The Trust must perform its commercial operations in accordance with prudent commercial principles and use its best endeavours to achieve a level of return consistent with its functions. (2) The Trust must perform its non-commercial operations (if any) in an efficient and effective manner consistent with the requirements of its charter. (3) If the Trust's charter identifies any operations of the Trust as non-commercial operations, the operations are to be regarded as such for the purposes of this section. 14B—Trust's charter (1) The Minister must prepare a charter for the Trust after consultation with the Trust. (2) The charter must deal with the following matters: (a) the role that the Trust will adopt to ensure that the Reserve is administered and developed for the benefit of the State; and (b) the nature and scope of the commercial operations to be undertaken, including the nature and scope of any investment activities; and (c) the nature and scope of any non-commercial operations to be undertaken and the arrangements for their costing and funding; and (d) the nature and scope of any operations to be conducted outside the State; and (e) all requirements of the Minister as to— (i) the Trust's obligations to report on its operations; (ii) the form and contents of the Trust's accounts and financial statements; (iii) any accounting, internal auditing or financial systems or practices to be established or observed by the Trust; (iv) the setting of fees or charges and the acquisition or disposal of capital or assets. (3) The charter may— (a) limit the functions or powers of the Trust; and (b) deal with any other matter not specifically referred to in subsection (2). (4) The charter may not extend the functions or powers of the Trust as provided by this or any other Act. (5) The Minister must, after consultation with the Trust, review the charter before the end of each financial year. (6) The Minister may, after consultation with the Trust, amend the charter at any time. (7) The charter or any amendment to the charter comes into force and is binding on the Trust on a day specified in the charter or amendment (but without affecting any contractual obligations previously incurred by the Trust). 14C—Performance agreements (1) The Minister must, when preparing the charter for the Trust, also prepare, after consultation with the Trust, a performance agreement setting the various performance targets that the Trust is to pursue in the coming financial year or other period specified in the agreement and dealing with such other matters as the Minister considers appropriate. (2) The Minister must, after consultation with the Trust, review the performance agreement when reviewing the Trust's charter. (3) The Minister may, after consultation with the Trust, amend the performance agreement at any time. 14D—Business plans (1) The Trust must prepare— (a) a long-term strategic plan; and (b) a business plan. (2) The business plan must set out or include, in respect of the ensuing year— (a) strategies to achieve the Trust's performance targets, and a statement of the financial and other resources that will be required to achieve those targets; and (b) the performance measures that are to be used to monitor and assess performance against the Trust's targets. (3) A plan must be submitted to the Minister for approval and, when approved, adopted by the Trust. (4) The Minister may, after consultation with the Trust, require that a plan be amended. (5) The Trust may review a plan from time to time and must review its business plan before the end of each financial year, or whenever directed to do so by the Minister. (6) An amendment to a plan does not have effect unless or until approved by the Minister. Division 3—Staff of the Trust 15—Officers and employees (1) There will be— (a) a chief executive officer of the Trust; and (b) such other officers and employees of the Trust as are necessary for the administration of this Act. (2) Officers and employees of the Trust will be appointed by the Trust on such terms and conditions as the Trust may determine. (3) Officers and employees of the Trust are not employed in the Public Service of the State. (4) The Trust is declared not to be a national system employer for the purposes of the Fair Work Act 2009 of the Commonwealth. Division 4—Financial provisions 16—Dealings with money and borrowings (1) All money received by the Trust will be paid into an ADI account established by the Trust. (2) An ADI account established by the Trust will be operated by a cheque signed and countersigned by such persons as the Trust may appoint for the purpose. (3) All money received by the Trust will be applied by it towards the cost of carrying out its functions under this Act. (4) Any money of the Trust that is not immediately required for the purposes of the Trust may be invested in a manner approved by the Treasurer. (5) The Trust must not borrow money without consulting the Minister and obtaining the approval of the Treasurer. 17—Accounts and audit (1) The Trust will cause proper accounts to be kept of its financial affairs. (2) The Auditor-General may at any time, and must at least once in every year, audit the accounts of the Trust. (3) For the purpose of an audit under subsection (2), the Auditor-General may exercise, in relation to the accounts of the Trust and the officers and employees of the Trust, the powers that are vested in the Auditor-General by the Public Finance and Audit Act 1987. 18—Power to advance money, to act as guarantor etc (1) The Trust may submit for the Minister's approval a scheme for subsidising (by grant, loan or guarantee) work related to the Reserve, or the provision or maintenance of a service or facility on the Reserve, to be undertaken by a third party. (2) The Trust may, with the approval of the Minister, amend a scheme previously submitted and approved under this section. (3) An approved scheme and any amendment to it must be published in the Gazette. (4) A proposal of the Trust to lend or advance any money or securities requires the approval of the Treasurer. Part 3—Miscellaneous 19—Report (1) The Trust must, on or before 30 September in each year, deliver to the Minister a report on the administration of this Act during the financial year that ended on the preceding 30 June. (2) The report must incorporate the audited statement of accounts for the Trust in relation to the relevant financial year. (3) The Minister must cause a copy of a report submitted under subsection (1) to be laid before each House of Parliament within 12 sitting days of receipt of the report if Parliament is then in session, or if Parliament is not then in session, within 12 days of the commencement of the next session of Parliament. 20—Ministerial approvals (1) An approval given by the Minister or the Treasurer under this Act may be— (a) specific or general; and (b) conditional or unconditional. (2) An approval given by the Minister or the Treasurer may be varied or revoked by the Minister or the Treasurer (as the case may be) at any time. 21—Tax and other liabilities of Trust (1) Except as otherwise determined by the Treasurer, the Trust is liable to all such rates (other than rates that would be payable to a council), duties, taxes and imposts and has all such other liabilities and duties as would apply under the law of the State if the Trust were not an instrumentality of the Crown. (2) Except as otherwise determined by the Treasurer, the Trust is liable to pay to the Treasurer, for the credit of the Consolidated Account, such amounts as the Treasurer from time to time determines, after consultation with the Minister, to be equivalent to income tax and any other taxes or imposts that the Trust does not pay to the Commonwealth but would be liable to pay under the law of the Commonwealth if it were constituted and organised in such manner as the Treasurer determines to be appropriate for the purposes of this subsection as a public company or group of public companies carrying on the business carried on by the Trust. (3) Amounts determined by the Treasurer to be payable under subsection (2) must be paid at the times and in the manner determined by the Treasurer after consultation with the Minister. (4) Except as otherwise determined by the Treasurer after consultation with the Minister, land within the Reserve is exempt from council rates. (5) Except as otherwise determined by the Treasurer, the Trust, and any prescribed person, is liable to pay to the Treasurer, for the credit of the Consolidated Account, such amounts as the Treasurer from time to time determines, after consultation with the Minister, to be equivalent to rates that would be payable to a council but for the operation of subsection (4). (6) In this section— council means a council constituted under the Local Government Act 1999; prescribed person means a person who would be liable to pay council rates but for the operation of subsection (4). 22—Dividends (1) The Trust must, before the end of each financial year, recommend by writing to the Treasurer, that the Trust pay a specified dividend, or not pay a dividend, for that financial year, as the Trust considers appropriate. (2) The Treasurer may, after consultation with the Minister, by notice in writing to the Trust— (a) approve a recommendation of the Trust under subsection (1); or (b) determine that a dividend specified by the Treasurer be paid, or that no dividend be paid, as the Treasurer considers appropriate. (3) The Trust must, if so required by the Treasurer by notice in writing to the Trust at any time during a financial year, recommend by writing to the Treasurer that a specified interim dividend or specified interim dividends be paid by the Trust for that financial year, or that no such dividend or dividends be paid by the Trust, as the Trust considers appropriate. (4) The Treasurer may, after consultation with the Minister, by notice in writing to the Trust— (a) approve a recommendation of the Trust under subsection (3); or (b) determine that an interim dividend or interim dividends specified by the Treasurer be paid, or that no interim dividend be paid, as the Treasurer considers appropriate. (5) Any determination relating to whether a dividend should be paid under this section and, if so, the amount of any dividend must take into account the nature and scope of any non-commercial operations of the Trust, and any funding requirements or arrangements associated with those operations. (6) If a dividend or interim dividend or dividends is or are to be paid by the Trust, the dividend or dividends must be paid to the Treasurer in the manner and at the time or times determined by the Treasurer after consultation with the Minister. (7) If the Treasurer receives an amount from the Trust under this section, the Treasurer may, after consultation with the Minister— (a) allocate that amount, or a part of that amount, in a manner determined by the Treasurer; or (b) pay that account, or a part of that amount, for the credit of the Consolidated Account. (8) A recommendation under this section must be made by the Trust itself and may not be made by a person, committee or other body under a delegation. 23—Register of leases and licences (1) The Trust must keep a register of leases and licences granted by the Trust over any land bounded by bold black lines in the Schedule. (2) The register must— (a) identify the relevant land; and (b) set out— (i) the name of the lessee or licensee; and (ii) the term of the lease or licence. (3) The register must be available for inspection (without charge) by the public at the office of the Trust, or at some other office approved or determined by the Minister, during ordinary office hours. 23A—Damage etc to property of the Trust A person who, without the authority of the Trust— (a) damages or destroys any property of the Trust; or (b) removes any property of the Trust from the possession or control of the Trust, is guilty of an offence. Maximum penalty: $2 500. Expiation fee: $210. 24—Power to resume land in reserve (1) The Governor may, by proclamation, resume any of the land within the Reserve that is owned by the Trust, if satisfied that the land is required for a public purpose. (2) On such a proclamation being made under subsection (1), the land to which it relates will cease to be part of the Reserve and will vest in the Crown. (3) Subject to subsection (4) no compensation is payable to the Trust in respect of land so resumed. (4) If any improvements have been made to the land resumed and are in existence at the time of the resumption, the Governor will direct the Treasurer to pay the Trust an appropriate compensation having regard to the value of those improvements. 25—Regulations (1) The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), those regulations may— (a) provide for the admission, exclusion or expulsion of members of the public to or from the Reserve, or any part of it; and (b) regulate, restrict or prohibit the driving or parking of motor vehicles on the Reserve; and (ba) regulate, restrict or prohibit the launching or entry of boats into, or the launching, movement or mooring of boats within, any part of the Reserve covered by water; and (c) regulate, restrict or prohibit the entry of animals onto the Reserve; and (d) prohibit disorderly or offensive behaviour on the Reserve; and (e) prescribe penalties, not exceeding $1 250, for breach of, or non-compliance with, the regulations; and (f) fix expiation fees, not exceeding $160, for alleged offences against the regulations. (3) In any proceedings for an offence against a regulation an allegation in a complaint that a person named in the complaint was the owner or driver of a specified vehicle on a specified day will be taken to be proved in the absence of proof to the contrary. (4) The owner and driver of a motor vehicle are not both liable to be convicted of an offence arising out of the same circumstances and consequently conviction of the owner exonerates the driver and conversely conviction of the driver exonerates the owner. (5) An expiation notice or expiation reminder notice given under the Expiation of Offences Act 1996 to the owner of a vehicle for an alleged offence against a regulation arising out of the use of the vehicle must be accompanied by a notice inviting the owner, if he or she was not the driver at the time of the alleged offence, to provide the Trust, within the period specified in the notice, with a statutory declaration— (a) setting out the name and address of the driver; or (b) if he or she had transferred ownership of the vehicle to another prior to the time of the alleged offence and has complied with the Motor Vehicles Act 1959 in respect of the transfer—setting out details of the transfer (including the name and address of the transferee). (6) Before proceedings are commenced against the owner of a vehicle for an offence against a regulation arising out of the use of the vehicle, the complainant must send the owner a notice— (a) setting out particulars of the alleged offence; and (b) inviting the owner, if he or she was not the driver at the time of the offence, to provide the complainant, within 21 days of the date of the notice, with a statutory declaration setting out the matters referred to in subsection (5). (7) Subsection (6) does not apply to— (a) proceedings commenced where an owner has elected under the Expiation of Offences Act 1996 to be prosecuted for the offence; or (b) proceedings commenced against an owner of a vehicle who has been named in a statutory declaration under this section as the driver of the vehicle. (8) Subject to subsection (9), in proceedings against the owner of a vehicle for an offence against a regulation, it is a defence to prove— (a) that, in consequence of some unlawful act, the vehicle was not in the possession or control of the owner at the time of the alleged offence; or (b) that the owner provided the complainant with a statutory declaration in accordance with an invitation under this section. (9) The defence in subsection (8)(b) does not apply if it is proved that the owner made the declaration knowing it to be false in a material particular. (10) If— (a) an expiation notice is given to a person named as the alleged driver in a statutory declaration under this section; or (b) proceedings are commenced against a person named as the alleged driver in such a statutory declaration, the notice or summons, as the case may be, must be accompanied by a notice setting out particulars of the statutory declaration that named the person as the alleged driver. (11) In proceedings against a person named in a statutory declaration under this section for the offence to which the declaration relates, it will be presumed, in the absence of proof to the contrary, that the person was the driver of the vehicle at the time at which the alleged offence was committed. (12) In proceedings against the owner or driver of a vehicle for an offence against this Act, an allegation in the complaint that a notice was given under this section on a specified day will be accepted as proof, in the absence of proof to the contrary, of the facts alleged. Schedule—West Beach Recreation Reserve