Federal Register of Legislation - Australian Government

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A Bill for an Act to protect the environmental values and Aboriginal cultural heritage of the Malabar headland, and for related purposes
Administered by: Finance
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 10 May 2012
Introduced HR 09 May 2012
Table of contents.

2010‑2011‑2012

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Malabar Headland Protection Bill 2012

 

No.      , 2012

 

(Special Minister of State)

 

 

 

A Bill for an Act to protect the environmental values and Aboriginal cultural heritage of the Malabar headland, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Definitions.......................................................................................... 2

4............ Application of Act—later transfers of Malabar headland property...... 3

5............ Constitutional operation of this Act..................................................... 4

6............ Compensation for acquisition of property........................................... 4

7............ Malabar transfer instruments—exercise of power etc......................... 5

Part 2—Protection of Malabar headland property                                          6

8............ Transferred Malabar headland property—use for purposes of national park etc.     6

9............ Transferred Malabar headland property—management....................... 6

10.......... Transferred Malabar headland property—sale and other disposition.. 8

Part 3—Enforcement                                                                                                         10

11.......... Injunctions for contravention of the Act........................................... 10

Part 4—General                                                                                                                    13

12.......... Review by Administrative Appeals Tribunal.................................... 13

13.......... Regulations....................................................................................... 13


A Bill for an Act to protect the environmental values and Aboriginal cultural heritage of the Malabar headland, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Malabar Headland Protection Act 2012.

2  Commencement

                   This Act commences on the day after this Act receives the Royal Assent.

3  Definitions

                   In this Act:

Aboriginal cultural heritage means the cultural heritage of people of the Aboriginal race of Australia.

Biodiversity Convention means the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, as amended and in force for Australia from time to time.

Note:          The text of the Convention is set out in Australian Treaty Series 1993 No. 32 ([1993] ATS 32). In 2012, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

commencement of this Act means the time this Act commences under section 2.

Commonwealth Minister means the Minister administering this Act.

Malabar headland property means any land within the property that, as at the end of 15 March 2011, consisted of:

                     (a)  lots 101 and 102 of Deposited Plan 1162245, as registered on that day under the Real Property Act 1900 of New South Wales; or

                     (b)  lot 2 of Deposited Plan 809094, as registered under that Act.

this Act includes any regulations made under this Act.

transferred Malabar headland property means any Malabar headland property that has been transferred by the Commonwealth to New South Wales. This includes Malabar headland property that was transferred to New South Wales before the commencement of this Act.

Example:    Malabar headland property that is lot 102 of Deposited Plan 1162245, registered under the Real Property Act 1900 of New South Wales, was transferred by the Commonwealth to New South Wales on 2 March 2012 under a deed of transfer dated on or around 27 February 2011 (although the property was described differently in the deed). Even though the transfer was completed before the commencement of this Act, this property is transferred Malabar headland property.

Note:          If transferred Malabar headland property is transferred to another person after its transfer to New South Wales, this Act applies to the other person in the same way as it formerly applied to New South Wales (see section 4).

4  Application of Act—later transfers of Malabar headland property

Transfer of land from NSW

             (1)  If, after it was initially transferred to New South Wales, transferred Malabar headland property is later transferred (whether by New South Wales or a later transferee) to another person (the current owner):

                     (a)  this Act (apart from subsections 8(2) and 9(2)) stops applying in relation to New South Wales, or the later transferee; and

                     (b)  this Act starts to apply in relation to the current owner in the same way as it formerly applied in relation to New South Wales or the later transferee.

Example:    Transferred Malabar headland property is transferred from the Commonwealth to New South Wales, then later transferred to a third person. While the third person owns the property, this Act applies to the third person as provided in this subsection. If the third person transfers the property to a fourth person, this Act will apply to the fourth person in the same way, and so on.

Note 1:       After the transfer of Malabar headland property to New South Wales, the Commonwealth Minister’s consent is required for any disposition of the property (including a transfer). See section 10.

Note 2:       Subsections 8(2) and 9(2) (mentioned in paragraph (1)(a)) require a NSW Minister to be consulted before regulations are made about the use of transferred Malabar headland property or the management of such property.

             (2)  Subsection (1) applies to a later transfer whether it occurs before or after the commencement of this Act.

             (3)  However, subsection (1) does not apply in relation to a transfer that contravenes section 10 (which requires the prior written consent of the Commonwealth Minister to the transfer).

Later transfer back to the Commonwealth

             (4)  If, after it was initially transferred to New South Wales, transferred Malabar headland property later becomes vested in the Commonwealth, this Act stops applying to the property unless and until it is transferred back to New South Wales.

Note:          The deed of transfer of Malabar headland property that is lot 2 of Deposited Plan 1162245, mentioned in the example to the definition of transferred Malabar headland property in section 3, requires the property to be transferred back to the Commonwealth unless it is reserved as a national park under the National Parks and Wildlife Act 1974 of New South Wales within 5 years after the initial transfer to New South Wales.

5  Constitutional operation of this Act

                   This Act operates only to the extent that:

                     (a)  its operation is reasonably appropriate and adapted for either or both of the following purposes:

                              (i)  the fulfilment of Australia’s obligations under the Biodiversity Convention;

                             (ii)  the protection or promotion of Aboriginal cultural heritage; or

                     (b)  the exercise of a power or the performance of a function or duty under, or for the purposes of, this Act by the Commonwealth Minister is reasonably appropriate and adapted for either or both of the purposes mentioned in paragraph (a).

6  Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

7  Malabar transfer instruments—exercise of power etc.

             (1)  Nothing in this Act affects the exercise of a power, or the performance of a function or a duty, by the Commonwealth, New South Wales or any other person under an instrument (a Malabar transfer instrument) under which transferred Malabar headland property is transferred to New South Wales.

             (2)  Nothing in a Malabar transfer instrument affects the exercise of a power, or the performance of a function or a duty, by the Commonwealth under this Act.

Note:          If transferred Malabar headland property is transferred to another person after its transfer to New South Wales, this section applies to the other person in the same way as it formerly applied to New South Wales (see section 4).


 

Part 2Protection of Malabar headland property

  

8  Transferred Malabar headland property—use for purposes of national park etc.

             (1)  New South Wales must use transferred Malabar headland property, or cause it to be used, for:

                     (a)  a purpose for which a national park may be reserved under the NSW National Parks and Wildlife Act, with the primary purpose being conservation; or

                     (b)  a purpose prescribed in relation to the property by any regulations made for the purposes of this paragraph.

             (2)  Before regulations are made for the purposes of paragraph (1)(b), the Commonwealth Minister must consult a Minister nominated by the Premier of New South Wales for the purpose.

Note:          If transferred Malabar headland property is transferred to another person after its transfer to New South Wales, subsection (1) applies to the other person in the same way as it formerly applied to New South Wales (see section 4).

             (3)  In this section:

NSW National Parks and Wildlife Act means the National Parks and Wildlife Act 1974 of New South Wales, as in force at the commencement of this Act.

9  Transferred Malabar headland property—management

Management in accordance with regulations or with consent

             (1)  New South Wales must manage transferred Malabar headland property, or cause it to be managed, in accordance with:

                     (a)  regulations prescribed for the purposes of this paragraph; or

                     (b)  in relation to a particular action or omission proposed in the course of the management of the property—the prior written consent of the Commonwealth Minister to that action or omission, subject to any conditions stated in the consent.

Regulations

             (2)  Before regulations are made for the purposes of paragraph (1)(a), the Commonwealth Minister must consult a Minister nominated by the Premier of New South Wales for the purpose.

             (3)  Regulations made for the purposes of paragraph (1)(a) may apply, adopt or incorporate, with or without modification, any matter contained in any other instrument or writing, as existing at a particular time.

Example:    The regulations may incorporate a plan of management as in force at a particular time under a deed by which transferred Malabar headland property is transferred from the Commonwealth to New South Wales, whether it is transferred before or after the commencement of this Act.

             (4)  The Commonwealth Minister must, as soon as practicable after regulations are made to which subsection (3) applies, cause the text of the matter applied, adopted or incorporated by the regulations to be published on the Department’s website.

Consent

             (5)  The Commonwealth Minister must not make a decision to give consent, to give consent subject to conditions or to refuse to give consent, for the purposes of paragraph (1)(b), if making the decision would be inconsistent with either or both of the following purposes:

                     (a)  the fulfilment of Australia’s obligations under the Biodiversity Convention;

                     (b)  the protection or promotion of Aboriginal cultural heritage.

             (6)  A consent given by the Commonwealth Minister under paragraph (1)(b) is not a legislative instrument.

Note:          If transferred Malabar headland property is transferred to another person after its transfer to New South Wales, this section (apart from subsection (2)) applies to the other person in the same way as it formerly applied to New South Wales (see section 4).

10  Transferred Malabar headland property—sale and other disposition

Consent—requirement

             (1)  After transferred Malabar headland property has been initially transferred to New South Wales, New South Wales must not dispose of a legal or equitable interest in the property, or do anything for the purpose of effecting such a disposition:

                     (a)  without obtaining the prior written consent of the Commonwealth Minister; or

                     (b)  without complying with any condition stated in such a consent.

Examples:  A disposition of a legal or equitable interest in transferred Malabar headland property may be effected, with the consent this subsection requires, by methods including the following:

(a)    sale;

(b)    transfer;

(c)    lease;

(d)    mortgage;

(e)    charge.

             (2)  Immediately following a disposition of an interest in transferred Malabar headland property that contravenes subsection (1), the interest is vested (again) in New South Wales by operation of this subsection.

Consent—other matters

             (3)  The Commonwealth Minister must not make a decision to give consent, to give consent subject to conditions or to refuse to give consent, for the purposes of subsection (1), if making the decision would be inconsistent with either or both of the following purposes:

                     (a)  the fulfilment of Australia’s obligations under the Biodiversity Convention;

                     (b)  the protection or promotion of Aboriginal cultural heritage.

             (4)  A consent given by the Commonwealth Minister under subsection (1) is not a legislative instrument.

Note:          If transferred Malabar headland property is transferred to another person (with the prior written consent of the Commonwealth Minister, as required under subsection (1)) after its transfer to New South Wales, this section applies to the other person in the same way as it formerly applied to New South Wales (see section 4).


 

Part 3Enforcement

  

11   Injunctions for contravention of the Act

Applications for injunctions

             (1)  If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes a contravention of this Act:

                     (a)  the Commonwealth Minister; or

                     (b)  an interested person (other than an unincorporated organisation); or

                     (c)  a person acting on behalf of an unincorporated organisation that is an interested person;

may apply to the Federal Court of Australia for an injunction.

Note:          For who is an interested person, see subsections (6) and (7).

Prohibitory injunctions

             (2)  If a person has engaged, is engaging or is proposing to engage in conduct constituting a contravention of this Act, the Court may grant an injunction restraining the person from engaging in the conduct.

Additional orders with prohibitory injunctions

             (3)  If the Court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment or to Aboriginal cultural heritage).

Mandatory injunctions

             (4)  If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute a contravention of this Act, the Court may grant an injunction requiring the person to do the act.

Interim injunctions

             (5)  Before deciding an application for an injunction under this section, the Court may grant an interim injunction:

                     (a)  restraining a person from engaging in conduct; or

                     (b)  requiring a person to do an act.

Meaning of interested person—individuals

             (6)  For the purposes of an application for an injunction relating to conduct or proposed conduct purportedly affecting the environment or Aboriginal cultural heritage, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:

                     (a)  the individual’s interests have been, are or would be affected by the conduct or proposed conduct; or

                     (b)  the individual engaged in a series of activities for protection or conservation of, or research into, the environment, or Aboriginal cultural heritage, as the case may be, at any time in the 2 years immediately before:

                              (i)  the conduct; or

                             (ii)  in the case of proposed conduct—making the application for the injunction.

Meaning of interested person—organisations

             (7)  For the purposes of an application for an injunction relating to conduct or proposed conduct purportedly affecting the environment or Aboriginal cultural heritage, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:

                     (a)  the organisation’s interests have been, are or would be affected by the conduct or proposed conduct;

                     (b)  if the application relates to conduct—at any time during the 2 years immediately before the conduct:

                              (i)  the organisation’s objects or purposes included the protection or conservation of, or research into, the environment or Aboriginal cultural heritage (as the case may be); and

                             (ii)  the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment or Aboriginal cultural heritage (as the case may be);

                     (c)  if the application relates to proposed conduct—at any time during the 2 years immediately before the making of the application:

                              (i)  the organisation’s objects or purposes included the protection or conservation of, or research into, the environment or Aboriginal cultural heritage (as the case may be); and

                             (ii)  the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment or Aboriginal cultural heritage (as the case may be).

Other proceedings

             (8)  In considering an application, or in making an order, in relation to a matter for the purposes of this section, the Court may take into consideration any pending or current proceedings in another court or a tribunal, or any decision or order of another court or a tribunal, in relation to the matter.


 

Part 4General

  

12  Review by Administrative Appeals Tribunal

                   Applications may be made to the Administrative Appeals Tribunal for review of the following decisions:

                     (a)  the following decisions of the Commonwealth Minister for the purposes of paragraph 9(1)(b) (which deals with the management of transferred Malabar headland property):

                              (i)  to give consent;

                             (ii)  to give consent subject to conditions;

                            (iii)  to refuse to give consent;

                     (b)  the following decisions of the Commonwealth Minister for the purposes of subsection 10(1) (which deals with the sale and other disposition of interests in transferred Malabar headland property):

                              (i)  to give consent;

                             (ii)  to give consent subject to conditions;

                            (iii)  to refuse to give consent.

13  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.