Offences on public land

09 Aug 2016 - 16:21 | Version 1 |

Offences on public land in the ACT differ depending on whether the land is a reserve, contains a declared Ramsar site, or if the land is public unleased or leased land. Offences that apply to reserves are primarily found in Chapter 9 of the Nature

Conservation Act. Offences that apply to declared Ramsar sites are found in the EPBC Act. A number offences also apply to public unleased land and are found in the Public Unleased Land Act.

Offences on reserves

Chapter 9 of the Nature Conservation Act contains a number of the most serious offences that apply to reserves in the ACT. Chapter 2 of the Criminal Code 2002 (ACT) applies to all offences against the Nature Conservation Act (s 5) and sets out the general principles of criminal responsibility under territory laws.

Many of the offences under the Nature Conservation Act are strict liability offences. Strict liability means that there are no fault elements for the physical elements of the offence (Criminal Code 2002 (ACT) s 23(a)). In other words, for a strict liability offence, the prosecution need only to prove that the accused's conduct was in contravention of the Act. The prosecution does not need to prove that the accused intended to contravene the Act. However, for strict liability offences, the accused may raise the defence that they made an honest and reasonable mistake as to the facts in relation to the physical elements of the offence (s 23(b)).

Where a person commits an offence or carries out a prohibited activity in a reserve, they may be found guilty and ordered to pay a fine consisting of penalty units. The value of a penalty unit is subject to change and is currently the equivalent of $150 where the offence is committed by an individual and $750 where the offence is committed by a corporation (Legislation Act s 133).

Reserves--offences generally

Part 9.1 of the Nature Conservation Act contains a number of offences applicable to conduct in all reserves unless they are subject to an exception contained in an 'activities declaration' or other statutory exceptions (discussed below). These general offences include:
  • enter a reserve without paying the entry fee (max. 20 penalty units) (s 213)
  • taking an animal into, or allowing an animal to enter, a reserve (max. 50 penalty units) (s 214)
  • feeding a native animal in a reserve (max. 10 penalty units) (s 215)
  • interfering with a trap or bait in a reserve (max. 30 penalty units) (s 216)
  • possessing or using a weapon in a reserve (max. 50 penalty units) (s 217)
  • damaging a native plant in a reserve (max. 50 penalty units) (s 218)
  • taking a plant, or plant reproductive material, into a reserve (max. 30 penalty units) (s 219)
  • planting a plant in a reserve (max. 30 penalty units) (s 220)
  • removing soil or stone from a reserve (max. 30 penalty units) (s 221)
  • damaging, destroying or removing things in a reserve (max. 50 penalty units) (s 222).

Reserves--offences in wilderness areas

A 'wilderness area' is an area of public land that has been reserved in the TP for a wilderness area under the Planning Act (Nature Conservation Act s 170). Part 9.2 of the Nature Conservation Act outlines the offences that specifically apply to these types of reserves. These include:
  • making a road in a wilderness area (max. 50 penalty units) (s 223)
  • using a motor vehicle off road in a wilderness area (max. 50 penalty units) (s 224)
  • excavating in a wilderness area without a licence (max. 50 penalty units) (s 225)
  • failing to restore a wilderness area after excavating it (max. 20 penalty units) (ss 226 and 227).

Reserves--offences about clearing native vegetation

Part 9.4 of the Act contains offences related to the clearing of native vegetation. Native vegetation means any trees, understorey plants, groundcover consisting of any grass or herbaceous vegetation, or plants occurring in a wetland or stream, that are indigenous to the area that they are in (s 232). Clearing native vegetation can include actions such as cutting down, felling, thinning, logging, removing, burning or killing native vegetation (s 234).

For the purpose of Part 9.4, clearing vegetation will be taken to have 'caused material harm' if the clearing happens in a wetland (that is not a declared Ramsar site); the total area cleared is between 0.2ha and 2ha; or the cost of action needed to restore the cleared native vegetation is between $5,000 and $50, 000 (s 235).

Clearing vegetation will be taken to have 'caused serious harm' if the clearing causes the loss of, or partial loss of, a critically endangered ecological community; an endangered ecological community; or a vulnerable ecological community in the reserve. Clearing vegetation also 'causes serious harm' if the clearing causes a substantial loss of habitat of native plants or native animals in the reserve; if it happens in a Ramsar wetland; if the total area of native vegetation cleared is more than 2ha; or the cost of action to restore the native vegetation is more than $50, 000 (s 235). Offences in this Part include:
  • knowingly clearing native vegetation and causing serious harm to a reserve (max. 2,500 penalty units, imprisonment for 7 years or both) (s 236(1))
  • recklessly clearing native vegetation and causing serious harm to a reserve (max. 2,000 penalty units, imprisonment for 5 years or both) (s 236(2))
  • negligently clearing native vegetation and causing serious harm to a reserve (max. 1,500 penalty units, imprisonment for 3 years or both) (s 236(3))
  • knowingly clearing native vegetation and causing material harm to a reserve (max. 1,500 penalty units, imprisonment for 5 years or both) (s 237(1))
  • recklessly clearing native vegetation and causing material harm to a reserve (max. 1,000 penalty units, imprisonment for 2 years or both) (s 237(2))
  • negligently clearing native vegetation and causing material harm to a reserve
(max. 750 penalty units, imprisonment for 1 years or both) (s 237(3))
  • clearing native vegetation in a reserve (max. 50 penalty units) (s 238).

Reserves--offences about damaging land

Part 9.5 of the Act deals with offences about damaging land. 'Damage to land' means the destruction of the land, or removal from the land, of any of the following: clay, gravel, rock, sand, soil or stone (s 243). For example, the contamination of soil or the crushing of rocks would constitute damage to land under the Act.

It is important to note the following three definitions that apply to this Part: Damage to land in a reserve causes 'material harm' if the cost of action needed to rehabilitate the area is within $5,000 and $50,000 (s 244). 'Serious harm' is the loss of, or partial loss of, a critically endangered ecological community, an endangered ecological community or a vulnerable ecological community in the reserve (s 244). Harm that is neither material nor serious includes any loss or disadvantage to the environment in the reserve (s 247(5)). Offences in this part include:
  • knowingly damaging land and causing serious harm (max. 2,500 penalty units, imprisonment for 7 years or both) (s 245(1))
  • recklessly damaging land and causing serious harm (max. 2,000 penalty units, imprisonment for 5 years or both) (s 245(2))
  • negligently damaging land and causing serious harm (max. 1,500 penalty units, imprisonment for 3 years or both) (s 245(3))
  • knowingly damaging land and causing material harm (max. 1,500 penalty units, imprisonment for 5 years or both) (s 246(1))
  • recklessly damaging land and causing material harm (max. 1,000 penalty units, imprisonment for 2 years or both) (s 246(2))
  • negligently damaging land and causing material harm (max. 750 penalty units, imprisonment for 1 years or both) (s 246(3))
  • damaging land and causing harm (max. 50 penalty units) (s 247).

The Emergencies Act 2004 (ACT)

The Nature Conservation Act (including the offences and prohibitions contained within the Act) does not apply to 'relevant persons' who are exercising, or purporting to exercise, a function under the Emergencies Act 2004 (ACT) for the purpose of protecting life or property or controlling, extinguishing or preventing the spread of a fire (Nature Conservation Act s 7). A 'relevant person' includes persons such as members of the ambulance service, fire and rescue, rural fire service, State Emergency Service or a police officer (s 7(2)).

Reserves--repairing damage

The conservator has the power to direct a person to repair any damage that they have caused to a reserve or territory property on a reserve (such as a fence or a visitor facility) (s 229). This direction is known as a 'repair damage direction' under the Act. This direction must be in writing and it must state what reserve or property was damaged, the extent of the damage to be repaired and when the direction must be complied with (s 229(3)). The relevant offence under this Part includes:

* failing to comply with a repair damage direction (max. 20 penalty units) (s 230).

Offences on public unleased land

Public unleased land is defined in the Public Unleased Land Act as unleased territory land that the public is entitled to use or is open to the public (s 8). This Act's primary objective is to protect the amenity and natural value of public unleased land (s 6). The Act contains a number of offences established to uphold this objective. It is useful to note that Chapter 2 of the Criminal Code 2002 (ACT) also applies to offences under this Act (s 5).

Offences--Management and protection

The Public Unleased Land Act includes a number of offences to help facilitate the management and protection of public unleased land. These offences include:
  • using a closed road without approval (max. 10 penalty units) (s 13)
  • failing to comply with a drainage direction (max. 5 penalty units) (s 16)
  • carrying out work on public unleased land without approval (max. 10 penalty units) (s 20)
  • failing to comply with a repair damage direction (max. 20 penalty units) (s 22)
  • placing a fixed sign on public unleased land without approval (max. 10 penalty units) (s 26)
  • placing a movable sign on public unleased land and failing to comply with the movable signs code of practice (max. 10 penalty units or, if the matter relates to insurance, max. 50 penalty units) (s 28)
  • failing to comply with a plant pruning direction (max. 5 penalty units) (s 32)
  • failing to comply with a plant removal direction (max. 50 penalty units) (s 35).

Offences--permits

Part 3 of the Public Unleashed Land Act establishes a permit system that allows suitable persons to apply for permits allowing them to exclusively use public unleased land (s 40). For the purpose of Part 3, 'using' public unleased land is carrying out activities on the land in a way that excludes some or all members of the public from the land (s 41). For example, placing a construction skip on a footpath would be 'using public unleased land'. Offences that apply under this Part include:
  • using public unleased land to the exclusion of others without a permit (max. 20 penalty units) (s 43)
  • failing to comply with conditions of a permit granted for use of the public unleased land (max. 20 penalty units or, if the condition is a financial assurance condition, max. 30 penalty units) (s 44).

Offences--directions

Police officers and authorised persons are permitted under Part 4 of the Act to give certain directions to people who are on public unleased land in order to facilitate the enforcement of the Act. Public servants may be appointed as 'authorised persons' by the director-general. Additionally, investigators under the Fair Trading (Australian Consumer Law) Act 1992 (ACT) are authorised persons for the purposes of this Act.

Offences under this Part include:
  • failing to comply with a direction to give name and address to a police officer or authorised person if they have reasonable grounds to suspect a crime was committed or is about to be committed (max. 5 penalty units) (s 93)
  • failing to comply with a direction to produce an approval, permit or insurance policy by a police officer or other authorised person (max. 10 penalty units) (s 95)
  • failing to comply with a direction to leave permitted public unleased land by a police officer or other authorised person when a permit holder is lawfully using the unleased public land (max. 5 penalty units) (s 97)
  • failing to comply with a director-general's direction (max. 20 penalty units) (s 101)
  • failing to comply with an emergency closure order (max. 30 penalty units) (s 104).

Offences on declared Ramsar wetlands

Section 17B of the EPBC Act makes it an offence to take an action that results in, or will result in, a significant impact on the ecological character of a Ramsar wetland. This offence is a strict liability offence (definition above) and Chapter 2 of the Criminal Code Act 1995 (Cth) applies in relation to the general principles of criminal responsibility (s 17B(1A)).

Controlled activity orders

Certain activities, such as using unleased territory land in a way that is not authorised by a licence under the Planning Act or a permit under the Public Unleased Land Act, are regarded as 'controlled activities' under the Planning Act and are prohibited. A list of controlled activities in relation to public land is contained in Schedule 2 of the Planning Act, for example failing to enter into a land management agreement as required. Controlled activities can also include those prescribed by regulation (Planning Act s 339).

When a person carries out a controlled activity, ACTPLA has the power to issue a controlled activity order requiring that person to stop carrying out the activity or to undertake steps to remedy any damage caused by the activity (s 358). ACTPLA has the power to make a controlled activity order either on its own initiative (s 353) or after reviewing a complaint by a member of the public (s 350). Any person who believes that someone is conducting, or has conducted, a controlled activity may complain to ACTPLA (s 340).

It is an offence to contravene a controlled activity order (s 361). It is also an offence to contravene an ACTPLA direction to carry out rectification work in relation to a controlled activity (s 367). Additionally, ACTPLA or any other person may apply to the Supreme Court seeking an injunction against a person who is carrying out, or proposes to carry out, a controlled activity (s 381).

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