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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (18:06): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In July 2007 new directions for the management of native vegetation were announced with the aim of strengthening biodiversity conservation in the State, while at the same time supporting sustainable development. At that time, a comprehensive consultation process was conducted on a draft Bill to amend the Native Vegetation Act 1991.

Subsequently, the Native Vegetation (Miscellaneous) Amendment Bill 2008 was introduced to Parliament in the spring session of 2008. The House of Assembly approved the Bill without amendment on 26 November 2008 and debate on the second reading of the Bill commenced in the Legislative Council. While this 2008 Bill was generally supported, no further debate was conducted after May 2009 and the Bill lapsed. The Bill before you today builds on the lapsed 2008 Bill.

The continuing health and prosperity of all South Australians depends on the health of our environment, our landscapes and our biodiversity. In turn, improving and restoring the health and resilience of our environment will rely on the good will and endeavours of all South Australians.

The extensive modification of the South Australian agricultural landscape—necessary to support the strong rural base for this State—will not sustain viable populations of many plant and animal species in the limited habitat remaining. With climate change placing increasing pressure on our native species we face the risk that South Australia could lose up to 50 per cent of our terrestrial biodiversity over the coming decades. Innovative and strategic changes are needed to connect and accelerate the effort to support the 'no species loss target'.

The Native Vegetation Act 1991 remains a key legislative instrument supporting South Australia's Strategic Plan 'no species loss' target. The central purpose of the Native Vegetation Act 1991 is to control the clearance of significant native vegetation in this State and to ensure that where clearance occurs to support economic development, the loss of biodiversity is offset by a significant environmental benefit. The amendments proposed are not intended to alter the central purpose of the Act.

The key features of this Bill are to:

Increase flexibility in the delivery of significant environmental benefit offsets for vegetation clearance;

Add new expertise to the Native Vegetation Council;

Update evidentiary provisions to reflect modern technology;

Ensure that offences constituted under the Native Vegetation Act 1991 lie within the criminal jurisdiction of the Environment, Resources and Development Court;

Make minor modifications to existing powers and penalties to improve the administration of the legislation and to provide better integration with the Natural Resources Management Act 2004.

Significant environmental benefit offsets

The requirement in the Act for the clearance of native vegetation to be offset by a significant environmental benefit is in itself an innovative way to support necessary development for this State while also achieving biodiversity conservation objectives.

All remnant native vegetation has value and it is important that the impacts of a proposed development on native vegetation should be avoided or minimised. Requirements for significant environmental benefit offsets provide a mechanism for redressing impacts that cannot be avoided or minimised.

A number of amendments are proposed in this Bill to provide more flexibility for the delivery of significant environmental benefit offsets, including:

providing for offsets to be delivered where they are most needed, including outside of the region of the original clearance;

providing that the Native Vegetation Council, when considering a proposed significant environmental benefit offset outside the region of the original clearance, must have regard to guidelines prepared and published in accordance with section 25 of the Act;

making it clear that a credit may be registered, against future requirements for offsets, where an offset is delivered that exceeds that which is required to offset the related clearance of native vegetation;

In normal circumstances, the loss of biodiversity associated with clearance of native vegetation should be offset by works on the same property or within the same region that clearance has occurred. However, there may be circumstances where clearance occurs in well represented habitats and a more significant environmental benefit might be achieved by regenerating less well conserved native vegetation associations (eg vegetation that provides critical habitat for threatened species) outside the region where the related clearance occurs.

Such decisions should not be taken lightly and it is necessary that the Native Vegetation Council be satisfied that, where an offset for native vegetation is proposed in another region of the State (from that where the clearance occurs), it will result in a more significant environmental benefit than if undertaken in the region where the clearance occurs.

The Bill establishes a requirement for guidelines for the operation of the out-of-region offsets. Draft guiding principles have been endorsed by the Native Vegetation Council that clarify that the offset mechanism is limited to avoid the potential for critical habitat to be offset with habitat that is already well conserved. The draft guiding principles will be an interim measure pending completion of the formal consultation process required by section 25 of the Act.

Offset credits

The Native Vegetation Council has a policy of recognising conservation works previously undertaken when considering offset requirements. Consistent with this, the Council has supported, and sometimes encouraged, a landholder to undertake offset works that exceed requirements. Reasons may include:

conservation outcomes being delivered before they are needed to offset clearance;

maximising conservation outcomes—e.g. feral animal control can only be effective if applied over a larger area;

minimising impacts—e.g. a requirement to fence a small offset area within a larger area may result in more clearance.

The provisions in the Bill make it clear that the value of a 'credited offset' is determined at the time it is extinguished (i.e. when it is used to offset clearance).

Membership of the Native Vegetation Council

The Bill changes the membership of the Native Vegetation Council. Since the Commonwealth Minister for the Environment decided not to continue to nominate a representative to the Council, the Bill proposes to replace the Commonwealth Minister's nominee with a person who has expertise in planning or development nominated by the Minister responsible for administering the Native Vegetation Act 1991.

This reflects the importance of the interaction between native vegetation clearance and the housing and employment priorities of the 30 year plan for Greater Adelaide and associated regional plans. The Minister is provided with appropriate flexibility in nominating a suitable person for appointment and persons from other sectors who have appropriate expertise will not be excluded from nomination.

Offences under the Act to lie within the jurisdiction of the Environment Resources and Development Court

The Bill includes a provision that offences constituted under the Native Vegetation Act 1991 lie within the jurisdiction of the ERD Court. This will bring the Act up to date with more recent environmental legislation and ensure that a Judicial Officer will have wide practical knowledge of and experience in the preservation and management of native vegetation thereby avoiding lengthy explanations in a technical context.

Miscellaneous amendments

The Bill includes other miscellaneous amendments that:

ensures the admissibility of evidence derived from remotely sensed imagery unless proof to the contrary is produced.

make minor modifications to existing powers and penalties to improve administration of the legislation and to provide better integration with the NRM legislation;

provide that a breach of a heritage agreement is a breach of the Act to correct an inadvertent omission resulting from changes made in 2002;

clarify that the Act applies to that part of the City of Mitcham consisting of the suburbs of Belair, Bellevue Heights, Blackwood, Coromandel Valley, Craigburn Farm, Eden Hills, Glenalta and Hawthorndene.

Conclusion

The new directions for native vegetation management in South Australia, announced during 2007 are supported by the amendments included in this Bill. The Native Vegetation Act 1991 remains a key legislative instrument supporting South Australia's Strategic Plan 'no species loss' target. The amendments update the Act and ensure consistency with the State's other environmental legislation. They will strengthen landscape approaches to biodiversity conservation in the State and support economic development by providing improved flexibility for business.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Native Vegetation Act 1991

4—Amendment of section 3—Interpretation

This clause makes consequential amendments to the definitions of certain terms used in the Act.

5—Amendment of section 4—Application of Act

This clause inserts new subsection (2ab) into section 4 of the Act, setting out the parts of the City of Mitcham to which the Act applies (being the suburbs of Belair, Bellevue Heights, Blackwood, Coromandel Valley, Craigburn Farm, Eden Hills, Glenalta and Hawthorndene).

The clause also makes consequential amendments to the section to reflect the inclusion of new subsection (2ab).

6—Amendment of section 7—Establishment of the Council

This clause inserts a new subsection (3) into section 7 of the Act. The new subsection provides that the Native Vegetation Council is subject to the general direction and control of the Minister, but prevents the Minister from directing the Council in respect to advice or recommendation that the Council might give or make, or in relation to a particular application that is being assessed by, or that is to be, or has been, assessed by, the Council.

7—Amendment of section 8—Membership of the Council

This clause deletes paragraph (f) of section 8(1) of the Act (which states that 1 member of the Council must be nominated by the Commonwealth Minister for the Environment) and substitutes a new paragraph (f) that provides that 1 member must be a person with extensive knowledge of, and experience in, planning or development nominated by the Minister.

8—Amendment of section 9—Conditions of office

This clause inserts new paragraph (e) into section 9(2) of the Act, which allows the Governor to remove a member of the Council for breaching, or not complying, with a condition of his or her appointment.

9—Amendment of section 14—Functions of the Council

This clause substitutes a new subsection (2) into section 14, requiring the Council, when performing a function or exercising a power under the Act to take into account and seek to further the objects of the Act and the relevant principles of clearance of native vegetation, and also to take into account relevant NRM plans. The new subsection also requires that, in any event, the Council must not act in a manner that is seriously at variance with the principles of clearance of native vegetation.

10—Amendment of section 21—The Fund

The clause inserts new paragraphs (cc) and (cd) into subsection (3) of section 21 (which sets out what the fund consists of) to include amounts paid into the Fund in accordance with an order under section 31EA of the Act (inserted by clause 17 of this measure) and any provision made by the regulations.

The clause substitutes a new subsection (6) (which sets out how certain money in the Fund must be used) so that money may now be used to preserve etc existing native vegetation in the region where the relevant land is located.

The clause also inserts a new subsection (6a), which enables the Council to use money of a kind referred to in subsection (6) to be used to establish etc native vegetation in a region of the State other than the region where the relevant land is located if the Council is satisfied that the environmental benefit to be achieved in the other region will outweigh the value of achieving a significant environmental benefit within the region where the relevant land is located, the native vegetation satisfies certain criteria and the establishment etc of the native vegetation is carried out in accordance with relevant guidelines adopted under section 25 of the Act.

The clause also inserts new subsections (6b) and (6c) which set out procedural matters related to the operation of new subsection (6a).

The clause also amends the definition of relevant land in subsection (7) to include (if new subsection (3)(cd) applies) land on which the native vegetation that is relevant to the operation of the particular regulation was grown or was situated.

11—Amendment of section 25—Guidelines for the application of assistance and the management of native vegetation

This clause amends section 25 of the Act, adding the establishment etc of native vegetation under section 21(6a), and any other matter required by the regulations, to the list of matters for which the Council must prepare guidelines.

The clause also inserts a new paragraph (ab) to subsection (2), requiring the Council to submit draft guidelines prepared by the Council to the Minister for comment.

12—Amendment of section 26—Offence of clearing native vegetation contrary to this Part

This clause increases the expiation fee for an offence under subsection (1) or (2) of section 26 to $750, up from $500.

The clause also extends the time within which the Council must initiate civil enforcement proceedings following conviction of an offence against those subsections to 6 months, up from 21 days.

13—Amendment of section 28—Application for consent

This clause makes amendments to section 28 of the Act that are consequential on the insertion of new section 28A by this measure.

14—Insertion of section 28A

This clause inserts a new section 28A into the Act. The new clause enables a person to be credited with having achieved an environmental benefit if the person has achieved an environmental benefit other than as required in relation to a consent to clear native vegetation or under any other requirement under this Act. A person can also be credited if, acting in accordance with a consent to clear native vegetation, the person achieves environmental benefits that exceed the value of the minimum benefit needed to offset the loss of the cleared vegetation. In both cases, the Council must be satisfied that the benefit or excess benefit (as the case requires) is of significant value.

Having been so credited, the new section allows the credit to be offset against such requirements in relation to a future application for consent to clear native vegetation.

The clause also sets out procedural matters in relation to determining and applying such credits.

15—Repeal of section 31

This clause repeals redundant section 31 of the Act (the substance of which is now effected by the definition of breach in section 4 of the Act, as amended by this measure).

16—Amendment of section 31E—Enforcement notices

This clause amends section 31E of the principal Act to extend the time within which an authorised officer can give a direction under the section to two years, up from 12 months. The clause also makes a consequential amendment to the section.

17—Insertion of section 31EA

This clause inserts new section 31EA, which allows a person to whom an authorised officer has given a direction under section 31E(1)(b) (that is, a direction that the person make good the breach in a manner, and within a period, specified by the authorised officer) to apply to the Council for a substituted direction if it is not reasonably practicable for the person to comply with the direction.

Subsection (3) sets out the directions the Council may substitute for the original direction, and the clause makes procedural provision in relation to such directions.

18—Substitution of section 33

This clause substitutes new section 33 to allow civil enforcement proceedings (being proceedings where the respondent has expiated or been convicted or found guilty of an offence under the Act) to be commenced within 6 months after the date on which the respondent expiated, or was convicted or found guilty of, the offence. This prevents commencement of the proceedings from being barred where the length of a trial, or the delayed detection of an offence, exceeds the time allowed for commencement of such proceeding (changed by this measure to five years to ensure consistency with other provisions in the Act).

19—Amendment of section 33A—Appointment of authorised officers

This clause repeals paragraphs (b), (c) and (d) of section 33A(3) of the Act, varying the information that must be printed on the identity cards of authorised officers.

It also removes the requirement that an appointment of an authorised officer be for a fixed term.

20—Amendment of section 33B—Powers of authorised officers

This clause repeals subsections (4), (5) and (6) of section 33B of the Act in order to make the section consistent with the Natural Resources Management Act 2004.

21—Amendment of section 33D—Provisions relating to seizure

This clause amends subsection (2) of section 33D of the Act to increase (from six to 12 months) the prescribed period relevant to the section, making the section consistent with the Natural Resources Management Act 2004.

22—Substitution of section 33J

This clause inserts new sections 33J and 33K into the principal Act.

Section 33J allows the ERD Court to be constituted of a magistrate and a commissioner if the Senior Judge of the Court so determines, and further provides that offences under the principal Act lie within the criminal jurisdiction of the ERD Court (rather than the Magistrates Court).

Section 33K makes procedural provisions regarding what can happen in respect of making orders under the Act (in civil enforcement proceedings) if criminal proceedings for an offence against the Act are also on foot.

23—Amendment of section 34—Evidentiary

This clause amends section 34 of the principal Act to allow for certain remotely sensed images (for example, an image captured by a camera mounted on a satellite) to be accepted as proof of certain certified facts in the absence of proof to the contrary.

24—Amendment of section 35—Proceedings for an offence

This clause amends section 35 of the Act to increase the time within which proceedings for an offence under the Act may be commenced to five years, up from the current four years (or six years in exceptional circumstances). This provides consistency with similar provisions in the Natural Resources Management Act 2004.

25—Amendment of section 41—Regulations

This clause amends the regulation making power in section 41 of the Act to increase the maximum expiation fee under the regulations to $750, to enable the regulations to provide for certain amounts of money to be paid into the Fund and to enable the regulations to create offences with fines of up to $10,000 and make evidentiary provisions in relation to those offences.

Debate adjourned on motion of Hon. S.G. Wade.


At 18:07 the council adjourned until Tuesday 27 September 2011 at 14:15.


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