MALABAR HEADLAND PROTECTION BILL 2012

i Malabar Headland Protection Bill 2012 No. , 2012

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Definitions

.........................................................................................

Application of Act--later transfers of Malabar headland

property .............................................................................................. 3

5 Constitutional

operation

of this Act ................................................... 4

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

Malabar transfer instruments--exercise of power etc........................ 5

Part 2--Protection of Malabar headland property

Transferred Malabar headland property--use for purposes of

national park etc. ................................................................................ 6

Transferred Malabar headland property--management .................... 6

Transferred Malabar headland property--sale and other

disposition .......................................................................................... 8

Part 3--Enforcement

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

Part 4--General

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

13 Regulations

......................................................................................

Part 1 Preliminary

Section 2

2 Malabar Headland Protection Bill 2012 No. , 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

Preliminary Part 1

Section 4

Malabar Headland Protection Bill 2012 No. , 2012 3

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).

Part 1 Preliminary

Section 5

4 Malabar Headland Protection Bill 2012 No. , 2012

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.

Preliminary Part 1

Section 7

Malabar Headland Protection Bill 2012 No. , 2012 5

(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 2 Protection of Malabar headland property

Section 8

6 Malabar Headland Protection Bill 2012 No. , 2012

Part 2--Protection 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.

Protection of Malabar headland property Part 2

Section 9

Malabar Headland Protection Bill 2012 No. , 2012 7

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).

Part 2 Protection of Malabar headland property

Section 10

8 Malabar Headland Protection Bill 2012 No. , 2012

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;

(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.

Part 3 Enforcement

Section 11

10 Malabar Headland Protection Bill 2012 No. , 2012

Part 3--Enforcement

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

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.

Enforcement Part 3

Section 11

Malabar Headland Protection Bill 2012 No. , 2012 11

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

Part 3 Enforcement

Section 11

12 Malabar Headland Protection Bill 2012 No. , 2012

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);

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.

General Part 4

Section 12

Malabar Headland Protection Bill 2012 No. , 2012 13

Part 4--General

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.

Commonwealth of Australia Bills

MALABAR HEADLAND PROTECTION BILL 2012