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CROWN LAND ACTS AMENDMENT (LEASE AND LICENCE TERMS) BILL 2009

  Crown Land Acts Amendment (Lease
     and Licence Terms) Bill 2009

                        Introduction Print

              EXPLANATORY MEMORANDUM


                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill, which are to--
                   provide a licensing scheme for tour operators and
                    activity providers on Crown land administered under the
                    Crown Land (Reserves) Act 1978, Forests Act 1958,
                    Land Act 1958, National Parks Act 1975, and the
                    Wildlife Act 1975;
                   increase the maximum lease term under the Crown
                    Land (Reserves) Act 1978 and Forests Act 1958 from
                    21 years to 65 years;
                   increase the maximum licence term under the Crown
                    Land (Reserves) Act 1978 from 3 years to 10 years;
                   provide for licence terms greater than 10 years under the
                    Crown Land (Reserves) Act 1978 and Land Act 1958
                    in circumstances where the licensee leases adjacent
                    land; and
                   amend the Crown Land (Reserves) Act 1978, Forests
                    Act 1958, Land Act 1958, National Parks Act 1975,
                    Wildlife Act 1975, Coastal Management Act 1995,
                    Conservation, Forests and Lands Act 1987, the Land
                    (Revocations and Other Matters) Act 1991 and the
                    Fraser National Park Act 1957 to enhance the
                    operation of those Acts generally.




561279                               1        BILL LA INTRODUCTION 5/5/2009

 


 

Clause 2 provides that the Act, except for provisions providing for a new licensing scheme for tour operators and activity providers, will commence on the day after the day on which it receives the Royal Assent. The provisions relating to the licensing scheme for tour operators and activity providers on Crown land will commence on a day to be proclaimed or on 1 July 2011 if not proclaimed earlier. The reason for the later commencement of these provisions is to allow for licence fees and conditions to be prescribed by regulations. PART 2--AMENDMENT OF THE CROWN LAND (RESERVES) ACT 1978 Clause 3 inserts new definitions in section 3 of the Crown Land (Reserves) Act 1978. Subclause (1) defines responsible Minister as the Minister administering the Crown Land (Reserves) Act 1978 or another Minister if powers have been conferred on that Minister under section 17AB. The need for this definition is a consequence of the amendment in clause 8, which allows the Governor in Council by Order on the joint recommendation of the Minister responsible for the Crown Land (Reserves) Act 1978 and a Minister responsible for administering the Health Services Act 1988 (Health Minister) to confer certain leasing and licensing powers to the Health Minister. Subclause (2) defines land manager for the purposes of new Part 3A as the trustees or a committee of management or, where there are no trustees or committee of management, the Secretary of the Department of Sustainability and Environment. Subclause (2) also defines tour operator licence as a licence granted under new section 21B. Clause 4 amends section 14B(3) of the Crown Land (Reserves) Act 1978 to provide for the Minister to appoint the Chair of an incorporated committee instead of the Governor in Council, for consistency with other provisions relating to the membership of committees of management. Clause 5 removes the requirement that buildings and structures erected under a lease granted by an incorporated committee of management under section 14D(1) of the Crown Land (Reserves) Act 1978 must become the property of the incorporated committee of management. This will allow the parties to the lease to negotiate ownership of those assets in certain circumstances. 2

 


 

Clause 6 amends section 15 of the Crown Land (Reserves) Act 1978, which specifies the general powers of a committee of management. This is a consequence of new section 17CC, which provides for the Minister to transfer the management of a lease to a committee of management where the Minister has granted a long term lease of up to 65 years in respect of land managed by the committee of management. Clause 7 removes the requirement that buildings and structures erected under a tenancy agreement granted by a committee of management under section 17 of the Crown Land (Reserves) Act 1978 become the property of the committee of management. This will allow the parties to the lease to negotiate ownership of those assets in certain circumstances. Clause 8 inserts new section 17AB into the Crown Land (Reserves) Act 1978, which allows the Governor in Council by Order on the joint recommendation of the Minister responsible for the Crown Land (Reserves) Act 1978 and the Health Minister to confer leasing and licensing powers under sections 17B and 17D of the Crown Land (Reserves) Act 1978 to the Health Minister in respect of a specified area of land. New section 17AB(5) provides that an Order in Council must specify the land to which the Order applies, the leasing and licensing powers to be conferred on the Health Minister and the period for which the Order will be in force. The Minister responsible for administering the Crown Land (Reserves) Act 1978 will continue to have all other powers that are not specifically conferred on the Health Minister. A committee of management must notify the Department of Sustainability and Environment if it has entered into a lease or licence with the approval of the Health Minister. New section 17AB(9) provides that the Minister responsible for the Act cannot exercise a power that has been conferred onto the Health Minister by Order, while that Order remains in force. Clause 9 increases the licence term from three years to ten years for licences granted under section 17B(1) of the Crown Land (Reserves) Act 1978. This clause also makes consequential amendments as a result of clause 8 by amending references to the Minister to include reference to the responsible Minister as defined in clause 3. Clause 10 inserts new section 17BAA into the Crown Land (Reserves) Act 1978 which allows for trustees or a committee of management to grant a licence for a term of more than ten years where necessary to ensure the proposed licensee has access to adjacent land that is leased by the proposed licensee and 3

 


 

managed by the trustees or committee of management. New section 17BAA(3) provides that if there are no trustees or committee of management, the Secretary, or a person authorised by the Secretary, with the approval of the Minister may grant the licence. A licence cannot be granted for more than 21 years, or the remaining term of the lease, whichever is the lesser. A licence can only be granted in these circumstances if the purpose of the lease is not detrimental to the purpose for which the land is reserved. Clause 11 inserts new sections 17CA, 17CB and 17CC into the Crown Land (Reserves) Act 1978. These sections allow the Minister to grant leases for more than 21 years (the current maximum) and up to 65 years where satisfied that the proposed use, development, improvement or works that are specified in the lease are of a substantial nature, of a value that justifies the longer term lease and it is in the public interest to grant the lease. A lease must not be granted if the purpose for which it is granted is detrimental to the purpose for which the land is reserved. A lease must not be granted in respect of land reserved under section 4(1)(l), (m), (n) or (o) of the Crown Land (Reserves) Act 1978 or specified in Part 1 or Part 3 of the Fifth Schedule to that Act. This land includes land of particular ecological or conservational significance such as nature conservation reserves and wildlife habitat. A lease must not be granted in respect of land reserved for a purpose specified in section 4(1)(w) or (ze) of the Crown Land (Reserves) Act 1978 or land deemed to be reserved for the protection of the coastline unless the Minister has, by determination published in the Government Gazette, given notice of intention to lease the land, has laid the determination before each House of Parliament and the determination is not disallowed by Parliament. This land includes parks, gardens, ornamental plantations and coastal land. Subsections (6) and (7) of new section 17CA provide for the Minister, for the purposes of leasing reserved Crown land, to enter into an agreement to lease that land. An agreement to lease must be consistent with the Act and on terms that would be permitted under any lease granted under new section 17CA. New section 17CA(7) provides that where the agreement to lease gives the right to occupy the land for a period of time, that period, when added to the term of the lease entered into must not exceed the maximum lease term of 65 years. 4

 


 

New section 17CB provides for the disallowance, in whole or in part, of a determination laid before Parliament under section 17CA(4). New section 17CB(1)(a) provides that notice of a resolution to disallow a determination must be given in a House of Parliament within 5 sitting days after the determination is laid before the House. New section 17CB(1)(b) provides that a determination is disallowed if the resolution is passed by the House of Parliament within 10 sitting days after giving notice of the resolution. New section 17CB(4) provides that the prorogation or dissolution of Parliament does not affect the power to pass a resolution or the number of sitting days. New section 17CC provides for the Minister, when granting a lease under new section 17CA(1) to transfer management of the lease to the trustees or committee of management. New section 17CC(1) requires the Minister to consult with trustees or a committee of management before leasing land managed by trustees or a committee of management under section 17CA(1). Section 17CA (3) provides that the power to manage a lease does include a power to vary, terminate or amend the lease. If permitted by the lease, the trustees or committee of management may collect revenue from the lease and expend it within the reserve for which it is responsible. Clause 12 substitutes section 17D(1) of the Crown Land (Reserves) Act 1978. New subsections (1B) and (1C) provide for the trustees or committee of management, or the responsible Minister if there are no trustees or committee of management, to enter into an agreement to lease land. An agreement to lease must be consistent with the Act and on terms that would be permitted under any lease granted under new section 17D(2). New subsection (1C) provides that where the agreement to lease gives the right to occupy the land for a period of time, that period, when added to the term of the lease entered into must not exceed the maximum lease term of 21 years. Subclauses (3) to (9) make consequential amendments as a result of restructuring the section and the amendment in clause 8, which allows the Governor in Council by Order on the joint recommendation of the Minister responsible for the Crown Land (Reserves) Act 1978 and the Health Minister to confer certain leasing and licensing powers to the Health Minister. Clause 13 amends section 17DA(3) of the Crown Land (Reserves) Act 1978 to update references to the Subordinate Legislation Act 1962 so that they instead refer to the Subordinate Legislation Act 1994, which replaced that Act. 5

 


 

Clause 14 inserts new section 17G into the Crown Land (Reserves) Act 1978 to provide for a lease to require a lessee to restore a site after the expiry of a lease. Clause 15 inserts new Part 3A into the Crown Land (Reserves) Act 1978, which establishes a new licensing scheme for tour operators and activity providers on reserved Crown land. New section 21A makes it an offence to conduct an organised tour or recreational activity for profit on reserved Crown land unless that person holds a tour operator licence. New section 21A(2) provides that the offence does not apply to a person who holds another type of licence or permit under the Act or regulations, or a person who leases the land on which the activity will take place. New section 21A(3) provides for the Governor in Council to exempt classes of person from the requirement to obtain a tour operator licence by Order in Council. The Order must be on the recommendation of the Minister and published in the Government Gazette. New section 21B provides for the land manager, with the approval in writing of the Minister, to grant a tour operator licence for a period of no more than 10 years. New section 21C provides for a person to apply for a tour operator licence. New section 21C(2) specifies that an application must be accompanied by the fee payable for the first year of the licence as determined in accordance with the regulations (unless the regulations otherwise provide). New section 21C(3) provides for the fee to be refunded in the licence is not granted. New section 21D provides for the licence holder to pay an annual licence fee determined in accordance with the regulations. The fee is payable at the time specified in the regulations. New section 21E provides for licence conditions to be determined by the land manager or prescribed in regulations. New section 21F makes it an offence to breach a condition of a tour operator licence. The penalty for a natural person is 20 penalty units. The penalty for a body corporate is 100 penalty units. New section 21G provides for the holder of a tour operator licence to apply to the land manager for a variation of the licence or a condition of the licence. The land manager may vary the licence, either on application or on his or her own motion if of the opinion that a variation is required. New sections 21G(3) and (5) specify that the variation has effect on the land manager giving written notice to the licence holder. 6

 


 

New section 21H provides for the land manager to suspend a tour operator licence by notice in writing given to the licence holder. The land manager may only suspend a licence if satisfied that there are reasonable grounds to do so. New section 21H(2) provides that a suspension has effect from the time specified in the notice (which cannot be earlier than the day after the day on which the notice is given). The suspension has effect for the period specified in the notice, which cannot be more than 90 days. New section 21H(3) provides that a notice of suspension must state that the licence holder may make submissions regarding the suspension and specify when any submissions must be made. New section 21I provides for a licence holder whose licence has been suspended to make submissions in respect of that suspension within the period specified in the notice of suspension given under new section 21H. New sections 21H(2) and (3) provide that the land manager must consider any submissions received and review the decision to suspend the licence. Section 21H(4) requires the land manager to notify the licence holder of the outcome of the review. New section 21J provides for a land manager to cancel a tour operator licence if satisfied on reasonable grounds that the licence holder has been found guilty of an offence against the Act or regulations or has breached a condition of the licence. New section 21J(2) provides that before cancelling a licence the land manager must notify the licence holder of the proposed cancellation and allow the licence holder the opportunity to make oral or written submissions within a period specified in the notice. New section 21J(4) provides that the land manager must have regard to any submissions before deciding whether or not to cancel the licence must notify the licence holder of that decision. Clause 16 inserts new section 31 into the Crown Land (Reserves) Act 1978 which provides for the Governor in Council to make regulations prescribing licence fees and licence conditions for the purposes of tour operator licences issued under new Part 3A. Clause 17 inserts new Division 7 in Part 6 of the Crown Land (Reserves) Act 1978, which provides for transitional arrangements to the new tour operator licensing scheme. It ensures that a person who has applied for a licence within four months of the commencement of clause 15, which commences on a day to be proclaimed or by 1 July 2011 if not proclaimed before then, will not be guilty of an offence until the application is finally determined. 7

 


 

PART 3--AMENDMENT OF THE FORESTS ACT 1958 Clause 18 inserts a definition of tour operator licence into section 3(1) of the Forests Act 1958 which means a licence granted under section 57F. Clause 19 substitutes section 51 of the Forests Act 1958 to provide for the Minister instead of the Governor in Council, to grant leases. This will modernise the provision and provide consistency with licensing provisions in other legislation governing the administration of Crown land. The substituted section also allows the Minister to lease land for more than the current maximum of 21 years and up to 65 years where satisfied that the proposed use, development, improvement or works that are specified in the lease are of a substantial nature, of a value that justifies the longer term lease and it is in the public interest to grant the lease. New sections 51(4) and (5) provide for the Minister to enter into an agreement to lease land. An agreement to lease must be consistent with the Act and on terms that would be permitted under any lease granted under section 51. Section 51(5) provides that where the agreement to lease gives the right to occupy the land for a period of time, that period, when added to the term of the lease entered into must not exceed the maximum lease term of 65 years. Clause 20 substitutes section 52(1) of the Forests Act 1958 to provide for the Minister, instead of the Governor in Council, to grant licences and permits. This will modernise the provision and provide consistency with licensing provisions in other legislation governing the administration of Crown land. Clause 21 inserts new provisions in the Forests Act 1958 which establishes a new licensing scheme for tour operators and activity providers. New section 57E makes it an offence to conduct an organised tour or recreational activity for profit on reserved Crown land unless that person holds a tour operator licence. New section 57E(2) provides that the offence does not apply to a person who holds another type of licence or permit under the Act or regulations, or a person who leases the land on which the activity will take place. New section 57E(3) provides for the Governor in Council to exempt classes of person from the requirement to obtain a tour operator licence by Order in Council. The Order must be on the recommendation of the Minister and published in the Government Gazette. 8

 


 

New section 57F provides for the Secretary to grant a tour operator licence for a period of no more than 10 years. New section 57G provides for a person to apply for a tour operator licence. New section 57G(2) specifies that an application must be accompanied by the fee payable for the first year of the licence as determined in accordance with the regulations (unless the regulations otherwise provide). New section 57G(3) provides for the fee to be refunded in the licence is not granted. New section 57H provides for the licence holder to pay an annual licence fee determined in accordance with the regulations. The fee is payable at the time specified in the regulations. New section 57I provides for licence conditions to be determined by the Secretary or prescribed in regulations. New section 57J makes it an offence to breach a condition of a tour operator licence. The penalty for a natural person is 20 penalty units. The penalty for a body corporate is 100 penalty units. New section 57K provides for the holder of a tour operator licence to apply to the Secretary for a variation of the licence or a condition of the licence. The Secretary may vary the licence, either on application or on his or her own motion if of the opinion that a variation is required. New sections 57K(3) and (5) specify that the variation has effect on the land manager giving written notice to the licence holder. New section 57L provides for the Secretary to suspend a tour operator licence by notice in writing given to the licence holder. The Secretary may only suspend a licence if satisfied that there are reasonable grounds to do so. New section 57L(2) provides that a suspension has effect from the time specified in the notice (which cannot be earlier than the day after the day on which the notice is given). The suspension has effect for the period specified in the notice, which cannot be more than 90 days. New section 57L(3) provides that a notice of suspension must state that the licence holder may make submissions regarding the suspension and specify when any submissions must be made. New section 57M provides for a licence holder whose licence has been suspended to make submissions in respect of that suspension within the period specified in the notice of suspension given under new section 21H. New sections 57M(2) and (3) provide that the Secretary must consider any submissions received and review the decision to suspend the licence. 9

 


 

New section 57M(4) requires the Secretary to notify the licence holder of the outcome of the review. New section 57N provides for a Secretary to cancel a tour operator licence if satisfied on reasonable grounds that the licence holder has been found guilty of an offence against the Act or regulations or has breached a condition of the licence. New section 57N(2) provides that before cancelling a licence the Secretary must notify the licence holder of the proposed cancellation and allow the licence holder the opportunity to make oral or written submissions within a period specified in the notice. New section 57N(4) provides that the Secretary must have regard to any submissions before deciding whether or not to cancel the licence must notify the licence holder of that decision. Clause 22 makes a consequential amendment to the offence in section 96(h) of the Forests Act 1958 in order to exclude its application to the new tour operator licences. The new tour operator licence scheme provides for a specific offence for operating an organised tour or recreational activity in a reserved forest without a licence. Clause 23 inserts new section 100A in the Forests Act 1958 which provides for the Governor in Council to make regulations prescribing licence fees and licence conditions for the purposes of tour operator licences issued under new sections 57E to 57N. Clause 24 inserts new section 101A in the Forests Act 1958 which provides for transitional arrangements to the new tour operator licensing scheme. It ensures that a person who has applied for a licence within four months of the commencement of clause 21, which commences on a day to be proclaimed or by 1 July 2011 if not proclaimed before then, will not be guilty of an offence until the application is finally determined. PART 4--AMENDMENT OF THE LAND ACT 1958 Clause 25 inserts a definition of tour operator licence into section 2A of the Land Act 1958 which means a licence granted under section 140I. Clause 26 amends section 12 of the Land Act 1958 to clarify that the Minister, as well as the Governor in Council, may convey land under Part 1 of the Land Act 1958. This is consistent with specific leasing and licensing provisions in that part of the Act. Clause 27 inserts new subsections in section 134 of the Land Act 1958 to provide for the Minister to enter into an agreement to lease land. An agreement to lease must be consistent with the Act and on terms that would be permitted under any lease granted under 10

 


 

section 134. New subsection (1B) provides that where the agreement to lease gives the right to occupy the land for a period of time, that period, when added to the term of the lease entered into must not exceed the maximum lease term under subdivision 1. Subclause (2) makes a minor consequential amendment to section 134(2) of the Land Act 1958. Clause 28 substitutes section 137AA(3) of the Land Act 1958 to clarify that the power for the Minister to grant leases for a term more than 50 years and up to 99 years, if satisfied that a building is of a substantial nature and of a value which justifies the lease term, includes structures and improvements as well as buildings. Subclause (2) clarifies that the leasing provision in section 137AA(4) does not override more specific provisions in other Acts. Clause 29 amends section 140 of the Land Act 1958 to provide that despite the current maximum licence term of 10 years for a licence granted under section 138, a licence can be granted for longer than 10 years if necessary to ensure the proposed licensee has continued access to adjacent land which the proposed licensee leases. New section 140(3) provides that the maximum licence term for such a licence is 21 years, or the term of the lease of the adjacent land, whichever is the lesser. Clause 30 inserts new provisions into the Land Act 1958 which establish a new licensing scheme for tour operators and activity providers on Crown land. New section 140H makes it an offence to conduct an organised tour or recreational activity for profit on reserved Crown land unless that person holds a tour operator licence. New section 140H(2) provides that the offence does not apply to a person who holds another type of licence or permit under the Act or regulations, or a person who leases the land on which the activity will take place. New section 140H(3) provides for the Governor in Council to exempt classes of person from the requirement to obtain a tour operator licence by Order in Council. The Order must be on the recommendation of the Minister and published in the Government Gazette. New section 140I provides for the Minister, or a person authorised by the Minister, to grant a tour operator licence for a period of no more than 10 years. 11

 


 

New section 140J provides for a person to apply for a tour operator licence. New section 140J(2) specifies that an application must be accompanied by the fee payable for the first year of the licence as determined in accordance with the regulations (unless the regulations otherwise provide). New section 140J(3) provides for the fee to be refunded in the licence is not granted. New section 140K provides for the licence holder to pay an annual licence fee determined in accordance with the regulations. The fee is payable at the time specified in the regulations. New section 140L provides for licence conditions to be determined by the land manager or prescribed in regulations. New section 140M makes it an offence to breach a condition of a tour operator licence. The penalty for a natural person is 20 penalty units. The penalty for a body corporate is 100 penalty units. New section 140N provides for the holder of a tour operator licence to apply to the Minister for a variation of the licence or a condition of the licence. The Minister, or a person authorised by the Minister, may vary the licence, either on application or on his or her own motion if of the opinion that a variation is required. New sections 140N(3) and (5) specify that the variation has effect on the Minister, or a person authorised by the Minister, giving written notice to the licence holder. New section 140O provides for the Minister, or a person authorised by the Minister, to suspend a tour operator licence by notice in writing given to the licence holder. The Minister, or a person authorised by the Minister, may only suspend a licence if satisfied that there are reasonable grounds to do so. New section 140O(2) provides that a suspension has effect from the time specified in the notice (which cannot be earlier than the day after the day on which the notice is given). The suspension has effect for the period specified in the notice, which cannot be more than 90 days. New section 140O(3) provides that a notice of suspension must state that the licence holder may make submissions regarding the suspension and specify when any submissions must be made. New section 140P provides for a licence holder whose licence has been suspended to make submissions in respect of that suspension within the period specified in the notice of suspension given under new section 21H. New sections 140P(2) and (3) provide that the Minister, or a person authorised by the Minister, must consider any submissions received and review the decision to suspend the licence. New section 140P(4) requires the 12

 


 

Minister, or a person authorised by the Minister, to notify the licence holder of the outcome of the review. New section 140Q provides for a Minister, or a person authorised by the Minister, to cancel a tour operator licence if satisfied on reasonable grounds that the licence holder has been found guilty of an offence against the Act or regulations or has breached a condition of the licence. New section 140Q(2) provides that before cancelling a licence the Minister, or a person authorised by the Minister, must notify the licence holder of the proposed cancellation and allow the licence holder the opportunity to make oral or written submissions within a period specified in the notice. New section 140Q(4) provides that the Minister, or a person authorised by the Minister, must have regard to any submissions before deciding whether or not to cancel the licence must notify the licence holder of that decision. Clause 31 inserts new section 218 into the Land Act 1958 to allow for a lease to require a lessee to restore a site after the expiry of a lease. Clause 32 amends section 407 of the Land Act 1958 to provide for an unused road licence to be varied in order to avoid the need for the licence to be cancelled and then re-issued with the required change. Clause 33 inserts new section 413A into the Land Act 1958 which provides for the Governor in Council to make regulations prescribing licence fees and licence conditions for the purposes of tour operator licences issued under new sections 140H to 140Q. Clause 34 inserts new Part XV in the Land Act 1958 which provides for transitional provisions. New section 415 provides that any relevant lease in force immediately before the commencement of clause 28 is taken to be a lease that has always had effect as if clause 28 was already in force. New section 416 provides transitional arrangements to the new tour operator licensing scheme. It ensures that a person who has applied for a licence within four months of the commencement of clause 30, which commences on a day to be proclaimed or by 1 July 2011 if not proclaimed before then, will not be guilty of an offence until the application is finally determined. 13

 


 

PART 5--AMENDMENT OF THE NATIONAL PARKS ACT 1975 Clause 35 inserts a definition of tour operator licence in section 3(1) of the National Parks Act 1975 which means a licence granted under section 27D. Clause 36 amends section 21(1) of the National Parks Act 1975 to clarify that a permit to conduct a trade or business in a park does not include an organised tour or recreational activity conducted for profit. New Division 3A provides for a separate licensing scheme for these activities. Clause 37 inserts new Division 3A in the National Parks Act 1975 which establish a new licensing scheme for tour operators and activity providers on land administered under the National Parks Act 1975. New section 27C makes it an offence to conduct an organised tour or recreational activity for profit on reserved Crown land unless that person holds a tour operator licence. New section 27C(2) provides that the offence does not apply to a person who holds another type of licence or permit under the Act or regulations, or a person who leases the land on which the activity will take place. New section 27C(3) provides for the Governor in Council to exempt classes of person from the requirement to obtain a tour operator licence by Order in Council. The Order must be on the recommendation of the Minister and published in the Government Gazette. New section 27D provides for Secretary to grant a tour operator licence for a period of no more than 10 years. New section 27E provides for a person to apply for a tour operator licence. New section 27E(2) specifies that an application must be accompanied by the fee payable for the first year of the licence as determined in accordance with the regulations (unless the regulations otherwise provide). New section 27E(3) provides for the fee to be refunded in the licence is not granted. New section 27F provides for the licence holder to pay an annual licence fee determined in accordance with the regulations. The fee is payable at the time specified in the regulations. New section 27G provides for licence conditions to be determined by the Secretary or prescribed in regulations. 14

 


 

New section 27H makes it an offence to breach a condition of a tour operator licence. The penalty for a natural person is 20 penalty units. The penalty for a body corporate is 100 penalty units. New section 27I provides for the holder of a tour operator licence to apply to the Secretary for a variation of the licence or a condition of the licence. The Secretary may vary the licence, either on application or on his or her own motion if of the opinion that a variation is required. New sections 27I(3) and (5) specify that the variation has effect on the land manager giving written notice to the licence holder. New section 27J provides for the Secretary to suspend a tour operator licence by notice in writing given to the licence holder. The Secretary may only suspend a licence if satisfied that there are reasonable grounds to do so. New section 27J(2) provides that a suspension has effect from the time specified in the notice (which cannot be earlier than the day after the day on which the notice is given). The suspension has effect for the period specified in the notice, which cannot be more than 90 days. New section 27J(3) provides that a notice of suspension must state that the licence holder may make submissions regarding the suspension and specify when any submissions must be made. New section 27K provides for a licence holder whose licence has been suspended to make submissions in respect of that suspension within the period specified in the notice of suspension given under new section 21H. New sections 27K(2) and (3) provide that the Secretary must consider any submissions received and review the decision to suspend the licence. New section 27K(4) requires the Secretary to notify the licence holder of the outcome of the review. New section 27L provides for a Secretary to cancel a tour operator licence if satisfied on reasonable grounds that the licence holder has been found guilty of an offence against the Act or regulations or has breached a condition of the licence. New section 27L(2) provides that before cancelling a licence the Secretary must notify the licence holder of the proposed cancellation and allow the licence holder the opportunity to make oral or written submissions within a period specified in the notice. New section 27L(4) provides that the Secretary must have regard to any submissions before deciding whether or not to cancel the licence must notify the licence holder of that decision. 15

 


 

Clause 38 inserts a new subsection to section 43 of the National Parks Act 1975 to clarify that a trade or business in a park does not include an organised tour or recreational activity conducted for profit. New Division 3A provides for a separate licensing scheme for these activities. Clause 39 inserts new section 48AA in the National Parks Act 1975 which provides for the Governor in Council to make regulations prescribing licence fees and licence conditions for the purposes of tour operator licences issued under new sections 27C to 27L. Clause 40 inserts new sections 76 and 77 in the National Parks Act 1975 which provides for transitional arrangements to the new tour operator licensing scheme. It ensures that a person who has applied for a licence within four months of the commencement of clause 37, which commences on a day to be proclaimed or on 1 July 2011 it not proclaimed earlier, will not be guilty of an offence until the application is finally determined. PART 6--AMENDMENT OF THE WILDLIFE ACT 1975 Clause 41 inserts a definition of tour operator licence in section 3 of the Wildlife Act 1975 which means a licence granted under section 21B. Clause 42 inserts new Part IIA in the Wildlife Act 1975 which establishes a new licensing scheme for tour operators and activity providers on state wildlife reserves. New section 21A makes it an offence to conduct an organised tour or recreational activity for profit on reserved Crown land unless that person holds a tour operator licence. New section 21A(2) provides that the offence does not apply to a person who holds another type of licence or permit under the Act or regulations, or a person who leases the land on which the activity will take place. New section 21A(3) provides for the Governor in Council to exempt classes of person from the requirement to obtain a tour operator licence by Order in Council. The Order must be on the recommendation of the Minister and published in the Government Gazette. New section 21B provides for the Secretary to grant a tour operator licence for a period of no more than 10 years. New section 21C provides for a person to apply for a tour operator licence. New section 21C(2) specifies that an application must be accompanied by the fee payable for the first year of the licence as determined in accordance with the regulations (unless the regulations otherwise provide). 16

 


 

New section 21C(3) provides for the fee to be refunded in the licence is not granted. New section 21D provides for the licence holder to pay an annual licence fee determined in accordance with the regulations. The fee is payable at the time specified in the regulations. New section 21E provides for licence conditions to be determined by the land manager or prescribed in regulations. New section 21F makes it an offence to breach a condition of a tour operator licence. The penalty for a natural person is 20 penalty units. The penalty for a body corporate is 100 penalty units. New section 21G provides for the holder of a tour operator licence to apply to the Secretary for a variation of the licence or a condition of the licence. The Secretary may vary the licence, either on application or on his or her own motion if of the opinion that a variation is required. New sections 21G(3) and (5) specify that the variation has effect on the land manager giving written notice to the licence holder. New section 21H provides for the Secretary to suspend a tour operator licence by notice in writing given to the licence holder. The land manager may only suspend a licence if satisfied that there are reasonable grounds to do so. New section 21H(2) provides that a suspension has effect from the time specified in the notice (which cannot be earlier than the day after the day on which the notice is given). The suspension has effect for the period specified in the notice, which cannot be more than 90 days. New section 21H(3) provides that a notice of suspension must state that the licence holder may make submissions regarding the suspension and specify when any submissions must be made. New section 21I provides for a licence holder whose licence has been suspended to make submissions in respect of that suspension within the period specified in the notice of suspension given under new section 21H. New sections 21I(2) and (3) provide that the Secretary must consider any submissions received and review the decision to suspend the licence. New section 21I(4) requires the Secretary to notify the licence holder of the outcome of the review. New section 21J provides for a Secretary to cancel a tour operator licence if satisfied on reasonable grounds that the licence holder has been found guilty of an offence against the Act or regulations or has breached a condition of the licence. New section 21J(2) provides that before cancelling a licence the 17

 


 

Secretary must notify the licence holder of the proposed cancellation and allow the licence holder the opportunity to make oral or written submissions within a period specified in the notice. New section 21J(4) provides that the Secretary must have regard to any submissions before deciding whether or not to cancel the licence must notify the licence holder of that decision. Clause 43 amends section 25A(4) of the Wildlife Act 1975 to reflect that a provision relating to cancellation of certain licences is not relevant to the tour operator licensing scheme, which includes specific cancellation provisions. Clause 44 makes minor consequential amendments to sections 25B(1), 25C(1) and 25(D)(1) of the Wildlife Act 1975 to reflect that tour operator licences are part of a licensing scheme that is separate for other types of licences issued under the Wildlife Act 1975. Clause 45 inserts new section 87A in the Wildlife Act 1975 which provides for the Governor in Council to make regulations prescribing licence fees and licence conditions for the purposes of tour operator licences issued under new sections 21A to 21I. Clause 46 inserts new section 96 in the Wildlife Act 1975 which provides for transitional arrangements to the new tour operator licensing scheme. It ensures that a person who has applied for a licence within four months of the commencement of clause 42, which commences on a day to be proclaimed or on 1 July 2011 if not proclaimed earlier, will not be guilty of an offence until the application is finally determined. PART 7--AMENDMENT OF THE COASTAL MANAGEMENT ACT 1995 Clause 47 inserts a definition of relevant coastal recommendation in section 3 of the Coastal Management Act 1995 which includes recommendations of the Victorian Environmental Assessment Council relating to coastal Crown land that has been accepted by Government under Part 3 of the Victorian Environmental Assessment Council Act 2001, or any recommendation of the Land Conservation Council that relates to coastal Crown land under section 5(1) of the Land Conservation Act 1970 before its repeal. Clause 48 amends section 31(2)(c) of the Coastal Management Act 1995, which relates to contents of a management plan for coastal Crown land, to refer to the definition of relevant coastal recommendation as inserted by clause 47. 18

 


 

Clause 49 amends section 40(2)(c) of the Coastal Management Act 1995, which relates to a decision by the Minister to consent to use or development of Crown land, to refer to the definition of relevant coastal recommendation as inserted by clause 47. PART 8--AMENDMENT OF OTHER ACTS Clause 50 amends section 6(1) of the Conservation, Forests and Lands Act 1987 to substitute a reference to the Department of Natural Resources and Environment with a reference to the Department of Sustainability and Environment. Clause 51 amends section 7(4) of the Conservation, Forests and Lands Act 1987 to substitute a reference to the Department of Natural Resources and Environment with a reference to the Department of Sustainability and Environment. Clause 52 amends section 6(2) of the Land (Revocations and Other Matters) Act 1991 to correct a reference to a folio number of a Crown grant so that the Act, which is now redundant, can be repealed. Clause 53 inserts new section 12 in the Land (Revocations and Other Matters) Act 1991 to correct a reference to a folio number of a Crown grant so that the Act, which is now redundant, can be repealed. Clause 54 amends the First Schedule to the Fraser National Park Act 1957 to correct a reference to a folio number of a Crown grant so that the Act, which is spent, can be repealed. Clause 55 inserts new section 7 to the Fraser National Park Act 1957 to correct a reference to a folio number of a Crown grant so that the Act, which is spent, can be repealed. PART 9--REPEAL OF AMENDING ACT Clause 56 provides for the repeal of the Act on 1 July 2012. This is a standard provision included in all amending legislation. 19

 


 

 


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