Interpretation
3. In this Act, unless the contrary intention appears:
“acquisition of property” has the same meaning as in paragraph 51 (xxxi) of the Constitution;
“Commission” means the Commission of Inquiry into the Lemonthyme and Southern Forests established by this Act;
“Convention” means the Convention for the Protection of the World Cultural and Natural Heritage that has been adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation, being the convention a copy of the English text of which is set out in the Schedule to the World Heritage Properties Conservation Act 1983;
“cultural heritage” has the same meaning as in the Convention;
“excluded area” means an area specified in a notice published in the Gazette under subparagraph 20 (a) (i);
“Federal Court” means the Federal Court of Australia;
“final report” means the report of the Commission required to be given to the Minister under subsection 8 (4);
“forestry operations” means operations for the exploitation of forestry resources;
“High Court” means the High Court of Australia;
“inquiry period” means the period commencing when this Act comes into operation and ending 1 year afterwards;
“interim protection period” means the period commencing at the commencement of the inquiry period and ending at the end of the forty-second day after:
(a) where paragraph (b) does not apply—the end of the inquiry period; or
(b) where, before the last day of the inquiry period, notice of the receipt by the Minister of the final report is published in the Gazette under subparagraph 20 (a) (ii)—the day on which that notice is published;
“interim report” means any report of a kind referred to in paragraph 8 (5) (b);
“just terms” has the same meaning as in paragraph 51 (xxxi) of the Constitution;
“legal practitioner” means a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory;
“Lemonthyme area” means the area whose boundary is described in Schedule 1;
“member” means a member of the Commission and includes the Presiding Member;
“national estate area” means an area:
(a) that has been entered, before the commencement of this Act, in the Register of the National Estate under subsection 23 (1) or 25 (2) of the Australian Heritage Commission Act 1975; or
(b) a description of which has, under subsection 26 (2) of that Act, been entered, before the commencement of this Act, on a list of places that might be entered in the Register of the National Estate;
“natural heritage” has the same meaning as in the Convention;
“nominated world heritage area” means any area of Tasmania that the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article;
“Presiding Member” means the Presiding Member of the Commission;
“protected area” means the Lemonthyme area and the Southern Forests area, other than any part of either area that is an excluded area;
“qualifying area” means so much of any area that is:
(a) wholly or partly within the Lemonthyme area or the Southern Forests area; and
(b) a world heritage area or an area that contributes to the integrity or values of:
(i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or
(ii) a nominated world heritage area;
as is not a nominated world heritage area;
“Southern Forests area” means the area whose boundary is described in Schedule 2;
“world heritage area” means an area that forms part of the cultural heritage or the natural heritage.
Object
4. The object of this Act is to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern Forests area, to Australia’s obligations under the Convention, in particular the obligations to:
(a) identify and delineate the natural heritage and cultural heritage; and
(b) take appropriate measures to protect and conserve that heritage.
Application
5. This Act has extra-territorial operation according to its tenor.
Act to bind Crown
6. This Act binds the Crown in right of the Commonwealth, of each State, of the Northern Territory and of Norfolk Island.
PART II—COMMISSION OF INQUIRY INTO THE LEMONTHYME AND SOUTHERN FORESTS
Establishment of Commission
7. (1) As soon as practicable after the commencement of this Act, a Commission to be known as the Commission of Inquiry into the Lemonthyme and Southern Forests shall be appointed.
(2) The Commission shall consist of the Presiding Member and 2 other members.
(3) The Presiding Member and other members shall be appointed by the Minister by instrument in writing.
Functions
8. (1) The Commission shall, in accordance with this section, inquire into and report on the following matters:
(a) whether there are any qualifying areas;
(b) where there are qualifying areas:
(i) whether there are, within areas of Tasmania that are outside the qualifying areas and are not national estate areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian forestry industry and that would be an environmentally and economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas;
(ii) where there are not—whether there are, within areas of Tasmania (including national estate areas other than nominated world heritage areas) that are outside the qualifying areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian forestry industry and that would be an environmentally and economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas; and
(iii) where there are not—which of the means of exploiting the forestry resources of Tasmania (including the qualifying areas but not including any nominated world heritage areas) without causing any detriment to the Tasmanian forestry industry will cause least damage to the qualifying areas;
(c) where the first-mentioned forestry resources in subparagraph (b) (i) or (ii) are not capable of exploitation in the way referred to in that subparagraph, whether those forestry resources are capable of
exploitation in ways that are environmentally and economically prudent and feasible alternatives to the exploitation of any forestry resources in the qualifying areas, and, if so, which of those ways will cause the least detriment to the Tasmanian forestry industry;
(d) where the first-mentioned forestry resources in subparagraph (b) (ii) are capable of exploitation in the way referred to in that subparagraph, whether that exploitation, in so far as it affects national estate areas, is, consistent with proper forestry management, able to be delayed, and, if so, the extent of that delay;
(e) where a means of exploiting the forestry resources of Tasmania that will cause least damage to any qualifying areas is identified under subparagraph (b) (iii), whether that exploitation, in so far as it affects either national estate areas or qualifying areas, or both, is, consistent with proper forestry management, able to be delayed, and, if so, the extent of that delay.
(2) For the purposes of paragraphs (1) (b) and (c), the exploitation of forestry resources shall be taken to cause detriment to the Tasmanian forestry industry if that exploitation would, having regard to long-term trends in forestry operations in Tasmania as a whole and in the employment of persons in those operations, cause a diminution of those operations or that employment.
(3) In performing its functions under subsection (1), the Commission shall take account of:
(a) the potential for changes in forestry industry technology, in forestry plantations, in the extent of thinning of regrowth forests and in operations to reduce wastage of forestry resources; and
(b) the need to ensure sustainable forest yields and the application of proper forestry management techniques.
(4) The Commission shall report to the Minister the results of its inquiry before the end of the inquiry period.
(5) The Commission shall:
(a) in the performance of its functions under this section, give priority to identifying any part or parts of the Lemonthyme area and the Southern Forests area that are definitely not qualifying areas; and
(b) as soon as practicable, report to the Minister the identification of any such part or parts, specifying the area concerned.
Death or incapacity of member
9. (1) If a member dies, becomes physically or mentally incapable of performing the functions of a member or, by notice in writing to the Minister, resigns his or her appointment, the Minister shall, by instrument in writing:
(a) where a declaration has not previously been made under this paragraph—either appoint a person to take the place of the member or declare that the remaining 2 members are thereafter to constitute the Commission; or
(b) where a declaration has previously been made under paragraph (a)—appoint a person to take the place of the member.
(2) Where the Minister makes a declaration in accordance with paragraph (1) (a), this Act has effect as if subsection 7 (2) required the appointment of only the remaining 2 members referred to in the declaration.
(3) Where:
(a) the Presiding Member dies, becomes physically or mentally incapable of performing the functions of a member or, by notice in writing to the Minister, resigns his or her appointment; and
(b) the Minister makes a declaration under paragraph (1) (a);
the Minister shall appoint one of the 2 members thereafter constituting the Commission to be the Presiding Member.
(4) The exercise of the powers, or the performance of the functions, of the Commission is not affected by reason only that there is a vacancy in the membership of the Commission.
Hearings
10. (1) For the purposes of its inquiry, the Commission may hold hearings.
(2) Hearings before the Commission may be held at such places, whether within or outside Australia, as the Presiding Member determines.
(3) The Presiding Member shall preside at a hearing before the Commission.
(4) Subject to subsection 6d (2) of the Royal Commissions Act 1902 in its application in accordance with section 13 of this Act, hearings before the Commission shall be held in public.
(5) Where the Commission proposes to hold a hearing in public, the Commission shall, if it is practicable to do so, give reasonable notice, by advertisement published in such newspapers as it thinks necessary, of its intention to hold the hearing and of the time and place at which the hearing is to be held.
(6) A person giving evidence at a hearing before the Commission may be represented by a legal practitioner or other person.
(7) Subject to this Act, the procedure at a hearing before the Commission shall be such as the Commission directs.
Decision of questions
11. (1) Questions arising before the Commission shall be decided in accordance with the opinion of a majority of the members or, if the Commission consists of 2 members and those members are divided in opinion, in accordance with the opinion of the Presiding Member.
(2) Where the members are not unanimous in opinion on a question arising before the Commission, there shall, if a member so requires, be recorded in the appropriate report of the Commission particulars of the opinions of the members on that question.
Commission not bound by rules of evidence
12. The Commission is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks fit.
Application of Royal Commissions Act
13. (1) Subject to this section, the Royal Commissions Act 1902 applies in relation to the inquiry by the Commission as if:
(a) the Commission were a Commission of inquiry issued by the Governor-General by Letters Patent pursuant to that Act; and
(b) that Act bound the Crown in right of the Commonwealth, of each State, of the Northern Territory and of Norfolk Island.
(2) Nothing in subsection (1) renders the Crown in the right of the Commonwealth, of a State, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.
(3) Section 2 of the Royal Commissions Act 1902 in its application in accordance with subsection (1) of this section has effect as if the following subsection were inserted after subsection (1) of that section:
“(1a) Without limiting the generality of subsection (1), where a person keeps a record of information by means of a mechanical, electronic or other device, a member of a Commission may summon the person to appear before the Commission to give evidence and produce written answers obtained from that record of information to questions set out in the summons.”.
(4) Section 6d of the Royal Commissions Act 1902 in its application in accordance with subsection (1) of this section has effect as if subsection (5) of that section were omitted.
(5) Section 6fa of the Royal Commissions Act 1902 in its application in accordance with subsection (1) of this section has effect as if “or other person” were inserted after “legal practitioner” (last occurring).
(6) Section 7 of the Royal Commissions Act 1902 in its application in accordance with subsection (1) of this section has effect as if “a legal practitioner or other person” were inserted in subsection (3) of that section before “appearing on behalf of a person”.
Entry and inspection of certain areas
14. For the purposes of performing his or her functions or exercising his or her powers under this Act, a member or another person authorised in writing for the purposes of this section by a member may, with such assistance, and by such force, as is necessary and reasonable, enter and inspect:
(a) the Lemonthyme area and the Southern Forests area;
(b) any nominated world heritage area; and
(c) any other part of Tasmania that the member or other person considers may be part of a qualifying area or contain forestry resources.
Remuneration and allowances
15. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration is in operation, the member shall be paid such remuneration as is prescribed.
(2) A member shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunals Act 1973.
(4) A member ceases to hold office as a member at the end of the inquiry period or, if the final report of the Commission is given to the Minister before the end of that period, when that report is given to the Minister.
PART III—INTERIM PROTECTION OF CERTAIN AREAS
Unlawful acts
16. (1) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, to do any of the following acts during the interim protection period:
(a) for the purposes of, or in the course of carrying out, forestry operations, to kill, cut down or damage a tree in, or remove a tree or a part of a tree from, the protected area;
(b) to construct or establish a road or vehicular track within the protected area;
(c) to carry out any excavation works within the protected area;
(d) to do any other act prescribed for the purposes of this paragraph, being an act capable of adversely affecting the protected area.
(2) Except with the consent in writing of the Minister, it is unlawful for a person, whether personally or through a servant or agent, during the interim protection period to permit, authorise, direct or order or to purport to permit, authorise, direct or order any person to do an act that is unlawful under subsection (1).
(3) Except with the consent of the Minister, it is unlawful for a person who is the owner or occupier of any part of the protected area to fail to take reasonable steps to prevent the doing within that part of the protected area of any act that is unlawful under subsection (1).
Enforcement
17. (1) The High Court or the Federal Court may, on the application of the Minister, grant an injunction restraining a person from doing an act that is unlawful under section 16.
(2) Where, under subsection (1), an application is made to the High Court or the Federal Court for an injunction restraining a person from doing an act, the High Court or the Federal Court, as the case may be, may, if in the opinion of the Court it is desirable to do so, before determining the application, grant an interim injunction restraining the person from doing that act pending the determination of the application.
(3) An injunction or interim injunction restraining a person from doing an act may be granted under this section:
(a) whether or not it appears to the Court that the person intends to do again, or to continue to do, an act of that kind;
(b) whether or not the person has previously done an act of that kind; or
(c) whether or not there is an imminent danger of damage to the protected area if the person does an act of that kind.
Consents given under section 16
18. (1) In determining whether or not to give a consent under section 16, the Minister shall have regard only to Australia’s obligations under the Convention.
(2) A consent given by the Minister under section 16 may relate to:
(a) a particular act or particular acts or a particular class or particular classes of acts; or
(b) a particular person or particular persons or a particular class or particular classes of persons.
Compensation
19. (1) Where:
(a) a person refrains from doing an act, being an act of a kind made unlawful by subsection 16 (1), by reason only that:
(i) the act is made unlawful by that subsection; or
(ii) an injunction or interim injunction is granted under section 17 restraining the person from doing the act; and
(b) because the person refrains from doing the act, the person suffers loss or damage;
the Commonwealth is liable to pay compensation to the person in respect of the loss or damage.
(2) Where the owner of any part of the protected area suffers loss or damage because another person refrains, as mentioned in paragraph (1) (a), from doing, in that part of the protected area, an act of a kind referred to in that paragraph, the Commonwealth is liable to pay compensation to the owner in respect of that loss or damage.
(3) Where, but for this subsection, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay compensation to the person in respect of the acquisition.
(4) The amount of compensation payable to a person under this section is such reasonable amount as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.
PART IV—MISCELLANEOUS
Notice of receipt etc., and tabling, of reports
20. Where the Minister receives a report under section 8, the Minister shall:
(a) within 14 days after receiving the report, arrange for notice to be published in the Gazette:
(i) if the report is an interim report—specifying the area identified in the report; or
(ii) if the report is the final report—stating that the report has been received; and
(b) cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
Jurisdiction of courts
21. (1) The Federal Court has jurisdiction with respect to matters arising under sections 17 and 19 and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution and under subsection (2) of this section.
(2) The High Court has jurisdiction with respect to matters arising under section 17.
Saving of other laws
22. This Act shall be read and construed as being in addition to, and not in derogation of or in substitution for, any other law of the Commonwealth, whether passed or made before or after the commencement of this Act.
Delegation by Minister
23. (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to the Secretary to the Department all or any of the powers of the Minister under section 16.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
Regulations
24. The Governor-General may make regulations, not inconsistent with this Act, 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.
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SCHEDULE 1 Section 3
LEMONTHYME AREA
Preamble
All references used in the following boundary description are taken from 1:100,000 scale Topographic Map, Land Tenure Index Series, published by the Lands Department, Hobart. Bearings and distances stated are plane grid bearings and distances derived from Australian Map Grid Coordinates. The map used is:
Name | Sheet No. | Edition | Year |
Mersey | LTIS Sheet 8114 | Edition 2 | 1982 |
Boundary
Commencing at a point on the Cradle Mountain-Lake St Clair National Park boundary at an unnamed tributary of the River Forth about 427400E 5387800N and bounded thence by the middle thread of that tributary upstream to the State Forest boundary at about 428950E 5385650N thence southerly to 426800E 5374850N thence easterly to 427700E 5374900N thence on a bearing of 156°30’ for about 2.5 kilometres to a track at about 428700E and 5372550N thence by a straight line southeasterly to the boundary of the Central Plateau Conservation Area at 434050E and about 5368400N thence southwesterly by that boundary to its junction with the Cradle Mountain-Lake St Clair National Park boundary at about 430950E and 5365000N thence by that boundary generally northwesterly, southerly, northerly and westerly to meet a southeastern boundary of the Oakleigh Creek Conservation Area thence by that boundary southerly, northwesterly and northeasterly to its northernmost point thence by the boundary of the Cradle Mountain-Lake St Clair National Park northeasterly to the point of commencement.
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SCHEDULE 2 Section 3
SOUTHERN FORESTS AREA
Preamble
All references used in the following boundary description are taken from 1:100,000 scale Topographic Map, Land Tenure Index Series, published by the Lands Department, Hobart. Bearings and distances stated are plane grid bearings and distances derived from Australian Map Grid Coordinates. The maps used are:
Name | Sheet Nos. | Edition | Year |
Old River | LTIS Sheet 8111 | Edition 1 | 1982 |
Wedge | LTIS Sheet 8112 | Edition 2 | 1984 |
Nive | LTIS Sheet 8113 | Edition 1 | 1982 |
South Cape | LTIS Sheet 8210 | Edition 1 | 1983 |
Huon | LTIS Sheet 8211 | Edition 2 | 1983 |
Tyenna | LTIS Sheet 8212 | Edition 1 | 1982 |
Boundary
Commencing at the westernmost point of the Southwest Conservation Area on Shoemaker Bay at about 473300E 5173000N (8210—South Cape—Edition 1) and thence generally on the south and east by part of the boundary of Southwest Conservation Area to a southeastern boundary of Recherche Bay SRA thence generally on the northeast and northwest by the boundary of Recherche Bay SRA to Cockle Creek thence upstream by the middle thread of Cockle Creek until it bears 99°27’ about 2.13 kilometres from a point at 487400E 5173900N thence by a straight line northwesterly to that point and thence generally on the east by straight lines northerly to 486800E 5177700N northeasterly to 487900E 5179800N northwesterly to 487500E 5180200N southwesterly to 486700E 5180000N northwesterly to 485800E 5183600N thence on a bearing of 6°20’ for about 0.9 kilometres to a boundary of the Southwest Conservation Area (8211—Huon—Edition 2) thence northeasterly by part of that boundary to its intersection with the southwestern boundary of Exit Cave State Reserve thence generally southeasterly and northerly by boundaries of that Reserve to a northeastern corner of that Reserve at about 488300E 5187100N thence northerly and northwesterly by part of the Southwest Conservation Area boundary to 487200E and about 5188250N thence by a straight line northeasterly to 487900E 5189200N thence on a bearing of 308°40’ for about 1.28 kilometres to the boundary of the Southwest Conservation Area thence by that boundary northerly and westerly to 486000E and about 5191000N thence westerly to 485000E 5190800N thence by a straight line northwesterly to the boundary of the Southwest Conservation Area at 484600E and about 5191050N thence by that boundary to 484400E and about 5191550N thence by straight lines northeasterly to 485500E 5192850N northerly to 485600E 5193900N northeasterly to 488000E 5195300N and northerly to the southernmost corner of Hastings Caves State Reserve thence by the boundary of that Reserve generally northeasterly and northwesterly to a northeastern corner of that Reserve at about 488000E 5196650N thence by straight lines northeasterly to 490300E 5199800N northerly to 490400E 5202100N northwesterly to 489000E 5203450N northwesterly to 488000E 5204000N northwesterly to 487400E 5207100N northwesterly to 486800E 5207800N northwesterly to 486200E 5210100N thence on a bearing of 318°49’ for about 1.06 kilometres to the boundary of the Southwest Conservation Area thence generally northerly by that boundary to a northeast boundary of the Hartz Mountains National Park thence generally northwesterly by the boundary of that National Park to its northernmost corner thence by a straight line bearing 321°48’ for about 3 kilometres to the middle thread of the Picton River thence by the middle thread of that river upstream to the middle thread of Farmhouse Creek thence generally southwesterly by the middle thread of that creek to 472000E and about
