Lord Howe Island (Amendment) Act 1967 (NSW)

LORD HOWE ISLAND (AMENDMENT) ACT.

ANNO SEXTO DECIMO

ELIZABETHS II BEGINS

Act No. 66, 1967.

An Act to alter the constitution of the Lord Howe Island Board; to make further provisions in respect of elections held under the Lord Howe Island Act, 1953, as amended by subsequent Acts, and the tenure of land on Lord Howe Island; for these and other purposes to amend that Act, as so amended; to validate certain matters; and for purposes connected therewith. [Assented to, 7th December, 1967.] BE

1>E it enacted by the Queen's Most Excellent Majesty, by *-* and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: —

(1) This Act may be cited as the "Lord Howe Island (Amendment) Act, 1967".

1.

(2) The Lord Howe Island Act, 1953, as amended by subsequent Acts and by this Act, may be cited as the Lord Howe Island Act, 1953-1967.

(3) The Lord Howe Island Act, 1953, as amended by subsequent Acts, is in this Act referred to as the Principal Act.

(4) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.

2. The Principal Act is amended by inserting in the definition of "Islander" in section three after the word "holder" the words ", at any time before that commence­ ment,".

3.      (1) The Principal Act is further amended—

(a) (i) by omitting from paragraph (e) of subsection three of section four the words "a member of the Committee" and by inserting in lieu thereof the words "an Islander";

(ii)

(ii)   by omitting subsection four of the same section and by inserting in lieu thereof the following subsection :—

(4) (a) The person appointed in pursu­ ance of paragraph (e) of subsection three of this section—

(i)   shall be the person elected for the purpose at an election held concur­ rently with each election of the persons referred to in subsection two of section seven of this Act;

(ii)   shall hold office until his successor is appointed; and

(iii)   shall be eligible for re-election. (b) Where a vacancy occurs in the

office of the member of the Board to whom this subsection applies, an election shall be held to fill the vacancy.

Any person so elected shall hold office for the unexpired term of the vacant office but shall be eligible for re-election.

(c) The persons entitled to vote at an election under this subsection shall be the persons entitled to vote at an election under Division 2 of this Part.

(d) The nomination of Islanders for
election pursuant to this subsection, the

appointment of electoral officers, the method

shall be as prescribed. of voting and the conduct of the elections

(b) by inserting in subparagraph (iii) of paragraph (a) of subsection two of section thirty-eight after the word "election" the words "of the person to be appointed a member of the Board in pursuance of paragraph (e) of subsection three of section four of this Act and the election".

(2)

(2) Notwithstanding anything in section four of the Principal Act, as amended by this Act—

(a)	the person who, immediately before the commence­ ment of this Act, held office as a member of the Board in pursuance of paragraph (e) of subsection three of section four of the Principal Act shall con­ tinue to hold office until the appointment of an Islander in pursuance of paragraph (e) of subsec­ tion three of section four of the Principal Act, as amended by this Act; and
(b)	where before that appointment a vacancy occurs in the office of the member of the Board referred to in paragraph (e) of subsection three of section four of the Principal Act, the vacant office shall be filled by the appointment of another member of the Committee nominated by the Minister.

(3) A person who holds office under subsection two of
this section shall be eligible for election under subsection four
of section four of the Principal Act, as amended by this Act.

(4) Nothing in this section shall prejudice or affect in any way the continuity of the body corporate constituted under section four of the Principal Act and it shall continue notwithstanding the provisions of this section.

4.      (1) The Principal Act is further amended—

(a) (i) by inserting next after subsection three of	section seven the following new subsection :—
(3A) Where the Islander appointed to the Board in pursuance of paragraph (e) of sub­ section three of section four of this Act is not one of the four Islanders elected under and in accordance with this Division, the Minister may appoint him as an additional member of

the

the Committee and that person shall be an additional member of the Committee until—

(a)	he ceases to hold office as a member of the Board; or
(b)	he tenders to the Minister his resigna­ tion in writing as a member of the Committee.

(ii)   by omitting subsection five of the same section and by inserting in lieu thereof the following subsections:—

(5) For the purposes of this Division a person over the age of twenty-one years who has been in residence on the Island—

(a)	in the case of the holder of a lease under this Act—for a period of not less than three months immediately before his application for enrolment;
(b)	in the case of an Islander, not being the holder of a lease under this Act— for a period of not less than one year immediately before his application for enrolment; or
(c)	in the case of any other person—for a period of not less than three years immediately before his application for enrolment,

shall, subject to subsection six of this section,

be entitled to be enrolled as an elector.

(6) (a) A person enrolled as an elector

or entitied to be so enrolled shall cease to be

entitled to be so enrolled if—	(i)	in the case of the holder of a lease under this Act or an Islander—he has been absent from the Island for a continuous period of three years; or
(ii)	in the case of any other person—he has been absent from the Island for a con­ tinuous period of one year,

but shall be again entitled to be so enrolled if he subsequently complies with the provisions of subsection five of this section.

(b)

(b) The period referred to in sub­ paragraph (i) or (ii) of paragraph (a) of this subsection may be either—

(i) partly before and partly after; or

(ii) wholly after,

the commencement of the Lord Howe Island

(Amendment) Act, 1967.

(b) by omitting subsection one of section eight and by inserting in lieu thereof the following subsections :—

(1) The Board shall cause to be kept from time to time a roll of electors whose applications for enrolment have been approved whether before or after the commencement of the Lord Howe Island (Amendment) Act, 1967.

(1A) The Board shall cause—

(a) the name of a person who—

(i) dies; or

(ii)   ceases, pursuant to subsection six of section seven of this Act, to be entitled to be enrolled as an elector,

to be removed from the roll; and

(b) such corrections to be made in the roll as may from time to time be necessary.

The regulations may prescribe the procedure to
be observed in relation to removing from the roll

the name of a person pursuant to paragraph (a)

of this subsection.

(2) A person who was, immediately before the commencement of this Act, entitled to be enrolled as an elector pursuant to subsection five of section seven of the Principal Act, shall continue to be so entitled—

(a) notwithstanding the substitution of that subsection by this Act; but

Cb) subject to subsection six of that section as inserted

by this Act.

5 .      The Principal Act is further amended—

(a) by inserting next after section twelve the following new section :—

12A. (1) The Board may, on the application of an Islander, advance moneys to him—

(a)	for the whole or part of the consideration for the transfer of a lease under this Act to him pursuant to section twenty-three of this Act; or
(b)	for the effecting of improvements on land the subject of a lease under section twenty- one of this Act held by him,

on the security of a mortgage of that lease in favour
of the Board.

(2) The Treasurer may from time to time make moneys available to the Board for advances under this section.

(b) (i) by omitting from subsection two of section twenty-three the words "(except by way of release of mortgage) or" and by inserting in lieu thereof the following words :—

", except—

(a) by way of discharge of mortgage; or

(b) to the Board by way of mortgage as security for an advance under section 12A of this Act,

or";

(ii)   by inserting in subsection three of the same section after the word "transfer" the words "(not being a transfer referred to in para­ graph (a) or (b) of subsection two of this section)";

(iii)

(iii)  by inserting next after subsection seven of the same section the following new subsec­ tion :—

(7A) Where the Board is the mortgagee of any lease under this Act, the provisions of subsections two, three, four, five, six and seven of this section shall not have effect in respect of the lease mortgaged, and the follow­ ing provisions shall have effect:—

(a) If the Board as mortgagee enters into possession of the lease under the mortgage, the Board shall not fore­ close the mortgage except with the consent of the Minister for Lands.

(b) The Board as mortgagee—

(i)   shall not transfer the lease except with the consent of the Minister for Lands or by way of discharge of mortgage, or sublet the lease except with that consent; and

(ii)   shall not apply for consent to transfer or sublet to any person other than an Islander unless satisfied that there is no Islander residing on the Island who desires and is in a position to take a transfer or sublease,

lease. as the case may be, of the

(c) Such transfer or subletting shall not be effected, or if effected shall not be valid, unless the consent thereto of the Minister for Lands and, in the case of a transfer or subletting to a person other than an Islander, the approval of the Governor, has been obtained.

(d)

(d) Where the Board as mortgagee applies for consent under this subsection, the Minister for Lands may give his consent, or he may at his discretion refuse his consent.

(c) (i) by omitting from subsection one of section thirty-four the word "There" where secondly occurring and by inserting in lieu thereof the words "Subject to section 34A of this Act, there";

(ii)   by omitting from subsection two of the same section the word "There" and by inserting in lieu thereof the words "Subject to section 34A of this Act, there";

<d) by inserting next after section thirty-four the

following new section :—•

34A. (1) There shall be established and kept in the Treasury an account in special deposits account to be called the "Lord Howe Island Mortgages Account".

There shall be paid to the credit of the Lord

Howe Island Mortgages Account—

(a) all moneys made available to the Board by the Treasurer for advances under section

12A of this Act;

(b) all moneys received by way of repayments

of those advances and interest thereon.

(2) There shall be paid out of the Lord

Howe Island Mortgages Account—

(a)	all moneys advanced under section 12A of this Act;
(b)	such moneys as are required by the Treasurer to be repaid to him from time to time.

6. The Principal Act is further amended—

(a)	by omitting from paragraph (b) of section thirteen the word "require" and by inserting in lieu thereof the words "subject, in the case of a person conduct­ ing a guest-house, to regulations made in pursuance of subparagraph (iv) of paragraph (a) of sub­ section two of section thirty-eight of this Act, require";
(b)	by inserting at the end of paragraph (a) of sub­ section two of section thirty-eight the following new subparagraph :—

(iv)   the licensing, control and regulation of guest-houses on the Island and the licensing of, and the terms and conditions to be observed by, persons operating them.

7. The Principal Act is further amended—

(a)	by inserting in subsection two of section twenty-one after the word "in" the words "or to the effect of";
(b)	by inserting next after section twenty-two the following new section :—

22A. (1) The holder of a lease under this Act may lodge in the prescribed manner an instrument of surrender, in or to the effect of the prescribed form, as to the whole or a part of the land comprised in the lease.

(2>

(2) Subject to paragraph (c) of subsection (4A) of section twenty-three of this Act, the surrender shall take effect on the day of its accept­ ance by the Minister, on the recommendation of the Board.

(3) The Board may determine, demand
and recover the costs, including costs of any
necessary survey, in connection with the surrender.

(c) (i) by inserting in subsection one of section twenty-three after the word "manner" the words "as to the whole or a part of the land comprised in the lease";

(ii)   by inserting at the end of the same subsection the following new paragraph :—

(b) Notwithstanding anything in paragraph (a) of this subsection, a lease shall not be transferred, by way of mortgage or discharge of mortgage, as to part only of the land comprised in the lease.

(iii)   by inserting next after subsection four of the same section the following new subsections :—

(4A) (a) Where, in the case of an applica­ tion for consent to transfer a lease as to the whole of the land comprised in the lease to a person other than an Islander, the Board is prepared to recommend, in accordance with

subsection four of this section, the granting of the application but as to part only of the land

so comprised, the Board may, by notice served on the applicant, state that it is prepared so to recommend if the applicant within three months lodges with the Board an instrument of surrender of such part of the land comprised in the lease as is specified in the notice, being the part as to which the Board is not prepared so to recommend.

(b)

(b) If the applicant within three months lodges with the Board such an instru­ ment of surrender the application may be dealt with as if the applicant had originally applied for consent to the transfer as to the land that would be comprised in the lease after the surrender takes effect.

(c) An instrument of surrender pur­ suant to this subsection shall not take effect until the day upon which the transfer takes effect.

(4B) (a) Where, in accordance with this section, a lease (in this subsection referred tc as "the original lease") is transferred to any person as to part only of the land comprised in the original lease, and the residue of the land comprised in the original lease is retained by the transferor—

(i)  where the original lease was a lease under section twenty-one of this Act, separate leases in or to the effect of the prescribed form shall be issued in respect of the part so transferred and the residue so retained, and the original lease shall be delivered up for cancellation;

(ii)   where the original lease was a lease under section twenty-two of this Act,

held for the balance of the term for

the residue so retained shall be each the lease of the part so transferred and

which the original lease was held
before the transfer;

(iii)   the lease of the part so transferred and the residue so retained shall, as from the transfer, be each held in all respects as a separate lease, but shall, subject to subsection eight of section

twenty-one.

twenty-one, or subsection seven of section twenty-two, as the case may require, and to section twenty-five, of this Act, be subject to such conditions, reservations or provisions as applied in respect of the original lease immedi­ ately before the transfer; and

(iv)   the Board may determine, demand and recover from the transferor the costs of any necessary survey in connection with the transfer.

(b) The Minister for Lands on the recommendation of the Board may, when giving his consent to an application to transfer a lease as to part of the land comprised in the lease, exclude from any of the lands comprised in the original lease any areas required for providing roads of access to the part so trans­ ferred or the residue so retained or both.

Any such exclusion shall not take effect until the day on which the transfer takes effect, on which day the areas so excluded shall be deemed to have been surrendered.

The Principal Act is further amended—

(a) (i) by inserting in subsection one of section

twenty-three after the word "Board" where firstly occurring the words "and, in the case only of a lease of land used for commercial purposes, a sum for the goodwill of the business conducted thereon, being goodwill transferred to the transferee in connection with the transfer of the lease or accruing to him in consequence thereof;

(ii)

(ii)   by inserting in the same subsection after the word "value" where secondly occurring the words "and, as the case may require, such sum for goodwill";

(b) by inserting in section twenty-four after the word "improvements" the words "or of sum for good­ will".

The Principal Act is further amended by inserting next after Division 6 of Part IV the following new Division :—

9.

DIVISION 6A.—Permissive occupancies.

31 A. (1) The Minister for Lands on the recommen­ dation of the Board may grant permissions to occupy vacant Crown lands or Crown lands the subject of a reservation under this Act, whether above or below or beyond high water mark, for such purposes and upon such terms and conditions as he may impose on the recommendation of the Board.

(2) A permission to occupy such Crown lands or a permissive occupancy of Crown lands granted or purporting to have been granted before the commence­ ment of the Lord Howe Island (Amendment) Act, 1967, and whether or not a tenancy was created or purported to have been created thereby, shall be deemed to have

had force and effect subject to the terms and conditions	been validly granted and to have and always to have
thereof.
(3) A permission to occupy Crown lands or a permissive occupancy of Crown lands referred to in subsection two of this section or a permission to occupy Crown lands granted under subsection one of this section shall be terminable at will by the Minister for Lands on the recommendation of the Board.

10. The Principal Act is further amended—

(a)	(i)	by inserting in subsection one of section thirty- two after the words "tree thereon" the words "—or ringbark or otherwise destroy any tree thereon—without lawful authority";
(ii)	by omitting from the same subsection the words "forty dollars" and by inserting in lieu thereof the words "one hundred dollars";
(iii)	by omitting from the same subsection the words "ten dollars" and by inserting in lieu thereof the words "twenty dollars";

(b) (i) by omitting from section thirty-three the words ", and no person shall remove, cut, ringbark or otherwise destroy any such timber unless authorised to do so by the Board or by the conditions of any lease held by such person under this Act";

(ii)   by inserting at the end of the same section the following new subsection :—

(2) No person shall remove, cut, ringbark or otherwise destroy any such timber as is growing on land which becomes the subject of any lease under this Act, unless, being the holder of the lease, he is authorised to do so by the Board or by the conditions of the lease.

A person who contravenes the provisions of
this subsection shall be liable on conviction to
a penalty not exceeding one hundred dollars.

11. The Principal Act is further amended—

(a) (i) by omitting from paragraph (b) of subsection three of section four the words "Colonial Secretary" and by inserting in lieu thereof the word "Minister";

(ii)

(ii)   by omitting from paragraph (d) of the same subsection the words "Secretary for Lands" and by inserting in lieu thereof the words "Minister for Lands";

(b) by omitting paragraph (c) of section five and by inserting in lieu thereof the following paragraph :—

(c) becomes a mentally ill person, a protected person or an incapable person, within the meaning of the Mental Health Act, 1958, as amended by subsequent Acts;

(c)

by omitting from paragraph (b) of subsection four of section eleven the figures "1949" and by inserting in lieu thereof the figures and words "1949, as amended by subsequent Acts";

(d)

by omitting from section nineteen the words "Secretary for Lands" wherever occurring and by inserting in lieu thereof the words "Minister for Lands";

(e)

by omitting from subsection one of section twenty the words "Secretary for Lands" and by inserting in lieu thereof the words "Minister for Lands";

(f)

(i) by omitting from section twenty-one the words "Secretary for Lands" wherever occurring and by inserting in lieu thereof the words "Minister

for Lands";
(ii)	by omitting from subsection four of the same section the words "form prescribed" and by inserting in lieu thereof the words "prescribed form";

(g)

(i) by omitting from section twenty-two the words "Secretary for Lands" wherever occurring and by inserting in lieu thereof the words "Minister for Lands";

GO

(ii)   by omitting from subsection four of the same section the words "form prescribed" and by inserting in lieu thereof the words "prescribed form";

(h) (i) by omitting from section twenty-three the words "Secretary for Lands" wherever occur­ ring and by inserting in lieu thereof the words "Minister for Lands";

(ii)   by omitting from subsection six of the same section the word "land" and by inserting in lieu thereof the word "lease";

(iii)   by omitting from subsection seven of the same section the word "Minister" and by inserting in lieu thereof the words "Minister for Lands";

(i)   by omitting from section twenty-six the words "Secretary for Lands" wherever occurring and by inserting in lieu thereof the words "Minister for Lands";

(j) (i) by omitting from section twenty-seven the words "Secretary for Lands" wherever occur­ ring and by inserting in lieu thereof the words "Minister for Lands";

(ii)   by omitting from subsection six of the same section the word "detemine" and by inserting in lieu thereof the word "determine";

(k) (i) by omitting from subsection one of section

thirty the words "under this Act";

(ii)   by omitting from the same subsection the word "affected" and by inserting in lieu thereof the

word "effected";

(iii)   by omitting from subsection two of the same section the words "Secretary for Lands" and by inserting in lieu thereof the words "Minister for Lands".

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MINING