Prickly-pear Destruction Act 1901 (NSW)

Act No. 32. 1901.	817
JPrickly-pear Destruction.
Act No. 32, 1901.

An Act to consolidate the enactm ents relating’ i>kick .,v-.kau

1 1 * • D e.struction.

to tlic eradication oi the Prickly-pear.	[31.ŝ	—^
October, 1901.]

'1 3 ]'] it enaeted by tlu' Kiiij^’s Most Excellent Majesty, by and ivitli

tlie advice and consent of the Legislative Council and Legislative

Assembly of New South AEales in Parliament assembled, and by the

authority of the same, as follows :—

PAET I.

P reliminary.

1. This Act may be cited as the “ Prickly-pear Destruction siiou luie imd

Act, 1901,” and is divided into Parts, as follows:— division.

PART I.—Preliminary, ss. 1-3.

PART II .—Inspectors, ss. 4-6.

PART I I I .—Destruction o f pricldy-pear on certain lands not

being private lands, ss. 7-11.

PART IV.—Destruction o f pmcMy-pear on private lands,

ss. 12-24.

PART V.— General provisions, ss. 25-27.

PART VI.— General penalties and procedure, ss. 28-37.

2. (1) The Act fifty Victoria number two is hereby repealed. R'prai .md saving?.

(2) All persons appointed under the Act hcreliy repealed, and liolding office at the time of the passing of this Act, shall be deemed to have been appointed hereunder.

(3) All varieties of the cactus tribe declared by the Governor to be prickly-pear for the purposes of the Act hereby repealed, shall be deemed to have been declared to be prickly-pear for the purposes of this Act.

(4) All regulations made under the authority of the Act

hereby repealed, and being in force at the time of the passing of this

Act, shall he dcenunl to have been made under the autliority of this Act.

(5) All certiheates of allowance given under the authority of

the Act hereby repeahal, shall be deemed to have been given hereunder.

3. In this Act, unless the context or subject-matter otherwise interpretation,

indicates or requires,— fso vie. No. 2, a. 2.

“ Crown land ” means land vested in His Majesty and not permanently dedicated to any public purpose, or granted or lawfully contracted to be granted in fee-simple, or included under the definition of “ private land.”

“ eradicate ”

318   Act No. 32. 1901.

Frickly-pear Destruction.

“ eradicate ” means to entirely consume by fire, or to completely bury three feet at least under ground, prickly-pear with the roots, seed, and every other part thereof,

“ inspector” means any person acting under the authority of the

Minister as inspector for the purposes of this Act.

“ occupier” means every person holding any lease, agreement for lease, or license to occupy land, and every person in actual possession or occupation of any land.

“ owner” means any person holding land on any freehold tenure, or permanently in trust, or upon any lease or promise of lease from the Crown, and includes the mortgagee of any such land.

“ prickly-pear ” means tire plant known by the botanical name of Opuntia vulgaris, or the common prickly-pear, and any other variety of the cactus tribe which the Governor may declare to be prickly-pear for the purpose of this Act.

“ private land ” means land alienated from the Crown, or held under lease or promise of lease from the Crown, for any period exceeding one year, or permanently dedicated and vested in trustees, whether such trustees be persons or a body corporate.

PART II.

I nspectors.

Inspectors.	4. The Minister may authorise any person to act as inspector for the purposes of tliis Act.
Power of entry.	5. Any inspector may at all reasonable hours enter upon any Crown land or private land for the purpose of ascertaining whether any prickly-pear is growing tliereon, and for sucdi purpose shall liavc free right of entry.
50 \ i c . No. 2, s. 3.
to ascertain if any

Inspector on notice 6. Every inspector upon being required by notice in writing,

prickly-pear is on	delivered to him personally or left at his usual abode by any owner or
land.	occupier, shall attend at any place therein appointed within a reason­
Ibid. 8. 4.	able time after the service thereof, for the purpose of ascertaining whether any prickly-pear is growing upon the land specified in such notice.

PART

Act No. 32, 1901.	319
Friclchj-pecu' Destruction.

PART m .

D estruction of prickta"-feau on certain land, not reino private

LAN D. •

7. AVlien any 2>i’i(jkly-])ear is found by an inspector upon Crown Notice to Ministoi'

land, or upon any road not ivithin the boundaries of any municipality

anil adjoining or dividing Crown land, a notice in tlio form of tlic 50 vie. No. 2, b. 6.

Pirst fScliedulc hereto shall be transmitted by such i inspect or to the First Schedule.

Minister, describing tbc situation of such land or road.

8 . On receipt of such notice, the Minister shall forthwith Enuiieutiou thereof,

authorise tbc employment of all necessary labour to eradicate such//Ad 9. g.

prickly-pear, and all expenses incurred in such eradication shall be

,

defrayed out of such moneys as Parliament appropriates for that

purpose.

Provided that the Minister may cause such Crown land to be offered for lease by auction or tender, and may let tbe same in areas not exceeding six hundred and forty acres, and for any term not exceeding twenty-one years, upon contlition that the lessee shall destroy and eradicate such prickly-pear, and at such rent and subject to such other conditions and jicnaltics as may be prescribed by regulations in that behalf, anything in the Land Act of 188t or any Act amending the same to the contrary notwithstanding.

9. If any prickly-pear is found upon any land vested in the Prickiy-iicar growing

Railway Commissioners of Aew South M'ales, or upon any land, roads,

or streets within the boundaries of any municipality, the said Com- municii,aiiiy.

missioners or the council of such municipality (as the case may be)	7.
shall be taken to be tbc owner or occupier of such land, I’oads, or streets for the purpose of being served 'witb the notice in the next succeeding section mentioned, and shall be liable to the penalties imposed by this Act.

10. If prickly-])car is found upoir any common or upon any Leasing of toinmons,

land Avhich has been A csted b\̂ the Crown in trustees, other than the* '̂; • A n • • Ihid. S. 8,

coiincu or any inunici])ality, and it—

{ ( t ) (he same is not etfeetually eradicated AA ithin three months

after notice in the form of the Second Schedule hereto has Seoomi Seheduie.

been sci’a'ciI upon the trustees of such common or land or upon any one of them or AA'ithin such further jAcriod as the

Minister in any case alloAA s ; or

(/;) the trustees of such common or land, A v i th in tliree months after the receipt of a notice in the form of the Second Schedule hereto, inform the Minister that they are unahle to eradicate the prickly-j)ear thereon ; or

(e) there are no trustees of such common or land ;

then tbe Minister may cause such common or land to be olTered for lease by auction or tender, and may let the same for any term not

exceeding

320   Act No. 32, 1901.

Prickly-pear Destruction,

exceeding twenty-one years upon condition that the lessee destroys and eradicates such prickly-pear, and at such rent and subject to such other conditions or penalties as are prescribed by regulations in that behalf, and any rent received for such land shall he paid to the Consolidated Revenue, anything in tlu' Commons Regulation Act, 1898, to the contrary nothwithstanding.

Comuions loasol	11.	Any common or land so leased shall during the currency of
freed from

commonage rights. such lease he absolutely freed from all the rights of commonage or the

50 No. 2, 8. 0. trusts, as the case may he, and the Minister may, upon proof to his satisfaction of tlie non-fulfilment by the lessee of the conditions of the lease or any of them, declare such lease forfeited and again lease the common or land as hereinbefore provided.

PART IV.

Destruction oe thickly-tear ' on private lands.

Ins^tootor may seiA O

noti(;e on t>\vnei*s to	12. Any inspector may serve or cause to be served upon any
eradicate prickly-pear.

Ibid. s. 10.

owner or occupier of any private land on which any prickly-pear is

Second Sclicdulc.

found a notice in the form of the Second Schedule hereto requiring

such owner or occupier forthwith to eradicate the same.

Penalty for neglect

to comply wtih

13. If within one month after the service of such notice such do all such acts as the Minister in writing directs, to eradicate the prickly-pear on the land mentioned in such notice, such owner or occupier shall be liable to a penalty not exceeding ten pounds for the first offence and for every subsequent offomce to a penalty of not less than five pounds nor more than twenty pounds, and neglect to take such means to eradicate as aforesaid for a space of twenty-eight days at any time after the date of each conviction shall be deemed to be a fresh offence'.

notice.

owner or occupier does not commence to do and thereafter continue to

Ibid. s. 11.

In a^ldition to

penalty inspoclor 14. If any owner or occu[)icr fails to comply ivith any such

may enter upon	notice then in addition to or in lieu of proceedings for the recovery of
private land.	such penalty any sucli inspector or other person upon being authorised
Ibid. s. 12.	by the Minister to do so may enter upon the land mentioned in such notice and do all such things as to him appear necessary to cradicaie the prickly-pear on the land of sucli owner or occupier, and for that purpose the inspector or authorised ])erson and any person employed by either of them shall have fi’ce right of entry for such period as is in the opinion of the inspector or authorised person necessary for the purposes of such eradication.

Power to withdraw	16.	If at any time after the expiration of one month as aforesaid
from lands after

entering to clear. such inspector is satisfied tliat the owner or occupier is doing all things

Ibid. 8. 13. necessary

Act No. 32, 1901.	321
PricJdij-pear Destruction.

necessary to eradicate sucli prickly-pi'ar, then sucli inspector may abstain Troni entering upon sucli land or having entered upon it may Avitlidraiv tlicrel'rom upon the owner or occupier paying all costs and expenses incurred to the time ol‘ such 'withdrawal.

16. Any owner or occupier upon whose land any insju'ctcr or Oivnori witiiin

authorised person has enti'n'd as aforesaid for the purpose of eradicatinii' service

» ■̂ A X w qJ- iKjhlCC to CÔ t

any 2)richly-])ear shall, within tliirty days from service of a notice in of destrudion.

the form of the Tliird Schedule hereto, pay to the person or one of the 50 vic. No. 2, s. 14.

persons mentioned in such notice as authorised to receive s u c h 'I'liird Sciieduie.

payment the amount mentioned therein as being the cost and expenses

incurred in the eradication of any prickly-pear, which amount when

so paid shall by the person receiving the same be fortlnvith paid into

the Consolidated licveniu'.

17. If any owner or occiijiier upon whom a notice as inentioiK'd n cost not .so paid

in the next iireceding section has been served fails to pay the amount "'U’cetor to tue for

mentioned therein w’ithin the said period of thirty days the inspector

g jg

issuing such notice or any person authorised in that behalf by the jMinister may sue either the owner or the occiqiier for and recover the same as a delit due to the Crown, either in tlie Siipri'mc Court or in any Court liaving jurisdiction nearest to the jilace where the land in respect of w'hich the claim w as made is situated, whether the defendant resides w'ithin the limit of the jurisdiction of smdi Court or not.

18. If a notice is served upon any owniw w ho is not entitled to if notice to destroy

the occupation for the time being of the land mentioned in such

notice then, unless the person in actual occupation or entitled to actual occupation he may

occupation of such land, within fourteen davs from tin; service of suclC'"*"''

notice, arranges w'ith such owner and to his satisfaction for the '	'
eradication ol' prickly-pt'ar on the said land, the said owner shall be deemed as regards such lands to have all the powers of an inspector under this Act.

19. Wherever tlu're arc more OAvners or occupit'rs than one of Contribution

any private land and one of such owners or occupiers is under	between owners.
Act in any Avay compelled to pay more than his proportionate share of	. Ibid. S. 17.
the cost of eradicating the ])rickly-pear on such land, he may in any Court of compett'ut jurisdiction sue for and recover from the other owners or occupit'rs of such privatt; land such proportion of the costs, charges, and expenses incurred by him in or about such eradication as is in the opinion of the Court fairly proportionate to the respective interests of the owners in such land.

20. If the ow ner or occupier of any such land as mentioned in Peuso in default of

the next preceding section is unknown or absent from Kew- South ™"'''‘butious. penalty incurred in respect of such land, cannot be recovered from him and remains unjiaitl for tw'clvc months after the right to recover the same first accrued, the Minister may let such land for any term not

X exceeding

322   Act No. 32, 1!»01.

Prickly-pear Pest ruction.

exceeding twenty-one years, npon sucli terms and conditions as arc prescribed by regulations for that purpose, and may receive the rents and profits thereof and apply tbe same in payment of sucli amount or penalty as aforesaid witb interest thereon at the rate of ten pounds jicr centum per annum so long as the same is unpaid, and the surplus (if any) shall be paid to tbe Colonial Treasurer to be held by him upon trust for the persons entitled to the same.

Contribution between

landlord and tenant.	21. In every case where, on the first day of September, one then been continuously and now is held of any land (the same not being Crown land) for an unexpired period, and there is no provision in such lease with respect to the cost of tlu' eradication of prickly-pear on such land, the landlord and tenant shall each contribute an eipiitable share of such cost.
00 Vie. No. 2, ss.	thousand eight hundred and eighty-six, a lease was held and has since
1 & ly.
Proceedings in
default of	22. If the ti'uant under such lease as mentioned in the next may be, the landlord when called upon by the tenant, does not agree to pay an equitable share of such eradication, then either party may apply to the court of petty sessions nearest to the place where such eradication has been done to issue a summons to such other party, requiring him to appear before such or some other such court to show cause Avhy such other party should not pay to the first-mentioned party such a proportion of the cost of such eradication as is just and equitable, having regard to the circumstances and duration of the lease of such tenan t:
contribution.	preceding section when called upon by tbc landlord, or, as tbe case
Ibid. s. 18.
Provided, however, that nothing in this Act shall in any way alfect any agreement with respect to the eradication of prickly-pear made between a landlord and tenant previous to the first day of September, one thousand eight hundred and eighty-six.
Adjudication in	23. At tlie time' and place appointed by such summons tbe shall hear and examine all persons who appear to give evidence concerning the same, and shall thereupon make such order as to the amounts to be contributed respectively by such landlord and tenant as appears to be just and equitable, having regard to all the circumstances and the duration of the lease, and the presiding magistrate shall give a certificate under his hand and seal certifying what amounts are so jiayable, and such sums shall thereupon be recoverable as hereinafter provided.
])roceedings
for contribution.	court as aforesaid shall inquire into tbe matter therein referred to and
Ibid. s. Id.
As to description
of private lands in	24. (1) T'he description of any private land required to be land referred to therein, but shall be sulficieut if it makes such reference to the land either by name, number of section, or allotment, or by boundaries or otherwise, as to allow of no reasonable doubt as to
notices, &c.	inserted in anv notice under this Act need not particularlv define the
Ibid. s. 20.
what land is referred to. (2 )

Act No. 32, 1901.	323
Frickly-pear Destruction.

(2) All references to private land in any siicli notice shall he deemed to cxt(!nd to the roads hounding or intersecting the same, and any owner or occupier, or inspector, or otlier person having power hereunder to enter upon private land and to eradicate the prickly-pear thereon shall be deemed to have power to enter upon the roads bounding or intersecting such land and to eradicate the prickly-pear growing on such roads.

PART V.

General rrovisions.

25. Any jicrson who is authorised by tliis Act to enter uf)on any Autiioiisd porsoTis

land and to dcstrov prickly-pear thereon may take sucli indiiinnous

timhor growing on the land of the owner or occupier of such land as i s 5 0 y;̂ .	̂ ̂ ,1
rcipiired by him for the purpose of burning or destroying such prickly-	’
pear, and may dig pits and bury the same therein.

26. All costs, charges, and expenses incurred by an inspector or Exih-hpo of

any person authorised in clearim? any private land of pricklv-pcar V 1. ̂ o t ' j . j . « . x lirst c'hiiriio upon

under the provisions of this Act shall be a first charge upon such land lami.

and shall take precedence of all mortgages or other charges whatsoever md.	22.
upon such land :
Provided that a certificate under the hand of the Minister shall he a full discharge of all such costs, charges, and expenses up to the date of such certificate.

27. The Governor may make regulations for declaring how and Regulations,

in what manner prickly-pear is to he destroyed otherwise than provided	3̂.
for in this Act, and also with respect to all other matters of detail necessary for carrying out the objects of this Act, and may impose penalties not exceeding five pounds for the breach of any such regulation, and every such regulation shall, upon publication in the Gazette, have the force of law.

PART VI.

General penalties and procedure. .

28. "Whosoever-- Pcnallies for

(«) falsely represents himself to he or personates an inspector or a jicrson authorised under this A ct; or '

(i)

not being- an inspector or a person authorised in writing by the for trespassing upo.T hereof, trespasses upon any ])rivate land for the apparent

purpose of eradicating prickly-pear; or (e)

324   Act No. 32, 1901.

J?ricklij-i)ear Destruction.

for interfering with (c-) destroys, injures, alters, or removes any notice signed by an

notices.

inspector or person authorised under tins Act, and placed or

50 Vic. No. 2, ?. 24.

exhibited npon any land by the onner thereof, or by any

inspector or person authorised under this Act as aforesaid;

shall be liable to a jjenalty not exceeding twenty pounds.

Inspector neglecting	29. Any inspector or person duly authorised under this Act who refuses or Avilfully neglects to perforin any of tbe duties imposed upon him by this Act sliall be liable to a penalty not exceeding ten pounds,
Ihid. s. 5.
Penalty for wilfully
obstructing	30. (1) Whosoever wilfully, assaults, obstructs, hinders, interrupted, or misled, any inspector or any person authorised in writing by the Minister or any owner or person in the exercise of any power or authority vested in him by this Act whilst in the performance or execution of his duty under this Act shall for every such offence if not otherwise specially provided for be liable to a penalty not exceeding twenty pounds.
inspectors, &c.	interrupts, or misleads, or causes to be assaulted, obstructed, hindered,
Ibid. s. 25.
(2 ) No proceeding for the recovery of such penalty nor the payment thereof shall be a liar to any action at law by any of the persons aforesaid for or in respect of any such assault as aforesaid, but every such action may be commenced and proceeded Avith as if this Act had not been passed.
Penalty for

his duty.

disseminating 31. Whosoever groAvs or cultivates upon any land or premises

})rickly-pear.

any prickly-pear, or scatters the seed thereof upon any land, or throAvs

Ibid. 8. 23.

or places or causes to be throAvn or placed the same into any river, stream, creek, or Avatcrcourse, Avhetber containing Avatcr or not, or cuts and leaAU's any prickly-pear in such a position on the banks of any river, stream, creek, or Avatercourse, that by reason of floods or othcr- Avise it is liable to be SAvept or floated into such river, stream, creek, or Avatercourse shall b(' liable to a penalty not exceeding tAventy pounds.

General penalty. 32. AVhosoever commits a breach of this Act or of any regulation

Ihid. s. 28.

hereunder for Avhich a penalty is not specially provided shall for every

such offence be liable to a penalty not exceeding ten pounds.

Recovery of penalties 33. All proceedings for the recoA'ery of penalties imposed by

under regulations.	any regulation made under this Act may be heard and determined before any tAvo justices in a summary manner, according to the pro­ visions of the Act or Acts for the time being rea:ulating proceedings before justices.
ousted on ground of

Jurisdiction not 84. In any proceedings for tlie recovery of money under the

title or residence of	provisions hereof or for the recovery of any pimalty hereunder, the
defendant.	jurisdiction of the court or justices before Avhoni tbe proceedings are
Ibid. s. 29.	pending shall not bi' ousted on tbe ground that the defence raises any question of title to land or tliat the defendant does not reside Avithin the boundaries of the jurisdiction of the court or justices Avhere the action Avas commenced if the land in respect of Avhich the claim arose is situated Avithin the boundaries of the jurisdiction of such court
or justices. 35.

■e-fir.uy

Act No. 82, 1901.	825
l^ricJcly-i^cav Destruction.

35. Any notice or order required l)y tins Act to he in the form Form ot noiiccs, &c. give'll in any of the Schedules hereto shall he sunTicieut if in a form go vic. No. 2, s. 3i. suhstantially similar thereto.

36. (1) Such notices, or any other required to he given by this Service of notices.

Act, or by the regulations to be made bereunder, unless otherwise prcscrihed, shall bo deemed to be sudiciently given or served—̂

(u) if left with the person to whom it is addres.sed, or left with some pc.rson at his usual or last-known place of residence ; or

(/;) if sent to him by a registered letter througb the general post;

or

(r) if inserted twice a wt'ek for two consecutive weeks in some newspaper publisbed in Sydney, and once a week for two consecutive weeks in some newspaper publisbed in or near to (as the case may he) the district in which sucli land is situated.

(2) (a) In ease of service under paragraphs (o') or (6 ) of I’roof of service,

the preceding subsection, a statutory declaration of sueb service sball

be sufficient proof thereof.

(i) In case of service under paragraph (a) of the preceding subsection, the production of the newspa])crs containing such insertions shall be proof of the due service of such notice.

37.    (1) Por the purposes of this Act in any jiroceeding to recover Allowance of police

from the owner of any land the e.vpenscs of and attending thccradica-

tion of ])riekly-pear, and in any appeal relating to or concerning such o fthe expenses

expenses it shall be sufficient to jiroducc a certificate of tbe allowance	Idl'd. 3 . 32.
of sueb expenses purporting to be under the hand and seal of the magistrate presiding at the court of petty sessions nearest to the jilace Avlu're such work Avas done, and such allowance and certiiicate shall be ('videnee that the expenses so allowed Avere actually incurn'd in such eradication, and that such eradication Avas duly authorised, and that such notice Avas given and jiroccedings taken pursuant to the requirements of this Act.
(2) For the jniiposi' ol'giving such cert ilicati' such magistrate sball, upon request and ('x parte, iii([uire into such ex])enditure, and examine the A'ouchcrs of the same, and shall take evidence of the same if he deems it necessary.

SCHEDULES.

320   Act No. 32, 1901.

Frickly-2^ear Destruction.

SCHEDULES.

Section 0. FIRST SCHEDULE.

Beport hy inspector of cxiatence o f pricMy-pe.ar on land.

To tlie Minister for {Place and dated)

Sir,

I Iirreby f̂ ivo you notice tliat jirickly-pcar is upon the land or road situated

as hereunder de.scribed. (Signed) A.B.

■ -------- - Inspector.

Pescrip)tion o f land.

Sections 10, 12. SECOND SCHEDULE.

Not ice to owner to de. t̂roy pricTily-pcar.

To owner (or owners) of the land hereunder described.

T ake notice that ])m-snant to tl'.o Prickly-pear Destruction Act, 1001, you are hereby

required forthwilli to eradicate the prickly-pear on the land situated as hereunder

deicribcd. (Signed) A.IL

--------- Inspector.

Bescripticn of land.

N ote.—W’lien ti c notice is given liy the council of .a iniinicipalitj tlie notice must lie signed l>y

tlic council clerk.

Section 10. THIRD SCHEDULE.

Notice to defaulter to pay cost o f eradication.

To owner of the land hereunder described.

Ta ke notice that pursuant to the Prickly-pear Destruction A ct, 1901, costs and expenses

to the amount of have been incurred in the eradication of prickly-pear under my direction on the land situated as hereunder described, which amount you arc

hereby ri qtiired to ]iay to (Signed) A.B.

--------- Inspector.

De.scription o f land.

Act