Prickly-pear Destruction Act of 1886 No 7a (NSW)

No. II.

PRICKLT-PEAR

D esthuction. A l l Act to provide for tlie eradication of tlio

Prickly-pear. [30̂ 7̂ . July, 1886.]

Preamble.

'IIEIIEAS provisioR should he made for the eradication of the

Prichly-p('ar Be it therefore enacted by the Queen’s Most

Excellent Majesty hy and with the advice and consent of tlu; Legis­

lative Council and Legislative Assembly of New South Wales in

Parliament assembled and by the authority of the same as follows :—

C ̂ mmencement and L This Act shall come into operation on the fii’st day of

title cf Act.

September one thousand eight hundred and eighty-six and may he

cited as the “ Prickly-pear Destruction Act of 1880.”

Interpretation of 2. In this Act if not inconsistent with the context—■

terms.	“ Crown Land” means land vested in Her Majesty and not perma­ nently dedicated to any public purpose or granted or lawfully contracted to he granted in fee-simple or included under the definition of “ Private Land.”
“ Eradicate” ineans to entirely consume hy fire or to completely bury three feet at least under ground prickly-pear Avith the roots seed and every other part thereof.
“ Governor” means the GoA'crnor Avith the advice of the Executive

Council.

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

Minister as inspector for the purposes of this Act.

“ Minister” means the Minister for the time being charged AAnth

the administration of this Act.

“ Prickly-pear” means the plant knoAvn hy the botanical name

of vjmnlla vulgaris or the common prickly-pcar and any

other variety of the cactus tribe Avhich the Governor may

■ declai’e to he prickly-pcar for the purpose of this Act.

“ Private Land” means land alienated from the Crown or held under lease or promise of lease from the CroAvn for any p>eriod exceeding one year or permanently dedicated and Austed in trustees Avhether such trustees be persons or a body corporate.

“ OAvner”

1886. 50 ̂ VIC. No. 2.

Pricldy-pear Destruction.

“ Owner” means any person or body corporate bolding 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 sncli land.

.

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

1.    Inspectors— their powers and duties.

3. Any inspector may at all reasonable hours enter upon any Power of eniry.

Crown land or private land for the purpose of ascertaining A\'bether

any prickly-pear is growing thereon and for such purpose shall liave

free right of ingress egress and regress into over and across such land. ,

4 . Every inspector upon being required by n o t i c e i n A v r i t in g inspector on notice

aelivcu'ed to liini porsoiiaily or lolt at his usual abode by any owner prickly-pear is ou

or occupier shall attcnid at any place therein appointed Avithin a reason- î nd. notice.

able time after the service thereof for the purpose of ascertaining

5. Any inspector or person duly authorized under this Act

Avho shall refuse or Avilfully neglect to perform any of tlie duties im-

'

posed itpon him by this Act shall be liable to a penalty not exceeding

ten pounds.

2. Destruction o f any Prickly-pear on Crown Land or land vested in

the Commissioner o f 'Railways or in the Council o f a Municipality.

6. W hen any prickh^-pear is found by an inspector upon rriciiiv-pcar grow- fc X t/ -L X ̂ X iiiCf OH Clrowt' 11m 1 f 1H

form of Schedule A hereto shall l>e transnritted by such inspector to the Minister describing the situation of such land or road and it shall

Crown Land or upon any road not Avithin the boundaries of any may be eradicated.

then be the duty of such Minister fortliAvitli to authorize the employ-	■
ment of all necessary labour to eradicate such prickly-pear and all
expenses incurred in such eradication shall be defrayed out of such moneys as Parliament may appropriate for that purpose ProAuded that it shall bo laAA'ful for the Minister to cause such CroAvnland to l)c

offered for lease l̂ y aiudion or tender and to let the same in areas not exceeding six hundreal and forty acr(!S and for any term not exceeding tAventy-one years unon condition that the h'ssee shall destroy ancl e/ r I, » /

eradicate such prickly-pear and at such rent and subject to such other conditions and penalties as may be prescribed by regulations in that behalf anything in the “ Land Act of 1881” to the contrary notAvith- standiug.

7. I f any prickly-pear is found upon any land A’ested in the

Commissioner for Itaihvays or upon any land roads or streets landTwitb'n’a Avithin the boundaries of any Muiricipality the Commissioner for Municipality, llaihvays or the Council of such Municipality (as the case may be)

shall be taken to lie the owner or occupier of such land roads or streets for the piu'poso of being served Avith the notice hereinafter mentioned to clear such land and shall bo liable to the penalties imposed by this Act.

8. If prickly-pear shall be found upon any Common or upon

any land vested by the CroAvn in Trustees other than the Council cAei-the expenses of

of any Mnnicipality and the same shall not bo clVectually eradicated prieUiy.

Avithin three months after notice as aforesaid in the form of	'
Schedule B shall have been served upon the trustees of such Common ,or land .or upon any one of them or within such further period as the

" ' Minister

No. 2. 50̂ VIC. 1886

Frichly-pear Destruction.

Minister may in any case allow or if tlie trustees of such Common or land shall within three months after the receipt of such notice inform the Minister that they are unable to eradicate the prickly-pcar thereon or if there shall be no trustees of such Common or land then it shall be lawful for the Minister to cause such land to be offered for lease by auction or tender and to let the same for any term not exceeding twenty-one years upon condition that the lessee shall destroy and eradicate such prickly-pear and at such rent and subject to such other conditions or penalties as may be prescribed by regulations in that behalf and any rent received for such land shall be paid to the Consolidated Revenue anything in the “ Commons Regulation Act” to the contrary notwithstanding.

Commons leased	9.	Any Commons or land so leased shall during the currency
freed from com­

monage rights. of such lease be absolutely freed from all the rights of Commonage or the trusts as the case may be and the Minister may from time to time upon proof to his satisfaction of the nonfnlfilment by the lessee of the conditions of the lease or any of them declare such lease forfeited and again lease the land as hereinbefore provided,

3. Destruction of Pricldy-pear on private land.

Inspector may

serve notice on 10. Any inspector may serve or cause to he served upon any

owners to eradicate

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

prickly-pear.

found a notice in the form of Schedule B hereto requiring such

owner or occupier fortlnvith to eradicate the same.

Penalty for neg’ect

11. If within one month after the service of such notice such owner or occupier does not commence to do and thereafter continue to do all such acts as the Minister may in writing direct to eradicate the prickly-pear on the land mentioned in such notico such owner or occupier shall be liable to a penalty not exceeding ten pqunds for the first offence and for every second or subsequent offence 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.

to comply with

notice.

In addition to

12. If any owner or occupier fails to comply with any such such penalty any such inspector or other person upon being authorized by the Minister to do so may enter upon the land mentioned in such notice and do all such things as to him may appear necessary to eradicate the prickly-pear on the land of such owner or occupier and for that purpose the inspector or anthorized person and any person or persons employed by either of them shall have free right of ingress egress and regress into over and across any land of such owner for such period as may in his opinion bo necessary for the purposes of such eradication.

penalty inspector

may enter upon

notice then in addition to or in lieu of proceedings for the recovery of

private land.

Power to withdraw	13.	If at any time after the expiration of one month as aforesaid
from lands after

entering to dear. such inspector shall be satisfied that the owner or occupier is doing all things necessary to eradicate such prickly-pear then such inspector may abstain from entering upon such land or having entered upon it may withdraw therefrom upon the owner or occupier paying all costs and expenses incurred to the time of such withdrawal.

Owners within thirty 14. Any owncr 01’ occupici’ upon wlioso land any inspector or

noL^ce tq pay co°st of authorized pei’sou shall have entered as aforesaid for the purpose of destruction. eradicating any prickly-pear shall within thirty days from service of

a notice in the form of Schedule C hereto pay to the person or one of the persons mentioned in such notice as authorized to receive such payment the amount mentioned therein as being the cost and expenses

incurred

1880. 50’ VIC. No. 2.

Frickly-pcar Destruction.

incurred in tlio eradication of any prickly-pear which amount when so paid shall hy the person receiving the same ho forthwith paid into the Consolidated Ilevenuc,

15.   If any owner or occupier upon whom a notice as mentioned if cost, not so pnid

in the last preceding section has heen served shall fail to imy the

amount mentioned therein avithin the said period of thirty days the

’

inspector issuing such notice or any person authorized in that hehalf hy the Minister may sue either the oavner or the occupier for and recover the same as a debt duo to the Croavn either in the Supremo Court or in any Court having jurisdiction nearest to the place aadiero the land in respect of aadiich the claim shall have heen made is situated avhether the defendant shall reside aalthin the limit of such Court’s jurisdiction or not.

16 . If a notice is served upon any oavner who is not entitled i f notice to destroy

to the occupation for the time htung of the land mentioned in such no7enti'ued tTo'ĉ u. notico then unless the person in actual occupation or entitled to pation iie may enter actual occupation of such land shall within fourteen days from the

service of such notice arrange avith such owner and to his satisfaction for the eradication of prickly-ptiar on the said land the said oavner shall ho deemed as regards such land to have all the poavers of an inspector under this Act.

17 . IVherever there arc more oavners or occupiers than one of Apportionment of

. i. 1 1 1 • • T i l - cost between owners.

any private land and one of sucli oavners or occupiers is under this Act in any avay compelled to ])ay more than his proportionate share of the cost of eradicating the prickly-pear on such land he may in any Court of competent jurisdiction sue for and recover from the other owners or occupiers of such private land such proportion of the costs charges and expenses incurred hy him in or about such eradication as is in the opinion of the Court fairly projiortionatc to the respective interests of the owners in such land If the oavner or occupier of any such land as aforesaid shall be unknoavn or absent from the Colony and the cost of eradicating the prickly-pear on his land or any penalty incurred in respect of such land caannot be recovered from him and shall remain unpaid for twela’e months after the right to recoa’cr tin* same has first accrued it shall he laavful for the Minister to let such land for any term not exceeding twenty-one years upon such terms and conditions as shall he prescribed by regulations for that purpose and to receive the rents and profits thereof and apply the same in payment of such amount or penalty as aforesaid with interest thereon at the rate of ten per cent, per annum so long as the samej shall he unpaid and the surplus (if any) shall he jiaid to the Colonial Treasurer to he held hy him upon trust for the persons entitled to the same.

18 . In every case where on this Act coming in force a lease is Apportionment of

held of any land (the same not being Crown Land) for an unexpired landioTcTand tenant,

period and there is no provision in such lease with respect to the cost

of the eradication of prickly-pcar on such land the landlord and tenant

shall each contribute an equitable share of such cost And if the

tenant shall not when called upon hy the landlord or as the case may

he the landlord when called upon hy the tenant agree to pay an

equitable share of such eradication then either party shall and may

apply to the Court of Petty Sessions nearest to the place where such

eradication shall have heen done to issue a summons to such other

party requiring him to appear before such or some other such Court

to show cause why such other party should not pay to the first-

mentioned party such a proportion of the cost of such eradication as

shall he just and equitable having regard to the circumstances and

duration of the lease of such tenant Provided however that nothing

in this Act shall in any way atfect any agreement with respect to the

eradication of prickly-pear made between a landlord and tenant

previous to the passing of this Act.

No. 2. 50° VIC. 1886.

JPricJcly-pear Destruction.

Contribution by 19. At the time and place appointed hy such summons the landlord and tenant. Qourt US aforcsaid sliall inquii’c into the matter therein referred to and

shall hear and examine all persons who shall appear to give evidence concerning the same and shall thereupon make such order as to the

. amounts to he contributed respectiA'ely hy such landlord and tenant as shall appear to he just and equitable having regard to all the circum­ stances and the duration of the lease and the presiding Magistrate shall give a certificate under his hand and seal certifying what amounts shall he so payable and such sums shall thereupon be recoverable as hereinafter provided.

20.                 The description of any private land required to he inserted

As to description of

private lands in

notices &c. in any notice under this Act need not particularly define the land referred to therein hut shall he sufficient if it make such reference to the land either hy name number of section or allotment or by boundaries or otherwise so as to allow of no reasonable doubt as to what land is referred to And all references to private land in any such notice shall he deemed to extend to the roads hounding or intersecting the same and any OAvner or occupier or inspector or other person having power liereunder to enter upon pri\'ate land and eradicate the prickly- pear thereon shall he deemed to have poAver to enter upon the roads hounding or intersecting such land and eradicate such prickly-pear groAving on such roads.

4. General Frovisions Regulations ^c.

Autliorizcd persons 21. It shall he laAA'ful for any person aaI io is authorized by this

may take timber	Act to enter upon any land and to destroy prickly-pear thereon to
for purposes of Act.	take such indigenous timber growing on the land of the OAvner or occupier of such land as may he required hy him for the purpose of burning or destroying such prickly-pear or to dig pits and bury the same therein.

Expense of eradica­ 22. A ll costs charges and expenses incurred hy an inspector

tion to be a first	or any person authorized in clearing any private land of prickly-pear
charge upon land.	under the jiroAusions of this Act shall he a first charge upon such land and shall take precedence of all mortgages or other charges AAdiatsooA'er upon such land Provided always that a certificate under the hand of the Minister shall he a frrll discharge of all such costs charges and expenses up to the date of such certificate.
Regulations.	23. The GoA'ernor may make regulations for declaring how and in what manner prickly-pear nray or shall he destroyed otherwise than proAuded for in this Act and also Avith respect to all other matters of detail necessary for carrying out the objects of this Act and may impose penalties for the breach of any such regulation not exceeding five pounds and every such regulation shall have the force of laAv upon publication in the Gazette.

5. Fenalties.

PeimUies for person- 24. Aliy pei’son Avlio sliall falscly represent himself to he or

ating inspector. sfiall pei’soiiate au inspector or a person authorized under this Act or Penalty for trespass- Avho not being 311 inspcctoi’ 01’ 3 person authorized in Avriting hy the

ing upon private “

lands.	Minister or a person laAvfully acting under the provisions hereof shall trespass upon any prAate land for the apparent purpose of eradicating
For interfering	prickly-pcar or aaI io shall destroy injure alter or remoA'e any notice
■with notices.	signed by an inspector or person authorized under this Act and placed or exhibited upon any land hy the OAViu'r thereof or hy any inspector or person authorized under this Act as aforesaid shall he liable to a penalty not exceeding twenty pounds,

1886. 50“ VIC. No. 2

Fricldy-pear Destruction.

25. Any person ■who sliall ■wilfully assault obstruct hinder For wilfully

interrupt or mislead or cause to he assaulted obstructed hindered

interrupted or misled any inspector or any person authorized in

Avriting by the Minister or any OAvnor or person in the exercise of

any power or authority A'csted in him hy this Act Avhilst in the per­

formance or execution of his duty under this Act shall for every such

offence if not otherwise specially provided for he liable to a penalty	.
not exceeding tAvcnty pounds And no proceeding for the recovery of such penalty nor the payment thereof shall he a bar to any action at
laAV hy any of the persons aforesaid for or in respect of any such assault
as aforesaid hut every such action may be commenced and proceeded noth as if this Act had not been passed any laiv or usage to the contrary notwithstanding.

20. It shall not be lawful for any person to groAV or cultivate XoUawfui to

upon any land or iiremises any prickly-pear or to scatter tlie seed

noxious

thereof upon any land or to throAV or place or cause to be throAvn or placed the same into any river stream creek or Avatercourse AAdicthcr the same shall contain  •ater or not or to cut and leave au nricklv- pear in such a position on the htinks of any river stream creek or Avatercourse so that hy reason of Hoods or otherwise it Avould be liable to be swept or lloattnl into smdi river stream creek or Avatercourse and every person oifcndiug against the provisions of this section shall be liabh' to a penalty not exceeding twenty pounds.

27. EA cry owner or occupier upon Avhosc land there shall he owners togWe notice

anv pricklv-pear shall Avithiu one month from the passing htu’eof irive y p'-'i'ki.r-penr

the inspector nearest to such land notice thereof in writing and any '

person failing to do so shall be liable to a penalty not exceeding twenty

pounds.

28. Any person Avho shall commit a breach of this Act or of General penaitT.

any Eegulations hereunder i'or Avhich a penalty is not specially pro­ vided shall on conviction for every such offence incur a penalty not

exceeding ten pounds. ■

6. Legal JProcedurc '̂C.

20. All proceedings for the recoAX'ry of penalties or money ProemiiiigB for

payable under this Act sliall be heard and determined in a summary recovi rv of lunaities.

AAOV before anv two Justices unless hereinbefore othenvise specially

provided in accordance Avith the hiAV regulating summary proceedings

before Justices and in any proceedings for the recovery of money under

the provisions hereof or for the recovery of any penalty hereunder the

jurisdiction of the Court or Justice's before Avhom the proceedings arc

pending shall not he ousted on the ground that the defence raises any jurisaietion of Court

question of title to land or that the deffendant does not reside Avithin

the boundaries of the jurisdiction of the Court or Justices Avhere the fence raises question

action may be commenced if the land in rcsjicct of which the claims

arose is situated Avithin the boundaries of the jurisdiction of such

Court or Justices.

30. Any person may appeal from any adjudication of Justices Appeal,

undt'r this Act to the Court of (Quarter Sessions pursuant to the

provisions of the Acts regulating apjicals to Quarter Sessions.

31. Any notice or order required by this Act to be in the form xotiee how to he

given in any of the Schedules hereto shall he sufficient if in a, form substantially similiar thereto and such notices or any other required to

be given by this Act or hy the regulations to be made lu'reunder unless othenvise prescribed shall he deemed to ho sufficiently given or served if left Avith the ])erson to Avhom it is addressed or left Avith some person at his usual or last knoAvn place of residence or if sent to him by a registered hdter through the general post or if inserted tAvice a week for Iaao consecutive Avcc'ks in some ncAVspaper published in

Sydney

No. 2. 50 ̂ VIC. 1886.

]?richly-pear Destruction.

Sydney and once a week for two consecutive weeks in some newspaper published in or near to (as the case may be) the district in wliich such land is situated the production of the newspaper containing such insertions shall be proof of the due service of srtch notice and in all other cases a statutory declaration of such service shall be sufficient proof.

MagUtraTe to be*'"® Eor the purposcs of this Act in any proceeding to recover sufficient eTxdence of from the owncr of any land the expenses of and attending the eradica-

incurrer**" prickly-peai* and in any appeal relating to or concerning such expenses it shall be sufficient to produce a certificate of the allowance of such expenses purporting to he under the hand and seal of the Magistrate presiding at the Court of Petty Sessions nearest to the place where such work was done and such allowance and certificate shall be primd facie evidence that the expenses so allowed were actually incurred in such eradication and that such eradication was duly authorized and that such notice was given and proceedings taken pursuant to the requirements of this Act and for the purpose of giving such certificate such Magistrate shall upon request and ex parte inquire into such expenditure and examine the vouchers of the same and shall take evidence of the same if he deems it necessary.

SCHEDULES.

SCHEDULE A,

^Report ly Inspector o f existence of Priclcty-pedr On XanA.

{Place and date!)

To the Minister for

Sir

I hereby give you notice that Erlchly-pcar is Upon the land or road situated

as hereunder described. '

(Signed) A.B.

.....- Inspector.

Description of land.

SCHEDULE B.

Kotice to Otener to destroy Pricldy-pear,

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

Take notice that pursuant to the “ Prickly-pear Destruction Act of 188G ” you are hereby required forthwith to eradicate the Prickly-pear on the laud situated as here­ under described.

(Signed) A.B.

--------- Inspector.

Description of land.

' Note.—'U'hon the notice is given by the Council of a Municijality the notice must be signed by

the Couticil Clerk.

SCHEDULE C.

Notice to Defaulter to pay cost o f eradication.

To Otvner of the land hereunder described.

Take notice that pursuant to the “ Prickly-pear Destruction Act of 1S8G ” costs and expenses to the amount of have been incurred in the eradication ot Prickly-pear under my direction on the land situated as hereunder described which amount you are hereby required to pay to

(Signed) A.B.

............ Inspector.

Description of land.

No. I I I .