Wildlife Conservation Act Amendment Act 1976 (WA)

WESTERN AUSTRALIA.

WILDLIFE CONSERVATION.

No. 86 of 1976.

AN ACT to amend the Wildlife Conservation Act, 1950-1975 and to repeal the Native Flora Protection Act, 1935-1938.

[Assented to 4th November, 1976.]

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

1. (1) This Act may be cited as the Wildlife Short title

Conservation Act Amendment Act, 1976.

(2) In this Act the Wildlife Conservation Act,pp o d	Reprinted
as

1950-1975, is referred to as the principal Act.	for reprint
10th Aprit,

(3) The principal Act as amended by this Act 71:91,1aC by olne of

may be cited as the Wildlife Conservation Act, 1975.

1950-1976.

No. 86.] Wildlife Conservation. [1976.

Commence-

ment. 2. This Act shall come into operation on a date

to be fixed by proclamation.

Repeal.

3.    The Native Flora Protection Act, 1935-1938

is hereby repealed.

Section 6

amended. 4. Section 6 of the principal Act is amended

(a) by adding after the interpretation "close season" the following interpretation

"Crown land" means all land other

than private land; ;

(b) by adding after the interpretation "fauna" the following interpretation

"flora" means any plant (including any wildflower, palm, shrub, tree, fern, creeper or vine) which is

(a) native to the State; or

(b) declared to be flora pursuant to subsection (4) of this section,

and includes any part of flora and

all seeds and spores thereof; ;

(c)	by deleting the interpretation "indigenous flora";
(d)	by adding after the interpretation "open season" the following interpretation

"private land" means any land that has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without a right of acquiring the fee simple thereof other than for pastoral or timber purposes; ;

1976. ] Wildlife Conservation. [No. 86.

(e) by adding immediately before the interpretation "skin" the following interpretation

"protected flora" means, any flora for the time being declared to be protected flora for the purposes of this Act; ;

(f)	by deleting the word "Fauna" in line one of the interpretation "the Fund" and substituting the word "Wildlife";
(g)	by adding after the interpretation "to take" the following interpretation

"to take" in relation to any flora includes to gather, pluck, cut, pull up, destroy, dig up, remove or injure the flora or to cause or permit the same to be done by any means;

(h) by adding after subsection (1) the following subsection

(la) Where any fauna or flora is taken in any part of the State where the fauna or flora is protected, that fauna or flora shall continue to be protected notwithstanding that it may have been removed from that part of the State to another part where the same species, class or description of fauna or flora is not protected. ; and

(i)    by adding at the end thereof the following subsections

(4) The Minister may

(a) by notice published in the Government Gazette declare any class or description of plant (including any wildflower, palm, shrub, tree, fern, creeper or vine) specified in the notice which is not native to the State

No. 86.] Wildlife Conservation. [1976.

to be flora for the purposes of this Act in any part or parts of the State specified; and

(b) by notice so published vary or revoke any notice published under paragraph (a) of this subsection.

(5) Notwithstanding anything to the contrary contained in the preceding provisions of this section any plant (including any wildflower, palm, shrub, tree, fern, creeper or vine) which is a declared plant within the meaning of the Agriculture and Related Resources Protection Act, 1976 throughout the whole of the State or in any part of the State, shall not be flora for the purposes of this Act throughout the State or in that part of the State, as the case requires.

(6) The Minister may

(a) by notice published in the Government Gazette declare any class or description of flora to be protected flora for the purposes of this Act, either throughout the whole of the State or in such part or parts of the State as are specified in the notice;

(b) by notice so published, declare-

(i)   all flora; or

(ii)    all flora other than such classes or descriptions of flora as are specified in the notice,

in such part or parts of the State as is or are specified in the notice to be protected flora for the purposes of this Act; and

1976.] Wildlife Conservation. [No. 86.

(c) by notice so published, vary or revoke any notice published under paragraph (a) or (b) of this subsection. .

5. Section 9 of the principal Act is repealed and	repealed and
Section 9

re-enacted as follows-	re-enacted.
Crown

9. The provisions of this Act relating to bound in respect of

flora bind the Crown. .	flora.
Section 15

6. Section 15 of the principal Act is amended amended.

(a)	by deleting the word "No" in line one of subsection (4) and substituting the passage "Subject to section twenty-three D of this Act, no"; and
(b)	by adding after the word "fauna" in line three of subsection (5) the words "or flora".

7. Section 17C of the principal Act is amended	Section 170
amended.

(a)	by deleting the word "Fauna" where it occurs in line two of subsection (1) and in line three of subsection (2) and substituting the word "Wildlife", in both cases;
(b)	by deleting the word "and" appearing immediately after paragraph (d) of subsection (3);
(c)	by deleting the passage "Act." appearing at the end of paragraph (e) of subsection (3) and substituting the passage "Act; and"; and
(d)	by adding at the end thereof the following paragraph

(f) the money received as fees for licenses issued under section twenty-three C and twenty-three D of this Act and the money received as royalties payable for the taking of protected flora on Crown land. .

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Section 17E

amended. 8. Subsection (1) of section 17E of the principal Act is amended by adding after the word "fauna" where it occurs in line four and again in line five, the words "and flora".

Section 2 0

amended. 9. Section 20 of the principal Act is amended by

adding after the word "fauna" where it occurs

(a)	firstly and secondly in paragraph (a) of subsection (2);
(b)	three times in paragraph (b) of subsection (2);

(c) three times in subsection (2a); and

(d) in line one of subsection (4),

the words "or flora", in each case.

Section 20A.

amended. 10.

Subsection (1) of section 20A of the principal Act is amended by adding after the word "fauna" where it occurs in line three and again in line five, the words "or flora", in both cases.

Section 23

amended. 11.

Subsection (1) of section 23 of the principal Act is amended by adding after the word "fauna", twice occurring, the words "or flora", in both cases.

Section 23A

added. 12. The principal Act is amended by adding

after section 23 a new section as follows-

Property in

protected 23A. (1) The property in protected flora on

Crown	Crown land, until lawfully taken, is, by virtue
land.
of this Act, vested in the Crown.
(2) The provisions of subsection (1) of this section do not entitle any person to compensation. .

1976.] Wildlife Conservation. [No. 86.

Section 23B

13. The principal Act is amended by adding a section as follows-	added.
Protected

23B. (1) A person shall not on Crown land wilfully take any protected flora unless the

flora on

Crown

land not

to be taken

taking of the protected flora is authorised by,

without a

and carried out in accordance with the terms

license.

and conditions of, a license issued to him under

section twenty-three C of this Act.

(2) In any proceedings for an offence against subsection (1) of this section, it is a defence for the person charged to prove that the taking occurred as an unavoidable incident or consequence of the performance of any right, duty or obligation conferred or imposed upon the person by or under any Act or agreement to which the State is a party and which is ratified or approved by an Act. .

14. The principal Act is amended by adding a Stacjteir 23C

section as follows-

23C. (1) Any person may, in the prescribed I tt,renees to

form containing or accompanied by the F oita cted	e.
prescribed particulars and on payment of the prescribed fee, apply to the Minister for the issue to him of a license to take protected flora on Crown land

(a) for commercial purposes; or

(b) for scientific purposes or any prescribed purpose,

and the Minister may issue or refuse to issue

such a license.

(2) Until revoked a license issued authorises the license holder, subject to such terms and conditions as are specified in the license, to take for the purposes so specified on such areas of Crown land as are so specified and during

No. 86.] Wildlife Conservation. [1976.

such period or periods as are so specified, the classes or descriptions of protected flora so specified.

(3) Without limiting the terms or conditions which may be included in a license issued under this section, the terms and conditions on which a license to take protected flora for commercial purposes may be granted may include terms or conditions

(a)	providing that flora taken under the authority of the license be charged with payment of royalties to the Conservator of Wildlife by the license holder at such rate or rates as are specified in the terms or conditions;
(b)	requiring the license holder to ensure that any protected flora taken pursuant to the license is marked, tagged or otherwise made identifiable as flora taken by him.

(4) Any royalties payable pursuant to the terms or conditions of a license issued under this section

(a)	shall be paid by the Conservator of Wildlife into the Fund; and
(b)	may be sued for and recovered by the Conservator as a debt due to him in his capacity as such.

(5) The Minister may at any time, by notice in writing served on a person to whom a license has been issued under this section, revoke the license, but the revocation does not affect any liability or obligation incurred by the person prior to the revocation. .

1976.] Wildlife Conservation. [No. 86.

15. The principal Act is amended by adding a Man 23D

section as follows-

23D. (1) A person shall not take any Taking and

protected

protected flora on private land unless—

flora on

private land.

(a)	he is the owner or occupier of the private land; or
(b)	he is authorised so to do by the owner or occupier of the private land.

(2) A person shall not sell any protected flora taken by him on private land unless

(a) he is the holder of a commercial producer's license or a nurseryman's license issued under this section;

(b) the flora-

(i)   if taken by a person who is the holder of a commercial producer's license—is of a class or description specified in his license and is taken from the private land specified in the license; and

(ii)    if taken by a person who is the holder of a nurseryman's license—is of a class or description specified in his license and has been grown and cultivated by him on the private land specified in the license; and

(c) the flora is marked, tagged or otherwise identified in accordance with the terms and conditions of his license.

(3) Any owner or occupier of private land may on payment of the prescribed fee apply to the Minister for the issue to him of a commercial producer's license or a nurseryman's license.

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(4) An application under subsection (3) of this section shall be in the prescribed form and shall specify

(a)	the land to which the application relates;
(b)	the classes or descriptions of flora to which the application relates.

(5) Subject to subsection (6) of this section, the Minister shall issue a license to any person who has made an application in accordance with the provisions of this section, but the license shall be issued subject to such conditions as, having regard to the conservation of protected flora, the Minister considers fit, which conditions shall be endorsed upon or attached to the license.

(6) The Minister may

(a)	by notice in writing served on the person, revoke any license issued under this section if the person to whom the license has been issued is convicted of any offence against this Act; and
(b)	refuse to issue a license to a person who has been convicted of an offence against this Act. .

Section 23E

added. 16. The principal Act is amended by adding a

section as follows-

Dealings in

protected 23E. (1) A person shall not sell any

flora. protected flora unless

(a)	the sale is lawful by virtue of the provisions of section twenty-three C or twenty-three D of this Act; or
(b)	he purchased the flora from another person lawfully entitled to sell the flora to him and forthwith after the

1976.] Wildlife Conservation. [No. 86.

purchase he made or obtained a legible

record of-

(i)  the quantity and class or description of flora so purchased;

(ii)    the date of the purchase; and

(iii)   the name and address of the person from whom he purchased the flora.

(2) A person who makes or obtains a record pursuant to paragraph (b) of subsection (1) of this section shall retain the record for not less than twelve months and produce it on demand to a wildlife officer. .

Section 23F

17. The principal Act is amended by adding a section as follows-	added.
Rare or

23F. (1) In this section "rare flora" means

endangered

species of

flora for the time being declared to be rare	flora.
flora for the purposes of this section.
(2) Where the Minister is of opinion that any class or description of protected flora is likely to become extinct or is rare or otherwise in need of special protection, he may, by notice published in the Government Gazette declare that class or description of flora to be rare flora for the purposes of this section throughout the State.
(3) The Minister may vary or revoke a notice published under subsection (2) of this section by subsequent notice or notices published in the Government Gazette.
(4) Where, but for this subsection, the holder of a license issued under section twenty-three C would be entitled to take any rare flora, he shall not take any rare flora without first obtaining the further consent thereto in writing of the Minister.

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(5) A person (whether or not he is the owner or occupier of the private land) shall not take any rare flora on private land without obtaining the consent in writing thereto of the Minister, notwithstanding anything contained in section twenty-three D or a license issued thereunder.

(6) A person who takes any rare flora contrary to the provisions of this section is liable on conviction to a penalty not exceeding one thousand dollars.

(7) Where an owner or occupier of private land who has been refused consent to take rare flora on that land satisfies the Minister that he will suffer loss of use or enjoyment of the land by reason of that refusal, the Minister shall inform the Treasurer in writing accordingly and the owner or occupier shall be paid compensation for that loss at such rate or rates per annum as

(a)	is agreed between the owner or occupier and the Treasurer; or
(b)	in default of agreement, is determined by a valuer appointed by agreement between the Treasurer and the owner or occupier, or in default of agreement on such an appointment, by a valuer appointed by the Minister,

for such period, not exceeding five years, as the

loss continues. .

(8) Where compensation has been paid under subsection (7) of this section for a period of five years in respect of any particular land, the Minister shall not refuse an application by the owner or occupier of that land to take rare flora on that part of the land for the loss of use or enjoyment of which compensation has been so paid.

1976.] Wildlife Conservation. [No. 86.

(9) Notwithstanding that compensation has been paid under subsection (7) of this section, whether for a period of five years or for a lesser period, for the loss of use or enjoyment of any land, that land may at any time be taken by the Governor under and subject to the Public Works Act, 1902 for any of the purposes of this Act.

Section 27

18. Subsection (1) of section 27 of the principal Act is amended by adding after the passage "fauna," in line one, the passage "flora,".

amended.

Section 27A

19. Section 27A of the principal Act is amended

by adding after the word "fauna", where it occurs

in

amended.

(a)	lines three, seven and eleven of subsection (1); and
(b)	lines two and four of subsection (2),

the words "or flora", in each case.

Section 27B

20. Section 27B of the principal Act is amended

by adding after the word "fauna" in line five the

words "or flora".

amended.

21. Subsection (1) of section 28 of the principal Act is amended

Section 28

amended.

(a)	by adding after the word "dealings" in line one of subparagraph (iv) of paragraph (an) the words "in protected flora or"; and
(b)	by adding after the word "disposal" in line two of paragraph (c) the words "of protected flora or".

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Miscel-

laneous	22. The principal Act is amended as set out in
amend-

ments. the Schedule to this Act.

SCHEDULE.

Provision amended Amendment

Section 10 (3) (b) (iii)	Delete "indigenous".
Section 11 (1)	Delete "indigenous".
Section 11 (2) ...	Delete "indigenous".
Section 12 (1) ....	Delete "indigenous".
Section 12 (2) ....	Delete "indigenous".
Section 12D (2) .	Delete "indigenous" where

three times occurring.

Section 13 (1) ....	Delete "indigenous".
Section 28 (1) (a)	Delete "indigenous".
Section 28 (1) (ab)	Delete "indigenous".
Section 28 (1) (al) ....	Delete "indigenous".

Section 28 (1) (f) . Delete "indigenous".

By Authority: WILLIAM C. BROWN, Government Printer.