Border Fence Maintenance Act 1921 No 17 An Act to make better provision for the control of wild dogs in the Western Division; to provide for the imposition of a rate upon the owners and occupiers of land in the Western Division; to amend certain Acts; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act and commencement This Act may be cited as the Border Fence Maintenance Act 1921 and shall come into force on a date to be notified by the Governor in the Gazette. 1A (Repealed) 2 Application of Act This Act shall apply to the Western Division only. 3 Definitions (1) Unless the context otherwise requires: Authorised person means a person authorised by the Commissioner or the board. Board means the Border Fence Maintenance Board constituted under this Act. Commissioner means the person appointed under section 3AA to exercise the functions of the Commissioner for the purposes of this Act. Dog-proof fence means a fence which is sufficient for the exclusion of wild dogs. Occupier means person entitled for the time being to possession of land, and includes the resident manager where the occupier does not reside on the land. Owner includes: (a) the holder, or the holder subject to mortgage, of any lease or licence, or promise of any lease or licence, from the Crown, and (b) a person to whom the Crown has contracted to sell land under the Crown Lands Acts, and (c) persons for the time being in the authorised charge or possession of land. Queensland Border Fence means the fence known by that name and erected on or near the northern border of New South Wales and extending from or near the western border of New South Wales at its junction with the said northern border for approximately 349 kilometres easterly to a point approximately 16 kilometres east of Hungerford, other than such portion of the fence as may, from time to time, be determined by the board and notified in the Gazette. South Australian Border Fence means the fence known by that name and erected on or near the western border of New South Wales and extending from or near the northern border of New South Wales at its junction with the said western border for approximately 257 kilometres southerly, other than such portion of the fence as may, from time to time, be determined by the board and notified in the Gazette. Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016. Wild dog includes any dingo or native dog, or any dog which has become wild, or any dog which apparently has no owner and is not under control. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 3AA Appointment of person to exercise functions of Commissioner (1) The Minister may appoint a person to exercise the functions of the Commissioner for the purposes of this Act. (2) The Minister may revoke an appointment under this section at any time or for any reason. (3) A person appointed under this section (except a person who is an employee of a government sector agency within the meaning of the Government Sector Employment Act 2013) is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the person. Part 2 Border Fence Maintenance Board 3A Border Fence Maintenance Board (1) There shall be constituted for the purposes of this Act a Border Fence Maintenance Board. (2) (a) The board shall be a body corporate under the name of "The Border Fence Maintenance Board" with perpetual succession and a common seal and shall be capable by that name of suing and being sued and, subject to this Act, of purchasing, holding, granting, demising, disposing of or otherwise dealing with real and personal property and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer. (b) All courts and persons having by law or consent of parties authority to hear, receive, and examine evidence shall take judicial notice of the seal of the board affixed to any document and shall, until the contrary is proved, presume that such seal was properly affixed thereto. (2A) The board cannot employ any staff. Note— Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the board to exercise its functions. (3) The board shall consist of six members. (4) The Commissioner shall be a member and the chairperson of the board. During such time as the Commissioner is prevented by absence, illness or otherwise from acting in the office of chairperson of the board a person to be nominated by the Commissioner shall act as chairperson of the board and while so acting the person shall be deemed to be a member of the board and shall have the powers, authorities, duties and functions of the chairperson. (5) The remaining members (hereinafter referred to as appointed members) shall be appointed by the Governor. Of the members so appointed: (a) 3 are to be appointed on the nomination of Local Land Services, (b), (c) (Repealed) (d) one shall be appointed on the nomination of the Pastoralists' Association of West Darling, (e) one shall be appointed on the nomination of the New South Wales Farmers' Association Western Division Council. (6) No person shall be nominated or appointed as a member of the board unless that person is ordinarily resident in the Western Division and is ordinarily engaged in pastoral pursuits on land within that Division. (7) The provisions of the Public Sector Management Act 1988 shall not apply to or in respect of the appointment of any member of the board, and any such member shall not, in his or her capacity as such member, be subject to the provisions of that Act during his or her term of office. (8) If the association or council specified in subsection (5) (d) or (e) is dissolved or ceases to exist (or any body which has in accordance with the provisions of this subsection been substituted for any such association or council ceases to exist): (a) the Minister may, by notice published in the Gazette, declare that some other body specified in the notice (being a body which, in the opinion of the Minister, has similar objects or represents similar interests to those of or represented by the association, council or body for which it is being substituted) is to be substituted for the association, council or body concerned, and (b) subsection (5) is to be taken to have been amended by deleting the name of the association, council or body and by inserting instead the name of the body so substituted. (9) An appointed member shall, subject to this Act, hold office for the term specified in the instrument of appointment (not exceeding 3 years) and shall, if otherwise qualified, be eligible for reappointment. (10) (Repealed) (11) Meetings of the board shall be held at such times and at such places as are from time to time determined by the chairperson but a meeting of the board shall be held not less than once in every three months. (12) A quorum of the board shall consist of the chairperson of the board or the person authorised by subsection (4) to act as chairperson and two other members of the board. (13) The chairperson of the board or in the chairperson's absence the person authorised by subsection (4) to act as chairperson shall preside at all meetings of the board and, in the event of an equality of votes, shall have a casting vote as well as a deliberative vote. (14) No act or proceeding of the board shall be invalidated or prejudiced by reason only of the fact that, at the time such act or proceeding was done, taken or commenced, there was a vacancy in the office of any appointed member. (15) The appointed members shall be entitled to receive such fees and travelling or other expenses as the Minister may from time to time determine. (16) A person nominated by the Commissioner under subsection (4) is entitled, while acting in the office of the chairperson, to receive such fees and travelling or other expenses as the Minister may from time to time determine. 3B Power of the Minister in default of nomination Where any statutory corporation, association, council or body entitled to make a nomination under section 3A does not forward such nomination so as to reach the Minister within the time limited by a notice forwarded to such statutory corporation, association, council or body by the Minister and requiring it to make such nomination the Minister may make such nomination which shall, for the purposes of this Act, be deemed to have been made by such statutory corporation, association, council or body, as the case may be. 3C Extraordinary vacancy (1) An appointed member shall be deemed to have vacated office if the member: (a) dies, (b) resigns the office by instrument in writing addressed to the Minister, (c) is absent from three consecutive meetings of the board, of which reasonable notice has been given to the member either personally or in the ordinary course of post, except on leave granted by the board, (d) is convicted of a serious indictable offence, (e) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act 1958 or a person under detention under Part 7 of that Act, (f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) ceases to hold office pursuant to subsection (2). (2) The Governor may: (a) upon a request to do so being made to the Governor by any board, association, council or body on whose nomination any member was appointed to the board, or by any body which has in accordance with the provisions of subsection (8) of section 3A been substituted for any such board, association, council or body, remove that member from office, (b) for any other cause which appears to the Governor to be sufficient remove any member, other than the chairperson, from office. 3D Casual vacancy Where a casual vacancy occurs in the office of a member appointed by the Governor, the Governor may appoint a person to the vacant office. The person so appointed shall be appointed on the nomination of the statutory corporation, association, council or body on whose nomination the member whose office has become vacant was appointed, or where any body has in accordance with the provisions of section 3A (8) been substituted for any such statutory corporation, association, council or body, on the nomination of the body so substituted, and shall, subject to this Act, hold office for the term specified in the instrument of appointment (not exceeding 3 years). 3E Removal of board from office and appointment of administrator (1) Where the board has failed or neglected to make or levy rates as required by this Act or otherwise to exercise or discharge its powers, authorities, duties and functions under this Act in any material respect, the Governor may, by proclamation published in the Gazette, remove all the members of the board from office as such members. (2) Where the Governor has pursuant to subsection (1) removed the members of the board from office, the Governor may, by proclamation at the same or any subsequent time, appoint an administrator who shall have the powers, authorities, duties, functions and liabilities of the board and who shall be paid out of the Border Fence Maintenance Fund established by this Act such salary as the Governor may from time to time determine. (3) At any time after the appointment of an administrator as aforesaid, the Governor may in accordance with and subject to the provisions of section 3A appoint the persons to be appointed as members of the board under subsection (5) of that section and thereupon: (a) the Commissioner shall resume office as a member and the chairperson of the board, and (b) the administrator shall cease to hold office as such. 3F Use of services of officers and employees of the Public Service (1) The board may, with the approval of the Minister of the Department concerned, and on such terms as may be agreed upon, arrange: (a) for the carrying out by such Department or by an officer or employee of such Department of any administrative work required or authorised by or under this Act to be carried out by the board or for the compiling and keeping of any records (including the rate-book to be kept by the board under section 13) necessary for the purposes of the board, and (b) for the purposes of this Act to have access to and make use of any records or documents kept or held by any such Department. (2) The board may delegate to any member or employee of the board any of its powers, authorities, duties and functions (other than the power conferred on the board by this subsection) and any such member or employee may exercise and perform such of the board's powers, authorities, duties and functions as may have been so delegated to the member or employee. Notwithstanding any such delegation the board may continue to exercise and perform any of the powers, authorities, duties and functions so delegated. The board may at any time revoke any such delegation. 3G Rights, liabilities and property On and from the commencement of the Wild Dog Destruction (Amendment) Act 1957 the following provisions shall have effect: (a) All property (in this section referred to as transferred property) whether real or personal, which immediately before that commencement was held by the Commissioner for the purposes of this Act shall vest in and belong to the board for such purposes. (b) All moneys, liquidated and unliquidated claims which immediately before that commencement, were payable to or recoverable by the Commissioner under this Act shall be moneys, liquidated and unliquidated claims payable to or recoverable by the board. (c) All suits, actions and proceedings pending immediately before that commencement at the suit of the Commissioner in relation to any matters under this Act or the transferred property or any part thereof shall respectively be suits, actions and proceedings pending at the suit of the board. (d) All contracts, agreements and undertakings entered into for the purposes of this Act with the Commissioner and in force immediately before that commencement shall respectively be deemed to be contracts, agreements and undertakings entered into with the board. (e) The board may pursue the same remedies for the recovery of any such moneys and claims and for the prosecution of such suits, actions and proceedings as the Commissioner might have done but for the Wild Dog Destruction (Amendment) Act 1957. (f) All debts due and moneys payable by, and all claims, liquidated or unliquidated, recoverable against the Commissioner solely in relation to any matter under this Act or the transferred property or any part thereof shall be debts due and moneys payable by and claims recoverable against the board. (g) (i) Every person who immediately before that commencement was an employee of the Commissioner employed under this Act shall upon that commencement become an employee of the board. (ii) The period of service with the Commissioner of any person who by virtue of this paragraph becomes an employee of the board shall be deemed to be service with the board for the purposes of the terms and conditions, relating to annual leave, sick leave or long service leave, of any staff agreement or of any award or agreement made under the Industrial Arbitration Act 1940, or for the purposes of the Annual Holidays Act 1944 or the Long Service Leave Act 1955. (iii) Any such person shall not be entitled to claim benefits under this Act as well as under any other Act in respect of the same period of service. Part 3 Erection of dog-proof fences 4–9 (Repealed) 9A Erection of dog-proof fences by board The board may for the purpose of maintaining an efficient barrier against wild dogs enter or authorise any authorised person to enter upon any land in the vicinity of the Queensland Border Fence or the South Australian Border Fence and erect thereon a dog-proof fence or convert any existing fence into a dog-proof fence and maintain or repair such fence. 10 Authorised person not to be deemed a trespasser No authorised person or person employed by the board shall be deemed a trespasser or be liable for any damage occasioned by the person in the exercise of the person's authority or in the course of the person's employment, unless such damage is occasioned wilfully and without necessity. 11 Recovery of expenses incurred by board Any expense certified by the board as having been incurred or paid by it or on its behalf upon or in relation to any land in the exercise of any of the powers conferred on the board by section 9A shall be a debt due by the owner or occupier of the said land to the board and may be recovered by the board in any court of competent jurisdiction. Part 4 Finance Division 1 Rates 11A Definitions In this Division: year means year commencing 1 January. 12 Rate to be imposed (1) Except as provided in this section, the board shall in each year impose and collect a rate for that year not exceeding the prescribed amount per hectare per annum on all land in the Western Division, except land within an area within the meaning of the Local Government Act 1993 (other than an area that was constituted as a shire immediately before 1 July 1993), a town or a village. (1A) For the purposes of subsection (1), the prescribed amount is 1 cent or, where a larger amount is prescribed by regulation made under this Act, that larger amount. (2) The rate imposed in respect of any land shall be payable by the owner or occupier of such land and until payment thereof shall remain a charge upon such land, and shall have priority over all mortgages or other charges thereon other than debts due to the Crown: Provided that where the board certifies that it is unnecessary to continue to impose a rate, the Governor may by proclamation in the Gazette suspend the imposition and collection of such rate. (3) The board shall not in any year impose or collect a rate under subsection (1) on any land if the total area of: (a) that land, and (b) where the person liable for the rate on that land is also liable for the rates imposed under subsection (1) on any other land—that other land, is less than the minimum rateable area determined in respect of that year by the board with the approval of the Minister. (4) Where payment of the rate imposed in respect of any land is overdue and the board is of the opinion that the rate is not substantially more than it would cost the board to recover it, the board may write off that rate and, notwithstanding anything in this Act: (a) the board shall not at any time thereafter take proceedings for the recovery of that rate, and (b) that rate shall not thereafter be a charge on the land in respect of which it was imposed. (5) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. 12A Overdue rates (1) Overdue rates shall be increased in accordance with this section. (2) Where payment of the whole or any part of a rate imposed in respect of any land, in the year commencing 1 January 1986, or in a subsequent year, has not been made at the expiration of 12 months from the date when the rate was due and payable to and recoverable by the board, the amount due shall be increased by a sum calculated at the prescribed rate per cent per annum and the increase shall be deemed to be part of the rate. (3) The calculation under subsection (2) shall be made in respect only of as many complete months as have expired between the due date and the date of payment, excluding any remaining portion of a month. (4) If in any case the percentage is less than 10 cents, the increase shall be 10 cents. (4A) Despite subsection (2), if the Minister is satisfied that circumstances warrant it, the Minister may: (a) direct that an amount due not be increased in accordance with subsection (2), (b) grant an extension of time after the due date during which the amount due will not be increased, or (c) remit the payment of the whole or any part of the sum by which the amount due is increased under subsection (2). (4B) No refund shall be made as a consequence of a direction or remission under subsection (4A). (5) This section shall continue to apply to all unpaid rates notwithstanding that judgment may have been obtained in any court. 13 Record of rates (1) Particulars of the rate payable by any person shall be kept in a register. (2) The register may be kept: (a) by recording or storing the particulars by means of a mechanical, an electronic or other device, or (b) in any other manner approved by the Minister. (3) The register kept under this section shall be available for inspection: (a) in written form, or (b) in the form of a document containing a clear reproduction in whole or in part of the particulars recorded, at all reasonable times. (4) A writing that purports to reproduce the particulars of the rate payable by any person recorded or stored by means of a mechanical, an electronic or other device shall: (a) be deemed, in the absence of evidence to the contrary, to be a reproduction of those particulars, and (b) be evidence of the amount of the rate payable by the person. 14 Payment of rates (1) A notice, in or to the effect of the prescribed form, of: (a) the amount of the rate imposed in respect of any land, and (b) the date on which the rate is due and payable to and recoverable by the board, shall be given to the person liable to pay the rate. (2) A rate is due and payable to and recoverable by the board: (a) on a date specified in a notice given under this section, or (b) at the expiration of 28 days after the notice is given, whichever is the later. (3) The amount specified in a notice given under this section is payable to such person or bank, building society or credit union as is specified in the notice. (4) Notwithstanding subsection (2), the amount of any rate due may, if the board so directs, be paid by instalments. 15 Land enclosed by dog-proof fence Where any owner or occupier, or group of owners or occupiers, satisfies the board that the owner or occupier or group has enclosed the owner's or occupier's or group's land with a dog-proof fence, the rate imposed under this Act in respect of the land so enclosed shall be reduced by one-half during the period that such fence is maintained and repaired to the satisfaction of the board by such owner or occupier or group of owners or occupiers. 16 Effect of charge upon land Whenever by this Act any sum is expressed to be charged upon any land, any person thereafter becoming the owner of such land shall be deemed to have notice of such charge, and shall be liable to pay the sum so charged, or so much thereof as may for the time being be unpaid, as if he or she were the person originally liable; but nothing in this section shall operate to discharge the liability of any person previously liable therefor: Provided always that such charge shall be entered in the register kept under section 13 as against such land at the date of transfer, and it shall be the duty of the board when and so often as any land becomes chargeable with any sum under this Act, to have an entry of the same made as aforesaid. 17 Powers of mortgagee and trustee It shall be lawful for any person in whom any land is vested as mortgagee to add to the person's mortgage debt any sums expended by or recovered from the person towards the erection or maintenance or repair of a dog-proof fence upon, near, or for the benefit of such land; and it shall be lawful for any person in whom any land is vested as a trustee to raise the sums required or recovered for any such purpose by mortgage of such land in the same way as if a power to mortgage for all or any of such purposes had been contained in the instrument creating or declaring the trust. Division 2 Subsidy 18 Payment of subsidy Commencing in the year 1986, in each year there shall be paid from the Consolidated Fund to the Border Fence Maintenance Fund, without further appropriation than this Act: (a) a sum, determined by the Treasurer, that does not exceed the total amount of rates collected under this Act during the preceding year, or (b) the sum of $100,000, whichever is the greater. Division 3 Border Fence Maintenance Fund 19 Border Fence Maintenance Fund (1) The board is to maintain an account or accounts with a bank, building society or credit union approved by the Treasurer. That account or those accounts are to be known as the Border Fence Maintenance Fund. (2) All money received from all sources under this Act is to be paid into the fund. (3) The regulations may govern the operation of the fund. (4) The board shall upon a request to do so being made by any person duly authorised in writing by the Auditor-General or by the Minister produce or cause to be produced for inspection to that person all books, accounts, agreements, vouchers, letters or other documents, kept or held by it and relating to any matter under this Act. (5) The board may invest money in the fund: (a) if the board is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the board is permitted to invest money under that Part, or (b) if the board is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in accordance with the Trustee Act 1925 or in any other way approved by the Minister with the concurrence of the Treasurer. 20 Purposes for which Border Fence Maintenance Fund may be used The Border Fence Maintenance Fund, after deduction of the cost of collection of such moneys and of necessary supervision and administration shall be used by the board for: (a) the erection, conversion, maintenance or repair of the Queensland Border Fence, the South Australian Border Fence and any fence which the board may erect, convert, maintain or repair under section 9A and any purpose connected therewith, (b) the payment of fees and travelling or other expenses, which the appointed members of the board are entitled to receive under section 3A (15), and remuneration and allowances to employees of the board, (c) the repayment of money borrowed under this Act, (d) the payment of interest on money borrowed under this Act, (e) the payment of the expenses of the board in borrowing money under this Act, (e1) the expenditure incurred in the control of wild dogs in the Western Division, and (f) any other purpose approved by the Minister. Division 4 Stamp duty 20A Stamp duty No stamp duty is payable under the Stamp Duties Act 1920 in respect of any conveyance of property to the board. 20B–20H (Repealed) Part 5 Miscellaneous 21 (Repealed) 22 Description of land For the purposes of this Act the description of any land shall be sufficient if it allows no reasonable doubt as to what land is referred to. 23 Service of notice Any notice given under or for the purpose of this Act, or any regulation thereunder, may be served by registered letter, directed to the person to whom the notice is addressed at the last known place of abode or business of such person in this State. 24–26 (Repealed) 27 Offences Any person who: (a), (b) (Repealed) (c) leaves open any gate in a dog-proof fence, or (d) without lawful authority (the proof of which shall be on the person claiming to have the same), destroys, injures, tears up, depresses, cuts or removes any portion of a dog-proof fence or gate, or fence or gate apparently intended to protect any land from wild dogs, or excavates under, or in any way tampers with any portion of such fence or gate, so as to thereby endanger its effectiveness as a dog-proof fence or gate, or (e) attempts to do any such act as is hereinbefore mentioned, or procures the same to be done, is guilty of an offence and liable on conviction to a penalty not exceeding 10 penalty units. 28 (Repealed) 29 Personation or obstruction of authorised person (1) Any person who falsely represents himself or herself to be, or personates, an authorised person is guilty of an offence and liable on conviction to a penalty not exceeding 10 penalty units. (2) Any person who hinders or obstructs the Commissioner, or the board, or any member of the board, or any authorised person in the discharge of any duty or the doing of any work imposed or authorised by this Act or necessary thereunder, or who causes the Commissioner or the board, or any member of the board, or any authorised person to be so hindered or obstructed, is guilty of an offence and liable on conviction to a penalty not exceeding 10 penalty units. 30 Proceedings for offences Proceedings for an offence against this Act or the regulations made under this Act shall be dealt with summarily before the Local Court. 31 Regulations (1) The Governor may make regulations as to all matters that by this Act are required or permitted to be prescribed or that are necessary or convenient for giving effect to the objects and provisions of this Act. (2) (Repealed) Schedule 1 Savings and transitional provisions Part 1 Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act 2011 1 Terms of office of members of the Wild Dog Destruction Board The amendments to this Act made by the Statute Law (Miscellaneous Provisions) Act 2011 apply only to members of the Wild Dog Destruction Board appointed or reappointed after the commencement of those amendments. Part 2 Provision consequent on enactment of Local Land Services Act 2013 2 Members of Wild Dog Destruction Board A person who held office as a member of the Wild Dog Destruction Board under section 3A (5) (a) or (b) as in force immediately before those provisions were repealed by the Local Land Services Act 2013 is taken to have been appointed under section 3A (5) (a) as inserted by that Act. Part 3 Provisions consequent on enactment of Biosecurity Act 2015 3 Change of name of Board (1) The Border Fence Maintenance Board is a continuation of, and the same entity as, the Wild Dog Destruction Board that was constituted under this Act before its amendment by the Biosecurity Act 2015. (2) A reference in any Act or any instrument to the Wild Dog Destruction Board, to the extent that it relates to anything that is done or occurs after the commencement of the amendments made to this Act by the Biosecurity Act 2015, is taken to be a reference to the Border Fence Maintenance Board. 4 Change of name of Fund (1) The Border Fence Maintenance Fund is a continuation of, and the same fund as, the Wild Dog Destruction Fund that was maintained under this Act before its amendment by the Biosecurity Act 2015. (2) A reference in any Act or any instrument to the Wild Dog Destruction Fund, to the extent that it relates to anything that is done or occurs after the commencement of the amendments made to this Act by the Biosecurity Act 2015, is taken to be a reference to the Border Fence Maintenance Fund. (3) In particular, any approval given by the Minister or the Treasurer in relation to the Wild Dog Destruction Fund that has effect for the purposes of section 19 is taken to be an approval in relation to the Border Fence Maintenance Fund. 5 Continuation of certain provisions (1) This Act, as in force immediately before its amendment by the Biosecurity Act 2015, continues to apply to any notice given to an owner or occupier of land under section 6 or 8 before their repeal by that Act. (2) Except as expressly provided for by this Act or the regulations under this Schedule, the amendment of any Act or regulation by the Biosecurity Act 2015 does not affect the continued operation of that Act or regulation: (a) in respect of a notice referred to in subclause (1) or anything done under or in connection with such a notice, or (b) in respect of any appeals or other proceedings arising under or in connection with a provision of this Act repealed by the Biosecurity Act 2015.