SYDNEY HARBOUR FEDERATION TRUST REGULATIONS 2021 (F2021L01255) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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SYDNEY HARBOUR FEDERATION TRUST REGULATIONS 2021 (F2021L01255)

Explanatory STATEMENT

Issued by Authority of the Minister for the Environment

Sydney Harbour Federation Trust Act 2001

Sydney Harbour Federation Trust Regulations 2021

Legislative Authority

Section 73 of the Sydney Harbour Federation Trust Act 2001 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act. The regulations may make provision relating to any of the matters listed at subsection 73(2) of the Act.

Background

The Sydney Harbour Federation Trust (the Harbour Trust) was established in 2001 as a transitional body by the Act. The Harbour Trust was established to remediate and manage prominent former Defence sites in the Sydney Harbour region for the benefit of present and future generations of Australians, with an eventual transfer of suitable land to New South Wales. As a result of amendments to the Act made by the Sydney Harbour Federation Trust Amendment Act 2021, the Harbour Trust is an ongoing body.

The Sydney Harbour Federation Trust Regulations 2021 (the Regulations) will repeal the Sydney Harbour Federation Trust Regulations 2001 (the 2001 Regulations). These Regulations provide transitional provisions to ensure licences and permits under the 2001 Regulations continue upon repeal of those 2001 Regulations.

Purpose

As the Harbour Trust now has ongoing responsibility for the planning and management of Trust land, it is important that the sunsetting regulations be replaced with new regulations. The purpose of the Regulations is to remake and improve the 2001 Regulations prior to their automatic repeal (sunsetting) on 1 October 2021.

The Regulations are substantively the same as the 2001 Regulations, but include minor differences that ensure the Harbour Trust is empowered to regulate activities on its land effectively, and update the Regulations in line with modern drafting practice.

Part 2 of the Regulations allows the Harbour Trust to grant licences or permits to authorise activities on Trust land. Activities that, in the absence of a licence, permit or defence under Part 2 of the Regulations, are prohibited on Trust land include the following:

(a) certain building and commercial activities on Trust land;

(b) the sale and supply of liquor on Trust land;

(d) bringing certain animals, plants or poisonous substances onto Trust land; and

(e) other activities on Trust land, provided in full at Part 2 of the Regulations.

Part 2 also allows for the use and parking of vehicles on Trust land. Part 3 deals with the appointment, and functions and powers, of rangers. Part 4 deals with miscellaneous matters such as the charging of fees by the Harbour Trust, and delegation of powers by the Harbour Trust.

Consultation

In the course of developing the Regulations, the Harbour Trust undertook consultation on an exposure draft of the Regulations over a period of four weeks from 22 June 2021 to 19 July 2021. Several submissions from stakeholders in the Harbour Trust community were received, the majority of which broadly supported or offered no comment on the exposure draft of the Regulations.

Four submissions were received from members of the public, all of which were broadly supportive of the Regulations.

The Office of Best Practice Regulation (OBPR) has advised that the remaking of the Regulations is unlikely to have more than a minor regulatory impact and that accordingly, a Regulation Impact Statement is not required (OBPR Reference 43155).

Other

The Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility with human rights is set out in Attachment B.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS

The following abbreviations and terms are used in this Explanatory Statement:

2001 Regulations	Sydney Harbour Federation Trust Regulations 2001
Act	Sydney Harbour Federation Trust Act 2001
Commonwealth Guide	A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
Criminal Code	Criminal Code 1995
Harbour Trust	Sydney Harbour Federation Trust
Land	Under section 3 of the Act, includes buildings and improvement on the land
Legislation Act	Legislation Act 2003
Minister	means the Minister responsible for the administration of the Act, currently the Minister for the Environment
Regulations	Sydney Harbour Federation Trust Regulations 2021
Trust land	Under section 3 of the Act, means any land that: (a) vests in the Harbour Trust; and (b) is held by the Harbour Trust from time to time for and on behalf of the Commonwealth

Attachment A: Notes on Regulations

Part 1: Preliminary

Section 1 Name

Section 1 provides the name for the regulations, the Sydney Harbour Federation Trust Regulations 2021 (the Regulations).

Section 2 Commencement

Section 2 sets out a table providing the commencement date for the Regulations. The Regulations commence the day after this instrument is registered.

Section 3 Authority

Section 3 provides that the Regulations are made under the Act.

Section 4 Schedules

Section 4 provides that each instrument specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule. The instrument repealed is the 2001 Regulations.

Section 5 Simplified outline of this instrument

Section 5 provides a simplified outline of the Regulations. The simplified outline is included to assist the reader to understand the substantive provisions of the Regulations. It is not intended to be comprehensive. The reader should rely upon the substantive provisions.

Section 6 Definitions

Section 6 provides a dictionary to define certain words and expressions used in the Regulations.

Section 7 Meaning of driver and rider

Section 7 provides a meaning of 'driver' and 'rider', which includes any person who is driving, or appears to be the driver of, a vehicle or riding a motorcycle, bicycle or animal-drawn vehicle, but does not include a passenger. References to 'driver' and 'driving' in the Regulations include a reference to 'rider' and 'riding', unless otherwise expressly stated.

Part 2: Activities on Trust land

Background - Strict liability

Strict liability applies for all the offences contained within the Regulations, having regard to A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Commonwealth Guide) and the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation. The use of strict liability is considered appropriate for the offences in the Regulations as:

The offences are not punishable by imprisonment.
The offences are subject to a maximum penalty of 10 penalty units for an individual.
The actions that trigger the offences are simple, readily understood and easily defended. They concern matters related to people's enjoyment of Trust land, including banning littering, disruptive activities, conducting commercial activities without a licence or permit, parking controls, and other matters.
Offences relating to people's activities on Trust land need to be dealt with expeditiously to ensure public confidence in the Harbour Trust's regulatory regime. The offences in the Regulations are such that a ranger can easily make an assessment, allowing a penalty to be imposed immediately to effectively deter offenders.
The offences are subject to an infringement notice scheme. Infringement notice schemes supplement offence and civil penalty provisions to provide an alternative to a prosecution for an offence. Section 65F of the Act provides that strict liability offences against the Act or the Regulations are subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, allowing Harbour Trust rangers a simple and immediate enforcement mechanism to regulate prohibited activities on Trust land. The Commonwealth Guide provides that strict liability should apply to all physical elements of an offence that is subject to an infringement notice scheme. The offences contained in the Regulations are strict liability to remain consistent with the Commonwealth Guide.

The defence of mistake of fact is available for the strict liability offences under the Regulations (sections 6.1 and 9.2 of the Criminal Code). Further, the existence of strict liability does not make any other defence unavailable (subsection 6.1(3) of the Criminal Code).

Division 2.1 - Simplified outline of this Part

Section 8 Simplified outline of this Part

Section 8 provides a simplified outline of the Part, outlining that this Part provides for prohibition of activities on Trust land, and that the Trust has a power to grant licences or permits allowing otherwise prohibited activities to be carried out, close areas of Trust land and give safety directions, and erect notices to inform persons about matters under the regulations or the Act. This Part further covers the use and parking of vehicles on Trust land.

As noted above, the simplified outline is intended to assist the reader to understand the substantive provisions and is not comprehensive. The reader should rely upon the substantive provisions.

Division 2.2 - Licences and permits

Section 9 Trust may grant licences or permits

Section 9 provides that the Harbour Trust may authorise persons to conduct activities otherwise prohibited by the granting of a licence or permit. An application for a licence or permit must be in writing. The Harbour Trust are not required to deal with an application if any fee payable in respect of the application is unpaid, but have the discretion to do so, for example if an application fee is waived for a community group.

In considering whether to grant a licence or permit, the Harbour Trust must have regard to the objects of the Harbour Trust set out in section 6 of the Act. If a licence or permit is granted, then the Harbour Trust must issue a licence or permit document to the person to whom it is granted.

Section 10 Conditions of licences and permits

Section 10 provides that a licence or permit is subject to the conditions, if any, specified in the licence or permit. Subsection 10(2) provides that a licence or permit must not authorise a person to sell or supply liquor to persons under 18 years of age. Subsection 10(3) provides that a person commits an offence if a licence or permit has been granted subject to a condition, and a person does an act or omits to perform an act that contravenes the condition. The penalty for the offence is 10 penalty units. The offence is strict liability.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 10 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Strict liability is thus necessary to ensure that the Harbour Trust is not required to devote resources to establishing certain background facts that may be peculiarly within the knowledge of the defendant.

Section 11 Variation and revocation of licences and permits

Subsection 11(1) provides that the Harbour Trust may vary or revoke a licence or permit on the Harbour Trust's own initiative, or if it receives a written request from the holder of the licence or permit. Subsection 11(2) provides that in deciding whether to vary or revoke a licence or permit, the Harbour Trust may have regard to whether the variation or revocation is consistent with the objects of the Harbour Trust set out in section 6 of the Act, and whether the holder of the licence or permit has complied with the conditions (if any) specified in the holder's licence or permit document. Further, in the case of revocations, the Harbour Trust may consider whether a force majeure or other disruptive event has occurred, or is occurring, that means it is no longer safe, practicable or desirable to allow the activity authorised by the licence or permit.

Subsection 11(3) provides that, if a licence or permit is varied, then the Harbour Trust must issue a new licence or permit document to the licence or permit holder. Subsection 11(4) further provides that a new licence or permit may specify conditions in accordance with section 10.

Section 12 Notice and review of decisions relating to licences and permits

Section 12 provides that the Harbour Trust must give a person written notice of a decision to:

* refuse to grant a licence or permit;

* refuse to vary or revoke a licence or permit as requested by the holder of the licence or permit;

* vary a licence or permit on the Harbour Trust's own initiative; or

* revoke a licence or permit.

The notice must include reasons for the decision. Subsection 12(4) provides that these decisions are subject to merits review, and that a person may appeal to the Administrative Appeals Tribunal for review of these decisions.

Division 2.3 - Activities that are not offences under this Part

Section 13 Activities that are not offences under Division 2.4 or Division 2.5

Section 13 provides the circumstances in which offence provisions in Division 2.4 or Division 2.5 do not apply. These circumstances are where an activity is:

* provided for by, and carried out in accordance with, a plan, licence, lease or permit issued by the Harbour Trust;

* carried out by, or on behalf of, or at the request of the Harbour Trust or a ranger;

* carried out for the construction, repair or maintenance of a public utility or facility and is authorised by the Harbour Trust;

* carried out by an agency of the Commonwealth or New South Wales and is reasonably necessary for law enforcement;

* reasonably necessary to deal with an emergency involving a serious threat to human life or property;

* occurs because of an accident, other than an accident caused by negligent or reckless behaviour of the person engaging in the activity; or

* carried out by a person who is complying with a direction given to the person by a ranger or a police officer or emergency services officer in the performance of the officer's duties.

A defendant bears an evidential burden in relation to a matter in this section, if relying on one of these matters as a defence. This is because the existence of one of the listed circumstances in which an offence provision does not apply for an otherwise prohibited activity is peculiarly in the knowledge of the defendant. For example, a defendant is able to provide facts about the circumstances that led to them carrying out an activity such as undertaking a building activity prohibited by section 14. A defendant is readily able to provide particulars about the arrangement or circumstances that would have led to them undertaking these activities. If they were not able to do so, the defence provided by this section would not be available.

Further, authorisation as a result of a licence, lease, plan or authorisation from the relevant Commonwealth or New South Wales agency is information that is readily able to be provided by a defendant, as it is expected that they would have a copy of such an authorisation issued.

Division 2.4 - Prohibited or regulated activities

Section 14 Building activities etc.

Section 14 provides that a person commits an offence if the person carries out building and building-related activities on Trust land. The penalty for the offence is 10 penalty units. The offence is strict liability.

Section 15 Commercial activities etc.

Subsection 15(1) provides that a person commits an offence if the person undertakes commercial activities on Trust land. This includes:

* selling or hiring goods;

* using audio or video equipment for a commercial purpose;

* offering services for fees gain or reward;

* distributing or displaying advertising matter;

* weddings;

* busking; or

* conducting or participating in organised sporting activities or events.

The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and the offence provides an appropriate offence-specific defence at subsection 15(2) which the defendant could rely upon.

Subsection 15(2) creates an exemption to the offence of displaying advertisements, if the advertisements are on clothing or personal items carried by the person, or on a vehicle, as long as that vehicle is not being driven or parked wholly or mainly for the purpose of displaying an advertisement. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant. For example, if it appeared to a ranger that a person was displaying an advertisement on their clothing or personal items, or on a vehicle, then it would be within the knowledge of the defendant to explain that this was a stylistic personal choice.

Section 16 Hazardous activities

Section 16 provides that a person commits an offence if the person undertakes hazardous activities on Trust land. This includes:

* lighting fires, barbecues or stoves that are not already part of a cooking facility provided by the Harbour Trust;

* carrying or setting off fireworks; or

* landing, launching or taking off hot air balloons or any other aircraft.

The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

Section 17 Possession etc. of firearms

Subsection 17(1) provides that a person commits an offence if the person carries, discharges, or is in possession of, a firearm on Trust land. The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exists. Strict liability is appropriate because the elements of the offence are simple and readily understood, section 13 provides appropriate defences which the defendant could rely upon, and section 17 provides an appropriate offence-specific defence at subsection 17(2) which the defendant could rely upon.

An exemption from the offence at subsection 17(1) is provided at subsection 17(2). The offence does not apply to police officers or persons who hold a licence under the Security Industry Act 1997 (NSW), and is carrying out functions authorised by the licence. A defendant bears an evidential burden if relying on this exemption as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant. For example, a police officer or a security licence holder could readily demonstrate his or her credentials, thus demonstrating that they were an appropriate person to be in possession of, or using a firearm, on Trust land.

Section 18 Damage to or removal of things from Trust land

Section 18 provides that a person commits an offence if:

* the person does an act that results in the defacement, destruction, damage to, , or interference with any building, structure, equipment, notice, sign, barrier, buoy, cultural feature, natural feature, tree, plant or other vegetation on Trust land; or

* the person removes any building, structure, equipment, notice, sign, barrier, buoy, cultural feature, natural feature, tree, plant or other vegetation on Trust land.

The penalty for the offences is 10 penalty units. The offence is a strict liability offence. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offence is only subject to a maximum penalty of 10 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 19 Public assemblies

Section 19 provides that a person must notify the Harbour Trust if the person intends to hold a public assembly on Trust land. The Harbour Trust is able to prohibit the public assembly if:

* the assembly is a commercial activity;

* the proposed number of participants may result in public safety concerns due to the size or area of Trust land on which the assembly is proposed to be held; or

* is likely to result in violence, endanger the safety or security of individuals, or severely damage Trust land or property; or

* interfere with the rights of other persons to enjoy Trust land.

If the Harbour Trust decided to prohibit a public assembly, then it would have to provide written notice of the decision and the reasons for the decision. Subsection 19(4) provides that a person may apply to the Administrative Appeals Tribunal for review of the decision if the Harbour Trust decides to prohibit a public assembly. Subsection 19(5) provides a definition for the term 'public assembly'.

Section 20 Dumping of waste, littering etc.

Section 20 provides that a person commits an offence if the person:

* discharges or leaves on Trust land any minerals, mineral waste or other solid waste, or any other noxious, offensive or polluting substances (subsection 20(1)); or

* releases liquid or gaseous material on Trust land and the release is likely to pollute the air, soil, water or watercourse, be harmful to any plant or animal, or be harmful or offensive to another person (subsection 20(2)); or

* leave litter, dung or other refuse on Trust land, or in an area or receptacle on Trust land, that is not approved or provided for that purpose by the Harbour Trust (subsection 20(3)).

The penalty for each of the offences is 10 penalty units. The offences are strict liability offences. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 20 provides an appropriate offence-specific defence at subsection 20(4) which the defendant could rely upon.

An exemption from the offences at subsections 20(1) and (2) is provided at subsection 20(4), if the substance is a herbicide, pesticide or other poisonous substance, as those substances are addressed in section 21. A defendant bears an evidential burden if relying on this exemption as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant. For example, if it appeared to a ranger that a person was polluting Trust land, then it would be within the knowledge of the person to explain that the substance in their possession was herbicide, pesticide or another poisonous substance. This means that the person's activity would instead be regulated by section 21, which provides for use of poisonous substances.

Section 21 Use of poisonous substances

Section 21 provides that a person commits an offence if the person uses or brings onto Trust land a pesticide, herbicide or other poisonous substance. The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and the offence provides an appropriate offence-specific defence at subsection 21(2) which the defendant could rely upon.

An exemption is provided at subsection 21(2) for pesticides, herbicides or other poisonous substances, if they were brought on to Trust land, or reasonably used on Trust land, for a domestic purpose. This is to ensure regular activities conducted by the Harbour Trust's residential and commercial tenants, such as cleaning and gardening, are not an offence. A defendant bears an evidential burden if relying on these exemptions as a defence. This is because a defence based on this exception is peculiarly in the knowledge of the defendant. For example, if it appeared to a ranger that a person was polluting Trust land with herbicide, pesticide or other poisonous substances, then it would be within the knowledge of the defendant to explain that they were using these products for a domestic purpose, such as maintaining a private garden or controlling pests within their residential or commercial tenancy. Subsection 21(3) provides a definition of a 'domestic purpose'.

Section 22 Animals on Trust land

Subsection 22(1) provides that a person commits an offence if the person causes or allows an animal the person owns or is in charge of, to enter or remain in any of the following places on Trust land:

* Cockatoo Island;

* North Head Sanctuary;

* Georges Heights Oval;

* Middle Head Oval;

* Drill Hall Common; and

* a building.

Subsection 22(3) provides that a person commits an offence if the person causes or allows an animal the person owns or is in charge of, to enter or remain anywhere else on Trust land, and the animal is not at all times restrained on a lead or by other reasonable means.

Subsection 22(4) provides that a person commits an offence if the person brings an animal onto, or has charge of an animal, on Trust land, and the person fails to remove the animal from Trust land. This offence only applies to persons who live on Trust land when they cease to live there. In any other case it would apply when the person leaves Trust land.

The penalty for these offences is 10 penalty units. The offences are strict liability offences.

The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 22 provides an appropriate offence-specific defence at subsection 22(2) which the defendant could rely upon.

An exemption from the offence at subsection 22(1) is provided at subsection 22(2) for assistance animals used by a person with a disability, as long as the animal is at all times restrained by a lead or other reasonable means. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exception is peculiarly in the knowledge of the defendant. For example, if it appeared to a ranger that a person was committing an offence by causing or allowing an animal to enter or remain at large on the places on Trust land where animals are prohibited, and it was not immediately apparent that the animal was an assistance animal, it would be within the knowledge of the defendant to demonstrate that his or her animal is an assistance animal. Under section 6 the term 'assistant animal' has the same meaning as in the Disability Discrimination Act 1992. Demonstrating that an animal is an assistance animal could include showing evidence of the animal's accreditation, which would be an Assistance Animal Permit if issued by New South Wales.

Section 23 Protection of animals on Trust land

Subsection 23(1) provides that a person commits an offence if the person carries or sets a trap, deposits any poisonous bait, hunts, interferes with, hurts or captures an animal, takes or interferes with an animal's nest, egg, habitation or resting place, or feeds an animal, on Trust land.

Subsection 23(2) provides that a person commits an offence if the person drops poisonous bait onto Trust land from an aircraft.

The penalty for the offences is 10 penalty units. The offences are strict liability offences. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 23 provides an appropriate offence-specific defence at subsection 23(3) which the defendant could rely upon.

Subsection 23(3) provides an exemption to the offence at subsection 23(1), such that the offence of feeding an animal does not apply in relation to an animal owned by, or in the charge of, the person. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exception is peculiarly in the knowledge of the defendant. For example, if a person was feeding his or her own animal, and it was not readily apparent that this was the case, it would be within the knowledge of the defendant to demonstrate that the animal in question was actually owned by, or in the charge of, the person in question.

Section 24 Plants on Trust land

Subsection 24(1) provides that a person commits an offence if the person brings a plant onto, or possesses a plant on, Trust land.

Subsection 24(3) provides that a person commits an offence if the person cultivates or propagates a plant on Trust land.

The penalty for these offences is 10 penalty units. The offences are strict liability offences.

The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 10 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 24 provides an appropriate offence-specific defence at subsection 24(2) which the defendant could rely upon.

Subsection 24(2) provides an exemption to the offence at subsection 24(1) for plants brought onto Trust land as food. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant. For example, if it appeared to a ranger that a person appeared to be bringing onto, or possessing a plant on, Trust land that did not appear to be food, then it would be within the knowledge of the defendant to explain that this plant was intended as food.

Section 25 Use of vehicles on Trust land

Section 25 provides that a person commits an offence if the person drives a vehicle on Trust land that is not a road, or, if the vehicle is a bicycle, on Trust land that is not a road or a cycling path. The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

Section 26 Use of vessels etc

Subsection 26(1) provides that a person commits an offence if the person uses, anchors or moors any vessel or other watercraft, or secures a vessel to a wharf of the Harbour Trust, in any waters within Trust land. The term 'wharf of the Trust' is defined in subsection 26(3) to mean a wharf (including a pier, jetty, landing stage or dock) that is vested in or managed by the Harbour Trust, and within Trust land.

The penalty for the offence is 10 penalty units. The offence is a strict liability offence. The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 10 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 27 Taking marine life

Section 27 provides that a person commits an offence if the person fishes, takes or removes any marine life, or uses or sets any fishing net, fish trap or other equipment for fishing, in any waters within Trust land. The penalty for the offence is 10 penalty units. The offence is a strict liability offence.

Section 28 Sale and supply of liquor on Trust land

Subsection 28(1) provides that a person commits an offence if the person sells or supplies liquor on Trust land. Subsection 28(2) further provides that a person commits an offence if the person, on Trust land, sells or supplies liquor to a person who is under 18 years of age. The note 2 at subsection 28(3) clarifies that a licence or permit granted under section 9 must not specify conditions to the licence or permit that effectively authorises activities referred to in subsection 28(2), that is, the sale or supply of alcohol to a person under 18 years of age. This is to reflect that, while the Harbour Trust may wish to grant a licence or permit to a business that wishes to sell or supply liquor on Trust land, this power to grant licences or permits for otherwise prohibited activities should not allow liquor to be sold or supplied to persons under 18 years of age.

The penalty for the offences at subsections (1) and (2) is 10 penalty units. The offences are strict liability offences. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 10 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 29 Other activities

Subsection 29(1) provides that a person commits an offence if the person conducts or participates in games or activities, or operates any sound-generating devices, in a manner that unduly interferes with the amenity of the land. The penalty for the offence is 5 penalty units.

Subsection 29(2) provides that a person commits an offence is the person acts in a manner that is disorderly, offensive or indecent, or disturbs or annoys other persons engaged in lawful use of Trust land. The penalty for the offence is 5 penalty units.

Subsection 29(3) provides that a person commits an offence if the person does any of a number of specified activities on Trust land:

* cause a remotely controlled device like a toy plane or a drone to be flown or operated;

* camp or use facilities for sleep overnight, erect a tent or other temporary shelter for accommodation;

* paint, erect or affix decorations, signs and equipment;

* climb trees, sculptures, decorations, flagpoles and other fixtures;

* ride or use skate boards, roller skates, in-line skates or similar equipment; or

* play or practice golf.

The penalty for the offence is 5 penalty units.

Subsection 29(4) provides that a person must not swim in any waters within Trust land. The penalty for the offence is 5 penalty units.

The offences under section 29 are strict liability. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences existed. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 30 Closure of a place on Trust land

Section 30 provides that the Harbour Trust may close a place on Trust land. In deciding whether to close a place on Trust land, the Harbour Trust must have regard to the objects of the Harbour Trust, set out in section 6 of the Act. The closure must be indicated by signs, notices, barriers or buoys, or a combination of any of these.

Subsection 30(1) provides that a person commits an offence if the person enters a place closed on Trust land in accordance with this section. The penalty for the offence is 5 penalty units. The offence is a strict liability offence. The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exists. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Subsection 30(6) provides that a person may apply to the Administrative Appeals Tribunal for merits review of the Harbour Trust's decision to close a place on Trust land.

Section 31 Failing to comply with safety directions

Section 31 provides that a ranger may give a safety direction to a person, or another person, if the ranger believes that the safety of a person on Trust land is, or is likely to be, endangered.

Subsection 31(2) provides that a person commits an offence if they fail to comply with a safety direction given to them. The penalty for the offence is 5 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 32 Trust may erect notices

Section 32 provides that the Harbour Trust may erect a notice at a place on Trust land for the purposes of informing persons about a requirement or a matter in the Act, or a requirement or a matter prescribed by the Regulations. A notice must be clearly legible and placed in an appropriate place. If the notice relates to an area of land, either the whole of an area or a part, then the notice must be placed in a conspicuous place in the vicinity of the area, or part of that area, to which the notice relates, or the entrance to that area, or part of that area. If the notice relates to a building, the notice must be placed at or near the entrance to that building.

A notice may only inform persons about requirements or matters that are already contained in the Act or the Regulations but cannot create additional requirements. For example, notices may include specific references to offences contained in Division 2.4 of these Regulations, noting there are prohibitions on littering, having animals on Trust land, or operating remote controlled devices like drones, and providing the appropriate penalty if an offence is committed.

Section 33 Limit on prosecution

Section 33 provides that the Harbour Trust must not bring a prosecution against a person for an offence mentioned in Division 2.4, in respect of a person's activity that is subject to an order given under section 65B (Trust may give orders) of the Act. Section 65B of the Act provides that the Harbour Trust may give an order to any person engaged in promoting, conducting or carrying out an activity on Trust land, relating to whether and how that activity may be carried out. This includes where the Harbour Trust reasonably believes that an activity contravenes the Act or the Regulations.

Section 65D of the Act provides that a person commits an offence if a person who is subject to an order given under section 65B contravenes that order, which means an offence can still be applied if a person's activity is subject to an order. The purpose of section 33 is to avoid duplication in the Harbour Trust's compliance response to activities that contravene the Regulations.

Division 2.5 - Parking of vehicles

Subdivision A - General

Section 34 Parking control signs

Section 34 provides that the Harbour Trust may erect a parking control sign at a place on Trust land for the purpose of regulating parking or the use of vehicles on Trust land. A notice must be clearly legible. If the notice relates to an area of land, either the whole of an area or a part, then the notice must be placed in a conspicuous place in the vicinity of the area, or part of that area, to which the notice relates, or the entrance to that area, or part of that area. If the notice relates to a length of road, the notice must be placed at the beginning and end of that length of road, or in a conspicuous place or place along that length of road.

A parking control sign may apply generally or in a way that is limited to specified exceptions or factors, or differently according to specified factors, and apply differently according to specified factors of a specified kind. A parking control sign may also specify the days and times during that the sign applies, place conditions on which vehicles may be used or parked, and specify a fee to be paid to park in the area, part of an area, or length of road, to which the notice relates.

Section 35 Meaning of certain information on parking control signs

Section 35 provides the meaning of certain information on parking control signs. This includes:

* the meaning of numbers on signs, particularly when placed near the letter 'P', as shown in example signs provided at section 34;

* the meaning of numbers when placed with the word 'minute' immediately to the right of the letter 'P';

* the words 'ticket' and 'ticket area';

* references to marked spaces;

* the words 'every day'; and

* providing that any other information on a parking control sign has effect according to its terms.

Section 36 Provision for persons with disability

Section 36 provides the meaning of 'covered by a disability exemption', which provides for an exemption for parking offences found at Subdivision B of Division 2.5 of the Regulations. A driver is covered by a disability exemption if the driver's vehicle displays a parking permit for the conveyance of persons with disability, and the vehicle is being used to convey the person with disability to whom the authority was issued, or by an organisation to which the authority was issued for the conveyance of a person with disability. A driver needs to otherwise comply with the conditions of use of the permit.

Subdivision B - Offences

Section 37 Parking in areas other than parking areas

Section 37 provides that a driver commits an offence if the driver parks a vehicle in an area of, or on a length of road on Trust land that is not a parking area. The penalty for the offence is 5 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 38 Parking for longer than indicated

Section 38 provides that a driver commits an offence if the driver parks continuously on a length of road, or in an area to which a parking control sign applies, for longer than the period indicated by the parking control sign. The penalty for the offence is 3 penalty units. The offence is a strict liability offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 3 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and the offence provides an appropriate offence-specific defence at subsection 38(2) which the defendant could rely upon.

Subsection 38(2) provides that this section does not apply if the driver is covered by a disability exemption. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exemption is readily available to the defendant. For example, if it appeared to a ranger that a person appeared to be parking for longer than indicated, it would be within the power of the defendant to readily provide evidence of their disability exemption, such as a parking permit.

Section 39 Parking in ticket parking areas

Section 39 provides that a driver must comply when parking in a ticket parking area.

Subsection 39(1) provides that a driver commits an offence if the driver parks in a ticket parking area, unless a current parking ticket is displayed on the dashboard of the driver's vehicle clearly visible to persons outside their vehicle. Subsection 39(2) provides a definition for 'ticket parking area’.

Subsection 39(4) provides that a driver commits an offence if the driver allows their vehicle to remain parked in a ticket parking area after the expiry of the parking ticket displayed in or on the driver's vehicle.

Subsection 39(5) provides that a driver commits an offence if the driver allows their vehicle to remain parked in a ticket parking area for more than the period of time indicated on the parking control sign or signs that designate the area as the maximum time for which a vehicle may be parked in the area.

The penalty for the offences is 3 penalty units. The offences are strict liability. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences existed. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 3 penalty units, section 39 provides appropriate offence-specific defences at subsections 39(3) and 39(6) which the defendant could rely upon, and section 13 provides appropriate defences which the defendant could rely upon.

Subsection 39(3) provides an exception to the offence at subsection 39(1), if a driver obtains and displays a parking ticket in accordance with this section immediately after parking a vehicle. Subsection 39(6) provides further exceptions to these offences, if a driver parks for a period not exceeding the period for which no fee is payable, parks outside the controlled parking hours for the area, or is covered by a disability exemption. Subsection 39(8) provides that this section does not apply to the rider of a motorcycle.

Section 40 Stopping or parking in restricted access area

Subsection 40(1) provides that a driver commits an offence if the driver stops or parks in a restricted access area, unless the driver satisfies the conditions mentioned in section 40 for stopping or parking that apply to the restricted access area. The penalty for the offence is 5 penalty units. The offence is strict liability. Subsection 40(2) provides a definition of 'restricted access area'.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Section 41 Restricted access areas and conditions for stopping or parking in them

Section 41 contains a table that sets out the kinds of restricted access areas on Trust land and the conditions for stopping or parking in those areas. This includes loading zones, drop off/pick up zones, reserved parking zones, authorised access zones, parking areas for persons with disability, parking areas for long vehicles and motorcycle parking areas.

Section 42 Parking within parking spaces

Subsection 42(1) provides that a driver commits an offence if the driver does not park their vehicle within the road markings which indicate the relevant parking space and in accordance with information on a parking control sign that applies to the parking space. Subsection 42(2) further provides that an identical offence applies to a trailer if a driver of a vehicle detaches their trailer.

The penalty for the offences is 5 penalty units. The offences are strict liability. The effect of strict liability applying to these offences is that the Harbour Trust only need to prove the physical element that the circumstances outlined in these offences exist. Strict liability is appropriate because the offences are minor in nature, the elements of the offences are simple and readily understood, the offences are only subject to a maximum penalty of 5 penalty units, and section 13 provides appropriate defences which the defendant could rely upon.

Subsection 42(3) provides two worked examples of parking within parking spaces that would constitute an offence.

Division 2.6 - Liability for offences involving a vehicle or vessel

Section 43 Offences involving a vehicle or vessel--liability of owner

Subsection 43(1) provides that the owner of a vehicle or a vessel, at the time when an offence relating to the vehicle or vessel is committed, is taken to have committed the offence. Subsection 43(8) inserts a definition of 'owner'. For a motor vehicle or vessel that is registered under a law of a State or Territory, an owner is the registered owner of the vehicle or vessel. For any other vehicle or vessel, the owner is the person who is legally entitled to the possession of the vehicle or vessel.

However, subsection 43(2) provides that the owner of the vehicle or vessel, whether an individual or a body corporate, is not taken to have committed the relevant offence if the vehicle or vessel was stolen or illegally taken or used, or if the owner completes a 'known user declaration'. A known user declaration is a statutory declaration made by the owner and given to a Trust officer, within 14 days after service of an infringement notice or a summons for an offence, that states: the subsection under which it is made; that the owner was not in charge of the vehicle or vessel at the time of the alleged offence; and provides the name and address of the person who was in charge of the vehicle or vessel at the time.

If an infringement notice or a summons for an offence has been served on the owner of a vehicle or vessel, subsection 43(3) similarly provides that the owner of the vehicle or vessel, whether an individual or a body corporate, is not taken to have committed the relevant offence if the owner completed an 'unknown user declaration'. An unknown user declaration is a statutory declaration made by the owner and given to a Trust officer, within 14 days after service of an infringement notice or a summons for an offence, that states: the subsection under which it is made; that the owner of the vehicle or vessel was not in charge of the vehicle or vessel at the time of the offence; and the owner has not been able to find out who was in charge of the vehicle or vessel at that that time, and the owner states the nature of the inquiries made to find out the name and address of the person who was in charge of the vehicle or vessel at the time.

Subsections 43(2) and (3) ensure that owners are not unduly penalised for offences that may be outside of their control.

Subsection 43(4) provides that if there is a hearing of a prosecution for a relevant offence against the owner of a vehicle or vessel, and an unknown user declaration has been given to a Trust officer, the court must dismiss the charge if it is satisfied that the owner was not in charge of the vehicle or vessel at the time of the offence, and that the inquiries made by the owner to find out the name and address of the person who was in charge of the vehicle or vessel were reasonable in the circumstances, and carried out with due diligence.

Subsections 43(5) and (6) provide that a certificate signed by a Trust officer stating a person named has not, in relation to that offence, given a Trust officer a statutory declaration under section 43, may be taken as prima facie evidence of the matters stated in the certificate. A certificate that appears to have been signed by a Trust officer is taken to have been signed unless the contrary is proved.

Subsection 43(7) clarifies that this section does not affect the liability of a person who actually committed the relevant offence with a vehicle or vessel, if they were not the owner of the vehicle or vessel. However, if a penalty has been imposed or recovered from any person for a relevant offence, then no further penalty can be imposed or recovered from anyone else for the same offence.

Section 44 Copy of statutory declaration to be served

Section 44 provides guidance for service of the copy of a statutory declaration given under paragraphs 43(2)(b) or (c) to be served on the person who was in charge of the vehicle or vessel at the time of an alleged offence involving the vehicle or vessel. Subsection 44(2) provides that a copy of the statutory declaration must:

* be attached to the infringement notice, if the infringement notice is served on the person after the statutory declaration has been given;

* be attached to the summons for the offence, if the person is to be prosecuted for the offence; or

* be served on the person at least 3 days before the commencement of the hearing for the offence, if the summons had been served on the person before that statutory declaration had been given.

Subsection 44(3) provides that a statutory declaration given under paragraphs 43(2)(b) or (c) is admissible in evidence in a prosecution for an offence against the relevant person and is prima facie evidence that the person was in charge of the vehicle or vessel at that time.

Part 3: Enforcement

Division 3.1 - Simplified outline of this Part

Section 45 Simplified outline of this Part

Section 45 provides a simplified outline of the Part, outlining that this Part provides for the appointment of rangers, and a ranger’s functions and powers. The simplified outline is included to assist the reader to understand the substantive provisions of the Regulations. It is not intended to be comprehensive. The reader should rely upon the substantive provisions.

Division 3.2 - Rangers

Section 46 Appointment of rangers

Subsection 46(1) permits the Harbour Trust to appoint rangers, in writing, and sets out requirements for appointment of rangers. A ranger must be an employee of the Harbour Trust, covered by an arrangement under subsection 48(3) of the Act or section 47 of the Regulations, or hold a licence under the Security Industry Act 1997 (NSW).

Subsection 46(2) provides that a ranger must be allocated a ranger identification number by the Harbour Trust.

Section 47 Arrangements for exercise of powers etc. of rangers

Section 47 provides that the Harbour Trust may make or enter into arrangements for the performance or exercise of the functions or powers of rangers by employees or officers of Commonwealth Departments or authorities, New South Wales Departments, authorities or councils, and by members of the New South Wales police force.

Section 48 Identity cards

Subsection 48(1) provides that the Harbour Trust must issue an identity card to each ranger (except a member of a police force). Subsection 48(2) prescribes the form of the identity card.

Subsection 48(3) provides that a person commits an offence if a person ceases to be a ranger and does not return their identity card to the Harbour Trust within 14 days. The penalty for the offence is 2 penalty units. The offence is strict liability.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 2 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 48 provides an appropriate offence-specific defence at subsection 48(5) which the defendant could rely upon.

Subsection 48(5) creates an exemption to the offence if the identity card was lost or destroyed. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exception is peculiarly in the knowledge of the defendant, as only the ranger in question would be aware, and be able to provide details, that the identity card in their possession had been lost or destroyed. Subsection 48(6) provides that a ranger is required to carry their identity card at all times when performing their functions or powers, unless the ranger was also a member of a police force.

Division 3.3 - Powers of rangers

Section 49 Request to state name and address

Section 49 permits a ranger to request a person's full name and residential address if the ranger believes on reasonable grounds that the person has committed or is committing an offence against the Regulations.

Section 50 Removal of certain persons from Trust land

Section 50 permits a ranger to request the removal of persons from Trust land if the ranger believes on reasonable grounds that the person has committed or is committing an offence under the Regulations. The penalty for failing to comply with a request is 5 penalty units. The offence is strict liability.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 50 provides an appropriate offence-specific defence at subsection 50(3) which the defendant could rely upon.

An exemption is provided at subsection 50(3) if the ranger, at the time of making the request, failed to produce their identity card and warn that failure to comply is an offence. A defendant bears an evidential burden if relying on this exception as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant, as the defendant may be the only other person besides the ranger as a witness to such a request from a ranger, and thus be the only person capable of demonstrating that a ranger did not properly identify themselves and warn that failure to comply with a request to leave would be an offence.

Subsection 50(5) permits a ranger to remove a person from Trust land if the person fails to comply with a request. Subsection 50(6) provides that, in effecting a person's removal, the ranger must use no more force than is reasonably necessary.

Section 51 Removal of certain animals from Trust land

Section 51 provides that a ranger may remove, or cause to be removed, domestic animals that are unattended or at large from Trust land.

Section 52 Removal of obstructions etc. from Trust land

Subsection 52(1) provides that a ranger may order the removal from Trust land of any thing that is obstructing or encroaching on Trust land. Subsection 52(2) provides that the order may be given to either or both the person who caused the obstruction or encroachment, or the person using the thing causing the obstruction or encroachment.

Subsection 52(3) provides that if a ranger gives such an order, then the ranger must inform the person that if he or she does not comply with the order, then he or she is committing an offence under subsection 52(4). The penalty for failing to comply with an order is 5 penalty units. The offence is strict liability.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence existed. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and the offence provides appropriate offence-specific defences at subsection 52(5) and (6) which the defendant could rely upon.

Subsection 52(5) creates an exemption to the offence if the defendant complies with the order to the extent they are capable. Subsection 52(6) creates an exemption to the offence if the presence of the obstruction or encroachment is authorised by the Harbour Trust, the Act or any other law. A defendant bears an evidential burden if relying on these exceptions as a defence. This is because a defence based on these exceptions is peculiarly in the knowledge of the defendant. The exemption under subsection 52(5) is a subjective representation of how that person assesses their own behaviour as complying with the order to the extent that they were capable. For the exemption under subsection 52(6), the person could provide a copy or original of any documentation that provides an authorisation by the Harbour Trust or other law that allowed them to create an obstruction or encroachment. For example, a construction company could provide its work order issued by the Harbour Trust.

Section 53 Ranger may remove obstructions etc. if order not complied with

Subsection 53(1) provides that a ranger may, with whatever assistance is reasonably necessary, remove an obstruction or encroachment from Trust land if an order to remove the obstruction or encroachment is given to a person under section 52 and the person fails to comply with the order. Subsection 53(2) provides that the person who fails to comply with the order is liable to pay, by way of penalty, to the Harbour Trust, on behalf of the Commonwealth, an amount equal to the reasonable costs incurred by the Harbour Trust in rectifying the contravention.

Subsection 53(3) provides that this amount may be recovered as a debt by the Harbour Trust, on behalf of the Commonwealth, in the Federal Court, the Federal Circuit and Family Court, or a court of a State or Territory that has jurisdiction in relation to the matter.

Subsection 53(4) provides that neither the ranger nor the Harbour Trust are liable for any loss or damage as a result of a ranger, a person assisting the ranger or the Harbour Trust removing the obstruction or encroachment with reasonable care.

Subsection 53(5) provides that the functions or powers of the Harbour Trust under section 53 may be exercised whether or not the person is being prosecuted for the offence of failure to comply with an order to remove a thing issued under section 52.

Section 54 Direction to move vehicle

Subsection 54(1) provides that a ranger may direct a driver of a vehicle to move the vehicle if the ranger reasonably believes that the vehicle is being or has been used, or is parked, on Trust land in contravention of the Regulations.

Subsection 54(2) provides that if a ranger gives such a direction, then the ranger must inform the person that if he or she does not comply with the direction, then he or she is committing an offence under subsection 54(3). The penalty for failing to comply with a direction is 5 penalty units. The offence is strict liability.

Subsection 54(4) provides that an offence is not committed unless the ranger, at the time of giving the direction, produces his or her ranger's identity card, or identification as a police officer, and warns that failure to comply with the direction is an offence.

The effect of strict liability applying to this offence is that the Harbour Trust only need to prove the physical element that the circumstances outlined in this offence exist. Strict liability is appropriate because the offence is minor in nature, the elements of the offence are simple and readily understood, the offence is only subject to a maximum penalty of 5 penalty units, section 13 provides appropriate defences which the defendant could rely upon, and section 54 provides an appropriate offence-specific defence at subsection 54(5) which the defendant could rely upon.

Subsection 54(5) creates an exemption to the offence, if the defendant complies with the order to the extent they are capable. A defendant bears an evidential burden if relying on this exemption as a defence. This is because a defence based on this exemption is peculiarly in the knowledge of the defendant, as it is a subjective representation of how that person assesses his or her own behaviour as complying with the direction to the extent that the person was capable.

Section 55 Ranger may remove vehicle if direction not complied with

Subsection 55(1) provides that a ranger may move a vehicle, with whatever assistance is reasonably necessary, to a place on Trust land or some other place, if a direction to move the vehicle is given to a person under section 54 and not complied with. Subsection 55(2) provides that the person who fails to comply with the direction is liable to pay, by way of penalty, to the Harbour Trust, on behalf of the Commonwealth, an amount equal to the reasonable costs incurred by the Harbour Trust in rectifying the contravention.

Subsection 55(3) provides that this amount may be recovered as a debt by the Harbour Trust, on behalf of the Commonwealth, in the Federal Court, the Federal Circuit and Family Court, or a court of a State or Territory that has jurisdiction in relation to the matter.

Subsection 55(4) provides that neither the ranger, any person who assists the ranger or the Harbour Trust is liable for any loss of, or damage to, the vehicle while it was being moved with reasonable care. Subsection 55(5) provides that the functions or powers of the Harbour Trust under section 55 may be exercised whether or not the person is being prosecuted for the offence of failure to comply with a direction to remove a vehicle issued under section 54.

Section 56 Removal of certain vehicles and abandoned property from Trust land

Subsection 56(1) provides that a ranger, with whatever assistance is reasonably necessary, may move objects on Trust land, being vehicles, addressed under section 54, and any other property on Trust land that a ranger believes on reasonable grounds to have been abandoned, to a place on Trust land or some other place.

Subsections 56(2) and (3) provide that the ranger must take reasonable steps to identify and inform the owner of the object of the removal, which may include the publication of an advertisement in a newspaper circulating in an appropriate place if the owner cannot be identified. Subsection 56(4) defines 'appropriate place' as, for motor vehicles, the State or Territory that the motor vehicle is registered in, or New South Wales in any other case.

Subsection 56(5) provides that the Harbour Trust must release the object to its owner on payment of the reasonable costs of removal and storage of the object. Subsection 56(6) provides that neither the ranger, any person who assists the ranger, or the Harbour Trust is liable for any loss or damage as a result of moving or storing the object.

Section 57 Disposal of certain vehicles and abandoned property

Subsection 57(1) provides that the ranger may dispose of objects that are moved on or removed from Trust land under section 56, after the expiry of the claim period for the object.

Subsection 57(2) defines 'claim period' as being one month after the relevant event, being:

the day on which the owner is informed of the moving or removal of the object; or
the later of, if the owner cannot be contacted - the day on which the object is moved or removed, or if the owner cannot be identified - the day on which an advertisement under subsection 56(3) is published.

Subsection 57(2) further defines 'dispose of an object' as meaning destroying or getting rid of the object.

Part 4 - Miscellaneous

Section 58 Simplified outline of this Part

Section 58 provides a simplified outline of the Part, outlining that this Part deals with the charging of fees by the Harbour Trust and the delegation of the Harbour Trust's functions and powers. The simplified outline is included to assist the reader to understand the substantive provisions of the Regulations. It is not intended to be comprehensive. The reader should rely upon the substantive provisions.

Section 59 Fees

Subsection 59(1) provides that, for the purposes of paragraphs 73(2)(f) and (n) of the Act, the Harbour Trust may charge the fees set out in column 2 of an item at the table in subsection 59(3) of these Regulations in respect of the service, facility, licence, permission, permit or authority set out in column 1 of the item of that table.

Subsection 59(2) provides that the amount of any fee may be recovered as a debt by the Harbour Trust, on behalf of the Commonwealth, in the Federal Court, the Federal Circuit and Family Court, or a court of a State or Territory that has jurisdiction in relation to the matter.

Subsection 59(3) provides a table that sets out the fees for the purposes of subsection 59(1). Items 1-7 provide fees for applications for planning permits for building activities etc. on Trust land, that are otherwise prohibited by section 14 of these Regulations. These fees provide a base fee to be paid based on the estimated cost of the planned works or activities, with a pro-rated amount added to the fee based on the further estimated cost of the planned works or activities.

These fees replicate the fees for development applications in New South Wales, provided by section 246B of the Environmental Planning and Assessment Regulation 2000 (NSW). The costs of this regulatory charging activity have been assessed against the Australian Government Charging Framework in the Harbour Trust's 2019-20 Cost Recovery Implementation Statement.

Items 8-13 of this table provide fees for permits for the sale and supply of liquor on Trust land, that is otherwise prohibited by section 28 of these Regulations. The costs of this regulatory charging activity have been assessed against the Australian Government Charging Framework in the Harbour Trust's 2019-20 Cost Recovery Implementation Statement. These permits can be issued for 1 year for premises on Trust land, with fee rates for premises to serve 1 to 74 patrons per day, and premises to serve 75 or more patrons per day. Permits can also be issued for special events, with different fee rates based on the number of patrons as above, and the length of an event, being 1 to 4 days or events lasting 5 or more days.

Section 60 Delegation

Subsection 60(1) provides that the Harbour Trust may delegate any or all of its functions and powers conferred on the Harbour Trust by these Regulations, to the Executive Director, an SES employee or acting SES employee of the Department, or a person employed under section 48 of the Act who holds, or is acting in, an Executive Level 2 position or higher. Subsection 60(2) provides that the Executive Director has to report to the Harbour Trust at least once every six months on the exercise of delegated functions and powers.

The functions and powers of the Harbour Trust that are delegated under section 60 are routine and administrative in nature. The Harbour Trust's instrument of delegation only delegates the granting of licences or permits, where the value of the activity does not exceed $100,000, to persons holding, or acting in, an Executive Level 2 position or higher. All other functions and powers under the Regulations are only delegated to the Executive Director, who is an SES employee.

A person who holds, or is acting in, an Executive Level 2 position or higher has the appropriate level of experience and knowledge of Harbour Trust operations to be able to effectively perform these delegated powers and functions, in making low-value decisions permitting otherwise prohibited activities through the granting of licences and permits. This could include activities such as a wedding or a small commercial event.

Part 5 - Application and transitional provisions

Section 61 Licences and permits

Subsection 61(1) provides that a licence or permit granted under section 25 of the 2001 Regulations, that was in force immediately before the commencement of these Regulations, continues in force, as if the licence or permit was granted under Division 2.2 of these Regulations.

Subsection 61(2) provides that an application for a licence or permit under section 25 of the 2001 Regulations, made before the commencement of these Regulations, is taken to be an application for a licence or permit made under section 9 of these Regulations, if a decision on the application has not been made at the time of commencement.

Section 62 Closure of places on Trust land

Section 62 provides that a decision of the Harbour Trust to close a place on Trust land under section 20 of the 2001 Regulations, that was in force immediately before the commencement of these Regulations, remains in force after commencement, as if it were a decision to close the place under section 30 of these Regulations.

Section 63 Appointment of rangers

Section 63 provides that an appointment of a ranger made under section 27 of the 2001 Regulations, that was in force immediately before the commencement of these Regulations, remains in force after commencement, as if the appointment were made under section 46 of these Regulations.

Section 64 Delegations

Section 64 provides that a delegation of the Harbour Trust made under section 42 of the 2001 Regulations, that was in force immediately before the commencement of these Regulations, remains in force after commencement, as if it were a delegation made under section 60 of these Regulations.

Section 65 Other things done under the Sydney Harbour Federation Trust Regulations 2001

Subsection 65(1) provides that, if a thing was done for a particular purpose under the 2001 Regulations, and the thing could be done for that particular purpose under these Regulations, then the thing has effect for the purposes of these Regulations as if it had been done for that particular purpose under these Regulations. Subsection 65(2) provides that, without limiting subsection 65(1), that a thing could include a reference to a notice, approval or other instrument being given or made.

Section 66 Conduct, event, circumstances occurring before commencement

Subsection 66(1) provides that, to avoid doubt, a function or duty may be performed, or a power exercised, under these Regulations in relation to conduct engaged in, an event that occurred, or a circumstance that arose, before these Regulations commenced. An example would include the Harbour Trust being able to revoke a licence or permit as a result of a force majeure or other event that occurred before commencement of these Regulations, or a ranger ordering the removal, under section 52, of an obstruction or encroachment that occurred on Trust land before commencement of these Regulations.

Subsection 66(2) provides that this section does not limit the operation of section 65 of these Regulations, or section 7 of the Acts Interpretation Act 1901, which governs the effect or repeal of amendments of Acts and legislative instruments.

Schedule 1 - Repeals

Item 1 The whole of the instrument

This item repeals the whole of the 2001 Regulations, as the Regulations have replaced the 2001 Regulations.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Sydney Harbour Federation Trust Regulations 2021

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulations

The Sydney Harbour Federation Trust (the Harbour Trust) was established in 2001 as a transitional body by the Sydney Harbour Federation Trust Act 2001 (the Act). The Harbour Trust was established to remediate and manage prominent former Defence sites in the Sydney Harbour region for the benefit of present and future generations of Australians, with an eventual transfer of suitable land to New South Wales.

The Sydney Harbour Federation Trust Regulations 2001 (the 2001 Regulations) will sunset on 1 October 2021. This instrument seeks to remake the 2001 Regulations as the Sydney Harbour Federation Trust Regulations 2021.

Purpose

In light of amendments to the Act that establish the Harbour Trust with ongoing responsibility for the planning and management of Trust Land, the 2001 Regulations must be replaced. This instrument proposes to replace the 2001 Regulations. Additionally, the Harbour Trust requires modest amendments to the 2001 Regulations to ensure it is empowered to regulate activities on its land effectively, and to update the 2001 Regulations in line with modern drafting practice.

Part 2 of this instrument allows the Harbour Trust to grant licences or permits to authorise activities on Trust land. Activities that, in the absence of a licence, permit or defence under Part 2 of this instrument, are prohibited on Trust land include the following:

(f) certain building and commercial activities on Trust land;

(g) the sale and supply of liquor on Trust land;

(h) the destruction of, damage to or removal of things from Trust land;

(i) bringing certain animals, plants or poisonous substances onto Trust land; and

(j) other activities on Trust land, provided in full at Part 2 of this instrument.

Part 2 also deals with the use and parking of vehicles on Trust land. Part 3 deals with the appointment, and functions and powers, of rangers. Part 4 deals with miscellaneous matters such as the charging of fees by the Harbour Trust, and delegation of powers by the Harbour Trust.

Human rights implications

The Bill engages, or has the potential to engage, the following rights:

Article 14(2) of the International Covenant on Civil and Political Rights (the ICCPR) - the right to the presumption of innocence
Article 21 of the ICCPR - the right of peaceful assembly
Article 19 of the ICCPR - the right to freedom of expression.

Right to the presumption of innocence

Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty accordingly to law. The right to presumption of innocence is also a fundamental common law principle.

Reverse burden provisions

Laws which shift the burden of proof to a defendant, commonly known as 'reverse burden provisions', can be considered a limitation of the presumption of innocence. This is because a defendant's failure to discharge a burden of proof or prove an absence of fault may permit their conviction despite reasonable doubt as to their guilt. This includes where an evidential burden of proof is placed on a defendant. Words of exemption will place an evidential burden of proof on the defendant.

When a defendant bears an evidential burden in relation to an exemption it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exemption has been met. The prosecution must establish that the exemption does not apply. This can be justified in circumstances where the facts in question are peculiarly within the knowledge of the defendant.

Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for the reverse burden.

The Commonwealth Guide notes that placing the burden of proof on the defendant should be limited to where the matter is peculiarly within the knowledge of the defendant and where it is more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Commonwealth Guide also notes that a reverse burden provision is more readily justified if the penalties are at the lower end of the scale. All offences under this instrument are strict liability offences under an infringement notice scheme, with the maximum penalty being 10 penalty units.

This instrument may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of offence-specific defences. These defences are outlined in this instrument's Explanatory Statement in detail. As the defences are offence-specific defences, they are unique to the respective offence provision. For example, section 15 provides a defence to the offence of persons displaying advertisements, if the person in question is wearing the advertisement on their clothing or personal items, or are displaying the advertisement on their vehicle for decorative purposes. Offences with offence-specific defences that impose an evidential burden on the defendant are listed below:

* section 15 (Commercial activities etc.)

* section 17 (Possession of firearms)

* section 20 (Dumping of waste, littering etc.)

* section 21 (Use of poisonous substances)

* section 22 (Animals on Trust land)

* section 23 (Protection of animals on Trust land)

* section 24 (Plants on Trust land)

* section 38 (Parking for longer than indicated)

* section 39 (Parking in ticket parking areas)

* section 48 (Identity cards)

* section 50 (Removal of certain persons from Trust land)

* section 52 (Removal of obstructions etc. from Trust land)

* section 54 (Direction to remove vehicle)

Further, section 13 (Activities that are not offences under Division 2.4 or Division 2.5), offers a general defence to offences under Divisions 2.4 or 2.5. Defences under this section generally relate to a person demonstrating that they were authorised to undertake the prohibited activity in question by the Harbour Trust, the Act, the regulations or another Australian law. Further detail on how each exception to the offence provisions is provided in this instrument's Explanatory Statement.

It is necessary that the defendant bears the evidential burden in these provisions in order to achieve the legitimate objective of allowing the Harbour Trust to appropriately regulate people's behaviour on Trust land, with rangers enforcing offences with low penalties as part of an infringement notice scheme. The reversal of the evidential burden for these offence provisions is reasonable and proportionate to the legitimate objective. For the offence-specific defences listed above, the defendant would peculiarly have the information or knowledge that is evidence of the exemption. The defendant would also peculiarly have the information or knowledge of any defence available under section 13, generally that they were authorised by law to undertake the conduct, for example by demonstrating a contract or a written authorisation that justifies their activities.

Strict liability

Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault. However, the defence of mistake of fact is still available to the defendant and the existence of strict liability does not make any other defence unavailable.

Strict liability is proposed for the offences contained within this instrument. The offences have a maximum penalty of 10 penalty units.

Application of strict liability to these offences has been set with consideration given to the circumstances in which strict liability is appropriate, as set out in the Commonwealth Guide: the penalties for the strict liability offences in this instrument do not include imprisonment, and do not exceed 60 penalty units for an individual. An infringement notice may be issued for a contravention of these offences, under section 65F of the Act. Section 65F establishes that strict liability offences against the regulations are subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, which creates a framework under which infringement notices may be issued.

Application of strict liability for offences under this instrument is necessary to ensure the integrity of the Harbour Trust's regulatory regime, given the offences have relatively low penalties, meaning prosecution would be an ineffective method of enforcing these provisions.

Right of peaceful assembly

Article 21 of the ICCPR provides that the right of peaceful assembly shall be recognised, and that no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law, and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

In its report 1 of 2020, the Parliamentary Joint Committee on Human Rights (the Committee) considered section 11 of the 2001 Regulations, which provided a strict liability offence for organising or participating in a public assembly on Trust land unless a person held a permit granted by the Harbour Trust. The Committee concluded that this provision limited the right to freedom of expression and assembly. The Committee reiterated these concerns in its report 4 of 2021, when considering the Sydney Harbour Federation Trust Amendment Bill 2021. The Minister's response was published in the Committee's report 5 of 2021, advising that the 2001 Regulations were due to sunset on 1 October 2021, and that the intention was to redraft section 11 to ensure it was consistent was Australia's international human rights obligations.

In response to these concerns, section 19 of this instrument establishes a notification system for public assemblies rather than a permit system. This means that public assemblies on Trust land are lawful without the need for the Harbour Trust to approve them. There is only a requirement that a person who intends to hold a public assembly on Trust land notify the Harbour Trust. The notification system is not unduly burdensome, as no fee is required at any point, and failure to notify the Harbour Trust of an upcoming assembly does not create an offence.

The Harbour Trust retain a limited power to prohibit a public assembly when notified under subsection 19(2), but the power is in line with the restrictions provided by Article 21, with a prohibition being allowed only to address public safety concerns, if the assembly is likely to result in violence, endanger the safety or security of individuals, severely damage Trust land or property, or interfere with the rights of other persons. These limitations on the right to assembly are in line with the permissible limits provided by Article 21 of the ICCPR, as noted at paragraph 2.85 in the Committee's report 5 of 2021 when assessing section 11.

Prohibition is also permitted if the public assembly is a purely commercial activity, such as a music festival. Procedural fairness is protected, as the Harbour Trust is required to provide written notice to a person, with reasons, if it decides to prohibit a public assembly. This decision may also be appealed to the Administrative Appeals Tribunal for merits review.

Right to freedom of expression

Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This would encompass attendance at an event such as a political rally or protest, which would constitute a public assembly as defined by section 19 of this instrument, if held on Trust land.

Article 19(3) of the ICCPR provides that this right may be subject to certain restrictions however, if they are provided by law and are necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or of public health or morals. As established above, the Harbour Trust retain a limited power under subsection 19(2) of this instrument to prohibit a public assembly. The grounds on which the Harbour Trust may prohibit a public assembly are provided by law and are compatible with Article 19(3), in that they relate to public order and respect for the personal rights of others, like protecting personal property rights, the right to enjoy Trust land, and protecting persons from physical violence.

Conclusion

This instrument is compatible with human rights. This instrument engages, or has the potential to engage, the right to the presumption of innocence, the right of peaceful assembly, and the right to freedom of expression, and where the instrument limits rights, it does so in a manner compatible with the legitimate restrictions provided by the ICCPR.

The use of strict liability and the reversal of burden of proof for the offence provisions in the instrument are reasonable, necessary and proportionate responses which reflect the nature of the regulatory regime of the Harbour Trust, namely that prosecution would be an ineffective method of enforcing these offence provisions, and that the offence provisions have low penalties. Accordingly, the instrument is consistent with the right to the presumption of innocence in Article 14(2) of the ICCPR.

The notification scheme for public assemblies, with the Harbour Trust retaining only limited grounds to prohibit a public assembly, engages and affirms Article 21 and 19(3) of the ICCPR, in providing that a public assembly should be seen as lawful by default, in providing the grounds to prohibit a public assembly by law in subsection 19(2) of this instrument, and aligning those grounds with the restrictions permitted by the ICCPR, namely in protecting public safety, order, and the rights and freedoms of other persons.

The measures in this instrument are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Hon. Sussan Ley MP

Minister for the Environment