Commons Management Act 1989

This Act may be cited as the Commons Management Act 1989.

This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).

Section 9 and clause 2 of Schedule 5 commence on the date of assent to this Act, but no by-law made under section 9 has effect before the commencement of section 4.

In this Act:

affairs includes activities.

alienate, in relation to land, includes sell or exchange land, but does not include mortgage, charge or encumber, or grant a lease or licence over, land.

common means:

a parcel of land which, on or before 1 February 1909, had, by any instrument made by the Governor, been set aside as a common for the use of the inhabitants of any specified locality or the cultivators or farmers of any locality in which the parcel of land is situated, or

any parcel of land which, after that date, has been set aside by the Governor or the Minister, by notice published in the Gazette, as a common or for pasturage for the use of the inhabitants of a specified locality,

but does not include such a parcel where the setting aside of the common has been revoked or otherwise terminated.

commoner, in relation to a common, means a person whose name is entered on the commoners’ roll kept in respect of the common.

commoners’ roll, in relation to a common, means the roll kept in respect of the common in accordance with section 10.

Crown Land Acts has the same meaning as in the Crown Land Management Act 2016.

Eastern and Central Division means that part of the State that is the Eastern and Central Division within the meaning of the Crown Land Management Act 2016.

financial year, in relation to a trust, means the financial year of the trust as fixed by or in accordance with section 40.

former Act means the Commons Regulation Act 1898.

land district—see section 3A.

local authority means a council within the meaning of the Local Government Act 1993.

local government area has the same meaning as area has in the Local Government Act 1993.

management plan means a draft management plan adopted in accordance with section 27.

office bearers, in relation to a trust board, means the president, secretary and treasurer of the board.

record includes a commoners’ roll, book, account, deed, writing, document and any other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means.

Secretary means the Secretary of the Department of Industry, Skills and Regional Development.

set aside includes allotted, granted, notified, set apart, devoted, reserved, appropriated and dedicated.

temporary licence means a licence granted under section 22.

this Act includes the regulations.

transaction, in relation to land, means any transaction which creates, transfers, charges, encumbers, varies or extinguishes an estate or interest in land, and includes a transfer, a conveyance, a lease, a mortgage, a covenant and a grant of a licence, and also includes a grant or reservation of an easement or other incorporeal hereditament.

trust means a trust established in respect of a common under section 4 (1) or by section 4 (3).

trust board, in relation to a trust, means the trust board elected or taken to be elected under this Act to manage the affairs of the trust.

Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016.

In this Act:

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

In this Act, a reference to the commoners in relation to a trust, a trust board or a local authority that is, or an administrator who is, managing the affairs of a trust is a reference to the commoners whose names appear on the roll of commoners kept in respect of the common for which the trust is established.

(Repealed)

In this Act, a reference to the premises of a trust includes a reference to the trust’s principal place of administration, whether that place is vested in or occupied by the trust or not.

Notes included in this Act do not form part of this Act.

In this Act, land district means (subject to subsection (2)):

in relation to land in the Eastern and Central Division—a land district established under section 8 of the Crown Lands Act 1989 in existence immediately before the repeal of that Act, and

in relation to land in the Western Division—an administrative district established under section 9 of the Western Lands Act 1901 in existence immediately before the repeal of that Act.

The Minister may, by order published in the Gazette, specify land districts for the purposes of this Act.

Without limiting subsection (2), the order may alter or abolish existing land districts (including those referred to in subsection (1)) or specify new land districts.

Whenever a parcel of land is set aside as a common after the commencement of this section, the Minister must, by notice published in the Gazette:

establish a trust in respect of the common, and

assign a corporate name to the trust.

A trust established under subsection (1) is constituted by this Act as a corporation with the corporate name assigned in the notice establishing the trust.

A body corporate constituted in respect of a common by section 4 of the former Act and in existence immediately before the commencement of this section continues in existence under this Act and is established as a trust in respect of the common for the purposes of this Act.

The Minister may, by notice published in the Gazette, alter the corporate name of a trust.

A trust established in respect of a common has the functions conferred or imposed on it by or under this or any other Act.

The affairs of a trust shall be managed:

by a trust board, or

by a local authority appointed under section 7, or

where an administrator is appointed under section 5 or 48—by the administrator.

Section 50 of the Interpretation Act 1987 applies to a trust, but subsection (1) (d) of that section is, in its application to a trust, subject to the provisions of Division 4.

When establishing a trust under section 4 (1), the Minister must, by notice published in the Gazette:

appoint an administrator to manage the affairs of the trust, pending the election of members of a trust board to manage those affairs, and

by notice published in the Gazette, fix the number of members, being not fewer than 3 nor more than 7, who are to constitute the board, and

fix a period within which the administrator must convene and hold a general meeting of commoners for the purpose of holding elections to elect the members and office bearers of the trust board.

As soon as practicable within the period fixed in accordance with subsection (1) (c), or within such extended period as the Minister allows, the administrator must:

establish a commoners’ roll for the trust and enter on the roll the names, addresses and other prescribed particulars (if any) of those persons who, having the prescribed qualification, apply to have their names entered on the roll, and

then convene a general meeting of commoners in accordance with subsection (3) for the purpose of holding the elections referred to in subsection (1) (c).

The administrator must, at least 14 days before the date fixed for the holding of a general meeting referred to in subsection (2) (b), send by pre-paid post to each commoner at the commoner’s address appearing on the commoners’ roll a notice:

specifying the place, date and time of the meeting, and

stating that elections to elect the members and office bearers of a trust board will be held at the meeting.

The accidental omission to give notice of a general meeting convened under subsection (2) (b) to, or the non-receipt of a notice of such a meeting by, any person does not invalidate proceedings at the meeting.

At a general meeting convened under subsection (2) (b), the person presiding must conduct:

a general election to elect the first members of the trust board from among the commoners eligible for election, and

an election to elect the office bearers of the board from among the members so elected.

If the office of an administrator appointed under this section becomes vacant before the holding of the elections referred to in subsection (5), the Minister must, by notice published in the Gazette, appoint another person to fill the vacancy.

If, at a general meeting convened under subsection (2) (b), the requisite number of members of the trust board are elected to constitute the board, then, at the conclusion of the meeting:

the appointment of the administrator ends, and

the persons elected at the meeting assume the offices to which they were elected.

Schedule 1 has effect with respect to an administrator appointed under this section.

A trust board is not properly constituted for the purposes of this Act unless:

except as provided by paragraph (b):

in the case of a trust established under section 4 (1)—it consists of the number of members fixed by the Minister when establishing the trust, or

in the case of a trust established by section 4 (3)—it consists of the number of members that it had when the trust was established, or

if the Minister has made a determination in accordance with subsection (3) varying the number of members of the board and that determination has taken effect—it consists of the number of members fixed by the determination.

If trustees of a common were holding office under section 6 of the former Act immediately before the commencement of this section, those trustees shall, for the purposes of this Act, be taken to have been elected as the members of the trust board that is responsible for managing the affairs of the trust established in respect of the common by section 4 (3).

The Minister may, by notice published in the Gazette, make a determination varying the number of members required to constitute a particular trust board by increasing it to a number not greater than 7 or reducing it to a number not less than 3.

A determination under subsection (3) does not take effect until:

the terms of office of the existing members of the trust board have expired, or

where the trust’s affairs are being managed by a local authority or an administrator, the term of office of the local authority or administrator has expired,

except for the purpose of electing the successors to those members or that local authority or administrator.

Unless for any reason the members of a trust board elected at a general election vacate their offices earlier, those members hold office until the end of the third annual general meeting of commoners after the general meeting of commoners at which they were elected.

A member of a trust board is eligible for re-election at the general meeting of commoners at the conclusion of which he or she would, if not re-elected, have ceased to hold office.

Nothing in this Act affects the operation of section 52 of the Interpretation Act 1987.

Schedule 2 has effect with respect to the members of a trust board.

Schedule 3 has effect with respect to the meetings of a trust board.

The Minister may, by notice published in the Gazette, appoint a local authority to manage the affairs of a trust:

instead of appointing an administrator as provided by section 5, or

whenever there is no trust board elected to manage those affairs.

A local authority may accept an appointment under subsection (1) whatever any other enactment or rule of law may provide, but may be appointed under that subsection only with its consent.

Except in the case of a common located in the Western Division, a local authority may be appointed to manage the affairs of a trust only if the common concerned is located within the local government area for which the local authority is constituted.

A local authority may be appointed under subsection (1) for a term, specified in the instrument of appointment, not exceeding 3 years.

If a local authority was holding office as trustees of a common under section 11 of the former Act immediately before the commencement of this section, that local authority shall, for the purposes of this Act, be taken to have been appointed to manage the affairs of the trust established in respect of the common for a term of 3 years from the commencement of this section.

With the consent of the local authority, the Minister may, from time to time by notice published in the Gazette, reappoint a local authority to manage the affairs of a trust for a term, specified in the instrument of reappointment, not exceeding 3 years.

A local authority which is managing the affairs of a trust may affix its own seal to a document that is required or permitted to be executed under seal by the trust concerned or may affix the trust’s seal.

A local authority which is managing the affairs of a trust may give to the Minister in writing a notice that, at the end of a period specified in the notice (being not less than 6 months), the authority intends to withdraw from the management of those affairs.

At the end of the period of notice given under subsection (8), the local authority ceases to manage the affairs of the trust concerned.

The Minister may, by notice published in the Gazette, terminate the appointment of a local authority under this section on any ground that the Minister considers appropriate.

If a local authority is appointed to manage the affairs of a trust, such of the provisions of the Local Government Act 1993 as are prescribed apply to the authority in its capacity as manager of the affairs of the trust, with such modifications as are prescribed.

When a local authority is managing the affairs of a trust, a decision relating to those affairs supported by a majority of the votes cast at a meeting of the authority at which a quorum is present is the decision of the trust.

If:

in accordance with subsection (8), a local authority has given notice that it intends to withdraw from the management of the affairs of a trust, or

the Minister proposes in accordance with subsection (10) to terminate the appointment of a local authority as manager of the affairs of a trust, or

a local authority has ceased to manage the affairs of a trust and no commoners have since been elected as members of the board,

the Minister may appoint an administrator to manage the affairs of the trust in accordance with section 5 as if the trust were being established under section 4 (1).

A trust:

is responsible for the care, control and management of the common for which the trust is established, and

subject to this Act, holds the common as trustee for the commoners on the trusts and for the uses declared in the instrument by which the common was dedicated, reserved or otherwise set aside.

A trust may invest any funds not immediately required for the exercise of its functions provided that it does so as authorised by the Trustee Act 1925.

A trust may employ such staff as it considers necessary to enable it to exercise its functions.

A trust may, in relation to the common for which it is established, make a by-law, not inconsistent with this Act, for or with respect to the following:

the care, control and management of the common,

the rights of the commoners with respect to the use of the common and, in particular, securing equitable access to the common for all commoners and their invitees,

giving effect to a management plan that has been adopted in relation to the common,

regulating the conduct of commoners and others when using the common,

regulating the bringing of animals onto the common, securing the removal from the common of domestic animals that are brought onto or enter the common without lawful authority and controlling the activities of animals that are authorised to be on that common,

protecting all fauna (other than feral animals) which use the common as their habitat or which are allowed to be taken or kept there by commoners,

protecting trees, shrubs and other vegetation (other than weeds) which are growing on the common and preventing such trees, shrubs and vegetation from being damaged or destroyed,

controlling or eradicating feral animals that use the common as their habitat,

controlling weeds that grow on the common,

protecting facilities on the common that are provided for the use of commoners,

prohibiting or regulating the removal from the common of dead timber, logs and tree stumps, whether they are still in the ground or not,

prohibiting or regulating the removal from the common of sand, soil, rocks or any other mineral matter,

prescribing annual fees to be paid by commoners,

imposing charges to be paid by or in respect of commoners or other persons or groups of persons as a condition of their being allowed to use the common, a part of the common or specified facilities located on the common for a specified purpose,

prohibiting or regulating the use and parking of motor vehicles on the common and, where the use of motor vehicles on the common is permitted, prescribing charges for that use or for the parking of such vehicles on the common,

prohibiting or regulating the use of the common or any part of the common as a dwelling or camping place and, where that use is permitted, prescribing charges for that use,

prohibiting or regulating the erection of buildings and other structures on the common,

providing for the collection and disposal of the fees and charges (if any) prescribed under paragraph (m), (n), (o) or (p).

The trustees holding office in respect of a common when this Act is enacted may make a by-law in accordance with subsection (1) so as to have effect in respect of the common on and from the commencement of section 4.

A by-law made under subsection (1) or (2) is required to be approved by the Governor and does not have effect until it is so approved.

If no by-law has been made in accordance with subsection (2) in respect of a common in existence immediately before the commencement of section 4, then the trust established for the common by subsection (3) of that section shall be taken to have made the prescribed model by-law so as to have effect in respect of the common on and from that commencement.

For the purposes of subsection (4), the regulations may prescribe a model by-law that provides for all or any of the matters specified in subsection (1).

A trust may amend its by-law or may repeal its by-law and make another by-law in substitution of that by-law, but such an amendment or such a repeal and substitution is required to be approved by the Governor and does not have effect until it is so approved.

In subsection (6):

amend means:

omit a provision or matter, or

substitute a provision or matter for an existing provision or existing matter, or

insert or add a new provision or new matter.

Subsection (6) has effect irrespective of whether the trust’s by-law is, or includes any of the provisions of, the prescribed model by-law.

Any charge properly imposed by a trust under a by-law in force under this section that was not paid when it was due is recoverable in a court of competent jurisdiction as a debt due to the trust.

Where a by-law made or taken to be made under this section is in force in respect of a common, the trust board concerned must exhibit a copy of the by-law at one or more conspicuous places on the common.

A by-law may create an offence punishable by a maximum penalty not exceeding 5 penalty units.

If:

any person is convicted of an offence created under a by-law made or taken to be made under this section, and

the court imposes a penalty in respect of the offence,

the amount of the penalty is payable to the trust concerned.

A trust must keep a commoners’ roll for the common for which the trust is established.

Any person who has the qualification prescribed by the regulations for enrolment as a commoner is entitled to be enrolled on the commoners’ roll for which the person is qualified.

A trust must maintain, publish and otherwise deal with its commoners’ roll as provided by the regulations.

If:

a person has applied to be enrolled on the commoners’ roll kept by a trust, and

the trust has refused the application,

the trust must immediately notify the person in writing of the refusal and the reasons for it.

If a trust has notified a person in accordance with section 10 (4) of its refusal of the person’s application for enrolment, the person may, within the period of 28 days following the date on which the person receives written notice of the trust’s refusal of the application, appeal against the refusal to the Civil and Administrative Tribunal.

Note.

An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(Repealed)

The trust concerned is entitled to be heard at the hearing of an appeal under subsection (1).

On the hearing of an appeal under subsection (1), the Civil and Administrative Tribunal may:

confirm the decision of the trust concerned, or

if satisfied that the appellant is entitled to be enrolled as a commoner on the commoners’ roll kept by that trust, order that trust to enter the appellant’s name on that roll.

(Repealed)