Dog Fence Act 1946 (SA)

South Australia Dog Fence Act 1946 An Act to provide for the establishment and maintenance of dog-proof fences in the State in order to prevent the entry of wild dogs into pastoral areas, and for incidental purposes. Contents Part 1—Preliminary 1 Short title 4 Interpretation Part 2—Constitution of the board 5 Constitution of board 6 Members of board 7 Term of office 10 Method of filling vacancies 11 Casual vacancies 12 Dismissal of member 13 Notification of appointment 14 Meetings and quorum of board 15 Member presiding at meetings of the board 15A Conflict of interest under Public Sector (Honesty and Accountability) Act 16 Appointment of officers and employees 17 Members' remuneration Part 3—Provisions as to dog fences 18 Establishment of the primary dog fence 19 Establishment of secondary dog fences 20 Construction of fence to complete dog fences 21 Replacement of parts of dog fences 22 Duty of owner to maintain dog fence and destroy wild dogs 23 Powers and duties of board as to dog fences 23A Dog fences on Crown land 24 Payments to owners of dog fences 24A Provisions as to ownership of dog fences Part 4—Financial provisions 25 Imposition of rates on ratable land 26 Special rate in respect of local board areas 27 Payment and recovery of rates and special rates 27A Contribution by councils as alternative to rating by board 28 Charge to be payable by occupiers of land outside dog fence 31 Subsidy 32 Advance to board by Treasurer 32A Borrowing and investment powers of board 33 Dog Fence Fund 34 Annual report 35 Audit Part 4A—Local dog fence boards 35A Establishment of local dog fence boards 35AB Borrowing and investment powers of local board 35C Variation and abolition of local boards Part 5—Miscellaneous 36 Administrative arrangements 37 Inspection of dog fences by Government employees 39 Effect of notice 40 Service of notice 41 Recovery of amounts payable to board 41A Registration of charges on land 42 Penalty for failure to supply statement 43 Penalty for damaging or removing a dog fence 44 Employer liable for damage done by employee 44A Gate or ramp is part of a dog fence 45 Penalty for leaving gate open 46 Penalty for failing to apply amounts paid for maintenance of dog fence 47 Regulations Legislative history Appendix—Divisional penalties and expiation fees The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Dog Fence Act 1946. 4—Interpretation (1) In this Act, unless the context or subject matter otherwise requires— board means The Dog Fence Board constituted under this Act; Crown lands means Crown lands as defined in the Crown Lands Act 1929; dog fence means the primary dog fence, or a secondary dog fence, established under this Act; financial year means the period of 12 months ending on 30 June; inside a dog fence means— (a) in relation to the primary dog fence—land that is within the portion of the State bounded by the primary dog fence, the eastern border of the State and the coast of the State; or (b) in any other case—land within the State to which entry by wild dogs is further restricted by a secondary dog fence; land includes, according to the context, any interest or right under a lease or licence of Crown lands or an agreement to purchase Crown lands; local board means a local dog fence board established under Part 4A; member means a member of the board; occupier in relation to land means a person who has, or is entitled to, possession or control of the land and includes— (a) where the land is alienated from the Crown by grant in fee simple, the owner of the estate in fee simple; and (b) where the land is held of the Crown by lease or licence, the lessee or licensee; and (c) where the land is held of the Crown under an agreement to purchase, the person on whom the right of purchase is conferred by the agreement; outside a dog fence means— (a) in relation to the primary dog fence—land that is outside the portion of the State bounded by the primary dog fence, the eastern border of the State and the coast of the State; or (b) in any other case—land within the State outside of an area to which entry by wild dogs is further restricted by a secondary dog fence; owner in relation to land means— (a) where the land is alienated from the Crown by grant in fee simple, the owner of the estate in fee simple; (b) where the land is held of the Crown by lease or licence, the lessee or licensee; (c) where the land is held of the Crown under an agreement to purchase, the person on whom the right of purchase is conferred by the agreement; (d) in any other case, the Crown; primary dog fence see section 18(2); secondary dog fence means a dog fence other than the primary dog fence; wild dog means— (a) a dingo or a dog that is any cross of a dingo; or (b) a feral dog. (2) For the purposes of this Act, a fence is dog-proof if, in the opinion of the board, it is so constructed and maintained as to provide an effective barrier against the movement of wild dogs. Note— For definition of divisional penalties (and divisional expiation fees) see Appendix. Part 2—Constitution of the board 5—Constitution of board (1) The Dog Fence Board is established. (2) The board is a body corporate with perpetual succession and a common seal and, subject to this Act, has power in its corporate name to take, hold, and dispose of real and personal property of every kind and be a party to any legal proceedings. (3) A court or person acting judicially will take judicial notice of the seal of the board and when the seal appears on any document will presume that it was properly affixed. 6—Members of board (1) The board is to consist of five members appointed by the Minister of whom— (a) one will be a person nominated by the Minister; and (b) two (each of whom is an occupier of ratable land and at least one of whom is an occupier of ratable land adjoining the primary dog fence) will be nominated by Livestock SA Incorporated; and (c) one (who is an occupier of ratable land but not a Public Service employee) will be nominated by the Minister responsible for the administration of the Landscape South Australia Act 2019; and (d) one will be nominated by the Far West Dog Fence Boards Association Incorporated. (1a) The Minister will appoint from amongst the members of the board a person to chair the meetings of the board. (2) Where a nominating body referred to in subsection (1) fails to make a nomination within 60 days of being requested by the Minister to make the nomination, the Minister may nominate such person as the Minister thinks fit. (4) In this section— occupier of ratable land means— (a) an occupier of land that is ratable land under section 25; or (b) an occupier of land in relation to which a contribution has been declared under section 27A to be payable for the current financial year, and includes a shareholder of a company that is an occupier of land referred to in paragraph (a) or (b). 7—Term of office (1) Except as otherwise provided by this Act, a member will, subject to this Act, hold office for a term, not exceeding 4 years, specified in the instrument of appointment. (3) A retiring member will hold office until his or her successor is appointed. (4) A person ceasing to be a member by reason of the expiration of his or her term of office is eligible for re-appointment if otherwise eligible under this Act. 10—Method of filling vacancies On the office of a member of the board becoming vacant, a person must be appointed in accordance with this Act to the vacant office. 11—Casual vacancies (1) In addition to the retirement of a member by the expiration of his or her term of office, the office of a member is vacated on— (a) the death or bankruptcy of the member, or the execution by the member of a statutory deed of assignment for the benefit of his or her creditors, or his or her compounding with his or her creditors for less than 100 cents in the dollar, or the conviction of the member of any indictable offence; or (b) the absence of the member from three consecutive ordinary meetings of the board, without leave of the Minister; or (c) the absence of the member from the State for three consecutive months without leave of the Minister; or (d) the resignation of the member by notice in writing, posted or delivered to the Minister. (2) A body on the nomination of which a member has been appointed by the Minister may, by notice in writing given to the Minister, request that the appointment of that member be determined before the expiration of his or her term of office. If satisfied that the appointment should be determined, the Minister may determine the appointment of the member. 12—Dismissal of member The Minister may dismiss a member from his or her office— (a) if in the opinion of the Minister the member is, owing to mental or physical incapacity, incapable of discharging the duties of his or her office; or (b) if the member has been guilty of serious misconduct which, in the opinion of the Minister, makes it undesirable that he or she should remain a member of the board. 13—Notification of appointment The appointment of a member must be notified in the Gazette and will take effect as from the date specified in the notification. 14—Meetings and quorum of board (1) Meetings of the board will be held at such times and at such place as is from time to time determined by the board but a meeting of the board must be held not less than once in every three months. (2) A quorum of the board consists of three members. 15—Member presiding at meetings of the board (1) The member appointed to chair the board will preside at meetings of the board or, in the absence of that member, a member chosen by those present. (2) The member presiding at a meeting will have a casting vote as well as a deliberative vote. 15A—Conflict of interest under Public Sector (Honesty and Accountability) Act A member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter shared in common with those engaged in or associated with animal or plant control generally or primary industry generally, or a substantial section of those engaged in or associated with animal or plant control or primary industry. 16—Appointment of officers and employees (1) The board may appoint a secretary and such other employees as are necessary for the purposes of the board at such remuneration as the board from time to time fixes. (2) An employee of the board is not a Public Service employee. 17—Members' remuneration (1) Each member is to be paid from the funds of the board such remuneration as is from time to time fixed by the Minister. (2) Each member is to be paid from the funds of the board travelling or other expenses necessarily incurred by him or her on the business of the board at a rate from time to time fixed by the Minister. Part 3—Provisions as to dog fences 18—Establishment of the primary dog fence (1) For the purpose of preventing the entry of wild dogs into the pastoral and agricultural areas of the State, a dog-proof fence (the primary dog fence) is to be established and maintained in the northern areas of the State. (2) The Governor may, by proclamation made on the recommendation of the board, declare that the site of the primary dog fence is the site described in the proclamation. 19—Establishment of secondary dog fences (1) For the purpose of further restricting the movement of wild dogs within the pastoral and agricultural areas of the State, further dog-proof fences (secondary dog fences) may be established and maintained in the area inside the primary dog fence. (2) The Governor may, by proclamation made on the recommendation of the board, declare that the site of a secondary dog fence is the site described in the proclamation. (3) The Governor may, by subsequent proclamation made on the recommendation of the board, vary or revoke a proclamation made under this section. 20—Construction of fence to complete dog fences (1) If, in order to complete any portion of a dog fence, it is necessary to construct a new fence on any land or if in order to make dog-proof any part of a dog fence situated on any land, it is necessary that the fence be altered for that purpose, the board may, by notice in writing given to the occupier of the land, or, as the case may be, the owner of the fence require the occupier to construct the new fence or, as the case may be, the owner to alter the fence, within the time and in accordance with the directions specified in the notice. (2) The occupier or, as the case may be, the owner must comply with the requirements of the notice, and in default of such compliance, the board may erect the fence or, as the case may be, carry out the alterations, and may recover the cost of so doing from the occupier or, as the case may be, the owner as a debt due to the board by the occupier or owner. (3) The board must not issue a notice under subsection (1) except after consultation with the occupier of the land, or the owner of the fence, as the case may require. 21—Replacement of parts of dog fences (1) The board may carry out work, or approve the carrying out of work, for the construction of a dog-proof fence, or for the alteration of a fence to make it dog-proof, to replace an existing part of a dog fence. (2) The board may enter into an agreement for contributions to be made to the board, or by the board, towards the cost of work carried out under subsection (1). (3) Where— (a) the board carries out work to replace an existing part of a dog fence with another fence that would, as part of a dog fence, be under the same ownership; and (b) the fence to be replaced is in disrepair and, in the opinion of the board, in such a condition, or on such land, that it is not reasonably practicable to make it good as dog-proof fencing, the board may recover the cost of the work from the owner of the existing part of a dog fence as a debt due to the board by the owner. (4) On the recommendation of the board, the Governor may, by proclamation, declare a specified dog-proof fence to be part of the dog fence in place of an existing part of the dog fence specified in the proclamation. 22—Duty of owner to maintain dog fence and destroy wild dogs (1) The owner of any part of a dog fence— (a) must at all times keep it in a dog-proof condition and properly maintained as a dog-proof fence; and (b) must, for the purpose of keeping it in that condition and so maintained, cause it to be inspected at intervals of not more than 14 days; and (c) must take all reasonable steps to destroy all wild dogs in the vicinity of the part of a dog fence owned by the owner by shooting or trapping the dogs or by laying poisoned baits for them. (2) An owner of any part of a dog fence who fails to comply with subsection (1) is, in addition to any liability that may be incurred under section 23(2), guilty of an offence. Penalty: Division 8 fine. 23—Powers and duties of board as to dog fences (1) The board has the following powers and duties with respect to dog fences: (a) the board must ensure that all dog fences are properly maintained and are at all times dog-proof; (b) the board must ensure that dog fences are properly inspected; (c) the board must ensure that wild dogs are destroyed in the vicinity of a dog fence by the owners of the dog fence. (2) If the board is satisfied that an owner of any part of a dog fence has failed to maintain or inspect any part of the dog fence owned by him or her or to keep the fence dog‑proof or to destroy wild dogs in the vicinity of the fence, the board may carry out any necessary work for the purpose of maintaining or inspecting the fence or making it dog-proof or of destroying wild dogs in the vicinity of the fence, and may recover the cost of so doing from the owner as a debt due to the board by the owner. (3) For the purposes of this section, the board, or a person authorised by the board, may enter and remain on land on which a dog fence is situated. 23A—Dog fences on Crown land (1) The board may— (a) for the purpose of completing or replacing a portion of a dog fence, erect a fence on any Crown land; (b) make dog-proof any fence on Crown land; (c) maintain any such fence. (2) Without limitation of the powers conferred by this section, the board may, for the purpose of carrying out any work authorised by subsection (1), enter into any arrangement with the occupier of any land. 24—Payments to owners of dog fences (1) The board must, in each financial year, pay to each owner of part of a dog fence an amount (not exceeding $400 for each kilometre of fence owned by him or her) to enable the owner to maintain and inspect that part of the fence and to destroy wild dogs in the vicinity of that part of the fence. (1aa) For the purpose of determining the amount to be paid under subsection (1), the board may fix differential rates of payment in respect of different parts of a fence. (1a) If any part of a dog fence is owned jointly by two or more owners, the board must pay the amount referred to in subsection (1) to such of the owners as the board is satisfied will undertake the liability of carrying out the work referred to in subsection (2), and the board may require the joint owners to enter into an agreement relating to that liability. (1b) Subsection (1a) does not derogate from section 22 or 23. (2) An amount paid to an owner must be applied by the owner for the purpose of the maintenance and inspection of a fence and the destruction of wild dogs in the vicinity of the fence. (2a) With the consent in writing of the board, the owner may apply any such amount or any part of it for the payment of any interest payable in respect of any capital liability incurred by the owner in respect of a fence. (2b) A consent may be given under subsection (2a) for a period and on conditions fixed by the board. (3) The board may, in any case it thinks fit, pay an amount payable under this section in instalments. (4) An amount paid to an owner under this section must be applied during the financial year in respect of which it is paid or during such other period as may be directed in writing by the board and in accordance with any other directions in writing given by the board at the time of payment to the owner. (5) If under this Act an amount is payable to the board by an owner, that amount must be set off against any amount payable to the owner under this section. (5a) If satisfied that an owner will not properly carry out the duties imposed on him or her by this Act the board may refuse to pay to the owner the balance of the amount payable to the owner under this section or any other amount payable to the owner under this section. (6) The board may, by notice in writing given to an owner to whom an amount is paid under this section, require the owner to supply to the board within the time specified in the notice, a statement in writing showing how any amounts so paid have been expended during the period specified in the notice and during the financial year in which the notice is given or during the preceding financial year. 24A—Provisions as to ownership of dog fences (1) Subject to subsection (2), where part of a dog fence stands or is erected or constructed on land comprised in a Crown lease as defined in section 147 of the Crown Lands Act 1929, the lessee of the land under the lease will, for the purposes of this Part, be taken to be the owner of such part of the fence on that land as is not vested in a local board. (2) Where a dog fence divides contiguous land of adjoining owners, the owner of the land inside the dog fence will, for the purposes of this Part, be taken to be— (a) the owner of the land on which that part of the fence is situated; and (b) the owner of so much of that part of the fence as is not vested in a local board. (3) Where a part of a dog fence adjoins the area in relation to which a local board is established, the ownership of that part of the dog fence is vested in that local board. (4) However, the Governor may, by proclamation made on the recommendation of the board and with the agreement of the relevant owner of the land, vest part of the fence vested by subsection (3) in the owner of the land on which the fence is situated. (5) The Governor may, by subsequent proclamation made on the recommendation of the board, revest any part of the fence vested by subsection (4) in a local board. Part 4—Financial provisions 25—Imposition of rates on ratable land (1) The board may, by notice published in the Gazette, declare that any holding of more than 10 square kilometres of land that is situated within an area inside a dog fence specified in the notice is ratable land and, by further notice, amend or vary that notice. (2) With the approval of the Minister, the board may, by notice published in the Gazette, declare in respect of each financial year a rate on ratable land and a minimum amount payable by way of rates. (3) The rate must be expressed as an amount per square kilometre of ratable land, not exceeding $2.00 per square kilometre. (4) Where the amount of rate payable by a person would be less than the minimum amount for the time being declared under this section, the amount payable by that person is that minimum amount. (5) In this section— holding includes 2 or more parcels of land that— (a) are farmed as a single enterprise; and (b) are occupied by the same person or persons, whether or not the pieces of land are contiguous. 26—Special rate in respect of local board areas (1) The board may, by notice published in the Gazette, in respect of each financial year, declare a special rate on holdings of more than 100 hectares that are situated within the area in relation to which a local board is established. (2) The special rate must, unless the Minister and each occupier of land on which the special rate is declared agree otherwise, be expressed as an amount per square kilometre of the land on which it is declared, not exceeding $3 per square kilometre. (3) The amount collected or recovered by the board in consequence of the declaration of a special rate on land within the area in relation to which a local board is established, less the cost to the board of collection and recovery of that amount, is to be paid to the local board. 27—Payment and recovery of rates and special rates (1) The board must as soon as practicable after the declaration of a rate or special rate under this Part serve on the occupier of ratable land or on the occupier of land on which the special rate is declared, as the case may be, a notice stating the amount the occupier is liable to pay by way of rates or special rates, as the case may be. (2) Subject to subsection (3), the amount of the rate or special rate imposed under this Part is due and payable on the expiration of 28 days from the day on which the notice is served under subsection (1). (3) The board may, in such cases and with such conditions as it thinks fit, extend the time for payment of the rate or special rate. (5) Any rate or special rate imposed under this Part is, when it becomes due and payable, a debt due to the board and may be recovered in any court of competent jurisdiction. 27A—Contribution by councils as alternative to rating by board (1) The board may, with the approval of the Minister and after consultation with the Local Government Association of South Australia, by notice published in the Gazette— (a) declare a council (other than a council whose area is comprised of or includes ratable land under section 25) to be a participating council for the purposes of this section; and (b) before 31 December in any year, declare that a contribution for the next financial year is to be paid to the board by each participating council consisting of— (i) in respect of the portion of the council area that is rural land—a specified percentage, not exceeding one per cent, of the general rate revenue to be derived by the council for that next financial year in respect of that rural land; and (ii) in respect of the portion of the council area that is urban land—a specified percentage, not exceeding 0.25 per cent, of the general rate revenue to be derived by the council for that next financial year in respect of that urban land. (2) The board may, by notice published in the Gazette, amend or vary a notice under subsection (1). (3) The board must cause notice in writing of a declaration under subsection (1)(b) to be served on each council to which it applies not later than 31 December of the year in which the declaration is made. (4) A council to which a declaration under subsection (1)(b) applies must pay the contribution specified in the declaration to the board for the credit of the Dog Fence Fund not later than 31 May in the financial year next following the making of the declaration. (5) In this section— council means a council constituted under the Local Government Act 1999; rural land means land that is ratable land under the Local Government Act 1999 and does not lie within a municipality or township within the meaning of that Act; urban land means land that is ratable land under the Local Government Act 1999 and lies within a municipality or township within the meaning of that Act. 28—Charge to be payable by occupiers of land outside dog fence (1) The board may, in respect of a financial year, levy a charge on the occupier of land to which this section applies. (2) The amount of a charge levied against an occupier under this section is to be calculated by multiplying the length of that part of a dog fence that is adjacent to his or her land (expressed in kilometres) by the prescribed rate. (3) Subject to subsection (4), a charge under this section becomes due and payable on the expiration of 28 days from the day on which notice of the charge is served on the occupier. (4) The board may, in such cases as it thinks fit, extend the time for payment of the charge by such period as it considers the circumstances warrant. (5) A charge under this section is, when it becomes due and payable, a debt due to the board and may be recovered in any court of competent jurisdiction. (6) Amounts received by the board under this section must be paid to the owners of those parts of a dog fence that are contiguous to land occupied by persons against whom the charges are levied. (7) Payments made under subsection (6) must be proportioned amongst the owners according to the length of dog fence that divides their land from the land occupied by the persons charged under this section, and are in addition to other payments that may be made by the board under other provisions of this Act. (8) The board must, at the expiration of each successive period of five years after the commencement of the Dog Fence Act Amendment Act 1984, in consultation with the Livestock SA Incorporated, review the prescribed rate and may, on the completion of the review, recommend to the Governor that the prescribed rate be increased or reduced. (9) In this section— land to which this section applies means land of one occupier (being land situated outside a dog fence) that is divided from land of another occupier by the dog fence; prescribed rate means $37.50 per kilometre or such other amount per kilometre as may be fixed by regulation on the recommendation of the board under subsection (8). 31—Subsidy The Treasurer must, out of money to be provided by Parliament for the purpose— (b) as soon as may be after the commencement of each financial year, pay to the board a subsidy at the rate of $1 for every dollar of the rates and contributions by councils declared by the board for each such financial year and payable in respect of each such financial year. 32—Advance to board by Treasurer For the temporary accommodation of the board, the Treasurer may, without any further appropriation than this section, from time to time advance to the board from the Consolidated Account any amount considered necessary by the Treasurer at such interest and on such conditions as the Treasurer thinks fit and an amount so advanced may be set off against any future subsidy payable to the board under section 31. 32A—Borrowing and investment powers of board (1) The board may, for the purposes of this Act, borrow money from the Treasurer or, with the consent of the Treasurer, from any other person. (2) Liabilities incurred by the board under subsection (1) with the consent of the Treasurer are guaranteed by the Treasurer. (3) A liability of the Treasurer under a guarantee arising by virtue of subsection (2) is to be satisfied out of the Consolidated Account which is appropriated by this section to the necessary extent. (4) Any money of the board that is not immediately required for the purposes of this Act may be invested in such manner as the Treasurer may approve. 33—Dog Fence Fund (1) The money of the board is to be held by the Treasurer in a fund called "The Dog Fence Fund". (2) The fund will consist of— (a) money received by the board as rates or contributions by councils; (b) money paid to the board as a subsidy on rates or contributions by councils declared by the board; (c) any other money received by the board. (3) The fund may, without any further appropriation than this Act, be expended by the board for the purposes of the execution and administration of this Act. 34—Annual report (1) The board must within three months after the close of each financial year, prepare and present to the Minister a statement of its receipts and payments and a report on its operations during that financial year and the report must as soon as practicable after it has been received be laid before both Houses of Parliament. (3) The board must, within 14 days after presenting its report and statement of receipts and payments to the Minister, publish in the Gazette a copy of the statement of receipts and payments. 35—Audit (1) The Auditor-General must make an annual audit of the board's accounts and for the purpose of any audit may exercise any of the powers which he or she could exercise for the purpose of auditing the accounts of a Government department. (2) For each audit the board must pay to the Treasurer a reasonable fee of an amount approved by the Treasurer. Part 4A—Local dog fence boards 35A—Establishment of local dog fence boards (1) For the purpose of defraying the cost of erecting and maintaining part of a dog fence, or a fence that the board proposes to substitute as part of a dog fence instead of an existing part, the Minister may, on the recommendation of the board, by notice in the Gazette, establish a local dog fence board constituted of the persons specified in the notice for the area inside a dog fence specified in the notice. (2) The local board will have the powers and duties specified in the notice. (3) A local board established by proclamation before the commencement of this section continues as if it were established by notice under this section. 35AB—Borrowing and investment powers of local board (1) A local board may, for the purposes of this Act, with the consent of the board— (a) borrow money from the Treasurer; or (b) borrow money, with the additional consent of the Treasurer, from any other person. (2) Liabilities incurred by a local board under subsection (1) with the consent of the Treasurer are guaranteed by the Treasurer. (3) A liability of the Treasurer under a guarantee arising by virtue of subsection (2) is to be satisfied out of the Consolidated Account which is appropriated by this section to the necessary extent. (4) Any money of a local board that is not immediately required for the purposes of this Act may be invested in such manner as the Treasurer may approve. 35C—Variation and abolition of local boards The Minister may, on the recommendation of the board, by notice in the Gazette— (a) alter the constitution, or the powers and duties, of a local board established by proclamation or notice under section 35A; or (b) abolish a local board established by proclamation or notice under section 35A and make provision for incidental matters. Part 5—Miscellaneous 36—Administrative arrangements (1) The board may arrange with the Minister on such terms as are mutually agreed, for the carrying out by employees of the Government of any administrative work on behalf of the board and of the compiling and keeping of any records necessary for the purposes of the board. (2) Without limiting the generality of subsection (