South Australia: Botanic Gardens and State Herbarium Act 1978 (SA)

South Australia Botanic Gardens and State Herbarium Act 1978 An Act to provide for the establishment and management of public botanic gardens and herbaria; and for other purposes. Contents Part 1—Preliminary 1 Short title 5 Interpretation Part 2—Administration 6 Board of Botanic Gardens and State Herbarium 7 Constitution of Board 8 Terms and conditions of office 9 Validity of acts of Board 10 Presiding member 11 Conduct of business by Board 12 Director to attend meetings of Board 13 Functions of Board 14 Board not to divest or be divested of interest in lands except in pursuance of resolution of Houses of Parliament 15 Board subject to general control and direction of Minister 16 Delegation by Board 17 Borrowing by Board 18 Investment by Board 19 ADI accounts 20 Director and other staff 22 Accounts 23 Annual report Part 3—Miscellaneous 24 Damage to property of Board 24A Lighting of fires prohibited unless authorised 25 Summary offences 26 Financial provision 27 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 Botanic Gardens and State Herbarium Act 1978. 5—Interpretation In this Act, unless the contrary intention appears— the Board means the Board of the Botanic Gardens and State Herbarium established under Part 2; the Director means the person for the time being holding, or acting in, the office of Director of the Botanic Gardens and State Herbarium. Note— For definition of divisional penalties (and divisional expiation fees) see Appendix. Part 2—Administration 6—Board of Botanic Gardens and State Herbarium (1) The Board of the Botanic Gardens and State Herbarium is established. (2) The Board is a body corporate with full juristic capacity. (3) Where an apparently genuine document purports to bear the common seal of the Board, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of the Board was duly affixed to that document. 7—Constitution of Board The Board consists of eight members appointed by the Minister. 8—Terms and conditions of office (1) A member of the Board will be appointed for such term of office, not exceeding four years, and on such terms and conditions, as the Minister may determine and, on the expiration of a term of office, is eligible for reappointment. (2) The Minister may appoint a suitable person to be a deputy of a member of the Board, and such a person, while acting in the absence of that member will be taken to be a member of the Board, and has all the powers, authorities, duties and obligations of the member of whom he or she has been appointed a deputy. (3) The Minister may remove a member of the Board from office for— (a) mental or physical incapacity; or (b) neglect of duty; or (c) dishonourable conduct. (4) The office of a member of the Board becomes vacant if the member— (a) dies; or (b) completes a term of office; or (c) resigns by written notice addressed to the Minister; or (d) is removed by the Minister pursuant to subsection (3). (5) On the office of a member of the Board becoming vacant, a person will be appointed, in accordance with this Act, to the vacant office, but where the office of a member of the Board becomes vacant before the expiration of a term of appointment, the successor may be appointed only for the balance of the term. 9—Validity of acts of Board (1) An act or proceeding of the Board is not invalid by reason only of a vacancy, or vacancies, in its membership. 10—Presiding member (1) The members of the Board must, in July each year, elect one of their number to be the presiding member of the Board for a term of one year. (2) A member is, on the expiration of a term of office as presiding member, eligible for re-election. (3) If the presiding member ceases to be a member of the Board before the expiration of a term of office, the members of the Board must elect one of their number to be the presiding member for the balance of the term. 11—Conduct of business by Board (1) Five members of the Board constitute a quorum of the Board. (2) A decision carried by a majority of the votes of the members present at a meeting of the Board is a decision of the Board. (3) The presiding member must preside at meetings of the Board at which he or she is present and, in the absence of the presiding member from a meeting, the members present must choose one of their number to preside. (4) Subject to this Act, the business of the Board may be conducted in such manner as the Board may determine. 12—Director to attend meetings of Board The Director must, unless excused from attendance by the Board, attend at every meeting of the Board. 13—Functions of Board (1) The functions of the Board are as follows: (a) to establish and maintain botanic and other gardens for the use and enjoyment of members of the public on land vested in or placed under the control of the Board; and (b) to establish and manage in, or in connection with, its gardens exhibitions of interest in the fields of botany, horticulture, biology, conservation of the natural environment or history; and (c) to establish and maintain a herbarium and, subject to this Act, to retain original specimens included in the herbarium; and (d) to accumulate and care for specimens (whether living or preserved), objects and things of interest in the fields of botany, horticulture, biology, conservation of the natural environment or history; and (e) to accumulate and classify data in regard to any such matters; and (f) to manage all lands and premises vested in, or placed under the control of, the Board; and (g) to manage all funds vested in, or under the control of, the Board and to apply those funds in accordance with the terms and conditions of any instrument of trust or other instrument affecting the disposition of those funds; and (h) to carry out, or promote, research into matters of interest in the fields of botany, horticulture, biology, conservation of the natural environment or history; and (i) to disseminate information of interest in the fields of botany, horticulture, biology, conservation of the natural environment or history; and (j) to engage in commercial activities for the financial or reputational benefit of the Board; and (k) to provide courses of education and training, including vocational education and training, in relation to the fields of botany, horticulture, biology, conservation of the natural environment and history— (i) whether on a commercial basis or otherwise, as determined by the Board; and (ii) whether by the Board acting alone or in partnership or joint venture with another person or body; and (l) to provide consultant services; and (m) to perform any other functions assigned to the Board under this or any other Act or by the Minister. (1a) The Board is not required to accept, accumulate or retain material that does not, in the opinion of the Board, justify collection and classification or retention under this Act. (2) The Board may, for the purpose of performing its functions under this Act— (a) acquire any interest in land or buildings; and (b) carry out any works for the purpose of establishing, maintaining or developing its gardens, lands, facilities and amenities; and (c) acquire plants, seeds, roots, animals, books, ornaments or any specimen, object or thing of scientific or historical interest; and (d) acquire any interest in machinery, vehicles or other fixed or movable plant or equipment; and (e) acquire any interest in any other personal property; and (f) dispose of any interest in real or personal property including objects or things of scientific or historical interest accumulated by it; and (fa) form, or acquire, hold, deal with and dispose of shares or other interests in, or securities issued by, bodies corporate, whether within or outside of the State; and (fb) borrow money or obtain other forms of financial accommodation; and (g) establish and manage, or lease out, refreshment and eating amenities in or in connection with its gardens; and (h) enter into any contract, agreement or arrangement with any person or body; and (ha) acquire, hold, deal with or dispose of— (i) licences; or (ii) intellectual property (including patents and copyright); or (iii) any other property (whether real or personal); or (iv) any interest in such property; and (hb) enter into any partnership or joint venture arrangement; and (hc) carry on advertising or promotional activities; and (hd) conduct events and establish, operate, manage or make available venues and other facilities (including facilities for food and liquor) on land vested in or placed under the control of the Board; and (he) regulate and control admission to any venue for any events or activities conducted or promoted by the Board; and (hf) subject to any requirements set out in the regulations, determine, charge and collect fees and charges— (i) for admission to exhibitions, events or activities conducted on special occasions or for special purposes; and (ii) in relation to education and training or other services provided by the Board; and (hg) grant for fee or other consideration advertising or sponsorship rights or other rights, licences or concessions in connection with events or activities conducted or promoted by the Board; and (i) exercise such other powers as may be conferred on it by or under this Act; and (j) exercise such powers as may be necessary for, or in connection with, or incidental to, the effective performance, exercise and discharge of its functions, powers and duties under this Act. (3) However, the Board must not, without the approval of the Treasurer, exercise a power referred to in subsection (2)(fa) or (fb). (4) For the purposes of subsection (1)(k), the Board may take such action as may be necessary to comply with requirements of any laws of this State or the Commonwealth in relation to the provision of education and training (including complying with the requirements necessary for registration (and maintaining registration) as a registered training organisation under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth). (5) To avoid doubt, the Board may not charge or collect fees or charges for admission to the gardens or other land vested in, or under the control of, the Board, or any part of those gardens or that land (except as permitted under subsection (2)(hf)). 14—Board not to divest or be divested of interest in lands except in pursuance of resolution of Houses of Parliament (1) The Board may not dispose of any interest in land vested in it, nor may it be divested of the control of any land placed under its control, except in pursuance of a resolution passed by both Houses of Parliament. (2) Notice of a motion for a resolution referred to in subsection (1) must be given not less than fourteen sitting days before the motion is passed. (3) A resolution referred to in this section is not required in respect of the grant of a lease or licence in respect of any land vested in, or placed under the control of, the Board, where the lease or licence is granted for a purpose connected with or incidental to the management of the gardens. 15—Board subject to general control and direction of Minister The Board is, in the performance, exercise or discharge of its functions, powers or duties under this Act, except where it makes, or is required to make, a recommendation to the Minister, subject to the general control and direction of the Minister. 16—Delegation by Board (1) The Board may delegate to any member of the Board, or to the Director or any other officer appointed for the purposes of this Act, any of its powers or functions under this Act. (2) Any delegation by the Board is revocable at will and does not derogate from the power of the Board to act itself in any matter. 17—Borrowing by Board (1) The Board may borrow money from the Treasurer, or, with the consent of the Treasurer, from any other person, for the purpose of performing its functions under this Act. (2) Any liability incurred with the consent of the Treasurer under subsection (1) is guaranteed by the Treasurer. (3) Any liability incurred by the Treasurer under a guarantee arising by virtue of subsection (2) must be satisfied out of the Consolidated Account which is, to the necessary extent, appropriated accordingly. 18—Investment by Board The Board may, with the consent of the Treasurer, invest any of its money that is not immediately required for the purpose of performing its functions under this Act in such manner as the Treasurer may approve. 19—ADI accounts (1) The Board may establish accounts at any ADI for the purpose of performing its functions under this Act. (2) An account established under this section must be operated by cheque signed and countersigned by such persons as the Board may appoint for that purpose. 20—Director and other staff (1) There will be a Director of the Botanic Gardens and State Herbarium and such other staff as may be reasonably required for the administration of this Act. (2) The Director will be a person employed in the Public Service of the State. (3) The other staff may comprise the following persons: (a) persons employed in the Public Service of the State and assigned to assist in the administration of the Act; (b) persons appointed by the Minister to assist in the administration of the Act; (c) persons appointed by the Board with the approval of the Minister on terms and conditions from time to time approved by the Commissioner for Public Employment. 22—Accounts (1) The Board must cause proper accounts to be kept of all its financial affairs and must in respect of each financial year prepare a statement of accounts in such form as the Treasurer may approve. (2) The Auditor-General may at any time, and must at least once in each year, audit the accounts of the Board. 23—Annual report (1) The Board must, on or before 30 September in each year, present a report to the Minister on the operations of the Board during the preceding financial year. (2) A report under this section must incorporate the audited statement of accounts of the Board for the financial year to which the report relates. (3) The Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before both Houses of Parliament. Part 3—Miscellaneous 24—Damage to property of Board (1) Any person who, without the authority of the Board, damages, mutilates, destroys or removes from the possession of the Board any property vested in, or under the control of, the Board is guilty of an offence. Penalty: Division 6 fine or division 6 imprisonment. (2) The Court before which any person is convicted of an offence under subsection (1) may order that person to pay to the Board compensation for the damage or destruction of any property of the Board. (3) This section does not derogate from any criminal liability to which a person may otherwise be subject. 24A—Lighting of fires prohibited unless authorised (1) A person must not, except as authorised under this section, light or maintain a fire on any land vested in, or placed under the control of, the Board. Penalty: Division 6 fine or division 6 imprisonment. Expiation fee: Division 7 fee. (2) Subsection (1) does not apply to— (a) the Director or any other staff appointed or assigned to assist in the administration of this Act under section 20 when acting in the course of official functions or duties; or (b) a person employed or engaged to perform services on behalf of the Board when performing those services; or (c) a person carrying out functions in accordance with a lease or licence issued by the Board. (3) The Director may, by signs placed from time to time on any prescribed land, authorise the lighting of fires in a barbecue, stove or other receptacle on the land, subject to any conditions specified in the sign. (4) The Director may, on application made by a person in such manner as the Director may require, authorise the lighting of a fire by the person on prescribed land in circumstances not authorised by the Director under subsection (3). (5) An authorisation under subsection (4)— (a) may be subject to such conditions as the Director thinks fit; and (b) may be varied or revoked by the Director at any time. (6) In this section— prescribed land means any of the following land vested in, or placed under the control of, the Board: (a) the land known as Wittunga Botanic Gardens in Blackwood; (b) the land known as Botanic Park in Adelaide; (c) any other land prescribed by regulation. 25—Summary offences Offences against this Act are summary offences. 26—Financial provision The money required for the purposes of this Act must be paid out of money provided by Parliament for those purposes. 27—Regulations (1) The Governor may, on the recommendation of the Board, make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) make provision in relation to any aspect of the administration of the gardens, or other land or property vested in, or under the control of, the Board, or any part of those gardens or that land or property; and (b) prescribe conditions upon which the public or any person may have access to, or use, the gardens or other land or property vested in, or under the control of, the Board, or any part of those gardens or that land or property; and (ba) confer such powers on the Director or other members of the staff appointed or assigned to assist in the administration of this Act as may be necessary or expedient for the purposes of the enforcement of the regulations; and (c) prescribe and provide for the recovery of charges for admission to the Bicentennial Conservatory situated within Adelaide Botanic Garden; and (d) prescribe and provide for the recovery of charges for any services provided by the Board; and (da) provide for the waiving or reduction by the Board or the Director of charges referred to in paragraphs (c) or (d); and (e) provide for the care and custody of any property of the Board; and (f) provide for the payment of rewards for information leading to the conviction of any person for an offence against this Act; and (g) regulate, restrict or prohibit, or provide that the Board may regulate, restrict or prohibit, the driving, parking or standing of vehicles on land vested in, or under the control of, the Board; and (ga) provide for the payment and recovery of fees determined by the Board in respect of the driving, parking or standing of vehicles on land vested in, or under the control of, the Board; and (gb) provide for the temporary control by the Director of the driving, parking or standing of vehicles on land vested in, or under the control of, the Board; and (gc) provide that the owner and driver of a vehicle driven, parked or left standing in contravention of the regulations are each guilty of an offence and provide or exclude defences in relation to any such offence; and (gd) provide for any matter in respect of procedure in relation to alleged offences against the provisions of the regulations dealing with the driving, parking or standing of vehicles; and (ge) fix expiation fees for alleged offences against the regulations; and (gf) provide for any matter in respect of evidence or burden or proof in proceedings for offences against the provisions of the regulations relating to the driving, parking or standing of vehicles; and (h) regulate, restrict or prohibit the bringing onto land vested in, or under the control of, the Board of any animal or thing specified in the regulations; and (ia) confer powers on the Board or the Director to approve (on payment of a fee, if any, determined by the Board) any act, or activity, that would be otherwise prohibited under the regulations; and (j) prescribe penalties not exceeding a division 7 fine for contravention of any regulation. (3) No regulation under this Act may impose, or authorise the imposition of, a fee (other than an expiation fee) in respect of the parking or standing of a vehicle on a Sunday or a public holiday. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Formerly Botanic Gardens Act 1978 Legislation repealed by principal Act The Botanic Gardens and State Herbarium Act 1978 repealed the following: Botanic Garden Act 1935 Botanic Garden Act Amendment Act 1940 Botanic Garden Act Amendment Act 1960 Botanic Garden Act Amendment Act 1961 Principal Act and amendments New entries appear in bold. Year|No|Title|Assent|Commencement| 1978|19| Botanic Gardens Act 1978|23.3.1978|5.10.1978 (Gazette 5.10.1978 p1106)| 1992|59| Botanic Gardens (Miscellaneous) Amendment Act 1992|12.11.1992|1.8.1993 (Gazette 24.6.1993 p2047)| 1996|34| Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996|2.5.1996|Sch (cl 6)—3.2.1997 (Gazette 19.12.1996 p1923)| 1999|33| Financial Sector Reform (South Australia) Act 1999|17.6.1999|Sch (item 8)—1.7.1999 being the date specified under s 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth as the transfer date for the purposes of that Act: s 2(2)| 2005|72| Botanic Gardens and State Herbarium (Lighting of Fires) Amendment Act 2005|8.12.2005|8.12.2005| 2009|84| Statutes Amendment (Public Sector Consequential Amendments) Act 2009|10.12.2009|Pt 22 (ss 43 & 44)—1.2.2010 (Gazette 28.1.2010 p320)| 2015|8| Statutes Amendment (Boards and Committees—Abolition and Reform) Act 2015|18.6.2015|Pt 6 (ss 37 & 38)—1.7.2015 (Gazette 25.6.2015 p3076)| 2023|39|Public Holidays Act 2023|7.12.2023|Sch 1 (cl 4)—1.1.2024: s 2| 2024|4|Botanic Gardens and State Herbarium (Miscellaneous) Amendment Act 2024|29.2.2024|2.5.2024 (Gazette 2.5.2024 p787)| Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision|How varied|Commencement| Long title|substituted by 59/1992 s 3|1.8.1993| Pt 1||| s 1|substituted by 59/1992 s 4|1.8.1993| ss 2—4|deleted by 59/1992 Sch|1.8.1993| s 5||| the Board|substituted by 59/1992 s 5(a)|1.8.1993| the Director|amended by 59/1992 s 5(b)|1.8.1993| the repealed Act|deleted by 59/1992 Sch|1.8.1993| Pt 2||| s 6||| s 6(1)|substituted by 59/1992 s 6|1.8.1993| s 6(2)|substituted by 59/1992 Sch|1.8.1993| s 6(3)|amended by 59/1992 Sch|1.8.1993| s 6(4)|deleted by 59/1992 Sch|1.8.1993| s 7|s 7(1) amended and redesignated as s 7 by 59/1992 Sch|1.8.1993| |amended by 8/2015 s 37|1.7.2015| s 7(2)|deleted by 59/1992 Sch|1.8.1993| s 8||| s 8(1) and (2)|amended by 59/1992 Sch|1.8.1993| |amended by 8/2015 s 38|1.7.2015| s 8(3)|amended by 8/2015 s 38|1.7.2015| s 8(4)|amended by 59/1992 Sch|1.8.1993| |amended by 8/2015 s 38|1.7.2015| s 8(5)|amended by 59/1992 Sch|1.8.1993| s 9||| s 9(1)|amended by 59/1992 Sch|1.8.1993| s 9(2)|amended by 59/1992 Sch|1.8.1993| |deleted by 84/2009 s 43|1.2.2010| s 10|substituted by 59/1992 Sch|1.8.1993| s 11||| s 11(1) and (2)|amended by 59/1992 Sch|1.8.1993| s 11(3)|substituted by 59/1992 Sch|1.8.1993| s 11(4)|amended by 59/1992 Sch|1.8.1993| s 12|amended by 59/1992 Sch|1.8.1993| s 13||| s 13(1)|substituted by 59/1992 s 7(a)|1.8.1993| |amended by 4/2024 s 3(1), (2)|2.5.2024| s 13(1a)|inserted by 59/1992 s 7(a)|1.8.1993| s 13(2)|amended by 59/1992 s 7(b), (c)|1.8.1993| |amended by 4/2024 s 3(3), (4)|2.5.2024| s 13(3)—(5)|inserted by 4/2024 s 3(5)|2.5.2024| s 14||| s 14(1) and (2)|amended by 59/1992 Sch|1.8.1993| s 15|amended by 59/1992 Sch|1.8.1993| s 16||| s 16(2)|amended by 59/1992 Sch|1.8.1993| s 17||| s 17(2) and (3)|amended by 59/1992 Sch|1.8.1993| s 18|amended by 59/1992 Sch|1.8.1993| s 19||| s 19(1)|amended by 33/1999 Sch (item 8)|1.7.1999| s 19(2)|amended by 59/1992 Sch|1.8.1993| s 20|substituted by 59/1992 s 8|1.8.1993| s 21 before deletion by 84/2009||| s 21(1)|amended by 59/1992 s 9(a), Sch|1.8.1993| s 21(2)|amended by 59/1992 Sch|1.8.1993| s 21(3)|substituted by 59/1992 s 9(b)|1.8.1993| s 21|deleted by 84/2009 s 44|1.2.2010| s 22||| s 22(1) and (2)|amended by 59/1992 Sch|1.8.1993| s 22(3)|deleted by 59/1992 Sch|1.8.1993| s 23|substituted by 59/1992 s 10|1.8.1993| Pt 3||| s 24||| s 24(1)|amended by 59/1992 s 11|1.8.1993| s 24(2)|amended by 59/1992 Sch|1.8.1993| s 24A|inserted by 72/2005 s 3|8.12.2005| s 25|substituted by 59/1992 Sch|1.8.1993| s 26|amended by 59/1992 Sch|1.8.1993| 27||| s 27(1)|amended by 59/1992 Sch|1.8.1993| s 27(2)|amended by 59/1992 s 12(a)—(e), Sch|1.8.1993| |amended by 34/1996 s 4 (Sch cl 6)|3.2.1997| |(i) deleted by 72/2005 s 4|8.12.2005| |amended by 4/2024 s 4|2.5.2024| s 27(3)|substituted by 59/1992 s 12(f)|1.8.1993| |amended by 39/2023 Sch 1 cl 4|1.1.2024| s 27(4)|deleted by 59/1992 s 12(f)|1.8.1993| Transitional etc provisions associated with Act or amendments Botanic Gardens (Miscellaneous) Amendment Act 1992 13—Transitional provision (1) The Board of the Botanic Gardens and State Herbarium is the same body corporate as the Board of the Botanic Gardens continued in existence under the principal Act. (2) The members of the Board in office immediately before the commencement of this Act continue in office under the principal Act as amended by this Act. Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996 5—Transitional provision An Act repealed or amended by this Act will continue to apply (as in force immediately prior to the repeal or amendment coming into operation) to an expiation notice issued under the repealed or amended Act. Historical versions Reprint No 1—1.8.1993|| Reprint No 2—3.2.1997|| Reprint No 3—1.7.1999|| 8.12.2005|| 1.2.2010|| 1.7.2015|| 1.1.2024|| Appendix—Divisional penalties and expiation fees At the date of publication of this version divisional penalties and expiation fees are, as provided by section 28A of the Acts Interpretation Act 1915, as follows: Division|Maximum imprisonment|Maximum fine|Expiation fee| 1|15 years|$60 000|—| 2|10 years|$40 000|—| 3|7 years|$30 000|—| 4|4 years|$15 000|—| 5|2 years|$8 000|—| 6|1 year|$4 000|$300| 7|6 months|$2 000|$200| 8|3 months|$1 000|$150| 9|–|$500|$100| 10|–|$200|$75| 11|–|$100|$50| 12|–|$50|$25| Note: This appendix is provided for convenience of reference only.