Last Updated: December 1, 2016

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EDO Qld does not support position of Qld Law Society on veg laws

3 June 2016

EDO Qld does not support the position of the Queensland Law Society on vegetation management laws.

EDO Qld is surprised that the Queensland Law Society has come out so strongly against these basic laws that have been in effect and accepted since 2004, being the reversal of the onus of proof, and the exclusion of the defence of the mistake of fact.

These laws have been found to be necessary to make sure that our Vegetation Management Act 1999 (Qld) is able to be properly enforced across Queensland; in other words, to safeguard justice around the protection of our state’s vegetation.

The reversal of the onus of proof and removal of the defence of mistake of fact may sound contentious, but there is express provision in the Fundamental Legislative Principles which provide for situations where the onus of proof can be reversed if necessary to ensure that a law is upheld, where the matter would be extremely difficult, or very expensive for the State to prove, and where the subject of proof is peculiarly within the defendant’s knowledge.  (See section 7.2.4 of the Qld Legislation Handbook).

The proof of the identity of who cleared vegetation fits just this scenario – it is extremely difficult and expensive for the State to gather sufficient evidence to prove the identity of who cleared land once it is cleared across the vast expanses of Queensland, and the proof as to whether it was the landholder or not is within the defendant’s knowledge and ability to easily prove.

Equally, the Criminal Code provides express permission to exclude the operation of the defence of mistake of fact (section 24(2)). In the Vegetation Management Act it is seen as necessary to exclude the defence of mistake of fact due to the enormous amounts of resources the Department has put into informing landholders of the regulations provided around clearing under the Vegetation Management Act, which has been in place since 1999, and due to the difficulty in disproving a state of mind that might have existed at the time of the offence. This defence has equally been excluded in our Forestry Act 1959 (Qld) (section 94) and until recently in our Water Act 2000 (Qld).

EDO Qld thoroughly support that the Fundamental Legislative Principles should be followed as far as possible, but equally, as envisaged by the Principles themselves, there are some instances where the Principles are not seen to be appropriate to apply, to ensure that a law is effective – the reinstatement of these provisions in our Vegetation Management Act is one of those instances.