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Thursday, 21 August 1969

Senator CAVANAGH (South Australia) - I rise again because the Minister's comments in replying to the question I raised, in which he referred to a similarity with the case of the fig tree mentioned by Senator Gair, suggested to me that the Minister did not fully grasp what I was trying to convey to him. I acknowledge the necessity to lop or uproot trees where it is essential to the making of a survey. I also acknowledge that clauses 1 0 and 1 1 make provisions for a landlord to claim adequate compensation. We all agree that it is essential, for the purposes of mapping and surveying, that nothing should stand in the way of those carrying out these operations.

The point I make is: What trees should we allow to be lopped and what trees should we allow to bc uprooted? Surely it is obvious that the trees we permit to be uprooted are those necessary for the purpose of carrying out the mapping or surveying. After deciding what trees have to be removed to carry out the work required, it is proposed that we give 7 days notice in order to permit any person concerned time to apply to a court for an injunction against the Department to prevent the lopping of particular trees. They may have some value to the owner. This would prevent lopping or removal of trees other than in compliance with the legislation. But as the Bill stands, if the owner seeks an injunction he is faced with the argument that in the opinion of the authorised person the removal or lopping is necessary. The point is that the question is not whether it is necessary in fact.

Senator Greenwood - The honourable senator is saying that you cannot challenge the opinion. There is no way of challenging the opinion.

Senator CAVANAGH - I am opposing the words 'in his opinion'. There should be rights given to uproot the tree or lop the tree or bush. I am seriously handicapped in my argument for the preservation of native trees and shrubs because Senator Mulvihill is not present. Trees and shrubs have a value. Another point to be considered is that the land and property concerned could be associated with some sacred rites of an Aboriginal tribe. This Bill gives the landowner no opportunity to argue whether it is necessary to lop the particular tree to enable people to carry out their work in accordance with this legislation. If the owner goes to court then the authorised person merely has to say: 'I am of the opinion that this is necessary' and the court is powerless to act in the interest of the landowner. I refer the Committee to clause 7 (1.) which states:

Subject to the next succeeding sub-section, an authorised person who, in pursuance of the last preceeding section enters upon any land for the purpose of carrying out a mapping survey, may trim, lop or cut down any tree or bush growing on that land that, in his opinion, prevents or obstructs the carrying out of that survey. . . .

I ask why it is necessary to have the words in his opinion' included. This restricts the right of the owner of the tree or bush concerned. If those words were eliminated it would provide an opportunity to argue that the cutting or lopping was not necessary.

I raise this point because I believe more care should be taken when drafting legislation to preserve the rights of the individual rather than to ensure that all rights are on the side of government authorised people. I cannot see the value of insisting upon 7 days notice being given, as is provided in clause 7 (3.) if it is not to permit the owner the opportunity to take some action if he thinks he has been wronged. While those words 'in his opinion' are in section 7(1.) it seems to me that the owner has no redress. That is the point I am trying to make.

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