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QUEENSLAND
RIVER IMPROVEMENT TRUST ACT 1940-1977
[Reprinted as at 1 May, 1981]
River Improvement Trust Act of 1940, 4 Geo. 6 No. 5 As amended by
Burdekin River Trust Act Amendment Act of 1956, 5 Eliz. 2 No. 24
River Improvement Trust Acts Amendment Act of 1959, 8 Eliz. 2 No. 27 River Improvement Trust Acts Amendment Act of 1959 (No. 2), 8 Eliz. 2
No. 71
River Improvement Trust Acts Amendment Act of 1965, No. 34 Acquisition of Land Act of 1967, No. 48, s. 3 (2) First Sch.
Commenced 23 March 1968 (Proc. pubd. Gaz. 23 March 1968, p. 1206).
River Improvement Trust Act Amendment Act 1968, No. 29 River Improvement Trust Act Amendment Act 1968, (No. 2), No. 40 River Improvement Trust Act Amendment Act 1971, No. 21
Irrig,~tion Act and Another Act Amendment Act 1977, No. 5, Part III
An Act to Provide for the Control of Erosion in Relation to Part of the Burdekin River; to Make Financial Provision to Repair Damage Occasioned by Cyclone and Flood to the Banks of that River; to Constitute a Trust Charged with Guarding against the Future Occurrence of any such Damage; to Provide for the Constitution of a Trust under this Act in Relation to any other River; and for other purposes
[Assented to 16 October 1940]
BE IT ENACTED by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:-
1. Short title. This Act may be cited as " The River Improvement Trust Act of 1940," and shall be in force in and with respect to all river improvement areas.
As amended by Act of 1959, 8 Eliz. 2 No. 27, ss. 2, 4.
Collective title conferred by Act of 1977, No. 5, Part III, s. 5 (2).
2 s. 2 RIVER IMPROVEMENT TRUST ACT 1940-1977
2. (1) Meanings of terms. In this Act, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say:-
"Banks "-When used in relation to any river, the term includes all elevations or slopes confining or tending to confine waters flowing in, into, or out of that river during the period of any flood or cyclone to the bed thereof;
"-commissioner "-The Commissioner of Irrigation and Water ., Supply under and within the meaning of " The Irrigation
and Water Supply Commission Acts, 1946 to 1949 ";
" Land "-Includes (but without limiting its ordinary meaning or the meaning assigned to it by "The Public Works Land Resumption Acts, 1906 to 1938 ") any land the fee-simple of which is subject to any trust or which is held from the Crown upon any tenure or subject to any trust under any Act relating to the alienation of Crown lands:
The term also includes any estate or interest in land (legal or equitable) and any easement, right, power, or privilege over, in, or in connection with land;
"'Mm1ste1 "-Tile Minister for Local Government and Conserva- tion or other Minister of the Crown for the time being charged with the administration of this Act: the term includes a Minister of the Crown temporarily performing the duties of the Minister charged with the administration of this Act;
"Prescribed "-Prescribed by this Act;
" River "-Includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes the estuary of such river and any arm or branch of same and any part of the river subject to the ebb and flow of the tide at ordinary spring tides;
"River Improvement Area "-A river improvement area consti- tuted under this Act;
" This Act "-This Act and all Orders in Council and regulations hereunder;
"Trust"- A Trust constituted under this Act;
" Works "-The term includes the whole or any part of any works, project, undertaking, or other matter or thing whatsoever undertaken and/or maintained under this Act for the purposes of repairing as far as may be damage occasioned to the banks of any river within a river improvement area prior to or after the passing of this Act by flood or cyclone and/or of preventing as far as may be the future occurrence of such damage:
RIVER IMPROVEMENT TRUST ACT 1940-1977 s.2 3
The term also includes any trees, grass, or other plants planted and j or maintained for any of the aforesaid purposes;
The terin also includes-
(a) The removal of dead or growing timber, or other vegetation or aquatic plants, or of silt, shingle, soil, sand, gravel, stone, rock or other matter or thing whatsoever, from the bed, banks or fore- shore of any tidal waters or coastal lake or lagoon, or from the water or the bed or banks of a river or from any adjoining, adjacent or nearby lands, the placing or depositing of any such timber, or other vegetation or aquatic plants, or of silt, shingle, soil, sand, gravel, stone, rock or other matter or thing whatsoever, on any adjoining, adjacent or nearby land, including, in the case of removal from adjoining, adjacent or nearby lands hereinbefore referred to, on such lands, and the removal of or otherwise disposing of by burning (where appropriate, having regard to the nature of the matter or thing in question), or by any other means whatsoever, any such timber, or other vegetation or aquatic plants, or of silt, shingle, soil, sand, gravel, stone, rock or other matter or thing whatsoever placed or deposited as aforesaid;
(b) Changing or preventing the changing of the course of a river; defining and constructing the course of a river through a swamp or otherwise draining land;
(c) Preventing the erosion of the bed or banks of a river or of adjoining, adjacent or nearby lands by the waters of a river;
(d) Preventing the siltation of the course of a river where such work is confined to the bed or banks of a river and adjoining, adjacent or nearby lands;
(e) Preventing the flooding of land by the waters of a river;
(f) Deepening, widening, straightening or improving the course of a river;
(g) Preventing the inflow of sea water or saline water into the course of a river; or
(h) Preventing the erosion of lands by tidal waters or by the waters of any coastal lake or lagoon.
" Year "-The period of time from and including the first day of July in one calendar year to and including the thirtieth day of June in the next following calendar year:
4 RIVER IMPROVEMENT TRUST AIT 1940-1977
Provided that the period of time from and including the date of the constitution of a Trust to and including the thirtieth day of June next ensuing shall in relation to such Trust, constitute a year.
(2) References to other Acts. Where any other Act is referred to herein, such reference shall include any Act amending or substituted for such other Act.
As amended by Act of 1956, 5 Eliz. 2 No. 24, s. 2; Act of 1959, 8 Eliz. 2 No. 27, ss.2, 4; Act of 1965, No. 34, s. 2; Act of 1968, No. 40, s. 2; Act of 1971, No. 21, s. 2.
3. (1) Constitution of the Burdekin River Improvement Area. The Governor in Council shall . by Order in Council constitute a river improvement area to be called " The Burdekin River Improvement Area."
The Burdekin River Improvement Area shall comprise all such areas and/or parts of areas of Local Authorities as are included therein by the Order in Council constituting same:
· Provided that the Burdekin River Improvement Area may be constituted by the area or part of the area of any one Local Authority.
(2) Constitution
·or
other river improvement areas. A Local Authority may make an application and two or more Local Authorities may make a joint application to the Minister for the constitution of a river improvement area comprising in the case of a Local Authority its area or part thereof and, in the case of two or more Local Authorities, their areas or parts thereof. ·Upon the application, the Governor in Council may, on the recommendation of the Minister, by Order in Council, constitute a river improvement area comprising the area or p~trt or areas or parts of the Local Authority or, as the case may be, Local Authorities by which the applica- tion is made and assign to a river improvement area so constituted a name.
(3) The Governor in Council may at any time by Order in Council include in the Burdekin River Improvement Area or in another river improvement area any area or part of an area of a Local Authority which is not already included in some river improvement area:
Provided that this power shall not be exercised in relation to a river improvement area other than the Burdekin River Improvement Area except upon the recommendation of the Commissioner or the application of the Local Authority concerned.
(4) (a) Subject to paragraph (b) of this subsection, the Governor in Council may by Order in Council exclude from the Burdekin River Improvement Area or any other river improvement area the whole or portion of the area or part of the area of a Local Authority which is for the time being included therein.
(b) Where the Governor in Council so excludes the whole of the area or part of the area of a Local Authority, and within that area or part, works have been constructed by the Trust concerned, the Governor in Council shall by Order in Council-
(i) notwithstanding subsection (2) of this section, constitute the area of that Local Authority or such part thereof as the Governor in Council thinks fit a river improvement area under such name as shall be therein set forth; and
RIVER IMPROVEMENT TRUST Acr 1940-1917 ss. 4, 5 (ii) declare and apportion the· assets and liabilities of the Trust
concerned in such manner as to him appears just and give such directions as in his opinion are necessary to give effect thereto.
(c) A declaration, apportionment or direction made pursuant to this subse.ction shall be binding and effective on all persons. alid shall not be questioned in any proceedings whatever.
(5). (a) '' The Burdekin River . Benefited Area" as constituted immediately prior to the passing of " Th~ River Improvement Trust Acts Amendment Act of 1959," shall, as and from the passing of the said Act and without further or other constitutio,n, c.onstitute " The Burdekin River Improvement Area " under this Act.
(b) Any area or areas or part or parts of an area or areas constituted under this section as a benefited area and in existence as such an area immediately prior to the passing of " The River Improvement Trust Acts Amendment Act of 1959,'' shall, as and from the passing of the said Act and without further or other constitution, constitute a river improvement area under this Act.
As amended by Act of 1959, S Eliz. 2 No. 27, ss. 4, 5; Act of 1965, No.3~, s. 3;
Act of 1977, No. 5, s. 6.
4. Constitution of the Burdekin River Improvement Trust. (l) A Trust to be . called " The :aurdekin River Improvement Trust " is hereby con- stituted for the Burdekin River Improvement Area, ·which Trust shall, notwithstanding anything in. this Act, be and be deern:ed to be so constituted on such date as the Governor in Council shall by Order in
Council· determine. . . . . . .
(2) The Governor in Council shall, by the Order in Council constituting any river improvement area other than: 'the 'Burdekin River Imptovement Ar~;:a, or a later Ordet in Coq.ncil, constitute a Trust for spch riverimprovement area.
(3) (a) "The Burdekin River Trust" as constituted under sub- section. que of this section and in existence immediately pri,or to the passing qf" The River Improvement Trust Acts Amendment Act o/1959,'' shall, as and from the passing Of the said Act and without furtht<r or other constitution, constitute " The Burdekin River Improveme.Iit Trust "
for the Burdekin River Improvemellt Area.
(b) The Trust constituted under' subsection two of this section for any area and in existence immediately prior to the passing of " The River Improvement Trust Acts Amendment Act of 19,59,'' shall, as and from the passing of the said Act and without further or other constitution, constitute the Trust for the river improvement area which the said area now. constitutes.
As amended by Act of 1959, 8 Eliz. 2 No. 27, ss. 4, 6.
5. (I) Membership of Trust. Every Trust shall consist of the follow- ing members, namely:-
(i) A representative of the Government who shall be appointed by the Governor in Council and be chairman of the Trust; and
s
{) s.5. RIVER IMPROVEMENT TRUST A:Cf 194()..:..1977
(ii) Two representatives· of, and appointed by, each Local Authority the area or any part of the area of which is included in the benefited area for which the Trust is constituted.
The two members of a Trust representative of any Local Authority shall be members of such Local Authority and its chairman may be appointed one such representative.
(2) Tenure of office of members. 'fhe representative of the. Govern- ment shall hold office as member and· chairman of the Trust during the pleasure of the Governor in Council. . · .
Every member of the Trust repr~sentative of any Local Authority shall hold office as such at the pleasure of the Local Authority.
(3) Failure or refusal to act as member. If any member of the Trust representative of any Local Authority fails or refuses to act as such, or is absent without leave from three consecutive ordinary meetings of the Trust, he shall be deemed to have vacated office as such
member. ·
lf the office of a member of the Trust representative of any Local Authority becomes vacant under this subsection, or for any other reason whatsoever, such Local Authority may. appoint another of its .members to such vacant office and, if such Local Authc,>rity fails to do so within seven days after being thereunto required in writing by the Minister, the Governor in Council may appoint a person (who need not be a member of such Local Authority) to such vacant office.
Any person appointed under this subsection by. the Governor in Council shall hold office as a member of the Trust at the pleasure of the Governor in Council.
(4) Quorum at meetings. At any meeting of the Trust not less than one-half of the full number of members thereof for the time being shall constitute a quorum.
(5) Times of meetings and procedure thereat. The Trust shall meet at such times and places and conduct its business in such manner as may be prescribed or, in so far as not prescribed, as it may from time to time determine:
Provided that the Minister shall fix the time and place for the holding of the first meeting thereof.
(6) Deputy chairman. The Trust shall at its first meeting, and thereafter when and so often as a vacancy occurs in such office, appoint one of its members to be deputy chairman.
The deputy chairman may act in the office of chairman at all times when the chairman is prevented by absence, illness, or otherwise from performing his duties as such.
(7) Voting. At all meetings of the Trust every member present shall, save as otherwise provided by this Act, vote. ·
If a member refuses to vote his vote shall be counted for the negative.
RIVER IMPR.OVEMENT TRUSTACf,l940-~9'77 •eS •• .• ->:'i 6 ;; ,,
Inthe event of an equality ,of votes the chairman or (whim he is acting as chairman) the deputy chairman shall have a casting as well as
a deliberative vote. · · ·
(8) Interest disqualifies member . from voting. Subsection four of section fourteen of" The Local Government Act of 1936" shall, mutatis mutandis, apply and extend to and with respect to members of the Trust.
. (9). Adjournments. . The membt;:rs present at a meeting may- from
time to time adjourn the meeting. .
If a quorum is not present within half,;an-hour after the time appointed for a meeting, the members· present or the majority -of them or any one member if only one is present, or the secretary j f no ·member is present, may adjourn such meeting to any time not. latecthan seven days from the date of such adjournment: ·
. · ··Provided that nothing herein contained shall be construed to prevent the adjournment of any meeting to a later hour of the same; day on which such meeting was appointed to be held.
(10) Notice of meetings~ All notices. of any meeting or' adjourned meeting· (other than of a meeting adjourned to a later hour of the same day on which such meeting was appointed to be held) shall be in writing, and shall be delivered or sent by post or otherwise to tpe address. of each of the members previous to the meeting> · · · ·
Every such. notice shali · specify the time. of meetit1g and~ in the case of a special meeting, shall specify the·objectthereof. ' · . · . No business shall be 'transacted at any special meeting except sucp as is s.tated in the notice thereof. · · · · · ·
(11) Validation of proceedings. If any member refuses or neglects to act or to attend any duly convened tpeeting of the Trust, all lawful acts and proceedings of the Trust shall be as ,valid and effectual as if they had been done· or authorised by the full Trust.
No proceedings of the Trust or of any person acting as ,chairman or member shall be invalidated by reason of any defect in his appointment or of any disqualification of any such person or by reason of there being any vacancy in the number of members at the time ·of such proceedings, provided that the number of members is not reduced below two.
As amended by Act of 1959, 8 Eliz. 2 No. 27, s. 7; Act of 1959 (No.2), s·Eliz.
2 No. 71, s. 2. ·
6. Secretary, officers, and employees. (1) The Trust shall appoint a secretary and may appoint such other officers as it deems necessary.
The Trust may with the consent of any Local Authority represented thereon appoint the clerk of such Local Authority to be its secretary, and such clerk may hold both offices.
(2) The secretary shall, subject to the Trust, have power to execute documents on behalf of the Trust and to affix the official seal thereto and shall also have such other powers and perform such other duties as may from time to time be prescribed or, in so far as not prescribed, appointed or directed by the Trust.
8 s. 7 RIVER IMPROVEMENT TRUST ACf 1940-19n
(3) The Trust may retain or obtain the advice or services of such technical advisers and experts as it shall from time to time consider necessary.
(4) Employees. The Trust may employ such employees as it shall deem necessary.
As amended by Act of 1959 (No.2), 8 Eliz. 2 No. 71, s. 3.
7. Trust constituted a body corporate. (1) The Burdekin River Improvement Trust is hereby constituted a body corporate under the name and style of "The Burdekin River Improvement Trust," and every other trust is hereby constituted a body corporate under the name and style set forth in the Order in Council constituting it.
(2) The Trust shall, by its corporate name, have perpetual succession and an official seal and shall be capable in law of suing and being sued and, subject to this Act, shall have power to take, acquire by grant, purchase, sell, exchange, lease, transfer, surrender to the Crown, and hold lands, goods, chattels and other property.
(3) All courts, judges, justices, and persons acting judicially shall take judicial notice of the appointment of the chairman and other members of and of the secretary to the Trust and of their respective signatures and of the seal of the Trust affixed to any document or notice or other writing, and until the contrary is proved shall presume that any such signature or such seal, as the case may be, was duly affixed to any document or notice concerned.
( 4) Every document, notice, or other writing shall be sufficiently authenticated if it is signed by the chairman or any two members of the Trust or if it is sealed with the seal of the Trust and signed by the
·chairman or secretary of the Trust.
The chairman shall be the executive officer of the Trust.
(5) The name of any Trust (other than the Burdekin River Trust) incorporated under this section and in existence immediately prior to the passing of" The River Improvement Trust Acts Amendment Act of 1959,"
shall as and from the passing of the said Act, be changed by substituting the words " River Improvement Trust " for the words " River Trust " ..
The name of " The Burdekin River Trust " incorporated under this section and in existence immediately prior to the passing of " The River Improvement Trust Acts Amendment Act of 1959," shall as and from the passing of the said Act be changed by substituting the words " River Improvement" for the word "River".
The change in name of any such corporation shall not affect the continuance in office in terms of his appointment by or under this Act, of any member thereof, or the continuity of identity, or any rights and obligations, of the said corporation nor render defective any legal proceedings by or against the said corporation, and any legal proceedings that might have been commenced or continued by or against the said corporation by its former name may be commenced or continued by or against it by its new name.
As amended by Act of 1959, 8 Eliz. 2 No. 27, s. 8.
RIVER IMPROVEMENT TRUST ACT 1940-1977 · :ss.S,8A 8. Borrowing. (1) Subject to this Act a Trust may ,from time to time, with the prior authority of the Governor in Council, borrow money-
( a) from the Treasurer;
(b) by the sale of debentures; or . . . (c) partly in one and partly in another of the ways specified in
paragraphs (a) and (b) ofthis subsection, · for the purposes of exercising any powers or discharging any. functions or duties conferred or imposed by this Act.
. (2) Before entering into negotiations to borrow money, a Trust shall first obtain the sanction of the Treasurer authorizing· it to enter upon such negotiations and, for this purpose, shall furnish .the Treasurer such information as he requires.
(3) A Trust shall not borrow any money pursuant to any negotiations sanctioned by the Treasurer under subsection (2) of this section unless the authority of the Governor in Council thereto is first obtained.
In the case of a loan to be raised in whole or in part by the sale of debentures the authority shall be given by Order in Council. ..
The Order in < Council shall declare the amount that may be borrowed, .. the purposes for which the loan shall be. borrowed, the currency of the loan, the amount of interest payable thereon, the terms and conditions for the redemption of the· loan, . whether. by yearly. or half-yearly payments ·or payments into a sinking, fund; and such other conditions as the Governor in Council thinks proper to imp·ose ..
(4) Before proceeding to borrow any sum under and in pursuance of this section the Trust shalL at a special ~ee~ing called for tbe purpose pass a resolution to b0rrow that money. Notice of such special meeting and a copy ofthe resolution to be moved.atthe meetingshall be given to each member of the Trust at least seven days before, the date of the
meeting. ·
Substituted by Act of 1965,
No.
34, s. 4,9
SA. Further loan where aiDount·;borrowed ·inadequate •. · In the· event of any money borrowed pursuant to the provisions of section . eight of this Act proving'inadequate•for the purposes for which the sanie: was
borrowed, the Trust shall-'-' · · · · ·
(a) obtain the permission of the Treasurer to borrow such further
;. sums as are necessary for such purposes; and , (b) upon obtaining the permission of the. Treasurer, . pass a.e
resolution authorizing it to borrow such further sums · for
such purposes; and ·
(c). notify the Minister of the passing of the. resolution,
whereupon the Minister, if satisfied of such inadequacy and that it arose owing to circumstances beyond the control of the Trust may certify accordingly.
When the Min,ister so certifies, the Trust shall be at liberty to borrow such further sums as necessary for such purposes without the procedure prescribed by subsection (4) of section eight of this Act being complied with.
Inserted by Act of 1965, No. 34, s. 5.
10 SS~8B;8C RIVER IMPROVEMENT TRUST ACT 194()....1977
8B. Application of loan moneys. (1) All moneys borrowed by _a Trust shalL be expended for the purposes for which such Trust was authorized to borrow the same and, except as prescribed by this section, not otherwise.
. . · (2) If any amount of a loan remains unexpended upon the com- pletion of the purpose for which such loan was borrowed such amount shall be applied as directed by the J"'reasurer.
(3) A person advancing money to a Trust and receiving in consideration of an advance any debentures issued under the authority of this Act shall not be bound to inquire whether the issue of such debeQtures was in fact· duly authorized or into the application of the money advanced or be in any way responsible for the non-application or misapplication thereof.
Inserted by Act of 1965, No. 34; s. 5;
Sc. Repayment of Treasury loans. (I) Every loan advanced by the Treasurer under the provisions of this Act shall be liquidated by the payment to the Treasurer by the Trust on the first days of January and July, respectively, in every year of such instalments of principal and interest at the prescribed rate as will permit the said loan to be wholly redeemed within the prescribed period of the said loan, and· such sums shall continue to be payable until all moneys advanced from time to time by the Treasurer, together with the interest accrued thereon, have been so paid;
The Treasurer may at any time make any adjustment which he considers necessary to be made with respect to the period of any loan or the calculation of interest· thereon or with respect to any other matter requiring adjustment.
(2) In the months of February and August, respectively, in every year, the Treasurer shall cause to be published in the Gazette a state- ment showing, with respect to a Trust to which a loan has been advanced by the Treasurer under this Act, the amount of money which is then overdue and in arrear and also the total of the principal sum then remaining unpaid.
If thereafter on the thirtieth day of April, or the thirty-first day of October, respectively, any part of such moneys so overdue and in arrear remains unpaid or if the Treasurer pays any money under a guarantee given by him in relation to moneys borrowed by a Trust under the authority of this Act, the Treasurer may, by notification in the Gazette, appoint a receiver to collect on his behalf and to pay to the Treasury all or any moneys from time to time due and owing to the Trust concerned to the amount stated in such notification.
The Treasurer may from time to time make all such orders and give all such directions with respect to the powers and duties of such receiver and the management by him of the affairs of the Trust concerned as the Treasurer thinks proper, and judicial notice shall be taken of such orders and directions.
RIVER IMPROVBMENT.TRUST ACf 1940-1977 s. So 11
Thereupon such receiver shall from the date stated in such notification be the only person legally entitled to receive the revenues of the Trust concerned, and shall be deemed to that extent and for that purpose to be a "public accountant" within the meaning of'' The Audit Acts, 1874 to
1965." . . . . .
Inserted by Act ofl965, .No. 34, s. 5.
· 8o. Debentures. (1) Subject to this Act, all debentures sh;ill be issued in such series, at such time, and in such a manner as the Trust thinks fit, and shall be
a
charge upbn all the assets and revenues of the Trust howsoever arising, subjeCt to any prior debentures issued accordingto law. · ·
Such debentures shall bear interest at the rate and shall be repayable on the date respectively prescribed in the Order in Council referred to in subsection (3) of section eight of this Act.
(2) Every such debenture shall be under the seal of the Trust and shall be signed by the chairman and secretary, and when so sealed and signed shall be deemed to have been duly issued, and the holder thereof shall not be bound to inquire whether such issue was in fact duly authorized.
(3) The Trust may authorize the sale or disposal of any such debentures in Queensland or in places beyond Queensland; and may appoint an agent or agents to negotiate such sale. ·
(4) Every debenture shall specify the place and time where and when the principal and interest are payable.
(5) Any debenture may at the option of the lender be issued with or without coupons.
If issued with ·coupons, the debenture shall have annexed thereto for every payment (whether of principal or interest, or principal and interest) to grow due thereon a coupon.
(6) Every debenture and every coupon annexed to any debenture shall be transferable by delivery.
(7) In the case of any debenture issued with coupons the holder of
~:my such coupon shall be entitled to receive from the Trust payment of the sum specified in the coupon upon presentation thereof, either annexed to or separated from the debenture, at the place where, and on or after the date when, such sum is payable.
(8) In the case of any debenture issued without coupons, the lender or, in the event of the transfer of such debenture at any time or from time to time, the transferee for the time being shall, subject to this subsection, be entitled to receive payments from the Trust in respect of principal or interest, or both, in accordance with the terms and conditions of the debenture.
A transferee with respect to whom the Trust has not been given notice as prescribed shall not be entitled to receive, and the Trust shall not be liable to make to such a transferee, any payment in respect of any debenture issued without coupons except under attachment by process
12 ss. 8E, SF RIVER IMPROVEMENT TRUST Acr 1940-1977
of law and then only to the extent of moneys due and payable to such transferee under the debenture and unpaid by the Trust to the lender or a prior transferee.
The entitlement of a transferee with respect to whom the Trust has been given notice as prescribed to receive any payment in respect of a debenture issued without coupons shall be subject to any payment which, having become due and payable under such debenture before the Trust was given notice, was made by it to the lender or a prior transferee.
In this subsection the expression " notice as prescribed " means a notice in writing signed by the transferor and transferee and verified to the satisfaction of the Trust.
(9) The power under this Act of the Governor in Council to make regulations shall include power to make regulations prescribing standard forms of debentures.
A lender may agree to accept a standard form of debenture, but no lender shall be bound to do so.
Inserted by Act of 1965, No. 34, s. 5.
8E. (1) Notice of trusts not to be received. No notice of any trust express, implied or constructive shall be received by any Trust or by any officer or other employee or any agent of that Trust in relation to any debentures issued by that Trust under the authority of this Act and the Trust or any such officer, other employee or agent shall not be bound to see to the execution of any such trust to which any such debentures may be subject.
(2) Loan to be authorized investment. Unless expressly forbidden by the instrument (if any) creating the Trust, an investment by a trustee of trust funds in a loan raised under the authority of this Act shall be and be deemed to be an authorized investment by the trustee pursuant to the provisions of section four of " The Trustees and Executors Act of 1897" (as amended by subsequent Acts) and such Act shall be read and construed accordingly.
Inserted by Act of 1965, No. 34, s. 5.
8F. Guarantee of loans. (1) Notwithstanding anything to the contrary contained in any Act, the amount of any loan borrowed by any Trust by the sale of debentures under the authority of the Governor in Council with interest at the authorized rate shall be guaranteed by the Treasurer on behalf of the Government of Queensland.
(2) All moneys payable by the Treasurer pursuant to this section shall be paid out of moneys to be from time to time appropriated by Parliament for the purpose.
(3) The provisions of section five of " The Local Bodies' Loans Guarantee Acts, 1923 to 1957," shall, with any necessary adaptations thereof, extend and apply in respect of moneys paid by the Treasurer pursuant to this section.
Inserted by Act of 1965, No. 34, s. 5.
RIVER IMPROVEMENT TRUST ACT 1940-1977 ss.·SG-81 13 8G. Brokerage. A Trust may pay moneys by way of brokerage for or in respect of the making, procuring, negotiating, or obtaining the loan of any money which the Governor in Council has by Order in Council authorized that Trust to borrow;
Provided that no moneys shall be paid by the Trust by way of brokerage for or in respect of the loan of any moneys borrowed by it unless the Treasurer has approved of the payment of brokerage, which approval may be given by the Treasurer subject to such terms and conditions as to him shall seem fit.
Section fourteen of" The Money Lenders Acts, 1916 to 1962," shall not apply or extend to brokerage to which the Trust is authorized to pay under and in accordance with this subsection, and which brokerage has been approved by the Treasurer and is agreed to be paid by the Trust subject to the terms and conditions, if any, imposed by the Treasurer.
Inserted by Act of 1965, No. 34, s. 5.
8H. Remedies of debenture holders. If a Trust makes default in making a payment whether of principal or interest to the holder of any debenture or coupon issued by the Trust under the authority of this Act such holder may make application to and procure all necessary orders and directions from the Supreme Court for the appointment of
a
receiver and such court shall have power to make all such orders for the appointment of such a receiver and for his removal and the appointment of another in his place as may be necessary and to make any orders and give any directions which such court thinks proper.A receiver appointed pursuant to this section shall be deemed to be an officer of such court and shall act under its direction.
Inserted by Act of 1965, No. 34, s. 5.
81. (1) Remuneration of receiver. A· receiver appointed by the Treasurer pursuant to section 8c of this Act shall be entitled to such commission or remuneration for his services as the Treasurer orders.
A receiver appointed by the Supreme Court pursuant to the last preceding section shall be entitled to such commission or remuneration
as the court orders. ·
The commission or remuneration of a receiver shall be payable out of the revenue of the borrowing authority in relation to which he was appointed.
(2) Powers and duties of receiver. A receiver whether appointed by the Treasurer or the Supreme Court may collect all the revenue payable to the Trust in relation to which he was appointed and, for the purposes of this section, a receiver shall be deemed to be such Trust and may exercise all the powers of such Trust.
A receiver shall pay and apply all moneys received by him in the course of his receivership as follows:-
(a) Firstly, in payment of the costs, charges and expenses of collection and of his commission or remuneration;
14 SS, 8J·8L RIVER IMPROVEMENT TRUST ACT 1940-1977
(b) Secondly, if he was appointed by the Treasurer, in payment of the amount due and payable to the Treasurer including any money paid by the Treasurer under a guarantee given by the Treasurer in relation to moneys borrowed by the Trust under the authority of this Act together with interest on such amount at such rate as is specified by the Treasurer and, if he was appointed by the Supreme Court upon the application of a holder of any debenture or coupon in payment, subject to any order of the court, to such holder or to and amongst the holders of debentures or coupons of the same series as such holder or to the holders of debentures or coupons generally in such order of priority as the court thinks fit the amount due and payable to such holder or, as the case may be, holders;
(c) Thirdly, in payment of the residue of such moneys to the Trust.
Inserted by Act of 1965, No. 34, s. 5.
8J. Moneys recoverable as debt. If a Trust makes default in making a payment referred to in section 8H of this Act, the person to whom such payment should have been made may recover the amount in respect of which such default has been made as a debt by action against the Trust in any court of competent jurisdiction.
Inserted by Act of 1965, No. 34, s. 5.
8K. Regulations relating to loans. The power conferred on the Governor in Council by this Act to make regulations includes the power to make such regulations relating to the raising and repayment of loans under the authority of this Act and, without limiting the generality of the foregoing power,-
(a) prescribing the form of and the manner of the issuing of debentures, providing for the keeping and inspection of and the taking of copies of or extracts from the register of debentures and providing for lost or defaced debentures or coupons and the destruction of discharged debentures or
coupons;
(b) prescribing matters relating to the raising of loans outside the State;
(c) providing for sinking funds and other methods for the repayment of moneys borrowed, providing for and appointing trustees of a debt redemption fund with respect thereto and prescribing the powers, functions and duties of such trustees and regulating and controlling all or any matters with respect to such debt redemption fund, trustees, sinking funds or other methods aforesaid.
Inserted by Act of 1965, No. 34, s. 5.
8L. Illegal borrowing. (I) A person who lends money to a Trust otherwise than in accordance with this Act or some other Act shall have no remedy or right whatsoever to recover money from the Trust in respect of that loan.
RIVER IMPROVEMENT TRUST ACT 1940-1977 SS. 8M, 9 15 (2) If a Trust borrows any money which it is not legally authorized to borrow, all the members who have consented to the borrowing of such money shall be jointly and severally liable to repay the same and to pay all interest thereon to the person from whom the same was borrowed, and the same may be recovered from such members or any of them as money lent by such person to such members by action in any court of competent jurisdiction.
(3) If any moneys are appropriated from any fund for the purpose of repaying any money so borrowed or paying interest thereon, . the members who have consented to the misappropriation of such moneys for that purpose shall be jointly and severally liable to refund the same with interest at the rate of sixteen dollars per centum per annum, and the same may be recovered from such members or any of them by action in any court of competent jurisdiction at the suit of the Minister or any person thereunto authorized by the Minister who, upon recovery, shall pay the amount recovered into the fund in question, but shall be personally entitled to full costs of suit, including costs as between solicitor and client.
(4) The provisions of this section shall be construed so as not to prejudice the operation of the provision of subsection (3) of section 8B of this Act.
Inserted by Act of 1965, No. 34, s. 5.
Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965.
8M. Advance by way of overdraft. A Trust may, on application to the Commissioner, and with the approval of the Minister, obtain from any bank or banks temporary financial accommodation by way of advance on overdraft on current accounts upon the credit of its funds.
A Trust shall not suffer the principal moneys owing on such overdraft to exceed the amount for the time being fixed in respect of that Trust by the Minister (he being empowered hereby so to do).
Inserted by Act of 1968, No. 29, s. 2 .
. 9. Compulsory acquisition of land. (1) In respect of any works or purpose with respect or in relation to which any right, power or authority is conferred or duty or obligation imposed upon the Trust under this Act, the Trust shall be a constructing authority under " The Acquisition of Land Act of 1967."
(2) Where, land assigned to a sugar mill is taken the Central Sugar Cane Prices Board may, and is hereby empowered to, grant an assignment of other land to the same or another sugar mill in the stead of the assigned land so taken.
The value of any assignment so granted or proposed to be so granted shall be set off against the compensation payable.
Substituted by Act of 1967, No. 48, s. 3 (2) First Sch.
16 s.lO · RIVER IMPROVEMENT TRUST ACI' 19~1977
10. Works which Trust shall undertake and/or maintain. (1) The Trust shall undertake and/or maintain the following works, namely:-
(a) All such works as the Commissioner, with the consent of the Minister, from time to time directs or approves; and (b) All such works as the Commissioner, with the consent of
the Minister, directs the Trust to maintain:
Provided that no such work shall be undertaken by the Trust in, on, over, through or across any foreshore or any land lying under the sea within Queensland waters or any land lying under any harbour (including any navigable river) without the joint approval of the Minister and the Mhi.istet administering "The Harbours Acts, 1955 to 1959," and " The Queensland Marine Act of 1958," previously had and obtained.
The provisions of subsection two of section eighty-six, sections
eighty~seven t() ninety, both inclusive, and subsection one of section ninety- one of "The Harbours Acts, 1955 to 1959," shall not apply to works undertaken. for the purposes of this Act with the joint approval of the, Minister and the Minister administering "The Harbours Acts, 1955 to 1959," and "The Queensland Marine Act of 1958 ":
Provided further that any such works which will interfere with, damage, or prejudice otherwise howsoever any works or undertakings of the Crown, any Local Authority, any Electric Authority, or any corporation, instrumentality or authority (other than a Harbour Board) created by or under any Act, or which are objected to by any of the aforesaid on the ground of interference, damage or prejudice as aforesaid shall not be undertaken by the Trust without agreement as to the steps and things to be taken and done for preventing or minimising any such interference, damage or ·prejudice or, failing such agreement, until such steps and things have been determined by the Governor in Council.
(2) Moreover, the Trust shall before the expiration of each year plan a programme of works for the following year and shall submit such plan to the Commissioner who, subject to the consent of the Minister, may approve of same either with or without modification.
This subsection shall not prejudice or limit the power of the Com- missioner to direct the Trust to undertake and/ or maintain any works.
(3) The power of the Trust to. undertake works includes, but without limiting the ordinary meaning of that term, power, subject to the direction or approval ofthe Commissioner in that behalf given with the consent of the Minister, to construct, establish, carry out, manage, and/or control the works concerned.
(4) The Trust may enter into contracts for or with respect to the undertaking and/or maintenance of any works.
(5) Contracts. The trust may agree with any owner or, where the owner is not the occupier, with the owner and occupier of any land for or with respect to the undertaking and/or maintenance by the Trust of works in or upon such land or any part thereof and/or for or with respect to the use by the Trust of any land or any part thereof
RIVER IMPROVEMENT TRUST.ACI' 1940-1977 s.lO 17 for the purposes of ingress, egress, and regress to and from such land or any other land upon or in which the Trust is undertaking and/or maintaining any works.
Upon production to the Registrar ofTitles·or, if some other authority is charged with registering instruments of title to the land concerned, then to such other authority, of any such agreement and the lodgment with him of
a
copy thereof the Registrar of Titles or such other authority shall register same upon all instruments of title to the land concerned, and thereafter such agreement shall, while it remains in force, be binding upon every person who had at the time of the making thereof, or who, at any time after the making thereof, becomes. possessed of any estate or interest (legal or equitable) or any easement, right, power, or privilege over, in, or in connection with such land.(6) All contracts or agreements made by the Trust under subsection four or; as the case may be, subsection five of this section shall be effectual in law and shall be binding on the· Trust and all other patties thereto, their successors, executors, administrators, and permitted assigns, as the case may be, and in the case of default in the execution of any such contract or agreement, either by the Trust or by any other party thereto, such actions may be maintained. thereon and such damages and costs recovered by or against the Trus.t or the other parties failing in the execution thereof as might have been maintained and recovered if the same contracts or agreements had been made between private persons only.
(7) The Commissioner or any person authorized in writing by him in that behalf or any member of a Trust or any of its officers or employees authorized in writing on that behalf by the Trust may enter upon any land-
(a) where an emergency exists, forthwith;
(b) in any other case, upon seven days' notice in writing being given to the owner or occupier of that land,
for the purpose of-
(c) examining whether any of the provisions of this Act or any requisition, notice or order issued pursuant to this Act is being complied with or is being contravened;
(d) making any plan or survey or taking levels;
(e) making any inspection or examination;
(f) otherwise in or for carrying out any of the powers, duties or authorities conferred or imposed upon the Trust by or pursuant to this or any other Act.
The power to enter upon any land includes power to-
(g) remain upon that land for such time as is necessary to achieve the purpose of such entry and to place or deposit timber (whether dead or growing at the time . it is removed as first hereinafter referred to), or other vegetation or aquatic plants, or silt, shingle, soil, sand, gravel, stone, rock or other matter or thing whatsoever, removed from the bed,
7938-B
18 s.ll RIVER IMPROVEMENT TRUST ACI' 1940-1977
banks or foreshore of any tidal waters or coastal lake or lagoon, or from the water of the bed or banks of a river or from any adjoining, adjacent or nearby lands, on land adjoining, adjacent to or nearby such place of removal, including, in the case of removal from adjoining, adjacent or nearby lands as aforesaid, on such lands, until it can reasonably be removed or otherwise disposed of by burning (where appropriate, having regard to the nature of the matter or thing in question) or by any other means whatsoever;
(h) take such assistants, vehicles, materials, equipment or things as are necessary to achieve the purpose of such entry.
(8) Where, consequent upon the exercise of a power conferred by subsection (7) of this section, loss or damage results to the owner or occupier of the land in respect whereof such power is exercised, the Trust, or as the case may be, the Commissioner shall pay compensation therefor to the person or persons entitled thereto.
If the amount of such compensation is not agreed upon it shall be determined by the court or tribunal which would be ·authorized under this Act to determine the compensation payable in the event of the Trust or, where the Commissioner is to pay compensation, the Trust constituted in respect of the river improvement area in which the land in question is situated, taking the land concerned.
As amended by Act of 1959, 8 Eliz. 2 No. 27, ss. 4, 10; Act of 1959 (No.2), 8 Eliz. 2 No. 71, s. 4; Act of 1965, No. 34, s. 7; Act of 1968, No. 40, s. 3.
11. Improvement notices. (1) A Trust may by notice in writing (in this section called an " improvement notice ") prohibit an owner of land within the river improvement area for which it is constituted or, if the owner is not the occupier, the occupier of that land from-
( a) doing and executing or continuing to do and execute;
(b) suffering or permitting the doing and executing or suffering or permitting the continuance of the doing and executing of, any act, matter, or thing whatsoever which in the opinion of the Trust-
(c) was the cause of or contributed to any damage already done by flood or cyclone to any bank of any river within the river improvement area; or
(d) is likely to cause or contribute to any such damage in the future.
An improvement notice may be addressed to any number of persons and may be given to one of such persons on behalf of all of such persons and in such event shall be deemed to have been given to all the persons to whom it is addressed.
(2) Where an owner or occupier of land within a river improvement area has done or executed or suffered to be done or executed any act, matter or thing which the Trust constituted for that area is authorized by subsection (1) of this section to prohibit then, notwithstanding that it did not impose such prohibition, the Trust concerned may by notice in
RIVER IMPROVEMENT TRUST Acr 19~1977 s.ll 19 writing (in this section called " an improvement notice ") direct such owner or occupier to take and do such steps and things as the Trust deems necessary to abate, remedy or prevent any damage so specified in subsection (1) of this section already caused, or which in the opinion of the Trust would be caused or contributed to in the future, by the doing of such act, matter or thing (which damage so directed to be abated, remedied or prevented shall be specified in the improvement notice) and to restore the surrounding area to its former condition as nearly as practicable.
Such notice shall specify the time within which the directions specified therein shall be complied with.
(3) A person to whom an improvement notice is given or is deemed to have been given pursuant to this section and every person who subsequent to the giving of such notice becomes the owner or occupier of the land in respect of which it was given whether or not he had or would be deemed in law to have had notice of its existence shall comply in every respect with such notice unless it has ceased to subsist or to operate.
(4) A person who is required by this section to comply with an improvement notice and who fails to comply in every respect with such notice shall be guilty of an offence and liable to a penalty of-
( a) in respect of a first offence, not more than two hundred dollars;
(b) in respect of a second or subsequent such offence (whether committed in respect of non-compliance with the same provision or any other provision of the improvement notice or with any subsequent improvement notice issued pursuant to this section), not more than one thousand dollars.
A person guilty of an offence against this subsection shall, in addition to the penalty in respect thereof, be liable to a daily penalty of not more than twenty dollars for each and every day during which such offence is continued after a conviction therefor.
(5) Where, consequent upon the compliance with an improvement notice, damage results to a cultivated crop growing on the land in respect of which the improvement notice was given, the Trust which gave the notice shall pay compensation therefor to the owner or, as the case may be, occupier of the land concerned.
If the amount of compensation cannot be agreed upon it shall be determined by the court or tribunal which would be authorized under this Act to determine the compensation payable in the event of the Trust taking the land concerned.
(6) If any person being required by this Act to so comply fails to comply with an improvement notice the Trust concerned may do or cause to be done such acts as, in the opinion of the Trust, are necessary to fully comply with such notice and, if it does so, such person shall be liable (and, in the case of more than one such person, jointly and severally liable) to pay to the Trust the expenses reasonably incurred by the Trust in effecting such compliance and such expenses together with
20 s.llA RIVER IMPROVEMENT TRUST ACT 1940-1977
costs may be recovered as a debt at the suit of the Trust in any court of competent jurisdiction or by way of complaint under " T.he Justices Acts, 1886 .to 1964."
The provisions of this subsection or the recovery of any expenses or costs pursuant hereto shall not affect the liability of the person concerned to be prosecuted and penalized for his failure to comply with such a notice.
For the purposes of this subsection the Trust concerned and its employees and agents with such assistants as may be required for the purpose together with all ·tools, equipment and implements reasonably required for the purpose may enter and remain upon, pass and repass over any land.
(7) Upon convicting any person of a failure to comply with an improvement notice a court may, in lieu of or in addition to any penalty for such failure, order such person to pay to the Trust concerned the whole of the expenses proved to the satisfaction of such court to have been reasonably incurred by the Trust in effecting compliance with such notice.
(8) If any person being required by this Act to so comply fails to comply with an improvement notice the Trust concerned may apply to the Supreme Court of Queensland that an order for mandamus be made or an injunction be issued directed2to such person to compel him to comply with such notice or, as the case may be, to refrain from contra- vening such notice and such court may grant any such remedy as it considers just.
For the purposes of an application made pursuant to this subsection the Trust concerned shall be deemed to possess a sufficient interest or right in law to support the grant of such a remedy.
(9) In this section-
(a) "prohibit" includes control and regulate;
(b) " owner " includes the legal personal representative of a deceased owner;
(c) "occupier" includes the legal personal representative of a deceased occupier.
Substituted by Act of 1965, No. 34, s. 8; as amended by Act of 1971, No. 21, s. 3;
Act of 1977, No. 5, s. 7.
Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965.
llA. Notification of existence of improvement notice. (1) As soon as practicable after a Trust has given an improvement notice pursuant to section 11 of this Act the Trust shall furnish notification of the giving of the notice-
( a) in the case of a notice relating to freehold land, to the Registrar of Titles at Brisbane or, as the situation of the land concerned may require, to the Local Deputy Registrar of Titles at
Rockhampton or Townsville;
RiVER IMPROVEMENT TRUST ACT 1946--1977 S. ifA
2i
(b) in the case of a notice relating to land other than freehold land, td the Registrar of Dealings, Department of Lands, at Brisbane or, as the case may require, to any other person charged with the duty of recording in a public register dealings affecting the land.
(2) The registrar or other person to whom sufficient notification of the giving of an improvement notice is furnished pursuant to subsection (1) of this section-
( a) shall, according to the request of the Trust by which the notification is given,-
(i) endorse a memorial o:f the instrument of notification on the copy held in his office of the instrument of title to the land tb which the improvement notice relates or in the register kept of dealings in respect of that hind; or
(ii) make on that copy of such instrument of title or in that register a noting that records the fact of the giving of an improvement notice in respect of the land to which the title or, as the case may be, the register and the improvement notice relate; and
(b) when the memorial is endorsed or the noting is made on a copy of the instrument of title, shall-
. (i) when the other copy of the instrument of title to the land comes into his possession, endorse a like memorial or, as the _ case may be, make a like noting on that copy; and
(ii) Whenever a fresh instrument of title to the whole or part of the land to which the improvement notice relates is issued, endorse a like memorial or, as the case may be, make a like noting on every copy of that instrument unless he has, in the meantime, been notified that the improvement notice has ceased to subsist or to operate and he has complied with subsection (3) of this section so far as he has been able in relation thereto; and
(c) in the case of land that comprises a holding under the Land Act 1962-1970 shall-
7938-C
(i) when a fresh instrument of lease is issued in circumstances specified in subsection (1) of section 284 of that Act, endorse a memorial of the instrument of notification or make a noting that records the fact of the existence of an improvement notice in respect of the land (whichever record was thereto- fore made in respect of the land) in the new register kept of dealings in respect. of t)lat land;
(ii) when a grant of the latid in fee-simple is made, shall transmit to the Registrar of Titles a copy of any subsisting entry in the register kept in the Department of Lands that relates to the improvement notice given in respect of the land, together with the original or a copy of the notification furnished to him of the giving of the improvement notice and the Registrar of Titles shall comply with paragraphs (a) and (b) of this subsection in respect of the deed of grant and any other
22 s.l2 RIVER IMPROVEMENT TRUST ACT 1940-1977
instrument of title to the land or part thereof as if the notification of the giving of the improvement notice had been given to him in the first instance.
(3) As soon as practicable after an improvement notice has ceased to subsist or to operate in respect of any land the Trust by which it was given shall furnish notification of that fact to the registrar or other person to whom notification of the giving of the improvement notice was furnished pursuant to subsection (1) of this section and upon receipt of sufficient notification such registrar or other person-
( a) where a memorial is endorsed or a noting is made on the instrument of title to the land, shall-
(i) in the case of a memorial so endorsed, suitably endorse that memorial on the copy held in his office of the instrument of title and on the other copy thereof when it comes into his possession that the improvement notice to which it relates has ceased to subsist or to operate in respect of the land identified in the notification;
(ii) in the case of a noting so made, cancel the noting as far as it relates to the land identified in the notification on the copy held in his office of the instrument of title and on the other copy thereof when it comes into his possession;
(b) where a memorial is endorsed or a noting is made in a register kept of dealings in respect of the land, shall-
(i) in the case of a memorial so endorsed, suitably endorse that memorial that the improvement notice to which it relates has ceased to subsist or to operate in respect of the land identified in the notification;
(ii) in the case of a noting so made, cancel the noting as far as it relates to the land identified in the notification.
Save as is prescribed by this subsection a memorial endorsed or noting made on an instrument of title or in a register pursuant to subsection (2) of this section shall not be removed or otherwise affected.
(4) A notification given pursuant to subsection (1) or (3) of this section shall identify the land in respect of which the improvement notice was given or, as the case may be, has ceased to subsist or to operate and shall in all respects be in a form acceptable to the Registrar of Titles, the Registrar of Dealings, or other person, to whom it is given.
Inserted by Act of 1971, No. 21, s. 4.
12. Fund of the Trust. (1) The Burdekin River Improvement Trust shall establish in some bank carrying on business at Ayr, and every other Trust shall establish in such bank as the Minister may approve the fol- lowing funds, namely-
(a) A general fund to be called "The [Name of Trust] Fund";
(b) A loan fund in respect of each loan borrowed; and (c) an emergency fund.
