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2013 - 2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon Joseph Ludwig)
Environment Protection and Biodiversity Conservation
Amendment Bill 2014
OUTLINE
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to repeal a sunset provision and enable the Minister to establish an
independent expert panel (expert panel) to conduct an assessment into the potential
environmental impacts of a declared commercial fishing activity and to prohibit the
declared commercial fishing activity while the assessment is undertaken.
The amendments restore to the Minister the powers contained within Chapter 5B of
the EPBC Act, which:
enable the Minister, with the agreement of the Minister administering the
Fisheries Management Act 1991 (Cth) (Fisheries Minister), to declare a
commercial fishing activity to be a `declared commercial fishing activity' on
an interim basis (interim declaration) if both Ministers agree that:
o there is uncertainty about the environmental impacts of the commercial
fishing activity;
o it is appropriate to consult with fishing concession holders who consider
themselves to be detrimentally affected by the making of a final
declaration for the same fishing activity (declaration affected person);
and
o the declared commercial fishing activity should be prohibited while
consultation occurs;
enable the Minister, with the agreement of the Fisheries Minister, to declare a
commercial fishing activity to be a declared commercial fishing activity for a
period of no longer than 24 months (final declaration) if both Ministers
agree that:
o there is uncertainty about the environmental impacts of the commercial
fishing activity;
o it is appropriate to establish an expert panel to conduct an assessment of
the commercial fishing activity; and
o the declared commercial fishing activity should be prohibited while the
expert panel conducts its assessment of the commercial fishing activity;
ensure procedural fairness by requiring that the Minister must consider the
written submissions of declaration affected persons before making a final
declaration. Further, the Minister cannot make a final declaration for a
commercial fishing activity that has not been the subject of an interim
declaration;
create civil penalty and offence provisions for engaging in a declared
commercial fishing activity;
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provide for the establishment of an expert panel to conduct an assessment of
the potential environmental impacts of the declared commercial fishing
activity, as specified in its terms of reference, and report to the Minister; and
provide for the publication of the report of the expert panel and the tabling of
the report in Parliament.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides that the Act may be cited as the Environment Protection
and Biodiversity Conservation Amendment Act 2014 (the Amendment Act).
Clause 2: Commencement
2. The Amendment Act will commence on the day it receives Royal Assent.
Clause 3: Schedules
3. This clause provides for amendments to the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) specified in the
Schedule.
Schedule 1 - Environment Protection and Biodiversity Conservation Act 1999
Item 1 - Division 4 of Part 15B
Repeal of the Division
4. This section removes the sunset provision of Part 15B. New declarations will be
able to be made from the day of the Act's commencement.
5. This will not affect any existing declarations or assessments. Existing
declarations will remain in force until they expire or are revoked in accordance
with the provisions of Chapter 5B and any assessments underway in respect of
the impacts of a declared commercial fishing will continue.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Environment Protection and Biodiversity Conservation Amendment Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to repeal a sunset clause and thereby provide for the Minister to
establish an independent expert panel (expert panel) to conduct an assessment into the
potential environmental impacts of a declared commercial fishing activity and to
prohibit the declared commercial fishing activity while the assessment is undertaken.
Human rights implications
The Bill engages the right to the presumption of innocence, and the right to a fair
hearing.
The Bill will restore the criminal offence in respect of people who engage in `declared
commercial fishing activities' in the Commonwealth marine area. Strict liability
applies to the circumstance that an action is taken in a Commonwealth marine area
which is consistent with similar offence provisions in the EPBC Act dealing with the
Commonwealth marine area (see for example in Part 3 and Part 13).
It is appropriate that strict liability apply to the Commonwealth marine area element of
the offence as it may be difficult to prove that a person knew they were in a
Commonwealth marine area (or were reckless to that fact) making the offence difficult
to prosecute and accordingly undermining the deterrent effect of the provisions. The
application of strict liability is also justifiable on the basis that a defendant can
reasonably be expected, because of his or her professional involvement in the fishing
industry, to know the requirements of the law. Although the penalty for the offence is
higher than those applicable to most other offences in the EPBC Act, it is identical to
the offences in Part 3 of the EPBC Act and is at an appropriate level to deter people
from engaging in declared commercial fishing activities.
The imposition of strict liability still allows a defendant to raise a defence of honest
and reasonable mistake. This ensures that a person cannot be held liable if he or she
had an honest and reasonable belief that they were complying with relevant
obligations. Although it is possible that this defence may not cover a situation where a
person is on a prescribed vessel which for some reason such as engine failure, for
example, enters a Commonwealth marine area, a ministerial declaration will generally
specify the commercial fishing activity by reference to a number of criteria (such as
the type of vessel and the method of processing, carrying or transhipping fish), rather
than a single characteristic. This will mitigate the possibility of a declaration applying
arbitrarily to a particular operator who is not intended to be caught by a declaration.
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Given any declaration will only be made in relation to a particular declared
commercial fishing activity, it is reasonable to expect that any defendant will be
cognizant of their legal obligations and are unlikely to inadvertently enter the
Commonwealth marine area.
The application of strict liability is a proportionate limitation on the right to the
presumption of innocence because of the public interest in ensuring the sustainable use
of resources in the Commonwealth marine area.
The Minister is not required to consult before making an interim declaration because
the uncertain environmental impacts of the particular activity warrant an immediate
ban in order to avoid any environmental damage. However, after making an initial
declaration, section 390SE obliges the Minister to consult with `declaration affected
persons' and consider any submissions provided before making a final declaration. In
addition, the commercial fishing activity that is the subject of a final declaration must
be the same commercial fishing activity that was the subject of an interim declaration.
This means that the Minister must undertake further consultation if he or she proposes
to make a declaration in relation to fishing activity different to that specified in an
interim declaration. The validity of an interim or final declaration could also be
challenged in the courts. Therefore appropriate review rights are available to affected
individuals seeking to challenge a declaration or any decision that may flow from a
declaration.
The strict liability offence in the Bill has been drafted consistently with the principles
set out in A Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers developed by the Criminal Justice Division of the Attorney-
General's Department.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate to the objective of
preventing people from engaging in declared commercial fishing activities that may
have uncertain environmental impacts until those impacts are assessed.
Senator the Hon Joseph Ludwig
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