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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
GREAT BARRIER REEF MARINE PARK AND OTHER LEGISLATION
AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment, Heritage and the Arts,
the Honourable Peter Garrett AM MP)
Page 1 of 73
GREAT BARRIER REEF MARINE PARK AND OTHER
LEGISLATION AMENDMENT BILL 2008
OVERVIEW
The purpose of the Bill is to establish a modern and robust regulatory framework that
provides the capability for the efficient and effective protection and management of the Great
Barrier Reef into the future.
The Bill will:
· establish a modern framework for administration of the Great Barrier Reef Marine
Park Act 1975 (GBRMP Act) and management of the Great Barrier Reef Marine Park
(Marine Park) that is aligned, integrated and not duplicative with the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) and other legislation;
· put in place robust and streamlined environmental impact assessment and permitting
processes;
· enhance capability for investigation and evidence collection;
· provide a wider range of enforcement options allowing for a more tailored and
targeted approach to enforcement;
· enhance deterrence and encourage responsible use of the Marine Park; and
· establish new emergency management powers.
The changes proposed by the Bill address findings of a 2006 review of the GBRMP Act.
That review found that the GBRMP Act has served its purpose well over the past 30 years,
but needs to be updated and better integrated with other legislation in order to provide an
effective framework for protection and management of the Great Barrier Reef into the future.
There has been a significant change in the scale, scope and nature of the challenges in
securing the long-term protection of the Great Barrier Reef since the inception of the
GBRMP Act in 1975. The focus of the Act was initially on establishing the Marine Park, and
developing administrative and institutional arrangements for management. The Marine Park
now covers an area of around 344 400 square kilometres and is intensively used for a wide
variety of purposes, including tourism, fishing, research, public enjoyment and defence
training. The Marine Park and associated zoning plan provide a strong framework for
protecting the Great Barrier Reef and ensuring use is ecologically sustainable. A strong,
modern regulatory system is required to ensure `on ground' capability to efficiently and
effectively administer and deliver that framework.
The Bill is divided into separate schedules dealing with particular topics, as follows:
· Objects and Applications
· Matters related to the Great Barrier Reef Marine Park Authority
· Proclaiming the Marine Park, Zoning Plans and Plans of Management
· Environmental Impact Assessments
· Investigation and Enforcement
· Offences and Civil Penalties
Each schedule is discussed below, first through a general outline, then by notes on individual
clauses.
Page 2 of 73
FINANCIAL IMPACT STATEMENT
The Bill will have no financial impact.
ABBREVIATIONS
The following abbreviations are used in this Explanatory Memorandum:
AAT - Administrative Appeals Tribunal
Authority - the Great Barrier Reef Marine Park Authority
EEZ - Exclusive Economic Zone
EMC - Environmental Management Charge (see GBRMP Act Part VA)
EPBC Act - Environment Protection and Biodiversity Conservation Act 1999
GBRMP Act - Great Barrier Reef Marine Park Act 1975
GBRMP Regulations - Great Barrier Reef Marine Park Regulations 1983
LI Act - Legislative Instruments Act 2003
Marine Park - refers to the Great Barrier Reef Marine Park
NES - refers to matters of "National Environmental Significance", established by the
EPBC Act.
PRELIMINARY PROVISIONS
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short title
1. This clause provides that the short title by which the Act may be cited is the "Great
Barrier Reef Marine Park and Other Legislation Amendment Act 2008".
Clause 2 - Commencement
2. This clause provides that the Act, with the exceptions of schedules 4, 5 and 6 will
commence the day after the Act receives the Royal Assent. Schedule 4, 5 and 6 will
commence on proclamation, or at the end of 12 months from the day the Act receives
the Royal Assent. The period of up to 12 months before commencement is necessary as
implementation of the changes requires substantial associated work, including:
· the development of extensive regulation amendments;
· the development of administrative arrangements related to the administration of
both the GBRMP Act and the EPBC Act;
· engagement with stakeholders in the context of the regulation amendments and
development of administrative arrangements;
· education and training of those administering and performing functions under the
Act, including persons appointed as inspectors; and
· education of Marine Park users.
Page 3 of 73
Clause 3 - Schedule(s)
3. This clause provides that the amendments set out in the schedules to the Act have
effect.
SCHEDULE 1 - OBJECTS AND APPLICATION
GENERAL OUTLINE
Schedule 1 establishes a new objects section in the GBRMP Act. The current objects
(section 5) are out of date. They are a product of the time the Act was first drafted, when the
focus was on establishing a Marine Park, the Great Barrier Reef had not yet been declared a
World Heritage Area and concepts such as ecological sustainability had not yet emerged and
been adopted.
The new objects section provides a modern, future-oriented focus to guide administration of
the Act and management of the Marine Park. It identifies long-term protection of the
environment, biodiversity and heritage values of the Great Barrier Reef as the primary object
of the Act, with subsidiary objects including allowing for ecologically sustainable use of the
Great Barrier Reef.
The new objects will be central to administration of the Act and management of the Marine
Park. The Authority will be required to have regard to, and seek to act consistently with, the
Act's new objects, as well as the principles of ecologically sustainable use (as defined by this
Schedule) and the protection of the World Heritage values of the Great Barrier Reef.
In terms of application matters, the Schedule removes a redundant provision relating to the
constitutional basis for the GBRMP Act and establishes a provision clarifying the
geographical application of the GBRMP Act.
NOTES ON INDIVIDUAL CLAUSES
Great Barrier Reef Marine Park Act 1975
Item 1 - New Objects section
4. This item establishes a new section defining the objects of the GBRMP Act. The new
section identifies the long-term protection and conservation of the environment,
biodiversity and heritage values of the Great Barrier Reef Region as the primary object
of the Act. Subject to that object, the following subsidiary objects apply:
· allowing for ecologically sustainable use of the Great Barrier Reef Region;
· encouraging engagement by stakeholders and communities in protection and
management of the Great Barrier Reef Region; and
· assisting in meeting Australia's international responsibilities relating to the
environment and the protection of world heritage.
5. The current object of the Act, identified in section 5, is repealed by item 20.
6. The item also inserts a subsection describing how the Act seeks to achieve its objects.
This is provided to assist understanding of the Act.
Page 4 of 73
Items 2-18 & 23 - Definitions
7. These items define a number of key terms used in this and other Schedules of the Bill
and remove redundant definitions. Where appropriate, terms are defined by reference
to, or consistently with the EPBC Act and other relevant legislation.
8. Item 12 defines the "precautionary principle" consistently with its meaning under the
EPBC Act.
9. Item 16 defines "Traditional Owner" consistently with the GBRMP Regulations and
zoning plan.
10. Item 18 inserts a definition of "ecologically sustainable use". The term is used in the
new objects of the Act and is central to administration of the Act. The term is defined
consistently with the EPBC Act, but also recognises the specific context of the
GBRMP Act - in particular, that it applies to a particular area (the Great Barrier Reef)
where the primary management objective is long term protection, rather than being of
general application.
11. Item 18 also inserts a definition of the "principles of ecologically sustainable use". The
principles specified reflect those in the EPBC Act (section 3A). The principles will be a
key factor guiding administration of the Act and management of the Marine Park.
Items 19, 20, 23 & 24 - Jurisdictional application of the Act
12. Item 20 repeals current section 5, which sets out the objects of the Act. Item 1
establishes a new objects section. The current section 5 also includes a constitutional
"reading down" provision. This was in place given constitutional uncertainties at the
time the GBRMP Act was first enacted (1975). Since that time, the constitutional basis
for the GBRMP Act has become clearer as case law has developed. The provision is no
longer necessary.
13. Item 20 inserts a new section 5 clarifying the jurisdictional application of the
GBRMP Act, in particular, that the Act applies to everyone (including foreign
nationals), within Australia, its exclusive economic zone (EEZ), continental shelf and
external territories, but does not apply to anyone (Australian or foreign) outside
Australia, its EEZ, continental shelf and external territories. Existing provisions relating
to the same subject (subsections 4(2), 65(1)) are repealed by items 19, 23 and 24 and
are consolidated in the new section 5.
Items 21 & 22 - Factors guiding administration of the Act and management of the
Marine Park
14. Item 21 provides that, in managing the Marine Park and performing its other functions
under the GBRMP Act, the Authority must have regard to, and seek to act in a way that
is consistent with:
· the objects of the Act;
· the principles of ecologically sustainable use; and
· the protection of the World Heritage values of the Great Barrier Reef World
Heritage Area.
Page 5 of 73
This will make the above matters central to administration of the GBRMP Act and
management of the Marine Park.
15. Item 21 also provides that the Authority may prepare and publish plans and policies
about the way it intends to manage the Marine Park and perform its functions, as well
as its interpretation of the application of the Act, regulations or a zoning plan. Such
plans and policies are intended to provide guidance to Marine Park users and other
interested persons on how the Authority intends to apply and administer the Act in
various circumstances - for example, its planned approach to managing protected
species, or administration of permitting requirements. Plans and policies are not legally
binding and do not impose obligations on the Authority, Marine Park users or other
persons. Accordingly, the item clarifies that the plans and policies are not legislative
instruments. This is declaratory of the law and included to assist readers - the plans and
policies are not legislative in nature within the meaning of section 5 of the Legislative
Instruments Act 2003 (LI Act).
16. Item 22 repeals section 39Z. That section requires the Authority, in preparing plans of
management under Part VB of the Act, to have regard to the precautionary principle
and the protection of the World Heritage values of the Marine Park. Item 21 establishes
equivalent requirements of general application, making section 39Z redundant.
Item 25 - Application of Legislative Instruments Act subsection 14(2)
17. This item provides that, despite subsection 14(2) of the LI Act, regulations made under
the GBRMP Act may apply, adopt or incorporate matters contained in other
instruments as in force from time to time (rather than only at a particular point in time).
18. Regulations made under the GBRMP Act "call up" various statutory instruments made
under Queensland legislation. Most notably, fishing is permitted in certain zones of the
Marine Park provided it is done in accordance with Queensland Government fisheries
legislation and management plans. Currently, whenever Queensland amends its
legislation or management plans, the regulations under the GBRMP Act must also be
amended. The change proposed by this item will avoid this need by allowing the
GBRMP Regulations to require compliance with Queensland legislation and
management plans as in force from time to time. This capacity provides for clearer and
more efficient regulation, and reflects jurisdictional responsibilities - in particular, that
Queensland is responsible for the management of fisheries and the Commonwealth
responsible for managing the Marine Park (and as a part of that, use of the Marine
Park).
Great Barrier Reef Marine Park (Environmental Management Charge-Excise) Act 1993
Item 26 - Updating a cross reference
19. This item is a technical change. It repeals and replaces section 3 of the Great Barrier
Reef Marine Park (Environmental Management Charge - Excise) Act 1975 to update a
cross-reference to provisions of the GBRMP Act amended by items 19 & 20.
Page 6 of 73
Great Barrier Reef Marine Park (Environmental Management Charge-General) Act 1993
Item 27 - Updating a cross reference
20. This item is a technical change. It repeals and replaces section 3 of the Great Barrier
Reef Marine Park (Environmental Management Charge - General) Act 1975 to update
a cross-reference to provisions of the GBRMP Act amended by items 19 & 20.
SCHEDULE 2 - MATTERS RELATING TO THE GREAT BARRIER
REEF MARINE PARK AUTHORITY
GENERAL OUTLINE
Schedule 2 makes two changes to the GBRMP Act related to the Great Barrier Reef Marine
Park Authority (the Authority).
The first establishes a requirement for one member of the Authority to be an Indigenous
person with knowledge of, or experience concerning, Indigenous issues relating to the
Marine Park. There are more than 70 Traditional Owner groups along the coast from
Bundaberg to the Torres Strait who have a long and continuing relationship with the Great
Barrier Reef. The knowledge and perspective of persons with expertise related to traditional
use of the Marine Park and indigenous issues more generally is of particular value in
achieving ecologically sustainable management of the Great Barrier Reef.
The second change made by the schedule establishes a capacity for the Authority to conduct
business outside of formal meetings, subject to an appropriate governance framework. This
allows for more efficient and responsive decision-making by the Authority, which has a large
number of statutory powers and functions vested in it.
NOTES ON INDIVIDUAL CLAUSES
Great Barrier Reef Marine Park Act 1975
Item 1 - Indigenous expertise on the Authority
21. This item inserts a requirement for one member of the Great Barrier Reef Marine Park
Authority to be an Indigenous person with knowledge of, or experience concerning,
Indigenous issues relating to the Marine Park. As with current arrangements, all
members of the Authority must have qualifications or extensive experience in a field
related to the functions of the Authority.
Items 2-4 - Decisions outside of meetings
22. Item 2 inserts a note drawing attention to the Acts Interpretation Act 1901 section 33B,
which allows statutory authorities to hold meetings via telephone, videoconference and
other such forms of communication. The note is inserted for information.
Page 7 of 73
23. Item 3 amends subsection 17(8) as a consequence of item 4. Subsection 17(8) currently
provides that, if only two Authority members attend a meeting, and a matter is tied, the
matter must be deferred until the next meeting at which at least three members are
present. Item 3 allows such matters to also be reconsidered outside of a meeting, in
accordance with the provisions inserted by item 4.
24. Item 4 inserts a new provision empowering the Authority to make decisions outside of
meetings. This capacity is subject to sound governance requirements. Reasonable steps
(the exact nature of which must be agreed by the Authority) must be taken to seek the
views of all members in considering matters outside of meetings. If not all members are
able to express their view, and the matter is tied, the matter cannot be carried. Members
with conflicts of interest may not vote.
SCHEDULE 3 - PROCLAIMING THE MARINE PARK, ZONING
PLANS AND PLANS OF MANAGEMENT
GENERAL OUTLINE
Schedule 3 makes changes related to establishment of the Marine Park, and the development
of zoning plans and plans of management.
In large part, these changes are directed at clarifying and modernising relevant provisions,
and do not make substantive changes to existing arrangements. Most notably, provisions
relating to the development of zoning plans are restructured to clarify the process that must
be followed and requirements that must be met in developing zoning. There are also a
number of changes designed to clarify the application of the Legislative Instruments Act 2003
(LI Act) to proclamations establishing the Marine Park, zoning plans and plans of
management - all of which are legislative instruments for the purposes of that Act.
The key substantive changes made by the schedule are as follows:
· The introduction of a requirement for the Authority to publicly consult on a proposal
to proclaim an area as a part of the Marine Park, or to remove an area from the
Marine Park by way of proclamation. This requirement is designed to enhance
stakeholder and community engagement in management of the Great Barrier Reef and
provides greater alignment with requirements for the proclamation of Commonwealth
Reserves under the EPBC Act.
· The matters that must be considered in developing zoning plans and plans of
management are updated, most notably, to build in better integration with relevant
Commonwealth and Queensland legislation. The Authority will, for example, be
required to consider relevant plans related to protected species prepared under the
EPBC Act and Queensland legislation in preparing zoning plans and plans of
management. Similarly, the Authority will be required to have regard to the
Australian World Heritage Management Principles specified in the
EPBC Regulations.
· The objects applying to the development of zoning plans are updated to recognise as
objects (in addition to the current objects):
- protection of the ecosystem of the Great Barrier Reef, its biodiversity and World
Heritage values;
Page 8 of 73
- protection of areas that are of high conservation value;
- managing competing usage demands on the Marine Park;
- ensuring use of the Marine Park is ecologically sustainable; and
- providing for ecologically sustainable traditional use of the Great Barrier Reef.
NOTES ON INDIVIDUAL CLAUSES
Part 1 - Amendments to the Environment Protection and Biodiversity
Conservation Act 1999
Items 1 &2 - Application of EPBC Act World and National Heritage management
planning requirements to the Great Barrier Reef Marine Park
25. These items provide that it is not necessary to prepare and implement:
· a World Heritage Management Plan under section 321 of the EPBC Act in relation
to so much of a World Heritage Area that is in the Great Barrier Reef Marine Park;
and
· a National Heritage Management Plan under section 324X of the EPBC Act in
relation to so much of a National Heritage Area that is in the Great Barrier Reef
Marine Park.
26. The Great Barrier Reef is both a World and National Heritage Area. The areas have
identical boundaries and values. The Marine Park covers around 98 per cent of the
World and National Heritage Area, the other two per cent being Queensland islands and
internal waters. The GBRMP Act establishes the Great Barrier Reef Marine Park
Authority to manage and advise government in relation to care and development of the
Marine Park. In doing so, the Authority must have regard to, and act consistently with,
the protection of World Heritage values (Schedule 1, item 21). Zoning plans are the key
mechanism through which the Marine Park is managed. The Authority must, in
preparing zoning plans, have regard to the Australian World Heritage Management
Principles, National Heritage Management Principles and National Heritage values of
the Great Barrier Reef, as specified under and pursuant to, the EPBC Act (see item 17).
27. In light of these comprehensive and robust management arrangements in place for the
Great Barrier Reef, an additional requirement for a World Heritage management plan
and a National Heritage management plan to be prepared under the EPBC Act is
unnecessary and of little value in terms of management outcomes. An analogous
approach is taken to Commonwealth reserves constituted over World and National
Heritage Areas, such as Kakadu. World and National Heritage management plans are
not required for such areas (see subsections 316(6) and s324T of the EPBC Act), as a
reserve management plan is prepared, taking account of world and national heritage
values and management principles.
Page 9 of 73
Part 2 - Amendments to the Great Barrier Reef Marine Park Act 1975
Items 3 & 4 - Updating cross references
28. These items are technical changes that insert and update cross references. Item 3 inserts
a cross reference in the interpretation section (section 3) to the definition given in
section 39V of "community group having a special interest". Item 4 updates a cross
reference in light of other amendments in this schedule.
Item 5 & 8 - Public Notice requirements
29. This item establishes a definition of "public notice". In so doing, it establishes
requirements for the issuing of a public notice - at a minimum, notices must be
published in the Gazette, in a newspaper circulating generally in Queensland and on the
Authority's website. This later publication requirement is additional to existing
requirements. Public notice requirements apply to the making of proclamations creating
or amending the Marine Park, zoning plans and plans of management.
Item 6 - Definition of zone
30. This item clarifies that a "zone" can include an area that is created or identified by a
zoning plan, but is not necessarily called a "zone". The item is intended to clarify that
"areas", such as "designated areas" identified by the Great Barrier Reef Marine Park
Zoning Plan 2003, are "zones" for the purposes of the Act.
Items 7 & 9 - Updating cross references
31. These items are technical changes. They amend cross references as a consequence of
the creation of a new division within Part V of the Act.
Item 10 - New Division
32. This item establishes a new division of Part V, titled "Great Barrier Reef Marine Park".
The division encompasses the existing section 31 (as amended by the Bill), which deals
with the creation, amendment and revocation of the Marine Park.
Items 11 & 13 - Proclaiming the Marine Park: Clarifying application of the LI Act
33. Subsection 31(1) empowers the making of proclamations declaring an area of the Great
Barrier Reef Region to be a part of the Great Barrier Reef Marine Park. Subsection
31(3) empowers the making of proclamations revoking or amending a previous
proclamation of an area as a part of the Marine Park. Items 11 and 13 insert notes
clarifying that such proclamations are legislative instruments for the purposes of the
LI Act but are not subject to the disallowance or sunsetting requirements of that Act.
This is declaratory of the law and is included to assist readers. Subsections 44(2) and
54(2) of the LI Act provide, respectively, exemptions from disallowance and sunsetting
provisions.
Page 10 of 73
Item 12 & 14 - Proclaiming the Marine Park: Procedural requirements
34. Item 12 provides that the Governor-General must consider a report prepared by the
Authority prior to making a proclamation under section 31 (declaring an area to be a
part of the Marine Park or excising areas from the Marine Park). Such a requirement is
currently only in place in relation to a proclamation declaring an area to be a part of the
Marine Park.
35. Item 14 inserts an additional requirement relating to proclamations made under
section 31 (declaring an area to be a part of the Marine Park or excising areas from the
Marine Park). The item requires the Authority to publicly consult on a proposed
proclamation. Comments made in the context of consultation are reported to the
Governor-General, who is responsible for making the proclamation.
Items 15-29 - Clarifying and modernising zoning plan provisions
36. These items repeal sections 32 and 33 and amend other provisions related to the making
of zoning plans. The amendments establish a new division dealing with the
development, amendment and revocation of zoning plans, clearly setting out applicable
processes and requirements. The amendments, in large part, simply restructure and
separate out the different requirements applying to the development or zoning plans.
Actual processes and requirements are unchanged, with the exceptions discussed
below.
Objects of zoning (Item 15)
37. Subsection 32(7) currently sets out the objects that must be considered in preparing a
zoning plan. The current item updates those objects to provide greater clarity, establish
links to the updated objects and focus of the GBRMP Act (Schedule 1, item 1) and
recognise key considerations in zoning development, such as ecological sustainability.
The item establishes a stand-alone section dealing with the objects of zoning plans,
adding to the current objects the following:
· protection of the ecosystem of the Great Barrier Reef, its biodiversity and World
Heritage values;
· protection of areas that are of high conservation value;
· managing competing usage demands on the Marine Park;
· ensuring use of the Marine Park is ecologically sustainable; and
· providing for ecologically sustainable traditional use of the Great Barrier Reef.
Application of IUCN protected area categories (Items 15 & 17)
38. Items 15 and 17 provide that a zoning plan must designate, for each zone or part of a
zone, an IUCN category. In designating an IUCN category, the Authority must have
regard to the purposes for which the zone may be entered or used, and the Australian
Reserve Management Principles, as set out in the EPBC Regulations.
39. IUCN categories relate to protected areas. They categorise protected areas according to
applicable management categories. The approach is established internationally and
applied to Commonwealth reserves established under the EPBC Act. The items apply
the approach to the Marine Park.
Page 11 of 73
40. As with current arrangements, it will be the zoning plan that defines what activities
(legally) may and may not be undertaken in particular zones. Designation of IUCN
categories is done as a means of classification and to facilitate reporting. It is not
intended to itself affect or determine the permitted uses of particular zones and areas of
the Park. It is also not intended that an IUCN category and the associated management
principles would in any way qualify or provide a basis for "reading down" the
provisions of the zoning plan.
Considerations in developing zoning (Item 17)
41. Item 17 inserts a number of matters that must be considered in the development of
zoning. The inserted requirements are designed to improve integration and alignment
with the EPBC Act and relevant Queensland legislation. The provisions require the
Authority to have regard to relevant plans, principles and values related to protected
species and protected areas, for example, recovery plans for threatened species, the
Australian World Heritage Management Principles and the national heritage values
identified for the Great Barrier Reef National Heritage Area.
42. Item 17 also requires that the Minister, in determining whether to accept a zoning plan
developed by the Authority, be satisfied that the plan is consistent with relevant
international obligations of Australia. This is designed to ensure Australia's compliance
with international law, for example, the United Nations Convention on the Law of the
Sea, which includes provisions relating to the regulation of activities in the territorial
sea and exclusive economic zone (parts of which the Marine Park is constituted over).
Clarification of application of the LI Act
43. The items clarify the application of the LI Act to zoning plans. The items provide that
zoning plans made under section 32, amended under subsection 37(2) or section 37A or
revoked under subsection 37(4) are legislative instruments for the purposes of the
LI Act, but are exempt from the sunsetting and disallowance requirements of that Act.
With one exception (discussed below), this is declaratory of the law, included to assist
readers. Exemptions are already in place under the LI Act.
44. Zoning plans (and amendments and revocations of zoning plans) are currently exempt
from the disallowance provisions of the LI Act by virtue of item 40 of the table in
subsection 44(2) of that Act. The exemption is provided on the basis that the
GBRMP Act provides for disallowance of zoning plans. Application of LI Act
disallowance requirements would therefore be duplicative. It is considered appropriate
to retain disallowance provisions in the GBRMP Act, rather than relying on those of the
LI Act. The development and amendment of zoning plans attracts significant public
interest and involvement. Having the complete process for the development of zoning
plans clearly articulated on the face of the GBRMP Act is important in ensuring public
understanding of and confidence in the process. This, in turn, is important for the
effective management of the Marine Park and engagement of interested persons in the
development of zoning.
45. The Bill amends the disallowance provisions of the GBRMP Act to ensure consistency
with those of the LI Act, so as to avoid the risk of parliamentarians being mistaken as to
Page 12 of 73
the periods within which notice of a motion to disallow and resolution of such a motion
must occur.
46. Zoning Plans, amendments to zoning plans and a revocation of a zoning plan are
exempted from the sunsetting provisions of the LI Act by item 22 of the table in
subsection 54(2), with the exception of minor amendments to zoning plans made
pursuant to section 37A. Minor amendments are not captured by the exemption as the
capacity for such amendments was introduced in July 2007, and consequential
amendments to the LI Act were not made at the time. The items therefore establish an
exemption.
47. Zoning plans are the primary basis for management of the Marine Park. They are
subject to ongoing assessment and evaluation. Section 54 of the GBRMP Act requires
the five-yearly preparation of a "Great Barrier Reef Outlook Report". Reports must
include an assessment of measures to protect and manage the Great Barrier Reef, which
includes zoning plans. Zoning plans may be revoked (and replaced) or amended only
every seven years (at a minimum). This is designed to ensure there is sufficient time for
plans to become established, social and biological systems to respond and the effects to
be monitored and understood. From the above, there are sufficient measures for
ensuring zoning plans are periodically reviewed to ensure they remain necessary and
adapted to purpose. Application of LI Act sunsetting provisions is therefore considered
unnecessary.
Item 30 - New division: "Offences etc"
48. This item inserts a new Division in the GBRMP Act titled "Offences etc". The
provision is inserted as Schedules 4, 5 and 6 of the Bill, which deal with offences and
related matters, commence on proclamation, whereas the provisions of this Schedule
commence the day after the Royal Assent. Insertion of the Division by this Schedule
will serve to group sections 38-39 (which deal with offences and related matters) until
the amendments contained in Schedules 4, 5 and 6 commence, thereby ensuring
offences and related matters are not inappropriately included in a Division dealing with
zoning plans.
Items 31, 32, 34-36, 38-41, 44 - Plans of management: public notice requirements
49. These items are a consequence of the inclusion in the GBRMP Act of a definition of
"public notice" of general applicability (Schedule 3, item 5). The items update
provisions relating to public notices to reflect this change. The items also improve
consistency of expression in the Act by aligning the language of provisions requiring
consultation on a proposal to prepare a Plan of Management with the language of
provisions requiring consultation on a proposal to prepare a zoning plan.
Item 33 - Contents of plans of management
50. This item clarifies that a plan of management may comprise two parts. The first may set
out policies and strategies concerning how the Authority intends to manage the matters
that are the subject of the plan (e.g. a particular area or species). The second part may
set out "enforcement provisions" prohibiting or regulating activities, as currently
provided for by subsections 39ZD(5)-(8).
Page 13 of 73
Item 37 - Considerations in preparing plans of management
51. This item establishes a new provision requiring the Authority, in preparing a plan of
management, to have regard to any relevant key threatening processes, critical habitat,
approved conservation advice, recovery plan, threat abatement plan or wildlife
conservation plan, as identified or established under the EPBC Act. The item also
requires that a plan of management that relates to a threatened species or ecological
community listed under the EPBC Act not be inconsistent with any recovery plan or
threat abatement plan in place for the species or community. These measures are
designed to improve integration between EPBC Act measures for the protection and
recovery of threatened species and ecological communities and management measures
under the GBRMP Act.
Items 42, 43, 45 &46 - Plans of management: clarifying application of the LI Act
52. These items clarify the application of the LI Act to plans of management by explicitly
recognising, in the GBRMP Act, that plans, amendments to plans and revocations of
plans are legislative instruments for the purposes of the LI Act.
53. The items include notes that plans of management (and amendments and revocations of
the same) are exempt from the sunsetting provisions of the LI Act. This is declaratory
of the law, provided for clarity. Such exemptions are already provided by item 22 of the
table in subsection 54(2) of the LI Act.
54. Item 42 repeals provisions relating to commencement of plans of management, as the
LI Act provides for commencement. Item 43 amends provisions relating to
commencement of amendments to plans of management for the same reason.
Item 47 - Plans of management binding on the Authority
55. This item provides that the Authority must perform its functions and exercise its powers
consistently with relevant plans of management. This clarifies the intended nature of
plans of management, which include documented approaches and strategies for
management of the Marine Park (or particular areas within or matters relevant to the
Marine Park) by the Authority. The item also repeals section 39ZI, which is a
redundant transitional provision.
Part 3 - Amendment of the Legislative Instruments Act 2003
Item 48 - Subsection 54(2) (table item 22)
56. This item amends the LI Act to remove the exemption from the sunsetting provisions of
that Act currently in place in relation to zoning plans made under section 32 and
amended or revoked under section 37 of the GBRMP Act. Items 17 and 23 relocate
these exemptions into the GBRMP Act.
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Part 4 - Transitional, application and saving provisions
Item 49 - Zoning plans under section 32 of the Great Barrier Reef Marine Park Act 1975
57. This item provides that zoning plans made under section 32 of the GBRMP Act and in
force at the time of commencement continue in force despite the amendments in this
Schedule.
58. The item also allows for the IUCN categories to be designated to zones in the existing
zoning plan by way of an amendment to the plan. The amendment must be done in
accordance with section 37A, which requires Ministerial approval and tabling in
Parliament, where it may be subject to a motion of disallowance.
Items 50, 51 and 52 - Plans of management: transitional provisions
59. Item 49 ensures that plans of management in force prior to commencement of the
schedule continue to operate unaffected by the amendments of this Schedule.
60. Item 50 provides that, where a plan of management was under preparation at the time
of commencement of this Schedule, and a notice had been issued under section 39ZE in
relation to the plan, the provisions of Part VB prior to commencement of this Schedule
continue to apply in relation to that plan.
61. Item 51 provides that where a plan of management was under preparation at the time of
commencement of the schedule, but a notice had not been issued under section 39ZE in
relation to the plan, the new provisions relating to the preparation of plans established
by this Schedule apply.
SCHEDULE 4 - ENVIRONMENTAL IMPACT ASSESSMENTS
GENERAL OUTLINE
Schedule 4 contains amendments related to environmental impact assessment and approval.
The amendments establish the EPBC Act as the primary basis for environmental impact
assessment and approval of actions in the Marine Park having a significant impact on the
environment. This is done in order to remove currently circuitous and at times duplicative
requirements, and apply the best practice environmental impact assessment processes of the
EPBC Act more consistently to environmental matters regulated by the Commonwealth.
Key aspects of the Schedule include:
· Establishment of the Great Barrier Reef Marine Park as a "matter of national
environmental significance" under the EPBC Act. As a consequence, the
environmental impact assessment and approval requirements of the EPBC Act will
apply where an action in the Marine Park has, will have or is likely to have a
significant impact on the environment; and where an action outside the Marine Park
has, will have or is likely to have a significant impact on the environment in the
Marine Park.
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· Provisions to establish a single, integrated environmental impact assessment process
under the EPBC Act, used for the purposes of both approval requirements under the
EPBC Act and permission requirements under the GBRMP Act.
· Provisions enabling the Great Barrier Reef Marine Park Authority to provide the
"shopfront" for the administration of environmental impact assessment and approval
requirements in relation to actions relevant to the Marine Park.
· Transitional provisions to ensure the new assessment and approval requirements do
not apply retrospectively and, for actions being assessed at the time the amendments
commence, the rules are not changed part way through that assessment.
NOTES ON INDIVIDUAL CLAUSES
Part 1 - Amendments to the Environment Protection and Biodiversity Conservation Act
1999
Item 1 - Section 11 (simplified outline)
62. This item is a technical change. It amends the outline of Chapter 2 of the EPBC Act
provided by section 11. It is a consequence of amendments to section 43 of the Act (see
item 10).
Item 2 - Establishing the Great Barrier Reef Marine Park as a matter of National
Environmental Significance
63. This item establishes the Great Barrier Reef Marine Park as a matter of National
Environmental Significance (NES). This ensures that EPBC Act assessment and
approval requirements apply in appropriate circumstances - namely, in relation to
actions (or parts thereof) within the Marine Park that have, will have or are likely to
have a significant impact on the environment; and actions outside of the Marine Park
that have, will have or are likely to have a significant impact on the environment of the
Marine Park.
64. Under current arrangements applying to actions in the Marine Park, the Great Barrier
Reef Marine Park Authority must, under the EPBC Act (section 160), seek the advice
of the Minister prior to issuing a permission for an action in the Marine Park likely to
have a significant impact on the environment. The Minister's advice is based on an
assessment carried out under Part 8 of the EPBC Act.
65. Establishing the Great Barrier Reef as a matter of NES maintains this "threshold" for
application of EPBC Act environmental impact assessment requirements to actions in
the Marine Park, but calls up those requirements in a more direct manner. In so doing, it
clarifies the impacts that must be assessed and approved, and more clearly and
completely applies the robust and transparent assessment and approval processes of the
EPBC Act - which include opportunities for public input, publication requirements,
timelines for decision-making and clearly stated decision-making criteria.
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66. As with other matters of NES, civil penalty and offence provisions are established to
prohibit actions:
· within the Marine Park having a significant impact on the environment; and
· outside of the Marine Park having a significant impact on the environment of the
Marine Park;
unless done in accordance with an approval issued under Part 9 of the EPBC Act,
having been assessed in accordance with Parts 7 and 8 of the EPBC Act (or unless
otherwise exempted).
67. The proposed new offence provisions includes strict liability elements, such that a
prosecutor will not have to show (where relevant to the offence in question) that the
accused knew or was reckless as to the fact that an action is taken in the Marine Park or
that an action is taken outside of the Marine Park but in the Australian jurisdiction. The
use of strict liability in this way is proposed having considered the Senate Scrutiny of
Bills Committee Sixth Report of 2002: Application of Absolute and Strict Liability
Offences in Commonwealth Legislation, as well as the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers, issued by authority
of the Minister for Justice and Customs. Having regard to these documents, strict
liability is established as it:
· ensures the integrity of the regulatory regime applying to the Great Barrier Reef;
· overcomes problems of proof that would otherwise make the regulatory regime
particularly difficult to enforce;
· overcomes a "knowledge of the law" problem; and
· goes, in part, to a jurisdictional element of the relevant offences.
68. The existence of a Marine Park is fundamental to and underpins regulation and
management of the Great Barrier Reef. Proclaiming an area as a part of the Marine Park
provides a framework from which regulatory and management arrangements flow. The
boundaries and activities allowed within the Marine Park are widely publicised, for
example, through the distribution of maps of the Park and the zones that it comprises.
In this context, deeming persons to be aware that they are within a Marine Park is
essential to the integrity of the regulatory regime in place to protect the Great Barrier
Reef.
69. Proving to a Court that a defendant did not know or was reckless to the fact that an area
was a part of the Marine Park is problematic. Such matters are largely within the
knowledge of the defendant alone, and proving the contrary beyond a reasonable doubt
would require significant and difficult to obtain indirect and circumstantial evidence.
70. The fact that an area is a part of the Marine Park forms a part of the law. Proclamations
creating the Marine Park are legislative instruments for the purposes of the LI Act -
that is, they determine the content of the law and impose obligations and create rights
(see LI Act s7). Allowing people to avoid conviction because they did not know an area
was a part of the Marine Park would allow ignorance of the law to be used as an excuse
for criminal behaviour.
71. For the offences proposed, the fact that an action takes place within the Marine Park is
in some senses jurisdictional. The essence of the proposed offences is a prohibition
against actions that have, will have or are likely to have a significant impact on the
environment. The fact that such actions or the impacts of an action must be within the
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Marine Park reflects the Commonwealth's powers and responsibilities to protect the
Great Barrier Reef.
Items 3-5 - Consequential changes to section 25AA
72. These items are a consequence of establishing the Marine Park as a matter of NES (see
item 2). Section 25AA provides a defence/exception to the offence and civil penalty
provisions of Division 1, Part 3 of the EPBC Act. The defence/exception ensures that a
person cannot be tried for impacts caused by the actions of third parties which are
consequential to the actions of the first person, but which are not directed or requested
by the first person. This does not prevent enforcement action being taken against the
third party for taking an action without an approval which has significant impacts on a
matter protected by Part 3 of the EPBC Act.
73. The current item ensures that the subsection 25AA defence/exception applies in relation
to the new offences and civil penalty provisions that establish the Marine Park as a
matter of NES.
Item 8 - Consequential changes to section 34
74. This item is a consequence of establishing the Marine Park as a matter of NES (see
item 2). Part 4, Division 2 of the EPBC Act provides for the accreditation of
management arrangements and the making of declarations that an action in a class of
actions does not require approval under Part 9 for the purposes of a specified provision
of Part 3 if the action is taken in accordance with an accredited management
arrangement. In accrediting a management arrangement, the Minister must be satisfied
that there has been or will be an adequate assessment of the impacts of relevant actions
on the "matter protected" by the provision of Part 3 in relation to which it is proposed
to make a declaration.
75. The current item amends the table in section 34 to provide that, for the purposes of
declarations relating to the new Marine Park matter of NES, the "matter protected" is
"the environment" for actions within the Marine Park, and the "environment in the
Marine Park" for actions outside the Marine Park.
Items 9 & 10 - Application of the EPBC Act Part 3 to actions in the Marine Park
76. These items amend section 43 so that actions in the Marine Park authorised by a
permission, authority, approval or permit issued under the GBRMP Act are no longer
exempt from EPBC Act Part 9 approval requirements. As a result, actions in the Marine
Park having a significant impact on a matter protected by Part 3 of the EPBC Act must
be assessed and approved in accordance with Parts 7, 8 and 9 of the EPBC Act (as
appropriate). The exception to this is activities allowed in the Marine Park "as of right"
(i.e. without a permission) under a GBRMP Act zoning plan. As with current
arrangements, EPBC Act approval requirements will not apply to such actions.
77. Amendments to the GBRMP Act proposed elsewhere (see Schedule 3) establish
requirements and considerations applying to the development of zoning plans. These
requirements are similar to those applying under Part 4, Divisions 2 and 3 of the
EPBC Act, which allows the Minister to make a declaration that actions in a class of
action do not require approval on the basis that they are done in accordance with an
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accredited management plan or bioregional plan. Furthermore, zoning plans are subject
to parliamentary disallowance. These provisions ensure that GBRMP Act zoning plans
provide an appropriate basis for an exception from EPBC Act approval requirements
for "as of right" activities.
78. Item 9 also amends the title of section 43 to better reflect its content, as amended.
Items 6, 7, 11 and 17 - Bilateral Agreements relating to the Marine Park
79. Item 11 amends section 49 to provide that a bilateral agreement made under Part 5 of
the EPBC Act does not apply to actions in the Marine Park unless the agreement
specifically provides otherwise. Similar qualifications are in place (see section 49) for
actions in Commonwealth areas and specified national parks established under the
EPBC Act.
80. The amendment recognises that the Australian and Queensland governments have in
place long-standing collaborative approaches to regulation and management of the
Great Barrier Reef. These approaches necessarily differ from approaches in place for
the regulation of environmental matters in other areas in Queensland (i.e. outside of the
Marine Park). The amendment proposed by this item provides scope for bilateral
agreements to include both general and Great Barrier Reef-specific arrangements.
81. Items 6, 7 and 17 are technical in nature and are a consequence of item 11.
Item 12 - Requirement to notify the Authority of relevant referrals
82. This item provides that, where an action has been referred to the Minister under the
EPBC Act, and the action is wholly or partially within the Marine Park, the Minister
must provide the Authority with a copy of the referral.
83. This requirement forms a part of changes to establish, for actions in the Marine Park, a
single integrated environmental impact assessment process under the EPBC Act, used
for the purposes of both the EPBC Act and the GBRMP Act. Item 41, below, provides
that a referral under the EPBC Act to take an action wholly or partially in the Marine
Park is deemed to also be an application under the GBRMP Act for any permissions
required under that Act. The current item complements that provision, by ensuring that
the Authority is made aware of any relevant referrals - and therefore of permission
applications deemed to have been made under the GBRMP Act (which the Authority is
responsible for assessing).
84. In practice, it is anticipated that the Authority will provide the "regulatory shopfront"
for both EPBC Act and GBRMP Act assessment and approval purposes in relation to
actions in the Marine Park. Under these arrangements, it is expected that a single
application would be made to the Authority (in relation to actions in the Marine Park),
initiating assessment processes for both EPBC Act approval and GBRMP Act
permission purposes.
Items 13 & 14 - Consequential amendments to section 74
85. These items are a consequence of establishing the Marine Park as a matter of NES (see
item 2). They provide that, where an action has been referred to the Minister, and the
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Minister believes that the Marine Park matter of NES could be a "controlling
provision" because of the impacts of the action on heritage values within the Marine
Park, the Minister may invite comments on that aspect of the referred action from the
Australian Heritage Council.
86. The amendments are necessary because the matter protected by the Marine Park matter
of NES is "the environment". Under the EPBC Act, "the environment" is defined to
include heritage values. The Australian Heritage Council is a key source of advice to
government on the protection of heritage values.
Items 15 & 16 - Consequential amendments to sections 75 and 82
87. These items are a consequence of establishing the Marine Park as a matter of NES (see
item 2). Under subsection 75(2), in deciding whether an action referred under the Act is
a "controlled action", the Minister must consider the adverse impacts the action has,
will have or is likely to have on each matter protected by Part 3 of the EPBC Act.
Similarly, section 82 provides that the "relevant impacts" of an action for the purposes
of assessment and approval under Parts 8 and 9 of the Act are the impacts the action
has, will have or is likely to have on each matter protected by each provision of Part 3
of the EPBC Act that the Minister has decided under section 75 is a "controlling
provision".
88. The items clarify these requirements by providing that, for an action that is (wholly or
partially) within the Marine Park, the impacts that must be considered are only the
impacts of that part of the action that is taken within the Marine Park. This is consistent
with qualifications applying to actions within National Heritage places, the
Commonwealth marine environment and Commonwealth land (see subsection 75(2A)).
These provisions, and the current item, reflect the powers and role of the
Commonwealth in relation to environmental matters.
89. The Marine Park matter of NES will also apply to parts of actions that are outside of the
Marine Park, insofar as the action has a significant impact on the environment of the
Marine Park.
Items 18-24 - Provisions allowing for a single environmental impact assessment process
for EPBC Act and GBRMP Act purposes
90. These items form part of changes to establish, for actions in the Marine Park, a single
integrated environmental impact assessment process under the EPBC Act, used for the
purposes of both the EPBC Act and the GBRMP Act. Item 41 provides that a referral
under the EPBC Act to take an action wholly or partially in the Marine Park is deemed
to also be an application under the GBRMP Act for any permissions required under that
Act. The current items complement that provision by providing that, where such a
deemed application has been made, the guidelines for a Public Environment Report
(PER) or Environmental Impact Statement (EIS) being prepared for EPBC Act
approval purposes may also require the PER or EIS to include information on matters
relevant to consideration of the deemed GBRMP Act permission application. Similarly,
the terms of reference for an inquiry being undertaken for EPBC Act approval purposes
may require the inquiry to consider matters relevant to the deemed GBRMP Act
permission application. These provisions will allow a single environmental impact
assessment to be undertaken to inform decision-making under both Acts.
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Item 25 - Consequential amendment to subsection 158A(1)
91. This item is a consequence of establishing the Marine Park as a matter of NES (see
item 2). Section 158A provides that, where an action has been referred under Part 7,
Division 1, and the Minister has made a decision on that referral under section 75, that
decision, and any other decision relevant to the assessment and approval process under
Parts 7, 8 and 9 of the EPBC Act for that action, is unaffected by a "listing event". This
is designed to ensure that the assessment and approval requirements applying to a
particular action are those in place at the time the Minister made a decision on the
referral under section 75, and are not affected by subsequent events that could
otherwise affect the required scope and nature of the assessment and approval process.
This item identifies a change to the boundaries of the Marine Park as a "listing event".
Items 26-34 - Consequential amendments to cetacean and listed marine species offences
92. These items are a consequence of establishing the Marine Park as a matter of NES (see
item 2). The items provide exemptions from certain offences related to cetaceans (see
section 231) and listed marine species (see section 255). The exemptions arise where an
action:
· is approved under Part 9 of the EPBC Act, and the approval is for the purposes of
the Marine Park matter of NES;
· is done in accordance with a declaration made by the Minister under section 33 that
particular actions do not require approval under Part 9 on the basis that they are
taken in accordance with a management arrangement accredited under Part 4 of the
EPBC Act, and that management arrangement is accredited for the purposes of the
Marine Park matter of NES; or
· is done in accordance with a declaration made by the Minister under section 37A
that particular actions do not require approval under Part 9 of the EPBC Act by
reference to the fact that they are undertaken in accordance with a Bioregional Plan
established under section 176, and the declaration is for the purposes of the Marine
Park matter of NES.
93. These exceptions are established as the impacts on cetaceans and listed marine species
must be considered in the context of issuing the Part 9 approval for the purposes of the
Marine Park matter of NES and in making a declaration under section 33 or 37A.
Similar exceptions apply to in relation to the Commonwealth marine environment
matter of NES (sections 23 and 24A) for this same reason.
Item 35 - Delegations
94. This item adds new sections allowing the Minister and Secretary to delegate powers
and functions under the EPBC Act to the Great Barrier Reef Marine Park Authority, the
Chairperson of the Authority or a member of the staff of the Authority. Powers and
functions may only be delegated insofar as they relate to the Marine Park. The
GBRMP Act subsection 7(1A) provides guidance on what is properly considered to be
a matter "relating" to the Marine Park. Powers related to enforcement may only be
delegated to Senior Executive Service or Executive Level employees to ensure coercive
powers are only exercised at appropriate organisational levels.
95. These delegation provisions will facilitate administration by the Authority of relevant
parts of the EPBC Act, insofar as they relate to the Marine Park. Most notably, the
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provisions will allow the Authority (or its Chairperson or staff) to be delegated
responsibility for the conduct of environmental impact assessment and approvals in
relation to actions in the Marine Park. The provisions will also allow the Authority (or
its Chairperson or staff) to be responsible for certain statutory decisions associated with
the investigation and enforcement, which is of value given the changes of Schedule 5.
96. A capacity to delegate any or all powers and functions under the EPBC Act to the
Authority (and not just those related to environmental impact assessment and approval)
is proposed in order to allow for a more holistic approach to environmental regulation
by the Environment Portfolio, particularly (but not exclusively) in relation to
environmental impact assessment under Chapter 4 of the EPBC Act, permitting under
Part 13 of the EPBC Act and enforcement activities under Part 17 of the EPBC Act.
97. A capacity to delegate to not only the Authority, but also the Chairperson of the
Authority and staff of the Authority, is essential to efficient administration. The giving
of delegations and the exercise of delegated powers are the subject of guidelines, fraud
control procedures and risk management processes and other protocols. These are
designed to ensure delegated decision-making is made at the appropriate level and in a
transparent and accountable manner.
Items 36 & 37 - Definitions
98. These items insert definitions of "Great Barrier Reef Marine Park" and "Great Barrier
Reef Marine Park Authority" in the EPBC Act to facilitate ease of reference.
Part 2 - Amendments to the Great Barrier Reef Marine Park Act 1975
Items 38-40 - Functions of the Authority
99. These items clarify that a function of the Authority is to perform functions relating to
the Marine Park under legislation other than the GBRMP Act. It also clarifies what is
properly considered a matter "relating to the Marine Park". It complements item 35,
which empowers the Minister and Secretary to delegate functions under the EPBC Act
to the Authority.
Item 41 - Relationship between the GBRMP Act and the EPBC Act
100. This item inserts a new Division in Part V of the GBRMP Act dealing with the
relationship between the GBRMP Act and the EPBC Act. The Division will pick up
existing section 39, which provides that an area of the Great Barrier Reef Region may
not be established as a Commonwealth reserve under the EPBC Act. The Division will
also include new provisions establishing a single integrated environmental impact
assessment process under the EPBC Act, used for the purposes of both the EPBC Act
and the GBRMP Act. This is achieved by providing that:
· where a proposal to take an action in the Marine Park has been referred under the
EPBC Act for assessment and approval, the referral is deemed to also be an
application for any permissions required under the GBRMP Act in relation to the
action; and
· where an action in the Marine Park is a "controlled action" for the purposes of the
EPBC Act (that is, it requires assessment and approval under the EPBC Act), a
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permission under the GBRMP Act cannot be issued in relation to that action unless
an EPBC Act approval for the action is in place.
101. These provisions allow for two forms of assessment and approval to be carried out
through a single, integrated environmental assessment - the two forms being:
· regulation of actions having significant impacts on the environment and other
matters of "national environmental significance" - which is the subject of the EPBC
Act approval; and
· regulation of activities in the Marine Park in order to ensure the protection,
ecologically sustainable use and orderly management of the Park - which is the
subject of GBRMP Act permissions.
102. In situations where an action in the Marine Park does not require assessment and
approval under the EPBC Act (i.e. the action is not a "controlled action"), permission
requirements under the GBRMP Act will remain, and the action assessed and
permissions issued in accordance with that Act alone.
Part 3 - Transitional, application and saving provisions
Items 42-44 - Application of new environmental impact assessment and approval
arrangements
103. These items establish transitional provisions for the proposed new environmental
impact assessment and approval arrangements established by this Schedule. The items
provide that the new arrangements do not apply to:
· actions that have legally been taken or begun at the time the legislative changes
commence - whether "as of right" or in accordance with an approval or permission
issued under the EPBC Act or GBRMP Act; and
· actions in relation to which a referral under the EPBC Act or permission application
under the GBRMP Act has been made and is "active" (i.e. has not lapsed, been
rejected or withdrawn etc since commencement of the changes).
104. These provisions are designed to ensure that the new environmental impact assessment
and approval arrangements do not introduce legal requirements retrospectively and, for
actions that are being assessed at the time the provisions commence, the `rules' are not
changed part way through the assessment process.
105. For actions that are in the process of being assessed at the time the legislative changes
commence, the proponent may elect to have the new process and requirements apply. In
order to do so, the current application and/or referral would need to be withdrawn and
resubmitted. Similarly, where an application/referral to which the transitional
provisions applies lapses or is rejected, and subsequently a new application/referral
relating to the same action is made, the new process and requirements will apply.
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SCHEDULE 5 - INVESTIGATION AND ENFORCEMENT
GENERAL OUTLINE
Schedule 5 makes amendments related to investigation and enforcement of the GBRMP Act
with the objectives of facilitating efficient and effective compliance and achieving better
consistency with the EPBC Act.
Investigation provisions
The changes to investigations provisions establish a single investigations regime for both
GBRMP Act and EPBC Act purposes.
Under current arrangements, the GBRMP Act provides for the appointment of inspectors.
Those inspectors may exercise a number of powers under the GBRMP Act for the purposes
of investigating compliance with the GBRMP Act. As ex officio inspectors under the
EPBC Act (section 397), inspectors may also exercise a different set of powers under that
Act for the purpose of investigating compliance with the EPBC Act.
The existence of two, slightly different, investigations regimes for the two key environmental
laws applying in the Marine Park creates unnecessary complexity and raises risks of non-
compliance with legislative requirements for the conduct of investigations. Changes to make
the EPBC Act the basis for environmental impact assessment and approval in the Marine
Park (Schedule 4) exacerbate these problems, due to increased application of the EPBC Act
to activities in the Marine Park.
The changes in this Schedule empower inspectors appointed under the GBRMP Act to use
the investigation powers of the EPBC Act for both EPBC Act and GBRMP Act purposes.
Relevant investigation powers of the GBRMP Act are repealed, with the exception of powers
related to the Environmental Management Charge and Compulsory Pilotage schemes
(GBRMP Act Parts VA and VIIA, respectively), which reflect needs specific to those
schemes.
The EPBC Act contains provisions generally equivalent to all of the repealed GBRMP Act
investigations provisions, with some minor exceptions. Where appropriate, these exceptions
have been addressed through inclusion of new provisions in the EPBC Act, and will
otherwise be dealt with through regulation amendments. Where relevant, this is indicated in
the notes on individual clauses.
The EPBC Act includes some investigation powers not currently in the GBRMP Act. The
EPBC Act provisions were reviewed and updated in early 2007 to provide a modern,
comprehensive, balanced and practical approach to environmental law enforcement. As
discussed in the notes on individual clauses, the availability of these powers for the purposes
of the GBRMP Act is, in all cases, necessary and appropriate, having regard to the nature of
GBRMP Act investigations activities and the governance arrangements in place for the
vesting and exercise of investigation powers.
New enforcement mechanisms
The Schedule amends the GBRMP Act to include a number of new mechanisms for
enforcing the Act. This is designed to increase flexibility, so that enforcement action can be
better tailored to the nature and circumstances of each particular alleged
offence/contravention. Criminal prosecution would always remain an option and the decision
in any particular circumstance as to what form of enforcement action is taken will be made
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consistently with relevant Australian Government policies and guidelines, and agency
enforcement policy.
The new enforcement mechanisms introduced by the schedule are as follows:
· Enforceable Directions - the Minister will be empowered to issue a person s/he
believes has breached the Act an "Enforceable Direction". A Direction can include a
requirement to take action or to cease taking action for the purposes of ensuring
ongoing compliance with the Act and/or to prevent, mitigate and remediate damage to
the environment resulting from an alleged breach of the Act. A person issued with a
direction has access to appeal rights.
· A civil penalty regime - it will be possible to take civil action against an alleged
wrongdoer seeking award of a pecuniary penalty. The availability of civil action as an
enforcement mechanism is expected to be particularly useful in relation to corporate
wrongdoing, where criminal prosecution can be difficult (given the need to provide
mental elements) and fail to provide an adequate disincentive.
· Enforceable undertakings - The Minister will be empowered to accept an
undertaking, enforceable in court, from a person the Minister believes has breached a
provision of the GBRMP Act. The undertaking could be to take action, or to pay the
Commonwealth money for the cost of taking action, directed at ensuring ongoing
compliance with the Act and/or remedying, mitigating and preventing damage to the
environment of the Great Barrier Reef Region.
· Infringement Notices - The GBRMP Regulations establish an infringement notice
regime. The schedule makes changes that will allow infringement notices to be used
in relation to certain offences against the GBRMP Act, rather than only offences in
the GBRMP Regulations, as is the current situation. The use of infringement notices
in any given situation would be at the discretion of those responsible for enforcing the
Act.
Encouraging responsible use of the Marine Park
The Schedule contains a number provisions designed to encourage compliance with the
GBRMP Act and responsible use of the Marine Park more generally, including through the
following changes:
· Publication of Offences - the Minister and Authority will be empowered to publicise
a contravention of the Act. Courts will be empowered to order a person convicted of
an offence or found to have contravened the Act, to take steps to publicise the
offence/contravention.
· Liability of Executive Officers - executive officers of bodies corporate may be held
personally liable for offences and civil penalty contraventions perpetrated by the body
corporate if they failed to exercise due diligence and take reasonable steps to prevent
the contravention or offence.
· Liability of permission and licence holders - permission and licence holders may be
held liable for the actions of others they have authorised to carry out activities under
the permission or licence if they failed to exercise due diligence in ensuring those
other people comply with the GBRMP Act and permission requirements.
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· Remediation orders - Courts will be empowered to order a person who has engaged
in conduct constituting an offence against the Act or contravention of a civil penalty
provision to take action to prevent, repair or mitigate environmental damage resulting
from their conduct.
· Environmental Duty - users of the Marine Park will be required to take reasonable
steps to prevent or minimise harm to the environment that might or will be caused by
their use of the Park. Guidance is provided as to what constitutes "reasonable steps".
Failing to comply with the duty is not an offence or a civil penalty contravention, but
may be enforced through an Enforceable Direction or Enforceable Undertaking (see
above).
· Directions limiting access to the Marine Park - where a person has contravened the
GBRMP Act three or more times within a ten year period, the Minister will be
empowered to issue a direction excluding or restricting use of the Marine Park by that
person for a period of up to ten years.
Facilitating efficient enforcement action
The Schedule includes provisions allowing for the use of evidentiary certificates so that
various technical and confidently asserted matters can be efficiently established in court
proceedings to enforce the Act.
Emergency Management
The Schedule addresses a gap in powers to manage the Marine Park by allowing for the
issuing of "Emergency Directions". Where a serious risk to the environment of the Marine
Park exists, the Authority will be empowered to make Emergency Directions requiring a
person or class of persons to take or not take specified action for the purpose of avoiding,
mitigating or eliminating the risk.
NOTES ON INDIVIDUAL CLAUSES
Part 1 - Amendment of the Environment Protection and
Biodiversity Conservation Act 1999
Items 1-5 - Inspectors
106. The amendments made by this Schedule make the investigation-related provisions of
the EPBC Act available for the purposes of investigating compliance with the
GBRMP Act. The current items provide that it is only inspectors appointed under the
GBRMP Act that may exercise EPBC Act investigation powers for GBRMP Act
purposes (as well as members and special members of the Australian Federal Police,
who have ex officio powers under both the GBRMP Act and EPBC Act). This
arrangement ensures that the vesting and exercise of investigation powers for
GBRMP Act purposes is subject to a clear governance framework, with responsibility
resting with the Authority.
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107. In light of these governance arrangements, the items also amend provisions related to
identity cards to provide that an identity card issued under the GBRMP Act to an
inspector appointed under that Act suffices for EPBC Act purposes. More specifically,
a GBRMP Act inspector need not be issued an EPBC Act identity card, and may satisfy
EPBC Act provisions requiring the production of an identity card by producing their
GBRMP Act identity card.
Items 6-87 - Making EPBC Act investigation provisions available for GBRMP Act
purposes
108. These items allow the investigation powers of the EPBC Act to be exercised for the
purposes of investigating compliance with the GBRMP Act.
109. EPBC Act investigation powers are currently exercisable in relation to a suspected
offence against the EPBC Act or regulations and/or a contravention of a civil penalty
provision of the EPBC Act. To establish a single investigations regime for EPBC Act
and GBRMP Act purposes, EPBC Act investigation powers will, in future, be
exercisable in relation to a suspected offence against "an environmental law" and/or a
contravention of "an environmental penalty provision". The terms "environmental law"
and "environmental penalty provision" are defined (items 76 and 77), respectively, as
an offence against the EPBC Act or GBRMP Act (and regulations) and a contravention
of a civil penalty provision of those Acts (and regulations). Similarly, the definitions of
"evidential material" (subsection 406(2)) and "relevant material" (subsection
407A(12)) are amended to ensure such materials include evidence of an offence
against, or contravention of a civil penalty provision of, the GBRMP Act and
regulations.
110. An exception to the general approach of using EPBC Act investigation powers for
GBRMP Act purposes relates to enforcement of the Compulsory Pilotage provisions of
the GBRMP Act (Part VIIA). In line with current GBRMP Act provisions, a number of
EPBC Act investigation powers will not be available in relation to the Compulsory
Pilotage provisions. The exception is in place because the GBRMP Act Part VIIA
provides investigation powers specific to the Compulsory Pilotage scheme, reflecting
the nature and needs of that scheme.
111. Further information on the particular EPBC Act investigation provisions that are made
available for GBRMP Act purposes, and the rationale for doing so, is provided below.
Boarding vessels, aircraft, vehicles, platforms (Items 6, 11-16)
112. Subsection 403(2) provides authorised officers with a power to board a vehicle, vessel,
aircraft or platform to search for "evidential materials" (see EPBC Act ss406(2)). The
GBRMP Act section 48 contains an equivalent power, which will be repealed (see item
122). The power to board and search a vessel etc without warrant remains necessary
and appropriate in investigating compliance with the GBRMP Act given the large area
of the Marine Park, the often remote location in which investigations are conducted,
and the mobility of vehicles, vessels and aircraft. A requirement to obtain a warrant in
such circumstances would unduly hamper efficient and effective investigations.
113. An inspector who has boarded a vehicle, vessel, aircraft or platform may exercise the
powers set out in section 406 related to the identification and collection of evidence.
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The inspector may also conduct a search of a person on the vessel, platform etc, without
warrant, for any eligible seizable items or evidential material. The search is of
essentially the same nature as a "frisk search" (see EPBC Act section 413(3)). This
power is necessary to ensure the safety of officers conducting searches and to facilitate
the efficient collection of evidence. Obtaining a warrant prior to conducting a search is
impractical and inefficient given the large area of the Marine Park, the often remote
location in which investigations are conducted and the mobility of vessels. Section
406A imposes requirements on the conduct of searches to ensure a person searched is
not subjected to undue indignity.
Bringing vessels and aircraft to port/airport (Items 7 & 8)
114. Subsection 403(3) empowers an authorised officer to themselves bring, or to direct a
person in charge of a vessel the officer suspects on reasonable grounds has been used or
involved in the commission of an offence to bring, the vessel to the nearest port.
Subsection 403(4)(a) empowers an authorised officer to direct a person in charge of an
aircraft the officer suspects on reasonable grounds has been involved in the commission
of an offence, to bring the aircraft to the nearest airport.
115. The GBRMP Act currently includes a similar provision allowing an inspector to give a
notice requiring the delivery of a vessel or aircraft the inspector is authorised to seize to
a specified location (section 47B). This provision will be repealed (see item 122). Such
a power is necessary and appropriate in investigating compliance with the GBRMP Act
given the large area of the Marine Park, the often remote location in which
investigations are conducted, and the mobility of vessels. Intercepting vessels, and
properly searching for and collecting evidence at the point of interception, can be
difficult or impractical and potentially unsafe. Intercepting and inspecting aircraft en
route is not possible.
Requiring information from persons in charge of a vehicle, vessel, aircraft or platform
(Item 9)
116. Subsection 403(5) empowers an authorised officer who has boarded a vessel, aircraft
vehicle or platform to require the person in charge of the vessel etc to provide
information concerning the vessel etc, its crew and other persons on the vessel etc. The
current item, in addition to making this power available for the purposes of
investigating compliance with the GBRMP Act and regulations, clarifies that the person
in charge of a vessel may be required to provide information concerning persons
operating dories in association with vessel. This recognises the responsibility of vessel
operators for others working dories in association with the vessel.
Taking things into possession (Items 17-19)
117. This item inserts a new section 406AA. The new section empowers an authorised
officer that has found eligible seizable items in searching a vehicle, vessel, aircraft or
platform (under paragraph 406(1)(a)) or a person (under paragraph 406(1)(ba) or
406A), to take that item into possession and keep it for as long as necessary for the
purposes of the EPBC Act and/or GBRMP Act.
118. This provision takes the existing powers in subsections 406A(4), (5) and (6) (repealed
by item 17), which relate to eligible seizable items found during search of a person, and
extends the power to include such items found in searching the vessel etc. This capacity
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is currently missing from the EPBC Act and is important in ensuring the safety of
persons boarding and searching vessels etc under section 403, as it allows items that
may present a danger to inspectors or be used to escape lawful custody to be secured
until such time as it is safe to return the item.
Division 3, Part 17 - Monitoring of Compliance (Items 20 & 21)
119. Division 3 of Part 17 empowers authorised officers to board/enter, with the consent of
the occupier/operator, premises, vehicles, vessels etc for the purpose of finding out
whether the provisions of the Act have been, are being or will be complied with.
Section 409 provides for entry for the same purpose pursuant to a monitoring warrant
issued by a magistrate. These powers are directed at monitoring compliance with
legislative requirements, rather searching for evidence of specific offences. The powers
provide a mechanism for auditing operations, particularly large and complex activities,
to ensure they are being conducted consistently with the full range of applicable legal
requirements. Such a power is necessary in the context of the Marine Park, as
compliance with legal requirements is often contingent not simply on the fact that an
activity is or is not being undertaken, but on the manner in which an activity is done
and the environmental outcomes of the activity over time (for example, the level and
nature of discharges into the Marine Park)
Division 4, Part 17 - Search Warrants (Items 22-43)
120. Division 4, Part 17 of the EPBC Act provides for the issuing of search warrants by a
magistrate. The GBRMP Act does not currently provide for the issuing of search
warrants. Instead, where search under warrant is required, Crimes Act 1914 provisions
are available. It is proposed elsewhere (see item 125) that a civil penalty regime be
introduced into the GBRMP Act. Consequently, it is necessary to allow search under
warrant for the purposes of collecting evidence of both criminal offences and
contravention of civil penalty provisions. The EPBC Act search warrant regime allows
for this.
121. The Authority has in place an internal governance framework for the vesting and
exercise of investigations powers that is consistent with the Commonwealth Fraud
Control Guidelines and other relevant Australian Government policies and guidelines.
Governance arrangements will be further reviewed and updated in light of the changes
in the Bill such that, to the extent the search warrant powers of the EPBC Act are used
for GBRMP Act purposes, warrants will only be applied for and executed by police
officers.
Part 17, Division 6 - Arrest and related matters (Items 44-50)
122. Section 403 allows an authorised officer to arrest a person without warrant if the officer
believes on reasonable grounds that the person has or is committing an offence and that
proceedings against the person by summons would not be effective. Section 46 of the
GBRMP Act contains an equivalent power (which will be repealed). The capacity to
arrest without warrant remains necessary and appropriate in enforcing the GBRMP Act
given the often remote location in which investigations are conducted, and the fact that
alleged offenders may be located on vessels or are otherwise highly mobile. The
Authority's internal governance framework for the exercise of arrest powers dictates
that the power is only used in exceptional circumstances, almost always by a police
officer, and in any case, only by an appropriately qualified person. The EPBC Act
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subsection 403(3) requires that a person arrested without warrant must, without
unreasonable delay, be brought before a Justice of the Peace or other authority to be
dealt with in accordance with the law.
123. Section 431 and 432 empower an authorised officer to conduct a frisk search and
ordinary search (respectively) of a person arrested under section 430. Sections 46A and
46B of the GBRMP Act provide identical powers (which are repealed). The power to
conduct searches of an arrested person remains necessary and appropriate in enforcing
the GBRMP Act, as it helps ensure the safety of authorised officers and others and
facilitates the efficient collection of evidence. The required context of an arrest
provides assurance that the power will not be used in the absence of reasonable
suspicion.
124. Section 433 allows the seizure of evidential material that is in plain view at the
premises at which a person is arrested under section 430. This power facilitates the
efficient and effective investigation of suspected offences for which a person has been
arrested and decreases the risk of evidence being destroyed to avoid seizure. There is no
equivalent provision in the GBRMP Act.
Power to ask for a persons' name and address (Item 51)
125. Subsection 444(1) empowers an authorised officer to ask for a person's name and
address if they suspect on reasonable grounds that the person has been involved in the
commission of an offence. Paragraph 48(2)(b) of the GBRMP Act contains an
equivalent provision (which is repealed). The power remains necessary and appropriate
to efficient and effective investigation of compliance with the GBRMP Act and is
subject to the requirement for reasonable suspicion and the production of relevant
identification (e.g. the inspector's identify card).
Seizure (Items 52-56)
126. Section 445 allows the seizure, without warrant, of any thing an authorised officer
suspects on reasonable grounds is evidential material. The GBRMP Act subsections
47(2) and (6) provide equivalent powers (which are repealed). The power to seize
evidential material without warrant remains necessary and appropriate in investigating
compliance with the GBRMP Act given the large area of the Marine Park, the often
remote location in which investigations are conducted, and the mobility of vehicles,
vessels and aircraft that are the most common subject of investigations. A requirement
to obtain a warrant prior to seizing items in such circumstances would unduly hamper
efficient and effective investigations and often be impractical. The power is also a
corollary of section 403, which allows authorised officers to board and search vehicles,
vessels, aircraft etc without warrant. The exercise of seizure powers is subject to
protections, notably a requirement that seized items be expeditiously returned as soon
as retention of the item is no longer necessary or justified (section 446).
Direction to deliver a seizable item (Item 57)
127. Section 47B of the GBRMP Act empowers an inspector to issue a notice requiring the
delivery of a vessel, aircraft, article, plant or animal the inspector is authorised to seize.
Item 57 proposes that the EPBC Act be amended to include an equivalent provision, as
the relevant GBRMP Act provision is repealed.
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128. The power to order the delivery of an item for the purpose of seizure is important to
efficient and effective investigation of both the GBRMP Act and the EPBC Act, most
notably in circumstances where investigations are carried out in remote locations, as is
the case in the Marine Park (and Commonwealth Reserves established under the EPBC
Act). Seizure at the location in question may be impractical, unsafe and unnecessarily
inconvenient for both the authorised officer (for example, they may not have the
capacity to take possession of illegally caught fish or take charge of a vessel), and those
who are the subject of the investigation (for example, those aboard a vessel that is to be
seized).
129. The power to order delivery of an item for seizure purposes is enforced through a new
offence provision carrying a maximum penalty of 12 months imprisonment, 60 penalty
units (individual) or both. A custodial sentence is considered appropriate as failing to
comply with a direction could amount to obstructing an investigation by a law
enforcement officer - a serious offence warranting the potential of imprisonment. The
penalty is aligned with analogous offences, for example, subsection 63(2) of the Sea
Installations Act, which relates to failing to provide information required by an
inspector.
Release of a seized item subject to a condition (Items 58 & 59)
130. This item establishes a new offence applying where a seized item is released subject to
a condition pursuant to section 449BA and that condition is not complied with. The
offence ensures the conditions of release of a seized item are appropriately enforceable.
A maximum penalty of 12 months imprisonment, 60 penalty units (individual) or both
is specified. A custodial sentence is considered appropriate as failing to comply with a
direction could amount to obstructing an investigation by a law enforcement officer - a
serious offence warranting the potential of imprisonment. The penalty is aligned with
that of an equivalent offence in the GBRMP Act, which is repealed by this Bill.
131. The offence establishes absolute liability in relation to the element that a person has
been issued with a direction. Absolute liability is applied as the fact that a seized item
has been released subject to a condition is a jurisdictional element of the offence - the
essence of the offence is non-compliance with such conditions. Application of absolute
liability is proposed having considered the Senate Scrutiny of Bills Committee Sixth
Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth
Legislation, as well as the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers, issued by authority of the Minister for Justice and Customs.
Forfeiture (Items 60-68)
132. Section 450 empowers a court, upon convicting a person of an offence, to order
forfeiture of any thing used or involved in the commission of the offence. Section 450A
allows a court, on application, to order the forfeiture of a thing that has been seized if
the Court is satisfied that the thing has been used or otherwise involved in the
commission of an offence. The GBRMP Act includes an equivalent provision
(section 47(1)), which will be repealed. This power remains appropriate, as it provides
an important deterrence effect and helps to ensure that persons do not gain
economically as a result of illegal activity, for example, that persons convicted of
illegal fishing are not able to keep and sell fish caught illegally, the revenue from which
may offset any penalty imposed.
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Breaking or destroying things to prevent seizure (Item 69)
133. This item ensures that offence of breaking or destroying things to prevent seizure
applies to things that are evidence of an offence against the GBRMP Act and
regulations (as well as against the EPBC Act). The item also extends the offence to
cover evidence of an offence against the EPBC Regulations. This corrects a previous
oversight.
Part 17, Division 15A - Notices to Produce and Attend (Items 70-74)
134. Sections 486E-486J empower the Minister to issue "notices to produce" and "notices to
attend", that is, a notice requiring a person to produce information or to appear and
answer questions for the purposes of investigating or preventing an offence or
contravention of a civil penalty provision. Items 70-74 allow such notices to be issued
in relation to contraventions of the GBRMP Act, as well as the EPBC Act (as is
currently the case). As part of this, the items expand the range of officials a person may
be required to provide information to or appear before to include the Chairperson and
staff of the Authority. This allows investigation of compliance with the GBRMP Act
through notices to produce/attend to be undertaken by the Authority, reflecting its
statutory and administrative responsibilities.
135. The capacity to seek information through notices to produce/attend will greatly assist
the efficiency of enforcement and administration of the GBRMP Act, notably where
information is most easily accessed, or is only available to, the person to be served with
the notice. The capacity to issue a notice is subject to a requirement of reasonable belief
(section 486E), and a person issued a notice is protected against self incrimination
(section 486J).
Definitions (Items 75-78)
136. These items insert definitions in the EPBC Act of the following terms:
"dory" - this term is defined consistently with the GBRMP Act. The need to define
the term is a consequence of item 9, which empowers an authorised officer to request
information from the master of a vessel regarding the operators of dories associated
with that vessel
"environmental law" - As discussed above, this schedule makes EPBC Act
investigation provisions available for GBRMP Act purposes by providing that
investigation powers can be exercised in relation to a suspected offence against "an
environmental law". The current item defines "an environmental law" as the
EPBC Act, GBRMP Act and regulations made under those Acts.
"environmental penalty provision" - As discussed above, this schedule makes
EPBC Act investigation provisions available for GBRMP Act purposes by providing
that investigation powers can be exercised in relation to a suspected contravention of
an "environmental penalty provision". The current item defines an "environmental
penalty provision" as a civil penalty provision of the EPBC Act, GBRMP Act and
regulations made under those Acts.
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"Primary commercial fishing vessel" - this term is defined as it is used in the
definition of "dory" (see above). The term is defined consistently with the
GBRMP Act.
Provisions relating to the detention of suspected foreign offenders (Items 79-87)
137. The provisions amended by these items relate to the detention and handling of
suspected foreign offenders - persons that are not Australian citizens or residents, and
who are apprehended on suspicion of an offence involving a foreign vessel and/or an
offence committed in a location within the Australian jurisdiction, but outside the
migration zone (see Migration Act 1958). Schedule 1 of the EPBC Act allows such
suspected offenders to be placed into "environment detention" for a limited period
while it is determined whether to charge them with an offence against the EPBC Act or
regulations or section 6 of the Crimes Act 1914. Schedule 1 includes provisions relating
to the screening, identifying and handling of persons in environmental detention and the
transfer of such persons from environmental detention to migration detention under the
Migration Act 1958.
138. The EPBC Act Schedule 1 environmental detention provisions are closely aligned with
those for "fisheries detention" under the Fisheries Management Act 1991 and
"migration detention" under the Migration Act 1958. This alignment is particularly
important as, in practice, persons in environmental, fisheries and immigration detention
will often be held at the same facility. Having equivalent powers and processes ensures
consistent treatment and minimises risks of non-compliance with legal requirements.
Alignment also facilitates the ultimate transfer of persons into migration detention, as it
ensures that all persons are subject to the same initial screening and identifying
processes, regardless of which regime they are first detained under.
139. The current items make the environmental detention provisions of the EPBC Act
available in relation to suspected offences against the GBRMP Act and regulations.
These changes are necessary to ensure that persons committing offences in the Marine
Park, who are not Australian citizens or residents, can be apprehended and prosecuted
for offences against the GBRMP Act and regulations, in addition to being dealt with in
accordance with the Migration Act 1958.
140. The EPBC Act Schedule 1 provisions were introduced in early 2007 and have yet to be
fully implemented. Given the changes in the current Bill, it is proposed that the
Schedule 1 provisions be implemented for the purposes of both the EPBC Act and the
GBRMP Act through a single or closely integrated approach. Arrangements will be
developed in consultation with the Minister responsible for administration of the
Migration Act 1958 to ensure consistency in approach with migration detention
arrangements.
Part 2 - Amendment of the Great Barrier Reef Marine Park Act 1975
Items 88-107 - Definitions
141. These items insert or amend definitions of the following terms and repeal redundant
definitions.
· Civil penalty provision - see item 125, which establishes a civil penalty regime.
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· Class vessel monitoring direction - see item 125, which provides for the making
of "class vessel monitoring directions".
· Declaration of contravention - see item 125, which empowers a Court, on
application, to make a declaration that a person has contravened the GBRMP Act.
· Emergency Direction -see item 125, which provides for the making of
"emergency directions".
· Enforceable direction - see item 125, which provides for the issuing of
"enforceable directions".
· Executive officer - see item 125, which includes provisions relating to the liability
of executive officers of bodies corporate.
· Federal Court - this term is inserted to facilitate ease of reference.
· Individual vessel monitoring direction - see item 125, which provides for the
making of "individual vessel monitoring directions".
· Pecuniary penalty order - see item 125, which empowers a Court to order a
pecuniary penalty.
· Penalty unit - this term is defined by reference to the Crimes Act 1914 and is a
consequence of the inclusion of a civil penalty regime in the GBRMP Act.
· Remediation order - see item 125, which empowers a Court to issue a
"remediation order"
· Reviewable decision - see item 125, which provides for review of specified
"reviewable decisions" by the Administrative Appeals Tribunal.
· Vessel monitoring direction - see item 125, which provides for the issuing of
"vessel monitoring directions".
· Vessel monitoring system - This term is defined consistently with the Fisheries
Management Act 1991(Cth) (subsection 167B(4)).
· Owner of a vessel - subsection 3(10) is amended to clarify that that, where the
owner of a vessel does not operate a vessel, and the vessel is instead operated by
another person, a reference to the owner is taken to be a reference to that other
person.
Item 108 - Application to the Crown
142. This item is a consequence of inclusion of a civil penalty regime in the GBRMP Act
(see item 125). The item provides that the Crown is not liable to be subject to civil
proceedings for the contravention of a civil penalty provision of the Act. Such entities
are currently exempt from prosecution for an offence against the Act. The Act does,
however, bind the Crown and enables the Act to be enforced against the Crown through
means such as an injunction.
Item 109 - Section 4A (note 1): updating a cross reference
143. This item is a technical change. It updates a cross-reference as a consequence of the
repeal and re-enactment of subsection 64(8) - see item 125.
Item 110 - Environmental Duty
144. This item establishes an "environmental duty", under which persons entering and using
the Marine Park must take reasonable steps to prevent or minimise harm to the
environment that might or will be caused by their entry and use of the Marine Park. The
steps required to fulfil the duty will depend on circumstances, for example, the
significance of any potential impacts and practicality and costs of action. The item
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provides guidance on the matters that must be considered in determining whether the
duty has been fulfilled in a particular circumstance. Administrative guidelines, codes of
practice and other best practice standards will also help indicate what is required.
Breach of the duty is not an offence, but triggers the possibility of administrative
action, through which reasonable and practical steps towards achieving the outcome of
avoiding or minimising environmental harm would be collaboratively identified by the
Authority and person/company in question.
145. The environmental duty recognises that "black letter" law often does not provide the
most efficient means of achieving desired environmental outcomes. The duty provides
a mechanism through which best practice approaches to environmental protection can
be flexibly and collaboratively established on, for example, an individual, site, area,
sector or industry-specific basis, as appropriate. This recognises that one size does not
always fit all, and thereby helps to minimise imposts on business and communities
arising from regulation. Analogous requirements exist under state environmental
protection legislation.
Items 111 &112 - Appropriation of the Consolidated Revenue Fund for Environmental
Management Charge-related receipts and payments
146. These items repeal provisions providing an appropriation in relation to Environmental
Management Charge-related payments and receipts. The appropriations are
consolidated and re-enacted in item 141.
Items 113-116 - Environmental Management Charge investigation provisions
147. These items update investigation provisions that relate specifically to the
Environmental Management Charge (EMC) (see GBRMP Act Part VA).
148. The EMC-specific investigation powers are currently qualified by the general
GBRMP Act investigation powers, notably, a requirement for inspectors to produce
identification upon request when searching (or proposing to search) an aircraft or vessel
under section 39S. As this general provision is being repealed (item 122), item 113
amends the EMC-specific power to include a provision of equivalent effect.
149. Item 114 establishes a new subsection 39T(1A) requiring an inspector seeking to enter
and search premises (under existing subsection 39T(1)) to produce identification upon
request. Similarly, item 115 inserts a new subsection 39T(2A) requiring an inspector
seeking to enter and search premises under warrant (pursuant to existing subsection
39T(2)) to produce identification and a copy of the warrant. These changes update
existing provisions to bring them into line with the Australian Government Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. In so
doing, they ensure appropriate procedural requirements apply to the exercise of
coercive powers.
150. Item 116 is of a technical nature and inserts a definition of "occupier" for the purposes
of section 39T. This is done to clarify on whom section 39T imposes liabilities and to
guide the proper exercise of investigation powers under the section.
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Items 118-121 - Appointment of inspectors
151. These items provide that the Authority must not appoint as an inspector an officer or
employee of another Australian Government agency or Queensland Government
instrumentality unless there is first an arrangement to do so in place. In the case of the
officers and employees of another Australian Government agency, the arrangement
must be between the Authority and the other agency. In the case of Queensland
Government officers or employees, the arrangement must be between the Minister and
the relevant Queensland Government Minister.
152. The capacity to make such arrangements is in place because the Great Barrier Reef is
managed collaboratively by a number of Australian and Queensland government
agencies. For example, under an intergovernmental agreement, Queensland
instrumentalities undertake field management activities in the Marine Park, including
investigation and enforcement tasks. Similarly, enforcement and management activities
in the Marine Park are undertaken by a wide range of Australian government agencies,
including the Australian Federal Police, Australian Customs Service, and Australian
Maritime Safety Authority. This provides for more efficient and effective management
and enforcement, and allows the Commonwealth's Great Barrier Reef Marine Park and
Queensland's marine and island national parks within the Great Barrier Reef World
Heritage Area to be managed in an integrated and holistic manner.
153. Arrangements related to the appointment of persons as inspectors may set out matters
such as the class and qualifications of persons that may be appointed as inspectors, the
powers that may be vested and the purposes they may be vested for. Similarly, in
appointing persons as inspectors (either pursuant to an arrangement or otherwise), the
Authority may specify the powers that may be exercised under both the GBRMP Act
and EPBC Act. These provisions help to ensure there are sound governance
arrangements around the vesting and exercise of inspectors' powers. They provide a
legislative framework, which is complemented by administrative arrangements, such as
protocols on the qualifications required for the vesting and exercise of inspectors'
powers. This framework is designed to ensure that compulsive powers are only
exercised by appropriately qualified persons and subject to appropriate controls and
accountability.
154. Items 119 and 121 insert notes drawing attention to the fact that inspectors appointed
under the GBRMP Act have powers under the EPBC Act to enforce the GBRMP Act.
This is informational, and a consequence of changes discussed above, that establish the
investigation powers of the EPBC Act as the basis for enforcement of the GBRMP Act.
Item 122 - Repeal of GBRMP Act investigation provision (sections 45A to 48A)
155. This item is a key component of changes to make EPBC Act investigation powers the
basis for investigating compliance with the GBRMP Act. The item repeals GBRMP Act
investigation provisions that are of a general nature. Investigations provisions specific
to the Environmental Management Charge scheme (Part VA) and Compulsory Pilotage
scheme (Part VIIA) are retained in the GBRMP Act, as those provisions reflect needs
specific to those schemes.
156. The EPBC Act (as amended by this Bill) includes provisions generally equivalent to all
of the provisions repealed by this item, with the following exceptions:
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· The power to give directions for the purpose of ensuring the Act is complied with
(section 45A) and to give an order to a person to leave the Marine Park or a zone
(paragraph 48(2)(b)). These powers will be replaced through regulation
amendments. A similar approach is taken in relation to Commonwealth Reserves
established under the EPBC Act (see EPBC Regulations, regulation 12.60)
· The power to require a person to produce a copy of a permission the inspector
believes the person requires to carry out an activity in the Marine Park
(paragraph 48(2)(c)). This power will be replaced through regulation amendments.
A similar approach is taken in relation to Commonwealth Reserves established
under the EPBC Act (see EPBC Regulations, regulation 12.59)
· The GBRMP Act subsections 47(3), (8) and (9) currently provide that a person who
has suffered loss or damage as a result of wrongful seizure is entitled to reasonable
compensation. These provisions are not reproduced elsewhere as common law
remedies are available (notably conversion and detinue). Further, the EPBC Act
section 517 will operate to ensure that compensation is paid by the Commonwealth
on "just terms" where there is an acquisition of property, as required by the
Constitution.
Items 117, 122 & 123 - Delegation of powers and functions
157. Item 122 empowers the Minister to delegate to the Authority any or all of the Minister's
powers and functions under the Act, with specified exceptions. The powers and
functions that may not be delegated are matters properly vested with the Minister only,
such as the approval of a zoning plan prepared by the Authority and arranging for the
peer-review of a Great Barrier Reef Outlook Report prepared by the Authority.
158. In exercising powers delegated to it, the Authority must comply with any directions of
the Minister. Item 123 requires that any such directions be disclosed in the Authority's
annual report. This requirement ensures an appropriate level of independence for the
Authority in management of the Marine Park by providing for transparency and
accountability in relation to any Ministerial directions to the Authority. The provision is
analogous to existing provisions (see subsection 61A(4)).
159. Item 122 also empowers:
· the Authority to delegate its powers under the GBRMP Act and to sub-delegate
powers delegated to it to:
- the Chairperson of the Authority;
- an employee of the Authority;
- an officer or employee of another Australian Public Service Agency;
- an officer or employee of a Commonwealth authority or company;
- an officer or employee of the Queensland Government; and
· the Chairperson of the Authority to sub-delegate powers and functions delegated
(but not sub-delegated) to the Chairperson under the GBRMP Act or any other Act,
to an employee of the Authority.
160. The Authority and Chairperson may only delegate and sub-delegate enforcement-
related powers and functions to SES and Executive Level employees and officers (and
state government equivalents). This ensures coercive powers are exercised by people
with appropriate experience and expertise, and are at an appropriate level in the
organisation.
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161. The Authority may not delegate powers and functions to an officer or employee of
another Australian Government agency or Queensland Government instrumentality
unless there is first an arrangement to do so in place. In the case of the officers and
employees of another Australian Government agency, the arrangement must be
between the Authority and the other agency. In the case of Queensland Government
officers or employees, the arrangement must be between the Minister and the relevant
Queensland Government Minister. Such arrangements may set out matters such as the
class and qualifications of persons that may be delegated powers and functions. These
provisions help to ensure there are sound governance arrangements around the vesting
and exercise of delegated powers. They provide a legislative framework, which is
complemented by administrative arrangements, such as protocols on who may be
delegated powers and for what purpose.
162. The scope of the delegation powers reflects the nature of the Authority's functions and
powers, and the way it does business.
· The Great Barrier Reef is managed collaboratively by a number of Australian and
Queensland government agencies. For example, under an intergovernmental
agreement, Queensland instrumentalities undertake field management activities in
the Marine Park. This requires the delegation of certain powers and functions to
Queensland public service employees. Similarly, enforcement and management
activities in the Marine Park are undertaken by a wide range of Australian
government agencies, including the Australian Federal Police, Australian Customs
Service, and the Australian Maritime Safety Authority.
· The size of the Marine Park is significant and it is in parts remote. Some powers
and functions need to be performed by people "on the water" in order to provide for
effective management and administration of the Act.
· The Authority comprises multiple members who meet infrequently. A capacity to
delegate day-to-day issues to the Chairperson, Authority staff and others allows for
more effective management.
Items 124 & 125 - Enforcement Provisions
New Enforcement Part
163. Item 124 establishes a new Part of the Act dealing with enforcement matters.
Repeal of section 61
164. Item 125 repeals section 61, which relates to delegation powers. Item 122 establishes
new delegation provisions.
Vessel Monitoring Directions
165. Item 125 establishes a Subdivision empowering the Authority to issue a "vessel
monitoring direction" requiring a person to provide, or cause to be provided (e.g. via
another government agency), Vessel Monitoring System (VMS) data in relation to a
vessel while it is within the Marine Park. Such a direction may only be made in relation
to vessels that are required, under a Commonwealth or State law, to be equipped with a
VMS. The provision does not empower the Authority to direct a person to install and
use a VMS system. Directions may be issued in relation to an individual vessel (an
"individual vessel monitoring direction") or in relation to a class of vessels (a "class
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vessel monitoring direction"), for example, all vessels licensed to operate within a
particular fishery.
166. A VMS is an electronic device fitted to a vessel that provides information, generally via
satellite or radio frequency, on the location, course and speed of a vessel, and similar
such matters. VMS are currently required by law to be fitted on vessels operating in all
Commonwealth and some Queensland fisheries. Some non-fishing vessels are also
required to be fitted with VMS (although a different name is sometimes used, such as
"Automatic Identification System"). Access to VMS data has potential to significantly
enhance efficiency in enforcement of the GBRMP Act by providing real-time data on
key users of the Marine Park that can be used to initiate on-water investigations and in
the context of enforcement action.
167. As VMS data may potentially be commercially sensitive, the item provides that data
may not be used or disclosed by the Authority except for the purposes of administering
the GBRMP Act, managing the Marine Park, and in the context of court proceedings to
enforce the Act or for a review of a decision under the Act (e.g. as evidence). VMS data
may also be disclosed for law enforcement purposes, for example, to other government
agencies, and otherwise as required by law. Amendments elsewhere (item 125) provide
for the making of evidentiary certificates in relation to VMS data, limiting the need to
publicly disclose data in the context of enforcement action.
168. The item establishes an offence and civil penalty provision of failing to comply with a
vessel monitoring direction. Enforcement of directions may also be achieved through
an injunction or other court order.
169. The offence provides for absolute liability in relation to the circumstances that a vessel
monitoring direction applies to a vessel and to a person or kind of person. Absolute
liability is applied because the matters are jurisdictional - the essence of the offence is
that a person has failed to comply with a direction. Further, if the direction relates to a
particular vessel, the offence only applies where the person has been given a copy of
the direction. Similarly, a direction that applies to a class of person must be published
on the Federal Register of Legislative Instruments.
170. Strict liability is applied to the elements of the offence that a person is a "responsible
person" and the person has been provided a copy of the direction. As above, these
matters are jurisdictional elements of the offence, however, it is appropriate that a
defence of honest and reasonable mistake be available.
171. The item specifies that a Vessel Monitoring Direction that applies to a particular vessel
(an "individual vessel monitoring direction") is not a legislative instrument within the
meaning of the Legislative Instruments Act 2003 (LI Act). This is declaratory of the law
and included to assist readers - a direction made to an individual is not legislative in
nature within the meaning of section 5 of the LI Act. Vessel Monitoring Directions that
apply to a class of vessel ("class vessel monitoring directions") are legislative
instruments. Accordingly, such Directions will need to be registered on the Federal
Register of Legislative Instruments, and tabled in Parliament where they may be subject
to disallowance.
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Enforceable undertakings
172. Item 125 establishes a subdivision empowering the Minister to enter into an
undertaking with a person the Minister believes has contravened a civil penalty
provision of the GBRMP Act or the environmental duty (see item 110). An undertaking
may include a commitment to take action to ensure compliance with the
Act/environmental duty in the future; to prevent, mitigate or repair damage to the
environment; or to pay money to the Commonwealth for the above purposes. The
entering into of an enforceable undertaking is voluntary on the part of both parties and
may be withdrawn, varied or cancelled at any time by agreement. Undertakings may be
enforced by the Federal Court of Australia.
173. Enforceable undertakings provide an administrative mechanism for flexibly dealing
with non-compliance with the GBRMP Act, backed up by legal enforceability.
Undertakings provide a framework through which persons suspected of contravening a
civil penalty provision of the GBRMP Act or the environmental duty can be brought
into conformity and/or any detrimental environmental impacts of non-conformity be
repaired.
174. The use of undertakings in any given circumstance is a matter of discretion. Criminal
prosecution, civil action or another form of legal or administrative enforcement will
always remain an option. The decision in any particular case as to what form of
enforcement action is taken will depend on circumstances and will be made
consistently with relevant Australian Government policies and guidelines and agency
enforcement policy.
Emergency Directions
175. Item 125 establishes a subdivision empowering the Authority to make "Emergency
Directions" where a serious risk to the environment of the Marine Park exists. Such
directions may require a person or class of persons to take or not take specified action
for the purpose of avoiding, mitigating or eliminating the risk. The provisions are
designed as a measure for responding to incidents such as a ship grounding, oil spill or
pontoon breaking loose in a cyclone.
176. Before making a Direction, the Authority must be satisfied that the direction is
necessary and appropriate for the purpose of avoiding, mitigating or eliminating the risk
to the environment of the Marine Park. Where the emergency relates to a vessel, the
Authority must be satisfied that the direction is not inconsistent with Articles III and V
of the International Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties. This, for example, would require directions to be
proportionate to the damage caused or threatened. Directions must be agreed to by the
Minister. Directions have a maximum duration of two months. Item 140 provides for
reconsideration and review by the Administrative Appeals Tribunal of a decision to
make or vary an emergency direction.
177. The power to make Directions is subordinate to the role and powers of the Australian
Maritime Safety Authority (AMSA), as provided for by subsection 8(1C) of the
Protection of the Sea (Powers of Intervention) Act 1981. This recognises the role of
AMSA as the agency with primary responsibility for responding to shipping incidents
in the Marine Park. It is also not intended that the capacity to issue emergency
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directions will in any way interfere with the powers and operations of the Executive
Director of Transport Safety Investigation under the Transport Safety Investigation Act
2003.
178. The item establishes an offence of failing to comply with an Emergency Direction.
Consistent with an equivalent offence under the Protection of the Sea (Powers of
Intervention) Act 1981 (section 19), the following defences are available:
· non-compliance with the direction resulted from a need to save life at sea;
· compliance with the direction was not possible.
These matters are specified as defences as they are issues within the knowledge of the
defendant and would be particularly difficult for the prosecution to establish. Further,
given the context of directions - action to respond to a serious risk to the environment
of the Marine Park - it is appropriate that it be incumbent on the defendant to establish
valid reasons for non-compliance with a direction.
179. The offence applies absolute liability to the circumstance that an emergency direction
applies to a person. This is done as the matter is a jurisdictional element of the offence
- the essence of the offence is a failure to comply with a direction. Directions applying
to individuals must be communicated to the individuals. Directions of more general
application must be publicised on the Authority's website.
180. The item provides that an Emergency Direction is not a legislative instrument for the
purposes of the LI Act. This reflects the nature of the directions and the requirements
applying to the making of directions, which provide controls and protections similar to
those of the LI Act, but in a way that is adapted to the nature of emergency directions.
In particular:
· there are controls around the making of orders, such as the matters that must be
considered and the requirement for Ministerial approval;
· directions applying to an individual must be communicated to that individual;
· directions applying to a class of person must be communicated through the
Authority's website - a location in which persons affected by the order are more
likely to access than the Federal Register of Legislative Instruments;
· directions are of only a short duration - a maximum of two months; and
· internal reconsideration and AAT review of directions is available.
Enforceable directions
181. Item 125 establishes a subdivision empowering the Minister to give an "enforceable
direction" where s/he is satisfied that:
· a person has engaged, is engaging or is likely to engage in conduct constituting an
offence against the GBRMP Act; a contravention of a civil penalty provision of the
GBRMP Act; or breach of the environmental duty (see item 110); and
· it is in the public interest to make a direction for the purpose of ensuring
compliance with the Act and/or preventing, mitigating or repairing environmental
damage that has been, will be or might be caused by the conduct in question.
182. Directions remain in effect for the period set out in the direction, unless set aside by a
Court or revoked by the Minister.
183. A person issued with a direction may request reconsideration by the Minister (this is a
non-delegable function of the Minister). The person may also apply to the Federal
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Court to have the order set aside on the basis that the person did not engage in the
conduct in question, the conduct does not constitute an offence against or contravention
of the GBRMP Act or environmental duty, or the requirements of the direction are not
reasonable for the purpose of ensuring compliance or preventing, repairing or
mitigating environmental damage caused by the conduct in question. External review is
by the Federal Court, rather than the AAT in the first instance, as any review will
involve questions of law. A court is therefore a more appropriate forum for review.
184. Directions can be enforced by the Federal Court. Non-compliance with a direction may
attract a civil penalty of up to 600 penalty units for an individual, 6,000 units for a body
corporate.
185. Enforceable directions provide a strong administrative mechanism for ensuring
compliance with the GBRMP Act, backed up by legal enforceability and the potential
for sanctions. Directions provide a flexible framework through which persons suspected
of breaching the GBRMP Act or environmental duty can be brought into conformity
and/or any detrimental environmental impacts of non-conformity repaired. It is
envisaged that directions will be of particular value in relation to ongoing (rather than
one-off) activities, for example, the operation of a tourist resort and associated tourism
activities.
186. The issuing of a direction in any given circumstance is a matter of discretion. Criminal
prosecution, civil action or another form legal or administrative enforcement will
always remain an option. The decision in any particular case as to what form of
enforcement action is taken will depend on circumstances and will be made
consistently with relevant Australian Government policies and guidelines and agency
enforcement policy.
187. The item provides that an enforceable direction is not a legislative instrument for the
purposes of the LI Act. This provision is declaratory of the law, not an exemption, and
is provided to assist readers. Directions do not fall within the meaning of a "legislative
instrument", as provided by section 5 of the LI Act.
Directions limiting access to the Marine Park
188. Item 125 establishes provisions empowering the Minister to issue a person who has, at
least three times in a ten year period, committed an offence against or contravened a
civil penalty provision of the GBRMP Act, with a direction prohibiting access to the
Marine Park or placing restrictions on that person's entry and use of the Park. Such
directions can have effect for a maximum period of ten years from the date of the most
recent offence/contravention. Item 140 provides for internal reconsideration and AAT
review of a decision to make or vary a direction limiting access to the Marine Park.
189. This provision is designed to enhance deterrence. The Great Barrier Reef is an area of
significant environmental, economic and social value. The GBRMP Act is designed to
protect those values. Persons who repeatedly breach the Act jeopardise the protection
and ecologically sustainable management of the Great Barrier Reef. The capacity to
exclude from or place conditions on use of the Marine Park by repeat offenders is
therefore considered appropriate. The requirement for the three "strikes" to be in a ten
year period, and the maximum duration of a direction of ten years, is designed to reflect
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a similar policy to that of the spent convictions scheme established by the Crimes Act
1914.
190. The item provides that a direction limiting access to the Marine Park is not a legislative
instrument for the purposes of the LI Act. This provision is declaratory of the law, not
an exemption, and is included to assist readers. Directions do not fall within the
meaning of a "legislative instrument", as provided by section 5 of the LI Act.
191. Failure to comply with a direction is an offence carrying a maximum penalty of
500 penalty units (individual). The offence applies absolute liability to the circumstance
that the person has been issued a direction. This is done as the fact the person has been
issued a direction or order is a jurisdictional element of the offence - the essence of the
offence is non-compliance with such a direction. The offence specifies negligence as
the fault element in relation to the result that the person failed to comply with a
direction. In other words, a person may be found guilty if, given the same
circumstances, a "reasonable person" would have complied with the direction.
Application of an objective standard of care through the use of negligence as a fault
element is considered appropriate given the nature of the direction, notably, that it is
issued to a person who has repeatedly breached the GBRMP Act.
Publicising offences and contraventions
192. Item 125 establishes a subdivision empowering the Minister and Authority to publicise
the fact that a person has been convicted of an offence or found to have contravened a
civil penalty provision and the penalty that was imposed. This additional sanction is
intended to enhance deterrence, particularly in relation to commercial Marine Park
users whose marketing includes promotion of an environmentally friendly image.
Injunctions
193. Item 125 establishes a subdivision empowering the Federal and Queensland Supreme
Court to issue prohibitory and mandatory injunctions for the purpose of securing
compliance with the GBRMP Act. The provisions are a re-enactment of section 38N
(repealed by Schedule 6, item 24), with the exception that injunctions may now be
sought in relation to all offences of the GBRMP Act and regulations (previously this
applied only to the offences set out in sections 38-38MC) and in relation to the civil
penalty provisions inserted by this Bill. The provisions have also been updated to
reflect modern drafting practices.
194. Unlike the existing provisions, the re-enacted subdivision allows injunctions to be
sought in the Federal Court and the Queensland Supreme Court, rather than the
supreme court of any state or territory. This reflects the fact that injunctions are
generally sought within Queensland, as this is where the Great Barrier Reef and the
Great Barrier Reef Marine Park Authority are located.
195. Consistent with the current provisions and injunction powers of the EPBC Act, the re-
enacted provisions do not require an undertaking as to damages in relation to an interim
injunction. The rationale for this provision is that requiring such an undertaking may
inappropriately deter the Minister/Authority from acting in the public interest to protect
the Great Barrier Reef.
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Remediation orders
196. Item 125 establishes a subdivision allowing the Federal Court, on the application of the
Minister, to make an order requiring a person that has engaged in conduct constituting
an offence or a contravention of a civil penalty provision of the GBRMP Act, to take
action to prevent, repair or mitigate environmental damage that has been caused by the
conduct. The provisions closely follow equivalent provisions of the EPBC Act (sections
480A - 480C). The provisions will help to ensure that persons contravening the
GBRMP Act can be held responsible for addressing the environmental consequences of
their non-compliance.
Civil penalty provisions
197. Item 125 includes a subdivision establishing a civil penalty regime in the GBRMP Act.
The provisions allow the Authority, on behalf of the Commonwealth, to apply to the
Federal Court for a declaration that a person has contravened a civil penalty provision
of the GBRMP Act, and an order that the person pay a pecuniary penalty. Amendments
elsewhere (notably Schedule 6) establish civil penalty provisions.
198. The provisions establishing the civil penalty regime are generally equivalent to those of
the EPBC Act (sections 481-486D) and include protections against multiple civil, or
both civil and criminal action being taken against a person, consistent with the legal
principle of double jeopardy.
199. The availability of civil penalties adds flexibility in enforcement and is of particular
value in relation to corporate wrongdoing, where criminal prosecution may not provide
appropriate deterrence and punishment. The taking of civil action in any given
circumstance is a matter of discretion. Criminal prosecution or another form of legal or
administrative enforcement will always remain an option. The decision in any
particular case as to what form of enforcement action is taken will depend on
circumstances and will be made consistently with relevant Australian Government
policies and guidelines and agency enforcement policy.
Court order to pay an amount equivalent to avoided charge
200. Item 125 includes provisions allowing a Court to order a person found to have operated
without the necessary permission in the Marine Park to pay a penalty reflecting the
Environmental Management Charge (EMC) that would have been payable, had the
person held the necessary permission. In determining the penalty payable, a Court must
consider not only the particular instance for which the person has been convicted or
ordered to pay a pecuniary penalty, but all instances in which the person engaged in the
conduct in question. For example, if a person has operated five tours without the
necessary permission, but is only prosecuted in relation to one tour, the penalty under
this item should reflect the fact that five tours have been conducted.
201. The provision seeks to enhance deterrence and reduce incentives for illegal activities. It
also reflects the "user pays" policy that underlies the EMC - that is, users of the Marine
Park should contribute to the cost of managing the Park. The EMC is a levy on use of
the Marine Park that contributes to the cost of managing the Marine Park. Certain
operators in the Marine Park (notably tourism operators) are required to pay, or collect
from visitors and pay, an "Environmental Management Charge". Liability to
pay/collect the EMC is a condition of relevant permissions issued under the
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GBRMP Regulations. EMC collected is appropriated to the Authority for the purpose
of performance of its functions. Consistent with this, item 141 provides an
appropriation in relation to amounts paid under the current provision (discussed in
further detail below).
Publicity Order
202. Item 125 includes a provision allowing a Court to order a person it has convicted or
who has been found to have contravened a civil penalty provision, to take action to
publicise the offence or contravention. This additional sanction is expected to provide
enhanced deterrence, particularly in relation to commercial Marine Park users whose
marketing includes an environmentally friendly image.
Infringement Notices
203. Item 125 establishes a subdivision allowing for an infringement notice scheme to be
established by Regulation. This provision is in part a re-enactment of current
subsection 66(n), under which an infringement notice scheme has already been
established through the GBRMP Regulations. The new subdivision expands the range
of offences in relation to which the infringement notice scheme may relate, to include
specified offences in the Act, as well as offences in the regulations - the subject of the
current scheme. Infringement notices are only permitted in relation to strict liability
offences, with a maximum penalty of 60 units. The maximum infringement notice fine
that may be imposed is one-fifth of the maximum penalty for the offence in question.
Evidentiary Matters
204. Item 125 establishes a subdivision dealing with evidentiary matters.
205. The subdivision allows the Chairperson of the Authority to issue evidentiary certificates
in relation to a variety of formal, technical and factual matters that can be asserted with
a high degree of confidence as to their accuracy. Matters in relation to which a
certificate may be issued are as follows:
· that a specified document is a copy of a permission, authority or notice given under
the Act;
· that a person was or was not the holder of a permission at a particular time;
· that a person was given a notice, order or direction;
· that a fee or charge is payable by a particular person;
· that a fee or charge that is payable has not been paid;
· that certain conduct took place in a specified location or area;
· that a specified location or area is within the Marine Park or a particular zone;
· that Vessel Monitoring System data shows that a vessel was in a particular location
or area at a particular point in time and/or was travelling a specified speed.
206. In any proceedings to enforce the Act, a certificate is prima facie evidence of the
matters specified in the certificate. The defendant may cross-examine the Chairperson
on the content of a certificate. The matters that may be the subject of a certificate are of
a nature that do not relate to the fault element of any offence.
207. The availability of evidentiary certificates and the associated evidentiary effect is
considered appropriate for the following reasons.
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· Paragraphs (a)-(e) of new section 61AMA are matters relating to administration of
the GBRMP Act, for example, that a person holds a permission granted under the
Act, was issued an order under the Act, owes a fee in connection with an
application etc. These are simple factual matters that, for all relevant offences, need
to be established as a formality. In many cases, the matter relates to a strict or
absolute liability element of an offence and it is unlikely that a defendant would
seek to dispute the matters. Proving the matter in court via conventional evidentiary
means would likely involve calling the Chairperson of the Authority, who would
essentially state the issues that would, using the proposed provision, be set out in a
certificate. The provisions therefore allow formalities to be established without the
need for a witness to be called. The item allows the defendant to cross-examine the
Chairperson regarding the content of the certificate.
· Paragraph (f) of section 61AMA reflects current GBRMP Act section 62 - which
allows an averment in relation to location. Paragraphs (g) and (h) are similar
provisions that allow a certificate stating that Vessel Monitoring System data shows
a vessel to be in a particular location at a particular time. Such provisions are not
uncommon - e.g. Fisheries Management Act 1991 section 166, Torres Strait
Fisheries Act 1984 section 58. Location can be asserted with a high degree of
accuracy and confidence given Global Positioning System and Vessel Monitoring
System data. Allowing evidentiary certificates avoids the need to establish the
accuracy of such data in every trial, which requires expert witnesses and adds
significant time and expense to prosecutions (e.g. expert witness costs). It also
avoids the need for field officers to travel from the sometime quite remote areas of
the Great Barrier Reef to appear as a witness. All relevant information can instead
be collected in a certificate and presented to the Court. The defendant may elect to
cross-examine the Chairperson regarding the content of the certificate.
208. The subdivision includes a further provision relating to commercial fishing offences. It
establishes a presumption that all fish found in the possession of a person at the time
they are apprehended are deemed to have been taken in contravention of the Act. The
provision is necessary as it is highly difficult, if not impossible, to establish which fish
on board a vessel at the time it is found fishing in an area where fishing is not permitted
have been taken illegally. Some or all fish could have, for example, been taken outside
of the area in question. Knowledge of where fish have been taken from will generally
be entirely within the knowledge of the defendant. It is difficult, if not impossible, to
prove that particular fish have been taken from an area where fishing is prohibited. It
may be the case that some fish have been taken legally and others illegally. This creates
two problems:
· Liability for unlawful seizure - seizure provisions only allow for the seizure of items
involved in the commission of an offence/contravention of a civil penalty provision.
As it is near impossible to prove that particular fish have been taken illegally, it is
difficult to confidently seize fish, given potential liability if fish are seized without
sufficient power. Seizure of fish for evidentiary purposes aids in prosecuting
offences and securing appropriate penalties.
· Inadequate deterrence - illegal fishing is a significant pressure on the Great Barrier
Reef. There are strong incentives to illegally fish given generally higher catch rates
in areas closed to fishing. To date, maximum fines ordered for fishing contrary to
the GBRMP Act are approximately $40,000 for trawling and approximately
$35,000 for line fishing. Commercial fishing boats, on a single trip, can and
generally do catch product in excess of these amounts, and boats operating illegally
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are likely to catch more fish in a shorter space of time than those operating legally.
An effective capacity to seek forfeiture of fish (or application of the Proceeds of
Crime Act 2004) is therefore necessary to ensure appropriate deterrence is provided.
209. The deeming provision would address these issues, as well as providing significant
deterrence for illegal behaviour that is a key pressure on the Great Barrier Reef. Such
provisions are not uncommon - the Fisheries Management Act 1991 is an example.
State fisheries legislation also generally includes similar provisions.
Conduct of directors, employees and agents
210. Item 125 establishes a new subdivision dealing with corporate criminal and civil
liability. The subdivision is a re-enactment of current section 64 of the GBRMP Act,
with some minor changes. These changes better align provisions with the EPBC Act
(section 498B), with some differences in the factors to which a Court must have regard
in determining whether a body corporate took reasonable precautions and exercised due
diligence to avoid the conduct in question. The changes will help ensure that courts will
find corporations liable in appropriate circumstances and encourage environmental
awareness and good environmental management practices by corporations.
211. The subdivision provides an alternative regime for inferring corporate liability to that of
the Criminal Code Part 2.5. The key difference in approach is the requirement for
corporations to exercise reasonable precautions and due diligence. As above, this
alternative approach is adopted as it encourages environmental awareness and good
environmental management practices by corporations, and for this reason, is a feature
of other environmental legislation (e.g. the EPBC Act). Further, the subdivision applies
to both criminal and civil liability, whereas the Criminal Code provisions apply only to
criminal liability.
Liability of executive officers of bodies corporate
212. Item 125 establishes a subdivision providing for the civil and criminal liability of the
executive officers of bodies corporate for offences and contraventions perpetrated by
the body corporate for which they are responsible. The provisions reflect those of the
EPBC Act (sections 493-496). The potential for executives of bodies corporate to be
personally liable "lifts the corporate cloak" in appropriate circumstances, thereby
providing an important deterrence mechanism and encouraging good environmental
management practices by those responsible for managing corporations. Under the
subdivision, liability of an executive officer is dependent, firstly, on proof of a principal
contravention by the corporation. It must then be shown that the executive officer knew
or was reckless (or negligent in the case of a civil penalty provision) as to whether the
contravention would occur, was in a position to influence the conduct of the
corporation and failed to take reasonable steps to prevent the contravention. The
subdivision sets out the factors a court must consider in determining whether an
executive officer took reasonable steps - essentially, that the body, under the executive
officer's control, took steps to regularly assess and manage risks. These requirements
establish important constraints on accessorial liability of executive officers.
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Powers of the Federal Court
213. Item 125 includes a provision clarifying that the powers conferred on the Court by the
new enforcement part of the Act are additional to, and do not limit, any other powers of
the Court.
Items 126-129 - Restoration of the Environment
214. These items amend section 61A, which empowers the Minister to take action to repair,
mitigate and prevent environmental harm arising from an offence against the Act. The
items expand the provision to also apply to environmental harm resulting from
contravention of a civil penalty provision, update a cross reference and remove
provisions made redundant by other changes made by this Bill.
Items 130-138 - Liability for expenses of the Commonwealth and Authority have
incurred as a result of a civil penalty contravention
215. These items amend sections 61B and 61C, under which a person convicted of an
offence against the GBRMP Act can be found liable for expenses and other liabilities
incurred by the Commonwealth and the Authority as a result of the offence. The items
expand the provision to also apply to expenses and other liabilities resulting from a
civil penalty contravention. The provision complements section 61A, which empowers
the Minister to take action to repair, mitigate and prevent environmental harm arising
from a breach of the Act. Section 61B allows the Commonwealth and Authority to
(among other things) recover the costs of taking such action.
Item 139 - Repeal of Section 62 (averments)
216. This item repeals section 62, which allows for a prosecutor to make an averment in
relation to certain matters. Item 125 establishes a capacity to issue evidentiary
certificates in relation to the same matters. The capacity to make averments is therefore
no longer necessary.
Item 140- Reconsideration and review of decisions
217. This item provides for internal reconsideration and AAT review of certain decisions
made by the Minister and Authority under the GBRMP Act. The item specifically
identifies emergency directions and directions limiting access to the Marine Park as
decisions reviewable under the provision. Regulations may prescribe other decisions as
subject to reconsideration and review.
218. Procedures for internal reconsideration and AAT review will be set out in regulations.
The GBRMP Regulations provide for reconsideration and AAT review of certain
decisions made under the Regulations. The intention is to also apply those procedures
to relevant decisions made under the Act, so that common processes apply.
219. The item also establishes a new Part IX - Miscellaneous, and repeals section 64, which
relates to corporate liability and the conduct of directors, servants and agents of
corporations. The provisions are replaced by item 125, with minor changes.
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Item 141 - Appropriation of the Consolidated Revenue Fund in relation to
Environmental Management Charge receipts and payments
220. This item provides an appropriation in relation to receipts and payments related to the
Environmental Management Charge (EMC) scheme. For the most part, the provision is
a consolidation of existing appropriations currently provided by section 39I, subsection
38K(4) and subsection 39PA(3), which are repealed by items 111 and 112.
Consolidation within a single appropriation provision is intended to enhance
transparency and accountability in relation to standing appropriations provided by the
GBRMP Act.
221. The item also establishes a new appropriation. Item 125 establishes a capacity for a
court to order a person found to have operated without the necessary permission in the
Marine Park to pay a penalty reflecting the EMC that would have been payable had the
person held the necessary permission. The current item provides an appropriation such
that any amount a Court orders a person to pay will be made available to the Authority
for the purpose of performance of the Authority's functions. This approach is consistent
with the nature of the EMC scheme. The EMC is a levy on use of the Marine Park,
which contributes to the cost of managing the Marine Park. As with the existing
standing appropriations discussed above, an appropriation relating to court-ordered
penalties to pay an amount in lieu of EMC avoided ensures that such funds are used for
park management purposes.
Items 142-146 - Regulation-making powers
222. Item 145 establishes four new matters in relation to which regulations may be made:
· the use of Vessel Monitoring Systems (VMS) on vessels in the Marine Park and the
disclosure and use of VMS data;
· the regulation of fishing in the Marine Park;
· the regulation of camping and other activities on islands within the Marine Park;
and
· the protection and conservation of protected species within the Marine Park.
223. The capacity to establish regulations in relation to the above issues is necessary and
appropriate for carrying out and giving effect to the Act, which has among its objects
the long-term protection of the environment and biodiversity values of the Great Barrier
Reef Region and the ecologically sustainable use of the Region. It is most likely the
case that the current regulation making power of the GBRMP Act (section 66) already
provides power in relation to the above matters. The provisions are to make it clear that
the capacity exists.
224. Item 143 repeals paragraph 66(2)(n), which allows for establishment of an infringement
notice regime through regulations. Item 125 re-enacts this power, with some changes,
in a separate subdivision of the Act.
225. Items 142 and 146 are of a technical nature. Item 146 establishes new subsections
66(2A) and 66(2B), which are a re-enactment of subsections 38(3A) and (3B) (repealed
by Schedule 6). The provisions provide regulation-making powers in relation to the
management of the discharge of sewage from vessels in the Marine Park. The repeal
and re-enactment is a part of restructuring and clarifying the Act.
Page 49 of 73
Part 3 - Transitional, application and saving provisions
Item 147 - Section 42 of the Great Barrier Reef Marine Park Act 1975
226. This item is a consequence of changes to section 42 of the GBRMP Act. Item 122
replaces that section with a new section of similar, but extended, effect. The section,
both now and as amended, allows the Australian Government and the Authority to enter
into arrangements with the Queensland Government and Australian Government
agencies (respectively), under which persons or classes of persons perform functions
and/or exercise powers under the GBRMP Act. The current item ensures that any such
arrangements in place prior to the amendments continue to have effect as if they were
made under the new section 42.
Item 148 - Section 46D of the Great Barrier Reef Marine Park Act 1975
227. This item is a consequence of the repeal of section 46D, which relates to the retention
of things seized under section 46A and 46B. The item provides that, despite the repeal
of section 46D, the section continues to apply in relation to an item seized prior to
commencement.
Item 149 - Section 47 of the Great Barrier Reef Marine Park Act 1975
228. This item is a consequence of the repeal of section 47 of the GBRMP Act. That section
provides for the seizure, release and forfeiture of items an inspector reasonably believes
have been involved in the commission of an offence. The current item provides that the
requirements of section 47 continue to apply to items seized prior to commencement of
the amendments.
Item 150 - Section 47B of the Great Barrier Reef Marine Park Act 1975
229. This item is a consequence of the repeal of section 47B of the GBRMP Act and
enactment of an equivalent provision in the EPBC Act. Section 47B allows an inspector
to direct a person to deliver an item that may be seized. The current item provides that,
where an inspector was empowered to issue such a direction pursuant to section 47B
immediately before commencement, such a direction can be made under the new
EPBC Act provision. This ensures the amendments do not affect the eligibility for
seizure of any items.
Item 151 - Section 48AB of the Great Barrier Reef Marine Park Act 1975
230. This item is a consequence of the repeal of section 48AB, which relates to the seizure
of weapons or other things capable of causing harm or facilitating escape. The item
provides that, despite the repeal of section 48AB, the section continues to apply in
relation to an item seized prior to commencement.
Item 152 - Directions limiting access to the Marine Park
231. This item is a consequence of item 125, which empowers the Minister to make a
direction limiting access to the Marine Park by persons who have, on three or more
occasions, contravened the GBRMP Act. A contravention that is more than ten years
old does not count. The current item clarifies that this power to issue directions exists in
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relation to offences and contraventions that occurred prior to commencement of the
amendments. This provision does not establish liability retrospectively, but does have
retroactive application in that it potentially attaches new consequences to past
behaviour. This is considered appropriate given the context. The power to issue
directions can only be exercised where a person has three or more "strikes" against
their name and the Minister considers it appropriate having regard to the nature of the
conduct constituting the strikes and the objects of protecting the environment of the
Marine Park and preventing future non-compliance. Directions are contemplated as a
means of dealing with repeat and recalcitrant offenders. This capacity would be
compromised if persons who have already breached the Act are given a "clean slate" at
the time of commencement.
Item 153 - Delegations under section 61 of the Great Barrier Reef Marine Park Act 1975
232. This item is a consequence of the repeal of section 61 and its replacement by a new
delegations provision (see item 122). The item provides that delegations in place under
section 61 at the time of commencement continue in force as if it had been made under
the new, general delegations power.
Item 154 - Delegations under subsection 61A(3) of the Great Barrier Reef Marine Park
Act 1975
233. This item is a consequence of the repeal of subsections 61A(3) and (4) and their
replacement by a general delegations provision (see item 122). The item provides that
delegations in place at the time of commencement under the subsections continues in
force as if it had been made under the new, general delegations power.
Item 155 - Averments under section 62 of the Great Barrier Reef Marine Park Act 1975
234. This item is a consequence of the repeal of section 62 of the GBRMP Act (item 139).
That section allows for the making of averments in relation to particular matters. The
current item provides that an averment made prior to commencement continues in
effect, despite the repeal of section 62.
Item 156 - Section 64 of the Great Barrier Reef Marine Park Act 1975
235. This item is a consequence of the repeal of section 64 of the GBRMP Act. That section
relates to corporate liability for the actions of directors, servants and agents of a
corporation. An equivalent provision is re-enacted by item 125. The current item
provides that section 64 continues to apply in relation to conduct engaged in prior to
commencement. This ensures that there are no "gaps" in provisions relating to
corporate liability as a result of the amendments.
Item 157 - Regulations in relation to infringement notices
236. This item is a consequence of the repeal of paragraph 66(2)(n) of the GBRMP Act.
That paragraph provides for the making of regulations establishing an infringement
notice regime. The Bill establishes a new division providing for regulations relating to
infringement notices. The current item ensures the validity of the current infringement
notice regime established under the regulations is unaffected by the amendments.
Page 51 of 73
SCHEDULE 6 - OFFENCES AND CIVIL PENALTIES
GENERAL OVERVIEW
Schedule 6 makes a number of changes to existing offence provisions of the GBRMP Act
and establishes equivalent civil penalty provisions for most of those offences. The changes:
· Distinguish conduct constituting an offence/contravention on the basis of factors such
as culpability and the environmental harm caused, and apply differing penalties as
appropriate.
· Amend the structure and wording of offences so as to clarify the matters that need to
be established in order to prove the offence.
· In appropriate circumstances, apply fault elements that vary from the defaults
established by the Criminal Code 1995, for example, negligence and strict and
absolute liability.
· Adjust penalty levels to ensure maximum possible penalties are neither too lenient
nor too harsh.
· Consolidate and rationalise a number of existing offences.
The schedule also extends existing vicarious and collective liability provisions in order to
recognise, in appropriate circumstances:
· The responsibility of persons holding a license to carry out or be in charge of
commercial fishing for the activities carried out by others pursuant to that license.
· The responsibility of permission holders for the activities carried out by others
pursuant to the permission under the authority of the permission holder.
The schedule establishes new offences as follows:
· Operation of a commercial fishing vessel in a zone where fishing is not permitted,
except for the purposes of transiting, anchoring, in an emergency or as a result of an
accident.
· A false or misleading representation concerning a person's liability to pay a fee, tax,
levy or other charge in connection with entry and use of the Marine Park.
NOTES ON INDIVIDUAL CLAUSES
Part 1 - Amendments
Great Barrier Reef Marine Park Act 1975
Items 1-22 - Definitions
237. These items define or amend existing definitions of the following terms:
· aggravated contravention - see item 24, which establishes a class of "aggravated
contraventions".
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· aggravated offence - see item 24, which establishes a class of "aggravated offences".
· Australian resident - this term is defined consistently with the EPBC Act, schedule 1.
· conduct - this term is defined by reference to the Criminal Code 1995.
· discharge - this moves the existing definition given by the GBRMP Act section 38J
into the interpretation section.
· dory - this term is defined consistently with the GBRMP Regulations.
· engage in conduct - this term defined by reference to the Criminal Code 1995.
· fish - this moves the existing definition given by the GBRMP Act section 38CA into
the interpretation section.
· fishing - this moves the existing definition given by the GBRMP Act section 38CA
into the interpretation section.
· minerals - this term is defined consistently with other legislation and is defined to
include oil and natural gas.
· mining operations - this term is defined consistently with the EPBC Act, with some
changes reflecting differences between the context and objectives of the GBRMP Act
and that of the EPBC Act. The term is defined to include prospecting and exploring
for, as well as recovery of, minerals. It replaces the term "operations for the recovery
of minerals".
· Owner - this clarifies that the definition of "owner" relates to the owner of a vessel.
The items also provide that the owner of a vessel can include (where applicable) the
person registered as the owner under a law of a state or territory (as well as under
Commonwealth law or on a foreign register of ships).
· primary commercial fishing vessel - this term is defined consistently with the
GBRMP Regulations.
· prohibited - this term defines conduct that is "prohibited" under a zoning plan for the
purposes of relevant offence provisions.
· protected species - this term is defined consistently with the Great Barrier Reef
Marine Park Zoning Plan 2003, and includes species protected under the EPBC Act,
relevant Queensland legislation and other species identified by the
GBRMP Regulations.
· reef - this moves the existing definition given by GBRMP Act section 38CA into the
interpretation section.
· take - this term is defined consistently with its meaning under the Great Barrier Reef
Marine Park Zoning Plan 2003.
· territorial sea - this term is defined by reference to the Seas and Submerged Lands
Act 1973.
· waste - this moves the existing definition given by GBRMP Act section 38J into the
interpretation section. The definition reflects the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983.
Item 23 - Subsection 3A(10): updating a cross reference
238. This item is of a technical nature. It updates a cross reference as a consequence of other
amendments made by the schedule.
Item 24 - Offence and civil penalty provisions
239. This item repeals sections 38A to 39, which mostly establish offences. All the offences
repealed are re-enacted by the item, with some consolidation, changes and additions,
along with the creation of equivalent civil penalty provisions for many of the offences.
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Sections 38N and 39, also repealed by this item, are re-enacted elsewhere (Schedules 5
and 4, respectively).
240. Each offence and civil penalty provision established by the schedule is discussed
below, following an explanation of strict liability provisions that apply in common to a
number of offences in the schedule.
Strict liability - Deemed awareness of the Marine Park, its zones and the restrictions on use
that apply
241. Offences in the schedule apply strict liability to the circumstance that conduct:
· was carried out in the Great Barrier Reef Region (38AA);
· was carried out in a zone (38BA(1)(b), BD(b));
· is not permitted in a zone under a zoning plan (38BA(1)(c), 38BD(d));
· is not permitted under a zoning plan unless notice is first given to a specified body
(38BC);
· was carried out in an unzoned area of the Marine Park (38CA(2)); and
· occurred or was carried out in the Marine Park (38DA(1)(b); 38DD(1)(b)).
242. These provisions all reflect a common principle that it should be incumbent on users of
the Great Barrier Reef to be aware of:
· the existence of the Great Barrier Reef Region, the Marine Park and its zones;
· their location in relation to those areas; and
· the restrictions on use that apply as a consequence of an area being a part of the
Region, Park or a zone.
243. This approach is taken having considered the Senate Scrutiny of Bills Committee Sixth
Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth
Legislation, as well as the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers, issued by authority of the Minister for Justice and Customs.
Having regard to these documents, strict liability is proposed as it:
· ensures the integrity of the regulatory regime in place to protect the Great Barrier
Reef;
· overcomes problems of proof that would otherwise make the regulatory regime
particularly difficult to enforce; and
· overcomes a "knowledge of the law" problem.
244. The existence of the Great Barrier Reef Region, Marine Park and zoning plan for the
Marine Park is fundamental to and underpins regulation and management of the Great
Barrier Reef. The fact that an area is part of the Region, Park or a zone is the
framework from which regulatory and management arrangements arise. The boundaries
and activities allowed within the Region, Park and its zones are widely publicised, for
example, through the free distribution of maps and guides to the activities permitted in
particular areas, signposting and other educational measures. Zoning is in place for at
least seven years and changes are made through processes involving significant public
involvement. In this context, making it incumbent on Marine Park users to be aware of
the existence of the Region, Park and zones, their location in relation to those areas and
the rules that apply is reasonable and essential to the integrity of the regulatory regime
in place to protect the Great Barrier Reef.
Page 54 of 73
245. Proving to a Court that a defendant did not know or was reckless to the fact that an area
was a part of the Great Barrier Reef Region, Marine Park or a zone, that they were
within such an area and/or that that the conduct they have engaged in is not permitted in
that area is problematic. Such matters are within the knowledge of the defendant alone,
and proving the contrary beyond a reasonable doubt would require significant and
difficult to obtain indirect and circumstantial evidence.
246. The fact that an area is part of the Great Barrier Reef Region, Marine Park or a zone of
the Marine Park and the restrictions on use that consequently apply forms a part of the
law. The Region is defined by the GBRMP Act. The Marine Park is established through
proclamations, which are legislative instruments for the purposes of the LI Act - that is,
they determine the content of the law and impose obligations and create rights (see
LI Act section 7). Similarly, zoning is established by a zoning plan, which is also a
legislative instrument. Allowing people to escape conviction because they were
unaware of these legal requirements would allow ignorance of the law to be used as an
excuse for criminal behaviour.
247. In applying strict liability to the offence elements identified above, it is not intended to
provide for the defence of honest and reasonable mistake of fact to be used in a way
that allows ignorance of the law to be an excuse for criminal behaviour, for example, a
mistake as to the legal delineation of zones and the activities permitted within zones.
Strict liability - conduct authorised by a permission
248. The offences in 38AA, 38BA, 38BD and 38DD apply strict liability to the circumstance
that the defendant was authorised to engage in the conduct in question by a permission
granted under the GBRMP Regulations. This is proposed having considered the Senate
Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and Strict
Liability Offences in Commonwealth Legislation, as well as the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers, issued by authority
of the Minister for Justice and Customs. Having regard to these documents, the use of
strict liability is considered appropriate as it:
· is necessary to ensure the integrity of the regulatory regime;
· overcomes problems of proof that would otherwise make the regulatory regime
particularly difficult to enforce; and
· overcomes a "knowledge of the law" problem.
249. The permission system is integral to regulation of the Marine Park and Great Barrier
Reef Region. Activities are subject to permission requirements where they have the
potential to have impacts of consequence on the environment. The conditions attached
to permissions are directed at ensuring that the impacts of the permitted activity are
acceptable, for example, by requiring activities to be done in a certain manner. In this
context, it is essential to the integrity of the regulatory regime that it is incumbent on
users of the Park and Region to be aware of permit requirements and, if they hold a
permission, the activities they are authorised to undertake. Further, as the requirement
for a permission and the activities authorised by a particular permission are matters of
law, the use of strict liability overcomes a "knowledge of law" problem (i.e. it ensures
ignorance of law cannot be used as an excuse).
250. Proving to a Court that a defendant did not know or was reckless to the fact that they
were not authorised by a permission to engage in conduct is problematic. These matters
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are within the knowledge of the defendant alone, and proving the contrary beyond
reasonable doubt would require significant and difficult to obtain indirect and
circumstantial evidence.
Mining operations in the Great Barrier Reef Region (38AA & 38AB)
251. The item re-enacts, with some changes, current section 38 and establishes an equivalent
civil penalty provision. As with the current section 38, the provisions prohibit mining
operations. "Mining operations" is defined to include prospecting or exploring for, as
well as recovery of, minerals (see item 11).
252. As with the current section 38, the offence and civil penalty provision do not apply
where the defendant is authorised to carry out the operations by a permission granted
under the GBRMP Regulations. The Authority may not issue a permission authorising
mining operations unless those operations are for the purpose of research or
investigations relevant to the conservation of the Marine Park. The intention is that
commercial mining and petroleum and gas recovery is prohibited absolutely in the
Great Barrier Reef Region.
253. The re-enacted prohibition applies to mining operations within the Great Barrier Reef
Region (as defined in the Act). This consolidates the existing section 38, which
prohibits mining operations in the Marine Park, and the Great Barrier Reef Region
(Prohibition of Mining) Regulations 1999, which prohibit mining in areas of the Great
Barrier Reef Region that are not a part of the Marine Park. The regulations will be
repealed.
254. The maximum penalty for the offence of carrying out mining operations in the Great
Barrier Reef Region is increased from 500 penalty units to 1,000 penalty units. There is
also provision for an "aggravated offence" carrying a maximum penalty of three years
imprisonment, 2,000 penalty units or both. Aggravated offences are discussed in greater
detail below (see 38GA). The civil penalty equivalent of the offence carries a maximum
penalty of 2,000 penalty units for an individual and 20,000 penalty units for a body
corporate. There is also provision for an "aggravated contravention", carrying a
maximum penalty of 5,000 penalty units for an individual and 50,000 penalty units for
a body corporate. Aggravated contraventions are discussed in greater detail below (see
38GB).
255. The offence includes a number of strict liability elements. The approach reflects general
principles applied to a number of offences in the schedule and is discussed in greater
detail above.
Conduct in Marine Park Zones (38BA & 38BB)
256. The item re-enacts, with some changes, sections 38A-38CC and 38M-38MB, and
establishes an equivalent civil penalty provision. The provisions prohibit conduct that is
not allowed under a zoning plan (see definition of "prohibited", item 15), or is only
allowed with a permission and no such permission is held.
257. The provisions significantly rationalise existing offences. This is done firstly by
consolidating currently separate offences relating to conduct that is prohibited
absolutely and conduct that is allowed only with a permission and no permission is
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held. Secondly, the provisions consolidate currently separate offences relating to
fishing, shipping and other forms of conduct through the establishment of "aggravated
offences" and "aggravated contraventions", which are discussed below.
258. The offence includes a number of strict liability elements. The approach reflects general
principles applied to a number of offences in the schedule and is discussed in greater
detail above.
259. The offence of conduct contrary to a zoning plan does not apply where circumstances
prescribed by regulations exist. The circumstances prescribed must relate to conduct
engaged in within 120 days of commencement of a zoning plan or a change to a zoning
plan, or to conduct after that time where a person has applied for a permission. This
regulation-making capacity reflects current subsection 38B(2), and provides a
mechanism for transitional arrangements where a new or amended zoning plan imposes
a requirement to hold a permission to undertake a particular activities in a particular
location, where no such requirement previously existed. Under regulations currently in
place for the purposes of the provision, where a person was lawfully carrying out an
activity without a permission in a particular location, and a new or amended zoning
plan introduces a requirement for a permission for that activity, that person has 120
days to apply for a permission (or cease the activity). The defendant bears the evidential
burden in relation to this matter. Reversal of the burden of proof is considered
appropriate as the fact that a person, before the introduction or amendment of a zoning
plan, undertook particular activities in a particular location is a matter within the
knowledge of that person, would be difficult for the prosecution to establish and is
unlikely to be of relevance to the majority of offences prosecuted. Framing as a defence
has the effect that the defendant will be required to adduce evidence of the matter. If
sufficient evidence is presented, the prosecutor would then need to refute the assertion
that the defence is made out beyond reasonable doubt (see Criminal Code section 13.1).
260. The offence provisions increase maximum penalties for some offences. The maximum
"base" penalty is now 1,000 units. For an "aggravated offence", the maximum penalty
is three years imprisonment, 2,000 units, or both. Aggravated offences are discussed in
greater detail below (see 38GA). The civil penalty equivalent of the offence carries a
maximum penalty of 2,000 penalty units for an individual and 20,000 penalty units for
a body corporate. For an "aggravated contravention", the maximum penalty is 5,000
penalty units for an individual and 50,000 penalty units for a body corporate.
Aggravated contraventions are discussed in greater detail below (see 38GB).
261. Consistent with current section 38A, the item re-enacts a strict liability version of the
offence prohibiting conduct not allowed under a zoning plan, or allowed only with a
permission and no such permission is held. A strict liability offence is proposed having
considered the Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of
Absolute and Strict Liability Offences in Commonwealth Legislation, as well as the
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers,
issued by authority of the Minister for Justice and Customs. Having regard to these
documents, the offence is considered appropriate as:
· There are legitimate grounds for penalising persons lacking fault.
· It will enhance the effectiveness and efficiency of the overall enforcement regime.
· The maximum penalty is 60 penalty units for an individual (300 units for a body
corporate).
Page 57 of 73
262. The zoning plan is fundamental to and underpins regulation and management of the
Great Barrier Reef Marine Park. It is the primary mechanism through which use of the
Marine Park is regulated and managed. The development of zoning plans involves
significant public consultation, and zoning is widely publicised, for example, through
the free distribution of maps showing zones and providing a guide to the activities
permitted in each zone. In this context, making it incumbent on Marine Park users to be
aware of zoning plan requirements, and guard against contravening behaviour, is
reasonable and essential to the integrity of the regulatory regime.
263. The availability of a strict liability offence will enhance the effectiveness and efficiency
of the enforcement regime by providing a broader spectrum of enforcement options. It
will allow minor and "clear cut" contraventions to be dealt with expeditiously, with a
penalty more suited to the nature of the contravention. Further, Schedule 5, item 125
allows regulations to make provision for infringement notices to be issued in relation to
the strict liability offence. The availability of infringement notices provides yet a
further enforcement option that can be used in relation to minor offences, where the
immediate imposition of a penalty would enhance deterrence and the efficiency of
enforcement.
Conduct without required notice (38BC)
264. The item re-enacts section 38D, providing an offence of failing to comply with a
requirement of a zoning plan to notify the Authority (or other specified body) before
carrying out a particular activity. The offence is restructured to provide greater clarity
as to the elements of the offence. The maximum penalty is unchanged from the current
section 38D at 200 penalty units (individual).
265. Strict liability is applied to one element of the offence. The approach reflects general
principles applied to a number of offences in the schedule and is discussed in greater
detail above.
266. In line with the current section 38D, the re-enacted offence specifies negligence as the
fault element for the circumstance that the person failed to give the required notice
before carrying out conduct. In other words, a person may be found guilty if, given the
same circumstances, a "reasonable person" would have given the required notice.
Application of negligence rather than recklessness (the default fault element under the
Criminal Code) is considered appropriate because recklessness requires awareness of
the circumstance, which, for the current offence, would require awareness of the
requirement to notify. This would be inconsistent with the application of strict liability
(discussed above), which has the effect that a person need not be shown to have known
or have been reckless as to the fact that the conduct in question can only be undertaken
after giving notice.
Operation of a fishing vessel in a zone where fishing is not permitted (38BD)
267. The item establishes a new offence related to the operation of a primary commercial
fishing vessel in a zone where fishing is not permitted. The offence recognises that
commercial fishing vessels have a legitimate need to enter zones where fishing is not
permitted for the purposes of transiting, anchoring, in an emergency or as a result of an
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unavoidable accident. Entry in other circumstances is prohibited by the offence. A
maximum penalty of 500 penalty units (for an individual) applies.
268. The offence aims to increase the efficiency and effectiveness of enforcement and adopt
a precautionary approach to regulation of the Great Barrier Reef. Illegal commercial
fishing is a key pressure on the Great Barrier Reef and has the potential to undermine
realisation of the environmental, economic and social benefits of closing areas to
fishing through zoning. The approach of allowing entry into zones where fishing is not
permitted only for the purposes of transiting, anchoring or in an emergency is
consistent with the management of marine protected areas established under the
EPBC Act, and in relation to areas closed to fishing in some Commonwealth fisheries
managed under the Fisheries Management Act 1991.
269. The offence does not apply if the zone was entered for the purpose of transiting through
the zone, anchoring, or transiting to and from a position in which the vessel is
anchored. In this context, a vessel is only taken to be transiting if it is taking the most
direct practicable route through the zone to its destination or to and from a position
where the vessel is anchored, travelling at a speed of five knots or more. The defendant
bears the evidential burden in relation to the matter of whether the vessel is transiting.
Reversal of the burden of proof in this manner is considered appropriate, as the manner
in which a vessel is operated, and the intentions of the vessel operator to travel to a
particular destination or anchor in a particular area are within the knowledge of the
defendant. It would be highly difficult and impractical for the prosecution to obtain and
adduce evidence of these matters. Framing as a defence has the effect that the defendant
will be required to adduce evidence of the matter. If sufficient evidence is presented,
the prosecutor would then need to refute the assertion that the defence is made out
beyond reasonable doubt (see Criminal Code section 13.1).
270. The offence also does not apply if operation of the vessel in the zone was reasonably
necessary for the purpose of dealing with an emergency presenting a serious risk to
safety, or a result of an unavoidable accident not caused by reckless or negligent
behaviour. The defendant bears the evidential burden in relation to these matters.
Reversal of the burden of proof in this manner is considered appropriate as the
existence of an emergency or occurrence of an accident, the actions the vessel operator
took in response and the rationale for doing so are within the knowledge of the
defendant. It would be highly difficult and impractical for the prosecution to obtain and
adduce evidence of these matters and doing so would not be of relevance to the large
majority of offences prosecuted. Framing as a defence requires the defendant to put
forward adequate evidence that the operation of the vessel was a result of an emergency
or unavoidable accident. It would then be for the prosecution to refute that evidence
beyond reasonable doubt (see Criminal Code section 13.1). In order for this defence of
emergency or unavoidable accident to be available, the operator of the vessel must have
notified the Authority of the matter within 48 hours of it occurring. This provides scope
for the incident to be verified, if appropriate.
271. The offence includes strict liability elements. The approach reflects general principles
applied to a number of offences in the schedule and is discussed in greater detail above.
272. The offence establishes absolute liability in relation to the elements that the vessel in
question is an Australian vessel and is authorised by law to fish using a particular
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fishing method or particular fishing apparatus. Absolute liability is applied as the
matters are jurisdictional - the essence of the offence is that a fishing vessel to which
the provision applies (i.e. an Australian vessel) has entered a zone where fishing of the
sort carried out by the vessel (e.g. trawling, line fishing) is not permitted.
Conduct in an unzoned area of the Marine Park (38CA & 38CB)
273. The item re-enacts, with some changes, current section 38F and establishes an
equivalent civil penalty provision. The provisions prohibit certain conduct in unzoned
areas of the Marine Park. The nature of the conduct that is prohibited is unchanged
from current section 38F.
274. The re-enacted offence increases the maximum "base" penalty to 1,000 penalty units.
For an "aggravated offence", the maximum penalty is 3 years imprisonment,
2,000 penalty units, or both. Aggravated offences are discussed in greater detail below
(see 38GA). The civil penalty provision equivalent of the offence carries a "base"
maximum penalty of 2,000 penalty units for an individual and 20,000 penalty units for
a body corporate. For an "aggravated contravention", the maximum penalty is 5,000
penalty units for an individual and 50,000 penalty units for a body corporate.
Aggravated contraventions are discussed in greater detail below (see 38GB).
275. The offence includes strict liability elements. The approach reflects general principles
applied to a number of offences in the schedule and which are discussed in greater
detail above.
Vessels causing damage to the Marine Park (38DA & 38DB)
276. The item re-enacts current section 38MC and establishes an equivalent civil penalty
provision. The provisions prohibit the causing of damage to the environment of the
Marine Park through operation of a vessel.
277. The penalty for the offence provision is changed from a maximum of 2,000 penalty
units, to a maximum, for an aggravated offence (see 38GA), of three years
imprisonment, 2,000 penalty units, or both (for an individual). A non-aggravated
offence carries a maximum penalty of 1,000 penalty units (for an individual). The
maximum penalty for the new civil penalty provision is 2,000 penalty units for an
individual, 5,000 penalty units for a body corporate. For an aggravated contravention
(see 38GB), the maximum penalty is 20,000 penalty units for an individual and
50,000 penalty units for a body corporate.
278. As with current section 38MC, the offence requires negligence as to the circumstance
that the operation of a vessel results in, or is likely to result in damage to the
environment of the Marine Park. This reflects the potential for serious environmental
harm to be caused to the sensitive environment of the Great Barrier Reef through
operation of a vessel, which may, for example, result in grounding on and destruction
of a reef, or an oil spill. Given the potential consequences, negligence is applied so that
vessel operators are required to exercise due diligence. More specifically, vessel
operators may be liable for the damage they cause to the Marine Park where they were
not themselves aware of a risk of causing damage, but should have been, having regard
to the "reasonable person" test applied by the fault element of negligence.
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279. The offence includes a strict liability element. The approach reflects general principles
applied to a number of offences in the schedule and is discussed in greater detail above.
Conduct contravening an Order or Direction (38DC)
280. The item re-enacts and consolidates sections 38E and 38H, providing an offence of
failing to comply with an order or direction given by the Authority pursuant to the
GBRMP Regulations and/or a zoning plan. The offence is restructured so as to provide
greater clarity as to the elements of the offence. The maximum penalty for the offence
is 500 penalty units (for an individual).
281. Absolute liability applies to the circumstance that the person has been issued a direction
or order and that order or direction is of a kind declared by regulation to be an order or
direction to which the offence relates. Absolute liability is applied as these matters are
jurisdictional elements of the offence - the essence of the offence is non-compliance
with such a direction or order.
282. In line with current section 38E, the re-enacted offence specifies negligence as the fault
element for the result that the person failed to comply with a direction. In other words,
a person may be found guilty if, given the same circumstances, a "reasonable person"
would have complied with the direction. Application of negligence as a fault element is
considered appropriate given the nature of the orders and directions to which the
offence applies. The orders and directions apply to a limited class of person/activities
and are either an order to remove abandoned property, or are a condition of entry into
the Marine Park - that is, a person may only enter and use the Marine Park (or a zone
within the Marine Park) for a particular purpose if they comply with specified
directions. As a part of this, the person issued with the direction is expected to actively
comply with and guard against non-compliance with the direction, as would be
expected of a "reasonable person".
Discharging waste in the Marine Park (38DD, 38DE)
283. The item re-enacts current section 38J, which prohibits the discharge of waste in the
Marine Park. The offence is re-enacted through two provisions. The first (38DD) deals
with discharge of waste in the Marine Park. The second (38EA) deals with the
contravention of a condition of a permission authorising (among other things) the
discharge of waste in the Marine Park.
284. The penalty for the re-enacted offence of discharging waste in the Marine Park has
been amended to provide for an "aggravated offence" with a maximum penalty of three
years imprisonment, 2,000 penalty units or both (for an individual). Aggravated
offences are discussed in further detail below (see 38GA). The maximum "base"
penalty (i.e. not an aggravated offence) is 1,000 penalty units (for an individual).
285. The offence includes strict liability elements. The approach reflects general principles
applied to a number of offences in the schedule and is discussed in greater detail above.
286. The offence is subject to a number of defences as follows:
· Circumstances prescribed by regulations for the purpose of the provision apply,
being circumstances related to the discharge of sewage from a vessel. These
regulations relate to treatment standards for sewage and the locations in which it
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may be discharged. These matters are prescribed in regulations rather than the Act,
as treatment standards and acceptable discharge locations may vary over time as,
for example, treatment technology improves and/or becomes more economical.
· The waste discharged is fresh fish or parts of fresh fish caught in the Marine Park
(e.g. trawler by-catch), except where the discharge occurs in a location prescribed
by regulations for the purposes of the provision. This provides flexibility for the
regulations to identify sensitive locations in which such discharges should not be
permitted.
· The discharge was necessary to secure the safety of a vessel, aircraft or platform;
was necessary for the purpose of saving life; or was for the purpose of minimising
damage from a pollution incident and was approved by a prescribed officer or the
Authority.
287. Because these matters are framed as defences it is for the defendant to adduce evidence
of a reasonable possibility that the defence in question applies. Reversal of the burden
of proof in this manner is considered appropriate as evidence of the matters that are the
subject of defences are issues wholly or primarily within the knowledge of the
defendant. It would be highly difficult and impractical for the prosecution to obtain and
adduce evidence of relevant matters and doing so would not be of relevance to the large
majority of offences prosecuted. Framing as a defence has the effect of requiring the
defendant to put forward adequate evidence that the waste was sewage treated to the
required standard; was fresh fish or fish parts caught within the Marine Park; or that the
action was for the purpose of securing safety, saving life or responding to a pollution
incident. It would then be for the prosecution to refute that evidence beyond reasonable
doubt (see Criminal Code section 13.1).
288. As with the current section 38J, the offence requires that the discharge of waste be
negligent, rather than intentional or reckless. Discharges of waste such as oil, noxious
chemicals and garbage have the potential to cause significant harm to the sensitive
environment of the Great Barrier Reef. Given this potential, negligence is applied so
that relevant persons (e.g. ship operators) are required to exercise due diligence. More
specifically, a person may be liable for a discharge of waste where the discharge was
not intentional or they were not themselves aware of a risk of the discharge, but should
have been, having regard to the "reasonable person" test applied by the fault element of
negligence.
289. In line with current subsection 38J(1B), the item re-enacts a strict liability version of
the offence of discharging waste in the Marine Park. Re-enactment of a strict liability
offence is proposed having considered the Senate Scrutiny of Bills Committee Sixth
Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth
Legislation, as well as the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers, issued by authority of the Minister for Justice and Customs.
Having regard to these documents, the offence is considered appropriate as:
· It will enhance the effectiveness and efficiency of the overall enforcement regime.
· There are legitimate grounds for penalising persons lacking fault.
· The penalty imposed reflects the serious and immediate threat to the environment
posed by the discharge of waste.
290. The International Convention for the Prevention of Pollution from Ships 1973 (referred
to as the MARPOL Convention) includes strong measures to prevent damage to the
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marine environment through the discharge from ships of wastes such as oil, noxious
chemicals and garbage. The Convention is implemented through uniform national
legislation. At a Commonwealth level, the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983 (POS(PPS) Act) is the primary Act implementing the
Convention. The Convention includes provisions relating specifically to the Great
Barrier Reef. The GBRMP Act implements these provisions and otherwise regulates
discharges in areas and from vessels not covered by the POS(PPS) Act. The strict
liability offence proposed by the current item reflects the Convention and offences
established by the POS(PPS) Act and relevant Queensland legislation. This ensures a
consistent regulatory environment and enhances the efficiency and effectiveness of
enforcement.
291. Discharge of waste has the potential to cause significant harm to the sensitive
environment of the Great Barrier Reef. The Great Barrier Reef has been recognised as a
"Particularly Sensitive Sea Area" by the International Maritime Organisation, and as
mentioned above, is afforded special protection under the MARPOL Convention.
Given this status, it is considered appropriate that Marine Park users be on notice to
guard against the possibility of a discharge of waste. This, and the maximum penalty of
500 units (for an individual), also ensures appropriate deterrence.
292. The item includes a provision (38DE) empowering the Authority to approve the
discharge of waste where it is necessary for the purposes of combating a specific
pollution incident or minimising damage from pollution. This reflects an existing
provision. Currently, persons employed in particular positions as prescribed by
regulation may approve discharges. The schedule replaces this approach by vesting
power with the Authority, which may then delegate to appropriate employees and
officers. The relevant regulations will be repealed. This addresses a risk of a lack of
capacity to respond to pollution incidents due to the regulations being out of date.
Contravention of a permission or authority (38EA & 38EB)
293. The item re-enacts, with some changes, an offence prohibiting conduct contravening
the conditions of a permission, and establishes an equivalent civil penalty provision.
The provisions consolidate relevant offences established by current sections 38, 38C,
38CC, 38E, 38G, 38J and 38MC.
294. The re-enacted offence increases the maximum "base" penalty to 500 penalty units (for
an individual). For an "aggravated offence", the maximum penalty is 1,000 units (for an
individual). Aggravated offences are discussed in greater detail below (see 38GA). The
civil penalty provision equivalent of the offence carries a "base" maximum penalty of
1,000 penalty units for an individual and 10,000 penalty units for a body corporate. For
an "aggravated contravention", the maximum penalty is 2,000 penalty units for an
individual and 20,000 penalty units for a body corporate. Aggravated contraventions
are discussed in greater detail below (see 38GB).
295. A number of defences to the offence of conduct contravening a permission or authority
are specified. These defences are re-enacted from current section 38J and are as
follows:
· The conduct in question involved a discharge of waste that is fresh fish or parts of
fresh fish caught in the Marine Park, except in areas prescribed in regulations for
the purposes of the provision.
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· The conduct in question involved a discharge of waste that was necessary to secure
the safety of a vessel, aircraft or platform; was necessary for the purpose of saving
life, or was for the purpose of minimising damage from a pollution incident and was
approved by a prescribed officer.
296. Because these matters are framed as defences, the defendant bears the evidential burden
- that is, it is for the defendant to adduce evidence that there is a reasonable possibility
that the defence in question is made out. Reversal of the burden of proof in this manner
is considered appropriate, as evidence of the matters that are the subject of the defence
are issues wholly or primarily within the knowledge of the defendant. It would be
highly difficult and impractical for the prosecution to obtain and adduce evidence of
these matters and doing so would not be of relevance to the large majority of offences
prosecuted. Framing as a defence has the effect of requiring the defendant, if relevant,
to put forward adequate evidence that the waste was fresh fish caught within the Marine
Park; or that the action was for the purpose of securing safety, saving life or responding
to a pollution incident. It would then be for the prosecution to refute that the defence is
not made out beyond reasonable doubt (see Criminal Code section 13.1).
297. The offence includes absolute liability provisions such that a prosecutor will not have to
show a person knew or was reckless as to the facts that:
· the person is authorised by a permission or an authority granted under a permission
to engage in conduct; and
· the permission or authority is subject to a condition.
Absolute liability is specified as these matters are jurisdictional elements of the offence.
The essence of the offence is that a person acting under the authority of a permission
has failed to comply with the requirements of that permission.
298. In line with the existing offence provisions, the re-enacted offence specifies negligence
as the fault element for the result that the conduct in question contravenes a condition
of the permission (or authority), however, the conduct itself must be intentional.
Application of negligence is considered appropriate in relation to non-compliance with
permission conditions. Permissions authorise a person to enter and use the Marine Park,
subject to complying with specified conditions designed to prevent and manage harm to
the Marine Park that will or might result from the activity. Permission (and authority)
holders are expected to actively seek to comply, and guard against non-compliance,
with the conditions of their permission. Applying negligence is consistent with this, as a
permission (or authority) holder may be found guilty in situations where they were not
aware of a risk of non-compliance, but should have been, had they been exercising the
level of care expected of a "reasonable person".
299. The item establishes a strict liability version of the offence of conduct contravening a
condition of a permission. A strict liability offence is proposed having considered the
Senate Scrutiny of Bills Committee Sixth Report of 2002: Application of Absolute and
Strict Liability Offences in Commonwealth Legislation, as well as the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers, issued by authority
of the Minister for Justice and Customs. Having regard to these documents, the offence
is considered appropriate as:
· There are legitimate grounds for penalising persons lacking fault.
· It will enhance the effectiveness and efficiency of the overall enforcement regime.
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· The maximum penalty is 60 penalty units for an individual (300 for a body
corporate).
300. The permitting system in place under the zoning plan and GBRMP Act and Regulations
is fundamental to regulation and management of the Great Barrier Reef. Activities in
the Marine Park are subject to permission requirements where they have the potential to
have impacts of consequence on the environment. The conditions attached to
permissions are directed at ensuring the impacts of the permitted activity are
acceptable, for example, by requiring activities to be done in a certain manner. In this
context, making it incumbent on permission holders to actively ensure their activities
comply with permission conditions is reasonable and essential to the integrity of the
regulatory regime.
301. The availability of a strict liability offence will enhance the effectiveness and efficiency
of the enforcement regime by providing a broader spectrum of enforcement options. It
will allow minor and "clear cut" contraventions of permission conditions to be dealt
with expeditiously, with a penalty more suited to the nature of the contravention.
Further, Schedule 5, item 125 allows regulations to make provision for infringement
notices to be issued in relation to the strict liability offence. The availability of
infringement notices provides yet a further enforcement option that can be used in
relation to minor contraventions, where the immediate imposition of a penalty would
enhance deterrence and the efficiency of enforcement.
Collective and vicarious liability - persons responsible for vessels, aircraft and platforms
used in committing offences (38FA)
302. The item imposes vicarious liability on persons responsible for vessels involved in an
offence against specified provisions of the Act. This, in part, re-enacts current sections
38K and 38L.
303. The provisions require "responsible persons" in relation to a vessel to take all
reasonable steps and exercise due diligence in ensuring the vessel is not used in the
commission of an offence. In determining whether a responsible person has taken all
reasonable steps and exercised due diligence, regard must be had to:
· the steps the person took to satisfy themselves that the Act will be complied with;
and
· if the person was or should have been aware of a risk of a contravention, the steps
the person took to reduce or remove that risk.
These requirements suggest that a responsible person should actively seek to satisfy
themselves that use of the vessel will be carried out in accordance with relevant
provisions of the GBRMP Act, having regard to risks of non-compliance, and take
action as appropriate to ensure compliance.
304. The provisions specify as "responsible persons" vessel masters, vessel owners and
persons responsible for vessel-based commercial fishing activities, notably the fishing
licence holder. Application of vicarious liability to this class of persons recognises that
such people have a responsibility and capacity to manage the operations of the vessel.
The provisions ensure appropriate incentives are in place to encourage those persons to
discharge their responsibilities with due diligence. The provisions apply an appropriate
allocation of culpability should the vessel they are responsible for be involved in a
contravention of the Act.
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305. The vicarious liability of vessel masters and owners is well established in maritime law.
A master is, as a matter of law, the person in charge or command of a vessel. A master
should not escape liability if, under his or her direction (or lack of direction), the vessel
is involved in an offence, but he or she is not "at the wheel" at the time. Vessel owners
are responsible for determining how the vessel will be used and in so doing, are
responsible for introducing risks associated with vessel operations. They are able to
manage such risks through, for example, their control over the master, and their
capacity to put in place requirements, systems and procedures relating to the operation
of the vessel. They are also the entity that profits from operation of the vessel and
should have some degree of culpability should those operations result in a criminal
offence.
306. The vicarious liability imposed on commercial fishing licence holders recognises that
such persons are responsible in law for commercial fishing activities carried out under
the licence. They determine how a boat is used, who the master is and generally appoint
and directly manage the crew. In so doing, they create risks associated with the fishing
operations, which they are able to manage in a variety of ways, for example, educating
crew, putting in place appropriate management systems and taking steps to ensure the
probity of their crew. They stand to profit from the operation of the vessel and should
have some degree of culpability should those operations result in a criminal
contravention.
307. The requirement that reasonable steps and due diligence be exercised ensures that
culpability reflects the capacity of a responsible person to influence the operations of
the vessel at the relevant time. This provides an important limit on vicarious liability.
308. The provisions relating to commercial fishing licence holders are designed to apply to
holders of licences, permits, rights and authorities issued under the Queensland
Fisheries Act 1994 (including a "Commercial Fisher Licence" and a "Commercial
Fishing Boat Licence"), the Commonwealth Fisheries Management Act 1991
(including a fishing permit and statutory fishing right) and the Torres Strait Fisheries
Act 1984 (including a "Torres Strait Fishing Boat Licence").
309. The offence establishes strict liability in relation to the fact that a person is a
"responsible person" and that the vessel, aircraft or platform for which they are
responsible was used in committing an offence. Strict liability is specified as these
matters are jurisdictional - the essence of the offence is that the person has failed to
take reasonable steps and exercise due diligence in ensuring the vessel would not be
used in commission of an offence. Application of strict liability also ensures a defence
of honest and reasonable mistake is available.
Collective liability -ships involved in an offence (38FB)
310. The item imposes collective liability on the master and owner of a ship involved in the
commission of an offence against Part VAA of the Act (i.e. the offences set out in this
schedule). This, in part, is a re-enactment of current sections 38M, 38MA and 38MB.
311. The collective liability of vessel masters and owners is well established in shipping law
and is reflected in Commonwealth legislation, for example, in the Protection of the Sea
(Prevention of Pollution from Ships) Act 1983 and the Navigation Act 1912. Masters
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are, as a matter of law, the person in charge or command of a vessel. A master should
not escape liability if, under his or her direction (or lack of direction), the vessel is
involved in an offence, but he or she is not "at the wheel" at the time. Vessel owners
are responsible for determining how the vessel will be used and in so doing, are
responsible for introducing risks associated with vessel operations. They are able to
manage such risks through, for example, their selection of and control over the master,
and their capacity to put in place requirements, systems and procedures relating to the
operation of the vessel. They are also the entity that has introduced a risk to the
environment in the pursuit of profit, and should have some degree of culpability should
those operations result in a criminal offence.
312. Illegal shipping activities have the potential to cause significant harm to the sensitive
environment of the Great Barrier Reef. The Great Barrier Reef has been recognised as a
"Particularly Sensitive Sea Area" by the International Maritime Organisation and is
afforded special protection under the International Convention for the Prevention of
Pollution from Ships 1973. The GBRMP Act and zoning plans contain a number of
provisions designed to minimise the potential for serious environmental harm to be
caused through shipping activities, for example, by designating shipping routes, so as to
avoid sensitive and dangerous waters.
313. Vicarious liability arises as a matter of strict liability given proof of the primary
offence, which involves the satisfaction of fault standards, as required by the offence
provision in question. Application of strict liability recognises that the elements are
jurisdictional, while allowing for a defence of honest and reasonable mistake.
Collective liability - vessels causing damage to the Marine Park (38FC)
314. The item imposes liability on the master and owner of a vessel involved in the
commission of an offence against 38CA (vessel causing damage to the environment of
the Marine Park) and 38CE (discharging waste). This, in part, re-enacts current
subsection 38MC(2).
315. The collective liability of vessel masters and owners is well established in maritime
law. A master is, as a matter of law, the person in charge or command of a vessel. A
master should not escape liability if, under his or her direction (or lack of direction), the
vessel is involved in an offence, but he or she is not "at the wheel" at the time. Vessel
owners are responsible for determining how the vessel will be used and in so doing, are
responsible for introducing risks associated with vessel operations. They are able to
manage such risks through, for example, their selection of and control over the master,
and their capacity to put in place requirements, systems and procedures relating to the
operation of the vessel. They are also the entity that has introduced a risk to the
environment in the pursuit of profit, and should have some degree of culpability should
those operations result in an offence.
316. The item, in part, reflects and implements the International Convention for the
Prevention of Pollution from Ships 1973 (referred to as the MARPOL Convention). The
Convention includes strong measures to prevent damage to the marine environment
through the discharge from ships of wastes such as oil, noxious chemicals and garbage.
The Convention is implemented through uniform national legislation. At a
Commonwealth level, the Protection of the Sea (Prevention of Pollution from Ships)
Act 1983 (POS(PPS) Act) is the primary Act implementing the Convention. The
Page 67 of 73
Convention includes provisions relating specifically to the Great Barrier Reef. The
GBRMP Act implements these provisions and otherwise regulates discharges in areas
and from vessels not covered by the POS(PPS) Act. The imposition of vicarious
liability on vessel masters and owners reflects provisions of the POS(PPS) Act and
relevant Queensland legislation. This ensures a consistent regulatory environment and
enhances the efficiency and effectiveness of enforcement.
317. Discharge of waste has the potential to cause significant harm to the sensitive
environment of the Great Barrier Reef. The Great Barrier Reef has been recognised as a
"Particularly Sensitive Sea Area" by the International Maritime Organisation, and as
mentioned above, is afforded special protection under the MARPOL Convention.
318. Vicarious liability arises as a matter of strict liability given proof of the primary
offence, which involves the satisfaction of fault standards, as required by the offence
provision in question. Application of strict liability recognises that the elements are
jurisdictional, while allowing for a defence of honest and reasonable mistake.
Vicarious liability - permission holders (38FD)
319. The item imposes vicarious liability on the holder of a permission where another
person, acting under an authority issued by the permission holder pursuant to the
permission, contravenes a condition of the permission.
320. Under the GBRMP Regulations, a permission holder may, if the conditions of the
permission allow, grant an "authority" to another person to undertake the activities
authorised by the permission. In undertaking such activities, the authority holder is
subject to the conditions of the permission, and commits an offence if they fail to
comply with those conditions.
321. The item requires that the permission holder take all reasonable steps and exercise due
diligence in ensuring the permission conditions are complied with by a person to whom
they have issued an authority. In determining whether a permission holder has taken all
reasonable steps and exercised due diligence, regard must be had to:
· the steps the person took to satisfy themselves that the Act would be complied with;
and
· if the person was or should have been aware of a risk of a contravention, the steps
the person took to reduce or remove that risk.
These requirements suggest that a permission holder should actively seek to satisfy
themselves that activities authorised by the permission will be carried out in accordance
with conditions of the permission, having regard to risks of non-compliance, and take
action as appropriate to ensure compliance.
322. Imposition of vicarious liability on the holder of the permission for an offence
committed by an authority holder recognises that permission holders have
responsibility and a capacity to manage the risks of non-compliance with permission
conditions. They determine who to issue authorities to and can influence the conduct of
the authority holder, for example, by requiring them to act in accordance with defined
procedures or systems. Further, the permission holder generally stands to profit from
activities undertaken pursuant to the permission, and so should share some culpability if
permission conditions are not complied with.
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323. The requirement that reasonable steps and due diligence be exercised ensures that
culpability reflects the capacity of a permission holder to influence the actions of an
authority holder. This provides an important limit on vicarious liability.
324. The offence establishes strict liability in relation to the following circumstances:
· the permission holder has issued another person with an authority;
· the authority is given in accordance with the permission;
· the permission is subject to a condition or conditions; and
· the authority holder has committed an offence involving contravention of a
condition of a permission.
Strict liability is specified as these matters are jurisdictional - the essence of the offence
is that a permission holder has failed to take reasonable steps and exercise due diligence
in ensuring that a person undertaking actions authorised by the permission on their
behalf complies with the conditions of the permission. Application of strict liability also
ensures that a defence of honest and reasonable mistake is available.
Aggravated offences and contraventions (38GA, 38GB)
325. The item establishes "aggravated offences" and "aggravated contraventions" as a
means of distinguishing conduct constituting an offence or contravention of a civil
penalty provision on the basis of the impact, seriousness, culpability, potential for
pecuniary benefit and similar such factors. More specifically, the item identifies as an
"aggravating" circumstance, conduct that:
· is fishing involving a primary commercial fishing vessel or a dory;
· involves navigation of a ship (within the meaning of the relevant zoning plan);
· results in or had the potential to result in serious harm to the environment of the
Marine Park;
· results in the taking of or injury to a member of a protected species; and
· was done for a commercial purpose.
326. Higher maximum penalties apply when these aggravating circumstances exist, so as to
ensure adequate deterrence, and reflect the seriousness of the contravention in terms of
actual and potential impact and culpability. The maximum penalty for an aggravated
offence and contraventions is set out in each offence and civil penalty provision.
327. Where an aggravated offence is alleged, the prosecution must charge and prove the
aggravating circumstance. If the trier of fact is not satisfied that the aggravating
circumstance has been made out, the person may instead be found guilty of the "base"
offence. Similar procedural provisions apply to actions for contravention of a civil
penalty provision.
328. In line with the Criminal Code, recklessness is the fault element applied to most
aggravating circumstances. Strict liability applies to aspects of certain aggravating
circumstances, specifically, the fact that a vessel is a "primary commercial fishing
vessel", a "dory" or a "ship" and the fact that an animal or plant is a member of a
protected species. Use of strict liability is proposed as it:
· overcomes problems of proof that would otherwise make the regulatory regime
particularly difficult to enforce; and
· overcomes a "knowledge of the law" problem.
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329. Proving to a Court that a defendant did not know or was reckless to the fact that a
vessel is a "primary commercial fishing vessel", a "dory" or a "ship" or that an animal
or plant is a member of a "protected species" is problematic. These matters are largely
within the knowledge of the defendant alone, and proving the contrary beyond a
reasonable doubt would require significant and difficult to obtain indirect and
circumstantial evidence.
330. The fact that a vessel is a "primary commercial fishing vessel", a "dory" or a "ship" or
that an animal or plant is a member of a "protected species" forms a part of the law.
The terms are defined by the GBRMP Act, regulations and zoning plan made under the
Act. Allowing people to avoid conviction because they were unaware of, or mistaken
concerning, legal requirements would allow ignorance of the law to be used as an
excuse for criminal behaviour.
Commencement of prosecutions - time limit (38HA)
331. The item provides an extension to the time in which certain prosecutions may be
commenced. The Crimes Act 1914 section 15B provides that a prosecution for an
offence carrying a maximum penalty of less than six months' imprisonment must be
commenced within 12 months of the commission of the offence. This is too short for
many offences under the GBRMP Act. The Marine Park is a large and in places quite
remote area, parts of which are often inaccessible for extended periods, for example,
due to the wet season. Investigations for some offences can be quite complex. Because
of these factors, it may not be possible to adequately detect, investigate and collect
relevant evidence of an offence within 12 months of its commission. The item extends
the period in which prosecutions may be commenced from 12 months to two years.
332. Under the Crimes Act 1914, a prosecution for an offence punishable by a maximum
penalty of more than six months may be commenced at any time. This provision is
unaffected by the current item.
333. The item provides that provisions of the GBRMP Act and Crimes Act 1914 related to
the time limit for commencing prosecutions are not affected by sections 38HC-38HF,
which provide that, despite the penalty set out for the relevant offence, a sentence of
imprisonment is not available in certain circumstances (involving foreign nationals in
Australian exclusive economic zone and territorial sea).
Commencement of certain prosecutions - Attorney-General's Consent (38HB)
334. The item imposes a requirement for the Attorney-General to consent to the
commencement of criminal proceedings against a foreign national for a collective or
vicarious liability offence (Division 6 of Part VAA, as inserted by this schedule). In
consenting to the commencement of proceedings, the Attorney-General is required to
consider relevant international rights and obligations. This is designed to ensure any
enforcement action against foreign nationals is consistent with Australia's international
rights and obligations.
Conduct in the Exclusive Economic Zone and Territorial Sea (38HC-38HF)
335. The item includes provisions preventing the imposition of a sentence of imprisonment
for an offence against specified provisions of the GBRMP Act in certain circumstances.
Under international law, notably the United Nations Convention on the Law of the Sea
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(UNCLOS), Australia is restricted from imposing a sentence of imprisonment on
foreign nationals in relation to fishing and polluting offences that occur in Australia's
exclusive economic zone (EEZ) or territorial sea. As the Marine Park takes in areas of
Australia's EEZ and territorial sea, the item inserts provisions to ensure Australia
abides by these international obligations. It remains possible to order a pecuniary
penalty.
Item 26-32 - Civil penalty provision equivalents of environmental management charge
offences
336. These items establish civil penalty provision equivalents of existing offences
established by section 39FA and 39FB. These offences relate to failure to collect, pay
and provide to the Authority the Environmental Management Charge a person is
required by law to collect, pay and/or provide.
337. The availability of civil penalties adds flexibility in enforcement and is of particular
value in relation to corporate wrongdoing, where criminal prosecution may not provide
appropriate deterrence and punishment. The taking of civil action (rather than criminal
prosecution or other form of enforcement) in any given circumstance is a matter of
discretion.
Item 33 - False or misleading representation in relation to tourism services
338. This item establishes a new offence of making, in the course of providing a tourism-
related service, a false or misleading representation concerning a person's liability to
pay a fee, tax, levy or other charge in connection with entry and use of the Marine Park.
This new offence responds to evidence of persons making false or misleading
statements regarding the requirement to pay the Environmental Management Charge
(EMC) (see GBRMP Act Part VA), or the amount of EMC that is payable.
339. The representations that are of concern sometimes do not use the term "Environmental
Management Charge", but instead, use terms such as "reef tax", "environmental levy"
or "park fee". The framing of the offence is intended to pick up any such term that
implies there is a government-imposed charge payable.
340. The offence is phrased in a way that the representation must relate to entry or use of the
Marine Park. However, the representation need not explicitly identify a relationship
with use of or entry into the Marine Park. Rather, the representation should relate to an
activity. That activity should involve entry into and/or use of the Marine Park.
Similarly, while the offence requires that the representation relate to a tax, fee etc
imposed by the `Commonwealth', it is not necessary to prove that the representation
explicitly identified the fee as being imposed by the Commonwealth.
341. The offence carries a maximum penalty of 1,000 penalty units for an individual and
5,000 penalty units for a body corporate.
Item 34 - Penalty for late payment of Environmental Management Charge
342. Current section 39G establishes a late payment penalty for failing to provide
Environmental Management Charge to the Authority by the due date. The current
penalty is 20 per cent per annum of the amount outstanding. Where only a small
Page 71 of 73
amount is owed, this penalty can fail to provide adequate deterrence. To address this,
the item establishes a new penalty of $250 or 20 per cent per annum of the amount
unpaid, whichever is greater.
Part 2 - Application, Saving and Transitional Provisions
Item 35 - Definition
343. This item clarifies that a reference to "Marine Park regulations" in Part 2 of the
schedule means regulations made under the GBRMP Act.
Item 36 - Mining or drilling in the Great Barrier Reef Region
344. This item is a consequence of the replacement of the offence established by current
section 38 with new offence 38AA and civil penalty provision 38AB. The item
provides that, where conduct is authorised by a permission issued for the purposes of
existing section 38, that same permission acts to authorise conduct for the purposes of
the new offence and civil penalty provision.
Item 37 - Conduct in zone
345. This item is a consequence of the replacement of the offence established by current
sections 38B, 38CB and 38MA with new offence 38BA and civil penalty provision
38BB. The item provides that certain conduct is not an offence under 38BA or a
contravention under 38BB if it is authorised by a permission that is prescribed for the
purposes of current sections 38B, 38CB or 38MA. This ensures that activities that are
currently lawfully carried out under a permission can continue to be.
Item 38 - Conduct in unzoned area
346. This item is a consequence of the replacement of the offence established by current
section 38F with new offence 38CA and civil penalty provision 38CB. The item
provides that certain conduct is not an offence if authorised by a permission granted for
the purpose of the section. The current item ensures such permissions apply for the
purposes of the new offence and civil penalty provision.
Item 39 - Contravening order or direction
347. This item is a consequence of the replacement of offences established by sections 38E
and 38H with new offence 38DC. The provisions relate to contravention of an order or
direction. The item provides that, where an order or direction was made pursuant to
section 38E or 38H prior to commencement, contravention of the order or direction is
an offence under new 38DC.
Item 40 - Discharging waste
348. This item is a consequence of the replacement of the offence established by current
section 38J with new offence 38DD. The item provides that certain conduct is not an
offence if authorised by a permission granted for the purpose of the section. The item
ensures such permissions apply for the purposes of the new offence.
Page 72 of 73
Item 41 - Conduct contravening condition of permission or authority
349. This item is a consequence of the new offence 38EA and civil penalty provision 38EB,
both of which relate to contravening conditions of a permission or authority. The item
ensures the new offence and civil penalty provisions apply to permissions and
authorities issued prior to the commencement of this schedule (as well as permissions
and authorities issued after commencement).
Item 42 - Liability of permission holder for conduct contravening permission
350. This item is a consequence of new offence 38FD, which imposes liability on a
permission holder for a breach of permission conditions by a person acting under an
authority issued by the permission holder. The item ensures the new offence applies in
relation to permissions issued prior to commencement.
Page 73 of 73
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