Commonwealth Numbered Regulations - Explanatory Statements

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ANTARCTIC SEALS CONSERVATION REGULATIONS (AMENDMENT) 1993 NO. 289

STATUTORY RULES 1993 No. 289

Issued by the Authority of the Minister for the Environment, Sport and Territories

Antarctic Treaty (Environment Protection) Act 1980

Antarctic Seals Conservation Regulations (Amendment)

Paragraph 29(1)(a) of the Antarctic Treaty (Environment Protection) Act 1980 empowers the Governor-General to make regulations not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary and convenient to be prescribed for carrying out or giving effect to the Act. In addition, paragraphs 29(2)(b) and (ba) of the Act specifically empower the Governor-General to make regulations for the conservation of fauna and flora and the protection of the environment of the Antarctic; and prohibiting the killing, taking, injuring or other interference with a seal that is indigenous to the Antarctic. Other specific regulation making powers are: paragraph 29(2)(f) which provides for the regulation or prohibition of the taking of animals into, or out of the Antarctic; and paragraph 29(2)(i) which provides for the collection of specimens and the pursuit of research in the Antarctic for scientific purposes.

The Antarctic Seals Conservation Regulations (the Regulations) implement Australia's obligations under both the Seals Convention and the Antarctic Treaty. The Regulations provide for the various matters necessary to enable ratification of the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol). This Protocol will replace the Agreed Measures for the Conservation of Antarctic Fauna and Flora which are currently in force.

The opportunity has also be taken to update some of the provisions to reflect current drafting practice and criminal law policy. Other minor amendments will facilitate efficient administration of the Regulations.

Details of the proposed regulations are as follows:

Regulation 1 - Commencement

Subregulation 1.1 provides that subregulation 3.3 commences when subsection 6(3) of the Antarctic (Environment Protection) Legislation Amendment Act 1992 commences. Subsection 6(3) commences when Annex V to the Madrid Protocol (which relates to protected areas) becomes effective.

Subregulation 1.2 provides for subregulations 4.6, 7.2, 8.2 and 8.4 to commence when the Madrid Protocol enters into force.

The remainder of the regulations commence on gazettal.

Regulation 2 - Amendment

This provision provides that the Antarctic Seals Conservation Regulations are amended as set out in these amending Regulations.

Regulation 3 - Regulation 2 (Interpretation)

Subregulation 3.1 provides for two definitions to be inserted in subregulation 2(1) to facilitate drafting.

'authorised person' is defined to mean a person authorised by the Minister by notice in the Gazette for the purpose of the provision in which the expression occurs. This will enable the Minister to authorise another person to, for example, receive reports on her or his behalf, in order to facilitate the efficient administration of the Regulations.

'take', in relation to a seal, includes take a dead seal.

Subregulation 3.2 inserts new subregulation 2(3). The new provision provides that unless the contrary intention appears, and apart from expressions defined in subregulation (1) or under subregulation (2), any expression used in both these Regulations and in the Agreed Measures has the same meaning as in those Measures. This provision was previously in the general interpretation section of the Act and applied to the Regulations. However, recent amendments to the Act restrict the application of the provision to specific provisions in the Act.

Subregulation 3.3 provides for new subregulation 2(3) to be omitted once Annex V becomes effective as it will no longer be necessary to refer to the Agreed Measures, which will be replaced by Annex H (protection of fauna and flora) and Annex V (protected areas) to the Madrid Protocol.

Regulation 4 - Regulation 4 (Grant or refusal of permit relating to seals)

Regulation 4 inserts new subregulations 4(2A), (2B), (2C), (2D) and (2E) to provide for additional obligations flowing from the Madrid Protocol.

Subregulation 4.1 is a consequential amendment to take into account the new provisions.

Subregulation 4.2 amends paragraph 4(1)(a) to delete "if any" in relation to conditions as it is proposed in new regulation 6 that certain matters must be included as conditions of the permit.

Subregulation 4.3 amends paragraph 4(2)(b). Currently, the Minister may grant a permit for any of the purposes referred to in Article 4 of the Seals Convention. These purposes are: to provide indispensable food for men or dogs (paragraph (1)(a)); to provide for scientific research (paragraph (1)(b)); or, to provide specimens for museums, educational or cultural institutions (paragraph (1)(c)). The reference to Article 4 of the Convention is to be omitted and substituted with a reference to paragraph (1)(b) or (c) of Article 4. The granting of permits for the purpose provided for in paragraph (1)(a) of Article 4 is no longer necessary since the presence of dogs is to be prohibited. Paragraph 11(5)(a) provides for an exemption in cases of emergency which could involve the taking of a seal for essential food.

Subregulation 4.4 inserts a number of new provisions.

New subregulation 4(2A) provides that the Minister may only grant permits for activities described in regulation 11 (which relate to killing, taking, injuring and disturbing seals) in certain circumstances if satisfied that:

•       the number of seals of any species that may be killed or taken under the authority of that permit and all other permits granted under paragraph 4(1)(a), and by virtue of corresponding laws, is not greater than the increase of the species in the immediately succeeding breeding season by natural reproduction; and

•       the variety of species, the habitat essential to their existence and the balance of the ecological systems existing within the Antarctic will be maintained.

New subregulation 4(2B) makes special provision for seals which have been designated as specially protected species under the Agreed Measures and Appendix A of Annex II to the Madrid Protocol; these are a species of the genus Arctocephalus (Fur seals), and of the species Ommatophoca rossii (Ross seal). The subregulation provides that a permit may only be granted to kill or take these seals for a compelling scientific purpose, and the Minister is satisfied that the activities authorised by the permit will not jeopardise the survival or recovery of that species or of the local population of that species.

New subregulation 4(2C) provides that the Minister may not grant a permit authorising a person to carry on an activity to which Part 3 of the Act (environmental impact assessment) applies unless the Minister has authorised the activity in accordance with those provisions.

New subregulation 4(2D) provides that the Minister may not grant a permit authorising a person to carry on an activity in a CEMP site unless a permit authorising the person to enter the site has been granted under the Antarctic Marine Living Resources Conservation Act 1981 (the AMLRC Act). These terms are defined in subsection 3(1) of the Antarctic Treaty (Environment Protection) Act 1980. "CAMLR Convention" means the Convention on the Conservation of Antarctic Marine Living Resources. "CEMP site" means a monitoring site established for the purposes of the Ecosystem Monitoring Program conducted by the parties to the CAMLR Convention, and which is the subject of a management plan adopted by the Commission for CAMLR in accordance with Conservation Measure 18/IX.

CEMP sites are land-based sites set aside by the Commission for CAMLR for research on marine organisms such as birds and seals in order to determine possible effects of fishing on predators. The permit system to be established under regulations under the AMLRC Act will restrict entry to such sites and will also regulate activities in them. However, to ensure that Australia continues to comply with its obligations under the Seals Convention and the Agreed Measures (and later the Madrid Protocol) it is necessary to provide that persons intending to carry out activities in a CEMP site which may affect seals also have a permit under the AMLRC Act.

New subregulation 4(2E) requires that permits will only be issued to the extent that they are necessary for the construction or operation of scientific support facilities or for providing specimens for scientific research, public education or such other educational or cultural purposes as the Minister thinks fit.

Subregulation 4.5 omits paragraph 4(3)(b) and replaces it with new paragraph 4(3)(b). Paragraphs 4(3)(c) and (d) are omitted and these matters are included in paragraph (b) to improve the readability of the provision. Previously paragraphs 4(3)(b), (c) and (d) required the Minister to have regard to the Agreed Measures in a variety of circumstances and these were set out in separate paragraphs.

Subregulation 4.6 will require the Minister to have regard to Australia's obligations under the Madrid Protocol once the Protocol has entered into force (see subregulation 1.2).

Subregulation 4.7 will omit the references to paragraphs 4(3)(c) and (d) as explained in notes on subregulation 4.5.

Regulation 5 - Regulation 6 (Permits-conditions)

Regulation 5 omits regulation 6 and replaces it with a provision which explicitly specifies the particular requirements in relation to the conditions which must be included in permits. The present regulation 6 has the same requirements but it is done by reference to other provisions in the Regulations and the Seals Convention. The new regulation also takes account of additional obligations arising from the Madrid Protocol.

New subregulation 6(1) sets out five matters all of which must be included as conditions of the permit. These are:

•       the area in which the activity is to be carried out - paragraph (a);

•       the purposes for which the activity may be undertaken - paragraph (b);

•       that the seal must be dealt with in the manner which involves the least degree of pain and suffering practicable - paragraph (c);

•       that if the permit allows seals to be killed or taken, the number of seals must be specified as must the method by which they may be killed or taken, and the period during which they may be killed or taken paragraph (d); and

•        that a written report must be given to the Minister within 30 days. This requirement extends to any seals taken immediately outside the Convention area if the seal is on floating sea ice - paragraph (e). This provision recognises that seals are migratory species and the intention is that permit holders include in their report details of seals killed or taken, including those in the area outside but adjacent to the Convention area, to ensure that relevant scientific data is provided.

New subregulation 6(2) provides that a report prepared under paragraph 6(1)(e) must include the matters as set out in this regulation. These are matters on which Australia is required by the Seals Convention to report annually.

New subregulation 6(3) allows the Minister to include other conditions that are appropriate.

Regulation 6 - New regulation 7A

New regulation 7A allows a holder of a permit to request variation of the permit. Reasons for the variation must be given. The Minister may vary the permit if he or she is satisfied that the variation is justified by the reasons given in the request (see notes on paragraph 8(1)(b)).

Regulation 7 - Regulation 8 (Variation of permits)

Regulation 8 sets out the Minister's obligations in relation to varying a permit. It is amended it to take into account the inclusion of new regulation 7A (which allows a permit-holder to request a variation to a permit) and Australia's obligations under the Madrid Protocol.

Subregulation 7.1 omits existing subregulation 8(1) and substitutes a new subregulation. Paragraph 8(1)(a) provides that the Minister may vary a permit or a permit condition where he or she is satisfied that it is necessary to do so in order to give effect to Australia's obligations under the Seals Convention or to the purposes and principles of the Agreed Measures. From entry into force of the Madrid Protocol, subregulation 7.2 will amend subparagraph 8(1)(a)(ii) to delete a reference to the Agreed Measures and replace it with a reference to the Madrid Protocol.

Paragraph 8(1)(b) provides that the Minister may vary a permit at the request of the permitholder if he or she is satisfied that the variation is justified by the reasons given in the request, and the variation would not authorise any activity likely to affect adversely the conservation or protection of the fauna of the Antarctic.

Regulation 8 - Regulation 11 (Offences in relation to seals)

Subregulations 11(1), (2) and (3) prohibit the killing or taking of seals without authorisation by a permit under the Regulations, or the authorisation of another Contracting Party. Subregulation 11(4) prohibits a range of activities which are potentially harmful to Antarctic seals, unless the activity is undertaken in accordance with a permit under the Regulations or with an authority of another Contracting Party.

Subregulation 8.1 provides for the penalty for offences against subregulations 11(1), (2) and (3) to be expressed in penalty units instead of dollar amounts.

Subregulation 8.2 will amend regulation 11 when the Madrid Protocol has entered into force to reflect an amendment to the Act. The amendment to the Act replaces the expression "an authority of another Contracting Party" with "a recognised foreign authority". This is defined in the Act to mean a permit, authority or arrangement that has been issued, given or made by another Party to the Madrid Protocol.

Subregulation 8(3) omits existing subregulations 11(4) and 11(5). New subregulation 11(4) includes a reference to the fault element of the offence, that is, there has to be an intention or the action must be reckless. In addition, the amendments:

•       substitute 'use' for 'fly' in paragraph 11 (4)(b) so that the current prohibition of flying an aircraft in such a manner as to disturb a concentration of seals is extended to any use of an aircraft, for example landing or taking off;

•       replace paragraphs 4(c), (d) and (e) with new paragraphs. These paragraphs prescribe distances within which an activity may not take place, for example, a vehicle may not be driven within 200 metres of a concentration of seals (paragraph (c)). The amendments remove these distances and use the formula "in a manner that disturbs a concentration of seals". This provides greater protection to seals. For example, activity in one location may disturb seals 500 metres away, however in another location, seals much closer to the activity may not be disturbed, perhaps because the activity is hidden from view;

•       replace paragraph (e) with a new paragraph so that the current prohibition of, while on foot, disturbing a concentration of breeding seals extends to any concentration of seals; and

•       insert new paragraph (f) which prohibits the carrying out of any activity which results in the significant adverse modification of the habitat of a species of seal or population of seals.

Other aspects of the provisions are unaltered. The penalty for contravention of this subregulation is 10 penalty units.

New subregulation 11(5) includes additional exceptions as provided for in the Madrid Protocol. Paragraph 11(5)(a) provides for circumstances in which the prohibitions outlined in regulation 11 do not apply. The exemptions are:

•       to save a person from death or serious injury;

•       to secure the safety of a ship or aircraft or the safety of equipment or facilities of high value; or

•       to protect the environment.

As previously provided for, there is also an exemption for some activities where the action taken is reasonably necessary for the purposes of establishing, supplying or maintaining a station (paragraph 11 (5)(b)).

New subregulation 11(5A) provides that a notice must be provided to the Minister of an activity undertaken in an emergency if that activity was in contravention of subregulation 11(1), (2), (3) or (4). This notification is required within 30 days of the commencement of the contravening activity.

The penalty for failing to notify in accordance with this subregulation is 2 penalty units for each day on which the offence continues.

New subregulation 11(5B) provides that within 30 days of giving the notice, the person must provide a written report to the Minister describing the activity and explaining the reasons for the contravention. The intention of this provision is, among other things, to enable compliance with Article 2 of Annex II to the Madrid Protocol which requires the information specified on activities undertaken in emergencies.

Regulation 9 - Regulation 12 (Notice of proposed sealing expedition)

Subregulation 9.1 provides for the penalty for offences against subregulation 12(1) to be expressed in penalty units instead of dollar amounts.

Regulation 10 - Regulation 13 (Notice of sealing operations)

Subregulation 10.1 omits regulation 13 as it has been included in new paragraph 6(1)(e).