Bills Digest no. 134 2006–07
Great Barrier Reef Marine
Park Amendment Bill 2007
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Park Amendment Bill
28 March 2007
House: House of Representatives
Portfolio: Environment and Water
1 July 2007
To amend the
Great Barrier Reef Marine Park Act
1975 (GBRMPA) to implement some of the recommendations of the
2006 Review of the GBRMPA.
The Marine Park
Authority was set up by the GBRMPA. One of the primary functions of
the Authority is to recommend areas for declaration as parts of
the Great Barrier Reef Marine Park. Zoning plans are then
prepared and appropriate regulations promulgated and implemented.
Part of the Authority s function is also to carry out research. It
also aims to promote Commonwealth-State involvement and
co-operative arrangements in environmental management in the Great
Barrier Reef region.(2)
The Marine Park Authority has been a statutory
authority for approximately thirty years. During that time there
have been variously named Commonwealth Departments of the
Environment whose functions have expanded and contracted, but the
Marine Park Authority has continued as a relatively stable entity
from the time it was set up under the GBRMPA.
The Authority has been set up with quite
specific responsibilities to protect the Marine Park while
balancing competing interests in the way that the Park is
The reason for having a statutory authority to
carry out these functions can perhaps best be encapsulated by a
statement of John Uhrig in his recent report, Review of the
Corporate Governance of Statutory Authorities and Office
Holders (the Uhrig Review):
The existence of statutory authorities reflects
decisions by government over time, and legislated for by
Parliament, where it has been deemed desirable for particular
activities to operate outside a traditional departmental structure.
Statutory authorities generally have a single or primary role
(albeit comprising many parts) that they are established to carry
out, subject to varying degrees of ministerial control specified in
The role of the Consultative Committee is to
advise by its own motion or at the request of the Minister for the
Environment in matters relating to the GBRMPA or related
Acts,(4) and to advise the Authority on matters relating
to the Marine Park.
There are to be not less than 13 members of
the Committee. One member of the Authority is on the Committee.
Subsection 22(2) provides that not less than one third of the
members of the Committee shall be nominated by the Queensland
Government. Members are appointed for three years and are eligible
for further re-appointment (subsection 23(1)). However, this does
not include the member who is a member of the Authority, whose
tenure is during the pleasure of the Authority .(5)
The Zoning Plan is the primary instrument for
the conservation and management of the Marine Park. Zones range
from preservation zones , which are limits to the public and
commercial operators, right through to general use zones. More
information, including zoning maps can be obtained from the
part of the Authority website
Zoning plans are the major instrument through
which diverse and competing interests are balanced and managed in
the Park.(6) The Act provides a number of opportunities
for consultation with interested persons or groups in relation to
the preparation of and proposed changes to the Zoning Plan. These
- subsections 32(2)-(3) provides that a public notice must be
made to indicate that a zoning plan is to be prepared and to invite
interested persons to make representations, to which the Authority
is to give due consideration in drafting a plan
- subsections 32(8)-(9) provides that a public notice must be
made after the draft plan has been prepared and invite interested
persons to make representations, to which the Authority is to give
due consideration , and if it thinks fit, alter the draft plan
- subsection 32(10) provides that the draft plan and any
representations, along with the Authority s comments on those
representations, are submitted to the Minister
- subsection 32 (14) provides that the Minister can make
alterations to the draft plan but that he or she must make a report
specifying the alterations and setting out any views expressed by
the Authority. This report accompanies the final plan when it is
laid before Parliament under section 33.
Relevant provisions include:
- Under subsection 33(1), the final zoning Plan is laid before
Parliament not later than 15 sitting days after the day it was
accepted by the Minister. This is an opportunity for Parliament to
scrutinise the plan and gives an opportunity to Members and
Senators to raise any issues that they may have with the plan. Once
the zoning plan is tabled, there is a 15 sitting day period in
which a disallowance motion may be put and any debate concerning
the plan will happen at this point.
- If the Plan is disallowed, the Minister shall direct that a
fresh plan be prepared: subsection 33(4).
- After the 15 sitting period has expired, and if the plan has
not been disallowed, the Minister by public notice states that the
plan has come into operation; subsection 33(5).
In addition to the enabling legislation, the
Authority is subject to the provisions of the Commonwealth
Authorities and Companies Act 1997 (CAC Act), which provides
an accountability framework for statutory agencies to manage their
resources and remain responsive to ministers. (7) The
purpose of the CAC Act is summarised from the second reading speech
by John Fahey, Minister for Finance on 12 December 1996:
The underlying purpose of the proposed
Commonwealth Authorities and Companies Act is to replace all of
these diverse accountability requirements with a single set of core
requirements. The approach proposed will enable the accountability
requirements of Commonwealth controlled bodies to be viewed as a
whole and should significantly streamline the focus of the
government's and the parliament's interest in this area. Many of
the bill's requirements relating to Commonwealth authorities are
modelled on comparable areas of the Corporations Law as well as
best practice currently applying to individual authorities.
Another important feature of the bill is that it
extends the mandate of the Auditor-General to be the sole external
auditor of all Commonwealth authorities and companies, and their
subsidiaries. At the same time it will modernise the requirements
for the Auditor-General's reports on the financial statements of
authorities and make them consistent with those required by the
The CAC Act applies to authorities that are
corporate entities managed by a board. It requires the CEO of the
board to report to the responsible Minister (sections 15-16) and to
ensure the authority s activities comply with government policies
(section 28). (8)
2006 Review was released on 3 October 2006. The GBRMPA Review
was headed by Environment Department secretary David Borthwick and
made 28 recommendations. The Minister stated in his second reading
The Australian Government endorsed the review s
findings and recommendations and the review outcomes were widely
welcomed by stakeholders.(9)
In his description of the purposes of this
Bill the Minister also went on to say
This Bill delivers the first tranche of changes
that will strengthen governance arrangements and improve
transparency and accountability, particularly in relation to the
zoning plan process.(10)
The Review commenced in August 2005 and
encompassed the outcomes of the 2003 Uhrig Review of corporate
governance of statutory authorities.
The amendments proposed in the Bill ensure
that the current zoning plan for the Great Barrier Reef Marine Park
cannot be amended for at least seven years(11) and a
means of assessing the protection of the reef will be provided
through an Outlook Report that is to be tabled every five years. In
respect to the zoning plans, the Review concluded:
There is a need to ensure the benefits of zoning
accrue and that there is an appropriate period to establish
stability for the ecosystem and business environment. The Review
Panel recommends that, given the overall response
times of biological and human systems, a review and amendment of
all or part of a zoning plan should not be commenced until at least
seven years from the date the plan came into
The existing section 37 allowing amendments to
a zoning plan is to be repealed. The prohibition on amending zoning
plans within the seven year period will presumably mean that a
particularly precautionary approach will need to be taken in
deciding what the appropriate zoning classification should be for
For example, there are significant impacts of
climate change on the Great Barrier Reef predicted this century.
The recent Summary for Policy Makers of the Working Group II of the
4th IPCC Assessment Report released in April 2007 made the
following comments in relation to on Climate Change Impacts on
Australia and New Zealand.
Significant loss of biodiversity is projected
to occur by 2020 in some ecologically-rich sites including the
Great Barrier Reef and Queensland Wet Tropics
Ongoing coastal development and population
growth in areas such as Cairns and Southeast Queensland (Australia)
and Northland to Bay of Plenty (New Zealand), are projected to
exacerbate risks from sea-level rise and increases in the severity
and frequency of storms and coastal flooding by
Some of the potential changes affecting the
Great Barrier Reef include:
- coral bleaching events similar to those in 1998 occurring in
50% of the years by 2020(14)
- coral reef communities being widely replaced by algal
communities by 2030(15)
- over 95% of the Great Barrier Reef suffering bleaching events
annually by 2050(16)
- a 95% decrease in the geographical distribution of Great
Barrier Reef species by 2080.(17)
There is currently a dispute in relation to
Green Zone boundaries and the rights of fishermen and the matter is
appealed by the Commonwealth Director of Public
The Minister will be responsible for any
future decision to amend the zoning plan, not the Authority, but
this decision will be based on the Report and advice from the
Authority (recommendation 17(b) of the Review). Recommendation 17
recommends that the current arrangements for Ministerial approval
of the final zoning plan should remain, and in particular the
Minister should initially only have the power to suggest changes to
the Authority for consideration. If the Minister s suggested
changes are not incorporated in the final plan that is delivered to
the Minister, the Minister may amend the plan, but must report any
such changes to Parliament at the time the plan is tabled. Further
scrutiny and details of the actual clauses in the Bill are to found
below main provisions part of this Digest.
A major aspect of the recommendations of the
2006 Review is that the Authority should become subject to the
Financial Management and Accountability Act 1997 (FMA Act)
rather than the CAC Act. The report states:
The Authority should remain as a body corporate so
as to provide for collective decision making. However as regulatory
and advisory entity that is a non-commercial government body, it is
not appropriate for the Authority to be subject to the
Commonwealth Authorities and Companies Act 1997. The
Review Panel therefore proposes that the Authority be subject to
the Financial Management and Accountability Act 1997 as a
prescribed agency . The Chairperson of the Authority would then
have the role of chief executive for the purposes of the
Financial Management and Accountability Act 1997. The
Chairperson would also perform the role of agency head under the
Public Service Act 1999, with the agency comprising staff
employed under that Act.(18)
This change is a major focus of the Bill.
The 2006 Review also paid note to concerns in
regard to the Zoning Plan process arising from disagreement with
the scientific underpinning and criticisms of lack of transparency.
The 2006 Review noted:
that an effective relationship with recreational
and commercial fishing stakeholders is lacking. To an extent, such
tensions between the Authority and affected stakeholders were
inevitable in view of the substantial change to zoning arrangements
Part of the remedy proposed is that future
zoning arrangements be undertaken following approval of the process
and operational principles by the Minister, with extensive
consultation based on fully public and informed information.
(if any)Response to the 2006 GBRMPA Review
from the Australian Labor Party(20) and the Australian
Democrats(21) has been to welcome the preservation of
the Authority operating out of Townsville, and the protection of
the existing zonings based on independent and scientific
The Explanatory Memorandum states that the
Bill will have no financial impact.
Item 1 repeals the definition
of the Great Barrier Reef Consultative Committee as the Committee
is being abolished by this Bill and will be replaced by a
non-statutory advisory board. Recommendation 15 of the 2006 Review
recommended that the Board should be non-statutory based on terms
of reference issued by the Minister. Part of the rationale for the
Board to be non-statutory was that the existing Committee was not
operating effectively and has conflicting accountabilities to the
Authority and the Minister, (22) and submissions made to
the review considered that the role of the Committee has been
superseded by the Reef Advisory Committees and the Local marine
Advisory Committees.(23) The purpose of the proposed new
Board will be to provide the Minister with specific advice relating
to Marine Park protection and use, and be comprised of members from
business, community, Indigenous, environmental and other relevant
bodies (that is, representational, unlike the Authority, whose
members are to be appointed for the relevant expertise and
independence).(24) Appointments to the Board are to be
the responsibility of the Minister.
Item 2 inserts a definition
of the Great Barrier Reef World Heritage Area into the definition
section of the GBRMPA. This area is the same area as the Great
Barrier Reef already defined in the Act and is the area set out in
Schedule 1 of the GBRMPA. This amendment is necessary because of
the amendments relating to the financial and reporting requirements
in proposed Part VII of the GBRMPA whereby a Great
Barrier Reef Field Management Special Account is established for
the purposes of the management, protection or maintenance of the
Great Barrier Reef World Heritage Area.
Existing section 7 of the GBRMPA sets out the
functions of the Authority, which includes receiving and disbursing
money appropriated by Parliament for the Authority to provide
financial assistance to Queensland. The Explanatory Memorandum
explains that the deletion of the words for payment to the
Authority in item 3 is a necessary consequence of
the FMA Act applying to the Authority as the Authority will only
receive and hold money for and on behalf of the Commonwealth.
Items 5-11 make amendments as
a consequence of the FMA Act applying to the Authority. All
contracts and other agreements entered into and property and money
held by the Authority are entered into or held on behalf of the
Commonwealth. The Authority cannot hold real or personal property
or money on trust (proposed subsection 8(7)).
Similarly, proposed section 8A makes all financial
liabilities of the Authority to be liabilities of the Commonwealth.
As the Explanatory Memorandum explains the effect of [the FMA
applying to the Authority] is that the Authority will act on behalf
of the Commonwealth in relation to financial matters, rather than
in its own right .(25)
The 2006 Review recommended(26)
that to avoid conflicts the Chairperson, who is the Chief Executive
Officer, should not be subject to direction by the members of the
Authority in relation to the performance of functions and the
exercise of powers under the FMA Act and the Public Service Act
1999. This recommendation will be implemented by item
12, proposed subsection 8B.
The note to section 9 of the GBMPA stating
that the Commonwealth Authorities and Companies Act 1997
(the CAC Act) applies to the Authority is deleted by item
13 as this will no longer be the case.
Item 14 provides that the
Authority will be comprised by, in addition to the Chairperson, at
least 2 and not more than 4 other members and removes the
requirement that one member represent the interests of Aboriginal
communities adjacent to the Park. The 2006 Review recommended that
members not be representational.
Items 15 and 16 make
provision for disclosure of interests by members of the Authority
to the Minister and also to the Authority if there is a material
interest in a matter being considered by the Authority.
Item 17 repeals Part IV which
establishes the Great Barrier Reef Consultative Committee and which
is to be replaced by a non-statutory advisory board.
Items 18 to 25 make
amendments to section 32 of the GBRMPA to:
- increase the minimum public comment period for draft zoning
plans from one to three months
- provide that the public notice of the proposed plan issued
under section 32 must specify the operational principles prepared
under proposed section 34 and the report on the
environmental, economic and social values are available and where
these may be located or obtained.
Item 27 inserts
proposed sections 34 and 35. Proposed section 34
requires the Authority to determine principles before preparing a
zoning plan. The principles must cover the environmental, economic
and social objectives of the plan and may cover other matters
(proposed subsection 34(2)). The Minister must
either approve the principles as is or suggest amendments which the
Authority must consider and may or may not adopt. In the later
case, under proposed subsection 34(7) the Minister
must either approve the resubmitted principles as is or make such
alterations as the Minister thinks fit and then approve them. If
the Minister alters the principles he or she must prepare a report
which is tabled in Parliament specifying any alterations and
setting out the views of the Authority in respect to those
alterations. This is a similar process currently set out in section
32 in relation to alterations by the Minister to a zoning plan.
However, the principles are not a legislative instrument which
means that Parliament cannot disallow them (proposed
New section 35 requires the
Authority to prepare a report on the environmental, economic and
social values of an area before preparing a zoning plan. This
statement must be made public and the statement is not a
legislative instrument. The Bill does not specify that the
statement is to be tabled in Parliament.
Item 28 repeals section 37
and inserts proposed sections 37 and 37A to make
provision for the amendment or revocation of a zoning plan. A
zoning plan cannot be amended or revoked unless it has been in
operation for 7 years (or if amended, 7 years from the time of that
amendment), with the exception of typographical errors. The
Authority cannot give notice under section 32 that it intends to
amend or revoke a zoning plan unless the Minister approves the
publishing of that notice, and the Minister s approval cannot be
sought until the end of the 7 years. As the note to
proposed subsection 37(2) explains,
proposed subsection 37(8) provides that sections
32 and 35 apply in relation to actions under this new section in
same way as they apply to a zoning plan.
Item 29 repeals and
substitutes section 39I to reflect the changes as
a result of the FMA Act applying to the Authority that all monies
paid under the Environment Management Charge and received by the
Authority are received by and on behalf of the Commonwealth. The
provision provides that the amount received is appropriated out of
the Consolidated Revenue Fund for the purpose of the performance of
the functions of the Authority. As the Explanatory Memorandum
explains,(27) the provisions have the same practical
effect as under the existing provision.
Existing Part VA of the GBRMPA deals with the
collection of environmental management charges in the management of
the Great Barrier Reef and item 31 inserts
proposed Division 5A Application of the Financial
Management and Accountability Act 1997 and
proposed section 39QA to clarify the application
of the FMA Act to money collected or payable under the scheme.
Item 32 repeals existing Part
VII of the GBRMPA to insert new finance and reporting requirements
as a consequence of the application of the FMA Act to the
Authority. Proposed section 49 establishes the
Great Barrier Reef Field Management Special Account where certain
amounts received by the Authority(28) are credited. The
Explanatory Memorandum(29) provides more details on
The Authority is required to produce both an
annual report and 5 yearly Outlook Report in relation to the Great
Barrier Reef Region (proposed sections 53 and
54). The Outlook Report must address assessments
of the health of the ecosystem, current biodiversity within the
region, commercial and non-commercial uses of the regions, risks to
the ecosystem, the resilience of the ecosystem measures to protect
and manage the ecosystem, factors affecting future environmental,
economic and social values and the long term outlook for the
ecosystem. The first report must be given to the Minister by 30
June 2009. Before the report is given to the Minister its contents
must be peer-reviewed by at least 3 persons who, in the Minister s
opinion, possess the appropriate qualifications to undertake such a
peer-review (new subsection 54(4)). The Bill is
silent as to whether the peer-review is public or confidential.
Schedule 2 comprises 6 new Parts to the GBMPA
to allow for transitional arrangements to be in place after
commencement of the Bill. Thus, assets of the Authority before
commencement time will be taken to be assets held by the Authority
on behalf of the Commonwealth and liabilities of the Authority come
liabilities of the Commonwealth. The Commonwealth is also
substituted for the Authority in relation to any proceedings before
the courts. The current tenure of members of the Authority are
continued until the expiration of their appointments
Many of the recommendations of the 2006 Review
are taken up in this Bill with further amendments to follow in
relation to the recommendations dealing with consistency between
the GBRMPA and the Environment Protection and Biodiversity
Conservation Act 1999.
The Bill makes significant changes to the
governance arrangements of the Authority with the proposed removal
of the consultative committee which is to be replaced by a
non-statutory Board appointed by the Minister. The seven year
freeze on zoning plans is substantive as plans currently can be
amended and revoked at any time under existing section 37, under
the same conditions as the making of a plan (the giving of notice
and parliamentary approval).
- The author
acknowledges the work of Moira Coombs in the Background of this
- Great Barrier Reef
Marine Park Authority, Annual Report, 1977-78 at p. 2.
- John Uhrig, Review
of the Corporate Governance of Statutory Authorities and Office
Holders, p. 16.
- The related Acts are
the Great Barrier Reef Marine Park
(Environmental Management Charge-General) Act 1993 and the
Great Barrier Reef Marine Park
(Environmental Management Charge-Excise) Act 1993.
- Great Barrier
Reef Marine Park Act 1975, subsection 23(1A).
- In some cases,
zoning plans are supplemented by plans of management - these are
generally prepared for intensively used, or particularly vulnerable
groups of islands and reefs, and for the protection of vulnerable
species or ecological communities. Plans of management complement
zoning by addressing issues specific to an area, species or
community in greater detail than can be accomplished by the broader
reef-wide zoning plans.
- Dr Richard Grant,
The Uhrig Review and the future of statutory authorities,
Parliamentary Library Research Note no.50 2004-05.
- ibid at p. 1.
- Great Barrier Reef
Marine Park Amendment Bill 2007, Second Reading
Speech, House of Representatives, Debates, 28 March
2007, p. 2.
- Apart from when
there is a typographical error new section
- See: p. 129.
- Berkelmans, R., G.
De'ath, S. Kininmonth and W.J. Skirving, A comparison of the 1998
and 2002 coral bleaching events of the Great Barrier Reef: spatial
correlation, patterns and predictions. Coral Reefs,
23, 2004, pp. 74 83, and http://www.greenhouse.gov.au/impacts/publications/pubs/gbr.pdf.
- Wooldridge, S., T.
Done, R. Berkelmans, R. Jones and P. Marshall, Precursors for
resilience in coral communities in a warming climate: A belief
network approach. Marine Ecology Progress Series,
295, 2005, pp. 157 169.
- Jones, R.J., J.
Bowyer, O. Hoegh-Guldberg and L.L. Blackall, Dynamics of a
temperature related coral disease outbreak. Marine Ecology
Progress Series, 281, 2004, pp. 63 77.
- Review of the
Great Barrier Reef Marine Park Act
1975, 2006, p. 11.
- ibid., p. 10.
- Mr A Albanese MP and
Senator J McLucas, Joint Media Release, 2 October
- Senator Bartlett,
Media Release, 2 October 2006.
- see: p. 165.
- Review of the
Great Barrier Reef Marine Park Act
1975, p. 130.
recommendation 6(a), p. 169.
Memorandum, p. 5.
- Review of the
Great Barrier Reef Marine Park Act
1975, recommendations 7(a), (b) and 10.
Memorandum, paragraph 42, p. 9.
- For example, amounts
paid by Queensland to the Authority, amounts the Commonwealth has
allocated and gifts or bequests made for the purposes of the
account (new section 50).
Memorandum, paragraphs 48 to 52, pp. 10 11.
7 May 2007
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