Bills Digest no. 129 2009–10
Antarctic Treaty (Environment Protection) Amendment Bill
2010
WARNING:
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
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Antarctic Treaty (Environment
Protection) Amendment Bill 2010
Date introduced: 10 February 2010
House: Representatives
Portfolio: Environment, Heritage and the Arts
Commencement: Sections 1 to 3 on Royal Assent. Schedule 1 will
commence on Royal Assent or when Measure 16 comes into force for
Australia, whichever is the later. Provisions will not commence if
Madrid Protocol Measure 16[1] does not come into force. The Minister will
publish the date in the Gazette when Measure 16 has come into
force.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is to
implement and to bind Australia in domestic law to changes recently
made to Annex II of the Protocol on Environmental Protection to the
Antarctic Treaty (Madrid Protocol).
The Antarctic Treaty (the Treaty) entered into force on 23 June
1961. Australia was one of the 12 original Parties to the Treaty.
The treaty sets aside the Antarctic as an area to be used to
exclusively for peaceful purposes, promoting freedom of scientific
research and exchange, and holds all territorial claims in
abeyance. Collectively, the Antarctic Treaty and a set of related
agreements[2]
–referred to as the Antarctic Treaty System (ATS)[3] – aim to regulate
relations among state in the Antarctic. There are 48 parties to the
Treaty, including 28 Consultative Parties.[4] The Secretariat is headquartered in
Buenos Aires, Argentina. Its basic functions are: the collection,
provision and dissemination of information about the ATS and
Antarctic activities; facilitation of information exchange between
the parties to the Treaty; supporting the annual Antarctic Treaty
Consultative Meeting and the Committee for Environmental
Protection.
The 1991 Protocol on Environmental Protection to the
Antarctic Treaty (Madrid Protocol) was created ‘in
response to proposals that the wide range of provisions relating to
protection of the Antarctic environment should be harmonised in a
comprehensive and legally binding form’. [5] The Protocol:
- designates Antarctica as a 'natural reserve, devoted to peace
and science'
- establishes environmental principles for the conduct of all
activities
- prohibits mining
- subjects all activities to prior assessment of their
environmental impacts
- provides for the establishment of a Committee for Environmental
Protection, to advise the Antarctic Treaty Consultative
Meetings
- requires the development of contingency plans to respond to
environmental emergencies
- provides for the elaboration of rules relating to liability for
environmental damage.[6]
There are a number of Annexes that accompany the Protocol.
They are:
Annex
I
Environmental Impact Assessment
Annex II
Conservation of Antarctic fauna and flora
Annex III Waste
Disposal and Waste Management
Annex IV Prevention of
Marine pollution
Annex V Area
Protection and Management
Annex VI Liability
arising from Environmental Emergencies.
Annex II to the Madrid Protocol relates to the conservation of
Antarctic fauna and flora. Annex II to the Protocol was amended and
adopted unanimously at the Antarctic Treaty Consultation Meeting
(ATCM) on 17 April 2009 and that amended version is contained in
Measure 16
(2009) Amendment to Annex II to the Protocol on
Environmental Protection to the Antarctic Treaty [1998] ATS 6
Baltimore, 17 April [2010] ATNIF 1.[7]
Measure 16 will automatically become effective on 17 April 2010
‘unless one or more of the Contracting Parties notifies
within the timeframe that it wishes an extension of that period, or
that it is unable to approve the measure. Once effective, measures
are legally binding on all Contracting Parties.’[8] The
National Interest Analysis accompanying the Parliamentary
tabling of Measure 16 states:
Measure 16 (2009) makes a series of minor
modifications to Annex II to the Protocol, which are to improve the
process for listing species for special protection, extend the
protection of native flora and fauna to include invertebrates,
broaden provisions for introduction of non-native species and
diseases to include unintended introductions, and make minor
editorial updates.[9]
It further states
Australia has been a Consultative Party to the
Antarctic Treaty since it came into force in 1961. The Antarctic
Treaty is a multilateral agreement which commits the Contracting
Parties to ensure that Antarctica is used exclusively for peaceful
purposes, guarantees freedom of scientific research, promotes
international scientific cooperation, allows for inspection of all
operations, sets aside the potential for disputes over territorial
sovereignty in Antarctica, and provides for regular meetings
between the parties. The Protocol is a multilateral agreement under
the treaty which commits parties to the protection of the Antarctic
environment and its dependent and associated ecosystems, and
designates Antarctica as a natural reserve, devoted to peace and
science.[10]
The act of ratification or accession to an international
instrument by Australia does not mean that it is automatically part
of Australian law. It is a generally accepted view, endorsed by a
report of the Senate Legal and Constitutional Affairs Committee,
that it is not incorporated into Australian domestic law until it
is implemented by legislation and that ‘this view has been
shared by successive governments of different political
persuasions.’[11] The Trick or Treaty report further comments on the High
Court view
In Dietrich v the Queen, Chief Justice
Mason and Justice McHugh (of the High Court) considered the effect
of the International Covenant on Civil and Political Rights (ICCPR)
in Australia law:
Ratification of the ICCPR as an executive act
has no direct legal effect upon domestic law; the rights and
obligations contained in the ICCPR are not incorporated into
Australian law unless and until specific legislation is passed
implementing the provision.[12]
The Committee report also makes reference to developments in
recent years to the indirect effects of treaties on domestic law
prior to their implementation by legislation.[13]
This Bill proposes to implement the treaty action Measure 16
(2009) Amendment to Annex II to the Protocol on Environmental
Protection to the Antarctic Treaty. Currently, the Joint
Standing Committee on Treaties (JSCOT) is examining the treaty
action. Measure 16 (the revised Annex II) was tabled in
Parliament on 2 February 2010.
JSCOT was established in 1996 ‘as part of a package of
reforms to improve the openness and transparency of the treaty
making process in Australia’.[14] The usual practice relating to treaty
actions tabled in Parliament is that all treaty actions go to JSCOT
for review and report before any action which binds Australia to
the terms of the treaty is taken.[15] In the case of this Bill, it has been introduced
and debate has commenced before the JSCOT report is available,
although committee hearings have already taken place.
The Explanatory Memorandum states that the Bill will have no
financial impact.
Schedule 1—Implementation of amendments
to Annex II of the Madrid Protocol
Items 1 to 3 insert new definitions into
subsection 3(1). Items 1 and 3
insert definitions of ‘organism’ and
‘take’. Item 2 includes ‘native
invertebrate’ in the definition of ‘specifically
protected species’.
Items 6 to 17 amend section 10 of the Act which relates to the
restrictions placed on obtaining permits.
Item 6 amends subparagraph 10(1)(b)(ii) to
remove references to ‘zoological gardens’,
‘cultural institutions’ and ‘cultural
purposes’ with the effect that permits are no longer
available to obtain specimens of native birds or native seals for
display in cultural institutions. Item 6 also
inserts a new heading for subsection 10(1).
Item 7 inserts proposed subparagraph
10(1)(b)(iia) which provides that a permit may be obtained
for the taking of native birds or native seals for zoological
gardens where such specimens are not available in existing captive
collections or where a compelling conservation need exists.
Item 9 inserts proposed subparagraph
10(1)(c)(iii) which is an additional restriction in
paragraph 10(1)(c) that relates to ‘specially protected
species’. If there is no suitable alternative, the permit may
allow the killing of a native bird or native seal.
Item 10 inserts proposed subsection 10(1AA)
which relates to permits for taking native invertebrates.[16] Proposed
subsection 10(1AA) provides that a permit must not
authorise the taking of native invertebrates unless the following
criteria are met:
- the Minister is satisfied that the species variety, the
animal’s habitat essential for its existence and the balance
of the ecological systems are maintained (proposed
subparagraph 10(1AA)(a)).
- the taking of native invertebrates will only be carried on to
the extent that is necessary for
- construction and
operation of scientific support facilities, or
- to supply
specimens for museums or other educational institutions or purposes
as the Minister thinks fit, or
- to supply
specimens for zoological gardens[17], or
- monitoring or
conserving the environment or an historic site or monument, or
- providing for
unavoidable consequences of scientific activities not authorised
under the second and third dash points above.
Proposed subparagraph 10(1AA)(c) relates to
permits for taking invertebrates that belong to ‘specially
protected species.’[18] Permits may be granted
- if it is for a compelling scientific purpose, and
- the Minister is satisfied that the activities authorised by the
permit will not jeopardise the existing ecological system or the
survival or recovery of the species or harm the local population of
the species, and
- no suitable alternative exists.
Subsection 10(1B) provides that a permit must not authorise a
person to gather, collect, endanger or otherwise interfere with a
native plant unless certain criteria are satisfied.
Item 11 amends subparagraph
10(1B)(b)(ii) to omit reference to ‘cultural
institutions’ or ‘cultural purposes’. The effect
of this amendment is that it is no longer possible to issue a
permit for the taking of native plants for cultural
institutions.
Item 12 inserts proposed subparagraph
10(1B)(c)(iii) to provide that a permit to kill a native
plant that is a member of a specially protected species
may be issued if there is no other suitable alternative
technique to achieve the purpose for which the permit is
granted.
Item 13 repeals subsection 10(1D) as it becomes
redundant with the creation of a new offence in section 19AC.
Currently subsection 10(1D) provides that a person authorised by a
permit to bring a native seal, native bird or native plant into the
Antarctic must ‘take all reasonable precautions to prevent
the introduction of micro-organisms not present in the
Antarctic.’
Item 15 repeals and substitutes subsection
10(3). Proposed subsection 10(3) states
that a permit must not authorise a person to bring a non-indigenous
cultivated plant into the Antarctic except under strict controls so
as to prevent its escape into the Antarctic environment. The
Explanatory Memorandum states that this will ‘enable the
introduction of cultivated plants or their reproductive propagules
for the purposes of growing food for consumption in the
Antarctic.’[19] Item 15 also inserts proposed subsection
10(3A) – this provides that a permit must not
authorise non-indigenous organisms to be brought into the Antarctic
other than for experimental use under strict controls so as to
prevent their escape into the Antarctic environment.
Item 16 amends subsection 10(4) to tighten the
provision to refer to all non-indigenous organisms brought to the
Antarctic. The conditions currently set out in subsection 10(4) in
relation to the issue of a permit, will apply to all non-indigenous
organisms and not be restricted to those that currently
‘might cause harmful interference with the natural system if
left unsupervised.’[20] Item 17 substitutes subsection 10(5)
to change all references to animals and plants to
‘organisms’. The proposed provision also requires that
a permit contain a rationale justifying why the organisms are being
introduced.
Item 30 inserts proposed section 19AC which
creates an offence in relation to the accidental introduction of
micro-organisms. Proposed subsection 19AC(1)
creates an offence for a person who introduces micro-organisms not
indigenous to the Antarctic by means of having brought an organism
into the Antarctic. The penalty is a maximum of 2 years
imprisonment or 120 penalty units ($13200) or both.
Proposed 19AC(2) provides that subsection (1) does
not apply if the organism or article was for use as food or that
the person took ‘all reasonable precautions’ to prevent
the micro-organisms being brought into the Antarctic, or the person
has a permit or recognised foreign authority to bring in the
micro-organism. Proposed 19AC(3) provides that
subsection (1) does not apply in relation to conduct in paragraph
(1)(a) if the conduct was done as the result of an emergency
situation such as saving a person from death or injury, or to
secure a ship, aircraft, equipment or facilities of high value, or
to protect the environment.
Proposed section 19AD creates offences in
relation to bringing food into the Antarctic. Proposed
subsection 19AD(1) prohibits a person from bringing a live
animal into the Antarctic for use as food. The penalty is a maximum
of 2 years imprisonment or 120 penalty units ($13200) or both.
Proposed subsection 19AD(2) states that a
person must ensure that controls are in place to prevent the escape
of organisms into the Antarctic environment when an organism is
brought into the Antarctic for use as food. The penalty is a
maximum of 2 years imprisonment or 120 penalty units or both.
Proposed subsection 19AD(3) creates an offence
for a person who brings poultry or any other bird product as food
into the Antarctic and those products are contaminated with
disease. The penalty is imprisonment for 2 years or 120 penalty
units or both. Proposed subsection
19AD(4) provides that subsection (3) does not apply if the
person has taken ‘all reasonable precautions’ to
prevent disease being brought into the Antarctic in bird products
used as food.
Proposed section 19AE creates offences for a
person who brings a non-indigenous organism into the Antarctic
without a permit or recognised foreign authority. Proposed
subsection 19AE(1) states that the section, and hence
potentially the offences, applies if a person brings a
non-indigenous organism into the Antarctic and that action is not
in accordance with a permit or recognised foreign authority, and
the organism poses a risk to native flora and fauna. An action
‘not in accordance’ includes the situation where either
the person does not have a permit or the conduct cannot be
authorised by issuing a permit Proposed subsection
19AE(2) requires that the person remove or destroy the
organism and any progeny of the organism as soon as is practicable.
The penalty is 2 years imprisonment or 120 penalty units or both.
Proposed 19AE(3) states however that subsection
(2) does not apply if:
- it is not feasible to remove or destroy the organism, or
- a greater adverse environmental impact would be caused by the
removal or destruction of the organism, or
- the organism is to be used as food.
Proposed subsection 19AE(4) requires that a
person ‘take all reasonable steps to avoid’ the
consequences of bringing a non-indigenous organism into the
Antarctic in the circumstances outlined in subsection 19A(1). The
penalty for not taking all such steps is 2 years imprisonment or
120 penalty units or both. Proposed subsection
19AE(5) states that subsection (4) does not apply if the
organism is to be used as food.
Item 32 repeals and substitutes the revised
Annex II to the Protocol on Environmental Protection to the
Antarctic Treaty in Schedule 3 of the Act.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 6277
2784.
[2].
These related agreements which are
part of the Antarctic Treaty System are: The
Agreed Measures for the Conservation of Antarctic Fauna and
Flora (1964) (entered into force in 1982), The
Convention for the Conservation of Antarctic Seals (1972), The
Convention for the Conservation of Antarctic Marine Living
Resources (Canberra 1980), The
Protocol on Environmental Protection to the Antarctic Treaty
(Madrid 1991)
Moira Coombs
15 March 2010
Bills Digest Service
Parliamentary Library
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