Bills Digest no. 15, 2017–18
PDF version [554KB]
Sophie Power
Science, Technology, Environment and Resources Section
14 August 2017
Contents
Purpose of the Bill
Background
Great Barrier Reef Management Plans
Sunsetting of legislative instruments
Committee consideration
Senate Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Management plans
Enforcement provisions in management
plans
Revocation of management plans
Implications of the sunsetting regime
GBRMPA compliance with management
plans
Date introduced: 15 June 2017
House: House of Representatives
Portfolio: Environment and Energy
Commencement: The day after Royal Assent.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at August 2017.
Purpose of
the Bill
The purpose of the Great Barrier Reef Marine Park
Amendment Bill 2017 (the Bill) is to amend the Great Barrier Reef
Marine Park Act 1975 (the GBRMP Act) to ensure that management
plans are not revoked when regulations under the GBRMP Act are repealed and
remade as a result of the sunsetting regime under the Legislation Act
2003. The proposed amendments are technical in nature and do not appear
to change the substance of the regulatory measures applied under the GBRMP
Act.
Background
Great
Barrier Reef Management Plans
The Great Barrier Reef Marine Park was first established
in 1975 by the GBRMP Act to provide protection for the Great Barrier
Reef region, which includes the world’s largest coral reef ecosystem.[1]
The GBRMP Act also establishes the Great Barrier Reef Marine Park
Authority (GBRMPA), a Commonwealth authority responsible for the management of
the Marine Park. It also provides a framework for planning and management of
the Marine Park, including through zoning plans, plans of management and a
system of permissions.[2]
While the whole marine park is covered by a zoning plan, management plans are
also in place in certain areas:
Plans of management 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 Marine Park 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.[3]
There are currently four plans of management
for areas within the Great Barrier Reef Marine Park:
Sunsetting of legislative instruments
Part 4 of Chapter 3 of the Legislation Act
2003 provides for the automatic repeal of many legislative instruments
after a certain period of time (generally 10 years), unless particular steps
are taken to preserve them. This process is known as sunsetting, with the aim
being to keep legislative instruments up to date and in force only for as long
as needed.[5]
There are mechanisms in the Legislation Act for
extending the life of legislative instruments. In particular, the Attorney-General
may (by legislative instrument) defer sunsetting in some circumstances.[6]
In addition, either House of Parliament may also resolve to continue in force a
legislative instrument that would otherwise sunset.[7]
There are also some exemptions from the sunsetting
provisions of the Legislation Act. These exemptions are listed under
section 54 of the Legislation Act and Part 5 of the Legislation
(Exemptions and Other Matters) Regulation 2015.
The sunsetting provisions are currently being reviewed,
and the review committee is scheduled to report to the Attorney‑General
before 1 October 2017.[8]
Committee
consideration
Senate
Selection of Bills Committee
On 9 August 2017, the Senate Selection of Bills Committee
deferred consideration of the Bill to its next meeting.[9]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Scrutiny of Bills Committee had no comment on
the Bill.[10]
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents do not appear to have commented on the Bill.
Position of
major interest groups
At the time of writing, no major interest groups appear to
have commented on the Bill.
Financial
implications
According to the Explanatory Memorandum, the Bill will
have ‘no significant financial impacts’, but:
... indirectly supports improved economic efficiency as it is
expected that Commonwealth Government resources would be consumed if plans of
management made under the Act were inadvertently revoked due to the sunsetting
process and were required to be remade.[11]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible on the basis that it does not
engage any human rights. This is said to be because the Bill will have a purely
technical effect in preventing the unintended repeal of a plan of management,
rather than altering the substance of the obligations under such a plan.[12]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights
considered that the Bill did not raise human rights concerns.[13]
Key issues
and provisions
Management
plans
As noted earlier in this Digest, the GBRMP Act provides
a framework for planning and management of the Great Barrier Reef Marine Park.
The whole marine park is covered by a zoning plan, and management plans are also
in place in certain areas which are intensively used or particularly
vulnerable.
Part VB of the GBRMP Act sets out the processes
relating to management plans, including their preparation, amendment and revocation.
For example, when making a plan of management, GBRMPA is required to give
public notice and undertake consultation on the draft plan.[14]
For the purposes of the current Bill, the key relevant
provisions in Part VB of the GBRMP Act are section 39ZD and section
39ZH, which are explained in turn below.
Enforcement
provisions in management plans
Subsection 39ZD(5) in Part VB provides that plans of
management may have ‘enforcement provisions’, prohibiting or regulating the
doing of something, or requiring the doing of something (such as restricting
particular activities in certain areas).[15]
So, for example, the Shoalwater Bay (Dugong) Plan of Management contains
provisions restricting the use of fishing nets in the Shoalwater Bay area.[16]
Paragraph 66(2)(ba) of the GBRMP Act provides that
the regulations may give effect to the enforcement provisions of a plan of
management. The Great
Barrier Reef Marine Park Regulations 1983 (the Regulations) do contain
regulations giving effect to the enforcement provisions in each of the four
management plans (outlined earlier in this Digest).[17]
For example, regulation 171 creates an offence for the contravention of certain
enforcement provisions in the Shoalwater Bay (Dugong) Plan of Management.
Revocation
of management plans
Section 39ZH provides for the revocation of management
plans. Under subsection 39ZH(1), GBRMPA may revoke a management plan by
legislative instrument. Subsection 39ZH(4) further provides that, if
regulations providing for giving effect to the enforcement provisions of a management
plan are repealed or otherwise cease to have effect, the plan of management is
revoked.[18]
Implications
of the sunsetting regime
The Regulations are subject to the sunsetting provisions in
the Legislation Act and are due to ‘sunset’ on 1 April 2018,[19]
at which time they will be automatically repealed. Management plans under the GBRMP
Act are specifically excluded from the sunsetting provisions of the Legislation
Act.[20]
However, as currently drafted, subsection 39ZH(4) of the GBRMP Act means
that the management plans will be revoked when the Regulations are repealed automatically
under the sunsetting regime. As the Explanatory Memorandum states, this outcome
would also arise if the Government decided to make regulations that repealed
the existing Regulations for any reason—for example, as a pre-emptive action in
advance of their sunsetting on 1 April 2018:
If the Regulations are repealed and then remade to prevent
them from sunsetting, subsection 39ZH(4) will be triggered and the plans of
management will be revoked.[21]
Subsection 39ZH(4) would also result in the revocation of
management plans if the Regulations ceased to have legal effect for some other
reason (that is, other than by being repealed). This would include, for
example, if the Regulations became redundant due to amendments to the provisions
of the GBRMP Act that delegate legislative power, or if a court held
that the Regulations were invalid.
In any of these events, it would then be necessary for
GBRMPA to remake these plans, and as the Explanatory Memorandum identifies, making
a new management plan is ‘extremely resource intensive’:
The [Great Barrier Reef Marine Park] Authority is required to
comply with the requirements of Part VB of the Act when making a plan of
management, which includes giving notice and undertaking consultation on the
draft plan. It would be extremely difficult to align the making of new plans
with the remaking of the Regulations in circumstances where this is necessary
to prevent the Regulations from sunsetting, leaving the Great Barrier Reef at
risk of being without the protective measures in each plan.[22]
The Bill proposes to rectify this ‘unintended consequence
of the sunsetting regime’,[23]
although its remedial provisions would also seem to apply in other
circumstances in which the Regulations are not in force (for example, if
they were repealed or otherwise ceased to have effect). Item 2 of the
Bill would repeal subsection 39ZH(4) and replace it with proposed
subsections 39ZH(4) and (4A). Proposed subsection 39ZH(4) provides
that a plan of management containing enforcement provisions will be ‘of no
effect’ where there are no regulations in force giving effect to those enforcement
provisions. This means management plans will not be revoked, but will instead be
inoperative where there are no relevant regulations in force. The Explanatory
Memorandum suggests:
This will maintain the practical effect of the repealed
subsection, so that a plan of management is not required to be complied with in
circumstances where there are no regulations in force giving effect to the
enforcement provisions of the plan.[24]
Once any new regulations commence the relevant management
plan will be ‘revived’.[25]
Proposed subsection 39ZH(4A) provides that
subsection 39ZH(4) does not prevent a management plan from being amended or
revoked while it is ‘of no effect’. The Explanatory Memorandum suggests:
This is necessary because where it is proposed to revive a
plan of management through the commencement of regulations to give effect to
the enforcement provisions of the plan, amendments may need to be made to the
plan before it is about to be revived. Alternatively it may be necessary to
revoke a plan of management in circumstances where it is not proposed to revive
the plan.[26]
GBRMPA
compliance with management plans
Section 39ZI of the GBRMP Act requires GBRMPA to
perform its functions and exercise its powers in accordance with any management
plan that is in force. Item 3 proposes to add a proposed subsection
39ZI(4) which will provide that a management plan that has no effect (because
of subsection 39ZH(4)) will be taken not to be in force under section 39ZI.
This means that GBRMPA will not be required to comply with management plans
when there are no regulations in place, including as a result of the sunsetting
regime. The Explanatory Memorandum suggests:
It is not appropriate that the [Great Barrier Reef Marine
Park] Authority be required to comply with a plan of management in such
circumstances because there will be no corresponding expectation that the
public comply with it.[27]
[1]. Great
Barrier Reef Marine Park Authority (GBRMPA), ‘Facts
about the Great Barrier Reef’, GBRMPA website. See also: GBRMP Act, Part
V, especially section 30 (establishment of the Great Barrier Reef Marine Park).
[2]. See
further: GBRMPA, ‘How the
Reef is managed’, GBRMPA website; and GBRMP Act, Part II
(establishment, functions and powers of the GBRMPA) and Parts V–VB (core
provisions establishing the planning and management framework).
[3]. GBRMPA,
‘Plans
of management’, GBRMPA website. The objects of plans of management are set
out in section 39Y of the GBRMP Act. Plans of management are
legislative instruments but are not subject to sunsetting: GBRMP Act,
section 39ZF; and Legislation
(Exemption and Other Matters) Regulation 2015, regulation 12, table item
32(c).
[4]. GBRMPA,
‘Plans
of management’, op., cit.
[5]. Legislation
Act, section 49. See also Attorney-General’s Department (AGD), ‘Legislation
Act 2003’, AGD website.
[6]. Legislation
Act, sections 51 and 51A.
[7]. Ibid.,
section 53.
[8]. See
further: AGD, ‘Review
of the sunsetting framework under the Legislation Act 2003’, AGD website.
The review is required to be carried out under section 60 of the Legislation
Act.
[9]. Senate
Selection of Bills Committee, Report,
8, 2017, The Senate, 9 August 2017.
[10]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 7, 2017, The Senate, 21 June 2017, p. 27.
[11]. Explanatory
Memorandum, Great Barrier Reef Marine Park Amendment Bill 2017, p. 1.
[12]. The
Statement of Compatibility with Human Rights can be found at page 2 of the
Explanatory Memorandum to the Bill.
[13]. Parliamentary
Joint Committee on Human Rights, Report,
6, 2017, 20 June 2017, p. 26.
[14]. See,
for example, GBRMP Act, sections 39ZB, 39ZD and 39ZE.
[15]. Note
that those provisions are required to be included in a separate part of the
plan: subsection 39ZD(5).
[16]. Shoalwater Bay
(Dugong) Plan of Management 1997, clause 6.
[17]. Great Barrier Reef
Marine Park Regulations 1983, Parts 9–12.
[18]. In
other words, the substantive obligations (‘enforcement provisions’) in a
management plan dealing with matters such as access to, or use of, an area will
cease to exist if the regulations that support the practical enforcement of
those obligations (such as offences for contravention of enforcement
provisions) cease to exist.
[19]. Legislation
Act, subsection 50(2), table item 7. (This reflects that the principal regulations
were registered on the Federal Register of Legislation on 1 January 2005 as
part of the ‘bulk registration’ of older instruments on the Federal Register of
Legislation.)
[20]. Legislation
(Exemptions and Other Matters) Regulation 2015, regulation 12, table item
32(c) and the Note to section 39ZF of the GBRMP Act.
[21]. Explanatory
Memorandum, op. cit., p. 1.
[22]. Ibid.;
see also GBRMP Act, Part VB, sections 39ZB, 39ZD and 39ZE.
[23]. J
Frydenberg, ‘Second
reading speech: Great Barrier Reef Marine Park Amendment Bill 2017’, House
of Representatives, Debates, 15 June 2017, p. 6601.
[24]. Explanatory
Memorandum, op. cit., p. 4.
[25]. Ibid.
[26]. Ibid.
[27]. Ibid.,
pp. 4–5.
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