Background to the inquiry and the Bill
Conduct of the inquiry
On 3 March 2011, the Senate referred the Environment Protection and
Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011 to the Senate
Environment and Communications Legislation Committee for inquiry and report by
13 May 2011. On 24 March 2011, the Senate granted an extension of time until 9 June 2011.
The reporting date was subsequently extended to 15 June 2011.
The Environment Protection and Biodiversity Conservation Amendment
(Bioregional Plans) Bill 2011 (the Bill) is a private Senator's bill to amend
the Environment Protection and Biodiversity Conservation Act 1999 (the
EPBC Act). The Bill was introduced by Senator the Hon Richard Colbeck on 2 March 2011.
On 18 April 2011, Senator Colbeck forwarded to the committee a
proposal to further amend the EPBC Act (Appendix 1). At the time of
writing, the additional proposed amendment has not been presented to the
Senate. This report addresses both the Bill and the proposed amendment.
The committee advertised the inquiry on its website and in The Australian,
and invited submissions from interested organisations and individuals. The
committee received 31 submissions and four supplementary submissions, as listed
in Appendix 2. A public hearing was held in Canberra on 13 May 2011.
A list of witnesses who gave evidence at the public hearing is at
Appendix 3. The committee thanks the organisations and individuals that
made written submissions, and those who gave evidence at the public hearing.
Note on references
References to submissions in this report are to individual submissions
received by the committee and published on the internet.
References to the committee Hansard are to the proof transcript.
Please note that page numbers may vary between the proof and official Hansard
This report is divided into three substantive chapters. Chapter one
provides an overview of the current process of establishing bioregional plans
and Commonwealth marine reserves compared to the process proposed in the Bill. Chapter
two considers matters raised for and against the Bill during the course of the
committee's inquiry. Chapter three outlines matters raised that are outside the
scope of the Bill.
Background and description of the Bill
The Bill would amend the EPBC Act to alter the process by which
bioregional plans are made.
Bioregional plans form part of Australia's environment management strategy.
They provide an overview of a region's biodiversity and conservation values,
and may establish objectives in relation to the values and strategies to
achieve the objectives.
In addition, the plans may include an overview of the region's key ecological
features, an analysis of regional pressures, and information to assist persons
to determine whether to seek the Environment Minister's approval before
conducting certain activities in the region. In this way a marine bioregional plan
provides increased certainty for people undertaking activities in marine
environments. They can more easily understand what the values in a region are
and whether their activity may require environmental approvals. While the
majority of plans cover marine areas in Commonwealth waters, the plans may also
be established for land‑based regions.
The Department of Sustainability, Environment, Water, Population and
Communities (the Department) advised that the plans are non-binding as they do
not declare or alter a person's rights or obligations. Their purpose is to
inform the administration of the EPBC Act.
The Minister is required to have regard to bioregional plans in making certain decisions
under the Act.
Such decisions include fisheries export approvals, listing and recovery of
species and ecological communities, and approvals for proposed activity in
More broadly, bioregional plans are intended to promote environment
management and conservation values. The information contained in the plans is
intended to foster a cross-jurisdictional approach to ecosystem management by
Commonwealth, state and territory agencies. The plans are also designed to
enhance community understanding of environmental management, and encourage
decision‑making by private industry that is consistent with environmental
While bioregional plans are not binding on persons, the committee notes
that the decisions that may be informed by bioregional plans can impact rights
and obligations. For example, without prior ministerial approval it is an
offence to act in a manner which damages, or is likely to damage, Commonwealth
The Minister may grant approval, and therefore an offence may be avoided, where
the proposed activity is consistent with a bioregional plan.
The Department advised that there are five steps to the process of
developing bioregional plans. These are:
Characterisation of the region, including its natural
systems and conservation values: a bioregional profile for each region
brings together the available scientific information about a region’s
biophysical and broad socio-economic characteristics and conservation values.
Regional assessment of the conservation values: this
step consolidates information about the conservation values, their status and
the pressures on them. The assessment is being used to categorise pressures on
conservation values and identify regional priorities in relation to managing
Development and release of a draft marine bioregional plan:
consultation with stakeholders and the community provides essential input in
developing a marine bioregional plan. The EPBC Act requires the Minister to
consult publicly on a draft of the plan [...]
Release of the marine bioregional plan: following the
Minister’s consideration of all input received on the draft plan it is
finalised and released.
Update and review of the marine bioregional plan:
plans are reviewed periodically to accommodate new information and data about
conservation values and the pressures acting upon them, regional priorities and
government policy priorities, and management and regulatory arrangements.
Section 176 of the EPBC Act outlines the framework for establishing
bioregional plans. Of the five steps, public consultation is expressly required
under subsection 176(1). In undertaking public consultation, the Minister
must publish, via the internet and relevant newspapers, a notice that includes
an overview of the draft plan and the process and timeframe for providing
Proposed amendments to the process
of establishing bioregional plans
Bioregional plans are not legislative instruments and are not subject to
parliamentary disallowance. The Bill would amend the EPBC Act to make
bioregional plans disallowable instruments under section 46B of the Acts
Interpretation Act 1901.
While bioregional plans would continue to be non‑legislative instruments,
the amendment would authorise either House of Parliament to disallow a
bioregional plan in accordance with Part 5 of the Legislative
Instruments Act 2003 as modified by section 46B of the Acts
Interpretation Act. The amendment would not operate retrospectively, but would apply
only to bioregional plans made after the commencement of the provisions in the Bill.
The amendment would require bioregional plans be tabled in each House of
Parliament within six sitting days of being made. If not laid before both
Houses within this timeframe, the bioregional plan would cease to have effect.
Once tabled, both Houses of Parliament would have 15 sitting days in which to
give a notice of motion to disallow the bioregional plan. If the motion is
agreed to or has not been withdrawn within a further 15 sitting days, the
bioregional plan would be taken to have been disallowed and would cease to have
effect from the date of the disallowance.
Therefore, even once a bioregional plan had commenced, the disallowance process
would mean that there would be a period of up to 36 sitting days in which it
would be uncertain whether the bioregional plan would continue to operate. Based
on the 2011 Parliamentary sitting pattern, this could translate to up to 180 calendar
days, that is, approximately six months.
Commonwealth marine reserves
Senator Colbeck's proposed amendment to the Bill would amend the EPBC
Act to alter the process for establishing Commonwealth marine reserves. Section 344 of the EPBC Act allows the
Governor-General to make Proclamations to establish Commonwealth reserves.
Commonwealth reserves may apply to an area of land, an area of sea, or an area
of both land and sea. Reserves covering areas of the sea and areas of both land
and sea are commonly known as 'Commonwealth marine reserves'.
Commonwealth marine reserves applying to an area of sea can cover either a
Commonwealth marine area, that is an area within Commonwealth waters, or an
area outside Australia for which Australia has obligations regarding the area's
biodiversity or heritage under an agreement with one or more country.
The bioregional planning process may be used to identify areas in which
to establish future Commonwealth marine reserves. Along with the state and
territory governments, the Australian Government has committed to establishing a
National Representative System of Marine Protected Areas (the NRSMPA) by 2012.
The NRSMPA has been under development by the Commonwealth, state and Northern
Territory governments since its creation was first agreed by these
jurisdictions in 1998.
The NRSMPA is a network of marine reserves across Commonwealth, state
and territory waters, of which Commonwealth marine reserves form one part.
As of 24 March 2011, there are 26 Commonwealth marine
The NRSMPA is intended to establish a marine protection strategy that is:
Comprehensive – include marine protected areas that
sample the full range of Australia’s ecosystems,
Adequate – include marine protected areas of
appropriate size and configuration to ensure the conservation of marine biodiversity
and integrity of ecological processes, and
Representative – include marine protected areas that
reflect the marine life and habitats of the area they are chosen to represent.
Commonwealth reserves and Commonwealth marine reserves are also part of
the Australian Government's implementation of the Guidelines for Protected
Area Management Categories developed by the International Union for the
Conservation of Nature (IUCN). Each reserve is assigned an IUCN category, which
influences the management policies applying to the reserve.
The EPBC Act requires a number of steps, including a process of public
consultation, to be undertaken before a Proclamation to establish a
Commonwealth reserve or Commonwealth marine reserve is made. The Minister is to
have regard to a report prepared by the Director of the National Parks
regarding the proposed reserve.
In preparing the report, the Director of National Parks is required to invite
public comment and allow 60 days for comments to be received. The comments, and
the Director's views regarding the comments, are to be noted in the report.
The Minister is also required to be satisfied that the appropriate IUCN
category will be applied to the proposed reserve.
Information provided on the Department's website outlines the process
for declaring a Commonwealth reserve or Commonwealth marine reserve as follows:
Step 1. The Director of National Parks publishes a notice
inviting the public to comment on the proposal to declare a Commonwealth
reserve over the area, allowing a minimum period of 60 days for comments. This
notice includes a statement of the proposed name of the reserve, the proposed
boundaries of the reserve and any zones within the reserve, the purpose for
which the reserve is to be declared, the IUCN category that the reserve (and
any zones) will be assigned to, and the purposes for which it is intended to
manage and use the reserve.
Step 2. Any native title holders, registered native title
claimants and native title representative bodies for the area are notified of
the proposed declaration, and given an opportunity to comment, in accordance
with the requirements of the Native Title Act 1993.
Step 3. The Director of National Parks provides the [Minister
for Sustainability, Environment, Water, Population and Communities] with a
report on the Commonwealth reserve proposal. The report must include any
comments received and the Director's views on the comments.
Step 4. If necessary a Regulation Impact Statement examining
any impacts that declaration of the proposed Commonwealth reserve would have on
business is prepared.
Step 5. [The Minister] considers the report from the Director
of National Parks.
Step 6. The Minister decides not to proceed and thus the
declaration process ends here OR the Minister is satisfied a reserve should be
established and the Governor-General is advised accordingly.
Step 7. The Governor-General makes a Proclamation declaring
the area to be a Commonwealth reserve...
Step 8. The Proclamation is registered on the Federal
Register of Legislative Instruments.
The Department advised that this consultation process exceeds the requirements
under the EPBC Act:
A draft Commonwealth marine reserve network for each region
will be published simultaneously with the draft Marine Bioregional Plan and a
single public consultation process will cover both proposals. For the draft
reserves network, however, this public consultation does not fulfil a statutory
purpose and does not replace the statutory public consultation process required
under section 351 of the Environment Protection and Biodiversity
Conservation 1999 (EPBC Act)...The government’s preferred marine reserve
network will then be subject to the processes of public consultation and
reporting by the Director of National Parks, leading to a decision by the
Minister as set down in the EPBC Act before the reserves are proclaimed by the
During the course of the committee's inquiry an example of this dual
consultation process was commenced. On 5 May 2011 the government announced the
consultation process on the draft South-west Bioregional Plan and the
associated proposed Marine Reserves Network. Minster Burke stated that 'we have
extended the 60 day consultation period to 90 days to ensure people have every
opportunity to provide feedback. The feedback and input the Government receives
will assist in finalising the proposal for a new marine reserves network and
bioregional plan for the south-west.'
This means that the marine reserve network will have a 90 day consultation
period as well as the statutory consultation period.
Proposed amendments to the process
of establishing Commonwealth reserves and Commonwealth marine reserves
Although Proclamations for Commonwealth reserves and Commonwealth marine
reserves are legislative instruments, section 44 of the Legislative Instrument
Act expressly states that the Proclamations are not subject to parliamentary
disallowance. A Commonwealth reserve or Commonwealth marine reserve comes into
being on the day a Proclamation commences. Unless the Proclamation specifies
otherwise, the Proclamation will commence the day after it is registered on the
Federal Register of Legislative Instruments.
The Bill would amend the process for establishing Commonwealth marine
reserves. The proposed Item 2, Schedule 1 of the Bill would amend section 344
of the EPBC Act to make Proclamations for particular Commonwealth marine
reserves disallowable instruments. The amendment would not operate
retrospectively, but would affect Proclamations made after the commencement of
the provisions in the Bill.
Item 2 only applies to Proclamations for Commonwealth marine
reserves covering Commonwealth waters or an area of both land and sea. The proposed
amendment would not affect Proclamations for Commonwealth reserves over land
areas or Proclamations for Commonwealth marine reserves for an area of sea that
is outside Australia but for which Australia has international obligations.
The disallowance timeframes for a Proclamation of a Commonwealth marine
reserve are similar to those outlined for bioregional plans in paragraph 1.13. The
proposed amendment would require Proclamations for relevant Commonwealth marine
reserves to be tabled in both Houses of Parliament within six sitting days of
the instrument being registered. If not tabled, the Proclamation would cease to
have effect from the day after the sixth sitting day.
Once tabled, both Houses of Parliament would have 15 sitting days in which to
give a notice of motion to disallow the Proclamation. If the motion is agreed
to or has not been withdrawn within a further 15 sitting days, the Proclamation
would be taken to have been disallowed and would cease to have effect from that
Disallowance is not retrospective.
Therefore, if disallowed, the Proclamation would have had effect, and therefore
the reserve would have been in existence, for up to 36 sitting days, which
could equate to approximately six months. Without the approval of the House
that disallowed the instrument, a further Proclamation to re-establish the Commonwealth
marine reserve could not be made within six months of the disallowance.
The Legislative Instruments Act does not specify, and therefore does not limit,
the grounds on which an instrument may be disallowed.
Parliament may disallow all or part of a legislative instrument.
There are several parts to a Proclamation to establish a Commonwealth reserve
or a Commonwealth marine reserve. The Proclamation must:
- allocate a name to the reserve;
- state the purpose for which the reserve is declared;
- state the depth of any land included in the reserve;
- state the depth of the seabed that is under any sea included in
the reserve; and
- assign an IUCN category to the reserve.
However, while this is possible under the disallowance process set out
in the Legislative Instruments Act, if part of the Proclamation was disallowed
the Proclamation would no longer meet the requirements of the EPBC Act.
Comment of the Scrutiny of Bills Committee
The Senate Standing Committee for the Scrutiny of Bills reviewed the
Bill and had no comment on its provisions.
The committee considered the Bill prior to Senator Colbeck circulating
proposed amendments on 18 April 2011.
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