Bills Digest no. 25 2008–09
Great Barrier Reef Marine Park and Other Legislation Amendment Bill
2008
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
Date introduced:
18 June 2008
House:
House of Representatives
Portfolio:
Environment, Heritage and the Arts
Commencement:
Sections 1- 3 commence on Royal Assent, with Schedules
1-3 commence the day after Royal Assent. Schedules 4 - 6 commence on a
date to be fixed by proclamation, or failing that, 12 months from the
day of Royal Assent.
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/.
This Bill implements the conclusions
of a 2006 review of the Great Barrier Reef Marine Park Act 1975 (‘the
GBRMP Act’), aimed at ensuring a relevant modern robust regulatory framework
that delivers efficient and effective protection and management of the
Great Barrier Reef, assisted through amendments which provided for:
- the restoration of Indigenous expertise to the Great Barrier Reef
Marine Park Authority
- streamlining of environmental approval and permitting processes and
requirements
- enhancement of the investigation, enforcement and offence provisions,
providing for a more tailored and targeted approach,
- promotion of more responsible use of the park and the provision of
new emergency management powers, and
- improved alignment and integration between the GBRMP Act, the Environment
Protection and Biodiversity Conservation Act 1999 (the EPBC Act)[1] and other Commonwealth and Queensland
legislation.
According to the Report of the Panel of the
2006 Review
of the Great Barrier Reef Marine Park Act 1975:
The Great Barrier Reef has significant environmental,
social, economic and cultural values. It is the world’s largest coral
reef ecosystem, and within Australia the Great Barrier Reef Marine Park
is the largest of any Commonwealth or State Marine Protected Area. The
Marine Park extends over 2 300 kilometres along the Queensland coastline
and covers approximately 344 400 square kilometres. It includes some
2 900 individual reefs, 900 islands and cays and 70 distinct habitat
types, called bioregions. These habitats contain great biodiversity
including 30 per cent of the world’s soft corals, 30 per cent of Australia’s
sponges, six of the world’s seven species of marine turtle and breeding
areas for humpback whales and dugong.
The Great Barrier Reef and the surrounding coastal
and catchment areas support substantial economic activity.
In addition, there are more than 70 Traditional Owner
groups along the Great Barrier Reef coast from Bundaberg to the eastern
Torres Strait islands. Their traditional customs, spiritual lore and
beliefs continue to be practised today. The sense of custodianship extends
to all marine resources, and the sea and islands are collectively considered
to be an integral part of their traditional country, known as ‘sea country’.[2]
Professor Don Anton has pointed out that one of the current
environmental issues of importance in Australia is the threat to the Great
Barrier Reef (the largest coral reef in the world) posed by increased
shipping and its popularity as a tourist site.[3] It also faces threats from Coral
bleaching and land-based sources of elevated nutrient levels.
In 1975, the Fraser Government enacted the GBRMP Act
which created the Great Barrier Reef Marine Park Authority (‘the Marine
Park Authority’) and also defined what activities were prohibited on the
Great Barrier Reef for the purposes of protecting the Reef against harmful
activities. The Great Barrier Reef was selected as a World Heritage Site
in 1981 and is the second largest marine protected area in the world.
The Marine Park Authority manages the Reef and does so in partnership
with the Government of Queensland, to ensure that the Reef’s significance
is widely appreciated and that activities in the Reef happen in a sustainable
manner. Protection and conservation of the Reef occurs through the use
of a combination of zoning, natural resource management and land planning,
resource and information sharing, permits, education and incentives.
Up until 1999, there were four main zones in the Great
Barrier Reef Marine Park, each with its own zoning plan. The Great
Barrier Marine Park Zoning Plan 2003 superseded all previous zoning
plans, coming into effect on 1 July 2004 for the entire Marine Park, and
is widely regarded as establishing a new international benchmark for the
conservation of marine ecosystems.
The main tool used in managing the Great Barrier Reef
is zoning. Each marine park zone has specific management objectives,
which determine the human activities that may or may not take place
in that zone and you must have a permit for certain activities. However,
most zones allow a wide range of uses such as fishing and boating (over
95 percent of the Great Barrier Reef Marine Park is zoned for general
use). Only in a few zones are certain activities prohibited.[4]
As part of its 2004 election platform, the then Howard Government made a
firm commitment to review the GBRMP Act ‘to improve the performance of
the Great Barrier Reef Marine Park Authority, its office holders and its
accountability frameworks’.[5]
On 23 August 2005 the then Minister for the
Environment and Heritage, Senator the Hon. Ian Campbell, announced a review
of the GBRMP Act with the following terms of reference:
- The review focuses on:
- the role of office holders
- the functions of the Authority
- accountability frameworks, and
- consultation mechanisms.
- The review also provides advice, in light of the Uhrig principles,
on:
- the appropriateness of current arrangements;
- the efficiency and effectiveness of current consultation mechanisms;
- any changes to improve the corporate governance arrangements of the
Authority;
- any adjustment of the function of the Authority;
- improving consistency between the GBRMP Act and the EPBC Act; and
- any legislative amendments required to make such changes.[6]
The Background Paper accompanying the terms of reference
for the 2006 Review also mentioned that:
The Environment Protection and Biodiversity Conservation
Act 1999 (the EPBC Act) is the Commonwealth’s primary legislation
for environmental regulation. The review provides an opportunity to
ensure the alignment of the GBRMP Act with the EPBC Act.
In response to the stakeholder response to the rezoning
of the Great Barrier Reef Marine Park (the Marine Park), the Authority
commissioned a report on its consultation mechanisms, the “Futureye”
report.
In 2006, following this review of the GBRMP
Act, a range of measures were proposed to enhance the regulatory
and policy frameworks relating to management and long-term protection
and sustainability of the Marine Park. Further information on the review
and its outcomes can be found in the report titled Review
of the Great Barrier Reef Marine Park Act 1975. Public
submissions to the review can be found here: Public
submissions.
The amendments provided
for in this Bill address the key outstanding recommendations of the review
dealing with the regulatory framework.
The Bill was referred to the Senate Standing Committee
on Environment, Communications and the Arts for inquiry which reported
on 15 September 2008.
Details of the inquiry
can be found here: http://www.aph.gov.au/Senate/committee/eca_ctte/gbrmpa2008/index.htm
The Explanatory Memorandum states that there is no financial
impact.
Item 1 – New Objects Section
A proposed revised ‘Objects’ section(2A) incorporates
mainstream and core fundamental environmental concepts and goals reinforced
by an explicit future oriented focus to guide the administration and management
of the GBRMP Act. Currently, the ‘objects’ section is to be found in section
5 of the GBRMP Act.
The proposed primary object of the GBRMP Act is “the
long term protection and conservation of the environment, biodiversity
and heritage values of the Great Barrier Reef Region”.
The following subsidiary objects also apply, but only
where they remain consistent with the achievement of the primary object:
- allowing ecologically sustainable use of the Great Barrier Reef for
public enjoyment, education, economic and research activities.
- encouraging engagement by communities (interested persons and groups)
and stakeholders in the protection and management of the Great Barrier
Reef Region.
- assisting in meeting Australia’s responsibilities in relation to the
environment and protection of world heritage.
Proposed subsection 2A(3) articulates the principal
mechanisms by which it is envisaged that these objects are to be achieved.
The description of the mechanisms represent good drafting practice in
that they provide for a framework understanding of the operation of the
GBRMP Act.
Items 2-18 & 23 – Definitions
These proposed amendments update the key definitions
used in this and other schedules in the Bill, and repeal redundant definitions.
Where relevant, it is proposed that certain terms be defined by reference
to, or consistent with the EPBC Act and other relevant legislation. Of
note, for example, is item 12which contains
proposed subsection 3(1). This defines the term
‘precautionary principle’ consistently with its meaning under the
EPBC Act. Precautionary principle means ‘the principle that lack of full
scientific certainty should not be used as a reason for postponing a measure
to prevent degradation of the environment where there are threats of serious
or irreversible environmental damage’.
Senator Barnaby Joyce has expressed concern with the
inclusion and potential breadth and uncertainty of operation of the precautionary
principle in the Act.[7]
The precautionary principle is not a new concept. It
has been used in international agreements and various national strategies
and policies, for over two decades.[8]
It is a well appreciated and instructional principle within Australian
government resource management strategies, at the Commonwealth, State
and Territory, and local government levels.[9]
However until 2006, the case law in Australia did not seem to provide
consistency or clarity about its practical operation and implications.
The case of Telstra Corporation Limited v Hornsby Shire Council
[2006] NSWLEC 133, heard in the NSW Land and Environment Court, seems
to provide a useful and instructive consideration of the precautionary
principle in Australian case law. The case concerned itself with the precautionary
principle as expressed in the NSW Protection of the Environment Administration
Act 1991 (below). This is very similar to that proposed by this Bill.
If there are
threats of serious or irreversible environmental damage, lack of full
scientific certainty should not be used as a reason for postponing measures
to prevent environmental degradation. In the application of the
principle… decisions should be guided by:
- careful evaluation to avoid, wherever practicable, serious or irreversible
damage to the environment; and
- an assessment of risk-weighted consequence of various options.
Deacons Foreign Legal Counsel,
Rebecca Mohr, provided the following summary of the salient points of
the case.
- The principle and accompanying need to take precautionary measures
is "triggered" when two prior conditions exist: a threat of
serious or irreversible damage, and scientific uncertainty as to the
extent (likelihood and severity) of possible damage.
- Once both are satisfied, "a proportionate precautionary measure
may be taken to avert the anticipated threat of environmental damage,
but it should be proportionate."
- The threat of serious or irreversible damage should invoke consideration
of five factors: the scale of threat (local, regional etc); the perceived
value of the threatened environment; whether the possible impacts are
manageable; the level of public concern, and whether there is a rational
or scientific basis for the concern.
- The consideration of the level of scientific uncertainty should involve
factors which may include: what would constitute sufficient evidence;
the level and kind of uncertainty; and the potential to reduce uncertainty.
- The principle shifts the burden of proof. If the principle applies,
the burden shifts: "a decision maker must assume the threat of
serious or irreversible environmental damage is… a reality [and] the
burden of showing this threat… is negligible reverts to the proponent…"
- The precautionary principle invokes preventative action: "the
principle permits the taking of preventative measures without having
to wait until the reality and seriousness of the threat become fully
known".
- “The principle should not be used to try to avoid all risks."
- The precautionary measures appropriate will depend on the combined
effect of "the degree of seriousness and irreversibility of the
threat and the degree of uncertainty… the more significant and uncertain
the threat, the greater…the precaution required". “…measures should
be adopted… proportionate to the potential threats".[10]
Items 19, 20, 23 & 24 – Jurisdictional application
of the Act
Given developments in Australian case law which have
further articulated and strengthened the constitutional basis for the
GBRMP Act, item 20 inserts a new section 5 which clarifies
the jurisdictional application of the GBRMP Act, confirming its application
to everyone within Australia, its exclusive economic zone, continental
shelf and external territories.
Items 21 & 22 – Factors guiding administration
of the Act and management of the Marine Park
In addition to reaffirming that the Marine Park Authority
must perform its functions consistent with the objects of the GBRMP Act,
item 21 inserts new subsections 7(3) and (4) which
provide that the Marine Park Authority may publish plans and policies
about the way it intends to manage the Park or perform its other functions,
and the way in which it considers that the GBRMP Act, regulations, or
a zoning plan applies. These plans and policies are intended to have educative
and guidance value for Marine park users and other interested persons.
However, such plans and policies are not intended to be legally binding
or to impose obligations on the Marine Park Authority. To avoid doubt,
new subsection 7(5) makes it clear that such plans and policies
are not legislative instruments.
Item 25 – Application of the Legislative Instruments
Act, subsection 14(2)
Proposed subsection 66(13) provides that regulations
made under the GBRMP Act may apply, adopt or incorporate any matter contained
in other instruments as in force or existing from time to time, notwithstanding
subsection 14(2) of the Legislative Instruments Act.[11]
This addresses the close interaction in practice between the GBRMP Act
and the Queensland legislation.
Item 1– Indigenous expertise on the Authority
Proposed subsection 10(6A) requires that at least
one member of the Marine Park Authority be an indigenous person and explicitly
states that they must have knowledge of, or experience concerning indigenous
issues relating to the Marine Park.
According to the Explanatory Memorandum, this requirement
was inspired by the recognition of the long and continuous relationship
with the Great Barrier Reef had by more than 70 Traditional Owner groups
living along the coast from Bundaberg to Torres Strait, has obviously
generated invaluable knowledge about the traditional use of the Marine
Park and indigenous issues more generally. Access to such expertise is
considered especially valuable in terms of sustainable management of the
Great Barrier Reef.[12]
This partly reverses the change made by the Great
Barrier Reef Marine Park Amendment Act 2007 which deleted
of the requirement that one member of the Authority represent the interests
of indigenous\ communities adjacent to the Park. Note however, the change
proposed by this Bill does not require the person in question to ‘represent’
indigenous interests.
Item 2 – The holding of meetings
Item 2 proposes that a note be inserted at the
end of the current subsection 17(1) making reference to section
33B of the Acts Interpretation Act, which deals with the ability
of statutory authorities to hold meetings via electronic means such as
telephone and videoconferencing.
Item 4 – Decisions outside of meetings
Proposed section 18 enables the Marine Park Authority
to conduct its business outside of formal meetings as long as it is done
so under a proper governance framework. The purpose of this is to provide
for more timely and efficient decision-making by the Authority, given
the large number of statutory powers and functions that it must perform.
Specifically, proposed section 18 provides that
the Marine Park authority may make a decision outside a formal meeting
if:
- the majority of members who would be entitled to vote on that issues
in a formal meeting, indicate their agreement with the proposed decision,
in a manner consistent with the method determined by the Marine Park
Authority;
- that the Marine Park Authority has the power to make such decisions
without a meeting; and
- that all were informed of the proposed decision, or reasonable efforts
were made to inform all the members of the proposed decision.
Part 2 - Amendments to the GBRMP Act
Items 5 & 8 – The requirements of ‘public notice’
Proposed subsection 18(1) defines ‘public notice’
thus laying down the requirements for the issuing of public notice. The
notice must be published in the gazette, a newspaper circulating generally
in Queensland, on the website of the Marine Park Authority, and any such
other manner (if any) that the Marine Park Authority considers appropriate.
Item 6 – Clarifying the definition of ‘zone’
According to the Explanatory Memorandum, the amendment
to the current subsection 3(1) is intended to clarify that the
term zone can and does include an area that is created or identified by
a zoning plan, even though it may not formally be called a ‘zone’. Thus,
areas such as ‘designated areas’ identified by the Great Barrier Reef
Park Zoning Plan 2003, are ‘zones’ for the purposes of the
GBRMP Act.[13]
Items 12 & 14 – Proclaiming the Marine Park: Procedural
Requirements
Item 12 places a requirement on the Governor-General
to consider a report prepared by the Marine Park Authority prior to making
a proclamation under section 31, declaring an area to be part of
the Marine Park, or excising areas from the Marine Park. Presently, the
Governor General only needs to consider a report prepared by the Marine
Park authority when declaring an area to be part of the Marine Park.
Item 14 proposes an amendment to current section
31 dealing with the requirements for proclamations. It imposes an
obligation on the Marine Park Authority to provide public notice and details
of a proposed proclamation and to invite public consultation. Any comments
received in this regard are to be included in the report to the Governor-General,
who is responsible for making the proclamation.
Items 15 to 29 – Clarification and modernisation of
zoning plan provisions
These items propose to tidy up provisions relating to
development or zoning plans.
The two substantive amendments are items 15 and 17.
Significantly, they provide for greater synergy with relevant Commonwealth
and Queensland legislation.
Items 15 & 17 – the assignment of IUCN protected
management areas
To ensure consistency in defining and managing marine
protected areas, Australia has adopted the World Conservation Union's
(IUCN) internationally recognised set of seven management
categories. As such, proclamations declaring Commonwealth marine protected
areas must assign the reserves, and any zones within them, to one of the
seven IUCN Protected Area Management Categories.
Proposed section 32B and subsection 35A(2)
make it a requirement that a zoning plan must designate, for each zone
or part of a zone, an IUCN category. Also, in designating an IUCN category,
the Marine Park authority must have regard to the purposes for which the
zone may be used or entered, and the Australian IUCN Reserve Management
Principles for that category, as set out in the EPBC Act.
According to the Explanatory Memorandum, the designation
of an IUCN category is not meant to affect or determine the permitted
uses of particular zones and areas of the Marine Park. As per current
practice, it will be the zoning plan that defines the activities that
may be legally undertaken in particular zones. Designation of IUCN categories
is done for classification purposes and to assist with reporting. To be
clear, the designation of the IUCN categories does not provide a basis
for “reading down” the provision of the zoning plan.[14]
Item 15 – Considerations in developing a zoning plan
Proposed section 32 updates the list of objects
that must be considered in developing zoning. Specifically, it adds the
following objects:
- regulation of the Marine Park so as to protect the ecosystem within
the Great Barrier Reef Region and so as to ensure its ecologically sustainable
use, including ecologically sustainable traditional use
- management of the competing demands of the Marine Park
- protection of areas of high conservation value, and
- protection of the world heritage values of the Great Barrier Reef
World Heritage Area.
Item 17
Considerations in developing a zoning plan
Proposed subsection 325 lists the matters that
the Marine Park Authority must have regard to when preparing zoning plans.
The intent is to enhance synergy and consistency with the EPBC Act and
relevant Queensland legislation. Amongst other matters, these include:
any approved conservation advice, bioregional recovery
plan, recovery plan threat abatement or wildlife conservation plan that
is relevant
any habitat that is specified in the zoning plan as critical
habitat, and
various matters contained in the EPBC Act or Queensland
Marine Parks Act 2004 or Nature Conversation Act 1992 which
are relevant.
The Minister’s consideration of a submitted zoning
plan
Proposed subsection 35C(8) provides that in deciding
whether to accept a zoning plan under section 35C, the Minister
must have regard to the obligations of Australia under international law,
including obligations under any agreement or arrangement between Australia
and another country or countries.
Item 37 – Considerations in preparing plans of management
In developing a plan of management, proposed subsection
39ZD(2) imposes a requirement the Marine Park Authority to have regard
to any key threatening process, critical habitat, any approved conservation
advice, recovery plan, threat abatement or wildlife conservation plan
as identified or established under the EPBC Act, any plan made under relevant
Queensland legislation.
Part 1 - Amendments to the EPBC Act
Item 2 – Establishing the Great Barrier Reef Marine
Park as a matter of National Environmental Significance (NES)
One of the three main areas covered by the EPBC Act is
environmental impact assessments. One of the areas of assessment and approval
is that of activities that are listed as having a significant impact on
matters of NES.
The EPBC Act identifies seven matters of national environmental
significance:
- World Heritage properties
- National heritage places
- Wetlands of international importance (Ramsar wetlands)
- Nationally listed threatened species and ecological communities
- Listed migratory species
- Commonwealth marine areas
- Nuclear actions
Establishing the Great Barrier Reef Marine Park as a
matter of NES will make it subject to the EPBC Act assessment and approval
requirements in relevant circumstances – that is, in relation to actions
within or outside the Marine Park which have or are likely to have a significant
impact on the environment.
The Explanatory Memorandum points out that this amendment
does away with the current less direct and inefficient process for seeking
an assessment and permission for certain action in the Marine Park that
is likely to have a significant impact on the environment. The amendment
also results in greater clarity about impacts that must be assessed and
approved, promoting greater consistency and transparency.
Requirement for approval of activities in the Great
Barrier Reef Marine Park
Proposed subsection 24B provides for civil penalty
and offence provisions designed to prohibit and punish action taken in
or outside the Marine Park that have or will have a significant impact
on the environment in the Marine Park, or is likely to do so. The civil
penalty for an individual is 5,000 penalty units[15]
and for a body corporate, it is 50,000 penalty units. Approval issued
under Part 9[16] of the
EPBC Act is one of the exceptions to the prohibition.
Offences relating to the Great Barrier Reef Marine
Park – the imposition of strict liability elements
In order for an offence to be committed, it is often
the case that several discrete physical elements must occur or exist.
To take a example from the Bill, proposed subsection 24C(1) requires that:
- a person takes an action; and
- the action is taken in the Great Barrier Reef Marine Par: and
- the action results or will result in a significant impact on the environment.
All three of these must occur or exist in order for the
offence to have been committed. However, for each of these physical elements,
the law also generally requires that a ‘fault’ element must be present
– either intention, knowledge, recklessness or negligence.
However, on occasions, legislation may be drafted so
that strict liability applies to some or all of these physical elements.
This means that the prosecution does not have to prove any fault element
in relation to the relevant physical element, although the defence of
reasonable mistake is available. If strict liability applies to one or
more physical elements of an offence, the evidentiary burden on the prosecution
is significant less, making it easier to gain a conviction.
According to the Explanatory Memorandum, effective regulation
and management is essential to the long term ecological sustainability
of the Great Barrier Reef. The Great Barrier Reef is widely known for
its significance in general, if not more specific terms. Moreover, the
activities and boundaries allowed within the Marine Park are widely publicised.
Proving to a court, beyond reasonable doubt, that a defendant was ignorant
or reckless to the fact that a particular area was part of the Marine
Park, can be quite problematic from an evidentiary point of view. Making
a prosecutor prove this would reduce the number of convictions, weakening
the deterrent effect of the offence provisions, thus frustrating the objects
of the GBRMP Act. The government’s intention is that the imposition of
strict liability will promote greater efficacy and integrity in the supervision
of the regulatory scheme.
Much has been written by various members of the legal
profession, human rights advocates, about the imposition of strict liability
operating very unfairly in individual cases. The Explanatory Memorandum
indicates that the drafters are cognisant of such concerns, but consider
that the imperatives of the environmental context meet the criteria warranting
the imposition of strict liability having considered the Senate Scrutiny
of Bills Committee Sixth
Report of 2002: Application of Absolute and Strict Liability Offences
in Commonwealth Legislation, as well as the Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.[17] Consistent with the views of
many legal writers, human rights advocates and so forth, the aforementioned
publications embrace an understanding that the stigma and public punishment
associated with the finding of guilt for a criminal offence, have traditionally
made the element of fault a central tenet of criminal law.[18]
That being said, there has been a significant growth in the application
of strict liability - especially in regard to regulatory offences - as
a relatively cheap, efficient and effective way of deterring, controlling
and regulating particular conduct (i.e. for administrative convenience).
In order to displace the requirement for fault and create a strict liability
offence for certain conduct, the aforementioned publications proposed
that certain considerations should be applied to the particular circumstance
in question.
Strict liability is thought to be inappropriate where
the regulator is readily able to assess the truth of the matter. Such
cases would include those where the capacity to comply with the law is
relatively straightforward and one over which a person has control. The
abovementioned report of the Senate Scrutiny of Bills Committee opines
that strict liability should only be introduced after thorough consideration
of all available options, and it should not be driven by some predetermined
formula or for mere administrative convenience. Furthermore, where strict
liability is used, the general defence of mistake of fact with its lower
evidentiary burden acts as a necessary safeguard and that the Criminal
Code should continue to expressly provide for this. The Criminal Code
should also continue to make it clear that strict liability should not
make any other defence unavailable. Finally, strict liability should only
be applied where there appears to be general public support and acceptance
for that measure, and where that penalty does not include imprisonment.
[19]
Proposed subsection 24C prohibits the taking of
an action in or outside the Marine Park that has or will, or is likely
to result in significant impact on the environment, unless the action
is approved under Part 9 of the Act, or one of the ‘exceptions’ listed
in the section apply. The strict liability elements are those that relate
to the place where the action occurred and / or where the effect of the
action will occur. Thus the prosecution will not have to prove that a
person knew, or were reckless or negligent about, whether they were in
the Park when they took the relevant action.[20]
However, the prosecution will have to prove that they were reckless about
the fact the action would, is likely to, have a significant impact on
the environment. The prescribed maximum penalty is imprisonment for 7
years or 420 penalty units, or both. Certain limited defences are provided
for.
Items 9 & 10 – Application of the EPBC Act Part
3 to actions in the Marine Park
Part 3 of the EBPC Act deals with ‘matters of
national environmental significance’ (NES)
As a logical consequence of amendments made under item
2 of schedule 4, actions in the Marine Park which are currently
capable of authorisation under the GBRMP Act are no longer exempt from
EPBC Act Part 9 approval requirements. Such actions in the Marine Park,
having a significant impact on a matter protected by Part 3 of the EPBC
Act would need to be assessed and approved in accordance with Parts 7,
8 and 9 of the EPBC Act (as appropriate).
The exception to this are activities permitted in the
Marine Park ‘as of right’ (i.e. without permission) under a GBRMP zoning
plan.
Item 11 – Bilateral Agreements relating to the Marine
Park
Under the EPBC Act, a bilateral agreement is a
written agreement between the Commonwealth and a State or Territory which
relates to almost any matter connected with the environment.
A key function of bilateral agreements is to reduce
duplication of environmental assessment and regulation between the Commonwealth
and states/territories. Bilateral agreements allow the Commonwealth
to 'accredit' particular state/territory assessment processes and, in
some cases, state/territory approval decisions.
In effect, bilateral agreements allow the Commonwealth
to delegate to the states/territories the responsibility for conducting
environmental assessments under the EPBC Act and,
in certain circumstances, the responsibility for granting environmental
approvals under the EPBC Act.
To be accredited, a state/territory process will need
to meet 'best practice' criteria.
If a proposed action is covered by an assessment bilateral,
then that action is assessed under the accredited state/territory process.
After assessment, the proposed action still requires approval from the
Minister under the EPBC Act.
If a proposed action is covered by an approval bilateral,
then it will be assessed and approved by the state/territory in accordance
with an agreed management plan. No further approval is required from
the Minister under the EPBC Act. [21]
Part 5 of the EPBC Act deals with bilateral agreements.
Section 49 of the EPBC Act more specifically addresses the express
provision needed to affect Commonwealth areas or actions using bilateral
agreements.
Item 11 amends section 49 of the EPBC Act
with the effect that a bilateral agreement made under Part 5 of the EPBC
Act will not apply to actions in the Marine Park unless there is express
provision for it in the agreement, in which case there is then scope to
include both general and Great Barrier Reef-specific arrangements.
Item 18-24 – Provisions allowing for a single environmental
impact assessment process for EPBC Act and GBRMP Act purposes.
According to the Explanatory Memorandum, these items
provide for amendments that ‘establish for actions in the Marine Park,
a single integrated environmental impact assessment process under the
EPBC Act, used for the purposes of both the EPBC Act and the GBRMP Act’.[22] This is done by providing that ‘a referral
under the EPBC Act to take an action wholly or part in the Marine Park
is deemed also to be an application under the GBRMP Act for any permission
required under that Act’.[23]
Part 2 - Amendments to the GBRMP Act
Item 41 – Relationship between the GBRMP Act and the
EPBC Act
Proposed new Division 4 in Part V of the GBRMP
Act deals the relationship between the GBRMP Act and the EPBC Act, and
establishes and single integrated environmental impact assessment process
under the EPBC Act, to be used both for the EPBC Act and the GBRMP Act.
New section 37AB would provide that:
- if a proposal to take an action in the Marine Park is referred to
the Minister for assessment and approval, then that referral is taken
to also be an application made in accordance with the GBRMP Act regulations
for that permission.
- if the action in the Marin Park is a ‘controlled action’ (requiring
assessment and approval under the EPBC Act), then permission under the
GBRMP Act cannot be validly given under the regulations unless an EPBC
Act approval for the action is in place.
The amendments made under this schedule bring the GBRMP
Act into line with the provisions relating to investigation and enforcement
under the EPBC Act.
Part 1 - Amendments to the EPBC Act
Investigation provisions
At present the EPBC Act and the GBRMP Act operate under
two somewhat different regimes for the purposes of investigating compliance
with the two key laws that apply in the Marine Park. This can create uncertainty
and the potential for non-compliance with legislative requirements for
investigations.
Items 1-5 – Inspectors
The amendments proposed by these items are designed to
make the investigation–related provisions of the EPBC Act available for
the purposes of investigating compliance with the GBRMP Act. However,
it is only inspectors authorised under the GBRMP Act (as well as members
of the Australian Federal Police, who have ex officio powers under
both the GBRMP Act and EPBC Act) that may exercise EPBC Act investigation
powers for GBRMP Act. This arrangement avoids confusions by ensuring
that responsibility for investigations continues to rest with the Marine
Park Authority.
Items 6, 11-16 – Boarding vessels, aircraft, vehicles,
platforms
For the purposes of searching for ‘evidential materials’,[24] subsection 403(2) of
the EPBC Act gives authorised officers the power to board:
- any Australian vessel or Australian aircraft, whether or not it is
in the Australian jurisdiction; or
- any other vessel or aircraft, or any vehicle or platform, that is
in the Australian jurisdiction.
According to the Explanatory Memorandum, section 48
of the GBRMP Act has a roughly equivalent power which will be repealed.
A closer examination of the content of the relevant provisions in the
two Acts relating to investigation powers per se, and the boarding of
vessels etc and access to premises, reveals that the more robust provision
seems to be that provided by the EPBC Act.
The Explanatory Memorandum makes special mention of and
provides justification for the need for authorised officers to be able
to search a vessel etc without the need for a warrant.[25] Furthermore, where an inspector has boarded
a vehicle, vessel, aircraft or platform, they are able to exercise the
powers provided by section 406 of the EPBC Act relating to the
identification and collection of evidence. The inspector may also conduct
a ‘frisk search’ of a person without a warrant. The need to guard the
safety of the officers and the impracticality of obtaining a warrant under
in some circumstances (the Marine Park is a very large area and incidents
often occur in remote areas), justifies the grant of this power.
Items 7 & 8 – Bringing vessels and aircraft to
port/airport
Under the EPBC Act, an authorised officer has the power
to themselves bring, or to direct a person in charge of a vessel (subsection
403(3)) or an aircraft (paragraph 403(4)(a)) that the officer
suspects on reasonable grounds has been used for or involved in the commission
of an offence, to bring that vessel or aircraft to the nearest port or
airport respectively.
The GBRMP Act has a similar provision (section 47B) which
will be repealed.
This power is considered necessary because it is not
always practical to engage in a proper and safe search of a vessel or
aircraft at the point of interception.
Item 9 – Requiring information from persons in charge
of a vehicle, vessel, aircraft or platform
Subsection 403(5) of the EPBC Act provides that
an authorised officer may require the person in charge of a vehicle, vessel,
aircraft or platform to give information concerning the vehicle, vessel,
aircraft or platform and its crew and any other person on board the vehicle,
vessel, aircraft or platform. This power is made available for the purposes
of investigating compliance with the GBRMP Act.
Item 18 – Taking things into possession
The new section (406AA) proposed by item 18
allows an authorised officer who has found eligible seizable items in
their search of a vehicle, vessel, aircraft or platform, or a person,
to take that item into possession and keep it for as long as required
for the purposes of the EPBC Act and/or GBRMP Act.
Chapter 6, Part 17, Division 3 – Items 20 & 21
– Monitoring of Compliance
Section 409 of the EPBC Act deals with authorised
officers boarding/entering the premises, vehicles, vessels etc, with the
consent of the occupier/operator, for the purposes of monitoring compliance
of the Act and its regulations. The Explanatory Memorandum points out
that compliance is significantly about ensuring that the manner in which
activities are normally carried out are compliant with the object and
purpose of the GBRMP Act over time.[26]
Chapter 6, Part 17, Division 6 – Items 44 & 50
– Arrest and related matters
Section 430 of the EPBC Act provides an authorised
officer to arrest a person without a warrant if the officer ‘believes
on reasonable grounds that the person is committing or has committed an
offence against this Act or the regulations; and proceedings against the
person by summons would not be effective’. The equivalent power contained
in the GBRMP Act will be repealed. The contextual circumstances of the
investigation in terms of the location of the investigation and the possibility
that the offender is highly mobile are used to justify the existence of
this power, which is meant to be used only in exceptional circumstances.[27] And it is mandatory for the person arrested
without a warrant to be without unreasonable delay, brought before a Justice
of the Peace or other authority to be dealt with in accordance with the
law.
Other investigative powers under the EPBC Act
Items 51-74 provide amendments designed to make
the investigation–related provisions of the EPBC Act available for the
purposes of investigating offences under the GBRMP Act and its regulations
include:
- the power to ask for a person’s name and address
- the power to seize without a warrant any thing that an authorised
officer suspects on reasonable grounds is evidential material
- a direction to deliver a seizable item
- the establishment of an offence for a person who has a seized item
released to them subject to a condition and they breach that condition
- the power of a court, upon convicting a person of an offence, to
order forfeiture of any thing used or involved in the commission of
that offence
- the power of the Minister to issue “notices to produce” information
and “notices to attend” and answer questions relating to an investigation
or for the purposes of preventing an offence or contravention of a civil
penalty provision
Part 2 - Amendments to the GBRMP Act
Item 110 – Establishment of an ‘environmental duty’
Proposed section 37AA establishes an environmental
duty under which a person who enters the Marine Park must take all
reasonable steps to prevent or minimise harm to the environment in the
Marine Park that might or will be caused by the person’s use or entry.
The Explanatory Memorandum states that administrative
guidelines, codes of practice and other best practice standards will also
help to indicate what is required. While breach of this duty is not an
offence as such, it may still trigger administrative action, ‘through
which reasonable and practical steps towards achieving the outcome of
avoiding or minimising environmental harm would be collaboratively identified
by the Authority and the person/company in question’.[28]
The Explanatory Memorandum envisages that ‘this duty is a mechanism through
which best practice approaches to environmental protection can be flexibly
and collaboratively established … as appropriate’.[29] It is stated that analogous requirements exist under state environmental
protection legislation, but unhelpfully, no examples are provided.
Items 122 & 123 – Delegation of powers and functions
Proposed section 46 allows the Minister to delegate
to the Marine Park Authority any or all of the Minister’s powers or functions
under the GBRMP Act (except for powers relating to matters properly vested
with the Minister only such as the approval of a zoning plan).
Items 124 & 125 – Enforcement provisions
Vessel monitoring direction
Proposed section 61AAA
applies in relation to a vessel that is required under a Commonwealth,
State or Territory law to be equipped with a vessel monitoring system.[30] The Authority may, in writing, make a direction
requiring one of the persons responsible for a particular
vessel to provide the Authority, or cause the Authority to be
provided, with the information specified for the vessel in the direction
(which must be information of a kind provided by the vessel monitoring
system in relation to the operation of the vessel in the Marine Park).
The information obtained by the Authority may not be used or disclosed
except for the purposes of administering the GBRMP Act.
Enforceable undertakings
Proposed section 61ABA allows the Minister to
enter into a written undertaking with a person the Minister believes has
contravened a civil penalty provision of the GBRMPA Act or the ‘environmental
duty’. That undertaking may involve the person doing any or all of the
following:
- take specified actions to prevent, repair or mitigate harm of
a specified kind in the Great Barrier Reef Region;
- take specified actions to ensure that the person does not engage,
or is unlikely to engage, in conduct that contravenes the duty in
section 37AA or a civil penalty provision;
- pay a specified amount to the Commonwealth, to be used for the
purpose of taking actions referred to in paragraph (a) or (b).
- The undertaking must be expressed to be an undertaking under this
section.
- The person may withdraw or vary the undertaking at any time, but
only with the consent of the Minister.
- The Minister may, by notice in writing given to the person, cancel
the undertaking.
- The undertaking may be published on either or both of the following:
- the website of the Authority;
- the website of the Department.
The rationale underpinning the use of enforceable
undertakings
The Explanatory Memorandum explains that this is meant
to operate as an administrative mechanism for flexibly dealing with non-compliance
of the GBRMP Act, albeit legally enforceable. The use of such undertakings
will exist as a matter of discretion, as part of the panoply of options
available which include criminal prosecution, civil action or other administrative
enforcement. While flexibility and tailoring of penalties is a worthwhile
endeavour, it remains of somewhat problematic comfort for the potential
(accidental) offender that the Explanatory Memorandum states that:
the decision in any particular case as to what form
of enforcement action it taken will depend on circumstances and will
be made consistently with relevant Australian Government policies and
guidelines and agency enforcement policy.[31]
Emergency directions
Proposed section 61ACA provides that where the
Marine Park Authority is satisfied that circumstances exist amounting
to an emergency that poses a serious risk to the environment in the Marine
Park, the Authority may make an emergency direction requiring a particular
person or class or persons to take or not to take specified action for
the purposes of avoiding, mitigating or eliminating that risk. This measure
is designed to respond to incidents such as an oil spill or ship grounding.
Given the nature of the events that are being addressed, the emergency
direction is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003. Failure to comply with an emergency direction
would be an offence under proposed section 61ACB, attracting 500
penalty units.
Enforceable directions
Proposed section 61ADA provides that where the
Minister is satisfied that a person has, is, or is likely to engage in
conduct that does or would constitute an offence against or would contravene
a civil penalty provision against the GBRMP Act, and that it would be
in the public interest to make a direction to ensure the person’s future
compliance with the Act and, or to prevent, repair or mitigate harm to
the environment, then Minister may make a direction requiring a person
to take or not to take specified action.
Directions limiting access to the Marine Park
Proposed section 61AEA provides that where a person
has been convicted of an offence under the GBRMP Act or contravened a
civil penalty at least 3 times in the past 10 years, then the Minister
has the power to issue that person with a direction either prohibiting
their access to the Marine Park or placing restrictions on it.
Publicising offences and contraventions
Proposed 61AFA provides that the Minister or Authority
may publicise in any way that the Minister or Authority thinks appropriate
the fact that a person has been convicted of an offence or found to have
contravened a civil penalty provision and that a penalty was imposed on
that person. While this sanction is intended to enhance deterrence, it
seems potentially too excessive in terms of the breadth of its scope.
Specifically the phrasing “may publicise in any way”. Also and
rather problematically, the terms of that section do not prevent anyone
else from publicising an offence against or contravention of the Act.
Remediation orders
Proposed 61AHA provides that where a person is
engaging or has engaged in conduct that constitutes an offence against
the GBRMP Act, then on application by the Minister, the Federal Court
can make an order requiring that person to take action to prevent, repair
or mitigate harm to the environment in the Marine Park that has been,
might be or will be caused by the conduct. Sections 480A-480C in
the EPBC Act contain similar provisions.
Publicity Order
Proposed section 61AKA provides that where a court
convicts a person of an offence against the GBRMP Act or finds that they
have contravened a civil penalty provision, then they may make an order
that the person take action to publicise either the offence or contravention
and or any penalty imposed.
This provision is designed to enhance deterrence, particularly
in relation to commercial Marine Park users. It is similar to the kinds
of orders that can be made by the Australian Competition and Consumer
Commission in certain circumstances. However, in those cases, they applied
to commercial dealings. In light of the potentially significant penalties
that an individual may suffer under the GBRMP Act, it seems somewhat excessive
that this might also be applied to individuals. In view of the philosophical
rights-based writings on punishment, it is suggested that publicity orders
should be confined in their use to commercial entities.
Liability of executive officers of bodies corporate
Proposed section 61AOA establishes civil and criminal
liability of the executive officers of bodies corporate for offences and
contraventions of the GBRMP Act done by the body corporate for which they
are responsible. Sections 493-496 of the EPBC Act contain similar
provisions.
Schedule 6 proposes a variety of changes relating offences
and penalties. These include:
- updating of a range of definitions, and or also making certain definitions
consistent with other relevant legislation, or consistent as between
the GBRMP Act and the EPBC Act
- improving the drafting and structure of certain offences so as to
make clearer the matters that need to be established in order to prove
that offence.
- the establishment of equivalent civil penalties for most offences
- tailoring the penalties according to factors such as culpability and
the environmental damage that has been caused. Associated with this
are amendments to meaningfully vary the fault elements (e.g, negligence
and strict and absolute liability) accordingly rather than simply adopt
the defaults established by the Criminal Code 1995. It should
be pointed out however, that the Criminal Code establishes a preferred
model of offences and variation from that model requires strong justification
- an extension of the existing vicarious liability[32] and collective liability provisions to recognise,
in appropriate circumstances:
- the responsibility of a permission holder for another person’s
conduct, where the authority for the conduct was given by the permission
holder in accordance with the permission, but where that other person
breaches a condition of the permission.
- the responsibility of persons holding a licence to engage
in or be in charge of commercial fishing activities carried out
others pursuant to that licence.
- the establishment of new offences for
- - the operation of a fishing vessel which is prohibited
or done without permission in a zone (except for the purposes of
transiting, anchoring, or reasonably necessary to deal with in an
emergency, or is due to an unavoidable accident) (38BD)
- - a false, misleading or reckless representation in relation
to tourism services, concerning a person’s liability to pay a fee,
tax or other levy or charge imposed by the Commonwealth for the
purposes connected with the use or entry to the Marine Park.
Opposition concerns relating to Schedule 6
Senators Boswell, Fielding, Joyce, McDonald, Scullion
and Xenophon have raised strong concerns about the amendments relating
to the breadth and thus operation of offences proposed by Schedule
6. Basically, the concern is that the Bill has not struck a reasonable
balance between the need to effectively deal with offenders and protect
the Marine Park, while avoiding the potentially harsh and unfair practical
operation of the proposed provisions. In particular, there is a concern
about the operation of strict liability offences and a corresponding call
to ensure that the legislation is clearly written and information regarding
the rights and obligations of users is readily available and user-friendly.
These concerns resulted in the Bill’s referral to the Senate Standing
Committee on Environment, Communications and the Arts.
In its report,
the Senate committee responded to issues raised by opposition senators
and provided clarification via departmental submissions containing a relevant
information and evidence relating to the concerns raised by the senators.
An issue that was not the subject of the Bill - the idea of pardoning
of 116 persons who were convicted of recreational fishing offences between
1 July 2004 to December 2006 - remains an outstanding concern for a few
of the opposition senators.
Part 1 - Amendments
Item 9 – Definition of fishing
Item 9 does not propose a new definition of ‘fishing’.
Paragraphs (a) to (f) are identical to the definition found in current
subsection 38CA(2). ‘Fishing’ means any of the following:
- searching for, or taking, fish;
- attempting to search for, or take, fish;
- engaging in any other activities that can reasonably be expected to
result in the locating of, or taking of, fish;
- placing, searching for or recovering fish aggregating devices or associated
electronic equipment such as radio beacons;
- any operations at sea directly in support of, or in preparation for,
any activity described in this definition;
- aircraft use relating to any activity described in this definition
except flights in emergencies involving the health or safety of crew
members or the safety of a launch, vessel or floating craft of any description.
This definition, which has simply been moved to into
the interpretation section, has nonetheless been criticised by Senators
Boswell, Scullion and Joyce for being too broad in terms of its capture
and thus potentially draconian in its operation because of its insufficiently
considered practical consequences.[33]
The example provided by Senator Boswell is that of someone entering a
green zone with an echo sounder[34]
or fish finder turned on. There is concern that in such a case, given
that an echo finder also performs non-fishing functions, a person may
be found guilty of an offence.
The Senate Standing Committee responded to this concern
by clarifying that this is not the definition of fishing in the GBRMP
Act that actually generates the prosecution process.
To be charged for fishing in a prohibited area in
the Marine Park, a breach of the Great Barrier Reef Marine Park Zoning
Plan 2003 (Zoning Plan) must be established in the first instance.
The Zoning Plan defines ‘fishing and collecting’ as ‘taking a plant,
animal or marine product’. An offence will have been committed if:
- a person engages in conduct that is ‘fishing’ (within the meaning
of the Zoning Plan), in a zone where it is prohibited; or
- a person attempts (as provided for by Part 2.4 of the Criminal Code)
to engage in ‘fishing’ (within the meaning of the Zoning Plan) in
zones closed to fishing.[35]
The committee explained that the definition of ‘fishing’
stated in item 9 is what is applied in order to classify an offence
as ‘aggravated’ only once a breach of the Zoning Plan has already been
established. The definition of ‘fishing’ in the Act does not therefore
operate so as to modify or qualify the definition of “fishing” for the
purposes of determining whether a person has engaged in, or attempted
to engage in, conduct that is prohibited under the Zoning Plan. Only the
definition in the Zoning Plan and application of the Criminal Code
are relevant in this context.
If that is the case, then placement of this definition
in interpretation section without clarification seems to be less than
optimal drafting.
Item 24 – Offence and civil penalty provisions
This item repeals sections 38A to 39, which deal
with items such as conditions attached to permission requirements, permit
or authority; activities allowed/prohibited in zoned areas; the establishment
of offences relating to the aforementioned items, including offences relating
to the removal of property, discharge of waste and damage to the marine
park. Item 24 re-enacts all of these offences with some consolidation,
adjustments and additions. Significantly, civil penalty equivalents have
been created for many of the offences.
Strict liability – Deemed awareness of the Marine
Park, its zones and the restrictions on use
Strict liability is applied in the circumstance where
that conduct:
- was carried out in the Great Barrier Reef Region (38AA – Mining or
Drilling)
- was carried out in a zone (38BA(1)(b), 38BD(b))
- is not permitted in a zone under a zoning plan (38BA(1)(c), 38B(d))
- is not permitted under a zoning plan unless notice is first given
to a specified body (38BC)
- was carried out in an unzoned area of the Marine Park (38CA(2));
and
- occurred or was carried out in the Marine Park (38DA(1)(b); 38DD(1)(b).
According to the Explanatory Memorandum, the policy rationale
underlying these offence provisions is an explicit onus being placed on
the user to take steps to make themselves aware of:
- the Marine Park and its zones;
- their location in relation to those areas; and
- any restrictions on their activities and use of those areas that might
apply.[36]
Strict liability – conduct authorised by permission
The offences in proposed 38AA (Mining and Drilling
in the Great Barrier Reef Region: offence), proposed 38AB
(Mining and Drilling in the Great Barrier Reef Region: civil penalty),
proposed 38BD (Operation of fishing vessel in zone: offence)
and proposed 38DD (Discharging of waste: offence) apply strict
liability to the circumstance that the defendant was authorised to engage
in the conduct by virtue of a permission granted under the GBRMP Regulations.
According to the Explanatory Memorandum, the permission
system underpins the regulation of the Marine Park and the Great Barrier
Reef Region. Permission requirements exist where there is a potential
for activities to have implications for the environment. The permission
requirements attach certain conditions to the way in which activities
are performed and are designed to ensure that activities undertaken are
acceptable ones that are consistent with maintaining the integrity of
the environment.[37] It is therefore reasonable, logical and expected that the holder
of a permit will make themselves aware of their rights and duties pursuant
to that permission. Making this a strict liability element not only overcomes
the problem of disproving ignorance of the law by the prosecution, but
is consistent with the terms upon which the permission was given—that
the holder would adhere to the conditions, which means making themselves
aware of those conditions.
Part VAA – Offences and penalties in relation to Great
Barrier Reef Marine Park and Region
Division 1— Conduct in the Great Barrier Reef Region
Mining operations in the Great Barrier Reef Region
Proposed section 38AA increases the maximum penalty
for the offence of carrying out mining operations in the Great Barrier
Reef Region from 500 penalty units to 1,000 penalty units. A provision
for an aggravated offence has also been included and this carries a maximum
penalty of three years imprisonment, 2,000 penalty points or both.
The concept of aggravated offences is discussed later
in this Digest.
An equivalent civil penalty offence is established for
this provision and it carries a maximum penalty of 2,000 units for an
individual and 20,000 penalty units for a body corporate. An aggravated
contravention attracts a maximum civil penalty of 5000 penalty units,
or 50,000 units for a body corporate.
However, the offence and civil penalty provisions do
not apply if the defendant has authorisation to carry out the conduct
by permission under the regulations. The Marine Park Authority must not
grant a person permission to engage in such conduct unless the Authority
is satisfied that the conduct is for the purpose of research or investigations
relevant to the conservation of the Marine Park.
Division 2— Conduct in Marine Park Zones (38BA and
38BB)
The proposed amendments rationalise and consolidate various
the offences relating to provisions that prohibit conduct not allowed
under a zoning plan or is only allowed with a permission and no such permission
is held. The offence once again adopts strict liability elements, consistent
with the rationale underpinning their adoption elsewhere in the schedule.
The maximum base penalty for has been increased to 1,000
units. The maximum penalty for an ‘aggravated offence’ is three years
imprisonment, 2,000 units, or both. The civil penalty equivalent of the
offence carries a maximum penalty of 2,000 penalty units for an individual
and 20,000 penalty units for a body corporate. For an ‘aggravated contravention’,
the maximum penalty is 5,000 penalty units for an individual and 50,000
penalty units for a body corporate.
Division 3— Conduct in an unzoned area of the Marine
Park (38CA and 38CB)
This item increases the base penalty to 1,000 penalty
units. For an ‘aggravated offence’, the maximum penalty is 3 years imprisonment,
2,000 penalty units, or both. The civil penalty provision equivalent of
the offence provides for a "base" maximum penalty of 2,000 penalty
units for an individual and 20,000 penalty units for a body corporate.
For an ‘aggravated contravention’, the maximum penalty is 5,000 penalty
units for an individual and 50,000 penalty units for a body corporate.
Division 4—Conduct in the Marine Park generally
Vessels causing damage to the Marine Park (38DA and
38 DB)
This item basically re-enacts 38MC and also creates an
equivalent civil penalty provision.
It is proposed that the penalty for an aggravated offence
be increased to three years imprisonment, 2,000 penalty units or both
(for an individual). The new civil penalty provision carries a maximum
penalty of 2,000 penalty units for an individual and 5,000 penalty units
for a body corporate. In the case of an ‘aggravated contravention’, the
maximum penalty is 20,000 penalty units for an individual and 50,000 penalty
unit points for a body corporate.
Discharging waste in the Marine Park (38DD, 38DE)
This item basically re-enacts an existing section which
prohibits the same conduct of discharging waste in the Marine Park. However,
the amendment provides for an ‘aggravated offence’ attracting a maximum
penalty of three years imprisonment, 2,000 penalty units or both (for
an individual). The maximum base penalty for an individual is 1,000 penalty
units. These offences, as elsewhere, include strict liability elements
and also contain a number tempering of defences.
Division 5—Conduct contravening conditions
Contravention of a permission authority (38EA and
38 EB)
Coupled with some changes (including the establishment
of an equivalent civil penalty provision), this item re-enacts the offence
prohibiting conduct which contravenes conditions of the permission. The
defences associated with the current provision have also been re-enacted.
The maximum ‘base’ penalty has been increased to 500
penalty units (for an individual). For an ‘aggravated offence’, the maximum
penalty is 1,000 units (for an individual). The civil penalty provision
equivalent of the offence carries a ‘base’ maximum penalty of 1,000 penalty
units for an individual and 10,000 penalty units for a body corporate.
For an ‘aggravated contravention’, the maximum penalty is 2,000 penalty
units for an individual and 20,000 penalty units for a body corporate.
Division 6—Collective and vicarious liability
Liability for vessels, aircraft and platforms used
in committing offences (38FA)
This item re-enacts current sections 38K and 38L
of the Act, imposing vicarious liability on persons responsible for vessels
involved in an offence against specified provisions of the Act.
‘Responsible persons’ are identified as vessel masters,
vessel owners and persons responsible for vessel-based commercial fishing
activities, notably the fishing licence holder. Making these persons vicariously
liable recognises that they are in a prime position to be able to affect
and monitor compliance with any conditions which attach to their licences
and to activities in the Great Barrier Reef.
A check is placed on the culpability of vicarious liability
to prevent unjust consequences being visited on ‘responsible persons’.
This is done by excusing the responsible person from liability if they
took all reasonable steps and exercised due diligence in
ensuring that the vessel is no used in the commission of an offence.
Collective liability – ships and vessels causing damage
to the Marine Park (38FB)
This item imposes liability on the master and owner of
a vessel involved in the commission of an offence under Part VAA
of the Act. The maximum penalty is 500 penalty units. Collective liability
is not controversial or new, it is well established in maritime law, including
Commonwealth maritime pollution law.
Collective liability – ships and vessels causing damage
to the Marine Park (38FC)
This item in part re-enacts the current subsection
38MC(2) imposing liability on the master and owner of a vessel involved
in the commission of an offence under proposed subsection 38CA
(causing damage to the environment of the Marine Park). The maximum penalty
is 500 penalty units.
Vicarious liability – permission holders (38FD)
This item proposes to impose responsibility on the holder
of a permission for the activities of another person, where they grant
‘authority’ to that other person to undertake the activities authorised
by the permission. This has the effect of requiring the original permission
holder to take all reasonable steps and exercise due diligence in ensuring
that the permission conditions are met by the person to whom they have
issued authority.
Vicarious liability is not a new concept and is widely
used in analogous contexts based on the logic that there are a bundle
of obvious obligations and responsibilities associated with rights and
potential gains of holding such a permission, and the most fundamental
one is to take reasonable steps to appreciate, foresee and manage the
risks of non-compliance.
Division 7—Aggravated offences and contraventions
(38GA, 38 GB)
According to the Explanatory Memorandum, the categories
of ‘aggravated offences’ and ‘aggravated contraventions’ are established
by this item as a means of distinguishing between conduct constituting
an offence or contravention of a civil penalty provision on the basis
of the impact, seriousness, culpability, potential for pecuniary benefit
and similar such factors.[38]
Conduct which is specifically identified as an ‘aggravating
circumstance’ and therefore necessarily attracting a higher penalty in
order to have a deterrent effect is:
- fishing that involves a primary commercial fishing vessel or a dory;
or
- navigating a vessel that is a ship within the meaning of the zoning
plan for the zone in which the vessel was being navigated; or
- conduct resulting in the taking of or injury to an animal or plant
that is a member of a protected species; or
- conduct resulting in serious harm to the environment in the Marine
Park; or
- conduct which has the potential to result in serious harm to the environment
in the Marine Park ; or
- conduct done for a commercial purpose.
The prosecution bears the onus of proving the existence
of the ‘aggravating circumstance’. If they are unable to do so, then the
person may still be found guilty of an ‘ordinary’ offence against that
provision.
Division 8— Miscellaneous
Commencement of prosecution times – extension of time
limit (38HA)
Under section 15B of the Crimes Act 1914, prosecution
for an offence carrying a maximum penalty of six months imprisonment must
be commenced within 12 months of the commission of an offence. The Explanatory
Memorandum states that this is considered too short a period of time for
many offences under the GBRMP Act. This is because the Marine Park is
a large and in places rather remote area, with parts not always readily
accessible due to seasonal factors. Furthermore the complexity of an investigation
in terms of accessing the area and obtaining relevant evidence of the
offence, may not always be possible within the current 12 month period.
This amendment therefore proposes to extend the period in which prosecutions
may be commenced from 12 months to two years.
This proposal to double the length of time is arguably
too generous and may result in unjust consequences for the accused. The
statute of limitations on commencing prosecution exists because of the
understanding that with the passage of time, evidence can become stale,
lost, obscured or defective with possibly unfair consequences for the
accused. Should the proposed amendment be adopted, it will therefore be
important that prosecutions are still commenced as soon as possible, rather
than taking advantage of the extended time limit unless this is unavoidable
in the circumstances of the particular case.
Items 26-32– Civil penalty provision equivalents of
environmental management charge offences
Background: the EMC and its application
- The Environmental Management Charge or EMC is a charge payable by
most commercial operators granted permits by the Great Barrier Reef
Marine Park Authority (GBRMPA). This includes operators conducting tourist
programmes and non-tourist commercial charters plus those operating
facilities in the Great Barrier Reef Marine Park
- There is no Goods and Services Tax liability on the EMC
- Visitors to the reef participating in a tourist activity are currently
liable to pay the charge to the permit holder. The role of the operator
in relation to the charge is to collect and remit the charge to the
GBRMPA
- All funds received as EMC payments are applied directly to management
of the Great Barrier Reef Marine Park including education, research,
ranger patrols and policy development.
The EMC applies to
chargeable permissions. This includes a permission for any of the following
kinds of activities:
- Operation of tourist programme
- installation and operation of tourist facilities (for example pontoons,
marinas, floating hotels, underwater observatories)
- Resorts on Commonwealth islands for example Lady Elliot Island
- Non-tourist commercial operations (for example, vessels chartered
for research, filming or other non-tourist activities)
- Mariculture
- Land-based sewage outfalls into the Great Barrier Reef Marine Park
- Sale of goods or services from a vessel.[39]
Existing section 39FA of the GBRMP Act makes it
a requirement that a chargeable permission holder must collect the charge
payable by visitors. Existing section 39FB of the GBRMP Act makes
it a requirement that chargeable permission holders must remit (pay) collected
amounts to the Marine Park Authority on time. Each of the sections provide
that a failure to comply is an offence under the GBRMP Act.
Items 26-32 propose amendments that establish
civil penalty provisions for the existing offences under section 39FA
and section 39 FB. The proposed civil penalty for a failure to
collect under section 39FA is 100 penalty unit points for an individual
and 500 penalty unit points for a body corporate. The proposed civil penalty
for a failure to timely remit the collected EMC under section 39FB
is 20 penalty unit points for an individual and 100 penalty unit points
for a body corporate.
Item 33 – False, misleading or reckless misrepresentation
in relation to tourism services
Proposed subsection 39FF makes it a new offence
to make a false, misleading or reckless representation in relation
to tourism services, concerning a person’s liability to pay a tax, charge
or fee (however described) imposed by the Commonwealth for the purposes
connected with the use or entry to the Marine Park. It is not necessary
to prove that the representation expressly refers to the Marine Park or
to an imposition of a liability by the Commonwealth.
Item 34 – Penalty for late payment of Environmental
Management Charge (EMC)
At present, the late penalty for failing to provide EMC
to the Marine Park Authority is 20 per cent per annum of the outstanding
amount. However, the Explanatory Memorandum argues that where only a small
amount is owed this is not considered as providing a sufficient deterrent.[40] Hence the amendments proposed
item 41 imposes a new penalty of $250 or 20 per cent per annum
of the amount unpaid, whichever is the greater.
[1] The EPBC Act provides a
framework to help protect and promote recovery of the Australian environment,
including its biodiversity and its natural and culturally significant
places. It creates a range of processes designed to protect and promote
the recovery of threatened species and ecological communities, and preserve
significant places from decline. The Act makes use of Regulations, which
provide for the issuing of approvals and permits for a range of activities
on Commonwealth land and land affecting the Commonwealth. A key feature
of the Act is the environmental assessment and approval provisions which
are aimed at protecting matters of national environmental significance
and promoting the conservation of biodiversity.
[10] Mohr, R (2006) 'Guidelines
on the precautionary principle and development', Deacons Legal
Update, April 2006, pp. 2–3.
[35] Senate Standing Committee
on Environment, Communications and the Arts, Inquiry into the provisions
of the Great Barrier Reef Marine Park and Other Legislation Amendment
Bill 2008 – additional information. Submission by Department of Environment,
Water, Heritage and the Arts, p. 1.
Juli Tomaras
17 September 2008
Bills Digest Service
Parliamentary Library
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