BILLS DIGEST NO. 11, 2011–12, 7 July 2011

Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011

Bill McCormick, Science, Technology, Environment and Resources Section

Juli Tomaras, Law and Bills Digest Section

Date introduced:  3 March 2011

House:  Senate

Private Senator’s Bill: Senator Colbeck

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

The summary information presented below is in the form of a Bills note.

Purpose

This Bill seeks to amend the Environment Protection Biodiversity Conservation Act 1999 (EPBC Act) to require that declarations of new Bioregional Plans[1] and Commonwealth Reserves[2] be disallowable by either chamber of Parliament.

It would appear that the purpose of the proposed amendment is to address concerns about the process involved in declaring new Plans and Reserves, and the consequences of any decision to do so without proper consultation and scrutiny taking place.

Currently, Bioregional Plans are not legislative instruments and are not subject to parliamentary disallowance. The effect of this amendment would mean that they would continue not to be legislative instruments.  However, they would be disallowable under Part 5 of the Legislative Instruments Act 2003 as modified by section 46B of the Acts Interpretation Act 1901. Commonwealth Reserves are legislative instruments which are not currently disallowable.

The Significance of Commonwealth Reserves

The National Reserve System is Australia's network of protected areas, conserving examples of […] natural landscapes and native plants and animals for future generations. Based on a scientific framework, it is the nation's natural safety net against [...] environmental challenges.[3]

The general power to declare Commonwealth Reserves is found in section 344 of the EPBC Act, which provides:

The Governor-General may, by Proclamation, declare as a Commonwealth reserve: … an area of land or sea... in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve.

Section 344 provides for the declaration of Reserves that include both land and sea components in certain circumstances.  Thus, where a Commonwealth Reserve is proclaimed over an area of sea, it will include both the waters and seabed under the sea. This will therefore have implications for extractive industries operating in Commonwealth marine areas.

The significance of Marine Reserves

Bioregional Marine Reserves aim to improve ‘the way our oceans are managed and help them to remain healthy and productive’[4], thus supporting conservation and sustainable use of Australia’s oceans.  These are the mechanisms for the development of the National Representative System of Marine Protected Areas in Commonwealth waters (starting three nautical miles offshore).[5] The Regional Marine Planning Process[6] was brought under the EPBC Act in 2005 by means of bioregional plans. Under the EPBC Act bioregional plans may be prepared for a bioregion that is within a Commonwealth area.

The first Plan to be developed was the South-east Regional Marine Plan, released in March 2004. It proposed a system of marine protected areas, 13 of which were declared as part of the South-east Commonwealth Marine Reserve Network in 2007.[7] The rest of the Marine Bioregional Plans for Australia, the North-west, North, East and South-west Marine Regions, are still being developed.[8] A draft marine bioregional plan and a Commonwealth marine reserve network proposal for the South-west Marine Region were released on 5 May 2011 for public consultation by 8 August 2011.

As the Senate Committee noted:

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.[9]

Concerns raised

There have been concerns that the Regional Marine Planning process will result in the exclusion of commercial and recreational fishing in the new marine reserves. The National Seafood Alliance has called for the extension of the process until the end of 2014 with a six month consultation period on the draft plans.[10] The Coalition has been critical of the process and its 2010 election policy on marine protected areas said that the Marine Bioregional Planning process would be put on hold to allow for its restructure.[11]

Proposed response

Subsequently Senator Colbeck introduced a Private Member's Bill that would amend the EPBC Act to require that declarations of new Bioregional Plans and Commonwealth Reserves be disallowable by either chamber of Parliament.[12] The Senate Committee on Environment and Communications Inquiry report into this legislation recommended that the Senate not pass the Bill. The Senate debated the Bill on 23 June 2011 but no vote was taken.[13] Further information on the Committee inquiry and response is outlined below.

Committee response

The Senate Committee’s report into the provisions of the Bill noted that:

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 public comment.[14]

Similarly, as the Senate Committee noted in relation to Commonwealth Reserves:

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.[15]

The Senate Committee inquiry into this Bill was advised by the Department of Sustainability, Environment, Water, Population and Communities that public consultation is intended to create 'a shared understanding of the conservation objectives and priorities in a region' and promote decisions that are 'based on accurate information'.[16] However, some stakeholders felt that this process did not achieve this and that community views do not necessarily and appropriately inform Ministerial decisions.[17] Concerns were also raised about the efficacy of the consultation process in gathering relevant and accurate scientific data.  However, these views were not representative of all of the submissions.  Queries were raised as to how the parliamentary disallowance process would improve and broaden the quality of community consultation and participation.

The main concerns about the Bill were that the:

disallowance process may compromise Australia's compliance with its environmental management commitments, may have significant, adverse practical and financial implications, and create unnecessary uncertainty for affected businesses and communities.[18]

Contact: Bill McCormick and Juli Tomaras

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ISSN 1328-8091

[1].               A bioregional plan is a plan for a bioregion referred to in section 176 of the EPBC Act.

[2].               A Commonwealth reserve is a reserve declared under Division 4 of Part 15 of the EPBC Act.

[3].               Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), ‘The National Reserve System’, DSEWPC website, viewed 6 July 2011, http://www.environment.gov.au/parks/nrs/index.html

[4].               Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), ‘About marine bioregional planning’, DSEWPC website, viewed 5 July 2011, http://www.environment.gov.au/coasts/mbp/about/index.html

[5].               I Campbell (Minister for the Environment and Heritage), New focus for Australia's marine planning programme, media release, 13 October 2005, viewed 16 May 2011, http://parlinfo/parlInfo/download/media/pressrel/0AMH6/upload_binary/0amh62.pdf;fileType=application%2Fpdf

[6].               The Government has provided $9.7 million in 2011–12 to finalise the Regional Marine Planning process that started with the release of the Oceans Policy in December 1998. The core of the Oceans Policy was a commitment to ecosystem-based management of Australia's marine jurisdiction to be implemented through the development of a Regional Marine Planning process. A total of $50 million was initially allocated for its implementation.

[7].               M Turnbull (Minister for the Environment and Water Resources), World's first temperate network of marine reserves declared, media release, 5 July 2007, viewed 16 May 2011, http://parlinfo/parlInfo/download/media/pressrel/KTKN6/upload_binary/ktkn62.pdf;fileType=application%2Fpdf#

[8].               Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), Marine bioregional planning, DSEWPC website, viewed 16 May 2011, http://www.environment.gov.au/coasts/mbp/index.html

[9].               Senate Environment and Communications Legislation Committee, Report on the Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011, p. 6, viewed 5 July 2011, http://www.aph.gov.au/Senate/committee/ec_ctte/bioregional_plans/report/report.pdf

[10].               National Seafood Industry Alliance, 2010 Federal Election Policy Statement, Seafood Industry Victoria Inc website, viewed 16 May 2011, http://www.siv.com.au/files/100728_election_policy_statement_2.pdf

[11].               Liberal party of Australia and the Nationals, The Coalitions' policy on marine protected areas, Coalition policy document, Election 2010, viewed 16 May 2011, http://www.nationals.org.au/LinkClick.aspx?fileticket=mF8_aNbhFZU%3d&tabid=108

[12].               Environment Protection and Biodiversity Protection (Regional Plans) Bill 2011, Amendment proposed by Senator Colbeck, 21 April 2011, viewed 16 May 2011, http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s823_first/toc_pdf/1103720.pdf;fileType=application%2Fpdf

[13].               Environment Protection and Biodiversity Protection (Regional Plans) Bill 2011, Amendment proposed by Senator Colbeck, 21 April 2011, viewed 16 May 2011, http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/s823_first/toc_pdf/1103720.pdf;fileType=application%2Fpdf

[14].               Senate Environment and Communications Legislation Committee, Report on the Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011, p. 4, viewed 5 July 2011, http://www.aph.gov.au/Senate/committee/ec_ctte/bioregional_plans/report/report.pdf

[15].               ibid, p. 6.

[16].               ibid, p. 12.

[17].               See for example, the comments of Mrs Judy Lynne, Executive Officer, SunFish Queensland and Mr Conway, Recfish Australia, cited in the Senate Committee’s report, p. 12.

[18].               ibid, p. 15.