Bills Digest no. 33 2006–07
Environment and
Heritage Legislation Amendment (Antarctic Seals and Other Measures)
Bill 2006
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
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Environment and Heritage Legislation
Amendment (Antarctic Seals and Other Measures) Bill
2006
Date introduced: 9 August 2006
House: Senate
Portfolio: Environment and Heritage
Commencement: Sections 1 to 3 and schedule 2,
item 2 commence on Royal Assent; schedule 1 commences on a date
fixed by proclamation or the day after a six month period from
Royal Assent; schedule 2, item 1 commences from 18 March 2005.
The main purposes of the Bill are:
- To transfer provisions relating to the protection of Antarctic
seals from the current regulations (Antarctic Seals Conservation
Regulations 1986) to the body of the Antarctic Treaty
(Environment Protection) Act 1980.
- To substantially increase the offences in the Act for offences
that kill or injure Antarctic native seals, birds or plants or that
significantly harm the habitat of these animal populations.
- To increase offences substantially for mining activities by a
person in the Territory and in Antarctica by an Australian
national.
- To require persons to have a permit to gather or collect rocks
or meteorites for scientific research or educational purposes with
significant penalties for those without a permit.
- To make minor amendments to the Water Efficiency Labelling and
Standards Act 2005.
Currently the law relating to the protection of Antarctic seals
is contained in the Antarctic Seals Conservation Regulations 1986
(the regulations). The regulations implemented the
Convention for the Conservation of Antarctic Seals
1978. The regulations provide a framework of protection for
the seals by the granting or refusal of permits for certain
activities in the Antarctic which may result in the killing or
injuring of seals whilst the activities are taking place or the
killing of or taking of specimens for scientific research or public
education purposes.
The Bill proposes transferring provisions regarding the
protection of native seals, native birds, native invertebrates and
native plants from the regulations to the Antarctic Treaty
(Environment Protection) Act 1980. The definitions of
whale and native mammal are repealed as whales
and other cetaceans (which include dolphins and porpoises and the
like) are protected under the Environmental Protection and
Biodiversity Conservation Act 1999 (EPBCA). Having species
protected under an Act as opposed to regulations enables heavier
penalties to be imposed for offences.
Australia ratified the Convention on 1 July 1987. The Convention
was set up to protect all the species of Antarctic seals. The six
species are listed in the Convention (the text of which is found in
schedule 1 of the ATEPA) and are currently protected under the
regulations are:-
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Southern elephant seal
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Mirounga leonina
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Leopard seal
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Hydrurga leptonyx
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Weddell seal
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Leptonychotes weddelli
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Crabeater seal
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Lobodon carcinophagus
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Ross seal
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Ommatophoca rossi
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Southern fur seals
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Arctocephalus sp.
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The Convention came about because of concerns in the 1960s that
commercial sealing would be resumed but as yet this has not
happened.(1)
The Protocol entered into force for Australia and
internationally on 14 January 1998. Article 3 of the Protocol
states the environmental principles which it endeavours to
promote:-
The protection of the Antarctic environment and
dependant and associated ecosystems and the intrinsic value of
Antarctica, including its wilderness and aesthetic values and its
value as an area for the conduct of scientific research, in
particular research essential to understanding the global
environment, shall be fundamental considerations in the planning
and conduct of all activities in the Antarctic Treaty area.
Article 7 of the Protocol prohibits any activity connected with
mineral resources other than for scientific research. The text of
the Protocol can be found in schedule 2 of the Antarctic Treaty
(Environment Protection) Act 1980.
All parties to the Protocol have agreed that all activities in
Antarctica will be planned and conducted so as to:-
- Limit adverse impacts on the Antarctic environment; and
- Avoid
- Adverse effects on climate or weather patterns;
- Significant adverse effects on air or water quality;
- Significant changes in the atmospheric, terrestrial (including
aquatic), glacial or marine environments;
- Detrimental changes in the distribution, abundance or
productivity of species or populations of species of fauna and
flora;
- Further jeopardy to endangered or threatened species; or
degradation of, or substantial risk to, areas of biological,
scientific, historic, aesthetic or wilderness significance;
and
- Accord priority to preserving the value of Antarctica for
scientific research.(2)
The Bill also implements further provisions of the Protocol by
requiring that the only reason for collecting rocks or meteorites
is for scientific research or educational purposes or such
educational or cultural purposes as the Minister thinks
appropriate. The Minister grants a permit for this purpose and the
activities may only be carried on to the extent necessary to
collect specimens for the purpose stated in the permit.
The Environment and Biodiversity Conservation Act 1999
(EPBCA) protects whales and other cetaceans such as dolphins
and porpoises hence the deletion of the definitions of
whale and native mammal from the Antarctic
Treaty (Environment Protection) Act 1980. A whale sanctuary
has been created under the Act.(3) Whales, dolphins and
porpoises are protected in all Commonwealth waters from the three
nautical mile state waters limit to the boundary of the exclusive
economic zone, that is, out to the 200 nautical mile limit and
further in some places.(4) The penalties under the EPBCA
range up to two years imprisonment or a fine not exceeding 1000
penalty units, or both, for recklessly killing or injuring a
cetacean. Separate provisions under the EPBCA also protect certain
whales through their status as listed threatened species (Blue
whale, Humpback whale, Southern right whale, Fin whale and the Sei
whale(5)).
State and Territory governments are responsible for the
protection of whales in coastal waters, that is up to the three
nautical mile limit. Matters for which they have responsibility
include responding to stranded and entangled whales and managing
whale watching activities.
The Antarctic Treaty (Environment Protection) Act 1980
in subsection 4(1) is expressed to apply to any persons and
property, including foreign persons and property in the Territory
and applies to all Australian citizens outside Australia,
Australian expeditions and their members, Australian organizations,
members of crew of aircraft, vessels or vehicles that are
Australian property and Australian property.
The offences in the Antarctic Treaty (Environment
Protection) Act 1980 and the proposed offences in the Bill are
expressed in terms of penalty units. This accords with current
drafting practice as the explanatory memorandum points out. A
penalty unit is defined in the Crimes Act 1914 in section
4AA as $110. Therefore the penalty in section 19A of the current
Act is 1000 penalty units or $110,000 or imprisonment of 16 years
or both.
The offences with penalties that have been upgraded to
imprisonment for two years or 120 penalty units or both, for
example the penalty for subsection 19(1A) brings the offence in
this section and other similar sections in this Act into line with
similar offences in the EPBCA.
Strict liability applies to two new proposed sections in the
bill. They are 21AA - Giving information about an act done in
an emergency situation and 21AB - Giving further
information about an act done in an emergency situation.
Strict liability means that no fault element (such as intention or
recklessness) need be proved for an offence to occur.
There is an error in proposed
new section 21AB(1) where reference is made to an act
mentioned in subsection 21A(2). It should be new subsection
21AA(2), as mentioned in the explanatory memorandum. Subsection
21AA(2) refers to the acts done which must be notified if done in
an emergency situation.
The explanatory memorandum states that the bill has no financial
impact.
Schedule 1 Amendments
Part 1 Amendments
Antarctic Treaty (Environment Protection) Act 1980
Item 1, subsection 3(1) is amended by expanding
the definition of animal to include an egg, part of an
egg, an eggshell and a dead animal or part of a dead animal.
Items 2 and 3 insert definitions of
disturb and interfere. The definition of
native bird is also expanded to include an egg, part of an
egg or eggshell or a dead bird or part of a dead bird. The new
definitions of animal and native bird exclude
native mammal and reference to migratory species. Migratory species
are protected under the EPBCA as the Act is expressed to apply to
each external territory and the Australian Antarctic Territory is
an external territory of Australia.
Item 5 repeals the definition of native mammal.
Item 6 inserts a definition of native
seal. Item 10 repeals the definition of
whale.
Item 11, proposed new subsection
3(6) provides that expressions used in the Act and the
Seals Convention will have the same meaning as the Convention.
Grant and Renewal of
Permit
Item 13, subsection 9(1) is substituted to give
the Minister power to grant permits in writing to authorise a
person to carry on certain activities specified in proposed
new subsection 9(1AA). Proposed new subsection 9(1AB)
provides that subsection 9(1) is subject to section 9 and the
restrictions on permits set out in section 10. Proposed new
subsection 9(1AC) enables the Minister to grant a permit
subject to conditions that the Minister considers appropriate.
Subsection 9(2) is substituted to include reference to the Seals
Convention.
Item 15 inserts new section 9A -
Authorities under Permits. Proposed new
subsection 9A(1) provides that a person
to whom a permit is granted may authorise other persons to
accompany the persons named in the permit to carry out the
activities designated in the permit.
Proposed new subsection 9A(2) provides that a
person to whom the permit is granted must not authorise any other
person unless both the permit contains a condition allowing the
permit holders to do so and that the authorisation is given in
accordance with the requirements of that condition or any other
conditions in the permit. Proposed new subsection
9A(3) provides that a person authorised to accompany a
person to whom the permit is granted must also comply with the
conditions of the permit. Proposed new subsection
9A(4) provides that the permit authorises the activity
specified in the permit subject to the compliance of other persons
authorised by the person to whom the permit is granted.
Proposed new subsection 9A(5) provides that a
person to whom a permit is granted, despite authorising other
persons to carry on an activity is not prevented from carrying on
the activity specified in the permit.
Item 20 repeals subparagraphs 10(1)(b)(i) and
(ii) and substitutes them with new
subparagraphs (i) to (iv). Section 10 provides
that a permit should not authorise the killing or injuring of
native birds or native seals unless a permit as in subparagraphs
(i) and (iii) relates to the construction and operation of
scientific support facilities and monitoring or conserving the
environment, an historic site or monument or any unintended
consequences of scientific activities. Subparagraph (ii) relates to
native birds and seals in providing specimens for scientific
research or other educational or cultural purposes as decided by
the Minister.
Item 25 proposed new subsection
10(1C) provides that a permit to gather, collect or remove
a meteorite or a rock must state that the activities authorised
will only be carried on to the extent necessary to provide
specimens for scientific research, public education or other
educational or cultural purposes as the Minister thinks
appropriate. Item 66 proposed new section
19AA creates offences relating to the gathering or
collecting of rocks and meteorites without a permit.
Proposed new subsection 19AA(2) creates an offence
for a person who removes the rock or meteorite from the Antarctic
whether or not it was collected by that person in the first place.
The penalty for both these offences is imprisonment for two years
or 120 penalty units, or both. The wording of section 19AA(1)(c),
19AA(2)(c) and 19AB(c) the person does not gather or collect the
meteorite in accordance with a permit is somewhat clumsy when it is
intended to convey a person without a permit. Proposed
new subsection 10(1D) provides that a
permit should state that all reasonable precautions have been taken
to prevent the introduction of micro-organisms when a person
returns native seals, native birds or native plants to the
Antarctic. Item 66, proposed new section
19AB creates an offence for a person who returns
indigenous species to the Antarctic but fails to do so in
accordance with the permit. The penalty for this offence is the
same as for section 19AA.
Subsection 12(2) is amended by item 26 to
include the additional requirement of the Minister to take into
account the principles and purposes of the Seals Convention.
Item 27 amends subsections 12N(1), (2) and (3)
to change the reference from the regulations to section 12PA in
relation to notices of variation, suspension and revocation of
authorisation.
Prohibition against Mining in the Territory
Existing section 19A contains a prohibition against mining
(including exploration) in the Territory and its offshore
continental shelf. Item 68 repeals the existing
penalty of $100,000 and substitutes it with a significantly
upgraded maximum penalty of imprisonment for 16 years or 1000
penalty units ($110,000) or both. Item 69,
proposed subsection 19A(2)
provides that the gathering or collecting of a rock or meteorite or
its removal does not come within the prohibition if the activity is
done in accordance with a permit. The note relating to this
subsection relates to subsection 13.3(3) of the Criminal Code
1995 that a defendant bears the evidential burden in relation
to establishing that the activity of gathering or collecting a rock
or meteorite and its removal is done in accordance with a
permit.
Section 19B prohibits mining by an Australian national in the
Antarctic as a whole as opposed to just the Territory. Item
71 repeals the existing penalty of $100,000 and
substitutes a penalty of imprisonment for 16 years or 1000 penalty
units ($110,000) or both. Proposed subsection
19B(2) provides that the gathering or collecting
of a rock or meteorite or its removal from the Antarctic does not
come within the prohibition if the activity is done in accordance
with a permit. Item 78 repeals subsection 21(1)
and substitutes (1) which provides that a person with a permit who
does an act specified in proposed new
subsection 21(1AA) of causing death or injury to
or interferes with native seals, birds or plants, gathers or
collects native plants or enters or carries on an activity in an
Antarctic specially protected area, must notify the Minister as
soon as practicable after the events. The penalty for failing to do
so is 60 penalty units.
Item 80, proposed new section
21AA relates to providing information about an act done in
an emergency situation. Proposed new subsection
21AA(1) provides that a person while in an emergency
situation such as saving a person from death or injury, or securing
the safety of a ship, aircraft etc does an act that is set out in
proposed new subsection 21AA(2)
must notify the Minister or an authorised officer within 30 days
after the act occurred. Proposed new subsection
21AA(3) provides that subsection 21AA(1) does not apply if
it is not possible to inform the Minister within 30 days, however
the person notifies the Minister as soon as practicable after the
act was done. The onus is on the person to prove the circumstances
in relation to subsection 21AA(3). Strict liability applies to
subsection 21AA(1).
Proposed new section 21AB is similar to
proposed new section 21AA. The explanatory memorandum refers to
section 21AB and a person who does an act referred to in 21AA(2).
However, section 21AB refers to an act mentioned in 21A(2). This is
an error.
Proposed new section 21AB provides that a
person in an emergency situation and who does an act in subsection
21AA(2) must provide a written report to the Minister within 60
days after the act was done, describing the action and why it was
taken. Subsection 21AB(1) does not apply if it is not possible to
give the written report to the Minister within 60 days but the
person gives the written report as soon as practicable after that
day. The person bears an evidential burden in relation to
subsection 21AB(2). Strict liability applies to subsection
21AB(1).
Item 81, proposed new
subsection 21A(2) substitutes the existing
subsection and restructures the existing subsection. The monetary
penalty is decreased from $100,000 to 420 penalty units or $46,200.
However the penalty now includes imprisonment for 7 years or 420
penalty units or both.
Item 88 subsection 29(5) is repealed and
substituted. It now provides that the regulations may prescribe
penalties not exceeding 50 penalty units or $5500 for offences
against the regulations.
Concluding Comments
The bill reconciles the provisions of the Antarctic Treaty
(Environment Protection) Act 1980 with the Environment
Protection and Biodiversity Conservation Act 1999 and
brings into line the offences with the latter Act and the penalties
to make them uniform between the two acts. The references to whales
and native mammals are now removed from the Antarctic Treaty
(Environment Protection) Act 1980 because of the comprehensive
protection framework that now exists in the provisions of the
Environment Protection and Biodiversity Conservation
Act 1999.
- Internet Guide to International Fisheries Law www.oceanlaw.net/texts/summaries/seals.htm.
- Australian Government Antarctic Divisions, Introducing the
Madrid Protocol, http://www.aad.gov.au/default.asp?casid=825.
- See map of the Australian Whale Sanctuary, Department of
Environment and Heritage site, http://www.deh.gov.au/coasts/species/cetaceans/sanctuary.html.
- Department of Environment and Heritage, factsheet, Protecting
whales and dolphins, 27/2/06.
- ibid.
Moira Coombs
11 October 2006
Bills Digest Service
Parliamentary Library
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