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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