Bills Digest no. 72, 2017–18
PDF version [348KB]
Sophie Power
Science Technology Environment and Resources Section
6 February 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
Review of the governance of GBRMPA
Committee consideration
Senate Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Revised governance arrangements
Separation of Chair and CEO6
Establishment of a new statutory
position of Chief Executive Officer
Delegations
Board size
Skills and expertise of members
Retention of Indigenous, Reef tourism
and Queensland Government representatives
Term limits
Conflicts of interest
Termination
Other provisions
Powers of zoning plans and plans of
management
Concluding comments
Date introduced: 6
December 2017
House: Senate
Portfolio: Environment
and Energy
Commencement: Schedule 1 commences on the earlier of a single day
to be fixed by Proclamation, or 12 months after Royal Assent.
Schedule 2 commences the day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at February 2018.
Purpose of
the Bill
The main purpose of the Great Barrier Reef Marine Park
Amendment (Authority Governance and Other Matters) Bill 2017 (the Bill) is to
amend the Great
Barrier Reef Marine Park Act 1975 (the GBRMP Act) to amend the
governance arrangements for the Great Barrier Reef Marine Park Authority
(GBRMPA).
Structure
of the Bill
The Bill has two schedules:
- Schedule
1 amends the GBRMP Act to revise the governance arrangements for the
GBRMPA and also contains consequential amendments to the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) and
- Schedule
2 amends the GBRMP Act in relation to the relationship between zoning
plans, plans of management, regulations and other legislative instruments made
under the GBRMP Act.
Background
The Great Barrier Reef Marine Park Authority (GBRMPA) was
established by the GBRMP Act to manage the Great Barrier Reef Marine
Park, provide advice to the Minister, conduct research and provide educational,
advisory and information services.[1]
The Great Barrier Reef Marine Park was first established
in 1975 by the GBRMP Act to provide protection for the Great Barrier
Reef region, which includes the world’s largest coral reef ecosystem.[2]
The GBRMP Act also establishes the GBRMPA, a Commonwealth authority
responsible for the management of the Marine Park. It also provides a framework
for planning and management of the Marine Park, including through zoning plans,
plans of management and a system of permissions.[3]
GBRMPA is guided by a Board comprising a full-time
Chairperson and between two and four other part-time members appointed by the
Governor-General.[4]
Members are required to have ‘qualifications or extensive experience in a field
related to the functions of the Authority’.[5]
GBRMPA is a non-corporate Commonwealth entity (NCE)
for the purposes of the Public Governance,
Performance and Accountability Act 2013 (PGPA Act).[6]
In the Commonwealth public sector, responsibility for the management of each
Commonwealth entity is assigned under two regimes. First, legislation such as
the Public
Service Act 1999 (PS Act), or the specific legislation that
establishes a particular agency, assigns responsibility for management
functions (typically including staffing) to a CEO-type position. ‘Agency head’
is the term used in the PS Act to describe CEO-type positions such as a
departmental secretary.[7]
The GBRMP Act currently provides that the Chairperson is the Head of the
agency for the purposes of the PS Act.[8]
In addition, the PGPA Act uses the term
‘accountable authority’ to assign responsibility for reporting and
accountability for the use and management of public resources.[9]
The GBRMPA Chairperson is also currently the ‘accountable authority’ for the
purposes of the PGPA Act.[10]
However, note that for listed
entities, the roles of agency head and accountable authority need not be
performed by the same person.[11]
Review of
the governance of GBRMPA
On 7 March 2017, the Minister for the Environment and
Energy announced an independent review of governance of the GBRMPA (GBRMPA
governance review).[12]
The review, led by Dr Wendy Craik, focused on the role and composition of GBRMPA’s
Board in supporting the functions and powers of GBRMPA.[13]
The review’s objective was to ensure that GBRMPA’s governance arrangements
remain ‘fit for purpose and continue to support the health and resilience of
the Reef’.[14]
The review released a background paper for public
consultation on 27 March 2017.[15]
Submissions were received from 16 stakeholders, and the review also held a
number of meetings with stakeholders.[16]
The review’s report was released on 5 October 2017.[17]
The report noted that the Great Barrier Reef has seen ‘enormous change’ since
the last review of governance of GBRMPA in 2006.[18]
This change includes growing pressures on the Great Barrier Reef including ‘the
impacts of climate change, land based runoff impacting on water quality,
coastal development and illegal fishing’.[19]
In addition, the review report observed that ‘the scale and complexity of the
tasks undertaken by the Authority has increased significantly while overall
staffing levels have remained constant and in recent years the number and level
of officers in senior management support has diminished’.[20]
The review found that the current governance arrangements
for the Authority ‘do not allow for strategic leadership or management
commensurate with the requirements of the Authority’s functions and
responsibilities’.[21]
The report therefore made 24 recommendations designed to strengthen GBRMPA’s
governance arrangements, including:
- creating
a separate Chairperson and Chief Executive Officer (CEO) for the Authority[22]
- increasing
the size of the Board to seven members (from the current size of between three
and five members)[23]
- retaining
the current term limits for members of five years, but limiting reappointments
to a maximum of two terms[24]
- strengthening
the skills requirements for Board members, while maintaining existing
provisions for Board members requiring an Indigenous person with experience in indigenous
matters relating to the Marine Park, a member with tourism expertise and a
member nominated by the Queensland government[25]
- reducing
the potential for conflicts of interest among board members, including through
legislated provisions requiring appointees not be a member of the governing
body of a relevant interest group[26]
and
- providing
the Governor-General with the power to terminate members for consistent
underperformance.[27]
The Government accepted all the recommendations in its response
to the report, published in November 2017.[28]
This Bill implements those recommendations that require amendments to the GBRMP
Act, while other recommendations can be implemented through administrative
measures.
Committee
consideration
Senate
Selection of Bills Committee
The Senate Selection of Bills Committee recommended that
the Bill not be referred to any committee for inquiry and report.[29]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had not yet considered the Bill.
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independents do not appear to have commented on the Bill.
Position of
major interest groups
While key stakeholders have not specifically commented on
the Bill itself at the time of writing, some indicated their views in submissions
made to the GBRMPA governance review.[30]
In particular, most stakeholders expressed support for the
separation of the functions for the Chair and CEO role into two positions.[31]
For example, the Association of Marine Park Tourism Operators (AMPTO) indicated
that it has been lobbying for many years for the roles of CEO and Chair of
GBRMPA to be separated.[32]
Similarly, the Australian Marine Sciences Association suggested that, as the
demands on the Great Barrier Reef have increased, ‘the position of Chair/CEO
has become overstretched and is unable to perform both roles’.[33]
Similarly, many stakeholders also supported an increase in
the size of the board, and the retention of current requirements for board
members with backgrounds in marine park tourism, an Indigenous person and a
representative of the Queensland Government.[34]
Financial implications
According to the Explanatory
Memorandum, the Bill will have no financial impact.[35]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[36]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not yet considered the Bill.
Key issues
and provisions
Revised
governance arrangements
Schedule 1 of the Bill gives effect to the recommendations
of the GBRMPA Governance review by making various amendments to the governance
arrangements of GBRMPA.
Separation
of Chair and CEO
Currently, GBRMPA is guided by a Board comprising a
full-time Chairperson and between two and four other part-time members
appointed by the Governor-General.[37]
The Chairperson is currently the ‘agency head’ for the purposes of the PS
Act and the ‘accountable authority’ of GBRMPA for the purposes of the PGPA
Act.[38]
The PGPA Act sets out requirements for the
governance, reporting and accountability of Commonwealth entities and
Commonwealth companies, and for their use and management of public resources. An
‘accountable authority’ of a Commonwealth entity is generally the person (or
group of persons) responsible for, and with control over, the entity’s
operations.[39]
The PGPA Act vests various powers and responsibilities for the financial
management of a Commonwealth entity in the hands of the accountable authority,
and sets out a series of duties that the accountable authority must meet. These
duties include establishing and maintaining systems relating to risk and
control, encouraging cooperation with others and minimising administrative
requirements that are imposed on other parties, and keeping relevant ministers
informed.[40]
In short, this means the Chairperson is accountable for the
operations and performance of the staff of GBRMPA and, as the only full-time
Board member, is also effectively the CEO of GBRMPA, ‘although this position is
not specified in the Act’.[41]
As noted earlier in this Digest, the review found that
‘separating the roles of the Chairperson and CEO would serve to enhance public
confidence’ in GBRMPA ‘through the diversification of leadership’.[42]
In addition, most stakeholders support the separation of the Chairperson and
CEO roles. Recommendation 1 of the review therefore proposed that the position
of the Chairperson and CEO should be separated.
After considering various options for governance models for
public sector entities, the review further recommended that the newly-established
CEO of GBRMPA should be the ‘accountable authority’ for the purposes of the PGPA
Act and the ‘agency head’ under the Public Service Act
(recommendations 3 and 4).[43]
Establishment
of a new statutory position of Chief Executive Officer
Item 25 implements this recommendation by establishing
a new statutory position of CEO of GBRMPA in proposed section 39ZJ. The
role of the CEO is set out in proposed section 39ZK, which provides that
the CEO is responsible for the day-to-day administration of GBRMPA.
Under proposed subsection 39ZK(4), the Authority
(in practice, the GBRMPA Board) may give written directions to the CEO about
the performance of CEO’s responsibilities, but not in relation to the CEO’s
functions or powers under the PGPA Act or PS Act.[44]
The CEO must comply with such written directions, but that direction is not
legislative instrument.[45]
Proposed section 39ZL provides that the CEO will be
appointed by the Governor-General on a full-time basis for a period of up to
five years. Under proposed subsection 39ZL(4), an individual must not
hold office as the CEO for a continuous period over ten years.[46]
The CEO’s remuneration will be determined by the Remuneration Tribunal, or if
there is no Tribunal determination in place, the remuneration will be as
prescribed by the Minister by legislative instrument.[47]
The CEO’s allowances will be prescribed by the Minister by legislative
instrument.[48]
Proposed section 39ZS provides that the CEO may
resign by giving the Governor-General a written resignation.
Under proposed section 39ZT, the Governor-General
may terminate the CEO’s appointment on certain grounds. This includes for ‘misbehaviour’;
if the CEO is unable to perform the duties of office because of physical or
mental incapacity; bankruptcy; or if the Minister is satisfied that the CEO’s
performance has been unsatisfactory for a significant period. The Explanatory
Memorandum states that these grounds are ‘consistent with similar statutory
appointments’.[49]
The Bill inserts a similar provision for termination of members of the GBRMPA
Board for unsatisfactory performance, and these provisions are discussed
further below (under the heading ‘termination’).
Proposed section 39ZU provides that the Minister may
determine any other additional terms and conditions under which the CEO holds
office. The Explanatory
Memorandum states that this is ‘to provide for streamlined administration
of the appointment, which is made by the Governor-General’, but ‘does not
provide the Minister the power to direct the CEO in the exercise of his or her
powers, or performance of his or her functions or duties’.[50]
A range of other amendments in Schedule 1 are consequential upon
the establishment of the CEO and reflect the transfer of responsibilities from
the Chairperson to the CEO.[51]
For example, item 4 inserts proposed subparagraph 6(2)(c)(ia) to
provide that the CEO is an official of the Authority.
One of the more substantive consequential amendments, item
3, amends paragraph 6(2)(b) to appoint the CEO as the ‘accountable
authority’ of GBRMPA for the purposes of the PGPA Act.
Paragraph 6(2)(b) of the GBRMP Act currently provides
that the Chairperson is the ‘accountable authority’ of GBRMPA for the purposes
of the PGPA Act.
Item 3 implements recommendation 3 of the GBRMPA
Governance review by amending paragraph 6(2)(b) to specify that the
newly-established CEO of GBRMPA will be the accountable authority for the
purposes of the PGPA Act. The Explanatory
Memorandum states:
This aligns with the CEO’s responsibility for leading and
managing the agency, including its human and financial resources, and for
implementing the Authority’s strategy and directions, as recommended by the
Review.[52]
Similarly, item 26 amends section 40 of the GBRMP
Act to specify that the newly-established CEO of GBRMPA will be the ‘agency
head’ for the purposes of the PS Act (rather than the Chairperson).
Delegations
In addition, items 31 and 33 amend existing
provisions in section 48 of the GBRMP Act allowing the Chairperson to
sub‑delegate certain powers or functions to Authority staff. The amended
provisions instead allow the CEO to sub‑delegate those powers or
functions. Item 30 also inserts proposed subsection 48(1AA) to
enable the CEO to delegate a power or function to a member of the staff of the
Authority working as SES or Executive Level 2 employee. Item 32 inserts proposed
subsection 48(3A) to require the delegate to comply with any directions of
the CEO in exercising those powers and functions.
This appears to be broadly consistent with the GBRMPA
Governance review, which expressed concern that although GBRMPA has extensive
delegations in place, there was ‘no guidance to support staff in the exercise
of those delegations’. The review noted the importance of the Board having
‘strong oversight of decisions and the decision making framework’. In
particular, recommendation 21 proposed that ‘delegation instruments should be
supported by guidance on how and when delegations should be exercised’.[53]
Board size
The Bill also contains amendments to increase the size of
the GBRMPA Board to seven members, as recommended by the GBRMPA Governance
review.
Subsection 10(1) of the GBRMP Act currently provides
that the Authority consists of a Chairperson and at least two, but no more than
four, other members. Item 10 of Schedule amends this subsection to
provide that the Authority will consist of a Chairperson, the CEO and five
other members. The total number of members of the Authority will be seven.
Under subsection 10(2), members are currently appointed by
the Governor-General, with the Chairperson being appointed as a full-time member and the other members being
appointed as part-time members. Item 11 proposes to repeal and replace subsection
10(2) to provide that members will continue to be appointed by the
Governor-General, and that all members other than the CEO, will be appointed on
a part-time basis. This is consistent with recommendation 10 of the GBRMPA
Governance review.[54]
Currently, under subsection 17(3) of the GBRMP Act,
two members constitute a quorum at a meeting of the Authority. To reflect the
increased Board size, item 22 amends this subsection to increase the
quorum requirements, providing that four members constitute a quorum.
Skills and
expertise of members
The GBRMPA Governance review also recommended strengthening
the skills requirements for Board members, while maintaining existing
provisions for Board members requiring an Indigenous person with experience in indigenous
matters relating to the Marine Park, a member with tourism expertise and a
member nominated by the Queensland government.[55]
Section 10 of the GBRMPA Act currently provides for
the membership of the Authority. In particular, subsection 10(6) broadly states
that ‘a member shall be a person with qualifications or extensive experience in
a field related to the functions of the Authority’. In addition, under subsection
10(6A) of the GBRMPA, at least one member must be an Indigenous person
with knowledge of, or experience concerning, indigenous issues relating to the
Marine Park. Similarly, under subsection 10(6B), at least one member must have
knowledge of, or experience, in the tourism industry associated with the Marine
Park.
Item 13 of Schedule 1 proposes to repeal these subsections
and replace them with new provisions specifying the skills requirements of
members of the Authority. Proposed subsection 10(6) provides that, to be
eligible for appointment as a part-time member of the Authority, the
Governor-General must be satisfied that the person is suitably qualified for
appointment because of significant knowledge of, or significant experience
concerning, one or more of the following fields:
(a) science
(including one or more fields related to climate change, marine science,
coastal ecology, fisheries, social sciences or engineering)
(b) natural resource management
(c) Indigenous matters relating to the Marine Park
(d) the tourism industry associated with the Marine Park
(e) business or industry
(f) resource economics
(g) public sector governance
(h) regulation
(i) education or communications or
(j) strategic management.
The same eligibility requirements will apply to members
appointed as acting members under subsection 15(3) of the GBRMP Act.[56]
Retention
of Indigenous, Reef tourism and Queensland Government representatives
Proposed subsection 10(7) retains the requirement for
at least one member to be an Indigenous person with knowledge or experience in
Indigenous matters relating to the Marine Park, while proposed subsection 10(8)
retains the requirement for at least one member to have expertise in the tourism
industry associated with the Marine Park. The existing requirement under
subsection 10(3) for at least one part-time member to be a person appointed on
the nomination of the Queensland Government is retained. These provisions
reflect recommendation 7 of the GBRMPA Governance review, which suggested that
the Board should continue to reflect Indigenous, Reef tourism and Queensland
Government expertise.
Term limits
Under section 11 of the GBRMP Act, members are
appointed for up to five years, with no limit on reappointments. The GBRMPA
Governance review found that this five year appointment term was appropriate
and should be retained. However, the review observed that ‘a limit on
reappointments would allow the board to get greater benefit from a range of
perspectives, while maintaining broad stability’.[57]
The review therefore recommended that reappointments be limited to a maximum of
two terms (recommendation 11).[58]
Item 14 of Schedule 1 gives effect to this
recommendation by repealing and replacing section 11 to provide that the
maximum period of appointment for a member must not exceed five years. Proposed
subsection 11(2) then provides that a person must not hold office as a
part-time member for a continuous period exceeding ten years.[59]
Conflicts
of interest
The GBRMPA Governance review found that there is ‘some
scepticism amongst stakeholders regarding the strength of the Authority’s
existing conflict of interest management provisions’.[60]
This scepticism may have stemmed from concerns raised in 2013 about alleged conflicts
of interest of two GBRMPA Board members (at the time) who had links to mining
and resource companies. The concerns led then Minister for the Environment,
Greg Hunt, to order an inquiry into those allegations.[61]
The inquiry subsequently found that the allegations of conflict of interest were
'unfounded' and that the members had appropriately disclosed their financial
and personal interests and at ‘no time breached their public duty in regard to
their position’.[62]
While the GBRMPA Governance review found ‘no evidence’ to
support stakeholder scepticism, it did suggest ‘there is scope to further
manage conflicts’.[63]
Recommendation 13 of the GBRMPA Governance review proposed that ‘the potential
for conflict of interest amongst board members should be reduced by legislated
provisions requiring appointees not be a member of the governing body of a
relevant interest group’.[64]
The review noted, for example, that ‘[t]his approach is already adopted by the
Australian Fisheries Management Authority and the Murray-Darling Basin
Authority’.[65]
Item 13 of Schedule 1 implements recommendation 13.
Proposed subsection 10(9) provides that a person is not eligible for
appointment as a member of the Authority if they are a member of the governing
body of a relevant interest group. Similarly, item 18 inserts a proposed
section 15B which provides that a part-time member must not be a member of
the governing body of a relevant interest group. The Explanatory Memorandum
states that this ‘will reduce the potential for conflicts of interest in the
conduct of the Authority’s functions and promote public confidence in the
Authority’s independence’.[66]
Under proposed paragraph 10(10)(b), a relevant
interest group is one that is directly involved in advocating about the
management of the Marine Park, or a group that represents people who use the
Marine Park for commercial purposes. As the Explanatory Memorandum states:
The Authority manages the Marine Park, including through
issuing permits and developing zoning plans and plans of management which
affect what particular individuals or organisations are permitted to do within
the Marine Park. It would be inappropriate for a person to be a member of the
Authority if that person’s work or public occupation involves lobbying or
advocating policy or actions to governments that are clearly intended for
specific benefits for themselves, or their organisation.[67]
However, note that under proposed paragraph 10(10)(a),
the person must be involved in the management of the entity. In other
words, an individual will still be eligible for appointment ‘if they are merely
a member of a relevant interest group’.[68]
Item 18 of Schedule 1 also addresses the
issue of potential conflicts of interest. It does this by inserting proposed
section 15A which provides that a part-time member must not engage in any
paid work that, in the Minister’s opinion, conflicts or could conflict with the
proper performance of his or her duties.
The Bill also contains provisions to deal with potential
conflicts of interest in relation to the proposed new CEO. In particular, proposed
section 39ZL(6), inserted by item 25, similarly provides that a
person is not eligible for appointment as the CEO of GBRMPA if, at the time of
the appointment, the person is a member of the governing body of a relevant
interest group (as outlined in proposed subsection 10(10))[69].
Under proposed section 39ZR, once appointed, the CEO must not be a
member of the governing body of a relevant interest group during their tenure
as CEO. Proposed section 39ZQ also provides that the CEO must also not
engage in any other paid work without the Minister’s approval. As the
Explanatory Memorandum states, these provisions are designed to ‘reduce the
potential for conflicts of interest and promote public confidence in the
independence of the Authority’.[70]
These provisions will be in addition to existing
provisions in the GBRMPA Act and the PGPA Act dealing with
conflicts of interest. This includes, for example, section 16A of the GBRMP
Act and section 29 of the PGPA Act which oblige members to disclose
relevant material personal interests in relation to the affairs of GBRMPA.
The GBRMPA Governance Review also noted that Food
Standards Australia New Zealand, for example, ‘requires members excuse
themselves from voting on any matter for which they are conflicted but allows
them to contribute their expertise to relevant deliberations’.[71]
Recommendation 20 of the review suggested that the GBRMPA board consider
similar processes for members in relation to the management of conflicts of
interests.[72]
Termination
Section 16 of the GBRMP Act currently provides for
the circumstances under which the Governor-General may terminate the
appointment of members of the Authority. The GBRMPA Governance review observed
that the Minister is unable to manage significant failures of performance, as
section 16 currently provides that members can only be terminated for
‘misbehaviour or physical or mental incapacity’, the Chairperson engaging in
unapproved paid employment, unapproved absences, bankruptcy, and failure to
declare conflicts.[73]
Recommendation 17 of the review therefore recommended that the Governor-General
should have the power to terminate members, on the recommendation of the Minister,
if they are consistently underperforming.
Item 19 implements this recommendation by repealing
and replacing section 16. Proposed section 16 retains the current
grounds for termination of members of the Authority, and adds conflicts of
interest and consistent underperformance as grounds for termination (see proposed
paragraphs 16(2)(c), (d) and (e)). This is similar to the new
provision providing the grounds for termination of the new CEO as outlined
above.
The GBRMPA Governance review suggested that ‘many Acts’
(such as the Water Act 2007 (Cth)) provide for members to be terminated
if they are not performing their role satisfactorily’.[74]
However, provisions allowing underperformance as grounds for removal of Board
members do not appear to be prevalent in other relevant Commonwealth
legislation. It also appears to be a fairly broad discretion open to subjective
interpretation, and Parliament may therefore wish to consider whether this provision
is appropriate in the case of GBRMPA Board members.
Other provisions
Powers of zoning plans and plans of management
Schedule 2 of the Bill makes technical amendments to the GBRMP
Act with the aim of ‘clarifying the relationship between zoning plans,
plans of management and regulations made under the GBRMP Act; or other
legislative instruments’.[75]
As noted earlier in this Digest, the GBRMP Act
provides a framework for planning and management of the Marine Park, including
through zoning plans, plans of management and a system of permissions.
The whole Marine Park is covered by the Great
Barrier Reef Marine Park Zoning Plan 2003, which provides for a range
of ecologically sustainable recreational, commercial and research opportunities
and for the continuation of traditional activities:
Zoning helps to manage and protect the values of the Marine
Park that people enjoy. Each zone has different rules for the activities that
are allowed, the activities that are prohibited, and the activities that
require a permit. Zones may also place restrictions on how some activities are
conducted.[76]
In addition, certain areas of the Marine Park also have
specific management plans in place:
Plans of management are generally prepared for intensively
used, or particularly vulnerable groups of islands and reefs, and for the
protection of vulnerable species or ecological communities. Plans of management
complement Marine Park zoning by addressing issues specific to an area, species
or community in greater detail than can be accomplished by the broader
reef-wide zoning plans.[77]
Zoning plans are made under Division 2 of Part V of the GBRMP
Act, while plans of management are made under Part VB. In addition, section
66 of the GBRMP Act enables the Governor-General to make regulations,
not inconsistent with the Act or with a zoning plan, prescribing all matters
required or permitted by the Act (or necessary or convenient to be prescribed
for carrying out or giving effect to the Act).
Schedule 2 of the Bill amends the GBRMP Act with
the aim of ‘clarifying the relationship between zoning plans, plans of
management and regulations made under the GBRMP Act; or other
legislative instruments’.[78]
It does this, first, through item 1 which inserts proposed
subsection 35DA(1) which provides that a zoning plan may provide in
relation to a matter by providing that the regulations, or any other
legislative instrument, provide in relation to that matter. Proposed
subsection 35DA(2) then provides that, to avoid doubt, a reference to a
zoning plan in Part V of the GBRMPA Act does not include a reference to
regulations, or another legislative instrument, covered by new subsection 35DA(1).
The Explanatory
Memorandum states that the purpose of this section is to ensure that the
procedural requirements in Part V for zoning plans are not interpreted as
applying to regulations made under the GBRMPA Act.[79]
Item 2 inserts proposed section 39ZFA which
makes similar provision in relation to management plans and the regulations or
other legislative instruments.
Concluding
comments
The Bill primarily makes largely uncontroversial
amendments to the governance arrangements of GBRMPA which were broadly
supported by stakeholders during the GBRMPA Governance review.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Section
7 of the GBRMP Act.
[2]. Great
Barrier Reef Marine Park Authority (GBRMPA), ‘Facts
about the Great Barrier Reef’, GBRMPA website. See also: GBRMP Act,
Part V, especially section 30 (establishment of the Great Barrier Reef Marine
Park).
[3]. GBRMPA,
‘How
the Reef is managed’, GBRMPA website; see also GBRMP Act, Part II
(establishment, functions and powers of the GBRMPA) and Parts V–VB (core
provisions establishing the planning and management framework).
[4]. GBRMP
Act, subsections 10(1)–(2).
[5]. GBRMP
Act, subsection 10(6).
[6]. See
Department of Finance, ‘Resource
Management glossary - non-corporate Commonwealth entity (NCE)’, Department
of Finance website, last updated 10 November 2017. Note that other non-corporate
Commonwealth entities (NCEs) with recent or proposed changes to governance
arrangements are the Organ Transplant Authority (in 2016: see P Hamilton, ‘Australian
Organ and Tissue Donation and Transplantation Authority Amendment (New
Governance Arrangements) Bill 2016’, FlagPost, Parliamentary Library blog,
23 November 2016) and the National Capital Authority under the Australian
Capital Territory (Planning and Land Management) Amendment Bill 2017.
[7]. PS
Act, section 7.
[8]. GBRMP
Act, paragraph 40(2)(b).
[9]. PGPA
Act, section 12.
[10]. GBRMPA
Act, paragraph 6(2)(b).
[11]. PGPA
Act, section 12.
[12]. J
Frydenberg (Minister for the Environment and Energy), GBRMPA
governance review, media release, 7 March 2017.
[13]. Department
of the Environment and Energy (DEE), ‘Independent
review of governance of the Great Barrier Reef Marine Park Authority’, DEE
website.
[14]. W
Craik, Review
of governance of the Great Barrier Reef Marine Park Authority, report, DEE,
Canberra, July 2017, p. 18.
[15]. DEE,
‘Consultation:
independent review of governance of the Great Barrier Reef Marine Park
Authority’, DEE website.
[16]. Ibid;
Craik, Review
of governance of the Great Barrier Reef Marine Park Authority, op. cit.,
p. 18.
[17]. J
Frydenberg (Minister for the Environment and Energy), Release
of Great Barrier Reef Marine Park Authority governance review, media
release, 5 October 2017.
[18]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 9. The last review was chaired by then Secretary of the Department of
the Environment and Heritage, Mr David Borthwick. See D Borthwick, Review
of the Great Barrier Reef Marine Park Act 1975: review panel report,
Canberra, 2006.
[19]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op. cit.,
p. 18 and see further pp. 19–24, 33–4.
[20]. Ibid.,
pp. 24–5.
[21]. Ibid.,
p. 11.
[22]. Ibid.,
p. 49 (recommendation 1).
[23]. Ibid.,
pp. 53–4 (recommendation 10).
[24]. Ibid.,
p. 54 (recommendation 11).
[25]. Ibid.,
p. 53 (recommendations 7–9).
[26]. Ibid.,
p. 56 (recommendation 13) and see also pp. 58–9 (recommendation 20).
[27]. Ibid.,
p. 57 (recommendation 17).
[28]. J
Frydenberg (Minister for the Environment and Energy), New
arrangements for the Great Barrier Reef Marine Park Authority, media
release, 30 November 2017; see also DEE, Government
response to the review of the governance of the Great Barrier Reef Marine Park
Authority, November 2017.
[29]. Senate
Selection of Bills Committee, Report,
15, 2017, The Senate, Canberra, 7 December 2017.
[30]. Stakeholder
submissions are available at DEE, ‘Consultation:
independent review of governance of the Great Barrier Reef Marine Park
Authority’, DEE website.
[31]. See,
for example, Australian Marine Conservation Society (AMCS), Submission
to the Independent Review of Governance of the Great Barrier Reef Marine Park
Authority, n.d., p. 2.; Australian Marine Sciences Association, Submission
to the Independent Review of Governance of the Great Barrier Reef Marine Park
Authority, 7 April 2017, p. 1; Queensland Tourism Industry Council, Submission
to the Independent Review of Governance of the Great Barrier Reef Marine Park
Authority, 10 April 2017, p. 1; Queensland Resources Council, Submission
to the Independent Review of Governance of the Great Barrier Reef Marine Park
Authority, 2 May 2017, p. 2.
[32]. Association
of Marine Park Tourism Operators (AMPTO), Submission
to the Independent Review of Governance of the Great Barrier Reef Marine Park
Authority, 8 March 2017, p. 2.
[33]. Australian
Marine Sciences Association, Submission,
op. cit., p. 1.
[34]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 38.
[35]. Explanatory
Memorandum, Great Barrier Reef Marine Park Amendment (Authority Governance
and Other Matters) Bill 2017, p. 3.
[36]. The
Statement of Compatibility with Human Rights can be found at pages 4–6 of the Explanatory
Memorandum to the Bill.
[37]. GBRMP
Act, subsections 10(1)–(2).
[38]. GBRMPA
Act, paragraphs 6(2)(b) and 40(2)(b).
[39]. PGPA
Act, section 12.
[40]. PGPA
Act, sections 15–19.
[41]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 29.
[42]. Ibid.,
p. 47.
[43]. Ibid.,
pp. 42–9, 51.
[44]. See
GBRMPA Act, section 8B (as amended by items 7–9 of
Schedule 1 of the Bill) and Note to proposed subsection 39ZK(4).
[45]. Proposed
subsections 39ZK(5)–(6).
[46]. This
does not include any period when they were acting as the CEO, see proposed
subsection 39ZL(5). Acting CEO appointments are provided for in proposed
39ZM.
[47]. Proposed
subsections 39ZN(2) and (4). The Remuneration Tribunal will also
determine the CEO’s recreation leave entitlements, while the Minister may grant
other leave of absence for the CEO, see proposed section 39ZP.
[48]. Proposed
subsections 39ZN(2) and (4).
[49]. Explanatory
Memorandum, op. cit., p. 14. It is also broadly in line with the provisions
for termination of other members of the Authority, see GBRMP Act,
section 16, as amended by item 19 of Schedule 1 of the Bill.
[50]. Ibid.
[51]. See,
for example, items 4–9, 28 and 34–38 of Schedule 1. In
addition, the entirety of Part 2 of Schedule 1 makes consequential amendments
to the Environment
Protection and Biodiversity Conservation Act 1999 to change references
in that Act to the Chairperson of GBRMPA to the Chief Executive Officer of
GBRMPA.
[52]. Explanatory
Memorandum, op. cit., p. 9.
[53]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 59.
[54]. Ibid.,
pp. 53–4.
[55]. Ibid.,
pp. 51–3 (recommendations 7–10).
[56]. Item
16 of Schedule 1, which inserts proposed subsection 15(4).
[57]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 54.
[58]. Ibid.
[59]. Note
that under item 46 in Part 3 of Schedule 1, this 10 year limit will
apply to existing members of the Authority, even if they were appointed prior
to the commencement of these amendments.
[60]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 59.
[61]. See
further C Duffy, ‘Conflict
of interest threatens Great Barrier Reef’, ABC 7.30 report, 29
October 2013; G Hunt (Minister for the Environment), Doorstop
with Ken O’Dowd MP, Member for Flynn, Marine Service Wharf, Gladstone Marine :
visit to Gladstone; Arrow LNG Project; CCA draft report; GBRMPA Board; Abbot
Point, transcript, 30 October 2013, p. 3; see also, for example, J
Swan, ‘Hunt
orders inquiry over reef business links’, The Age, 31 October 2013,
p. 4.
[62]. G
Hunt (Minister for the Environment), Great
Barrier Reef Marine Park Authority conflict of interest inquiry, media
release, 24 February 2014; see also ‘Great
Barrier Reef Marine Park Authority’s Tony Mooney and Jon Grayson cleared of
conflict of interest’, ABC News online, 16 April 2014.
[63]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 59.
[64]. Ibid.,
pp. 55–6; see also pp. 58–9 and recommendation 20.
[65]. Ibid.,
p. 55; see also, for example, Water Act 2007,
paragraph 178(2)(b).
[66]. Explanatory
Memorandum, op. cit., p. 10.
[67]. Ibid.,
p. 11.
[68]. Ibid.
[69]. See
also item 1 of Schedule, which inserts a new definition of ‘member of
the governing body of a relevant interest group’ into subsection 3(1) of the GBRMPA
Act.
[70]. Explanatory
Memorandum, op. cit., p. 14.
[71]. Craik,
Review
of governance of the Great Barrier Reef Marine Park Authority, op.
cit., p. 59.
[72]. Ibid.
[73]. Ibid.,
p. 57.
[74]. Ibid.;
see also Water Act, paragraph 189(2)(b).
[75]. Explanatory
Memorandum, op. cit., p. 18.
[76]. GBRMPA,
‘Zoning’,
GBRMPA website.
[77]. GBRMPA,
‘Plans
of management’, GBRMPA website. The objects of plans of management are set
out in section 39Y of the GBRMP Act. Plans of management are legislative
instruments but are not subject to sunsetting, see GBRMP Act, section
39ZF; and Legislation
(Exemption and Other Matters) Regulation 2015, regulation 12, table item
32(c).
[78]. Explanatory
Memorandum, op. cit., p. 18.
[79]. Ibid.
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