Scrutiny of Great Barrier Reef Zoning Plans

In its scrutiny of legislative instruments to ensure that they comply with personal rights and parliamentary propriety the Standing Committee on Regulations and Ordinances looks carefully at any instruments which may not be legally valid. Every year the Committee finds instances of such instruments, including those which are void because they purport to subdelegate legislative power. Generally any such subdelegation must be expressly authorised by the enabling Act. Invalidity on this ground is now particularly important because of the provisions of the Legislative Instruments Bill 1996, which will subject a broader range of legislative instruments to the safeguards of parliamentary control. This statement will report to the Senate on its scrutiny of a group of legislative instruments which illustrate problems in these areas and which are of continuing concern.

The Great Barrier Reef Marine Park Authority made three Zoning Plan Amendments on 23 September 1996, each of which subdelegated back to itself the power to control entry into areas of the Park and activities conducted there. These powers were broad and if legislative in nature appeared to be void unless expressly authorised by the enabling Act. Also, they purported to deal with the conservation of the Great Barrier Reef, which the Committee regards as an important issue, by the use of instruments which will not even be tabled in Parliament, much less be subject to disallowance.

The Committee wrote to the Minister for advice about the validity of the Amendments and received an extremely brief reply which merely stated that the Attorney-General’s Department (AGD) had assured the Minister that the subdelegations were administrative in nature and not legislative. The Committee wrote back to the Minister asking for a copy of the opinion, which the Minister duly provided. The opinion, from the Office of Legislative Drafting (OLD) of the AGD, confirmed that if the powers were legislative then they "certainly" should be provided for in the Zoning Plans themselves and thus be subject to parliamentary scrutiny and possible disallowance. However, according to the OLD opinion, they were administrative, because on an analysis of the circumstances they only apply the law in particular cases.

The Committee was somewhat startled by this opinion, which on its analysis of the circumstances appeared to fly in the face of everything which the Committee understood about the difference between legislative and administrative powers. In any event, the Committee wrote back to the Minister advising that if the power was administrative then it should be subject to AAT review and asking for confirmation that this would be done and that the existence of AAT review would be fully publicised to all persons affected. The Committee also asked for advice on the number of times the powers had been exercised and of the nature of the exercise.

The Minister replied to the Committee’s letter to the effect that AAT review of these putative administrative decisions would not be provided, giving reasons for this which were, in the Committee’s view, inadequate. The Committee wrote back to the Minister, advising that the view of the Committee was that the powers were legislative or, if they were not, then they should be subject to AAT review as set out in the Guidelines of the Administrative Review Council (ARC). The Committee, after studying the actual powers exercised, which banned or permitted fishing in particular areas for up to five years, also asked the Minister for advice that the Office of General Counsel of the AGD supported the view of OLD that the powers were not legislative.

The Minister’s reply attached an opinion from the Office of General Counsel that, at least in terms of the ARC guidelines, the powers were "clearly" of a legislative nature, "obviously" not directed towards the circumstances of particular persons, but applying generally to the community. They were in "sharp contrast" to decisions which would normally be directional as administrative. This opinion did not refer to the earlier opinion from OLD.

The Committee wrote back to the Minister advising that it accepted this opinion from the Office of the General Counsel. The result of the opinion was that the subdelegations of power appear to be void, with the powers exercised under them void and all actions in reliance on the powers also void. The view of the Committee was therefore that the amendments of the Zoning Plans should be remade as soon as possible. This would not redress the invalidity of the past 14 months but would at last ensure that future management of the Great Barrier Reef is on a valid basis. The Committee concluded by advising the Minister that the present position is that his own legal advice was that the Amendments are void or, on the best possible interpretation of his view, in breach of ARC guidelines. The Committee emphasised that action should be taken as soon as possible to correct this unsatisfactory position.

The Minister replied with another opinion from the Office of General Counsel that the powers were legislative but would be likely to survive a court challenge to their validity on the ground of subdelegation. This opinion did not mention either the first opinion from OLD or the previous advice from the General Counsel.

The Committee wrote back to the Minister noting that his own unambiguous legal advice was that the subdelegations were legislative for the purposes of the ARC guidelines and that under the guidelines they should therefore be subject to disallowance by either House of the Parliament. The Committee asked the Minister if he would confirm that this was the case. The Committee also asked the Minister for advice that he was taking steps as a matter of priority to ensure that the powers are subject to parliamentary scrutiny, suggesting that the present position was unacceptable not only from the position of the ARC guidelines, but also from principles of sound public administration and parliamentary propriety.

The Minister’s reply was to the effect that the powers were of a legislative nature, but that he did not intend to make them subject to parliamentary scrutiny. The Minister suggested that we conclude our correspondence.

The Committee now reports to the Senate on what it regards as the present unsatisfactory position, in which legislative instruments affecting important areas of the Great Barrier Reef Marine Park for periods of up to five years are probably void and in any event are not subject to tabling or disallowance. The Committee was also disturbed by the various opinions from the AGD in its scrutiny of these instruments. In summary, one opinion from OLD advised that the powers should "certainly" be included in the disallowable Zoning Plans if they were legislative but in fact they were administrative. The next opinion, this time from the Office of General Counsel, advised that the powers were "clearly" legislative, at least for the purposes of the ARC guidelines. The third opinion, also from the Office of General Counsel, advised that the powers were legislative but valid.

The Committee notes that discussion of contemporary legal issues includes the concept of "jurisdiction shopping". It appears that within the AGD that jurisdiction shopping is a definite option.

There is another disturbing aspect of this matter. This is that the opinion from OLD advised that it was in accordance with advice being purposed in relation to the Legislative Instruments Bill 1996. Presumably this advice is that the powers are not legislative for the purposes of that Bill, which provides that the Attorney-General may issue conclusive certificates that an instrument is or is not legislative. These certificates may only be challenged on the grounds of procedural validity, not on their merits, and even that must be done by a Federal Court action which the Committee understands would cost a lot of money. If this is the case then that advice from OLD would have to be withdrawn in the light of the opinions from the Office of General Counsel that the powers in question are legislative and fresh advice given that the powers are legislative for the purposes of the Bill. The Committee will pursue this with the Attorney-General and if necessary report again to the Senate.

The Committee is grateful for the cooperation which it has received in it scrutiny of these instruments from the Minister for the Environment, Senator the Hon Robert Hill.