BILLS DIGEST NO. 43, 2012–13

16 November 2012

Malabar Headland Protection Bill 2012

Kirsty Magarey
Law and Bills Digest Section

Date introduced:  9 May 2012

House:  House of Representatives

Portfolio:  Special Minister of State

Commencement:  On 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 http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

To progress the transfer of land known as the Malabar Headland from Commonwealth ownership to ownership by the state of New South Wales (NSW), while nevertheless providing for its management under Commonwealth guidance and requiring it to be run as a National Park.

Background

The material accompanying this Bill – both the Explanatory Memorandum and the second reading speech, give a more detailed account of the Bill’s history.

The Explanatory Memorandum supplies a map of the relevant area between Maroubra Beach and Malabar. It describes the area as being located between Maroubra Bay and Long Bay, and possessing areas of historical and natural significance (the Eastern Suburbs Banksia Scrub – an endangered species – can be found there, and the site has a history as a ‘base and defensive position during World War II’). As Minister Garrett points out:

It is listed on the Commonwealth Heritage List and the New South Wales State Heritage Register.[1]

Interestingly the constitutional power relied on in the proposed Act includes the external affairs power (section 51 (xxix)) and the power with respect to Aboriginal people under section 51(xxvi). In particular the Explanatory Memorandum lists the obligations of the Commonwealth under the international Convention on Biological Diversity.[2]

The process of transferring the Malabar Headland from the Commonwealth to the NSW Government has already commenced, with the transfer of land known as the ‘western section’ in March of this year. The current Bill will ensure that New South Wales’ ownership of the property (or any other ownership) will be subject to Commonwealth regulation.

There would seem to be an inconsistency in the Explanatory Memorandum’s (EM) description of the property affected by the proposed legislation. The text of the EM comments that the land is identified in the aerial photograph at Attachment A as:

•       Lot 101, DP1162445 (known as the central section)

•       Lot 102, DP1162445 (known as the western section) and

•       Lot 2, DP1162445 (known as the eastern section).[3]

However, in the Aerial photograph the relevant areas are identified as:

•       Lot 101- DP1162245

•       Lot 102- DP1162245 and

•       Lot 2- DP809094.[4]

The numbering in the EM does not correspond with the relevant Aerial photograph, nor with the Bill’s description.[5] Identification of land may be arcane, however it may be necessary to adjust the legislation’s accompanying materials appropriately.

Basis of policy commitment

Minister Garrett’s electorate encompasses this area, and his speech documents the Labor Government’s policy commitment to transfer approximately 70 hectares of the site to NSW for use as a national park.[6] One parcel of land (Lot 102, DP 1162245) comprising 17.7 hectares, has already been transferred under a deed of transfer in March of this year (2012).

Position of major interest groups

The second reading speech documents the extensive involvement of the local community in efforts to protect Malabar Headland. In particular the ‘Friends of Malabar Headland’, a non-profit organisation, has worked to rehabilitate the bushland.[7] They will presumably fall within the Bill’s definition of ‘interested persons’ who are able to seek injunctions where there is inappropriate behaviour in the Headland’s precincts.

Financial implications

While the land which is the subject of the Bill is intended to be transferred to the NSW Government, there are nevertheless potential future costs to the Commonwealth. In particular the Financial Impact Statement mentions the ongoing possible future costs associated with: ‘the use, management or dispositions of the Site’. Such costs could arise in the event the land is to be sold or there is a need for action to be taken which requires a Commonwealth response, including the creation of relevant regulations.

Statement of Compatibility with Human Rights

The Statement of Compatibility says that the Bill is compatible with human rights as it does not engage any of the applicable rights or freedoms.

Key provisions

The central provisions of the Bill ensure that when land is transferred from the Commonwealth to the NSW Government (or further), the Commonwealth retains certain powers to regulate. NSW must use any transferred Malabar headland property as a national park under the NSW National Parks and Wildlife Act or for a purpose that is prescribed in the regulations (proposed section 8).

The Bill is divided into four parts. The first (Part 1—Preliminary) establishes the basic framework, deals with constitutional questions and, as outlined above, defines the various parcels of land. It also deals with ensuring constitutionally approved compensation for any acquisition of property (proposed section 6).

The second part (Part 2 – Protection of Malabar Headland Property) ensures the NSW Government will have the power to transfer the land to a third party, but only with the consent of the Commonwealth. Any future third parties will be similarly bound to comply with the regulation of the land established under the proposed Act (proposed section 4). While legal ownership may be transferred from the NSW Government, certain parameters are established under the Bill, which will apply to any owner. The owners of the land would be subject to Commonwealth regulations, and they cannot transfer the property without permission from the Commonwealth (proposed paragraph 10(1)(a)).

The second part also establishes, as mentioned above, that any transferred land is to be run as a National Park or for a purpose determined by the Commonwealth Minister in consultation with a NSW Minister (proposed paragraph 8(1)(b)). Interestingly the Commonwealth Minister is bound to make decisions consistent with ‘Australia’s obligations under the Biodiversity Convention’ and ‘the protection or promotion of Aboriginal cultural heritage’ (proposed subsection 9(5)). These requirements would ensure that the Minister acts within Constitutional parameters.

While the NSW Government (or a subsequent owner of the land) is subject to the Commonwealth’s power to regulate, this power is, in turn, subject to a requirement that a NSW Minister should be consulted regarding any such regulation and to the requirement that actions taken are consistent with international obligations and obligations to preserve aboriginal heritage (proposed section 9).

The third part of the Bill (Part 3 – Enforcement) allows for injunctions to prevent contraventions of the Bill. An injunction can be given by the Federal Court and may be ‘prohibitory’, that is, banning a behaviour, or ‘mandatory’, that is, requiring the doing of some act.[8] These injunctions can be applied for not just by the Commonwealth Minister but also by a range of interested persons. It is interesting to note that a NSW Minister is not an entity explicitly provided for as being able to apply for an injunction under these provisions, although the Minister may fall within the Bill’s wider definition of someone who has worked in the field over the preceding two years.

A natural ‘interested person’[9] is an Australian citizen or a person who is ordinarily resident in Australia (or an external territory), whose interests have been, are or would be affected by the conduct, or who has been working to protect or research the environment or Aboriginal cultural heritage during the two years immediately before the conduct took place (or before the application for the injunction). There is no apparent geographic restriction on where the protection, conservation or research may have taken place.

The field of ‘interested persons’ is made wider by the definition of certain organisations as ‘interested persons’. In this case the organisation must be incorporated, or otherwise established in Australia and either:

•       the organisation’s interests may be affected by the behaviour in question or

•       the activity sought to be regulated relates to the organisation’s objects or purposes which deal with protection or conservation of the environment, or ‘Aboriginal cultural heritage’.

In these cases, to be given standing, the organisation must also have ‘engaged in a series of activities’ related to these interests in the two years preceding the application.[10]

The provisions on standing mirror those in section 475 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). At the time of passage of the EPBC Act there were concerns that the provisions were too restrictive:

…there has been significant legal academic criticism of restrictions on standing in relation to matters of public concern. For example, the Australian Law Reform Commission in its inquiry into standing to sue for public remedies, has recommended that any person should be able to commence proceedings having a public element in nearly all circumstances. Limitations on such standing merely:

act as an extra source of unnecessary legal costs and delay. It does not act as an effective filter for disputes that are futile, vexatious or otherwise inappropriate for litigation. Such a filter is provided by other laws.[11]

Environmental groups have historically had some difficulties establishing their standing, however these provisions do not function to broaden the coverage.[12] The recognition of environmental and aboriginal groups which may have standing to protect the land under the Bill’s provisions could nevertheless have interesting outcomes. Different interest groups with standing to seek an injunction may have different perspectives on the appropriate course of action regarding the site.[13]

The final part (Part 4—General) provides for applications for review of certain decisions under the Act to be made to the Administrative Appeals Tribunal (proposed section 12) and also allows for regulations to be made (proposed section 13).

Concluding comments

The Bill seems likely to be an effective mechanism for managing this particular land. It entrenches arrangements that may otherwise have been achieved through contractual provisions and deeds or other forms of land management.

While the experience of environmental groups under the EPBC Act may not have informed the drafting of this Bill’s provisions on standing it is likely to be interest groups, along with the provisions of the Bill, which should ensure on-going care and attention to this area of land.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2680.

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ISSN 1328-8091

[1].               P Garrett, ‘Second reading speech: Malabar Headland Protection Bill 2012’, House of Representatives, Debates, 9 May 2012, p. 4237, viewed 23 August 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Ffdab017b-97a3-4480-a3f7-e214d5c068b2%2F0008%22

[2].               Explanatory Memorandum, Malabar Headland Protection Bill 2012, pp. 9-10, viewed 3 October 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4799_ems_0253423c-97dc-49b2-81db-c1814e2cd65e%22

[3].               Ibid., p. 8.

[4].               Ibid., p. 13.

[5].               Definition of ‘Malabar headland property’, proposed section 3.

[6].               P Garrett, ‘Second reading speech: Malabar Headland Protection Bill 2012’, op. cit., pp. 4237-4238.

[7].               Ibid., p. 4238.

[8].               Proposed subsections 11(2) and 11(4), and note there are also ‘interim’ injunctions and ‘additional orders with prohibitory injunctions’ available to the Federal Court.

[9].               See generally proposed subsection 11(6).

[10].               See generally proposed subsection 11(7).

[11].               K Guest, F Michaelis and B McCormick, Environment Protection and Biodiversity Conservation Bill 1998, Bills Digest, no. 135, 1998-99, Parliamentary Library, Canberra, 1999, viewed 20 July 2012, http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd9899/99bd135 quoting Australian Law Reform Commission (ALRC), ‘Beyond the door-keeper: standing to sue for public remedies’, ALRC website,
Report No. 78, 1996, p. 5, viewed 20 July 2012, http://www.alrc.gov.au/report-78

[12].               See generally the Hon. Justice P W Slicer, ‘Law, standing and the environment’, Address to the Environmental Defenders' Conference, ‘Unlocking the gates or floodgates’, 23 August 2002, viewed 3 October 2012, http://www.edo.org.au/edotas/pdf/slicer.pdf and more recently: A Edgar, ‘Extended standing — enhanced accountability? Judicial Review of Commonwealth environmental decisions’, Federal Law Review, vol. 39, no. 3, 25 March 2012, pp. 435-462, 2011; Sydney Law School Research Paper, no. 12/16, viewed 10 September 2012, http://ssrn.com/abstract=2028781

[13].               Thus for instance, the history of the Hindmarsh Island Bridge comes to mind, with its differing perspectives amongst interested parties. See generally J Norberry, Hindmarsh Island Bridge Bill 1996, Bills Digest, no. 50, 1996–97, Parliamentary Library, Canberra, 1996, viewed 3 October 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2FP4530%22