BILLS DIGEST NO. 15, 2017–18              14 August 2017

Great Barrier Reef Marine Park Amendment Bill 2017

Sophie Power
Science, Technology, Environment and Resources Section 

Date introduced:  15 June 2017

House:  House of Representatives

Portfolio:  Environment and Energy

Commencement: 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 August 2017.

Purpose of the Bill

The purpose of the Great Barrier Reef Marine Park Amendment Bill 2017 (the Bill) is to amend the Great Barrier Reef Marine Park Act 1975 (the GBRMP Act) to ensure that management plans are not revoked when regulations under the GBRMP Act are repealed and remade as a result of the sunsetting regime under the Legislation Act 2003. The proposed amendments are technical in nature and do not appear to change the substance of the regulatory measures applied under the GBRMP Act.

Background

Great Barrier Reef Management Plans

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.[1] The GBRMP Act also establishes the Great Barrier Reef Marine Park Authority (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.[2] While the whole marine park is covered by a zoning plan, management plans are also in place in certain areas:

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.[3]

There are currently four plans of management for areas within the Great Barrier Reef Marine Park:

•       Cairns Area Plan of Management 1998

•       Hinchinbrook Plan of Management 2004

•       Shoalwater Bay (Dugong) Plan of Management 1997 and

•       Whitsundays Plan of Management 1998.[4]

Sunsetting of legislative instruments

Part 4 of Chapter 3 of the Legislation Act 2003 provides for the automatic repeal of many legislative instruments after a certain period of time (generally 10 years), unless particular steps are taken to preserve them. This process is known as sunsetting, with the aim being to keep legislative instruments up to date and in force only for as long as needed.[5]

There are mechanisms in the Legislation Act for extending the life of legislative instruments. In particular, the Attorney-General may (by legislative instrument) defer sunsetting in some circumstances.[6] In addition, either House of Parliament may also resolve to continue in force a legislative instrument that would otherwise sunset.[7]

There are also some exemptions from the sunsetting provisions of the Legislation Act. These exemptions are listed under section 54 of the Legislation Act and Part 5 of the Legislation (Exemptions and Other Matters) Regulation 2015.

The sunsetting provisions are currently being reviewed, and the review committee is scheduled to report to the Attorney-General before 1 October 2017.[8]

Committee consideration

Senate Selection of Bills Committee

On 9 August 2017, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.[9]

Senate Standing Committee for the Scrutiny of Bills

The Senate Scrutiny of Bills Committee had no comment on the Bill.[10]

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

At the time of writing, no major interest groups appear to have commented on the Bill.

Financial implications

According to the Explanatory Memorandum, the Bill will have ‘no significant financial impacts’, but:

… indirectly supports improved economic efficiency as it is expected that Commonwealth Government resources would be consumed if plans of management made under the Act were inadvertently revoked due to the sunsetting process and were required to be remade.[11]

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 on the basis that it does not engage any human rights. This is said to be because the Bill will have a purely technical effect in preventing the unintended repeal of a plan of management, rather than altering the substance of the obligations under such a plan.[12]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered that the Bill did not raise human rights concerns.[13]

Key issues and provisions

Management plans

As noted earlier in this Digest, the GBRMP Act provides a framework for planning and management of the Great Barrier Reef Marine Park. The whole marine park is covered by a zoning plan, and management plans are also in place in certain areas which are intensively used or particularly vulnerable.

Part VB of the GBRMP Act sets out the processes relating to management plans, including their preparation, amendment and revocation. For example, when making a plan of management, GBRMPA is required to give public notice and undertake consultation on the draft plan.[14]

For the purposes of the current Bill, the key relevant provisions in Part VB of the GBRMP Act are section 39ZD and section 39ZH, which are explained in turn below.

Enforcement provisions in management plans

Subsection 39ZD(5) in Part VB provides that plans of management may have ‘enforcement provisions’, prohibiting or regulating the doing of something, or requiring the doing of something (such as restricting particular activities in certain areas).[15] So, for example, the Shoalwater Bay (Dugong) Plan of Management contains provisions restricting the use of fishing nets in the Shoalwater Bay area.[16]

Paragraph 66(2)(ba) of the GBRMP Act provides that the regulations may give effect to the enforcement provisions of a plan of management. The Great Barrier Reef Marine Park Regulations 1983 (the Regulations) do contain regulations giving effect to the enforcement provisions in each of the four management plans (outlined earlier in this Digest).[17] For example, regulation 171 creates an offence for the contravention of certain enforcement provisions in the Shoalwater Bay (Dugong) Plan of Management.

Revocation of management plans

Section 39ZH provides for the revocation of management plans. Under subsection 39ZH(1), GBRMPA may revoke a management plan by legislative instrument. Subsection 39ZH(4) further provides that, if regulations providing for giving effect to the enforcement provisions of a management plan are repealed or otherwise cease to have effect, the plan of management is revoked.[18]

Implications of the sunsetting regime

The Regulations are subject to the sunsetting provisions in the Legislation Act and are due to ‘sunset’ on 1 April 2018,[19] at which time they will be automatically repealed. Management plans under the GBRMP Act are specifically excluded from the sunsetting provisions of the Legislation Act.[20] However, as currently drafted, subsection 39ZH(4) of the GBRMP Act means that the management plans will be revoked when the Regulations are repealed automatically under the sunsetting regime. As the Explanatory Memorandum states, this outcome would also arise if the Government decided to make regulations that repealed the existing Regulations for any reason—for example, as a pre-emptive action in advance of their sunsetting on 1 April 2018:

If the Regulations are repealed and then remade to prevent them from sunsetting, subsection 39ZH(4) will be triggered and the plans of management will be revoked.[21]

Subsection 39ZH(4) would also result in the revocation of management plans if the Regulations ceased to have legal effect for some other reason (that is, other than by being repealed). This would include, for example, if the Regulations became redundant due to amendments to the provisions of the GBRMP Act that delegate legislative power, or if a court held that the Regulations were invalid.

In any of these events, it would then be necessary for GBRMPA to remake these plans, and as the Explanatory Memorandum identifies, making a new management plan is ‘extremely resource intensive’:

The [Great Barrier Reef Marine Park] Authority is required to comply with the requirements of Part VB of the Act when making a plan of management, which includes giving notice and undertaking consultation on the draft plan. It would be extremely difficult to align the making of new plans with the remaking of the Regulations in circumstances where this is necessary to prevent the Regulations from sunsetting, leaving the Great Barrier Reef at risk of being without the protective measures in each plan.[22]

The Bill proposes to rectify this ‘unintended consequence of the sunsetting regime’,[23] although its remedial provisions would also seem to apply in other circumstances in which the Regulations are not in force (for example, if they were repealed or otherwise ceased to have effect). Item 2 of the Bill would repeal subsection 39ZH(4) and replace it with proposed subsections 39ZH(4) and (4A). Proposed subsection 39ZH(4) provides that a plan of management containing enforcement provisions will be ‘of no effect’ where there are no regulations in force giving effect to those enforcement provisions. This means management plans will not be revoked, but will instead be inoperative where there are no relevant regulations in force. The Explanatory Memorandum suggests:

This will maintain the practical effect of the repealed subsection, so that a plan of management is not required to be complied with in circumstances where there are no regulations in force giving effect to the enforcement provisions of the plan.[24]

Once any new regulations commence the relevant management plan will be ‘revived’.[25]

Proposed subsection 39ZH(4A) provides that subsection 39ZH(4) does not prevent a management plan from being amended or revoked while it is ‘of no effect’. The Explanatory Memorandum suggests:

This is necessary because where it is proposed to revive a plan of management through the commencement of regulations to give effect to the enforcement provisions of the plan, amendments may need to be made to the plan before it is about to be revived. Alternatively it may be necessary to revoke a plan of management in circumstances where it is not proposed to revive the plan.[26]

GBRMPA compliance with management plans

Section 39ZI of the GBRMP Act requires GBRMPA to perform its functions and exercise its powers in accordance with any management plan that is in force. Item 3 proposes to add a proposed subsection 39ZI(4) which will provide that a management plan that has no effect (because of subsection 39ZH(4)) will be taken not to be in force under section 39ZI. This means that GBRMPA will not be required to comply with management plans when there are no regulations in place, including as a result of the sunsetting regime. The Explanatory Memorandum suggests:

It is not appropriate that the [Great Barrier Reef Marine Park] Authority be required to comply with a plan of management in such circumstances because there will be no corresponding expectation that the public comply with it.[27]

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[1].              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).

[2].              See further: GBRMPA, ‘How the Reef is managed’, GBRMPA website; and GBRMP Act, Part II (establishment, functions and powers of the GBRMPA) and Parts V–VB (core provisions establishing the planning and management framework).

[3].              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: GBRMP Act, section 39ZF; and Legislation (Exemption and Other Matters) Regulation 2015, regulation 12, table item 32(c).

[4].              GBRMPA, ‘Plans of management’, op., cit.

[5].              Legislation Act, section 49. See also Attorney-General’s Department (AGD), ‘Legislation Act 2003’, AGD website.

[6].              Legislation Act, sections 51 and 51A.

[7].              Ibid., section 53.

[8].              See further: AGD, ‘Review of the sunsetting framework under the Legislation Act 2003’, AGD website. The review is required to be carried out under section 60 of the Legislation Act.

[9].              Senate Selection of Bills Committee, Report, 8, 2017, The Senate, 9 August 2017.

[10].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 7, 2017, The Senate, 21 June 2017, p. 27.

[11].              Explanatory Memorandum, Great Barrier Reef Marine Park Amendment Bill 2017, p. 1.

[12].              The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

[13].              Parliamentary Joint Committee on Human Rights, Report, 6, 2017, 20 June 2017, p. 26.

[14].              See, for example, GBRMP Act, sections 39ZB, 39ZD and 39ZE.

[15].              Note that those provisions are required to be included in a separate part of the plan: subsection 39ZD(5).

[16].              Shoalwater Bay (Dugong) Plan of Management 1997, clause 6.

[17].              Great Barrier Reef Marine Park Regulations 1983, Parts 9–12.

[18].              In other words, the substantive obligations (‘enforcement provisions’) in a management plan dealing with matters such as access to, or use of, an area will cease to exist if the regulations that support the practical enforcement of those obligations (such as offences for contravention of enforcement provisions) cease to exist.

[19].              Legislation Act, subsection 50(2), table item 7. (This reflects that the principal regulations were registered on the Federal Register of Legislation on 1 January 2005 as part of the ‘bulk registration’ of older instruments on the Federal Register of Legislation.)

[20].              Legislation (Exemptions and Other Matters) Regulation 2015, regulation 12, table item 32(c) and the Note to section 39ZF of the GBRMP Act.

[21].              Explanatory Memorandum, op. cit., p. 1.

[22].              Ibid.; see also GBRMP Act, Part VB, sections 39ZB, 39ZD and 39ZE.

[23].              J Frydenberg, ‘Second reading speech: Great Barrier Reef Marine Park Amendment Bill 2017’, House of Representatives, Debates, 15 June 2017, p. 6601.

[24].              Explanatory Memorandum, op. cit., p. 4.

[25].              Ibid.

[26].              Ibid.

[27].              Ibid., pp. 4–5.