Chapter 1


Chapter 1

Background to the inquiry and the Bill

Conduct of the inquiry

1.1        On 3 March 2011, the Senate referred the Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011 to the Senate Environment and Communications Legislation Committee for inquiry and report by 13 May 2011. On 24 March 2011, the Senate granted an extension of time until 9 June 2011. The reporting date was subsequently extended to 15 June 2011.

1.2        The Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2011 (the Bill) is a private Senator's bill to amend the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The Bill was introduced by Senator the Hon Richard Colbeck on 2 March 2011. On 18 April 2011, Senator Colbeck forwarded to the committee a proposal to further amend the EPBC Act (Appendix 1). At the time of writing, the additional proposed amendment has not been presented to the Senate. This report addresses both the Bill and the proposed amendment.

1.3        The committee advertised the inquiry on its website and in The Australian, and invited submissions from interested organisations and individuals. The committee received 31 submissions and four supplementary submissions, as listed in Appendix 2. A public hearing was held in Canberra on 13 May 2011. A list of witnesses who gave evidence at the public hearing is at Appendix 3. The committee thanks the organisations and individuals that made written submissions, and those who gave evidence at the public hearing.

Note on references

1.4        References to submissions in this report are to individual submissions received by the committee and published on the internet.[1] References to the committee Hansard are to the proof transcript.[2] Please note that page numbers may vary between the proof and official Hansard transcripts.

Report structure

1.5        This report is divided into three substantive chapters. Chapter one provides an overview of the current process of establishing bioregional plans and Commonwealth marine reserves compared to the process proposed in the Bill. Chapter two considers matters raised for and against the Bill during the course of the committee's inquiry. Chapter three outlines matters raised that are outside the scope of the Bill.

Background and description of the Bill

Bioregional plans

1.6        The Bill would amend the EPBC Act to alter the process by which bioregional plans are made.[3] Bioregional plans form part of Australia's environment management strategy.[4] They provide an overview of a region's biodiversity and conservation values, and may establish objectives in relation to the values and strategies to achieve the objectives.[5] In addition, the plans may include an overview of the region's key ecological features, an analysis of regional pressures, and information to assist persons to determine whether to seek the Environment Minister's approval before conducting certain activities in the region.[6] In this way a marine bioregional plan provides increased certainty for people undertaking activities in marine environments. They can more easily understand what the values in a region are and whether their activity may require environmental approvals. While the majority of plans cover marine areas in Commonwealth waters, the plans may also be established for land‑based regions.[7]

1.7        The Department of Sustainability, Environment, Water, Population and Communities (the Department) advised that the plans are non-binding as they do not declare or alter a person's rights or obligations. Their purpose is to inform the administration of the EPBC Act.[8] The Minister is required to have regard to bioregional plans in making certain decisions under the Act.[9] Such decisions include fisheries export approvals, listing and recovery of species and ecological communities, and approvals for proposed activity in Commonwealth waters.[10]

1.8        More broadly, bioregional plans are intended to promote environment management and conservation values. The information contained in the plans is intended to foster a cross-jurisdictional approach to ecosystem management by Commonwealth, state and territory agencies. The plans are also designed to enhance community understanding of environmental management, and encourage decision‑making by private industry that is consistent with environmental management principles.[11]

1.9        While bioregional plans are not binding on persons, the committee notes that the decisions that may be informed by bioregional plans can impact rights and obligations. For example, without prior ministerial approval it is an offence to act in a manner which damages, or is likely to damage, Commonwealth waters.[12] The Minister may grant approval, and therefore an offence may be avoided, where the proposed activity is consistent with a bioregional plan.[13]

1.10      The Department advised that there are five steps to the process of developing bioregional plans. These are:

Characterisation of the region, including its natural systems and conservation values: a bioregional profile for each region brings together the available scientific information about a region’s biophysical and broad socio-economic characteristics and conservation values.

Regional assessment of the conservation values: this step consolidates information about the conservation values, their status and the pressures on them. The assessment is being used to categorise pressures on conservation values and identify regional priorities in relation to managing these pressures.

Development and release of a draft marine bioregional plan: consultation with stakeholders and the community provides essential input in developing a marine bioregional plan. The EPBC Act requires the Minister to consult publicly on a draft of the plan [...]

Release of the marine bioregional plan: following the Minister’s consideration of all input received on the draft plan it is finalised and released.

Update and review of the marine bioregional plan: plans are reviewed periodically to accommodate new information and data about conservation values and the pressures acting upon them, regional priorities and government policy priorities, and management and regulatory arrangements.[14]

1.11      Section 176 of the EPBC Act outlines the framework for establishing bioregional plans. Of the five steps, public consultation is expressly required under subsection 176(1). In undertaking public consultation, the Minister must publish, via the internet and relevant newspapers, a notice that includes an overview of the draft plan and the process and timeframe for providing public comment.[15]

Proposed amendments to the process of establishing bioregional plans

1.12      Bioregional plans are not legislative instruments and are not subject to parliamentary disallowance. The Bill would amend the EPBC Act to make bioregional plans disallowable instruments under section 46B of the Acts Interpretation Act 1901.[16] While bioregional plans would continue to be non‑legislative instruments, the amendment would authorise either House of Parliament to disallow a bioregional plan in accordance with Part 5 of the Legislative Instruments Act 2003 as modified by section 46B of the Acts Interpretation Act. The amendment would not operate retrospectively, but would apply only to bioregional plans made after the commencement of the provisions in the Bill.

1.13      The amendment would require bioregional plans be tabled in each House of Parliament within six sitting days of being made. If not laid before both Houses within this timeframe, the bioregional plan would cease to have effect.[17] Once tabled, both Houses of Parliament would have 15 sitting days in which to give a notice of motion to disallow the bioregional plan. If the motion is agreed to or has not been withdrawn within a further 15 sitting days, the bioregional plan would be taken to have been disallowed and would cease to have effect from the date of the disallowance.[18] Therefore, even once a bioregional plan had commenced, the disallowance process would mean that there would be a period of up to 36 sitting days in which it would be uncertain whether the bioregional plan would continue to operate. Based on the 2011 Parliamentary sitting pattern, this could translate to up to 180 calendar days, that is, approximately six months.

Commonwealth marine reserves

1.14      Senator Colbeck's proposed amendment to the Bill would amend the EPBC Act to alter the process for establishing Commonwealth marine reserves.[19] Section 344 of the EPBC Act allows the Governor-General to make Proclamations to establish Commonwealth reserves. Commonwealth reserves may apply to an area of land, an area of sea, or an area of both land and sea. Reserves covering areas of the sea and areas of both land and sea are commonly known as 'Commonwealth marine reserves'.[20] Commonwealth marine reserves applying to an area of sea can cover either a Commonwealth marine area, that is an area within Commonwealth waters, or an area outside Australia for which Australia has obligations regarding the area's biodiversity or heritage under an agreement with one or more country.[21]

1.15      The bioregional planning process may be used to identify areas in which to establish future Commonwealth marine reserves. Along with the state and territory governments, the Australian Government has committed to establishing a National Representative System of Marine Protected Areas (the NRSMPA) by 2012.[22] The NRSMPA has been under development by the Commonwealth, state and Northern Territory governments since its creation was first agreed by these jurisdictions in 1998.[23]

1.16      The NRSMPA is a network of marine reserves across Commonwealth, state and territory waters, of which Commonwealth marine reserves form one part.[24] As of 24 March 2011, there are 26 Commonwealth marine reserves.[25] The NRSMPA is intended to establish a marine protection strategy that is:

Comprehensive – include marine protected areas that sample the full range of Australia’s ecosystems,

Adequate – include marine protected areas of appropriate size and configuration to ensure the conservation of marine biodiversity and integrity of ecological processes, and

Representative – include marine protected areas that reflect the marine life and habitats of the area they are chosen to represent.[26]

1.17      Commonwealth reserves and Commonwealth marine reserves are also part of the Australian Government's implementation of the Guidelines for Protected Area Management Categories developed by the International Union for the Conservation of Nature (IUCN). Each reserve is assigned an IUCN category, which influences the management policies applying to the reserve.[27]

1.18      The EPBC Act requires a number of steps, including a process of public consultation, to be undertaken before a Proclamation to establish a Commonwealth reserve or Commonwealth marine reserve is made. The Minister is to have regard to a report prepared by the Director of the National Parks regarding the proposed reserve.[28] In preparing the report, the Director of National Parks is required to invite public comment and allow 60 days for comments to be received. The comments, and the Director's views regarding the comments, are to be noted in the report.[29] The Minister is also required to be satisfied that the appropriate IUCN category will be applied to the proposed reserve.[30]

1.19      Information provided on the Department's website outlines the process for declaring a Commonwealth reserve or Commonwealth marine reserve as follows:

Step 1. The Director of National Parks publishes a notice inviting the public to comment on the proposal to declare a Commonwealth reserve over the area, allowing a minimum period of 60 days for comments. This notice includes a statement of the proposed name of the reserve, the proposed boundaries of the reserve and any zones within the reserve, the purpose for which the reserve is to be declared, the IUCN category that the reserve (and any zones) will be assigned to, and the purposes for which it is intended to manage and use the reserve.

Step 2. Any native title holders, registered native title claimants and native title representative bodies for the area are notified of the proposed declaration, and given an opportunity to comment, in accordance with the requirements of the Native Title Act 1993.

Step 3. The Director of National Parks provides the [Minister for Sustainability, Environment, Water, Population and Communities] with a report on the Commonwealth reserve proposal. The report must include any comments received and the Director's views on the comments.

Step 4. If necessary a Regulation Impact Statement examining any impacts that declaration of the proposed Commonwealth reserve would have on business is prepared.

Step 5. [The Minister] considers the report from the Director of National Parks.

Step 6. The Minister decides not to proceed and thus the declaration process ends here OR the Minister is satisfied a reserve should be established and the Governor-General is advised accordingly.

Step 7. The Governor-General makes a Proclamation declaring the area to be a Commonwealth reserve...

Step 8. The Proclamation is registered on the Federal Register of Legislative Instruments.[31]

1.20      The Department advised that this consultation process exceeds the requirements under the EPBC Act:

A draft Commonwealth marine reserve network for each region will be published simultaneously with the draft Marine Bioregional Plan and a single public consultation process will cover both proposals. For the draft reserves network, however, this public consultation does not fulfil a statutory purpose and does not replace the statutory public consultation process required under section 351 of the Environment Protection and Biodiversity Conservation 1999 (EPBC Act)...The government’s preferred marine reserve network will then be subject to the processes of public consultation and reporting by the Director of National Parks, leading to a decision by the Minister as set down in the EPBC Act before the reserves are proclaimed by the Governor-General...[32]

1.21      During the course of the committee's inquiry an example of this dual consultation process was commenced. On 5 May 2011 the government announced the consultation process on the draft South-west Bioregional Plan and the associated proposed Marine Reserves Network. Minster Burke stated that 'we have extended the 60 day consultation period to 90 days to ensure people have every opportunity to provide feedback. The feedback and input the Government receives will assist in finalising the proposal for a new marine reserves network and bioregional plan for the south-west.'[33] This means that the marine reserve network will have a 90 day consultation period as well as the statutory consultation period.

Proposed amendments to the process of establishing Commonwealth reserves and Commonwealth marine reserves

1.22      Although Proclamations for Commonwealth reserves and Commonwealth marine reserves are legislative instruments, section 44 of the Legislative Instrument Act expressly states that the Proclamations are not subject to parliamentary disallowance. A Commonwealth reserve or Commonwealth marine reserve comes into being on the day a Proclamation commences. Unless the Proclamation specifies otherwise, the Proclamation will commence the day after it is registered on the Federal Register of Legislative Instruments.[34]

1.23      The Bill would amend the process for establishing Commonwealth marine reserves. The proposed Item 2, Schedule 1 of the Bill would amend section 344 of the EPBC Act to make Proclamations for particular Commonwealth marine reserves disallowable instruments. The amendment would not operate retrospectively, but would affect Proclamations made after the commencement of the provisions in the Bill.

1.24      Item 2 only applies to Proclamations for Commonwealth marine reserves covering Commonwealth waters or an area of both land and sea. The proposed amendment would not affect Proclamations for Commonwealth reserves over land areas or Proclamations for Commonwealth marine reserves for an area of sea that is outside Australia but for which Australia has international obligations.

1.25      The disallowance timeframes for a Proclamation of a Commonwealth marine reserve are similar to those outlined for bioregional plans in paragraph 1.13. The proposed amendment would require Proclamations for relevant Commonwealth marine reserves to be tabled in both Houses of Parliament within six sitting days of the instrument being registered. If not tabled, the Proclamation would cease to have effect from the day after the sixth sitting day.[35] Once tabled, both Houses of Parliament would have 15 sitting days in which to give a notice of motion to disallow the Proclamation. If the motion is agreed to or has not been withdrawn within a further 15 sitting days, the Proclamation would be taken to have been disallowed and would cease to have effect from that date.[36] Disallowance is not retrospective.[37] Therefore, if disallowed, the Proclamation would have had effect, and therefore the reserve would have been in existence, for up to 36 sitting days, which could equate to approximately six months. Without the approval of the House that disallowed the instrument, a further Proclamation to re-establish the Commonwealth marine reserve could not be made within six months of the disallowance.[38] The Legislative Instruments Act does not specify, and therefore does not limit, the grounds on which an instrument may be disallowed.

1.26      Parliament may disallow all or part of a legislative instrument.[39] There are several parts to a Proclamation to establish a Commonwealth reserve or a Commonwealth marine reserve. The Proclamation must:

  • allocate a name to the reserve;
  • state the purpose for which the reserve is declared;
  • state the depth of any land included in the reserve;
  • state the depth of the seabed that is under any sea included in the reserve; and
  • assign an IUCN category to the reserve.[40]

1.27      However, while this is possible under the disallowance process set out in the Legislative Instruments Act, if part of the Proclamation was disallowed the Proclamation would no longer meet the requirements of the EPBC Act.

Comment of the Scrutiny of Bills Committee

1.28      The Senate Standing Committee for the Scrutiny of Bills reviewed the Bill and had no comment on its provisions.[41] The committee considered the Bill prior to Senator Colbeck circulating proposed amendments on 18 April 2011.

Navigation: Previous Page | Contents | Next Page