Scrutiny of Great Barrier Reef Marine Park Zoning Plans

On 30 June 1998 the Committee reported to the Senate on its continuing scrutiny of the Great Barrier Reef Marine Park Zoning Plans, see Annual Report 1997-98, p.91. The Committee advised that there were a number of important matters of continuing concern with these instruments. The Committee can now report that it has pursued the matter and has received assurances from the Minister which it considers acceptable.

The Committee’s concerns related to what appeared to be an invalid subdelegation to officials of legislative powers to open or close considerable areas of the Great Barrier Reef to fishing, including recreational fishing and spearfishing, for periods of up to five years. These powers were to be exercised by instruments which were not even subject to tabling, much less to possible disallowance. In reply to the Committee’s query the Minister provided advice from the Office of Legislative Drafting (OLD) in the Attorney-General’s Department (AGD) that if the powers were legislative then they "certainly" should be provided directly by the Zoning Plans and thus be subject to full parliamentary control. The OLD advised, however, that the powers were in fact administrative and therefore valid.

The Committee reported that it was startled by this advice, which appeared to fly in the face of what it understood to be the difference between legislative and administrative powers. The Committee then asked the Minister for advice on the matter from the Office of General Counsel (OGC) in the AGD. The OGC advice, which accorded with the views of the Committee, was that the powers in question were "clearly" of a legislative nature. The OGC advice did not refer to the earlier advice from OLD. The Committee then suggested to the Minister that the Zoning Plans should be remade as soon as possible to correct the present unsatisfactory position.

The Minister responded to the Committee by providing further advice from the OGC that the powers, although legislative, would be likely to survive a court challenge to their validity on the grounds of subdelegation. The Committee replied that it did not accept this advice but that in any event it was a breach of parliamentary propriety to make legislative instruments which are not subject to tabling and disallowance. This was where the matter stood at 30 June 1998 when the Committee previously reported to the Senate on the Zoning Plans.

Since then the Committee has actively continued its scrutiny and, as noted above, has achieved what it regards as a satisfactory outcome. The Committee first wrote directly to the Attorney-General for more detailed advice on aspects of the legal position, with particular emphasis on the implications for the operation of the Legislative Instruments Bill. In this latter context the Committee wanted to be quite sure that the provisions of that Bill, if enacted, would apply to the instruments for which the Zoning Plans provided. The resulting opinion from the Chief General Counsel, Australian Government Solicitor, reviewed all the previous advice from the different areas of AGD and concluded that the provisions in question should be properly regarded as legislative. The Chief General Counsel also concluded, however, that the subdelegation of legislative power was not invalid. Nevertheless, the Chief General Counsel noted that, even if valid, there may be quite proper policy issues as to whether it is appropriate in all the circumstances to confer the delegated power. The Attorney-General advised that, in relation to the Legislative Instruments Bill, this latest advice would be drawn to the attention of the relevant officers.

Following this reply the Committee again wrote to the Minister asking that the decisions under the Zoning Plans be made subject to disallowance. The letter reads as follows:

2 December 1998
Senator the Hon Robert Hill
Minister for the Environment and Heritage
Parliament House
CANBERRA ACT 2600

Dear Minister

I refer to the three Great Barrier Reef Marine Park Zoning Plan Amendments about which the Committee has previously written to you.

As I mentioned in my letter of 30 June 1998 the Committee wrote to the Attorney-General about the Amendments and has now received an opinion of 24 August 1998 (attached) from the Chief General Counsel which confirms the view of the Committee and which indeed confirms earlier advice from the Office of General Counsel of 19 October 1997 and 16 January 1998 that the instruments are legislative. This is in contrast to earlier advice from the Office of Legislative Drafting of 2 and 5 December 1996 that the instruments are administrative.

The Chief General Counsel remains of the view, however, that although legislative the instruments are not invalid. The Committee does not accept this view, but whether or not the powers in the instruments are void it is a clear breach of parliamentary authority that such significant legislative instruments are not subject to parliamentary scrutiny and possible disallowance. On 30 June 1998 on behalf of the Committee I made a special statement to the Senate to this effect. I also draw your attention to the comments in the final paragraph of the opinion of the Chief General Counsel, viz. "Of course, even if the delegation is valid, there may be quite proper policy issues as to whether it is appropriate in all the circumstances to confer the delegated power on the authority." The Committee endorses this view and would appreciate your advice that amendments will be made to make the exercise of the powers subject to parliamentary disallowance. The present position is deficient in relation to transparency, accountability, sound public administration and parliamentary propriety.

The Attorney-General has advised that the OLD opinions of 2 and 5 December 1996 are subject to client privilege but that he had passed our request for copies of the opinions to the Authority. The Committee understands that the Authority would prefer a formal request from the Committee before the opinions are released and I now make such a request. The Committee notes, however, advice from the Attorney-General that the latest opinion from the Chief General Counsel will be drawn to the attention of relevant officers in your portfolio. The Committee would welcome your advice that if any of your portfolio areas have previously advised any person that these matters are administrative decisions then that advice will be formally withdrawn in favour of advice that they are legislative. In any event the Committee assumes that you have been doing this since October 1997.

In particular and importantly the Committee understands that there may be matters of litigation, grievance or dispute about the exercise of the powers. Here also the Committee would appreciate your assurance that your portfolio areas have clearly informed everyone affected that it has been the formal position of the Commonwealth since October 1997 that the powers are legislative and not administrative. It should be indicated to such people that they could argue that the powers are void. It would be a serious matter if any people affected or aggrieved about the exercise of the powers were not clearly informed by your officials of the official Commonwealth position.

Because of the importance of these matters the Committee would be grateful for an early reply.

Yours sincerely
Bill O’Chee
Chairman

Almost five months later, despite having asked for an early reply and despite reminders from the Committee staff, the Committee had not received a reply. It therefore decided that it would be helpful to discuss the matter with the Minister and Senator O’Chee and Senator Coonan did this on 29 April 1999. The Minister generously gave the Committee members as much time as they needed to state their case and in turn clarified aspects of his position. The Minister advised that the present round of closures and openings on the Reef was complete and that it was not intended to make any more until the end of the existing experimental period in 2001. However, any future determinations made after that date would be included in Zoning Plans which are subject to full parliamentary scrutiny and control. A subsequent Committee meeting agreed that this was a satisfactory outcome in all the circumstances. The Committee is therefore able to report to the Senate that all future activity in this important and sensitive area of protection of the Great Barrier Reef Marine Park will accord with parliamentary propriety.

The Committee is grateful to the Minister for the Environment and Heritage, Senator the Hon Robert Hill, for his personal attention to its concerns.

Bill O’Chee
Chairman