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Environment, Sport and Territories Legislation Amendment Bill (No.2) 1994
House: House of Representatives
Portfolio: Minister for the Environment, Sport and Territories
Commencement: On the day on which the Act receives the Royal Assent.
To amend a number of different Principal Acts administered within the portfolio of Environment, Sport and Territories. The Principal Acts to be amended are:
* Great Barrier Reef Marine Park Act 1975
* National Parks and Wildlife Conservation Act 1975
* Norfolk Island Act 1979
* Australian Sports Commission Act 1989
* Australian Heritage Commission Act 1975
* Australian Sports Drug Agency Act 1990
This is an omnibus Bill which contains various amendments to a number of different Principal Acts. The Bill has no central theme.
Amendments to the Great Barrier Reef Marine Park Act 1975
The object of the Great Barrier Reef Marine Park Act 1975 (the "GBRMP Act") is to provide for the establishment, control, care and development of a marine park in the Great Barrier Reef Region. Background comments on the more significant amendments contained in the Bill are outlined in parts 1 to 4 of this Digest.
1. Marine Pollution: MARPOL 73/78 International Convention
The Bill, in part, deals with ship- generated marine pollution.
Of relevance to a consideration of the marine pollution issue the GBRMP Act, in 1991, imposed a requirement for compulsory pilotage for certain types of vessels in designated areas of the Reef, and extended this requirement to international waters at the northern section of the reef. The Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, Ships of Shame: Inquiry into Ship Safety, noted that the international maritime industry has accepted this requirement. 1 The importance of protecting this valuable environment is recognised world- wide. The Bill contains a minor amendment to clarify the penalty provision for operating a regulated ship without a pilot.
The International Convention for the Prevention of Pollution from Ships of 1973 (subsequently amended by Protocol in 1978) is now referred to as MARPOL 73/78. The Convention addresses the issue of ship- generated pollution. MARPOL 73/78 contains 5 separate Annexes which are implemented on a progressive basis by signatories to the Convention. The type of ship- generated pollution which the Annexes cover are:
. Annex 1 (Oil);
. Annex 11 (Noxious Liquid Substances);
. Annex 111 (Harmful Substances in Packaged Form);
. Annex IV (Sewage) [not yet in force]; and
. Annex V (Garbage).
In the area of oil pollution from ships, MARPOL 73/78 has Regulations which extend the application of certain parts of the Convention to ships which have cargo spaces constructed and utilised for carrying bulk oil of an aggregate capacity of 200 cubic metres or more. In simple terms, MARPOL 73/78 Regulation 2.2 expands the definition of an "oil tanker" to include smaller cargo vessels which are not a conventional oil tanker but which are capable of spilling significant quantities of oil. The expanded definition will also apply to, say, large coal carriers which navigate in the reef waters and which can contain up to 10,000 tonnes of fuel oil. 2
One of the proposed amendments in the Bill (Item 1 in Schedule 1), for example, adopts the MARPOL 73/78 expanded definition of an oil tanker so that protection measures for the Great Barrier Reef extend to this type of vessel and are consistent with MARPOL 73/78. Parties which are signatories to MARPOL 73/78 are obliged to prohibit marine pollution violations and to take legal procedures against offenders (Article 4 of the Convention). 3
2. Functions of the Great Barrier Reef Marine Park Authority: Membership
Section 7 of the GBRMP Act lists the functions of the Great Barrier Reef Marine Park Authority ("the Authority"). The basic functions of the Authority are to make recommendations and provide information and advice to the Minister on matters associated with the care and development of the Great Barrier Reef Marine Park. In addition, the Authority carries out research and investigation relevant to the Marine Park and prepares appropriate zoning plans. Zoning plans, in a practical sense, apply to relatively large regions and not necessarily to specific local areas. The Authority also has an educational and public awareness role.
The Bill proposes an additional function for the Authority and that is to prepare plans of management (a proposed new Part VB to the Principal Act) which can apply to small areas, ecosystems and individual species within the Marine Park.
At present the Authority consists of a Chairperson (Dr Ian McPhail) and two other members. The Bill proposes an expansion of the membership of the Authority to include a member appointed to represent the interests of the Aboriginal communities adjacent to the Marine Park.
3. Amendments To Penalties for Breaches of the Great Barrier Marine Park Act 1975
Under the existing provisions of the GBRMP Act it is an offence, for example, to engage in any drilling or mining within the Marine Park unless the activity is for scientific research and investigation and which has the approval of the Authority. The existing law, impliedly, utilises a subjective standard to determine liability i.e. the necessary mental element ("the guilty mind") was present in the offender. This involves the prosecution in proving a subjective fault element i.e. what the accused knew, believed or intended at the time of the particular conduct. This particular standard is an essential issue in prosecutions for serious criminal offences. It is regarded as a high standard, and criminal liability can be avoided if the accused can show, for example, that what happened was an accident. A law which creates an offence can set a lower standard for proof of an offence, or, in some offences (e.g. public health matters) can even relieve the prosecution of proving that the accused had the necessary intention.
The Bill proposes to set the mental fault element for proof of an offence (such as unapproved drilling or mining) at "intentionally or negligently". This constitutes a lowering of the fault standard to be proved by the prosecution. The effect will be to provide that an offence may be proved where an accused may not have intentionally engaged in culpable conduct but has been negligent. The Explanatory Memorandum to the Bill states that this change "...is to encourage a greater assumption of responsibility by persons undertaking activities in the Marine Park." 4
Certain penalties under the GBRMP Act have been increased. The penalties, for example, for using or entering a Zone in the Marine Park "intentionally or negligently" for a non- permitted purpose have been doubled under the Bill. The rationale for the increases in penalties is a recognition of the increased pressure from usage of the Marine Park and the potential for illegal commercially- oriented activities in such a vast area.
4. Marine Park Inspectors: Powers of Inspectors: Privacy
Under the existing GBRMP Act, Marine Park inspectors are appointed from staff of the Authority or from a relevant Queensland Government service (including State police), or Commonwealth agencies. At present, Inspectors may:
. in certain circumstances, arrest without warrant;
. search an arrested person and seize a relevant item (including any weapons); and
. stop, detain and search an aircraft or vessel.
The Bill proposes to expand the class of persons who may be appointed as an Inspector to include community rangers from Aboriginal communities in North Queensland.
The Bill also proposes to provide a clarification of the powers of Marine Park Inspectors. For example, Inspectors will be given an express power to give reasonable directions to a person either orally, by radio or in writing to ensure that there is compliance with the GBRMP Act. The power to arrest without warrant is amended to make it mandatory that the person must be released if subsequently the Inspector reasonably believes that an offence has not been committed, or that the matter can be adequately dealt with by summons.
The Bill also proposes to define, and in a technical sense, restrict the powers of an Inspector to conduct personal searches of an arrested person. Under the existing legislation the power of search is not adequately defined and, theoretically, could be very intrusive.
Under the proposals in the Bill, Inspectors will be restricted to either an ordinary search or a frisk search of an arrested person, at or soon after arrest. Such searches, where practical, are to be carried out by an Inspector of the same sex. The difference between a frisk search and an ordinary search is that a frisk search involves patting- down the person and inspecting any garments removed voluntarily by the person. An ordinary search involves an inspection of the person's overcoat, coat or jacket and any gloves, shoes or hat, when removed. An ordinary search can include articles in the person's possession.
Note: The proposal for the inclusion of a specific provision to enable an ordinary search or frisk search of an arrested person within the Marine Park is said to be consistent with the provisions on the search of an arrested person in other Commonwealth legislation e.g. Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 ("Commonwealth Crimes Act"). 5 The Bill does adopt the same definitions as are used in the Commonwealth Crimes Act. It should be noted that the Commonwealth Crimes Act also deals with arrest without warrant of prisoners unlawfully at large and of persons on bail (i.e. where a constable believes on reasonable grounds that the person on bail has contravened or is about to contravene a bail condition). Frisk searches are also relevant in Customs matters.
It is conceded that the marine environment needs to be protected. It is also conceded that small marine molluscs, for example, can be hidden on a person. Likewise, weapons and implements involved in such unlawful activities can also be concealed on a person. The express granting of powers to any government official to engage in touching another person, however, gives rise to consideration of the important issue of privacy of the person. What has to be considered is whether the ordinary citizen's privacy should be invaded (even while under arrest) for the purpose of protecting the environment, as distinct from, say, a frisk search to combat the illegal importation of drugs at an international airport. Should it not be sufficient for a Inspector in the Marine Park to be empowered only to direct an arrested person to empty their pockets, or to remove a coat/jacket ? The privacy issue is important because it leaves open, albeit a very remote possibility, that such powers can be improperly used e.g. as a tool of discrimination against a particular group in society.
The Principles Governing the Exercise of Powers of Intrusion formulated by the Australian Law Reform Commission state:
Powers of search of the person
11. A person should not exercise a power to search another person except with that latter person's consent or in accordance with law.
12. A person should not exercise a power to search another person except for the purpose of preventing the loss, concealment or destruction of evidence relating to an offence or, where the person to be searched has been arrested, for the purpose of removing any dangerous weapon that the person may be carrying.
13. Where a person exercises a power to search another person, he should do with respect for the dignity of the person searched.
14. Only a medical practitioner should be allowed to search a body cavity of another person. 6
The proposed provisions in the Bill to empower Marine Park Inspectors to conduct a frisk search are consistent the Principles but the issue is whether such a power for intrusion of personal privacy of the citizen is justified for the protection of the environment. The point being suggested is that the powers of personal search in a Marine Park should be further "wound- back" and expressly confined to an ordinary search of the person. The example of hiding a small mollusc has been given above, but it is difficult to envisage the ease with which a below water species can be hidden on the person. Land- based species (including, say, fertilised eggs) are, as a generalisation, protected under State conservation law (unless, of course, an island is Commonwealth land). It would appear that the main reason (and one which is understandable) for frisk searches is to protect the safety of Inspectors by enabling them to detect concealed weapons.
Equivalent environmental legislation such as the New South Wales National Parks and Wildlife Act 1974 [at section 164(1)(c)] states that a duly authorised person (e.g. a ranger):
(c) may, for the enforcement of the provisions of this Act or the regulations, exercise the powers and authority of a constable.
Impliedly, this would probably extend to authorise a frisk search of an arrested person 7 but the New South Act does not expressly provide for a frisk search. Similarly, the Queensland Nature Conservation Act 1992 contains a provision to empower a police officer or a special conservation officer to arrest a person suspected of an offence under the Act. The Queensland Act also contains a provision (section 140) to allow "other powers" to be prescribed by Regulation. It is conceded that, technically, the State laws would probably permit more intrusive personal searches than that proposed under the Commonwealth Bill. To date, the Queensland legislation has not been used to prescribe "other powers" such as a frisk search authority for special conservation officers. It appears that when such a situation arises, the detained person is placed in the custody of a police officer. It is common for environmental protection legislation to authorise police to perform protective functions and in doing so, police may exercise conventional police powers.
The suggestion is made, however, that the Bill might provide an opportunity to determine whether a frisk search is an appropriate power to be exercised in the Great Barrier Reef Marine Park.
Amendment to the Australian Heritage Commission Act 1975
A credit card transaction is a form of borrowing. Section 37 of the Australian Heritage Commission Act 1975 prohibits the Commission from borrowing moneys. The Bill contains a technical amendment to authorise the use, by the Commission, of conventional credit cards, as an exception to section 37.
Amendments to the Australian Sports Commission Act 1989
Similarly, the Australian Sports Commission will be empowered to use credit cards. Under the existing Act, the Commission may only borrow from the Commonwealth (section 46).
The Bill also adds to the Membership of the Commission, the Secretary to the Department of Environment, Sport and Territories as an ex- officio member of the Commission. At present, the Act provides for a Chairperson, Deputy Chairperson and 5 to 10 Members with sporting interests and/or backgrounds. According to the Explanatory Memorandum (paragraph 182) to the Bill, this arrangement is to enable the Secretary to continue to advise the Minister after a number of functions are transferred from the Department to the Commission. The functions are not specified in the Explanatory Memorandum, and the Second Reading Speech is yet to be made. It is understood that the functions may include sports grants (e.g. grants to Life Saving Organisations).
The proposed dual role for the Secretary is noted (i.e. Secretary of an executive department and Member of a statutory body). Both functions involve advising the Minister. Under the existing Act the Australian Sports Commission already has a specific function to advise the Minister in relation to the development of sport (section 7(1)(a)). The proposed amendment invites the consideration as to why it is necessary for the Secretary to have a dual reporting role.
The Commission is responsible for funding and development of sport. The Commission's programs include coverage of elite sports (e.g. AIS Scholarship Programs), development grants, Women's sports and competition grants.
Amendment to the Australian Sports Drug Agency Act 1900
Similarly, the Australian Sports Drug Agency will be empowered to use credit cards.
Amendments to the National Parks and Wildlife Conservation Act 1975
The Director of the Australian National Parks and Wildlife Service will be empowered to use a credit card.
The Bill also provides that an amount equal to the fees collected under the Wildlife Protection (Regulation of Exports and Imports) Act 1982 may be paid from the Consolidated Review Fund to the Australian National Parks and Wildlife Fund. The retention of fees collected for the export of wildlife is part of a program of enhanced cost recovery for these activities. Consequently, it has also been recommended that there be an increase in such fees. 8 It has been noted that an increase in fees is consistent with the user pays principle but it may also place increased pressure on the Service to expedite its response rate as well, and may (albeit a remote possibility) encourage smuggling (i.e. to evade the payment of increased fees). 9 It may also be observed that, in some way, an incentive such as increased fees for exports and imports of wildlife, and retention of those fees may not sit well with a Service which is established to protect wildlife.
Amendment to the Norfolk Island Act 1979
At the request of the Legislative Assembly of Norfolk Island, references in the Act to "President" and "Deputy President" of the Assembly will be changed by the Bill to "Speaker" and "Deputy Speaker".
The clauses in the Bill simply provide for the amendment of the various Acts by way of a set of Schedules to the Bill.
Schedule 1 includes the following amendments to the Great Barrier Reef Marine Park
. Item 1 includes the proposed definitions for "frisk search", "oil tanker", "ordinary search" and "plan of management".
.Item 5 contains the proposed amendment to allow an Aboriginal representative to be appointed to the Marine Park Authority.
. Items 6 to 30 deal with the lowering of the fault element for a breach of the Act to include conduct which is "negligent", as well as increasing various penalties for marine pollution.
. Item 31 adds the proposed new function for the Great Barrier Reef Marine Park Authority to prepare plans of management for the Marine Park (a new Part VB - Plans of Management).
. Item 31 will enable the Authority to appoint "any person" as an Inspector (this amendment is to enable Aboriginal rangers from Aboriginal communities to be appointed as Marine Park Inspectors).
.Items 34 to 42 revise and clarify (with some restrictions) the powers of the Marine Park Inspectors (Item 37 deals with the power to conduct a frisk search of an arrested person).
. Items 44 to 54 mainly deal with a conversion of penalties in the Act from amounts expressed in dollars to the new form of penalty units (Item 44 contains the minor clarification of the penalty for operating a regulated ship without a pilot). One penalty unit equals $100.
Schedule 2 contains amendments to the Great Barrier Reef Marine Park Act 1975 to make the language used in the Act gender neutral.
Schedule 3 contains the minor miscellaneous amendments to other separate Acts administered by the Environment, Sport and Territories portfolio. Apart from the matter of the use of credit cards, these amendments include:
.Item 6 - the addition of the Secretary of the Department of Environment, Sport and Territories as an ex officio member of the Australian Sports Commission.
.Item 20 - the authority for payments from the Consolidated Review Fund of amount equivalent to fees and charges levied by the Australian National Parks and Wildlife Service under the Wildlife Protection (Regulation of Exports and Imports) Act 1982 and Regulations.
1. Australia, Ships of Shame: Inquiry Into Ship Safety, Report from the House of Representatives Standing Committee on Transport, Communications and Infrastructure, Australian Government Publishing Service, Canberra, December 1992: 47. See also the Prime Minister's (Hon Paul Keating MP) Press Release of 20 July 1994 on the launch of the Great Barrier Reef Strategic Plan.
2. A brief description of the types of vessels plying the reef waters is found in Grose, P. 'Oil Spills, Tourism and the Great Barrier Reef: An Unpalatable Mix: The Role of Regulation and Self- Regulation', Environmental and Planning Law Journal, Vol 11(5), Law Book Company, Sydney, October 1994: 395- 408.
3. MARPOL: How to do it, International Maritime Organization, London, 1993: 11. The text of MAPOL 73/78 and its Regulations can be found in MARPOL 73/78, International Maritime Organization, London, 1992. Regulation 2 covering the carriage of oil in bulk is found at page 62.
4. Explanatory Memorandum to the Environment, Sport and Territories Legislation Amendment Bill (No 2) 1994: paragraph 11.
5. Explanatory Memorandum to the Environment, Sport and Territories Legislation Amendment Bill (No 2) 1994: paragraph 141.
6. Privacy, Report No. 22 - Vol 1, Australian Law Reform Commission, Australian Government Publishing Service, Canberra, 1983: Summary of Recommendations at p.lii (paragraph 18), and paragraph 612 at p.276.
7. See the discussion on arrest and detention in Findlay, M., Odgers, S. and Yeo, S. Australian Criminal Justice, Oxford University Press, Melbourne, 1994: 48.
8. See Report on the Review of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 and Regulations, Australia's Protection and Conservation of Wildlife, Australian Government Publishing Service, Canberra, April 1992: xl- xli and Chapter 10.
9. Ibid, at p.158 and p. 159.
B. Bailey (06 2772434)
Bills Digest Service
Parliamentary Research Service 11 January 1995
This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.
Commonwealth of Australia 1995.
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Published by the Department of the Parliamentary Library, 1995.