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Great Barrier Reef Marine Park Amendment Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

GREAT BARRIER REEF MARINE PARK AMENDMENT BILL 2017

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Environment and Energy,

the Honourable Josh Frydenberg MP)

 

 

 

 

 

 

 

 

 

 

 

 

 

 



GREAT BARRIER REEF MARINE PARK AMENDMENT BILL 2017

 

GENERAL OUTLINE

Purpose

1.     The Great Barrier Reef Marine Park Amendment Bill (No. 1) 2017 (the Bill) contains amendments to the Great Barrier Reef Marine Park Act 1975 (the Act) to rectify an unintended consequence of the sunsetting regime (established under Part 4 of Chapter 3 of the Legislation Act 2003 ), which applies to regulations made under the Act.

Background

2.     Subsection 39ZH(4) of the Act provides that if the regulations providing for giving effect to the enforcement provisions of a plan of management are repealed or otherwise cease to have effect, the plan of management is revoked.

 

3.     The Great Barrier Reef Marine Park Regulations 1983 (the Regulations) contain regulations giving effect to the enforcement provisions for the Shoalwater Bay (Dugong) Plan of Management 1997 , Cairns Area Plan of Management 1998 , Whitsundays Plan of Management 1998 and the Hinchinbrook Plan of Management 2004 . The Regulations are due to sunset 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 If the Regulations are repealed and then remade to prevent them from sunsetting, subsection 39ZH(4) will be triggered and the plans of management will be revoked.

 

4.     Plans of management are a critically important part of ensuring tourism use of the Great Barrier Reef Marine Park is best-practice and sustainable. If the current plans of management are revoked as part of the sunsetting process it would be necessary for the Great Barrier Reef Marine Park Authority (the Authority) to remake these plans. The making of a new plan of management is extremely resource intensive. The 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.

 

5.     The principal provisions contained in the Bill will resolve this problem so that plans of management will not be revoked when regulations giving effect to the enforcement provisions of the plans are repealed. The effect of the principal provisions of the Bill is that where there are no regulations in force giving effect to the enforcement provisions of a plan of management, the plan will be of no effect (rather than being revoked).

 

FINANCIAL IMPACT

6.     The Bill will have no significant financial impacts. The Bill 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.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Great Barrier Reef Marine Park Amendment Bill 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

Thepurpose of the Great Barrier Reef Marine Park Amendment Bill 2017 (the Bill) is to rectify an unintended consequence of the sunsetting regime (established under Part 4 of Chapter 3 of the Legislation Act 2003 ), which applies to regulations made under the Great Barrier Reef Marine Park Act 1975 (the Act) .

Subsection 39ZH(4) of the Act provides that if the regulations providing for giving effect to the enforcement provisions of a plan of management are repealed or otherwise cease to have effect, the plan of management is revoked.

The amendments made by the Bill will apply in circumstances where the regulations which give effect to the enforcement provisions of a plan of management are repealed so that, rather than the plan of management being revoked, the plan of management will be of no effect until such time as new regulations giving effect to the enforcement provisions of the plan are in force again. This will ensure that where regulations are remade to prevent them from sunsetting, plans of management will not need to be remade by the Authority.

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

It is acknowledged that regulations which give effect to the enforcement provisions of a plan of management may engage certain human rights and freedoms. For example, regulations which provide for criminal offence provisions for a contravention of a plan of management may engage certain criminal process rights. When such criminal offence provisions are read in conjunction with the enforcement provisions of a plan of management, these provisions may engage other human rights, such as the right to freedom of movement (for example, if access to a particular area of the Marine Park is prohibited) and the right to health (to the extent that enforcement provisions may contribute to achieving a healthy environment in the Marine Park).

Although the regulations giving effect to the enforcement provisions of a plan of management may engage and impact on human rights, the Bill itself does not change these impacts in any way. Rather, the Bill changes the status of a plan of management (and the enforcement provisions contained within it) in circumstances where regulations giving effect to the enforcement provisions of the plan are repealed.    

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.



 

NOTES ON CLAUSES

Preliminary

Clause 1         Short Title

1.     This clause provides for the short title of the Act to be the Great Barrier Reef Marine Park Amendment Act 2017 .

Clause 2         Commencement

2.     This clause provides for commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that the whole of the Bill will commence on the day after it receives Royal Assent.

Clause 3         Schedules

3.     This clause provides that legislation that is specified in a Schedule to the Bill will be amended or repealed as set out in the Schedule, and that any other item in a Schedule to the Bill has effect according to its terms.



 

Schedule 1 - Amendment of the Great Barrier Reef Marine Park Act 1975

Great Barrier Reef Marine Park Act 1975  

Item 1              Heading of section 39ZH

4.     This item repeals the heading of section 39ZH and replaces it with a new heading which reflects the changes made to the section itself by item 2 of the Bill. The new heading refers to the ‘freezing’ of plans of management in acknowledgement of the fact that plans of management will be ‘of no effect’ in the circumstances described in new subsection 39ZH(4). The reference to ‘revocation’ of plans of management has been maintained in the heading as new subsection 39ZH(4A) clarifies that plans of management may still be revoked while they are ‘of no effect’ because of subsection 39ZH(4).  

Item 2              Subsection 39ZH(4)

5.     This item repeals subsection 39ZH(4) and substitutes it with new subsections 39ZH(4) and (4A). The repealed subsection 39ZH(4) provides that if the regulations providing for giving effect to the enforcement provisions of a plan of management are repealed or otherwise cease to have effect, the plan of management is revoked. The new subsection 39ZH(4), if enacted, will ensure that a plan of management will not be revoked where there are no regulations in force giving effect to the enforcement provisions of the plan of management. Rather, a plan of management containing enforcement provisions will instead be ‘of no effect’ or essentially rendered inoperative in circumstances where there are no regulations in force providing for the giving effect to the enforcement provisions. 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. 

 

6.     The commencement of new regulations giving effect to enforcement provisions of a plan of management will have the effect of reviving the plan of management in circumstances where the plan of management was previously of no effect under subsection 39ZH(4) due to the absence of such regulations.

 

7.     The underlying policy intent behind the new subsection 39ZH(4) is to maintain the practical effect of the current subsection whilst ensuring that plans of management are not inadvertently revoked when regulations providing for giving effect to the enforcement provisions of plans of management are repealed and remade in order to prevent the regulations from sunsetting under Part 4 of Chapter 3 of the Legislation Act 2003 .

 

8.     Subsection 39ZH(4A) clarifies that in circumstances where a plan of management is of no effect due to subsection 39ZH(4), it can still be amended or revoked. 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.    

Item 3              At the end of section 39ZI

9.     This item inserts a new subsection 39ZI(4). This subsection clarifies that the Authority is not required to comply with a plan of management under subsections 39ZI(1), (2) or (3) in circumstances where the plan is of no effect under subsection 39ZH(4). It is not appropriate that the 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.