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Great Barrier Reef Marine Park Amendment Bill 2001

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1998-1999-2000-2001 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

GREAT BARRIER REEF MARINE PARK AMENDMENT BILL 2001

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

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

Senator the Hon Robert Hill)

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE SENATE

TO THE BILL AS INTRODUCED

 

 

 

 

 

 

 



Table of Contents

 

GENERAL OUTLINE

2

Financial Impact Statement

NOTES ON INVIVIDUAL CLAUSES

3

12

SCHEDULE 1 - AMENDMENT OF ACTS

Great Barrier Reef Marine Park Act 1975

13

13

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



GREAT BARRIER REEF MARINE PARK AMENDMENT BILL 2001

 

GENERAL OUTLINE

 

The purpose of the Great Barrier Reef Marine Park Amendment Bill 2001 is to:

 

·         Make amendments to the Great Barrier Reef Marine Park Act 1975 to:

 

·       Clarify that geographic coordinates contained in the Act and instruments made under the Act are referenced to the Australian Geodetic Datum as defined in Gazette No. 84 of 6 October 1966, unless a contrary intention appears;

 

·       Increase the penalties for the discharge of oil and other hazardous materials into the Great Barrier Reef Marine Park (“the Marine Park”) in order to obtain a greater parity with other marine pollution legislation;

 

·       Increase the penalties for illegal fishing by providing that it is an offence to fish in the Marine Park contrary to the provisions of a zoning plan or contrary to the conditions of a permission issued by the Great Barrier Reef Marine Park Authority;

 

·       Create a new offence for the negligent operation of vessels in the Marine Park in circumstances where that operation results in, or is likely to result in, damage to the Marine Park;

 

·       Establish specific offences for ships operating in zones contrary to the provisions of a zoning plan and for ships operating in a zone contrary to the conditions of a permission issued by the Great Barrier Reef Marine Park Authority;

 

·       Create a new strict liability offence for persons who enter a zone contrary to the provisions of a zoning plan;

 

·       Make provision for the declaration of, or adjustment of, compulsory pilotage areas by means of Regulation; and

 

·       Provide that regulations are not inconsistent with a zoning plan if regulations further regulate or prohibit an activity which is allowed or permitted under a zoning plan.

FINANCIAL IMPACT STATEMENT

The proposed amendments will not have any significant financial impact.  Increased penalties for breaches of the Great Barrier Reef Marine Park Act 1975 might possibly result in a small increase in revenue but this is uncertain.

 

REGULATION IMPACT STATEMENT - SCHEDULE 1 ITEM 1

 

Amendment to Compulsory Pilotage Provisions within the Great Barrier Reef Marine Park Act 1975 and Regulations

Introduction

 

The object of the Great Barrier Reef Marine Park Act 1975 is to make provision for, and in relation to, the establishment, control, care and development of a Marine Park in the Great Barrier Reef Region.

 

The Great Barrier Reef Marine Park is currently comprised of a number of sections, which make up 98.5% of the Great Barrier Reef Region.

 

Within the Great Barrier Reef Marine Park:

·         vessels over 70 metres in overall length;

·         are a loaded oil;

·         chemical; or

·         liquefied gas carrier;

are required to carry a licensed pilot whilst traversing declared compulsory pilotage areas within the Marine Park. 

 

Compulsory pilotage areas have been declared for the inner shipping route north of Low Isles (north of Cairns) and Hydrographers Passage (offshore Mackay).

 

Hydrographers Passage is considered the most difficult shipping route within the Great Barrier Reef.  The passage is well surveyed, however it is a restricted water way with several turns, and is subjected to strong tidal currents.  The experience provided by a Pilot familiar with local conditions, significantly assists the safe passage of a ship through the area.

What is the problem being addressed

 

The boundary of the Hydrographers Passage compulsory pilotage area falls inside the outer shoals of the Great Barrier Reef. Therefore pilots may disembark a ship prior to that vessel exiting Hydrographers Passage and the ship may navigate the remaining length of the passage without the expert assistance of a pilot.

 

Some pilots are departing ships using Hydrographers Passage on outward voyages before the outer shoals of the Great Barrier Reef.  Ships are navigating the final section of Hydrographers Passage without the expert guidance of a pilot. This is considered to increase the risk of a ship grounding with the possibility of an oil spill occurring impacting the Marine Park.

 

Objectives

What are the objectives of the Government Action

 

To reduce the potential of the environmental and cultural values of the Great Barrier Reef Marine Park and World Heritage Area being impacted from a shipping accident and subsequent release of oil and other hazardous wastes. 

Options

 

What regulatory and non regulatory options for dealing with the problem were considered?

 

          Option One - Non regulatory approach

 

Industry self regulation has been trialed to meet the objectives of the proposed Act amendments. 

 

To this end the Australian Maritime Safety Authority designated a pilot boarding ground outside Hydrographers Passage and recommended that pilots disembark a ship only when the ship enters the boarding ground.  The boarding ground has been communicated to pilots via regular consultative meetings with pilot companies and is promulgated on navigation charts.

 

The designation of a pilot boarding ground has only been partially successful.  Pilot companies are still disembarking pilots prior to the outer shoals of Hydrographers Passage

 

          Option Two - Regulatory Approach

 

The declaration of all of the Hydrographers Passage as a compulsory pilotage will require that a ship retain a pilot on board for the entire transit as opposed to current situation where pilots may disembark prior to the outer shoals.  Current ship monitoring systems for the Great Barrier Reef enable authorities to monitor where pilots are disembarking a ship which provide a deterrent against a vessel allowing a pilot to disembark early. 

Impact Analysis

Who is likely to be affected?

There are currently three companies providing pilotage services to shipping within the Great Barrier Reef.  Not all of these companies disembark pilots prior to the designated pilot boarding ground.

 

Pilot companies who currently disembark pilots before the pilot boarding ground may incur extra costs in helicopter charges for the extra distance that the helicopter is required to travel.  These costs may be passed on to shipping companies employing the pilots however, the competition between the three existing companies is likely to keep any increases to a minimum.

 

Consultation

Pilotage companies, as described above, will be the main affected party by the proposed changes to the Hydrographers Passage compulsory pilotage area.  Pilotage companies have been informed of the proposed changes during regular consultative forums convened by the Australian Maritime Safety Authority.  The Australian Maritime Safety Authority has reported that the pilotage companies had no objections to the proposed extension.

 

Implementation and Review

The extension to Hydrographers Passage will be communicated to both the shipping industry and pilotage companies via:

-          Notice to mariners, official notices from AMSA which specify changes to Australian shipping rules and regulations, to enable mariners to update navigation charts;

-          Amendment of the Reef Guide, an explanatory guide for shipping using the Great Barrier Reef; and

          -           Eventual amendment of navigation charts.

 

Enforcement of the extension will be achieved through the monitoring of pilot movements on and off ships, via the ship reporting system. 

Conclusions

 

Ensuring pilots remain onboard vessels for the entire voyage through Hydrographers Passage can only be achieved through regulation.

 

It is recommended that regulatory action be taken to extend the Hydrographers Passage compulsory pilotage area to encompass the entire length of Hydrographers Passage.

 



REGULATION IMPACT STATEMENT - SCHEDULE 1 ITEM 5

 

Increased Penalties for Trawling and Fishing in Contravention of Great Barrier Reef Marine Park Zoning Plans, Management Plans, Regulations or Permit Conditions

Introduction

 

The Great Barrier Reef Marine Park (“the Marine Park”) is one of the world’s largest marine protected areas, encompassing a complex array of diverse ecosystems.  Because of its large size, diversity and uniqueness, the Great Barrier Reef is an internationally significant ecological resource.  As a consequence, it has World Heritage status.

 

The day-to-day management of fisheries in the Marine Park and World Heritage Area (“WHA”) is the responsibility of the Queensland fisheries management agency.  However, the Commonwealth, including through the Great Barrier Reef Marine Park Authority (“the Authority”), has a responsibility to ensure that any use of natural resources in the Marine Park is ecologically sustainable and consistent with the protection and conservation of world heritage values. 

 

The direct economic value of the commercial fishing industry in the Marine Park is estimated to be about $200 million, making it, in economic terms, the second most important activity after tourism.

 

The East Coast Trawl Fishery is Queensland’s largest commercial fishery in terms of number of operators, level and value of production, and area.  The fishery targets prawns, scallops, bugs and squid, with a wide range of other species taken incidentally.  Over 70% of the fishery area occurs within the Marine Park/WHA.  Total annual production is about 12,000 tonnes.  Excluding beam trawlers that operate in rivers and inshore areas, in 2000, some 780 commercial fishing vessels were eligible to operate within the trawl fishery, about 750 of which were able to operate in the Marine Park/WHA.

 

The Queensland Reef Line Fishery is the second most important fishery in the Marine Park/WHA and primarily targets fish such as coral trout and red emperor.  There are some 250 principal licenced commercial operations in the fishery, with in excess of a further 1500 commercial licence holders with much more limited access to reef fish stocks.  Commercial production is estimated to be between 3,000 and 4,000 tonnes per year.  Recreational fishers and charter operations also target the species taken in the commercial fishery.

 

A recent major research program on the impacts of trawling in the Far Northern Section of the Marine Park commissioned by the Authority and undertaken by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and the Queensland Department of Primary Industries (QDPI) found that trawling has major impacts on the seabed.  The study found that for every tonne of prawns taken by a trawler, 6-10 tonnes of bycatch is taken, most of which is discarded.  Each pass of a trawl net along the seabed removes 5-25% of seabed life.  The impact is cumulative, with 13 passes of a trawl net removing 70-90% of seabed life. The CSIRO/QDPI study also identified a high level of bycatch.  The study clearly demonstrated that trawling has an adverse impact on marine, particularly seabed, communities.  

 

The CSIRO/QDPI study also revealed that illegal trawling regularly occurred in a zone in which trawling was prohibited.  Up to 50 trawlers regularly trawl in one of the “green zones” in the Far Northern Section of the Marine Park.  Trawling in this zone is illegal.  Such zones were established to protect the natural resources of the Marine Park from the impacts of trawling and other fishing activities.

 

Following the release of the findings of the CSIRO/QDPI study, the Minister for the Environment and Heritage announced that it was his intention to have penalties for illegal trawling in the Marine Park increased to $1million.

 

What is the problem being addressed?

 

The issue addressed by the proposed Regulations is illegal trawling and fishing in the Great Barrier Reef Marine Park, for example, fishing in a zone in which that fishing is prohibited, or fishing in contravention of conditions.    

 

In the CSIRO/QDPI study, many trawlers were found to fish in the accessible sections of the Far Northern Section cross-shelf closure on a casual basis, but almost 50 vessels did so on a consistent basis.  The cross-shelf closure is a “green” or Marine National Park “B” Zone.  Such zones, together with other more highly protected zones, constitute only 4.5% of the total area of the Marine Park.  An estimated yearly total of 3260 days illegal trawling occurred in the cross-shelf closure, giving an estimate of 69 days illegal trawling per regular offender.  Such a level of non-compliance invalidates the objective of the cross-shelf closure and other similar zones, which is to maintain a pristine environment free from the impacts of fishing.

 

Current maximum penalties under the Great Barrier Reef Marine Park Act 1975 are inadequate to deter fishing in contravention of a Marine Park zoning plan. Present penalties may be considered by illegal fishers as “a cost of doing business” and, in many cases, are substantially less than the financial rewards that may be gained by contravening the zoning plan provisions.

 

What are the objectives of Government action?

 

To deter illegal fishing activities, particularly trawling, in Great Barrier Reef Marine Park zones in which the activities are excluded and thereby protect the Marine Park and its living resources from the adverse impacts of these activities.

 

Which options for dealing with the problem were considered?

 

Option 1 - The status quo

 

Given the level of illegal trawling found during the CSIRO/QDPI study, it is considered that the option of maintaining the status quo and keeping penalties at current levels will not address the level of illegal fishing.

 

Presently, there are no existing stand-alone offences of illegal trawling or fishing.  The scheme established under the Great Barrier Reef Marine Park Act 1975 provides for a series of omnibus offence provisions that relate to zoning plan contraventions.  The maximum penalty that may be applied under these offence provisions is 200 penalty units, i.e. $22,000 (currently a penalty unit = $110).

 

Option 2 - Regulatory Approach - amendments to the Act

 

To provide more of a deterrent for illegal fishing in protected Great Barrier Reef Marine Park zones, it is proposed to increase the penalties for illegal fishing by establishing a specific offence for trawling and fishing contrary to zoning plans, management plans, regulations or permit conditions be introduced. 

 

The proposed amendments to the Act will have the effect of increasing penalties for trawling and fishing contrary to zoning plans, management plans, regulations or permit conditions.  The maximum penalty will be 10,000 penalty units for bodies corporate and 2,000 penalty units for natural persons.

 

Increasing maximum penalties to a level at which the penalties are much greater than the financial rewards that may be gained by contravening zoning plans, management plans, regulations or permit conditions will provide a much greater disincentive to contravene zoning plans, management plans, regulations or permit conditions.

 

Who is likely to be affected?

 

The primary benefit of the proposed Regulations is greater protection of the natural resources and biodiversity of the Marine Park and WHA for the Australian and world community.  This has major flow-on benefits to the tourism industry, which is focused on providing people with an experience of the natural wonders of the Marine Park and WHA, and contributes substantially to the Queensland and Australian economies.  In recent years (1993/94-1997/98), the gross, annual, financial value of direct commercial tourism use of the Marine Park has been estimated to range from $411 million to $507 million. In addition, during the same period, the gross, annual, financial value of direct recreational fishing and boating use of the Marine Park has been estimated to range from $108 million to $120 million.

 

The proposed amendments will also benefit the commercial fishing industry.   The amendments will not have any adverse effect on those fishers who act lawfully - the majority of fishers.   Most commercial fishers wish to go about their business in an honest fashion in the knowledge that wrongdoers are discouraged from acting illegally.  Illegal fishing ultimately has an impact on the catch and income of fishers who obey the law.  The fishing industry is an important component of the Queensland and Australian economies.  Ecologically sustainable fisheries are essential to the long-term viability of the Queensland commercial fishing industry, which is often a major component of the economic and social fabric of many coastal towns.  In recent years (1993/94-1997/98), the gross, annual, financial value of direct commercial fishing use of the Marine Park has been estimated to range from $120 million to $150 million.

 

People who undertake illegal fishing activities in contravention of zoning plans, management plan, regulation or permit condition will be adversely affected by the proposed Regulations.  The maximum penalty that may be applied now is 200 penalty units ($22,000).  The proposed Regulations will have the effect of increasing penalties to 10,000 penalty units ($1,100,000) for bodies corporate and 2,000 penalty units ($220,000) for natural persons.

Implementation and review

 

The proposed amendments will be introduced under the Great Barrier Reef Marine Park Act 1975.

 

Any fines imposed as a result of the proposed amendments will be by a court of competent jurisdiction. A person against whom a fine is imposed will be able to appeal if the requirements of the relevant court are satisfied.

 

The Authority is investigating ways of improving surveillance of vessels operating in the Marine Park and WHA, particularly via the use of new technologies such as satellite tracking of trawlers fitted with automatic location communicators.  This vessel monitoring system (“VMS”) enables remote sensing of the location of a trawler.

Conclusion and recommended option

 

To help safeguard the natural resources of the Marine Park, an unambiguous message needs to be sent to illegal fishers who contravene Great Barrier Reef Marine Park zoning plans, management plans, regulations or permit conditions.  Current penalties are inadequate to deter such illegal fishing activities.

 

It is recommended that the maximum penalties for trawling and fishing contrary to zoning plans, management plans, regulations or permit conditions be increased to 10,000 penalty units for bodies corporate and to 2,000 penalty units for natural persons.

 

REGUALTION IMPACT STATEMENT - SCHEDULE 1 ITEM 9

 

Amendment of the Great Barrier Reef Marine Park Act 1975 - Penalties for the Negligent Operation of Vessels within the Marine Park

 

Introduction

 

The object of the Great Barrier Reef Marine Park Act 1975 (“the Act”) is to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region.

 

The Great Barrier Reef Marine Park is currently comprised of a number of sections, which make up 98.5% of the Great Barrier Reef Region.

 

Since 1995 there have been five (5) groundings of large merchant ships within the Great Barrier Reef Marine Park.  None of these incidents resulted in the loss of fuel or cargo, though significant structural damage was caused to four reefs.

 

In all five incidents it can be argued that negligent action led to the grounding occurring. 

 

What is the problem being addressed

 

The Act does not presently enable the Authority to take appropriate action against vessels that are involved in incidents, such as grounding or collision, which potentially or actually cause damage to the values of the Great Barrier Reef Marine Park.

 

Other Commonwealth legislation, in particular the Navigation Act 1912 , do not adequately address such incidents.  There have been no actions taken under the Navigation Act in response to groundings or collisions within the Great Barrier Reef.

 

Objectives

 

What are the objectives of the Government Action

 

To reduce the potential for damage to the environmental and cultural values of the Great Barrier Reef Marine Park and World Heritage Area being impacted from a shipping accident and subsequent release of oil and other hazardous substances.

 



Options

 

What options for dealing with the problem were considered

 There are two possible legislative models:

 

·       Provisions that focus upon the environmental outcome of an incident, similar to the Natural Resource Damage Assessment process utilised by environmental agencies in the United States.  Under such a system, penalties are calculated based on the amount of damage caused.

 

·       Provisions that focus on the act or omission that caused the incident; that is, the incident was the result of negligent operation of a vessel.

 

The second option is the approach recommended by the Authority.  The reasons for this approach include:

 

·       It’s simple.

 

·       It enables the offence to be prosecuted on a single element; that is, the issue is whether the incident was caused by the negligent act or omission of an individual or corporation; and

 

·        It potentially invokes section 61A of the Act enabling the Minister, where there is a reasonable belief that an offence has occurred against the Act, to order steps to be taken to repair or remedy environmental damage. A contravention of the provision may also invoke section 61B of the Act enabling the Commonwealth or the Authority to recover costs incurred in rectifying the act or omission constituting the offence.

Impact Analysis

 

Who is likely to be affected?

 

The normal and proper operation of shipping within the Great Barrier Reef will not be affected by the proposed legislation. The amendment does not require a higher standard of operation than is required under International and Australian law, nor will it impose additional costs on a shipping company that operates it’s ship properly.

 

Shipowners, masters or crew whom negligently operate a vessel within the Marine Park will be affected by the proposed legislation.  However it should be noted that will only be where their actions have been outside those standards required for the operation of a vessel internationally.

 

Consultation

 

The current Review of Great Barrier Reef Ship Safety and Accident Prevention Initiatives has included the proposed legislation within its Terms of Reference.  The Review is allowing stakeholders, including shipping companies, environmental groups, pilotage companies and general public to make submissions on the issue.

 

Implementation and Review

 

The Authority is negotiating a protocol with the Queensland Department of Transport for the enforcement of shipping offences within the Act.  The enforcement of the proposed legislation will fall within this framework.

 

Conclusions

 

The Act does not contain provisions that enable appropriate action to be taken against vessels that are involved in incidents that may potentially or actually cause serious environmental damage.

 

It is recommended that provisions be included within the Act enabling the Authority to prosecute instances of negligent operation of shipping.

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1 - Short Title

 

This clause provides the short title by which the Act may be cited.

 

Clause 2 - Commencement

 

This clause provides that the Act commences on the 28 th day after the day on which it receives Royal Assent.

 

Clause 3 - Schedule(s)

 

This clause makes it clear that any other Act specified in a Schedule to this Act is amended or repealed as set out in the relevant Schedule of this Act.  It also provides that Schedules may also contain other provisions that have effect according to their terms.

 

Clause 4 - Application provision - interpretation of geographic co-ordinates

 

This clause provides that the amendment made by item 3 of Schedule 1 of this Act, which inserts section 3B, applies to all specified instruments made under the Great Barrier Reef Marine Park Act 1975 regardless of whether the instruments were made before or after the insertion of section 3B.

 



Clause 5 - Application - offences

 

This clause makes it clear that Chapter 2 of the Criminal Code applies to offences against subsections 38A(2) and 38J(1) and (1B), and sections 38CA, 38CB, 38CC, 38M, 38MA, 38MB and 38MC of the Great Barrier Reef Marine Park Act 1975 if this Act commences before the commencement of the Environment and Heritage Legislation Amendment (Application of the Criminal Code) Act 2001.

 

SCHEDULE 1 - AMENDMENTS

 

Great Barrier Reef Marine Park Act 1975

 

Item 1 - Subsection 3(1) Definition of Compulsory Pilotage Area

 

This item substitutes the definition of the compulsory pilotage area in section 3(1) of the Great Barrier Reef Marine Park Act 1975 for a revised definition which takes account of the declaration of, and adjustment to, compulsory pilotage areas under the Great Barrier Reef Marine Park Regula tions 1983.

 

Item 2 - Subsection 3(1) Definition of Inner route

 

This item repeals the definition of inner route in section 3(1) of the Great Barrier Reef Marine Park Act 1975.

 

Item 3 - Section 3A

 

This item inserts a new section 3B into the Great Barrier Reef Marine Park Act 1975 which clarifies that geographic coordinates contained in that Act and instruments made under that Act are referenced to the Australian Geodetic Datum as defined in Gazette No. 84 of 6 October 1966 unless a contrary intention appears.

 

Item 4 - At the end of section 38A

 

This item inserts a new subsection 38A(2) into the Great Barrier Reef Marine Park Act 1975 which provides for a new strict liability offence if a person uses or enters a zone for a purpose other than a purpose that is permitted under the zoning plan that relates to the zone.  The maximum penalty for a contravention of this provision is 60 penalty units for a natural person and 300 penalty units for a body corporate.

 

This item also inserts a new subsection 38A(3) into the Great Barrier Reef Marine Park Act 1975 which clarifies that an offence under subsection (2) is an offence of strict liability.  The note to that subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability, there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Item 5 - After Section 38C

 

This item inserts a new section 38CA into the Great Barrier Reef Marine Park Act 1975 which effectively increases penalties for illegal fishing in the Great Barrier Reef Marine Park by creating a specific offence dealing with illegal fishing.  The maximum penalty is 2,000 and 10,000 penalty units for natural persons and bodies corporate respectively for contravention of the section. 

 

The mental fault element has been set at “intentionally” and “negligently”.  The use of the lower level of culpability of “negligently” is to require greater responsibility on the part of persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  “Intentionally” is included to ensure that those undertaking the act intentionally do not avoid sanctions. 

 

Subsection (2) defines key terms used in the offence provision, such as boat, fish, fishing, processing, and take.

 

This item also inserts section 38CB into the Great Barrier Reef Marine Park Act 1975.  This section provides details of the requirements that must be observed by a person who has permission to use or enter a zone for the purpose of fishing.  The maximum penalty for a contravention of this offence is 2,000 and 10,000 penalty units for a natural person and bodies corporate respectively. 

 

The mental fault element has been set at “intentionally” and “negligently”.  The use of the lower level of culpability of “negligence” is to require greater responsibility on the part of persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  “Intentionally” is included to ensure that those undertaking the act intentionally do not avoid sanctions.

 

Subsection (2) clarifies that strict liability applies to paragraph 38CB(1)(a).  The note to the subsection refers to clause 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability, there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Subsection (3) provides that fishing has the same meaning as in section 38CA.

 

This item also inserts section 38CC into the Great Barrier Reef Marine Park Act 1975.  This section provides that a person must comply with the conditions applicable to any permission or authority granted under section 38CB.  The maximum penalty for a contravention of this offence is 2,000 penalty units for a natural person and 10,000 penalty units for a body corporate.

 

Subsection (2) clarifies that the fault element for paragraph 38CC(1)(d) is negligence.  The note to that subsection refers to section 5.5 of the Criminal Code .  That section of the Criminal Code defines negligence.

 

Subsection (3) defines the term “engage in conduct” for the purposes of the section.

 

Item 6 - Subsection 38J(1)

 

This item repeals section 38J(1) of the Great Barrier Reef Marine Park Act 1975 and replaces it with a new provision which provides for a two-tiered offence for the discharge of waste into the Marine Park.

 

Subsection (1) outlines the first tier of the offence by making it an offence for a person to intentionally or negligently discharge waste into the Marine Park where that discharge is not authorised by permission of the Great Barrier Reef Marine Park Authority.  The maximum penalty for a contravention of this provision is 2,000 and 10,000 penalty units for natural persons and bodies corporate respectively. 

 

The mental fault element has been set at “intentionally” and “negligently”.  The use of the lower level of culpability of “negligently” is to encourage a greater assumption of responsibility by persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  “Intentionally” is included to ensure that those undertaking the act intentionally, do not avoid sanctions.

 

Consistent with existing legislation, subsection (1A) exempts the discharge of sewage from the operation of subsection (1).

 

Subsection (1B) outlines the second tier of the offence by making it an offence of strict liability for a person to discharge waste into the Marine Park.  The maximum penalty for a contravention of this provision is 500 and 2,500 penalty units for natural persons and bodies corporate respectively. 

 

Subsection (1C) clarifies that an offence under subsection (1B) is an offence of strict liability.  The note to the subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Consistent with existing legislation, subsection (1D) exempts the discharge of sewage from the operation of subsection (1B).

 

Item 7 - Paragraphs 38J(5)(c) and (d)

 

This item repeals paragraphs 38J(5)(c) and 38J(5)(d) of the Great Barrier Reef Marine Park Act 1975.

 

Item 8 - Subsection 38J(6)

 

This item repeals subsection 38J(6) of the Great Barrier Reef Marine Park Act 1975.

 

Item 8A - After Subsection 38L(3)

 

This item inserts new subsections 38L(3A) and (3B) into the Great Barrier Reef Marine Park Act 1975.

 

New subsection 38L(3A) provides that Regulations may prescribe measures for the management of the discharge of sewage from vessels in the Marine Park.  It also allows for the Regulations to create new offences relating to the discharge of sewage from vessels in the Marine Park, as long as those offences are not inconsistent with the Act. 

 

New subsection 38L(3B) provides that Regulations made under subsection (3A) may provide a maximum penalty for an offence against the Regulations not exceeding the maximum penalty for an offence against subsection (1), that is, a maximum penalty of 2,000 penalty units for a natural person and 10,000 penalty units for a body corporate.  However, the Regulations will not be able to provide penalties of imprisonment.

 

The new subsections 38L(3A) and (3B) do not limit the general regulation making power in section 66 of the Great Barrier Reef Marine Park Act 1975 which also provides a head of power to regulate the discharge of sewage.

 

Item 9 - After Section 38L

 

This item inserts section 38M into the Great Barrier Reef Marine Park Act 1975 which provides for a new offence in circumstances where a person operates a ship in a zone contrary to the provisions of a zoning plan and the person is negligent as to that fact.  Contravention of that provision attracts a maximum penalty of 2,000 and 10,000 penalty units for natural persons and bodies corporate respectively. 

 

The mental fault element has been set at “negligence” and “intention”.  The use of the lower level of culpability of “negligence” is to require greater responsibility on the part of persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  The fault element of “intention” is imported by virtue of section 5.6(1) of the Criminal Code and is attached to the physical conduct of operating the ship.  Section 5.6 of the Criminal Code relates to offences that do not specify fault elements.

 

Subsection (2) outlines the second tier of the offence by making it an offence of strict liability for the owner and operator of a ship if the ship is operated in a zone contrary to the provisions of the zoning plan.  The penalty for contravention of this provision is 500 and 2,500 penalty units for natural persons and bodies corporate respectively.

 

Subsection (3) clarifies that an offence under subsection (2) is an offence of strict liability.  The note to the subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Subsection (4) defines ship as having the same meaning as in the zoning plan concerned.

 

This item also inserts section 38MA into the Great Barrier Reef Marine Park Act 1975.  This new section requires permission requirements to be observed by a person who has permission to use or enter a zone for the purpose of shipping.  The maximum penalty for a contravention of this provision is 2,000 and 10,000 penalty units for natural persons and bodies corporate respectively.

 

The mental fault element has been set at “negligence” and “intention”.  The use of the lower level of culpability of “negligence” is to require greater responsibility on the part of the persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  The fault element of intention is imported by virtue of section 5.6(1) of the Criminal Code and is attached to the physical conduct of operating the ship.  Section 5.6 of the Criminal Code relates to offences that do not specify fault elements.

 

Subsection (2) states that strict liability applies to paragraph 38MA(1)(a).  The note to the subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Subsection (3) creates a new offence of strict liability for owners and operators in relation to permission requirements that must be observed by a person who has a permission to use or enter a zone for the purpose of shipping.  The maximum penalty for a contravention of this offence is 500 and 2,500 penalty units for natural persons and bodies corporate respectively.

 

Subsection (4) clarifies that an offence under subsection (3) is an offence of strict liability.  The note to the subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Subsection (5) defines ship as having the same meaning as the zoning plan concerned.

 

This item also inserts section 38MB into the Great Barrier Reef Marine Park Act 1975.  This section provides that a person must comply with the conditions applicable to any permission or authority referred to by section 38MA.  The maximum penalty for a contravention of this offence is 2,000 penalty units for a natural person and 10,000 penalty units for a body corporate.

 

Subsection (2) clarifies that the fault element for paragraph 38MB(1)(d) is negligence.  The note to that subsection refers to section 5.5 of the Criminal Code .  That section of the Criminal Code defines negligence.

 

Subsection (3) defines the term “engage in conduct” for the purposes of the section.

 

This item also inserts section 38MC into the Great Barrier Reef Marine Park Act 1975 which makes it an offence to operate a vessel in the Marine Park, in circumstances where that operation results in, or is likely to result in, damage to the Marine Park, and the person is negligent as to that fact. Given the potential damage to the Marine Park that would result from incidents such as groundings, collisions, and the structural failure of vessels, the penalties for contravention of this provision have been set at a maximum of 2,000 and 10,000 penalty units for natural persons and bodies corporate respectively.

 

The mental fault element has been set at “negligence” and “intention”.  The use of the lower culpability of “negligence” is to require greater responsibility on the part of persons undertaking activities in the Marine Park.  The mental element has been set at a level whereby the standard of care exhibited by the offender is judged by the standard that a reasonable person would have exercised in the circumstances.  The fault element of “intention” is imported by virtue of section 5.6(1) of the Criminal Code and is attached to the physical conduct of operating the vessel.

 

Subsection (2) outlines the second tier of the offence by making it an offence of strict liability for the owner and operator of a vessel if the vessel is operated in the Marine Park, in circumstances where that operation results in, or is likely to result in, damage to the Marine Park.  The penalty for contravention of this provision is 500 and 2,500 penalty units for natural persons and bodies corporate respectively.

 

Subsection (3) clarifies that an offence under subsection (2) is an offence of strict liability.  The note to this subsection refers to section 6.1 of the Criminal Code .  That section states that if a law that creates an offence provides that the offence is an offence of strict liability there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under section 9.2 is available.

 

Item 10 - Subsections 38N(1) and (2)

 

This item consequentially amends subsections 38N(1) and (2) to make it clear that the application of the section extends from section 38 to section 38MC inclusive.

 

Item 11 - Subsection 38N(7)

 

This item consequentially amends subsection 38N(7) to make it clear that the application of the subsection extends from section 38 to section 38MC inclusive.

 

Item 12 - After subsection 66(3)

 

This item inserts subsection 66(4) into the Great Barrier Reef Marine Park Act 1975 which defines the relationship between regulations and zoning plans by providing that regulations are not inconsistent with a zoning plan if regulations further regulate or prohibit an activity which is allowed or permitted under a zoning plan.

 

This item also inserts subsection 66(4A) into the Great Barrier Reef Marine Park Act 1975 which clarifies that nothing in subsection (4) allows a regulation to allow or permit an activity that is otherwise prohibited by the zoning plan concerned.

 

Item 13 - Schedule 2

 

This item repeals Schedule 2 of the Act.  Schedule 2 defines the boundaries of the compulsory pilotage areas and the inner route.