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Environment Legislation Amendment (Protecting Dugongs and Turtles) Bill 2019

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2016-2017-2018-2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

ENVIRONMENT LEGISLATION AMENDMENT (PROTECTING DUGONGS AND TURTLES) BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Hinch)

 



ENVIRONMENT LEGISLATION AMENDMENT (PROTECTING DUGONGS AND TURTLES) BILL 2019

 

OUTLINE

 

The Environment Legislation Amendment (Protecting Dugongs and Turtles) Bill 2019 (the Bill) amends:

 

·          The Great Barrier Reef Marine Park Act 1975  (Cth) (the GBRMP Act ) to require that agreements between the Great Barrier Reef Marine Park Authority (the Authority) and community groups include consideration of the protection and conservation of turtles and dugong species.

 

·          The Great Barrier Reef Marine Park Regulations 1983 (Cth) (the GBRMP Regulations) to require that:

o    a traditional use of marine resource agreement ( TUMRA) must specify by what methods a protected animal species is proposed to be harvested; and

o    such agreements are only accredited and/or funded by the Authority when it is satisfied that the population of a protected species will be able to sustain any proposed harvesting and that the proposed harvesting methods are humane.

 

·          The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) and the GBRMP Act to provide additional protection for turtles, dugong and other listed threatened species by increasing the custodial penalties for aggravated offences.

 

·          The Australian Border Force Act 2015 , Australian Federal Police Act 1975 , EPBC Act and GBRMP Act to require Commonwealth agencies to report on their investigation and enforcement of existing offence provisions in their annual reports.

 

Threats facing dugong and turtles

 

Dugongs and turtles play an extremely important role in the ecological balance of Australia’s marine life, particularly throughout the Great Barrier Reef. The populations of both dugongs and marine turtles have declined significantly over the last 15 years. This decline is due to cumulative pressures such as ocean acidification, habitat destruction, pollution, commercial fishing and other human impacts that include Indigenous hunting and illegal poaching. Dugongs and marine turtles are both long-lived, slow breeding and migratory species; meaning recovery from population decline can take many years. While threats facing dugong and turtles like habitat destruction have been measured, there is little information regarding the number of dugongs and turtles killed or injured by poachers and indigenous owner groups under the Native Title Act 1993 . In recent years, local communities have raised credible allegations of animal cruelty committed by those hunting dugongs and turtles. Such allegations include the use of high-power motorboats, machetes and other cruel methods which maim animals and leave them suffering before dying. This has continued despite the tripling of financial penalties for poaching, illegal commercial trade and illegal transportation of listed threatened species within the Great Barrier Reef Marine Park in 2015.

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.         Clause 1 is a formal provision specifying the short title of the Bill.

 

Clause 2: Commencement

 

2.         The table in this clause sets out when the provisions of the Bill commence.

 

Clause 3: Schedules

 

3.         Each Act or instrument specified in a Schedule to this Bill is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Bill has effect according to its terms.

 

Schedule 1: Arrangements with community groups and TUMRAs

 

Amendments relating to arrangements with community groups (item 1)

 

4.         Under section 39ZA of the GBRMP Act, the Authority may enter into an agreement or arrangement with a community group that has a special interest in an area of the Marine Park to jointly manage that area.  Schedule 1 to the Bill amends section 39ZA to require that any agreement or arrangement made between the Authority and a community group must consider how the community group will ensure the recovery and continued protection and conservation of species listed in paragraph 39Y(b), including but not limited to dugong, turtles and leatherback turtles. If the Authority is not satisfied that the community group has met this requirement, the Authority may refuse to approve an agreement or arrangement, request the community group provide additional information in relation to compliance with the requirement or terminate an agreement or arrangement.

 

5.         These amendments will ensure that any agreements or arrangements made between the Authority and community groups directly considers the impact such an agreement or arrangement may have on dugong and turtle populations.

 

Amendments relating to TUMRAs (items 2 to 8)

 

6.         TUMRAs are formal agreements developed by Traditional Owner groups and accredited by the Authority. These agreements describe how Traditional Owner groups intend to manage their take of natural resources (including protected species), as well as how Traditional Owner groups intend to manage, monitor and comply with the TUMRA. TUMRAs do not affect the native title interests of Traditional Owner groups. To be accredited a TUMRA must, in addition to other requirements, describe the animal species proposed to be harvested and, if those species include one or more protected species, how many specimens of each protected species is proposed to be harvested. The GBRMP Regulations do not require Traditional Owner groups, when applying to have a TUMRA accredited, to describe or report on the methods by which protected species will be harvested. Similarly, the Authority is not required to consider whether the methods by which traditional harvesting will be undertaken are humane and whether the populations of the protected species that are proposed to be harvested will be able to sustain such harvesting.

 

7.         Schedule 1 to the Bill amends the GBRMP Regulations to require Traditional Owners to describe the method (or methods) by which the harvesting of protected species is proposed to be undertaken, as well how such information will be monitored and reported under the TUMRA.

 

8.         Additionally, Schedule 1 imposes a new requirement on the Authority to consider whether the methods by which a protected species will be harvested proposed by a Traditional Owner group are humane. In accrediting a TUMRA, the Authority must be satisfied that the relevant population of each protected species will be able to sustain any proposed harvesting, and that the proposed harvesting of each protected species will be undertaken in a humane manner. Under these amendments, harvesting of a protected species is considered to be undertaken in a humane manner if it is done in a way that causes the animal as little pain as reasonable.

 

9.         Under Schedule 1 to the Bill, the Authority will also be prevented from providing any development funding for a TUMRA unless it is satisfied that the welfare and conservation of protected species will form an integral part of the development process. Similarly, the Authority will be prevented from providing funding to implement a TUMRA unless satisfied that the welfare and conservation of protected species is likely to benefit from the provision of the funding.

 

10.       Under these amendments, regulations made relating to TUMRAs will need to be approved by resolution of each House of the Parliament before coming into effect.

 

11.       These amendments will provide additional protection for protected species populations (including dugong and turtles) by ensuring that TUMRAs are developed with express consideration of the impact that any proposed harvesting will have on protected species populations, and that the methods by which protected species are harvested under a TUMRA are conducted in accordance with animal welfare standards. These amendments will also assist in measuring the impact that traditional hunting is having on protected species populations.

 



 

Schedule 2: Increased penalties

 

Amendments relating to increased penalties (items 1 to 10)

 

12.       The amendments in Schedule 2 to the Bill increase the custodial penalties for aggravated offences in the EPBC Act and GBRMP Act that relate to the protection of listed marine species (including dugong and turtles) to 5 years’ imprisonment. The Environment Legislation Amendment Act 2015 previously increased financial penalties for various offences and civil penalty provisions related to listed dugong and turtles, but did not increase custodial penalties. These amendments will deter persons from committing offences by imposing increased custodial sentences in respect of the illegal killing, injuring, taking, trading, keeping or moving of listed marine species.

 

Schedule 3: Reporting requirements

 

Amendments relating to reporting requirements (items 1 to 6)

 

13.       Schedule 3 amends various Acts to require the Commonwealth agencies that are responsible for investigating and enforcing existing offence provisions within the EPBC Act and GBRMP Act to report annually on the actions they have taken in respect of those provisions that relate to dugongs and turtles. These amendments will assist conservation efforts for dugong and turtle populations by providing additional accountability for responsible agencies to actively enforce existing offence provisions, and will provide consistent data on how such offences are threatening dugong and turtle populations, as well as any relevant factors that may be impacting on the enforcement of these provisions.

 



Statement of Compatibility with Human Rights

 

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

 

Environment Legislation Amendment (Protecting Dugongs and Turtles) Bill 2019

 

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

 

The Bill amends:

·          The GBRMP Act to require that agreements between the Authority and community groups include consideration of the protection and conservation of turtles and dugong species.

·          The GBRMP Regulations to require that a TUMRA specifies the methods by which harvesting of protected species will be undertaken and that TUMRAs will only be accredited and/or funded by the Authority when it is satisfied that the population of a protected species will be able to sustain any proposed harvesting and that the proposed harvesting methods are humane.

·          The EPBC Act and the GBRMP Act to increase the custodial penalties for aggravated offences related to protected species.

·          The Australian Border Force Act 2015 , Australian Federal Police Act 1975 , EPBC Act and GBRMP Act to require Commonwealth agencies to report on their investigation and enforcement of existing offence provisions in their annual reports.

 

Human rights implications

 

The Bill does not limit any absolute rights. The Bill does not discriminate on the grounds of race. Accredited TUMRAs do not affect the rights of traditional peoples to harvest dugong and turtles for the purposes of domestic, non-commercial communal needs, as preserved by section 211 of the Native Title Act 1993 (Cth). Thus, requiring Traditional Owner groups to specify proposed harvesting methods in applying to have a TUMRA accredited by the Authority does not affect native title rights or interests.

 

Human rights engaged by the Bill

 

The right to the presumption of innocence

 

Article 14(2) of the International Covenant on Civil and Political Rights (the ICCPR) protects the right of everyone charged with a criminal offence to be presumed innocent until proved guilty according to law.  The Bill does not create new offence provisions under either the EPBC or GBRMP Act. Rather, the Bill increases the custodial penalties for aggravated offences under these Acts.

 

The Bill engages the right to the presumption of innocence because it increases penalties for offences that apply strict liability to certain physical elements. Strict liability offences engage Article 14(2) of the ICCPR because it removes the requirement for the prosecution to prove fault. The application of strict liability creates the potential risk that a person may be found guilty of an offence in circumstances where the person did not know or was reckless as to the fact that the animal was a member of the relevant species. However, in such circumstances, a defendant may still raise a defence of honest and reasonable mistake. This could be seen to mitigate the risk that a person would be found guilty of an aggravated offence where they did not know or were reckless to the fact they had injured or killed a dugong, marine or leatherback turtle.

 

The EPBC Act contains several strict liability offences. These offences are an important part of ensuring a robust environmental regulatory framework that protects the environment and biodiversity, as well as areas of significance, such as the Great Barrier Reef Marine Park. Within the context of the Marine Park, strict liability offences for the illegal killing, injuring, taking, trading, keeping or moving of listed marine species are necessary and appropriate as a deterrent to contraventions of offence provisions within the EPBC Act and GBRMP Act.

 

The limitation these strict liability offences impose on the presumption of innocence are proportionate due to the strong interest the public has in protecting and conserving listed marine species’ populations. A strict enforcement regime is necessary due to the vulnerable conservation status of these species, and the effectiveness of this regime would be reduced if prosecution had to prove that an offending person knew or was reckless as to the fact that the animal was a member of the relevant species.

 

Conclusion

 

The Bill is compatible with human rights because it does not limit any absolute rights and to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Senator Hinch