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Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 72, 2017-18 6 FEBRUARY 2018

Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017 Sophie Power Science Technology Environment and Resources Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 3

Review of the governance of GBRMPA ................................... 4

Committee consideration .................................................... 5

Senate Selection of Bills Committee........................................ 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Financial implications .......................................................... 5

Statement of Compatibility with Human Rights .................... 5

Parliamentary Joint Committee on Human Rights .................. 5

Key issues and provisions..................................................... 6

Revised governance arrangements ......................................... 6

Separation of Chair and CEO ................................................. 6

Establishment of a new statutory position of Chief Executive Officer ................................................................. 6

Delegations.......................................................................... 7

Board size .............................................................................. 8

Skills and expertise of members ............................................ 8

Retention of Indigenous, Reef tourism and Queensland Government representatives .......................... 9

Term limits ............................................................................. 9

Conflicts of interest ............................................................... 9

Termination ......................................................................... 11

Date introduced: 6 December 2017

House: Senate

Portfolio: Environment and Energy

Commencement:

Schedule 1 commences on the earlier of a single day to be fixed by Proclamation, or 12 months after Royal Assent.

Schedule 2 commences the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

February 2018.

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Other provisions ................................................................ 11

Powers of zoning plans and plans of management ............... 11

Concluding comments ....................................................... 12

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Purpose of the Bill The main purpose of the Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017 (the Bill) is to amend the Great Barrier Reef Marine Park Act 1975 (the GBRMP Act) to amend the governance arrangements for the Great Barrier Reef Marine Park Authority (GBRMPA).

Structure of the Bill The Bill has two schedules:

• Schedule 1 amends the GBRMP Act to revise the governance arrangements for the GBRMPA and also contains consequential amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and

• Schedule 2 amends the GBRMP Act in relation to the relationship between zoning plans, plans of management, regulations and other legislative instruments made under the GBRMP Act.

Background The Great Barrier Reef Marine Park Authority (GBRMPA) was established by the GBRMP Act to manage the Great Barrier Reef Marine Park, provide advice to the Minister, conduct research and provide educational, advisory and information services.1

The Great Barrier Reef Marine Park was first established in 1975 by the GBRMP Act to provide protection for the Great Barrier Reef region, which includes the world’s largest coral reef ecosystem.2 The GBRMP Act also establishes the GBRMPA, a Commonwealth authority responsible for the management of the Marine Park. It also provides a framework for planning and management of the Marine Park, including through zoning plans, plans of management and a system of permissions.3

GBRMPA is guided by a Board comprising a full-time Chairperson and between two and four other part-time members appointed by the Governor-General.4 Members are required to have ‘qualifications or extensive experience in a field related to the functions of the Authority’.5

GBRMPA is a non-corporate Commonwealth entity (NCE) for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).6 In the Commonwealth public sector, responsibility for the management of each Commonwealth entity is assigned under two regimes. First, legislation such as the Public Service Act 1999 (PS Act), or the specific legislation that establishes a particular agency, assigns responsibility for management functions (typically including staffing) to a CEO-type position. ‘Agency head’ is the term used in the PS Act to describe CEO-type positions such as a departmental secretary.7 The GBRMP Act currently provides that the Chairperson is the Head of the agency for the purposes of the PS Act.8

In addition, the PGPA Act uses the term ‘accountable authority’ to assign responsibility for reporting and accountability for the use and management of public resources.9 The GBRMPA Chairperson is also currently the ‘accountable authority’ for the purposes of the PGPA Act.10 However, note that for listed entities, the roles of agency head and accountable authority need not be performed by the same person.11

1. Section 7 of the GBRMP Act. 2. Great Barrier Reef Marine Park Authority (GBRMPA), ‘Facts about the Great Barrier Reef’, GBRMPA website. See also: GBRMP Act, Part V, especially section 30 (establishment of the Great Barrier Reef Marine Park).

3. GBRMPA, ‘How the Reef is managed’, GBRMPA website; see also GBRMP Act, Part II (establishment, functions and powers of the GBRMPA) and Parts V-VB (core provisions establishing the planning and management framework). 4. GBRMP Act, subsections 10(1)-(2). 5. GBRMP Act, subsection 10(6). 6. See Department of Finance, ‘Resource Management glossary - non-corporate Commonwealth entity (NCE)’, Department of Finance website,

last updated 10 November 2017. Note that other non-corporate Commonwealth entities (NCEs) with recent or proposed changes to governance arrangements are the Organ Transplant Authority (in 2016: see P Hamilton, ‘Australian Organ and Tissue Donation and Transplantation Authority Amendment (New Governance Arrangements) Bill 2016’, FlagPost, Parliamentary Library blog, 23 November 2016) and the National Capital Authority under the Australian Capital Territory (Planning and Land Management) Amendment Bill 2017. 7. PS Act, section 7. 8. GBRMP Act, paragraph 40(2)(b). 9. PGPA Act, section 12. 10. GBRMPA Act, paragraph 6(2)(b). 11. PGPA Act, section 12.

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Review of the governance of GBRMPA On 7 March 2017, the Minister for the Environment and Energy announced an independent review of governance of the GBRMPA (GBRMPA governance review).12 The review, led by Dr Wendy Craik, focused on the role and composition of GBRMPA’s Board in supporting the functions and powers of GBRMPA.13 The review’s objective was to ensure that GBRMPA’s governance arrangements remain ‘fit for purpose and continue to support the health and resilience of the Reef’.14

The review released a background paper for public consultation on 27 March 2017.15 Submissions were received from 16 stakeholders, and the review also held a number of meetings with stakeholders.16

The review’s report was released on 5 October 2017.17 The report noted that the Great Barrier Reef has seen ‘enormous change’ since the last review of governance of GBRMPA in 2006.18 This change includes growing pressures on the Great Barrier Reef including ‘the impacts of climate change, land based runoff impacting on water quality, coastal development and illegal fishing’.19 In addition, the review report observed that ‘the scale and complexity of the tasks undertaken by the Authority has increased significantly while overall staffing levels have remained constant and in recent years the number and level of officers in senior management support has diminished’.20

The review found that the current governance arrangements for the Authority ‘do not allow for strategic leadership or management commensurate with the requirements of the Authority’s functions and responsibilities’.21 The report therefore made 24 recommendations designed to strengthen GBRMPA’s governance arrangements, including:

• creating a separate Chairperson and Chief Executive Officer (CEO) for the Authority22

• increasing the size of the Board to seven members (from the current size of between three and five members)23

• retaining the current term limits for members of five years, but limiting reappointments to a maximum of two terms24

• strengthening the skills requirements for Board members, while maintaining existing provisions for Board members requiring an Indigenous person with experience in indigenous matters relating to the Marine Park, a member with tourism expertise and a member nominated by the Queensland government25

• reducing the potential for conflicts of interest among board members, including through legislated provisions requiring appointees not be a member of the governing body of a relevant interest group26 and

• providing the Governor-General with the power to terminate members for consistent underperformance.27

12. J Frydenberg (Minister for the Environment and Energy), GBRMPA governance review, media release, 7 March 2017. 13. Department of the Environment and Energy (DEE), ‘Independent review of governance of the Great Barrier Reef Marine Park Authority’, DEE website. 14. W Craik, Review of governance of the Great Barrier Reef Marine Park Authority, report, DEE, Canberra, July 2017, p. 18. 15. DEE, ‘Consultation: independent review of governance of the Great Barrier Reef Marine Park Authority’, DEE website. 16. Ibid; Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 18. 17. J Frydenberg (Minister for the Environment and Energy), Release of Great Barrier Reef Marine Park Authority governance review, media

release, 5 October 2017. 18. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 9. The last review was chaired by then Secretary of the Department of the Environment and Heritage, Mr David Borthwick. See D Borthwick, Review of the Great Barrier Reef Marine Park Act

1975: review panel report, Canberra, 2006. 19. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 18 and see further pp. 19-24, 33-4. 20. Ibid., pp. 24-5. 21. Ibid., p. 11. 22. Ibid., p. 49 (recommendation 1). 23. Ibid., pp. 53-4 (recommendation 10). 24. Ibid., p. 54 (recommendation 11). 25. Ibid., p. 53 (recommendations 7-9). 26. Ibid., p. 56 (recommendation 13) and see also pp. 58-9 (recommendation 20). 27. Ibid., p. 57 (recommendation 17).

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The Government accepted all the recommendations in its response to the report, published in November 2017.28 This Bill implements those recommendations that require amendments to the GBRMP Act, while other recommendations can be implemented through administrative measures.

Committee consideration Senate Selection of Bills Committee The Senate Selection of Bills Committee recommended that the Bill not be referred to any committee for inquiry and report.29

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not yet considered the Bill.

Policy position of non-government parties/independents At the time of writing, non-government parties and independents do not appear to have commented on the Bill.

Position of major interest groups While key stakeholders have not specifically commented on the Bill itself at the time of writing, some indicated their views in submissions made to the GBRMPA governance review.30

In particular, most stakeholders expressed support for the separation of the functions for the Chair and CEO role into two positions. 31 For example, the Association of Marine Park Tourism Operators (AMPTO) indicated that it has been lobbying for many years for the roles of CEO and Chair of GBRMPA to be separated.32 Similarly, the Australian Marine Sciences Association suggested that, as the demands on the Great Barrier Reef have increased, ‘the position of Chair/CEO has become overstretched and is unable to perform both roles’.33

Similarly, many stakeholders also supported an increase in the size of the board, and the retention of current requirements for board members with backgrounds in marine park tourism, an Indigenous person and a representative of the Queensland Government.34

Financial implications According to the Explanatory Memorandum, the Bill will have no financial impact.35

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.36

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not yet considered the Bill.

28. J Frydenberg (Minister for the Environment and Energy), New arrangements for the Great Barrier Reef Marine Park Authority, media release, 30 November 2017; see also DEE, Government response to the review of the governance of the Great Barrier Reef Marine Park Authority, November 2017.

29. Senate Selection of Bills Committee, Report, 15, 2017, The Senate, Canberra, 7 December 2017. 30. Stakeholder submissions are available at DEE, ‘Consultation: independent review of governance of the Great Barrier Reef Marine Park Authority’, DEE website. 31. See, for example, Australian Marine Conservation Society (AMCS), Submission to the Independent Review of Governance of the Great Barrier

Reef Marine Park Authority, n.d., p. 2.; Australian Marine Sciences Association, Submission to the Independent Review of Governance of the Great Barrier Reef Marine Park Authority, 7 April 2017, p. 1; Queensland Tourism Industry Council, Submission to the Independent Review of Governance of the Great Barrier Reef Marine Park Authority, 10 April 2017, p. 1; Queensland Resources Council, Submission to the Independent Review of Governance of the Great Barrier Reef Marine Park Authority, 2 May 2017, p. 2. 32. Association of Marine Park Tourism Operators (AMPTO), Submission to the Independent Review of Governance of the Great Barrier Reef

Marine Park Authority, 8 March 2017, p. 2. 33. Australian Marine Sciences Association, Submission, op. cit., p. 1. 34. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 38. 35. Explanatory Memorandum, Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017, p. 3. 36. The Statement of Compatibility with Human Rights can be found at pages 4-6 of the Explanatory Memorandum to the Bill.

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Key issues and provisions Revised governance arrangements Schedule 1 of the Bill gives effect to the recommendations of the GBRMPA Governance review by making various amendments to the governance arrangements of GBRMPA.

Separation of Chair and CEO Currently, GBRMPA is guided by a Board comprising a full-time Chairperson and between two and four other part-time members appointed by the Governor-General.37 The Chairperson is currently the ‘agency head’ for the purposes of the PS Act and the ‘accountable authority’ of GBRMPA for the purposes of the PGPA Act.38

The PGPA Act sets out requirements for the governance, reporting and accountability of Commonwealth entities and Commonwealth companies, and for their use and management of public resources. An ‘accountable authority’ of a Commonwealth entity is generally the person (or group of persons) responsible for, and with control over, the entity’s operations.39 The PGPA Act vests various powers and responsibilities for the financial management of a Commonwealth entity in the hands of the accountable authority, and sets out a series of duties that the accountable authority must meet. These duties include establishing and maintaining systems relating to risk and control, encouraging cooperation with others and minimising administrative requirements that are imposed on other parties, and keeping relevant ministers informed.40

In short, this means the Chairperson is accountable for the operations and performance of the staff of GBRMPA and, as the only full-time Board member, is also effectively the CEO of GBRMPA, ‘although this position is not specified in the Act’.41

As noted earlier in this Digest, the review found that ‘separating the roles of the Chairperson and CEO would serve to enhance public confidence’ in GBRMPA ‘through the diversification of leadership’.42 In addition, most stakeholders support the separation of the Chairperson and CEO roles. Recommendation 1 of the review therefore proposed that the position of the Chairperson and CEO should be separated.

After considering various options for governance models for public sector entities, the review further recommended that the newly-established CEO of GBRMPA should be the ‘accountable authority’ for the purposes of the PGPA Act and the ‘agency head’ under the Public Service Act (recommendations 3 and 4).43

Establishment of a new statutory position of Chief Executive Officer Item 25 implements this recommendation by establishing a new statutory position of CEO of GBRMPA in proposed section 39ZJ. The role of the CEO is set out in proposed section 39ZK, which provides that the CEO is responsible for the day-to-day administration of GBRMPA.

Under proposed subsection 39ZK(4), the Authority (in practice, the GBRMPA Board) may give written directions to the CEO about the performance of CEO’s responsibilities, but not in relation to the CEO’s functions or powers under the PGPA Act or PS Act.44 The CEO must comply with such written directions, but that direction is not legislative instrument.45

Proposed section 39ZL provides that the CEO will be appointed by the Governor-General on a full-time basis for a period of up to five years. Under proposed subsection 39ZL(4), an individual must not hold office as the CEO for a continuous period over ten years.46 The CEO’s remuneration will be determined by the Remuneration

37. GBRMP Act, subsections 10(1)-(2). 38. GBRMPA Act, paragraphs 6(2)(b) and 40(2)(b). 39. PGPA Act, section 12. 40. PGPA Act, sections 15-19. 41. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 29.

42. Ibid., p. 47. 43. Ibid., pp. 42-9, 51. 44. See GBRMPA Act, section 8B (as amended by items 7-9 of Schedule 1 of the Bill) and Note to proposed subsection 39ZK(4). 45. Proposed subsections 39ZK(5)-(6). 46. This does not include any period when they were acting as the CEO, see proposed subsection 39ZL(5). Acting CEO appointments are provided

for in proposed 39ZM.

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Tribunal, or if there is no Tribunal determination in place, the remuneration will be as prescribed by the Minister by legislative instrument.47 The CEO’s allowances will be prescribed by the Minister by legislative instrument.48

Proposed section 39ZS provides that the CEO may resign by giving the Governor-General a written resignation.

Under proposed section 39ZT, the Governor-General may terminate the CEO’s appointment on certain grounds. This includes for ‘misbehaviour’; if the CEO is unable to perform the duties of office because of physical or mental incapacity; bankruptcy; or if the Minister is satisfied that the CEO’s performance has been unsatisfactory for a significant period. The Explanatory Memorandum states that these grounds are ‘consistent with similar statutory appointments’. 49 The Bill inserts a similar provision for termination of members of the GBRMPA Board for unsatisfactory performance, and these provisions are discussed further below (under the heading ‘termination’).

Proposed section 39ZU provides that the Minister may determine any other additional terms and conditions under which the CEO holds office. The Explanatory Memorandum states that this is ‘to provide for streamlined administration of the appointment, which is made by the Governor-General’, but ‘does not provide the Minister the power to direct the CEO in the exercise of his or her powers, or performance of his or her functions or duties’.50

A range of other amendments in Schedule 1 are consequential upon the establishment of the CEO and reflect the transfer of responsibilities from the Chairperson to the CEO.51 For example, item 4 inserts proposed subparagraph 6(2)(c)(ia) to provide that the CEO is an official of the Authority.

One of the more substantive consequential amendments, item 3, amends paragraph 6(2)(b) to appoint the CEO as the ‘accountable authority’ of GBRMPA for the purposes of the PGPA Act.

Paragraph 6(2)(b) of the GBRMP Act currently provides that the Chairperson is the ‘accountable authority’ of GBRMPA for the purposes of the PGPA Act.

Item 3 implements recommendation 3 of the GBRMPA Governance review by amending paragraph 6(2)(b) to specify that the newly-established CEO of GBRMPA will be the accountable authority for the purposes of the PGPA Act. The Explanatory Memorandum states:

This aligns with the CEO’s responsibility for leading and managing the agency, including its human and financial resources, and for implementing the Authority’s strategy and directions, as recommended by the Review. 52

Similarly, item 26 amends section 40 of the GBRMP Act to specify that the newly-established CEO of GBRMPA will be the ‘agency head’ for the purposes of the PS Act (rather than the Chairperson).

Delegations In addition, items 31 and 33 amend existing provisions in section 48 of the GBRMP Act allowing the Chairperson to sub-delegate certain powers or functions to Authority staff. The amended provisions instead allow the CEO to sub-delegate those powers or functions. Item 30 also inserts proposed subsection 48(1AA) to enable the CEO to delegate a power or function to a member of the staff of the Authority working as SES or Executive Level 2 employee. Item 32 inserts proposed subsection 48(3A) to require the delegate to comply with any directions of the CEO in exercising those powers and functions.

This appears to be broadly consistent with the GBRMPA Governance review, which expressed concern that although GBRMPA has extensive delegations in place, there was ‘no guidance to support staff in the exercise of those delegations’. The review noted the importance of the Board having ‘strong oversight of decisions and the

47. Proposed subsections 39ZN(2) and (4). The Remuneration Tribunal will also determine the CEO’s recreation leave entitlements, while the Minister may grant other leave of absence for the CEO, see proposed section 39ZP. 48. Proposed subsections 39ZN(2) and (4). 49. Explanatory Memorandum, op. cit., p. 14. It is also broadly in line with the provisions for termination of other members of the Authority, see

GBRMP Act, section 16, as amended by item 19 of Schedule 1 of the Bill. 50. Ibid.

51. See, for example, items 4-9, 28 and 34-38 of Schedule 1. In addition, the entirety of Part 2 of Schedule 1 makes consequential amendments to the Environment Protection and Biodiversity Conservation Act 1999 to change references in that Act to the Chairperson of GBRMPA to the Chief Executive Officer of GBRMPA. 52. Explanatory Memorandum, op. cit., p. 9.

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decision making framework’. In particular, recommendation 21 proposed that ‘delegation instruments should be supported by guidance on how and when delegations should be exercised’.53

Board size The Bill also contains amendments to increase the size of the GBRMPA Board to seven members, as recommended by the GBRMPA Governance review.

Subsection 10(1) of the GBRMP Act currently provides that the Authority consists of a Chairperson and at least two, but no more than four, other members. Item 10 of Schedule amends this subsection to provide that the Authority will consist of a Chairperson, the CEO and five other members. The total number of members of the Authority will be seven.

Under subsection 10(2), members are currently appointed by the Governor-General, with the Chairperson being appointed as a full-time member and the other members being appointed as part-time members. Item 11 proposes to repeal and replace subsection 10(2) to provide that members will continue to be appointed by the Governor-General, and that all members other than the CEO, will be appointed on a part-time basis. This is consistent with recommendation 10 of the GBRMPA Governance review.54

Currently, under subsection 17(3) of the GBRMP Act, two members constitute a quorum at a meeting of the Authority. To reflect the increased Board size, item 22 amends this subsection to increase the quorum requirements, providing that four members constitute a quorum.

Skills and expertise of members The GBRMPA Governance review also recommended strengthening the skills requirements for Board members, while maintaining existing provisions for Board members requiring an Indigenous person with experience in indigenous matters relating to the Marine Park, a member with tourism expertise and a member nominated by the Queensland government.55

Section 10 of the GBRMPA Act currently provides for the membership of the Authority. In particular, subsection 10(6) broadly states that ‘a member shall be a person with qualifications or extensive experience in a field related to the functions of the Authority’. In addition, under subsection 10(6A) of the GBRMPA, at least one member must be an Indigenous person with knowledge of, or experience concerning, indigenous issues relating to the Marine Park. Similarly, under subsection 10(6B), at least one member must have knowledge of, or experience, in the tourism industry associated with the Marine Park.

Item 13 of Schedule 1 proposes to repeal these subsections and replace them with new provisions specifying the skills requirements of members of the Authority. Proposed subsection 10(6) provides that, to be eligible for appointment as a part-time member of the Authority, the Governor-General must be satisfied that the person is suitably qualified for appointment because of significant knowledge of, or significant experience concerning, one or more of the following fields:

(a) science (including one or more fields related to climate change, marine science, coastal ecology, fisheries, social sciences or engineering)

(b) natural resource management

(c) Indigenous matters relating to the Marine Park

(d) the tourism industry associated with the Marine Park

(e) business or industry

(f) resource economics

(g) public sector governance

53. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 59. 54. Ibid., pp. 53-4. 55. Ibid., pp. 51-3 (recommendations 7-10).

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(h) regulation

(i) education or communications or

(j) strategic management.

The same eligibility requirements will apply to members appointed as acting members under subsection 15(3) of the GBRMP Act.56

Retention of Indigenous, Reef tourism and Queensland Government representatives Proposed subsection 10(7) retains the requirement for at least one member to be an Indigenous person with knowledge or experience in Indigenous matters relating to the Marine Park, while proposed subsection 10(8) retains the requirement for at least one member to have expertise in the tourism industry associated with the Marine Park. The existing requirement under subsection 10(3) for at least one part-time member to be a person appointed on the nomination of the Queensland Government is retained. These provisions reflect recommendation 7 of the GBRMPA Governance review, which suggested that the Board should continue to reflect Indigenous, Reef tourism and Queensland Government expertise.

Term limits Under section 11 of the GBRMP Act, members are appointed for up to five years, with no limit on reappointments. The GBRMPA Governance review found that this five year appointment term was appropriate and should be retained. However, the review observed that ‘a limit on reappointments would allow the board to get greater benefit from a range of perspectives, while maintaining broad stability’.57 The review therefore recommended that reappointments be limited to a maximum of two terms (recommendation 11).58

Item 14 of Schedule 1 gives effect to this recommendation by repealing and replacing section 11 to provide that the maximum period of appointment for a member must not exceed five years. Proposed subsection 11(2) then provides that a person must not hold office as a part-time member for a continuous period exceeding ten years.59

Conflicts of interest The GBRMPA Governance review found that there is ‘some scepticism amongst stakeholders regarding the strength of the Authority’s existing conflict of interest management provisions’.60 This scepticism may have stemmed from concerns raised in 2013 about alleged conflicts of interest of two GBRMPA Board members (at the time) who had links to mining and resource companies. The concerns led then Minister for the Environment, Greg Hunt, to order an inquiry into those allegations.61 The inquiry subsequently found that the allegations of conflict of interest were 'unfounded' and that the members had appropriately disclosed their financial and personal interests and at ‘no time breached their public duty in regard to their position’.62

While the GBRMPA Governance review found ‘no evidence’ to support stakeholder scepticism, it did suggest ‘there is scope to further manage conflicts’.63 Recommendation 13 of the GBRMPA Governance review proposed that ‘the potential for conflict of interest amongst board members should be reduced by legislated provisions requiring appointees not be a member of the governing body of a relevant interest group’.64 The review noted,

56. Item 16 of Schedule 1, which inserts proposed subsection 15(4). 57. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 54. 58. Ibid.

59. Note that under item 46 in Part 3 of Schedule 1, this 10 year limit will apply to existing members of the Authority, even if they were appointed prior to the commencement of these amendments. 60. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 59. 61. See further C Duffy, ‘Conflict of interest threatens Great Barrier Reef’, ABC 7.30 report, 29 October 2013; G Hunt (Minister for the

Environment), Doorstop with Ken O’Dowd MP, Member for Flynn, Marine Service Wharf, Gladstone Marine : visit to Gladstone; Arrow LNG Project; CCA draft report; GBRMPA Board; Abbot Point, transcript, 30 October 2013, p. 3; see also, for example, J Swan, ‘Hunt orders inquiry over reef business links’, The Age, 31 October 2013, p. 4. 62. G Hunt (Minister for the Environment), Great Barrier Reef Marine Park Authority conflict of interest inquiry, media release, 24 February 2014; see also ‘Great Barrier Reef Marine Park Authority’s Tony Mooney and Jon Grayson cleared of conflict of interest’, ABC News online, 16 April 2014. 63. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 59. 64. Ibid., pp. 55-6; see also pp. 58-9 and recommendation 20.

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for example, that ‘[t]his approach is already adopted by the Australian Fisheries Management Authority and the Murray-Darling Basin Authority’.65

Item 13 of Schedule 1 implements recommendation 13. Proposed subsection 10(9) provides that a person is not eligible for appointment as a member of the Authority if they are a member of the governing body of a relevant interest group. Similarly, item 18 inserts a proposed section 15B which provides that a part-time member must not be a member of the governing body of a relevant interest group. The Explanatory Memorandum states that this ‘will reduce the potential for conflicts of interest in the conduct of the Authority’s functions and promote

public confidence in the Authority’s independence’.66

Under proposed paragraph 10(10)(b), a relevant interest group is one that is directly involved in advocating about the management of the Marine Park, or a group that represents people who use the Marine Park for commercial purposes. As the Explanatory Memorandum states:

The Authority manages the Marine Park, including through issuing permits and developing zoning plans and plans of management which affect what particular individuals or organisations are permitted to do within the Marine Park. It would be inappropriate for a person to be a member of the Authority if that person’s work or public occupation involves lobbying or advocating policy or actions to governments that are clearly intended for specific benefits for themselves, or their organisation.

67

However, note that under proposed paragraph 10(10)(a), the person must be involved in the management of the entity. In other words, an individual will still be eligible for appointment ‘if they are merely a member of a relevant interest group’.68

Item 18 of Schedule 1 also addresses the issue of potential conflicts of interest. It does this by inserting proposed section 15A which provides that a part-time member must not engage in any paid work that, in the Minister’s opinion, conflicts or could conflict with the proper performance of his or her duties.

The Bill also contains provisions to deal with potential conflicts of interest in relation to the proposed new CEO. In particular, proposed section 39ZL(6), inserted by item 25, similarly provides that a person is not eligible for appointment as the CEO of GBRMPA if, at the time of the appointment, the person is a member of the governing body of a relevant interest group (as outlined in proposed subsection 10(10))69. Under proposed section 39ZR, once appointed, the CEO must not be a member of the governing body of a relevant interest group during their tenure as CEO. Proposed section 39ZQ also provides that the CEO must also not engage in any other paid work without the Minister’s approval. As the Explanatory Memorandum states, these provisions are designed to ‘reduce the potential for conflicts of interest and promote public confidence in the independence of the Authority’.70

These provisions will be in addition to existing provisions in the GBRMPA Act and the PGPA Act dealing with conflicts of interest. This includes, for example, section 16A of the GBRMP Act and section 29 of the PGPA Act which oblige members to disclose relevant material personal interests in relation to the affairs of GBRMPA.

The GBRMPA Governance Review also noted that Food Standards Australia New Zealand, for example, ‘requires members excuse themselves from voting on any matter for which they are conflicted but allows them to contribute their expertise to relevant deliberations’.71 Recommendation 20 of the review suggested that the GBRMPA board consider similar processes for members in relation to the management of conflicts of interests.72

65. Ibid., p. 55; see also, for example, Water Act 2007, paragraph 178(2)(b). 66. Explanatory Memorandum, op. cit., p. 10. 67. Ibid., p. 11. 68. Ibid.

69. See also item 1 of Schedule, which inserts a new definition of ‘member of the governing body of a relevant interest group’ into subsection 3(1) of the GBRMPA Act. 70. Explanatory Memorandum, op. cit., p. 14. 71. Craik, Review of governance of the Great Barrier Reef Marine Park Authority, op. cit., p. 59. 72. Ibid.

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Termination Section 16 of the GBRMP Act currently provides for the circumstances under which the Governor-General may terminate the appointment of members of the Authority. The GBRMPA Governance review observed that the Minister is unable to manage significant failures of performance, as section 16 currently provides that members can only be terminated for ‘misbehaviour or physical or mental incapacity’, the Chairperson engaging in unapproved paid employment, unapproved absences, bankruptcy, and failure to declare conflicts.73 Recommendation 17 of the review therefore recommended that the Governor-General should have the power to terminate members, on the recommendation of the Minister, if they are consistently underperforming.

Item 19 implements this recommendation by repealing and replacing section 16. Proposed section 16 retains the current grounds for termination of members of the Authority, and adds conflicts of interest and consistent underperformance as grounds for termination (see proposed paragraphs 16(2)(c), (d) and (e)). This is similar to the new provision providing the grounds for termination of the new CEO as outlined above.

The GBRMPA Governance review suggested that ‘many Acts’ (such as the Water Act 2007 (Cth)) provide for members to be terminated if they are not performing their role satisfactorily’.74 However, provisions allowing underperformance as grounds for removal of Board members do not appear to be prevalent in other relevant Commonwealth legislation. It also appears to be a fairly broad discretion open to subjective interpretation, and Parliament may therefore wish to consider whether this provision is appropriate in the case of GBRMPA Board members.

Other provisions Powers of zoning plans and plans of management Schedule 2 of the Bill makes technical amendments to the GBRMP Act with the aim of ‘clarifying the relationship between zoning plans, plans of management and regulations made under the GBRMP Act; or other legislative instruments’.75

As noted earlier in this Digest, the GBRMP Act provides a framework for planning and management of the Marine Park, including through zoning plans, plans of management and a system of permissions.

The whole Marine Park is covered by the Great Barrier Reef Marine Park Zoning Plan 2003, which provides for a range of ecologically sustainable recreational, commercial and research opportunities and for the continuation of traditional activities:

Zoning helps to manage and protect the values of the Marine Park that people enjoy. Each zone has different rules for the activities that are allowed, the activities that are prohibited, and the activities that require a permit. Zones may also place restrictions on how some activities are conducted. 76

In addition, certain areas of the Marine Park also have specific management plans in place:

Plans of management are generally prepared for intensively used, or particularly vulnerable groups of islands and reefs, and for the protection of vulnerable species or ecological communities. Plans of management complement Marine Park zoning by addressing issues specific to an area, species or community in greater detail than can be accomplished by the broader reef-wide zoning plans.

77

Zoning plans are made under Division 2 of Part V of the GBRMP Act, while plans of management are made under Part VB. In addition, section 66 of the GBRMP Act enables the Governor-General to make regulations, not inconsistent with the Act or with a zoning plan, prescribing all matters required or permitted by the Act (or necessary or convenient to be prescribed for carrying out or giving effect to the Act).

73. Ibid., p. 57. 74. Ibid.; see also Water Act, paragraph 189(2)(b). 75. Explanatory Memorandum, op. cit., p. 18.

76. GBRMPA, ‘Zoning’, GBRMPA website. 77. GBRMPA, ‘Plans of management’, GBRMPA website. The objects of plans of management are set out in section 39Y of the GBRMP Act. Plans of management are legislative instruments but are not subject to sunsetting, see GBRMP Act, section 39ZF; and Legislation (Exemption and Other Matters) Regulation 2015, regulation 12, table item 32(c).

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Schedule 2 of the Bill amends the GBRMP Act with the aim of ‘clarifying the relationship between zoning plans, plans of management and regulations made under the GBRMP Act; or other legislative instruments’.78

It does this, first, through item 1 which inserts proposed subsection 35DA(1) which provides that a zoning plan may provide in relation to a matter by providing that the regulations, or any other legislative instrument, provide in relation to that matter. Proposed subsection 35DA(2) then provides that, to avoid doubt, a reference to a zoning plan in Part V of the GBRMPA Act does not include a reference to regulations, or another legislative instrument, covered by new subsection 35DA(1). The Explanatory Memorandum states that the purpose of this section is to ensure that the procedural requirements in Part V for zoning plans are not interpreted as applying to regulations made under the GBRMPA Act.79

Item 2 inserts proposed section 39ZFA which makes similar provision in relation to management plans and the regulations or other legislative instruments.

Concluding comments The Bill primarily makes largely uncontroversial amendments to the governance arrangements of GBRMPA which were broadly supported by stakeholders during the GBRMPA Governance review.

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78. Explanatory Memorandum, op. cit., p. 18. 79. Ibid.