Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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
ISBN: 0642 459045
Table of
Contents
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GENERAL OUTLINE
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Financial Impact
Statement
NOTES ON INVIVIDUAL CLAUSES |
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SCHEDULE 1 – AMENDMENT OF
ACTS
Great Barrier Reef Marine Park Act 1975 |
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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.
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.
Amendment to Compulsory Pilotage Provisions within the Great Barrier Reef Marine Park Act 1975 and Regulations
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
Amendment of the Great Barrier Reef Marine Park Act 1975 – Penalties for the Negligent Operation of Vessels within the Marine Park
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.
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.
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.
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.
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.
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.
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.
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 28th 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
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 Regulations
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.