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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
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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
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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.
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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.
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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
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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
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