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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Great Barrier Reef Marine Park Amendment (Authority Governance and
Other Matters) Bill 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for the Environment and Energy,
the Hon Josh Frydenberg MP)
Great Barrier Reef Marine Park Amendment (Authority Governance and Other
Matters) Bill 2017
GENERAL OUTLINE
The Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters)
Bill 2017 (the Bill) amends the Great Barrier Reef Marine Park Act 1975 (the GBRMP Act)
to change the governance size and structure of the Great Barrier Reef Marine Park Authority
(the Authority) and strengthen requirements for appointment and termination of members.
The amendments will strengthen the strategic capability and capacity of the Authority to
respond to challenges facing the Great Barrier Reef Marine Park (the Marine Park).
The Authority's key functions are to advise and make recommendations to the Minister in
relation to the care and development of the Marine Park; develop zoning plans and plans of
management; manage the Marine Park collaboratively with the Queensland Government;
conduct research; and provide education, advisory and information services.
In 2017, an independent Review of Governance of the Authority was conducted by
Dr Wendy Craik AM (the Review). The Review was released on 5 October 2017.
The Review found the current governance arrangements do not allow for sufficient strategic
leadership or management commensurate with the requirements of the Authority's functions
and responsibilities. The scale and workload of the Chairperson position had become too
large for a single person. The legislated size of the Authority and background requirements of
the majority of members limited the capacity to provide local, national and international
perspectives and diversity of expertise required to address the issues affecting the Great
Barrier Reef (the Reef).
The Bill amends the GBRMP Act to implement the governance arrangements recommended
by the Review and accepted by the Government. The key provisions of the Bill are:
Replace the existing full-time Chairperson position with a part-time Chairperson and
full-time Chief Executive Officer (the CEO). The CEO will be the 'accountable authority'
of the agency for the purposes of the Public Governance, Performance and
Accountability Act 2013, and the 'agency head' for the purposes of the Public Service Act
1999.
Establish one additional part-time member position, bringing the total membership of the
Authority to seven (including the Chairperson and CEO).
Strengthen requirements for the appointment and termination of members by: specifying
the general skills required; limiting the number of consecutive terms served by an
individual member; providing for termination of members by the Governor-General for
underperformance; and reducing the potential for conflicts of interest.
Additionally the Bill makes a minor technical amendment to the Act to clarify the
relationship between the suite of legislation underpinning the functions of the Authority.
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FINANCIAL IMPACT STATEMENT
The Bill has no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS - PART 3 HUMAN
RIGHTS (PARLIAMENTARY SCRUTINY) ACT 2011
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Great Barrier Reef Marine Park Amendment (Authority Governance and Other
Matters) Bill 2017
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 Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters)
Bill 2017 amends the Great Barrier Reef Marine Park Act 1975 (GBRMP Act) to change the
size and structure of the Great Barrier Reef Marine Park Authority, and strengthen
requirements for appointment and termination of members.
The Bill will separate the existing full-time Chairperson position into a part-time Chairperson
and full-time Chief Executive Officer, and establish one additional part-time member
position. The Bill will specify the general skills required of members, allow an individual to
be appointed for a maximum of 10 consecutive years, provide for termination of a member by
the Governor-General for underperformance, and reduce the potential for conflicts of interest
in the conduct of the Authority's functions.
Additionally the Bill will make minor technical amendments to clarify the relationship
between the suite of legislation underpinning the functions of the Authority. The Bill includes
application and transitional provisions with retrospective application to preserve the effect of
actions previously taken under Marine Park legislation and confirm the validity of rights and
liabilities of persons that have arisen under Marine Park legislation.
The amendments will strengthen the strategic capability and capacity of the Authority to
respond to challenges facing the Marine Park.
Human rights implications
The Bill engages the following rights:
(a) The right to equality and non-discrimination in Article 26 of the International Covenant
on Civil and Political Rights (ICCPR)
(b) The right to take part in public affairs and elections in Article 25 of the ICCPR
(c) The right to a fair trial in Article 14 of the ICCPR
(d) The prohibition on retrospective criminal laws in Article 15 of the ICCPR
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The right to equality and non-discrimination
Article 26 of the ICCPR guarantees that all persons are equal before the law and are entitled
to the equal protection of the law.
The Bill retains an existing provision in the GBRMP Act that one of the members of the
Authority must be an Indigenous person with experience in Indigenous matters relating to the
Marine Park. This promotes the representation of Indigenous perspectives in the performance
of the Authority's functions. Aboriginal and Torres Strait Islander peoples are the Traditional
Owners of the Great Barrier Reef area and have a continuing connection to their land and sea
country.
The right to take part in public affairs and elections
Article 25 of the ICCPR ensures that citizens have the right and opportunity to take part in
the conduct of public affairs, to vote and to be elected at elections and to have equal access to
public service.
The Bill limits eligibility of individuals to serve as a member of the Authority by requiring
that an individual not be a member of the governing board of a relevant interest group for the
duration of their appointment. This is defined as a group 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. However, an individual is eligible for
appointment if they are merely a member of a relevant interest group and are not involved in
the management of that entity.
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, which is primarily comprised of commercial
interests operating in the Marine Park.
The purpose of this measure is to reduce the potential for conflicts of interest in the conduct
of the Authority's functions and promote public confidence in the Authority's independence.
Right to a fair trial
The right to a fair trial is protected in Article 14 of the ICCPR. Article 14 is aimed at ensuring
the proper administration of justice, which includes the right to equality before the courts and
tribunals and the right to a fair and public hearing by a competent, independent and impartial
tribunal established by law.
The application and transitional provisions in the Bill preserve the effect of actions
previously taken under Marine Park legislation, and confirm the validity of rights and
liabilities of persons that have arisen under Marine Park legislation. The right to a fair trial
will not be prejudiced by these provisions. The Bill promotes legal certainty and addresses
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what may have been a technical defect in relevant pre-commencement GBRMPA instruments
by ensuring that the rights and liabilities of all persons are maintained.
Prohibition on retrospective criminal laws
The prohibition on retrospective criminal laws is contained in Article 15 of the ICCPR.
Article 15 provides that no one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time when the criminal offence was committed.
The application and transitional provisions in the Bill do not infringe the prohibition on
retrospective criminal laws. The Bill addresses what may have been a technical defect,
associated with the prescription of conduct in Marine Park legislation. To the extent that there
was any defect, the Bill confirms that the content of the relevant prohibited conduct is exactly
that which was on the face of the relevant instruments. That is, there would have been no
change to the rules of conduct that users of the Marine Park needed to comply with in the
past.
The Bill includes an additional protection, in the form of a 'historic shipwrecks' clause,
ensuring that any person whose property rights would be acquired contrary to section
51(xxxi) of the Constitution, is entitled to receive compensation on just terms from the
Commonwealth.
Conclusion
This Bill is compatible with human rights as it promotes the right to equality and
non-discrimination, the right to a fair trial and the extent to which it limits the right to take
part in public affairs and elections is reasonable, necessary and proportionate. The Bill does
not infringe the prohibition on retrospective criminal laws.
Minister for the Environment and Energy, the Hon Josh Frydenberg MP
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NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Bill, when enacted, to be cited as the Great Barrier Reef
Marine Park Amendment (Authority Governance and Other Matters) Act 2017.
Clause 2 - Commencement
2. This clause provides for Schedule 1 of the Act to commence on a day to be fixed by
Proclamation, up to 12 months after the Act receives the Royal Assent, and for Schedule
2 of the Act to commence the day after the Act receives Royal Assent.
3. The delay in commencement of Schedule 1 of the Act provides time to recruit
appropriately qualified individuals for the positions of Chairperson and CEO for
appointment by the Governor-General. This process is expected to take approximately six
months, however additional time has been allowed in case there are unexpected delays.
4. The current full-time Chairperson position is filled by an acting appointment which will
cease when a new Chairperson is appointed. Upon commencement of Schedule 1 of the
Act this position will be separated into a part-time Chairperson and full-time CEO. It is
therefore important to ensure the current Chairperson can continue to undertake both of
these functions until the new appointments are made.
5. Aligning commencement of Schedule 1 of the Act with the appointment of the new
Chairperson and CEO would provide continuity for the Authority and support a smooth
transition to the new governance arrangements.
Clause 3 - Schedules
6. This clause provides that legislation that is specified in a Schedule to the Act will be
amended or repealed as set out in the Schedule, and that any other item in a Schedule to
the Act has effect according to its terms.
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Schedule 1 - Authority governance
Part 1 - Main amendments
Great Barrier Reef Marine Park Act 1975
Background
7. Under the new governance model, the Authority will consist of seven members:
a. an independent part-time Chairperson of integrity, national credibility and standing
who would not be perceived as representing a Reef interest group;
b. a full-time CEO; and
c. five other part-time members including continuation of at least one member who must
be an Indigenous person with significant knowledge or experience in Indigenous
matters relating to the Marine Park and at least one member who must have
significant knowledge or tourism expertise in the Marine Park. One member will also
continue to be nominated by the Queensland Government.
8. This governance structure will ensure the Authority has access to skills and expertise
commensurate with its functions.
9. The Chairperson will provide strategic direction, guidance and oversight of the Authority
and guide engagement with government, industry and other stakeholders on major issues
affecting the Reef and its management. The Chairperson will lead meetings of the
Authority, consider the performance of the Authority, and act to rectify any deficiencies.
10. The CEO will be responsible for leading and managing the agency, including its human
and financial resources, and implementing the Authority's strategy and directions. The
CEO will be the 'accountable authority' for the purposes of the Public Governance,
Performance and Accountability Act 2013 and 'agency head' for the purposes of the
Public Service Act 1999.
Item 1 - Subsection 3(1), and Item 2 - Subsection 3(1) (definition of part-time member)
11. These items insert additional defined terms into subsection 3(1) of the GBRMP Act to
reflect the measures enacted by the Bill.
a. 'CEO' is the Chief Executive Officer of the Authority established by the Bill
b. 'member of the governing body of a relevant interest group' has the meaning given
by subsection 10(10) (see paragraphs 21 to 23).
c. 'paid work' defines the characteristics of paid work for the purposes of sections 15A
(which deals with other paid work for part-time members) and 39ZQ (which deals
with outside employment for the CEO).
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d. 'part-time member' is amended to mean a member appointed under subsection 10(2)
and (2A) (namely, the Chairperson and other members, excluding the CEO) (see
paragraph 16).
Item 3 - Paragraph 6(2)(b) and Item 4 - After subparagraph 6(2)(c)(i)
12. These items amend the GBRMP Act to specify that the CEO will be the 'accountable
authority' and an official of the Authority for the purposes of the Public Governance,
Performance and Accountability Act 2013. 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.
Item 5 - Subsection 7A(8), Item 6 - Subsection 8(1) (note), Item 7 - Section 8B
(heading), Items 8 and 9 - Section 8B
13. These items amend the GBRMP Act to reflect the transfer of responsibilities from the
Chairperson to the CEO as the 'accountable authority' for the purposes of the Public
Governance, Performance and Accountability Act 2013 and 'agency head' for the
purposes of the Public Service Act 1999, and the CEO's responsibility for leading and
managing the agency and implementing the Authority's strategy and directions.
14. The sections amended by these items relate to: provision of assistance to other institutions
and persons; powers of the Authority; and the CEO not being subject to direction by the
Authority on certain matters.
Item 10 -Paragraph 10(1)(b)
15. This item adds the CEO as a member of the Authority and specifies that there will be five
other members in addition to the Chairperson and CEO. The total number of members of
the Authority shall be seven. This will provide for greater diversity of perspectives and
expertise, and enable formation of sub-committees to deal with specific issues.
Item 11 - Subsection 10(2)
16. This item specifies that members of the Authority shall be appointed by the Governor-
General, and that all members other than the CEO shall be appointed on a part-time basis.
The Review recommended the Authority consist of a part-time Chairperson, a full-time
CEO, and five other part-time members, all appointed by the Governor-General.
Item 12 - Subsection 10(3)
17. This item retains the existing provision that one part-time member is to be appointed on
the nomination of the Queensland Government, and clarifies that this is a part-time
member other than the Chairperson. This item does not prevent the part-time member
appointed on the nomination of the Queensland Government from being appointed as the
acting Chairperson in accordance with section 15(1).
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Item 13 - Subsections 10(6) to (8)
18. The Review found that access to additional perspectives would assist the Authority in
making decisions and providing advice to meet the contemporary challenges facing the
Reef. The Review also found that having a leadership group comprised of individuals
with appropriately diverse and strategic skills would provide constant guiding leadership
and direction to an agency dealing with unprecedented situations.
19. This item specifies the general skills required of members of the Authority. To be eligible
for appointment a member must have significant knowledge or experience in 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 (which includes parks 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;
h. regulation;
i. education or communications (which is communications for the purposes of
education and knowledge sharing); and
j. strategic management (which includes scenario planning).
20. The amendments to these subsections retain the existing requirements in the GBRMP Act
that one member must be an Indigenous person with expertise in Indigenous matters
relating to the Marine Park and that at least one member must have expertise in the
tourism industry associated with the Marine Park.
21. The new subsections 10(9) and 10(10) provide that a person is not eligible for
appointment as a part-time member of the Authority if they are a member of the
governing body of a relevant interest group. This is an ongoing eligibility requirement for
the whole of the member's term. This requirement 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.
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22. A relevant interest group is one that is directly involved in advocating views in relation to
the management of the Marine Park, or a group that represents people who use the
Marine Park for commercial purposes. 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.
23. An individual is eligible for appointment if they are merely a member of a relevant
interest group and not involved in the management of that entity.
Item 14 - Sections 11 to 14
24. This item limits the number of consecutive terms served by an individual member by
specifying that a person may not hold office as a part-time member for a continuous
period exceeding 10 years. The maximum period for a single term of appointment is five
years. An appointment would usually be for five years. Any time served as an acting
member of the Authority does not count towards the maximum continuous service of
10 years.
25. The purpose of this amendment is to allow for rotation of members with different skill
sets and knowledge, which will help to avoid entrenchment of certain views and
regulatory capture by affected stakeholders. It will allow the Authority to benefit from a
range of perspectives, while maintaining broad stability.
26. This item updates section 12 of the GBRMP Act regarding remuneration of part-time
members to reflect current drafting practices. The provisions currently in the
GBRMP Act are retained.
27. This item updates section 13 of the GBRMP Act to allow part-time members to be
granted a leave of absence. The Minister may grant a leave of absence to the Chairperson.
The Chairperson may grant a leave of absence to other part-time members, and must
notify the Minister if such a period is greater than 3 months.
28. This item updates section 14 of the GBRMP Act regarding resignation of part-time
members to reflect current drafting practices. The provisions currently in the
GBRMP Act are retained.
Item 15 - Subsections 15(1) and (3) (notes)
29. This item updates references to sections of the Acts Interpretation Act 1901 for rules that
apply to acting appointments.
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Item 16 - After subsection 15(3)
30. This item applies the same eligibility requirements for members in subsection 10(6) and
(9) of the GBRMP Act to acting members. Specifically, that the person has significant
knowledge or experience in one or more required skills and the requirement to not be a
member of the governing body of a relevant interest group.
Item 17 - Subsection 15(5)
31. This item repeals a subsection regarding resignation of an acting appointment which is
now addressed by section 33A(1)(d) of the Acts Interpretation Act 1901.
Item 18 - After section 15
32. This item reduces the potential for conflicts of interest to arise for part-time members of
the Authority and promotes public confidence in the independence of the Authority.
33. This item inserts section 15A which requires any other paid work undertaken by a part-
time member to not conflict with the proper performance of their duties as a member of
the Authority. For example, if a person received income for undertaking activities which
are regulated by the Authority, it would not be appropriate for them to make decisions
relating to the regulation of such activities.
34. This item also inserts section 15B which restates the provision in section 10(10) of the
GBRMP Act, that a part-time member must not be a member of the governing body of a
relevant interest group. This ensures that a member is continually subject to these
requirements throughout the period of their appointment.
Item 19 - Section 16
35. This item specifies the grounds on which the Governor-General may terminate the
appointment of a part-time member. It updates text to reflect current drafting practices
and adds conflicts of interest and consistent underperformance as grounds for
termination, at the Governor-General's discretion.
Item 20 - Subsections 16A(1) and (3)
36. This item updates this section relating to disclosure of interests to refer to part-time
members only.
Item 21 - After section 16A
37. This item provides that the Minister may determine additional terms and conditions on
which a part-time member holds office. This is to enable streamlined administration of
the appointment, which is made by the Governor-General. This item does not provide the
Minister the power to direct a member in the exercise of their powers or performance of
functions or duties.
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Item 22 - Subsection 17(3)
38. This item specifies that four members constitute a quorum at the meeting of the
Authority. It is appropriate for the majority of members to be present when the Authority
is making decisions.
Item 23 - Subsections 17(6) to (10)
39. This item clarifies that decisions of the Authority are to be made by a majority vote of
members present and voting, with the presiding member to have a deliberative vote, and a
casting vote in the event of an equality of votes. It also requires the Authority to keep
minutes of its meetings.
Item 24 - At the end of Part III
40. This item provides that, subject to the requirements of the GBRMP Act, the Authority
may regulate its meetings as it considers appropriate.
Item 25 - Before section 40
41. This item inserts a new section 39ZJ into the GBRMP Act which establishes the position
of the Chief Executive Officer of the Authority.
42. A new section 39ZK describes the CEO's role. The role of the CEO will be to lead and
manage the agency, including its human and financial resources, and be responsible for
implementing the Authority's strategy and directions. The CEO will be the 'accountable
authority' for the purposes of the Public Governance, Performance and Accountability
Act 2013 and 'agency head' for the purposes of the Public Service Act 1999. The
Authority will continue to have responsibility for implementation of the GBRMP Act,
supported by the CEO and staff of the Authority.
43. The Authority may give written directions to the CEO about the performance of the
CEO's responsibilities, but not in relation to the CEO's performance of functions or
exercise of powers under the Public Governance, Performance and Accountability Act
2013 or the Public Service Act 1999. The CEO must comply with any such direction.
Subsection 39ZK(6) has been included to assist readers to understand that a direction
given by the Authority to the CEO under subsection 39ZK(4) is not a legislative
instrument within the meaning of section 8 of the Legislation Act 2003.
44. Under the new section 39ZL, the CEO will be appointed by the Governor-General on a
full-time basis, for up to five years. An individual may not hold office as CEO for a
continuous period exceeding 10 years, excluding any period served as acting CEO.
45. Under the new section 39ZM, the Minister may appoint a person to act as the CEO during
a vacancy in the office of CEO, when the CEO is absent from duty or from Australia, or
for any reason is unable to perform the duties of the office.
46. Under the new section 39ZN, remuneration for the CEO will be determined by the
Remuneration Tribunal. If the Remuneration Tribunal does not make a determination on
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remuneration for the CEO, the Minister may prescribe remuneration and allowances by
legislative instrument. Recreation leave entitlements for the CEO will be determined by
the Remuneration Tribunal. The Minister may grant a leave of absence for the CEO.
47. As for the other members, under the new section 39ZR, the CEO must not be a member
of the governing body of a relevant interest group. This is to reduce the potential for
conflicts of interest and promote public confidence in the independence of the Authority.
The CEO must also not engage in any other paid work without the Minister's approval.
48. Under the new section 39ZT, the CEO may resign by giving the Governor-General a
written resignation. This item also sets out the grounds for termination of the CEO by the
Governor-General which include consistent underperformance, membership of the
governing body of a relevant interest group, and other grounds consistent with similar
statutory appointments.
49. Under the new section 39ZU, the Minister may determine additional terms and conditions
on which the CEO holds office. This is to provide for streamlined administration of the
appointment, which is made by the Governor-General. This item 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.
Item 26 - Paragraphs 40(2)(a) and (b)
50. This item establishes the CEO as the 'agency head' for the purposes of the Public Service
Act 1999. 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.
Item 27 - Before section 46
51. This item creates a new Division to increase readability.
Item 28 - After paragraph 47(1)(a)
52. This item adds the CEO as a person to whom the Authority may delegate any or all of its
powers or functions under the GBRMP Act. The provision for the Authority to delegate
powers or functions to the Chairperson has been retained to provide flexibility.
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Item 29 - Section 48 (heading), Item 30 - Before subsection 48(1), Item 31 - Subsections
48(1) and (2), Item 32 - After subsection 48(3), and Item 33 - Subsections 48(4) and
(5)
53. These items amend the GBRMP Act to provide for delegation of the CEO's powers or
functions under the Act, rather than the Chairperson. This reflects the transfer of
responsibilities from the Chairperson to the CEO as the 'accountable authority' for the
purposes of the Public Governance, Performance and Accountability Act 2013 and
'agency head' for the purposes of the Public Service Act 1999, and the CEO's
responsibility for leading and managing the agency and implementing the Authority's
strategy and directions.
54. New subsection 48(1AA) provides for the CEO to delegate a power or function to a
member of staff of the Authority working in an SES or Executive Level 2 or equivalent
position. The purpose of this item is to provide flexibility in the efficient and effective
administration of the Authority as a statutory agency. Executive Level 2 or equivalent
positions have been included, as limiting such delegation to SES positions would be too
restrictive given the size and structure of the organisation.
Item 34 - Sections 53 and 53A, Item 35 - Paragraphs 59F(7)(b) and (c), Item 36 -
Section 61AMA, Item 37 - Subsections 61AMB(4) and (5), and Item 38 -
Subsections 61AMC(1), (2), (3) and (4)
55. These items amend the GBRMP Act to reflect the transfer of responsibilities from the
Chairperson to the CEO as the 'accountable authority' for the purposes of the Public
Governance, Performance and Accountability Act 2013 and 'agency head' for the
purposes of the Public Service Act 1999, and the CEO's responsibility for leading and
managing the agency and implementing the Authority's strategy and directions.
56. The sections amended by these items relate to: preparation of the Authority's annual
report and corporate plan; persons to whom the Minister may delegate the power to
exempt the requirement to navigate with a pilot; the power to issue, vary, or revoke an
evidentiary certificate; and the evidentiary effect of a certificate.
Part 2 - Consequential amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 39 - Subsection 486E(2) (paragraph (d) of the definition of official), Item 40 -
Paragraph 515AA(1)(b), Item 41 - Paragraph 515AB(1)(b), Item 42 - Subparagraph
17(3)(c)(i) of Schedule 1, Item 43 - Paragraph 38(3)(b) of Schedule 1 and Item 44 -
Subclause 38(4) of Schedule 1
57. These items change references to the Chairperson of the Authority within the
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to the CEO
of the Authority. This reflects the transfer of responsibilities from the Chairperson to the
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CEO as the 'accountable authority' for the purposes of the Public Governance,
Performance and Accountability Act 2013 and 'agency head' for the purposes of the
Public Service Act 1999, and the CEO's responsibility for leading and managing the
agency and implementing the Authority's strategy and directions.
58. The sections amended by these items relate to: notices to produce or attend for
investigation or preventing offences under the EPBC Act; delegation of powers by the
Minister or Secretary of the Environment Department relating to the Great Barrier Reef
Marine Park; and powers in Schedule 1 of the EPBC Act which deals with provisions
relating to the detention of suspected foreign offenders.
Part 3 - Application and transitional provisions
Item 45 - Interpretation
59. This item defines terms relevant only to this Part of the Act which deals with application
and transitional provisions. In particular, 'commencement day' is defined to mean the day
on which the Schedule commences.
Item 46 - Period of appointment
60. This item clarifies that the limit of 10 years continuous appointment (excluding acting
appointments) applies to existing members of the Authority. This period begins from the
date of their appointment, even if they were appointed prior to the commencement day.
This aligns with the purpose of the amendment in item 14 which is to allow for rotation
of members with different skills sets and knowledge.
Item 47 - Conditions of appointment
61. This item clarifies that the new sections 15A, 15B, 16 and 16B of the GBRMP Act
relating to outside employment, membership of a governing body of a relevant interest
group, grounds for termination, and determination of other terms and conditions of office
by the Minister also apply to existing members of the Authority (see paragraphs 32-37).
Item 48 - References in certain instruments to the Chairperson of Authority
62. This item provides for certain instruments made by the Chairperson prior to the
commencement day to continue to have effect after the commencement of the Act.
References in those instruments to Chairperson are to be read as references to the CEO.
This ensures that those instruments are not invalidated merely by the change to the
powers of the Chairperson on commencement of the Act. This only applies to instruments
referring to the Chairperson as the 'accountable authority' for the purposes of the Public
Governance, Performance and Accountability Act 2013 and 'agency head' for the
purposes of the Public Service Act 1999.
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Item 49 - Transitional rules
63. This item allows the Minister for the Environment and Energy to make rules about
transitional matters relating to the amendments or repeals made by this Act.
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Schedule 2 - Powers of zoning plans and plans of management
Background
64. Schedule 2 makes changes directed at clarifying the relationship between zoning plans,
plans of management and regulations made under the GBRMP Act; or other legislative
instruments. Schedule 2 also includes application and transitional provisions to provide
certainty in relation to existing arrangements. This is achieved by confirming that
regulations, zoning plans and plans of management made under the Act can continue to
be made in the same style as they currently are, which allows for the continuity of a
flexible and consistent regulatory regime within the Marine Park.
Part 1 -Amendments
Great Barrier Reef Marine Park Act 1975
Item 1 - After section 35D
65. This item inserts a new section 35DA into the GBRMP Act. Subsection 35DA(1)
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.
66. Under Division 2 of Part V of the GBRMP Act the Authority may prepare zoning plans
for the Marine Park.
67. The primary purpose of the new subsection 35DA(1) is to clarify the relationship between
a zoning plan prepared by the Authority under Division 2 of Part V of the GBRMP Act
and regulations made by the Governor-General under subsection 66(1) of the GBRMP
Act by confirming that regulations may provide matters for the purposes of zoning plans.
The new subsection 35DA(1) also clarifies the relationship between zoning plans and
other legislative instruments by confirming that other legislative instruments may provide
matters for the purposes of zoning plans.
68. Subsection 35DA(2) provides that to avoid doubt, a reference to a zoning plan in Part V
of the GBRMP Act (except subsections 32B(2) and 35A(1)) does not include a reference
to regulations, or another legislative instrument, covered by subsection 35DA(1). The
purpose of the new subsection 35DA(2) is to ensure that the procedural requirements in
Part V for zoning plans, such as the requirements relating to preparation, commencement
and disallowance of zoning plans, are not interpreted as applying to regulations made
under the GBRMP Act, or other legislative instruments, in circumstances where such
regulations or other legislative instruments provide matters for the purposes of zoning
plans.
69. Subsection 35DA(2) does not apply to subsections 32B(2) and 35A(1) because when
subsections 32B(2) and 35A(1) are referring to a zoning plan, they are also referring to
any regulations made under the GBRMP Act, or other legislative instruments, to the
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extent that the regulations or other instruments provide matters for the purposes of that
zoning plan.
Item 2 - After section 39ZF
70. This item inserts a new section 39ZFA into the GBRMP Act. Subsection 39ZFA(1)
provides that a plan of management may provide in relation to a matter by providing that
the regulations, or any other legislative instrument, provide in relation to that matter.
71. Under Part VB of the GBRMP Act, the Authority may prepare plans of management for
the Marine Park.
72. The purpose of the new subsection 39ZFA(1) is to set out the relationship between a plan
of management prepared by the Authority and regulations made by the Governor-General
under subsection 66(1) of the GBRMP Act by confirming that regulations may provide
matters for the purposes of plans of management. The new subsection 39ZFA(1) also
clarifies the relationship between a plan of management and other legislative instruments
by confirming that other legislative instruments may provide matters for the purposes of
plans of management.
73. Subsection 39ZFA(2) provides that to avoid doubt, a reference to a plan of management
in Part VB of the GBRMP Act (except section 39W) does not include a reference to
regulations, or any other legislative instrument, covered by subsection 39ZFA(1). The
purpose of the new subsection 39ZFA(2) is to ensure that the procedural requirements in
Part VB, such as the requirements relating to preparation and commencement of plans of
management, are not interpreted as applying to regulations made under the Act, or other
legislative instruments, in circumstances where such regulations or other legislative
instruments provide matters for the purposes of plans of management.
74. Subsection 39ZFA(2) does not apply to subsection 39W because when subsection 39W is
referring to a plan of management, it is also referring to any regulations made under the
GBRMP Act, or other legislative instruments, to the extent that the regulations or other
instruments provide matters for the purposes of that plan of management.
Item 3 - Subsection 66(1)
75. This item amends subsection 66(1) to clarify that 'zoning plan' in subsection 66(1) is to
be read as disregarding regulations made for the purposes of new subsection 35DA(1).
This clarification is necessary to ensure that if regulations are made that provide matters
for the purposes of a zoning plan, subsection 66(1) does not prevent subsequent
regulations from being made which may be considered to be 'inconsistent' with the
relevant zoning plan pursuant to subsection 66(1).
Item 4 - At the end of subsection 66(1)
76. This item inserts a note stating that the regulations may provide for a matter that a zoning
plan or plan of management may otherwise provide for. The note is inserted into section
66 for information.
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77. The note is included as a consequence of the new section 35DA (which sets out the
relationship between zoning plans and regulations made under the GBRMP Act, and
other legislative instruments) and the new section 39ZFA (which sets out the relationship
between plan of managements and regulations made under the GBRMP Act, and other
legislative instruments).
Item 5 - After paragraph 66(2)(ba)
78. This item inserts a new paragraph 66(2)(bb) which provides that regulations may be made
providing that zoning plans or plans of management may provide in relation to a matter in
relation to which the regulations may provide.
79. This item complements the new sections 35DA and 39ZFA by confirming that zoning
plans and plans of management may provide matters for the purposes of regulations made
under the GBRMP Act.
Part 2 - Application and transitional provisions
80. Part 2 contains application and transitional provisions which have retrospective
application. Essentially these provisions preserve the effect of actions previously taken
under Marine Park legislation, and confirm the validity of rights and liabilities of persons
that have arisen under Marine Park legislation. These provisions will ensure the
application of GBRMPA instruments in the past and in the future is the same, so that
persons are not disadvantaged by any potential for inconsistent application of the existing
framework. The retrospective application of the amendments will not adversely impact on
persons due to the inclusion of a 'historic shipwrecks' clause at Item 10 (discussed in
more detail below).
Item 6 - Definitions
81. This item defines two terms used in Part 2 of Schedule 2, namely 'affected order' and
'pre-commencement GBRMPA instrument.'
a. 'affected order' is defined in paragraph (a) of the definition as an order purportedly
made, before the commencement of Part 2, in relation to any pre-commencement
GBRMPA instrument, or an order purportedly made, before the commencement of
Part 2, on appeal from, or review of, an order referred to in subparagraph (a)(i) of the
definition of 'affected order.' Paragraph (b) of the definition provides that if, before
the commencement of Part 2, a court or Registrar purported to vary, revoke, set aside,
revive or suspend an order referred to in paragraph (a) of the definition, then an
affected order is defined as an order in the form in which, and to the extent to which,
it purports or purported to have effect from time to time. A definition for the term
'affected order' is necessary because the term is used in Part 2 in items 9 and 11;
b. 'pre-commencement GBRMPA instrument' is defined as any zoning plan, any plan of
management or any regulations as in force under the GBRMP Act at any time before
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the commencement of Part 2. A definition for the term is necessary because the term
is used in Part 2 in items 8 and 9.
Item 7 - Application of amendments
82. This item is an application provision. The effect of this provision is that the amendments
made by Part 1 of Schedule 2 apply in relation to any zoning plan, any plan of
management and any regulations made under the GBRMP Act, whether before or after
the commencement of Part 2. This item is intended to ensure the amendments made by
Part 1 of Schedule 2 apply both retrospectively and prospectively so as to avoid any
uncertainty about the ability for GBRMPA instruments to provide for the matters
contemplated in Schedule 1.
Item 8 - Instruments made before commencement etc.
83. Subitem (1) provides that a pre-commencement GBRMPA instrument is, and is taken to
always have been, as valid as the instrument would have been if the instrument had been
made under the GBRMP Act as amended by Part 1 of Schedule 2.
84. Subitem (2) provides that any thing done before the commencement of Part 2 of Schedule
2 under a pre-commencement GBRMPA instrument is, and is taken always to have been,
as valid as it would have been if the instrument had been valid.
85. The purpose of subitems (1) and (2) is to eliminate any doubt about the validity of pre-
commencement GBRMPA instruments and the validity of things done pursuant to such
instruments.
Item 9 - Rights and liabilities of persons
86. The purpose of this item is to eliminate any doubt about the validity of actions taken on
the basis of pre-commencement GBRMPA instruments.
87. Subitem (1) provides that the rights and liabilities of all persons are by force of item 9,
declared to be, and always to have been, the same as if each pre-commencement
GBRMPA instrument had always been valid. Subitem (1) is subject to subitems (3) and
(4). This ensures that there is no doubt about rights and liabilities that arose under a pre-
commencement GBRMPA instrument.
88. Subitem (2) provides a non-exhaustive list of things people are entitled to do, or to have
done, in relation to the rights and liabilities conferred under subitem (1).
89. Paragraph (2)(a) provides that all persons are, by force of item 9, declared to be, and
always to have been, entitled to act on the basis that other persons had, and have, the
rights and liabilities as declared by subitem (1).
90. Paragraph (2)(b) provides that a right or liability that a person is declared by subitem (1)
to have, or to have had, is exercisable or enforceable, and is to be regarded as always
having been exercisable or enforceable, as if each pre-commencement GBRMPA
instrument had always been valid.
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91. Paragraph 2(c) provides that the rights and liabilities that a person is declared by subitem
(1) to have, or to have had, include any right the person would have or have had, to
appeal, or to seek review of, an affected order, if each pre-commencement GBRMPA
instrument had always been valid.
92. Subitem (3) provides that item 9 does not affect rights or liabilities of parties to
proceedings for which leave to appeal to the High Court has been given on or before the
day this Part commences, to the extent that the fact that a pre-commencement GBRMPA
instrument was not valid is in issue in the proceedings. This ensures that the retrospective
operation of the amendments will not interfere with High Court proceedings which have
already commenced.
93. Subitem (4) makes it clear that nothing in item 9 is intended to affect the jurisdiction of
the High Court under section 75 of the Constitution.
Item 10 - Compensation for acquisition of property
94. The purpose of this item is to provide that if Part 2 of Schedule 2 would result in an
acquisition of property from a person otherwise than on just terms, the Commonwealth is
liable to pay a reasonable amount of compensation to the person.
95. Subitem (1) provides that if the operation of Part 2 of Schedule 2 would result in an
acquisition of property from a person otherwise than on just terms, the Commonwealth is
liable to pay a reasonable amount of compensation to the person. 'Acquisition of
property' and 'just terms' in this subitem have the same meaning as in paragraph 51(xxxi)
of the Constitution.
96. Under subitem (2), if the Commonwealth and the person do not agree on the amount of
the compensation, the person may institute proceedings in the Federal Court of Australia,
the Federal Circuit Court of Australia, or a court of a State or Territory that has
jurisdiction in relation to matters arising under the GBRMP Act, for the recovery from
the Commonwealth of such reasonable amount of compensation as the court determines.
Item 11 - Evidence
97. This item provides for the court record, or a copy of the court record, of an affected order
to be used as evidence of the existence, nature and extent of an order-based right or
liability.
98. This item will ensure that a court is in a position to determine the rights and liabilities of a
person under an affected order by reference to the court record and is intended to
complement the operation of Section 157 of the Evidence Act 1995.
Item 12 - Part does not apply to certain orders
99. This item provides that this Part does not apply to an order specifically declared or held to
be invalid, or to have been made without power, by a court before the commencement of
this Part.
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100. The purpose of this item is to ensure that Part 2 will not interfere with findings by a
court made before the commencement of the Part, and any actions or orders consequential
to that finding.
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