Commonwealth Numbered Regulations - Explanatory Statements

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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 131 OF 2006)

 

 

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 131

 

Issued by the Authority of the Minister for the Environment and Heritage

 

Environment Protection and Biodiversity Conservation Act 1999

 

Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1)

 

Subsection 520(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Paragraph 247(d) of the Act provides that regulations may provide for the protection and conservation of cetaceans (whales and dolphins).

 

The purpose of the Regulations is to amend the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) to substitute a revised and updated Part 8, Division 8.1 and make consequential amendments to Part 8, Division 8.2.  Part 8 makes provision for the regulation of persons within the Australian Whale Sanctuary, which covers the area from 3 to 200 nautical miles from Australia’s coast, to minimise the impact of activities on cetacean populations within the Sanctuary.

 

The Regulations aim to govern the interactions of persons with cetaceans within the Australian Whale Sanctuary.  The new offence provisions prohibit actions such as feeding, touching or pursuing cetaceans, failing to comply with the approach distances around cetaceans, making sudden movements within specified distances of cetaceans, and swimming with cetaceans.  The offences under the Regulations are generally ones of strict liability.

 

The Regulations will support the Australian National Guidelines for Whale and Dolphin Watching 2005 (the National Guidelines).  These Guidelines have been developed jointly by the Australian and all State and Territory Governments through the Natural Resource Management Ministerial Council.

 

The Regulations are consistent with the Great Barrier Reef Marine Park Regulations 1983 regulating interactions with cetaceans, which apply within the Great Barrier Reef Marine Park.  Both sets of Regulations will ensure that consistent provisions regulating interactions with cetaceans apply within the Great Barrier Reef Marine Park and the Australian Whale Sanctuary.

 

The Department of the Environment and Heritage did not undertake consultation specifically on these regulatory amendments, however extensive consultation was undertaken by the Department in 2005 in relation to the development of the National Guidelines.  All Australian government bodies participated in the development of the guidelines.  Opportunities for public participation were provided through the circulation to stakeholders of a discussion paper, the hosting of 6 public forums around the country and a public comment period on a draft of the guidelines.

 

Details of the Regulations are set out in the Attachment.

 

The Office of Regulation Review has given an exemption from the need for a Regulation Impact Statement.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered.

 


 

ATTACHMENT

 

Details of the Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Environment Protection and Biodiversity Conservation Amendment Regulations 2006 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Environment Protection and Biodiversity Conservation Regulations 2000

 

This regulation provides that the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Division 8.1

Item 1 would insert a substitute Division 8.1 “Interacting with cetaceans” into the Principal Regulations.

 

Regulation 8.01 - Purpose of Division 8.1

Regulation 8.01 outlines the purpose of Division 8.1, which provides for the protection and conservation of cetaceans, under paragraph 247(d) of the Act.

 

Regulation 8.01A - Interpretation

Regulation 8.01A provides that for the purposes of Division 8.1 Interacting with cetaceans, the term cetacean does not include cetacean parts or products.

 

Regulation 8.02 - Application of Division 8.1

Regulation 8.02 provides that Division 8.1 applies in the Australian Whale Sanctuary, with the exception of any State or Territory coastal waters that are subject to a declaration in force under section 228 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

 

Regulation 8.03 - Offences in this Division

Paragraph 8.03(1)(a) provides that a person would not contravene a provision of Division 8.1 if they are undertaking certain activities mentioned in paragraph 231(c), (d), (e) or (f) of the EPBC Act.  Those activities are an action that is taken in a humane manner and is reasonably necessary to relieve or prevent suffering of a cetacean; an action that is reasonably necessary to prevent a risk to human health; an action by a Commonwealth agency, or an agency of a State or of a self-governing Territory, that is reasonably necessary for the purposes of law enforcement; or an action that is reasonably necessary to deal with an emergency involving a serious threat to human life or property.

 

Paragraph 8.03(1)(b) provides that a person would not contravene a provision of Division 8.1 if they are undertaking certain activities mentioned in paragraph 231(a), (b) or (h) of the EPBC Act.  The qualification is added that the activity could not be undertaken at a time or in a way to avoid contravening the provision.  The activities are an action authorised by a permit issued under section 238 of the EPBC Act and still under force; an action provided for by, and taken in accordance with, a recovery plan or a wildlife conservation plan made or adopted under the EPBC Act and in force, or an action provided for by, and taken in accordance with, a plan or regime for a fishery or fisheries that is accredited under section 245 of the EPBC Act.

 

Subregulation 8.03(2) provides that a person in the Great Barrier Reef Marine Park would not contravene a provision of Division 8.1 if they have an exemption that is in force issued under regulation 117K of the Great Barrier Reef Marine Park Regulations 1983.

 

Regulation 8.04 - Prohibited vessel

Subregulation 8.04(1) provides that this regulation applies to a person who operates a prohibited vessel.  The term “prohibited vessel” is defined and includes a jet ski, a parasail, a hovercraft, a hydrofoil, a wing-in-ground-effect craft and a motorised diving aid, such as a motorised underwater scooter.

 

Subregulation 8.04(2) provides that a prohibited vessel must not approach closer than 300 metres to a cetacean.

 

Subregulation 8.04(3) provides that a prohibited vessel must move at a constant slow speed away from a cetacean that is approaching so that the vessel remains at least 300 metres away from the cetacean.

 

Subregulation 8.04(4) provides that if a vessel is operated in a way that contravenes subregulations (2) or (3), the person operating the vessel is guilty of an offence attracting a penalty of 50 penalty units.  Subregulation 8.04(5) provides that this offence is a strict liability offence.

 

Regulation 8.05 - Other craft – adult cetaceans

Subregulation 8.05(1) provides that this regulation applies to a person operating a vessel that is not a prohibited vessel.  As there are stricter requirements in relation to interactions with calves, this regulation applies in relation to cetaceans other than calves.  Regulation 8.06 relates specifically to calves.

 

Subregulation 8.05(2) specifies the manner in which a person must operate a vessel when they are within the caution zone for a cetacean.  The caution zone for a cetacean is defined as an area around the cetacean of 150 metres for a dolphin and 300 metres for a whale.

 

Paragraph 8.05(2)(a) provides that within the caution zone a vessel must be operated at a constant slow speed and with minimal noise.

 

Paragraph 8.05(2)(b) provides that the vessel must not drift closer than 50 metres to a dolphin or 100 metres to a whale.  Subregulation 8.05(6) provides that it is a defence to this provision if the cetacean has approached the vessel.  If the cetacean does approach the vessel however, subregulations 8.05(4) and (5) must be complied with.

 

Paragraph 8.05(2)(c) provides that if the cetacean shows signs of being disturbed, the vessel must be immediately withdrawn from the caution zone at a constant slow speed.

 

Paragraph 8.05(2)(d) provides that if there is more than 1 person on the vessel, a lookout for cetaceans must be posted.

 

Paragraph 8.05(2)(e) makes provision for the manner by which a vessel may approach a cetacean.

 

Paragraph 8.05(2)(f) provides that the vessel must not restrict the path of the cetacean.

 

Paragraph 8.05(2)(g) provides that the vessel must not be used to pursue the cetacean.

 

Subregulation 8.05(3) provides that a vessel must not enter the caution zone of a cetacean if there are already 3 vessels in the caution zone.

 

Subregulation 8.05(4) provides that if a whale approaches a vessel, or comes within 100 metres of the vessel, the person must disengage the gears of the vessel and let the whale approach, or reduce the speed of the vessel and continue on a course away from the whale.

 

Subregulation 8.05(5) provides that if a dolphin approaches a vessel or comes within 50 metres of the vessel, the person must not change the course or speed of the vessel suddenly.

 

Subregulation 8.05(6) provides that it is a defence to the offence at paragraph (2)(b) that the cetacean has approached the vessel.

 

Subregulation 8.05(7) specifies that offences against subregulations 8.05(2), (3), (4) and (5), are offences of strict liability.  The penalty for each offence is 50 penalty units.

 

Regulation 8.06 - Other craft – calves

Subregulation 8.06(1) provides that this regulation applies to a person who is operating a vessel that is not a prohibited vessel.  The intent of the regulation is to impose stricter limits on interactions with cetaceans when there is a calf present.

 

Subregulation 8.06(2) provides that a person must not allow the vessel to enter the caution zone of a calf.  The “caution zone” is defined as 150 metres for a dolphin and 300 metres for a whale.  Subregulation 8.06(4) provides that it is a defence to this provision if the calf approaches the vessel.

 

Subregulation 8.06(3) makes provision for how a vessel must be operated if a calf appears within the caution zone.  The person must immediately stop the vessel, and must turn off the vessel’s engines, disengage the gears or withdraw the vessel from the caution zone at a constantly slow speed.

 

Subregulation 8.06(5) provides that the offences under subregulations 8.06(2) and (3) are strict liability offences. The penalty for each offence is 50 penalty units.

 

Regulation 8.07 - Aircraft

Subregulation 8.07(1) provides that this regulation applies to a person who is operating an aircraft.

 

Subregulation 8.07(2) specifies the distances to cetaceans within which a person cannot operate an aircraft.  These distances are the height of 1650 feet and the horizontal radius of 500 metres for a helicopter or a gyrocopter, and the height of 1000 feet and 300 metres for all other aircraft.  In addition, the subregulation provides that aircraft cannot approach a cetacean from head on, and must not land the aircraft on water so that it comes within the radius of a cetacean of 500 metres for a helicopter or gyrocopter, or 300 metres for other aircraft.

 

Subregulation 8.07(3) provides that an offence against subregulation 8.07(2) is an offence of strict liability.  The maximum penalty is 50 penalty units.

 

Regulation 8.08 - Feeding

Subregulation 8.08(1) provides that a person must not feed or attempt to feed a cetacean.  The maximum penalty for a contravention of this provision is 50 penalty units.

 

Subregulation 8.08(2) provides that the offence under subregulation 8.08(1) is an offence of strict liability.

 

Subregulation 8.08(3) provides an exception to the offence under subregulation 8.08(1) in relation to the routine discarding of bycatch by a commercial fisher if the fisher makes reasonable efforts to avoid discarding bycatch near a cetacean.

 

Subregulation 8.08(4) defines feed to include to throw food or rubbish into the water near a cetacean.

 

Regulation 8.09 – Touching and sudden movements

Subregulation 8.09(1) provides that a person must not touch a cetacean or make sudden movements within 2 metres of a cetacean.  The maximum penalty is 50 penalty units.

 

Subregulation 8.09(2) provides that the offence under subregulation 8.09(1) is a strict liability offence.  The maximum penalty is 50 penalty units.

 

Regulation 8.09A - Swimming with cetaceans

Subregulation 8.09A(1) provides that this regulation applies to a person who is entering the water, or in the water.

 

Subregulation 8.09A(2) provides that a person must not enter the water within 100 metres of a whale or within 50 metres of a dolphin.

 

Subregulation 8.09A(3) provides that whilst in the water, a person must not approach within 30 metres of a cetacean.

 

Subregulation 8.09A(4) contemplates the situation where a cetacean is approaching a person, and provides that if a cetacean comes within 30 metres of a person in the water the person must move slowly to avoid startling the cetacean, and must not touch the cetacean or swim towards it.

 

The penalties for the offences under subregulations 8.09A(2), (3) or (4) are 50 penalty units.

 

Subregulation 8.09A(5) provides that an offence against subregulation 8.09A(3) and (4) is an offence of strict liability.

 

Item [2] – Regulation 8.10 Note

Item 2 amends the existing regulation 8.10 to omit the note.

 

Item [3] - Division 8.2

Item 3 would insert a substituted regulation 8.11 which provides that the provisions in Division 8.2 Whale Watching apply in the Australian Whale Sanctuary, with the exception of any State or Territory coastal waters that are subject to a declaration in force under section 228 of the EPBC Act.

 

Item [4] – Division 8.2

Item 4 amends existing subregulation 8.12(1) to reflect the new terminology of prohibited vessel.

 

Items [5] and [6] – Division 8.2

Items 5 and 6 updates the references in subregulations 8.12(2) and (3) reflecting the renumbering of earlier regulations.

 

Item [7] – Division 8.2

Item 7 amends subregulation 8.12(4) to omit a reference to regulations 8.06 and 8.07 which are no longer correct and insert a reference to regulation 8.09A.

 

Item [8] Dictionary

Item 8 deletes the definition of bow-ride

 

Item [9] Dictionary

Item 9 provides a new definition of calf

 

Item [10] Dictionary

Item 10 provides a new definition of caution zone

 

Item [11] Dictionary

Item 11 provides a new definition of dolphin

 

Item [12] Dictionary

Item 12 deletes the definition of large whale

 

Item [13] Dictionary

Item 13 deletes the definition of porpoise

 

Item [14] Dictionary

Item 14 provides a definition of prohibited vessel

 

Item [15] Dictionary

Item 15 deletes the definition of restricted craft

 

Item [16] Dictionary

Item 16 provides a new definition of whale

 

 


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