Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2004 (NO. 5) 2004 NO. 333

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 333

ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND HERITAGE

Great Barrier Reef Marine Park Act 1975

Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 5)

Subsection 66(1) of the Great Barrier Reef Marine Park Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act or with a zoning plan, 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.

Without limiting the generality of subsection 66(1) of the Great Barrier Reef Marine Park Act 1975, regulations may be made providing for giving effect to the enforcement provisions of a plan of management or to the enforcement provisions of an amendment of a plan of management (subsection 66(2)(ba)).

The purpose of the Regulations is to make technical amendments to the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) in order to give effect to amendments to the Cairns Area Plan of Management 1998 (the Plan) contained in the Cairns Area Plan of Management Amendment 2004 (No. 1).

The Plan was prepared in accordance with Part VB of the Act to provide strategies for the protection of the Cairns Planning Area (the area in which the Plan applies), and was originally adopted in June 1998. In 1999, minor amendments were made to the Plan and then again in 2002 in response to submissions from users of the Area.

In April 2004, the Great Barrier Reef Marine Park Authority (the Authority) decided that the Plan warranted further amendment to address newly arising issues and to make editorial and technical corrections. As required by the Act, the public were invited to make submissions in connection with the proposed amendment prior to the closing date. Subsequently in August 2004, the Authority decided to alter the proposed amendments in response to submissions received. The amendments to the Plan were formally adopted when the Authority made the Cairns Area Plan of Management Amendment 2004 (No. 1).

The Cairns Area Plan of Management Amendment 2004 (No. 1) amends the Plan in the following respects:

•       providing a more reasonable level of access and operational flexibility for the boutique cruise industry, being vessels longer than 35 metres, and large day boats by providing an increased choice of destinations;

•       providing for potential growth in tourism based in the Cooktown area by allowing these operators to gain a greater level of access to the Cairns Planning Area than previously permitted; and

•       further clarifying the intent of the Plan by implementing a series of editorial and technical corrections.

A Regulation Impact Statement supporting the amendment of the Plan was approved by the Office of Regulation Review (ORR) on 5 August 2004. The ORR separately notified that a Regulation Impact Statement for the making of the Regulations was not required as the Regulations are `machinery of government'. Copies of the Regulation Impact Statement and the letters from ORR are included at Attachment A.

The Regulations give effect to the amendments made by the Cairns Area Plan of Management Amendment 2004 (No. 1), and ensure that the Principal Regulations reference the most current consolidation of the Plan.

In particular, the Regulations:

•       substitute subregulation 3(2) and insert new subregulation 3(2A) to provide that references to the Plan in the Principal Regulations are read as referring to the Plan as at the commencement of the proposed Regulations;

•       substitute subregulation 3(3) to specify that references to the Hinchinbrook Plan of Management 2004 are references to that plan as at a specific date; and

•       insert a new subregulation 173(3) into Part 10 `Cairns Area Plan of Management 1998 - enforcement provisions' of the Principal Regulations specifying that the enforcement provisions inserted in the Plan by, as well as those amended by, the Cairns Area Plan of Management Amendment 2004 (No.1), take effect on the day the subregulation commences.

Details of the Regulations are set out in Attachment B.

The Regulations commence on the date of their notification in the Gazette.

Attachment A

Regulation Impact Statement Correspondence


Australian Government
Productivity Commission

Office of Regulation Review

Courier Delivery Only
Level 3, Nature Conservation House
Cnr Emu Bank and Benjamin Way
Canberra ACT 2617

Mail
PO Box 80
Belconnen ACT 2616
AUSTRALIA
Telephone 02 6240 3290
Facsimile 02 6240 3355
Email orr@pc.gov.au
www.pc.gov.au

Our reference: 2004/3825

5 August 2004

Nick Wynn
Senior Planner
Great Barrier Reef Marine Park Authority

Dear Nick

Thank you for the revised RIS for amendments to the Cairns Area Plan of Management. The ORR advises that the Government's regulatory best practice requirements have been met, and that the RIS contains an adequate level of analysis.

Thank you for consulting the ORR.

Regards
Gerard Prior

REGULATION IMPACT STATEMENT

CAIRNS AREA PLAN OF MANAGEMENT: AMENDMENT 2004

INTRODUCTION

The GBRMPA first released the Cairns Area Plan of Management (`the Plan') on June 1998 to provide strategies for the protection of the Cairns Planning Area. In 1999, minor amendments were made to the Plan and then again in 2002 in response to submissions from users of the Area.

The Area includes some of the most spectacular reefs in the Marine Park and abundant wildlife including dugong, whales, dolphins, turtles and seabirds. These natural attractions are the focus of a dynamic tourism industry which accounts for over 50% of the total annual visitation to the Great Barrier Reef. The Area is managed for high levels of use, including tourism use. Managing the impacts of use on the values of the Area is a major element of this Plan.

On 29 April 2004, the Board of the Great Barrier Reef Marine Park Authority decided that the Plan warranted further amendment to address newly arising issues and to effect editorial and technical corrections. At the same meeting, the Authority decided to cause a public notice to be given, in accordance with the Great Barrier Reef Marine Park Act 1975, inviting the public to make submission in connection with the amendment.

The proposed amendment was released for community consultation on 4 June 2004, with a final date for public submissions being 9 July 2004. Thirty submissions were received from a range of interest groups, mainly consisting of tourism operators. The summation presented here reflects the proposed amendment, which have been altered as a response to community consultation.

THE PROPOSED AMENDMENT

1.       Increased choice of destinations for tourism

The Plan controls the amount of people that are using a reef at any one time by limiting the amount of people onboard a vessel at that reef. The Plan accomplishes this by assigning one of three setting limits to a reef - intensive, moderate or low.

Each setting prescribes a maximum group size per vessel or aircraft.

Intensive Use Location - no limit
Moderate Use Location - 60 people
Low Use Location - 15 people

The tourism industry raised concerns that the Plan did not adequately provide for those vessels that carry in the order of 100 persons. To address these concerns, this amendment provides a more reasonable level of operational flexibility for the boutique cruise industry (vessels between 35 and 70 metres in length) and large day boats that operate from Cairns and Port Douglas by providing an increased choice of destinations with an increased group size onboard (refer to Table 1).

The increase in use will be constrained to vessels when operating from moorings, which offers the tourist industry with the flexibility it requests while providing a mechanism to control associated impacts, such as anchoring on the reef. The proposal to link the increased flexibility to vessels operating only from moorings was supported and in some cases suggested by existing tourism operators who had concerns that any `blanket increase' had the potential to reduce the character of the product (loosing the feeling of seclusion).

Table 1: Reefs that may be visited with an increased group size


Location

Group size limit (people)

1

Ribbon Reef No 9

100

2

Unnamed 14-153

100

3

Ribbon Reef No 3

100

4

Andersen Reef

100

5

Escape Reef

100

6

Unnamed 16-011

100

7

Unnamed 16-016

100

8

Unnamed 16-018 (a)

100

9

Unnamed 16-018 (b)

100

10

Opal Reef

100

11

Saxon Reef

100

12

Hastings Reef Locality 2

Unlimited

13

Oyster Reef

100

14

Breaking Patches Reef

100

15

Upolu Cay Reef

100

16

Thetford Reef

100

17

Moore Reef Locality 2

100

18

Channel Reef

100

In addition, the amendment provides the tourism industry with four additional reefs where vessels may be anchored with a maximum of 100 people no board, providing this is conducted in a designated reef anchorage (refer to Table 2).

Table 2: Reef anchorages


Location

Group size limit (people)

1

Ribbon Reef No. 9

100

2

Ribbon Reef No. 3

100

3

Thetford Reef

100

4

Moore Reef Locality 2

100

2.       Increased anchoring flexibility for the boutique cruise industry

To date boutique cruise vessels, due to their large size, have been constrained to anchoring in designated reef anchorages or to moor at moorings that are predominantly on the northern side of reefs, and therefore exposed to northerly winds. To aid boutique cruise vessels in finding safe anchorages during adverse weather conditions, it is proposed to amend the Plan to allow vessels of this size to anchor outside designated reef anchorages at nominated reefs (refer to Table 3), providing it is done in accordance with a pre-approved anchoring strategy.

Table 3: Locations where boutique cruise vessels may anchor outside a designated reef anchorage.


Location

1

Lizard Island Locality 4

2

Ribbon Reef No. 9 (14-154)

3

Unnamed Reef (14-153)

4

Ribbon Reef No. 3 (15-050)

5

Rachel Carson Reef

6

Thetford Reef (16-068)

7

Moore Reef Locality 2

3.       Provision for potential growth in tourism based from Cooktown/Bloomfield area

The boundary of the Cairns Planning Area does not include the inshore and some mid-shelf reefs off Cooktown/Bloomfield, but does include the outer shelf reefs. This effectively limits Cooktown/Bloomfield operators to having to pre-determine exactly which reefs they will visit before leaving port, as they are all currently constrained to having to book to enter the Cairns Planning Area. This limits their ability to vary an itinerary if the weather conditions or other circumstances alter.

This is the same issue that arose in connection with Bowen based operations adjacent to the Whitsunday Planning Area and it is proposed that the GBRMPA adopt a similar strategy. That is, to amend the Plan to allow the Authority to allocate five (5) new permits for daily entry to the Cairns Planning Area without the requirement to book. Bookings will still be required in order to access any Sensitive Locations within the Cairns Planning Area. Allocation of these permits will be constrained to operators from the Cooktown/Bloomfield area.

The initial proposal, prior to public consultation, was to allocate ten new permits for daily entry into the Cairns Planning Area without the requirement to book. The tourism industry showed general support for the initial proposal however had concerns regarding the potential for an unsustainable increase in anchor damage and that an increase in use of this magnitude would degrade the style of product being offered by existing operators offshore Cooktown.

Attachment B

Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 5)

Details of the Regulations are as follows:

Regulation 1 provides that the name of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 5).

Regulation 2 provides that the Regulations commence on the date of their notification in the Gazette.

Regulation 3 provides that Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations).

Schedule 1 - Amendments

Amendment 1 substitutes subregulations 3(2) and 3(3) of the Principal Regulations with new subregulations 3(2), 3(2A) and 3(3). The proposed amendment is of a technical nature only, and is necessary given changed circumstances in relation to the commencement of the Cairns Area Plan of Management 1998 (the Plan).

Presently, subregulation 3(2) of the Principal Regulations establishes that references to the Plan and the Whitsundays Plan of Management 1998 are references to those plans as in force on 7 June 2002. This is because amendments to both plans commenced on the same date. However, since amendments are to be made to the Plan but not to the Whitsundays Plan, it is necessary to discretely define the commencement date for each. New subregulation 3(2) omits reference to the Plan (dealing only with the Whitsundays Plan), while new subregulation 3(2A) establishes that a reference to the Plan is a reference to the Plan as in force at the commencement of that subregulation.

Subregulation 3(3) currently deals with the Hinchinbrook Plan of Management 2004, establishing that a reference to that plan is a reference to it as in force at the commencement of that subregulation. Subregulation 3(3) commenced on 15 April 2004. This item substitutes a reference to the actual date now that it is known.

Amendment 2 inserts a new subregulation 173(3) into Part 10 `Cairns Area Plan of Management 1998 - enforcement provisions' of the Principal Regulations.

New subregulation 173(3) specifies, that for the purposes of subsection 39ZF(2) of the Act, the enforcement provisions inserted in the Plan by, and those amended by, the Cairns Area Plan of Management Amendment 2004 (No. 1), take effect on the day the subregulation commences.


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