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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2004 (NO. 6) 2004 NO. 379
STATUTORY RULES 2004 NO. 379
Great Barrier Reef Marine Park Act 1975
Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 6)
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 Act, paragraph 66(2)(e) of the Act provides that regulations may be made regulating or prohibiting acts (whether in the Great Barrier Reef Marine Park (the Marine Park) or elsewhere) that may pollute water in a manner harmful to animals and plants in the Marine Park.
Without limiting the generality of subsection 66(1) of the Act, paragraph 66(2)(i) of the Act provides that regulations may be made regulating the conduct of persons in the Marine Park.
The purpose of the Regulations is to regulate the discharge of sewage in the Marine Park, and make provision for when a vessel can discharge sewage in the Marine Park.
Currently, regulation 100 of the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) provides that it is an offence for a person to intentionally or negligently discharge sewage in the Marine Park. Paragraph 100(2)(a) provides defences to a prosecution where the discharge is from a vessel or aircraft:
(i) that does not contain a storage tank designed for storing sewage; or
(ii) that contains a storage tank designed for storing sewage, if the vessel or aircraft is more than 500 metres seawards of the seaward edge of the nearest reef; or
(iii) if the discharge was for the purpose of saving life at sea or securing the safety of the vessel or aircraft.
Paragraph 100(2)(b) also provides an additional defence to a prosecution if the discharge of sewage occurred in a zone for which the zoning plan provides for the zone to be used or entered for that purpose.
The Regulations repeal regulation 100 of the Principal Regulations and insert a new Part 3A into the Principal Regulations providing for the discharge of sewage in the Marine Park.
On 1 January 2004, amendments to the Queensland Transport Operations (Marine Pollution) Regulation 1995 commenced. The Queensland regulations manage the discharge of sewage from vessels using the Queensland coastal waters. In addition, Division 2 of Part IIIB of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 commenced on 27 May 2004. Division 2 of Part IIIB of this Act gives effect to Australia's obligations regarding the discharge of sewage into the sea under Annex IV of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78).
These Regulations will ensure a consistent approach with regard to the discharge of sewage in waters of the Marine Park, Queensland coastal waters, and the discharge of sewage from foreign and domestic ships on international voyages.
Consultation has taken place with a wide range of stakeholder groups who may reasonably be affected by these Regulations. Such groups include conservation groups, tourism groups, shipping and recreational groups, the fishing industry, port authorities, and charter boat and cruising yacht club associations. Various State and Commonwealth government departments/bodies have also been consulted, including the Commonwealth Department of Defence (Royal Australian Navy), the Australian Maritime Safety Authority, and Maritime Safety Queensland.
Key stakeholder groups were sent details of the Regulations and were provided with an opportunity to comment on the proposals. In addition, staff of the Great Barrier Reef Marine Park Authority met with representatives of a number of stakeholder groups to discuss the Regulations.
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations would commence on 1 January 2005.
Attachment
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. 6).
Regulation 2 provides that the Regulations commence on
1 January 2005.
Regulation 3 provides that Schedule 1 amends the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations), as amended by the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4).
Schedule 1 - Amendments
Item 1 inserts new Part 3A "Discharge of sewage" into the Principal Regulations, and also inserts new regulations 93A, 93B, 93C, 93D, 93E and 93F as follows:
New Regulation 93A - Application of this Part
New regulation 93A clarifies that new Part 3A does not apply to the discharge of sewage to which Division 2 of Part IIIB of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 applies. Therefore, if a vessel discharges sewage in, or into, the Great Barrier Reef Marine Park (the Marine Park), and Division 2 of Part IIIB of that Act applies to the discharge, then an offence would have been committed under that Act and not these Regulations.
New Regulation 93B - Interpretation of this Part
New regulation 93B defines key terms used in this Part, including damage, discharge, Grade A treated sewage, Grade B treated sewage, Grade C treated sewage, reef and sewage.
New Regulation 93C - Discharge of sewage generally
New subregulation 93C(1) makes it an offence for a person to discharge sewage in, or into, the Marine Park in circumstances where the person engages in conduct and the person was either reckless as to whether sewage would be discharged in, or into, the Marine Park, or the person was negligent as to whether sewage would be discharged in, or into, the Marine Park. The maximum penalty for a contravention of this provision is 50 penalty units (subsection 4AA(1) of the Crimes Act 1914 provides that one penalty unit is $110).
However, a person does not contravene new subregulation 93C(1) if the sewage is discharged in a manner authorised by new regulation 93D (discharge of untreated sewage from vessels) or new regulation 93E (discharge of treated sewage from vessels).
New subregulation 93C(2) defines engage in conduct as having the same meaning as in the Criminal Code for the purposes of new subregulation 93C(1). Subsection 4.1(2) of the Criminal Code defines engage in conduct to mean (a) do an act; or (b) omit to perform an act.
New subregulation 93C(3) clarifies that the offence outlined in new subregulation 93C(1) does not apply if the discharge of sewage occurs in a zone for which the zoning plan provides for the zone to be used or entered for that purpose, and the person holds a relevant permission from the Great Barrier Reef Marine Park Authority to discharge sewage.
New subregulation 93C(4) provides additional defences to a prosecution for the discharge of sewage. These defences apply in circumstances where the sewage is discharged from a vessel or aircraft and:
(i) because of accidental damage (damage is defined in new
regulation 93B) to the vessel or aircraft and all reasonable precautions were taken before and after the occurrence of the damage to prevent or minimise the escape of sewage; or
(ii) the discharge was for the purpose of saving life at sea or securing the safety of the vessel or aircraft.
The note at the end of new subregulation 93C(4) clarifies that a defendant who relies on a defence outlined in new
subregulation 93C(4) would have the evidential burden of proving that matter pursuant to subsection 13.3(3) of the Criminal Code.
New Regulation 93D - Discharge of untreated sewage from vessels
New subregulation 93D(1) specifies the circumstances in which the master of a vessel that has 15 or fewer persons on board may allow untreated sewage to be discharged in the Marine Park. These circumstances are, however, subject to the qualifications outlined in new regulation 93F.
New subregulation 93D(2) specifies the circumstances in which the master of a vessel that has 16 or more persons on board may allow untreated sewage to be discharged in the Marine Park. These circumstances are, however, subject to the qualifications outlined in new regulation 93F.
New Regulation 93E - Discharge of treated sewage from vessels
New subregulation 93E specifies the circumstances in which the master of a vessel may allow treated sewage to be discharged in the Marine Park. These circumstances are, however, subject to the qualifications outlined in new subregulation 93F(1).
New Regulation 93F - Discharge of sewage from vessels generally
New subregulation 93F(1) clarifies that regulation 93D and paragraphs 93E(b), (c) and (d) are not taken to authorise sewage to be discharged from a vessel in the Marine Park if the vessel is inside a boat harbour, canal or marina.
New subregulation 93F(2) clarifies that regulation 93D is not taken to authorise untreated sewage to be discharged from a vessel in the Marine Park if the vessel is less than 1 nautical mile from the seaward edge of an aquaculture operation.
Item 2 omits regulation 100 from the Principal Regulations. Regulation 100 currently provides that it is an offence for a person to intentionally or negligently discharge sewage in the Marine Park, and outlines defences to that offence. As new Part 3A (see Item 1 above) makes provision for the discharge of sewage in the Marine Park, regulation 100 of the Principal Regulations is longer required.