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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2005 (NO. 3) (SLI NO 309 OF 2005)
EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 309
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 2005 (No. 3)
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)(u) of the Act provides that regulations may be made providing for the grant or issue of licences, permissions, permits and authorities, the conditions subject to which they are granted or issued and the charging of fees by the Great Barrier Reef Marine Park Authority (the Authority) in respect of such licences, permissions, permits and authorities.
In August 2003, the Authority adopted the Managing Tourism Permissions to Operate in the Great Barrier Reef Marine Park (including Allocation, Latency and Tenure) Policy (the Policy). Part C of the Policy sets out the process for applying for and granting special tourism permissions. A special tourism permission allows the holder to conduct a tourist program or an activity under a tourist program in the Great Barrier Reef Marine Park (the Marine Park) where the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) or a Plan of Management has imposed a limit on the number of such permissions that may be granted by the Authority.
The Regulations implement this aspect of the Policy by establishing a process in the Principal Regulations for the application for, and granting of, a special tourism permission.
Tourism operations are primarily affected by the Policy and consultation occurred with members of the tourism industry, as well as other stakeholders, during the consultation phase.
Since the approval of the Policy, the Authority has continued to consult with these stakeholders regarding the implementation of the Policy, including these Regulations. This consultation has included providing information to stakeholders through the Tourism & Recreation Newsletter and Permits Information Bulletins (these documents are provided to all permit holders). In addition, the Tourism and Recreation Reef Advisory Committee (a consultative body to the Authority on tourism and recreation issues) has been consulted with respect to these Regulations. The stakeholders are supportive of the Regulations.
A Regulation Impact Statement supporting the Regulations was approved by the Office of Regulation Review on 10 December 2003. A copy of the Regulation Impact Statement is included at Attachment A.
Details of the Regulations are set out in the Attachment B.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
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 on the Federal Register of Legislative Instruments.
ATTACHMENT A
ALLOCATION OF SPECIAL TOURISM PERMISSIONS IN THE GREAT BARRIER REEF MARINE PARK BY EXPRESSIONS OF INTEREST
The Great Barrier Reef Marine Park (the Marine Park) is a Commonwealth marine protected area adjacent to the Queensland coast. It is managed by the Great Barrier Reef Marine Park Authority (GBRMPA) in accordance with the Great Barrier Reef Marine Park Act 1975 (the Act) and the Great Barrier Reef Marine Park Regulations 1983 (the Regulations).
Zoning Plans (provided for in the Act) provide for the GBRMPA to assess and grant tourism permissions. Plans of Management (provided for in the Act) may set out more detailed management arrangements. The GBRMPA is responsible for the permitting of tourism use in the Marine Park, ensuring that such use is ecologically sustainable.
One strategy employed to ensure that tourism use in the Marine Park is ecologically sustainable is to place a ‘cap’ or limit on the availability of certain tourism opportunities. Such opportunities may include the ability to anchor regularly in an area, the ability to visit environmentally sensitive sites and the ability to undertake activities involving vulnerable species. Any such limits or ‘caps’ are established through regulation or a plan of management. At that time there is extensive community consultation, the impact of the regulatory change is assessed and there is the opportunity to prepare a Regulation Impact Statement.
‘Special tourism permissions’ that allow for these limited tourism opportunities are highly valued by the tourism industry as they provide access to popular tourism areas to undertake tourism activities that are not routinely granted to operators.
1. ISSUE/OBJECTIVE
In fulfilling its statutory management responsibilities, the GBRMPA may from time to time regulate the type and number of tourism activities that may be undertaken. Permission to undertake these limited or ‘capped’ activities is granted through a special tourism permission.
The overall objective of government action is to allocate spare or new special tourism permissions in an efficient and equitable manner that ensures the best outcomes for the Marine Park and fosters a competitive and sustainable marine tourism industry.
2. OPTIONS
In considering a policy to allocate spare and new special tourism permissions, the GBRMPA considered three options: by expression of interest, by auction and by consideration of existing use.
3. IMPACT ANALYSIS
The special tourism permissions currently available for allocation are focussed in the Cairns Area and the Whitsundays (the two primary tourism areas). Fifteen special tourism permissions are available in each area. It is expected that, as tourism use of the Marine Park increases, other activities will be capped and those special tourism permissions will also need to be allocated. In addition, there will be some already existing special tourism permissions that progressively become available for reallocation.
The Great Barrier Reef marine tourism industry has consistently sought an equitable and efficient means to allocate new or spare special tourism permissions. Allocation of such permissions is likely to result in new and expanded tourism operations in high demand areas, with flow-on effects to local communities and tourists visiting the region.
The following analysis of the impacts of each option is primarily based on comments and information received from Great Barrier Reef tourism operators, tourism associations, the Queensland Government and the GBRMPA’s Tourism and Recreation Reef Advisory Committee. There have been a number of avenues for input and comment (see ‘Consultation’).
An expression of interest process benefits industry because it is a transparent and fair process where an operator can compete for the opportunity and demonstrate they are the best applicant, both environmentally and financially. Industry can be involved in determining the basis on which the most suitable applicant will be judged and, because ‘best value’ is considered, it is likely that existing special tourism permissions will not be ‘devalued’. However, preparing the expression of interest may require additional resources from individual operators.
Allocation by auction provides many similar benefits to the industry, however some industry members have expressed concern that the monetary power of larger operations may displace small local operations and that allocation by auction does not provide an opportunity for operators to demonstrate superior ecological sustainability.
Allocation based on existing use would mean that it is difficult for new operators to take up the tourism opportunity or for existing operators to expand and there is no opportunity for industry to compete for the permissions.
From a government perspective, an expression of interest process encourages the most efficient and effective operators (in terms of operating standards and financial contributions to the Marine Park), fosters competition and innovation, and allows a monetary return which can be used in management of the Marine Park.
Allocation based solely on auction also fosters competition and provides a monetary return to Marine Park management, but it does not allow consideration of the ecological sustainability of each proposed operation.
The option of allocation based on existing use cannot be applied where there is more existing users than prescribed in the limit, it is difficult to administer where there is an unclear history of use, and it does not address the allocation of previously unused limited opportunities. In addition, the lack of a competitive process means there is no ability to ensure best value for the Marine Park or to foster a competitive and sustainable marine tourism industry.
From the perspective of the wider Australian community, there are benefits in those options that ensure long-term ecological sustainability for the Great Barrier Reef Marine Park and allow a net return on commercial use of a public resource.
In summary, with an expression of interest process to allocate special tourism permissions, there would appear to be a net gain for business, the community and the government. Generally, the costs involved in the process are borne by the parties who are likely to benefit. The broader community benefits through increased tourism trade and best possible outcomes for ecological sustainability in the Marine Park.
With allocation by auction, there would appear to be less overall gain. The price tendered at the auction is borne by the applicant who will gain the benefit for use of the special tourism permission. However, higher standard operators with less financial resources will suffer. In addition, there is a possible net loss to the broader community, as the ecological sustainability of the permitted operation is not optimised.
Allocation based on existing use, does not deliver as many benefits. Existing operators derive a benefit from the opportunity but the benefits to the Marine Park and the community are not optimised. There is no opportunity for others to enter the market.
Assumptions:
4. CONSULTATION
The policy of allocation by expression of interest and its implementation have been developed in close consultation with the Queensland Government (particularly the Queensland Parks and Wildlife Service (QPWS) with whom the GBRMPA has a joint permitting arrangement) and the Great Barrier Reef marine tourism industry.
The expression of interest process is based on advice the GBRMPA received in 2002 from its Tourism and Recreation Reef Advisory Committee. Industry response to this proposal was tested in April 2002 when the GBRMPA and the Association of Marine Park Tourism Operators circulated a joint questionnaire. The comments generally supported an expression of interest system with qualifying criteria, providing that small operators were not disadvantaged and that financial considerations did not override existing operators’ intellectual property. The joint GBRMPA/QPWS draft policy was released for public comment on 21 March 2003 and a number of meetings were held with industry groups. Again, an expression of interest process was recognised as the most suitable way to ensure fairness and ecologically sustainable operations. The Board of the GBRMPA took into consideration the comments received before adopting the expressions of interest process.
5. CONCLUSION AND RECOMMENDED OPTION
The GBRMPA adopted the expression of interest process because it allows assessment of who will deliver the best outcome for the Marine Park both in terms of ecological sustainability and contributions to management. An expression of interest process fosters competition, identifies operators who most value the tourism opportunity, encourages innovation and improves efficiency. In addition, the direct financial contribution can be positive for industry because it can support the value that existing special tourism permissions may have in the open market.
Although allocating special tourism permissions by auction is a transparent method for allocating access, it does not provide any ability to judge those applicants who are likely to return best value to the Marine Park in terms of ecological sustainability. Likewise, basing allocation on historic use alone does not judge the ecological sustainability of the operation, nor overall best value to the Marine Park.
6. IMPLEMENTATION
The options for implementing the expression of interest approach are:
Option 1. Proceed without supporting regulations. Permit applications generated as a consequence of an expression of interest process continue to be assessed against the assessment criteria, taking guidance from the policy on managing tourism permissions.
Option 2. Make a minor amendment to the Regulations to limit the types of applications and appeals that the GBRMPA must consider as a consequence of an expression of interest process.
Option 3. Make a significant amendment to the Regulations to describe in detail the expression of interest process outlined in the policy.
Option 1 presents some significant costs to both industry and the GBRMPA. There is likely to be costs to the GBRMPA in defending decisions to refuse applications that either do not adequately address the selection criteria or that are made after the nominated closing date. In addition, the process will be significantly slowed or made unworkable by third party appeals from unsuccessful applicants and there will be a consequent inability for the marine tourism industry to access high demand opportunities.
Options 2 and 3 provide benefits to both the industry and the GBRMPA. They would result in a clearly defined, streamlined generic allocation process where decisions can be made in a timely manner and tourism opportunities delivered.
The costs of Options 2 and 3 would only exist for third parties that feel aggrieved at the outcome of the expression of interest process. There would also be some cost to the GBRMPA in seeking the necessary regulation amendment (more so for Option 3).
There is no difference between the implementation options in terms of the ‘paper burden’ to operators and compliance costs.
The GBRMPA’s preferred approach is to make some minor amendments to the Regulations to limit the types of applications and appeals that the GBRMPA must consider in conducting an expression of interest process (Option 2). Option 1 exposes the GBRMPA to a number of risks and is less likely to result in the efficient and timely allocation of these high demand tourism opportunities. Option 3 delivers some efficiency to the GBRMPA and greater certainty to the marine tourism industry, however it requires a more significant regulatory amendment, which is considered unwarranted at this time.
Implementation of the expression of interest process will require development of selection criteria against which to rank applications. It is not intended to place these in Regulation, but they will be publicly specified at the beginning of each allocation process. Early proposals include consideration of relevant experience and knowledge; the extent to which operating procedures will enhance protection and presentation of Marine Park values; value of contribution to partnerships that assist management of the Marine Park; and amount of direct financial contribution to Marine Park management. The criteria may be made more specific for particular tourism opportunities, or there may be additional criteria required in some cases.
Comments on suitable criteria have been sought from members of the Tourism and Recreation Reef Advisory Committee and other stakeholders. The criteria will be finalised once comments have been received.
7. REVIEW
The GBRMPA maintains open and effective communication with the tourism industry, especially through the peak body (Association of Marine Park Tourism Operators), individual associations, and the Tourism and Recreation Reef Advisory Committee.
The effectiveness of the expression of interest process and the selection criteria used will be assessed by the demonstrated industry interest in advertised special tourism permissions, feedback from participants in those processes and advice from tourism associations, the Association of Marine Park Tourism Operators and the Tourism and Recreation Reef Advisory Committee.
The need for regulations to support the allocation system is ongoing, and there is no intention to include in the regulations a revocation provision or ‘sunset’ clause.
ATTACHMENT B
Details of the Great Barrier Reef Marine Park Amendment
Regulations 2005 (No. 3)
This regulation provides that the title of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2005 (No. 3).
This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Amendment of Great Barrier Reef Marine Park Regulations 1983
This regulation provides that the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) are amended as set out in Schedule 1.
Item [1] – Subregulation 3(1), after definition of relevant permission
This item inserts a definition of special tourism permission into subregulation 3(1) of the Principal Regulations.
Item [2] – After subregulation 77(3)
This item inserts new subregulations 77(3A), 77(3B) and 77(3C) into the Principal Regulations.
With respect to a relevant permission to conduct a tourist program, or a relevant permission for the installation or operation of a facility (for example, a pontoon or mooring) that is operated in associated with such a tourist program, new subregulation 77(3A) allows the Great Barrier Reef Marine Park Authority (the Authority) to impose a condition on a permission, or vary an existing condition, without the consent of the permission holder. However, this may only be done in circumstances:
(a) other than those to which subregulation 109(2) or (3) or 110(1) of the Principal Regulations applies;
(b) where the Authority has given the permission holder written notice of its intention, and has had regard to any written response made by the permission holder; and
(c) where the condition, or amended condition, is appropriate to the attainment of the objects of the Great Barrier Reef Marine Park Act 1975.
New subregulation 77(3B) provides that the Authority must allow a period of at least 28 days for the condition, or amended condition, referred to in new subregulation 77(3A), to take effect.
New subregulation 77(3C) clarifies that the condition notified by the Authority under new subregulation 77(3B) may be a modification of the initial proposal if the modification is the result of the Authority having regard to the submission made by the permission holder under new paragraph 77(3A)(a).
This item inserts a new Division 2.6 (Allocation of limited relevant permissions) into the Principal Regulations. The purpose of new Division 2.6 is to set out the process that the Authority must follow for the allocation of limited relevant permissions, including special tourism permissions.
This item also inserts new regulations 88A, 88B and 88C into the Principal Regulations as follows:
New Regulation 88A – Application for special tourism permission
Subject to new regulation 88C, new subregulation 88A(1) specifies that in addition to the requirements and procedures applicable to a relevant permission under Division 2.3 of the Principal Regulations, new regulation 88A also applies to the application for, and granting of, a special tourism permission.
New subregulation 88A(2) requires the Authority to invite applications for special tourism permissions by publishing a public notice and sets out the information that must be contained in that notice.
New subregulation 88B(1) places limitations on the types of applications under new regulation 88A that the Authority can consider with respect to the grant of a special tourism permission. In this regard, the Authority is only to consider applications that are made in a form approved by the Authority, received within the time set out in the notice referred to in new subregulation 88A(2), and are accompanied by the application lodgement fee, being $250 (see Item [6] below).
New subregulation 88B(2) clarifies that the Authority must have regard to the criteria set out in the public notice issued under new subregulation 88A(2) when considering an application for a special tourism permission.
New subregulation 88B(3) specifies that the Authority can refuse to consider an application further if, in the opinion of the Authority, it does not satisfy one or more of the criteria set out in the notice referred to in new subregulation 88A(2).
New subregulation 88B(4) clarifies that the Authority may rank any applications received in order of merit, and may rank by ballot any applications of equal merit in situations where the Authority receives more applications than there are special tourism permissions available for allocation.
New subregulation 88B(5) requires the Authority to then assess the applications that have been ranked under new subregulation 88B(4) in order from the most highly ranked to the least. The assessment of these applications is to be conducted in accordance with subregulation 74(5) of the Principal Regulations (this subregulation outlines the matters to which the Authority must have regard when considering an application for a relevant permission).
New subregulation 88B(6) clarifies that once all the available special tourism permissions mentioned in new subregulation 88A(2) have been granted, the Authority must refuse any remaining applications, including any applications remaining in the ranking order.
New Regulation 88C – Relevant permissions to which this Division does not apply
Subject to new subregulation 88C(2), new subregulation 88C(1) clarifies that this new Division does not apply to an application by a person for a special tourism permission to replace a special tourism permission of the same kind that has been granted to that person, provided that the application is made before the expiry of that permission.
New subregulation 88C(2) provides that the Authority may treat an application under new subregulation 88C(1) as having been made before the expiry of the relevant special tourism permission if the Authority considers special circumstances put forward by the Applicant in writing justify its doing so.
In this regard, although new subregulation 88C(2) enables the Authority to treat an application as having been made before the expiry of the relevant permission, until such time as a decision is made by the Authority to grant the new special tourism permission, the holder of the permission will not have a permission to operate in the Great Barrier Reef Marine Park.
New subregulation 88C(3) clarifies that an application by a person for the transfer of a special tourism permission under regulation 106 of the Principal Regulations is also not subject to this new Division.
Item [4] – Subregulation 109(7)
This item substitutes subregulation 109(7) of the Principal Regulations with a revised subregulation 109(7). The purpose of this item is to clarify that an action taken by the Authority under subregulation 109(2) or 109(3) of the Principal Regulations to suspend a permission ceases to apply 28 days after the day on which the action was taken.
Item [5] – Subregulation 112(4)
This item substitutes subregulation 112(4) of the Principal Regulations with a revised subregulation 112(4). The purpose of this item is to clarify the time limit within which the holder of a permission referred to in paragraph 112(2)(a) of the Principal Regulations (being a relevant permission, a permission to carry on a prescribed activity in the unzoned area, or a permission for the discharge of waste) must begin to carry on the permitted activity in the Great Barrier Reef Marine Park.
Item [6] – Subregulation 134(1), table, after item 3
This item inserts a new item into table 134 of the Principal Regulations. The purpose of this item is to specify, for the purposes of new paragraph 88A(2)(d), the amount of the application lodgement fee that must accompany applications for special tourism permissions. The application lodgement fee for such an application is $250.
Item [7] – Paragraph 183(1)(g)
This item is of a technical nature only and is required as a consequence of Item 8 below.
Item [8] – After paragraph 183(1)(g)
This item inserts a new paragraph 183(1)(h) into the Principal Regulations. The purpose of this item is to specify that the Authority must publish in the Gazette a notice of its decision under new subregulation 77(3A) to impose a condition on, or vary an existing permission of, a relevant permission.
Item [9] – Paragraph 185(1)(b)
This item inserts a reference to new paragraph 183(1)(h) into subregulation 185(1) of the Principal Regulations. This is a technical amendment required as a result of Item [8]. The purpose of this item is to clarify that a person whose interests are affected by a decision of the Authority under new subregulation 77(3A) to impose a condition on, or vary an existing condition of, a relevant permission, may ask the Authority to reconsider the decision.