Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 132 OF 2006)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 132

 

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

 

Great Barrier Reef Marine Park Act 1975

 

Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1)

 

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.

 

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

 

The purpose of the Regulations is to introduce a new Part 4A to the Great Barrier Reef Marine Park Regulations 1983 and to make consequential amendments to incorporate the new Part into existing permitting arrangements. Part 4A makes provision for the regulation of the conduct of both commercial and recreational users of the Great Barrier Reef Marine Park (the Marine Park) to minimise the impact of their activities on cetacean (whale and dolphin) populations in the Marine Park

 

The Regulations will be consistent with the changes to the Environment Protection and Biodiversity Conservation Regulations 2000 regulating interactions with cetaceans, which apply to the areas of the Marine Park that are part of the Australian Whale Sanctuary.  The Regulations will ensure that consistent provisions regulating interactions with cetaceans  apply throughout the Marine Park.

 

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 aim to regulate the interactions of users of the Marine Park with cetaceans in order to minimise potential human impacts on cetaceans in the Marine Park. 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 make provision for persons holding permissions to conduct research relating to cetaceans, to undertake photography, filming or sound recording of cetaceans, to conduct a tourist programs relating to cetaceans, or to operate a vessel (other than a prohibited vessel) or aircraft in support of those permitted activities, to apply for an exemption from provisions of the Regulations.

 

The Regulations make other minor amendments in order to give effect to the above.

 

The Great Barrier Reef Marine Park Authority did not undertake consultation specifically on these regulatory amendments, however extensive consultation was undertaken by the Department of Environment and Heritage in 2005 in relation to the development of the National Guidelines, upon which these Regulations are based.  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 Attachment B.

 

A Regulation Impact Statement has been approved by the Office of Regulation Review and is at Attachment C.

 

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 A

 

 

Without limiting the generality of subsection 66(1) of the Great Barrier Reef Marine Park Act 1975, regulations may be made:

 

        providing for the protection and preservation of the Great Barrier Reef Marine Park (the Marine Park) and property and things in the Marine Park (paragraph 66(2)(f));

 

        regulating the conduct of persons in the Marine Park (paragraph 66(2)(i));

 

        regulating the use of vessels in, and the passage of vessels through, the Marine Park and the landing and use of aircraft in, and the flying of aircraft over, the Marine Park (paragraph 66(2)(o)); and

 

        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 Authority in respect of such licences, permissions, permits and authorities (paragraph 66(2)(u)).

 


Attachment B

 

Details of the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1)

 

 

Regulation 1 provides that the name of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 1).

 

Regulation 2 provides that the Regulations commence the day after they are registered.

 

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

 

Schedule 1 – Amendments

 

Item [1] - Regulation 28

 

Item 1 amends regulation 28 of the Principal Regulations.

 

Regulation 28 provides a definition of “photography, filming or sound recording” for the purposes of the Great Barrier Reef Marine Park Zoning Plan 2003 (the Zoning Plan). Under the Zoning Plan, in most areas of the Marine Park photography, filming or sound recording is able to be conducted without written permission unless they have more than a negligible impact on the Park, or they occur within certain distances of cetaceans. The amendment removes that part of the definition relating to cetaceans which will no longer be required following the introduction of the approach distance provisions at Part 4A. 

 

Item [2] - After subregulation 74(6)

 

Item 2 inserts a new subregulation 74(7) into the Principal Regulations. 

 

New subregulation 74(7) specifies the matters the Authority must have regard to when considering an application for permission to enter or use a zone or designated area for the purpose of photography, filming or sound recording, or research involving cetaceans, or the conduct of a tourist program that consists of a whale watching or a swimming-with-whales activity.  These matters are in addition to the matters specified in subregulation 74(5) of the Principal Regulations.


 

Item [3] – After Part 4

 

Item 3 inserts a new Part 4A into the Principal Regulations to make provision for the regulation of interactions with cetaceans and to provide for the ability of certain persons to apply for exemptions from those provisions.

 

Regulation 117A - Definitions for Part 4A

Regulation 117A defines key terms used in Part 4A.

 

Regulation 117B - Application of Part 4A

Regulation 117B provides that Part 4A applies to a person in the Marine Park, subject to any exemptions that may be granted to that person under regulation 117K.

 

Regulation 117C – Offences in this Part

Paragraph 117C(a) provides that a person would not contravene a provision of Part 4A if they are undertaking certain activities mentioned in paragraph 231(c), (d), (e) or (f) of the Environment Protection and Biodiversity Conservation Act 1999 (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 117C(b) provides that a person would not contravene a provision of Part 4A 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 in 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.

 

Regulation 117D -  Prohibited vessel

Subregulation 117D(1) provides that this regulation applies to a person who operates a prohibited vessel in the Marine Park. The term “prohibited vessel” is defined at Regulation 117A and includes a jet ski, a parasail, hovercraft, a hydrofoil, a wing-in-ground-effect craft and a motorised diving aid, such as a motorised underwater scooter.

 

Subregulation 117D(2) provides that a prohibited vessel must not approach closer than 300 metres to a cetacean. 

 

Subregulation 117D(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 117D(4) provides that a prohibited vessel must not be used in the Marine Park for a swimming-with-whales activity or a whale watching activity.  The terms “swimming-with-whales activity” and “whale watching activity” are defined in Regulation 117A.

 

Subregulation 117D(5) provides that if a vessel is operated in a way that contravenes subregulations (2), (3) or (4), the person operating the vessel is guilty of an offence attracting a penalty of 50 penalty units. Subregulation 117D(6) provides that this offence is a strict liability offence.

 

Regulation 117E -  Other craft – adult cetaceans

Subregulation 117E(1) provides that this regulation 117E applies to a person operating a vessel in the Marine Park 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 117F relates specifically to calves. 

 

Subregulation 117E(2) specifies the manner in which a person must operate a vessel when they are within the caution zone for a cetacean.  Regulation 117A provides that the caution zone for a cetacean is an area around the cetacean of 150 metres for a dolphin and 300 metres for a whale.

 

Paragraph 117E(2)(a) provides that within the caution zone a vessel must be operated at a constant slow speed and with minimal noise.

 

Paragraph 117E(2)(b) provides that the vessel must not drift closer than 50 metres to a dolphin or 100 metres to a whale. Subregulation 117E(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 117E(4) and (5) must be complied with.

 

Paragraph 117E(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 117E(2)(d) provides that if there is more than 1 person on the vessel, a lookout for cetaceans must be posted.

 

Subregulation 117E(2)(e) makes provision for the manner by which a vessel may approach a cetacean.

 

Paragraph 117E(2)(f) provides that the vessel must not restrict the path of the cetacean.

 

Paragraph 117E(2)(g) provides that the vessel must not be used to pursue the cetacean.

 

Subregulation 117E(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 117E(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 117E(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 117E(6) provides that it is a defence to the offence at paragraph (2)(b) that the cetacean has approached the vessel.

 

Subregulation 117E(7) specifies that offences against subregulations 117E(2), (3), (4) and (5), are offences of strict liability.  The penalty for each offence is 50 penalty units.

 

Regulation 117F – Other craft – calves

Subregulation 117F(1) provides that this regulation applies to a person who is operating a vessel that is not a prohibited vessel in the Marine Park. The intent of the Regulation is to impose stricter limits on interactions with cetaceans when there is a calf present.

 

Subregulation 117F(2) provides that a person must not allow the vessel to enter the caution zone of a calf. The “caution zone” is defined in regulation 117A as 150 metres for a dolphin and 300 metres for a whale. Subregulation 117F(4) provides that it is a defence to this provision if the calf approaches the vessel.

 

Subregulation 117F(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 117(5) provides that the offences under subregulations 117F(2) and (3) are strict liability offences.

 

Regulation 117G - Aircraft

Subregulation 117G(1) provides that this Regulation applies to a person who is operating an aircraft in the Marine Park.

 

Subregulation 117G(2) specifies the distances to a cetacean 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 117G(3) provides that an offence against subregulation 117G(2) is an offence of strict liability.

 

Regulation 117H - Feeding

Subregulation 117H(1) provides that a person must not feed or attempt to feed a cetacean in the Marine Park.  The maximum penalty for a contravention of this provision is 50 penalty units.

 

Subregulation 117H(2) provides that the offence under subregulation 117H(1) is an offence of strict liability.

 

Subregulation 117H(3) provides an exception to the offence under subregulation 117H(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 117H(4) defines feed to include to throw food or rubbish into the water near a cetacean.

 

Regulation 117I - Touching and sudden movements

Subregulation 117I(1) provides that a person in the Marine Park must not touch a cetacean or make sudden movements within 2 metres of a cetacean. The maximum penalty is 50 penalty units.

 

Subregulation 117I(2) provides that the offence under subregulation 117I(1) is a strict liability offence.

 

Regulation 117J - Swimming with cetaceans

Subregulation 117J(1) provides that this regulation applies to a person who is entering the water, or in the water, in the Marine Park.

 

Subregulation 117J(2) provides that a person must not enter the water within 100 metres of a whale or within 50 metres of a dolphin. The maximum penalty is 50 penalty units.

 

Subregulation 117J(3) provides that whilst in the water, a person must not approach within 30 metres of a cetacean.

 

Subregulation 117J(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 at subregulations 117J(2), (3) and (4) are 50 penalty units.

 

Subregulation 117J(5) provides that an offence under subregulation 117J (3) or (4) is an offence of strict liability.

 

Regulation 117K -  Exemption regarding application of this Part

Regulation 117K provides for the giving by the Authority of an exemption from a particular provision or provisions of Part 4A where a person applying for or holding a permission that relates to cetaceans will require that exemption to lawfully undertake the activity they have been or may be permitted to do. An exemption issued by the Authority will also be recognised as an exemption against the similar offence provisions at Part 8 of the Environment Protection and Biodiversity Conservation Regulations 2000.

 

Subregulation 117K(1) provides that the Authority may on application from a person holding a relevant permission to undertake research in relation to cetaceans, to undertake photography, filming or sound recording of cetaceans, to conduct a tourist program that consists of a swimming-with-whales activity or a whale watching activity, or to operate a vessel (other than a prohibited vessel) or aircraft in the Marine Park grant a written exemption from any or all of the provisions of Part 4A (other than regulation 117B). 

 

Provision is also made for the giving of exemptions to persons conducting tourist programs relating to cetaceans that will apply to the tourists participating in those programs. For instance, such an exemption would enable tourists participating in a swimming-with-whales activity to enter the water at closer than 100 metres to the cetacean.

 

Subregulation 117K(2) provides that the exemption may provide that it applies in the circumstances and subject to the conditions set out in the exemption.

 

Subregulation 117K(3) clarifies that the Authority may vary, add or reduce conditions attaching to an exemption.

 

Subregulation 117K(4) provides that an exemption can only be granted to a permission holder in relation to the use of a vessel or aircraft, where the vessel or aircraft is being used to support activities that relate to cetaceans. Those activities are specified at paragraphs 117K(1)(a), (b) and (c).

 

Subregulation 117K(5) further clarifies that an exemption issued to the permission holder in relation to the use of a vessel or aircraft is only of effect whilst the vessel or aircraft is operating in support of those activities in the Marine Park.

 

Subregulation 117K(6) provides that an exemption only continues in force whilst the relevant permission to which it relates is in force, and if the exemption covers tourists, it only covers the tourists whilst the tourists are participating in the relevant tourist program.

 

Subregulation 117K(7) provides a definition of “holder of an exemption” for the purpose of this regulation. The holder of an exemption is a person that holds a relevant permission and is granted an exemption under subregulation 117K(1).

 

Regulation 117L - Application for exemption

Subregulation 117L(1) makes provision for a person that is the holder of a relevant permission, or has applied for a relevant permission, to apply for the grant of an exemption under subregulation 117K(1).

 

Subregulation 117L(2) prescribes the information the applicant must provide in making an application for an exemption.

 

Subregulations 117L(3) and (4) prescribe further information that must be provided if the application relates to the operation of a vessel or aircraft.

 

Subregulation 117L(5) provides that an application is not invalid only because it does not include all of the information required, except in relation to information that the Authority has directly asked the applicant to provide (refer to subregulation 117L(2)(e)).

 

Subregulation 117L(6) prescribes the matters that the Authority must take into account in deciding whether to grant or to refuse to grant an exemption. These matters are consistent with matters the Authority must consider in relation to applications for permissions and include whether the holder of a chargeable permission has any overdue charge, collected amount or penalty amount. 

 

Regulation 117M – Transitional arrangement – exemption under 117K(1)

Regulation 117M provides a transitional arrangement for persons holding relevant permissions from the Authority to conduct whale watching and swimming–with-whales activities in the Marine Park. This exemption will enable tourists participating in a swimming-with-whales activity to enter the water at 30 metres to a cetacean, as is the current practice, rather than the required 100 metres under subregulation 117J(2). It is expected that the tourist operators requiring this exemption beyond the 60 day period will apply for an exemption and have their application processed within that period.

 

Item [4] – Paragraph 183(1)(h)

Regulation 183 of the Principal Regulations provides that the Authority must publish in the Gazette a notice of certain decisions. Item [4] inserts a requirement for the Authority to publish notice of decisions relating to applications for exemptions under Part 4A.

 

Item [5] – Paragraph 184(1)(a)

Regulation 184 of the Principal Regulations provides that a notice of a decision under regulation 183 must state that the person whose interests are affected by the decision may obtain a statement of reasons for the decision and may ask the Authority to reconsider the decision. Item [5] inserts into this list a decision regarding an application for exemption under subregulation 117K(1).

 

Item [6] – After subregulation 185(4)

Regulation 185 of the Principal Regulations provides a list of decisions in relation to which a person whose interests are affected by the decision may apply to the Authority for a reconsideration of the decision. Item [6] inserts a decision relating to an application for an exemption under regulation 117K(1) into this list. Once a decision listed in regulation 185 is reconsidered, a person may apply to the Administrative Decisions Tribunal for a review of the reconsidered decision.

 


Attachment C

 

Regulation Impact StatementReef-wide regulations for interacting with cetaceans and whale watching in the Great Barrier Reef Marine Park

 

INTRODUCTION

The Great Barrier Reef Marine Park Authority (GBRMPA) is responsible for ensuring the protection and conservation of the Great Barrier Reef, and has obligations regarding the maintenance and enhancement of the values of the Great Barrier Reef World Heritage Area (GBRWHA).

 

The stated Aims of the GBRMPA include protecting the natural qualities of the Great Barrier Reef (GBR) while providing for reasonable use of the Reef Region, and minimising regulation of, and interference in, human activities, consistent with the Goal[1] and other Aims of the GBRMPA. The GBRMPA is responsible for managing the Great Barrier Reef Marine Park (GBRMP) including the conservation of whales and dolphins. This is achieved through managing human activities that impact on cetaceans including both current activities and predicted future activities.

 

THE PROBLEM

Currently Queensland (State) regulations that control interactions with cetaceans including whale watching cover the State waters of the GBRWHA (essentially from mean low water to mean high water). These regulations are contained in the Nature Conservation (Whales and Dolphins) Conservation Plan 1997 and can be viewed at http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/N/NatureConWhaleP97_01_.pdf.

 

The Commonwealth Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations) for interacting with cetaceans and whale watching apply in the Australian Whale Sanctuary (AWS) portions of the GBRMP. The AWS excludes State coastal waters (i.e. 3 nautical miles from the coast or any island). The GBRMP extends from the mean low water and therefore, includes most of that 3 nautical mile area.

 

Thus, there is a portion of the GBRMP where there are no State or Commonwealth regulations in force for managing human interactions with cetaceans, including whale watching and swimming-with-whales activities.

 

OBJECTIVES

As stated in the GBRMPA’s Whale and Dolphin Conservation Policy, adopted in February 2000, the Authority’s objective is to manage human activities that will, or are likely to, affect the whale and dolphin populations in the GBRMP so as to ensure their conservation and, where necessary, recovery.

 

The objectives of GBR-wide regulations controlling interactions with cetaceans including whale watching are to ensure (1) complementarity with Commonwealth regulations for interacting with cetaceans, including whale watching (e.g. EPBC Regulations 2000); and (2) ease of user and enforcement management staff understanding of the GBRMP.

 

OPTIONS

Option 1 – maintain the status quo.

 

Option 2 – amend the Great Barrier Reef Marine Park Regulations 1983 to introduce provisions regulating interactions with cetaceans that mirror the provisions relating to cetaceans in the EPBC Regulation. This would enable the extension of those regulations to the areas that lie outside of the AWS but within the GBRMP.

 

Option 3 – proclaim Queensland waters as part of the AWS. This would enable the provisions relating to cetaceans within the EPBC Regulation to operate within all waters off the coast of Queensland, including the whole of the GBRMP.

 

IMPACT ANALYSIS

By maintaining the status quo, there would continue to be, in essence, three sets of ‘rules’ in the GBRMP:

      Queensland State regulations that apply to human whale watching activity from mean high tide to mean low tide,

      No regulations applying within the GBRMP from mean low tide to 3 nautical miles from the coast or islands;

      Commonwealth regulations that apply to the AWS seawards of the 3 nautical mile limit governing interactions with cetaceans including whale watching.

 

Extending Commonwealth regulations to that area of the GBRMP not covered by the AWS will ensure consistency and complementarity with the cetacean regulatory regime in the rest of the GBRMP area, and will give greater certainty to Park users about their rights and legal obligations. The change is expected to have little practical impact on the majority of Park users, as they have historically been required to abided by the EPBC regulations relating to interactions with cetaceans when operating within the GBRMP as those regulations apply over the AWS portion of the Park.

 

The Commonwealth Government has, in the past, rejected the need to resolve issues of a similar nature by prescribing Queensland waters.

 

In order to comply with the Regulations, the businesses that will be affected (tourism operators) will need to become aware of the new Regulations and therefore will face the one-off cost of acquiring the knowledge to meet their regulatory obligations in relation to their interactions with cetaceans. It is considered that this cost will be minimal.

 

The GBRMPA will implement a communication strategy for making sure Reef users are aware of the Regulations and how they should behave on the water. Part of this strategy is the production of information flyers, posters, newspaper and newsletter articles, and a series of workshops along the Great Barrier Reef coast with the tourism industry. Tourism operators on the GBR will be able to access information about the Regulations at no cost to them through the GBRMPA’s website and via mail outs that will be sent to them by GBRMPA such as the GBRMPA’s Tourism Operator’s Handbook, and other public awareness products.

 

In addition, the tourism industry already has to comply with existing EPBC Regulations regarding interactions with cetaceans and they therefore generally already have an awareness of regulatory obligations in relation to this area. As the EPBC Regulations vary little to the GBRMP Regulations, and the few minor differences will be communicated to the tourist operators by the GBRMPA, the industry will face minimal additional cost in complying with these Regulations.

 

CONSULTATION

The main affected parties are all users of the GBRMP who may interact with cetaceans especially certain categories of commercial tour operators and conservation groups. There is general support for the present regulations as evidenced by consultation with stakeholders in the preparation of the policy on Whale and Dolphin Conservation in the Great Barrier Reef Marine Park (2000) and also the recent two phases of consultation by the Department of the Environment and Heritage as part of reviewing the National Guidelines for Whale and Dolphin Watching (“National Guidelines”) (see below).

 

There has been no consultation regarding the amendments to the Great Barrier Reef Marine Park Regulations 1983 (“the GBRMP Regulations”) as the Regulations are considered to be an administrative change required for consistency. As noted above, park users have generally abided by the EPBC regulations so there is no reason to believe that this would change as a result of the extension.


GBRMPA Policy

Preparation of the Whale and Dolphin Conservation in the Great Barrier Reef Marine Park 2000 policy involved extensive consultation (in 1998 and 1999) with users of the GBRMP, interest groups, institutions and government agencies. Initially, meetings were held with government agencies and scientists to identify relevant issues to be considered in the policy. A preliminary version of the policy was then distributed to 20 experts, including scientists, Queensland and Commonwealth government officers and representatives of interest groups and stakeholders. As a result of the 15, largely supportive, submissions that were received, changes were made and a public draft of the policy was issued. The draft policy was mailed to over 150 individuals and organisations. It was also advertised in the “Reef Research” newsletter of the GBRMPA that was mailed to 1700 individuals and institutions, and was made available on GBRMPA’s website. Thirty-six submissions were received, again mostly supportive. Further changes to the policy were made as a result of the submissions before a final round of consultation with government agencies and tourist operators regarding the proposed definitions of commercial whale watching and swimming-with-whales activities. Two additional submissions on the matter were received, and some definitions in the policy were modified following consideration of those submissions.

 

DEH National Guidelines

Extensive opportunities for public involvement in the review of the National Guidelines were made available by DEH through:

1.      an opportunity to comment on a discussion paper that outlined the main issues associated with the review. This was made available for public comment for approximately one month (June-July 2005) and 32 written submissions were received;

2.      the hosting of six open forums around the country during June-July 2005. Approximately 100 people attended these forums which were held in Queensland (Cairns, Hervey Bay and the Gold Coast); New South Wales (Port Stephens); Western Australia (Perth); and Victoria (Melbourne); and

3.      an opportunity to comment on a draft of the guidelines. The draft guidelines were made available for comment for one month (September 2005) and 19 submissions were received.

 

General comments received from public submissions

There was general support for the draft guidelines. This included positive feedback about the structure, focus and detail of the guidelines.

 

In addition to comments on the guidelines, the majority of respondents wanted to see the development of a consistent national licensing system for the whale and dolphin watching industry. The overwhelming majority view was that all whale and dolphin operators should be regulated under a consistent national licensing system and that regulation is ineffective without active enforcement. There were several suggestions as to how best effect this including:

          licensing by the relevant state or commonwealth management authority; and

          joint licensing arrangements between state and commonwealth agencies.

 

There was a strong emphasis on the need for an educational component to any licensing or regulatory regime.

 

Response: Within the Great Barrier Reef Marine Park, all tourism programs require the Authority’s permission, including those programs that focus on whale watching. The GBRMPA has joint permitting arrangements already in place with the Queensland Environmental Protection Agency/Queensland Parks and Wildlife Service and will continue to grant joint permits for whale watching.

 

Introduction

There was a general support for a two tiered approach to the guidelines – where Tier 1 sets the minimum national standards and Tier 2 establishes additional management considerations for certain activities or areas. Several comments were made requesting clarification about the application and scope of the Tier 2 provisions.

 

Response: This has occurred in the final approved guidelines.

 

Other comments included:

          ‘commercial whale watching’ should be defined; and

          the prohibition on the public approaching distressed animals unless under authorisation does not allow for rescues to happen by the public when the relevant agencies are not available.

 

Response: These issues were further clarified in the final approved guidelines.

 

Vessels

Approach distances

There was general agreement in relation to the proposed distances for whales. However, many of the respondents were concerned that should these distances (300m caution zone and 100m no approach zone) also be applied to dolphins this would lead to difficulties for the industry and not offer any additional protection to dolphins. The majority of comments in relation to this matter suggested that the current provisions for dolphins were appropriate (150m caution zone and 50m no approach zone).

 

Response: The guidelines were revised to maintain the 150m caution zone and 50m no approach zone in respect of dolphins.

 

Number of boats within the caution zone

The majority of respondents were satisfied that the limit of 3 boats in the caution zone for whales and dolphins was adequate, although a number suggested that 2 would be more appropriate.

 

Response: The guidelines maintained the limit of 3 boats in the caution zone.

 

Bow riding

There was a general consensus that the guidelines should include advice on how to respond to bow riding. There were a number of different views expressed on bow riding including:

          the guidelines should prohibit recreational vessels from encouraging bow riding; and

          if bow riding occurs the vessel should maintain a steady course and speed.

 

Response: The guidelines provide advice on how to respond to bow riding by suggesting the vessel should maintain a steady course and speed.

 

Aircraft

The majority view was that the current guidelines for aircraft are sufficient. However, several respondents were concerned about the proposal to allow helicopters to 500m and suggested that they should only be allowed to 1000m.

 

Response: The scientific evidence available indicated that allowing helicopters to fly to 500m above a whale would not negatively impact upon the whales. As such, no changes were made and the 500m distance remained in the final guidelines.

 

Swimming and diving

There was a majority view that swimming and diving with whales and dolphins should be prohibited unless under an authorised swimming program.

 

A number of other comments were made in relation to swimming. These included:

          swimming with calves should be prohibited and reference to ‘very young calves’ should be changed to ‘calves’;

          swimming distances for whales and dolphins should be increased to at least 50m; and

          there were various comments about the use of mermaid lines and boom nets for swimming. A number of people felt that these procedures should be mandatory, while others considered that they should be operation specific.

 

Response: The term ‘very young calves’ was changed to ‘calves’ and defined in the guidelines. Swimming distances were maintain at the proposed 30m distance.

 

Other sections

There were no major comments about the provisions relating to land based whale and dolphin watching, feeding, touching or noise.

 

CONCLUSION AND RECOMMENDED OPTION

The Authority recommends amending the GBRMP Regulations to insert provisions regulating interactions with cetaceans that will apply to the GBRMP and that will be consistent with the National Guidelines and the EPBC Regulations.

 

IMPLEMENTATION AND REVIEW

The proposed amendments to the GBRMP Regulations will be implemented through normal regulatory processes.

 

The changes will be communicated to the public and all relevant industry people through:

        Public notices advising of the amendments to the GBRMP Regulations;

        Regulations will be available through the GBRMPA website; and

        Brochures and other extension activity to all and other interested people/organisations.

 

The Authority will monitor the impact of the proposed changes on an ongoing basis.

 



[1] To provide for the protection, wise use, understanding and enjoyment of the Great Barrier Reef in perpetuity through the care and development of the Great Barrier Reef Marine Park.


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