EXPLANATORY STATEMENT

Select Legislative Instrument 2006 No. 267

 

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 2006 (No. 2)

 

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)(b) of the Act provides that regulations may be made providing for giving effect to, and enforcing the observance of, zoning plans, and paragraph 66(2)(i) provides that regulations may be made regulating the conduct of persons in the Great Barrier Reef Marine Park (the Marine Park).

 

The purpose of the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 2) (the Regulations) is to enhance the effective enforcement of fishing restrictions in the Great Barrier Reef Marine Park Zoning Plan 2003 (the Zoning Plan). The Zoning Plan is the primary planning instrument for the conservation and management of the Marine Park. The Zoning Plan divides the Marine Park into zones, and makes provision for the purposes for which each zone may be used or entered with or without permission. The Act and the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) each contain offence provisions relating to breaches of provisions contained within the Zoning Plan.

 

The Zoning Plan provides that limited line fishing is permitted in the Conservation Park Zone of the Marine Park. Limited line fishing is defined as fishing by a person using no more than 1 hand-held rod or handline and no more than 1 hook attached to that line. Previously, a breach of this provision constituted an offence under the Act. The Regulations introduced a similar offence provision into the Principal Regulations. This new offence attracts a maximum penalty of 50 penalty units and will be an infringement notice offence to the value of 4 penalty units allowing the issue of an on-the-spot fine of $440. It is considered that the ability of enforcement officers to issue on the spot fines for this offence will aid the day-to-day enforcement of this provision.

The Zoning Plan provides that fishing is not permitted in certain Zones of the Marine Park, such as the Marine National Park Zone, Scientific Research Zone and the Preservation Zone. Dories are not permitted to be detached from their primary commercial fishing vessel in non-fishing areas of the Marine Park except in circumstances such as emergency. Previously, liability was only placed on the persons found within the dory at the time that the dory was detached from the primary commercial fishing vessel. The Regulations introduce an offence provision that places liability on persons associated with a primary commercial fishing vessel, such as the master of the vessel and permission holders in relation to the vessel.

 

The Zoning Plan provides for limited fishing in certain zones of the Marine Park. These zones are the Buffer Zone and the Conservation Park Zone. In these zones, only one dory can be detached from its primary commercial fishing vessel. The Regulations introduce new offence provisions which place liability on the master of a primary commercial fishing vessel, the permission holder in relation to that vessel, and persons in the unattached dories, where more than one dory is detached from its primary commercial fishing vessel in these limited fishing areas.

 

The Regulations also make minor amendment to the definition of “fishing or collecting” in the Principal Regulations by deleting irrelevant references to dories..

 

The Great Barrier Reef Marine Park Authority did not undertake consultation specifically on the proposed Regulations. The Office of Regulation Review confirmed that a Regulation Impact Statement was not required as the amendments were of a minor or machinery nature and do not substantially alter existing arrangements. A copy of that advice is at Attachment A.

 

Details of the Regulations are set out in Attachment B.

 

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

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Attachment

 

 

Regulation 1 provides that the name of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2006 (No. 2).

 

Regulation 2 provides that the Regulations commence on 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 15

Item 1 amends regulation 15 by removing that part of the definition of fishing or collecting that relates to dories. Paragraph 15(2)(b) currently provides for limitations relating to dories and subregulation 15(3) provides exceptions to those limitations. However, other provisions in the Principal Regulations also provide for the same limitations and exceptions, and consequently the definitions relating to dories at regulation 15 are not required.

 

Item [2] – After regulation 73

Item 2 inserts new regulations 73A to 73J in a new Division 2.2A of the Principal Regulations. These regulations are offence provisions relating to unattached dories in non-fishing or limited fishing zones of the Marine Park.

 

Regulation 73A – Definitions for Division

Regulation 73A defines key terms used in Division 2.2A.

 

Regulation 73B – Conservation Park Zone – fishing offence

Subregulation 73B(1) provides that it is an offence for a person to fish in a Conservation Park Zone using more than 1 hand-held rod or handline and 1 hook attached to that line without the written permission of the Authority. The maximum penalty is 50 penalty units. A penalty unit amount is $110.

 

Subregulation 73B(2) specifies that an offence against subregulation 73B(1) is an offence of strict liability.

 

Subregulation 73B(3) defines key terms used in regulation 73B.

 

Regulation 73C – Dories in non-fishing areas

Subregulation 73C(1) provides that the master of a primary commercial fishing vessel commits an offence if a dory associated with that vessel is unattached in a non-fishing area of the Marine Park. The maximum penalty is 50 penalty units.

 

Subregulation 73C(2) provides that a person who holds a licence or other permission permitting a primary commercial fishing vessel to be used to take fish is guilty of an offence if a dory associated with that vessel is unattached in a non-fishing area of the Marine Park. The maximum penalty is 50 penalty units.

 

Subregulation 73C(3) provides that a person within a dory that is unattached in a non-fishing area of the Marine Park is guilty of an offence. The maximum penalty is 50 penalty units.

 

Subregulation 73C(4) provides that offences against subregulations 73C(1), 73C(2) and 73C(3) are offences of strict liability.

 

Subregulation 73C(5) provides definitions for the purposes of regulation 73C.

 

Regulation 73D – Defences to prosecutions under regulation 73C

Regulation 73D sets out the defences to prosecution under subregulations 73C(1), 73C(2) and 73C(3).

 

Subregulation 73D(1) provides a defence to a prosecution where the defendant can demonstrate that the dory was detached from its primary commercial fishing vessel in the Night Island area and was within 500 metres of a permitted fishing industry service vessel. A fishing industry refuelling barge shelters in the Night Island area, and this exemption is necessary for logistical and safety reasons.

 

Subregulation 73D(2) provides a defence to a prosecution where the defendant can demonstrate that the dory was detached from its primary commercial fishing vessel as it was engaged in the rescue or attempted rescue of an endangered person or the provision of assistance to an endangered aircraft, vessel or other structure. Any equipment on the dory normally used for fishing or collecting must also have been stowed or secured.

 

Subregulation 73D(3) provides a defence to a prosecution where the defendant can demonstrate that the dory was detached from its primary commercial fishing vessel due to the direct conveyance of a person between that vessel and land. Any equipment on the dory normally used for fishing or collecting must also have been stowed or secured.

 

Subregulation 73D(4) provides the definition of ‘non-fishing area of the Marine Park’ for the purpose of regulation 73D and has the same meaning as in regulation 73C.

 

Regulation 73E – Dories in Buffer Zone – offence by master of vessel

Subregulation 73E(1) places liability on the master of the vessel where more than one dory is unattached from its primary commercial fishing vessel in the Buffer Zone. The maximum penalty is 50 penalty units.

 

Subregulation 73E(2) provides that an offence against subregulation 73E(1) is an offence of strict liability.

 

Regulation 73F – Dories in Buffer Zone – offence by licence holder of vessel

Subregulation 73F(1) places liability on the permission holder in relation to the primary commercial fishing vessel where more than one dory is unattached from that vessel in the Buffer Zone. The maximum penalty is 50 penalty units.

 

Subregulation 73F(2) provides that an offence against subregulation 73F(1) is an offence of strict liability.

 

Regulation 73G – Dories in Buffer Zone – offence by person on a dory

Regulation 73G provides that where more than one dory is unattached from its primary commercial fishing vessel in the Buffer Zone, and a person in the dory is is guilty of an offence. The fault element for this offence is recklessness. The maximum penalty is 50 penalty units.

 

Regulation 73H – Dories in Conservation Park Zone – offence by master of vessel

Subregulation 73H(1) places liability on the master of the vessel where more than one dory is unattached from the primary commercial fishing vessel with which it is associated in the Conservation Park Zone. The maximum penalty is 50 penalty units.

 

Subregulation 73H(2) provides that an offence against subregulation 73H(1) is an offence of strict liability.

 

Regulation 73I – Dories in Conservation Park Zone – offence by licence holder of vessel

Subregulation 73I(1) places liability on the licence holder in relation to the primary commercial fishing vessel where more than one dory is unattached from that vessel and is located in the Conservation Park Zone. The maximum penalty is 50 penalty units.

 

Subregulation 73I(2) provides that an offence against subregulation 73I(1) is an offence of strict liability.

 

Regulation 73J – Dories in Conservation Park Zone – offence by person on a dory

Regulation 73J provides that where more than one dory is unattached from its primary commercial fishing vessel in the Conservation Park Zone, and a person in the dory is reckless as to that circumstance, that person is guilty of an offence. The maximum penalty is 50 penalty units.

 

Item [3] – Part 14, Table 189, before item 1

Regulation 189 makes provision for certain offences in the Principal Regulations to be infringement notice offences and Table 189 specifies the infringement notice penalty units for those offences. This item inserts a reference to regulation 73B into Table 189 and specifies that the infringement notice penalty amount is four penalty units.