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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 262 OF 2008)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 262

 

ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND THE ARTS

 

Great Barrier Reef Marine Park Act 1975

 

Great Barrier Reef Marine Park Amendment Regulations 2008 (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.

 

Without limiting the generality of subsection 66(1) of the Act, paragraph 66(2)(ba) of the Act provides that 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. Further regulation making powers, relevant to the Regulations, are set out at Attachment A.

 

The Act establishes the Great Barrier Reef Marine Park Authority (the Authority) and makes provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region.

 

The Regulations amend the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) and are consequent upon amendments to the Cairns Area Plan of Management 1998 (CAPOM) and Whitsundays Plan of Management 1998 (WPOM) which were approved by the Authority in March 2008.

 

The purpose of the Regulations is to:

·        give effect to changes to some enforcement provisions of the amended CAPOM and WPOM. For example, by migrating into the Principal Regulations prohibitions on fishing or collecting activities in a particular location in the Cairns Planning Area[1], and offence provisions regarding conduct in the Whitsunday Planning Area’s[2] whale protection area, and by specifying commencement dates for amendments to the enforcement provisions of the amended CAPOM and WPOM;

·        insert a comprehensive list of all designated anchorages available for use by cruise ships and some other vessels throughout the Great Barrier Reef Marine Park (the Marine Park). Partial lists of these anchorages have been omitted from the amended CAPOM and WPOM, so that a person need only refer to the Principal Regulations for a complete list of all designated anchorages;

·        provide a process for allocating relevant permissions, where the numbers of such permissions have been limited under a plan of management. For example, permissions to construct and operate mooring facilities in the Cairns Planning Area have been limited under the amended CAPOM. The purpose of the Regulations is to provide a process for assessing and allocating such permissions, in a manner that provides the best outcome for the Marine Park;

·        insert provisions further regulating conduct involving whales in the Marine Park, consequent upon the repeal of analogous provisions under the amended CAPOM and WPOM. Accordingly, all regulation of activities involving whales will be provided under Part 4A of the Principal Regulations;

·        insert definitions for terms used in the CAPOM and WPOM, where such terms are defined in accordance with the Principal Regulations, pursuant to the amended CAPOM and WPOM; and

·        repeal provisions that are outdated, consequent upon amendments to the CAPOM and WPOM.

 

A small number of further amendments to the Principal Regulations give effect to:

·        amendments to the Great Barrier Reef Marine Park Act 1975 which commenced in July 2007. For example, by repealing redundant provisions;

·        a recent internal restructuring of the Authority. For example, by updating positions of certain ‘prescribed officers’; and

·        changes in current Commonwealth government drafting practice.

 

Details of the consultation that has taken place in relation to the Regulations are set out in Attachment B.

 

The Authority undertook preliminary regulatory assessment, and consulted with the Office of Best Practice Regulation (OBPR) in relation to several policy aspects of the proposed amendments. In each case, the OBPR advised that no further regulatory impact assessment is required. A copy of that advice is at Attachment C.

 

Details of the Regulations are set out in Attachment D.

 

The Act specifies no conditions that need to be satisfied 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

 

Regulation-making powers

 

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

 

Subsection 66(11) of the Act provides that the regulations may prescribe penalties not exceeding a fine of 50 penalty units for offences against the regulations.

 


ATTACHMENT B

 

Consultation on the amendments

 

In accordance with Part 3 of the Legislative Instruments Act 2003, the Great Barrier Reef Marine Park Authority (the Authority) undertook various forms of stakeholder consultation on the amendments.

 

Plan of Management provisions

 

First, indirect stakeholder consultation was undertaken in the course of consulting on amendments to the Cairns Area Plan of Management 1998 (CAPOM) and the Whitsundays Plan of Management 1998 (WPOM), as the amendments are required primarily as a consequence of amendments to those plans.

 

Under sections 39ZE and 39ZG of the Great Barrier Reef Marine Park Act 1975 (the Act), the Authority is required to notify the public of the preparation of an amendment of a plan of management and invite interested persons to make written submissions in relation to the amended plan. In early 2007, the Authority undertook detailed public consultation in relation to the proposed amendments to the CAPOM and WPOM. This included specific consultation relating to the following proposals impacting the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations):

·        to move the lists of cruise ship anchorages from the CAPOM and WPOM to the Principal Regulations;

·        to assess applications for permissions for the operation of mooring facilities and a heli-pontoon facility in the Cairns Planning Area by an expression of interest process before making decisions to grant permissions of those kinds;

 

Whale provisions

 

To the extent that the Regulations also implement aspects of the Authority’s Operational Policy on Whale and Dolphin Conservation in the Great Barrier Reef Marine Park, as amended on 13 April 2007 (Whale Policy) (available at http://www.gbrmpa.gov.au/) – for example, by managing the activity of swimming-with-whales through regulations, and limiting the numbers of permissions for swimming-with-whales activities in the Cairns Planning Area under regulations – the Authority has also consulted stakeholders in the following ways:

 

Bareboat provisions

 

In relation to the amendments impacting the bareboat provisions of the Principal Regulations, the Authority has conducted the following further stakeholder consultation:

 

Other provisions

 

Consultation in relation to several other regulations was not undertaken as they are considered to be merely minor or machinery in nature.

 


ATTACHMENT C



 

Reference:
Contact:
Telephone:
e-mail:

9720
Annesley Athaide
6215 1957
annesley.athaide@obpr.gov.au

Ms Sally Harman
Great Barrier Reef Marine Park Authority

 

Dear Ms Harman

Thank you for your preliminary assessment of the proposed amendments to the Great Barrier Reef Marine Park Regulations 1983 and accompanying information sent to us on 2 July 2008.

Based on the preliminary assessment and the materials that you have provided us, we agree that no further regulatory analysis is required for this proposal. Please note that if the terms of the proposal change from those disclosed to us, another preliminary assessment may be required.

The Office of Best Practice Regulation (OBPR) reference for this issue is ID 9720 and retain this letter as a record of the OBPR's advice. Please forward our advice to your Department's Best Practice Regulation Coordinator. Our records indicate that Mr Michael O’Keefe is your Coordinator.

If you have any queries regarding this advice, or if there are changes to the regulatory impact beyond those disclosed, please contact me on 02 6215 1957 (email: annesley.athaide@obpr.gov.au), or Philip Bomford on 02 6215 1958 (email: philip.bomford@obpr.gov.au).

 

Yours sincerely

 

 

Annesley Athaide
Office of Best Practice Regulation

3 July 2008


 

Reference:
Contact:
Telephone:
e-mail:

 

9720
Annesley Athaide
6215 1957
annesley.athaide@obpr.gov.au

 

Dr Mark Read
Great Barrier Reef Marine Park Authority

 

Dear Dr Read

Thank you for your preliminary assessment of the proposed whale provision amendments to move swimming-with-whale provisions out of the Cairns Plan of Management into the Great Barrier Reef Marine Park Regulations 1983 and accompanying information sent to us on 28 July 2008.

Based on the preliminary assessment and the materials that you have provided us, we agree that no further regulatory impact analysis is required for this proposal. Please note that if the terms of the proposal change from those disclosed to us, another preliminary assessment may be required.

The Office of Best Practice Regulation (OBPR) reference for this issue is ID 9763. Please retain this letter as a record of the OBPR's advice. Please forward our advice to your Department's Best Practice Regulation Coordinator. Our records indicate that Mr Michael O’Keeffe is your Coordinator.

If you have any queries regarding this advice, or if there are changes to the regulatory impact beyond those disclosed, please contact me on 02 6215 1957 (email: annesley.athaide@obpr.gov.au), or Philip Bomford on 02 6215 1958 (email: philip.bomford@obpr.gov.au).

 

Yours sincerely

 

Annesley Athaide
Office of Best Practice Regulation

29 July 2008


 

 

(i)      

 

Office of Regulation Review

(ii)    

Our reference: RIS ID 7661

PO Box 80
Belconnen ACT 2616
AUSTRALIA

Telephone 02 6240 3290

Facsimile 02 6240 3355

Email orr@pc.gov.au

www.pc.gov.au

26 April 2006

 

 

Ms Leanne Brown

Project Officer - Policy

Great Barrier Reef Marine Park Authority

PO Box 1379

TOWNSVILLE QLD 4810

Dear Ms Brown

RIS exemption for proposed allocation of moorings through an expression of interest process

 

Thank you for your letter of 20 April 2006 indicating that the proposed regulation to allocate limited mooring permissions using an expression of interest process is now to apply to all parts of the Great Barrier Reef Marine Park, rather than just the Cairns Planning Area as originally proposed. In your letter you inquired whether the Regulation Impact Statement (RIS) exemption which the Office of Regulation Review provided for the original proposal would apply to the revised proposal.

 

Based on the information provided in your letter and our discussion on 18 April 2006, it appears that a Regulation Impact Statement (RIS) is not required as the revised proposal is still of a minor or machinery nature and does not substantially alter existing arrangements.

 

Please note that for the purposes of future compliance reporting, the RIS ID number for this proposal is still ID 7661. I have copied this advice to the Department of the Environment and Heritage RIS compliance contact officer, Ms Emma Flanigan.

 

Please retain this letter as a record of the Office of Regulation Review’s advice. If you have any questions or comments, please do not hesitate to contact me (phone 02 6240 3321, email mlondey@pc.gov.au).

Yours sincerely

 

Michael Londey

Assistant Director


 

 

(iii)  

 

Office of Regulation Review

(iv)  

Our reference: RIS ID 8004

PO Box 80
Belconnen ACT 2616
AUSTRALIA

Telephone 02 6240 3290

Facsimile 02 6240 3355

Email orr@pc.gov.au

www.pc.gov.au

15 February 2006

 

Dear Mr Briggs

RIS exception for the amendments to GBRMPA regulations

Thank you for your email of 14 February 2006 seeking advice on whether a Regulation Impact Statement (RIS) is required for the amendments to the GBRMPA regulations (re bareboat operations).

Based on the information provided in your email, it appears that a RIS is not required as the proposed amendments are of a minor or machinery nature and do not substantially alter existing arrangements.

The Government has recently decided that a standard costing model, developed by the Office of Small Business, should be used to assess the compliance costs for business of all regulatory proposals that have an impact on business or individuals. This applies regardless of whether proposals require a RIS. Information about the standard costing model can be found on the Internet at www.industry.gov.au/costingmodel. If you have any queries about how to apply the costing model to your regulatory proposal, please contact the Office of Small Business via email at costingmodel@industry.gov.au.

Please refer to RIS ID: 8004 in all correspondence and future compliance reporting. I have copied this advice to the RIS compliance officer for the Department of Environment and Heritage.

Please retain this letter as a record of the Office of Regulation Review's advice. If you have any questions or comments please do not hesitate to contact me on (02) 6240 3260 or pbomford@pc.gov.au.

Yours sincerely

 

Phil Bomford

Senior Research Economist


ATTACHMENT D

 

Details of the Great Barrier Reef Marine Park Amendment

Regulations 2008 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

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.

 

Schedule – Amendments

 

Items [1] and [2] – Regulation 3

 

These amendments are merely editorial in nature, and bring the provisions into line with current drafting practice by changing the regulation heading to ‘Definitions’ and removing the existing reference to subregulation (1).

 

Item [3] – Subregulation 3(1), definition of application and authorisation

 

The new definition of ‘application’ is consequent upon the repeal of subregulation 3(6) (see item [13]), and locates this definition with other definitions in accordance with current drafting practice. The amendment is therefore merely editorial in nature.

 

The amendments to the definition of ‘authorisation’ limit the application of this term to the Hinchinbrook Plan of Management 2004 (HPOM) because the amended Cairns Area Plan of Management 1998 (CAPOM) and amended Whitsundays Plan of Management 1998 (WPOM) no longer use this term. Schedule 10 to the HPOM, on the other hand, provides that ‘authorisation has the same meaning as in subsection 4(1) of the Regulations’. (The reference to ‘subsection 4(1)’ refers to the Principal Regulations before they were renumbered.)

 

Item [4] – Subregulation 3(1), definition of bareboat and bareboat operation

 

The new definition of ‘bareboat’ is consequent upon the repeal of subregulation 3(8) (see item [13]), and locates this definition with other definitions in accordance with current drafting practice. The amendments to this definition also remove the existing references to ‘a class 1F ship’, as the survey class 1F commercial ship category of vessels is likely too narrow, and could exclude bareboats that fall within other survey classes. Further, it is considered the elements of a bareboat being ‘hired or otherwise made available under a commercial arrangement…for a person’s recreational use’, more appropriately define the term ‘bareboat operation’, rather than the vessel itself. Accordingly, these provisions have been omitted from the definition of ‘bareboat’ and inserted into the definition of ‘bareboat operation’.

 

The amendments to the definition of ‘bareboat operation’ ensure that all commercial arrangements whereby a bareboat is made available for a person’s recreational use – for example, under a hiring, timeshare, or similar arrangement – fall within the definition of bareboat operation, and accordingly, must comply with the requirements under Part 6 of the Principal Regulations. This includes bareboat ownership structures that provide for an equity share in a vessel, which entitle members to corresponding use of the vessel for a predetermined period of time, and similar fractional bareboat ownership arrangements.

 

The new definitions of ‘bareboat’ and ‘bareboat operation’ are also relevant to Schedule 9 to the amended WPOM, which provides that these terms have ‘the same meaning as in the Regulations’.

 

Items [5], [6] and [66] – Subregulation 3(1), definition of cruise ship anchorage and designated anchorage, and Schedule 1 Designated anchorages

 

The new definition of ‘cruise ship anchorage’ gives effect to recent amendments to the CAPOM and the WPOM by inserting a definition for that term into the Principal Regulations. Schedule 9 to the amended WPOM provides ‘cruise ship anchorage has the same meaning as in the Regulations’ while paragraph 2.5(a) of the amended CAPOM refers to ‘a cruise ship anchorage mentioned in the Regulations’.

 

However, the Great Barrier Reef Marine Park Authority (the Authority) is moving to replace the term ‘cruise ship anchorage’ with the term ‘designated anchorage’, as the latter term more appropriately indicates that the anchorages may be used by vessels other than only cruise ships. Accordingly, the definition of ‘cruise ship anchorage’ refers to the new definition of ‘designated anchorage’.

 

The definition of ‘designated anchorage’, in turn, refers to the points or areas described under new Schedule 1 to the Principal Regulations. The purpose of Schedule 1 is to comprehensively list all designated anchorages located in the Marine Park. The Schedule lists all designated anchorages from the most northerly to most southerly, and by management and planning area. This amendment is intended to simplify the searches that are required to be undertaken by persons wishing to use a designated anchorage, and avoids the requirement to update the various plans of management and individual permission documents each time an anchorage is added or removed.

 

Partial lists of cruise ship anchorages (designated anchorages) have been omitted from the amended CAPOM and regulation 179 (see item [61]), so that a person need only refer to one place in the Principal Regulations for a complete list of all designated anchorages.

 

Item [6] – Subregulation 3(1), definition of Division 2.5 permission

 

The definition of ‘Division 2.5 permission’ is consequent upon new regulation 74A, proposed amendments to item 3A of Table 134, and proposed subregulation 134(3), which each include a reference to a ‘Division 2.5 permission’ (see, respectively, items [26], [49] and [52]). The purpose of this definition is to provide a shorthand way of referring to each of the types of relevant permissions to which new Division 2.5 applies (see item [34]).

 

Item [7] – Subregulation 3(1), definition of drying reef and high-speed vessel

 

The new definition of ‘drying reef’ is consequent upon the insertion of new Schedule 1 Designated anchorages, because that schedule includes references to ‘drying reef’ (see item [66]). The regulation clarifies that ‘drying reef’ means an area of reef exposed at low tide.

 

The definition of ‘high-speed vessel’ is relevant to paragraph (b) of the new definition of ‘motorised water sport’ (see item [8]). The term is defined in the same terms as it is under Schedule 9 to the WPOM.

 

Item [8] – Subregulation 3(1), definition of motorised water sport

 

This amendment gives effect to amendments to Schedules 9 to the amended CAPOM and WPOM, which amendments provide that ‘motorised water sport has the same meaning as in the Regulations’. The definition of ‘motorised water sport’ accords largely with the definitions for the term that were provided under the previous versions of the CAPOM and WPOM, with some minor editorial revision.

 

The purpose of migrating this definition into the Principal Regulations is to enable it to be more easily amended as required. By comparison, the process of amending a definition in a plan of management is more onerous. Increasing flexibility is desirable because paragraph (c) of the definition of ‘motorised water sport’ refers to ‘personal watercraft’, which term is defined in accordance with the Transport Operations (Marine Safety) Regulation 2004 of Queensland (see item [9]). From time to time, the Queensland legislation may be amended in a manner to which the Commonwealth would wish to give effect. In these types of circumstances, it is desirable to be able to amend the definition of ‘motorised water sport’ under the Principal Regulations.

 

Item [9] – Subregulation 3(1), definition of personal watercraft

 

The new definition of ‘personal watercraft’ is relevant to paragraph (c) of the new definition of ‘motorised water sport’ (see item [8]). It also gives effect to amendments to the definitions of that term under Schedules 9 to the amended CAPOM and WPOM, which amendments provide ‘personal watercraft has the same meaning as in the Regulations’. The definition accords largely with the definitions for the term that were provided under the previous versions of the CAPOM and WPOM, by adopting the definition that applies under the current Transport Operations (Marine Safety) Regulation 2004 of Queensland.

 

The definition also applies in relation to the reference to ‘personal watercraft’ in subparagraph 25(c)(ii) of the Principal Regulations.

 

Item [10] Subregulation 3(1), definition of special tourism permission

 

This amendment is merely editorial in nature, and removes any capital letters from the expression ‘plan of management’ to ensure it is consistent with the definition of that term provided under subsection 3(1) of the Great Barrier Reef Marine Park Act 1975 (the Act).

 

Items [11] and [12] – Subregulation 3(1), definition of swimming-with-whales activity and whale watching activity

 

The new definition of ‘swimming-with-whales activity’ is consequent upon the insertion of new regulation 78A (see item [28]), and extends the application of the definition of this term under Part 4A to the whole of the Principal Regulations.

 

Presently, regulations 74 and 185 and Part 4A are the only provisions which refer to the term ‘swimming-with-whales activity’. Subregulation 74(9) provides that in regulation 74 the expression ‘swimming-with-whales activity’ has ‘the meaning given in Part 4A’.

 

The amendment removes any doubt as to how the term ‘swimming-with-whales activity’ is defined in relation to regulations 185 and 78A, as those provisions sit outside regulation 74 and Part 4A.

 

The definition of ‘whale watching activity’ is related to the new definition of ‘swimming-with-whales activity’, and similarly extends the application of the definition of this term under Part 4A to the whole of the Principal Regulations. Presently, regulation 74 and Part 4A are the only provisions which include the term ‘whale watching activity’.

 

The insertion of these two definitions in subregulation 3(1) enables the repeal of subregulation 74(9) (see item [25]).

 

Item [13] – Subregulations 3(2) to (8)

 

These amendments are merely editorial in nature, bring the regulation into line with current drafting practice, and are consequent upon the insertion of definitions of ‘application’ and ‘bareboat’ in subregulation 3(1) (see items [3] and [4]) and new regulations 3A to 3C (see item [15]).

 

Item [14] – Note to regulation 3

 

This regulation inserts an interpretive note to draw the reader’s attention to all terms that are defined in the Act, and which are applicable to the Principal Regulations pursuant to paragraph 13(1)(b) of the Legislative Instruments Act 2003.

 

Item [15] – Regulations 3A to 3D

 

New regulation 3A has been adapted from subregulations 3(2) to (4), which have been repealed (see item [13]) to accord with current drafting practice.

 

While the amendments are predominantly editorial in nature, they ensure that:

 

New regulation 3B has been adapted from subregulation 3(5), which has been repealed (see item [13]) to accord with current drafting practice. These amendments are merely editorial in nature, although a new Note has been inserted which draws the reader’s attention to the fact that the Dictionary to the Great Barrier Reef Marine Park Zoning Plan 2003 (the Zoning Plan) provides for a number of terms to have the meaning given by the Regulations.

 

New regulation 3C has been adapted from subregulation 3(8), which has been repealed (see item [13]) to accord with current drafting practice.

 

New regulation 3D clarifies that references to certain expressions (for example, ‘100 metre line or coastal 100 metre line’) referred to in new Schedule 1 to the Principal Regulations have the same meaning as in the Zoning Plan. This regulation also enables the repeal of the existing Note to regulation 6, which is redundant (see item [17]).

 

Item [16] – Paragraph 5(a)

 

The amendments to paragraph 5(a) update the provision consequent upon the recent internal restructuring of the Authority, to ensure that the provision refers to the correct titles of the officers who are ‘prescribed officers’ for the purposes of subsection 38J(7) of the Act. The amendments also extend the classes of prescribed officers to all members of staff who perform the duties of any General Manager, any Director and any Regional Liaison Manager, as well as to the Manager, Ports and Shipping.

 

Item [17] – Note to regulation 6

 

This amendment repeals this redundant provision, consequent upon the insertion of new regulation 3D (see item [15]).

 

Items [18] and [19] – Regulation 25, definition of motorised watersports, subparagraph (c)(ii) and Note

 

The amendment to subparagraph 25(c)(ii) removes the reference to Queensland’s Transport Operations Marine Safety Regulation 2004 for the purpose of defining the term ‘personal watercraft’. The omitted text is now redundant, as the new definition of ‘personal watercraft’ under subregulation 3(1) defines that term in accordance with the relevant Queensland regulations (see item [9]).

 

The insertion of the Note following regulation 25 draws the reader’s attention to the fact that, although subregulation 3(1) contains a similar definition so far as it defines the term ‘motorised water sport’, there are subtle differences between the two terms. The distinction between these terms is important, because regulation 25 is intended to continue the operation of the existing definition of ‘motorised watersports’ to the Zoning Plan, while the new definition of ‘motorised water sport’ under regulation 3 applies to the balance of the Principal Regulations and has effect under Schedules 9 to the amended CAPOM and WPOM (see item [8]).

 

Items [20] and [21] – Paragraphs 45(h) and 45(i)

 

The amendments to regulation 45 insert an additional type of Special Management Area into the existing list of Special Management Areas, for the purpose of section 4.2 of the Zoning Plan.

 

Section 4.2 of the Zoning Plan provides that the Regulations may designate areas as Special Management Areas, which restrict access to, or use of, specified areas of the Marine Park, for objectives including ‘conservation of natural resources’. The amendments therefore insert a new kind of Special Management Area, titled ‘Natural Resources Conservation SMA’ for the purpose of conserving natural resources in certain areas.

 

Item [22] – Regulations 65A and 65B

 

Under the Zoning Plan, the Principal Regulations may specify the special management provisions that are to apply to an area that is designated as a Special Management Area.

 

Accordingly, these new provisions declare an area within Mermaid Cove, Lizard Island to be a Natural Resources Conservation Special Management Area (under regulation 65A), as described under Table 65A, and regulation 65B prohibits fishing or collecting activities within the area, subject to certain exceptions for trolling or bait netting for pelagic species, limited impact (extractive) research, or conducting research in accordance with a permission from the Authority.

 

A breach of new regulation 65B constitutes a breach of the Zoning Plan (see Division 4.2), which is an offence pursuant to section 38A of the Act and carries a maximum penalty of 200 penalty units (or up to five (5) times the maximum penalty for a body corporate).

 

The purpose of these amendments is to implement, by regulation, a provision that is to be repealed under the amended CAPOM. It is considered provisions of this nature, which relate to fishing or collecting, are more appropriately located under the Principal Regulations than under the CAPOM, as the CAPOM is primarily intended to regulate tourism activities and operations. By declaring the area at Mermaid Cove, Lizard Island to be a Special Management Area, the Principal Regulations can effectively restrict fishing or collecting activities in that area in order to conserve its natural resources. It is also desirable that such provisions are grouped together in the Principal Regulations.

 

Items [23] and [24] – Subregulations 73B(2) and 73C(4), notes

 

These amendments remove the notes about strict liability under section 6.1 of the Criminal Code. It is no longer Commonwealth government policy to insert notes of this kind.

 

Some new strict liability offence provisions that have been inserted in the Principal Regulations do not contain this note (see item [39]). Therefore, existing notes of this kind have been removed to provide consistency throughout the Principal Regulations (particularly Part 4A).

 

Item [25] – Subregulation 74(9)

 

The repeal of subregulation 74(9) is consequent upon amendments to subregulation 3(1), as the insertion of definitions for ‘swimming-with-whales activity’ and ‘whale watching activity’ have made this provision redundant (see items [11] and [12]). It is therefore repealed.

 

Item [26] – Regulation 74A

 

New regulation 74A provides that if a person applies for a replacement of a relevant permission to which Division 2.5 applies, but the original permission has already expired, then if special circumstances apply, the Authority may regard the application for the replacement permission as having been made before the original Division 2.5 permission expired. The applicant is required to provide to the Authority written details of any special circumstances that might apply.

 

The purpose of the provision is to enable persons who have previously held a permission to which amended Division 2.5 applies, to apply for a replacement permission under Division 2.3 without being required to reapply under the expression of interest application regime that would otherwise apply under amended Division 2.5. In this way, a permission holder is only required to lodge an expression of interest once, and may then simply reapply under Division 2.3 for any replacement permissions of the same kind. However, a person who reapplies for a replacement permission after the expiry of the original permission would be required to satisfy the Authority that special circumstances apply to justify any decision by the Authority to treat the application as having been made before the expiry of the original permission.

 

Item [27] – Regulation 77A

 

This new regulation provides that, subject to subregulation 77A(2), if the Authority grants a relevant permission, being a permission to which new Division 2.5 applies (see item [34]), it is a condition of that permission that it does not come into force until the end of a 90 day period commencing on the day that the Authority’s decision to grant the permission was made.

 

Subregulation 77A(2) provides that the 90 day period referred to under subregulation (1) does not continue to run if, after granting a Division 2.5 permission, a request for reconsideration of the decision to grant the permission is not received within the time required by subregulation 185(8). That is, if no request for reconsideration is received within time, then it is a condition of the Division 2.5 permission granted by the Authority that it will come into force on the day after the end of the period in which a request for reconsideration must be made.

 

This regulation ensures that by the time the relevant permission takes effect, all rights of review that may be open to a person who has lodged an unsuccessful application for the Division 2.5 permission under Division 2.3, would have expired. Therefore, there would be no risk that the Authority’s decision to grant the relevant permission could be overturned on review at the time that the permission comes into force. This is important because there are only limited numbers of permissions of the type to which proposed Division 2.5 applies, and applicants who are granted a permission by the Authority require certainty before investing resources into any activity that may be allowed under the permission.

 

Item [28] – Regulation 78A

 

This new regulation provides that the Authority must not grant more than nine (9) relevant permissions to conduct a tourist program that consists, in whole or part, of a swimming-with-whales activity involving dwarf minke whales in certain sectors of the Cairns Planning Area.

 

While an analogous provision has been deleted from the amended CAPOM, the purpose of this regulation is to continue limiting, under legislation, the numbers of these types of tourist program permissions that may be granted. This ensures continued effect is given to the Authority’s Operational Policy on Whale and Dolphin Conservation in the Great Barrier Reef Marine Park (the Whales Policy), as amended on 13 April 2007, which provides that the Authority will only permit a maximum of nine (9) permissions of this type ‘until a review of management arrangements occurs following the completion of the Dwarf Minke Whale Tourism Monitoring Programme’.

 

Items [29] to [33] – Division 2.4

 

These amendments remove from Division 2.4 all references to authorisations which concern the CAPOM and WPOM, as those references are now redundant. The amendments provide that authorisations may only be granted in relation to the Hinchinbrook Planning Area.

 

The purpose of an authorisation is, in effect, to grant a permission holder exemption from complying with certain provisions of a plan of management. They are used as transitional tools, during the period in which a plan of management is being implemented, to give people who use the Marine Park time to adjust to new management arrangements.

 

All references to ‘authorisations’ have been omitted from the amended CAPOM and WPOM, as there are no longer any permissions with authorisations relating to the Cairns or Whitsunday Planning Areas, and there are not to be any further authorisations granted in relation to these planning areas. Consequently, these amendments are intended to remove from the Principal Regulations all references to authorisations concerning the CAPOM or WPOM.

 

As the HPOM is not presently being amended, the authorisation provisions which might apply to the Hinchinbrook Planning Area have not been changed.

 

Item [34] – Divisions 2.5 and 2.6

 

These amendments repeal Divisions 2.5 and 2.6 and replace them with a new Division 2.5. Existing Division 2.5 is redundant consequent upon amendments to provisions of the CAPOM, which provisions provide for the handling of applications for a relevant permission to operate a mooring facility in the Cairns Planning Area.

 

Existing Division 2.5 provides that consideration of applications for relevant permissions for a mooring in the Cairns Planning Area must be done ‘in accordance with clause 1.21 of the Cairns Area Plan of Management, as in force on 1 January 2001’, and establishes a preferential allocation process that is to apply for the assessment of applications for these types of permissions.

 

However, the version of the CAPOM ‘as in force on 1 January 2001’ has since been amended, and now requires the Authority to ‘seek expressions of interest from members of the public for the allocation of any new moorings in accordance with the Regulations’ (see Note 1 to subclause 1.37(1) of the amended CAPOM).

 

Therefore, new Division 2.5 is intended to set out the expression of interest process that the Authority must follow before granting an application for a relevant permission to operate a mooring facility in the Cairns Planning Area. However, the new Division is also intended to extend the expression of interest process to the granting of other types of relevant permissions, where the numbers of such permissions have been limited under a plan of management. For example, under various provisions of the CAPOM, WPOM and HPOM, the numbers of permissions to operate moorings facilities are limited. These limits have been established to effectively manage the intensive use of the Cairns, Whitsundays and Hinchinbrook planning areas in a manner that is ecologically sustainable.

 

Existing Division 2.6 of the Principal Regulations already sets out an expression of interest process that is to apply in relation to assessing applications for special tourism permissions. Therefore, the provisions in existing Division 2.6 have been amended and incorporated into new Division 2.5 to provide for an expression of interest process that the Authority must follow for the allocation of several types of relevant permissions – including special tourism permissions, certain limited permissions for moorings, and certain limited permissions for heli-pontoons.

 

This item inserts new regulations 88, 88A, 88B, 88C, 88D, 88E, 88F and 88G into the Principal Regulations as follows:

 

New regulation 88 – Purpose of Division

Regulation 88 explains that the purposes of new Division 2.5 are:

·      to set out the process by which expressions of interest for certain relevant permissions is to be conducted; and

·      to set out the process by which ‘entitled persons’ may apply for relevant permissions under Division 2.3.

 

This regulation provides that the expression of interest process applies to the granting of only certain types of relevant permissions – for the conduct of a tourist program, the operation of a mooring facility, or the operation of a heli-pontoon facility – where such a permission is ‘available’ under a plan of management, and the permission is one to which the Division applies pursuant to regulation 88B.

 

This regulation also explains that a permission is considered to be ‘available’ if it has either not previously been granted, or would not be in force at the time of granting under Division 2.3 (for example, because it has expired, has been surrendered, or has been revoked).

 

A note to the regulation clarifies that the expression of interest process must occur before the granting of available permissions to which this Division applies.

 

New regulation 88A – Definitions for this Division

Regulation 88A provides definitions of ‘available permission’ and ‘heli-pontoon’ that apply under new Division 2.5.

 

This regulation defines ‘available permission’ as having the meaning given by subregulation 88(1).

 

The regulation defines ‘heli-pontoon’ as a non-motorised permanently moored facility that is used solely as a landing area for helicopters, which is the same as the definition of that term provided under subclause 1.37(3) of the amended CAPOM. This definition is relevant to new regulation 88B, which provides that new Division 2.5 applies to a relevant permission to operate a heli-pontoon facility of the kind mentioned in subclause 1.37(2) of the CAPOM.

 

New regulation 88B – Application of Division

Regulation 88B describes the types of relevant permissions to which new Division 2.5 applies.

 

Subregulation (1) provides that this Division applies to a special tourism permission if, subject to subregulation (6), the permission has not been transferred to another person. Under subregulation (6), this Division does apply to a special tourism permission that has been transferred if, after being transferred, the permission has expired, has been surrendered, or has been revoked.

 

The purpose of subregulations (1) and (6) is to ensure new Division 2.5 applies to all available special tourism permissions (as defined under regulation 3), whether previously granted or not, except at the time that a permission of this kind is being transferred to another person.

 

Similarly, subregulation (2) provides that new Division 2.5 also applies to a relevant permission to operate a mooring facility as provided for in subregulations (3), (4) and (5), and to a relevant permission to operate a heli-pontoon facility of the kind mentioned in subclause 1.37(2) of the CAPOM (except as provided for in subregulation (5)); if, subject to subregulation (6), the permission has not been transferred to another person.

 

Once again, under subregulation (6), this Division does apply to a permission to operate a mooring facility, or a permission to operate a heli-pontoon facility, that has been transferred if, after being transferred, the permission has expired, has been surrendered, or has been revoked.

 

Subregulation (3) describes the specific types of permissions to operate mooring facilities to which new Division 2.5 applies. However, the subregulation specifically excludes any permissions which may also be listed under subregulation (4).

 

Subregulation (3) refers to the following types of permissions to operate mooring facilities, as being permissions to which this Division applies:

·        the mooring is in a Location mentioned in Schedule 6 to the CAPOM;

·        the mooring is in the Whitsunday Planning Area and the permission was in force immediately before the commencement of the Whitsundays Plan of Management Amendment 2008 (No. 1);

·        the mooring is in the Hinchinbrook Planning Area and the permission was in force immediately before 15 April 2004. A note to this subregulation explains that 15 April 2004 is the date on which the HPOM was gazetted;

·        the mooring facility is of a kind mentioned in subregulation 1.37(1) of the amended CAPOM.

 

This subregulation ensures new Division 2.5 applies to the allocation of certain kinds of relevant permissions for mooring facilities, where the numbers of such permissions have been limited under a plan of management.

 

Subregulation (4) provides that, for subregulation (3), the types of permissions for mooring facilities to which this Division does not apply include:

·        moorings of a kind mentioned in paragraphs 1.36(3)(a), (b), (c), (e) or (f), clause 1.38 or subclause 1.39(7) of the amended CAPOM;

·        moorings in a place mentioned in subclause 1.27(2) of the WPOM;

·        moorings in a place or of a kind referred to in subclause 1.29(1) or 2.22(2) of the HPOM.

 

The purpose of this subregulation is to preclude from the operation of new Division 2.5, permissions for mooring facilities which, although they may be managed under a plan of management, are not required to be allocated under an expression of interest process. For example, moorings of a kind mentioned in paragraph 1.36(3)(b) of the amended CAPOM are moorings installed for the purpose of research. It is not intended that moorings of this kind should be allocated by an expression of interest process. Rather, the ordinary permission assessment process under Division 2.3 should apply for these kinds of permissions.

 

Subregulation (5) provides that this Division does not apply to a permission of a kind referred to in subregulations (1) and (2) if:

·        the holder of the permission has, before the permission has expired, applied under Division 2.3 to replace the permission with a relevant permission of the same kind; or

·        the holder of the permission has, after the permission has expired, applied under Division 2.3 to replace the permission with a relevant permission of the same kind, and the Authority has, under new regulation 74A, decided to treat the application under Division 2.3 as having been made before the expiry of the relevant permission.

 

The purpose of subregulation (5) is to enable persons who have previously held a permission to which Division 2.5 applies, to apply for a replacement permission under Division 2.3 without being required to reapply under the expression of interest application regime that would otherwise apply. In this way, a permission holder need only lodge an expression of interest once, and may then simply reapply under Division 2.3 for any replacement permissions of the same kind.

 

New regulation 88C – Invitations for expression of interest

Regulation 88C sets out the process the Authority must follow when inviting expressions of interest for available permissions, and before granting any available permissions under Division 2.3.

 

This regulation provides that the Authority must, at least 14 days before the closing date for the expressions of interest, publish a notice in the following publications:

·      the Gazette;

·      in a newspaper circulating generally in the State of Queensland; and

·      in a local newspaper, if any, that is circulating in that part of Queensland that is adjacent to the part of the Marine Park in which the permitted use mentioned in the relevant permission is to be carried on.

 

This regulation requires the notice to provide details of the kind, or kinds, of permission for which expressions of interest are being sought, the procedure for expressing an interest, the expression of interest closing date, the applicable lodgement fee, and the criteria to be applied by the Authority in assessing any expressions of interest received.

 

New regulation 88D – Consideration of expressions of interest to determine entitled person

Regulation 88D sets out the circumstances in which the Authority must not consider an expression of interest. Specifically, the Authority must not consider an expression of interest that is not made in the form approved by the Authority, that is not received within the appropriate dates, or that is not accompanied by the appropriate lodgement fee.

 

This regulation provides that, in considering any expression of interest that satisfies the minimum requirements under subregulation (1), the Authority must have regard to the criteria set out in the notice under new regulation 88C.

 

This regulation requires the Authority, for each kind of permission for which more than one expression of interest is received, to rank the expressions of interest in order of merit, and gives the Authority discretion to rank by ballot any expressions of interest of equal merit.

 

This regulation also requires the Authority to refuse to rank an expression of interest that does not satisfy one or more of the criteria set out in the notice under new regulation 88C, and to provide an affected person with written notice of, and the reason for, a decision not to rank an expression of interest. This regulation requires the Authority to provide such a notice within 14 days from the date of making the decision.

 

New regulation 88E – Entitled person

Regulation 88E describes the circumstances in which a person who has lodged an expression of interest is taken to be an entitled person, and as such, is entitled to apply for an available permission under Division 2.3. Those circumstances are where the Authority, after ranking each expression of interest, determines the person who has lodged the highest ranked expression of interest. The regulation provides that the person who lodged the most highly ranked expression of interest is taken to be the entitled person from the date specified in the notice referred to in new regulation 88F.

 

This regulation also establishes the process to be applied by the Authority to re-rank any remaining expressions of interest and determine a new entitled person, if the originally entitled person is not ultimately granted an available permission because:

·        they fail to apply for a relevant permission under Division 2.3 within the requisite time;

·        they withdraw their application;

·        their application lapses under regulation 76 or regulation 132; or

·        their application is refused under Division 2.3.

 

In these circumstances, new regulation 88E requires the Authority to re-rank any remaining expressions of interest so that the immediately next ranked expression of interest becomes the most highly ranked expression of interest. Under this regulation, the person who lodged that expression of interest is taken to be the new entitled person with effect from the date set out in the notice to them under new regulation 88F.

 

This regulation also provides that, if the newly entitled person is also not ultimately granted a permission because:

·        they fail to apply for a relevant permission under Division 2.3 within the requisite time;

·        they withdraw their application;

·        their application lapses under regulation 76 or regulation 132; or

·        their application is refused under Division 2.3;

then the re-ranking process described above continues to apply as required to determine who is taken to be the entitled person for the permission.

 

Subregulation 88E(5) provides that for any re-ranking process that is required to be undertaken by the Authority, the Authority need only take into account the result of the previous ranking for that permission. The purpose of this provision is to enable the Authority to simply rely on the original ranking of any expressions of interest remaining in the cue so that the immediately next ranked expression of interest automatically becomes the new entitled person, and the Authority does not have to again re-assess each expression of interest remaining in the cue.

 

New regulation 88F – Application under Division 2.3

Regulation 88F sets out the process to be applied by the Authority to notify successful expression of interest applicants (entitled persons) that they may apply for an available permission under Division 2.3.

 

This regulation requires the Authority – as soon as practicable after determining the most highly ranked expression of interest for a kind of permission set out in a notice under regulation 88C – to provide a written notice to the entitled person advising the following:

·        the date from which the Authority’s decision to rank their expression of interest the highest takes effect (the date must not be a date before the notice is given to the person);

·        that the person is entitled to make an application for the relevant permission under Division 2.3; and

·        that the person must make the application within 21 days of receiving the notice, or the person ceases to be the entitled person for the permission.

 

This regulation provides that a person ceases to be an entitled person in the following circumstances:

·        if the person fails to make an application under Division 2.3 for a relevant permission within the 21 day time limit;

·        if the entitled person withdraws an application for a relevant permission under Division 2.3;

·        if the entitled person’s application lapses under either regulation 76 or regulation 132; or

·        if the person’s application is refused under Division 2.3.

 

The regulation also stipulates that only the entitled person for the permission is able to apply under Division 2.3 for the granting of the permission.

 

New regulation 88G – Notice regarding unsuccessful expressions of interest

Regulation 88G requires the Authority to provide written notice – to any person whose expression of interest has been ranked by the Authority, but has not been ranked the highest expression of interest for a kind of permission – of the reason for not ranking the person’s expression of interest the highest.

 

This regulation requires the Authority to provide such notice within 28 days of the making of the decision.

 

This regulation does not apply to an expression of interest that has been ranked again under new subregulation 88E(2). Therefore, the Authority is not required to provide written notice of its decision each time an expression of interest is re-ranked below the highest ranked expression of interest for a particular kind of available permission.

 

Items [35] and [66] – Regulation 117A, definition of whale protection area and Schedule 2 Whale protection areas

 

These amendments insert a definition of ‘whale protection area’ for the purpose of Part 4A of the Principal Regulations, and insert a description of the whale protection area under new Schedule 2 to apply in relation to new regulation 117JB (see item [39]). The definition of ‘whale protection area’ refers to ‘a whale protection area in Part 2 of Schedule 2’ [emphasis added], to enable further whale protection areas to be added to the Principal Regulations, as necessary.

 

Subject to some minor amendments, the description of the whale protection area that has been inserted under Schedule 2 is the same as the Whale Protection Area described under Schedule 4 to the previous version of the WPOM. Under the Whitsundays Plan of Management Amendment 2008 (No. 1), Schedule 4 of the WPOM and all related provisions have been repealed in anticipation of analogous provisions being inserted into the Principal Regulations.

 

Item [36] – Subregulation 117B(1)

 

This regulation amends subregulation 117B(1) by clarifying that a provision of Part 4A applies to a person in the Marine Park, and to activities conducted by a person in the Marine Park. This is to ensure that Part 4A applies not only to persons who are in the Marine Park, but also to activities conducted by a person who, while they may not be physically present in the Marine Park, are nevertheless conducting activities in the Marine Park.

 

Items [37] and [38] – Subregulation 117E(1) and note

 

These amendments make regulation 117E of the Principal Regulations subject to new regulation 117JB (see item [39]). Regulation 117E regulates the operation of vessels while they are within the ‘caution zone’ for a cetacean. The purpose of the amendment is to make this provision subject to new regulation 117JB, which governs the operation of vessels in a whale protection area, regardless of whether the vessels are also within a caution zone for a cetacean.

 

The amendment to the note to subregulation 117E(1) draws the reader’s attention to the fact that, in addition to the special provisions applicable under regulation 117F for calves, special provisions also now apply under regulation 117JB for whale protection areas.

 

Item [39] – Regulations 117JA and 117JB

 

Regulation 117JA inserts a strict liability offence, prohibiting a person from conducting a tourist program, involving a swimming-with-whales (specifically, dwarf minke whales) activity, in the Marine Park without a relevant permission from the Authority to conduct that activity. The maximum penalty for breaching the offence provision is 50 penalty units.

 

This regulatory offence is related to new regulation 78A (see item [28]), and supports the policy and regulatory limit that has been placed on the number of tourism operators that may be authorised to conduct swimming-with-whales activities in the Marine Park.

 

Part 4A of the Principal Regulations comprises similar strict liability offence provisions, so far as those provisions regulate interactions with cetaceans, particularly swimming-with-whales (see, for example, regulation 117J). The existing Part 4A offences were implemented to ensure consistency with provisions concerning cetaceans under the Environment Protection and Biodiversity Conservation Regulations 2000 (the EPBC Regulations), and to support the Australian National Guidelines for Whale and Dolphin Watching 2005 (the Australian Whale Watching Policy).

 

As noted in the Explanatory Statement to Select Legislative Instrument 2006 No. 132, which accompanied the amendments inserting Part 4A into the Principal Regulations, the offences under the Principal Regulations are generally ones of strict liability. Therefore, the new offence provision under regulation 117JA is consistent with the other Part 4A offences and the cetacean provisions of the EPBC Regulations.

 

This new offence is a regulatory offence that deals with a matter relating to the environment. Making the offence one of strict liability has a significantly greater deterrent effect than an offence that includes a fault element and places potential offenders on notice to guard against possible contravention. In this way, this regulation ensures the integrity of the regulatory regime.

 

The penalty for the offence provision is a maximum of 50 penalty units for an individual. Again, this is consistent with the other offences under Part 4A of the Principal Regulations.

 

Regulation 117JB inserts two new strict liability offences. The first prohibits a person from operating a vessel to approach within 300 metres of a whale in a whale protection area; while the second offence prohibits a person from operating a vessel in a whale protection area as a, or part of a, tourist program to conduct a whale watching activity or a swimming-with-whales activity.

 

The term ‘whale protection area’ is defined under new regulation 117JA (see items [35] and [66]).

 

The maximum penalty for breaching either of these strict liability offence provisions is 50 penalty units.

 

The prohibited conduct referred to in regulation 117JB was previously regulated under clause 2.10 of the WPOM. That clause has been repealed under the Whitsunday Plan of Management Amendment 2008 (No. 1). Breach of clause 2.10 of the WPOM constituted a breach of regulation 178 of the Principal Regulations (for breaching a provision of Part 2 of the WPOM), which incurred a maximum penalty of 50 penalty units. Alternatively, an infringement notice could be issued for 3 penalty units (r 189 refers). The conduct was previously also a strict liability offence.

 

As noted in the Authority’s Whale Policy, it would assist users of the Marine Park if the majority of rules relating to whales are available in regulations, rather than in a number of legislative documents. To that end, regulation 117JB migrates parts of repealed clause 2.10 of the WPOM into the Principal Regulations. Part 4A of the Principal Regulations already regulates some of the conduct also regulated by clause 2.10 of the WPOM. Therefore, only certain parts of clause 2.10 have been reproduced under regulation 117JB.

 

As noted above, Part 4A of the Principal Regulations comprises similar strict liability offence provisions, so far as those provisions regulate interactions with cetaceans, and such offences were implemented to ensure consistency with cetacean provisions under the EPBC Regulations and to support the Australian Whale Watching Policy.

 

All existing offence provisions under Part 4A are strict liability offences, incurring a maximum penalty of 50 penalty units. To ensure consistency with these provisions, regulation 117JB is also a strict liability offence invoking the same penalty.

 

Items [40] to [42] – Subregulation 117K(1)

 

These amendments amend subregulation 117K(1) by making that subregulation subject to new subregulation 117K(1A).

 

Subregulation 117K(1A) provides that written exemptions from any or all of the provisions of Part 4A, which are generally available under subregulation 117K(1), may not be given either from regulation 117B, or to the holder of a relevant permission, or to a tourist, mentioned in paragraph (1)(f) in relation to a whale protection area.

 

The purpose of these amendments is to ensure that no exemption may be given by the Authority:

 

Item [43] – Subregulation 124(1A)

 

This amendment provides that the Authority may satisfy it’s obligations under subregulation 124(1) of the Principal Regulations – to keep a register of persons appropriately qualified for bareboat operations, and to show the register to any person who asks to see it at the Authority’s office when the office is open – by making the register available for inspection on the Internet.

 

The purpose of the amendment is to give the Authority a discretion to either keep a hard copy register of qualified persons and make it available for viewing by the public, or to publish the register of appropriately qualified persons on the Internet. The latter option is consistent with the Authority’s discretion to publish on the Internet a register of permissions and related information (see subregulation 115(2) of the Principal Regulations).

 

Items [44], [45], [47] and [48] – Subregulation 125(1)

 

These amendments are merely editorial in nature, and are intended to clarify that the provisions of subregulation 125(1) of the Principal Regulations apply to the actions of ‘the holder of a permission’ for a bareboat operation being conducted in the Whitsunday Planning Area, and not to the actions of ‘the operation’.

 

Item [46] – Paragraph 125(1)(b)

 

This regulation amends paragraph 125(1)(b), by enabling the Authority to suspend a permission for a bareboat operation being conducted in the Whitsunday Planning Area if the permission holder does not have protection and public liability indemnity insurance for at least $10,000,000.

 

The purpose of this regulation is merely to increase the minimum amount of protection and public liability indemnity insurance that is required to be obtained by a permission holder from $5,000,000 to $10,000,000. It is a condition of all current permissions for a bareboat operation that permission holders obtain protection and public liability indemnity insurance for not less than $10,000,000, and therefore the amendment merely updates the Principal Regulations to give effect to the current $10,000,000 insurance requirement.

Item [49] – Regulation 134, table 134, item 3A

 

This regulation amends item 3A of Table 134, to specify the cost of making an expression of interest application to the Authority for a Division 2.5 permission is $250. The term ‘Division 2.5 permission’ is newly defined under regulation 3 (see item [6]).

 

This replaces existing item 3A, which stipulates a $250 fee for lodging an application under existing regulation 88A for a special tourism permission. Existing regulation 88A has been repealed (see item [34]).

 

New item 3A applies to expression of interest applications for all types of relevant permissions to which new Division 2.5 applies, including expressions of interest for special tourism permissions.

 

Items [50] to [52] – Subregulations 134(2), (3) and (3A)

 

These amendments make subregulations 134(2) and (3) subject to new subregulation 134(3A). Subregulation 134(3A) provides that subregulations 134(2) and (3) do not apply to an expression of interest application to the Authority for a Division 2.5 permission. The term ‘Division 2.5 permission’ is newly defined under regulation 3 (see item [6]).

 

The effect of these amendments is that, in relation to expression of interest applications for a Division 2.5 permission, the Authority is not required to send a reminder notice to a person who fails to pay the requisite application fee. Further, the person’s application is not taken to have lapsed after 10 days from receiving a reminder notice. Rather, under new subregulations 88D(1) and (2), the Authority is only required to consider expressions of interest that are, at the date of receipt, accompanied by the requisite lodgement fee (see item [34]).

 

Items [53] to [55] – Paragraph 143(2)(c) and regulation 151

 

The amendments to paragraph 143(2)(c), the heading to regulation 151 and subregulation 151(1) each correct minor typographical errors, by changing the expression ‘motorised water sports’ from the plural to the singular, to ensure the wording of these provisions is consistent with the definition of ‘motorised water sport’ that has been inserted under subregulation 3(1) (see item [8]).

 

Items [56] and [59] – Commencement provisions for enforcement provisions of amended plans of management

 

New subregulation 173(5) specifies, for the purpose of subsection 39ZF(2) of the Act, that the enforcement provisions of the CAPOM, inserted into, or amended by the Cairns Area Plan of Management Amendment 2008 (No. 1) take effect on the day this provision commences.

 

Similarly, new subregulation 177(3) specifies, for the purpose of subsection 39ZF(2) of the Act, that the enforcement provisions inserted into the WPOM or amended by the Whitsundays Plan of Management Amendment 2008 (No. 1) take effect on the day this provision commences.

 

Items [57] and [60] – Defences and transitional provisions

 

The amendments to subregulations 174(3) and 178(3) repeal all defences to a prosecution for a breach of a provision of Part 2 of either the CAPOM or the WPOM, other than the defences of acting in accordance with a relevant permission. That is, the defences available under the existing provisions of acting in accordance with an authorisation, or actions that are permitted by subregulation 84(3), have been repealed.

 

These amendments are intended to remove provisions that are now redundant, as there are no longer any authorisations in existence relating to activities in the Cairns and Whitsundays Planning Areas. Therefore, it would not be possible for a person to rely on a defence that they were acting in accordance with an authorisation (existing subparagraphs 174(3)(a)(i) and 178(3)(a)(i) refer).

 

Further, the provisions, which establish the process for granting authorisations for activities in the Cairns and Whitsunday Planning Areas, have also been repealed (see items [29] to [33]). Accordingly, subregulation 84(3) no longer has any effect in relation to activities conducted in the Cairns and Whitsunday Planning Areas.

 

New subregulations 174(4) and 178(4) are transitional provisions, which clarify that if a prosecution is on foot when the amendments commence, a defence previously available under subregulations 174(3) and 178(3) continues to be available.

 

Item [58] – Regulation 175

 

This item repeals regulation 175, which is now redundant.

 

Regulation 175 provides for cessation of certain conditions or restrictions contained in a permission that allows a person to access various places in the Cairns Planning Area. The conditions and restrictions referred to in regulation 175 were contained in some permissions previously granted by the Authority. That provision was intended to be merely a transitional provision, covering the period of time during which the CAPOM was first implemented. There are no longer any permissions containing any of the conditions or restrictions referred to in regulation 175. Therefore, that provision is redundant and has been repealed.

 

Item [61] – Regulation 179

 

This item repeals regulation 179, which regulation lists all cruise ship anchorages in the Whitsunday Planning Area. That provision is now redundant consequent upon the insertion of Schedule 1 into the Principal Regulations (see items [5], [6] and [66]).

 

As noted above, Schedule 1 provides a single consolidated list of all designated anchorages (cruise ship anchorages) throughout the Marine Park. Accordingly, regulation 179 has been repealed.

 

Item [62] – Subregulation 185(1)

 

This item inserts new paragraph 185(1)(aa) into subregulation 185(1), and is consequent upon new regulation 74A (see item [26]).

 

This amendment provides that a person whose interests are affected by a decision mentioned in new subregulation 74A(2) – that is, a decision as to whether there are special circumstances which would justify a decision by the Authority to treat the application as having been made before the expiry of the relevant permission – may ask the Authority to reconsider the decision.

 

Items [63] and [65] – Subparagraph 185(1)(a)(i) and subregulation 185(2)

 

These items repeal subparagraph 185(1)(a)(i) and subregulation 185(2), consequent upon the repeal of existing Division 2.5 Moorings in the Cairns Planning Area (see item [34]).

 

Existing Division 2.5 established the process for assessing applications for relevant permissions for the construction and conduct of moorings for vessels in the Cairns Planning Area. As that Division has been repealed, subparagraph 185(1)(a)(i) and subregulation 185(2) are now redundant and have therefore been repealed.

 

Items [64] – Subparagraphs 185(1)(a)(ii) and (iii)

 

This amendment is merely editorial in nature, and is consequent upon the repeal of subparagraph 185(1)(a)(i) (see item [63]). The amendment merely renumbers these subparagraphs as 185(1)(a)(i) and (ii), respectively.

 

Item [67] – Regulation 207

 

This amendment repeals a provision of the Principal Regulations which is redundant, consequent upon the repeal of section 56 of the Act pursuant to the Great Barrier Reef Amendment Act 2007 No. 106, 2007. Regulation 207 prescribes an amount of $150,000 for the purposes of section 56 of the Act, which previously required Ministerial approval for any contracts greater than $150,000. As section 56 of the Act has been repealed, regulation 207 has also been repealed.

 

Item [68] – Further amendments – notes about section 6.1 of the Criminal Code

 

These amendments remove the notes about strict liability from each of the provisions listed. As noted above, it is no longer Commonwealth government policy to insert notes of this kind.

 

Some strict liability offence provisions that have been inserted into the Principal Regulations do not contain this note (see item [39]). Therefore, existing notes of this kind have been removed to provide consistency throughout the Regulations (particularly Part 4A).

 



[1] The ‘Cairns Planning Area’ is described in Schedule 1 to the Cairns Area Plan of Management 1998, as amended by the Cairns Area Plan of Management Amendment 2008 (No. 1).

[2] The ‘Whitsunday Planning Area’ is described in Schedule 1 to the Whitsundays Plan of Management 1998, as amended by the Whitsunday Plan of Management Amendment 2008 (No. 1).


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