Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK REGULATIONS (AMENDMENT) 1997 NO. 326

STATUTORY RULES 1997 No. 326

ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT

Great Barrier Reef Marine Park Act 1975

Great Barrier Reef Marine Park Regulations (Amendment)

Purpose of Amendments

The purpose of these amendments to the Great Barrier Reef Marine Park Regulations are:

(i)        to finalise implementation of the Government's 1996 Budget decision to increase the fees and charges imposed in relation to the conduct of tourist and other activities in the Great Barrier Reef Marine Park ("the Marine Park"), to reflect the true cost of management of this important natural resource;

(ii)       to carry out some general house keeping amendments.

Amendment Details

The Environmental Management Charge (EMC) is imposed by way of the Great Barrier Reef Marine Park (Environmental Management Charge - Excise) Act 1993 and the Great Barrier Reef Marine Park (Environmental Management Charge - General) Act 1993. Section 39C of the Act provides that the amount of the EMC is to be ascertained in accordance with the Regulations. The EMC is a charge upon the holders of certain types of permissions for the Marine Park. The holder of the permission is liable to pay the prescribed amount for each visitor taken into the Marine Park (or per facility based upon various formulae). The EMC was increased at the beginning of 1997 and this increase completes the Government's 1996197 budget decision, which aims to establish a fairer sharing of the costs for the continued management of the Great Barrier Reef Marine Park between taxpayers and tourists who visit the reef.

The increased EMC is expected to raise an additional annual revenue of $2.8 million and provide a total EMC revenue of $5.5 million in the 1998/99 financial year. The EMC rate is increased by these regulations, up from $2 to $4. An automatic CPI increase is provided for (in increments of 50c), but such increases will only take effect 12 months after the rise is identified. Part day charges are to be implemented and a maximum charge equivalent to 3 days applies for extended tours. The Regulations also allow for the Authority to identify providers of 'secondary services' and exempt them from the EMC. A secondary service provider is a person who provides a tourist program which wholly comprises persons for whom, on that day, the EMC has already been accrued to another tourist operator. It is the Governments view that generally the EMC should generally be only paid once per day in respect of any particular individual taken into the Marine Park. Determinations of 'secondary service' providers are reviewable by the AAT.

The amendments also clarify the merits review provisions of the Regulations. These provisions apply to all permit related decisions (including transfers) under the Regulations. The principal matter of clarification is to identify that the Authority may 'affirm' a previous decision thereby enlivening the applicants right to seek external review by the AAT. Secondly, the amendment clarifies that a person aggrieved may not seek continuous internal reconsideration of a decision. This ensures that the decision may then be taken to the external review body. The clarification and layout of the provisions also provides for internal review and external merits review by the AAT of determinations of 'secondary services'. The inclusion of transfer decisions as reviewable decisions addresses earlier concerns raised by the Senate Standing Committee on Regulations and Ordinances.

The regulations also repeal some definitions and subregulation 52(2) which were recently inserted into the regulations (No. 296 of 1997). This follows concerns raised by the Senate Standing Committee on Regulations and Ordinances.

These regulations, other than those pertaining to increases in the EMC, are to commence on gazettal. The regulations imposing increases m the EMC commence on 1 April 1998.

Impact On Business

A regulation Impact Statement (RIS) for those amendments which have an impact upon business or which restrict competition is included at Attachment 1. Not all amendments proposed impact upon business and in accordance with Government policy, the RIS only deals with those amendments which do.

Attachment 1

The Regulations are amended specifically as follows:

Part 1 - Preliminary

Tins Part details the preliminary matters such as commencement and the title of the Principal regulations being amended.

Regulation 1: Commencement

This regulation provides for commencement of the CMC increases (and related provisions) on 1 April 1998. All other provisions commence upon Gazettal.

Part 2 - Amendments Commencing on Gazettal

This Part inserts new regulations and amends existing regulations.

Regulation 2.1: Omit r. 22 and r. 22A replace with new r. 22 and r. 22A

This regulation omits the existing regulation 22 which controlled review procedures and replaces with a series of new regulations which provide for the same review processes but in a more structured manner.

Regulation 22: Notice of certain decisions

This regulation requires the Authority to publish notification of specified decisions in the Gazette as soon as practicable after they are made. This list expands upon the previous requirements by including decisions relating to permit transfers and variations of permissions and conditions. Notification starts a clock for termination of affected parties rights to apply for reconsideration of a decision. Affected parties may apply for reconsideration before the decision is published.

Regulation 22A: Contents of a notice

This regulation sets out the contents of a notice required to be given in respect of a decision that is reviewable under r. 22.

Regulation 22B: Requests for reconsideration of decisions

This regulation provides that a person whose interests are affected by a decision identified in r. 22 may apply for a review of the Authority's decision. The test for standing is maintained, limiting reviews to those who have more than a mere intellectual interest in the matter.

The regulation does not apply to a decision that has already been reconsidered thereby correcting an error which had provided for perpetual reviews of the same decision.

Subregulation (3) has been omitted on purpose. The subregulation will be inserted on 1 April 1998 pursuant to Part 3 amendments. That subregulation will provide for reconsideration of a r. 35A determination by the Authority of a 'secondary service'.

Regulation 22C Reconsideration of decisions

This regulation requires the Authority to reconsideration a decision within 40 days of receiving a request from a person whose interests are affected by the decision. When reconsidering a decision, the Authority may make any decision it may have made in the first instance including a decision to affirm the previous decision. The first decision (except in the case of an affirmed decision) is then superseded.

Regulation 22D: AAT review of decisions after reconsideration

This provision provides that an application may be made to the AAT for the review of decision under r. 22C (the reconsidered decision). This provides the mechanism for granting jurisdiction to the AAT.

Regulation 2.2: Omit definitions r. 54

This regulation removes definitions not required with the omission of subregulation 56(2) (r. 3.3 below).

Regulation 2.3: Omit subregulation 56(2)

The regulation omits subregulation 56(2). This omission addresses concerns raised by the Senate Standing Committee on regulations and Ordinances and AttorneyGeneral's Department advice.

Part 3 - Amendments commencing 1 April 1998

This Part contains amendments which give effect to the Government 1996/97 Budget proposal concerning increases m the Environmental Management Charge. These amendments come into effect on 1 April 1998.

Regulation 3.1: Regulation 22B (Requests for reconsideration of decisions)

This regulation inserts into r. 22B a new subregulation (3) on 1 April 1998. This provides for the review processes (internal and external) to apply to a determination of a 'secondary service' by the Authority.

Regulation 3.2: Insert and amend definitions

This regulation inserts definitions for 'primary service' and 'secondary service'. These definitions provide for differentiation as to permission holders which pay the Environmental management Charge and those who are otherwise exempted (see r. 35A). The definitions also clarify that the 'transfer passenger' definition also applies to persons who are embarked or disembarked at a jetty or wharf which is also partly within the Marine Park. These are persons for whom an environmental management charge is not payable under the regulation.

Regulation 3.3: Insert new regulations 35A - C (Secondary services)

These new regulations deal with determination of secondary services which are exempt from paying the EMC.

Regulation 35A: Secondary services

This new regulation provides for the Authority to make a determination that a service which forms a part of tourist program is a 'secondary service' and is therefore not liable to pay the environmental management charge. To qualify as a secondary service, every visitor who uses the service must be likely to have been recorded as a visitor on another chargeable permission on that same day. This ensures that the environmental management charge is only paid once in respect of any one visitor on any one day on a standard tourist program charge.

The determination of the Authority is reviewable under the regulations internally and by external merits review at die AAT.

A determination is made upon an application by a permission holder, or an application from a person who is applying for a permission. The regulations prescribe the information the application must contain for the Authority to determine if the tourist program will be a 'secondary service'.

A determination must be made within 28 of an application.

Regulation 35B: Notice of decision

This regulation requires the Authority to notify the applicant of a decision in respect of the application for determination of a 'secondary service'.

Regulation 35C: Numbering of secondary services

The Authority must allot a unique number to each determination.

Regulation 3.4 Replace existing r. 37 with new Subdivision A - Standard tourist program charges

This subdivision sets out the charges to be applied with respect to standard tourist programs. The provision also sets out the CH increment of the standard tourist program charge and prescribes that any increased charge (calculated by CH increases) is to be applied from the year following the year in which the increase was calculated.

Regulation 36A: Meaning of certain terms

Inserts new definitions for 'charge year' and 'standard tourist program charge'.

Regulation 36B: Standard tourist program charge

This regulation prescribes that the standard tourist program charge in 1998 and 1999 shall be $4. This charge is to be increased by increments of $0.50 following accumulated increases in the Consumer Price Index (All Groups) for Brisbane which total $0.40 or more since the last increase. For CPI increases in excess of $1.40 the increase in the standard tourist program charge will be capped at $1.50. The 'new' standard tourist charge will. then be applied from 1 April in the year following the calculated accumulation.

Regulation 37: Payment of standard tourist program charge - general rule

This regulation provides that the standard tourist program charge of $4 is payable by the holder of a chargeable permission that is or includes a primary service for each visitor who takes part in the tourist program. This charge is qualified by subsequent regulations relating to Longer tours (r. 37C); Very short tours (r. 37D); Tours which arrive late or depart early (r. 37E) and regulations relating to Visitors for whom the standard tourist charge is not payable (r. 37F).

Regulation 37A: Visitors who have already undertaken chargeable activity

This regulation prescribes that a permission holder is not liable to pay the charge in respect of a visitor who has, on that day, already participated in a tourist program for which the charge was payable in respect of that visitor and the permission holder has evidence of that fact. A ticket or other dated receipt will be sufficient evidence of that fact.

Regulation 37B: Offence - altering ticket

The regulation makes it an offence to alter the date on a ticket of receipt. The maximum penalty is 10 penalty units ($1,000).

The regulation also makes it an offence for a permission holder to use a receipt or ticket they know to have been or have reason to believe has been altered, as evidence to deny liability to pay charge under the subdivision. The maximum penalty is 10 penalty units ($1,000).

Regulation 37C: Longer tours

The regulation provides that where a continuous primary service is longer than 3 days, the maximum charge payable for each visitor on that tour is three (3) times the standard tourist program charge.

Regulation 37D: Very short tours

The regulation provides that a primary service into the Marine Park of three (3) hours or less, the charge payable in respect of a visitor is only 50% of the standard tourist program charge.

Regulation 37E: Tours that arrive late or depart early

The regulation provides that primary services entering the marine park after 5pm or depart the Marine Park before 6am are only liable to 50% of the standard tourist program charge for each visitor on that day. This regulation does not apply in respect of Longer tours (r. 37C). Where the tour starts or finishes at a structure (jetty or wharf) that is partly in the Marine Park, embarking or disembarking at the structure is taken as entering or leaving the Marine Park (in the relevant context).

Regulation 37F: Visitors for whom charge is not payable

This regulation prescribes that the standard tourist program charge is not payable in respect of activities which are otherwise prescribed under a different subdivision of the regulations (ie r. 38 -non-motorised watersport beach equipment; r. 39 - dinghy operators; r. 40 - motorised watersport equipment and excursions covered under rr. 41, 42 or 46).

Regulation 37G: When charge payable

The regulation identifies that the charge is payable in April, July, October and January for the preceding quarter.

Subdivision B - Other charges

Regulation 3.5: Amend r. 50 (Vending operations charges)

This regulation amends r. 50 to refer to the new Subdivision A of Division 2 as a consequence of these amendments.

Regulation 3.6: Amend r. 52 (Record keeping)

This regulation corrects r. 52(1) for the changes inserted by these regulations and clarifies that a permission holder who uses a ticket or receipt to claim exemption from liability to pay the environmental management charge under r. 37B is required to keep the ticket or receipt for a period of 2 years after the date. on the ticket or receipt.

REGULATORY IMPACT STATEMENT

GREAT BARRIER REEF MARINE PARK REGULATION AMENDMENTS No. of 1997

Introduction

The Great Barrier Reef Marine Park Amendment Regulations deal with the implementation of the Government's 1996197 Budget decision to increase the Environmental Management Charge under the Great Barrier Reef Marine Park Regulations.

The Great Barrier Reef Marine Park is a World Heritage Area and is managed by the Great Barrier Reef Marine Park Authority (the Authority).

Problem And Policy Objective

The Governments decision to increase the Environmental Management Charge (EMC) from $2 to $4 per passenger per day, with concessions, is intended to improve cost recovery for the use and management of the Park, m particular, the management of tourism which is the largest and fastest growing use of the Marine Park.

The increase in the EMC is consistent with the Government's support for user pays and cost recovery for the management of Australia's protected areas.

The increase in the EMC will raise additional gross revenue of $2.8 million per which will be paid to Consolidated Revenue. An equivalent amount will be included m the Appropriation to the Great Barrier Reef Marine Park Authority. The costs of collecting the increased EMC will be met from Authority appropriations.

Implementation Options

The increased EMC will come into effect on 1 April 1998. This is a deferral of 15 months from the date envisaged for the increased charges in the original budget decision. There will be no transitional arrangements.

The original 1996197 Budget decision was to increase the EMC from $1 per head per day to $6 per head per day. In accordance with representations from tourism operator associations and the travel industry, the Government decided to increase the EMC to $2 per head per day from 1 January 1997 and consider other options for the remainder of the increase including collection of a $4 visitor charge from tourists by the Authority. Following lengthy consultations with industry over the collection of a visitor charge, several industry groups proposed an arrangement based on increasing the EMC to $4. The Government accepted this proposal.

The increased EMC will be paid by operators using the existing EMC logbook recording and payment system. Accordingly, there will be minimal additional collection costs.

It has been agreed with industry that tourist operators may identify the EMC on tickets, brochures and other marketing material.

Impacts Of Implementation

Impact Groups

Tourist Operators

The EMC is a charge on tourist operators for their commercial use of the Marine Park. It is calculated on the number of passengers carried. Most tourist operators have indicated that they will include and identify the EMC m their ticket prices. Collection and compliance action should have a minimal impact on operators.

Visitors To The Great Barrier Reef Marine Park

There are approximately 1.4 million visitors to the Marine Park each year This is the group mainly affected by the EMC should operators include the EMC in ticket prices. It is considered unlikely that many visitors will object to paying an additional $4 to visit the reef particularly when most reef visits cost more than $100 and may be part of a holiday/travel package costing thousands of dollars. Anecdotal evidence indicates that many visitors are prepared to pay an additional fee if they know that it is being directed to reef management

The proposed EMC regulations will include concessions to lessen the financial impact on long term tours (ie. maximum charge of three days) and visitors undertaking more than one tour on a particular day (ie. standard EMC payable only once per day).

Assessment of Costs

As the EMC will be collected using existing recording and payment systems there will be minimal additional collection costs mainly associated with the application of the new concessions. In view of the increased revenue involved a more comprehensive EMC compliance/enforcement program will be required. Additional administration and compliance costs should not exceed $200,000 per annum.

The collection/compliance costs will be met from GBRMPA's annual appropriations.

The compliance costs to tourist operators will be no greater than at present

Some elements of the tourism and travel industry claim that the imposition of additional Government charges will have marketing and public relations disadvantages that will damage Australia's reputation and price competitiveness as a holiday destination. The Government rejects this clam The Government is of the view that the imposition of the increased charge will contribute to improved management and protection of the Marine Park and thereby increase its marketability m offshore markets.

Assessment Of Benefits

The generation of additional revenue through the EMC will assist m the recovery of some of the costs of managing Australia's Great Barrier Reef Marine Park and reduce the Authority's reliance on budget appropriations. Adequate funding will allow the GBRMPA to develop effective management plans and other tools to ensure that tourism use can be maintained at sustainable levels while ensuring minimum impact on the resource.

Consultation

There has been extensive consultation with tourism operators and the travel industry since the original 95/96 Budget decision to increase charges. The level of the EMC, the various concessions and the current collection arrangements were formulated in response to problems and difficulties raised by the industry.

Conclusion

The increased EMC with concessions as set out in the Regulations has been proposed by industry groups and accepted by government as the most cost effective way of implementing user pays by the tourism industry in relation to its use of the GBR Marine Park.