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Marine Parks Bill 2004
Marine Parks Bill 2004
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Marine Parks Bill 2004.
Policy Objectives of the Legislation
The Marine Parks Bill 2004 ("the Bill") will provide for the protection and
maintenance of the marine environment while allowing for its ecologically
sustainable use. The Bill has been drafted to be consistent with current
legislative drafting practice and modern language. As a consequence,
particular sections, clauses and sub-clauses are not considered to require
detailed explanation and these Explanatory Notes focus on policy matters
that are specific to the technical content of the Bill.
The Bill will replace the Marine Parks Act 1982. It will update the
legislation to promote modern standards for the conservation of the
Queensland's marine environment.
Reasons for the Bill
The current Act has not been significantly amended since its enactment in
1982 and does not reflect current knowledge, community expectations or
best practice management with respect to the conservation of the marine
environment. The current Act has a number of particular deficiencies,
which are addressed in the Bill:
· It does not provide a clear statement of purpose to guide decisions and
actions taken under the Act;
· It does not adequately promote modern accepted standards for the
management of marine parks and marine environment generally
which are based on a multiple-use, ecosystem, cooperative and
participatory management approach;
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Marine Parks Bill 2004
· Provisions dealing with the reclamation of marine park areas are
ambiguous resulting in administrative uncertainty, divergent legal
interpretation, public criticism and potential legal challenge;
· It does not provide adequate authority to manage vessel operations
and their associated impacts on the resources and users of a marine
park, despite vessels providing the primary mode of access and
transport in such areas;
· Penalty levels for offences under the Act have not kept pace with other
offences of a similar character and therefore offer little deterrent
value; and
· It pre-dates the establishment of fundamental legislative principles
under the Legislative Standards Act 1992, and in particular, does not
have sufficient regard to Aboriginal tradition and Island custom;
contains enforcement powers without necessary community
safeguards; and does not subject important decisions such as zoning
plans and permits to public scrutiny or appeal processes.
Achieving the Objectives
The objectives of the Bill will be achieved by repealing the existing Act and
replacing it with a Bill that continues to adopt the core elements of the
model provided by the Great Barrier Reef Marine Park Act 1975, while
resolving the deficiencies outlined above. In particular, key features of the
Marine Parks Bill include:
· A new "Objects" provision which promotes the conservation of the
marine environment and the principles of ecologically sustainable use;
· Formal recognition of the cooperative arrangements between the
Queensland and Commonwealth Governments in relation to the Great
Barrier Reef to simplify, as far as practicably possible, the complex
legislative environment created by uncertain boundaries and
jurisdictions;
· Avenues for increased involvement by Aboriginal and Torres Strait
Islander peoples and the general community in marine park planning
and management;
· Increased security for marine parks through the requirement to table
information about the downgrading of zones in the Legislative
Assembly and increased penalties for inappropriate entry or use; and
· A balanced approach to the assessment and management of
reclamation in marine parks involving early consideration of the
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Marine Parks Bill 2004
potential impacts resulting from both the reclamation and excision of
reclaimed areas, public scrutiny, and where these requirements are
met, a non-Parliamentary excision process for general use and habitat
protection zones.
Alternatives to the Bill
The alternatives to the creation of a new Bill, which repeals the existing
Marine Park Act would be to leave the current legislation as it is and not
proceed with amendments, or to incorporate any necessary amendments
into the structure of the existing Act. As some amendments are essential
(eg. on processes for reclamation) and as the current Act does not comply
with current legislative standards, the amount of redrafting required is
considerable, and the framing of a new Bill has been adopted by the Office
of the Queensland Parliamentary Council as the most efficient and effective
drafting method.
Administration costs
The amendments will not impose further costs on either the EPA or other
Government departments. The Bill promotes a coordinated and integrated
approach with other marine legislation, thus encouraging the formulation
of arrangements to maximise efficiencies in management.
Consistency with Fundamental Legislation Principles
The Bill has been drafted with due regard to the fundamental legislative
principles outlined in section 4 of the Legislative Standards Act 1992. The
following elements of the Bill are, however, situations where a balanced
interpretation of the principles, rather than their literal application, has
been considered necessary.
Retrospective validation of past reclamations
A retrospective amendment has been included in the Bill to validate past
zoning plans and permits in connection with reclamation in marine parks.
The proposed amendments will remove any uncertainty over the validity of
reclamations completed before the commencement of the Bill and the
status of land which has been removed from marine park as the result of
reclamation works.
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Marine Parks Bill 2004
Delegation of legislative power to prescribe penalties over 20
penalty units
The Bill allows penalties of up to 165 penalty units to be provided for in
zoning plans (clause 24) and regulations (clause 150). The view of the
Scrutiny of Legislation Committee is that the maximum penalties applied
under subordinate legislation should be generally limited to 20 penalty
units. The level of penalties allowed in the Bill is identical to the level
provided under the Nature Conservation Act 1992. This is necessary to
allow consistency of penalties for offences on national park islands and
adjoining marine park beaches, and for protection of wildlife such as
seabirds on islands and adjacent beaches and waters.
In addition, current penalties for offences in regulations and zoning plans
under the Great Barrier Reef Marine Park Act 1975 can apply a maximum
of 50 (Commonwealth) penalty units, which equates to roughly 75 penalty
units under the State's penalty unit conversion formula. State-
Commonwealth Offshore Constitutional Settlement agreements that
require the Queensland marine parks legislation to be brought into line
with the Great Barrier Reef Marine Park Act 1975 make it necessary for
the framing of the Bill, regulations and zoning plans to be able to provide
consistent State and Commonwealth penalty levels. It is impossible, for
example, for every penalty contained in a Commonwealth zoning plan to
be omitted from the matching State zoning plan and instead inserted in the
Bill.
Delegation of legislative power only in appropriate cases
The Bill allows for the development of plans for marine parks which zone
different locations for different categories of use. The zoning plans may
limit some forms of use or even prohibit entry completely in some cases.
The regulatory framework allowed under the Bill is the same as the
framework allowed under the existing Act, upon which all existing marine
park zoning plans are based.
The Scrutiny of Legislation Committee is of the option that the greater the
level of potential interference with individual rights and liberties, the
greater the likelihood that the power should be in an Act of Parliament and
not delegated. The level of legislative intervention theoretically possible in
zoning plans is recognised as not being strictly in keeping with
recommendations of the Scrutiny of Legislation Committee.
In addition, the scheme for issuing, amending and canceling permissions to
enter or use a marine park is to be provided for by regulation. This provides
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Marine Parks Bill 2004
an appropriate degree of flexibility given the large number of permissions
involved.
However, the State-Commonwealth commitments to cooperative planning
and management of marine parks make it essential for the Act, regulations
and zoning plans to be similar to the Commonwealth models adopted for
the Great Barrier Reef. In addition, zoning plans are developed with a very
high level of public participation, and are subject to tabling in Parliament
and potential disallowance. In practice, the powers which the Bill conveys
in relation to the framing of marine park zoning plans and regulations are
well accepted, and limitations on individual rights and liberties of some
sectors of the community are only applied where this is needed to
maximise beneficial outcomes for the community as a whole.
Codes of practice
The making of codes of practice under clauses 141 to 143 of the Bill raises
a potential fundamental legislative principle issue. The Scrutiny of
Legislation Committee is of the view that an Act should not permit
statutory instruments of a legislative nature to be made other than by
regulation. It is not envisaged that codes would be "of a legislative nature".
They are mostly intended as "best practice" documents, or standardised
sets of provisions that might otherwise be included as permit conditions.
The Bill, however, applies sections 49, 50 and 51 of the Statutory
Instruments Act 1992 to the codes as if they were subordinate legislation.
The codes must therefore be tabled in Parliament, and are subject to
potential disallowance. Similar processes are adopted for codes under other
legislation such as the Nature Conservation Act 1992.
Sufficient regard to the institution of Parliament
The process allowed in the Bill for excising reclaimed areas from marine
parks (except in "highly protected areas" such as conservation park zones,
national park zones and preservation zones) removes the requirement to
seek a resolution of Parliament. However, the Governor in Council's
preliminary "notice of intent" to revoke the area prior to the issue of a
marine park permission is subject to the requirements of sections 49, 50
and 51 of the Statutory Instruments Act 1992 and must be tabled in
Parliament and could be subject to disallowance. The revocation of an area
of marine park prior to the undertaking of reclamation works is not
desirable, as it would totally remove a development from the scope of the
Bill. This, in turn, would prevent the Chief Executive from imposing
management, rehabilitation, monitoring and supervision conditions and
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Marine Parks Bill 2004
bonds, from adequately protecting adjacent marine park areas and from
managing the reclamation until its completion. The provisions are
considered to be balanced in that a Parliamentary resolution will still be
required before a "highly protected area" could be revoked, and Parliament
has three opportunities for disallowance of any provisions related to
revocation of areas which are not "highly protected":
· firstly, in the approval of the relevant zoning plan, which must
incorporate provisions allowing for reclamation works in the
respective zones before any reclamation can occur;
· secondly, through the tabling of the Governor in Council "notice of
intent" prior to the grant of any permit for the reclamation; and
· thirdly, through the tabling of the Governor in Council regulation
revoking the reclaimed area following satisfactory completion.
Sufficient regard to the rights and liberties of individuals
A number of offence provisions in the Bill carry a penalty in certain
circumstances of 3 000 penalty units, or 3 000 penalty units or 2 years
imprisonment. At present, the maximum penalty that can be imposed is 100
penalty units. This offers little deterrent value. In many cases the financial
rewards for committing the offence are substantially greater than the
financial liability attached to the offence itself. In addition, many offenders
are unincorporated entities therefore section 181B of the Penalties and
Sentences Act 1992 which provides for maximum penalties for
corporations of 5 times the maximum for an individual does not apply. This
is a significant shortcoming especially where the offence relates to
significant damage to the environment or the use and non-use values of a
highly protected area (for example, a marine national park zone) of a
marine park.
The proposed penalty units are generally consistent with other natural
resource management legislation including the Commonwealth Great
Barrier Reef Marine Park Act 1975 and will enhance conservation
outcomes sought under the Bill.
Power to enter premises, and search for or seize property, only
with a warrant
The Bill allows an inspector to enter and search a vessel, vehicle or aircraft
without consent or a warrant. However, it only applies if the vessel etc. is in
a marine park. Also, the Bill requires the inspector:
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Marine Parks Bill 2004
· to take reasonable steps to attempt to tell the owner or person in
control of the inspector's intention to enter;
· after entering, to leave a notice in a conspicuous placing stating when
and why the entry happened and what powers were exercised; and
· to take reasonable steps to request that the person in control of the
vessel etc. accompany the inspector before entering an area used only
as a living area.
These powers and requirements are standard enforcement powers under
most legislation dealing with vessel, vehicles and aircraft and are
considered essential. In the absence of such provisions, the ability to
search vessels, vehicles or aircraft in marine parks for the presence of
illegally taken marine products would be seriously undermined.
Reversal of onus of proof
The Bill provides that, if a person acting under the authority of another is
convicted of an offence, the person with authority (eg. an executive officer
of a corporation, a holder of a permit or an owner or another person in
control of a vessel, vehicle or aircraft) is taken to have committed an
offence of failing to ensure that the persons acting under their authority
comply with that provision (see clause 136, 137 and 138 of the Bill). These
sections, however, provide for a defence that the relevant officer exercised
reasonable diligence or that the officer was not in a position to influence the
conduct of their subordinates. Whilst the provisions in the Bill could be
considered to reverse the onus of proof, they are considered essential to
ensure that there is effective accountability at the top management and
decision-making level. Such obligations are now reflected in most natural
resource management legislation as well as national and international
standards for environmental management (eg AS/NZS ISO14000:
Environmental Management Systems (Standards Australia, 1996)).
Consultation
The EPA involved more than 150 stakeholders representing the Great
Barrier Reef Marine Park Authority, Environment Australia, local
government, conservation, Indigenous interests, tourism, commercial and
recreational fishing, industry and science to participate in the development
of the Bill. In addition, the EPA consulted extensively with the following
Agencies throughout the development of the Bill:
· Department of the Premier and Cabinet;
· Queensland Treasury;
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Marine Parks Bill 2004
· Department of State Development and Innovation;
· Queensland Police Service;
· Department of Justice and Attorney-General;
· Department of Transport;
· Department of Natural Resources, Mines and Energy;
· Department of Primary Industries and Fisheries;
· Department of Tourism, Fair Trading, and Wine Industry
Development;
· Department of Local Government, Planning, Sport and Recreation;
and
· Department of Aboriginal and Torres Strait Islander Policy.
All stakeholders have indicated support for the proposed amendments.
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 provides that the title of the Bill will be the Marine Parks Bill
2004 ("the Bill").
Commencement
Clause 2 provides that Parts 12 (Validation and declaration provisions) and
13 (Amendment of the Marine Parks Act 1982) commences on assent
while the remainder of the Bill commences on a date to be fixed by
proclamation.
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Marine Parks Bill 2004
Definitions
Clause 3 refers to the dictionary in the schedule of the Bill that defines
particular terms used in the Bill.
Notes in text
Clause 4 provides that a note in the text of the Bill is part of the Bill.
Purpose of Bill
Clause 5 defines the main purpose of the Bill as being to provide for the
conservation of the marine environment. This clause also defines how the
purpose and object of the Bill is to be primarily achieved by express
statements of principle and strategies.
In addition, clause 5 provides that it is a function of the Bill to implement
State-Commonwealth agreements as far as practicable on the Great Barrier
Reef entered into in connection with the 1979 Offshore Constitutional
Settlement.
The Offshore Constitutional Settlement provides that the States are
responsible for marine parks within coastal waters of the States, and the
Commonwealth is responsible for marine parks further offshore. However,
a specific exception was made for the Great Barrier Reef, where the
Commonwealth Great Barrier Reef Marine Park Act 1975 was to apply in
to low water on the Queensland coast. The Queensland and
Commonwealth Governments agreed that the Queensland marine parks
legislation would be brought into line, as far as practical with the
Commonwealth, and that Queensland would be assigned the role of day to
day management for the Great Barrier Reef Marine Park.
Throughout the Bill, many clauses are included to maintain uniformity
with the Commonwealth Great Barrier Reef Marine Park Act 1975.
Bill binds all persons
Clause 6 provides that the Bill will bind all persons, Queensland, other
States, and the Commonwealth. However, the Commonwealth,
Queensland, or another State cannot be prosecuted for an offence under the
Bill.
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Marine Parks Bill 2004
Territorial application of Bill
Clause 7 provides that the Bill has extra-territorial application. Under the
Offshore Constitutional Settlement, the States are responsible for marine
parks within coastal waters of the States, and the Commonwealth is
responsible for marine parks further offshore. This provision is
consequently not intended to take the seaward application of the Bill
outside Queensland coastal waters unless this is specifically negotiated
with the Commonwealth, or where there is uncertainty over the location of
offshore jurisdictional boundaries.
Clause 7 also provides that if all or part of a marine park is within a marine
park established under the Commonwealth Act, the Bill is intended to
operate only to the extent that it is consistent with the operation of the
Commonwealth Act. The clause is framed so as to confirm the superiority
of Commonwealth legislation in the case of inconsistency, but to address
the matter of inconsistency at the detailed operational level, rather than at
the level of the Commonwealth having covered the field on the whole of
the subject matter of marine parks. For example, where a State and a
Commonwealth plan both had a requirement for a tourism permit in a
particular area, the Commonwealth provision clearly prevails and there is
no room for the State provision. However, if the Commonwealth legislation
is totally silent, for example on the matter of organised events or domestic
animals, the State provisions could still operate.
Part 2 Marine Parks
Division 1 Establishment
Declaration of park
Clause 8 provides for the declaration and amalgamation of marine parks by
regulation made by the Governor in Council. The Bill will allow non-tidal
lands and waters to be included in a marine park, but only if the land or
waters are contiguous with and have a relationship with the tidal land or
waters within the declared area. This overcomes some difficulties
encountered under the present legislation where natural erosion and
accretion cycles on reefs and elsewhere result from time to time in the
inadvertent removal of areas from marine park status because the
legislation does not allow non-tidal land to be part of a marine park. It also
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Marine Parks Bill 2004
accommodates situations where there is uncertainty over whether or not
some areas are tidal such as in wetland areas and facilitates boundary
descriptions and interpretations.
The regulation must also describe, or define by map, the boundaries of the
declared park and assign a name to the park.
Clause 8 also allows marine parks to include land and waters beyond the
outer limits of Queensland waters where connected with Queensland
including any area regulated under a law of another Queensland Act and
any area containing anything owned by the State or constructed or placed
in waters by or under an agreement with or the authority of the State.
Division 2 Revocation
Revocation of park
Clause 9 provides that a regulation may revoke the declaration of part or all
of a marine park only if the Legislative Assembly has, following 28 days
notice, passed a motion requesting the revocation. Some exceptions to this
rule are provided in clauses 11, 12 and 19. Consultation on the making of
the regulation will be conducted in accordance with Part 5 of the Statutory
Instruments Act 1992 except in relation to regulations made under clause
19. In the latter case, consultation will occur as part of the environmental
impact statement (EIS) process.
Publication of revocation notice
Clause 10 provides that within 10 days after the notice of motion
mentioned in clause 9 is given, the Chief Executive must publish a notice
of the proposed revocation in a newspaper circulating in the locality of the
marine park and throughout the State.
Revocation of park included in or amalgamated with another
park
Clause 11 provides that if a regulation amalgamates existing marine parks
or declares a new marine park that includes an existing marine park, the
regulation may also revoke former declarations that have thus been made
superfluous without a resolution of the Legislative Assembly. This is
simply a technical provision. In practice, no marine park area is actually
removed in such situations.
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Marine Parks Bill 2004
Revocation of park comprising a protected area under Nature
Conservation Act 1992
Clause 12 provides that if part of a marine park is dedicated as a protected
area (eg. a national park) under the Nature Conservation Act 1992 and the
protected area provides a higher level of protection of the park's marine
environment than the Bill, a regulation may revoke the part of the park
comprising the protected area without a resolution of the Legislative
Assembly. This simply clarifies a situation that has previously resulted in
some uncertainty, and avoids duplication of management regimes and
permits. The area remains set aside for conservation purposes. The only
category of protected area likely to be declared over a marine park would
be a national park or conservation park. Interpretation of the provision in
practice will consequently be straightforward, as these categories correlate
directly with names and management objectives of marine park zones.
Division 3 Reclamation of tidal land, and revocation
Simplified outline of div 3
Clause 13 provides that generally, division 3 provides for the procedure for
revoking, in particular circumstances, the declaration of a reclaimed part of
a marine park without the need for a resolution of the Legislative Assembly
mentioned in clause 9(2).
Notice of proposed revocation of reclaimed part of park
Clauses 14 to 19 clarify the processes that will, in future, be applied to
most commercial developments for tourism, marinas, port development,
foreshore reclamation and similar purposes in marine parks. Reclamation
works generally lead to the development of land that needs to be removed
from marine park status. The provisions in the Bill provide clarity and
certainty for developers at all stages, even where the development may be
staged or take some years to complete. They also allow for an area under
development to remain in a marine park subject to the environmental
supervision of the Chief Executive until the works are fully completed.
Clause 14 provides that the Governor in Council may by gazette notice
state the intention to revoke the declaration of a reclaimed part of a marine
park by regulation. The notice must identify the marine park, define by map
or description the proposed boundaries of the reclaimed part of the park,
and state when the notice will expire.
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Marine Parks Bill 2004
Although the notice is not subordinate legislation, sections 49 to 51 of the
Statutory Instruments Act 1992, will apply to it, as if it were subordinate
legislation. That is, the notice must be tabled in the Legislative Assembly
and can potentially be subject to a disallowance motion.
The future revocation of marine park status is, in practice, subject to certain
procedures that involve the Chief Executive issuing a permission for the
reclamation under clause 15 and giving the permission holder a certificate
of satisfactory completion for the reclamation.
Permission for carrying out proposed reclamation
Clause 15 outlines the requirements for issuing a permission for reclaiming
tidal land in a marine park if, on completion of the reclamation, the
declaration of the reclaimed part of the park is intended to be revoked. The
Chief Executive may issue such a permission only if this is compatible with
the zoning of the area, and if a notice of intention to revoke the reclaimed
part of the marine park under clause 14 is in force.
If the land is in a highly protected area (eg. a national park or conservation
park zone) clause 15 provides that the Chief Executive may not issue a
permission for reclamation involving removal of an area from marine park.
It is unlikely that a development involving major reclamation works would
be proposed in a highly protected zone, but if such a situation were to arise,
the area would need to be rezoned under the provisions of part 3 of the Bill,
or removed from the park following a resolution of the Legislative
Assembly pursuant to clause 9.
Clause 15 also requires the Chief Executive to consider an EIS, written
submissions and any other matter prescribed under a regulation or zoning
plan before issuing the permission.
Clause 15 does not apply if the reclamation is necessary:
(a) to deal with an emergency involving a serious threat to a natural or
cultural resource; or
(b) to protect property from erosion; or
(c) to restore property after erosion; or
(d) to carry out small-scale works by or for a public authority, for a public
purpose, and the works:
(i) are not prohibited under a regulation or zoning plan; and
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Marine Parks Bill 2004
(ii) involve only minimal disturbance to the park's natural resources,
or minor alienation of parts of the park from enjoyment by the
public.
EIS required
Clause 16 requires an applicant seeking permission for reclamation in a
marine park under clause 15, to give the Chief Executive an EIS prepared
in accordance with this clause. The EIS must consider:
· how the reclaimed part of the park is proposed to be used;
· the likely impacts on the environment and use and non-use values of
the marine park and adjacent or contiguous areas.
The EIS must also include the information that would, but for clause 19(5),
be required under the Statutory Instruments Act 1992, section 44, for a
regulatory impact statement about the proposed regulation revoking the
declaration of the reclaimed part of the park. This will ensure that all major
issues associated with the reclamation and potential regulation revoking the
reclaimed area are adequately considered before the issue of a permission
in order to provide greater decision-making and project certainty.
The EIS must be prepared under any guidelines or terms of reference,
approved by the Chief Executive. However, the clause recognises that, for a
major development, the EIS might be prepared under legislation such as the
State Development and Public Works Organisation Act 1971 or the
Integrated Planning Act 1997, in which case the requirements of the Chief
Executive under the marine parks legislation might be incorporated into a
larger document. Clause 16 allows the Chief Executive to require the
applicant to give the Chief Executive additional information about a matter
mentioned under clause 16(1) and (2).
In practice, the EIS would be provided to the Chief Executive before the
Governor in Council gives notice under clause 14.
Public consultation about EIS and other information
Clause 17 requires the applicant for the permission to publish, in a
newspaper likely to be read by persons particularly affected by the
proposed reclamation and revocation, a notice about the EIS and any
additional information given to the Chief Executive under clause 16(4).
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Marine Parks Bill 2004
Certificate of satisfactory completion
Clause 18 provides that if the Chief Executive is satisfied the reclamation
has been completed in accordance with the permission under clause 15, the
Chief Executive must give the permission holder a certificate of
satisfactory completion for the reclamation. This is a procedural step that
basically clears the way for the final revocation of the developed area from
marine park status.
Revocation of reclaimed part of park
Clause 19 allows for a regulation to be made revoking an area of a
reclaimed part of a marine park without a resolution of the Legislative
Assembly in a limited range of situations.
The clause is primarily intended to allow for the formal revocation of
marine park status where an area has been reclaimed by development
works under division 3. In such situations there are a number of
preconditions to be met, as outlined above, including the need for the
reclamation works to be allowed for in any relevant zoning plan, and the
approval of a notice under clause 14 by the Governor in Council. Both the
zoning plan and the notice must be tabled in the Legislative Assembly
under the provisions, respectively, of section 49 of the Statutory
Instruments Act 1992 or clause 14(5) of the Bill.
The clause also covers the situation where a development has been
commenced under a permit but not completed, or where illegal reclamation
has taken place, and where it is not practical to rehabilitate the area
involved.
A regulatory impact statement under the Statutory Instruments Act 1992 is
not required for the making of a regulation under this clause. The
requirements for preparing an EIS under clause 16 of the Bill are
considered to provide a comparable public process, and in situations where
illegal reclamation has been undertaken or authorised reclamation has been
completed there is little point in undertaking a RIS after the event when
most marine park values have already been lost.
Finally, the clause includes a transition provision through the reference in
subclause 19(6) to clause 160 of the Bill. This accommodates situations
where reclamation works are commenced under a permit issued under the
current Act, but completed after introduction of the new provisions of the
Bill.
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Marine Parks Bill 2004
Division 4 Other provisions about marine parks
What park comprises
Clause 20 provides that a marine park established before or after the
commencement of the Bill comprises the land and waters in the park's
declared area, the park's associated airspace, subsoil and other natural and
cultural resources. Any land or waters resulting from reclamation works
carried out after the park is established remain in the park (unless they are
revoked under other provisions of the Bill after commencement of the Bill),
but any reclamation completed prior to the commencement of the Bill in
accordance with the transition provisions in clause 165 is not part of a
marine park. This removes any possible doubts over the status of
reclamation works carried out under permits granted under the current
legislation.
Part 3 Zoning and management plans
Division 1 Zoning plans
Subdivision 1 Prescription
Zoning plan
Zoning plans work in a similar way to local government town plans in
designating certain areas of a marine park for certain types of activity. They
are central to the whole operation of the multiple use framework which has
been adopted for marine parks in Queensland, and which is also at the core
of the Commonwealth Great Barrier Reef Marine Park Act 1975.
It should be noted, however, that a park could sometimes be declared
without a zoning plan being immediately put in place, in which case the
park is managed under certain basic provisions set out in regulations.
It would also be possible for a marine park or a defined marine area to be
managed under a special set of regulations in cases where the usual zoning
model was not considered appropriate, and this is likely to be the case for
the management of the proposed dive site over the former HMAS Brisbane.
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Marine Parks Bill 2004
Nonetheless, zoning plans have been prepared for all marine parks in
Queensland to date, and this will continue to be the most frequent practice.
Clause 21 provides that a regulation may prescribe a zoning plan for a
marine park if the plan has been prepared under sections 22 and 23. The
plan is subordinate legislation and the normal tabling and disallowance
procedures in sections 49 to 51 of the Statutory Instruments Act 1992 apply
to it.
Preparation and notice of draft plan
Clause 22 outlines the process for preparing a draft zoning plan. The
Minister must ensure that the content of the plan complies with clause 24
(Content of zoning plan), and that public notice is given about it. The
notice must state:
· the marine park to which it applies;
· where the plan and associated documents are available for free
inspection, during normal business hours at a department office, or on
the department's web site.
The notice must also invite members of the public and other persons to
make written submissions to the Minister about the plan, within a stated
period.
In addition, subclause 22(4) allows discretion not to release a draft of
proposed amendments in situations where consultation has occurred
through other avenues or where the legislation is to be uniform or
complementary with other legislation.
Preparation of final plan
Clause 23 provides that the Minister must prepare a final zoning plan after
considering each submission made in accordance with the public notice
and submission process under clause 22. The Minister must also prepare
the final plan having regard to the purposes of the Bill.
Content of zoning plan
Clause 24 sets out the content requirements of a draft or final zoning plan.
The plan must state the following for each zone or designated area within
the marine park:
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Marine Parks Bill 2004
· its name;
· the objects of the zone or designated area;
· the purpose for which it may be entered; and
· the external boundaries, by map or appropriate description, if a park
consists of 2 or more zones or designated areas.
Subclause 24(2)(a) makes it clear that a zoning plan may allow for the
reclamation of tidal land, thus linking back to the earlier provisions of
clause 15(1)(a)(i) dealing with approval processes for reclamation which is
intended to result in revocation of an area from a marine park.
Subclause 24(2)(b) allows for a maximum penalty of not more than 165
penalty units for contravening the plan. The level of penalties allowed in
the Bill is identical to the level provided under the Nature Conservation Act
1992. This is necessary to allow consistency of penalties for offences on
national park islands and adjoining marine park beaches, and for protection
of wildlife such as seabirds on islands and adjacent beaches and waters.
Subdivision 2 Amendment
Amendment of zoning plan
Clause 25 allows a zoning plan to be amended by regulation, but requires
any amendment to be subject to the release of a draft for public comment
and consideration of public submissions as provided by clauses 26 and 27.
Subclause 25(2) allows a discretion not to release a draft plan if the
amendment is minor, not a change of substance, or of a type the zoning
plan says may be made under this provision.
In addition, subclause 25(3) also allows discretion not to release a draft of
proposed amendments in situations where consultation has occurred
through other avenues or where the legislation is to be uniform or
complementary with other legislation.
Preparation and notice of draft amendment
If the public consultation exemptions under clause 25 do not apply, clause
26 sets out the requirements for public notice of a draft amendment to a
zoning plan. The Minister must prepare and give public notice about a draft
amendment and must allow at least 28 days for written public submissions
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Marine Parks Bill 2004
on the draft amendment. A fee, if any, may be charged for a copy of the
draft amendment.
Preparation of final amendment
Clause 27 provides that the Minister may prepare a final amendment to a
zoning plan after considering each submission made under clause 26, and
having regard to the purposes of the Bill.
Subdivision 3 Other provisions
Tabling of statement with zoning plan or amendment
Given the multiple use nature of marine parks it would be possible for a
highly protected area to be downgraded through a rezoning process. This
might for example be associated with declaration of a larger area of highly
protected status at another location after negotiation with fishing and
conservation interests as has occurred. Unlike the downgrading of national
parks under the Nature Conservation Act 1992, such actions presently do
not involve a resolution of the Legislative Assembly.
To support Parliamentary scrutiny and involvement, clause 28 now requires
any downgrading of a zone to be specifically drawn to the attention of the
Legislative Assembly. The clause states that if the level of protection for the
marine environment of a zone is decreased, the Minister must, under
section 49 of the Statutory Instruments Act 1992, table a statement in the
Legislative Assembly:
· identifying the zone, and location of the area, where the level of
protection is decreased; and
· giving reasons for the decrease.
The downgrading of an area will generally happen as part of a larger
planning exercise involving public comment, release of draft plans and
consideration of various options by the Chief Executive and Minister. In
addition, zoning plans provide area-based management using a system of
zones and designated areas. It is possible, therefore, to isolate the
consideration of issues relating to the downgrading of an area from other
areas managed under the zoning plan. Parliament could, therefore, under
section 50(5) of the Statutory Instruments Act 1992, disallow provisions
downgrading a zone, without affecting the operation of the remainder of
the zoning plan.
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Marine Parks Bill 2004
Division 2 Management plans
Subdivision 1 Approval
Approval of management plan
Management plans provide for the detailed site management of local areas
within a marine park. They are normally concerned with a much greater
level of detail than zoning plans, and are only required when there is
relatively high use of an area. The management plans are policy documents
which are used to support decisions on approvals. In circumstances where
restrictions on certain forms of public activity are necessary, a management
plan may be supported by specific regulations, as has occurred in the
Cairns area, the Whitsundays and the Hinchinbrook area under existing
management plans prepared under the Commonwealth Great Barrier Reef
Marine Park Act 1975.
Clause 29 provides that if a management plan for a marine park, is
prepared under sections 30 to 32 of the Bill, the Governor in Council may
by gazette notice, approve the plan. Although the gazette notice is not
subordinate legislation, sections 49 to 51 of the Statutory Instruments Act
1992, will apply to it, as if it were subordinate legislation. That is, the
notice and management plan must be tabled in the Legislative Assembly
and can potentially be subject to a disallowance motion.
Preparation of draft plan
Clause 30 provides that the Minister must prepare a draft management
plan. The draft plan may apply, with or without modification, the
provisions of another similar or different document. Unless the draft plan
expressly says otherwise, the applied provision is the provision as in force
from time to time. This will facilitate coordinated management and the
implementation of non-statutory plans where such plans assist in the
conservation of the environment or the use and non-use values of a marine
park.
Public notice of draft plan
Clause 31 provides that the Minister must give public notice about the draft
management plan. A copy of the draft plan must be available for inspection
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Marine Parks Bill 2004
during normal business hours at each department office and on the
department's web site.
The notice must also invite written public submissions on the draft plan to
the Minister, within a minimum period of at least 28 days after the public
notice is given.
Clause 31(4) allows discretion not to release a draft of proposed
amendments in situations where consultation has occurred through other
avenues or where the legislation is to be uniform or complementary with
other legislation.
Clause 31(6) allows a fee, if any, to be charged for copies of the draft plan.
Preparation of final plan
Clause 32 provides that the Minister must prepare a final management plan
after considering each submission made under clause 31, and having regard
to the purposes of the Bill.
When management plan has effect
Clause 33 provides that a management plan has effect from the day the
notice approving the plan is published in the gazette or the commencement
day stated in the plan, whichever happens last.
Subdivision 2 Amendment and review
Approval of amendment of management plan
Clause 34 provides that the Governor in Council may approve an
amendment of a management plan by gazette notice but requires any
amendment to be prepared under clauses 35 to 37 of the Bill.
The gazette notice is not subordinate legislation. However, sections 49 to
51 of the Statutory Instruments Act 1992, will apply to it as if it were
subordinate legislation. That is, the notice and management plan must be
tabled in the Legislative Assembly and can potentially be subject to a
disallowance motion.
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Marine Parks Bill 2004
Preparation and notice of draft amendment
Clause 35 requires the Minister to prepare a draft of a proposed
amendment. The draft may incorporate provisions of another similar or
different document. A reference to an incorporated provision will be
regarded as a reference to the provision in force from time to time, unless
the draft amendment expressly provides otherwise.
Public notice of draft amendment
Clause 36 requires the Minister to give public notice about the draft
amendment. The requirements are similar to the requirements under clause
31 in relation to the making of a plan and require notice to be given, the
draft amendments to be available at departmental offices and on the
Internet and allowing 28 days for receipt of public submissions.
Subclause 36(5) allows for discretion not to the release of the draft
amendment plan if the amendment is minor, not a change of substance, or
of a type the management plan says may be made under this provision.
In addition, subclause 36(6) allows discretion not to release a draft of the
proposed amendment in situations where consultation has occurred
through other avenues or where the legislation is to be uniform or
complementary with other legislation.
Preparation of final amendment
Clause 37 provides that the Minister must prepare a final amendment of a
management plan after considering each submission made under clause 36
and having regard to the purposes of the Bill.
When amendment has effect
Clause 38 provides that the amendment takes effect on the later of the
following days:
(a) the day the gazette notice approving the amendment, is published in
the gazette; or
(b) the commencement day stated in the amendment.
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Marine Parks Bill 2004
Review of management plan
Clause 39 provides that the Minister must review each management plan
within 10 years after its commencement, to ensure its continued
effectiveness.
Subdivision 3 Other provisions
Public access to current management plan
Clause 40 requires the Chief Executive to keep a copy of a current
management plan available on the department's website and during
business hours at the department's offices.
On payment of a fee, if any, decided by the Chief Executive, a person may
obtain a copy of the current management plan.
Chief Executive may enter into cooperative arrangement for
management plan
Clause 41 allows the Chief Executive to make an agreement or other
arrangement with a group or person having a special interest in a marine
park, about preparing, amending, reviewing or implementing a
management plan for the park. A "special interest" in the park could, for
example, include native title, or some other special identification with the
park or its natural or cultural resources.
Moratorium on grant of new permissions
Clause 42 allows the Minister to publish a moratorium notice stating that a
management plan likely to affect the entry to or use of a stated marine park
for a stated purpose is being prepared or amended. A moratorium notice
preserves the status quo on specified activities conducted in an area for up
to one year while a management plan is being prepared, or until the plan
takes effect. If a notice is given, an application for a specified authority will
not be granted during the moratorium period, and will apply equally to
applications received before, or after start of the moratorium. The notice
must be published in the gazette, and a newspaper circulating throughout
Queensland.
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Marine Parks Bill 2004
Part 4 Offences
Division 1 Entry to or use of marine park
Entry or use for a prohibited purpose
Clause 43 creates offences for entering or using a marine park for a
prohibited purpose specified in a regulation or zoning plan.
A person, who wilfully enters or uses a marine park for a prohibited
purpose involving the taking of natural or cultural resources, incurs a
maximum penalty of 3000 penalty units. A person wilfully entering or
using a marine park for another prohibited purpose incurs a maximum
penalty of 295 penalty units. Entering or using a marine park for a
prohibited purpose (not being wilful entry or use) incurs a maximum
penalty of 90 penalty units. The specified penalty units provide consistency
with similar offences under the Great Barrier Reef Marine Park Act 1975
and other natural resource management legislation.
This clause does not apply to a person performing a function, or otherwise
authorised under the Bill, to do an act or make an omission.
The performance of functions and the exercise of powers under other Acts
are currently addressed under regulations and zoning plans (eg. compliance
and enforcement operations, the installation of navigation aids and
securing the safety of persons and vessels) and therefore would be exempt
from the offence under clause 43 of the Bill. In some cases, however,
permits or notification to the Chief Executive may be required.
Entry or use without an authority
Clause 44 states that if a person requires an authority under the Bill to enter
or use a marine park for a particular purpose, they must not wilfully enter
or use the park for the purpose without the authority.
A breach that involves the taking of natural or cultural resources attracts a
maximum penalty of 3000 penalty units, and for another purpose, a
maximum penalty of 295 penalty units may be imposed. The specified
penalty units provide consistency with similar offences under the Great
Barrier Reef Marine Park Act 1975 and other natural resource management
legislation.
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Marine Parks Bill 2004
This clause is similar to clause 43 in that it does not apply to someone
performing a function, or otherwise authorised under the Bill, to do an act
or make an omission.
As outlined under clause 43, the performance of functions and the exercise
of powers under other Acts in most cases are exempt under the regulations
and zoning plans from permit requirements and therefore would be exempt
from the operation of clause 44. The model is retained under the Bill.
Entry or use requiring notice
Clause 45 states that if a person requires a notice under the Bill to enter or
use a marine park for a particular purpose, they must not wilfully enter or
use the park for the purpose without the notice. If the Chief Executive
makes the entry or use subject to conditions, they must comply with the
conditions. The specified penalty units provide consistency with similar
offence provisions under the Great Barrier Reef Marine Park Act 1975.
Division 2 Other offence provisions
False or misleading information given by applicant
Clause 46 makes it an offence to make false or misleading statements in an
application for permission and prescribes a maximum penalty of 100
penalty units.
False or misleading documents given by applicant
Clause 47 requires a person who makes an application for a permission, not
to give the Chief Executive a document containing information they know
is false or misleading in a material particular. A breach of this clause
attracts a maximum penalty of 100 penalty units.
This clause does not apply to a person who, when giving the document
informs the Chief Executive, to the best of their ability, how it is false or
misleading and gives the correct information to the Chief Executive if they
have, or can reasonably obtain, that information.
Noncompliance with temporary restricted area declaration
Clause 48 provides that a person who does not comply with a temporary
restricted area declaration, is liable for a maximum penalty of 3000 penalty
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Marine Parks Bill 2004
units or 2 years imprisonment. However, the clause does not apply if an
authorised person performs a function under the Bill or someone else is
authorised to do the act or make the omission.
Noncompliance with conditions of an authority
Clause 49 provides that the holder of an authority issued under the Bill
must comply with the conditions of the authority. Failure to do so attracts a
maximum penalty of 3000 penalty units for a condition about the taking of
natural or cultural resources, or 295 penalty units for another condition.
Unlawful serious environmental harm
Clause 50 makes it an offence for a person to wilfully do an act or make an
omission that directly or indirectly causes or is likely to cause serious
environmental harm to a marine park. A maximum penalty of 3000 penalty
units or 2 years imprisonment may be imposed for breaching this clause in
line with similar offences under other Queensland natural resource
management legislation. The clause does not apply to an authorised person
performing a function under the Bill, or someone authorised under the Bill.
Also the clause does not apply if harm was caused by a lawful activity
conducted outside the marine park or inside the marine park if there is no
zoning plan or park-specific regulations.
"Serious environmental harm" is defined as:
(a) actual or potential harm to the park's environment or use or non-use
values that is irreversible, of a high impact or widespread; or
(b) for a marine park area that is a highly protected area, an area of high
conservation value or special significance--actual or potential harm to
the area's environment or use or non-use values.
Unlawful use of particular words
Clause 51 makes it an offence for a person to use words about an area that
is not a marine park in a way that is likely to cause someone else to
reasonably believe the area is a marine park or part of a marine park with
the intention of gaining a benefit or causing detriment to a person.
It is also an offence for a person to use words about a zone or other area in
a marine park in a way that is likely to cause someone else to reasonably
believe the zone or area is of a classification different to its classification
under the Bill with the intention of gaining a benefit or causing detriment to
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Marine Parks Bill 2004
a person. Contravention of this clause attracts a maximum penalty of 50
penalty units.
Part 5 Monitoring and enforcement
Division 1 Inspectors
Appointment and qualifications
Clause 52 authorises the Chief Executive to appoint a public service
employee, Commonwealth APS employee, local government employee,
police officer; or another individual, who consents to being appointed, as
an inspector, if satisfied that the individual is suitably qualified.
Appointment conditions and limit on powers
Clause 53 allows conditions to be stipulated in connection with the
appointment of an inspector. These can be conveyed through an instrument
of appointment, a notice signed by the Chief Executive or a regulation.
Issue of identity card
Clause 54 requires the Chief Executive to issue an identity card to each
inspector containing a recent photo of the inspector, and a copy of the
inspector's signature. The card must also identify the individual as an
inspector under this Bill, and the date the card expires. Subclause 54(3)
allows scope for combined identity cards to be issued under more than one
piece of legislation, for example, where an EPA officer is both a marine
parks inspector and a conservation officer under the Nature Conservation
Act 1992.
Production or display of identity card
Clause 55 provides that before exercising a power under this Bill, an
inspector (other than a police officer in uniform), must show their identity
card; or have the identity card clearly displayed to the person. However,
where this is not practicable, the identity card must be produced at the first
reasonable opportunity.
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Marine Parks Bill 2004
When inspector ceases to hold office
Clause 56 provides that an inspector ceases to hold office if:
· the term of office in a condition of office ends;
· the inspector ceases to hold office under another condition of office; or
· the inspector's resignation under clause 57 takes effect.
However, these ways of cessation do not limit the ways an inspector may
cease holding office.
Resignation
Clause 57 provides that an inspector may resign by giving a signed notice
to the Chief Executive.
Return of identity card
Clause 58 provides that if a person ceases to be an inspector, they must
return their identity card to the Chief Executive within 21 days, unless they
have a reasonable excuse.
Division 2 Powers of inspectors
Subdivision 1 Entry to Places
Power to enter places
Clause 59 provides for the conditions of entry to a place by an inspector.
The provisions of clause 59 generally allow entry only with an owner's
consent or with a warrant, or to public places or places which are open for
business. However, subclause 58(1) makes it clear that the clause does not
limit the power to board and search vessels conveyed under clause 72(2).
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Subdivision 2 Procedure for entry
Entry with consent
Clause 60 outlines the procedures an inspector must follow where the
occupier consents to entry under clause 59(1)(a). Prior to asking for
consent, the inspector must tell the occupier the purpose of the entry. The
occupier is not required to consent, and must be so informed by the
inspector. However, if consent is given, the occupier may be asked to sign
an acknowledgment of the consent.
Where an issue arises in a proceeding about whether the occupier
consented to the entry and an acknowledgment for the entry is not
produced in evidence, the onus of proof is on the person relying on the
lawfulness of the entry to prove the occupier consented.
Application for warrant
Clause 61 describes the process by which an inspector may apply to a
Magistrate for a warrant to enter a place. The inspector must swear a
written application stating the grounds on which a warrant is sought, and
may also be required to provide further information the Magistrate requires
by statutory declaration.
Issue of warrant
Clause 62 provides for the circumstances in which the Magistrate may
issue a warrant, and the contents of a warrant. The warrant may be issued if
the Magistrate is satisfied that there are reasonable grounds to suspect a
particular thing or activity at a place may provide evidence of an offence
against the Bill. The warrant must also state the date it ends, and cannot be
valid for more than 14 days.
Application by electronic communication and duplicate warrant
Clause 63 allows an inspector to apply for a warrant by phone, fax, radio,
videoconferencing or another form of electronic communication, if the
inspector considers it is necessary because of urgent circumstances or other
special circumstances, including the inspector's remote location. The
clause spells out procedural details of how the warrant may be issued,
documentation and similar matters.
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Marine Parks Bill 2004
Where an issue arises in proceedings about whether the exercise of a power
was authorised by a warrant issued under this clause; (and the original
warrant is not produced in evidence) the onus is on the person relying on
the exercise of the power, to prove that the power was exercised under the
warrant.
Defect in relation to a warrant
Clause 64 provides that a warrant is not invalidated by a defect in the
warrant, or a defect in compliance with the procedures for obtaining a
warrant set out in clauses 61, 62, or 63, unless the defect affects the
substance of the warrant in a material particular.
Warrants--procedure before entry
Clause 65 outlines the procedures that an inspector must follow or attempt
to follow, before entering a place under a warrant. An inspector must
identify himself or herself to the occupier and provide a copy of the
warrant. However, the procedures need not be complied with in
circumstances where immediate entry is required to ensure that effective
execution of the warrant is not frustrated.
Subdivision 3 Powers after entry
General powers after entering places
Clause 66 authorises an inspector to search, inspect, measure, test,
photograph or film any part of a place or anything at the place, take
samples, take or copy documents, and take into the place any person,
equipment and materials the inspector reasonably requires for exercising a
power.
Power to require reasonable help or information
Clause 67 allows an inspector to require the occupier of a place, or a person
at the place, to provide the inspector with reasonable help to exercise a
power of search under clause 66(3), or to provide information to help the
inspector assess whether the Bill is being complied with.
It is an offence not to comply with the inspector's requirements, unless the
person has a reasonable excuse. A reasonable excuse for individual non-
compliance would be self-incrimination.
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Subdivision 4 Other powers
Power to require name and address
Clause 68 provides that an inspector may require a person to give their
name and residential or business address if the inspector finds the person
committing an offence, or the inspector reasonably suspects an offence has
been committed against this Bill. A person must supply the information,
unless they have a reasonable excuse. A maximum penalty of 15 penalty
units applies for non-compliance. However, a person does not commit an
offence if the requirement was given because the inspector suspected the
person had committed an offence against the Bill and the person is not
proved to have committed the offence.
Power to require information about contravention
Clause 69 allows an inspector to require a person who is believed to be able
to give information about a contravention against the Bill to provide such
information. The inspector may specify that the information is to be
provided in a reasonable time and a certain way. The inspector must warn
the person that failure to comply without a reasonable excuse is an offence.
A maximum penalty of 15 penalty units may be imposed.
Power to stop persons
Clause 70 allows an inspector to require a person to stop and not move on if
the person is found committing an offence, or an inspector suspects that the
person has just committed an offence. The inspector may detain the person
only as long as is reasonably necessary. It is an offence not to comply with
such a direction unless the person has a reasonable excuse. A maximum
penalty of 100 penalty units may be imposed.
Power to give direction to leave area
Clause 71 authorises an inspector to direct a person to leave a marine park
or part of it immediately if the inspector finds the person committing, or
attempting to commit, an offence against the Bill or suspects the person has
committed or attempted to commit an offence against this Bill. An
inspector may also require the person to remove the person's property from
the park or part of the park. A maximum penalty of 15 penalty units applies
in these circumstances, unless the person has a reasonable excuse.
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When giving the direction, an inspector is required to tell the person the
reason for giving it and if it is reasonably practicable, the direction must be
given in writing.
If the person, without reasonable excuse, fails to comply with the direction,
an inspector may take the steps that appear to the inspector to be reasonable
and necessary to secure compliance with the direction, including, for
example:
(a) using reasonable force; and
(b removing the person's property to a place inside or outside the park.
Power to stop and search vessels, vehicles and aircraft
Clause 72 outlines the general powers of an inspector for stopping and
searching vessels, vehicles and aircraft. An offence is created where a
person fails to comply with a direction to stop and not move unless the
person has a reasonable excuse, and a maximum penalty of 100 penalty
units applies. It is a reasonable excuse for the person to fail to stop or to
move the vessel, vehicle or aircraft if to immediately obey the signal would
have endangered the person or someone else, provided that the person
obeys the signal as soon as it is practicable to do so. The inspector may
detain the person only for as long as is reasonably necessary for the
inspector to exercise powers under this Bill in relation to the vessel, vehicle
or aircraft.
Consistent with most other marine legislation, an inspector may board and
search a vessel, vehicle or aircraft with necessary and reasonable help and
force and without a warrant or the consent of the owner or person in
control. However, before boarding or entering an unattended vessel,
vehicle or aircraft, the inspector must take reasonable steps to advise its
owner, or the person in control, of the intention to board or enter. After
boarding or entering an unattended vessel, vehicle or aircraft, the inspector
must attach or leave, in a conspicuous place in the vessel, vehicle or aircraft
a notice stating:
· when the vessel, vehicle or aircraft was boarded or entered; and
· why it was boarded or entered; and
· what powers mentioned in section 66(3) were exercised; and
· what the exercise of the powers involved.
In addition, an inspector must not enter and search a part of a vessel,
vehicle or aircraft used only as a living area, unless the person in control of
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Marine Parks Bill 2004
the vessel, vehicle or aircraft accompanies the inspector. However, this
does not apply if the person is unavailable or unwilling to accompany the
inspector or if the clause is unable to be complied with for another reason.
Power to require driver or person in control to give reasonable
help etc.
Clause 73 provides that an inspector may require the driver of a vessel,
vehicle or aircraft to give reasonable help to enable a vessel, vehicle or
aircraft to be boarded or entered under clause 72(2), for inspection. Unless
the person has a reasonable excuse, a contravention a requirement under
subclause (1), attracts a maximum penalty of 100 penalty units.
Subdivision 5 Power to seize evidence
Seizing evidence at place entered under s59
Clause 74 outlines the type of evidence that may be seized in particular
circumstances.
Seizing evidence on or in vessel, vehicle or aircraft entered or
boarded under s72
Clause 75 gives an inspector the power to seize evidence on or in a vessel,
vehicle, aircraft boarded under clause 72(2).
Powers in support of seizure
Clause 76 allows an inspector to require a person in control of a thing to
take it to a specified reasonable place by a reasonable time and if necessary,
to remain in control of it at the place for a reasonable time. If, for any
reason, it is not practicable to make the requirement by a written notice, the
requirement may be made orally and confirmed by written notice as soon
as practicable. An offence is created for failing to comply with the
requirement unless the person has a reasonable excuse. A maximum
penalty of 50 penalty units applies.
Securing seized things
Clause 77 prescribes what an inspector may do with a seized thing. The
inspector may move or leave the seized thing, and:
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Marine Parks Bill 2004
· take reasonable action to restrict access, or prevent or mitigate
damage, to it; or
· direct the person the inspector believes is in control of the thing, to
take action to restrict access, or prevent or mitigate damage to it; or
· make equipment inoperable or direct a person in control to take action
to make it inoperable.
However, if the thing is on a vessel and is necessary for the vessel's safe
operation, the inspector may move or restrict access to the thing under
subclause (1) for no longer than is reasonably necessary for obtaining
evidence of the offence for which the thing was seized.
A person to whom a direction is given must comply with the direction, or a
maximum penalty of 50 penalty units may apply.
Tampering with seized things
Clause 78 provides that if an inspector restricts access to a seized thing, a
person must not tamper with it, without an inspector's approval. A
maximum penalty of 100 penalty units applies for contravention of this
subclause. The same penalty applies if a person tampers with equipment an
inspector makes inoperable, without an inspector's approval.
Receipt for seized things
Clause 79 requires an inspector to give a person a receipt for a seized thing,
unless it is impracticable or unreasonable to do so, given the thing's nature,
condition and value or when the person from whom it was seized cannot be
located. If it is impractical to give the person from whom it was seized a
notice, the inspector must leave the receipt at the place of seizure in a
conspicuous position and in a reasonably secure way.
Inspector may dispose of natural resources taken unlawfully
Clause 80 applies if a natural resource is seized under the Bill and an
inspector reasonably believes the resource has been taken unlawfully.
Despite any other provision of the Bill, the inspector may deal with or
dispose of the resource in the way the inspector considers appropriate, if
satisfied that it is necessary to do so in the interests of the welfare of the
resource or to conserve the resource or environment.
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Marine Parks Bill 2004
Forfeiture of seized things
Clause 81 provides that a thing seized under this subdivision and not
disposed of under clause 80, is forfeited to the State if the inspector who
seized the thing cannot find its owner after making reasonable inquiries, or
return it to its owner after making reasonable efforts. For example, the
owner might have migrated to another country.
Dealing with forfeited things
Clause 82 provides that a thing forfeited by the State, becomes the property
of the State, and dealt with as the Chief Executive considers appropriate,
including the thing's destruction or disposal.
Return of seized things
Clause 83 provides that if a seized thing is not disposed of under clause 80
or forfeited under clause 81, the inspector must return it to the person from
whom it was seized 6 months after its seizure. Alternatively, if proceedings
involving the thing are started within the 6 months, the seized thing must be
returned at the end of the proceedings and any appeal from the
proceedings. Unless a thing seized as evidence is disposed of, or forfeited,
the inspector must immediately return it to the person if satisfied that its
continued retention as evidence, is unnecessary.
Access to seized things
Clause 84 provides that until a seized thing is disposed of, forfeited or
returned, an inspector must allow the person from whom it was seized to
inspect it and, if it is a document, to copy it, unless the inspection or
copying is impractical or unreasonable.
Division 3 General enforcement matters
Definition for div 3
Clause 85 provides that in division 3, "inspector", for a power exercised
under clause 100, 102, 103, or 109 includes the Chief Executive.
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Marine Parks Bill 2004
Inspector's obligation not to cause unnecessary damage
Clause 86 requires an inspector exercising a power under division 2 or
clause 100, 102, 103 or 109 of the Bill, to take all reasonable steps to
ensure no unnecessary damage to property is caused and as little
inconvenience as practicable.
Notice of damage
Clause 87 applies if an inspector, or person directed by an inspector,
damages property when exercising a power under the Bill. In these
circumstances, the inspector must immediately give notice of the damage
to the owner of the property (including a person in possession or control).
If the inspector believes damage was caused by a latent defect in the
property or circumstances beyond the inspector's control, the inspector
may state this in the notice. If, for any reason, it is impracticable to notify
the owner of the damage, the inspector must leave the notice in a
conspicuous position, and a reasonably secure way where the damage
happened. Clause 87 does not apply to damage the inspector reasonably
believes is trivial.
Compensation
Clause 88 allows a person to claim compensation from the State for
incurring loss or expense because of the exercise or purported exercise of a
power under division 2 (Powers of inspectors), subdivision 1, 3 or 4 or
clause 100, 102, 103, or 109. Compensation may be claimed, and recovered
in a court of competent jurisdiction, for loss or expense incurred in
complying with the Bill. However, a court may order the payment of
compensation, only if satisfied that it is fair to do so.
False or misleading information given to inspector
Clause 89 imposes a maximum penalty of 100 penalty units if a person
states anything to an inspector which the person knows is false or
misleading in a material particular.
False or misleading documents given to inspector
Clause 90 imposes a maximum penalty of 100 penalty units if a person
gives an inspector a document containing information that the person
knows is false or misleading in a material particular, unless the person tells
the inspector how the document is false or misleading, or provides the
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Marine Parks Bill 2004
inspector with additional information to correct the false or misleading
information.
Obstructing an inspector
Clause 91 imposes a maximum penalty of 100 penalty units if a person
obstructs an inspector in the exercise of a power, unless the person has a
reasonable excuse. An inspector who has been obstructed, but nevertheless
decides to exercise the power, must warn the person that it is an offence to
obstruct an inspector, and that the inspector considers the person's conduct
is an obstruction.
Impersonating an inspector
Clause 92 imposes a maximum penalty of 100 penalty units if a person
pretends to be an inspector.
Division 4 Compliance notices
Compliance notice
Clause 93 applies if the Chief Executive or an inspector (each the
"notifier") reasonably believes a person is contravening a provision of the
Bill, or has contravened the Bill and is likely to continue or repeat the
contravention. Where the matter is capable of being rectified and it is
considered appropriate to give the person and opportunity to rectify the
matter, the notifier may give the person a compliance notice to remedy the
contravention. The notice must state that the person may appeal against the
decision to give the notice.
The clause also describes the contents of a compliance notice, and allows a
notifier to state the steps believed to be necessary to remedy the
contravention.
Where the Bill provides a penalty for contravening a provision, the
maximum penalty for failing to comply with a compliance notice without a
reasonable excuse is the same amount. In other situations a penalty of 5
penalty units may be imposed if the person does not comply with the
notice.
Subclauses (4) and (5) take account of a situation where a person in
contravention of the Bill may also be in breach of a permit or similar
authority, and may have been served with a show cause notice as to why the
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Marine Parks Bill 2004
permit should not be revoked. In these circumstances, the officer is required
to consider any reasons provided in response to the show cause notice
before deciding whether to issue a compliance notice.
Subclause (9) makes it clear that once a compliance notice has been issued,
a person cannot be prosecuted for contravening a provision of the Bill
unless the person fails, without reasonable excuse, to comply with the
compliance notice.
A person may appeal the decision to give the notice under Part 8 of the Bill.
Part 6 Other provisions for protecting the
environment and users of marine parks
Division 1 Preliminary
Definitions for pt 6
Clause 94 defines 3 terms used in this part. "Inspector" includes the Chief
Executive. "Person responsible" for abandoned, stranded, sunk or wrecked
property includes the person in control of the property immediately before
it was abandoned, stranded, sunk or wrecked. "Property" does not include
land.
Division 2 Temporary restricted area declaration
Temporary restricted area declaration
Clause 95 provides that the Chief Executive may declare an area within a
marine park to be a temporary restricted area if the Chief Executive
considers urgent action is needed to meet a risk of injury or illness to
persons or damage to property or a serious threat to the park's environment
or use or non-use values. The clause prescribes the information the
declaration must contain, including the nature of the emergency, the
boundaries of the temporary restricted area by a map or appropriate
description and the regulation of things the Chief Executive reasonably
considers are necessary to meet the risk or threat. The Chief Executive
must publish the declaration in the gazette, and other ways the Chief
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Marine Parks Bill 2004
Executive considers appropriate including signs and radio announcements.
In addition under clause 95, the Chief Executive is required to repeal the
declaration as soon as possible after the Chief Executive considers the
emergency no longer exists.
Expiry of declaration
Clause 96 provides that unless earlier repealed, a temporary restricted area
declaration expires on the expiry day stated in the declaration or at the end
of 6 months, whichever is earlier. In addition under clause 95, the Chief
Executive is required to repeal the declaration as soon as possible after the
Chief Executive considers the emergency no longer exists.
Declaration is not subordinate legislation
Clause 97 provides that although a temporary restricted area declaration is
not subordinate legislation, the Statutory Instruments Act 1992, sections 49
to 51 apply to it as if it were subordinate legislation. That is, the notice must
be tabled in the Legislative Assembly and might potentially be subject to a
disallowance motion.
Temporary restricted area declaration prevails over regulation,
zoning plan or authority
Clause 98 provides that if there is an inconsistency between the temporary
restricted area declaration and a regulation or zoning plan or an authority
issued under the Bill or another Act, the declaration prevails to the extent of
the inconsistency.
Division 3 Directions for protecting environment and
users
Inspector's power to give directions
Clause 99 applies if an inspector reasonably believes action is needed to
deal with an emergency involving a marine park and a serious risk to the
marine park's environment or use and non-use values or safety of a person
or a person's property. The inspector may give a person an oral or written
direction regulating or prohibiting the person's entry or use of the park. The
inspector may also give the person in control of a vessel, vehicle or aircraft
in the park a direction regulating the use of these forms of transport.
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Marine Parks Bill 2004
Directions may also be given in relation to abandoned, stranded sunk or
wrecked property. A maximum penalty of 200 penalty units applies if the
person does not. comply with a direction without reasonable excuse.
Division 4 Removing abandoned, stranded, sunk or
wrecked property
Subdivision 1 Removal of property other than in
urgent circumstances
Inspector's power to remove property
Clause 100 applies if an inspector reasonably believes that property in a
marine park is abandoned, stranded, sunk or wrecked and needs to be
removed, but not urgently, to prevent or remedy harm, secure the safety of a
person or property or minimise disturbance to persons in the park.
The inspector may seize and remove the property to a place decided by the
inspector whether or not the seizure and removal is inconsistent with an
authority held by a person.
When exercising a power under this clause, clause 86 of the Bill provides
that an inspector and the Chief Executive must take all reasonable steps to
cause as little inconvenience as practicable and not cause any unnecessary
damage to property. If damage to property occurs, notice must be given to
the person who appears to be the owner of the property under clause 87. In
addition, persons may seek compensation for loss or damage caused
through the exercise of this power under clause 88 of the Bill.
If a person has been given compliance notice, a notice under clause 99(4)
in relation to the property (eg. to remove, secure or salvage) or an
enforcement order, then an officer may seize and remove property only if
the person has failed, without reasonable excuse, to comply with the
compliance notice, directions or enforcement order.
Removal notice
Clause 101 requires that before seizing and removing the property, and
subject to clause 102, the inspector must give a notice in the approved form
("a removal notice'') to the person responsible for the property.
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Marine Parks Bill 2004
If the person is not known or can not be located, the notice must be given
by attaching the notice to the property intended to be seized and publishing
the notice set out in clause 101(3) in a newspaper circulating generally in
the locality where the property is.
Seizure, removal and disposal without giving removal notice
Clause 102 provides that if it is impracticable or would be unreasonable to
give a removal notice given the property's nature, condition and value, the
inspector may without giving notice, seize and remove the property and
having regard to the condition and value of the property, sell or dispose the
property. Compensation is not payable for a sale or disposal under this
clause.
Subdivision 2 Removal of property in urgent
circumstances
Inspector's power to remove property
Clause 103 applies if an inspector reasonably believes property in a marine
park is abandoned, stranded, sunk or wrecked and needs to be removed
urgently in order to prevent or remedy harm, secure the safety of persons or
their property or minimise disturbance to persons in the park.
The inspector may seize and remove the property to a place decided by the
inspector whether or not the seizure and removal is inconsistent with an
authority held by a person.
If, where the person responsible for the property has been given direction
under clause 99, a compliance notice or an enforcement order to remove
the property, then an inspector may seize and remove property only if the
person has failed, without reasonable excuse, to comply with the notice,
direction or order, or the inspector reasonably believes:
· the property needs to be removed immediately or sooner than as
required; and
· the person responsible for the property is unwilling or unable to
remove the property sooner than as required.
When exercising a power under this clause, clause 86 of the Bill provides
that an inspector and the Chief Executive must take all reasonable steps to
cause as little inconvenience as practicable and not cause any unnecessary
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Marine Parks Bill 2004
damage to property. If damage to property occurs, notice must be given to
the person who appears to be the owner of the property under clause 87. In
addition, persons may seek compensation for loss or damage caused
through the exercise of this power under clause 88 of the Bill.
If the inspector seizes and removes the property under subsection
103(5)(b), the person responsible for the property cannot be prosecuted for
failing to comply with the direction.
Removal notice
Clause 104 provides that as soon as practicable after seizing and removing
the property, the inspector must give a "removal notice" in the approved
form to the person responsible for the property, if known, or must give 28
days notice as set out in clause 104(3) though newspaper advertisements.
Subdivision 3 Dealing with property after removal
Action inspector may take if property not claimed
Clause 105 provides that if no one claims property which is subject of a
removal notice by the day stated in the notice, the inspector who gave the
notice may sell it by public auction; destroy or otherwise dispose of it; and
take any action reasonably necessary to restore the environment from
which it was removed. No compensation is payable for a sale or disposal
under this clause.
Dealing with proceeds of sale
Clause 106 provides that the proceeds from a sale of property under clause
102(1)(b) or 105(1)(a)(i) must be applied first, to pay the expenses of the
sale, secondly, to pay the costs of seizing, removing and storing the
property and the seizure notice, thirdly to pay any costs of the State in
taking action under clause 105(1)(b), and fourthly, to pay the balance to the
owner of the property.
Release of property
Clause 107 provides that if a person claims property that is subject to a
removal notice, the inspector may release it only if the person satisfies the
inspector they have a right to the property. The person must also pay the
inspector's reasonable costs of seizing, removing and holding the property,
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Marine Parks Bill 2004
giving notice of the seizure; and any notice given of its sale. The person
must also pay any costs associated with preventing or minimising impacts
arising, from the abandonment, stranding, sinking or wrecking of the
property.
Recovery of costs of removal etc.
Clause 108 provides that the costs reasonably incurred by an inspector in
taking all or any of the following action under this division because of a
person's contravention of a provision of this Bill is a debt payable by the
person to the State:
(a) seizing, removing and storing the person's property;
(b) preparing and giving a removal notice concerning the property;
(c) action reasonably necessary--
(i) to restore the environment from which the person's property was
removed; or
(ii) to prevent or minimise impacts arising, directly or indirectly,
from the abandonment, stranding, sinking or wrecking of the
person's property.
Division 5 Restoration of environment etc.
Restoration of environment etc.
Clause 109 applies if an inspector reasonably believes that a person has
failed to comply with a compliance notice, direction given under section 99
or enforcement order; or that urgent action is needed to deal with an
emergency involving a marine park and a serious risk to the environment,
human life or property. The inspector may take appropriate action (other
than seizing and removing abandoned, stranded, sunk or wrecked property)
to:
· Repair or remedy any condition caused by the contravention or
emergency;
· Mitigate any damage caused by the contravention or emergency;
· Prevent any damage the inspector reasonably considers is likely to
arise from the contravention or emergency.
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Marine Parks Bill 2004
Examples are given of action the inspector may take under this clause.
Also, the costs reasonably incurred in taking action because of a person's
contravention of a provision of the Bill, are a debt payable by the person to
the State.
When exercising a power under this clause, clause 86 of the Bill provides
that an inspector must take all reasonable steps to cause as little
inconvenience as practicable and not cause any unnecessary damage to
property. If damage to property occurs, notice must be given to the person
who appears to be the owner of the property under clause 87. In addition,
persons may seek compensation for loss or damage caused through the
exercise of this power under clause 88 of the Bill.
Part 7 Proceedings for enforcement orders
Division 1 Preliminary
Definitions for pt 7
Clause 110 provides that in part 7 of the Bill:
· "court" means the Planning and Environment Court.
· "person" includes a body of persons, whether incorporated or
unincorporated.
Division 2 Enforcement orders
Proceeding for enforcement orders
Clause 111 provides for when and how, the Chief Executive, inspector or a
person may bring a proceeding in the Planning and Environment Court for
an "enforcement order" or an "interim enforcement order" to remedy or
restrain the commission of an offence against the Bill.
The Chief Executive or an inspector may bring a proceeding in the court
for an order to remedy or restrain the commission of an offence against the
Bill (an "enforcement order"), an interim enforcement order under clause
112 or for an order to cancel or change an enforcement order or interim
enforcement order.
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Marine Parks Bill 2004
Clause 111(2) provides that any other person may bring a proceeding in the
court for an order to remedy or restrain the commission of an offence
against clause 43 (Entry or use for a prohibited purpose) or 50 (Unlawful
serious environmental harm) (an "enforcement order"), an interim
enforcement order under clause 112 or for an order to cancel or change an
enforcement order or interim enforcement order.
A person may commence enforcement proceedings whether or not any
right of the person has been infringed by the offence.
If the Chief Executive is not a party to a proceeding for an order mentioned
in 111(2), the person must, within 7 days after starting the proceeding, give
the Chief Executive written notice of it. A maximum penalty of 15 penalty
units applies for not doing so.
The Minister or the Chief Executive may choose to be a party to the
proceeding by filing a notice of election in the court.
Making interim enforcement order
Clause 112 provides that the Planning and Environment Court may make
an order before a decision of a proceeding for an enforcement order is
made, if the court is satisfied it would be appropriate to do so. The order
may also be made subject to conditions. However, the court may not
impose a condition requiring the applicant to give an undertaking about
damages.
Making enforcement order
Clause 113 provides that the Planning and Environment Court may make
an enforcement order if satisfied the offence is being, or has been
committed or will be committed unless the order is made. The court may
make an enforcement order whether or not there has been a prosecution for
the offence under the Bill.
Effect of orders
Clause 114 provides that an enforcement order, or an interim enforcement
order may direct a party to the proceedings to stop an activity that will
constitute an offence, or not to commence any such activity, or to do
anything to stop committing an offence or to do anything to prevent or
minimise impacts arising from an offence, or to do anything to comply
with the Bill.
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Marine Parks Bill 2004
Without limiting the court's powers, an order may require the repair,
demolition or removal of a building and the restoration of an affected area.
An order must state the time by which the order is to be complied with.
A maximum penalty of 3000 penalty units or 2 years imprisonment may be
imposed for contravening an enforcement order or an interim enforcement
order.
Court's powers about orders
Clause 115 provides that the Planning and Environment Court's power to
make an enforcement order or interim enforcement order to stop an
activity, may be exercised whether or not it appears that the person against
whom the order is made intends to engage, continue to engage, or has
previously engaged in the activity, and whether or not there is a serious
threat to the environment or to other persons.
Orders to do anything may similarly be made whether or not it appears that
the person against whom the order is made intends to engage, continue to
engage, or has previously engaged in the activity, and whether or not there
is a serious threat to the environment or to other persons. The court may
also make an order to cancel or change an enforcement order or interim
enforcement order.
Subclause 115(4) provides that the powers under this clause are in addition
to any other powers of the Planning and Environment Court.
Division 3 General procedural provision
Proceeding brought in representative capacity
Clause116 provides that a proceeding under part 7 may be brought by a
person on behalf of an entity with the entity's consent. If the entity on
whose behalf the proceeding is brought is an unincorporated body, the
body's committee or other controlling or governing entity must give the
consent. The entity on whose behalf the proceeding is brought may
contribute to, or pay, the legal costs incurred by the person bringing the
proceeding.
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Part 8 Appeals and review
Division 1 Preliminary
Appeal against particular decisions must be by way of internal
review or ADR process
Clause 117 provides that a person who is given a compliance notice or
removal notice may appeal by making an application for internal review
under division 2 (Internal review) or an alternative dispute resolution
process provided for under a regulation. Without limiting subclause (1)(b),
a regulation may provide for the use of mediators and case appraisers
approved under the District Court of Queensland Act 1967, part 7 or the
Uniform Civil Procedure Rules 1999, chapter 9, part 4.
Division 2 Internal review
Applying for an internal review
Clause 118 provides that an application for internal review must be made in
the approved form within 28 days and supported by enough information to
enable the Chief Executive to decide the application. The Chief Executive
may extend the time for applying for internal review.
The application does not stay the original decision.
The application for internal review cannot be dealt with by the person who
made the original decision or a person in a less senior office than the person
who made the original decision, unless the original decision was made by
the Chief Executive.
Review decision
Clause 119 provides that if the Chief Executive is satisfied the applicant
has complied with the requirements of clause 118, the Chief Executive
must review the original decision within 28 days after receiving the
application. The Chief Executive must make the "review decision" to
confirm, or amend the original decision, or substitute another decision for
the original decision.
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Within 14 days after making the review decision, the Chief Executive must
give the applicant a "review notice" of the review decision, stating the
reasons for the review decision; and that the applicant may, within 28 days
after the day the applicant is given the notice, appeal against the review
decision to the Magistrates Court.
Stay of operation of original decision
Clause 120 provides that if an application is made for internal review of an
original decision, the applicant may immediately apply for a stay of the
original decision to the Magistrates Court. The court may stay the original
decision to secure the effectiveness of the review and any later appeal to the
court. A conditional stay may also operate for a period fixed by the court.
Division 3 Appeals to Magistrates Court
How to start appeal
Clause 121 provides that an appeal is started by filing written notice of the
appeal with the registrar of the Magistrates Court, and must comply with
the rules of court applicable to it. The notice of appeal must be filed within
30 days after the appellant receives notice of the review decision and fully
state the grounds of the appeal and the facts relied on.
Appellant to give notice of appeal
Clause 122 provides that within 7 days after filing a notice of appeal, the
appellant must serve notice of the appeal on the Chief Executive.
Stay of operation of decision
Clause 123 provides that the court may grant a stay of the operation of the
decision to secure the effectiveness of the appeal. The stay may be given on
conditions the court considers appropriate and operates for the period fixed
by the court. The stay may also be revoked or amended by the court.
Powers of court on appeal
Clause 124 provides that in deciding the appeal, the court may confirm or
set aside the review decision; change it with a decision the court considers
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Marine Parks Bill 2004
appropriate, or send the matter back to the Chief Executive with directions
the court considers appropriate.
Part 9 Legal proceedings
Division 1 Evidence
Application of div 1
Clause 125 provides that division 1 applies to a proceeding under the Bill.
Appointments and authority
Clause 126 provides that it is not necessary to prove the appointment of the
Minister, Chief Executive, or an inspector, or their authority to do anything
under the Bill.
Signatures
Clause 127 provides that a signature purporting to be the signature of the
Minister, the Chief Executive or an inspector, is evidence of the signature it
purports to be.
Certificate about evidence of location of aircraft or vessel
Clause 128 provides that a certificate signed by the Chief Executive or an
inspector stating that:
· A person used equipment under a regulation to retrieve data, sent from
the monitoring system equipment for a stated aircraft or vessel; and
· The equipment recorded the monitoring system equipment's position
to be at a stated place, time and day;
is evidence that the aircraft or vessel was at the place at the time on the day.
A single certificate may be issued for data sent at more than one time on a
day or on more than one day.
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Marine Parks Bill 2004
Evidentiary matters
Clause 129 provides guidance on evidentiary matters.
Division 2 Matters about offence proceedings and
indictable and summary offences
Types of offences
Clause 130 provides that, an offence against the Bill is a summary offence
and an offence against the Bill for which the maximum penalty of
imprisonment is 2 years, is an indictable offence that is a misdemeanour.
Proceedings for indictable offence
Clause 131 provides that a proceeding for an indictable offence against the
Bill may be taken at the election of the prosecution by way of a summary
proceeding under the Justices Act 1886 or on indictment. A magistrate must
not hear an indictable offence summarily if the defendant asks that the
charge be prosecuted on indictment or the magistrate believes the charge
should be prosecuted on indictment. The maximum penalty that may be
summarily imposed for an indictable offence is 165 penalty units or 1
year's imprisonment.
Limitation on who may summarily hear indictable offence
Clause 132 provides that a proceeding for the summary conviction of a
person on a charge for an indictable offence; or an examination of
witnesses for a charge for an indictable offence must be before a
magistrate. However, if the proceeding is brought before a justice who is
not a magistrate, jurisdiction is limited to taking or making a procedural
action or order within the meaning of the Justices of the Peace and
Commissioners for Declarations Act 1991.
Limitation on time for starting summary proceeding
Clause 133 provides that a proceeding for a summary offence against the
Bill under the Justices Act 1886 must start within 1 year after the
commission of the offence; or within 1 year after the offence comes to the
complainant's knowledge, but within 2 years after the commission of the
offence. If a Magistrates Court considers it just and equitable in the
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Marine Parks Bill 2004
circumstances, the court may extend the time. In deciding what is just and
equitable, the court may have regard to the:
· Availability of evidence of the offence;
· Conduct of the defendant since the alleged offence;
· Prejudice the proposed extension of time is likely to cause the
defendant;
· Adverse impact on a marine park's environment and use and non-use
values the alleged offence has caused, or is likely to cause, on the
marine environment.
Allegations of false or misleading information or documents
Clause 134 provides that it is enough for a complaint for an offence against
the Bill involving false or misleading information, or a false or misleading
document, to say that the statement, or document given, was "false or
misleading" to the person's knowledge, without specifying which.
Responsibility for acts or omissions of representatives
Clause 135 applies in a proceeding for an offence against the Bill. In order
to prove a person's state of mind about a particular act or omission, it is
enough to show that the act was done or not done by a representative of the
person within the scope of the representative's actual or apparent authority
and the representative had the state of mind.
The term "representative" for a corporation means an executive officer,
employee or agent of the corporation and for an individual, an employee or
agent of the individual. The term "state of mind" includes the person's
knowledge, intention, opinion, belief or purpose; and the person's reasons
for the intention, opinion, belief or purpose.
Executive officers responsible for ensuring corporation
complies with Bill
Clause 136 provides that the executive officers of a corporation must
ensure the corporation complies with the Bill. If a corporation commits an
offence against a provision of the Bill, each executive officer of the
corporation also commits the offence of failing to ensure the corporation
complies with the provision. Also, evidence that the corporation has been
convicted of an offence against the Bill, is evidence that each executive
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Marine Parks Bill 2004
officer committed the offence of failing to ensure the corporation complies
with the Bill.
However, it is a defence for an executive officer to prove they exercised
reasonable diligence to ensure the corporation complied with the provision
or the officer was not in a position to influence the conduct of the
corporation.
Holder of authority responsible for ensuring Bill complied with
Clause 137 provides that the holder of an authority must ensure that
everyone acting under the authority complies with the Bill. If another
person acting under the authority commits, or is convicted of an offence
under the Bill, the holder of the authority commits the offence of failing to
ensure that person complied with the provision. Evidence that another
person has been convicted of an offence against the provision under the
authority, is also evidence that the authority holder committed the offence.
However, it is a defence for the holder of the authority to prove:
· the offence was committed without the holder's knowledge; and
· the holder exercised reasonable diligence to ensure the other person
complied with the provision.
Responsibility for offences committed with use of vessel,
vehicle or aircraft
Clause 138 provides that each person responsible for a vehicle, vessel or
aircraft (eg. the owner, person in control or operator) must ensure that it is
not used to commit an offence against the Bill. If another person uses a
vehicle, vessel or aircraft in committing an offence against a provision of
the Bill, each person responsible for the vehicle, vessel or aircraft also
commits an offence of failing to ensure that the other person complies with
the provision. Also, evidence that the other person has been convicted of an
offence against the Bill, is evidence that each responsible person
committed the offence of failing to ensure that the other person complies
with the provision.
However, it is a defence for a person responsible for a vehicle, vessel or
aircraft to prove they exercised reasonable diligence to ensure the other
person complied with the provision, or the officer was not in a position to
influence the conduct of the other person.
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Marine Parks Bill 2004
Court's powers on conviction for an offence
Clause 139 provides that, in addition to any penalty imposed for a
particular offence against the Bill, the court may also order an offender to:
· Take action to prevent or minimise harm to the marine environment or
a marine park's use and non-use values, rehabilitate an area, restore or
replace damaged property, or remove property used to commit the
offence from a marine park;
· Pay the State's reasonable costs for taking action under clause 108 or
109;
· Pay the State's reasonable cost for taking future action to prevent
harm to the marine environment or its use and non-use values;
· Compensate the State for any harm, loss or destruction of the marine
park's environment or use and non-use values;
· Compensate an affected person for injury, loss or damage suffered, or
costs or expenses incurred, by the person as a result of the offence;
· Pay the department's reasonable costs of investigating the offence.
Division 3 Judicial review of administrative decisions
Extended standing for judicial review
Clause 140 provides that the Judicial Review Act 1991 applies to a
decision, or failure to make a decision under the Bill, and conduct engaged
in to make a decision under the Bill. An individual is taken to be a person
aggrieved by the decision, failure or conduct if they are Australian citizen
or ordinarily resident in Australia; and at any time in the 2 years before the
decision, the individual engaged in a series of activities in Australia for the
protection or conservation of, or research into, the environment.
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Part 10 Miscellaneous
Division 1 Codes of practice
Approval or making of code
Clause 141 provides that the Chief Executive may approve or make a code
of practice by gazette notice that provides standard conditions for
authorities to enter or use a marine park. These codes are of an
administrative nature, often providing best practice guidelines or
addressing matters that might otherwise be inserted as conditions of a
permission or other authority. While the code is not subordinate legislation,
a code must be tabled in Parliament and may be disallowed under sections
49, 50 and 51 of the Statutory Instruments Act 1992 as if it were
subordinate legislation.
When code has effect
Clause 142 provides that each code of practice approved or made by the
Chief Executive has effect on the day it is published in the gazette notice or
a later day stated in the notice.
Access to code
Clause 143 provides that each code of practice must be made available for
public inspection at the department's head office and website, each regional
office and other appropriate places.
Division 2 Other miscellaneous provisions
Public authority's obligation about threatening incidents for
marine parks
Clause 144 provides that if a public authority becomes aware of, or
proposes carrying out an emergency response to, an incident having the
potential to harm the environment, or a person or thing in a marine park,
the authority must tell the Chief Executive about the nature of the incident
or proposed emergency response and request the Chief Executive's advice.
The power requires the Chief Executive to give the give the public
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Marine Parks Bill 2004
authority advice if requested and if the Chief Executive gives advice to a
public authority before the authority needs to respond to an incident, the
authority must consider the advice in responding to the incident. In other
words, public authorities are not prevented from taking action before the
advice given by the Chief Executive is received if such delays will impede
effective incident response.
The above requirements do not apply if the Chief Executive has advised the
public authority that the Chief Executive is satisfied with the authority's
contingency plan or other documented arrangement for dealing with an
incident of the type mentioned in subclause (1).
Chief executive's power to decide fee for producing a copy of a
document
Clause 145 provides that if the Bill allows the Chief Executive to charge a
fee for providing documents to the public (for example, for a copy of a final
management plan or zoning plan), the fee, if any, decided by the Chief
Executive must be not more than the reasonable cost of producing a copy
of the document.
Delegation of Minister's powers
Clause 146 provides that the Minister may delegate the Minister's powers
under this Bill, other than clause 42 (Moratorium on the grant of new
permissions) to an appropriately qualified public service officer. Subclause
12 defines "appropriately qualified", for a person to whom a power may be
delegated, to include having the qualifications, experience or standing
appropriate to exercise the power.
Protecting prescribed persons from liability
Clause 147 provides that a prescribed person is not civilly liable for an act
or omission made, honestly and without negligence under the Bill. If this
clause prevents a civil liability from attaching to a prescribed person, the
liability attaches to the State. A "prescribed person" means the Minister,
the Chief Executive, an officer or employee of the department, an inspector,
or a person acting under the direction or authority of an inspector.
Annual report
Clause 148 provides the Chief Executive must, within 4 months after the
end of each financial year, give the Minister a report on the administration
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of the Bill during the year. The Minister must table the report before the
Legislative Assembly within 14 sitting days after receiving it.
Approved forms
Clause 149 provides that the Chief Executive may approve forms for this
Bill.
Regulation-making power
Clause 150 provides that the Governor in Council may make regulations
under the Bill. Consistent with similar provisions under the Nature
Conservation Act 1992, a regulation may prescribe a penalty of not more
than 165 penalty units for contravention of a regulation. A regulation may
also be made for fees (other than a charge mentioned in clauses 145).
Relationship between regulation and zoning plan
Clause 151 provides that if a regulation is inconsistent with a zoning plan,
the zoning plan prevails to the extent of the inconsistency. In other words,
the zoning plan is taken to be the more specific legislation and is intended
to prevail over any "general" regulations such as those which might apply
to unzoned parks, However, a regulation is not inconsistent with a zoning
plan merely because the regulation further regulates or prohibits an activity
authorised under the plan, or otherwise increases the level of protection for
the marine environment provided by the plan.
Part 11 Transitional provisions
References to Marine Parks Act 1982
Clause 152 provides that a reference in an Act or other document to the
repealed Marine Parks Act 1982 is, if the context permits, taken to be a
reference to the Bill.
Pending legal proceedings
Clause 153 provides that any legal proceeding by or against the State under
the repealed Act not finished before the commencement of this clause may
be continued and finished as if the Bill had not been enacted.
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Marine Parks Bill 2004
Existing marine parks
Clause 154 provides that a marine park established under the repealed Act
and in existence immediately before the commencement of this clause
continues in existence. The park is taken to be established, and may be
revoked, under this Bill.
Existing zoning plans
Clause 155 saves zoning plans made and in force under the repealed Act,
subject to the staged automatic expiry requirements under the Statutory
Instruments Act 1992. The plan is taken to be prescribed under the Bill,
however, is to be read with the changes necessary to make it consistent
with, and adapt its operation to, the Bill.
Existing management plans
Clause 156 saves any management plan for a marine park in force under
the repealed Act, and provides that such plans are taken to be plans made
under the Bill.
Existing notices about designated areas
Clause 157 applies to a public notice, given under section 7 of the Marine
Parks Regulation 1990, (and in force immediately before the
commencement of this clause), that applies the provisions of a zoning plan
to a designated area established under the repealed Act. The notice
continues in force and may be amended or repealed by a regulation or
zoning plan under this Bill. In this clause a public notice is one within the
meaning of section 7 of the Marine Parks Regulation 1990.
Existing limitation on application of regulation and zoning plan
made under repealed Act
Clause 158 saves the effect of section 31 of the Marine Parks Act 1982
which permits the developers Norwood Street Project Pty Ltd ACN 099
371 972 (as trustee) and Cairns Blue Pty Ltd ACN 102 517 984 to dredge
areas of Half Moon Creek and Half Moon Bay and dispose related spoil.
Existing temporary restricted areas
Clause 159 provides that if a declaration of a temporary restricted area in
force under the repealed Act immediately before the commencement of this
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Marine Parks Bill 2004
clause, the declaration continues in force, subject to clause 96, and is taken
to have been made under part 6, division 2, and is to be read with the
changes necessary to make it consistent with, and adapt its operation to,
this Bill.
Existing permissions
Clause 160 provides that a permit in force under the repealed Act continues
in force and is taken to be a permit issued under the Bill other than a
permission under clause 15 of the Bill, to make it clear that the new
provisions on permits for reclamation are not relevant. This does not in any
way prevent a reclamation permit issued under the repealed Act from being
carried forward and remaining valued.
Section 13 of the current Marine Parks Regulation 1990 states that if an
application for grant of a further permission of the same kind (ie a renewal)
is lodged before the original permission expires, then the permission
remains in force until the application is granted or refused.
However, subclause 160(2) provides that this will not apply to the situation
where a permit has authorised the reclamation of tidal land in a marine
park, and where an application for a similar permit has been lodged but not
yet processed. If the term of the original permit expired before
commencement of the Bill, and if reclamation works have not yet been
started, a new application will need to be lodged and the provisions of
clauses 13 to 19 of the Bill will apply.
Existing applications for permissions
Clause 161 allows for an application for a permission made under the
existing Act to be carried over and processed under the Bill except where
the application relates to reclamation works intended to result in revocation
of an area of marine park. In this case the application is not covered by the
transition provision and would need to be remade under the new provisions
on reclamation and revocation under clause 13 to 19 of the Bill.
Existing orders etc.
Clause 162 provides that an order, direction, requirement, notice or
decision of the Chief Executive or an inspector under the repealed Act is, if
its effect is not exhausted at the commencement of this section, taken to
have been given or made by the person under the Bill.
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Marine Parks Bill 2004
Existing inspectors
Clause 163 provides that a person, who held an appointment as an
inspector under the repealed Act immediately before the commencement of
this clause, is taken to be appointed as an inspector under the Bill.
Part 12 Validation and declaration provisions
Validation of existing zoning plans and permissions
authorising reclamation of tidal land in a marine park
Clause 164 provides that a zoning plan made under the Marine Parks Act
1982 and providing for the reclamation of tidal land in a marine park under
permission is taken to be, and to always have been, validly made.
A permission given under the zoning plan before commencement and
authorising the reclamation of tidal land in a marine park is also taken to
be, and to always have been, validly given.
A reference in subclause (1) or (2) to a zoning plan or permission is a
reference to a zoning plan made, or a permission issued, by the chief
executive within the meaning of the Marine Parks Act 1982.
Declaration about authorised reclamation of tidal land in a
marine park
Clause 165 removes any doubt over the status of land reclaimed under the
Marine Parks Act 1982. The clause provides that non-tidal land and waters
resulting from the reclamation of tidal land in a marine park in accordance
with a permission issued under the Marine Parks Act 1982, and completed
before the commencement of this section are not, and never were, part of
the park.
However, for the purpose of enforcing a condition of a permission for the
reclamation, the non-tidal land and waters mentioned in subsection (1) are
taken to be, and to always have been, part of the park. This is necessary
given that it is normal practice to require monitoring until the reclaimed
area is properly stabilised.
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Marine Parks Bill 2004
Clause 165(3) also declares that non-tidal land and waters resulting from
the authorised reclamation of tidal land in a marine park completed after
the commencement of this section are part of the park.
Clause 165(4) provides that the declaration of non-tidal land and waters as
part of a marine park under subsection (3) may be revoked:
(a) before the commencement of clause 169 - under section 22 of the
Marine Parks Act 1982 as if the non-tidal land and waters were
tidal land and waters set apart and declared to be the park under
section 16 of that Act; or
(b) on or after the commencement of clause 169 - under part 2,
division 2.
Subclause (5) provides that "authorised reclamation", of tidal land, means
reclamation of the land in compliance with a permission issued under the
Marine Parks Act 1982.
Effect of validation and declaration on proceedings
Clause 166 provides that clauses 164 and 165 do not affect:
· a proceeding relating to the park that was heard, in whole or part, in a
court or tribunal before the commencement of this section;
· the completion, after the commencement, of any step in the
proceeding taken before the commencement; or
· the taking and completion, after the commencement, of any step in the
proceeding.
Part 13 Amendment of Marine Parks Act 1982
Act amended in pt 13
Clause 167 states that this part of the Bill amends the Marine Parks Act
1982.
Insertion of new s 10A
Clause 168 inserts, after section 10 of the existing Act, a clause that
provides that the Act has extra-territorial application. Under the Offshore
Constitutional Settlement, the States are responsible for marine parks
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Marine Parks Bill 2004
within coastal waters of the States, and the Commonwealth is responsible
for marine parks further offshore. This provision is consequently not
intended to take the seaward application of the Act outside Queensland
coastal waters unless this is specifically negotiated with the
Commonwealth, or where there is uncertainty over the location of offshore
jurisdictional boundaries. It is inserted at this stage simply to keep options
open in relation to the HMAS Brisbane that is to be sunk as a dive site north
east of Mooloolaba. The site is very near to the State-Commonwealth
jurisdictional boundary.
Part 14 Repeal
Repeal
Clause 169 repeals the Marine Parks Act 1982.
Part 15 Consequential amendments of other
Acts
Division 1 Amendment of Coastal Protection and
Management Act 1995
Act amended in div 1
Clause 170 provides that this division amends the Coastal Protection and
Management Act 1995.
Amendment of s 75 (Criteria for deciding applications)
Clause 171 amends section 75(1)(d)(ii), by substituting the repealed
"Marine Parks Act 1982" with the "Marine Parks Act 2004".
Amendment of s 93 (Approving or refusing to approve plans)
Clause 172 amends section 93(1)(c)(ii) by substituting the repealed
"Marine Parks Act 1982" with the "Marine Parks Act 2004".
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Division 2 Amendment of Fisheries Act 1994
Act amended in div 2
Clause 173 states that this division amends the Fisheries Act 1994.
Amendment of schedule
Clause 174 amends the schedule definition "fisheries legislation" by
omitting "Marine Parks Act 1982", and substituting "Marine Parks Act
2004".
© State of Queensland 2004