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Marine and Coastal Bill 2017

           Marine and Coastal Bill 2017

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
The Bill principally repeals and partially re-enacts the Coastal Management
Act 1995 and provides for the integrated and co-ordinated planning and
management of the marine and coastal environment of Victoria.

                              Clause Notes

                          Part 1--Preliminary
Clause 1   sets out the main purposes of the Bill, which are--
             •       establishing an integrated and co-ordinated whole-of-
                    government approach to protect and manage Victoria's
                    marine and coastal environment; and
             •       providing for integrated and co-ordinated policy,
                    planning, management, decision-making and reporting
                    across catchment, coastal and marine areas; and
             •       repealing and partially re-enacting the Coastal
                    Management Act 1995.
           Further, the Bill will--
             •       establish objectives and guiding principles for planning,
                    management and decision making under this Act;
             •       replace the Victorian Coastal Council with the Marine
                    and Coastal Council; and
             •       abolish the Regional Coastal Boards; and
             •       provide for the preparation of a Marine and Coastal
                    Policy, a Marine and Coastal Strategy, and a State of
                    the Marine and Coastal Environment Report; and

581344                               1     BILL LA INTRODUCTION 12/12/2017

 


 

• provide for the formation of regional and strategic partnerships to address regional and issue-based marine and coastal planning; and • provide for other planning mechanisms in the form of environmental management plans and coastal and marine management plans; and • provide for the giving of consents to use or develop or undertake works on marine and coastal Crown land and establish an application process; and • allow coastal Catchment Management Authorities and the Melbourne Water Corporation to provide advice on matters relating to and affecting coastal erosion; and • allow the Secretary to prepare and publish guidelines to assist with the implementation of this Act; and • create offences and other enforcement mechanisms relating to the unauthorised use or development of or works on marine and coastal Crown land; and • amend various other Acts to provide for integrated and co-ordinated management of the marine and coastal environment of Victoria. Clause 2 provides for the commencement of the Bill. The provisions of the Bill come into operation on a day or days to be proclaimed. Any provisions that have not come into operation before 1 October 2018 will come into operation on that day. Clause 3 sets out definitions of various terms used in the Bill. These are-- applicable Act means the Catchment and Land Protection Act 1994; the Crown Land (Reserves) Act 1978; the Environment Protection Act 1970; the Fisheries Act 1995; the Flora and Fauna Guarantee Act 1988; the Forests Act 1958; the Geothermal Energy Resources Act 2005; the Greenhouse Gas Geological Sequestration Act 2008; the Heritage Act 2017; the Land Act 1958; the Marine (Drug, Alcohol and Pollution Control) Act 1988; the Marine Safety Act 2010; the Mineral Resources (Sustainable Development) Act 1990; the National Parks Act 1975; the Offshore Petroleum and Greenhouse Gas Storage Act 2010; the Petroleum Act 1998; the Pipelines Act 2005; the Planning and Environment 2

 


 

Act 1987; the Pollution of Waters by Oil and Noxious Substances Act 1986; the Port Management Act 1995; the Transport Integration Act 2010; the Underseas Mineral Resources Act 1963; the Water Act 1989; the Wildlife Act 1975; authorised officer has the same meaning as in the Conservation, Forests and Lands Act 1987; Catchment Management Authority has the same meaning as Authority has in the Catchment and Land Protection Act 1994; coastal and marine management plan means a plan made under Division 1 of Part 7 of the Bill; coastal Catchment Management Authority means a Catchment Management Authority whose waterway management district, in whole or in part, overlaps with or abuts the marine and coastal environment; Commissioner for Environment Sustainability has the same meaning as Commissioner has in section 8 of the Commissioner for Environmental Sustainability Act 2003; consent means-- • a consent given in a coastal and marine management plan under clause 62; or • a consent given under clause 70; or • a prescribed consent; Council means the Marine and Coastal Council established under Part 3 of the Bill; Crown land means land which is, or is taken to be, unalienated land of the Crown and includes-- • land of the Crown reserved permanently or temporarily or set aside by or under an Act; and • land of the Crown occupied by a person under a lease, licence or other right; and • land of the Crown managed by a public authority or committee of management; and • land of the Crown which is, or is part of, a park within the meaning of the National Parks Act 1975; 3

 


 

Crown land manager means a person or body responsible for the management of Crown land; Department means the Department of Environment, Land, Water and Planning; development has the same meaning as in the Planning and Environment Act 1987; environmental management plan means a plan made under Division 2 of Part 6 of the Bill; marine and coastal Crown land has the meaning given by clause 4; marine and coastal environment has the meaning given by clause 5; Marine and Coastal Policy means a Marine and Coastal Policy made under Division 1 of Part 4 of the Bill; Marine and Coastal Strategy means a Marine and Coastal Strategy made under Division 2 of Part 4 of the Bill; marine environment means the following between the outer limit of Victoria coastal waters and the high-water mark of the sea-- • the land (whether or not covered by water) to a depth of 200 metres below the surface of that land; • any water covering the land referred to in the paragraph above from time to time; • the biodiversity associated with the land and water referred to in previous 2 paragraphs; Melbourne Water Corporation has the same meaning as the Water Act 1989; municipal council has the same meaning as Council has in the Local Government Act 1989; native title holder has the same meaning as in section 224 of the Native Title Act 1993 of the Commonwealth; partner agency means a government or non-government body that has an interest in or connection with the marine and coastal environment; 4

 


 

public authority means any body corporate or unincorporate established by or under an Act for a public purpose, but does not include a municipal council or a committee of management of reserved Crown land; regional and strategic partnership means a regional and strategic partnership established under Division 1 of Part 6 of the Bill; regional catchment strategy has the same meaning as in the Catchment and Land Protection Act 1994; registered Aboriginal party has the same meaning as in the Aboriginal Heritage Act 2006; relevant coastal recommendation means-- • a recommendation of the Victorian Environmental Assessment Council relating to or affecting marine and coastal Crown land that has been accepted by the Government under Part 3 of the Victorian Environmental Assessment Council Act 2001; or • a recommendation of the Land Conservation Council relating to or affecting marine and coastal Crown land under section 5(1) of the Land Conservation Act 1970 (as in force immediately before its repeal) of which notice has been given by the Governor in Council under section 10(3) of that Act (so in force), where the recommendation does not relate to land that is the subject of a recommendation to which paragraph (a) applies; sea means the sea within the limits of Victoria and includes-- • a bay; and • an inlet; and • an estuary; and • the Gippsland Lakes; and • any waters within the ebb and flow of the tide, from time to time; Secretary means the Body Corporate established by Division 1 of Part 2 of the Conservation, Forests and Lands Act 1987; 5

 


 

specified Aboriginal party, in relation to an area, means any of the following-- • if there are native title holders for the whole or part of the area--the native title holders; • if there is a traditional owner group entity appointed for the whole or part of the area and that traditional owner group entity is a party to a recognition and settlement agreement--the traditional owner group entity; • if there is a registered Aboriginal party within the meaning of the Aboriginal Heritage Act 2006 for the whole or part of the area--the registered Aboriginal party; State environment protection policy has the same meaning as in the Environment Protection Act 1970; State of the Marine and Coastal Environment Report means a State of the Marine and Coastal Environment Report made under Division 3 of Part 4 of the Bill; traditional owner group has the same meaning as in the Traditional Owner Settlement Act 2010; traditional owner group entity has the same meaning as in the Traditional Owner Settlement Act 2010; use has the same meaning as in the Planning and Environment Act 1987; Victorian coastal waters has the same meaning as the expression "coastal waters of the State" has in relation to Victoria under the Coastal Waters (State Powers) Act 1980 of the Commonwealth; waterway management district has the same meaning as in the Water Act 1989; works has the same meaning as in the Planning and Environment Act 1987. Clause 4 provides for the definition of marine and coastal Crown land for the purposes of the Bill. Subclause (1) provides that subject to this clause, marine and coastal Crown land means the following between the outer limit of Victorian coastal waters and 200 metres inland of the high-water mark of the sea-- 6

 


 

• Crown land (whether or not covered by water) to a depth of 200 metres below the surface of that land; • any water covering the land referred to in the above paragraph from time to time. Subclause (2) provides that in addition to subclause (1), marine and coastal Crown land includes Crown land (whether or not covered by water) and any water covering that land to a depth of 200 metres below the surface of that land and that is-- • more than 200 metres inland of the high-water mark of the sea; and • reserved under the Crown Land (Reserves) Act 1978 for the purposes of the protection of the coastline. Subclause (3) provides that any additional area of Crown land (whether or not covered by water) and any water covering that land may be declared by Order of the Governor in Council to be part of the marine and coastal Crown land for the purposes of the Bill. Any Order must be published in the Government Gazette. Subclause (4) provides that any Crown land to which a declaration applies under subclause (3) includes the land to a depth of 200 metre below the surface of that land. Subclause (5) provides that an area of marine and coastal Crown land may be declared by Order of the Governor in Council not to be marine and coastal Crown land for the purposes of the Bill. Any Order must be published in the Government Gazette. Clause 5 provides for the definition of marine and coastal environment for the purposes of the Bill. Subclause (1) provides that marine and coastal environment means the following between the other limits of Victorian coastal waters and 5 kilometres inland of the high-water mark of the sea-- • the land (whether or not covered by water) to a depth of 200 metres below the surface of that land; • any water covering the land referred to in the paragraph above from time to time; • the biodiversity associated with the land and water referred to in the 2 paragraphs above. 7

 


 

Subclause (2) provides that any additional area of land (whether or not covered by water), any water covering that land and the biodiversity associated with that land and water may be declared by Order of the Governor in Council to be part of the marine and coastal environment for the purposes of this Act. Any Order must be published in the Government Gazette. Subclause (3) provides that any land to which a declaration applies under subclause (2) includes the land to a depth of 200 metres below the surface of that land. Subclause (4) provides that any area that is within the marine and coastal environment may be declared by Order of the Governor in Council not to be part of the marine and coastal environment for the purposes of this Act. Any Order must be published in the Government Gazette. Clause 6 provides that the Bill binds the Crown in all its capacities, insofar as the power of the Parliament permits. Part 2--Objectives and guiding principles for the planning and management of the marine and coastal environment Part 2 of the Bill contains clauses 7 to 14, and sets out the high level objectives and guiding principles for decision makers to apply when preparing documents specified in the Bill or making decisions relating to the planning and management of the marine and coastal environment. Clause 7 establishes the objectives for the planning and management of the marine and coastal environment in Victoria. These objectives are relevant for the purposes of clauses 16(2)(a), 25(1)(a), 32(1)(a), 46(1)(c), 51(1)(c), 59(1)(c), and 69(c). The objectives are-- • to protect and enhance the marine and coastal environment; and • to promote the resilience of marine and coastal ecosystems, communities and assets to climate change; and • to respect natural processes in planning for and managing current and future risks to people and assets from coastal hazards and climate change; and • to acknowledge traditional owner groups' knowledge, rights and aspirations for land and sea country; and 8

 


 

• to promote a diversity of experiences in the marine and coastal environment; and • to promote the ecologically sustainable use and development of the marine and coastal environment and its resources in appropriate areas; and • to improve community, user group and industry stewardship and understanding of the marine and coastal environment; and • to engage with specified Aboriginal parties, the community, user groups and industry in marine and coastal planning, management and protection. Clause 8 describes the principle of integrated coastal zone management. The principle provides that the planning and management of the marine and coastal environment should be co-ordinated and integrated, taking into account long-term and short-term environmental, social and economic considerations. Clause 9 describes the principle of ecosystem-based management. The principle provides that the maintenance and, where appropriate, restoration of marine and coastal ecosystem structure and function is fundamental to the current and future use and enjoyment of Victoria's marine and coastal environment, its resources, and the ecosystem services provided. Further, an ecosystem-based approach should underpin Victoria's marine and coastal planning and management system. Clause 10 describes the principle of ecologically sustainable development. The principle provides that use and development that affects the marine and coastal environment should be focussed on improving the total quality of life of Victorians, across current and future generations, in a way that maintains the ecological processes on which life depends. Clause 11 describes the principle of evidence-based decision-making. The principle provides that marine and coastal planning and management decisions should be based on best available and relevant environmental, social and economic understanding, recognising that information will often be limited. 9

 


 

Clause 12 describes the precautionary principle. The principle provides that if there are threats of serious or irreversible environmental and other damage, lack of full certainty should not be used as a reason for postponing measures to prevent environmental or other degradation. Clause 13 describes the proportionate and risk-based principle. The principle provides that risk management and regulatory approaches should be proportionate to the risk involved. Clause 14 describes the principle of adaptive management. The principle provides that decision makers should learn from the outcomes of operational programs and, in light of that, change policies and practices. Part 3--Marine and Coastal Council Part 3 of the Bill contains clauses 15 to 23, which establishes a statewide advisory body, to be named the Marine and Coastal Council (see clause 3 for the definition of Council). The Council will provide guidance and strategic advice to the Minister. The Council will replace the Victorian Coastal Council, which will be abolished under clause 81 of the Bill. This part of the Bill includes provisions relating to the functions, membership, appointment and governance of the Council. The functions of the Council will enable it to provide independent advice on a range of matters related to the Bill, have a greater focus on the marine environment and establish committees to draw on expertise beyond the membership of the Council. The Council will provide guidance and advice on the development of statewide policy and strategy, however, the Minister will be responsible for its preparation enabling a more integrated and coordinated whole of government approach. Clause 15 establishes the Marine and Coastal Council (the Council). Clause 16 specifies the functions of the Council. The functions are-- • to provide guidance and strategic advice to the Minister on the development of the Marine and Coastal Policy and the Marine and Coastal Strategy; • to provide advice to the Minister on the implementation of the Marine and Coastal Policy and the Marine and Coastal Strategy; 10

 


 

• to provide advice to the Minister, as requested, on significant decisions under this Act relating to or affecting the marine and coastal environment; • to provide advice to the Minister on matters requiring scientific research; • to advise the Secretary on the preparation of guidelines made under this Act; • to request the Minister to establish a regional and strategic partnership; • to provide advice to the parties of a regional and strategic partnership on the preparation of a product under the partnership; • to provide advice to the Minister on the preparation of environmental management plans; • to provide advice as requested by the Minister on any matter relating to or affecting the administration of the Bill; • to carry out any other function conferred on the Council by or under the Bill or any other Act. Subclause (2) provides that the Council, in performing its functions, must have regard to the objectives and guiding principles for the planning and management of the marine and coastal environment. Clause 17 sets out the appointment requirements and considerations of the Minister for the membership of the Council. Subclause (1) provides that the Minister is to appoint a minimum of 7 but not more than 9 members to the Council. Subclause (2) provides that the Minister must appoint one of the Council members as a chairperson and one as a deputy chairperson. Subclause (3) sets out the personal requirements of a potential member which must be considered by the Minister in making an appointment to the Council. The Minister must consider-- • a person's capacity to carry out the functions of the Council; and 11

 


 

• a person's qualifications and experience in relation to the functions of the Council. Clause 18 sets out terms and conditions of the appointment of members to the Council. Subclause (1) provides that a member is appointed for a term not exceeding 5 years. The period of appointment will be specified in the instrument of appointment. Further, a member is eligible for re-appointment and is otherwise subject to the terms and conditions specified in the instrument of appointment. Subclause (2) provides that a member is entitled to receive the fees and travelling and other allowances from time to time, relating to that member, as fixed in writing by the Minister. Clause 19 provides for the resignation and removal of members of the Council. Subclause (1) provides that a member may resign from the Council. Such resignation must be in writing and sent to the Minister. Subclause (2) provides that the chairperson or deputy chairperson may resign from the office of chairperson or deputy chairperson and still remain a member of the Council. Such resignation must be in writing and sent to the Minister. Subclause (3) enables the Minister to remove a member of the Council at any time. Subclause (4) provides that where a member resigns or is removed from office, the Minister may fill the vacant office in accordance with the requirements set out in clauses 17 and 18. Clause 20 provides for declarations of pecuniary or other interests by members of the Council. Subclause (1) provides that a member must, as soon as practicable after the relevant facts have come to a member's knowledge, declare at a meeting the nature of any direct or indirect pecuniary interest, or conflict of interest, the member has in relation to a matter being considered or about to be considered by the Council. Subclause (2) provides that a person presiding at a meeting at which a declaration is made must record the declaration in the minutes of the meeting. 12

 


 

Subclause (3) provides that a member who has made a declaration under subclause (1) must not be present during any deliberation with respect to that matter (unless the Council otherwise directs) or vote on that matter. Subclause (4) provides that where a declaration is made by a member under subclause (1) and that member subsequently votes on that matter, the vote must be disallowed. Clause 21 establishes the procedure of meetings of the Council. Subclause (1) provides that the chairperson must preside over a meeting of the Council at which the chairperson is present. If the chairperson is absent, then the deputy chairperson must preside over the meeting. If both the chairperson and deputy chairperson are absent, then the members present at the meeting must elect one of those members to preside at the meeting. Subclause (2) provides that the person presiding at a meeting has a deliberate vote and, in the event of an equality of votes on any question, a second or casting vote. Subclause (3) provides that a majority of members for the time being constitutes a quorum of the Council. Subclause (4) provides that a question arising at a meeting must be determined by a majority of votes of members present and voting on that question. Subclause (5) provides that the Council may allow members to participate in a meeting by electronic or other means of communication. Subclause (6) allows the Council to regulate the proceedings of its meeting, subject to the provisions of the Bill. Clause 22 establishes the reporting requirements of the Council. Subclause (1) provides that the Council must submit a report on the performance of the Council's functions during the financial year. The report must include a summary of any advice the Council has given to the Minister during the year. Further, the report must be submitted to the Minister on or before 31 October each year. 13

 


 

Subclause (2) provides that the Minister must ensure that any report received under subclause (1) is laid before both Houses of the Parliament within 4 weeks after its receipt, or, if Parliament is not then sitting, on the next sitting day of Parliament. Clause 23 enables committees of the Council. The ability to establish committees will assist the Council to provide advice to the Minister on specific issues and challenges relating to and affecting the marine and coastal environment. Subclause (1) provides that the Council may appoint any committees that it considers necessary to assist the Council to perform its functions under this Act. Subclause (2) provides that the membership of a committee is not restricted to members of the Council. Subclause (3) provides that a member of a committee is entitled to receive the fees and travelling and other allowances from time to time, relating to that member, as fixed in writing by the Minister. Subclause (4) provides that the Council may determine the procedure of each committee. Part 4--Statewide Marine and Coastal Policy, Strategy and Report Part 4 of the Bill contains clauses 24 to 39. This part provides for the preparation of statewide documents to inform and guide planning and management of the marine and coastal environment. This part provides for the preparation of a long term policy prior to the preparation of an action focussed strategy. The statewide policy and strategy are to be co-endorsed by each responsible Minister of an applicable Act (see clause 3 for the definition of applicable Act) to ensure an integrated and coordinated whole of government approach to the planning and management of Victoria's marine and coastal environment. The development of the policy and strategy are to be informed by a State of the Marine and Coastal Environment Report which will outline the condition, and changes over time in condition, of the marine and coastal environment and the current threats to and benefits of the marine and coastal environment. The preparation of and reference to the report will promote evidence based decision making within the system. 14

 


 

Division 1 provides that the Minister must prepare a Marine and Coastal Policy (see clause 3 for the definition of Marine and Coastal Policy) for matters relating to and affecting the marine and coastal environment (see clause 5 for the definition of marine and coastal environment). The statewide policy provides the position on matters relating to and affecting the marine and coastal environment and is prepared to guide decision makers in implementing the objectives and guiding principles for the planning and management of the marine and coastal environment. The policy must also include a marine spatial planning framework that establishes a process for achieving integrated and co-ordinated planning and management of the marine environment. The marine spatial planning framework will outline the key elements of a marine planning process in Victoria, including a clear and agreed process-- • for the planning and management of Victoria's marine environment to provide a risk-based approach to determine if, where and when, marine spatial plans or other planning tools are required; and • to investigate and advise (through a risk-based approach) on the long-term priorities and timeframes for the development of regional marine plans and other planning tools; and • to outline the nature, content and objectives of these plans. The framework will-- • improve the integration of planning and management of the marine environment across Victoria and across Victorian and Commonwealth jurisdictional boundaries; and • improve the integration of marine environmental planning and management with land based planning in Victoria; and • provide for active participation of all the marine sectors in planning for the marine environment. Division 1--Marine and Coastal Policy Clause 24 provides that the Minister must prepare a Marine and Coastal Policy. Subclause (1) provides that the policy, on matters relating to and affecting the marine and coastal environment, must be made on or before 31 December 2019. 15

 


 

Subclause (2) provides that the purposes of a Marine and Coastal Policy are to outline the policies applying to the marine and coastal environment and to provide guidance to decision makers in achieving the objectives set out in Part 2. Subclause (3) provides that a Marine and Coastal Policy must include a marine spatial planning framework that establishes a process for achieving integrated and co-ordinated planning and management of the marine environment. Clause 25 provides that when preparing a Marine and Coastal Policy, the Minister must ensure that the policy is consistent with-- • the objectives set out in Part 2; and • the guiding principles set out in Part 2. Subclause (2) provides that when preparing the policy, the Minister must consider-- • subject to subclause (4), a State of the Marine and Coastal Environment Report; and • the legislation under which the land that forms part of the marine and coastal environment is managed and any other legislation which applies to the land. Subclause (3) provides that in preparing a Marine and Coastal Policy, the Minister must consult with-- • the Council; and • any of the following persons or bodies whose interests, in the opinion of the Minister, may be affected by the policy-- • the responsible Minister of an applicable Act; • a municipal council; • a specified Aboriginal party; • a public authority. Subclause (4) provides that the "state of the bays report" made under the Commissioner for Environmental Sustainability Act 2003 is taken to be a State of the Marine and Coastal Environment Report if that report is not made before the first Marine and Coastal Policy is made. 16

 


 

Clause 26 provides for public consultation on the Marine and Coastal Policy. Subclause (1) provides that before making a Marine and Coastal Policy the Minister must publish-- • on the Internet site of the Department, a copy of the draft policy and a statement that submissions on the draft policy may be made to the Minister on or before a specified date, being at least 28 days after publication; and • in a newspaper circulating generally throughout Victoria a notice that-- • summaries the contents of the draft policy; and • specifies where a copy of the draft policy can be obtained; and • states that submissions on the draft policy may be made to the Minister on or before a specified date, being at least 28 days after publication of the notice in the newspaper. Subclause (2) provides that the Minister must consider any submissions on the draft policy received on or before the date specified in the published notice. Clause 27 provides for the endorsement of the Marine and Coastal Policy. The Minister must obtain agreement on the contents of a proposed policy from each Minister responsible for an applicable Act and any other Minister, whose interests the Minister considers may be affected by the proposed policy, prior to the making of the policy. Co-endorsement is required to promote an integrated and coordinated whole of government approach to the planning and management of Victoria's marine and coastal environment. Clause 28 provides for the making and publication of the Marine and Coastal Policy. Subclause (1) provides that the Minister must make the Marine and Coastal Policy, with or without amendment, after considering any submissions on the draft. 17

 


 

Subclause (2) provides that the Minister must publish a notice of the making of a Marine and Coastal Policy in the Government Gazette. Subclause (3) provides that a Marine and Coastal Policy comes into operation on the date on which the Minister publishes a notice of the making of the policy in the Government Gazette or on any later date specified in the notice. Subclause (4) provides that copies of the following documents must be published on the Internet site of the Department-- • a copy of a Marine and Coastal Policy; • a copy of any amendment to a Marine and Coastal Policy; • a consolidated version of a Marine and Coastal Policy. Clause 29 provides for the amendment of the Marine and Coastal Policy. Subclause (1) provides that the Minister may amend a Marine and Coastal Policy at any time with the agreement of the responsible Minister of an applicable Act, whose interests, in the opinion of the Minister, may be affected by the amendment. Subclause (2) provides that the amendment of a Marine and Coastal Policy must be treated as if the amendment was a draft policy. Subclause (3) provides that subclause (2) does not apply in circumstances where the Minister considers any amendment to the published policy to be fundamentally declaratory, machinery or administrative in nature. Such amendments can be made without requiring the amendment to be treated as if the amendment was a draft policy. Division 2--Marine and Coastal Strategy Division 2 provides that the Minister must prepare a Marine and Coastal Strategy (see clause 3 for definition of Marine and Coastal Strategy) for matters relating to and affecting the marine and coastal environment. The statewide strategy provides the actions to be undertaken to achieve the policy positions, objectives and guiding principles for the planning and management of the marine and coastal environment. The strategy also outlines the agencies responsible for the delivery of the actions and the timeframes for achieving these. 18

 


 

Clause 30 provides for the preparation of a Marine and Coastal Strategy. Subclause (1) provides that the Minister must make a Marine and Coastal Strategy on matters relating to and affecting the marine and coastal environment. Subclause (2) provides that the purpose of a Marine and Coastal Strategy is to set out the actions required to implement the Marine and Coastal Policy. Subclause (3) provides that a Marine and Coastal Strategy must include an implementation plan that contains the proposed timeframes for the implementation of actions and identifies the agencies responsible for delivery of those actions. Subclause (4) provides that the Secretary is responsible for co-ordinating the implementation of the Marine and Coastal Strategy. Clause 31 prescribes the timeframes for preparing and making the Marine and Coastal Strategy. Subclause (1) provides that the Minister must make a Marine and Coastal Strategy within 12 months of making a Marine and Coastal Policy. Subclause (2) provides that the Minister must prepare and make further Marine and Coastal Strategies on or before every fifth year after the making of the first strategy under subclause (1). Subclause (3) provides that a Marine and Coastal Strategy must relate to the period of 5 years starting on 1 January in the year following its making. Clause 32 enables the preparation of the Marine and Coastal Strategy. Subclause (1) provides that, when preparing a strategy, the Minister must ensure that that strategy is consistent with-- • the objectives set out in Part 2; and • the guiding principles set out in Part 2; and • the Marine and Coastal Policy. 19

 


 

Subclause (2) provides that in preparing a Marine and Coastal Strategy, the Minister must consider-- • subject to the Bill a State of the Marine and Costal Environment Report; and • the legislation under which the land that forms part of the marine and coastal environment is managed and any other legislation applying to the land. Subclause (3) provides that in preparing a Marine and Coastal Strategy, the Minister must consult with-- • the Council; and • any of the following persons or bodies whose interests, in the opinion of the Minister, may be affected by the strategy-- • the responsible Minister of an applicable Act; • a municipal council; • a specified Aboriginal party; • a public authority. Subclause (4) provides that the "state of the bays report" made under the Commissioner for Environmental Sustainability Act 2003 is taken to be a State of the Marine and Coastal Environment Report if that report is not made before the first Marine and Coastal Strategy is made. Clause 33 provides for public consultation on the Marine and Coastal Strategy. Subclause (1) provides that before making a Marine and Coastal Strategy, the Minister must publish-- • copies of the following documents to on the Internet site of the Department-- • a copy of the draft strategy; and • a statement that submissions on the draft strategy may be made to the Minister on or before a specified date, being at least 28 days after publication; and 20

 


 

• in a newspaper circulating generally throughout Victoria a notice that-- • summarises the contents of the draft strategy; and • specifies where a copy of the draft strategy can be obtained; and • states that submissions on the draft strategy may be made to the Minister on or before a specified date, being at least 28 days after publication of the notice in the newspaper. Subclause (2) provides that the Minister must consider any submissions on the draft strategy received on or before the date specified in the published notice. Clause 34 provides for the endorsement of the Marine and Coastal Strategy. Prior to making a Marine and Coastal Strategy, the Minister must obtain agreement on the contents of the strategy from each Minister responsible of an applicable Act and any other Minister whose interests the Minister considers may be affected by the strategy. Co-endorsement of the strategy is required to promote an integrated and coordinated whole of government approach to taking actions to implement the marine and coastal strategy. Clause 35 provides for the making and publication of the Marine and Coastal Strategy. Subclause (1) provides that the Minister must make the strategy, with or without amendment, after considering any submissions on the draft Marine and Coastal Strategy received through the public consultation process. Subclause (2) provides that the Minister must publish a notice of the making of a Marine and Coastal Strategy in the Government Gazette. Subclause (3) provides that a Marine and Coastal Strategy comes into operation on the date on which the Minister publishes a notice of the making of the strategy in the Government Gazette or on any later date specified in the notice. 21

 


 

Subclause (4) provides that copies of the following documents must be published on the Internet site of the Department-- • a copy of a Marine and Coastal Strategy; • a copy of any amendment to a Marine and Coastal Strategy; • a consolidated version of a Marine and Coastal Strategy. Clause 36 provides for the amendment of the Marine and Coastal Strategy. Subclause (1) provides that the Minister may amend a Marine and Coastal Strategy at any time with the agreement of each responsible Minister of an applicable Act, whose interests, in the opinion of the Minister, may be affected by the amendment. Subclause (2) provides that the amendment of a Marine and Coastal Strategy must be treated as if the amendment was a draft strategy. Subclause (3) provides that subclause (2) will not apply in circumstances where the Minister considers any amendment to the published strategy to be fundamentally declaratory, machinery or administrative in nature. Such amendments can be made without requiring the amendment to be treated as if the amendment was a draft strategy. Division 3--State of the Marine and Coastal Environment Report Division 3 provides for the preparation of a State of the Marine and Coastal Environment Report (see clause 3 for the definition of State of the Marine and Coastal Environment Report). The report will document the condition of the marine and coastal environment at a point in time. The report will also identify threats to and the benefits of the marine and coastal environment. The information provided in the report will be used to inform the preparation of the policy and strategy to better inform the policy positions and priority actions included within them to promote evidence based decision making. Clause 37 provides for the preparation and making of a State of the Marine and Coastal Environment Report. Subclause (1) provides, subject to subclause (3), that the Minister must cause to be prepared and made a State of the Marine and Coastal Environment Report. 22

 


 

Subclause (2) provides that a State of the Marine and Coastal Environment Report must include the following information-- • the condition of the marine and coastal environment; • the environmental, social and economic benefits of the marine and coastal environment; • the threats to the marine and coastal environment. Subclause (3) provides that the Minister may request the Commissioner for Environmental Sustainability to prepare and make a State of the Marine and Coastal Environment Report. Subclause (4) provides that, if requested by the Minister under subclause (3), the Commissioner for Environmental Sustainability must prepare and make a State of the Marine and Coastal Environment Report. Clause 38 establishes the timeframes for a State of the Marine and Coastal Environment Report. Subclause (1) provides that the Minister must cause to be prepared and made a State of the Marine and Coastal Environment within 5 years of making a Marine and Coastal Policy. Subclause (2) provides that the Minister must cause to be prepared and made further State of the Marine and Coastal Environment Reports on or before every fifth year after the tabling of the report under clause 39. Clause 39 provides for the tabling and publication of the Marine and Coastal Environment Report. Subclause (1) provides that the Minister must cause a copy of the State of the Marine and Coastal Environment Report to be laid before each House of the Parliament within 10 sitting days of that House after the making of the report. Subclause (2) provides that the Minister, as soon as practicable after a State of the Marine and Coastal Environment Report is laid before each House of the Parliament under subclause (1) must-- • publish a copy of the report on the Internet site of the Department; and 23

 


 

• publish a notice of the making of the report in the Government Gazette. The particulars of such notice must include where a copy of the report may be obtained. Part 5--Reporting requirements and guidelines Part 5 of the Bill contains clauses 40 and 41 and sets out the reporting requirements of the Department with respect to the implementation of documents prepared under the Bill. Part 5 also provides the Secretary with the ability to make guidelines with respect to the Marine and Coastal Policy, the Marine and Coastal Strategy and any other matters relating to the implementation of the Bill. Clause 40 provides that the Department must include in its annual report for a financial year under Part 7 of the Financial Management Act 1994-- • a summary of the implementation of a Marine and Coastal Strategy; and • a summary of any product made under a regional and strategic partnership, including the status of the implementation of the product; and • a summary of the implementation of any environmental management plans; and • a summary of any consents given. Clause 41 provides that the Secretary may make guidelines. Subclause (1) provides that the Secretary may make guidelines in relation to the Marine and Coastal Policy, the Marine and Coastal Strategy, and any other matters regarding the implementation of the Bill. Subclause (2) provides that, without limiting subclause (1), guidelines may be made for or with respect to any of the following matters-- • the process for preparing and the content of coastal and marine management plans; • data collection and monitoring; • the location and design of structures in the marine and coastal environment. 24

 


 

Subclause (3) provides that the Secretary must consult with the Council before making any guidelines under this clause. Subclause (4) provides that on the making of any guidelines, the Secretary must ensure that a copy of the guidelines is published on the Internet site of the Department. Part 6--Regional marine and coastal planning Part 6 of the Bill contains clauses 42 to 55, and provides for regional marine and coastal planning. This part provides for a partnership approach to planning at a regional or issue specific scale in the marine and coastal environment and provides for tools to better plan for and take action to improve the health of the marine environment. This part requires regional marine and coastal planning to be undertaken in consultation with the community and consistent with the objectives and guiding principles and the statewide policy and strategy. This ensures an integrated and co-ordinated approach to the planning and management of the marine and coastal environment. Division 1--Regional and strategic partnerships Division 1 provides for the establishment of regional and strategic partnerships (see clause 3 for definition of regional and strategic partnership) to respond to an identified regional issue relating to or affecting the marine and coastal environment and to prepare a product. A product may include coastal hazard assessments, adaptation plans, visitation demand management strategies or regional marine plans. Clause 42 provides for the establishment of regional and strategic partnerships. Subclause (1) provides that the Minister, by instrument, may establish a regional and strategic partnership between 2 or more partner agencies (see clause 3 for the definition of partner agency). Subclause (2) specifies that the purpose of a regional and strategic partnership is to respond to an identified regional issue relating to or affecting the marine and coastal environment and to prepare a product. Subclause (3) provides that the Council or a partner agency may request the Minister to establish a regional and strategic partnership. 25

 


 

Subclause (4) specifies that a regional and strategic partnership must be established with the agreement of each partner agency. Clause 43 establishes the scope of a regional and strategic partnership. Subclause (1) specifies that the instrument establishing a regional and strategic partnership must include-- • the partner agencies to which the partnership applies, including a lead partner agency; and • the terms of reference of the partnership; and • a statement of whether an implementation plan is necessary for the purposes of the partnership; and • the reporting requirements in relation to the partnership. Subclause (2) specifies that the functions of the lead partner agency are to-- • co-ordinate the preparation and implementation of a product made under the regional and strategic partnership; and • provide the Secretary with any information required for the purposes of reporting under clause 40. Clause 44 provides that the Minister must publish a copy of the instrument establishing a regional and strategic partnership in the Government Gazette. Clause 45 specifies the matters to which the parties to a regional and strategic partnership must have regard to in performing a function. These matters include-- • the terms of reference of the partnership; and • the scope of the issue being considered; and • the timeframes for preparing and implementing the product. Clause 46 provides for the preparation of products under regional and strategic partnerships. 26

 


 

Subclause (1) provides that in preparing a product under a regional and strategic partnership, the parties to the partnership must ensure that the product is consistent with-- • the Marine and Coastal Policy; and • the Marine and Coastal Strategy; and • the objectives set out in Part 2; and • the guiding principles set out in Part 2; and • any guidelines made under clause 41; and • any regional catchment strategy applying to any land affected by the product. Subclause (2) provides that, in additional to subclause (1), the parties to the partnership must consider the legislation under which the land forms part of the marine and coastal environment is managed, and any other legislation applying to the land. Subclause (3) provides that in preparing a product under a regional and strategic partnership, the parties to the partnership must consult with-- • the Council; and • any of the following persons or bodies whose interests, in the opinion of the parties, may be affected by the product-- • the responsible Minister of an applicable Act; • a municipal council (if the municipal council is not one of the parties); • a specified Aboriginal party; • a public authority. Clause 47 provides for public consultation on products under regional and strategic partnerships. Public consultation is required to ensure the community's views are considered in developing a product and individuals have an opportunity to have their say on issues that may affect them. 27

 


 

Subclause (1) provides that before making a product under a regional and strategic partnership, the lead partner agency of the partnership must publish-- • on the Internet site of the Department-- • a summary of the proposed product; and • a statement that submissions on the proposed product may be made to the lead partner agency on or before a specified date, being at least 28 days after publication; and • in a newspaper circulating throughout Victoria, a notice that-- • summarises the proposed product; and • specifies where a copy of the product can be obtained; and • states that submissions on the proposed product may be made to the lead partner agency on or before a specified date, being at least 28 days after the publication of the notice in the newspaper. Subclause (2) provides that the parties must consider any submissions received on or before the specified date. Clause 48 provides for the Ministerial approval of products under regional and strategic partnerships. Subclause (1) provides that after considering any submissions in relation to a proposed product under a regional and strategic partnership, the parties to the partnership must submit the proposed product to the Minister for approval. Subclause (2) provides that the Minister must-- • approve the product with or without amendment; or • refuse to approve the product and direct the regional and strategic partnership to amend the product. Subclause (3) provides that the Minister must publish notice of the approval of a proposed product in the Government Gazette. 28

 


 

Subclause (4) provides that an approved product comes into operation-- • on the date on which the notice under subclause (3) is published in the Government Gazette; or • on any later date specified in the notice. Division 2--Environmental management plans Division 2 provides for the preparation of environmental management plans (see clause 3 for definition of environmental management plan) for matters relating to and affecting Port Phillip Bay and in respect of any other area of the marine environment. Clause 49 provides for environmental management plans. Subclause (1) requires the Minister to prepare and make an environmental management plan on matters relating to and affecting Port Phillip Bay. Subclause (2) provides that, in addition to subclause (1), the Minister may prepare and make an environmental management plan in respect of any other area of the marine environment. Subclause (3) provides that the "Port Phillip Bay environmental management plan" required under the State environment protection policy (Waters of Victoria) and made under the Environment Protection Act 1970 is taken to be an environmental management plan made under this Division until an environmental management plan is made under subclause (1). Clause 50 establishes the scope of environmental management plans. This clause enables environmental management plans to consider the broad range of threats to the health of the marine environment. An environmental management plan must include-- • proposed actions to be undertaken to improve water quality, protect beneficial uses and to address threats relating to the area in respect of which the plan is prepared; and • a description of how the plan promotes the objectives of any State environment protection policy applying to that area; and 29

 


 

• an implementation plan including proposed timeframes for the implementation of actions and identifies the agencies responsible for delivering those actions; and • a framework to monitor, evaluate and report on the implementation of the environmental management plan. Clause 51 provides for the preparation of environmental management plans. Subclause (1) provides that, in preparing an environmental management plan, the Minister must ensure that the plan is consistent with-- • the Marine and Coastal Policy; and • the Marine and Coastal Strategy; and • the objectives set out in Part 2; and • the guiding principles set out in Part 2; and • any guidelines prepared under clause 41; and • any regional catchment strategy applying to any land affected by the plan; and • any product made under a regional and strategic partnership that applies to any land affected by the plan. Subclause (2) provides that, in addition to subclause (1), the Minister must consider the legislation under which the land that forms part of the marine environment is managed, and any other legislation applying to the land. Subclause (3) provides that in preparing an environmental management plan, the Minister must consult with-- • the Council; and • any of the following persons or bodies whose interests, in the opinion of the Minister, may be affected by the plan-- • the responsible Minister of an applicable Act; • a municipal council; • a specified Aboriginal party. 30

 


 

Clause 52 establishes the requirements for public consultation on environmental management plans. Subclause (1) provides that before making an environmental management plan the Minister must publish-- • on the Internet site of the Department-- • a copy of the draft plan; and • a statement that submissions on the draft plan may be made to the Minister on or before a specified date, being at least 28 days after publication; and • in a newspaper circulating generally throughout Victoria a notice that-- • summarises the contents of the draft plan; and • specifies where a copy of the draft plan can be obtained; and • states that submissions on the draft plan may be made to the Minister on or before a specified date, being at least 28 days after publication of the notice in the newspaper. Subclause (2) provides that the Minister must consider any submissions received on or before the specified date. Clause 53 establishes the publication requirements of environmental management plans. Subclause (1) provides that the Minister must make the plan, with or without amendments, after considering any submissions on the draft environmental management plan. Subclause (2) provides that the Minister must publish a notice of the making of an environmental management plan in the Government Gazette. Subclause (3) provides that an environmental management plan comes into operation-- • on the date on which the notice under subclause (1) is published in the Government Gazette; or • on any later date specified in the notice. 31

 


 

Subclause (4) provides that the Minister must publish a copy of the environmental management plan on the Internet site of the Department. Clause 54 provides for the amendment of environmental management plans. Subclause (1) provides that the Minister may amend an environmental management plan at any time. Subclause (2) provides that clauses 49 to 53 apply to the amendment of an environmental management plan as if the amendment were a draft plan. Subclause (3) provides that subclause (2) does not apply if the Minister considers the amendment to be fundamentally declaratory, machinery or administrative in nature. Clause 55 provides for the review of environmental management plans to ensure that such plans remain consistent with any amendments to the Marine and Coastal Policy and Marine and Coastal Strategy. Subclause (1) provides that the Minister must cause a review to be made of an environmental management plan no later than 5 years after the making of the plan. Subclause (2) provides that after reviewing an environmental management plan, the Minister may amend the plan in accordance with Part 6, Division 2. Part 7--Local marine and coastal management Part 7 of the Bill contains clauses 56 to 75, which provides for more integrated local scale planning and management with the ability to plan across multiple Crown land managers to better reflect the scale of natural coastal processes and improve integration across the marine and coastal environment. This part also retains an important land use planning control while reducing the administrative burden on applicants and Crown land managers and strengthening its compliance and enforcement tools. This part also enables a key technical gap to be addressed by enabling coastal Catchment Management Authorities and Melbourne Water Corporation to provide advice on matters relating to and affecting coastal erosion. 32

 


 

Division 1--Coastal and marine management plans Division 1 provides for the preparation of coastal and marine management plans by Crown land managers. Clause 56 provides that the definition of marine and coastal Crown land (see clause 3 for definition of marine and coastal Crown land) for the purposes of Division 1 includes the biodiversity associated with marine and coastal Crown land. The definition needs to include the biodiversity in and on the land and in the water to ensure that plans consider how the use, development, and works on that land and waters affects biodiversity. The consent provisions in Division 2 do not apply to this biodiversity as other legislation governs what interactions may occur with the biodiversity. For example, the Wildlife Act 1975 provides the framework for the management and use of wildlife. Clause 57 provides for the preparation and making of coastal and marine management plans. Subclause (1) provides that, subject to this clause, one or more Crown land managers may prepare and make a coastal and marine management plan on matters relating to and affecting marine and coastal Crown land. Subclause (2) provides that the purpose of a coastal and marine management plan is to provide direction for the future local management of an area of marine and coastal Crown land. Subclause (3) provides that the Minister may specify an area of marine and coastal Crown land in respect of which a coastal and marine management plan must be made. Subclause (4) provides that the Crown land manager in respect of the area specified in subclause (3) must prepare and make a coastal and marine management plan for that area within 3 years after an area has been specified in subclause (3). Subclause (5) provides that, if there is more than one Crown land manager in respect of an area, a lead Crown land manager must be specified to be responsible for the preparation and making of the plan. The lead Crown land manager must be appointed by-- • the Crown land managers; or 33

 


 

• the Minister, in an area that has been specified under subclause (3). This clause gives multiple Crown land managers the flexibility to plan for the management of marine and coastal Crown land collectively or, where the Minister determines it is appropriate, for the Minister to specify an area of land where a plan must be made by the relevant Crown land managers. Clause 58 establishes the scope of coastal and marine management plans. Subclause (1) provides that a coastal and marine management plan must include-- • an implementation plan including proposed timeframes for the implementation of actions and the agencies responsible for delivering those actions; and • a framework to monitor, evaluate and report on the implementation of the plan; and • a description of any proposed use, development or works for the area to which the plan applies. Subclause (2) provides that in addition to subclause (1), coastal and marine management plan may-- • include a description of any proposed use, development or works requiring consent under clause 70; and • apply, adopt or incorporate any matter contained in any document whether-- • wholly or partially or as amended by the plan; or • as in force at a particular time or as amended from time to time. Clause 59 establishes the requirements for the preparation of coastal and marine management plans. Subclause (1) provides that when preparing a coastal and marine management plan, the Crown land manager must ensure the plan is consistent with-- • the Marine and Coastal Policy; and • the Marine and Coastal Strategy; and • the objectives set out in Part 2; and 34

 


 

• the guiding principles set out in Part 2; and • any guidelines made under clause 41; and • any regional catchment strategy applying to any land affected by the plan; and • any product made under a regional and strategic partnership that applies to any land affected by the plan. Subclause (2) provides that, in addition to subclause (1), the Crown land manager must consider the legislation under which the land that forms part of marine and coastal Crown land is managed, and any other legislation applying to that land. Subclause (3) provides that when preparing a coastal and marine management plan the Crown land manager must consult with-- • the Council; and • any of the following persons or bodies whose interests, in the opinion of any Crown land manager to which the plan applies, may be affected by the plan-- • the responsible Minister of an applicable Act; • a municipal council; • a specified Aboriginal party; • a licence holder or lessee in respect of marine and coastal Crown land. Clause 60 establishes the public consultation requirements on coastal and marine management plans. Subclause (1) provides that before making a coastal and marine management plan, the Crown land manager must publish in the Government Gazette and in a newspaper circulating generally throughout Victoria, a notice that-- • summarises the contents of the draft plan; and • specifies where a copy of the draft plan can be obtained; and • states that submissions on the draft plan may be made to the Crown land manager on or before a specified date, being at least 28 days after publication. 35

 


 

Subclause (2) provides that the Crown land managers must consider any submissions received on or before the specified date. Clause 61 provides for the Ministerial approval of coastal and marine management plans. Subclause (1) provides that after considering any submissions in relation to a draft coastal and marine management plan, the Crown land manager must submit the plan to the Minister for approval. Subclause (2) provides that the Minister must-- • approve the coastal and marine management plan with or without amendment; or • refuse to approve the coastal and marine management plan and direct the Crown land manager to amend the plan. Subclause (3) provides that the Minister must publish notice of the approval of a coastal and marine management plan in the Government Gazette. Subclause (4) provides that a coastal and marine management plan comes into operation on-- • on the date on which the notice under subclause (3) is published in the Government Gazette; or • on any later date specified in the notice. Subclause (5) provides the Minister must publish on the Internet site of the Department a copy of the coastal and marine management plan. Clause 62 provides that, when approving a coastal and marine management plan, the Minister may give consent to any use, development or works that may be undertaken in the area to which the plan applies. Clause 63 provides for the amendment of coastal and marine management plans. Subclause (1) provides that the Minister may approve the amendment of a plan at any time. 36

 


 

Subclause (2) provides that clauses 57 to 62 apply to the amendment of a plan as if the amendment were a draft plan. Subclause (3) provides that subclause (2) does not apply if the Minister considers the amendment to be fundamentally declaratory, machinery or administrative in nature. Clause 64 establishes the requirements for reviewing coastal and marine management plans. Subclause (1) provides that the Crown land manager must cause a review of a coastal and marine management plan to be made no later than 5 years after the commencement of the plan. Subclause (2) provides that after a review of the coastal and marine management plan under subclause (1), the Minister may approve the amendment of the plan in accordance with Division 1 of Part 7. Division 2--Consents Division 2 establishes the consent requirements applying to the use, development and works on marine and coastal Crown land. Clause 65 provides that a person must obtain consent to use or develop, or undertake works on, marine and coastal Crown land. Subclause (1) provides that subject to Part 7, it is an offence for a person to use or develop, or undertake works on, marine and coastal Crown land without a consent. The penalty for breach of this provision is-- • in the case of a natural person, 60 penalty units; and • in the case of a body corporate, 300 penalty units. Subclause (2) provides that subclause (1) does not apply to any use, development or works on marine and coastal Crown land that is a prescribed exemption. The clause makes it an offence for a person without a consent to use or develop, or undertake works on, marine and coastal Crown land. 37

 


 

Clause 66 provides that a person must comply with the conditions of a consent other than a reporting condition. The penalty for breach of this provision is-- • in the case of a natural person, 60 penalty units; and • in the case of a body corporate, 300 penalty units. The clause makes it an offence for a person to whom a consent is given to fail to comply with a condition of that consent, other than a reporting condition. Clause 67 makes it an offence for a person to fail to comply with a reporting condition of a consent. The penalty for breach of this provision is-- • in the case of a natural person, 12 penalty units; and • in the case of a body corporate, 60 penalty units. The clause makes it an offence for a person to whom a consent is given to fail to comply with a reporting condition. The penalties for this offence are less than those for not having a consent (see clause 65) or not complying with a non-reporting condition (see clause 66) as the impact of such a breach will be less. Clause 68 establishes the process which applies to applications for consents. Subclause (1) provides that a person may apply to the Minister for a consent to use or develop, or undertake works on, marine and coastal Crown land. Subclause (2) provides that such application must be made in a manner approved by the Minister. Subclause (3) provides that if the responsible authority under the Planning and Environment Act 1987 gives the Minister, the Secretary or the Department, as a referral authority under that Act, a copy of an application under that Act for a permit for a use or development of, or works on, marine and coastal Crown land, that application is taken to be an application under this clause for a consent, unless a consent has already been given under this Division. 38

 


 

Clause 69 this clause provides that, in determining an application under clause 68, the Minister must ensure that the consent is consistent with-- • the Marine and Coastal Policy; and • the Marine and coastal Strategy; and • the objectives set out in Part 2; and • the guiding principles set out in Part 2; and • any product made under a regional strategic partnership that applies to any land affected by the consent; and • any environmental management plan applying to that land; and • any coastal and marine management plan applying to the land; and • any relevant coastal recommendation (see clause 3 for definition of relevant coastal recommendation). Clause 70 establishes the requirements applying to Ministerial determination of an application for consent. Subclause (1) provides that, after considering an application under clause 68, the Minister must make a determination to-- • consent to the use, development or works; or • refuse to consent to the use, development or works; or • consent to some but not all of the use, development or works; or • consent to the use, development or works, subject to conditions. Subclause (2) provides that a consent may apply, adopt or incorporate any matter contained in any document whether-- • wholly or partially or as amended by the consent; or • as in force at a particular time or as amended from time to time. Subclause (3) provides that, subject to this clause, the Minister must inform the applicant in writing of the determination on or before 60 business days after receiving the application. 39

 


 

Subclause (4) provides that the Minister, within the period referred to in subclause (3), may request any additional information that the Minister considers necessary to assist the determination of the application. Subclause (5) provides that a request under subclause (4) must be made in writing and include-- • the information to be provided; • the date by which the information must be provided, being not less than 30 business days after the request. Subclause (6) provides that if information is requested under subclause (4), the Minister must determine the application within 30 business days after receiving that additional information. Subclause (7) provides that an application for a consent is to taken to be refused if-- • the Minister fails to make a determination within the time required under this clause; or • the applicant fails to provide the additional information requested by the Minister by the specified date. Clause 71 provides for the Minister to require the payment of a bond in relation to the giving of a consent under clause 70. Subclause (1) provides for the Minister, in making a determination under clause 70, may impose a condition on the consent requiring the person to provide a bond as security for the carrying out of the use, development or works. Subclause (2) allows the Minister to impose the condition by directing the person-- • to deposit with the Secretary a sum of money fixed by the Minister; and • to deposit that sum within a period of time determined by the Secretary; and • to give an undertaking to pay that sum with security in a form determined by or in accordance with the consent. Subclause (3) provides that the condition may provide that the whole or part of the sum is forfeited if there is any failure by the person to carry out a use, development or works in accordance 40

 


 

with the consent or conditions of the consent to the satisfaction of the Secretary. Subclause (4) provides that the Secretary must apply any forfeited sum for the purposes of rehabilitating, rectifying or reinstating the land. Subclause (5) provides that any money paid as a bond must be returned to the person on a date specified in the consent to the extent that the money has not been forfeited. Subclause (6) provides that if any money is paid into the Consolidated Fund and it is subsequently returned, the Consolidated Fund is appropriated to the necessary extent to enable the return of that money. This clause provides the Minister with the flexibility to impose a bond in relation to a consent where a suitable bond has not been imposed under another lease or contract relating to the land. The bond is designed to ensure that if the person holding consent does not comply with a consent or a condition of the consent there are monies available to rectify any breach. If the bond is not forfeited the person undertaking a use, development or woks will have the bond monies returned on a date specified in the consent condition. Clause 72 provides for the Minister to require the payment of a periodic management charge over marine and coastal Crown land in relation to the giving of a consent under clause 70. Subclause (1) provides that the Minister, in giving a consent under clause 70, may impose a condition requiring the person to pay a periodic management charge in respect of the consent. Subclause (2) provides that the Minister may impose the condition by directing the person-- • to provide to the Secretary a sum of money fixed by reference to fee units within the meaning of the Monetary Units Act 2004; • to provide that sum within a period of time determined by the Secretary. Subclause (3) provides that a management charge provided to the Secretary under subclause (2) must be applied for the purposes of managing the land in respect of which the consent 41

 


 

is given, including providing the management charge to a Crown land manager. Subclause (4) provides that any money provided that is not spent for the purposes of managing the land in respect of which the consent is given must be returned to the person on a date specified in the consent. Subclause (5) provides that if any money is paid into the Consolidated Fund and it is subsequently returned, the Consolidated Fund is appropriated to the necessary extent to enable the return of that money. Subclause (6) provides that a Crown land manager to which a management charge has been provided must provide the Secretary with a summary of how the management charge was applied during the preceding financial year. Clause 73 provides for the Minister to amend any management charge imposed under clause 72. Subclause (1) provides that a Crown land manager may request the Minister to increase or decrease a management charge imposed under clause 72. Subclause (2) requires that before increasing the management charge, the Minister must-- • notify the person that the Minister proposes to increase the management charge; and • allow the person an opportunity to make a submission orally or in writing. Subclause (3) provides that a submission made under subclause (2) must be made within the period specified in the notice. Subclause (4) provides that in determining whether to increase the management charge, the Minister must-- • have regard to any submission made under subclause (2); and • notify the person of the Minister's determination. Subclause (5) provides that the increase of a management charge takes effect on the date specified in the notice of the Minister's decision under subclause (4). 42

 


 

Clause 74 provides that general conditions, other than bonds (see clause 71) and management charges (see clause 72), may be under regulations imposed in relation to the giving of a consent under clause 70. Subclause (1) provides that in addition to a condition imposed on a consent under clause 70, a consent may be subject to a prescribed condition. Subclause (2) provides that such a condition prescribed under subclause (1) may be of general application or apply to a specified class of consent. Subclause (3) provides that in the event of any inconsistency between a condition imposed on a consent under clause 70 and a condition prescribed under subclause (1), the condition imposed under clause 70 prevails. Division 3--Coastal erosion Clause 75 provides for the Minister to seek technical advice on matters relating to coastal erosion from a coastal Catchment Management Authority (see clause 3 for definition of coastal Catchment Management Authority) or the Melbourne Water Corporation (see clause 3 for definition of Melbourne Water Corporation) and for that advice to be provided to a person or persons the Minister specifies. Subclause (1) provides that the Minister, by notice published in the Government Gazette, may require a coastal Catchment Management Authority or the Melbourne Water Corporation to provide technical advice on any matters relating to or affecting coastal erosion in its waterway management district, including matters relating to or affecting the marine and coastal environment. Subclause (2) provides that a notice published under subclause (1) must specify to whom that advice is to be provided. Subclause (3) provides that the Minister may specify that the advice be provided to one or more of the Minister, the Secretary, a municipal council and the community. Subclause (4) provides that a coastal Catchment Management Authority or the Melbourne Water Corporation must comply with a notice under this clause. 43

 


 

Part 8--General obligations on Crown land managers Part 8 of the Bill contains clause 76 which provides for general obligations for Crown land managers in undertaking all reasonable steps to implement the components of the Bill. Clause 76 sets out the general obligations on Crown land managers Subclause (1) requires Crown land managers (see clause 3 for the definition of Crown land manager), in performing a function involving land management on behalf of the Crown or under an Act, to take all reasonable steps to implement the following in respect of that land-- • the Marine and Coastal Policy; • the Marine and Coastal Strategy; • a product made under a regional and strategic partnership; • an environmental management plan; • a coastal and marine management plan. Subclause (2) provides that in the event of any inconsistency between a document referred to in subclause (1) and the legislation under which any land affected by the document is managed, or any other legislation applying to that land, the legislation prevails over the document. This clause requires Crown land managers to do everything they can to implement the Bill and ensures where there is conflict with the specific legislation applying to the marine and coastal Crown land they manage; the conflict is resolved in favour of the specific legislation. Part 9--Authorised officers Part 9 of the Bill contains clauses 77 to 79, which sets out the powers of authorised officers (see clause 3 for definition of authorised officer) and offences for not complying with requests or directions authorised officers are empowered to make by the Bill. 44

 


 

Clause 77 sets out when an authorised officer may request a person's name and address. Subclause (1) provides that an authorised officer may request a person to give that person's name and address if the authorised officer reasonably believes that-- • the person has contravened, or is contravening, a consent given to that person; or • the person is carrying out an activity in respect of which a consent is required but the person does not have a consent. Subclause (2) provides that on the request of an authorised officer under subclause (1), a person must not refuse or fail to state the person's true name and address. The penalty for breach of this provision is 20 penalty units. Clause 78 sets out when an authorised officer may direct a person to stop an activity on, or remove items from, marine and coastal Crown land. Subclause (1) provides that an authorised officer may direct a person on marine and coastal Crown land-- • to stop an activity being carried out by the person if the authorised officer reasonably believes that the activity constitutes a contravention of the requirement to obtain a consent or a contravention of a consent; or • to remove any matter or thing from marine and coastal Crown land if the person is carrying out the activity and the authorised officer reasonably believes that the matter or thing results from a contravention of the requirement to obtain a consent or a contravention of a consent. Subclause (2) provides that on the request of an authorised officer under subclause (1), a person must not refuse or fail to stop an activity or remove the matter or thing. The penalty for breach of this provision is 20 penalty units. Clause 79 sets out when an authorised officer must produce identification. Subclause (1) provides that, subject to subclause (2), an authorised officer must produce the officer's identification for inspection on request when exercising a power under this Part. 45

 


 

Subclause (2) provides that an authorised officer is not required to produce the officer's identification if the request is unreasonable in the circumstances. Subclause (3) defines identification, in relation to an authorised officer, as a document that-- • sets out the name of the authorised officer; and • contains a photograph of the authorised officer; and • indicates the fact that the person named in the document is authorised; and • is in a form approved by the Secretary. The requirement to produce identification is consistent with contemporary enforcement practices and enables members of the public to be sure that the person is authorised. Part 10--General Part 10 of the Bill contains clause 80 which sets out the requirements for regulations made under the Bill. Clause 80 subclause (1) provides that the Governor in Council may make regulations for or with respect to the following-- • prescribing consents; • prescribing conditions on a class or type of consent; • prescribing exemptions from the requirement to obtain a consent; • any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. Subclause (2) details what the regulations may contain-- • may be of general or limited application; and • may differ according to differences in time, place or circumstance; and • may confer a power or impose a duty on a specified person or class of persons; and 46

 


 

• may apply, adopt or incorporate any matter contained in any document whether-- • wholly or partially or as amended by the regulations; or • as in force at a particular time or as amended from time to time; • may leave anything (including consents or consent conditions) for the approval or satisfaction of a specified person or class of persons; and • may leave any matter or thing to be, from time to time, determined, applied, dispensed with or regulated by the Minister or the Secretary; and • may provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations whether unconditionally or on specified conditions and either wholly or to such an extent as is specified; and • may impose penalties not exceeding 20 penalty units for a contravention of the regulations. Part 11--Repeal, savings and transitional provisions and amendment of other Acts Part 11 of the Bill contains clauses 81 to 100. These clauses make consequential amendments to various Acts as a result of the repeal of the Coastal Management Act and the provisions of the Bill. Division 1--Repeal of the Coastal Management Act 1995 Division 1 provides for the repeal of the Coastal Management Act 1995. Clause 81 repeals the Coastal Management Act 1995. The repeal does not affect any matter or thing or the previous operation of the Act (see section 14(2) of the Interpretation of Legislation Act 1984). 47

 


 

Division 2--Savings and transitional provisions Division 2 provides for the savings and transitional provisions. Clause 82 provides for the definitions used in Division 2. These are-- Coastal Action Plan means a Coastal Action Plan endorsed under the old Act; commencement day means the day on which clause 81 comes into operation; old Act means the Coastal Management Act 1995; Victorian Coastal Strategy means a Victorian Coastal Strategy endorsed under the old Act. Clause 83 provides for the parts of the former Victorian Coastal Strategy to be taken to be a Marine and Coastal Policy and a Marine and Coastal Strategy. Subclause (1) provides that on the commencement day (see definition for commencement day above), the "policy for decision-making" part of a Victorian Coastal Strategy that is in effect immediately before that day is taken to be a Marine and Coastal Policy made under the Bill. Subclause (2) provides that on the commencement day, the "actions" part of a Victorian Coastal Strategy that is in effect immediately before that day is taken to be a Marine and Coastal Strategy made under the Bill. This provision ensures that at the commencement of the Bill the former Victorian Coastal Strategy applies until the first Policy and Strategy can be made. Clause 84 provides that on the commencement day, a consent to use or develop coastal Crown land under section 40 of the old Act (see clause 82 for definition of old Act) that is in effect immediately before that day is taken to be a consent to use or develop or undertake works on marine and coastal Crown land under clause 70 of the Bill. This provision ensures any consent given under the Coastal Management Act 1995 continues in force after this Act is repealed and such a consent is considered to be a consent under the Bill. 48

 


 

Clause 85 provides that on and after the commencement day, a Coastal Action Plan that is in effect immediately before that day is taken to be a product made under a regional and strategic partnership until the earlier of-- • the revocation of the Coastal Action Plan; or • the passing of 10 years after the coming into operation of the Bill; or • the specification by a product prepared under a regional and strategic partnership that the application of the product is intended to substitute the application of the Coastal Action Plan. The clause goes on to provide that clauses 51(1)(g), 59(1)(g), 69(e) and 76(1)(c) of the Bill apply to a Coastal Action Plan as if references in those clauses to a "product made under a regional and strategic partnership" were references to a "Coastal Action Plan". The clause also provides for references to a "Regional Coastal Board" to be read as references to the Secretary and provides for publication of notice of the revocation in the Government Gazette. Division 3--Amendment of other Acts Division 3 provides for consequential amendments to other Acts resulting from the Bill. Clause 86 amends section 24 of the Catchment and Land Protection Act 1994 by inserting new subsections (4) and (5) that provide, respectively-- • a Catchment Management Authority, in preparing a regional catchment strategy, to have regard to the Marine and Coastal Policy and the Marine and Coastal Strategy if the region to which the strategy applies abuts the coast; and • in section 24 Marine and Coastal Policy and Marine and Coastal Strategy have the same meaning as in the Bill. Clause 87 amends Schedule 1 to the Climate Change Act 2017 by-- • substituting Coastal Management Act 1995 in Column 1 with Marine and Coastal Act 2017; and 49

 


 

• in Column 2 substituting the following-- • Consideration by the Minister of a draft Coastal Strategy under section 17. • The endorsement by the Minister of a Coastal Action Plan under section 26. with-- • Consideration by the Minister of a Marine and Coastal Policy under Division 1 of Part 4. • Consideration by the Minister of a Marine and Coastal Strategy under Division 2 of Part 4. The amendments contained in this clause result in the Minister having to consider the following matters when preparing the Marine and Coastal Policy and Marine and Coastal Strategy-- • the potential impacts of climate change; and • the potential contribution to the State's greenhouse gas emissions; and • any guidelines issued by the Minister under section 18 of the Climate Change Act 2017. Clause 88 amends section 8 of the Commissioner for Environmental Sustainability Act 2003 to insert new paragraph (da) after the existing paragraph (d) that provides for the Commissioner for Environmental Sustainability to prepare and make a State of the Marine and Coastal Environment Report if requested by the Minister under clause 37(3) of the Bill. Clause 89 amends the Conservation, Forests and Lands Act 1987 (the CFL Act). Subclause (1) amends section 3 of the CFL Act to insert new definitions of coastal and marine management plan and marine and coastal Crown land which have the same meaning as in the Bill. Subclause (2) amends section 11(3A) by substituting Coastal Management Act 1995 with Marine and Coastal Act 2017 which will enable the Minister to delegate powers under the Bill to Parks Victoria or an employee of Parks Victoria for the purpose of the performance or exercise by Parks Victoria or an employee of Parks Victoria of that power, function or duty 50

 


 

in the course of carrying out duties under any agreement or arrangement relating to the management of Crown land by Parks Victoria. Subclause (3) inserts a new subsection (5) into section 82PA that provides-- • The Traditional Owner Land Management Board must ensure that a plan, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. New section 82PA(5) requires a Traditional Owner Land Management Board, when preparing a management plan under the CFL Act over land to which the Board is appointed (appointed land), to have regard to a coastal and marine management plan where these lands overlap. Subclause (4) inserts a new subsection (7) after section 82PB(6) of the CFL Act that provides-- • If appointed land under the plan is part of land to which a coastal and marine management plan applies, the management plan for that land must be consistent with that coastal and marine management plan. The new section 82PB(7) of the CFL Act requires a management plan prepared for appointed land under the CFL Act to be consistent with a coastal and marine management plan prepared under the Bill where these lands overlap. Subclause (5) amends Schedule 1 of the CFL Act to-- • omit "Coastal Management Act 1995"; and • insert "Marine and Coastal Act 2017" after "Land Conservation (Vehicle Control) Act 1972". The amendment contained in subclause (5) will provide for the Marine and Coastal Act 2017 to be a relevant law for the purposes of the CFL Act. This, in part, will enable authorised officers to be appointed under section 83 of the CFL Act for the purposes of the Bill and will allow offences under the Bill to be prescribed as infringement offences. 51

 


 

Clause 90 amends the Crown Land (Reserves) Act 1978 (the CLR Act). Subclause (1) amends section 3 of the CLR Act to-- • repeal the definition of coastal Crown land; • insert the following definitions-- • Marine and Coastal Council has the same meaning as Council has in the Marine and Coastal Act 2017; • marine and coastal Crown land which means-- • any land which is reserved either temporarily or permanently under this Act; and • which is marine and coastal Crown land within the meaning of the Marine and Coastal Act 2017. Subclause (2) amends section 4(3) of CLR Act by substituting "Victorian Coastal Council" with "Marine and Coastal Council" meaning that before either of the following things happen, the Minister must obtain and consider a report of the new Marine and Coastal Council-- • any land is temporarily or permanently reserved under section 4(1) of the CLR Act for the protection of the coastline; • the Governor in Council declares any land to be permanently reserved for the protection of the coastline under section 4(6) of the CLR Act. Subclause (3) amends paragraphs (i) and (ii) of section 15(1)(c) of the CLR Act by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Clause 91 amends the Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016. Subclause (1) amends the definition of relevant land Ministers in section 3 of the above Act by substituting "Coastal Management Act 1995" (wherever occurring) with "Marine and Coastal Act 2017". 52

 


 

Subclause (2) amends the definition of relevant law in paragraph (a) of section 42(7) of the above Act by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Clause 92 amends the Major Sporting Events Act 2009 by substituting section 96 with-- 96 Marine and Coastal Act 2017 Despite anything to the contrary in the Marine and Coastal Act 2017, a consent is not required under that Act for the development or use of, or the undertaking of, an event venue or event area if an Acts non-application order specifies that the Act does not apply. The substitution of section 96 ensures that consent requirements of the Bill will not to apply where a non-application order under section 15 of the Major Sporting Events Act 2009 specifies that the Marine and Coastal Act 2017 does not apply. Presently section 96 applies to consents under Coastal Management Act 1995. Clause 93 amends Schedule 1 to the Major Transport Projects Facilitation Act 2009 by-- • substituting Coastal Management Act 1995 in Column 1 with Marine and Coastal Act 2017; and • in Column 2 substituting the following-- • Consent under section 40(1). • Consent under section 37. with-- • consent given in a coastal and marine management plan under section 62; • a consent given under section 70; • a prescribed consent. The amendments contained in this clause mean that consents under the Bill replace consents under the Coastal Management Act 1995 as an applicable law decision under the Major Transport Projects Facilitation Act 2009. 53

 


 

Clause 94 amends the National Parks Act 1975 (the NP Act). Subclause (1) amends section 3(1) of the NP Act to insert the definitions for coastal and marine management plan, marine and coastal Crown land and Marine and Coastal Strategy which have the same meaning as in the Bill. Subclause (2) inserts a new subsection (5) after section 17(4) of the NP Act that provides-- • On and after the preparation of a Marine and Coastal Strategy, the Secretary must ensure that a management plan, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. Subclause (3) inserts a new subsection (3) after section 17B(2) of the NP Act that provides-- • On and after the preparation of a Marine and Coastal Strategy, the Secretary must ensure that a management plan, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. Subclause (4) inserts a new subsection (5) after section 17D(4) of the NP Act that provides-- • On and after the preparation of a Marine and Coastal Strategy, the Secretary must ensure that a management plan, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. Subclause (5) inserts a new subsection (4) after section 18(3) of the NP Act that provides-- • On and after the preparation of a Marine and Coastal Strategy, the Secretary must ensure that a management plan, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. 54

 


 

Subclauses (2) to (5) require that management plans prepared for national parks and state parks (under section 17), wilderness parks (under section 17B), marine national parks and marine sanctuaries (under section 17D), and other parks (under section 18) must have regard to any coastal and marine management plan where these parks overlap with marine and coastal Crown land. Subclause (6) amends section 40B(1) of the NP Act, by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Clause 95 amends section in section 64(3)(b) of the Offshore Petroleum and Greenhouse Gas Storage Act 2010 by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Clause 96 amends the Planning and Environment Act 1987. Subclause (1) amends section 61(3)(a) of the Planning and Environment Act, by substituting "coastal Crown land within the meaning of the Coastal Management Act 1995" with "marine and coastal Crown land within the meaning of the Marine and Coastal Act 2017". Subclause (2) amends the heading to section 82AA of the Planning and Environment Act, by substituting "coastal Crown land" substitute "marine and coastal Crown land". Subclause (3) amends section 82AA of the Planning and Environment Act, by substituting "coastal Crown land within the meaning of the Coastal Management Act 1995" with "marine and coastal Crown land within the meaning of the Marine and Coastal Act 2017". Clause 97 amends the Port Management Act 1995. Subclause (1) amends the definition of coastal vested land in section 3(1) of the Port Management Act by substituting "coastal Crown land within the meaning of the Coastal Management Act 1995" (wherever occurring) with "marine and coastal Crown land within the meaning of the Marine and Coastal Act 2017". Subclause (2) amends section 44A(5)(a)(ii) of the Port Management Act, by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". 55

 


 

Subclause (3) amends the definition of authorised person in section 83 of the Port Management Act, by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Subclause (4) amends the definition of relevant Ministers in section 91A of the Port Management Act by substituting "Coastal Management Act 1995" with "Marine and Coastal Act 2017". Clause 98 amends the Traditional Owner Settlement Act 2010 (TOS Act). Subclause (1) amends section 27(1) of the TOS Act by substituting paragraph (f) of the definition of public land authorisation with "a consent within the meaning of the Marine and Coastal Act 2017". Subclause (2) amends section 28(o) of the TOS Act by substituting "management plan under section 30 of the Coastal Management Act 1995" with "coastal and marine management plan under Division 1 of Part 7 of the Marine and Coastal Act 2017". Subclause (3) amends section 29(k) of the TOS Act by substituting "management plan under section 30 of the Coastal Management Act 1995" with "coastal and marine management plan under Division 1 of Part 7 of the Marine and Coastal Act 2017". Clause 99 amends the Wildlife Act 1975 by inserting new subsections (6) and (7) after section 18(5), that respectively provide-- • On and after the preparation of a Marine and Coastal Strategy, the Secretary must ensure that a plan of management, to the extent that the plan applies to marine and coastal Crown land, is prepared having regard to the requirements for preparing a coastal and marine management plan. • In this section-- • coastal and marine management plan has the same meaning as in the Marine and Coastal Act 2017; 56

 


 

• Marine and Coastal Strategy has the same meaning as in the Marine and Coastal Act 2017; • marine and coastal Crown land has the same meaning as in the Marine and Coastal Act 2017. Clause 100 provides for the repeal of the amending Division on 1 October 2019. The repeal of the Division does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 57

 


 

 


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