Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017 [2018] AUSStaCSBSD 17 (7 February 2018)

• Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017
• Retrospective application 190

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Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017

Purpose	This bill seeks to amend the Great Barrier Reef Marine Park Act 1975 to implement a new governance arrangements for the Great Barrier Reef Marine Park Authority
Portfolio	Environment and Energy
Introduced	Senate on 6 December 2017

Retrospective application ^[190]

1.259 Part 1 of Schedule 2 to the bill seeks to amend the Great Barrier Reef Marine Park Act 1975 (GBRMP Act) to provide that zoning plans, and plans of management, may provide in relation to a matter by providing that the regulations, or other legislative instruments, provide in relation to that matter. That part also seeks to amend the GBRMP Act to provide that zoning plans or plans of management may provide in relation to any matter in relation to which the regulations may provide.

1.260 The explanatory memorandum states that the changes proposed by Part 1 of Schedule 2 to the bill are directed at 'clarifying the relationship between zoning plans, plans of management and regulations made under the GBRMP Act; or other legislative instruments'.^[191] These amendments appear to seek to address a technical defect in instruments currently made under the GBRMP Act. However, the explanatory materials do not explain the nature of that defect or the consequences that may follow from it, only stating that it addresses 'what may have been a technical defect associated with the prescription of conduct in Marine Park legislation'.^[192] The explanatory materials also indicate that proceedings have commenced in the High Court relating to the operation of the legislation as it currently stands, but no detail is provided about the nature of the proceedings.^[193]

1.261 Part 1 of Schedule 2 to the bill also contains application and transitional provisions which provide that the amendments in Part 1 of Schedule 2 apply in relation to any zoning plans, plan of management or regulations made before or after commencement. As such, these amendments have retrospective application. Item 8 also provides that an instrument made under the GBRMP Act before the commencement of this bill, and anything done under such an instrument, is taken to have been valid. Item 9 also provides that the rights and liabilities of all persons are declared to be, and always to have been, the same as if instruments made under the GBRMP Act as currently in force, had always been valid.

1.262 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.263 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.264 The explanatory memorandum explains that the retrospective application of the amendments preserve the effect of actions previously taken under the existing legislation, and ensure the application of instruments made under the GBRMP Act in the past and in the future is the same, 'so that persons are not disadvantaged by any potential for inconsistent application of the existing framework'.^[194] The explanatory memorandum also states that the retrospective application of the amendments 'will not adversely impact on persons due to the inclusion of a "historic shipwrecks" clause', which provides that the Commonwealth is required to pay reasonable compensation to any person whose property may be acquired otherwise than on just terms.^[195]

1.265 However, while the explanatory materials give some justification as to why the retrospective application is necessary, the committee notes that the information provided lacks specificity.

1.266 The committee therefore requests the minister's advice as to:

• the nature of the technical defect with the zoning plans, plans of management and regulations currently made under the Great Barrier Reef Marine Park Act 1975;

• the issues arising for decision in the High Court litigation; and

• whether any person or persons may suffer detriment from the retrospective application of the legislation,^[196] and if so, the extent of that detriment.

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[190] Schedule 2, Part 2. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[191] Explanatory memorandum, p. 18.

[192] Statement of compatibility, p. 6.

[193] Explanatory memorandum p. 22.

[194] Explanatory memorandum, p. 20.

[195] Explanatory memorandum p. 20.

[196] The committee notes that subitem 9(3) provides that proceedings already commenced in the High Court will not be affected.