Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 95 (28 March 2018)

• Chapter 2
• Commentary on ministerial responses
• Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017
• Retrospective application2

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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
Bill status	Received Royal Assent on 5 March 2018

2.2 The committee dealt with this bill in Scrutiny Digest No. 1 of 2018. The minister responded to the committee's comments in a letter received 27 March 2018. Set out below are extracts from the committee's initial scrutiny of the bill and the minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[1]

Retrospective application^[2]

Initial scrutiny – extract

2.3 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.

2.4 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'.^[3] 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'.^[4] 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.^[5]

2.5 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.

2.6 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.

2.7 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.

2.8 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'.^[6] 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.^[7]

2.9 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.

2.10 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,^[8] and if so, the extent of that detriment.

Minister's response

2.11 The minister advised:

1. 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 Act)
The amendments now clearly allow for zoning plans and plans of management to refer to and rely on content in regulations and other legislative instruments. The amendments have been made retrospective to ensure the validity of the legislation underpinning the Act is clear.
2. The issues arising for decision in the High Court Litigation
There is no High Court litigation currently on foot and I am not aware of any other legal proceedings which would be affected by the amendments made by the Bill. The Bill includes provisions to ensure that it does not affect rights or liabilities of parties to proceedings for which leave to appeal to the High Court has been given before commencement date of the application and transitional provisions. These provisions are consistent with the current treatment in other Bills of this nature to preserve the rights of parties to existing litigation, regardless of whether such litigation is on foot.
3. Whether there any person or persons who may suffer detriment from the retrospective application of the legislation, and if so, the extent of that detriment
The retrospective application of the Bill will ensure that persons do not suffer detriment to the extent that they have previously relied on the validity of the current and past Marine Park legislation. In the highly unlikely event that a person would suffer detriment because of the retrospective operation of the Bill, the Bill contains a provision guaranteeing compensation to the extent that the retrospective application of the Bill would result in an acquisition of a person's property otherwise than on just terms.

Committee comment

2.12 The committee thanks the minister for this response. The committee notes the minister's advice that there is no High Court litigation currently on foot and that he is not aware of any other legal proceedings that would be affected by the amendments made by the bill.

2.13 The committee also notes the minister's advice that the retrospective application of certain provisions in the bill will ensure that persons do not suffer any detriment to the extent that they have previously relied on current and past marine park legislation. Finally, the committee notes the minister's advice that, in the 'highly unlikely' event that a person does suffer detriment due to the retrospective application of these provisions, the bill contains a provision guaranteeing compensation to the extent that the person's property has been acquired otherwise than on just terms.

2.14 In light of the information provided and the fact that this bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

2.1

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[1] See correspondence relating to Scrutiny Digest No. 4 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

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

[3] Explanatory memorandum, p. 18.

[4] Statement of compatibility, p. 6.

[5] Explanatory memorandum p. 22.

[6] Explanatory memorandum, p. 20.

[7] Explanatory memorandum p. 20.

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