Part 3 Regulation of activities in marine parks
Division 1 Regulations for the management, protection and conservation of marine parks
15 Regulations relating to marine parks generally
The regulations may make provision for or with respect to the management, protection and conservation of marine parks.
17 Other regulations for marine parks
Without affecting the generality of section 15, the regulations may make provision for or with respect to the following matters:(a) regulating the use and enjoyment of marine parks,(b) regulating or prohibiting the carrying out of activities (including commercial activities) within marine parks either generally or in relation to particular marine parks or by reference to different zones within a marine park,(c) regulating or prohibiting the taking of animals, plants or materials from or into marine parks and the possession of animals, plants or materials that have been taken from marine parks,(d) regulating or prohibiting the entry into a marine park (or part of a marine park) of all persons or any class of persons,(e) removing from marine parks trespassers, persons causing annoyance or inconvenience or persons committing offences,(f) regulating navigation and use of vessels within marine parks, or closing a marine park or part of a marine park to vessels,(g) regulating where vessels may be moored or anchored within marine parks,(h) protecting cultural heritage within marine parks,(i) prescribing fees payable in respect of the use of a marine park or the carrying out of any activity within a marine park,(j) regulating or prohibiting the use of aircraft over or within marine parks.
17A Offences against management regulations
A person is guilty of an offence if the person contravenes a provision of the regulations referred to in this Division or Division 1A, being a contravention that is designated by the regulations as a serious offence.Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 500 penalty units.
17B Regulations relating to zoning plans for marine parks
(1) Without affecting the generality of Division 1, the regulations may make provision for or with respect to the use and management of a marine park by means of a zoning plan set out in the regulations.(2) A zoning plan may include provisions for or with respect to the following:(a) the classification of areas within a marine park (for example as sanctuary zones, habitat protection zones and general use zones),(b) the uses that are permitted or prohibited within such areas,(c) the management of such areas.(3) The relevant Ministers must not recommend the making of regulations that establish, replace or amend a zoning plan unless the relevant Ministers are satisfied that the provisions of this Division have been complied with in the making of the regulations.(4) Failure to comply with any provision of this Division (other than subsection (5)) does not affect the validity of a regulation establishing, replacing or amending a zoning plan.(5) A regulation that alters the area of an existing sanctuary zone within a marine park, or that classifies an area within a marine park as a new sanctuary zone, may not be made during the moratorium period.(6) In this section:existing sanctuary zone means an area classified as a sanctuary zone by a zoning plan for a marine park that was in force immediately before the commencement of the Marine Parks Amendment (Moratorium) Act 2011.
new sanctuary zone means an area of a marine park classified as a zone (of whatever name) by a zoning plan for the marine park if the zoning plan prohibits within that zone the same or substantially the same activities as were prohibited immediately before the commencement of the Marine Parks Amendment (Moratorium) Act 2011 within a sanctuary zone for that marine park.
17C Making zoning plans for marine parks
(1) The Authority, in consultation with the advisory committee for a marine park, is to cause a draft zoning plan to be prepared within 12 months after the declaration of the marine park.(2) The Authority is to submit the draft zoning plan to the relevant Ministers together with any comments from the advisory committee for the marine park.(3) Within 3 months after receiving the draft zoning plan, the relevant Ministers are to:(a) cause public notice to be given of the draft zoning plan, or(b) refer the draft zoning plan back to the Authority for further consideration.(4) The notice is to:(a) specify the address of each place at which copies of the draft zoning plan are available, and(b) invite submissions to be made on the draft zoning plan before the date specified in the notice (being a date not less than 3 months after the date of the notice), and(c) specify the address to which submissions are to be forwarded.(5) The relevant Ministers are to consider:(a) any submissions made before the date referred to in subsection (4) (b), or such later date as the relevant Ministers allow, and(b) any comments from the advisory committee for the marine park.(6) Within 3 months after the date referred to in subsection (4) (b) the relevant Ministers are to:(a) submit a regulation to the Governor setting out the zoning plan for the marine park with such modifications, if any, as the relevant Ministers think fit, or(b) refer the draft zoning plan back to the Authority for further consideration.
17D Review of zoning plans for marine parks
(1) In this section, the review date for a zoning plan for a marine park is:(a) for the first review of the zoning plan—the date that is 5 years after the commencement of the first zoning plan made for the marine park, or(b) for the second or any subsequent review of the zoning plan—the date that is 10 years after the previous review date for the zoning plan.(2) The Authority is to conduct a review of the zoning plan for each marine park as soon as practicable after the review date for the zoning plan to determine whether the plan remains appropriate for securing the objects of this Act.(3) In conducting a review, the Authority is to prepare a review report that includes:(a) the assessment of existing arrangements for:(i) the conservation of natural and cultural heritage, and(ii) sustainable resource use, and(iii) the management of zones, and(b) any relevant findings and recommendations arising from the review, and(c) such other information arising from the review as the Authority considers appropriate.(4) The review report is to be referred to the advisory committee for the marine park concerned for comment.(5) A copy of the review report, including any comments from the advisory committee for the marine park, is to be given to the relevant Ministers no later than 12 months after the relevant review date for the plan.(6) Within 3 months after receiving a review report, the relevant Ministers are to direct the Authority to:(a) cause a draft zoning plan to be prepared to replace the zoning plan for the marine park, or(b) cause a draft zoning plan to be prepared to amend the zoning plan for the marine park, or(c) take such other action in relation to the marine park as specified by the relevant Ministers.
17E Amending zoning plans for marine parks
(1) The relevant Ministers may, at any time, recommend the making of a regulation to amend the zoning plan for a marine park.(2) Without limiting subsection (1), the relevant Ministers may recommend the making of a regulation to amend the zoning plan for a marine park as a consequence of any of the following:(a) the publication of a critical habitat declaration, threat abatement plan or recovery plan under the Threatened Species Conservation Act 1995,(b) the publication of a critical habitat declaration, threat abatement plan or recovery plan under the Fisheries Management Act 1994,(c) the making of any instrument under the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth in relation to species, ecological communities, places or activities that is relevant to the marine park,(d) the making of a proclamation under this Act varying the area of the marine park.(3) At the direction of the relevant Ministers, the Authority is, in consultation with the advisory committee for the marine park, to cause a draft zoning plan to be prepared to amend a zoning plan.(4) Section 17C (2)–(6) apply to the making of an amendment to the zoning plan for a marine park in the same way as they apply to the making of a zoning plan under that section unless the relevant Ministers are of the opinion that:(a) the amendment is to be made as a consequence of any event referred to in subsection (2) (a)–(c), or(b) the proposed amendment corrects a technical error or inconsistency.
17F Relationship with other plans of management
If an area within a marine park is subject to a plan of management under the National Parks and Wildlife Act 1974 or the Crown Lands Act 1989, the zoning plan for the marine park prevails over the plan of management to the extent of any inconsistency.
Division 2 Development and activities within marine parks
18 Mining in marine parks prohibited
(1) It is unlawful to prospect or mine for minerals in a marine park, except as expressly authorised by an Act of Parliament.(2) The Offshore Minerals Act 1999, the Mining Act 1992, the Petroleum (Onshore) Act 1991 and the Petroleum (Offshore) Act 1982 do not apply to or in respect of any area within a marine park.(3) This section does not apply to or in respect of any licence, permit, authorisation or lease in force under any of those Acts at the commencement of this section. However, no renewal or extension of such a licence, permit, authorisation or lease may be granted after that commencement except as expressly authorised by an Act of Parliament.(4) This section does not apply to or in respect of sand extraction within a marine park for conservation purposes or for the purpose of preventing the risk of serious injury to a person or harm to the environment that is carried out in accordance with a consent granted under this section and any other authorisation required under any other Act.(5) The relevant Ministers may grant consent (with or without conditions) to the carrying out of sand extraction within a marine park but only if satisfied that the sand extraction is for a purpose referred to in subsection (4).(6) In deciding whether to grant consent, the relevant Ministers must have regard to the assessment criteria (if any) prescribed by the regulations.
19 Development within marine park—application of EPA Act
(1) Before determining a development application under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development within a marine park, a consent authority must:(a) take into consideration:(i) the objects of this Act specified in section 3, and(ii) if there is a zoning plan for the marine park, the objects of the zone within which the area concerned is situated as specified in that zoning plan, and(iii) the permissible uses of the area concerned under the regulations, and(iv) any relevant marine park closures, and(b) if the consent authority intends to grant consent to the carrying out of the development, obtain the concurrence of the relevant Ministers to the granting of the consent.(2) A Minister who is a determining authority must not carry out, or grant approval to carry out, an activity (within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979) within a marine park unless the Minister has:(a) taken into consideration:(i) the objects of this Act specified in section 3, and(ii) if there is a zoning plan for the marine park, the objects of the zone within which the area concerned is situated as specified in that zoning plan, and(iii) the permissible uses of the area concerned under the regulations, and(iv) any relevant marine park closures, and(b) in the case of an activity for which an environmental impact statement is required to be prepared under Division 3 of that Part, consulted with the relevant Ministers on the carrying out of the activity or the granting of approval.(3) A determining authority (not being a Minister) must not carry out, or grant approval to carry out, an activity (within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979) unless the determining authority has:(a) taken into consideration:(i) the objects of this Act specified in section 3, and(ii) if there is a zoning plan for the marine park, the objects of the zone within which the area concerned is situated as specified in that zoning plan, and(iii) the permissible uses of the area concerned under the regulations, and(iv) any relevant marine park closures, and(b) in the case of an activity for which an environmental impact statement is required to be prepared under Division 3 of that Part, obtained the concurrence of the relevant Ministers to the carrying out of the activity or the granting of approval.(4) In deciding whether or not concurrence should be granted under this section, the relevant Ministers must take into consideration:(a) the objects of this Act specified in section 3, and(b) if there is a zoning plan for the marine park, the objects of the zone within which the area concerned is situated as specified in that zoning plan, and(c) the permissible uses of the area concerned under the regulations, and(d) any relevant marine park closures.(5) The provisions of section 79B (8)–(11) of the Environmental Planning and Assessment Act 1979, and the regulations under that Act, apply to and in respect of a requirement under this section to obtain the concurrence of the relevant Ministers in the same way as they apply to a requirement to obtain concurrence imposed on a consent authority by an environmental planning instrument under that Act.(6) For the purposes of applying those provisions, a reference in those provisions to the matters stated pursuant to section 30 (3) of the Environmental Planning and Assessment Act 1979 (however expressed) is to be read as a reference to the objects of this Act specified in section 3 and the permissible uses of the area concerned under the regulations.
20 Development affecting marine park—application of EPA Act
(1) In determining a development application under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development on land that is in the locality of a marine park, the consent authority must take into consideration the objects of this Act, the permissible uses of the area concerned under the regulations and any advice given to it by the Authority about the impact on the marine park of development in the locality.(2) If the consent authority is of the opinion that development proposed in the development application is likely to have an effect on the plants or animals within the marine park and their habitat, the consent authority must consult with the Authority before finally determining the application.(3) A determining authority must not carry out, or grant an approval to carry out, an activity on land that is in the locality of a marine park in purported compliance with Part 5 of the Environmental Planning and Assessment Act 1979 unless:(a) the determining authority has taken into consideration the objects of this Act, the regulations and any advice given to it by the Authority on the impact on the marine park of the carrying out of an activity in the locality, and(b) if the determining authority is of the opinion that the proposed activity is likely to have an effect on the plants or animals within the marine park or their habitat, the determining authority has consulted with the Authority.
Division 3 Marine park closures
20A Prohibition of activities in marine parks
(1) The relevant Ministers may from time to time, by notification, prohibit the carrying out of any specified activity (including the taking of fish) in a marine park or part of a marine park.(2) Any such prohibition is called a marine park closure.(3) A marine park closure:(a) may apply absolutely or subject to conditions, and(a1) without limiting paragraph (a), may prohibit the carrying out of an activity unless the consent of the Authority or a permit issued by the Authority has been obtained, and(b) must specify the activities that are prohibited and the area to which it applies, and(c) may only apply to the marine park specified in the notification, and(d) has effect despite any provision of the regulations.
20B Publication of notification of marine park closure
(1) The notification of a marine park closure is to be published:(a) in the Gazette, and(b) in a newspaper circulating, or by radio or television broadcast, in the area adjacent to the marine park to which the closure applies, and(c) by causing a copy of the notification to be exhibited in a prominent place or places adjacent to the marine park to which the closure applies.(2) However, if the relevant Ministers consider that the marine park closure is required urgently, they may publish the notification in accordance with subsection (1) (b) or (c) so long as they publish the notification in the Gazette as soon as practicable.
20C General provisions relating to marine park closures
(1) A marine park closure takes effect on the first publication of the notification or on a later date specified in the notification.(2) A marine park closure remains in force, subject to this Act, for the period (not exceeding 5 years) specified in the notification, but may be remade (with or without modification) by a further notification in accordance with this Division.
20D Amendment or revocation of closures
The relevant Ministers may from time to time amend or revoke a marine park closure by a further notification published in accordance with this Division.
20E General provisions relating to closures
Sections 42, 43 and 45 of the Interpretation Act 1987 apply to notifications of marine park closures in the same way as they apply to statutory rules within the meaning of that Act.Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising the adoption of other publications by reference, the making of differential closures, the amendment or repeal of closures and judicial notice and presumptions as to validity for closures.
20F Regulations relating to closures
The regulations may make provision for or with respect to giving effect to marine park closures or to any other matter relating to marine park closures.
(1) A person who carries out any activity in contravention of a marine park closure is guilty of an offence.Maximum penalty: In the case of a corporation, 1,000 penalty units or, in any other case, 200 penalty units or imprisonment for 6 months, or both.
(2) A person who is in possession of any animal, plant, rock, sand or other thing that has been taken in contravention of a marine park closure is guilty of an offence.Maximum penalty: In the case of a corporation, 500 penalty units or, in any other case, 100 penalty units or imprisonment for 3 months, or both.
(3) It is a defence to a prosecution for an offence under subsection (2) if the person charged satisfies the court that the person did not know and could not reasonably have known that the animal, plant, rock, sand or other thing had been taken in contravention of a provision of or made under this Act.
20H Removal of wrecked vessels and other property from marine parks
(1) In this section:person responsible, in respect of removable property, means:
(a) the person who caused the property to be in the marine park, or(b) if the person referred to in paragraph (a) is unknown or is unable to remove the property—the person who has control of the property, or(c) if the persons referred to in paragraphs (a) and (b) are unknown or are unable to remove the property—the owner of the property.removable property includes:
(a) any sunken or wrecked vessel, or(b) any abandoned property, or(c) anything unlawfully erected or placed.(2) The Authority may, by notice in writing, direct the person responsible for any removable property in a marine park to remove the property within such time as is specified in the notice. Any such person who fails, without reasonable excuse, to comply with the direction is guilty of an offence.Maximum penalty: In the case of a corporation, 1000 penalty units or, in any other case, 200 penalty units or imprisonment for 3 months, or both.
(3) The Authority may remove, or authorise the removal of, any removable property in such manner as the Authority thinks fit (whether or not the Authority has issued a direction for its removal under this section). The removable property may be removed by its destruction if it is reasonable to do so in the circumstances.(4) The Authority may, subject to and in accordance with the regulations, dispose of anything removed under this section.(4A) If, in the opinion of the Authority, significant environmental damage has been, or is likely to be, caused by removable property in a marine park, the Authority may take such steps as the Authority considers appropriate to do any or all of the following:(a) repair or remedy any damage to the environment caused by the property,(b) mitigate any damage to the environment caused by the property,(c) prevent any further damage to the environment by the property.(5) The Authority may recover as a debt in a court of competent jurisdiction the reasonable costs and expenses incurred by the Authority in the exercise of the Authority’s powers under this section from the person responsible for the removable property.(6) Except in the case of an emergency, the Authority must not give a direction for the removal of any removable property, or remove or authorise the removal of any removable property, that the Authority is of the opinion is likely to have significant cultural or ecological value unless the Authority:(a) has made an assessment of that cultural or ecological value, and(b) has forwarded a copy of that assessment to the relevant advisory committee at least 4 weeks before giving the direction or removing or authorising the removal of the removable property.
22 Relationship of Part with other legislation
(1) The requirements made by or under this Part are in addition to any requirement in any other Act or statutory instrument.(2) In particular, the Fisheries Management Act 1994 and the National Parks and Wildlife Act 1974 apply to any relevant area of a marine park.