Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2004 (NO. 3) 2004 NO. 60

Subsection 66(1) of the Great Barrier Reef Marine Park Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act or with a zoning plan, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Other relevant regulation-making powers are set out in Attachment A.

The purpose of the Regulations is to support the Hinchinbrook Plan of Management 2004 and the Great Barrier Reef Marine Park Amendment Act 2004.

The purpose of Schedule 1 to the Regulations is to support the Hinchinbrook Plan of Management 2004 (the Plan) which is due to come into effect on

15 April 2004, namely to:

•       give effect to the enforcement provisions contained in Part 2 of the Plan;

•       establish a system whereby a holder of a relevant permission for the conduct of a tourist program in the Hinchinbrook Planning Area can apply to the Great Barrier Reef Marine Park Authority (the Authority) for an authorisation to continue to operate in the Planning Area at the same level of access as the operator had before the Plan commenced;

•       introduce an infringement notice offence for a contravention of Part 2 of the Plan; and

•       make other minor amendments to reflect the above.

Schedule 1 also:

•       makes minor amendments to regulations 112 and 116 of the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) to specify the date that Part 2 of the Cairns Area Plan of Management 1998 (as amended by the Cairns Area Plan of Management Amendment 2002 (No. 1)) and Part 2 of the Whitsundays Plan of Management 1998 (as amended by the Whitsundays Plan of Management Amendment 2002 (No. 1)), respectively commenced; and

•       makes minor amendments to regulation 113 and regulation 117 of the Principal Regulations to insert an additional defence for a prosecution for a contravention of Part 2 of the Cairns Area Plan of Management 1998 (as amended) and Part 2 of the Whitsundays Plan of Management 1998 (as amended), respectively.

The purpose of Schedule 2 to the Regulations is to support the Great Barrier Reef Marine Park Amendment Act 2004 (the Amendment Act), namely to:

•       prescribe, for the purposes of subsection 39B(1) of the Act (as amended by the Amendment Act), whether the person who is the holder of the chargeable permission or the visitor is liable to pay the Environmental Management Charge (charge) as set out in Part 9 of the Principal Regulations;

•       specify, for the purposes of subsection 39E(3) of the Act (as amended by the Amendment Act), when charge is due and payable for visitors and holders of chargeable permissions;

•       specify, for the purposes of section 39FE of the Act (as amended by the Amendment Act), when a collected amount is due and payable;

•       make provision for the custody of collected amounts, the banking of collected amounts, the keeping of accounts in relation to collected amounts and the application of interest, or other amounts, derived from the custody or banking of collected amounts for the purposes of section 39PA of the Act (as amended by the Amendment Act); and

•       make other minor consequential amendments to support the Amendment Act.

Schedule 3 to the Regulations renumbers certain provisions of the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4) to reflect the renumbering of the Principal Regulations as provided by the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 2).

Details of the Regulations are set out in Attachment B.

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

Regulations 1 to 3 and Schedule 1 commence on the date of their notification in the Gazette. Schedule 2 of the Regulations commence on the commencement of Schedule 1 of the Great Barrier Reef Marine Park Amendment Act 2004 (which is expected to be on or about 20 April 2004). Regulation 4 and Schedule 3 of the Regulations commence on 2 July 2004.

Attachment A

Subsection 66(2) of the Great Barrier Reef Marine Park Act 1975 (the Act) provides that, without limiting the generality of subsection 66(1) of the Act, regulations may be made:

•       providing for giving effect to the enforcement provisions of a plan of management or to the enforcement provisions of an amendment of a plan of management (paragraph 66(2)(ba));

•       providing for fees and charges to be imposed by the Great Barrier Reef Marine Park Authority (the Authority) upon persons using services or facilities provided by the Authority in or in connection with the Great Barrier Reef Marine Park ("the Marine Park") (paragraph 66(2)(k));

•       providing for the imposition and collection of charges for the mooring of vessels, the landing of aircraft, or the use of vessels in the Marine Park (paragraph 66(2)(l));

•       enabling a person who is alleged to have contravened a provision of the regulations to pay to the Authority, as an alternative to prosecution, a stated penalty that is not more than one-fifth of the maximum penalty payable by which a contravention of that provision is otherwise punishable (paragraph 66(2)(n));

•       providing for the grant or issue of licences, permissions, permits and authorities, the conditions subject to which they are granted or issued and the charging of fees by the Authority in respect of such licences, permissions, permits and authorities (paragraph 66(2)(u)); and

•       providing for any matter incidental to or connected with any of the foregoing (paragraph 66(2)(v)).

Attachment B

Details of the Regulations are as follows:

Regulation 1 provides that the name of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 3).

Regulation 2 provides that regulations 1 to 3 and Schedule 1 of the Regulations commence on the date of their notification in the Gazette. Schedule 2 of the Regulations commence on the commencement of Schedule 1 to the Great Barrier Reef Marine Park Amendment Act 2004. Regulation 4 and Schedule 3 commence on 2 July 2004.

Regulation 3 provides that Schedules 1 and 2 amend the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations).

Regulation 4 provides that Schedule 3 amends the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4).

Schedule 1 - Amendments commencing on gazettal

Amendment 1 inserts a definition of the Hinchinbrook Planning Area into subregulation 4(1) of the Principal Regulations. The Hinchinbrook Planning Area has the same definition as in the Hinchinbrook Plan of Management 2004 (the Plan) and encompasses the area described in Schedule 1 to the Plan.

Amendment 2 inserts a new subregulation (2A) into regulation 4 of the Principal Regulations. New subregulation 4(2A) clarifies that a reference to the Plan in the Principal Regulations is a reference to that Plan as in force at the commencement of this subregulation.

Amendment 3 substitutes paragraph 24(b) of the Principal Regulations and inserts a new paragraph 24(c) into the Principal Regulations.

New paragraph 24(b) inserts the date that regulation 116 of the Principal Regulations commenced; namely, 27 October 1999.

Paragraph 24(b) currently refers to a "relevant permission in force immediately before the day regulation 116 commences". As regulation 116 of the Principal Regulations commenced on 27 October 1999, it is now considered appropriate to refer to that date for the purposes of clarity.

New paragraph 24(c) clarifies that Division 2 of Part 4 of the Principal Regulations sets out how to apply for an authorisation to do something in the Hinchinbrook Planning Area that is permitted by a relevant permission in force immediately before the day on which regulation 117C commences, but is not permitted by a provision of the Plan together with new regulation 117D (offence provisions relating to the Plan are inserted by Item 13 - see below).

Amendment 4 inserts new subregulations 25(4A) and (4B) into the Principal Regulations after subregulation 25(4).

New subregulation 25(4A) provides that the holder of an existing permission may apply to the Authority for an authorisation to do a thing in the Hinchinbrook Planning Area if the holder of the existing permission can satisfy certain criteria. These criteria include:

(a)       but for clause 2.5, 2.6, 2.9 or 2.18 of the Plan and new regulation 117D, the existing permission would authorise the holder to do the thing in the Area; and

(b)       the existing permission authorises the holder to do the thing in the Area on more than 50 days in each year.

This criteria is consistent with clause 1.34 of the Plan which outlines the eligibility criteria and exemptions for certain types of tourism operations in the Hinchinbrook Planning Area.

New subregulation 25(4B) inserts a definition of existing permission which has the same meaning as in the Plan for the purposes of new subregulation 25(4A). The Plan defines an existing permission as a relevant permission in force immediately before the commencing day of the Plan.

Amendment 5 omits the reference to "subregulation (1) or (3)" from subregulation 25(5) of the Principal Regulations and replaces it with a reference to "subregulation (1), (3) or (4A)". The purpose of this amendment is to clarify that only the holder of an existing permission can apply for an authorisation for the Cairns Planning Area, the Whitsundays Planning Area, and the Hinchinbrook Planning Area.

Amendment 6 omits the reference to "The application:" for "An application for an authorisation:" in subregulation 25(6) of the Principal Regulations. This amendment is of a technical nature only.

Amendment 7 substitutes subregulation 28(3) of the Principal Regulations for a new subregulation 28(3). The purpose of this amendment is to clarify that the Authority must not grant an authorisation applied for after a certain date in the Cairns Planning Area, the Whitsundays Planning Area or the Hinchinbrook Planning Area, unless special circumstances exist.

Amendment 8 replaces the reference to "the day on which this regulation commences" in subregulation 112(1) of the Principal Regulations with a reference to "7 June 2002". As Part 2 of the Cairns Area Plan of Management 1998 (as amended by the Cairns Area Plan of Management Amendment 2002 (No. 1)) commenced on 7 June 2002, it is considered appropriate to refer to that date for the purposes of clarity.

Amendment 9 replaces the reference to "the day specified by the Authority in a notice published in the Gazette for the purposes of this subregulation" in subregulation 112(2) of the Principal Regulations with a reference to "17 October 2002". As clause 2.25 of the Cairns Area Plan of Management 1998 (as amended by the Cairns Area Plan of Management Amendment 2002 (No. 1)) commenced on 17 October 2002 (being the date that the notice was published in the Gazette), it is considered appropriate to refer to that date for the purposes of clarity.

Amendment 10 substitutes subregulation 113(3) of the Principal Regulations with a new subregulation (3).

The purpose of this amendment is to provide a further defence to a prosecution of a person who contravenes Part 2 of the Cairns Area Plan of Management 1998 (as amended by the Cairns Area Plan of Management Amendment 2002 (No. 1)). It is a defence to a prosecution if the person is acting in accordance with an authorisation, or a relevant permission granted on or after 27 October 1999 (this being the date on which Part 2 (other than clause 2.25 of this Plan) of the Cairns Area Plan of Management 1998 (as amended) took effect for the purposes of regulation 113 of the Principal Regulations), or as permitted by subregulation 29(3) of the Principal Regulations.

Amendment 11 replaces the reference to "the day on which this regulation commences" in regulation 116 of the Principal Regulations with a reference to "7 June 2002". As Part 2 of the Whitsundays Plan of Management 1998 (as amended by the Whitsundays Plan of Management Amendment 2002 (No. 1)) commenced on 7 June 2002, it is considered appropriate to refer to that date for the purposes of clarity.

Amendment 12 substitutes subregulation 117 (3) of the Principal Regulations with a new subregulation (3).

The purpose of this amendment is to provide a further defence to a prosecution of a person who contravenes Part 2 of the Whitsundays Plan of Management 1998 (as amended by the Whitsundays Plan of Management Amendment 2002 (No. 1)). It is a defence to a prosecution if the person is acting in accordance with an authorisation or a new permission (defined in the Whitsundays Plan of Management 1998 (as amended) as a relevant permission granted after the commencing day), or as permitted by subregulation 29(3) of the Principal Regulations.

Amendment 13 inserts a new Part 12A (Hinchinbrook Plan of Management 2004 - enforcement provisions) into the Principal Regulations and inserts new regulations 117B, 117C and 117D as follows:

New Regulation 117B (Definition)

New regulation 117B inserts a definition of Plan into the Principal Regulations for the purposes of new Part 12A.

New Regulation 117C (Date of effect of enforcement provisions of Plan)

Subsection 39ZF(2) of the Act provides that the enforcement provisions of a plan of management come into force on the day as from which regulations made under paragraph 66(2)(ba) of the Act declare that those provisions take effect.

For the purposes of subsection 39ZF(2) of the Act, new regulation 117C declares that Part 2 of the Plan takes effect on the day on which this regulation commences.

New Regulation 117D (Offences)

New subregulation 117D(1) makes it an offence for a person, other than the Authority acting in accordance with its functions and powers, to contravene a provision of Part 2 of the Plan. The maximum penalty for a contravention of this offence is 50 penalty units.

New subregulation 117D(2) clarifies that an offence against subregulation (1) (other than an offence constituted by a contravention of subclause 2.15(1) of the Plan) is an offence of strict liability.

Subclause 2.15(1) of the Plan provides that "a person must not damage coral". Because a contravention of subclause 2.15(1) of the Plan is not an offence of strict liability, the prosecution is required to establish the fault elements of the offence.

Although a contravention of Part 2 (other than a contravention of subclause 2.15(1)) of the Plan is a strict liability offence, the defence of mistake of fact pursuant to section 9.2 of the Criminal Code is still available. In addition, the following new subregulation provides additional defences to a prosecution under new subregulation 117D(1).

New subregulation 117D(3) provides a defence to a prosecution for an offence against new subregulation 117D(1) if the person is acting in accordance with an authorisation or a new permission granted after the eligibility process commencement day, or as permitted by subregulation 29(3) of the Principal Regulations.

New subregulation 117D(4) defines new permission and eligibility process commencement day as having the same meanings given by the Plan for the purposes of subparagraph 117D(3)(a)(ii). New permission is defined in the Plan as a relevant permission granted on or after the commencing day, and eligibility process commencement day is defined in the Plan as the day specified by the Authority in a notice published in the Gazette as the day on which the eligibility process commences.

New regulation 117D is consistent with regulations 113 and 117 of the Principal Regulations. Those regulations create similar offences for a contravention of Part 2 of the Cairns Area Plan of Management 1998 (as amended) and Part 2 of the Whitsundays Plan of Management 1998 (as amended), respectively.

Amendment 14 inserts a reference to new subregulation 117D(1) into Schedule 10 to the Principal Regulations. The effect of this amendment is to make a contravention of Part 2 of the Plan an infringement notice offence. This amendment also specifies, for the purposes of regulation 122D, the infringement notice penalty that a contravention of Part 2 of the Plan will attract. Consistent with the infringement notice offences for the Cairns Area Plan of Management 1998 (as amended) and the Whitsundays Plan of Management 1998 (as amended), the infringement notice penalty is 3 penalty units.

Schedule 2 - Amendments commencing on the commencement of Schedule 1 to the Great Barrier Reef Marine Park Amendment Act 2004

Amendments 1, 2, 3, 4 and 5 substitutes paragraphs 10(4)(k), 18(4)(k), 27(c), 32D(5)(k), 34(l) and 52(3)(a) and (b) of the Principal Regulations with new paragraphs 10(4)(k), 10(4)(ka), 18(4)(k), 18(4)(ka), 27(c), 27(d), 32D(5)(k), 32D(5)(ka), 34(l), 34(la), 52(3)(a) and 52(3)(b).

In addition to the environmental management charge (charge), the Act, (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) makes provision for "collected amounts" and "penalty amounts", as well as imposing a late payment penalty on any outstanding charge, collected amounts and penalty amounts.

The effect of new paragraphs 10(4)(k), 10(4)(ka), 18(4)(k), 18(4)(ka), 27(c), 27(d), 32D(5)(k), 32D(5)(ka), 34(l), 34(la), 52(3)(a) and 52(3)(b) is to specify additional matters that the Authority must take into account when considering an application for a relevant permission in respect of the Far Northern, Cairns, Central, Mackay/Capricorn, and Gumoo Woojabuddee Sections of the Great Barrier Reef Marine Park ("the Marine Park"), an application for a permission in respect of an unzoned area of the Marine Park, an application for an authorisation in the Cairns Planning Area, the Hinchinbrook Planning Area and the Whitsundays Planning Area, and an application for approval for the transfer of a chargeable permission.

Amendment 6 substitutes regulation 57 of the Principal Regulations with a new regulation 57.

The purpose of new regulation 57 is to allow the Authority to suspend a chargeable permission in certain circumstances. These circumstances include:

(a)       if, at the end of the month in which charge is payable in relation to the permission by the holder of the chargeable permission, the charge has not been fully paid;

(b)       charge that is payable in relation to the permission by a visitor has not been collected by the holder of the chargeable permission;

(c)        if, at the end of the month in which a collected amount is payable in relation to the chargeable permission, the collected amount has not been fully paid;

(d)       a penalty amount that is payable in relation to the chargeable permission has not been paid in accordance with subsection 39FA(3) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004);

(e)       an amount of late payment penalty that would be payable in relation to the permission had not been paid; and

(f)       if, at the end of the month in which a return in relation to the chargeable permission is to be given to the Authority under subregulation 107(1) or (2) of the Principal Regulations, the return has not been given to the Authority.

Amendment 7 substitutes the definition of visitor in subregulation 74(1) of the Principal Regulations with a revised definition. Under the revised definition, every person who is provided a service under a chargeable permission is taken to be a visitor, unless the person is prescribed as a person who is not taken to be a visitor.

Amendment 8 substitutes paragraphs 76(3)(b) and (c) of the Principal Regulations with new paragraphs 76(3)(b) and (c).

Amendment 11 specifies, for the purposes of subsection 39B(1) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004), that the visitor is liable to pay the standard tourist program charge. As a consequence of this shift in liability from the holder of the chargeable permission to the visitor, consequential amendments are required to paragraphs 76(3)(b) and 76(3)(c) to reflect that it is the visitor who is liable to pay the standard tourist program charge.

Amendment 9 omits the reference to "regulation 118" in paragraph 77(2)(b) of the Principal Regulations and replaces it with a reference to "regulation 120". This amendment is of a technical nature only to correct an incorrect reference to regulation 118.

Amendment 10 omits regulation 79 from the Principal Regulations. As the amendment to the definition of visitor (see Amendment 7) encompasses the classes of persons who are not to be taken to be a visitor, this regulation is no longer be required.

Amendment 11 substitutes regulations 82 and 83 of the Principal Regulations and replaces them with new regulations 82 and 83.

Subsection 39B(1) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) provides that if a chargeable permission is granted or transferred to a person, then whomever of the following persons is prescribed by the regulations is liable to pay a charge on the grant or transfer:

(a) the person who is the holder of the chargeable permission;

(b) a visitor who is provided a service by the holder of the chargeable permission under the permission.

New subregulation 82(1) imposes the liability for payment of the standard tourist program charge on each visitor who takes part in a tourist program provided under a chargeable permission that is, or includes, a primary service.

New subregulation 82(2) provides that the standard tourist program charge is payable by a visitor for each day, or part of a day, that the visitor takes part in the tourist program.

New subregulation 83(1) provides an exemption whereby a visitor does not have to pay the standard tourist program charge. The exemption applies when the visitor takes part in a tourist program on a day and, on the same day, the visitor has used a service for which the full amount of the standard tourist program charge is payable by the visitor, and the visitor or the holder of the chargeable permission who provided the first service, have evidence (in the form of a dated receipt or dated ticket) that the visitor has paid the charge.

New subregulation 83(2) provides additional exemptions whereby a visitor who takes part in a tourist program provided under a chargeable permission on a day will not have to pay the standard tourist program charge in certain specified circumstances.

Amendment 12 substitutes subregulation 84(2) (except the penalty) of the Principal Regulations with a new subregulation (2). New subregulation 84(2) specifies that a person must not use as evidence, for the purposes of subregulation 83(1), a receipt or ticket that the person knows, or has reason to believe, has been altered (including altered by adding a date). The maximum penalty for contravention of this offence is 50 penalty units.

Amendment 13 omits the reference to "regulation 83" in paragraph 84(3)(b) of the Principal Regulations and replaces it with a reference to "subregulation 83(1)". This amendment is of a technical nature only and is required as a consequence of Amendment 11.

Amendment 14 omits the reference to "for a visitor who participates" in regulations 85 and 86 of the Principal Regulations and inserts a reference to "by a visitor who takes part". The purpose of this amendment is to clarify that it is the visitor who is liable to pay the standard tourist program charge for longer tours (regulation 85) and very short tours (regulation 86).

Amendment 15 omits the reference to "for a visitor who participates" in subregulations 87(2) and (3) of the Principal Regulations and inserts a reference to "by a visitor who takes part". The purpose of this amendment is to clarify that it is the visitor who is liable to pay the standard tourist program charge for tours that either enter the Marine Park after 5pm on the first day (subregulation 87(2)) or leave the Marine Park before 6am on the last day of the tour (subregulation 87(3)).

Amendment 16 substitutes regulation 88 of the Principal Regulations and replaces it with a new regulation 88.

Subsection 39E(1) of the Act provides that charge is due and payable at such time as is ascertained in accordance with the regulations. Subsection 39E(3) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) states that the regulations may provide that charge is due and payable at different times for visitors and holders of chargeable permissions.

New regulation 88 specifies when the standard tourist program charge is payable by a visitor who takes part in a tourist program provided under a chargeable permission. The standard tourist program charge is payable by the visitor to the holder of the permission on behalf of the Commonwealth.

Amendment 17 omits regulation 89 from the Principal Regulations. Regulation 89 currently specifies when the standard tourist program charge is payable. As regulation 88 (inserted by Amendment 16) specifies when the charge is payable, regulation 89 is no longer required.

Amendments 18, 22, 24, 26, 28 and 30 inserts a reference to "to the Authority on behalf of the Commonwealth" after "holder of the permission" in subregulations 90(3), 91(4), 92(2), 95(3), 96(3), 97(3), 100(3), 102(2) and 103(2) of the Principal Regulations.

Section 39DA of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) provides that charge payable by a holder of a chargeable permission is payable to the Authority on behalf of the Commonwealth.

This amendment clarifies that the holder of the chargeable permission is liable to pay the non-motorised beach equipment charge, the dinghy charge, the motorised water sports charge, the pontoon charge, the floating hotel charge, the charge for the construction and operation of a marina, the discharge of sewage charge, the vending operations charge, and the mariculture charge to the Authority on behalf of the Commonwealth.

Amendment 19 substitutes regulations 93 and 94 of the Principal Regulations with new regulations 93 and 94.

Subject to new subregulations 93(2) and (3), new subregulation 93(1) imposes the liability on the visitor to pay the semi-submersible and glass-bottomed boat charge, and specifies that the charge payable by each visitor who takes part in a semi-submersible, or glass-bottomed, boat excursion provided under a chargeable permission is $0.40 for each excursion.

New subregulation 93(2) clarifies that, if a visitor participates in more than one excursion on the same day, and all the excursions are provided under the same chargeable permission, the charge is only be payable by the visitor for the first excursion.

New subregulation 93(3) specifies the circumstance when the charge for semi-submersible, or glass bottomed, boat excursions is not payable by a visitor. This circumstance is if the excursion is permitted under a permission to which new regulation 82 applies, and the visitor is liable to pay the standard tourist program charge in accordance with new regulation 82.

New subregulation 93(4) specifies that the charge for a semi-submersible, or glass bottomed, boat excursion is payable by a visitor to the holder of the chargeable permission on behalf of the Commonwealth on the day that the visitor participates in the excursion.

Subject to new subregulations 94(2) and (4), new subregulation 94(1) imposes the liability on the visitor to pay the sight-seeing aircraft charge and specifies that the charge payable by each visitor who participates in an aircraft excursion in or into the Marine Park, that is provided under a chargeable permission for the sole purposes of sight-seeing, is $0.40 for each excursion.

New subregulation 94(2) clarifies that, if a visitor participates in more than one excursion on the same day, and all the excursions are provided under the same chargeable permission, the charge is only payable by the visitor for the first excursion.

New subregulation 94(3) specifies the circumstance when the charge for an aircraft excursion in or into the Marine Park for the sole purpose of sight-seeing is not payable by a visitor. This circumstance is if the excursion is permitted under a chargeable permission to which new regulation 82 applies, and the visitor is liable to pay the standard tourist program charge in accordance with new regulation 82.

New subregulation 94(4) specifies that the charge for an aircraft excursion in or into the Marine Park for the sole purpose of sight-seeing is payable by a visitor to the holder of the chargeable permission on behalf of the Commonwealth on the day that the visitor participates in the excursion.

Amendment 20 substitutes subregulation 95(1) of the Principal Regulations with a new subregulation 95(1).

The purpose of new subregulation 95(1) is to impose the liability on the holder of the chargeable permission to pay the pontoon charge as specified. The effect of this amendment is to remove the calculation based on the number of visitors to determine the charge for the operation of a pontoon.

Amendment 21 omits subregulation 95(2) from the Principal Regulations.

Subregulation 95(2) specifies how visitors are to be counted for the purposes of subregulation 95(1). As Amendment 20 substitutes subregulation 95(1) of the Principal Regulations with a new subregulation 95(1), which would result in the charge for the operation of a pontoon no longer being calculated based on the number of visitors, subregulation 95(2) is no longer required.

Amendment 23 substitutes subregulation 96(1) of the Principal Regulations with a new subregulation 96(1).

New subregulation 96(1) imposes the liability on the holder of the chargeable permission to pay the floating hotel charge. This amendment also provides that the charge payable by the holder of the chargeable permission for the operation of a floating hotel is $280.00 per quarter.

Amendment 25 substitutes subregulation 97(2) of the Principal Regulations with a new subregulation 97(2).

New subregulation 97(2) imposes the liability on the holder of the chargeable permission to pay the charge for the operation of a marina. This amendment also provides that the charge payable by the holder of the chargeable permission for the operation of a marina is $380.00 per quarter.

Amendment 27 substitutes regulation 98 and 99 of the Principal Regulations with new regulations 98 and 99.

New subregulation 98(1) imposes the liability on the holder of a chargeable permission to pay the charge for the operation of an underwater observatory. This amendment also provides that the charge payable by the holder of a chargeable permission for the operation of an underwater observatory that is not attached to a pontoon is $130.00 per quarter.

New subregulation 98(2) specifies that the charge payable by the holder of the chargeable permission for the operation of an underwater observatory that is not attached to a pontoon is payable to the Authority on behalf of the Commonwealth in April, July, October and January in respect of the exercise of the permission in the preceding quarter.

Subject to new subregulation 99(2), new subregulation 99(1) imposes the liablity on the visitor to pay the Lady Elliot Island charge. This amendment also provides that the charge payable by each visitor who participates in a tourist program provided under a chargeable permission and involves visiting Lady Elliot Island is $2.00 for each day, or part of a day, that the visitor visits the island.

New subregulation 99(2) specifies the circumstance in which the charge for visiting Lady Elliot Island is not payable by a visitor. This circumstance is if the visit is permitted under a chargeable permission to which new regulation 82 applies, and the visitor is liable to pay the standard tourist program charge in accordance with new regulation 82.

New subregulation 99(3) specifies when the charge for a visit to the island is payable by the visitor to the holder of the chargeable permission on behalf of the Commonwealth.

Amendment 29 substitutes regulation 101 of the Principal Regulations with a new regulation 101.

New subregulation 101(1) imposes the liablity on the visitor to pay the vessel chartering charge. This amendment also provides that if a charter of a vessel is provided under a chargeable permission for a commercial purpose unrelated to tourism, the charge of $2.00 is payable by each visitor (other than a crew member) who is carried on the chartered vessel.

New subregulation 101(2) specifies that the charge for the charter of a vessel for a commercial purpose unrelated to tourism is payable by a visitor to the holder of the chargeable permission on behalf of the Commonwealth on the first day that the visitor is carried on the vessel.

Amendment 31 inserts a new Subdivision 3 (Payment and overpayment) into Part 9 of the Principal Regulations and inserts new regulation 103A as follows:

New Regulation 103A - When collected amounts are payable

Section 39AA of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) defines collected amount as an amount that is collected by a holder of a chargeable permission from a visitor on account of charge payable by the visitor.

Section 39FE of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) provides that a collected amount is due and payable at such times as is ascertained in accordance with the regulations.

New regulation 103A specifies, for the purposes of section 39FE of the Act, that a collected amount in respect of a chargeable permission is payable by the holder of the permission to the Authority on behalf of the Commonwealth in whichever of April, July, October or January is the month after the quarter in which the amount is collected.

This amendment also inserts a note at the end of new regulation 103A which clarifies that a holder of a chargeable permission who does not collect charge as required by subsection 39FA(1) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) is liable to pay a penalty amount equal to the amount of the charge. The note also clarifies that the penalty amount is due for payment at the time when, if the charge had become a collected amount, the holder would have to pay the collected amount.

Amendment 32 substitutes the heading to regulation 104 of the Principal Regulations with a new heading, "Payment of charge on termination or transfer of permission".

Amendment 33 substitutes subregulation 104(1) of the Principal Regulations with a new subregulation 104(1).

New subregulation 104(1) specifies when charge, collected amounts, and late payment penalty are payable to the Authority on behalf of the Commonwealth if a chargeable permission ceases to be in force.

Amendment 34 substitutes subregulation 104(3) of the Principal Regulations with a new subregulation 104(3).

New subregulation 104(3) specifies when charge, collected amounts, and late payment penalty are payable to the Authority on behalf of the Commonwealth in the event that the holder of the chargeable permission transfers his or her interest in the chargeable permission to another person.

Amendment 35 omits the reference to "subregulation (3)" in subregulation 104(4) of the Principal Regulations and replaces it with a reference to "paragraph (3)(a)".

This amendment is of a technical nature only, and is required to reflect Amendment 34.

Amendment 36 omits the reference to "subregulation." in subregulation 104(4) of the Principal Regulations and replaces it with a reference to "paragraph.".

This amendment is of a technical nature only and is required as a consequence of Amendment 35.

Amendment 37 inserts a note at the foot of subregulation 104(4) of the Principal Regulations. The note clarifies that a holder of a chargeable permission who does not collect charge as required by subsection 39FA(1) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) is liable to pay a penalty amount equal to the amount of the charge. The note also clarifies that the penalty amount is due for payment at the time when, if the charge had become a collected amount, the holder would have to pay the collected amount.

Amendment 38 substitutes the heading to regulation 105 of the Principal Regulations and replaces it with a new heading "Overpayment of charge by holder of chargeable permission".

Amendment 39 substitutes subregulation 106(1) (except the penalty) of the Principal Regulations with a new subregulation 106(1).

This amendment revises subregulation 106(1) to reflect the provisions of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) which requires holders of chargeable permissions to collect, on behalf of the Commonwealth, charge paid by visitors. This amendment also requires a holder of a chargeable permission to record information relating to the charge payable by the holder for the quarter and the charge that the holder was required to collect during the quarter.

Amendment 40 inserts a new regulation 107A after regulation 107 of the Principal Regulations.

Subsection 39PA(1) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) provides that regulations may make provision for and in relation to:

(a) the custody of collected amounts; and

(b) the banking of collected amounts; and

(c) the keeping of accounts in relation to collected amounts; and

(d) the application of interest, or other amounts, derived from the custody or banking of collected amounts.

Subsection 39PA(2) of the Act (as amended by the Great Barrier Reef Marine Park Amendment Act 2004) provides that, without limiting paragraph (1)(d), regulations made for the purpose of that paragraph may prescribe that interest, or other amounts, derived from the custody or banking of collected amounts be paid to the holder of a chargeable permission who was required to collect those collected amounts.

New subregulation 107A(1) allows the holder of a chargeable permission to deposit a collected amount into an account, maintained by the holder with a bank, until the amount is due for payment to the Authority on behalf of the Commonwealth.

New subregulation 107A(2) specifies that if a collected amount is deposited in accordance with new subregulation 107A(1), the holder of the chargeable permission is entitled to any interest derived from the deposit of the amount.

New subregulation 107A(3) defines bank for the purpose of new regulation 107A.

Amendment 41 replaces the references to "holder of a permission" and "permission holder" in various provisions of the Principal Regulations with references to "holder of a chargeable permission" and "holder of the permission", respectively. These amendments are of a technical nature only to ensure consistency between terms used in the Principal Regulations and terms used in the Act.

Schedule 3 - Amendment of Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4)

Amendment 1 omits the number, and inserts the number of the provision following the re-numbering of the Principal Regulations (as provided for in Schedule 2 to the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 2)) in Schedule 2, items [1] to [4] to the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4). This is a technical amendment to ensure accurate cross-referencing.

Amendment 2 omits the reference to "73(4)" in the subregulation numbered 45A(4) in Schedule 2, item [4] to the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4), and replaces it with the reference to the number of the provision after the re-numbering of the Principal Regulations (as provided for in Schedule 2 to the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 2)). This is a technical amendment to ensure accurate cross-referencing.