Commonwealth Numbered Regulations - Explanatory Statements

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GREAT BARRIER REEF MARINE PARK AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 255 OF 2011)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2011 No. 255

 

Issued by the Authority of the Minister for Sustainability,
Environment, Water,
Population and Communities

 

Great Barrier Reef Marine Park Act 1975

 

Great Barrier Reef Marine Park Amendment Regulations 2011 (No. 1)

 

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.

The Act establishes the Great Barrier Reef Marine Park Authority (the Authority) and makes provision for and in relation to the establishment, control, care and development of a Marine Park in the Great Barrier Reef Region.

The Regulations amend the Great Barrier Reef Marine Park Regulations 1983 (the Principal Regulations) to provide additional protection to dugong following recent unsustainable levels of dugong mortalities in the Bowling Green Bay area of the Great Barrier Reef Marine Park (the Marine Park).

Issues

There have been at least 7 deaths since July 2010 in this area (3 confirmed, 4 unconfirmed) that are understood to be associated with incidental capture in fishing nets.  The Queensland dugong population is currently under additional pressures due to extreme weather impacts on their critical seagrass habitats and food resources, and this has resulted in additional fatalities.

The dugong is protected under the Environment Protection and Biodiversity Conservation Act 1999 as both a listed 'migratory species' and a listed 'marine species' and 'vulnerable' under schedule 3 of Queensland's Nature Conservation (Wildlife) Regulation 2006. The dugong is also listed as a 'protected species' in the Marine Park under the Principal Regulations.

The area within which the Regulations will apply is within the existing Special Management Area called the 'Bowling Green Bay Species Conservation (Dugong Protection) SMA' as declared under subregulation 46(5) of the Principal Regulations. The Regulations will further restrict netting to minimise as far as possible the number of dugong deaths from incidental capture in fishing nets in this area.

Netting rules for other areas within Bowling Green Bay will remain unchanged, and netting activities in these other areas will continue to be restricted or prohibited in accordance with existing legislation.

The Regulations will provide that the area within this Special Management Area be divided into two areas where the activity of netting will have special restrictions imposed to give greater protection to dugong.  In the northern 'No netting (other than bait netting) area within Bowling Green Bay Species Conservation (Dugong Protection) SMA', no netting activities will be allowed, other than bait netting. In the southern 'Restricted netting area within Bowling Green Bay Species Conservation (Dugong Protection) SMA', limited lower-risk netting activities will be allowed.

These restrictions will reduce the risks to dugong from large mesh nets, while allowing for lower risk netting activities to continue, including restricted forms of large mesh nets. There will be no changes to other fishing activities in the area, including no changes to bait netting activities in the area.

The Regulations will also correct a reference in subregulation 3(1) to a repealed regulation and correct a typographical error in subregulation 47(4) of the Principal Regulations.

The Regulations have been prepared in consultation with the Department of Sustainability, Environment, Water, Population and Communities, Fisheries Queensland  (a service of the Department of Employment, Economic Development and Innovation), the Queensland Boating and Fisheries Patrol, the Queensland Seafood Industry Association, the Queensland Department of Environment and Resource Management and Queensland Parks and Wildlife Service in April - May 2011.  The outcomes are that the amendments are supported by these organisations as an ongoing measure to protect dugong. Consultation has also taken place with the local fishers who work in the area affected by the amendments through discussions with representatives in April -June 2011.   This consultation has greatly assisted with minimising the impacts on fishing activities in the area while still providing for increased protection for dugong. 

The restrictions that will apply to netting activities in the area reflect best practice netting standards being developed through a Fisheries Research and Development Corporation research project and associated consultation with the local fishing community.

The Regulations are outlined in more detail in the Attachment.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.


ATTACHMENT

 

Details of the proposed Great Barrier Reef Marine Park Amendment Regulations 2011 (No. 1)

Regulation 1 - Name of Regulations

This regulation provides that the title of the Regulations is the Great Barrier Reef Marine Park Amendment Regulations 2011 (No. 1).

Regulation 2 - Commencement

This regulation provides for the Regulations to commence on the day after they are registered.

Regulation 3 - Amendment of the Great Barrier Reef Marine Park Regulations 1983

This regulation provides that the Principal Regulations are amended as set out in Schedule 1.

Schedule 1 - Amendments

Item [1] Subregulation 3(1), definition of authority

Item 1 inserts a new definition for the meaning of the term 'authority' for regulation 47. The meaning of the term 'authority' that is currently contained in subregulation 3(1) continues to apply elsewhere in the Principal Regulations and is updated to mean 'an authority given under regulation 88ZF' rather than 'an authority given under regulation 104'. Regulation 104 was repealed and replaced by regulation 88ZF in 2009 by the Great Barrier Reef Marine Park Amendment Regulations 2009 (No. 1).

Item [2] Subregulation 3(1), after the definition of Queensland fisheries legislation

Item 2 inserts a definition for the term 'SMA' to clarify that it is an acronym of Special Management Area. 

Item [3] Regulation 26

Item 3 amends the limitations prescribed by regulation 26 in relation to netting by rewording paragraphs 26(1)(a) and (b) and by inserting new paragraphs 26(1)(c), (d), (e) and (f). These new paragraphs are read in conjunction with regulation 47 and support amendments to regulation 47 (see items 4 - 8 below).  

Minor amendments are made to the wording of the chapeau of subregulation 26(1) and paragraph 26(1)(a) however, these amendments do not impact upon the operation of those provisions. The expression in the chapeau is changed from singular to plural and the words 'the following' are included in the chapeau to enable the conjunctions between the paragraphs to be removed. A formatting error in paragraph 26(1)(b) is also corrected and that paragraph is revised to make it easier for the reader to follow.    

Paragraph 26(1)(c) makes it clear that netting must not be carried out in the area described in Table 47.3 in subregulation 47(5) subject to an exception created by subregulation 26(2) for 'bait netting', which is still allowed to be carried out in the area.

Paragraphs 26(1)(d), (e) and (f) make it clear that the only kinds of nets that are allowed to be used in the area described in Table 47.4 in subregulation 47(9) are set mesh nets and mesh nets used in accordance with the limitations set out in subregulations 47(7) and (9). These restrictions are subject to an exception created by subregulation 26(2) for bait netting, which is still allowed to be carried out in the area.

Subregulation 26(3) is amended to include definitions for 'mesh net' and 'set mesh net' as prescribed by Part 2 of Schedule 11 of Queensland's Fisheries Regulation 2008 (the Fisheries Regulation).       

Item [4] Subregulation 47(1), before the definition of commercial fisher

Item 4 inserts a definition for 'bait netting' into subregulation 47(1). For the purposes of the Principal Regulations, bait netting has the meaning given by the Great Barrier Reef Marine Park Zoning Plan 2003 (the Zoning Plan) and the insertion of the definition into subregulation 47(1) acts as a signpost to inform readers as to where they should look in order to find the definition.

Item [5] Subregulation 47(1), after the definition of commercial fisher

Item 5 inserts definitions for the terms 'fix', 'haul', 'mesh net' and 'mesh size' into subregulation 47(1) as prescribed by Part 2 of Schedule 11 of the Fisheries Regulation.

For the purposes of the Principal Regulations, 'netting' has the meaning given by the Zoning Plan. Item 5 inserts the definition of netting into this section to act as a signpost to inform readers where to find the definition.

 Item 5 also inserts a new definition of 'lead core rope', meaning a rope which, during manufacture, incorporates lead along the full length of the rope. This definition operates in conjunction with subparagraph 47(7)(a)(i) and paragraph 47(9)(d) to impose restrictions on the use of nets and types of nets that may be used (see Item 8 below).   

Item [6] Subregulation 47(2)

Item 6 inserts a heading 'Special Management Provision - Species Conservation (Dugong Protection) SMA ' for subregulations 47(2A) and (2) and substitutes the old subregulation 47(2) with new subregulations 47(2A) and (2), which essentially split the old subregulation 47(2) into two subregulations with some changes. Subregulation 47(2A) clarifies that subregulation 47(2) specifies special management provisions that apply to a Species Conservation (Dugong Protection) SMA for subsection 4.2.3(2) of the Zoning Plan, subject to subregulations 47(4), (5), (7) and (9).

The special management provisions contained in old subregulation 47(2) were subject to the restrictions set out in the old subregulation 47(4). Subregulation 47(2A) now makes the special management provisions contained in subregulation 47(2) subject to additional restrictions that are set out in subregulations 47(5), (7) and (9) (see Item 8 below) and maintains the existing restrictions contained in subregulation 47(4).  

Item [7] Subregulation 47(4), except Table 47.2

Item 7 inserts a heading 'Conditions of set mesh net use in offshore waters - Table 47.2 area' for subregulation 47(4). Minor amendments have been made to existing subregulation 47(4) by correcting typographical errors. The word 'no' in existing paragraph 47(4)(a) has been substituted with 'not' and the reference to section '120' of the Fisheries Regulation in paragraph 47(4)(b) has been changed to the correct section, which is '121'.

Item 7 also inserts a note beneath subregulation 47(4) to alert readers to the relevant offence and civil penalty provisions that apply to a person who engages in conduct that contravenes subregulation 47(4).    

Item [8] Subregulation 47(4), after Table 47.2 

Item 8 inserts a heading 'No netting (other than bait netting) - Table 47.3 area' for subregulation 47(5) and inserts subregulations 47(5), (6), (7), (8) and (9), which provide additional protection to dugong from netting in the areas described in Table 47.3 in subregulation 47(5) and Table 47.4 in subregulation 47(9).

Subregulation 47(5) operates in conjunction with paragraph 26(1)(c) to prohibit netting (other than bait netting, which is considered to pose lower risk to dugong) in the 'No netting (other than bait netting) area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' described in Table 47.3 in subregulation 47(5). Additionally, the insertion of Note 2 in subregulation 47(5) directs readers to the appropriate section of the Principal Regulations dealing with the use of nets for bait netting.

Further, subregulation 47(5) contains a note (Note 1) alerting readers to paragraph 2.3.3(g) of the Zoning Plan, which has the effect of allowing equipment that is normally used for fishing or collecting, such as nets, to be brought into the area described in Table 47.3 in subregulation 47(5), provided that such equipment is stowed or secured. This would apply to nets other than nets used for bait netting in the 'No netting (other than bait netting) area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' described in Table 47.3 in subregulation 47(5).  

Subregulation 47(5) also contains a note (Note 3) to alert readers to the relevant offence and civil penalty provisions that would apply to a person who engages in conduct that contravenes subregulation 47(5).   

Table 47.3 is at the end of subregulation 47(5) and contains the geographic co-ordinates for the 'No netting (other than bait netting) area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' referred to in paragraph 47(1)(c) and subregulation 47(5). Table 47.3 forms part of subregulation 47(5).

A heading, 'Conditions of set mesh use - Table 47.4 area', has been inserted for subregulations 47(6) and (7). Subregulation 47(6) clarifies that a 'set mesh net' is a form of 'mesh net' and a note has been inserted at the end of proposed subregulation 47(6) alerting readers to the fact that the Fisheries Regulation describes the ways in which a mesh net can be used, including as a set mesh net.

Subregulation 47(7) contains the conditions for using a set mesh net in the area described in Table 47.4 in subregulation 47(9). These conditions assist in reducing the risks to dugong posed by large set mesh nets in the 'Restricted netting area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' described in Table 47.4 in subregulation 47(9).

Subparagraph 47(7)(a)(i) operates in conjunction with the definition of lead core rope, which is contained in subregulation 47(1) (see Item 5 above).  Subparagraph 47(7)(a)(i) imposes a condition that a set mesh net must be weighed down only with a continuous lead core rope that has a diameter between 6 to 8mm. The use of a lead core rope instead of lead weights on a rope to weigh down a set mesh net is intended to reduce the risk of entanglement when dugong interact with the nets. The specified range of diameters for the lead core rope is appropriate for the tidal conditions and wave action in the area.

Subparagraph 47(7)(a)(ii) imposes a condition that set mesh nets must be used in accordance with paragraphs 120A(c) to (f) of the Fisheries Regulation. Those paragraphs provide that the entire net must be used in nearshore waters while it is being used, the distance between the first and last net must be no more than 1km, the nets must be no more than 800m apart and any person using the net must be between the first and last net and no more than 800m from any of the nets.

Paragraph 47(7)(b) imposes a condition that, under each authority that allows netting in the area, the number of set mesh nets being used in the area must not be more than 3. Paragraph 47(7)(b) is read in conjunction with the definition of authority contained in paragraph 3(1)(a) (see Item 1 above). A note has been inserted at the end of paragraph 47(7)(e) draws this fact to the attention of readers. The condition in paragraph 47(7)(b) applies so that, where an authority allows netting to be carried out in the area described in Table 47.4 in subregulation 47(9), no more than 3 set mesh nets can be used in that area under the authority.

Paragraph 47(7)(c) provides that each set mesh net must not be longer than 120m. This has the effect of reducing the total net length that is currently allowed by 240m.

Paragraph 47(7)(d) provides that the mesh size of a set mesh net must be between 100 to 215mm.

Paragraph 47(7)(e) has the effect of restricting the depth of the net (commonly referred to as a net's "drop") to 16 meshes in circumstances where the mesh size is between 150 to 215mm.  A further note has been inserted at the end of paragraph 47(7)(e) to alert readers to the relevant offence and civil penalty provisions that apply to a person who engages in conduct that contravenes subregulation 47(7).

Item 8 inserts a heading 'Conditions of mesh net use - Table 47.4 area' for subregulations 47(8) and (9). Subregulation 47(8) provides that paragraphs 47(9)(a) to (e) do not apply to a set mesh net used in accordance with subregulation 47(7). Because a set mesh net is one of the ways a mesh net may be used, subregulation 47(8) is necessary to prevent a potential inconsistency between subregulations 47(7) and 47(9). A note has been inserted after subregulation 47(8) alerting readers to the fact that the Fisheries Regulation describes the ways in which a mesh net can be used, including as a set mesh net.

Subregulation 47(9) contains the conditions for using a mesh net (other than a set mesh net used in accordance with subregulation 47(7)) in the 'Restricted netting area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' described in Table 47.4 in subregulation 47(9). These conditions assist in reducing the risks to dugong posed by large mesh nets, while allowing for lower risk netting activities to continue.

Paragraph 47(9)(a) provides that a mesh net must not be fixed or hauled. This paragraph is read in conjunction with the definitions of 'fix' and 'haul', which are contained in subregulation 47(1).

Paragraph 47(9)(b) provides that a mesh net must not be longer than 120m. This has the effect of reducing the total net length that is currently allowed by 280m.

Paragraph 47(9)(c) provides that the mesh size of a mesh net must be between 50 to 115mm.

Paragraph 47(9)(d) operates in conjunction with the definition of lead core rope, which is contained in subregulation 47(1), to impose a condition that a mesh net must be weighed down only with a continuous lead core rope that has a diameter between 6 to 8mm. The use of a lead core rope instead of lead weights on a rope to weigh down mesh nets is intended to reduce the risk of entanglement if dugong interact with the nets. The specified range of diameters for the lead core rope is appropriate for the tidal conditions and wave action in the area.

Paragraph 47(9)(e) contains a condition that a mesh net must be used in accordance with subsection 472(7) of the Fisheries Regulation. Subsection 472(7) of the Fisheries Regulation currently provides that, unless it is otherwise stated in Chapter 9, Part 2 of the Fisheries Regulation, a person using a mesh net must remain on a boat floating on the water within 100m of the net unless the person is setting or retrieving the net. There are currently no exceptions to this requirement contained in Chapter 9, Part 2 of the Fisheries Regulation that are relevant to netting activities in the area.  

A note has been inserted after proposed paragraph 47(9)(e) to alert readers to the relevant offence and civil penalty provisions that apply to a person who has contravened subregulation 47(9).

Table 47.4 has been inserted at the end of subregulation 47(9) and contains the geographic co-ordinates for the 'Restricted netting area within Bowling Green Bay Species Conservation (Dugong Protection) SMA' referred to in paragraphs 47(1)(d) - (f) and subregulations 47(7) and (9). Table 47.4 forms part of subregulation 47(9).

   


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