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GREAT BARRIER REEF MARINE PARK (AQUACULTURE) REGULATIONS 2000 2000 NO. 6
EXPLANATORY STATEMENTSTATUTORY RULES 2000 No. 6
ISSUED BY AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT AND HERITAGE
Great Barrier Reef Marine Park Act 1975
Great Barrier Reef Marine Park (Aquaculture) Regulations 2000
Purpose of Regulations.
The purpose of these Regulations is to regulate the discharge of waste from aquaculture operations, which may affect animals and plants in the Great Barrier Reef Marine Park ("the Marine Park").
Background
The Federal Government wishes to ensure that any discharge of waste waters and other materials from aquaculture operations bordering the Marine Park is adequately regulated. The wastes from these activities flow into the Marine Park either directly or indirectly and may alter the water quality of the Marine Park or introduce organisms into the Marine Park or both. Even increases in the temperature of receiving waters can affect changes in the ecology of the receiving waters, promoting growth of organisms which might not normally survive in that environment. These cumulative and immediate changes can, if not adequately regulated, have direct and indirect effects on the animals and plants in the Marine Park, where the discharge enters the waters of the Marine Park or mixes with waters which are coextensive with the Marine Park.
Sub-section 66(1) of the Great Barrier Reef Marine Park Act 1975 provides for the making of regulations "regulating or prohibiting acts (whether in the Marine Park or elsewhere) that may pollute water in a manner harmful to animals and plants in the Marine Park". These Regulations apply to acts which, if not properly regulated, will pollute water in a manner harmful to animals and plants in the Marine Park.
Regulation Details
The Regulations establish a scheme of regulating the discharge of aquaculture waste into the Marine Park, waters adjacent to the Marine Park, and into any creek, river or other watercourse within a defined area which then discharges into the Marine Park. The scheme provides:
(i) for aquaculture operations of a limited size and nature (less than
1 hectare and which do not carry out hatchery or larval production
activities) to continue without further regulation under the proposed
Regulations; and
(ii) for aquaculture operations of an intermediate size and nature (greater than 1
hectare but less than 5 hectares and which do not carry out hatchery or
larval production activities) to continue operations subject to notification of
certain details to the Authority; and
(iii) that discharge of waste from aquaculture operations greater than
5 hectares or which carry out hatchery or larval production activities, will be
prohibited unless permission is first sought and obtained from the Great
Barrier Reef Marine Park Authority.
The Regulations provide that a permit is not required in relation to the discharge of waste from an aquaculture facility that was operating on 1 October 1999. A permit will be required for discharges from such a facility if (after 1 October 1999) the volume of waste discharged from the facility is significantly increased or the composition of such waste alters in a significant way (that is, a way that makes it significantly more damaging to animals or plants in the Marine Park).
The Regulations provide for the Authority, upon written application, to grant an operator an interim exemption from the provision prohibiting the discharge of aquaculture waste. If an interim exemption is granted by the Authority,, such exemption ceases to have effect four (4) months after the regulation commences or any earlier time stated in the exemption.
In addition, the Commonwealth Minister may accredit a law of the State of Queensland where the Minister considers the law provides sufficient protection for the Marine Park and the law complies with Australia's international obligations. Where the Minister accredits the Queensland law, the prohibitions under the proposed Regulations will not apply to the discharge of aquaculture waste carried out in accordance with those laws.
The Regulations provide that a person who intentionally or negligently contravenes the prohibition is liable to a penalty of up to 50 penalty units ($5,500). A person who contravenes a condition of a permission allowing such activities is similarly liable. A company is liable to up to five times that amount (see section 4B(3) of the Crimes Act 1914).
The assessment regime for giving permission to discharge aquaculture waste will substantially reflect that which is currently in place for permissions for other activities in the Marine Park pursuant to the Great Barrier Reef Marine Park Regulations. Other Commonwealth legislation such as the Environment Protection (Impact of Proposals) Act 1974 and the Australian Heritage Commission Act 1975 apply to the Authority's decision making process, including the consideration of giving permission under these proposed Regulations. .
Details of the Regulations are included in Attachment 1.
Impact On Business
A Regulation Impact Statement (RIS) is included at Attachment 2.
The Regulations commence on gazettal.
Attachment 1
The Regulations are as follows:
The Regulations regulate the discharge of aquaculture waste indirectly into the Marine Park. Discharges of similar waste directly into the Marine Park would be controlled in accordance with the relevant Zoning Plans for the Marine Park. The process for receiving, considering, reviewing and generally administering the permission process follows that which is in place in respect of similar activities were they to occur in the Marine Park under the Great Barrier Reef Marine Park Regulations 1983.
Readers Guide
This is an explanatory provision which has no effect on the interpretation of the Regulations. It points readers to definitions of some words and phrases used in the Regulations which are defined in the Act and outlines the application of other Commonwealth legislation which further controls the decision making processes of the Great Barrier Reef Marine Park Authority, particularly:
(a) the effect that giving a permission to discharge waste will have on a place that is on the Register of the National Estate (Australian Heritage Commission Act 1975); and
(b) whether the giving of permission will have a significant environmental effect (Environmental Protection (Impact of Proposals) Act 1974).
The guide also explains that similar results may occur under the Environment Protection and Biodiversity Conservation Act 1999 when it enters into force.
Part 1
This Part deals with introductory matters.
Regulation 1 Sets out the name of the Regulations as the Great Barrier Reef Marine Park (Aquaculture) Regulations 2000.
Regulation 2
The Regulations are to commence on gazettal.
Regulation 3
Defines words used in the Regulations, including:
"aquaculture waste" covers all forms of waste from an aquaculture operation.
"aquaculture operation" means those operations for the propagation, rearing or breeding of any aquatic animals. The definition is expansive and includes all discharges of waste from fish, prawn, shellfish and crocodile farms.
Part 2
This Part provides for the Minister to accredit Queensland laws.
Regulation 4
Prescribes what "requisite degree of protection for the Marine Park environment" means.
The term is used in regulations 5, 6 and 7 to circumscribe the powers of the Minister for both the approval of a Queensland law and the revocation of a Queensland law.
The degree of protection that the Minister must consider is that which complies with Australia's international obligations under:
(a) the Convention for the Protection of the World Cultural and Natural Heritage; and
(b) the United Nations Convention on the Law of the Sea.
The Minister must also consider the degree to which the Queensland law provides adequate protection from pollution for animals and plants in the Marine Park.
Regulation 5
Sets out the circumstances in which the Commonwealth Minister may accredit a Queensland law. Once given, that accreditation works to remove the discharge of aquaculture waste in accordance with the approved Queensland law from the prohibition established under Part 3. The Minister may only accredit a Queensland law upon a request by the relevant Queensland Minister where the law provides at least the degree of protection set out in Regulation 4.
In making a decision about the accreditation of a Queensland law, the Minister may take into account, inter alia, the administration of the law as well as its content. This would include matters such as enforcement policies, resourcing, as well as review and reporting mechanisms. The Minister may only accredit where there are reasonable grounds for believing the law provides the requisite degree of protection.
The Minister may also take into account the effect of the law in combination with other Queensland laws. For example, in deciding whether to accredit a Queensland law that deals with licensing of discharges, the Minister could take into account whether an adequate environmental impact assessment will be carried out under another law before a decision is made on licensing the discharge.
An accreditation must be in writing, published in the Gazette, and be accompanied by a statement of the reasons for the decision.
In accordance with section 49A of the Acts Interpretation Act 1901, the accredited Queensland law will be that law in force at the time of the accreditation. Changes to the Queensland law will have to receive further accreditation by the Commonwealth Minister before they are effective to remove a discharge under the new Queensland law from the prohibition under Part 3.
As this matter is one directly between Governments, no right of review by the Administrative Appeals Tribunal is provided.
Regulation 6
The Commonwealth Minister may revoke an accreditation under regulation 5 where the law no longer provides the requisite degree of protection set out in regulation 4. In deciding whether or not to revoke accreditation, the Minister may consider whether the administration of the law as well as its content provides the requisite degree of protection for the Marine Park environment. The Minister may also consider the effect of the law in combination with other laws.
A revocation of the accreditation of the Queensland law must be notified in the Gazette and has effect from the day stated in the notice.
As the accreditation and revocation of a Queensland law is a matter directly between Governments, no right of review, other than that available under the Administrative Decisions (Judicial Review) Act 1977, is available.
Regulation 7
The Commonwealth Minister may declare that an accredited Queensland law does not apply to a particular aquaculture facility. In considering whether or not to make such a declaration, the Minister must take into account whether the accredited Queensland law provides the requisite degree of protection for the Marine Park and may take into account the effect of the accredited Queensland law in combination with other Queensland laws. The Minister may make such a declaration if the Minister is satisfied that, because of the way in which the relevant Queensland law is administered in relation to the aquaculture facility, it does not provide the requisite degree of protection for the Marine Park.
If the Minister makes a declaration under Regulation 7, he or she must publish it in the Gazette, and must prepare and make publicly available, a statement of reasons for the declaration.
A declaration has effect from the day stated in it, however, that day must not be earlier than the day on which the declaration is published or later than one (1) year after the declaration is published.
Part 3
This Part contains the substantive operative provisions of the Regulations. The general scheme set out in Part 7 provides for a prohibition on the discharge of aquaculture waste into certain areas, however, the prohibition does not apply in the circumstances set out in regulations 10 to 14. The basic scheme is that there are discharges of aquaculture waste which are of minimal impact (regulation 13), and discharges which are of concern which only require notification (regulation 14).
Regulation 8
Discharge in the Regulations means the same as in section 38J(7) of the Act; that is, release, however the release is caused, and includes any escape, disposal, depositing, spilling, leaking, pumping, emitting or emptying.
Regulation 9
Sub-regulation (2) prohibits the discharge of aquaculture waste from an aquaculture facility within the controlled area:
(a) into waters (whether or not part of Queensland) which Are contiguous with the Marine Park;
(b) into any creek, estuary, or river within the controlled area; or
(c) into culverts or drains within the controlled area, the discharge from which passes into waters mentioned in paragraph (a) or a creek, estuary, or river mentioned in paragraph (b); or
(d) into any of the areas in paragraphs (a) to (c) where the waste has been discharged onto land within the controlled area if its escape into the areas(a) to (c) above is reasonably foreseeable.
The penalty for a contravention of sub-regulation (2) is 50 penalty units (presently $5,500) for an individual and up to 5 times that for a company (see section 4B(3) of the Crimes Act 1914).
The prohibition is intended to cover all forms of discharge which may make its way into the Marine Park.
The "controlled area" is an area approximately five (5) kilometres wide along the east coast of Queensland which is adjacent to the Great Barrier Reef Marine Park. Discharges of aquaculture waste into the creeks, rivers, culverts and drains etc. in this area are prohibited unless approved or otherwise permitted under these Regulations. The definition of "coastal waters" makes it clear that the Regulations apply in respect of discharges which then flow into waters which ultimately mix with waters of the Great Barrier Reef Marine Park.
To aid in the application of section 4K of the Crimes Act 1914 (continuing and multiple offences), sub-regulation (5) sets out that the obligation imposed by Regulation 9(2) not to discharge waste, arises each day. This will mean that for each day on which a person unlawfully discharges aquaculture waste, a contravention of Regulation 9(2) occurs.
Regulation 10
This regulation explains that a discharge in accordance with a permission granted under Part 4 is not a contravention of Regulation 9(2); the corollary being that a person who discharges aquaculture waste contrary to the conditions of a permission commits an offence under Regulation 9(2).
Regulation 11
This regulation provides that regulation 9 prohibits the discharge of aquaculture waste from an aquaculture facility that was operating on 1 October 1999 only if, after that day, the volume of aquaculture waste discharged is significantly increased, or the nature or composition of the aquaculture waste discharged alters in a significant way. A facility is taken to have been operating on 1 October 1999 if aquaculture products were produced in the facility and were sold before that day.
An operator of an aquaculture facility to which sub-regulation 11 (1) applies may seek the Authority's advice as to whether or not a proposed increase in volume, or change in composition, of waste is significant. If the Authority advises the operator that the proposed increase or change is not significant, by virtue of sub-regulation 11 (5), the change is taken not to be significant for the purposes of paragraphs 1 (a) or (b), or both.
Regulation 12
Regulation 12 explains that the Regulation 9 does not prohibit the discharge of aquaculture waste from a facility if the discharge is in accordance with approval given under the Environment Protection and Biodiversity Conservation Act 1999.
Regulation 13
A discharge of aquaculture waste is not prohibited under regulation 9(2) where it meets the criteria set out in this regulation. An aquaculture operation may discharge aquaculture waste under this regulation if.
(a) the facility is not involved in the sale, trade or research of aquatic animals in
a tank or artificial container; or
(b) (i) the total surface area of water used for aquaculture is not more than 1 hectare; and
(ii) the facility does not carry on hatchery operations for the production of larvae.
This regulation is intended to apply to those small aquaria which are not expected to have any significant impact upon the Great Barrier Reef Marine Park.
Regulation 14
Sub-regulation 14(2) provides that a discharge of aquaculture waste is not prohibited under regulation 9(2) where it meets the criteria set out in sub-regulation (1). A facility which discharges aquaculture waste under this regulation is a concessional aquaculture facility (see regulation 15).
An aquaculture operation may discharge aquaculture waste under this regulation where:
(i) the discharge of aquaculture waste is from a facility which utilises greater than one (1) hectare but not more than five (5) hectares of area of water for aquaculture purposes; and
(ii) the facility does not carry on hatchery operations for the production of larvae.
The operator of an aquaculture operation may only discharge aquaculture waste under this regulation where he/she comes within the scope of sub-regulation (1) and he/she provides the information set out in sub-regulation (3). Where the operator fails to provide the information as required under sub-regulation (3), he/she commits an offence, the penalty for which is 50 penalty units (presently $5,500). The obligation to provide information is a continuing one.
Sub-regulation (7) makes it clear that a conviction for an offence may occur even though other action may be taken under regulation 15.
The operator is also required to notify the Authority of any unusual discharge of waste and provide certain details. This information will assist the Authority to monitor water quality in and around the Marine Park.
Sub-regulations (4) and (5) make it clear that the obligations mentioned in the previous paragraphs do not apply to an aquaculture facility that was operating on 1 October 1999; that is, where aquaculture products were produced by the facility and were sold before that day.
Regulation 15
This regulation applies to concessional aquaculture facilities under regulation 14.
Sub-regulation (2) allows the Authority to give the operator of a concessional aquaculture facility a notice requiring the operator to give reasons why the facility should continue to be a concessional aquaculture facility. A notice may be given by the Authority where the Authority believes on reasonable grounds the operator has failed to provide the information required under subregulation 15(2). This would also apply where the information given was not correct or the Authority had reasonable grounds for believing the information was not correct.
The operator must be given a reasonable amount of time to comply with the request. What is reasonable will depend upon the nature of the information requested and the importance of that information in the consideration of the impacts that may occur as a result of the continued unchecked operation of the facility.
After considering the response of the operator and any other relevant matters, subregulation (4) allows the Authority to give a notice that the facility is no longer a concessional aquaculture facility. The facility ceases to be a concessional aquaculture facility at the end of the day on which the notice is served on the operator (sub-regulation (5)).
A decision of the Authority that the facility is no longer a concessional aquaculture facility is a reviewable decision under Part 5 of the Regulations.
Sub-regulation (8) makes it clear action may be taken under this regulation even where the operator of the aquaculture facility has been convicted under sub-regulation 14(3).
Regulation 16
This regulation explains that a discharge of aquaculture waste that is authorised by an accredited Queensland law is not a contravention of sub-regulation 9(2).
Sub-regulation (4) explains that if the accreditation of the Queensland law is revoked, then the 'exception' provided by regulation 16(1) is no longer applicable and relevant waste discharges will again require a permission under the Regulations.
Regulation 17
This regulation applies where the Minister has revoked accreditation of the Queensland law but the revocation has not yet taken effect.
This regulation allows the Authority to serve a notice on the operator of the aquaculture facility seeking reasons why the facility should not be directed to cease discharging aquaculture waste where the Authority has reasonable grounds for believing that the discharge from the facility is polluting waters of the Marine Park in a manner harmful to animals and plants in the Marine Park. This allows immediate action to be taken to stop aquaculture waste discharge which may be injurious to animals and plants in the Marine Park without having to delay until revocation of the Queensland law has taken effect.
After considering the reasons provided by the operator of the facility as to why it should not be stopped from discharging aquaculture waste, the Authority may give the operator a notice requiring the operator to stop discharging aquaculture waste. The notice has effect on the day it is served on the operator, however, the Authority may allow up to a maximum of seven (7) days from the date of the notice to allow the operator of the facility to stop the discharge.
A decision of the Authority to require that an operator cease discharging aquaculture waste is reviewable under Part 5.
Regulation 18
This regulation provides for the Authority, upon written application, to grant an operator an interim exemption from regulation 9 prohibiting the discharge of aquaculture waste. If an interim exemption is granted by the Authority, such exemption ceases to have effect four (4) months after this regulation commences or any earlier time stated in the exemption.
Part 4
This Part sets out the manner in which applications for permission to discharge aquaculture waste that is regulated under these Regulations may be made. The Part is divided into five Divisions,- each dealing with a different element of the permitting process.
Division 4.1 - Applications
This Division sets out the process for making an application for permission to discharge aquaculture waste.
Regulation 19
This regulation applies to the discharge of aquaculture waste and sets out that applications must be in writing and in a form approved by the Authority.
Regulation 20
This regulation deals with applications made by multiple applicants and identifies the making of the original application as the application.
Sub-regulations (1) and (2) deal with applications by two or more persons where one or more persons do not continue with the application. Sub-regulations (2) and (3) deal with the reverse situation where one or more persons join the original application with the consent of the first applicant. This regulation is designed to remove doubts about the validity of the application and the effect of the removal or joining of applicants.
Regulation 21
This regulation sets out the information required to be provided by the applicant for a permission to discharge aquaculture waste under these Regulations. This information is necessary to ensure that the Authority is able to carry out a proper assessment of the effects of the proposal before deciding on whether or not to grant a permission.
Regulation 22
This regulation requires an applicant to publish information about the application. This regulation ensures the public is given an opportunity to comment upon proposals that may affect them. A minimum of thirty (30) days is to be allowed for public comment to be made.
The requirements of this regulation do not apply in the circumstances set out in subregulation (5).
Regulation 23
This regulation allows the Authority to require further information to enable it to properly carry out an assessment of the proposed activity. On request from the applicant, the Authority may extend the time for provision of the additional information. If the information is not provided within the allowed time, the application lapses by force of subregulation (4).
Division 4.2 - Consideration of Applications
This Division sets out the matters the Authority must consider when deciding whether or not to refuse or grant a permission.
Regulation 24
This regulation sets out the matters that the Authority must consider when making a decision on an application for permission. Sub-regulation (1) sets out clearly the five matters the Authority must take into account when considering an application for a permission to discharge aquaculture waste.
Regulation 25
This regulation requires the Authority to assess whether the proposed discharge of aquaculture waste is likely to pollute waters in a manner harmful to animals and plants in the Marine Park. The Authority may take into account the precautionary principle when making assessments.
Division 4.3 - Decisions on applications
This Part sets out the decision making and notification process.
Regulation 26
Sub-regulations (1) and (2) require the Authority to make a decision on a permission application where the person fulfils the requirements set out in paragraphs 1(a) to (c).
Sub-regulation (2)(b) provides that if the Authority grants permission for the discharge of aquaculture waste, it may impose a condition or conditions necessary or convenient for protecting animals and plants in the Marine Park from pollution caused by the proposed discharge, or for repairing or mitigating any damage caused. Without limiting sub-regulation (2)(b), sub-regulation (3) specifies matters which may be the subject of conditions.
Sub-regulation (4) requires the permission to specify an aquaculture facility or proposed aquaculture facility for the purposes of which the permission is granted. A general permission to discharge aquaculture waste is not allowed to be given.
Sub-regulation (5) makes it clear that where the Authority does not grant a permission for the discharge of all of the aquaculture waste applied for, the Authority's permission is taken to have been refused in respect of the discharge not granted. This provision clarifies the status of proposals contained in an application which are not given permission.
Regulation 27 This regulation requires the Authority to give the applicant a notice in writing regarding its decision. In addition, regulation 52 requires the Authority to publish certain details of its decision on the application in the Gazette.
A failure to give the required notice of the decision or include in the notice the matters referred to in sub-regulation (2) does not invalidate the Authority's decision on the application.
Division 4.4 - Transfer of permissions
This Division sets out the only ways in which an interest in a permission given under these Regulations may be transferred by the holder of the permission.
Regulation 28
This regulation essentially provides for this Division to codify the ways in which an interest in a permission may be transferred. No other method of transfer of an interest, either in law or equity, will be effective. This subdivision codifies the transfer of a permission.
Regulation 29
This regulation sets out the manner in which an application for a transfer of a permission is to be made. No transfer of a person's interest in a permission may occur where the permission is suspended or is in the process of being renewed. Regulation 20 would allow further persons to be included on an application when a renewal is being applied for.
Regulation 30
This regulation allows the Authority to seek further information about a transfer to enable it to properly consider the application. The application for transfer will automatically lapse within sixty (60) days after the date of the notice if the information is not provided in accordance with the notice. The sixty (60) day period may be extended by the Authority.
Regulation 31
This regulation sets out the matters which the Authority must take into account when deciding whether or not to allow a transfer of a person's interest in a permission. Relevant considerations for the Authority are set out in sub-regulations (1)(a) and (b). The capacity of the transferee to manage the discharge of waste under the permission is a relevant matter.
Sub-regulation (2) provides that a decision on an application for transfer must be made within twenty-eight (28) days of receipt of the application except where time is extended as a result of a request for further information.
Regulation 32
This regulation provides that the Authority may approve the transfer, approve the transfer but vary the conditions of the permission (only with consent of the transferee), or refuse permission.
Regulation 33
This regulation sets out the notices that the Authority must give in respect of a decision regarding an application for transfer of a permission. Notice must be given to the applicant for transfer.
Sub-regulation (3) makes it clear that the Authority's decision is not affected by a failure to include the prescribed information in the notice.
Regulation 34
This regulation makes it clear that the approval of the transfer of a permission is equivalent to the giving of a new permission by the Authority to the transferee.
This regulation also makes clear that the permission given to the transferee expires on the date it would have expired if it had not been transferred.
Division 4.5 - Expiry, amendment, suspension and cancellation of permissions
This Division sets out the circumstances in which a permission may be suspended, amended, or cancelled. It also includes provisions for the expiry of a permission where the permission holder has not commenced activities within a prescribed time. The Division sets out procedures for suspending, amending, or cancelling permissions. The Division is divided into sub-divisions dealing with each element of the Division. A decision by the Authority to amend (other than by consent) or cancel a permission is reviewable under Part 5.
Subdivision 4.5.1 deals with the period permissions; are in force.
Regulation 35
This regulation sets out the period that permissions are in force. Permissions remain in force until the end date specified in the permission or, if it is earlier surrendered or cancelled, the day it is surrendered or cancelled.
Regulation 36
This regulation provides that a permission remains in force beyond the end date specified in the permission (the first permission) where the permission holder applies for a further permission before the expiry of the first permission. The subregulations set out the various eventualities associated with application for further permission and how long the first permission remains in force. Additional persons may join with the original permission holder during the application for the further permission.
Subdivision 4.5.2 deals with amendment and suspension of permissions
Regulation 37
This regulation provides that conditions of a permission given by the Authority may be amended by the Authority at any time with the consent of the permission holder to ensure the conditions remain appropriate to achieving the objects of the Act.
Regulation 38
This regulation gives the Authority power to suspend a permission, amend conditions, or impose further conditions on a permission where because of unforseen or unforeseeable circumstances water is polluted or likely to be polluted in a manner harmful to animals and plants in the Marine Park. This power may be exercised even if there is no breach of condition.
Sub-regulation (3) sets out the procedures to be followed, including the carrying out of an investigation into the matter by the Authority where it takes action under this regulation. Where the Authority finds no reasonable grounds for the action it has taken, the Authority must cancel the suspension or amendment of conditions, or withdraw the condition (sub-regulation (4)).
Whether a situation is one which was unforeseen or unforeseeable will depend upon the state of knowledge held or reasonably obtainable by the Authority at the time the permission was given.
Regulation 39
Sub-regulation (1) provides for the Authority to suspend a permission, amend a condition of a permission, or impose further conditions where it appears to the Authority that the holder of a permission is not complying with the existing conditions of a permission.
Sub-regulation (2) requires the Authority to investigate the circumstances leading to a suspension or the amending or imposition of conditions under this regulation.
Sub-regulation (3) requires the Authority to cancel the suspension, withdraw the condition or its amendment where it does not find any reasonable ground for having taken action under this regulation. Sub-regulation (4) clarifies that the Authority may cancel the suspension if it is satisfied the permission holder is or will comply with the conditions.
Regulation 40
This regulation clarifies that a person is not entitled to discharge aquaculture waste while the permission is suspended.
Regulation 41
This regulation requires the Authority to give written notice to the permission holder of a suspension of the permission, amendment of condition, or imposition of further conditions under regulations 38 or 39. The notice must include the matters referred to in subregulation (2). However, a failure to provide written reasons or include the matters referred to in sub-regulation (2) does not invalidate the decision to take the action.
Division 4.5.3 deals with the cancellation of permissions.
Regulation 42
Under this regulation, the Authority may cancel a permission where the Authority has taken action to amend a condition or impose a condition under sub-regulations 39(1)(a) or (b) and the permission holder:
(i) fails to comply with an amended condition; or
(ii) fails to comply with a further condition that has been imposed.
Regulation 43
This regulation provides a general power for the Authority to cancel a permission where water is polluted in a manner harmful to animals and plants in the Marine Park or there is an imminent threat of such pollution. This power may be exercised even if there is no breach of condition and even if no action has been taken under regulation 38.
Regulation 44
If the Authority cancels a permission under this subdivision it must give the permission holder written notice of the cancellation which includes certain information, such as its reasons for its decision to cancel the permission.
A failure to provide written reasons or include the matters referred to in sub-regulation (2) does not invalidate the decision to take the action.
Regulation 45
This regulation provides that a person may be convicted of an offence relating to a contravention of a permission condition notwithstanding the permission has since expired or been cancelled.
Regulation 46
Sub-regulation (1) provides a general power for the Authority to cancel a permission if the permission holder does not begin to carry on the permitted operations within one (1) year of the giving of permission by the Authority. This power exists in addition to any other powers in this Part. Sub-regulation (2) provides for the Authority to grant an extension of the time allowed by sub-regulation (1).
Part 5
This Part provides for permit assessment fees to be charged by the Authority for the assessment of applications under regulation 25, and sets out the procedure for notification of these fees. The Part further provides that the Authority may waive payment of the fee, and a failure to pay the fee will result in the lapsing of the permit application.
Regulation 47
This regulation provides that a fee is payable to the Authority for an assessment under regulation 25 in respect of an application for permission to discharge aquaculture waste. The amount of the fee is calculated in accordance with certain specified regulations of the Great Barrier Reef Marine Park Regulations 1983.
Regulation 48
This regulation provides for the Authority to waive payment of a permit application fee which would otherwise be imposed under the Regulations.
Regulation 49
This regulation requires the Authority to give a permit applicant a notice which sets out the amount of the fee payable for an assessment or which states that no fee is payable. If a fee is payable, the permit applicant has twenty-one (21) days from the date set out in the notice in which to pay. If an application is withdrawn before the end of the twenty-one (2 1) day period, the amount of any fee paid is to be refunded. Subject to sub-regulation (2), an amount paid for an application is not to be refunded if the application is withdrawn, or otherwise ceases to have effect, after the fee is paid.
Regulation 50
This regulations provides that an application lapses if the permit application fee is not paid within the twenty-one (2 1) day period.
Part 6
This Part sets out the right of applicants to seek internal review and external review of decisions made under these Regulations. The Part provides procedures for seeking review of decisions. A decision under these Regulations is reviewable externally by the Administrative Appeals Tribunal.
Regulation 51
This regulation sets out the definition of a "notifiable decision". A notifiable decision includes any decision on an application, a decision to cancel a permission, a decision in relation to conditions of a permission, and a decision on whether an aquaculture operation has ceased to be a concessional aquaculture facility.
Regulation 52
Sub-regulation (1) requires the Authority to publish a notice in the Gazette of a notifiable decision.
Under sub-regulation (2), a failure to publish a notice does not affect the validity of the decision.
Regulation 53
This regulation sets out the matters that must be included in a notice about a notifiable decision published in the Gazette. A failure to include the matters required under this regulation does not affect the validity of the decision. The right of any particular person to obtain a statement of reasons in relation to the decision is set out in other legislation (eg Administrative Appeals Tribunal Act 1975 and Administrative Decisions (Judicial Review) Act 1977).
Regulation 54
Sub-regulations (1) and (2) provide that a person whose interests are affected by a notifiable decision may ask the Authority to reconsider the decision. Sub-regulation (1) makes it clear that a reconsideration decision is not a decision which a person can ask the Authority to reconsider under sub-regulation 55(3).
Sub-regulation (3) requires a request for reconsideration to be in writing and to set out the reasons why the Authority should reconsider the decision. The reasons need not be a full and detailed account of each and every fact or issue that the person seeking the reconsideration contends was in error, however, it must provide sufficient detail to enable the Authority to determine what issues the person seeking the reconsideration is concerned about and, where necessary, any supporting evidence. Such a request must be given before the expiry of twenty-one (21) days after the publication of notice of the decision in the Gazette. A person may apply for reconsideration from the date of the decision up to the expiry of the twenty-one (21) day period following publication of the notice in the Gazette.
Regulation 55
Sub-regulation (1) reiterates that a person may not seek a reconsideration of the reconsidered decision of the Authority. Sub-regulation (2) requires the Authority to make a decision within forty (40) days of the request for reconsideration of the notifiable decision ("the original decision").
Sub-regulation (3) provides that the Authority must either confirm the original decision, amend it, or substitute another decision for the original decision.
Sub-regulations (4) and (5) require the Authority to give the person who applied for the reconsideration written notice of its reconsidered decision, and to publish notice of its decision in the Gazette. The two notices need not be identical.
Sub-regulation (6) provides that a decision, other than a decision to confirm, replaces the original decision for all purposes. This explains the effect of the reconsidered decision.
Regulation 56
This regulation clarifies that the making of a reconsideration request does not have any 'staying' effect on the decision of the Authority and nor does it stop the Authority from taking action to implement the decision under reconsideration.
Regulation 57
This regulation provides that a person may apply to the Administrative Appeals Tribunal for review of the reconsidered decision; that is, the decision of the Authority under sub-regulation 55(3).
Part 7
This Part sets out enforcement matters. It is in addition to the enforcement matters set out in the Act. In the Act, a reference to "this Act" includes a reference to regulations made under the Act. The powers of inspectors are generally set out in the Act and are supplemented by this Part. Inspectors are appointed under section 43 of the Act.
Regulation 58
This regulation sets out the definition of "premises" for the purposes of this Part. Premises include a vessel and a vehicle.
Regulation 59
Sub-regulation (1) provides that an inspector may enter premises with the consent of the owner for particular purposes. It includes ascertaining whether there is on the premises any evidence regarding aquaculture operations. Powers in relation to premises also include premises which may be ' relevant to the investigation and not just those on which aquaculture operations may be carried on.
Sub-regulation (2) sets out that an inspector may enter premises with a warrant obtained under regulation 60 for any of the purposes set out in sub-regulation (1).
Sub-regulation (3) sets out the things an inspector may do when the inspector enters premises by consent or under a warrant.
Section 47 of the Act sets out the powers of an inspector to seize items which were used or involved in the commission of an offence. This power of seizure is separate to that used in a search under a warrant.
Regulation 60
This regulation sets out the mechanism for an inspector to obtain a warrant to enter premises. A warrant to enter premises extends to not only the premises where the aquaculture operations may be carried on, but to any other premises from which evidence may be obtained.
Sub-regulation (2) specifies the matters that must be contained in the warrant.
Where an inspector exercising the power to enter and search under a warrant finds any other item that may afford evidence of the commission of an offence under the Act, these Regulations or any other regulations made under the Act, the inspector may secure the item for up to two (2) days and then seek a further warrant for its seizure.
Sub-regulation (5) requires an occupier of premises entered pursuant to a warrant under this regulation to provide the inspector with reasonable facilities and assistance in the effective exercise of the powers under the warrant.
A contravention of sub-regulation (5) is punishable by a fine of up to thirty (30) penalty units.
Regulation 61
Where an inspector secures anything as a result of the execution of a warrant under the preceding regulation, the inspector may apply to a Magistrate for a warrant to enter the premises and seize that thing. A thing seized under a warrant given under this regulation may be retained for sixty (60) days after the seizure, or where a prosecution is brought, until the prosecution is terminated.
This regulation sets out the process for obtaining a warrant and the matters that must be included or mentioned in the warrant.
Part 8
Part 8 sets out a process for providing just terms compensation if any property is acquired (within the meaning of the Constitution) as a result of these Regulations.
Regulation 62
This regulation provides that if anything in these Regulations results in an acquisition of property from a person, being an acquisition within the meaning of paragraph 5 1 (xxxi) of the Constitution, then the Commonwealth is liable to pay to that person such compensation as is determined by agreement between the Commonwealth and that person or, in the absence of agreement, by action brought by that person against the Commonwealth.
These Regulations are not intended to acquire another's interest in an aquaculture operation but merely to regulate the impact of the operation on the animals and plants in the Great Barrier Reef Marine Park.
GREAT BARRIER REEF MARINE PARK ACT 1975
GREAT BARRIER REEF MARINE PARK (AQUACULTURE) REGULATIONS 2000
REGULATION IMPACT STATEMENT
January 2000
REGULATION IMPACT STATEMENT
This regulation impact statement identifies the impact of the Regulations prepared for aquaculture activity adjacent to the Great Barrier Reef Marine Park.
The Great Barrier Reef Marine Park (GBRMP) and World Heritage Area (GBRWHA) have an inter-dependent relationship with the adjacent coastal catchments. The water quality and the ecological integrity of the GBRMP are affected by material originating from a range of land-based activities.
The GBR Catchment has been extensively modified for forestry, agriculture and to a lesser extent, urbanisation. As a consequence large amounts of nutrients, sediment, and significant quantities of pesticide residues have been discharged via rivers into the GBR. Higher concentrations of nutrients and suspended sediments have been measured in the GBRWHA area coastal zone, compared to waters further offshore, especially during flood events. High concentrations of nutrients occur immediately adjacent to sewage outlets and other point sources of discharge such as aquaculture developments.
Land based sources of pollution could, unless adequately regulated, adversely affect the Great Barrier Reef by causing changes in productivity and distribution of flora and fauna, and through the bio-accumulation of chemical pollutants in flora and fauna.
Management of non point sources of pollution to the GBRMP and GBRWHA is currently advanced through education, extension and other voluntary instruments. In contrast, aquaculture, sewage and other point sources of pollution are regulated by the State via a licensing process.
The aquaculture industry is currently small, in total about 400ha. However, there is a significant potential for expansion due to numerous suitable sites adjacent to the GBRMP. In the absence of an adequate regulatory system, ad hoc expansion of aquaculture is potentially hazardous to the water quality and to the ecological integrity of the GBRMP and GBRWHA. The degradation of the near shore marine environments that could result from effluent discharge would result in the alienation of users of these regions of the Marine Park. Currently, Queensland legislation does not provide for a full and transparent Environmental Assessment process for all aquaculture activities adjacent to the GBRMP and GBRWHA.
The Great Barrier Reef Marine Park Authority (GBRMPA) has obligations with respect to the management of the Great Barrier Reef Marine Park. The particular obligations are set out in the Great Barrier Reef Marine Park Act 1975.
In addition, the whole of the Great Barrier Reef Marine Park is included within the boundaries of the Great Barrier Reef World Heritage Area. Under the Convention for the Protection of the World Cultural and Natural Heritage (Paris 1972), Australia has assumed obligation to protect, conserve, present and transmit to future generations the world heritage area and its values.
Section 66 of the Great Barrier Reef Marine Park Act provides for the making of regulations "necessary to give effect to the Act". Section 66(2)(e) provides for the making of regulations "regulating or prohibiting acts (whether in the Marine Park or elsewhere) that may pollute water in a manner harmful to animals and plants in the Marine Park".
What is the problem being addressed?
Aquaculture is a rapidly developing industry in North Queensland that, if not properly regulated, has the potential for serious environmental impacts into the adjacent GBRMP and GBRWHA. Growth of the aquaculture industry is accelerating due to the availability of large areas of suitable coastal land, well-established transport and other infrastructure and adequate water quality. International experience indicates that unregulated growth of land-based aquaculture can result in significant environmental effects. Following public concern in relation to aquaculture development, GBRMPA reviewed the adequacy of current legislative and jurisdictional arrangements for the environmental management of aquaculture in catchments adjacent to the Marine Park.
Direct impacts from aquaculture operations could include:
(a) the introduction of growth and other hormone compounds (some of which could be experimental) into open water systems;
(b) the discharge of pathogens and parasites, that result from the abnormally high concentrations in farms of marine animals, into receiving waters not previously exposed to these agents;
(b) the discharge of undigested food and excreted waste product from abnormally high concentrations of marine animals into areas possibly previously not associated with such matter;
(c) changes to water quality in receiving waters, due to discharge of water enriched with nutrients and suspended particles;
(d) the unexpected and inappropriate introduction of non-endemic animals and plants into the GBRWHA through inadequate discharge, screening/control measures during flooding and similar events; and
(e) changes in flora and fauna concentrations/distributions in the receiving waters resulting from changes in water quality.
These points highlight the direct and indirect threats to the receiving waters of the GBRMP and GBRWHA which must be adequately addressed by regulatory regimes. Significant and potentially increasing loads of nutrients, sediments and pollutants from aquaculture could combine with existing loads from other land uses to critical levels beyond the capacity of the receiving waters. This potential combined with the threat of disease outbreaks and genetic compromise of the wild populations presents a risk to the integrity of the GBRMP and GBRWHA which must be adequately managed.
Aquaculture operations represent point sources of effluent discharge. The impact could hence be compared to the impact of sewage outfalls, which have caused the eutrophication of localised coastal areas. Overseas experiences of aquaculture development indicate the potential for extreme coastal and marine degradation. Large scale clearing of mangroves and uncontrolled aquaculture discharge has resulted in the polluted demise of many coastal regions in Thailand, India, Taiwan and South America and the subsequent collapse of the adjacent wild fishery and the aquaculture operations themselves.
The impact of pathogens and genetic contamination is case-specific and clearly has the potential to be a significant threat to the integrity of the receiving marine waters. Ultimately, this could result in the significant degradation of the marine environment, fishing and tourist amenities provided by the GBRMP and GBRWHA.
The current Queensland State planning and assessment mechanisms for aquaculture was found to be inadequate and failed to meet Marine Park objectives for the following reasons:
* Aquaculture development adjacent to the Marine Park can occur in the absence of a rigorous impact assessment process and public consultation. There are currently some Local Government areas adjacent to the GBRMP and GBRWHA where aquaculture is deemed "As of Right" in rural zonings under the Town Planning Schemes, thus no town planning application is required and therefore no trigger for the impact assessment provisions is activated. Some of these Local Government areas occur in the Burdekin to Broadsound region where 63 areas have been identified as suitable for potential aquaculture development. This includes some 46,428 hectares of suitable land that can potentially be developed without impact assessment. Even in other Local Government areas adjacent to the GBRMP and GBRWHA, there is no assurance of a full and proper environmental amendment of aquaculture proposals.
* There is potential for, and, in some circumstances, actual exclusion of the GBRMPA from the existing Queensland assessment process -- thereby inhibiting the GBRMPA's capacity to effectively meet its responsibility to ensure the GBRMP is adequately protected, particularly from external influences.
* Aspects of the impact assessment requirements of Queensland legislation do not represent best environmental practice. For example, there is no guarantee that an adequate level of environmental amendment (e.g. or EIS) will occur, there is no assurance that appropriate levels of public consultation will occur, and potential impacts on the Great Barrier Reef Marine Park are not properly addressed.
Other failures of the Queensland regulatory process with regard to the environmental health of the GBRMP and GBRWHA are due to:
* inadequate regulation, including monitoring and compliance mechanisms in relation to aquaculture effluent discharge for the protection of water quality for the GBRMP and GBRWHA and
* inadequate instruments for the surveillance and monitoring of diseases and loss of genetic integrity arising from aquaculture activities and response mechanisms.
What are the objectives of government action?
The objective is to avoid or minimise the adverse effects of aquaculture on the Marine Park, or waters contiguous with the Marine Park, and the animals and plants in the Marine Park.
In particular the objective is to prevent the pollution of waters in the Marine Park in a manner harmful to plants and animals by:
(a) encouraging the mitigation of impacts of aquaculture activity on the GBRMP and GBRWHA;
(b) regulating discharges of aquaculture effluent to water contiguous to the GBRMP so as to protect the Great Barrier Reef and the Marine Park;
(c) protecting the interest of users of the GBRWHA and
(d) acting to conserve the water quality and ecological integrity of the GBRWHA.
Is there a regulation/policy currently in place? Who administers it?
Assessment of aquaculture developments above the low water mark along the coast of Queensland currently rests principally with the relevant Queensland Local Government Authority, in conjunction with relevant Queensland State agencies. The planning and assessment is primarily administered under the Queensland Integrated Planning Act 1997 (IPA). This Act incorporates the Integrated Development Assessment System (IDAS) which is a system designed to provide a single administrative framework for the assessment and approval of all development applications.
Which regulatory and non-regulatory options for dealing with the problem were considered?
The options involve retaining the status quo or using regulatory or non-regulatory intervention. There are various forms of regulatory intervention, ranging from precise, technical specification of standards and process, over general performance standards, to a licensing system, based on a case-by-case assessment, in which the requirements reflect the actual conditions and risks of any particular operations or proposed or established aquaculture operation. Licences/permits could be issued ex-ante on processes, or revoked ex-post on assessment outcomes. Alternatively, a polluter pays principle would involve setting prices depending on the costs incurred by impact of aquaculture on the marine environment. Another way to proceed would be to determine the aggregate amount of emissions that could be tolerated by the marine environment, if this is possible, and allocate or sell off rights to add these pollutants to the water.
Non- regulatory options would involve either pursuing further negotiation with the Queensland Government with the aim of establishing a coordinated course of action which could or could not ultimately involve regulation; or encouraging self-regulation such as the development of voluntary codes of practice.
1. Status Quo
1.1 Continuing the status quo with GBRMPA excluded from planning and assessment in relation to certain aquaculture developments and with the continuing inadequacy of the State system.
2. Regulatory
2.1.1 Application of Commonwealth Regulations to Aquaculture facilities
In this case, the regulatory function could apply to the granting of all aquaculture licences. Section 66 of the GBRMP Act allows the Governor-General to make regulations, including regulations "regulating or prohibiting acts (whether in the Marine Park or elsewhere) that may pollute water in a manner harmful to animals and plants in the Marine Park". Such regulations could require assessment and permitting of existing and new aquaculture facilities to enable the Authority to mitigate pollutant input into the GBRMP and GBRWHA.
2.1.2 Application of Commonwealth Regulations to new operators only
In this case, the making of Regulations (as in section 2.1.1) could make it an offence for new aquaculture facilities only to discharge waste into the waters that are not in the Marine Park but are contiguous with waters of the Marine Park without permission from GBRMPA (a relevant permit). Alternatively, aquaculture could be carried out as authorised by a Queensland Law that has been accredited the Commonwealth Environment Minister if there are reasonable grounds to believe that the requisite degree of protection for the Marine Park environment is provided. Hence it would be possible to have the Regulations apply to new operations and have Queensland Law apply to existing facilities. This approach has been proposed by Queensland and the aquaculture industry, in order reduce the adjustment difficulties of the new regulatory requirements for the existing operators.
Existing aquaculture operations would be exempt from the Regulation but would be subject to a licence review by Commonwealth and Queensland Agencies, under Queensland Law, on a case by case basis. While not captured under the introductory requirements of the new Regulations, existing licences would require amendment to meet the uniform environmental discharge standards established under the Regulations. Existing operators would, if necessary, be required to retrofit their facilities with new technology in order that they meet the same standards as the new operators. It could be necessary for the Commonwealth to amend the Regulations if Queensland's review proves inadequate. An audit of Queensland's review and amendment process could be conducted by the Great Barrier Reef Marine Park Authority one year after the introduction of the Regulations.
This option provides for the assessment of proposals for grant or refusal of a permit that would be undertaken on a case-by-case basis. GBRMPA would then give the permit unconditionally, or give the applicant permission to discharge less waste than specified in the application, or give the permit subject to conditions that require the permittee to indemnify the GBRMPA against costs relating to the permitted operation or conditions necessary to ensure that the objectives of the GBRMPA Act are achieved, or alternatively, refuse to grant the permit. Uniform standards would be established, however there would be some scope for flexibility to meet site variation on a case by case basis.
Permits would be transferable in accordance with the Regulations and remain in force until they lapse or, if renewal is applied for, until a new decision to grant or refuse the permit is made.
Smaller aquaculture operations and aquaria would be either exempt or their operators could be obliged to report periodically to the Authority. The remaining Regulations could set out laws in relation to applications to the Authority for permits to discharge aquaculture waste into waters that are contiguous with waters of the GBRMP, and make provisions for enforcing the Regulations and the conditions of permits.
Under this option, an application for a permit under the regulations should be in writing and include relevant details set out in Section 20 (Part 4) of the Regulations. In assessing an application under the regulatory option, the GBRMPA could take into account the following matters (specified in Section 23, Division 4.2 of the Regulations):
(a) the objectives of the GBRMP Act;
(b) Australia's obligations under the Convention for the Protection of the World Cultural and Natural Heritage and Part XII of the United Nations Convention on the Law of the Sea done at Montego Bay, Jamaica on 10 December 1982;
(c) whether, and to what extent, the proposed discharge of aquaculture waste is likely to pollute the water in a manner harmful to animals and plants in the GBRMP and GBRWHA; and
arrangements for rectifying pollution of that kind.
2.2 The making of Proclamations pursuant to the World Heritage Properties Conservation Act 1983 (WHPC Act) to protect the GBRWHA and, as a consequence, the GBRMP from the adverse effects of discharges from aquaculture operations. Such proclamations could be made where an action is likely to damage or destroy part of a World Heritage Area. THE WHPC Act is deficient in several important areas, eg. it does not provide for any environmental impact assessment.
2.3 Total prohibition of all aquaculture adjacent to the GBRMP and GBRWHA.
2.1 Highly prescriptive mechanisms of licensing that prohibit non-accredited process.
2.2 Polluter Pays Options - This would involve setting incentives and charges as a mechanism of protecting the environmental integrity of the GBR from the effects of unregulated aquaculture activity.
2.3 Auctioning of Pollution Credits: The setting of aggregate amounts of discharges or amounts of land to be used in aquaculture and allocating or selling these to the highest bidders.
3. Non-Regulatory
3.1 Commonwealth negotiation with the Queensland Government to amend, for example, the existing IPA, specifying that significant aquaculture must always be impact-assessable and making referral coordination mandatory, and identifying specific criteria and standards which must always be applied.
3.2 Voluntary self-regulation- Codes of practice have been developed by the Australian Prawn Farmers' Association and Barramundi Association.
Who is affected by the problem and who is likely to be affected by the options under consideration?
Stakeholders affected by the problem include:
* The Australian community and particularly the Queensland community adjacent to the GBRMP.
* Elements of the commercial fishing industry, recreational fishers, indigenous people, tourism operators, tourists, conservationists, and any person.
* Institutions, organisations, agencies, departments, authorities, clubs or associations or the like which has any interest in, or association with, the GBRMP and GBRWHA.
Stakeholders likely to be affected by the options under consideration include:
* The aquaculture industry which, could in certain cases, directly benefit from the current arrangement by not being obliged to account for or pay for environmental externalities it imposes on the GBRMP and GBRWHA. The industry would lose this benefit under some of the options considered.
* State and Local Governments in Queensland could be directly affected in that developments under their jurisdiction would be the subject of the proposed regulatory regime. Some additional coordination with the GBRMPA would therefore be required.
Considerations of Options
Consideration of the options could be limited to options 1 (status quo), 2.1.2 (Regulations with existing facilities exempt) and 3 (negotiation regarding State processes) for the purposes of the costs and benefits analysis.
The remaining options have not been considered for the following reasons:
* Option 2.1.1 (Regulation applying to all aquaculture facilities adjacent to the GBRMP) fails to account for the impost on existing aquaculture facilities which are undertaking aquaculture activities as licensed by Queensland but which could require a permit under the new Regulations. Workable arrangements with Queensland could not be achieved if natural justice was not afforded to existing aquaculture facilities. As these facilities represent only a small fraction of the future industry, the effective management of the aquaculture at this early stage by the Commonwealth will effectively reduce the risk of environmental damage to the Great Barrier Reef.
* Option 2.2 (Proclamations pursuant to the World Heritage Properties Conservation Act 1983) is limited by the reactive nature of the making of such proclamations which makes this regulatory tool unsuitable as an instrument for environmental management. The World Heritage Properties Conservation Act 1983 is soon to be superseded by the Environment Protection and Biodiversity Conservation Act 1999.
* Option 2.3 (Total prohibition) is unacceptable to the aquaculture industry and is not supported by the of the Commonwealth.
* Option 2.4 (Highly prescriptive mechanisms of licensing) is not cost effective in terms of monitoring and enforcement.
* Option 2.5 (Polluter pays) is unsuitable due to the complex nature of the threats presented by aquaculture discharge. Whilst this mechanism could possibly be useful to limit total nutrient loads it would not address issues of the discharge of infectious disease agents, chemical compounds, and translocation of genetic material and organisms.
* Option 2.6 (Auctioning of pollution credits) also fails to account for the potential impact of infectious diseases, chemical compounds, and the translocation of genetic material and organisms.
* Option 3.2 (Codes of practice) these codes are voluntary and fail to guarantee security that direct threats to the GBR would be stringently addressed, ie. there is no regulatory safety net.
The advantages and disadvantages of the preferred options are discussed in detail in Table 1.
Table 1. Advantages and disadvantages of Options 1.1, 2.1.2 and 3
Option 1.1 | |
Continue with Status Quo | |
Benefits |
Costs |
| Low
cost to the Commonwealth. Maintenance of historic arrangements with Queensland regarding the planning and management of aquaculture. Short term benefits derived from regional expansion of the aquaculture industry.
|
Costs
to the community from the degradation of the GBR from adverse aquaculture
impacts, as indicated by strong support for measures to manage these impacts.
Costs to users of the Marine Park, such as recreational and commercial fishers, tourist operators, tourists etc who rely on the ongoing health of the ecosystem. A potential risk of pollution and disease from unregulated development, to the on-going viability of the aquaculture industry. Future abatement costs are potentially much higher than the sum of incremental costs, as cumulative impacts on the Marine Park surpass a critical level, with possible decimation of some marine populations. Costs to local adjacent communities in the long term from the potential loss of reliant industries such as tourism. Costs associated with not meeting World Heritage obligations to protect, conserve, present and transmit the GBRWHA to future generations. Poor community perception of the aquaculture industry.
|
Option 2.1.2 | |
| Regulatory
Option (for new proposals) Regulations under the GBRMP Act
| |
Benefits |
Costs |
| Regulatory
safety net to for the protection of animals and plants in the GBRMP and GBRWHA
by minimising the risks, with benefits for most stakeholders. Certainty that a full and transparent environmental assessment would be conducted for new aquaculture proposals adjacent to the GBR and that effluent discharge standards would be met. Speedy and cost efficient for industry proponents if GBRMPA is included at the front of the assessment process. Benefits Australia's international standing by fulfilling obligations associated with the GBRWHA that are not addressed by the status quo. A phasing in period for existing facilities, under Queensland Law, to mitigate the financial impost of the rapid introduction of the new regulatory requirements.
|
Increased
requirements on the aquaculture industry to mitigate effluent discharge (as
detailed in Table 2) Costly and delaying for the industry proponent if GBRMPA's assessment is not concurrent with the State process. Increase in resources required for impact assessment of aquaculture adjacent to the Marine Park. Environmental risk to the Great Barrier Reef would continue if Queensland's review and amendment of existing aquaculture facilities is inadequate. Has the potential to be anti-competitive if Queensland's review and amendment of existing aquaculture facilities is inadequate. Could affect Commonwealth/State relations.
|
Option 2.1.2 | |
| Regulatory
Option (for new proposals) Regulations under the GBRMP Act
| |
Benefits |
Costs |
| Regulatory
Option 2.1.2 Gives greater regulatory protection to the GBRMP than option 2.1.2
|
Unacceptable
to existing industry because it introduces new rules for facilities that are
already in operation.
|
Option 3.1 | |
| Non-regulatory
Option Negotiations with the Queensland Government to achieve both integrated and accredited outcomes
| |
Benefits |
Costs |
| Advantages
of the Commonwealth and State engaging in a collaborative approach for
aquaculture development assessment and planning.
|
Increase
in resources required for liaison with State regulators. Lacks certainty for users of the GBRMP and GBRWHA that the negotiated process prescribed would translate into tangible regulations that would continue to meet Commonwealth requirements. Queensland has indicated it will not agree to apply Commonwealth standards in relation to some facilities. Delays achieving this option could result in further adverse environmental impacts due to unregulated development. A potential risk of pollution and disease from unregulated development, to the on-going viability of the aquaculture industry.
|
How would each proposed option affect existing regulations and the roles of existing regulatory authorities?
Status Quo (Option 1.1)
No change from the current position.
Regulatory Option (Option 2.1.2)
The option of implementing regulations (under the GBRMP Act) to manage new aquaculture activities adjacent to the Marine Park would affect the role of the GBRMPA. At present the GBRMPA has no existing regulatory role in these matters and is reliant on the Queensland regulatory process to control discharges into waters adjacent to the GBRMP that could affect animals and plants in the Marine Park. Queensland is also expected to uphold the requirements and obligations of the Commonwealth in relation to pollutant discharge to the GBRWHA. The permitting of aquaculture adjacent to the GBRMP and GBRWHA would occur concurrently and parallel to the State regulatory process providing the GBRMPA permitting process is initiated at the same time as the State process.
This option would significantly increase the GBRMPA's capacity to ensure the water quality and ecological integrity of the nearshore areas of the GBR are through direct permitting or through accreditation of Queensland processes. This option would also afford certainty to the Commonwealth and the community to meet Australia's international obligations independent of State interests.
Existing aquaculture facilities would be exempt from the regulations. These facilities could be subject to licensed review by Commonwealth and Queensland agencies under Queensland Law. Existing licenses would need to be amended as required to meet the effluent discharge criteria consistent with the new regulatory requirements. New operators would be permitted by the Regulations and would be required to meet regulatory requirements for effluent discharge. If the Queensland agencies fail to successfully review and amend existing license arrangements, then new aquaculture operators would be competitively disadvantaged. Additionally, failure of existing operators to comply to new standards would present an ongoing environmental risk to the Great Barrier Reef.
To ensure equity between the parties, both existing and new, it is important that there is recognition of the operating rights of existing facilities. Queensland has assured the Commonwealth that it would phase in the new amendments, to minimise the financial and operational impacts on the existing operators while still achieving the environmental requirements of the Commonwealth. If Queensland fails to meet this obligation then amendment to the regulation would be necessary to capture existing aquaculture facilities.
Non-regulatory Option (Option 3.1)
The option of negotiation with the Queensland Government to adequately manage the effects of aquaculture operations on the adjacent GBRMP and GBRWHA leaves responsibility for the impacts with the State of Queensland. This option is reliant on a receptive disposition of the State for the necessary adjustments to the existing State regulatory regime for aquaculture. Queensland has indicated it will not meet the Commonwealth's requirements in relation to at least some projects. This option is also reliant on a cooperative and timely exchange of technical and process information and methodology. This option could be constrained by the unwillingness of the State to pursue compliance from the aquaculture industry to the necessary Commonwealth standards.
Identify and categorise the expected impacts of the proposed options as likely benefits or likely costs, and attribute to particular groups where applicable.
There are positive impacts of the preferred regulatory option in terms of conservation, social well being, equity for users and certainty of outcomes.
Table 2. Benefits and Costs to Particular Groups of Regulatory Option (Option 2.1.2)
The costs and benefits of the non regulatory options have not been considered in Table 2, as this option currently fails to meet the stated objectives for the management of the aquaculture adjacent to the GBRMP and GBRWHA.
Implications of Competition Principles Agreement
The objectives of the Regulations do not restrict access of legitimate aquaculture business interests and investment capacity within the industry. Environmental discharge performance criteria are a requirement for all arrangements associated with future significant aquaculture activities as prescribed by the Regulations.
The benefits derived from the introduction of the Regulations for future significant aquaculture will be realised due to the potential future expansion of the aquaculture industry. Recent studies have identified over 46,428 hectares of potential aquaculture sites adjacent to the Great Barrier Reef. To date only some 400 hectares are currently operating aquaculture facilities.
Clearly, there are substantive benefits to effective regulation of the industry at this early stage.
For existing aquaculture facilities a phasing in period, under Queensland Law will be required, to mitigate the impacts of retrofitting technology as required to meet the new regulatory requirements. New facilities have the capacity to modify infrastructure planning to meet these requirements prior to actual construction.
Action by the Commonwealth to regulate existing facilities, which have been permitted under Queensland Law, has the potential to be delayed by legal actions and hence increase the ongoing environmental risk to the Great Barrier Reef.
Currently, under Queensland assessment processes competition is restricted by requiring full and transparent IAS process for aquaculture developments in twelve shires adjacent to the GBRMP while exempting aquaculture developments in the remaining eight Local Government regions.
Identify distributional effects and attribute these to the groups affected.
Under the status quo the aquaculture industry is not fully accountable for hazardous discharge into the Marine Park or waters contiguous with the Marine Park. User groups of the GBRMP and GBRWHA which are reliant on the ongoing health of the marine ecosystem are disadvantaged by environmental degradation due to the actions of, in this case, the aquaculture industry. The current State regulatory mechanisms do not ensure the ongoing health of the GBRMP and GBRWHA and fail to provide certainty to the community that full environmental assessment of aquaculture activity is made and community consultation undertaken.
The formulation of regulatory measures under the GBRMP Act would provide equity for user groups of the Marine Park and transfer accountability of pollution and responsibility for pollution mitigation back to the aquaculture industry.
Identify the data sources and assumptions used in making these assessments.
1. Data and assumptions for the forgoing assessments were derived from:
(a) Internal report commissioned by the GBRMPA on the Impact of Aquaculture on the GBRWHA-Jurisdictional and Legislative Constraints.
(b) Liaison and discussions with Queensland State Government; Dept State Development, Dept of Local Government and Planning, Environment Protection Agency and Primary Industries.
(c) Liaison and discussions with Local Government.
(d) Relevant State legislation.
(e) Relevant Commonwealth legislation.
(f) Burdekin to Broadsound Aquaculture Study.
Consultation
The issues of aquaculture impacts were discussed in general with the community at large and with representative user groups such as Sunfish (recreational fishing representative group), marine and coastal tourism groups and the Queensland Commercial Fishermen's Organisation (QCFO), the Queensland State regulatory authorities, the aquaculture industry (in particular the Australian Prawn Farmers' Association), groups associated with aquaculture such as consultants and seafood marketing agents have been canvassed.
Information derived from that consultative process established the framework for the options:
(a) Submissions to GBRMPA from community groups regarding aquaculture proposals;
(b) Liaison and discussions with Australian Prawn Farmers' Association;
(c) Liaison and discussion with Sunfish and QCFO,
(d) Liaison and discussions with aquaculture proponents and the representative consultants and marketing agents;
(e) Liaison and discussion with representatives from marine and coastal tourism groups; and
(f) Liaison with indigenous groups apropos aquaculture proposals.
Structured detailed negotiations with Queensland agencies, have occurred with the aim of determining the options for a workable assessment and management processes for aquaculture. These negotiations have highlighted the mechanisms for adjustment to Queensland's assessment and management process for aquaculture adjacent to the Great Barrier Reef. Consequential amendments to Queensland processes enhances the potential for accreditation by the Commonwealth under the Regulations
The draft Aquaculture Regulations were released for public consideration in September 1999. Primary amendments were made to the Regulations (eg the exclusion of existing aquaculture operations) and a second round of public consultation undertaken. Subsequent consideration of the public consultation resulted in further amendments to the draft Regulations including amendments to address issues raised by the industry and the Queensland Government.
The Commonwealth would develop a communication strategy for public extension and education in collaboration with the Queensland Government.
Who are the main affected parties?
The main affected parties are the aquaculture industry, those directly associated with the aquaculture industry such as consultants and marketing agents and those who are impacted on by the aquaculture industry.
What are the views of those parties?
1. Aquaculture Industry
Representations from the aquaculture industry focus on:
(a) The inequitable targeting of the industry by Commonwealth Authorities. They recognise that aquaculture has a potential to pollute but point out that aquaculture is a minor contributor when compared to other land use such as sugar and cotton production.
(b) Limitations on effluent discharge cannot be generic as intake water is often of poor quality due to the actions of other unregulated industries.
(c) High costs to industry of effluent mitigation for no direct benefit.
(d) Mitigation technology is new to the Australian aquaculture industry and subsequently not well proven.
(e) Recognised that there are benefits from increased efficiency of inputs such as feeding rates.
(f) Object to the potential for the Regulations to require permitting and conditioning on significant expansions of existing aquaculture facilities.
2. Those associated with the aquaculture industry.
Representation from those associated with the aquaculture industry highlighted:
(a) The involvement of the Commonwealth in regulation was another layer of bureaucracy and increased red tape.
(b) There are marketing advantages particularly for export if the production from aquaculture is ecologically sustainable and protects the health of the Great Barrier Reef.
3. Community and downstream users impacted by the aquaculture industry.
Representation from the community and specific user groups focused on:
(a) The need for coastal tourism to have unpolluted waters and healthy inshore fisheries.
(b) The need for consultation with parties that are affected by a significant aquaculture development in their area.
(c) The conservation of the near shore regions of the GBR.
Conclusion and recommended options
Provide a summary of assessment of each option.
What is the preferred option?
1. The making regulations under the GBRMP Act.
The objective is to make it an offence to discharge aquaculture waste into waters that are contiguous with waters of the GBRMP. However, aquaculture could be carried out as authorised by a Queensland Law that has been accredited by the Commonwealth Environment Minister. Smaller aquaculture operations and aquaria are either exempt or their operators are obliged to report periodically to the Authority. The rest of the Regulations set out laws in relation to applications to the Authority for permits to discharge aquaculture waste, and makes provisions for enforcing the Regulations and the conditions of permits.
Performance standards would be achieved through appropriate permit conditions determined through the assessment of proposals in accordance with criteria laid down in the Regulations.
Existing aquaculture facilities would be exempt from the regulation, but subject to licence review and amendment where necessary to meet uniform environmental criteria.
Briefly outline the main assumptions on which the conclusion rests.
1. The main assumptions are:
* individual impact assessment of aquaculture proposals would limit and control the effect of discharges on the adjacent GBRMP and GBRWHA;
* appropriate auditing and compliance monitoring of regulated aquaculture developments would ensure conditions for discharges are complied with;
* longer term strategic planning would take account of cumulative impacts;
* overall public support for the proposed regulatory regime.
Why is this option preferred and others rejected?
The regulatory option offers certainty for the prescribed outcomes that cannot be guaranteed simply through negotiation with the Queensland Government. The option represents a safety net to ensure the environmental sustainability of the aquaculture industry and the ecological protection of the Great Barrier Reef. This option allows for on going viability of the aquaculture industry and meets the intent of the Commonwealth in this instance. Other options were not viable because the Queensland Government indicated it would not take action to ensure Commonwealth standards are met in relation to some facilities.
How would the preferred option be implemented?
The proposed Regulations provide for immediate application of the regulatory scheme to proposed aquaculture developments, which discharge within the defined area to waters contiguous with water of the GBRMP. Proposed aquaculture developments would be subject to a full and transparent environmental assessment, permitting and conditioning process to Commonwealth standards.
Inspectors under the Great Barrier Reef Marine Park Act, including officers from the Queensland Environmental Protection Agency, the Queensland Boating and Fisheries Patrol, Queensland Police and the Australian Federal Police would be entitled to take enforcement action against non-complying aquaculture operations.
Existing operators will be subject to Queensland Law, including inspections by officers from the Queensland Environmental Protection Agency, the Queensland Boating and Fisheries Patrol, Queensland Police would be entitled to take enforcement action against aquaculture operations not complying with discharge standards.
A communication strategy would be developed for public extension and education in collaboration with the Queensland Government.
Is the preferred option clear, consistent, comprehensible and accessible to others?
Is it sufficiently flexible to adapt to various situations and circumstances?
The proposed Regulations would require a full and transparent environmental impact assessment, which meets Commonwealth standards, of significant aquaculture developments adjacent to the GBRMP and GBRWHA. This is not flexible, although there is some flexibility in relation to the levels of assessment that can be applied.
The performance based standards for individual proponents would be developed through site-specific criteria, hence this process is flexible.
The Regulatory Scheme allows the Commonwealth Minister to accredit the Queensland management regime after consideration of the manner in which the Queensland management regime protects the GBRMP and GBRWHA and complies with Australia's obligations under international law. In considering these matters the Minister is entitled to also take account of the manner in which the Queensland management regime is administered.
The proposed regulatory scheme contains a degree of flexibility to ensure protection of the GBRMP and the GBRWHA.
What is the impact on business, including small business, and how would compliance and paper burden costs be minimised?
The impact on the aquaculture industry has been addressed in Table 2.
Additional cost would be incurred by significant proposed aquaculture developments that do not currently anticipate the need for a full and transparent IAS process under the existing Queensland regulatory regime.
Increases in capital and operating costs are a disincentive to any small business. However, the costs are not economically prohibitive to a viable aquaculture operation.
Increases in capital costs are a disincentive to any small business. However, the costs are not prohibitive to economic viability, e.g. a well operating hectare of prawn pond may yield on average approximately $60,000 with operation costs of approximately $30,000 to $40,000 per year. A `one off' capital cost of $10,000 for a mitigation pond may be amortised over 8-10 years.
Paper burden costs would be minimised by provisions in the Regulations enabling accreditation of State processes, thereby minimising duplication and associated paper burden. Concurrent assessment of significant aquaculture developments by GBRMPA and the State would reduce the paper burden of Commonwealth intervention occurring in late stages or following completion of the IPA process.
Compliance cost associated with independent auditing would be the responsibility of the industry proponent.
How would the effectiveness of the preferred option be assessed? How frequently?
A number of tools can be utilised by both the Commonwealth and the State to assess the effectiveness of the preferred regulatory option. The primary tools would be:
* continued scientific monitoring and surveys of receiving waters;
* review and analysis of current research into aquaculture management and effluent mitigation;
* State of the Reef Environment Reports;
* surveillance and monitoring as a function of management by the State;
* analysis of compliance levels with regulations;
* ongoing consultation with users and stakeholders in the Marine Park; and
* review of administrative decisions made under the Regulations by the Administrative Appeals Tribunal or under Administrative Decisions Judicial Review.
If the preferred option takes the form of regulation, is there a built-in provision to review or revoke the regulation after the regulation has been in place for a certain length of time.
The current objectives of the Great Barrier Reef Marine Park Act (and the obligations under international law) require the ongoing protection and conservation of the Marine Park. There should be no necessity to review or revoke the measures implemented, other than possibly for minor amendments from time to time. However, the GBRMPA notes that when the Legislative Instruments Bill is enacted there would be obligatory review of statutory regimes.
The Regulations confers to GBRMPA the capacity to regulate and manage aquaculture adjacent to the GBRMP and GBRWHA. The process is prescribed in the Regulations; industry based mechanisms to attain the performance based standards are not specified.
However, it will be necessary to review whether the different treatment of existing and new operators is both justified and effective in addressing the environmental threat from aquaculture at some time in the future. GBRMPA will undertake a review of the effectiveness of the Aquaculture Regulations and the Queensland arrangements in 2003 and will report to the Commonwealth Minister for Environment and Heritage.
Attachment
9 February 2000
Ms Sheriden Morris
Great Barrier Reef Marine Park Authority
Dear Ms Morris
Regulation Impact Statement (RIS) for:
Great Barrier Reef Marine Park Act 1915:
Great Barrier Reef Marine Park (Aquiculture) Regulations 2000
The revised Regulation Impact Statement provides an adequate level of analysis and complies with the Government's regulatory requirements.
Sue Holmes
Director
