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ADELAIDE DOLPHIN SANCTUARY BILL
The Hon. J.D. HILL (Minister for Environment and Conservation) obtained leave and introduced a bill for an act to establish a sanctuary to protect the dolphin population of the Port Adelaide River estuary and Barker Inlet and its natural habitat; to provide for the protection and enhancement of the Port Adelaide River estuary and Barker Inlet; to amend the Aquaculture Act 2001, the Coast Protection Act 1972, the Development Act 1993, the Environment Protection Act 1993, the Fisheries Act 1982, the Harbors and Navigation Act 1993, the Historic Shipwrecks Act 1981, the Mining Act 1971, the National Parks and Wildlife Act 1972, the Native Vegetation Act 1991 and the Petroleum Act 2000; and for other purposes. Read a first time.
The Hon. J.D. HILL: I move:
That this bill be now read a second time.
I seek leave to insert the second reading explanation in Hansard without my reading it.
Today I am very pleased to introduce to this place the Adelaide Dolphin Sanctuary Bill 2004. Increasing protection for the dolphins living in the Port Adelaide River and Barker Inlet area is an important step in the Government's innovative program to provide for the long term preservation of South Australia's diverse and significant marine environment.
Over the next several years the Government looks forward to introducing additional measures to strengthen the protection of the marine environment. The Department for Environment and Heritage is currently developing initiatives to:
× establish marine protected areas; and
× implement a marine planning system which will provide the community and industry with the necessary guidance for the ecologically sustainable use and development of the marine environment; and
× provide broad integration of South Australia's marine and coastal management through new and innovative legislation.
The purpose of this measure is to protect the dolphins and their habitat within the Port Adelaide River and Barker Inlet area. This protection will be achieved by establishing the means to integrate the management of this area utilising a meaningful environmental reference. Management integration is necessary because of the complex, interrelated activities in the Port district. A range of state and local government agencies, industries, and community users all conduct operations in the area. While these operations may be well managed individually, to date there has been no mechanism to evaluate, manage and regulate the cumulative effect of the combination of them all to ensure planning efficiency and the ecological sustainability of the region. While a specific activity may be sustainable on its own, combining that activity with those in other sectors may mean the ecosystem is over burdened and resources are inequitably allocated.
The Port Adelaide River and Barker Inlet area is very important to South Australia. It supports a broad range of activities and this diversity sometimes results in conflicting operational requirements. Economically, the area is home to billions of dollars worth of assets with industries such as Penrice, Adelaide Brighton Cement, Australian Submarine Corporation, Flinders Ports and major power companies operating in the area. These industries provide significant capital and jobs to the State's economy. In the future, plans are in place to dredge at Outer Harbor, develop the freight corridor for rail, and expand the roadways with the Port River Expressway Project, making the Port a true international gateway for trade and tourism. The planning process for the proposed Port Adelaide Redevelopment Project is also continuing with a potential expenditure of $900 million in construction work and up to 2000 on site jobs created.
The region is renowned for its Aboriginal and European heritage significance. Kaurna people lived in the area for thousands of years before European settlement and tours are available to take people to see connections still existing to this traditional way of life. Port Adelaide was settled by Europeans in 1840 and is now the state's first heritage listed precinct, proclaimed in 1982, and is also home to the largest and most diverse ships' graveyard in Australia. Along with these heritage values, this region is a place many people today value for recreational activities including fishing, boating and bird watching.
Environmentally, this area is a highly significant nursery and breeding area for a number of species, including King George whiting, garfish, bream, mulloway and also blue swimmer crabs and western king prawns. These species are valuable both as part of this ecosystem and also to the state's economy both commercially and for the recreational fishing industry.
The Port Adelaide River mouth and Penrice salt fields have been identified as areas of international importance for shorebirds. The Barker Inlet is one of the few remaining functioning estuaries located within a major city precinct in Australia.
Finally, of course, the Port Adelaide River and Barker Inlet is home to a resident population of dolphins. It is estimated that 20 to 30 dolphins are consistently seen in the Port Adelaide River and Barker Inlet area and over 300 more have been identified as visitors. Although dolphins are regularly seen all along the greater Adelaide metropolitan coast, Port Adelaide is one of the few places in the world where bottlenose dolphins appear to live in such close proximity to a major city and its associated activities.
The intent of the Adelaide Dolphin Sanctuary Bill 2004 is not to create new regulatory requirements for the area. Rather, it is intended that the Bill will provide focus and specific purpose for the enforcement of existing legislative requirements. Cooperation between State Government agencies, local councils, industries and community members will be the key to making the Adelaide Dolphin Sanctuary a success.
Land tenure within the Sanctuary will not be altered. Existing tenures and uses such as mining leases, parks, and harbour and sea bed management will not be affected. The Sanctuary Minister will be responsible for the coordination of activities, but will not take on the responsibility of ownership of land or the seabed.
Seven strategies for implementation
Seven key strategies will underpin the implementation of this legislation.
First, the Bill specifies clear objects and objectives to ensure that the goals of the Act can be transparently understood and achieved.
Second, 11 existing Acts fundamental to activities in the Port Adelaide River and Barker Inlet environment are proposed for amendment. These amendments will require the respective Acts to have regard to or seek to further the objects and objectives of the Adelaide Dolphin Sanctuary when making decisions about activities which will impact on the Sanctuary. The Ministers responsible for the administration of these Acts will be required to undertake appropriate degrees of consultation with the Sanctuary Minister when administering these relevant operations.
The Acts proposed for amendment are:
the Aquaculture Act 2001
the Coast Protection Act 1972
the Development Act 1993
the Environment Protection Act 1993
the Fisheries Act 1982
the Harbors and Navigation Act 1993
the Historic Shipwrecks Act 1981
the Mining Act 1971
the National Parks and Wildlife Act 1972
the Native Vegetation Act 1991
the Petroleum Act 2000.
Third, the Bill proposes two avenues for planning clarity and accountability. A Management Plan will be required within a year of proclamation of this measure. The Plan will establish priorities for Government actions and detail targets of activity for agencies. This Plan will be supported by an annual implementation program which will be a part of the Sanctuary Minister's annual report to Parliament. Both of these planning mechanisms will ensure that Sanctuary planning is accessible and accountable to members of the wider community.
The fourth strategy of the Bill is to establish an Advisory Board to provide the Sanctuary Minister with expert advice on the implementation and assessment of these plans.
The fifth strategy provides for the establishment of a fund to receive monies to assist the Minister for the Sanctuary to further the objects and objectives of the legislation.
The sixth strategy is to create a general duty of care as a safety net to catch any activities harmful to dolphins or their habitat that may not be covered by existing legislation. The amendments to the Fisheries Act 1982 and the National Parks and Wildlife Act 1972 will provide still more protection for the physical well being of the dolphins.
Finally, the Bill will require the Sanctuary Minister to work broadly within the community to recognise and respect existing users of this environment, while utilising the community's strong commitment and interest in dolphins to educate and promote the protection of these animals and their habitat.
Specific features of the Bill
Integration of Government agencies' actions
Integration of the administration of the range of Acts relevant to the area is essential for successful management of the Sanctuary. The Bill recognises the significance of this integration and addresses it in clause 6(2) (Act binds the Crown) clause 9 (Administration of the Act to achieve objects and objectives), clause 25(d) (Functions and powers of Minister) and in the amendments to the related Acts.
Objects and objectives (clauses 7 and 8)
The objects and objectives are fundamental to the functioning of this legislation. Through amendments to the relevant Acts, they are the principal means of making the administration of all these Acts consistent. They also define the aims for the Sanctuary and provide a base on which to measure performance.
As a result of public consultation, some changes have been made to the objects and the objectives; however, the fundamental aim remains the same to protect the dolphins and their habitat. Refinements have been made to make the objects and objectives more specific to dolphins and more connected to the functions and duties of the Minister as set out in clause 25.
Management Plan (clause 11)
The Management Plan will describe the overall strategy for the Sanctuary by defining key issues requiring attention, identifying those specific Government agencies with responsibility for these issues, and establishing targets for implementing remedies. The Plan is to be reviewed at seven year intervals to accommodate the time scales over which significant changes can be expected to occur. However, the Plan can be amended any time within this period, if required.
The Plan will be supported by the annual implementation program. The implementation program will review accomplishments from the preceding year and determine specific priorities for the coming year. It will provide the means for Sanctuary planning to respond to unexpected developments and time sensitive issues.
Public consultation on the Plan is very important to its success. In response to public submissions, amendments have been made to the Bill to increase the transparency of the consultation process.
Advisory Board (clause 12)
The role of the Advisory Board is to advise the Minister on the preparation of the Management Plan and to advise the Minister on its effectiveness after it is implemented. An additional Advisory Board function has been added to require the Board to provide advice on expenditure of money in the Fund (clause 22).
A number of public submissions suggested greater clarity for the appointment process for Board members and changes have been made to achieve this increase in transparency, along with several minor changes to improve administration of the Board's activities.
The ongoing administration of the Sanctuary will be undertaken by the Minister and officers from the Department for Environment and Heritage.
Functions and powers of the Minister (clause 25)
This section defines the functions and powers of the Minister and emphasises the importance of working with the community through consultation and education programs. The Minister will be required to act to integrate the administration of the Adelaide Dolphin Sanctuary Act with other relevant Acts and also to promote monitoring and research programs for the Sanctuary.
Powers of authorised officers (clause 29)
These powers of authorised officers are to be used only in the enforcement of the general duty of care. It is not expected that this provision will be frequently used. Most of the compliance actions for the Sanctuary will be provided by enforcement of the amended Acts.
After evaluation of public submissions, some amendments to improve operational efficiency have been made.
General duty of care (clause 32)
It is expected that the activities which may be regulated within the Sanctuary will largely be covered under existing legislation. To date, Department for Environment and Heritage officers have not identified any activity which would be addressed by the general duty of care.
Protection and other orders (Part 6)
Provision for protection and reparation orders and reparation authorisations has been made in the event compliance with the general duty of care is required. These measures are included to provide certainty for the administration of the Act.
Provisions relating to official insignia (Part 7)
This Part provides protection for the use of official insignia which may be created to support the operations of the Sanctuary and prescribes penalties for any misuse of this insignia.
Native title (clause 46)
Clause 46 provides assurance that nothing done under the Act will affect native title in land or water unless it is covered under a relevant law of South Australia or the Commonwealth Native Title Act 1993. Kaurna people have a registered native title claim over the area encompassed by the Sanctuary.
Definition of the Sanctuary (Schedule 1)
The boundaries were determined to both largely encompass the resident dolphin population and their habitat and to ensure members of the public and authorised officers can readily locate and patrol the boundaries. This habitat includes places where dolphins can physically swim and also tidal areas where their food sources may be found.
Most of the land borders are determined by sea water levee banks and the mean high water mark.
Mutton Cove and reclaimed Crown land at the St Kilda boat ramp are included, along with Port Gawler Conservation Park and some adjacent Crown land to mean high water mark for ease and consistency of management planning.
All land above high water mark within Sanctuary waters will be included Torrens and Garden Islands (including Torrens Island Conservation Park) and the small unnamed island off Outer Harbor known as Bird Island.
Related amendments to other Acts (Schedule 2)
The 11 acts have been amended as relevant to each Act's responsibilities within the Sanctuary. Most activities require the relevant ministers of these acts to consult with and have regard to the Sanctuary Minister's advice on any proposed activity. The three Acts which might potentially be responsible for changes in land use the Aquaculture, Mining and Petroleum Acts require the concurrence of the Sanctuary Minister before initiating new activities under these Acts.
One of the amendments to the National Parks and Wildlife Act 1972 bans hunting within the Sanctuary. The maximum penalties prescribed by this Act and the Fisheries Act 1982 for harming marine mammals, including dolphins, are increased from $30 000 to $100 000.
In addition, the Management Plan may identify a need and consequently recommend amendments to regulations under any of the 11 related operational Acts.
A number of public submissions raised concerns and questions about how actions taken under the Development Act will be managed in relation to the Sanctuary. Any development within the Sanctuary, or one that will have a direct or significant impact on it, will require consultation with the Sanctuary Minister. After the form and substance of the Management Plan is determined, and after the Development (Sustainable Development) Amendment Bill 2004 is finalised, opportunities to provide more direct links between the two Acts will be explored, including the possibilities of alterations to applicable PARs and amendments to Schedule 8 referrals.
Preliminary public consultation on the establishment of the Adelaide Dolphin Sanctuary was held in 2002. Over 450 public submissions were received and approximately 250 people attended five public information meetings.
The draft Adelaide Dolphin Sanctuary Bill 2003 was released for a two month public consultation period in December 2003. Seventeen written submissions were received. A public information meeting was also held in Port Adelaide in January 2004.
A ministerial Steering Committee has reviewed the public submissions and formulated its own recommendations about changes to the draft Bill which were presented to the Minister for Environment and Conservation for consideration.
The Government appreciates the time and effort members of the Steering Committee and members of the public have contributed to this process so far. Public and targeted consultation will continue as the Sanctuary is further developed.
The Adelaide Dolphin Sanctuary Bill 2004 is this Government's response to the community's desire to offer greater protection to the Port Adelaide dolphins and their habitat. It is also a direct reflection of the community's wider desire to care for our environmental heritage.
I commend this Bill to the House.
Explanation of Clauses
These clauses are formal.
This clause contains definitions and other interpretative provisions.
4Interaction with other Acts
This clause provides that the measure is in addition to and does not limit or derogate from the provisions of any other Act.
5Related operational Acts
This clause prescribes certain Acts as related operational Acts and provides for additional Acts to be prescribed as such by regulation.
6Act binds Crown
This clause provides that the measure binds the Crown in right of the State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown.
It also provides that all agencies and instrumentalities of the Crown must endeavour, as far as practicable, to act consistently with the Adelaide Dolphin Sanctuary Management Plan.
Part 2Objects of Act and statutory objectives
This clause provides that the objects of the measure are to protect the dolphin population of the Port Adelaide River estuary and Barker Inlet and to protect the natural habitat of that population.
This clause sets out the objectives that will apply in connection with the operation of the measure.
9Administration of Act to achieve objects and objectives
This clause requires the Minister, the Advisory Board, the Environment, Resources and Development Court and other persons or bodies involved in the administration of the measure, and any other person or body required to consider the operation or application of the measure to act consistently with, and seek to further, the objects and objectives of the measure.
Part 3Adelaide Dolphin Sanctuary
10Establishment of Adelaide Dolphin Sanctuary
This clause establishes a sanctuary to be called the Adelaide Dolphin Sanctuary.
The Sanctuary consists of the area defined in Schedule 1.
The clause empowers the Governor to alter the boundaries of the Sanctuary by regulation but such a regulation cannot take effect unless and until it has been laid before both Houses of Parliament and
(a) no motion for disallowance of the regulation is moved within the time for such a motion; or
(b) every motion for disallowance of the regulation has been defeated or withdrawn, or has lapsed.
Division 2Adelaide Dolphin Sanctuary Management Plan
11ADS Management Plan
This clause requires the Minister to prepare a management plan for the Sanctuary within 12 months of the commencement of the measure.
The plan must set out
(a) the proposals of the Minister in relation to the management of the Sanctuary; and
(b) the priorities that the Minister will pursue in order to achieve the objects and objectives of this Act in relation to the Sanctuary.
The plan must be reviewed at least once in every 7 years and the Minister may amend the plan at any time.
The plan is an expression of policy and does not in itself affect rights or liabilities (whether of a substantive, procedural or other nature).
Division 3Adelaide Dolphin Sanctuary Advisory Board
12Establishment of ADS Advisory Board
This clause establishes the Adelaide Dolphin Sanctuary Advisory Board and provides for it to consist of 11 members appointed by the Governor on the nomination of the Minister. The membership must include persons who together have, in the Minister's opinion, knowledge of, and experience in, a number of specified areas. The Minister must not nominate a person for appointment unless of the opinion that the person has a commitment to the protection and enhancement of the Port River estuary and Barker Inlet. At least 2 members must be women and at least 2 must be men.
This clause requires the Minister to appoint one of the members of the Advisory Board to be the presiding member of the Board.
14Terms and conditions of membership
This clause provides for a term of appointment not exceeding 3 years and for the reappointment of members and sets out the grounds on which the Governor may remove a member from office and the situations in which the office of a member becomes vacant.
15Vacancies or defects in appointment of members
This clause provides that an act or proceeding of the Advisory Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.
This clause entitles a member of the Advisory Board to remuneration, allowances and expenses determined by the Governor.
17Functions of Board
This clause provides that the function of the Advisory Board is to advise the Minister on the following matters:
(a) the preparation of the ADS Management Plan and any amendments to the Plan; and
(b) the effectiveness of the ADS Management Plan in achieving the objects and objectives of the measure; and
(c) the effectiveness of the implementation program; and
(d) the application of money belonging to the ADS Fund; and
(e) any matter referred to the Board by the Minister; and
(f) any matter connected with the administration of the measure on which the Board believes it should advise the Minister.
This clause empowers the Advisory Board, with Ministerial approval, to establish committees to provide advice to the Board on matters referred to the committee by the Board.
This clause deals with the Board's procedures at meetings.
20Staff, facilities etc
This clause requires the Minister to make available to the Advisory Board such staff, facilities, information and assistance as it may reasonably require for the effective performance of its functions.
This clause requires the Advisory Board to prepare and deliver to the Minister an annual report on its operations. The Minister must table the report in both Houses of Parliament within 12 sitting days after receiving it.
Division 4Adelaide Dolphin Sanctuary Fund
This clause provides for there to be a fund kept in a separate account at the Treasury to be called the Adelaide Dolphin Sanctuary Fund. The fund will consist of money provided by Parliament or the Commonwealth Government for the purposes of the fund, grants, gifts and bequests made to the Minister for payment into the fund, proceeds from sales of goods forfeited to the Crown under the Act, income arising from investment of the fund and any other money required or authorised by law to be paid into the fund. The Minister may apply the fund to further the objects or objectives of the measure and in payment of expenses of administering the fund. Before applying the fund for the former purpose, the Minister must have regard to any advice provided by the ADS Advisory Board.
This clause requires the Minister to keep proper accounts in relation to the fund.
This clause empowers the Auditor-General to audit the accounts of the funds at any time and requires an audit to be carried out at least once in each year.
25Functions and powers of Minister
This clause sets out the functions and powers of the Minister under the measure. It requires the administration of the measure and the Coast Protection Act 1972 to be committed to the same Minister.
This clause requires the Minister to prepare an annual report on the operation of the measure. The report must, among other things, include a program setting out the Minister's proposals for the implementation of the ADS Management Plan for the current financial year. The Minister must table the report in both Houses of Parliament within 12 sitting days after its preparation.
27Power of delegation
This clause empowers the Minister to delegate functions or powers of the Minister under the measure.
Division 2Authorised officers
28Appointment of authorised officers
This clause empowers the Minister to appoint authorised officers for the purposes of the measure.
29Powers of authorised officers
This clause sets out the powers of authorised officers.
30Hindering etc persons engaged in administration of Act
This clause makes it an offence for a person to hinder an authorised officer, use certain language to an authorised officer, refuse or fail to comply with a requirement of an authorised officer, refuse or fail to answer questions to the best of the person's knowledge, information or belief, or falsely represent that the person is an authorised officer.
31Protection from self-incrimination
This clause provides that a person is not obliged to answer a question or to produce a document or record as required under this Part if to do so might tend to incriminate the person or make the person liable to a penalty.
Part 5General duty of care
32General duty of care
This clause imposes a duty on persons to take all reasonable measures to prevent or minimise any harm to the Sanctuary through their actions or activities. Breach of the duty is not, of itself, an offence, but compliance with the duty may be enforced by the issuing of a protection order under Part 6 and a reparation order or reparation authorisation may be issued under that Part in respect of the breach of the duty of care.
Part 6Protection and other orders
This clause empowers the Minister to issue a protection order to secure compliance with the general duty of care. If urgent action is required, an authorised officer may issue an emergency protection order, but the order expires after 72 hours unless it is confirmed by a protection order made by the Minister. Failure to comply with a protection order constitutes an offence punishable by a maximum penalty of $2 500 if the order was issued in relation to a domestic activity for the purpose of securing compliance with the general duty of care, or of $120 000 in any other case. The offence is expiable on payment of a fee of $250 if the order was issued in relation to a domestic activity for the purpose of securing compliance with the general duty of care, or of $500 in any other case. The clause also makes it an offence, punishable by a maximum penalty of $10 000, to hinder or obstruct a person complying with a protection order.
34Action on non-compliance with protection order
This clause empowers the Minister to take any action required by a protection order if the requirements of the order are not complied with, and to recover reasonable costs and expenses incurred by the Minister in doing so as a debt from the person who failed to comply with the order.
This clause empowers the Minister to issue a reparation order if the Minister is satisfied that a person has caused harm to the Sanctuary by contravening the general duty of care or a condition of a statutory authorisation that relates to an activity carried out within the Sanctuary. If urgent action is required, an authorised officer may issue an emergency reparation order, but the order expires after 72 hours unless it is confirmed by a reparation order made by the Minister. Failure to comply with a protection order constitutes an offence punishable by a maximum penalty of $50 000.
36Action on non-compliance with reparation order
This clause empowers the Minister to take any action required by a reparation order if the requirements of the order are not complied with, and to recover reasonable costs and expenses incurred by the Minister in doing so as a debt from the person who failed to comply with the order. If the amount owing to the Minister is not paid, the person is liable to pay interest on the unpaid amount and the unpaid amount, together with any interest to which the person is liable is, until paid, a charge in favour of the Minister on any land owned by the person in relation to which the order is registered under Division 2.
This clause empowers the Minister to issue a reparation authorisation if the Minister is satisfied that a person has caused harm to the Sanctuary by contravening the general duty of care or a condition of a statutory authorisation that relates to an activity carried out within the Sanctuary. Under the authorisation authorised officers or other persons may be authorised to take specified action on the Minister's behalf to make good any resulting damage to the Sanctuary. The Minister may recover reasonable costs and expenses incurred by the Minister in taking action as a debt from the person who caused the relevant harm. If the amount owing to the Minister is not paid, the person is liable to pay interest on the unpaid amount and the unpaid amount, together with any interest to which the person is liable is, until paid, a charge in favour of the Minister on any land owned by the person in relation to which the order is registered under Division 2
This clause provides that the Minister should, so far as is reasonably practicable, consult with any other public authority that may also have power to act with respect to the particular matter before the Minister issues a protection order, reparation order or reparation authorisation. However, this does not apply where action is being taken as a matter of urgency or in a circumstance of a prescribed kind. A person cannot claim compensation from the Minister, the Crown, an authorised officer or a person acting under the authority of the Minister or an authorised officer in respect of a requirement imposed under this Division, or on account of any act or omission undertaken or made in the exercise or purported exercise of a power under this Division.
Division 2Registration of orders and effect of charges
This clause provides for the registration of reparation orders and reparation authorisations relating to an activity carried out on land or requiring a person to take action on or in relation to land. An order or authorisation registered under this clause binds each owner and occupier from time to time of the land.
40Effect of charge
This clause provides that a charge imposed under Division 1 has priority over prior charges (whether registered or unregistered) that operate in favour of a person who is an associate of the owner of the land and any other charge registered prior to the registration of the relevant order or authorisation.
Division 3Appeals to ERD Court
This clause gives a person to whom a protection order or reparation order is issued a right of appeal to the Environment, Resources and Development Court.
Part 7Provisions relating to official insignia
This clause defines official insignia and makes other interpretative provisions.
43Declaration of logo
This clause empowers the Minister to declare a design to be a logo for the purposes of this Part.
44Protection of official insignia
This clause declares that the Crown has a proprietary interest in all official insignia and makes it an offence to use official insignia for commercial purposes without Ministerial consent. It also makes it an offence to assume a name or description consisting of or including official insignia without Ministerial consent. In each case a maximum fine of $20 000 is fixed. The Supreme Court is empowered to restrain breaches by granting injunctions to the Minister and a court by which a person is convicted of an offence against the clause may order the person to pay compensation to the Minister.
45Seizure and forfeiture of goods
This clause empowers an authorised officer to seize goods in relation to which official insignia has been used without Ministerial authorisation and provides that a court by which a person is convicted of an offence under clause 44 may order the goods to be forfeited to the Crown. The Minister may sell or otherwise dispose of forfeited goods. If sold, the proceeds of the sale must be paid into the ADS Fund. If goods are seized and proceedings for an offence are not commenced within 3 months or the defendant is not convicted, the person from whom the goods were seized is entitled to recover the goods, or to compensation if they have been destroyed equal to their market value, as well as compensation for any loss suffered by reason of the seizure.
This clause provides that nothing done under this measure will be taken to affect native title in any land or water unless the effect is valid under a law of the State or the Native Title Act 1993 of the Commonwealth.
This clause provides that no act or omission of the Minister or any other person engaged in the administration of the measure, or by another person or body acting under the authority of the Minister, undertaken or made with a view to
(a) exercising or performing a power or function under the measure; or
(b) protecting, restoring or enhancing the Sanctuary, or any aspect of the Sanctuary (including by exercising or performing a power or function under other legislation); or
(c) furthering the objectives of the measure (including by exercising or performing a power or function under other legislation),
gives rise to any liability against the Minister, person or body, or the Crown.
This clause provides that if a person is convicted of an offence that relates to a continuing act or omission, the person may be liable to an additional penalty for each day that the act or omission continued (but not so as to exceed one tenth of the maximum penalty for the offence).
49Offences by bodies corporate
This clause provides that if a body corporate commits an offence against the measure, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence where the offender is a natural person. A person may be prosecuted and convicted whether or not the body corporate has been prosecuted or convicted of the offence committed by the body corporate.
This clause provides a defence of a charge of an offence against the measure if the defendant provides that the alleged defence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
51Criminal jurisdiction of ERD Court
This clause provides that offences constituted by the measure lie within the criminal jurisdiction of the Environment, Resources and Development Court.
This clause makes it an offence for a person engaged or formerly engaged in the administration of the Act to divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except
(a)as required or authorised by law; or
(b)with the consent of the person to whom the information relates; or
(c)in connection with the administration of this measure; or
(d)to an agency or instrumentality of this State, the Commonwealth or another State or Territory for the purposes of the proper performance of its functions.
A maximum fine of $5 000 is fixed.
However, it is not an offence to disclose statistical or other non-identifying data.
Information disclosed under the clause for a particular purpose must not be used for any other purpose by the person to whom it was disclosed or any other person who gains access to the information as a result of that disclosure. A maximum penalty of $5 000 is fixed.
This clause sets out the manner in which notices, orders and other documents may be served.
This clause provides an evidentiary aid for proceedings for offences against the measure.
This clause empowers the Governor to make regulations for the purposes of the measure.
Schedule 1Adelaide Dolphin Sanctuary
This Schedule defines the boundaries of the Sanctuary.
Schedule 2Related amendments
This Schedule amends the related operational Acts specified in clause 5.
The amendments to the Aquaculture Act 2001 require aquaculture policies that apply to the Sanctuary to seek to further the objects and objectives of the ADS legislation and require the Minister to obtain the concurrence of the Minister for the Sanctuary before approving a draft policy that will apply within the Sanctuary.
The amendments to the Coast Protection Act 1972 require the Coast Protection Board to take into account and seek to further the objects and objectives of the ADS legislation when taking any action within the Sanctuary or action that is likely to have a direct impact on the Sanctuary. The amendments also require the Board to consult with and have regard to the views of the Minister in preparing or reviewing a management plan that could affect the Sanctuary.
The amendments to the Development Act 1993 provide that the Planning Strategy will be taken to include the objectives of the ADS legislation. Section 24 of the Act is amended to enable the Minister to make amendments to a Development Plan where the purpose is to promote the objects or objectives of the ADS legislation. Section 34 is amended to enable the Minister to declare that the Development Assessment Commission should act as the relevant authority in relation to a proposed development because, in the opinion of the Minister for the Sanctuary, the proposed development may have a significant impact on an aspect of the Sanctuary. Other amendments ensure that an EIS, DR or PER that relates to a development or project that is to be undertaken within the Sanctuary, or is likely to have a direct impact on the Sanctuary, is referred to the Minister for the Sanctuary.
The amendment to the Environment Protection Act 1993 requires all persons and bodies involved in the administration of the Act to take into account the objects and objectives of the ADS legislation when taking any action within, or in relation to, any part of the Sanctuary.
The amendments to the Fisheries Act 1982 require the Minister and Director of Fisheries to seek to further the objects and objectives of the ADS legislation in administering the Fisheries Act. Other amendments increase the maximum penalties for offences involving marine mammals, require the Minister to temporarily prohibit fishing activities in the Sanctuary on the request of the Minister for the Sanctuary, require the Director to consult and have regard to the views of that Minister before deciding whether to grant an application to release exotic or farm fish into natural waters, and require the Minister to consult with and have regard to the views of the Minister for the Sanctuary in relation to proposed research, works or other operations under section 31 and in relation to applications relating to exemptions under section 59.
The amendments to the Harbors and Navigation Act 1993 add the objects and objectives of the ADS legislation to those of the Harbors and Navigation Act and impose a duty on persons engaged in administering the Act to take into account and seek to further the objects and objectives of the ADS legislation when taking any action within the Sanctuary or action that is likely to have a direct impact on the Sanctuary. Amendments to section 26 require the CEO to consult with and have regard to the views of the Minister for the Sanctuary before granting a licence under that section in relation to waters that form part of the Sanctuary.
The amendments to the Historic Shipwrecks Act 1981 require the Minister to seek to further the objects and objectives of the ADS legislation when considering an application for a permit relating to an historic shipwreck or historic relic in the Sanctuary. Prescribed classes of applications for such a permit or for an activity to be undertaken within the Sanctuary cannot be determined by the Minister until he or she has consulted with and had regard to the views of the Minister for the Sanctuary.
The amendments to the Mining Act 1971 require the Minister to take into account the objects and objectives of the ADS legislation in administering the Act. Other amendments are to require that an application for a licence or lease relating to an area within or adjacent to the Sanctuary be referred to the Minister for the Sanctuary and if the Minister responsible for the Mining Act and the Minister for the Sanctuary cannot agree on whether the application should be granted or the conditions to which the licence or lease should be subject, the matter must be referred to the Governor for determination. In the case of an application for the renewal of a licence or lease that relates to an area within or adjacent to the Sanctuary, the Minister must, before determining the application, consult with and have regard to the views of the Minister for the Sanctuary. The amendments also require applications for authorisation to use prescribed equipment in relation to an area within or adjacent to the Sanctuary to be referred to the Minister for the Sanctuary and determinations made by the Governor if the Director of Mines and Minister for the Sanctuary cannot agree on whether the application should be granted or the conditions to which an authorisation should be subject.
The amendments to the National Parks and Wildlife Act 1972 require the Minister, the Chief Executive and the Director to seek to further the objects and objectives of the ADS legislation in managing reserves situated wholly or partly within the Sanctuary. The amendments also increase maximum penalties for offences involving marine mammals and provide that a permit cannot authorise hunting within the Sanctuary or the possession of firearms or other devices for hunting while in the Sanctuary. In addition, any permit under the Act relating to an activity within the Sanctuary must be consistent with the objects and objectives of the ADS legislation and the Minister must, before making a decision on an application of a prescribed class, consult with and have regard to the views of the Minister for the Sanctuary.
The amendments to the Native Vegetation Act 1991 provide that the Native Vegetation Council can only delegate powers in relation to a matter within the Sanctuary with the approval of the Minister for the Sanctuary. The Act is also amended to require that guidelines under section 25 relating to land within the Sanctuary must seek to further the objects and objectives of the ADS legislation. Other amendments are to require that the Council, before determining applications of a prescribed class for consent relating to native vegetation consult with and have regard to the views of the Minister for the Sanctuary, and to add to the principles of native vegetation clearance a principle relating to the Sanctuary.
The amendments to the Petroleum Act 2000 require the Minister to take into account the objects and objectives of the ADS legislation in administering the Petroleum Act and require applications for licences relating to areas within or adjacent to the Sanctuary to be referred to the Minister for the Sanctuary. If the Ministers cannot agree on whether an application should be granted or on the conditions to which a licence should be subject, the matter must be referred to the Governor for determination. The Minister must consult with and have regard to the views of the Minister for the Sanctuary in relation to applications for renewals of licences relating to areas within or adjacent the Sanctuary. Statements or revised statements of environmental objectives applying to any part of the Sanctuary must not be approved by the Minister without the concurrence of the Minister for the Sanctuary. If concurrence cannot be obtained, the matter must be referred to the Governor for determination.
Mr HAMILTON-SMITH secured the adjournment of the debate.