Marine Parks Act 2007

This Act may be cited as the Marine Parks Act 2007.

In this Act—

activity includes the storage or possession of anything (including something in liquid or gaseous form);

associate—see subsection (2);

authorised officer means a person appointed under Part

4Division 3;

business includes a business not carried on for profit or gain;

Chief Executive means the Chief Executive of the

Department and includes a person for the time being acting in that position;

coastal waters of the State means any part of the sea that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State

Powers) Act 1980 of the Commonwealth;

condition includes a limitation;

contravene includes fail to comply with;

Council means the Parks and Wilderness Council established under the National Parks and

Wildlife Act 1972;

council means a council within the meaning of the Local Government

Act 1999;

Department means the administrative unit of the

Public Service that is, under the Minister, responsible for the administration of this Act;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

ERD Court means the Environment, Resources and

Development Court established under the Environment, Resources and Development Court

Act 1993;

general duty of care means the duty under

Part

5;

harm—see subsection (4);

indigenous land use agreement means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act

1993 of the Commonwealth;

land includes air above land;

management plan means a management plan under

Part

3Division 2;

marine park means an area established as a marine park under Part

3Division 1;

permit means a permit under

Part

3Division 4;

place includes any land, water, premises or structure;

prohibiting or restricting an activity—see subsection (5);

protection order means a protection order under

Part

6Division 1;

public authority includes a Minister, statutory authority or council;

related operational Act means an Act declared by the regulations to be a related operational Act;

reparation order means a reparation order under

Part

6Division 1;

restrict includes regulate;

sea includes land beneath sea and air above sea;

special purpose area—see section 5;

spouse—a person is the spouse of another if they are legally married;

statutory authorisation means an approval, consent, licence, permit or other authorisation or entitlement granted, arising or required under an Act;

statutory instrument means—

a plan, program or policy; or

any other instrument of a prescribed kind, made under an Act;

taking action to make good harm—see subsection (6);

vehicle includes aircraft;

vessel means—

a ship, boat or vessel; or

an air-cushion vehicle, or other similar craft, used on water;

or

a surf board, wind surf board, motorised jet ski, water skis or other similar device on which a person rides through water; or

a structure that is designed to float in water;

waters includes land beneath waters and air above waters;

zone—see section 4.

For the purposes of this Act, a person is an

associate of another if—

they are partners; or

1 is a spouse, domestic partner, parent or child of another;

or

they are both trustees or beneficiaries of the same trust, or 1 is a trustee and the other is a beneficiary of the same trust; or

1 is a body corporate or other entity (whether inside or outside

Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

1 is a body corporate or other entity (whether inside or outside

Australia) and the other is a person who has a legal or equitable interest in

5 per cent or more of the share capital of the body corporate or other entity; or

they are related bodies corporate within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

a chain of relationships can be traced between them under any 1 or more of the above paragraphs.

For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust.

For the purposes of this Act—

harm includes—

a risk of harm, and future harm; and

anything declared by regulation to be harm to a marine park;

and

harm need not be permanent but must be more than transient or tenuous in nature.

For the purposes of this Act, a reference to prohibiting or restricting an activity within a marine park, or a zone or other area of a marine park, includes a reference to prohibiting or restricting access (including access by aircraft) to the marine park or zone or area.

For the purposes of this Act, taking action to make good harm to a marine park includes taking the following action:

minimising, managing or containing the harm;

remedying the harm;

addressing the consequences resulting from the harm;

compensating for any loss or adverse impacts arising from the harm.

For the purposes of this Act, the Minister may, in assessing the costs of taking action to make good harm to a marine park, apply any assumptions determined by the Minister to be reasonable in the circumstances.

For the purposes of this Act, a zone is an area within a marine park that—

has boundaries defined by the management plan for the marine park;

and

is identified by the management plan as a particular type of zone depending on the degree of protection required within the area.

It is intended that the regulations will make provision for the following types of zones:

a general managed use zone—being a zone primarily established so that an area may be managed to provide protection for habitats and biodiversity within a marine park, while allowing ecologically sustainable development and use;

a habitat protection zone—being a zone primarily established so that an area may be managed to provide protection for habitats and biodiversity within a marine park, while allowing activities and uses that do not harm habitats or the functioning of ecosystems;

a sanctuary zone—being a zone primarily established so that an area may be managed to provide protection and conservation for habitats and biodiversity within a marine park, especially by prohibiting the removal or harm of plants, animals or marine products;

a restricted access zone—being a zone primarily established so that an area may be managed by limiting access to the area.

The regulations may, for the purposes of a zone, apply various prohibitions or restrictions to the different types of zones.

The regulations may provide for other matters associated with the establishment or management of a zone (including by regulating other activities or circumstances that may arise by virtue of the creation or existence of a zone).

For the purposes of this Act, a special purpose area is an area within a marine park, identified as a special purpose area and with boundaries defined by the management plan for the marine park, in which specified activities, that would otherwise be prohibited or restricted as a consequence of the zoning of the area, will be permitted under the terms of the management plan.

Subject to subsection (2), this Act is in addition to the provisions of any other Act.

The prohibitions or restrictions applying within a marine park under this Act will, to the extent prescribed by the regulations, have effect despite the provisions of any other Act.

This Act binds the Crown in right of this 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.

The objects of this Act are—

to protect and conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive, adequate and representative system of marine parks; and

to assist in—

the maintenance of ecological processes in the marine environment;

and

the adaptation to the impacts of climate change in the marine environment; and

protecting and conserving features of natural or cultural heritage significance; and

allowing ecologically sustainable development and use of marine environments; and

providing opportunities for public appreciation, education, understanding and enjoyment of marine environments.

For the purposes of this Act, ecologically sustainable development comprises the use, protection, conservation, development and enhancement of the marine environment in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well‑being and for their health and safety while—

sustaining the potential of the marine environment to meet the reasonably foreseeable needs of future generations; and

safeguarding the life‑supporting capacities and processes of the marine environment; and

avoiding, remedying or mitigating any adverse effects of activities on the marine environment.

The following principles should be taken into account in connection with achieving ecologically sustainable development for the purposes of this

Act:

decision‑making processes should effectively integrate both long term and short term economic, environmental, social and equity considerations;

if there are threats of serious or irreversible harm to the marine environment, lack of full scientific certainty should not be used as a reason for postponing measures to prevent harm;

decision‑making processes should be guided by the need to evaluate carefully the risks of any situation or proposal that may adversely affect the marine environment and to avoid, wherever practicable, causing any serious or irreversible harm to the marine environment;

the present generation should ensure that the health, diversity and productivity of the marine environment is maintained or enhanced for the benefit of future generations;

a fundamental consideration should be the conservation of biological diversity and ecological integrity;

environmental factors should be taken into account when valuing or assessing assets or services, costs associated with protecting or restoring the marine environment should be allocated or shared equitably and in a manner that encourages the responsible use of the marine environment, and people who obtain benefits from the marine environment, or who adversely affect or consume natural resources, should bear an appropriate share of the costs that flow from their activities;

if the management of the marine environment requires the taking of remedial action, the first step should, insofar as is reasonably practicable and appropriate, be to encourage those responsible to take such action before resorting to more formal processes and procedures;

consideration should be given to Aboriginal heritage, and to the interests of the traditional owners of any land or other natural resources;

consideration should be given to other heritage issues, and to the interests of the community in relation to conserving heritage items and places;

the involvement of the public in providing information and contributing to processes that improve decision‑making should be encouraged;

the responsibility to achieve ecologically sustainable development should be seen as a shared responsibility between the State government, the local government sector, the private sector, and the community more generally.

The Minister, the ERD Court and other persons or bodies involved in the administration of this Act, and any other person or body required to consider the operation or application of this Act (whether acting under this

Act or another Act), must act consistently with, and seek to further, the objects of this Act.

The Governor may, by proclamation made on the recommendation of the Minister—

establish a specified area as a marine park; and

assign a name to the marine park so established.

The Minister must, in formulating a recommendation for the purposes of subsection (1), seek, and have regard to, the advice of the Council.

The area to be specified by proclamation as a marine park is to consist of a part of the sea that is within the limits of the State or the coastal waters of the State, and may include land or waters held by, or on behalf of, the Crown within or adjacent to the specified part of the sea.

A proclamation under this section—

must define the boundaries of the marine park; and

may, on the recommendation of the Minister, contain provisions (interim protection orders) that prohibit or restrict activities within the marine park with a view to ensuring that areas in a marine park are not adversely affected prior to the adoption by the Minister of a management plan for the marine park.

The Minister must take into account the following matters before making a recommendation under subsection (4)(b)—

any management arrangements that are already applying in relation to the area; and

any development authorisations that have been given under the Planning, Development and Infrastructure Act 2016 in relation to the area; and

any advice received from the Council, and may take into account such other matters as the Minister thinks fit.

A person must not contravene an interim protection order contained in a proclamation under this section. Maximum penalty: Maximum penalty: $100 000 or imprisonment for 2 years.

The Minister must, after the Governor has established a marine park under this section, in the manner prescribed by the regulations, give public notice of the making of the relevant proclamation and, in so doing—

specify a place or places where copies of the proclamation may be inspected or purchased; and

invite submissions from interested persons within a period (of at least 6 weeks) specified by the Minister on the boundaries of the marine park.

The Minister must consider any submissions received under subsection (7)(b) and may, after taking into account any matters or advice determined by the Minister to be relevant in the circumstances, recommend to the Governor that the boundaries of the marine park be altered.

The Governor may, by subsequent proclamation (whether or not a process under subsection (7) or (8) has been completed)—

abolish a marine park established under this section; or

on the recommendation of the Minister, alter the boundaries of a marine park established under this section; or

alter the name of a marine park established under this section; or

on the recommendation of the Minister, vary or revoke an interim protection order contained in a proclamation under this section.

The Minister must, in formulating a recommendation for the purposes of paragraphs (b) and (d) of subsection (9), seek, and have regard to, the advice of the Council.

Subject to subsection (13), a proclamation must not be made under subsection (9)(a) or (b), by virtue of which an area ceases to be, or ceases to be included in, a marine park, except in accordance with a resolution passed by both Houses of Parliament.

Notice of a motion for a resolution under subsection (11) must be given at least 14 sitting days before the motion is passed.

Subsection (11) does not apply to a proclamation made on the recommendation of the Minister under subsection (8) within 6 months of the publication of a notice under subsection (7).

In this Division—

a reference to a draft management plan includes a reference to a draft amendment to, or a draft revocation of, a management plan previously made under this Part; and

a reference to a management plan includes a reference to an amendment to, or a revocation of, a management plan previously made under this Part; and

a reference to an initial management plan for a marine park means the management plan first declared by the Governor to be an authorised management plan for the marine park after the establishment of the marine park.

The Minister must manage a marine park in accordance with a management plan for the park.

A management plan for a marine park—

must be consistent with the objects of this Act and set out strategies for achieving those objects in relation to the park;

and

must establish the various types of zones within the park and define their boundaries; and

may identify and define the boundaries of special purpose areas within the park and set out the activities that will be permitted in the areas;

and

may direct the management of day‑to‑day issues associated with any aspect of the park, or the use or protection of the park (including scientific monitoring or research); and

may provide guidelines with respect to the granting of permits for various activities that might be allowed within the park.

A management plan must take into account—

the provisions of a document identified by the Minister, by notice in the Gazette, as the State's general strategic plan; and

any relevant state planning policy or regional plan, and the

Planning and Design Code, under the Planning, Development and Infrastructure

Act 2016; and

the provisions of the State Landscape Strategy and any relevant regional landscape plan under the Landscape South Australia Act 2019;

and

the provisions of any relevant environment protection policy under the Environment Protection

Act 1993; and

the provisions of any indigenous land use agreement;

and

the provisions of any statutory instrument under a related operational Act (insofar as is relevant to the operation of this Act and reasonably practicable).