NSW Marine Estate Management Legislation Passes Both Houses

Thursday 6 November 2014 @ 11.34 a.m. | Legal Research | Trade & Commerce

On Wednesday (5 November 2014) the Marine Estate Management Bill 2014 (NSW) was passed by the NSW Legislative Council and has as a result been passed by both Houses of Parliament. The legislation was initially introduced into the NSW Parliament mid October 2014 and is said by the NSW Government to set out the broad framework for marine estate management, detailing how areas of the marine estate including marine parks and aquatic reserves will be managed and be included in the underlying regulation and management plans to asses threat and risk to them.

Key Aspects of the Legislation

The new legislation repeals the Marine Parks Act 1997 (NSW) and commits the NSW Government to:

  • coordinating sustainable management in line with the vision of a clean, safe, healthy, biologically diverse and productive marine estate that is enjoyed and valued,
  • developing a new marine estate management strategy to set the strategic direction for managing the marine estate as a single continuous system and identify management priorities,
  • establishing the Marine Estate Management Authority,
  • outlining procedures for marine park and aquatic reserve declaration and management, including the making of management plans, and
  • undertaking appropriate and relevant community consultation and engagement.

Perhaps most controversially  the legislation gives the Minister for Primary Industries and Minister for the Environment joint responsibility for the Marine Estate Management legislation because in the Governments view:

". . . they both have a key role to play in managing the marine estate".

Reaction and Comment

On the question of joint ministerial responsibility the Nature Conservation Council of NSW Campaigns Director Daisy Barham is quoted on the Council's website on 17 October 2014 as saying that:

“We [the Nature Conservation Council] acknowledge the Bill seeks to institute a holistic approach to management of marine resources, which we applaud, . . . We also welcome the continued prohibition on mining in marine parks and the inclusion of the principles of ecologically sustainable development. However, this Bill would also put the needs of the environment in the hands of the Primary Industries Minister, who has displayed a reckless disregard for marine conservation. This is the minister who has allowed fishing in protected marine sanctuaries, closed the Cronulla Fisheries Research Centre, and overturned conservation plans that took years of community negotiation to finalise".

In the second reading of the Bill in the Legislative Council the joint responsibility issue was responded to as follows by the government:

"The Minister for Primary Industries will administer the Bill jointly with the Minister for the Environment. . . . Though recent reports would have you believe otherwise, marine parks have been jointly administered since the Marine Parks Act commenced in 1997. This has always been the case, and joint administration will continue under the Bill. . . . This means Ministers can only make decisions jointly, including the declaration of marine parks. . . . Neither Minister has the power of veto. If there is a dispute, clause 80 of the Bill clearly sees that the Premier resolves it. . . . The Primary Industries portfolio will take the lead on day-to-day administration of this Act, as has been the case for some time now." (emphasis added)

However, the issue of concern to critics was not a perceived power of veto but that for the first time, the Minister for the Environment would "need the concurrence of the Minister for Primary Industries before declaring marine parks".

Other concerns put forward by the Nature Conservation Council of NSW were that, there had been very poor consultation in developing the legislation, the Council claiming there had been as little as one three-hour meeting with stakeholders earlier this year (March 2014).

Further, the Council took issue with the legislation's proposals to reduce the consultation period for the declaration of new marine parks from 90 days to 60 days which it says, "contradicts the government’s stated desire to improve consultation on marine management issues".

On the question of review of the legislation, independent Mr Alex Greenwich points out on his web page that, the increase of the protection review cycle from five to 10 years is too long, saying:

"Protections will also be subject to a review cycle of 10 years instead of five. Ten years is a long time and potentially major and permanent damage can be done during this period. I call on the Government to retain existing consultation and review periods".

Further Mr Greenwich also points to another matter, what he calls the lack of "obvious criteria for deciding new parks" and the notion that new parks will be decided on "risk and threat" assessment:

". . . the Bill fails to legislate obvious criteria for deciding new parks. Basing it on risks and threats will not be enough. We need the "comprehensive, adequate and representative" principle to underpin and drive the design of reserves so that we can fill the protection gaps such as in the Hawkesbury and Twofold shelves".

Next Steps

The legislation is to commence on proclamation and generally reflects the public's perception which is supportive of marine sanctuaries, as polls such as the Galaxy Poll conducted earlier in 2014 have proven, with 93 percent of people in NSW supporting marine sanctuaries and that support only dropping to 91 percent among recreational fishers.

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