Antarctic Marine Living Resources Conservation Regulations 1994

CCAMLR is the Commission for the Conservation of Antarctic Marine Living Resources, the international body that adopts conservation measures binding on Australia once accepted. The CCAMLR Convention Area is the geographical area defined in the Convention. These terms are incorporated by reference (regulation 3).

CEMP site is the critical operational concept. It means a monitoring site established for the purposes of the Ecosystem Monitoring Program conducted by Convention parties, the management plan for which has been adopted by CCAMLR in accordance with Conservation Measure 18/IX. That Conservation Measure was adopted by the Commission, became binding on Australia on 7 May 1991, and is taken as in force on the day the Regulations commenced (originally 1994). A CEMP site is thus an internationally designated location subject to a specific management plan. The Regulations do not list the sites; they are defined by reference to CCAMLR decisions that can change over time. This creates an incorporation by reference of evolving international instruments, meaning the precise scope of regulated sites can shift without amendment to the Regulations.

An entry permit is a permit given by the Minister under regulation 6(1). It is specific to one or more CEMP sites, identifies the permit holder and any individuals under their control authorised to enter, and states any authorised activities and the period of validity (regulation 6(3)). It is separate from permits issued under section 9(1) of the Act, which are for taking marine living resources. An entry permit is purely for site access.

A foreign permit means a permit issued by another Contracting Party that allows the person to enter the site. Holding a foreign permit is a defence to the offence of entering a CEMP site without an Australian entry permit (regulation 11(2)(c)). The Regulations do not define "Contracting Party" but it is a term from the Convention. The defence only applies if the foreign permit is from a party to the Convention, not merely from any foreign state.

Conservation measures are measures adopted by CCAMLR and accepted by Australia, from time to time (see subsection 3(1) of the Act). They are not set out in the Regulations but are incorporated by reference. Regulation 4 explicitly prevents a permit under the Act from authorising an act that contravenes a conservation measure. They also apply indirectly to entry permits: if an activity identified in the permit relates to a matter to which a conservation measure relates, the permit holder and identified individuals must comply with that measure (regulation 7(1)(b), note). This means that the evolving body of CCAMLR conservation measures imposes ongoing obligations on entry permit holders, not just on resource-taking permittees, to the extent their activities overlap with subjects covered by conservation measures.

A management plan is the plan adopted by CCAMLR for a specific CEMP site in accordance with Conservation Measure 18/IX. The Regulations refer to "the management plan in force in relation to each CEMP site" (regulations 6(2)(d), 7(1)(a), 8(2)(d), 9(4)(d)). The plan's requirements are conditions of the entry permit and non-compliance is an offence.

The primary class affected is any person seeking to physically enter a CEMP site. This includes scientific researchers, field support personnel, logistics providers, and possibly tourists or media if any such access were permitted. The Regulations impose a blanket prohibition on entry, so anyone setting foot on a CEMP site without authorisation commits an offence. The permit regime creates a gatekeeping role for the Minister, who decides whether to issue an entry permit, on what conditions, and whether to amend, suspend, or revoke it.

Permit holders bear most of the compliance burden. They must apply in writing (regulation 5), satisfy the Minister of the requirements, and then comply with both automatic and imposed conditions. They are also liable for the acts of individuals under their control; regulation 11(3)(c) makes it an offence for the permit holder to allow a person identified in the permit to act inconsistently with the management plan or to adversely affect its effectiveness. This vicarious liability imposes monitoring and enforcement duties on the permit holder.

Individuals identified in the permit as being under the permit holder's control are directly bound. They must not act inconsistently with the management plan or adversely affect its effectiveness (regulation 11(3)(b)), and must not contravene a condition of the permit (regulation 11(4)). They benefit from the permit only if they are on the list; a person not listed who enters the CEMP site commits an offence even if accompanying the permit holder.

Holders of foreign permits are exempt from the Australian entry permit requirement but only for the site to which their foreign permit relates. The Regulations do not require them to notify the Minister or to comply with Australian management plans for the site, though they remain subject to the Act's other provisions.

The Minister is the decision-maker. The Minister must have regard to objectives of the Act, the Convention, conservation measures, and the management plan before issuing, amending, or suspending/revoking a permit (regulations 6(2), 8(2), 9(4)). The Minister may act unilaterally without the holder's agreement when amending a permit. The Minister's discretion is broad; the "must have regard to" standard does not compel a particular outcome.

Australia, as a Contracting Party to CCAMLR, is the entity that must implement conservation measures and management plans. The Regulations are a mechanism to discharge those obligations. Failure to maintain an effective permit and enforcement system could expose Australia to international criticism or compliance proceedings within CCAMLR.

CCAMLR is indirectly affected because the Regulations give domestic legal effect to its decisions, making them enforceable against individuals in Australian courts.

The central duty is the prohibition on entering a CEMP site without authorisation (regulation 11(1)). This duty applies to any person, regardless of nationality, within Australian jurisdiction or on Australian vessels. The right to enter is conferred only by an entry permit or a foreign permit; permission must be obtained in advance.

For the permit holder, the key duties are set out in the conditions of the permit. Regulation 7(1) imposes two automatic conditions: activities must comply with the management plan and must avoid adversely affecting its effectiveness; and if the activity relates to a matter covered by a conservation measure, compliance with that measure is required. The Minister may impose additional conditions under regulation 7(2), including restrictions on times and places of entry, limitations on activities, and duties to provide information about compliance, site condition, or work undertaken.

The permit holder has a duty to ensure that individuals under their control do not act inconsistently with the management plan or adversely affect its effectiveness (regulation 11(3)(c)). This vicarious liability means the permit holder must supervise and control those individuals. A breach by an identified individual can lead to the holder's own prosecution, even if the holder did not personally commit the act.

Permit holders and identified individuals also have a duty not to contravene a condition of the permit (regulation 11(4)). This is a strict prohibition subject to the penalty of 10 penalty units; there is no reasonable excuse defence for this specific offence, unlike the management plan offence under regulation 11(3) which does allow a reasonable excuse defence.

Rights: The applicant has a right to apply for an entry permit (regulation 5). The Minister must consider the application, but there is no right to be granted a permit; the Minister's discretion is broad. If the Minister refuses, imposes conditions (under regulation 7(2)), amends, suspends, or revokes a permit, the affected person has a right to seek review by the Administrative Review Tribunal (regulation 10). This review right covers the specific decisions listed and does not extend to all possible decisions (for example, the automatic conditions under regulation 7(1) are not separately reviewable, though a refusal to vary them might be if it falls under amendment).

The permit holder also has the right to have the permit remain in force for its stated period, subject to suspension or revocation (regulation 6(4)). However, suspension for up to 90 days is permitted, and the suspension period counts as part of the permit's expressed duration (regulation 9(7),(8)), effectively shortening the total operational time.

Rights of individuals identified: they are entitled to enter the CEMP site by reason of the permit, but they are also directly bound by its conditions and the management plan. They do not have individual standing to seek review of the Minister's decisions; that right belongs to the permit holder.

The primary penalty under the Regulations is 10 penalty units (regulation 11). As of 2024, one penalty unit is $220 under section 4AA of the Crimes Act 1914, making the maximum fine $2,200 per offence. This is a relatively modest amount for a corporate or government-funded research expedition, but it is a criminal penalty with a conviction recorded. The offence is not a strict liability offence; it is subject to defences.

Three separate offences are created. First, entering a CEMP site without authorisation (regulation 11(1)). Defence: being the permit holder, being identified in the permit, or holding a foreign permit for that site. The evidential burden of proving the defence falls on the defendant (Criminal Code section 13.3). Second, acting inconsistently with the management plan or adversely affecting its effectiveness (regulation 11(3)). This applies to both the permit holder and identified individuals, and also to the permit holder if they allow an identified person to so act. Defence: reasonable excuse. Again, evidential burden on defendant. Third, contravening a condition of the permit (regulation 11(4)). There is no reasonable excuse defence specified for this offence; it appears to be an absolute prohibition subject only to the general criminal defences in the Criminal Code.

Enforcement tools beyond prosecution: The Minister may suspend or revoke an entry permit on reasonable grounds that a condition has been contravened (regulation 9(1)), or if the permit holder or identified individual is convicted of an offence under a range of listed statutes including the Act, the Regulations, the Antarctic Mining Prohibition Act, the Antarctic Treaty (Environment Protection) Act, the Fisheries Management Act, and others (regulation 9(2)). The Minister may also suspend or revoke if satisfied on reasonable grounds that an act likely to be carried out may conflict with or adversely affect the management plan (regulation 9(3)). This prospective enforcement power allows preventive action before any harm occurs, based on the Minister's assessment of likely future conduct.

Suspension cannot exceed 90 continuous days (regulation 9(7)), but the permit continues to expire as if running. The Minister may revoke the suspension or revoke the permit while suspended (regulation 9(5)). The Minister is required to enter details of any amendment, suspension, or revocation in the register of permits kept under section 9(7) of the Act (regulations 8(4), 9(6), 6(5)).

No civil penalty provisions appear in the Regulations; only criminal consequences. However, a conviction under one of the listed Acts can trigger suspension or revocation, creating an additional consequence beyond the sentence for that conviction.

These Regulations are made under the Antarctic Marine Living Resources Conservation Act 1981. They supplement that Act's permit regime for taking marine living resources (section 9(1)) by restricting what those permits may authorise (regulation 4). The Act itself creates offences for taking or interfering with Antarctic marine living resources without a permit, and defines conservation measures. The Regulations do not replicate those offences; they focus on site access and management plan compliance.

The Regulations interact heavily with CCAMLR conservation measures and management plans, which are not set out in the Regulations themselves but are incorporated by reference. This means that changes in international law directly affect domestic compliance obligations without any amendment to the Regulations. A person must know the current state of CCAMLR decisions to comply. This creates uncertainty and a need for ongoing monitoring.

Cross-referenced statutes for suspension/revocation: regulation 9(2) lists nine other Acts or regulations under which a conviction can lead to permit suspension or revocation. These include the Antarctic Mining Prohibition Act 1991 (banning mining in Antarctica), the Antarctic Treaty (Environment Protection) Act 1980 (implementing the Madrid Protocol on environmental protection), the Continental Shelf (Living Natural Resources) Act 1968, the Fisheries Management Act 1991 (Commonwealth fisheries), the Whale Protection Act 1980, and the Environment Protection and Management Ordinance 1987 of the Territory of Heard Island and McDonald Islands. This broad cross-enforcement means that a conviction under any of these environmental laws can trigger loss of a CEMP entry permit, even if the conviction is for unrelated conduct.

The Criminal Code applies to offences under the Regulations, specifically section 13.3 regarding evidential burden for defences (as noted in the regulation 11 notes). The standard criminal defences (mistake of fact, intervening conduct, duress) also apply.

The Administrative Review Tribunal Act 1975 provides the mechanism for review of decisions listed in regulation 10. The Tribunal may affirm, vary, or set aside the Minister's decision. It cannot remake the decision in a more restrictive way, but can substitute its own decision for the Minister's.

No interaction with state or territory laws is apparent, as the Regulations apply to a Commonwealth area (Antarctic and sub-Antarctic territories) and to Australian activities on the high seas within the Convention Area. State laws do not generally extend there.

The Antarctic Marine Living Resources Conservation Regulations 1994 were originally made in 1994, as their name suggests. The text provided shows one specific amendment: the Antarctic Marine Living Resources Conservation Amendment (Conservation Measures) Regulation 2015. That amendment inserted Part 2 (regulation 4) and Part 4 transitional provisions (regulation 13). Before 2015, there was no regulation 4; permits under section 9(1) of the Act could authorise acts that contravened a conservation measure if the permit's terms allowed it, because the Act itself did not expressly prohibit that. The 2015 amendment closed that loophole, retrospectively overriding existing permits under regulation 13.

The 2015 amendment also likely introduced the note referencing conservation measures in regulation 4, and the current numbering of Parts. Before 2015, Part 2 likely did not exist, and Part 3 would have been Part 2. The Regulations have not been substantially amended since then, so the core permit scheme for CEMP sites has remained stable since 1994. There may have been minor machinery amendments (e.g., updating references to the Administrative Review Tribunal from the former Administrative Appeals Tribunal; regulation 10 now refers to Administrative Review Tribunal, reflecting the 2024 renaming). The original 1994 regulations also defined CEMP site by reference to Conservation Measure 18/IX as in force on commencement, which was a fixed date. That definition remains unchanged; it does not automatically update when CCAMLR adopts new management plans for new CEMP sites under a different conservation measure.

The source text does not mention any specific litigation. No published decisions of courts or tribunals are cited. The Regulations are relatively obscure, dealing with a narrow geographic area (Antarctic CEMP sites) and a small number of permit holders (primarily government scientific agencies). It is likely that most disputes have been resolved administratively without reaching formal review, or that decisions reviewed by the Administrative Review Tribunal have not been reported in a way that is widely accessible.

The potential for litigation exists: a permit holder could challenge a refusal, condition, amendment, suspension, or revocation under regulation 10. Such a challenge would test the Minister's exercise of discretion and whether proper regard was had to the objectives and principles listed in regulations 6(2), 8(2), and 9(4). A prosecution under regulation 11 could lead to a defended hearing, which might interpret the scope of "adversely affect the effectiveness of the management plan" or the "reasonable excuse" defence. No such reported cases are known, however.

Given the small number of potential defendants (mostly Australian Antarctic Division scientists and contractors), the low penalty ($2,200), and the high compliance culture of the government agency, criminal prosecutions are likely very rare. The suspension/revocation power under regulation 9 is probably a more practical enforcement tool.

1. Minister can amend without consent (regulation 8(3)). The Minister may add, vary, or revoke conditions, vary the list of persons, the number of sites, the activities, or the period of validity at any time, without the permit holder's agreement, and without notice. This gives the permit holder no contractual certainty; the permit is essentially revocable or mutable by ministerial discretion.

2. Suspension shortens permit life. Regulation 9(7) and (8) state that suspension cannot exceed 90 days, but the period for which the permit is expressed to operate includes any suspension period. So if a permit is suspended for 60 days, those 60 days still count against the permit's duration; the permit effectively expires 60 days earlier than it would have without suspension. This is a penalty in itself: the permit holder loses operational time.

3. Vicarious liability for permit holders (regulation 11(3)(c)). The permit holder commits an offence if they allow an identified person to act inconsistently with the management plan or to adversely affect its effectiveness. This is not a due diligence defence; it is a strict prohibition subject only to reasonable excuse. If a field researcher ignores instructions and damages a CEMP site, the permit holder may be criminally liable even if they took all reasonable precautions.

4. No reasonable excuse defence for condition breach. Regulation 11(4) (contravention of a permit condition) does not include the "reasonable excuse" defence that exists for regulation 11(3). The only defences would be general criminal defences such as mistake of fact or duress. Accidental or unavoidable non-compliance with a condition could still result in a conviction.

5. Foreign permit defence is narrow. Regulation 11(2)(c) allows a defence if the person holds a foreign permit "in relation to the site". The foreign permit must be from another Contracting Party (a party to the Convention). A permit from a non-party state would not qualify. Also, the foreign permit must be specific to that CEMP site; a general permit for the area may not suffice.

6. Incorporation by reference creates hidden obligations. The Regulations refer to conservation measures and management plans that are not set out in the text. These documents change over time. A permit holder could be in breach of regulation 7(1)(b) without knowing that CCAMLR adopted a new conservation measure covering their activity. There is no explicit requirement for the Minister to notify permit holders of such changes.

7. Review is limited. Regulation 10 lists specific decisions that are reviewable. Not all decisions are covered. For example, the Minister's decision to not impose additional conditions under regulation 7(2) is not reviewable (only the imposition of conditions). The Minister's decision to refuse to amend a permit under regulation 8(1) is not listed; only the act of amending is reviewable. This asymmetry favours the Minister.

8. Transitional override of existing permits (regulation 13). Permits issued before the 2015 amendment were retrospectively made subject to the new regulation 4. Holders of such permits could have been relying on terms that authorised acts now illegal, without any compensation or grandfathering. This demonstrates that permit conditions can be overridden by amendment to the Regulations.

9. No requirement for environmental impact assessment. The Regulations do not require an environmental impact assessment or similar process before issuing an entry permit. The Minister must have regard to the objectives of the Act and the Convention, but there is no specific procedure or public consultation. This is a thin safeguard against a permit that could cause harm to a CEMP site.

Compliance starts with determining whether you need an entry permit. If you plan to enter a CEMP site (a site listed by CCAMLR as part of its Ecosystem Monitoring Program, with a management plan adopted under Conservation Measure 18/IX), you must not enter without authorisation. A list of CEMP sites is maintained by CCAMLR and additional sites may be designated from time to time. Check the current CCAMLR website or contact the Australian Antarctic Division.

Step 1: Apply in writing. Submit an application to the Minister (likely through the Australian Antarctic Division as delegate). The application must identify the CEMP site, the individuals under your control who will enter, and any activities you intend to carry out (regulation 5). Be specific. Vague applications invite conditions or refusal.

Step 2: Prepare to meet the Minister's considerations. The Minister will have regard to the objectives of the Act, the Convention, conservation measures, and the management plan for the site (regulation 6(2)). Your application should demonstrate how your proposed activities are consistent with these documents. Attach relevant extracts, or reference compliance with the management plan's specific requirements.

Step 3: Accept conditions. Your permit will automatically be subject to conditions under regulation 7(1): compliance with the management plan, avoidance of adverse effects, and compliance with relevant conservation measures. The Minister may impose additional conditions under regulation 7(2), which could restrict times, places, activities, or require reporting. If you disagree with conditions, you can seek review under regulation 10(c), but the process may be quicker than litigation.

Step 4: Brief all individuals identified in the permit. Ensure they understand the management plan requirements, the conservation measures that apply to their activities, and all permit conditions. Maintain a compliance record. The permit holder will be liable for the acts of these individuals (regulation 11(3)(c)), so training and supervision are essential.

Step 5: Monitor changes to external documents. Conservation measures and management plans can be updated or replaced by CCAMLR decisions. There is no automatic notification. Subscribe to CCAMLR alerts, check the CCAMLR website regularly, and review the annual meeting outcomes. The permit condition to comply with conservation measures (regulation 7(1)(b)) is ongoing and dynamic.

Step 6: Keep records and report if required. Additional conditions may require you to give information about compliance, site condition, or work undertaken (regulation 7(2)(d)). Comply with these requirements promptly. Failure to provide requested information could be a breach of a condition, leading to prosecution or suspension.

Step 7: Seek amendment if circumstances change. If you need to add new individuals, change activities, or extend the permit period, apply for an amendment under regulation 8. The Minister can amend without your agreement, but a request may be processed more efficiently. If the Minister proposes an amendment you oppose, seek review under regulation 10(d).

Step 8: Avoid adverse effects. The management plan prohibits activity that "affects adversely the effectiveness of the management plan" (regulation 7(1)(a)(ii)). This is a low threshold. Even minor interference with monitoring equipment or wildlife could trigger an offence. Plan activities carefully and consult the management plan for prohibited actions.

Step 9: Understand the consequences of breach. A conviction under regulation 11 (10 penalty units) also triggers the Minister's power to suspend or revoke the permit (regulation 9(2)). A conviction under any of the nine listed Acts can also lead to suspension or revocation. If you or your personnel are convicted of, say, a fisheries offence, you risk losing this permit even if the offence is unrelated to the CEMP site.

Step 10: Prepare for potential suspension. If the Minister suspects a breach or likely adverse effect, a suspension of up to 90 days can be imposed (regulation 9). The suspension counts against your permit's duration. Consider building some time buffer into your field schedule to account for possible suspension.