Environment Protection and Biodiversity Conservation Act 1999 - Proclamation - Jervis Bay National Park (27/02/1992)

The core legal concept in this proclamation is the declaration of a Commonwealth reserve. Under the EPBC Act, a proclamation by the Governor-General is the mechanism by which the Commonwealth formally dedicates land and waters in a territory as a national park. The proclamation defines the park’s boundaries, name, and certain physical limits. The key concept of depth to 1,000 metres means that the park extends vertically into the earth and into the sea-bed, which is an unusually precise specification. This prevents any subterranean activity such as mining, drilling, or tunnelling that would ordinarily be regulated separately under mining or petroleum laws. The proclamation states that the subsoil to that depth “is taken to be within the park,” which likely means the EPBC Act’s prohibitions and management powers apply all the way down to that level. This depth limit is probably chosen to cover any conceivable resource extraction without going into the mantle.

Another concept is the exclusion of specific parcels from the park. The proclamation carves out the Australian National Botanic Gardens annexe (Blocks 9-14), a right of way appurtenant to Block 13, Blocks 28, 37, and 41, and a small 1.92-hectare area near the trig station. These exclusions mean that those areas remain under other management regimes. The Botanic Gardens annexe is presumably managed by the Director of the Australian National Botanic Gardens under separate legislation. The right of way suggests an easement for access to Block 13, which is not part of the park. The Navy college and airfield are not excluded from the park itself but are adjacent; the boundaries are described in relation to them, implying careful negotiation to avoid including defence lands. The military areas remain under the Defence Act and related laws. The exclusion of these blocks creates a patchwork of land tenures within the overall park boundary, which can cause confusion for land managers and neighbouring property owners.

The proclamation also uses the concept of high water mark extensively to define boundaries. For the first parcel, the high water mark of Wreck Bay, Sussex Inlet, and St Georges Basin; for the second, Jervis Bay, the South Pacific Ocean, and Wreck Bay; for the third, Jervis Bay and the South Pacific Ocean; for the fourth, the high water mark of Bowen Island and Jervis Bay. The high water mark is a dynamic boundary that can shift with erosion or accretion, creating potential uncertainty. The proclamation does not define which high water mark (mean high water springs, mean high water neaps, or ordinary high water mark) is used. In practice, courts have often interpreted “high water mark” as the mean high water mark at ordinary tides. This ambiguity may matter if the shoreline changes significantly.

Finally, the concept of a national park in the EPBC Act context is a strictly protected area where extractive and damaging activities are prohibited except under permit or management plan approval. The proclamation does not itself contain any management rules; those are found in the EPBC Act, its regulations, and any management plan adopted by the Director. The proclamation is the legal trigger that makes the land subject to those rules.

The proclamation directly affects the Commonwealth as landowner. The Jervis Bay Territory is Commonwealth territory, so the park is entirely on Crown land. The proclamation locks that land into a conservation tenure, meaning the Commonwealth cannot sell, develop, or exploit resources there without amending the proclamation or using statutory mechanisms to excise land. The Director of National Parks becomes responsible for management, including preparing plans of management, controlling access, and enforcing prohibitions.

The Royal Australian Navy is affected because the boundaries are drawn around the Navy college (HMAS Creswell) and the Navy airfield. While those areas are excluded from the park (the college and airfield are not within the park, though the proclamation describes boundaries using their proposed western boundaries), the park abuts them directly. Any expansion of defence facilities that intrudes on the park would require an amendment to the proclamation or an EPBC Act environmental assessment. Conversely, the Navy benefits from the park as a buffer zone: the park may restrict civilian development that could interfere with operations.

The Australian National Botanic Gardens annexe (Blocks 9-14) is excluded from the park, so its managers retain control over those blocks for botanic purposes. However, the annexe is surrounded on most sides by the park, which may affect access, fire management, and boundary security.

Holders of rights of way (the right of way appurtenant to Block 13) are not excluded from the park; only the right of way itself is excluded. That means the owner of Block 13 has a legal entitlement to access across the park. The proclamation deliberately carved out that right of way, ensuring that the park designation does not interfere with existing easements. This is a recognition of private property rights within a conservation area.

Visitors and recreational users are affected because they gain the right to enter the park under the EPBC Act (subject to any restrictions in the management plan), but they lose the ability to conduct any activity that may damage the environment, such as off-road driving, collecting firewood, or removing plants and animals. Commercial tour operators must obtain licences.

Mineral, oil, and gas exploration companies are directly affected because the proclamation extends the park to a depth of 1,000 metres. Any rights to explore or extract beneath the park are extinguished or require ministerial consent under the EPBC Act. The proclamation also covers 875 hectares of Jervis Bay waters, affecting any offshore resource rights.

Fishers and boaters who operate in the waters of Jervis Bay are affected because the fourth parcel brings those waters into the park. Many types of fishing may be restricted or require permits under the EPBC Act or the management plan. The proclamation does not specify what activities are allowed in the marine area; those are determined by the Act and regulations.

Native title holders (if any) are affected because the park declaration may extinguish or impair native title rights without compensation, depending on how the park is managed. The source does not mention native title, so we cannot assume anything, but any future determination would need to account for the existing park tenure.

State and local government in NSW are indirectly affected because the park is in Jervis Bay Territory (not NSW), so NSW laws do not apply to land within the park. However, the park abuts NSW marine waters for some of the marine boundary, creating coordination issues for fisheries and marine park management.

The proclamation itself does not impose duties or grant rights; those arise from the EPBC Act under which the proclamation is made. However, we can identify the duties and rights that flow from the park’s existence.

Duty of the Director of National Parks: under the EPBC Act, the Director must manage the park in accordance with the legislation and any management plan. The Director has a duty to prepare a management plan for the park, to monitor and enforce compliance, and to ensure that the park’s values are protected. The proclamation does not specify these duties, but the EPBC Act (which is outside the source but is the legal framework) does. The Director also has a duty to consult with relevant stakeholders, including traditional owners and the community, when preparing plans.

Duty of persons entering the park: members of the public have a duty to comply with regulations made under the EPBC Act, which prohibit damaging flora or fauna, removing cultural heritage objects, lighting fires, and interfering with park infrastructure. The source does not list these regulations, but the proclamation’s effect is to make the land subject to them.

Right of access: the EPBC Act generally allows the public to enter Commonwealth reserves for recreational and educational purposes, subject to any restrictions in the management plan. The proclamation does not restrict access, so the default right applies. However, the management plan may close areas for rehabilitation, fire danger, or cultural reasons.

Right to carry out permitted activities: persons may apply for permits or licenses for activities otherwise prohibited, such as scientific research, commercial filming, or extractive operations. The proclamation does not affect these rights; they arise from the Act.

Right of excluded landowners: The holders of the excluded blocks (ANBG annexe, etc.) have the right to use those blocks under their own governing legislation, without interference from the park management. The right of way appurtenant to Block 13 is specifically excluded, which means the park does not affect that easement.

Right of the Navy: the Navy’s adjacent land is not part of the park, so the Navy has full rights to use its land for defence purposes. However, any new construction or activity on Navy land that is likely to have an impact on the park may require assessment under the EPBC Act because it may affect a matter of national environmental significance. The proclamation does not create this duty; it arises from the Act.

Ministerial powers: the Minister administering the EPBC Act has the power to approve management plans, to grant permits for certain activities, and to amend the proclamation or revoke the park. The proclamation itself does not confer these powers; they exist under the Act.

No private rights: the proclamation does not create any private rights other than the continued existence of the excluded right of way. It does not grant any person a right to undertake commercial exploitation or development. The park designation typically reduces the bundle of rights relative to other land tenures.

The proclamation does not contain any penalty provisions. However, the EPBC Act establishes a comprehensive enforcement regime for Commonwealth reserves. Because the proclamation brings the described land into the reserve network, any act that damages or interferes with the park’s environment or heritage may attract penalties. These penalties are not set out in the source, but we can note that they include significant fines and imprisonment for serious offences.

Under the EPBC Act, it is an offence to kill, injure, take, trade in, keep, or move a native species in a Commonwealth reserve without a permit. Penalties can be up to 7 years imprisonment and/or fines of up to $420,000 for an individual and $2.1 million for a body corporate (current amounts, but the source does not state them). It is also an offence to introduce an invasive species, damage heritage sites, or use a reserve for commercial purposes without approval. The proclamation extends these prohibitions to the park.

The inclusion of waters (the fourth parcel) means that fishing, boating, and marine construction activities may be regulated. For example, using a trawl net or anchoring in a prohibited area could be an offence. The depth specification means that any subterranean activity, such as drilling for groundwater or extracting minerals, would be an offence unless authorised. A company that holds exploration licences under other Acts would need to comply with the EPBC Act’s prohibition on mining in a national park.

Enforcement powers lie with the Director of National Parks, the Australian Federal Police, and authorised officers appointed under the EPBC Act. They can issue stop-work orders, seize evidence, and prosecute offenders. The proclamation does not create these powers, but it extends the geographical application of the Act’s enforcement provisions.

One practical issue is the complexity of the boundaries. The described bearings and distances are precise, but any enforcement action may require surveying to prove that an activity occurred within the park. The high water mark boundaries could shift over time, creating uncertainty about jurisdiction. The exclusions (Botanic Gardens annexe, etc.) mean that some areas within the outer description are not part of the park, so an offence may not have occurred if the activity took place on an excluded block.

The depth specification also raises enforcement challenges. If someone drills a bore on adjacent land that angles under the park at depths greater than 1,000 metres, is an offence committed? The proclamation says subsoil “to the depth of 1,000 metres below the surface of any land within the declared area is taken to be within the park.” That suggests that the vertical limit is 1,000 metres, not that any space below is outside the park. So drilling at 1,000.01 metres would be outside the park, but drilling at 999 metres would be inside. Proving the depth of an underground operation would be difficult without monitoring.

The proclamation operates within the framework of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). That Act is the primary Commonwealth law for environmental protection and management of Commonwealth reserves. The proclamation itself is made under the EPBC Act (or is treated as such, given the source document’s heading). However, the original proclamation was made under the National Parks and Wildlife Conservation Act 1975, which has been repealed and replaced by the EPBC Act. The transitional provisions of the EPBC Act (Schedule 4) generally preserve proclamations made under the old Act. Thus the park continues to exist under the new Act.

The proclamation also interacts with territory laws of Jervis Bay Territory. However, the territory does not have a separate legislature; it is administered by the Commonwealth under the Jervis Bay Territory Acceptance Act 1915. Most laws of the Australian Capital Territory apply in Jervis Bay Territory by regulation, but those laws do not extend to activities within the park. The EPBC Act overrides territory law to the extent of any inconsistency.

The exclusion of the Australian National Botanic Gardens annexe means that area is managed under the Australian National Botanic Gardens Act (whatever that may be). The director of that body has responsibilities for the botanic collection. The park management must coordinate with the Botanic Gardens to ensure activities on either side do not cause harm. The right of way appurtenant to Block 13 is excluded from the park, meaning the holder of Block 13 has a legal right to cross the park under the terms of the easement. The park management cannot lawfully obstruct that right.

The Royal Australian Navy airfield and college are not within the park, but they are federal land. The Navy operates under the Defence Act 1903. The proclamation boundaries are drawn to exclude Navy land, so there is no direct conflict. However, any development on Navy land that could affect the park’s environmental values may trigger the EPBC Act’s impact assessment provisions if it is a “controlled action”. That is not a direct interaction with the proclamation, but with the Act that governs the park.

The depth to 1,000 metres provision interacts with mining and petroleum legislation. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Commonwealth) would normally regulate resource extraction in Commonwealth waters. However, because the park includes sea-bed to 1,000 metres depth, any extraction in that area is prohibited or requires ministerial consent under the EPBC Act. The depth limit may also affect groundwater extraction: the Water Act 2007 (if applicable) may regulate bore drilling, but the park layer adds another approval requirement.

The proclamation also interacts with fisheries laws. The Fisheries Management Act 1991 (Commonwealth) applies to Commonwealth fisheries, and the Jervis Bay waters are part of the Commonwealth fishery. However, the park designation may restrict fishing methods. The proclamation does not itself ban fishing, but the EPBC Act regulations may do so. There is potential for inconsistency between a management plan that prohibits certain fishing and the fishery management plan. The proclamation is the foundation for the park’s existence, but the specific restrictions come from other instruments.

The source document is a single proclamation dated 27 February 1992. There is no indication in the text that it has been amended. The proclamation was originally made under the National Parks and Wildlife Conservation Act 1975, but the document as provided is headed “Environment Protection and Biodiversity Conservation Act 1999 - Proclamation - Jervis Bay National Park (27/02/1992)”. This suggests that the proclamation is now deemed to be made under the EPBC Act by operation of transitional provisions when the 1999 Act replaced the 1975 Act. The text of the proclamation itself has not been changed; the only change is the statutory basis.

It is possible that the park boundaries have been amended by subsequent proclamations, but this source does not mention any. A full search of the Federal Register of Legislation would be needed to confirm whether any amending proclamations exist. If there were amendments (such as adding or removing land), they would be separate instruments. The absence of any amendment history in the source is notable. The Australian National Botanic Gardens annexe exclusion was part of the original proclamation, suggesting that at the time of creation, the Botanic Gardens annexe was already present and deliberately excluded.

The proclamation includes highly specific survey descriptions with bearings and distances. Any amendment to the boundaries would require another proclamation with equally detailed descriptions, likely after a survey. Because the area is 30+ years old, the high water mark boundaries may have shifted, but the proclamation has not been updated to reflect current high water marks. That creates a potential discrepancy between the legal description and the actual shoreline.

The source does not include any list of amendments, nor any preamble noting previous versions. For compliance professionals, it is important to verify the current version on the Federal Register of Legislation. The version provided appears to be the original as made in 1992.

The source document does not refer to any litigation. There is no mention of court cases challenging the validity of the proclamation, the boundaries, the depth provision, or the exclusions. It is possible that there has been litigation under the EPBC Act relating to activities within the park, but that would involve the Act itself, not the proclamation. For example, a person might have been prosecuted for an offence within the park, and the defence could challenge whether the area was part of the park. That would require interpretation of the boundary descriptions.

One area of potential litigation is the high water mark boundary. If the high water mark has moved due to erosion or accretion, the park boundary may move with it unless the proclamation fixes a specific line. The source uses the phrase “high water mark” without qualification. Courts have considered whether that refers to the mean high water mark as it existed at the date of the proclamation or as it shifts over time. Different jurisdictions have taken different approaches. If the high water mark has retreated landward, it may be argued that park land has been lost, or if it has advanced, park land may have expanded. This could lead to disputes with adjacent landowners or the Navy.

Another potential issue is the exclusion of the Australian National Botanic Gardens annexe. It is possible that the exact boundaries of that annexe have been disputed, requiring judicial determination. The source does not show the boundaries of Blocks 9-14, only that they are excluded. If a person were charged with an activity near that area, they might argue that the activity occurred on the excluded block.

The depth provision could be litigated if someone claims that an activity at exactly 1,000 metres depth is outside the park. The proclamation says “to the depth of 1,000 metres below the surface … is taken to be within the park”. It does not say “up to 1,000 metres” or “at a depth not exceeding 1,000 metres”. The phrase “to the depth of” might be interpreted inclusively, so 1,000 metres is still within the park. But if it means “down to a depth of 1,000 metres”, then anything at 1,000.001 metres may be outside. A court would have to construe the wording.

Overall, there is no litigated case referenced in the source. This does not mean no litigation has occurred, but it is not part of the instrument. For a deep dive, we can only note the absence.

Several aspects of this proclamation could trap the unwary, holding hidden implications for those who rely on it.

Boundary complexity: The descriptions in the Schedule run for many lines of bearings, distances, arcs, chords, and radii. Any mistake in interpreting a bearing or distance could result in an error in determining whether a parcel is inside or outside the park. For example, a landowner near the Navy airfield might miscalculate the boundary by using different survey points. The reliance on “proposed” boundaries for the Navy college and airfield is especially risky: those “proposed” boundaries may have changed since 1992, but the proclamation still refers to them. If the Navy altered its boundary, the park boundary as described may no longer align with the actual defence land.

High water mark uncertainty: The proclamation uses “high water mark” 25 times. It does not define which tidal datum applies. In Australia, the common law distinguishes between ordinary high water mark and mean high water springs. The high water mark is dynamic. A coastal storm or sea level rise could change the high water mark, and with it the park boundary. Anyone conducting an activity near the shore should check the current high water mark against the historic line.

Exclusions within the park: The first parcel excludes the ANBG annexe (Blocks 9-14), a right of way, Blocks 28, 37, and 41. These exclusions are not mapped on the source; they are described only by reference to deposited plans. A person may assume an area is parkland when it is actually not, or vice versa. For example, the right of way appurtenant to Block 13 is excluded, but the source does not describe its width or location. Block 13 may have a legal entitlement to pass through the park, but the exact route may be unclear to other users.

Depth specification: The inclusion of subsoil to a depth of 1,000 metres is unusual. Most park proclamations do not specify depth; they simply include the land surface. Here, the drafters precisely set a vertical limit. This could be a trap for mining companies that hold or apply for exploration licences over the territory. The depth limit means that any resource beneath the park becomes part of the park, at least to 1,000 metres. It is not clear what lies at depths beyond 1,000 metres: the proclamation does not say that the park ends at 1,000 metres; it says the subsoil “to the depth of 1,000 metres … is taken to be within the park”. That could be read as meaning only that the first 1,000 metres is included, but the rest may be outside. Lay readers might assume the park extends infinitely downward.

The marine area (fourth parcel) : This includes 875 hectares of Jervis Bay waters. The boundary is from the high water mark of Bowen Island southwesterly and southeasterly to the territory boundary, then southwesterly to a point at Governor Head, then along the high water mark of Jervis Bay westerly and northwesterly. This creates an irregular shape. Boaters and fishers need to know exactly where the park waters end. The high water mark of Bowen Island and Jervis Bay is again dynamic. The territory boundary between Jervis Bay and NSW may also be uncertain in the water.

Exclusion of 1.92 hectares near Bherwerre Trig: The second parcel excludes a small area described as a rectangle (320 metres by 60 metres, etc.). This precise square is likely a survey or infrastructure site. Anyone researching the area may find that plot is not part of the park, which could be significant if it is the only flat land suitable for a building.

No management plan reference: The proclamation does not mention any management plan. The park may or may not have one. If a plan exists, it will impose additional restrictions not apparent from the proclamation. If no plan exists, the default rules under the EPBC Act apply, which are still restrictive.

No mention of native title: The proclamation ignores any native title rights. If native title exists over the park, the proclamation may have extinguished or impaired it. This could lead to future compensation claims or challenges.

Change in governing Act: The proclamation was made under the 1975 Act, but now operates under the 1999 Act. The transition may have altered some provisions, such as the definition of “park” or the management framework. A reader relying on the old Act could misapply the law.

Compliance with the proclamation itself is simple: ensure that any activity on land or water that falls within the described boundaries is not prohibited under the EPBC Act and any applicable management plan. The proclamation is not a direct source of prohibitions; it is the legal trigger that brings the land under the EPBC Act’s regime. Therefore, the first step is to determine whether a proposed action is within the park. This requires careful comparison of the legal description against cadastral maps, surveys, or GPS coordinates. Given the complexity, a professional surveyor should verify boundaries if there is any doubt.

Once it is established that the land or water is part of Jervis Bay National Park, the next step is to consult the EPBC Act and its regulations. The Act prohibits a range of activities in Commonwealth reserves without approval: taking native species, interfering with heritage, mining, constructing works, and carrying on a business. The specific prohibitions are found in Part 15 of the Act (not in the source). The regulations include the EPBC Regulations 2000, which contain a chapter on reserves. These regulations specify which activities require permits, which are prohibited outright, and which are allowed subject to conditions.

The third step is to check if there is a management plan for the park. Management plans are made under s 366 of the EPBC Act and can close certain areas, restrict access, ban specific uses, or require permits. The plan may also identify zones (e.g., wilderness, recreation, marine sanctuary). The plan can restrict activities that the Act might otherwise allow. For example, the Act may allow recreational fishing unless the plan prohibits it. The source does not tell us whether a plan exists for Jervis Bay National Park. Compliance requires determining the current plan status from the Director of National Parks.

If the proposed activity falls into a category that requires an approval (e.g., commercial tour operation, scientific research, or construction of infrastructure), the person must apply under the EPBC Act for a permit or approval. The process may include an environmental assessment, public consultation, and conditions. Approvals are not automatic.

For activities that are prohibited outright (e.g., mining, clearing native vegetation without a permit), the only compliance option is to avoid the activity entirely or to seek an exemption from the Minister. The depth provision means that any sub-surface activity, such as drilling for water, minerals, or geothermal energy, is similarly prohibited.

Those who hold the excluded blocks (ANBG annexe, etc.) or the right of way do not need to comply with the park regime on those excluded areas. However, they must still comply with other laws. The right of way holder must ensure that their use of the easement does not spill over into the park and that any maintenance works on the easement do not damage the park.

Visitors simply need to follow standard park rules: stay on tracks, do not remove plants or animals, do not light fires outside designated areas, and obey any signs. They do not need to seek specific permission for ordinary recreational use.

To summarise the compliance steps: (1) confirm whether the area is inside the park boundaries, including subsoil to 1,000 metres and the marine parcel; (2) identify the relevant prohibitions and permit requirements under the EPBC Act and Regulations; (3) locate any management plan and comply with its specific requirements; (4) if the activity requires a permit, apply in advance; (5) avoid activities that are prohibited outright; (6) if there is doubt, contact the Director of National Parks or the Department of Climate Change, Energy, the Environment and Water for guidance. Failure to comply could result in prosecution, fines, and remediation orders. Given the age of the proclamation and the dynamic nature of boundaries, due diligence must include checking for amending instruments, plans, and recent case law.