Environment Protection and Biodiversity Conservation (South-east Marine Parks Network Management Plan) Instrument 2025
Schedule 2Summary of legislative and policy contexts[4]
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Schedule 2: Summary of legislative and policy contexts[4]
An octopus explores an expansive coral bed in Tasman Fracture Marine Park
Image: An octopus explores an expansive coral bed in Tasman Fracture Marine Park (Institute for Marine and Antarctic Studies)
S2.1 The EPBC Act and EPBC Regulations
At the commencement of this plan, the Australian Government is implementing its commitment to reforming Australia’s environmental laws as set out under the Nature Positive Plan: better for the environment, better for business (Nature Positive Plan). The Nature Positive Plan will involve amendments to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and we acknowledge these amendments may impact the provisions in this schedule.
At the commencement of this plan, the EPBC Act is Australia’s primary environmental legislation.
S2.1.1 Commonwealth reserves
Commonwealth reserves are areas of land or sea that:
the Commonwealth owns or leases
are in a Commonwealth marine area, or
are outside Australia, that the Commonwealth has international obligations to protect,
and which are proclaimed by the Governor-General to be a Commonwealth reserve under section 344 of the EPBC Act.
A proclamation must assign the Commonwealth reserve to an International Union for the Conservation of Nature (IUCN) category and may also divide the reserve into zones and assign each zone to an IUCN category (section 340(1)(2) and (2), EPBC Act).
For the purposes of this plan, all 14 marine parks in the South-east Marine Parks Network (South-east Network) are Commonwealth reserves proclaimed over an area of sea under section 344 of the EPBC Act.
Commonwealth marine areas are a Matter of National Environment Significance and are also subject to the environment assessment and approval process outlined in Section 2.1.5 (Environmental assessment and approval).
The environment of the Commonwealth marine area is considered a Matter of National Environmental Significance and is protected by Part 3 of the EPBC Act.
The Director of National Parks (Director) holds any usage rights that relate to land or seabed in the Commonwealth reserve (section 345A, EPBC Act) and is responsible for the administration and management of Commonwealth reserves under Division 5 of Part 19 of the EPBC Act.
S2.1.2 Management plans
Under section 366 of the EPBC Act, the Director must prepare a management plan for each Commonwealth reserve in accordance with EPBC Act, which must be approved by the Minister under section 370 of the EPBC Act.
Under section 362 of the EPBC Act:
the Director must manage a Commonwealth reserve to give effect to a management plan for the reserve, and
Commonwealth agencies must act so as not to contravene a management plan.
Additionally, a management plan may limit or prohibit the exercise of a power of function under the EPBC Act or Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations) (section 362(3), EPBC Act).
A management plan is a ‘legislative instrument’ for the purposes of the Legislation Act 2003 (Cth) (formerly the Legislative Instruments Act 2003).
S2.1.3 Control of actions in Commonwealth reserves
The EPBC Act and EPBC Regulations prohibit a range of actions being taken in Commonwealth reserves except where the actions are taken in accordance with a management plan in operation for the Commonwealth reserve.
These prohibited actions include those actions in:
sections 354355A of the EPBC Act
Division 12 of the EPBC Regulations.
The prohibited activities in Division 12 of the EPBC Regulations also do not apply if carried out in accordance with the exceptions provided in regulation 12.06(1), including where the activity:
is carried out by:
the Director, and wardens or rangers appointed under the EPBC Act (para (b)),
a Commonwealth agency, or
an agency of a state or self-governing territory and is reasonably necessary for law enforcement (para (j))
is authorised by a permit issued by the Director under Part 17 of the EPBC Regulations (para (c))
is carried out by an Indigenous person under paragraphs (d) or (e)
is approved under Part 9 for certain actions in Commonwealth marine areas and Commonwealth land (para (f))
is in a class of actions declared by the Minister not to require approval in Commonwealth marine areas and Commonwealth land and is taken in accordance with an accredited management plan for the purposes of that declaration (para (g))
is carried out in accordance with a wildlife conservation plan, a recovery plan or a threat abatement plan in force under Division 5 of Part 13 of the EPBC Act (para (h))
is reasonably necessary to deal with an emergency under paragraph (j) or occurs because of unavoidable accident under paragraph (k), or
is carried out in accordance with a lease or licence granted by the Director (para (I)).
The Director may also grant a lease or a licence relating to land or seabed in a Commonwealth reserve in accordance with a management plan (section 358, EPBC Act).
S2.1.4 Access to biological resources
Access to biological resources in Commonwealth areas, which includes Commonwealth reserves, and the sharing of benefits that arise from their use is regulated by the Minister under Part 8A of the EPBC Regulations. To access biological resources in a Commonwealth area, approval needs to be sought from the Minister under Part 8 of the EPBC Regulations or a person the Minister has delegated his or her powers to. At the commencement of this plan, this includes the Director.
Access to biological resources in Commonwealth reserve may additionally be regulated by the Director under the provisions of the EPBC Act and Regulations related to Commonwealth reserves. This can include where the access to biological resources:
involves the killing, injuring, taking, trading, keeping or moving of a member of a
native or non-native species (section 354(1)(a) and 354A of the EPBC Act,
regulations 12.19A12.19B of EPBC Regulations)
involves removal of shells (regulation 12.19)
is for a commercial purpose (sections 354(1)(f) and 354A(5) of EPBC Act and
regulation 12.36 of EPBC Regulations)
is for scientific research (regulation 12.10), or
involves cultivation of plants (regulation 12.21).
S2.1.5 Environmental assessment and approval
The EPBC Act also provides the legal framework to protect and manage Matters of National Environmental Significance.
Under the EPBC Act, a person must not take any action that has, or will have, a significant impact on a Matter of National Environmental Significance without environment assessment and approval under Chapter 4 of the EPBC Act. Some relevant parts under this chapter include:
Part 7, which deals with whether approval of an action is needed
Part 8, which deals with the assessment of controlled actions
Part 9, which deals with the approval of actions and conditions.
There are some circumstances where environment assessment and approval may not be required. These are provided in Part 4 of the EPBC Act.
S2.1.6 EPBC Act and Indigenous traditional rights and native title rights
Native title rights may exist in offshore waters within Australia’s jurisdiction. Native title determinations need not have been made for native title rights to exist.
The EPBC Act (section 8) does not affect the operation of the:
Aboriginal Land Rights (Northern Territory) Act 1967 (Cth)
Native Title Act 1993 (Cth) in particular, section 211, which in certain circumstances allows native title holders to hunt (and undertake other activities) in the exercise of native title rights without a permit or licence.
Section 359A of the EPBC Act further provides that the provisions in the EPBC Act and regulations dealing with Commonwealth reserves (Division 4, Part 15 in EPBC Act and Division 12 of the EPBC Regulations) do not prevent Indigenous people from continuing their traditional use of an area in a reserve for hunting or food gathering (except for purposes of sale) or for ceremonial and religious purposes.
S2.1.7 Penalties
Civil and criminal penalties may be imposed for breaches of the EPBC Act and criminal penalties may be imposed for breaches of the EPBC Regulations.
This Act regulates the loading and dumping of waste at sea and the creation of artificial reefs in Australian waters. The Act gives effect to Australia’s obligations under the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972. Under the Act, dumping at sea is prohibited except for acceptable wastes or other matter that may be considered under a permit.
Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) and Navigation Act 2012 (Cth)
These Acts address the protection of the marine environment from ship-sourced pollution. These Acts implement the International Convention for the Prevention of Pollution from Ships (MARPOL) and certain other international maritime obligations. The Australian Maritime Safety Authority administers the implementing legislation in Commonwealth waters. State and territory governments may implement MARPOL requirements in their coastal waters.
Fisheries Management Act 1991 (Cth)
This Act regulates fishing activities in the Australian Fishing Zone, from the Australian coastline to 200 nm, including waters surrounding external territories.
Underwater Cultural Heritage Act 2018 (Cth)
This Act protects Australia’s shipwrecks, sunken aircraft and other types of underwater cultural heritage, including Australia’s Aboriginal and Torres Strait Islander Underwater Cultural Heritage in Commonwealth waters.
The Australasian Underwater Cultural Heritage Database serves as the register of protected underwater cultural heritage for the Act and provides a portal for the public to submit notifications and permit applications required under the Act. The database contains historical and environmental information about shipwrecks, sunken aircraft and other types of underwater heritage sites located in the Oceania and South-East Asian regions.
Offshore Minerals Act 1994 (Cth)
This Act establishes the regulatory framework for offshore exploration and recovery of minerals within Commonwealth waters. Management of these activities within coastal waters is the responsibility of the relevant state or territory government.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
This Act is the regulatory framework for offshore exploration and production of petroleum and for greenhouse gas storage activities in Commonwealth waters. Management of these activities within coastal waters is the responsibility of the relevant state or territory government.
This Act sets out a licensing and regulatory framework for the construction, operation and decommissioning of offshore renewable energy infrastructure and offshore electricity and transmission infrastructure in Commonwealth waters.
Space (Launches and Returns) Act 2018 (Cth)
This Act establishes a system for regulating civil space and high-power rocket activities in Australia.
S2.3 Other relevant legislation – state
Living Marine Resources Management Act 1995 (Tas)
This Act is Tasmania’s principal legislation to promote the sustainable development of living marine resources.
Fisheries Act 1995 (Vic)
This Act is the legislative framework for the regulation, management and conservation of Victorian fisheries, including aquatic habitats.
Fisheries Management Act 2007 (SA)
This Act and its regulations provide the legislative framework, objectives and guiding principles for the management of fisheries in South Australia.
S2.4 International agreements
This plan takes into account Australia’s obligations under international agreements relevant to the South-east Network. These include:
Convention Concerning the Protection of World Cultural and Natural Heritage
Convention on International Trade in Endangered Species of Wild Fauna and Flora
Unites Nations Convention on Biological Diversity and the Kunming-Montreal Global Biodiversity Framework
MARPOL
1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (The London Protocol)
International Convention for the Regulation of Whaling
UNESCO Convention on the Protection of Underwater Cultural Heritage 2001
United Nations Convention on the Law of the Sea
United Nations Framework on Climate Change 1992
2030 Agenda for Sustainable Development/Sustainable Development Goals (2030 Agenda)
Agreement on the Conservation of Albatrosses and Petrels
Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention)
Agreement between the Government of Australia and the Government of Japan for the Protect on of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA)
Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment (CAMBA)
Agreement between the Government of Australia and the Government of the Republic of Korea for the Protection of Migratory Birds 2007 (RoKAMBA)