Marine Parks Regulations 2023

The Regulations are short and deploy a narrow set of recurring concepts that determine who acts, who pays, what form procedural steps must take, and how administrative discretion is exercised. Major definitional anchors and concepts appear in reg 3 and throughout the operative provisions.

Key definitional and cross-referential concepts:

• Act: the Regulations explicitly adopt the Marine Parks Act 2007 as the primary statutory instrument to which these rules attach (reg 3).
• fee notice: the Regulations import the term “fee notice” from the Legislation (Fees) Act 2019; fees prescribed by fee notice are repeatedly invoked as payable in connection with permit applications, transfers and duplicates (reg 3; regs 8(2)(b), 9(b)(ii)(B), 13).
• Notice media: the Regulations prescribe the media for the Minister’s notice of establishment of a marine park , the Gazette, a newspaper circulating generally within the State, and a Minister-determined website (reg 4). These three outlets constitute the authorised channels for public notice under s 10(7) of the Act.
• Warrant applications: the Regulations distinguish in-person and telephone applications for warrants under s 34 of the Act. Personal applications require affidavit verification of grounds (reg 5(1)). Telephone applications trigger a multi-step protocol: identity and position of the applicant must be stated, the magistrate may proceed based on that information, the magistrate must state the facts justifying the warrant and require an undertaking to file an affidavit, the warrant is effective when signed, and the applicant must forward the affidavit as soon as practicable (reg 5(2)(a)-(g)).
• General duty of care,prescribed circumstances: the Regulations prescribe, for s 37(3) of the Act, that any circumstance involving the exercise of a statutory power by a public authority in an emergency situation is a prescribed circumstance (reg 6). The text defines the universe of circumstances that attract the statutory duty of care, but does not further define “emergency situation.”
• Prescribed rate of interest: for enforcement provisions in ss 39, 41 and 42 of the Act, the Regulation fixes the method to calculate interest: the “prime bank rate” defined as the Commonwealth Bank of Australia’s corporate loan reference rate on the first trading day of the Bank in each relevant financial year (reg 7(1)-(2)). The rate is applied for each financial year the amount remains unpaid.
• Permit regimes: the Regulations set out procedural rules for variation of permit conditions (application form/manner; fee notice payment) (reg 8), transfer of permits for “prescribed activities” tied to certain zoning regulation entries (reg 9(a)), prescribed transfer conditions including Ministerial consent, form and fee requirements, fitness and propriety scrutiny, and prohibition on changing permit conditions or expiry dates on transfer (reg 9(b)(i)-(iv)).
• Application validation and lapse: the Minister may require further information (statutory declaration if required) and may request remediation of defects; if the applicant fails to comply within 60 days or a longer period the Minister allows, the application lapses (regs 10-11).
• Fee discretion and duplications: the Minister can waive fees where applications relate to a statutory authorisation or Commonwealth authorisation or in other appropriate cases; duplicate permits may be issued on payment of the fee prescribed by fee notice (reg 12; reg 13).
• Expiation: the Regulations set a fixed expiation fee of $315 for an alleged offence against s 20 of the Act (reg 14).
• Transitional concept: the Regulations repeal the 2008 Regulations and convert outstanding applications under specified old provisions into new-regulation applications (Schedule 1).

These concepts frame the operational mechanics: who must make or respond to affidavits or statutory declarations, what media constitute public notice, how interest is calculated on unpaid enforcement amounts, and what administrative steps the Minister can take in relation to permits. The Regulations therefore serve as the primary source for routine administrative decision-making under the Act.

The Regulations create procedural obligations that directly affect a limited set of actors. The principal actors named in the text are the Minister, magistrates, applicants (including permit holders and proposed transferees), public authorities acting under statutory powers in emergencies, the Commonwealth Bank of Australia for the purpose of fixing the interest benchmark, and the publishers of the Gazette and a newspaper circulating generally within the State.

Primary categories of affected persons and entities:

• The Minister: the Regulations allocate duties to the Minister to publish notices of park establishment in specified media (reg 4), to determine the manner and form of applications and requests for information (regs 8(2)(a), 9(b)(ii)(A), 10, 11(1)), to vary permit conditions on application (reg 8(1)), to give or refuse consent to transfers (reg 9(b)(i)), to assess fitness and propriety of proposed transferees (reg 9(b)(iii)), to waive fees in specified circumstances (reg 12) and to issue duplicate permits (reg 13). The Minister also has discretion to allow extensions beyond the 60-day lapse period (reg 11(3)).
• Applicants for warrants and magistrates: warrant applicants are required to verify grounds by affidavit if applying in person (reg 5(1)). For telephone applications the applicant must identify themselves and their position, state the purpose and grounds for the warrant, give an undertaking to file an affidavit, and forward that affidavit as soon as practicable after the warrant is signed (reg 5(2)(a)-(g)). Magistrates are given procedural authority under reg 5(2) to rely on information provided by an applicant and to require an undertaking to verify the stated facts.
• Permit holders and prospective permit holders: those holding or applying for permits under the Act are affected by the procedural requirements for variation (reg 8), transfers (reg 9), further information and statutory declarations (reg 10), remedies for defective applications and the risk of lapse (reg 11), fee waiver conditions (reg 12), and duplicate permit issuance (reg 13).
• Proposed transferees: transfers of permits for prescribed activities require Ministerial consent, payment of a fee, and a fitness and propriety assessment of the proposed transferee (reg 9(b)(ii)-(iii)). The transferee must also accept that no change in conditions or expiry will follow the transfer (reg 9(b)(iv)).
• Public authorities: the Regulations expressly prescribe that any circumstance involving the exercise of a statutory power by a public authority in an emergency situation is a circumstance to which the general duty of care under s 37(3) of the Act applies (reg 6). This places public authorities within the regulatory scope when acting in emergency conditions.
• Financial benchmark keeper: the Commonwealth Bank of Australia is named only for the limited purpose of supplying the corporate loan reference rate that determines the prescribed “prime bank rate” for interest on unpaid amounts under ss 39, 41 and 42 of the Act (reg 7(2)). The practical effect is that unpaid enforcement amounts will be indexed to a purely external bank reference rate.
• Publishers and internet hosts: to the extent the Minister must publish establishment notices as required by reg 4, the Gazette, a newspaper circulating generally within the State, and a Minister-determined website will be used as publication channels.

Indirectly affected parties include persons alleged to commit offences under s 20 of the Act, who may choose expiation by payment of $315 (reg 14), and any third parties whose economic activity depends on permits for activities listed in the cited zoning regulation entries referenced in reg 9(a).

Who pays: applicants and permit holders bear fee obligations where fees are prescribed by fee notice for permit applications, transfers and duplicate permits (regs 8(2)(b), 9(b)(ii)(B), 13). Failing to pay may lead to lapsed applications under reg 11.

Who decides: the Minister controls many administrative gateways (notice publication site, application form and manner, fee waivers, consent to transfer, fitness and propriety), while magistrates control warrant issuance subject to the telephonic procedure set out in reg 5.

The Regulations allocate clear duties to the Minister, applicants, magistrates and public authorities, and create rights for permit holders and alleged offenders to administrative remedies. These duties and rights are procedural and administrative in character.

Ministerial duties and powers:

• Publish notice of any proclamation establishing a marine park in specified media: Gazette, a newspaper circulating generally within the State and a website determined by the Minister (reg 4). This is a prescriptive publication duty, not a discretionary communication method.
• Determine the manner and form of permit applications and transfer applications, and require payment of fees prescribed by fee notice (regs 8(2)(a)-(b), 9(b)(ii)(A)-(B)). The Minister has the regulatory gatekeeper role over forms and fee administration.
• Vary a condition of a permit on application made by the holder (reg 8(1)). This is a power to make amendments to permits, but only upon application by the permit holder.
• Require further information from any person who applies for a permit or any application under Part 3, with the ability to require statutory declaration verification where the Minister so requires (reg 10). This is an evidence-gathering prerogative.
• Request remedy of defects or deficiencies in applications; request payment of outstanding fees or outstanding information; and allow applications to lapse if a request is not complied with within 60 days or a longer period the Minister may allow (reg 11(1)-(3)). The Minister thus controls the lifecycle of applications.
• Waive or refund permit fees where the application relates to a statutory authorisation or a Commonwealth authorisation, or where it is otherwise appropriate in a particular case (reg 12). This creates an administrative discretion with specified rationales.
• Issue duplicate permits on payment of the fee prescribed by fee notice (reg 13). This is a ministerial administrative function.

Magistrate duties and powers on warrants:

• Accept affidavit-verified grounds for personal applications (reg 5(1)).
• In telephone applications, accept the applicant’s identification of name and position and may assume without further inquiry that the applicant occupies the stated position (reg 5(2)(a)). The magistrate must be informed of purpose and grounds (reg 5(2)(b)), state the facts that justify issuing the warrant before issuing it and require an undertaking to file an affidavit verifying those facts (reg 5(2)(c)), may sign and note the justifying facts on the warrant (reg 5(2)(d)), and must inform the applicant of the terms of the warrant (reg 5(2)(f)). The magistrate also determines when a telephone-issued warrant comes into force by signing it (reg 5(2)(e)).

Applicant duties and rights:

• Applicants for warrants who apply in person must verify grounds by affidavit (reg 5(1)). Telephone applicants must supply identity, purpose and grounds, make an undertaking to file an affidavit and forward the affidavit as soon as practicable after the warrant is signed (reg 5(2)(a)-(g)).
• Applicants for permits must provide any information required by the Minister, and verify it by statutory declaration if the Minister so requires (reg 10). Applicants may be asked to remedy defects and must comply within 60 days to avoid lapse (reg 11).
• Permit holders have the right to apply for variation of permit conditions; the Minister may vary conditions on such application (reg 8(1)).
• Holders and transferees have rights established by the transfer conditions: transfers require consent, proper form and payment, and the Minister must consider fitness and propriety (reg 9(b)(i)-(iii)). The transferee also has the right to receive the permit subject to the existing conditions and expiry date (reg 9(b)(iv)).

Public authority duties:

• When exercising a statutory power in an emergency situation, a public authority is within the prescribed circumstances for the Act’s general duty of care (reg 6). This places obligations on public authorities when operating in emergency contexts, though the content of the duty derives from the Act itself rather than the Regulations.

Obligations relating to payment and enforcement:

• Fees for applications, transfers and duplicates are payable as prescribed by fee notice; the Minister may waive or refund in certain circumstances (regs 8(2)(b), 9(b)(ii)(B), 13, 12).
• The prescribed interest on unpaid amounts under certain enforcement provisions of the Act is the corporate loan reference rate applied by the Commonwealth Bank of Australia on the first trading day of the Bank in each financial year (reg 7(1)-(2)).
• The Regulations fix an expiation fee of $315 for an alleged offence against s 20 of the Act, giving an immediate administrative remedy for alleged contraventions (reg 14).

These duties and rights are largely procedural. They allocate clear administrative power to the Minister and procedural oversight to magistrates on warrants. They create predictable administrative consequences for non-compliance (application lapse after 60 days, verification requirements), and set financial parameters for fees, duplicates and expiation.

The Regulations do not create new criminal offences beyond prescribing an expiation fee and setting out procedures that support the Act’s enforcement architecture. Instead, they channel how enforcement-related processes operate and how monetary consequences are calculated.

Expiation:

• The Regulations set a specific expiation fee of $315 for an alleged offence against section 20 of the Act (reg 14). The expiation provision is a statutory administrative option for an alleged contravention of that section. The Regulations fix the dollar amount for the expiation mechanism; the underlying offence and availability of expiation derive from the Act (reg 14).

Interest on unpaid amounts and enforcement financials:

• For the purposes of enforcement provisions in sections 39(5)(a), 41(5)(a) and 42(8)(a) of the Act, the Regulations prescribe the annual rate of interest on unpaid amounts as the “prime bank rate” (reg 7(1)). The “prime bank rate” is defined as the Commonwealth Bank of Australia corporate loan reference rate on the first trading day of the Bank in each financial year (reg 7(2)). The practical effect is that any unpaid amount under those enforcement sections accrues interest at a floating rate tied to the CBA corporate loan benchmark for each year the amount remains unpaid (reg 7(1)-(2)).

Warrants and judicial oversight:

• The Regulations prescribe verification procedures for applications for warrants under section 34 of the Act. Personal applications require affidavit verification of grounds (reg 5(1)). Telephone applications are permitted but only under a defined protocol: the applicant must identify their name and position to the magistrate, state purpose and grounds, undertake to make an affidavit verifying the facts the magistrate relies upon, and forward that affidavit as soon as practicable after the warrant is issued (reg 5(2)(a)-(g)). Magistrates may assume, without further inquiry, that the applicant holds the stated position once informed (reg 5(2)(a)), but must inform the applicant of the facts they consider justify issuing the warrant and must not proceed without an undertaking to verify those facts (reg 5(2)(c)). Thus the Regulations aim to ensure a post-issue evidentiary record while permitting urgent telephonic issuance.

Application lapse and administrative consequence:

• If an applicant fails to comply with a Ministerial request to remedy an application defect, pay the relevant fee or provide outstanding information within 60 days or such longer period as the Minister allows, the application lapses (reg 11(3)). Application lapse is an administrative consequence that removes the pending status of an application, requiring reapplication if the applicant wishes to proceed.

Permit transfer controls:

• Transfers of permits for certain prescribed activities are constrained: Ministerial consent is required, forms and fees must be provided, the proposed transferee must be found to be fit and proper by the Minister, and the transfer cannot change permit conditions or expiry dates (reg 9(b)(i)-(iv)). These requirements are gatekeeping controls that limit changes in legal title to permits and embed Ministerial discretion into the transfer process.

Ministerial discretion with accountability implications:

• The Minister’s discretion to waive fees (reg 12), to determine the form and manner of applications (regs 8(2)(a), 9(b)(ii)(A)) and to require verification by statutory declaration (reg 10) is coupled with specific procedural rules that create administrable conditions and limits (for example, specified circumstances for fee waiver and the 60-day lapse rule).

Enforcement architecture summary:

• The Regulations give effect to enforcement actions and administrative remedies provided in the Act by setting processes for warrants, prescribing how interest is calculated on unpaid enforcement amounts, fixing an expiation fee for a specified offence, and establishing default administrative consequences for failed applications. The Regulations do not themselves create new penal offences; they prescribe the mechanics for enforcement of the Act’s existing penalties and civil remedies.

The Regulations operate as subordinate legislation under the Marine Parks Act 2007 and expressly cross-reference and import elements from other statutory instruments. The text sets out how the Regulations are intended to supply procedural detail to particular sections of the Act and how they relate to other regulations and Acts.

Primary statutory interactions:

• Marine Parks Act 2007: Each of at least regs 4, 5, 6 and 7 is expressly linked to particular provisions of the Act: reg 4 supplies the method of giving notice for the purposes of section 10(7) of the Act; reg 5 prescribes requirements for applications for warrants under section 34(6) of the Act; reg 6 prescribes circumstances for the operation of the Act’s general duty of care under section 37(3); and reg 7 prescribes the rate of interest for enforcement provisions in sections 39, 41 and 42 of the Act. The Regulations therefore function as subordinate rules detailing the operation of those sections (regs 4-7).
• Legislation (Fees) Act 2019: The term “fee notice” is taken from the Legislation (Fees) Act 2019 and is deployed to identify which fees are payable in connection with permit applications, transfers and duplicates (reg 3; regs 8(2)(b), 9(b)(ii)(B), 13). The Regulations do not themselves set the quantum of those fees (except where they fix the expiation fee in reg 14); they rely on fee notices under the Legislation (Fees) Act for fee-setting.
• Marine Parks (Zoning) Regulations 2012: The Regulations refer to the zoning regulations to define which permits are “prescribed activities” for the purposes of transfer restrictions. Specifically, reg 9(a) makes a permit a prescribed activity if it is for an activity referred to in regulation 8(3)(g) to (k) of the Marine Parks (Zoning) Regulations 2012. This cross-reference imports the zoning regulation’s activity classification as the trigger for special transfer conditions.
• Commonwealth Bank of Australia corporate loan reference rate: For the interest on unpaid amounts under specified enforcement sections of the Act, the Regulations define “prime bank rate” by reference to the corporate loan reference rate applied by the Commonwealth Bank of Australia on the first trading day of the Bank in a financial year (reg 7(2)). This is a direct link to an external financial benchmark that changes annually.
• State publication mechanisms: Reg 4’s requirement of notice in the Gazette and in a newspaper circulating generally within the State presupposes the continued operation of those publication channels; the Gazette is a statutory vehicle for government notices. The addition of a Minister-determined website is a modernisation of required notice media, but the Regulations do not alter the statutory status of the Gazette or newspaper requirements.
• Repeal and transitional arrangements: Schedule 1 repeals the Marine Parks Regulations 2008 and transitions pending applications under certain old regulation numbers into the corresponding new regulations (Schedule 1, Part 2). This creates legal continuity for applications lodged under the old regime and sets out the mapping from existing submissions to the new procedural framework.

Operational interactions and limits:

• The Regulations fill procedural gaps and supply standards of proof and administrative steps that the Act delegates to subordinate legislation, but they preserve the Act’s substantive distribution of powers, offences and duties. For example, the Regulations do not alter the substantive content of offences under the Act but fix the expiation fee for one statutory breach (reg 14).
• By tying fee obligations to fee notices under the Legislation (Fees) Act, the Regulations leave fee quantum and fee-setting mechanics to that separate framework, rather than embedding them within the Regulations themselves (regs 3, 8, 9, 13).
• The fitness and propriety assessment for permit transferees is a Ministerial evaluative test located in the Regulations (reg 9(b)(iii)); how that test interacts with administrative law review or other State laws is not specified in these Regulations but the requirement creates a decision amenable to any remedies available under general administrative law principles.

What the Regulations do not do:

• They do not amend the Act itself or change substantive offences beyond fixing the expiation amount for s 20 (reg 14).
• They do not set the full schedule of fees; they rely on the fee notice regime (regs 8(2)(b), 9(b)(ii)(B), 13).
• They do not provide definitions for certain terms left undefined here, for example they do not define “emergency situation” beyond saying that any circumstance involving the exercise of a statutory power by a public authority in an emergency situation is a prescribed circumstance for the duty of care (reg 6).

In short, the Regulations are a bridge between the Act’s broad powers and the concrete administrative practice required to give those powers effect while integrating with the State’s fee-setting framework and existing zoning regulations.

The Regulations are recent subordinate legislation and the text contains a succinct legislative history and an express repeal of the prior subordinate instrument.

Key entries in the Regulations’ amendment and commencement history:

• The Regulations are the Marine Parks Regulations 2023, cited as such by reg 1 (reg 1).
• They commence on the day on which they are made (reg 2). The Legislative history note at the end records the principal regulation as Year 2023, No 69, with Gazette entry 27.7.2023 p2376, and commencement recorded as 27.7.2023 under r 2 (Legislative history; reg 2).
• Schedule 1, Part 1 expressly repeals the Marine Parks Regulations 2008 (Schedule 1, Part 1, reg 1). The repeal is absolute as stated: “The Marine Parks Regulations 2008 are repealed.”
• Schedule 1, Part 2 provides transitional provisions to preserve continuity for certain applications that were made under the 2008 Regulations but not determined before commencement. Two transitions are set out:
  • Applications for variation of permit conditions under regulation 10 of the repealed regulations made but not determined immediately before commencement are taken to be applications under regulation 8 of the 2023 Regulations (Schedule 1, Part 2, cl 2(1)).
  • Applications for consent to transfer a permit under regulation 11(b) of the repealed regulations made but not determined immediately before commencement are taken to be applications under regulation 9(b) of the 2023 Regulations (Schedule 1, Part 2, cl 2(2)).
• The Schedule also defines “repealed regulations” as the Marine Parks Regulations 2008 for the purposes of the transitional clause (Schedule 1, Part 2, cl 2(3)).

There are no other amendments recorded in the text. The Regulations do not themselves contain a history of amendment beyond the principal regulation entry, the commencement date and the express repeal and transitional mapping from the 2008 Regulations. The legislative history section directs readers seeking further information to the Index of South Australian Statutes or the official legislation website (Notes).

Practically, these entries show:

• A clean replacement of the 2008 subordinate instrument with the 2023 Regulations, accompanied by limited transitional measures to avoid losing the status of pending variation and transfer applications that were underway under the old regime (Schedule 1).
• Immediate commencement upon making, as set out by reg 2 and recorded in the Gazette entry on 27 July 2023 (reg 2; Legislative history).

No subsequent amending instruments, variations or revocations are recorded in the document supplied.

The Regulations themselves contain no case law, and the text does not record any litigation history. There are no judicial decisions, appeals, or reviews cited in the Regulations. The Legislative history section provides only the registry entry for the principal Regulations (2023 No 69) and the commencement detail; it does not record any matters of judicial interpretation.

What the absence of litigation history in the text means for practitioners:

• There is no authority within these Regulations to cite on points of interpretation beyond the text itself and its cross-references. Any questions about the practical application or validity of a particular procedural requirement therefore must be addressed by reference to the statute (the Act), the Regulation provisions, and general principles of administrative law and statutory interpretation, rather than to settled case law specific to these Regulations.
• The Regulations contain procedural rules that could generate future points of dispute likely to arise in litigation or review. Examples of potential interpretive disputes that the text itself highlights include:
  • The scope of the Minister’s discretion to determine “manner and form” of applications and to require statutory declarations (regs 8(2)(a), 10).
  • The fidelity of the telephonic warrant procedure to fair process and the evidentiary sufficiency of the post-facto affidavit required by reg 5(2)(g).
  • The standard to be applied in the Minister’s fitness and propriety assessment of a proposed transferee (reg 9(b)(iii)), and how that intersects with natural justice requirements in administrative decision-making.
  • The proper application of the 60-day lapse rule and the Minister’s power to extend the period (reg 11(3)).
  • The legal character of the “emergency situation” referenced in reg 6 and the contours of the resulting duty of care under s 37(3) of the Act.
• Any future litigation would need to be grounded in the Act, these Regulations, and administrative law principles because the Regulations do not themselves provide statutory guidance about judicial review or appeal routes.

Because no cases are named or summarised in the Regulations, practitioners must rely on primary statutory text and any applicable general administrative law authority external to this instrument when advising clients or litigating matters arising under these Regulations.

The Regulations are concise but include several precise procedural constraints and points where administrative discretion or timing can create practical pitfalls. The following are salient operational risks and traps for practitioners to note, grounded in the text.

1. Affidavit and telephonic warrant timing requirements (reg 5)

• For telephone warrant applications, the magistrate may sign the warrant once the applicant undertakes to make an affidavit verifying the facts. The applicant must forward an affidavit “as soon as practicable” after the issue of the warrant (reg 5(2)(c)-(g)). There is no fixed deadline in the Regulations for that affidavit; “as soon as practicable” is open-ended and fact-dependent. Practitioners should document the timing and steps taken to comply, because later challenges to the warrant’s validity could focus on the delay or content of the affidavit.

2. Magistrate’s entitlement to assume applicant’s position (reg 5(2)(a))

• When a telephone applicant identifies their name and position, the magistrate is “entitled to assume, without further inquiry, that the applicant holds that position.” That precludes initial magistratal verification. A later challenge might turn on whether the assumed position had actual authority. Practitioners should ensure formal proof of position accompanies the subsequent affidavit to avoid undermining the warrant’s validity.

3. Lapse of applications after 60 days (reg 11(3))

• The Minister may request remedy of defects and the applicant has 60 days to comply or the application lapses. A failure to pay a fee or supply outstanding information within that timeframe extinguishes the application unless the Minister extends the period. Practitioners must monitor response deadlines carefully and seek extensions proactively where necessary.

4. Minister’s discretion over manner and form and its evidential consequences (regs 8(2)(a), 9(b)(ii)(A), 10)

• The Minister determines the “manner and form” of applications and may require statutory declarations verifying information. The Regulations do not limit the content of the Minister’s forms or the particulars required. Applicants should preserve copies of forms and correspondence specifying the Minister’s requirements to prevent surprise requests later in the process.

5. Transfer restrictions and prohibition on changing conditions or expiry (reg 9(b)(iv))

• A permitted transfer of a permit for prescribed activities may not change permit conditions or the permit’s expiry date. Transferees must accept permits as-is. This can be commercially material where a buyer seeks different rights or a longer term. Parties should factor this immutability into transaction pricing and negotiation.

6. Fit and proper person assessment (reg 9(b)(iii))

• The Minister must, in the Minister’s opinion, be satisfied that the proposed transferee is fit and proper to hold the permit. The Regulations do not define the test. Parties should expect a potentially fact-intensive inquiry and prepare supporting material to address the Minister’s concerns.

7. Fees set by fee notice (regs 8(2)(b), 9(b)(ii)(B), 13)

• The Regulations require payment of fees “prescribed by fee notice” rather than specifying amounts (except the s 20 expiation fee). Practitioners should consult the relevant fee notice under the Legislation (Fees) Act 2019 to identify current fee amounts and to anticipate future fee changes that could affect application costs.

8. Interest rate tied to external bank reference (reg 7)

• The prescribed rate of interest for unpaid amounts is tied to the Commonwealth Bank of Australia’s corporate loan reference rate on the first trading day of the Bank in a financial year. This means interest can change annually independent of State policy and could be higher than standard statutory rates; practitioners should calculate projected accruals when advising clients about deferred payments or enforcement exposure.

9. Ministerial unfettered powers to waive fees (reg 12)

• While the Minister may waive fees where an application relates to a statutory authorisation or Commonwealth authorisation, the Regulation also permits waivers where “it is otherwise appropriate to do so in a particular case.” The broad phrasing leaves room for ad hoc waivers and potential perceptions of inconsistency. Record-keeping and transparency in requests for waiver will be important for administrative fairness and for any subsequent review.

10. Transition mapping may not capture every pending matter (Schedule 1)

• The transitional provisions map only specified pending applications under the repealed regulations to the new regs (Schedule 1, cl 2). If an application under the old regulations does not fall within the mapped provisions, practitioners should scrutinise whether other transitional measures apply or whether a fresh application is necessary.

11. Expiation fee applies only to s 20 (reg 14)

• The fixed expiation fee of $315 is limited to alleged offences against s 20 of the Act. Other offences under the Act may not have expiation mechanisms or may have different amounts. Practitioners should not assume uniformity of expiation across sections.

12. “Emergency situation” undefined (reg 6)

• Reg 6 prescribes that any circumstance involving the exercise of a statutory power by a public authority in an “emergency situation” is a prescribed circumstance for the general duty of care under s 37(3). The Regulation does not define “emergency situation.” That absence could generate interpretative dispute over when the duty of care provision is engaged.

These are practical chokepoints the text creates. The Regulations centralise several gatekeeping powers in the Minister and set timing rules that can produce immediate procedural consequences such as lapsing of applications or contingent validity of warrants, and they link financial exposure to external market benchmarks.

The Regulations are primarily procedural. Compliance requires attention to timing, verification, prescribed forms and payment of fees where required. The following checklist converts each operative regulation into concrete steps and risk management measures.

1. Notices of marine park establishment (reg 4)

• If you represent the Minister or the Minister’s office, ensure any proclamation to establish a marine park is published in three outlets: the Gazette, a newspaper circulating generally within the State, and on a website determined by the Minister. Keep records (screenshots and copies) of each publication and retain the Ministerial determination identifying the website used.

2. Applications for warrants (reg 5)

• Personal (in-person) warrant applications: verify the grounds by affidavit before presenting them to the magistrate. Prepare and execute the affidavit in the required form.
• Telephone warrant applications: be prepared to state your name and precise position for the purposes of the Act, state the purpose of the warrant and the grounds for it. If the magistrate requires an undertaking to verify the facts, make that undertaking only knowing that an affidavit must be forwarded “as soon as practicable” thereafter. Keep a contemporaneous record of the telephonic exchange, the undertaking, and the date the affidavit is forwarded to the magistrate. Ensure the affidavit addresses the specific facts the magistrate stated justified the warrant, because the magistrate will note those facts on the warrant.

3. General duty of care in emergencies (reg 6)

• Public authorities exercising statutory powers in emergency situations should document the statutory power exercised, the emergency circumstances, and the decision-making process meeting any duty of care obligations under s 37(3) of the Act. While reg 6 prescribes that such circumstances are within the duty’s scope, the authorities should preserve contemporaneous evidence that the exercise met applicable standards to manage legal risk.

4. Interest on unpaid amounts (reg 7)

• Parties facing unpaid amounts under ss 39, 41 or 42 of the Act should calculate annual interest using the Commonwealth Bank of Australia corporate loan reference rate on the first trading day of the Bank in the relevant financial year. Maintain a record of the reference rate used for each year an amount remains unpaid and apply that rate to calculate the prescribed interest.

5. Varying permit conditions (reg 8)

• Permit holders seeking a variation must apply to the Minister using the manner and form determined by the Minister and must pay the fee prescribed by fee notice. Check the Minister’s current form and the fee notice in force and attach required supporting material. Anticipate the Minister may require further information or verification by statutory declaration.

6. Transferring permits (reg 9)

• Confirm that the permit in question is for a “prescribed activity” by cross-referencing regulation 8(3)(g)-(k) of the Marine Parks (Zoning) Regulations 2012 as cited in reg 9(a).
• Prepare an application for consent to transfer in the manner and form determined by the Minister, and pay the applicable fee prescribed by fee notice (reg 9(b)(ii)).
• Prepare material to demonstrate the proposed transferee is fit and proper, addressing any probity, insolvency, compliance history, or other factors the Minister may consider (reg 9(b)(iii)).
• Be aware that the Minister will not allow any change to the permit’s conditions or expiry date as part of the transfer (reg 9(b)(iv)). Adjust commercial arrangements accordingly.

7. Providing further information and remedying defects (regs 10-11)

• On any Ministerial request for further information, provide the information promptly and be prepared to verify it by statutory declaration if asked (reg 10).
• If the Minister requests remediation of application defects, comply within 60 days or seek an extension from the Minister in writing before the 60-day period expires. Non-compliance causes the application to lapse (reg 11(3)). Keep proof of postage or electronic transmission for all documents supplied.

8. Fee waivers and duplicates (regs 12-13)

• If a fee payment presents an obstacle, consider applying for a waiver where the application is connected to a statutory authorisation or a Commonwealth authorisation, or where you can show it is otherwise appropriate under reg 12. Provide evidence for the waiver request and allow time for Ministerial consideration.
• For duplicate permits, apply to the Minister and pay the fee prescribed by fee notice. Maintain records of duplicate issuance.

9. Expiation fee (reg 14)

• For alleged offences under s 20 of the Act, advise clients that an expiation fee of $315 is fixed by the Regulations. Confirm whether payment of the expiation concludes the matter administratively under the Act; consult the Act for procedural steps accepting an expiation.

10. Transitional cases (Schedule 1)

• If you have applications pending that were lodged under the repealed 2008 Regulations and concern variation of permit conditions or consent to transfer as specified, ensure those applications are treated as applications under the corresponding new regulations (Schedule 1, cl 2). For other pending matters, verify whether the transitional mapping applies or whether fresh lodgement is required.

Record-keeping and audit trail:

• Given the Minister’s discretion over forms and the requirement for statutory declarations and affidavits, preserve copies of all submissions, statutory declarations, affidavits, receipts for fees paid, notices of lapsed applications, waivers granted, website notices, and the dates each action was taken.
• For telephonic warrant procedures, document the telephonic interaction contemporaneously and file the required affidavit immediately after issuance to reduce exposure to challenge.

Proactive risk management:

• For permit transfers and variations, obtain pre-lodgement guidance from the Minister’s office about expected documentary requirements and likely timelines.
• Where interest exposure is possible, obtain the CBA corporate loan reference rate for applicable years and incorporate the projected interest into any settlement or negotiation strategy.
• Where the Minister’s consent is required, address potential fitness and propriety concerns early, including corporate structure, compliance history and relevant probity matters.

Compliance under these Regulations is primarily about following procedurally defined steps, meeting evidentiary verification requirements, and observing timing constraints. Good administrative practice, precise record-keeping and early engagement with Ministerial instructions reduce the risk of application lapses, enforcement exposure or procedural challenge.