Marine Parks (Statutory Authorisation Compensation) Regulations 2015

The Marine Parks (Statutory Authorisation Compensation) Regulations 2015 (SA) provide the procedural machinery for compensating holders of statutory authorisations when the creation of a marine park zone or the imposition of a temporary prohibition or restriction within a marine park affects their rights. The regulations are made under section 21 of the Marine Parks Act 2007. They establish a framework that applies to rights conferred by authorisations issued under other Acts - for example, a commercial fishing licence under the Fisheries Management Act 2007, an aquaculture permit, or a mineral exploration licence under the Mining Act 1971. The regulations do not create the entitlement to compensation; that entitlement arises from the parent Act. Instead they set out the steps for claiming, assessing and paying compensation, as well as the mechanism for compulsory acquisition of the authorisation or an interest in it.

Mechanically, the regulations allow a holder whose rights are affected to apply to the Minister for compensation. The application must include detailed information about the zone or restriction, the authorisation, how rights have been affected, the amount claimed and supporting evidence. The Minister must then determine whether it would be appropriate to compulsorily acquire the authorisation or any interest in it. That determination is subject to written notice to the applicant. The Minister may also refer the application to an advisory panel for advice on the appropriate amount of compensation. Critically, the Minister may pay compensation even without an application - a provision that gives the executive the power to initiate compensation unilaterally.

The determination process includes the possibility of an advisory panel making recommendations on “fair and reasonable compensation” having regard to the extent rights have been affected, the fair market value of the affected rights, and any other matters the panel thinks fit. The Minister makes the final determination and must give written reasons. If a compulsory acquisition occurs, the holder is prohibited from entering into any transaction in respect of the statutory authorisation without first disclosing that fact; failure to disclose renders any resulting contract voidable at the option of the counterparty. The holder has a right to internal review by the Minister within 21 days of the determination, and thereafter an appeal to the Environment, Resources and Development Court. The regulations apply retrospectively to rights affected before their commencement, and the Minister may treat any pre-commencement application for compensation as if made under these regulations.

Statutory authorisation: The regulations operate on rights conferred by a “statutory authorisation under another Act”. This is not defined further in the regulations but typically includes licences, permits, leases or other instruments granted under state legislation that allow the holder to undertake activities such as fishing, aquaculture, mining or other commercial uses of marine areas. The authorisation is the source of the rights that are said to be affected.

Affected rights: The trigger for compensation is that, “as a result of the creation of a zone or the imposition of a temporary prohibition or restriction of activities within a marine park, the rights conferred by a statutory authorisation under another Act are affected”. The regulations do not define “affected” but the concept carries over from section 21 of the Marine Parks Act. It covers both total extinguishment and partial restriction of rights.

Compensation: Two types are contemplated. First, compensation for affected rights without any acquisition - a payment that recognises the reduction in value of the authorisation short of full taking. Second, compensation for compulsory acquisition of the statutory authorisation itself or an interest (or part of an interest) in it. The regulations treat both under the same procedural framework.

Fair market value of the affected rights: This is the primary criterion the advisory panel must consider in recommending “fair and reasonable compensation”. It suggests a market-based measure: what a willing buyer would pay for the bundle of rights that remain, compared to what would have been paid without the park restriction. The panel may also consider any other matters it thinks fit, which could include loss of profits, goodwill or special value to the holder.

Advisory panel: A three-member body established by the Minister, composed of persons with experience in law or public administration; financial matters, economics or asset evaluation; and the industry in which holders of relevant authorisations operate. The panel is advisory only; its recommendations are not binding on the Minister. The Minister sets the members’ terms and conditions and may give directions on procedures.

Acquisition: When the Minister determines to compulsorily acquire the authorisation or an interest, a notice of acquisition specifies the effective date, after which the authorisation or interest vests in the Minister. The minister responsible for the issuing Act must then cancel the authorisation or adjust it to remove the acquired interest.

The regulations directly affect persons who hold a statutory authorisation granted under another Act and whose rights are diminished by the creation of a marine park zone or the imposition of a temporary prohibition or restriction. This group includes commercial fishers, aquaculture operators, persons holding mining or petroleum exploration licences that cover marine park areas, operators of marine infrastructure such as jetties or pipelines, and any other entity that requires a state-issued authorisation to conduct activities in a marine park. The effect is not limited to the direct holder; it also extends to parties who deal with that holder, such as financiers, purchasers of the business, or joint venturers, because the disclosure obligation under regulation 9 can make contracts voidable.

The Minister for the purposes of the Marine Parks Act is the key government decision-maker. The Minister appoints advisory panel members, determines the amount of compensation, decides whether to acquire the authorisation, and also conducts the internal review. The Minister responsible for the Act under which the statutory authorisation was issued must take administrative action following an acquisition - cancelling the authorisation or adjusting it. Advisory panel members are appointed on terms determined by the Minister; they are not independent contractors but serve at the Minister’s pleasure. The Environment, Resources and Development Court hears appeals and may confirm, vary or revoke determinations.

The South Australian taxpayer ultimately funds any compensation paid, and the amount of compensation will affect the state’s budget. However, the regulations do not create any public participation rights or duties for third parties such as environmental groups or local communities.

The transitional provisions mean that persons whose rights were affected before 5 March 2016 can still make a claim under the regulations, and the Minister can accept pre-commencement applications. This retrospective application may affect rights that had already been restricted for years, potentially giving holders a belated claim for compensation.

The primary duty of the holder of a statutory authorisation is to submit a properly documented application if they wish to claim compensation on a voluntary basis. The application must be in writing, identify the zone or restriction, identify the authorisation, include details of how and to what extent rights are affected, specify the amount claimed, and be accompanied by evidence. The holder must also provide a residential or registered address or a fax number or email for notices, and provide details of an ADI account for payment. If the Minister requests further information, documents or records, the holder must provide them within 28 days or such longer period as the Minister allows; failure to do so allows the Minister to proceed without that information, which may prejudice the claim.

Once the holder receives a notice of determination that includes an intention to compulsorily acquire the authorisation or an interest, a significant duty arises under regulation 9: the holder must not enter into any transaction in respect of the statutory authorisation without first disclosing that fact. This is a strict obligation with no exception for ignorance. If a contract or agreement is entered into without disclosure, the contract is voidable at the option of the person to whom disclosure should have been made. This creates a commercial risk for both the holder and any third party dealing with them.

The holder has several rights. The right to apply for compensation is the central one, but the regulations also provide a right to seek internal review of the Minister’s determination within 21 days of receiving the notice under regulation 8. Following the review decision, the holder may appeal to the Environment, Resources and Development Court within 21 days. The court may dispense with the appeal period if it is just and reasonable. The holder also has the right to have the application considered; the Minister must give written reasons for the determination and, if an acquisition is proposed, a notice of acquisition specifying the effective date. The holder can only challenge the compensation determination through these prescribed channels; there is no option to refuse the acquisition and demand a different remedy.

The Minister’s duties include determining whether to acquire, giving notice with reasons, setting out review and appeal rights, and if a request for review is received, reviewing the determination and giving written reasons. The Minister may, but is not required to, refer an application to an advisory panel. If the Minister does refer it, the panel must provide recommendations. The Minister must also provide the panel with information as the panel reasonably requires.

The regulations do not create criminal offences or civil penalties for non-compliance, but they do impose legal consequences that operate as de facto enforcement mechanisms. The most significant is regulation 9: if the holder enters into a transaction in respect of the statutory authorisation after being given written notice of a determination to acquire, without first disclosing that fact, the resulting contract or agreement is voidable at the option of the person to whom disclosure should have been made. This is a private law remedy that allows the counterparty to rescind the transaction. It does not penalise the holder directly, but it creates a risk that the holder will lose the benefit of the contract or face damages claims. In practice, this encourages holders to disclose acquisition notices promptly, but it also creates uncertainty for any person dealing with a holder - a financier or buyer cannot be sure the authorisation is free of pending acquisition unless they conduct due diligence.

Another enforcement-adjacent provision is regulation 5(3), which allows the Minister to proceed to determine the application in the absence of further information, documents or records if the applicant fails to provide them within 28 days (or longer period allowed). This does not penalise the applicant in a punitive sense, but it may result in a determination based on incomplete evidence, likely leading to lower compensation. The applicant cannot later complain that the Minister failed to consider material that was not provided.

There are no direct penalties under these regulations for the Minister or public officials for delay or procedural error. The review and appeal processes are the only checks on the Minister’s discretion. If the Minister fails to give a notice or reasons, or acts without jurisdiction, the holder may seek review or appeal, but there is no statutory duty to act within a particular time frame other than the 21-day time limits that bind the holder.

The regulations do not refer to penalties under the Marine Parks Act 2007 for operating in a zone without authorisation or in breach of restrictions. That is a separate enforcement regime.

These regulations are made under section 21 of the Marine Parks Act 2007 and operate as subordinate legislation under that Act. The Marine Parks Act establishes the system of zones and restrictions; these regulations provide the compensation mechanism when that system affects rights under other Acts. Without these regulations, section 21 of the Act would give an entitlement to compensation but no procedural framework. The regulations fill that gap.

The statutory authorisations affected are issued under other Acts. The regulations do not list which Acts, but in South Australia the most relevant are the Fisheries Management Act 2007 (commercial fishing licences, marine aquaculture licences), the Mining Act 1971 (mining tenements), the Petroleum and Geothermal Energy Act 2000 (petroleum exploration and production licences), and potentially the Harbors and Navigation Act 1993 or the Crown Land Management Act 2009. Each of those Acts contains its own provisions about the nature of the rights granted, transferability, and duration. The compensation process under these regulations does not override those Acts; rather, it operates as an overlay that, upon acquisition, requires the minister responsible for the issuing Act to cancel the authorisation or adjust it to remove the acquired interest.

Regulation 10(2) explicitly requires a copy of the notice of acquisition to be given to the minister responsible for the Act under which the statutory authorisation was issued, and that minister must then take the necessary administrative steps. This creates a cross-departmental obligation.

The Environment, Resources and Development Court (ERD Court) is established under the Environment, Resources and Development Court Act 1993. The appeal provisions in regulation 12 incorporate section 16 of that Act (conferencing) and give the ERD Court broad powers to confirm, vary or revoke the determination, and make ancillary orders. The regulations do not contain a privative clause limiting court jurisdiction; therefore, judicial review may also be available under the Supreme Court Act 1935, though the ERD Court appeal may be the primary avenue.

The regulations do not reference the Land Acquisition Act 1969, which is the general statute for compulsory acquisition of land in South Australia. The compensation framework here is specific to statutory authorisations and does not adopt the valuation principles or procedures of the general acquisition law. This means the holder cannot rely on well-established land acquisition principles such as injurious affection or solatium. The measure of “fair market value of the affected rights” is likely to be determined by reference to the specific market for that type of authorisation, which may be thin or non-existent.

The Marine Parks (Statutory Authorisation Compensation) Regulations 2015 were made on 5 November 2015 and notified in the South Australian Government Gazette on the same day (Gazette 5.11.2015 p4859). They commenced on 5 March 2016, four months after making, as specified in regulation 2. The regulations were numbered as SA 2015 No. 227.

There are no amendments recorded in the legislative history provided. This suggests that the regulations have remained in their original form since commencement. No amending regulations have been gazetted, and no new principal regulations have replaced them. This stability may indicate that the compensation framework has not been tested heavily enough to require adjustment, or that any problems with the process have been managed through administrative practice rather than legislative change.

Given the regulations are now over seven years old, the absence of amendment may also reflect that the Marine Parks Act itself has not been substantially amended in a way that affects the compensation provisions. However, the regulations do not incorporate any objects clause or guiding principles for the Minister’s discretion, so any evolution in government practice would not be visible from the regulations alone.

Readers should check the South Australian legislation website (www.legislation.sa.gov.au) for any amending instruments that may have been made after the provided legislative history snapshot. The notes accompanying the regulations caution that the legislative history may not include all amendments.

The regulations themselves refer to no cases. They do not incorporate decisions of the Environment, Resources and Development Court or the Supreme Court as precedents. Because this is a secondary legislative instrument, there is no intrinsic case law.

It is not possible to know from the text alone whether any applications for compensation have been made, whether any internal reviews have occurred, or whether any appeals have been lodged with the Environment, Resources and Development Court. The regulations describe the appeal route, but they do not list any decisions. Public court databases may show ERD Court decisions under the Marine Parks Act that deal with compensation, but these are not disclosed in the regulations.

One potential area of dispute could be the meaning of “fair market value of the affected rights” where the statutory authorisation is not freely transferable or has no active market. For example, a commercial fishing licence may be subject to quota and transfer restrictions; a mining tenement may have speculative value based on resource estimates. Courts may need to interpret what “fair market value” means in such contexts, and whether the advisory panel’s recommendation is the starting point or merely a factor.

Another potential litigation point is the adequacy of the Minister’s reasons. Regulation 8(2)(a) requires the notice to give reasons for the determination. If the reasons are insufficient, a holder may challenge on appeal. Similarly, the internal review process under regulation 11 gives the Minister the power to affirm, vary or reverse, but does not require the Minister to refer the matter back to the advisory panel. A holder might argue that the review decision is procedurally unfair if the Minister decides without fresh input.

The transitional provisions could also generate litigation. A holder whose rights were affected years before 2016 might argue that the regulations cannot impose a 21-day time limit for review on a determination made many years later, or that the Minister’s decision to treat a pre-commencement application as if under the regulations must be exercised reasonably.

None of these points can be stated as fact from the source. They are potential avenues that an analyst would keep in mind.

One significant trap is the 28-day time limit for providing further information after a request from the Minister (regulation 5(3)). If the holder fails to respond within that period, or within a longer period that the Minister has allowed, the Minister may proceed to determine the application in the absence of that information. This can result in a compensation assessment based on incomplete evidence, likely leading to a lower payment. There is no automatic right to reopen the application if new evidence later emerges. The holder cannot rely on the advisory panel or the court to fill gaps; the burden of proof rests squarely on the applicant.

The 21-day time limit for applying for a review under regulation 11 is also short. The notice of determination under regulation 8 will typically set out the rights of review, but the holder must act quickly to gather grounds for review in writing. Missing the 21-day window may bar any further challenge, because the appeal to the court under regulation 12 is only available after a review decision. There is a limited power for the court to dispense with the appeal time limit, but no equivalent power for the Minister to extend the review time limit.

The disclosure obligation under regulation 9 is broader than it might first appear. The holder must disclose the fact of a determination to acquire “in respect of the statutory authorisation”. That includes any transaction “in respect of” the authorisation - not just a sale but also a lease, mortgage, assignment, option, or possibly a joint venture agreement. If the holder negotiates a sale of the business that includes the authorisation and fails to disclose the pending acquisition, the buyer may later avoid the contract. This creates a risk even for honest holders who may not realise the scope of the obligation. For third parties, the regulation provides no mechanism to easily discover whether a notice of acquisition has been given; the holder’s disclosure is the only safeguard.

The composition of the advisory panel is entirely at the Minister’s discretion. The panel must have three members with prescribed expertise, but the Minister appoints them, sets their terms, and can give directions on procedures. There is no requirement for the holder’s consent or even notification of the panel’s identity. If the holder disagrees with the panel’s recommendations, they cannot challenge the panel’s independence except through the general review process. The panel’s recommendations are not binding, but the Minister may adopt them without giving the holder an opportunity to respond.

The transitional provisions allow the Minister to treat a pre-commencement application as if made under the regulations, even if it does not comply with the formal requirements. However, that is a discretion, not a right. A holder who submitted an incomplete application before 2016 may be denied the benefit if the Minister decides not to apply the regulations. Also, the retrospective application means a holder who suffered loss years ago may suddenly be subject to the 21-day review clock, which may have expired before they even knew the regulations existed.

For a holder of a statutory authorisation whose rights have been or may be affected by a marine park zone or temporary restriction, the first step is to document the authorisation, its scope, and any prior valuations. When a zone or restriction is created or imposed, the holder should assess how the rights are affected - whether certain activities are no longer permitted, whether the area of operation is reduced, or whether the authorisation is effectively worthless. This assessment should be supported by evidence such as catch records, survey data, financial accounts, and expert valuations.

If the holder decides to claim compensation, an application must be prepared in accordance with regulation 5(2). This is a formal written document that must identify the zone or restriction, the statutory authorisation, a detailed explanation of how rights have been affected, the amount claimed, and supporting evidence. The holder should include all relevant documentation at the outset to avoid later requests for further information. The application must also specify an ADI account for payment and either a residential or registered address or a fax number or email for service of notices.

After the application is lodged, the holder should monitor for any request from the Minister for further information. If such a request arrives, the response must be provided within 28 days (or any longer period allowed by the Minister). It is prudent to respond as quickly as possible and to keep copies of all correspondence. If the holder anticipates difficulty in compiling the information within 28 days, they should seek an extension in writing before the deadline expires.

If the Minister issues a notice of determination under regulation 8, the holder must read it carefully. If the determination includes an intention to compulsorily acquire the authorisation or any interest, the holder must immediately note the prohibition on entering into any transaction in respect of the authorisation without first disclosing that fact. The holder should keep a written record of any disclosure made to potential counterparties. If a contract is already being negotiated, the holder must disclose the determination before finalisation.

If the holder is dissatisfied with the compensation determination, they must act within 21 days of receiving the notice. The first step is to apply to the Minister for a review under regulation 11. The application must be in writing and set out the grounds for review. The Minister may request further information, and again the holder should respond promptly. After the review decision, if still dissatisfied, the holder may appeal to the Environment, Resources and Development Court within 21 days of the review decision. The appeal must be made in the manner and form determined by the court, setting out the grounds. The holder should consider engaging legal representation familiar with the ERD Court.