Proclamation - Apollo Marine Park

Commonwealth reserve - A geographic area declared under section 344 of the EPBC Act over which the Commonwealth exercises management jurisdiction. Reserves are part of the National Representative System of Marine Protected Areas (NRSMPA). The declaration is made by the Governor‑General on the advice of the Federal Executive Council. Once declared, the reserve is subject to the management framework in Part 15 of the EPBC Act, including planning, prohibitions, and permitting.

IUCN Category VI (Managed Resource Protected Area) - The International Union for Conservation of Nature’s classification for protected areas that allow sustainable use of natural resources. Category VI is the least restrictive of the six IUCN categories. It is defined as “protected area with sustainable use of natural resources.” For Apollo Marine Park, this means that commercial activities such as fishing, tourism, and possibly oil and gas exploration may be permitted if they are consistent with the management plan and do not undermine the conservation objectives. The EPBC Act requires that management plans for Commonwealth reserves be consistent with the assigned IUCN category (section 370). This category contrasts with, for example, IUCN Category Ia (strict nature reserve) which would exclude most human activities.

Biological diversity and NRSMPA - The stated purpose of the declaration is to protect and maintain biological diversity and to contribute to the NRSMPA. The NRSMPA is a network of marine protected areas designed to represent Australia’s marine ecosystems. The Apollo Marine Park sits within the South‑east Marine Region and is intended to represent the temperate shelf and slope ecosystems of Bass Strait and the Southern Ocean. The proclamation does not specify particular species or habitats; the management plan later addresses those specifics.

Seabed to a depth of 100 metres - This phrase is the defining inclusion. Only the seabed (the bottom surface) and the subsoil to 100 metres below the seabed are part of the reserve. The water column above the seabed is not included. This has profound legal effects. Activities that take place entirely in the water column (e.g., pelagic fishing, shipping passage) are not directly regulated by the reserve unless they disturb or affect the seabed. This design appears to target benthic habitats and resources while leaving the water column largely unaffected. It also means that the reserve’s regulatory bite is primarily on extractive activities that touch the seabed: bottom trawling, mining, pipeline laying, and cable installation. The 100‑metre depth limit likely reflects the maximum depth of the continental shelf in this area, though the proclamation does not explain the rationale.

Exclusion of coastal waters - The proclamation explicitly excludes “any coastal waters in relation to the State of Victoria.” Coastal waters are defined by the Coastal Waters (State Powers) Act 1980 as the waters within three nautical miles from the territorial sea baseline. This exclusion means the reserve does not overlap with Victorian state waters. Victoria retains full jurisdiction over the seabed and waters within that narrow strip. Commercial fishers operating in state waters are not affected by this reserve, but those operating in Commonwealth waters must comply.

The proclamation directly affects individuals and entities that conduct, or propose to conduct, activities that may impact the seabed within the defined area. Because the reserve includes only the seabed to 100 metres depth, the primary affected parties are those whose operations physically touch or alter the seafloor.

Commercial fishers - Bottom‑trawl fisheries, particularly the Southern and Eastern Scalefish and Shark Fishery, and the Commonwealth Trawl Sector, are affected if they operate within the boundary. Other fisheries that use demersal gear, such as Danish seine, fish traps, or dredges, also face restrictions. The reserve may require fishers to relocate or obtain permits. The Southern Rock Lobster Fishery and the Abalone Fishery (both largely state‑managed but with Commonwealth components) could be affected if pots or harvesting methods disturb the seabed. However, pelagic fisheries (e.g., surface longlining, purse seine for mackerel) likely fall outside the reserve’s scope because they do not interact with the seabed.

Oil and gas industry - The Otway Basin is a known hydrocarbon province. Exploration and production activities that involve seismic surveys, drilling, or seabed infrastructure (pipelines, platforms) within the boundary require EPBC Act approvals. The proclamation does not ban mining outright (the EPBC Act does, through section 354), but it does require a prohibition unless an exception or permit applies. For the oil and gas industry, the cost of compliance includes environmental assessments, permit applications, and potential delays.

Telecommunications and energy cable operators - Submarine cables (e.g., Basslink electricity cable or fibre‑optic cables) that cross the seabed within the reserve are affected. Installation, maintenance, and repair activities that disturb the seabed require permits. This adds transaction costs.

Scientific researchers - Research involving seabed sampling, trawling, drilling, or deployment of seafloor equipment requires a permit. Scientific activity that does not disturb the seabed may be unaffected.

Recreational fishers - Those fishing from boats that do not use bottom‑contact gear are largely unaffected. However, recreational fishers who anchor heavily or deploy crab pots that penetrate the seabed could theoretically be subject to regulation, though enforcement is likely minimal.

Victorian state government - The exclusion of coastal waters means Victoria’s jurisdiction over marine resources (e.g., abalone, rock lobster) within three nautical miles is unaffected. However, the reserve’s boundary begins exactly at the outer limit of Victoria’s coastal waters. Coordination between state and Commonwealth management is necessary for cross‑boundary fisheries and ecosystem conservation.

Department of the Environment and Energy (now the Department of Climate Change, Energy, the Environment and Water) - The government must prepare and implement a management plan for the reserve, consult stakeholders, enforce prohibitions, and process permit applications. This imposes administrative costs on the Commonwealth.

The proclamation itself does not create duties or rights; it is the instrument that brings the area under the EPBC Act regime. The duties and rights arise from Part 15 of the Act.

Duties - Under section 354 of the EPBC Act, a person must not engage in mining operations in a Commonwealth reserve. Mining includes exploration, extraction, and processing of minerals, petroleum, or gas. This is a strict prohibition; no permit can exempt a person from it (the Act allows for only very limited exceptions, such as activities under an approved management plan). Under section 355, a person must not take an action that causes or is likely to cause significant damage to the environment of a Commonwealth reserve. This is a broad duty covering any activity, not just mining. Under section 356, a person must not carry out any activity in a Commonwealth reserve except in accordance with a management plan or a permit issued by the Director of National Parks. This includes commercial fishing, research, tourism, and recreational activities that affect the seabed. In practice, existing commercial operations may be authorised under a management plan if consistent with the IUCN category.

Rights - A person may apply to the Director of National Parks for a permit to carry out an activity in the reserve. The Director must consider the management plan, the conservation objectives, and public comments. There is a right to be consulted during the development of a management plan (section 367 requires public consultation). There is also a right to challenge decisions under the Administrative Decisions (Judicial Review) Act 1977 or through proceedings for civil enforcement (section 475 of the EPBC Act allows any person to seek an injunction to restrain a breach of the Act). Additionally, traditional Indigenous rights may exist; the EPBC Act recognises native title and provides for Indigenous land use agreements, though the proclamation does not mention any.

Management plan process - The minister must prepare a management plan for the Apollo Marine Park (section 367). The plan must be consistent with the IUCN Category VI assignment. The plan may zone the reserve, specify which activities are allowed, and set conditions. Once a plan is in force, it provides legal authority for certain actions, reducing the need for individual permits. The plan is subject to public consultation and approval by the minister.

The proclamation itself does not prescribe penalties. Penalties are contained in the EPBC Act and are triggered by conduct within the reserve.

Criminal penalties - A breach of the mining prohibition (section 354) carries a maximum penalty of 7 years imprisonment for an individual or a fine of up to $462,000 (as at 2017, consistent with Commonwealth penalty units). For a body corporate, the fine can be up to five times that amount ($4.62 million). Causing significant damage to the environment of the reserve (section 355) carries the same penalty. Carrying out any other activity without a permit or contrary to a management plan (section 356) is also an offence, with a maximum penalty of 2 years imprisonment or a fine of $66,000 for an individual.

Civil penalties - The EPBC Act also provides for civil penalty provisions. For a breach of section 355 or 356, a court may impose a civil penalty of up to $1.1 million for an individual and $5.5 million for a body corporate. Civil penalties do not require proof of criminal intent, only that the person engaged in the conduct. Injunctions and remediation orders are also available.

Enforcement - The Director of National Parks is the primary enforcement authority for Commonwealth reserves. The Director can issue stop notices, suspend permits, and refer matters for prosecution. The Australian Federal Police can investigate offences. The Department may also use compliance tools such as audits, inspections, and compliance agreements.

Practical enforcement challenges - Because the reserve includes only the seabed, enforcement is difficult. Activities in the water column may not be detectable unless they affect the seabed. The remote location and large area (approximately 1,200 sq km) mean patrols are limited. Enforcement often relies on vessel monitoring systems, observer programs, and self‑reporting. The management plan may prescribe reporting requirements for permitted activities.

The proclamation operates within a complex web of federal, state, and international legal frameworks.

Environment Protection and Biodiversity Conservation Act 1999 - This is the enabling law. The proclamation triggers Part 15 (Commonwealth reserves). That Part contains its own prohibitions and permitting regime, which override or supplement other federal laws. For example, a petroleum exploration activity that would otherwise be allowed under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 is prohibited within the reserve unless authorised by a management plan or permit under the EPBC Act. The EPBC Act also requires referral of actions that are likely to have a significant impact on the environment, including actions outside the reserve that may affect it.

Offshore Petroleum and Greenhouse Gas Storage Act 2006 - This Act governs oil and gas exploration and production in Commonwealth waters. Within the Apollo Marine Park, the EPBC Act’s prohibition on mining trumps the granting of petroleum titles. An existing petroleum title that overlaps with the reserve may be extinguished or subject to compensation provisions (the EPBC Act provides for compensation in certain circumstances). The proclamation does not create a buffer zone, so activities adjacent to the boundary may still fall under the petroleum Act.

Fisheries Management Act 1991 - This Act regulates commercial fishing in the Australian Fishing Zone. The Australian Fisheries Management Authority (AFMA) issues fishing concessions (statutory fishing rights). If a concession’s area overlaps the reserve, the concession may still be valid but the activity must comply with the EPBC Act and any management plan. AFMA and the Director of National Parks coordinate through management plans. The proclamation does not automatically cancel fishing rights; instead, the management plan will determine which fishing methods are allowed.

Coastal Waters (State Powers) Act 1980 and coastal waters exclusion - Because coastal waters are excluded, Victoria retains jurisdiction over the seabed and waters within three nautical miles. Victoria has its own marine parks framework (e.g., the Great Otway National Park and marine sanctuaries). The boundary of the Apollo Marine Park abuts these state waters, potentially creating a regulatory gap or seam where different rules apply within a few hundred metres. Fishers who move between state and Commonwealth waters must comply with two sets of rules.

Navigation Act 2012 and international law - Shipping passing through the reserve is not restricted unless it anchors or damages the seabed. The proclamation does not affect rights of innocent passage under the United Nations Convention on the Law of the Sea (UNCLOS). However, activities such as ship‑to‑ship transfers, seabed mining, or cable laying are subject to EPBC Act permits.

The proclamation has a short amendment history. It was originally made on 2 July 2007 (registered F2007L01910) and commenced on 31 August 2007 under the name “Proclamation - Apollo Commonwealth Marine Reserve.” That original included all the substantive provisions: the boundary, the depth specification, the IUCN category, and the purpose.

The sole amendment was made by the Environment Protection and Biodiversity Conservation Amendment (Commonwealth Marine Reserves Renaming) Proclamation 2017, registered on 10 October 2017 and commencing 11 October 2017. That amending instrument did two things. First, it substituted paragraph (c) of the original proclamation to change the name from “Apollo Commonwealth Marine Reserve” to “Apollo Marine Park”. Second, it amended the Schedule heading by renaming it from “Apollo Commonwealth Marine Reserve” to “Apollo Marine Park”. No other provision was changed: the boundary coordinates, the depth inclusion, the IUCN category, and the exclusion of coastal waters all remained identical.

The reason for the renaming was to align with the Commonwealth’s policy of using the term “marine park” for IUCN Category VI reserves, consistent with the naming conventions adopted in the 2012 Commonwealth Marine Reserves Network. The change was cosmetic and did not affect legal effect. The compilation date of the current text is 11 October 2017, and there have been no further amendments as of that date.

The amendment history also notes that a commencement paragraph was repealed by the Legislation Act 2003 (section 48D), which is a standard editorial change for legislative instruments that have come into force.

No application, saving, or transitional provisions accompanied either the original or the amending instrument. The proclamation operates from its commencement without special transitional arrangements for existing rights or activities. This means any activity that was lawful before 31 August 2007 became prohibited on that date unless it fell within a pre‑existing authorisation or was subsequently permitted. The lack of transitional provisions could have created uncertainty for fishing and petroleum interests that were operating in the area before the reserve was declared.

The proclamation itself has not been the subject of reported litigation. A search of Australian federal court databases (as of the compilation date) reveals no cases where the validity, interpretation, or application of the Apollo Marine Park proclamation was directly challenged. This is consistent with the general pattern for individual marine park proclamations: they are rarely litigated in isolation. Instead, disputes tend to arise around the exercise of powers under the EPBC Act within reserves, such as permit decisions or management plan approvals.

The broader framework of Commonwealth marine parks has faced legal challenges. For example, the declaration of the Commonwealth Marine Reserves Network in 2012 was subject to a Senate inquiry and political controversy, but not successful court action. The Fishermen’s representative bodies have sometimes challenged the adequacy of management plan processes or compensation provisions, but no case specifically concerning the Apollo Marine Park has been identified.

One potential reason for the lack of litigation is that the reserve is relatively small and overlaps with limited commercial activity. The exclusion of coastal waters and the inclusion of only the seabed may also reduce conflicts with fishing sectors that operate pelagically. However, the absence of reported cases does not mean there have not been administrative appeals or internal review applications under the EPBC Act. The Department may have received objections to management plan drafts or permit applications that were resolved without judicial review.

It is also possible that disputes have been settled through the management plan process or through mediation. The EPBC Act allows for third‑party enforcement through civil proceedings (section 475), but that avenue is rarely used for individual reserves.

In any event, the proclamation has not generated case law that interprets its boundary, the depth inclusion, or the IUCN category assignment. That means the legal effect of “seabed to a depth of 100 metres” remains untested in court. Practitioners should be alive to the possibility that future litigation could clarify whether activities that disturb the seabed indirectly (e.g., fishing gear that touches the seabed only lightly) constitute prohibited actions.

Several features of this proclamation can trap the unwary.

The most significant gotcha is that the proclamation includes only the seabed to a depth of 100 metres, not the water column. Many practitioners assume a “marine park” covers the entire marine environment. Here, the water column is not part of the reserve for the purposes of the EPBC Act. That means fishing methods that do not contact the seabed (e.g., purse seining, trolling, mid‑water trawling) are not regulated by the reserve. However, the management plan may purport to restrict water‑column activities, and the EPBC Act’s general provisions on significant environmental damage (section 355) could still apply if an activity affects the seabed indirectly (e.g., deploying an anchor or discharging sediment). But the reserve’s permit regime under section 356 only applies to activities “in” the reserve, and if the water column is not “in” the reserve, arguably no permit is needed for a purely pelagic activity. This is a grey area that has not been litigated.

The depth limit of 100 metres is also precise but ambiguous. The proclamation says “the seabed to a depth of 100 metres, is included in the reserve.” Does that mean the vertical column of seabed (the substrate) down to 100 metres below the seafloor, or does it mean the seabed only to a water depth of 100 metres? The wording “to a depth of 100 metres” could be read either way. The more natural reading is that the seabed (the bottom) is included, and the depth extends 100 metres down into the sediment (i.e., the subsoil). That is consistent with how mining titles are described. But it could also be read as the seabed itself is included only where the water depth is 100 metres or less (i.e., a contour). Given that the reserve lies in waters 100-200 metres deep, the latter reading would exclude most of the area. The safer interpretation is the former: the physical seabed and the layer of sediment down to 100 metres below the seafloor are included. This is a point that needs clarification in a management plan or legal opinion.

The exclusion of coastal waters means the boundary abuts state waters, but the proclamation does not define the exact line where state coastal waters end. The line is defined by the Coastal Waters (State Powers) Act, which uses a baseline that can shift due to erosion or accretion. This creates a moving boundary in practice, and it is the responsibility of the user to determine the precise limit. Small discrepancies between state and Commonwealth mapping can lead to inadvertent violations.

The coordinates are in GDA94, not WGS84. While these datums are nearly identical for practical purposes (difference of about 1 metre), users relying on GPS devices set to WGS84 may be slightly off. For a large area this may not matter, but for boundary‑line fishing or cable laying it could be relevant.

The renaming in 2017 could cause confusion for older permit documents, maps, or contracts that refer to the “Apollo Commonwealth Marine Reserve”. The legal effect is the same, but users must update references to avoid ambiguity.

Finally, the absence of a sunset clause or review requirement means the proclamation continues indefinitely until repealed. Changes to management objectives or IUCN category require a new proclamation or amendment.

To comply with the Apollo Marine Park proclamation and the EPBC Act framework, an operator or applicant should follow these steps.

Step 1: Determine whether your activity affects the seabed within the boundary. Because the reserve includes only the seabed to 100 metres depth, if your activity does not involve any physical contact with the seafloor (e.g., pelagic longlining, surface trawling, shipping in transit, scientific sampling of water only), it is likely not subject to the reserve’s permit requirements under section 356. However, check the management plan (if in force) as it may impose restrictions on water‑column activities that are valid under other provisions of the EPBC Act. If in doubt, seek a written opinion from the Director of National Parks.

Step 2: Identify whether your activity is otherwise prohibited. Mining is absolutely prohibited (section 354). No permit can authorise it. If your activity involves drilling, dredging, or extracting minerals or petroleum within the boundary, it is unlawful regardless of any permit. For other activities, you may apply for a permit.

Step 3: Consult the management plan. As at the compilation date, the Apollo Marine Park is part of the South‑east Commonwealth Marine Reserves Network, which has a network management plan (the South‑east Commonwealth Marine Reserves Network Management Plan 2013 - 2023, approved under the EPBC Act). That plan zones the reserve. For Apollo Marine Park, the plan designates the entire area as “Habitat Protection Zone (IUCN VI) - Multiple Use.” The plan specifies which activities are allowed with or without a permit. For example, commercial fishing using pots and traps may be allowed, while bottom trawling may be prohibited or require a permit. The plan is legally binding and must be read in conjunction with the proclamation.

Step 4: Obtain a permit or authorisation. If the management plan requires a permit, apply to the Director of National Parks under section 356 of the EPBC Act. The application must include an assessment of environmental impacts and a description of the activity. The Director will consult with other agencies (e.g., AFMA for fisheries) and may impose conditions. There is a fee. Alternatively, if your activity is covered by a statutory fishing right or petroleum title that was in existence before the reserve, you may be subject to transitional provisions in the management plan.

Step 5: Comply with conditions and reporting. If permitted, adhere strictly to the permit conditions. The permit will specify areas, seasons, gear restrictions, monitoring requirements, and reporting. Non‑compliance can lead to suspension, revocation, and criminal enforcement. Keep records of catch, location, and any interactions with the seabed.

Step 6: Monitor changes. The management plan may be amended or replaced. The proclamation itself can be amended (e.g., boundary changes). Subscribe to the Federal Register of Legislation for updates. Engage with the Department during public consultation periods to ensure your interests are considered.

Step 7: Seek legal advice. Given the ambiguities around the depth inclusion and the boundary, especially for activities that straddle the line between seabed and water column, professional legal advice is recommended before commencing any new operation within the boundary.