Proclamation - Boags Marine Park

The central concept is a “Commonwealth reserve” under the EPBC Act. The proclamation derives its legal force from subsection 344(1) of that Act, which empowers the Governor‑General to declare an area of Commonwealth land or waters to be a reserve. The reserve here consists of waters, seabed, and the seabed to 100 metres depth. The boundary is defined by five coordinate points forming a rectangle: from 40°08′30″S, 144°49′30″E east to 145°09′00″E, then south to 40°19′00″S, then west back to 144°49′30″E, then north to the starting point. All coordinates are on the GDA94 datum, which is the standard Australian datum. The area lies in Bass Strait, which is Commonwealth waters outside state coastal waters. The reserve includes “the seabed to a depth of 100 metres”, meaning the seabed itself and the overlying water column down to that depth are part of the reserve; the seabed below 100 metres is not covered. That depth limit is unusual and may create a two‑tier regime: activities affecting the seabed below 100 metres might not require approval under the reserve provisions, though they may still be regulated under other parts of the EPBC Act. The IUCN category assigned - “managed resource protected area” - is a classification that permits human use as long as it is sustainable and consistent with biodiversity conservation. The category is defined by the International Union for Conservation of Nature, and the Australian government has adopted it for its marine parks. Category VI reserves typically allow commercial fishing, recreational fishing, tourism, and some resource extraction, but with constraints such as zoning or permit conditions. The proclamation does not itself create zones; it only assigns the broad category. A management plan under section 370 of the EPBC Act could later impose stricter rules. Another key concept is the “National Representative System of Marine Protected Areas”, which is a policy framework rather than a legislative requirement. The proclamation states that the reserve contributes to that system, but the system itself has no statutory force. The amendment history shows that the reserve was originally called “Boags Commonwealth Marine Reserve” and was renamed in 2017 to remove “Commonwealth” from the name. That change is purely cosmetic but may affect legal references in older permits or contracts. The compilation notes indicate no substantive changes to boundaries, category, or depth limits.

The proclamation directly affects any person or entity that conducts activities within the declared area. That includes commercial fishers operating in Bass Strait, particularly those targeting species found within the 400‑square‑kilometre rectangle. Recreational fishers, charter boat operators, and divers are also affected if they enter the reserve. Shipping and vessel transit are affected indirectly: normal passage through the area is generally not restricted, but anchoring, discharge, or seabed‑disturbing activities may require approvals. The oil and gas industry is affected because the area may overlay potential petroleum exploration or production zones. Bass Strait is a significant hydrocarbon basin, and the reserve covers a portion of it. Any seismic survey, drilling, or pipeline installation that touches the seabed or water column within the reserve would need assessment under the EPBC Act and a permit if the activity is inconsistent with the reserve’s IUCN category. Submarine cable operators laying telecommunications or power cables across the seabed may also be affected, as they would need to avoid or obtain approval for disturbance within the 100‑metre seabed depth limit. State and territory governments are affected because the reserve lies in Commonwealth waters, but adjacent state waters may have interactive management arrangements under the Offshore Constitutional Settlement. The Australian government, through Parks Australia and the Department of the Environment, is the administering authority. The proclamation also affects companies and individuals who had existing permits or licences under other laws that may now conflict with the reserve’s creation. For example, a fishing concession granted by the Australian Fisheries Management Authority that overlaps the reserve may become subject to additional conditions or may be incompatible with future management plans. Indigenous groups with native title or traditional use rights in the area may also be affected, though no such rights are mentioned in the proclamation. The compliance burden falls on users who must now check whether their activities require approval they did not previously need. The economic cost includes potential loss of fishing grounds, increased transaction costs for permits, and uncertainty over future management changes.

The proclamation itself imposes no duties or rights beyond establishing the reserve’s existence and legal status. However, by creating a Commonwealth reserve, it triggers the duties and rights set out in the EPBC Act. The key duty is the prohibition on carrying out an activity in a Commonwealth reserve that is likely to have a significant impact on the environment unless the activity is covered by a permit or approved management plan. Section 347 of the EPBC Act makes it an offence to engage in activities that cause damage to a reserve without approval. The precise scope of prohibited activities depends on the reserve’s IUCN category and any management plan in force. Under Part 15 of the EPBC Act, the Minister may prepare a management plan for the reserve, which can specify permitted activities, conditions, and zones. Until such a plan is made, the default rules apply: the IUCN category VI designation suggests that sustainable use is allowed, but the Act still requires that activities not be inconsistent with the reserve’s purposes. Rights of users include the right to apply for a permit to conduct an activity in the reserve (section 357D). The Minister may grant a permit subject to conditions, including bonds, reporting, or mitigation measures. There is also a right of public comment on certain permit applications if they involve a significant impact. Rights of access for recreational activities, fishing, and transit are likely preserved under the default category, but that is not a statutory right; it can be altered by a future management plan. Any person whose existing lawful use is adversely affected by the reserve may have a right to seek compensation under the EPBC Act, but that is limited to circumstances where the Act itself provides for acquisition of property on just terms (section 504). The proclamation does not mention compensation, and the general law on extinguishment of statutory licences suggests little or no compensation is payable. The duty to comply with the reserve’s prohibitions is enforceable by the Minister, the Director of National Parks, and authorised officers. There is also a duty on the administering authority to manage the reserve in accordance with its IUCN category and the objects of the EPBC Act. The proclamation does not define “managed resource protected area”, leaving interpretation to the common understanding of IUCN guidelines.

The proclamation does not set out penalties. Penalties for non‑compliance arise from the EPBC Act. Under section 347, a person who engages in an activity in a Commonwealth reserve that damages or is likely to damage the environment, or who fails to comply with a condition of a permit, commits an offence punishable by imprisonment for up to seven years (for an individual) or a fine of up to 420 penalty units (currently about $93,000) per day, or both. Corporations face fines up to 2,100 penalty units per day. There are also civil penalty provisions under Part 17 of the EPBC Act, which can result in court‑ordered penalties of up to $1.1 million for individuals and $5.5 million for bodies corporate for serious breaches. In addition, the court may order remediation, forfeiture of property, or injunctions. Enforcement is carried out by the Department of the Environment and Parks Australia, and by the Australian Federal Police and other authorised officers. They have powers to board vessels, inspect documents, and seize evidence. The EPBC Act also provides for infringement notices for less serious breaches, allowing fines of up to 12 penalty units. A key enforcement issue is the practical difficulty of monitoring a remote marine area. Bass Strait is large, and the reserve is relatively small, but detection of illegal fishing or seabed disturbance may be rare. The cost of surveillance by aircraft or vessels falls on taxpayers, and the expected enforcement yield must be weighed against the compliance burden imposed on legitimate users. The proclamation’s amendment history does not reflect any adjustments to enforcement powers.

The proclamation is made under the Commonwealth EPBC Act and therefore has primacy over inconsistent state laws within the area by operation of section 109 of the Constitution, to the extent the reserve is in Commonwealth waters. State laws regulating fisheries, ports, or marine pollution may continue to apply if they are not directly inconsistent, but the EPBC Act’s requirements overlay them. For example, a state fishing licence authorising a person to fish in Bass Strait does not exempt that person from needing approval under the EPBC Act if the fishing occurs in the reserve. The interaction with the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) is particularly important. Oil and gas titles granted before the reserve’s creation may be affected; the EPBC Act allows the Minister to impose conditions or prohibit activities that would harm a reserve. The Fisheries Management Act 1991 (Cth) gives AFMA the power to grant fishing concessions, but those are subject to the reserve’s requirements. The Navigation Act 2012 (Cth) and the Marine Pollution Act 1999 (Cth) also regulate shipping and discharges; those laws are not directly overridden, but a discharge that is otherwise lawful under those acts may still violate the EPBC Act if it damages the reserve. The proclamation does not mention the Seas and Submerged Lands Act 1973 (Cth), which vests sovereignty in the Commonwealth over the territorial sea and continental shelf. That Act underpins the Commonwealth’s power to made the proclamation. The Environment Protection and Biodiversity Conservation Regulations 2000 may contain specific provisions about Commonwealth reserves, including reporting, access, and fees. The proclamation itself does not specify whether a management plan exists. If one does, it will be a legislative instrument that can impose additional controls. The interaction with native title is governed by the Native Title Act 1993 (Cth). The proclamation does not affect native title rights, but any extinguishment or impairment would need to comply with that Act. No such issues are disclosed in the source.

The compilation provides a full amendment history. The original instrument was the “Proclamation - Boags Commonwealth Marine Reserve”, registered on 2 July 2007 and commencing on 31 August 2007. That proclamation created the reserve with the same boundaries, depth limit, and IUCN category, but under the name “Boags Commonwealth Marine Reserve”. The only amendment was made by the Environment Protection and Biodiversity Conservation Amendment (Commonwealth Marine Reserves Renaming) Proclamation 2017, registered on 10 October 2017 and commencing on 11 October 2017. That amending proclamation did two things: it amended paragraph (c) of the original proclamation (which names the reserve) to delete “Boags Commonwealth Marine Reserve” and substitute “Boags Marine Park”, and it substituted the Schedule heading (presumably from “Boags Commonwealth Marine Reserve” to “Boags Marine Park”). No other provisions were amended. The amendment did not alter the boundaries, depth limit, IUCN category, or any other substantive element. The endnotes also note that a commencement paragraph was repealed by section 48D of the Legislation Act 2003 (probably as an editorial change). The amendment history is thus minimal: one administrative renaming. The original compilation date is 11 October 2017, and no further changes are recorded. The renaming appears to have been part of a broader program to standardise marine reserve names across the Australian network, removing the word “Commonwealth” from reserve names. Practitioners should be aware that any documents, contracts, or permits that reference the old name may still be valid but could create confusion. For example, a permit issued before 11 October 2017 that refers to “Boags Commonwealth Marine Reserve” would still legally apply to the same area. The compilation endnotes confirm that the text shown is the law as amended and in force on that date.

The source does not mention any litigation relating to the proclamation or the Boags Marine Park. The endnotes list only amendment history and no references to court cases. It is possible that no proceedings have been commenced challenging the validity of the proclamation or its application. However, the absence of recorded litigation does not mean none exists; the compilation endnotes are not a litigation database. There is no reason to infer any particular legal challenge from the source provided. The proclamation is a straightforward executive instrument made under a well‑established head of power, and its terms are precise and unambiguous. Challenges to marine park proclamations under the EPBC Act have occurred elsewhere, often focusing on the adequacy of consultation or the breadth of the power, but none are referenced here. The interaction with fishing and petroleum interests could theoretically lead to legal action, such as a claim for compensation for acquisition of property or a dispute over the interpretation of the depth limit. Without any case name or judgment noted in the source, no litigation history can be recounted.

Several features of the proclamation could trap the unwary. First, the depth limit - “the seabed to a depth of 100 metres” - is ambiguous. It could mean the seabed itself down to a depth of 100 metres below the sea surface, or it could mean the seabed column extending 100 metres vertically from the top of the seabed. The more natural reading is the former: the reserve includes the seabed and the overlying water up to a depth of 100 metres below the surface. That would mean the water column from the surface to 100 metres is included, but the seabed deeper than 100 metres is excluded. However, if the seabed itself is at a shallower depth (e.g. 80 metres), the entire seabed is included down to 100 metres, which effectively includes the seabed and sub‑seabed down to 100 metres below the surface. The wording is unclear and could lead to disputes about whether activities that affect only the deeper seabed (e.g. sub‑sea mining below 100 metres) require permits. Second, the coordinates use GDA94. Any user relying on older WGS84 or AGD66 coordinates could be several metres off, potentially missing the boundary. Third, the IUCN category “managed resource protected area” is often misunderstood as allowing all economic activities. In practice, it allows sustainable use, but the meaning of “sustainable” is left to the administering authority, which can impose strict conditions or deny permits. There is no guarantee that existing commercial activities will be allowed to continue unchanged. Fourth, the proclamation does not contain a sunset or review date. The reserve exists indefinitely unless revoked by a later proclamation. Fifth, the renaming in 2017 means that older secondary materials, such as charts, management plans, or regulatory guidance, may still use the old name, leading to confusion. Sixth, the area is relatively small but may be a critical fishing ground or a corridor for marine species. A small boundary shift unnoticed by a user could result in an inadvertent violation. Seventh, the proclamation does not reference any management plan. If no plan exists, the default restrictions apply, which may be more lenient than a plan would be, but also less certain. Users relying on the absence of a plan may find their activities suddenly restricted if a plan is later introduced. Finally, the proclamation is made under subsection 344(1) of the EPBC Act, but that subsection is not reprinted in the compilation. Practitioners need to read the parent Act to understand the full legal framework, including provisions on permits, management plans, and public consultation.

Compliance begins with determining whether your proposed activity falls within the reserve boundaries as defined in the Schedule. That requires accurate coordinate conversion to a usable chart or GPS unit using GDA94. A party conducting any activity in the area - fishing, research, tourism, shipping, exploration, construction - should first check the EPBC Act restrictions. There is no exemption for small‑scale or recreational activities unless a management plan provides one. The default rule is that any activity likely to have a significant impact on the environment is prohibited without a permit. For low‑impact activities, such as routine vessel passage, no permit is needed. But anchoring, fishing, diving, or any bottom‑contact activity may need assessment. The first step is to contact the Department of Climate Change, Energy, the Environment and Water (formerly the Department of the Environment) or Parks Australia to confirm whether a management plan applies. If a plan exists, follow its zoning and conditions. If not, apply the IUCN category VI guidance: you must ensure your activity is consistent with sustainable use and does not damage biodiversity. In practice, this often requires a permit application under section 357D of the EPBC Act, which will be assessed by the Minister. The application must include a description of the activity, its likely impacts, and proposed mitigation measures. The Minister may impose conditions, require a bond, or refuse the permit. If the activity is commercial, such as fishing or petroleum operations, it is advisable to obtain legal advice on whether existing licences or leases are valid and whether they require amendment. For ongoing activities, regular reporting and monitoring may be required. Keep records of all communications with the administering authority, and document your compliance with any conditions. If the activity is already underway and the reserve was created after your authorisation, you should check whether the EPBC Act provides a transitional period or whether you need to apply for a permit immediately. The proclamation itself provides no transitional provisions, so the obligation likely began on the commencement date (31 August 2007 for the original, or 11 October 2017 for the rename). Penalties for non‑compliance are severe, so err on the side of caution. Consider engaging a consultant with experience in EPBC Act approvals. Finally, monitor the Federal Register of Legislation for any amendment to the proclamation or the creation of a management plan that could alter the compliance obligations.