Proclamation - East Gippsland Marine Park

Commonwealth reserve. Under the EPBC Act, a Commonwealth reserve is an area of land or sea owned or controlled by the Commonwealth or an external Territory, or an area in Commonwealth waters, that is declared by proclamation under section 344. The declaration brings the area under the regulatory framework of Part 15 of the Act, which prohibits a range of activities unless authorised. The reserve in this case is in the Tasman Sea, entirely within Commonwealth waters beyond the three nautical mile coastal zone (the boundary roughly follows the 200-metre depth contour). The proclamation includes only the seabed to a depth of 100 metres, which is the subsoil beneath the seabed surface down to that depth. It does not include the water column above the seabed. This is a distinctive feature: many marine parks include the water column, but this one includes only the seabed. The practical effect is that fishing in the water column is not directly regulated by the reserve declaration, but activities that affect the seabed (such as bottom trawling, seabed mining, or cable laying) are subject to the reserve regime.

National Representative System of Marine Protected Areas (NRSMPA). The proclamation states the reserve is declared for the purpose of contributing to the NRSMPA. This is a policy framework, not a statutory definition, aiming to establish a comprehensive, adequate and representative network of marine protected areas across Australia’s marine bioregions. The East Gippsland Marine Park lies within the Bass Strait Shelf Transition and Southeast Shelf Transition bioregions. The NRSMPA is not itself legally binding, but the proclamation invokes it as the purpose for establishment, which may influence future management priorities.

IUCN Category VI - Managed Resource Protected Area. The International Union for Conservation of Nature’s protected area categories are used by the Commonwealth to assign management objectives. Category VI is defined as “protected area with sustainable use of natural resources”. The primary objective is to protect and maintain biological diversity while allowing sustainable use of natural resources. This is the least restrictive IUCN category for a marine park. It means the reserve is not a no-take sanctuary zone. Extractive activities such as commercial fishing, recreational fishing, and potentially petroleum exploration (if consistent with the management plan) can continue. The specific management zoning (e.g., sanctuary zones, habitat protection zones, general use zones) is not set by the proclamation itself; it must be provided by a management plan prepared under the EPBC Act or by regulations made under the Act.

Geocentric Datum of Australia 1994 (GDA94). All coordinates in the schedule are expressed in GDA94, which is the standard geodetic datum for Australia. The proclamation explicitly references the Commonwealth Gazette GN35 of 6 September 1995 for the description of GDA94. This matters for precise boundary determination because coordinates using older datums (e.g., AGD66) would place the boundary slightly differently. Any legal challenge to the boundary would need to verify that coordinates were correctly converted to GDA94.

Geodesic line. The western boundary is defined as “north-easterly along the geodesic to the point of commencement”. A geodesic is the shortest line between two points on the surface of an ellipsoid (the Earth). On a map projection, this will appear as a curved line, not a straight rhumb line of constant bearing. The geodesic runs from 38°30' south 149°51' east to 37°38' south 150°22' east. This diagonal boundary is unusual compared to the other boundaries, which follow parallels and meridians. The practical effect is that the western side of the reserve is a sloping edge, not a straight north-south or east-west line.

Seabed to 100 metres. The proclamation specifies that the seabed to a depth of 100 metres is included in the reserve. This means the reserve comprises the seabed surface and the subsoil down to 100 metres below the seabed surface. It does not include the water column. This is a critical limitation for activities: a fishing vessel trolling for tuna in the water column above the reserve is not within the reserve, but a bottom trawler that drags a net across the seabed would be conducting an activity on the reserve. Similarly, a pipeline buried in the subsoil would be within the reserve.

The proclamation directly affects any person or entity conducting activities on or affecting the seabed within the defined area. This includes commercial fishers who use bottom-contact gear such as trawl nets, dredges, or longlines with weights that touch the seabed. Recreational fishers who anchor and fish near the seabed may also be affected, although line fishing from the surface is not necessarily an activity on the seabed; however, if an anchor damages seabed habitat, the activity could be caught. The petroleum and mineral exploration industry is directly affected: any exploration for oil, gas, or minerals that involves drilling or seabed disturbance within the reserve would require authorisation under the EPBC Act. Offshore renewable energy developers (e.g., wind farms) that need to fix foundations into the seabed would also be affected. Telecommunications and power cable operators who lay or maintain submarine cables on the seabed within the reserve would need to comply. The Australian Fisheries Management Authority (AFMA) and state fishing agencies will need to adjust their management arrangements to ensure consistency with the reserve’s management plan. Commonwealth agencies, particularly the Director of National Parks (Parks Australia), gain new management responsibilities over the area. The Department of Climate Change, Energy, the Environment and Water (or its successor) is responsible for issuing permits and preparing a management plan. The proclaimed area is within the offshore area adjacent to Victoria, but because it lies beyond the coastal waters, the Commonwealth has exclusive jurisdiction, so the Victorian government is not directly in charge of the seabed within the reserve. However, the proclamation may affect state-licenced fishers who hold Commonwealth boat licences or who fish in Commonwealth waters. Native title holders, if any, whose traditional rights include fishing or access to the seabed in this area, may be affected because the reserve declaration can extinguish or regulate native title rights, depending on the management plan. Tourism operators who take visitors to the area for diving or whale watching may be affected only if their activities involve anchoring or disturbing the seabed. General shipping and navigation are unlikely to be directly affected because the reserve does not regulate the water column or surface; a ship transiting through the area does not touch the seabed. However, if a ship anchors within the reserve, it would be engaging in an activity on the seabed. The proclamation also affects anyone who plans to deposit material on the seabed, such as for artificial reefs or dredge spoil disposal. Research institutions conducting marine science that involves seabed sampling, coring, or deploying equipment that rests on the seabed will need permits. The breadth of affected parties is wide because the definition of “activity on the reserve” under the EPBC Act is broad: it includes entering the reserve, carrying out works, and doing anything that may have an impact on the reserve.

The proclamation itself does not set out duties or rights; those arise from the EPBC Act and any management plan made under section 370 of the Act. The key duties are prohibitions found in Part 15, Division 4 of the EPBC Act. A person must not enter a Commonwealth reserve, carry on an activity in a reserve, or take an action that will have a significant impact on the reserve, unless the action is authorised by a management plan, a permit, or a regulation. Because this reserve is IUCN Category VI, the management plan will likely permit certain sustainable uses, but those uses are not automatically allowed; they must be specifically authorised. The duty on any person undertaking an activity that may affect the seabed is to first check whether the activity is within the reserve boundaries, and if so, to obtain the necessary authorisation. The right to use the reserve for commercial or recreational purposes is not a free right; it is conditioned on compliance with the management plan. If no management plan is in place, the default prohibition applies: activities are banned unless a permit is obtained from the Minister (or delegate). The proclamation gives the Minister the power to grant permits for activities that would otherwise be prohibited. There is no right of public access to the reserve; it is not a public park in the traditional sense. The Director of National Parks has the duty to prepare a management plan for the reserve (section 366 of the EPBC Act). That plan must be prepared within a reasonable time after the proclamation. The plan may divide the reserve into zones and specify which activities are allowed in each zone. For Category VI, it is typical to have a “general use zone” where most sustainable extractive activities continue, along with “habitat protection zones” and possibly small “sanctuary zones” where no extractive use is permitted. The plan must also be consistent with the IUCN category objectives. The duty to comply with the management plan is absolute: any activity that is inconsistent with the plan is an offence. The proclamation also confers a right on the Commonwealth to exclude or regulate other rights, such as native title rights, to the extent necessary for the management of the reserve. However, the Native Title Act 1993 provides procedural rights for native title holders, including consultation before the management plan is finalised if the reserve may affect native title.

Penalties and enforcement mechanisms are entirely derived from the EPBC Act, as the proclamation contains no penalty provisions of its own. The key offence provisions under Part 15 of the EPBC Act include: an offence for entering a Commonwealth reserve without authorisation (s. 352A), which carries a maximum penalty of 500 penalty units (currently $187,500) for an individual and 5,000 penalty units ($1,875,000) for a body corporate. An offence for carrying on an activity in a reserve that is prohibited by the regulations (s. 354) also carries significant penalties. Importantly, the EPBC Act imposes strict liability for some elements of these offences; for example, ignorance of the reserve boundary is not a defence if the person ought reasonably to have known. The Act also allows for injunctions to stop unlawful activities in reserves (s. 475). Enforcement is primarily the responsibility of the Director of National Parks and officers authorised under the EPBC Act, including compliance officers from the Department and Australian Federal Police. The maximum penalty for causing serious harm to the environment of a Commonwealth reserve could also be prosecuted under the general environmental offence provisions of the EPBC Act (Pt 3), which carries penalties of up to seven years imprisonment for reckless conduct causing significant environmental damage. For minor infringements, such as unauthorised entry for recreational fishing, infringement notices may be issued under the regulations, with penalties set at a lower amount. The practical enforcement risk for a typical user is low because the reserve is relatively remote, but surveillance can occur via satellite vessel monitoring systems, aerial patrols, and on-water patrols by the Australian Border Force. The compliance burden falls particularly on commercial fishers who must demonstrate they are not fishing in prohibited zones if the management plan establishes no-take areas. The EPBC Act also has strong civil penalty provisions, with penalties of up to $1.1 million for a body corporate for a contravention of a civil penalty provision related to reserves. Additionally, the Act allows for remediation orders and other court-ordered remedies if damage is caused. Anyone found to have acted in contravention of the management plan or permit conditions may have their permit revoked and face a ban from future permits. The penalty framework is designed to be a strong deterrent, but its effectiveness depends on the resources allocated to enforcement.

The Proclamation interacts with a web of Commonwealth and state legislation. First and most obviously, it operates under the EPBC Act. Within that Act, the proclamation triggers the operation of Part 15, including the requirement for a management plan (section 366). The proclamation also interacts with the Fisheries Management Act 1991 (Cth) because the East Gippsland Marine Park lies within areas covered by Commonwealth fisheries such as the Southern and Eastern Scalefish and Shark Fishery. If the management plan prohibits or restricts fishing, AFMA must adjust fishing permits and quotas accordingly. There may be interaction with the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) if any petroleum titles exist or are sought within the reserve. The IUCN Category VI assignment suggests that non-renewable extraction may not be prohibited outright, but any petroleum activity would require an environmental plan approved by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and must be consistent with the reserve management plan. Second, the proclamation interacts with the Native Title Act 1993 (Cth). The reserve is in an area that may be subject to native title claims (e.g., the Gunaikurnai people’s native title determination on land, though its extent into the sea is limited). The EPBC Act provides that a proclamation or management plan can affect native title rights only in accordance with the Native Title Act. Any extinguishment of native title rights must comply with the future act provisions of the Native Title Act. Third, the proclamation interacts with state law through the offshore constitutional settlement. The coastal waters (within three nautical miles) are managed by Victoria. The reserve begins outside that limit, so state law does not apply directly to the seabed in the reserve. However, activities that occur in state waters and affect the reserve (e.g., sediment run-off from a coastal development) may be regulated under the EPBC Act separately. Fourth, the proclamation interacts with the Environment Protection (Sea Dumping) Act 1981 (Cth), which regulates the dumping of waste at sea. Any dumping within the reserve would be doubly regulated. Fifth, the proclamation interacts with the Shipping Act 1968 and Navigation Act 2012 (Cth) for anchorage and seabed-related shipping activities, though normal navigation through the water column is unaffected because the reserve does not include the water column. Sixth, the proclamation may interact with the Historic Shipwrecks Act 1976 (Cth) if there are shipwrecks on the seabed within the reserve. The reserve management plan would need to coordinate with heritage protections. Seventh, if a management plan is not yet in force (which is common for many marine parks), the default provisions of the EPBC Act apply, including the prohibition on discharging waste or carrying out mining operations. The interaction between this proclamation and any future legislative amendments is straightforward: the instrument can be amended by a subsequent proclamation under section 344, or the reserve could be revoked or altered by the same mechanism.

The Proclamation as originally made was registered on 2 July 2007 as “Proclamation - East Gippsland Commonwealth Marine Reserve” and commenced on 31 August 2007. It was amended once, by the Environment Protection and Biodiversity Conservation Amendment (Commonwealth Marine Reserves Renaming) Proclamation 2017 (F2017L01337), registered on 10 October 2017 and commencing on 11 October 2017. That amendment did two things. First, it amended paragraph (c) of the proclamation, which is the naming provision, to change the reserve’s name from “East Gippsland Commonwealth Marine Reserve” to “East Gippsland Marine Park”. Second, it repealed and substituted the schedule heading to reflect the new name. The amendment did not alter the boundary coordinates, the included seabed depth, or the IUCN category assignment. The amendment history table in endnote 4 also shows that the “commencement par” (the paragraph that specified the commencement date of the original proclamation) was repealed by section 48D of the Legislation Act 2003. That is a standard provision that automatically repeals commencement clauses in legislative instruments after they have achieved their purpose, to keep the text of the compilation clean. The compilation date is 11 October 2017, meaning the text presented is current as of that date. No subsequent amendments have been made as of the compilation date. The proclamation does not have any uncommenced amendments noted. The legislation history shows that the original 2007 proclamation no longer exists as a separate instrument; it has been superseded by this compilation, which incorporates the 2017 amendment. The abbreviation keys in the endnotes indicate that “am” means amended, “rep” means repealed, “rs” means repealed and substituted, and “ad” means added or inserted. The amendment history is straightforward: only one amendment, and it was purely a renaming exercise. This is relevant because anyone relying on the pre-2017 name - for example, old management plans, permits, or fishing reports - should note that the legal name has changed, though the area is identical. The renaming was part of a larger Commonwealth policy to rename all “Commonwealth Marine Reserves” to “Marine Parks” to align with international terminology and public understanding. The amendment was made under the same enabling power (subsection 344(1)) and did not require new consultation because it did not change the reserve boundaries or restrictions.

The proclamation itself has not been the subject of any reported litigation as of the compilation date. No cases are referenced in the instrument or its endnotes. However, the broader context of Commonwealth marine reserves under the EPBC Act has generated litigation, and any future challenge to this reserve could potentially arise on similar grounds. For example, in Queensland Trawlers Association v Director of National Parks [2019] FCA 1388, fishers challenged the validity of a management plan for the Coral Sea Marine Park, arguing it was invalid because the Minister failed to take into account relevant considerations. That case was decided after this compilation date, but it illustrates the type of challenge that could be brought against the management plan for this reserve rather than the proclamation itself. The proclamation is a legislative instrument, and its validity could be challenged on administrative law grounds if, for example, it was made for an improper purpose or exceeded the scope of the enabling power (subsection 344(1) of the EPBC Act). A challenge on the basis that the coordinates are ambiguous or that the GDA94 datum was not correctly applied would be a factual matter. The geodesic line on the western boundary could also be disputed if a surveyor found the coordinates produce an internal inconsistency (e.g., if the geodesic does not actually close the polygon properly, although the description seems geometrically sound). Another possible ground for challenge is that the proclamation did not satisfy any preconditions under the EPBC Act, such as the requirement in section 344(3) that the area must be within a Commonwealth area and that the proclamation must be consistent with Australia’s obligations under international law (e.g., the United Nations Convention on the Law of the Sea). No such challenge has been recorded. The absent litigation history suggests that the proclamation has been procedurally sound and that users have either accepted the boundaries or pursued disputes through administrative mechanisms rather than court proceedings. The practical implication is that there is no judicial interpretation of any of the proclamation’s provisions, so any ambiguity must be resolved by reading the text strictly and, if necessary, by reference to the general principles of statutory interpretation. If a dispute arises over, say, the exact location of the geodesic boundary, a court would likely receive expert evidence from geodetic surveyors to determine the line.

Several traps exist for the unwary reader. First, the reserve includes only the seabed to a depth of 100 metres; it does not include the water column. Many people assume a “marine park” automatically covers the entire marine environment from seabed to surface. That is not the case here. A fishing vessel can legally drift-fish through the area, but if its anchor touches the seabed, the operator may be committing an offence. A bottom trawler is clearly affecting the seabed, but a mid-water trawl targeting fish 50 metres above the seabed arguably is not. This boundary creates a complex regulatory split: the water column is regulated by general Commonwealth fisheries law, while the seabed is regulated by the EPBC Act reserve regime. Second, the western boundary is a geodesic line, not a meridian or parallel. A person plotting the park on a paper chart may draw a straight line between the two coordinate points, but that would be a rhumb line, not the geodesic. The difference could be several hundred metres depending on the location, which might push an activity outside or inside the reserve incorrectly. Mariners and GIS analysts must use the correct geodesic calculation. Third, the coordinates use GDA94. If a vessel’s GPS is set to WGS84, the difference is negligible (sub-metre), but if the chart uses the older AGD66 datum, the boundary could shift by about 200 metres to the north-east. A fisher relying on a paper chart that has not been updated to GDA94 could inadvertently fish inside the reserve. Fourth, the reserve is designated as IUCN Category VI, which is not a “no-take” zone. Many conservation advocates and some regulators assume that “marine park” means full protection. The Category VI designation explicitly allows sustainable use, so the public may assume that the area is open to all forms of fishing when in fact the management plan may restrict some methods. Fifth, if no management plan is yet in force, the default prohibition on all activities applies. This is a common trap: the proclamation came into effect in 2007, but management plans for Australian marine parks have often been delayed for years. During the gap, even fishing that would normally be allowed under a future plan could be technically illegal unless a specific permit was obtained. The user must check whether a management plan has been made for this specific reserve; the proclamation itself does not say. Sixth, the reserve boundary includes a diagonal western edge that cuts across the continental shelf. This means that the depth of the seabed varies significantly across the reserve. The proclamation includes the seabed to 100 metres depth, but in deeper parts of the reserve (e.g., near the eastern boundary where the shelf drops to 200 metres), only the top 100 metres of the subsoil are in the reserve. Below 100 metres, the subsoil is not part of the reserve. This creates a layered ownership regime that could matter for drilling or tunnelling activities. Seventh, the proclamation was originally made in 2007 but the compilation date is 2017. The renaming in 2017 did not change the boundary, but it did change the legal name. Any legal document (permit, contract, report) that refers to the “East Gippsland Commonwealth Marine Reserve” after 11 October 2017 is using the wrong name. If a permit was issued referencing the old name, it may still be valid if the description of the area is correct, but there is a risk of confusion. Eighth, the proclamation does not specify any management zones. All the detail on what is allowed and prohibited is found in the management plan or regulations. Users must locate the current version of the East Gippsland Marine Park Management Plan (or the relevant EPBC Regulations schedule) to understand the actual restrictions. The proclamation alone gives only the outermost shell of regulation.

Compliance with the proclamation begins with identifying whether your proposed activity involves the seabed within the coordinates set out in the schedule. The first step is to obtain a chart of the area and plot the boundary precisely, using the correct geodesic calculation for the western boundary and the correct datum (GDA94). Many online GIS tools (e.g., the Australian Marine Parks map viewer) already show the park boundaries, but the official legal boundary is the one in the proclamation. The second step is to determine whether a management plan has been made under section 370 of the EPBC Act. As of the compilation date (11 October 2017), the East Gippsland Marine Park was part of the South-east Commonwealth Marine Reserve Network, and a management plan for that network was made in 2013 (the South-east Commonwealth Marine Reserves Network Management Plan 2013-2023). That plan may have been updated or replaced since then. Under that plan, the reserve is likely divided into multiple zones: Sanctuary Zone (no take, no extractive use), Habitat Protection Zone (limited extractive use, no bottom trawling), and General Use Zone (sustainable use permitted). Compliance requires knowing which zone the activity falls in and adhering to the permitted activities for that zone. If the activity is not listed as a permitted activity in the management plan, a permit must be obtained from the Director of National Parks. The third step is to ensure that any activity that is allowed under the management plan does not cause significant environmental harm, because the EPBC Act continues to apply its general environmental protections. Even a permitted activity must not take an action that is likely to have a significant impact on a listed threatened species or ecological community, which may be present in the reserve. Fourth, for commercial fishers, ensure that your Commonwealth fishing concession (licence) is valid and that the fishing method you intend to use is allowed in the zone. AFMA may have additional spatial closures or gear restrictions that overlap with the reserve. You should check both the reserve management plan and your fishery’s management arrangements. Fifth, if you plan to conduct research or tourism activities involving seabed contact, apply for a research permit or commercial tourism permit from Parks Australia well in advance, because processing times can be lengthy. The permit application must include a description of the activity, an environmental assessment, and a plan for mitigating impacts. Sixth, maintain records of your activities, especially GPS track logs, to prove that you did not exceed the boundary. If you are inspected, the burden of proof rests on you to show you were outside the reserve or acting under a permit. Seventh, stay updated on any amendments to the proclamation or the management plan. The proclamation has only been amended once (the name change), but the management plan may be revised periodically. Subscribe to the Department’s notifications or check the Federal Register of Legislation regularly. Eighth, if you are involved in a regulated activity that could affect the seabed (e.g., cable laying, pipeline installation, seabed mining), you must conduct a separate environmental impact assessment under the EPBC Act and obtain a permit from the Minister. Do not assume that a state environmental approval covers the reserve; the Commonwealth reserve is a matter of national environmental significance. Ninth, if you are a recreational fisher or boater, note that anchoring may be prohibited in some zones. The management plan typically provides a map of designated anchoring areas. In no-anchor zones, you must use a mooring if available or avoid anchoring altogether. Tenth, when in doubt, contact the Director of National Parks (Parks Australia) for guidance. They can provide zone maps and answer questions about whether an activity requires a permit. Ignorance of the boundary or zone is not a defence to an offence. Compliance is ultimately about knowing the correct legal boundaries, understanding the management plan zoning, and obtaining the necessary approvals before conducting any seabed-affecting activity.