Proclamation - Franklin Marine Park

Commonwealth reserve. Under Part 15 of the EPBC Act, a Commonwealth reserve is an area of land or sea that has been proclaimed by the Governor-General under section 344. It includes the seabed and subsoil and, unless the proclamation provides otherwise, the water column above. Here the proclamation specifically limits the reserve to the seabed to a depth of 100 metres. The water column above that depth is not included in the reserve, which has important implications for pelagic fishing, shipping and other water-column uses: they are not automatically subject to Part 15 of the EPBC Act by reason of this proclamation alone. However, activities in the water column that may affect the seabed or its ecology could still trigger the Act via other mechanisms (e.g. threatened species provisions or the water trigger). The reserves boundaries are marked by precise geographic coordinates using the GDA94 datum, which is the standard for Australian geospatial data. Any geographic information system (GIS) used to plot the reserve must reference GDA94; a mismatch with other datums (such as WGS84) could produce boundary errors of tens of metres. The descriptions use geodesic` lines for the north-south boundaries rather than rhumb lines, meaning they follow the shortest path on the ellipsoid. This is standard but may cause small discrepancies when mapped on different projections.

IUCN category of managed resource protected area (Category VI). The IUCN classification system assigns protected areas to categories based on their management objectives. Category VI is defined as: protected area with sustainable use of natural resources. The primary objective is to protect natural ecosystems and use natural resources sustainably, when conservation and sustainable use can be mutually beneficial. This classification means that the reserve is not a no-take zone. Commercial fishing, recreational fishing, tourism and even low-impact mineral extraction could be permitted, provided they are consistent with the reserves management plan and do not degrade biodiversity. The assignment to Category VI is a deliberate policy choice by the Executive. It reflects a compromise between conservation and economic use. The decision to assign Category VI rather than a more restrictive category has a direct effect on the compliance burden for users: they can expect less onerous approval requirements than they would face in a national park or strict nature reserve, but they cannot assume that existing activities are automatically exempt. The management plan for the Franklin Marine Park (which is not part of this proclamation) will determine exactly which activities are allowed, under what conditions, and with what monitoring and reporting. The IUCN category also has implications for international reporting and for Australias obligations under the Convention on Biological Diversity, though those are beyond the scope of this instrument.

Seabed to a depth of 100 metres. The proclamation states that the seabed to a depth of 100 metres, is included in the reserve. This phrase is ambiguous. It could mean that the reserve includes the seabed from the seafloor down to a depth of 100 metres below the seabed (i.e. the subsoil to a depth of 100 metres). Alternatively, it could mean the seabed down to a water depth of 100 metres (i.e. the seafloor that lies at a depth of less than 100 metres below the sea surface). The EPBC Act at section 344(2) provides that a proclamation may specify the seabed and subsoil, or a part of the seabed and subsoil, that is included in the reserve. In that context, to a depth of 100 metres more naturally refers to a vertical extent below the seafloor, not a water depth cut-off. However, the practical effect is similar because the reserve area is in relatively shallow waters (the coordinates fall in depths typically less than 80 metres). Either interpretation excludes the deeper subsoil and the water column above the seabed. This limitation is a gotcha that may surprise operators who assume the entire marine environment is protected.

National Representative System of Marine Protected Areas. Though not defined in the proclamation, the instrument contributes to this system. The system is a policy framework developed by the Australian and state governments to establish a network of marine protected areas that represent the full range of marine ecosystems. The Franklin Marine Park is one of many reserves declared under the EPBC Act as part of the South-east Marine Region network. The inclusion of the phrase is more rhetorical than operative; it does not create any additional legal duties, but it indicates the government`s broader conservation rationale. The phrase appears only in the preamble and not in the operative parts of the proclamation, so it does not affect the legal effect of the instrument.

The proclamation directly affects any individual, business or government entity that conducts or plans to conduct activities within the declared polygon. The coordinates place the reserve approximately 30 to 50 kilometres north-west of King Island and south-west of the Tasmanian mainland. The immediate industry affected is commercial fishing. The area overlaps with known trawl and longline grounds for species such as flathead, gummy shark and school shark. Fishers who previously worked those grounds without Commonwealth oversight now find themselves subject to the EPBC Act`s reserve provisions. They must obtain a permit from the Director of National Parks for any fishing activity that could harm the seabed or take protected species. The assignment to IUCN Category VI means that fishing is not automatically banned, but it may be restricted by the management plan to certain gear types, seasons or catch limits. Recreational fishers in small boats from nearby towns (such as Stanley or Smithton) are also affected if they venture into the reserve. They may be required to hold a permit if their activity involves taking or interfering with protected species or damaging the seabed (e.g. anchoring on sensitive habitats). The area is unlikely to be heavily used by recreational fishers given its distance from shore, but the possibility exists.

Petroleum exploration and mining companies are also affected. The EPBC Act section 355 prohibits mining operations in Commonwealth reserves unless the Minister grants a special approval. The IUCN Category VI may allow some mineral extraction that is consistent with sustainable use, but any mining would still require a rigorous environmental assessment under Part 9 or Part 10 of the EPBC Act. No petroleum exploration is currently active in that portion of the Bass Basin, but future licence holders would face a significant additional regulatory hurdle. The Commonwealth government, through the Director of National Parks, is the primary entity responsible for managing the reserve. They must prepare a management plan (under EPBC Act section 370) within two years of the proclamation (in practice the plan was created for the broader South-east Marine Parks Network). The plan sets out the activities that are allowed, prohibited or require a permit. The Director also has powers to issue permits, monitor compliance, and enforce penalties. The Department of the Environment (now the Department of Climate Change, Energy, the Environment and Water) must assess any referrals for actions that are likely to have a significant impact on the reserve. The Australian Fisheries Management Authority (AFMA) must adjust its fisheries management arrangements to account for the reserve; for example, it may need to impose closed areas or adjust fishing permits to ensure compliance with the EPBC Act. State government agencies such as the Tasmanian Department of Primary Industries, Parks, Water and Environment may also be affected if they manage state waters adjacent to the reserve. The instrument was renamed in 2017, so any historical references to the Franklin Commonwealth Marine Reserve must be updated in internal systems, contracts and permits. Users who rely on older maps or legal descriptions risk using the wrong name and inadvertently failing to identify the correct regulatory regime.

The proclamation itself does not enumerate duties or rights; it incorporates the duties and rights established by Part 15 of the EPBC Act, the EPBC Regulations and any applicable management plan. The key duties that arise from the existence of the reserve are as follows. First, a person must not kill, injure, take, trade, keep or move a member of a native species in a Commonwealth reserve (EPBC Act section 354A). This duty applies to all native animals and plants within the reserve, unless an exemption applies (e.g. a permit issued by the Director). The penalty is up to 7 years imprisonment for an individual or 50,000 penalty units for a body corporate (currently about A$15.6 million). Second, a person must not carry out mining operations in a Commonwealth reserve (section 355). This duty is absolute: there is no provision for permits or approvals to engage in mining, except where the Minister makes a special declaration under section 355(3) that mining is not inconsistent with the reserves purpose. The prohibition covers drilling, excavating, extracting minerals or petroleum, and any activity incidental to mining. Third, a person must not take an action that is likely to have a significant impact on the ecological character of the reserve (section 354B). This is a broad duty that applies to any activity, even those not otherwise prohibited. The term ecological character is defined in the EPBC Regulations to include the reserves physical, chemical and biological features. Activities such as dredging, large-scale anchoring, seabed trawling, or introducing invasive species could potentially breach this duty. The duty is enforceable through civil penalties (500 penalty units for an individual, 5,000 for a body corporate) and criminal penalties if the action is taken knowingly or recklessly.

The principal right conferred by the proclamation is the right to apply for permits and approvals to carry out activities that would otherwise be prohibited. The EPBC Act and Regulations allow the Director of National Parks to issue permits for research, commercial activities, traditional indigenous use, and other purposes that are consistent with the reserves management plan. Because the reserve is Category VI, the management plan is more likely to allow sustainable resource use than a plan for a more restrictive category. For example, the management plan may permit certain types of fishing provided they meet sustainability criteria and do not harm the ecological character. However, a right` to use the reserve is not absolute; it is always contingent on compliance with the management plan and on obtaining necessary permits. The management plan may also confer rights on specific users, such as holders of commercial fishing concessions, to continue operations subject to conditions. The Director has a duty to consider applications in a timely manner and to make decisions that are consistent with the EPBC Act. Users have a right to seek review of adverse decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under the EPBC Act itself (section 484 allows merits review by the Administrative Appeals Tribunal for certain decisions). The proclamation also establishes the reserve as part of the National Representative System, which may give rise to obligations under international instruments, though those are not directly enforceable by private parties.

The proclamation itself does not set out penalties; it relies on the penalty framework of the EPBC Act. Part 17 of the EPBC Act establishes a rigorous set of criminal and civil penalty provisions for offences in Commonwealth reserves. Criminal penalties for contravening section 354A (killing or injuring native species) can reach up to 7 years imprisonment. The criminal standard applies if the person acted knowingly or recklessly. Civil penalties for the same conduct can be up to 50,000 penalty units (currently A$15.6 million) for a corporation and 10,000 penalty units (A$3.12 million) for an individual. The penalty for taking an action likely to have a significant impact on ecological character (section 354B) is 500 penalty units for a civil penalty provision. Additionally, the EPBC Act confers powers on authorised officers (such as rangers, Departmental investigators, and certain state officers with delegated powers) to enter the reserve, inspect vessels, search for evidence, seize equipment and documents, and issue infringement notices. Infringement notices can be issued for certain minor offences (e.g. entering a restricted zone without a permit) and typically carry a penalty of 12 penalty units for an individual. Enforcement actions are conducted by the Commonwealth Department of Climate Change, Energy, the Environment and Water, the Director of National Parks, and the Australian Federal Police. The Act also allows for enforceable undertakings, injunctions and remediation orders. The cost of non-compliance is high, especially for commercial operators, because penalties are calculated by penalty unit and the penalty unit has increased over time.

Enforcement is not limited to active patrols; the Department relies on compliance intelligence from surveillance assets (e.g. aerial surveillance, satellite monitoring, vessel tracking systems such as VMS and AIS). Fishing vessels are already required to carry VMS under Commonwealth fisheries law, and that data can be used to cross‑check with reserve boundaries. In practice, accidental incursions into the reserve by fishing vessels are common and can lead to infringement notices or formal warnings. However, intentional or repeat incursions can escalate to criminal prosecution. The Franklin Marine Park is relatively small (about 670 km²) and lies near the edge of the continental shelf, so it is well positioned for monitoring. The effective deterrence hinges on the probability of detection. Given the limited resources of the Department, enforcement may be more intensive in high‑use areas and near the boundaries. The management plan may also establish special purpose zones within the reserve with stricter rules and higher penalties for breaches. Operators should be aware that the presumption of innocence does not apply to certain civil penalty provisions, which require the defendant to show they had a permit or approval. The burden of proof on the regulator is lower in civil penalty proceedings, making it easier for the Commonwealth to obtain penalties even if a criminal prosecution is not viable.

The proclamation and the EPBC Act reserve regime interact with a web of Commonwealth, state and international laws. The EPBC Act itself provides that its provisions override any inconsistent state or territory law to the extent of the inconsistency (section 10). However, the Act also encourages cooperative management through bilateral agreements and accreditation of state assessment processes. The Franklin Marine Park lies entirely within Commonwealth waters (comprising the area between the outer limit of state waters and the 200‑nautical‑mile exclusive economic zone). Therefore, state law generally does not apply to the seabed and subsoil in that area. Nevertheless, if the state issues a fishing licence that purports to allow activity within the reserve, the licence would be of no effect if the activity is prohibited under the EPBC Act. Operators need to be aware that a state or AFMA licence does not exempt them from EPBC Act requirements.

The Fisheries Management Act 1991 (Cth) governs commercial fishing in Commonwealth‑managed fisheries. AFMA may already have closed certain areas or set catch limits that overlap with the reserve. The proclamation adds a separate layer of regulation. For example, the Southern Shark Fishery and the Commonwealth Trawl Sector of the Southern and Eastern Scalefish and Shark Fishery (SESSF) are affected. AFMA must amend its management arrangements to ensure consistency with the reserve`s management plan. This may involve restricting gear types (e.g. banning bottom trawling in the reserve) or imposing permit conditions. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) governs petroleum exploration and production. Section 355 of the EPBC Act effectively bans mining in reserves, so no petroleum titles can be granted for the area unless the Minister makes a special exception. Even then, a separate environmental assessment under the EPBC Act would be required. The Navigation Act 2012 (Cth) and the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) regulate shipping and pollution. The proclamation does not directly restrict shipping, but if a ship discharges ballast water or pollutants that threaten the ecological character, it could contravene section 354B. International law also plays a role: Australia must report on the reserve under the Convention on Biological Diversity. The IUCN Category VI assignment influences the way the reserve is reported internationally, but it has no direct legal force in domestic law. Additionally, the reserve may be considered in State of the Environment reporting, but that is informational rather than regulatory.

The interaction with the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and any native title rights is relevant but not addressed in the proclamation. If traditional indigenous fishing or cultural activities occur in the area, the EPBC Act allows the Director to issue permits for indigenous use that is consistent with the reserve`s purpose. The proclamation does not extinguish native title rights; such extinguishment would require a separate action under the Native Title Act 1993 (Cth). Finally, the management plan (once gazetted) will have the force of law under section 370 of the EPBC Act and will prevail over any inconsistent laws to the extent of the inconsistency. The plan may also incorporate by reference other laws (e.g. AFMA schedules). Operators must check the most recent management plan, which may have been amended after the 2017 renaming.

The compilation shows that the Franklin Marine Park was originally proclaimed on 2 July 2007 and registered as F2007L01915, coming into force on 31 August 2007. At that time it was named Franklin Commonwealth Marine Reserve. The amendment was made by the Environment Protection and Biodiversity Conservation Amendment (Commonwealth Marine Reserves Renaming) Proclamation 2017, registered on 10 October 2017 (F2017L01337), with effect from 11 October 2017. That amending instrument made one substantive change: it amended paragraph (c) of the proclamation (the naming provision) and changed the schedule heading. Specifically, the name was changed from Franklin Commonwealth Marine Reserve to Franklin Marine Park. The schedule heading was also substituted (indicated by rs F2017L01337). The endnote also notes that a commencement par was repealed by the Legislation Act 2003 section 48D (which deals with self‑repealing provisions in compilations). No other provisions were amended. The amendment appears to be purely a renaming exercise. The reason is not stated in the source, but it likely aligns with a broader policy to rename all Commonwealth marine reserves to marine parks for consistency and public recognition. According to the legislative history, item 94 of the 2017 instrument dealt specifically with the Franklin reserve.

The amendment did not alter the boundary coordinates, the seabed depth inclusion, or the IUCN category. The location, size and management implications of the reserve remain unchanged. However, the renaming has practical consequences. Any legal instrument, contract, licence, permit or regulatory document that refers to the Franklin Commonwealth Marine Reserve now contains an outdated name. To avoid confusion, all references should be updated to Franklin Marine Park. The compilation notes indicate that the law is current as at 11 October 2017. Users should check the Federal Register of Legislation for any subsequent amendments beyond that date, as the source provided is not the latest version. As of the given compilation date, no further amendments are recorded. The compilation also notes that uncommenced amendments are not shown; there were none as at October 2017. The history demonstrates that the proclamation is a stable instrument that has undergone only minor administrative changes.

The source does not list any litigation history. No cases are mentioned in the proclamation text, the endnotes, or the explanatory material provided. This means that, to the best of the available information, there have been no reported judicial decisions challenging the validity of this particular proclamation, its boundaries, its IUCN classification, or any permit decisions made under it. Given that the reserve was first declared in 2007 and renamed in 2017, it is plausible that legal challenges could have arisen in the Administrative Appeals Tribunal or the Federal Court concerning permit applications or management plan decisions, but such challenges are not recorded in the instrument itself. The omission of litigation history from the source does not guarantee that no litigation has occurred; it simply indicates that the compilation does not include any case references. In practice, the EPBC Act has been subject to litigation in relation to other marine reserves (e.g. the Coral Sea Marine Park, the Great Australian Bight Marine Park), but those disputes are specific to the facts and locations of those reserves. For the Franklin Marine Park, the most likely source of litigation would be a judicial review of a decision by the Director to refuse a permit for fishing or scientific research, or a challenge to the validity of the management plan. Because the reserve is small and located in a relatively low-use area, litigation may be rare. Users should be aware that the legal landscape is not static; a management plan decision or a new environmental assessment could trigger litigation in the future. The absence of litigation to date does not imply that the legal boundaries or restrictions are settled beyond challenge. For example, a party could argue that the coordinates produce an ambiguous boundary or that the seabed depth inclusion was ultra vires the EPBC Act because it fails to specify the subsoil component clearly. No such challenge appears to have been recorded. The practitioner should monitor case law developments under the EPBC Act generally, as principles from other reserve cases may be directly applicable to the Franklin Marine Park. The source does not provide any case citations, so we cannot identify any judicial interpretation of this specific instrument.

Several aspects of this proclamation may catch unwary operators off guard.

1. The seabed depth limitation. The proclamation includes only the seabed to a depth of 100 metres. The water column above that depth is not part of the reserve. This means that fishing in the water column (e.g. midwater trawling, longlining, trolling) is not automatically prohibited under Part 15 of the EPBC Act solely because the reserve exists. However, if that fishing activity damages the seabed (e.g. by snagging on the bottom or by disturbing benthic communities), it could still breach section 354B if it has a significant impact on the ecological character. Moreover, the EPBC Act still applies to the water column for matters of national environmental significance (e.g. threatened species, migratory species). So a pelagic fishery could be subject to the Act through other triggers. The conventional assumption that a marine park bans all fishing may be misplaced here. The management plan will clarify what water‑column activities are allowed. Operators must not assume that the reserve only covers the seafloor.

2. The coordinates use GDA94 datum. Most GPS units and charts are calibrated to WGS84. The difference between GDA94 and WGS84 is negligible for most purposes (less than one metre in Australia), but it can become significant when plotting boundaries with high precision, especially if the coordinates are transcribed incorrectly. A vessel using WGS84 may be slightly outside the reserve when GDA94 coordinates would place it inside, or vice versa. The risk is low but not zero. Commercial operators should ensure their GIS and navigation systems are set to the correct datum, and ideally should plot the boundary using official charts or spatial layers from the Department.

3. The IUCN Category VI allows extractive use, but the management plan may impose stricter conditions. The mere fact that a reserve is managed resource does not guarantee that existing fishing or mining rights continue. The management plan could introduce gear restrictions, seasonal closures, or total catch limits that go beyond what state or AFMA licences allow. Operators who rely on the category alone to assume they can continue business as usual may be surprised when the management plan is updated. The management plan is not included in this proclamation, so it must be obtained separately. The compilation is current to 2017; the management plan may have been superseded.

4. The renaming may cause confusion. Documents referring to the Franklin Commonwealth Marine Reserve are outdated. If a permit or approval was issued under the old name, it may still be valid, but applicants should use the correct new name in all correspondence. Similarly, environmental impact assessments that reference the old name should be corrected.

5. The prohibition on mining applies even if the mining is for scientific research or small-scale extraction. The EPBC Act section 355 is absolute, with only a ministerial exception. Any exploration drilling, even for geotechnical investigation, requires careful examination.

6. The proclamation does not itself require a permit for activities; it triggers the need to check the EPBC Act and the management plan. The absence of a permit requirement in the proclamation could lead some to think no permit is needed at all. This is incorrect. The duty to avoid harming the ecological character (section 354B) applies to all actions.

7. The area is near the boundary of state waters (three nautical miles from the coast). Users must verify whether they are in Commonwealth or state waters. If they mistakenly believe they are in state waters, they may inadvertently violate federal law. Conversely, if they assume they are in the reserve when they are actually in state waters, they may unnecessarily comply with a regime that does not apply.

Compliance with the proclamation is indirect: one must comply with the EPBC Act and the management plan for the Franklin Marine Park. The following steps provide a practical compliance pathway.

First, determine whether your proposed activity falls within the reserve boundaries. Obtain the official spatial data layer from the Department of Climate Change, Energy, the Environment and Water or the Geoscience Australia website. Plot the coordinates using GDA94. If you are using vessel GPS set to WGS84, apply a small correction (or check that your GPS supports GDA94). Confirm that the activity is on the seabed to a depth of 100 metres below the seafloor, or in the water column above but with potential to impact the seabed.

Second, identify which activities are already prohibited under the EPBC Act without a permit. Mining and petroleum extraction are banned outright unless the Minister makes a special exception. Killing or taking native species is prohibited unless it is an approved take through a permit. Any action that could have a significant impact on the ecological character of the reserve requires approval. If your activity falls into any of these categories, do not proceed without a permit or approval.

Third, check the current management plan. The plan, published by the Director of National Parks, specifies which activities are allowed, which require a permit, and which are prohibited. It may also designate zones within the reserve with different rules. The plan has the force of law. It may permit certain types of commercial fishing (e.g. line fishing, trap fishing) while banning others (e.g. demersal trawling). It may also allow scientific research with a permit, and recreational fishing under specified conditions. Obtain the plan from the Parks Australia website and read the provisions relevant to your intended activity. The plan is updated periodically; ensure you use the latest version.

Fourth, if your activity requires a permit, apply to the Director of National Parks. The application process is set out in the EPBC Regulations. You will need to provide details of the activity, its location, timing, likely environmental impact, and proposed mitigation measures. The Director will assess the application against the management plan and the EPBC Act. If the activity is likely to have a significant impact, a referral under Part 9 of the EPBC Act may also be required. Allow sufficient time for assessment: the timeline can be several months for complex proposals.

Fifth, maintain records of permits, approvals, and any conditions imposed. Operators should keep a log of all activities within or near the reserve, including date, time, location (GPS coordinates), and gear used. If you are a commercial fisher, ensure your VMS unit is operational and that your vessel reporting systems are correctly set. The Department may cross‑reference your reported position with the reserve boundaries.

Sixth, train crew and staff on the reserve boundaries and rules. Accidental incursions are a common cause of non-compliance. Provide crew with laminated copies of the reserve boundary and prohibited/restricted activities. Include the management plan summary in vessel induction materials. Ensure that any subcontractors (e.g. bait suppliers, transport vessels) are also aware of the restrictions.

Seventh, regularly check for updates to the management plan or any new legislative instruments (including re-proclamations or amendments to the EPBC Regulations). The compilation provided only covers up to October 2017; there may be subsequent changes. The Federal Register of Legislation is the authoritative source.

Eighth, if you are considering a new commercial venture, such as tourism or aquaculture, engage early with the Department and seek pre‑application advice. The Department can provide guidance on the likelihood of approval and the assessment process. This upfront engagement can reduce uncertainty and avoid costly delays.

Finally, consider obtaining insurance that covers regulatory penalties and clean-up costs, particularly if your activity involves a risk of environmental damage. Although compliance is the best defence, inadvertent breaches can still occur, and the cost of remediation or penalty can be substantial.