Proclamation - South Tasman Rise Marine Park

The key legal concept is a “Commonwealth reserve” under Part 15 of the EPBC Act. Section 345 defines a reserve as consisting of the area declared, including the airspace over the area, the waters within the area, the seabed, and the subsoil, unless the proclamation specifies otherwise. Here, the proclamation explicitly includes only “the seabed to a depth of 100 metres” - not the water column, not the airspace, and not the subsoil beyond 100 metres below the seabed. This selective inclusion is critical: it means the reserve is spatially limited to the seabed and the layer of subsoil down to 100 metres. Activities in the water column (such as fishing, shipping, and scientific sampling of water) are not directly regulated by this reserve declaration, although they may still be subject to other provisions of the EPBC Act if they have a significant impact on a matter of national environmental significance. The proclamation assigns the reserve to IUCN Category VI (managed resource protected area). Under the IUCN framework, Category VI allows sustainable use of natural resources, meaning that activities such as fishing, mining, and tourism can be permitted if they are consistent with the conservation of biodiversity and ecosystem integrity. However, the IUCN category alone has no direct legal force; it guides the development of management plans and the exercise of discretionary powers under the EPBC Act. The management plan is the instrument that will specify which activities are allowed, prohibited, or require approval. Another concept is the geographic boundary system. The area is defined by points using geographic coordinates (latitude, longitude) on the GDA94 datum. The boundary follows geodesics (shortest paths on the spheroid) and uses meridians of longitude and parallels of latitude. The outer edge of the area is defined by the outer limit of Australia’s EEZ, as declared under the Seas and Submerged Lands Act 1973 (Cth). The EEZ boundary is not static; changes to Australian claims under UNCLOS could theoretically alter the reserve boundary, though that would require a new proclamation. The term “seabed to a depth of 100 metres” is ambiguous: it means a vertical depth of 100 metres beneath the seabed surface, not a depth of water. This is important for petroleum exploration, which typically targets reservoirs several kilometres below the seabed. The proclamation therefore restricts activities that affect the shallow subsoil (0-100 metres), but deeper drilling and extraction (below 100 metres) may not be covered by this reserve - though such activities would still be subject to other EPBC approvals and state/territory laws for the water column.

The proclamation directly affects anyone who undertakes an activity that may have an impact on the seabed within the described coordinates, or who seeks to take action that is inconsistent with the management plan for the reserve. The primary affected parties are commercial fishing operators who trawl or use bottom-contact gear on the South Tasman Rise. The area has been historically fished by the South East Trawl Fishery and the Southern and Eastern Scalefish and Shark Fishery, targeting species such as orange roughy, oreos, and alfonsino. Trawling directly disturbs the seabed, so it is likely to be prohibited or require approval under the management plan. The proclamation does not automatically ban fishing, but it creates the legal basis for restrictions. The Australian Fisheries Management Authority (AFMA) must manage fishing permits to ensure they are consistent with the EPBC Act and the management plan. The oil and gas industry is also affected. The South Tasman Rise is not a proven petroleum province, but it is within the offshore area administered under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). Any exploration or production activities that involve drilling, seismic surveys, or infrastructure installation on the seabed would require an EPBC approval and must be consistent with the reserve’s objectives. The inclusion of seabed to 100 metres depth means that shallow subsea pipelines, cables, and anchors may also be affected. Shipping and naval transit are not directly affected because the water column is not part of the reserve. However, activities such as anchoring, which physically disturb the seabed, could be caught. Research institutions conducting benthic surveys, geological sampling, or underwater archaeology need to apply for permits or follow the management plan. State and territory governments have no direct jurisdictional role because the area is within Commonwealth waters (beyond the coastal waters). However, any activity emanating from vessels or installations that may cause pollution or affect the seabed may involve concurrent state regulation under other legislation, such as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). The area is adjacent to the Tasmanian coast but entirely within the EEZ, so Tasmania has no jurisdiction over the seabed. The proclamation also affects the Department of the Environment and Energy (now the Department of Climate Change, Energy, the Environment and Water) and the Director of National Parks, who are responsible for preparing the management plan, assessing approvals, and enforcing the reserve. The compliance burden falls on every person or entity that might use the area, regardless of whether they were previously operating there. There is no mention in the proclamation of compensation for loss of access or grandfathering of existing rights, so existing users bear the full cost of adjustment.

The proclamation itself imposes no duties or rights. It is a declaratory instrument that triggers the duties and rights contained in the EPBC Act and its regulations. The central duty is found in section 354A of the EPBC Act: a person must not take an action in a Commonwealth reserve that has, will have, or is likely to have a significant impact on the environment, unless the action is in accordance with a management plan in force for the reserve, or the person has an approval under Part 15. This duty applies to the seabed and subsoil included in this reserve. An “action” includes a project, development, undertaking, or activity, or a series of activities. The duty is not absolute - it only attaches if the action will have a significant impact. Minor seabed disturbances (e.g., a single anchor drop) may not meet that threshold, but any commercial fishing or drilling almost certainly would. A right exists to apply for an approval under section 354A(9) or to rely on an existing management plan. The EPBC Act also provides rights to participate in the development of management plans (section 368, requiring public consultation). The proclamation does not grant any exclusive rights to exploit resources; rather, it subjects exploitation to approval. Rights under other legislation (e.g., a fishing permit issued under the Fisheries Management Act 1991) do not override the EPBC Act; they must be exercised in a manner consistent with the reserve. The IUCN Category VI classification implies that sustainable use is an objective, so the management plan should provide for some level of extractive activity. However, the proclamation does not itself authorise any use. There is a right to seek judicial review of decisions made under the EPBC Act regarding the reserve, such as refusal of an approval or the making of a management plan. But the proclamation itself is a legislative instrument and can only be challenged on grounds of invalidity (e.g., ultra vires), which would be difficult given its clear statutory basis. There is no duty on the government to provide compensation for loss of property rights or economic opportunities, as Commonwealth reserves are created for a public purpose and no acquisition of property is involved (the area is within Australia’s maritime jurisdiction, not privately owned). The only right that directly flows from the proclamation is the right of the public to access the reserve for purposes consistent with the management plan, subject to any restrictions (e.g., fishing closures, permit requirements).

The proclamation does not set penalties, but it triggers the enforcement mechanisms of the EPBC Act. Under section 354A of the EPBC Act, an action that has a significant impact on the environment in a Commonwealth reserve in contravention of the section is an offence of strict liability. The maximum penalty for an individual is 7 years imprisonment and/or a fine of 420 penalty units (currently $107,800 per unit, so approximately $45,276 per unit? Actually, under the Crimes Act 1914 (Cth), a penalty unit is currently $275 for individuals, so 420 x $275 = $115,500. For body corporates, the fine is 5 times that amount: $577,500. However, if the offence is proven to be intentional or reckless, criminal penalties can be much higher (up to 10,000 penalty units for corporations). In addition, civil penalty provisions apply: a person can be ordered to pay a fine of up to 5,000 penalty units ($1.375 million for an individual) for contravening section 354A. The EPBC Act also provides for remediation orders, injunctions, and enforceable undertakings. Enforcement can be carried out by the Department, the Australian Federal Police, and state agencies under delegation. The Reserve Manager (Director of National Parks) has powers to issue directions, seize property, and require information. The proclamation itself is not separately enforceable; it is the underlying Act that carries the teeth. The key enforcement risk for users is that the boundaries of the reserve are complex (geodesic lines, EEZ limit), and ignorance of the coordinates is no defence. A fishing vessel that trawls within the reserve (even inadvertently) may be committing an offence if the trawling has a significant impact on the seabed. The prosecution does not need to prove the person knew the area was a reserve; strict liability applies except for the significant impact element (which is a fault element of recklessness or negligence, depending on the provision). Compliance costs include the need for vessel operators to install precise GPS mapping of the reserve boundaries and to keep records of positions. The enforcement approach has historically been aerial surveillance, patrol vessels, and monitoring of fishing logs and VMS (Vessel Monitoring Systems). There is no specific mention of increased penalties in the proclamation, but the penalties for reserve offences are substantially higher than for non-reserve activities, reflecting the higher environmental protection status.

The proclamation operates within a web of Commonwealth and international law. The primary interaction is with the EPBC Act itself: Part 15 (Reserves) applies automatically upon proclamation. The EPBC Regulations 2000, particularly Part 17 (Reserves), contain additional provisions about prohibited activities, permits, and fees. There is also the Environment Protection and Biodiversity Conservation (Marine Protected Areas) Management Plan 2018-2028 (or the specific management plan for South Tasman Rise Marine Park, which must be made under section 367). The management plan will specify which activities are allowed (e.g., fishing, tourism, research) and under what conditions. The proclamation is not a management plan; the management plan is a separate instrument that may be amended independently. The Fisheries Management Act 1991 (Cth) confers powers on AFMA to allocate fishing rights and set conditions of fishing. A fishing permit issued under that Act does not authorise fishing in a Commonwealth reserve if the fishing is inconsistent with the EPBC Act or the management plan. AFMA must ensure any fishing concessions are compatible with the reserve. This means fishing cuts may be imposed on fishers without compensation, as the reserve triggers a statutory overlay. The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) governs petroleum exploration and production in Commonwealth waters. A petroleum title (e.g., an exploration permit) grants rights to the seabed and subsoil, but those rights are subject to the EPBC Act. A title holder must obtain an EPBC approval before undertaking any activity that may have a significant impact on the reserve. The reserve’s IUCN Category VI suggests that some petroleum activities may be permissible if sustainable, but in practice, no petroleum approvals have been granted in this area. The Seas and Submerged Lands Act 1973 (Cth) is relevant because the reserve’s boundary at the outer limit of the EEZ is defined by a proclamation under that Act. Any change to the EEZ limit (e.g., due to a continental shelf claim) would alter the reserve’s boundary without amending this proclamation, potentially enlarging or shrinking it. This is a source of uncertainty for users. International law, primarily UNCLOS, underpins Australia’s sovereign rights over the EEZ, but does not directly constrain reserve management. The proclamation does not affect the operation of the Navigation Act 2012 (Cth) or the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), which regulate shipping and pollution in the water column. Since the water column is not included in the reserve, ordinary shipping traffic is unaffected, although anchoring would disturb the seabed and may trigger EPBC oversight. State laws (e.g., Tasmanian Living Marine Resources Management Act 1995) do not apply beyond coastal waters (generally 3 nautical miles). The reserve is entirely outside coastal waters, so state fishing and environmental laws have no jurisdictional application there.

The proclamation was originally made on 2 July 2007 and registered on the Federal Register of Legislation as F2007L01920 under the name “Proclamation , South Tasman Rise Commonwealth Marine Reserve”. It commenced on 31 August 2007. No application, saving, or transitional provisions were included. The only amendment occurred via the Environment Protection and Biodiversity Conservation Amendment (Commonwealth Marine Reserves Renaming) Proclamation 2017 (F2017L01337), which registered on 10 October 2017 and commenced on 11 October 2017. That amendment changed paragraph (c) of the proclamation to give the reserve the name “South Tasman Rise Marine Park” (replacing “South Tasman Rise Commonwealth Marine Reserve”) and substituted the Schedule heading accordingly (from “South Tasman Rise Commonwealth Marine Reserve” to “South Tasman Rise Marine Park”). No other provisions were amended. The amendment was purely a renaming exercise, bringing the nomenclature in line with the broader rebranding of Commonwealth marine reserves as “marine parks”. There have been no substantive amendments to the boundaries, depth inclusion, or IUCN category since the original proclamation. The self-repealing provision in the original commencement paragraph (which would have automatically repealed the proclamation after a period) was repealed by section 48D of the Legislation Act 2003 (Cth), so the proclamation remains in force indefinitely unless revoked by a later proclamation or sunsetting under the Legislation Act. The compilation history shows no misdescribed amendments or editorial changes. The legislative history indicates that the 2007 proclamation was the original, and the 2017 amendment is the only change. No other amendment bills have been introduced or passed. This stability is a double-edged sword: it provides regulatory certainty for users, but it also means that the reserve’s enabling instrument has not been adapted to reflect new scientific information, changes in fishing patterns, or boundary disputes. The 100-metre seabed depth inclusion has never been revisited, nor has the IUCN category been reassessed. Any change would require a new proclamation (or an amendment, if the government chooses to issue one), which would be a legislative instrument subject to parliamentary scrutiny.

The compilation does not refer to any litigation concerning this proclamation, and no cases are mentioned in the endnotes or text. As a legislative instrument, the proclamation itself is not typically the subject of direct challenge; litigation tends to focus on decisions made under the EPBC Act relating to the reserve (such as refusal of approval, conditions of a management plan, or enforcement actions). To the extent that any litigation has occurred, it is not captured in this source. It is possible that the proclamation has been cited in proceedings concerning fishing or environmental impact assessment, but that is speculative. The absence of recorded litigation suggests that the reserve has not been a flashpoint for disputes, at least not at the level of the High Court or Federal Court reported decisions. However, the lack of case law may also indicate that the costs of challenging the proclamation or its management plan outweigh the likely benefits for commercial users, or that the restrictions have been modest due to the IUCN Category VI classification. The proclamation is unlikely to be successfully challenged on validity grounds because it strictly follows the form required by subsection 344(1) of the EPBC Act: it declares an area, specifies the included part (seabed to 100m), gives a name, and assigns an IUCN category. There is no evidence of procedural defect, such as failure to consult (the EPBC Act does not require consultation before a proclamation under s 344, unlike management plans). The boundary description appears precise and uses an official datum. The only potential source of litigation would be a dispute over the coordinates or the application of the EEZ outer limit if that limit were contested internationally or if it moved due to a continental shelf extension. No such international challenge has been recorded in public sources, but that is outside the scope of this source. Practitioners should be aware that while the proclamation itself has no litigation history, enforcement actions under the EPBC Act for activities within the reserve could generate decisions that interpret the proclamation incidentally (e.g., whether a certain area falls within the reserve). However, the compilation does not provide any such decisions, and therefore none can be cited.

Several less obvious features of the proclamation warrant attention. First, and most critically, the proclamation includes only the seabed and the subsoil to a depth of 100 metres. The water column above the seabed is not part of the reserve. This means that activities that take place entirely in the water column, such as pelagic fishing, shipping, oceanographic sampling, and even underwater noise generation, are not directly regulated by Part 15 of the EPBC Act by virtue of this reserve. However, activities that affect the seabed, such as bottom trawling, dredging, anchoring, seafloor mining, and pipeline installation, are caught. A vessel that fishes using midwater trawls that do not contact the seabed may not need an EPBC approval related to this reserve, though it may still need approval if the fishing has a significant impact on a listed threatened species or cetacean. The 100-metre subsoil depth inclusion is a trap for the unwary: it covers shallow subsea infrastructure (cables, pipelines, anchors) but not deeper drilling. A petroleum company drilling an exploration well may argue that the well extends through the 100-metre layer, but the well itself is a structure that penetrates the seabed and extends below 100 metres. The proclamation does not clarify whether the act of drilling is an action “in” the reserve (if the drill passes through the included layer) or whether the reserve only covers the static seabed surface. The EPBC Act defines “in” broadly, and it is likely that any activity that disturbs or occupies the seabed would be considered an action in the reserve. The coordinates use the GDA94 datum, which is the standard for Australian nautical charts. However, older charts and GPS units may use the WGS84 datum (which is essentially identical for most purposes, but not exactly). The difference is less than a metre for positions, but survey-grade mapping is required for boundary compliance. The boundary follows the outer limit of the EEZ as declared under the Seas and Submerged Lands Act 1973 proclamation of 26 July 1994. That outer limit is defined by UNCLOS Article 57 (200 nautical miles from territorial sea baselines) and may be subject to adjustment if Australia makes a continental shelf submission that extends the EEZ beyond 200 nm. The reserve boundary would then expand automatically, because the proclamation references the EEZ outer limit as a dynamic boundary. Users must check the current EEZ limit, not just the coordinates in this compilation. The proclamation is a legislative instrument under the Legislation Act 2003 (Cth). It is subject to sunsetting after 10 years (section 50). However, a saving provision (section 50B) can extend its operation, and the original proclamation was made in 2007 and has not sunsetted because of the amendment in 2017 which likely reset the sunset period. Nevertheless, users should confirm the current status. The IUCN Category VI assignment is often misunderstood. It does not mean the area is “lightly protected” or that all sustainable uses are automatically allowed. The management plan can impose very restrictive measures, including no-take zones, within a Category VI reserve. The proclamation does not lock in any particular level of use; it only sets the overarching objective. Finally, there is no transitional provision for existing users. A fishing operator who held a statutory fishing right (SFR) before 2007 may have had an expectation of continued access. But the proclamation does not grandfather those rights. The operator must seek a permit under the management plan, and if the plan does not allow that type of fishing, the operator loses access without compensation. This is a significant gotcha for long-standing industries.

Compliance begins with identifying whether a proposed or ongoing activity falls within the geographic boundaries of the South Tasman Rise Marine Park. The coordinates in the Schedule should be plotted on a nautical chart or GIS system using GDA94. The outer limit of the EEZ must be obtained from the latest proclamation under the Seas and Submerged Lands Act 1973. Once an activity is determined to be within the reserve area, the next step is to ascertain whether the activity affects the seabed or subsoil. If the activity occurs entirely in the water column (e.g., pelagic fishing, transit), it is not caught by this reserve, but other EPBC obligations may apply. If the activity involves contact with the seabed or extraction from the subsoil (e.g., bottom trawling, drilling, seabed mining, anchoring, cable laying, dredging), the EPBC Act Part 15 requires that it be in accordance with a management plan or have an approval. The management plan for the reserve should be consulted. As of the compilation date, the management plan may be the South Tasman Rise Marine Park Management Plan 2013-2023 (likely incorporated into the broader Commonwealth Marine Reserves Network Management Plan or a standalone plan). The plan will specify which activities are prohibited, which require a permit, and which are allowed without a permit (e.g., certain types of research). If the activity is not in accordance with the management plan, an approval must be obtained under section 354A(9) of the EPBC Act. The application process involves submitting a referral to the Department describing the action and its potential environmental impacts. The Minister (or delegate) will assess whether the action is likely to have a significant impact on the reserve’s values. If approval is granted, conditions may be imposed. For commercial fishing, AFMA must also ensure that any fishing permit or concession is consistent with the management plan. Vessels operating in the area should have onboard GPS mapping of the reserve boundary and should maintain a log of fishing positions. VMS data will be reviewed by the Department and AFMA. For petroleum exploration, the operator must secure an EPBC approval and also comply with the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), which require an environment plan accepted by NOPSEMA. The EPBC approval will likely be a condition precedent to any drilling. For research, a permit must be obtained from the Director of National Parks (or a delegate), generally under regulation 12.38 of the EPBC Regulations. Research activities that disturb the seabed (e.g., coring) will require a permit; those that only sample water may not. Any person or entity undertaking an activity in the area should also monitor for amendments to the proclamation or management plan. The Department maintains the Federal Register of Legislation and publishes notices of changes. Penalties for non-compliance are high, so a conservative approach , obtaining written advice from the Department or a consultant , is advisable. Finally, because the water column is not included, compliance with other laws (e.g., navigation, pollution, fisheries) remains necessary. The reserve does not displace those obligations.