Ralphs Bay Conservation Area (Clarification) Act 2006

Ralphs Bay Conservation Area. This is the reserved land that the Act declares to constitute the conservation area. The concept is defined by reference to the Regional Forest Agreement (Land Classification) Act 1998. Section 3(1) of the Act states that the area specified in Schedule 1 is the reserved land constituting the Ralphs Bay Conservation Area established by section 17 of, and item 31 of Schedule 9 to, that Act. The land itself is Crown land (defined with the same meaning as in section 17 of that Act) and reserved land (defined with the same meaning as in section 3 of that Act). The Schedule 1 description covers about 171 hectares as shown on Plan 7395 in the Central Plan Register, but critically excepts any part that the Resource Planning and Development Commission (now the Tasmanian Planning Commission) may determine as necessary or convenient for the project of State significance.

Project of State significance. This concept appears repeatedly in the Act and forms the trigger for both the conditional commencement and the power of the Commission to determine land status. The project is that referred to in the State Policies and Projects (Project of State Significance) Order 2006. The Act does not name the project itself, but the reference to that Order and the related integrated assessment process under the State Policies and Projects Act 1993 indicates a specific development proposal (widely known to be the Ralphs Bay marina proposal). The project’s status as a project of State significance triggers the integrated assessment regime under Part 3 of that Act.

Notwithstanding clauses. The Act uses the phrase “notwithstanding” in two critical places. Section 3(2) provides that subsection (1) has effect notwithstanding any other Act, giving the land declaration paramountcy over any inconsistent legislation. Section 5(1) provides that, notwithstanding section 20(2) of the State Policies and Projects Act 1993, the Minister may give a further written direction to the Tasmanian Planning Commission. This suspends the usual prohibition or limitation on such directions in the context of the integrated assessment for this particular project.

Crown land and reserved land. The Act borrows these definitions from the Regional Forest Agreement (Land Classification) Act 1998. Crown land under that Act generally means land vested in the Crown or held by a public authority on behalf of the Crown. Reserved land is land that is reserved under that Act for a specified purpose, in this case conservation. By declaring the land to be reserved land, the Act confirms its classification within the forest agreement framework, which carries implications for forestry operations, biodiversity protection, and land use planning.

Conditional commencement. The remaining provisions (section 3 and Schedules) do not come into force immediately. Their commencement is contingent on a future event: either a Commission report recommending the project not proceed, or a Governor’s order allowing the project to proceed on conditions. This means that the legal status of the land as the Ralphs Bay Conservation Area under this Act is not fixed at the date of Royal Assent but depends on the outcome of the project assessment. If the project proceeds without a Governor’s order or the Commission does not submit the relevant report, the commencement condition may never be satisfied, leaving the prior declaration regime intact.

The Act primarily affects the Crown as the owner of the land in question. The Crown is the entity that previously held the land under some declaration, and the Act overrides that declaration in favour of the new boundary definition. As a result, the Tasmanian Government, through its agencies, must manage the land in accordance with the conservation area status once section 3 commences.

The Tasmanian Planning Commission (formerly the Resource Planning and Development Commission) is directly affected by sections 4 and 5. Section 4 grants the Commission the power, during its integrated assessment of the project of State significance, to determine that part of the Schedule 1 land is necessary or convenient for the project to proceed. Section 5 empowers the Minister to give a further written direction to the Commission to undertake that integrated assessment, overriding the usual constraints in the State Policies and Projects Act 1993. The Commission must therefore respond to both the determination power and any Ministerial direction in the context of a specific project.

The Minister for Primary Industries and Water (as at the time of enactment) is affected by section 6, which assigns administration of the Act to that Minister until formal arrangements are made. The Minister also holds the power under section 5 to issue directions to the Commission, and the exercise of that power can revoke the earlier direction given on 7 August 2006 to the Resource Planning and Development Commission.

Proponents of the project of State significance are affected because the Act provides a mechanism for part of the conservation area to be excised or determined as necessary for the project. The Schedule 1 exception directly contemplates that the Commission may carve out land that is needed for the project, thereby reducing the conservation area’s extent. This creates a potential path for the development to proceed within what would otherwise be a reserved conservation area.

Conservation stakeholders and the broader public are affected because the Act clarifies (or potentially redefines) the boundaries of an existing conservation area. If the Commission determines land is necessary for the project, that land is excluded from the conservation area definition. Conversely, if no such determination is made, the full 171 hectares remains reserved land. The conditional commencement also means the public must monitor whether the relevant triggers have occurred to know whether section 3 is in force.

The Department of Primary Industries and Water is affected as the responsible department for administering the Act under section 6. This may involve maintaining records, advising the Minister, and coordinating with the Tasmanian Planning Commission.

Duty to recognise the declared conservation area. Once section 3 commences, all persons and government bodies must treat the land specified in Schedule 1 (subject to any Commission determination) as the Ralphs Bay Conservation Area. Section 3(2) makes this duty paramount over any other Act, so inconsistent provisions in other statutes cannot be used to argue that the land has a different status. This duty applies particularly to land management agencies, planning authorities, and anyone exercising statutory powers over the land.

Right of the Tasmanian Planning Commission to determine land status. Section 4 confers a power, not a duty, on the Commission. In undertaking the integrated assessment of the project of State significance, the Commission may determine that part of the Schedule 1 land is necessary or convenient for the project to proceed. This determination has the effect of excluding that part from the conservation area definition in Schedule 1. The Commission is not obliged to make such a determination; it is a discretionary power to be exercised as part of its assessment function.

Power of the Minister to give a further written direction. Section 5(1) grants the Minister administering Part 3 of the State Policies and Projects Act 1993 the power to give a further written direction to the Tasmanian Planning Commission to undertake an integrated assessment of the project. This power exists notwithstanding section 20(2) of that Act, which would otherwise limit or prohibit such directions. The exercise of this power is not automatic; it requires a positive step by the Minister. Section 5(2) provides that if the Minister gives such a direction, the earlier direction given to the Resource Planning and Development Commission on 7 August 2006 is revoked.

Right to rely on the Schedule 1 exception. If the Commission determines that part of the land is necessary or convenient for the project, that part is excluded from the conservation area definition. The proponent of the project then has a right to rely on that exclusion for the purposes of the project’s development, subject to other approvals required by law.

Right to challenge commencement status. Because the commencement of section 3 and the Schedules is conditional, any person with a sufficient interest may argue that the land declaration has not yet come into force if the trigger events under section 2(2) have not occurred. This right of challenge exists under general administrative law principles, although the Act itself does not create a specific review mechanism.

The Ralphs Bay Conservation Area (Clarification) Act 2006 does not create any offences or penalties. It is a declaratory and empowering statute, not a regulatory or prohibitory one. Enforcement of the conservation area status would rely on other legislation that governs reserved land, such as the Regional Forest Agreement (Land Classification) Act 1998, the National Parks and Wildlife Act 1970, or the Nature Conservation Act 2002. If the land is reserved land under the Regional Forest Agreement (Land Classification) Act 1998, that Act may impose restrictions on activities such as clearing, mining, or construction, and breach of those restrictions may attract penalties.

The Act’s principal enforcement mechanism is its overriding effect. Section 3(2) provides that the declaration has effect notwithstanding any other Act. This means that if another Act purports to allow an activity inconsistent with the conservation area status, the declaration under this Act prevails. A person seeking to enforce the conservation area status could rely on this provision to argue that the land cannot be used for purposes that conflict with its reservation.

The absence of penalties in this Act does not mean the land is unprotected. Any unauthorised interference with the conservation area could be prosecuted under the relevant parent Act. For example, if the land is reserved under the Nature Conservation Act 2002, that Act contains offence provisions for damaging reserved land. The proponent of the project of State significance would still need to obtain all necessary approvals under the State Policies and Projects Act 1993, the Environmental Management and Pollution Control Act 1994, and any other applicable laws, and those laws contain their own penalty regimes.

The Ministerial direction power under section 5 is also not directly penalised. Failure to comply with a direction would be a matter between the Minister and the Tasmanian Planning Commission, potentially giving rise to a judicial review challenge or a political consequence, but not a criminal sanction.

The Act interacts most directly with the Regional Forest Agreement (Land Classification) Act 1998. Section 3(1) of the Act declares the Schedule 1 land to be the reserved land that constitutes the Ralphs Bay Conservation Area established by section 17 of, and item 31 of Schedule 9 to, that Act. The definitions of Crown land and reserved land are borrowed from that Act. The effect is to confirm that the land falls within the Regional Forest Agreement framework, which governs forest management and conservation in Tasmania. Any changes to the boundary under this Act therefore also affect the application of that framework.

The Act interacts with the State Policies and Projects Act 1993 in several ways. The project of State significance is referred to in an order made under that Act. Section 4 of this Act gives the Tasmanian Planning Commission a power that it exercises as part of its integrated assessment under that Act. Section 5(1) overrides section 20(2) of that Act, which would otherwise restrict the Minister’s ability to give directions. The commencement trigger in section 2(2) refers to reports and orders under sections 26(1) and 26(6) of that Act. The Act is therefore parasitic on the processes of the State Policies and Projects Act 1993; without that Act, the project assessment could not proceed and the commencement conditions could not be met.

The Administrative Arrangements Act 1990 is engaged by section 6, which assigns administration of this Act to the Minister for Primary Industries and Water and the Department of Primary Industries and Water until a formal order is made under section 4 of that Act. That order may later reassign administration to another Minister or department.

The Resource Planning and Development Commission Act 1998 is indirectly relevant because the Tasmanian Planning Commission replaced the Resource Planning and Development Commission in 2009. The Schedule 1 reference to the Resource Planning and Development Commission is outdated but has been effectively substituted by the amendments to sections 4 and 5 that now refer to the Tasmanian Planning Commission. The Act as a whole must be read with that institutional change in mind.

The Act also interacts with the State Policies and Projects (Project of State Significance) Order 2006, a statutory rule that identifies the specific project. The Act does not describe the project, but the Order did. Because the project may have lapsed or changed, the Act’s practical operation depends on the continued existence of that Order and the project it identifies.

Section 3(2) contains a paramountcy clause: the declaration has effect “notwithstanding any other Act”. This gives the Act precedence over all other Tasmanian Acts to the extent of any inconsistency. For example, if the Land Use Planning and Approvals Act 1993 or the National Parks and Wildlife Act 1970 purported to treat the land differently, this Act prevails. However, the paramountcy only applies to the declaration under subsection (1); the other provisions of the Act do not carry the same override.

The Act has been amended once. The State Policies and Projects Amendment Act 2009 (No. 28 of 2009) made three amendments, all effective from 1 September 2009. Section 49 of that Act amended section 2(2) of this Act, replacing references to the Resource Planning and Development Commission with references to the Tasmanian Planning Commission in the commencement trigger provisions. Section 50 amended section 4 of this Act, similarly replacing the Resource Planning and Development Commission with the Tasmanian Planning Commission in the power to determine land status. Section 51 amended section 5 of this Act, replacing the Resource Planning and Development Commission with the Tasmanian Planning Commission in the Ministerial direction provisions.

These amendments were consequential to the abolition of the Resource Planning and Development Commission and the establishment of the Tasmanian Planning Commission under the Tasmanian Planning Commission Act 1998 (as amended in 2009). The amendments ensure that the powers and functions under this Act are exercisable by the successor body.

Notably, the amendments did not update the reference to the Resource Planning and Development Commission in Schedule 1. That schedule still refers to “the Resource Planning and Development Commission” as the body that may determine part of the land is necessary for the project. This creates a potential textual inconsistency: section 4 speaks of the Tasmanian Planning Commission, while Schedule 1 speaks of the Resource Planning and Development Commission. As a matter of statutory interpretation, the amendment to section 4 would likely be read as applying to the Tasmanian Planning Commission as the successor body, and the Schedule 1 reference would be read as a reference to that body by implication. However, the lack of a direct amendment to Schedule 1 is a drafting oversight that could cause confusion.

No other amendments have been made to the Act since 2009. The Act remains in force as at the compilation date (12 April 2026 in the version provided) with the 2009 amendments incorporated.

The Act as provided does not reference any litigation history. No cases are named in the text, and the Act does not contain a note of any judicial decisions that have considered its provisions. It is possible that the Act has been the subject of legal proceedings in the Supreme Court of Tasmania or other courts, but the source does not disclose any such cases. Practitioners should conduct their own research to determine whether the Act has been judicially considered, particularly in relation to the commencement conditions, the paramountcy clause, or the validity of the Ministerial direction.

Given the Act’s narrow subject matter and conditional commencement, it may never have been necessary for a court to interpret its provisions. The project of State significance to which the Act refers may not have proceeded to the point where a dispute arose, or the dispute may have been resolved through administrative processes rather than litigation. Alternatively, the commencement conditions may not have been satisfied, meaning section 3 never came into force, reducing the likelihood of litigation about the land’s status.

The absence of litigation history in the source does not mean the Act has no legal significance. Its paramountcy clause and its interaction with the State Policies and Projects Act 1993 could give rise to complex issues of statutory interpretation that have simply not been tested in court. Any future proceedings would need to consider the amendment history, the conditional commencement, and the relationship between the Act and other land management legislation.

Conditional commencement trap. The most significant gotcha is that section 3 (the land declaration) and the Schedules may not be in force. Section 2(2) makes commencement conditional on one of two events: (a) the Tasmanian Planning Commission submits a report under section 26(1) of the State Policies and Projects Act 1993 recommending the project not proceed, or (b) the Governor makes an order under section 26(6) that the project may proceed on conditions. If neither event has occurred, the land declaration never took effect. This means that the pre-existing definition of the Ralphs Bay Conservation Area (under the Regional Forest Agreement (Land Classification) Act 1998 and any prior declarations) remains unchanged. A practitioner must verify whether either trigger event has occurred before relying on the boundaries set out in this Act.

Outdated institutional reference in Schedule 1. Schedule 1 refers to the “Resource Planning and Development Commission” as the body that may determine part of the land is necessary or convenient for the project. However, sections 4 and 5 of the Act were amended in 2009 to refer to the Tasmanian Planning Commission. The Schedule was not amended. A literal reading suggests that only the Resource Planning and Development Commission can make the determination, but that body no longer exists. The sensible interpretation is that the Tasmanian Planning Commission, as the successor body, holds that power under section 4. But the discrepancy could be exploited in litigation to argue that no determination can validly be made, thereby excluding the exception in Schedule 1 and keeping the full 171 hectares as the conservation area.

The project of State significance may be defunct. The Act refers to the project of State significance referred to in the State Policies and Projects (Project of State Significance) Order 2006. That Order identified a specific development proposal. If the project has been abandoned, withdrawn, or otherwise not pursued, the integrated assessment may never occur, and the Commission may never make a determination under section 4. In that case, the Schedule 1 exception becomes inoperative because there is no project in relation to which the Commission can determine land as necessary or convenient. The conservation area would remain the full 171 hectares, but only if section 3 has commenced. If the project is defunct, the commencement trigger under section 2(2)(a) might also never be satisfied if the Commission never submits a report recommending the project not proceed (because there is no live assessment to report on). The Act could remain in a state of indefinite partial commencement.

The paramountcy clause has limits. Section 3(2) gives the declaration effect “notwithstanding any other Act”. This is a powerful override, but it only applies to the declaration itself. The other provisions of the Act (sections 4, 5, 6) do not have a similar override. Moreover, the paramountcy does not extend to Commonwealth laws by operation of section 109 of the Constitution. If a Commonwealth Act, such as the Environment Protection and Biodiversity Conservation Act 1999, applies to the land, the Commonwealth Act would prevail to the extent of inconsistency.

The Schedule 1 exception is self-referential. The description of the land in Schedule 1 is “except for that part of that land that may be determined by the Resource Planning and Development Commission as being necessary or convenient for the project ... to proceed.” This means the boundary of the conservation area is not fixed at the date of the Act; it depends on a future determination. Until that determination is made (if ever), the full 171 hectares is the conservation area. But once a determination is made, the boundary changes automatically. This can create uncertainty for anyone relying on the conservation area boundary for planning or management purposes. The Central Plan Register plan (Plan 7395) may not reflect the exclusion because the exclusion is not recorded on the plan; it is a legal exception in the Schedule.

Compliance depends on whether section 3 has commenced. If it has not, the Act’s primary declaration is not in force, and the pre-existing definition of the Ralphs Bay Conservation Area under the Regional Forest Agreement (Land Classification) Act 1998 and any other applicable declarations apply. Practitioners must first determine whether either trigger event in section 2(2) has occurred. This may involve obtaining a copy of any report submitted by the Tasmanian Planning Commission under section 26(1) of the State Policies and Projects Act 1993 or any Governor’s order under section 26(6) of that Act. If neither event has occurred, the Act cannot be relied upon to define the conservation area boundary.

If section 3 has commenced, compliance requires treating the land specified in Schedule 1 (subject to any Commission determination) as the Ralphs Bay Conservation Area. Land managers should obtain a copy of Plan 7395 from the Central Plan Register to identify the full 171-hectare footprint. They must then check whether the Tasmanian Planning Commission has made a determination under section 4 that part of that land is necessary or convenient for the project of State significance. If such a determination exists, the determined area is excluded from the conservation area for the purposes of the declaration. The land manager must maintain records of the determination and ensure that any use or development of the excluded area complies with other applicable laws, not this Act.

For proponents of the project of State significance, compliance involves engaging with the Tasmanian Planning Commission’s integrated assessment process. The proponent may request that the Commission exercise its power under section 4 to determine that part of the Schedule 1 land is necessary or convenient for the project. The proponent should also be aware that the Minister has the power under section 5 to give a further written direction to initiate or continue the assessment. The proponent should monitor whether any such direction is given.

For government departments, particularly the Department of Primary Industries and Water (as the original administering department under section 6), compliance means maintaining accurate records of the land’s status, advising the Minister on any determinations or directions, and coordinating with the Tasmanian Planning Commission. If an order is made under section 4 of the Administrative Arrangements Act 1990 reassigning administration, the responsible department must ensure a smooth transition.

For lawyers advising clients on land transactions or development applications in the area, due diligence must include: (a) confirming whether section 3 has commenced; (b) if commenced, obtaining the current Plan 7395; (c) checking if the Tasmanian Planning Commission has made a determination under section 4; (d) verifying whether the Minister has given a direction under section 5; and (e) considering the potential inconsistency between Schedule 1 (referring to the Resource Planning and Development Commission) and the amended sections (referring to the Tasmanian Planning Commission). The lawyer should also advise that the Act’s paramountcy clause only applies to the declaration, not to other legal requirements such as those under Commonwealth law.