Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 3) (Cth)

Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 3)1

Statutory Rules 2004 No. 602

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Great Barrier Reef Marine Park Act 1975.

Dated 8 April 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

DAVID KEMP

Minister for the Environment and Heritage

Contents

1Name of Regulations

These Regulations are the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 3).

2Commencement

These Regulations commence as follows:

1. (a)

   on the date of their notification in the Gazette — regulations 1 to 3 and Schedule 1;

2. (b)

   on the commencement of Schedule 1 to the Great Barrier Reef Marine Park Amendment Act 2004 — Schedule 2;

3. (c)

   on 2 July 2004 — regulation 4 and Schedule 3.

3Amendment of Great Barrier Reef Marine Park Regulations 1983

Schedules 1 and 2 amend the Great Barrier Reef Marine Park Regulations 1983.

4Amendment of Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4)

Schedule 3 amends the Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4).

Schedule 1Amendments commencing on gazettal

(regulation 3)

[1]Subregulation 4 (1), after definition of Gumoo Woojabuddee Section

insert

Hinchinbrook Planning Area has the meaning given by the Hinchinbrook Plan of Management 2004.

[2]After subregulation 4 (2)

insert

1. (2A)

   In these Regulations, a reference to the Hinchinbrook Plan of Management 2004 is a reference to that Plan as in force at the commencement of this subregulation.

[3]Paragraph 24 (b)

substitute

1. (b)

   to do something in the Whitsunday Planning Area that is permitted by a relevant permission in force immediately before 27 October 1999, but is not permitted by a provision of the Whitsundays Plan of Management 1998 together with regulation 117; or

2. (c)

   to do something in the Hinchinbrook Planning Area that is permitted by a relevant permission in force immediately before the day on which regulation 117C commences, but is not permitted by a provision of the Hinchinbrook Plan of Management 2004 together with regulation 117D.

[4]After subregulation 25 (4)

insert

1. (4A)

   The holder of an existing permission may apply to the Authority to do a thing in the Hinchinbrook Planning Area if:

   1. (a)

      but for clause 2.5, 2.6, 2.9 or 2.18 of the Hinchinbrook Plan of Management 2004 and regulation 117D, the existing permission would authorise the holder to do the thing in the Area; and

   2. (b)

      the existing permission authorises the holder to do the thing in the Area on more than 50 days in each year.

2. (4B)

   In subregulation (4A):

existing permission has the same meaning as in the Hinchinbrook Plan of Management 2004.

[5]Subregulation 25 (5)

omit

subregulation (1) or (3)

insert

subregulation (1), (3) or (4A)

[6]Subregulation 25 (6)

omit

The application:

insert

An application for an authorisation:

[7]Subregulation 28 (3)

substitute

1. (3)

   Except in special circumstances, the Authority must not grant an authorisation applied for:

   1. (a)

      in the case of something to be done in the Cairns Planning Area — on or after 1 July 1999; or

   2. (b)

      in the case of something to be done in the Whitsunday Planning Area — on or after 27 October 1999; or

   3. (c)

      in the case of something to be done in the Hinchinbrook Planning Area — 3 months or less after the eligibility process commencement day (within the meaning given in the Hinchinbrook Plan of Management 2004).

[8]Subregulation 112 (1)

omit

the day on which this regulation commences.

insert

7 June 2002.

[9]Subregulation 112 (2)

omit

the day specified by the Authority in a notice published in the Gazette for the purposes of this subregulation.

insert

17 October 2002.

[10]Subregulation 113 (3)

substitute

1. (3)

   It is a defence to a prosecution under subregulation (1) if the person is acting:

   1. (a)

      in accordance with:

      1. (i)

         an authorisation; or

      2. (ii)

         a relevant permission granted on or after 27 October 1999; or

   2. (b)

      as permitted by subregulation 29 (3).

[11]Regulation 116

omit

the day on which this regulation commences.

insert

7 June 2002.

[12]Subregulation 117 (3)

substitute

1. (3)

   It is a defence to a prosecution under subregulation (1) if the person is acting:

   1. (a)

      in accordance with:

      1. (i)

         an authorisation; or

      2. (ii)

         a new permission (within the meaning given in the Plan); or

   2. (b)

      as permitted by subregulation 29 (3).

[13]After Part 12

insert

Part 12AHinchinbrook Plan of Management 2004 — enforcement provisions

117BDefinition

In this Part:

Plan means the Hinchinbrook Plan of Management 2004.

117CDate of effect of enforcement provisions of Plan

Part 2 of the Plan takes effect on the day on which this regulation commences.

117DOffences

1. (1)

   A person, other than the Authority acting in accordance with its functions and powers, must not contravene a provision of Part 2 of the Plan.

Penalty: 50 penalty units.

1. (2)

   An offence against subregulation (1) (other than an offence constituted by a contravention of subclause 2.15 (1) of the Plan) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   It is a defence to a prosecution for an offence against subregulation (1) that the person is acting:

   1. (a)

      in accordance with:

      1. (i)

         an authorisation; or

      2. (ii)

         a new permission granted after the eligibility process commencement day; or

   2. (b)

      as permitted by subregulation 29 (3).

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (3) (see section 13.3 of the Criminal Code).

1. (4)

   For subparagraph (3) (a) (ii), new permission and eligibility process commencement day have the respective meanings given by the Plan.

[14]Schedule 10, after item 10

insert

11 subregulation 117D (1) (Offences — Hinchinbrook Plan of Management enforcement provisions) 3

Schedule 2Amendments commencing on commencement of Schedule 1 to Great Barrier Reef Marine Park Amendment Act 2004

(regulation 3)

[1]Paragraphs 10 (4) (k) and 18 (4) (k)

substitute

1. (k)

   any charge, collected amount or penalty amount that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

2. (ka)

   any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

[2]Paragraph 27 (c)

substitute

1. (c)

   any charge, collected amount or penalty amount that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

2. (d)

   any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force).

[3]Paragraph 32D (5) (k)

substitute

1. (k)

   any charge, collected amount or penalty amount that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

2. (ka)

   any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

[4]Paragraph 34 (l)

substitute

1. (l)

   any charge, collected amount or penalty amount that is overdue for payment by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

2. (la)

   any late payment penalty that is payable by the applicant as the holder of a chargeable permission (whether or not the permission is in force); and

[5]Paragraphs 52 (3) (a) and (b)

substitute

1. (a)

   any charge, collected amount or penalty amount that is overdue for payment by the proposed transferee, or the proposed transferor, as the holder of a chargeable permission (whether or not the permission is in force); and

2. (b)

   any late payment penalty that is payable by the proposed transferee, or the proposed transferor, as the holder of a chargeable permission (whether or not the permission is in force); and

[6]Regulation 57

substitute

57Suspension of permission — non-compliance with Part 9

A permission that is a chargeable permission may be suspended by the Authority if:

1. (a)

   at the end of the month in which charge is payable in relation to the permission by the holder of the permission, the charge has not been fully paid; or

2. (b)

   charge that is payable in relation to the permission by a visitor has not been collected by the holder of the permission; or

3. (c)

   at the end of the month in which a collected amount is payable in relation to the permission, the collected amount has not been fully paid; or

4. (d)

   a penalty amount that is payable in relation to the permission has not been paid in accordance with subsection 39FA (3) of the Act; or

5. (e)

   an amount of late payment penalty that is payable in relation to the permission has not been paid; or

6. (f)

   at the end of the month in which a return in relation to the permission is to be given to the Authority under subregulation 107 (1) or (2), the return has not been given to the Authority.

[7]Subregulation 74 (1), definition of visitor

substitute

visitor means a person to whom a service is provided under a chargeable permission, but who is not:

1. (a)

   a transfer passenger; or

2. (b)

   a person of one of the following kinds, in respect of whom the holder of the permission is not paid a fee for the provision of the service:

   1. (i)

      a child aged less than 4 years;

   2. (ii)

      a person visiting the Marine Park as a beneficiary of a charity registered under a law of the Commonwealth, a State or a Territory;

   3. (iii)

      a member of a school supervised school group;

   4. (iv)

      a person engaged in the tourism industry who is visiting the Marine Park for trade familiarisation or who is accompanying visitors to the Marine Park as driver, guide, instructor, or for a similar reason;

   5. (v)

      a person engaged in the newspaper, broadcasting or other information media who is visiting the Marine Park for the purpose of reporting on a matter in the Marine Park.

[8]Paragraphs 76 (3) (b) and (c)

substitute

1. (b)

   what percentage of visitors who use, or will use, the service are visitors who are liable to pay the standard tourist program charge (within the meaning given by Subdivision 1 of Division 2); and

2. (c)

   how the applicant proposes to find out whether visitors who use the service are visitors who have paid the standard tourist program charge.

[9]Paragraph 77 (2) (b)

omit

regulation 118

insert

regulation 120

[10]Regulation 79

omit

[11]Regulations 82 and 83

substitute

82Payment of standard tourist program charge — general rule

1. (1)

   Subject to regulations 83, 85, 86 and 87, if a tourist program provided under a chargeable permission is, or includes, a primary service, the standard tourist program charge for a charge year is payable by each visitor who takes part in the program during the charge year.

2. (2)

   The charge is payable by a visitor for each day, or part of a day, that the visitor takes part in the program.

83Visitors who do not have to pay charge

1. (1)

   Charge is not payable under this Subdivision by a visitor who takes part in a tourist program on a day if:

   1. (a)

      on the same day, the visitor has used a service for which the full amount of the standard tourist program charge is payable by the visitor; and

   2. (b)

      the visitor, or the holder of the chargeable permission under which the service mentioned in paragraph (a) was provided, has evidence (in the form of a dated receipt or dated ticket) that the visitor has paid the charge.

2. (2)

   Charge is not payable under this Subdivision by a visitor who takes part in a tourist program provided under a chargeable permission on a day if the visitor only takes part in the program on the day by:

   1. (a)

      using any non-motorised beach equipment for which the holder of the permission is liable to pay charge under regulation 90; or

   2. (b)

      using a dinghy for which the holder of the permission is liable to pay charge under regulation 91; or

   3. (c)

      using any motorised water sports equipment for which the holder of the permission is liable to pay charge under regulation 92; or

   4. (d)

      participating in 1 or more excursions to which regulation 93 or 94 applies; or

   5. (e)

      being accommodated in a floating hotel, the operation of which the holder of the permission is liable to pay charge for under regulation 96; or

   6. (f)

      berthing a vessel at a marina, the construction or operation of which the holder of the permission is liable to pay charge for under regulation 97; or

   7. (g)

      participating in 1 or more excursions to an underwater observatory, the operation of which the holder of the permission is liable to pay charge for under regulation 98.

[12]Subregulation 84 (2), except the penalty

substitute

1. (2)

   A person must not use as evidence for subregulation 83 (1) a receipt or ticket that the person knows, or has reason to believe, has been altered (including altered by adding a date).

[13]Paragraph 84 (3) (b)

omit

regulation 83.

insert

subregulation 83 (1).

[14]Regulations 85 and 86

omit

for a visitor who participates

insert

by a visitor who takes part

[15]Subregulations 87 (2) and (3)

omit

for a visitor who participates

insert

by a visitor who takes part

[16]Regulation 88

substitute

88When charge is payable

Charge payable under this Subdivision by a visitor who takes part in a tourist program provided under a chargeable permission is payable by the visitor to the holder of the permission on behalf of the Commonwealth at the following time:

1. (a)

   for charge in respect of a tour to which regulation 85 applies — on the first day that the visitor takes part in the tour;

2. (b)

   for charge in respect of any other tourist program — on each day that the visitor takes part in the program.

[17]Regulation 89

omit

[18]Subregulations 90 (3), 91 (4) and 92 (2)

after

holder of the permission

insert

to the Authority on behalf of the Commonwealth

[19]Regulations 93 and 94

substitute

93Semi-submersible and glass-bottomed boats charges

1. (1)

   Subject to subregulations (2) and (3), the charge payable by each visitor who participates in a semi-submersible, or glass-bottomed, boat excursion provided under a chargeable permission is $0.40 for each excursion.

2. (2)

   If a visitor participates in more than 1 excursion on the same day and all the excursions are provided under the same permission, charge is only payable by the visitor for the first excursion.

3. (3)

   Charge is not payable by a visitor for an excursion if:

   1. (a)

      the excursion is permitted under a permission to which regulation 82 applies; and

   2. (b)

      the visitor is liable to pay charge in accordance with that regulation.

4. (4)

   Charge for an excursion is payable by a visitor to the holder of the permission on behalf of the Commonwealth on the day that the visitor participates in the excursion.

94Sight-seeing aircraft charges

1. (1)

   Subject to subregulations (2) and (3), the charge payable by each visitor who participates in an aircraft excursion in or into the Marine Park, that is provided under a chargeable permission for the sole purpose of sight-seeing, is $0.40 for each excursion.

2. (2)

   If a visitor participates in more than 1 excursion on the same day and all the excursions are provided under the same permission, charge is only payable by the visitor for the first excursion.

3. (3)

   Charge is not payable by a visitor for an excursion if:

   1. (a)

      the excursion is permitted under a permission to which regulation 82 applies; and

   2. (b)

      the visitor is liable to pay charge in accordance with that regulation.

4. (4)

   Charge for an excursion is payable by a visitor to the holder of the permission on behalf of the Commonwealth on the day that the visitor participates in the excursion.

[20]Subregulation 95 (1)

substitute

1. (1)

   The charge payable by the holder of a chargeable permission for the operation of a pontoon is:

   1. (a)

      if the horizontal surface area of the pontoon is 40 square metres or less — $90.00 per quarter; or

   2. (b)

      if the horizontal surface of the pontoon is more than 40 square metres — $180.00 per quarter.

[21]Subregulation 95 (2)

omit

[22]Subregulation 95 (3)

after

holder of the permission

insert

to the Authority on behalf of the Commonwealth

[23]Subregulation 96 (1)

substitute

1. (1)

   The charge payable by the holder of a chargeable permission for the operation of a floating hotel is $280.00 per quarter.

[24]Subregulation 96 (3)

after

holder of the permission

insert

to the Authority on behalf of the Commonwealth

[25]Subregulation 97 (2)

substitute

1. (2)

   The charge payable by the holder of a chargeable permission for the operation of a marina is $380.00 per quarter.

[26]Subregulation 97 (3)

after

holder of the permission

insert

to the Authority on behalf of the Commonwealth

[27]Regulations 98 and 99

substitute

98Underwater observatory charges

1. (1)

   The charge payable by the holder of a chargeable permission for the operation of an underwater observatory that is not attached to a pontoon is $130.00 per quarter.

2. (2)

   Charge is payable by the holder of the permission to the Authority on behalf of the Commonwealth in April, July, October and January in respect of the exercise of the permission in the preceding quarter.

99Lady Elliott Island charges

1. (1)

   Subject to subregulation (2), the charge payable by each visitor who participates in a tourist program that is provided under a chargeable permission and involves visiting Lady Elliott Island is $2.00 for each day, or part of a day, that the visitor visits the island.

2. (2)

   Charge is not payable by a visitor for a day that the visitor visits the island if:

   1. (a)

      the visit is permitted under a permission to which regulation 82 applies; and

   2. (b)

      the visitor is liable to pay charge in accordance with that regulation.

3. (3)

   Charge for each day that a visitor visits the island is payable by the visitor to the holder of the permission on behalf of the Commonwealth:

   1. (a)

      if the visit takes no more than 1 day — on the day of the visit; or

   2. (b)

      if the visit takes more than 1 day — on the first day of the visit.

[28]Subregulation 100 (3)

after

the holder of the permission

insert

to the Authority on behalf of the Commonwealth

[29]Regulation 101

substitute

101Vessel chartering charges

1. (1)

   If the charter of a vessel is provided under a chargeable permission for a commercial purpose unrelated to tourism, the charge of $2.00 is payable by each visitor (other than a crew member) who is carried on the chartered vessel.

2. (2)

   Charge for the charter of a vessel is payable by a visitor to the holder of the permission on behalf of the Commonwealth on the first day that the visitor is carried on the vessel.

[30]Subregulations 102 (2) and 103 (2)

after

holder of the permission

insert

to the Authority on behalf of the Commonwealth

[31]After regulation 103

insert

Subdivision 3Payment and overpayment

103AWhen collected amounts are payable

A collected amount in respect of a chargeable permission is payable by the holder of the permission to the Authority on behalf of the Commonwealth in whichever of April, July, October or January is the month after the quarter in which the amount is collected.

Note The holder of a chargeable permission who does not collect charge as required by subsection 39FA (1) of the Act is liable to pay a penalty amount equal to the amount of the charge. The penalty amount is due for payment at the time when, if the charge had become a collected amount, the holder would have had to pay the collected amount to the Authority — see subsections 39FA (2) and (3) of the Act.

[32]Regulation 104, heading

substitute

104Payment on termination or transfer of permission

[33]Subregulation 104 (1)

substitute

1. (1)

   If a chargeable permission ceases to be in force, the following is payable by the holder of the permission to the Authority on behalf of the Commonwealth within 30 days after the day the permission ceases:

   1. (a)

      if, under this Part, the holder is liable to pay charge in relation to the permission — charge in respect of the exercise of the permission since the end of the preceding quarter until the end of the day the permission ceases;

   2. (b)

      if, under this Part, a visitor is liable to pay charge in relation to the permission — collected amounts that the holder has collected since the end of the preceding quarter until the end of the day the permission ceases;

   3. (c)

      any amount of late payment penalty that, under section 39G of the Act, the holder is liable to pay in relation to the permission, including any amount that accrues after the day the permission ceases.

[34]Subregulation 104 (3)

substitute

1. (3)

   If a holder’s interest in a chargeable permission is transferred to another person, the following is payable by the holder to the Authority on behalf of the Commonwealth on the day the transfer occurs:

   1. (a)

      if, under this Part, the holder is liable to pay charge in relation to the permission — charge in respect of the exercise of the permission since the end of the preceding quarter until the end of the day of transfer;

   2. (b)

      if, under this Part, a visitor is liable to pay charge in relation to the permission — collected amounts that the holder has collected since the end of the preceding quarter until the end of the day of transfer;

   3. (c)

      any amount of late payment penalty that, under section 39G of the Act, the holder is liable to pay in relation to the permission.

[35]Subregulation 104 (4)

omit

subregulation (3),

insert

paragraph (3) (a),

[36]Subregulation 104 (4)

omit

subregulation.

insert

paragraph.

[37]Subregulation 104 (4), at the foot

insert

Note The holder of a chargeable permission who does not collect charge as required by subsection 39FA (1) of the Act is liable to pay a penalty amount equal to the amount of the charge. The penalty amount is due for payment at the time when, if the charge had become a collected amount, the holder would have had to pay the collected amount to the Authority — see subsections 39FA (2) and (3) of the Act.

[38]Regulation 105, heading

substitute

105Overpayment of charge by holder of chargeable permission

[39]Subregulation 106 (1), except the penalty

substitute

1. (1)

   The holder of a chargeable permission referred to in Subdivision 1 of Division 2 or regulation 93, 94, 95, 96, 97, 98, 99 or 101 must record, each day on which the permission is used by the holder, and whether or not charge is incurred or collected, the information that the Authority requires the holder to keep for the purpose of ascertaining, for a quarter:

   1. (a)

      the charge payable by the holder for the quarter; and

   2. (b)

      the charge that the holder was required to collect during the quarter.

[40]After regulation 107

insert in Part 9

107ACustody and banking of collected amounts

1. (1)

   The holder of a chargeable permission may deposit a collected amount into an account, maintained by the holder with a bank, until the amount is due for payment to the Authority on behalf of the Commonwealth.

2. (2)

   If a collected amount is deposited in accordance with subregulation (1), the holder is entitled to any interest derived from the deposit of the amount.

3. (3)

   In this regulation:

bank means:

1. (a)

   a person who carries on the business of banking, either in Australia or outside Australia; or

2. (b)

   any other institution:

   1. (i)

      that carries on a business in Australia that consists of or includes taking money on deposit; and

   2. (ii)

      the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.

[41]Further amendments

Provision	omit	insert
Subregulation 90 (1)	holder of a permission	holder of a chargeable permission
Subregulation 90 (2)	permission holder	holder of the permission
Subregulation 91 (1)	holder of a permission	holder of a chargeable permission
Paragraph 91 (2) (a)	permission holder	holder of the permission
Subregulation 92 (1)	holder of a permission	holder of a chargeable permission
Subregulations 97 (1), 100 (1), 102 (1) and 103 (1)	holder of a permission	holder of a chargeable permission
Regulation 105	a permission holder	the holder of a chargeable permission
Subregulation 106 (2)	A permission holder	The holder of a chargeable permission
Subregulation 106 (3)	permission holder	holder of the permission
Paragraph 106 (3) (a)	permission holder’s	holder’s
Subregulation 106 (4)	permission holder	holder of the permission
Subregulation 107 (1)	A permission holder	The holder of a chargeable permission
Subregulation 107 (2)	holder of a permission	holder of a chargeable permission

Schedule 3Amendments of Great Barrier Reef Marine Park Amendment Regulations 2001 (No. 4)

(regulation 4)

[1]Schedule 2, items [1] to [4], references to subregulations or subparagraphs of regulation 45A

Omit the number, insert the number of the provision after renumbering by Schedule 2 to the Great Barrier Reef Marine Park Amendment Regulations 2004 (No. 2).

[2]Schedule 2, item [4], inserted subregulation numbered 45A (4)

Omit ‘74 (3)’, insert its number after renumbering.

Notes

1. These Regulations amend (in Schedules 1 and 2) Statutory Rules 1983 No. 262, as amended by 1985 No. 169; 1986 No. 1; 1987 No. 247; 1988 No. 185; 1989 Nos. 269, 367 and 368; 1990 Nos. 9 and 35; 1991 Nos. 63, 257 and 296; 1992 No. 69; 1993 Nos. 188, 206 and 266; 1996 No. 277; 1997 Nos. 96 and 326; 1999 No. 252; 2000 No. 5; Act No. 137, 2000; Statutory Rules 2001 Nos. 12, 178, 197 and 307 (as amended by 2003 No. 293); 2002 Nos. 8, 72, 73, 112, 177, 209 (disallowed by the Senate on 23 October 2002), 224 and 338; 2003 Nos. 20, 200 and 293; 2004 Nos. 15 and 39.

These Regulations also amend (in Schedule 3) Statutory Rules 2001 No. 307, as amended by 2003 No. 293.

2. Notified in the Commonwealth of Australia Gazette on 15 April 2004.