EXPLANATORY STATEMENT
Issued by the Authority of the Minister for the Environment and Energy
Antarctic Treaty (Environment Protection) Act 1980 (Cth)
Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016
Subsection 8A(1) of the Antarctic Treaty (Environment Protection) Act 1980 (the Act) provides that the Governor-General may, by Proclamation, declare an historic site or monument specified in the Proclamation to be an historic site or an historic monument. However, subsection 8A(2) of the Act provides that a site or monument may not be declared to be an historic site or an historic monument unless the Antarctic Treaty Consultative Parties have approved the listing of the site or monument as an historic site or an historic monument under Article 8 of the Annex V to the Madrid Protocol.
Subsection 8A(3) of the Act provides that the Governor General may, by Proclamation, vary or revoke a Proclamation made under subsection 8A(1) in respect of a site or monument if the Antarctic Treaty Consultative Parties have amended or revoked the listing of the site or monument as an historic site or historic monument.
Australia is an Antarctic Treaty Consultative Party under the Antarctic Treaty and the Proclamation seeks to give effect to measures agreed to by Antarctic Treaty Consultative Parties under the Antarctic Treaty in domestic law.
The purpose of the Proclamation is to amend the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007 (the Principal Proclamation) to declare two additional Antarctic Historic Sites and Monuments (HSMs) and to vary the description of one existing HSM declared under the Principal Proclamation. The additions and variation were adopted at the 38th and 39th Antarctic Treaty Consultative Meetings (ATCM) in 2015 and 2016.
The Proclamation declares the following two new HSMs:
Lame Dog Hut at the Bulgarian Base St. Kliment Ohridski, Livingston Island (HSM No. 91); and
Oversnow heavy tractor “Kharkovchanka” that was used in Antarctica from 1959 to 2010 (HSM No. 92).
The Proclamation varies the description of the following existing HSM declared under the Principal Proclamation:
Wooden pole and cairn (I), and wooden plaque and cairn (II), both located at Penguins Bay, south coast of Seymour Island (Marambio), James Ross Archipelago (HSM No. 60).
Subsection 19(1B) of the Act provides that a person is guilty of an offence if the person does an act and the action causes any damage to or in an historic site, or destroys, causes damage to or the removal of an historic monument.
The Office of Best Practice Regulation has indicated that a Regulatory Impact Assessment is not required for the Proclamation as it is likely to have minor impacts on business (OBPR ID: 21151).
Prior to the 38th and 39th ATCMs the Australian Government conducted consultations with Antarctic scientists, tourism operators and non-government organisations on proposals being taken to the ATCM, including new HSMs and variations to descriptions of HSMs.
The Proclamation is a legislative instrument for the purposes of the Legislation Act 2003 and commences on the day after it is registered on the Federal Register of Legislation.
The details of the Proclamation are included in the Attachment.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Australian legislation implements components of the Antarctic Treaty system into Australian law, including the Antarctic Treaty (Environment Protection) Act 1980, giving effect to the Protocol on Environmental Protection to the Antarctic Treaty, which sets out environmental protection obligations. Annex V to the Protocol provides a legal framework for the establishment of historic sites and monuments within Antarctica. At each year’s Antarctic Treaty Consultative Meeting new historic sites and monuments may be nominated and existing descriptions for previously adopted sites and monuments may be updated. This Legislative Instrument reflects those changes that have been made in 2015 and 2016.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Dr. Nick Gales
Director
Australian Antarctic Division
November 2016
ATTACHMENT
Details of the Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016
Section 1 – Name
This section provides that the title of the instrument is the Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016.
Section 2 – Commencement
This section provides for the instrument to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the instrument is made under section 8A of the Antarctic Treaty (Environment Protection) Act 1980.
Section 4 – Schedules
This section provides that that Schedule 1 amends the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007 (the Principal Proclamation) as set out in the Schedule.
Schedule 1
Item 1 varies the description of Historic Site and Monument No. 60, which was varied at the 39th Antarctic Treaty Consultative Meeting (ATCM) in 2016.
Item 2 lists and describes two new Historic Sites and Monuments adopted at the 38th ATCM in 2015.
Overview
The Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016 was enacted to amend the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007, updating the list of historic sites and monuments in Antarctica. This amendment was made in response to decisions taken by the Antarctic Treaty Consultative Parties at the 38th and 39th Antarctic Treaty Consultative Meetings held in 2015 and 2016 respectively. The objective of the proclamation is to align Australia's domestic law with the international obligations under the Antarctic Treaty and the Protocol on Environmental Protection, specifically concerning the protection and management of historic sites and monuments. The proclamation was issued under the authority of the Antarctic Treaty (Environment Protection) Act 1980, reflecting the need for Australia to give effect to measures agreed upon by Antarctic Treaty Consultative Parties within its domestic legal framework. This ensures that Australia upholds its commitment to preserving the Antarctic environment, including its historical and cultural heritage, in accordance with international agreements.
Scope and Application
The Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016 applies to the declaration, variation, and revocation of historic sites and monuments in Antarctica as agreed upon by the Antarctic Treaty Consultative Parties. It specifically concerns the listing of historic sites and monuments under the Madrid Protocol, which is an international agreement aimed at protecting the Antarctic environment. The Proclamation amends the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007 to incorporate decisions made at the 38th and 39th Antarctic Treaty Consultative Meetings. This includes declaring two new historic sites and monuments and varying the description of an existing one. The changes outlined in the Proclamation are legally binding and must be approved by the Antarctic Treaty Consultative Parties before they can be implemented in Australian law. The geographic reach of the Act is confined to Antarctica, and it does not apply to any other region or territory. The Act does not specify any exclusions, exemptions, or thresholds; however, it does state that the Governor-General may vary or revoke a Proclamation if the Antarctic Treaty Consultative Parties amend or revoke the listing of the site or monument. The Proclamation is a legislative instrument for the purposes of the Legislation Act 2003 and comes into effect upon registration on the Federal Register of Legislation.
Key Provisions
The Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016 amends the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007 by introducing new historic sites and monuments (HSMs) and modifying the description of an existing HSM. According to Section 1, the title of this instrument is the Antarctic Treaty (Environment Protection) Amendment (Historic Sites and Monuments) Proclamation 2016. The Proclamation is made under Section 8A of the Antarctic Treaty (Environment Protection) Act 1980, as mentioned in Section 3, and it commences on the day after it is registered on the Federal Register of Legislation, as stated in Section 2. Schedule 1 of the Proclamation varies the description of Historic Site and Monument No. 60, which was updated at the 39th Antarctic Treaty Consultative Meeting (ATCM) in 2016, and lists and describes two new Historic Sites and Monuments adopted at the 38th ATCM in 2015.
Under this legislation, the Australian Government has an obligation to implement measures agreed upon by the Antarctic Treaty Consultative Parties under the Antarctic Treaty in domestic law. This includes the declaration of historic sites and monuments in Antarctica, as long as such sites and monuments have been approved by the Antarctic Treaty Consultative Parties under Article 8 of the Annex V to the Madrid Protocol. The Governor-General may, by Proclamation, declare a site or monument to be an historic site or an historic monument, provided that the Antarctic Treaty Consultative Parties have approved the listing of the site or monument as an historic site or an historic monument (Section 8A(1) and (2) of the Act). Furthermore, the Governor-General may vary or revoke a Proclamation if the Antarctic Treaty Consultative Parties have amended or revoked the listing of the site or monument as an historic site or historic monument (Section 8A(3) of the Act).
The Act imposes several obligations on parties or entities it governs. Firstly, a person is guilty of an offence if they cause any damage to or destroy an historic site, or damage or remove an historic monument (Section 19(1B) of the Act). Additionally, the Australian Government is required to consult with Antarctic scientists, tourism operators, and non-government organisations on proposals being taken to the ATCM, including new HSMs and variations to descriptions of HSMs, prior to the meetings. This ensures that the Australian Government is aware of the views and concerns of relevant stakeholders before making decisions regarding HSMs.
Breaches of this legislation may result in criminal or civil consequences. For example, an individual who causes damage to or destroys an historic site, or damages or removes an historic monument, may be found guilty of an offence under Section 19(1B) of the Act. The maximum penalty for such an offence is not explicitly stated in the text; however, penalties for similar offences under other Australian environmental legislation can range from fines to imprisonment, depending on the severity of the offence. It is essential for individuals and entities to comply with the requirements of the Antarctic Treaty (Environment Protection) Act 1980 and its associated proclamations to avoid potential penalties and maintain the integrity of Australia's commitment to the Antarctic Treaty system.