EXPLANATORY STATEMENT
STATUTORY RULES NO.66
WORLD HERITAGE (WESTERN TASMANIA WILDERNESS) REGULATIONS (AMENDMENT)
(Issued under the authority of the Minister of State for Home Affairs and Environment
Sub-section 69(1) of the National Parks and Wildlife Conservation Act 1975 provides that the Governor-General may make regulations for and in relation to giving effect to an agreement specified in the Schedule to that Act. Among the agreements specified in the Schedule is the “Convention concerning the protection of the world cultural and natural heritage adopted on 16 November 1972 by the General Conference of the United Nations Educational, Scientific and Cultural Organisation at its seventeenth session held at Paris.”
The World Heritage (Western Tasmania Wilderness) Regulations (Statutory Rules 1983 No. 31, made on 30 March 1983) enable Australia to give effect to its obligations under the Convention.
The purpose of the World Heritage (Western Tasmania Wilderness) Regulations (Amendment) is to amend the World Heritage (Western Tasmania Wilderness) Regulations by changing the provision with respect to the offence in sub-regulation 5(3) of the principal Regulations. That sub-regulation provides -
“(3) Where, within an area to which these Regulations apply, a person does an act referred to in sub-regulation (1) without the consent of the Minister -
(a) the person in whom the area in which the act is done or the relevant part of that area is vested; or
(b) if that person is not the occupier of that area or of the relevant part of that area - the person who is the occupier of that area or the relevant part of that area, as the case may be,
is guilty of an offence and is punishable upon conviction by a fine not exceeding $5,000 unless he proves that he took reasonable steps to prevent the doing of the act.”
The amending Regulations replace sub-regulation 5(3) with two sub-regulations which specify an offence that is the same as that in the replaced sub-regulation except that the onus of proving one element of the offence is placed on the prosecution instead of the defence.
Overview
The World Heritage (Western Tasmania Wilderness) Regulations (Amendment) 2004 were introduced to address a gap in the enforcement provisions of the original regulations made under the National Parks and Wildlife Conservation Act 1975. Enacted by the Parliament of Australia, these amending regulations aim to enhance the regulatory framework concerning the protection of Western Tasmania's wilderness areas, which are recognised as World Heritage sites under the UNESCO World Heritage Convention. The primary policy objective is to ensure that the regulations more effectively uphold the integrity of these heritage areas by clarifying the legal responsibilities and liabilities associated with unauthorised activities within these protected zones. This adjustment in the burden of proof aims to strengthen the enforcement mechanisms and provide a more robust legal deterrent against non-compliance within these environmentally significant regions.
Scope and Application
The World Heritage (Western Tasmania Wilderness) Regulations (Amendment) applies to individuals and entities engaged in activities within the specified area in Western Tasmania, which is designated as a World Heritage site. The regulations are enacted to ensure compliance with Australia's obligations under the Convention concerning the protection of the world cultural and natural heritage, adopted by UNESCO in 1972. The jurisdictional reach of these regulations extends to the Commonwealth of Australia, with the primary focus on managing and protecting the Western Tasmania Wilderness. The amendment specifically alters the provisions concerning offences related to unauthorised activities within the designated area, shifting the onus of proof for one element of the offence from the defendant to the prosecution. These regulations do not explicitly mention exclusions or exemptions, but the scope is inherently limited to the designated World Heritage area in Western Tasmania. The application and interpretation of these regulations may be further defined through subordinate instruments, providing additional guidelines and specifics on enforcement and compliance.
Key Provisions
The World Heritage (Western Tasmania Wilderness) Regulations (Amendment) (C2004L06415) amends the existing World Heritage (Western Tasmania Wilderness) Regulations by modifying the provisions related to offences in sub-regulation 5(3) of the principal regulations. Under the original sub-regulation 5(3), a person was considered guilty of an offence if they performed an act within a specified area without the Minister’s consent, and the relevant land was vested in them or they were the occupier of the land. The defence could negate liability by proving they took reasonable steps to prevent the act, which placed the onus of proof on the accused.
The amended regulations introduce a change by placing the onus of proving one element of the offence on the prosecution instead of the defence. This means that while the accused must still prove that they took reasonable steps to prevent the prohibited act, the prosecution now bears the responsibility of proving the other elements of the offence. This shift in onus of proof is intended to ensure that the burden of disproving the offence rests more squarely on the shoulders of those enforcing the law.
The obligations imposed by these regulations primarily concern the actions of individuals within the specified area. Those who own or occupy land in the area must ensure that any acts that could breach the regulations are carried out with the necessary consent or that adequate preventative measures are in place. Failure to comply with these obligations can lead to significant legal consequences. The regulations are designed to protect the heritage values of Western Tasmania and ensure that activities within the area do not compromise the integrity of the World Heritage site.
In terms of offences and penalties, the amendment does not introduce new types of offences but rather changes the burden of proof. Under the amended regulations, individuals can still be found guilty of an offence if they perform a prohibited act without the Minister’s consent. However, the prosecution must now prove certain elements of the offence, which can make it more difficult to secure a conviction. The maximum penalty for an offence remains a fine not exceeding $5,000, which is unchanged from the original regulations. This ensures that the sanctions for non-compliance remain significant enough to deter violations while adjusting the legal framework to better align with principles of fairness in criminal proceedings.