South Australia: Marine Parks Act 2007 (SA)

South Australia Marine Parks Act 2007 An Act to provide for a system of marine parks for the State; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of zone 5 Meaning of special purpose area 6 Interaction with other Acts 7 Act binds Crown Part 2—Objects of Act 8 Objects 9 Administration of Act to achieve objects Part 3—Marine parks Division 1—Establishment of marine parks 10 Establishment of marine parks Division 2—Management of marine parks 11 Interpretation 12 Management of marine parks 13 General nature and content of management plans 14 Procedure for making or amending management plans 15 Parliamentary scrutiny 16 Availability and evidence of management plans Division 3—Regulation of activities within marine parks 17 Zones 18 Temporary prohibition or restriction of activities Division 4—Permits 19 Permits for activities 20 Contravention of condition of permit Division 5—Affected statutory authorisations 21 Affected statutory authorisations Part 4—Administration Division 1—Minister 22 Functions and powers of Minister 23 Delegation Division 2—Functions of Parks and Wilderness Council under this Act 29 Functions of Council Division 3—Authorised officers 32 Appointment of authorised officers 33 Identification of authorised officers 34 Powers of authorised officers 35 Hindering etc persons engaged in administration of Act 36 Protection from self-incrimination Part 5—General duty of care 37 General duty of care Part 6—Protection and other orders Division 1—Orders 38 Protection orders 39 Action on non-compliance with protection order 40 Reparation orders 41 Action on non-compliance with a reparation order 42 Reparation authorisations 43 Related matters Division 2—Registration of orders and effect of charges 44 Registration 45 Effect of charge Part 7—Appeals to ERD Court 46 Appeals to ERD Court Part 8—Civil remedies 47 Civil remedies Part 9—Provisions relating to official insignia 48 Interpretation 49 Declaration of logo 50 Protection of official insignia 51 Seizure and forfeiture of goods Part 10—Miscellaneous 52 Native title 54 False or misleading information 55 Continuing offence 56 Offences by bodies corporate 57 Additional orders on conviction 58 General defence 59 Criminal jurisdiction of ERD Court 60 Confidentiality 61 Service 62 Evidentiary provisions 63 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Marine Parks Act 2007. 3—Interpretation (1) In this Act— activity includes the storage or possession of anything (including something in liquid or gaseous form); associate—see subsection (2); authorised officer means a person appointed under Part 4 Division 3; business includes a business not carried on for profit or gain; Chief Executive means the Chief Executive of the Department and includes a person for the time being acting in that position; coastal waters of the State means any part of the sea that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers) Act 1980 of the Commonwealth; condition includes a limitation; contravene includes fail to comply with; Council means the Parks and Wilderness Council established under the National Parks and Wildlife Act 1972; council means a council within the meaning of the Local Government Act 1999; Department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993; general duty of care means the duty under Part 5; harm—see subsection (4); indigenous land use agreement means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act 1993 of the Commonwealth; land includes air above land; management plan means a management plan under Part 3 Division 2; marine park means an area established as a marine park under Part 3 Division 1; permit means a permit under Part 3 Division 4; place includes any land, water, premises or structure; prohibiting or restricting an activity—see subsection (5); protection order means a protection order under Part 6 Division 1; public authority includes a Minister, statutory authority or council; related operational Act means an Act declared by the regulations to be a related operational Act; reparation order means a reparation order under Part 6 Division 1; restrict includes regulate; sea includes land beneath sea and air above sea; special purpose area—see section 5; spouse—a person is the spouse of another if they are legally married; statutory authorisation means an approval, consent, licence, permit or other authorisation or entitlement granted, arising or required under an Act; statutory instrument means— (a) a plan, program or policy; or (b) any other instrument of a prescribed kind, made under an Act; taking action to make good harm—see subsection (6); vehicle includes aircraft; vessel means— (a) a ship, boat or vessel; or (b) an air-cushion vehicle, or other similar craft, used on water; or (c) a surf board, wind surf board, motorised jet ski, water skis or other similar device on which a person rides through water; or (d) a structure that is designed to float in water; waters includes land beneath waters and air above waters; zone—see section 4. (2) For the purposes of this Act, a person is an associate of another if— (a) they are partners; or (b) 1 is a spouse, domestic partner, parent or child of another; or (c) they are both trustees or beneficiaries of the same trust, or 1 is a trustee and the other is a beneficiary of the same trust; or (d) 1 is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or (e) 1 is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5 per cent or more of the share capital of the body corporate or other entity; or (f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or (g) a chain of relationships can be traced between them under any 1 or more of the above paragraphs. (3) For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust. (4) For the purposes of this Act— (a) harm includes— (i) a risk of harm, and future harm; and (ii) anything declared by regulation to be harm to a marine park; and (b) harm need not be permanent but must be more than transient or tenuous in nature. (5) For the purposes of this Act, a reference to prohibiting or restricting an activity within a marine park, or a zone or other area of a marine park, includes a reference to prohibiting or restricting access (including access by aircraft) to the marine park or zone or area. (6) For the purposes of this Act, taking action to make good harm to a marine park includes taking the following action: (a) minimising, managing or containing the harm; (b) remedying the harm; (c) addressing the consequences resulting from the harm; (d) compensating for any loss or adverse impacts arising from the harm. (7) For the purposes of this Act, the Minister may, in assessing the costs of taking action to make good harm to a marine park, apply any assumptions determined by the Minister to be reasonable in the circumstances. 4—Meaning of zone (1) For the purposes of this Act, a zone is an area within a marine park that— (a) has boundaries defined by the management plan for the marine park; and (b) is identified by the management plan as a particular type of zone depending on the degree of protection required within the area. (2) It is intended that the regulations will make provision for the following types of zones: (a) a general managed use zone—being a zone primarily established so that an area may be managed to provide protection for habitats and biodiversity within a marine park, while allowing ecologically sustainable development and use; (b) a habitat protection zone—being a zone primarily established so that an area may be managed to provide protection for habitats and biodiversity within a marine park, while allowing activities and uses that do not harm habitats or the functioning of ecosystems; (c) a sanctuary zone—being a zone primarily established so that an area may be managed to provide protection and conservation for habitats and biodiversity within a marine park, especially by prohibiting the removal or harm of plants, animals or marine products; (d) a restricted access zone—being a zone primarily established so that an area may be managed by limiting access to the area. (3) The regulations may, for the purposes of a zone, apply various prohibitions or restrictions to the different types of zones. (4) The regulations may provide for other matters associated with the establishment or management of a zone (including by regulating other activities or circumstances that may arise by virtue of the creation or existence of a zone). 5—Meaning of special purpose area For the purposes of this Act, a special purpose area is an area within a marine park, identified as a special purpose area and with boundaries defined by the management plan for the marine park, in which specified activities, that would otherwise be prohibited or restricted as a consequence of the zoning of the area, will be permitted under the terms of the management plan. 6—Interaction with other Acts (1) Subject to subsection (2), this Act is in addition to the provisions of any other Act. (2) The prohibitions or restrictions applying within a marine park under this Act will, to the extent prescribed by the regulations, have effect despite the provisions of any other Act. 7—Act binds Crown This Act binds the Crown in right of this State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown. Part 2—Objects of Act 8—Objects (1) The objects of this Act are— (a) to protect and conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive, adequate and representative system of marine parks; and (b) to assist in— (i) the maintenance of ecological processes in the marine environment; and (ii) the adaptation to the impacts of climate change in the marine environment; and (iii) protecting and conserving features of natural or cultural heritage significance; and (iv) allowing ecologically sustainable development and use of marine environments; and (v) providing opportunities for public appreciation, education, understanding and enjoyment of marine environments. (2) For the purposes of this Act, ecologically sustainable development comprises the use, protection, conservation, development and enhancement of the marine environment in a way, and at a rate, that will enable people and communities to provide for their economic, social and physical well‑being and for their health and safety while— (a) sustaining the potential of the marine environment to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life‑supporting capacities and processes of the marine environment; and (c) avoiding, remedying or mitigating any adverse effects of activities on the marine environment. (3) The following principles should be taken into account in connection with achieving ecologically sustainable development for the purposes of this Act: (a) decision‑making processes should effectively integrate both long term and short term economic, environmental, social and equity considerations; (b) if there are threats of serious or irreversible harm to the marine environment, lack of full scientific certainty should not be used as a reason for postponing measures to prevent harm; (c) decision‑making processes should be guided by the need to evaluate carefully the risks of any situation or proposal that may adversely affect the marine environment and to avoid, wherever practicable, causing any serious or irreversible harm to the marine environment; (d) the present generation should ensure that the health, diversity and productivity of the marine environment is maintained or enhanced for the benefit of future generations; (e) a fundamental consideration should be the conservation of biological diversity and ecological integrity; (f) environmental factors should be taken into account when valuing or assessing assets or services, costs associated with protecting or restoring the marine environment should be allocated or shared equitably and in a manner that encourages the responsible use of the marine environment, and people who obtain benefits from the marine environment, or who adversely affect or consume natural resources, should bear an appropriate share of the costs that flow from their activities; (g) if the management of the marine environment requires the taking of remedial action, the first step should, insofar as is reasonably practicable and appropriate, be to encourage those responsible to take such action before resorting to more formal processes and procedures; (h) consideration should be given to Aboriginal heritage, and to the interests of the traditional owners of any land or other natural resources; (i) consideration should be given to other heritage issues, and to the interests of the community in relation to conserving heritage items and places; (j) the involvement of the public in providing information and contributing to processes that improve decision‑making should be encouraged; (k) the responsibility to achieve ecologically sustainable development should be seen as a shared responsibility between the State government, the local government sector, the private sector, and the community more generally. 9—Administration of Act to achieve objects The Minister, the ERD Court and other persons or bodies involved in the administration of this Act, and any other person or body required to consider the operation or application of this Act (whether acting under this Act or another Act), must act consistently with, and seek to further, the objects of this Act. Part 3—Marine parks Division 1—Establishment of marine parks 10—Establishment of marine parks (1) The Governor may, by proclamation made on the recommendation of the Minister— (a) establish a specified area as a marine park; and (b) assign a name to the marine park so established. (2) The Minister must, in formulating a recommendation for the purposes of subsection (1), seek, and have regard to, the advice of the Council. (3) The area to be specified by proclamation as a marine park is to consist of a part of the sea that is within the limits of the State or the coastal waters of the State, and may include land or waters held by, or on behalf of, the Crown within or adjacent to the specified part of the sea. (4) A proclamation under this section— (a) must define the boundaries of the marine park; and (b) may, on the recommendation of the Minister, contain provisions (interim protection orders) that prohibit or restrict activities within the marine park with a view to ensuring that areas in a marine park are not adversely affected prior to the adoption by the Minister of a management plan for the marine park. (5) The Minister must take into account the following matters before making a recommendation under subsection (4)(b)— (a) any management arrangements that are already applying in relation to the area; and (b) any development authorisations that have been given under the Planning, Development and Infrastructure Act 2016 in relation to the area; and (c) any advice received from the Council, and may take into account such other matters as the Minister thinks fit. (6) A person must not contravene an interim protection order contained in a proclamation under this section. Maximum penalty: $100 000 or imprisonment for 2 years. (7) The Minister must, after the Governor has established a marine park under this section, in the manner prescribed by the regulations, give public notice of the making of the relevant proclamation and, in so doing— (a) specify a place or places where copies of the proclamation may be inspected or purchased; and (b) invite submissions from interested persons within a period (of at least 6 weeks) specified by the Minister on the boundaries of the marine park. (8) The Minister must consider any submissions received under subsection (7)(b) and may, after taking into account any matters or advice determined by the Minister to be relevant in the circumstances, recommend to the Governor that the boundaries of the marine park be altered. (9) The Governor may, by subsequent proclamation (whether or not a process under subsection (7) or (8) has been completed)— (a) abolish a marine park established under this section; or (b) on the recommendation of the Minister, alter the boundaries of a marine park established under this section; or (c) alter the name of a marine park established under this section; or (d) on the recommendation of the Minister, vary or revoke an interim protection order contained in a proclamation under this section. (10) The Minister must, in formulating a recommendation for the purposes of paragraphs (b) and (d) of subsection (9), seek, and have regard to, the advice of the Council. (11) Subject to subsection (13), a proclamation must not be made under subsection (9)(a) or (b), by virtue of which an area ceases to be, or ceases to be included in, a marine park, except in accordance with a resolution passed by both Houses of Parliament. (12) Notice of a motion for a resolution under subsection (11) must be given at least 14 sitting days before the motion is passed. (13) Subsection (11) does not apply to a proclamation made on the recommendation of the Minister under subsection (8) within 6 months of the publication of a notice under subsection (7). Division 2—Management of marine parks 11—Interpretation In this Division— (a) a reference to a draft management plan includes a reference to a draft amendment to, or a draft revocation of, a management plan previously made under this Part; and (b) a reference to a management plan includes a reference to an amendment to, or a revocation of, a management plan previously made under this Part; and (c) a reference to an initial management plan for a marine park means the management plan first declared by the Governor to be an authorised management plan for the marine park after the establishment of the marine park. 12—Management of marine parks The Minister must manage a marine park in accordance with a management plan for the park. 13—General nature and content of management plans (1) A management plan for a marine park— (a) must be consistent with the objects of this Act and set out strategies for achieving those objects in relation to the park; and (b) must establish the various types of zones within the park and define their boundaries; and (c) may identify and define the boundaries of special purpose areas within the park and set out the activities that will be permitted in the areas; and (d) may direct the management of day‑to‑day issues associated with any aspect of the park, or the use or protection of the park (including scientific monitoring or research); and (e) may provide guidelines with respect to the granting of permits for various activities that might be allowed within the park. (2) A management plan must take into account— (a) the provisions of a document identified by the Minister, by notice in the Gazette, as the State's general strategic plan; and (b) any relevant state planning policy or regional plan, and the Planning and Design Code, under the Planning, Development and Infrastructure Act 2016; and (c) the provisions of the State Landscape Strategy and any relevant regional landscape plan under the Landscape South Australia Act 2019; and (d) the provisions of any relevant environment protection policy under the Environment Protection Act 1993; and (e) the provisions of any indigenous land use agreement; and (f) the provisions of any statutory instrument under a related operational Act (insofar as is relevant to the operation of this Act and reasonably practicable). 14—Procedure for making or amending management plans (1) The Minister must, as soon as practicable after the establishment of a marine park, commence the process for the making of a management plan in relation to the park (with the view of completing the management plan within 3 years of the date of the relevant proclamation). (2) The Minister must review a management plan at least once in every 10 years. (3) The Minister may propose the amendment of a management plan at any time. (4) The Minister must, in relation to a proposal to make or amend a management plan— (a) by notice published on a website determined by the Minister, give notice of the intention to make or amend a management plan; and (b) publish, on a website determined by the Minister, a statement of the environmental, economic and social values of the area concerned; and (c) prepare a draft of the management plan or amendment and a statement (an impact statement) of the expected environmental, economic and social impacts of the management plan or amendment; and (d) seek the views of— (i) all relevant Ministers; and (ii) the Council; and (iii) a representative of all signatories to any indigenous land use agreement that is in force in relation to any of the area comprising the marine park; and (iv) a representative of any native title holders or claimants that have a native title determination or registered native title claim; and (v) such persons or bodies as the Minister determines to be leading representatives of— (A) the environment and conservation sector; and (B) local government; and (C) the commercial fishing industry; and (D) the aquaculture industry; and (E) the recreational fishing sector; and (F) the mining and petroleum industries; and (G) the tourism sector; and (H) the general business sector, in relation to the draft; and (e) publish the draft management plan and impact statement on a website determined by the Minister (so as to be accessible and capable of being printed without a charge imposed by the Minister), and make copies of the plan and impact statement available for inspection (without charge) or purchase at a place or places determined by the Minister; and (f) by notice published on a website determined by the Minister, specify the place or places at which copies of the draft plan and impact statement are available for inspection (without charge) or purchase and specify an address to which interested persons may send written representations in relation to the draft within the period specified in the notice (being not less than 6 weeks from the date of publication of the notice). (5) The Minister may, in relation to the preparation of a draft to make or amend a management plan, seek the views of any person as he or she sees fit. (6) If the Minister is of the opinion that a draft amendment of a management plan is not substantive in nature— (a) the Minister need not prepare a statement of environmental, economic and social values or an impact statement; and (b) the Minister may dispense with the requirements of subsection (4)(f). (7) At the end of the period referred to in the notice under subsection (4)(f) and, in any event, before adopting a draft management plan, the Minister— (a) must consider any views expressed to the Minister under this section in relation to the draft and any representations made by members of the public in response to the notice; and (b) may make such alterations to the draft as the Minister thinks necessary or desirable. (8) On adopting a draft management plan, the Minister may refer the plan to the Governor and the Governor may, by notice in the Gazette— (a) declare the draft to be an authorised management plan; and (b) fix a day on which the plan will come into operation. (9) The Minister must, within 6 sitting days after the declaration of a management plan for a marine park, cause copies of the plan to be laid before both Houses of Parliament. (10) A failure of the Minister to comply with a requirement of this section does not affect the validity of a management plan. (11) In this section— relevant Minister means a Minister responsible for the administration of a related operational Act. 15—Parliamentary scrutiny Sections 10 and 10A of the Subordinate Legislation Act 1978 apply to an authorised management plan for a marine park (other than an initial management plan) as if it were a regulation within the meaning of that Act. 16—Availability and evidence of management plans (1) Copies of each management plan and of any other document referred to in a management plan must be kept available for inspection (without charge) by the public during ordinary office hours at a place or places determined by the Minister. (2) Each management plan must also be published on a website determined by the Minister. (3) In legal proceedings, evidence of the contents of a management plan or of a document referred to in a management plan may be given by production of a document certified by the Minister as a true copy of the plan or other document. (4) An apparently genuine document purporting to be a certificate of the Minister will be accepted as such in the absence of proof to the contrary. Division 3—Regulation of activities within marine parks 17—Zones (1) Subject to this Act, a person must not contravene a provision of the regulations prohibiting or restricting activities within a zone of a marine park. Maximum penalty: $100 000 or imprisonment for 2 years. (2) If the circumstances of an alleged offence against subsection (1) are constituted by a person undertaking recreational fishing by use of a hand line or rod and line, a prosecution cannot be commenced against the person unless the person had previously been given a warning in the prescribed manner and form by an authorised officer and, in allegedly committing the offence, acted in contravention of that warning. (3) For the purposes of subsection (2), a certificate executed by an authorised officer certifying as to the giving of a warning specified in the certificate constitutes proof of the matters so certified in the absence of proof to the contrary. (4) Subsection (2) does not apply if it is alleged that the offence was committed in a restricted access zone. (5) In this section, hand line, recreational fishing and rod and line have the same respective meanings as in the Fisheries Management Act 2007. 18—Temporary prohibition or restriction of activities (1) The Minister may, by notice published in the Gazette, in a newspaper circulating generally within the State and on a website determined by the Minister, prohibit or restrict specified activities within a marine park, or a zone or other area of a marine park, for a maximum period of 90 days. (2) The Minister may prohibit or restrict specified activities under subsection (1) if, in the Minister's opinion, such a prohibition or restriction is necessary in circumstances of urgency— (a) to protect a species of plant or animal; or (b) to protect a feature of natural or cultural heritage significance; or (c) to protect public safety. (3) The Minister may, by notice published in the Gazette, in a newspaper circulating generally within the State and on a website determined by the Minister, amend, extend or revoke a prohibition or restriction under subsection (1). (4) The maximum period for which a prohibition or restriction may operate under this section is 180 days. (5) A person must not contravene a prohibition or restriction under this section. Maximum penalty: $100 000 or imprisonment for 2 years. Division 4—Permits 19—Permits for activities (1) The Minister may grant a permit to a person to engage in an activity within a marine park, or a zone or other area of a marine park, that would otherwise be prohibited or restricted under Division 3. (2) The regulations may limit the activities for which a permit may be granted under this section. (3) An applicant for a permit under this section must make the application in a manner and form determined by the Minister. (4) The Minister must refuse to grant a permit if the granting of the permit is precluded by the regulations, and may refuse to grant a permit if, in the Minister's opinion, the application should be refused— (a) because the applicant is not a fit and proper person to hold the permit; or (b) because to grant the permit would be prejudicial to the interests of conservation; or (c) for any other sufficient reason, having regard to any applicable guidelines in the management plan for the marine park or the objects of this Act. (5) A permit— (a) must specify the purpose or purposes for which it is issued; and (b) is subject to such conditions as the Minister thinks fit; and (c) may, if the holder of the permit has, in the opinion of the Minister, contravened this Act, be revoked by the Minister by notice in writing given to the person; and (d) may be revoked by the Minister by instrument in writing given to the holder of the permit if, in the opinion of the Minister, it is in the interests of conservation to do so. (6) A condition of a permit may require compliance with a specified code of practice, standard or other document as in force at a specified time or as in force from time to time. (7) A permit— (a) comes into operation on the day fixed in the permit for its commencement or if no such day is fixed, on the day on which it is granted; and (b) expires on the day fixed in the permit for its expiry or, if no such day is fixed, on the expiration of 12 months from the day on which it came into operation. (8) The conditions of a permit may be varied— (a) if a permit is issued for a period of more than 12 months, on the expiration of 12 months from the day on which it came into operation; or (b) at the discretion of the Minister if— (i) the holder of the permit contravenes this Act; or (ii) in the opinion of the Minister, there is significant risk of harm to a marine park occurring; or (iii) a management plan for a marine park is amended resulting in an alteration of the zones, or the boundaries of the zones, of the marine park; or (c) at any time— (i) with the consent of the applicant; or (ii) as provided for by the regulations or a condition of the permit. (9) A permit granted under this section may be transferred only if it is a permit for a prescribed activity or a permit of a prescribed class and the transfer complies with any prescribed conditions. 20—Contravention of condition of permit If the holder of a permit, or a person acting in the employment or with the authority of the holder of a permit, contravenes a condition of the permit, the holder of the permit is guilty of an offence. Maximum penalty: $100 000 or imprisonment for 2 years. Division 5—Affected statutory authorisations 21—Affected statutory authorisations (1) If the rights conferred by a statutory authorisation under another Act are affected by the creation of a zone or the imposition of a temporary prohibition or restriction of activities within a marine park, the Minister must pay fair and reasonable compensation to the holder of the statutory authorisation or, if the Minister considers it appropriate to do so, compulsorily acquire, and pay fair and reasonable compensation for, the statutory authorisation, or any interest (or part of any interest) under a statutory authorisation. (2) The regulations may, for the purposes of this section— (a) provide for a scheme for the payment of compensation to the holders of statutory authorisations whose rights are affected by the creation of a zone or the imposition of a temporary prohibition or restriction of activities within a marine park; (b) provide for a scheme of compulsory acquisition and the payment of compensation to persons whose statutory authorisations, or any interests under a statutory authorisation, are compulsorily acquired; (c) prescribe the method of calculation of amounts payable as compensation under this section; (d) provide for a process of objection and appeal in relation to the payment of compensation under this section. (3) This section, and regulations made for the purposes of this section, will have effect in relation to a statutory authorisation under another Act, despite the provisions of the other Act. Part 4—Administration Division 1—Minister 22—Functions and powers of Minister (1) The Minister has the following functions under this Act: (a) to examine and keep under review the need for areas to be constituted as marine parks; (b) to seek and assess community nominations for marine parks after taking into account the objects of this Act; (c) to prepare and keep under review marine park management plans; (d) to ensure necessary protections are in place through the prohibition or restriction of activities within marine parks under this Act; (e) to issue permits for activities that may be allowed within marine parks under this Act; (f) to consult with relevant persons, bodies or authorities, including indigenous peoples with an association with a marine park, about the measures that should be taken to further the objects of this Act; (g) as far as reasonably practicable and appropriate, to act to integrate the administration of this Act with the administration of other legislation that may affect a marine park; (h) to institute, supervise or promote programs to protect, maintain or improve marine parks; (i) to conduct or promote public education in relation to the protection, improvement or enhancement of marine parks; (j) to keep the state of marine parks under review; (k) to enforce the general duty of care; (l) such other functions as are assigned to the Minister by or under this or any other Act. (2) The Minister has the power to do anything necessary, expedient or incidental to— (a) performing the functions of the Minister under this Act; or (b) administering this Act; or (c) furthering the objects of this Act. (3) Without limiting subsection (2), the Minister may, subject to and in accordance with, the Land Acquisition Act 1969, acquire land for the purposes of this Act. 23—Delegation (1) The Minister may delegate to a person or body (including a person for the time being holding or acting in a specified office or position) a function or power of the Minister under this Act. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the Minister to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. Division 2—Functions of Parks and Wilderness Council under this Act 29—Functions of Council (1) The Council has the following functions: (a) to provide advice to the Minister on the establishment of marine parks, including— (i) advice on any community nominations for marine parks; and (ii) advice on the areas to be specified as marine parks; (b) to provide advice to the Minister in relation to the introduction, variation or revocation of interim protection orders; (c) to provide advice to the Minister in relation to a proposal to alter the boundaries of a marine park; (d) to provide advice to the Minister in relation to a proposal to establish or alter a zone within a marine park; (e) to provide advice to the Minister in relation to the management of marine parks, the formulation and operation of management plans under this Act, and the extent to which the objects of the Act are being achieved through the implementation of management plans under this Act; (f) to provide advice to the Minister on ways to promote community participation in the management of marine parks and the conservation of relevant marine environments; (g) to carry out such other functions as may be assigned to the Council by or under this Act or by the Minister. (2) The Council must, in providing advice to the Minister, take into account the objects of this Act. Division 3—Authorised officers 32—Appointment of authorised officers (1) The following persons are authorised officers under this Act: (a) fisheries officers under the Fisheries Management Act 2007; (b) wardens under the National Parks and Wildlife Act 1972; (c) police officers; (d) persons of a class prescribed by regulation or persons appointed by the Minister, being persons who must, in either case, be employed in the public service of the State. (2) If the area of a marine park includes land within the area of a council, the Minister may appoint persons, nominated by the council, to be authorised officers under this Act. (3) The Minister may, at any time— (a) revoke the appointment of an authorised officer appointed by the Minister; or (b) limit the powers of an authorised officer appointed by the Minister. (4) The Minister may, by notice in the Gazette, limit the powers of a class of persons constituted as authorised officers. 33—Identification of authorised officers (1) A person appointed by the Minister as an authorised officer under this Act must be issued with an identity card— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an authorised officer under this Act; and (c) stating any limitations on the authorised officer's powers. (2) If the powers of an authorised officer appointed by the Minister have been limited, the identity card issued to the authorised officer must contain a statement of those limitations. (3) An authorised officer (other than a police officer in uniform) must, at the request of another person in relation to whom the authorised officer intends to exercise powers under this Part, produce for the other person's inspection— (a) if the officer was appointed by the Minister—the identity card issued to the officer under this section; or (b) if the officer is an authorised officer because the person holds an office under another Act—the identity card issued to the officer under that Act. (4) If a person in possession of an identity card issued to the person under this section ceases to be an authorised officer, the person must immediately return the identity card to the Minister. Maximum penalty: $250. 34—Powers of authorised officers (1) An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this Act— (a) enter any place; or (b) inspect any place, works, plant or equipment; or (c) enter and inspect any vessel or vehicle, and for that purpose require a vessel or vehicle to stop, or to be presented for inspection at a place and time specified by the authorised officer; or (d) give directions with respect to the stopping or movement of a vessel, vehicle, plant, equipment or other thing; or (e) require a person apparently in charge of a vessel or vehicle to facilitate entry and inspection of the vessel or vehicle; or (f) seize and retain anything that the authorised officer reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act; or (g) place any buoys, markers or other items or equipment in order to assist in environmental testing or monitoring; or (h) require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity; or (i) require a person who the authorised officer reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration, operation or enforcement of this Act to answer questions in relation to those matters; or (j) with the authority of a warrant issued by a magistrate, require a person to produce specified documents or documents of a specified kind, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process; or (k) examine, copy or take extracts from a document or information so produced or require a person to provide a copy of such a document or information; or (l) take photographs, films, audio, video or other recordings; or (m) examine or test a vessel, vehicle, plant, equipment, fitting or other thing, or cause or require it to be so examined or tested, or seize it or require its production for such examination or testing; or (n) require a person holding a statutory authorisation or required to hold a statutory authorisation to produce the statutory authorisation for inspection; or (o) give directions reasonably required in connection with the exercise of a power conferred by any of the above paragraphs or otherwise in connection with the administration, operation or enforcement of this Act; or (p) exercise other prescribed powers. (2) An authorised officer must not exercise a power conferred by subsection (1) in respect of a place of residence except on the authority of a warrant issued by a magistrate (but such a power may be exercised in respect of a vessel or vehicle). (3) An authorised officer, in exercising powers under this section, may be accompanied by such assistants as are reasonably required in the circumstances. (4) An authorised officer may, on the authority of a warrant issued by a magistrate, use force to enter a place, vessel or vehicle. (5) A magistrate must not issue a warrant under subsection (2) or subsection (4) in relation to a place, vessel or vehicle unless satisfied that there are reasonable grounds to believe— (a) that a contravention of this Act has been, is being, or is about to be, committed in or on the place, vessel or vehicle; or (b) that something may be found in or on the place, vessel or vehicle that has been used in, or constitutes evidence of, a contravention of this Act; or (c) that the circumstances require immediate action. (6) An application for the issue of a warrant under this section— (a) may be made either personally or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. 35—Hindering etc persons engaged in administration of Act (1) A person who— (a) without reasonable excuse hinders or obstructs an authorised officer or other person engaged in the administration of this Act; or (b) fails to answer a question put by an authorised officer to the best of his or her knowledge, information or belief; or (c) produces a document or record that he or she knows, or ought to know, is false or misleading in a material particular; or (d) fails without reasonable excuse to comply with a requirement or direction of an authorised officer under this Act; or (e) uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or (f) falsely represents, by words or conduct, that he or she is an authorised officer, is guilty of an offence. Maximum penalty: $10 000. (2) A person (other than an authorised officer) who, without the permission of the Minister, removes, destroys or interferes with any marker, peg or other item or equipment placed under section 34(1)(g) is guilty of an offence. Maximum penalty: $10 000. 36—Protection from self-incrimination A person is not obliged to answer a question or to produce a document or record as required under this Part if to do so might tend to incriminate the person or make the person liable to a penalty. Part 5—General duty of care 37—General duty of care (1) A person must take all reasonable measures to prevent or minimise harm to a marine park through his or her actions or activities. (2) In determining what measures are required to be taken, regard must be had, amongst other things, to— (a) the nature of the harm; and (b) the sensitivity of the environment that may be affected and the potential impact of the harm; and (c) the practicality and financial implications of any alternative action, and the current state of technical and scientific knowledge; and (d) any degrees of risk that may be involved; and (e) the significance of the marine park to the State and to the environment and economy of the State; and (f) the extent to which an act or activity may have a cumulative effect on a marine park; and (g) if a statutory authorisation has been granted in respect of the action or activity, any assessment made in connection with the granting of the authorisation of potential harm to the marine park as a result of the action or activity and the extent to which any such harm was intended to be prevented or minimised through the attachment of conditions to the authorisation. (3) A person will be taken not to be in contravention of subsection (1) if the person is acting in circumstances prescribed by the regulations. (4) A person who contravenes subsection (1) is not, on account of the contravention alone, guilty of an offence but— (a) compliance with the duty may be enforced by the issuing of a protection order under Part 6; and (b) a reparation order or reparation authorisation may be issued under that Part in respect of the contravention. Part 6—Protection and other orders Division 1—Orders 38—Protection orders (1) The Minister may issue a protection order under this Division for the purpose of securing compliance with this Act. (2) A protection order— (a) must be in the form of a written notice served on the person to whom the notice is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must state the grounds on which it is made with reasonable particularity; and (d) may impose any requirement reasonably required for the purpose for which the order is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Minister; (ii) a requirement that the person not carry on a specified activity except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action in a specified way, and within a specified period; and (e) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) An authorised officer may, if of the opinion that urgent action is required for the protection of a marine park, issue an emergency protection order imposing requirements of a kind referred to in subsection (2)(d) as reasonably required for the protection of the marine park. (4) An emergency protection order may be issued orally but, in that event, the person to whom the order is issued must be advised immediately of the person's right to appeal to the ERD Court against the order. (5) If an emergency protection order is issued orally, the authorised officer who issued it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) If an emergency protection order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written protection order issued by the Minister and served on the relevant person. (7) The Minister may, by written notice served on a person to whom a protection order has been issued, vary or revoke the order. (8) A person to whom a protection order is issued must comply with the order. Maximum penalty: $10 000. (9) A person must not hinder or obstruct a person complying with a protection order. Maximum penalty: $10 000. 39—Action on non-compliance with protection order (1) If the requirements of a protection order are not complied with, the Minister may take any action required by the order. (2) Action to be taken by the Minister under subsection (1) may be taken on the Minister's behalf by an authorised officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place, vessel or vehicle at any reasonable time. (4) The reasonable costs incurred by the Minister in taking action under this section may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the protection order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the protection order is registered under Division 2. 40—Reparation orders (1) If the Minister is satisfied that a person has caused harm to a marine park by contravention of this Act, the Minister may issue a reparation order requiring the person— (a) to take specified action within a specified period to make good any resulting harm to the marine park; or (b) to make a payment or payments into an approved account for the reasonable costs incurred, or to be incurred, in taking action to make good any resulting harm to the marine park, or both. (2) A reparation order— (a) must be in the form of a written notice served on the person to whom it is issued; and (b) must specify the person to whom it is issued (whether by name or a description sufficient to identify the person); and (c) must state the grounds on which it is made with reasonable particularity; and (d) may include requirements for action to be taken to prevent or mitigate further harm to the marine park, or for a plan of action to be prepared to the satisfaction of the Minister; and (e) may include requirements for specified tests or monitoring; and (f) may include requirements for furnishing to the Minister specified results or reports; and (g) may include requirements that the person to whom it is issued appoint or engage a person with specified qualifications to prepare a plan or report or to undertake tests or monitoring required by the order; and (h) in the case of an order requiring payment into an approved account, may provide that payments must occur in accordance with a scheme specified by the Minister (either at the time of the making of the order or at a later time when the extent or impact of any action has been assessed or finally determined); and (i) must state that the person may, within 14 days, appeal to the ERD Court against the order. (3) An authorised officer may, if of the opinion that urgent action is required to prevent or mitigate further harm, issue an emergency reparation order containing requirements of a kind referred to in subsection (2), other than a requirement for payment into an approved account. (4) An emergency reparation order may be issued orally, but, in that event, the person to whom it is issued must be advised immediately of the person's right to appeal to the ERD Court against the order. (5) If an emergency reparation order is issued orally, the authorised officer who issued it must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom it applies. (6) If an emergency reparation order is issued, the order will cease to have effect on the expiration of 72 hours from the time of its issuing unless confirmed by a written reparation order issued by the Minister and served on the relevant person. (7) The Minister or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in an emergency or other reparation order a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no criminal liability under this Act for compliance with the requirement. (8) The Minister may, by written notice served on a person to whom a reparation order has been issued, vary or revoke the order. (9) A person to whom a reparation order is issued must comply with the order. Maximum penalty: $10 000. 41—Action on non-compliance with a reparation order (1) If the requirements of a reparation order are not complied with, the Minister may take any action required by the order. (2) Action taken by the Minister under subsection (1) may be taken on the Minister's behalf by an authorised officer or another person authorised by the Minister for the purpose. (3) A person taking action under this section may enter any relevant place, vessel or vehicle at any reasonable time. (4) The reasonable costs incurred by the Minister in taking action under this section to make good harm to the marine park may be recovered by the Minister as a debt from the person who failed to comply with the requirements of the reparation order. (5) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation order is registered under Division 2. 42—Reparation authorisations (1) If the Minister is satisfied that a person has caused harm to a marine park by a contravention of this Act, the Minister may (whether or not a reparation order has been issued to the person) issue a reparation authorisation under which authorised officers or other persons authorised by the Minister for the purpose may take specified action on the Minister's behalf to make good any resulting harm to the marine park. (2) A reparation authorisation— (a) must be in the form of a written notice; and (b) must specify the person alleged to have caused the harm (whether by name or a description sufficient to identify the person); and (c) must state the grounds on which it is made with reasonable particularity; and (d) may include authorisation for action to be taken to prevent or mitigate further harm to the marine park. (3) The Minister must, as soon as practicable after issuing a reparation authorisation, serve a copy of the authorisation on the person alleged to have caused the harm. (4) The Minister may, by notice in writing, vary or revoke a reparation authorisation and must, as soon as practicable after doing so, serve a copy of the notice on the person alleged to have caused the harm. (5) If a person other than an authorised officer is authorised to take action under subsection (1), the following provisions apply: (a) the Minister must issue the person with an instrument of authority; (b) the person may exercise such powers of an authorised officer as are reasonably required for the purpose of taking action under that subsection; (c) the provisions of this Act apply in relation to the exercise of such powers by the person in the same way as in relation to an authorised officer; (d) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers of an authorised officer. (6) A person taking action under a reparation authorisation may enter any relevant place, vessel or vehicle at any reasonable time. (7) The reasonable costs incurred by the Minister in taking action under a reparation authorisation to make good harm to the marine park may be recovered by the Minister as a debt from the person who caused the relevant harm. (8) If an amount is recoverable from a person by the Minister under this section— (a) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister on any land owned by the person in relation to which the reparation authorisation is registered under Division 2. 43—Related matters (1) The Minister should, so far as is reasonably practicable, consult with any public authority that may also have power to act with respect to the particular matter before the Minister issues an order or authorisation under this Division. (2) Subsection (1) does not apply— (a) where action is being taken under this Act as a matter of urgency; or (b) in any other circumstance of a prescribed kind. (3) A person cannot claim compensation from— (a) the Minister or the Crown; or (b) an authorised officer; or (c) a person acting under the authority of the Minister or an authorised officer, in respect of a requirement imposed under this Division, or on account of an act or omission done or made in the exercise (or purported exercise) of a power under this Division. Division 2—Registration of orders and effect of charges 44—Registration (1) If— (a) the Minister issues an order or authorisation under Division 1; and (b) the order or authorisation is issued in relation to an activity carried out on land, or requires a person to take action on or in relation to land, the Minister may apply to the Registrar‑General for the registration of the order or authorisation in relation to that land. (2) An application under this section must— (a) define the land to which it relates; and (b) comply with any requirement imposed by the Registrar‑General for the purposes of this section. (3) The Registrar‑General must on— (a) due application under subsection (2); and (b) lodgement of a copy of the relevant order or authorisation, register the order or authorisation in relation to the land by making such entries in any register book, memorial or other book or record in the Lands Titles Registration Office or in the General Registry Office as the Registrar‑General thinks fit. (4) An order or authorisation registered under this section is binding on each owner and occupier from time to time of the land. (5) The Registrar‑General must, on application by the Minister, cancel the registration of an order or authorisation in relation to land and make such endorsements to that effect in the appropriate register book, memorial or other book or record in respect of the land as the Registrar‑General thinks fit. (6) The Minister may, if the Minister thinks fit, apply to the Registrar‑General for cancellation of the registration of an order or authorisation under this section in relation to land, and must do so— (a) on revocation of the order or authorisation; or (b) in relation to— (i) an order— (A) on full compliance with the requirements of the order; (B) if the Minister has taken action under Division 1 to carry out the requirements of the order—on payment to the Minister of any amount recoverable by the Minister under that Division in relation to the action so taken; or (ii) an authorisation—on payment to the Minister of any amount recoverable by the Minister under Division 1 in relation to the action taken in pursuance of the authorisation. 45—Effect of charge A charge imposed on land under Division 1 has priority over— (a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and (b) any other charge on the land other than a charge registered prior to registration under this Division of the relevant order or authorisation in relation to the land. Part 7—Appeals to ERD Court 46—Appeals to ERD Court (1) The following appeals may be made to the ERD Court: (a) a person who is refused a permit may appeal to the Court against the decision of the Minister to refuse the permit; (b) a person who has been granted a permit may appeal to the Court against a decision of the Minister revoking the permit or imposing or varying a condition of the permit; (c) a person to whom a protection order or reparation order has been issued may appeal to the ERD Court against the order or a variation of the order. (2) An appeal must be made in a manner and form determined by the Court, setting out the grounds of the appeal. (3) Subject to this section, an appeal by a person against a decision referred to in subsection (1)(a) or (b) must be made within 21 days after the person receives notice in writing of the decision. (4) Subject to this section, an appeal by a person against an order or a variation of an order referred to in subsection (1)(c) must be made within 21 days after the person receives notice in writing of the order or variation. (5) The Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period fixed by this section. (6) Unless otherwise determined by the Court, an appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to that appeal). (7) Subject to subsection (8), the institution of an appeal does not affect the operation of the decision or order to which the appeal relates. (8) The Court may, on application by a party to an appeal, make an order staying or otherwise affecting the operation or implementation of the whole or a part of a decision or order if the Court is satisfied that it is appropriate to do so having regard to— (a) the possible consequences to the marine park and the interests of any persons who may be affected by the appeal; and (b) the need to secure the effectiveness of the hearing and determination of the appeal. (9) An order under subsection (8)— (a) may be varied or revoked by the Court by further order; and (b) is subject to such conditions as are specified in the order; and (c) has effect until— (i) the end of the period of operation (if any) specified in the order; or (ii) the decision of the Court on the appeal comes into operation, whichever is the earlier. (10) The Court must not make an order under subsection (8) unless each party to the appeal has been given a reasonable opportunity to make submissions in relation to the matter. (11) The Court may, on hearing an appeal under this section— (a) confirm, vary or revoke the decision or order appealed against; (b) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit; (c) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient. Part 8—Civil remedies 47—Civil remedies (1) Applications may be made to the ERD Court for 1 or more of the following orders: (a) if a person has engaged, is engaging or is proposing to engage in conduct in contravention of this Act—an order restraining the person from engaging in the conduct and, if the Court considers it appropriate to do so, requiring the person to take specified action; (b) if a person has refused or failed, is refusing or failing or is proposing to refuse or fail to take action required by this Act—an order requiring the person to take that action; (c) if a person has caused harm to a marine park by a contravention of this Act—an order requiring the person to take specified action to make good any resulting harm to the marine park and, if appropriate, to take specified action to prevent or mitigate further harm; (d) if the