Marine Estate Management Act 2014 (NSW)

Marine Estate Management Act 2014 No 72 An Act to provide for the strategic exercise of government functions in the management of the marine estate of New South Wales; for the declaration and management of marine parks and aquatic reserves; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Marine Estate Management Act 2014. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to provide for the management of the marine estate of New South Wales consistent with the principles of ecologically sustainable development in a manner that— (i) promotes a biologically diverse, healthy and productive marine estate, and (ii) facilitates— • economic opportunities for the people of New South Wales, including opportunities for regional communities, and • the cultural, social and recreational use of the marine estate, and • the maintenance of ecosystem integrity, and • the use of the marine estate for scientific research and education, (b) to promote the co-ordination of the exercise, by public authorities, of functions in relation to the marine estate, (c) to provide for the declaration and management of a comprehensive system of marine parks and aquatic reserves. 4 Definitions (1) In this Act— aircraft means any airborne craft, including a fixed wing craft, helicopter, gyrocopter, glider, hang glider, hot air balloon, drone and airship. animal means any animal-life (other than human), whether vertebrate or invertebrate and in any stage of biological development, and includes a dead animal. aquatic reserve means an aquatic reserve declared under Division 2 of Part 5. authorised officer—see section 66. Authority means the Marine Estate Management Authority established under Division 1 of Part 2. biological diversity means the diversity of life and is made up of the following 3 components— (a) genetic diversity—the variety of genes (or units of heredity) in any population, (b) species diversity—the variety of species, (c) ecosystem diversity—the variety of communities of ecosystems. Commonwealth Native Title Act means the Native Title Act 1993 of the Commonwealth. Crown land has the same meaning as it has in the Crown Land Management Act 2016. diligent inquiry—see section 79. function includes a power, authority or duty, and exercise a function includes perform a duty. management plan for a marine park or an aquatic reserve means the management plan for the marine park or aquatic reserve adopted under Division 5 of Part 5. management rules for a marine park or an aquatic reserve means the management rules for the marine park or aquatic reserve set out in a regulation referred to in section 42. marine park means a marine park declared under Division 1 of Part 5. marine estate—see section 6. Marine Protected Areas Fund means the Marine Protected Areas Fund established under section 74. mineral includes coal, shale or petroleum. native title holder has the same meaning as it has in the Commonwealth Native Title Act. owner has the same meaning as it has in the Local Government Act 1993, and includes a native title holder. plant means any plant-life, whether vascular or non-vascular and in any stage of biological development, and includes fungi, lichens and dead plants. possession of a thing includes having the thing under control at any place, even though some other person has physical possession of the thing. principles of ecologically sustainable development—see subsection (2). public authority includes— (a) a Minister of the Crown, or (b) a government department, or (c) a statutory body representing the Crown, or (d) the trustee or trustees of land reserved or dedicated for any public use or purpose, or (e) a State owned corporation, or (f) a member of staff or other person who exercises functions on behalf of any of the above. public water land means land submerged by water (whether permanently or intermittently), being— (a) Crown land, or (b) land vested in a local council or public authority, or (c) land vested in trustees for public recreation or for any other public purpose, or (d) land acquired by the Minister administering the Fisheries Management Act 1994 under Division 1 of Part 8 of that Act, but does not include land which is the subject of an aquaculture lease under that Act or land of which a person has exclusive possession under a lease under any other Act. registered native title body corporate has the same meaning as it has in the Commonwealth Native Title Act. registered native title claimant has the same meaning as it has in the Commonwealth Native Title Act. relevant Ministers—see section 5. vessel has the same meaning as it has in the Marine Safety Act 1998. wetlands includes marshes, mangroves, swamps, or other areas that form a shallow body of water when inundated intermittently or permanently with brackish or salt water, and where the inundation determines the type and productivity of the soils and the plant and animal communities. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, the principles of ecologically sustainable development require the effective integration of economic, social and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following— (a) the precautionary principle, (b) inter-generational equity, (c) conservation of biological diversity and ecological integrity, (d) improved valuation, pricing and incentive mechanisms. (3) Notes included in this Act do not form part of this Act. 5 Reference to relevant Ministers (1) In this Act, a reference to the relevant Ministers is a reference to the Minister for the Environment and the Minister for Agriculture and Western New South Wales. (2) If a provision of this Act requires or authorises the relevant Ministers to take any action or decide any matter, the provision is taken only to require or authorise the relevant Ministers to take the action jointly or decide the matter jointly. 6 Meaning of "marine estate" In this Act, the marine estate means the following— (a) the coastal waters of the State within the meaning of Part 10 of the Interpretation Act 1987, (b) estuaries (being any part of a river whose level is periodically or intermittently affected by coastal tides) up to the highest astronomical tide, (c) lakes, lagoons and other partially enclosed bodies of water that are permanently, periodically or intermittently open to the sea, (d) coastal wetlands (including saltmarsh, mangroves and seagrass), (e) lands immediately adjacent to, or in the immediate proximity of, the coastal waters of the State that are subject to oceanic processes (including beaches, dunes, headlands and rock platforms), (f) any other place or thing declared by the regulations to be the marine estate, but does not include any place or thing declared by the regulations not to be the marine estate. Part 2 Administration Division 1 Marine Estate Management Authority 7 Establishment of Marine Estate Management Authority (1) There is established by this Act an advisory committee to be called the Marine Estate Management Authority. (2) The Authority consists of— (a) a person appointed by the relevant Ministers who is to be the Chairperson of the Authority, and (b) the Secretary of Regional NSW, and (c) a Public Service senior executive principally involved in the administration of the Biodiversity Conservation Act 2016 and who is designated by the Secretary of the Department of Planning, Industry and Environment, and (d) a Public Service senior executive principally involved in the administration of the Environmental Planning and Assessment Act 1979 and who is designated by the Secretary of the Department of Planning, Industry and Environment, and (e) the Secretary of the Department of Transport, and (f) a person appointed by the relevant Ministers to chair the Marine Estate Expert Knowledge Panel (if the Panel has been established). (3) Schedule 1 deals with the constitution and procedure of the Authority. (4) For the purposes of this clause— Public Service senior executive has the meaning given by the Government Sector Employment Act 2013, Part 4, Division 4. 8 Functions of the Authority (1) The Authority has the functions that are conferred or imposed on it by or under this or any other Act. (2) In particular, the Authority has the following functions— (a) to advise the relevant Ministers on the management of the marine estate and in relation to any matter referred to it by the relevant Ministers, (b) to undertake assessments of threats and risks to the marine estate, (c) to prepare a draft marine estate management strategy for submission to the relevant Ministers in consultation with the relevant public service agencies, (d) without limiting paragraph (a), to advise the relevant Ministers on the implementation of the marine estate management strategy by public authorities, (e) to promote collaboration and co-ordination between public authorities in their exercise of functions relating to the management of the marine estate, (f) to foster consultation with the community in relation to the management of the marine estate and the preparation of the marine estate management strategy. Division 2 Marine Estate Expert Knowledge Panel 9 Establishment and functions of Marine Estate Expert Knowledge Panel (1) The relevant Ministers may establish a Marine Estate Expert Knowledge Panel. (2) The Marine Estate Expert Knowledge Panel may provide advice to the Authority on any matter referred to it by the Authority. (3) The regulations may make provision for the constitution and procedures of the Marine Estate Expert Knowledge Panel. However, in establishing any such Panel, the relevant Ministers must seek to include on the Panel persons with expertise in the fields of the ecological, economic or social sciences. (4) The Marine Estate Expert Knowledge Panel is not subject to the control and direction of the relevant Ministers or the Authority in respect of any advice it provides to the Authority. Part 3 Marine estate management strategy 10 Purpose of marine estate management strategy The purpose of a marine estate management strategy is to set the over-arching strategy for the State government to co-ordinate the management of the marine estate with a focus on achieving the objects of this Act. 11 Preparation of draft marine estate management strategy (1) The Authority is to prepare a draft marine estate management strategy and submit the draft strategy to the relevant Ministers for approval. (2) A draft marine estate management strategy is to be prepared and submitted as soon as practicable after the commencement of this section and at any later times specified by the relevant Ministers. (3) In preparing a draft marine estate management strategy, the Authority is to consider the following— (a) the objects of this Act, (b) any principles for managing the marine estate specified or set out in the regulations, (c) any relevant threat and risk assessment report prepared under this Act, (d) any other matter that the relevant Ministers direct or that is prescribed by the regulations. 12 Contents of draft marine estate management strategy A draft marine estate management strategy must— (a) state the vision and priorities for management of the marine estate, and (b) include any other matters that the relevant Ministers may direct to be included in the strategy or that may be prescribed by the regulations. 13 Consultation on draft marine estate management strategy (1) Before submitting a draft marine estate management strategy to the relevant Ministers for approval, the Authority must— (a) consult on the draft strategy by giving such public notice that the draft strategy has been prepared and undertaking such public exhibition of the draft strategy as is required by the regulations, and (b) seek the advice of Local Land Services and any person or body to which the draft marine estate management strategy is required to be referred by the regulations. (2) The Authority must submit a report on any such consultation and advice with the copy of the draft marine estate management strategy submitted to the relevant Ministers for approval. (3) The relevant Ministers, in approving a draft marine estate management strategy, are to have regard to any such report. (4) A failure to comply with this section does not invalidate a marine estate management strategy. 14 Submission of draft marine estate management strategy for approval The Authority is to submit a copy of the draft marine estate management strategy to the relevant Ministers for approval. 15 Approval of draft marine estate management strategy (1) The relevant Ministers may, by order published in the Gazette, approve a draft marine estate management strategy submitted to them— (a) without alteration, or (b) with such alteration as the relevant Ministers think fit. (2) A marine estate management strategy takes effect on the date that the order is published in the Gazette or from a later date specified in the order. (3) An order under subsection (1) must include a copy of the marine estate management strategy to which the order relates. 16 Publication of marine estate management strategy As soon as practicable after a marine estate management strategy is approved, the relevant Ministers are to arrange for a copy of the strategy to be published on the relevant NSW Government website. 17 Amendment, replacement or revocation of strategy (1) A marine estate management strategy may be amended or replaced by a subsequent strategy prepared and approved in accordance with this Part. (2) A draft marine estate management strategy that amends or replaces an approved strategy is to be prepared by the Authority if requested by the relevant Ministers. (3) The relevant Ministers may, by order published in the Gazette, revoke a marine estate management strategy, wholly or in part. (4) The revocation of the marine estate management strategy takes effect on— (a) the day the order is published in the Gazette, or (b) if a later date is specified in the order—the date specified. 18 Periodic review of marine estate management strategy (1) The relevant Ministers are to ensure that the marine estate management strategy is periodically reviewed. (2) The relevant Ministers may cause a review under this section to be undertaken at any time, but must ensure a review is commenced as soon as possible after— (a) in the case of the first review—the period of 10 years has elapsed since the date that the strategy was approved, and (b) in any other case—the period of 10 years has elapsed since the conclusion of the previous review. (3) A review under this section is to be carried out by an independent person, body or panel appointed by the relevant Ministers. (4) The relevant Ministers may set the terms of reference for such reviews. (5) The person, body or panel conducting the review must have regard to any relevant threat and risk assessment report prepared under this Act. (6) The person, body or panel conducting the review is to prepare a report on the review and submit it to the Authority. (7) The Authority is to consider that report and submit it, and any advice the Authority has regarding the review, to the relevant Ministers. 19 Implementation of marine estate management strategy (1) The relevant Ministers are to have regard to the marine estate management strategy in the exercise of the relevant Ministers' functions under this Act. (2) Public authorities are to have regard to the marine estate management strategy to the extent that the strategy is relevant to the exercise of their functions. (3) This section— (a) does not render the exercise of a function invalid because— (i) it was made without regard to the marine estate management strategy, or (ii) it is inconsistent with achieving the outcomes of the marine estate management strategy, and (b) does not require or authorise action that is inconsistent with any statutory or other legal obligation of a Minister or a public authority. Part 4 Threat and risk assessment 20 Assessment of threats and risks to marine estate (1) The Authority must ensure that an assessment of threats and risks to the marine estate is periodically carried out. (2) The purpose of the threat and risk assessment is— (a) to identify threats to the environmental, economic and social values of the marine estate, and (b) to assess the risks associated with those identified threats, and (c) to inform marine estate management decisions by prioritising those threats and risks according to the level of impact on the values derived from the marine estate. (3) A threat and risk assessment under this section is to be commenced— (a) as soon as possible after— (i) in the case of the first assessment—the commencement of this section, and (ii) in any other case—the period of 10 years has elapsed since the previous assessment, and (b) at any other time determined by the relevant Ministers. (4) The Authority is to carry out the threat and risk assessment in accordance with any standard prescribed by the regulations for the purpose of this section. 21 Threat and risk assessment report (1) The Authority must prepare a report summarising each threat and risk assessment. (2) The threat and risk assessment report is to be provided to the relevant Ministers. (3) However, before the threat and risk assessment report is provided to the relevant Ministers, the Authority must consult on a draft of the report by giving such public notice that a draft report has been prepared and undertaking such public exhibition of the draft report as is required by the regulations. Part 5 Marine parks and aquatic reserves Division 1 Marine parks 22 Purposes of marine parks (1) The primary purpose of a marine park is to conserve the biological diversity, and maintain ecosystem integrity and ecosystem function, of bioregions in the marine estate. (2) The secondary purposes of a marine park are, where consistent with the primary purpose— (a) to provide for the management and use of resources in the marine park in a manner that is consistent with the principles of ecologically sustainable development, and (b) to enable the marine park to be used for scientific research and education, and (c) to provide opportunities for public appreciation and enjoyment of the marine park, and (d) to support Aboriginal cultural uses of the marine park. 23 Declaration of marine parks (1) The Governor, on the recommendation of the relevant Ministers, may, by proclamation, declare an area described in the proclamation to be a marine park. (2) The relevant Ministers must not recommend to the Governor that an area be declared a marine park unless the relevant Ministers have considered— (a) the marine estate management strategy (if one has been approved), and (b) any relevant threat and risk assessment report prepared under this Act. (3) The area that may be so declared includes— (a) any area of waters of the sea or subject to tidal influence, or (b) any area of water, or land, adjacent to such waters, or (c) any area of land within such waters, or (d) any area of land from time to time covered by such waters. (4) A proclamation must not be made under this section— (a) in respect of an area of Crown lands above mean high water mark—without the consent of the Minister administering the Crown Land Management Act 2016, and (b) in respect of any area of land above mean high water mark (whether or not Crown lands)—without the consent of the owner of the land. (5) A declaration under this section in relation to an area is not affected by— (a) an existing interest in respect of land in the area, or (b) a change of ownership of land in the area. (6) Subject to this Act, a provision of this Act or the regulations has effect in relation to an area of a marine park despite any such existing interest or change of ownership, unless the provision otherwise specifies. 24 Name of marine park (1) The Governor may, by proclamation, assign a name to a marine park. (2) The Governor may from time to time, by proclamation, alter the name of a marine park. 25 Revocation of marine park A declaration of a marine park must not be revoked except by an Act of Parliament. 26 Variation of area of marine park (1) The Governor, on the recommendation of the relevant Ministers, may from time to time, by proclamation, vary the area of a marine park. (2) The relevant Ministers must not recommend to the Governor a variation of the area of a marine park unless the relevant Ministers have considered— (a) the marine estate management strategy (if one has been approved), and (b) any relevant threat and risk assessment report prepared under this Act. (3) The relevant Ministers must not recommend to the Governor a variation to a marine park to remove an area unless the relevant Ministers are satisfied that the area is no longer required to be part of the marine park in order to attain the purposes of marine parks set out in this Division. (4) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a proclamation under this section in the same way as those sections apply to a statutory rule. (5) The provisions of section 23 (3)–(6) apply to a variation of an area under this section that adds an area to a marine park in the same way as those provisions apply to the declaration of an area as a marine park. 27 Effect of declaration on aquatic reserves (1) The declaration of an area as a marine park (or part of a marine park) revokes any declaration of the area as an aquatic reserve. (2) An area within a marine park cannot be declared to be an aquatic reserve. 28 Effect of declaration on land reserved or dedicated for public purposes (other than aquatic reserves) (1) Land that is reserved or dedicated for a public purpose may be declared to be a marine park under this Act. (2) The land may be used for the purpose for which it is reserved or dedicated to the extent that the use is not inconsistent with this Act or the regulations or management rules. (3) Nothing in this Act or the regulations permits the land to be used contrary to the provisions of any Act or statutory instrument applying to the land. (4) This section extends to land that is reserved or dedicated under the National Parks and Wildlife Act 1974 or any other Act (other than land declared to be an aquatic reserve). 29 Effect of declaration on aquaculture (1) The declaration of an area as a marine park does not affect any aquaculture permit or aquaculture lease under the Fisheries Management Act 1994 that is in force at the time of the declaration. (2) However, any such lease applying to any area within a marine park must not be extended or renewed under that Act, unless the regulations provide that aquaculture is permissible in the relevant area. (3) Subsection (2) does not affect a person's entitlement to have an aquaculture lease renewed for the first time under section 167 (3) of the Fisheries Management Act 1994. (4) In this section, aquaculture has the same meaning as in the Fisheries Management Act 1994. 30 Dealings in relation to certain land leases within marine park (1) This section applies to land within a marine park that is leased under the Crown Land Management Act 2016. (2) The Minister administering the Crown Land Management Act 2016 must not, under that Act, approve any change in use of land to which this section applies, or approve the conversion, sale or disposal of such land without consulting the relevant Ministers. 31 Compulsory acquisition of land A copy of a proposed acquisition notice under section 11 of the Land Acquisition (Just Terms Compensation) Act 1991 relating to land within a marine park must also be served on the relevant Ministers by the authority proposing to acquire the land. 32 Consent of owners If an owner of land whose consent is required under section 23 or 26 to the making of a proclamation declaring an area to be a marine park or adding an area to a marine park cannot, after diligent inquiry, be found or identified, the proclamation may be made without the consent of that owner. Division 2 Aquatic reserves 33 Purposes of aquatic reserves (1) The primary purpose of an aquatic reserve is to conserve biological diversity, or particular components of biological diversity (such as specific ecosystems, communities or species), in a specified area of the marine estate. (2) The secondary purposes of an aquatic reserve are, where consistent with the primary purpose— (a) to provide for the management and use of resources in the aquatic reserve in a manner that is consistent with the principles of ecologically sustainable development, and (b) to enable the aquatic reserve to be used for scientific research and education, and (c) to provide opportunities for public appreciation and enjoyment of the aquatic reserve, and (d) to support Aboriginal cultural uses of the aquatic reserve. 34 Declaration of aquatic reserves (1) The relevant Ministers may, by notice published in the Gazette, declare an area (or areas) specified in the notice to be an aquatic reserve. (2) Land that is the subject of an aquaculture lease under the Fisheries Management Act 1994 may be declared to be an aquatic reserve. However, nothing in this Division prevents the lessee from undertaking aquaculture in accordance with that Act in the area concerned during the currency of the lease. (3) Land that is dedicated for a public purpose may be declared to be an aquatic reserve. However, nothing in this Division prevents the land from being used for the purpose for which it is dedicated or permits the land to be used contrary to the provisions of any Act or statutory instrument applying to the land. 35 Consent required for declarations (1) The relevant Ministers are required to obtain the appropriate consent before declaring an area to be an aquatic reserve. (2) The appropriate consent for an area (other than an area of public water land) is the consent of the owner of the land concerned. (3) The appropriate consent for an area of public water land is— (a) in the case of public water land that is Crown land—the consent of the Minister administering the Crown Land Management Act 2016, and (b) in the case of public water land that is vested in a local or public authority or in trustees for a public purpose—the consent of that authority or those trustees. (4) This section does not apply— (a) to an area of water and the land submerged by that water below mean high water mark, or (b) to an area vested in the relevant Ministers, or (c) to an area subject to an aquaculture lease under the Fisheries Management Act 1994. 36 Consent of owners If an owner of land whose consent is required under section 35 to the declaration of an area as an aquatic reserve cannot, after diligent inquiry, be found or identified, the declaration may be made without the consent of that owner. 37 Existing interests and changes in ownership (1) A declaration of an aquatic reserve in relation to an area is not affected by— (a) an existing interest in respect of land in the area, or (b) a change of ownership of land in the area. (2) Subject to this Act, a provision of this Act or the regulations has effect in relation to an area of an aquatic reserve despite any such existing interest or change of ownership, unless the provision otherwise specifies. 38 Revocation or variation of declaration of aquatic reserve (1) The relevant Ministers may, subject to this section, revoke or vary the declaration of an aquatic reserve by notice published in the Gazette. (2) Before a declaration is revoked or varied, the relevant Ministers must cause notice of the proposed revocation or variation to be tabled in both Houses of Parliament. (3) Either House of Parliament may pass a resolution disallowing the proposed revocation or variation at any time after notice of the proposal is tabled in that House, but only if notice of the resolution was given within 15 sitting days of that House after notice of the proposal was so tabled. (4) If notice of a resolution to disallow a proposed revocation or variation is duly given, the relevant Ministers may not revoke or vary the declaration unless the resolution is not passed or it is withdrawn or lapses. (5) The provisions of sections 35–37 apply to a variation of a declaration that adds an area to an aquatic reserve in the same way as those provisions apply to the declaration of an aquatic reserve. Division 3 Regulations for the management, protection and conservation of marine parks and aquatic reserves 39 Regulations relating to marine parks and aquatic reserves generally The regulations may make provision for or with respect to the management, protection and conservation of marine parks and aquatic reserves. 40 Other regulations for marine parks and aquatic reserves Without affecting the generality of section 39, the regulations may make provision for or with respect to the following matters— (a) regulating the use and enjoyment of marine parks and aquatic reserves, (b) regulating or prohibiting the carrying out of activities (including commercial activities) within, on or adjacent to marine parks and aquatic reserves either generally or in relation to particular parks or reserves or by reference to different zones within a park or reserve, (c) regulating or prohibiting the taking of animals, plants or materials from or into marine parks and aquatic reserves and the possession of animals, plants or materials that have been taken from marine parks and aquatic reserves, (d) regulating or prohibiting the entry into a marine park or an aquatic reserve (or part of a park or reserve) of all persons or any class of persons, (e) removing from marine parks and aquatic reserves trespassers, persons causing annoyance or inconvenience or persons committing offences, (f) regulating navigation and use of vessels within marine parks and aquatic reserves, or closing a marine park or an aquatic reserve or part of a park or reserve to vessels, (g) regulating where vessels may be moored or anchored within marine parks and aquatic reserves, (h) protecting cultural heritage within marine parks and aquatic reserves,